2-The Legislature should get out of the evidentiary rule making business, and if it doesn’t the Supreme Court should make it

Article 5 of the West Virginia Constitution provides as follows:

The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the Legislature.

Article 8  § 3 of the Constitution provides that the Supreme Court “shall have power to promulgate rules for all cases and proceedings, civil and criminal, for all of the courts of the state relating to writs, warrants, process, practice and procedure, which shall have the force and effect of law.”  In State Farm Fire & Cas. Co. v. Prinz, the Supreme Court found that evidentiary rules fall within the Supreme Court’s domain and therefore struck down the “dead man’s statute.” 231 W. Va. 96, syl. pt. 6 (2013).  The purpose of the “dead man' statute,” as codified in West Virginia Code § 57-3-1 , was to “prevent the injustice that would result from a surviving party to a transaction testifying favorably to himself or herself and adversely to the interest of a decedent, when the decedent's representatives would be hampered in attempting to refute the testimony by reason of the decedent's death.”  Meadows v. Meadows, 196 W. Va. 56, 60 (1996).

Prior to Prinz, the Court held, “The West Virginia Rules of Evidence remain the paramount authority in determining the admissibility of evidence in circuit courts. These rules constitute more than a mere refinement of common law evidentiary rules, they are a comprehensive reformulation of them.”  State v. Derr, 192 W. Va. 165, syl. pt. 7 (1994).   In the Comments related to Rule 412 of the West Virginia Rules of Evidence, it states:

Rule 412 is a new “rape shield” rule. The rule is intended to provide the standard for the introduction of evidence of a victim’s sexual history. The rule supersedes the rape shiled statute. [West Virginia] Code §61-8B-11, to the exgtent that the statute is in conflict with the rule.

In other words, the Court found that the “rape shield” statute was an unconstitutional violation of the separation of powers, but believed that the concept of a rape shield rule was appropriate.  Fair enough, you ask, so why the fuss?  Thanks for asking.  § 53-3-3 (providing for spousal immunity), and § 53-3-4 (providing for marital privilege of communications between married persons).

West Virginia Code § 53-3-3 states:

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, grandchild, father, mother, sister or brother of either of them, or minor, as defined in §2-2-10 of this code, or any person deemed incompetent by mental disease, defect, or other disability. 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.

This code rightly prevents a spouse from being compelled to testify against a spouse; however, how is it that the legislature has the authority to address this issue? Is not the issue of admissibility and privilegeone left for the Supreme Court?

West Virginia Code § 53-3-4 states:

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 marriage existed.

In other words, the legislature is addressing what can come into evidence and who can be called.  Now, mind you, I am in favor of the “spousal immunity” and the “marital privilege,” but not one that can be abrogated or modified by the legislature.  See W. Va. Code § 61-8D-8 (“Husband and wife are competent witnesses in any proceeding under this article [on child abuse] and cannot refuse to testify on the grounds of their marital relationship or the privileged nature of their communications.”) 

Consequently, in any cases involving the communications between spouses it is important to seek protection of the communications between the spouses under the “common law” spousal immunity and marital privilege.  The argument being that the statutory protection does not do enough to protect the married couple’s rights, and more importantly is a violation of the separation of powers by the legislature.  Anytime the legislature prohibits evidence in the Court, counsel should raise the issue of separation of powers.