WSR 18-24-064
RULES OF COURT
STATE SUPREME COURT
[November 28, 2018]
IN THE MATTER OF SUGGESTED AMENDMENTS TO CrR 3.1—RIGHT TO AND ASSIGNMENT OF LAWYER; CrRLJ 3.1—RIGHT TO AND ASSIGNMENT OF LAWYER, JuCR 9.3(A)—RIGHT TO APPOINTMENT OF EXPERTS IN JUVENILE OFFENSE PROCEEDINGS, AND GR 15—DESTRUCTION, SEALING, AND REDACTION OF COURT RECORDS
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ORDER
NO. 25700-A-1253
The Washington Defender Association, having recommended the suggested amendments to CrR 3.1—Right to and Assignment of Lawyer; CrRLJ 3.1—Right to and Assignment of Lawyer, JuCR 9.3(a)—Right to Appointment of Experts in Juvenile Offense Proceedings, and GR 15—Destruction, Sealing, and Redaction of Court Records, and the Court having approved the suggested amendments for publication;
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 28th day of November, 2018.
 
For the Court
 
 
 
Fairhurst, C.J.
 
CHIEF JUSTICE
GR 9 Cover Sheet
Suggested Changes to CrR 3.1, CrRLJ 3.1, JuCR 9.3 and GR 15
(A) Name of Proponent: Washington Defender Association
(B) Spokesperson: Magda Baker, Misdemeanor Resource Attorney, Washington Defender Association
(C) Purpose: The Washington Defender Association (WDA) suggests changes to CrR 3.1(f), CrRLJ 3.1(f) and JuCR 9.3(a) that would ensure that criminal defense attorneys who request funds for experts on behalf of indigent clients in superior courts, courts of limited jurisdiction and juvenile courts do so ex parte and would require that those courts seal such requests. WDA also suggests a change to GR 15 (c)(1) that would allow defenders representing clients in juvenile court to move to seal motions for expert funding without giving notice to opposing parties and crime victims, as defenders in superior courts and courts of limited jurisdiction may currently do.
Such changes would allow defense attorneys to pursue necessary experts without sharing their developing trial strategies with opposing counsel. This in turn would protect the rights of criminal defendants to both necessary expert assistance and fair trials. The Sixth Amendment right to effective assistance of counsel "includes expert assistance necessary to an adequate defense." State v. Punsalan, 156 Wn.2d 875, 878 (2006) (citing Ake v. Oklahoma, 470 U.S. 68, 76, 83 (1985)). For counsel to effectively represent a client in a fair trial, "it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel." Hickman v. Taylor, 329 U.S. 495, 510 (1947). The Washington Supreme Court has recognized that "[t]he public's right of access [to court records and other information] may be limited to protect other significant and fundamental rights, such as a defendant's right to a fair trial." State v. McEnroe, 174 Wn.2d 795, 801 (2012) (citing Dreiling v. Jain, 151 Wn.2d 900, 909 (2004)). These related rule changes would make it possible for indigent defendants to simultaneously have the assistance of experts when necessary and to confidentially develop trial strategies, as is necessary to fair trials.  
(D) Hearing: None recommended.
(E) Expedited Consideration: Expedited consideration is not requested.
[Suggested changes to CrR 3.1(f)]
CrR 3.1 RIGHT TO AND ASSIGNMENT OF LAWYER
(a) – (e) [No changes]
(f) Services Other Than Lawyer.
(1) A lawyer for a defendant who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense in the case may request them by a motion to the court.
(2) Upon finding that the services are necessary and that the defendant is financially unable to obtain them, the court, or a person or agency to whom the administration of the program may have been delegated by local court rule, shall authorize the services. The motion mayshall be made ex parte, and, upon a showing of good cause, the moving papers mayshall be ordered sealed by the court, and shall remain sealed until further order of the court. The court, in the interest of justice and on a finding that timely procurement of necessary services could not await prior authorization, shall ratify such services after they have been obtained.
(3) Reasonable compensation for the services shall be determined and payment directed to the organization or person who rendered them upon the filing of a claim for compensation supported by affidavit specifying the time expended and the services and expenses incurred on behalf of the defendant, and the compensation received in the same case or for the same services from any other source.
[Suggested changes to CrRLJ 3.1(f)]
CrRLJ 3.1 RIGHT TO AND ASSIGNMENT OF LAWYER
(a) – (e) [No changes]
(f) Services Other Than Lawyer.
(1) A lawyer for a defendant who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense in the case may request them by a motion to the court.
(2) Upon finding that the services are necessary and that the defendant is financially unable to obtain them, the court, or a person or agency to whom the administration of the program may have been delegated by local court rule, shall authorize the services. The motion mayshall be made ex parte, and, upon a showing of good cause, the moving papers mayshall be ordered sealed by the court, and shall remain sealed until further order of the court. The court, in the interest of justice and on a finding that timely procurement of necessary services could not await prior authorization, shall ratify such services after they have been obtained.
(3) Reasonable compensation for the services shall be determined and payment directed to the organization or person who rendered them upon the filing of a claim for compensation supported by affidavit specifying the time expended and the services and expenses incurred on behalf of the defendant, and the compensation received in the same case or for the same services from any other source.
[Suggested changes to JuCR 9.3(a)]
JuCR 9.3 RIGHT TO APPOINTMENT OF EXPERTS IN JUVENILE OFFENSE PROCEEDINGS AND ASSIGNMENT OF LAWYER
(a) Appointment. A juvenile who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense may request that these services be provided at public expense by a motion. The motion shall be made ex parte and, upon a showing of good cause, the moving papers shall be ordered sealed by the court and shall remain sealed until further order of the court. Upon finding that the services are necessary and that the juvenile is financially unable to obtain them without substantial hardship to himself or herself or the juvenile's family, the court shall authorize counsel to obtain the services on the behalf of the juvenile. The ability to pay part of the cost of the services shall not preclude the provision of those services by the court. A juvenile shall not be deprived of necessary services because a parent, guardian, or custodian refuses to pay for those services. The court, in the interest of justice and on a finding that timely procurement of necessary services could not await prior authorization, may ratify services after they have been obtained.
(b) [No changes]
[Suggested changes to GR 15 (c)(1)]
GR 15 DESTRUCTION, SEALING, AND REDACTION OF COURT RECORDS
(a) - (b) [No changes]
(c) Sealing or Redacting Court Records.
(1) In a civil case, the court or any party may request a hearing to seal or redact the court records. In a criminal case or juvenile proceedings, the court, any party, or any interested person may request a hearing to seal or redact the court records. Reasonable notice of a hearing to seal must be given to all parties in the case. In a criminal case, reasonable notice of a hearing to seal or redact must also be given to the victim, if ascertainable, and the person or agency having probationary, custodial, community placement, or community supervision over the affected adult or juvenile. No such notice is required for motions to seal documents entered pursuant to CrR 3.1(f), JuCR 9.3(a), or CrRLJ 3.1(f).
(2) - (6) [No changes]
(d) - (j) [No changes]
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.