WSR 18-15-043
RULES OF COURT
STATE SUPREME COURT
[July 11, 2018]
IN THE MATTER OF THE SUGGESTED AMENDMENTS TO CrR 4.7—DISCOVERY; CrRLJ 4.7—DISCOVERY; AND SUGGESTED NEW CRIMINAL RULES CrR 3.7—RECORDING INTERROGATIONS; CrR 3.8—RECORDING EYEWITNESS IDENTIFICATION PROCEDURE; CrR 3.9—IN-COURT EYEWITNESS IDENTIFICATION; CrR 4.11—RECORDING WITNESS INTERVIEWS; CrRLJ 3.7—RECORDING INTERROGATIONS; CrRLJ 3.8—RECORDING EYEWITNESS IDENTIFICATION PROCEDURE; CrRLJ 3.9—IN-COURT EYEWITNESS IDENTIFICATION; CrRLJ 4.11—RECORDING WITNESS INTERVIEWS
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ORDER
NO. 25700-A-1236
The Washington Association of Criminal Defense Lawyers, having recommended the suggested amendments to CrR 4.7—Discovery; CrRLJ 4.7—Discovery;; and Suggested New Criminal Rules CrR 3.7—Recording Interrogations; CrR 3.8—Recording Eyewitness Identification Procedure; CrR 3.9—In-Court Eyewitness Identification; CrR 4.11—Recording Witness Interviews; CrRLJ 3.7—Recording Interrogations; CrRLJ 3.8—Recording Eyewitness Identification Procedure; CrRLJ 3.9—In-Court Eyewitness Identification; CrRLJ 4.11—Recording Witness Interviews, and the Court having considered the amendments and comments submitted thereto;
Now, therefore, it is hereby
ordered:
(a) That pursuant to the provisions of GR 9(g), the suggested 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 in January 2019.
(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, 2019. 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 11th day of July, 2018.
 
For the Court
 
 
 
Fairhurst, C.J.
 
CHIEF JUSTICE
GR 9 COVER SHEET
Suggested New Criminal Rule CrR 3.7 Recording Interrogations
Date:
February 23, 2018
Proponent:
Washington Association of
Criminal Defense Lawyers
1511 Third Ave., Suite 503
Seattle, WA 98101
Ph. (206) 623-1302
Fax. (206) 623-4257
 
 
 
 
Spokesperson:
Kent Underwood, WACDL Court Rules Committee Co-chair
Purpose:
The purpose of this rule is to improve the reliability of interrogation evidence by having a full record of the entire interrogation.
Public Hearing:
Not requested.
Expedited
Consideration:
Not requested.
SUGGESTED NEW CRIMINAL RULE CrR 3.7
CrR 3.7 RECORDING INTERROGATIONS
(a) Recording Interrogations. Custodial and non-custodial interrogations of persons under investigation for any crime are to be recorded by an audiovisual recording made by use of an electronic or digital audiovisual device.
(b) Exceptions.
(1) A spontaneous statement not made in response to a question;
(2) The person requests prior to making the statement that an electronic recording not be made, and the request is electronically recorded;
(3) Malfunction of equipment, provided due diligence has been met in maintaining the recording equipment;
(4) Substantial exigent circumstances exist which prevent the recording;
(5) Statements made as a part of routine processing or "booking"; when the interrogation takes place in another jurisdiction.
The State has the burden to prove by a preponderance of the evidence that an exception is applicable.
(c) Consequences of Failure to Record. If the court finds by a preponderance of the evidence that a person was subjected to custodial or non-custodial interrogation in violation of this rule, then any statements made by the person during or following that non-recorded custodial interrogation, even if otherwise in compliance with this section, are presumed to be inadmissible in any criminal proceeding against the person, except for purposes of impeachment.
The presumption of inadmissibility may be overcome by clear and convincing evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.
(d) Preservation. Recordings are to be preserved until the conviction is final and all direct and habeas corpus appeals are exhausted, or until the prosecution is barred by law. In all class A felonies, recordings are to be preserved for 99 years.
GR 9 COVER SHEET
Suggested New Criminal Rule CrR 3.8 Recording Eyewitness Identification Procedure
Date:
February 23, 2018
Proponent:
Washington Association of
Criminal Defense Lawyers
1511 Third Ave., Suite 503
Seattle, WA 98101
Ph. (206) 623-1302
Fax. (206) 623-4257
 
 
 
 
Spokesperson:
Kent Underwood, WACDL Court Rules Committee Co-chair
Purpose:
The purpose of the rule is to improve the reliability of eyewitness identification evidence by recording the eyewitness identification procedure, thereby allowing for subsequent review.
Public Hearing:
Not requested.
Expedited
Consideration:
Not requested.
SUGGESTED NEW CRIMINAL RULE CrR 3.8
CrR 3.8 RECORDING EYEWITNESS IDENTIFICATION PROCEDURE
(a) Recording. An out-of-court identification procedure resulting from a photo array, live lineup, or show-up identification procedure conducted by a law enforcement officer shall not be admissible unless a record of the identification procedure is made.
(b) Documenting the Procedure.
(1) All identification procedures and related interviews conducted with any victim/witness should be fully documented. Video-recording should be used when practicable. Audio recording is the preferred alternative. If neither video- nor audio-recording is possible, administrators should produce a detailed written report of the interview or identification procedure immediately following completion of the procedure.
(2) A confidence statement should be obtained immediately after the victim/witness makes a decision. The exact words used by the victim/witness in expressing his/her degree of confidence should be documented.
(c) Contents. The record of an out-of-court identification procedure is to include details of what occurred at the out-of-court identification, including the following:
(1) The place where the identification procedure was conducted;
(2) The dialogue between the witness and the officer who administered the procedure;
(3) The results of the identification procedure, including any selection, or lack of selection, made by the witness/victim;
(4) If a live lineup, a photo of the lineup; if the identification procedure includes movements, a video of the identification procedure; if the identification procedure includes speaking, an audio recording of the speaking and a photo of the identification procedure;
(5) If a photo lineup, the photographic array, mug books or digital photographs used, including an unaltered, accurate copy of the photographs used, and an accurate copy upon which the witness indicated his or her selection;
(6) The identity of persons who witnessed the live lineup, photo lineup, or showup, including the location of such witnesses and whether those witnesses could be seen by the witness making the identification decision;
(7) The identity of any individuals with whom the witness has spoken about the identification, at any time before, during, or immediately after the official identification procedure, and a detailed summary of what was said. This includes the identification of both law enforcement officials and private actors who are not associated with law enforcement.
(c) Remedy: If the record that is prepared is lacking in important details as to what occurred at the out-of-court identification procedure, and if it was feasible to obtain and preserve those details, the court may, in its sound discretion and consistent with appropriate case law, declare the identification inadmissible, redact portions of the identification testimony, admit expert testimony, and/or fashion an appropriate jury instruction to be used in evaluating the reliability of the identification.
GR 9 COVER SHEET
Suggested New Criminal Rule CrR 3.9 In-Court Eyewitness Identification
Date:
June 5, 2018
Proponent:
Washington Association of
Criminal Defense Lawyers
1511 Third Ave., Suite 503
Seattle, WA 98101
Ph. (206) 623-1302
Fax. (206) 623-4257
 
 
 
 
Spokesperson:
Kent Underwood, WACDL Court Rules Committee Co-chair
Purpose:
The purpose of the rule is to exclude in-court identification of an Accused where there has been no prior out-of-court eyewitness identification procedure and the perpetrator is unknown to the witness. Such in-court eyewitness identifications are suggestive, often unreliable, unduly prejudicial, burden shifting, and improper opinion evidence. This rule is not intended to presume that in-court identifications are admissible if there has been an out-of-court eyewitness identification procedure.
Public Hearing:
Not requested.
Expedited
Consideration:
Not requested.
SUGGESTED NEW CRIMINAL RULE CrR 3.9
CrR 3.9 IN-COURT EYEWITNESS IDENTIFICATION
In-Court Identifications. In-court identifications are inadmissible where the perpetrator is unknown to the witness and there has been no prior out-of-court eyewitness identification procedure.
GR 9 COVER SHEET
Suggested Amendment to Criminal Rule CrR 4.7 Discovery
Date:
June 5, 2018
Proponent:
Washington Association of
Criminal Defense Lawyers
1511 Third Ave., Suite 503
Seattle, WA 98101
Ph. (206) 623-1302
Fax. (206) 623-4257
 
 
 
 
Spokesperson:
Kent Underwood, WACDL Court Rules Committee Co-chair
Purpose:
The purposes of these amendments are: (1) to create CrR 4.7 (a)(2)(iv), requiring the prosecuting attorney to provide all eyewitness identification procedures to the defense; (2) amend CrR 4.7 (a)(3) and (4) to bring the rule into accord with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,  10 L.Ed.2d 215 (1963), and its progeny; and (3) to amend CrR 4.7 (h)(3) to permit defense counsel to provide properly redacted discovery to defendants.
Public Hearing:
Not Requested.
Expedited
Consideration:
WACDL requests expedited consideration under GR 9 (e)(2)(E) because conflict in case law is an exceptional circumstance that justifies expedited consideration, specifically as relates to CrR 4.7 (a)(4).
SUGGESTED AMENDMENT TO CRIMINAL RULE CrR 4.7 DISCOVERY
CrR 4.7 DISCOVERY
(a) Prosecutor's Obligations
(1) Unchanged.
(2) The prosecuting attorney shall disclose to the defendant:
(i) Unchanged.
(ii) Unchanged.
(iii) Unchanged.
(iv) All records, including notes, reports, and electronic recordings relating to an identification procedure, as well as all identification procedures, whether or not the procedure resulted in an identification or the procedure resulted in the identification of a person other than the suspect.
 (3) Except as is otherwise provided as to protective orders, the prosecuting attorney shall disclose to the defendant's counsel any material or information within the prosecuting attorney's knowledge which tends to negate defendant's guilt as to the offense charged., and/or which tends to impeach a State's witness.
 (4) The prosecuting attorney's obligation under this section is limited to material and information within the knowledge, possession or control of members of the prosecuting attorney's staff.includes material and evidence favorable to the defendant and material to the defendant's guilt or punishment, and/or which tends to impeach a State's witness. This includes favorable evidence known to others acting on the State's behalf in the case, including the police. The prosecuting authority's duty under this rule not conditioned on a defense request for such material. Such duty is ongoing, even after plea or sentencing.
(b) Defendant's Obligations. Unchanged.
(c) Additional disclosures Upon Request and Specification. Unchanged.
(d) Material Held by Others. Unchanged.
(e) Discretionary Disclosures. Unchanged.
(f) Matters Not Subject to Disclosure. Unchanged.
(g) Medical and Scientific Reports. Unchanged.
(h) Regulation of Discovery.
(1) Investigation Not to Be Impeded. Unchanged.
(2) Continuing Duty to Disclose. Unchanged.
(3) Custody of Materials. Any materials furnished to an attorney pursuant to these rules shall remain in the exclusive custody of the attorney and be used only for the purposes of conducting the party's side of the case, unless otherwise agreed by the parties or ordered by the court, and shall be subject to such other terms and conditions as the parties may agree or the court may provide. Further, a defense attorney shall be permitted to provide a copy of the materials to the defendant after making appropriatethe following redactions:which are approved by the prosecuting authority or order of the court.
(i) Dates of Birth—redact to the year of birth;
(ii) Names of Minor Children—redact to the initials;
(iii) Social Security Numbers or Federal Taxpayer Identification Numbers—redact in their entirety;
(iv) Financial Accounting Information—redact to the last four digits;
(v) Passport Numbers and Driver License Numbers—redact in their entirety;
(vi) Home Addresses—redact to the City and State; and
(vii) Phone Numbers—redact in their entirety.
Each defense attorney shall maintain a duplicate copy of discovery furnished to the defendant they are representing, which shows the redactions made in accordance with this court rule for the duration of the case. The duplicate copy of discovery with redactions shall be kept in the client's case file. If the defense attorney withdraws from representing the defendant, the duplicate copy with redactions shall be furnished to the new attorney and maintained in the new attorney's case file for the defendant for the duration of the case. The court may, upon proper showing, request to see the duplicate copy with redactions that has been furnished to the defendant, to make sure the redactions have been properly made.
(4) Protective Orders. Unchanged
(5) Excision. Unchanged
(6) In Camera Proceedings. Unchanged
(7) Sanctions. Unchanged
GR 9 COVER SHEET
Suggested Amendment to Criminal Rule CrR 4.11 Recording Witness Interviews
Date:
February 23, 2018
Proponent:
Washington Association of
Criminal Defense Lawyers
1511 Third Ave., Suite 503
Seattle, WA 98101
Ph. (206) 623-1302
Fax. (206) 623-4257
 
 
 
 
Spokesperson:
Kent Underwood, WACDL Court Rules Committee Co-chair
Purpose:
The purpose of the rule is to improve the reliability of evidence by permitting the recording of pretrial interviews thereby creating a more accurate record of the interview.
Public Hearing:
Not requested.
Expedited
Consideration:
Not requested
SUGGESTED NEW CRIMINAL RULE CrR 4.11
CrR 4.11 RECORDING WITNESS INTERVIEWS
(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 audio recording device or other means of verbatim audio recording, including a court reporter. Such interviews are subject to the court's regulation of discovery under CrR 4.7(h). Any disputes about an interview 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 witnesses.
(b) Providing Copies. Copies of recordings and transcripts, if made, shall be provided to all other parties in accordance with the requirements of CrR 4.7. If an interview is recorded by a court reporter, and is discoverable under CrR 4.7, any party or the witness may order a transcript thereof at the party's or witness's expense. Dissemination of audio recordings or transcripts of witness interviews obtained under this rule is prohibited except where required to satisfy the discovery obligations of CrR 4.7, pursuant to court order after a showing of good cause relating solely to the criminal case at issue, or as reasonably necessary to conduct a party's case.
(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.
(d) Witness Consent. A witness may refuse to be recorded. In the event that a witness refuses to be recorded, and there is a dispute regarding any statement made by the witness, the jury should be instructed to examine the statement carefully in the light of any reasons for the refusal and other circumstances relevant to that witness's testimony, including, but not limited to, bias and motive.
GR 9 COVER SHEET
Suggested New Criminal Rule CrRLJ 3.7 Recording Interrogations
Date:
February 23, 2018
Proponent:
Washington Association of
Criminal Defense Lawyers
1511 Third Ave., Suite 503
Seattle, WA 98101
Ph. (206) 623-1302
Fax. (206) 623-4257
 
 
 
 
Spokesperson:
Kent Underwood, WACDL Court Rules Committee Co-chair
Purpose:
The purpose of the rule is to improve the reliability of interrogation evidence by having a full record of the entire interrogation.
Public Hearing:
Not requested.
Expedited
Consideration:
Not requested
SUGGESTED NEW CRIMINAL RULE CrRLJ 3.7
CrRLJ 3.7 RECORDING INTERROGATIONS
(a) In General. Custodial and non-custodial interrogations of persons under investigation for any crime are to be recorded by an audiovisual recording made by use of an electronic or digital audiovisual device.
(b) Exceptions.
(1) A spontaneous statement not made in response to a question;
(2) The person requests prior to making the statement that an electronic recording not be made, and the request is electronically recorded;
(3) Malfunction of equipment, provided due diligence has been met in maintaining the recording equipment;
(4) Substantial exigent circumstances exist which prevent the recording;
(5) Statements made as a part of routine processing or "booking"; when the interrogation takes place in another jurisdiction.
The State has the burden to prove by a preponderance of the evidence that an exception is applicable.
(c) Consequences of Failure to Record. If the court finds by a preponderance of the evidence that a person was subjected to custodial or non-custodial interrogation in violation of this rule, then any statements made by the person during or following that non-recorded custodial interrogation, even if otherwise in compliance with this section, are presumed to be inadmissible in any criminal proceeding against the person, except for purposes of impeachment.
The presumption of inadmissibility may be overcome by clear and convincing evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.
(d) Preservation. Recordings are to be preserved until the conviction is final and all direct and habeas corpus appeals are exhausted, or until the prosecution is barred by law.
GR 9 COVER SHEET
Suggested New Criminal Rule CrRLJ 3.8 Recording Eyewitness Identification Procedure
Date:
February 23, 2018
Proponent:
Washington Association of
Criminal Defense Lawyers
1511 Third Ave., Suite 503
Seattle, WA 98101
Ph. (206) 623-1302
Fax. (206) 623-4257
 
 
 
 
Spokesperson:
Kent Underwood, WACDL Court Rules Committee Co-chair
Purpose:
The purpose of the rule is to create a more reliable evidence of  Eyewitness identification by recording the eyewitness  identification procedure, allowing for subsequent review.
Public Hearing:
Not requested.
Expedited
Consideration:
Not requested
SUGGESTED NEW CRIMINAL RULE CrRLJ 3.8
CrRJL 3.8 RECORDING EYEWITNESS IDENTIFICATION PROCEDURE
(a) Recording. An out-of-court identification procedure resulting from a photo array, live lineup, or show-up identification procedure conducted by a law enforcement officer shall not be admissible unless a record of the identification procedure is made.
(b) Documenting the Procedure.
(1) All interviews and identification procedures conducted with any victim/witness should be fully documented. Video-recording should be used when practicable. Audio recording is the preferred alternative. If neither video- nor audio-recording is possible, administrators should produce a detailed written report of the interview or identification procedure immediately following completion of the procedure.
(2) A confidence statement should be obtained immediately after the victim/witness makes a decision. The exact words used by the victim/witness in expressing his/her degree of confidence should be documented.
(c) Contents. The record of an out-of-court identification procedure is to include details of what occurred at the out-of court identification, including the following:
(1) The place where the identification procedure was conducted;
(2) The dialogue between the witness and the officer who administered the procedure;
(3) The results of the identification procedure, including any selection, or lack of selection, made by the witness/victim;
(4) If a live lineup, a photo of the lineup; if the identification procedure includes movements, a video of the identification procedure; if the identification procedure includes speaking, an audio recording of the speaking and a photo of the identification procedure;
(5) If a photo lineup, the photographic array, mug books or digital photographs used, including an unaltered, accurate copy of the photographs used, and an accurate copy upon which the witness indicated his or her selection;
(6) The identity of persons who witnessed the live lineup, photo lineup, or showup, including the location of such witnesses and whether those witnesses could be seen by the witness;
(7) The identity of any individuals with whom the witness has spoken about the identification, at any time before, during, or immediately after the official identification procedure, and a detailed summary of what was said. This includes the identification of both law enforcement officials and private actors who are not associated with law enforcement.
(c) Remedy. If the record that is prepared is lacking in important details as to what occurred at the out-of-court identification procedure, and if it was feasible to obtain and preserve those details, the court may, in its sound discretion and consistent with appropriate case law, declare the identification inadmissible, redact portions of the identification testimony, admit expert testimony, and/or fashion an appropriate jury instruction to be used in evaluating the reliability of the identification.
GR 9 COVER SHEET
Suggested New Criminal Rule CrRLJ 3.9 In-Court Eyewitness Identification
Date:
June 5, 2018
Proponent:
Washington Association of
Criminal Defense Lawyers
1511 Third Ave., Suite 503
Seattle, WA 98101
Ph. (206) 623-1302
Fax. (206) 623-4257
 
 
 
 
Spokesperson:
Kent Underwood, WACDL Court Rules Committee Co-chair
Purpose:
The purpose of the rule is to exclude in-court identification of an accused where the perpetrator is unknown to the witness and there has been no prior out-of-court eyewitness identification procedure. Such in-court eyewitness identifications are suggestive, often unreliable, unduly prejudicial, burden shifting and improper opinion evidence. This rule is not intended to presume that in-court identifications are admissible if there has been an out-of-court identification procedure.
Public Hearing:
Not requested.
Expedited
Consideration:
Not requested
SUGGESTED CRIMINAL RULE CrRLJ 3.9
CrRLJ 3.9 IN-COURT EYEWITNESS IDENTIFICATION
In-Court Identifications. In-court eyewitness identifications are inadmissible where the perpetrator is unknown to the witness and there has been no prior out-of-court eyewitness identification procedure.
GR 9 COVER SHEET
Suggested Amendment to Criminal Rule CrRLJ 4.7 Discovery
Date:
June 5, 2018
Proponent:
Washington Association of
Criminal Defense Lawyers
1511 Third Ave., Suite 503
Seattle, WA 98101
Ph. (206) 623-1302
Fax. (206) 623-4257
 
 
 
 
Spokesperson:
Kent Underwood, WACDL Court Rules Committee Co-chair
Purpose:
The purposes of these amendments are: (1) create CrRLJ 4.7 (a)(1)(xii), requiring the prosecuting authority to provide all eyewitness identification procedures to the defense; (2) amend CrRLJ 4.7 (a)(3) and (4), to bring the rule into accord with Bradyv. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny; and (3) to amend CrRLJ 4.7 (g)(3) to permit defense counsel to provide propely redacted discovery to defendants.
Public Hearing:
None sought.
Expedited
Consideration:
WACDL requests expedited consideration under GR 9 (e)(2)(E) because conflict in case law is an exceptional circumstance that justifies expedited consideration, specifically as relates to CrRLJ 4.7 (a)(3) and (4).
SUGGESTED AMENDMENT TO CRIMINAL RULE CrRLJ 4.7 DISCOVERY
CrRLJ 4.7 DISCOVERY
(a) Prosecuting Authority's Obligations
(1) Except as otherwise provided by protective orders or as to matters not subject to disclosure, the prosecuting authority shall, upon written demand, disclose to the defendant the following material and information within his or her possession or control concerning:
(i) Unchanged.
(ii) Unchanged.
(iii) Unchanged.
(iv) Unchanged.
(v) Unchanged.
(vi) Unchanged.
(vii) Unchanged.
(viii) Unchanged.
(ix) Unchanged.
(x) Unchanged.
(xi) Unchanged.
(xii) All records, including notes, reports and electronic recordings relating to an identification procedure, as well as all identification procedures, whether or not the procedure resulted in an identification or the procedure resulted in the identification of a person other than the suspect.
(2) Unchanged.
(3) Except as is otherwise provided as to protective orders, the prosecuting attorney shall disclose to the defendant's counsel any material or information within the prosecuting authority's knowledge which tends to negate defendant's guilt as to the offense charged., and/or which tends to impeach a State's witness.
(4) The prosecuting authority's obligation under this section is limited to material and information within the actual knowledge, possession, or control of members of his or her staff.includes material and evidence favorable to the defendant and material to the defendant's guilt or punishment, and/or which tends to impeach a State's witness. This includes favorable evidence known to others acting on the State's behalf in the case, including the police. The prosecuting authority's duty under this rule not conditioned on a defense request for such material. Such duty is ongoing, even after plea or sentencing.
(b) Defendant's Obligations. Unchanged.
(c) Physical and Demonstrative Evidence. Unchanged.
(d) Material Held by Others. Unchanged.
(e) Discretionary Disclosures. Unchanged.
(f) Matters Not Subject to Disclosure. Unchanged.
(g) Regulation of Discovery.
(1) Investigation Not to Be Impeded. Unchanged.
(2) Continuing Duty to Disclose. Unchanged.
(3) Custody of Materials. Any materials furnished to a lawyer pursuant to these rules shall remain in the exclusive custody of the lawyer and be used only for the purposes of conducting the party's side of the case, unless otherwise agreed by the parties or ordered by the court, and shall be subject to such other terms and conditions as the parties may agree or the court may provide. Further, a defense lawyer shall be permitted to provide a copy of the materials to the defendant after making appropriatethe following redactions:which are approved by the prosecuting authority or order of the court.
(i) Dates of Birth—redact to the year of birth;
(ii) Names of Minor Children—redact to the initials;
(iii) Social Security Numbers or Federal Taxpayer Identification Numbers—redact in their entirety;
(iv) Financial Accounting Information—redact to the last four digits;
(v) Passport Numbers and Driver License Numbers—redact in their entirety;
(vi) Home Addresses—redact to the City and State; and
(vii) Phone Numbers—redact in their entirety.
Each defense lawyer shall maintain a duplicate copy of discovery furnished to the defendant they are representing, which shows the redactions made in accordance with this court rule for the duration of the case. The duplicate copy of discovery with redactions shall be kept in the client's case file. If the defense lawyer withdraws from representing the defendant, the duplicate copy with redactions shall be furnished to the new lawyer and maintained in the new lawyer's case file for the defendant for the duration of the case. The court may, upon proper showing, request to see the duplicate copy with redactions that has been furnished to the defendant, to make sure the redactions have been properly made.
(4) Protective Orders. Unchanged
(5) Excision. Unchanged
(6) In Camera Proceedings. Unchanged
(7) Sanctions. Unchanged
GR 9 COVER SHEET
Suggested Amendment to Criminal Rule CrRLJ 4.11 Recording Witness Interviews
Date:
February 23, 2018
Proponent:
Washington Association of
Criminal Defense Lawyers
1511 Third Ave., Suite 503
Seattle, WA 98101
Ph. (206) 623-1302
Fax. (206) 623-4257
 
 
 
 
Spokesperson:
Kent Underwood, WACDL Court Rules Committee Co-chair
Purpose:
The purpose of the rule is to improve the reliability of evidence by permitting the recording of pretrial interviews thereby having a more accurate record of the interview.
Public Hearing:
Not requested
Expedited
Consideration:
Not requested
SUGGESTED NEW CRIMINAL RULE CrRLJ 4.11
CrRLJ 4.11 RECORDING WITNESS INTERVIEWS
(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 audio recording device or other means of verbatim audio recording, including a court reporter. Such interviews are subject to the court's regulation of discovery under CrRLJ 4.7(g). Any disputes about an interview 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 witnesses.
(b) Providing Copies. Copies of recordings and transcripts, if made, shall be provided to all other parties in accordance with the requirements of CrRLJ 4.7. If an interview is recorded by a court reporter, and is discoverable under CrRLJ 4.7, any party or the witness may order a transcript thereof at the party's or witness's expense. Dissemination of audio recordings or transcripts of witness interviews obtained under this rule is prohibited except where required to satisfy the discovery obligations of CrRLJ 4.7, pursuant to court order after a showing of good cause relating solely to the criminal case at issue, or as reasonably necessary to conduct a party's case.
(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.
(d) Witness Consent. A witness may refuse to be recorded. In the event that a witness refuses to be recorded, and there is a dispute regarding any statement made by the witness, the jury should be instructed to examine the statement carefully in the light of any reasons for the refusal and other circumstances relevant to that witness's testimony, including, but not limited to, bias and motive.
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.
Reviser's note: The spelling error in the above material occurred in the copy filed by the State Supreme Court and appears in the Register pursuant to the requirements of RCW 34.08.040.