Stop Involuntary Recording of Crime Victims & Witnesses

Protect the Rights and Safety of Victims and Witnesses of Crime: Reject Criminal Rule 4.11 as currently proposed.

The Washington State Constitution recognizes that the cooperation of victims and witnesses is crucial to the functioning of the criminal justice system.  As such, the Washington State Constitution guarantees victims certain rights and proposes to ensure victims a meaningful role in the criminal justice system and to accord them due dignity and respect.  Proposed Criminal Rule 4.11 would force recording on witnesses who, while agreeing to talk about the case and cooperate with pre-trial interviews, do not wish the interview to be recorded.  If adopted, the proposed rule would hinder %u2013 not improve %u2013 the ability and willingness of victims and witnesses to play their critical role in maintaining law, order, and justice in Washington State. 

We, the undersigned, believe the proposed rule would be a significant step backwards in the state's treatment of victims and witnesses and erode the integrity and credibility of criminal justice in Washington We strongly oppose the adoption of proposed Criminal Rule 4.11 and affirm the following:

%uFFFD         Current practices are already sufficient to memorialize witness interviews.

%uFFFD         The rule would hinder the participation of witnesses in the criminal justice system.

%uFFFD         Dissemination of recordings would be dangerous for witnesses.

%uFFFD         The proposed language will not prevent dissemination.

%uFFFD         Witnesses should not have to %u201Copt out%u201D of recording by obtaining approval of the court.

%uFFFD         Recording is not a %u201Cprotection%u201D of the witness.

%uFFFD         Cooperative witnesses should not be subjected to depositions.

%uFFFD         No standards are established.

%uFFFD         No requirement exists to notify the witness of the right to refuse recording.

%uFFFD         The decision to record lies with the witness, not an attorney or the court.

%uFFFD         A rule that explicitly recognizes a witness%u2019 right to refuse recording would address the interests of all parties.

Current practices are already sufficient to memorialize witness interviews

Proponents suggest that this is a crucial change to the court rules.  However, there has been no evidence presented that when a witness agrees to be interviewed, but declines to have the statement recorded, that justice is somehow being impeded.  Attorneys already utilize private investigators, ask thorough questions, take accurate notes, review witness statements, and cross-examine the witnesses.  These practices are already sufficient to protect the rights of the accused and compelled recording of witness interviews does nothing to enhance this.

The rule would hinder the participation of witnesses in the criminal justice system

Instead, compelled interviews would hinder the ability and willingness of witnesses to participate in the criminal justice system.  If this rule were put into practice, the public would soon discover that in order to seek justice through our system, they must not only testify in front of the accused at trial, but that they must submit to recorded pre-trial interviews, which the defendant will likely hear, with only the hope that it will not be disclosed to others.  This is a terrifying thought for many witnesses, especially victims of sexual assault or child abuse, and would likely prevent victims from coming forward and allow damaging criminal behavior to flourish.

Dissemination of recordings would be dangerous for witnesses

The fear of who may obtain a copy of a recorded interview which captures his or her voice often revealing very raw and real emotions and describes extremely sensitive and private information cannot be underestimated.  Most if not all of the proposed compulsory recordings would be done electronically.  In this digital age the potential for this information to fall into the wrong hands and in a matter of minutes be circulated all over the Internet is terrifying and could result in devastating to deadly results for the witness.  Suppose a witness agrees to an interview in a gang violence case.  Were this recording to become public somehow, the exposure to the witness could result in anything from harassment from family, friends, and fellow gang members of the defendant to attacks on the witness' life.

The proposed language will not prevent dissemination

The restriction on dissemination of the audio recordings as proposed in the rule is an insufficient protection and in itself recognizes one of the primary reasons that witnesses do not wish to submit to a recorded interview.  The proponents of the rule suggest the current draft language on dissemination in order to prohibit the distribution of recordings beyond the parties involved in the criminal case.  However, when the bar subcommittee did an informal poll to determine if counties would in fact disseminate the recording when considering the proposed language if they received a public information request, the result came back approximately 50/50 on who would disclose versus who would not.  A 50% chance that a recorded interview would not be disclosed to the public is laughable as a protection to witnesses.  When this was pointed out to the sub-committee, the response was "that's the best we can do."  It very likely in fact is the best that can be done to prevent disclosure to non-party participants in a criminal case, which is a compelling reason NOT to enact a rule that compels the audio or video recording of witness interviews.

Witnesses should not have to %u201Copt out%u201D of recording by obtaining approval of the court

Victims and witnesses should also not be compelled to "opt out" of recorded interviews by presenting their case/reasons to the court, especially as they are unrepresented parties in criminal actions.  The current policies already allow for the better practice of witnesses opting in by agreeing to submit to a recording if they choose.  This is sufficient.  Witnesses should not have to go before the court to explain why they don't want an interview recorded, especially when proponents of compulsory recording of pre-trial interviews have not provided sufficient evidence that recording is a necessary element of justice.  Once again, this result of such a rule would be to further intimidate witnesses and inhibit their right to a meaningful role in the criminal justice system.  It would also make the system more cumbersome for all involved.  

Recording is not a protection of the witness

While it has been said that one of the reasons for needing the forced recording of witness interviews is that witnesses lie or change their stories (we believe this is sufficiently addressed by current interview practices,) it has also been suggested that recording of interviews will actually protect the witness.  As the rules currently stand, any witness wishing to protect themselves through the recording of their pre-trial interview already has the choice to do so if they believe that a recording is in their best interest.  However, one should not force this circumstance on any witness in the criminal justice system; the choice should remain in the hands of the witness.

Cooperative witnesses should not be subjected to depositions

As the rule is proposed, refusing to submit to a recorded interview would result in the ability of an attorney to seek a deposition of the witness.  As some witnesses will still refuse to be recorded during their interview, this will likely increase the number of depositions that are sought and be cost- and time-consuming for the court.  This is an unnecessary expense and waste of time when witnesses are willing to answer questions without a recording.

No standards are established

Furthermore, no basic standards have been listed to ensure the accuracy and fairness of any such recordings.  The proposed rule reflects a lack of awareness or disregard for the extensive protocols and procedures that have been implemented throughout the state to ensure that electronic and/or near verbatim recordings are accurate and complete.  Policy makers have consistently emphasized the importance of accurate documentation, particularly in cases involving child victims, and have established standards such as the Child Sexual Abuse Investigation Protocols, of which this rule makes no mention.  If recorded interviews are to be compelled, then guidelines and standards must be established.

No requirement exists to notify the witness of the right to refuse recording

Victims and witnesses must also be informed of their right to object to the recording of an interview.  They are not familiar with the criminal justice system and are usually unrepresented participants.  The impact of the crime on a witness%u2019s life can make many witnesses particularly susceptible to intimidation and less capable of asserting their rights.  At the very least, a required formalized process of informing a witness of his/her rights should be required.  And if the courts are going to infringe upon the rights of non-party private citizens, the court should provide attorneys to represent the interests of those unrepresented private citizens. 

The decision to record lies with the witness, not an attorney or the court

There has also been discussion that both defense and prosecuting attorneys like to have audio recordings and that this somehow justifies the recordings.  But the fact that many witnesses submit to interviews or that it is convenient for the attorneys is not a basis to strip a witness of the choice not to be recorded.  The few who elect not to be recorded have legitimate reasons for doing so and the decision should continue to rest with them - not with a judge or an attorney (either prosecution or defense) who does not have the best interests of the witness as their primary goal.

This rule has been presented many times for consideration with little to no change.  We strongly urge you to reject the rule as currently proposed and we urge you to acknowledge at last that the choice to record an interview lies with only one person: the witness.