Proposed Rules Archives

• Proposed New Rule CrR 4.11 - Recording Witness Interviews (in Word Format)
• Comments Received for CrR 4.11 - Recording Witness Interviews

Purpose: Changes to the Criminal Rules to permit recording of witness interviews were originally suggested by the Washington Association of Criminal Defense Lawyers in 2002. At the recommendation of the WSBA Court Rules and Procedures Committee, the WSBA Board of Governors approved a modified version of the suggested changes in January 2004 and submitted the suggested changes to the Supreme Court. The Court returned the proposal to the Court Rules and Procedures Committee and requested that the WSBA consider written comments received by the Court and work with other interested organizations in developing a revised rule. A revised version of the rule was submitted to the Court in 2006. The Court published the rule for comment, and several groups voiced strong opposition to the proposed rule. Since then, additional experience with voluntary audio recording of witness interviews has alleviated many of the concerns of those groups. Consequently, audio recording has become more widely accepted by practitioners in the criminal courts.

The purpose of the rule is to enable parties to preserve an accurate audio record of pretrial witness interviews in criminal cases. Because witness depositions are not permitted in criminal cases without the trial court’s permission, witness interviews have traditionally been documented by handwritten notes of attorneys and private investigators. However, this method has proved less than satisfactory because of frequent disputes over what witnesses actually said and the accuracy of the notes. These disputes were difficult to definitively resolve because the finders of fact only had the words of the witnesses against private investigators and police.

The previous opposition to the recording rule was based on several concerns. The first was that electronic recording violated witnesses’ rights under the Washington State Privacy Act. However, upon further consideration, most stakeholders now believe that the Privacy Act is not violated by recording witness interviews because the Act only prohibits the non-permissive electronic recording of “private” conversations. Given that one of the major purposes of these interviews is for impeachment at trial if the witnesses’ testimony changes, and there are often several people present at the interviews, the interviews are not considered to be private within the meaning of the Privacy Act.

Second, some felt that electronic audio recording of witness interviews, especially of putative victims, without their permission, would be traumatic or intimidating to victims. However, additional experience with electronic audio recording has shown that it is the interviews themselves, rather than the recording of those interviews, that can be upsetting to witnesses.

It is now more widely believed that recording interviews can provide a benefit to witnesses and opposing parties because it can prevent misunderstandings or misrepresentations of what witnesses said in their interviews. Additionally, because audio recording records the interviewers as well as the witnesses, it encourages a professional atmosphere in the interviews.

Lastly, it has been suggested that because participation in witness interviews is entirely voluntary, so too should be a witnesses’ decision to permit recording. However, it is recognized that defendants have the constitutional right to have their counsel or investigators interview material witnesses in preparation for trial. Indeed, defense counsel have the ethical and professional obligation to conduct these interviews. Since material witness interviews will usually take place for matters that proceed to trial, creating accurate records of these interviews can only enhance the court’s truth finding function.

The Committee, including some former opponents of the proposed rule, believe that the positive benefits of having accurate records of witness interviews outweighs many of the perceived negatives. The proposed recording rule has been carefully drafted and revised so as to not change any other discovery rights and obligations concerning witness interviews and statements that currently exist under the Criminal Rules. The disclosure and use of electronically recorded interviews is confined to the parties and only what is necessary to conduct the parties’ cases. Possession of electronic recordings of witness interviews will continue to be governed by CrR 4.7(h), which provides that they cannot be given to defendants without the agreement of prosecutors or by court order.

In recognition of the sensitivity of the interview content, the proposed rule now contains a specific prohibition on dissemination of the audio recording or transcripts except where required to satisfy the discovery obligations of CrR 4.7, pursuant to court order after a showing of good cause relating solely to the criminal case at issue, or as reasonably necessary to conduct a party’s case. Objections to taking a statement or the protocol for recording are expressly subject to oversight of a superior court judge pursuant to the protective order provisions of CrR 4.7(h).

The rule prescribes information that must be provided on the tape/recording at the commencement of the interview. It also provides that the person interviewed and all parties are entitled to copies of the interview.

In summary, the concerns of many who originally opposed proposed CrR 4.11 have been alleviated by additional years of experience with electronic audio recording of witness interviews. Consequently, given the many benefits of having accurate records of pretrial witness interviews, the Board believes it is appropriate to submit this new version of the rule to the Court for consideration.