Time-for-Trial Final Report

3. Discussion of Striker/Greenwood Recommendations.

   The task force was unable to reach full agreement as to the best means for addressing Striker/Greenwood's due-diligence standards. By a final vote of 14 to 2¹, the task force members approved an approach involving revisions to the rule on issuing arrest warrants, CrR 2.2.² This proposal is discussed in subsection (1) below. A minority report is being submitted proposing different revisions to the rule on arraignments, CrR 4.1. The minority proposal is discussed in subsection (2) below.

   (1) Discussion of Task Force Recommendations.

   Under Striker, Greenwood, and related cases, the appellate courts incorporated due-diligence standards into the time-for-trial rules. These standards require the State to act with due-diligence in locating defendants and bringing them into court. Striker/Greenwood standards certainly serve an important purpose, because the existing time-for-trial rules are silent as to the important issue of pre-arraignment delay. Indeed, CrR 3.3 would lose some of its force if there were no requirements to arraign defendants in a timely manner.

   Yet these opinions have caused significant problems for the criminal justice system. As with most common law standards, which are developed through a series of fact-specific applications, the Striker/Greenwood standards are vague and of limited value in predicting how other cases will be decided. Law enforcement agencies would benefit from having more precise guidelines.

   The problems for law enforcement are compounded by the delayed nature of the hearings at which the courts decide whether due-diligence was satisfied. The judicial hearings are not held toward the beginning of the case, contemporaneous with the State's actions at issue. Rather, these hearings are not held until after the State has been unable to locate the defendant and a delay in the case has occurred. Once the defendant is finally located, the defendant then moves for dismissal with prejudice on the grounds that the State did not act with due-diligence under Striker and Greenwood. At this point, the delay has already occurred and cannot be undone. Any deficiencies in the State's attempts to locate the defendant at this point cannot be corrected. If the court ultimately decides that the State failed to act with due-diligence, even if the State simply failed to predict what steps the court would require in that case, the case becomes subject to dismissal with prejudice.

   Harsh results such as these impose heavy costs on society. Crimes go unpunished even in those cases when evidence of the defendant's guilt is compelling. This social cost is magnified by the frequency with which Striker/Greenwood violations play a role in time-for-trial issues. Although these statistics are not routinely collected at the state level or by local jurisdictions, the Snohomish County Prosecutor's Office recently conducted a limited survey of their recent felony cases, the results of which are instructive. All the felony cases that were closed during the calendar year 2001 were reviewed to see how many of them were dismissed, declined, or reduced due to time-for-trial violations. Of the 17 cases that fell into this category, 13 cases (over 75%) involved violations of the Striker/Greenwood standards.³

   Severe results such as these can be justified if they are in fact necessary to ensure that the State will act with due-diligence in getting defendants arraigned. The majority of task force members have concluded, however, that due-diligence may be ensured through other methods, at far less social cost. The task force believes that greater justice can be done if judicial hearings on due-diligence are conducted earlier in the case, before an extended delay occurs, at a time when the State still has an opportunity to correct any deficiencies in their efforts to locate the defendant.

   The task force's proposal is to amend CrR 2.2 with regard to the issuance of arrest warrants. Under this proposal, an arrest warrant shall not be issued until the State has shown that it searched for the defendant's current address in the databases identified in the proposal. Each of the databases identified in the proposed rule is state-wide in scope and can be easily searched for addresses. This approach would take the guesswork out of the process, while still ensuring that due-diligence is performed, and without subjecting the case to dismissal with prejudice.

   The task force decided against specifying the minimum due-diligence standards in greater detail. The rule needs to apply generally across broad categories of cases, and due-diligence requirements that make sense in one case might not make sense in another. For example, the State should be held to a more rigorous standard in cases involving serious felonies than in less serious cases. Also, the facts of any particular case might suggest other likely sources of information for locating that defendant.

   The task force realizes that this approach will work for only those cases in which an arrest warrant is issued. For other cases, i.e., cases in which charges are filed but no arrest warrant is issued, the task force recognized that an additional remedy is needed. Without an additional remedy, these cases might remain open for long periods of time, with no action being taken to secure a warrant or otherwise locate the defendant, thereby resulting in the very type of delay that the Striker/Greenwood standards were designed to avoid. The task force believes that in these circumstances the best approach is for these cases to be dismissed without prejudice, under the following procedures. A case would be subject to dismissal without prejudice if (1) 90 days have elapsed since criminal charges were filed and (2) by the date of the dismissal an arrest warrant has not been issued and the defendant has not appeared. The court must give the prosecutor's office five days' notice of the pending dismissal, thereby reducing the possibility that a case might be mistakenly dismissed. The proposal does not specify how the five days' notice is to be given to the prosecutor's office; one option discussed by task force members would be for courts to docket pending cases on a dismissal calendar. Once the case is dismissed, the statute of limitations would once again begin to run, limiting the length of time that the person could remain subject to criminal charges.

   The task force's recommendation on Striker/Greenwood is also reflected in its proposal for CrR 4.1, on the time for arraignments. The task force proposes adding a sentence to CrR 4.1(a) indicating that any delay in bringing out-of-custody defendants before the court shall not affect the defendant's allowable time for arraignment, "regardless of the reason for that delay." With this sentence, the task force is stating its intent that the Striker/Greenwood standards be replaced with the proposed due-diligence standards expressed in CrR 2.2.

   The task force's proposed revisions for CrR 2.2 also include a statement of the exceptions under which a search for addresses does not need to be undertaken. Under each of these circumstances, requiring a search serves little purpose. The exception for when the defendant's name is unknown is intended to apply to "John Doe" cases, such as occur with DNA charging procedures, rather than to cases involving aliases or issues as to the defendant's "true" name.

   The task force adopted its Striker/Greenwood proposal after extended debate and after several alternative drafts had been proposed. The approaches ranged from abrogating the Striker/Greenwood standards entirely (thereby creating a clearer rule that limits dismissals with prejudice to only those few cases that violate the constitutional provisions) to attempting to directly incorporate the Striker/Greenwood standards and procedures into CrR 3.3. Task force members differed greatly in terms of whether the Striker/Greenwood standards should be retained in the first place, but there was general consensus that if the standards are to be retained, the standards should be reflected in the rules themselves.

   The task force believes that its current proposal incorporates the best features of these different approaches. The proposal still requires the State to act with due-diligence, but it does so without exacting the social sacrifice inherent in dismissals with prejudice.

   One caveat is added here. Given the impact this proposal will have on law enforcement procedures, opportunities should be extended to members of the law enforcement community to allow them to submit additional comments. The task force has done what it could to solicit this input, but a number of factors limited the extent to which this happened. The task force did not include any representatives from law enforcement agencies, the task force had only a short time-frame with which to prepare this report, and the task force developed its final Striker/Greenwood recommendation toward the end of our process.

   (2) Discussion of Minority Recommendation.

   As indicated in the overview discussion, a minority of task force members believe that the task force's proposals do not adequately address the underlying problem that the Striker/Greenwood cases attempt to solve. The task force's proposed CrR 2.2 and CrR 4.1, for example, eliminates the Striker/Greenwood requirements and limits the due-diligence inquiry to whether the prosecution acted sufficiently in searching for the defendant's current address. The minority proposal, on the other hand, assumes the Striker/Greenwood requirements and focuses on whether the prosecution has made a sufficient attempt to notify a defendant of a pending charge.

   The minority proposal creates a process for proving due-diligence notification of charges in those cases where a defendant not detained in jail fails to appear at arraignment pursuant to summons. Under this proposal, the prosecution tolls the running of the 90-day limitation period for arraignment by filing a due-diligence certification in affidavit or declaration form. The certification must show that an attempt was made to serve an arrest warrant or notice thereof upon the defendant within 60 days of the filing of the charges. The certification itself must be filed by the date of the defendant's first appearance.

   For charges involving a felony crime against children or other persons as enumerated in RCW 43.43.830, the prosecution would need to show that personal service of the warrant was attempted at the defendant's last known residence. For all other charges, the prosecution would need to show only that notice of the warrant was mailed to the defendant's last known residence. The proposal also spells out the court and law enforcement databases that the prosecution or law enforcement agency must consult to determine the defendant's last known residence.

   Under the minority proposal, hearings on arraignment delays for such defendants would be limited to the issues of competence, form, timeliness and merits of the due-diligence certification. No other due-diligence claims would be considered. If these issues were resolved in favor of the prosecution, then the defendant's arraignment would be considered timely and the actual arraignment date would be used as the starting date for the defendant's time-for-trial period under CrR 3.3. If these issues were instead resolved in favor of the defendant, then the court would establish the last day on which the defendant could properly have been arraigned, which then would be used as the starting date for the defendant's time-for-trial period under CrR 3.3.

   The minority proponents argue that fundamental principles of justice, including due process, require more than address searches. They maintain that once the prosecution has decided that charges should be brought against a defendant, the prosecution should also be required to take sufficient steps to ensure that defendants be given adequate notice of those charges. For until defendants are brought into court for arraignment, no steps necessary to develop and preserve evidence in the defendants defense are usually taken.

   The potential for prejudice to defendants in this situation is very great. Yet it is difficult for defendants to show prejudice-usually the loss of evidence-as a result of such delays. In most instances the loss of evidence will be provable only by the word of a defendant, whose credibility may be doubted. The rate of false convictions of defendants is not currently known, although such injustices, as shown recently by the Innocence Project and the Wenatchee Confession cases, do occur. The minority proponents believe that the majority proposals will only increase such wrongful outcomes.

   Further, if Striker/Greenwood is abrogated, and due-diligence requirements for bringing defendants before the court are eliminated, then trials in this category of cases will be needlessly, if not greatly, delayed, to the detriment of all. Delays in getting cases to trial frustrate everybody's interest in promptly resolving criminal charges. Delays can also damage prosecution cases due to the loss, with the passage of time, of witnesses, memories, documents and other evidence.

   Minority proponents point out that the burden on law enforcement agencies would not be unduly heavy. Because warrants can be served like civil process, private process servers could be used. Law enforcement would still decide which cases merited the resources needed to effect actual arrests. This due-diligence proposal represents an easier standard for the prosecution and law enforcement to meet than currently is required under case law. Indeed, for the great majority of cases, the responsible agency would only be required to mail notice of the arrest warrant to the defendant's last known residence.

   Additionally, the prosecution and law enforcement agencies would benefit greatly from having the applicable standards set forth in definite and specific court rules. Responsible agencies would know at the outset of a case exactly what steps they need to take to determine the residence of, and prove attempted service upon, a defendant, whereas currently those agencies may not be fully informed of due-diligence standards under case law or be capable of applying them to specific situations.

   Finally, the minority group argues that good sense requires holding the prosecution to a higher standard with regard to defendants who are charged with felony crimes against children or other persons. Not only are defendants in these cases subject to greater penalties, but also, under the Sentencing Reform Act, convictions of these offenses can never be vacated. The State should be required to attempt to personally serve these defendants with the arrest warrant.

   A copy of the minority counter-proposal for CrR 4.1 is included in Appendix H.

² The proposed revisions for the corollary rule for courts of limited jurisdiction (CrRLJ 2.2) are essentially the same as for CrR 2.2.

³ See Appendix D for more details.