If you only remember one point about evidence law in West Virginia, remember this: West Virginia evidence practice is organized under the West Virginia Rules of Evidence. Relevance starts at W. Va. R. Evid. 401, 403; hearsay starts at W. Va. R. Evid. 801, 802. Procedure, examples, and the opinions below hang off West Virginia Rules of Evidence. Authenticity is a separate fight under W. Va. R. Evid. 901, 902. Depositions at trial: W. Va. R. Civ. P. 32 governs civil deposition use at trial. W. Va. R. Crim. P. 16 addresses criminal discovery; prior testimony may be admitted under W. Va. R. Evid. 804(b)(1).
Hearsay: start with the definition
Most hearsay objections in West Virginia are won or lost on the definition, not on an exception. Under W. Va. R. Evid. 801, 802, hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Non-hearsay purposes — verbal acts, effect on the listener, notice, circumstantial evidence of state of mind, and impeachment — remain available when the proponent can articulate them without asking the jury to believe the declarant.
Layered hearsay (hearsay within hearsay) requires an exception or exclusion for each layer. Machine-generated data and non-assertive conduct sit outside the hearsay definition in FRE-aligned jurisdictions, but they still need authenticity and, often, expert or business-records foundations.
West Virginia hearsay opinions
STATE of West Virginia v. EDWARD CHARLES L., Sr.
STATE of West Virginia v. EDWARD CHARLES L., Sr., 183 W. Va. 641 (1990)
…econdhand accounts of the sexual offenses which constituted hearsay evidence; 3) the uncorroborated testimony of the child victims was inherently incredible and does not sustain the guilty verdicts; and 4) the appellant was denied effective assistance of counsel. We find that the lower court committed no reversible error in the proceedings and affirm the appellant's convictions…
STATE of West Virginia v. EDWARD CHARLES L., Sr. is worth reading on West Virginia hearsay because the court put the point in its own words: "econdhand accounts of the sexual offenses which constituted hearsay evidence; 3) the uncorroborated testimony of the child victims was inherently incredible and does not sustain the guilty verdicts; and 4) the appellant was denied effective assistance of counsel. We find that the" Use that passage as the starting point, then read the facts that precede it.
STATE of West Virginia, Plaintiff Below, Appellant v. David Wayne KAUFMAN, Defendant Below, Appellee
…g her death. Victim's statements to others Over Appellant's hearsay objection, the State elicited testimony from Kristy, Zachary, and Kristy's boyfriend, Jimmy Schreckengoest, regarding certain statements the victim made to them of alleged threats and acts of violence by Appellant towards her during the weeks preceding her death. Kristy, Zachary and Jimmy all testified that in…
On hearsay, STATE of West Virginia, Plaintiff Below, Appellant v. David Wayne KAUFMAN, Defendant Below, Appellee speaks to the West Virginia dispute in this passage: "State elicited testimony from Kristy, Zachary, and Kristy's boyfriend, Jimmy Schreckengoest, regarding certain statements the victim made to them of alleged threats and acts of violence by Appellant towards her during the weeks preceding her death." The surrounding opinion shows how the court applied that language to the record.
Tanya L. LACY and Michael Lacy, Her Husband, Plaintiffs Below, Appellants, v. CSX TRANSPORTATION, — Workman, J
…trial court’s improper application of the business records hearsay exception. See Gentry v. Mangum, 195 W.Va. 512, 518, 466 S.E.2d 171, 177 (1995) (stating that “[a] party challenging a circuit court’s evidentiary rulings has an onerous burden because a reviewing court gives special deference to the evidentia-ry ruling's of a circuit court”). The majority cites this Court’s de…
West Virginia opinions such as Tanya L. LACY and Michael Lacy, Her Husband, Plaintiffs Below, Appellants, v. CSX TRANSPORTATION, — Workman, J are cited where hearsay is disputed. The court stated: "See Gentry v. Mangum, 195 W.Va. 512, 518, 466 S.E.2d 171, 177 (1995) (stating that “[a] party challenging a circuit court’s evidentiary rulings has an onerous burden because a reviewing court gives special deference to the evidentia-ry ruling's of a circuit court”)." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE of West Virginia, Plaintiff Below, Appellee, v. Kenneth Jay MASON, Defendant Below, Appellant
…o were unavailable to testify at trial. We address only the hearsay and Confrontation Clause issues because we find the other assignments of error to be without merit. I. FACTS AND PROCEDURAL BACKGROUND On the evening of February 8,1993, several people were drinking beer at the defendant’s house. Those at the defendant’s house included the defendant, Tina Adams, Rodney Canfield…
On hearsay, STATE of West Virginia, Plaintiff Below, Appellee, v. Kenneth Jay MASON, Defendant Below, Appellant speaks to the West Virginia dispute in this passage: "We address only the hearsay and Confrontation Clause issues because we find the other assignments of error to be without merit. I. FACTS AND PROCEDURAL BACKGROUND On the evening of February 8,1993, several people were drinking beer at the defendant’s house." The surrounding opinion shows how the court applied that language to the record.
STATE of West Virginia, Plaintiff Below, Respondent v. Gary Lee ROLLINS, Defendant Below, Petitio — Workman, J
…r the truth of the matter asserted and, therefore, were not hearsay. See W. Va. R. Evid. 801(e) (“Hearsay’ is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). As this Court has previously held ‘Generally, out-of-court statements made by someone other than the declara…
West Virginia opinions such as STATE of West Virginia, Plaintiff Below, Respondent v. Gary Lee ROLLINS, Defendant Below, Petitio — Workman, J are cited where hearsay is disputed. The court stated: "See W. Va. R. Evid. 801(e) (“Hearsay’ is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”)." That is the language to brief; the rest of the decision supplies the procedural posture.
State of West Virginia v. Ronnie Williams
State of West Virginia v. Ronnie Williams, 162 W. Va. 348 (1978)
…uggestive out-of-court identification; the refusal to admit hearsay testimony of another person’s confession to the crime; the denial of appellant’s motion for a new trial based on newly discovered evidence; and, the procedure used for jury selection which resulted in an all white jury. We agree with appellant that the out-of-court identification was not sufficiently reliable t…
State of West Virginia v. Ronnie Williams is worth reading on West Virginia hearsay because the court put the point in its own words: "uggestive out-of-court identification; the refusal to admit hearsay testimony of another person’s confession to the crime; the denial of appellant’s motion for a new trial based on newly discovered evidence; and, the procedure used for jury selection which resulted in an all whit" Use that passage as the starting point, then read the facts that precede it.
Ruth D. Reynolds v. . W. T. Grant Company.
Ruth D. Reynolds v. . W. T. Grant Company., 117 W. Va. 615 (1936)
…isted plaintiff to arise. The rule against the admission of hearsay evidence renders inadmissible mere extrajudicial statements of fact as proof of the facts stated. Under this rule, the statements of the defendant’s store manager were clearly inadmissible. The question, then, is whether these statements fall within some recognized exception to the hearsay rule. There are but t…
On hearsay, Ruth D. Reynolds v. . W. T. Grant Company. speaks to the West Virginia dispute in this passage: "The rule against the admission of hearsay evidence renders inadmissible mere extrajudicial statements of fact as proof of the facts stated. Under this rule, the statements of the defendant’s store manager were clearly inadmissible." The surrounding opinion shows how the court applied that language to the record.
STATE of West Virginia, Plaintiff Below, Appellee, v. Jeffrey Allan PETTREY, Defendant Below, Appellant
…court committed reversible error by admitting inadmissible hearsay evidence; by denying his motion for a competency evaluation of the child victims; by recognizing play therapy as a scientifically reliable method for diagnosing child abuse; and by denying his motion for acquittal notwithstanding the verdict or for a new trial. We find no error and affirm. I. FACTS The appellan…
STATE of West Virginia, Plaintiff Below, Appellee, v. Jeffrey Allan PETTREY, Defendant Below, Appellant is worth reading on West Virginia hearsay because the court put the point in its own words: "court committed reversible error by admitting inadmissible hearsay evidence; by denying his motion for a competency evaluation of the child victims; by recognizing play therapy as a scientifically reliable method for diagnosing child abuse; and by denying his motion for acquittal" Use that passage as the starting point, then read the facts that precede it.
Walking through West Virginia facts
Use this walkthrough to see which West Virginia authority does the work at each step.
A lawyer in West Virginia wants to offer a medical record, a party email, and a statement the declarant made while believing death was imminent.
- Clear relevance and unfair prejudice under W. Va. R. Evid. 401, 403.
- If the email is the opposing party's, test W. Va. R. Evid. 801(d)(2) before the hearsay definition in W. Va. R. Evid. 801, 802.
- For the medical record, lay the business-records foundation in W. Va. R. Evid. 803(6) and the treatment purpose in W. Va. R. Evid. 803(4).
- For the deathbed statement, meet W. Va. R. Evid. 804(b)(2), then authenticate every exhibit under W. Va. R. Evid. 901, 902.
West Virginia keeps hearsay, character, and authenticity on different rules inside the West Virginia Rules of Evidence. Winning one does not win the others.
Party admissions
Statements of an opposing party are among the most important routes around the hearsay bar. West Virginia treats them under W. Va. R. Evid. 801(d)(2). Nothing about the statement need be against interest, contemporaneous, or based on personal knowledge — the theory is adversarial, not reliability-based. A party cannot complain that his own words are unreliable when offered against him.
Scope questions dominate practice: the party's own statement; adopted statements (including silence in circumstances where a reasonable person would deny); statements by authorized speakers; agent or employee statements on matters within the scope of the relationship; and, in criminal conspiracy cases, coconspirator statements during and in furtherance of the conspiracy. A defendant generally cannot introduce his own exculpatory out-of-court statement as a "party admission" against himself — the rule runs one way.
West Virginia party-admission opinions
Shelley S. McDOUGAL and David L. McDougal, Plaintiffs Below, Appellants, v. Julie K. McCAMMON, M.D., Defendant
…ushed by its use. Our review of the record reveals that the admission of the video tape was only harmless error. Accordingly, for reasons described herein, the judgment of the circuit court is affirmed. I. FACTS In February, 1989, Mrs. McDougal went to the defendant’s office with complaints of vaginal discharge and pelvic pain for one month’s duration. The defendant prescribed…
West Virginia opinions such as Shelley S. McDOUGAL and David L. McDougal, Plaintiffs Below, Appellants, v. Julie K. McCAMMON, M.D., Defendant are cited where party admissions is disputed. The court stated: "Our review of the record reveals that the admission of the video tape was only harmless error. Accordingly, for reasons described herein, the judgment of the circuit court is affirmed. I. FACTS In February, 1989, Mrs." That is the language to brief; the rest of the decision supplies the procedural posture.
Carlos James BURNSIDE, Plaintiff Below, Appellee, v. Jacquelyn Nagle BURNSIDE, Defendant Below, Appellant
…use against the other will, if relevant, qualify as a party admission under Rule 801(d)(2) of the West Virginia Rules of Evidence. Normally, to be relevant under Rules 401 and 402, except as to admissions, the proof must be of facts antecedent or contemporaneous with the transaction or so immediately afterwards as to be a significant part of the transaction. It is the intention…
Practitioners open Carlos James BURNSIDE, Plaintiff Below, Appellee, v. Jacquelyn Nagle BURNSIDE, Defendant Below, Appellant when West Virginia party admissions turns on the distinction in this sentence: "Rule 801(d)(2) of the West Virginia Rules of Evidence." Do not lift it out of the facts the court was deciding.
State of West Virginia v. James Lee Green
State of West Virginia v. James Lee Green, 163 W. Va. 681 (1979)
…h a defendant stands charged, must be of a quality that its admission is necessary to prevent manifest injustice and therefore *694outweigh the State’s interest in protecting persons who have been sexually abused, from attempts at besmirchment of their character by ones who have trespassed upon their bodies. IV. Petitioner’s Instruction 17 was erroneously refused, he says: “The…
Practitioners open State of West Virginia v. James Lee Green when West Virginia party admissions turns on the distinction in this sentence: "State’s interest in protecting persons who have been sexually abused, from attempts at besmirchment of their character by ones who have trespassed upon their bodies. IV." Do not lift it out of the facts the court was deciding.
Tanya L. LACY and Michael Lacy, Her Husband, Plaintiffs Below, Appellants, v. CSX TRANSPORTATION, INC., Defendant
…of the maker of the record as a condition precedent to its admission into evidence"); Stone v. Morris, 546 F.2d 730, 738-39 (7th Cir.1976). Thus, in order to satisfy the knowledge requirement of Rule 803(6), the party seeking to admit such evidence may establish either (1) that the preparer of the record had knowledge of the matters reported; or (2) that the information report…
West Virginia opinions such as Tanya L. LACY and Michael Lacy, Her Husband, Plaintiffs Below, Appellants, v. CSX TRANSPORTATION, INC., Defendant are cited where party admissions is disputed. The court stated: "Stone v. Morris, 546 F.2d 730, 738-39 (7th Cir.1976)." That is the language to brief; the rest of the decision supplies the procedural posture.
G. W. Keatley, Admr., Etc. v. Hanna Chevrolet Company, a Corp., Et Al.
G. W. Keatley, Admr., Etc. v. Hanna Chevrolet Company, a Corp., Et Al., 121 W. Va. 669 (1939)
…ugle, 59 W. Va. 113, 52 S. E. 1026. However, an independent admission of fact in an offer or proposed contract of compromise is admissible. Parkersburg & M. Sand Co. v. Smith, 76 W. Va. 246, 85 S. E. 516, Ann. Cas. 1918E, 449; Lovett v. West Virginia Central Gas Co., 73 W. Va. 40, 79 S. E. 1007. “If a statement forming a part of an offer of compromise or made in the course of n…
Practitioners open G. W. Keatley, Admr., Etc. v. Hanna Chevrolet Company, a Corp., Et Al. when West Virginia party admissions turns on the distinction in this sentence: "W. Va. 113, 52 S. E. 1026. However, an independent admission of fact in an offer or proposed contract of compromise is admissible. Parkersburg & M. Sand Co. v. Smith, 76 W. Va. 246, 85 S. E. 516, Ann. Cas. 1918E, 449; Lovett v. West Virginia Central Gas Co., 73 W. Va. 40, 79 S. E." Do not lift it out of the facts the court was deciding.
Business records
The business-records exception under W. Va. R. Evid. 803(6) is the everyday path for medical charts, employment files, bank statements, and maintenance logs. The foundation requires a record made at or near the time by — or from information transmitted by — someone with knowledge; kept in the course of a regularly conducted activity; and made as a regular practice. A custodian or other qualified witness (or a qualifying certification where the jurisdiction allows it) lays the foundation. The opponent may still attack lack of trustworthiness when the source or method of preparation indicates unreliability — litigation-driven reports are the classic failure mode.
Do not confuse authenticity with the business-records exception. You still need to show the exhibit is what you claim it is; the hearsay exception then answers why the out-of-court assertions inside it may be considered for their truth.
West Virginia business-records opinions
Robert G. Hill v. Joseph T. Ryerson & Son, Inc. v. United States Steel Corporation, Third-Party — Caplan, J., dissenting
…nable to agree that the pipe with the paint stick mark is a business record and thereby comes within the exception to the hearsay rule. I believe that the pipe was improperly admitted into evidence and that without it, there was insufficient evidence to link the appellant, U. S. Steel, as the supplier of the tube. The business record exception to the hearsay rule does not apply…
On business records, Robert G. Hill v. Joseph T. Ryerson & Son, Inc. v. United States Steel Corporation, Third-Party — Caplan, J., dissenting speaks to the West Virginia dispute in this passage: "I believe that the pipe was improperly admitted into evidence and that without it, there was insufficient evidence to link the appellant, U. S. Steel, as the supplier of the tube." The surrounding opinion shows how the court applied that language to the record.
STATE of West Virginia v. Paul R. FAIRCHILD; STATE of West Virginia v. Roger Ames DAMRON
…n admitting into evidence without proper foundation certain business records; 4) the State failed to prove that the securities sold were not exempt from the statutory registration requirement; *143 and 5) the State failed to prove that the appellant’s actions were willful violations of the law. I. Fairchild’s first assignment of error is that the eighth count of the indictment…
On business records, STATE of West Virginia v. Paul R. FAIRCHILD; STATE of West Virginia v. Roger Ames DAMRON speaks to the West Virginia dispute in this passage: "State failed to prove that the securities sold were not exempt from the statutory registration requirement; *143 and 5) the State failed to prove that the appellant’s actions were willful violations of the law. I." The surrounding opinion shows how the court applied that language to the record.
Tanya L. LACY and Michael Lacy, Her Husband, Plaintiffs Below, Appellants, v. CSX TRANSPORTATION, INC., Defendant
…ecords that are maintained and kept as normal and customary business records" necessitated their admission at trial); Hard v. Stevens, 65 F.R.D. 637, 639-40 (E.D.Pa.1975) (stipulation waiving necessity of calling custodian of records estopped party from challenging admission of hospital record based upon lack of trustworthiness). Nevertheless, we are satisfied that the knowledg…
Practitioners open Tanya L. LACY and Michael Lacy, Her Husband, Plaintiffs Below, Appellants, v. CSX TRANSPORTATION, INC., Defendant when West Virginia business records turns on the distinction in this sentence: "Hard v. Stevens, 65 F.R.D. 637, 639-40 (E.D.Pa.1975) (stipulation waiving necessity of calling custodian of records estopped party from challenging admission of hospital record based upon lack of trustworthiness)." Do not lift it out of the facts the court was deciding.
Kenneth McKENZIE, Plaintiff Below, Appellant, v. CARROLL INTERNATIONAL CORPORATION, Dba Gaylord East and/or Keyser
…s on appeal that the handwritten notes were admissible as a business record under Rule 803(6) of the West Virginia Rules of Evidence. 14 This Court addressed the application of Rule 803(6) in Syllabus point 7 of Lacy v. CSX Transportation, Inc., 205 W.Va. 630, 520 S.E.2d 418 (1999): Before evidence may be admitted under W. Va. R. Evid. 803(6), the proponent must demonstrate tha…
West Virginia opinions such as Kenneth McKENZIE, Plaintiff Below, Appellant, v. CARROLL INTERNATIONAL CORPORATION, Dba Gaylord East and/or Keyser are cited where business records is disputed. The court stated: "Rule 803(6) of the West Virginia Rules of Evidence. 14 This Court addressed the application of Rule 803(6) in Syllabus point 7 of Lacy v. CSX Transportation, Inc., 205 W.Va. 630, 520 S.E.2d 418 (1999): Before evidence may be admitted under W. Va. R. Evid." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE of West Virginia, Plaintiff Below, Appellee, v. Julie WYATT, Defendant Below, Appellant
…s that the letter was not admitted into evidence, but, as a business record, it might well have been admitted under the well-rooted exception to the hearsay rule for business records, now encompassed within Rule 803(6) of the West Virginia Rules of Evidence. One seeking to establish that a matter violates the Constitution of this State or the United States bears the burden of e…
STATE of West Virginia, Plaintiff Below, Appellee, v. Julie WYATT, Defendant Below, Appellant is worth reading on West Virginia business records because the court put the point in its own words: "Rule 803(6) of the West Virginia Rules of Evidence." Use that passage as the starting point, then read the facts that precede it.
Important hearsay exceptions that do not require unavailability
Three present-sense and mental-state exceptions carry most of the remaining traffic in West Virginia trial practice.
Excited utterance — W. Va. R. Evid. 803(2). A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. Timing is elastic; composure defeats the exception even minutes after the event, while visible distress can preserve it for hours.
Present sense impression — W. Va. R. Evid. 803(1). A statement describing or explaining an event or condition made while or immediately after the declarant perceived it. Contemporaneity is strict — seconds and minutes, not hours — and excitement is not required.
Then-existing mental, emotional, or physical condition — W. Va. R. Evid. 803(3). Statements of then-existing state of mind (including intent and plan) come in; statements of memory or belief offered to prove the fact remembered generally do not. Intent-to-meet-another-person cases remain the hardest applications.
Declarant unavailable
When the declarant is unavailable under W. Va. R. Evid. 804(a), West Virginia opens a second suite of exceptions. Unavailability typically includes privilege, refusal to testify despite court order, lack of memory, death or then-existing infirmity, and absence despite reasonable efforts to procure attendance. The proponent bears the burden of proving unavailability with specific facts — a bare assertion that the witness "could not be found" is not enough.
Former testimony under W. Va. R. Evid. 804(b)(1) is the workhorse once unavailability is shown: testimony given as a witness at a trial, hearing, or lawful deposition, offered against a party who had an opportunity and similar motive to develop it by direct, cross, or redirect. Criminal confrontation analysis runs in parallel and is not satisfied merely because a hearsay exception applies.
Dying declarations
Dying declarations under W. Va. R. Evid. 804(b)(2) remain a narrow but decisive exception in homicide and, in many jurisdictions, civil cases involving the cause or circumstances of what the declarant believed to be impending death. The foundational showing is the declarant's belief that death was imminent — not that death in fact followed within any particular time — plus a statement concerning the cause or circumstances of what the declarant believed to be the impending death. Courts police coaching and narrative expansions aggressively.
West Virginia dying-declaration opinions
State of West Virginia v. Bonnie June Hamric
State of West Virginia v. Bonnie June Hamric, 151 W. Va. 1 (1966)
…the hearsay rule as being a part of the res gestae and as a dying declaration. The defendant’s objection was overruled and the jury was allowed to consider this evidence. The ambulance driver delivered Winters to the emergency room of the Charleston General Hospital in Charleston where he was operated on by a chest surgeon who removed most of the pellets but was unable to remov…
West Virginia opinions such as State of West Virginia v. Bonnie June Hamric are cited where dying declaration is disputed. The court stated: "The defendant’s objection was overruled and the jury was allowed to consider this evidence." That is the language to brief; the rest of the decision supplies the procedural posture.
State v. Clark
State v. Clark, 64 W. Va. 625 (1908)
…evidence to' that body.” There may have been more than one dying declaration. Was this evidence legal and competent? The general rule is that an indictment must be based upon legal evidence, and without it an indictment should not be returned. 20 Cyc. 1346. But as this authority says: “ While this rule is laid down for the guidance of grand juries they are not as a matter of f…
On dying declaration, State v. Clark speaks to the West Virginia dispute in this passage: "There may have been more than one dying declaration. Was this evidence legal and competent?" The surrounding opinion shows how the court applied that language to the record.
Charles L. Crookham v. State
Charles L. Crookham v. State, 5 W. Va. 510 (1871)
…igned relates to the question asked Mrs. Finimore as to the dying declarations of Finimore, and her answer to that question. Mrs. Finimore after giving evidence which was not objected to and which was not objectionable, in which she states that her husband was dead, and that she had had a conversation with him just before his death, when he was conscious he was dying, fvas aske…
West Virginia opinions such as Charles L. Crookham v. State are cited where dying declaration is disputed. The court stated: "Mrs. Finimore as to the dying declarations of Finimore, and her answer to that question. Mrs." That is the language to brief; the rest of the decision supplies the procedural posture.
State of West Virginia v. Gary L. Young
State of West Virginia v. Gary L. Young, 166 W. Va. 309 (1980)
…Detective Dent while at the hospital does not qualify as a dying declaration and, as such, was improperly admitted by the trial court under that well known exception to the hearsay rule. We disagree with the *322 appellant and hold that the statement was properly admitted. Primarily, the appellant argues that there was insufficient evidence that Pamela Young was conscious that…
Practitioners open State of West Virginia v. Gary L. Young when West Virginia dying declaration turns on the distinction in this sentence: "Detective Dent while at the hospital does not qualify as a dying declaration and, as such, was improperly admitted by the trial court under that well known exception to the hearsay rule. We disagree with the *322 appellant and hold that the statement was properly admitted." Do not lift it out of the facts the court was deciding.
STATE of West Virginia, Plaintiff Below, Appellee, v. Shawn SATTERFIELD, Defendant Below, Appellant
…ing into evidence the suicide note of Moore pursuant to the dying declaration exception to the hearsay rule found in the West Virginia Rules of Evidence 804(b)(2). Even before the adoption of the rules of evidence, hearsay was generally not permitted in trials. See 29 Am.Jur.2d Evidence § 658 (1994). The rationale for this rule is that out of court statements lack the conventio…
On dying declaration, STATE of West Virginia, Plaintiff Below, Appellee, v. Shawn SATTERFIELD, Defendant Below, Appellant speaks to the West Virginia dispute in this passage: "Moore pursuant to the dying declaration exception to the hearsay rule found in the West Virginia Rules of Evidence 804(b)(2). Even before the adoption of the rules of evidence, hearsay was generally not permitted in trials. See 29 Am.Jur.2d Evidence § 658 (1994)." The surrounding opinion shows how the court applied that language to the record.
State v. Hood
State v. Hood, 63 W. Va. 182 (1907)
…Barnes. It is claimed that the court erred in allowing the dying declaration of Barnes reduced to writing to go before the jury. One objection to the dying declaration is, that it does not appear that Barnes believed in a God and rewards and punishment after death. By the common law of England want of such belief makes a witness incompetent on the principle that one who does n…
State v. Hood is worth reading on West Virginia dying declaration because the court put the point in its own words: "Barnes. It is claimed that the court erred in allowing the dying declaration of Barnes reduced to writing to go before the jury. One objection to the dying declaration is, that it does not appear that Barnes believed in a God and rewards and punishment after death." Use that passage as the starting point, then read the facts that precede it.
State v. . Mat Justice
State v. . Mat Justice, 107 W. Va. 490 (1929)
…st Virginia side sometime that afternoon. The effect of the dying declaration put in evidence by the State, to which we have averted, was sought to be weakened by the introduction of contradictory statements made by the deceased to witnesses for the defense. The defendant insists that the verdict is contrary to the law and the evidence. True, the defendant and five eye witnesse…
State v. . Mat Justice is worth reading on West Virginia dying declaration because the court put the point in its own words: "Virginia side sometime that afternoon. The effect of the dying declaration put in evidence by the State, to which we have averted, was sought to be weakened by the introduction of contradictory statements made by the deceased to witnesses for the defense." Use that passage as the starting point, then read the facts that precede it.
Medical diagnosis or treatment statements
Statements made for medical diagnosis or treatment under W. Va. R. Evid. 803(4) cover medical history, past or present symptoms, and their general cause when reasonably pertinent to diagnosis or treatment. The exception is not limited to treating physicians; statements to nurses, EMTs, and consulting clinicians can qualify when the diagnostic purpose is genuine. Fault and identity remain the usual battleground: "I was hit by a car" is often pertinent; "the light was green" usually is not; abuser identity in child-abuse and domestic-violence cases is heavily litigated.
West Virginia medical-statement opinions
STATE of West Virginia, Plaintiff Below, Appellee v. Kevin B. PAYNE, Defendant Below, Appellant
…the therapist’s testimony is admissible at trial under the medical diagnosis or treatment exception to the hearsay rule, West Virginia Rule of Evidence 803(4), if the declarant’s motive in making the statement is consistent with the purposes of promoting treatment and the content of the statement is reasonably relied upon by the therapist for treatment. The testimony is inadmi…
On medical diagnosis hearsay, STATE of West Virginia, Plaintiff Below, Appellee v. Kevin B. PAYNE, Defendant Below, Appellant speaks to the West Virginia dispute in this passage: "West Virginia Rule of Evidence 803(4), if the declarant’s motive in making the statement is consistent with the purposes of promoting treatment and the content of the statement is reasonably relied upon by the therapist for treatment." The surrounding opinion shows how the court applied that language to the record.
STATE of West Virginia, Plaintiff Below, Appellee, v. Jeffrey Allan PETTREY, Defendant Below, Appellant
…s from the hearsay rule statements made for the purposes of medical diagnosis or treatment. The circuit court "ruled that the statements of D.R. to his school teacher and principle [sic] were admissible; the statements of child(ren) to the school counselor, the police officer and the grandmother were inadmissible[.]" After receiving further evidence, the court determined that M…
Practitioners open STATE of West Virginia, Plaintiff Below, Appellee, v. Jeffrey Allan PETTREY, Defendant Below, Appellant when West Virginia medical diagnosis hearsay turns on the distinction in this sentence: "The circuit court 'ruled that the statements of D.R. to his school teacher and principle [sic] were admissible; the statements of child(ren) to the school counselor, the police officer and the grandmother were inadmissible[." Do not lift it out of the facts the court was deciding.
Matthew WYSONG, by His Mother, Mary L. RAMSEY, Petitioner Below, Appellee v. Martha WALKER, in Her Official Capacity
…ical eligibility criteria. First, the applicant must have a medical diagnosis of mental retardation and/or a related condition. Related conditions include autism, cerebral palsy, epilepsy, or any condition, other than mental illness, found to be closely related to mental retardation because the condition results in impairment of general intellectual functioning or adaptive beha…
West Virginia opinions such as Matthew WYSONG, by His Mother, Mary L. RAMSEY, Petitioner Below, Appellee v. Martha WALKER, in Her Official Capacity are cited where medical diagnosis hearsay is disputed. The court stated: "First, the applicant must have a medical diagnosis of mental retardation and/or a related condition." That is the language to brief; the rest of the decision supplies the procedural posture.
In Re the Marriage of MISTY D.G., Petitioner Below, Appellee v. RODNEY L. F., Respondent Below, Appellant
…t is available as a witness:” (4)Statements for purposes of medical diagnosis or treatment. — Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar- as reasonably pertinent to diagnosis or treatment. See…
West Virginia opinions such as In Re the Marriage of MISTY D.G., Petitioner Below, Appellee v. RODNEY L. F., Respondent Below, Appellant are cited where medical diagnosis hearsay is disputed. The court stated: "Statements for purposes of medical diagnosis or treatment." That is the language to brief; the rest of the decision supplies the procedural posture.
Lee A. ATKINS and Lisa Lynn Atkins, Individually and as Next Friend of Lee M. Atkins, an Infant v. Zana Lou Midcap
…the hearsay rule involving statements made for purposes of medical diagnosis or treatment. The Appellant argues that the statements regarding ownership of the dog did not fall within the parameters of the medical diagnosis or treatment exception to the hearsay rule and should not have been permitted. The Appellees maintain that the hearsay was admissible due to the Appellant’s…
West Virginia opinions such as Lee A. ATKINS and Lisa Lynn Atkins, Individually and as Next Friend of Lee M. Atkins, an Infant v. Zana Lou Midcap are cited where medical diagnosis hearsay is disputed. The court stated: "The Appellant argues that the statements regarding ownership of the dog did not fall within the parameters of the medical diagnosis or treatment exception to the hearsay rule and should not have been permitted." That is the language to brief; the rest of the decision supplies the procedural posture.
State of West Virginia v. Edward C.
State of West Virginia v. Edward C. (2020)
…quirements of the hearsay exception for statements made for medical diagnosis or treatment. Petitioner contends that S.C. was taken to the CAC and interviewed solely to obtain information to use to indict petitioner, and he points to S.C.’s statement, “Well my papa he touched me right here and right here and that’s why I’m here,” to support his contention. Further, petitioner c…
West Virginia opinions such as State of West Virginia v. Edward C. are cited where medical diagnosis hearsay is disputed. The court stated: "Petitioner contends that S.C. was taken to the CAC and interviewed solely to obtain information to use to indict petitioner, and he points to S.C.’s statement, “Well my papa he touched me right here and right here and that’s why I’m here,” to support his contention." That is the language to brief; the rest of the decision supplies the procedural posture.
Use of depositions at trial
W. Va. R. Civ. P. 32 governs civil deposition use at trial. W. Va. R. Crim. P. 16 addresses criminal discovery; prior testimony may be admitted under W. Va. R. Evid. 804(b)(1).
Deposition use is always a two-layer problem: procedural permission to read or play the deposition, plus a hearsay path (often former testimony, party admission, or impeachment). Counsel who satisfy the civil or criminal procedure rule but skip the evidence-rule foundation invite a sustained objection; counsel who have a hearsay exception but failed to preserve the deposition under the procedural rule face the same result. Video designations, counter-designations, and completeness objections should be teed up before the jury is seated.
West Virginia deposition / former-testimony opinions
Crumlish's Adm'r v. Shenandoah Val. R. Co. Fidelity Insurance, Trust & Safe Deposit Co. v. Same
…’s official report of money paid in on stock, proved by his deposition in this case to be correct, is to‘be taken as true. It is no answer to say that in reaching this conclusion the court would be taking a mere conjecture, based on probability. Courts, in determining’ facts, act upon nothing else but probabilities of more or less cogency and convincing power. In fact, all huma…
Practitioners open Crumlish's Adm'r v. Shenandoah Val. R. Co. Fidelity Insurance, Trust & Safe Deposit Co. v. Same when West Virginia deposition / former testimony turns on the distinction in this sentence: "It is no answer to say that in reaching this conclusion the court would be taking a mere conjecture, based on probability. Courts, in determining’ facts, act upon nothing else but probabilities of more or less cogency and convincing power." Do not lift it out of the facts the court was deciding.
Michael RINE, an Infant and Incompetent, by and Through His Mother, Natural Guardian and Next of Friend, Traci L
…discretion. IV The appellants also object to the use of the deposition of a non-witness, non-party who was “available” to testify. The appellants maintain that counsel on behalf of Dr. Irisari had to show the unavailability of the witness, who is Ms. Rine’s sister, before the deposition could be used. The appellants point out that the condition of the infant at birth was a cruc…
On deposition / former testimony, Michael RINE, an Infant and Incompetent, by and Through His Mother, Natural Guardian and Next of Friend, Traci L speaks to the West Virginia dispute in this passage: "IV The appellants also object to the use of the deposition of a non-witness, non-party who was “available” to testify. The appellants maintain that counsel on behalf of Dr. Irisari had to show the unavailability of the witness, who is Ms." The surrounding opinion shows how the court applied that language to the record.
Tressler Coal Mining Company v. Julius Klefeld Et Al.
Tressler Coal Mining Company v. Julius Klefeld Et Al., 125 W. Va. 301 (1943)
…’s demurrer to the special replication was sustained. After depositions were taken, certain facts stipulated and exhibits filed on the issues thus raised, a final decree was entered which found that: (a) Royalties from the coal company’s development of the leased tracts had not been applied on the notes secured by the deed of trust as provided in the lease and the Klefeld agree…
Tressler Coal Mining Company v. Julius Klefeld Et Al. is worth reading on West Virginia deposition / former testimony because the court put the point in its own words: "’s demurrer to the special replication was sustained. After depositions were taken, certain facts stipulated and exhibits filed on the issues thus raised, a final decree was entered which found that: (a) Royalties from the coal company’s development of the leased tracts had not b" Use that passage as the starting point, then read the facts that precede it.
Harry S. Irons, Trustee v. H. W. Blas
Harry S. Irons, Trustee v. H. W. Blas, 92 W. Va. 236 (1922)
…: An adverse ruling upon an objection to the admission of a deposition in evidence constitutes the basis of all of the assignments of error set forth in this case. Presumptively, it was the sole ground of the motion to set aside the verdict, since no other is urged here, for reversal of the judgment. • The action was assumpsit by the trustee appointed in a bankruptcy proceeding…
On deposition / former testimony, Harry S. Irons, Trustee v. H. W. Blas speaks to the West Virginia dispute in this passage: "An adverse ruling upon an objection to the admission of a deposition in evidence constitutes the basis of all of the assignments of error set forth in this case." The surrounding opinion shows how the court applied that language to the record.
STATE of West Virginia, Plaintiff Below, Appellee, v. Ronald REED, Sr., Defendant Below, Appellant
…or to the trial court’s ruling that permitted a video-taped deposition to be introduced at trial and to the State’s failure to provide criminal and psychological records of the victims, and additionally asserts that the evidence was insufficient to support the convictions. 2 After a careful review of the briefs and record submitted on appeal, and having listened to the oral arg…
West Virginia opinions such as STATE of West Virginia, Plaintiff Below, Appellee, v. Ronald REED, Sr., Defendant Below, Appellant are cited where deposition / former testimony is disputed. The court stated: "State’s failure to provide criminal and psychological records of the victims, and additionally asserts that the evidence was insufficient to support the convictions." That is the language to brief; the rest of the decision supplies the procedural posture.
ESTATE OF Harry Melvin HELMICK, by Goldie M. FOX, of the Estate of Harry Melvin Helmick, Below v. Carl J. MARTIN II
…situation of the parking lot. The facts appearing from the depositions are essentially undisputed. The boundary of the parking lot was an open boundary of approximately 160 feet to West Virginia Route 20. There was insufficient visibility to safely exit from the south end, but it was safe to exit from the north end of the parking lot. A deposition was taken from a district eng…
West Virginia opinions such as ESTATE OF Harry Melvin HELMICK, by Goldie M. FOX, of the Estate of Harry Melvin Helmick, Below v. Carl J. MARTIN II are cited where deposition / former testimony is disputed. The court stated: "The facts appearing from the depositions are essentially undisputed. The boundary of the parking lot was an open boundary of approximately 160 feet to West Virginia Route 20." That is the language to brief; the rest of the decision supplies the procedural posture.
Stella F. JONES, Appellant, v. Heber H. GARNES and Brenda K. Games, Appellees
Stella F. JONES, Appellant, v. Heber H. GARNES and Brenda K. Games, Appellees, 183 W. Va. 304 (1990)
…stify at trial, but he testified pursuant to an evidentiary deposition. Objections were made by appel-lee’s counsel during this deposition regarding the deputy giving an opinion as to which party failed to yield the right of way. The specific objection to this opinion testimony was grounded on the premise that it went to the “ultimate issue.” The trial took place on November 22…
Practitioners open Stella F. JONES, Appellant, v. Heber H. GARNES and Brenda K. Games, Appellees when West Virginia deposition / former testimony turns on the distinction in this sentence: "Objections were made by appel-lee’s counsel during this deposition regarding the deputy giving an opinion as to which party failed to yield the right of way. The specific objection to this opinion testimony was grounded on the premise that it went to the “ultimate issue." Do not lift it out of the facts the court was deciding.
STATE of West Virginia ex rel. O.C. SPAULDING, Prosecuting Attorney for Putnam County v. Honorable Clarence L. WATT
…l witness for the State in a criminal prosecution to give a deposition to the defense. We find that the court exceeded its legitimate powers in ordering the deposition, and we grant the writ of prohibition prayed for. The defendant below, Michael B. Pauley, was indicted in the Circuit Court of Putnam County on a charge of first-degree murder in connection with the August 29, 19…
On deposition / former testimony, STATE of West Virginia ex rel. O.C. SPAULDING, Prosecuting Attorney for Putnam County v. Honorable Clarence L. WATT speaks to the West Virginia dispute in this passage: "State in a criminal prosecution to give a deposition to the defense. We find that the court exceeded its legitimate powers in ordering the deposition, and we grant the writ of prohibition prayed for. The defendant below, Michael B." The surrounding opinion shows how the court applied that language to the record.
Authenticity: why it matters and how to prove it
Authenticity is not a hearsay doctrine and it is not optional. Under W. Va. R. Evid. 901, 902, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Self-authenticating categories — certified public records, newspapers, acknowledged documents, trade inscriptions, and (where adopted) certified domestic records of a regularly conducted activity — shorten the path, but most trial exhibits still need a sponsoring witness, distinctive characteristics, chain of custody, or process-or-system evidence.
West Virginia coal, chemical, and rural-property cases turn on authenticated MSHA records, medical charts, and deed chains under W. Va. R. Evid. 901–902.
Why authenticity gets its own section in every West Virginia trial notebook:
- It is a condition precedent. An unauthenticated exhibit never reaches the relevance, hearsay, or privilege analysis in a useful way — the jury never properly considers it.
- Digital evidence multiplies the failure modes. Screenshots, social-media posts, text threads, and cloud downloads require hash values, account attribution, metadata, or a percipient witness who saw the content created or received.
- Chain of custody is authenticity by another name. Drugs, firearms, biological samples, and seized devices are excluded when the links from seizure to lab to courtroom are broken, even if a hearsay exception would otherwise apply to a lab report.
- Business-records shortcuts do not replace authentication. A custodian can explain record-keeping practices and still fail if nobody can say the particular PDF or printout is the record of this patient, this account, or this machine.
- Self-authentication is narrow. Counsel who wave a notarization or a letterhead and skip the rest of Rule 901-style analysis often lose when the document's contents are disputed.
Practical authentication checklist for West Virginia trials: identify the exhibit; choose a 901 method or a 902 category; line up the sponsoring witness or certificate; preserve chain-of-custody testimony for physical and digital items; and separate the authenticity objection from any hearsay objection so the court rules on each.
West Virginia authenticity opinions
STATE of West Virginia, Plaintiff Below, Appellee, v. Elizabeth Ladybird JENKINS, Defendant Below, Appellant
…constitutional basis, we deem it appropriate to address the authentication requirement set forth in W.Va.R.Evid. 901. A. W.Va.R.Evid. 901(a) states: “Requirement of Authentication or Identification. (a) General,¿¡provision. — The requirement of authenticaffiíf or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding th…
West Virginia opinions such as STATE of West Virginia, Plaintiff Below, Appellee, v. Elizabeth Ladybird JENKINS, Defendant Below, Appellant are cited where authentication is disputed. The court stated: "W.Va.R.Evid. 901. A. W.Va.R.Evid. 901(a) states: “Requirement of Authentication or Identification. (a) General,¿¡provision." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE Ex Rel. Dana December SMITH, Petitioner Below, Appellant, v. Thomas McBRIDE, Warden, Mt. Olive Correctional
…sed upon newly discovered evidence, and in considering an unauthenticated letter. After a careful review of the briefs and the record submitted on appeal, and having listened to the oral arguments of the parties, we affirm. I. FACTUAL AND PROCEDURAL HISTORY On Monday, September 9, 1991, Robert McClain drove from his home in Ashland, Kentucky, to visit his mother, sixty-three ye…
STATE Ex Rel. Dana December SMITH, Petitioner Below, Appellant, v. Thomas McBRIDE, Warden, Mt. Olive Correctional is worth reading on West Virginia authentication because the court put the point in its own words: "After a careful review of the briefs and the record submitted on appeal, and having listened to the oral arguments of the parties, we affirm. I." Use that passage as the starting point, then read the facts that precede it.
Despard, Adm'r v. Pearcy
Despard, Adm'r v. Pearcy, 65 W. Va. 140 (1909)
…ify the' conveyance. Here we have not a question of lack of authentication of papers, as in Deni v. Wait's Adm'r, 9 W. Ya. 44, relied upon by counsel; but we have a question of lack of proof of allegations of a bill put in issue by proper pleadings. The deed was properly authenticated; yet it did not prove the case made by the bill. Nothing else was offered to support the bill,…
West Virginia opinions such as Despard, Adm'r v. Pearcy are cited where authentication is disputed. The court stated: "Here we have not a question of lack of authentication of papers, as in Deni v. Wait's Adm'r, 9 W. Ya. 44, relied upon by counsel; but we have a question of lack of proof of allegations of a bill put in issue by proper pleadings." That is the language to brief; the rest of the decision supplies the procedural posture.
Lockhead v. Berkeley Springs Waterworks & Improvement Co.
Lockhead v. Berkeley Springs Waterworks & Improvement Co., 40 W. Va. 553 (1895)
…by its law to administer an oath, and shall be deemed duly authenticated if it be subscribed by such officer, and there be annexed to it a certificate of the clerk or other officer of a court of record of such state or country, under an official seal, verifying the genuineness of the signature of the first mentioned officer, and his authority to administer an oath.” It must be…
West Virginia opinions such as Lockhead v. Berkeley Springs Waterworks & Improvement Co. are cited where authentication is disputed. The court stated: "by its law to administer an oath, and shall be deemed duly authenticated if it be subscribed by such officer, and there be annexed to it a certificate of the clerk or other officer of a court of record of such state or country, under an official seal, verifying the genuineness of" That is the language to brief; the rest of the decision supplies the procedural posture.
In Re: The Estate of Jack W. Hardin
In Re: The Estate of Jack W. Hardin, 158 W. Va. 614 (1975)
…is appeal is whether a copy of a foreign divorce decree not authenticated as provided in W. Va. Code, 1931, 57-1-12 constitutes a proper voucher for proving a claim against the estate of a decedent as required by W. Va. Code, 1931, 44-2-5. Jack W. Hardin died intestate in Kanawha County, West Virgina on July 5, 1970 and his widow, Grace D. Hardin, was appointed administratrix o…
West Virginia opinions such as In Re: The Estate of Jack W. Hardin are cited where authentication is disputed. The court stated: "W. Va. Code, 1931, 57-1-12 constitutes a proper voucher for proving a claim against the estate of a decedent as required by W. Va. Code, 1931, 44-2-5. Jack W. Hardin died intestate in Kanawha County, West Virgina on July 5, 1970 and his widow, Grace D." That is the language to brief; the rest of the decision supplies the procedural posture.
James Boyd SOUTHERN, Below v. Dudley BURGESS, Warden, Southern West Virginia Regional Jail, and William C. Duncil
…whether the Parole Board violated its rule as it relates to authenticating documents proffered as evidence. The pertinent provision in 92 CSR 13.9(d) of the Rules of the Parole Board states that: “(d) Notwithstanding any other rule, documentary evidence may be admitted for the truth of the matters set forth in the document if: “(1) The document was prepared by a person with dir…
On authentication, James Boyd SOUTHERN, Below v. Dudley BURGESS, Warden, Southern West Virginia Regional Jail, and William C. Duncil speaks to the West Virginia dispute in this passage: "Parole Board violated its rule as it relates to authenticating documents proffered as evidence. The pertinent provision in 92 CSR 13." The surrounding opinion shows how the court applied that language to the record.
Central Trust Company of Illinois v. Hearne
Central Trust Company of Illinois v. Hearne, 78 W. Va. 6 (1916)
…d of fiduciary appointees. The sufficiency of the attempted authentication of these documents in the lower court wras, and on this review is, challenged by the defendant Hearne. The purpose to be served by the filing of exhibit A was to show the corporate organization of the petitioner, and its authority under the laws of Illinois to engage in a general banking business in Cook…
Central Trust Company of Illinois v. Hearne is worth reading on West Virginia authentication because the court put the point in its own words: "The sufficiency of the attempted authentication of these documents in the lower court wras, and on this review is, challenged by the defendant Hearne." Use that passage as the starting point, then read the facts that precede it.
Carmichael v. Reed
Carmichael v. Reed, 76 W. Va. 672 (1915)
…ter did. To the admission of these deeds, in the absence of authenticated copies of such of the original papers of the cause as would *676identify the land and show that the persons whose title was sought to be affected were indeed parties thereto, defendants objected, and later moved to exclude them for this and other reasons, which objetions and motion the court overruled. In…
West Virginia opinions such as Carmichael v. Reed are cited where authentication is disputed. The court stated: "ter did. To the admission of these deeds, in the absence of authenticated copies of such of the original papers of the cause as would *676identify the land and show that the persons whose title was sought to be affected were indeed parties thereto, defendants objected, and later" That is the language to brief; the rest of the decision supplies the procedural posture.
Practice checklist
- State the relevance theory in one sentence before naming an exception.
- Run the 403 / unfair-prejudice balance explicitly for other-acts and graphic exhibits.
- For character or other-acts evidence, identify the non-propensity purpose and request a limiting instruction on the record.
- Decide whether an out-of-court statement is hearsay for the purpose offered before hunting exceptions.
- Lay business-records foundations with time, knowledge, regular practice, and custodial qualifications — or a qualifying certification.
- Prove unavailability with specific facts before offering former testimony or dying declarations.
- Treat deposition use as procedure-plus-hearsay; designate and counter-designate early.
- Authenticate every exhibit under W. Va. R. Evid. 901, 902 (or the self-authentication path) before arguing hearsay.
- Preserve chain of custody for physical and digital evidence with named custodians.
- Search LawDiver for recent West Virginia appellate evidence opinions before mediation or motions in limine.
Contents
- General standards of admissibility
- Character evidence
- Hearsay: start with the definition
- Party admissions
- Business records
- Important hearsay exceptions that do not require unavailability
- Declarant unavailable
- Dying declarations
- Medical diagnosis or treatment statements
- Use of depositions at trial
- Authenticity: why it matters and how to prove it
- Practice checklist
- Frequently asked questions
General standards of admissibility
West Virginia starts every evidence dispute with relevance and unfair prejudice. Under W. Va. R. Evid. 401, 403, evidence is relevant when it has any tendency to make a fact of consequence more or less probable, and relevant evidence is still excluded when its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time. Preliminary questions of admissibility are for the court; conditional relevance and limited-purpose instructions keep otherwise-usable proof from becoming a Trojan horse for propensity or truth-of-the-matter use.
West Virginia integrates selected evidence topics in W. Va. Code ch. 57 alongside court rules. Appellate courts apply abuse-of-discretion review.
Practice tip: articulate the theory of relevance in one sentence before citing the exception. Lawyers who lead with "it's a business record" without explaining what fact the record proves often lose the 403 balance even when the hearsay foundation is clean.
Character evidence
Character evidence in West Virginia is governed by W. Va. R. Evid. 404, 405. The default rule is familiar: evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. The same body of law then carves out the classic exceptions — essential-element character, accused-opens-the-door reputation or opinion, and other-acts evidence offered for a non-propensity purpose such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
Other-acts notice, 403 balancing, and limiting instructions do most of the real work. In criminal cases, prosecutors who dump prior misconduct without a specific non-propensity theory invite reversal; defense counsel who open the door to good-character testimony without anticipating rebuttal create the very propensity inference the rules were designed to police.
West Virginia character-evidence opinions
STATE of West Virginia, Plaintiff Below, Appellee, v. Lyle B. McGINNIS, Jr., Defendant Below, Appellant
…purpose other than proving conduct by means of the general propensity inference (“he stole in the past, so he probably stole on this occasion”). 7 On the other hand, the prosecution is required to identify the specific purpose for which the evidence is being offered and the jury must be instructed to limit its consideration of the evidence to only that purpose. See TXO Product…
Practitioners open STATE of West Virginia, Plaintiff Below, Appellee, v. Lyle B. McGINNIS, Jr., Defendant Below, Appellant when West Virginia character evidence turns on the distinction in this sentence: "On the other hand, the prosecution is required to identify the specific purpose for which the evidence is being offered and the jury must be instructed to limit its consideration of the evidence to only that purpose." Do not lift it out of the facts the court was deciding.
STATE of West Virginia v. Mark Stewart NEUMAN
STATE of West Virginia v. Mark Stewart NEUMAN, 179 W. Va. 580 (1988)
…at objection. The judge later explained that he thought the character evidence was admissible under the rules of evidence, while noting his concern that “they might be suggesting to do it in rebuttal, although it’s not clear.” The presentation of the defense’s case-in-chief was brief, concentrating on two matters involving physical evidence. A state trooper testified that the c…
West Virginia opinions such as STATE of West Virginia v. Mark Stewart NEUMAN are cited where character evidence is disputed. The court stated: "The judge later explained that he thought the character evidence was admissible under the rules of evidence, while noting his concern that “they might be suggesting to do it in rebuttal, although it’s not clear." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE of West Virginia v. Anthony D. MARRS
STATE of West Virginia v. Anthony D. MARRS, 180 W. Va. 693 (1989)
…ddress defendant’s assignment of error to the trial court’s character evidence ruling to guide courts in future cases. I In Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), the U.S. Supreme Court held that a State denies a black defendant equal protection when it puts him on trial before a jury from which members of his race have been purposefully excluded. In Swai…
On character evidence, STATE of West Virginia v. Anthony D. MARRS speaks to the West Virginia dispute in this passage: "I In Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), the U.S. Supreme Court held that a State denies a black defendant equal protection when it puts him on trial before a jury from which members of his race have been purposefully excluded." The surrounding opinion shows how the court applied that language to the record.
STATE of West Virginia, Plaintiff, v. Billy Ray MCLAUGHLIN, Defendant
STATE of West Virginia, Plaintiff, v. Billy Ray MCLAUGHLIN, Defendant, 226 W. Va. 229 (2010)
…er will be introduced at trial. If the defendant introduces character evidence, then the door is opened to the prosecutor to rebut that evidence with something to show the defendant's bad character. The lofty, ivory tower theory behind bifurcation is that it would help defendants in their quest to introduce evidence of good character. What happens in reality is that prosecutors…
Practitioners open STATE of West Virginia, Plaintiff, v. Billy Ray MCLAUGHLIN, Defendant when West Virginia character evidence turns on the distinction in this sentence: "If the defendant introduces character evidence, then the door is opened to the prosecutor to rebut that evidence with something to show the defendant's bad character." Do not lift it out of the facts the court was deciding.
Karl S. DIETZ, Petitioner Below, Appellant, v. Carl LEGURSKY, Respondent Below, Appellee
…of the West Virginia Rules of Evidence provides: Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes, (a) Character Evidence Generally. — Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: (2) Character of Victim of a…
Practitioners open Karl S. DIETZ, Petitioner Below, Appellant, v. Carl LEGURSKY, Respondent Below, Appellee when West Virginia character evidence turns on the distinction in this sentence: "West Virginia Rules of Evidence provides: Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes, (a) Character Evidence Generally." Do not lift it out of the facts the court was deciding.
STATE of West Virginia, Plaintiff Below, Appellee, v. Gloria Jean WILLETT, Defendant Below, Appel — Ketchum, J
…ubsection of the Federal Rules.”); Kenneth J. Melilli, “The Character Evidence Rule Revisited,” 1998 B.Y.U.L.Rev. 1547, 1556 (1998) ("The practical impact of Rule 404(b) must be understood not only in the proportion of cases in which these issues are resolved, but also in the quantity of such cases in which these issues materialize. Rule 404(b) accounts for a greater number of…
STATE of West Virginia, Plaintiff Below, Appellee, v. Gloria Jean WILLETT, Defendant Below, Appel — Ketchum, J is worth reading on West Virginia character evidence because the court put the point in its own words: "Federal Rules.”); Kenneth J. Melilli, “The Character Evidence Rule Revisited,” 1998 B.Y.U.L.Rev." Use that passage as the starting point, then read the facts that precede it.
STATE of West Virginia, Plaintiff Below, Appellee, v. Ronzel RICHARDS, Defendant Below, Appellant
…used. Specifically, Rule 404(a) provides, in relevant part: Character Evidence Generally. — Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: (1) Character of the Accused — Evidence of a pertinent trait of his character offered by an accused, or by the…
STATE of West Virginia, Plaintiff Below, Appellee, v. Ronzel RICHARDS, Defendant Below, Appellant is worth reading on West Virginia character evidence because the court put the point in its own words: "Specifically, Rule 404(a) provides, in relevant part: Character Evidence Generally." Use that passage as the starting point, then read the facts that precede it.
STATE of West Virginia, Plaintiff Below, Respondent v. Charles Edward BRUFFEY, Defendant Below, — Benjamin, J
…exceptions to the improper use by the State of Rule 404(b)1 character evidence as to render the protections of Rule 404(b) a nullity. Convictions may now occur not because the State must prove its case with positive proof, but because non-specific similarities between occurrences may be introduced to predispose a jury to convict based on character evidence rather than proper, a…
Practitioners open STATE of West Virginia, Plaintiff Below, Respondent v. Charles Edward BRUFFEY, Defendant Below, — Benjamin, J when West Virginia character evidence turns on the distinction in this sentence: "State of Rule 404(b)1 character evidence as to render the protections of Rule 404(b) a nullity." Do not lift it out of the facts the court was deciding.
Frequently asked questions
What is the primary evidence source in West Virginia?
West Virginia applies the West Virginia Rules of Evidence. West Virginia's rules follow the FRE; W. Va. R. Evid. 401–902 govern circuit court trials statewide.
How do West Virginia courts decide relevance and unfair prejudice?
Under W. Va. R. Evid. 401, 403, evidence must make a fact of consequence more or less probable, and the court may exclude relevant evidence when unfair prejudice, confusion, or waste of time substantially outweighs its probative value.
Are party admissions hearsay in West Virginia?
Party-opponent statements under W. Va. R. Evid. 801(d)(2) are generally excluded from the hearsay ban (or treated as an exception, depending on local drafting). They may be offered against the party who made or adopted them without showing unavailability.
What foundation is required for business records?
Under W. Va. R. Evid. 803(6), show a record made at or near the time from someone with knowledge, kept in the course of a regularly conducted activity, as a regular practice, through a custodian, qualified witness, or allowed certification — subject to trustworthiness attack.
When can I use a deposition at trial in West Virginia?
W. Va. R. Civ. P. 32 governs civil deposition use at trial. W. Va. R. Crim. P. 16 addresses criminal discovery; prior testimony may be admitted under W. Va. R. Evid. 804(b)(1).
Why is authenticity separate from hearsay?
Authenticity asks whether the item is what you claim it is; hearsay asks whether out-of-court assertions inside it may be used for their truth. You can lose on either ground independently. West Virginia authenticity practice starts with W. Va. R. Evid. 901, 902.
Where do dying declarations and medical statements fit?
Dying declarations under W. Va. R. Evid. 804(b)(2) require belief in impending death and concern the cause or circumstances of that believed death. Medical statements under W. Va. R. Evid. 803(4) require a genuine diagnostic or treatment purpose and reasonable pertinence to care.