Time-for-Trial Final Report

2. Overview of Recommendations

   The Task Force is recommending a broad range of revisions to the court rules affecting time-for-trial¹ issues. The recommendations include rewriting the existing court rules on time-for-trial (CrR 3.3, CrRLJ 3.3, and JuCR 7.8) and moving the existing time-for-arraignment provisions into the arraignment rules (CrR 4.1 and CrRLJ 4.1). All task force members support these recommendations.

   The Task Force was unable to reach full agreement on perhaps the most significant issue: how to handle Striker/Greenwood's due-diligence standards. By a final vote of 14 to 2, the task force approved a proposal to address the Striker/Greenwood issues by amending CrR 2.2, thereby incorporating a revised set of due-diligence standards into the requirements for issuing an arrest warrant. A minority report (supported by 4 members)² is being submitted with a counter-proposal, which addresses Striker/Greenwood in CrR 4.1 (the arraignment rule), rather than CrR 2.2. Both proposals are summarized later in this Overview.

   1. Summary of Consensus Recommendations.

      The following recommendations are supported by the entire task force. These recommendations are intended to address many different issues. We will summarize these changes according to the respective issues being addressed.

      • Changes to address court congestion:

        • A proposed cure period would give courts an additional but brief period of time, after the defendant's 60/90-day period has expired, with which to get a case heard. The cure period provides courts with greater flexibility for handling the peaks of their heavy trial calendars. While the cure period is not intended for everyday use, and while the motion to cure must be brought in a timely manner, the cure period will provide relief as a matter of last resort.

        • A proposed 30-day buffer period would ensure that there will always be at least a 30-day period in which to get a case heard following an excluded period of time. This will allow the parties to get their cases ready for trial and the courts to get the case heard even in those instances when an excluded period terminates immediately before the expiration of the 60/90-day time-for-trial period. The current rule does not provide sufficient flexibility for handling these difficult circumstances.

      • Changes to ensure that relatively minor and inadvertent violations of the time-for-trial rules do not lead to dismissal with prejudice:

        • According to the best available information, time-for-trial problems arise most frequently due to violations of the Striker/Greenwood standards rather than violations of express provisions of CrR 3.3.³ Accordingly, if the Task Force's Striker/Greenwood revisions described later in this overview are adopted, a large percentage of time-for-trial dismissals with prejudice could be avoided.

        • The proposed cure period would also serve this purpose. The cure period is not limited to instances of court congestion. Rather, it is broadly written to apply regardless of the reason why the defendant's 60/90-day time period was exceeded. The cure period gives the judicial system added flexibility to bring cases to trial that otherwise would be subject to dismissal under the current rule, as long as the motion to cure is brought no later than five days after the expiration of the defendant's time-for-trial period. These cases would be dismissed with prejudice only when good reason exists for the dismissal.

        • The proposed 30-day buffer period following an excluded period of time would address a category of cases that is particularly susceptible to time-for-trial problems and dismissal under the current rule.

        • Several changes are designed to simplify and clarify the rule (see examples listed below), especially with regard to the calculation of time. A simpler and clear rule would create less confusion and fewer mistaken calculations, thereby reducing the number of cases that become subject to dismissal with prejudice.

      • Changes for clarification and simplification:

        Many of the proposed changes are intended to clarify and simplify the rule so that it is easier to apply and will provide greater certainty. Examples include:

        • Beginning and ending points for various time periods are stated more simply and more specifically;

        • The separate category of "extensions" of time is eliminated;

        • Key terms are defined in order to reduce ambiguity;

        • The rule is re-organized to follow a more logical structure and to keep distinct issues that need to be kept distinct; and

        • The proposed CrR 3.3 is more than 25% shorter than the existing rule, even though several new provisions have been added.

      • Change to increase accountability:

        The Task Force recommends that the trial courts be required to report each time that a case is dismissed under CrR 3.3 and each time that a cure period is applied to a case. The required reporting will make the judicial system more accountable to the public in this area of great public interest.

      • Change to enable better-informed decisions in the future on time-for-trial issues:

        This requirement for reporting cases would also provide valuable information, currently lacking, as to the frequency with which criminal cases run into time-for-trial problems. This information should greatly assist the development of policy and the allocation of scarce resources in this area of the law.

      • Changes to address judicial interpretation of CrR 3.3:

        Task Force members are concerned over the degree to which the time-for-trial standards have become less governed by the express language of the rule and more governed by judicial opinions. To address this concern, the task force has tried to fashion a rule that is simpler, has fewer ambiguities, and covers more of the field of time-for-trial issues, with the hope that a reader of the rule will have a better understanding of the overall picture than currently exists. The Task Force also recommends adopting a provision in CrR 3.3 expressly stating that the rule is intended to cover all the reasons why a case should be dismissed under the rule. Courts should not read into the rule any other reasons beyond those that are expressly stated in the rule. Any other reasons should be analyzed under the corresponding constitutional provisions (Wash. Const. Art. I, § 22, and U.S. Const., Amend. 6).

      Finally, it should be noted that the task force has chosen to retain several fundamental aspects of the current rule that are working well. The task force agrees that the trial courts should retain responsibility for assuring timely criminal trials, that criminal cases should take precedence over civil cases, that the underlying 60/90-day time periods (with excluded periods of time) should be retained, and that the remedy of dismissal with prejudice should be kept in order to retain the incentive for ensuring that cases are heard in a timely manner.

   2. Task Force Recommendation Regarding Striker/Greenwood and Due-diligence.

      The task force's recommendation for addressing Striker/Greenwood and due-diligence is supported by a majority, but not all, of the task force members.⁴ (The minority position will be summarized in the ensuing section.)

      Under Striker⁵, Greenwood⁶, and related cases, the state is required to act with due-diligence in locating a defendant and notifying him or her of the pending criminal charges. Although these standards serve a good purpose, they create unnecessary traps for law enforcement agencies. The Striker/Greenwood standards are vague and case-specific, making it difficult for the state to know with any degree of certainty whether it has satisfied the due-diligence requirements in a particular case. The problem is heightened because the judicial determination of due-diligence is made so late in the case that the State no longer has an opportunity to correct any deficiencies in its efforts to find the defendant. If the State guesses wrong as to whether it has satisfied the vague standards of due-diligence, the entire case is lost. These harsh results can be avoided without undermining the purpose of the Striker/Greenwood standards.

      The task force recommends addressing Striker/Greenwood by revising CrR 2.2 (on the issuance of warrants) to create new standards and procedures under which due-diligence in searching for a defendant's address would be determined before an arrest warrant is issued. This would ensure that due-diligence is determined early in the case, when the State still has an opportunity to correct any deficiencies in their attempts to locate the defendant.

   3. Minority Recommendation Regarding Striker/Greenwood and Due-diligence.

      The Striker/Greenwood decisions allow courts to enforce a requirement for prompt arraignment by threatening dismissal of charges if defendants are not arraigned within 90 days of the filing of the charges. This creates a problem in cases where the defendant has failed to appear pursuant to summons.

      Merely issuing a warrant for arrest is no guarantee that the defendant will be arrested or otherwise given notice of a pending charge. Service of arrest warrants is presently selective and dependent upon the perceived gravity of the offense or risk of re-offending. A minority group of members disagree with the task force's approach because it completely abrogates Striker/Greenwood. Moreover, in these cases, the majority approach not only eliminates any incentive for prompt arraignments but also sidesteps the due process issue of notifying defendants of the pending charges.

      These members instead propose amending the arraignment rules (CrR 4.1 and CrRLJ 4.1) to incorporate a different approach to ensuring due-diligence requirements. Under the minority proposal, the prosecution establishes due-diligence by showing that an attempt was made to serve an arrest warrant on the defendant within 60 days after the charge was filed. The minority group's due-diligence requirements differ depending on whether the defendant is charged with a felony crime against children or other persons. For such defendants, the State would need to prove an attempt was made to serve an arrest warrant at the defendant's last known residence. For other defendants, the State would be required to prove only that notice of the warrant was mailed to the defendant's last known residence.

      The minority group argues that their proposal, which enforces the requirement for notice as well as for prompt arraignment by requiring proof of attempted service, is a pragmatically effective way of ensuring due-diligence, to the benefit of all.

¹ This report uses the term "time-for-trial" instead of "speedy trial" with regard to the court rules. This usage emphasizes the distinction between the "time-for-trial" provisions in the court rules and the "speedy trial" provisions in the state and federal constitutions. See Wash. Const. Art. I, § 22; U.S. Const., Amend. 6.

² Although only 2 members voted against the proposal to amend CrR 2.2, a total of 4 members voted in favor of the minority counter-proposal for CrR 4.1.

³ See Appendix D for a discussion of the limited statistics that are available as to the frequency of Striker/Greenwood problems.

⁴ See footnote 2 and accompanying text.

⁵ State v. Striker, 87 Wash.2d 870, 557 P.2d 847 (1976).

⁶ State v. Greenwood, 120 Wash.2d 585, 845 P.2d 971 (1993).