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Trial Court Rules | Chapter 3: Criminal Matters, Rules 30-44

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Table of Contents Full Table of Contents
  1. Conditions of Release
  2. Bonding Agents and Bail Bonds
  3. Discovering and Inspection in the Circuit Courts
  4. Articles of Evidence
  5. Depositions
  6. Public Funding for Expert Assistance
  7. Motions Practice, Criminal
  8. Speedy Trial
  9. Continuances
  10. Guardians Ad Litem
  11. Pretrial Conference
  12. Changes to Plea
  13. Trial, Criminal
  14. Pre-Sentence Investigation and Report
  15. Petition for Disclosure of Pre-Sentence or Probation

Chapter 3: Criminal Matters

Conditions of Release
Hearing on Motion for Reconsideration of Conditions of Release

All motions seeking a reconsideration of the conditions of release, including the amount of bail, shall be heard by the presiding judicial officer in accordance with W.Va. R.Crim.P. 46(h)(1).

Scheduling of Hearings

Hearings will be scheduled consistent with giving notice to any victim as required by W.Va. Code § 61-11A-8 and in conformance with W.Va. R.Crim.P. 46(h).

Effect of Having Been Released Previous to Indictment

If the defendant has been released on bond or on some other release conditions before grand jury indictment, these same release conditions shall continue after a grand jury indictment on the same charges or any charges arising out of the same events, unless altered or amended by order of the presiding judicial officer after hearing.

Rule 31. Bonding Agents and Bail Bonds

Reporter's Note: TCR 31.01 applies in magistrate court as well as in circuit court.

Generally

A defendant in a criminal case may be admitted to bail in the following ways:

  1. Bail may be posted by the defendant or some other person depositing cash with the circuit clerk or magistrate court clerk; or
  2. Bail may be posted by a recognizance issued pursuant to West Virginia Code §§ 62-1C- 2(b) and 62-1C-4. A recognizance shall be issued in conformance with the following:
    1. The defendant shall sign the recognizance, and it shall also by signed by one or more adult persons owning real property in this State. The judicial officer may also require that justification of surety be provided. When bail is secured by real property:
      1. The circuit clerk or magistrate court clerk shall complete and file a "notice of Bond Encumbrance," which notice shall substantially comply with the format of Appendix A to these Trial Court Rules, and shall deliver the same to the clerk of the county commission of the county where the subject real estate is located for recordation in the appropriate lien index; and
      2. Upon the circuit or magistrate court's release of the bond on the property serving as surety, the clerk shall file promptly a "Release of the Notice of Bond Encumbrance" with the office of the clerk of the county commission for appropriate recordation. Said release shall substantially comply with the format of Appendix B to these Trial Court Rules. Or
    2. The defendant shall sign the recognizance, and the amount of bail shall be secured by a surety company authorized to do business in this State; or
  3. Bail may be secured in such other form as the judicial officer may determine, including, but not limited to:
    1. Releasing the defendant upon his or her own recognizance pursuant to West Virginia Code § 62-1C-1a; or
    2. In the discretion of the judicial officer, the defendant shall sign the recognizance, with or without surety, and remit a fee of 10% of the bail amount to the circuit clerk or magistrate court clerk. The fee shall be refunded if the defendant meets the conditions of the recognizance. If the defendant does not meet the conditions of the recognizance, the fee shall be remitted to the State Auditor, in the same manner as a bond forfeiture default.
  4. No attorney shall sign as surety on any bond in any criminal case.
  5. Persons authorized to engage in the bonding business in criminal cases in the State of West Virginia on the effective date of House Bill 4148, passed March 13, 2004, shall continue to engage in the business under the local rules and orders under which such person qualified pursuant to the existing provisions of W. Va. Code § 51-10-8. The authority to continue in the bonding business shall continue until such time as the West Virginia Supreme Court of Appeals adopts rules pursuant to the amendments made to W. Va. Code § 51-10-8 by House Bill 4148. Persons intending to make a new application for such qualification shall be entitled to proceed to do so under rules and orders promulgated prior to September 1, 2004 providing therefore, until such time as the West Virginia Supreme Court of Appeals adopts rules pursuant to the amendments made to W. Va. Code § 51-10-8 by House Bill 4148.
Rule 32. Discovery and Inspection in the Circuit Courts
Generally

The purposes of this rule are to expedite the transfer of discoverable material contemplated by the West Virginia Rules of Criminal Procedure between opposing parties in criminal cases in circuit court and to ensure that pretrial discovery motions to the circuit court are filed only when the discovery procedures outlined herein have failed to result in the exchange of all legitimately discoverable material.

It is the intent of this rule to encourage complete and open discovery consistent with applicable statutes, case law, and rules of court at the earliest practicable time. Nothing in this rule should be construed as a limitation on the court's authority to order additional discovery.

Mandatory Discovery
  1. Exculpatory Evidence. — In all criminal cases, the attorney for the State shall advise the attorney for the defendant and provide evidence favorable to the defendant on the issue of the defendant's guilt or punishment without regard to materiality, within the scope of Brady v. Maryland, 373 U.S. 83 (1963), including the existence and substance of any payments, promises of immunity, leniency, preferential treatment, or other inducements made to prospective witnesses, within the scope of United States v. Giglio, 405 U.S. 150 (1972).
  2. Entrapment Defenses and the Discovery of Other Crimes, Wrongs, or Acts Admissible Pursuant to W.Va. R.Evid 404(b). — In all criminal cases, the attorney for the State shall advise the defendant of its intention to introduce evidence in its case-in-chief at trial pursuant to W.Va. R.Evid. 404(b). In addition to the requirements of Rule 404(b), if, during the discovery conference or thereafter, the attorney for the defendant advises the attorney for the State that the defense is one of entrapment and provides a synopsis of the evidence of that defense, the attorney for the State shall, within five (5) days or two (2) weeks prior to trial, whichever is later, disclose a synopsis of any other crimes, wrongs, or acts about which the State has information and which is relevant to said defense and intended for use by the State in its case in chief or in rebuttal.
Discovery Conference

At every arraignment at which the defendant enters a plea of not guilty or at any other time set by the court, the attorney for the defendant shall notify the court and the attorney for the State, on the record or thereafter in writing, whether discovery by the defendant is requested. If discovery is requested, within fourteen (14) days the attorney for the defendant and the attorney for the State shall confer in order to comply with W.Va. R.Crim.P. 16, and make available to the opposing party the items in their custody or control or which by due diligence may become known to them. This conference shall be in person. If, however, it is impractical to meet in person, the conference may be conducted via telephone.

The State's right to request discovery from a defendant is triggered only if the defendant initially seeks discovery, and is confined to the particular area in which the defendant has sought discovery. Additionally, the State must have complied with the defendant's initial request before it can request discovery.

  1. Discovery from the State. Unless otherwise limited by the defendant, upon request by counsel for the defendant and at the discovery conference, the attorney for the State shall comply with the State's obligations under W.Va. R.Crim.P. 16, including, but not limited to, the following:
    1. permit defendant's attorney to inspect and copy or photograph any relevant written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody, or control of the government;
    2. with respect to oral statements made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a State or government agent:
      1. provide that portion of any written record containing the substance of any such relevant oral statement made by the defendant; and
      2. provide the substance of any other such relevant oral statement made by the defendant which the State intends to offer in evidence at the trial;
    3. furnish to the defendant's attorney a copy of his or her prior criminal record as provided for in W.Va. R. Crim. P. 16(a)(B);
    4. permit the defendant's attorney to inspect and copy documents and tangible objects as provided for in W.Va. R. Crim. P. 16(a)(1)(C);
    5. permit the defendant's attorney to inspect and copy or photograph any results or reports of examinations and tests as provided for in W.Va. R. Crim. P. 16(a)(1)(D);
    6. permit defendant's attorney to inspect and copy or photograph any photographs used in any photograph lineup, show up, photo spread, or any other identification proceedings or, if no such photographs can be produced, the attorney for the state shall notify the defendant's attorney whether any such identification proceeding has taken place and the results thereof;
    7. permit defendant's attorney to inspect and copy or photograph any search warrants and supporting affidavits which resulted in the seizure of evidence which is intended for use by the State as evidence in its case in chief at trial or which was obtained from, or belongs to, the defendant;
    8. inform the defendant's attorney whether any physical evidence intended to be offered in the State's case in chief, that was in the possession of or belongs to the defendant, was seized by the State without a warrant;
    9. advise whether the defendant was a subject of any electronic eavesdrop, wiretap, or any other interception of wire or oral communications, as defined by W.Va. Code §§ 62-1D-1 et seq., during the course of the investigation of the case;
    10. provide the defendant's attorney with a list of the names and addresses of all State witnesses, together with any record of prior convictions of any such witnesses as provided for in W.Va. R. Crim. P. 16(a)(1)(F);
    11. disclose to the defendant's attorney all information relating to expert witnesses for the State as provided for in W.Va. R. Crim. P. 16(a)(1)(E);
    12. permit the attorney for the defendant and any expert selected by the defense to inspect any vehicle, vessel, or aircraft that was allegedly utilized in the commission of any offenses charged if said vehicle, vessel or aircraft is in the custody of any State authority; and
    13. provide to the attorney for the defendant any copies of latent fingerprints, or prints of any type, that have been identified by a State expert as those of the defendant.
  2. Discovery from Defendant. Upon request by the State and within ten (10) days after the State has provided the discovery requested by the defense, unless otherwise directed by the court, the defendant's attorney shall:
    1. permit the attorney for the State to inspect and copy documents and tangible objects as provided for in W.Va. R. Crim. P. 16(b)(1)(A);
    2. permit the attorney for the State to inspect and copy or photograph any results or reports of examinations and tests as provided for in W.Va. R. Crim. P. 16(b)(1)(B);
    3. inform the attorney for the State, in writing, if requested, notice of any alibi defense and other information pertaining thereto as provided for in W.Va. R. Crim.P. 12.1;
    4. provide the attorney for the State, in writing, with notice of any insanity defense and other information pertaining thereto as provided for in W.Va. R. Crim. P. 12.1;
    5. provide the attorney for the State a list of the names and addresses of the witnesses whom the defense intends to call as provided for in W.Va. R. Cri. P. 16(b)(1)(D); and
    6. disclose to the attorney for the State all information relating to expert witnesses for the defendant as provided for in W.Va. R. Crim. P. 16(b)(1)(C).
Items Not Subject to Disclosure
  1. Except as expressly provided by these rules, these rules do 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 by prospective State witnesses, except as provided in Rule 26.2.
  2. Except as to scientific or medical reports, this rule 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 the state or defense witnesses, or by prospective State or defense witnesses, to the defendant, the defendant's agent or attorneys, except as provided in Rule 26.2.
Continuing Duty to Disclose

If, prior to or during trial, any 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 as provided for in W.Va. R. Crim. P. 16(c).

Regulation of Discovery
  1. 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. 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.
Statement of Witnesses

Statements of witnesses, including material covered by W.Va. R.Crim.P. 26.2, are to be exchanged:

  1. during the time of trial as provided by W.Va. R.Crim.P. 26.2 or
  2. at any time if the parties agree or the court so orders for good cause shown.

Production of statements of witnesses at a hearing on a motion to suppress evidence will be governed by W.Va. R.Crim.P 12(i).

The attorney for the State shall anticipate the need for and arrange for the transcription of the grand jury testimony of all witnesses who will testify in the State's case in chief, if subject to W.Va. R.Crim.P. 26.2. The State and, where applicable, the defendant shall make such materials and statements available to the other party sufficiently in advance as to avoid any delays and interruptions at trial.

Exchange of Exhibit Lists

No later than seven (7) days before trial, the parties shall exchange a list of exhibits which they intend to introduce during the presentation of their respective cases in chief. To the extent possible, copies of exhibits shall also be provided to the opposing side, if copies have not previously been provided.

Additional Motions for Discovery

Except as provided in TCR 32.02, no attorney shall file a discovery motion without first conferring with opposing counsel, and no motion will be considered by the court unless it is accompanied by a certification of such conference and a statement of the moving party's good faith efforts to resolve the subject matter of the motion by agreement with opposing counsel. No additional discovery motions shall be filed for information or material within the scope of this rule unless it is a motion to compel, a motion for protective order, or a motion for an order modifying discovery.

Unless the judicial officer otherwise directs, in lieu of filing the TCR 32.02 material, proof of service on the party to whom the material is directed shall be made by certification of counsel responsible for the case, which certification shall include the name and case number of the case to which it relates, be filed with the clerk of the circuit court, and meet the following minimum requirements for identifying the specific material, provided:

  1. The attorney for the State shall certify that material within the possession or control of the State required by this rule has been provided and identify the categories of material by specific reference to TCR 32.01 and its subparts and TCR 32.02, 32.03, 32.04, 32.05, 32.06, 32.07, 32.08, and 32.09, setting out the number of pages of material so provided as to each said rule.
  2. The attorney for the defendant shall have the same duty as the attorney for the State to certify that material within the possession or control of defendant or his or her counsel required by this rule has been so provided and identify the categories of material by specific references to the applicable rule.
Rule 33. Articles of Evidence
State's Evidence

If evidence is to be made available by the State for copying or inspection, the attorney for the State shall be responsible for making said evidence available to counsel for the defendant.

Rule 34. Depositions
Authorization for Deposition

A motion to authorize a deposition pursuant to W.Va. R.Crim.P. 15 shall, in addition to any other requirements of the Rules of Criminal Procedure, show that counsel for the moving party has personally requested a stipulated order from opposing counsel, which request was refused.

Incarcerated Defendants

When the defendant is incarcerated in jail and does not waive the right to appear, the deposition of a witness shall be noticed and held either at the jail or within the courthouse, or other arrangements shall be made to ensure that the defendant is present.

Rule 35. Public Funding for Expert Assistance
Motion
  1. Who May File. With respect to expert witnesses appointed or approved by the court in accordance with W.Va. R.Crim.P. 28(a) or W.Va. R.Evid. 706(a), the attorney for the State or the attorney for a defendant found indigent or who claims to be without sufficient means to employ an expert necessary for the defense may file a motion requesting the court's advance approval, which is required, for funds to obtain such assistance.
  2. Grounds of Motion. The motion shall state the reasons why the assistance is necessary for an adequate presentation of the case or defense. It may be supported by affidavit.
Service of Motion

Except as provided in TCR 35.03, the motion shall be served upon counsel for the opposing party.

Ex Parte Motion

An ex parte motion shall state with particularity the reasons why it should not be served on the attorney for the opposing party. It shall be presented to the clerk of court, who shall present it to the court. It shall be sealed and shall not be docketed, unless so ordered by the court.

Judicial Determination of Whether to Proceed Ex Parte

The court shall determine whether the motion demonstrates good cause to proceed ex parte. If the court finds good cause, it shall then decide the merits of the motion, give the attorney for the opposing party such notice of its order as it deems proper and order the appropriate docket entry. If the court does not find good cause to proceed ex parte, it shall order the motion docketed and served.

Compensation of Experts

The court shall by order establish and approve in advance the reasonable fees and expenses to be paid to an expert. Except as to evaluations pursuant to W.Va. Code §§ 27-6A-1(a)-(e) and 62-12-2(e), the expense of which the court shall, by order, direct payment by the State Department of Health and Human Resources, payment shall be as follows:

  1. Expert Requested by the State. Upon completion of services by such expert, the county prosecuting attorney's office shall pay for the expert's evaluation, report-writing, consultation, or other preparation. The court shall, by order, direct payment by the Supreme Court's Administrative Office for the expert's fee and expenses entailed in appearing to testify as a witness.
  2. Expert Requested by an Indigent Defendant. Upon completion of services by such expert, the court shall, by order, direct payment by Public Defender Services pursuant to W.Va. Code, Chapter 29.
  3. Expert Appointed by the Court on Its Own Motion for the Court's Assistance. Upon completion of services by such expert, the court shall, by order, direct payment by the Supreme Court's Administrative Office.
Rule 36. Motions Practice, Criminal
Motions, Responses, and Supporting Memoranda

All motions and responses shall be concise; shall state the relief requested precisely; and may be accompanied by a supporting memorandum of not more than twenty (20) pages in length, double-spaced, and by copies of documents, affidavits, and other such materials upon which the motion relies. The court for good cause shown may allow a supporting memorandum to exceed twenty (20) pages. In addition to filing and serving on opposing counsel, counsel shall deliver to the assigned judge copies of each motion, response, supporting memorandum, and supporting documents or materials.

Motions for an Extension of Time

Extensions of time in criminal actions will be granted only if the party seeking the extension files a motion and affidavit demonstrating good cause. Extensions of time by agreement of the parties are not valid in criminal cases.

Time for Filing Motions

Unless a different time is fixed by statute or the West Virginia Rules of Criminal Procedure, motions must be filed within the time period ordered by the court.

Time for Filing Response and Replies
  1. Response. Unless otherwise ordered, a response and any opposing memorandum must be filed within eleven (11) days of service of any motion, except a motion for an extension of time. A memorandum opposing a motion for an extension of time must be filed within five (5) days of service of the motion.
  2. Reply. Except as to motions for an extension of time, a party may choose to file a reply memorandum. A reply memorandum must be limited to matters newly raised in the opposing memorandum. If a party chooses to file a reply, the memorandum must be filed within eleven (11) days of service of the opposing memorandum, unless otherwise ordered by the court.
Limitation on Memoranda

Memoranda pertaining to motions are limited to a supporting memorandum, an opposing memorandum, and a reply memorandum. Supporting and opposing memoranda must not exceed twenty (20) pages without leave of court. Reply memoranda must not exceed ten (10) pages without leave of court.

Rule 37. Speedy Trial
Authority

The West Virginia Constitution, the West Virginia Rules of Criminal Procedure, and the applicable West Virginia statutes govern all rights to a speedy trial.

Motion for Speedy Trial

All demands for speedy trial, unless otherwise stated in open court, shall be made in writing as a separate document, containing proper case caption and case number, signed and dated by counsel. A copy of the demand shall be timely served on the attorney for the State and shall be filed with the clerk of court, together with proof of service.

Rule 38. Continuances
Procedure for Obtaining Continuance

Cases may not be continued by agreement or stipulation and may be continued only by leave of court. After a case has been set for trial it will not be continued except for good cause which shall be brought to the attention of the court as soon as practicable before the date of the trial.

Rule 39. Guardians Ad Litem
Appointment

For good cause and upon the court's own motion or that of a party, the court may appoint an attorney as guardian ad litem for a witness or an alleged victim. The Court shall select any guardian ad litem independently of any nomination by the State or by the defendant.

Duties

A guardian ad litem shall have such standing and such duties in representing the best interests of a witness or an alleged victim as the court directs of record.

Compensation

Rule 21.06 of these Rules shall govern compensation for Supreme Court-paid guardians ad litem.

Rule 40. Pretrial Conference
Authority

In accordance with this rule and W.Va. R.Crim.P. 17.1, the court may require a pretrial conference in criminal cases.

Purpose

The purposes of a pretrial conference shall include, but not be limited to:

  1. to determine whether the parties intend to proceed to trial or to enter a plea to the original charge, a lesser charge, or an added charge;
  2. to determine whether pretrial motions have been completed;
  3. to stipulate which witnesses may be called at trial and which witnesses may be waived, if any;
  4. to determine the number of trial days required; and
  5. to determine when the case will be ready for trial and disclose any scheduling problems.
Attendance and Participation at the Pretrial Conference

The defendant and his or her attorney, as well as the attorney for the State, shall attend the pretrial conference.

Rule 41. Changes to Plea
Notice of Change of Plea Hearing

When a change of plea has been negotiated by the parties to a criminal case, counsel will advise the court promptly. The court will set a change of plea date at the earliest possible time. For speedy trial purposes, absent a finding by the court of extraordinary circumstances, the parties to any plea agreement shall be deemed to have stipulated to a tolling of the speedy trial time.

Rule 42. Trial, Criminal
Presentation of Statement of Facts and Potential Witnesses

Prior to jury selection, unless otherwise ordered, the prosecutor and counsel for the defense shall each prepare and present to the court and to opposing counsel a statement of facts for the case being tried, which shall include the names of potential witnesses each may call during trial, including the place of residence or the municipal entity, if any, in which they live.

Presentation of Jury Instructions

Each counsel shall prepare jury instructions, indicating citations and authorities, and if the court directs, verdict forms and special interrogatories, and present them to the presiding judicial officer and serve them on opposing counsel not less than three (3) business days before the day set for trial or at such other times as the presiding judicial officer may order.

Voir Dire
  1. The attorneys conducting the case shall be permitted to ask voir dire questions of the prospective jury panel members unless the presiding judicial officer finds that there are justifiable reasons to deny such attorney voir dire. The attorneys shall advise the judicial officer of the subject matter of the voir dire questions at such time prior to the actual questioning of the prospective jury panel as the judicial officer may designate. The judicial officer may allow individual voir dire by the attorneys upon a showing of good cause or where questioning such juror in open court in the presence of the other jury panel members would be prejudicial or cause undue embarrassment to the prospective juror.
  2. If attorney-conducted voir dire is not permitted, the attorneys conducting the case may request that the judicial officer ask specific additional or supplemental voir dire questions of the prospective jury members.
  3. Attorneys may lodge objections to the exercise of judicial discretion in limiting voir dire or to prospective questions at any time prior to and during the examination of prospective jury members. Objections shall be made on the record.
Opening Statements and Closing Arguments
  1. Opening Statements. At the commencement of trial in a criminal action, the State and the defendant may make non-argumentative opening statements as to their theories of the case and the manner in which they expect to offer their evidence. If the trial is to a jury, unless the court directs otherwise the opening statements shall be made immediately after the jury is impaneled. If the trial is to the court, the opening statements shall be made immediately after the case is called for trial. The court, on request by the defendant, may defer the opening statement for a defendant until the time for commencing presentation of that defendant's direct evidence. Opening statements shall be subject to time limitations imposed by the court. If the action involves more than one defendant, the court after conferring with the parties to the action, shall determine the order and time of the opening statements.
  2. Closing Arguments. Counsel may refer to the instructions to juries in their argument, but may not argue against the correctness of any instruction. The court in its discretion may reread one or more of the instructions. Counsel may not comment upon any evidence ruled out, nor misquote the evidence, nor make statements of fact dehors the record, nor contend before the jury for any theory of the case that has been overruled. Counsel shall not be interrupted in argument by opposing counsel, except as may be necessary to bring to the court's attention objection to any statement to the jury made by opposing counsel and to obtain a ruling on such objection. No portion of a lawbook shall be read to the jury by counsel.

The time of argument in any case may be determined and regulated by the court, but the convenience of counsel will be consulted. No more than two attorneys on each side shall argue the case, without leave of the court.

Stipulations

Unless otherwise ordered, stipulations must be in writing, signed by the parties making them or their counsel, and promptly filed with the clerk.

Rule 43. Presentence Investigation and Report
Investigation, Report, and Objections
  1. In all cases where a presentence investigation report is prepared pursuant to W.Va. R.Crim.P. 32 and W.Va. Code § 62-12-7 or where the report is otherwise ordered by the court, the probation officer shall disclose the presentence investigation report to the defendant and to counsel for the defendant and to the attorney for the State not less than ten (10) calendar days prior to sentencing. Within five (5) calendar days thereafter, the parties by counsel shall communicate to the probation officer any objections they may have as to material information, any fact that was either not included or was stated erroneously, or as to the law, or sentencing alternatives and classifications. The communication shall be in writing with a copy served upon opposing counsel or an unrepresented defendant contemporaneously with service upon the probation officer.
  2. After receiving objections, the probation officer may conduct further investigation and make revisions to the presentence report that may be necessary. The officer may require counsel to meet with the officer to discuss unresolved factual and legal issues. Not less than three (3) calendar days prior to sentencing, the probation officer shall submit the presentence report to the sentencing judge. The report shall be accompanied by an addendum setting forth objections that have not been resolved, together with the officer's comments and recommendations. The probation officer shall certify that the contents of the report, including revisions and the addendum, have been disclosed to the defendant and to counsel for the defendant and the State, and that the addendum fairly states any remaining objections.
  3. With the exception of an objection under subsection (a) that has not been resolved, the presentence investigation report may be accepted by the court as accurate. For good cause, however, the court may allow additional objections to be raised at any time before the imposition of sentence. In resolving disputed issues of fact, the court may consider relevant information without regard to its admissibility under the rules of evidence, provided it otherwise has sufficient indicia of reliability.
Disclosure
  1. The time requirements of this rule may be modified by the court for good cause, except that the ten (10)-day period in TCR 44.01(a) may not be reduced to a period of less than five (5) days prior to sentencing without the consent of the defendant.
  2. Nothing in this rule requires the disclosure of any portions of the presentence report that may not be disclosed under W.Va. R.Cr.P. 32. Subject to the limitations in W.Va. R.Cr.P. 32(c)(3)(A) and (B), upon request of counsel, the probation officer shall provide to counsel all underlying public record information pertaining to the defendant that was gathered by documents obtained and used in the preparation of the presentence report.
  3. The presentence report shall be deemed to have been disclosed (1) when a copy of the report is physically delivered to counsel or (2) three (3) days after a copy of the report is mailed to counsel. When the defendant is unrepresented or is represented by standby counsel, delivery or mailing shall be made to the defendant.
Petition for Disclosure of Presentence or Probation Records
Generally
  1. Except as provided in TCR 43.02, no confidential records of the court maintained by the probation office, including presentence and probation supervision records, shall be producible except by written petition to the court particularizing the need for specific information.
  2. When a demand for disclosure of presentence and probation records is made by way of subpoena or other judicial process to a probation officer, the probation officer may petition in writing seeking instructions from the court regarding a response to the subpoena.
  3. No disclosure shall be made except upon order of the court.

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