CHAPTER 57. EVIDENCE AND WITNESSES.
ARTICLE 1. LEGISLATIVE ACTS AND RESOLUTIONS; PUBLIC RECORDS.
§57-1-1. Copies of legislative journals, acts and resolutions.
Copies of the journal of either house of the Legislature, and
copies of the acts and resolutions of the Legislature, which have
been or shall hereafter be published by authority thereof, shall be
received as evidence for any purpose for which the original
journal, acts or resolutions could be received and with as much
§57-1-2. Local or private acts and resolutions of Legislature;
judicial notice thereof.
Local or private acts and resolutions of the Legislature may
be given in evidence without being especially pleaded; and an
appellate court shall take judicial notice of such as appear to
have been relied on in the court below.
§57-1-3. Copies of Virginia laws.
The printed copies of the acts and resolutions of the general
assembly of Virginia and of the statutes and codes of that state,
with the supplements to and continuations of the same, and the
ordinances of the convention which assembled at Wheeling on the
eleventh day of June, eighteen hundred and sixty- one, shall
continue to be received in evidence within this state, in like
manner as they were receivable when it was part of the state of
§57-1-4. Judicial notice of foreign laws.
Whenever in any case it becomes material to ascertain what the
law, statutory or other, of another state or country, or of the
United States, is, or was at any time, the court, judge, or
magistrate shall take judicial notice thereof, and may consult any
printed book or other document, purporting to contain, state or
explain the same, and consider any testimony, information or
argument that is offered on the subject.
§57-1-5. Notice by courts and officers of signatures of judges or
All courts and officers shall take notice of the signature of
any of the judges, or of the governor, of this state, to any
judicial or official documents.
§57-1-6. Copies of certain deeds.
Copies of deeds, acknowledged or proved and certified
according to the act of the general assembly of Virginia, of the
thirteenth of December, seventeen hundred and ninety-two, and
placed upon record after the expiration of two years, the period
prescribed by the act of the twenty-fifth of December, seventeen
hundred and ninety-four, but before the passage of the act of the
seventh of February, eighteen hundred and fourteen, shall be
received in evidence, and have all the force and effect of copies
of deeds recorded within two years, the period prescribed as
That nothing in this section shall be
construed to affect the rights of creditors and subsequent
purchasers without notice.
§57-1-7. Copies of records, bonds or papers in public offices;
certificate of auditor.
A copy of any record, bond or paper in the office of the clerk
of either house of the Legislature or of any court, or in the
office of the secretary of state, treasurer or auditor, or in the
office of the surveyor of lands of any county, or in the office of
any other public officer, attested by the appropriate officer,
which shall include the secretary of a board or commission, in
whose office the same is, may be admitted as evidence in lieu of
the original. The certificate of the auditor of the fact and time
of the return of any real estate as delinquent, or of the sale
thereof for taxes, shall be prima facie evidence of what is stated
in such certificate. Any such copy or certificate purporting to be
sealed, or signed and sealed, or signed alone, by any such officer,
may be admitted as evidence without any proof of the seal or
signature, or of the official character, of the person whose name
is signed to it. The certificate of the auditor of the payment or
nonpayment at any time of taxes on forfeited or delinquent lands,
or of their not having been entered on the land books of the county
or counties wherein the same were chargeable with taxes shall, in
any suit in relation to such lands, be prima facie evidence of what
is stated in such certificate, provided it be filed with the papers
of said suit and notice thereof be given to the opposite party or
his attorney at least twenty days before the first day of the term
at which it is to be offered as evidence. When the certificate
purports to be signed by the said auditor, it may be admitted as
evidence without proof of his signature.
§57-1-7a. Use of photographic copies in evidence; state records,
papers or documents; destruction or transfer to
archives of originals; destruction of canceled checks
and paid and canceled bonds and coupons.
(a) Any public officer of the state may, with the approval of
the state records administrator, cause any or all records, papers
or documents kept by him to be reproduced, by any photographic,
photostatic, microphotographic or by similar miniature photographic
process or by nonerasable optical image disks (commonly referred to
as compact disks) or by other records-retention technology approved
by the state records administrator. These reproductions by
photographic, photostatic, microphotographic or by similar
miniature photographic process or by nonerasable optical image
disks shall be of durable material and the device used to reproduce
such records on such film shall be one which accurately reproduces
the originals thereof in all details.
The reproductions by photographic, photostatic,
microphotographic or by similar miniature photographic process or
nonerasable optical image disks shall be deemed to be an original
record for all purposes, including introduction in evidence in all
courts or administrative agencies. A transcript, exemplification
or certified copy thereof shall, for all purposes recited herein,
be deemed to be a transcript, exemplification or certified copy of
the original. Whenever reproductions by photographic, photostatic,
microphotographic or by similar miniature photographic process or
nonerasable optical image disks have been made and put in
conveniently accessible fireproof files, and provision has been made for preserving, examining and using the same, the respective
heads of the departments, divisions, institutions and agencies of
the state may, with the approval of the state records
administrator, cause the records and papers so reproduced by
photographic, photostatic, microphotographic or by similar
miniature photographic process or nonerasable optical image disks,
or any part thereof, to be destroyed; but before any records,
papers or documents are authorized to be destroyed, the state
records administrator shall obtain the advice and counsel of the
state historian and archivist, or his designated representative, as
to the desirability of placing the records, papers and documents in
the archives of that department. In the event the administrator is
of the opinion that the record has no further administrative,
legal, fiscal, research or historical value, the administrator may
destroy or otherwise dispose of the record, paper or document if
otherwise permitted to do so after complying with the provisions of
section seventeen, article eight, chapter five-a of this code.
(b) Notwithstanding any other provisions of this code to the
contrary, the state treasurer may at his discretion destroy any
canceled checks of the state after three years have elapsed since
the date of the check, whether or not such checks have been
reproduced by photographic, photostatic, microphotographic or by
similar miniature photographic process or nonerasable optical image
disks: Provided, That any canceled bonds or interest coupons of
any bond issues of this state in the custody of the treasurer, or
for which the treasurer acts as fiscal agent or paying agent, may
at his discretion be destroyed by one of the two methods below:
Method I - The treasurer shall maintain a permanent record for
the purpose of recording the destruction of bonds and coupons,
showing the following: (1) With respect to bonds, the purpose of
issuance, the date of issue, denomination, maturity date and total
principal amount; and (2) with respect to coupons, the purpose of
issue and date of the bonds to which the coupons appertain, the
maturity date of the coupons, and, as to each maturity date, the
denomination, quantity and total amount of coupons.
After recording the specified information, the treasurer shall
have the canceled bonds and coupons destroyed either by burning or
shredding, in the presence of an employee of the treasurer and an
employee of the legislative auditor, each of whom shall certify
that he saw the canceled bonds and coupons destroyed. The
certificates shall be made a part of the permanent record.
Canceled bonds or coupons shall not be destroyed until after one
year from the date of payment.
Method II - The treasurer may contract with any bank or trust
company acting as paying agent or copaying agent for a bond issue
of the state for the destruction of bonds and interest coupons
which have been canceled by the paying agent. The contract shall
require that the paying agent give the treasurer a certificate
containing the same information required by Method I. The
certificate shall be made a part of the treasurer's permanent
Each contract shall also require that the paying agent be
responsible for proper payment and disposition of all bonds and
coupons, and for any duplicate payments to unauthorized persons and nonpayment to authorized persons occurring as a result of
destruction of bonds or coupons under this section. In addition,
the treasurer may require the paying agent to submit an indemnity
bond, in an amount to be determined by the treasurer, to assure
performance of the duties specified in this section. Canceled
bonds or coupons may not be destroyed until one year from the date
For purposes of this section, the term "bonds" shall include
§57-1-7b. Use of photographic copies in evidence -- Business and
public records; destruction of originals.
If any business, institution, member of a profession or
calling, or any officer of a local governmental agency, including
county officers, county boards of education and municipalities, in
the regular course of business or activity has kept or recorded any
memorandum, writing, entry, print, representation or combination
thereof, of any act, transaction, occurrence or event, and in the
regular course of business has caused any or all of the same to be
recorded, copied or reproduced by any photographic, photostatic,
microfilm, microcard, miniature photographic, or other process
which accurately reproduces or forms a durable medium for so
reproducing the original, the original may be destroyed in the
regular course of business unless held in a custodial or fiduciary
capacity or unless its preservation is required by law: Provided,
That destruction of records of local governmental agencies
shall also be contingent upon the approval by those agencies of
such disposition. Such reproduction, when satisfactorily
identified, is as admissible in evidence as the original itself in
any judicial or administrative proceeding whether the original is
in existence or not, and an enlargement or facsimile of such
reproduction is likewise admissible in evidence if the original
reproduction is in existence and available for inspection under
direction of court. The introduction of a reproduced record,
enlargement of facsimile, does not preclude admission of the
§57-1-7c. Use of microfilm or microcards to reproduce and preserve
records; destruction or transfer of originals to
The clerk of any court of record of the state may, with the
approval of the court for which he or she is clerk, cause any or
all records, papers, plats, or other documents kept by him or her
to be reproduced on photographic microfilm or microcards and may,
with the approval of the court for which he or she is clerk,
record, keep and preserve any and all records, papers, plats, or
other documents required by the laws of this state to be recorded
or kept by said clerk or court exclusively upon photographic
microfilm or microcards instead of in well-bound books or instead
of by any other method heretofore prescribed by law.
Such photographic microfilm and microcards shall be of durable
material and possess good, archival qualities. The device used to
reproduce such records on such film and cards shall be one which
accurately reproduces the original thereof in all details.
Such photographic microfilm and microcards shall be deemed to
be an original record for all purposes, including introduction into
evidence in all courts or administrative agencies. A transcript,
exemplification, or photographic reproduction thereof shall, when
properly authenticated by the clerk of such court, be deemed for
all purposes to be a transcript, exemplification, or certified copy
of the original.
Such photographic microfilm and microcards shall be put in
convenient, accessible fireproof files and adequate provision shall
be made for preserving, examining and using the same.
Any such records, papers, plats, or other documents not held
for others by said clerk or court or required by law to be
delivered to some other person, court, corporation or agency, may
with the approval of the court keeping such records, papers, plats,
or other documents be destroyed; but before any such records,
papers, plats or other documents are authorized to be destroyed the
court keeping them or the clerk thereof shall obtain the advice and
counsel of the state historian or archivist, or his designated
representatives, as to the desirability of placing the said
records, papers, plats, or other documents in the department of
archives and history. However, prior to destroying or otherwise
disposing of the same, the court or clerk thereof shall give
written notice of the intention to do so to the director of the
section of archives and history of the division of culture and
history. Upon the written request of the director, given to the
court or clerk thereof within ten days of receipt of said notice,
the court or clerk thereof shall retain the original record for a
period of thirty days. In the event the director fails to retrieve
the original document from the court or clerk thereof within the
thirty-day period, the court or clerk thereof may destroy or
otherwise dispose of the original without further notice to the
§57-1-7d. Records provided on computer or optical disc.
Notwithstanding any other provision of this code to the
contrary, where any provision of this code requires that a copy of
any record of any branch of the government of this state be
provided or delivered, the custodian of said record is authorized
to comply with the requirement by providing or delivering a true
copy in the form of a computer or optical disc which is not subject
to alteration, is formatted to write once read many, and is
attested by the custodian thereof to be a true, accurate and
complete copy of the record required to be provided or delivered.
§57-1-8. Copy of writing filed in one suit may be filed in another
suit on same writing.
Such a copy of any writing filed in a suit may be filed in
another suit on the same writing, and the defendant shall plead
thereto as if the original were filed.
§57-1-9. Application of §§57-1-7 and 57-1-8 to records or papers
in public offices in Virginia.
The provisions in the two preceding sections contained shall
apply to a copy of any record or paper in the clerk's office of any
court in the state of Virginia, or in the office of the secretary
of the commonwealth, treasurer, register of the land office, or
either auditor, or any surveyor of lands of that state, attested as
aforesaid; and to any certificate of the auditor of public accounts
of that state as to the return of any real estate as delinquent, or
sale thereof for taxes, or payment or nonpayment of taxes on
forfeited or delinquent lands, or nonentry of lands on the books of
the commissioner of the revenue: Provided,
That such certificate
of the auditor as to the payment or nonpayment of taxes on
forfeited or delinquent lands, or nonentry of such lands on the
books of the commissioner of the revenue, be filed with the papers
in any suit in relation to such lands, and notice thereof be given
to the opposite party or his attorney, at least forty days before
the first day of the term at which it is offered as evidence.
§57-1-10. Certificate of clerk of county court as to certain tax
The certificate of the clerk of any county court of the entry
or nonentry of any tract of land for taxation on the land books of
any county wherein the land ought to have been charged or of the
delinquency of any such land for the nonpayment of taxes charged
thereon, and the amount of the taxes charged as delinquent, or such
clerk's certificate of the sale of such land for the nonpayment of
taxes, shall, in any suit in relation to such lands, be prima facie
evidence of what is stated in such certificate: Provided,
be filed with the papers of said suit and notice thereof given to
the opposite party or his attorney at least twenty days before the
first day of the term at which it is to be offered as evidence.
When a certificate purports to be signed by any such clerk, it may
be admitted as evidence without proof of his signature.
§57-1-11. Withdrawal of original paper filed in cause; retention
The court in the clerk's office whereof there is an original
paper filed in a cause (although decided) may, for good cause,
order it to be delivered to any person, retaining in its stead a
certified copy thereof, and make any order to prevent the improper
use of the original.
§57-1-12. Authentication of records and proceedings of courts of
United States or other states; full faith and credit.
The records and judicial proceedings of any court of the
United States, or of any state or territory, or of any country
subject to the jurisdiction of the United States, shall be proved
or admitted in any court in this state, by the attestation of the
clerk, and the seal of the court annexed, if there be a seal,
together with a certificate of the judge, chief justice, or
presiding magistrate, that the said attestation is in due form.
And the said records and judicial proceedings, so authenticated,
shall have such faith and credit given to them in every court
within this state as they have by law or usage in the courts of the
state or jurisdiction from which they are taken. Full faith and
credit for child support orders shall be accorded by this state in
conformity with federal law.
§57-1-13. Authentication of public records not pertaining to
courts; full faith and credit.
All records and exemplifications of books, which may be kept
in any public office of the United States, or of any state, or
territory, or of any country subject to the jurisdiction of the
United States, not appertaining to a court, shall be proved or
admitted in any court or office in this state by the attestation of
the keeper of the said records or books, and the seal of his office
annexed, if there be a seal, together with a certificate of the
presiding justice of the court of the county, parish or district in
which such office may be kept, or of the governor, or secretary of
state, the chancellor or keeper of the great seal, of the state or
territory or country, that the said attestation is in due form, and
by the proper officer. If the said certificate is given by the
presiding justice of a court, it shall be further authenticated by
the clerk or prothonotary of the said court, who shall certify,
under his hand and the seal of his office, that the said presiding
justice is duly commissioned and qualified; or, if given by such
governor, secretary, chancellor, or keeper of the great seal, it
shall be under the great seal of the state, territory, or country,
aforesaid, in which it is made: Provided, however,
copies of schedules and classifications and tariffs of rates, fares
and charges, and supplements thereto, filed with the interstate
commerce commission, which show respectively an interstate commerce
commission number, which may be stated in abbreviated form, as
I.C.C. No............., and an effective date, may be received in
evidence without certification, and shall be presumed to be correct copies of the original schedules, classifications, tariffs and
supplements on file with the interstate commerce commission. And
the said records and exemplifications, so authenticated, shall have
such faith and credit given to them in every court and office
within this state as they have by law or usage in the courts or
offices of the state, territory, or country, as aforesaid, from
which they are taken.
§57-1-14. Authentication of foreign deeds, powers of attorney,
policies of insurance, etc.
Every deed or power of attorney executed out of this state,
the acknowledgment or proof of which is certified so that it might
be admitted to record under article one, chapter thirty- nine of
this code, and every policy of insurance, charter party, copy from
a record in any foreign court or from a register of births and
marriages in any place out of the United States, if it be attested
by a notary public, under his seal of office, that such policy,
charter party, record or register was made, entered or kept in due
form according to the law of the place in which it was made,
entered or kept, and that such copy is true, and the official
character of such notary be certified to by any court of record, or
the mayor or other chief magistrate of any county, city, town or
borough, or under the great seal of the state, kingdom, province,
an island or colony in which such notary may reside, shall be
evidence in any court in this state.
ARTICLE 2. WRITINGS AND STATEMENTS OF PRIVATE PERSONS.
§57-2-1. Handwriting analysis.
In any civil or criminal action or proceeding, any writing
proved to the satisfaction of the judge of a court of record in an
in-camera hearing to be in the handwriting of the person who is
alleged to have written it, whether or not made in the ordinary
course of business, may, if the court further finds that its
probative value outweighs its prejudicial effect, be admitted into
evidence for the purpose of making a comparison with a disputed
writing on the issue of whether or not the disputed writing is
genuine. The authenticity of each writing shall be finally
determined by the trier of fact.
§57-2-2. When attesting witness need not be called.
It shall not be necessary to prove by the attesting witness
any instrument to the validity of which attestation is not
requisite; and such instrument may be proved by admission, or
otherwise, as if there had been no attesting witness thereto.
§57-2-3. Statement by accused upon legal examination.
In a criminal prosecution other than for perjury or false
swearing, evidence shall not be given against the accused of any
statement made by him as a witness upon a legal examination.
§57-2-4. Justification and mitigation of damages in action for
In any action for defamation, the defendant may justify by
alleging and proving that the words spoken or written were true,
and after notice in writing of his intention to do so (given to the
plaintiff at the time of, or for, pleading to such action) may give
in evidence in mitigation of damages that he made or offered an
apology to the plaintiff for such defamation before the
commencement of the action, or as soon afterwards as he had an
opportunity of doing so, in case action shall have been commenced
before there was an opportunity of making or offering such apology.
ARTICLE 3. COMPETENCY OF WITNESSES.
§57-3-1. Party or interested person competent as witness;
exception as to transaction or communication with
deceased or insane person; right of person sued to
give evidence in action for death by wrongful act.
No person offered as a witness in any civil action, suit or
proceeding shall be excluded by reason of his interest in the event
of the action, suit or proceeding, or because he is a party
thereto, except as follows: No party to any action, suit or
proceeding, nor any person interested in the event thereof, nor any
person from, through or under whom any such party or interested
person derives any interest or title by assignment or otherwise,
shall be examined as a witness in regard to any personal
transaction or communication between such witness and a person at
the time of such examination, deceased, insane or lunatic, against
the executor, administrator, heir at law, next of kin, assignee,
legatee, devisee or survivor of such person, or the assignee or
committee of such insane person or lunatic. But this prohibition
shall not extend to any transaction or communication as to which
any such executor, administrator, heir at law, next of kin,
assignee, legatee, devisee, survivor or committee shall be examined
on his own behalf, nor as to which the testimony of such deceased
person or lunatic shall be given in evidence: Provided, however,
That where an action is brought for causing the death of any person
by any wrongful act, neglect or default under article seven,
chapter fifty-five of this code, the person sued, or the servant,
agent or employee of any firm or corporation sued, shall have the
right to give evidence in any case in which he or it is sued, but he may not give evidence of any conversation with the deceased.
§57-3-2. Competency of husband and wife to testify.
Husband and wife shall be competent witnesses to testify for
or against each other in all cases, civil and criminal, except as
§57-3-3. Testimony of husband and wife in criminal cases.
In criminal cases husband and wife shall be allowed, and,
subject to the rules of evidence governing other witnesses, may be
compelled to testify in behalf of each other, but neither shall be
compelled, nor, without the consent of the other, allowed to be
called as a witness against the other except in the case of a
prosecution for an offense committed by one against the other, or
against the child, father, mother, sister or brother of either of
them. The failure of either husband or wife to testify, however,
shall create no presumption against the accused, nor be the subject
of any comment before the court or jury by anyone.
§57-3-4. Confidential communications between husband and wife.
Neither husband nor wife shall, without the consent of the
other, be examined in any case as to any confidential communication
made by one to the other while married, nor shall either be
permitted, without such consent, to reveal in testimony after the
marriage relation ceases any such communication made while the
§57-3-5. Competency of convicts as witnesses.
Conviction of felony or perjury shall not render the convict
incompetent to testify, but the fact of conviction may be shown in
evidence to affect his credibility.
§57-3-6. Competency of accused as witness.
In any trial or examination in or before any court or officer
for a felony or misdemeanor, the accused shall, with his consent
(but not otherwise) be a competent witness on such trial or
examination; and if he so voluntarily becomes a witness he shall,
as to all matters relevant to the issue, be deemed to have waived
his privilege of not giving evidence against himself and shall be
subject to cross-examination as any other witness; but his failure
to testify shall create no presumption against him, nor be the
subject of any comment before the court or jury by anyone.
§57-3-7. No person incompetent as witness by reason of race or
No person shall be incompetent as a witness on account of race
§57-3-8. Competency of chiropractors as witnesses.
Practitioners of chiropractic shall be permitted to qualify as
competent witnesses, insofar as chiropractic testimony or
chiropractic facts may be concerned in any civil action in any
court in this state.
WVC 57 - 3 - 9
§57-3-9. Communications to priests, nuns, clergy, rabbis,
Christian Science practitioners or other religious
counselors not subject to being compelled as
No priest, nun, rabbi, duly accredited Christian Science
practitioner or member of the clergy authorized to celebrate the
rites of marriage in this state pursuant to the provisions of
article two, chapter forty-eight of this code shall be compelled to
testify in any criminal or grand jury proceedings or in any
domestic relations action in any court of this state:
(1) With respect to any confession or communication, made to
such person, in his or her professional capacity in the course of
discipline enjoined by the church or other religious body to which
he or she belongs, without the consent of the person making such
confession or communication; or
(2) With respect to any communication made to such person, in
his or her professional capacity, by either spouse, in connection
with any effort to reconcile estranged spouses, without the consent
of the spouse making the communication. This subsection is in
addition to the protection and privilege afforded pursuant to
section three hundred one, article one, chapter forty-eight of this
WVC 57 - 3 - 10
§57-3-10. Reporters' Privilege.
(a) "Reporter" means a person who regularly gathers, prepares,
collects, photographs, records, writes, edits, reports, or
publishes news or information that concerns matters of public
interest for dissemination to the public for a substantial portion
of the person's livelihood, or a supervisor, or employer of that
person in that capacity: Provided,
That a student reporter at an
accredited educational institution who meets all of the
requirements of this definition, except that his or her reporting
may not provide a portion of his or her livelihood, meets the
definition of reporter for purposes of this section.
(b) No reporter may be compelled to:
(1) Testify in any civil, criminal, administrative or grand
jury proceeding in any court in this state concerning the
confidential source of any published or unpublished information
obtained by the reporter in the course of the above described
activities without the consent of the confidential source, unless
such testimony is necessary to prevent imminent death, serious
bodily injury or unjust incarceration; or
(2) Produce any information or testimony that would identify
a confidential source, without the consent of the confidential
source, unless such testimony or information is necessary to
prevent imminent death, serious bodily injury or unjust
(c) Nothing in this section shall be read to limit any existing Constitutional protections afforded any person under the
United States or West Virginia Constitutions.
ARTICLE 4. DEPOSITIONS AND PERPETUATION OF TESTIMONY.
§57-4-1. Taking and certification of depositions -- Generally.
In any pending case the deposition of a witness, whether a
party to the suit or not, may, without commission, be taken in or
out of this state by a justice, or notary public, or by a
commissioner in chancery, or before any officer authorized to take
depositions in the county or state where they may be taken.
However, a deposition may not be taken by any person who is a
relative or employee or attorney of any of the parties, or is a
relative or employee of the attorney, or a relative or employee or
attorney of one who has a financial interest in the outcome of the
case, or who is otherwise financially interested in the action.
Any deposition taken by an interested party, as described above,
shall be considered void. For purposes of this article, an
employee includes a person who has a contractual relationship with
a party litigant to provide reporting or other court services and
also includes a person employed part or full time under contract or
otherwise by a person who has a contractual relationship with a
party litigant to provide reporting or other court services. A
party litigant does not include federal, state or local governments
and the subdivisions thereof. Depositions may be taken in
shorthand, or stenographic characters or notes, and shall be
written out in full and transcribed into the English language by
the stenographer taking the same, and certified by the officer
before whom the depositions are taken; and if certified by such
officer under his hand and if further certified by him that such
stenographic characters and notes were correctly taken and
accurately transcribed by him, or under his direction and supervision, and that the witnesses were duly sworn, such
depositions may be received and read in evidence without proof of
the signature to such certificate and without the signature of the
witness to such depositions. And in case the stenographer taking
such depositions is not the officer before whom the same are being
taken, then such stenographer, before proceeding to take any of
said depositions, shall be sworn to take correctly and accurately
transcribe the same, and the certificate of the officer before whom
the depositions are taken shall state that the stenographer was so
§57-4-2. Taking and certification of depositions -- Out of state
and in foreign countries.
On affidavit that a witness resides out of this state, or is
out of it in the service thereof, or of the United States, or is
out of this state and for justifiable reasons will probably be out
of this state until after the trial of the case in which his
testimony is needed, his deposition may be taken by or before any
commissioner appointed by the governor of this state, or any
justice, notary public or other officer authorized to take
depositions in the state wherein the witness may be, or, if the
deposition is to be taken in a foreign country, by or before such
commissioner or commissioners as may be agreed upon by the parties
or appointed by the court, or, if there be none such, by or before
any American minister, plenipotentiary, charge d'affaires, consul
general, consul, vice consul, consular agent, vice deputy consular
agent, commercial agent or vice commercial agent, appointed by the
government of the United States, or by or before the mayor or other
chief magistrate of any city, town or corporation in such country
or any notary public therein. Any person or persons taking such
deposition may administer an oath to the witness and take and
certify the deposition with his official seal annexed, and if he
have none, the genuineness of his signature shall be authenticated
by some officer of the same state or country, under his official
§57-4-3. Notice of taking of depositions; when deposition may be
read in equity.
Reasonable notice shall be given to the adverse party of the
time and place of taking every deposition. And in a suit in equity
a deposition may be read if returned before the hearing of the
cause, although after an interlocutory decree, if it be as to a
matter not thereby adjudged, and be returned before a final decree.
§57-4-4. Circumstances under which deposition may be read in case
at law; attendance of deponent out of county may be
A deposition in a case at law, taken on such notice under the
three preceding sections, may be read in such case, if when it is
offered, the deponent be dead, or out of this state, or one of its
judges, or in any public office or service the duties of which
prevent his attending the court, or be unable to attend it from
sickness or other infirmity, or be out of the county in which the
case is pending, or, because of lapse of time or mental infirmity,
be unable to remember any material part of what he had deposed to.
But when the only ground of reading a deposition is that the
deponent is out of the county, on motion to the court, before the
commencement of the trial, the court may, for good cause shown,
require such deponent to attend in person.
§57-4-5. When deposition may be read by adverse party.
When a deposition has been filed, if not read on the trial by
the party taking it, it may be read by the other party.
§57-4-6. Taking deposition after judgment, decree or order;
reading thereof in future trial.
In any case wherein there has been a judgment, decree or order
from or to which an appeal, writ of error or supersedeas has been
or might be allowed, a deposition may be taken for any party to
such case, or for or against his or her husband or wife, personal
representatives, heirs or devisees in like manner and by such
persons as it is before prescribed for pending cases; and it may be
read in any future trial that may be directed, if the same could
properly be read, had there been no such judgment, decree or order.
§57-4-7. How testimony perpetuated.
A person desirous of perpetuating the testimony of witnesses
as to a a matter, whether a suit be pending in relation thereto or
not, may file with a commissioner in chancery of a court wherein,
if there were a bill to perpetuate the testimony, such bill might
be filed, a petition stating such matter, and what persons may be
affected by the testimony. Whereupon the commissioner shall
appoint for proceeding on the petition a time and place, whereof
reasonable notice shall be given to the persons who may be so
affected. If any of them be an infant or insane person, the
commissioner shall appoint a guardian ad litem who shall attend on
his behalf and who shall be a practicing attorney in this state.
At such time and place the commissioner shall take in writing the
evidence of any witness adduced in respect to said matter by the
petitioner or by the person so affected. He may adjourn from time
to time, and shall return a report of his proceedings, with the
testimony taken by him, to the clerk's office of the court by which
he was appointed, and such testimony shall have the same effect as
if it had been taken on a bill to perpetuate testimony. Such court
may make such order as to the costs as may seem to it right.
ARTICLE 5. MISCELLANEOUS PROVISIONS.
§57-5-1. Summons for witnesses.
A summons may be issued, directed as described in section
five, article three, chapter fifty-six of this code, commanding the
officer to summon any person to attend on the day and at the place
that such attendance is desired, to give evidence before a court,
grand jury, arbitrators, umpire, justice, surveyor, notary public,
or any commissioner appointed by a court. The summons may be
issued, if the attendance be desired at a court, by the clerk
thereof; if before a grand jury, by the prosecuting attorney or the
clerk of the court, at the instance of the prosecuting attorney;
and in other cases, by any person before whom, or the clerk of the
circuit court of a county in which, the attendance is desired; or,
if attendance be desired before a justice, by such or any other
justice. The summons shall express on whose behalf, and in what
case, or about what matter, the witness is to attend. This section
shall be deemed to authorize a summons to compel attendance before
commissioners or other persons appointed by authority of another
state, but only in case they be citizens of this state, and the
summons requires the attendance of a witness at a place not out of
§57-5-2. When witness may be compelled to give evidence against
himself; immunity of witness from prosecution.
In any criminal proceeding no person shall be excused from
testifying or from producing documentary or other evidence upon the
ground that such testimony or evidence may criminate or tend to
criminate him, if the court in which he is examined is of the
opinion that the ends of justice may be promoted by compelling such
testimony or evidence. And if, but for this section, the person
would have been excused from so testifying or from producing such
evidence, then if the person is so compelled to testify or produce
other evidence and if such testimony or evidence is
self-criminating, such self-criminating testimony or evidence shall
not be used or receivable in evidence against him in any proceeding
against him thereafter taking place other than a prosecution for
perjury in the giving of such evidence, and the person so compelled
to testify or furnish evidence shall not be prosecuted for the
offense in regard to which he is so compelled to testify or furnish
evidence, and he shall have complete legal immunity in regard
§57-5-3. Production of writings -- By party.
In any case at law, upon a party making affidavit that a
particular book of accounts, or other writing or paper is important
for him to have in the trial of his cause, he may procure from the
clerk of the court in which the action is pending a subpoena duces
tecum requiring any party to the action to appear before the court
on a day named therein, and bring with him and produce before such
court such book of accounts, or other writing or paper, as is
specified in such process, in order that the same may be used as
evidence on the trial of the action. And unless the person upon
whom such process is served shall, at the time specified therein,
produce what is so required, or show to the satisfaction of the
court that he has not under his control such book, writing or
paper, or unless, from an inspection or otherwise, the court is of
opinion that the character of the book, writing or paper is such as
should not be used as evidence on the trial of the action, the
court may attach him and compel him to produce the same. It may
also, if it see fit, set aside a plea of such person and give
judgment against him by default, if he be a defendant, or, if he be
a plaintiff, order his suit to be dismissed, with costs, or if he
be claiming a debt before such court or commissioner, disallow such
§57-5-4. Production of writings -- By person other than party.
When it appears by affidavit or otherwise that a writing or
document in the possession of any person not a party to the matter
in controversy is material and proper to be produced before the
court, or any person appointed by it or acting under its process or
authority, or any such person as is named in section one of this
article, such court, family law master, judge or president thereof
may order the clerk of the said court to issue a subpoena duces
tecum to compel such production at a time and place to be specified
in the order.
§57-5-4a. Hospital records; definitions.
As used in sections four-a to four-j in this article the
following terms shall have the respective meanings ascribed
(a) "Records" means and includes without restriction, those
medical histories, records, reports, summaries, diagnoses, and
prognoses, records of treatment and medication ordered and given,
notes, entries, X-rays, and other written or graphic data prepared,
kept, made or maintained in hospitals that pertain to hospital
confinements or hospital services rendered to patients admitted to
hospitals or receiving emergency room or outpatient care. Such
records shall not, however, include ordinary business records
pertaining to patients' accounts or the administration of the
(b) "Custodian" means and includes the medical record
librarian and the administrator or other chief officer of a duly
licensed hospital in this state and its proprietor, as well as
their deputies and assistants and any other persons who are
official custodians or depositories of records.
§57-5-4b. Hospital records; furnishing copies in compliance with
Except as hereinafter provided, when a subpoena duces tecum is
served upon a custodian of records of any hospital duly licensed
under the laws of this state in an action or proceeding in which
the hospital is neither a party nor the place where any cause of
action is alleged to have arisen and such subpoena requires the
production of all or any part of the records of the hospital
relating to the care or treatment of a patient in such hospital, it
shall be sufficient compliance therewith if the custodian or other
officer of the hospital shall, on or before the time specified in
the subpoena duces tecum, file with court clerk or the officer,
body or tribunal conducting the hearing, a true and correct copy
(which may be a copy reproduced on film or other reproducing
material by microfilming, photographing, photostating or other
approximate process, or facsimile, exemplification or copy of such
reproduction or copy) of all records described in such subpoena.
§57-5-4c. Hospital records; sealing, identification and direction
The copy of the records shall be separately enclosed in an
inner-envelope or wrapper, sealed, with the style and number of the
action, name of witness and date of subpoena clearly inscribed
thereon. The sealed envelope or wrapper shall then be enclosed in
an outer-envelope or wrapper, sealed, and directed as follows:
If the subpoena directs attendance in court, to the clerk of
such court or to the judge thereof; if the subpoena directs
attendance at a deposition, to the officer before whom the
deposition is to be taken, at the place designated in the subpoena
for the taking of the deposition or at his place of business; in
other cases, to the officer, body or tribunal conducting the
hearing, at a like address.
§57-5-4d. Hospital records; opening of sealed envelopes.
Unless the sealed envelope or wrapper is returned to a witness
who is to appear personally, the copy of the records shall remain
sealed and shall be opened only at the time of trial, deposition,
or other hearing, upon the direction of the judge, court, officer,
body or tribunal conducting the proceeding, in the presence of all
parties who have appeared in person or by counsel at such trial,
deposition or hearing. Before directing that such inner-envelope
or wrapper be opened, the judge, court, officer, body or tribunal
shall first ascertain that either (1) the records have been
subpoenaed at the insistance of the patient involved or his counsel
of record, or (2) the patient involved or someone authorized in his
behalf to do so for him has consented thereto and waived any
privilege of confidence involved. Records which are not introduced
in evidence or required as part of the record shall be returned to
the person or entity from whom received.
The provisions of this section shall not apply in a workers'
compensation proceeding if the pertinent record is the record of
the claimant therein or a claimant's decedent: Provided, That
nothing in this section, or the preceding section, shall limit in
any manner the availability of and access to documents as provided
in the rules of civil procedure or elsewhere in this code by the
parties to any civil action and their counsel.
§57-5-4e. Hospital records; custodian's affidavit; charges.
The records shall be accompanied by an affidavit of a
custodian stating in substance: (a) That the affiant is a duly
authorized custodian of the records and has authority to certify
said records, (b) that the copy is a true copy of all the records
described in the subpoena, (c) that the records were prepared by
the personnel of the hospital, staff physicians, or persons acting
under the control of either, in the ordinary course of hospital
business at or near the time of the act, condition or event
reported therein, and (d) certifying the amount of the reasonable
charges of the hospital for furnishing such copies of the record.
If the hospital has none of the records described, or only part
thereof, the custodian shall so state in the affidavit and file the
affidavit and such records as are available in the manner described
in sections four-b and four-c. The filing of such affidavit with
respect to reasonable charges shall be sufficient proof of such
expense, which shall be taxed as costs of court.
§57-5-4f. Hospital records; admissibility of copies and
The copy of the record shall be admissible in evidence to the
same extent as though the original thereof were offered and the
custodian has been present and testified to the matters stated in
The affidavit shall be admissible in evidence and the matters
stated therein shall be presumed true in the absence of
preponderance of evidence to the contrary. When more than one
person has knowledge of the facts, more than one affidavit may be
§57-5-4g. Hospital records; obtaining personal attendance of
The personal attendance of the custodian shall be required if
the subpoena duces tecum contains a clause which reads:
"The procedure authorized pursuant to section four-b of this
article will not be deemed sufficient compliance with this
§57-5-4h. Hospital records; obtaining personal attendance of
custodian and production of original record.
The personal attendance of the custodian and the production of
the original record shall be required if the subpoena duces tecum
contains a clause which reads:
"Original records are required, and the procedure authorized
pursuant to section four-b, article five, chapter fifty-seven of
this code, will not be deemed sufficient compliance with this
§57-5-4i. Hospital records; substitution of copies after
introduction of originals.
In view of the property right of the hospital in its records,
original records may be withdrawn after introduction into evidence
and copies substituted, unless otherwise directed for good cause by
the court, judge, officer, body or tribunal conducting the hearing.
The custodian may prepare copies of original records in advance of
testifying for the purpose of making substitution of the original
record, and the reasonable charges for making such copies shall be
taxed as costs of court. If copies are not prepared in advance,
they can be made and substituted at any time after introduction of
the original record, and the reasonable charges for making such
copies shall be taxed as costs of court.
§57-5-4j. Hospital records; evidence of reasonableness of medical
Proof that medical, hospital and doctor bills were paid or
incurred because of any illness, disease or injury shall be prima
facie evidence that such bills so paid or incurred were necessary
§57-5-5. Failure of witness to attend or produce writing.
If any person, after being served with such summons, fail to
attend to give evidence or to produce such writing or document
according to the summons, the court whose clerk issued the summons,
or if it was not issued by the clerk of a court, the circuit court
of the county in which the attendance is desired, or a judge of
such court in vacation, on a special report by the person or
persons before whom there was a failure to attend, on proof that
there was paid to him (if it was required) a reasonable time before
he was required to attend, the allowance for one day's attendance,
and his mileage and tolls, shall, after service of a notice to, or
rule upon him to show cause against it (if no sufficient cause be
shown against it) fine him not exceeding twenty dollars, to the use
of the party for whom he was summoned, and may proceed by
attachment to compel him to attend and give his evidence or produce
such writing or document at such time and place as such court or
judge may deem fit. The witness shall, moreover, be liable to any
party injured for damages.
§57-5-6. Commitment to jail of person attending but refusing to
testify or produce writing.
If a person, after being served with such summons, shall
attend and yet refuse to be sworn, or to give evidence, or to
produce any writing or document required, he may by order of the
court whose clerk issued said summons, or of the person before whom
he was summoned to attend, be committed to jail, there to remain
until he shall, in custody of the jailer, give such evidence or
produce such writing or document.
§57-5-7. Interpreters required.
(a) In any court proceeding wherein a party or witness or
juror cannot readily understand or verbally communicate the English
language because the witness or juror is deaf or a deaf mute or
because of any other hearing impairment, such person shall have the
right to have a qualified interpreter to assist the witness or
juror at every stage of the proceeding. Such right shall also
pertain in any proceeding before administrative boards, commissions
or agencies of this state or any political subdivision or
municipality thereof, and in coroners' inquests and grand jury
(b) The director of the administrative office of the supreme
court of appeals shall establish a program to facilitate the use of
interpreters in courts of this state and in extra-judicial criminal
proceedings as provided for in this section.
(1) The director shall prescribe, determine and certify the
qualifications of persons who may serve as certified interpreters
in courts of this state in proceedings involving the hearing
impaired. Persons certified by the director shall be interpreters
certified by the national registry of interpreters for the deaf, or
the West Virginia registry of interpreters for the deaf or approved
by the chief of services for the deaf and hearing impaired of West
Virginia of the West Virginia division of vocational
rehabilitation, or shall be such other persons deemed by the
director to be qualified by education, training and experience.
The director shall maintain a current master list of all
interpreters certified by the director and shall report annually on the frequency of requests for, and the use and effectiveness of,
(2) Each circuit court shall maintain on file in the office of
the clerk of the court a list of all persons who have been
certified as oral or manual interpreters for the hearing impaired
by the director of the administrative office of the supreme court
of appeals in accordance with the certification program established
pursuant to this section.
(3) In any criminal or juvenile proceeding, or other
proceeding described in section five, article eleven, chapter
fifty-one of this code, the judge of the circuit court in which
such proceeding is pending, or, if such proceeding is in a
magistrate court, then the judge of the circuit court to which such
proceeding may be appealed or presented for judicial review, shall,
with the assistance of the director of the administrative office of
the supreme court of appeals, utilize the services of the most
available certified interpreter, or when no certified interpreter
is reasonably available, as determined by the judge, the services
of an otherwise competent interpreter, if the judge determines on
his own motion or on the motion of a party that such party or a
witness who may present testimony in the proceeding suffers from a
hearing impairment so as to inhibit such party's comprehension of
the proceedings or communication with counsel or the presiding
judicial officer, or so as to inhibit such witness' comprehension
of questions and the presentation of such testimony. The
utilization of an interpreter shall be appropriate at any stage of
the proceeding, judicial or extra-judicial, at which a person would be entitled to representation by an attorney and a waiver of the
right to counsel shall not constitute a waiver of the right to an
interpreter as provided for by this section.
(c) Whenever a qualified interpreter is appointed pursuant to
the provisions of subsection (b) of this section, or to accommodate
a juror, the court shall, at the conclusion of the proceedings or
interrogation, by order, fix the compensation of such interpreter.
The compensation shall include reimbursement for all reasonable and
necessary expenses actually incurred in the performance of such
duties, but expenses shall not be incurred in excess of the
prevailing rate for state employees. In all such appointments
arising from subdivision (3), subsection (b) of this section, the
compensation shall be paid by the state auditor from the fund
administered by the supreme court of appeals for other court costs.
In other proceedings before any circuit or magistrate court,
supreme court of appeals or before any administrative boards,
commissions and agencies, the compensation shall be fixed by such
court, board, commission or agency and paid, within the limit of
available funds, by such court, board, commission or agency.
(d) In any proceeding described in subdivision (3), subsection
(b) of this section, if the circuit judge does not appoint an
interpreter, an individual requiring the services of an interpreter
may seek the assistance of the clerk of the circuit court or the
director of the administrative office of the supreme court of
appeals in obtaining the assistance of a certified interpreter.
(e) Whenever an interpreter is necessary in any court
proceeding because a witness or party speaks only a foreign language or for any other reason, an interpreter shall be sworn
truly to interpret.
§57-5-8. Who may administer oath to witness.
Any person before whom a witness is to be examined may
administer an oath to such witness.
§57-5-9. Administration of oaths or taking of affidavits;
authentication of affidavit made in another state or
country; oaths and affidavits of persons in military
Any judge of this state may administer any oath that is or may
be lawful for any person to take, including oaths of office, and
also may swear any person to an affidavit, and administer an oath
to any person in any proceeding.
Any oath or affidavit required by law, which is not of such a
nature that it must be made otherwise or elsewhere may, unless
otherwise provided, be administered by, or made before, a county
commissioner, notary public, or a commissioner appointed by the
governor, or by the clerk of any court, or, in case of a survey
directed by a court in a case therein pending, by or before the
surveyor directed to execute said order of survey.
An affidavit may also be made before any officer of another
state or country authorized by its laws to administer an oath, and
shall be deemed duly authenticated if it be subscribed by such
officer, with his official seal annexed, and if he have none, the
genuineness of his signature, and his authority to administer an
oath, shall be authenticated by some officer of the same state or
country under his official seal.
Any oath or affidavit required of a person in the military
service of the United States (including the Women's Army Corps,
Women's Appointed Volunteers for Emergency Service, Army Nurse
Corps, Spars, Women's Reserve, or similar women's auxiliary unit
officially connected with such military service of the United States), may be administered by or made before any commissioned
officer of any branch of the military service of the United States,
or any auxiliary unit officially connected with such military
service. Such oath may be taken or affidavit made at any place
either within or outside the United States of America, or any
territory, possession or dependency thereof. The jurat to such
oath and certificate to such affidavit need not state the place
where the same is taken and shall require no seal to be affixed
thereto. The certificate of the officer before whom such oath is
taken or affidavit is made must state his rank, branch of military
service, and identification number, and such certificate may be
substantially in form and effect as follows: IN THE MILITARY
SERVICE OF THE UNITED STATES:
I, ..............., being duly sworn on oath (affirmation), do
swear (affirm) that I am a member of the military service of the
United States (or of ..............., an auxiliary to the military
forces of the United States); that ***, etc.
Taken, subscribed and sworn to before me, ..............., a
commissioned officer in the ............... service of the United
States, by ..............., a member of the military service of the
United States (or of ..............., an auxiliary to the military
forces of the United States), this the .......... day of
(Signature of officer)
(Rank) (Identification Number)
Any oath or affidavit heretofore taken or made by any person
in the military service in substantial compliance with this section
shall be valid.
§57-5-10. Affidavit of nonresidence; affidavit of publication in
In any suit an affidavit that the witness or party resides out
of this state, or is out of it, shall be prima facie evidence of
the fact although such affidavit be made without previous notice.
Where anything is required by any statute to be published in a
newspaper, the certificate of the editor or publisher or affidavit
of any other person shall be admitted as evidence of what is stated
therein as to the publication.
§57-5-11. Disposal of exhibits or articles offered in evidence;
disposal of property in hands of law-enforcement
Any circuit court in this state, or the judge thereof in
vacation, may in its discretion by order entered of record dispose
of by return to the owner thereof, or by destruction, sale, or
otherwise, any exhibit or article introduced or offered in evidence
at the hearing, or upon the trial, of any matter or case before
such court or judge, and remaining in the custody or control of
such court for a period of thirty days after the expiration of the
time within which an appeal may be taken from any final order or
judgment in such matter or case, if no appeal is taken therefrom,
or thirty days, after any final order or judgment of an appellate
court, if such appeal is taken therein: Provided,
That if the
ownership of such exhibit or article be known, the owner shall be
notified and such exhibit or article shall be returned to him if he
Any sale directed hereunder shall be made upon such notice and
terms and by such officer or other person as the court or judge
shall direct. The proceeds of any such sale shall be applied to
the reasonable costs and expenses of such sale as the court or
judge shall allow, and the remainder thereof shall be paid into the
The provisions of this section shall not apply or extend to
the county commission of any county; nor shall any property or
article be disposed of hereunder contrary to any other statute
which expressly provides a different disposition.
§57-5-12. Certain documents deemed duplicates.
A reproduction of a document acquired from the employment of
a system of microphotography, optical discs or computerized
techniques which system does not permit additions, deletions or
changes to the record of the original document contained within the
system shall be deemed to be a duplicate for purposes of admission
into evidence in the courts of this state.
A reproduction deemed a duplicate pursuant to the provisions
of this section shall be authenticated by competent testimony or by
an attestation which shall recite the type of recording system
employed, that such system does not permit additions, deletions or
changes to the record and that the
attestant has actual knowledge of the aforementioned facts.
The provisions of this section shall be construed to provide
an additional method of qualifying original writings or recordings
and duplicates thereof as admissible in evidence, and shall not
replace or derogate any other methods set forth elsewhere in this
code or provided for in the West Virginia rules of evidence as
adopted by the supreme court of appeals.
Note: WV Code updated with legislation passed through the 2012 1st Special Session