|After a long morning spent on rules bills, the House Judiciary Committee on Friday passed Committee Substitute for Senate Bill 558, which adds a new section to statute prohibiting law enforcement from posting booking photographs on social media of individuals alleged to have committed a minor offense.
Counsel said minor offenses are defined in code and include misdemeanors and non-violent crimes eligible for expungement. Exceptions are provided for fugitives or if the court determines a legitimate public interest.
An amendment was adopted that would make it clear that the Division of Corrections and Rehabilitation can still publish booking photos on their website, as they currently do daily.
Delegate Larry Kump of Berkeley County spoke against the amendment, saying, “I don’t like the idea of trial by social media for people who aren’t convicted yet.” The sponsor of the amendment responded the bill involves an official state website and not social media.
Delegate Geoff Foster of Putnam County spoke in support of the bill, explaining what his mother experienced when she was accused and subjected to a trial by social media for a matter that was immediately dismissed in magistrate court.
Bill addresses payment of court costs
The House Judiciary Committee passed a strike-and-insert amendment for Committee Substitute for Senate Bill 191, making payment of court costs a condition of a deferred adjudication agreement.
Counsel said the strike-and-insert amendment cleans up the bill to cover both pre-trial diversion and deferred adjudication and adds that, by court order or agreement, restitution may be included in costs.
The bill provides that financial inability to pay court costs may not be a basis for denying a person deferred adjudication.
Delegate Tom Fast of Fayette County successfully amended the bill by allowing restitution to be added only for deferred adjudication. He explained to the Committee that a pre-trial diversion has no determination of guilt.
“If you haven’t plead guilty, then you shouldn’t have to pay restitution,’ Delegate Fast said.
Bill removes ABCC enforcement of gaming laws
A strike-and-insert amendment for Senate Bill 457 passed the House Judiciary Committee. It would remove oversight of gambling and gaming devices from the Alcohol Beverage Control Commission (ABCC).
Senator Jason Barrett of Berkeley County, lead sponsor of the bill, said the it seeks to ensure that ABCC is enforcing alcohol laws. He said gaming devices and gambling were added when illegal gray machines were common.
“There have been issues with overzealous ABCC agents, and I think their focus should be on overserving customers and serving underage customers,” Senator Barrett said.
Asked whether there was any evidence of that, Senator Barrett responded that he has had several restaurant, bar, and private club owners report to him about agents threatening to pull the businesses’ LVL machines and take other actions.
Delegate Josh Holstein of Boone County said he looked at the ABCC mission statement and website, and the absence of any mention of gaming devices and gambling seemed to indicate “mission creep.”
Bill alters exceptions for using spousal privilege
After lengthy discussion, the House Judiciary Committee passed Senate Bill 559 to revise the old law of spousal privilege in order to allow the state to compel testimony when an offense is committed against any child, not just a child of one spouse or the other or their child together.
Counsel provided some historical background for spousal privilege, noting it goes back to 1849 Virginia law and stems from a basis that the husband and wife are “one person in law.”
Counsel said that although this basis is no longer part of our law, West Virginia still has spousal privilege that one cannot testify against the other. He added that both spouses have the privilege, but only the accused can waive the privilege.
Delegate Brandon Steele of Raleigh County successfully amended the bill to change child to minor as defined in statute and add “or any person deemed incompetent by mental disease, defect, or other disability.” Counsel explained that competency would be determined by the Court through a pre-trial hearing.
Delegate Steele described a situation in Raleigh County, where a neighbor’s child was molested by a husband. The only competent witness was his wife. She wanted to testify, but he asserted privilege. She was not allowed to testify. For that reason, Delegate Steele proposed an amendment that would permit but not compel the spouse to testify.
“This takes the option from the accused and puts the option on the witness,” Delegate Steele said. “I’ve seen instances where the spouse has wanted to testify but wasn’t allowed,” he added.
The amendment was discussed at length, including concerns about the use of coercion to get a spouse to testify. Delegate Geoff Foster of Putnam County said he believed in the “sanctity of marriage” and the “one-flesh” basis of spousal privilege and opposed the amendment.
Delegate Tom Fast of Fayette County opposed the amendment because it might substantially weaken the spousal doctrine deeply rooted in history.
“It takes the husband’s ability to object out,” Delegate Fast said.
The amendment was rejected.