GR 9 COVER SHEET

Suggested Amendment to

WASHINGTON STATE COURT RULES:

CRIMINAL RULES FOR COURTS OF LIMITED JURISDICTION

RULE 3.4

PRESENCE APPEARANCE OF THE DEFENDANT

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A.        Name of Proponent:             District and Municipal Courts Judges’ Association

(DMCJA)

B.        Spokesperson:                       Judge Charles Short, President, DMCJA

C.        Purpose:         Two recent events have prompted the District and Municipal Courts Judges’ Association (DMCJA) to propose revisions to the current CrRLJ 3.4.  First, the global pandemic and associated Washington Supreme Court orders loosening restrictions on virtual or remote hearings have forced courts of limited jurisdiction to explore new ways to conduct court business to provide greater access to justice and to facilitate court operations.  Most courts in the state made large investments to advance technology in the courtrooms to make these hearings not only possible but even desirable for certain types of hearings.  Allowing remote appearance for many hearings has decreased the financial impact of criminal charges on many defendants by allowing defendants to appear in court without taking time off from work or arranging childcare for their family.  It has also increased efficiency of courts by allowing attorneys to appear in courts in different jurisdictions without the need to travel between the courts.  These advancements justify a broadening of the rule allowing for remote appearance by defendants.

Second, the recent Court of Appeals decision in State v. Gelinas, 15 Wn. App. 2d 484, 478 P.3d 638 (2020), has caused considerable confusion surrounding when courts of limited jurisdiction may require a defendant’s physical appearance for certain types of hearings and when these courts have the authority to issue a bench warrant for nonappearance.  The revisions in this rule are designed to codify the primary holding of Gelinas: that a defendant may appear through counsel for many types of hearings and that a court of limited jurisdiction may not issue a bench warrant for the defendant’s failure to personally appear when counsel is appearing on their behalf.

            These changes proposed by the DMCJA continue current appearance opportunities for defendants and allow limited jurisdiction courts to manage calendars and trial terms.  Some language changes are proposed for clarity or grammar purposes.  The current rule uses the terms “required” and “necessary,” resulting in lack of clarity.  CrRLJ 3.3(c)(2)(ii) uses the term “required” when discussing the restarting of a commencement date.  For clarity and consistency, the proponent recommends using “required” in place of “necessary.”  The current version of CrRLJ 3.4 also uses the terms “presence” and “appearance.”  For consistency and clarity, the proponent recommends using “appearance” or “appear” throughout the rule. 

·         Paragraph (a) is revised to clarify that an appearance by the defendant (or their attorney) is required at all hearings.  This change allows the court to manage trial and pretrial calendars while still permitting the defendant to appear through counsel. 

·         New paragraph (b) defines what “appearance” means for purposes of this rule.  This definition section clarifies that there are three ways in which a defendant may “appear” in court – in person, by video or remote appearance, and through counsel. 

·         Paragraph (c) is retitled “When Physical Appearance Is Required.”  This clarifies that for certain types of necessary hearings, appearing only through counsel is not permitted.  Thus, the defendant’s physical or remote appearance is required at the hearings listed.  The revisions here also incorporate a separate holding of Gelinas by clarifying that a trial court may find good cause to require a defendant’s personal appearance at certain types of hearings other than those explicitly listed.  Finally, these revisions now allow a trial court to permit remote appearance of the defendant for required appearances.

·         Paragraph (d) is identical to former paragraph (c), with the exception that it changes “by its lawyer” to “through counsel” to make the language consistent with the definitions in the new paragraph (b).

·         Paragraph (e) clarifies that a trial court has the authority to issue a bench warrant if no appearance is made by the defendant.  In other words, if a defendant fails to appear, and a defense attorney does not appear or appears but has no authority to act on behalf of the client and no information as to why the defendant is not present, the trial court has the discretion to issue a bench warrant.  This is consistent with the Gelinas holding that a trial court may issue a warrant for a defendant’s failure to appear only if the defendant’s appearance was necessary to advance the case.  If neither a defendant nor an attorney appear at a hearing, a hearing cannot take place and thus the case cannot advance. 

            Finally, the DMCJA recommends moving former paragraphs (e) and (f) related to “videoconference” proceedings to a new ARLJ or GR.  The pandemic forced, and the Supreme Court’s emergency orders permitted, courts around the state to adopt new methods and invest in technology to improve the quality and efficiency of video or remote hearings.  The location within the rules of the current remote hearing guidelines could be interpreted as limiting their application to pretrial proceedings.  A new ARLJ or GR would be able to address remote hearing requirements for all civil, infraction, and criminal proceedings.  General remote hearing guidelines could be established with the ability of local courts to adopt procedures consistent with their access to technology. 

Because of the benefits of this proposal, the efficiency of video proceedings, the holding in Gelinas, and the aid of general language clarification, the DMCJA requests adoption of the proposed amendments.

D.        Hearing:  A hearing is not recommended.

E.        Expedited Consideration:  Expedited consideration is requested because of the change in the law and to facilitate the continuation of video proceedings.