4 Procedures Prior to Trial
CrRLJ 4.1: ARRAIGNMENT
(1) Defendant Detained in Jail. The defendant shall be arraigned not later than 14 days after the date the complaint or citation and notice is filed in court, if the defendant is (i) detained in a county or city jail in the county where the charges are pending, or (ii) subject to conditions of release imposed in connection with the same charges.
(2) Defendant Not Detained in Jail. The defendant shall be arraigned not later than 14 days after that appearance which next follows the filing of the complaint or citation and notice, if the defendant is not detained in such jail or subject to such conditions of release. Any delay in bringing the defendant before the court shall not affect the allowable time for arraignment, regardless of the reason for the delay. For purposes of this rule, "appearance" has the meaning defined in CrRLJ 3.3(a)(3)(iii).
(b) Objection to Arraignment Date---Loss of Right to Object.
A party who objects to the date of arraignment on the ground that it is not within the time limits prescribed by this rule must state the objection to the court at the time of the arraignment. If the court rules that the objection is correct, it shall establish and announce the proper date of arraignment. That date shall constitute the arraignment date for purposes of CrRLJ 3.3. A party who fails to object as required shall lose the right to object, and the arraignment date shall be conclusively established as the date upon which the defendant was actually arraigned.
If the defendant appears without counsel, the court shall inform the defendant of his or her right to have counsel before being arraigned. The court shall inquire if the defendant has counsel. If the defendant is not represented and is unable to obtain counsel due to indigence, counsel shall be assigned to the defendant by the court, unless the defendant makes a knowing, voluntary and intelligent waiver of counsel.
(d) Waiver of Counsel.
If the defendant chooses to proceed without counsel, the court shall determine on the record whether the waiver is made voluntarily, competently and with knowledge of the consequences. The court shall make a thorough inquiry of the defendant's understanding before accepting the waiver. If the court finds the waiver valid, an appropriate finding shall be entered in the record. Unless the waiver is valid, the court shall not proceed with the arraignment until counsel is provided. Waiver of counsel at arraignment shall not preclude the defendant from claiming the right to counsel in subsequent proceedings in the cause, and the defendant shall be so informed.
Defendant shall be asked his or her true name. If the defendant alleges that their true name is one other than that by which he or she is charged, it must be entered in the record, and subsequent proceedings shall be had against him or her by that name or other names relevant to the proceedings.
The complaint or citation and notice or the substance of the charge, shall be read to the defendant, unless the reading is waived, and a copy shall be given to the defendant.
(g) Appearance by Defendant's Lawyer.
Except as otherwise provided by statute or by local court rule, a lawyer may enter an appearance or a plea of not guilty on behalf of a client for any offense. Such appearance or plea may be entered only after a complaint or citation and notice has been filed.
(1) The appearance or the plea of not guilty shall be made only in writing or in open court, and eliminates the need for a further arraignment.
(2) An appearance that waives arraignment but fails to state a plea shall be deemed to constitute entry of a plea of not guilty.
(3) An appearance under this rule constitutes a waiver of any defect in the complaint or the citation and notice except for failure to charge a crime which may be raised at any time and except for any other defect that is specifically stated in writing or on the record at the time the appearance is entered.
(4) A written appearance shall commence the running of the time periods established in rule 3.3 from the date of its receipt by the court, unless the time periods have previously been commenced by an appearance in open court.
(5) Telephonic requests or notices by either the defendant or the defendant's lawyer shall not constitute an arraignment or an appearance or entry of a plea, and shall not commence the running of the time periods under rule 3.3.
(6) The appearance by a lawyer authorized by this rule shall be construed as an "arraignment" under the other provisions of these rules.
[Amended effective September 1, 1995; September 1, 2003; September 1, 2010.]
CrRLJ 4.2: Pleas and Pretrial Disposition Includes all forms, declarations, and attachments
CrRLJ 4.3: JOINDER OF OFFENSES AND DEFENDANTS
(a) Joinder of Offenses.
Two or more offenses may be joined in one charging document, with each offense stated in a separate count, when the offenses: (1) Are of the same or similar character, even if not part of a single scheme or plan; or (2) Are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. The number of offenses in one charging document may be governed by local court rule.
(b) Joinder of Defendants. Unless otherwise provided by local court rule, two or more defendants may be joined in the same charging document: (1) When each of the defendants is charged with accountability for each offense included; (2) When each of the defendants is charged with conspiracy and one or more of the defendants is also charged with one or more offenses alleged to be in furtherance of the conspiracy; or (3) When, even if conspiracy is not charged and all of the defendants are not charged in each count, it is alleged that the several offenses charged: (i) were part of a common scheme or plan; or (ii) were so closely connected in respect to time, place and occasion that it would be difficult to separate proof of one charge from proof of the others. Such defendants may be charged in one or more counts together or separately and it shall not be necessary to charge all defendants in each count.
(c) Improper Joinder. Improper joinder of offenses or defendants shall not preclude subsequent prosecution on the same charge for the charge or defendant improperly joined.
CrRLJ 4.3.1: CONSOLIDATION FOR TRIAL
(a) Consolidation Generally.
Offenses or defendants properly joined under rule 4.3 shall be consolidated for trial unless the court orders severance pursuant to rule 4.4.
(b) Failure To Join Related Offenses.
(1) Two or more offenses are related offenses, for purposes of this rule, if they are within the jurisdiction and venue of the same court and are based on the same conduct.
(2) When a defendant has been charged with two or more related offenses, his or her timely motion to consolidate them for trial should be granted unless the court determines that because the prosecuting authority does not have sufficient evidence to warrant trying some of the offenses at that time, or for some other reason, the ends of justice would be defeated if the motion were granted. A defendant's failure to so move constitutes a waiver of any right of consolidation as to related offenses with which the defendant knew he or she was charged.
(3) A defendant who has been tried for one offense may thereafter move to dismiss a charge for a related offense, unless a motion for consolidation of these offenses was previously denied or the right of consolidation was waived as provided in this rule. The motion to dismiss must be made prior to the second trial, and shall be granted unless the court determines that because the prosecuting authority was unaware of the facts constituting the related offense or did not have sufficient evidence to warrant trying this offense at the time of the first trial, or for some other reason, the ends of justice would be defeated if the motion were granted.
(4) Entry of a plea of guilty to one offense does not bar the subsequent prosecution of a related offense unless the plea of guilty was entered on the basis of a plea agreement in which the prosecuting authority agreed to seek or not to oppose dismissal of other related charges or not to prosecute other potential related charges.
(c) Authority of Court To Act. The court may order consolidation for trial of two or more charging documents if the offenses or defendants could have been joined in a single charging document under rule 4.3.
CrRLJ 4.4: SEVERANCE OF OFFENSES AND DEFENDANTS
(a) Timeliness of Motion; Waiver.
(1) A defendant's motion for severance of offenses or defendants must be made before trial, except that a motion for severance may be made before or at the close of all the evidence if the interests of justice require. Severance is waived if the motion is not made at the appropriate time.
(2) If a defendant's pretrial motion for severance was overruled he or she may renew the motion on the same ground before or at the close of all the evidence. Severance is waived by failure to renew the motion.
(b) Severance of Offenses.
The court, on application of the prosecuting authority, or on application of the defendant other than under section (a), shall grant a severance of offenses whenever before trial or during trial with consent of the defendant, the court determines that severance will promote a fair determination of the defendant's guilt or innocence of each offense.
(c) Severance of Defendants.
(1) A defendant's motion for severance on the ground that an out-of-court statement of a codefendant referring to him or her is inadmissible against him or her shall be granted unless: (i) the prosecuting authority elects not to offer the statement in the case in chief; or (ii) deletion of all references to the moving defendant will eliminate any prejudice to him or her from the admission of the statement. (2) The court, on application of the prosecuting authority, or on application of the defendant other than under subsection (i), should grant a severance of defendants whenever: (i) if before trial, it is deemed necessary to protect a defendant's rights to a speedy trial, or it is deemed appropriate to promote a fair determination of the guilt or innocence of a defendant; or (ii) if during trial upon consent of the severed defendant, it is deemed necessary to achieve a fair determination of the guilt or innocence of a defendant. (3) When such information would assist the court in ruling on a motion for severance of defendants, the court may order the prosecuting authority to disclose any statements made by the defendants which he or she intends to introduce in evidence at the trial.
(d) Failure To Prove Grounds for Joinder of Defendants.
If pursuant to section (a), a defendant moves to be severed at the conclusion of the prosecuting authority's case or of all the evidence, and there is not sufficient evidence to support the grounds upon which the moving defendant was joined or previously denied severance, the court shall grant severance if, in view of this lack of evidence, failure to sever prejudices the moving defendant.
(e) Authority of Court To Act on Own Motion.
The court may order a severance of offenses or defendants before trial if a severance could be obtained on motion of a defendant or the prosecuting authority.
[Adopted effective September 1, 1987; amended effective September 1, 2007.]
CrRLJ 4.5: PRETRIAL HEARING
When a plea of not guilty is entered, the court may set a time for a pretrial hearing. The time set for the pretrial hearing should allow sufficient time for the lawyers to initiate and complete discovery, conduct further investigation of the case as needed, and continue plea discussions.
CrRLJ 4.6: DEPOSITIONS
(a) When Taken.
Upon a showing that a prospective witness may be unable to attend or prevented from attending a trial or hearing or if a witness refuses to discuss the case with either lawyer and that his or her testimony is material and that it is necessary to take his or her deposition in order to prevent a failure of justice, the court at any time after the filing of a complaint or citation and notice may upon motion of a party and notice to the parties order that his or her testimony be taken by deposition and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place.
(b) Notice of Taking.
The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the notice is served, the court for cause shown may extend or shorten the time and may change the place of taking.
(c) How Taken.
A deposition shall be taken in the manner provided in civil actions. No deposition shall be used in evidence against any defendant who has not had notice of and an opportunity to participate in or be present at the taking thereof.
Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as witness, or as substantive evidence under circumstances permitted by the Rules of Evidence.
(e) Objections to Admissibility.
Objections to receiving in evidence a deposition or part thereof may be made as provided in civil actions.
CrRLJ 4.7: DISCOVERY
(a) Prosecuting Authority's Obligations.
(1) Except as otherwise provided by protective orders or as to matters not subject to disclosure, the prosecuting authority shall, upon written demand, disclose to the defendant the following material and information within his or her possession or control concerning: (i) the names and addresses of persons whom the prosecuting authority intends to call as witnesses at the hearing or trial, together with any written or recorded statements and the substance of any oral statements of such witnesses; (ii) any written or recorded statements and the substance of any oral statements made by the defendant, or made by a codefendant if the trial is to be a joint one; (iii) any reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and scientific tests, experiments, or comparisons; (iv) any books, papers, documents, photographs, or tangible objects which the prosecuting authority intends to use in the hearing or trial or which were obtained from or belonged to the defendant; (v) 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; (vi) any electronic surveillance, including wiretapping, of the defendant's premises or conversations to which the defendant was a party and any record thereof; (vii) any expert witnesses whom the prosecuting authority will call at the hearing or trial, the subject of their testimony, and any reports relating to the subject of their testimony that they have submitted to the prosecuting authority; (viii) any information indicating entrapment of the defendant; (ix) specified searches and seizures; (x) the acquisition of specified statements from the defendant; and (xi) the relationship, if any, of specified persons to the prosecuting authority. (2) Unless the court orders otherwise, discoverable materials shall be made available for inspection and copying within 21 days of arraignment or within 21 days of receipt of the demand by the prosecuting authority, whichever is later. (3) Except as otherwise provided by protective orders, the prosecuting authority shall disclose to defendant's lawyer any material or information within his or her knowledge which tends to negate defendant's guilt as to the offense charged. (4) The prosecuting authority's obligation under this section is limited to material and information within the actual knowledge, possession, or control of members of his or her staff.
(b) Defendant's Obligations.
(1) Except as otherwise provided by protective orders or as to matters not subject to disclosure, the defendant shall, upon written demand, disclose to the prosecuting authority the following material and information within his or her possession or control concerning: (i) the names and addresses of persons whom the defendant intends to call as witnesses at the hearing or trial, together with any written or recorded statements and the substance of any oral statements of such witnesses; (ii) any books, papers, documents, photographs, or tangible objects which the defendant intends to use in the hearing or trial; (iii) any expert witnesses whom the defendant will call at the hearing or trial, the subject of their testimony, and any reports relating to the subject of their testimony that they have submitted to the defendant; (iv) any claim of incompetency to stand trial; (v) whether his or her prior convictions will be stipulated or need to be proved; (vi) whether or not he or she will rely on a defense of insanity at the time of the offense; and (vii) the general nature of his or her defense. (2) Unless the court orders otherwise, discoverable materials shall be made available for inspection and copying not later than 14 days prior to the date set for trial. (3)References in this section to defendant shall be deemed to include the defendant's lawyer, where appropriate.
(c) Physical and Demonstrative Evidence.
(1) Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, the court on motion of the prosecuting authority or the defendant may require or allow the defendant to: (i) appear in a lineup; (ii) speak for identification by a witness to an offense; (iii) be fingerprinted; (iv) pose for photographs not involving reenactment of the crime charged; (v) try on articles of clothing; (vi) permit the taking of samples of or from his or her blood, hair, and other materials of his or her body including materials under his or her fingernails which involve no unreasonable intrusion thereof; (vii) provide specimens of his or her handwriting; and (viii) submit to a reasonable physical, medical, or psychiatric inspection or examination. (2) Provisions may be made for appearance for the purposes stated in this section in an order for pretrial release.
(d) Material Held by Others.
Upon defendant's request and designation of material or information in the knowledge, possession or control of other persons which would be discoverable if in the knowledge, possession or control of the prosecuting authority, the prosecuting authority shall attempt to cause such material or information to be made available to the defendant. If the prosecuting authority's efforts are unsuccessful and if such material or persons are subject to the jurisdiction of the court, the court shall issue suitable subpoenas or orders to cause such material to be made available to the defendant.
(e) Discretionary Disclosures.
(1) Upon a showing of materiality and if the request is reasonable, the court in its discretion may require disclosure of the relevant material and information not covered by sections (a) and (d). (2) The court may condition or deny disclosure authorized by this rule if it finds that there is a substantial risk to any person of physical harm, intimidation, bribery, economic reprisals or unnecessary annoyance or embarrassment resulting from such disclosure, which outweigh any usefulness of the disclosure to the defendant.
(f) Matters Not Subject to Disclosure.
(1) Work Product. Disclosure shall not be required of legal research or of records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of investigating or prosecuting agencies except as to material discoverable under subsection (a)(1)(iii). (2) Informants. Disclosure of an informants identity shall not be required when his or her identity is a prosecution secret and a failure to disclose will not infringe upon the constitutional rights of the defendant. Disclosure of the identity of witnesses to be produced at a hearing or trial shall not be denied.
(g) Regulation of Discovery.
(1) Investigations Not To Be Impeded. Except as otherwise provided by protective orders or as to matters not subject to disclosure, neither the lawyers for the parties nor other prosecution or defense personnel shall advise persons, other than the defendant, who have relevant material or information to refrain from discussing the case with the opposing lawyer or showing the opposing lawyer any relevant material, nor shall they otherwise impede the opposing lawyers investigation of the case. (2) Continuing Duty To Disclose. If, after compliance with this rule or orders pursuant to it, a party discovers additional material or information which is subject to disclosure, he or she shall promptly notify the other party or his or her lawyer of the existence of such additional material. If the additional material or information is discovered during trial, the court shall also be notified. (3) Custody of Materials. Any materials furnished to a lawyer pursuant to these rules shall remain in the exclusive custody of the lawyer and be used only for the purposes of conducting the party's side of the case, unless otherwise agreed by the parties or ordered by the court, and shall be subject to such other terms and conditions as the parties may agree or the court may provide. Further, a defense lawyer shall be permitted to provide a copy of the materials to the defendant after making appropriate redactions which are approved by the prosecuting authority or order of the court. (4) Protective Orders. Upon a showing of cause, the court may at any time order that specified disclosure be restricted or deferred or make such other order as is appropriate, provided that all material and information to which a party is entitled must be disclosed in time to permit his or her lawyer to make beneficial use of it. (5) Excision. When some parts of certain material are discoverable under this rule and other parts are not discoverable, as much of the material shall be disclosed as is consistent with this rule. Material excised pursuant to judicial order shall be sealed and preserved in the records of the court, to be made available to the appellate court in the event of an appeal. (6) In Camera Proceedings. Upon request of any person, the court may permit any showing of cause for denial or regulation of disclosure, or portion of such showing, to be made in camera. A record shall be made of such proceedings. If the court enters an order granting relief following a showing in camera, the entire record of such showing shall be sealed and preserved in the records of the court, to be made available to the appellate court in the event of an appeal. (7) Sanctions. (i) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as it deems just under the circumstances. (ii) The court may at any time dismiss the action if the court determines that failure to comply with an applicable discovery rule or an order issued pursuant thereto is the result of a willful violation or of gross negligence and that the defendant was prejudiced by such failure. (iii) A lawyers willful violation of an applicable discovery rule or an order issued pursuant thereto may subject the lawyer to appropriate sanctions by the court.
[Adopted effective September 1, 1987; September 1, 2005.]
CrRLJ 4.8: SUBPOENAS
(a) Issuance for Witnesses.
The defendant and the prosecuting authority may subpoena witnesses necessary to testify at a scheduled hearing or trial. The subpoena may only be issued by a judge, court commissioner, clerk of the court, or by a party's lawyer. If a party's lawyer issues a subpoena, a copy shall be filed with the court. If the subpoena is for a witness outside the county or counties contiguous with it, the judge must approve the subpoena.
(b) Subpoena Duces Tecum.
(1) Upon application of either party, the court may issue a subpoena duces tecum, commanding the person to whom it is directed to produce books, papers, documents or other objects designated in it. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may, upon their production, permit the books, papers, documents or objects, or portions of them, to be inspected by the parties and their lawyers. (2) On motion made promptly the court may quash or modify the subpoena duces tecum if compliance would be illegal, unreasonable or oppressive.
(c) Service. A subpoena may be directed for service within their jurisdiction to the sheriff of any county or to any peace officer of any municipality in which the witness may be, or it may be served as provided in CRLJ 45(c), or it may be served by first-class mail, postage prepaid, sent to the witness' last known address. Service by mail shall be deemed complete upon the third day following the day upon which the subpoena was placed in the mail.
(d) Proof of Service.
(1) When personal service is made by someone other than a sheriff or peace officer, proof shall be by affidavit or by certification under RCW 9A.72.085 or any law amendatory thereof. (2) Proof of service by mail may be by affidavit or certification, under RCW 9A.72.085 or any law amendatory thereof, of the person who mailed the papers, or by written acknowledgment of service.
(1) If at any time during the proceedings it is brought to the courts attention that a party's lawyer has abused the power to issue subpoenas, the court may impose upon the lawyer such terms as are just. (2) No subpoena shall be the basis for a material witness warrant or a contempt of court citation unless there is proof of personal receipt. (emphasis added)
CrRLJ 4.9: PROCESS--CRIMINAL
The court may issue criminal process to any person anywhere in the state.
CrRLJ 4.10: MATERIAL WITNESS
On motion of the prosecuting authority or the defendant, the court may issue a warrant, subject to reasonable bail, for the arrest of a material witness. The warrant shall issue only on a showing, by affidavit or on the record in open court, that the testimony of the witness is material and that (1) The witness has refused to submit to a deposition ordered by the court pursuant to rule 4.6; or (2) The witness has refused to obey a lawfully issued subpoena; or (3) It may become impracticable to secure the presence of the witness by subpoena. Unless otherwise ordered by the court, the warrant shall be executed and returned as in rule 2.2.
After the arrest of the witness, the court shall hold a hearing no later than the next court day after the witness is present in the county from which the warrant issued. The witness shall be entitled to be represented by a lawyer. The court shall appoint a lawyer for an indigent witness if it is required to protect the rights of the witness.
Upon a determination that the testimony of the witness is material and that one of the conditions set forth in section (a) exists, the court shall set conditions for release of the witness pursuant to rule 3.2. A material witness shall be released unless the court determines that the testimony of such witness cannot be secured adequately by deposition and that further detention is necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to rule 4.6.