Question: 1. Admissibility of Evidence

This question focuses on decisions which have to be made by trial courts in determining the admissibility of evidence which is remote in nature.

In Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410 (1945), and State v. Duell, 175 W.Va. 233, 332 S.E.2d 246 (1985), the Supreme Court said, "Whether evidence offered is too remote to be admissible upon the trial of a case is for the trial court to decide in the exercise of a sound discretion; and its action in excluding or admitting the evidence will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion."

In State v. Gwinn, 169 W.Va. 456, 288 S.E.2d 533 (1982), the Court said, "As a general rule, remoteness goes to the weight to be accorded the evidence by the jury, rather than to admissibility."

In light of the statements above:

- Evaluate the circumstances in which courts "in the exercise of a sound discretion" may decide that the evidence is too remote to be admissible. Provide scenarios to illustrate such situations.

- Explain, and support with the scenarios, the meaning of the second statement, "As a general rule, remoteness goes to the weight to be accorded the evidence by the jury, rather than to admissibility."

2. Witness Testimonies

In this question you will be asked to evaluate the testimony of four witnesses as to probative value and admissibility.

Testimonies:

1) The witness testifies that he saw John leaving the scene of the shooting-the witness heard shooting and then saw John running.

2) The witness testifies that he saw someone wearing a mask-the witness said that the mask did not allow him to recognize the person but the voice and the manner of walking were similar to John's.

3) The witness found a gun at the scene of the shooting, but did not see anyone. The witness's fingerprints were found on the gun.

4) The witness testifies that he overheard someone talking on the phone. That "someone" said that that he was going to the place where the shooting took place and that he had to take the gun.

Study the testimonies from witnesses given above and do the following:

- Identify testimonies that relate to direct and circumstantial evidence.

- Evaluate the probative value of each testimony.

- Identify which testimony will be admissible or inadmissible and why.