Focusing the majority opinion on the 404(b) specificity requirement is a positive step in ensuring that criminal convictions are based on direct evidence of a particular offence, rather than on the principle that “the kind of person does these things.” The proponent may use a copy to prove the contents of an official document – or a document registered or filed in a legally permitted public office – if the following conditions are met: the record or document is otherwise permitted; and the copy is certified in Rule 902(4) or attested by a witness who compared it with the original. If no such copy can be obtained with reasonable care, the sponsor may use other evidence to prove the content. (A) submit an application detailing the evidence and indicating the purposes for which it is to be presented; (B) do so at least 14 days before trial, unless the court sets another date for cause; (c) serve the application on all parties; and (D) notify the victim or, if applicable, the victim`s guardian or representative. As mentioned earlier, Mr. Caton argues that the state and the district court have not identified the exact purpose for which 404(b) evidence is presented. However, contrary to Mr. Cato`s assertions, we note that the state went beyond simply reciting a litany of reasons for admitting 404(b) evidence. In the “STATE MEMORANDUM IN SUPPORT OF THE ADMISSION OF EVIDENCE 404 (B)”, the State stated that a grand jury trial was held in Cabell County on February 22, 1990. The State provided evidence of the murder of Kathy McGinnis and the alleged hijacking of the accused by the Nighbert Land Company from January 1987 to June 1989. The grand jury issued an indictment charging the defendant with embezzlement and first-degree murder.
A warrant for the arrest was issued and executed on the same day against the accused. 3 In such a case, if a defendant does not expressly take a stand or denies the element of intent while admitting touching it, the prosecution would not normally be able to provide evidence of other sexual offences – because intent is not a specifically questioned fact. And in most cases, the inference of an unlawful motive can be drawn fairly from the evidence of the act itself – if the accused does not admit contact. In other words, if a defendant denies being present completely or denies any contact with a defendant SHOULD be a “VICTIM,” denial does not “open the door” to evidence 404(b) of other unlawful sexual touching to show intent or motive.1 To argue otherwise would be tantamount to approving the introduction of a defendant`s “rap sheet” as Exhibit 1 in any prosecution. 13 W. Va. Fed. R. Evid. 404 (b) (2) (A) (“A party seeking the admission of evidence under this subsection shall: give reasonable notice of the general nature and the precise and precise purpose for which the evidence will be presented by the party at trial.”); Syl.
Pt. 1, McGinnis, 455 S.E.2d to 520. The new Rule 611 is included in this section because it refuses to comply with federal regulations. The new Rule 611 continues the West Virginia tradition regarding the scope of cross-examination. 58 Rule 611(b) continues to permit full cross-examination in any relevant matter where the witness is a party and gives the Court the discretion to conduct similar cross-examination with a non-party witness. 59 This provision differs from Federal Rule 611, which only permits cross-examination on matters dealt with during direct processing. 60 In response to Mr M. Cato that, notwithstanding our direction in McGinnis, the State merely provided a list of uses of Article 404(b) evidence, without specifying how the evidence will suffice for that use, and our observation of a disturbing trend among Article 404 evidentiary advocates, (b), not to establish an explicit link between the evidence referred to in Article 404(b) and the facts or issues, which must be proved by its use, I take this opportunity to consider McGinnis` assertion that `the precise and precise purpose for which the evidence is presented is clear from the Protocol`. Syl. Pt. 1, 193 W.Va. 147, 455 p.E.2d 516.
In this regard, we believe that the sponsor of 404(b) evidence must prove that this evidence will help “prove a fact that the defendant has disputed or is likely to challenge, or a fact that the legal elements require the government to prove.” United States v. Merriweather, 78 F.3d 1070, 1076 (6th Cir.1996). In other words, 2. If an offer of evidence is made pursuant to Rule 404(b) of the West Virginia Rules of Evidence, the trial court shall decide its admissibility in accordance with Rule 104(a) of the West Virginia Rules of Evidence. Before admitting evidence, the trial court should hold a hearing in camera, as in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the defence counsel`s statements and arguments, the trial court must satisfy itself that the acts or conduct took place and that the accused committed them. If, by predominating the evidence, the trial court does not establish that the acts or conduct were committed or that the defendant committed them, the evidence should be excluded under Rule 404(b). If sufficient evidence has been adduced, the trial court must determine the relevance of the evidence under West Virginia Rules 401 and 402 and establish the balance required by Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that the evidence is admissible under paragraph 404(b) of the Regulations, it must inform the jury of the limited purpose for which the evidence was admitted. A limiting direction should be given at the time of taking evidence, and we recommend that it be repeated in the general indictment of the trial court to the jury at the end of the taking of evidence.
Hearsay shall not be permitted, except as provided for in this Regulation. The court may exclude relevant evidence if its probative value is substantially outweighed by the risk of one or more of the following: unfair disadvantage, confusion of issues, deception of jurors, undue delay, loss of time or unnecessary presentation of cumulative evidence. This is the new rape protection rule taken from Federal Rule 412. 33 Although this rule is entirely new to West Virginia`s rules of evidence, its application is not. 34 Section 61-8b-11 of the West Virginia Code already covered almost everything the new Rule 412 does. 35 The main differences lie in the procedural instructions. These instructions require a request informing the other party of the provider`s intention to use evidence of sexual behavior in a rape case. 36 This will make it easier for the Court to decide on the appropriate use of evidence outside the presence of the jury. In particular, if section 61-8b-11 contradicts new rule 412, the rule of evidence prevails. 37 On 16 October 2002, Jason L. Caton (`M.
Cat. Cato”) was named as a defendant on four counts in an indictment, alleging that he sexually abused two different women on two different occasions1 and that on a third occasion he abducted another woman in order to sexually abuse her.2 M. Cato filed a motion to separate the charges for trial, and the state argued in response that if the charges were separated, it intended to present evidence of each of the offenses under Rule 404(b) of the West Virginia Rules of Evidence at each trial. By order of 10 July 2003, the trial court granted Mr. Caton`s claim for compensation and provisionally decided that it would admit the evidence referred to in section 404(b)(3). The boilerplate and generalized objections in motions in limine are insufficient and amount to raising no objections and will not preserve errors. For example, a motion that simply asks the trial court to prohibit the opposing party from adducing hearsay evidence or mentioning insurance at trial is a waste of judicial resources. In general, an in limine application should not be made (or approved) until the trial court has received the appropriate context and there is sufficient evidence to enable the trial court to make an informed decision. COMMENTARY ON ARTICLE 106 Article 106 is reproduced verbatim by its federal counterpart, with the exception of the use of the word “request” instead of “required” in the first sentence.
The trial court should limit the initiation of another party of a written or recorded statement by an opposing party to information that is relevant or that assists the jury in putting the written or recorded testimony in context. The other party does not have the absolute right to use the entire written or recorded statement as evidence. It is generally accepted that “a prohibition decision is not issued to prevent a mere misuse of power by a court of first instance. It is issued only if the trial court does not have jurisdiction or if that jurisdiction exceeds its legitimate powers. W. Va.Code, 53-1-1. Syl. Pt. 2, Staat ex rel. Sencindiver, 160 W.Va.
314, 233 S.E.2d 425 (1977). In the pending case, Mr Caton submits, in essence, that the District Court exceeded its legitimate powers in deciding to admit the impugned evidence. In point 4 of the curriculum of the judgment in State ex rel. Berger, we set the standard for determining whether a prohibition order should be made against a trial court that exceeds its jurisdiction as follows: In State v. McGinnis, 11 The West Virginia Supreme Court has set out the requirements a party must meet if it intends to: Use crimes, injustices and other acts as evidence of character.