West Virginia

Overview

West Virginia offers a striking example of how the absence of clear statutory mandates and procedural infrastructure can undermine the constitutional obligations imposed by Brady and Giglio. The state has no laws requiring law enforcement to notify prosecutors of sustained findings of officer misconduct, no centralized Giglio or “Do Not Call” list maintained by prosecutors, and no public or internal system for tracking or sharing information about law enforcement credibility. Although prosecutors are bound by professional conduct rules and case law requiring the disclosure of impeachment material, the state provides no oversight mechanism, recordkeeping mandate, or enforcement body to ensure those obligations are consistently met. As a result, West Virginia’s justice system relies heavily on individual discretion, and truth in the courtroom remains more a matter of habit than of law.

Brief Description of Legal Landscape

Criminal prosecutions in West Virginia are carried out by elected County Prosecuting Attorneys in each of the state’s 55 counties. The West Virginia Attorney General plays a limited role in criminal prosecutions, mostly handling appeals and consumer protection matters.

Key sources of disclosure obligations include:

• West Virginia Rules of Criminal Procedure, Rule 16: Requires prosecutors to disclose certain evidence to the defense, including exculpatory and impeachment material.

• West Virginia Rules of Professional Conduct, Rule 3.8(d): Obligates prosecutors to disclose all information known to them that tends to negate guilt or mitigate punishment, even without a defense request.

• West Virginia Freedom of Information Act (WV FOIA), W. Va. Code § 29B-1-1 et seq.: Offers broad exemptions for personnel and investigatory records, limiting public access to internal police misconduct files.

Law enforcement certification and decertification are overseen by the West Virginia Law Enforcement Professional Standards (LEPS) Program, administered by the Governor’s Committee on Crime, Delinquency, and Correction. While the LEPS database tracks decertifications, it does not maintain a public or prosecutor-accessible system for sharing officer discipline or credibility concerns.

Historical Context

West Virginia has seen multiple cases in which misconduct by law enforcement officers went undisclosed for years, even as those officers continued to testify in criminal trials. In several counties, defense attorneys discovered—through civil litigation or local investigations—that officers had sustained findings of lying, evidence tampering, or excessive force that were never disclosed by prosecutors.

One such case involved a deputy sheriff in southern West Virginia who was allowed to resign amid an internal affairs investigation into falsifying reports. The deputy was later hired by a neighboring jurisdiction and called to testify in a felony case, where his misconduct history was unknown to both the prosecutor and the defense. The issue came to light only after an unrelated complaint triggered a background check.

Despite such revelations, there has been no move by the West Virginia Legislature or Attorney General’s Office to require statewide Giglio tracking or improve transparency in law enforcement disciplinary processes. The state’s fragmented legal infrastructure and lack of reform momentum have left Brady and Giglio compliance to the discretion of local officials.

Legal Framework and Precedents

Constitutional Provisions and State Statutes

West Virginia’s Constitution guarantees due process and confrontation rights under Article III, Sections 10 and 14, respectively. These mirror protections under the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution.

Key provisions include:

• W. Va. R. Crim. P. 16(a)(1)(E): Requires disclosure of any evidence “material to the preparation of the defense,” including exculpatory and impeachment material.

• Rule 3.8(d), West Virginia Rules of Professional Conduct: Requires prosecutors to disclose known information that negates guilt or mitigates punishment.

• W. Va. Code § 29B-1-4: Exempts personnel records and certain law enforcement investigation materials from FOIA, severely restricting public access to officer misconduct records.

Importantly, no statute requires law enforcement to notify prosecutors of internal affairs findings, nor is there a legal requirement for prosecutors to maintain or disclose a list of Giglio-impaired officers.

Relevant Case Law and Judicial Interpretations

• State v. Hatfield, 169 W. Va. 191 (1981): Affirmed that due process requires the disclosure of exculpatory evidence known to the prosecution.

• State v. Youngblood, 221 W. Va. 20 (2007): Held that Brady violations occur when the prosecution fails to disclose favorable evidence in its possession or that of the police.

• State ex rel. Games-Neely v. Yoder, 237 W. Va. 301 (2016): Emphasized that prosecutors are responsible for obtaining and disclosing information known to law enforcement agencies, not just that in their own files.

While West Virginia courts have endorsed broad interpretations of Brady obligations, they have not established procedural mandates or required tracking systems, leaving compliance largely unstructured.

Implementation and Enforcement

Law Enforcement Policies and Training

Law enforcement agencies in West Virginia conduct their own internal investigations, but there is no uniform requirement to document sustained misconduct in a format accessible to prosecutors. Smaller agencies may handle discipline informally, and even when internal records exist, they are often treated as confidential personnel matters exempt from disclosure.

The LEPS Program has authority to decertify officers for certain types of misconduct, including dishonesty, criminal activity, or use of excessive force. However:

• The decertification database is not public-facing, nor is it routinely consulted by prosecutors;

• There is no formal mechanism for LEPS to notify prosecutors when an officer in their jurisdiction has been decertified;

• There is no training requirement for law enforcement officers on Brady/Giglio disclosure issues.

As a result, officers with sustained misconduct records may continue to testify without prosecutors knowing or disclosing their histories.

Prosecutorial Practices

Each County Prosecuting Attorney is responsible for determining their own practices regarding disclosure. While larger offices like Kanawha County (Charleston) or Monongalia County (Morgantown) may have internal procedures or institutional memory regarding certain officers, there is no requirement that they maintain Giglio lists or consult LEPS when calling an officer to testify.

Prosecutors are ethically bound to disclose credibility-impairing material, but in the absence of interagency communication, many simply never receive it. The West Virginia State Bar has disciplinary authority over prosecutors, but sanctions for Brady violations are rare and usually reserved for intentional misconduct or high-profile failures.

Case Studies from the State

Significant Cases Illustrating Issues of Candor

1. Southern WV Deputy Testimony Scandal (2018–2019)
   A sheriff’s deputy was found to have fabricated incident reports in multiple arrests. After resigning, the deputy was hired by a neighboring county, where he testified in court without disclosure of his disciplinary history. The issue came to light only after a civil lawsuit and news coverage prompted a review.

2. Charleston Police Use-of-Force Review (2020)
   Officers involved in multiple excessive force incidents were permitted to testify in court without prosecutors or defense counsel being aware of internal findings. The city settled several cases but refused to release internal affairs files under FOIA.

3. LEPS Decertification Case (2021)
   An officer decertified for falsifying timesheets and lying during an internal investigation was later found to have testified in drug cases while under investigation. No notification had been sent to the prosecutor, and no effort was made to review affected cases.

Outcomes and Implications

These examples reveal systemic weaknesses in how West Virginia handles officer misconduct disclosures. Prosecutors often don’t know when officers are under investigation or have been disciplined. Defense counsel is rarely informed of credibility impairments unless they independently investigate or receive anonymous tips. The lack of tracking, reporting, and disclosure infrastructure jeopardizes the fairness of criminal proceedings and undermines public trust.

Challenges and Gaps

Identified Issues within the State’s System

• No Required Giglio Tracking: Prosecutors are not required to maintain any list or log of impeached officers.

• No Mandatory Notification by Police: Law enforcement agencies are under no obligation to share sustained misconduct findings with prosecutors.

• Restricted Access to Personnel Records: FOIA exemptions prevent defense counsel and the public from accessing disciplinary records without a court order.

• Lack of Oversight or Auditing: No state entity reviews compliance with disclosure obligations or ensures interagency coordination.

Legislative and Institutional Barriers

Law enforcement agencies in West Virginia have historically resisted efforts to increase transparency, citing officer privacy and departmental autonomy. Legislative proposals to require greater disclosure or interagency data sharing have failed to gain traction. The absence of central oversight—combined with a highly localized criminal justice structure—makes statewide reform difficult.

Recommendations

Suggested Improvements in Law, Policy, and Practice

1. Mandate Prosecutorial Giglio Lists
   Require all county prosecutors to maintain an internal list of officers with sustained misconduct findings relevant to courtroom credibility.

2. Create a Statutory Police-to-Prosecutor Reporting Duty
   Enact legislation obligating law enforcement agencies to notify prosecutors within 30 days of any sustained disciplinary finding involving dishonesty, falsification, or abuse of power.

3. Expand LEPS Integration with Prosecutors
   Develop a secure, shared portal allowing LEPS to flag decertification actions and sustained misconduct to the relevant prosecuting offices.

4. Amend Rule 16 to Explicitly Require Disclosure of Officer Misconduct
   Include sustained disciplinary findings and internal affairs records in the required pretrial discovery package.

Recommendations for Enhanced Transparency and Accountability

1. Reform FOIA to Permit Access to Credibility-Related Records
   Amend West Virginia’s public records law to allow redacted access to internal affairs files when the misconduct directly affects an officer’s testimony.

2. Establish a Giglio Oversight Entity
   Task the Attorney General or Judicial Investigative Commission with auditing county-level compliance and recommending sanctions or retraining where necessary.

3. Standardize Annual Training on Brady/Giglio Duties
   Make annual training mandatory for all prosecutors and peace officers on disclosure law and the long-term consequences of credibility-based misconduct.

4. Require Retroactive Case Reviews upon Decertification
   Oblige prosecutors to conduct a review of all past cases involving officers who are later decertified or added to a Giglio list.

Conclusion

West Virginia’s justice system operates without the scaffolding necessary to ensure that the truth prevails in every courtroom. The state lacks the basic infrastructure—Giglio lists, mandatory reporting, oversight mechanisms—to enforce one of the most essential constitutional obligations: disclosure of credibility-impairing evidence. While the legal principles are clear, their implementation is opaque, inconsistent, and often nonexistent. Without immediate reform, West Virginia risks continuing a system in which justice depends not on transparency, but on what prosecutors are lucky enough—or willing enough—to find out.