When a prosecutor needs probation supervision records (like a failed drug screen) to prove a probation revocation, does West Virginia Trial Court Rule 44.01 require the probation officer to get a written court order before turning the records over?

Plain-English summary

Marion County's prosecuting attorney described a recurring problem. The county probation office would refer juvenile probationers to the prosecutor for revocation proceedings based on failed drug screens, but then refuse to turn over the drug screen results without a written court order, citing Trial Court Rule 44.01. Two cases had already been derailed: in the first, the court dismissed the petition because the prosecutor and defendant did not have the screen results; in the second, the judge ordered production verbally after an in camera hearing, but probation insisted on a written order before complying.

The AG's reading of the rule resolves the standoff. Rule 44.01 was written for outside-the-case requests, not for the lawyers prosecuting and defending the revocation itself. The structure of the related rules makes that clear:

• Trial Court Rule 43.01 already requires automatic disclosure of presentence investigation reports to defense counsel and the State at least 10 days before sentencing.
• Trial Court Rule 43.02 requires probation to disclose, on request, all underlying public-record information used to prepare the presentence report.
• Rule 44.01(a) expressly excepts "as provided in TCR 43.02," signaling that automatic disclosures already exist for the people inside the case.

The AG read these rules in pari materia (Fruehauf Corp., 1975) and concluded that Rule 44.01's third-party-disclosure restriction does not apply to the lawyers actively litigating a revocation. The constitutional backdrop reinforces it: Rule 32.1(a)(2) of the West Virginia Rules of Criminal Procedure entitles probationers to "disclosure of the evidence against him or her" before a revocation hearing, and Louk v. Haynes (1976) lists that as one of the "minimal procedural [due process] protections" in a revocation. State v. Ellis (2022) treats the State's disclosure to the petitioner as fulfilling those protections. Federal practice agrees: Fed. R. Crim. P. 32.1(b)(2)(B) and the Southern District of West Virginia's Local Rule 32.1.1(b) impose automatic disclosure without a court order.

The AG also added a practical layer. Without discovery, the State cannot meet its preponderance-of-the-evidence burden under § 62-12-10(a)(1) and State v. Foye (W. Va. 2025), and the defendant cannot defend himself. Out-of-jurisdiction cases (Belk v. Purkett, Maggio, Randall) show appellate reversals when the State could not produce evidence. Requiring a written court order before every discovery exchange in every revocation case would also clog the docket and rack up unnecessary court costs.

Conclusion: Rule 44.01 does not apply to discovery in revocation proceedings. The probation office has to turn over its supervision records to the prosecutor and defense counsel without an additional court order.

What this means for you

If you are a West Virginia prosecuting attorney handling probation revocations

When you ask probation for supervision records you need to prove a violation, the answer is automatic disclosure. If the probation office cites Rule 44.01 and demands a written order, hand them this AG opinion and Rule 32.1(a)(2). If they still refuse, ask the circuit court for a written order to keep the case moving (the AG opinion is persuasive, not binding), and document the delay.

In juvenile cases especially, the timing pressure is real. Failed drug screens, missed appointments, and other violations need a record that can survive an evidentiary challenge. If probation will not produce the underlying results, the case is going nowhere.

If you are a West Virginia probation officer or department head

Stop requiring a court order before turning over supervision records to counsel in active revocation proceedings. The AG reads Rule 44.01 as covering third-party requests (researchers, journalists, opposing parties in unrelated litigation, civil litigants), not the prosecutor and defense counsel litigating the revocation. Update internal protocols so that drug screen results, supervision notes, and similar records flow to the parties on request without a written order.

If you are concerned about confidentiality leakage, address it through professional norms: prosecutors have independent obligations to keep their files confidential, and defense counsel is bound by privilege. The AG specifically calls out those two safeguards as adequate.

If you are defense counsel for a probationer

You are entitled to "disclosure of the evidence against" your client before a revocation hearing under Rule 32.1(a)(2). Don't accept "Rule 44.01 says we need a court order" as a non-answer. Cite this AG opinion, Louk v. Haynes, and State v. Ellis. If probation still refuses, file a motion to compel; State ex rel. Reed v. Douglass (W. Va. 1993) treats the prosecutor as having a "legitimate role" in revocation, which should pull through to defense counsel as well.

If you handle juvenile probation, the same rules apply. The AG's opinion was generated by a juvenile case at the Marion County level.

If you are a probationer

Your lawyer is entitled to see the evidence the State plans to use against you in a revocation hearing. That includes drug screen results, missed-appointment notes, and any officer reports. If your lawyer says they have not received those records, ask them to file a motion or cite this AG opinion to probation.

If you are a West Virginia circuit judge handling revocations

This opinion gives you a textual basis for ordering automatic disclosure if a probation department resists. The AG's reading of Rule 44.01 is consistent with federal practice (Rule 32.1(b)(2)(B)) and with the in pari materia structure of Rules 43.01, 43.02, and 44.01. Standing orders or scheduling orders that require automatic disclosure of supervision records in revocation proceedings would resolve the recurring problem at the docket level.

Common questions

Q: What does Trial Court Rule 44.01 actually say?
A: It says no confidential records of the court maintained by the probation office, including presentence and probation supervision records, are producible "except by written petition to the court particularizing the need for specific information," and "[n]o disclosure shall be made except upon order of the court." The rule is silent about which kinds of disclosures it covers.

Q: Why doesn't Rule 44.01 apply to the prosecutor and defense counsel?
A: Three reasons. First, Rule 43.01 already requires automatic disclosure of presentence reports to counsel for the State and the defense. Rule 43.02 requires automatic disclosure of underlying public-record information. Rule 44.01 expressly carves out "as provided in TCR 43.02" cases. Reading these rules together (in pari materia) shows the rule was meant to govern third-party requests, not in-case discovery. Second, due process under Louk v. Haynes requires evidence-disclosure as a minimal procedural protection in revocation proceedings. Third, denying discovery to counsel would mean prosecutors could not meet their preponderance-of-the-evidence burden and probationers could not effectively defend.

Q: Does this apply to juvenile probation cases too?
A: Yes. The opinion was prompted by juvenile cases in Marion County, and the analysis applies to revocation proceedings generally.

Q: Is the AG opinion binding on probation offices?
A: AG opinions are persuasive authority, not binding precedent. But the analysis is direct and well-grounded, and probation offices that ignore it leave themselves exposed in any motion to compel. A circuit judge confronted with this issue is likely to follow the AG's reading.

Q: Can a court still order in camera review?
A: Yes. Nothing in the AG's opinion strips the court of authority to do an in camera review of probation records before disclosure if the situation calls for it. The opinion is about whether a written court order is a precondition to ordinary discovery, and the answer is no.

Q: What about confidentiality of probation records?
A: The AG addresses this directly: confidentiality is preserved through professional obligations. Prosecutors keep their files confidential as a matter of office practice, and defense counsel is bound by privilege. The point of Rule 44.01's confidentiality protection is to prevent disclosure to the public or to outsiders, not to block disclosure inside an active case.

Q: What happens if a probation office still refuses to disclose without a written order?
A: File a motion to compel, citing this AG opinion, Louk v. Haynes, and Rule 32.1(a)(2). Most circuit judges will issue the order quickly. The longer-term fix is to update local probation-office protocols so that revocation discovery flows automatically.

Background and statutory framework

West Virginia probation revocation hearings are not as formal as criminal trials. The Supreme Court of Appeals has said so repeatedly: revocation hearings "must comport with principles of fundamental fairness" (United States v. Tyler, 5th Cir. 1979, cited in Foye, W. Va. 2025), but they "do[] not have the same stringent requirements as a criminal trial" (State ex rel. Jones v. Trent, 1997). The reason is doctrinal: probation is "an act of grace," not a sentence (State ex rel. Strickland v. Melton, 1968).

Within that framework, Louk v. Haynes (1976) lays out the "minimal procedural [due process] protections" probationers receive: notice of claimed violations, disclosure of the evidence against them, opportunity to be heard and present evidence, the right to confront and cross-examine adverse witnesses (with cause-based exceptions), a neutral hearing body, and a written report of the basis for revocation. Foye (2025) confirms these are still the standard. Rule 32.1(a)(2) of the West Virginia Rules of Criminal Procedure codifies the disclosure piece.

The substantive standard for revocation lives at W. Va. Code § 62-12-10(a)(1): the court must find "reasonable cause" to believe a violation occurred, which Foye construes as "proof by a simple preponderance of the evidence." That standard cannot be met without disclosure of supervision records.

The Trial Court Rules layer disclosure obligations:

• Rule 43.01 mandates automatic disclosure of presentence investigation reports to counsel for the defense and the State at least 10 calendar days before sentencing.
• Rule 43.02 mandates disclosure, on request, of "all underlying public record information pertaining to the defendant that was gathered by documents obtained and used in the preparation of the presentence report."
• Rule 44.01 sets a written-petition-and-court-order procedure for "confidential records of the court maintained by the probation office, including presentence and probation supervision records," with an express carve-out for Rule 43.02.

Reading the three rules together, the AG concluded Rule 44.01 governs requests by people who are not entitled to the records under Rules 43.01 and 43.02. That category does not include counsel actively litigating the revocation proceeding.

The federal analog, Fed. R. Crim. P. 32.1(b)(2)(B), requires the same automatic disclosure. The Southern District of West Virginia's Local Rule 32.1.1(b) is even more explicit: probation officers must disclose evidence "without further request." The Northern District's Local Rule 32.02 lets probation officers release necessary records to law enforcement "without petitioning the Court or obtaining a court order."

The AG closed with a policy argument grounded in Berger v. United States (1935) and United States v. Nixon (1974): the dual purpose of criminal justice is "that guilt shall not escape or innocence suffer," and that depends on developing all relevant facts. Out-of-jurisdiction cases (Belk v. Purkett, 8th Cir. 1994; Rich v. State, Alaska 1982; Commonwealth v. Maggio, Mass. 1993; Randall v. State, Fla. 1999) show what happens when the State cannot meet its evidentiary burden in a revocation: reversal.

Citations and references

Statutes and rules:
- W. Va. Code § 5-3-2 (AG advice)
- W. Va. Code § 62-12-10(a)(1) (Probation revocation standard)
- W. Va. R. Crim. P. 32.1(a)(2) (Disclosure of evidence in revocation hearings)
- W. Va. Tr. Ct. R. 43.01, 43.02, 44.01 (Probation records disclosure framework)
- Fed. R. Crim. P. 32.1(b)(2)(B)
- S.D.W. Va. Loc. R. 32.1.1(b)
- N.D.W. Va. Loc. R. 32.02

Cases:
- State v. Foye, 916 S.E.2d 88 (W. Va. 2025)
- State ex rel. Jones v. Trent, 200 W. Va. 538, 490 S.E.2d 357 (1997)
- State ex rel. Strickland v. Melton, 152 W. Va. 500, 165 S.E.2d 90 (1968)
- United States v. Tyler, 605 F.2d 851 (5th Cir. 1979)
- Louk v. Haynes, 159 W. Va. 482, 223 S.E.2d 780 (1976)
- Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W. Va. 14, 217 S.E.2d 907 (1975)
- State v. Ellis, No. 21-0076, 2022 WL 1714609 (W. Va. May 26, 2022)
- U.S. v. Dixon, 187 F. Supp. 2d 601 (S.D.W. Va. 2002)
- State v. Ketchum, 169 W. Va. 9, 289 S.E.2d 657 (1981)
- Howe v. Detroit Free Press, 487 N.W.2d 374 (Mich. 1992)
- State ex rel. Reed v. Douglass, 189 W. Va. 56, 427 S.E.2d 751 (1993)
- Belk v. Purkett, 15 F.3d 803 (8th Cir. 1994)
- Berger v. U.S., 295 U.S. 78 (1935)
- U.S. v. Nixon, 418 U.S. 683 (1974)

Source

• Landing page: not separately published (the PDF is the official record)
• Original PDF: https://ago.wv.gov/media/37571/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
John B. McCuskey
Attorney General

Phone: (304) 558-2021
Fax: (304) 558-0140
August 15, 2025

The Honorable Seth Murphy
Marion County Prosecuting Attorney
213 Jackson Street
Fairmont, W. Va. 26554
Dear Prosecutor Murphy:
Your office has asked for an Opinion of the Attorney General about the disclosure of
supervision records under Rule 44.01 of the West Virginia Trial Court Rules. This Opinion is being
issued under West Virginia Code Section 5-3-2, which provides that the Attorney General "may
consult with and advise the several prosecuting attorneys in matters relating to the official duties
of their office." When this Opinion relies on facts, it depends solely on the factual assertions in
your correspondence with the Office of the Attorney General.

You explain that Marion County's probation office refuses to provide supervision records
to your office absent a written court order, even when those records are necessary to prosecute
revocations. The probation office maintains that Trial Court Rule 44.01 mandates this disclosure
restriction. We understand that you disputed this reading of Rule 44.01 on two separate occasions.
On the first occasion, the probation office asked your office to file a petition for revocation of
probation against a juvenile probationer due to a failed drug screen. Your office filed the petition,
but because probation did not provide the drug screen results to you or the probationer's counsel,
the court dismissed the case. On the second occasion, the probation office again asked you to
initiate revocation proceedings because of a failed drug screen, but again, the probation office
refused to provide the drug screen results. Following an in camera hearing, the judge verbally
ordered production of the drug screen, but the probation office still insists on having a written
order before production.

With these facts in mind, you raise the following legal question:
Does West Virginia Trial Court Rule 44.01 require probation officers
to secure a court order prior to disclosing supervision records
related to a revocation proceeding to the prosecutor and defense
counsel?

We conclude that Trial Court Rule 44.01 does not apply to disclosures to counsel in a
revocation proceeding. So probation officers need not obtain a court order before producing
discovery to the prosecutor and defense counsel.

Discussion

A. Before examining the trial court rule at issue, "it is helpful to review the … burdens of
evidentiary proof and the procedural standards implicated" during revocation proceedings. State
v. Foye, 916 S.E.2d 88, 96 (W. Va. 2025). A revocation hearing "does not have the same stringent
requirements as a criminal trial." State ex rel. Jones v. Trent, 200 W. Va. 538, 541, 490 S.E.2d 357,
360 (1997). This is because "probation is not a sentence for a crime but instead is an act of grace
upon the part of the State to a person who has been convicted of a crime." Syl. Pt. 2, State ex rel.
Strickland v. Melton, 152 W. Va. 500, 165 S.E.2d 90 (1968) (cleaned up).

Yet, probationers are still afforded procedural protections before probation terms are
changed. Revocation hearings "must comport with principles of fundamental fairness." United
States v. Tyler, 605 F.2d 851, 853 (5th Cir. 1979). Thus, a defendant must be afforded certain
"minimal procedural [due process] protections" during a revocation hearing. Syl. Pt. 12, Louk v.
Haynes, 159 W. Va. 482, 484, 223 S.E.2d 780, 783 (1976); see also Foye, 916 S.E.2d at 95
("Probationers are entitled to due process when faced with revocation of their freedom.") (cleaned
up).

Included among these requirements is the "disclosure of the evidence against him or her."
W. VA. R. CRIM. P. 32.1(a)(2); accord Syl. Pt. 12, Louk, 159 W. Va. at 484, 223 S.E.2d at 783
(listing requisite procedural protections). And before revocation may be ordered by a court, the
court must find—based on evidence—that "reasonable cause exists to believe . . . the probationer"
violated the terms of his or her probation. W. VA. CODE § 62-12-10(a)(1); see also Foye, 916
S.E.2d at 98 (construing "reasonable cause" to mean "proof by a simple preponderance of the
evidence.").

B. With these standards and procedures in mind, we turn to Trial Court Rule 44.01, titled
"Petition for Disclosure of Presentence or Probation Records." Rule 44.01 provides:
(a) Except as provided in TCR 43.02, no confidential records of the
court maintained by the probation office, including presentence and
probation supervision records, shall be producible except by written
petition to the court particularizing the need for specific information.
(b) When a demand for disclosure of presentence and probation
records is made by way of subpoena or other judicial process to a
probation officer, the probation officer may petition in writing
seeking instructions from the court regarding a response to the
subpoena.
(c) No disclosure shall be made except upon order of the court.

On its face, Rule 44.01 does not specify the disclosures to which it applies. Yet reading
Trial Court Rule 44.01 in pari materia with related rules governing probation records demonstrates
that its application is limited: it applies only to third parties—not to counsel litigating revocation
proceedings. See also Syl. Pt. 5, in part, Fruehauf Corp. v. Huntington Moving & Storage Co.,
159 W. Va. 14, 15, 217 S.E.2d 907, 908 (1975) ("Statutes which relate to the same persons or
things, or to the same class of persons or things, or statutes which have a common purpose will be
regarded in Pari materia").

Consider Rule 44.01's neighboring rule, Trial Court Rule 43.01. That rule governs
presentence investigation reports, which are no doubt confidential records, and provides for
automatic disclosure to counsel: "[T]he probation officer shall disclose the presentence
investigation report to the defendant and to counsel for the defendant and to the attorney for the
State not less than ten (10) calendar days prior to sentencing." W. VA. TR. CT. R. 43.01(a). And
Rule 44.01 expressly carves out situations covered by Rule 43.02. Under Rule 43.02, the probation
office must disclose to counsel, upon request, "all underlying public record information pertaining
to the defendant that was gathered by documents obtained and used in the preparation of the
presentence report." W. VA. TR. CT. R. 43.02(b). Taken together, Rule 44.01 is not meant to apply
to discovery disclosures for revocation proceedings.

Reading Trial Court Rule 44.01 differently would undermine basic principles of due
process and the Rules of Criminal Procedure that guarantee a defendant a right to receive discovery
in a revocation proceeding. For one, Rule 32.1(a)(2) of the West Virginia Rules of Criminal
Procedure provides that prior to a revocation hearing, the probationer shall receive "disclosure of
the evidence against him or her" W. VA. R. CRIM. P. 32.1(a)(2)(B) (cleaned up); accord State v.
Ellis, No. 21-0076, 2022 WL 1714609, at *3 (W. Va. May 26, 2022) ("The court properly denied
petitioner's request for discovery . . . because the State provided petitioner with all the evidence it
intended to use at petitioner's probation revocation hearing, thus meeting the safeguards of Rule
32.1 and . . . procedural protections"). For another, it's "axiomatic" that due process demands a
probationer to receive and make use of all evidence against him. U.S. v. Dixon, 187 F. Supp.2d
601, 603 (S.D.W. Va. 2002). So Rule 44.01 cannot extend to the probation office an unfettered
right to refuse disclosures to counsel who are otherwise entitled to inspect and make use of
information as legal counsel. Put plainly, a court order is not required to do what the law already
requires.

The federal rules don't erect such a hurdle either. See, e.g., State v. Ketchum, 169 W. Va.
9, 13 n.4, 289 S.E.2d 657, 659 n.4 (1981) (considering analogous federal rule governing probation
in evaluating West Virginia probation requirements). For example, Rule 32.1 of the Federal Rules
of Criminal Procedure provides that prior to a revocation hearing, a probationer is entitled to
"disclosure of the evidence against the person." FED. R. CRIM. P. 32.1(b)(2)(B). The Southern
District of West Virginia's Local Rules of Criminal Procedure likewise demand disclosure before
revocation, prescribing that "[t]he probation officer shall, without further request by the
probationer, or releasee, or his/her counsel, disclose to the probationer or releasee or his/her
counsel, all evidence against the probationer or releasee … including any potential oral statement
and any potentially exculpatory material." S.D.W. VA. LOC. R. 32.1.1(b). Similarly, in the
Northern District of West Virginia, "the probation officer shall release necessary probation records
to other federal, state, county and municipal law enforcement agencies . . . without petitioning the
Court or obtaining a court order directing the disclosure of those records." N.D.W. VA. LOC. R.
32.02.

Of course, the purpose of Rule 44.01 is to promote the confidentiality of probation's
records. But this concern is only served by limiting third party disclosures; "disclosure [of
probation records] to the public could seriously undermine the [sentencing] process." Howe v.
Detroit Free Press, Inc., 487 N.W.2d 374, 378 (Mich. 1992). Prosecutors have independent duties
to keep their files confidential, and it's the defendant's prerogative to share his own information.

C. Too, there are practical issues with applying Trial Court Rule 44.01 to counsel in active
revocation proceedings.

Without discovery, a prosecutor cannot satisfy the applicable standard of proof by
providing sufficient evidence of the existence of a violation and of the propriety of revocation. See
e.g., Belk v. Purkett, 15 F.3d 803 (8th Cir. 1994); Rich v. State, 640 P.2d 159 (Alaska Ct. App.
1982) (probation revocation reversed because state presented no evidence to satisfy its burden of
proving good cause to revoke probation); Commonwealth v. Maggio, 605 N.E.2d 1247 (Mass.
1993) (state must do more than merely present the bare fact of an indictment or indictments for
unrelated offenses in order to sustain burden of presenting sufficient evidence to justify
revocation); Randall v. State, 741 So.2d 1183 (Fla. Dist. Ct. App. 2d Dist. 1999) (at revocation
hearing state must produce enough evidence to satisfy standard of proof; probationer did not admit
violations and no violations were proven). Even more, "[t]he prosecuting attorney representing
the State and, as a consequence, the victim, in criminal matters has a legitimate role to play in
probation considerations" and a court's "decision should consider the input of the [prosecutor], as
well as the probation office." State ex rel. Reed v. Douglass, 189 W. Va. 56, 58, 427 S.E.2d 751,
753 (1993). Conversely, a probationer will not be able to effectively defend against the petition
for revocation. And trial by ambush is a thing of the past.

Together, application of Rule 44.01 to discovery in revocation proceedings would run afoul
of "the twofold aim . . . that guilt shall not escape or innocence suffer." Berger v. U.S., 295 U.S.
78, 88 (1935) (cleaned up). "The need to develop all relevant facts in the adversary system is both
fundamental and comprehensive." U.S. v. Nixon, 418 U.S. 683, 708–09 (1974). So "[t]he ends of
criminal justice would be defeated if judgments were to be founded on a partial or speculative
presentation of the facts." Id.

Docket congestion would also ensue if orders were required for the disclosure of evidence
in every revocation proceeding. Requiring this from our circuit courts is unreasonable and will
produce substantial financial costs for the State to maintain such a system. A revocation
proceeding is not as rigid as trial proceedings, nor was it ever intended to be. This is because
"probation is not a sentence for a crime but instead is an act of grace upon the part of the State to
a person who has been convicted of a crime." Syl. Pt. 2, Melton, 52 W. Va. at 500, 165 S.E.2d at
91 (cleaned up). Stated another way, "probation is simply one of the devices of an enlightened
system of penology which has for its purpose the reclamation and rehabilitation of the criminal."
Id. at 506, 94. So a revocation hearing "does not have the same stringent requirements as a criminal
trial." Trent, 200 W. Va. at 541, 490 S.E.2d at 360. The State has an interest in expeditiously
containing the threat posed by, and imposing punishment upon, noncompliant probationers. And
the law concerning revocation proceedings is designed to properly balance the State's interest in
informality, flexibility, and economy with the probationer's conditional liberty interests.

At bottom, applying Rule 44.01 to revocation discovery disclosure frustrates the purpose
and intent of probation enforcement mechanisms, overcomplicates a flexible penal system, and
flies in the face of due process.

Conclusion

For these reasons, we conclude that Trial Court Rule 44.01 does not apply to discovery
disclosures made in the course of a probation revocation proceeding.

Sincerely,

John B. McCuskey
Attorney General
Holly J. Wilson
Principal Deputy Solicitor General
Mattie F. Shuler
Assistant Solicitor General