BILL REQ. #:  S-0052.2 

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

     AN ACT Relating to disclosure and regulation of criminal informant evidence and testimony; 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 evidence and testimony from criminal informants who have reason to seek leniency and other benefits from the criminal justice system are inherently suspect because a system in which criminal informants are rewarded by the state produces dangerous incentives to manufacture or fabricate evidence.
     This act is intended to address the unreliability of informant evidence and testimony by providing a method to assess informant evidence and testimony and to corroborate its substance.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Electronic recording" or "electronically recorded" means an audio and visual recording that is an authentic, accurate, unaltered record of an informant statement.
     (2) "Informant" means any criminal suspect, whether or not they are detained or incarcerated, who provides information in exchange for a deal, promise, inducement, or benefit, or expectation thereof. This definition does not include victims of the crime being prosecuted or experts.
     (3) "Statement" means an oral, written, sign language, or nonverbal communication.

NEW SECTION.  Sec. 3   (1) All statements made by an informant relating to a crime by an adult or juvenile shall be electronically recorded.
     (2) If an audio and visual recording is not practicable, an audio recording is an acceptable alternative to audio and visual recording.
     (3) Every electronic recording of a statement by an informant shall be clearly identified and catalogued by law enforcement personnel.
     (4) Every electronic recording shall be preserved by law enforcement personnel until all appeals, postconviction, and habeas corpus proceedings connected to that testimony are final and concluded, or the time within which such proceedings must be brought has expired.
     (5) Upon motion by the defendant, the court may order that a copy of the recording be preserved for any period beyond the expiration of all appeals.

NEW SECTION.  Sec. 4   (1) In any case relating to a crime by an adult or juvenile, the prosecution must disclose in a timely manner its intent to rely on evidence provided by an informant or to introduce the testimony of an informant.
     (2) The prosecution shall also in a timely manner, prior to trial or the entry of a guilty plea, disclose in discovery the following factors:
     (a) The complete criminal history of the informant;
     (b) Any deals, promises, inducements, or benefits that the offering party has made or will make in the future to the informant;
     (c) The substance of the statements made by the accused to the informant;
     (d) The time and place of the statements given by the accused to the informant, the time and place of the disclosure of the informant statement to law enforcement officials, and the names of all persons present when the statements by the accused and the informant were made;
     (e) Whether at any time the informant modified or recanted that testimony or statement and, if so, the time and place of the modification or recantation, the nature of the modification or recantation, and the names of the persons who were present at the modification or recantation;
     (f) Other cases in which the informant testified, provided that the existence of such testimony can be ascertained through reasonable inquiry and whether the informant received any promise, inducement, or benefit in exchange for or subsequent to that testimony or statement;
     (g) If known, the relationship between the accused and the informant, including the amount of time they were incarcerated in the same custodial section of the jail or prison; and
     (h) Any other information relevant to the informant's credibility.

NEW SECTION.  Sec. 5   (1) Before a trial or any other proceeding in which the state intends to introduce the testimony of an informant, the court shall hold a pretrial hearing to assess the reliability and to determine whether the state can corroborate the content of informant testimony relating to a crime by an adult or juvenile unless the defendant waives such a hearing.
     (2) On the issue of reliability, the court shall consider all of the factors enumerated in section 4(2) of this act. If the prosecution fails to show by a preponderance of the evidence that the informant's testimony is reliable, the court shall render the testimony inadmissible.
     (3) On the issue of corroboration, the court must determine whether the informant's testimony is corroborated by other evidence tending to connect the defendant with the crime committed. Corroboration is not sufficient if the corroboration only shows the commission of the offense. Corroboration shall not be provided by evidence or testimony from another informant. If the prosecution fails to show corroboration by a preponderance of the evidence, the court shall render the testimony inadmissible.

NEW SECTION.  Sec. 6   If, after conviction, a defendant makes a substantial showing that an informant witness provided false information that might have affected the outcome of the trial, the court shall hold a reliability hearing as provided in section 5 of this act. If the court concludes by clear and convincing evidence that the informant witness provided false evidence, the court shall order a new trial.

NEW SECTION.  Sec. 7   Sections 1 through 6 of this act constitute a new chapter in Title 10 RCW.