BILL REQ. #:  H-0197.3 

Prefiled 12/06/10. Read first time 01/10/11.   Referred to Committee on Judiciary.

     AN ACT Relating to pro se defendants in criminal cases questioning victims of sex offenses; adding a new section to chapter 9A.44 RCW; and creating a new section.

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

NEW SECTION.  Sec. 1   (1) Sexual abuse is one of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim. A defendant generally has the right, under the Sixth Amendment, to demand the physical presence, at trial, of accusatory witnesses. Courts have held that this right is not absolute and that in some cases, the defendant's right may be outweighed where necessary to further an important public policy and only where the reliability of the testimony is otherwise assured. Courts have held that a state's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court.
     (2) A defendant also has a right to represent himself or herself in criminal proceedings. The right to appear pro se exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may be the accused's best possible defense. Courts have held that the right to self-representation is not infringed when the defendant has a fair chance to present his or her case in the defendant's own way and to make his or her voice heard. The right to self-representation is also not an absolute right and courts have required the assistance of standby counsel in some situations. In addition, courts are entitled to control the mode of witness interrogation so as to more effectively ascertain the truth and to protect the witness from harassment or undue embarrassment to the extent the defendant's rights are not violated.
     (3) The legislature declares that the state has a compelling interest in the physical and psychological well-being of victims of sex offenses.

NEW SECTION.  Sec. 2   A new section is added to chapter 9A.44 RCW to read as follows:
     (1) The legislature respectfully requests the supreme court to adopt rules by July 1, 2011, that reduce the risk of trauma to victim-witnesses in criminal proceedings involving sex offenses when the defendant is acting pro se.
     (2) At a minimum the rules should:
     (a) Provide that when a defendant has waived his or her right to counsel and is representing himself or herself in a criminal trial, the court, on a motion by the prosecuting attorney, may restrict the defendant from directly questioning a victim and instead require that the defendant question the victim through a court-appointed attorney;
     (b) Apply when:
     (i) The proceeding is a criminal prosecution for a sex offense, as defined in this chapter, allegedly committed by the defendant or committed at the direction of the defendant against the victim;
     (ii) The victim's testimony will describe an act or attempted act of sexual contact or sexual intercourse performed with or on the victim by the defendant or performed with or on the victim by another person at the defendant's direction; and
     (iii) The court finds by substantial evidence, in a hearing conducted outside the presence of the jury, that requiring the victim to be questioned directly by the defendant will cause the victim to suffer serious emotional or mental distress that will prevent the victim from reasonably communicating at the trial;
     (c) Require the court to enter its findings in writing;
     (d) Require the court to allow the defendant to prepare the questions to be asked and prepare any follow-up questions, and provide that, subject to court procedures and rules of evidence, the court-appointed attorney will ask the victim witness the questions as prepared by the defendant;
     (e) Require the court to allow the defendant to communicate with the court-appointed attorney during the questioning of the victim and allow for follow up questions to be provided by the defendant to the court-appointed attorney;
     (f) Provide that if a court-appointed attorney is used for the purpose of questioning the victim, the defendant is still considered acting pro se during that portion of the proceeding for the purposes of applying RCW 9A.44.150;
     (g) Require that if a court-appointed attorney is used for the purpose of questioning the victim, the court must explain to the jury that the defendant is continuing to represent himself or herself and that the defendant composed the questions asked by the court-appointed attorney;
     (h) Provide that if the court does not appoint an attorney for the purposes of questioning a victim witness, the court may impose reasonable procedures upon the parties for conducting the questioning to avoid trauma to the victim. Reasonable procedures may include, but are not limited to:
     (i) Prohibiting the defendant from approaching the victim during the defendant's questioning or ordering that the defendant remain seated the entire time the defendant is questioning the victim; and
     (ii) Permitting questioning by the defendant of the victim using remote audio-video means.
     (3) Nothing in this section limits the authority of the court to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence in any proceeding and to maintain order in the court room.

NEW SECTION.  Sec. 3   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.