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W. Va. Rules of Evidence Revised


An effective trial attorney has a thorough knowledge of the Rules of Evidence.  At The Moore Law Firm, our attorneys know the evidence and keep up to date with developments and changes in the law.

New changes to the West Virginia Rules of Evidence went into effect on September 2, 2014.  The West Virginia Rules of Evidence were adopted by the West Virginia Supreme Court of Appeals on December 18, 1984, and have not undergone a comprehensive review in almost 30 years.  Recently, the West Virginia Supreme Court of Appeals appointed a committee to undertake a comprehensive review of the Rules and make recommendations on whether the Rules should be updated.

Many of the Rules of Evidence were changed to reflect the language contained in the Federal counterpart.  Most changes are merely stylistic and do not differ substantively from the old Rules.  The intent of the changes is to make the Rules more easily understood.

Rule 404(b) was modified to reflect the requirement of State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994).  Evidence of another crime, wrong, or act is not admissible to prove a person acted in conformity therewith.  Such evidence is admissible for other purposes, such as showing motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.  Under the revised version of Rule 404(b), all parties, not just the prosecution in a criminal case, must provide the adverse party with reasonable notice of its intent to use 404(b) evidence at trial.  This will have major changes in civil action matters where evidence of other crimes, wrongs, or acts are sought to be introduced at trial.

Language was added to Rule 408 that prohibits the use of compromise offers and negotiations for impeachment purposes.  A statement made during a plea negotiation or a settlement negotiation cannot be used at trial to impeach the person making an inconsistent or contradictory statement.  This protects negotiation and settlement conversations.

It has been a long-standing rule that evidence that a party has liability insurance is not admissible at trial.  However, the revisions to Rule 411 make clear that evidence of liability insurance may be admissible if an opposing party presents evidence of the inability to pay or places the party’s financial status at issue in a trial.

Rule 804(b)(5) was changed to reflect the recent decision of State Farm Fire & Cas. Co. v. Printz, 231 W. Va. 96, 743 S.E.2d 907 (2013), which invalidated the “Dead Man’s Statute.”  Previously, the statement of a deceased person was not admissible at trial.  Under the new Rule, in cases by or against a representative of a deceased person, a statement by a deceased person is not excluded as hearsay if the statement was 1) made by the decedent, 2) in good faith and on the decedent’s personal knowledge, and 3) under circumstances that indicate it was trustworthy.