Phillip Gray (“Gray” or “Appellant”) is appealing his conviction to Fayette County Circuit Court for supplying a controlled substance. Gray submits that the notes written by the arresting police officer should not have been admitted into evidence against Gray because the notes were intended solely to refresh the officer`s memory and because the content of the notes was hearsay. After a thorough review of the minutes, we uphold the lower court`s decision. (1) Movement. If a party intends to present evidence under section 412(b) of the Regulations, it must: The new Rule 502 codifies and simplifies the operation of waiver where documents and conversations are relevant in multiple cases and dispels confusing case law. 47 It contains waiver rules in several actions, including those outside West Virginia. 48 In addition, the new rule outlines the following factors, which will now be used to determine when accidental disclosure does not act as a waiver: (1) “The holder of the privilege or protection has taken reasonable steps to prevent the disclosure” and (2) “The holder has taken reasonable steps to correct the error without delay.” 49 This new rule was intended to enable practitioners to better foresee how waiver works where several proceedings are pending and accidental disclosure has occurred. Footnote 3 3 Hearsay is defined as “a statement other than that made by the Notifier during testimony at trial or hearing and that is presented as evidence to prove the truth of the alleged case.” West Virginia Rule of Evidence 801(c) [1994]. Hearsay is not permitted unless it falls within one of the exceptions listed in Rules 803 and 804 of the West Virginia Rules of Evidence. In limine requests on legal issues presented in a vacuum are often frivolous.

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. 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. The only significant change to this rule concerns the new third and final sentence. 29 Proof of third-party liability insurance may now be introduced and may be admissible `against a party who raises controversially the issues of poverty, insolvency or financial situation of the party`. 30 Moreover, proof of civil liability insurance intended to prove fault is not admissible. 31 Where measures are taken which would have made it less likely that past injury or damage would occur, evidence of subsequent measures is not admissible to demonstrate: 2. “The applicant or the applicant at fault may not complain of an error in the admissibility of the evidence he has presented or produced, and this applies even to the defendant in a criminal case”.

Syl. Teil 2, Staat v. Bowman, 155 W. Va. 562, 184 S.E.2d 314 (1971). Syl. Teil 2, Staat v. McWilliams, 177 W. Va. 369, 352 S.E.2d 120 (1986). Professor Cleckley explains that Rule 106 is intended to ensure “that the presentation of a written or recorded statement accurately reflects its true meaning”.

See F. Cleckley, Handbook on Evidence for West Virginia Lawyers Sec. 1-7(C)(6) (3. Auflage, 1994). While Professor Cleckley notes that the rest of the letter “may need to be admissible under another part of the rules of evidence,” he also acknowledges that “if clarification is needed, it appears that other evidence should take precedence over the exclusion rules.” “Rule 106 shall not be construed as permitting the admissibility of inadmissible evidence unless it is necessary to explain fairly what the other party has caused.” See footnote 7 7 COMMENTARY ON RULE 301 Rule 301 is reproduced verbatim from its federal equivalent, with the exception of the phrase “and procedures not otherwise provided for by law or in these Regulations” from the state provision. The revised rule is essentially the same as the current state rule. Where a statement by hearsay — or a statement described in rule 801(d)(2)(C), (D) or (E) — has been admitted into evidence, the credibility of the applicant may be challenged by evidence and then supported by evidence that would have been admissible for that purpose had the applicant testified. The court may admit evidence of the contradictory statement or conduct of the declarant, regardless of when it took place or whether the declarant had an opportunity to explain or deny it.

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