Neely, J., concurring:
This case is like a single log floating upstream that
neither notes nor considers the rush of other logs in downriver
traffic. Although I agree that this log-- case -- is properly
headed, I pause to consider the downriver traffic.
The majority holds, and I agree, that audiotapes surreptitiously recorded by one spouse in the house of the other estranged spouse are inadmissible under W. Va. Code 62-1D-3(a)(1) ; however, the majority fails to see or consider the conflict between W. Va. Rules of Evid. and W. Va. Code 62-1D-3(a) . (See footnote 1)
First, under the Rules of Evid. these audiotapes are admissible. Rule 402 states that "[a]ll relevant evidence is admissible." Relevant evidence is defined by Rule 401 to mean "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." In this case, the audiotapes are of Jill L.'s conversations with
her children. These conversations show facts that are "of
consequence to the determination of" the question of Jill L.'s
alleged abuse of her children. Thus under Rule 402 the audiotapes
Second, by using the reasoning of Gilman v. Choi, 185 W.
Va. 177, 406 S.E.2d 200 (1990)(refusing to recognize the conflict
between W. Va. Code 55-7B-7  and Rule 702, W. Va. Rules of
Evid.) and Teter v. Old Colony Co., 190 W. Va. 711, 441 S.E.2d 728
(1994) (W. Va. Rules of Evid., Rule 702 prevails over W. Va. Code
37-14-3(a)'s license or certification requirement for real estate
appraisers), the Court could have used the Rules to invalidate the
specific statute. Indeed in this case the reasoning of Gilman and
Teter requires the Court to ignore the legislature's prohibition
against wiretapping-- a mere section of the Code -- to cite to this
Court's rule-making authority as set forth in Syllabus Points 1 and 2 of Bennett v. Warner, 179 W. Va. 742, 372 S.E.2d 920 (1988)
(See footnote 2) and
to admit the audiotapes.
Today's opinion ignores the conflict between "procedural"
and "substantive" mechanisms and circuit courts are left without
guidance concerning when to follow a restrictive statute or the
more liberal W. Va. Rules of Evid. As stated in my dissent in
Gilman 185 at 190, 406 S.E.2d at 213, this Court should not use
court-promulgated rules "to foreclose the use of tools such as
modifications of the law of evidence traditionally thought to be
available to legislatures." See Reed v. Phillips, ___ W. Va. ___,
____, ____ S.E.2d ___, ____ (No. 22196 Filed December 8,
1994)(Neely, J. dissenting)(judicial branch should not use
"precious reasoning. . .[to] confound . . .[a] legitimate political
I concur in the direction of this log but pause to wonder
at what the majority does not see or discuss.
1. Under article eight, section three of our
Constitution, the Supreme Court of Appeals
shall have the power to promulgate rules for
all of the courts of the State related to
process, practice, and procedure, which shall
have the force and effect of law.
2. "Under Article VIII, Section 8 [and Section 3] of the Constitution of West Virginia (commonly known as the Judicial Reorganization Amendment), administrative rules promulgated by the Supreme Court of Appeals of West Virginia have the force and effect of statutory law and operate to supersede any law that is in conflict with them." Syl.Pt. 1, Stern Brothers, Inc. v. McClure, 160 W.Va. 567, 236 S.E.2d 222 (1977).