Protect the Interests of Victims and Witnesses

We the undersigned strongly opposes the adoption of the proposed amendments to Criminal Court Rule 4.6 regarding depositions.  As is made plain from the coversheet included in this proposed rule change, this proposed change seeks the same end as previously proposed criminal rule 4.11, which your honors declined only a few months ago.  

The ability to require a deposition of a witness in Washington State is already equal to if not significantly more liberal than in most other jurisdictions.  The intent in changing this rule is to use the deposition process as a means of forced pretrial discovery of non-parties in a criminal case.  Such a use of the deposition process is quite rare in the United States.  In fact, many states, including Alabama, Arizona, California, Idaho, Louisiana, Massachusetts, Oregon, Tennessee, and Wisconsin specifically give witness the right to refuse a pretrial interview.  In some jurisdictions including Arizona, California, Oregon, Wisconsin and the federal government, the ability to take a pretrial deposition of victims in criminal cases is explicitly disallowed as a means of pretrial discovery. 

Per State v. Wilson 108 Wn. App. 774, a _the defendant has no absolute right to interview potential State witnesses_ and _the witness {is} under no obligation to talk to anyone outside of court._  In State v. Hofstetter 75 Wn. App. 390, 397 (1994) the court cited several cases as well as the American Bar Association Standards for Criminal Justice and itself admitted that a witness has no obligation to speak with anyone prior to trial or outside of court and that the prosecuting attorney may advise witnesses of the right to refuse to give an interview as well as his or her right to determine who shall be present at the interview.  And, while the courts have determined that a defendant has a right to a pretrial interview, the courts also recognize that this right to pretrial access exists co-equally with the witnesses right to refuse to say anything.  United States v. Rice, 550 F.2d 1364 1374 (5th Cic.) cert denied, 434 U.S. 954, 98 S.Ct. 479, 54 L.Ed.2d 312 (1977).

These cases and many others demonstrate the long standing precedent that exists for a witness’ self-determination in whether to give an interview at all and, if giving an interview, to determine when, where, how long, the manner, and what persons shall be present at a pretrial interview.  The proposed changes to this rule fly are contrary not only to years of precedent in Washington but throughout the country.  They also fail to acknowledge that it is not the interests of the prosecution, defense, or court which should be served by recording an interview - it is only the interests of the witness, who alone has the right to determine whether or not it is in his or her own best interests to have an interview recorded.  

The proposed amendments erode the integrity of not only the deposition rule but the criminal justice system and rights of victims and witnesses as well.  The imposition of depositions has rightly been strictly limited in criminal cases as courts generally do not have the authority to order a non-party in a criminal case to do anything except to appear at trial.  As such, a deposition is ordinarily utilized only when a witness is expected to be unavailable to testify at trial.  The proposed amended language lowers the requirements to obtain a deposition to such a degree that it would very likely jeopardize the rights of non-parties who, furthermore, do not have attorneys to represent their interests.  

Of particular concern is the elimination of the requirement that the witness must be material and that a failure of justice would result from not taking a deposition.  The change would mean that the witness need not even be material if a judge believes there is a good reason for a deposition (for proponents of the change, this equates with refusing to have an interview recorded.)  For states that do allow pretrial depositions of some kind, most include the language that the witness must be material and that a failure of justice would occur should the deposition not be taken.   This language is critical to insuring that the imposition of a deposition does not violate the rights of private, non-party citizens.  

Beyond the lowered standard required for ordering a deposition, the manner of recording or taking depositions is also of grave concern.  The language proposes that depositions be allowed to be recorded via means other than a stenographer.  It is self-evident from the multitude of audio and video recordings that the quality of these recordings often lack consistency and many words and whole phrases can be inaudible.  As a deposition is testimony and can be used at trial, it is critical and in the best interests of both parties and the witness that every word be accurately recorded.

We appreciate you taking our concerns into consideration and we urge you to reject the proposed changes to Criminal Court Rule 4.6.