RULES OF CRIMINAL PROCEDURE
I. SCOPE, PURPOSE AND CONSTRUCTION
RULE 1. SCOPE
These rules govern the procedure in all criminal proceedings
in the circuit courts of West Virginia, as defined in Rule 54(c);
and whenever specifically provided in one of the rules, to criminal
proceedings before West Virginia magistrates.
[Effective October 1, 1981.]
I. SCOPE, PURPOSE AND CONSTRUCTION
RULE 2. PURPOSE AND CONSTRUCTION
These rules are intended to provide for the just determination
of every criminal proceeding. They shall be construed to secure
simplicity in procedure, fairness in administration, and the
elimination of unjustifiable expense and delay.
[Effective October 1, 1981.]
II. PRELIMINARY PROCEEDINGS
RULE 3. THE COMPLAINT
The complaint is a written statement of the essential facts
constituting the offense charged. The complaint shall be presented
to and sworn or affirmed before a magistrate in the county where
the offense is alleged to have occurred. Unless otherwise provided
by statute, the presentation and oath or affirmation shall be made
by a prosecuting attorney or a law enforcement officer showing
reason to have reliable information and belief.
If from the facts stated in the complaint the magistrate finds
probable cause, the complaint becomes the charging instrument
initiating a criminal proceeding.
[Effective October 1, 1981; amended effective September 1, 1995.]
II. PRELIMINARY PROCEEDINGS
RULE 4. ARREST WARRANT OR SUMMONS UPON COMPLAINT
(a) Issuance. If it appears from the complaint, or from an
affidavit or affidavits filed with the complaint, that there is
probable cause to believe that an offense has been committed and
that the defendant has committed it, a warrant for the arrest of
the defendant shall issue to any officer authorized by law to
execute it. The magistrate may restrict the execution of the
warrant to times during which a magistrate is available to conduct
the initial appearance. Within the discretion of the magistrate a
summons instead of a warrant may issue. More than one warrant or
summons may issue on the same complaint. If a defendant fails to
appear in response to the summons, a warrant shall issue.
(b) Probable Cause. The finding of probable cause may be
based upon hearsay evidence in whole or in part.
(c) Form.
(1) Warrant. The warrant shall be signed by the magistrate
and shall contain the name of the defendant or, if the defendant's
name is unknown, any name or description by which the defendant can
be identified with reasonable certainty. It shall describe the offense charged in the complaint. It shall command that the
defendant be arrested and brought before the nearest available
magistrate of the county in which the warrant is executed.
(2) Summons. The summons shall be in the same form as the
warrant except that it shall summon the defendant to appear before
a magistrate at a stated time and place.
(d) Execution or Service; and Return.
(1) By Whom. The warrant shall be executed by any officer
authorized by law to arrest persons charged with offenses against
the state. The summons may be served by any person authorized to
serve a summons in a civil action.
(2) Territorial Limits. The warrant may be executed or the
summons may be served at any place within the state.
(3) Manner. The warrant shall be executed by the arrest of
the defendant. The officer need not have the warrant at the time
of the arrest, but upon request the officer shall show the warrant
to the defendant as soon as possible. If the officer does not have
the warrant at the time of the arrest, the officer shall then
inform the defendant of the offense charged and of the fact that a
warrant has been issued. The summons shall be served upon a
defendant by delivering a copy to the defendant personally, or by
leaving it at the defendant's dwelling house or usual place of
abode with some person of suitable age and discretion then residing
therein and by mailing a copy of the summons to the defendant's
last known address.
(4) Return. The officer executing a warrant shall make return
thereof to the magistrate or other officer before whom the
defendant is brought pursuant to Rule 5. At the request of the
attorney for the state any unexecuted warrant shall be returned to
and canceled by the magistrate by whom it was issued. On or before
the return day the person to whom a summons was delivered for
service shall make return thereof to the magistrate before whom the
summons is returnable. At the request of the attorney for the
state, made at any time while the complaint is pending, a warrant
returned unexecuted and not canceled or a summons returned unserved
or a duplicate thereof may be delivered by the magistrate to an
authorized person for execution or service.
[Effective October 1, 1981; amended effective January 1, 1990;
September 1, 1995.]
II. PRELIMINARY PROCEEDINGS
RULE 5. INITIAL APPEARANCE BEFORE THE MAGISTRATE; BAIL
(a) In General. An officer making an arrest under a warrant
issued upon a complaint or any person making an arrest without a
warrant shall take the arrested person without unnecessary delay
before a magistrate within the county where the arrest is made. If
a person arrested without a warrant is brought before a magistrate,
a complaint shall be filed forthwith which shall comply with the
requirements of Rule 4(a) with respect to the showing of probable
cause. When a person, arrested with or without a warrant or given
a summons, appears initially before the magistrate, the magistrate shall proceed in accordance with the applicable subdivision of this
rule.
(b) Misdemeanor Offense Triable Before a Magistrate. If the
charge against the defendant is an offense triable by a magistrate,
unless the defendant waives the right to a trial on the merits, the
magistrate shall proceed in accordance with the rules of procedure
for magistrates as provided in Chapter 50, Article 5, of the West
Virginia Code of 1931, as amended.
(c) Offenses Not Triable by the Magistrate. If the charge
against the defendant is to be presented for indictment, the
defendant shall not be called upon to plead. The magistrate shall
inform the defendant of the complaint, and of any affidavit filed
therewith, of the right to retain counsel, of the right to request
the assignment of counsel if the defendant is unable to obtain
counsel, and of the general circumstances under which the defendant
may secure pretrial release. The magistrate shall inform the
defendant that he or she is not required to make a statement and
that any statement made by the defendant may be used against him or
her. The magistrate shall also inform the defendant of the right
to a preliminary examination. The magistrate shall allow the
defendant reasonable time and opportunity to consult with counsel
or with at least one relative or other person for the purpose of
obtaining counsel or arranging bail as provided by statute or in
these rules and shall admit the defendant to bail as provided by
statute or in these rules.
If the offense is to be presented for indictment, a defendant
is entitled to a preliminary examination, unless waived. If the
defendant waives preliminary examination, the magistrate clerk
shall transmit forthwith to the clerk of the circuit court all
papers in the proceeding. The magistrate court clerk shall also
transmit to the prosecuting attorney a copy of the criminal case
history sheet. Thereafter, the proceeding shall remain within the
jurisdiction of the circuit court and shall not be remanded to the
magistrate. If the defendant does not waive the preliminary
examination, the magistrate shall schedule a preliminary
examination. Such examination shall be held within a reasonable
time but in any event not later than 10 days following the initial
appearance if the defendant is in custody and no later than 20 days
if the defendant is not in custody; provided, however, that the
preliminary examination shall not be held if the defendant is
indicted or if an information against the defendant is filed in
circuit court before the date set for the preliminary examination.
With the consent of the defendant and upon a showing of good cause,
taking into account the public interest in the prompt disposition
of criminal cases, time limits specified in this subdivision may be
extended one or more times by a magistrate. In the absence of such
consent by the defendant, time limits may be extended by a judge of
the circuit court only upon a showing that extraordinary
circumstances exist and that delay is indispensable to the
interests of justice.
(d) Bail.
(1) The magistrate who originally sets bail retains
jurisdiction with respect to bail only until the case is assigned.
The assigned magistrate shall then have jurisdiction until the
preliminary examination is held or waived, until the trial is held,
or until the case is otherwise disposed of, subject to the proviso
of Rule 2(a) of the Administrative Rules for the Magistrate Courts.
(2) A third party may secure pretrial release in the absence
of a defendant who is in custody when the record contains a written
acknowledgment of the terms and conditions of pretrial release
signed by a magistrate and the defendant. Any magistrate may
accept bail in the absence of the defendant provided that the third
party reviews and agrees to the same terms and conditions of
pretrial release by executing a separate written acknowledgment
before the magistrate. No change may be made in the terms and
conditions of pretrial release between the acknowledgment executed
by the defendant and magistrate and the acknowledgment executed by
the third party.
(3) Except as provided by Rule 5.2(d) of these rules, [FN*] a
magistrate may grant or deny a motion for change of bail or bond
only after due notice to both the defendant and the attorney for
the state and upon hearing, which shall be held within 5 days of
the date the motion is filed.
[Effective October 1, 1981; amended effective January 1, 1993;
September 1, 1995; September 1, 1996.]
II. PRELIMINARY PROCEEDINGS
RULE 5.1 PRELIMINARY EXAMINATION
(a) Probable Cause Finding. If from the evidence it appears
that there is probable cause to believe that an offense has been
committed and that the defendant committed it, the magistrate shall
forthwith hold the defendant to answer in circuit court. The state
shall be represented by the prosecuting attorney at the preliminary
examination. Witnesses shall be examined and evidence introduced
for the state under the rules of evidence prevailing in criminal
trials generally, except that hearsay evidence may be received, if
there is a substantial basis for believing:
(1) That the source of the hearsay is credible;
(2) That there is a factual basis for the information
furnished; and
(3) That it would impose an unreasonable burden on one of the
parties or on a witness to require that the primary source of the
evidence be produced at the hearing.
The defendant may cross-examine adverse witnesses and may introduce
evidence. Objections to evidence on the ground that it was
acquired by unlawful means are not properly made at the preliminary
examination. Motions to suppress must be made to the trial court
as provided in Rule 12. On motion of either the state or the
defendant, witnesses shall be separated and not permitted in the
hearing room except when called to testify.
(b) Discharge of Defendant. If from the evidence it appears
that there is no probable cause to believe that an offense has been
committed or that the defendant committed it, the magistrate shall
dismiss the complaint and discharge the defendant. The discharge
of the defendant shall not preclude the state from instituting a
subsequent prosecution for the same offense.
(c) Records.
(1) A magistrate shall record electronically every preliminary
examination conducted. If by reason of unavoidable cause it is
impossible to record all or part of a preliminary examination
electronically, a magistrate may proceed with the hearing but shall
make a written record of the failure to do so and of the cause
thereof.
A magnetic tape or other electronic recording medium on which
a preliminary examination is recorded shall be indexed and securely
preserved by the magistrate court clerk or, as assigned by the
clerk, by the magistrate assistant.
For evidentiary purposes, a duplicate of such electronic
recording prepared by the clerk of the magistrate or of the circuit
court shall be a "writing" or "recording" as those terms are
defined in Rule 1001 of the West Virginia Rules of Evidence, and
unless the duplicate is shown not to reflect the contents
accurately, it shall be treated as an original in the same manner
that data stored in a computer or similar data is regarded as an
"original" under such rule.
When requested by the state, the defendant, or any interested
person, the clerk of the magistrate or of the circuit court shall
provide a duplicate copy of the tape or other electronic recording
medium of any preliminary examination held. Any defendant
requesting the copy who has not been permitted to proceed with
appointed counsel, any prosecutor who does not supply a blank tape,
and any other person shall pay to the magistrate court an amount
equal to the actual cost of the tape or other medium or the sum of
five dollars, whichever is greater.
Preparation of a transcript of the record or any designated
portions thereof shall be the responsibility of the party desiring
such transcript.
(2) If probable cause is found at the conclusion of a
preliminary examination in magistrate court: (i) the magistrate
clerk shall transmit to the prosecuting attorney a copy of the
criminal case history sheet; (ii) when the proceeding is recorded
electronically, the magistrate clerk shall transmit forthwith to
the clerk of the circuit court all papers and electronic records of
the proceeding; if for unavoidable cause the proceeding or part
thereof has not been recorded electronically, the magistrate shall
promptly make or cause to be made a summary written record of the
proceeding, and the magistrate clerk shall transmit forthwith to
the clerk of the circuit court such record and all other papers of
the proceeding. Once the records of the proceeding are transmitted
to the clerk of the circuit court, the felony charge shall remain within the sole jurisdiction of the circuit court and shall not be
remanded to the magistrate for any purpose.
(d) Juvenile Preliminary Hearings.
(1) Except for section (c)(2), the provisions of this rule
shall apply to hearings conducted pursuant to Chapter 49, Article
5, Section 9, of the West Virginia Code of 1931, as amended.
Certain terms used in this rule shall be read for the purposes of
this subdivision as follows: magistrate shall mean juvenile referee
or circuit judge; defendant shall mean juvenile respondent; offense
shall mean delinquent act. The clerk of the circuit court may
provide a copy of the tape or other electronic recording medium
only as permitted by Chapter 49, Article 5, Section 17 or by
Chapter 49, Article 7, Section 1 of the West Virginia Code of 1931,
as amended.
(2) At the conclusion of a juvenile preliminary hearing when
the proceeding is recorded electronically, the referee or judge
shall transmit forthwith to the clerk of the circuit court all
papers and electronic records of the proceeding; if for unavoidable
cause the proceeding or part thereof has not been recorded
electronically, the referee or judge shall promptly make or cause
to be made a summary written record of the proceeding, and shall
transmit forthwith to the clerk of the circuit court such record
and all other papers of the proceeding.
[Effective October 1, 1981; amended effective January 1, 1993;
September 1, 1995.]
III. INDICTMENT AND INFORMATION
RULE 6. THE GRAND JURY
(a) Summoning Grand Juries. The court may order that a grand
jury be summoned at each term of the circuit court or at any
specified time for either a regular, special or adjourned term of
court. The grand jury shall consist of 16 members, but any fifteen
or more members attending shall constitute a quorum. The court
shall direct that a sufficient number of legally qualified persons
be summoned to meet this requirement as prescribed by Chapter 52,
Article 2, Section 3, of the West Virginia Code of 1931, as
amended.
(b) Objections to Grand Jury and Grand Jurors.
(1) Challenges. The prosecuting attorney or a defendant who
has been held to answer in the circuit court may challenge the
array of jurors on the ground that the grand jury was not selected,
drawn, or summoned in accordance with law, and may challenge an
individual juror on the ground that the juror is not legally
qualified. Challenges shall be made before the administration of
the oath to the jurors and shall be tried by the circuit court.
(2) Motion to Dismiss. A motion to dismiss the indictment may
be based on objections to the array or on the lack of legal
qualifications of an individual juror, if not previously determined
upon challenge. An indictment shall not be dismissed on the ground
that one or more members of the grand jury were not legally qualified if it appears from the record kept pursuant to
subdivision (c) of this rule that 12 or more jurors, after
deducting the number not legally qualified, concurred in finding
the indictment.
(c) Foreperson and Deputy Foreperson. The court shall appoint
one of the jurors to be foreperson and another to be deputy
foreperson. The foreperson shall have power to administer oaths
and affirmations and shall sign all indictments. The foreperson or
another juror designated by the grand jury shall keep a record of
the name of each witness examined by them, the substance of the
evidence given by such witness, and the number of jurors concurring
in the finding of every indictment, and shall file the record with
the clerk of the court, but the record shall not be made public
except on order of the court. During the absence of the
foreperson, the deputy foreperson shall act as foreperson.
(d) Who May Be Present. Attorneys for the state, the witness
under examination, interpreters when needed, and, for the purpose
of taking the evidence, a stenographer or operator of a recording
device may be present while the grand jury is in session, but no
person other than the jurors may be present while the grand jury is
deliberating or voting.
(e) Recording and Disclosure of Proceedings.
(1) Recordings of Proceedings. All proceedings, except when
the grand jury is deliberating or voting, shall be recorded
stenographically or by an electronic recording device. An unintentional failure of any recording to reproduce all or any
portion of a proceeding shall not affect the validity of the
prosecution. The recording or reporter's notes or any transcript
prepared therefrom shall be filed with the clerk of the circuit
court and shall not be made public except on order of the court.
(2) General Rule of Secrecy. A grand juror, an interpreter,
a stenographer, an operator of a recording device, a typist who
transcribes recorded testimony, an attorney for the state, or any
person to whom disclosure is made under paragraph (3)(A)(ii) of
this subdivision shall not disclose matters occurring before the
grand jury, except as otherwise provided for in these rules. No
obligation of secrecy may be imposed on any person except in
accordance with this rule. A knowing violation of Rule 6 may be
punished as a contempt of court.
(3) Exceptions.
(A) Disclosure otherwise prohibited by this rule of matters
occurring before the grand jury, other than its deliberations and
the vote of any grand juror, may be made to:
(i) An attorney for the state for use in the performance of
such attorney's duty; and
(ii) Such official personnel as are deemed necessary by an
attorney for the state to assist an attorney for the state in the
performance of such attorney's duty to enforce criminal law.
(B) Any person to whom matters are disclosed under
subparagraph (A)(ii) of this paragraph shall not utilize that grand jury material for any purpose other than assisting the attorney for
the state in the performance of such attorney's duty to enforce
criminal law. An attorney for the state shall promptly provide the
circuit court, before which was impaneled the grand jury whose
material has been so disclosed, with the names of the persons to
whom such disclosure has been made, and shall certify that the
attorney has advised such persons of their obligation of secrecy
under this rule.
(C) Disclosure otherwise prohibited by this rule of matters
occurring before the grand jury may also be made:
(i) when so directed by a court preliminarily to or in
connection with a judicial proceeding;
(ii) when permitted by a court at the request of the
defendant, upon a showing that grounds may exist for a motion to
dismiss the indictment because of matters occurring before the
grand jury;
(iii) when the disclosure is made by an attorney for the state
to another grand jury; or
(iv) when permitted by a court at the request of an attorney
for the state, upon a showing that such matters may disclose a
violation of federal criminal law or of the law of another state,
to an appropriate official of the federal government or of such
other state for the purposes of enforcing such law.
If the court orders disclosure of matters occurring before the
grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct.
(D) A petition for disclosure pursuant to subdivision
(e)(3)(C)(i) shall be filed in the county where the grand jury
convened. Unless the hearing is ex parte, which it may be when the
petitioner is the state, the petitioner shall serve written notice
of the petition upon (i) the attorney for the state, (ii) the
parties to the judicial proceeding if disclosure is sought in
connection with such a proceeding, and (iii) such other persons as
the court may direct. The court shall afford those persons a
reasonable opportunity to appear and be heard.
(E) If the judicial proceeding giving rise to the petition is
in a circuit court in another county, the court shall transfer the
matter to that court unless it can reasonably obtain sufficient
knowledge of the proceeding to determine whether disclosure is
proper. The court shall order transmitted to the court to which
the matter is transferred the material sought to be disclosed, if
feasible, and a written evaluation of the need for continued grand
jury secrecy. The court to which the matter is transferred shall
afford the aforementioned persons a reasonable opportunity to
appear and be heard.
(4) Sealed Indictments. The court to whom an indictment is
returned may direct that the indictment be kept secret until the
defendant is in custody or has been released pending trial.
Thereupon, the clerk shall seal the indictment and no person shall
disclose the return of the indictment except when necessary for the issuance and execution of a warrant or summons.
(5) Closed Hearing. Subject to any right to an open hearing
in contempt proceedings, the court shall order a hearing on matters
affecting a grand jury proceeding to be closed to the extent
necessary to prevent disclosure of matters occurring before a grand
jury.
(6) Sealed Records. Records, orders and subpoenas relating to
grand jury proceedings shall be kept under seal to the extent and
for such time as is necessary to prevent disclosure of matters
occurring before a grand jury.
(f) Finding and Return of Indictment. An indictment may be
found only upon the concurrence of 12 or more jurors. The
indictment shall be returned by the grand jury to a circuit judge
in open court. If a complaint is pending against the defendant and
12 jurors do not concur in finding an indictment, the foreperson
shall so report to the circuit judge in writing forthwith.
(g) Discharge and Excuse. A grand jury shall serve until
discharged by the court, but no grand jury may serve more than one
year unless the court extends the service of the grand jury for a
period of six months or less upon a determination that such
extension is in the public interest. The tenure and powers of a
grand jury are not affected by the beginning and expiration of a
term of court. At any time for cause shown the court may excuse a
juror either temporarily or permanently, and in the latter event
the court may impanel another person in place of the juror excused.
[Effective October 1, 1981; amended effective February 1, 1985;
September 1, 1995.]
III. INDICTMENT AND INFORMATION
RULE 7. THE INDICTMENT AND THE INFORMATION
(a) Use of Indictment or Information. An offense which may be
punished by life imprisonment shall be prosecuted by indictment.
Any other felony offense may be prosecuted by information if the
indictment is waived. Any misdemeanor may be prosecuted by
indictment or information. An information may be filed without
leave of court.
(b) Waiver of Indictment. Any felony offense which is not
punishable by life imprisonment may be prosecuted by information if
the defendant, after having been advised of the nature of the
charge and of his or her rights by a written waiver signed by the
defendant and his or her counsel and filed as a part of the record,
waives prosecution by indictment.
(c) Nature and Contents.
(1) In General. The indictment or the information shall be a
plain, concise and definite written statement of the essential
facts constituting the offense charged. An indictment shall be
signed by the foreperson of the grand jury and the attorney for the
state. An information shall be signed by the attorney for the
state. The indictment or the information need not contain a formal
commencement, a formal conclusion, or any other matter not
necessary to such statement, except that it shall conclude, against the peace and dignity of the state. Allegations made in one count
may be incorporated by reference in another count. It may be
alleged in a single count that the means by which the defendant
committed the offense are unknown or that the defendant committed
it by one or more specified means. The indictment or information
shall state for each count the official or customary citation of
the statute, rule, regulation or other provision of law which the
defendant is alleged therein to have violated.
(2) Criminal Forfeiture. No judgment of forfeiture may be
entered in a criminal proceeding unless the indictment or the
information shall allege the extent of the interest or property
subject to forfeiture.
(3) Harmless Error. Error in the citation or its omission
shall not be ground for dismissal of the indictment or information
or for reversal of the conviction if the error or omission did not
mislead the defendant to his or her prejudice.
(d) Surplusage. The court on motion of the defendant may
strike surplusage from the indictment or information.
(e) Amendment of Information. The court may permit an
information to be amended at any time before verdict or finding if
no additional or different offense is charged and if substantial
rights of the defendant are not prejudiced.
(f) Bill of Particulars. The court may direct the filing of
a bill of particulars. A motion for a bill of particulars shall be
made pursuant to the provisions of Rule 12(b)(4) or at such later time as the court may permit. A bill of particulars may be amended
at any time subject to such conditions as justice requires.
[Effective October 1, 1981; amended effective September 1, 1995.]
III. INDICTMENT AND INFORMATION
RULE 8. PERMISSIVE AND MANDATORY JOINDER OF OFFENSES AND OF
DEFENDANTS
(a) Joinder of Offenses.
(1) Permissive Joinder. Two or more offenses may be charged
in the same indictment or information in a separate count for each
offense if the offenses charged, whether felonies or misdemeanors
or both, are of the same or similar character.
(2) Mandatory Joinder. If two or more offenses are known or
should have been known by the exercise of due diligence to the
attorney for the state at the time of the commencement of the
prosecution and were committed within the same county having
jurisdiction and venue of the offenses, all such offenses upon
which the attorney for the state elects to proceed shall be
prosecuted by separate counts in a single prosecution if they are
based on the same act or transaction or on two or more acts or
transactions connected together or constituting parts of a common
scheme or plan, whether felonies or misdemeanors or both. Any
offense required by this rule to be prosecuted by a separate count
in a single prosecution cannot be subsequently prosecuted unless
waived by the defendant.
(b) Joinder of Defendants. Two or more defendants may be
charged in the same indictment or information if they are alleged
to have participated in the same act or transaction or in the same
series of acts or transactions constituting an offense or offenses.
Such defendants may be charged in one or more counts together or
separately, and all of the defendants need not be charged in each
count.
[Effective October 1, 1981; amended effective September 1, 1996.]
III. INDICTMENT AND INFORMATION
RULE 9. WARRANT OR SUMMONS UPON INDICTMENT OR INFORMATION
(a) Issuance. Upon the request of the attorney for the state
the court shall issue a warrant for each defendant named in an
information supported by a showing of probable cause under oath as
is required by Rule 4(a), or in an indictment. Upon the request of
the attorney for the state a summons instead of a warrant shall
issue. If no request is made, the court may issue either a warrant
or a summons in its discretion. More than one warrant or summons
may issue for the same defendant. The clerk shall deliver the
warrant or summons to the sheriff or other person authorized by law
to execute or serve it. If a defendant fails to appear in response
to the summons, a warrant shall issue.
(b) Form.
(1) Warrant. The form of the warrant shall be as provided in
Rule 4(c)(1). It shall describe the offense charged in the indictment or information and it shall command that the defendant
be arrested and brought before the court. The amount of bail may
be fixed by the court and endorsed on the warrant.
(2) Summons. The summons shall be in the same form as the
warrant except that it shall summon the defendant to appear before
the court at a stated time and place.
(c) Execution or Service; and Return.
(1) Execution or Service. The warrant shall be executed or
the summons served as provided in Rule 4(d)(1), (2) and (3). A
summons to a corporation shall be served by delivering a copy to an
officer or to a managing or general agent or to any other agent
authorized by appointment or by law to receive service of process
and, if the agent is one authorized by statute to receive service
and the statute so requires, by also mailing a copy to the
corporation's last known address within the county or at its
principal place of business elsewhere in the state. The officer
executing the warrant shall bring the arrested person promptly
before the court.
(2) Return. The officer executing a warrant shall make return
thereof to the court. At the request of the attorney for the state
any unexecuted warrant shall be returned and canceled. On or
before the return day the person to whom a summons was delivered
for service shall make return thereof. At the request of the
attorney for the state made at any time while the indictment or
information is pending, a warrant returned unexecuted and not canceled or a summons returned unserved or a duplicate thereof may
be delivered by the clerk to the sheriff or other authorized person
for execution or service.
(d) Remand to the Magistrate Court for Trial of Misdemeanor
Offense. If the information or indictment charges a misdemeanor
offense and the offense has not previously been brought before a
magistrate, the case may be remanded to the magistrate for a trial
on the merits as provided for in Chapter 50, Article 5, Section 7,
of the West Virginia Code of 1931, as amended.
[Effective October 1, 1981; amended effective September 1, 1995.]
IV. ARRAIGNMENT AND PREPARATION FOR TRIAL
RULE 10. ARRAIGNMENT
Arraignment shall be conducted in open court and shall consist
of reading the indictment or information to the defendant or
stating to the defendant the substance of the charge and calling on
the defendant to plead thereto. The reading of the indictment or
information may be waived by the defendant in open court. The
defendant shall be given a copy of the indictment or information
before being called upon to plead.
[Effective October 1, 1981; amended effective September 1, 1995.]
IV. ARRAIGNMENT AND PREPARATION FOR TRIAL
RULE 11. PLEAS
(a) Alternatives.
(1) In General. A defendant may plead not guilty, guilty, or
nolo contendere. If a defendant refuses to plead or if a defendant
corporation fails to appear, the court shall enter a plea of not
guilty.
(2) Conditional Pleas. With the approval of the court and the
consent of the state, a defendant may enter a conditional plea of
guilty or nolo contendere, reserving in writing the right, on
appeal from the judgment, to review of the adverse determination of
any specified pretrial motion. A defendant who prevails on appeal
shall be allowed to withdraw the plea.
(b) Nolo Contendere. A defendant may plead nolo contendere
only with the consent of the court. Such a plea shall be accepted
by the court only after due consideration of the views of the
parties and the interest of the public in the effective
administration of justice.
(c) Advice to Defendant. Before accepting a plea of guilty or
nolo contendere, the court must address the defendant personally in
open court and inform the defendant of, and determine that the
defendant understands, the following:
(1) The nature of the charge to which the plea is offered, the
mandatory minimum penalty provided by law, if any, and the maximum
possible penalty provided by law; and
(2) If the defendant is not represented by an attorney, that
the defendant has the right to be represented by an attorney at
every stage of the proceeding and, if necessary, one will be appointed to represent the defendant; and
(3) That the defendant has the right to plead not guilty or to
persist in that plea if it has already been made, and that the
defendant has the right to be tried by a jury and at that trial the
right to the assistance of counsel, the right to confront and
cross-examine adverse witnesses, the right against compelled
self-incrimination, and the right to call witnesses; and
(4) That if a plea of guilty or nolo contendere is accepted by
the court there will not be a further trial of any kind, so that by
pleading guilty or nolo contendere the defendant waives the right
to a trial; and
(5) If the court intends to question the defendant under oath,
on the record, and in the presence of counsel about the offense to
which the defendant has pleaded, that the defendant's answers may
later be used against the defendant in a prosecution for perjury or
false swearing.
(d) Ensuring That the Plea Is Voluntary. The court shall not
accept a plea of guilty or nolo contendere without first, by
addressing the defendant personally in open court, determining that
the plea is voluntary and not the result of force or threats or of
promises apart from a plea agreement. The court shall also inquire
as to whether the defendant's willingness to plead guilty or nolo
contendere results from prior discussions between the attorney for
the state and the defendant or the defendant's attorney.
(e) Plea Agreement Procedure.
(1) In General. The attorney for the state and the attorney
for the defendant or the defendant when acting pro se may engage in
discussions with a view toward reaching an agreement that, upon the
entering of a plea of guilty or nolo contendere to a charged
offense or to a lesser or related offense, the attorney for the
state will do any of the following:
(A) Move for dismissal of other charges; or
(B) Make a recommendation or agree not to oppose the
defendant's request, for a particular sentence, with the
understanding that such recommendation or request shall not be
binding upon the court; or
(C) Agree that a specific sentence is the appropriate
disposition of the case; or
(D) Agree not to seek additional indictments or informations
for other known offenses arising out of past transactions.
The court shall not participate in any such discussions.
(2) Notice of Such Agreement. If a plea agreement has been
reached by the parties, the court shall, on the record, require the
disclosure of the agreement in open court or, on a showing of good
cause, in camera, at the time the plea is offered. If the
agreement is of the type specified in subdivision (e)(1)(A), (C),
or (D), the court may accept or reject the agreement, or may defer
its decision as to the acceptance or rejection until there has been
an opportunity to consider the presentence report. If the
agreement is of the type specified in subdivision (e)(1)(B), the court shall advise the defendant that if the court does not accept
the recommendation or request, the defendant nevertheless has no
right to withdraw the plea.
(3) Acceptance of a Plea Agreement. If the court accepts the
plea agreement, the court shall inform the defendant that it will
embody in the judgment and sentence the disposition provided for in
the plea agreement.
(4) Rejection of a Plea Agreement. If the court rejects the
plea agreement, the court shall, on the record, inform the parties
of this fact, advise the defendant personally in open court or, on
a showing of good cause, in camera, that the court is not bound by
the plea agreement, afford the defendant the opportunity to then
withdraw the plea, and advise the defendant that if he or she
persists in a plea of guilty or plea of nolo contendere, the
disposition of the case may be less favorable to the defendant than
that contemplated by the plea agreement.
(5) Time of Plea Agreement Procedure. Except for good cause
shown, notification to the court of the existence of a plea
agreement shall be given at the arraignment or at such other time,
prior to trial, as may be fixed by the court.
(6) Inadmissibility of Pleas, Plea Discussions, and Related
Statements. Except as otherwise provided in this paragraph,
evidence of the following is not, in any civil or criminal
proceeding, admissible against the defendant who made the plea or
was a participant in the plea discussions:
(A) A plea of guilty which was later withdrawn;
(B) A plea of nolo contendere;
(C) Any statement made in the course of any proceedings under
this rule regarding either of the foregoing pleas; or
(D) Any statement made in the course of plea discussions with
an attorney for the state which do not result in a plea of guilty
or which result in a plea of guilty later withdrawn. However, such
a statement is admissible:
(i) In any proceeding wherein another statement made in the
course of the same plea discussions has been introduced and the
statement ought in fairness to be considered contemporaneously with
it; or
(ii) In a criminal proceeding for false swearing if the
statement was made by the defendant under oath, on the record, in
the presence of counsel.
(f) Determining Accuracy of Plea. Notwithstanding the
acceptance of a plea of guilty, the court should not enter a
judgment upon such plea without making such inquiry as shall
satisfy it that there is a factual basis for the plea.
(g) Record of Proceedings. A verbatim record of the
proceedings at which the defendant enters a plea shall be made and,
if there is a plea of guilty or nolo contendere, the record shall
include, without limitation, the court's advice to the defendant,
the inquiry into the voluntariness of the plea, including any plea
agreement, and the inquiry into the accuracy of a guilty plea.
(h) Harmless Error. Any variance from the procedures required
by this rule which does not affect substantial rights shall be
disregarded.
[Effective October 1, 1981; amended effective February 1, 1985;
July 1, 1990; September 1, 1995.]
IV. ARRAIGNMENT AND PREPARATION FOR TRIAL
RULE 12. PLEADINGS AND MOTIONS BEFORE TRIAL; DEFENSES AND
OBJECTIONS
(a) Pleadings and Motions. Pleadings in criminal proceedings
shall be the indictment and information, and the pleas of not
guilty, guilty and nolo contendere. All other pleas, and demurrers
and motions to quash are abolished, and defenses and objections
raised before trial which heretofore could have been raised by one
or more of them shall be raised only by motion to dismiss or to
grant appropriate relief, as provided in these rules.
(b) Pretrial Motions. Any defense, objection or request which
is capable of determination without the trial of the general issue
may be raised before trial by motion. Motions may be written or
oral at the discretion of the judge. The following must be raised
prior to trial:
(1) Defenses and objections based on defects in the
institution of the prosecution; or
(2) Defenses and objections based on defects in the indictment
or information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed
by the court at any time during the pendency of the proceedings);
or
(3) Motions to suppress evidence unless the grounds are not
known to the defendant prior to trial; or
(4) Requests for discovery under Rule 16 or requests for bill
of particulars under Rule 7(f); or
(5) Requests for a severance of charges or defendants under
Rule 14.
(c) Motion Date. Unless otherwise provided by local rule, the
court may, at the time of the arraignment or as soon thereafter as
practicable, set a time for the making of pretrial motions or
requests and, if required, a later date of hearing.
(d) Notice by the State of the Intention to Use Evidence.
(1) At the Discretion of the State. At the arraignment or as
soon thereafter as is practicable, the state may give notice to the
defendant of its intention to use specified evidence at trial in
order to afford the defendant an opportunity to raise objections to
such evidence prior to trial under subdivision (b)(3) of this rule.
(2) At the Request of the Defendant. At the arraignment or as
soon thereafter as is practicable, the defendant may, in order to
afford an opportunity to move to suppress evidence under
subdivision (b)(3) of this rule, request notice of the state's
intention to use (in its evidence in chief at trial) any evidence
which the defendant may be entitled to discover under Rule 16 subject to any relevant limitations prescribed in Rule 16.
(e) Ruling on Motion. A motion made before trial shall be
determined before trial unless the court, for good cause, orders
that it be deferred for determination at the trial of the general
issue or until after the verdict. Where factual issues are
involved in determining a motion, the court shall state its
essential findings on the record.
(f) Effect of Failure to Raise Defenses or Objections.
Failure by a party to raise defenses or objections or to make
requests which must be made prior to trial, at the time set by the
court pursuant to subdivision (c), or prior to any extension
thereof made by the court, may constitute waiver thereof, but the
court for cause shown should grant relief from the waiver.
(g) Records. A verbatim record shall be made of all
proceedings at the hearing, including such findings of fact and
conclusions of law as are made orally.
(h) Effect of Determination. If the court grants a motion
based on a defect in the institution of the prosecution or in the
indictment or information, it may also order that the defendant be
continued in custody or that bail be continued for a specified time
pending the filing of a new indictment or information or appellate
review. Nothing in this rule shall be deemed to affect the
provisions of any West Virginia statute relating to periods of
limitations.
(i) Production of Statements at Suppression Hearing. Except as herein provided, Rule 26.2 shall apply at a hearing on a motion
to suppress evidence under subdivision (b)(3) of this rule. For
purposes of this subdivision, a law enforcement officer shall be
deemed a state witness.
[Effective October 1, 1981; amended effective February 1, 1985;
September 1, 1995.]
IV. ARRAIGNMENT AND PREPARATION FOR TRIAL
RULE 12.1 NOTICE OF ALIBI
(a) Notice by Defendant. Upon written demand of the attorney
for the state stating the time, date and place at which the alleged
offense was committed, the defendant shall serve within 10 days, or
at such different time as the court may direct, upon the attorney
for the state a written notice of the defendant's intention to
offer a defense of alibi. Such notice by the defendant shall state
the specific place or places at which the defendant claims to have
been at the time of the alleged offense and the names and addresses
of the witnesses upon whom the defendant intends to rely to
establish such alibi.
(b) Disclosure of Information and Witness. Within 10 days
thereafter, but in no event less than 10 days before trial, unless
the court otherwise directs, the attorney for the state shall serve
upon the defendant or the defendant's attorney a written notice
stating the names and addresses of the witnesses upon whom the
state intends to rely to establish the defendant's presence at the scene of the alleged offense and any other witnesses to be relied
on to rebut testimony of any of the defendant's alibi witnesses.
(c) Continuing Duty to Disclose. If prior to or during trial,
a party learns of an additional witness whose identity, if known,
should have been included in the information furnished under
subdivisions (a) or (b), the party shall promptly notify the other
party or the other party's attorney of the existence and identity
of such additional witness.
(d) Failure to Comply. Upon the failure of either party to
comply with the requirements of this rule, the court may exclude
the testimony of an undisclosed witness offered by such party as to
the defendant's absence from or presence at the scene of the
alleged offense. This rule shall not limit the right of the
defendant to testify.
(e) Exceptions. For good cause shown, the court may grant an
exception to any of the requirements of subdivisions (a) through
(d) of this rule.
(f) Inadmissibility of Withdrawn Alibi. Evidence of an
intention to rely upon an alibi defense, later withdrawn, or of
statements made in connection with such intention, is not
admissible in any civil or criminal proceeding against the person
who gave notice of the intention.
[Effective October 1, 1981; amended effective September 1, 1995.]
IV. ARRAIGNMENT AND PREPARATION FOR TRIAL
RULE 12.2 NOTICE OF INSANITY DEFENSE OR EXPERT TESTIMONY OF
DEFENDANT'S MENTAL CONDITION
(a) Defense of Insanity. If a defendant intends to rely upon
the defense of insanity at the time of the alleged crime, the
defendant shall, within the time provided for the filing of
pretrial motions or at such later time as the court may direct,
notify the attorney for the state in writing of such intention and
file a copy of such notice with the clerk. If there is a failure
to comply with the requirements of this subdivision, insanity may
not be raised as a defense. The court may for cause shown allow
late filing of the notice or grant additional time to the parties
to prepare for trial or make such other order as may be
appropriate.
(b) Expert Testimony of Defendant's Mental Condition. If a
defendant intends to introduce expert testimony relating to a
mental disease or defect or any other mental condition of the
defendant bearing upon the issue of guilt, the defendant shall,
within the time provided for the filing of pretrial motions or at
such later time as the court may direct, notify the attorney for
the state in writing of such intention and file a copy of such
notice with the clerk. The court may for cause shown allow late
filing of the notice or grant additional time to the parties to
prepare for trial or make such other order as may be appropriate.
(c) Mental Examination of Defendant. In an appropriate case
the court may, upon motion of the attorney for the state, order the defendant to submit to a mental examination by a psychiatrist or
other expert designated for this purpose in the order of the court.
No statement made by the defendant in the course of any examination
provided for by this rule, whether the examination be with or
without the consent of the defendant, no testimony by the expert
based upon such statement, and no other fruits of the statement
shall be admitted in evidence against the defendant in any criminal
proceeding except on an issue respecting mental condition on which
the defendant has introduced testimony.
(d) Procedure for Psychiatric Examination. In any case where
the court determines that a mental examination is required, the
court shall proceed in conformity with Chapter 27, Article 6A,
Section 1, of the West Virginia Code of 1931, as amended.
(e) Failure to Comply. If there is a failure to give notice
when required by subdivision (b) of this rule or to submit to an
examination when ordered under subdivision (c) of this rule, the
court may exclude the testimony of any expert witness offered by
the defendant on the issue of his or her mental condition.
(f) Inadmissibility of Withdrawn Intention. Evidence of an
intention as to which notice was given under subdivision (a) or
(b), later withdrawn, is not admissible in any civil or criminal
proceeding against the person who gave notice of the intention.
[Effective October 1, 1981; amended effective February 1, 1985;
September 1, 1995.]
IV. ARRAIGNMENT AND PREPARATION FOR TRIAL
RULE 13. TRIAL TOGETHER OF INDICTMENTS OR INFORMATION
The court may order two or more indictments or informations or
both to be tried together if the offenses, and the defendants if
there is more than one, could have been joined in a single
indictment or information, except that the court may not order a
joint trial of more than one defendant in a felony case if a
defendant or the state objects. The procedure shall be the same as
if the prosecution were under such single indictment or
information.
[Effective October 1, 1981; amended effective September 1, 1995.]
IV. ARRAIGNMENT AND PREPARATION FOR TRIAL
RULE 14. RELIEF FROM PREJUDICIAL JOINDER
(a) Offenses. If it appears that a defendant or the state is
prejudiced by a joinder of offenses in an indictment or information
or by such joinder for trial together, the court may order an
election or separate trials of the counts or provide whatever other
relief justice requires. In ruling on a motion by a defendant for
severance the court may order the attorney for the state to deliver
to the court for inspection in camera any statements or confessions
made by the defendant or other relevant information which the state
intends to introduce in evidence at the trial.
(b) Defendants. Upon a joint indictment or information in a
felony case against several persons, the court shall upon motion of
any defendant or the state order separate trials. If it appears that a defendant or the state is prejudiced by a joinder of
defendants in a misdemeanor indictment or information, the court
may order separate trials of the defendants. In ruling on a motion
by a defendant for severance in a misdemeanor case, the court may
order the attorney for the state to deliver to the court for
inspection in camera any statements or confessions made by the
defendants or other relevant information which the state intends to
introduce into evidence at the trial.
[Effective October 1, 1981.]
IV. ARRAIGNMENT AND PREPARATION FOR TRIAL
RULE 15. DEPOSITIONS
(a) When Taken. Whenever due to exceptional circumstances of
the case it is in the interest of justice that the testimony of a
prospective witness of a party be taken and preserved for use at
trial, the court may upon motion of such party and notice to the
parties order that testimony of such witness be taken by deposition
and that any designated book, paper, document, record, recording or
other material not privileged be produced at the same time and
place. If a witness is committed for failure to give bail to
appear to testify at a trial or hearing, the court on written
motion of the witness and upon notice to the parties may direct
that the witness' deposition be taken. After the deposition has
been subscribed, the court may discharge the witness.
(b) Notice of Taking. The party at whose instance a deposition is to be taken shall give to every party reasonable
written notice of the time and place for taking the deposition.
The notice shall state the name and address of each person to be
examined. On motion of a party upon whom the notice is served, the
court for cause shown may extend or shorten the time or change the
place for taking the deposition. The officer having custody of a
defendant shall be notified of the time and place set for the
examination and shall, unless the defendant waives in writing the
right to be present, produce the defendant at the examination and
keep him or her in the presence of the witness during the
examination, unless after being warned by the court that disruptive
conduct will cause the defendant's removal from the place of the
taking of the deposition, the defendant persists in conduct which
is such as to justify exclusion from that place. A defendant not
in custody shall have the right to be present at the examination
upon request subject to such terms as may be fixed by the court,
but the defendant's failure, absent good cause shown, to appear
after notice and tender of expenses in accordance with subdivision
(c) of this rule shall constitute a waiver of that right and of any
objection to the taking and use of the deposition based upon that
right.
(c) Payment of Expenses. Whenever a deposition is taken at
the instance of the state, or whenever a deposition is taken at the
instance of a defendant who is unable to bear the expenses of the
taking of the deposition, the court may direct that the expense of travel and subsistence of the defendant and the defendant's
attorney for attendance at the examination and the cost of the
transcript of the deposition shall be paid by the state.
(d) How Taken. Subject to such additional conditions as the
court shall provide, a deposition shall be taken and filed in the
manner provided in civil actions except as otherwise provided in
these rules, provided that:
(1) In no event shall a deposition be taken of a party
defendant without that defendant's consent; and
(2) The scope and manner of examination and cross-examination
shall be such as would be allowed in the trial itself.
The state shall make available to the defendant or the
defendant's counsel for examination and use at the taking of the
deposition any statement of the witness being deposed which is in
the possession of this state and to which the defendant would be
entitled at the trial.
(e) Use. At the trial or upon any hearing, a part or all of
a deposition, so far as otherwise admissible under the rules of
evidence, may be used as substantive evidence if the witness is
unavailable, as unavailability is defined in Rule 804(a) of the
West Virginia Rules of Evidence , or the witness gives testimony at
the trial or hearing inconsistent with his or her deposition. Any
deposition may also be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent as a
witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require the offering of all of it
which is relevant to the part offered and any party may offer other
parts.
(f) Objections to Deposition Testimony. Objections to
deposition testimony or evidence or parts thereof and the grounds
for the objection shall be stated at the time of the taking of the
deposition.
(g) Deposition by Agreement Not Precluded. Nothing in this
rule shall preclude the taking of a deposition, orally or upon
written questions, or the use of a deposition by agreement of the
parties with the consent of the court.
[Effective October 1, 1981; amended effective September 1, 1995.]
IV. ARRAIGNMENT AND PREPARATION FOR TRIAL
RULE 16. DISCOVERY AND INSPECTION
(a) Disclosure of Evidence by the State.
(1) Information Subject to Disclosure.
(A) Statement of Defendant. Upon request of a defendant the
state must disclose to the defendant and make available for
inspection, copying, or photographing: any relevant written or
recorded statements made by the defendant, or copies thereof,
within the possession, custody or control of the state, the
existence of which is known, or by the exercise of due diligence
may become known, to the attorney for the state; that portion of
any written record containing the substance of any relevant oral statement made by the defendant, whether before or after arrest in
response to interrogation by any person then known to the defendant
to be an agent of the state; and recorded testimony of the
defendant before a grand jury which relates to the offense charged.
The state must also disclose to the defendant the substance of any
other relevant oral statement made by the defendant whether before
or after arrest in response to interrogation by any person then
known by the defendant to be an agent of the state if the state
intends to use that statement at trial. Upon request of a
defendant which is an organization such as a corporation,
partnership, association or labor union, the state must disclose to
the defendant any of the foregoing statements made by a person who
the state contends:
(i) Was, at the time of making the statement, so situated as
a director, officer, employee, or agent as to have been able
legally to bind the defendant in respect to the subject of the
statement; or
(ii) Was, at the time of the offense, personally involved in
the alleged conduct constituting the offense and so situated as a
director, officer, employee or agent as to have been able legally
to bind the defendant in respect to that alleged conduct in which
the person was involved.
(B) Defendant's Prior Record. Upon request of the defendant,
the state shall furnish to the defendant such copy of his or her
prior criminal record, if any, as is within the possession, custody or control of the state, the existence of which is known, or by the
exercise of due diligence may become known, to the attorney for the
state.
(C) Documents and Tangible Objects. Upon request of the
defendant, the state shall permit the defendant to inspect and copy
or photograph books, papers, documents, photographs, tangible
objects, buildings or places, or copies or portions thereof, which
are within the possession, custody and control of the state, and
which are material to the preparation of the defense or are
intended for use by the state as evidence in chief at the trial, or
were obtained from or belong to the defendant.
(D) Reports of Examinations and Tests. Upon request of the
defendant the state shall permit the defendant to inspect and copy
or photograph any results or reports of physical or mental
examinations, and of scientific tests or experiments, or copies
thereof, which are within the possession, custody or control of the
state, the existence of which is known, or by the exercise of due
diligence may become known, to the attorney for the state, and
which are material to the preparation of the defense or are
intended for use by the state as evidence in chief at the trial.
(E) Expert Witnesses. Upon request of the defendant, the
state shall disclose to the defendant a written summary of
testimony the state intends to use under Rule 702, 703, or 705 of
the Rules of Evidence during its case in chief at trial. The
summary must describe the witnesses' opinions, the bases and reasons therefor, and the witnesses' qualifications.
(F) State Witnesses. Upon request of the defendant, the state
shall furnish to the defendant a written list of names and
addresses of all state witnesses whom the attorney for the state
intends to call in the presentation of the case in chief, together
with any record of prior convictions of any such witnesses which is
within the knowledge of the state. When a request for discovery of
the names and addresses of witnesses has been made by a defendant,
the state may be allowed to perpetuate the testimony of such
witnesses in accordance with the provisions of Rule 15.
(2) Information Not Subject to Disclosure. Except as provided
in paragraphs (A), (B), (D) and (E) of subdivision (a)(1), this
rule does not authorize the discovery or inspection of reports,
memoranda or other internal official documents made by the attorney
for the state or other state officials in connection with the
investigation or prosecution of the case, or of statements made by
state witnesses or prospective state witnesses except as provided
in Rule 26.2.
(3) Grand Jury Transcripts. Except as provided in Rules 6,
12(i) and 26.2, and subdivision (a)(1)(A) of this rule, these rules
do not relate to discovery or inspection of recorded proceedings of
a grand jury.
(b) Disclosure of Evidence by the Defendant.
(1) Information Subject to Disclosure.
(A) Documents and Tangible Objects. If the defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon
compliance with such request by the state, the defendant, on
request of the state, shall permit the state to inspect and copy or
photograph books, papers, documents, photographs, tangible objects
or copies or portions thereof, which are within the possession,
custody or control of the defendant and which the defendant intends
to introduce as evidence in chief at the trial.
(B) Reports of Examinations and Tests. If the defendant
requests disclosure under subdivision (a)(1)(C) or (D) of this
rule, upon compliance with such request by the state, the
defendant, on request of the state, shall permit the state to
inspect and copy or photograph any results or reports of physical
or mental examinations and of scientific tests or experiments made
in connection with the particular case, or copies thereof, within
the possession or control of the defendant, which the defendant
intends to introduce as evidence in chief at the trial or which
were prepared by a witness whom the defendant intends to call at
the trial when the results or reports relate to that witness'
testimony.
(C) Expert Witnesses. If the defendant requests disclosure
under subdivision (a)(1)(E) of this rule and the state complies,
the defendant, at the state's request, must disclose to the state
a written summary of testimony the defendant intends to use under
Rules 702, 703, and 705 of the Rules of Evidence as evidence at
trial. The summary must describe the opinions of the witnesses, the bases and reasons therefor, and the witnesses' qualifications.
(D) Defense Witnesses. If the defendant requests disclosure
under subdivision (a)(1)(F) of this rule, upon compliance with such
request by the state, the defendant, on the request of the state,
shall furnish the state with a list of the names and addresses of
the witnesses the defendant intends to call in the presentation of
the case in chief. When a request for discovery of the names and
addresses of witnesses has been made by the state, the defendant
may be allowed to perpetuate the testimony of such witnesses in
accordance with the provisions of Rule 15.
(2) Information Not Subject to Disclosure. Except as to
scientific or medical reports, this subdivision does not authorize
the discovery or inspection of reports, memoranda, or other
internal defense documents made by the defendant, or the
defendant's attorneys or agents, in connection with the
investigation or defense of the case, or of statements made by the
defendant, or by state or defense witnesses, or by prospective
state or defense witnesses, to the defendant, the defendant's
agents or attorneys, except as provided in Rule 26.2.
(c) Continuing Duty to Disclose. If, prior to or during
trial, a party discovers additional evidence or material previously
requested or ordered, which is subject to discovery or inspection
under this rule, such party shall promptly notify the other party
or that other party's attorney or the court of the existence of the
additional evidence or material.
(d) Regulation of Discovery.
(1) Protective and Modifying Orders. Upon a sufficient
showing the court may at any time order that the discovery or
inspection be denied, restricted or deferred, or make such other
order as is appropriate. Upon motion by a party, the court may
permit the party to make such showing, in whole or in part, in the
form of a written statement to be inspected by the judge alone. If
the court enters an order granting relief following such an ex
parte showing, the entire text of the party's statement shall be
sealed and preserved in the records of the court to be made
available to the appellate court in the event of an appeal.
(2) Failure to Comply With a Request. If at any time during
the course of the proceedings it is brought to the attention of the
court that a party has failed to comply with this rule, the court
may order such party to permit the discovery or inspection, grant
a continuance, or prohibit the party from introducing evidence not
disclosed, or it may enter such other order as it deems just under
the circumstances. The court may specify the time, place and
manner of making the discovery and inspection and may prescribe
such terms and conditions as are just.
(e) Alibi Witnesses. Discovery of alibi witnesses is governed
by Rule 12.1.
[Effective October 1, 1981; amended effective February 1, 1985;
September 1, 1995.]
IV. ARRAIGNMENT AND PREPARATION FOR TRIAL
RULE 17. SUBPOENA
(a) For Attendance of Witnesses; Form; Issuance. A subpoena
shall be issued by the clerk under the seal of the court. It shall
state the name of the court and the title, if any, of the
proceeding, and shall command each person to whom it is directed to
attend and give testimony at the time and place specified therein.
The clerk shall issue a subpoena, signed and sealed but otherwise
in blank, to a party requesting it, who shall fill in the blanks
before it is served. A subpoena shall be issued by a magistrate in
a proceeding before that magistrate, but it need not be under the
seal of the court.
(b) Defendants Unable to Pay. The court shall order at any
time that a subpoena be issued for service on a named witness upon
an ex parte application of a defendant upon a satisfactory showing
that the defendant is financially unable to pay the fees of the
witness and that the presence of the witness is necessary to an
adequate defense. If the court orders the subpoena to be issued,
the costs incurred by the process and the fees of the witness so
subpoenaed shall be paid in the same manner in which similar costs
and fees are paid in case of a witness subpoenaed in behalf of the
state.
(c) For Production of Documentary Evidence and of Objects. A
subpoena may also command the person to whom it is directed to
produce the books, papers, documents or other objects designated
therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The
court may direct that books, papers, documents or objects
designated in the subpoena be produced before the court at a time
prior to trial or prior to the time when they are to be offered in
evidence and may upon their production permit the books, papers,
documents or objects or portions thereof to be inspected by the
parties and their attorneys.
(d) Service. A subpoena may be served by the sheriff, by a
deputy sheriff, or by any other credible person who is not a party
and who is not less than 18 years of age. Service of a subpoena
shall be made by delivering a copy thereof to the person named and
by tendering to that person, if demanded, the fee for one day's
attendance and the mileage allowed by law. Fees and mileage need
not be tendered to the witness upon service of a subpoena issued in
behalf of the state or an officer or agency thereof.
(e) Place of Service. A subpoena requiring the attendance of
a witness at a hearing or trial may be served at any place within
the state.
(f) For Taking Deposition; Place of Examination.
(1) Issuance. An order to take a deposition authorizes the
issuance by the clerk of the court for the county in which the
deposition is to be taken of subpoenas for the persons named or
described therein.
(2) Place. The witness whose deposition is to be taken may be
required by subpoena to attend at any place designated within the state by the trial court, taking into account the convenience of
the witness and the parties.
(g) Contempt. Failure by any person without adequate excuse
to obey a subpoena served upon that person may be deemed a contempt
of the court from which the subpoena was issued or of the circuit
court for the county in which it was issued if it was issued by a
magistrate.
(h) Information Not Subject to Subpoena. Statements made by
witnesses or prospective witnesses may not be subpoenaed from the
state or the defendant under this rule, but shall be subject to
production only in accordance with the provisions of Rule 26.2.
[Effective October 1, 1981; amended effective September 1, 1995.]
IV. ARRAIGNMENT AND PREPARATION FOR TRIAL
RULE 17.1 PRETRIAL CONFERENCE
At any time after the filing of the indictment or information,
the court upon motion of any party or upon its own motion may order
one or more conferences to consider such matters as will promote a
fair and expeditious trial. At the conclusion of a conference the
court shall prepare and file a memorandum of the matters agreed
upon. No admissions made by the defendant or the defendant's
attorney at the conference shall be used against the defendant
unless the admissions are reduced to writing and signed by the
defendant and the defendant's attorney. This rule shall not be
invoked in the case of a defendant who is not represented by counsel.
[Effective October 1, 1981; amended effective September 1, 1995.]
V. VENUE
RULE 18. PLACE OF PROSECUTION AND TRIAL
Except as otherwise permitted by statute or by these rules,
the prosecution shall be had in a county in which the offense was
committed.
[Effective October 1, 1981.]
V. VENUE
RULE 19. TRANSFER WITHIN THE COUNTY
In a circuit consisting of two or more judges the arraignment
may be had, a plea entered, the trial conducted, or sentence
imposed by any judge and at any time.
[Effective October 1, 1981.]
V. VENUE
RULE 20. [RESERVED]
V. VENUE
RULE 21. TRANSFER FROM THE COUNTY OF INDICTMENT FOR TRIAL
(a) For Prejudice in the County of Indictment. The circuit
court upon motion of the defendant shall transfer the proceedings
as to that defendant to another county if the circuit court is
satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he or she
cannot obtain a fair and impartial trial at the place fixed by law
for holding the trial.
(b) Proceedings on Transfer. When a transfer is ordered the
clerk shall transmit to the clerk of the court to which the
proceeding is transferred all papers in the proceedings or
duplicates thereof and any bail taken, and the prosecution shall
continue in that county.
[Effective October 1, 1981; amended effective September 1, 1995.]
V. VENUE
RULE 22. TIME OF MOTION TO TRANSFER
A motion to transfer under these rules may be made at or
before arraignment or at such other time as the court or these
rules may prescribe.
[Effective October 1, 1981.]
VI. TRIAL
RULE 23. TRIAL BY JURY OR BY THE COURT
(a) Trial by Jury. Cases required to be tried by jury shall
be so tried unless the defendant waives a jury trial in writing
with the approval of the court and the consent of the state.
(b) Jury of Less Than Twelve. Juries shall be of 12, but at
any time before verdict the parties may stipulate in writing with
the approval of the court that the jury shall consist of any number less than 12 or that a valid verdict may be returned by a jury of
less than 12 should the court find it necessary to excuse one or
more jurors for any just cause after trial commences.
(c) Trial Without a Jury. In a case tried without a jury, the
court shall make a general finding and shall, in addition, on
request made before the general finding, find the facts specially.
Such findings may be oral. If an opinion or memorandum of decision
is filed, it will be sufficient if the findings of fact appear
therein.
[Effective October 1, 1981; amended effective September 1, 1995.]
VI. TRIAL
RULE 24. TRIAL JURORS
(a) Examination. The court may permit the defendant or the
defendant's attorney and the attorney for the state to conduct the
examination of prospective jurors or may itself conduct the
examination. In the latter event the court shall permit the
defendant or the defendant's attorney and the attorney for the
state to supplement the examination by such further inquiry as it
deems proper or shall itself submit to the prospective jurors such
additional questions by the parties or their attorneys as it deems
proper.
(b) Peremptory Challenges.
(1) Number of Challenges.
(A) Felony Cases. If the offense charged is punishable by imprisonment for more than one year, the defendant shall have six
peremptory challenges and the state shall have two peremptory
challenges. The state shall first exercise its two challenges
before the defendant is called upon to exercise his or her six
peremptory challenges.
(B) Misdemeanor Cases. If the offense charged is punishable
by imprisonment for not more than one year or by fine or both, each
side is entitled to four peremptory challenges.
(2) Relief From Limitations.
(A) For Cause. For good cause shown, the court may grant such
additional challenges as it, in its discretion, believes necessary
and proper.
(B) Multiple Defendants. If there is more than one defendant
the court may allow the parties additional challenges and permit
them to be exercised separately or jointly.
(C) Time for Making Motion. A motion for relief under
subdivision (b)(2) of this rule shall be filed at least one week in
advance of the first scheduled trial date or within such other time
as may be ordered by the circuit court.
(c) Alternate Jurors. The court may direct that more jurors
in addition to the regular jury be called and impaneled to sit as
alternate jurors. Alternate jurors in the order in which they are
called shall replace jurors who, prior to the time the jury retires
to consider its verdict, become or are found to be unable or
disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall
be subject to the same examination and challenges, shall take the
same oath, and shall have the same functions, powers, facilities
and privileges as the regular jurors. An alternate juror who does
not replace a regular juror shall be discharged after the jury
retires to consider its verdict. Each side is entitled to one
peremptory challenge in addition to those otherwise allowed by law
if one or two alternate jurors are to be impaneled, two peremptory
challenges if three or four alternate jurors are to be impaneled,
and three peremptory challenges if five or six alternate jurors are
to be impaneled. The additional peremptory challenges may be used
against an alternate juror only, and the other peremptory
challenges allowed by these rules may not be used against an
alternate juror.
[Effective October 1, 1981; amended effective September 1, 1995.]
VI. TRIAL
RULE 26. TAKING OF TESTIMONY
In all trials the testimony of witnesses shall be taken orally
in open court, unless otherwise provided by these rules, the West
Virginia Rules of Evidence, or other rules adopted by the Supreme
Court of Appeals.
[Effective October 1, 1981; amended effective February 1, 1985.]
VI. TRIAL
RULE 26.1 DETERMINATION OF FOREIGN LAW
A party who intends to raise an issue concerning the law of a
foreign country shall give reasonable written notice. The court,
in determining foreign law, may consider any relevant material or
source, including testimony, whether or not submitted by a party or
admissible under the West Virginia Rules of Evidence. The court's
determination shall be treated as a ruling on a question of law.
[Effective October 1, 1981; amended effective February 1, 1985.]
VI. TRIAL
RULE 26.2 PRODUCTION OF STATEMENTS OF WITNESSES
(a) Motion for Production. After a witness other than the
defendant has testified on direct examination, the court, on motion
of a party who did not call the witness, shall order the attorney
for the state or the defendant and the defendant's attorney, as the
case may be, to produce for the examination and use of the moving
party any statement of the witness that is in their possession and
that relates to the subject matter concerning which the witness has
testified.
(b) Production of Entire Statement. If the entire contents of
the statement relate to the subject matter concerning which the
witness has testified, the court shall order that the statement be
delivered to the moving party.
(c) Production of Excised Statement. If the other party
claims that the statement contains privileged information or matter that does not relate to the subject matter concerning which the
witness has testified, the court shall order that it be delivered
to the court in camera. Upon inspection, the court shall excise
the portions of the statement that are privileged or that do not
relate to the subject matter concerning which the witness has
testified, and shall order that the statement, with such material
excised, be delivered to the moving party. Any portion of the
statement that is withheld from the defendant over his or her
objection shall be preserved by the attorney for the state, and, if
the defendant appeals a conviction, must be made available to the
appellate court for the purpose of determining the correctness of
the decision to excise the portion of the statement.
(d) Recess for Examination of Statement. Upon delivery of the
statement to the moving party, the court, upon application of that
party, may recess the proceedings so that counsel may examine the
statement and prepare to use it in the proceedings.
(e) Sanction for Failure to Produce Statement. If the other
party elects not to comply with an order to deliver a statement to
the moving party, the court shall order that the testimony of the
witness be stricken from the record and that the trial proceed, or,
if it is the attorney for the state who elects not to comply, shall
declare a mistrial if required by the interest of justice.
(f) Definition. As used in this rule, a statement of a
witness means:
(1) A written statement made by the witness that is signed or otherwise adopted or approved by the witness;
(2) A substantially verbatim recital of an oral statement made
by the witness that is recorded contemporaneously with the making
of the oral statement and that is contained in a stenographic,
mechanical, electrical or other recording or a transcription
thereof or;
(3) A statement, however taken or recorded or a transcription
thereof, made by the witness to a grand jury.
(g) Scope of Rule. This rule applies at a suppression hearing
conducted under Rule 12, at trial under this rule, and to the
extent specified:
(1) in Rule 32(d) at sentencing;
(2) in Rule 32.1(c) at a hearing to revoke or modify probation
or supervised release; and
(3) in Rule 46(i) at a detention hearing.
[Effective October 1, 1981; amended effective September 1, 1995.]
VI. TRIAL
RULE 26.3 MISTRIAL
Before ordering a mistrial, the court shall provide an
opportunity for the state and for each defendant to comment on the
propriety of the order, including whether each party consents or
objects to a mistrial, and to suggest any alternatives.
[Adopted effective September 1, 1995.]
VI. TRIAL
RULE 27. PROOF OF OFFICIAL RECORD
An official record or an entry therein or the lack of such a
record or entry may be proved in the same manner as in civil
actions.
[Effective October 1, 1981.]
VI. TRIAL
RULE 28. EXPERT WITNESSES AND INTERPRETERS
(a) Expert Witnesses. The court may order the defendant or
the state or both to show cause why expert witnesses should not be
appointed, and may request the parties to submit nominations. The
court may appoint any expert witnesses agreed upon by the parties,
and may appoint witnesses of its own selection. An expert witness
shall not be appointed by the court unless the expert consents to
act. A witness so appointed shall be informed of his or her duties
by the court in writing, a copy of which shall be filed with the
clerk, or at a conference in which the parties shall have
opportunity to participate. A witness so appointed shall advise
the parties of his or her findings, if any, and may thereafter be
called to testify by the court or by any party. Such witness shall
be subject to cross-examination by each party. The court may
determine the reasonable compensation of such a witness and direct
its payment out of such funds as may be provided by law. The
parties also may call expert witnesses of their own selection.
(b) Interpreters. The court may order the defendant or the state to show cause for appointment of an interpreter. The court
may appoint an interpreter of its own selection and may fix the
reasonable compensation of such interpreter. Such compensation
shall be paid out of funds provided by law or by the state, as the
court may direct.
[Effective October 1, 1981; amended effective September 1, 1995.]
VI. TRIAL
RULE 29. MOTION FOR JUDGMENT OF ACQUITTAL
(a) Motion Before Submission to Jury. Motions for directed
verdict are abolished and motions for judgment of acquittal shall
be used in their place. The court on motion of a defendant or of
its own motion shall order the entry of judgment of acquittal of
one or more offenses charged in the indictment or information after
the evidence on either side is closed if the evidence is
insufficient to sustain a conviction of such offense or offenses.
If a defendant's motion for judgment of acquittal at the close of
the evidence offered by the state is not granted, the defendant may
offer evidence without having reserved the right.
(b) Reservation of Decision on Motion. The court may reserve
decision on a motion for judgment of acquittal, proceed with the
trial (where the motion is made before the close of all the
evidence), submit the case to the jury, and decide the motion
either before the jury returns a verdict or after it returns a
verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion
on the basis of the evidence at the time the ruling was reserved.
(c) Motion After Discharge of Jury. If the jury returns a
verdict of guilty or is discharged without having returned a
verdict, a motion for judgment of acquittal may be made or renewed
within ten days after the jury is discharged or within such further
time as the court may fix during the ten-day period. If a verdict
of guilty is returned the court may on such motion set aside the
verdict and enter judgment of acquittal. If no verdict is returned
the court may enter judgment of acquittal. It shall not be
necessary to the making of such a motion that a similar motion has
been made prior to the submission of the case to the jury.
[Effective October 1, 1981; amended effective September 1, 1995.]
VI. TRIAL
RULE 29.1 CLOSING ARGUMENT
After the closing of evidence and the instructions of the
court to the jury, the prosecution shall open the argument. The
defense shall be permitted to reply. The prosecution shall then be
permitted to reply in rebuttal.
[Effective October 1, 1981; amended effective September 1, 1995.]
VI. TRIAL
RULE 30. INSTRUCTIONS TO JURY; OBJECTIONS
At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file
written requests that the court instruct the jury on the law as set
forth in the requests. At the same time, copies of such requests
shall be furnished to all parties. The court shall inform counsel
of its proposed action upon the requests and disclose to counsel
all other instructions it intends to give before the arguments to
the jury are begun and the instructions given by the court. The
court may instruct the jury before or after the arguments are
completed or at both times. The instructions given by the court,
whether in the form of a connected charge or otherwise, shall be in
writing and shall not comment upon the evidence, except that
supplemental written instructions may be given later, after
opportunity to object thereto has been accorded to the parties.
The court may show the written instructions to the jury and permit
the jury to take the written instructions to the jury room. No
party may assign as error the giving or the refusal to give an
instruction or the giving of any portion of the charge unless that
party objects thereto before the arguments to the jury are begun,
stating distinctly the matter to which that party objects and the
grounds of the objection; but the court or any appellate court may,
in the interest of justice, notice plain error in the giving or
refusal to give an instruction, whether or not it has been made the
subject of objection. Opportunity shall be given to make objection
to the giving or refusal to give an instruction out of the presence
of the jury.
[Effective October 1, 1981; amended effective February 1, 1985;
September 1, 1995.]
VI. TRIAL
RULE 31. VERDICT
(a) Return. The verdict shall be unanimous. It shall be
returned by the jury to the judge in open court.
(b) Several Defendants and Offenses. If there is more than
one defendant or offense being tried, the jury at any time during
its deliberations may return a verdict or verdicts with respect to
a defendant or an offense as to which it has agreed; if the jury
cannot agree with respect to all, the defendant or offense as to
which it does not agree may be tried again. In all cases involving
multiple defendants or offenses, the court shall require the jury
to make a separate finding as to each defendant and offense.
(c) Conviction of Lesser Offense. The defendant may be found
guilty of an offense necessarily included in the offense charged or
of an attempt to commit either the offense charged or an offense
necessarily included therein if the attempt is an offense.
(d) Poll of Jury. When a verdict is returned and before it is
recorded the jury shall be polled at the request of any party or
upon the court's own motion. If upon the poll there is not
unanimous concurrence, the jury may be directed to retire for
further deliberations or may be discharged.
(e) Criminal Forfeiture. If the indictment or the information
alleges that an interest or property is subject to criminal forfeiture, a special verdict shall be returned as to the extent of
the interest or property subject to forfeiture, if any.
[Effective October 1, 1981; amended effective September 1, 1995.]
VII. JUDGMENT
RULE 32. SENTENCE AND JUDGMENT
(a) In General; Time for Sentencing. When a presentence
investigation and report are made under subdivision (b)(1),
sentence should be imposed without unnecessary delay following
completion of the process prescribed by subdivision (b)(6). When
a presentence investigation and report are not made, sentence shall
be imposed without unreasonable delay.
(b) Presentence Investigation and Report.
(1) When Made. The probation officer shall make a presentence
investigation and submit a report to the court before the sentence
is imposed, unless:
(A) the defendant waives a presentence investigation and
report;
(B) the court finds that the information in the record enables
it to meaningfully exercise its sentencing authority; and
(C) the court explains on the record its finding that the
information in the record enables it to meaningfully exercise its
sentencing authority.
(2) Presence of Counsel. Upon good cause shown, the court may
afford the defendant's counsel the right to notice and a reasonable opportunity to attend any interview of the defendant by a probation
officer during the course of the presentence investigation.
(3) Nondisclosure. The report must not be submitted to the
court or its contents disclosed to anyone unless the defendant has
consented in writing, has pleaded guilty or nolo contendere, or has
been found guilty.
(4) Contents of the Presentence Report. The presentence
report must contain
(A) information about the defendant's history and
characteristics, including information concerning the defendant's
court and criminal record, occupation, family background,
education, habits and associations, mental and physical condition,
the names, relationships, ages and condition of those dependent
upon the defendant for support and any circumstances that, because
they affect the defendant's behavior, may be helpful in imposing
sentence, determining the propriety and conditions of release on
probation, or determining correctional treatment;
(B) a victim impact statement, pursuant to Chapter 61, Article
11A, Section 3 of the West Virginia Code of 1931, as amended,
unless the court orders otherwise, if the defendant, in committing
a felony or misdemeanor, caused physical, psychological or economic
injury or death of the victim; and
(C) any other information required by the court.
(5) Exclusions. The presentence report must exclude:
(A) any diagnostic opinions that, if disclosed, might seriously disrupt a program of rehabilitation;
(B) sources of information obtained upon a promise of
confidentiality; or
(C) any other information that, if disclosed, might result in
harm, physical or otherwise, to the defendant or other persons.
(6) Disclosure and Objections.
(A) Within a period prior to the sentencing hearing, to be
prescribed by the court, the probation officer must furnish the
presentence report to the defendant, the defendant's counsel, and
the attorney for the state. The court may, by local rule or in
individual cases, direct that the probation office not disclose the
probation officer's recommendation, if any, on the sentence.
(B) Within a period prior to the sentencing hearing, to be
prescribed by the court, the parties shall file with the court any
objections to any material information contained in or omitted from
the presentence report.
(C) Except for any unresolved objection under subdivision
(b)(6)(B), the court may, at the hearing, accept the presentence
report as its findings of fact. For good cause shown, the court
may allow a new objection to be raised at any time before imposing
sentence.
(c) Sentence.
(1) Sentencing Hearing. At the sentencing hearing, the court
must afford counsel for the defendant and for the state an
opportunity to comment on the probation officer's determinations and other matters relating to the appropriate sentence, and must
rule on any unresolved objections to the presentence report. The
court may, in its discretion, permit the parties to introduce
testimony or other evidence on the objections. For each matter
controverted, the court must make either a finding on the
allegation or a determination that no finding is necessary because
the controverted matter will not be taken into account in, or will
not effect, sentencing. A written record of these findings and
determinations must be appended to any copy of the presentence
report made available to the Board of Parole.
(2) Production of Statements at Sentencing Hearing. Rule
26.2(a)-(d) and (f) applies at a sentencing hearing under this
rule. If a party elects not to comply with an order under Rule
26.2(a) to deliver a statement to the movant, the court may not
consider the affidavit or testimony of the witness whose statement
is withheld.
(3) Imposition of Sentence. Before imposing sentence, the
court must:
(A) verify that the defendant and defendant's counsel have
read and discussed the presentence report made available under
subdivision (b)(6)(A). If the court has received information
excluded from the presentence report under subdivision (b)(5) the
court in lieu of making that information available must summarize
it in writing, if the information will be relied on in determining
sentence. The court must also give the defendant and the defendant's counsel a reasonable opportunity to comment on that
information;
(B) afford defendant's counsel an opportunity to speak on
behalf of the defendant;
(C) address the defendant personally and determine whether the
defendant wishes to make a statement and to present any information
in mitigation of sentence;
(D) afford the attorney for the state an opportunity
equivalent to that of the defendant's counsel to speak to the
court; and
(E) if sentence is to be imposed for a crime of violence or
sexual abuse, address the victim personally if the victim is
present at the sentencing hearing and determine if the victim
wishes to make a statement or present any information in relation
to the sentence.
(4) In Camera Proceedings. The court's summary of information
under subdivision (c)(3)(A) may be in camera. Upon joint motion by
the defendant and by the attorney for the state, the court may hear
in camera the statements made under subdivision (c)(3)(B), (C),
(D), and (E) by the defendant, the defendant's counsel, the victim,
or the attorney for the state.
(5) Notification of Right to Appeal. After imposing sentence
in a case which has gone to trial on a plea of not guilty, the
court must advise the defendant of the right to appeal. After
imposing sentence in any case, the court must advise the defendant of any right to appeal the sentence, and of the right of a person
who is unable to pay the cost of an appeal to apply for leave to
appeal in forma pauperis. If the defendant so requests, the clerk
of the court shall prepare and file forthwith a notice of intent to
appeal on behalf of the defendant.
(d) Judgment.
(1) In General. A judgment of conviction must set forth the
plea, the verdict or findings, the adjudication, and the sentence.
If the defendant is found not guilty or for any other reason is
entitled to be discharged, judgment must be entered accordingly.
The judgment must be signed by the judge and entered by the clerk.
(2) Criminal Forfeiture. When a verdict contains a finding of
criminal forfeiture, the judgment must authorize the attorney for
the state to seize the interest or property subject to forfeiture
on terms that the court considers proper.
(e) Plea Withdrawal. If a motion for withdrawal of a plea of
guilty or nolo contendere is made before sentence is imposed, the
court may permit withdrawal of the plea if the defendant shows any
fair and just reason. At any later time, a plea may be set aside
only on direct appeal or by petition under W.Va.Code § 53-4A-1.
(f) Definitions. For purposes of this rule (1) "victim" means
any individual against whom an offense has been committed for which
a sentence is to be imposed, but the right of allocution under
subdivision (c)(3)(E) may be exercised instead by
(A) a parent or legal guardian if the victim is below the age of eighteen years or incompetent; or
(B) one or more family members or relatives designated by the
court if the victim is deceased or incapacitated; and
(2) "crime of violence or sexual abuse" means a crime that
involved the use or attempted or threatened use of physical force
against the person or property of another, or a crime under Chapter
61, Article 8B, Sections 7, 8, and 9; Chapter 61, Article 8,
Section 12; and Chapter 61, Article 8D, Section 5 of the West
Virginia Code of 1931, as amended.
(g) Probation. After conviction of an offense not punishable
by life imprisonment, the defendant may be placed on probation if
permitted by law.
(h) Revocation of Probation. The court shall not revoke
probation except after a hearing at which the defendant shall be
present and apprised of the grounds on which such action is
proposed. The defendant may be admitted to bail pending such
hearing.
[Effective October 1, 1981; amended effective February 1, 1985;
January 1, 1996.]
VII. JUDGMENT
RULE 32.1 REVOCATION OR MODIFICATION OF PROBATION
(a) Revocation of Probation or Alternative Sentencing.
(1) Preliminary Hearing. Whenever a person is held in custody
on the ground that he or she has violated a condition of probation,
the person shall be afforded a prompt hearing before any judge or magistrate who has been authorized by law to conduct preliminary
hearings, in order to determine whether there is probable cause to
hold the person for a revocation hearing. The person shall be
given:
(A) Notice of the preliminary hearing and its purpose and of
the alleged violation of probation;
(B) An opportunity to appear at the hearing and present
evidence in his or her own behalf;
(C) Upon request, the opportunity to question adverse
witnesses unless, for good cause, the judge or magistrate decides
that justice does not require the appearance of the witness; and
(D) Notice of his or her right to be represented by counsel.
The proceedings shall be recorded stenographically or by an
electronic recording device. If probable cause is found to exist,
the person shall be held for a revocation hearing. The person may
be released pursuant to Rule 46(c) pending the revocation hearing.
If probable cause is not found to exist, the proceedings shall be
dismissed.
(2) Revocation Hearing. The revocation hearing, unless waived
by the person, shall be held within a reasonable time and, unless
otherwise prescribed by this rule, pursuant to the procedure
prescribed in Chapter 62, Article 12, Section 10, of the West
Virginia Code of 1931, as amended. The person shall be given:
(A) Written notice of the alleged violation of probation;
(B) Disclosure of the evidence against him or her;
(C) An opportunity to appear and to present evidence in his or
her own behalf;
(D) The opportunity to question adverse witnesses; and
(E) Notice of his or her right to be represented by counsel,
and, in the event he or she is indigent, of his or her right to
appointed counsel.
(b) Modification of Probation. A hearing and assistance of
counsel are required before the terms or conditions of probation
can be modified, unless the relief granted to the probationer upon
his or her request or upon the court's own motion is favorable to
the probationer, and the attorney for the state, after having been
given notice of the proposed relief and a reasonable opportunity to
object, has not objected. An extension of the term of probation is
not favorable to the probationer for the purposes of this rule.
(c) Production of Statements.
(1) In General. Rule 26.2(a)-(d) and (f) applies at any
hearing under this rule.
(2) Sanctions for Failure to Produce Statement. If a party
elects not to comply with an order under Rule 26.2(a) to deliver a
statement to the moving party, the court may not consider the
testimony of a witness whose statement is withheld.
[Effective October 1, 1981; amended effective September 1, 1995.]
VII. JUDGMENT
RULE 33. NEW TRIAL
The court on motion of a defendant may grant a new trial to
that defendant if required in the interest of justice. If trial
was by the court without a jury the court on motion of a defendant
for a new trial may vacate the judgment if entered, take additional
testimony, and direct the entry of a new judgment. A motion for a
new trial based on the ground of newly discovered evidence may be
made only after final judgment, but if an appeal is pending the
court may grant the motion only on remand of the case. A motion
for a new trial based on any other grounds shall be made within ten
days after verdict or finding of guilty or within such further time
as the court may fix during the ten-day period.
[Effective October 1, 1981; amended effective September 1, 1995.]
VII. JUDGMENT
RULE 34. ARREST OF JUDGMENT
The court on motion of a defendant shall arrest judgment if
the indictment or information does not charge an offense or if the
court was without jurisdiction of the offense charged. The motion
in arrest of judgment shall be made within ten days after verdict
or finding of guilty, or after plea of guilty or nolo contendere,
or within such further time as the court may fix during the ten-day
period.
[Effective October 1, 1981.]
VII. JUDGMENT
RULE 35. CORRECTION OR REDUCTION OF SENTENCE
(a) Correction of Sentence. The court may correct an illegal
sentence at any time and may correct a sentence imposed in an
illegal manner within the time period provided herein for the
reduction of sentence.
(b) Reduction of Sentence. A motion to reduce a sentence may
be made, or the court may reduce a sentence without motion within
120 days after the sentence is imposed or probation is revoked, or
within 120 days after the entry of a mandate by the supreme court
of appeals upon affirmance of a judgment of a conviction or
probation revocation or the entry of an order by the supreme court
of appeals dismissing or rejecting a petition for appeal of a
judgment of a conviction or probation revocation. The court shall
determine the motion within a reasonable time. Changing a sentence
from a sentence of incarceration to a grant of probation shall
constitute a permissible reduction of sentence under this
subdivision.
[Effective October 1, 1981; amended effective February 1, 1985;
September 1, 1996.]
VII. JUDGMENT
RULE 36. CLERICAL MISTAKES
Clerical mistakes in judgments, orders or other parts of the
record and errors in the record arising from oversight or omission
may be corrected by the court at any time and after such notice, if
any, as the court orders.
[Effective October 1, 1981.]
VIII. APPEAL
RULE 37. TAKING APPEAL
(a) How an Appeal Is Taken.
(1) From a Circuit Court. An appeal permitted by law from a
circuit court to the Supreme Court of Appeals is taken by filing a
notice of intent to appeal in the circuit court within the time
provided by paragraph (b)(1) of this rule. The notice of intent to
appeal shall specify the parties or party taking the petition;
shall indicate the judgment, decree or order or part thereof
appealed from; shall name the court in which the petition is taken;
shall designate by itemization such pleadings, orders and exhibits
to enable the Supreme Court of Appeals to decide the matters
raised; and should concisely state the grounds for appeal. The
clerk shall serve notice of the filing of a notice of intent to
petition for appeal by personal service or by mailing a copy
thereof to all parties. The clerk shall note on each copy to be
served the date on which the notice of intent to appeal was filed,
and shall note in the docket the names of the parties on whom he or
she serves copies, with the date of mailing or other service.
Failure of the clerk to serve notice shall not affect the validity
of the appeal.
(2) From a Magistrate Court. An appeal permitted by law from
a magistrate court to a circuit court is taken by requesting an
appeal in the magistrate court within the time provided by Chapter 50, Article 5, Section 13, of the West Virginia Code of 1931, as
amended. The required specifications of the notice of intent to
appeal and the duties of the magistrate in forwarding the notice of
intent to appeal to the clerk of the circuit court and serving
notice on the parties do not apply as provided for in paragraph
(a)(1) of this rule.
(b) Time for Taking Appeal.
(1) Time for Notice of Intent to Appeal. The notice of intent
to appeal by a defendant shall be filed within 30 days after the
entry of the judgment, decree or other order appealed from. A
notice of intent to appeal filed after the announcement of a
decision, sentence or order but before entry of the judgment or
order shall be treated as filed after such entry and on the day
thereof. A judgment or order is entered within the meaning of this
paragraph when it is entered in the criminal docket.
(2) Procedure for Requesting, Preparing, and Filing of
Transcript. The procedure for requesting, preparing, and filing of
transcripts shall be governed by Appendix B to the Rules of
Appellate Procedure.
(3) Time for Petition for Appeal. A petition must be filed
with the clerk of the circuit court where the judgment, decree or
order being appealed was entered within four months of the entry of
the circuit court order. The appeal period may be extended, upon
request of the appealing party, within four months of the order
appealed from for the purpose of preparing a transcript or for good cause, for a period or periods not to exceed a total of two months.
When an appeal by the state is authorized by statute, the petition
for appeal shall be filed with the clerk of the circuit court
within 30 days after entry of judgment or order appealed from.
[Effective October 1, 1981; amended effective July 1, 1990;
September 1, 1995; January 1, 1996.]
VIII. APPEAL
RULE 38. STAY OF EXECUTION AND RELIEF PENDING REVIEW
(a) Reserved.
(b) Imprisonment. A sentence of imprisonment shall be stayed,
pursuant to Chapter 62, Article 7, Section 1, of the West Virginia
Code of 1931, as amended, upon request of the defendant if an
appeal is taken from the conviction. If stayed, but the defendant
is not released pending disposition of appeal, the court shall
order that the defendant be retained at a place of confinement near
the place of trial for a period reasonably necessary to permit the
defendant to assist in the preparation of an appeal to the Supreme
Court of Appeals.
(c) Fine. Upon the request of the defendant, a sentence to
pay a fine or a fine and costs, if an appeal is taken, shall be
stayed upon such terms as the court deems proper. The court may
require the defendant pending appeal to deposit the whole or any
part of the fine and costs to the clerk of the circuit court, or to
give bond for the payment thereof, or to submit to an examination of assets, and it may make any appropriate order to restrain the
defendant from dissipating his or her assets.
(d) Probation. An order placing the defendant on probation
may be stayed if an appeal from the conviction or sentence is
taken. If not stayed, the court shall specify when the term of
probation shall commence. If the order is stayed, the court shall
fix the terms of the stay.
[Effective October 1, 1981; amended effective September 1, 1995.]
VIII. APPEAL
RULE 39. [RESERVED]
IX. SUPPLEMENTARY AND SPECIAL PROCEEDINGS
RULE 40. OFFENSE ARISING IN ANOTHER COUNTY
(a) Appearance Before Magistrate. If a person is arrested on
a warrant issued upon a complaint, information or indictment, or
without a warrant for an offense alleged to have been committed in
a county other than the county of arrest, all papers in the
proceeding shall be promptly transmitted to a magistrate or circuit
court of the county having jurisdiction of the offense for
preliminary examination or trial. If the defendant is unable to
provide bail in the county of arrest, he or she shall be committed
to the custody of an officer who shall take the defendant without
unnecessary delay before a magistrate or judge of a circuit court
wherein the examination or trial is to be held, there to be dealt
with as provided by these rules.
(b) Arrest of Probationer. If a person is arrested for a
violation of probation in a county other than the county of
supervision, such person shall be taken without unnecessary delay
before the nearest available magistrate and then processed in
accordance with the provisions of subdivision (a) of this rule upon
the production of certified copies of the probation order, the
warrant, the application for the warrant and upon a finding that
the person before the magistrate is the person named in the
warrant.
(c) Arrest for Failure to Appear. If a person is arrested on
a warrant in a county other than that in which the warrant was
issued, and the warrant was issued because of the failure of the
person named therein to appear as required pursuant to subpoena or
the terms of that person's release, the person arrested shall be
taken without unnecessary delay before the nearest available
magistrate. Upon production of the warrant or a certified copy
thereof and upon a finding that the person before the magistrate is
the person named in the warrant, the magistrate shall hold the
person to answer in the county in which the warrant was issued.
(d) Bail. If bail was previously fixed in another county
where a warrant, information or indictment issued, the magistrate
shall take into account the amount of bail previously fixed and the
reasons set forth therefor, if any, but will not be bound by the
amount of bail previously fixed. If the magistrate fixes bail
different from that previously fixed, he or she shall set forth the reasons for such action in writing.
[Effective October 1, 1981; amended effective September 1, 1995.]
IX. SUPPLEMENTARY AND SPECIAL PROCEEDINGS
RULE 41. SEARCH AND SEIZURE
(a) Authority to Issue Warrant. Upon the request of a law
enforcement officer or an attorney for the state, a search warrant
authorized by this rule may be issued by a magistrate or a judge of
a circuit court within the county wherein the property or person
sought is located.
(b) Property Which May Be Seized With a Warrant. A warrant
may be issued under this rule to search for and seize any:
(1) Property that constitutes evidence of the commission of a
criminal offense; or
(2) Contraband, the fruits of crime, or things otherwise
criminally possessed; or
(3) Property designed or intended for use or which is or has
been used as the means of committing a criminal offense; or
(4) Person for whose arrest there is probable cause, or who is
unlawfully restrained.
(c) Issuance and Contents. A warrant shall issue only on an
affidavit or affidavits sworn to before the magistrate or a judge
of the circuit court and establishing the grounds for issuing the
warrant. If the magistrate or circuit judge is satisfied that
grounds for the application exist, or that there is probable cause to believe that they exist, that magistrate or circuit judge shall
issue a warrant identifying the property or person to be seized and
naming or describing the person or place to be searched. The
finding of probable cause may be based upon hearsay evidence in
whole or in part. Before ruling on a request for a warrant the
magistrate or circuit judge may require the affiant to appear
personally and may examine under oath the affiant and any witnesses
the affiant may produce, provided that such proceeding shall be
taken down by a court reporter or recording equipment and made part
of the affidavit. The warrant shall be directed to the sheriff or
any deputy sheriff of the county, to any member of the department
of public safety, or to any police officer of the municipality
wherein the property is located, or to any other officer authorized
by law to execute such search warrants. It shall command the
officer to search, within a specified period of time not to exceed
10 days, the person or place named for the property specified. The
warrant may be executed either in the day or night. It shall
designate a magistrate to whom it shall be returned.
(d) Execution and Return With Inventory. The officer taking
property under the warrant shall give to the person from whom or
from whose premises the property was taken a copy of the warrant
and a receipt for the property taken or shall leave the copy and
receipt at the place from which the property was taken. The return
shall be made promptly and shall be accompanied by a written
inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from
whose possession or premises the property was taken, if they are
present, or in the presence of at least one credible person other
than the applicant for the warrant or the person from whose
possession or premises the property was taken, and shall be
verified by the officer. The magistrate shall upon request deliver
a copy of the inventory to the person from whom or from whose
premises the property was taken and to the applicant for the
warrant.
(e) Motion for Return of Property. A person aggrieved by an
unlawful search and seizure may move the circuit court for the
county in which the property was seized for the return of the
property on the ground that he or she is entitled to lawful
possession of the property. The judge shall receive evidence on
any issue of fact necessary to the decision of the motion. If the
motion is granted, the property shall be returned to the movant,
although reasonable conditions may be imposed to protect access and
use of the property in subsequent proceedings. If a motion for
return of property is made or comes on for hearing in the circuit
court of trial after an indictment or information is filed, it
shall be treated also as a motion to suppress under Rule 12.
(f) Motion to Suppress. A motion to suppress evidence may be
made in the court of the county of trial as provided in Rule 12.
(g) Return of Papers to Clerk. The magistrate before whom the
warrant is returned shall attach to the warrant a copy of the return, inventory, and all other papers in connection therewith and
shall file them with the clerk of the magistrate court for the
county in which the property was seized.
(h) Scope and Definition. This rule does not modify any act,
inconsistent with it, regulating search, seizure and the issuance
and execution of search warrant in circumstances for which special
provision is made. The term property is used in this rule to
include documents, books, papers and any other tangible objects.
The phrase law enforcement officer is used in this rule to mean any
state agent, other than an attorney for the state as defined in
Rule 54(c), who is engaged in the enforcement of the criminal laws
and is within any category of officers authorized by law to request
the issuance of a search warrant.
[Effective October 1, 1981; amended effective July 1, 1990;
September 1, 1995.]
IX. SUPPLEMENTARY AND SPECIAL PROCEEDINGS
RULE 42. CRIMINAL CONTEMPT
(a) Summary Disposition. A criminal contempt may be punished
summarily if the judge certifies that the judge saw or heard the
conduct constituting the contempt and that it was committed in the
actual presence of the court. The order of contempt shall recite
the facts and shall be signed by the judge and entered of record.
(b) Disposition Upon Notice and Hearing. A criminal contempt,
except, as provided in subdivision (a) of this rule, shall be prosecuted on notice. The notice shall state the time and place of
hearing, allowing a reasonable time for the preparation of the
defense, and shall state the essential facts constituting the
criminal contempt charged and describe it as such. The notice
shall be given orally by the judge in open court in the presence of
the defendant or, on application of the prosecuting attorney or of
an attorney appointed by the court for that purpose, by an order to
show cause or an order of arrest. The defendant is entitled to a
trial by jury in any case in which the laws of this state so
provide. The defendant is entitled to admission to bail as provided
in these rules. If the contempt charged involves disrespect to or
criticism of a judge, that judge is disqualified from presiding at
the trial or hearing except with the defendant's consent. Upon a
verdict or finding of guilt, the court shall enter an order fixing
the punishment.
[Effective October 1, 1981; amended effective September 1, 1995.]
X. GENERAL PROVISIONS
RULE 43. PRESENCE OF THE DEFENDANT
(a) Presence Required. The defendant shall be present at the
arraignment, at the time of the plea, at every stage of the trial
including the impaneling of the jury and the return of the verdict,
and at the imposition of sentence, except as otherwise provided by
this rule.
(b) Continued Presence Not Required. The further progress of the trial to and including the return of the verdict shall not be
prevented and the defendant shall be considered to have waived the
right to be present whenever a defendant, initially present:
(1) Is voluntarily absent after the trial has commenced
(whether or not the defendant has been informed by the court of the
obligation to remain during the trial); or
(2) After being warned by the court that disruptive conduct
will cause his or her removal from the courtroom, persists in
conduct which is such as to justify exclusion from the courtroom.
(c) Presence Not Required. A defendant need not be present in
the following situations:
(1) A corporation may appear by counsel for all purposes.
(2) In prosecutions for offenses punishable by fine or by
imprisonment for not more than one year or both, the court, with
the written consent of the defendant, may permit arraignment, plea,
trial and imposition of sentence in the defendant's absence.
(3) At a conference or argument upon a technical question of
law not depending upon facts within the personal knowledge of the
defendant.
(4) At a reduction of sentence under Rule 35.
[Effective October 1, 1981; amended effective September 1, 1995.]
X. GENERAL PROVISIONS
RULE 44. RIGHT TO AND ASSIGNMENT OF COUNSEL
(a) Right to Assigned Counsel. Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned to
represent him or her at every stage of the proceedings from initial
appearance before the magistrate or the court through appeal,
unless the defendant waives such appointment.
(b) Assignment Procedure. The procedures for implementing the
rights set out in subdivision (a) shall be those provided by
Chapter 51, Article 11, Section 1, et seq., of the West Virginia
Code of 1931, as amended, and by local rules of court established
pursuant thereto.
(c) Joint Representation. Whenever two or more defendants
have been jointly charged pursuant to Rule 8(b) or have been joined
for trial pursuant to Rule 13, and are represented by the same
retained or assigned counsel or by retained or assigned counsel who
are associated in the practice of law, the court shall promptly
inquire with respect to such joint representation and shall
personally advise each defendant of the right to effective
assistance of counsel, including separate representation. Unless
it appears that there is good cause to believe no conflict of
interest is likely to arise, the court shall take such measures as
may be appropriate to protect each defendant's right to counsel.
[Effective October 1, 1981; amended effective September 1, 1995.]
X. GENERAL PROVISIONS
RULE 45. TIME
(a) Computation. In computing any period of time, the day of the act or event from which the designated period of time begins to
run shall not be included. The last day of the period so computed
shall be included, unless it is a Saturday, a Sunday, or a legal
holiday, or when the act to be done is the filing of some paper in
court, a day on which weather or other conditions have made the
office of the clerk of the court inaccessible, in which event the
period runs until the end of the next day which is not one of the
aforementioned days. When a period of time prescribed or allowed
is less than seven days, intermediate Saturdays, Sundays and legal
holidays shall be excluded in the computation. As used in these
rules, legal holiday includes New Year's Day, Martin Luther King,
Jr.'s Birthday, Washington's Birthday, Memorial Day, Independence
Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day,
Christmas Day and any other day appointed as a holiday by the
governor or the legislature of West Virginia and all holidays as
set forth in Chapter 2, Article 2, Section 1, of the West Virginia
Code of 1931, as amended.
(b) Enlargement. When an act is required or allowed to be
done at or within a specified time, the court for cause shown may
at any time in its discretion:
(1) With or without motion or notice, order the period
enlarged if request therefor is made before the expiration of the
period originally prescribed or as extended by a previous order; or
(2) Upon motion made after the expiration of the specified
period, permit the act to be done if the failure to act was the result of excusable neglect; but the court may not extend the time
for taking any action under Rules 29, 33, 34 and 35, except to the
extent and under the conditions stated in them.
(c) Unaffected by Expiration of Term. The period of time
provided for the doing of any act or the taking of any proceeding
is not affected or limited by the expiration of a term of court.
The expiration of a term of court in no way affects the power of a
court to do any act in a criminal proceeding.
(d) For Motions; Affidavits. A written motion, other than one
which may be heard ex parte, and notice of the hearing thereof
shall be served not later than five days before the time specified
for the hearing unless a different period is fixed by rule or order
of the court. For cause shown such an order may be made on ex
parte application. When a motion is supported by affidavit, the
affidavit shall be served with the motion; and opposing affidavits
may be served not less than one day before the hearing unless the
court permits them to be served at a later time.
(e) Additional Time After Service by Mail. Whenever a party
has the right or is required to do an act within a prescribed
period after the service of a notice or other paper upon that party
and the notice or other paper is served by mail, three days shall
be added to the prescribed period.
[Effective October 1, 1981; amended effective September 1, 1995.]
X. GENERAL PROVISIONS
RULE 46. RELEASE FROM CUSTODY
(a) Release Prior to Trial. Eligibility for release prior to
trial shall be in accordance with Chapter 62, Article 1C, Section
1 of the West Virginia Code of 1931, as amended.
(b) Release During Trial. A person released before trial
shall continue on release during trial under the same terms and
conditions as were previously imposed unless the court determines
that other terms and conditions or termination of release is
necessary to assure such person's presence during the trial or to
assure that his or her conduct will not obstruct the orderly and
expeditious progress of the trial.
(c) Pending Sentence and Notice of Appeal. Eligibility for
release pending sentence or pending notice of intent to appeal or
expiration of the time allowed for filing notice of appeal shall be
in accordance with Chapter 62, Article 1C, Section 1(b), of the
West Virginia Code of 1931, as amended. The burden of establishing
that the defendant will not flee or pose a danger to any other
person or to the community rests with the defendant. The burden of
establishing eligibility for bail under this subsection rests with
the defendant.
(d) Justification of Sureties. Every surety, except a surety
which is approved as provided by law, shall justify by affidavit
and may be required to describe in the affidavit the property by
which the surety proposes to justify and the encumbrances thereon,
the number and amount of other bonds and undertakings for bail entered into by the surety, and remaining undischarged, and all the
other liabilities of the surety. No bond shall be approved unless
the surety thereon appears to be qualified. Any surety or bond
required by this rule may be approved by any magistrate or circuit
judge permitted to accept the same.
(e) Forfeiture.
(1) Declaration. If there is a breach of condition of a bond,
the circuit court shall declare a forfeiture of the bail.
(2) Setting Aside. The court may direct that a forfeiture be
set aside, upon such conditions as the court may impose, if it
appears that justice does not require the enforcement of the
forfeiture.
(3) Enforcement. When a forfeiture has not been set aside,
the circuit court shall on motion enter a judgment of default, and
execution may issue thereon. By entering into a bond the obligors
submit to the jurisdiction and venue of the circuit court and
irrevocably appoint the clerk of the court as their agent upon whom
any papers affecting their liability may be served. Their
liability may be enforced on motion without the necessity of an
independent action. The motion and notice of the motion, and the
hearing thereon, shall comply with Chapter 62, Article 1C, Section
9 of the West Virginia Code of 1931, as amended.
(4) Remission. After entry of such judgment, the court may
remit it in whole or in part under the conditions applying to the
setting aside of forfeiture in paragraph (2) of this subdivision.
(f) Exoneration. When the condition of the bond has been
satisfied or the forfeiture thereof has been set aside or remitted,
the court shall exonerate the obligors and release any bail, and if
the bail be in a form other than a recognizance, the deposit shall
be returned to the person who made the same. A surety may be
exonerated by a deposit of cash in the amount of the bond or by a
timely surrender of the defendant into custody.
(g) Supervision of Detention Pending Trial. The court shall
exercise supervision over the detention of defendants and witnesses
within the county pending trial for the purpose of eliminating all
unnecessary detention. The attorney for the state shall make a
biweekly report to the court listing each defendant and witness who
has been held in custody pending indictment, arraignment or trial
for a period in excess of 10 days. As to each witness so listed,
the attorney for the state shall make a statement of the reasons
why such witness should not be released with or without the taking
of a deposition pursuant to Rule 15(a). As to each defendant so
listed, the attorney for the state shall make a statement of the
reasons why the defendant is still held in custody.
(h) Bail Determination Hearings. Upon motion of the defendant
for release pursuant to subdivisions (a), (b) or (c) of this rule,
the court or magistrate exercising jurisdiction over the case shall
immediately order a hearing to determine the defendant's
eligibility for bail or release or to determine the amount of bail.
(1) Time of Hearing. The hearing shall be held within a reasonable time not later than five days after the filing of the
motion, but:
(A) With the consent of the defendant and upon a showing of
cause, the hearing may be continued one or more times; and
(B) In the absence of the defendant, the hearing may be
continued only upon a showing that extraordinary circumstances
exist and that the delay is indispensable to the interests of
justice.
(2) Procedures. The magistrate or circuit court shall issue
process necessary to summon witnesses within the state for either
the attorney for the state or the defendant. Both the attorney for
the state and the defendant may offer evidence in their behalf.
Each witness, including a defendant testifying in his or her own
behalf, shall testify under oath or affirmation and may be
cross-examined. The magistrate or circuit court may make any order
with respect to the conduct of the hearing that such magistrate or
judge could make at the trial of a criminal case.
(3) Testimony of Defendant. A defendant who testifies at the
hearing may nonetheless decline to testify at trial, in which case
his or her testimony at the hearing is not admissible in evidence.
If the defendant testifies at trial, his or her testimony at the
hearing is admissible in evidence to the extent permitted by law.
(4) Evidence. Objections to evidence on the ground that it
was acquired by unlawful means are not properly made by any hearing
under this subsection. Hearsay evidence may be received, if there is a substantial basis for believing:
(A) That the source of hearsay is credible;
(B) That there is a factual basis for the information
furnished; and
(C) That it would impose an unreasonable burden on one of the
parties or on a witness to require that the primary source of the
evidence be produced at the hearing.
(5) Finding and Disposition. The magistrate or circuit court
shall expeditiously upon receipt of all the evidence make a ruling
on defendant's motion and shall, in addition, find the facts
specially and state separately its conclusions of law thereon. The
findings shall be in writing. If an opinion or memorandum of
decision is filed, it will be sufficient if the findings of fact
and conclusions of law appear therein.
(i) Production of Statements.
(1) In General. Rule 26.2(a)-(d) and (f) applies at a
detention hearing, unless the court, for good cause shown, rules
otherwise in a particular case.
(2) Sanctions for Failure to Produce Statement. If a party
elects not to comply with an order under Rule 26.2(a) to deliver a
statement to the moving party, at the detention hearing the court
may not consider the testimony of a witness whose statement is
withheld.
[Effective October 1, 1981; amended effective February 1, 1985;
September 1, 1995.]
X. GENERAL PROVISIONS
RULE 47. MOTIONS
An application to the court for an order shall be by motion.
A motion other than one made during a trial or hearing shall be in
writing unless the court permits it to be made orally. It shall
state the grounds upon which it is made and shall set forth the
relief or order sought. It may be supported by affidavit.
[Effective October 1, 1981.]
X. GENERAL PROVISIONS
RULE 48. DISMISSAL
(a) By Attorney for State. The attorney for the state may by
leave of court file a dismissal of an indictment, information or
complaint, and the prosecution shall thereupon terminate. Such a
dismissal may not be filed during the trial without the consent of
the defendant.
(b) By Court. If there is unnecessary delay of more than one
year in presenting the charge to a grand jury or in filing an
information against a defendant who has been held to answer to the
circuit court, the court shall, on its own motion, dismiss the
indictment, information or complaint, without prejudice. If there
is unnecessary delay in bringing a defendant to trial, the court
may, upon proper motion, dismiss the indictment, information or
complaint.
[Effective October 1, 1981; amended effective January 1, 1993;
September 1, 1995.]
X. GENERAL PROVISIONS
RULE 49. SERVICE AND FILING OF PAPERS
(a) Service: When Required. Written motions other than those
which are heard ex parte, written notices, designations of record
on appeal, and similar papers shall be served upon each of the
parties.
(b) Service: How Made. Whenever under these rules or by an
order of the court service is required or permitted to be made upon
a party represented by an attorney, the service shall be made upon
the attorney unless service upon the party personally is ordered by
the court. Service upon the attorney or upon a party shall be made
in the manner provided in civil actions.
(c) Notice of Orders. Immediately upon the entry of an order
made on a written motion subsequent to arraignment, the clerk shall
mail to each party a notice thereof and shall make a note in the
docket of the mailing. Lack of notice of the entry by the clerk
does not affect the time to appeal or relieve or authorize the
court to relieve a party for failure to appeal within the time
allowed.
(d) Filing. Papers required to be served shall be filed with
the court. Papers shall be filed in the manner provided in civil
actions.
[Effective October 1, 1981; amended effective September 1, 1995.]
X. GENERAL PROVISIONS
RULE 50. CALENDARS
The circuit courts may provide for placing criminal
proceedings upon appropriate calendars. Preference shall be given
to criminal proceedings as far as practicable.
[Effective October 1, 1981.]
X. GENERAL PROVISIONS
RULE 51. EXCEPTIONS UNNECESSARY
Exceptions to rulings or orders of the court are unnecessary
and for all purposes for which an exception has heretofore been
necessary it is sufficient that a party, at the time the ruling or
order of the court is made or sought, makes known to the court the
action which that party desires the court to take or his or her
objection to the action of the court and the grounds therefor; but
if a party has no opportunity to object to a ruling or order, the
absence of an objection does not thereafter prejudice that party.
[Effective October 1, 1981; amended effective September 1, 1995.]
X. GENERAL PROVISIONS
RULE 52. HARMLESS ERROR AND PLAIN ERROR
(a) Harmless Error. Any error, defect, irregularity, or
variance which does not affect substantial rights shall be
disregarded.
(b) Plain Error. Plain errors or defects affecting
substantial rights may be noticed although they were not brought to
the attention of the court.
[Effective October 1, 1981.]
X. GENERAL PROVISIONS
RULE 53. REGULATION OF CONDUCT IN THE COURTROOM
Except as permitted by the guidelines established by the
Supreme Court of Appeals of West Virginia, the taking of
photographs in the courtroom during the progress of judicial
proceedings or radio broadcasting of judicial proceedings from the
courtroom shall not be permitted by the court.
[Effective October 1, 1981.]
X. GENERAL PROVISIONS
RULE 54. APPLICATION AND EXCEPTION
(a) Courts. These rules apply to all criminal proceedings in
the circuit courts of West Virginia and to the extent specified in
the rules to magistrate courts.
(b) Proceedings.
(1) Peace Bonds. These rules do not alter the power of judges
of the circuit court or of magistrates to hold to security of the
peace and for good behavior under Chapter 62, Article 6, Section 1,
et seq., and Chapter 62, Article 10, Section 1, et seq. of the West
Virginia Code of 1931, as amended, but in such cases the procedure shall conform to these rules so far as they are applicable and not
inconsistent with the above statutory provisions.
(2) Proceedings Before Magistrates. Proceedings involving
misdemeanor offenses before magistrates as specified in Chapter 50,
Article 2, Section 3, of the West Virginia Code of 1931, as
amended, are governed by Chapter 62, Article 1, Section 5, of the
West Virginia Code of 1931, as amended.
(3) Other Proceedings. These rules are not applicable to
extradition and rendition of fugitives. Except as expressly
provided within these rules they do not apply to proceedings under
Chapter 49, Article 5, Section 1, et seq. of the West Virginia Code
of 1931, as amended, juvenile delinquency so far as they are
inconsistent with that statute.
(c) Application of Terms. As used in these rules, the
following terms have the designated meanings:
(1) State statute includes any act of the West Virginia
legislature.
(2) Attorney for the state means, where appropriate, the
Attorney General, an authorized assistant of the Attorney General,
a prosecuting attorney and an authorized assistant of a prosecuting
attorney.
(3) Civil action refers to a civil action in a circuit court.
(4) The words demurrer, motion to quash, plea in abatement,
plea in bar, and special plea in bar, or words to the same effect,
in any state statute shall be construed to mean the motion raising a defense or objection provided in Rule 12.
(5) Circuit Court includes all courts in this state having
jurisdiction pursuant to Article 8, Section 6 of the Constitution
of West Virginia.
(6) Law includes the constitution of this state, the common
law, statutes and the judicial decisions construing them.
(7) Misdemeanor offense is defined in Chapter 61, Article 11,
Section 1 of the West Virginia Code of 1931, as amended.
(8) Oath includes affirmation.
(9) State means the State of West Virginia.
[Effective October 1, 1981; amended effective September 1, 1995.]
X. GENERAL PROVISIONS
RULE 55. RECORDS
The clerk of the circuit court and the clerk of the magistrate
court shall keep records in criminal proceedings in such form as
the Supreme Court of Appeals may prescribe. The clerk shall enter
in the records each order or judgment of the court and the date
such entry is made.
[Effective October 1, 1981; amended effective February 1, 1985;
September 1, 1995.]
X. GENERAL PROVISIONS
RULE 56. COURTS AND CLERKS
The circuit court shall be deemed always open for the purpose of filing any proper paper, of issuing and returning process, and
of making motions and orders. The clerk's office with the clerk or
a deputy in attendance shall be open during business hours on all
days except Saturdays, Sundays, and legal holidays, but a court may
provide by local rule or order that its clerk's office shall be
open for specified hours on Saturdays or particular legal holidays
other than New Year's Day, Washington's Birthday, Memorial Day,
Independence Day, Labor Day, Veterans Day, Thanksgiving Day, and
Christmas Day.
[Effective October 1, 1981.]
X. GENERAL PROVISIONS
RULE 57. RULES OF COURT
(a) Rules by Circuit Court. Local rules may be made by
circuit courts for the conduct of criminal proceedings, but they
shall be consistent with these rules. Such rules and any
amendments thereof shall be effective only after they are filed and
approved by the Supreme Court of Appeals, which may order printing
of such rules. When approved by the Supreme Court of Appeals, such
rules shall be recorded in the criminal order book of the local
court and copies shall be made available to the public.
(b) Procedure Not Otherwise Specified. If no procedure is
specifically prescribed by rule, the court may proceed in any
lawful manner not inconsistent with these rules or with any
applicable statute.
[Effective October 1, 1981; amended effective September 1, 1995.]
X. GENERAL PROVISIONS
RULE 58. FORMS [ABROGATED]
[Abrogated effective February 1, 1985.]
X. GENERAL PROVISIONS
RULE 59. EFFECTIVE DATE
These rules shall take effect on October 1, 1981. They govern
all proceedings in actions brought after they take effect and also
further proceedings in actions then pending, except to the extent
that in the opinion of the circuit court their application in a
particular action pending when the rules take effect would not be
feasible or would work injustice, in which event the former
procedure applies.
[Effective October 1, 1981.]
X. GENERAL PROVISIONS
RULE 60. TITLE
These rules may be known and cited as the West Virginia Rules
of Criminal Procedure and may be cited as WV Rules of Criminal
Procedure.
[Effective October 1, 1981; amended effective September 1, 1995.]