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The West Virginia Rules of Evidence

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The West Virginia Rules of Evidence Revisions to the West Virginia Rules of Evidence Final Version The revisions are effective September 2, 2014. Approved by Order: June 2, 2014 Corrected by Orders: June 25, 2014 and August 28, 2014 The Court’s order and a PDF version of the proposed revisions are available online at: http://www.courtswv.gov/legal-community/court-rules.html West Virginia Rules of Evidence (Revised effective September 2, 2014) Table of Contents Article I. General Provisions Rule 611. Mode and Order of Examining Witnesses and Rule 101. Scope; Definitions 1 Presenting Evidence 20 Rule 102. Purpose 2 Rule 612. Writing Used to Refresh a Witness’s Rule 103. Rulings on Evidence 2 Memory 21 Rule 104. Preliminary Questions 3 Rule 613. Witness’s Prior Statement 22 Rule 105. Limiting Evidence That is not Admissible Rule 614. Court’s Calling or Examining a Witness 22 Against Other Parties or for Other Purposes 3 Rule 615. Excluding Witnesses 22 Rule 106. Remainder of or Related Writings or Recorded Statements 4 Article Vii. Opinion and Expert Testimony Article II. Judicial Notice Rule 701. Opinion Testimony by Lay Witnesses 23 Rule 201. Judicial Notice of Adjudicative Facts 4 Rule 702. Testimony by Expert Witnesses 23 Rule 202. Judicial Notice of Law 5 Rule 703. Bases of an Expert’s Opinion Testimony 24 Rule 704. Opinion on Ultimate Issue 24 Article III. Presumptions Rule 705. Disclosing the Facts or Data Underlying an Rule 301. Presumptions in Civil Cases Generally 5 Expert’s Opinion 24 Rule 706. Court Appointed Expert Witnesses 25 Article IV. Relevancy and its Limits Rule 401. Test for Relevant Evidence 6 Article VIII. Hearsay Rule 402. General Admissibility of Relevant Evidence 6 Rule 801. Definitions That Apply to This Article; Rule 403. Excluding Relevant Evidence for Prejudice, Exclusions from Hearsay 25 Confusion, Waste of Time, or Other Rule 802. The Rule Against Hearsay 26 Reasons 6 Rule 803. Exceptions to the Rule Against Hearsay 27 Rule 404. Character Evidence; Crimes or Other Acts 7 Rule 804. Hearsay Exceptions; Declarant Rule 405. Methods of Proving Character 8 Unavailable 30 Rule 406. Habit; Routine Practice 8 Rule 805. Hearsay Within Hearsay 32 Rule 407. Subsequent Remedial Measures 8 Rule 806. Attacking and Supporting the Declarant’s Rule 408. Compromise Offers and Negotiations 9 Credibility 32 Rule 409. Offers to Pay Medical and Similar Expenses 9 Rule 807. Residual Exception 33 Rule 410. Pleas, Plea Discussions, and Related Statements 10 Article IX. Authentication and Rule 411. Liability Insurance 10 Identification Rule 412. Sex-Offense Cases; the Victim’s Sexual Behavior or Predisposition 11 Rule 901. Authenticating or Identifying Evidence 33 Rule 902. Self-Authentication 35 Article V. Privileges Rule 903. Subscribing Witness’s Testimony 36 Rule 501. Privilege in General 14 Rule 502. Attorney-Client Privilege and Work Product; Article X. Contents of Writings; Limitations on Waiver 14 Recordings & Photographs Rule 1001. Definitions That Apply to This Article 37 Article VI. Witnesses Rule 1002. Requirement of the Original 37 Rule 601. Competency to Testify in General 15 Rule 1003.Admissibility of Duplicates 37 Rule 602. Need for Personal Knowledge 16 Rule 1004. Admissibility of Other Evidence of Rule 603. Oath or Affirmation to Testify Truthfully 16 Content 38 Rule 604. Interpreter 16 Rule 1005. Copies of Public Records to Prove Content 38 Rule 605. Judge’s Competency as a Witness 16 Rule 1006. Summaries to Prove Content 38 Rule 606. Juror’s Competency as a Witness 17 Rule 1007. Testimony or Statement of a Party to Prove Rule 607. Who May Impeach a Witness 17 Content 39 Rule 608. A Witness’s Character for Truthfulness or Rule 1008. Functions of Court and Jury 39 Untruthfulness 18 Rule 609. Impeachment by Evidence of a Criminal Article XI. Miscellaneous Conviction 18 Rule 1101. Applicability 40 Rule 610. Religious Beliefs or Opinions 20 Rule 1102. Title 40 STATE OF WEST VIRGINIA At a Regular Term of the Supreme Court of Appeals, continued and held at Charleston, Kanawha County, on June 25, 2014, the following order was made and entered: Re: Notice of Correction to Rule 608(a) of the West Virginia Rules of Evidence By order issued June 2, 2014, the Court approved revisions to the West Virginia Rules of Evidence, to become effective September 2, 2014. Due to an error derived from the 2014 Michie’s West Virginia Code Annotated, Federal Court Rules Volume (at p. 718), the text of Rule 608(a) and the comment to Rule 608 have been corrected as noted in this Order. Originally Published Rule (a) Reputation or Opinion Evidence. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Corrected Rule (a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. Corrected Comment (deletions shown in strikethrough) Rule 608 was taken verbatim from the federal counterpart with only one substantive change: the use of the phrase “other than the accused” in Rule 608(b), which is contained in the existing state rule. The term credibility in 608(b) has been replaced by the term “character for truthfulness” in the last sentence of subdivision (b). However, the term “credibility” is also used in subdivision (a). It is unnecessary to substitute “character for truthfulness” for “credibility” in Rule 608(a), because subdivision (a)(1) already serves to limit impeachment to proof of such character. Rules 609(a) and 610 also use the term “credibility” when the intent of those rules is to regulate impeachment of a witness’s character for truthfulness. No inference should be derived from the fact that Rule 608(b) differs from the federal rule, but Rules 609 and 610 do not. The Rules attached to the Court’s June 2, 2014 order and posted to the Court’s website have been updated to reflect this correction. The Clerk is directed to provide a copy of this order to all publishers who normally receive notice of rule changes. A True Copy Attest: //s// Rory L. Perry II Clerk of Court STATE OF WEST VIRGINIA At a Regular Term of the Supreme Court of Appeals, continued and held at Charleston, Kanawha County, on August 28, 2014, the following order was made and entered: Re: Notice of Correction to Rule 612(b) and the Comment on Rule 611 of the West Virginia Rules of Evidence By order issued June 2, 2014, the Court approved revisions to the West Virginia Rules of Evidence, to become effective September 2, 2014. Upon additional review, the Court is of the opinion that a correction is necessary in Rule 612(b), in order to clarify the role of the Rules of Evidence in certain depositions. In addition, a slight correction to the comment on Rule 611 is necessary. Additions are shown by underlining, and deletions are shown by strikethrough. Rule 612. Writing Used to Refresh a Witness’s Memory (In Part) (b) Adverse Party’s Options; Deleting Unrelated Matter. An adverse party is entitled to have the writing or object produced at the trial, or hearing, or deposition to inspect it, to cross- examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing or object includes unrelated matter, the court must examine the writing or object in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record. Comment on Rule 612 Rule 612 was taken from the federal counterpart with the following substantive and stylistic changes. The entire rule was modified to include the phrase “an object” taken from the state rule. Rule 612(b) was modified to include the word “trial” taken from the state rule that was not contained in the federal rule. Rule 612(c) was modified to include the phrase “if production of the writing or object at the trial or hearing is impracticable, the court may order it made available for inspection.” The requirement in the existing state rule that in a criminal case the court must strike testimony or declare a mistrial was removed. References to “deposition” in the current state rule were removed because the Rules of Evidence do not apply to depositions. This rule is applicable to depositions and deposition testimony. * * * * Rule 611. Mode and order of Examining Witnesses and Presenting Evidence Comment on Rule 611 (in part) The limitation of cross-examination to the “subject matter of direct examination” in Rule 611(b)(2) is not intended to restrict cross-examination only to those facts elicited during cross direct examination. The Rules attached to the Court’s June 2, 2014 order and posted to the Court’s website have been updated to reflect this correction. The Clerk is directed to provide a copy of this order to all publishers who normally receive notice of rule changes. A True Copy Attest: //s// Rory L. Perry II Clerk of Court Revisions to the West Virginia Rules of Evidence Effective September 2, 2014 West Virginia Rules Of Evidence By order issued June 2, 2014, the Supreme Court of Appeals of West Virginia approved comprehensive revisions to the West Virginia Rules of Evidence.
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