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• Proposed Changes to CrR 4.7 - Discovery (in Word Format)
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Suggested Amendment to Superior Court Criminal Rule (CrR) 4.7
concerning Discovery

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

Purpose: This suggested amendment is designed to correct an apparent typographical error in subsection (a)(1)(vi) of CrR 4.7. The subsection requires the prosecuting attorney, as part of the general discovery obligation in a criminal case, to disclose “any record or prior criminal convictions known to the prosecuting attorney of the defendant and of person whom the prosecuting attorney intends to call as witnesses at the hearing or trial.” (Emphasis added). All indications are that the “or” should be an “of.” The corresponding rule for the Courts of Limited Jurisdiction, CrRLJ 4.7(a)(1)(v), requires the prosecuting authority to disclose “any record of prior criminal convictions known to the prosecuting authority of the defendant and of persons whom the prosecuting authority intends to call as witnesses at the hearing or trial.” (Emphasis added). In practice, lawyers treat the “or” as an “of.” See, e.g., Royce A. Ferguson, 12 Washington Practice Series: Criminal Practice and Procedure § 1306 (3d ed. 2004) (“The prosecuting attorney is required to disclose to the defendant the following material and information within his possession and control no later than the omnibus hearing: . . . any record of prior criminal convictions known to the prosecuting attorney of the defendant and of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial.”). The error has existed since the Criminal Rules were adopted in 1973.

In crafting what would become the Superior Court Criminal Rules, the Washington Judicial Council Criminal Rules Task Force drafted the provision to read: “Any record of prior criminal convictions known to the prosecuting attorney of the defendant and of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial.” Criminal Rules Task Force to the Washington Judicial Council, Washington Proposed Rules of Criminal Procedure Rule 4.7(a)(1)(vi), at 70 (1971) (emphasis added). The provision was derived from a corresponding ABA discovery standard, which required disclosure of “any record of prior criminal convictions of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial.” Id. at 79 (quoting American Bar Association, Standards Relating to Discovery and Procedure Before Trial § 2.1(a)(vi) (Approved Draft 1970)) (emphasis added). When Washington’s Criminal Rules were adopted and published, however, the “of” had become an “or.” See Criminal Rules for Superior Court, 82 Wn.2d 1114, 1143 (1973). This appears to have been a typographical error.

The intent of this provision is to do no more than require the prosecution to disclose records “of prior criminal convictions.” It is applied and interpreted in that fashion. There appears to be no argument or authority to the contrary. Therefore, it is recommended that subsection (a)(1)(vi) of CrR 4.7 be amended to change the “or” to an “of”.