Proposed Rules Archives

• Proposed Changes to CrR 4.11 - Interviews of Witnesses (in Word Format)
• Comments Received for CrR 4.11 - Interviews of Witnesses

GR 9 Cover Sheet
Suggested Change to Superior Court Criminal Rules (CrR)
New Rule 4.11 concerning Recording of Witness Interviews
together with companion amendment to CrR 4.6

Submitted by the Board of Governors of the Washington State Bar Association

Purpose: This suggested new rule clarifies that a lawyer in a criminal case, or the lawyer’s employees or agents, may record witness interviews "by openly using an audiotape or other means of verbatim recording, including a court reporter." Recording will facilitate trial preparation in criminal cases, in which depositions either are not allowed or are not a financially viable option in many circumstances. In addition, a recording or transcript provides a more accurate record of witness statements for use at trial if the witness’s testimony differs from the prior recorded statement. This should ameliorate problems and inefficiencies encountered in proving prior inconsistent statements in criminal cases, which is typically accomplished by calling an investigator or other person who took notes, who is then subject to cross examination regarding his or her integrity and/or the accuracy of the notes.

Although the statement of any witness may be recorded, subject to the criteria of the rule, five days’ notice must be provided to the interviewee and opposing counsel in order to take the statement of a complaining witness and/or alleged victim. The notice must state the method of recording. Objections to taking a statement or the protocol for recording are subject to oversight of a superior court judge pursuant to the protective order provisions of CrR 4.7(h).

The rule also prescribes information that must be provided on the tape/recording at the commencement of the interview. It also provides that the person interviewed and all parties are entitled to copies of the interview. It also provides that the person interviewed and all parties are entitled to copies of the interview. Tapes or copies of the interview transcripts must not be disseminated by any party except as reasonably necessary to conduct a party’s case.

The Board of Governors has considered a number of earlier iterations of this suggested rule. The rule has undergone numerous revisions to address concerns of interested groups, including victims’ advocates, criminal defense lawyers, prosecutors, and judges. These proposed revisions included specification that the recording must be conducted "openly" to prevent surreptitious recording, addition of a notice period to allow objection to statements by complaining witnesses and/or victims, addition of paragraph (c) providing a protocol for beginning the recording, and a prohibition on dissemination of transcripts and tapes.

Most recently, the Supreme Court referred the suggested rule back to the WSBA Court Rules and Procedures Committee to address concerns raised by the Superior Court Judges’ Association (SCJA). The Committee appointed a subcommittee to evaluate these issues, obtain input from stakeholders and interested persons, and to coordinate with the SCJA. As a result of these efforts, the subcommittee recommended two additional amendments to the suggested rule. In order to clarify the persons who may take statements, the phrase "or counsel’s designee" was deleted and replaced with "an employee or agent of counsel’s office." In addition, two sentences were added to paragraph (a) specifying that witness interviews are subject to the court’s regulation of discovery under CrR 4.7(h) and that disputes regarding the interview protocol shall be resolved under CrR 4.6(b) and (c) and CrR 4.7(h). In making these recommended revisions to the suggested rule, the Committee again opted not to "carve out" an exception for a specific class of individuals (crime victims or children); instead, concerns about the circumstances of an individual interviewee are subject to judicial oversight under the provisions of CrR 4.7 relating to protective orders.

Consistent with the previous version of this rule, if the witness does not wish to give a recorded statement, the interviewer has the choice to proceed with the interview without a verbatim recording or to seek a court-ordered deposition under CrR 4.6.