GR 9 COVER SHEET

Suggested Amendment to
WASHINGTON STATE COURT RULES:
CRIMINAL RULES FOR COURTS OF LIMITED JURISDICTION

Amend CrR 3.4: Presence of the Defendant

Submitted by the SB 5177 (Court Video Testimony) Work Group

A. Name of Proponent: SB 5177 (Court Video Testimony) Work Group

B. Spokesperson: Judge Ronald Kessler, Work Group Chair

C. Purpose: CrR 3.4 governs issues regarding the presence of the defendant in Courts of Limited Jurisdiction.  Senate Bill 5177, section 13, requested the Administrative Office of the Courts to convene and staff a work group “to consider and facilitate the use of video testimony by state competency evaluators and other representatives of the department of social and health services and the state hospitals in court matters under chapter 10.77 RCW”.  The work group was requested to complete its work by June 30, 2016.

The Administrative Office of the Courts formed a work group comprised of representatives from the Superior Court Judges’ Association (SCJA), the District and Municipal Court Judge’s Association, the Association of Washington Superior Court Administrators, the Washington Association of Prosecuting Attorneys, Disability Rights Washington, the Department of Social and Health Services (Western and Eastern State Hospitals), Washington State Association of County Clerks, the District and Municipal Court Management Association, Washington Defender Association, and the Washington State Association of Counties.

The Work Group met over the course of several months. Discussion included the question of whether or not the Confrontation Clauses were implicated. While courts have applied the Confrontation Clause to some pretrial hearings, it appears that the issue is whether or not the purpose of the hearing “retains a direct relationship with the trial,” Kentucky v. Stincer, 482 U.S. 730, 740, 107 S. Ct. 2658, 2664, 96 L. Ed. 2d 631 (1987), Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), United States v. Hamilton, 107 F.3d 499, 506 (7th Cir.1997), United States v. Algere, 457 F. Supp. 2d 695, 700 (E.D. La. 2005), United States v. Makris, 398 F.Supp. 507, 509-11 (D.C.Tex.1975), aff'd, 535 F.2d 899 (5th Cir.1976). The Work Group decided to request the proposed rule amendment. The proposed amendment presumes that the forensic evaluator will appear by video in hearings under 10.77 RCW.  The proposed amendment assumes that all other parties will be physically present in the courtroom for the hearing.  A party can file a written motion objecting to the hearing being conducted by video conference.  The Department of Social and Health Services has some funding that may be available to assist courts in the purchase of video conference equipment.

Appearing by video allows the forensic evaluators to minimize travel time and maximize time spent conducting evaluations.  It is hoped that this increased efficiency will shorten the amount of time a defendant spends waiting for an evaluation and that when necessary, the competency restoration process can begin earlier. 

This proposed amendment was deemed necessary because the current rule would require the agreement of the parties and the approval of the trial court judge before conducting a competency hearing under 10.77 RCW.  The Work Group did not believe this provision would provide the desired effect of making the competency hearing process more efficient and timely. 

The Work Group requests that this proposed amendment be considered as expeditiously as possible.