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• Proposed Changes to CrR 4.4 - Severence of Offenses and Defendants (in Word Format)
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Suggested Amendment to Superior Court Criminal Rule (CrR) 4.4
concerning Severance of Offenses and Defendants

Submitted by the Board of Governors of the Washington State Bar Association

Purpose: Failure of a trial court to exclude an incriminating statement of a nontestifying codefendant may violate a criminal defendant’s constitutional right to confront adverse witnesses. See Bruton v. United States, 391 U.S. 123 (1968). To address this issue, CrR 4.4(c)(1) provides that a defendant’s motion to sever under these circumstances will be granted unless:

1. the prosecuting attorney elects not to offer the statement in the case in chief;

2. deletion of all references to the moving defendant will eliminate any prejudice to him from the admission of the statement.

There is neither an “and” nor an “or” between subsections (i) and (ii) of this rule, apparently a drafting or typographical error existing since its inception. (By contrast, paragraph (c)(2) of the rule, which is similarly structured, contains two subsections (i) and (ii), with the term “or” appearing between them.)

It has been assumed that the options presented in subsections (c)(1)(i) and (c)(1)(ii) of CrR 4.4 are disjunctive, i.e, that if the defendant moves for severance, the prosecutor may elect to either (1) abandon the statement as evidence in the state’s case, or (2) admit the statement only after deleting all references to the moving defendant. See Royce A. Ferguson, 12 Washington Practice Series: Criminal Practice and Procedure § 1712 (3d ed. 2004) (motion will be granted “unless either the prosecuting attorney elects not to offer the statement in the case in chief or deletion of all references to the moving defendant will eliminate any prejudice to him from the admission of the statement”).

Nevertheless, the rule in its present form has generated confusion and controversy. In State v. Medina, 112 Wn. App. 40, 48 P.3d 1005 (2002), for example, the Court of Appeals used the term “and” when describing the CrR 4.4(c)(1) alternatives. The court ultimately held, however, that CrR 4.4(c)(1) severance was not required because subsection (ii) alone had been satisfied by the prosecution’s redaction of the statement at issue. But the Medina court’s mistaken description of the rule was cited in a recent appeal in which the defendant expressly argued that the term “and” rather than “or” should be implied in paragraph (c)(1). See State v. Vincent, 131 Wn. App. 147, 120 P.3d 120 (2005) (resolving case without reaching the CrR 4.4(c)(1) issue).

The amendment inserting “or” between the CrR 4.4(c)(1)(i) and (ii) will clarify the intent of the rule and prevent further disputes arising from an arguable ambiguity.