Proposed Rules Archives

• Proposed Changes to CrR 3.1 - Right To and Assignment of Lawyer (in Word Format)
• Comments Received for CrR 3.1 - Right To and Assignment of Lawyer

GR 9 Cover Sheet

Suggested Changes to CrR 3.1, CrRLJ 3.1, JuCR 9.3 and GR 15

(A) Name of Proponent: Washington Defender Association

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

(C) Purpose: The Washington Defender Association (WDA) suggests changes to CrR 3.1(f), CrRLJ 3.1(f), and JuCR 9.3(a) that would ensure that criminal defense attorneys who request funds for experts on behalf of indigent clients in superior courts, courts of limited jurisdiction, and juvenile courts do so ex parte and would require that those courts seal such requests. WDA also suggests a change to GR 15(c)(1) that would allow defenders representing clients in juvenile court to move to seal motions for expert funding without giving notice to opposing parties and crime victims, as defenders in superior courts and courts of limited jurisdiction may currently do.

Such changes would allow defense attorneys to pursue necessary experts without sharing their developing trial strategies with opposing counsel. This in turn would protect the rights of criminal defendants to both necessary expert assistance and fair trials. The Sixth Amendment right to effective assistance of counsel “includes expert assistance necessary to an adequate defense.” State v. Punsalan, 156 Wn.2d 875, 878 133 P.3d 934 (2006) (citing Ake v. Oklahoma, 470 U.S. 68, 76, 83 105 S. Ct. 1087, 84 L. Ed 2d 53 (1985); U.S. Const. amend.VI. For counsel to effectively represent a client in a fair trial, “it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” Hickman v. Taylor, 329 U.S. 495, 510 67 S. Ct. 385, 91 L. Ed. 451 (1947). The Washington Supreme Court has recognized that “[t]he public’s right of access [to court records and other information] may be limited to protect other significant and fundamental rights, such as a defendant’s right to a fair trial.” State v. McEnroe, 174 Wn.2d 795, 801 279 P.3d 861 / 93 P.3d 861 (2012) (citing Dreiling v. Jain, 151 Wn.2d 900, 909 279 P.3d 861 / 93 P.3d 861 (2004)). These related rule changes would make it possible for indigent defendants to simultaneously have the assistance of experts when necessary and to confidentially develop trial strategies, as is necessary to fair trials.

(D) Hearing: None recommended.

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