hearsay rule in West Virginia

2011In a dissent to State v. Phillips, 194 W.Va. 569 , 461 S.E.2d 75 (1995) (Workman, J., dissenting), *626 I admonished the majority for failing to determine, as a preliminary matter, whether certain out-of-court statements by an unavailable witness were hearsay before determining whether those statements were admissible as an exception to the hearsay rule.

2011In a dissent to State v. Phillips, 194 W.Va. 569 , 461 S.E.2d 75 (1995) (Workman, J., dissenting), *626 I admonished the majority for failing to determine, as a preliminary matter, whether certain out-of-court statements by an unavailable witness were hearsay before determining whether those statements were admissible as an exception to the hearsay rule.

2026Va. 104, 106 , 358 S.E.2d 188, 190 (1987) (“Rule 803(2) of the West Virginia Rules of Evidence correctly contains the heart of the hearsay exception that was formerly called a spontaneous declaration and which is now termed the excited utterance exception to the hearsay rule.”). 10 In the case before us now, the circuit court permitted the Petitioner to adduce testimony in front of the jury indicating that Tiffany McCune did not have a reputation for truthfulness. 19 discretion in reaching its conclusion.

2000See also Syl. pt. 1, in part, State v. Smith, 178 W.Va. 104 , 358 S.E.2d 188 (1987) ("Rule 803(2) of the West Virginia Rules of Evidence correctly contains the heart of the hearsay exception that was formerly called a spontaneous declaration and which is now termed the excited utterance exception to the hearsay rule.").

2026Va. at 2 , 393 S.E.2d at 222 (holding that out-of-court statements are admissible without implicating the hearsay rule when offered for purposes such as “motive, intent, state-of-mind, identification or reasonableness of the party’s action[,]” but not for the truth of the content). 5 181, 189-90 (1990) (emphasizing that prior statements admitted solely for impeachment purposes “may only be considered as bearing on the witness’s credibility and not as substantive evidence[]” and that the trial court bears an affirmative obligation to instruct the jury accordingly); State v. James B., Sr., 204 W

2026Va. at 2 , 393 S.E.2d at 222 (holding that out-of-court statements are admissible without implicating the hearsay rule when offered for purposes such as “motive, intent, state-of-mind, identification or reasonableness of the party’s action[,]” but not for the truth of the content). 5 181, 189-90 (1990) (emphasizing that prior statements admitted solely for impeachment purposes “may only be considered as bearing on the witness’s credibility and not as substantive evidence[]” and that the trial court bears an affirmative obligation to instruct the jury accordingly); State v. James B., Sr., 204 W

2017“The underlying rationale of the hearsay rule is to prevent the admission into evidence of unreliable or untrustworthy evidence.” State v. Boyd, 167 W.Va. 385, 397 , 280 S.E.2d 669, 679 (1981).

2017“The underlying rationale of the hearsay rule is to prevent the admission into evidence of unreliable or untrustworthy evidence.” State v. Boyd, 167 W.Va. 385, 397 , 280 S.E.2d 669, 679 (1981).

2013We find that the trial court properly admitted the testimony of Ms. Hasty, subject to this Court’s holding in Syllabus Point 9 of State v. Pettrey, 209 W.Va. 449 , 549 S.E.2d 323 (2001), which states, When a social worker, counselor, or psychologist is trained in play therapy and thereafter treats a child abuse victim with play therapy, the therapist’s testimony is admissible at trial under the medical diagnosis or treatment exception to the hearsay rule, West Virginia Rule of Evidence 803(4), if the declarant’s motive in making the statement is consistent with the purpose of promoting treatme

2013We find that the trial court properly admitted the testimony of Ms. Hasty, subject to this Court’s holding in Syllabus Point 9 of State v. Pettrey, 209 W.Va. 449 , 549 S.E.2d 323 (2001), which states, When a social worker, counselor, or psychologist is trained in play therapy and thereafter treats a child abuse victim with play therapy, the therapist’s testimony is admissible at trial under the medical diagnosis or treatment exception to the hearsay rule, West Virginia Rule of Evidence 803(4), if the declarant’s motive in making the statement is consistent with the purpose of promoting treatme

2011However, where such statements are not offered under a hearsay exception considered to be "firmly-rooted," then the statements are presumptively unreliable and must be excluded "at least absent a showing of particularized guarantees of trustworthiness.'" James Edward S., 184 W.Va. at 414 , 400 S.E.2d at 849 (internal quotations omitted).

2011However, where such statements are not offered under a hearsay exception considered to be "firmly-rooted," then the statements are presumptively unreliable and must be excluded "at least absent a showing of particularized guarantees of trustworthiness.'" James Edward S., 184 W.Va. at 414 , 400 S.E.2d at 849 (internal quotations omitted).

2026The official comment to Federal Rule of Evidence 803(1) and (2) explains that the present sense impression exception to the hearsay rule is based on the theory that 8 We note that the West Virginia Rules of Evidence are patterned upon the Federal Rules of Evidence, and this Court has “repeatedly recognized that when codified procedural rules or rules of evidence of West Virginia are patterned after the corresponding federal rules, federal decisions interpreting those rules are persuasive guides in the interpretation of our rules.” State v. Sutphin, 195 W.

2025Va. 551, 560 , 466 S.E.2d 402, 411 (1995) (“Hearsay is not admissible unless it falls under one of the exceptions to the hearsay rule.

2023Va. 58 , 63–64, 331 S.E.2d 496, 502 (1985) (“A criminal defendant's confessions or admissions have historically been admitted in evidence to prove the truth of the matters asserted therein as an exception to the hearsay rule, subject to an initial inquiry that the defendant's constitutional rights were not violated and the statements were freely and voluntarily made.”) (footnotes omitted); Syl.

2015Va. 58 , 331 S.E.2d 496 (1985) (“A criminal defendant's confessions or admissions have historically been admitted in evidence to prove the truth of the matters asserted therein as an exception to the hearsay rule, subject to an initial inquiry that the defendant's constitutional rights were not violated and the statements were freely and voluntarily made.”).

2000Explaining the rationale underlying the rule version of this hearsay exception, this Court stated succinctly in State v. Jones, 178 W.Va. 519, 522 , 362 S.E.2d 330, 333 (1987), that "[t]he excited utterance exception is predicated on the theory that a person stimulated by the excitement of an event and acting under the influence of that event will lack the reflective capacity essential for fabrication." Thus, "a guarantee of reliability surrounds statements made by one who participates in or observes a startling event, provided they are made while under the stress of excitement." Smith, 178 W.

2000Explaining the rationale underlying the rule version of this hearsay exception, this Court stated succinctly in State v. Jones, 178 W.Va. 519, 522 , 362 S.E.2d 330, 333 (1987), that "[t]he excited utterance exception is predicated on the theory that a person stimulated by the excitement of an event and acting under the influence of that event will lack the reflective capacity essential for fabrication." Thus, "a guarantee of reliability surrounds statements made by one who participates in or observes a startling event, provided they are made while under the stress of excitement." Smith, 178 W.

1989(A) his [or her] own statement, in either his [or her] individual or a representative ca-pacity_” “Pursuant to this rule ‘admissions by a party-opponent are not within the hearsay rule at all and for this reason are admissible as substantive evidence unless some other exclusionary rule applies.’ ” Heydinger v. Adkins, 178 W.Va. 463 , 360 S.E.2d 240, 245 (1987) (citing F. Cleckley, Handbook on Evidence for West Virginia Lawyers § 8.5(A) at 469 (2d ed. 1986)).

1989(A) his [or her] own statement, in either his [or her] individual or a representative ca-pacity_” “Pursuant to this rule ‘admissions by a party-opponent are not within the hearsay rule at all and for this reason are admissible as substantive evidence unless some other exclusionary rule applies.’ ” Heydinger v. Adkins, 178 W.Va. 463 , 360 S.E.2d 240, 245 (1987) (citing F. Cleckley, Handbook on Evidence for West Virginia Lawyers § 8.5(A) at 469 (2d ed. 1986)).

1982The common-law business entry exception to the hearsay rule has long been recognized in West Virginia, see, e.g., State v. Martin, 102 W.Va. 107 , 134 S.E. 599 (1926); Marfuti v. Daniels, 99 W.Va. 673 , 129 S.E. 709 (1925); State v. LaRue, 98 W.Va. 677 , 128 S.E. 116 (1925); Deitz v. McVey, 77 W.Va. 601 , 87 S.E. 926 (1916); Griffith v. American Coal Co., 75 W.Va. 686 , 84 S.E. 621 (1915); West Virginia Architects & Builders v. Stewart, 68 W.Va. 506 , 70 S.E. 113 (1911), and was recently discussed at length in Tedesco v. Weirton General Hospital, 160 W.Va. 466 , 235 S.E.2d 463 (1977), and Hill

1982The common-law business entry exception to the hearsay rule has long been recognized in West Virginia, see, e.g., State v. Martin, 102 W.Va. 107 , 134 S.E. 599 (1926); Marfuti v. Daniels, 99 W.Va. 673 , 129 S.E. 709 (1925); State v. LaRue, 98 W.Va. 677 , 128 S.E. 116 (1925); Deitz v. McVey, 77 W.Va. 601 , 87 S.E. 926 (1916); Griffith v. American Coal Co., 75 W.Va. 686 , 84 S.E. 621 (1915); West Virginia Architects & Builders v. Stewart, 68 W.Va. 506 , 70 S.E. 113 (1911), and was recently discussed at length in Tedesco v. Weirton General Hospital, 160 W.Va. 466 , 235 S.E.2d 463 (1977), and Hill

2026This argument misses the point of the excited utterance exception. “[W]e have consistently recognized that an excited utterance or spontaneous declaration9 is admissible as an exception to the hearsay rule under the premise that a person stimulated by the excitement of an event and acting under the influence of that event will lack the reflective capacity essential for fabrication.” State v. Farmer, 185 W.

1992See State v. Farmer, 185 W.Va. 232 , 406 S.E.2d 458 (1991) (per curiam) for a discussion of the history of the excited utterance exception to the hearsay rule. 19 .Defendant also alleges three instances of jury misconduct.

2026Va. 192, 196 , 255 S.E.2d 552, 554 (1979) (citation omitted). 6 the listener” rationale to become a vehicle for circumventing both the hearsay rule and a defendant’s right to a fair trial.

2026Va. 192, 196 , 255 S.E.2d 552, 554 (1979) (citation omitted). 6 the listener” rationale to become a vehicle for circumventing both the hearsay rule and a defendant’s right to a fair trial.

2026Va. at 2 , 393 S.E.2d at 222 (holding that out-of-court statements are admissible without implicating the hearsay rule when offered for purposes such as “motive, intent, state-of-mind, identification or reasonableness of the party’s action[,]” but not for the truth of the content). 5 181, 189-90 (1990) (emphasizing that prior statements admitted solely for impeachment purposes “may only be considered as bearing on the witness’s credibility and not as substantive evidence[]” and that the trial court bears an affirmative obligation to instruct the jury accordingly); State v. James B., Sr., 204 W

2026Va. at 2 , 393 S.E.2d at 222 (holding that out-of-court statements are admissible without implicating the hearsay rule when offered for purposes such as “motive, intent, state-of-mind, identification or reasonableness of the party’s action[,]” but not for the truth of the content). 5 181, 189-90 (1990) (emphasizing that prior statements admitted solely for impeachment purposes “may only be considered as bearing on the witness’s credibility and not as substantive evidence[]” and that the trial court bears an affirmative obligation to instruct the jury accordingly); State v. James B., Sr., 204 W

2025Thus, intent may be shown by evidence of any relevant fact and statement of the parties not barred by the hearsay rule.” Burnside v. Burnside, 194 W.

2024Thus, intent may be shown by evidence of any relevant fact and statement of the parties not barred by the hearsay rule.” Burnside v. Burnside, 194 W.

1991Prior to our adoption of the Rules of Evidence, this Court recognized the spontaneous declaration exception to the hearsay rule in State v. Young, 166 W.Va. 309 , 273 S.E.2d 592 (1980).

1991Prior to our adoption of the Rules of Evidence, this Court recognized the spontaneous declaration exception to the hearsay rule in State v. Young, 166 W.Va. 309 , 273 S.E.2d 592 (1980).

1991In syllabus point 2 of Young , we reiterated six factors, outlined in Ward v. Raleigh County Park Board, 143 W.Va. 931 , 105 S.E.2d 881 (1958), that should be considered by the trial court in determining whether a statement or declaration is admissible as an excited utterance exception to the hearsay rule: An alleged spontaneous declaration must be evaluated in light of the following factors: (1) The statement or declaration made must relate to the main event and must explain, elucidate, or in some way characterize that event; (2) it must be a natural declaration or statement growing out of th

1991In syllabus point 2 of Young , we reiterated six factors, outlined in Ward v. Raleigh County Park Board, 143 W.Va. 931 , 105 S.E.2d 881 (1958), that should be considered by the trial court in determining whether a statement or declaration is admissible as an excited utterance exception to the hearsay rule: An alleged spontaneous declaration must be evaluated in light of the following factors: (1) The statement or declaration made must relate to the main event and must explain, elucidate, or in some way characterize that event; (2) it must be a natural declaration or statement growing out of th

1999Green v. Georgia, 442 U.S. 95, 97 , 99 S.Ct. 2150, 2151 , 60 L.Ed.2d 738, 741 (1979) (“Regardless of whether the proffered testimony comes within Georgia’s hearsay rule, under the facts of this case its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment.”); Chambers v. Mississippi, 410 U.S. 284, 302 , 93 S.Ct. 1038, 1049 , 35 L.Ed.2d 297, 313 (1973) ("[W]here constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.”). 19 .

1999Green v. Georgia, 442 U.S. 95, 97 , 99 S.Ct. 2150, 2151 , 60 L.Ed.2d 738, 741 (1979) (“Regardless of whether the proffered testimony comes within Georgia’s hearsay rule, under the facts of this case its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment.”); Chambers v. Mississippi, 410 U.S. 284, 302 , 93 S.Ct. 1038, 1049 , 35 L.Ed.2d 297, 313 (1973) ("[W]here constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.”). 19 .

1999See Roberts, 448 U.S. at 66 , 100 S.Ct. 2531 ; James Edward S., 184 W.Va. at 410 , 400 S.E.2d at 845 , syl. pt. 5; accord White, 502 U.S. at 356-57 , 112 S.Ct. 736 (stating “where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied” and observing “a statement that qualifies for admission under a ‘firmly rooted’ hearsay exception is so trustworthy that adversarial testing can be expected to add little to its reliability”) (citing Idaho v. Wright, 497 U.S. 805, 820-21 , 110 S.Ct. 3139 , 111

1999See Roberts, 448 U.S. at 66 , 100 S.Ct. 2531 ; James Edward S., 184 W.Va. at 410 , 400 S.E.2d at 845 , syl. pt. 5; accord White, 502 U.S. at 356-57 , 112 S.Ct. 736 (stating “where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied” and observing “a statement that qualifies for admission under a ‘firmly rooted’ hearsay exception is so trustworthy that adversarial testing can be expected to add little to its reliability”) (citing Idaho v. Wright, 497 U.S. 805, 820-21 , 110 S.Ct. 3139 , 111

2018Pt. 4, State v. Morris, 227 W.Va. 76, 78 , 705 S.E.2d 583, 585 (2010).

2018Pt. 4, State v. Morris, 227 W.Va. 76, 78 , 705 S.E.2d 583, 585 (2010).

2003In syllabus point six of Mason , this Court further explained: “For purposes of the Confrontation Clause found in the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution, no independent inquiry into reliability is required when the evidence falls within a firmly rooted hearsay exception.” In Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), the United States Supreme Court clarified that hearsay evidence that falls under a firmly rooted exception to the hearsay rule or alternatively, when such evidence is accompa

2003In syllabus point six of Mason , this Court further explained: “For purposes of the Confrontation Clause found in the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution, no independent inquiry into reliability is required when the evidence falls within a firmly rooted hearsay exception.” In Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), the United States Supreme Court clarified that hearsay evidence that falls under a firmly rooted exception to the hearsay rule or alternatively, when such evidence is accompa

1978Appellant urges us to adopt yet another exception to the hearsay rule — namely an admission against penal interest which was specifically rejected in State v. Poe, 69 W.Va. 260 , 71 S.E. 177 (1911) which held that a declaration against penal interest is not enough to overcome the hearsay barrier.

1978Appellant urges us to adopt yet another exception to the hearsay rule — namely an admission against penal interest which was specifically rejected in State v. Poe, 69 W.Va. 260 , 71 S.E. 177 (1911) which held that a declaration against penal interest is not enough to overcome the hearsay barrier.