WSR 06-07-052

RULES OF COURT

STATE SUPREME COURT


[ Memorandum -- March 9, 2006 ]

IN THE MATTER OF THE ADOPTION OF NEW CrR 4.11, NEW CrRLJ 4.11 AND THE ADOPTION OF THE AMENDMENTS TO CrR 4.6 AND CrRLJ 4.6 )

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ORDER

NO. 25700-A-848


The Washington State Bar Association having recommended the adoption of New CrR 4.11, New CrRLJ 4.11 and the proposed amendments to CrR 4.6 and CrRLJ 4.6, and the Court having approved the proposed new rules and amendments for publication;

Now, therefore, it is hereby

ORDERED:

(a) That pursuant to the provisions of GR 9(g), the proposed new rules and amendment as attached hereto are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Office of the Administrator for the Court's web sites expeditiously.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than 90 days from the published date. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, WA 98504-0929, or Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 9th day of March, 2006.
For the Court
Gerry L. Alexander


CHIEF JUSTICE
GR 9 Cover Sheet

Suggested Amendment to Superior Court Criminal Rules (CrR)

New Rule 4.11 concerning Recording of Witness Interviews

together with companion amendment to CrR 4.6


Submitted by the Board of Governors of the Washington State Bar Association




(A) Name of Proponent: Washington State Bar Association.

Changes to the Criminal Rules to permit recording of witness interviews were originally suggested by the Washington Association of Criminal Defense Lawyers in 2002. At the recommendation of the WSBA Court Rules and Procedures Committee, the WSBA Board of Governors approved a modified version of the suggested changes in January 2004 and submitted the suggested changes to the Supreme Court. The Court returned the proposal to the Court Rules and Procedures Committee and requested that the WSBA consider written comments received by the Court and work with other interested organizations in developing a revised rule. The current amended version represents the Board of Governors' suggested revision.

(B) Spokesperson: David D. Swartling, Chair, WSBA Court Rules and Procedures Committee

(C) Purpose: This suggested new rule clarifies that a lawyer in a criminal case, or the lawyer's employees or agents, may record witness interviews "by openly using an audiotape or other means of verbatim recording, including a court reporter." Recording will facilitate trial preparation in criminal cases, in which depositions either are not allowed or are not a financially viable option in many circumstances. In addition, a recording or transcript provides a more accurate record of witness statements for use at trial if the witness's testimony differs from the prior recorded statement. This should ameliorate problems and inefficiencies encountered in proving prior inconsistent statements in criminal cases, which is typically accomplished by calling an investigator or other person who took notes, who is then subject to cross examination regarding his or her integrity and/or the accuracy of the notes.

Although the statement of any witness may be recorded, subject to the criteria of the rule, five days' notice must be provided to the interviewee and opposing counsel in order to take the statement of a complaining witness and/or alleged victim. The notice must state the method of recording. Objections to taking a statement or the protocol for recording are subject to oversight of a superior court judge pursuant to the protective order provisions of CrR 4.7(h).

The rule also prescribes information that must be provided on the tape/recording at the commencement of the interview. It also provides that the person interviewed and all parties are entitled to copies of the interview. Tapes or copies of the interview transcripts must not be disseminated by any party except as reasonably necessary to conduct a party's case.

The Board of Governors has considered a number of earlier iterations of this suggested rule. The rule has undergone numerous revisions to address concerns of interested groups, including victims' advocates, criminal defense lawyers, prosecutors, and judges. These proposed revisions included specification that the recording must be conducted "openly" to prevent surreptitious recording, addition of a notice period to allow objection to statements by complaining witnesses and/or victims, addition of paragraph (c) providing a protocol for beginning the recording, and a prohibition on dissemination of transcripts and tapes.

Most recently, the Supreme Court referred the suggested rule back to the WSBA Court Rules and Procedures Committee to address concerns raised by the Superior Court Judges' Association (SCJA). The Committee appointed a subcommittee to evaluate these issues, obtain input from stakeholders and interested persons, and to coordinate with the SCJA. As a result of these efforts, the subcommittee recommended two additional amendments to the suggested rule. In order to clarify the persons who may take statements, the phrase "or counsel's designee" was deleted and replaced with "an employee or agent of counsel's office." In addition, two sentences were added to paragraph (a) specifying that witness interviews are subject to the court's regulation of discovery under CrR 4.7(h) and that disputes regarding the interview protocol shall be resolved under CrR 4.6 (b) and (c) and CrR 4.7(h). In making these recommended revisions to the suggested rule, the Committee again opted not to "carve out" an exception for a specific class of individuals (crime victims or children); instead, concerns about the circumstances of an individual interviewee are subject to judicial oversight under the provisions of CrR 4.7 relating to protective orders.

Consistent with the previous version of this rule, if the witness does not wish to give a recorded statement, the interviewer has the choice to proceed with the interview without a verbatim recording or to seek a court-ordered deposition under CrR 4.6.

(D) Hearing: A public hearing is not recommended.

(E) Expedited Consideration: Expedited consideration is not requested.


SUPERIOR COURT CRIMINAL RULES (CrR)

[NEW] RULE 4.11. INTERVIEWS OF WITNESSES



(a) Recording of Witness Interviews. Counsel for any party, or an employee or agent of counsel's office, may conduct witness interviews by openly using an audiotape or other means of verbatim recording, including a court reporter. Complaining witnesses, alleged victims, and opposing counsel shall receive 5 days' notice of the intent to record interviews of complaining witnesses and/or alleged victims. The notice shall state the method of recording. Such interviews are subject to the court's regulation of discovery under CrR 4.7(h). Any disputes about the interview, notice, or manner of recording shall be resolved in accordance with CrR 4.6 (b) and (c) and CrR 4.7(h). This rule shall not affect any other legal rights of the witness.

(b) Providing Copies. Copies of the tapes and transcripts of interviews of witnesses shall not be disseminated by any party except as reasonably necessary to conduct the party's case. If requested, counsel shall promptly provide all other parties and the witness with a copy of the recording and transcript, if made. If the interview is recorded by a court reporter, any party or the witness may order a transcript thereof at the expense of the party or witness who orders the transcript.

(c) Preliminary Statement. At the commencement of any recorded witness interview, the person conducting the interview shall confirm on the audiotape or recording that the witness has been provided the following information: (1) the name, address, and telephone number of the person conducting the interview; (2) the identity of the party represented by the person conducting the interview; and (3) that the witness may obtain a copy of the recording and transcript, if made.

GR 9 Cover Sheet

Suggested Amendment to Superior Court Criminal Rule (CrR) 4.6

concerning Depositions


Submitted by the Board of Governors of the Washington State Bar Association




(A) Name of Proponent: Washington State Bar Association.

(B) Spokesperson: David D. Swartling, Chair, WSBA Court Rules and Procedures Committee.

(C) Purpose: The amendment to section (a) is a companion to suggested new CrR 4.11. It would allow a party to request that the court order a deposition when a witness "does not agree to allow his or her interview by, or statement to, either counsel to be recorded by audiotape or other means of verbatim recording." Currently, the party must show that the witness "refuses to discuss the case with either counsel." Ordering a deposition is discretionary with the court, as the rule uses the language "may upon motion of a party ...."

Even if the witness fails to agree to allow recording, the party seeking the deposition must still show that "such testimony is material and that it is necessary to take the witness's deposition in order to prevent a failure of justice."

(D) Hearing: A public hearing is not recommended.

(E) Expedited Consideration: Expedited consideration is not requested.


SUPERIOR COURT CRIMINAL RULES (CrR)

RULE 4.6 DEPOSITIONS

[companion to suggested New Rule 4.11]



(a) When Taken. Upon a showing that a prospective witness may be unable to attend or prevented from attending a trial or hearing or if a witness refuses to discuss the case with either counsel or does not agree to allow his or her interview by, or statement to, either counsel to be recorded by audiotape or other means of verbatim recording, including a court reporter, and that his such testimony is material and that it is necessary to take his the witness's deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment or information may upon motion of a party and notice to the parties order that his the witness's testimony be taken by deposition and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place.

(b) - (e) [Unchanged.]

GR 9 Cover Sheet

Suggested Amendment to Criminal Rules for Courts of Limited Jurisdiction (CrRLJ)

New Rule 4.11 concerning Recording of Witness Interviews

together with companion amendment to CrRLJ 4.6


Submitted by the Board of Governors of the Washington State Bar Association




(A) Name of Proponent: Washington State Bar Association

(B) Spokesperson: David D. Swartling, Chair, WSBA Court Rules and Procedures Committee

(C) Purpose: Please see the statement of purpose for the suggested new Rule CrR 4.11.

(D) Hearing: A public hearing is not recommended.

(E) Expedited Consideration: Expedited consideration is not requested.


CRIMINAL RULES FOR COURTS OF LIMITED

JURISDICTION (CrRLJ)

RULE 4.6 DEPOSITIONS

[companion amendment to suggested New Rule 4.11]



(a) When Taken. Upon a showing that a prospective witness may be unable to attend or prevented from attending a trial or hearing or if a witness refuses to discuss the case with either lawyer or does not agree to allow his or her interview by, or statement to, either lawyer to be recorded by audiotape or other means of verbatim recording, including a court reporter, and that his or her such testimony is material and that it is necessary to take his or her the witness's deposition in order to prevent a failure of justice, the court at any time after the filing of a complaint or citation and notice may upon motion of a party and notice to the parties order that his or her the witness's testimony be taken by deposition and that any designated books, papers, documents or tangible objects, not privileged, be produced a the same time and place.

(b) - (e) [Unchanged.]

GR 9 Cover Sheet

Suggested Amendment to Criminal Rule for Courts of Limited Jurisdiction (CrRLJ) 4.6

concerning Depositions


Submitted by the Board of Governors of the Washington State Bar Association




(A) Name of Proponent: Washington State Bar Association

(B) Spokesperson: David D. Swartling, Chair, WSBA Court Rules and Procedures Committee

(C) Purpose: Please see the statement of purpose for the suggested amendment to CrR 4.6.

(D) Hearing: A public hearing is not recommended.

(E) Expedited Consideration: Expedited consideration is not requested.


CRIMINAL RULES FOR COURTS OF LIMITED

JURISDICTION (CrRLJ)

[NEW] RULE 4.11 INTERVIEWS OF WITNESSES



(a) Recording of Witness Interviews. Counsel for any party, or an employee or agent of counsel's office, may conduct witness interviews by openly using an audiotape or other means of verbatim recording, including a court reporter. Complaining witnesses, alleged victims, and opposing counsel shall receive 5 days' notice of the intent to record interviews of complaining witnesses and/or alleged victims. The notice shall state the method of recording. Such interviews are subject to the court's regulation of discovery under CrRLJ 4.7(g). Any disputes about the interview, notice, or manner of recording shall be resolved in accordance with CrRLJ 4.6 (b) and (c) and CrRLJ 4.7(g). This rule shall not affect any other legal rights of the witness.

(b) Providing Copies. Copies of the tapes and transcripts of interviews of witnesses shall not be disseminated by any party except as reasonably necessary to conduct the party's case. If requested, counsel shall promptly provide all other parties and the witness with a copy of the recording and transcript, if made. If the interview is recorded by a court reporter, any party or the witness may order a transcript thereof at the expense of the party or witness who orders the transcript.

(c) Preliminary Statement. At the commencement of any recorded witness interview, the person conducting the interview shall confirm on the audiotape or recording that the witness has been provided the following information: (1) the name, address, and telephone number of the person conducting the interview; (2) the identity of the party represented by the person conducting the interview; and (3) that the witness may obtain a copy of the recording and transcript, if made.

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Reviser's note: The typographical errors in the above material occurred in the copy filed by the state supreme court and appear in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office