BILL REQ. #:  S-0335.5 

Read first time 01/19/11.   Referred to Committee on Judiciary.

     AN ACT Relating to inquests for deaths involving a member of a law enforcement agency; amending RCW 36.24.020; adding a new section to chapter 36.24 RCW; and creating a new section.

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

NEW SECTION.  Sec. 1   It is the intent of the legislature to encourage counties to conduct an inquest into the causes and circumstances of any death within the state of Washington involving a member of any law enforcement agency while in the performance of his or her duties.

NEW SECTION.  Sec. 2   A new section is added to chapter 36.24 RCW to read as follows:
     (1)(a) The county prosecuting attorney shall inform the county executive, or in those counties where an elected county executive does not exist, the county coroner or medical examiner, whenever an investigation into a death involving a member of any law enforcement agency in the county is complete and shall also make a recommendation as to whether an inquest is advised under this section.
     (b) The county executive, coroner, or medical examiner shall determine whether or not an inquest should be conducted.
     (c)(i) When determining whether an inquest shall be conducted, the county executive, coroner, or medical examiner shall consider whether a decision to prosecute has been made; whether the death was the result of a condition existing prior to and/or apart from the police involvement; whether the deceased was in custody at the time of the death; whether the family of the deceased desire an inquest; and any other factor that touches on the connection between the manner of death and the actions of law enforcement.
     (ii) If an inquest is to be held, the county executive, coroner, or medical examiner shall request that the county superior court or the district court conduct the inquest. If the superior court or the district court, as applicable, accepts the responsibility, the inquest shall be conducted in accordance with the procedures provided in subsection (2) of this section.
     (2)(a) An inquest shall be held in a trial courtroom selected by the judge designated to conduct the inquest. The inquest shall be an open public hearing.
     (b) The participating parties shall be:
     (i) The family of the deceased, who may have an attorney present.
     (ii) The person or persons involved in the death, if known, who may have an attorney present.
     (iii) The employing government department or departments who may be represented by its/their statutory attorney or lawfully appointed designee.
     (iv) The prosecuting attorney or designee whose role shall be to assist the court.
     (c)(i) The court shall maintain the traditional judicial role of presiding over the inquest.
     (ii) The court shall determine the scope of the issues to be inquired into at the inquest, after consultation with the participating parties.
     (iii) The court shall determine who shall be called as witnesses, after consultation with the participating parties.
     (d)(i) Discoverable material shall be exchanged among the judge, the prosecuting attorney, the attorney representing the person involved in the death, the attorney representing the family of the deceased, and the attorneys for the participating parties.
     (ii) Discovery materials are to be used solely by the attorneys for participation in the inquest. Discovery materials include the police investigative file of the incident that resulted in the death. They also include the report of the medical examiner, crime laboratory reports, and the names, addresses, and summaries and/or copies of statements of any witnesses obtained by any party.
     (iii) In the event confidential materials in the possession of any person or agency are sought for use in the inquest, the court, upon a prima facie showing of necessity, relevancy, and lack of an alternative source for the materials, shall examine the materials in camera. The legal representative of the person or agency in possession of the materials shall have the right to participate in all proceedings which concern these materials.
     (iv) Following an in camera review, the judge may order discovery of the materials if he or she finds that the interest sought to be protected by the claim of confidentiality is clearly outweighed by the interest of the requesting party in using the materials in the inquest.
     (v) Protective orders may be used to limit discovery, and the court may order the return of all discretionarily ordered discovery.
     (e)(i) The inquest shall commence within ninety days after designation of the inquest judge. The commencement date should not be extended unless the inquest judge finds good cause warranting extension.
     (ii) One or more mandatory preinquest conferences shall be held at which all the participating parties shall be represented. The participating parties shall submit proposed voir dire questions, jury instructions and interrogatories, witness lists, and proposed narrative statements of background facts, and advise the judge of any other matters relating to the timely and efficient scheduling and administration of the inquest.
     (iii) The judge shall prepare a preinquest order that schedules the date and length of the inquest, and decides any voir dire issues, the narrative statement of background facts, if the judge elects to make a statement under (i)(ii) of this subsection, jury instructions and interrogatories, which may be revised during the course of the inquest as appropriate, the scope of the inquest, and any other matters relating to the timely and efficient scheduling and administration of the inquest.
     (f)(i) Inquest jurors shall be selected from the regular superior court juror pool.
     (ii) Voir dire shall be by the judge with questions submitted by the participating attorneys. There shall be no set limit to the number of jurors who may be excused by the judge.
     (iii) Inquest jurors shall be allowed to submit questions in writing to the judge, who shall review such questions in camera with the participating parties. The judge shall determine whether or not the questions will be submitted to the witness and the manner of submission.
     (g) The inquest proceedings shall be recorded, either electronically or by a court reporter.
     (h) Electronic media participation, television cameras, and tape recorders shall be permitted only in accordance with code of judicial conduct 3. The Washington bench-bar-press principles and guidelines shall apply to inquests to the extent applicable.
     (i)(i) There shall be no opening statements or closing arguments by counsel. The judge's introduction shall include an instruction in substantially the following form:
     "You have been empaneled as members of a coroner's jury in this inquest. This is not a trial. The purpose of the inquest is to provide a public inquiry into the causes and circumstances surrounding the death of [decedent]. It is not the purpose of this inquest to determine the criminal or civil liability of any person or agency. Your role will be to hear the evidence and answer questions according to instructions given to you at the close of the proceedings.
     The prosecuting attorney's role is solely to assist the court in presenting the evidence. This court has determined who will be called as witnesses and the issues which you will be asked to consider."
     (ii) To focus the proceeding on the issues to be inquired into at the inquest, the judge's introduction may also include a narrative statement of background facts.
     (j) The rules of evidence, as amended, shall apply at inquests. The judge shall not comment on the evidence.
     (k) Witnesses shall be excluded from the courtroom upon request from any participating attorney, except any law enforcement officer or person whose actions are being reviewed, and at least one representative of the family of the deceased shall be allowed to remain in the courtroom during the entire proceeding.
     (l)(i) The prosecuting attorney shall ordinarily conduct the initial examination of each witness, provided that the judge may determine that another attorney for a participating party may conduct the initial examination of a witness.
     (ii) The attorney for the participating parties shall be allowed follow-up questions within the scope of the inquest.
     (iii) The attorneys for the parties shall rotate the initial opportunity for follow-up questions.
     The attorney representing the person involved in the death shall have the prerogative of first asking follow-up questions of such person, when desired. The attorney representing the family of the deceased shall have the prerogative of first asking follow-up questions of the family, when desired.
     (m) Interrogatories to the jury must deal with questions of fact. They must not deal with questions of law, policy, or recommendations. The purpose of the interrogatories is to give the jury an opportunity to judge credibility and determine the significant factual issues involved in the inquest. To this end, it is expected that the jury will decide what actions occurred and, where appropriate, what the actors thought or knew. Interrogatories shall not answer whether any person or agency is civilly or criminally liable.
     (n) The jury shall be given written instructions by the judge. The jury shall be told to indicate the number of yes/no findings for each interrogatory.
     (o) At the conclusion of the inquest, the judge shall promptly transmit the jury's findings and its responses to interrogatories to the county executive or county legislative authority in those counties where no county executive exists.

Sec. 3   RCW 36.24.020 and 2009 c 549 s 4032 are each amended to read as follows:
     ((Any)) (1) A coroner, in his or her discretion, may hold an inquest if the coroner suspects that the death of a person was unnatural, or violent, or resulted from unlawful means, or from suspicious circumstances, or was of such a nature as to indicate the possibility of death by the hand of the deceased or through the instrumentality of some other person: PROVIDED, That, except under suspicious circumstances, no inquest shall be held following a traffic death.
     (2) An inquest may be held pursuant to section 2 of this act by a county to investigate the causes and circumstances of any death within the county involving a member of a law enforcement agency while in the performance of his or her duties. Any inquest conducted under this subsection shall be conducted by the county executive, or in those counties in which an elected county executive does not exist, by the county coroner or medical examiner.
     (3) The coroner, county executive, or medical examiner in the county where an inquest is to be convened pursuant to this chapter shall notify the superior court to provide persons to serve as a jury of inquest to hear all the evidence concerning the death and to inquire into and render a true verdict on the cause of death. Jurors shall be selected and summoned in the same manner and shall have the same qualifications as specified in chapter 2.36 RCW. The prosecuting attorney having jurisdiction shall be notified in advance of any such inquest to be held, and at his or her discretion may be present at and assist the coroner, county executive, or medical examiner in the conduct of the same. The coroner, county executive, or medical examiner may adjourn the inquest from time to time as he or she may deem necessary.
     The costs of inquests shall be borne by the county in which the inquest is held.