(a)Motion for production. – After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and the defendant’s attorney, as the case may be, to produce for the examination and use of the moving party any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified. (b)Production of entire statement. – If the entire contents of the statement relate to the subject matter concerning which the witness has testified, the court shall order that the statement be delivered to the moving party. (c)Production of excised statement. – If the other party claims that the statement contains privileged information or matter that does not relate to the subject matter concerning which the witness has testified, the court shall order that it be delivered to the court in camera. Upon inspection, the court shall excise the portions of the statement that are privileged or that do not relate to the subject matter concerning which the witness has testified, and shall order that the statement, with such material excised, be delivered to the moving party. Any portion of the statement that is withheld from the defendant over his or her objection shall be preserved by the attorney for the state, and, if the defendant appeals a conviction, must be made available to the appellate court for the purpose of determining the correctness of the decision to excise the portion of the statement. (d)Recess for examination of statement. – Upon delivery of the statement to the moving party, the court, upon application of that party, may recess the proceedings so that counsel may examine the statement and prepare to use it in the proceedings. (e)Sanction for failure to produce statement. – If the other party elects not to comply with an order to deliver a statement to the moving party, the court shall order that the testimony of the witness be stricken from the record and that the trial proceed, or, if it is the attorney for the state who elects not to comply, shall declare a mistrial if required by the interest of justice. (f)Definition. – As used in this rule, a statement of a witness means:
(1) A written statement made by the witness that is signed or otherwise adopted or approved by the witness; (2) A substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical or other recording or a transcription thereof or; (3) A statement, however taken or recorded or a transcription thereof, made by the witness to a grand jury. (g)Scope of rule. – This rule applies at a suppression hearing conducted under Rule 12, at trial under this rule, and to the extent specified:
(1) in Rule 32(d) at sentencing; (2) in Rule 32.1(c) at a hearing to revoke or modify probation or supervised release; and (3) in Rule 46(i) at a detention hearing.
W.Va. R. Crim. P. 26.2
Effective October 1, 1981; amended effective September 1, 1995.
