West Virginia Supreme Court in State vs. Kaufman Continues to Support the Confrontation Clause and Questions Admissibility of Out of Court Statements being Admitted at Trial

On June 22, 2011, the West Virginia Supreme Court released its opinion in the State of West Virginia versus David Wayne Kaufman, an appeal from the Circuit Court of Wood County. This case was a confrontation clause case under the Sixth Amendment of the United States Constitution. In the State vs. Kaufman, the West Virginia Supreme Court issued an opinion with ten syllable points. What is clear is that the West Virginia Supreme Court continued support of the defendant’s right of confrontation under the Sixth Amendment.


The West Virginia Supreme Court found that any admission of extrajudicial testimony under the confrontation clause is not admissible unless they can: 1) demonstrate the unavailability of the witness and 2) prove the reliability of the witness’ out-of-court statement. On the question of whether or not the reliability of an out-of-court statement deals with the exceptions to hearsay, the West Virginia Supreme Court found that you do not have to make an inquiry as to the reliability statement where it falls into a firmly routed hearsay exception. Now this decision is a continuation to follow up Crawford vs Washington, wherein, the United States Supreme Court said that the Sixth Amendment of the United States Constitution and also the West Virginia Constitution, which would be Section 14, Article 3, bars the admission of testimonial witness where the person is not to appear at trial.

Crawford also was supported by the decision of State vs. Mechling, where they said a testimonial statement of a witness who does not appear at trial does not come in unless the witness is unavailable and Mchugh’s had a prior opportunity to cross-examine that witness. Now after Crawford, there was a lot of discussion and opinions around the country as what is testimonial. Now the West Virginia Supreme Court in State vs Kaufman said that a testimonial statement is generally a statement that is made under circumstances which would lead an objective witness to reasonably believe that the statement would be available for use later at trial. This language was taken from syllabus 8 of State vs Mechling.

Now this makes sense, if you think about it, the police officer has taken a statement from someone and the reason they are taking that statement is so they could use it later at trial. They know what the allegations of the crime are, they say they are conducting an investigation, but they are taking statements so they can prove that someone is guilty of committing a crime. During the trial, what used to happen, is the police officer would just get up and read these statements and the Prosecutor would admit them into evidence and the jury, from that, could convict a person. Is that fair?

Well the person who is sitting there, the defendant, who has been charged with a crime, has no ability to question the person that gave the statement to the police officer. To see if the statement was true or if the witness was just making things up. The US Supreme Court and now the West Virginia Supreme Court have consistently said that is not fair under your Six Amendment Right of Confrontation. If someone says that you committed a crime and that you violated the law, you have the right to ask that person questions under oath, face-to-face, in a court of law and at trial.

In State vs Kaufman, our Supreme Court has said you need to sit down and look at the narrative and each separate statement to determine admissibility under the rules of hearsay, and also, to see if the statement under West Virginia Rules of Evidence 401, 402 would be substantially outweighed by the dangers of unfair prejudice. Therefore, it could be excluded under the West Virginia Rules of Evidence 403.

Some statements that are made out of court are strictly designed to be prejudicial to the defendant. They are given to the police officer to advance a bias and prejudicial viewpoint. These are not reliable and they are not proper evidence of the facts to be considered. In Kaufman the Court found that the diary, which was admitted at trial, was not properly evaluated under the rules of hearsay and they overruled the conviction.

In the State vs Kaufman, this was a First Degree Murder case, wherein, Mr. Kaufman’s wife was found dead. The controversial part of the evidence was out-of-court statements that were made by the victim to her children and to her daughter’s boyfriend, and a diary that was introduced into the trial itself.

The diary, which was improperly admitted into the trial, was a 63 page diary. There was not any direct evidence that he killed his wife but the jury convicted him based on out-of-court statements, the diary, and the fact that they were having problems. The Supreme Court looked at the 63 page diary, did not find the diary to be testimonial, but did find that it was improperly admitted into the trial of this matter.

This case came out before the Bullcoming vs. New Mexico case, a United States Supreme Court case, and shows that the West Virginia Supreme Court of Appeals is very concerned about hearsay evidence being introduced at trial. This is why we have the Rules of Evidence and the Rules of Criminal Procedure to ensure that someone does get a fair trial and that no one is convicted merely on suspicion of guilt without some actual proof.