WSR 09-23-038

RULES OF COURT

STATE SUPREME COURT


[ November 5, 2009 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO IRLJ 3.1(b)-CONTESTED HEARINGS-PRELIMINARY PROCEEDINGS )

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ORDER

NO. 25700-A-934


The District Municipal Court Judges Association having recommended the adoption of the proposed amendments to IRLJ 3.1(b)-Contested Hearings-Preliminary Proceedings, 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 amendment as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in January 2010.

(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 April 30, 2010. 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 November, 2009.
For the Court
Gerry L. Alexander
CHIEF JUSTICE


GR 9 Cover Sheet


Suggested Changes to IRLJ 3.1

(CONTESTED HEARINGS -- PRELIMINARY PROCEEDINGS)



Purpose: The suggested changes to IRLJ 3.1 concern a defendant's right to discovery in an infraction case. Currently, only the citing officer's sworn statement and the names of any witnesses not identified in the citing officer's sworn statement must be turned over by the prosecuting authority pursuant to a request for discovery. IRLJ 3.1(b). However, in several jurisdictions, law enforcement agencies have begun using video recording and photos as evidence of infractions. For example, red light camera tickets involve photos and video.

Given this use of technology by law enforcement, which is becoming more common every year, it seems appropriate to require that the prosecuting authority include in discovery any evidence which has been gathered in this manner, rather than requiring defendants to separately subpoena photos or video/DVDs from the prosecuting authority.

Under the suggested rule change, the prosecuting authority must either provide a copy of video or photographic evidence that the prosecuting authority proposes to use at trial, or else provide the website address where the evidence has been posted by the jurisdiction. For example, jurisdictions with red light cameras typically post the photographs showing the alleged misconduct for persons to review when they get a ticket in the mail. The defendant is able to access the website using the instructions sent by the jurisdiction.

The DMCJA also suggests amending IRLJ 3.1(b) to clarify when evidence may be suppressed at trial if discovery has not been produced by the prosecuting authority in a timely manner.



RULE IRLJ 3.1

CONTESTED HEARINGS -- PRELIMINARY PROCEEDINGS



(a) Subpoena. The defendant and the plaintiff prosecuting authority may subpoena witnesses necessary for the presentation of their respective cases. Witnesses should be served at least 7 days before the hearing. The subpoena may be issued by a judge, court commissioner, or clerk of the court or by a party's lawyer. If a party's lawyer issues a subpoena, a copy shall be filed with the court and with the office of the prosecuting authority assigned to the court in which the infraction is filed on the same day it is sent out for service. A request that an officer appear at a contested hearing pursuant to rule 3.3(c) shall be filed on a separate pleading. A subpoena may be directed for service within their jurisdiction to the sheriff of any county or any peace officer of any municipality in the state in which the witness may be or it may be served as provided in CR 45(c), or it may be served by first-class mail, postage prepaid, sent to the witnesses' last known address. Service by mail shall be deemed complete upon the third day following the day upon which the subpoena was placed in the mail. If the subpoena is for a witness outside the county, a judge must approve of the subpoena.

(b) Discovery. Upon written demand of the defendant at least 14 days before a contested hearing, filed with the court and served on the office of the prosecuting authority assigned to the court in which the infraction is filed, the plaintiff's lawyer prosecuting authority shall at least 7 days before the hearing provide the defendant or the defendant's lawyer with: (1) a copy of the citing officer's sworn statement; (2) a copy of video or photographic evidence the prosecutor proposes to introduce at trial, unless in reply to the discovery request the prosecutor provides the address to a website where such evidence is accessible to the defendant; and (3) and with the names of any witnesses not identified in the citing officer's sworn statement. No other discovery shall be required. If the prosecuting authority provides the citing officer's sworn statement any portion of the discovery less than 7 days before the hearing but not later than one day before the hearing, such untimely discovery the citing officer's sworn statement shall be suppressed only upon a showing of prejudice in the presentation of the defendant's case. If the prosecuting authority, without reasonable excuse or justification, fails to provide the citing officer's sworn statement any portion of the discovery prior to the day of the hearing, the statement shall portion of discovery not provided shall be suppressed. No other discovery shall be required. Neither party is precluded from investigating the case, and neither party shall impede another party's investigation. A request for discovery pursuant to this section shall be filed on a separate pleading.

(c) Amendment of Notice. The court may permit a notice of infraction to be amended at any time before judgment if no additional or different infraction is charged, and if substantial rights of the defendant are not thereby prejudiced. A continuance shall be granted if the defendant satisfies the court that the additional time is needed to defend against the amended notice of infraction.

(d) Sufficiency. No notice of infraction shall be deemed insufficient for failure to contain a definite statement of the essential facts constituting the specific infraction which the defendant is alleged to have committed, nor by reason of defects or imperfections which do not tend to prejudice substantial rights of the defendant.

Adopted as JTIR effective January 1, 1981. Changed from JTIR to IRLJ effective September 1, 1992; amended effective January 2, 1997; amended effective January 3, 2006; January 2, 2007.]

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