GR 9 COVER SHEET

Suggested Changes to CrRLJ 4.8

(A)             Name of Proponent: Washington Defender Association

(B)              Spokesperson: Magda Baker, Misdemeanor Resource Attorney, Washington Defender Association

(C)             Purpose: Both CrRLJ 4.8 and CrR 4.8 govern the issuance of subpoenas in criminal cases, but their wording and content differs. We suggest this court make the two rules more similar by replacing the wording of current CrRLJ 4.8 with the wording of CrR 4.8 and then adding two pieces of text that address circumstance in courts of limited jurisdiction.

Many differences between CrR 4.8 and current CrRLJ 4.8 are merely stylistic, but two are substantive. First, the superior court rule includes more specific requirements for the form and service of subpoenas. Second, the superior court rule allows both lawyers and judges to sign subpoenas duces tecum, while the rule for courts of limited jurisdiction allows only judges to sign.

CrR 4.8 gives more specific guidance than current CrRLJ 4.8. Replacing the wording of the current rule for courts of limited jurisdiction with that of the superior court rule would give structure and guidance to judges and litigants. The superior court rule gives direction in several areas that the rule for courts of limited jurisdiction does not address or mentions more vaguely:

·         CrR 4.8(a)(1)(A) and (b)(1)(A) list information subpoenas must include, while CrRLJ 4.8 does not.

·         CrR 4.8(a)(4) explains when a subpoenaed witness is excused, while CrRLJ 4.8 does not.

·         CrR 4.8(b)(2) requires advanced notice before a party serves a subpoena duces tecum on a defendant or complaining witness, while CrR 4.8 does not. 

·         CrR 4.8(b)(4) lists specific circumstances under which a court must quash or modify a subpoena, while CrRLJ 4.8(b)(2) includes more vague and limited criteria.

·         CrR 4.8(a)(3) and (b)(3) require witnesses to waive personal service before service by mail is complete, while CrRLJ 4.8(c) says service is complete three days after the day a subpoena is mailed.

The second major difference between CrR 4.8 and CrRLJ 4.8 is that the rule for courts of limited jurisdiction requires judges to sign all subpoenas duces tecum, whereas the superior court rule requires judges to sign subpoenas duces tecum only if they are for inspection of premises. Compare current CrRLJ 4.8(b), with CrR 4.8(b)(2). We are concerned that some defense attorneys in courts of limited jurisdiction are hesitant to use subpoenas duces tecum because the process for getting judicial approval can be cumbersome and could require them to disclose information about their clients’ cases. Getting a judicial signature on a subpoena duces tecum can be slow and time consuming. Many courts of limited jurisdiction require counsel to give the court clerk a physical copy of the subpoena, wait days for judicial review and then pick up the signed subpoena in person. Lawyers must also sometimes explain the relevance of the documents they seek, which can require disclosure of their thoughts about a case.

Finally, we propose that this court include two additions to the wording of CrR 4.8 in CrRLJ 4.8. First, current CrRLJ 4.8(a) requires that judges sign subpoenas for witnesses outside the county or counties not contiguous with it. We suggest including that requirement with an alteration in an amended CrRLJ 4.8. The alteration we propose would let lawyers in courts of limited jurisdiction sign subpoenas for police, Department of Licensing employees and laboratory employees anywhere in the state. Second, CrR 4.8(c) says simply that a court may hold a person who fails to obey a subpoena without adequate excuse in contempt. We ask this court to include the wording of current CrRLJ 4.8(e)(2) in an amended CrRLJ 4.8. That wording says that a court may not hold a subpoenaed witness in contempt or issue a material witness warrant unless there is proof the witness personally received a subpoena. These two additions would help guide judges and new lawyers in busy, high volume courts.   

(D) Hearing: None recommended.

(E) Expedited Consideration: Expedited consideration is not requested.