SUPERIOR COURT CRIMINAL RULES (CrR)
TABLE OF RULES
1. SCOPE, PURPOSE AND CONSTRUCTION
Rule
1.1 Scope
1.2 Purpose and Construction
1.3 Effect
1.4 Prosecuting Attorney Definition
1.5 Style and Form
2. PROCEDURES PRIOR TO ARREST AND OTHER
SPECIAL PROCEEDINGS
2.1 The Indictment and the Information
2.2 Warrant of Arrest and Summons
2.3 Search and Seizure
3. RIGHTS OF DEFENDANTS
3.1 Right to and Assignment of Lawyer
3.2 Release of Accused
3.2A Repealed
3.2B Repealed
3.2.1 Procedure Following Warrantless Arrest - Preliminary Appearance
3.3 Time for Trial
3.4 Presence of the Defendant
3.5 Confession Procedure
3.6 Suppression Hearings--Duty of Court
4. PROCEDURES PRIOR TO TRIAL
4.1 Arraignment
4.2 Pleas
4.2 Statement of Defendant on Plea of Guilty to Non-Sex Offense
4.2 Statement of Defendant on Plea of Guilty to Sex Offense
4.2 "Offender Registration" Attachment: Sex Offense, or Kidnapping
Offense Involving a Minor as Defined in RCW 9A.44.130
4.3 Joinder of Offenses and Defendants
4.3.1 Consolidation For Trial
4.4 Severance of Offenses and Defendants
4.5 Omnibus Hearing
4.6 Depositions
4.7 Discovery
4.8 Subpoenas
4.9 Pretrial Conference (Rescinded)
4.10 Material Witness
5. VENUE
5.1 Commencement of Actions
5.2 Change of Venue
6. PROCEDURES AT TRIAL
6.1 Trial by Jury or by the Court
6.2 Jurors' Orientation
6.3 Selecting the Jury
6.4 Challenges
6.5 Alternate Jurors
6.6 Jurors' Oath
6.7 Custody of Jury
6.8 Notetaking by Jurors
6.9 View of Premises by Jury
6.10 Discharge of Jury
6.11 Judge--Disability
6.12 Witnesses
6.13 Testimony in Lieu of Witnesses
6.14 Immunity
6.15 Instructions and Argument
6.16 Verdicts and Findings
7. PROCEDURES FOLLOWING CONVICTION
7.1 Procedures Before Sentencing
7.2 Sentencing
7.3 Judgment
7.4 Arrest of Judgment
7.5 New Trial
7.6 Probation
7.7 Post-Conviction Relief (Rescinded)
7.8 Relief From Judgment or Order
8. MISCELLANEOUS
8.1 Time
8.2 Motions
8.3 Dismissal
8.4 Service, Filing, and Signing of Papers
8.5 Calendars
8.6 Exceptions Unnecessary
8.7 Objections
8.8 Discharge
8.9 Change of Judge
RULE 1.1
SCOPE
These rules govern the procedure in the courts of general jurisdiction
of the State of Washington in all criminal proceedings and supersede all
procedural statutes and rules that may be in conflict and shall be
interpreted and supplemented in light of the common law and the decisional
law of this state. These rules shall not be construed to affect or derogate
from the constitutional rights of any defendant.
RULE 1.2
PURPOSE AND CONSTRUCTION
These rules are intended to provide for the just determination of every
criminal proceeding. They shall be construed to secure simplicity in
procedure, fairness in administration, effective justice, and the
elimination of unjustifiable expense and delay.
RULE 1.3
EFFECT
Except as otherwise provided elsewhere in these rules, on their
effective date:
(a) Any acts done before the effective date in any proceedings then
pending or any action taken in any proceeding pending under rules of
procedure in effect prior to the effective date of these rules and any
constitutional right are not impaired by these rules.
(b) These rules also apply to any proceedings in court then pending or
thereafter commenced regardless of when the proceedings were commenced,
except to the extent that in the opinion of the court, the former procedure
should continue to be made applicable in a particular case in the interest
of justice or because of infeasibility of application of the procedures of
these rules.
RULE 1.4
PROSECUTING ATTORNEY DEFINITION
Whenever used in these rules, prosecuting attorney shall include deputy
prosecuting attorneys, or such other person as may be designated by
statute.
RULE 1.5
STYLE AND FORM
[Reserved. See GR 14.]
RULE 2.1
THE INDICTMENT AND THE INFORMATION
(a) Use of Indictment or Information. The initial pleading by the State
shall be an indictment or an information in all criminal proceedings filed
by the prosecuting attorney.
(1) Nature. The indictment or the information shall be a plain, concise
and definite written statement of the essential facts constituting the
offense charged. It shall be signed by the prosecuting attorney.
Allegations made in one count may be incorporated by reference in another
count. It may be alleged that the means by which the defendant committed
the offense are unknown or that the defendant committed it by one or more
specified means. The indictment or information shall state for each count
the official or customary citation of the statute, rule, regulation or
other provision of law which the defendant is alleged therein to have
violated. Error in the citation or its omission shall not be ground for
dismissal of the indictment or information or for reversal of a conviction
if the error or omission did not mislead the defendant to the defendant's
prejudice.
(2) Contents. The indictment or the information shall contain or have
attached to it the following information when filed with the court:
(i) the name, address, date of birth, and sex of the defendant;
(ii) all known personal identification numbers for the defendant,
including the Washington driver's operating license (DOL) number, the state
criminal identification (SID) number, the state criminal process control
number (PCN), the JUVIS control number, and the Washington Department of
Corrections (DOC) number.
(b) Surplusage. The court on motion of the defendant may strike
surplusage from the indictment or information.
(c) Bill of Particulars. The court may direct the filing of a bill of
particulars. A motion for a bill of particulars may be made before
arraignment or within 10 days after arraignment or at such later time as
the court may permit.
(d) Amendment. The court may permit any information or bill of
particulars to be amended at any time before verdict or finding if
substantial rights of the defendant are not prejudiced.
(e) Defendant's Criminal History. Upon the filing of an indictment or
information charging a felony, the prosecuting attorney shall request a
copy of the defendant's criminal history, as defined in RCW 9.94A.030, from
the Washington State Patrol Identification and Criminal History Section.
Comment
Supersedes RCW 10.37.020, .025, .026, .035, .180; RCW 10.40.080; RCW
10.46.170. The purpose of section (f) is to ensure that the defendant's
criminal history is available when and if the court is required to
determine the validity of a plea agreement.
RULE CrR 2.2
WARRANT OF ARREST AND SUMMONS
(a) Warrant of Arrest.
(1) Generally. If an indictment is found or an information is filed,
the court may direct the clerk to issue a warrant for the arrest of the defendant.
(2) Probable Cause. Before ruling on a request for a warrant the court
may require the complainant to appear personally and may examine under oath
the complainant and any witnesses the complainant may produce. A warrant of
arrest may not issue unless the court determines that there is probable
cause to believe that the defendant committed the offense charged. The
court shall determine probable cause based on an affidavit, a document as
provided in RCW 9A.72.085 or any law amendatory thereto, or sworn testimony
establishing the grounds for issuing the warrant. Sworn testimony shall be
recorded electronically or stenographically. The evidence shall be
preserved and shall be subject to constitutional limitations for probable
cause determinations and may be hearsay in whole or in part.
(3) Ascertaining Defendant's Current Address.
(i) Search for address. The court shall not issue a warrant unless it
determines that the complainant has attempted to ascertain the defendant's
current address by searching the following: (A) the District Court
Information System database (DISCIS), (B) the driver's license and
identicard database maintained by the Department of Licenses; and (C) the
database maintained by the Department of Corrections listing persons
incarcerated and under supervision. The court in its discretion may
require that other databases be searched.
(ii) Exemptions from Address Search. The search required by
subdivision (i) shall not be required if (A) the defendant has already
appeared in court after filing of the same case, (B) the defendant is known
to be in custody, or (C) the defendant's name is unknown.
(iii) Effect of Erroneous Issuance. If a warrant is erroneously
issued in violation of this subsection (a)(3), that error shall not affect
the validity of the warrant.
(b) Issuance of Summons in Lieu of Warrant.
(1) Generally. If an indictment is found or an information is filed,
the court may direct the clerk to issue a summons commanding the defendant
to appear before the court at a specified time and place.
(2) When Summons Must Issue. The court shall direct the clerk to issue
a summons instead of a warrant unless it finds reasonable cause to believe
that the defendant (i) will not appear in response to a summons, (ii) will
commit a violent offense, (iii) will interfere with witnesses or the
administration of justice, or (iv) is in custody.
(3) Summons. A summons shall be in writing and in the name of the State
of Washington, shall be signed by the clerk with the title of the office,
and shall state the date when issued and the county where issued. It shall
state the name of the defendant and shall summon the defendant to appear
before the court at a stated time and place.
(4) Failure To Appear on Summons. If a person fails to appear in
response to a summons, or if service is not effected within a reasonable
time, a warrant for arrest may issue.
(c) Requisites of a Warrant. The warrant shall be in writing and in the
name of the State of Washington, shall be signed by the clerk with the
title of the office, and shall state the date when issued and the county
where issued. It shall specify the name of the defendant, or if the
defendant's name is unknown, any name or description by which the defendant
can be identified with reasonable certainty. The warrant shall specify the
offense charged against the defendant and that the court has found that
probable cause exists to believe the defendant has committed the offense
charged and shall command that the defendant be arrested and brought
forthwith before the court issuing the warrant. If the offense is bailable,
the judge shall set forth in the order for the warrant, bail, or other
conditions of release.
(d) Execution; Service.
(1) Execution of Warrant. The warrant shall be directed to all peace
officers in the state and shall be executed only by a peace officer.
(2) Service of Summons. The summons may be served any place within the
state. It shall be served by a peace officer who shall deliver a copy of
the same to the defendant personally, or it may be served by mailing the
same, postage prepaid, to the defendant at the defendant's address.
(e) Return. The officer executing a warrant shall make return to the
court before whom the defendant is brought pursuant to these rules. At the
request of the prosecuting attorney any unexecuted warrant shall be
returned to the issuing court to be canceled. The person to whom a summons
has been delivered for service shall, on or before the return date, file a
return with the court before which the summons is returnable. For
reasonable cause, the court may order that the warrant be returned to it.
(f) Defective Warrant or Summons.
(1) Amendment. No person arrested under a warrant or appearing in
response to a summons shall be discharged from custody or dismissed because
of any irregularity in the warrant or summons, but the warrant or summons
may be amended so as to remedy any such irregularity.
(2) Issuance of New Warrant or Summons. If during the preliminary
examination of any person arrested under a warrant or appearing in response
to a summons, it appears that the warrant or summons does not properly name
or describe the defendant or the offense with which the defendant is
charged, or that although not guilty of the offense specified in the
warrant or summons, there is reasonable ground to believe that the
defendant is guilty of some other offense, the judge shall not discharge or
dismiss the defendant but may allow a new indictment or information to be
filed and shall thereupon issue a new warrant or summons.
(g) Failure to Issue Warrant---Dismissal. Upon five days' notice to
the prosecuting attorney, the court shall dismiss a charge without
prejudice if (i) 90 days have elapsed since the indictment or information
was filed and (ii) on the date that the order of dismissal is entered, no
warrant has been issued and the defendant has not appeared in court.
[Amended effective September 1, 1983; September 1, 1986; September 1, 1995;
September 1, 2003; September 1, 2006.]
Comment
Supersedes RCW 10.31.010, .020.
RULE 2.3
SEARCH AND SEIZURE
(a) Authority To Issue Warrant. A search warrant authorized by this
rule may be issued by the court upon request of a peace officer or a
prosecuting attorney.
(b) Property or Persons Which May Be Seized With a Warrant. A warrant
may be issued under this rule to search for and seize any (1) evidence of a
crime; or (2) contraband, the fruits of crime, or things otherwise
criminally possessed; or (3) weapons or other things by means of which a
crime has been committed or reasonably appears about to be committed; or
(4) person for whose arrest there is probable cause, or who is unlawfully
restrained.
(c) Issuance and Contents. A search warrant may be issued only if the
court determines there is probable cause for the issuance of a warrant.
There must be an affidavit, a document as provided in RCW 9A.72.085 or any
law amendatory thereto, or sworn testimony establishing the grounds for
issuing the warrant. The sworn testimony may be an electronically recorded
telephonic statement. The recording or a duplication of the recording shall
be a part of the court record and shall be transcribed if requested by a
party if there is a challenge to the validity of the warrant or if ordered
by the court. The evidence in support of the finding of probable cause
shall be preserved and shall be subject to constitutional limitations for
such determinations and may be hearsay in whole or in part. If the court
finds that probable cause for the issuance of a warrant exists, it shall
issue a warrant or direct an individual whom it authorizes for such purpose
to affix the court's signature to a warrant identifying the property or
person and naming or describing the person, place or thing to be searched.
The court shall record a summary of any additional evidence on which it
relies. The warrant shall be directed to any peace officer. It shall
command the officer to search, within a specified period of time not to
exceed 10 days, the person, place, or thing named for the property or
person specified. It shall designate to whom it shall be returned. The
warrant may be served at any time.
(d) Execution and Return With Inventory. The peace officer taking
property under the warrant shall give to the person from whom or from whose
premises the property is taken a copy of the warrant and a receipt for the
property taken. If no such person is present, the officer may post a copy
of the search warrant and receipt. The return shall be made promptly and
shall be accompanied by a written inventory of any property taken. The
inventory shall be made in the presence of the person from whose possession
or premises the property is taken, or in the presence of at least one
person other than the officer. The court shall upon request deliver a copy
of the inventory to the person from whom or from whose premises the
property was taken and to the applicant for the warrant.
(e) Motion for Return of Property. A person aggrieved by an unlawful
search and seizure may move the court for the return of the property on the
ground that the property was illegally seized and that the person is
lawfully entitled to possession thereof. If the motion is granted the
property shall be returned. If a motion for return of property is made or
comes on for hearing after an indictment or information is filed in the
court in which the motion is pending, it shall be treated as a motion to
suppress.
(f) Searches of Media.
(1) Scope. If an application for a search warrant is governed by RCW
10.79.015(3) or 42 U.S.C. sections 2000aa et seq., this section controls
the procedure for obtaining the evidence.
(2) Subpoena Duces Tecum. Except as provided in subsection (3), if the
court determines that the application satisfies the requirements for
issuance of a warrant, as provided in section (c) of this rule, the court
shall issue a subpoena duces tecum in accordance with CR 45(b).
(3) Warrant. If the court determines that the application satisfies the
requirements for issuance of a warrant and that RCW 10.79.015(3) and 42
U.S.C. sections 2000aa et seq. permit issuance of a search warrant rather
than a subpoena duces tecum, the court may issue a warrant.
Comment
Supersedes RCW 10.79.010, .030.
RULE CrR 3.1
RIGHT TO AND ASSIGNMENT OF LAWYER
(a) Types of Proceedings. The right to a lawyer shall extend to all
criminal proceedings for offenses punishable by loss of liberty regardless of
their denomination as felonies, misdemeanors, or otherwise.
(b) Stage of Proceedings.
(1) The right to a lawyer shall accrue as soon as feasible after the
defendant is taken into custody, appears before a committing magistrate, or is
formally charged, whichever occurs earliest.
(2) A lawyer shall be provided at every stage of the proceedings, including
sentencing, appeal, and post-conviction review. A lawyer initially appointed
shall continue to represent the defendant through all stages of the proceedings
unless a new appointment is made by the court following withdrawal of the
original lawyer pursuant to section (e) because geographical considerations or
other factors make it necessary.
(c) Explaining the Availability of a Lawyer.
(1) When a person is taken into custody that person shall immediately be
advised of the right to a lawyer. Such advice shall be made in words easily
understood, and it shall be stated expressly that a person who is unable to pay
a lawyer is entitled to have one provided without charge.
(2) At the earliest opportunity a person in custody who desires a lawyer
shall be provided access to a telephone, the telephone number of the public
defender or official responsible for assigning a lawyer, and any other means
necessary to place the person in communication with a lawyer.
(d) Assignment of Lawyer.
(1) Unless waived, a lawyer shall be provided to any person who is
financially unable to obtain one without causing substantial hardship to the
person or to the person's family. A lawyer shall not be denied to any person
merely because the person's friends or relatives have resources adequate to
retain a lawyer or because the person has posted or is capable of posting bond.
(2) The ability to pay part of the cost of a lawyer shall not preclude
assignment. The assignment of a lawyer may be conditioned upon part payment
pursuant to an established method of collection.
(3) Information given by a person to assist in the determination of whether
the person is financially able to obtain a lawyer shall be under oath and shall
not be available for use by the prosecution in the pending case in chief.
(4) Before appointing a lawyer for the indigent person or at the first
appearance of the lawyer in the case, the court shall require the lawyer to
certify to the court that he or she complies with the applicable Standards for
Indigent Defense Services to be approved by the Supreme Court.
(e) Withdrawal of Lawyer. Whenever a criminal cause has been set for trial,
no lawyer shall be allowed to withdraw from said cause, except upon written
consent of the court, for good and sufficient reason shown.
(f) Services Other Than a Lawyer.
(1) A lawyer for a defendant who is financially unable to obtain
investigative, expert or other services necessary to an adequate defense in the
case may request them by a motion to the court.
(2) Upon finding the services are necessary and that the defendant is
financially unable to obtain them, the court, or a person or agency to which
the administration of the program may have been delegated by local court rule,
shall authorize the services. The motion may be made ex parte and, 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. The court, in the
interest of justice and on a finding that timely procurement of necessary
services could not await prior authorization, shall ratify such services after
they have been obtained.
(3) Reasonable compensation for the services shall be determined and payment
directed to the organization or person who rendered them upon the filing of a
claim for compensation supported by affidavit specifying the time expended and the
services and expenses incurred on behalf of the defendant, and the compensation
received in the same case or for the same services from any other source.
[Amended effective September 1, 1986; September 1, 1995; June 30, 2012.]
Comment
Supersedes RCW 10.01.110; RCW 10.40.030; RCW 10.46.050.
3.1 STDS STANDARDS FOR INDIGENT DEFENSE (IN WORD FORMAT) The contents of this item are only available on-line.
CrR 3.2
RELEASE OF ACCUSED
If the court does not find, or a court has not previously found,
probable cause, the accused shall be released without conditions.
(a) Presumption of Release in Noncapital Cases.
Any person, other than a person charged with a capital
offense, shall at the preliminary appearance or reappearance
pursuant to rule 3.2.1 or CrRLJ 3.2.1 be ordered released on
the accused's personal recognizance pending trial unless:
(1) the court determines that such recognizance will not
reasonably assure the accused's appearance, when
required, or
(2) there is shown a likely danger that the accused:
(a) will commit a violent crime, or
(b) will seek to intimidate witnesses, or otherwise unlawfully interfere
with the administration of justice.
For the purpose of this rule, "violent crimes" are not limited to
crimes defined as violent offenses in RCW 9.94A.030.
In making the determination herein, the court shall, on the
available information, consider the relevant facts including, but
not limited to, those in subsections (c) and (e) of this rule.
(b) Showing of Likely Failure to Appear-Least Restrictive
Conditions of Release. If the court determines that the accused
is not likely to appear if released on personal recognizance, the
court shall impose the least restrictive of the following
conditions that will reasonably assure that the accused will be
present for later hearings, or, if no single condition gives that
assurance, any combination of the following conditions:
(1) Place the accused in the custody of a designated person
or organization agreeing to supervise the accused;
(2) Place restrictions on the travel, association, or place
of abode of the accused during the period of release;
(3) Require the execution of an unsecured bond in a specified amount;
(4) Require the execution of a bond in a specified amount
and the deposit in the registry of the court in cash or other
security as directed, of a sum not to exceed 10 percent of the
amount of the bond, such deposit to be returned upon the
performance of the conditions of release or forfeited for
violation of any condition of release;
(5) Require the execution of a bond with sufficient solvent
sureties, or the deposit of cash in lieu thereof;
(6) Require the accused to return to custody during
specified hours or to be placed on electronic monitoring, if available; or
(7) Impose any condition other than detention deemed
reasonably necessary to assure appearance as required.
If the court determines that the accused must post a secured or
unsecured bond, the court shall consider, on the available
information, the accused's financial resources for the purposes
of setting a bond that will reasonably assure the accused's appearance.
(c) Relevant Factors-Future Appearance. In determining which
conditions of release will reasonably assure the accused's
appearance, the court shall, on the available information,
consider the relevant facts including but not limited to:
(1) The accused's history of response to legal process,
particularly court orders to personally appear;
(2) The accused's employment status and history, enrollment
in an educational institution or training program,
participation in a counseling or treatment program,
performance of volunteer work in the community,
participation in school or cultural activities or receipt of
financial assistance from the government;
(3) The accused's family ties and relationships;
(4) The accused's reputation, character and mental condition;
(5) The length of the accused's residence in the community;
(6) The accused's criminal record;
(7) The willingness of responsible members of the community
to vouch for the accused's reliability and assist the
accused in complying with conditions of release;
(8) The nature of the charge, if relevant to the risk of nonappearance;
(9) Any other factors indicating the accused's ties to the community.
(d) Showing of Substantial Danger-Conditions of Release.
Upon a showing that there exists a substantial danger that the
accused will commit a violent crime or that the accused will seek
to intimidate witnesses, or otherwise unlawfully interfere with
the administration of justice, the court may impose one or more
of the following nonexclusive conditions:
(1) Prohibit the accused from approaching or communicating
in any manner with particular persons or classes of persons;
(2) Prohibit the accused from going to certain geographical areas or premises;
(3) Prohibit the accused from possessing any dangerous
weapons or firearms, or engaging in certain described activities
or possessing or consuming any intoxicating liquors or drugs not
prescribed to the accused;
(4) Require the accused to report regularly to and remain
under the supervision of an officer of the court or other person or agency;
(5) Prohibit the accused from committing any violations of criminal law;
(6) Require the accused to post a secured or unsecured bond
or deposit cash in lieu thereof, conditioned on compliance with
all conditions of release. This condition may be imposed only if
no less restrictive condition or combination of conditions would
reasonably assure the safety of the community. If the court
determines under this section that the accused must post a
secured or unsecured bond, the court shall consider, on the
available information, the accused's financial resources for the
purposes of setting a bond that will reasonably assure the safety
of the community and prevent the defendant from intimidating
witnesses or otherwise unlawfully interfering with the
administration of justice.
(7) Place the accused in the custody of a designated person
or organization agreeing to supervise the accused;
(8) Place restrictions on the travel, association, or place
of abode of the accused during the period of release;
(9) Require the accused to return to custody during
specified hours or to be placed on electronic monitoring, if available; or
(10) Impose any condition other than detention to assure
noninterference with the administration of justice and reduce
danger to others or the community.
(e) Relevant Factors-Showing of Substantial Danger. In
determining which conditions of release will reasonably assure
the accused's noninterference with the administration of justice,
and reduce danger to others or the community, the court shall, on
the available information, consider the relevant facts including
but not limited to:
(1) The accused's criminal record;
(2) The willingness of responsible members of the community to
vouch for the accused's reliability and assist the accused in
complying with conditions of release;
(3) The nature of the charge;
(4) The accused's reputation, character and mental condition;
(5) The accused's past record of threats to victims or witnesses
or interference with witnesses or the administration of justice;
(6) Whether or not there is evidence of present threats or
intimidation directed to witnesses;
(7) The accused's past record of committing offenses while on
pretrial release, probation or parole; and
(8) The accused's past record of use of or threatened use of
deadly weapons or firearms, especially to victim's or witnesses.
(f) Delay of Release. The court may delay release of a
person in the following circumstances:
(1) If the person is intoxicated and release will
jeopardize the persons safety or that of others, the court
may delay release of the person or have the person
transferred to the custody and care of a treatment center.
(2) If the persons mental condition is such that the
court believes the person should be interviewed by a mental
health professional for possible commitment to a mental
treatment facility pursuant to RCW 71.05, the court may
delay release of the person.
(3) Unless other grounds exist for continued detention,
a person detained pursuant to this section must be released
from detention not later than 24 hours after the preliminary appearance.
(g) Release in Capital Cases. Any person charged with a
capital offense shall not be released in accordance with this
rule unless the court finds that release on conditions will
reasonably assure that the accused will appear for later
hearings, will not significantly interfere with the
administration of justice and will not pose a substantial danger
to another or the community. If a risk of flight, interference or
danger is believed to exist, the person may be ordered detained without bail.
(h) Release After Finding or Plea of Guilty. After a person
has been found or pleaded guilty, and subject to RCW 9.95.062,
9.95.064, 10.64.025, and 10.64.027, the court may revoke, modify,
or suspend the terms of release and/or bail previously ordered.
(i) Order for Release. A court authorizing the release of
the accused under this rule shall issue an appropriate order
containing a statement of the conditions imposed, if any, shall
inform the accused of the penalties applicable to violations of
the conditions imposed, if any, shall inform the accused of the
penalties applicable to violations of the conditions of the
accused's release and shall advise the accused that a warrant for
the accused's arrest may be issued upon any such violation.
(j) Review of Conditions.
(1) At any time after the preliminary appearance, an
accused who is being detained due to failure to post bail
may move for reconsideration of bail. In connection with
this motion, both parties may present information by proffer
or otherwise. If deemed necessary for a fair determination
of the issue, the court may direct the taking of additional testimony.
(2) A hearing on the motion shall be held within a
reasonable time. An electronic or stenographic record of the
hearing shall be made. Following the hearing, the court
shall promptly enter an order setting out the conditions of
release in accordance with section (i). If a bail
requirement is imposed or maintained, the court shall set
out its reasons on the record or in writing.
(k) Amendment or Revocation of Order.
(1) The court ordering the release of an accused on any
condition specified in this rule may at any time on change
of circumstances, new information or showing of good cause
amend its order to impose additional or different conditions for release.
(2) Upon a showing that the accused has willfully
violated a condition of release, the court may revoke
release and may order forfeiture of any bond. Before
entering an order revoking release or forfeiting bail, the
court shall hold a hearing in accordance with section (j).
Release may be revoked only if the violation is proved by
clear and convincing evidence.
(l) Arrest for Violation of Conditions.
(1) Arrest With Warrant. Upon the court's own motion or
a verified application by the prosecuting attorney alleging
with specificity that an accused has willfully violated a
condition of the accused's release, a court shall order the
accused to appear for immediate hearing or issue a warrant
directing the arrest of the accused for immediate hearing
for reconsideration of conditions of release pursuant to
section (k).
(2) Arrest Without Warrant. A law enforcement officer
having probable cause to believe that an accused released
pending trial for a felony is about to leave the state or
has violated a condition of such release under circumstances
rendering the securing of a warrant impracticable may arrest
the accused and take him forthwith before the court for
reconsideration of conditions of release pursuant to section (k).
(m) Evidence. Information stated in, or offered in
connection with, any order entered pursuant to this rule need not
conform to the rules pertaining to the admissibility of evidence
in a court of law.
(n) Forfeiture. Nothing contained in this rule shall be
construed to prevent the disposition of any case or class of
cases by forfeiture of collateral security where such disposition
is authorized by the court.
(o) Accused Released on Recognizance or Bail--Absence--
Forfeiture. If the accused has been released on the accused's own
recognizance, on bail, or has deposited money instead thereof,
and does not appear when the accused's personal appearance is
necessary or violated conditions of release, the court, in
addition to the forfeiture of the recognizance, or of the money
deposited, may direct the clerk to issue a bench warrant for the
accused's arrest.
Comment
Supersedes RCW 10.16.190; RCW 10.19.010, .020, .025, .050, .070, .080; RCW
10.40.130; RCW 10.46.170; RCW 10.64.035.
[Adopted amended effective September 1, 2002.]
CrR 3.2.1
PROCEDURE FOLLOWING WARRANTLESS ARREST -
PRELIMINARY APPEARANCE
(a) Probable Cause Determination. A person who is arrested shall
have a judicial determination of probable cause no later than 48
hours following the person’s arrest, unless probable cause has
been determined prior to such arrest.
(b) How Determined. The court shall determine probable cause on
evidence presented by a peace officer or prosecuting authority in
the same manner as provided for a warrant of arrest in rule
2.2(a). The evidence shall be preserved and may consist of an
electronically recorded telephonic statement. If the court finds
that release without bail should be denied or that conditions
should attach to the release on personal recognizance, other than
the promise to appear for trial, the court shall proceed to
determine whether probable cause exists to believe that the
accused committed the offense charged, unless this determination
has previously been made by a court. Before making the
determination, the court may consider an affidavit, a document as
provided in RCW 9A.72.085 or any law amendatory thereto, or sworn
testimony, and further may examine under oath the affiant and any
witnesses the affiant may produce. Sworn testimony shall be
electronically or stenographically recorded. The evidence shall
be preserved and shall be subject to constitutional limitations
for probable cause determinations, and may be hearsay in whole or
in part.
(c) Court Days. For the purpose of section (a) Saturday, Sunday
and holidays may be considered judicial days.
(d) Preliminary Appearance.
(1) Adult. Unless a defendant has appeared or will appear before
a court of limited jurisdiction for a preliminary appearance
pursuant to CrRLJ 3.2.1(a), any defendant whether detained in jail
or subjected to court-authorized conditions of release shall be
brought before the superior court as soon as practicable after the
detention is commenced, the conditions of release are imposed or
the order is entered, but in any event before the close of
business on the next court day. A person is not subject to
conditions of release if the person has been served with a summons
and the only obligation is to appear in court on a future date.
(2) Juveniles. Any person in whose case the juvenile court has
entered a written order declining jurisdiction, and who is
detained in custody must be taken to appear before the superior
court as soon as practicable after the juvenile court order is
entered, but in any event before the close of business on the next
court day.
(3) Unavailability. If an accused is unavailable for preliminary
appearance because of physical or mental disability, the court
may, for good cause shown and recited in a written
order, enlarge the time prior to preliminary appearance.
(e) Procedure at Preliminary Appearance.
(1) At the preliminary appearance, the court shall provide for a
lawyer pursuant to rule 3.1 and for pretrial release pursuant to
rule 3.2, and the court shall orally inform the accused:
(i) of the nature of the charge against the accused;
(ii) of the right to be assisted by a lawyer at every stage of the
proceedings; and
(iii) of the right to remain silent, and that anything the accused
says may be used against him or her.
(2) If the court finds that release should be denied or that
conditions should attach to release on personal recognizance,
other than the promise to appear at subsequent hearings, the court
shall proceed to determine whether probable cause exists to
believe that the accused committed the offense charges, unless
this determination has previously been made by a court. Before
making the determination, the court may consider affidavits filed
or sworn testimony and further may examine under oath the
affiant and any witnesses he or she may produce. Subject to
constitutional limitations, the findings of probable cause may be
based on evidence which is hearsay in whole or in part.
(f) Time Limits.
(1) Unless an information or indictment is filed or the affected
person consents in writing or on the record in open court, an
accused, shall not be detained in jail or subjected to conditions
of release for more than 72 hours after the defendant’s detention
in jail or release on conditions, whichever occurs first.
Computation of the 72 hour period shall not include any part of
Saturdays, Sundays or holidays.
(2) If no information or indictment has been filed at the time of
the preliminary appearance, and the accused has not otherwise
consented, the court shall either:
(i) order in writing that the accused be released from jail or
exonerated from the conditions of release at a time certain which
is within the period described in subsection (f)(1); or
(ii) set a time at which the accused shall reappear before the
court. The time set for reappearance must also be within the
period described in subsection (f)(1). If no information or
indictment has been filed by the time set for release or
reappearance, the accused shall be immediately released from jail
or deemed exonerated from all conditions of release.
[Former Rule 3.2A and former Rule 3.2B adopted effective July 1,
1992; redesignated as Rule 3.2.1 adopted effective April 3,
2001; amended effective September 1, 2002.]
RULE 3.2A
[Adopted effective July 1, 1992; amended effective September 1, 1995;
repealed effective April 3, 2001.]
RULE 3.2B
[Former Rule 3.2A adopted effective August 1, 1980; redesignated as
Rule 3.2B effective July 1, 1992; repealed effective April 3, 2001.]
RULE CrR 3.3
TIME FOR TRIAL
(a) General Provisions.
(1) Responsibility of Court. It shall be the responsibility
of the court to ensure a trial in accordance with this rule to
each person charged with a crime.
(2) Precedence Over Civil Cases. Criminal trials shall take
precedence over civil trials.
(3) Definitions. For purposes of this rule:
(i) "Pending charge" means the charge for which the
allowable time for trial is being computed.
(ii) "Related charge" means a charge based on the same
conduct as the pending charge that is ultimately file in the
superior court.
(iii) "Appearance" means the defendant's physical
presence in the adult division of the superior court where the
pending charge was filed. Such presence constitutes appearance
only if (A) the prosecutor was notified of the presence and (B)
the presence is contemporaneously noted on the record under the
cause number of the pending charge.
(iv) "Arraignment" means the date determined under CrR 4.1(b).
(v) "Detained in jail" means held in the custody of a
correctional facility pursuant to the pending charge. Such
detention excluded any period in which a defendant is on
electronic home monitoring, is being held in custody on an
unrelated charge or hold, or is serving a sentence of confinement.
(4) Construction. The allowable time for trial shall be
computed in accordance with this rule. If a trial is timely
under the language of this rule, but was delayed by circumstances
not addressed in this rule or CrR 4.1, the pending charge shall
not be dismissed unless the defendant's constitutional right to a
speedy trial was violated.
(5) Related Charges. The computation of the allowable time
for trial of a pending charge shall apply equally to all related charges.
(6) Reporting of Dismissals and Untimely Trials. The court
shall report to the Administrative Office of the Courts, on a
form determined by that office, any case in which
(i) the court dismissed a charge on a determination
pursuant to section (h) that the charge had not been brought to
trial within the time limit required by this rule, or
(ii) the time limits would have been violated absent the
cure period authorized by section (g)
(b) Time for Trial.
(1) Defendant Detained in Jail. A defendant who is detained
in jail shall be brought to trial within the longer of
(i) 60 days after the commencement date specified in this rule, or
(ii) the time specified under subsection (b)(5).
(2) Defendant Not Detained in Jail. A defendant who is not
detained in jail shall be brought to trial within the longer of
(i) 90 days after the commencement date specified in this rule, or
(ii) the time specified in subsection (b)(5)
(3) Release of Defendant. If a defendant is released from
jail before the 60-day time limit has expired, the limit shall be
extended to 90 days.
(4) Return to Custody Following Release. If a defendant not
detained in jail at the time the trial date was set is
subsequently returned to custody on the same or related charge,
the 90-day limit shall continue to apply. If the defendant is
detained in jail when trial is reset following a new commencement
date, the 60-day limit shall apply.
(5) Allowable Time After Excluded Period. If any period of
time is excluded pursuant to section (e), the allowable time for
trial shall not expire earlier than 30 days after the end of that
excluded period.
(c) Commencement Date.
(1) Initial Commencement Date. The initial commencement date
shall be the date of arraignment as determined under CrR 4.1.
(2) Resetting of Commencement Date. On occurrence of one of
the following events, a new commencement date shall be
established, and the elapsed time shall be reset to zero. If
more than one of these events occurs, the commencement date shall
be the latest of the dates specified in this subsection.
(i) Waiver. The filing of a written waiver of the
defendant's rights under this rule signed by the defendant. The
new commencement date shall be the date specified in the waiver,
which shall not be earlier than the date on which the waiver was
filed. If no date is specified, the commencement date shall be
the date of the trial contemporaneously or subsequently set by the court.
(ii) Failure to Appear. The failure of the defendant to
appear for any proceeding at which the defendant's presence was
required. The new commencement date shall be the date of the
defendant's next appearance.
(iii) New Trial. The entry of an order granting a
mistrial or new trial or allowing the defendant to withdraw a
plea of guilty. The new commencement date shall be the date the
order is entered.
(iv) Appellate Review or Stay. The acceptance of review
or grant of a stay by an appellate court. The new commencement
date shall be the date of the defendant's appearance that next
follows the receipt by the clerk of the superior court of the
mandate or written order terminating review or stay.
(v) Collateral Proceeding. The entry of an order granting
a new trial pursuant to a personal restraint petition, a habeas
corpus proceeding, or a motion to vacate judgment. The new
commencement date shall be the date of the defendant's appearance
that next follows either the expiration of the time to appeal
such order or the receipt by the clerk of the superior court of
notice of action terminating the collateral proceeding, whichever comes later.
(vi) Change of Venue. The entry of an order granting a
change of venue. The new commencement date shall be the date of the order.
(vii) Disqualification of Counsel. The disqualification
of the defense attorney or prosecuting attorney. The new
commencement date shall be the date of the disqualification.
(d) Trial Settings and Notice---Objections---Loss of Right to Object.
(1) Initial Setting of Trial Date. The court shall, within
15 days of the defendant's actual arraignment in superior court
or at the omnibus hearing, set a date for trial which is within
the time limits prescribed by this rule and notify counsel for
each party of the date set. If a defendant is not represented by
counsel, the notice shall be given to the defendant and may be
mailed to the defendant's last known address. The notice shall
set forth the proper date of the defendant's arraignment and the
date set for trial.
(2) Resetting of Trial Date. When the court determines that
the trial date should be reset for any reason, including but not
limited to the applicability of a new commencement date pursuant
to subsection (c)(2) or a period of exclusion pursuant to section
(e), the court shall set a new date for trial which is within the
time limits prescribed and notify each counsel or party of the date set.
(3) Objection to Trial Setting. A party who objects to the
date set upon the ground that it is not within the time limits
prescribed by this rule must, within 10 days after the notice is
mailed or otherwise given, move that the court set a trial within
those time limits. Such motion shall be promptly noted for
hearing by the moving party in accordance with local procedures.
A party who fails, for any reason, to make such a motion shall
lose the right to object that a trial commenced on such a date is
not within the time limits prescribed by this rule.
(4) Loss of Right to Object. If a trial date is set outside
the time allowed by this rule, but the defendant lost the right
to object to that date pursuant to subsection (d)(3), that date
shall be treated as the last allowable date for trial, subject to
section (g). A later trial date shall be timely only if the
commencement date is reset pursuant to subsection (c)(2) or there
is a subsequent excluded period pursuant to section (e) and subsection (b)(5).
(e) Excluded Periods. The following periods shall be excluded
in computing the time for trial:
(1) Competency Proceedings. All proceedings relating to the
competency of a defendant to stand trial on the pending charge,
beginning on the date when the competency examination is ordered
and terminating when the court enters a written order finding the
defendant to be competent.
(2) Proceedings on Unrelated Charges. Arraignment, pre-
trial proceedings, trial, and sentencing on an unrelated charge.
(3) Continuances. Delay granted by the court pursuant to section (f).
(4) Period between Dismissal and Refiling. The time between
the dismissal of a charge and the refiling of the same or related charge.
(5) Disposition of Related Charge. The period between the
commencement of trial or the entry of a plea of guilty on one
charge and the defendant's arraignment in superior court on a related charge.
(6) Defendant Subject to foreign or Federal Custody or
Conditions. The time during which a defendant is detained in jail
or prison outside the state of Washington or in a federal jail or
prison and the time during which a defendant is subjected to
conditions of release not imposed by a court of the State of Washington.
(7) Juvenile Proceedings. All proceedings in juvenile court.
(8) Unavoidable or Unforeseen Circumstances. Unavoidable or
unforeseen circumstances affecting the time for trial beyond the
control of the court or of the parties. This exclusion also
applies to the cure period of section (g).
(9) Disqualification of Judge. A five-day period of time
commencing with the disqualification of the judge to whom the
case is assigned for trial.
(f) Continuances. Continuances or other delays may be granted as follows:
(1) Written Agreement. Upon written agreement of the
parties, which must be signed by the defendant or all defendants,
the court may continue the trial date to a specified date.
(2) Motion by the Court or a Party. On motion of the court or
a party, the court may continue the trial date to a specified
date when such continuance is required in the administration of
justice and the defendant will not be prejudiced in the
presentation of his or her defense. The motion must be made
before the time for trial has expired. The court must state on
the record or in writing the reasons for the continuance. The
bringing of such motion by or on behalf of any party waives that
party's objection to the requested delay.
(g) Cure Period. The court may continue the case beyond the
limits specified in section (b) on motion of the court or a party
made within five days after the time for trial has expired. Such
a continuance may be granted only once in the case upon a finding
on the record or in writing that the defendant will not be
substantially prejudiced in the presentation of his or her
defense. The period of delay shall be for no more than 14 days
for a defendant detained in jail, or 28 days for a defendant not
detained in jail, from the date that the continuance is granted.
The court may direct the parties to remain in attendance or be on-
call for trial assignment during the cure period.
(h) Dismissal With Prejudice. A charge not brought to trial
within the time limit determined under this rule shall be
dismissed with prejudice. The State shall provide notice of
dismissal to the victim and at the court's discretion shall allow
the victim to address the court regarding the impact of the
crime. No case shall be dismissed for time-to-trial reasons
except as expressly required by this rule, a statute, or the
state or federal constitution.
[Amended effective May 21, 1976; November 17, 1978; August 1, 1980;
September 1, 1986; November 29, 1991; November 7, 1995;
September 1, 2000; September 1, 2001; September 1, 2003.]
CrR
RULE 3.4
PRESENCE OF THE DEFENDANT
(a) When Necessary. The defendant shall be present at the
arraignment, at every stage of the trial including the empaneling of the
jury and the return of the verdict, and at the imposition of sentence,
except as otherwise provided by these rules, or as excused or excluded
by the court for good cause shown.
(b) Effect of Voluntary Absence. The defendant's voluntary absence
after the trial has commenced in his or her presence shall not prevent
continuing the trial to and including the return of the verdict. A
corporation may appear by its lawyer for all purposes. In prosecutions
for offenses punishable by fine only, the court, with the written
consent of the defendant, may permit arraignment, plea, trial and
imposition of sentence in the defendant's absence.
(c) Defendant Not Present. If in any case the defendant is not
present when his or her personal attendance is necessary, the court may
order the clerk to issue a bench warrant for the defendant's arrest,
which may be served as a warrant of arrest in other cases.
(d) Video Conference Proceedings.
(1) Authorization. Preliminary appearances held pursuant to CrR
3.2.1, arraignments held pursuant to this rule and CrR 4.1, bail
hearings held pursuant to CrR 3.2, and trial settings held pursuant to
CrR 3.3, may be conducted by video conference in which all participants
can simultaneously see, hear, and speak with each other. Such
proceedings shall be deemed held in open court and in the defendant's
presence for the purposes of any statute, court rule or policy. All
video conference hearings conducted pursuant to this rule shall be
public, and the public shall be able to simultaneously see and hear all
participants and speak as permitted by the trial court judge. Any party
may request an inperson hearing, which may in the trial court judge's
discretion be granted.
(2) Agreement. Other trial court proceedings including the entry of
a Statement of Defendant on Plea of Guilty as provided for by CrR 4.2
may be conducted by video conference only by agreement of the parties,
either in writing or on the record, and upon the approval of the trial
court judge pursuant to local court rule.
(3) Standards for Video Conference Proceedings. The judge, counsel,
all parties, and the public must be able to see and hear each other
during proceedings, and speak as permitted by the judge. Video
conference facilities must provide for confidential communications
between attorney and client and security sufficient to protect the
safety of all participants and observers. In interpreted proceedings,
the interpreter must be located next to the defendant and the proceeding
must be conducted to assure that the interpreter can hear all
participants.
[Amended effective September 1, 1995; December 28, 1999; April 3, 2001.]
RULE 3.5
CONFESSION PROCEDURE
(a) Requirement for and Time of Hearing. When a statement of the
accused is to be offered in evidence, the judge at the time of the omnibus
hearing shall hold or set the time for a hearing, if not previously held,
for the purpose of determining whether the statement is admissible. A court
reporter or a court approved electronic recording device shall record the
evidence adduced at this hearing.
(b) Duty of Court To Inform Defendant. It shall be the duty of the
court to inform the defendant that: (1) he may, but need not, testify at
the hearing on the circumstances surrounding the statement; (2) if he does
testify at the hearing, he will be subject to cross examination with
respect to the circumstances surrounding the statement and with respect to
his credibility; (3) if he does testify at the hearing, he does not by so
testifying waive his right to remain silent during the trial; and (4) if he
does testify at the hearing, neither this fact nor his testimony at the
hearing shall be mentioned to the jury unless he testifies concerning the
statement at trial.
(c) Duty of Court To Make a Record. After the hearing, the court shall
set forth in writing: (1) the undisputed facts; (2) the disputed facts; (3)
conclusions as to the disputed facts; and (4) conclusion as to whether the
statement is admissible and the reasons therefor.
(d) Rights of Defendant When Statement Is Ruled Admissible. If the
court rules that the statement is admissible, and it is offered in
evidence: (1) the defense may offer evidence or cross-examine the
witnesses, with respect to the statement without waiving an objection to
the admissibility of the statement; (2) unless the defendant testifies at
the trial concerning the statement, no reference shall be made to the fact,
if it be so, that the defendant testified at the preliminary hearing on the
admissibility of the confession; (3) if the defendant becomes a witness on
this issue, he shall be subject to cross examination to the same extent as
would any other witness; and, (4) if the defense raises the issue of
voluntariness under subsection (1) above, the jury shall be instructed that
they may give such weight and credibility to the confession in view of the
surrounding circumstances, as they see fit.
RULE 3.6
SUPPRESSION HEARINGS--DUTY OF COURT
(a) Pleadings. Motions to suppress physical, oral or identification
evidence, other than motion pursuant to rule 3.5, shall be in writing
supported by an affidavit or document setting forth the facts the moving
party anticipates will be elicited at a hearing, and a memorandum of
authorities in support of the motion. Opposing counsel may be ordered to
serve and file a memorandum of authorities in opposition to the motion. The
court shall determine whether an evidentiary hearing is required based upon
the moving papers. If the court determines that no evidentiary hearing is
required, the court shall enter a written order setting forth its reasons.
(b) Hearing. If an evidentiary hearing is conducted, at its conclusion
the court shall enter written findings of fact and conclusions of law.
Adopted 82 Wn.2d 1114 effective July 1, 1973
Amended 89 Wn.2d 1107 effective May 15, 1978
Amended 130 Wn.2d 1102 effective January 2, 1997
RULE CrR 4.1
ARRAIGNMENT
(a) Time.
(1) Defendant Detained in Jail. The defendant shall be arraigned not
later than 14 days after the date the information or indictment is filed in
the adult division of the superior court, if the defendant is (i) detained
in the jail of the county where the charges are pending or (ii) subject to
conditions of release imposed in connection with the same charges.
(2) Defendant Not Detained in Jail. The defendant shall be arraigned
not later than 14 days after that appearance which next follows the filing
of the information or indictment, if the defendant is not detained in that
jail or subject to such conditions of release. Any delay in bringing the
defendant before the court shall not affect the allowable time for
arraignment, regardless of the reason for that delay. For purposes of this
rule, "appearance" has the meaning defined in CrR 3.3(a)(3)(iii).
(b) Objection to Arraignment Date---Loss of Right to Object. A party
who objects to the date of arraignment on the ground that it is not within
the time limits prescribed by this rule must state the objection to the
court at the time of the arraignment. If the court rules that the
objection is correct, it shall establish and announce the proper date of
arraignment. That date shall constitute the arraignment date for purposes
of CrR 3.3. A party who fails to object as required shall lost the right
to object, and the arraignment date shall be conclusively established as
the date upon which the defendant was actually arraigned.
(c) Counsel. If the defendant appears without counsel, the court shall
inform the defendant of his or her right to have counsel before being
arraigned. The court shall inquire if the defendant has counsel. If the
defendant is not represented and is unable to obtain counsel, counsel shall
be assigned by the court, unless otherwise provided.
(d) Waiver of Counsel. If the defendant chooses to proceed without
counsel, the court shall ascertain whether this waiver is made voluntarily,
competently and with knowledge of the consequences. If the court finds the
waiver valid, an appropriate finding shall be entered in the minutes.
Unless the waiver is valid, the court shall not proceed with the
arraignment until counsel is provided. Waiver of counsel at arraignment
shall not preclude the defendant from claiming the right to counsel in
subsequent proceedings in the cause, and the defendant shall be so
informed. If such claim for counsel is not timely, the court shall appoint
counsel but may deny or limit a continuance.
(e) Name. Defendant shall be asked his or her true name. If the
defendant alleges that the true name is one other than that by which he or
she is charged, it must be entered in the minutes of the court, and
subsequent proceedings shall be had by that name or other names relevant to
the proceedings.
(f) Reading. The indictment or information shall be read to defendant,
unless the reading is waived, and a copy shall be given to defendant.
[Adopted effective July 1, 1973; Amended effective September 1, 2003]
Comment
Supersedes RCW 10.40.010, .030, .040; RCW 10.46.030 in part, .040.
4.2 PLEAS (IN WORD FORMAT) The contents of this item are only available on-line.
RULE 4.3
JOINDER OF OFFENSES AND DEFENDANTS
(a) Joinder of Offenses. Two or more offenses may be joined in one
charging document, with each offense stated in a separate count, when the
offenses, whether felonies or misdemeanors or both:
(1) Are of the same or similar character, even if not part of a single
scheme or plan; or
(2) Are based on the same conduct or on a series of acts connected
together or constituting parts of a single scheme or plan.
(b) Joinder of Defendants. Two or more defendants may be joined in the
same charging document:
(1) When each of the defendants is charged with accountability for each
offense included;
(2) When each of the defendants is charged with conspiracy and one or
more of the defendants is also charged with one or more offenses alleged to
be in furtherance of the conspiracy; or
(3) When, even if conspiracy is not charged and all of the defendants
are not charged in each count, it is alleged that the several offenses
charged:
(i) were part of a common scheme or plan; or
(ii) were so closely connected in respect to time, place and occasion
that it would be difficult to separate proof of one charge from proof of
the others.
(c) (Reserved.)
(d) (Reserved.)
(e) Improper Joinder. Improper joinder of offenses or defendants shall
not preclude subsequent prosecution on the same charge for the charge or
defendant improperly joined.
RULE 4.3.1
CONSOLIDATION FOR TRIAL
(a) Consolidation Generally. Offenses or defendants properly joined
under rule 4.3 shall be consolidated for trial unless the court orders
severance pursuant to rule 4.4.
(b) Failure to Join Related Offenses.
(1) Two or more offenses are related offenses, for purposes of this rule,
if they are within the jurisdiction and venue of the same court and are based
on the same conduct.
(2) When a defendant has been charged with two or more related offenses,
the timely motion to consolidate them for trial should be granted unless the
court determines that because the prosecuting attorney does not have
sufficient evidence to warrant trying some of the offenses at that time, or
for some other reason, the ends of justice would be defeated if the motion
were granted. A defendant's failure to so move constitutes a waiver of any
right of consolidation as to related offenses with which the defendant knew he
or she was charged.
(3) A defendant who has been tried for one offense may thereafter move to
dismiss a charge for a related offense, unless a motion for consolidation of
these offenses was previously denied or the right of consolidation was waived
as provided in this rule. The motion to dismiss must be made prior to the
second trial, and shall be granted unless the court determines that because
the prosecuting attorney was unaware of the facts constituting the related
offense or did not have sufficient evidence to warrant trying this offense at
the time of the first trial, or for some other reason, the ends of justice
would be defeated if the motion were granted.
(4) Entry of a plea of guilty to one offense does not bar the subsequent
prosecution of a related offense unless the plea of guilty was entered on the
basis of a plea agreement in which the prosecuting attorney agreed to seek or
not to oppose dismissal of other related charges or not to prosecute other
potential related charges.
(c) Authority of Court To Act on Own Motion. The court may order
consolidation for trial of two or more indictments or informations if the
offenses or defendants could have been joined in a single charging document
under rule 4.3.
[Former Rule 4.3A adopted effective September 1, 1995; redesignated as Rule
4.3.1 effective April 3, 2001.]
RULE 4.4
SEVERANCE OF OFFENSES AND DEFENDANTS
(a) Timeliness of Motion--Waiver.
(1) A defendant's motion for severance of offenses or defendants must be
made before trial, except that a motion for severance may be made before or
at the close of all the evidence if the interests of justice require.
Severance is waived if the motion is not made at the appropriate time.
(2) If a defendant's pretrial motion for severance was overruled he may
renew the motion on the same ground before or at the close of all the
evidence. Severance is waived by failure to renew the motion.
(b) Severance of Offenses. The court, on application of the prosecuting
attorney, or on application of the defendant other than under section (a),
shall grant a severance of offenses whenever before trial or during trial
with consent of the defendant, the court determines that severance will
promote a fair determination of the defendant's guilt or innocence of each
offense.
(c) Severance of Defendants.
(1) A defendant's motion for severance on the ground that an out-of-court
statement of a codefendant referring to him is inadmissible against him
shall be granted unless:
(i) the prosecuting attorney elects not to offer the statement in the
case in chief; or
(ii) deletion of all references to the moving defendant will eliminate
any prejudice to him from the admission of the statement.
(2) The court, on application of the prosecuting attorney, or on
application of the defendant other than under subsection (i), should grant
a severance of defendants whenever:
(i) if before trial, it is deemed necessary to protect a defendant's
rights to a speedy trial, or it is deemed appropriate to promote a fair
determination of the guilt or innocence of a defendant; or
(ii) if during trial upon consent of the severed defendant, it is
deemed necessary to achieve a fair determination of the guilt or innocence
of a defendant.
(3) When such information would assist the court in ruling on a motion
for severance of defendants, the court may order the prosecuting attorney
to disclose any statements made by the defendants which he intends to
introduce in evidence at the trial.
(4) The assignment of a separate cause number to each defendant of those
named on a single charging document is not considered a severance. Should a
defendant desire that the case be severed, the defendant must move for
severance.
(d) Failure To Prove Grounds for Joinder of Defendants. If, pursuant to
section (a), a defendant moves to be severed at the conclusion of the
prosecutions case or of all the evidence, and there is not sufficient
evidence to support the grounds upon which the moving defendant was joined
or previously denied severance, the court shall grant a severance if, in
view of this lack of evidence, failure to sever prejudices the moving
defendant.
(e) Authority of Court To Act on Own Motion. The court may order a
severance of offenses or defendants before trial if a severance could be
obtained on motion of a defendant or the prosecution.
[Amended effective December 28, 1990; September 1, 2007.] Comment
Supersedes RCW 10.46.100.
RULE 4.5
OMNIBUS HEARING
(a) When Required. When a plea of not guilty is entered, the court
shall set a time for an omnibus hearing.
(b) Time. The time set for the omnibus hearing shall allow sufficient
time for counsel to (i) initiate and complete discovery; (ii) conduct
further investigation of the case, as needed; and (iii) continue plea
discussions.
(c) Checklist. At the omnibus hearing, the trial court on its own
initiative, utilizing a checklist substantially in the form of the omnibus
application by plaintiff and defendant (see section (h)) shall:
(i) ensure that standards regarding provision of counsel have been
complied with;
(ii) ascertain whether the parties have completed discovery and, if
not, make orders appropriate to expedite completion;
(iii) make rulings on any motions, other requests then pending, and
ascertain whether any additional motions, or requests will be made at the
hearing or continued portions thereof;
(iv) ascertain whether there are any procedural or constitutional
issues which should be considered;
(v) upon agreement of counsel, or upon a finding that the trial is
likely to be protracted or otherwise unusually complicated, set a time for
a pretrial conference; and
(vi) permit defendant to change his plea.
(d) Motions. All motions and other requests prior to trial should be
reserved for and presented at the omnibus hearing unless the court
otherwise directs. Failure to raise or give notice at the hearing of any
error or issue of which the party concerned has knowledge may constitute
waiver of such error or issue. Checklist forms substantially like the
memorandum required by section (h) shall be made available by the court and
utilized at the hearing to ensure that all requests, errors and issues are
then considered.
(e) Continuance. Any and all issues should be raised either by counsel
or by the court without prior notice, and if appropriate, informally
disposed of. If additional discovery, investigation or preparation, or
evidentiary hearing, or formal presentation is necessary for a fair and
orderly determination of any issue, the omnibus hearing should be continued
from time to time until all matters raised are properly disposed of.
(f) Record. A verbatim record (electronic, mechanical or otherwise),
shall be made of all proceedings at the hearing.
(g) Stipulations. Stipulations by any party shall be binding upon that
party at trial unless set aside or modified by the court in the interests
of justice.
(h) Memorandum. At the conclusion of the hearing, a summary memorandum
shall be made indicating disclosure made, rulings and orders of the court,
stipulations, and any other matters determined or pending. Such summary
memorandum shall be in substantially the following form:
Copy Received Date Filed by Clerk
SUPERIOR COURT OF WASHINGTON
FOR (_______________) COUNTY
THE STATE OF WASHINGTON, ) No. ______
Plaintiff, )
v. ) OMNIBUS APPLICATION
_______________, ) BY PLAINTIFF
Defendant. ) AND DEFENDANT
Date ____________________.
Notice to ______________________________________________________.
Purpose: To prepare for trial or plea and to determine the extent of
discovery to be granted to each party.
I
MOTION BY DEFENDANT
Comes now the defendant and makes the applications or motions checked
off below:
1. To dismiss for failure of the indictment (of information) to state
an offense. Granted _____ Denied _____.
2. To sever defendant's case and for separate trial.
3. To sever counts and for a separate trial.
4. To make more definite and certain.
5. For discovery of all oral, written or recorded statements made by
defendant to investigating officers or to third parties and in the
possession of the plaintiff.
6. For discovery of the names and addresses of plaintiff's witnesses
and their statements.
7. To inspect physical or documentary evidence in plaintiff's
possession.
8. To suppress physical evidence in plaintiff's possession because of
(1) illegal search, (2) illegal arrest. Hearing set for __________.
9. For a hearing under rule 3.5.
10. To suppress evidence of the identification of the defendant.
11. To take the deposition of witnesses.
12. To secure the appearance of a witness at trial or hearing.
13. To inquire into the conditions of pretrial release. Affirmed
__________ Modified to __________.
To Require the Prosecution
14. To state:
(a) If there was an informer involved;
(b) Whether he will be called as a witness at the trial; and,
(c) To state the name and address of the informer or claim the
privilege.
15. To disclose evidence in plaintiff's possession, favorable to
defendant on the issue of guilt.
16. To disclose whether it will rely on prior acts or convictions of a
similar nature for proof of knowledge or intent.
17. To advise whether any expert witness will be called, and if so,
supply:
(a) Name of witness, qualifications and subject of testimony;
(b) Report.
18. To supply any reports or tests of physical or mental examinations
in the control of the prosecution.
19. To supply any reports of scientific tests, experiments, or
comparisons and other reports to experts in the control of the prosecution,
pertaining to this case.
20. To permit inspection and copying of any books, papers, documents,
photographs or tangible objects which the prosecution:
(a) Obtained from or belonging to the defendant; or
(b) Which will be used at the hearing or trial.
21. To supply any information known concerning a prior conviction of
persons whom the prosecution intends to call as witnesses at the hearing or
trial.
22. To inform the defendant of any information he has indicating
entrapment of the defendant.
Dated this _______ day of ____________________, 19____.
___________________________________
Attorney for Defendant
II
MOTION BY PLAINTIFF
The plaintiff makes the application or motions checked:
1. Defendant to state the general nature of his defense.
2. Defendant to state whether or not he will rely on an alibi and, if
so, to furnish a list of his alibi witnesses and their addresses. Granted
_____ Denied _____.
3. Defendant to state whether or not he will rely on a defense of
insanity at the time of the offense.
(a) If so, defendant to supply the name(s) of his witness(es) on
the issue, both lay and professional.
(b) If so, defendant to permit the prosecution to inspect and copy
all medical reports under his control or the control of his attorney.
(c) Defendant will also state whether or not he will submit to a
psychiatric examination by a doctor selected by the prosecution.
4. Defendant to furnish results of scientific tests, experiments or
comparisons and the names of persons who conducted the tests.
5. Defendant to appear in a lineup.
6. Defendant to speak for voice identification by witnesses.
7. Defendant to be fingerprinted.
8. Defendant to pose for photographs (not involving a reenactment of
the crime).
9. Defendant to try on articles of clothing.
10. Defendant to permit taking of specimens of material under
fingernails.
11. Defendant to permit taking samples of blood, hair and other
materials of his body which involve no unreasonable intrusion thereof.
12. Defendant to provide samples of his handwriting.
13. Defendant to submit to a physical external inspection of his body.
14. Defendant to state whether there is any claim of incompetency to
stand trial.
15. For discovery of the names and addresses of defendant's witnesses
and their statements.
16. To inspect physical or documentary evidence in defendant's
possession.
17. To take the deposition(s) of witness(es).
18. To secure the appearance of a witness at trial or hearing.
19. Defendant to state whether his prior convictions will be stipulated
or need be proved.
20. Defendant to state whether he will stipulate to the continuous
chain of custody of evidence from acquisition to trial.
Dated this _______ day of ____________________, 19____.
_______________________________
Prosecuting Attorney
It is so ordered this _______ day of ___________________, 19____.
___________________________________
Judge
Comment
Supersedes RCW 10.46.030 in part.
RULE CrR 4.6
DEPOSITIONS
(a) When Taken. The Court may order a deposition when (1) the court finds
that a prospective witness may be unable to attend or prevented from attending
a trial or hearing, (2) a witness refuses to discuss the case with either
counsel and the witness' testimony is material and necessary, or (3) there is
good cause shown to take the deposition. The court at any time after arraignment
may upon motion of a party and notice to the parties, order a deposition and
require that any designated books, papers, documents or tangible objects, not
privileged, be produced at the same time and place. A witness who is sought to
be deposed, or a party, may seek a protective order as provided in the Civil Rules.
(b) Notice of Taking. The party at whose instance a deposition is to be taken
shall give to every other party reasonable written notice of the time and place for
taking the deposition. The notice shall state the name and address of each person
to be examined. On motion of a party upon whom the notice is served, the court for
cause shown may extend or shorten the time and may change the place of taking.
(c) How Taken. A deposition shall be taken in the manner provided in civil actions.
No deposition shall be used in evidence against any defendant who has not had notice
of and an opportunity to participate in or be present at the taking thereof.
(d) Use. Any deposition may be used by any party for the purpose of contradicting
or impeaching the testimony of the deponent as witness, or as substantive evidence
under circumstances permitted by the Rules of Evidence.
(e) Objections to Admissibility. Objections to receiving in evidence a
deposition or part thereof may be made as provided in civil actions.
[Amended effective September 1, 1983; September 1, 2012.]
RULE CrR 4.7
DISCOVERY
(a) Prosecutors Obligations.
(1) Except as otherwise provided by protective orders or as to
matters not subject to disclosure, the prosecuting attorney shall
disclose to the defendant the following material and information
within the prosecuting attorney's possession or control no later
than the omnibus hearing:
(i) the names and addresses of persons whom the prosecuting
attorney intends to call as witnesses at the hearing or trial,
together with any written or recorded statements and the
substance of any oral statements of such witnesses;
(ii) any written or recorded statements and the substance of
any oral statements made by the defendant, or made by a
codefendant if the trial is to be a joint one;
(iii) when authorized by the court, those portions of grand
jury minutes containing testimony of the defendant, relevant
testimony of persons whom the prosecuting attorney intends to
call as witnesses at the hearing or trial, and any relevant
testimony that has not been transcribed;
(iv) any reports or statements of experts made in connection
with the particular case, including results of physical or mental
examinations and scientific tests, experiments, or comparisons;
(v) any books, papers, documents, photographs, or tangible
objects, which the prosecuting attorney intends to use in the
hearing or trial or which were obtained from or belonged to the
defendant; and
(vi) any record of prior criminal convictions known to the
prosecuting attorney of the defendant and of persons whom the
prosecuting attorney intends to call as witnesses at the hearing
or trial.
(2) The prosecuting attorney shall disclose to the defendant:
(i) any electronic surveillance, including wiretapping, of
the defendant's premises or conversations to which the defendant
was a party and any record thereof;
(ii) any expert witnesses whom the prosecuting attorney will
call at the hearing or trial, the subject of their testimony, and
any reports they have submitted to the prosecuting attorney;
(iii) any information which the prosecuting attorney has
indicating entrapment of the defendant.
(3) Except as is otherwise provided as to protective orders,
the prosecuting attorney shall disclose to defendant's counsel
any material or information within the prosecuting attorney's
knowledge which tends to negate defendant's guilt as to the
offense charged.
(4) The prosecuting attorney's obligation under this section is
limited to material and information within the knowledge,
possession or control of members of the prosecuting attorney's
staff.
(b) Defendant's Obligations.
(1) Except as is otherwise provided as to matters not subject
to disclosure and protective orders, the defendant shall disclose
to the prosecuting attorney the following material and
information within the defendant's control no later than the
omnibus hearing: the names and addresses of persons whom the
defendant intends to call as witnesses at the hearing or trial,
together with any written or recorded statements and the
substance of any oral statements of such witness.
(2) Notwithstanding the initiation of judicial proceedings, and
subject to constitutional limitations, the court on motion of the
prosecuting attorney or the defendant, may require or allow the
defendant to:
(i) appear in a lineup;
(ii) speak for identification by a witness to an offense;
(iii) be fingerprinted;
(iv) pose for photographs not involving reenactment of the
crime charged;
(v) try on articles of clothing;
(vi) permit the taking of samples of or from the defendant's
blood, hair, and other materials of the defendant's body
including materials under the defendant's fingernails which
involve no unreasonable intrusion thereof;
(vii) provide specimens of the defendant's handwriting;
(viii) submit to a reasonable physical, medical, or
psychiatric inspection or examination;
(ix) state whether there is any claim of incompetency to
stand trial;
(x) allow inspection of physical or documentary evidence in
defendant's possession;
(xi) state whether the defendant's prior convictions will be
stipulated or need to be proved;
(xii) state whether or not the defendant will rely on an
alibi and, if so, furnish a list of alibi witnesses and their
addresses;
(xiii) state whether or not the defendant will rely on a
defense of insanity at the time of the offense;
(xiv) state the general nature of the defense.
(3) Provisions may be made for appearance for the foregoing
purposes in an order for pretrial release.
(c) Additional Disclosures Upon Request and Specification. Except
as is otherwise provided as to matters not subject to disclosure
the prosecuting attorney shall, upon request of the defendant,
disclose any relevant material and information regarding:
(1) Specified searches and seizures;
(2) The acquisition of specified statements from the defendant;
and
(3) The relationship, if any, of specified persons to the
prosecuting authority.
(d) Material Held by Others. Upon defendant's request and
designation of material or information in the knowledge,
possession or control of other persons which would be
discoverable if in the knowledge, possession or control of the
prosecuting attorney, the prosecuting attorney shall attempt to
cause such material or information to be made available to the
defendant. If the prosecuting attorney's efforts are unsuccessful
and if such material or persons are subject to the jurisdiction
of the court, the court shall issue suitable subpoenas or orders
to cause such material to be made available to the defendant.
(e) Discretionary Disclosures.
(1) Upon a showing of materiality to the preparation of the
defense, and if the request is reasonable, the court in its
discretion may require disclosure to the defendant of the
relevant material and information not covered by sections (a),
(c) and (d).
(2) The court may condition or deny disclosure authorized by
this rule if it finds that there is a substantial risk to any
person of physical harm, intimidation, bribery, economic
reprisals or unnecessary annoyance or embarrassment, resulting
from such disclosure, which outweigh any usefulness of the
disclosure to the defendant.
(f) Matters Not Subject to Disclosure.
(1) Work Product. Disclosure shall not be required of legal
research or of records, correspondence, reports or memoranda to
the extent that they contain the opinions, theories or
conclusions of investigating or prosecuting agencies except as to
material discoverable under subsection (a)(1)(iv).
(2) Informants. Disclosure of an informants identity shall not
be required where the informants identity is a prosecution secret
and a failure to disclose will not infringe upon the
constitutional rights of the defendant. Disclosure of the
identity of witnesses to be produced at a hearing or trial shall
not be denied.
(g) Medical and Scientific Reports. Subject to constitutional
limitations, the court may require the defendant to disclose any
reports or results, or testimony relative thereto, of physical or
mental examinations or of scientific tests, experiments or
comparisons, or any other reports or statements of experts which
the defendant intends to use at a hearing or trial.
(h) Regulation of Discovery.
(1) Investigations Not To Be Impeded. Except as is otherwise
provided with respect to protective orders and matters not
subject to disclosure, neither the counsel for the parties nor
other prosecution or defense personnel shall advise persons other
than the defendant having relevant material or information to
refrain from discussing the case with opposing counsel or showing
opposing counsel any relevant material, nor shall they otherwise
impede opposing counsels investigation of the case.
(2) Continuing Duty To Disclose. If, after compliance with
these rules or orders pursuant thereto, a party discovers
additional material or information which is subject to
disclosure, the party shall promptly notify the other party or
their counsel of the existence of such additional material, and
if the additional material or information is discovered during
trial, the court shall also be notified.
(3) Custody of Materials. Any materials furnished to an
attorney pursuant to these rules 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, unless otherwise agreed
by the parties or ordered by the court, and shall be subject to
such other terms and conditions as the parties may agree or the
court may provide. Further, a defense attorney shall be permitted
to provide a copy of the materials to the defendant after making
appropriate redactions which are approved by the prosecuting
authority or order of the court.
(4) Protective Orders. Upon a showing of cause, the court may
at any time order that specified disclosure be restricted or
deferred, or make such other order as is appropriate, provided
that all material and information to which a party is entitled
must be disclosed in time to permit the party's counsel to make
beneficial use thereof.
(5) Excision. When some parts of certain material are
discoverable under this rule, and other parts not discoverable,
as much of the material shall be disclosed as is consistent with
this rule. Material excised pursuant to judicial order shall be
sealed and preserved in the records of the court, to be made
available to the appellate court in the event of an appeal.
(6) In Camera Proceedings. Upon request of any person, the
court may permit any showing of cause for denial or regulation of
disclosure, or portion of such showing, to be made in camera. A
record shall be made of such proceedings. If the court enters an
order granting relief following a showing in camera, the entire
record of such showing shall be sealed and preserved in the
records of the court, to be made available to the appellate court
in the event of an appeal.
(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) Willful violation by counsel of an applicable discovery
rule or an order issued pursuant thereto may subject counsel to
appropriate sanctions by the court.
[Amended effective September 1, 1986; September 1, 2005;
September 1, 2007.]
Comment Supersedes RCW 10.37.030, .033; RCW 10.46.030 in part.
RULE CrR 4.8
SUBPOENAS
a) For Attendance of Witnesses at Hearing or Trial. A subpoena commanding
a person to attend and give testimony at a hearing or at trial ("a subpoena
for testimony") shall be issued as follows:
(1) Form; Issuance.
(A) A subpoena for testimony shall (i) state the title of the action, the
case number, the name of the court in which the action is pending, and, if
different, the name of the court from which the subpoena is issued; and (ii)
command each person to whom it is directed to attend and give testimony at a
specified time and place.
(B) The court in which the action is pending or before which attendance is
required may issue a subpoena for testimony under the seal of that court, or
the clerk may issue the subpoena for testimony in response to a praecipe. An
attorney for a party also may sign and issue a subpoena for testimony.
(C) A command to a person to produce evidence or to permit inspection may
be joined with a subpoena for testimony or may be issued separately under
section (b) of this rule.
(2) Notice. Notice to each party of the issuance of a subpoena for
testimony is not required; provided that, when a subpoena for testimony also
commands the person to whom it is directed to produce evidence or to permit
inspection of things, the serving party shall give advance notice of such
subpoena in the manner described in subsection (b) of this rule.
(3) Service-How Made. A subpoena for testimony may be served by any
suitable person over 18 years of age, by giving the witness a copy thereof, or
by leaving a copy at the witness's dwelling house or usual place of abode with
some person of suitable age and discretion then residing therein. When
service is made by any person other than an officer authorized to serve
process, proof of service shall be made by affidavit or declaration. A
subpoena for testimony may also be served by first-class mail, postage
prepaid, together with a waiver of personal service and instructions for
returning such waiver to the attorney of record of the party to the action in
whose behalf the witness is required to appear. Service by mail shall be
deemed complete upon the filing of the returned waiver of personal service,
signed in affidavit or declaration form.
(4) When Witness Excused. A witness subpoenaed to attend a hearing or trial
is excused from further attendance as soon as the witness has given testimony
in chief and has been cross-examined thereon, unless a party moves in open
court that the witness remain in attendance and the court so orders. Witness
fees will not be allowed any witness after the day on which the witness's
testimony is given, except when the witness has in open court been required to
remain in further attendance, and when so required the clerk shall note that
fact in the minutes.
(b) For Producing Evidence or Permitting Inspection. A subpoena commanding
a person to produce and permit inspection and copying of designated documents,
tangible things, or premises in the possession, custody, or control of that
person ("a subpoena for production") shall be issued as follows:
(1) Form; Issuance.
(A) A subpoena for production shall (i) state the title of the action, the
case number, the name of the court in which the action is pending, and, if
different, the name of the court from which the subpoena is issued;
(ii) command each person to whom it is directed to produce and permit
inspection and copying of documentary evidence, tangible things, or premises
in the possession, custody, or control of that person at a specified time and
place; and (iii) set forth the text of subsection (b)(4) of this rule.
(B) The court in which the action is pending or before which attendance is
required may issue a subpoena for production under the seal of that court or
the clerk may issue the subpoena in response to a praecipe. An attorney for a
party also may sign and issue a subpoena for production.
(C) A subpoena for production may be joined with a subpoena for testimony,
or it may be issued separately, provided that a subpoena to inspect premises
may not be combined with other subpoenas issued pursuant to this rule.
(2) Notice. Notice to parties of the issuance of a subpoena for production
is not required; provided that, whenever a party intends to serve a subpoena
for production seeking evidence or inspection of things or premises belonging
or pertaining to a defendant who is not the party seeking or issuing the
subpoena, then the serving party must give all parties advance notice; and
provided that, whenever any party intends to serve a subpoena for production
seeking evidence or inspection of things belonging or pertaining to an alleged
victim or complaining witness, then the serving party shall provide advance
notice to all parties and to the alleged victim or complaining witness; and
provided that a subpoena for inspection of premises must be signed by the court
and only after good cause is shown and advance notice is provided to all
parties and the owner or occupier of the premises.
(A) Time and Manner. If advance notice is required under this rule, then no
fewer than five days prior to service on the person named in the subpoena for
production, notice shall be provided in the manner prescribed by CR 5(b). The
parties may agree to shorten the time for advance notice when a subpoena seeks
solely evidence or tangible things belonging or pertaining to a defendant. The
court may shorten the time for advance notice upon a showing of good cause by a
party; provided that, any alleged victim or complaining witness whose evidence,
tangible things, or premises are sought shall receive notice and an opportunity
to be heard on any motion to shorten time.
(B) Court May Excuse Notice. A court on ex parte motion may excuse
compliance with the advance notice requirement upon the serving party's
showing of good cause; any such court order, along with a copy of the subpoena
for which notice is excused, shall be filed under seal pursuant to GR 15.
(3) Service-How Made. A subpoena for production shall be served in the
manner prescribed in CR 5(b); provided that, if the subpoena for production is
joined with a subpoena for testimony, then subsection (a)(3) of this rule
shall govern service.
(4) Protection of Persons Subject to Subpoena for Production. On timely
motion, the court may quash or modify a subpoena for production if it (A)
fails to allow reasonable time for compliance; (B) requires disclosure of
privileged or other protected matter and no exception or waiver applies; (C)
is unreasonable, oppressive, or unduly burdensome; or (D) exceeds the scope of
discovery otherwise permitted under the criminal rules. The court may
condition denial of a motion to quash or modify upon the advancement by the
party on whose behalf the subpoena for production is issued of the reasonable
cost of producing the books, papers, documents, tangible things, or premises.
(5) Applicability of Other Notice and Privacy Provisions. The provisions
of this rule do not modify or limit privacy protections and notice
requirements provided by court rule, statute, regulation, or other applicable law.
(c) Contempt. Failure by any person without adequate excuse to obey a
subpoena served upon that person may be deemed a contempt of the court from
which the subpoena issued.
[Adopted effective July 1, 1973; amended effective December 28, 2010.]
RULE 4.9
PRETRIAL CONFERENCE
(RESCINDED)
RULE 4.10
MATERIAL WITNESS
(a) Warrant. On motion of the prosecuting attorney or the defendant,
the court may issue a warrant, subject to reasonable bail, for the arrest
of a material witness. The warrant shall issue only on a showing, by
affidavit or on the record in open court, that the testimony of the witness
is material and that
(1) The witness has refused to submit to a deposition ordered by the
court pursuant to rule 4.6; or
(2) The witness has refused to obey a lawfully issued subpoena; or
(3) It may become impracticable to secure the presence of the witness
by subpoena.
Unless otherwise ordered by the court, the warrant shall be executed
and returned as in rule 2.2.
(b) Hearing. After the arrest of the witness, the court shall hold a
hearing no later than the next judicial day after the witness is present in
the county from which the warrant issued. The witness shall be entitled to
be represented by a lawyer. The court shall appoint a lawyer for an
indigent witness if it is required to protect the rights of the witness.
(c) Release/Detention. Upon a determination that the testimony of the
witness is material and that one of the conditions set forth in section (a)
exists, the court shall set conditions for release of the witness pursuant
to rule 3.2. A material witness shall be released unless the court
determines that the testimony of such witness cannot be secured adequately
by deposition and that further detention is necessary to prevent a failure
of justice. Release of a material witness may be delayed for a reasonable
period of time until the deposition of the witness can be taken pursuant to
rule 4.6.
RULE 5.1
COMMENCEMENT OF ACTIONS
(a) Where Commenced. All actions shall be commenced:
(1) In the county where the offense was committed;
(2) In any county wherein an element of the offense was committed or
occurred.
(b) Two or More Counties. When there is reasonable doubt whether an
offense has been committed in one of two or more counties, the action may
be commenced in any such county.
(c) Right To Change. When a case is filed pursuant to section (b) of
this rule, the defendant shall have the right to change venue to any other
county in which the offense may have been committed. Any objection to venue
must be made as soon after the initial pleading is filed as the defendant
has knowledge upon which to make it.
Comment
Supersedes RCW 10.25.010, .020, .030, .040, .050, .060, .110.
RULE 5.2
CHANGE OF VENUE
(a) When Ordered--Improper County. The court shall order a change of
venue upon motion and showing that the action has not been prosecuted in
the proper county.
(b) When Ordered--On Motion of Party. The court may order a change of
venue to any county in the state:
(1) Upon written agreement of the prosecuting attorney and the
defendant;
(2) Upon motion of the defendant, supported by affidavit that he
believes he cannot receive a fair trial in the county where the action is
pending.
(c) Discharge of Jury. When the court orders a change of venue it shall
discharge the jury, if any, without prejudice to the prosecution, and
direct that all the papers and proceedings be certified to the superior
court of the proper county and direct the defendant and the witnesses to
appear at such court.
Comment
Supersedes RCW 10.25.080, .090, .100; RCW 10.46.180.
Comment
RCW 10.46.070 is superseded in part by all of CrR 6.
RULE 6.1
TRIAL BY JURY OR BY THE COURT
(a) Trial by Jury. Cases required to be tried by jury shall be so tried
unless the defendant files a written waiver of a jury trial, and has
consent of the court.
(b) Number of Jurors. Unless otherwise provided by these rules, the
number of persons serving on a jury shall be 12, not including alternates.
If prior to trial on a noncapital case all defendants so elect, the case
shall be tried by a jury of not less than six, or by the court.
(c) Juror Unable To Continue. If a case has not yet been submitted to
the jury and a juror is unable to continue and no alternate jurors were
selected or none are available, or if a case has been submitted to the jury
and a juror is unable to continue, all defendants may elect to continue
with the remaining jurors. The court shall declare a mistrial for any
defendant who does not elect to continue with the remaining jurors. If
some, but not all, defendants elect to continue with the trial, the court
shall proceed with the trial for those defendants unless the court
determines manifest necessity requires a mistrial.
(d) Trial Without Jury. In a case tried without a jury, the court shall
enter findings of fact and conclusions of law. In giving the decision, the
facts found and the conclusions of law shall be separately stated. The
court shall enter such findings of fact and conclusions of law only upon 5
days' notice of presentation to the parties.
Comment
Supersedes RCW 10.49.020.
RULE 6.2
JURORS' ORIENTATION
All jurors will be given a general orientation when they report for
duty.
(a) Juror Handbook. A copy of the Jurors Handbook to Washington Courts
prepared by the Superior Court Judges' Association of the State of
Washington and the Washington State Magistrates Association shall be
provided to all petit jurors by the court in which they are to serve.
(b) Juror Information Sheet. Prior to the commencement of a petit
jurors term of service, a juror information sheet shall be furnished to the
juror by the court in which the person is to serve. The format of the
information sheet shall be consistent with recommendations of the
Administrator for the Courts.
RULE CrR 6.3
SELECTING THE JURY
When the action is called for trial, the jurors shall be
selected at random from the jurors summoned who have appeared and
have not been excused.
[Amended effective September 1, 1993.]
RULE 6.4
CHALLENGES
(a) Challenges to the Entire Panel. Challenges to the entire
panel shall only be sustained for a material departure from the
procedures prescribed by law for their selection.
(b) Voir Dire. A voir dire examination shall be conducted for
the purpose of discovering any basis for challenge for cause and
for the purpose of gaining knowledge to enable an intelligent
exercise of peremptory challenges. The judge shall initiate the
voir dire examination by identifying the parties and their
respective counsel and by briefly outlining the nature of the
case. The judge and counsel may then ask the prospective jurors
questions touching their qualifications to serve as jurors in the
case, subject to the supervision of the court as appropriate to
the facts of the case.
(c) Challenges for Cause.
(1) If the judge after examination of any juror is of the
opinion that grounds for challenge are present, he or she shall
excuse that juror from the trial of the case. If the judge does
not excuse the juror, any party may challenge the juror for
cause.
(2) RCW 4.44.150 through 4.44.200 shall govern challenges for
cause.
(d) Exceptions to Challenge.
(1) Determination. The challenge may be excepted to by the
adverse party for insufficiency and, if so, the court shall
determine the sufficiency thereof, assuming the facts alleged
therein to be true. The challenge may be denied by the adverse
party and, if so, the court shall try the issue and determine the
law and the facts.
(2) Trial of Challenge. Upon trial of a challenge, the Rules
of Evidence applicable to testimony offered upon the trial of an
ordinary issue of fact shall govern. The juror challenged, or any
other person otherwise competent, may be examined as a witness by
either party. If a challenge be determined to be sufficient, or
if found to be true, as the case may be, it shall be allowed, and
the juror
to whom it was taken excluded; but if not so determined or found
otherwise, it shall be disallowed.
(e) Peremptory Challenges.
(1) Peremptory Challenges Defined. A peremptory challenge is
an objection to a juror for which there is no reason given, but
upon which the court shall exclude the juror. In prosecutions for
capital offenses the defense and the state may challenge
peremptorily 12 jurors each; in prosecution for offenses
punishable by imprisonment in the state Department of Corrections
6 jurors each; in all other prosecutions, 3 jurors each. When
several defendants are on trial together, each defendant shall be
entitled to one challenge in addition to the number of challenges
provided above, with discretion in the trial judge to afford the
prosecution such additional challenges as circumstances warrant.
(2) Peremptory Challenges--How Taken. After prospective
jurors have been passed for cause, peremptory challenges shall be
exercised alternately first by the prosecution then by each
defendant until the peremptory challenges are exhausted or the
jury accepted. Acceptance of the jury as presently constituted
shall not waive any remaining peremptory challenges to jurors
subsequently called.
Comment
Supersedes RCW 10.49.030, .040, .050, .060.
Amended Effective December 26, 2000
RULE 6.5
ALTERNATE JURORS
When the jury is selected the court may direct the selection of one or
more additional jurors, in its discretion, to be known as alternate jurors.
Each party shall be entitled to one peremptory challenge for each alternate
juror to be selected. When several defendants are on trial together, each
defendant shall be entitled to one challenge in addition to the challenge
provided above, with discretion in the trial judge to afford the
prosecution such additional challenges as circumstances warrant. If at any
time before submission of the case to the jury a juror is found unable to
perform the duties the court shall order the juror discharged, and the
clerk shall draw the name of an alternate who shall take the jurors place
on the jury.
Alternate jurors who do not replace a regular juror may be discharged
or temporarily excused after the jury retires to consider its verdict. When
jurors are temporarily excused but not discharged, the trial judge shall
take appropriate steps to protect alternate jurors from influence,
interference or publicity, which might affect that jurors ability to remain
impartial and the trial judge may conduct brief voir dire before seating
such alternate juror for any trial or deliberations. Such alternate juror
may be recalled at any time that a regular juror is unable to serve,
including a second phase of any trial that is bifurcated. If the jury has
commenced deliberations prior to replacement of an initial juror with an
alternate juror, the jury shall be instructed to disregard all previous
deliberations and begin deliberations anew.
Comment
Supersedes RCW 10.49.070.
RULE 6.6
JURORS' OATH
The jury shall be sworn or affirmed well and truly to try the issue
between the State and the defendant, according to the evidence and
instructions by the court.
Comment
Supersedes RCW 10.49.100.
RULE 6.7
CUSTODY OF JURY
(a) Generally. During trial and deliberations the jury may be allowed
to separate unless good cause is shown, on the record, for sequestration of
the jury.
(b) Communication Restricted. Unless the jury is allowed to separate,
the jurors shall be kept together under the charge of one or more officers
until they agree upon their verdict or are discharged by the court. The
officer shall keep the jurors separate from other persons and shall not
allow any communication which may affect the case to be made to the jurors,
nor make any himself, unless by order of the court, except to ask the
jurors if they have agreed upon their verdict. The officer shall not,
before the verdict is rendered, communicate to any person the state of the
jurors' deliberations or their verdict.
(c) Motions. Any motions or proceedings concerning the separation or
sequestration of the jury shall be made out of the presence of the jury.
RULE CrR 6.8
NOTE TAKING BY JURORS
In all cases, jurors shall be allowed to take written
notes regarding the evidence presented to them and keep
these notes with them during their deliberation. The court
may allow jurors to keep these notes with them in the jury
room during recesses, in which case jurors may review their
own notes but may not share or discuss the notes with other
jurors until they begin deliberating. Such notes should be
treated as confidential between the jurors making them and
their fellow jurors, and shall be destroyed immediately
after the verdict is rendered.
[Adopted effective July 1, 1973; amended effective October 1, 2002.]
RULE 6.9
VIEW OF PREMISES BY JURY
The court may allow the jury to view the place in which any material
fact occurred. In such event it shall order the jury to be conducted in a
body, in the custody of a proper officer of the court to the place which
shall be shown to them by the judge. The defendant shall be present at the
view. During the view, no person other than the judge or person authorized
by him shall speak to the jury on any subject relating to the trial.
RULE 6.10
DISCHARGE OF JURY
The jury may be discharged by the court on consent of both parties or
when it appears that there is no reasonable probability of their reaching
agreement.
RULE 6.11
JUDGE--DISABILITY
(a) Disability of Judge During Jury Trial. If, before the
judge submits the case to the jury, he or she is unable to
continue with the trial, any other judge assigned to or regularly
sitting in the court, upon becoming familiar with the record of
the trial, may proceed with the trial. Upon defendant's objection
to the replacement, a mistrial shall be granted. If, after the
judge submits the case to the jury, he or she is unable to
continue, the case shall proceed before another judge.
(b) Disability of Judge During Nonjury Trial. If a judge
before whom trial without jury has commenced is unable to proceed
with the trial, a mistrial shall be granted.
Amended Effective December 26, 2000
RULE 6.12
WITNESSES
(a) Who May Testify. Any person may be a witness in any
action or proceeding under these rules except as hereinafter
provided or as provided in the Rules of Evidence.
(b) When Excused. A witness subpoenaed to attend in a
criminal case is dismissed and excused from further attendance as
soon as he or she has given his or her testimony in chief and has
been cross-examined thereon, unless either party makes requests
in open court that the witness remain in attendance; and witness
fees will not be allowed any witness after the day on which his
or her testimony is given, except when the witness has in open
court been required to remain in further attendance, and when so
required the clerk shall note that fact in his or her journal.
(c) Persons Incompetent To Testify. The following persons are
incompetent to testify: (1) Those who are of unsound mind, or
intoxicated at the time of their production for examination; and
(2) children who do not have the capacity of receiving just
impressions of the facts about which they are examined or who do
not have the capacity of relating them truly. This shall not
affect any recognized privileges.
(d) Not Excluded on Grounds of Interest. No person offered as
a witness shall be excluded from giving evidence by reason of his
or her interest in the result of the action, as a party thereto
or otherwise, but such interest may be shown to affect his or her
credibility.
Comment
See RCW 10.01.130.
Amended Effective December 26, 2000
RULE 6.13
TESTIMONY IN LIEU OF WITNESSES
(a) Deposition. Upon a determination that the testimony of a
witness is material, and that it appears probable that the
witness will not voluntarily appear at the trial, the court may
order the taking of his or her deposition. Pending the taking of
the deposition the provisions of CrR 3.2 shall apply.
(b) Test Report by Expert.
(1) Certification Required. Subject to subsection (b)(3) of
this rule, the official written report of an expert witness which
contains the results of any test of a substance or object which
are relevant to an issue in a trial shall be admitted in evidence
without further proof or foundation as prima facie evidence of
the facts stated in the report if the report bears or has
attached a certification stating that the certifier has performed
a test on the substance or object in question, the name of the
person from whom the substance or object was received, the
certificate is attached to a true and complete copy of the
certifiers official report, the report was made by the certifier,
and the qualifications of the certifier to make such tests. The
certificate shall be signed by the certifier with the title of
his office and his business address and telephone number.
(2) Form. The certificate shall be in substantially the
following form:
The undersigned certifies under penalty of perjury that:
1. He performed a test on the (substance) (object) in
question;
2. The person from whom he received the (substance) (object)
in question is ______________;
3. The document on which this certificate appears or to which
it is attached is a true and complete copy of my official report;
and
4. Such document is a report of the results of a test which
report and test were made by the undersigned who has the
following qualifications and experience:
___________________________________________________________.
___________________________________________________________.
___________________________________
Signature
___________________________________
Title
___________________________________
Business Address and Telephone
(3) Notice Requirements. The court shall exclude such report
if:
(i) a copy of the report and certificate has not been served
on the defendant or the defendant's attorney at least 15 days
prior to the trial date or, upon a showing of cause, such lesser
time as the court deems proper; or
(ii) in the case of an unrepresented defendant, a copy of
this rule in addition to a copy of the report and certificate has
not been served on the defendant at least 15 days prior to the
trial date or, upon a showing of cause, such lesser time as the
court deems proper; or
(iii) at least 7 days prior to the trial date or, upon a
showing of cause, such lesser time as the court deems proper, the
defendant has served a written demand upon the prosecutor to
produce the expert witness at the trial.
Amended Effective December 26, 2000
RULE 6.14
IMMUNITY
In any case the court on motion of the prosecuting attorney
may order that a witness shall not be excused from giving
testimony or producing any papers, documents or things, on the
ground that such testimony may tend to incriminate or subject the
witness to a penalty or forfeiture; but the witness shall not be
prosecuted or subjected to criminal penalty or forfeiture for or
on account of any transaction, matter, or fact concerning which
the witness has been ordered to testify pursuant to this rule.
The witness may nevertheless be prosecuted for failing to comply
with the order to answer, or for perjury or the giving of false
evidence.
Amended Effective December 26, 2000
RULE CrR 6.15
INSTRUCTIONS AND ARGUMENT
(a) Proposed Instructions. Proposed jury instructions shall
be served and filed when a case is called for trial by serving
one copy upon counsel for each party, by filing one copy with the
clerk, and by delivering the original and one additional copy for
each party to the trial judge. Additional instructions, which
could not be reasonably anticipated, shall be served and filed at
any time before the court has instructed the jury.
Not less than 10 days before the date of trial, the court may
order counsel to serve and file proposed instructions not less
than 3 days before the trial date.
Each proposed instruction shall be on a separate sheet of
paper. The original shall not be numbered nor include citations
of authority.
Any superior court may adopt special rules permitting certain
instructions to be requested by number from any published book of
instructions.
(b) (Reserved.)
(c) Objection to Instructions. Before instructing the jury,
the court shall supply counsel with copies of the proposed
numbered instructions, verdict and special finding forms. The
court shall afford to counsel an opportunity in the absence of
the jury to object to the giving of any instructions and the
refusal to give a requested instruction or submission of a
verdict or special finding form. The party objecting shall state
the reasons for the objection, specifying the number, paragraph,
and particular part of the instruction to be given or refused.
The court shall provide counsel for each party with a copy of the
instructions in their final form.
(d) Instructing the Jury and Argument of Counsel. The court
shall read the instructions to the jury. The prosecution may then
address the jury after which the defense may address the jury
followed by the prosecutions rebuttal.
(e) Deliberation. After argument, the jury shall retire to
consider the verdict. The jury shall take with it the
instructions given, all exhibits received in evidence and a
verdict form or forms.
(f) Questions from Jury During Deliberations.
(1) The jury shall be instructed that any question it wishes
to ask the court about the instructions or evidence should be
signed, dated and submitted in writing to the bailiff. The court
shall notify the parties of the contents of the questions and
provide them an opportunity to comment upon an appropriate
response. Written questions from the jury, the court’s response
and any objections thereto shall be made a part of the record.
The court shall respond to all questions from a deliberating jury
in open court or in writing. In its discretion, the court may
grant a jury’s request to rehear or replay evidence, but should
do so in a way that is least likely to be seen as a comment on
the evidence, in a way that is not unfairly prejudicial and in a
way that minimizes the possibility that jurors will give undue
weight to such evidence. Any additional instruction upon any
point of law shall be given in writing.
(2) After jury deliberations have begun, the court shall not
instruct the jury in such a way as to suggest the need for
agreement, the consequences of no agreement, or the length of
time a jury will be required to deliberate.
(g) Several Offenses. The verdict forms for an offense
charged or necessarily included in the offense charged or an
attempt to commit either the offense charged or any offense
necessarily included therein may be submitted to the jury.
[Amended effective January 2, 1974; September 1, 1986;
amended effective October 1, 2002]
CrR 6.16
VERDICTS AND FINDINGS
(a) Verdicts.
(1) Several Defendants. If there are two or more defendants, the jury at
any time during its deliberations may return a verdict or verdicts with respect
to a defendant or defendants as to whom it has agreed; if a jury cannot agree
with respect to all, the defendant or defendants as to whom it does not agree
may be tried again.
(2) Return of Verdict. When all members of the jury agree upon a verdict,
the presiding juror shall complete and sign the verdict form and return it to
the judge in open court.
(3) Poll of Jurors. When a verdict or special finding is returned and
before it is recorded, the jury shall be polled at the request of any party or
upon the court's own motion. If at the conclusion of the poll, all of the
jurors do not concur, the jury may be directed to retire for further
deliberations or may be discharged by the court.
(b) Special Findings. The court may submit to the jury forms for such
special findings which may be required or authorized by law. The court shall
give such instruction as may be necessary to enable the jury both to make these
special findings or verdicts and to render a general verdict. When a special
finding is inconsistent with another special finding or with the general
verdict, the court may order the jury to retire for further consideration.
(c) Forms.
(1) Verdict. The verdict of the jury may be in substantially the following form:
We, the jury, find the defendant guilty (or not guilty) of the crime of
____________________ as charged in count number __________.
___________________________________
Signature of Presiding Juror
(2) Special Findings. Special findings may be substantially in the
following form:
Was the defendant ______(name)______ armed with a deadly weapon at the time of
the commission of the crime charged in count number _____ Yes ( ) No ( )
(d) Not Guilty By Reason of Insanity.
(1) Procedure When Verdict Received. If a defendant is acquitted of a
crime by reason of insanity, the court shall either direct the defendant's
release or shall order the defendant's hospitalization or an appropriate
alternative treatment as mandated by RCW 10.77.110. Prior to the entry of an
appropriate order releasing or detaining the defendant, the court shall advise
the defendant: (i) of the need to surrender any firearm and any concealed
pistol license, and of the prohibition upon the possession of any firearm or of
a concealed pistol license; (ii) of the time limits on the right to collateral
attack imposed by RCW 10.73.090 and .100; and (iii) if the defendant is
acquitted of a sex offense or kidnapping offense as defined in RCW 9A.44.130,
of the need to register as a sex offender or kidnapping offender.
(2) Form of Notice. The form shall be in substantially the following form:
SUPERIOR COURT OF WASHINGTON
FOR [ ] COUNTY
STATE OF WASHINGTON, ) No.
Plaintiff, ) NOT GUILTY BY REASON OF INSANITY
vs. ) ACQUITTEE'S NOTICE OF
) [X] FIREARM DISABILITY
_______________________, ) [X] TIME LIMITS ON COLLATERAL ATTACKS
Defendant. ) [ ] SEX OFFENDER OR KIDNAPPING
) [ ] OFFENDER REGISTRATION REQUIREMENTS
)
TO THE ABOVE-NAMED DEFENDANT:
You are hereby advised that you have been acquitted by reason of insanity
of the offense of ____________________.
YOU ARE ADVISED THAT YOU ARE TO IMMEDIATELY SURRENDER ANY FIREARM AND ANY
CONCEALED PISTOL LICENSE AND YOU MAY NOT POSSESS A FIREARM OR A CONCEALED
PISTOL LICENSE UNTIL YOUR RIGHT HAS BEEN RESTORED BY A COURT OF RECORD.
You are further advised that if you wish to petition or move for collateral
attack on any order of hospitalization or order mandating alternative treatment
less restrictive than detention in a state hospital, including but not limited
to any personal restraint petition, state habeas corpus petition, motion to
vacate judgment, motion to withdraw guilty plea, motion for new trial or motion
to arrest judgment, you must do so within one year of the final judgment in
this matter, except as provided for in RCW 10.73.100. In re Personal Restraint
of Well, 133 Wn.2d 433, 946 P.2d 750 (1997).
If the following numbered paragraphs apply, they should initialed by the
Defendant and the Judge.
1. General Applicability and Requirements. Because the offense which you have
been acquitted of committing by reason of insanity is classified as a sex
offense or kidnapping offense in RCW 9A.44.130, you will be required to
register with the sheriff of the county of the state of Washington where you
reside. If you are not a resident of Washington but you are a student in
Washington or you are employed in Washington or you carry on a vocation in
Washington, you must register with the sheriff of the county of your school,
place of employment, or vocation. You must register immediately upon being
acquitted by reason of insanity unless you are in custody, in which case you
must register at the time of your release with the person designated by the
agency that has you in custody and you must also register within 24 hours of
your release with the sheriff of the county of the state of Washington where
you will be residing, or if not residing in the state of Washington, where you
are a student, where you are employed, or where you carry on a vocation.
2. Offenders Who Leave the State and Return: If you leave this state
following your acquittal or release from custody but later move back to
Washington, you must register within three business days after moving to this
state or within 24 hours after doing so if you are under the jurisdiction of
this state's Department of Social and Health Services. If you leave this state
following your acquittal or release from custody, but later while not a
resident of Washington you become employed in Washington, carry on a vocation
in Washington, or attend school in Washington, you must register within three
business days after attending school in this state or becoming employed or
carrying out a vocation in this state, or within 24 hours after doing so if you
are under the jurisdiction of this state's Department of Social and Health Services.
3. Change of Residence Within State and Leaving the State: If you change your
residence within a county, you must send signed written notice of your change
of residence to the sheriff within 72 hours of moving. If you change your
residence to a new county within this state, you must send signed written
notice of the change of address at least 14 days before moving to the county
sheriff in the new county of residence and you must register with the sheriff
of the new county within 24 hours of moving. You must also give signed written
notice of your change of address to the sheriff of the county where last
registered within 10 days of moving. If you move out of Washington State, you
must send written notice within 10 days of moving to the new state or foreign
country to the county sheriff with whom you last registered in Washington State.
4. Additional Requirements Upon Moving to Another State: If you move to
another state, or if you work, carry on a vocation, or attend school in another
state you must register a new address, fingerprints, and photograph with the
new state within 10 days after establishing residence, or after beginning to
work, carry on a vocation, or attend school in the new state. You must also
send written notice within 10 days of moving to the new state or to a foreign
country to the county sheriff with whom you last registered in Washington State.
5. Notification Requirement When Enrolling in or Employed by a Public or
Private Institution of Higher Education or Common School (K-12): If you are a
resident of Washington and you are admitted to a public or private institution
of higher education, you shall, within 10 days of enrolling or by the first
business day after arriving at the institution, whichever is earlier, notify
the sheriff of the county of your residence of your intent to attend the
institution. If you become employed at a public or private institution of
higher education, You are required to notify the sheriff for the county of
your residence of your employment by the institution within 10 days of
accepting employment or by the first business day after beginning to work at
the institution, whichever is earlier. If your enrollment or employment at a
public or private institution of higher education is terminated, you are
required to notify the sheriff for the county of your residence of your
termination of enrollment or employment within 10 days of such termination. If
you attend, or plan to attend, a public or private school regulated under Title
28A RCW or chapter 72.40 RCW, you are required to notify the sheriff of the
county of your residence of your intent to attend the school. You must notify
the sheriff within 10 days of enrolling or 10 days prior to arriving at the
school to attend classes, whichever is earlier. The sheriff shall promptly
notify the principal of the school.
6. Registration by a Person Who Does Not Have a Fixed Residence: Even if you
do not have a fixed residence, you are required to register. Registration
must occur within 24 hours of release in the county where you are being
supervised if you not have a residence at the time of your release from
custody. Within 48 hours, excluding weekends and holidays, after losing your
fixed residence, you must send signed written notice to the sheriff of the
county where you last registered. If you enter a different county and stay
there for more than 24 hours, you will be required to register in the new
county. You must also report in person to the sheriff of the county where you
are registered on a weekly basis. The weekly report will be on a day specified
by the county sheriff's office, and shall occur during normal business hours.
You may be required to provide a list of the locations where you have stayed
during the last seven days. The lack of a fixed residence is a factor that may
be considered in determining a sex offender's risk level and shall make you
subject to disclosure to the public at large pursuant to RCW 4.24.550.
7. Reporting Requirements for Persons Who Are Risk Level II or III: If you
have a fixed residence and you are designated as a risk level II or III, you
must report, in person, every 90 days to the sheriff of the county where you
are registered. Reporting shall be on a day specified by the county sheriff's
office, and shall occur during normal business hours. If you comply with the
90-day reporting requirement with no violations for at least five years in the
community, you may petition the superior court to be relieved of the duty to
report every 90 days.
8. Application for a Name Change: If you apply for a name change, you must
submit a copy of the application to the county sheriff of the county of your
residence and to the state patrol not fewer than five days before the entry of
an order granting the name change. If you receive an order changing your name,
you must submit a copy of the order to the county sheriff of the county of your
residence and to the state patrol within five days of the entry of the order.
RCW 9A.44.130(7).
The warning regarding firearms has been read to the defendant.
DATED:
_________________________
Judge/Commissioner/Pro Tem
_____________________________
Defendant's Signature
Defendant's Last Name First Name Middle Name
_______________________________________________________________
List any aliases
_______________________________________________________________
Residential Street Address City State Zip
_______________________________________________________________
Date of Birth (month/date/year) Driver's License/ID Number
_______________________________________________________________
Race __________ Sex _______ Weight _______ Height ______
Eyes _________ Hair _________
Court NCIC # ___________________________________
Submit to: Dept. of Licensing, Business & Professions Firearms Unit,
PO Box 9649, Olympia, WA 98507-9649
(3) Record. A verbatim record of the notice of verdict return proceedings
shall be made. The clerk of the court shall forward a copy of the notice of
firearm disability to the Department of Licensing, Business & Professions Firearms Unit.
RULE CrR 7.1
PROCEDURES BEFORE SENTENCING
(a) Generally. At the time of, or within 3 days after, a plea, finding, or
verdict of guilt of a felony, the court may order that a risk assessment or
presentence investigation and report be prepared by the Department of Corrections,
when authorized by law. The court shall also then:
(1) Set a date, time, and place for sentencing in compliance with the time
requirements of RCW 9.94A.500;
(2) Order the defendant to return at the designated date, time, and place; and
(3) Set a date at least 10 days before sentencing for delivery of the risk
assessment or presentence report, if any, to the court, to the prosecuting
attorney, and to the defendant or defense counsel.
(b) Report. The report of the presentence investigation shall contain the
defendant's criminal history, as defined by RCW 9.94A.030, such information
about the defendant's characteristics, financial condition, and the
circumstances affecting the defendant's behavior as may be relevant in imposing
sentence or in the correctional treatment of the defendant, information about
the victim, and such other information as may be required by the court.
(c) Notice of New Evidence. At least 3 days before the sentencing hearing,
defense counsel and the prosecuting attorney shall notify opposing counsel and
the court of any part of the presentence report that will be controverted by
the production of evidence.
(d) Other Reports. Any interested person, as designated in RCW 9.94A.500,
may submit a report separate from that furnished by the Department of Corrections.
Comment
The rule is designed to implement RCW 9.94A.110 and related statutes
concerning the sentencing procedure. The entire rule is new; it replaces the
prior CrR 7.2, Presentence Investigation, portions of which are incorporated
into the new rule.
Section (a) is adapted from Minn. R. Crim. P. 27.03. The rule states that
the court may order a presentence investigation and report, giving the court a
measure of discretion to dispense with a report when the appropriate sentence
can readily be determined on the basis of the sentencing guidelines score
sheet. The rule codifies the existing practice of requiring the writer of the
report to send copies to counsel and to the court.
Section (b) is substantially the same as the prior rule, CrR 7.2(b). The
reference in the prior rule to the defendant's "prior criminal record" is
replaced by a reference to the defendant's "criminal history" in order to
parallel the statutory language.
The reference to "helpful" information is replaced by a reference to
"relevant" information because much of what is "helpful" under the prior rule
will become irrelevant under a system of presumptive sentencing.
Section (c) ensures that both parties will receive reasonable notice of any
intent to controvert the presentence report by the production of new evidence.
The combined effect of sections (a)(3) and (c) is that each party will have 7
days to examine the report before giving the required notice.
Section (d) makes it clear that persons who are permitted under RCW 9.94A.110
to present "argument" at sentencing may do so in writing.
Unlike the prior rule, CrR 7.2(c), the rule contains no provision
concerning the nondisclosure of "harmful" portions of the presentence report.
The Commission concluded that the provision was no longer necessary because
much of what might be "harmful" under the prior rule will no longer be relevant
under presumptive sentencing and will not be included in the report. If a
report under the presumptive sentencing system does contain information that
the court believes should be kept confidential, the court may fashion an
appropriate remedy on a case-by-case basis.
[Amended effective July 1, 1984; September 1, 1986; Amended effective February 28, 2006.]
RULE 7.2
SENTENCING
(a) Generally. The court shall state the precise terms of the sentence
and shall assure that the record accurately reflects all time spent in
custody in connection with the offense or behavioral incident for which
sentence is imposed. Pending such action the court may release or commit
the defendant, pursuant to rule 3.2.
(b) Procedure at Time of Sentencing. The court shall, immediately after
sentencing, advise the defendant: (1) of the right to appeal the
conviction; (2) of the right to appeal a sentence outside the standard
sentence range; (3) that unless a notice of appeal is filed within 30 days
after the entry of the judgment or order appealed from, the right to appeal
is irrevocably waived; (4) that the superior court clerk will, if requested
by the defendant appearing without counsel, supply a notice of appeal form
and file it upon completion by the defendant; (5) of the right, if unable
to pay the costs thereof, to have counsel appointed and portions of the
trial record necessary for review of assigned errors transcribed at public
expense for an appeal; and (6) of the time limits on the right to
collateral attack imposed by RCW 10.73.090 and .100. These proceedings
shall be made a part of the record.
(c) Record. A verbatim record of the sentencing proceedings shall be made.
(d) Judgment and Sentence. For every felony sentencing, the clerk of
the court shall forward a copy of the uniform judgment and sentence to the
Sentencing Guidelines Commission. The uniform judgment and sentence shall
be a form prescribed by the Administrator for the Courts in conjunction with
the Supreme Court Pattern Forms Committee. If the sentence imposed departs
from the applicable standard sentence range, the court's written findings
of fact and conclusions of law shall also be supplied to the Commission.
Comment
The prior rule, CrR 7.1, is adopted as CrR 7.2.
In section (a), the added language is suggested by Minn. R. Crim. P.
27.03. The deleted language addressed matters that are now covered in more
detail in RCW 9.94A.110.
Section (b) is the same as the corresponding section in the prior rule,
except that subsections (1) and (2) are modified to reflect the provisions
of RCW 9.94A.210.
Section (c), concerning the withdrawal of a guilty plea, is deleted. In
the existing rules, the point is covered in both CrR 4.2 and CrR 7.1. (See
rule 4.2.) The language of the two provisions differs, but they appear to
be the same in substance. There is no apparent distinction between the two
provisions in the cases that have interpreted them. No loss of substance
occurs when the provision in CrR 7.1 is deleted, leaving the point governed
by CrR 4.2.
Section (c) is suggested by Minn. R. Crim. P. 27.03.
Section (d) is suggested by Minn. R. Crim. P. 27.03.
RULE 7.3
JUDGMENT
A judgment of conviction shall set forth whether defendant was
represented by counsel or made a valid waiver of counsel, the plea, the
verdict or findings, and the adjudication and sentence. The court may order
that its sentence include special conditions or requirements, including a
specified schedule for the payment of a fine, restitution, or other costs,
or the performance of community service. If the defendant is found not
guilty or for any other reason is entitled to be discharged, judgment shall
be entered accordingly. The judgment shall be signed by the judge and
entered by the clerk.
Comment
The rule codifies the existing practice allowing the court to impose
special conditions on its sentence. The rule makes it clear that special
conditions, including a specified schedule, may likewise be imposed with
respect to an order for community service, restitution, or costs. (See RCW
9.94A.200, referring to terms and conditions of restitution.)
The rule is, of course, subject to any statutory restrictions on the
court's sentencing authority. For example, a statute requires that a
sentence of confinement for more than 60 days must be served on consecutive
days (RCW 9.94A.120). The rule would not permit the court to order that
such a sentence be served on intermittent days.
RULE 7.4
ARREST OF JUDGMENT
(a) Arrest of Judgments. Judgment may be arrested on the motion of the
defendant for the following causes: (1) Lack of jurisdiction of the person
or offense; (2) the indictment or information does not charge a crime; or
(3) insufficiency of the proof of a material element of the crime.
(b) Time for Motion; Contents of Motion. A motion for arrest of
judgment must be served and filed within 10 days after the verdict or
decision. The court on application of the defendant or on its own motion
may in its discretion extend the time until such time as judgment is
entered.
The motion for arrest of judgment shall identify the specific reasons
in fact and law as to each ground on which the motion is based.
(c) New Charges After Arrest of Judgments. When judgment is arrested
and there is reasonable ground to believe that the defendant can be
convicted of an offense properly charged, the court may order the defendant
to be recommitted or released to answer a new indictment or information. If
judgment was arrested because there was no proof of a material element of
the crime the defendant shall be dismissed.
(d) Rulings on Alternative Motions in Arrest of Judgment or for a New
Trial. Whenever a motion in arrest of a judgment and, in the alternative,
for a new trial is filed and submitted in any superior court in any
criminal cause tried before a jury, and the superior court enters an order
granting the motion in arrest of judgment, the court shall, at the same
time, in the alternative, pass upon and decide in the same order the motion
for a new trial. The ruling upon the motion for a new trial shall not
become effective unless and until the order granting the motion in arrest
of judgment is reversed, vacated, or set aside in the manner provided by
law.
RULE 7.5
NEW TRIAL
(a) Grounds for New Trial. The court on motion of a defendant
may grant a new trial for any one of the following causes when it
affirmatively appears that a substantial right of the defendant
was materially affected:
(1) Receipt by the jury of any evidence, paper, document or
book not allowed by the court;
(2) Misconduct of the prosecution or jury;
(3) Newly discovered evidence material for the defendant,
which the defendant could not have discovered with reasonable
diligence and produced at the trial;
(4) Accident or surprise;
(5) Irregularity in the proceedings of the court, jury or
prosecution, or any order of court, or abuse of discretion, by
which the defendant was prevented from having a fair trial;
(6) Error of law occurring at the trial and objected to at
the time by the defendant;
(7) That the verdict or decision is contrary to law and the
evidence;
(8) That substantial justice has not been done. When the
motion is based on matters outside the record, the facts shall be
shown by affidavit.
(b) Time for Motion; Contents of Motion. A motion for new
trial must be served and filed within 10 days after the verdict
or decision. The court on application of the defendant or on its
own motion may in its discretion extend the time. The motion for
a new trial shall identify the specific reasons in fact and law
as to each ground on which the motion is based.
(c) Time for Affidavits. When a motion for a new trial is
based upon affidavits they shall be served with the motion. The
prosecution has 10 days after such service within which to serve
opposing affidavits. The court may extend the period for
submitting affidavits to a time certain for good cause shown or
upon stipulation.
(d) Statement of Reasons. In all cases where the court grants
a motion for a new trial, it shall, in the order granting the
motion, state whether the order is based upon the record or upon
facts and circumstances outside the record which cannot be made a
part thereof. If the order is based upon the record, the court
shall give definite reasons of law and facts for its order. If
the order is based upon matters outside the record, the court
shall state the facts and circumstances upon which it relied.
(e) Disposition of Motion. The motion shall be disposed of
before judgment and sentence or order deferring sentence.
RULE 7.6
PROBATION
(a) Probation. After conviction of an offense the defendant
may be placed on probation as provided by law.
(b) Revocation of Probation. The court shall not revoke
probation except after a hearing in which the defendant shall be
present and apprised of the grounds on which such action is
proposed. The defendant is entitled to be represented by counsel
and may be released pursuant to CrR 3.2 pending such hearing.
Counsel shall be appointed for a defendant financially unable to
obtain counsel.
RULE 7.7
POST-CONVICTION RELIEF
(RESCINDED)
RULE CrR 7.8
RELIEF FROM JUDGMENT OR ORDER
(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other
parts of the record and errors therein arising from oversight or omission
may be corrected by the court at any time of its own initiative or on the
motion of any party and after such notice, if any, as the court orders.
Such mistakes may be so corrected before review is accepted by an appellate
court, and thereafter may be corrected pursuant to RAP 7.2(e).
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence;
Fraud; etc. On motion and upon such terms as are just, the court may
relieve a party from a final judgment, order, or proceeding for the
following reasons:
(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity
in obtaining a judgment or order;
(2) Newly discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under rule 7.5;
(3) Fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;
(4) The judgment is void; or
(5) Any other reason justifying relief from the operation of the
judgment.
The motion shall be made within a reasonable time and for reasons (1) and
(2) not more than 1 year after the judgment, order, or proceeding was
entered or taken, and is further subject to RCW 10.73.090, .100, .130, and
.140. A motion under section (b) does not affect the finality of the
judgment or suspend its operation.
(c) Procedure on Vacation of Judgment.
(1) Motion. Application shall be made by motion stating the grounds upon
which relief is asked, and supported by affidavits setting forth a concise
statement of the facts or errors upon which the motion is based.
(2) Transfer to Court of Appeals. The court shall transfer a motion filed
by a defendant to the Court of Appeals for consideration as a personal
restraint petition unless the court determines that the motion is not
barred by RCW 10.73.090 and either (i) the defendant has made a substantial
showing that he or she is entitled to relief or (ii) resolution of the
motion will require a factual hearing.
(3) Order to Show Cause. If the court does not transfer the motion to the
Court of Appeals, it shall enter an order fixing a time and place for
hearing and directing the adverse party to appear and show cause why the
relief asked for should not be granted.
[Adopted effective September 1, 1986; amended effective September 1, 1991;
June 24, 2003; September 1, 2007.]
RULE 8.1
TIME
Time shall be computed and enlarged in accordance with CR 6.
RULE 8.2
MOTIONS
Rules 3.5 and 3.6 and CR 7(b) shall govern motions in criminal cases.
CrR 8.3
DISMISSAL
(a) On Motion of Prosecution. The court may, in its discretion, upon
written motion of the prosecuting attorney setting forth the reasons therefor,
dismiss an indictment, information or complaint.
(b) On Motion of Court. The court, in the furtherance of justice, after
notice and hearing, may dismiss any criminal prosecution due to arbitrary
action or governmental misconduct when there has been prejudice to the rights
of the accused which materially affect the accused's right to a fair trial.
The court shall set forth its reasons in a written order.
(c) On Motion of Defendant for Pretrial Dismissal. The defendant may,
prior to trial, move to dismiss a criminal charge due to insufficient evidence
establishing a prima facie case of the crime charged.
(1) The defendant's motion shall be in writing and supported by an
affidavit or declaration alleging that there are no material disputed facts and
setting out the agreed facts, or by a stipulation to facts by both parties. The
stipulation, affidavit or declaration may attach and incorporate police
reports, witness statements or other material to be considered by the court
when deciding the motion to dismiss. Any attached reports shall be redacted if
required under the relevant court rules and statutes.
(2) The prosecuting attorney may submit affidavits or declarations in
opposition to defendant's supporting affidavits or declarations. The affidavits
or declarations may attach and incorporate police reports, witness statements
or other material to be considered by the court when deciding defendant's
motion to dismiss. Any attached reports shall be redacted if required under the
relevant court rules and statutes.
(3) The court shall grant the motion if there are no material disputed
facts and the undisputed facts do not establish a prima facie case of guilt. In
determining defendant's motion, the court shall view all evidence in the light
most favorable to the prosecuting attorney and the court shall make all
reasonable inferences in the light most favorable to the prosecuting attorney.
The court may not weigh conflicting statements and base its decision on the
statement it finds the most credible. The court shall not dismiss a sentence
enhancement or aggravating circumstance unless the underlying charge is subject
to dismissal under this section. A decision denying a motion to dismiss under
this rule is not subject to appeal under RAP 2.2. A defendant may renew the
motion to dismiss if the trial court subsequently rules that some or all of the
prosecuting attorney's evidence is inadmissible.
(4) If the defendant's motion to dismiss is granted, the court shall enter a
written order setting forth the evidence relied upon and conclusions of law.
The granting of defendant's motion to dismiss shall be without prejudice.
[Amended effective September 1, 1995; September 1, 2008.]
Comment
Supersedes RCW 10.46.090.
RULE 8.4
SERVICE, FILING, AND SIGNING OF PAPERS
CR 5 shall govern service and filing of written motions (except those
heard ex parte) in criminal causes. All pleadings, motions, and legal
memoranda signed by an attorney shall include the attorney's Washington
State Bar Association membership number in the signature block.
RULE 8.5
CALENDARS
In setting cases for trial, unless otherwise provided by statute,
preference shall be given to criminal over civil cases, and criminal cases
where the defendant or a witness is in confinement shall have preference
over other criminal cases.
RULE 8.6
EXCEPTIONS UNNECESSARY
CR 46 shall govern exceptions to rulings and orders in criminal cases.
RULE 8.7
OBJECTIONS
Objections in criminal causes shall be taken as in civil causes.
RULE 8.8
DISCHARGE
Upon acquittal, or whenever the court shall direct any criminal
prosecution to be dismissed, the defendant shall be released from custody
or conditions of release on such charge and any bail shall be exonerated.
Comment
Supersedes RCW 10.64.090.
CrR 8.9
CHANGE OF JUDGE
Any right under RCW 4.12.050 to seek disqualification of a
judge will be deemed waived unless, in addition to the
limitations in the statute, the motion and affidavit is filed
with the court no later than thirty days prior to trial before a
preassigned judge. If a case is reassigned to a different judge
less than forty days prior to trial, a party may then move for a
change of judge within ten days of such reassignment, unless the
moving party has previously made such a motion.
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