WSR 98-01-048

RULES OF COURT

STATE SUPREME COURT

[December 4, 1997]

IN THE MATTER OF THE ADOPTION ) ORDER

OF THE AMENDMENTS TO RAP 10.4, ) NO. 25700-A-614

RAP 16.1, RAP 16.3, RAP 16.7, )

RAP 16.15, RAP 16.19, NEW RAP )

16.20, NEW RAP 16.21, NEW RAP )

16.22, NEW RAP 16.23, NEW RAP )

16.24, NEW RAP 16.25, NEW RAP )

16.26, NEW RAP 16.27; NEW SPRC )

1, NEW SPRC 2, NEW SPRC 3, NEW )

SPRC 4, NEW SPRC 5, NEW SPRC )

6, AND NEW SPRC 7 )

The Supreme Court Committee to Examine Indigent Appellate Defense in Capital Cases having recommended the adoption of the proposed amendments to RAP 10.4, RAP 16.1, RAP 16.3, RAP 16.7, RAP 16.15, RAP 16.19, New RAP 16.20, New RAP 16.21, New RAP 16.22, New RAP 16.23, New RAP 16.24, New RAP 16.25, New RAP 16.26, New RAP 16.27; New SPRC 1, New SPRC 2, New SPRC 3, New SPRC 4, New SPRC 5, New SPRC 6, and New SPRC 7, and the Court having determined that the proposed amendments will aid in the prompt and orderly administration of justice and further determined that an emergency exists which necessitates an early adoption;

Now, therefore, it is hereby

ORDERED:

(a) That the amendments as attached hereto are adopted.

(b) That pursuant to the emergency provisions of GR 9(i), the amendments will be published expeditiously and become effective upon publication.

DATED at Olympia, Washington this 4th day of December, 1997.

Durham, C.J.

_______________________

Dolliver, J. Madsen, J.

________________________ ________________________

Smith, J. Talmadge, J.

________________________ ________________________

Guy, J. Alexander, J.

________________________ ________________________

Johnson, J. Sanders, J.

________________________ ________________________

(a) Typing or Printing Brief. Briefs shall conform to the following requirements:

(1) One legible, clean, and reproducible copy of the brief must be filed with the appellate court. The brief should be printed or typed in black on 20-pound substance 8 1/2- by 11-inch white paper. Margins should be at least 2 inches on the left side and 1 1/2 inches on the right side and on the top and bottom of each page.

(2) The text of any brief typed or printed in a proportionally spaced typeface must appear in print as 12 point or larger type with no more than 10 characters per inch and 3 points or more leading between lines double spaced. The same typeface and print size should be standard throughout the brief, except that footnotes may appear in print as 10 point or larger type with 2 points or more leading between lines and be the equivalent of single spaced and quotations may be the equivalent of single spaced. Except for material in an appendix, the typewritten or printed material in the brief shall not be reduced or condensed by photographic or other means.

(3) The text of any brief typed or printed in a monospaced typeface shall be done in pica type or the equivalent at no more than 10 characters per inch. The lines must be double spaced, that is, there may be at most 3 lines of type per inch. Quotations and footnotes may be single spaced. Except for material in an appendix, the typewritten or printed material in the brief shall not be reduced or condensed by photographic or other means.

(b) Length of Brief. A brief of appellant, petitioner, or respondent, and a pro se brief in a criminal case should not exceed 50 pages. A reply brief should not exceed 25 pages. An amicus curiae brief, or answer thereto, should not exceed 20 pages. For the purpose of determining compliance with this rule appendices, the title sheet, table of contents, and table of authorities are not included. For compelling reasons the court may grant a motion to file an over-length brief.

(c) Text of Statute, Rule, Jury Instruction, or the Like. If a party presents an issue which requires study of a statute, rule, regulation, jury instruction, finding of fact, exhibit, or the like, the party should type the material portions of the text out verbatim or include them by copy in the text or in an appendix to the brief.

(d) Motion in Brief. A party may include in a brief only a motion which, if granted, would preclude hearing the case on the merits.

(e) Reference to Party. References to parties by such designations as "appellant" and "respondent" should be kept to a minimum. It promotes clarity to use the designations used in the lower court, the actual names of the parties, or descriptive terms such as "the employee," "the injured person," and "the taxpayer."

(f) Reference to Record. A reference to the record should designate the page and part of the record. Exhibits should be referred to by number. The clerk's papers should be abbreviated as "CP"; exhibits should be abbreviated as "Ex"; and the report of proceedings should be abbreviated as "RP." Suitable abbreviations for other recurrent references may be used.

(g) Citations. Citations must be in conformity with the form used in current volumes of the Washington Reports. Decisions of the Supreme Court and of the Court of Appeals must be cited to the official report thereof and should include the national reporter citation and the year of the decision. The citation of other state court decisions should include both the state and national reporter citations. The citation of a United States Supreme Court decision should include the United States Reports, the United States Supreme Court Reports Lawyers' Edition, and the Supreme Court Reporter. The citation of a decision of any other federal court should include the federal reporter citation and the district of the district court or circuit of the court of appeals deciding the case. Any citation should include the year decided and a reference to and citation of any subsequent decision of the same case.

(h) Unpublished Opinions. A party may not cite as an authority an unpublished opinion of the Court of Appeals.

(a) Generally. . . .

(b) Original Actions in Supreme Court Against State Officers. . . .

(c) Original Actions in the Appellate Court--Personal Restraint Petition. . . .

(d) Questions Certified by Federal Court. . . .

(e) Review of Decision of the Court of Appeals. . . .

(f) Removal of Public Officer. . . .

(g) Review of Sentence. . . .

(h) Capital Cases. Rules 16.19 through 16.27 define the procedure for appeals and original actions in which the death penalty has been decreed.

(a) Habeas Corpus and Postconviction Relief. Rules 16.3 through 16.15 and rules 16.24 through 16.27 establish a single procedure for original proceedings in the appellate court to obtain relief formerly available by a petition for writ of habeas corpus or by an application for postconviction relief.

(b) Former Procedure Superseded. The procedure established by rules 16.3 through 16.15 and rules 16.24 through 16.27 for a personal restraint petition supersedes the appellant procedure formerly available for a petition for writ of habeas corpus and for an application for post-conviction relief, unless one of these rules specifically indicates to the contrary. These rules do not supersede and do not apply to habeas corpus proceedings initiated in the superior court.

(c) Original Appellate Court Jurisdiction. The Supreme Court and the Court of Appeals have original concurrent jurisdiction in personal restraint proceedings in which the death penalty has not been decreed. The Supreme Court will ordinarily exercise its jurisdiction by transferring the petition to the Court of Appeals. The Supreme Court has exclusive original jurisdiction in personal restraint proceedings in which the petitioner is under a sentence of death.

(a) Generally. Under the titles indicated, the petition should set forth:

(1) Status of Petitioner. The restraint on petitioner; the place where petitioner is held in custody, if confined; the judgment, sentence, or other order or authority upon which petitioner's restraint is based, identified by date of entry, court, and cause number; any appeals taken from that judgment, sentence or order; and a statement of each other petition filed with regard to the same allegedly unlawful restraint, identified by the date filed, the court, the disposition made by the court, and the date of disposition.

(2) Grounds for Relief. A statement of (i) the facts upon which the claim of unlawful restraint of petitioner is based and the evidence available to support the factual allegations, (ii) why other remedies are inadequate, and (iii) why the petitioner's restraint is unlawful for one or more of the reasons specified in rule 16.4(c). Legal argument and authorities may be included in the petition, or submitted in a separate brief as provided in rule 16.10(a).

(3) Statement of Finances. If petitioner is unable to pay the filing fee or fees of counsel, a request should be included for waiver of the filing fee and for the appointment of counsel at public expense. The request should be supported by a statement of petitioner's total assets and liabilities.

(4) Request for Relief. The relief petitioner wants.

(5) Oath. If a notary is available, the petition must be signed by the petitioner or his attorney and verified substantially as follows:

After being first duly sworn, on oath, I depose and say: That I am the petitioner, that I have read the petition, know its contents, and I believe the petition is true.

After being first duly sworn, on oath, I depose and say: That I am the attorney for the petitioner, that I have read the petition, know its contents, and I believe the petition is true.

Subscribed and sworn to before me this day of , 19 .

Notary Public in and for the State of Washington, residing at .

If a notary is not available, the petition must be subscribed by the petitioner or his attorney substantially as follows:

I declare that I have examined this petition and to the best of my knowledge and belief it is true and correct.

Dated this day of , 19 .

If a notary is available and a petition if filed which is not verified, the appellate court will return the petition for verified signature and advise the petitioner's custodian to make a notary available.

(6) Verification. In all cases where the restraint is the result of a criminal proceeding and the petition is prepared by the petitioner's attorney, the petitioner must file with the court no later than 30 days after the petition was received by the court a document that substantially complies with the following form:

I declare that I have received a copy of the petition prepared by my attorney and that I consent to the petition being filed on my behalf.

Dated this day of , 19 .

[Signature]

If the petitioner has been declared incompetent, the verification may be filed by the guardian ad litem. If a petition has been filed to determine competency, the verification procedure shall be tolled until competency is determined.

(b) Standard Form. The clerk of the appellate court will make the standard form of petition available to persons who are confined in state institutions and to others who may request the form.

(a) Motion. The procedure for and form of a motion is as provided in Title 17, except that a motion by the petitioner must be verified in the same manner as a petition. Motions will ordinarily be considered without oral argument.

(b) Release by Appellate Court of Person in Custody. The appellate court may release a petitioner on bail or personal recognizance before deciding the petition, if release prevents further unlawful confinement and it is unjust to delay the petitioner's release until the petition is determined. The appellate court or the superior court in its decision on the merits, or by separate order after a decision on the merits, may release a petitioner on bail or on personal recognizance. The appellate court may direct the release of petitioner with the conditions of release to be determined by a trial court.

(c) Oral Argument. Except as otherwise provided in rule 16.11(c), the procedure for oral argument is governed by Title 11.

(d) Disposition of Petition. The petition will be determined by the appellate court by written opinion or order briefly stating the reasons for the determination.

(e) Certificate of Finality. A certificate of finality is the written notification of the clerk of the appellate court to the trial court and the parties that the proceedings in the appellate court have come to an end.

(1) When Certificate of Finality is Issued by the Court of Appeals. The clerk of the Court of Appeals issues the certificate of finality:

(a) Thirty days after the decision is filed, unless (i) a motion for reconsideration of the decision has been earlier filed, or (ii) a motion for discretionary review to the Supreme Court has been earlier filed.

(b) If a motion for reconsideration is timely filed and denied, 30 days after filing the order denying the motion for reconsideration, unless a motion for discretionary review by the Supreme Court has been earlier filed.

(c) If a motion for discretionary review has been timely filed and denied by the Supreme Court, upon denial of the motion for discretionary review.

(2) When Certificate of Finality is Issued by the Supreme Court. The clerk of the Supreme Court issues the certificate of finality twenty days after the written opinion or order disposing of the petition is filed unless a motion for reconsideration of the decision is filed. If a motion for reconsideration is timely filed, the certificate of finality shall issue upon the entry of an order denying the motion for reconsideration.

(ef) Costs. Costs are awarded as provided in Title 14.

(fg) Indigency -- Superior Court Determination. . . .

(gh) Indigency -- Appellate Court Proceeding. . . .

(a) The clerk of the trial court shall prepare a list of all pre-trial hearings, trial proceedings, and post-trial hearings, including any in camera or ex parte proceedings, that specifies the date of the hearing and the name of the court reporter. This list shall be served by the clerk of the trial court on each court reporter, the prosecuting attorney, the defendant's trial counsel and appellate counsel, and the trial judge within 10 days of the entry of a judgment and sentence. If appellate counsel has not been appointed to represent the defendant when the list is first prepared, the clerk of the trial court shall send a copy of the list to each appellate counsel within 10 days of appointment.

(b) Any party may serve and file objections to, and propose amendments to the list within 10 days after receipt of the list prepared by the clerk of the trial court. If objections or amendments to the list are served and filed, any objections or proposed amendments must be heard by the trial court judge for settlement and approval. If the judge before whom the proceedings were held is for any reason unable to promptly settle questions, another judge may act in the place of the judge before whom the proceedings were held.

(c) Once the list of hearings is settled, the clerk of the trial court shall serve a copy on each court reporter and shall file a copy with the Supreme Court. The final list should indicate the date it was served on the court reporters and the financial arrangements which have been made for payment of transcription costs.

(d) The court reporter shall complete the report of proceedings within 90 days after the reporter receives the list of hearings. If the report of proceedings cannot be completed within this time, the court reporter shall, no later than 10 days before the due date, submit an affidavit to the prosecuting attorney, to the defense appellate attorney, and to the Supreme Court stating the reasons for the delay. Any party or any court reporter may move for an extension of time from the Supreme Court.

(e) The court reporter shall file the report of proceedings with the clerk of the trial court. The clerk of the trial court shall transmit the report of proceedings to the Supreme Court. The clerk of the Supreme Court shall provide one copy of the report of proceedings to the defendant, two copies of the report of proceedings to the defendant's appellate attorney, and one copy of the report of proceedings to the prosecuting attorney.

(f) Objections or amendments to the report of proceedings may be served and filed within 30 days after the party receives a copy of the report of all proceedings. Copies of all objections shall be filed with the Supreme Court. The trial court shall settle the report of proceedings in accordance with RAP 9.5 (c) and (d). The briefing schedule shall be suspended until the record is settled.

(g) The record may be corrected or supplemented at any time in accordance with RAP 9.10.

If questionnaires are used during jury selection, the clerk of the trial court shall seal and transmit a copy of all the questionnaires to the Supreme Court along with all of the clerk's papers, including copies of any clerk's minutes. The clerk will provide defendant's appellate counsel and the prosecuting attorney copies of all of the juror questionnaires. These copies shall remain in the possession of counsel and not be made available to the defendant.

The clerk of the Supreme Court shall copy and distribute the clerk's papers as follows: one copy to the defendant, two copies to the defendant's appellate attorneys, and one copy to the prosecuting attorney.

(a) Application of Rule. This rule applies only in direct appeals in criminal cases.

(b) Clerk's Conference. Upon receipt of the notice of appeal in a capital case by the Supreme Court, the clerk of the court shall set a clerk's conference. The clerk of the court shall give notice to the parties of the date, time, and place of the conference; the name of the commissioner or clerk who will conduct the conference; and the nature of the issues to be discussed at the conference. The convening of a clerk's conference shall not stay the requirements otherwise established by these rules. The clerk may continue a conference or convene another conference when necessary to establish procedures in the case.

(c) Attendance at Clerk's Conference. The attorneys for each party, if the notice requires it, shall attend the clerk's conference on the date, time, and place specified in the clerk's notice. Those in attendance should be ready to seriously consider the procedural issues attendant upon the case, including, but not limited to, settlement of the record, the briefing schedule, the page limitations for briefs, oral argument, and other matters which may promote the prompt and fair disposition of the appeal.

(d) Clerk's Conference Order. If, as a result of the clerk's conference, the parties agree to various matters to promote the prompt and fair disposition of the appeal, the Court may enter an order consistent with that agreement. If the parties fail to agree on any issue, the court will resolve the issues and enter an order. The order is binding on the parties during the review proceeding, unless the court otherwise directs on its own initiative or on motion of a party for good cause shown and on those terms the court deems appropriate.

(a) The brief of an appellant shall be filed in the Supreme Court within 120 days after the report of proceedings is settled or the last date for filing any objections pursuant to Rule 5(f). The brief of a respondent shall be filed within 120 days after service of the brief of appellant.

(b) The personal restraint petition shall be filed within 180 days after the appointment of counsel or the court's determination that counsel will not be appointed. The response to a personal restraint petition shall be filed within 120 days after service of the petition.

(c) A brief of appellant or respondent, or a brief in support of or opposition to a personal restraint petition, shall not exceed 250 pages. A reply brief, a pro se supplemental brief, or the response to a pro se supplemental brief, shall not exceed 75 pages.

(d) If legal arguments are included in a personal restraint petition or the response to a personal restraint petition, no separate brief may be filed. A petition or response that contains legal arguments may not exceed 300 pages. The petition or response shall comply with RAP 10.4(a).

(e) The clerk will retain but not formally file a brief, petition, or response that exceeds these page limits, except on prior order of the court. Such an order will only be granted for compelling reasons. The clerk will not file a brief, petition, or response that violates the format requirements of RAP 10.4(a), if a properly formatted brief would violate the page limits. The clerk shall direct the party whose document has been rejected for formal filing to correct the deficiencies within a specified time period.

(f) For the purpose of determining compliance with this rule, appendices, the title sheet, table of contents, and table of authorities are not included.

(a) The parties may file a non-binding notice 14 days prior to oral argument that specifies the order in which issues will be presented and identifies which counsel will present the argument on each issue.

(b) At any time before receipt of such notice the clerk of the Supreme Court shall inform the parties if any member of the Court wants certain issues to be addressed during oral argument. After receipt of such notice, the clerk of the Supreme Court may notify the parties if any member of the Court wants additional issues to be addressed during oral argument.

(c) Each side is allowed 120 minutes for oral argument.

(a) A motion for stay of execution will be decided by the en banc court, except that the Clerk may decide an application for a stay of execution in connection with a first petition for relief from restraint. No stay will be granted until after a death warrant has been issued. When any stay is granted, the clerk will immediately notify, in addition to the parties, the Superintendent of the Washington State Penitentiary, and the Attorney General. A stay of execution will dissolve thirty (30) days after a certificate of finality is issued.

(b) The petitioner or his or her lawyer may file an application for a stay of execution in connection with a first petition for relief from restraint. This application shall be accompanied by a statement, describing one or more grounds for relief, which shall be deemed to be a petition for relief from restraint with leave granted a priori to amend the petition upon appointment of counsel.

(c) Upon the filing of this application and statement, the Supreme Court Clerk shall issue a stay of execution, if the statement identified any ground for relief that is not patently frivolous. The stay will remain in effect until the certificate of finality is issued.

(d) A stay of execution pending a final disposition of a second or subsequent petition shall not be granted unless the petitioner makes a substantial showing that the petition is not barred by RCW chapter 10.73 or RAP 16.4(d).

The date the statement of grounds for relief that accompanies an application for a stay of execution in connection with a first petition for relief from restraint is filed shall be deemed under Washington law to be "the date on which the first petition for post-conviction review or other collateral relief is filed", 1996 Antiterrorism and Effective Death Penalty Act, Chapter 154, sec. 2263 (b)(2).

A stay will be granted "if the statement identifies any ground for relief that is not patently frivolous." In general, a claim could be considered "patently frivolous" only if (1) it was rejected on its merits on direct appeal, (2) it is clearly contrary to binding precedent, or (3) it is clearly contrary to the established record. A claim of ineffective assistance of counsel that was not raised on direct appeal will generally not be considered "patently frivolous".

Unless petitioner is proceeding pro se or is represented by retained counsel, upon a request by petitioner to the Clerk of the Supreme Court and upon a finding that the petitioner is indigent, the Supreme Court shall appoint counsel to assist in preparing and presenting a first personal restraint petition. Appointed counsel must have demonstrated the necessary proficiency and commitment which exemplifies the quality of representation appropriate to capital cases. At least one attorney so appointed must have at least three years of experience in handling appeals or collateral reviews on criminal convictions and must be learned in the law of capital punishment by training or experience.

A list of attorneys qualified for appointment in death penalty personal restraint petitions will be recruited and maintained by a panel created by the Supreme Court. In appointing counsel, the Supreme Court will consider this list. However, the Supreme Court will have the final discretion in the appointment of counsel in personal restraint petitions in capital cases.

Counsel will not be appointed if the petitioner has clearly elected to proceed pro se and the court is satisfied that petitioner's election is knowing, intelligent, and voluntary. An attorney who represented the petitioner at trial will not be appointed. An attorney who represented petitioner on direct appeal will not be appointed unless petitioner and the attorney expressly request continued representation. Statutes providing for payment of expenses with public funds are not superseded by this rule.

The Supreme Court may appoint counsel to assist in a second or subsequent petition in accord with RCW 10.73.150

(1) (a) Before or after a person under sentence of death files a personal restraint petition, the Supreme Court, on motion of that person, may order discovery. To obtain such an order, the person under sentence of death must establish facts that give rise to a substantial reason to believe that the discovery will produce information that would support relief under RAP 16.4(c). Information in support of the request that the person under sentence of death believes is privileged may be separated into a second confidential affidavit which identifies the asserted privilege with specificity and the law supporting the assertion of the privilege. Any affidavit which does not contain confidential information and the motion must be served on the prosecutor. The procedure for and form of the motion is as provided in RAP Title 17. Motions will ordinarily be considered without oral argument. Prior to ruling on the motion, the Court will review the confidential affidavit to determine whether the contents therein are protected by the asserted privilege. If the asserted privilege does not apply, the court will serve the State with a copy of the confidential affidavit at least five two working days before the State's response to the motion is due.

(2) (b) After a person under sentence of death has filed a personal restraint petition, the Supreme Court, on motion of the State, may order discovery. To obtain such an order, the State must establish facts that give rise to a substantial reason to believe that the discovery will produce information that would support the denial of relief under RAP 16.4(c).

(3) (c) Discovery conducted pursuant to this rule shall be governed by the civil rules, unless otherwise ordered by the court.

(4) (d) In the event a remand hearing is ordered, discovery shall be governed by RAP 16.12.

(5) (e) Discovery may be allowed for preparation of a second or subsequent petition attacking the same judgment and sentence only upon a substantial showing that the petition is not barred by RCW ch. 10.73 or RAP 16.4(d).

Before or after the filing of a personal restraint petition, a person under sentence of death may file a motion for investigative, expert, or other services. Such a motion shall be granted only if the person establishes facts that give rise to a substantial reason to believe that the services will produce information that would support relief under RAP 16.4(c), and if the legislature has authorized and approved funding for such services. The motion shall be directed to the Supreme Court and may be made ex parte. Upon a showing of good cause, the moving papers may be ordered sealed by the court and shall remain sealed until further order of the court. Services may be allowed for preparation of a second or subsequent petition attacking the same judgment and sentence only upon a substantial showing that the petition is not barred by RCW ch. 10.73 or RAP 16.4(d).

(a) Except as otherwise stated, these rules apply to all stages of proceedings in criminal cases in which the death penalty has been or may be decreed. These rules do not apply in any case in which imposition of the death penalty is no longer possible.

(b) Except when inconsistent with these rules, the Superior Court Criminal Rules and the Rules of Appellate Procedure shall continue to apply in capital cases.

At least two lawyers shall be appointed for the trial and also for the direct appeal. The trial court shall retain responsibility for appointing counsel for trial. The Supreme Court shall appoint counsel for the direct appeal. Notwithstanding RAP 15.2 (f) and (h), the Supreme Court will determine all motions to withdraw as counsel on appeal.

All counsel for trial and appeal must have demonstrated the proficiency and commitment to quality representation which is appropriate to a capital case. At least one counsel at trial must have five years' experience in the practice of criminal law, be familiar with and experienced in the utilization of expert witnesses and evidence, and be learned in the law of capital punishment by virtue of training or experience. At least one counsel on appeal must have three years' experience in the field of criminal appellate law and be learned in the law of capital punishment by virtue of training or experience.

A list of attorneys qualified for appointment in death penalty trials and for appeals will be recruited and maintained by a panel created by the Supreme Court. In appointing counsel for trial and on appeal, the trial court and the Supreme Court will consider this list. However, the courts will have the final discretion in the appointment of counsel in capital cases.

If the period for filing the death notice has passed, and the death notice has not been filed, the court may then reduce the number of attorneys to one to proceed with the murder trial.

(a) At the commencement of a capital case, the trial court will designate one or more court reporters for that case. To the extent practical, only designated reporters will report all hearings.

(b) As soon as possible after each hearing, the court reporter will transmit stenographic notes, any audio or video tapes, and any other electronic data medium containing notes of the hearing to the courtroom clerk.

(c) The courtroom clerk will index the notes on a records inventory, noting the date of the notes. The courtroom clerk will have the court reporter initial the inventory log as each set of notes is received by the courtroom clerk.

(d) The stenographic notes, any audio or video tapes, and any other electronic data medium containing notes of any hearing shall be stored by the clerk's office in an exhibit box labeled with the defendant's name and cause number to allow easy retrieval of notes. Sealed notes are to be marked "sealed" in red ink and maintained in accordance with GR 15.

(e) Court reporter notes, any audio or video tapes, and any other electronic data medium containing notes of any hearing, sealed or unsealed, shall not be provided to anyone except the court reporter who produced the notes, unless a court order provides otherwise.

(f) A court reporter may withdraw the stenographic notes, any video or audio tapes, and any other electronic data medium containing notes of a hearing as required for transcription upon completing a request slip. The stenographic notes, any audio or video tapes, and any other electronic data medium containing notes shall be returned to the clerk's office at the same time the transcript is filed for transmission to an appellate court.

Before the guilt phase of the trial begins, pursuant to a schedule set by the court, both parties shall provide discovery, pursuant to CrR 4.7 (a) and (b) of evidence that they anticipate offering at the special sentencing proceeding. The trial court has discretion, in accordance with CrR 4.7 (h)(4), to defer disclosure of all or part of the defendant's penalty phase evidence until the guilt phase has been completed. This discovery shall, if necessary, be supplemented pursuant to CrR 4.7 (h)(2).

(1) (a) If the defendant may offer at the special sentencing proceeding expert testimony concerning his or her mental condition, the defendant shall notify the prosecuting attorney at least 30 days prior to the start of jury selection. This time may be extended by the court for good cause.

(2) (b) If the defendant has provided such notification, the court, on motion of the prosecuting attorney, shall enter an order requiring the defendant to submit to examination by one or more experts designated by the prosecuting attorney. The court shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. The defendant may have a representative present at the examination, who may observe the examination but not interfere with or otherwise obstruct the examination. Unless otherwise ordered by the court, the defendant or the defendant's representative may make an audiotape recording of the examination, which shall be made in an unobtrusive manner.

(3) (c) By the date set by the court, the defendant or the defendant's attorney shall provide the State's experts with any reports generated by defense experts, all raw data relied on, and any test results. The information given to the experts shall be supplemented whenever new materials become available.

(4) (d) If the State's expert believes that the material provided by the defendant is inadequate for a proper evaluation, the expert may request the court to require that further materials be provided. If the defendant fails to cooperate with the examination, the expert may request the court to require the defendant to answer specific questions or participate in specific tests. The court shall consider these requests at a closed hearing. The defendant and his or her attorneys shall be given an opportunity to be heard. The prosecuting attorney shall not be allowed to participate. The record of the hearing shall be sealed as provided in subsection (6) (f).

(5) (e) On completing the examination, the prosecution expert shall submit a report setting out the tests performed and their results, the conclusions reached by the expert, and the basis for those conclusions. The report shall be provided to the defendant's attorney and filed with the court.

(6) (f) The expert's report and materials connected with it shall be sealed. The expert shall not discuss his or her conclusions or any information connected with the examination with anyone, other than the defendant's attorneys or other experts whose participation is necessary for a proper examination. Any such experts shall be under the same restrictions.

(7) (g) Within 24 hours after a jury returns a verdict finding a defendant guilty of aggravated murder in the first degree, the court will require the defendant to elect whether he or she may present expert testimony at the special sentencing proceeding concerning his or her mental condition. If the defendant elects not to present such testimony, the report shall remain permanently sealed, the restrictions set out in subsection (6) (f) shall remain permanently in effect, and the State shall be permanently prohibited from direct or derivative use against the defendant of the report or of materials or information provided to the expert. If the defendant elects to present such testimony, the court shall provide a copy of the experts' reports to the prosecuting attorney and shall relieve the experts of the restrictions. The prosecuting attorney may use information obtained from the expert solely to rebut expert testimony offered by the defense at the special sentencing proceeding.

(8) (h) If, in any subsequent proceeding related to the crimes for which the defendant was convicted, the defendant places his or her mental status in issue, the court may direct that relevant portions of the experts' reports be disclosed to the prosecuting attorney and that the experts shall discuss those portions with the prosecuting attorney.

(1) (a) Within 14 days after the entry of a judgment and sentence convicting a defendant of aggravated first degree murder, the prosecuting attorney and the defendant's attorney shall each complete a proposed questionnaire in the form specified in RCW 10.95.120. The proposed questionnaires shall be filed with the clerk of the trial court. Copies shall be provided to the court and served on the opposing attorney.

(2) (b) The court shall consider the proposed questionnaires and all other information in the record. No hearing shall be held unless the court so directs. Within 30 days after the entry of the judgment and sentence, the court shall complete a final questionnaire. The questionnaire shall be submitted to the clerk of the Supreme Court, to the defendant or his or her attorney, and to the prosecuting attorney.

(3) (c) Statements made by an attorney in a proposed questionnaire shall not be considered admissions. Statements made by the court in the final questionnaire shall not be considered findings of fact. The proposed questionnaires and the final questionnaire shall not be used by the parties or the courts for any purpose in connection with the case to which they pertain or any collateral proceeding involving the same defendant. They shall be used only in other cases, for the purpose of making the determination required by RCW 10.95.130(2).

(4) (d) In any brief or memorandum, a questionnaire may be cited in the following format: first and last name of defendant, questionnaire number, county of conviction, year of sentencing. For example: "John Doe, no. 9 (Snohomish, 1982)."

No records, exhibits, or stenographic notes shall be considered for destruction in a case in which the death penalty has been imposed while the defendant is still alive until at least 20 years have elapsed since the issuance of the Supreme Court mandate from the first appeal as a matter of right. Before destroying any records, exhibits, or notes in a capital case, the clerk will provide 60 days notice by certified mail, return receipt requested, to the prosecuting attorney, to the defendant's last known attorney of record, and to the defendant. To allow this notice, an attorney who represents the defendant in any challenge to the conviction should notify the clerk of the trial court of the fact of representation and the attorney's current address. Such notification does not constitute an appearance for any purpose other than receiving notice under this rule.

Reviser's note: The brackets and enclosed material above occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.