Senate Bill No. 32
(By Senator Stollings)
[Introduced February 13, 2013; referred to the Committee on the
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