CHAPTER 57. EVIDENCE AND WITNESSES.
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.
WVC 57 - 5 - 9
§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
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 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 the
officer, with his or her official seal annexed, and if he or she
have none, the genuineness of his or her signature, and his or her
authority to administer an oath, shall be authenticated by some
officer of the same state or country under his or her official
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 the 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 the 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 the oath
and certificate to the 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 the oath is taken or
affidavit is made must state his or her rank, branch of military
service, and identification number, and the 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.