WSR 11-23-037



[ November 4, 2011 ]





NO. 25700-A-991

The Superior Court Judges' Association having recommended the adoption of the proposed amendments to CrR 3.1-Right to and Assignment of Lawyer, and the Court having approved the proposed amendments for publication;

Now, therefore, it is hereby


(a) That pursuant to the provisions of GR 9(g), the proposed amendments as shown below 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.

(b) The purpose statement as required by GR 9(e), 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, 2012. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 4th day of November, 2011.
For the Court

Madsen, C.J.



Suggested Amended CrR 3.1 Right to

and Assignment of Lawyer

(1) Name of Proponent: Superior Court Judges' Association

(2) Spokesperson: To be determined.

(3) Purpose: The proposed amendment is designed to balance the rights of the defendant against the rights of witnesses in criminal cases. Persons accused of crimes have a federal and state constitutional right to the assistance of counsel for their defense. The Supreme Court of the United States has held that defendants also have the right to waive representation by counsel and to represent themselves regardless of the crime charged. When a defendant waives the right to counsel, witnesses are then subject to questioning by the defendant.

The right to appear pro se exists to affirm the dignity and autonomy of the defendant and to allow the presentation of what may be the defendant'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 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 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.

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 also not absolute and that in some cases, the defendant's right to face-to-face confrontation may be outweighed where necessary to further an important public policy and only where the reliability of the testimony is otherwise assured. The Washington State Supreme Court has held that the 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.

The amendment confirms the court's authority to control the courtroom, and in cases in which the court has determined in a hearing outside the presence of the jury that a defendant may not question a witness without restriction gives the court a non-exclusive list of means of moving the case forward in a manner that is fair to both the defendant and witnesses.

(4) Hearing: A hearing is recommended.

(5) Expedited Consideration: Expedited consideration is requested.

(g) Pro Se Defendants

(1) When a defendant has waived his or her right to counsel, the court, on a motion by the prosecuting attorney, on its own initiative, or at the request of a witness, and for good cause shown, may restrict the manner and means by which a defendant questions a witness.

(2) Good cause is shown when the court finds by substantial evidence, in a hearing conducted outside the presence of the jury, that requiring the witness to be questioned by the defendant without restriction will cause that individual to suffer serious emotional or mental distress that will prevent the witness from reasonably communicating at the trial.

(3) The court shall state on the record the basis for good cause.

(4) When the court does not permit the pro se defendant to question a witness without restriction, the court may impose reasonable procedures including but not limited to:

(i) requiring questioning by the defendant of the witness using remote audio-visual means when authorized by law;

(ii) allowing stand-by counsel to question the witness with the agreement of the defendant,.

Nothing herein precludes a court from using other means to control the courtroom including but not limited to prohibiting the defendant from approaching the witness during questioning and requiring the defendant to remain seated during questioning of the witness.

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

Washington State Code Reviser's Office