WSR 11-24-008



[ November 22, 2011 ]





NO. 25700-A-993

The Superior Court Judges' Association having recommended the adoption of the proposed amendments to CrR 4.6-Depositions, 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 January 2012.

(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 22nd day of November, 2011.
For the Court

Madsen, C.J.



Suggested Amendment


Rule 4.6: Depositions

Submitted by the Superior Court Judges Association

Purpose: The ability to obtain a deposition in a criminal case in Washington courts is more limited than in other jurisdictions.1 The current rule only allows depositions where it appears that a prospective witness will be unavailable at trial or if the witness "refuses to discuss the case with either counsel." CrR 4.6(a). The Court of Appeals strictly construed this language in a recent case, holding the trial court erred in ordering the depositions of police officer witnesses who refused to allow defense counsel to tape record their pretrial interviews. State v. Mankin, 158 Wn. App. 111, 124-25, 241 P.3d 421 (2010). The Mankin court stated that, under CrR 4.6(a), refusing to participate in a taped interview does not constitute a refusal to discuss the case with counsel. Id. at 121.

It is submitted that CrR 4.6 should be amended to allow use of depositions for purposes of discovery and/or potential impeachment, giving the trial judge broader discretion to allow or disallow a deposition based on the particular circumstances of each case. These changes would provide some flexibility for taking depositions in a less costly fashion than is presently the case.

At this time, there is no request to amend the comparable rule for courts of limited jurisdiction.

1 See generally Rules of Criminal Procedure - Florida (Rule 3.220 (h)(1), Massachusetts (Rule 35), North Dakota (Rule 15), New Hampshire (Rule 13); Texas Code of Criminal Procedure (Article 39.02).


(a) When Taken. Upon a showing (1) If the court finds that a prospective witness may be unable to attend or prevented from attending a trial or hearing or (2) if a witness refuses to discuss the case with either counsel and that his the testimony of the witness is material and that it is necessary or (3) if there is good cause shown to take his the deposition of a witness in order to prevent a failure of justice, the court may order a deposition. The court at any time after the filing of an indictment or information arraignment may upon motion of a party and notice to the parties order that his the testimony of the witness be taken by deposition and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place. The parties may agree or the court may order that the deposition be made by videotape, audiotape or digital recording in lieu of or in addition to a stenographic record. If the court orders a videotape, audiotape or digital recording, the party who sought the deposition shall provide a copy of the recording to all other parties and to the witness at the moving party's expense. If any party prepares a transcript of the recording, a copy of the transcript shall be provided to all other parties and to the witness at the transcribing party's expense. A witness who is sought to be deposed, or a party, may seek a protective order per CR 26(c); a party to the criminal case may seek a protective order at the request of the witness.

[No change to (b) - (e)]

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 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