WSR 05-01-041

RULES OF COURT

STATE SUPREME COURT


[ December 6, 2004 ]

IN THE MATTER OF THE ADOPTION OF NEW CrR 4.11, NEW CrRLJ 4.11, AND AMENDMENTS TO CrR 4.6 AND CrRLJ 4.6 )

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 ORDER

NO. 25700-A-804

     The Washington State Bar Association having recommended the adoption of proposed New CrR 4.11, New CrRLJ 4.11 and amendments to CrR 4.6 and CrRLJ 4.6, and the Court having approved the proposed new rules and amendments for publication;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provisions of GR 9(g), the proposed new rules and amendments as attached hereto 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 2005.

     (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 29, 2005. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Lisa.Bausch@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

     DATED at Olympia, Washington this 2nd day of December 2004.
For the Court
     Gerry L. Alexander
CHIEF JUSTICE


GR 9 Cover Sheet


Proposal to Adopt a New Criminal Rule 4.11

Concerning Recording of Witness Interviews


Submitted by the Board of Governors of the Washington State Bar Association



     Purpose: The proposed new rule clarifies that counsel in criminal cases, or their designees, may record witness interviews "by openly using an audiotape or other means of verbatim recording, including a court reporter." Recording will facilitate trial preparation in criminal cases where, under most circumstances, depositions either are not allowed or are not a financially viable option. In addition, a recording or transcript provides a more accurate record of witness statements for use at trial if the witness's testimony differs from the prior recorded statement. This should ameliorate problems encountered in proving a prior inconsistent statement by calling an investigator or other person who took notes and in cross examination regarding the integrity of the note taker and/or the accuracy of the notes.

     The Board of Governors previously considered several earlier versions of this rule.

     In 2003, an earlier version of the rule was remanded to the WSBA Court Rules and Procedures Committee to address concerns expressed regarding youth and victims of crime. The Committee concluded that a separate rule or exclusion should not be crafted to address particular crimes or categories of victims. Rather, the Committee drafted additional language regarding notice of the intent to record interviews of complaining witnesses and alleged victims and a provision proscribing dissemination of the tapes and transcripts of such statements. The proposed rule also provides that a witness is entitled to a copy of the recording or a transcript, if made.

     At the request of the Board of Governors, the Committee also drafted subsection (b) to ensure that witnesses know on whose behalf the interview is conducted and of their right to obtain a copy of the recording and transcript, if made.

     A previous version of this rule was rejected because it provided that a witness could not object to the recording of the interview, and that recordings made consistent with the rule would "not be a violation of RCW 9.73.030." The Committee considered the statute at length and concluded that the recording of a witness statement as provided in this rule is not a "private conversation" under the statute. The word "openly" was inserted specifically to provide that surreptitious recording of an interview was not permissible. If the witness does not wish to give a recorded statement, the interviewer has the choice to continue without a verbatim recording or to seek a deposition under CrR 4.6. (See the companion suggested amendment to that rule.)


CrR 4.11 INTERVIEWS OF WITNESSES

[proposed new rule]



     (a) Recording of Witness Interviews. Counsel for any party, or counsel's designee, may conduct witness interviews by openly using an audiotape or other means of verbatim recording, including a court reporter. Complaining witnesses, alleged victims, and opposing counsel shall receive 5 days' notice of the intent to record interviews of complaining witnesses and/or alleged victims. The notice shall state the method of recording. Copies of the tapes and transcripts of interviews of complaining witnesses and alleged victims shall not be disseminated by any party except as reasonably necessary to conduct the party's case. If requested, counsel shall promptly provide all other parties and the witness with a copy of the recording and transcript, if made. If the interview is recorded by a court reporter, any party or the witness may order a transcript thereof at the expense of the party or witness who orders the transcript. This rule shall not affect any other legal rights of the witness.

     (b) 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.


GR 9 Cover Sheet


Proposal to Adopt a New Criminal Rule for Courts of Limited Jurisdiction 4.11 Concerning Recording of Witness Interviews


Submitted by the Board of Governors of the Washington State Bar Association



     (C) Purpose: The new rule is proposed for the same reasons as stated in the purpose statement for proposed new CrR 4.11.



CrRLJ 4.11 INTERVIEWS OF WITNESSES

[proposed new rule]



     (a) Recording of Witness Interviews. Counsel for any party, or counsel's designee, may conduct witness interviews by openly using an audiotape or other means of verbatim recording, including a court reporter. Complaining witnesses, alleged victims, and opposing counsel shall receive 5 days' notice of the intent to record interviews of complaining witnesses and/or alleged victims. The notice shall state the method of recording. Copies of the tapes and transcripts of interviews of complaining witnesses and alleged victims shall not be disseminated by any party except as reasonably necessary to conduct the party's case. If requested, counsel shall promptly provide all other parties and the witness with a copy of the recording and transcript, if made. If the interview is recorded by a court reporter, any party or the witness may order a transcript thereof at the expense of the party or witness who orders the transcript. This rule shall not affect any other legal rights of the witness.

     (b) 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.


GR 9 Cover Sheet


Proposal to Amend Criminal Rule 4.6

Concerning Depositions


Submitted by the Board of Governors of the Washington State Bar Association




     Purpose: The amendment to section (a) is a companion to proposed new CrR 4.11. It would allow a party to request that the court order a deposition when a witness "does not agree to allow his or her interview by, or statement to, either counsel to be recorded by audiotape or other means of verbatim recording." Currently, the party must show that the witness "refuses to discuss the case with either counsel." Ordering a deposition is discretionary with the court, as the rule uses the language "may upon motion of a party..."

     Even if the witness fails to agree to allow recording, the party seeking the deposition must still show that "such testimony is material and that it is necessary to take the witness's deposition in order to prevent a failure of justice."


CrR 4.6 DEPOSITIONS

[companion to proposed new CrR 4.11]



     (a) When Taken. Upon a showing that a prospective witness may be unable to attend or prevented from attending a trial or hearing or if a witness refuses to discuss the case with either counsel or does not agree to allow his or her interview by, or statement to, either counsel to be recorded by audiotape or other means of verbatim recording, including a court reporter, and that his such testimony is material and that it is necessary to take his the witness's deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment or information may upon motion of a party and notice to the parties order that his the witness's testimony be taken by deposition and that any designated books, papers, documents or tangible objects, not privileged, be produced a the same time and place.

     (b) - (e) Unchanged.


GR 9 Cover Sheet


Proposal to Amend Criminal Rule for Courts of Limited Jurisdiction 4.6

Concerning Depositions


Submitted by the Board of Governors of the Washington State Bar Association



     Purpose: The amendment to section (a) is a companion to proposed new CrRLJ 4.11. It is proposed for the same reasons as stated in the purpose statement for the proposed amendment to CrR 4.6(a).


ATTACHMENT 5

CrRLJ 4.6 DEPOSITIONS

[companion to proposed new CrRLJ 4.11]



     (a) When Taken. Upon a showing that a prospective witness may be unable to attend or prevented from attending a trial or hearing or if a witness refuses to discuss the case with either lawyer or does not agree to allow his or her interview by, or statement to, either lawyer to be recorded by audiotape or other means of verbatim recording, including a court reporter, and that his or her such testimony is material and that it is necessary to take his or her the witness's deposition in order to prevent a failure of justice, the court at any time after the filing of a complaint or citation and notice may upon motion of a party and notice to the parties order that his or her the witness's testimony be taken by deposition and that any designated books, papers, documents or tangible objects, not privileged, be produced a the same time and place.

     (b) - (e) Unchanged.

     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.

     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.

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