AN ACT Relating to
increasing the involvement of victims in the prosecution of criminal cases;
amending RCW 9.94A.080 and 9.94A.090; and reenacting and amending RCW
9.94A.440.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF
WASHINGTON:
Sec. 1. RCW 9.94A.080 and 1981 c
137 s 8 are each amended to read as follows:
The prosecutor and the
attorney for the defendant, or the defendant when acting pro se, may engage in
discussions with a view toward reaching an agreement that, upon the entering of
a plea to a charged offense or to a lesser or related offense, the prosecutor
will do any of the following:
(1) Move for dismissal
of other charges or counts;
(2) Recommend a
particular sentence within the sentence range applicable to the offense or
offenses to which the offender pled guilty;
(3) Recommend a
particular sentence outside of the sentence range;
(4) Agree to file a
particular charge or count;
(5) Agree not to file
other charges or counts; or
(6) Make any other
promise to the defendant, except that in no instance may the prosecutor agree
not to allege prior convictions.
In a case involving
a crime against persons as defined in RCW 9.94A.440, the prosecutor shall make
reasonable efforts to inform the victim of the violent offense of the nature of
and reasons for the plea agreement, including all offenses the prosecutor has
agreed not to file, and ascertain any objections or comments the victim has to
the plea agreement.
The court shall not
participate in any discussions under this section.
Sec. 2. RCW 9.94A.090 and 1984 c
209 s 4 are each amended to read as follows:
(1) If a plea agreement
has been reached by the prosecutor and the defendant pursuant to RCW 9.94A.080,
they shall at the time of the defendant's plea state to the court, on the
record, the nature of the agreement and the reasons for the agreement. The
prosecutor shall inform the court on the record whether the victim or victims
of all crimes against persons, as defined in RCW 9.94A.440, covered by the plea
agreement have expressed any objections to or comments on the nature of and
reasons for the plea agreement. The court, at the time of the plea, shall
determine if the agreement is consistent with the interests of justice and with
the prosecuting standards. If the court determines it is not consistent with
the interests of justice and with the prosecuting standards, the court shall,
on the record, inform the defendant and the prosecutor that they are not bound
by the agreement and that the defendant may withdraw the defendant's plea of
guilty, if one has been made, and enter a plea of not guilty.
(2) The sentencing
judge is not bound by any recommendations contained in an allowed plea
agreement and the defendant shall be so informed at the time of plea.
Sec. 3. RCW 9.94A.440 and 1992 c
145 s 11 and 1992 c 75 s 5 are each reenacted and amended to read as follows:
(1) Decision not to
prosecute.
STANDARD: A prosecuting
attorney may decline to prosecute, even though technically sufficient evidence
to prosecute exists, in situations where prosecution would serve no public
purpose, would defeat the underlying purpose of the law in question or would
result in decreased respect for the law.
GUIDELINE/COMMENTARY:
Examples
The following are
examples of reasons not to prosecute which could satisfy the standard.
(a) Contrary to
Legislative Intent - It may be proper to decline to charge where the
application of criminal sanctions would be clearly contrary to the intent of
the legislature in enacting the particular statute.
(b) Antiquated Statute
- It may be proper to decline to charge where the statute in question is
antiquated in that:
(i) It has not been
enforced for many years; and
(ii) Most members of
society act as if it were no longer in existence; and
(iii) It serves no
deterrent or protective purpose in today's society; and
(iv) The statute has
not been recently reconsidered by the legislature.
This reason is not to
be construed as the basis for declining cases because the law in question is
unpopular or because it is difficult to enforce.
(c) De Minimus
Violation - It may be proper to decline to charge where the violation of law is
only technical or insubstantial and where no public interest or deterrent
purpose would be served by prosecution.
(d) Confinement on
Other Charges - It may be proper to decline to charge because the accused has
been sentenced on another charge to a lengthy period of confinement; and
(i) Conviction of the
new offense would not merit any additional direct or collateral punishment;
(ii) The new offense is
either a misdemeanor or a felony which is not particularly aggravated; and
(iii) Conviction of the
new offense would not serve any significant deterrent purpose.
(e) Pending Conviction
on Another Charge - It may be proper to decline to charge because the accused
is facing a pending prosecution in the same or another county; and
(i) Conviction of the
new offense would not merit any additional direct or collateral punishment;
(ii) Conviction in the
pending prosecution is imminent;
(iii) The new offense
is either a misdemeanor or a felony which is not particularly aggravated; and
(iv) Conviction of the
new offense would not serve any significant deterrent purpose.
(f) High
Disproportionate Cost of Prosecution - It may be proper to decline to charge
where the cost of locating or transporting, or the burden on, prosecution
witnesses is highly disproportionate to the importance of prosecuting the
offense in question. This reason should be limited to minor cases and should
not be relied upon in serious cases.
(g) Improper Motives of
Complainant - It may be proper to decline charges because the motives of the
complainant are improper and prosecution would serve no public purpose, would
defeat the underlying purpose of the law in question or would result in decreased
respect for the law.
(h) Immunity - It may
be proper to decline to charge where immunity is to be given to an accused in
order to prosecute another where the accused's information or testimony will
reasonably lead to the conviction of others who are responsible for more
serious criminal conduct or who represent a greater danger to the public
interest.
(i) Victim Request - It
may be proper to decline to charge because the victim requests that no criminal
charges be filed and the case involves the following crimes or situations:
(i) Assault cases where
the victim has suffered little or no injury;
(ii) Crimes against
property, not involving violence, where no major loss was suffered;
(iii) Where doing so
would not jeopardize the safety of society.
Care should be taken to
insure that the victim's request is freely made and is not the product of
threats or pressure by the accused.
The presence of these
factors may also justify the decision to dismiss a prosecution which has been
commenced.
Notification
The prosecutor is
encouraged to notify the victim, when practical, and the law enforcement
personnel, of the decision not to prosecute.
(2) Decision to
prosecute.
STANDARD:
Crimes against persons
will be filed if sufficient admissible evidence exists, which, when considered
with the most plausible, reasonably foreseeable defense that could be raised
under the evidence, would justify conviction by a reasonable and objective
fact-finder. With regard to offenses prohibited by RCW 9A.44.040, 9A.44.050, 9A.44.073,
9A.44.076, 9A.44.079, 9A.44.083, 9A.44.086, 9A.44.089, and 9A.64.020 the
prosecutor should avoid prefiling agreements or diversions intended to place
the accused in a program of treatment or counseling, so that treatment, if
determined to be beneficial, can be provided pursuant to RCW 9.94A.120(7).
Crimes against
property/other crimes will be filed if the admissible evidence is of such
convincing force as to make it probable that a reasonable and objective
fact-finder would convict after hearing all the admissible evidence and the
most plausible defense that could be raised.
See table below for the
crimes within these categories.
CATEGORIZATION
OF CRIMES FOR PROSECUTING STANDARDS
CRIMES
AGAINST PERSONS
Aggravated
Murder
1st Degree Murder
2nd Degree Murder
1st Degree Kidnaping
1st Degree Assault
1st Degree Assault of a
Child
1st Degree Rape
1st Degree Robbery
1st Degree Rape of a
Child
1st Degree Arson
2nd Degree Kidnaping
2nd Degree Assault
2nd Degree Assault of a
Child
2nd Degree Rape
2nd Degree Robbery
1st Degree Burglary
1st Degree Manslaughter
2nd Degree Manslaughter
1st Degree Extortion
Indecent Liberties
Incest
2nd Degree Rape of a
Child
Vehicular Homicide
Vehicular Assault
3rd Degree Rape
3rd Degree Rape of a
Child
1st Degree Child
Molestation
2nd Degree Child
Molestation
3rd Degree Child
Molestation
2nd Degree Extortion
1st Degree Promoting
Prostitution
Intimidating a Juror
Communication with a
Minor
Intimidating a Witness
Intimidating a Public
Servant
Bomb Threat (if against
person)
3rd Degree Assault
3rd Degree Assault of a
Child
Unlawful
Imprisonment
Promoting
a Suicide Attempt
Riot (if against
person)
CRIMES
AGAINST PROPERTY/OTHER CRIMES
2nd Degree
Arson
1st Degree Escape
2nd Degree Burglary
1st Degree Theft
1st Degree Perjury
1st Degree Introducing
Contraband
1st Degree Possession
of Stolen Property
Bribery
Bribing a Witness
Bribe received by a
Witness
Bomb Threat (if against
property)
1st Degree Malicious
Mischief
2nd Degree Theft
2nd Degree Escape
2nd Degree Introducing
Contraband
2nd Degree Possession
of Stolen Property
2nd Degree Malicious
Mischief
1st Degree Reckless
Burning
Taking a Motor Vehicle
without Authorization
Forgery
2nd Degree Perjury
2nd Degree Promoting
Prostitution
Tampering with a
Witness
Trading in Public
Office
Trading in Special
Influence
Receiving/Granting
Unlawful Compensation
Bigamy
Eluding a Pursuing
Police Vehicle
Willful
Failure to Return from Furlough
Escape
from Community Custody
Riot (if
against property)
Thefts of Livestock
ALL OTHER
UNCLASSIFIED FELONIES
Selection
of Charges/Degree of Charge
(1) The
prosecutor should file charges which adequately describe the nature of
defendant's conduct. Other offenses may be charged only if they are necessary
to ensure that the charges:
(a) Will
significantly enhance the strength of the state's case at trial; or
(b) Will result in
restitution to all victims.
(2) The
prosecutor should not overcharge to obtain a guilty plea. Overcharging
includes:
(a)
Charging a higher degree;
(b) Charging additional
counts.
This standard is
intended to direct prosecutors to charge those crimes which demonstrate the
nature and seriousness of a defendant's criminal conduct, but to decline to
charge crimes which are not necessary to such an indication. Crimes which do
not merge as a matter of law, but which arise from the same course of conduct,
do not all have to be charged.
GUIDELINES/COMMENTARY:
Police
Investigation
A prosecuting attorney
is dependent upon law enforcement agencies to conduct the necessary factual
investigation which must precede the decision to prosecute. The prosecuting
attorney shall ensure that a thorough factual investigation has been conducted
before a decision to prosecute is made. In ordinary circumstances the
investigation should include the following:
(1) The interviewing of
all material witnesses, together with the obtaining of written statements
whenever possible;
(2) The completion of necessary
laboratory tests; and
(3) The obtaining, in
accordance with constitutional requirements, of the suspect's version of the
events.
If the initial
investigation is incomplete, a prosecuting attorney should insist upon further
investigation before a decision to prosecute is made, and specify what the
investigation needs to include.
Exceptions
In certain situations,
a prosecuting attorney may authorize filing of a criminal complaint before the
investigation is complete if:
(1) Probable cause
exists to believe the suspect is guilty; and
(2) The suspect
presents a danger to the community or is likely to flee if not apprehended; or
(3) The arrest of the
suspect is necessary to complete the investigation of the crime.
In the event that the
exception to the standard is applied, the prosecuting attorney shall obtain a
commitment from the law enforcement agency involved to complete the
investigation in a timely manner. If the subsequent investigation does not
produce sufficient evidence to meet the normal charging standard, the complaint
should be dismissed.
Investigation
Techniques
The prosecutor should
be fully advised of the investigatory techniques that were used in the case
investigation including:
(1) Polygraph testing;
(2) Hypnosis;
(3) Electronic
surveillance;
(4) Use of informants.
Pre-Filing Discussions
with Defendant
Discussions with the
defendant or his/her representative regarding the selection or disposition of
charges may occur prior to the filing of charges, and potential agreements can
be reached.
Pre-Filing
Discussions with Victim(s)
Discussions
with the victim(s) or victims' representatives regarding the selection or
disposition of charges may occur before the filing of charges. The discussions
may be considered by the prosecutor in charging and disposition decisions, and
should be considered before reaching any agreement with the defendant regarding
these decisions.
