IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO ER 1101 (c)(4) AND CrRLJ 4.1

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ORDER NO. 25700-A-869

     The District and Municipal Court Judges' Association having recommended the adoption of the proposed amendments to ER 1101 (c)(4) and CrRLJ 4.1, and the Court having approved the proposed amendments for publication;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provisions of GR 9(g), the proposed amendments 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 websites 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 60 days from the published date. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 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 5th day of April, 2007.

For the Court

Gerry L. Alexander

CHIEF JUSTICE

     Purpose: ER 1101 (c)(4) currently provides that the rules of evidence (other than with respect to privileges) do not apply in protection order proceedings under chapter 10.14 RCW (harassment) and chapter 26.50 RCW (domestic violence.) The Sexual Assault Protection Order Act, chapter 7.90 RCW, which was adopted by the legislature in 2006 (Laws of 2006, ch. 138), creates a new civil protection order for victims of sexual assault. This suggested change to the court rules would add the new sexual assault protection order to this evidentiary subsection.

     A revision by the legislature in 1992 to the Domestic Violence Prevention Act stated that victims must have "easy, quick, and effective access to the court system [as] envisioned at the time the protection order process was first created." (Laws of 1992, ch. 111, §1.) Section (c)(4) of ER 1101 reflects the need for easy, quick and effective access to the court system by simplifying how evidence is presented in protection order hearings, which often involve pro se litigants. The same need for "easy, quick and effective access to the court" apply to the issuance of orders under the Sexual Assault Protection Order Act. Further, RCW 26.50.160, which requires the availability of the judicial information system (JIS) database in every court and specifies that the JIS contain information on the parties in a protection order proceeding, was amended to include a reference to the Sexual Assault Protection Order Act, indicating a need for the suggested change to ER 1101 (c)(4) so that all protection order hearings are conducted in a consistent manner. (Laws 2006, ch. 138, §26.)

     This suggested rule change also contains a suggested revision to the caption of ER 1101 (c)(4), to clarify the scope of the subsection. The present caption of the subsection is "Applications for Domestic Violence Protection." However, the present subsection actually applies to both domestic violence proceedings and to harassment protection orders and the suggested rule change would expand the subsection to include sexual assault protection orders. The suggested caption, "Applications for Protection Orders", more accurately describes the subsection.

     Finally, this suggested rule change clarifies the use of the information in the JIS by the court in a protection order proceeding. The second sentence of ER 1101 (c)(4) sets forth the procedure that a judge must follow if the judge proposes to consider information from a domestic violence database in a protection order proceeding. The legislation which enacted the Sexual Assault Protection Order Act included a section that amended RCW 26.50.160 to include this new type of order in the judicial information system database of protective orders. (Laws of 2006, ch. 138, §26.) The suggested rule change adds the word "provided" to the beginning of the language relating to state databases to make clear that the language is a proviso to the rule's exclusion of the protection order statutes, not a limitation on that which is allowed by subsection (4). The proviso should apply to all databases used by Washington courts. The suggested change in the second sentence of the subsection replaces the term "domestic violence database" with "civil or criminal database". This change reflects that the judicial information system database created by RCW 26.50.160 is required by that statute to contain information on many different types of civil and criminal protection orders, not just domestic violence protection orders.

RULE 1101. APPLICABILITY OF RULES

     (a) - (b) [No changes.]

     (c) When Rules Need Not Be Applied. The rules (other than with respect to privileges) need not be applied in the following situations:

     (1) - (3) [No changes.]

     (4) Applications for Domestic Violence Protection Orders. Protection order proceedings under RCW 7.90, 10.14 and 26.50 and 10.14. Provided, Wwhen a judge proposes to consider information from a domestic violence criminal or civil database, the judge shall disclose the information to each party present at the hearing; on timely request, provide each party with an opportunity to be heard; and, take appropriate measures to alleviate litigants' safety concerns. The judge has discretion not to disclose information that he or she does not propose to consider.

     (d) [No changes.]

     Purpose: The suggested changes to CrRLJ 4.1 concern a defendant's access to an attorney at the arraignment stage of a criminal proceeding. CrRLJ 4.1 governs procedures for arraignments in courts of limited jurisdiction. In these courts, arraignment is usually the first appearance for persons charged with a misdemeanor offense. (It is usually only in-custody misdemeanor defendants who are seen at a CrRLJ 3.2.1 preliminary appearance.)

     At arraignment, defendants are apprised of their rights in a criminal case and of the charges against them, for the first time. At the arraignment hearing the judge may also make a finding of probable cause and set bail and other conditions of release, in addition to asking a defendant to enter a plea of guilty or not guilty. While arraignment is a critical stage in the proceedings and thus should require the presence of counsel pursuant to CrRLJ 3.1, the current version of CrRLJ 4.1 is ambiguous regarding the requirement for counsel. The suggested amendments to this rule clarify the requirement for counsel to be available at arraignment for those unable to obtain counsel.

     The current version of CrRLJ 4.1 states that a defendant may not be forced to enter a plea to the complaint until he or she has had a reasonable time to examine it and to consult with a lawyer, "if requested". See CrRLJ 4.1 (a)(2). The rule also requires the judge to "advise" a defendant on the record of the "right to be represented by a lawyer at arraignment and to have an appointed lawyer for arraignment if the defendant cannot afford one". See CrRLJ 4.1 (a)(3). By contrast, the superior court arraignment rule, CrR 4.1(c), requires that the judge inform any defendant who appears without counsel at arraignment of his or her right to have counsel before being arraigned. In the superior court, a judge is also obligated to assign counsel to a defendant if a defendant is not represented and is unable to obtain counsel.

     The lack of clarity in CrRLJ 4.1 plays some role in the absence of uniformity in arraignment practices in courts of limited jurisdiction in Washington State. While some local jurisdictions provide counsel for unrepresented defendants at arraignment, many do not. The failure to provide counsel at arraignment erodes the crucial right to counsel firmly established in the Sixth and Fourteenth Amendments to the U.S. Constitution and in the Washington State Constitution, where the right to counsel is co-extensive with its federal counterpart. See Powell v. Alabama, 287 U.S. 45 (1932); Kirby v. Illinois, 406 U.S. 682 (1972); Coleman v. Alabama, 399 U.S. 1 (1970); State v. Long, 104 Wn.2d 285 (1985). At arraignment calendars without defense counsel, prosecutors are able to negotiate directly with unrepresented and often unsophisticated defendants at their first appearance and judges often take guilty pleas from hurried and confused defendants before the defendants can review the matter with a lawyer. Moreover, in many courts, neither a defense lawyer nor a prosecutor is present at the arraignment hearing. The judge then is forced to play the roles traditionally assigned to advocates in our criminal justice system. A 2006 decision of the Commission on Judicial Conduct, In re Ottinger, identified many defective practices relating to the judge's handling of preliminary matters at arraignment. However, the decision lauds Judge Ottinger's decision to require a public defender at arraignment calendars to help remedy the concerns of the Judicial Conduct Commission:

     Following June 2005, Respondent began requiring both prosecutors and public defenders to attend all arraignments and bail hearings in her courtroom. While Respondent ultimately waived the requirement for prosecutors to appear, she did continue to require the presence of public defenders at this critical stage of the proceeding.... This procedure ensured that defendants would have attorneys present to advise them at their first appearance and arraignments. This procedure was a very positive change, protected defendants' rights, and may serve as a model for other courts.

     In re Ottinger, CJC No. 4475-F-119, page 6, lines 20-28 through page 7, line 1 (2006). (Commission recommendation approved by Washington Supreme Court in In re Ottinger, 2006 Wash.LEXIS 600 (2006).)

     The suggested changes to CrRLJ 4.1 eliminate any ambiguity about the right to counsel at arraignment. Suggested CrRLJ 4.1 (c)(1) mirrors the language found in CrR 4.1(c), which is the superior court rule. CrRLJ 4.1 (c)(2) is added to make it clear that an attorney who acts as an "attorney of the day" for all unrepresented defendants fulfills the role of counsel. An "attorney of the day," by contract, represents all unrepresented defendants in a limited manner, i.e., for arraignment purposes only. This provision will allow compliance with the new rule by courts that do not screen and approve for appointment of counsel prior to arraignment. The rule does not require use of an "attorney of the day" and leaves courts free to provide counsel in other ways, such as screened appointments or video arraignments.

     The suggested rule amendments also eliminate the waiver of jury trial at arraignment (CrRLJ 4.1 (c)(1)). A waiver at this stage is not found in the superior court arraignment rule and waiver of the constitutional right to jury at a preliminary appearance, without the benefit of time to thoroughly consult with counsel, is ill-advised. Although the current rule allows a defendant to withdraw the waiver within 10 days, this does not allow sufficient time to consult with counsel.

     The changes proposed in the arraignment rule for courts of limited jurisdiction will create greater uniformity of practice, which leads to greater confidence within the Bar and the public. Judges who have not had the support of the executive for funds to provide counsel for unrepresented defendants at arraignment will have the force of the court rule behind budget requests.

     (a) Procedures. After the complaint or the citation and notice has been filed, the defendant shall be arraigned thereon in open court.

     (1) Time.

     (1) Defendant Detained in Jail. (i) The defendant shall be arraigned not later than 15 14 days after the date the complaint or citation and notice is filed in court, if the defendant is (A) (i) detained in a county or city jail in the county where the charges are pending, or (B) (ii) subject to conditions of release imposed in connection with the same charges.

     (ii) (2) Defendant Not Detained in Jail. The defendant shall be arraigned not later than 15 14 days after that appearance which next follows the filing of the complaint or citation and notice, if the defendant is not detained in such jail or subject to such conditions of release. Any delay in bringing the defendant before the court shall not affect the allowable time for arraignment, regardless of the reason for the delay. For purposes of this rule, "appearance" has the meaning defined in CrRLJ 3.3 (a)(3)(iii).

     (2) Reading and Plea. Arraignment shall consist of reading the complaint or the citation and notice to the defendant or stating to him or her the substance of the charge and calling on the defendant to plead thereto. The defendant shall be given a copy of the complaint or the citation and notice before being called upon to plead, unless a copy has previously been supplied. The defendant shall not be required to plead to the complaint or the citation and notice until he or she shall have had a reasonable time to examine it and to consult with a lawyer, if requested.

     (3) Advisement. At arraignment, unless the defendant appears with a lawyer, the court shall advise the defendant on the record:

     (i) of the right to trial by jury if applicable; and

     (ii) of the right to be represented by a lawyer at arraignment and to have an appointed lawyer for arraignment if the defendant cannot afford one.

     (b) Objection to Arraignment Date -- Loss of Right to Object. A party who objects to the date of arraignment on the ground that it is not within the time limits prescribed by this rule must state the objection to the court at the time of the arraignment. If the court rules that the objection is correct, it shall establish and announce the proper date of arraignment. That date shall constitute the arraignment date for purposes of CrRLJ 3.3. A party who fails to object as required shall lose the right to object, and the arraignment date shall be conclusively established as the date upon which the defendant was actually arraigned.

     (c) Waiver. Counsel.

     (1) Jury trial. A waiver of jury trial at arraignment must be in writing and signed by the defendant. If the defendant waives a jury trial at arraignment, he or she must be advised of the right to withdraw the waiver and request a jury trial within 10 days of arraignment. Requirement of Counsel. If the defendant appears without counsel, the court shall inform the defendant of his or her right to have counsel before being arraigned. The court shall inquire if the defendant has counsel. If the defendant is not represented and is unable to obtain counsel, counsel shall be assigned to the defendant by the court, unless otherwise provided.

     (2) Lawyer. If the defendant chooses to proceed without a lawyer, the court shall determine on the record that the waiver is made voluntarily, competently and with knowledge of the consequences. The defendant must be advised that waiver of a lawyer at arraignment does not preclude the defendant from asserting the right to a lawyer later in the proceedings. Limited Appearance Counsel. Counsel who is present to assist unrepresented defendants at an arraignment calendar may fulfill the requirement of counsel under this provision.

     (d) Name. At arraignment, the court shall ask the defendant his or her true name. If the defendant's name has been incorrectly stated in the complaint or citation and notice, the court shall order the complaint or citation and notice to be corrected accordingly. Waiver of Counsel. If the defendant chooses to proceed without counsel, the court shall determine on the record that the waiver is made voluntarily, competently and with knowledge of the consequences. If the court finds the waiver valid, an appropriate finding shall be entered in the record. Unless the waiver is valid, the court shall not proceed with the arraignment until counsel is provided. Waiver of counsel at arraignment shall not preclude the defendant from claiming the right to counsel in subsequent proceedings in the cause, and the defendant shall be so informed.

     (e) Appearance by Defendant's Lawyer. Except as otherwise provided by statute or by local court rule, a lawyer may enter an appearance or a plea of not guilty on behalf of a client for any offense. Such appearance or plea may be entered only after a complaint or citation and notice has been filed. Name. Defendant shall be asked his or her true name. If the defendant alleges that their true name is one other than that by which he or she is charged, it must be entered in the record, and subsequent proceedings shall be had against him or her by that name or other names relevant to the proceedings.

     (1) The appearance or the plea of not guilty shall be made only in writing or in open court, and eliminates the need for a further arraignment.

     (2) An appearance that waives arraignment but fails to state a plea shall be deemed to constitute entry of a plea of not guilty.

     (3) An appearance under this rule constitutes a waiver of any defect in the complaint or the citation and notice except for failure to charge a crime which may be raised at any time and except for any other defect that is specifically stated in writing or on the record at the time the appearance is entered.

     (4) A written appearance shall commence the running of the time periods established in rule 3.3 from the date of its receipt by the court, unless the time periods have previously been commenced by an appearance in open court.

     (5) Telephonic requests or notices by either the defendant or the defendant's lawyer shall not constitute an arraignment or an appearance or entry of a plea, and shall not commence the running of the time periods under rule 3.3.

     (6) The appearance by a lawyer authorized by this rule shall be construed as an "arraignment" under the other provisions of these rules.

     (f) Reading. The complaint or citation and notice or the substance of the charge, shall be read to the defendant, unless the reading is waived, and a copy shall be given to the defendant.

     (g) Appearance by Defendant's Lawyer. Except as otherwise provided by statute or by local court rule, a lawyer may enter an appearance or a plea of not guilty on behalf of a client for any offense. Such appearance or plea may be entered only after a complaint or citation and notice has been filed.

     (1) The appearance or the plea of not guilty shall be made only in writing or in open court, and eliminates the need for a further arraignment.

     (2) An appearance that waives arraignment but fails to state a plea shall be deemed to constitute entry of a plea of not guilty.

     (3) An appearance under this rule constitutes a waiver of any defect in the complaint or the citation and notice except for failure to charge a crime which may be raised at any time and except for any other defect that is specifically stated in writing or on the record at the time the appearance is entered.

     (4) A written appearance shall commence the running of the time periods established in rule 3.3 from the date of its receipt by the court, unless the time periods have previously been commenced by an appearance in open court.

     (5) Telephonic requests or notices by either the defendant or the defendant's lawyer shall not constitute an arraignment or an appearance or entry of a plea, and shall not commence the running of the time periods under rule 3.3.

     (6) The appearance by a lawyer authorized by this rule shall be construed as an "arraignment" under the other provisions of these rules.

     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.

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