H. B. 2866
(By Delegate Stalnaker)
[Introduced March 15, 2001; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section eight, article five, chapter
fifty of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, relating to providing that unless a
criminal defendant in magistrate court requests a jury trial
in writing within twenty days from the date of his or her
initial appearance, he or she forever waives their right to a
jury upon the criminal offense or offenses for which they were
required to make the initial appearance.
Be it enacted by the Legislature of West Virginia:
That section eight, article five, chapter fifty of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted to read as follows:
ARTICLE 5. TRIALS, HEARINGS AND APPEALS.
§50-5-8. Trial by jury; trial to the court.
(a) A party to a civil action in magistrate court has the
right to elect that the matter be tried with a jury when the amount
in controversy exceeds twenty dollars or involves possession of
real estate. The election must be made in writing at any time
after the commencement of the action and not later than twenty days
after the service of any first timely filed answer to the
complaint. Failure to elect within such time constitutes a waiver
of the right to trial by jury.
(b) A defendant in any criminal trial for a misdemeanor
offense triable before a magistrate has the right to demand that
the matter be tried with a jury, and the defendant shall be advised
of the right to trial by jury in writing. A demand by the
defendant for a jury trial must be made in writing not later than
twenty days after the defendant's initial appearance before the
magistrate. Provided,
That in the case of an indigent for whom
counsel is to be appointed, the twenty-day period shall not
commence to run until counsel is appointed.
(c) If a jury trial is elected or demanded to determine the issues of fact, the election or demand may not be withdrawn over
the objection of any party appearing at the trial, and the
magistrate shall cause a jury to be selected, empaneled and sworn
which will hear the parties and their evidence, receive the
instructions of the court relative to the law involved and, after
deliberation, deliver a verdict: Provided, That in a criminal
proceeding, any such verdict must be unanimous.
(d) A magistrate court jury shall consist of six persons, to
be selected from a panel of ten persons. The selection and
summoning of jurors shall be conducted in accordance with the
provisions of article one, chapter fifty-two of this code and the
supervisory rules of the supreme court of appeals. Jurors shall be
paid by the state in accordance with such rules.
(e) For purposes of appeal, when a jury trial is had in
magistrate court, the magistrate court shall be a court of limited
record. Trials before a magistrate when a jury is empaneled shall
be recorded electronically. A magnetic tape or other electronic
recording medium on which a trial is recorded shall be indexed and
securely preserved by the magistrate court clerk. When requested
by either of the parties in a civil action, by the state or the
defendant in a criminal proceeding, or by any interested person, the magistrate court clerk shall provide a duplicate copy of the
tape or other electronic recording medium of each trial held. For
evidentiary purposes, a duplicate of such electronic recording
prepared by the magistrate court clerk 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. Unless
a party requesting the copy has been permitted to proceed in a
civil action without prepayment in accordance with the provisions
of section one, article two, chapter fifty-nine of this code, or in
a criminal proceeding as an indigent, the party 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.
(f) If neither party to a civil action demands a jury trial,
or if the defendant in a criminal proceeding waives the right to
trial by jury, the matter shall be tried by the magistrate sitting
without a jury. For purposes of appeal, when a nonjury trial is
had in magistrate court, the magistrate court shall not be a court
of limited record and the magistrate shall not electronically record the action or proceeding.
(g) The designation in this section of magistrate courts as
"courts of limited record" shall not be construed to give standing
or eligibility to magistrates to participate or be included in the
retirement system for judges of courts of record established under
the provisions of article nine, chapter fifty-one of this code.
NOTE: The purpose of this bill is to require, under all
circumstances, that a criminal defendant's right to a jury trial in
misdemeanor cases is forever waived unless he or she requests it
within twenty days of his or her initial appearance in magistrate
court.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.