Rules of Criminal Procedure | West Virginia Judiciary

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.]

Rule 2. Purpose and constructions.

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.]

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 or attach 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 describe the offense charged in the complaint or attach the complaint, and the summons 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.]

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, 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.

(4) When setting the conditions of bail or bond in any case involving allegations of domestic violence, including, but not limited to, those cases in which West Virginia Code §62-1C-17c applies, the magistrate setting the bail or bond shall include a condition that the defendant appear with counsel periodically for a hearing to determine whether the defendant has been fully compliant with the conditions of bond. Such hearings shall be scheduled at the time the defendant is released on bail or bond and shall occur no less frequently than every sixty days, although the magistrate may schedule such hearings as frequently as the nature of the case may warrant.

[Effective October 1, 1981; amended effective January 1, 1993; September 1,1995; September 1, 1996.]

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. - The following persons may be present while the grand jury is in session: 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. During deliberations and voting no person other than the jurors and any interpreter needed to assist a hearing-impaired or speech-impaired juror may be present.

(e) Reporting and Disclosure of Proceedings. -

(1) Reporting of Proceedings. - All proceedings, except when the grand jury is deliberating or voting, shall be reported by an official court reporter or a certified court reporter approved by the Supreme Court. An unintentional failure to reproduce all or any portion of a proceeding shall not affect the validity of the prosecution. The 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, February 5, 2009.]

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.]

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.]

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 warrant shall describe the offense charged in the indictment or information, or shall be attached to 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 describe the offense charged in the indictment or information, or shall be attached to the indictment or information, and 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.]

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.]

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; September1, 1995.]

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.]

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.]

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.]

Rule 14. Relief from prejudical 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. - If the joinder of defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the State, the Court may sever the defendants' trials, or provide whatever other relief that justice requires. 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 March 29, 1981; amended effective March 29, 2006.]

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.]

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.]

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.

(d) 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.

(e) 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.

(f) 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.

(g) 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.]

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.]

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.]

Rule 20. [Reserved].

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.]

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.]

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.]

Rule 25. Judge; disability.

(a) During trial. - If by reason of death, sickness or other disability the judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge regularly sitting in or assigned to the court, upon certifying familiarity with the record of the trial, may proceed with and finish the trial.

(b) After verdict or finding of guilt. — If by reason of absence, death, sickness, or other disability the judge before whom the defendant has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, any other judge regularly sitting in or assigned to the court may perform those duties; but if such other judge is satisfied that a judge who did not preside at the trial cannot perform those duties or that it is appropriate for any other reason, that judge may in his or her discretion grant a new trial.

[Effective October 1, 1981; amended effective September 1, 1995.]

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.]

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.]

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.

(c) 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.

(d) 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.

(e) 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.

(f) 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.]

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.]

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.]

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.]

Rule 29. Motion for judgement 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.]

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.]

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.]

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. JUDGEMENT.

Rule 32. Sentence and judgement.

(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

(1) 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.]

Rule 32.1. Revocation or modification of probation.

(a) Revocation of probation or alternatives 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.]

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.]

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.]

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.]

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 Office of the Clerk, West Virginia Supreme Court of Appeals within the time provided by paragraph (b)(1) of this rule. The notice of intent to appeal shall be filed and served in accordance with Rule 5 of the Rules of Appellate Procedure.

(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 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 the Rules of Appellate Procedure.

(3) Time for appeal. - An appeal must be perfected within four months of the entry of the circuit court order in accordance with Rule 5 of the Rules of Appellate Procedure. The appeal period may be extended in accordance with the Rules of Appellate Procedure.

[Effective October 1, 1981; amended effective July 1, 1990; September 1, 1995; January 1, 1996; December 1, 2010. Amended by order entered October 19, 2010, effective December 1, 2010.]

Rule 38. Stay of execution and relief pending review.

(a) 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.

(b) 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.

(c) 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.]

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.]

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.]

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.]

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.]

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.]

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.]

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.]

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.]

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.]

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.]

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.]

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.]

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.]

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.]

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.]

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.]

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.]

Rule 58. Forms.

Abrogated.

[Abrogated effective February 1, 1985.]

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.]

Rule 60. Title.

These rules may be known and cited as the West Virginia Rules of Criminal Procedure and may be cited as W.Va.R.Crim.P.

[Effective October 1, 1981; amended effective September 1, 1995.]

THE WEST VIRGINIA RULES OF CRIMINAL PROCEDURE

Table of Contents

I. SCOPE, PURPOSE AND CONSTRUCTION

Rule 1. Scope.

Rule 2. Purpose and constructions.

II. PRELIMINARY PROCEEDINGS

Rule 3. The complaint.

Rule 4. Arrest warrant or summons upon complaint.

Rule 5. Initial appearance before the magistrate; bail.

Rule 5.1. Preliminary examination.

III. INDICTMENT AND INFORMATION

Rule 6. The grand jury.

Rule 7. The indictment and the information.

Rule 8. Permissive and mandatory joinder of offenses and of defendants.

Rule 9. Warrant or summons upon indictment or information.

IV. ARRAIGNMENT AND PREPARATION FOR TRIAL

Rule 10. Arraignment.

Rule 11. Pleas.

Rule 12. Pleadings and motions before trial; defenses and objections.

Rule 12.1. Notice of Alibi.

Rule 12.2. Notice of insanity defense or expert testimony of defendant's mental condition.

Rule 13. Trial together of indictments or information.

Rule 14. Relief from prejudical joinder

Rule 15. Depositions.

Rule 16. Discovery and inspection.

Rule 17. Subpoena.

Rule 17.1. Pretrial conference.

V. VENUE

Rule 18. Place of prosecution and trial.

Rule 19. Transfer Within the County.

Rule 20. [Reserved].

Rule 21. Transfer from the County of indictment for trial.

Rule 22. Time of motion to transfer.

VI. TRIAL

Rule 23. Trial by jury or by the court.

Rule 24. Trial jurors.

Rule 25. Judge; disability.

Rule 26. Taking of testimony.

Rule 26.1. Determination of foreign law.

Rule 26.2. Production of statements of witnesses.

Rule 26.3 Mistrial.

Rule 27. Proof of official record.

Rule 28. Expert witnesses and interpreters.

Rule 29. Motion for judgement of acquittal.

Rule 29.1. Closing argument.

Rule 30. Instructions to jury; objections.

Rule 31. Verdict.

VII. JUDGEMENT.

Rule 32. Sentence and judgement.

Rule 32.1. Revocation or modification of probation.

Rule 33. New trial.

Rule 34. Arrest of judgment.

Rule 35. Correction or reduction of sentence.

Rule 36. Clerical mistakes.

VIII. APPEAL

Rule 37. Taking appeal.

Rule 38. Stay of execution and relief pending review.

Rule 39. Reserved.

IX. SUPPLEMENTARY AND SPECIAL PROCEEDINGS

Rule 40. Offense arising in another county.

Rule 41. Search and seizure.

Rule 42. Criminal contempt.

X. GENERAL PROVISIONS

Rule 43. Presence of the defendant.

Rule 44. Right to and assignment of counsel.

Rule 45. Time.

Rule 46. Release from custody.

Rule 47. Motions.

Rule 48. Dismissal.

Rule 49. Service and filing of papers.

Rule 50. Calendars.

Rule 51. Exceptions unnecessary.

Rule 52. Harmless error and plain error.

Rule 53. Regulation of conduct in the courtroom.

Rule 54. Application and exception.

Rule 55. Records.

Rule 56. Courts and clerks.

Rule 57. Rules of court.

Rule 58. Forms.

Rule 59. Effective date