CrR 4.6 - Depositions

Comments for CrR 4.6 must be received no later than April 30, 2012.

GR 9 Cover Sheet

Suggested Amendment
SUPERIOR COURT CRIMINAL RULES (CrR)
Rule 4.6: Depositions

Submitted by the Superior Court Judges Association

Purpose: The ability to obtain a deposition in a criminal case in Washington courts is more limited than in other jurisdictions1. The current rule only allows depositions where it appears that a prospective witness will be unavailable at trial or if the witness "refuses to discuss the case with either counsel." CrR 4.6(a). The Court of Appeals strictly construed this language in a recent case, holding the trial court erred in ordering the depositions of police officer witnesses who refused to allow defense counsel to tape record their pretrial interviews. State v. Mankin, 158 Wn. App. 111, 124-25, 241 P.3d 421 (2010). The Mankin court stated that, under CrR 4.6(a), refusing to participate in a taped interview does not constitute a refusal to discuss the case with counsel. Id. at 121.

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

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

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

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