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Rule 5.1 – Preliminary examination

May 14, 2021 | Criminal Procedure, West Virginia

(a)Probable Cause Finding. – If from the evidence it appears that there is probable cause to believe that an offense has been committed and that the defendant committed it, the magistrate shall forthwith hold the defendant to answer in circuit court. The state shall be represented by the prosecuting attorney at the preliminary examination. Witnesses shall be examined and evidence introduced for the state under the rules of evidence prevailing in criminal trials generally, except that hearsay evidence may be received, if there is a substantial basis for believing:

(1) That the source of the hearsay is credible;
(2) That there is a factual basis for the information furnished; and
(3) That it would impose an unreasonable burden on one of the parties or on a witness to require that the primary source of the evidence be produced at the hearing. The defendant may cross-examine adverse witnesses and may introduce evidence. Objections to evidence on the ground that it was acquired by unlawful means are not properly made at the preliminary examination. Motions to suppress must be made to the trial court as provided in Rule 12. On motion of either the state or the defendant, witnesses shall be separated and not permitted in the hearing room except when called to testify.
(b) Discharge of Defendant. – If from the evidence it appears that there is no probable cause to believe that an offense has been committed or that the defendant committed it, the magistrate shall dismiss the complaint and discharge the defendant. The discharge of the defendant shall not preclude the state from instituting a subsequent prosecution for the same offense.
(c) Records. –

(1) A magistrate shall record electronically every preliminary examination conducted. If by reason of unavoidable cause it is impossible to record all or part of a preliminary examination electronically, a magistrate may proceed with the hearing but shall make a written record of the failure to do so and of the cause thereof.

A magnetic tape or other electronic recording medium on which a preliminary examination is recorded shall be indexed and securely preserved by the magistrate court clerk or, as assigned by the clerk, by the magistrate assistant.

For evidentiary purposes, a duplicate of such electronic recording prepared by the clerk of the magistrate or of the circuit court shall be a “writing” or”recording” as those terms are defined in Rule 1001 of the West Virginia Rules of Evidence, and unless the duplicate is shown not to reflect the contents accurately, it shall be treated as an original in the same manner that data stored in a computer or similar data is regarded as an “original” under such rule.

When requested by the state, the defendant, or any interested person, the clerk of the magistrate or of the circuit court shall provide a duplicate copy of the tape or other electronic recording medium of any preliminary examination held. Any defendant requesting the copy who has not been permitted to proceed with appointed counsel, any prosecutor who does not supply a blank tape, and any other person shall pay to the magistrate court an amount equal to the actual cost of the tape or other medium or the sum of five dollars, whichever is greater.

Preparation of a transcript of the record or any designated portions thereof shall be the responsibility of the party desiring such transcript.

(2) If probable cause is found at the conclusion of a preliminary examination in magistrate court:

(i) the magistrate clerk shall transmit to the prosecuting attorney a copy of the criminal case history sheet;
(ii) when the proceeding is recorded electronically, the magistrate clerk shall transmit forthwith to the clerk of the circuit court all papers and electronic records of the proceeding; if for unavoidable cause the proceeding or part thereof has not been recorded electronically, the magistrate shall promptly make or cause to be made a summary written record of the proceeding, and the magistrate clerk shall transmit forthwith to the clerk of the circuit court such record and all other papers of the proceeding. Once the records of the proceeding are transmitted to the clerk of the circuit court, the felony charge shall remain within the sole jurisdiction of the circuit court and shall not be remanded to the magistrate for any purpose.
(d) Juvenile Preliminary Hearings. –

(1) Except for section (c)(2), the provisions of this rule shall apply to hearings conducted pursuant to Chapter 49, Article 5, Section 9, of the West Virginia Code of 1931, as amended. Certain terms used in this rule shall be read for the purposes of this subdivision as follows: magistrate shall mean juvenile referee or circuit judge; defendant shall mean juvenile respondent; offense shall mean delinquent act. The clerk of the circuit court may provide a copy of the tape or other electronic recording medium only as permitted by Chapter 49, Article 5, Section 17 or by Chapter 49, Article 7, Section 1 of the West Virginia Code of 1931, as amended.
(2) At the conclusion of a juvenile preliminary hearing when the proceeding is recorded electronically, the referee or judge shall transmit forthwith to the clerk of the circuit court all papers and electronic records of the proceeding; if for unavoidable cause the proceeding or part thereof has not been recorded electronically, the referee or judge shall promptly make or cause to be made a summary written record of the proceeding, and shall transmit forthwith to the clerk of the circuit court such record and all other papers of the proceeding.

W.Va. R. Crim. P. 5.1

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