Introduction Despite 50 years of development experience, fundamental questions remain unanswered.
Scope, Purpose and Construction Scope These rules govern the procedure in all criminal proceedings in the circuit courts of West Virginia, as defined in Rule 54 c ; and whenever specifically provided in one of the rules, to criminal proceedings before West Virginia magistrates.
They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.
Preliminary Proceedings The complaint The complaint is a written statement of the essential facts constituting the offense charged.
The complaint shall be presented to and sworn or affirmed before a magistrate in the county where the offense is alleged to have occurred. Unless otherwise provided by statute, the presentation and oath or affirmation shall be made by a prosecuting attorney or a law enforcement officer showing reason to have reliable information and belief.
If from the facts stated in the complaint the magistrate finds probable cause, the complaint becomes the charging instrument initiating a criminal proceeding. The magistrate may restrict the execution of the warrant to times during which a magistrate is available to conduct the initial appearance.
Within the discretion of the magistrate a summons instead of a warrant may issue. More than one warrant or summons may issue on the same complaint.
If a defendant fails to appear in response to the summons, a warrant shall issue. It shall describe the offense charged in the complaint.
It shall command that the defendant be arrested and brought before the nearest available magistrate of the county in which the warrant is executed. The summons may be served by any person authorized to serve a summons in a civil action.
The officer need not have the warrant at the time of the arrest, but upon request the officer shall show the warrant to the defendant as soon as possible. If the officer does not have the warrant at the time of the arrest, the officer shall then inform the defendant of the offense charged and of the fact that a warrant has been issued.
The summons shall be served upon a defendant by delivering a copy to the defendant personally, or by leaving it at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein and by mailing a copy of the summons to the defendant's last known address.
At the request of the attorney for the state any unexecuted warrant shall be returned to and canceled by the magistrate by whom it was issued.
On or before the return day the person to whom a summons was delivered for service shall make return thereof to the magistrate before whom the summons is returnable.
At the request of the attorney for the state, made at any time while the complaint is pending, a warrant returned unexecuted and not canceled or a summons returned unserved or a duplicate thereof may be delivered by the magistrate to an authorized person for execution or service.
Initial appearance before the magistrate; bail In general. If a person arrested without a warrant is brought before a magistrate, a complaint shall be filed forthwith which shall comply with the requirements of Rule 4 a with respect to the showing of probable cause.
When a person, arrested with or without a warrant or given a summons, appears initially before the magistrate, the magistrate shall proceed in accordance with the applicable subdivision of this rule.
Misdemeanor offense triable before a magistrate. Offenses not triable by the magistrate. The magistrate shall inform the defendant of the complaint, and of any affidavit filed therewith, of the right to retain counsel, of the right to request the assignment of counsel if the defendant is unable to obtain counsel, and of the general circumstances under which the defendant may secure pretrial release.
The magistrate shall inform the defendant that he or she is not required to make a statement and that any statement made by the defendant may be used against him or her. The magistrate shall also inform the defendant of the right to a preliminary examination. The magistrate shall allow the defendant reasonable time and opportunity to consult with counsel or with at least one relative or other person for the purpose of obtaining counsel or arranging bail as provided by statute or in these rules and shall admit the defendant to bail as provided by statute or in these rules.
If the offense is to be presented for indictment, a defendant is entitled to a preliminary examination, unless waived.Sociology Ch.
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