BILL REQ. #:  H-1577.1 



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HOUSE BILL 1966
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State of Washington59th Legislature2005 Regular Session

By Representatives Ericks, O'Brien, Lovick, Strow, Haler, Takko, Morrell, Nixon, Campbell, McIntire, Conway, Santos, Chase and Moeller

Read first time 02/11/2005.   Referred to Committee on Criminal Justice & Corrections.



     AN ACT Relating to classifying identity theft as a crime against persons; and reenacting and amending RCW 9.94A.411.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 9.94A.411 and 2000 c 119 s 28 and 2000 c 28 s 17 are each reenacted and amended to read as follows:
     (1) Decision not to prosecute.
     STANDARD: A prosecuting attorney may decline to prosecute, even though technically sufficient evidence to prosecute exists, in situations where prosecution would serve no public purpose, would defeat the underlying purpose of the law in question or would result in decreased respect for the law.
     GUIDELINE/COMMENTARY:
     Examples
     The following are examples of reasons not to prosecute which could satisfy the standard.
     (a) Contrary to Legislative Intent - It may be proper to decline to charge where the application of criminal sanctions would be clearly contrary to the intent of the legislature in enacting the particular statute.
     (b) Antiquated Statute - It may be proper to decline to charge where the statute in question is antiquated in that:
     (i) It has not been enforced for many years; and
     (ii) Most members of society act as if it were no longer in existence; and
     (iii) It serves no deterrent or protective purpose in today's society; and
     (iv) The statute has not been recently reconsidered by the legislature.
     This reason is not to be construed as the basis for declining cases because the law in question is unpopular or because it is difficult to enforce.
     (c) De Minimis Violation - It may be proper to decline to charge where the violation of law is only technical or insubstantial and where no public interest or deterrent purpose would be served by prosecution.
     (d) Confinement on Other Charges - It may be proper to decline to charge because the accused has been sentenced on another charge to a lengthy period of confinement; and
     (i) Conviction of the new offense would not merit any additional direct or collateral punishment;
     (ii) The new offense is either a misdemeanor or a felony which is not particularly aggravated; and
     (iii) Conviction of the new offense would not serve any significant deterrent purpose.
     (e) Pending Conviction on Another Charge - It may be proper to decline to charge because the accused is facing a pending prosecution in the same or another county; and
     (i) Conviction of the new offense would not merit any additional direct or collateral punishment;
     (ii) Conviction in the pending prosecution is imminent;
     (iii) The new offense is either a misdemeanor or a felony which is not particularly aggravated; and
     (iv) Conviction of the new offense would not serve any significant deterrent purpose.
     (f) High Disproportionate Cost of Prosecution - It may be proper to decline to charge where the cost of locating or transporting, or the burden on, prosecution witnesses is highly disproportionate to the importance of prosecuting the offense in question. This reason should be limited to minor cases and should not be relied upon in serious cases.
     (g) Improper Motives of Complainant - It may be proper to decline charges because the motives of the complainant are improper and prosecution would serve no public purpose, would defeat the underlying purpose of the law in question or would result in decreased respect for the law.
     (h) Immunity - It may be proper to decline to charge where immunity is to be given to an accused in order to prosecute another where the accused's information or testimony will reasonably lead to the conviction of others who are responsible for more serious criminal conduct or who represent a greater danger to the public interest.
     (i) Victim Request - It may be proper to decline to charge because the victim requests that no criminal charges be filed and the case involves the following crimes or situations:
     (i) Assault cases where the victim has suffered little or no injury;
     (ii) Crimes against property, not involving violence, where no major loss was suffered;
     (iii) Where doing so would not jeopardize the safety of society.
     Care should be taken to insure that the victim's request is freely made and is not the product of threats or pressure by the accused.
     The presence of these factors may also justify the decision to dismiss a prosecution which has been commenced.
     Notification
     The prosecutor is encouraged to notify the victim, when practical, and the law enforcement personnel, of the decision not to prosecute.
     (2) Decision to prosecute.
     (a) STANDARD:
     Crimes against persons will be filed if sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify conviction by a reasonable and objective fact-finder. With regard to offenses prohibited by RCW 9A.44.040, 9A.44.050, 9A.44.073, 9A.44.076, 9A.44.079, 9A.44.083, 9A.44.086, 9A.44.089, and 9A.64.020 the prosecutor should avoid prefiling agreements or diversions intended to place the accused in a program of treatment or counseling, so that treatment, if determined to be beneficial, can be provided pursuant to RCW 9.94A.670.
     Crimes against property/other crimes will be filed if the admissible evidence is of such convincing force as to make it probable that a reasonable and objective fact-finder would convict after hearing all the admissible evidence and the most plausible defense that could be raised.
     See table below for the crimes within these categories.


     CATEGORIZATION OF CRIMES FOR PROSECUTING STANDARDS


     CRIMES AGAINST PERSONS
     Aggravated Murder
     1st Degree Murder
     2nd Degree Murder
     1st Degree Manslaughter
     2nd Degree Manslaughter
     1st Degree Kidnapping
     2nd Degree Kidnapping
     1st Degree Assault
     2nd Degree Assault
     3rd Degree Assault
     1st Degree Assault of a Child
     2nd Degree Assault of a Child
     3rd Degree Assault of a Child
     1st Degree Rape
     2nd Degree Rape
     3rd Degree Rape
     1st Degree Rape of a Child
     2nd Degree Rape of a Child
     3rd Degree Rape of a Child
     1st Degree Robbery
     2nd Degree Robbery
     1st Degree Arson
     1st Degree Burglary
     1st Degree Identity Theft
     2nd Degree Identity Theft
     1st Degree Extortion
     2nd Degree Extortion
     Indecent Liberties
     Incest
     Vehicular Homicide
     Vehicular Assault
     1st Degree Child Molestation
     2nd Degree Child Molestation
     3rd Degree Child Molestation
     1st Degree Promoting Prostitution
     Intimidating a Juror
     Communication with a Minor
     Intimidating a Witness
     Intimidating a Public Servant
     Bomb Threat (if against person)
     Unlawful Imprisonment
     Promoting a Suicide Attempt
     Riot (if against person)
     Stalking
     Custodial Assault
     Domestic Violence Court Order Violation (RCW 10.99.040, 10.99.050, 26.09.300, 26.10.220, 26.26.138, 26.50.110, 26.52.070, or 74.34.145)
     Counterfeiting (if a violation of RCW 9.16.035(4))

     CRIMES AGAINST PROPERTY/OTHER CRIMES
     2nd Degree Arson
     1st Degree Escape
     2nd Degree Escape
     2nd Degree Burglary
     1st Degree Theft
     2nd Degree Theft
     1st Degree Perjury
     2nd Degree Perjury
     1st Degree Introducing Contraband
     2nd Degree Introducing Contraband
     1st Degree Possession of Stolen Property
     2nd Degree Possession of Stolen Property
     Bribery
     Bribing a Witness
     Bribe received by a Witness
     Bomb Threat (if against property)
     1st Degree Malicious Mischief
     2nd Degree Malicious Mischief
     1st Degree Reckless Burning
     Taking a Motor Vehicle without Authorization
     Forgery
     2nd Degree Promoting Prostitution
     Tampering with a Witness
     Trading in Public Office
     Trading in Special Influence
     Receiving/Granting Unlawful Compensation
     Bigamy
     Eluding a Pursuing Police Vehicle
     Willful Failure to Return from Furlough
     Escape from Community Custody
     Riot (if against property)
     1st Degree Theft of Livestock
     2nd Degree Theft of Livestock

     ALL OTHER UNCLASSIFIED FELONIES
     Selection of Charges/Degree of Charge
     (i) The prosecutor should file charges which adequately describe the nature of defendant's conduct. Other offenses may be charged only if they are necessary to ensure that the charges:
     (A) Will significantly enhance the strength of the state's case at trial; or
     (B) Will result in restitution to all victims.
     (ii) The prosecutor should not overcharge to obtain a guilty plea. Overcharging includes:
     (A) Charging a higher degree;
     (B) Charging additional counts.
     This standard is intended to direct prosecutors to charge those crimes which demonstrate the nature and seriousness of a defendant's criminal conduct, but to decline to charge crimes which are not necessary to such an indication. Crimes which do not merge as a matter of law, but which arise from the same course of conduct, do not all have to be charged.

     (b) GUIDELINES/COMMENTARY:
     (i) Police Investigation
     A prosecuting attorney is dependent upon law enforcement agencies to conduct the necessary factual investigation which must precede the decision to prosecute. The prosecuting attorney shall ensure that a thorough factual investigation has been conducted before a decision to prosecute is made. In ordinary circumstances the investigation should include the following:
     (A) The interviewing of all material witnesses, together with the obtaining of written statements whenever possible;
     (B) The completion of necessary laboratory tests; and
     (C) The obtaining, in accordance with constitutional requirements, of the suspect's version of the events.
     If the initial investigation is incomplete, a prosecuting attorney should insist upon further investigation before a decision to prosecute is made, and specify what the investigation needs to include.
     (ii) Exceptions
     In certain situations, a prosecuting attorney may authorize filing of a criminal complaint before the investigation is complete if:
     (A) Probable cause exists to believe the suspect is guilty; and
     (B) The suspect presents a danger to the community or is likely to flee if not apprehended; or
     (C) The arrest of the suspect is necessary to complete the investigation of the crime.
     In the event that the exception to the standard is applied, the prosecuting attorney shall obtain a commitment from the law enforcement agency involved to complete the investigation in a timely manner. If the subsequent investigation does not produce sufficient evidence to meet the normal charging standard, the complaint should be dismissed.
     (iii) Investigation Techniques
     The prosecutor should be fully advised of the investigatory techniques that were used in the case investigation including:
     (A) Polygraph testing;
     (B) Hypnosis;
     (C) Electronic surveillance;
     (D) Use of informants.
     (iv) Pre-Filing Discussions with Defendant
     Discussions with the defendant or his/her representative regarding the selection or disposition of charges may occur prior to the filing of charges, and potential agreements can be reached.
     (v) Pre-Filing Discussions with Victim(s)
     Discussions with the victim(s) or victims' representatives regarding the selection or disposition of charges may occur before the filing of charges. The discussions may be considered by the prosecutor in charging and disposition decisions, and should be considered before reaching any agreement with the defendant regarding these decisions.

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