BILL REQ. #:  H-4706.1 

Read first time 02/01/2006.   Referred to Committee on Judiciary.

     AN ACT Relating to records in criminal investigations; and adding a new chapter to Title 10 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature finds that many businesses, associations, and organizations providing goods and services to the public or conducting other activity in Washington, or otherwise affecting residents of Washington now operate nationally or globally and often maintain their business records in a location outside the state of Washington. The legislature further finds that bringing persons or organizations committing crimes in Washington to justice is a matter of great public interest because these crimes have a significant effect on businesses, associations, and other organizations that conduct business in Washington, as well as on Washington citizens, and result in significant losses to persons, businesses, associations, and other organizations victimized by those crimes, as well as persons not directly victimized when businesses or others more directly affected by these crimes must raise prices to cover crime losses. The ability of law enforcement and the criminal justice system to effectively perform their duties to the public often depends upon law enforcement, prosecutors, and criminal defense attorneys being able to obtain and use records relevant to crimes that affect Washington's citizens, businesses, associations, organizations, and others who provide goods or services, or conduct other activity in Washington. In the course of fulfilling their duties to the public, law enforcement, prosecutors and criminal defense attorneys must frequently obtain records from these entities, and be able to use the records in court. The ability to obtain and use these records has an impact on Washington citizens because it affects the ability to enforce Washington's criminal laws and affects the deterrence value arising from criminal prosecution. Effectively combating crime requires laws facilitating and requiring that all those who possess records relevant to a criminal investigation comply with the legal process issued in connection with criminal investigations or litigation.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Adverse result" includes one of the following possible consequences:
     (a) Danger to the life or physical safety of an individual;
     (b) A flight from prosecution;
     (c) The destruction of, potential loss of, or tampering with evidence;
     (d) The intimidation of potential witnesses;
     (e) Jeopardizing an investigation or undue delay of a trial.
     (2) "Applicant" means a law enforcement officer, prosecuting attorney, deputy or special deputy prosecuting attorney, or defense attorney who is seeking criminal process under section 3 of this act.
     (3) "Criminal process" means a search warrant or legal process issued pursuant to RCW 10.79.015; any process issued pursuant to chapter 10.27, 10.29, or 9.73 RCW; and any other legal process signed by a judge of the superior court and issued in a criminal matter where the warrant or legal process allows for search of or commands production of records that are in the actual or constructive possession of the recipient, regardless of whether the recipient or the records are physically located within the state.
     (4) "Defense attorney" means an attorney of record for a person charged with a crime when the attorney is seeking the issuance of criminal process for the defense of the criminal case.
     (5) "Properly served" means delivery by hand or in a manner reasonably allowing for proof of delivery if delivered by United States mail, overnight delivery service, or facsimile to the recipient addressee of criminal process.
     (6) "Recipient" means a person as defined in RCW 9A.04.110, or a business as defined in RCW 5.45.010, upon whom criminal process issued under this section is properly served.

NEW SECTION.  Sec. 3   The following apply to any criminal process allowing for search of or commanding production of records that are in the actual or constructive possession of the recipient, regardless of whether the recipient or the records are physically located within the state:
     (1) When properly served with criminal process, the recipient shall provide the applicant all records sought pursuant to the criminal process within twenty business days of receipt, including those records maintained or located outside this state. An applicant may consent to a recipient's request for additional time to comply with the criminal process.
     (2) Criminal process issued under this chapter must contain the following language in bold type on the first page of the document: "This [warrant, subpoena, order] is issued pursuant to RCW [insert citation to this statute]. A response is due within twenty business days of receipt, unless a shorter time is stated herein, or the applicant consents to a recipient's request for additional time to comply."
     (3) If the judge finds that failure to produce records within twenty business days would cause an adverse result, the criminal process may require production of records within less than twenty business days of receipt. A court may reasonably extend the time required for production of the records upon finding that the recipient has shown good cause for that extension and that an extension of time would not cause an adverse result.
     (4) When properly served with criminal process, a recipient who seeks to quash the criminal process must seek relief from the court where the criminal process was issued, within the time originally required for production of records. The court shall hear and decide the motion no later than five court days after the motion is filed. An applicant's consent, under subsection (1) of this section, to a recipient's request for additional time to comply with the criminal process does not extend the date by which a recipient must seek the relief designated in this section.
     (5) Upon written request from the applicant, or if ordered by the court, the recipient of criminal process shall verify the authenticity of records that it produces by providing an affidavit, declaration, or certification that complies with subsection (6) of this section. Records produced in compliance with this section are admissible in evidence as set forth in subsections (6) through (9) of this section.
     (6) Unless, in the opinion of the court, the source of information or the method and time of preparation do not justify admission, a record provided by a recipient of criminal process under this section shall not be excluded as hearsay evidence if accompanied by an affidavit, declaration, or certification that attests to the following:
     (a) The record was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
     (b) The record was kept in the course of a regularly conducted business activity;
     (c) The affidavit, declaration, or certification was prepared by and signed by the record custodian or other qualified witness who states the identity of the record and sets forth the mode of its preparation; and
     (d) If the record is not the original, it is a duplicate of the original.
     (7) An affidavit or certification completed in compliance with subsection (6) of this section shall authenticate the record or duplicate.
     (8) No evidence in the records in the form of opinion or diagnosis is admissible under subsection (6) or (7) of this section, unless such opinion or diagnosis would otherwise be admissible.
     (9) As soon after the arraignment as practicable, but no later than the omnibus hearing, a party intending to offer in evidence under this section a record of regularly conducted business activity shall provide written notice of that intention to each other party. A motion opposing admission in evidence of the record shall be made by the opposing party and determined by the court before trial. Failure by a party to timely file such motion shall constitute a waiver of objection to the record or duplicate, but the court for cause shown may grant relief from the waiver.
     (10) A Washington recipient, when served with a warrant or other qualifying legal process that was issued by or in another state and that, if it were issued in Washington, would be criminal process, shall produce those records as if that warrant or other qualifying legal process had been issued by a Washington court.
     (11) No cause of action shall lie against any foreign or Washington recipient of criminal process or a search warrant or other qualifying legal process as provided in subsection (10) of this section, its officers, employees, agents, or other persons specified in the warrant or process for providing records, information, facilities, or assistance in accordance with the terms of the warrant or process.
     (12) A judge of the superior court may issue any criminal process to any recipient at any address, within or without the state, for any matter over which the court has criminal jurisdiction pursuant to RCW 9A.04.030. This provision does not limit a court's authority to issue warrants or legal process under other provisions of state law.

NEW SECTION.  Sec. 4   Sections 1 through 3 of this act constitute a new chapter in Title 10 RCW.