Time-for-Trial Final Report

2. Discussion of Consensus Recommendations.
   • Terminology
   • The Dilemma - Flexible Rule Versus Strict Rule
   • Proposed Subsection (a)(1) (Responsibility of Court)
   • Proposed Subsection (a)(2) (Precedence of Criminal Trials)
   • Proposed Subsection (a)(3) (Definitions) (new provision)
   • Proposed Subsection (a)(4) (Construction of Rule) (new provision)
   • Proposed Subsection (a)(5) (Related Charges) (new provision)
   • Proposed Subsection (a)(6) (Reporting of Dismissals and Untimely Trials) (new provision)
   • Proposed Subsections (b)(1) through (b)(4) (Time Periods for Bringing Cases to Trial)
   • Proposed Subsection (b)(5) (Allowable Time After Excluded Period) (new provision)
   • Proposed Section (c) ("Commencement Date") (new provision)
   • Proposed Section (d) (Trial Settings and Notice-Objections-Loss of Right to Object)
   • Proposed Section (e) (Excluded Periods)
   • Proposed Subsection (f)(1) (Continuance-Written Agreement)
   • Proposed Subsection (f)(2) (Continuance-Motion By the Court or a Party)
   • Proposed Section (g) (Continuance-Cure Period) (new provision)
   • Proposed Section (h) (Dismissal with Prejudice)
   • Other Proposed Changes for CrR 3.3.
   • Changes Proposed for CrR 4.1

   Terminology. For ease of discussion, this report will discuss the time-for-trial rules by referring to the superior court rule, CrR 3.3. The task force's recommendations for CrRLJ 3.3 and JuCR 7.8 are essentially the same as for CrR 3.3.¹

   The Dilemma - Flexible Rule Versus Strict Rule. Throughout our deliberations, the task force had to balance two competing issues underlying our time-for-trial rules. The rules need to be flexible enough for the judicial system to be able to handle a heavy load of criminal cases and to reach just results, yet the rules need to be strict enough to continue to serve as the "hammer" ensuring that the judicial system will promptly resolve criminal cases.

   Full recognition of these competing interests is necessary to any meaningful dialogue over proposals for change. Readers will note the interplay of these two competing issues throughout the following discussion.

   Proposed Subsection (a)(1) (Responsibility of Court). The task force began its consideration of CrR 3.3 by re-affirming the policy contained in subsection (a)(1). The responsibility for ensuring the timeliness of criminal trials is best placed on the courts. This provision has been in place since the adoption of the original rule in 1973, and the task force recommends that it not be changed.

   Proposed Subsection (a)(2) (Precedence of Criminal Trials). The task force also re-affirmed the policy that criminal trials take precedence over civil trials. The task force did consider proposals to provide greater specificity on this point. For example, members discussed whether the rule should specify that courts do not need to interrupt an on-going civil trial in order to begin a criminal trial. The task force ultimately decided, however, that this provision of the rule should be retained in its current form, leaving the resolution of more specific issues to the discretion of the courts.

   Proposed Subsection (a)(3) (Definitions) (new provision). The task force recommends adding definitions of particular key terms for greater clarity and certainty in the rule's application. The definition of "appearance" in subsection (iii) is proposed in order to specify when a defendant's presence in court on another charge may be counted as an appearance for purposes of the current charge. The definition of "detained in jail" in subsection (v) expressly excludes electronic home monitoring. Although case law holds that a defendant on electronic home monitoring is "in custody" for other purposes of the criminal law, including the calculation of credit for time served, the task force believes that for the purpose of time-for-trial calculations such a defendant is more properly treated as a defendant not detained in jail. Other definitions will be discussed later in this discussion along with the substantive provision to which they relate.

   Proposed Subsection (a)(4) (Construction of Rule) (new provision). Task force members are concerned that appellate court interpretation of the time-for-trial rules has at times expanded the rules by reading in new provisions. The task force believes that the rule, with the proposed revisions, covers the necessary range of time-for-trial issues, so that additional provisions do not need to be read in. Criminal cases should be dismissed under the time-for-trial rules only if one of the rules' express provisions have been violated; other time-for-trial issues should be analyzed under the speedy trial provisions of the state and federal constitutions.

   Proposed Subsection (a)(5) (Related Charges) (new provision). The task force recommends adding a new provision stating directly that the computation of the time-for-trial period applies equally to related charges. The proposed definition for "related charge" is limited to a charge that is based on the same conduct as the pending charge and that is ultimately filed in superior court (see subsection (a)(3)(ii)).

   Proposed Subsection (a)(6) (Reporting of Dismissals and Untimely Trials) (new provision). The task force recommends that the trial courts be required to report particular time-for-trial problems to the Administrative Office of the Courts. Under the proposal, courts would need to report each case that is dismissed under the time-for-trial rule and any case for which the cure period is invoked.

   These reports will serve several functions. First, the reports will provide an additional incentive to the trial courts to hear their criminal cases in a timely manner. The task force considers this to be an important function, given the greater flexibility that the task force is recommending for the rule. Requiring these reports will also provide a centralized collection of statistics to guide future decisions about time-for-trial policies and resource allocations. Currently, statistics on how often cases are dismissed under CrR 3.3 are not collected anywhere around the state. The task force sent state-wide queries to court administrators, judges, defense counsel, prosecuting attorneys, and the Administrative Office of the Courts, and found only anecdotal information. Responding to the lack of statistical data, the Snohomish County Prosecutor's Office undertook a survey of their adult felony cases that were closed in 2001. Their survey revealed that 17 of these cases had been reduced, dismissed, or declined on time-for-trial grounds. Thirteen of these cases involved Striker/Greenwood issues. We include the results of this survey in Appendix D.

   Proposed Subsections (b)(1) through (b)(4) (Time Periods for Bringing Cases to Trial). These proposed subsections consolidate and simplify the existing provisions of CrR 3.3 establishing the 60-day and 90-day time periods for bringing defendants to trial.

   The task force decided not to recommend changing the underlying time-for-trial time periods: 60 days for defendants detained in jail and 90 days otherwise. Members discussed the possibility of extending these deadlines, noting that most other states have time periods longer than ours, especially in those states that require dismissal with prejudice for rule violations². The task force examined the average length of time that superior courts currently need to get criminal cases to trial, and found that the state-wide averages significantly exceed 60 or 90 days, given the application of various exclusions of time, extensions of time, waivers, and continuances.³

   The task force concluded, however, that lengthening the time periods would serve little purpose. Although such a change could give more time for cases to be readied for trial, the timing of most cases going to trial is driven in large part not by the 60/90 day deadlines, but by the various exclusions, extensions, waivers, and continuances. As a result, changing the underlying time period would not necessarily result in any significant change in how long cases take before they get to trial. Further, lengthening the time periods runs counter to society's and victims' interests in having criminal trials be timely held and it does nothing to ease court congestion (the same number of cases would still have to be heard regardless of the length of the time periods).

   The task force proposes rephrasing this part of the rule to more clearly distinguish between defendants who are subject to the 60-day period and those who are subject to the 90-day period. We recommend sharpening this distinction by providing a definition for the key phrase "detained in jail." See proposed CrR 3.3(a)(3)(v). We also propose specifying the time-for-trial time period for those defendants who begin serving time in custody but are released before trial, as well as for defendants who are initially released but later placed in pre-trial custody.

   Proposed Subsection (b)(5) (Allowable Time After Excluded Period) (new provision). This subsection proposes a significant change from the current rule - a 30-day buffer period to follow any excluded period of time. The current rule does not provide adequate time for preparing and trying cases in which an excluded period of time runs out shortly before the expiration of a defendant's 60/90-day time period.

   For example, consider a defendant whose competency to stand trial needs to be evaluated on the 58^th day of a 60-day time-for-trial period. Under the existing rule's provisions, the time-for-trial "clock" would stop on Day 58 pending the final determination of competency. Once competency is determined, however, the clock restarts at Day 58, leaving only two days with which to begin the defendant's trial. The attorneys are left with insufficient time to complete their final trial preparations, including subpoenaing their witnesses, and the courts have problems with scheduling the case for trial on short notice.

   Accordingly, the task force proposes a new subsection (b)(5) ensuring that there will always be at least 30 days, following the conclusion of any excluded period of time, within which a trial may be started. This new provision will not necessarily change the expiration of the defendant's 60/90-day time period. The additional 30 days come into play only if there are fewer than 30 days remaining in the defendant's 60/90-day time period. In other words, if there are 10 days remaining in the time-for-trial period, then the new provision would extend the time-for-trial period by only 20 days.

   The task force recognizes that in most instances the courts will not need all, or even most, of the 30-day period to get the case set for trial. Indeed, as is recognized elsewhere in the rule, the courts may direct the parties, when appropriate, to remain in attendance or be on-call for trial assignment in order for the trial to be held within a relatively short period of time.

   Proposed Section (c) ("Commencement Date") (new provision). The task force has created a separate subsection (c) devoted solely to specifying the starting date for the 60/90-day time period under different circumstances.

   Under proposed subsection (c)(1), the time-for-trial period commences on the date of the defendant's arraignment, as determined under CrR 4.1. By using this date, the proposal departs from the existing rule with regard to cases that are initially filed in juvenile court or district court. Under the existing rule, when a case is moved from juvenile court or district court to superior court, time that the case spent in juvenile court or district court is counted toward the superior court time-for-trial deadline, shortening the time in superior court for getting the case ready to be heard. See existing CrR 3.3(c)(2) through (c)(6). Under the task force's proposal, these complicated provisions from the existing rule are deleted. Doing so ensures that cases will have adequate time to be prepared for trial in superior court and reduces the possibility of coordination problems between different court levels.

   Subsection (c)(2) specifies the circumstances under which the time-for-trial clock is reset to zero and establishes the corresponding "restart" date. Many of the circumstances spelled out in subsection (c)(2) were moved here from the current rule's section on extensions of time, the task force concluding that these circumstances are better handled by restarting the clock.

   Two aspects of subsection (c)(2) should be mentioned. New to CrR 3.3 is subsection (c)(2)(v), which restarts the time-for-trial clock when a new trial is granted as the result of a collateral proceeding. The task force intends the term "collateral proceeding" to include not only the hearing on the collateral matter but also any additional appellate review of the initial decision. Also, in subsection (c)(2)(vii), the task force has added language relating to the disqualification of defense attorneys (the corresponding provision in existing law refers only to the disqualification of judges and prosecuting attorneys). The task force believes that the same standards for restarting the clock should apply whether the disqualification is of a defense attorney, a prosecuting attorney, or a judge. In this regard, the task force has intentionally retained the existing "disqualification" terminology - the task force does not intend this provision to apply more broadly to all "substitutions" of defense counsel.

   Proposed Section (d) (Trial Settings and Notice-Objections-Loss of Right to Object). The changes being proposed to section (d) are largely for the purposes of clarification. Subsection (d)(4) is a new provision specifying the effect on the time-for-trial period when a defendant loses the right to object to a trial date.

   Proposed Section (e) (Excluded Periods). The task force recommends numerous changes to section (e):

   • Subsection (e)(1) clarifies excluded period for competency proceedings. The competency proceeding must be for the pending charge, which is defined earlier in the rule to mean the charge for which the time-for-trial period is being computed. The proposal also clarifies the beginning date for this excluded period.

   • Subsection (e)(2) (addressing an excluded period for proceedings on unrelated charges) has been rewritten in several regards. First, the task force proposes specifying that the provision applies to arraignment, pre-trial proceedings, trials, and sentencing on unrelated charges, replacing less specific language from the existing rule. The biggest change here is the addition of language on sentencing matters. The task force believes that the underlying policy considerations are the same with regard to sentencing as with regard to the other listed proceedings: the time-for-trial clock should stop when a defendant and the defendant's counsel are occupied with addressing charges that are unrelated to the case at hand. With regard to "pre-trial proceedings," the task force intends the term to apply to proceedings on substantive motions that need a judge's time to resolve, such as motions under CrR 3.5 or 3.6, but not to apply to simple motions such as the exclusion of witnesses. Finally, the proposal uses (and defines) the term "unrelated charge" rather than "another charge" in order to distinguish the issues from those set forth in (e)(5) ("Disposition of Related Charge").

   • Subsection (e)(4) specifies that the period between dismissal and refiling is excluded even with respect to a related charge.

   • Subsection (e)(5) is new, creating an excluded period that applies when a defendant is being tried on related charges. This provision addresses appellate opinions that have incorporated a strict version of mandatory joinder analysis into CrR 3.3. The task force proposes that this mandatory joinder analysis not be included in the time-for-trial rules.

     Another aspect of section (e) merits special attention. Subsection (e)(8), creating a new excluded time period for unavoidable or unforeseen circumstances, incorporates language and concepts from the existing rule's provision on five-day extensions. The new provision differs from the current rule in that the new exclusion is not necessarily limited to five days in length. Additionally, the new exclusion does not apply after the expiration of the time-for-trial period, although the proposed cure period can apply in this manner. See the discussion of the proposed cure period below.

     By phrasing subsection (e)(8) in terms of existing language from another part of the current rule, the task force intends that appellate interpretations of that language continue to apply. The term "unavoidable or unforeseen circumstances affecting the time for trial beyond the control of the court or the parties" should continue to include, for example, unexpected illnesses of defendants, attorneys, and judges, as well as natural disasters and other events requiring evacuation or closing of the courthouse. Routine instances of court congestion would not be covered by this provision, but could instead be addressed with the proposed cure period.

   Proposed Subsection (f)(1) (Continuance-Written Agreement). This subsection slightly modifies the current rule to require that the continuance be to a date-certain. The task force also discussed the current (and recently adopted) provision's requirement that the agreement must be signed by the defendant, and not just the defendant's attorney. Members noted in their discussion that under some circumstances, such as when a defendant's medical condition prevents him or her from attending a hearing, the defendant's signature might not be available even though good reason exists to grant a continuance. The task force decided, however, that under these circumstances a continuance could instead be addressed under a separate provision - subsection (f)(2), which authorizes continuances on the motion of the court. In light of the importance of securing the defendant's signature to these agreements, the task force proposes that the current signature requirement be retained. This same rationale applies equally to the provision earlier in the rule requiring defendants to personally sign waivers.

   Proposed Subsection (f)(2) (Continuance-Motion By the Court or a Party). This subsection is adapted from the existing provision authorizing continuances when required in the administration of justice and when the defendant will not be prejudiced. Two changes to the existing language are being proposed. The continuance should be to a date-certain, and the provision should be phrased in terms of whether the defendant is prejudiced, rather than "substantially prejudiced," by the continuance.

   Proposed Section (g) (Continuance-Cure Period) (new provision). The task force recommends creating a cure period that is designed to operate as a final "safety net." The cure period would provide one final opportunity (a period of up to 14 days for defendants detained in jail, and up to 28 days for other defendants) to bring the case to trial.

   Importantly, this cure period may be invoked even after the regular time-for-trial period has already expired, although the motion must be made no later than five days after this time has expired. For example, if a motion to cure is made four days after the defendant's 90-day time-for-trial period has expired, the defendant would be entitled to dismissal with prejudice only under the following scenario: (1) the court would hold a hearing, at which the judge would have discretion whether to impose the cure period; (2) if the judge determines that a cure period is not appropriate, then the case would be dismissed with prejudice at that point, but if the cure period is invoked, then the court would grant a continuance for up to 14 or 28 days; (3) the cure period could be lengthened for unavoidable or unforeseen circumstances under proposed subsection (e)(8); and (4) if the cure period expires before the defendant is brought to trial, then the defendant would be entitled to dismissal with prejudice.

   The proposed cure period is broadly drafted. It is not limited to particular fact patterns or categories of cases. The task force considered alternative proposals for a cure period, including proposals that would have limited the cure period to instances of court congestion. Ultimately, however, the members concluded that a broad cure period best satisfied the needs for a safety net, with judges being granted discretion to apply it as they deem appropriate.

   The cure period need not delay the trial for the full duration of the 14- or 28-day period. In an appropriate case, the court may order a shorter cure period or may order the full cure period but set a trial date before the ending date. The court may even direct the parties to remain in attendance or on-call in a case that is ready for trial on short notice.

   Finally, courts may use the cure period to ease the very real problem of court congestion. The cure period will give courts greater flexibility to handle their peak periods of case activity without greatly impinging on defendants' rights to a timely trial. The task force crafted the cure period with an eye toward retaining a sufficient "hammer" - the ultimate remedy of dismissal with prejudice - to ensure that criminal cases are promptly readied for trial and heard.

   The cure period, however, is not intended for everyday use. It should be used more as a measure of last resort, such as for addressing urgent periods of peak activity on criminal calendars. Over-use of the cure period should serve as a warning signal that the system is not working as intended, and that changes need to be made. Accordingly, the task force recommends that the trial courts be required to file a public report each time that a cure period is invoked as well as each time that a case is dismissed under the time-for-trial rule. See Proposed CrR 3.3(a)(6). This will ensure that the cure periods are closely monitored and will deter courts from using them too frequently.

   Proposed Section (h) (Dismissal with Prejudice). In light of the recommendation that CrR 3.3 be made more flexible in several regards, the task force proposes retaining the "hammer" of dismissal with prejudice. This strict remedy, coupled with the proposed creation of a reporting requirement, is needed to ensure that criminal cases will be promptly prepared for trial and heard. The proposal also directs the State to provide notice of dismissal to the victim and provides an opportunity, at the court's discretion, for the victim to address the court regarding the impact of the crime.

   Other Proposed Changes for CrR 3.3. In addition to the changes described above for new or amended provisions in CrR 3.3, the task force proposes deleting some of the rule's existing provisions. Because these changes involve deletions from the existing rule, they are more evident in the "legislative bill" format version of our proposals in Part III rather than in the "clean" version presented in Appendix G.

   The task force proposes moving arraignment provisions from current CrR 3.3 to the court rule that already addresses arraignment issues, CrR 4.1. This approach clarifies the distinction between time-for-trial issues and time-for-arraignment issues.

   Additionally, the task force recommends eliminating from CrR 3.3 the concept of "extensions" of time. See existing CrR 3.3(d). These provisions are more simply included elsewhere in the rule. Some have been redrafted as excluded time periods, under proposed CrR 3.3(e), and others as grounds for starting the time-for-trial clock anew, under proposed CrR 3.3(c)(2).

   In sum, the task force believes that its proposal for revising CrR 3.3 strikes an appropriate balance between the need for a flexible rule that allows for the sensible administration of justice and the need for a strict rule that compels the timely hearing of criminal cases (to the benefit of all).

   Changes Proposed for CrR 4.1. The task force members agree that the time-for-arraignment provisions currently existing in CrR 3.3 should be moved to the rule that already specifically addresses arraignments, CrR 4.1.⁴ Other aspects of the proposed revisions for CrR 4.1, however, are not consensus recommendations, but are discussed below with regard to the Striker/Greenwood recommendations.

² See Appendix F for a chart prepared by the Washington Association of Prosecuting Attorneys summarizing the time-for-trial statutes and court rules used in all 50 states and in the federal court system.

³ See Appendix E for a summary of these statistics.

⁴ A similar recommendation is made for the corresponding provisions of the limited jurisdiction court rules, CrRLJ 3.3 and CrRLJ 4.1. The task force decided that a similar recommendation was not necessary for the juvenile court rule, JuCR 7.6, given the cross-reference in that rule to the superior court rule, CrR 4.1.