IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO GR 14, RAP 10.4, ER 412, CrR 4.7 AND CrRLJ 4.7

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ORDER NO. 25700-A-759

     The Washington State Bar Association having recommended the adoption of the proposed amendments to GR 14, RAP 10.4, ER 412, CrR 4.7 and CrRLJ 4.7, and the Court having approved the proposed amendments for publication;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provisions of GR 9(f), the proposed amendments as attached hereto are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in January 2003.

     (b) The purpose statement as required by GR 9(d), is published solely for the information of the Bench, Bar and other interested parties.

     (c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2003. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Lisa.Bausch@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

     DATED at Olympia, Washington this 5th day of December 2002.

	Gerry L. Alexander
	CHIEF JUSTICE

     (C) Purpose: The Electronic Communications (EC) Committee of the Washington State Bar Association proposed a rule amendment providing for "universal citation" of appellate cases. Universal citation provides an alternative to the traditional way of citing cases. Its goal is to accommodate electronic and other sources of legal materials that weren't available until recently. Universal citation proposes assigning to each decision a unique numerical identifier distinct from that of the Washington Reports or Washington Appellate volumes where decisions have traditionally resided. It is intended to facilitate the organization and retrieval of decisions within all media, not just bound volumes.

     For example, the EC Committee suggested that volumes be designated by year and numerical designator range. It also suggested that each decision contain paragraph numbers to allow for "pinpoint" citation by such numbers, rather than by page numbers that can vary by publisher. Thus, a case could be cited "traditionally" and "universally" as Smith v. Jones, 150 Wn.2d 175, 181 (2003), 2003 Wa 132 ¶ 14. As the EC Committee noted, other universal citation methods can be envisioned.

     The WSBA Court Rules and Procedures Committee endorsed the concept of universal citation. It agreed that traditional page numbers are not practical for electronic versions of opinions and supported the idea of public access to cases independent of commercial vendors. However, the Committee was also concerned that the rule proposed by the EC Committee was too complex - e.g., in dealing with amended or corrected opinions - and would not allow for easy amendment.

     The Rules Committee then noted that RAP 10.4(g) addressed citation format, although only for appellate briefs, and that the Reporter of Decisions had developed a "style sheet" incorporating the provisions of the rule along with other requirements. The Committee believed that all citation format requirements could and should be contained in this style sheet, which can be more quickly and easily changed to accommodate new developments than a rule. The Committee thus proposed that a general rule be adopted referring to the style sheet (and requiring that a current version be published as an appendix each year in the rule book as an aid to practitioners). Along with accommodating the universal citation concept, this should lead to more uniformity in citations not only in the appellate courts but in the trial courts (e.g., trial briefs, memoranda in support of motions, etc.) as well.

     The Rules Committee therefore recommended this amendment to GR 14, as well as a companion amendment to RAP 10.4(g).

     (d) Citation Format. Citations shall conform with the format prescribed by the Reporter of Decisions. (See Appendix 1.)

NOTE: The WSBA Court Rules and Procedures Committee recommends that the Appendix consist of the Reporter of Decisions "style sheet," and that an updated version be included in the published rule book each year, thereby allowing any changes to be incorporated easily as they are made and providing a ready reference for practitioners.

     (C) Purpose: Please see the purpose statement for the proposed amendment to General Rule (GR) 14.

     (a) - (f) Unchanged.

     (g) [Reserved. See GR 14(d).] 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) - (i) Unchanged.

     (A) Purpose: The proposed amendment would adopt Federal Rule of Evidence 412, as to civil cases, in Washington.

     In 1975 (the same year that the original Federal Rules of Evidence were adopted), the Washington State Legislature adopted RCW 9A.44.020, the so-called "rape shield law." This statute, applicable only to criminal cases, restricts the introduction of evidence of a victim's past sexual behavior. It also provides a pretrial procedure for admitting such evidence when it may be arguably proper to do so.

     A 1978 amendment to the Federal Rules added Rule 412, limited at that time to criminal cases in a manner similar to Washington's statute; 1994 amendments extended the coverage of FRE 412 to civil cases as well as to all criminal cases. When Washington adopted its Rules of Evidence in 1979, there was no mention of this subject. A 1988 amendment to ER 412 added a "reserved" reference to RCW 9A.44.020. The 1988 comment to ER 412 noted the similarity between the statute and Federal Rule 412 as it existed at that time. The comment also contemplated possible future rulemaking by the Washington Supreme Court in this area.

     Thus, current law limits the admissibility of evidence of a victim's sexual behavior or sexual predisposition in federal civil and criminal cases, and in state criminal cases, but not in state civil cases. The proposed amendment is intended to close this gap. There appears no logical reason why more evidence of a victim's sexual history should be admissible in a state civil proceeding than in a criminal proceeding where a defendant's liberty, and perhaps his life, is at stake.

     The amendment would safeguard against the invasion of privacy, potential embarrassment, and sexual stereotyping that inevitably result from the unnecessary injection of intimate sexual information and innuendo into the fact-finding process. Just as RCW 9A.44.020 was adopted to encourage victims of sexual crimes to come forward, the amendment is designed to encourage victims of sexual misconduct to come forward and obtain civil redress without fear of "revictimization" by the legal process.

     The amendment balances the privacy interests of victims with the legitimate need of a defendant who is alleged to have committed sexual misconduct to introduce evidence of the victim's sexual behavior in appropriate circumstances. The rule would give the judge discretion to allow this evidence when it is significantly probative in a particular case.

     The amendment adding a new section (a) simply provides a caption for criminal cases and a reference to the existing statute.

     New section (b) provides that in a civil proceeding involving alleged sexual misconduct, evidence of an alleged victim's sexual behavior or sexual predisposition is inadmissible except as provided in sections (c) and (d) of the rule. New section (c) sets forth the exceptions: the evidence must be otherwise admissible and its probative value must substantially outweigh the danger of harm to any victim and of unfair prejudice to any party. Evidence of the alleged victim's reputation "is admissible only if it has been placed in controversy by the alleged victim."

     New section (d) provides a procedural mechanism whereby a party intending to offer evidence under the exception provision must file a written motion at least 14 days before trial. The court must hold an in camera hearing, at which the parties and the alleged victim have the right to be present and to be heard. The papers and record of the hearing must be sealed, unless the court orders otherwise.

     One of the other effects of the rule could be to give judges an explicit basis in the rules of evidence for granting protective orders regarding discovery of sexual history. A protective order could be justified based on an argument that such discovery would not be "reasonably calculated to the discovery of admissible evidence," CR 26(a).

     Federal Rule of Evidence 412 has applied to civil cases for over eight years. A number of other states, including California, Hawaii, Maine, and Tennessee, have adopted a similar rule applicable to civil cases.

     For additional information about FRE 412, see Notes of Advisory Committee to the 1994 Amendment, Federal Rules of Evidence, pp. 55-59 (WestGroup 1999).

     (a) Criminal Cases. [Reserved. See RCW 9A.44.020.]

     (b) Civil Cases; Evidence Generally Inadmissible. The following evidence is not admissible in any civil proceeding involving alleged sexual misconduct except as provided in sections (c) and (d):

     (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

     (2) Evidence offered to prove any alleged victim's sexual predisposition.

     (c) Exceptions. In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim.

     (d) Procedure to determine admissibility.

     (1) A party intending to offer evidence under section (c) must:

     (A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause, requires a different time for filing or permits filing during trial; and

     (B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative.

     (2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.

     Purpose: The amendment section (h)(3) is intended to to relieve a burden on defense counsel, while recognizing the need to protect victims and witnesses from possible harassment or embarrassment. Under the existing rule as usually interpreted, a defense lawyer may not provide copies of discovery documents to his or her client for review. Rather, the lawyer must remain with the client in a conference room (or in the custodial facility with an incarcerated client). Yet there appears to be no restriction on the client reading the material, taking notes, or even making a verbatim copy of the information contained in the documents.

     Proponents argue that changing the rule would enhance the preparation of an effective defense. Not only could the lawyer's time be used more effectively, but the client would have the opportunity to review and reflect upon the documents. Increasing familiarity with the information in the documents may result in new insights or improved recollections. Defense lawyers also report that trial courts routinely grant motions that allow redacted copies to be given to clients. Codifying this practice would eliminate repeated motions to the court.

     In fact, full access to and an increased opportunity to review all the evidence may result in additional guilty pleas, reducing the trial burden on the courts. Defendants who feel that evidence is not being hidden from them, or who see the full panoply of evidence against them and have it sink in, may be less likely to insist on a trial. When trials do occur, they may well be more expeditious, with all parties fully prepared from a pretrial review of documents.

     Moreover, a pro se defendant would be entitled to the actual documents under the discovery rules. Some defense counsel have expressed concern that certain defendants may be encouraged to become "co-counsel" in their own cases in order to gain access to discovery materials, an approach not favored by the courts. Changing the current rule would likely discourage this practice, by increasing trust between clients and their lawyers, and indeed reducing clients' distrust of the legal system in general.

     The purpose of the existing rule is to prevent witness tampering or retaliation that might occur if the defendant learned of a witness's identity and whereabouts. But as the defendant can memorize, copy, or make notes from discovery documents reviewed in the presence of counsel, it is questionable whether the rule truly serves this purpose. The proposed rule in fact may advance privacy concerns, by requiring as a standard practice the excision of addresses, phone numbers, and photographs.

     The proposed amendment would permit a defense lawyer to provide a copy of discovery materials to the defendant, but only after all addresses, telephone numbers and other information concerning the location of witnesses (except for police offices and expert witnesses) has been excised. It would also require that photographs be eliminated from the materials given to the defendant. A defendant, whether pro se or represented by counsel, would be subject to the same general restrictions as a lawyer: that the materials be used "only for the purposes of conducting the party's side of the case.

     The sections of the rule providing for protective orders and sanctions would still be available in cases (such as sex crimes) where further protection of the victim is necessary.

     (a) - (g) Unchanged.

     (h) Regulation of Discovery.

     (1) - (2) Unchanged.

     (3) Custody of Materials. Any materials furnished to an attorney pursuant to these rules to a lawyer or to a defendant shall remain in the exclusive custody of the attorney and be used only for the purposes of conducting the party's side of the case., and A defense lawyer may provide a copy of the discovery to the defendant only after all addresses, telephone numbers and other information concerning the location or whereabouts of witnesses (excluding police officers and expert witnesses) and all photographs of the alleged victim have been excised from the materials. The materials shall be subject to such other terms and conditions as the court may provide.

     (4) - (6) Unchanged.

     (7) Sanctions.

     (i) if at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, dismiss the action or enter such other order as it deems just under the circumstances.

     (ii) a lawyer's or defendant's willful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel the lawyer or defendant to appropriate sanctions by the court.

     (a) - (f) Unchanged.

     (g) Regulation of Discovery.

     (1) - (2) Unchanged.

     (3) Custody of Materials. Any materials furnished to a lawyer pursuant to these rules to a lawyer or to a defendant shall remain in the exclusive custody of the lawyer and be used only for the purposes of conducting the party's side of the case., and A defense lawyer may provide a copy of the discovery to the defendant only after all addresses, telephone numbers and other information concerning the location or whereabouts of witnesses (excluding police officers and expert witnesses) and all photographs of the alleged victim have been excised from the materials. The materials shall be subject to such other terms and conditions as the court may provide.

     (4) - (6) Unchanged.

     (7) Sanctions.

     (i) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as it deems just under the circumstances.

     (ii) The court may at any time dismiss the action if the court determines that failure to comply with an applicable discovery rule or an order issued pursuant thereto is the result of a willful vioation or of gross negligence and that the defendant was prejudiced by such failure.

     (iii) A lawyer's or defendant's willful violation of an applicable discovery rule or an order issued pursuant thereto may subject the lawyer or defendant to appropriate sanctions by the court.

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

     Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

     Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

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