WSR 19-13-018

RULES OF COURT

STATE SUPREME COURT

[June 6, 2019]

The Washington State Bar Association's Court Rules and Procedures Committee, having recommended the adoption of the proposed amendments to CrR 1.3, CrR 4.4, CrRLJ 4.4, and CR 30, and the Court having considered the amendments and comments submitted thereto, and having determined that the proposed amendments will aid in the prompt and orderly administration of justice;

Now, therefore, it is hereby

(a) That the proposed amendments as shown below are adopted.

(b) That the proposed amendments will be published in the Washington Reports and will become effective September 1, 2019.

DATED at Olympia, Washington this 6th day of June, 2019.

Except as otherwise provided elsewhere in these rules, oOn their effective date:

(b) Tthese rules also apply to any proceedings in court then pending or thereafter commenced regardless of when the proceedings were commenced, except to the extent that in the opinion of the court, the former procedure should continue to be made applicable in a particular case in the interest of justice or because of infeasibility of application of the procedures of these rules.

(a) [Unchanged.]

(1) The court, on application of the prosecuting attorney, or on application of the defendant pursuant toother than undersubsection (a), shall grant a severance of offenses whenever before trial or during trial with consent of the defendant, the court determines that severance will promote a fair determination of the defendant's guilt or innocence of each offense.

(1) A defendant's motion for severance on the ground that an out-of-court statement of a codefendant referring to him is inadmissible against him shall be granted unless:

(i) the prosecuting attorney elects not to offer the statement in the case in chief; or

(ii) deletion of all references to the moving defendant will eliminate any prejudice to him from the admission of the statement.

(2) The court, on application of the prosecuting attorney, or on application of the defendant other than under subsection (c)(1)(i), should grant a severance of defendants whenever:

(i) if before trial, it is deemed necessary to protect a defendant's rights to a speedy trial, or it is deemed appropriate to promote a fair determination of the guilt or innocence of a defendant; or

(ii) if during trial upon consent of the severed defendant, it is deemed necessary to achieve a fair determination of the guilt or innocence of a defendant.

(3) When such information would assist the court in ruling on a motion for severance of defendants, the court may order the prosecuting attorney to disclose any statements made by the defendants which he intends to introduce in evidence at the trial.

(4) The assignment of a separate cause number to each defendant of those named on a single charging document is not considered a severance. Should a defendant desire that the case be severed, the defendant must move for severance.

(d) - (e) [Unchanged.]

Comment

[Unchanged.]

(a) [Unchanged.]

(b) Severance of Offenses. The court, on application of the prosecuting authority, or on application of the defendant pursuant toother than under subsection (a), shall grant a severance of offenses whenever before trial or during trial with consent of the defendant, the court determines that severance will promote a fair determination of the defendant's guilt or innocence of each offense.

(1) [Unchanged.]

(2) The court, on application of the prosecuting authority, or on the application of the defendant other than under subsection (c)(1)(i), should grant a severance of defendants whenever:

(i) - (ii) [Unchanged.]

(3) [Unchanged.]

(1) - (7) [Unchanged.]

(8) VideotapingVideo Recording of Depositions.

(A) Any party may videotape videorecord the deposition of any party or witness without leave of court provided that written notice is served on all parties not less than 20 days before the deposition date, and specifically states that the deposition will be recorded on videotapevideo recorded. Failure to so state shall preclude the use of videotapevideo recording equipment at the deposition, absent agreement of the parties or court order.

(B) No party may videotapevideo record a deposition within 120 days of the later of the date of filing or service of the lawsuit, absent agreement of the parties or court order.

(C) On motion of a party made prior to the deposition, the court shall order that a videotapevideo recorded deposition be postponed or begun subject to being continued, on such terms as are just, if the court finds that the deposition is to be taken before the moving party has had an adequate opportunity to prepare, by discovery deposition of the deponent or other means, for cross examination of the deponent.

(D) Unless otherwise stipulated to by the parties, the expense of videotapingvideo recording shall be borne by the noting party and shall not be taxed as costs. Any party, at that party's expense, may obtain a copy of the videotapevideo recording.

(E) A stenographic record of the deposition shall be made simultaneously with the videotapevideo recording at the expense of the noting party.

(F) The area to be used for videotapingvideo recording testimony shall be suitable in size, have adequate lighting and be reasonably quiet. The physical arrangements shall be fair to all parties. The deposition shall begin by a statement on the record of: (i) the operator's name, address and telephone number, (ii) the name and address of the operator's employer, (iii) the date, time, and place of the deposition, (iv) the caption of the case, (v) the name of the deponent, and (vi) the name of the party giving notice of the deposition. The officer before whom the deposition is taken shall be identified and swear the deponent on camera. At the conclusion of the deposition, it shall be stated on the record that the deposition is concluded. When more than one tapestorage device is used,to record the video recording, the operator shall announce on camera the end of each tapeseparate storage device on which the video recording is preserved, such as each tape or disk (if any) and the beginning of the next tapeone.

(G) Absent agreement of the parties or court order, if all or any part of the videotapevideo recording will be offered at trial, the party offering it must order the stenographic record to be fully transcribed at that party's expense. A party intending to offer a videotapedvideo recording of a deposition in evidence shall notify all parties in writing of that intent and the parts of the deposition to be offered within sufficient time for a stenographic transcript to be prepared, and for objections to be made and ruled on before the trial or hearing. Objections to all or part of the deposition shall be made in writing within sufficient time to allow for rulings on them and for editing of the tapevideo recording. The court shall permit further designations of testimony and objections as fairness may require. In excluding objectionable testimony or comments or objections of counsel, the court may order that an edited copy of the videotapevideo recording be made, or that the person playing the taperecording at trial suppress the objectionable portions of the taperecording. In no event, however, shall the original videotapevideo recording be affected by any editing process.

(H) After the deposition has been taken, the operator of the videotapevideo recording equipment shall attach tosubmit with the videotapevideo recording a certificate that the recording is a correct and complete record of the testimony by the deponent. If the video recording is stored exclusively on a computer or service (including cloud storage) and not on an easily removable and portable storage device, the certificate shall so state and indicate measures taken to preserve it. Unless otherwise agreed by the parties on the record, the operator shall retain custody or control of the original videotapevideo recording. The custodian shall store it under conditions that will protect it against loss,or destruction, or tampering, and shall preserve as far as practicable the quality of the taperecording and the technical integrity of the testimony and images it contains. The custodian of the original videotapevideo recording shall retain custody of it until 6 months after final disposition of the action, unless the court, on motion of any party and for good cause shown, orders that the taperecording be preserved for a longer period.

(I) The use of videotapevideo recorded depositions shall be subject to rule 32.