Establishing Limits on Victim Character Evidence Under the Plain Error Doctrine

Introduction

The Supreme Court of Appeals of West Virginia’s decision in State of West Virginia v. David Hunter Lewis (No. 22-822, June 2, 2025) addresses a recurring trial-level challenge: when and how a criminal prosecution may introduce evidence of a victim’s personal character. Petitioner David Hunter Lewis was convicted of second-degree murder and use of a firearm during the commission of a felony. On appeal, Lewis argued that the State flooded the jury with sympathetic—but inadmissible—testimony about the victim’s virtues, and that this evidence was so pervasive it impaired the fairness of the trial. In response, the State relied on Rule 404(a)(2)(C) of the West Virginia Rules of Evidence, which permits evidence of a homicide victim’s peacefulness only to rebut a claim of victim aggression. The Court reversed Lewis’s conviction in part, holding that the repeated references to the victim’s character constituted plain error and warranted a new trial.

Summary of the Judgment

The Court’s key holdings in this decision are:

• The State’s extensive evidence and argument about the victim’s personal traits (e.g., “thoughtful,” “hardworking,” “like a brother to many”) went beyond the narrow scope of Rule 404(a)(2)(C) and was admitted without any defense claim that the victim was the initial aggressor.
• Because defense counsel did not object at trial, the Court applied the “plain error” doctrine. It found that:
  1. Admission of the character evidence was error;
  2. The error was “plain” under existing law;
  3. It affected Lewis’s “substantial rights” because sympathy for the victim distracted the jury from determining guilt beyond a reasonable doubt;
  4. It undermined the fairness, integrity, and public reputation of the judicial proceedings.
• The conviction for second-degree murder was reversed and the case remanded for a new trial. The Court affirmed in part the circuit court’s ruling that Lewis’s statements to police at the station (after a valid waiver of Miranda rights) were properly admitted.

Analysis

Precedents Cited

The Court grounded its decision on well-established West Virginia authorities:

• Rule 404(a)(2)(C), W. Va. R. Evid. – allows prosecution evidence of a homicide victim’s peaceful character only to rebut a claim that the victim was the first aggressor.
• State v. Neuman, 179 W. Va. 580, 371 S.E.2d 77 (1988) – holds that evidence of a victim’s peaceful character is presumed good and may not be offered “in the first instance” by the State.
• State v. Wade, 200 W. Va. 637, 490 S.E.2d 724 (1997) – condemns introduction of irrelevant victim-character evidence “for the sole purpose of gaining sympathy from the jury.”
• State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995) – sets out the four-prong plain error test:
1. There was an error;
2. It was “plain” or obvious;
3. It affected substantial rights;
4. It seriously affected the fairness, integrity, or public reputation of the proceedings.
• State v. Marple, 197 W. Va. 47, 475 S.E.2d 47 (1996) – explains that a defendant need only show that plain error actually affected the jury verdict, not that acquittal was certain absent the error.
• State v. Kessler, 248 W. Va. 289, 888 S.E.2d 789 (2023) – reiterates the harmless-error test for nonconstitutional evidence: remove the tainted evidence, ask whether the remaining proof sustains conviction beyond a reasonable doubt, and evaluate residual prejudice.

Legal Reasoning

The Court’s reasoning proceeds in three stages:

1. Error and Plainness
   The prosecution’s opening statement declared “this case … should be about Dylan Harr,” and witnesses were then asked repeatedly to describe the victim’s virtues. Under Rule 404(a)(2)(C) and Neuman, such “first instance” character evidence—especially when used to inflame sympathy—was plainly prohibited. The law was already clear at the time of trial; hence the error was “plain.”
2. Substantial Rights
   The character evidence distracted the jury from deciding whether Lewis had acted with the malice essential for second-degree murder, especially since the incident’s immediate circumstances were disputed. Even removing the victim-character testimony, the remaining evidence on intent was not overwhelming. Under Marple and Kessler, Lewis demonstrated that the forbidden material actually affected the verdict.
3. Fairness and Integrity
   In a criminal trial, jurors must focus exclusively on defendant guilt or innocence based on admissible evidence. By urging sympathy for the victim as a community loss and depicting Lewis as a moral villain in contrast, the prosecution threatened the fairness and public reputation of the process. Plain error review is warranted only in circumstances “where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result.” Here, all three factors are met.

Impact

This ruling reinforces strict boundaries on victim-character evidence in West Virginia criminal trials:

• Trial prosecutors must confine character evidence of a homicide victim to rebutting an affirmative claim that the victim was the first aggressor.
• Trial courts must police opening statements and closing arguments for improper references to victim reputation or sympathy themes.
• Defendants who fail to object will nonetheless obtain relief under plain error review if the evidence is pervasive and prejudicial.

Going forward, this decision will prompt trial judges to intervene earlier and more forcefully if prosecutors seek to transform a guilt trial into a sympathy campaign for the deceased.

Complex Concepts Simplified

• Rule 404(a)(2)(C): Normally a person’s character can’t be used to prove they acted in conformity with it. Exception: in a murder trial, the State can show the victim was peaceful—but only to counter a defense claim that the victim attacked first.
• Plain Error Doctrine: Even if a lawyer fails to object at trial, an appellate court can correct very serious mistakes—those that are obvious, harm the defendant’s rights, and undermine judicial fairness.
• Harmless Error Test: For non-constitutional errors, judges ask: if we erase the bad evidence, does the rest still prove guilt beyond a reasonable doubt? If not, the conviction must be reversed.
• Miranda Waiver vs. Invocation: A suspect in custody has the right to remain silent (Fifth Amendment) and the right to an attorney (Sixth Amendment). If the suspect says “I want a lawyer,” police must stop questioning under Sixth Amendment rules. If they merely stop after a Miranda invocation of silence, they may restart questioning only if they “scrupulously honor” the suspect’s earlier choice and re-Mirandize.

Conclusion

State of West Virginia v. Lewis makes clear that West Virginia courts will not tolerate the prosecution’s use of victim character as a backdoor to jury sympathy. By applying the plain error doctrine, the Supreme Court of Appeals emphasized its commitment to fair trials where jurors focus solely on whether the defendant’s guilt is proven beyond a reasonable doubt. This decision will guide trial judges, prosecutors, and defense counsel in managing character evidence and preserving the integrity of criminal proceedings.