WSR 16-23-013

RULES OF COURT

[November 2, 2016]

The SB 5177 Court Video Testimony Work Group, having recommended the proposed amendments to CrR 3.4—Presence of the Defendant, and—CrRLJ 3.4—Presence of the Defendant, and the Court having considered the amendments thereto;

Now, therefore, it is hereby

(a) That pursuant to the provisions of GR 9(g), the proposed amendments 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.

(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, 2017. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 2nd day of November, 2016.

 

A. Name of Proponent: SB 5177 (Court Video Testimony) Work Group

B. Spokesperson: Judge Ronald Kessler, Work Group Chair

C. Purpose: CrR 3.4 governs issues regarding the presence of the defendant in Courts of Limited Jurisdiction. Senate Bill 5177, section 13, requested the Administrative Office of the Courts to convene and staff a work group "to consider and facilitate the use of video testimony by state competency evaluators and other representatives of the department of social and health services and the state hospitals in court matters under chapter 10.77 RCW". The work group was requested to complete its work by June 30, 2016.

The Administrative Office of the Courts formed a work group comprised of representatives from the Superior Court Judges' Association (SCJA), the District and Municipal Court Judge's Association, the Association of Washington Superior Court Administrators, the Washington Association of Prosecuting Attorneys, Disability Rights Washington, the Department of Social and Health Services (Western and Eastern State Hospitals), Washington State Association of County Clerks, the District and Municipal Court Management Association, Washington Defender Association, and the Washington State Association of Counties.

The Work Group met over the course of several months. Discussion included the question of whether or not the Confrontation Clauses were implicated. While courts have applied the Confrontation Clause to some pretrial hearings, it appears that the issue is whether or not the purpose of the hearing "retains a direct relationship with the trial," Kentucky v. Stincer, 482 U.S. 730, 740, 107 S. Ct. 2658, 2664, 96 L. Ed. 2d 631 (1987), Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), United States v. Hamilton, 107 F.3d 499, 506 (7th Cir.1997), United States v. Algere, 457 F. Supp. 2d 695, 700 (E.D. La. 2005), United States v. Makris, 398 F.Supp. 507, 509-11 (D.C.Tex.1975), aff'd, 535 F.2d 899 (5th Cir.1976). The Work Group decided to request the proposed rule amendment. The proposed amendment presumes that the forensic evaluator will appear by video in hearings under 10.77 RCW. The proposed amendment assumes that all other parties will be physically present in the courtroom for the hearing. A party can file a written motion objecting to the hearing being conducted by video conference. The Department of Social and Health Services has some funding that may be available to assist courts in the purchase of video conference equipment.

Appearing by video allows the forensic evaluators to minimize travel time and maximize time spent conducting evaluations. It is hoped that this increased efficiency will shorten the amount of time a defendant spends waiting for an evaluation and that when necessary, the competency restoration process can begin earlier.

This proposed amendment was deemed necessary because the current rule would require the agreement of the parties and the approval of the trial court judge before conducting a competency hearing under 10.77 RCW. The Work Group did not believe this provision would provide the desired effect of making the competency hearing process more efficient and timely.

The Work Group requests that this proposed amendment be considered as expeditiously as possible.

D. Hearing: A hearing is not requested.

E. Expedited Consideration: Expedited consideration is requested as it is desirable to have hearings conducted under 10.77 RCW be heard as timely and efficiently as possible.

(a) When Necessary. The defendant shall be present at the arraignment, at every stage of the trial including the empaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules, or as excused or excluded by the court for good cause shown.

(b) Effect of Voluntary Absence. The defendant's voluntary absence after the trial has commenced in his or her presence shall not prevent continuing the trial to and including the return of the verdict. A corporation may appear by its lawyer for all purposes. In prosecutions for offenses punishable by fine only, the court, with the written consent of the defendant, may permit arraignment, plea, trial and imposition of sentence in the defendant's absence.

(c) Defendant Not Present. If in any case the defendant is not present when his or her personal attendance is necessary, the court may order the clerk to issue a bench warrant for the defendant's arrest, which may be served as a warrant of arrest in other cases.

(d) Video Conference Proceedings.

(1) Authorization. Preliminary appearances held pursuant to CrR 3.2.1, arraignments held pursuant to this rule and CrR 4.1, bail hearings held pursuant to CrR 3.2, and trial settings held pursuant to CrR 3.3, may be conducted by video conference in which all participants can simultaneously see, hear, and speak with each other. Such proceedings shall be deemed held in open court and in the defendant's presence for the purposes of any statute, court rule or policy. All video conference hearings conducted pursuant to this rule shall be public, and the public shall be able to simultaneously see and hear all participants and speak as permitted by the trial court judge. Any party may request an inperson hearing, which may in the trial court judge's discretion be granted.

(2) Agreement. Other trial court proceedings including the entry of a Statement of Defendant on Plea of Guilty as provided for by CrR 4.2 may be conducted by video conference only by agreement of the parties, either in writing or on the record, and upon the approval of the trial court judge pursuant to local court rule.

(3) Standards for Video Conference Proceedings. The judge, counsel, all parties, and the public must be able to see and hear each other during proceedings, and speak as permitted by the judge. Video conference facilities must provide for confidential communications between attorney and client and security sufficient to protect the safety of all participants and observers. In interpreted proceedings, the interpreter must be located next to the defendant and the proceeding must be conducted to assure that the interpreter can hear all participants.

A. Name of Proponent: SB 5177 (Court Video Testimony) Work Group

B. Spokesperson: Judge Ronald Kessler, Work Group Chair

C. Purpose: CrRLJ 3.4 governs issues regarding the presence of the defendant in Courts of Limited Jurisdiction. Senate Bill 5177, section 13, requested the Administrative Office of the Courts to convene and staff a work group "to consider and facilitate the use of video testimony by state competency evaluators and other representatives of the department of social and health services and the state hospitals in court matters under chapter 10.77 RCW". The work group was requested to complete its work by June 30, 2016.

The Administrative Office of the Courts formed a work group comprised of representatives from the Superior Court Judges' Association (SCJA), the District and Municipal Court Judge's Association, the Association of Washington Superior Court Administrators, the Washington Association of Prosecuting Attorneys, Disability Rights Washington, the Department of Social and Health Services (Western and Eastern State Hospitals), Washington State Association of County Clerks, the District and Municipal Court Management Association, Washington Defender Association, and the Washington State Association of Counties.

The Work Group met over the course of several months. Discussion included the question of whether or not the Confrontation Clauses were implicated. While courts have applied the Confrontation Clause to some pretrial hearings, it appears that the issue is whether or not the purpose of the hearing "retains a direct relationship with the trial," Kentucky v. Stincer, 482 U.S. 730, 740, 107 S. Ct. 2658, 2664, 96 L. Ed. 2d 631 (1987), Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), United States v. Hamilton, 107 F.3d 499, 506 (7th Cir.1997), United States v. Algere, 457 F. Supp. 2d 695, 700 (E.D. La. 2005), United States v. Makris, 398 F.Supp. 507, 509-11 (D.C.Tex.1975), aff'd, 535 F.2d 899 (5th Cir.1976). The Work Group decided to request the proposed rule amendment. The proposed amendment presumes that the forensic evaluator will appear by video in hearings under 10.77 RCW. The proposed amendment assumes that all other parties will be physically present in the courtroom for the hearing. A party can file a written motion objecting to the hearing being conducted by video conference. The Department of Social and Health Services has some funding that may be available to assist courts in the purchase of video conference equipment.

Appearing by video allows the forensic evaluators to minimize travel time and maximize time spent conducting evaluations. It is hoped that this increased efficiency will shorten the amount of time a defendant spends waiting for an evaluation and that when necessary, the competency restoration process can begin earlier.

This proposed amendment was deemed necessary because the current rule would require the agreement of the parties and the approval of the trial court judge before conducting a competency hearing under 10.77 RCW. The Work Group did not believe this provision would provide the desired effect of making the competency hearing process more efficient and timely.

The Work Group requests that this proposed amendment be considered as expeditiously as possible.

D. Hearing: A hearing is not requested.

E. Expedited Consideration: Expedited consideration is requested as it is desirable to have hearings conducted under 10.77 RCW be heard as timely and efficiently as possible.

(a) When Necessary. The defendant shall be present at the arraignment, at every stage of the trial including the empaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules, or as excused or excluded by the court for good cause shown.

(b) Effect of Voluntary Absence. The defendant's voluntary absence after the trial has commenced in his or her presence shall not prevent continuing the trial to and including the return of the verdict. A corporation may appear by its lawyer for all purposes. In prosecutions for offenses punishable by fine only, the court, with the written consent of the defendant, may permit arraignment, plea, trial and imposition of sentence in the defendant's absence.

(c) Defendant Not Present. If in any case the defendant is not present when his or her personal attendance is necessary, the court may order the clerk to issue a bench warrant for the defendant's arrest, which may be served as a warrant of arrest in other cases.

(d) Video Conference Proceedings.

(1) Authorization. Preliminary appearances held pursuant to CrRLJ 3.2.1(d), arraignments held pursuant to this rule and CrRLJ 4.1, bail hearings held pursuant to CrRLJ 3.2, and trial settings held pursuant to CrRLJ 3.3(f), may be conducted by video conference in which all participants can simultaneously see, hear, and speak with each other. Such proceedings shall be deemed held in open court and in the defendant's presence for the purposes of any statute, court rule or policy. All video conference hearings conducted pursuant to this rule shall be public, and the public shall be able to simultaneously see and hear all participants and speak as permitted by the trial court judge. Any party may request an inperson hearing, which may in the trial court judge's discretion be granted.

(2) Agreement. Other trial court proceedings including the entry of a Statement of Defendant on Plea of Guilty as provided for by CrRLJ 4.2 may be conducted by video conference only by agreement of the parties, either in writing or on the record, and upon the approval of the trial court judge pursuant to local court rule.

(3) Standards for Video Conference Proceedings. The judge, counsel, all parties, and the public must be able to see and hear each other during proceedings, and speak as permitted by the judge. Video conference facilities must provide for confidential communications between attorney and client and security sufficient to protect the safety of all participants and observers. In interpreted proceedings, the interpreter must be located next to the defendant and the proceeding must be conducted to assure that the interpreter can hear all participants.