Protect Privacy Rights of Victims and Witnesses

Protect the Privacy of Victims and Witnesses of Crime: Reject Criminal Rule 4.8 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.  Victims and witnesses of crime do not choose to be involved in the justice system, but they are essential components of it.  As such, the Washington State Constitution guarantees victims certain rights and proposes to ensure %u201Cvictims a meaningful role in the criminal justice system and to accord them due dignity and respect.%u201D  If enacted, the proposed Criminal Court Rule 4.8 as currently written would hinder %u2013 not improve %u2013 the ability and willingness of victims and witnesses to play their crucial 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%u2019s treatment of victims and witnesses and erode the integrity and credibility of criminal justice in Washington.  We are united in strong opposition to the adoption of proposed Criminal Rule 4.8.

This rule as proposed would allow ANY attorney to issue subpoenas to non-represented parties without any notice for general witnesses and with some notice if the witness is a victim.  The rule removes the responsibility of the moving party to show cause for such records and instead places the responsibility on entities who are not represented in the case at bar to demonstrate that they should NOT be disclosed.  The rule as proposed gives an incredible amount of power to attorneys without anyone ensuring that the requested information is even relevant to the case and puts private citizens in the unknown territory of having to represent their own interests. 

The rule as currently drafted removes the court as a %u201Cgate keeper%u201D for approving subpoenas, increasing the likelihood that witness will need attorneys to represent their interests.  Witnesses should not be put in the position of having to either hire counsel or representing themselves simply because they witnessed a crime.  If the court imposes a rule that creates a circumstance where witness need to oppose motions in a case, then the court should also be providing attorneys to these witnesses to represent their interests.  The prosecuting attorney cannot adequately do this as it may very well be the prosecuting attorney who is subpoenaing the victim or witness%u2019 records.   

The rule is ripe for abuse.  It provides no limits as to the types of information to be subpoenaed or from whom.  Under this rule, 15 year old CPS records of a victim%u2019s family would be subject to subpoena even if no one in the family was a suspect.  Without notice to anyone, the journal of a crime victim%u2019s relative could be demanded.  %u201CFishing expeditions%u201D have long been held as inappropriate by the courts and this rule would overturn that precedent since attorneys could easily use this rule to search for information they hope exists, but have no reason to believe exists.  Witnesses would view these types of s subpoenas as invasive forms of harassment and intimidation.

There is also no provision in the rule to provide for instruction to a witness as how to respond to a subpoena.  The general public as unrepresented individuals and generally unfamiliar with the legal system or court rules and subpoenas will be unaware of their rights to move to quash the subpoena or any other response.  They will be left with the impression that the only recourse is to do exactly what the subpoena says %u2013 produce the records %u2013 completely unaware that they have the right and ability to challenge such a subpoena.  They are also unlikely to have the means or know-how to request protective orders or orders sealing the records, even if the witness suspects that he or she may be able to object to the subpoena.

Subjecting a witness to contempt of court for failing to comply with a subpoena for which there may be no just grounds, for which they may have little to no notice, to which they don%u2019t know and aren%u2019t provided with any instruction on how to object is irresponsible and unfair as well. 

The proponents of this rule have specifically stated in sub-committee meetings that the defense attorneys just want the same power as the State.  It is clear that they want to not only have the same powers as the State, but to surpass those powers.  Certain permissions have indeed been granted to the State that have not been granted to individuals %u2013 to defendants.  These permissions have been granted by the people to the State because society has also tasked the State with upholding law and order.  Furthermore, the burden of proof is on the State and not the defendant.  No such responsibility to uphold law and order or to prove anything lies with defendants and the power of the State (and then some) should not be put in the hands of defendants or private citizens.  Even the State is required to show good cause to the court for obtaining someone%u2019s property.  This proposed rule to allow any attorney %u2013 whether the State or defense counsel %u2013 to issues subpoenas without showing good cause (and even without notice in many cases) would far exceed even the State%u2019s power and would be reckless and very damaging to citizens and their privacy rights. 

The chilling result of this rule would be to allow accused criminals to have access to private property to which they would otherwise have no right.  In other words, if one wants to obtain someone%u2019s private property, all one must do is simply commit a crime and without so much showing good cause and with the blessing of the court, he or she can now access property or information that no upstanding citizen could ever touch.

We urge you to reject proposed Criminal Rule 4.8 and protect the rights of the non-accused citizens of this state.