Senate Bill No. 147
(By Senator Stollings)
[Introduced January 11, 2012; referred to the Committee on the Judiciary.]
A BILL to amend and reenact §51-2A-8 of the Code of West Virginia, 1931, as amended; and to amend and reenact §62-1D-6 of said code, all relating to cellular telephone communications; making express that wiretapping evidentiary provisions apply to matters in family court; and providing that cellular phone communications, including texting, are confidential and not subject to discovery in civil proceedings.
Be it enacted by the Legislature of West Virginia:
That §51-2A-8 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §62-1D-6 of said code be amended and reenacted, all to read as follows:
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 2A. FAMILY COURTS.
§51-2A-8. Rules of practice and procedure; applicability of Rules of Evidence; applicability of evidentiary provision in Wiretapping and Electronic Surveillance Act; record of hearings; duties of clerk of circuit court.
(a) Pleading, practice and procedure in matters before a family court judge are governed by rules of practice and procedure for family law promulgated by the Supreme Court of Appeals.
(b) The West Virginia Rules of Evidence apply to proceedings before a family court judge except as otherwise provided by law, including, but not limited to, the provisions of section six, article one-d, chapter sixty-two of this code.
(c) Hearings before a family court shall be recorded electronically. A magnetic tape or other electronic recording medium on which a hearing is recorded shall be indexed and securely preserved by the secretary-clerk of the family court judge and shall not be not placed in the case file in the office of the circuit clerk. Provided, That Upon the request of the family court judge, the magnetic tapes or other electronic recording media shall be stored by the clerk of the circuit court. When requested by either of the parties, a family court judge shall provide a duplicate copy of the tape or other electronic recording medium of each hearing held. For evidentiary purposes, a duplicate of such the electronic recording prepared by the secretary-clerk shall be is 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 the rule. The party requesting the copy shall pay an amount equal to the actual cost of the tape or other medium or the sum of $5, whichever is greater. Unless otherwise ordered by the court, the preparation of a transcript and the payment of the cost thereof shall be of the preparation is the responsibility of the party requesting the transcript.
(d) The recording of the hearing or the transcript of testimony, as the case may be, and the exhibits, together with all documents filed in the proceeding, constitute the exclusive record and, on payment of lawfully prescribed costs, shall be made available to the parties.
(e) In any proceeding in which a party has filed an affidavit that he or she is financially unable to pay the fees and costs, the family court judge shall determine whether either party is financially able to pay the fees and costs based on the information set forth in the affidavit or on any evidence submitted at the hearing. If a family court judge determines that either party is financially able to pay the fees and costs, the family court judge shall assess the payment of such the fees and costs accordingly as part of an order. The provisions of this subsection do not alter or diminish the provisions of section one, article two, chapter fifty-nine of this code.
(f) The clerks of the circuit court shall have, within the scope of the jurisdiction of family courts, all the duties and powers prescribed by law that clerks exercise on behalf of circuit courts Provided, That except that a family court judge may not require the presence or attendance of a circuit clerk or deputy circuit clerk at any hearing before the family court.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 1D. WIRETAPPING AND ELECTRONIC SURVEILLANCE ACT.
§62-1D-6. Admissibility of evidence.
Evidence obtained, directly or indirectly, by the interception of any wire, oral or electronic communication shall be received in evidence only in is not admissible except in grand jury proceedings and criminal proceedings in magistrate court and circuit court. Provided, That Evidence obtained in violation of the provisions of this article shall not be is not admissible in any proceeding. Cellular telephone communications, including texting, are confidential and neither admissible nor subject to discovery in civil proceedings.
NOTE: The purpose of this bill is to make express that the evidentiary provisions of wiretapping laws apply to proceedings before family courts and to qualify cellular telephone communications, including texting, as confidential and neither admissible nor subject to discovery in civil proceedings.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.