THE QUEST FOR
JUSTICE 2005
Prosecutorial Ethics And Professionalism
(Second Edition)
THE QUEST FOR
JUSTICE 2005
Prosecutorial Ethics And Professionalism
(Second Edition)
A Washington Association of Prosecuting Attorneys
Lecture Given on June 3, 2005 By–
Jeffrey J. Jahns
Chief Deputy Prosecuting Attorney
District & Municipal Court Division
Kitsap County Prosecuting Attorney’s Office
614 Division Street, MS-35
Port Orchard, WA 98366
360.337.4982; JJahns@co.kitsap.wa.us
ACKNOWLEDGMENT
PAMELA B. LOGINSKY. A continuing thank you to Pamela B. Loginsky, Staff Attorney, Washington
Association of Prosecuting Attorneys, for her assistance in referring cases of particular merit for this
project. Pam’s unwavering support is invaluable, and greatly appreciated.
ABOUT THE AUTHOR
JEFFREY J. JAHNS. Jeff is is the recipient of the 2004 Washington State Bar Association Professionalism
Award “in recognition of his impeccable professionalism and unwavering dedication to improving the
justice system in Kitsap County and throughout Washington.” He also received the 1995 Professionalism
Award given by the Kitsap County Bar Association “in recognition of sustained excellence in the practice
of law.” In September 2002, the publication Washington Law & Politics named 934 “Super Lawyers” as
chosen by the legal community. Jeff was one of only eight prosecutors selected as a “Super Lawyer.” He
was again named a “Super Lawyer” in 2003 and 2004.
Jeff received his undergraduate degree from the University of Puget Sound in 1978 and his law degree from
the University of Puget Sound School of Law in 1981.
He was a partner in the law firm of Kindig & Jahns in Tacoma, Washington from 1982 to 1986. Jeff was
an associate in the Port Orchard, Washington law firm of Ronald D. Ness & Associates from 1987 to 1994.
Jeff joined the Kitsap County Prosecuting Attorney’s Office on January 1, 1995, and is the supervising
attorney of the District and Municipal Court Division.
Jeff is a frequent presenter at seminars sponsored by the Washington Association of Prosecuting Attorneys,
having lectured to hundreds of Washington State prosecutors on topics including prosecutorial ethics, case
law updates, plea negotiations, DUI, appeals and Freemen. He also spoke on the topic of prosecutorial
ethics at the National District Attorneys Association’s Summer Conference in June 2000, at the Idaho
Prosecuting Attorneys Association’s Winter Conference in February 2002, at the Iowa County Attorneys
Fall Training Conference in November 2002, and at the Seattle University School of Law in 2002 and
2003. Jeff has also lectured at the Washington Criminal Justice Institute in 1998 and 1999, the Washington
Judicial Conference in 1999, the Washington State Bar Association Government Lawyers Conference
(2000), and District and the Municipal Court Judges’ Association (2003).
Any comments made herein are those of the author and not necessarily those of the Kitsap County
Prosecutor’s Office.
THE QUEST FOR JUSTICE — 2005 SECOND EDITION
This QUEST FOR JUSTICE prosecutorial ethics manual began in 1996 when the author was asked to speak on
the topic of prosecutorial ethics at the Washington Association of Prosecuting Attorney’s spring seminar in
Olympia. Given that the author had little knowledge on the issue, admittedly the 1996 effort was lacking in
both substantive materials and in presentation. Despite the poor performance, WAPA mysteriously gave the
author a second chance to improve. Over the next decade, the manual grew in size and sophistication, as
did the presentation. Today, the manual is over 300 pages long and the PowerPoint presentation includes
over 350 slides. The manual and slides have become quite useful in helping to quickly find answers to
almost daily questions about prosecutorial ethics. Perhaps more importantly, the manual and slides have
become invaluable as a tool in helping the author train newly hired Kitsap County deputy prosecutors.
As a former criminal defense attorney, the author had some knowledge about prosecutorial ethics through
the ABA Standards for Criminal Justice. Given the extensive citation to the ABA Standards in caselaw, the
organizational premise for this manual was (and is) based upon the ABA Standards. A quick trip to the
Kitsap County Law Library in 1996 revealed a four volume 1986 second edition ABA Standard treatise.
Unbeknownst to the author until reading a new Washington appellate case in August 2004, in 1988 the
ABA began the process of adopting a third edition of the ABA Standards which was completed in 1993. As
noted in the Introduction to the third edition, the Standards were revised in large part to “reflect the
dramatic developments in the field of legal ethics” since the second edition Standards were published. Also
important from a prosecutorial ethics perspective was the 1991 second edition of the National District
Attorneys Association’s NATIONAL PROSECUTION STANDARDS, which was incorporated into the third
edition of the ABA Standards.
After the author’s shock and awe dissipated over realization that the ABA Standards discussed in the
QUEST FOR JUSTICE for over a decade were outdated, the time has come to completely update the QUEST
FOR JUSTICE by using the current third edition of the ABA Standards. Thus, the 2005 second edition of the
QUEST FOR JUSTICE has been born.
The ABA Standards are available at <http://www.abanet.org/crimjust/standards/home.html>. The ABA
website provides a complete Table of Contents with links to the “black letter” Standards, which were
approved by the American Bar Association’s House of Delegates in February 1992. The Standards are
published along with commentary in ABA STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION FUNCTION
AND DEFENSE FUNCTION, 3rd, © 1993 by the American Bar Association. For purchasing information,
please visit the Standards Ordering Information page on the ABA’s website.
COPYRIGHT AND REPRODUCTION
© 2005 Kitsap County Prosecuting Attorney’s Office. All rights reserved.
Permission to reproduce any portion of these materials is granted to prosecutors, courts and Kitsap County
attorneys on the condition that the Kitsap County Prosecuting Attorney’s Office is credited.
SUMMARY CONTENTS
Summary Contents .............................................................................................................. i
Contents .............................................................................................................................. a
Introduction........................................................................................................................ a
Part I. General Standards ................................................................................................. 1
Standard 3-1.1 The Function of the Standards ....................................................................... 1
Standard 3-1.2 The Function of the Prosecutor ...................................................................... 2
Standard 3-1.3 Conflicts of Interest ......................................................................................... 9
Standard 3-1.4 Public Statements .......................................................................................... 30
Standard 3-1.5 Duty to Respond to Misconduct ................................................................... 31
Part II. Organization of the Prosecution Function ....................................................... 32
Standard 3-2.1 Prosecution Authority to be Vested in a Public Official ............................ 32
Standard 3-2.2 Interrelationship of Prosecution Offices Within a State ............................ 36
Standard 3-2.3 Assuring High Standards of Professional Skill ........................................... 37
Standard 3-2.4 Special Assistants, Investigative Resources, Experts.................................. 38
Standard 3-2.5 Prosecutor's Handbook; Policy Guidelines and Procedures ..................... 39
Standard 3-2.6 Training Programs ........................................................................................ 40
Standard 3-2.7 Relations With Police .................................................................................... 41
Standard 3-2.8 Relations With the Courts and Bar.............................................................. 50
Standard 3-2.9 Prompt Disposition of Criminal Charges .................................................... 54
Standard 3-2.10 Supercession and Substitution of Prosecutor ............................................ 81
Standard 3-2.11 Literary or Media Agreements ................................................................... 82
Part III. Investigation for Prosecution Decision ........................................................... 83
Standard 3-3.1 Investigative Function of Prosecutor ........................................................... 83
Standard 3-3.2 Relations With Victims and Prospective Witnesses.................................... 92
Standard 3-3.3 Relations With Expert Witnesses ............................................................... 105
Standard 3-3.4 Decision to Charge ....................................................................................... 106
Standard 3-3.5 Relations with Grand Jury ......................................................................... 123
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
–i–
SUMMARY CONTENTS
Standard 3-3.6 Quality and Scope of Evidence Before Grand Jury ................................. 124
Standard 3-3.7 Quality and Scope of Evidence for Information ....................................... 125
Standard 3-3.8 Discretion as to Noncriminal Disposition .................................................. 126
Standard 3-3.9 Discretion in the Charging Decision .......................................................... 152
Standard 3-3.10 Role in First Appearance and Preliminary Hearing .............................. 185
Standard 3-3.11 Disclosure of Evidence by the Prosecutor ............................................... 186
Part IV. Plea Discussions ............................................................................................. 219
Standard 3-4.1 Availability for Plea Discussions ................................................................ 219
Standard 3-4.2 Fulfillment of Plea Discussions ................................................................... 226
Standard 3-4.3 Record of Reasons for Nolle Prosequi Disposition ................................... 242
Part V. The Trial ........................................................................................................... 243
Standard 3-5.1 Calendar Control ......................................................................................... 243
Standard 3-5.2 Courtroom Professionalism ........................................................................ 244
Standard 3-5.3 Selection of Jurors ....................................................................................... 251
Standard 3-5.4 Relations With Jury..................................................................................... 265
Standard 3-5.5 Opening Statement ...................................................................................... 267
Standard 3-5.6 Presentation of Evidence ............................................................................. 269
Standard 3-5.7 Examination of Witnesses ........................................................................... 273
Standard 3-5.8 Argument to the Jury .................................................................................. 307
Standard 3-5.9 Facts Outside the Record ............................................................................ 353
Standard 3-5.10 Comments by Prosecutor After Verdict .................................................. 355
Part VI. Sentencing ....................................................................................................... 356
Standard 3-6.1 Role in Sentencing ....................................................................................... 356
Standard 3-6.2 Information Relevant to Sentencing .......................................................... 357
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
– ii –
CONTENTS
Summary Contents .............................................................................................................. i
Contents .............................................................................................................................. a
Introduction........................................................................................................................ a
Part I. General Standards ................................................................................................. 1
Standard 3-1.1 The Function of the Standards ....................................................................... 1
Excerpt from Commentary to ABA Standard .......................................................................................... 1
Standard 3-1.2 The Function of the Prosecutor ...................................................................... 2
Excerpt from Commentary to ABA Standard .......................................................................................... 2
RCW 36.27.020 Duties of a Prosecuting Attorney ................................................................................. 2
RPC 3.8 Special Responsibilities of a Prosecutor .................................................................................. 2
Case Law — Defendant’s Right to Self-Represenation (Faretta) ........................................................... 3
Kitsap Prosecutor’s Office — Sample Form — Faretta Waiver............................................................. 4
Case Law — Recoupment of Indigent Appellate Costs .......................................................................... 6
Case Law — Contact With Suspect — Prosecutor Suspended for Pretending to be Defense
Attorney to Convince Suspect to Surrender ...................................................................................... 6
Case Law — Contact With Represented Defendant ................................................................................ 8
Standard 3-1.3 Conflicts of Interest ......................................................................................... 9
Excerpt from Commentary to ABA Standard .......................................................................................... 9
Rules of Professional Conduct .............................................................................................................. 10
Case Law — Prosecution of Former Client ........................................................................................... 10
Case Law — Prosecution of Criminal Defense Attorney ...................................................................... 11
Case Law — Deputy Prosecutor as Witness ......................................................................................... 12
Case Law — The Appearance of Fairness Doctrine .............................................................................. 14
Effective Screening — The “Chinese Wall” ......................................................................................... 15
Kitsap Prosecutor’s Office — Conflict of Interest Screening Process .................................................. 17
Case Law — Defense Counsel Conflict of Interest — Duty of Court to Inquire .................................. 17
Case Law — Defense Counsel Conflict of Interest — Duty of Prosecutor to Notify Court ................. 23
Case Law — Defense Counsel Conflict of Interest — Counsel’s Waiver of Attorney-Client
Privilege .......................................................................................................................................... 24
Kitsap Prosecutor’s Office — Sample Form — Waiver of Defense Counsel’s Conflict of
Interest ............................................................................................................................................. 25
Case Law — Civil Conflicts .................................................................................................................. 29
Standard 3-1.4 Public Statements .......................................................................................... 30
Excerpt from Commentary to ABA Standard ........................................................................................ 30
RPC 3.6 Trial Publicity ........................................................................................................................ 30
Guidelines for Applying RPC 3.6 .......................................................................................................... 30
Bench–Bar–Press Committee Statement of Principles .......................................................................... 30
1-
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
–a–
CONTENTS
Standard 3-1.5 Duty to Respond to Misconduct ................................................................... 31
Excerpt from Commentary to ABA Standard ........................................................................................ 31
Part II. Organization of the Prosecution Function ....................................................... 32
Standard 3-2.1 Prosecution Authority to be Vested in a Public Official ............................ 32
Excerpt from Commentary to ABA Standard ........................................................................................ 32
Citizen Complaint — Kitsap Prosecutor’s Office Sample Memorandum ............................................. 32
Standard 3-2.2 Interrelationship of Prosecution Offices Within a State ............................ 36
Excerpt from Commentary to ABA Standard ........................................................................................ 36
Standard 3-2.3 Assuring High Standards of Professional Skill ........................................... 37
Excerpt from Commentary to ABA Standard ........................................................................................ 37
RCW 36.27.050 — Special emoluments prohibited .............................................................................. 37
RCW 36.27.060 — Private practice prohibited in certain counties — Deputy prosecutors .................. 37
Standard 3-2.4 Special Assistants, Investigative Resources, Experts.................................. 38
Excerpt from Commentary to ABA Standard ........................................................................................ 38
Standard 3-2.5 Prosecutor's Handbook; Policy Guidelines and Procedures ..................... 39
Excerpt from Commentary to ABA Standard ........................................................................................ 39
Kitsap Prosecutor’s Office — Mission Statement & Standards and Guidelines ................................... 39
RCW 9.94A.401 et seq. — Recommended Prosecuting Standards ...................................................... 39
Standard 3-2.6 Training Programs ........................................................................................ 40
Excerpt from Commentary to ABA Standard ........................................................................................ 40
Standard 3-2.7 Relations With Police .................................................................................... 41
Excerpt from Commentary to ABA Standard ........................................................................................ 41
Case Law — RPC 4.2’s No Contact Prohibition with Represented Person Unless Consent of
Other Lawyer or “Lawyer is Authorized by Law to do so” — Pre-Charging ................................. 41
Case Law — RPC 4.2’s No Contact Prohibition with Represented Person Unless Consent of
Other Lawyer or “Lawyer is Authorized by Law to do so” — Post-Charging ............................... 46
Standard 3-2.8 Relations With the Courts and Bar.............................................................. 50
Excerpt from Commentary to ABA Standard ........................................................................................ 50
Case Law — Ex Parte Proceedings — Duty of Candor ........................................................................ 51
Case Law — Ex Parte Proceedings — Prosecution’s Motion to Dismiss Without Prejudice ............... 51
Case Law — Impugning Integrity of Judge in Pleadings ...................................................................... 52
Judicial Ethics Opinion — Personal Friends with Counsel ................................................................... 52
Standard 3-2.9 Prompt Disposition of Criminal Charges .................................................... 54
Excerpt from Commentary to ABA Standard ........................................................................................ 54
Case Law — Preaccusatorial Delay ...................................................................................................... 54
Time for Trial. See Also Speedy Trial. .................................................................................................. 56
Time for Trial — Continuance — Non-Trial Hearings — Trial Clock Continues to Run .................... 56
Case Law — Speedy Arraignment or Trial — Prosecutor Knowledge of Speedy Clock Running ....... 57
Case Law — Speedy Arraignment — Delay in Bringing Defendant Before Court — Striker,
Peterson and Anderson Rules ......................................................................................................... 57
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
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CONTENTS
Case Law — Speedy Trial — Commencement of Clock — Posting Bail, Signed Release
Agreement, and Property Held for Civil Forfeiture ........................................................................ 70
Case Law — Speedy Trial — Commencement of Trial — Preliminary Motions ................................. 70
Case Law — Speedy Trial — Competency Proceedings ...................................................................... 71
Case Law — Speedy Trial — Continuance Tolls Running ................................................................... 71
Case Law — Speedy Trial — Continuances vs. Extensions for Unforeseen or Unavoidable
Circumstances ................................................................................................................................. 71
Case Law — Speedy Trial — Counsel & Prosecutor Unavailability .................................................... 72
Case Law — Speedy Trial — Court Congestion ................................................................................... 73
Case Law — Speedy Trial — Crime Lab Congestion ........................................................................... 74
Case Law — Speedy Trial — Defendant’s Failure to Appear — Excused Absence ............................ 74
Case Law — Speedy Trial — Defendant’s Failure to Appear — Late for Court .................................. 74
Case Law — Speedy Trial — Defense Counsel Conflict of Interest ..................................................... 75
Case Law — Speedy Trial — Defense Counsel Needs Time to Prepare .............................................. 75
Case Law — Speedy Trial — Failure to Subpoena Witnesses .............................................................. 76
Case Law — Speedy Trial — Felony Initially Filed in District Court .................................................. 76
Case Law — Speedy Trial — Forcing Speedy Trial Waiver by Late Amendment of Charges............. 77
Case Law — Speedy Trial — Infraction Resolution Before Criminal Conviction ............................... 77
Case Law — Speedy Trial — Illness of Witness or Counsel ................................................................ 77
Case Law — Speedy Trial — Judicial Conference ............................................................................... 78
Case Law — Speedy Trial — Military Mobilization ............................................................................ 78
Case Law — Speedy Trial — Runs Until Dismissal Order Entered ..................................................... 79
Case Law — Speedy Trial — Training ................................................................................................. 79
Case Law — Speedy Trial — Vacations ............................................................................................... 79
Case Law — Speedy Trial — Waiver — Dismissal and Re-Filing ....................................................... 80
Standard 3-2.10 Supercession and Substitution of Prosecutor ............................................ 81
Excerpt from Commentary to ABA Standard ........................................................................................ 81
Const. art. 4, § 9 — Removal of Judges, Attorney General, Etc. .......................................................... 81
RCW 43.10.090 — Criminal investigations — Supervision ................................................................. 81
Conflict of Interest ................................................................................................................................. 81
Standard 3-2.11 Literary or Media Agreements ................................................................... 82
Excerpt from Commentary to ABA Standard ........................................................................................ 82
Part III. Investigation for Prosecution Decision ........................................................... 83
Standard 3-3.1 Investigative Function of Prosecutor ........................................................... 83
Excerpt from Commentary to ABA Standard ........................................................................................ 83
RPC 3.4 (a) Fairness to Opposing Party and Counsel .......................................................................... 84
WSBA Published Informal Opinion 88-2 .............................................................................................. 84
Case Law — Duty to Correct Perjured Testimony ................................................................................ 84
Case Law — Duty to Investigate Possible Perjury Initiated By Counsel or Another Witness .............. 86
Case Law — Duty to Investigate Possible Perjury of Rewarded Co-Defendant Called By The
Prosecution Who May Be Framing Another ................................................................................... 87
Case Law — Misconduct to Advise Witness Not to Speak with Counsel Unless Prosecutor
Present ............................................................................................................................................. 89
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
–c–
CONTENTS
Case Law — Misconduct to Ask Witness Questions About Out-Of-Court Conversation With
Prosecutor........................................................................................................................................ 90
Case Law — Misconduct to Prejudice Defense Witnesses ................................................................... 90
Standard 3-3.2 Relations With Victims and Prospective Witnesses.................................... 92
Excerpt from Commentary to ABA Standard ........................................................................................ 92
Witness Preparation vs. Witness Coaching (aka Tampering) ................................................................ 93
Case Law — Inducing Co-Defendant (or Any Witness) Not to Testify for Defendant, aka
Bribery ............................................................................................................................................ 94
SRA Charging and Plea Disposition Standards — RCW 9.94A.411(2)(b) — Victims ........................ 95
Kitsap Prosecutor’s Office — Sample Memorandum — Prosecutor’s Duty to Warn Witnesses
of Their Rights ................................................................................................................................ 95
Prosecutor’s Duty to Warn Witnesses of Their Rights — Jahns’ Memo in Prosecutor Bar
Discipline Matter ............................................................................................................................. 96
Const. art. 1, § 35 — Victims of Crimes — Rights ............................................................................. 101
RCW 7.69.030 — Rights of victims, survivors, and witnesses ........................................................... 101
ER 615. Exclusion of Witnesses .......................................................................................................... 102
RCW 7.69A.030 — Rights of child victims and witnesses ................................................................. 102
RCW 7.69A.040 — Liability for failure to notify or assure child’s rights .......................................... 102
RCW 7.69A.050 — Rights of child victims and witnesses ................................................................. 102
RCW 10.99.060 — Notification of victim of prosecution decision .................................................... 103
GR 31(e) and CrR 2.1(a)(2), CrRLJ 2.1(a)(3), JuCR 7.2(a) — Personal Identifiers in Court
Records.......................................................................................................................................... 103
Standard 3-3.3 Relations With Expert Witnesses ............................................................... 105
Excerpt from Commentary to ABA Standard...................................................................................... 105
Standard 3-3.4 Decision to Charge ....................................................................................... 106
Excerpt from Commentary to ABA Standard ...................................................................................... 106
SRA Charging and Plea Disposition Standards — RCW 9.94A.411(2)(b) — Police
Investigation .................................................................................................................................. 106
Citizen Complaint ................................................................................................................................ 106
Case Law — Agreement to Not Prosecute by Police .......................................................................... 107
Case Law — Agreement to Not Prosecute by Prosecution — Immunity ............................................ 107
Case Law — Defendant’s Constitutional Right to Notice of Essential Elements — Leach and
Kjorsvik Rules ............................................................................................................................... 108
Case Law — Vacation of Invalid No Contact Order Prior to Charging Decision ............................... 122
Standard 3-3.5 Relations with Grand Jury ......................................................................... 123
Excerpt from Commentary to ABA Standard ...................................................................................... 123
Seattle University Law Review Article ............................................................................................... 123
Standard 3-3.6 Quality and Scope of Evidence Before Grand Jury ................................. 124
Excerpt from Commentary to ABA Standard ...................................................................................... 124
Standard 3-3.7 Quality and Scope of Evidence for Information ....................................... 125
Excerpt from Commentary to ABA Standard ...................................................................................... 125
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
–d–
CONTENTS
Standard 3-3.8 Discretion as to Noncriminal Disposition .................................................. 126
Excerpt from Commentary to ABA Standard ...................................................................................... 126
Deferred Prosecution — RCW 10.05 .................................................................................................. 126
Compromise of Misdemeanors — RCW 10.22 ................................................................................... 128
Kitsap Prosecutor’s Office — Sample Form — Pre-Trial Diversion Agreement................................ 129
Pre-Trial Diversion Agreements — Judicial Ethics Advisory Opinion 04-05..................................... 136
Pre-Trial Diversion Agreements — Jahns’s August 20, 2004 Analysis of Judicial Ethics
Advisory Opinion 04-05................................................................................................................ 138
Pre-Trial Diversion Agreements — Kitsap’s Response to Judicial Ethics Advisory Opinion 0405 — The PDA Addendum ........................................................................................................... 141
Kitsap Prosecutor’s Office — Sample Certificate of Counsel — History of Pre-Trial Diversion
Agreement ..................................................................................................................................... 145
Kitsap Prosecutor’s Office — Sample Memorandum — Motion to Revoke Pretrial Diversion
Agreement ..................................................................................................................................... 146
Standard 3-3.9 Discretion in the Charging Decision .......................................................... 152
Excerpt from Commentary to ABA Standard ...................................................................................... 152
RPC 3.8(a) — Probable Cause Required ............................................................................................. 153
Civil Liability — Qualified vs. Absolute Immunity for Prosecutor .................................................... 153
Civil Liability — Duty to Promptly Release Warrant Detainee Once Know or Should Know
Wrong Person Being Held............................................................................................................. 156
SRA Charging and Plea Disposition Standards — RCW 9.94A.411(1) — Decision to Decline ........ 156
SRA Charging and Plea Disposition Standards — RCW 9.94A.411(2) — Decision to Prosecute ..... 157
SRA Charging and Plea Disposition Standards — RCW 9.94A.411(2) — Selection of Charges....... 157
Case Law — Prosecutorial Discretion — Charging Decision ............................................................. 157
Case Law — Prosecutorial Discretion — Charging Decision — Civil Contempt .............................. 158
Case Law — Prosecutorial Discretion — Charging Decision — Crime or Infraction ........................ 158
Case Law — Prosecutorial Discretion — Crimes Including Identical Elements ................................ 158
Case Law — Prosecutorial Discretion — Number of Counts — Double Jeopardy, “Unit of
Prosecution” & Merger ................................................................................................................. 159
Case Law — Limitation on Charging Decision — After Mistrial ....................................................... 164
Case Law — Limitation on Charging Decision — After State Rests .................................................. 164
Case Law — Limitation on Charging Decision — Fixed Formula Prohibited .................................... 165
Case Law — Limitation on Charging Decision — Forcing Speedy Trial Waiver .............................. 165
Case Law — Limitation on Charging Decision — General vs. Specific Crimes ................................ 167
Case Law — Limitation on Charging Decision — Lengthy Delay and 8.3(b) Dismissal ................... 167
Case Law — Limitation on Charging Decision — Selective Prosecution Prohibited ......................... 168
Case Law — Limitation on Charging Decision — Prosecutorial Vindictiveness Pre-Trial —
Threat of Risk of More Severe Punishment .................................................................................. 168
Case Law — Limitation on Charging Decision — Prosecutorial Vindictiveness Post-Trial —
Presumption of Vindictiveness ...................................................................................................... 170
Case Law — Sentence Enhancements — Historical Facts (Prior Conviction) vs. Facts Arising
From Incident (Const. art. 1 § 21 and Apprendi) .......................................................................... 174
Case Law — Actions Premised upon Promises Not to Sue ................................................................. 181
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
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CONTENTS
Standard 3-3.10 Role in First Appearance and Preliminary Hearing .............................. 185
Excerpt from Commentary to ABA Standard ...................................................................................... 185
Standard 3-3.11 Disclosure of Evidence by the Prosecutor ............................................... 186
Excerpt from Commentary to ABA Standard ...................................................................................... 186
Case Law — Constitutional Duty to Disclose Exculpatory Evidence (Brady Rule) ........................... 186
Case Law — Constitutional Duty to Disclose Exculpatory Evidence — Right to Impeachment
Evidence Waived if Guilty Plea .................................................................................................... 194
Case Law — Court Rule Duty to Disclose All Material Evidence — CrR 4.7(a)(3) and CrRLJ
4.7(a)(3)......................................................................................................................................... 194
Case Law — Duty to Disclose “Agreement” With Witness for Favorable Testimony ....................... 195
Case Law — Duty to Disclose If “Mere Possibility” Prosecution “Intends to Use” Evidence ........... 196
Case Law — Duty to Disclose Victim Advocate Notes When Advocate Employed by
Prosecution .................................................................................................................................... 197
Case Law — Duty to Disclose Victim Recantation — Garcia Prosecutor Notes ............................... 197
Case Law — Duty to Disclose Witness’s Convictions ........................................................................ 198
Case Law — But No Duty to Disclose Witness’s Arrests, Pending Charges or Probation ................. 198
Case Law — Preservation of Evidence — Material Exculpatory Evidence — Wittenbarger
Two-Part Test ................................................................................................................................ 199
Case Law — Preservation of Evidence — Potentially Exculpatory Evidence — Police Bad
Faith Required ............................................................................................................................... 200
Kitsap Prosecutor’s Office — Sample Memorandum — Destruction Or Loss Of Evidence .............. 201
Case Law — No Duty to Search for Exculpatory Evidence ................................................................ 205
Case Law — No Duty to Ascertain “True” Identity of Witness .......................................................... 205
Case Law — Continuing Duty to Promptly Disclose .......................................................................... 206
Case Law — Duty to Obtain Material Held by Others or Secure Defense Interviews Upon
Defense Request ............................................................................................................................ 207
Case Law — Inadvertent Receipt of Privileged Defense Materials .................................................... 211
Case Law — Sanctions for Discovery Violation ................................................................................. 212
Kitsap Prosecutor’s Office — Sample Memorandum — Response to Request for a Bill of
Particulars, CrRLJ 2.4(e) ............................................................................................................... 214
Part IV. Plea Discussions ............................................................................................. 219
Standard 3-4.1 Availability for Plea Discussions ................................................................ 219
Excerpt from Commentary to ABA Standard ...................................................................................... 219
Plea Agreements — RCW 9.94A.421 ................................................................................................. 219
SRA Charging and Plea Disposition Standards — RCW 9.94A.450 — Plea Dispositions................. 220
Case Law — Propriety of Plea Bargaining .......................................................................................... 220
Case Law — Plea Proposal — Agreed Improper Criminal History Not Permitted ............................. 220
Case Law — Plea Proposal — Immigration Consequences ................................................................ 221
Case Law — Plea Proposal — Prosecutor Revocation Prior to Entry of Guilty Plea ......................... 221
Case Law — Plea Proposal — Promising Leniency to Another aka “Package Deal” ......................... 222
Case Law — Plea Proposal — Reduction of Counts if Stipulated Bench Trial .................................. 224
Case Law — Plea Proposal — Waiver of Right to Appeal ................................................................. 225
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
–f–
CONTENTS
Standard 3-4.2 Fulfillment of Plea Discussions ................................................................... 226
Excerpt from Commentary to ABA Standard ...................................................................................... 226
Case Law — Plea When Defendant Claims Innocence; Knowing, Intelligent and Voluntary
Waiver of Right to Trial and Factual Basis for Plea (Alford Plea) ................................................ 226
Case Law — Plea to Reduced Charge Lacking Factual Basis; Factual Basis Supports Original
Charge ........................................................................................................................................... 228
Case Law — Pro Se Plea — Sixth Amendment Does Not Require Extensive Colloquy .................... 228
Case Law — Duty to Honor Plea Agreement ...................................................................................... 229
Case Law — Duty to Honor Plea Agreement — “Enthusiastic” Recommendation Not Required ..... 231
Case Law — Different Understandings of Material Term — Mutual Mistake ................................... 232
Case Law — Plea Agreement — Inaccurate Advice ........................................................................... 234
Case Law — Plea Agreement Breach by Defendant — Remedy ........................................................ 235
Case Law — Plea Agreement Breach by Prosecutor — Remedy ....................................................... 235
Case Law — Advising Court of Witnesses Who Want to Testify ....................................................... 236
Case Law — Court Rejects Guilty Plea .............................................................................................. 236
Case Law — Court Reneges on Promised Sentence — Remedy ........................................................ 237
Case Law — Duty to Advocate Court’s Position on Appeal ............................................................... 237
Case Law — Duty to Conduct Hearing if Court Requests .................................................................. 238
Case Law — Poor Drafting by Prosecution......................................................................................... 240
Standard 3-4.3 Record of Reasons for Nolle Prosequi Disposition ................................... 242
Excerpt from Commentary to ABA Standard ...................................................................................... 242
Part V. The Trial ........................................................................................................... 243
Standard 3-5.1 Calendar Control ......................................................................................... 243
Excerpt from Commentary to ABA Standard ...................................................................................... 243
RCW 10.46.085 — Continuances not permitted in certain cases ........................................................ 243
Case Processing Time Standards ......................................................................................................... 243
Standard 3-5.2 Courtroom Professionalism ........................................................................ 244
Excerpt from Commentary to ABA Standard ...................................................................................... 244
Case Law — Contempt Sanctions Against Counsel ............................................................................ 244
Case Law — Disobedience of Court Ruling ....................................................................................... 248
Case Law — Encouraging Witness to Disobey Court Order............................................................... 248
Case Law — Police Intrusion into Attorney-Client Communications................................................. 249
Standard 3-5.3 Selection of Jurors ....................................................................................... 251
Excerpt from Commentary to ABA Standard ...................................................................................... 251
Const. art. 1, § 11 — Religious Freedom ............................................................................................ 251
Case Law — Purpose of Voir Dire ...................................................................................................... 251
Case Law — Actual Bias..................................................................................................................... 252
Case Law — Closure of Courtroom During Voir Dire ........................................................................ 253
Case Law — English Speaking Requirement ...................................................................................... 256
Case Law — Improper Questioning .................................................................................................... 256
Case Law — Penalty Discussion in Non-Capital Case Prohibited ...................................................... 256
Case Law — Polling Jury .................................................................................................................... 257
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CONTENTS
Case Law — Peremptory Challenges After Presentation of Evidence ................................................ 257
Case Law — Peremptory Challenges Based on Race ......................................................................... 257
Case Law — Peremptory Challenges Based on Gender ...................................................................... 261
Case Law — Peremptory Challenges Based on Religious Beliefs ...................................................... 262
Case Law — Peremptory Challenges Based on Sexual Orientation ................................................... 264
Case Law — Juror Misconduct During Deliberations ......................................................................... 264
Standard 3-5.4 Relations With Jury..................................................................................... 265
Excerpt from Commentary to ABA Standard ...................................................................................... 265
Communication with Jury ................................................................................................................... 265
Post–Verdict Statement About Juror ................................................................................................... 266
Protective Orders for Jurors ................................................................................................................. 266
Standard 3-5.5 Opening Statement ...................................................................................... 267
Excerpt from Commentary to ABA Standard ...................................................................................... 267
Case Law — Purpose of Opening Statement....................................................................................... 267
Case Law — Dismissal After Opening Statement Upon Failure to Include Facts Essential to
Conviction or Inclusion of Facts Constituting a Complete Defense ............................................. 267
Standard 3-5.6 Presentation of Evidence ............................................................................. 269
Excerpt from Commentary to ABA Standard ...................................................................................... 269
RPC 3.4 — Fairness to Opposing Party and Counsel .......................................................................... 269
Case Law — Reopening Prosecution’s Case — After Defense Rests ................................................. 270
Case Law — Reopening Prosecution’s Case — Jury Question........................................................... 271
Case Law — Suppressed Evidence — Defense Opening Door by Asserting Missing Evidence ....... 272
Standard 3-5.7 Examination of Witnesses ........................................................................... 273
Excerpt from Commentary to ABA Standard ...................................................................................... 273
Case Law — Miranda Warnings and Defendant’s Silence and/or Request for Counsel.................... 273
Case Law — Defendant’s In Custody Status ....................................................................................... 275
Case Law — Direct Examination — Awards or Commendations Received by Witness .................... 276
Case Law — Direct Examination — “Bolstering” or Vouching For a Witness’s Credibility ............. 277
Case Law — Direct Examination — Defendant’s Demeanor on Arrest ............................................. 278
Case Law — Direct Examination — Defendant’s Pre-Arrest Silence ................................................ 278
Case Law — Direct Examination — Defendant’s Post-Arrest Silence ............................................... 279
Case Law — Direct Examination — Defendant’s Reputation for Sobriety ........................................ 282
Case Law — Direct Examination — “Fact of the Complaint” Hearsay Exception ............................. 282
Case Law — Direct Examination — Fear of Defendant ..................................................................... 282
Case Law — Direct Examination — Leading Questions .................................................................... 283
Case Law — Direct Examination — Opinion on Defendant’s Credibility or Guilt ............................ 283
Case Law — Direct Examination — Opinion on Another Witness’ Credibility or Guilt aka
“Witness Vouching” ...................................................................................................................... 287
Case Law — Direct Examination — Privilege — Knowing Privilege Will Be Invoked .................... 287
Case Law — Direct Examination — Repeated Improper Questioning ............................................... 287
Case Law — Direct Examination — Shielding Witness from Difficult Questions ............................. 288
Case Law — Direct Examination — Statistics .................................................................................... 288
Case Law — Direct Examination — Subterfuge to Elicit Inadmissible Testimony — The
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CONTENTS
Primary Purpose Rule ................................................................................................................... 288
Case Law — Direct Examination — Violation of Pretrial Ruling ...................................................... 289
Case Law — Cross Examination — Alcohol or Drug Usage .............................................................. 289
Case Law — Cross Examination — Bias ............................................................................................ 291
Case Law — Cross Examination — Defendant — Criminal History Raised by Defense ................... 291
Case Law — Cross Examination — Defendant — Limitation by Court — Right to Confront .......... 292
Case Law — Cross Examination — Defendant — Remarks by Defense Counsel ............................. 293
Case Law — Cross Examination — “Impeachment by Contradiction” .............................................. 294
Case Law — Cross Examination — Impeachment — Failure to Present Impeachment Evidence ..... 294
Case Law — Cross Examination — Impeachment — “I Don’t Remember” ...................................... 295
Case Law — Cross Examination — Impeachment — Limitation on Defense .................................... 297
Case Law — Cross Examination — “Liar” Questions — Comment on Veracity of Another ............ 297
Case Law — Cross Examination — Prior Conviction — ER 404(a) .................................................. 299
Case Law — Cross Examination — Prior Conviction — ER 609(a)(1) ............................................. 300
Case Law — Cross Examination — Prior Conviction — ER 609(a)(2) ............................................. 301
Case Law — Cross Examination — Prior Conviction — ER 609(b) — Tolled if Fugitive ................ 302
Case Law — Cross Examination — Self Incrimination Assertion ...................................................... 302
Case Law — Cross Examination — Self Incrimination Assertion — Pending Civil and
Criminal Proceedings .................................................................................................................... 303
Case Law — Cross Examination — Tailoring Testimony to Evidence .............................................. 303
Case Law — Cross Examination — Use of Court Pleadings .............................................................. 304
Case Law — Failure to Call Subpoenaed Witness — Duty to Advise of Witness’s Whereabouts ..... 304
Case Law — Sanctions for Prosecutorial Misconduct/Mismanagement ............................................. 305
Standard 3-5.8 Argument to the Jury .................................................................................. 307
Excerpt from Commentary to ABA Standard ...................................................................................... 307
Case Law — Defendant’s Right to Present Closing Argument ........................................................... 307
The Supreme Court Warning to Prosecutors! ! ! ................................................................................. 308
Case Law — Acquit Rather Than Convict on Lesser Arguments Permitted ....................................... 309
Case Law — Appeals to Sympathy, Emotion or Passion Arguments Prohibited ................................ 309
Case Law — Arguing Inconsistent Theories In Separate Trials of Co-Defendants ............................ 313
Case Law — Arousing Natural Indignation Arguments Permitted ..................................................... 315
Case Law — Association with Others ................................................................................................. 316
Case Law — “Conscience of the Community” Permitted Unless to Inflame ...................................... 317
Case Law — Consciousness of Guilt .................................................................................................. 318
Case Law — Constitutional Right Impingement Arguments .............................................................. 319
— Right to Remain Silent [Failure to Testify] .................................................................................... 319
— Right to Be Present in Court ........................................................................................................... 319
— Burden of Proof .............................................................................................................................. 319
— “Undisputed” Evidence Argument Permitted ................................................................................. 319
— “Missing Witness” Doctrine ........................................................................................................... 322
— Defendant’s Failure to Call Witness Permitted .............................................................................. 322
Case Law — Defendant’s Actions Before and After Incident Permitted ............................................ 325
Case Law — Defendant’s Non-Testimonial Trial Demeanor Arguments Prohibited ......................... 325
Case Law — Defendant’s Post-Arrest Silence Arguments Prohibited ................................................ 325
Case Law — Defendant’s Pre-Arrest Silence ...................................................................................... 329
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CONTENTS
Case Law — Defendant’s Testimony — Partial Silence Arguments Permitted .................................. 330
Case Law — Defendant’s Testimony — Silence On One Count in Multi-Count Prosecution
Prohibited ...................................................................................................................................... 330
Case Law — Defendant’s Testimony — Tailor Testimony Due to Defendant’s Presence in
Court Argument Permitted ............................................................................................................ 331
Case Law ............................................................................................................................................. 332
— Defense Argument Responses Permitted ........................................................................................ 332
— “Invited Error” Rule ....................................................................................................................... 332
Case Law — Defense Counsel — Disparaging Arguments Prohibited ............................................... 335
Case Law — Defense Counsel — Disparaging Arguments Prohibited — Counsel a “Magician”
Disfavored ..................................................................................................................................... 336
Case Law — Defense Theory — Lack of Evidence Argument Based Upon Prosecutor’s Failure
to Call Unimportant, Cumulative, or Witness Equally Available to Both Parties ......................... 337
Case Law — Defense Theory — Not Supported by Evidence Argument Permitted .......................... 337
Case Law — Defense Theory — Oath Violated if Defense Accepted Argument Prohibited ............. 338
Case Law — Experiments — Inviting Jury to Conduct ...................................................................... 338
Case Law — Inferences from Evidence Arguments Permitted ........................................................... 338
Case Law — Inferences from Evidence — “Liar” Arguments Permitted if Based Upon
Evidence and Not Personal Opinion; Otherwise “Flagrantly” Improper ...................................... 339
— But, “Not Guilty Verdict Means Witnesses Lied or Mistaken” Arguments Prohibited.................. 340
Case Law — Law Not Given to Jury Arguments Prohibited .............................................................. 342
Case Law — Literary Allusions Arguments Permitted ....................................................................... 342
Case Law — Marital Privilege Arguments Prohibited ........................................................................ 344
Case Law — Matters Outside Record Arguments Prohibited ............................................................. 344
Case Law — Minimizing Jury Responsibility Arguments Prohibited ................................................ 345
Case Law — Name-calling Arguments Prohibited ............................................................................. 345
Case Law — “Officers of the Court” Arguments Permitted ............................................................... 345
Case Law — Personal Beliefs Arguments Prohibited ......................................................................... 346
Case Law — Personal Beliefs Arguments Prohibited — But “Evidence Overwhelming” OK........... 346
Case Law — Provoking Mistrial Prohibited........................................................................................ 347
Case Law — Race References Strictly Prohibited .............................................................................. 348
Case Law — Results in Other Cases Arguments Prohibited ............................................................... 348
Case Law — “Send a Message” Arguments Prohibited ...................................................................... 349
Case Law — Standard of Review........................................................................................................ 349
Case Law — Standard of Review — Failure of Defense to Object .................................................... 350
Case Law — Statistics to Prove Guilt Arguments Prohibited ............................................................. 350
Case Law — Vouching for Credibility of Witness Arguments Prohibited ......................................... 350
Standard 3-5.9 Facts Outside the Record ............................................................................ 353
Excerpt from Commentary to ABA Standard ...................................................................................... 353
Case Law — Jury Questions During Deliberation — Defendant’s Right to be Present and
Comment on the Evidence ............................................................................................................ 353
Case Law — Jury Receipt of Documents Not Admitted Into Evidence aka Extrinsic Evidence ........ 354
Standard 3-5.10 Comments by Prosecutor After Verdict .................................................. 355
Excerpt from Commentary to ABA Standard...................................................................................... 355
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Part VI. Sentencing ....................................................................................................... 356
Standard 3-6.1 Role in Sentencing ....................................................................................... 356
Excerpt from Commentary to ABA Standard ...................................................................................... 356
Case Law — District/Municipal Court’s Power to Order Consecutive Sentences More Than
One Year ....................................................................................................................................... 356
Standard 3-6.2 Information Relevant to Sentencing .......................................................... 357
Excerpt from Commentary to ABA Standard ...................................................................................... 357
SRA Charging and Plea Disposition Standards ................................................................................... 357
RCW 9.94A.460 — Sentence Recommendations ............................................................................... 357
Case Law — Allocution ...................................................................................................................... 357
Case Law — Appearance of Fairness .................................................................................................. 358
Case Law — Co-Defendants — Disparate Sentences ......................................................................... 359
Case Law — Criminal History — Validity — Constitutional on Their Face ...................................... 359
Case Law — Judicial Vindictiveness Post-Trial ................................................................................. 360
Case Law — Rules of Evidence do not Apply at a Sentencing Hearing ............................................. 361
Case Law — Self Incrimination .......................................................................................................... 361
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INTRODUCTION
“What Should I Do?”
We have studied ethics in law school, and gone to seminars on the topic. Yet, the study of ethics and
the Rules of Professional Conduct focuses almost exclusively on the minimum standards below which no
lawyer may ethically fall. While concentrating on what an attorney can do is certainly an appropriate
starting point in learning the basic rules, the far more difficult task is to teach, and learn, professionalism,
or what a lawyer should do.
For prosecutors, the task is perhaps even more difficult since we represent the public, who
appropriately demand the highest standard of professionalism of their servants.
The Preamble to the Rules of Professional Conduct discusses the concept that lawyers are the
“guardians of the law” playing a vital role in the preservation of society. Such a noble cause, and
responsibility, cannot be taken lightly.
The Preamble continues: “Each lawyer must find within his or her own conscience the touchstone
against which to test the extent to which his or her actions should rise above minimum standards.”
How should one examine his or her conscience, and act accordingly? We have many, many court rules
and cases describing a myriad of procedural matters (the number of days notice required, discovery
requirements, etc.). A prosecutor could ethically follow these rules exactly, and likely decrease the respect
for law among the criminal justice system participants and the public.
We are the “guardians of the law,” and must begin discussing our professional responsibility by asking
“What should I do?”
Why Study Ethics and Professionalism?
Before Watergate, little if anything was discussed about an attorney’s ethical and professional
responsibility. Then, many lawyers in President Nixon’s administration were convicted and imprisoned.
The President, himself an attorney, was impeached. Spiro Agnew, the Vice President, pleaded nolo
contendere and was convicted of income tax evasion.
The bar soon recognized the public’s outrage at attorneys and the need to deal with ethics. So law
school courses were developed and an ethics component was added to the bar examination.
Eventually, ethics was added as a mandatory continuing legal education requirement.
Law school and CLE courses now teach the black letter law on ethics. Do not do this, or this, or this.
Professionalism, though, is often ignored by these courses because the topic is much more difficult to teach
since deciding how one should act will ultimately rest on one’s own values.
Despite the efforts of many, it is certainly safe to say that the public’s respect for lawyers has not
increased since Watergate days. I submit that without serious discussion and development of a moral code
concerning whether an attorney “should” take a particular action, the public’s confidence in lawyers will
continue to erode. As “guardians of the law,” we all share the blame.
1-
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INTRODUCTION
Why Did You Become A Lawyer?
I believe that most people who go to law school do so with an aspiration towards making a difference
by helping people seek justice. Yet law school focuses on teaching the rules, the black letter law. This
methodical training of the rules can have the result of teaching adherence to the rules at all costs. After all,
we are taught by experiencing the cross-examination technique of the Socratic Method to learn the rules.
And if this cross-examination technique is a bit uncomfortable for the law student, well, too bad.
So when lawyers deal with each other “in the heat of battle,” it is almost instinctual to treat each other
and the opposing party as we were taught. Effective cross-examination, after all, is supposed to be the best
method of seeking truth from a witness. And if the witness and opposing counsel need to be crossexamined ala Socrates to get to the truth and justice, so be it.
Yet use of this “heat of the battle” means to achieve the end of truth and justice is fraught with abuse,
righteous indignation, and insolence by attorneys. I submit that our role as “guardians of the law” cannot
allow us to achieve justice at the expense of personal attack and indignity along the way. The quest for
justice, or the means, must be as righteous as the goal itself. Anything less demeans the law and our
profession.
What Is Your View On Being An Attorney?
How do you describe your view of being a lawyer? Is your job an occupation? A profession? A
vocation?
oc-cu-pa-tion. 1. an activity in which one engages
pro-fes-sion. 4. a: a calling, requiring specialized knowledge and often long and intensive academic preparation
b: a principal calling, vocation, or employment
vo-ca-tion. 1. a summons or strong inclination to a particular state or course of action
WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1991), at 817, 939, 1320
Do you simply occupy your time as a prosecutor, for a paycheck? Or is being a prosecutor a calling; a
state of mind singularly focused on a passion for justice?
You probably know attorneys and prosecutors in each category. Which definition best describes you?
Why Don’t People Like Lawyers? Our Moral Ambiguity.
Most attorneys have a set of values and beliefs that are followed at home and in their personal lives.
Yet, often these values are ignored when dealing with opposing counsel and parties. Do you perceive a
tension between your own values and how you act in court?
The public pays a significant amount of taxes to support the criminal justice system. It expects its
public servants to act morally, ethically, and based on reason, not emotion.
One of the main reasons the public dislikes and distrusts attorneys is our moral ambiguity. We have
been trained to zealously represent clients within ethical rules. Yet these “what can I do” rules (or from the
public perspective “what can I get away with” rules) fail to in any way take into account one’s own values
and belief system. We applaud ourselves for meeting the minimum standards of our ethical rules. Yet this
thoughtless allegiance to the minimum standards hardly increases the public’s faith in our profession’s
alleged claim to maintain the “highest standards of ethical conduct” proclaimed by the Preamble of the
Rules of Professional Conduct.
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INTRODUCTION
It is this moral ambiguity that the public notes when we tout our self-regulation. The public snickers
because the public does not respect morally ambiguous positions. Children are taught right from wrong
and to follow the Golden Rule when dealing with others. Yet even these basic concepts of treating others
with respect and dignity appear lost on lawyers and prosecutors in almost any courtroom on any given day.
Our focus on following the “letter of the law” and instinctive adherence to its rules does not translate
into what the public perceives as commonsense and right versus wrong. Yet commonsense and right versus
wrong is precisely what we prosecutors daily rely upon when arguing a case to a jury.
Prosecutors take an oath to support the constitutions and laws of the United States and the State of
Washington, yet case law is filled with examples of prosecutorial error during all phases of a criminal case.
How can such examples exist if we are seeking justice, not merely convictions? Does the desire to convict
the “bad guys” to protect the public justify use of improper tactics? As discussed previously, even given
the legitimate goal of public safety, use of tainted methods does not result in justice.
I think that the embarrassingly high volume of reported cases citing prosecutorial error exist because
the prosecutor failed to ask in good conscience “Should I do this?” A most difficult question a prosecutor
must always remember is —
Can I restrain my justifiable appetite to convict “bad guys” by using only
proper ethical and professional means to do so?
On Being Happy, Healthy, and Ethical in an Unhappy, Unhealthy and
Unethical Profession
Notre Dame Associate Profession of Law Patrick J. Schiltz authored an extremely insightful discussion
of our profession in Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy,
Unhealthy, and Unethical Profession, 52 Vand.L.Rev. 871 (May 1999).
The Vanderbilt Law Review article begins —
Dear Law Student:
I have good news and bad news. The bad news is that the profession that you are about to enter is one of the most unhappy
and unhealthy on the face of the earth--and, in the view of many, one of the most unethical. The good news is that you can
join this profession and still be happy, healthy, and ethical. I am writing to tell you how.
Id., at 872.
Schiltz chronicles research studies showing that lawyers are among the most depressed people in
America, with elevated rates of anxiety, hostility, and paranoia. Lawyers appear to be prodigious drinkers,
and the little data available on drug usage is not encouraging. While study after study supports the
proposition that marriage is good for people and divorce bad for many physical and psychological reasons,
lawyers appear to rank high among professional divorce rates. Lawyers reportedly think about committing
suicide and commit suicide more often than do non-lawyers. The limited information available indicates
that the physical health of lawyers may not be much better than their emotional health.
Schiltz posits that people who suffer from depression, anxiety, alcoholism, drug abuse, divorce,
and suicide to this extent are by almost any definition unhappy. The source of this unhappiness seems to
be one thing all have in common—their work as lawyers.
After discussing causes for such unhappiness including the hours, the money and the “game,” Schiltz
next focuses on the impact of ethics.
At this point, I should say a few words about ethics. I hesitate to do so. I know that courses on legal ethics (or
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INTRODUCTION
"professional responsibility") are among the least popular courses in the law school curriculum--even less popular than
courses on taxation. I realize that, by raising the topic of ethics, I risk making your eyes glaze over. At the same time, the
legal profession is widely perceived--even by lawyers--as being unethical. Only one American in five considers lawyers to
be "honest and ethical," and "the more a person knows about the legal profession and the more he or she is in direct
personal contact with lawyers, the lower (his or her) opinion of them." This should concern you.
There are many reasons why ethics courses are so unpopular, but the most important is probably that law
students do not think that they will become unethical lawyers. Students think of unethical lawyers as the sleazeballs
who chase ambulances (think Danny DeVito in The Rainmaker) or run insurance scams (think Bill Murray in Wild Things)
or destroy evidence (think Al Pacino's crew in The Devil's Advocate). Students have a hard time identifying with these
lawyers. When students think of life after graduation, they see themselves sitting on the 27th floor of some skyscraper in a
freshly pressed dark suit (blue, black, or gray) with a starched blouse or shirt (white or light blue) doing sophisticated legal
work for sophisticated clients. Students imagine-- wrongly--that such lawyers do not have to worry much about ethics,
except, perhaps, when the occasional conflict of interest question arises.
Id., at 906-8. (Footnotes omitted.) (Emphasis added.)
Although much of Schiltz’ article discusses life in the big city law firm, the concepts apply equally to
the prosecutor.
Unethical lawyers do not start out being unethical; they start out just like you--as perfectly decent young men or women
who have every intention of practicing law ethically. They do not become unethical overnight; they become unethical
just as you will (if you become unethical)--a little bit at a time. And they do not become unethical by shredding
incriminating documents or bribing jurors; they become unethical just as you are likely to--by cutting a corner here, by
stretching the truth a bit there.
Let me tell you how you will start acting unethically: It will start with your time sheets. One day, not too long after
you start practicing law, you will sit down at the end of a long, tiring day, and you just won't have much to show for your
efforts in terms of billable hours. It will be near the end of the month. You will know that all of the partners will be looking
at your monthly time report in a few days, so what you'll do is pad your time sheet just a bit. Maybe you will bill a client
for ninety minutes for a task that really took you only sixty minutes to perform. However, you will promise yourself that
you will repay the client at the first opportunity by doing thirty minutes of work for the client for "free." In this way, you
will be "borrowing," not "stealing." …
You know what? You will also likely become a liar. A deadline will come up one day, and, for reasons that are
entirely your fault, you will not be able to meet it. So you will call your senior partner or your client and make up a
white lie for why you missed the deadline. And then you will get busy and a partner will ask whether you proofread a
lengthy prospectus and you will say yes, even though you didn't. And then you will be drafting a brief and you will
quote language from a Supreme Court opinion even though you will know that, when read in context, the language
does not remotely suggest what you are implying it suggests. And then, in preparing a client for a deposition, you will
help the client to formulate an answer to a difficult question that will likely be asked--an answer that will be "legally
accurate" but that will mislead your opponent. And then you will be reading through a big box of your client's documents-a box that has not been opened in twenty years--and you will find a document that would hurt your client's case, but
that no one except you knows exists, and you will simply "forget" to produce it in response to your opponent's
discovery requests.
Do you see what will happen? After a couple years of this, you won't even notice that you are lying and cheating
and stealing every day that you practice law. None of these things will seem like a big deal in itself--an extra fifteen
minutes added to a time sheet here, a little white lie to cover a missed deadline there. But, after a while, your entire frame
of reference will change. You will still be making dozens of quick, instinctive decisions every day, but those decisions,
instead of reflecting the notions of right and wrong by which you conduct your personal life, will instead reflect the set of
values by which you will conduct your professional life--a set of values that embodies not what is right or wrong, but what
is profitable, and what you can get away with. The system will have succeeded in replacing your values with the
system's values, and the system will be profiting as a result.
Id., at 915-18. (Footnotes omitted.) (Emphasis added.)
Schiltz argues that one must develop the habit of acting ethically, and continually focus on the ethical
habit.
As I have explained, whether you practice law ethically will depend primarily upon the hundreds of mundane things that
you will do almost unthinkingly every day. To behave ethically, day in and day out, you need to be in the habit of doing so.
Developing the habit of acting ethically is no different from developing the habit of putting on your seatbelt or
cracking your knuckles: You have to do it a lot. If you are going to practice law ethically, you need to decide now, while
you are still in law school, what kind of lawyer you want to be, and then act as that kind of lawyer would act. Always.
Everywhere. In big things and small. Do not take that first step toward being an unethical lawyer. I'm telling you--I'm
promising you--that sometime during your first couple years of practice, you will be sitting at your desk late at night with
your pen poised over your time sheet, and you will be tempted to pad your hours. Padding time sheets is "the perfect
crime"; it is profitable for you and it is profitable for the firm and there is virtually no chance that you will get caught. The
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INTRODUCTION
only thing that will stop you from padding your time sheets is your own integrity.
Do not pad your time sheets--even once. And do not tell lies to partners or clients or opposing counsel. And do not
misrepresent legal authority to judges. And do not break your promises. And do not do anything else that is
contrary to the values you now hold. And finally, when you screw up--as I did, as every lawyer does--pick yourself
up, dust yourself off, and try that much harder to develop the habit of acting ethically.
Id., at 949-50. (Footnotes omitted.) (Emphasis added.)
Schiltz concludes by noting that it is never too late to change. And if you do an unethical act, try that
much harder the next time not to do so. Remember to smile often, and have a nice day.

Prosecutorial Challenges
The public’s perception of prosecutors is our reality. We are the people exercising this incredible
power against the citizenry in the name of public safety. You are the prosecutor’s office when anyone
deals with you. What message do your activities send?
Prosecutors inherently serve two masters — society and justice. Yet, society’s desire for a conviction
in a particular case often directly conflicts with a prosecutor’s duty to seek justice in obtaining a verdict
free of prejudice and passion, and based solely on admissible evidence and reason. GERSHMAN,
PROSECUTORIAL MISCONDUCT, at viii-x (1996).
It is easy to deal professionally with an opponent who treats one with respect and courtesy, and who
does not use the rules as a sword to attack at any cost. Yet it is hardly virtuous to treat another with respect
only when treated similarly.
The challenge to one’s professionalism comes when dealing with the opponent who lacks a moral
compass. It is at this time that a prosecutor’s true moral character is put to the test. Your response will
ultimately determine whether the means you use to obtain a conviction are tainted, or whether justice is
truly realized.
Supervisors also must be mentioned. Do you work for honest people who seek justice by encouraging
professional conduct of subordinates? Or does your supervisor’s desire for “aggressive” prosecutors
translate into obtaining convictions at any cost, even if you have to cheat?
Each prosecuting attorney must recognize that slavish attendance to rules absent a personal ethical sense is almost
worthless. Certain conduct may not violate the letter of any rule but may destroy a reputation. Rules and sanctions can be
enumerated, but absent a sense of fair play and honesty they are minimally helpful. The rest is up to the individual
conscience.
Susan J. Noonan, Senior King County Deputy Prosecuting Attorney, WAPA Presentation on Ethical
Considerations, April 1995, at 5.
The ABA Standards for Criminal Justice (3rd Ed. 1993)
So where does a prosecutor go to seek guidance in what should be done? I submit that any analysis of
a prosecutor’s ethics and professionalism must begin with the nationally recognized ABA STANDARDS FOR
CRIMINAL JUSTICE [hereinafter “ABA Standards”].
Why the ABA Standards? A search of case law using the query “Standards for Criminal Justice”
resulted in 113 United States Supreme Court cases, 1,194 federal cases, 4,200 state cases, and
104 Washington State cases discussing and relying upon the ABA Standards.
Our courts consistently cite the ABA Standards with approval, and will look to them as a reference
guide in determining proper ethical and professional conduct. A prosecutor can be assured that consistent
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INTRODUCTION
adherence to the ABA Standards will result in fulfillment of our duty towards society to attain justice
through proper means.
The ABA Standards are available at <http://www.abanet.org/crimjust/standards/home.html>. The ABA
website provides a complete Table of Contents with links to the “black letter” Standards, which were
approved by the American Bar Association’s House of Delegates in February 1992. The prosecution and
defense Standards are published along with commentary in ABA STANDARDS FOR CRIMINAL JUSTICE:
PROSECUTION FUNCTION AND DEFENSE FUNCTION, 3rd, © 1993 by the American Bar Association. For
purchasing information, please visit the Standards Ordering Information page on the ABA’s website.
ABA Standards exist in the following areas
Appellate Review of Sentences
Legal Status of Prisoners
Collateral Sanctions and Discretionary
Disqualification of Convicted Persons
Mental Health
Criminal Appeals
Defense Function
Discovery
Electronic Surveillance:
Technologically-Assisted Physical Surveillance
Private Communications
Fair Trial & Free Press
Guilty Pleas
Joinder & Severance
Post-Conviction Remedies
Pretrial Release
Special Functions of the Trial Judge
Prosecution Function
Providing Defense Services
Sentencing
Speedy Trial
Trial by Jury
Juvenile Justice Standards
These materials are organized using CHAPTER 3 — THE PROSECUTION FUNCTION of the ABA
Standards as the model for appropriate conduct to be followed by prosecutors. A brief synopsis of each
standard is provided, followed by selected quotes from the Commentary to the ABA Standard. Relevant
case law and/or additional information is thereafter provided for each topic.
Justice; Not Merely Convictions
As the first substantive ABA Standard carefully points out, a prosecutor’s duty is to seek justice and
not merely convictions. The Commentary to the ABA Standard 3-1.2 says —
...it is fundamental that the prosecutor’s obligation is to protect the innocent as well as to convict the guilty, to guard the
rights of the accused as well as to enforce the rights of the public...
Prosecutors in Washington have been delegated tremendous power by the citizenry. Washington is not
a grand jury state, and a prosecutor can subject anyone to criminal charges and possible arrest and jail
based solely on his or her signature. This awesome power must be wielded impartially, and success cannot
be measured by one’s conviction ratio.
While it has been difficult for me to appreciate after a hard fought trial, a jury’s decision to acquit is no
less of a just result than had it voted to convict. Under our system of justice, to assert otherwise demeans
the incredible role the citizenry plays when acting as jurors standing between the power of the government
and the presumption of innocence of the individual.
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
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INTRODUCTION
Prosecutorial Error vs. Misconduct
The phrase “prosecutorial misconduct” with its implication of an intentional/evil mens rea act by the
prosecutor is frequently utilized by the defense bar, courts and the media to describe what is in actuality
prosecutorial error. Although the word “misconduct” may be impossible to remove from our lexicon in
prosecutorial mistake-only situations, prosecutors should urge courts to do so when there is no evidence of
an intentional effort to subvert justice by the prosecutor in question. As is noted in the following quote, the
defense bar, courts and the media do not refer to trial or appellate court judicial error as “misconduct.” And
when a defense attorney makes a mistake we call it ineffective assistance of counsel. Why continue misuse
of the word “misconduct” for only prosecutors?
At a time when their motives appear to be under increasing attack, prosecutors should ensure that established ethical
codes of conduct are the cornerstone of each professional decision they are called upon to make. Many prosecutors believe
that they are increasingly being accused of alleged prosecutorial misconduct in what may be fast becoming a standard trial
tactic for some defense attorneys. Perhaps the situation sould be referred to as “prosecutorial error.” Perhaps prosecutors
should recognize the term “prosecutorial misconduct” for what it really is–incorrect, misleading and unnecessarily
perjorative. (After all, we do not refer to an incorrect ruling by a trial judge as judicial misconduct.)
Usually this charge comes in the form of allegations before the court at the trial level and on appeal. Occasionally, in a
noteworthy case, it occurs in the news media. It is of concern that the increasing barrage of misconduct allegations will
harm the reputation of prosecutors and eventually negatively affect juries and the courts. A single, widely publicized case
of actual misconduct can undo the goodwill and reputation built upon thousands of appropriately handled cases. Once a
prosecutor’s reputation has been tarnished it can be difficult, if not impossible, to rebuild.
Douglas R. Roth, High Ethical Standards: The Foundation for Every Prosecutor in AMERICAN
PROSECUTORS RESEARCH INSTITUTE’S THE PROSECUTORS DESKBOOK: ETHICAL ISSUES AND EMERGING
ROLES FOR 21ST CENTURY PROSECUTORS, at 26 (3rd ed. 2001).
New Prosecutors Must Be Careful
In preparing these materials and researching prosecutorial error, I am struck by the volume of case law
on the topic and the number of convictions reversed as a result of a prosecutor’s improper conduct. Since a
criminal defendant may appeal as a matter of right, appellate courts are constantly being asked to review
the acts and omissions of prosecutors to determine whether the defendant received the constitutional due
process right to a fair trial. Recent prosecutorial error cases are beginning to evidence a trend against
finding harmless error, especially for error during closing argument.
The remedies for prosecutorial error range from imposition of terms to declaration of a mistrial; from
reversal of a conviction on appeal to possible disbarment. The stakes are high for the prosecutor, as they
should be since prosecutors have the power to make decisions that can result in destruction of a person’s
life, career, reputation, and family.
These materials are not exhaustive. Each prosecutor must develop a framework for the resolution of
ethical issues. Often, though, prosecutorial error is inadvertent, especially for the newer prosecutor.
These materials quote extensively from case law to assist the newer prosecutor in understanding the
judicial branch’s perspective on the executive branch’s duty to seek justice, not merely convictions.
Hopefully, knowledge of this historical perspective will help avoid traps for the unwary when responding
to new situations.
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
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INTRODUCTION
Beware of Bar Discipline!
At the June 1998 annual summer WAPA conference in Chelan, the ethics speaker discussed the Bar
Association’s increased awareness of prosecutorial error. The Bar has hired additional counsel to review
advance sheets, published and unpublished, looking for instances of error by both prosecutors and defense
counsel. While the conviction may be affirmed, the Bar may well institute its own investigation into your
conduct in obtaining the conviction!
Case Study 1 — Failure to Disclose Potentially Exculpatory Evidence
On May 5, 2000, effective May 13, 2000, F. McNamara Jardine (WSBA No. 21677), of Tacoma, was
suspended for 90 days based upon her failure to disclose potentially exculpatory evidence to the defense in
a felony vehicular homicide prosecution in 1996. By failing to disclose potentially exculpatory evidence to
the defense in a felony prosecution, Ms. Jardine’s conduct violated RPCs 3.4(a) (unlawfully obstruct
another party’s access to evidence) and RPC 3.8(d) (fail to make timely disclosure of evidence to defense
in criminal case that tends to negate the guilt of the accused or mitigates the offense). See Washington State
Bar News, March 2001 at 49.
Defendant was charged with vehicular homicide after hitting and killing the victim as she walked
across the street. Both the defense and prosecution had been told that the victim had a briefcase, but the
police did not recover it at the scene. One defense theory was that the victim wore a dark jacket and carried
a dark briefcase, obscuring her brightly colored dress from defendant’s view.
Defense specifically requested production and identification of the briefcase. The prosecutor’s office
eventually located the person who removed the briefcase from the scene. This person met with Ms. Jardine,
and brought the briefcase with him. The person was told that he would not be needed as a witness, and left
with the briefcase. Ms. Jardine did not mention the briefcase to the defense, but discussed it with her
supervisor. The supervisor instructed Ms. Jardine to disclose the briefcase information to the defense, but
she did not do so.
During trial, Ms. Jardine objected to admission of defense reconstruction photographs stating that the
briefcase was not accurately portrayed and the depiction was not supported by the evidence. During
closing, Ms. Jardine told the jury “we don’t even have the briefcase to determine its color.” Defendant was
acquitted. A week after the trial, defense counsel learned that Ms. Jardine had the briefcase during trial.
Case Study 2 — Discriminatory Argument
On June 9, 2000, Daniel P. Kinnicutt (WSBA 24217), of Del Rio, Texas, was admonished based upon
his making a discriminatory argument in court. Mr. Kinnicutt’s conduct violated RPC 8.4(d) (prohibiting
conduct prejudicial to the administration of justice) and RPC 8.4(g) (prohibiting committing a
discriminatory act). See Washington State Bar News, April 2001 at 53.
In April 1998, Mr. Kinnicutt was a Pierce County deputy prosecuting attorney handling a criminal case
involving charges of unlawful possession of controlled substance, failure to remain at the scene of an injury
accident, and taking a motor vehicle without owner’s permission. Defendant was convicted of the drug
charge and acquitted of the other two charges.
At trial, the State attempted to prove the following crimes. Booth visited his girlfriend, Tiffany Lucich, at her place of
employment and coerced her with threats and abuse to give him the keys to the car owned by her mother for Lucich’s use.
Booth was later involved in an injury accident with the vehicle and fled the scene. During his arrest and booking for these
offenses, a packet of cocaine fell from his person.
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
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INTRODUCTION
Because Lucich gave the keys to Booth, the State argued her action was not voluntary, but coerced. The State based its
argument upon the ages and social status of the accused and the victim. While attempting to further this argument in his
rebuttal closing, the prosecutor stated:
You know, in the world’s eyes she is not the most attractive lady. She is heavy set. In terms of the way she
styles herself, you probably walk by her in public and look and probably not turn around, and maybe make a
snide remark simply because of her status in society. And maybe even because she is dating an individual of an
opposite race in color—
An objection cut short transcription of the last sentence. Defense counsel reserved a motion for a mistrial until after the
verdict. The jury returned a verdict of guilty on one of the three counts, that of unlawful possession of a controlled
substance, whereupon Booth renewed his motion. The trial court denied the motion for a new trial.
The prosecutor’s argument constituted egregious misconduct. “It is well- established that appeals to nationality or other
prejudices are highly improper in a court of justice[.]” State v. Avendano-Lopez, 79 Wash.App. 706, 718, 904 P.2d 324,
review denied, 129 Wash.2d 1007, 917 P.2d 129 (1996). In a most favorable light, the remarks here might be construed to
mean: “I don’t personally have a problem with mixed race relationships, but if you do, then maybe you’ll find this
argument persuasive.” This is certainly an appeal to prejudice.
Nevertheless, there is no substantial likelihood that the misconduct affected the verdict. As the trial court noted, Booth
was found not guilty of taking a motor vehicle without permission the charge to which the prosecutor’s remarks were
directed. Booth’s unlawful possession conviction had no connection to his relationship with Lucich. Therefore, the trial
court did not abuse its discretion in denying Booth’s motion for a mistrial based on prosecutorial misconduct.
State v. Marvin L. Booth, 97 Wn.App. 1057, 1999 WL 824515 (Div. 2 1999) [UNPUBLISHED OPINION]
The Court of Appeals found that this argument constituted an appeal to prejudice and was egregious
misconduct. Mr. Kinnicut believed that his statements were relevant to point out that the defendant could
have unduly influenced the victim based on her vulnerability.
Case Study 3 — Asserting Defense Counsel Paid Expert to Fabricate
Mental Diagnosis
On July 1, 2004, an Arizona prosecutor was suspended for six months and one day due to unsupported
argument made during closing that defense counsel paid an expert in a murder case to fabricate a mental
diagnosis to fit the defense theory and argument that invoked personal fear in the jury should it acquit the
defendant. In re Zawada, 208 Ariz. 232, 92 P.3d 862 (2004).
Zawada knew there was no evidentiary basis for the accusation, nor did he offer one. He continued the attack in closing
argument, suggesting, still without evidence, that defense counsel paid money to the mental health expert to fabricate a
diagnosis of insanity for the defendant. This was not a case of negligence; rather, it was an intentional, knowing attack by
Zawada on defense counsel, on the experts, and on the mental health profession. Zawada's actions unquestionably indicate
he knew his conduct constituted outright disobedience in violation of ER 3.4(c). …
The more serious the injury, the more severe should be the sanction. See, e.g., In re Cardenas, 164 Ariz. 149, 152, 791 P.2d
1032, 1035 (1990) (noting that the difference between ABA Standards 4.41(b) (calling for disbarment) and 4.42(a) (calling
for suspension) is the seriousness of the injury). Serious injury was caused by Zawada's misconduct. The criminal justice
system suffered, as did society as a whole. When serious crime goes unpunished everyone suffers, not because the suspect
was unidentifiable, but because a prosecutor's misconduct bars retrial as a matter of double jeopardy. Disciplinary
Commissioner Cahill spoke accurately in his dissent from the Commission's recommendation: "Simply put, [Zawada's]
knowing, deliberate and intentional misconduct either caused a murderer to walk free, or it helped convict an innocent man
of first-degree murder. Either way, no harm could be more serious." …
Together, these cases demonstrated repeated instances of misconduct in cases that involved serious consequences. We
agree with that finding. In addition, we agree, pursuant to ABA Standard 9.22(i), that Zawada's substantial experience in
the practice of law should be treated as an aggravating factor. The finding of substantial experience is justified by the fact
Zawada has practiced law in Arizona since 1979.
No less important is that much of his experience as an attorney has come through many years working as a prosecutor.
Because prosecutors' ethical duties exceed those of lawyers generally, substantial experience as a prosecutor may become a
further aggravating circumstance, particularly in cases, as here, where the prosecutor should have learned much earlier to
conform his conduct to the rules, but has not done so. …
In contrast, Zawada has remained hostile, utterly refusing to cooperate in the disciplinary proceedings. His unwillingness to
acknowledge gross misconduct suggests at least some risk that Zawada, given the opportunity, would treat expert witnesses
in another case with a serious mental health component in the same manner in which he treated the expert witnesses in
Hughes. That risk, without appropriate discipline at this point, is unacceptable.
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
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INTRODUCTION
Prosecutors Quest for Justice vs. Defense Lawyers Quest for Justice
Being a prosecutor should be difficult on the conscience since one chooses the job knowing that
“justice” inherently involves often difficult moral decision-making. A prosecutor’s sole focus must be on
justice “within the rules.” Defense counsel, on the other hand, satisfies his or her duty through zealous
representation of a client by ensuring the prosecutor meets the burden of proof beyond a reasonable doubt
through admissible evidence. Criminal defense counsel, unlike other attorneys, may even ethically raise
non-meritorious claims and contentions in the representation of a criminal defendant. RPC 3.1.
It can be a most difficult task to uphold the law without losing sight of our oath to protect individual
rights of defendants who we believe committed the charged crimes. Added to this task are federal and state
constitutions that were deliberately designed to limit government’s (i.e. your) exercise of power against the
individual.
Sometimes prosecutors are pressured by victims and law enforcement who may be focused on
obtaining a conviction at all cost since the suspect “did it.” It is often, when all is said and done, a
prosecutor’s job to say “no” to prosecution due to lack of admissible evidence and proof beyond a
reasonable doubt even when the prosecutor “believes” the crime occurred and was committed by the
suspect. Justice under our system of laws demands that we say “no” to prosecution in such situations. For
if we do not, who will?
Anger and Emotion—Heed the Warning Before the Misconduct Occurs
One should not overlook the impact of emotion, especially anger, on one’s ethics and professionalism.
Excessive prosecution caseloads, constant deadlines, and the severity and brutality of certain crimes create
pressure and stress that will inevitably lead to mistakes, both by prosecutors and staff. This pressure,
coupled with a less-than-professional opponent who may as a tactic be trying to get the prosecutor angry so
mistakes will be made, may result in prosecutor “heat of the moment” retaliation against defense counsel
by filing additional charges against a defendant and/or increasing sentence recommendations and/or
arguing a plethora of motions and objections which may technically be permitted by case law and court
rules but hardly serve the interests of justice.
If you have had a bad experience with defense counsel, you must avoid trying to get even by retaliating
against a defendant. You know that such actions are wrong even if technically permitted by the rules.
Perhaps you should try to see your actions through the eyes of defense counsel, the defendant, and the
judge. It never ceases to amaze me how similar both lawyers truly are to each other when battling every
minutiae at all costs. If the roles were reversed, each lawyer would probably treat the other just as
contemptuously. Are you often in tit-for-tat battles with counsel? Do you “get along” with any defense
counsel? Why not? Is your moral compass such that you would likely treat prosecutors with similar
contempt if you were a member of the defense bar?
Another emotion I have seen is supreme arrogance solely because one is a prosecutor. This type of
prosecutor does a great disservice to the public since every action taken is put in terms of good (me) versus
the enemy (anyone interfering with conviction of an “obviously” guilty person). Such a prosecutor
frequently becomes upset when things do not proceed favorably, and often grumbles and complains about
the “outrageousness” of the perceived improper action to anyone who will listen. Do you ever get angry at
defense counsel’s actions or a judge’s rulings? Are you just as contemptuous of defense counsel as they
are of you? What is justice and humility for you?
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
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INTRODUCTION
Is There Room for Civil Discourse in a Criminal Court?
Barrie Althoff, WSBA Chief Disciplinary Counsel, presented an article entitled “The Ethics of
Incivility” in the July 1999 Washington State Bar News, at pp. 50-53. The following selected portions of
the article provide ample opportunity for reflection.
“Few lawyers and judges have never uttered in the heat of argument words which, on reflection, they
regretted as intemperate. While lawyers and judges can disagree without being disagreeable, some lawyers
and judges are more than just occasionally disagreeable. Some are consistently and almost universally
disagreeable, uncivil, impolite, discourteous, acerbic, acrimonious, obstreperous, ill-mannered,
antagonistic, surly, ungracious, insolent, rude, boorish, uncouth, insulting, disparaging, malevolent,
spiteful, demeaning, vitriolic and rancorous—and sometimes all of these in one short deposition or
hearing. They manifest such behavior to other lawyers, judges, witnesses, clients and the public generally.
These lawyers might do well to study the 16-year-old George Washington’s school transcription exercise,
Rules of Civility and Decent Behavior In Company and Conversation, and particularly the very first of the
110 rules: ‘Every action done in company ought to be with some sign of respect to those that are present.’
The conduct of these lawyers suggests little or no respect for the innate dignity and worth of other persons,
although it may be highly attractive to some clients who prize pugnacity over decorum. … “ [Emphasis
added.]
“The Rules of Professional Conduct neither explicitly prohibit incivility nor require lawyers to be civil,
let alone be witty, urbane, polished and magnanimous of heart. …”
“Concern over declining civility and professionalism is not just a nostalgic yearning for a passing of
bygone social graces or outmoded conventions. Rather, civility and professionalism relate to the basic level of
trust and respect accorded by one person to another, of the level of confidence a lawyer or a judge can have in
the word of another lawyer or a judge. Civility and professionalism form a framework for common
expectations of mutual trust, of being treated with dignity, and ultimately set the stage for justice to be done…”
“The legal profession has always had room and need for both the polished and the scruffy lawyer. It is
a noble profession not because its members are, or may be required to be, polite or civil or politically
correct to one another, but because the profession’s overriding goal is to make the promise of justice a
reality. The preamble to the RPCs reminds us that justice is based on a rule of law grounded in respect of
the individual. If lawyers truly are guardians of law, then they more than others need to embody in
their practices and lives that very same respect for the dignity of the individual. Lawyers need to treat
one another with dignity and respect because the very purpose of the law, and thus the very reason for the
legal profession’s existence, is to attain respect and protection for the dignity of the individual. Modeling
civility and professionalism is an important way for each lawyer and judge to express gratitude to other
legal professionals, to honor the innate dignity of one another, and to celebrate the cacophony of justice that
is attained through the legal process.” (Bold emphasis added.)
What can you do about the conduct of the “disagreeable, uncivil, impolite, discourteous, acerbic,
acrimonious, obstreperous, ill-mannered, antagonistic, surly, ungracious, insolent, rude, boorish, uncouth,
insulting, disparaging, malevolent, spiteful, demeaning, vitriolic and rancorous” attorney or judge? You can
respond in kind, lead a similarly unhappy existence, risk prosecutorial misconduct and bar discipline. Or,
not.
You cannot control another person’s actions, but you can control your response through civility.
Remember to smile often, and have a nice day.

THE QUEST FOR JUSTICE 2005 (2nd Ed.)
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INTRODUCTION
Respect for Individual Dignity vs. Situational Ethics
As noted above by Barrie Althoff, at the core of the Rules of Professional Conduct is the recognition
that justice is based on a rule of law which respects the dignity of the individual. This Golden Rule
philosophy of treating others as you want to be treated cannot be overemphasized, especially for
prosecutors who represent a righteous and just society.
Examples are provided throughout this manual supporting the author’s opinion that justice cannot be
obtained without a clear and on-going focus on the means used to obtain the justice end. A prosecutor’s
respect for the dignity of all individuals—be they colleagues, staff, opposing counsel, judges, victims,
defendants, the public, friends, children, or others—will surely go a long way towards the Quest for Justice.
I propose that prosecutors should not withhold respect towards others until treated “properly.”
Someone has to go first, and there is absolutely no reason why prosecutors cannot take the first step, and all
subsequent steps, in leading the charge of showing respect for the dignity of others.
The tit-for-tat situational ethics and professionalism discussed supra in the Anger and Emotion section
waste everyone’s time and show a complete and utter lack of respect for the dignity of others. While one’s
opponent may never change and will always be all of those things listed above by Barrie Althoff, what
possible “point” is successfully made by responding in kind? One simply ends up demeaning his or her
own reputation, and ultimately oneself, with an Anti-Golden Rule selective dignity philosophy—treat
people I like with respect, and those I do not like with spite and rancor. And why stop with spite and
rancor? Why not respond to those you dislike by being “disagreeable, uncivil, impolite, discourteous,
acerbic, acrimonious, obstreperous, ill-mannered, antagonistic, surly, ungracious, insolent, rude, boorish,
uncouth, insulting, disparaging, malevolent, spiteful, demeaning, vitriolic and rancorous-and sometimes all
of these in one short deposition or hearing?”
Perhaps the greatest challenge in a prosecutor’s Quest for Justice is the daily rejection of a selective
dignity philosophy. What is the harm in treating everyone as a best friend, rather than as a worst enemy? 1
Do You Know Any “Rambo” Lawyers? Are You One?
Rambo lawyer. A lawyer, esp. a litigator, who uses aggressive, unethical, or illegal tactics in representing a client and who
lacks courtesy and professionalism in dealing with other lawyers. — Often shortened to Rambo.
BLACK’S LAW DICTIONARY 1266 (7th Ed. 1999)
One Final Question—Will You Be Convicted?
This is your time to do what is right and seek justice. Change is always a constant. One election result
or new job opportunity in the private sector may end your prosecutorial career. While perhaps just an old
naive law school dream, you can obtain justice through your ethical and professional representation of the
State of Washington.
So long as you recognize that you can only control your response to defense counsel and/or the Court,
and before your response you ask yourself “Can I do this ethically?” and “Should I do this
professionally?”, you will find yourself acting ethically and professionally.
One final question is worth posing —
For an interesting discussion on a lawyer’s role in creating social justice, see Lucia A. Silecchia, Reflections on the Future of Social
Justice, 23 Seattle U. L.Rev. 1121 (Spring 2000).
1
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
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INTRODUCTION
If it was unlawful to exhibit ethics and professionalism,
is there enough evidence of my conduct to support a conviction?
As part of my mea culpa and community service for an easy acquittal, I offer these materials to help
you, and me, in our Quest for Justice.
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
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INTRODUCTION
On Appeals to Passion and Sympathy (1899)
Language which might be permitted to counsel in summing up a civil action cannot with propriety be used by a public
prosecutor, who is a quasi-judicial officer, representing the People of the state, and presumed to act impartially in the
interest only of justice. If he lays aside the impartiality that should characterize his official action to become a heated
partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all hazards, he ceased
to properly represent the public interest, which demands no victim, and asks no conviction through the aid of passion,
sympathy or resentment.
People v. Fielding, 158 N.Y. 542, 547, 53 N.E. 497, 46 L.R.A. 641 (1899) (Emphasis added.), quoted with
approval in State v. Case, 49 Wn.2d 66, 70-71, 298 P.2d 500 (1956) and State v. Reed, 102 Wn.2d 140,
146-47, 684 P.2d 699 (1984) (Case and Reed convictions reversed due to prosecutorial misconduct).
On Prowess of the Savage (1909)
It is not our purpose to condemn the zeal manifested by the prosecuting attorney in this case. We know that such officers
meet with many surprises and disappointments in the discharge of their official duties. They have to deal with all that is
selfish and malicious, knavish and criminal, coarse and brutal in human life. But the safeguards which the wisdom of ages
has thrown around persons accused of crime cannot be disregarded, and such officers are reminded that a fearless, impartial
discharge of public duty, accompanied by a spirit of fairness toward the accused, is the highest commendation they can
hope for. Their devotion to duty is not measured, like the prowess of the savage, by the number of their victims.
State v. Montgomery, 56 Wash. 443, 447-48, 105 P. 1035 (1909) (conviction reversed due to prosecutorial
misconduct).
On the Role of the Prosecutor (1935)
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very
definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may
prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty
to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as
it is to use every legitimate means to bring about a just one.
Berger v. U.S., 295 U.S. 78, 88, 79 L.Ed.2d 1314, 55 S.Ct. 629, 633 (1935) (conviction reversed due to
prosecutorial misconduct).
On Conviction of the Innocent (1976)
A prosecutor must always remember that he or she does not conduct a vendetta when trying any case, but serves as an
officer of the court and of the state with the object in mind that all admissible evidence and all proper argument be made,
but that inadmissible evidence and improper argument be avoided. We recognize that the conduct of a trial is demanding
and that if prosecutors are to perform as trial lawyers, a zeal and enthusiasm for their cause is necessary. However, each
trial must be conducted within the rules and each prosecutor must labor within the restraints of the law to the end that
defendants receive fair trials and justice is done. If prosecutors are permitted to convict guilty defendants by improper,
unfair means then we are but a moment away from the time when prosecutors will convict innocent defendants by unfair
means. Courts must not permit this to happen, for when it does the freedom of each citizen is subject to peril and chance.
State v. Torres, 16 Wn.App. 254, 263, 554 P.2d 1069 (Div. 1 1976) (conviction reversed due to
prosecutorial misconduct).
On Wielding Power (1987)
Between the private life of the citizen and the public glare of criminal accusation stands the prosecutor. That state
official has the power to employ the full machinery of the state in scrutinizing any given individual. Even if a defendant is
ultimately acquitted, forced immersion in the criminal investigation and adjudication is a wrenching disruption of everyday
life. For this reason, we must have assurance that those who would wield this power will be guided solely by their sense of
public responsibility for the attainment of justice.
Young v. U.S. ex rel. Vuitton et Fils S.A, 481 U.S. 787, 95 L.Ed.2d 740, 107 S.Ct. 2124, 2141 (1987)
(contempt finding reversed due to conflict of interest created by court’s appointing opposing counsel to
prosecute contempt).
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
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INTRODUCTION
As I read the quote I was struck by the simplicity and clarity with which it set out our responsibility in the discharge of
our duties as prosecutors. I know each of you are guided by this principle as you make decisions daily that effect people’s
lives; however, it never hurts to reflect on our awesome power and the need to wield that power responsibly.
Jeffrey C. Sullivan, Yakima County Prosecutor, in an October 24, 1992 memorandum to all staff attorneys.
On Use of Illegitimate Means to Convict (1992)
A prosecutor’s use of illegitimate means to obtain a verdict brings his office and our system of justice into disrepute.
Northern Mariana Islands v. Mendiola, 976 F.2d 475, 487 (9th Cir. 1992), overruled on other grounds by
George v. Camacho, 119 F.3d 1393 (9th Cir. 1997) (court’s warning to prosecutor).
On Treatment of the Disadvantaged (1995)
It is well-established that appeals to nationality or other prejudices are highly improper in a court of justice, and evidence
as to the race, color, or nationality of a person whose act is in question is generally irrelevant and inadmissible if
introduced for such a purpose.…
The true test of our criminal justice system lies in how we treat the foreigner, the poor, and the disadvantaged, both in
how we treat those born in this country, the wealthy or the “respectable” established citizenry. The dark shadow of
arrogant chauvinism would eclipse our ideal of justice for all if we allowed juries to infer that immigrants, legal or illegal,
were more likely to have committed crimes.
State v. Avendano-Lopez, 79 Wn.App. 706, 722-23, 904 P.2d 324 (Div. 2 1995), review denied, 129 Wn.2d
1007 (1996) (prosecutorial misconduct found, harmless error).
On the Close Case and Improper Tactics (1996)
We agree with the comment of defendant Lee’s counsel in his brief that “trained and experienced prosecutors
presumably do not risk appellate reversal of a hard-fought conviction by engaging in improper trial tactics unless the
prosecutor feels that those tactics are necessary to sway the jury in a close case.”
State v. Fleming, 83 Wn.App. 209, 215, 921 P.2d 1076 (Div. 1 1996), review denied, 131 Wn.2d 1018
(1997) (conviction reversed due to prosecutorial misconduct).
On Sport Killing in the Courtroom (1996)
Many years later, and after much self-examination and much sport killing in the courtroom, I would come to a simple
realization: killing in the courtroom is like killing in the mountains and, like all killing, carries with it the same ethical
standards I saw my father live by when I was a child. One does not kill in the courtroom for the sheer sport of killing. One
does not kill the opponent simply because one can. Only mad dogs, a few rogue wolves, and trophy hunters with piddling
self-esteem who line their walls with the innocent dead kill for pleasure. The killing, the blood on the hands, the hands
deep into the entrails of the witness on the witness stand—the whole process known as “the trial”—must not be a mere
exercise in killing. Instead, it should be the means by which justice is nourished and by which the rights of ordinary people
are, at last, fed.
The courtroom is a place of death. Men die in the courtroom from words that send them to the executioner’s gurney or to
the gas chamber. They die when their names or their fortunes are taken from them, die as their children are wrenched from
them, die when they walk the long walk, in chains, to dark, dank concrete places where living men cannot abide. When I
walk into a courtroom, I am the hunter. When I step into the arena, I feel as if I step into eons of history, of bloody duels, of
misery and killing. And fear. The king’s champion has always been pitted against the poor, the trial by duel—the adversary
system, we call it. It is a fair fight, is it not? The king has a champion, as does the poor man. Indeed, there could be no duel
in the courtroom, no killing of the poor, unless the poor were defended, so we understand, at last, that providing the poor
man with a champion to fight for him may be more to ensure that the duel can occur in the first place than to provide the
poor a chance at justice. And the judge who enforces the rules of the fight? Is he not always the king’s man? It is, then, in
the courtroom that I hunt and I kill, and for the killing to be right, it must be done cleanly, without unnecessary wounding,
done with respect, done without waste, done without pleasure. And if the killing is done right, and for the right reasons, the
killing, too, is right.
GERRY SPENCE, THE MAKING OF A COUNTRY LAWYER 99 (St Martin’s Press 1996).
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
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INTRODUCTION
On Knowing Violation of Judge’s Direction (1997)
While the Due Process Clause no doubt imposes limits on the authority to issue a summary contempt order, the states
must have latitude in determining what conduct so infects orderly judicial proceedings that contempt is permitted. As we
have noted, we have used various phrases to describe the type of conduct required. We need not explore these limitations
and standards, however, for the conduct of counsel here was well within the range of contumacious conduct disruptive of
judicial proceedings and damaging to the court’s authority. Advocacy that is “fearless, vigorous, and effective,” does not
extend to disruptive conduct in the course of trial and in knowing violation of a clear and specific direction from the trial
judge.
Pounders v. Watson, 521 U.S. 982, 117 S.Ct. 2359, 138 L.Ed.2d 976 (1997) (Defense attorney’s contempt
finding and 2 day jail sanction upheld herein she repeatedly asked witnesses (including defendant) about
the sentence of life without the possibility of parole despite judge’s admonition to not do so).
On Justice Being Done (1999)
These cases, together with earlier cases condemning the knowing use of perjured testimony, illustrate the special role
played by the American prosecutor in the search for truth in criminal trials. Within the federal system, for example, we
have said that the United States Attorney is “the representative not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest,
therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”
Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999) (Brady violation found;
harmless error)
On the Ends Justifying the Means, and Rewarded Co-Defendants Who
May Commit Perjury to Frame Another (2001)
The ends in our system do not justify the means. Our Constitution does not promise every criminal will go to jail, it
promises due process of law. It is regrettable that the final day of judgment for those who killed Laude and kidnapped
Rivera has not yet arrived, but as Justice Oliver Wendell Holmes put it, “It is a less evil that some criminals should escape
than that the government should play an ignoble role.” Id. at 469, 48 S.Ct. 564 (Holmes, J., dissenting). It is for this reason
that the law places the duty to manage this difficult business with the utmost care upon those in the best position and with
the power to ensure that it does not go awry. Although the public has an interest in effective law enforcement, and although
we expect law enforcement officers and prosecutors to be tough on crime and criminals, we do not expect them to be tough
on the Constitution. As Justice Clark remarked in Mapp v. Ohio, 367 U.S. 643, 659, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961),
“Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the
charter of its own existence.”
These duties imposed on police and prosecutors by the requirements of due process are hardly novel or burdensome.
Investigating and verifying the credibility of witnesses and the believability of testimony and evidence is a task which they
undertake every day in the regular discharge of their ordinary responsibilities, and we cannot conceive of any fair-minded
prosecutor chaffing under these mandates. All due process demands here is that a prosecutor guard against the corruption
of the system caused by fraud on the court by taking whatever action is reasonably appropriate given the circumstances of
each case. The Attorney General’s faulty decision and calculated course of non- action in this case deprived Bowie of the
fair process that was his due under our Constitution before he could be deprived of his liberty.
Northern Mariana Islands v. Bowie, 243 F.3d 1109 (9th Cir. 2001) (Defendant convicted of murder and
kidnapping. Five co-defendants total, with four making deals and agreeing to testify. Before trial a letter is
found that could have been written by one of the testifying accomplices or by the remaining untried
defendant. The letter suggested that the co-defendants were framing defendant or at least attempting to shift
primary responsibility for the murder to defendant. Police presented the letter to the prosecution, who told
the police to just file it. The letter was eventually turned over to the defense at some point. Prosecutor’s
failure to investigate letter and possible perjury violated due process. Conviction reversed due to
prosecutorial misconduct.)
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
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INTRODUCTION
On Civility (2001)
Appellant, by contending that his counsel was ineffective because he showed respect for and friendship with opposing
counsel, raises an interesting question: is civility incompatible with advocacy? The main opinion rightly resolves this
enumeration of error by holding that it is professionally reasonable for civility to be a part of a lawyer’s strategic plan in
the trial of a case. Being in total agreement with the main opinion, I write separately to further explain the role of civility.
The practice of law is an honorable profession that requires a high standard of conduct of its members. It is a high calling
where competence, civility, community service, and public service are integral parts of the professional standards. It is not
a profession where disrespectful, discourteous, and impolite conduct should be nurtured and encouraged. Such conduct
should be alien to any honorable profession.
Those who hold themselves out as lawyers should realize that they help shape and mold public opinion as to the role of the
law and their role as lawyers. The law sets standards for society and lawyers serve as problem solvers when conflicts arise.
To fulfil their responsibility as problem-solvers, lawyers must exhibit a high degree of respect for each other, for the court
system, and for the public. By doing so, lawyers help to enhance respect for and trust in our legal system. These notions of
respect and trust are critical to the proper functioning of the legal process.
While serving as advocates for their clients, lawyers are not required to abandon notions of civility. Quite the contrary,
civility, which incorporates respect, courtesy, politeness, graciousness, and basic good manners, is an essential part of
effective advocacy. Professionalism’s main building block is civility and it sets the truly accomplished lawyer apart from
the ordinary lawyer.
Civility is more than good manners. It is an essential ingredient in an effective adversarial legal system such as ours. The
absence of civility would produce a system of justice that would be out of control and impossible to manage: normal
disputes would be unnecessarily laced with anger and discord; citizens would become disrespectful of the rights of others;
corporations would become irresponsible in conducting their business; governments would become unresponsive to the
needs of those they serve; and alternative dispute resolution would be virtually impossible.
To avoid incivility’s evil consequences of discord, disrespect, unresponsiveness, irresponsibility, and blind advocacy, we
must encourage lawyers to embrace civility’s positive aspects. Civility allows us to understand another’s point of view. It
keeps us from giving vent to our emotions. It allows us to understand the consequences of our actions. It permits us to seek
alternatives in the resolution of our problems. All of these positive consequences of civility will help us usher in an era
where problems are solved fairly, inexpensively, swiftly, and harmoniously. The public expects no less and we must rise to
the occasion in meeting those expectations.
Butts v. State, 273 Ga. 760, 546 S.E.2d 472 (Ga. 2001), cert. denied, 534 U.S. 1086, 122 S.Ct. 824, 151
L.Ed.2d 705(2002) (Benham, C.J., concurring) (death penalty conviction and penalty affirmed)
On Deliberate Prosecutorial Suppression of Impeachment Evidence and
Absolute Power Corrupting Absolutely
Lord Acton, the celebrated 19th century British historian and student of politics, formulated an observation about
government and human nature that aptly, and regrettably, fits this case: "Power tends to corrupt, and absolute power
corrupts absolutely." It was for this reason that over one hundred years earlier, the Framers of *1063 our Constitution
meticulously separated the powers given by the People to our government and erected against each a structural series of
checks and balances designed to confront the potential for abuse. Then, by enacting the Bill of Rights, the Framers made
certain that basic principles of a fair and just trial could not be episodically overridden, even by a unanimous legislature, an
overzealous executive, or a wayward judiciary.
In large measure, the Framers were influenced by Charles de Secondat, baron de Montesquieu, an astute student of
history and politics in his own right, who, in his seminal work The Spirit of the Laws, said:
Democratic and aristocratic states are not in their own nature free. Political liberty is to be found only in
moderate governments; and even in these it is not always found. It is there only when there is no abuse of
power: but constant experience shows us that every man invested with power is apt to abuse it, and to carry his
authority as far as it will go. Is it not strange, though true, to say that virtue itself has need of limits?
To prevent this abuse, it is necessary, from the very nature of things, power should be a check to power.
This case provides us with a textbook example of the abuse of executive power contemplated by Montesquieu, Lord
Acton, and the Framers of our Constitution. Rather than adhere to the clear letter of the law, which itself is the ultimate
check against arrogation of power, the prosecutor apparently deliberately withheld from the trial court and from the jury
admissible evidence that would cause any fairminded person to have grave reservations about the credibility of a key
government witness. …
The law and the truth-seeking mission of our criminal justice system, which promise and demand a fair trial whatever the
charge, are utterly undermined by such prosecutorial duplicity. Although our Constitution guarantees to a person whose
liberty has been placed in jeopardy by the State the right to confront witnesses in order to test their credibility, that right
was willfully impaired in this case. By unlawfully withholding patently damaging and damning impeachment evidence, the
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
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INTRODUCTION
prosecutor knowingly and willfully prevented Benn from confronting a key witness against him. Such reprehensible
conduct shames our judicial system.
Prosecutors routinely take an oath of office when they become stewards of the executive power of government. That oath
uniformly includes a promise at all times to support and defend the Constitution of the United States. Fortunately, the great
majority of all prosecutors appreciate the solemnity of this oath. However, if a prosecutor fails to abide by this *1064
undertaking, it is the duty of the judiciary emphatically to say so. Otherwise, that oath becomes a meaningless ritual
without substance.
Benn v. Lambert, 283 F.3d 1040, cert. denied, 537 U.S. 942, 123 S.Ct. 341, 154 L.Ed.2d 249 (9th Cir.
2002) (Trott, C.J., concurring.) (Death penalty conviction reversed due to prosecution’s failure to disclose
extenstive impeachment evidence of key state witness.)
On “Professionalism”
The continued existence of a free and democratic society depends upon recognition of the concept that justice is based
upon the rule of law grounded in respect for the dignity of the individual and the capacity through reason for enlightened
self-government. Law so grounded makes justice possible, for only through such law does the dignity of the individual
attain respect and protection. Without it, individual rights become subject to unrestrained power, respect for law is
destroyed, and rational self-government is impossible.
Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an
understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is
to maintain the highest standards of ethical conduct.
In fulfilling professional responsibilities, a lawyer necessarily assumes various roles that require the performance of
many difficult tasks. Not every situation which a lawyer may encounter can be foreseen, but fundamental ethical
principles are always present as guidelines. With the framework of these principles, a lawyer must with courage and
foresight be able and ready to shape the body of the law to the ever-changing relationships of society.
The Rules of Professional Conduct point the way to the aspiring and provide standards by which to judge the
transgressor. Each lawyer must find within his or her own conscience the touchstone against which to test the extent to
which his or her actions should rise above minimum standards. But in the last analysis it is the desire for the respect and
confidence of the members of the legal profession and the society which the lawyer serves that should provide to a lawyer
the incentive for the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the
ultimate sanction. So long as its practitioners are guided by these principles, the law will continue to be a noble profession.
This is its greatness and its strength, which permit of no compromise.
Preamble to Rules of Professional Conduct
“Professionalism” is no more, and no less, than conducting one’s self at all times in such a manner as to demonstrate
complete candor, honesty, courtesy and avoidance of unnecessary conflict in all relationships with clients, associates,
courts and the general public. It is the personification of the accepted standard of conduct that a lawyer’s word is his or her
bond. It includes respectful behavior towards others, including sensitivity to substance abuse prevention, anti-bias or
diversity concerns. It encompasses the fundamental belief that a lawyer’s primary obligation is to serve his or her clients’
interests faithfully and completely, with compensation only a secondary concern, acknowledging the need for a balance
between the role of advocate and the role of an officer of the court, and with ultimate justice at a reasonable cost as the
final goal. …
Admission to Practice Rule 11.7, Regulation 101(n) of the Regulations of the Washington State Board of
Continuing Legal Education, Washington Court Rules 2001 at 67 (West Group 2000). See also 140 Wn.2d
1111-12.
On “Legal Ethics”
1. The standards of minimally acceptable conduct within the legal profession, involving the duties that its members owe
one another, their clients, and the courts. — Also termed etiquette of the profession. 2. The study or observance of those
duties. 3. The written regulations governing those duties. See MODEL RULES OF PROFESSIONAL CONDUCT.
BLACK’S LAW DICTIONARY 904 (7th ed. 1999)
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
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INTRODUCTION
Washington Oath of Attorney — Admission to Practice Rule 5(d)
State of Washington, County of ________ ss.
I, ________, do solemnly declare:
1. I am fully subject to the laws of the State of Washington and the laws of the United States and will abide by the same.
2. I will support the constitution of the State of Washington and the constitution of the United States.
3. I will abide by the Rules of Professional Conduct approved by the Supreme Court of the State of Washington.
4. I will maintain the respect due to the courts of justice and judicial officers.
5. I will not counsel, or maintain any suit, or proceeding, which shall appear to me to be unjust, or any defense except as I
believe to be honestly debatable under the law, unless it is in defense of a person charged with a public offense. I will
employ for the purpose of maintaining the causes confided to me only those means consistent with truth and honor. I will
never seek to mislead the judge or jury by any artifice or false statement.
6. I will maintain the confidence and preserve inviolate the secrets of my client, and will accept no compensation in
connection with the business of my client unless this compensation is from or with the knowledge and approval of the
client or with the approval of the court.
7. I will abstain from all offensive personalities, and advance no fact prejudicial to the honor or reputation of a party or
witness unless required by the justice of the cause with which I am charged.
8. I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay unjustly
the cause of any person.
________________________________________
Signature
SUBSCRIBED AND SWORN TO before me this ______ day of _________________, ______.
________________________________________
Judge
Proposed Revised Washington Oath of Attorney
At their July 2001 meeting, the Board of Governors approved a revised version of the Oath of Attorney to
be submitted to the Supreme Court for adoption. As proposed by the Board of Governors, the Oath would
read:
The judicial officer administering the oath reads as follows:
Do you accept the invitation of the Supreme Court of Washington to practice before the courts of this State, and solemnly
promise:
1. that you will uphold the laws and Constitutions of the United States and of the State of Washington and support the
principles of constitutional government;
2. that you will support the independence of the judiciary and help sustain its independence by assuring that adequate
provision is made for its support;
3. that you will sustain the rule of law and help realize the promise of liberty for all by assuring equal access to justice for
all;
4. that you will undertake representation of the oppressed, the defenseless, the disempowered, and the just cause, without
regard for considerations personal to yourself, to the end that you make justice manifest and society just;
5. that, as an Officer of the Court, you will maintain the respect due the Court, its officers, staff and all persons appearing
before it;
6. that, as a member of this honorable profession, you will abide by the Rules of Professional Conduct, both in letter and
spirit, always tell the truth and never intentionally mislead by act or omission;
7. that you will faithfully represent your clients, maintain their confidences and preserve as inviolate their communications,
pursuing their just causes by only such means as are consistent with truth and honor;
8. that you will strive at all times to adhere to the highest standards of professional and personal conduct, to advance and
improve the justice system, to act in all ways in service to your clients and your community, and by so doing, be proud to
be a lawyer and become a source of pride to the profession?
The individual(s) taking the oath will respond: Yes. I will. [Can be repeated after each statement above at the discretion of
the person administering the oath.]
Do you now, without equivocation, affirm your sincere and solemn commitment to the fulfillment of all of these promises,
knowing that by so doing you bring honor to yourself, the greater community, and your profession?
The individual(s) taking the oath will respond: Yes. I do
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INTRODUCTION
Washington State Bar Association Creed of Professionalism
As a proud member of the legal profession practicing in the state of Washington, I endorse the following principles of civil
professional conduct, intended to inspire and guide lawyers in the practice of law:

In my dealings with lawyers, parties, witnesses, members of the bench, and court staff, I will be civil and courteous
and guided by fundamental tenets of integrity and fairness.

My word is my bond in my dealings with the court, with fellow counsel and with others.

I will endeavor to resolve differences through cooperation and negotiation, giving due consideration to alternative
dispute resolution.

I will honor appointments, commitments and case schedules, and be timely in all my communications.

I will design the timing, manner of service, and scheduling of hearings only for proper purposes, and never for the
objective of oppressing or inconveniencing my opponent.

I will conduct myself professionally during depositions, negotiations and any other interaction with opposing counsel
as if I were in the presence of a judge.

I will be forthright and honest in my dealings with the court, opposing counsel and others.

I will be respectful of the court, the legal profession and the litigation process in my attire and in my demeanor.

As an officer of the court, as an advocate and as a lawyer, I will uphold the honor and dignity of the court and of the
profession of law. I will strive always to instill and encourage a respectful attitude toward the courts, the litigation
process and the legal profession.
This creed is a statement of professional aspiration adopted by the Washington State Bar Association Board
of Governors on July 27, 2001, and does not supplant or modify the Washington Rules of Professional
Conduct.
Kitsap County Prosecutor’s Office Criminal Division Ground Rules
Note: Deputy prosecutor performance will generally be reflected in the Kitsap County Prosecuting
Attorney Performance Evaluation Criteria referenced parenthetically.
1. Be honest in your dealings with your cases, co-workers and supervisors. (4: Ability to Work With Others)
2. Manage your time effectively by using the GroupWise or other electronic calendaring system. (2: Quantity of Work)
3. Prioritize your cases and create designated time to work on the most important ones. (2: Quantity of Work)
4. Prepare written motions and briefs for high priority cases when appropriate. (1: Quality of Work)
5. Be on time to meetings and to court. (6: Professionalism)
6. Complete your case preps and follow-up requests as early as possible. For Trial Division cases, prepare plea agreements
within two weeks from receiving the file for standard cases. For District & Municipal Court Division cases, prepare plea
offers at the time of charging. (2: Quantity of Work)
7. For Trial Division cases, obtain approval for all reductions and complete thorough reduction memos as soon as
defendants change their plea. (1: Quality of Work)
8. For Trial Division cases, follow calendar policies and prepare CAM sheets so the calendar deputy is aware of all
necessary case information. (4: Ability to Work With Others)
9. Make all required Damion entries. (2: Quantity of Work)
10. Complete and follow Trial Checklists for all trials. For Trial Division cases, turn in the Trial Checklist immediately
after your verdict along with the Trial Stat Sheet. (3: Trial Skills)
11. Control the courtroom and don’t be afraid to take the initiative when necessary. (3: Trial Skills)
12. Follow the file organization protocol and prepare thorough and legible court action notes. (1: Quality of Work)
13. Be a team player. This includes (1) working with and communicating with your legal assistant as a team; and (2)
covering hearings and other matters for team members when possible. (4: Ability to Work With Others)
14. When your supervisor asks you to do something, do it. Provide your supervisor with progress reports, meet deadlines,
and tell your supervisor when you are finished with the task. (4: Ability to Work With Others)
15. Strive to improve your weaknesses as a caseload manager, trial attorney and Criminal Division team member.
(6: Professionalism)
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
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PART I. GENERAL STANDARDS
Standard 3-1.1 The Function of the Standards
These standards are intended to be used as a guide to professional conduct and performance. They are not intended to be
used as criteria for the judicial evaluation of alleged misconduct of the prosecutor to determine the validity of a conviction.
They may or may not be relevant in such judicial evaluation, depending upon all the circumstances.
Excerpt from Commentary to ABA Standard
“These Standards are intended to provide prosecutors with reasoned and appropriate professional advice. They are also
intended to serve as a guide to what is deemed to be proper conduct.…”
1-
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
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PART I.
GENERAL STANDARDS
Standard 3-1.2 The Function of the Prosecutor
(a) The office of prosecutor is charged with responsibility for prosecutions in its jurisdiction.
(b) The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise
sound discretion in the performance of his or her functions.
(c) The duty of the prosecutor is to seek justice, not merely to convict.
(d) It is an important function of the prosecutor to seek to reform and improve the administration of criminal justice. When
inadequacies or injustices in the substantive or procedural law come to the prosecutor's attention, he or she should stimulate
efforts for remedial action.
(e) It is the duty of the prosecutor to know and be guided by the standards of professional conduct as defined by applicable
professional traditions, ethical codes, and law in the prosecutor's jurisdiction. The prosecutor should make use of the
guidance afforded by an advisory council of the kind described in standard 4-1.5.
Excerpt from Commentary to ABA Standard
“The prosecutor plays a critical role in the criminal justice system. All serious criminal cases require the participation of
three entities: a judge (and jury), counsel for the prosecution, and counsel for the accused…”
“Although the prosecutor operates within the adversary system, it is fundamental that the prosecutor’s obligation is to
protect the innocent as well as to convict the guilty, to guard the rights of the accused as well as to enforce the rights of the
public …”
“Since the prosecutor bears a large share of the responsibility for determining which cases are taken into the courts, the
character, quality, and efficiency of the whole system is shaped in great measure by the manner in which the prosecutor
exercises his or her broad discretionary powers …”
“Prosecutors should take advantage of this climate of professional concern by assuming leadership to improve the quality
and efficiency of criminal justice. It is in the public interest for the prosecutor to foster good working relationships with the
defense bar, including defender agencies, and to participate in such activities as criminal law sections of the organized bar
and joint seminars on criminal law and procedure …”
RCW 36.27.020 Duties of a Prosecuting Attorney
(1)
legal advisor to the legislative authority
(2)
legal advisor to all county and precinct officers and school directors
(3)
represent the state, county and all school districts in all criminal and civil proceedings
(4)
prosecute or defend all criminal and civil actions in which the state or county is a party
(5)
attend and give advice to grand jury
(6)
institute and prosecute felony proceedings for the arrest of suspects
(7)
carefully tax all cost bills in criminal cases and take care that no useless witness fees are taxed as costs
(8)
receive all criminal cost bills before district judges where prosecutor not present at trial
(9)
present all election law violations to proper jury
(10) annually examine official bonds of all county and precinct officers and report to legislative authority
(11) annually report to governor the nature of business transacted with suggestions deemed useful
(12) annually report to liquor control board all such prosecutions brought
(13) seek to reform and improve the administration of criminal justice and stimulate efforts to remedy inadequacies or
injustice in substantive or procedural law
See also city attorney duties, RCW 35.23.111
RPC 3.8 Special Responsibilities of a Prosecutor
(a)
probable cause required to file charges
(b)
reasonable efforts that accused advised of right and procedure to obtain counsel
(c)
not seek to obtain waiver of important pretrial right from pro se defendant
(d)
timely disclosure of all exculpatory evidence and sentencing mitigation
(e) reasonable care to prevent investigators, etc. from making extrajudicial statement prosecutor prohibited from making
by RPC 3.6
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
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PART I.
GENERAL STANDARDS
Case Law — Defendant’s Right to Self-Represenation (Faretta)
 State v. Vermillion, 112 Wn.App. 84, 51 P.3d 188 (Div. 2 2002), review denied, 148 Wn.2d 1022, 66
P.3d 638 (2003) (Held that trial court should have granted defendant’s request to proceed pro se.
Convictions reversed) —
The State and Federal Constitutions guarantee a criminal defendant the right to self-representation. U.S. Const., amend. VI
and XIV; Wash. Const., art. I § 22. This right is afforded a defendant despite the fact that exercising *851 the right will
almost surely result in detriment to both the defendant and the administration of justice. State v. Fritz, 21 Wash.App. 354,
359, 585 P.2d 173 (1978). A defendant need not demonstrate technical knowledge of the law and the rules of evidence.
Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The right to self-representation is either
respected or denied; its deprivation cannot be harmless. McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 79
L.Ed.2d 122 (1984).
The right is not absolute, however. In re Richardson, 100 Wash.2d 669, 674, 675 P.2d 209 (1983). For example, the court
bears no affirmative duty to inform a defendant that he has the right; the defendant must personally ask to exercise the
right. State v. Garcia, 92 Wash.2d 647, 654, 600 P.2d 1010 (1979). Once the issue is raised, however, the trial court should
assume responsibility for assuring that the defendant's decision is made with at least minimal knowledge of what the task
entails, preferably through a colloquy on the record assuring that the defendant understands the risks of self-representation.
City of Bellevue v. Acrey, 103 Wash.2d 203, 211, 691 P.2d 957 (1984). At a minimum, a defendant should be apprised of
the seriousness of the charge, the maximum potential penalty involved, and the existence of technical, procedural rules
governing the presentation of the accused's defense. Id.
In order to exercise the right, a defendant's request must be unequivocal, knowingly and intelligently made, and must be
timely. State v. Breedlove, 79 Wash.App. 101, 106, 900 P.2d 586 (1995). The right may not be exercised for the purpose of
delaying the trial or obstructing justice. Id. Even when a request is unequivocal, a defendant may still waive the right of
self-representation **193 by subsequent words or conduct. State v. Luvene, 127 Wash.2d 690, 699, 903 P.2d 960 (1995).
Courts should indulge every reasonable presumption against finding that a defendant has waived the right to counsel. State
v. Chavis, 31 Wash.App. 784, 789, 644 P.2d 1202 (1982).
Mr. Vermillion asserts that he repeatedly, consistently, and unequivocally asserted his right to represent himself, and that
he did so knowingly, intelligently, and in a timely fashion. The record bears this out. He sought to assert his right on five
separate occasions, the first time at an omnibus hearing held on September 30, 1998, before Judge Janice Niemi. At the
hearing, his counsel stated, "In addition, Mr. Vermillion would like to make a motion to go pro se today and I don't know
when the Court wants to hear that." Vol. 3 Report of Proceedings at 3. Judge Niemi declined to address the motion at that
hearing. …
"Where a court is put on notice that the defendant wishes to assert his right to self-representation but it nevertheless delays
ruling on the motion, the timeliness of the request must be measured from the date of the initial request." Breedlove, 79
Wash.App. at 109, 900 P.2d 586. …
The record also demonstrates that Mr. Vermillion's requests were made knowingly and intelligently, that is, he *857
understood the risks of proceeding pro se, the nature and seriousness of the charges, and the fact that he would be held to
the standards of a lawyer although he lacked technical expertise and was only "somewhat" familiar with the rules of
evidence.
The record reflects that both Judge Pechman and Judge Shapira were trying to serve Mr. Vermillion's best interests by
denying his requests for self-representations. Their denials of Mr. Vermillion's motions were based on the belief that selfrepresentation wouldn't be in Mr. Vermillion "best interest" because he was thought not sufficiently educated in the law to
adequately represent himself. However, that is not the test. No showing of technical knowledge is required. Faretta, 422
U.S. at 835, 95 S.Ct. 2525. If a person is competent to stand trial, that person is competent to represent himself. Godinez v.
Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993).
The purpose of asking the defendant about his experience, if any, in representing himself and his familiarity, if any, with
the rules of evidence and other aspects of courtroom procedure is not to determine whether he has sufficient technical skill
to represent himself. Rather, the purpose is to determine whether he fully understands the risks he faces by waiving the
right to be represented by counsel, such as the risk that lack of familiarity with evidentiary rules could result in admission
of prosecution evidence that could have been excluded by a proper objection, or exclusion of defense evidence that the
defendant would like to present but cannot for some reason based on evidentiary rules of which he has no knowledge. See
State v. Hahn, 106 Wash.2d 885, 889-90 and n. 3, 726 P.2d 25 (1986). A defendant need not himself have the skill and
experience of a lawyer in order to competently and intelligently choose self-representation, but the record should establish
that " 'he knows what he is doing and his choice is **196 made with eyes open.' " Id. at 889, 726 P.2d 25, quoting Faretta,
422 U.S. at 835, 95 S.Ct. 2525. "[I]t is the responsibility of the trial court to determine a defendant's competency
intelligently to waive the service of counsel *858 and act as his own counsel, ... [but] any consideration of a defendant's
ability to 'exercise the skill and judgment necessary to secure himself a fair trial' was rendered inappropriate by Faretta."
Hahn, 106 Wash.2d at 890 n. 2, 726 P.2d 25, citing Fritz, 21 Wash.App. at 360, 585 P.2d 173 (other citations omitted).
[FN3]
FN3. We commend to trial courts the advisory list of questions for examining prospective pro se defendants
found in State v. Christensen, 40 Wash.App. 290, 295 n. 2, 698 P.2d 1069 (1985) and the "textbook
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examination" of such a defendant found in Hahn, 106 Wash.2d at 896 n. 9, 726 P.2d 25. The trial court's
colloquy with the defendant in Hahn also illustrates the kind of conversation that should have already taken
place between the defendant and his appointed counsel before the defendant asks the trial court to allow selfrepresentation.
Again, the right of self-representation is afforded a defendant despite the fact that its exercise will almost surely result in
detriment to the defendant, as well as to the administration of justice in the sense that, notwithstanding the fact that pro se
litigants are held to the same standard as lawyers, trials with pro se litigants seldom run as smoothly as trials with
experienced counsel and may take longer, thus contributing to court congestion. See Fritz, 21 Wash.App. at 359, 585 P.2d
173.
Because Vermillion's requests to represent himself were timely, unequivocal, knowing, and intelligent, and because the
trial court's rulings denying the requests were based on the untenable ground that he lacked the necessary skill and
judgment to secure himself a fair trial, we must reverse and remand for a new trial.
[Note. Vermillion provides an excellent summary of law. A competent defendant has a constitutional right
to proceed pro se so long as the request is timely made and the court determines that the defendant is
knowingly and voluntarily waiving the right to counsel. The request does not have to be intelligently made.
Prosecutors must ask the court to conduct a “Faretta” hearing to determine whether to grant a defendant’s
self-representation request as soon as the issue arises. Failure to do so might result in a retrial after appeal.
If the trial court chooses incorrectly, the error is never harmless!]
Kitsap Prosecutor’s Office — Sample Form — Faretta Waiver
Waiver Of Right To Counsel And Order Granting Motion To Proceed Pro Se
You have the constitutional right to represent yourself. There are, however, potential dangers and disadvantages of
representing yourself. The following questions must be answered so that the Judge can determine that the decision to
represent yourself is knowingly made. The Judge will go over your answers in open court. Please initial each line as the
Judge goes over it to indicate that you understand and agree with it.
Defendant’s
Initials
_______ 1.
What was the last grade of school you completed? ____________________.
_______ 2.
Have you ever studied law?  Yes  No
_______ 3.
Have you ever represented yourself or any other defendant in a criminal action?  Yes  No If
yes–
_______ (a) What were the charges? ___________________________________
_______ (b) Did the matter proceeded to trial or appeal?  Yes  No
_______ 4.
Do you realize that you are currently charged with _________________________
_______________________________________________?  Yes  No
_______ 5.
Do you realize that the maximum penalty charged crime is a sentence of ___________ [ months in
prison] [ days in jail], or by a fine of up to $__________, or both?  Yes  No
_______ 6.
Do you realize that if you are convicted of any crime, the court, in addition to imposing jail time and a
fine, could also require you to pay restitution to your victim, to pay court costs, and to obey certain
post-release restrictions on your conduct?  Yes  No
_______ 7.
Do you realize that the standard sentence range for any felony counts will be based on the crime
charged and your criminal history? Criminal history includes prior convictions and juvenile
adjudications, whether in this state, in federal court, or elsewhere.  Yes  No  Not Applicable
_______ 8.
Do you realize that the crime charged carries a mandatory minimum of not less than five years
incarceration and that the deadly weapon enhancement increases that mandatory minimum by another
two years incarceration?
 Yes  No  Not Applicable
_______ 9.
Do you realize that if you are found guilty of more than one crime, this court can order that the
sentences be served consecutively, that is one after another?
 Yes  No
_______ 10.
Do you realize that the prosecuting authority may be able to charge you with additional or other
crimes which may carry greater or increased penalties as this case progresses?  Yes  No
_______ 11.
Do you realize that if you represent yourself, you are on your own, meaning that the Court cannot tell
you how you should present your case, write your memorandums, or obtain the presence of
witnesses?  Yes  No
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_______ 12.
Are you familiar with the Rules of Evidence (ER) and either the Superior Court Criminal Rules
(CrR), which govern the way in which a criminal matter is presented in the superior court, or the
Limited Jurisdiction Court Criminal Rules (CrRLJ), which govern the way in which a criminal matter
is presented in courts of limited jurisdiction, and that these rules will apply to you the same as they
apply to an attorney?  Yes  No
_______ 13.
Do you realize that if you decide to take the witness stand, you must present your testimony by asking
questions of yourself, meaning that you cannot just take the stand and tell your story?  Yes  No
_______ 14.
Do you realize that a lawyer would be familiar with the Rules of Evidence, skilled in following the
Rules of Criminal Procedures, and could advise you of possible defenses to the pending charges? 
Yes  No
_______ 15.
Do you realize that if you decide to represent yourself that if you do not properly present a defense,
subpoena witnesses, or otherwise represent yourself in a competent manner that you will not be able
to obtain a reversal of a conviction on the grounds that you received inept representation?  Yes 
No
_______ 16.
Why do you want to represent yourself? ________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
If you want to represent yourself because you do not believe that you can afford an attorney, do you
realize that an attorney can be appointed at public expense if you are indigent, or if you are partially
able to contribute to the cost of counsel. Your eligibility for court appointed counsel is determined by
a review of your financial resources. Do you wish to be screened for court appointed counsel? 
Yes  No
_______ 17.
Do you realize that once you waive your right to counsel that it is discretionary with the court whether
you may withdraw the waiver?  Yes  No
_______ 18.
Do you realize that if you waive the right to counsel, that the court is not required to delay the
currently set trial date?  Yes  No
_______ 19
Do you realize that while the court may provide you with an attorney as a legal advisor or standby
counsel, that you do not have an absolute right to receive this assistance and that you, and not standby
counsel must prepare for trial?  Yes  No
_______ 20.
Do you realize that your status in the jail will not change simply because you have decided to proceed
without an attorney, meaning that you will not necessarily be provided with any greater access to
pens, paper, law books, telephones, and other services than is provided to any other inmate at the
same security classification?  Yes  No
_______ 21.
Have any threats or promises been made to induce you to waive your right to counsel?  Yes  No
_______ 22.
In light of the penalty that you might suffer if you are representing yourself, and all the information
you have just been given, is it still your desire to represent yourself and to give up your right to be
represented by a lawyer?  Yes  No
_______ 23.
Is your decision entirely voluntary on your part?  Yes  No
Defendant’s Declaration
I declare under penalty of perjury under the laws of the state of washington that i have read and completed this form. I have
no questions for the court about the risks of representing myself or about my right to have counsel appointed to assist me. I
request that the court allow me to represent myself.
Dated ________________________________.
______________________________________
Defendant
Order Granting Motion to Proceed Pro Se
The foregoing waiver was signed by the Defendant in open court in the presence of the undersigned Judge. The
Defendant asserted that he or she had previously read the entire statement above and that he or she understood it in full.
I find the Defendant has knowingly, intelligently and voluntarily waived the right to counsel, and has evidenced no sign
of incompetency to stand trial. It is therefore
Ordered that the Defendant’s motion to proceed pro se is granted.
Dated this _____ day of ____________________, _____.
______________________________________
Judge
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Case Law — Recoupment of Indigent Appellate Costs
 State v. Blank, 131 Wn.2d 230, 930 P.2d 1213 (1997) (RCW 10.73.160 recoupment statute that allows
appellate court to order convicted indigent defendants to pay appellate costs, including appointed counsel
fees, is constitutional).
 State v. Wright, 97 Wn.App. 382, 985 P.2d 411 (Div. 2 1999) (trial court is required by statute to
amend judgment to include appellate costs award, and has no discretion to consider defendant’s ability to
pay).
Case Law — Contact With Suspect — Prosecutor Suspended for Pretending to be
Defense Attorney to Convince Suspect to Surrender
After months of hearings, Mark Pautler, a Jefferson County, Colorado Chief Deputy District Attorney
was suspended for three months from practicing law but stayed for one year while he will be on probation.
In that time, he must complete 20 hours of ethics training, pass the ethics portion of the Multistate bar, and
be supervised by another attorney. The sanction is for Pautler’s inappropriately representing himself as a
defense attorney to get a confessed ax murderer to surrender. The suspect, wanted for brutally murdering
three women and kidnapping, torturing and raping a fourth, asked to speak with a public defender near the
end of negotiations with police for his surrender. After some consideration, Pautler took the telephone,
gave a false name, and told the suspect he was a public defender. The suspect thereafter surrendered.
Shortly after discovering that Pautler lied to him, the defendant fired his attorneys, represented himself and
pled guilty. He was sentenced to death.
In a 2-1 decision, the disciplinary panel found that Pautler violated RPC 8.4(c) (engage in conduct
involving dishonesty, fraud, deceit or misrepresentation) and RPC 4.3 (duties of lawyer when dealing with
unrepresented person). “The Rules of Professional Conduct mandate that lawyers may not, cannot and must
not engage in conduct involving deceit,” stated the majority’s decision. “The ends do not justify the
means.”
A dissenting panel member recommended the lesser penalty of public censure for Pautler. The
dissenter said the harsher penalty was inappropriate given that Pautler’s main motivation for misleading the
suspect was to get him to surrender without harming anyone further.
Pautler said he lied about being a public defender to ensure that the suspect surrendered in a peaceful
fashion, and would do so again because the suspect indicated during the negotiations that he would kill
again. Defense attorneys were especially concerned about Pautler’s lack of remorse, and asserted that had a
defense attorney pretended to be a prosecutor, the attorney would be disbarred.
Pautler has appealed the decision to the Colorado Supreme Court. “I knew there might be some
repercussions,” Pautler says. The police wanted to maintain tight control over the situation, and “we didn’t
know what a defense lawyer would do” in those circumstances. It was feared that the murderer was too
streetwise to be fooled by the ruse of having a police officer pose as a lawyer. See ABA Network (visited
May 11, 2002) <http://www.abanet.org/journal/jun01/npose.html>.
The Colorado Supreme Court affirmed the disciplinary panel findings in People v. Pautler, 47 P.3d
1175 (Colo. 2002) (Held that: (1) no imminent public harm exception existed to the ethical principle that a
lawyer may not engage in deceptive conduct; (2) attorney violated the professional conduct rule that
provided that, in dealing on behalf of a client with a person not represented by counsel, the attorney was
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required to state he was representing a client and could not state or imply that the attorney was
disinterested; and (3) suspension for three months, which was stayed during twelve months of probation
during which the attorney was to take ethics courses and retake the professional responsibility examination,
was reasonable.) The Court noted —
I will employ such means as are consistent with Truth and Honor; I will treat all persons whom I encounter
through my practice of law with fairness, courtesy, respect, and honesty.
Oath of Admission--Colorado State Bar, 2002 [FN1]
FN1. The Oath of Admission that Mark Pautler actually took when he was sworn into the Colorado Bar in 1975
read:
"I will ... advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the
justice of the Oath of Admission--Colorado State Bar, 1975
In the intervening years, this court has changed the Oath in a way that more specifically reflects the
commitment to the basic precepts of the profession: fairness, courtesy, respect and honesty.
In this proceeding we reaffirm that members of our profession must adhere to the highest moral and ethical standards.
Those standards apply regardless of motive. Purposeful deception by an attorney licensed in our state is intolerable, even
when it is undertaken as a part of attempting to secure the surrender of a murder suspect. A prosecutor may not deceive an
unrepresented person by impersonating a public defender. We affirm the hearing board's finding that the district attorney in
this case violated the Colorado Rules of Professional Conduct, and on somewhat different grounds, including the attorney's
failure to disclose his deception immediately after the event, we also affirm the discipline imposed by the hearing board….
Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role
requires an understanding by lawyers of their relationship with and function in our legal system. A consequent
obligation of lawyers is to maintain the highest standards of ethical conduct.
Colo. R.P.C. pmbl.
The jokes, cynicism, and falling public confidence related to lawyers and the legal system may signal that we are not living
up to our obligation; but, they certainly do not signal that the obligation itself has eroded. For example, the profession itself
is engaging in a nation-wide project designed to emphasize that "truthfulness, honesty and candor are the core of the core
values of the legal *1179 profession." [FN2] Lawyers themselves are recognizing that the public perception that lawyers
twist words to meet their own goals and pay little attention to the truth, strikes at the very heart of the profession--as well as
at the heart of the system of justice. Lawyers serve our system of justice, and if lawyers are dishonest, then there is a
perception that the system, too, must be dishonest. Certainly, the reality of such behavior must be abjured so that the
perception of it may diminish. With due regard, then, for the gravity of the issues we confront, we turn to the facts of this
case….
The Rules of Professional Conduct apply to anyone licensed to practice law in Colorado. See In re C de Baca, 11 P.3d 426,
429-30 (Colo.2000) (ruling that lawyers must adhere to the Rules of Professional Conduct even when suspended from the
practice of law). The Rules speak to the "role" of attorneys in society; however, we do not understand such language as
permitting attorneys to move in and out of ethical obligations according to their daily activities. Pautler cites Higgs v.
District Court, 713 P.2d 840 (Colo.1985), for the proposition that this court has provided a test for distinguishing when
prosecutors act as "advocates" and when they act as "investigators," for purposes of governmental immunity. Id. at 853.
Such test exists, but we hold here that in either role, the Rules of Professional Conduct apply. The obligations concomitant
with a license to practice law trump obligations concomitant with a lawyer's other duties, even apprehending criminals.
Moreover, this case does not confront us with the propriety of an attorney using deceit instead of lethal force to halt a
fleeing felon. We limit our holding to the facts before us. Until a sufficiently compelling scenario presents itself and
convinces us our interpretation of Colo. RPC 8.4(c) is too rigid, we stand resolute against any suggestion that licensed
attorneys in our state may deceive or lie or misrepresent, regardless of their reasons for doing so….
In sum, we agree with the hearing board that deceitful conduct done knowingly or intentionally typically warrants
suspension, or even disbarment. See ABA Standards 7.2 ("Suspension is generally appropriate when a lawyer knowingly
engages in conduct that is a violation of a duty owed to the profession ...."); id. at 5.11(b) ("Disbarment is generally
appropriate when ... a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or
misrepresentation...."). We further agree that the mitigating factors present in Pautler's case outweigh the aggravating
factors, and affirm the imposition of a three-month suspension, which shall be stayed during twelve months of probation.
This sanction reaffirms for all attorneys, as well as the public, that purposeful deception by lawyers is unethical and will
not go unpunished. At the same time, it acknowledges Pautler's character and motive.
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Case Law — Contact With Represented Defendant
 In re Disciplinary Proceeding Against Carmick, 146 Wn.2d 582, 48 P.3d 311 (2002) (Lawyer
suspended for 60 days for making misrepresentations to obtain ex parte order and for directly
communicating with an adverse party the lawyer should have known was represented by counsel.)—
The Rules of Professional Conduct provide that in representing a client, an attorney shall not communicate about the
subject of the representation with a party the attorney knows to be represented by another attorney in the matter, unless the
attorney has the consent of the party's attorney. RPC 4.2. The rule's purpose is to prevent situations in which a represented
party is taken advantage of by adverse counsel. Wright v. Group Health Hosp., 103 Wash.2d 192, 197, 691 P.2d 564
(1984). An attorney cannot evade the requirement of obtaining consent by disregarding the obvious. Model Rules R. 4.2
cmt. 5. We have held previously the existence of an attorney-client relationship turns largely on the client's belief it exists.
Bohn v. Cody, 119 Wash.2d 357, 363, 832 P.2d 71 (1992); In re Disciplinary Proceeding Against McGlothlen, 99 Wash.2d
515, 522, 663 P.2d 1330 (1983). …
Carmick next contends that due to the custom in Lewis County at the time, he reasonably believed he could engage in
direct negotiation with McCracken. The WSBA argues that while parties are authorized to deal directly with one another,
that authorization would not apply to an attorney, and Carmick's reliance on a local custom or Catron's authorization to
negotiate directly with McCracken was misplaced.
An attorney should know that approved contact between the parties to a dispute does not authorize an attorney to contact a
represented party, nor does local custom supersede the RPCs. The RPCs may not be waived by local custom. Where there
is a reasonable basis for an attorney to believe a party may be represented, the attorney's duty is to determine whether the
party is in fact represented. We find Carmick violated this duty because he should have known Butler represented
McCracken. We affirm the Disciplinary Board conclusion of law 4 that Carmick violated his duty under RPC 4.2.
[Note. Prosecutors must be extremely careful dealing directly with defendants and their families, especially
over the telephone. The best practice is to avoid telephonic discussions, and only deal with defendants in
open court after the defendant has made clear that he or she is not represented by counsel. Prosecutors
should make sure to make a record in open court before the judge of whatever was discussed, and that the
defendant is not represented.]
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Standard 3-1.3 Conflicts of Interest
(a) A prosecutor should avoid a conflict of interest with respect to his or her official duties.
(b) A prosecutor should not represent a defendant in criminal proceedings in a jurisdiction where he or she is also
employed as a prosecutor.
(c) A prosecutor should not, except as law may otherwise expressly permit, participate in a matter in which he or she
participated personally and substantially while in private practice or nongovernmental employment unless under applicable
law no one is, or by lawful delegation may be, authorized to act in the prosecutor's stead in the matter.
(d) A prosecutor who has formerly represented a client in a matter in private practice should not thereafter use information
obtained from that representation to the disadvantage of the former client unless the rules of attorney-client confidentiality
do not apply or the information has become generally known.
(e) A prosecutor should not, except as law may otherwise expressly permit, negotiate for private employment with any
person who is involved as an accused or as an attorney or agent for an accused in a matter in which the prosecutor is
participating personally and substantially.
(f) A prosecutor should not permit his or her professional judgment or obligations to be affected by his or her own political,
financial, business, property, or personal interests.
(g) A prosecutor who is related to another lawyer as parent, child, sibling, or spouse should not participate in the
prosecution of a person who the prosecutor knows is represented by the other lawyer. Nor should a prosecutor who has a
significant personal or financial relationship with another lawyer participate in the prosecution of a person who the
prosecutor knows is represented by the other lawyer, unless the prosecutor's supervisor, if any, is informed and approves or
unless there is no other prosecutor authorized to act in the prosecutor's stead.
(h) A prosecutor should not recommend the services of particular defense counsel to accused persons or witnesses unless
requested by the accused person or witness to make such a recommendation, and should not make a referral that is likely to
create a conflict of interest. Nor should a prosecutor comment upon the reputation or abilities of defense counsel to an
accused person or witness who is seeking or may seek such counsel's services unless requested by such person.
Excerpt from Commentary to ABA Standard
“A prosecutor’s client is the people who live in the prosecutor’s jurisdiction. Since all lawyers have a fiduciary duty to
their clients, the professional judgment of the prosecutor must be exercised, within the bounds of the law, solely for the
benefit of the client—the people—free of any compromising influences or loyalties …”
“Furthermore, a prosecutor should not allow personal, ideological, or political beliefs to interfere with the professional
performance of official duties …”
“The correct role of the prosecutor is to strive not for ‘courtroom victories’ or media or public attention, but for results that
best serve the overall interests of justice and that satisfy the prosecutor’s fiduciary and statutory duties to the people in a
lawful and professional manner …”
“Prosecutors as Defense Counsel. It is inappropriate to permit a lawyer who regularly serves as a prosecutor to also appear
as defense counsel in the same jurisdiction, opposing someone who ordinarily is an associate in the prosecutor’s office …”
“Former Defense Practice. A lawyer’s duty of confidentiality to his or her client continues after the termination of the
attorney-client relationship. Accordingly, it is improper for a prosecutor who has formerly engaged in private practice to
use confidential information obtained during a former attorney-client relationship to the disadvantage of the former client
when that information retains its privileged character … This prohibition, set out in section (c), should not, however, be
construed vicariously to disqualify other prosecutors in the prosecutor’s office from such participation in the absence of
some additional conflictive factor or the possession of confidential information by the other prosecutors …”
“Negotiating for Employment. Because of the improper appearance such negotiations might create, prosecutors should not
seek employment from any person who is significantly involved in a matter in which the prosecutor is presently
participating both personally and substantially …”
“Prosecutor Who Is Related to Defense Counsel. A prosecutor’s familial interests can be the source of conflict of interest
just as much as any other competing interest … Given the importance of assuring public confidence in the administration
of criminal justice, this prohibition should be imposed with the possibility of exception based upon a supervisor’s consent.
However, such a conflict should not be imposed vicariously upon other prosecutors in the prosecution office … Where a
prosecutor has a significant, albeit nonfamilial, personal or financial relationship with defense counsel on the other side of
the matter, a conflict of interest may also arise. The prosecutor should either decline or withdraw from participation in such
an instance or should obtain his or her supervisor’s consent before proceeding.”
“Improper Referrals and Comments. A prosecutor may possess a natural and understandable interest both in who is
representing an accused person or a material witness and in how vigorously that individual is being represented … As a
result, prosecutors should avoid a potential source of conflict of interest by generally refraining from making referrals of
such individuals to particular defense counsel … In balancing these interests, section (h) provides that it is not improper for
a prosecutor who has not initiated the subject to make a specific recommendation of defense counsel in response to a direct
request from such an individual … Similarly, in the interests of the overall integrity of the criminal justice system,
prosecutors should exercise great restraint when otherwise tempted to comment upon the reputation or abilities of a
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particular defense counsel to an individual seeking defense representation …”
Rules of Professional Conduct
1.7 Conflict of Interest; General Rule
1.8 Conflict of Interest; Prohibited Transactions; Current Client
1.9 Conflict of Interest; Former Client
1.10 Imputed Disqualification; General Rule
1.11 Successive Government and Private Employment
Case Law — Prosecution of Former Client
 Stenger Analysis. State v. Stenger, 111 Wn.2d 516, 760 P.2d 357 (1988) appears to allow an attorney
to prosecute a former client for incidents unrelated to the former representation but the Court did note some
policy concerns about information learned from the client due to the former representation.
As a corollary of this general rule, a prosecuting attorney is disqualified from acting in a criminal case if the prosecuting
attorney has previously personally represented or been consulted professionally by an accused with respect to the offense
charged or in relationship to matters so closely interwoven therewith as to be in effect a part thereof.
Stenger, 111 Wn.2d at 520 (prosecutor’s office disqualified in potential death penalty case since prosecutor
had previously represented defendant).
After discussing policy concerns that the prosecuting attorney’s prior representation would likely
provide the attorney with some knowledge of facts upon which the prosecution is predicated or which are
closely related thereto, the Court noted the general rule allowing an attorney to prosecute a former client for
new criminal law violations —
Under the facts of this case, and based on the foregoing rules, the prosecuting attorney would not have been disqualified
from prosecuting the murder in the first degree charge against the defendant since that charge by itself is unrelated to the
accused’s previous crimes concerning which the prosecuting attorney represented him.
Stenger, 111 Wn.2d at 521.
Stenger disallowed the representation, though, since the offense was a death penalty case and the
prosecuting attorney could have been aware of factual information obtained while representing the
defendant which had the potential to be used in making the decision to seek the death penalty.
The policy concern noted in Stenger is present in virtually all criminal cases involving a former public
defender who prosecutes a former client for a new offense. Courts of limited jurisdiction typically are
concerned about recidivism, alcoholism and/or batterer’s treatment, as well as other rehabilitation issues. A
deputy prosecutor is expected to make recommendations to the court on these sentencing issues. The
attorney, in forming an opinion concerning proper punishment and rehabilitation, very well might have
information from the former representation that could be used either for or against the former client.
This being the case, Stenger could be read narrowly to allow the attorney to prosecute a former client
so long as the case does not involve the death penalty, or be read broadly to prohibit the attorney’s
involvement in any future prosecution of that former client since the attorney’s knowledge from the former
representation “including information about the defendant’s background and earlier criminal and antisocial
conduct, is information closely interwoven with the prosecuting attorney’s exercise of discretion” in
seeking the penalty sought. Stenger, 111 Wn.2d at 521-22.
 Greco Analysis. State v. Greco, 57 Wn.App. 196, 201, 787 P.2d 940, review denied, 114 Wn.2d 1027
(Div. 2 1990) sheds little light on this issue since the representation of the county auditor in his official
capacity did not provide the prosecuting attorney with “any information personal to Greco.” The Court
concluded, accordingly, that no conflict of interest arose since the prosecuting attorney could not have used
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improperly obtained information to prosecute Greco.
The Court of Appeals implies, though, that the issue is to be resolved on a case-by-case basis
depending on a defense showing of how information obtained from the prior representation was being
improperly used in the current prosecution —
Neither is any information Griffies [prosecuting attorney] obtained in the previous cases shown to be interwoven with the
facts of this case. Thus, Griffies did not have a conflict of interest.
Greco, 57 Wn.App. at 201.
 Ladenburg Analysis. State v. Ladenburg, 67 Wn.App. 749, 840 P.2d 228 (Div. 2 1992), abrogated on
other grounds by State v. Finch, 137 Wn.2d 792, 975 P.2d 967, cert. denied, 528 U.S. 922, 120 S.Ct. 285,
145 L.Ed.2d 239 (1999) (Prosecutor’s decisions whether to file charges, whether to plea bargain, and
whether to seek death penalty, are executive, rather than adjudicatory, decisions, so that appearance of
fairness doctrine is inapplicable with respect to such decisions) involved the prosecution of a prosecuting
attorney’s nephew. Division 2 found no conflict of interest existed for the following reasons —
Not a death penalty case
No RPC specifically prohibited prosecution of a family member or relative
No suggestion that the prosecuting attorney had any prior professional relationship where information could have been
obtained and used to the nephew’s disadvantage
No indication that the prosecuting attorney actively participated in the case
The prosecutor’s office was large
No evidence that the deputy prosecutor’s judgment was influenced by prosecuting attorney
 Dominguez Analysis. Although not directly on point, a judicial disqualification case provides some
insight. In State v. Dominguez, 81 Wn.App. 325, 914 P.2d 141 (Div. 3 1996), a former client challenged a
judge for potential bias since the judge could have had information obtained from the former representation
(and prior prosecution of the former client) which could be used to the former client’s disadvantage.
Division 3 upheld the judge’s refusal to disqualify himself, saying —
…the mere fact that the judge earlier acted once for Mr. Dominguez and once against him, both times in his professional
capacity as an attorney, does not establish potential bias. Generally, disqualification is required when a judge has
participated as a lawyer in the case being adjudicated; however, unless there is a specific showing of bias, a judge is not
disqualified merely because he or she worked as a lawyer for or against a party in a previous, unrelated case…
Had Mr. Dominguez presented sufficient evidence of potential bias for the appearance of fairness doctrine to apply, we
would then consider whether it was violated. The test is whether a reasonably prudent and disinterested observe would
conclude Mr. Dominguez obtained a fair, impartial, and neutral trial.
Dominguez, 81 Wn.App. at 329-30.
Case Law — Prosecution of Criminal Defense Attorney
Alaska v. Wallace Tetlow, Anchorage Superior Court Cause No. 3AN-01-3356 CR.
Wallace Tetlow, an Anchorage public defender, was prosecuted for an incident arising out of a one car
accident when he drove into a light pole about one block from his passenger’s home. The only injury was
an abrasion suffered on the passenger’s face due to deployment of an airbag. The two men, whom one
witness described as “wobbling” left the scene. Tetlow reported the accident the next morning.
To avoid an appearance of a conflict of interest, the Anchorage DA’s office transferred the case to the
DA’s office in nearby Palmer for evaluation by a prosecutor who had not argued cases against Tetlow. The
prosecutor concluded that Tetlow should be allowed to plead guilty to two misdemeanors, reckless driving
and assault in the fourth degree. Tetlow believed on March 1, 2001 that the plea negotiation was a “done
deal.”
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Cynthia Cooper was a 20 year veteran prosecutor in the Alaska Department of Law, and was
monitoring this case. On March 7, 2001, Cooper reassigned the case from Palmer to the office of special
prosecutions and appeals in the Attorney General’s office, which presides over the Department of Law.
Tetlow was told he would have to plead guilty to a felony. He was thereafter charged with third degree
assault, DUI and failure to give notice of accident.
On April 1, 2002, the trial judge, Jonathan H. Link, in a 53 page decision, held that Cooper prosecuted
Tetlow “because of who Tetlow was, not because of what he did.” Link held that the case revealed that
“the animus” between prosecutors and defense attorneys was at the root of Cooper’s decision to
persue felony charges against Tetlow. That animus caused the state to charge Tetlow “for
constitutionally impermissible reasons.” The court dismissed the charges filed by the Attorney General,
and permitted Tetlow to plead guilty to the original charges of reckless driving and fourth degree assault.
On April 22, 2002, Cooper resigned.
The trial court’s scathing decision is available at <http://146.145.213.90/nlj/0422alaska-decision.pdf>
(visited April 22, 2002).
Case Law — Deputy Prosecutor as Witness
 State v. Bland, 90 Wn.App. 677, 679-80, 953 P.2d 126, review denied, 136 Wn.2d 1028, 972 P.2d 465
(Div. 1 1998) (disqualification of entire prosecutor’s office and appointment of special prosecutor not
required when deputy prosecutor testified as state’s witness in her dual capacity as a social worker) —
Under RPC 3.7, the advocate-witness rule, a lawyer may not act as an advocate in a trial in which another lawyer from
the same firm is likely to testify because there are difficulties in cross-examining or impeaching an interested witness and
the roles of advocate and witness are inherently inconsistent. The State first argues that rule does not apply to attorneys in
the prosecutor’s office because it is not a “law firm” as defined in the rule. A law firm is “a lawyer or lawyers in a private
firm, lawyers employed in the legal department of a corporation or other organization and lawyers employed in a legal
services organization. While it is not specifically mentioned, nothing in this definition precludes inclusion of the
prosecutor’s office. To do so would exclude that office from the operation of other rules such as RPC 1.10, imputed
disqualification, and RPC 1.12, the former judge rule. We do not believe this was the intent of the drafting committee.
Therefore, we agree with Bland that RPC 3.7 applies to public law offices such as the prosecutor’s office.
But we reject his contention that the rule mandates disqualification of the entire office in this case. A deputy prosecutor
does not represent a “client” in the traditional sense, and the deputy has no financial interest in the outcome of the case.
Therefore, a more flexible application of the RPCs is appropriate where a public law office is concerned. Trial courts
should consider whether the testifying deputy can be an objective witness, whether the dual positions artificially bolster the
witness’s credibility or make it difficult for the jury to weight the testimony, and whether the dual role raises an appearance
of unfairness. If, after considering those factors, the court concludes the defendant will not be prejudiced, it need not order
disqualification. But if the deputy is personally involved in prosecuting the case or has another personal interest which
would raise a conflict of interest or appearance of unfairness, the office should be disqualified, and the trial court should
appoint a special prosecutor for the case.
 United States v. Edwards, 154 F.3d 915, 921-23 (9th Cir. 1998) (Defendant convicted in federal
district court of poss/cocaine with intent to distribute. The key evidence was cocaine found in a black bag.
After defense opening statement where defense said no evidence tying defendant to the bag, assistant AG
who was trying the case notified defendant that he had found a bail receipt (with officers present) in the bag
under a cardboard liner with defendant’s name on it. The bag had been in police custody for two years with
this “evidence” not found. Held: conviction reversed) —
It is well settled that a prosecutor in a criminal case “has a special obligation to avoid ‘improper suggestions, insinuations
and especially assertions of personal knowledge.’ “ A prosecutor may not impart to the jury his belief that a government
witness is credible. Such improper vouching may occur in at least two ways. The prosecutor may either “place the prestige
of the government behind the witness or ... indicate that information not presented to the jury supports the witness’s
testimony.” When the credibility of witnesses is crucial, improper vouching is particularly likely to jeopardize the
fundamental fairness of the trial.
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Akin to the rule against vouching is the advocate-witness rule, under which attorneys are generally prohibited from
taking the witness stand to testify in a case they are litigating. As with vouching, the policies underlying the application of
the advocate-witness rule in a criminal case are related to the concern that jurors will be unduly influenced by the prestige
and prominence of the prosecutor’s office and will base their credibility determinations on improper factors. Moreover,
the rule reflects a broader concern for public confidence in the administration of justice, and implements the
maxim that justice must satisfy the appearance of justice. This concern is especially significant where the
testifying attorney represents the prosecuting arm of the federal government.
...From the cases on vouching and the advocate-witness problem, it is clear that both of these rules were designed to
prevent prosecutors from taking advantage of the natural tendency of jury members to believe in the honesty of lawyers in
general, and government attorneys in particular, and to preclude the blurring of the “fundamental distinctions” between
advocates and witnesses. Although the circumstances of this case do not fit neatly under either rule, there can be no
question that the policies underlying both rules were directly contravened by the prosecutor’s continued representation of
the government in Edwards’s criminal prosecution. Once the members of the jury learned that the prosecutor found the
evidence, it is almost certain that they attributed the authority of the prosecutor’s office to the receipt’s discovery....
The vouching in this case was far more serious than in the ordinary circumstances. The prosecutor did not simply make
one or two isolated statements regarding the credibility of a particular witness. Instead, he repeatedly vouched for the
reliability of a key piece of evidence, both by presenting witnesses to verify that the receipt was not planted and by arguing
that it was a bona fide piece of evidence. In effect, the prosecutor functioned throughout the second half of trial as a silent
witness for the prosecution. Unlike other witnesses, however, he was not subject to cross-examination and the jury
members never had the opportunity to evaluate for themselves whether his story was to be believed.
 State v. Schmitt, 124 Wn.App. 662, 102 P.3d 856 (Div. 2 2004) (Trial court disqualified entire
prosecutor’s office because deputy prosecutor was likely to be material witness. Held that trial court
improperly disqualified entire office.)
Generally, a court should not disqualify an attorney absent compelling circumstances. PUD, 124 Wash.2d at 812, 881 P.2d
1020. To demonstrate compelling circumstances, a party *667 must show that the attorney will provide material evidence
unobtainable elsewhere. [FN7] PUD, 124 Wash.2d at 812, 881 P.2d 1020.
FN7. The third factor, that testimony may prejudice the attorney's client is not relevant here.
Here, Schmitt told the trial court that he planned to use Forbes's testimony to show that Lagenour's allegations against him
did not include threats against her until after Forbes spoke to her. As such, he asserts, Forbes's testimony was material to
the charges against him and the information was not obtainable elsewhere.
In ruling, the trial court opined that Forbes's testimony was material, unobtainable elsewhere, and key to the defense's
theory. It also made note of Lagenour's differing accounts of Schmitt's threats and that the account changed after Forbes
spoke with Lagenour. The trial court further noted that this will "put the State in the position where it's acting both as a
witness trying to persuade the jury as to a particular set of factual events and also an advocate for this set of factual events.
This is exactly the circumstance that rule 3.7 is designed to avoid." Clerk's Papers at 80. We agree. Although under these
facts it is a close call, we cannot say that the trial court abused its broad discretion in so ruling.
The State further contends that the trial court erred in disqualifying the entire Kitsap County prosecutor's office. It asserts
that the court abused its discretion in disqualifying the office because Forbes prosecuted the case against Schmitt.
In disqualifying the entire prosecutor's office, the trial court noted that "Ms. Forbes has been personally involved in
prosecuting the case" and that the facts were similar to those in Bland. Clerk's Papers at 79. In Bland, the trial court
declined to disqualify the entire prosecutor's office where a social worker who treated the attempted rape victim also served
as a deputy prosecutor. In Bland, Division *668 One affirmed the trial court, noting that although the social worker
testified at trial in that capacity, she did not act as a deputy prosecuting attorney and, thus, her testimony did not violate the
spirit of RPC 3.7. 90 Wash.App at 678-81, 953 P.2d 126.
Here, the trial court apparently relied on Bland's language that where a deputy prosecuting attorney is personally involved
in prosecuting a defendant or has another personal interest that would raise a conflict of interest, [FN8] the office should be
disqualified and **860 a special prosecutor appointed. 90 Wash.App. at 681, 953 P.2d 126.
FN8. As an additional reason to appoint a special prosecutor, the Bland court stated that a deputy prosecuting attorney may
have a personal interest that gives rise to the appearance of unfairness. 90 Wash.App. at 681, 953 P.2d 126. In Finch,
however, our Supreme Court held that the appearance of fairness doctrine applies only to judicial or quasi-judicial decision
makers, not prosecutors acting as advocates. 137 Wash.2d at 808-09, 975 P.2d 967.
But our Supreme Court previously reached a different conclusion in State v. Stenger, 111 Wash.2d 516, 760 P.2d 357
(1988). There, our Supreme Court held that where the elected prosecuting attorney
has previously personally represented the accused in the same case or in a matter so closely interwoven
therewith as to be in effect a part thereof, the entire office of which the prosecuting attorney is the
administrative head should ... be disqualified from prosecuting the case and a special deputy prosecuting
attorney appointed.
Stenger, 111 Wash.2d at 522, 760 P.2d 357. [FN9]
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FN9. Although Stenger involved the application of RPC 1.9(a) and RPC 1.11, not RPC 3.7, we do not perceive
an applicable distinction here.
The Stenger court went on to distinguish between the effect of disqualifying the elected prosecuting attorney and a deputy
prosecuting attorney. Whereas particular facts may require disqualifying an entire office based on the elected prosecutor's
previous involvement in a case, the same action does not follow from a deputy's involvement and disqualification. Stenger,
111 Wash.2d at 522-23, 760 P.2d 357. In that instance, where the deputy can be "effectively screened and separated from
any participation or *669 discussion of matters concerning which the deputy prosecuting attorney is disqualified, then the
disqualification of the entire prosecuting attorney's office is neither necessary nor wise." Stenger, 111 Wash.2d at 523, 760
P.2d 357.
We decline to apply the reasoning in Bland [FN10] rather than in our Supreme Court's holding in Stenger, 111 Wash.2d at
522, 760 P.2d 357. [FN11] Following Stenger, we note that it is neither wise nor prudent to disqualify the entire
prosecutor's office here. Thus, we hold that the trial court abused its discretion in doing so here.
FN10. We question the Bland court's application of Stenger and note that the language at issue is dicta and
should be distinguished on that basis.
FN11. We need not follow the decisions of other divisions of this court. McClarty v. Totem Elec., 119
Wash.App. 453, 469 n. 8, 81 P.3d 901 (2003). But we must follow our Supreme Court's decisions. State v.
Hairston, 133 Wash.2d 534, 539, 946 P.2d 397 (1997).
Case Law — The Appearance of Fairness Doctrine
 State v. Tolias, 84 Wn.App. 696, 929 P.2d 1178 (Div. 3 1997), reversed on other grounds, 135 Wn.2d
133, 954 P.2d 907 (1998) (prosecutor allegedly attempted to mediate neighborhood dispute and when
mediation efforts failed, filed second degree assault charges arising out of the same controversy; Held by
Div. 3: prosecutor violated appearance of fairness doctrine, conviction reversed and remanded for new
trial) (Supreme Court reversed Div. 3 because defendant found to have waived appearance of propriety
objection by his failure to raise the issue in the trial court; Held: conviction affirmed) —
A judicial proceeding is valid under the appearance of fairness doctrine “only if a reasonably prudent and disinterested
observer would conclude that all parties obtained a fair, impartial, and neutral hearing.” State v. Ladenburg, 67 Wn.App.
749, 754-55, 840 P.2d 228 (Div. 2 1992); State v. Post, 118 Wn.2d 596, 618, 826 P.2d 172, 837 P.2d 599 (1992). The
doctrine is “directed at the evil of a biased or potentially interested judge or quasi-judicial decision maker.” Post, 118
Wn.2d at 619; see also State v. Perez, [supra]. A prosecutor is a quasi-judicial officer, and “‘in the interest of justice must
act impartially.’” Ladenburg, 67 Wn.App. at 751. The appearance of fairness doctrine, therefore, applies to a prosecutor,
at least up to and including the decision to file criminal charges against a defendant. Id. at 754.…
We hold that the actions of the Yakima County Prosecutor, while motivated by the laudable intention of defusing a
volatile situation, created an appearance of unfairness.…
Our holding is not intended to suggest that a prosecutor may not in appropriate circumstances engage in mediation as an
alternative to prosecution. Nor do we suggest that a prosecuting attorney’s role in mediation will inevitably preclude a
subsequent prosecution arising from the same controversy. When a prosecuting attorney engages in mediation, however,
his or her entire office should be disqualified from participating in subsequent prosecution unless “that prosecuting attorney
separates himself or herself from all connection with the case and delegates full authority and control over the case to a
deputy prosecuting attorney.…” State v. Stenger, 111 Wn.2d 516, 522, 760 P.2d 357 (1988).
 State v. Finch, 137 Wn.2d 792, 975 P.2d 967, cert. denied, 528 U.S. 922, 120 S.Ct. 285, 145 L.Ed.2d
239 (1999) (Death penalty case. Held: Appearance of Fairness doctrine does not required prosecutor to
hold a public hearing prior to filing death notice, conviction affirmed, but sentence reversed due to
improper shackling of Defendant.) —
The Defendant argues that the trial judge erred in denying his motion to recuse the Snohomish County Prosecutor’s
Office. This motion was primarily based on a statement made by Seth Dawson, prosecuting attorney at the time of the
incident, that appeared in the Everett Herald. Seth Dawson stated that Sgt. Kinard “was respected by every member of our
department and people are taking this as hard as the people in the sheriff’s office.” The Defendant argues that the
prosecutor’s office violated the appearance of fairness doctrine.
The appearance of fairness doctrine, however, only applies to judicial and quasi-judicial decisionmakers. The doctrine
seeks to prevent “the evil of a biased or potentially interested judge or quasi-judicial decisionmaker.” This doctrine not
only requires the judge to be impartial but “ ‘it also requires that the judge appear to be impartial.’” The Defendant asserts
that the doctrine applies to prosecutors based on a line of cases out of the Washington Courts of Appeals. The Courts of
Appeals have applied the appearance of fairness doctrine to prosecutors to the extent that they act in a quasi-judicial
capacity in determining what charges to file and whether or not to plea bargain.
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This court, in Carrick v. Locke, 125 Wash.2d 129, 143 n. 8, 882 P.2d 173 (1994), however, found that the appearance of
fairness doctrine did not apply to the prosecutor in that case. In Carrick, the court found the separation of powers doctrine
was not violated where the coroner’s statute and executive order permitted a district court judge to preside over an inquest
for any death for which a King County law enforcement agent may be responsible. In this context, the court rejected an
appearance of fairness challenge to the prosecutor’s participation in the inquest, finding that the “ ‘appearance of fairness
doctrine is directed at the ... potentially interested judge or quasi-judicial decisionmaker.’ “The court explained that “[t]he
prosecutor is not the decision maker at the inquest, so there can be no appearance of fairness challenge to his or her
involvement.”
The Defendant attempts to distinguish Carrick, arguing that it is limited to the facts of the case, and that the doctrine
applies to a prosecutor’s decision to bringing charges, including whether to seek the death penalty. Our decision in
Carrick, however, was not so limited.
Whether a decision is quasi-judicial in nature depends on whether the decision was adjudicatory in nature. The State
correctly argues that the prosecutor’s decision whether to file charges or to plea bargain is an executive, not adjudicatory,
decision. This court has never recognized a prosecutor’s discretion to file charges or to seek the death penalty as a judicial
function. A prosecutor need not hold a public hearing before deciding whether to file charges; “[t]he decision to prosecute
[is] based on the prosecutor’s ability to meet the proof required by the statute.” Additionally, this court has emphasized that
when making the determination to seek the death penalty “[t]he prosecutor does not determine the sentence; the prosecutor
merely determines whether sufficient evidence exists to take the issue of mitigation to the jury.” The jury or the judge
makes the determination of guilt and the appropriate sentence, not the prosecutor.
Moreover, the Supreme Court has held that “rigid requirements ... designed for officials performing judicial or quasijudicial functions, are not applicable to those acting in a prosecutorial or plaintiff-like capacity.” Marshall v. Jerrico, Inc.,
446 U.S. 238, 248, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980). The Court observed that, unlike judges, “[p]rosecutors need
not be entirely ‘neutral and detached,’ “ and may be rewarded for initiating and carrying out prosecutions in the name of
the people. As such, they “are necessarily permitted to be zealous in their enforcement of the law.” Although the
constitution prevents prosecutors from making decisions that are “motivated by improper factors or ... contrary to law....
[T]he strict requirements of neutrality cannot be the same for ... prosecutors as for judges....”
The evils the appearance of fairness doctrine seek to prevent are not implicated in this case because a prosecutor is not a
quasi-judicial decisionmaker. A prosecutor’s determination to file charges, to seek the death penalty or to plea bargain are
executive, not adjudicatory, in nature and therefore the doctrine does not apply.
Effective Screening — The “Chinese Wall”
Stenger, 111 Wn.2d at 522, and Tolias, 84 Wn.App. at 702, noted that a prosecuting attorney might
well screen himself or herself from the prosecution and thus make it unnecessary to disqualify the entire
office. The creation of a “Chinese Wall” between the prosecuting attorney or deputy prosecuting attorney
who has a conflict should suffice so long as RPC 1.10(b) is satisfied.
Significantly, it should be noted that RPC 1.10 does not require that the former client consent to the
erection of the “Chinese Wall”, nor does RPC 1.10 give a former client a veto power over the decision to
screen the disqualified attorney instead of transferring the case to another firm. Such a veto power would
run afoul of the rule that an accused does not have the right to choose his or her prosecutor. State v. Cook,
84 Wn.2d 342, 350, 525 P.2d 761 (1974).
That Alabama State Bar Association agrees that an entire prosecutor’s office is not vicariously
disqualified due to a single deputy prosecutor’s conflict (based upon representation of the defendant in the
pending case) if adequate “Chinese Wall” screening is accomplished. See Alabama State Bar Association
Opinion No. 1994-10 [<www.alabar.org.>, OGC button, visited April 27, 2003]—
District attorney (and assistants) not vicariously disqualified even though newly employed assistant has participated in
criminal cases as defense counsel so long as new assistant is adequately "screened" from participation
QUESTION:
"I am writing in response to a written ethical inquiry from you dated August 23, 1994. I am doing this for a clarification of
one of the prior decisions submitted in the letter particularly RO-9O-57. I would especially like to address Issue One and
Two in the opinion with regard to the principle of 'vicarious disqualification.' I notice that under these rulings the Code of
Professional Responsibility disqualified subsequent associate attorneys from participation in any cause in which the new
associate had previously participated.
I also note the decision in Issue Two states that if this decision was revisited under the 'new' rules it would probably be
addressed in a 'different fashion.'
Reviewing the new rules particularly Rule 1.11(c)(1) which is footnoted to the fact that 'Paragraph (c) does not disqualify
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other lawyers in the agency with which the lawyer in question has become associated.'
Probably more simply stated, the issues would be:
1. Are District Attorneys and Assistant District Attorneys disqualified from participation in pending criminal cases by the
principle of vicarious disqualification when the newly employed assistant has participated in the pending criminal case as a
defense attorney?
2. Are District Attorneys and Assistant District Attorneys disqualified from participation in pending criminal cases by the
principle of vicarious disqualification when the newly employed assistant has participated in a pending criminal matter
through previous representation of a co-conspirator?
3. Are District Attorneys and Assistant District Attorneys disqualified from participation in pending criminal cases by the
principle of vicarious disqualification when the newly employed assistant has participated in a pending criminal case
through previous representation of an alleged co-conspirator who is a husband or wife of the subject case?"
ANSWER QUESTION ONE:
District Attorneys and Assistant District Attorneys are not vicariously disqualified pursuant to Rule 1.11, Alabama Rules of
Professional Conduct when a newly employed assistant has participated in criminal cases as a defense attorney so long as
the "new" attorney is adequately" screened" from participation in the governmental activity.
ANSWER QUESTION TWO:
Same as Answer One, above.
ANSWER QUESTION THREE:
Same as Answer One, above.
DISCUSSION:
The Disciplinary Commission previously issued formal opinion RO-90-57 which dealt with similar issues proposed in the
instant inquiry. The Disciplinary Commission determined in that matter that the determination reached therein might be
different if the Supreme Court of Alabama adopted the Model Rules of Professional Conduct. On January 1, 1991, the
Supreme Court's order adopting the Model Rules effectively established the new standard by which vicarious
disqualification of governmental and private attorneys would be determined.
Rule 1.11(c)(1), Alabama Rules of Professional Conduct, states as follows:
"Rule 1.11 Successive Government and Private Employment * * * (c) Except as law may otherwise expressly permit, a
lawyer serving as a public officer or employee shall not: (1) Participate in a matter in which the lawyer participated
personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one
is, or by lawful delegation may be authorized to act in the lawyer's stead in the matter;...."
The pertinent provision of the Comment states:
"Paragraph (c) does not disqualify other lawyers in the agency with which the lawyer in question has become associated."
Further, Hazard and Hodes, in their treatise The Law of Lawyering, state:
"When a lawyer moves into the government from private practice, he is still bound by Rules 1.6 and 1.9. He may not
divulge any information about a former client and may not oppose the client in a matter in which he had previously
represented him, or in a matter substantially related thereto. This bar can be lifted only by the consent of the former client.
On the other hand, imputed disqualification of the government, treating it as a new 'firm' under Rule 1.10, is inappropriate.
If Rule 1.10(a) were to apply to the government, the government would either have to forego certain enforcement matters,
or hire lawyers who had never been in private practice, or who had represented only clients who would never be adverse to
the governmentalunit hiring the lawyer.
The only practical escape from this dilemma is to screen the affected lawyer from participation in government activity that
is adverse to his former clients and related to work that he performed for them; Rule 1.11(c)(1) so directs." §1.11:400.
Further, the Supreme Court of Alabama, in a footnote to its opinion in Roberts v. Hutchins, 572 So.2d 1231 (Ala. 1990),
affirms the availability of the "Chinese Wall" in certain cases involving the movement of lawyers between the government
and private law firms. 572 So.2d 1234, n.3.
Based on the foregoing, it is the opinion of the Disciplinary Commission that an effective application of the "Chinese
Wall" to the newly employed assistant would allow the District Attorney and other Assistant District Attorneys to
participate in pending criminal cases even though the newly employed Assistant had represented a co-conspirator of a
pending case, specifically, husband and wife co-conspirators.
The new assistant would have to insure his compliance with Rules 1.6 and 1.9, Alabama Rules of Professional Conduct. He
could in no way participate in the pending criminal matters absent the consent of his client. The remaining members of the
District Attorney's Staff, employing the effective "Chinese Wall" concept, would not be vicariously disqualified from
further participation in the other pending criminal matter.
To the extent that RO-90-57 is inconsistent with the holding herein, that opinion is modified accordingly.
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Kitsap Prosecutor’s Office — Conflict of Interest Screening Process
When creation of a “Chinese Wall” is necessary, our office (1) stamps the outside of our office file
with the words “RESTRICTED FILE” in green ink; (2) places a florescent yellow sheet of paper listing the
restrictions in the appropriate file; the yellow sheet must always be kept as the top document in the file; and
(3) the disqualified prosecutor completes an affidavit evidencing the nature of the conflict and restriction,
with a copy filed with the court and served on the defendant and defense counsel. While Stenger does not
detail the specifics of the screening process, our office is confident [hopeful?] that these efforts will suffice.
Case Law — Defense Counsel Conflict of Interest — Duty of Court to Inquire
 In re Richardson, 100 Wn.2d 669, 677-79, 675 P.2d 209 (1983)(court commits reversible error if it
knows or reasonably should know of a particular conflict of interest on part of counsel into which it fails to
inquire; no prejudice need be shown, and rule is not limited to joint representation of codefendants, but
includes representation of both defendant and witness) —
First, a trial court commits reversible error if it knows or reasonably should know of a particular conflict into which it
fails to inquire. Second, reversal is always necessary where a defendant shows an actual conflict of interest adversely
affecting his lawyer’s performance. In neither situation need prejudice be shown.
The application of these rules is not limited to joint representation of codefendants. While most of the cases have
involved that fact situation, the rules apply to any situation where defense counsel represents conflicting interests. See,
e.g., [Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981)], 101 S.Ct. at 1100 (defense counsel paid by
defendant’s employer); [Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)], 100 S.Ct. at 1712
(representation of codefendants in separate trials); Alexander v. Housewright, 667 F.2d 556, 558 (8th Cir. 1981) (previous
representation of prosecution witness in action against defendant); Stephens v. United States, 595 F.2d 1066, 1070 (5th
Cir. 1979) (simultaneous representation of prosecution witness and defendant); Castillo v. Estelle, 504 F.2d 1243, 1245
(5th Cir. 1974) (simultaneous representation of defendant in criminal trial and prosecution witness in unrelated civil
litigation). That simultaneous representation of a defendant and a witness with opposing interests is such a situation is
self-evident--indeed, we only recently suspended an attorney from the practice of law for placing himself in a virtually
identical situation. See In re McMurray, 99 Wn.2d 920, 665 P.2d 1352 (1983) (violation of DR 5-105 to represent
defendant after prior representation of prosecution witness in unrelated civil proceeding).
In the present case, the trial court had a duty to inquire into the possibility of conflict. Mr. Clemmer stated in open court
that Mr. Richardson’s attorney was also his. The court itself recognized the danger of conflict arising from this joint
representation, as is demonstrated by its proper refusal to allow Mr. Richardson’s attorney to advise Mr. Clemmer about
his testimony.
Yet the court made no further inquiry into this apparent conflict despite the fact that Mr. Richardson’s attorney
completely dropped his line of questioning about the alleged skimming by Mr. Blackwood. Indeed, the court affirmatively
cut off Mr. Clemmer’s explanation of his relationship with defense counsel. To paraphrase the Supreme Court: “The
possibility of the [conflict of interest] was brought home to the court, but instead of jealously guarding [Mr. Richardson’s]
rights, the court may fairly be said to be responsible for creating a situation which resulted in the impairment of those
rights.” Glasser v. United States, 315 U.S. 60, 71, 62 S.Ct. 457, 465, 86 L.Ed. 680 (1942). While the court’s action in the
present case may be more accurately characterized as benign neglect, it still falls far short of the active protection required
by Holloway, Sullivan, and Wood.
Unfortunately, because Mr. Clemmer was cut off by both defense counsel and the trial court, the record does not reveal
the precise nature of Mr. Clemmer’s relationship with defense counsel. This information is necessary to resolve the
present case, for the conflict of which the trial court reasonably should have known must also actually exist. See Wood, at
273, 101 S.Ct. at 1104 (remanding for hearing “to determine whether the conflict of interest that this record strongly
suggests actually existed”). Mr. Richardson has, however, established a prima facie case of error based on the record
before us.
[Note. The automatic reversal rule was rejected by the Supreme Court in Mickens v. Taylor, 535 U.S. 162,
122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), discussed infra.]
 State v. Hunsaker, 74 Wn.App. 38, 44-45, 873 P.2d 540 (Div. 1 1994) (appellate court adopts the more
demanding “factual context” test in analyzing conflict of interest issues; Held: trial court order prohibiting
prosecution witness from testifying reversed since defendant did not show how cross examination of
witness would involve confidences or secrets previously revealed to counsel as opposed to impeachment
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information obtained through discovery) —
If the patently clear test is applied, the court only considers whether the issues involved are identical or essentially the
same. Application of the factual contexts test is more painstaking. C. Wolfram, Modern Legal Ethics § 7.4.3 at 371
(1986). The court must consider whether the factual contexts of the two representations are similar or related. As the
court in Koch [v. Koch Indus., 798 F.Supp. 1525 (D.Kan. 1992)] explained:
[a] commonality of legal claims or issues is not required. At a functional level, the inquiry is whether “the
attorneys were trying to acquire information vitally related to the subject matter of the pending litigation.” To
accomplish this inquiry, the court must be able to reconstruct the attorney’s representation of the former client,
to infer what confidential information could have been imparted in that representation, and to decide whether
that information has any relevance to the attorney’s representation of the current client. What confidential
information could have been imparted involves considering what information and facts ought to have been or
would typically be disclosed in such a relationship. Consequently, the representations are substantially related
if they involve the same client and the matters or transactions in question are relevantly interconnected or reveal
the client’s pattern of conduct.
(Citations and footnote omitted.) Koch, 798 F.Supp. at 1536.
In Modern Legal Ethics, Professor Wolfram describes the applicable analysis as a three-stage inquiry.
First, the court reconstructs the scope of the facts involved in the former representation and projects the scope of
the facts that will be involved in the second representation. Second, the court assumes that the lawyer obtained
confidential client information about all facts within the scope of the former representation. Third, the court
then determines whether any factual matter in the former representation is so similar to any material factual
matter in the latter representation that a lawyer would consider it useful in advancing the interests of the client
in the latter representation.
(Footnotes omitted.) C. Wolfram, Modern Legal Ethics § 7.4.3 at 370 (1986).

State v. Robinson, 79 Wn.App. 386, 394, 902 P.2d 652 (Div. 1 1995) (joint representation) —
Joint representation is not a per se violation of the right to effective assistance of counsel. But if the defendant raises an
actual or potential conflict by objection at trial, the trial court errs when it fails “either to appoint separate counsel or to
take adequate steps to ascertain whether the risk was too remote to warrant separate counsel.” If no objection to joint
representation is raised until after trial, the presumption of prejudice does not arise unless the defendant is able to
demonstrate that “an actual conflict of interest adversely affected his lawyer’s performance.”
(Citations omitted.)
 State v. White, 80 Wn.App. 406, 410-11, 907 P.2d 310 (Div. 2 1995), review denied, 129 Wn.2d 1012,
917 P.2d 130 (1996) —
The Sixth Amendment affords a criminal defendant the right to effective assistance of counsel, free from conflicts of
interest. Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981); State v. Myers, 86 Wn.2d
419, 424, 545 P.2d 538 (1976). We review a challenge to the effective assistance of counsel de novo. Mannhalt v. Reed,
847 F.2d 576, 579 (9th Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 249 (1988).
An attorney’s conflict of interest may create reversible error in two situations without a showing of actual prejudice.
First, “reversal is always necessary where a defendant shows an actual conflict of interest adversely affecting his lawyer’s
performance.” In addition, a trial court commits reversible error if it “knows or reasonably should know of a particular
conflict into which it fails to inquire.” These general rules are applicable to any situation where a defendant alleges
ineffectiveness of counsel related to counsel’s representation of conflicting interests. Richardson.
 State v. Ramos, 83 Wn.App. 622, 629-30, 632-33, 922 P.2d 193 (Div. 1 1996) (trial court erred in
holding that public defender had conflict of interest solely due to counsel’s previous representation of a
witness) —
The determination of whether a conflict exists precluding continued representation of a client is a question of law and is
reviewed de novo. State v. Hunsaker, 74 Wn.App. 38, 41-42, 873 P.2d 540 (1994); Teja v. Saran, 68 Wn.App. 793, 796,
846 P.2d 1375, review denied, 122 Wn.2d 1008 (1993).
Under RPC 1.10, if one member of a law firm is precluded from representing a client by RPC 1.9, all of the members of
the firm are similarly precluded from representing the client. RPC 1.10; Hunsaker, 74 Wn.App. at 42 (citing State v.
Hatfield, 51 Wn.App. 408, 412, 754 P.2d 136 (1988)). Public Defender agencies are considered “law firms” for purposes
of application of the RPC. Hunsaker, 74 Wn.App. at 42.
In the present case, neither party contends that the PDA’s prior representation of Holdman on her theft charge is
substantially related to the current prosecution of Ramos for his alleged violation of the Uniform Controlled Substances
Act, and nothing in the record would support such a contention. Even if the matters were substantially related, the record
does not indicate that Ramos’ interests are “materially adverse” to Holdman’s. Compare the instant case with Hatfield, 51
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Wn.App. at 412 (holding that the defendant’s interests were adverse to those of defense counsel’s former client who was
called as State’s witness when both had an interest in blaming the other for the charged assault). Moreover, even if the
matters were substantially related and Ramos’s interests were adverse to those of Holdman, Holdman appeared in court
with her counsel and waived her attorney-client privilege arising from the previous representation. We conclude that
withdrawal and substitution was not warranted under RPC 1.9(a).
Because RPC 1.9(a) and (b) are written in the disjunctive, we next examine whether withdrawal was warranted under
RPC 1.9(b), i.e., whether the PDA’s continued representation of Ramos would have involved inquiry into confidences and
secrets relating to the prior representation of Holdman to Holdman’s disadvantage. Although Ramos successfully argued
below that the PDA’s continued representation of him would have involved such an inquiry, nothing in the record supports
this argument.
Here, the record fails to support Ramos’s claim that an actual conflict of interest existed. Moreover, even if the trial
court had conducted an adequate inquiry and an actual conflict had been shown, Holdman appeared in open court with her
counsel and affirmatively waived her attorney-client privilege. The privilege belongs to the client whose prior
representation gave rise to the conflict of interest. RPC 1.9; 1.6. Once Holdman waived the privilege, Ramos’s PDA
counsel was freed from any restraints on cross-examination of her which might otherwise have arisen based on the prior
representation. Ramos’s constitutional right to effective counsel was, therefore, not in jeopardy based on the prior
representation. That Ramos might have felt some lingering, subjective lack of confidence in his court-appointed counsel’s
undivided loyalty based on the prior representation does not change our analysis. An accused has the constitutional right to
effective assistance of counsel, not to a subjective sense of confidence in court-appointed counsel. Cf. State v. Sinclair, 46
Wn.App. 433, 436, 730 P.2d 742 (1986) (defendant’s failure to articulate anything more than general discomfort with
court-appointed counsel does not justify appointment of substitute counsel), review denied, 108 Wn.2d 1006 (1987). The
trial court erred by ordering the withdrawal and substitution of counsel on grounds that substitution was necessary to
preserve Ramos’s right to effective assistance of counsel.
 In re Stenson, 142 Wn.2d 710, 16 P.3d 1 (2001) (Conflicts between attorney and defendant over trial
stategy does not support application of conflict of interest concept.)
 State v. Santacruz-Hernandez, 109 Wn.App. 328, 40 P.3d 672 (Div. 1 2001), review denied, 146
Wn.2d 1019, 51 P.3d 88 (2002) (Day before trial, defense counsel learned the a confidential informant was
a former client. Prosecution said it would not call witness, so trial court denied defense motion for one day
continuance to collect and present evidence on conflict. Reversible error.)
[Note. Prosecutors should carefully tread when defense asserts conflict of interest due to possible
witness previously represented by counsel. It does not matter whether the state will call the witness since
the defense still has an obligation to investigate whether the witness is helpful to current client. As the
above reversed conviction so clearly shows, this investigation may not be possible due to the conflict.]
 United States v. Adelzo-Gonzalez, 268 F.3d 772 (9th Cir. 2001) (Error for trial court to not inquire into
irreconcilable conflict and breakdown in communication between counsel and defendant.) —
Carlos Adelzo-Gonzalez appeals his conviction following a plea of guilty to criminal charges of hostage taking,
transporting illegal aliens, and harboring illegal aliens. At issue is whether the district court abused its discretion in denying
Adelzo-Gonzalez's repeated requests for appointment of substitute counsel. We conclude that the district court did not
make an adequate inquiry and failed to recognize the material breakdown in trust and communication between defendant
and his court-appointed attorney. Despite clear indications of an irreconcilable conflict between defendant and his attorney,
the district court denied Adelzo-Gonzalez's requests for a new attorney on three occasions. *774 We hold that this was an
abuse of discretion and accordingly reverse and remand. …
We have consistently applied three factors in reviewing a district court's denial of a motion to substitute counsel: the
adequacy of the district court's inquiry, the extent of any conflict, and the timeliness of the motion. See United States v.
Musa, 220 F.3d 1096, 1102 (9th Cir.2000); United States v. Corona-Garcia, 210 F.3d 973, 976 (9th Cir.2000); United
States v. Walker, 915 F.2d 480, 483 (9th Cir.1990), called into question by United States v. Nordby, 225 F.3d 1053, 1059
(9th Cir.2000) (noting that "[o]ur existing precedent is overruled to the extent it is inconsistent with" Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). (We are sensitive to the fact that one panel cannot overrule
another.)
[Note. Prosecutors should make sure a trial court addresses all three factors listed above when a defendant
complains about trial counsel. And note that the focus is not on defense counsel’s competency or trial
court convenience, see United States v. Nguyen, 262 F.3d 998 (9th Cir. 2001), but the relationship between
counsel and defendant. Failure to do so will greatly increase the likelihood of appellate reversal and retrial.]
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 State v. Tjeerdsma, 104 Wn.App. 878, 17 P.3d 678 (Div. 1 2001) (Trial counsel was a municipal
prosecutor for Mount Vernon and key witnesses were city law enforcement officials. After trial but before
sentencing, trial counsel was appointed special deputy prosecutor in same county in which defendant was
prosecuted. Defendant declined court offer to be resentenced based on prosecutor’s concession that trial
counsel’s appointment as special deputy created conflict. Rejecting an automatic reversal rule,
conviction affirmed since defense failed to establish prejudice.)
 Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (Death penalty case
involving appointed counsel who had previously represented deceased victim on assault and weapons
charges. Held: Rejecting an automatic reversal standard, in order to demonstrate a Sixth Amendment
violation where the trial court fails to inquire into a potential conflict of interest about which it knew or
reasonably should have known, a defendant must establish that a conflict of interest adversely affected his
counsel's performance under Strickland standard.) —
Lest today's holding be misconstrued, we note that the only question presented was the effect of a trial court's failure to
inquire into a potential conflict upon the Sullivan rule that deficient performance of counsel must be shown. The case was
presented and argued on the assumption that (absent some exception for failure to inquire) Sullivan would be applicable-requiring a showing of defective performance, but not requiring in addition (as Strickland does in other ineffectiveness-ofcounsel cases), a showing of probable effect upon the outcome of trial. That assumption was not unreasonable in light of
the holdings of Courts of Appeals, which have applied Sullivan "unblinkingly" to "all kinds of alleged attorney ethical
conflicts," Beets v. Scott, 65 F.3d 1258, 1266 (C.A.5 1995) (en banc). They have invoked the Sullivan standard not only
when (as here) there is a conflict rooted in counsel's obligations to former clients, see, e.g., Perillo v. Johnson, 205 F.3d
775, 797-799 (C.A.5 2000); Freund v. Butterworth, 165 F.3d 839, 858-860 (C.A.11 1999); Mannhalt v. Reed, 847 F.2d
576, 580 (C.A.9 1988); United States v. Young, 644 F.2d 1008, 1013 (C.A.4 1981), but even when representation of the
defendant somehow implicates counsel's personal or financial interests, including a book deal, United States v. Hearst, 638
F.2d 1190, 1193 (C.A.9 1980), a job with the prosecutor's office, Garcia v. Bunnell, 33 F.3d 1193, 1194-1195, 1198, n. 4
(C.A.9 1994), the teaching of classes to Internal Revenue Service agents, United States v. Michaud, 925 F.2d 37, 40-42
(C.A.1 1991), a romantic "entanglement" with the prosecutor, Summerlin v. Stewart, 267 F.3d 926, 935-941 (C.A.9 2001),
or fear of antagonizing the trial judge, United States v. Sayan, 968 F.2d 55, 64-65 (C.A.D.C.1992).
 Campbell v. Rice, 302 F.3d 892 (9th Cir. 2002) (Prosecution of defense counsel at same time
counsel is representing defedant. Eighteen burglary counts and one attempted burglary. Defendant
retained attorney McCann. One month before defendant’s trial, McCann arrested for attempting to transport
meth through metal detector in county jail. Two days before defendant’s trial, McCann arraigned on meth
possession charge. The Santa Clara County DA’s office prosecuted both defendant and McCann. The first
day of defendant’s trial, the court met in chambers with McCann and DA, without defendant being present.
The judge explained to defendant that the meeting occurred because the DA wished to put something on the
record regarding McCann. The DA told the judge about the McCann charges, and that an offer had been
made to McCann similar to other drug defendants. The DA also noted the defendant’s right to conflict-free
counsel. McCann was given an opportunity to make a statement, and declined to do so. Conviction
affirmed based on Mickens since defense failed to show potential conflict adversely affected counsel’s
performance, but reversed due to due process violation in failure to have defendant present during inchambers hearing concerning conflict.) —
"Where a constitutional right to counsel exists,[the Supreme Court's] Sixth *897 Amendment cases hold that there is a
correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct.
1097, 67 L.Ed.2d 220 (1981). When a trial court is made aware of an attorney's actual or potential conflict of interest,
Supreme Court precedent requires that the trial court "either appoint separate counsel or ... take adequate steps to ascertain
whether the risk was too remote to warrant separate counsel." Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 55
L.Ed.2d 426 (1978). The trial court's failure to appoint separate counsel or inquire into the attorney's potential conflict of
interest amounts to a violation of the defendant's Sixth Amendment rights. See id.
Campbell has established that the trial court knew that a potential conflict of interest existed. Based on the
representations of the prosecutor at the in- chambers hearing, the trial court knew that defense counsel McCann was being
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PART I.
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prosecuted by the same district attorney's office that was prosecuting Campbell. Campbell has also shown that the trial
court neglected its duty to appoint separate counsel or inquire further into the nature of the conflict. The trial judge did not
ask McCann any questions concerning her ability to represent Campbell effectively while engaging in plea negotiations on
her own behalf and facing the possibility of prosecution by the district attorney. The only question that the court asked
McCann was whether she "wish[ed] to make any statement at this time." When McCann declined to make a statement, the
trial judge terminated the inquiry.
Even though the trial court knew of a potential conflict of interest and failed to make an inquiry, however, Campbell
cannot obtain relief unless he can show that his attorney's conflict of interest "adversely affected" her performance.
Mickens v. Taylor, --- U.S. ----, 122 S.Ct. 1237, 1245, 152 L.Ed.2d 291 (2002). Campbell argues that defense counsel
McCann's conflict of interest adversely affected her representation of Campbell because she failed to aggressively defend
Campbell in order to curry favor with the district attorney's office. Specifically, Campbell argues that McCann's conflict
resulted in her failure to: (1) challenge the admissibility of DNA evidence without a hearing; and (2) oppose the
prosecutor's motion to preclude Campbell from referencing other burglaries that occurred in the same geographical area as
the burglaries Campbell was charged with committing….
Campbell has not shown that the California Court of Appeal's analysis of the potential adverse effect of these actions was
an "objectively unreasonable" application *898 of Supreme Court law. Bell, 122 S.Ct. at 1852. We therefore affirm the
district court's denial of the writ on Campbell's conflict of interest claim….
The Supreme Court has held that "a defendant is guaranteed the right to be present at any stage of the criminal
proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." Kentucky v.
Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). If a defendant is denied his constitutional right to be
present during a critical stage of criminal proceedings, Supreme Court precedent requires us to evaluate the nature of the
error. Reversal is automatic if the defendant's absence constitutes a "structural error," that is, an error that permeates "[t]he
entire conduct of the trial from beginning to end," or "affect[s] the framework within which the trial proceeds." Arizona v.
Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). In contrast, we must conduct a harmless error
review if the defendant's absence constitutes a "trial error," that is, an error which "occurred during the presentation of the
case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to
determine whether its admission was harmless beyond a reasonable doubt." Id. at 307- 08, 111 S.Ct. 1246.
Having reviewed the governing Supreme Court precedents, and the facts of this case, we conclude that Campbell's due
process rights were violated when he was excluded from the in-chambers hearing in which defense counsel, the prosecutor,
and the judge discussed the conflict of interest raised by the felony prosecution of defense counsel by the same district
attorney's office that was prosecuting Campbell. As the Supreme Court has held, if defense *899 counsel's representation is
hampered by a conflict of interest, the integrity of the adversary system is cast into doubt because counsel cannot "play[ ]
the role necessary to ensure that the trial is fair." Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). Given that the right to conflict-free counsel must be preserved in order to "ensure that the trial is fair," id., the
in-chambers hearing held to determine whether Campbell's right to conflict-free counsel had been violated must have been
a critical stage of the criminal proceedings.
It is also clear that Campbell's presence at the in-chambers hearing "would [have] contribute[d] to the fairness of the
procedure." Stincer, 482 U.S. at 745, 107 S.Ct. 2658. No one was representing Campbell's interests at this critical hearing,
during which the trial judge considered whether defense counsel McCann could zealously defend Campbell against the
same district attorney's office that was prosecuting her. If Campbell had been present at this conference, or had the trial
court appointed another attorney to represent Campbell during this conference, Campbell or his appointed counsel could
have asked questions to more fully flush out the nature of McCann's conflict. Because Campbell was never informed of the
conflict, Campbell could neither assert his objections to McCann's continued representation or waive his right to conflictfree counsel. Accordingly, we conclude that Campbell's due process right to be present at the conference was violated….
Accordingly, we conclude that Campbell's exclusion from the conference at which the trial court considered defense
counsel's conflict of interest violated his due process right to be present at a critical stage of the criminal proceedings
because his presence "would [have] contribute[d] to the fairness of the procedure." Stincer, 482 U.S. at 745, 107 S.Ct.
2658. We also conclude that Campbell's absence from this conference amounted to a structural error, mandating a finding
of prejudice per se, because Campbell had an "active role to play" in the in-chambers hearing and because his exclusion
from the hearing compromised the integrity of the entire trial. Rice, 77 F.3d at 1141.
 State v. Vicuna, 119 Wn.App. 26, 79 P.3d 1 (Div. 1 2003), review denied, 152 Wn.2d 1008, 99 P.3d
896 (2004) (Trial court improperly permitted defense counsel to withdraw on eve of trial. But dismissal is
not required because an attorney may waive a client’s procedural speedy trial right even if the client
objects.) —
Vicuna contends that there was insufficient evidence that an actual conflict existed that required withdrawal and
substitution of counsel on the eve of trial. Thus, he argues, no continuance was required and his speedy trial rights were
violated.
A trial court has a duty to determine whether an actual conflict exists before it may grant a motion to withdraw and
substitute counsel. In re Richardson, 100 Wash.2d 669, 677, 675 P.2d 209 (1983). "The determination of whether a conflict
exists precluding continued representation of a client is a question of law and is reviewed de novo." *31 State v. Ramos, 83
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PART I.
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Wash.App. 622, 629, 922 P.2d 193 (1996). Rule of Professional Conduct 1.9(a) states that a lawyer who has previously
represented a client shall not thereafter "represent another person in the same or a substantially related matter in which that
person's interests are materially adverse to the interests of the former client[.]" But this conflict may be waived by the
former client in writing after consultation and full disclosure of the material facts. If one member of a law firm, including a
public defender agency, is precluded from representing a client due to a conflict of interest, then all members of that firm
are prohibited from representing that client. State v. Hunsaker, 74 Wash.App. 38, 42, 873 P.2d 540 (1994).
Review of three Court of Appeals decisions leads us to conclude that the trial court's inquiry here was insufficient to
determine whether an actual conflict existed. In Hunsaker, this court held that the trial court erroneously found a conflict
where the defendant's matter was not substantially related to that of a former client and defense counsel's **4 crossexamination of the former client would be based upon information obtained through discovery, not from the prior
representation. Hunsaker, 74 Wash.App. at 48, 873 P.2d 540. A similar situation was found in an earlier decision, State v.
Anderson, 42 Wash.App. 659, 713 P.2d 145 (1986), where a State witness had previously been represented by counsel
from the public defender's office. In Anderson, the trial court denied counsel's motion to withdraw, even though the
witness's testimony would reveal that he had been drinking in violation of probation conditions imposed in the prior matter.
This court affirmed after finding that the probation conditions were of public record and the cross-examination would
depend on facts discovered during trial preparation, not the prior representation. Anderson, 42 Wash.App. at 664, 713 P.2d
145. In addition, the witness had expressly waived his right to consult with an attorney and his privilege against selfincrimination. Anderson, 42 Wash.App. at 664, 713 P.2d 145.
Most recently, in State v. Ramos, 83 Wash.App. 622, 922 P.2d 193 (1996), the trial court granted defense counsel's *32
motion to withdraw on the eve of trial, which led to a continuance of the speedy trial date. This court, relying on Hunsaker,
reversed this decision after finding that there was no relationship between the witness's prior representation and the crime
charged against the defendant. Further, there was no evidence that cross- examination would involve "inquiry into
confidences or secrets acquired by PDA in its prior representation of her." Ramos, 83 Wash.App. at 632, 922 P.2d 193.
Moreover, as in Anderson, the witness had waived her right against self-incrimination and attorney-client privilege.
Ramos, 83 Wash.App. at 629-30, 922 P.2d 193. The case was remanded to reinstate the charges, which had been dismissed
due to the trial court's erroneous finding of governmental mismanagement. Ramos, 83 Wash.App. at 636, 922 P.2d 193.
Hunsaker, Anderson, and Ramos clearly establish that prior representation of a witness does not automatically disqualify
counsel from proceeding with representation of a defendant in a trial where that witness will testify. In Vicuna's case, the
only evidence of a conflict was defense counsel's statement that "[i]t concerns the ability to be able to call witnesses who
Mr. Vicuna may need to be able to present his defense at the trial and the ability to do that." There was no indication
whether the conflict arose from a prior or current representation or whether the other client's representation was connected
to the facts or issues of defendant's case. This kind of information was critical to the decisions in Hunsaker, Anderson, and
Ramos, but it was completely absent here. Without it, we are unable to determine whether there was an actual conflict, and
we must necessarily conclude that the record was insufficient for the trial court to make that determination.
In reaching this conclusion, we are mindful of the State's argument that requiring more rigorous inquiry regarding an
alleged conflict could jeopardize attorney-client privilege and the defendant's constitutional rights to effective assistance of
counsel and to remain silent. These are legitimate concerns; however, they do not eliminate the trial court's *33 obligation
to make an informed decision--it is not sufficient to rely upon defense counsel's assertion that a conflict exists, even if
made in good faith. A number of options are available to assist the court in making a discrete inquiry. For instance, the
court may conduct an in camera review with a sealed record. The court may ask general questions such as whether the
witness is a current or prior client or whether the alleged conflict involves a related matter. Depending upon the responses,
the court may need to elicit additional details to allow it to make an independent judgment as to the existence of a conflict.
The court can also offer a brief recess to allow defense counsel to resolve the alleged conflict. Indeed, if this had been done
when Vicuna's attorney had suggested it, it might have been possible to resolve the conflict without a continuance. Taking
these additional steps will also minimize the risk of a wrongful denial of a motion to withdraw, which would give rise to an
ineffective assistance of counsel claim.
We therefore agree with Vicuna that the trial court's inquiry was insufficient to determine whether an actual conflict
existed. But **5 we disagree with his assertion that dismissal is required because his attorney negligently failed to disclose
the alleged conflict in a timely manner. On this record, there is no evidence of negligence.
 State v.Dhaliwal, 150 Wn.2d 559, 79 P.3d 432 (2003) (Held that defendant did not waive right to
conflict free attorney, but failed to show that conflict existed. Affirmed.) —
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall
enjoy the right ... to have the assistance of counsel for his defense." U.S. Const. amend. VI. This right includes the right to
the assistance of an attorney who is free from any conflict of interest in the case. Wood v. Georgia, 450 U.S. 261, 271, 101
S.Ct. 1097, 67 L.Ed.2d 220 (1981); State v. Davis, 141 Wash.2d 798, 860, 10 P.3d 977 (2000).
Dhaliwal argues that Salazar had a conflict of interest because he also represented some of the witnesses at Dhaliwal's trial
in other matters. Dhaliwal asserts that some of these witnesses had interests adverse to his and that Salazar's performance
was negatively affected by these conflicts of interest. The State, on the other hand, maintains *567 that Dhaliwal has not
shown that his attorney represented actual conflicting interests or that any such conflict adversely affected Salazar's
performance.
First, the State asserts that Dhaliwal waived his right to a conflict-free attorney. Even if an attorney has a conflict of
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interest, he or she may continue to represent the defendant if the defendant makes a voluntary, knowing, and intelligent
waiver. See Holloway v. Arkansas, 435 U.S. 475, 483 n. 5, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Because both Dhaliwal
and the trial court were aware of Salazar's representation of various witnesses, the State claims that the discussion between
Salazar, the court, and Dhaliwal about the potential conflict constituted a waiver of Dhaliwal's right to choose an attorney
free from conflict….
We agree that under Mickens reversal is not mandated when a trial court knows of a potential conflict but fails to inquire.
However, we disagree with the Court of Appeals' reformulation of the Mickens actual conflict rule. In Mickens, the Court
stated: " [T]he Sullivan standard is not properly read as requiring inquiry into actual conflict as something separate and
apart from adverse effect. An 'actual conflict,' for Sixth Amendment purposes, is a conflict of interest that adversely affects
counsel's performance." 535 U.S. at 172 n. 5, 122 S.Ct. 1237. The Court of Appeals, however, formulated a two-prong test
consisting of actual conflict and adverse effect. Consistent with Mickens, we hold that a defendant asserting a conflict of
interest on the part of his or her counsel need only show that a conflict adversely affected the attorney's performance to
show a violation of his or her Sixth Amendment right….
Under Mickens and Sullivan, the defendant bears the burden of proving that there was an actual conflict that adversely
affected his or her lawyer's performance. Mickens, 535 U.S. at 174, 122 S.Ct. 1237; Sullivan, 446 U.S. at 350, 100 S.Ct.
1708. Holding that the possibility of a conflict was not enough to warrant reversal of a conviction, the Sullivan Court
stated: "[U]ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the
constitutional predicate for his claim of ineffective assistance." Id. at 350, 100 S.Ct. 1708. Here, Dhaliwal has
demonstrated the possibility that his attorney was representing conflicting interests. However, he has failed to establish an
actual **440 conflict because he has not shown how Salazar's concurrent representation of the witnesses involved in the
shareholder action and his prior representation of Grewal affected Salazar's performance at trial.
As an alternative to reversal for a new trial, Dhaliwal urges that this case should be remanded for further inquiry into the
nature and effects of Salazar's various conflicts. The Court of Appeals was unpersuaded by this argument because it found
that Dhaliwal had shown neither a conflict of interest nor adverse consequences. Dhaliwal, 113 Wash.App. at 240, 53 P.3d
65. We likewise find insufficient evidence of an actual conflict to justify remand.
 State v. Varga, 151 Wn.2d 179, 86 P.3d 139 (2004) (Defendant’s dissatisfaction with attorney
insufficient basis to require appointment of new counsel.) —
Foy also claims that the trial court erred in refusing to appoint Foy new counsel and denying Foy's motion for a
continuance to find new counsel. However, "[a] defendant does not have an absolute, Sixth Amendment right to choose
any particular advocate." Stenson, 132 Wash.2d at 733, 940 P.2d 1239 (citing State v. DeWeese, 117 Wash.2d 369, 37576, 816 P.2d 1 (1991)). To justify appointment of new counsel, a defendant "must show good cause to warrant substitution
of counsel, such as a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between
the attorney and the defendant." Id. at 734, 940 P.2d 1239. Generally, a defendant's loss of confidence or trust in his
counsel is not sufficient reason to appoint new counsel. Id. (citing Johnston v. State, 497 So.2d 863, 868 (Fla.1986)). On
appeal, we review a trial court's decision to deny new court appointed counsel and motions for continuances for abuse of
discretion. See id. at 733-34, 940 P.2d 1239 (citing DeWeese, 117 Wash.2d at 376, 816 P.2d 1); see also State v.
Rosborough, 62 Wash.App. 341, 346, 814 P.2d 679 (1991).
Other than his own general dissatisfaction and distrust with counsel's performance, Foy fails to point to anything in the
record which would demonstrate that the trial court abused its discretion when it denied Foy's request for new counsel and
a continuance. Here, the trial court judge afforded Foy the opportunity to explain the reason for his dissatisfaction with
counsel. Foy's RP at 4-5. Moreover, the *201 trial court questioned Foy's counsel about the merits of Foy's complaint. Id.;
see Stenson, 132 Wash.2d at 737, 940 P.2d 1239 (holding that the trial court's denial of new court appointed counsel was
not abuse of discretion given that he considered the defendant's complaints and evaluated counsel's performance); see also
Rosborough, 62 Wash.App. at 347-48, 814 P.2d 679. In response, Foy's counsel stated that he had consulted with Foy
about trial tactics and advised Foy of his legal rights. Foy's RP at 5. Consequently, the record indicates that the trial court
considered the merits of Foy's requests and provides us with no evidence of abuse of discretion.
Case Law — Defense Counsel Conflict of Interest — Duty of Prosecutor to Notify
Court
 United States v. Iorizzo, 786 F.2d 52 (2nd Cir. 1985) (appellate court chastising prosecutor for merely
advising trial judge of potential conflict, and not also filing motion for disqualification).
 Mannhalt v. Reed, 847 F.2d 576, 583-84, cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 249
(9th Cir. 1988) (appellate court chastising prosecutor for not bringing potential conflict to the attention of
trial court and for not moving for disqualification of defense counsel).

United States v. Friedman, 854 F.2d 535, 572 (2nd Cir. 1988), cert. denied, 490 U.S. 1004, 109 S.Ct.
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1637, 104 L.Ed.2d 153 (1989) (prosecutor’s interest in avoiding conflicts that might place any conviction it
obtains at risk gives it standing to bring disqualification motions even if defendant wishes to privately
retain counsel).
Case Law — Defense Counsel Conflict of Interest — Counsel’s Waiver of AttorneyClient Privilege
 State v. Webbe, 122 Wn.App. 683, 94 P.3d 994 (Div. 1 2004) (Defense counsel considered testifying at
competency hearing, and thus submitted to prosecutors notes containing privileged matters without
defendant’s authority. Conviction affirmed.) —
The issues on appeal revolve solely around the consequences of Webbe's attorney's attempt to testify in the competency
proceedings. Webbe contends disclosure of Williams' notes breached attorney-client privilege and violated his Sixth
Amendment rights. He complains that the prosecutors violated his privilege, that the court failed to protect it, and that his
own counsel were ineffective in making an unauthorized waiver and then failing to disqualify the prosecutors afterwards.
A party's offer of his attorney's testimony as to a part of any communication to the attorney constitutes a waiver of the
privilege " 'as to the whole of that communication.' " [FN14] But an attorney may not be examined without the consent of
the client: "An attorney or counselor shall not, without the consent of his or her client, be examined as to any
communication made by the client to him or her, or his or her advice given thereon in the course of professional
employment." [FN15]
As Webbe forcefully points out, only he can waive his privilege; an attorney may not unilaterally waive privilege on behalf
of a client. [FN16] It is undisputed that Webbe did not *692 waive his privilege, and that his attorneys did not have
authority to do so on his behalf.
Webbe's first complaint on appeal, however, is that prosecutors violated his privilege, when "they convinced the judge to
order a disclosure of those conversations that neither the court nor Webbe's attorneys were authorized to make." [FN17]
Webbe argues that "the prosecutors had no right to violate the attorney--client privilege as a matter of **999 simple
discovery." [FN18] The essence of Webbe's argument is that the State should have obtained his waiver of privilege before
seeing the notes. Webbe further contends the court erred by ordering disclosure of the notes without first establishing that
Webbe had waived his privilege. Webbe points out that he was not present at some of the hearings where Williams'
testimony was discussed. While he assigns no error to this approach, [FN19] he suggests his absence heightened the
responsibility of the court and prosecutors to ensure that he had waived privilege.
This puts the shoe on the wrong foot. Ensuring that Webbe consented to their strategy was the responsibility of his counsel,
not the prosecutors or the court. RPC 1.6(a) states: "A lawyer shall not reveal confidences or secrets relating to
representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized
in order to carry out the representation." In the days leading up to the disclosure, the court repeatedly warned defense
counsel that their proposed course of action would result in a waiver of privilege, and gave them opportunities to evaluate
the consequences of their proposal. The premise for the decision to call Williams to testify was clearly set down by the
court: waiver would result. Even after the ruling that Williams could not testify *693 unless he disclosed his unredacted
notes, counsel chose to proceed.
Counsel thus surrendered Webbe's privilege by embarking upon a course of action requiring waiver, without ensuring their
client agreed with their strategy. This was outside their authority. But Webbe's complaint about the conduct of the
prosecutors is misplaced. Prosecutors were not in a position to ask questions of Webbe. Given the clear premise that the
defense strategy would result in waiver, prosecutors surely assumed counsel had obtained a valid waiver from their client.
The court presented Webbe's attorneys with a clear choice, and with time to confer and reflect. They repeatedly chose the
route that required waiver. Under the circumstances, it is not surprising that the court also assumed that defense counsel
had their client's consent.
As this case demonstrates, it will often be preferable for the court to ensure, on the record, that its assumptions are reliable.
Here, it would have been well for the court to have inquired of counsel, or perhaps (given the question of Webbe's
competency to waive) to have appointed a guardian ad litem, regardless of counsel's objections. [FN20] (Webbe does not
assign error to the court's failure to appoint a guardian ad litem. [FN21]) In the final analysis, however, the direct
responsibility for assuring that Webbe had consented to their strategy and agreed to waive privilege was that of his own
counsel. It was not error for the court to assume counsel had satisfied that obligation.
FN20. See RCW 4.08.060. The court has inherent authority to appoint a guardian ad litem for a civil litigant,
see In re Marriage of Blakely, 111 Wash.App. 351, 353, 44 P.3d 924 (2002), review denied, 148 Wash.2d 1003,
60 P.3d 1211 (2003), but competency to stand trial on criminal charges falls under the chapter governing the
criminally insane, chapter 10.77 RCW. The court's eventual approach here--appointing a guardian ad litem who
is an experienced criminal defense attorney, who therefore understands and can preserve privilege--seems to us
appropriate.
FN21. And any error in this regard was invited. See State v. Wakefield, 130 Wash.2d 464, 475, 925 P.2d 183
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(1996) (invited error doctrine prevents party who requested ruling at trial from complaining about that ruling on
appeal).
Neither the court nor the prosecutors erred in the events that resulted in unauthorized waiver of Webbe's attorney-client
privilege.
Kitsap Prosecutor’s Office — Sample Form — Waiver of Defense Counsel’s Conflict
of Interest
As the above authority indicates, prosecutors have a duty to notify the court of any potential conflict of
interest defense counsel may have in order to protect the defendant’s constitutional right to counsel. This
places the prosecutor in the unenviable position of seeking to remove a defense attorney from the case,
often over the defendant’s objection.
While the exact role of the prosecutor in such a situation is not completely defined by case law, our
office has the following pleading that we ask the court to discuss with any defendant who may seek to
waive a conflict of interest in defense counsel’s involvement in the case.
Do not forget that the potential witness who creates the conflict will need to waive the conflict as well
since failure to do so would still prohibit defense counsel from proceeding even if the defendant on trial is
willing to waive his or her portion of the conflict. Use of this pleading will ensure that a complete appellate
record is made should the defendant raise the issue on appeal —
Waiver By [Defendant full name] Of
Defense Counsel’s Conflict Of Interest
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of
Counsel for his defence.” The Sixth Amendment right to counsel is the right to representation that is free from conflicts of interest.
Wood v. Georgia, 450 U.S. 261, 271, 67 L.Ed.2d 220, 101 S.Ct. 1097, 1103 (1981).
In a criminal case, a defense counsel’s loyalty to his or her client can be compromised in a variety of ways. It has long been
recognized, for example, that when a defense attorney represents two or more jointly charged defendants, there is a significant risk
that the lawyer will be unable to adequately serve the interests of both defendants. A conflict of interest can arise in a criminal case
when a defense attorney is called upon to cross-examine another client or a former client.
An individual can voluntarily waive his or her right to conflict free representation, but there are potential dangers and disadvantages
of doing so. The following questions must be filled in so that the Court can determine that your decision to waive your right to
conflict free representation is knowingly made.
(1)
My true name is: ______________________________.
(2)
My age is: ___________________________________.
(3)
I went through the _____________________ grade.
(4)
Do you understand that you are charged with the crime of _______________________________________________________?
(5)
Do you understand that the maximum penalty for the crime of _____________________
_________________________________________ is ____ days in jail and/or a fine of $____________, plus restitution and
costs? ___________. Do you understand that a conviction for this crime may also have an impact upon your employment, your
right to bear arms, and other aspects of your life? ___________.
(6)
Do you understand that you have the right to representation by a lawyer and that if you cannot afford to pay for a lawyer, one
will be provided at no expense to you? ___________.
(7)
Do you understand that you have the right to representation by an attorney who has no conflicts of interest? ___________.
(8)
Do you understand that [ATTORNEY NAME] has been retained/appointed to represent you? ___________.
(9)
Do you understand that [ATTORNEY NAME] has also been retained/appointed to represent other individuals, specifically by
[WITNESS] who have been charged with similar crimes arising from the same incident? ___________.
=modify as needed depending on conflict raised=
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PART I.
GENERAL STANDARDS
(10) Do you realize that any confidences or secrets that [WITNESS] provides to [ATTORNEY NAME] cannot be disclosed by [ATTORNEY
NAME] without [WITNESS]’S permission? ___________. RPC 1.6. “‘Confidence’ refers to information protected by the attorneyclient privilege under applicable law, and ‘secret’ refers to other information gained in the professional relationship that the
client has requested be held inviolate or the disclosure of which would be embarrassing or would likely to be detrimental to the
client.” RPC 1.1.
(11) Do you realize that even after an attorney/client relationship is ended that the attorney still has a duty to not “[u]se confidences
or secrets relating to the representation to the disadvantage of the former client”, RPC 1.9(b), without the client's permission?
___________.
(12) Do you realize that [ATTORNEY NAME] might receive information from one of the other participants in the crime that might
benefit your case but that [ATTORNEY NAME] cannot reveal to the court or the prosecution during plea negotiations or trial
without the other participant's permission because of [ATTORNEY NAME]’S duty of loyalty to the other participant? ___________.
(13) Do you realize that [ATTORNEY NAME] might receive a plea offer from the Prosecution with regard to you or any other
participant to the offense that might provide a tangible benefit in exchange for testimony at trial and that [ATTORNEY NAME]
might not be able to help you or the other participants properly evaluate such an offer because of his duty of loyalty to his other
clients? ___________.
(14) Do you realize that any attorney who represents you will be entitled to cross-examine all of the witnesses for the Prosecution,
including any of the other participants to the crime, regarding their testimony, their credibility, and their biases? ___________.
(15) Do you realize that “[i]t is … improper for counsel to represent a defendant where he also represents, or has represented, a
witness for the prosecution”, 3 C. Torcia, Wharton’s Criminal Procedure § 372 at 386-403 (13th ed. 1991), because defense
counsel’s ability to cross-examine the witness might be impaired by defense counsel’s duty of loyalty to the former witness?
___________.
(16) Do you realize that if you waive [ATTORNEY NAME]’S conflict of interest that arises from his or her representation of [WITNESS]
that, if convicted, you will not be able to claim on direct appeal, in a state collateral attack, or in a federal habeas corpus
proceeding that [ATTORNEY NAME] provided you with ineffective assistance of counsel because of the conflict? ___________.
(17) Do you realize that you have the right to consult with an attorney other than [ATTORNEY NAME] before deciding whether you
wish to waive your right to conflict free representation? ___________.Do you wish the court to provide you with outside
counsel? ___________.
(18) Did you have an adequate amount of time to discuss whether you should waive your right to conflict free representation with
[ATTORNEY NAME] and/or outside counsel? ___________.
(19) Has any one has threatened harm of any kind to you or to any other person to cause you to waive your right to conflict free
representation? ___________.
(20) Has any person made any promises of any kind to cause you to waive your right to conflict free representation? ___________.
(21) In your own words explain the disadvantages of waiving your right to conflict free representation _________________________
_______________________________________________________________________________________________________.
(22) In your own words explain why you wish to waive your right to conflict free representation _____________________________
_______________________________________________________________________________________________________.
(23) Do you have any questions you wish to ask the court before you decide whether to waive your right to conflict free
representation? ___________.
(24) Do you wish to waive the right to conflict free representation? ___________.
______________________________________
[FULL NAME]
I have read and discussed this form with the Defendant, [FULL NAME], and I believe that the Defendant is competent and fully
understands the consequences of waiving his or her right to conflict free representation.
______________________________________
[ATTORNEY NAME], WSBA NO. [attorney code]
Attorney for Defendant
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PART I.
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I have read and discussed this form with the Defendant, [FULL NAME], and I believe that the Defendant is competent and fully
understands the consequences of waiving his or her right to conflict free representation.
______________________________________
___________________, WSBA NO. ________
Independent Counsel for Defendant
The foregoing waiver was signed by the Defendant in open court in the presence of the Defendant’s lawyer and the undersigned
judge. The Defendant asserted that [check appropriate box]–
 The Defendant had previously read the entire statement above and that the he or she understood it in full; or
 The Defendant’s lawyer had previously read to him or her the entire statement above and that the Defendant understood it in full,
or
 The Defendant’s independent counsel had previously read to him or her the entire statement above and that the Defendant
understood it in full.
I find [FULL NAME]’S decision to waive his or her right to conflict free representation to be knowingly, intelligently and
voluntarily made. This finding is based upon the above written waiver and [FULL NAME]’S answers to my oral questions.
DONE IN OPEN COURT this __________ day of [server date month], [server date year].
______________________________________
JUDGE
Waiver By [Witness Full Name] Of
Defense Counsel’s Conflict Of Interest
An individual who has established an attorney/client relationship with a lawyer has a right to have any confidences or secrets
relating to the representation to be kept private and to not have any secrets or confidences used in a manner that would disadvantage
the individual after the attorney/client relationship has been concluded. An individual can voluntarily waive these rights, but there are
potential dangers and disadvantages of doing so. The following questions must be filled in so that the Court can determine that your
decision to waive the attorney/client privilege and the duty of loyalty conferred by the Rules of Professional Conduct (“RPC”) is
knowingly made.
(1)
What was the last grade of school you completed? _________.
(2)
Do you realize that attorney [ATTORNEY NAME] and/or other members of the [law firm] law firm represented you in the past in
_______________ v. [witness], __________ County __________ Court Cause No. __________ (Charge(s)–__________); [list
all]? ______
(3)
Do you realize that any confidences or secrets that you provided to attorney [ATTORNEY NAME] and/or other members of the
[law firm] law firm cannot be disclosed by them without your permission? ____________. RPC 1.6. “‘Confidence’ refers to
information protected by the attorney-client privilege under applicable law, and ‘secret’ refers to other information gained in the
professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or
would likely to be detrimental to the client.” RPC 1.1.
(4)
Do you realize that even after an attorney/client relationship is ended that the attorney still has a duty to not “[u]se confidences
or secrets relating to the representation to the disadvantage of the former client”, RPC 1.9(b), without the client’s permission?
__________
(5)
Do you realize that every lawyer who is a member of the [law firm] law firm owes you the same duty to not “[u]se confidences
or secrets relating to the representation to the disadvantage of the former client”, RPC 1.9(b), without your permission? RPC
1.10. _________
(6)
Do you realize that once you waive the attorney/client privilege and your attorney’s duty to not “[u]se confidences or secrets
relating to the representation to the disadvantage of the former client”, RPC 1.9(b), without your permission that you can never
reassert this privilege in this or any other court proceeding? ________
(7)
Do you realize that only you can waive the attorney/client privilege and the duty of loyalty owed to you by attorney [ATTORNEY
NAME] and/or other members of the [law firm] firm and that no one can force you to waive these valuable rights? _______
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PART I.
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(8)
Do you realize that you will be called as a witness by the Prosecution in [plaintiff’s name] v. [full name], [court name] Cause
No. [file number]? _____________.
(9)
Do you realize that the attorneys who represent [full name] will be entitled to cross-examine you regarding your testimony, your
credibility, and your biases? ________
(10) Do you realize that the attorneys who represent [full name], include [ATTORNEY NAME] and other members of the [law firm] law
firm? ________
(11) Do you realize that if you waive the attorney/client privilege and the duty of loyalty that [ATTORNEY NAME] and the other
members of the [law firm] law firm could use any secrets or confidences that you told [ATTORNEY NAME] and/or other members
of the [law firm] law firm during their cross-examination of you? _________
(12) Do you realize that if you decide not to waive the attorney/client privilege and the duty of loyalty that [ATTORNEY NAME] and the
other members of the [law firm] law firm owe to you that the State’s prosecution of [full name] will not end? _________
(13) Do you realize that if you decide not to waive the attorney/client privilege and the duty of loyalty that [ATTORNEY NAME] and the
other members of the [law firm] law firm owe to you that the court can appoint other competent counsel to represent [full
name]? _________
(14) Do you realize that you have the right to consult with an attorney before deciding whether you wish to waive the attorney/client
privilege and the duty of loyalty owed to you by [ATTORNEY NAME] and the other members of the [law firm] law firm?
__________
(15) Have you consulted with an attorney regarding whether you should waive the attorney/client privilege and duty of loyalty?
________ If so, who? ___________________
(16) Did you have an adequate amount of time to discuss whether you should waive that attorney/client privilege and duty of loyalty
owed to you by [ATTORNEY NAME] and the other members of the [law firm] law firm with this attorney? _________
(17) Has any one has threatened harm of any kind to you or to any other person to cause you to waive the attorney/client privilege
and the duty of loyalty owed to you by [ATTORNEY NAME] and the other members of the [law firm] law firm? __________
(18) Has any person made any promises of any kind to cause you to waive the attorney/client privilege and the duty of loyalty owed
to you by [ATTORNEY NAME] and the other members of the [law firm] law firm? __________
(19) Do you have any questions you wish to ask the court before you decide whether to waive the attorney/client privilege and the
duty of loyalty owed to you by [ATTORNEY NAME] and the other members of the [law firm] law firm? _________
(20) Do you wish to waive the attorney/client privilege and the duty of loyalty owed to you by [ATTORNEY NAME] and the other
members of the [law firm] law firm? ___________________.
______________________________________
[WITNESS]
I have read and discussed this form with [WITNESS] and I believe that he or she is competent and fully understands the consequences
of his or her decision.
______________________________________
____________________, WSBA NO. _____
Attorney for [Witness]
The foregoing waiver was signed by [WITNESS] in open court in the presence of [WITNESS]’S lawyer and the undersigned judge.
[WITNESS] asserted that [check appropriate box]–
 [WITNESS] had previously read the entire statement above and that he or she understood it in full; or
 [WITNESS]’S lawyer had previously read to [WITNESS] the entire statement above and that [WITNESS] understood it in full
I find [WITNESS]’S decision to [ waive] [ not waive] the attorney/client privilege and the duty of loyalty owed to [WITNESS]
by [ATTORNEY NAME] and the other members of their firm to be knowingly, intelligently and voluntarily made.
DONE IN OPEN COURT this __________ day of [server date month], [server date year].
______________________________________
JUDGE
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PART I.
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Case Law — Civil Conflicts
 Westerman v. Cary, 125 Wn.2d 277, 892 P.2d 1067 (1994). A public defender challenged a district
court order requiring all domestic violence offenders to be detained in custody without bail pending their
first court appearance. The prosecutor advised the sheriff to disregard the order believing it would violate
arrestees’ constitutional rights and subject the county to liability. The prosecutor advised the district court
he would not defend the order. The district court concluded that the prosecutor’s representation of the
sheriff created a conflict of interest and hired outside independent counsel to represent the district court.
The prosecutor appeared and represented the district court, yet continued to represent the sheriff’s actions
in failing to follow the district court order. The prosecutor advocated and maintained a position directly
contradictory to the district court’s order, stating that the order was unconstitutional. Ultimately, the
superior court appointed a special prosecutor to represent the district court pursuant to RCW 36.27.030.
Held, 125 Wn.2d at 298-302, that prosecutor had a conflict of interest where representation of two
different public bodies requires the prosecutor to take directly adversary positions in the same case.
Superior court had authority under statute to appoint special prosecutor at public expense where the
prosecutor is disabled as a result of a conflict.
 Osborn v. Grant County, 130 Wn.2d 615, 926 P.2d 911 (1996). A county clerk sought a declaration
that county commissioners had no authority to withhold payment of wages to a temporary employee who
was on suspension from a district court job but hired by the clerk to work in the clerk’s office in a position
that had previously been budgeted for by the county commission. The clerk also sought the appointment of
a private law firm as a special prosecutor to represent her in the action because the prosecutor refused to
give advise to the clerk due to a potential conflict with the commissioners. The superior court granted the
clerk’s request, appointed a private law firm to represent the clerk, and awarded public monies to pay the
special prosecutor.
Held, 130 Wn.2d at 624-630, that while the prosecutor clearly had a conflict of interest in representing
the clerk in a position contrary to the commissioners, the Prosecutor has no duty to bring litigation on
behalf of a county officer against the county. Appointment of a special prosecutor was improper, so
superior court award of public monies for attorney’s fees reversed.
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Standard 3-1.4 Public Statements
(a) A prosecutor should not make or authorize the making of an extrajudicial statement that a reasonable person would
expect to be disseminated by means of public communication if the prosecutor knows or reasonably should know that it
will have a substantial likelihood of prejudicing a criminal proceeding.
(b) A prosecutor should exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other
persons assisting or associated with the prosecutor from making an extrajudicial statement that the prosecutor would be
prohibited from making under this Standard.
Excerpt from Commentary to ABA Standard
“Fair Trial and Free Press Concerns. It is difficult to strike a balance between protecting the right to a fair trial and
safeguarding the right of free expression …”
“Reasonable Care with Respect to Actions of Others … It is not possible, of course, for a prosecutor who is nonetheless
acting ‘reasonably’ to always be in a position to prevent such unfortunate occurrences [of nonlawyer’s compliance with
Standard] … As prescribed by the National District Attorneys Association, National Prosecution Standard 35.1 (2nd ed.
1991): ‘The prosecutor should inform local law enforcement agencies of the state, court, constitutional and case law
provisions, as well as professional codes and standards, concerning fair trial and free press issues, and should encourage
them to adopt policies which will protect both the rights of the individual and the ability of the prosecution to proceed.’”
RPC 3.6 Trial Publicity
“A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of
public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of
materially prejudicing an adjudicative proceeding.”
Guidelines for Applying RPC 3.6
Statements which may potentially prejudice criminal proceedings
character, credibility, reputation or criminal record of suspect
possibility of a guilty plea, or the existence of confession, admission or statement given by suspect, or suspect’s refusal to
make statement
suspect’s performance or results of any examination or test such as a polygraph or laboratory test, or the failure to submit
to an examination or test
any opinion of guilt or innocence of a suspect
credibility or anticipated testimony of prospective witness
information this is likely inadmissible as evidence at trial
Permitted statements, without elaboration
general nature of charge or defense
information contained in the public record
scheduling of any stop in litigation
Permitted statements to inform public about threats to its safety
investigation in progress, including general scope, and except where prohibited by law the identify of persons involved
request for assistance in obtaining evidence
warning of danger where likelihood of substantial harm to individual or public
identity, residence, occupation and family status of accused
information necessary to aid in apprehension of accused
fact, time and place of arrest
identity of investigating and arresting officers or agencies, and the length of investigation
Bench–Bar–Press Committee Statement of Principles
For additional information, see the Bench–Bar–Press Committee Statement of Principles, Washington
Court Rules, p. 645 (2005).
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PART I.
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Standard 3-1.5 Duty to Respond to Misconduct
(a) Where a prosecutor knows that another person associated with the prosecutor's office is engaged in action, intends to act
or refuses to act in a manner that is a violation of a legal obligation to the prosecutor's office or a violation of law, the
prosecutor should follow the policies of the prosecutor's office concerning such matters. If such policies are unavailing or
do not exist, the prosecutor should ask the person to reconsider the action or inaction which is at issue if such a request is
aptly timed to prevent such misconduct and is otherwise feasible. If such a request for reconsideration is unavailing, inapt
or otherwise not feasible or if the seriousness of the matter so requires, the prosecutor should refer the matter to higher
authority in the prosecutor's office, including, if warranted by the seriousness of the matter, referral to the chief prosecutor.
(b) If, despite the prosecutor's efforts in accordance with section (a), the chief prosecutor insists upon action, or a refusal to
act, that is clearly a violation of law, the prosecutor may take further remedial action, including revealing the information
necessary to remedy this violation to other appropriate government officials not in the prosecutor's office.
Excerpt from Commentary to ABA Standard
“…Decisions made by a prosecutor’s supervisors concerning overall office policy and operations may be questioned, of
course, but should nonetheless ordinarily be followed by the prosecutor. In no event, however, should a prosecutor
participate or assist in the commission of illegal activity whatever the direction he or she may have received from a
supervisor …”
“Where a prosecutor has made every reasonable or feasible effort to remedy a problematic situation within the prosecution
office itself and has failed, it is appropriate for the prosecutor to take further action. Such further action includes going
outside of the prosecution office, e.g., reporting the misconduct to appropriate law enforcement officials …”
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FUNCTION
Standard 3-2.1 Prosecution Authority to be Vested in a Public Official
The prosecution function should be performed by a public prosecutor who is a lawyer subject to the standards of
professional conduct and discipline.
Excerpt from Commentary to ABA Standard
“The concept that the state has a special interest in the prosecution of criminal cases that requires the presence of a
professionally trained advocate arose during the formative period of American law …”
“In a few jurisdictions, a private party may institute criminal proceedings without the authorization or approval of the
prosecuting attorney. When a check is not provided by the participation of a public prosecutor, however, there is danger of
vindictive use of the criminal law process …”
“Private prosecution, as described above, should be distinguished from the process available in some jurisdictions whereby
a private citizen may file a complaint if the prosecutor refused to act. It is often argued that a private citizen should have
this right if the prosecutor refuses to proceed. Against this view, it is said that efficient prosecution requires the
participation of a trained prosecutor at the initial state of decisions on prosecution. This Standard is not intended to
discourage the adoption of a system under which a complainant may move for prosecution before a magistrate when a
prosecutor has declined to proceed, provided this right is limited to significant criminal conduct and provided that the
prosecution is conducted by a public prosecutor …”
Citizen Complaint — Kitsap Prosecutor’s Office Sample Memorandum
 See CrRLJ 2.1(c) for the process authorized under Washington law for a citizen to institute a criminal
non-felony action where the prosecuting authority has declined to proceed.
 It is our office’s position that CrRLJ 2.1(c) is a judicial usurpation of a legislative and executive
function, and accordingly violates the separation of powers doctrine. We have been successful in getting
citizen complaints dismissed by our District Court bench based on this argument. See Lorraine Kirtley,
Complaining Witness, v. Diane Frost, Carol Rainey, Michael Stowell, and Does 1-100, Potential
Defendants, Kitsap County District Court No. 980000004. The following memorandum of authorities
should be helpful—
The Citizen Complaint Rule is an Unconstitutional Usurpation by the Judicial Branch of the Executive Branch’s
Power to Decide Who Is or Is Not Charged With Violation of the Criminal Laws
CrRLJ 2.1(c)
CrRLJ 2.1(c), governing a request for citizen complaint, provides as follows in pertinent part–
(c) Citizen Complaints. Any person wishing to institute a criminal action alleging a misdemeanor or gross
misdemeanor shall appear before a judge empowered to commit persons charged with offenses against the
State, other than a judge pro tem. The judge may require the appearance to be made on the record, and under
oath. The judge may consider any allegations on the basis of an affidavit sworn to before the judge. The court
may also grant an opportunity at said hearing for evidence to be given by the county prosecuting attorney or
deputy, the potential defendant or attorney of record, law enforcement or other potential witnesses. The court
may also require the presence of other potential witnesses.
In addition to probable cause, the court may consider:
(1) Whether an unsuccessful prosecution will subject the State to costs or damage claims under RCW
9A.16.110, or other civil proceedings;
(2) Whether the complainant has adequate recourse under laws governing small claims suits, antiharassment petitions or other civil actions;
(3)
Whether a criminal investigation is pending;
(4)
Whether other criminal charges could be disrupted by allowing the citizen complaint to be filed;
1-
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PART II.
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ORGANIZATION OF THE PROSECUTION FUNCTION
The availability of witnesses at trial;
(6) The criminal record of the complainant, potential defendant and potential witnesses, and whether
any have been convicted of crimes of dishonesty as defined by ER 609; and
(7)
Prosecution standards under RCW 9.94A.440.
If the judge is satisfied that probable cause exists, and factors (1) through (7) justify filing charges, and
that the complaining witness is aware of the gravity of initiating a criminal complaint, of the necessity of a court
appearance or appearances for himself or herself and witnesses, of the possible liability for false arrest and of
the consequences of perjury, the judge may authorize the citizen to sign and file a complaint in the form
prescribed in CrRLJ 2.1(a). The affidavit may be in substantially the following form…
The Separation of Powers Doctrine
Washington’s constitution, much like the federal constitution, does not contain a formal separation of powers clause.
Carrick v. Locke, 125 Wn.2d 129, 134-35, 882 P.2d 173 (1994).
One of the fundamental principals of the American constitutional system is that the governmental powers
are divided among three departments-the legislative, the executive, and the judicial-and that each is separate
from the other.
State v. Osloond, 60 Wn.App. 584, 587, 805 P.2d 263, review denied, 116 Wn.2d 1030 (1991).
The very division of our government into different branches has been presumed throughout our state’s history to give
rise to a vital separation of powers doctrine. Carrick, 125 Wn.2d at 135.
The validity of this doctrine does not depend on the branches of government being hermetically sealed off
from one another. The different branches must remain partially intertwined if for no other reason than to
maintain an effective system of checks and balances, as well as an effective government. The doctrine serves
mainly to ensure that the fundamental functions of each branch remain inviolate.
Carrick, 125 Wn.2d at 135. (Citations omitted.)
The separation of powers doctrine will rarely offer a definitive boundary beyond which one branch may not tread, and is
grounded in flexibility and practicality. Carrick, supra.
The question to be asked is not whether two branches of government engage in coinciding activities, but
rather whether the activity of one branch threatens the independence or integrity or invades the prerogatives of
another.
Zylstra v. Piva, 85 Wn.2d 743, 750, 539 P.2d 823 (1975). “[T]he constitution, at least as a per se matter, does not forbid
judges to wear two hats; it merely forbids them to wear both hats at the same time.” Minstretta v. United States, 448 U.S.
361, 404, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).
The Carrick court noted the judiciary’s paramount concern regarding separation of powers challenges to judicial action by
quoting MinstrettaIn cases specifically involving the Judicial Branch, we have expressed our vigilance against two dangers:
first, that the Judicial Branch neither be assigned nor allowed “tasks that are more properly accomplished by
[other] branches,” and, second, that no provision of law “impermissibly threatens the institutional integrity of
the Judicial Branch.”
Mistretta, 488 U.S. at 383. (Citations omitted.)
Is the Charging Function of CrRLJ 3.1(c) More Properly Accomplished by Another Branch of Government?
Our Supreme Court recently discussed the separation of powers doctrine in State v. Wadsworth, 139 Wn.2d 724, 735,
991 P.2d 80 (2000) (quoting from State v. Blilie, 132 Wn.2d 484, 489, 939 P.2d 691 (1997))“The separation of powers doctrine is not specifically enunciated in either the Washington or federal
constitutions, but is universally recognized as deriving from the tripartite system of government established in
both constitutions. See, e.g., WASH. CONST. arts. II, III, and IV (establishing the legislative department, the
executive, and judiciary); U.S. CONST. arts. I, II, and III (defining legislative, executive, and judicial
branches);....When separation of powers challenges are raised involving different branches of state government,
only the state constitution is implicated....However, this court relies on federal principles regarding the
separation of powers doctrine in interpreting and applying the state’s separation of powers doctrine....”
In finding no violation of the separation of powers doctrine involving the local judiciary’s authority under statute to define
where in a courthouse weapons may be prohibited, the Wadsworth court noted the judiciary’s role in the administration of
justiceThis Court has recognized the inherent power and obligation of the judiciary to control all its necessary
functions to promote the effective administration of justice. We have stated that the inherent powers of the
courts are neither derived from nor dependent upon express constitutional authority, but the courts are
empowered to do all that is reasonably necessary for the efficient administration of justice. This Court has relied
upon the inherent powers doctrine in a variety of circumstances: to grant bail; to compel the production of
evidence and attendance of witnesses to prescribe rules for granting of bail on appeal; to regulate the practice
of law; and to adopt procedural rules for operation of the courts. Supreme Courts in other jurisdictions have
also relied upon the inherent powers doctrine as the basis for resolving issues concerning courthouse security
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PART II.
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and the general administration of court facilities.
Under the inherent powers of the courts, the judiciary has authority to administer justice and to ensure the
safety of court personnel, litigants and the public. …
Wadsworth, 139 Wn.2d at 740-41.
Significantly missing from the Wadsworth court’s list of judiciary powers is the power to authorize a citizen to charge
another with a criminal law violation.
As noted above, the separation of powers doctrine is not expressly set forth in either the United States or Washington
constitution, but is nonetheless considered a fundamental tenet of our political structure. In re Juvenile Director, 87 Wn.2d
232, 237-245, 552 P.2d 163 (1976) (lengthy historical discussion of separation of powers and checks and balances
doctrines).
The separation of powers doctrine has some different meanings depending upon context, but its core concern is with
protecting the powers and duties of the three branches of government. Although some small overlap can occur without
violating the doctrine, one branch of government cannot assume or exercise the power or duties of another branch, nor act
to deprive the others of their lawful powers. Id.; State Bar Association v. State, 125 Wn.2d 901, 907, 890 P.2d 1047
(1995); State v. Blilie, 132 Wn.2d 484, 939 P.2d 691 (1997). [Court rulings, including the common law as well as court
rules and regulations, are subject to constitutional challenges. Gusset v. Farmer’s Insurance, 133 Wn.2d 954, 975, 948
P.2d 1264 (1997).]
The criminal prosecution function is and has historically been an executive branch responsibility. The City Attorney,
[RCW 35.23.111 sets out a city attorney’s duties to represent the city in all actions brought by or against the city, and such
other duties as the city council by ordinance may direct. Bremerton Municipal Code 1.12.010(2) requires all criminal
violations of the Code to be charged by the City Prosecutor and processed in the Municipal Court. BMC 2.06.020(d)
authorizes the City Attorney to “[r]epresent the City in criminal prosecutions in Municipal Court and appellate courts.”
Pursuant to RCW 39.34, an interlocal cooperation agreement effective June 16, 1999 through June 15, 2004 authorizes the
Kitsap County Prosecutor’s Office to “provide legal services for the City of Bremerton for prosecution of municipal
criminal complaints and civil infractions.”] county Prosecuting Attorney and the state Attorney General are executive
officials. See, e.g., Wash. Const. Art. III, §1 (Attorney General is member of executive branch); State v. Campbell, 103
Wn.2d 1, 25-26, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985) (recognizing
prosecuting attorney as executive branch official); State ex rel. Schillberg v. Cascade District Court, 94 Wn.2d 772, 781782, 621 P.2d 115 (1980) (same); State v. Thorne, 129 Wn.2d 736, 762, 921 P.2d 514 (1996) (same). The courts, of
course, are members of the judicial branch of government. [BMC 2.62.010 establishes the Bremerton Municipal Court
pursuant to RCW 3.50. A municipal court has exclusive original criminal jurisdiction of all violations of city ordinances
duly adopted by the city in which the municipal court is located, as well as jurisdiction as conferred by statute pursuant to
RCW 3.50.020. In addition, Wash. Const. Art. XI § 11 authorizes counties, cities, towns and townships to make and
enforce within its limits all local police, sanitary and other regulations which are not in conflict with general laws.] Wash.
Const. Art. IV, §1.
The police have no authority to make prosecutorial decisions. The county prosecutor is charged with
prosecution of all criminal actions in which the state is a party. RCW 36.27.020(4). The decision whether to file
criminal charges is within the prosecutor’s discretion. State v. Judge, 100 Wn.2d 706, 713, 675 P.2d 219 (1984)
(citing Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 669, 54 L.Ed.2d 504 (1978)).
State v. Reed, 75 Wn.App. 742, 745-45, 879 P.2d 1000 (Div. 1 1994), review denied, 125 Wn.2d 1016 (1995) (defendant
had agreement with police to “drop charges” on some drug sales in return for his assistance in making narcotics arrests, but
arrests did not occur; Held: absent evidence of detrimental reliance, agreement is not enforceable to prohibit prosecutor
from filing charges).
The decision to file or not file charges, or the number of such charges, is a matter left to the discretion of the prosecuting
attorney. State v. Ammons, 105 Wn.2d 175, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93
L.Ed.2d 351 (1986); State v. Lewis, 115 Wn.2d 294, 797 P.2d 1141 (1990).
See also RCW 9.94A.440(1), wherein the Legislature provided recommended standards for prosecutors to consider when
deciding to decline to file criminal charges. This statute makes clear that the legislative branch believes the executive
branch is the appropriate branch for determining whether to charge a person with a criminal law violation. More
importantly herein is the legislative branch’s failure to include the judiciary in the decision whether criminal charges
should be filed. [RCW 3.50.430 provides-”All criminal prosecutions for the violation of a city ordinance shall be
conducted in the name of the city and may be upon the complaint of any person.” Significantly, this statute does not
delegate the criminal charging function to the judiciary. When read with other statutes and ordinances cited herein, the
clear intent of this statute is to allow the executive branch (through the prosecutor or city attorney) the discretion whether
to file criminal charges based upon the complaint of any person.]
The prosecutor is given “wide” discretion since he or she must necessarily consider both the strength of the case and the
public interest before making the charging decision. Bordenkircher v. Hayes, 434 U.S. 357, 54 L.Ed.2d 604, 98 S.Ct. 663
(1978); State v. Judge, 100 Wn.2d 706, 713, 675 P.2d 219 (1984).
The Constitution of this state authorizes the Legislature to establish the powers and duties of the county prosecutor.
Wash. Const. Art. XI § 5. It has responded by adopting chapter 36.27 RCW. One of the express duties imposed is to
“Prosecute all criminal and civil actions in which the state or county may be a party….” RCW 36.27.020(4) (emphasis
added). No legislation has been found that grants any portion of that power to the judiciary or to a private citizen of this
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state. [A territorial statute which survived until modern times authorized an indictment obtained by a “private prosecutor”
and also made the complainant liable for costs if maliciously brought. See former RCW 10.28.160; repealed by c. 67, 1971
ex. Sess., §20. The only case construing that statute arose after a jury acquitted the defendant, assessed costs against the
complaining witness, and then jailed him pending payment. In re Permstick, 3 Wash. 672, 29 Pac. 350 (1892).] The
Legislature however has seen fit to authorize another executive branch officer, the Attorney General, to seek criminal
prosecution in some instances. See RCW 43.10.232; RCW 10.01.190.
CrRLJ 2.1 violates the separation of powers doctrine on two levels. First, it appears that the judiciary, through its own
rule, is usurping the executive function of deciding whether to file and prosecute someone for a violation of the criminal
law, or is asserting that it can delegate that authority to a private citizen, who may or may not even be an attorney. This is
a clear invasion of executive authority. State v. Lewis, supra. The Legislature has not seen fit to give this power or
oversight to the judicial branch. The judiciary cannot assume this power on its own.
Second, if the court rule is interpreted to mean that the court can order the prosecutor’s office to act upon the newly filed
charge, it fails since the court has not been granted such authority by the Legislature, nor does it have inherent authority to
do so. Westerman v. Cary, 125 Wn.2d 277, 298, 885 P.2d 827 (1994); Ladenburg v. Campbell, 56 Wn.App. 701, 784 P.2d
1306 (Div. 2 1990) (district court judge had no power to appoint special prosecutor to handle case that prosecutor refused
to proceed with). Indeed, since the power to initiate charges is exclusively an executive one, the courts simply could not
claim such authority. State v. Lewis, supra (number and nature of charges left to the prosecuting attorney).
The policy argument that a judicial citizen review process is a necessary check on the prosecutor’s powers is one which
must be addressed to the Legislature, not the courts. See, e.g., Waggoner v. Ace Hardware, 134 Wn.2d 748, 755, 953 P.2d
88 (1998). To the extent such a check was seen as necessary, the Legislature has provided for the Attorney General to
intervene in appropriate criminal cases. RCW 43.10.232. The Legislature has not seen fit to give the courts that power.
[The Legislature knows how to do so when it desires, as can be seen in another statute dating from territorial days, RCW
10.16.110. There the Legislature empowered the superior court to direct a prosecutor to proceed with a case after an
indictment has been returned by a grand jury if the court is not satisfied with the prosecutor’s written reasons for refusing
to prosecute. The Legislature has not seen fit to create a similar check on the prosecutor’s decision not to file an
information or complaint.]
Conclusion
CrRLJ 2.1(c) is a judicial usurpation of a legislative branch decision to delegate to the executive branch the power to
decide who is or is not charged with violation of Bremerton’s and Washington’s criminal laws, and specifically conflicts
with our state constitution and legislation. Allowing or ordering the filing of criminal charges pursuant to CrRLJ 2.1(c) by
the judicial branch directly threatens the independence and integrity, and invades the prerogatives of the executive branch.
CrRLJ 2.1(c) is unconstitutional beyond a reasonable doubt [A statute or court rule is presumed to be constitutional, and
the party challenging it has the burden of establishing it is unconstitutional beyond a reasonable doubt. Wadsworth, 139
Wn.2d at 734. See also State v. Pelkey, 109 Wn.2d 484, 490, 745 P.2d 854 (1987) (court cannot sustain an interpretation of
a court rule which contravenes the constitution), and In re Discipline of Blauvelt, 115 Wn.2d 735, 741, 801 P.2d 235
(1990) (“When interpreting rules adopted by this court, the rules are approached as if drafted by the Legislature, and words
are given their ordinary meaning.”)] because it violates the separation of powers doctrine.
The City of Bremerton respectfully requests that this Court follow the Kitsap County District Court [See the attached
Findings of Fact and Conclusions of Law. Lorraine Kirtley v. Diane Frost, et. al, Kitsap County District Court No.
980000004] and find that CrRLJ 2.1(c) is unconstitutional beyond a reasonable doubt since it violates the separation of
powers doctrine, and deny Complainant’s request for charges.
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Standard 3-2.2 Interrelationship of Prosecution Offices Within a State
(a) Local authority and responsibility for prosecution is properly vested in a district, county, or city attorney. Wherever
possible, a unit of prosecution should be designed on the basis of population, caseload, and other relevant factors sufficient
to warrant at least one full-time prosecutor and the supporting staff necessary to effective prosecution.
(b) In some states, conditions such as geographical area and population may make it appropriate to create a statewide
system of prosecution in which the state attorney general is the chief prosecutor and the local prosecutors are deputies.
(c) In all states, there should be coordination of the prosecution policies of local prosecution offices to improve the
administration of justice and assure the maximum practicable uniformity in the enforcement of the criminal law throughout
the state. A state association of prosecutors should be established in each state.
(d) To the extent needed, a central pool of supporting resources and personnel, including laboratories, investigators,
accountants, special counsel, and other experts, should be maintained by the state government and should be available to
assist all local prosecutors.
Excerpt from Commentary to ABA Standard
“Basic Units of Prosecution … Familiarity with the community aids the prosecutor in gathering evidence, in allocating
resources to the various activities of the office, and in appraising the disposition appropriate to particular offenses and
offenders…”
“Statewide System. Some states have statewide systems of prosecution … The possibility of moving to a system of
statewide administration of the prosecution function should not be disregarded.”
“Statewide Coordination. Increased state coordination may provide the only means of overcoming the problems inherent in
local autonomy.… The recommendation for the establishment of a state association of prosecutors flows from the
successful experience with similar bodies in the judiciary (judicial councils and conferences) and from the prosecution
associations that now operate in several states. Each state should provide by statute for the establishment and adequate
funding of an association of all of its officials engaged in the function of prosecution, including local and state officials …”
“Prosecution Resources Pool … Few local prosecution offices can support, either in volume of activity or in financial
terms, the full complement of technical and professional experts necessary for effective investigation and prosecution
under modern conditions.…Counsel with experience in certain types of litigation…can also be provided by a state agency
to assist in local prosecutions where the local office does not have sufficient resources to develop specialized personnel in
these fields …”
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Standard 3-2.3 Assuring High Standards of Professional Skill
(a) The function of public prosecution requires highly developed professional skills. This objective can best be achieved by
promoting continuity of service and broad experience in all phases of the prosecution function.
(b) Wherever feasible, he offices of chief prosecutor and staff should be full-time occupations.
(c) Professional competence should be the basis for selection for prosecutorial office. Prosecutors should select their
personnel without regard to partisan political influence.
(d) Special efforts should be made to recruit qualified women and members of minority groups for prosecutorial office.
(e) In order to achieve the objective of professionalism and to encourage competent lawyers to accept such offices,
compensation for prosecutors and their staffs should be commensurate with the high responsibilities of the office and
comparable to the compensation of their peers in the private sector.
Excerpt from Commentary to ABA Standard
“Career Service … It is indeed true that a young lawyer can acquire significant trial experience in a relatively short period
of time in a prosecution office, but there is a limit to how much turnover of personnel is tolerable and consistent with
effective prosecution. The most efficient prosecution offices are built on career-type service … Some turnover at lower
levels of the staff is probably desirable in order to maintain a steady infusion of ‘new blood’ and new ideas and to supply a
source from which senior prosecutors can be promoted.”
“Full-Time Occupation … Apart from the issue of conflicts of interest, which raises ethical problems, there is a risk that
the part-time prosecutor will not give sufficient energy and attention to official duties. Since the part-time prosecutor’s
salary is a fixed amount and his or her total earnings depend on what can be derived from private practice, there is a
continuing temptation to give priority to private clients … The public interest requires that the practice of employing parttime prosecutors be eliminated wherever feasible…”
“Selection of the Prosecutor and Staff. Opinion has long been divided on the question of whether the office of prosecutor
should be appointive or elective … Whether the prosecutor is elected or appointed, the ultimate goal is to remove the office
from partisan politics. To do this requires the support and cooperation of the bar and political parties…”
“Affirmative Action. In the process of finding and selecting qualified assistants for the prosecutor’s office, the prosecutor
should be sensitive to the demographics of the community, including its particular racial, religious, and ethnic composition.
Such sensitivity should include making special efforts to recruit and to hire as prosecutors qualified women and members
of minority groups …”
“Compensation. The salaries of the chief and assistant prosecutors should befit the dignity, responsibility, and importance
of those positions. Salaries should be comparable to those paid for similar services in the private sector of the economy …
Under no circumstances should prosecutors be paid in part through fees on a case-by-case basis. It is clear that fee systems
of remuneration for prosecuting attorneys raise serious ethical and perhaps constitutional problems, and are totally
unacceptable.”
RCW 36.27.050 — Special emoluments prohibited
No prosecuting attorney shall receive any fee or reward from any person, on behalf of any prosecution, or for any of his
official services, except as provided in this title, nor shall he be engaged as attorney or counsel for any party in any action
depending upon the same facts involved in any criminal proceeding.
RCW 36.27.060 — Private practice prohibited in certain counties — Deputy
prosecutors
(1) The prosecuting attorney, and deputy prosecuting attorneys, of each county with a population of eighteen thousand or
more shall serve full time and except as otherwise provided for in this section shall not engage in the private practice of
law.
(2) Deputy prosecuting attorneys in a county with a population of from eighteen thousand to less than one hundred
twenty-five thousand may serve part time and engage in the private practice of law if the county legislative authority so
provides.
(3) Except as provided in subsection (4) of this section, nothing in this section prohibits a prosecuting attorney or deputy
prosecuting attorney in any county from:
(a)
Performing legal services for himself or herself or his or her immediate family; or
(b)
Performing legal services of a charitable nature.
(4) The legal services identified in subsection (3) of this section may not be performed if they would interfere with the
duties of a prosecuting attorney, or deputy prosecuting attorney and no services that are performed shall be deemed within
the scope of employment of a prosecutor or deputy prosecutor.
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Standard 3-2.4 Special Assistants, Investigative Resources, Experts
(a) Funds should be provided to enable a prosecutor to appoint special assistants from among the trial bar experienced in
criminal cases, as needed for the prosecution of a particular case or to assist generally.
(b) Funds should be provided to the prosecutor for the employment of a regular staff of professional investigative personnel
and other necessary supporting personnel, under the prosecutor's direct control, to the extent warranted by the
responsibilities and scope of the office; the prosecutor should also be provided with funds for the employment of qualified
experts as needed for particular cases.
Excerpt from Commentary to ABA Standard
“Special Assistant Prosecutors … The incidence of crime is not sufficiently predictable to permit reliable calculation of the
staff needs at every moment during the year. It is important that the prosecutor have flexibility in meeting this situation so
that the office is not forced to dispose of cases on a basis not fully compatible with the interests of the public merely
because of an unusually heavy workload. The employment of qualified assistants on an ad hoc basis is the best remedy for
the periodic ebb and flow of prosecution activity…”
“Investigative and Other Supporting Personnel and Experts … [T]he prosecutor may need to conduct investigations that the
police are unable or unwilling to undertake, such as investigations of public officials, including the police themselves …
[T]he prosecutor should be provided with independent professional investigative staff who are subject to his or her
supervision … In addition … a prosecution office, like any other law office, needs sufficient supporting personnel to
permit it to operate efficiently. There is no savings to the taxpayer if relatively highly paid professionals are forced to
perform stenographic and clerical duties because of a lack of secretarial personnel … The prosecutor must also be provided
with expert scientific assistance to keep pace with the need for effective investigation and prosecution of criminal
activities … just as they should be provided to public defenders’ offices.”
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Standard 3-2.5 Prosecutor's Handbook; Policy Guidelines and
Procedures
(a) Each prosecutor's office should develop a statement of (i) general policies to guide the exercise of prosecutorial
discretion and (ii) procedures of the office. The objectives of these policies as to discretion and procedures should be to
achieve a fair, efficient, and effective enforcement of the criminal law.
(b) In the interest of continuity and clarity, such statement of policies and procedures should be maintained in an office
handbook. This handbook should be available to the public, except for subject matters declared "confidential," when it is
reasonably believed that public access to their contents would adversely affect the prosecution function.
Excerpt from Commentary to ABA Standard
“Policy Guidelines … [T]he very process of articulating policies in itself contributes to the formulation of sound policies
by compelling consideration and evaluation of practices that may have outlived their usefulness …”
“Office Handbook. The articulation of policies and procedures should be preserved in a handbook or manual that also
reflects current rules, statutes, and judicial decisions … They serve to maintain consistent practices and continuity despite
changing personnel and tend to assure that policies adopted at the highest levels of the office are observed by the staff.
Perhaps of equal importance is the function of such a handbook as a teaching tool by which the accumulated experience of
many former or senior prosecutors is preserved and transmitted to newer assistants …”
Kitsap Prosecutor’s Office — Mission Statement & Standards and Guidelines
Our office, in conjunction with recommendations from a citizen’s advisory committee comprised of
pastors, crime victims, defense attorneys and other interested persons, and borrowing from guidelines
adopted by the Prosecutor’s Offices of King and Snohomish Counties, has developed a 23-page Mission
Statement and Standards and Guidelines. If you would like a copy, please contact me.
RCW 9.94A.401 et seq. — Recommended Prosecuting Standards
See also RCW 9.94.411 et seq. for state policy and charging guidelines.
See also 3-3.9 Discretion in the charging decision, supra.
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Standard 3-2.6 Training Programs
Training programs should be established within the prosecutor's office for new personnel and for continuing education of
the staff. Continuing education programs for prosecutors should be substantially expanded and public funds should be
provided to enable prosecutors to attend such programs.
Excerpt from Commentary to ABA Standard
“Even lawyers with extensive experience in the trial of civil cases must undergo new training and added education in
substantive criminal law and procedure before they can function effectively in the trial of a criminal case …”
“In addition, indoctrination of new staff in the professionalism expected of them as prosecutors and education in the
traditions and policies of the office are obviously essential …”
“Attendance at continuing legal education programs is also an essential part of a prosecutor’s professional training, as well
as a mandatory professional obligation in most states. Public funds should be provided to defray the expenses of
prosecutors attending such programs.”
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Standard 3-2.7 Relations With Police
(a) The prosecutor should provide legal advice to the police concerning police functions and duties in criminal matters.
(b) The prosecutor should cooperate with police in providing the services of the prosecutor's staff to aid in training police
in the performance of their function in accordance with law.
Excerpt from Commentary to ABA Standard
“Role as Legal Advisor. The necessity to develop methods of guidance to keep the police apprised of the meaning of new
provisions of law or court decisions that affect their duties and powers is apparent. To aid in meeting this need, the
prosecutor should endeavor to establish and maintain a relationship of mutual confidence and cooperation with the
police … Prosecutors should, however, take care to avoid relationships with the police that might cast doubt on the
independence and integrity of the office of the prosecutor …”
“Role in Police Training. Many of the problems that have plagued the police—and indeed the public—in recent years can
be traced to mistakes of the police, often entirely inadvertent, in carrying out such routine duties as securing warrants,
making arrests, executing warrants, interrogating persons in custody, and conducting lineups for identification purposes. It
is imperative that every police official, especially the police officer on the beat, be trained carefully as to the limits of
police authority and the applicability of exclusionary rules. This training cannot be casual or occasional but must be
carefully planned and presented …”
“This function of the prosecutor is so important that allowance must be made in the budget for whatever personnel are
required to perform effective police training …”
Case Law — RPC 4.2’s No Contact Prohibition with Represented Person Unless
Consent of Other Lawyer or “Lawyer is Authorized by Law to do so” — PreCharging
 Unites States v. Grass, 239 F.Supp.2d 535 (M.D. Penn. 2003) (Rite Aid’s former officers and directors
under investigation for fraud, securities violations, and obstruction of justice. Former president working
with government. Suspect Brown’s attorney agreed to government interview of client concerning certain
questions provided in advance by the government. Before meeting and after consultation with federal
prosecutors, former president and FBI agent met with and secretly recorded conversation with Brown. Held
that RPC 4.2 not violated by prosecutors because the prosecutors’ actions concerning non-custodial preindictment communications were “authorized by law.”) —
Rule 4.2 of the Pennsylvania Rules of Professional Conduct, also known as the "no-contact rule," prohibits an attorney
from communicating "about the subject of the representation with a party the lawyer knows to be represented by another
lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." Rule 8.4(a)
states that it is professional misconduct for an attorney to knowingly assist another in violating the rules of professional
conduct. Defendants argue that the tapes of the conversations between Noonan and Defendants must be suppressed because
AUSA Daniel violated Rule 4.2. According to Defendants, AUSA Daniel employed Noonan as his surrogate to
communicate with Defendants after AUSA Daniel knew that Defendants had retained counsel; thus, violating Rule 8.4(a).
In order to prevail on this motion, Defendants must demonstrate the following. First, AUSA Daniel violated Rule 4.2.
Second, Defendants were represented by counsel at the time the statements were elicited. Third, suppression is an
appropriate remedy for violation of the Rule. See United States v. Veksler, 62 F.3d 544, 548 (3d Cir.1995). …
With the exception of the Second Circuit, every other court of appeals that has considered the issue has similarly held that
the no-contact rule does not prevent non-custodial pre-indictment communications by undercover agents with represented
parties which occur in the course of legitimate criminal investigations. See United States v. Ryans, 903 F.2d 731, 739 (10th
Cir.1990) ("We agree with the majority of courts which have considered the question that [the no-contact rule] was not
intended to preclude undercover investigations of unindicted suspects merely because they have retained counsel."); United
States v. Sutton, 801 F.2d 1346, 1366 (D.C.Cir.1986) (citing United States v. Lemonakis, 485 F.2d 941, 956
(D.C.Cir.1973) ("Here, in the investigatory stage of the case, the contours of the "subject matter of the representation" by
appellants' attorneys, concerning which the code bars "communication," were less certain and thus even less susceptible to
the damage of "artful" legal questions the Code provisions appear designed in part to avoid.")); United States v. Dobbs, 711
F.2d 84, 86 (8th Cir.1983) ("Assuming that [the no-contact rule applies] ... it does not require government investigatory
agencies to refrain from any contact with a criminal suspect because he or she has retained counsel.... [The Government
agent's] noncustodial interview of Dobbs prior to the initiation of judicial proceedings against the appellant did not
constitute an ethical breach."). [FN5]
Moreover, such a reading is consistent with the intentions of the authors of the original no-contact rule. The commentary to
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American Bar Association Model Rule of Professional Responsibility 4.2 states the following:
Communications authorized by law also include constitutionally permissible investigative activities of lawyers
representing governmental entities, directly or through investigative agents, prior to the commencement of
criminal or civil enforcement proceedings, when there is an applicable judicial precedent that either has found
the activity permissible under this Rule or has found this Rule inapplicable. However, the Rule imposes ethical
restrictions that go beyond those imposed by constitutional provisions.
Model Code of Prof'l Conduct R. 4.2 cmt. 2 (1983).
Because there is caselaw indicating that AUSA Daniel's pre-indictment investigation was permitted pursuant to the nocontact rule, according to the commentary to the Model Rule, his conduct was "authorized by law" so long as it was
constitutionally permissible. Defendants do not contend that the Government's actions here violated their Fifth or Sixth
Amendment rights to have counsel present. Nor could they present a credible argument regarding either. Noonan's
interrogation, if any, did not take place in a custodial setting nor were Defendants compelled to speak to Noonan. Thus,
Defendants' Fifth Amendment right to counsel was not implicated. See Hoffa v. United States, 385 U.S. 293, 303-04, 87
S.Ct. 408, 17 L.Ed.2d 374 (1966) (holding that a "necessary element of compulsory self-incrimination is some kind of
compulsion"); Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (holding procedural
safeguards are necessary in order to use statements obtained from a criminal defendant during custodial interrogation).
Additionally, Noonan recorded the conversations with Defendants before the initiation of adversarial proceedings; placing
those contacts outside the scope of the Sixth Amendment right to counsel. United States v. Henry, 447 U.S. 264, 269, 100
S.Ct. 2183, 65 L.Ed.2d 115 (1980) (holding that the Sixth Amendment right to counsel attaches upon the initiation of the "
'critical stages' of the prosecution"). Nor is there any allegation that AUSA Daniel authorized Noonan to engage in more
egregious conduct which might constitute a due process violation. See, e.g., United States v. Twigg, 588 F.2d 373, 377-78
(3d Cir.1978) (finding violation of due process where law enforcement officials, in the context of an undercover drug
investigation, "conceived and contrived" the crime for which the defendant was convicted) Thus, because AUSA Daniel's
conduct did not violate Defendants' constitutional rights, in addition to the fact that there is a significant body of caselaw
indicating that such conduct is not prohibited by the no-contact rule, it must be that his conduct was "authorized by law."
Pa. R. Prof'l Conduct 4.2.
In support of their contention that AUSA Daniel violated Rule 4.2, Defendants rely primarily on the Second Circuit's
decision in United States v. Hammad, 858 F.2d 834 (2d Cir.1988). In that case--on facts somewhat similar to those in the
instant matter--the court initially rejected the Government's contention that the no-contact rule only applied to the same
extent as the Sixth Amendment right to counsel; i.e. only upon the initiation of formal legal proceedings. Id. at 839
("[W]ere we to construe the rule as dependent upon indictment, a government attorney could manipulate grand jury
proceedings to avoid its encumbrances."). Having determined that the no-contact rule applied to the Government attorney's
pre-*543 indictment conduct, the court went on to hold that, normally, the no-contact rule would not serve to prevent the
Government from using confidential informants to elicit incriminating statements from parties that the Government knows
to be represented by counsel. The court, however, went on to state the following:
Notwithstanding this holding, however, we recognized that in some instances a government prosecutor may
overstep the already broad powers of his office, and in doing so, violate the ethical precepts of [the no-contact
rule]. In the present case, for example, the prosecutor's use of a counterfeit grand jury subpoena, bearing the
purported seal of the district court and the false signature of the Clerk, was an improper and illegitimate
stratagem. We will not countenance such a misuse of the name and power of the court. The employment of a
specious and contrived subpoena is the sort of egregious misconduct that, even before the 6th amendment
protections attach, violates [the no-contact rule]....
Notwithstanding requests for a bright-line rule, we decline to list all possible situations that may violate [the nocontact rule].... As our holding above makes clear, however, use of informants by government prosecutors in a
pre-indictment, non-custodial situation, absent the type of egregious misconduct that occurred in this case, will
generally fall within the "authorized by law" exception to [the no-contact rule] and therefore will not be subject
to sanctions.
Id. at 839-40 (emphasis added).
Thus, it appears that the court, in Hammad, was more concerned with curbing prosecutorial skullduggeries than it was with
preventing the use of government informants to obtain incriminating statements from parties represented by counsel in the
pre-indictment non-custodial setting.
Defendants, however, argue that the no-contact rule bars the introduction of the Noonan tapes because "[t]he facts in
Hammad almost precisely parallel the facts of this case." (Defs. Br. in Sup. Mot. to Suppress Noonan Tapes at 16.) Like the
Government attorney in Hammad, AUSA Daniel used fake documents and had his informant falsely indicate to the targets
of the investigation that the informant himself was still under investigation. Thus, according to Defendants, "Daniel's
actions are clear cut violations of Rules 4.2 and 8.4(a)." (Id. at 17.)
The court disagrees both with Defendants' interpretation of the facts in this case and the weight it gives to the Hammad
decision. Although the Second Circuit, in Hammad, held that the use of fake documents places a prosecutor's conduct
outside of the authorized by law exception to the no- contact rule, that portion of the Hammad decision is inapplicable in
the instant matter. First, AUSA Daniel did not employ a counterfeit grand jury subpoena bearing the forged signature of the
Clerk of Court as the Government prosecutor in Hammad did. Instead, AUSA Daniel simply drew up a fake agenda letter
addressed to Noonan's attorney and signed by AUSA Daniel himself. This document was fake only insofar as there was no
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pending interview between the Government and Noonan scheduled for April of 2001, as indicated in the letter. By the time
AUSA Daniel had written this letter, Noonan was already cooperating with the Government. At the hearing, Noonan
testified that the Government fabricated the letter for Noonan to use during his meeting with Defendant Brown. Although
preparing and presenting such a letter to an unwitting criminal suspect involves a certain level of dishonesty, it certainly
does *544 not rise to the level of employing a sham grand jury subpoena. See United States v. Murphy, 768 F.2d 1518,
1529 (7th Cir.1985) ("In the pursuit of crime, the Government is not confined to behavior suitable for the drawing room. It
may use decoys and provide the essential tools of the offense.") Second, even if the court were to find that this practice was
equivalent to the prosecutor's actions in Hammad, the Third Circuit has long held that the use of a fabricated grand jury
subpoena "to protect a cover in an ongoing undercover investigation" does not constitute prosecutorial misconduct. United
States v. Martino, 825 F.2d 754, 762 (3d Cir.1987). Given that the holding in Hammad explicitly relied on the finding of
prosecutorial misconduct, the court finds its applicability to the instant matter limited based on the fact that no
prosecutorial misconduct occurred here.
Defendants also argue that a finding that AUSA Daniel's conduct in this case is "authorized by law" would allow the
exception to swallow Rule 4.2's prohibition against contact with represented parties. Moreover, according to Defendants,
such a ruling would eviscerate the purpose of the McDade amendments; that is, making the no-contact rule explicitly
applicable to the conduct of Government attorneys. In support of their position, Defendants cite the following passage from
United States v. Lopez, 765 F.Supp. 1433 (N.D.Cal.1991):
Were this court to accept the Department's argument in this regard, it is not clear that there would any conduct
the prosecutor could not undertake, as long as it was pursuant to his or her responsibility to investigate and
prosecute crimes. [Department of Justice] attorneys would be exempt from rules adopted by federal courts to
govern ethical conduct of attorneys practicing before them. This, quite simply, is an unacceptable result.
Id. at 1448 (emphasis in original).
Lopez, however, is readily distinguishable from the facts in this case. That case involved multiple defendants who had
already been indicted on various drug charges. Apparently, an attorney for one of Lopez's co-defendants contacted Lopez
and encouraged him to engage in plea negotiations with the Government without having his attorney present. Once these
protracted negotiations broke down and the Government's conduct came to light, Lopez's attorney withdrew from the case.
Lopez subsequently moved to have the indictment dismissed because, he alleged, the Government attorney violated the nocontact rule. Id. at 1438-44. The District Court agreed and granted the motion. In doing so, it made two specific holdings.
First, attorneys representing the Federal Government are not exempt from state rules of professional responsibility. See id.
at 1488 ("Without an ethical restraint, a prosecutor's authority to communicate with represented individuals would be
virtually limitless."). Second, post-indictment contacts by Government attorneys are not "authorized by law." See id. at
1450 ("Given the above discussion, the court finds that [the no-contact rule] ... appl[ies] to DOJ attorneys, at least in the
post-indictment phase of criminal investigations and prosecutions."). But see id. at 1448 (recognizing that "Department
attorneys are authorized to communicate with represented individuals without their attorney only in the pre-indictment
context ... and where specific procedural rules authorize the government conduct"). The first of these holdings is
unexceptional after the enactment of the McDade Amendment. The second is irrelevant to the instant matter because it is
beyond dispute that Defendants were not indicted until well over a year after Noonan's last recording *545 took place.
Therefore, to the extent Defendants rely on Lopez for the proposition that it would impermissibly stretch the no- contact
rule to hold that the Government's conduct in this case was authorized by law, the court finds that Lopez is neither
instructive, nor relevant to that point. [FN6]
FN6. Defendants also rely on the District of New Mexico's lengthy quotation of Lopez in support of their
contention that construing the no-contact rule to allow pre-indictment non-custodial interrogation with
represented parties would sap the McDade Amendment of its power. See In re Doe, 801 F.Supp. 478
(D.N.M.1992). However, insofar as that case addresses the no-contact rule, it stands for the singular proposition
that the rule applies to Federal prosecutors; a matter beyond debate in the post-McDade Amendment world. Id.
at 486-87. Even if the court were to import from this holding that Doe stands for the broader proposition that
pre-indictment non-custodial contacts by undercover Government agents violates the no-contact rule, such a
holding would be mere dicta. The court in Doe did not make a finding of unethical conduct on the part of the
Government attorney which necessitated sanctioning the attorney by, for example, suppressing evidence or
dismissing an indictment. Instead, the court merely granted the State of New Mexico's motion to remand the
action to the Disciplinary Board of the New Mexico State Supreme Court. Id. at 489.
The McDade Amendment's lone function was to make state rules of professional responsibility applicable to the conduct of
Government attorneys. That legislation did not state what those rules were, nor did it amend the well-established contours
of those rules. Therefore, as it applies in this case, the McDade Amendment makes it clear only that Rules 4.2 and 8.4(a)
applied to AUSA Daniel's conduct. Those rules prohibit attorneys, or their agents, from contacting parties that are
represented by counsel unless such contact is authorized by law. As previously stated, AUSA Daniel's conduct was
authorized by law and, thus, did not violate the Pennsylvania Rules of Professional Conduct. Defendants, however, contend
that such a reading would allow the exception to swallow the rule, thus weakening the purpose behind the McDade
Amendment. However, Defendants fail to recognize that the exception is part and parcel of Rule 4.2. Therefore, the
McDade Amendment made the entire Rule 4.2, including the authorized by law exception, applicable to the conduct of
Government attorneys. To adopt Defendants' argument would be tantamount to reading the McDade Amendment as
amending all fifty states' rules of professional responsibility as they apply to Government attorneys. Absent a clear
indication from Congress that it intended to do so, the court will not read such an awesome power into the McDade
Amendment's humble command that attorneys for the Government "shall be subject to State laws and rules ... governing
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attorneys in each State ... to the extent and in the same manner as other attorneys in that State." 28 U.S.C. § 530B(a).
Moreover, reading the McDade Amendment according to Defendants' interpretation raises serious public policy concerns
regarding the fairness of the judicial system. It is axiomatic that criminal defendants' trial rights should not depend on the
extent of their financial resources. See, e.g., Powell v. Alabama, 287 U.S. 45, 65, 53 S.Ct. 55, 77 L.Ed. 158 (1932)
(holding, inter alia, that appointment of counsel for impecunious defendants is necessary to comply with requirements of
due process). Yet, adopting a rule that the McDade Amendment prohibits the Government from contacting any person
known to be represented by counsel in any way whatsoever, will insulate from undercover investigation any defendant with
enough financial resources to permanently obtain private counsel. Such a rule would dramatically *546 impugn the
integrity of the judiciary; not to mention the crippling effect it would have on the Government's ability to investigate ongoing criminal activity. Although Defendants argue that such a contention is irrelevant, it would ignore reality to deny the
very real consequences that Defendants' interpretation would have on the day-to-day administration of justice.
Even assuming that the court were to find that AUSA Daniel violated Rule 4.2 of the Pennsylvania Rules of Professional
Conduct, the court doubts that suppression of the Noonan tapes is a proper remedy for such a violation. The Supreme Court
first countenanced the exclusion of otherwise relevant and probative evidence as a remedy for police conduct that violated
a criminal defendant's Fourth Amendment rights. See Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652
(1914); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). In this line of cases, the Court found that "the
[exclusionary] rule's prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the
Fourth Amendment against unreasonable searches and seizures." United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct.
613, 38 L.Ed.2d 561 (1974). The Court, however, has "consistently recognized that unbending application of the
exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of
judge and jury." United States v. Payner, 447 U.S. 727, 734, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980). Thus, the exclusion of
otherwise admissible evidence is sanctioned only where the need to curb Government misconduct outweighs the public's
very substantial right to every man's evidence. Elkins v. United States, 364 U.S. 206, 216, 80 S.Ct. 1437, 4 L.Ed.2d 1669
(1960) ("[A]ny apparent limitation upon the process of discovering truth in a federal trial ought to be imposed only upon
the basis of considerations which outweigh the general need for untrammeled disclosure of competent and relevant
evidence in a court of justice.").
In addition to its power to exclude evidence as a remedy for constitutional violations, the Court has long endorsed the idea
that federal courts also have the inherent supervisory power to exclude "evidence taken from the defendant by 'willful
disobedience of law.' " McNabb v. United States, 318 U.S. 332, 345, 63 S.Ct. 608, 87 L.Ed. 819 (1943); accord Payner,
447 U.S. at 735 n. 7, 100 S.Ct. 2439; Elkins, 364 U.S. at 223, 80 S.Ct. 1437; Rea v. United States, 350 U.S. 214, 216-17,
76 S.Ct. 292, 100 L.Ed. 233 (1956). Under their supervisory power, federal courts may exclude evidence even where the
Government has not violated the Constitution. United States v. Hogan, 712 F.2d 757, 761 (2d Cir.1983). The supervisory
power to exclude evidence, however, should only be imposed to serve three purposes: (1) to remedy violations of a
particular defendant's right; (2) to preserve judicial integrity; and (3) to deter illegal or improper conduct on the part of
Government attorneys and other law enforcement personnel. United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974,
76 L.Ed.2d 96 (1983) (internal citations omitted). Therefore, in order to determine whether exclusion would be proper in
this case, the court must determine whether the need to effectuate any of the these purposes outweighs the Government's
right to present the Noonan tapes for the jury's consideration at trial. The court, therefore, now turns to Rule 4.2 to examine
whether the principals *547 embodied by it would be furthered by suppression of the Noonan tapes.
"Courts and commentators have noted that Rule 4.2 is designed 'to prevent situations in which a represented party may be
taken advantage of by adverse counsel; the presence of the party's attorney theoretically neutralizes the contact.' "
University Patents, Inc. v. Kligman, 737 F.Supp. 325, 327 (E.D.Pa.1990) (quoting Frey v. Department of Health and
Human Servs., 106 F.R.D. 32, 34 (E.D.N.Y.1985)). "The prohibition against communication with a represented party thus
recognizes the inherent danger in a layperson conducting negotiations with an opposing lawyer and the likelihood that such
negotiations would destroy the confidence essential to the attorney-client privilege and hamper the subsequent performance
of the represented party's counsel." Lopez, 765 F.Supp. at 1449; accord United States v. Batchelor, 484 F.Supp. 812, 813
(E.D.Pa.1980).
Thus, the primary purpose of the no-contact rule is to prevent an attorney from intentionally tricking an opposing party into
waiving the protections of the attorney-client relationship; presumably the confidentiality of attorney- client
communications and trial strategies. As a result, if the court were to order the suppression of the Noonan tapes, it could do
so to remedy Defendants' right to confidentially communicate with their attorneys. The court finds that suppression would
not vindicate the confidentiality of Defendants' relationship because Defendants placed the confidentiality in jeopardy by
communicating with an independent party.
"The attorney-client privilege protects confidential communications made to an attorney in his or her professional capacity
in those instances in which a strict relationship between the attorney and the client exists." In re Grand Jury (OO-2H), 211
F.Supp.2d 555, 557-58 (M.D.Pa.2001) (citing Haines v. Liggett Group, Inc., 975 F.2d 81, 94 (3d Cir.1992)). The
confidentiality of this relationship is protected "to ensure that a client remains free from apprehension that consultations
with a legal adviser will be disclosed." Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851, 862 (3d Cir.1994).
Such concerns are not implicated where, as in the instant matter, a client voluntarily consults a third party regarding
matters essential to the client's case. See United States v. Moscony, 927 F.2d 742, 752 (3d Cir.1991) ("It is generally true
that if the client intended the matter to be made public, the requisite confidentiality is lacking." (internal quotations
omitted)); see also Edna Selan Epstein, American Bar Association Section of Litigation, The Attorney-Client Privilege and
the Work-Product Doctrine 171 (4th ed. 2001) ("To be privileged, a communication must be made with the intention of
being kept confidential.").
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The fact that Defendants erroneously believed that they were consulting with a friendly ear, rather than a Government
agent, does not change this analysis. Put another way, although Defendants could not have reasonably known that the
Government was monitoring their conversations with Noonan, they likewise could not have reasonably believed that they
were communicating with their attorneys at the time the three men decided to meet to discuss matters related to the various
investigations arising out of their tenures as Rite Aid officers. Defendants waived the confidential nature of this
information by divulging it to Noonan because he was not their attorney. Defendants cannot now cry out that the sacrosanct
nature of their confidential relationship with their attorneys has been usurped by improper Government stratagem when
they themselves intentionally caused confidential information *548 to be divulged to a third party whom they knew was
not connected to the defense of any case that might be brought against them. [FN7] Because the undisputed facts indicate
that Defendants demonstrated a willingness to share information with a person who was not one of their attorneys, the
court cannot say that the Government's conduct caused a violation of Defendants' right to confidentially communicate with
their attorneys. Thus, the purpose behind the no-contact rule--i.e. the protection of the confidential nature of the attorneyclient relationship--would not be vindicated by suppression of the Noonan tapes. [FN8]
FN7. It is worth noting that Defendant Brown initiated contact with Noonan and that he made the necessary
arrangements for the meeting between himself, Noonan, and Defendant Grass.
FN8. Moreover, it is worth noting that the Government took aims to protect Defendants' confidential
communications with their attorneys. At least twice, Agent Delaney admonished Noonan to avoid conversations
regarding what Defendants had communicated to their lawyers. See supra at Part I.
Likewise, the court finds that suppression in this case would do little to deter illegal or improper conduct on the part of
Government attorneys. [FN9] Even if the court were to find that AUSA Daniel violated Rule 4.2--although the court
specifically has not done so--it cannot say that his conduct, nor that of his collogues at the United States Attorney's office,
was so egregious that the court should punish the Government by preventing it from presenting the fruits of its
investigation. Contrary to Defendants' assertion, the facts presented do not "illustrate a deliberate attempt by the prosecutor
to flout Rule 4.2 by using informant Noonan as an 'alter ego' to interview Grass and Brown about the facts under
investigation." (Defs. Reply Br. at 19.) Rather, the facts indicate that the Government believed, in good faith, that their
conduct did not violate Rule 4.2. The McDade Amendment is a new creature. The breadth of its reach had yet to be tested
when the Government came to the not unreasonable conclusion that its long-endorsed investigatory practice of using
undercover agents to procure information from represented parties remained unaffected. Even if this assumption turned out
to be erroneous, the court cannot say that the Government acted with a willfulness to flout its responsibility to refrain from
contacting parties represented by counsel.
FN9. The Government's actions did not involve the court in any tangible manner. Therefore, the court finds that
suppression of the Noonan tapes would do nothing to protect the integrity of the judicial system.
In addressing whether exclusion is required for violation of the Fourth Amendment, "[t]he Court has acknowledged that the
suppression of probative but tainted evidence exacts a costly toll upon the ability of courts to ascertain the truth in a
criminal case." Payner, 447 U.S. at 734, 100 S.Ct. 2439 (citations omitted). "As with any remedial device, the application
of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." Calandra,
414 U.S. at 348, 94 S.Ct. 613. Accordingly, where a law enforcement official objectively relies in good faith upon
misinformation, the deterrent effect of the exclusionary rule is too attenuated to require suppression of otherwise
admissible evidence. See United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ("We conclude
that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a
subsequently invalidated search warrant cannot justify the *549 substantial costs of exclusion."); Michigan v. DeFillippo,
443 U.S. 31, 40, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979) (denying suppression of evidence obtained in search incident to
arrest made in good faith pursuant to a criminal statute later declared unconstitutional). Additionally, the Court has held
that deterrence is an inappropriate justification for sanction "where means more narrowly tailored to deter objectionable
prosecutorial misconduct are available." Hasting, 461 U.S. at 506, 103 S.Ct. 1974 (holding inappropriate reversal of
conviction as sanction for prosecutor commenting on the defendant's silence where prosecutor could be referred to attorney
discipline board). Although the majority of these holdings addressed whether suppression is an appropriate remedy for
violation of the Fourth Amendment, their reasoning is equally persuasive in the present context. See Payner, 447 U.S. at
735-36, 100 S.Ct. 2439 (holding that the standards for excluding evidence pursuant to the Fourth Amendment are identical
to those for determining exclusion under the courts' supervisory power, "[i]n either case, the need to deter the underlying
conduct and the detrimental impact of excluding evidence remain precisely the same").
When the balancing test is applied to the facts in this case, it becomes clear that suppression would be an unduly harsh
remedy. Defendants, not the Government, placed the confidentiality of their relationships with their attorneys in jeopardy
by divulging information normally protected by the attorney-client privilege to a third-party. Thus, suppression would not
vindicate the confidentiality of the attorney-client relationship. Additionally, the Government relied in good faith on the
long line of cases holding that pre-indictment non-custodial interrogation with a party represented by counsel is
"authorized by law." The McDade Amendment's command that state rules of ethics apply to Government attorneys to the
same extent as private attorneys, at best, arguably manifests an intention to eliminate the type of practice used by the
Government in this case. Therefore, the court finds that even if the McDade Amendment placed the Government's conduct
outside the "authorized by law" exception to the no-contact rule, it did not do so with enough clarity to warrant a finding
that the Government acted in bad faith. As such, the court will not order suppression of the Noonan tapes because the
deterrent effect of suppression would be, at best, minimal. Moreover, an alternative, and more appropriate remedy, would
be for an aggrieved party to file a complaint before the Pennsylvania Disciplinary Board. See Hasting, 461 U.S. at 506, 103
S.Ct. 1974.
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Conclusion
In accordance with the preceding discussion, the court will deny Defendants Grass and Brown's motion to suppress the
Noonan tapes. The court finds that AUSA Daniel's conduct in this case was "authorized by law," and thus, did not violate
Rule 4.2 of the Pennsylvania Rules of Professional Conduct. Alternatively, the court finds that even if the McDade
Amendment effectively banned pre-indictment non-custodial undercover interrogation of represented parties by
Government agents, the court finds that AUSA Daniel relied in good faith on prior caselaw upholding such practices. Thus,
suppression of the Noonan tapes would be unjustified. An appropriate order will issue.
[Note. This case is significant for prosecutors involved with pre-charge investigative advice to law
enforcement. Based upon this case and citations therein, prosecutors should feel secure in pre-charge
advice to law enforcement involving a case with a represented suspect. But prosecutors should take heed of
footnote 8, that applauds the prosecutor for making clear to law enforcement that it must avoid all attorneyclient conversations the suspect had with his attorney.]
Case Law — RPC 4.2’s No Contact Prohibition with Represented Person Unless
Consent of Other Lawyer or “Lawyer is Authorized by Law to do so” — PostCharging
 Unites States v. Danielson, 325 F.3d 1054 (9th Cir. 2003) (Before trial but after charging; federal
prosecutor had informant tape record conversations with defendant which included discussion about trial
strategy. Held violation of Sixth Amendment right to counsel, and remanded to determine prejudice.) —
In this hotly contested case, William Dennis Danielson was convicted of illegally selling and transporting in interstate
commerce a deer taken without a state-issued tag in violation of the Lacey Act, 16 U.S.C. §§ 3372(a)(2)(A) and 3372(c).
Danielson appeals his conviction on the ground that the government violated his Sixth Amendment right to counsel.
The prosecution team in this case deliberately and affirmatively took steps, while Danielson was represented by counsel,
that resulted in the prosecution team's obtaining privileged information about Danielson's trial strategy. Members of the
prosecution team wrote and retained memoranda containing privileged trial strategy information, as well as recorded,
listened to, transcribed, and retained the tapes and transcripts containing the privileged information. In addition, the
Assistant United States Attorney in charge of the prosecution retained in his private office memoranda and unredacted
transcripts containing the privileged information. None of this material was produced to Danielson or his counsel during
pre-trial discovery.
The government's interference with Danielson's attorney-client relationship was neither accidental nor unavoidable, but
was rather the result of deliberate and affirmative acts. We therefore hold that if there was prejudice there was a violation
of the Sixth Amendment under Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). For a
determination of prejudice, we rely on United States v. Mastroianni, 749 F.2d 900 (1st Cir.1984), and Kastigar v. United
States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), to hold that the government has the "heavy burden" of proving
non-use of Danielson's trial strategy information. We remand to the district court for an evidentiary hearing for a
determination of prejudice under this standard. …
In his affidavit in the district court, AUSA Kent states that he and the police were seeking to use Sava to gather evidence of
new crimes by Danielson-- such as subornation of perjury and bribery--rather than information relevant to Danielson's trial
strategy in the case already filed against him. Kent describes a meeting with Sava on an unspecified date in December. He
states that at that meeting he advised Sava that "because of certain rules of law, I did not want to be advised of any
information other than new and separate criminal conduct such as obstruction of justice," and that Sava "should not solicit
trial strategy information from Danielson." …
Kent does not state in his affidavit that he instructed Owren or other police officers involved in Danielson's prosecution
that they should avoid learning about Danielson's privileged trial strategy, or that they should instruct Sava not to report
privileged information to them. …
Until oral argument before this court, Kent had never mentioned redacted transcripts. The district court record contains no
redacted transcripts.
During pretrial discovery, the government did not disclose the existence of the memoranda, tapes, or transcripts. Danielson
*1065 first learned of the tapes during the government's cross examination of Danielson on April 27, 2000. After Kent
questioned Danielson about alleged attempts to influence witnesses, he asked Danielson, "[Y]ou'd do anything in this case
to--to win, wouldn't you?" Danielson replied, "I'm not guilty." Kent then asked for a sidebar. The district court sent the jury
out of the courtroom, whereupon Kent revealed that the government had Danielson "on tape talking about rigging this
jury." Kent stated that, based on information in the tapes, he would establish that Danielson stated that he had bribed a
grand jury witness and that he had instructed someone "on how to reach this jury." The court recalled the jury and allowed
the government to continue its cross examination of Danielson. Danielson made no objection based on the Sixth
Amendment at that time. …
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The Sixth Amendment is meant to assure fairness in the adversary criminal process. United States v. Cronic, 466 U.S. 648,
656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). "The very premise of our adversary system of criminal justice is that partisan
advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go
free." Id. at 655, 104 S.Ct. 2039 (quoting Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975)).
Because this "very premise" is the foundation of the rights secured by the Sixth Amendment, where the Sixth Amendment
is violated, "a serious risk of injustice infects the trial itself." Id. at 656, 104 S.Ct. 2039 (quoting Cuyler v. Sullivan, 446
U.S. 335, 343, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). The Supreme Court has instructed us to evaluate prosecutorial
behavior based on its effect on the fairness of the trial. See United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 49
L.Ed.2d 342 (1976). "As an officer of the court, the prosecutor has a heavy responsibility both to the court and to the
defendant to conduct a fair trial...." United States v. Escalante, 637 F.2d 1197, 1203 (9th Cir.1980). The Court has
instructed us to be mindful of "whether, despite the strong presumption of reliability, the result of the particular proceeding
is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results."
Strickland v. Washington, 466 U.S. 668, 696, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). With these guiding principles in
mind, we turn to Danielson's Sixth Amendment claim.
Danielson's Sixth Amendment right to counsel attached when the government initiated adversarial proceedings against
him. See Maine v. Moulton, 474 U.S. 159, 170, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). At that point, Danielson had a right
to rely on his counsel as a "medium" between himself and the government. Id. at 176, 106 S.Ct. 477. Danielson's Sixth
Amendment right to counsel was offense-specific. See McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115
L.Ed.2d 158 (1991). That is, he had a right to counsel only on the offenses for which he had been indicted, and on any
other offenses that constituted the "same offense" under the Blockburger test. See Texas v. Cobb, 532 U.S. 162, 167-73,
121 S.Ct. 1335, 149 L.Ed.2d 321 (2001); Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306
(1932). The government's use of Sava to obtain Danielson's statements regarding separate offenses for which he had not
been indicted, such as jury tampering and suborning perjury, was not an impermissible intrusion into the attorney-client
privilege and therefore did not violate his Sixth Amendment rights. See Cobb, 532 U.S. at 173, 121 S.Ct. 1335.
The information sought and obtained by Sava, however, was not limited to information regarding separate offenses. The
tape recordings of his conversations with Danielson contain discussions of Danielson's plan to testify in his own defense
and of the trial strategy he was planning to employ on the indicted offenses. Government actions that deliberately elicit
incriminating statements from an indicted defendant in the absence of counsel are improper under the Sixth Amendment.
See Moulton, 474 U.S. at 176-80, 106 S.Ct. 477; United States v. Henry, 447 U.S. 264, 274, 100 S.Ct. 2183, 65 L.Ed.2d
115 (1980); Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Any statements so
gathered must be excluded from the government's case-in-chief, although the government is permitted to use them for
impeachment purposes, provided the statements were voluntary. See Michigan v. Harvey, 494 U.S. 344, 349-53, 110 S.Ct.
1176, 108 L.Ed.2d 293 (1990); Ortega, 203 F.3d at 681. The problem in this case, however, is not that the government
obtained incriminating statements or other specific evidence, but rather that it obtained information about Danielson's trial
strategy.
The centerpiece of our analysis must be Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). In
Weatherford, plaintiff Bursey sued Weatherford, a law enforcement agent who had worked undercover on Bursey's
criminal case, under 42 U.S.C. § 1983. Weatherford and Bursey had been arrested together after they jointly participated in
vandalizing a Selective Service office. After the arrest, Weatherford continued to act as if he were one of Bursey's codefendants. He even retained an attorney in order to continue "the masquerade." Weatherford, 429 U.S. at 547, 97 S.Ct.
837. Weatherford met twice with Bursey and his trial counsel, and Bursey and his counsel discussed trial strategy at those
meetings. The district court specifically found that Weatherford had not sought to attend those meetings, but rather had
been invited by Bursey and his counsel to do so. As the Supreme Court put it, Weatherford was invited "apparently not for
his benefit but for the benefit of Bursey and his lawyer." Id. at 557, 97 S.Ct. 837. There was no indication that Weatherford
initiated any topics of discussion or questioned Bursey regarding his trial strategy. The district court held that Bursey's
Sixth Amendment rights had not been violated. The Fourth Circuit reversed, holding that "whenever the prosecution
knowingly arranges or permits intrusion into the attorney-client relationship the right to counsel is sufficiently endangered
to require reversal and a new trial." Id. at 549, 97 S.Ct. 837.
The Supreme Court rejected the Fourth Circuit's per se rule. But it also rejected a per se rule proposed by the state under
which a defendant conversing with counsel in the presence of a third party would assume the risk that the third party may
turn out to be a government informant. Id. at 554, 97 S.Ct. 837. Instead, the Court took a middle ground, holding that
where "there was no purposeful intrusion by Weatherford," where there was "no communication of defense strategy to the
prosecution," and where there was "no tainted evidence," there was no Sixth Amendment violation. Id. at 558, 97 S.Ct.
837. …
This case is materially different from Weatherford. First, unlike in Weatherford, Sava "purposefully intru[ded]" himself
into the attorney-client relationship. In Weatherford, Bursey and his counsel initiated the meetings and invited Weatherford
to attend, and Weatherford would have jeopardized his undercover status by not attending. Further, there was no evidence
that Weatherford had initiated conversation on privileged topics. By contrast, Sava initiated conversations with Danielson
on privileged matters, and would have jeopardized nothing by not asking the questions that elicited the privileged
information. …
Second, in Weatherford, there was "no communication of defense strategy to the prosecution." Id. at 558, 97 S.Ct. 837. The
Court was careful to note that at no time did Weatherford "discuss or pass on to his superiors or to the prosecuting attorney
or any of the attorney's staff" any *1069 of the privileged information he learned at the meetings. Id. Unlike Weatherford,
Sava reported regularly and extensively to the police working with Kent what he had learned about Danielson's trial
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strategy. Trooper Owren, the "primary law enforcement officer in this case," then prepared and sent to Kent memoranda
and transcripts containing the privileged trial strategy information that Sava had obtained. …
In cases where wrongful intrusion results in the prosecution obtaining the defendant's trial strategy, the question of
prejudice is more subtle. In such cases, it will often be unclear whether, and how, the prosecution's improperly obtained
information about the defendant's trial strategy may have been used, and whether there was prejudice. More important, in
such cases the government and the defendant will have unequal access to knowledge. The prosecution team knows what it
did and why. The defendant can only guess. …
The First Circuit established a two-step analysis in Mastroianni. First, the defendant must make a "prima facie showing of
prejudice." In Mastroianni itself, the prima facie showing was made by showing "that confidential communications were
conveyed as a result of the presence of a government informant at a defense meeting." 749 F.2d at 907- 08. We adopt the
Mastroianni approach to the first step, but with the following modification: It is not enough to establish a prima facie case
to show that the government informant was involuntarily present at a meeting and passively received privileged
information about trial strategy. Rather, consistent with the Court's analysis in Weatherford, the government informant
must have acted affirmatively to intrude into the attorney-client relationship and thereby to obtain the privileged
information. Second, under Mastroianni, once the prima facie case has been established, "the burden shifts to the
government to show that there has been ... no prejudice to the defendant[ ] as a result of these communications." Id. at 908.
We adopt the Mastroianni approach to the second step without modification. …
We do not believe that adopting the Mastroianni/Kastigar approach imposes an unreasonable burden on the prosecution. It
is true that once the government has improperly interfered with the attorney-client relationship and thereby obtained
privileged trial strategy information, the prosecutor has the "heavy burden" of showing non-use. But the prosecution team
can avoid this burden either by not improperly intruding into the attorney-client relationship in the first place, or by
insulating itself from privileged trial strategy information that might thereby be obtained.
We recognize that the government has a legitimate interest in investigating independent crimes contemplated or perpetrated
by an indicted defendant. We recognize, further, that there are very real practical problems for such an investigation when,
as here, that investigation is intended to obtain non- privileged information but risks obtaining privileged trial strategy
information as well. In such a case, the prosecution team can do a number of things to insulate itself from privileged trial
strategy information. For example, during the prosecution of Manuel Noriega, the government tape recorded telephone
calls made by Noriega while he was incarcerated, but it "took steps to shield itself and its case agents from any attorneyclient conversations that might be contained on the tapes." United States v. Noriega, 764 F.Supp. 1480, 1483
(S.D.Fla.1991). The tapes were screened by a DEA agent who was unaffiliated with the prosecution of Noriega. If a tape
contained privileged information, the agent's *1073 job was to "immediately seal and segregate that tape from the others."
Id. If only a portion of the tape contained such information, "then only a sanitized copy or transcript would be provided to
case agents and prosecutors." Id.
Nor is an insulation, or "firewall," procedure novel in more ordinary criminal cases. See, e.g., Crowson, 828 F.2d at 1430
n.4 (endorsing recommendation in U.S. Attorneys' manual that United States attorneys who are aware of the contents of
compelled, immunized grand jury testimony not be involved in the subsequent prosecution of the witness); Bagley, 641
F.2d at 1239 ("[T]he government prosecutors in this case were careful to insulate themselves from any information [the
informant] might have provided to federal agents who debriefed him; the prosecutors did not receive any notes, tapes, or
statements relating to [the informant's] conversations with appellant."). Nor, finally, is use of a firewall device limited to
criminal prosecutions. See, e.g., First Interstate Bank of Ariz. v. Murphy, Weir & Butler, 210 F.3d 983 (9th Cir.2000)
(noting that a judge is required to insulate a law clerk completely from any matters involving a law firm with which the law
clerk has accepted employment in order to avoid the appearance of impropriety and that where such insulation fails, the
judge must recuse herself because her impartiality might reasonably be questioned). …
In this case, AUSA Kent stated that he attempted to insulate himself and the members of his prosecution team from
privileged trial strategy information, but these attempts did not go far enough. The prosecution team, based on Owren's
initial meeting with Sava on December 8, knew that Sava had learned trial strategy and was on notice that he might learn
more. Kent states in his affidavit that sometime in December he told Sava not to inquire into Danielson's trial strategy, but
it is undisputed that Sava did so nonetheless. In late December and throughout January, Sava elicited trial strategy
information, yet there is nothing in the record indicating that Kent's earlier instruction was ever repeated. Further, the
record reveals no attempt, at any point, to insulate the police officers working with Kent as part of the prosecution team
from the privileged information.
 Fellers v. United States, 540 U.S. 519, 124 S.Ct. 1019, 157 L.Ed.2d 1016 (2004) (officers violated
Sixth Amendment right to counsel by deliberately eliciting information from defendant during postindictment visit to his home absent counsel or waiver of counsel, regardless of whether officers' conduct
constituted an "interrogation" under Fifth Amendment Miranda analysis) —
The Sixth Amendment right to counsel is triggered "at or after the time that judicial proceedings have been initiated ...
'whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.' " Brewer v. Williams,
430 U.S. 387, 398, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32
L.Ed.2d 411 (1972)). We have held that an accused is denied "the basic protections" of the Sixth Amendment "when there
[is] used against him at his trial evidence of his own incriminating words, which federal agents ... deliberately elicited from
him after he had been indicted and in the absence of his counsel." Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct.
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1199, 12 L.Ed.2d 246 (1964); cf. Patterson v. Illinois, supra (holding that the Sixth Amendment does not bar
postindictment questioning in the absence of counsel if a defendant waives the right to counsel).
We have consistently applied the deliberate-elicitation standard in subsequent Sixth Amendment cases, see United States v.
Henry, 447 U.S. 264, 270, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) ("The question here is whether under the facts of this
case a Government agent 'deliberately elicited' incriminating statements ... within the meaning of Massiah"); Brewer, supra,
at 399, 97 S.Ct. 1232 (finding a Sixth Amendment violation where a detective "deliberately *1023 and designedly set out
to elicit information from [the suspect]"), and we have expressly distinguished this standard from the Fifth Amendment
custodial-interrogation standard, see Michigan v. Jackson, 475 U.S. 625, 632, n. 5, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986)
("[T]he Sixth Amendment provides a right to counsel ... even when there is no interrogation and no Fifth Amendment
applicability"); Rhode Island v. Innis, 446 U.S. 291, 300, n. 4, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) ("The definitions of
'interrogation' under the Fifth and Sixth Amendments, if indeed the term 'interrogation' is even apt in the Sixth Amendment
context, are not necessarily interchangeable"); cf. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149
(1967) (holding that the Sixth Amendment provides the right to counsel at a postindictment lineup even though the Fifth
Amendment is not implicated).
The Court of Appeals erred in holding that the absence of an "interrogation" foreclosed petitioner's claim that the jailhouse
statements should have been suppressed as fruits of the statements taken from petitioner at his home. First, there is no
question that the officers in this case "deliberately elicited" information from petitioner. Indeed, the officers, upon arriving
at petitioner's house, informed him that their purpose in coming was to discuss his involvement in the distribution of
methamphetamine and his association with certain charged co-conspirators. 285 F.3d, at 723; App. 112. Because the
ensuing discussion took place after petitioner had been indicted, outside the presence of counsel, and in the absence of any
waiver of petitioner's Sixth Amendment rights, the Court of Appeals erred in holding that the officers' actions did not
violate the Sixth Amendment standards established in Massiah, supra, and its progeny.
Second, because of its erroneous determination that petitioner was not questioned in violation of Sixth Amendment
standards, the Court of Appeals improperly conducted its "fruits" analysis under the Fifth Amendment. Specifically, it
applied Elstad, supra, to hold that the admissibility of the jailhouse statements turns solely on whether the statements were
" 'knowingly and voluntarily made.' " 285 F.3d, at 724 (quoting Elstad, supra, at 309, 105 S.Ct. 1285). The Court of
Appeals did not reach the question whether the Sixth Amendment requires suppression of petitioner's jailhouse statements
on the ground that they were the fruits of previous questioning conducted in violation of the Sixth Amendment deliberateelicitation standard. We have not had occasion to decide whether the rationale of Elstad applies when a suspect makes
incriminating statements after a knowing and voluntary waiver of his right to counsel notwithstanding earlier police
questioning in violation of Sixth Amendment standards. We therefore remand to the Court of Appeals to address this issue
in the first instance.
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Standard 3-2.8 Relations With the Courts and Bar
(a) A prosecutor should not intentionally misrepresent matters of fact or law to the court.
(b) A prosecutor's duties necessarily involve frequent and regular official contacts with the judge or judges of the
prosecutor's jurisdiction. In such contacts the prosecutor should carefully strive to preserve the appearance as well as the
reality of the correct relationship which professional traditions, ethical codes, and applicable law require between
advocates and judges.
(c) A prosecutor should not engage in unauthorized ex parte discussions with or submission of material to a judge relating
to a particular case which is or may come before the judge.
(d) A prosecutor should not fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the
prosecutor to be directly adverse to the prosecutor's position and not disclosed by defense counsel.
(e) A prosecutor should strive to develop good working relationships with defense counsel in order to facilitate the
resolution of ethical problems. In particular, a prosecutor should assure defense counsel that if counsel finds it necessary to
deliver physical items which may be relevant to a pending case or investigation to the prosecutor the prosecutor will not
offer the fact of such delivery by defense counsel as evidence before a jury for purposes of establishing defense counsel's
client's culpability. However, nothing in this Standard shall prevent a prosecutor from offering evidence of the fact of such
delivery in a subsequent proceeding for the purpose of proving a crime or fraud in the delivery of the evidence.
Excerpt from Commentary to ABA Standard
“Misrepresentation and Disclosures. It is fundamental that in relations with the court, the prosecutor must be scrupulously
candid and truthful in his or her representations in respect to any matter before the court …”
“Preserving Professional Relationships. The prosecutor has the professional obligation to maintain a respectful attitude
toward the court … The prosecutor’s attitude communicates to the layperson in the courtroom the professional relation that
exists between judge and lawyer. The appropriate way to challenge the judge’s decisions is through appropriate procedural
devices, including objections and appeals designed for that purpose, not by a show of belligerency that exceeds the need to
make a record of what the prosecutor believes is error in the case …”
“Moreover, the practice of law requires the appearance as well as the reality of fairness in the administration of justice.
Failure to observe professional relationships between advocates and with judges casts a shadow that lawyers, and
especially prosecutors, should avoid …”
“Opposing counsel and the public cannot fail to be disturbed by the existence or the appearance of a close social
relationship between one of the contending advocates and the ‘umpire.’ Often this kind of relationship develops innocently
and gradually without an awareness on the part of the judge or prosecutor and indeed without a scintilla of actual
impropriety. The appearance, however, can assume the importance of reality … Even at the risk of giving offense, the
prosecutor should exercise great care not to allow any relationship to develop that casts doubt upon the administration of
justice or the independence of the court and of the prosecutor.”
“Ex Parte Contacts with the Court. There are, of necessity, occasions when a judge must discuss problems relating to the
administration of the court’s business with the prosecutor or members of the prosecutor’s staff. The need for such
appropriate discussions with a judge in chambers or in the courtroom should not be permitted to give rise to ex parte
discussion concerning a particular case that is or may come before the court …”
“Relations with Defense Counsel … Whenever defense counsel is regularly sought out by accused persons because it is
thought that counsel has a special relationship with the prosecutor or the judge, the ‘symptoms of illness’ are present and
the courts, the bar, and the public may mistake the symptoms for the disease … Prosecutors, of course, need not and should
not avoid friendly contacts with defense lawyers or participation in social and professional activities of bar groups.”
“Receipt of Physical Evidence from Defense Counsel. There are some circumstances in which defense counsel may be
professionally obligated to turn over or to disclose the location of physical evidence relevant to a criminal investigation or
proceeding to the prosecutor’s office on a sua sponte basis. The prosecutor’s concomitant professional obligation in such
circumstances is to assure defense counsel that the fact that such evidence may be received from counsel will not be
brought to the attention of the fact finder in a subsequent judicial proceeding for the purpose of establishing counsel’s
client’s culpability …”
“A prosecutor who receives such an item is not, of course, barred from introducing it, subject to the rules of evidence, in
any proceeding for whatever probative value it may carry. The prosecutor simply should not use the fact of defense
counsel’s temporary possession of the evidence (or knowledge of its location) as proof of the accused’s culpability …”
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Case Law — Ex Parte Proceedings — Duty of Candor
 In re Disciplinary Proceeding Against Carmick, 146 Wn.2d 582, 48 P.3d 311 (2002) (Lawyer
suspended for 60 days for making misrepresentations to obtain ex parte order and for directly
communicating with an adverse party the lawyer should have known was represented by counsel.)—
We first address Carmick's conduct during the ex parte proceeding, as we find this conduct the most serious of *595 the
violations before us and the violation best supported by the record. While we consider all alleged violations of the RPCs
with great seriousness, we view misrepresentations to the court in ex parte proceedings with particular disfavor. The duty
of candor in an ex parte proceeding directly influences the administration of justice. We cannot, and will not, tolerate any
deviation from the strictest adherence to this duty. [FN3] In the simplest terms, an attorney in an ex parte proceeding who
knowingly misrepresents to a judge the ex parte order is known to the opposing party and approved by that party shall be
subject to discipline. [FN4]
FN3. We note this is also a violation of the oath of attorney prohibiting an attorney from seeking to mislead a
judge by any artifice or false statement. APR 5(d)(5).
FN4. The language of RPC 3.3(f) refers to a "tribunal" because it is a more inclusive term. Our use of the term
"judge" does not indicate a more restrictive application than the rule would.
In an ex parte proceeding, an attorney is required to inform the tribunal of all relevant facts known to the attorney that
should be disclosed to permit the tribunal to make an informed decision, whether or not the facts are adverse. RPC 3.3(f).
An attorney shall not communicate ex parte with a judge except as permitted by law. RPC 3.5(b). These rules are designed
to protect the integrity of the legal system and the ability of courts to function as courts. An attorney's duty of candor is at
its highest when opposing counsel is not present to disclose contrary facts or expose deficiencies in legal argument. Such a
high level of candor is necessary to prevent judges from making decisions that differ from those they would reach in an
adversarial proceeding. Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering: Handbook on the Model
Rules of Professional Conduct § 29.2, at 29-3, 29-4 (3d ed.2001).
Although the comments to the Model Rules of Professional Conduct have not been adopted in Washington, the
commentary may be "instructive in exploring the underlying policy of the rules." State v. Hunsaker, 74 Wash.App. 38, 46,
873 P.2d 540 (1994). In an ex parte proceeding, an attorney making an assertion purported to be on the *596 attorney's
own knowledge, such as a statement in open court, may properly make the assertion only when the attorney knows it to be
true or has made a reasonably diligent inquiry. Model Rules of Prof'l Conduct (Model Rules) R. 3.3 cmt. 3 (2001). …
Case Law — Ex Parte Proceedings — Prosecution’s Motion to Dismiss Without
Prejudice
 State v. Taylor, 114 Wn.App. 124, 56 P.3d 600 (Div. 2 2002) (Prosecutor obtained ex parte order of
dismissal without prejudice. Held that a dismissal without prejudice is not reviewable, but see footnote 1)—
FN1. We do not address the arguments concerning the ex parte conduct as being violative of due process. We strongly urge
the State to avoid ex parte contacts; this motion should have been presented with notice at an appropriate time when
defense counsel could be present. But, it has no effect on the outcome of this case.

State v. Taylor, 150 Wn.2d 599, 80 P.3d 605 (2003) (Appeal of above Taylor case. Div. 2 affirmed.) —
FN2. Taylor argued to the court below that the State's conduct in presenting the motion to dismiss without prior notice to
Taylor was violative of due process. Although we frown upon ex parte contacts, this issue will not be reviewed because it
was not properly presented to this court. See RAP 13.7(b); Wood v. Postelthwaite, 82 Wash.2d 387, 389, 510 P.2d 1109
(1973) (this court does not have to consider issues that are not raised in the petition for review or the answer to the petition
for review).
The issue was raised by the Washington Association of Criminal Defense Lawyers in its amicus curiae brief. We do not,
however, address issues raised only by amicus. Citizens for Responsible Wildlife Mgmt. v. State, 149 Wash.2d 622, 631,
71 P.3d 644 (2003).
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Case Law — Impugning Integrity of Judge in Pleadings
 In re Wilkins, 782 N.E.2d 985, cert. denied, 540 U.S. 813, 124 S.Ct. 63, 157 L.Ed.2d 27 (Ind. 2003)
(Counsel, in an appellate brief footnote, impugned the integrity of the appellate court. Lawyer apologized
to all concerned. Held public reprimand ordered.) —
We dispose of these requests largely on the difference between sound advocacy and defamation. Lawyers are completely
free to criticize the decisions of judges. As licensed professionals, they are not free to make recklessly false claims about a
judge's integrity. …
These considerations are limited, however, by Indiana Professional Conduct Rule 8.2(a), which provides in relevant part:
"A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity
concerning the ... integrity of a judge...." Our per curiam opinion noted that the respondent's brief suggested that the
decision of the judges on the Court of Appeals resulted from unethical motivations. The offending language consisted of
footnote 2 to his brief, stating:
Indeed, the [Court of Appeals] Opinion is so factually and legally inaccurate that one is left to wonder whether
the Court of Appeals was determined to find for Appellee Sports, Inc., and then said whatever was necessary to
reach that conclusion (regardless of whether the facts or the law supported its decision).
Wilkins, 777 N.E.2d at 716.
The language of footnote 2 does not merely argue that the Court of Appeals decision is factually or legally inaccurate. Such
would be permissible advocacy. The footnote goes further and ascribes bias and favoritism to the judges authoring and
concurring in the majority opinion of the Court of Appeals, and it implies that these judges manufactured a false rationale
in an attempt to justify their pre-conceived desired outcome. These aspersions transgress the wide latitude given appellate
argument, and they clearly impugn the integrity of a judge in violation of Professional Conduct Rule 8.2(a). We decline to
revise our determination that the respondent violated Rule 8.2(a).
 In re Joseph R. Jackson, WSBA No. 12929. Admonished. No factual basis to support allegations
against judge. RPC 8.2(a) violated. See Washington State Bar News, September 2004, at 52. Attorney
represented client in collection matter. In a brief filed with court, the attorney stated–
[e]ither the judge chose to disbelieve all the testimony of any sort presented by all of [garnishee employer’s] witnesses and
disbelieve the record and facts before the Court … or the Judge was in some mannter intentionally biased against the
[garnishee employer]. Prior to going on the bench the Judge was a partner in the same law firm as [the garnisher’s] counsel
and has only been on the bench approximately five years. It appears that bias still exists and the Trial Judge intentionally
favored his former partner despite all the facts and evidence to the contrary.
Judicial Ethics Opinion — Personal Friends with Counsel
State of Washington
Ethics Advisory Committee
Opinion 04-02
Question
Should a judicial officer disqualify himself/herself from hearing any case in which personal friends are counsel?
Family law commissioners, who were formerly deputy prosecuting attorneys in the family law division of the prosecutor’s
office, recuse themselves in cases in which their friends who are deputy prosecuting attorneys are counsel. During their
employment with the prosecutor, they each developed cordial professional relationships with their fellow deputies and
closer personal friendships with certain deputies. Following appointment to the bench, it is the court’s policy not to permit
the commissioners to hear cases from the family law division for one year.
Once the commissioners began hearing cases involving the family law division, each commissioner recused himself/herself
from hearing any case in which a deputy who is also a friend would appear to argue the case. However, the commissioners
would hear cases assigned to those deputies so long as another deputy presented and argued the matter before the
commissioner. In those cases, the pleadings may be prepared and signed by the deputy who could not appear in person, but
pleadings generally consist of trial memoranda and briefs signed on behalf of the county prosecuting attorney. Pleadings
may also contain affidavits from others and supporting documents, but do not include affidavits of substantive information
signed by the deputy.
The deputies have no financial interest in the outcome of their cases.
Answer
CJC Canon 3(D)(1) provides that judges should disqualify themselves in a proceeding in which their impartiality might
reasonably be questioned. This canon goes on to cite examples over which a judicial officer should be disqualified from
presiding. Although not exhaustive the examples cited all involve situations where a judicial officer has personal
knowledge about the proceeding, personal bias or prejudice regarding a party, served as a witness or was a lawyer in the
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matter in controversy or a lawyer with whom the judicial officer practiced served during that association as a lawyer or the
judicial officer or a member of the judicial officer’s household has an economic interest or is involved with the proceeding.
This canon does not require a judicial officer to be disqualified from presiding over a matter in which a friend of the
judicial officer is acting as counsel in the absence of other circumstances which would require disqualification. There may
be circumstances in which a judicial officer should disqualify him/herself from presiding over a matter in which a friend is
acting as counsel, such as where, because of the friendship, it would appear that the judicial officer might not be impartial
or the judicial officer questions his/her ability to be impartial.
While not specifically required by the rule, the following approach is one that the Committee understands is utilized by
some judicial officers and is one that the Committee believes is in tune with the spirit of the rule:
The judicial officer should disclose that he/she is either acquainted with or friends with counsel and explain the nature of
the relationship. In some situations because of the nature of that relationship, the judicial officer should recuse if he/she
cannot be impartial or if the judicial officer’s impartiality might be reasonably questioned. In other situations, the judicial
officer might invite comments or concerns from counsel and/or the parties about the relationship and the judicial officer
should recuse if the judicial officer concludes that his/her impartiality might reasonably be questioned.
Opinion 04-02
3/17/2004
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Standard 3-2.9 Prompt Disposition of Criminal Charges
(a) A prosecutor should avoid unnecessary delay in the disposition of cases. A prosecutor should not fail to act with
reasonable diligence and promptness in prosecuting an accused.
(b) A prosecutor should not intentionally use procedural devices for delay for which there is no legitimate basis.
(c) The prosecution function should be so organized and supported with staff and facilities as to enable it to dispose of all
criminal charges promptly. The prosecutor should be punctual in attendance in court and in the submission of all motions,
briefs, and other papers. The prosecutor should emphasize to all witnesses the importance of punctuality in attendance in
court.
(d) A prosecutor should not intentionally misrepresent facts or otherwise mislead the court in order to obtain a continuance.
(e) A prosecutor, without attempting to get more funding for additional staff, should not carry a workload that, by reason of
its excessive size, interferes with the rendering of quality representation, endangers the interests of justice in the speedy
disposition of charges, or may lead to the breach of professional obligations.
Excerpt from Commentary to ABA Standard
“Diligence, Promptness, and Punctuality. Independent of statutory and constitutional requirements, the interests of the
public and defendants are best served by prompt disposition of criminal charges. The prophylactic effect of criminal
sanctions is dissipated by delay in bringing them to bear upon offenders …”
“The causes of court congestion and consequent delays in the processing of criminal cases are familiar ones: increasing
population, burgeoning crime rates, and greater complexity in the processes of enforcing the criminal law, including the
trial of criminal cases, as a result of judicial and legislative reinforcements of the protections of the rights of persons
accused of crime …”
“In many prosecution offices, trial assistants are charged with caseloads of as many as seventy or more cases. This is an
intolerable and unmanageable burden. Among other adverse consequences, cases are not adequately prepared and the
prosecutor tends to consent to unwarranted continuances, simply because of insufficient time to prepare for trial …”
“Whether viewed from the standpoint of the accused or the public, it is desirable that the criminal justice system try
criminal charges promptly. Moreover, perhaps no professional shortcoming is more widely resented that procrastination.
Indeed, the government’s interest often can be adversely affected by the passage of time or the change of conditions; in
extreme instances, as when a critical eyewitness disappears, the viability of the government’s case may be compromised or
destroyed …”
“Lack of punctuality in attendance at court also disturbs the orderly processes of the court and inconveniences others
waiting to be heard … Punctuality in the filing of briefs and motions is also important. As a corollary to the prosecutor’s
obligation to be punctual, it is incumbent upon the prosecutor to do everything possible to see to it that the witnesses are
also punctual in their attendance at court.”
“Delay for Tactical Advantage. For centuries, lawyers have been portrayed satirically as employing dilatory tactics with the
indulgence of judges. The problem must be attacked both on the level of improved procedures and on the level of
professional ethics. The problem must also be attacked by direct sanctions against both prosecutors and defense counsel
who exploit or abuse delay as a tactical weapon … Judges are best able to detect these abuses, and a heavy responsibility
rests upon them to separate legitimate use of procedural devices from abusive use calculated to obtain an unjustified
delay …”
“Excessive Workload. Although prosecutors, like other people, vary in their capacity for effective performance, there is a
limit to how much work any one prosecutor can effectively perform. Prosecutors have a duty to all the people who live in
their jurisdictions not to carry so heavy a caseload that the interests of justice may be compromised thereby …”
Case Law — Preaccusatorial Delay
 United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 542 (1977). Preaccusatorial delay
may violate a defendant’s right to Due Process, but the Due Process Clause —
does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor’s judgment as to
when to seek an indictment. Judges are not free, in defining “due process,” to impose on law enforcement officials our
“personal and private notions” of fairness and to “disregard the limits that bind judges in their judicial function.”

State v. Lidge, 111 Wn.2d 845, 850, 765 P.2d 1292 (1989) —
Allowing prosecutors broad discretion to delay the filing of charges until they are “completely satisfied that [they]
should prosecute and will be able promptly to establish guilt beyond a reasonable doubt”, Lovasco, 431 U.S. at 795, 97
S.Ct. at 2051, serves important societal interests. Forcing prosecutors to proceed precipitously may waste scarce resources
on cases in which the defendant’s guilt cannot be established beyond a reasonable doubt. More devastating, however, is
the risk that incomplete police investigation will result in charges being brought against innocent persons. These are costs
that society should not bear. Lovasco, at 793-94, 97 S.Ct. at 2050-51.
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 State v. Dixon, 114 Wn.2d 857, 863, 792 P.2d 137 (1990) (held that preaccusatorial delay due to
State’s desire to prosecute codefendant first in order to obtain his testimony against defendant on the issue
of intent did not violate defendant’s rights, even though it resulted in a loss of juvenile court jurisdiction).

State v. Nordby, 122 Wn.2d 258, 858 P.2d 210 (1993) —
The defendants assert that even if they must meet an initial burden of showing actual prejudice, the court can infer
prejudice from the prefiling delay alone. We reject this argument. The mere possibility of prejudice is not sufficient to
meet the burden of showing actual prejudice. A mere allegation that witnesses are unavailable or that memories have
dimmed is insufficient; the defendant “‘must specifically demonstrate the delay caused actual prejudice to his defense.’”
A court will presume prejudice if the juvenile court loses jurisdiction over a defendant as a result of a preaccusatorial
delay. Dixon, 114 Wn.2d at 860-61. None of the defendants in this case, however, alleges the loss of juvenile court
jurisdiction.

State v. Gidley, 79 Wn.App. 205, 210-11, 901 P.2d 361 (Div. 1 1995) —
It is well established that the State has no special duty to disrupt the orderly administration of the judicial process to give
special advantage in the system to any particular suspect or to assure that a case is filed in juvenile court prior to a
defendant’s eighteenth birthday. The delay in this case stemmed from standard police investigatory procedure requiring
that the accused be interviewed before the case was submitted for a filing decision. By following standard procedure, the
detective here was able to confirm with the accused an important element of the crime — intercourse. Had the detective
referred the matter for filing without attempting to interview the accused, the prosecutor would have lacked this significant
piece of information. We cannot say that an investigatory police procedure requiring that the police interview the accused
before referring a matter for filing is flawed, particularly when a premature referral could result in a wrongful charge.…
 State v. Frazier, 82 Wn.App. 576, 592, 918 P.2d 964 (Div. 2 1996) (trial court’s dismissal of adult
felony charges affirmed due to prosecutor’s negligence in failing to review report for 8 weeks prior to
defendant’s 18th birthday) —
In the present case, however, the trial court determined that both Frazier and the State have strong interests in the process
of administering justice so that fundamental conceptions of fairness are properly served. The State has no interest in
processing the accused in an unjustifiably negligent fashion. Moreover, the State’s interests in fairly administering justice
can only be served when such fairness is maintained. This reasoning is sound. The trial court did not err in concluding
that the delay was unjustified.
 State v. Brandt, 99 Wn.App. 184, 992 P.2d 1034, 9 P.3d 872 (Div. 2 2000) (When Defendant was 17
years old, he told a counselor of his sexual contact with his 7 year old cousin and other children, and
provided the cousin’s name, address and phone number which was turned over to Port Angeles police;
Defendant charged 19 months after he had turned 18 due to decision to not charge until cousin came
forward; Held no violation of due process since the delay after Defendant turned 18 was irrelevant and four
month timeframe for investigation to be conducted prior to Defendant turning 18 was proper).
 State v. Salavea, 151 Wn.2d 133, 86 P.3d 125 (2004) (First degree child rape and first degree child
molestation. Although the defendant was 15 when he committed the crimes, the investigation did not
conclude until he turned 16; thus triggering the automatic decline statute, RCW 13.04.030. Convictions
affirmed.) —
We interpret the age element of RCW 13.04.030(1)(e)(v) as age at the time of proceedings. Previous case law, the plain
language of the statute, and the legislative intent support this reading. Absent prosecutorial delay, if a defendant commits
an enumerated act when he/she is less than 16 years of age but is not charged and tried until after he/she is 16, then the
defendant must be automatically declined under RCW 13.04.030(1)(e)(v). In light of our interpretation of RCW 13.04.030,
Salavea fails to show that he would not have been automatically declined. Salavea was 16 after the justified investigatory
delay and the automatic decline statute mandated he be tried in adult court. Therefore, any subsequent prosecutorial delay
did not cause a loss of juvenile court jurisdiction, and prejudice his defense, because he was never entitled to juvenile court
jurisdiction.
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 State v. McConville, 122 Wn.App. 640, 94 P.3d 401 (Div. 1 2004), review denied, 153 Wn.2d 1025,
110 P.3d 213 (2005) (Two year delay not justify dismissal under CrR 8.3(b) where defense unable to prove
by preponderance actual prejudice rather than the mere possibility of prejudice.) —
A delay between an alleged criminal act and the filing of charges may violate the defendant's due process rights and require
dismissal. [FN1] The court balances several factors to determine whether preaccusatorial delay violates due process. The
defendant must show the delay prejudiced him, the State must give reasons for the delay, and if the *646 State is able to
justify the delay, the court balances the State's interest and the prejudice to the defendant. [FN2] The court will only reach
the second part of the test if the defendant established prejudice. [FN3] Here, the trial court found that McConville failed to
demonstrate prejudice.
We review a trial court's prejudice analysis for manifest abuse of discretion. [FN4] "Discretion is abused when the trial
court's decision is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons." [FN5] To
succeed on a preaccusatorial delay claim, a defendant must show actual, rather than speculative, prejudice. [FN6] "The
mere possibility of prejudice is not sufficient to meet the burden of showing actual prejudice." [FN7] The trial court is in
the best position to determine whether a defendant suffered actual prejudice. [FN8]
In this case, McConville argues that he suffered actual prejudice because his witness died before the State filed the charge.
According to McConville, Kontos would have contradicted Strick's declaration by testifying that Strick directed
McConville to inflate invoices and use the excess money to create a slush fund for the business. But this testimony would
have been irrelevant for two reasons. First, Kontos would have testified only that Strick instructed *647 McConville to
place $20,000 into a slush fund. Kontos would not have been able to testify that McConville was authorized to place
$180,000 into the fund or that he used the entire $180,000 for business purposes. And second, even if Strick instructed
McConville to create the slush fund, that does not in any way justify McConville's actions. The trial court properly
determined that McConville failed to demonstrate prejudice and did not err by denying McConville's motion to dismiss for
preaccusatorial delay.
Nor did the court err when it denied McConville's motion to dismiss under CrR 8.3(b). CrR 8.3(b) allows a court to dismiss
a criminal prosecution when arbitrary action or governmental misconduct prejudices the defendant's rights in a way that
materially affects his right to a fair trial. McConville argues that the State's charging delay deprived him of Kontos'
testimony and thus of a fair trial. But to succeed with this claim, McConville must prove by a preponderance of the
evidence that he suffered actual, rather than speculative, prejudice that affected his right to a fair trial. [FN9] And, as
discussed above, McConville did not prove that he suffered actual prejudice from the State's delay because Kontos'
testimony would not have been a defense to the charged crime.
Time for Trial. See Also Speedy Trial.
 Time for Trial, CrR 3.3 and CrRLJ 3.3, effective September 1, 2003. Washington’s speedy trial rules
were substantially rewritten based upon recommendations of a Time for Trial Task Force created to review
Washington’s rules and case law. The new rules are effective September 1, 2003. It will take years of
litigation to determine which if any of the Speedy Trial cases discussed below survive the new Time for
Trial rules. Cases interpreting the new rules will be put in the Time for Trial section, while cases discussing
the old Speedy Trial rules will be included in the Speedy Trial section.
Time for Trial — Continuance — Non-Trial Hearings — Trial Clock Continues to
Run
 CrRLJ 3.3(e)(3) and CrRLJ 3.3(f) (and their Superior Court counterparts CrR 3.3(e)(3) and CrRR
3.3(f)) provide that delay granted by the court pursuant to section (f) (a continuance) is excluded in
computing the time for trial. CrRLJ 3.3(f) only discusses continuances of the trial date. This is a significant
change from the previous speedy trial rule, which permitted tolling of speedy trial for the continuance of
any hearing. Prosecutors need to be very careful if a non-trial hearing is continued (arraignment, pretrial,
etc.) absent a time for trial waiver since the trial clock is still ticking.
(f) Continuances. Continuances or other delays may be granted as follows:
(1) Written Agreement. Upon written agreement of the parties, which must be signed by the defendant or all defendants, the
court may continue the trial date to a specified date.
(2) Motion by the Court or a Party. On motion of the court or a party, the court may continue the trial date to a specified
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date when such continuance is required in the administration of justice and the defendant will not be prejudiced in the
presentation of his or her defense. The motion must be made before the time for trial has expired. The court must state on
the record or in writing the reasons for the continuance. The bringing of such motion by or on behalf of any party waives
that party’s objection to the requested delay.
[Query. The old 2003 Speedy Trial rule continuance rule required that the “defendant will not be
substantially prejudiced in the presentation of the defense.” Former CrR 3.3(h)(2) and CrRLJ 3.3(h)(2). The
new Time for Trial rule only requires that the “defendant will not be prejudiced in the presentation of his or
her defense.” The deletion of the word “substantially” appears to mean that any defense prejudice will
justify denial of the trial continuance motion, whereas previously only “substantial” prejudice justified
denial of the continuance. Does this put a much higher burden on the prosecution to obtain a continuance of
the trial date over defense objection?]
Case Law — Speedy Arraignment or Trial — Prosecutor Knowledge of Speedy
Clock Running
 State v. Rose, 110 Wn.App. 878, 43 P.3d 48, review denied, 147 Wn.2d 1016, 56 P.3d 991 (Div. 2
2002) (Defendant originally charged in Kitsap District Court with attempted rape three. Twelve days later,
he charged in superior court with indecent liberties, and the district court complaint dismissed without
prejudice. The next day, defendant arraigned, and trial date set assuming superior court arraignment date
commenced speedy trial. No mention by the state of the district court charging, and no objection by the
defense at the time the trial date was set. The defendant orally moved to dismiss prior to the scheduled trial
date. The trial court granted the motion. Trial court reversed, and case remanded for trial.)
We disagree with this reasoning. A prosecutor should disclose to the superior court any knowledge that he or she has
concerning district court proceedings, regardless of how the prosecutor's knowledge compares to the defense's knowledge
(i.e., regardless of whether the prosecutor's knowledge is "superior" or "inferior" to the defense's knowledge). If a
prosecutor fails to do that, however, the failure does not affect the application of CrR 3.3(f). The purpose of that rule is to
motivate both parties to aid the court, regardless of what the other party knows, discloses, or otherwise does. For that
reason, it applies by its terms when either party, for any reason, fails to object to the untimeliness of a trial date within the
prescribed ten days. It affects a party based on what that party does or fails to do, not on what the other party does or fails
to do. Holding that Rose waived his right to object by not complying with CrR 3.3(f), we conclude that the trial court erred
by granting his motion.
Case Law — Speedy Arraignment — Delay in Bringing Defendant Before Court —
Striker, Peterson and Anderson Rules
 State v. Striker, 87 Wn.2d 870, 875, 557 P.2d 847 (1976) (The Striker Rule — If a long and
unnecessary delay occurs in bringing a defendant who is amenable to process before the court for his or her
first appearance, CrR 3.3’s 104-day time-for-trial period [90 days plus 14 days of constructive arraignment]
is deemed to commence at the time the information or complaint was filed.).
 State v. Peterson, 90 Wn.2d 423, 431, 585 P.2d 66 (1978) (The Peterson Rule — Speedy trial begins
to run on all crimes based on the same conduct or arising out of the same criminal incident from the time
the defendant is first held to answer for any of the charges) —
…The new assault charge filed in 1977 was also properly dismissed by the trial court. The judge determined that, because
the new charge arose out of the same offense and incident as the old one, the time limits of CrR 3.3 began running on the
new offense as well as the old one in January 1975. CrR 3.3 does not expressly so provide. However, because we find
therein no provisions which contemplate separate charges from the same conduct filed years apart, we look to ABA
standards to provide supplemental interpretation. Standard 2.2 recommends that the time within which trial must be held
should begin on all crimes “based on the same conduct or arising from the same criminal incident” from the time the
defendant is held to answer any charge with respect to that conduct or episode. CrR 4.3(c), particularly subsection (3),
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appears supportive of the ABA standard here, as it expresses a preference for a single disposition of all charges arising
from one incident. We apply that standard here.
 State v. Anderson, 121 Wn.2d 852, 864, 855 P.2d 671 (1993) (The Anderson Rule — Prosecutors have
a duty to bring defendant who is in custody out of state back to Washington upon learning of defendant’s
request to do so under Interstate Agreement on Detainers.) —
…[F]undamental fairness requires that Washington prosecuting authorities act in good faith and with due diligence in
bringing a defendant to trial in this state once it has been brought to their attention that the defendant “is detained in jail or
prison outside the state of Washington or in a federal jail or prison” and the defendant is “subjected to conditions of release
not imposed by a court of the State of Washington”. CrR 3.3(g)(6).
Good faith and due diligence requires that Washington prosecuting authorities undertake to obtain the presence of a
defendant for trial in this state by extradition or interstate compact. The Interstate Agreement on Detainers should be
utilized for filing detainers so that defendants may avail themselves of demands for speedy trial. Failure of the State to do
this results in inapplicability of the exclusion from computation of the speedy trial period under CrR 3.3(g)(6) and possible
dismissal with prejudice under CrR 3.3(i).
 State v. Fladebo, 113 Wn.2d 388, 391-94, 779 P.2d 707 (1989) (defendant arraigned on DUI charge in
Mt. Vernon Municipal Court on October 27, 1986, and charged with possession of heroin in Skagit County
Superior Court on February 17, 1987; Held: Peterson rule does not apply because the two different charges
arose from “different jurisdictions with separate prosecutorial responsibilities.”).
 State v. Greenwood, 120 Wn.2d 585, 600-1, 845 P.2d 971 (1993) (application of the Striker rule
mandates that a prosecutor has a duty to exercise good faith and due diligence to make reasonable efforts to
obtain defendant’s timely presence before court to answer for the charge previously filed; criminal speedy
trial rules prohibit long and unnecessary periods of delay in brining defendants before the court to answer
charges filed against them; defendant waives challenge if failure to timely object or delay a result of
defendant’s fault or connivance).
 State v. Bryant, 74 Wn.App. 301, 872 P.2d 1142 (Div. 1 1994) (Defendant received notice of an
arraignment date and called the prosecutor's office to reschedule. He was informed of a new date, but failed
to appear at the rescheduled arraignment. A bench warrant was issued, and authorities arrested him more
than a year later. Held that constructive arraignment date not required due to fault of defendant because
“the State was entitled to assume that Bryant was well aware of his arraignment date and that his failure to
appear was volitional.”)
 Seattle v. Bonifacio, 127 Wn.2d 482, 900 P.2d 1105 (1995) (issuance of citation, regardless of whether
it is subsequently filed, starts running of clock under time for trial rule; Held: prosecution of defendant was
barred as proceedings did not commence within 110 days of issuance of citation even though less than 110
days had elapsed since filing of complaint by city attorney).
 State v. Jones, 79 Wn.App. 7, 11-13, 901 P.2d 1057 (Div. 1 1995), review denied, 128 P.2d 1009, 910
P.2d 481 (1996) (Held: prosecutor’s failure to take additional steps after summons sent by certified mail
was returned as “unclaimed” required dismissal) —
In State v. Williams, 74 Wn.App. 600, 875 P.2d 1222 (1994), the State sent a summons to the defendant by certified mail
ordering him to appear for arraignment on a charge of first degree theft. Several facts parallel this case. Although the State
possessed the defendant’s correct address, the summons was returned as “unclaimed.” Also, the defendant never received
the summons and he remained unaware of the charge until he was arrested on the bench warrant over 3 years later. Finally,
once the summons was returned, neither the investigating agency nor the prosecutor took any further steps either to notify
the defendant of the charge or to serve the bench warrant.
This court rejected the State’s argument that under [State v. Perry, 25 Wn.App. 621, 612 P.2d 4 (Div. 1 1980)] it
exercised due diligence by sending a letter to the defendant’s last known address. The court distinguished Perry because in
that case the defendant knew of the pending charges and he changed his location without providing the State with accurate
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information of his whereabouts. In those circumstances, sending a letter to his last known address constituted due
diligence. But in Williams, as here, the defendant did not know of the charges. Therefore, the court rejected the “the bald
assertion made by the State that, after a summons is ‘properly sent’ and the defendant fails to respond, the prosecutor is not
required take further steps to locate the defendant....” Williams, at 604. The court affirmed the trial court’s dismissal of
the charge.
In State v. Kitchen, 75 Wn.App. 295, 877 P.2d 730 (Div. 3 1994), the case turned upon whether defendant had actual
notice. Although the summons was mailed to his correct address, the defendant filed an affidavit averring that he did not
receive it. The court noted: “The State may assume, and the trial courts should presume, that a letter sent by regular firstclass mail to the defendant’s correct address and not returned to the sender was delivered, and that the defendant was given
notice of the charge filed against him.” Kitchen, at 298. But the presumption is rebuttable. Thus, if a defendant convinces
the court that he or she was without fault in failing to appear at arraignment, the court must then examine the State’s
diligence in attempting to notify the defendant. Because the trial court failed to take facts on this specific issue, this court
remanded for a finding regarding whether defendant received actual notice of the original arraignment.
This court issued several warnings during the course of its decision. It noted that because the actual-notice presumption
is rebuttable, “the State should exercise caution in failing to take any further steps to notify defendants who fail to appear at
their scheduled arraignments.” Kitchen, at 298, n. 1. Also, the court was “not inclined” to agree that simply mailing a
notice to a correct address constitutes due diligence. Instead, other factors, including other information regarding
defendant’s location which the State possesses, may have an impact on the due diligence analysis. Kitchen, at 299-300.
In this case, the State diligently sent the summons by certified mail to Jones ordering him to appear for arraignment.
This summons was returned as “unclaimed.” Because it was not “rejected” or “undeliverable,” the State was alerted that
Jones simply did not receive it. When Jones failed to appear at arraignment, the State took no further steps to either notify
Jones of the charge or to serve the bench warrant. Yet, the State possessed his correct address and a message telephone
number. The State knew that his employment frequently took him out of state, but that the absences were temporary and
that his residence was in Seattle. In these circumstances, the State failed to diligently act upon the information it had
regarding Jones’ whereabouts.
 State v. Simon, 84 Wn.App. 460, 464, 928 P.2d 449 (Div. 1 1996) (prosecutor can defer to another
state to file its detainer first, but prosecutor’s failure for nearly a year to inquire about defendant’s
availability for trial after resolution of charges in another state breached duty to exercise good faith and due
diligence in attempt to secure defendant’s presence, and, thus, speedy trial provision excluding period of
detention in another state was inapplicable; Held: prosecution dismissed).
 State v. Harris, 130 Wn.2d 35, 39-44, 921 P.2d 1052 (1996) (defendant prosecuted on NVOL charge
in December 1993, and for taking a motor vehicle in February 1994 for facts arising out of same incident;
Held: taking motor vehicle charge properly dismissed due to speedy trial violation) —
…JuCR 7.8 does not expressly address situations involving multiple charges that stem from the same criminal conduct or
criminal episode. Defendant is correct, however, when he claims State v. Peterson, 90 Wn.2d 423, 585 P.2d 66 (1978),
supports his reading of JuCR 7.8.
In 1975, Peterson was charged in district court with assault for shooting at police officers when fleeing
from a bank robbery. Peterson was tried and convicted on federal bank robbery charges, but the State failed to
prosecute the assault charge. While in the federal penitentiary, Peterson successfully moved to dismiss the
assault charge under the Interstate Agreement on Detainers Act, RCW 9.100. In 1977, the State filed two new
assault charges against Peterson in superior court, with both charges stemming from the same shooting incident.
One charge was identical to the previously dismissed 1975 charge, and the other assault charge merely named a
different police officer as the victim. This court dismissed the second charge for violation of the speedy trial
rule:
The new assault charge filed in 1977 was also properly dismissed by the trial court. The judge determined
that, because the new charge arose out of the same offense and incident as the old one, the time limits of CrR
3.3 began running on the new offense as well as the old one in January 1975. CrR 3.3 does not expressly so
provide. However, because we find therein no provisions which contemplate separate charges from the same
conduct filed years apart, we look to ABA standards to provide supplemental interpretation. Standard 2.2
recommends that the time within which trial must be held should begin on all crimes “based on the same
conduct or arising from the same criminal incident” from the time the defendant is held to answer any charge
with respect to that conduct or episode. CrR 4.3(c), particularly subsection (3), appears supportive of the ABA
standard here, as it expresses a preference for a single disposition of all charges arising from one incident. We
apply that standard here.
Peterson, 90 Wn.2d at 431 (emphasis added) (quoting ABA Standards Relating to Speedy Trial Std. 2.2 (Approved Draft
1968)). The ABA standard cited in Peterson currently exists as 2 American Bar Ass’n, Standards for Criminal Justice Std.
12-2.2 (2d ed. 1980).
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The ABA standard adopted by Peterson has been cited as controlling law in many subsequent cases. See, e.g., State v.
Fladebo, 113 Wn.2d 388, 392, 779 P.2d 707 (1989); State v. Anderson, 94 Wn.2d 176, 183, 616 P.2d 612 (1980); State v.
Austin, 59 Wn.App. 186, 201, 796 P.2d 746 (1990); State v. Bradley, 38 Wn.App. 597, 599, 687 P.2d 856, review denied,
102 Wn.2d 1024 (1984). Even though the ABA standard adopted in Peterson cannot be found in CrR 3.3, standard 12-2.2
has been incorporated into the rules through Peterson ‘s adoption of the standard and Fladebo ‘s continued adherence to it.
CrR 1.1 (“These rules ... shall be interpreted and supplemented in light of the common law and the decisional law of this
state.” (emphasis added)); see also State v. Greenwood, 120 Wn.2d 585, 595, 845 P.2d 971 (1993).
The juvenile court speedy trial rule is to be read in conjunction with the superior court rules where consistent. JuCR
1.4(b) (“The Superior Court Criminal Rules shall apply in juvenile offense proceedings when not inconsistent with these
rules and applicable statutes.”); State v. Mack, 89 Wn.2d 788, 792-93, 576 P.2d 44 (1978); State v. Wilcox, 71 Wn.App.
116, 118, 856 P.2d 1104 (1993). Under JuCR 1.4(b), the ABA standard adopted by Peterson in the context of CrR 3.3
equally applies to JuCR 7.8.
In its supplemental brief, the State wisely concedes the NVOL and TMV arose from the same criminal conduct.
Accordingly, under the Peterson rule, the State had to bring Defendant to trial on the TMV charge within 60 days after
Defendant was held to answer on the NVOL charge. The speedy trial period for the TMV expired on February 21, 1994.
The TMV charge was filed on May 10, 1994, 139 days after Defendant appeared in district court on the NVOL charge, and
long after the speedy trial period expired.
The Court of Appeals declined to apply the Peterson rule to Defendant’s situation, basing its reasoning on language in
State v. Fladebo, 113 Wn.2d 388, 779 P.2d 707 (1989). The court held Peterson does not apply in situations where
multiple but related criminal charges are filed in different courts. State v. Harris, No. 35205-9-I, slip op. at 9 (Wn.App.
July 31, 1995). Fladebo does not support the Court of Appeals’ holding in this case.
In Fladebo the defendant was involved in a car accident, and she appeared to be under the influence of drugs at the
scene. An officer arrested her and gave her a municipal court citation for driving while under the influence (DWI), in
violation of the local municipal code. The officer also found in the defendant’s purse a drug kit containing four
hypodermic needles, a spoon, and some cotton covered with brown residue. These items were sent to a crime laboratory
for testing. Fladebo, 113 Wn.2d at 390.
On October 27, 1986, Fladebo was arraigned in the local municipal court on the DWI charge. On December 2, 1986, the
county prosecutor received the crime lab report indicating that the substance in Fladebo’s purse was heroin. Some time
later, on February 17, 1987, the prosecutor finally charged defendant in superior court with felony possession of heroin.
She moved to dismiss this second charge for violation of the speedy trial rule. Her motion was denied and she was found
guilty. Fladebo, 113 Wn.2d at 391.
Fladebo acknowledged the Peterson rule, but the court held the standard did not apply to the facts because the two
different charges arose from “different jurisdictions with separate prosecutorial responsibilities.” Fladebo, 113 Wn.2d at
392. Fladebo’s DWI charge was heard in municipal court, and the municipal court had exclusive jurisdiction over that
charge. RCW 3.46.030 (“A municipal department shall have exclusive jurisdiction of matters arising from ordinances of
the city....”). The illegal possession charge was heard in superior court where it was prosecuted by the county prosecutor
on behalf of the state.
The facts in this case are distinguishable from the facts of Fladebo. Defendant’s two charges were prosecuted by the
same prosecutorial authority, the King County Prosecuting Attorney, and both charges were brought in state courts. Even
though the NVOL was filed in district court and the TMV was filed in superior court, the superior court has jurisdiction
over both charges. See RCW 2.08.010 (superior court has original jurisdiction over all felonies and all misdemeanors not
otherwise provided for by law); RCW 3.66.060 (district court has concurrent jurisdiction with superior court over all
misdemeanors).
Fladebo did not signal a relaxation of the Peterson rule, as suggested by State v. Wilton, 57 Wn.App. 606, 608, 789 P.2d
800, review denied, 115 Wn.2d 1005 (1990); rather, Fladebo merely indicates the Peterson rule does not apply to
situations where multiple charges are brought in different courts with exclusive jurisdictions, and the charges are
prosecuted by different prosecutorial authorities. Since the two charges filed against Defendant were prosecuted by the
same authority, and the superior court had original jurisdiction over both charges, we hold the Peterson rule, embodying
ABA standard 12-2.2, applies to this case.
Fladebo did not purport to overturn or limit prior case law involving the Peterson rule, and prior case law supports our
application of the rule to the facts of this case. Before Fladebo was decided, courts consistently applied the Peterson rule
to multiple charges, even when the charges were split between district and superior courts. See State v. Peterson, 90
Wn.2d 423, 585 P.2d 66 (1978); State v. Bradley, 38 Wn.App. 597, 599, 687 P.2d 856 (remanding for computation of the
speedy trial time under the Peterson rule), review denied, 102 Wn.2d 1024 (1984); State v. Wilke, 28 Wn.App. 590, 594,
624 P.2d 1176, review denied, 95 Wn.2d 1026 (1981).
The purpose of JuCR 7.8 “is to ensure prompt resolution of juvenile offense proceedings, which in turn promotes
rehabilitation of the juvenile offender.” State v. Wilcox, 71 Wn.App. 116, 119, 856 P.2d 1104 (1993). See also State v.
Adamski, 111 Wn.2d 574, 761 P.2d 621 (1988). “While the specific rights conferred by the rule are not of constitutional
magnitude, the rule emanates from state and federal constitutional guaranties.” Adamski, 111 Wn.2d at 582 (citations and
footnote omitted). Court rules should be construed to foster the purposes for which they were enacted. State v.
Greenwood, 120 Wn.2d 585, 593, 845 P.2d 971 (1993). Unless the speedy trial rule is strictly applied, “the right to a
speedy trial as well as the integrity of the judicial process, cannot be effectively preserved.” State v. Striker, 87 Wn.2d
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870, 877, 557 P.2d 847 (1976). “This court has consistently interpreted CrR 3.3 so as to resolve ambiguities in a manner
which supports the purpose of the rule in providing a prompt trial for the defendant once prosecution is initiated.” State v.
Edwards, 94 Wn.2d 208, 216, 616 P.2d 620 (1980) (citations omitted).
Applying the Peterson rule to this case serves the purpose of the speedy trial rule. The policy behind the Peterson rule is
similar to the policy behind mandatory joinder. Peterson, 90 Wn.2d at 431; State v. McNeil, 20 Wn.App. 527, 532, 582
P.2d 524 (1978). Joinder principles are designed to protect defendants from
“successive prosecutions based upon essentially the same conduct, whether the purpose in so doing is to hedge
against the risk of an unsympathetic jury at the first trial, to place a ‘hold’ upon a person after he has been
sentenced to imprisonment, or simply to harass by multiplicity of trials.”
McNeil, 20 Wn.App. at 532 (footnote omitted) (quoting Commentary to ABA Standards Relating to Joinder and Severance
§ 1.3, at 19 (Approved Draft 1968)). The Peterson rule prevents prosecutors from harassing a defendant by bringing
successive charges over a long span of time even though all charges stem from the same criminal episode. When multiple
charges stem from the same criminal conduct or criminal episode, the State must prosecute all related charges within the
speedy trial time limits. This ensures a prompt resolution of all criminal matters that stem from one episode. If the State
needs extra time to complete an investigation, the speedy trial rule allows for continuances in such circumstances. See
JuCR 7.8(e)(2)(ii).
Defendant was held to answer for his NVOL on December 22, 1993. He began to serve out the conditions of his
sentence and work towards rehabilitation. The 60-day juvenile court speedy trial limit ran out on February 21, 1994.
Then, 78 days later, the State charged Defendant with the TMV. Defendant was found guilty on the TMV charge on July
21, 1994--150 days after the speedy trial period expired and 237 days after Defendant was first arrested. The late TMV
charge blatantly violates the spirit of the speedy trial rule.
 State v. Hudson, 130 Wn.2d 48, 57-58, 921 P.2d 538 (1996) (defendant’s were in Arizona and Puerto
Rico when charges filed; Held: Striker rule applies only when the defendant is “amenable to process”, and
does not apply when an accused is out of this state and not incarcerated; prosecutor’s duty under Anderson
to use Interstate Agreement on Detainers Act when defendant is known to be detained in jail outside of this
state will not be extended to cases in which the defendant is out of state and not in custody, even though
prosecutor can seek extradition under Uniform Criminal Extradition Act.) —
…The primary reason for our decision in Anderson was that if the State does not file a detainer, the incarcerated defendant
has no possible way to return to the state for a timely trial. We decline to extend the Anderson ruling to cases in which the
defendant is not in custody.
We recognize that a prosecutor of this state may seek extradition under the Uniform Criminal Extradition Act. However,
since an out-of-state accused is not “amenable to process” in the usual sense of being amenable to arrest or summons by
the state of Washington, we decline to impose a duty on the State in every case to attempt to extradite a defendant from
another jurisdiction. We conclude the State does not have such a duty under CrR 3.3.
The defense asks this court to impose a duty on the State under CrR 3.3 to send a letter or notification of charges to an
out-of-state defendant when the defendant’s address is known. We decline to add such a requirement to CrR 3.3 but note
that it would be a prudent practice for purposes of a constitutional speedy trial challenge. In the present cases, the
defendants raise only rule challenges to this Court. The time for trial provisions of CrR 3.3 are procedural rules providing
defendants with a right which is separate from the constitutional right to a speedy trial. Greenwood, 120 Wn.2d at 611
(citing State v. White, 94 Wn.2d 498, 501, 617 P.2d 998 (1980)). Whether the State had sent a notice to a defendant’s
known out-of-state address may be relevant to a constitutional speedy trial challenge.
CONCLUSION
The speedy trial rule, CrR 3.3, does not establish a set number of days between charging and arraignment for a defendant
who is not held in custody. The Striker/Greenwood rule which addresses that time period only applies when a defendant is
amenable to process. A defendant is not amenable to process while absent from the state. Therefore, the Striker rule,
which requires diligence in bringing a defendant before the court, does not apply to the periods of time while a defendant is
out of state and not in custody. The periods of time while Hudson and Cintron-Cartegena were outside of the state of
Washington were properly excluded from the time for trial calculation set by CrR 3.3. We therefore affirm the Court of
Appeals in both cases.
 State v. Stewart, 130 Wn.2d 351, 922 P.2d 1356 (1996) (defendant left state to attend school in
Arizona after receiving permission from probation officer; defendant gave probation new address and
maintained contact, defendant charged with unrelated felony after he left for Arizona and when he failed to
appear, a warrant was issued, defendant arrested on warrant in Arizona but released since Washington
would not extradite from Arizona; Held: prosecution did not have to exercise good faith and due diligence
even though probation officer knew location of defendant since Striker rule does not apply when a
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defendant is not amenable to process, conviction affirmed).
 State v. Monson, 84 Wn.App. 703, 710, 712, 929 P.2d 1186, review denied, 133 Wn.2d 1015 (Div. 3
1997) (defendant brought to court 13 years after charging documents filed; Held: prosecution’s good faith
and due diligence in bringing defendant to court is irrelevant since defendant resided in New York for 13
years, Striker rule not triggered since defendant not amenable to process) —
…It is clear after Stewart and Hudson that while Mr. Monson was living in New York, he was not amenable to process and
the Striker rule did not apply. As in Stewart, neither the State nor Mr. Monson utilized the IAD and he was only briefly
detained while the New York officers checked on extradition. Accordingly, his CrR 3.3 speedy trial period began when he
first appeared in Washington…
Since Mr. Monson failed to report to his probation officer and left the jurisdiction without permission, his probationary
period was tolled until he was returned to Washington in 1994. Gillespie v. State, 17 Wn.App. 363, 366, 563 P.2d 1272,
review denied, 89 Wn.2d 1008 (1977). His probation revocation hearing was continued until after trial on the rape charges.
As long as Mr. Monson is being held on the criminal charges, it is permissible and appropriate to delay the revocation of
probation hearing. State v. Valentine, 20 Wn.App. 511, 514-15, 580 P.2d 1119 (1978).
 State v. Duffy, 86 Wn.App. 334, 936 P.2d 444 (Div. 3 1997) (Defendant booked in jail on felony elude
and was given a citation charging him with DUI in Spokane Municipal Court and setting an arraignment
date of April 24. The city attorney thereafter decided not to prosecute the DUI, referred the matter to the
county prosecutor, and sent a letter to defendant and his attorney notifying them of his decision to decline
prosecution. The municipal court arraignment date was canceled by the city attorney, and the municipal
case was “closed” on April 20. The county prosecutor filed felony elude, DUI and hit and run-attended
charges in superior court on August 21; Held: county prosecutor prohibited from charging DUI and hit and
run-attended gross misdemeanor charges since Spokane Municipal Court case was not dismissed, and
speedy trial ran prior to county prosecutor filing charges in superior court) —
The issue in this case is whether an order of dismissal without prejudice must be entered in municipal court before the
speedy trial period is tolled, or whether this period is tolled by events which the State argues are “equivalent” of a
dismissal. It is clear that nothing less than an order of dismissal without prejudice stops the speed trial clock until such
time as charges are refiled. CrRLJ 3.3(g)(4) provides that the time between the dismissal of a charge and the defendant’s
arraignment or rearraignment in court following the refiling of the same charge” will be excluded from the computation for
a speedy trial. CrR 3.3(c)(2) is quite specific in its requirement that the entry of a order of dismissal is required before the
speedy trial clock will be stopped.…
…When the city decided not to prosecute the DWI charge, it had an obligation to have the matter dismissed from
municipal court as required by the terms of CrRLJ 3.3(g)(4) and CrR 3.3(c)(2)(ii). Mr. Duffy should not be required to
know what the city attorney was thinking when he sent the letter indicating that the city declined to prosecute the case.
Similarly, Mr. Duffy should not be required to obtain and decipher notations in court records that may not have been
authorized by a judge.…
The State contends the hit-and-run charge occurred in the course of the eluding incident. The eluding charge was within
the exclusive jurisdiction of the superior court and was timely. If the eluding charge was timely, the State argues, then the
hit-and-run charge was also timely.
DWI and hit-and-run attended are gross misdemeanors which are violations of city ordinances and are within the
jurisdiction of the municipal court.…
When multiple offenses arise out of the same criminal episode or transaction, there can only be one triggering date for
calculating the time for trial of all offenses. State v. Erickson, 22 Wn.App. 38, 44, 587 P.2d 613 (1978). The speedy trial
period should begin for all crimes “‘based on the same conduct or arising from the same criminal incident’ from the time
the defendant is held to answer any charge with respect to that conduct or episode.” State v. Peterson, 90 Wn.2d 423, 431,
585 P.2d 66 (1978) (quoting ABA Standards Relating to Speedy Trial, Std. 2.2 (Approved Draft, 1968)) This standard
does not apply in situations where multiple charges are brought in different courts with exclusive jurisdiction by different
prosecutorial authorities. State v. Fladebo, 113 Wn.2d 388, 392, 779 P.2d 707 (1989). These cases interpret superior court
joinder rule CrR 4.3. The Peterson rule has recently been applied in juvenile court proceedings pursuant to JuCR 1.4(b).
State v. Harris, 130 Wn.2d 35, 921 P.2d 1052 (1996).
The charges against Mr. Duffy all arise out of the events that occurred on the night of April 9, 1995. The State argues
the conduct that resulted in the hit-and-run charge was related to the conduct that served as the basis of the eluding charge
rather than the conduct that served as the basis of the DWI charge. The State cites no authority to support this narrow
interpretation. All of the facts necessary to charge Mr. Duffy with hit-and-run were available to the city attorney
immediately and to the State as soon as the case was forwarded to them. This is not a situation where prosecutors needed
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time for drug analysis or to obtain additional information before a charge could be brought against the defendant on some
part of his conduct arising out of one incident.…
 State v. Roman, 94 Wn.App. 211, 216-18, 972 P.2d 511, review denied, 138 Wn.2d 1014 (Div. 2 1999)
(Defendant charged and an arrest warrant was obtained. Defendant arrested in California for California
forgery charge and declined to waive extradition. The extradition documents were late getting to California,
so fugitive from justice complaint dismissed. Defendant convicted of California forgery, and served time in
California. California released defendant “by mistake” and he was eventually arrested in Idaho, where he
waived extradition. Trial court dismissal under Striker rule reversed, and remanded for trial.) —
State v. Anderson extended Greenwood to some but not all out-of-state defendants. Implicitly, Anderson held that a
defendant is amenable to process when he or she is incarcerated in an out-of-state or federal jail or prison; the prosecutor is
aware of that; and the defendant is actively demanding a speedy trial. Explicitly, Anderson held that the State fails to
exercise due diligence if, under the circumstances just described, it ignores the defendant’s demand. Anderson also held
that these requirements inhere in CrR 3.3(g)(6).
State v. Hudson and State v. Stewart partially clarified Anderson by holding that a defendant is not amenable to process
while at large in another state. In that situation, then, the State is not required to exercise due diligence.
To apply these principles here, we address two questions. (1) Was Roman amenable to process while in the Stanislaus
County jail? (2) If so, did the State exercise due diligence to bring him back? In addressing the first question, we
separately discuss (a) whether Roman was amenable to process from when he was jailed to when California issued its
extradition warrant, and (b) whether Roman was amenable to process from when California issued its warrant to when he
finished his Stanislaus County sentence.
In our view, Roman was not amenable to process from when he was jailed to when California issued its extradition
warrant. In State v. Lee, we held that an out-of-state defendant is not amenable to process until extradition procedures are
completed. In State v. Stewart, the Washington Supreme Court expressly agreed, and in State v. Hudson, the same court
described Lee with approval. An exception exists when, as in Anderson, an incarcerated out-of-state defendant is
affirmatively seeking to waive extradition and return to this state for speedy trial. That exception is not pertinent here,
however, because Roman was exercising, not waiving, his extradition rights. It follows that Roman was not amenable to
process before the extradition process culminated in an extradition warrant.
Roman also was not amenable to process after the extradition warrant issued, but before he finished his Stanislaus
County sentence. A person serving time on an out-of-state sentence is not amenable to process until he or she finishes the
out-of-state sentence, unless, as in Anderson, the person is actively seeking to waive his or her extradition rights and return
here. Because Roman was not actively seeking his return, he was not amenable to process during any part of his stay in the
Stanislaus County jail.
 State v. Ross, 98 Wn.App. 1, 4-7, 981 P.2d 888, 990 P.2d 962 (Div. 2 1999), review denied, 140 Wn.2d
1022, 10 P.3d 405 (2000) (Peterson, Fladebo, and Harris case. Defendant arrested for DUI, DWLS2 and
possession of meth. Defendant charged and arraigned on DUI and DWLS2, but no charges filed on meth
charge pending receipt of law reports. Lab report completed, and one month later defendant pled guilty to
DUI and DWLS2 charges. Two days before speedy trial would have expired on misdemeanor charges,
State filed possession of meth felony. At arraignment held 20 days after charges filed, defendant objected
to speedy arraignment/trial, and moved to dismiss. Case remanded for further findings concerning reason
for State’s delay in filing meth charge.) —
Under CrR 3.3, a defendant has a right to be brought to trial for the crime charged within 90 days of his or her
arraignment if the defendant is not being held in custody. The right to a speedy trial under this rule is a fundamental right.
See State v. White, 23 Wash.App. 438, 440, 597 P.2d 420 (1979), aff’d, 94 Wash.2d 498, 617 P.2d 998 (1980); see State
v. Breaux, 20 Wash.App. 41, 44, 578 P.2d 888 (1978) (right to prompt inquiry into criminal charges is fundamental and
duty of charging authorities is to provide prompt trial). Although the court is ultimately responsible for ensuring
compliance with the speedy trial rule, the State is primarily responsible for bringing the defendant to trial within the speedy
trial period. State v. Wilks, 85 Wash.App. 303, 309, 932 P.2d 687, review denied, 133 Wash.2d 1002, 943 P.2d 663
(1997); see State v. Jenkins, 76 Wash.App. 378, 383, 884 P.2d 1356 (1994) (State has primary duty to see that defendant
is tried in timely fashion), review denied, 126 Wash.2d 1025, 896 P.2d 64 (1995).
In bringing a defendant to trial, the right to a speedy trial imposes upon the prosecution a duty of good faith and due
diligence. State v. Stewart, 78 Wash.App. 931, 935, 899 P.2d 1283 (1995), aff’d, 130 Wash.2d 351, 922 P.2d 1356
(1996); see State v. Anderson, 121 Wash.2d 852, 864, 855 P.2d 671 (1993) (fundamental fairness requires that
prosecuting authorities act in good faith and with due diligence in bringing a defendant to trial). Thus, the failure to
comply strictly with the speedy trial rule requires outright dismissal, regardless of whether the defendant shows prejudice.
State v. Ralph Vernon G., 90 Wash.App. 16, 20-21, 950 P.2d 971 (1998); see State v. Teems, 89 Wash.App. 385, 388,
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948 P.2d 1336 (1997) (defendant need not show prejudice from denial of right to speedy trial), review denied, 136
Wash.2d 1003, 966 P.2d 902 (1998).
Finally, when multiple crimes arise from the same criminal episode, the time within which trial must begin on all crimes
is calculated from the time that the defendant is held to answer any charge with respect to that episode. State v. Peterson,
90 Wash.2d 423, 431, 585 P.2d 66 (1978); see also State v. Harris, 130 Wash.2d 35, 42, 921 P.2d 1052 (1996). …
Here, the methamphetamine charge stemmed from the same alleged criminal episode involving the driving charges to
which Ross pleaded guilty. Thus, the State was under an obligation to bring the defendant to trial on all charges for
conduct arising from his arrest on June 7, 1997, in good faith and with due diligence. The State’s decision whether to
charge Ross with possession of the substance the trooper found in Ross’s vehicle, however, must be based upon sufficient
evidence, which under these facts required laboratory testing.
From the record before us, we cannot determine whether the State’s reasons for its delay in filing the unlawful
possession charge until September 5, 1997, when the laboratory report was released on July 18, 1997, were
“understandable and justified.” Therefore, we remand to the trial court for further proceedings consistent with the
following analysis.
Here, the State was not required to file the methamphetamine charge until, in the exercise of due diligence, it had or
should have had the evidence to support a charge for illegal possession of that substance. If the State chooses to delay
filing an information which could result in a violation of CrR 3.3, as it did here, the defendant may move, under CrR 3.3, to
dismiss for an unreasonable delay in bringing the charge. The burden then shifts to the State to show that it acted in good
faith and with due diligence, that is, that its reasons for delay in filing of the methamphetamine charge were understandable
and justified.
If the State demonstrates that it acted in good faith and with due diligence and its reasons were understandable and
justified, the speedy trial period accrues from the date of timely arraignment--in this case, September 25, 1997. CrR
3.3(c)(1). But if the trial court finds that the State did not act in good faith or with due diligence, that is, failed to
demonstrate that its reasons for the delayed methamphetamine charge were understandable and justified, the speedy trial
period for the later filed charge accrues from the time that the defendant is held to answer for any charge with respect to the
underlying criminal episode.
 State v. Parker, 99 Wn.App. 639, 994 P.2d 294, review denied, 142 Wn.2d 1002, 16 P.3d 1264 (Div. 1
2000) (Defendant arraigned on last day possible under speedy trial rules. She failed to object to speedy
arraignment/trial. Conviction affirmed.) —
Because at least one day remained in Parker’s speedy trial period even by her own calculation, it was not too late to ask
the trial court to set the constructive arraignment date; to determine whether a speedy trial was still possible; and to make a
record of these rulings for possible appellate review. Because Parker did not raise her Striker objection on the date of
arraignment, she waived it. The date of Parker’s actual arraignment (April 21) is conclusively established as the starting
point for her time for trial calculation. Her trial occurred within the time permitted by the rule. The trial court did not err
in denying her motion to dismiss.
 State v. Jones, 100 Wn.App. 820, 998 P.2d 921 (Div. 2 2000) (Trial court’s dismissal due to lack of
due diligence affirmed.) —
On May 19, 1998, defendant was arrested on suspicion of taking a motor vehicle without permission and unlawful
possession of a controlled substance. The next day she was released without being charged. On June 26, 1998, the
prosecutor filed charges against her. A bench warrant was issued four days later, listing Jones’ address as11515 205th
Avenue East, Bonney Lake, Washington. No summons or notification of charges was ever sent to defendant. On October 7,
1998, defendant was arrested in Wyoming on the warrant, and timely objected to her October 26, 1998 arraignment date.
Deputy Wagner of the Pierce County Sheriff’s Office was responsible for serving warrants in the Bonney Lake area. He
did not recall seeing an arrest warrant for Jones. Wagner knew Jones from prior contacts and “felt” that she did not live at
11515 205th Avenue East. He testified that she lived a “transient lifestyle within the methamphetamine community” and
frequently resided with people in that community. Wagner spoke with Jones’ associates during the relevant time period and
got the impression that Jones was in Montana. He made no attempt to locate Jones on the arrest warrant from June through
October 1998. Wagner did not believe that Jones would live at 11515 205th Avenue East with her mother because they
were on the “outs” with one another. Although he drove by the residence on a daily basis between the months of June and
August1998, he did not stop and ask whether Jones lived there.
Iva Goolsby, testified that she moved into the residence at 11515205th Avenue East in April 1997, which was over a
year before Jones’ first arrest. When she moved in, she told Jones to vacate the premises. Jones did not live there after that
time. Jones’ mother, Dickie Picolet, lived on the property in a travel trailer that was not connected to the main residence.
The trailer is about 12 feet long and 6 feet wide. It has a “port-a-potty” but no running water. Goolsby allowed Picolet to
live on the property under the condition that she not have company. Picolet failed to abide by this rule on many occasions.
Goolsby did see Jones on the property one time. Goolsby marked any mail received for Jones “does not lives here” and put
it back in the mailbox. Goolsby said she would have noticed if Jones was living there but also testified that she did not
check the trailer at 2:00to 3:00 in the morning. Goolsby received a collect call from Jones while Jones was in Montana. It is
unclear when this call was received. Jones said she slept in her mother’s trailer approximately five hours per night. She
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arrived at 2:00 or 3:00 a.m. in the morning and thus avoided Goolsby. She left Washington for a trip to Wyoming on
October 5, 1998, and was arrested two days later. In an affidavit, Jones said she receives all her mail at 11515 205th
Avenue East, Bonney Lake, Washington. …
The trial court concluded (1) that Jones is a resident of Washington, (2) that the State’s failure to inquire into her
location, despite knowledge of her domicile, was a lack of due diligence, and (3) that the lack of due diligence caused an
unnecessary delay in bringing Jones to trial. The court set a constructive arraignment date of July 10, 1998 (14 days from
the June 26th filing of the information), and concluded that she should have been brought to trial before September 24,
1998. Because she was not brought to trial within this time frame, the court dismissed the charges with prejudice. …
But the Striker rule only applies if the defendant is amenable to process and if there is a long and unnecessary delay.
Greenwood, 120 Wn.2d at 589, 590, 591, 601. Thus, a constructive arraignment date is not required if the delay is caused
by any fault or connivance of the defendant or if the prosecution acts in good faith and with due diligence in attempting to
bring the defendant before the court. See Greenwood, 120 Wn.2d at 600-01.
Was Jones Amenable to Process? The first question is whether Jones was amenable to process. The State contends that
the trial court failed to address the issue of residency in its findings of fact and conclusions of law and that the evidence
shows that Jones lived outside the state. Jones bears the burden of showing that she was amenable to process. The term is
defined as “being liable or subject to the law.” An out-of-state defendant who is not in custody is not amenable to process.
If a person is not amenable to process, the State is not required to show due diligence in bringing the person before the
court. … Deputy Wagner testified that he spoke to several people in the methamphetamine community and he “was under
the impression, or I was told by them that Ms. Jones had left the area and that she was believed to be in Montana.” But
Jones said she was a resident of Washington and that she spent nights at her mother’s trailer. And, although she admitted
calling her mother from Montana, the date of the call was not established. This conflict in the evidence is for the trial court
to resolve. Jones’ testimony alone is sufficient to support the finding that she was a resident of Washington during the time
the warrant was outstanding.
Did the State conclusively establish that the efforts to mail a summons or serve a warrant at the address given by Jones
would have been futile? The State argues that efforts to serve a warrant or mail a summons would have been futile and asks
us to apply Division One’s analysis in State v. Vailencour, 81 Wn.App. 372, 914 P.2d 767(1996). … The State contends
that they conclusively established, as in Vailencour, that efforts to serve a warrant or mail a summons to 11515 205th
Avenue East would have been futile. The State points to Goolsby’s testimony that, if she received mail for Jones, she
marked it “does not live here” and put it back in the mailbox. But the trial court found that Jones’ mother “resided on the
premises of 11515 205th Avenue East in a travel trailer, not connected to the main residence.” The court also found that
Jones slept in her mother’s trailer approximately five hours per night. Given these findings, the State did not conclusively
establish that any attempts to serve Jones at the address it had for her would have been futile. Deputy Wagner never
stopped at the address to serve Jones or to talk with her mother about where Jones stayed. And the record does not
conclusively show that any such effort would have been futile. Thus, even if we were to adopt the due diligence exception
of Vailencour, the State failed to demonstrate that Jones was not prejudiced.
[Note: This case holds, under its facts, that a warrant officer’s failure to try to find a defendant at the last
known address when an arrest warrant is issued pre-arraignment constitutes lack of due diligence justifying
a constructive arraignment date under Striker. Whether this holding will be broadly or narrowly construed
is to be seen.]
 State v. King, 101 Wn.App. 318, 2 P.3d 1012 (Div. 2 2000) (Forgery conviction. After law
enforcement attempted to serve summons on defendant, a warrant was issued but not timely entered into
the State computer system. On two separate occasions between issuance of warrant and arrest one year
later, defendant’s name was checked for warrants during his contact with officers and came back negative.
State did not exercise due diligence in attempting to bring defendant before court for arraignment, so 436
day delay between filing of information and arraignment violated speedy trial. Reversed.)
 State v. Anderson, 102 Wn.App. 405, 9 P.3d 840 (Div. 1 2000) (Possession of controlled substance.
Summons mailed to two addresses, but only one was returned. Prosecutor knew at some point that
defendant was “in treatment,” and CCO learned of new address months before defendant appeared in court
on the warrant. Conviction affirmed since prosecutor not required to search all treatment agencies to
find defendant, and CCO’s knowledge of defendant’s address not imputed to prosecutor.) —
Twenty-three months passed between the time the Snohomish County prosecutor charged Brenda Anderson with a
felony and the time she was arraigned. Anderson sought dismissal of the charges, arguing that the State did not act with
due diligence to locate her. But Anderson’s failure to receive notice of her arraignment was not caused by any lack of
diligence on the part of the State; the principal fault was hers. The State concedes that Anderson’s whereabouts were easily
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ascertainable during the last two months of the 23-month delay period because *408 she appeared in court on another
criminal matter. Anderson correctly conceded at oral argument that if the speedy trial calculation begins on the date of that
appearance, her failure to make timely objection to her arraignment date waived the protections of the rule. We thus affirm.
First, she argues that by the date of the scheduled June 1996 arraignment, the prosecution knew Anderson was in an
inpatient treatment facility. This argument misstates the record. The prosecution knew only that her reference had no
contact with her because she was “in treatment.” A vague reference to treatment does not make Anderson’s whereabouts
readily available, and we decline to impose on the State an obligation to search the nation’s or even the county’s inpatient
and outpatient treatment programs to locate Anderson. It is unlikely such a program would verify her participation in any
event, given that federal law prohibits disclosure without written consent of the patient, and only for limited purposes. See
42 U.S.C. § 290dd-2; 42 C.F.R. § 2. [emphasis added.]
Anderson also argues the prosecution’s due diligence ended in April 1997 when her CCO learned her new address. But
knowledge of the Department of Corrections as to a defendant’s whereabouts is not imputed to the county prosecutor, State
v. Miffitt, 56 Wash.App. 786, 793-94, 785 P.2d 850 (1990), and there is no evidence the State knew Anderson was under
community supervision before February 1998. There appears to have been no contact between the prosecution and
Anderson’s CCO. In addition, “There is no obligation to check with every agency in the state to determine whether the
defendant is somewhere in jail.” Miffitt, 56 Wash.App. at 794, 785 P.2d 850. See also State v. Bledsoe, 31 Wash.App. 460,
464, 643 P.2d 454 (1982). While Anderson does not advance the argument, we note that this reasoning also answers any
question about the effect of her providing a change of address to the Department of Licensing. Such a notice would be
relevant to the issues here only if the *413 prosecutor had an obligation to make regular inquiries to DOL to see if persons
who fail to appear for arraignment have submitted a change of address form. No such obligation exists.
 State v. Logan, 102 Wn.App. 907, 10 P.3d 504 (Div. 1 2000) (Defendant charged in municipal court
for assault. Case dismissed after 48 days of speedy had run to file felony charges after it was learned that
victim’s injuries resulted in reconstructive facial surgery and two titanium plates placed in fact to repair
damage. Defendant thereafter arrested on felony warrant, and held in custody. Superior court dismissed
case 14 days after arraignment (day 62 of speedy trial). Dismissal affirmed.)
[Note. This is an amazing result under the speedy trial rules. The court “reminds” the prosecution of its
duty to do justice by diligently prosecuting defendants yet affirms dismissal of a very serious assault under
a hyper-technical reading of a speedy trial rule created by the court where the defendant only spent 17 total
days in custody. 48 days of speedy ran in municipal court, during which time the defendant was out of
custody. He spent 3 days in custody over a weekend, and 14 days in custody in superior court from
arraignment to dismissal. The incident only occurred 84 days prior to the dismissal of the felony.]
[Query. What if 61 days had run during the municipal court filing and the defendant was out of custody?
Under the court’s ruling, the State’s act having defendant arrested and in custody at arraignment on the
felony would require dismissal at arraignment, since the defendant was on day 61 of speedy, and in
custody. This result occurs even though the defendant only spends the arraignment date itself in custody.]
 State v. Huffmeyer, 145 Wn.2d 52, 32 P.3d 996 (2001) (Anderson case. Defendant in custody in King
County when Kitsap County filed charges against him for possessing stolen firearms. Although Kitsap
served arrest warrant on King County holding facility, defendant not brought back to Kitsap for
arraignment until he completed his King County sentence. Trial court dismissal of Kitsap County case
affirmed since the State failed to exercise good faith and due diligence in bringing defendant to trial. The
Anderson Rule applies to in state in custody defendants. Speedy commences when defendant pleads or is
found guilty in another jurisdiction, not when he or she is sentenced.)
 State v. Hilderbrandt, 109 Wn.App. 46, 33 P.3d 435 (Div. 3 2001), review denied, 146 Wn.2d 1015, 52
P.3d 520 (2002) (Defendant arrested and charged with various municipal and district court charges during
the time his warrant on the vehicular assault case was active. The warrant address was based upon a DOL
address, which turned out to be the Defendant’s parents’ address. An officer determined that Defendant no
longer resided with his parents. Defendant ultimately arrested on felony warrant. Held that due diligence in
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looking for Defendant met because court refuses to impute knowledge of Defendant’s current
whereabouts based upon addresses given in other jurisdiction cases. Affirmed.)
[Note. This is an extremely important speedy arraignment case. A court or the prosecutor is not required to
check court databases (Judicial Information System, aka DISCIS/SCOMIS) to try to track down a
defendant from information available about other cases. The case also seems to say that the prosecution can
rely on DOL address information unless it has more recent address information, presumably because a
defendant has a duty to keep DOL informed of the most current address, RCW 46.20.205(1).]
 State v. Treat, 109 Wn.App. 419, 35 P.3d 1192 (Div. 3 2001) (Defendant living out of state but a
frequent visitor to Washington. Held being a frequent visitor to Washington not enough to show
amenable to process justifying constructive arraignment date. Conviction reversed on other grounds.)
 State v. Galbreath, 109 Wn.App. 664, 37 P.3d 315 (Div. 2 2002) (Anderson case. State obtained
warrant at time of filing charges, and no address for defendant was listed. Seven months later, the state
served defendant at an Oregon detention facility, where she was incarcerated for multiple charges.
Defendant arraigned two months later, and objected to speedy arraignment. Defendant has burden of
showing amenability to Washington process, and failed to produce evidence concerning her whereabouts
during timeframe. Convictions affirmed.) —
As far as the record shows, the period from January 31 through July 13 did not involve "unnecessary" delay. The record
shows nothing about where Galbreath was or what she was doing during those months; she may have actively been hiding
from the police, or living openly next door to a police station. She had the burden of showing amenability; she did not
sustain her burden; and thus the first period does not count as part of the time for arraignment or trial. [FN22]
As far as the record shows, the second period did not involve "unnecessary" delay. The record shows that Galbreath was
confined at NORCOR from July 14 through September 6, but it does not show whether she was claiming or waiving her
Oregon extradition rights. If she was claiming those rights, she was not amenable to Washington process until the date, if
any, on which she exhausted those rights. If she was waiving her rights, she was amenable to Washington process on the
date, if any, on which her waiver was effective. It was her burden to show what she was doing; she has not sustained that
burden; and the second period does not count as part of the time for arraignment or trial.
 State v. Frankenfield, 112 Wn.App. 472, 49 P.3d 921 (Div. 1 2002) (Defense filed 9-page notice of
appearance wherein an objection to speedy trial was made. Held that the boilerplate objection was not
specific enough to inform the trial court of the basis for the alleged error; thus speedy trial objection
deemed waived.) —
The speedy trial rule requires the defendant to make a timely objection to the trial date and alert the trial court to the
particular error alleged. An objection which generally references the speedy trial rule does not notify the court of what the
error is or how to remedy that error. Here, although the defendant stated a general objection *474 to the date of
arraignment, his objection did not properly alert the court to the basis for his objection. The defendant waived his right to a
trial within the speedy trial period, and the trial court erred in dismissing the case. …
On November 30, Frankenfield's counsel filed a document entitled "Notice of Appearance; Waiver of Arraignment;
Demand for Jury Trial; Discovery and Bill of Particulars; and Omnibus Application". Near the end of this nine-page
document Frankenfield stated the following objection:
Defendant objects to the date of arraignment and asserts the alleged offense occurred on October 8, 1998,
demands trial within the time period required by CrRLJ 3.3, objects to any trial date not so set and moves the
Court for an order setting a speedy trial date. State v. Greenwood, 120 Wash.2d 585, 845 P.2d 971 (1993).
In contrast to Frankenfield's unspecific objection, in Kennewick v. Vandergriff, the defendant objected to the trial date by
sending the following letter to the court clerk: "Pursuant to 3.08(f)(1) I object to the trial setting of May 14, 1985 in the
above matter. I believe that the 90 days will run out on May 6, 1985." 109 Wash.2d 99, 100, 743 P.2d 811 (1987).
Although the court held that the error was waived because the prosecutor was not served, it found the objection otherwise
sufficient because the relief sought, a trial prior to the May 6 expiration date, was "abundantly clear". Vandergriff, 109
Wash.2d at 102, 743 P.2d 811.
And in Greenwood, our supreme court concluded that Greenwood's objection was sufficiently specific where counsel, who
had just been appointed moments before, stated at arraignment: "I will object to the arraignment". Greenwood, 120
Wash.2d at 610, 845 P.2d 971. When asked for specific grounds counsel said that it appeared that the defendant had been
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in custody and that the prosecutor's office probably knew that. Greenwood, 120 Wash.2d at 610, 845 P.2d 971. Such an
objection alerted the court to the untimeliness of the arraignment and that the State may have been the cause of the delay.
Greenwood, 120 Wash.2d at 610, 845 P.2d 971. Unlike Frankenfield, Greenwood and Verdergriff did not merely reference
CrR 3.3 but alerted the court to the precise error.
In sum by failing to object with specificity and inform the trial court of the basis for the alleged error, Frankenfield waived
his objection **924 to the arraignment date. [FN1] Having waived the objection, the date of the actual arraignment was the
proper date from which to calculate the speedy trial expiration date. We remand the case for trial.
 State v. Frank, 112 Wn.App. 515, 49 P.3d 954 (Div. 1 2002) (Whatcom County District Court
arraignment proceedures upheld.) —
The facts are undisputed. On June 12, 1995, Frank was arrested for DUI and driving with a suspended license. That
evening, he was released on his personal recognizance. At the time of release, he received a copy of the citation, and signed
a promise to appear in Whatcom County District Court on June 16, 1995 at 8:45 a.m. The signed promise to appear warned
that failure to do so could result in issuance of a bench warrant. Neither the citation nor the promise to appear specifically
directed Frank to check in with the *518 district court clerk at the time of his scheduled arraignment. The record shows that
Frank did not check in with the district court clerk either on the scheduled date of arraignment or during the following three
week period. Approximately four weeks after his scheduled arraignment, the court issued a bench warrant for Frank's
arrest. …
We turn next to the underlying question of whether the district court erred by not setting a constructive arraignment date,
resulting in a violation of Frank's right to a speedy trial under the court rules. We hold that there was no such violation. …
In Bryant, the defendant received notice of an arraignment date and called the prosecutor's office to reschedule. Bryant was
informed of a new date, but failed to appear at the rescheduled arraignment. A bench warrant was issued, and authorities
arrested him more than a year later. He was arraigned four days after his arrest. [FN17] We rejected Bryant's speedy trial
challenge, concluding that "the State was entitled to assume that Bryant was well aware of his arraignment date and that his
failure to appear was volitional." [ [FN18]]
Here, we hold that the arraignment procedures are constitutionally sound. We accordingly conclude that the State
adequately established that Frank failed to appear at *525 his scheduled arraignment. As in Bryant, Frank received notice
of his arraignment date but failed to appear. The State was entitled to assume that Frank was aware of his arraignment date
and that his failure to appear was volitional. Because his failure to appear was volitional, it was not necessary for the court
to establish a constructive arraignment **960 date. Thus, there was no violation of the speedy trial rule when Frank was
brought to trial well after his initial scheduled arraignment date.
 State v. Wilson, 113 Wn.App. 122, 52 P.3d 545 (Div. 3 2002), review denied, 149 Wn.2d 1006, 67
P.3d 1097 (2003) (Defense objected to an untimely arraignment, but never noted the motion for hearing.
Held waived.) —
Mr. Wilson did object to his arraignment as untimely, thus theoretically invoking scrutiny of the delay for purposes of
setting a constructive arraignment date under Striker and Greenwood. But he never noted his motion for hearing as
required by CrR 3.3(f). Thus, the court was not asked to consider whether the State failed to act in good faith or with due
diligence in bringing him before the court. The State was not given a chance to proffer such evidence. Nor was Mr.
Wilson's motion supported by any affidavit suggesting he was amenable to process after the district court complaint was
filed. His claim is thus not reviewable, except that the record shows he was arraigned in superior court on June 1--8 days
after his initial court appearance. *131 Since he was then in custody, a trial date within 60 days was set. See CrR
3.3(c)(2)(i). Further continuances are not challenged. On the record presented, Mr. Wilson's speedy trial rights were not
violated.
 State v. Chenoweth, 115 Wn.App. 726, 63 P.3d 834, review denied, 150 Wn.2d 1011, 79 P.3d 446
(Div. 3 2003) (Defendant held to have been sufficiently arraigned for speedy trial purposes even though
trial court did not specifically ask defendant to plead to the charges.)
 State v. Hardesty, 149 Wn.2d 230, 66 P.3d 621 (2003) (Anderson case. Residential burglary.
Defendant in custody in another county jail serving an unrelated probation violation sentence. State files
residential burglary charges in Spokane District Court and an arrest warrant issued. The next day, Spokane
sheriff’s deputies told of defendant’s location. A month later, information filed in Spokane Superior Court.
A few days later, defendant arraigned. Held that (1) criminal rule, which established time for arraignment
and trial when state initially filed felony charge in district court and later filed case in superior court,
referred to detentions on current charges, rather that detention on unrelated charges, when it directed that
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"time elapsed in district court" commenced with the filing of the current complaint if the defendant was
"detained in jail;" (2) whether detention was in filing court was irrelevant under rule; and (3) defendant's
trial date was properly set.)
 State v. Kindsvogel, 149 Wn.2d 477, 69 P.3d 870 (2003) (Peterson case. During DV investigation,
victim showed police marijuana grow in her house. Defendant arrested on DV; and charged in district court
with fourth degree assault. He eventually plead guilty to disorderly conduct. Four months later, defendant
charged in superior court with possession of marijuana with intent to manufacture. Trial court found DV
and drug cases could have been joined, and that the felony filing delay was prejudicial. It denied the speedy
trial motion to dismiss because the criminal acts had no “relationship” and were dissimilar in nature. Held
that acts underlying defendant’s charges of marijuana and fourth degree assault did not constitute a single
criminal episode which would require both charges to be prosecuted within the speedy trial time limits.
Conviction affirmed.)
 State v. Swenson, 150 Wn.2d 181, 75 P.3d 513 (2003) (Striker case. State acted with good faith and
due diligence in trying to bring inmate before the court for arraignment in first county, following
conclusion of criminal proceedings in second county to which inmate had been transported from prison
pursuant to first-in-time transport order, and thus, the delay would be excluded from the time for trial
calculation when determining whether inmate's failure to object to arraignment date at the time of
arraignment could be excused based on the actual arraignment allegedly having occurred after the time for
trial expired.)
 Seattle v. Guay, 150 Wn.2d 288, 76 P.3d 231 (2003) (Court of limited jurisdiction had the authority to
issue a transport order to transport defendants, who were serving sentences in other counties, to court
hearing on new charges, but time spent in the other county jail tolled speedy trial time calculation given
that there was no mechanism to compel authorities and courts in other jurisdictions to obey a transport
order. No speedy trial violation. Anderson distinguished because there is a mechanism to transport out-ofstate prisoners to superior court.)
 State v. Austin, 119 Wn.App. 319, 80 P.3d 184 (Div. 2 2003) (Striker case. Prosecution’s
prearraignment failure to call defendant’s contact number demonstrated lack of due diligence, for purpose
of Striker requirement that defendant be arraigned in timely fashion. Remanded to determine if dismissal
appropriate.) —
This case raises the question of what constitutes sufficient "due diligence" in bringing a defendant before the court for
arraignment so as to avoid application of the Striker [FN1] rule. **186 During a police investigation, Leroy Austin
provided the police with the name and telephone number of a contact person whom he alleged could provide his current
address. The State later filed a criminal charge against Austin and issued a warrant for his arrest, but it made no attempt to
determine Austin's address or to otherwise advise him of the charges. We hold that under these circumstances the State
failed to exercise due diligence, a deficiency that led to a 13 month delay between charging and Austin's arraignment. But
as the State did not have an opportunity to show that calling the contact would have been futile, we remand for the taking
of further evidence and a determination on whether to dismiss for violation of speedy trial rights under CrR 3.3.
In February 2000, Pacific County Sheriff's Deputy Rick Goodwin interviewed Austin apparently regarding an alleged rape
of a 9 year old child with whose family Austin had been living. Austin was living in a hotel and did not have a permanent
address. But he told Goodwin that Eric Valley was his attorney; he gave Goodwin Valley's business card, which contained
Valley's address and telephone number; and he said that Valley would know of his future whereabouts.
On June 26, 2000, the State filed an information charging Austin with first degree rape of a child. At the same time, it
obtained a warrant for Austin's arrest and it mailed notice of the filing of the information to Austin at what the parties
concede was an incorrect address. The notice was returned with the notation, "Moved, no forwarding address." Report of
Proceedings (7/9/01) at 6. The State did not call Valley to ask about Austin's address or take any other steps to locate
Austin.
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Thirteen months later, on July 6, 2001, the Pacific County Sheriff's Office arrested Austin on the warrant. At his
arraignment, Austin moved to dismiss the charge for violation of his speedy trial rights. The trial court concluded that
"[t]he State did not fail to use due diligence in locating [Austin] or good faith in attempting to locate [him]."
 State v. Hessler, 123 Wn.App. 200, 98 P.3d 64 (Div. 3 2004) (Striker case. Five year delay from filing
charge to arraignment. Defendant lived in Minnesota during relevant times. Trial court’s dismissal reversed
because due diligence requirement on state not triggered because defendant not amenable to process.) —
To trigger the requirement of due diligence by the State in bringing a criminal defendant before the court, the defendant
must establish that he was amenable to process. In 2003 the State prosecuted Dale A. Hessler for first degree theft allegedly
committed in 1996. The State filed a complaint in district court in 1998. Mr. Hessler lived in Minnesota from 1996 to 2002.
He made no showing that he was amenable to process. The trial court nevertheless dismissed the prosecution, concluding
that the State had failed to exercise due diligence to notify Mr. Hessler of the charge. We conclude he was not amenable to
process and, accordingly, the State's due diligence obligation was never triggered. And we reverse the trial court's decision
to the contrary.
Case Law — Speedy Trial — Commencement of Clock — Posting Bail, Signed
Release Agreement, and Property Held for Civil Forfeiture
 State v. Fulps, 141 Wn.2d 663, 9 P.3d 832 (2000) (Felony possession of marijuana. Defendant arrested
after search warrant. District Court judge signed a “Statement of Arresting Officer and Preliminary Finding
of Probable Cause” that set cash bail at $3000. The form did not contain a cause number, provide any
conditions of release, or set any time to appear back in court for further proceedings. Defendant posted bail
and was released without personally appearing before the court. Five months later, an information was filed
in superior court charging defendant with felony violations. Speedy trial violated since speedy trial clock
commenced at the defendant’s posting of bail or signing release agreement.) —
Simply put, neither CrR 3.3 nor these cases address the question here-- whether a defendant who gains his release by
posting bail, with no means of exonerating his bail, is “held to answer.” In similar circumstances we have relied upon the
ABA standards to supplement CrR 3.3 whenever necessary and have specifically adopted relevant ABA standards. See
State v. Harris, 130 Wash.2d 35, 40, 921 P.2d 1052 (1996) (citing cases). The relevant standard here provides that the time
for trial should commence running, without demand by the defendant, “from the date the charge is filed, except that if the
defendant has been continuously held in custody or on bail or recognizance ..., then the time for trial should commence
running from the date the defendant was held to answer.” 2 American Bar Ass’n, Standards for Criminal Justice Std. 122.2(a), at 12-17 (2d ed.1980) (emphasis added). See also State v. Fladebo, 113 Wash.2d 388, 392, 779 P.2d 707 (1989)
(quoting same).
We again rely on the ABA standards to supplement CrR 3.3’s speedy trial requirements and hold that Fulps’s speedy
trial period began to run when he posted bail on the day of his arrest, January 17, 1997, and expired 90 days thereafter.
Under the unique circumstances of this case, he was “held to answer” from the time he posted bail. His motion to dismiss
should have been granted. We reverse the Court of Appeals and remand the case to the trial court for dismissal.
Case Law — Speedy Trial — Commencement of Trial — Preliminary Motions
 State v. Carlyle, 84 Wn.App. 33, 925 P.2d 635 (Div. 2 1996) (preliminary motion to exclude witnesses
pursuant to ER 615 sufficient to commence trial) —
A defendant is ‘brought to trial’ for purposes of CrR/CrRLJ 3.3(c)(1) when the judge calls the case and hears preliminary
motions. State v. Carson, 128 Wn.2d 805, 820, 912 P.2d 1016 (1996); State v. Estabrook, 68 Wn.App. 309, 313-14, 842
P.2d 1001, review denied, 121 Wn.2d 1024 (1993); State v. Redd, 51 Wn.App. 597, 608, 754 P.2d 1041, review denied,
111 Wn.2d 1008 (1988); State v. Mathews, 38 Wn.App. 180, 183, 685 P.2d 605, review denied, 102 Wn.2d 1016 (1984).
‘Mathews and Redd establish that nothing more need be done to comply with CrR 3.3 than that the case be called and the
court entertain a preliminary motion.’ State v. Andrews, 66 Wn.App. 804, 810, 832 P.2d 1373 (1992), review denied, 120
Wn.2d 1022 (1993).
Thus, in Mathews, trial commenced when the judge heard the State’s motion to amend the information and the
defendant’s motions to exclude prior convictions and to be permitted to wear civilian clothing to trial. Mathews, 38
Wn.App. at 181-83. And in two of the cases consolidated in Andrews, the trials started when, in the last minutes of the last
possible day, the respective judges heard only motions to exclude witnesses. Andrews, 66 Wn.App. at 806, 808-10. The
Andrews case specifically rejects the argument, made by Carlyle here, that a preliminary motion to exclude witnesses is not
substantial enough to toll the running of the speedy trial period. Andrews, 66 Wn.App. at 810. Finally, in Carson, the
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Supreme Court recently held that trial commenced on the last day when the trial court denied a motion for continuance.
Carson, 128 Wn.2d at 820.
Here, likewise, the State made a preliminary motion to exclude witnesses, plus another motion in limine regarding a gaze
nystagmus test administered by the trooper. When the district court judge decided those motions, the trial commenced for
purposes of the speedy trial rule, the rule was not violated, and the court erred by dismissing the case.
Case Law — Speedy Trial — Competency Proceedings
 State v. Cox, 106 Wn.App. 487, 24 P.3d 1088, review denied, 145 Wn.2d 1010 (Div. 2 2001)
(Competency exclusion period begins when record shows doubt concerning competency and a party or
court moves orally or in writing for a competency evaluation. Conviction affirmed.)
 State v. Harris, 122 Wn.App. 498, 94 P.3d 379 (Div. 3 2004) (Once defendant’s competency
proceedings were set in motion, the court rules tolled the trial period until the court was satisfied that
defendant was competent even if delay is due to hospital congestion and backlogs. CrR 3.3(g)(1).) —
Once Mr. Harris's competency proceedings were set in motion, the court rules tolled the trial period until the court was
satisfied that he was competent. Former CrR 3.3(g)(1); Cox, 106 Wash.App. at 491, 24 P.3d 1088. An order for evaluation
under RCW 10.77.060(1)(a) automatically stays the criminal proceedings until the court determines that the defendant is
competent to stand trial. Former CrR 3.3(g)(1). Tolling is necessary because neither side can go forward with trial
preparation until the defendant is found competent to proceed. State v. Jones, 111 Wash.2d 239, 245, 759 P.2d 1183
(1988). The courts give this particular tolling provision broad scope precisely because the evaluation process is
unpredictable and beyond the court's control. State v. Setala, 13 Wash.App. 604, 606, 536 P.2d 176 (1975).
The diminished capacity procedures are different. Diminished capacity is a mental disorder not amounting to insanity that
impairs the defendant's ability to form the culpable mental state to commit the crime. State v. Atsbeha, 142 Wash.2d 904,
914, 16 P.3d 626 (2001). Like insanity, this defense must also be declared pretrial. CrR 4.7(b)(1); CrR 4.7(b)(2)(xiv). But
with diminished capacity, the defense, not the court, must obtain a corroborating expert opinion and disclose that evidence
to the prosecution pretrial. CrR 4.7(b)(1); CrR 4.7(g). Depending on the strength of the defense's showing, the State may or
may not request its own evaluation. CrR 4.7(b)(2)(viii); In re Pers. Restraint of Hutchinson, 147 Wash.2d 197, 204, 53 P.3d
17 (2002).
It is not clear on this record whether Mr. Harris meant to claim incompetence, insanity, or diminished capacity. The court
may have misinterpreted a request to appoint a diminished capacity expert, or counsel may have intentionally or
inadvertently requested competency proceedings. In any case, the court ordered a competency evaluation on the oral
motion of the defense. The court acted within its discretion in ordering an evaluation once it perceived a reason to question
Mr. Harris's competence. RCW 10.77.060(1)(a). Moreover, whatever the oral confusion, the defense stipulated in writing
to a stay of the proceedings for the purpose of a mental evaluation. Clerk's Papers at 3. The tolling of the trial period
inevitably followed.
Mr. Harris contends that trials should not be delayed because of hospital congestion and backlogs. The cases he relies on,
however, address factors under the court's control, such as docket congestion and inefficient prosecution. See, e.g., State v.
Mack, 89 Wash.2d 788, 794, 576 P.2d 44 (1978). This difference may explain why CrR 3.3 does not toll for docket
congestion but does include an unqualified tolling provision for competency proceedings.
Case Law — Speedy Trial — Continuance Tolls Running
 State v. Pettus, 89 Wn.App. 688, 701, 951 P.2d 234, review denied, 136 Wn.2d 1010, 966 P.2d 904
(Div. 2 1998) —
But the period of a continuance is excluded from the speedy trial period. CrR 3.3(g)(3); State v. Raper, 47 Wash.App. 530,
535, 736 P.2d 680 (1987).
Case Law — Speedy Trial — Continuances vs. Extensions for Unforeseen or
Unavoidable Circumstances
 State v. Williams, 104 Wn.App. 516, 17 P.3d 648 (Div. 2 2001) (Three counts first degree robbery.
Defendant argued that his rights to a speedy trial were violated because of five continuances, granted
primarily because of the unavailability of the assigned deputy prosecutor. He also argued that the trial court
erred in admitting evidence of his alleged reputation in the community as a thief. Div. 2 affirms granting of
continuances, but reverses due to admission of reputation evidence.) —
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“ ‘[A] trial court’s grant or denial of a motion for a CrR 3.3 continuance or extension will not be disturbed absent a
showing of a manifest abuse of discretion.’ “ State v. Cannon, 130 Wn.2d 313, 326, 922 P.2d 1293 (1996) (quoting State v.
Silva, 72 Wn.App. 80, 83, 863 P.2d 597 (1993)). Discretion is abused only where it is exercised on untenable grounds or
for untenable reasons. State v. Warren, 96 Wn.App. 306, 309, 979 P.2d 915, 989 P.2d 587 (1999).
A defendant not released from jail pending trial shall be brought to trial not later than 60 days after the date of arraignment.
CrR 3.3(c)(1). The court may extend the time within which trial must be held for no more than five days (exclusive of
Saturdays, Sundays, or holidays) if there are “unavoidable or unforeseen circumstances beyond the control of the court or
the parties.” CrR 3.3(d)(8).
For an “extension” under CrR 3.3(d)(8), if the nature of the unforeseen or unavoidable circumstance continues, the court
may extend the time for trial in increments not to exceed five days, [FN3] unless the defendant will be substantially
prejudiced in his or her defense. CrR 3.3(d)(8). The court must state on the record or in writing the reasons for each
extension. CrR 3.3(d)(8).
A court may also grant a “continuance” under CrR 3.3(h)(2) [FN4] “when required in the administration of justice.” As
in the case of extensions, the defendant must not be “substantially prejudiced” and “the court must state on the record or in
writing the reasons.” CrR 3.3(d)(8) and (h)(2).
Thus, the differing standards are “unavoidable or unforeseen circumstances beyond the control of the court or the
parties” for an extension under CrR 3.3(d)(8), compared to “required in the administration of justice” for a continuance
under CrR 3.3(h)(2). In addition, a motion for continuance under CrR 3.3(h)(2) must be filed “on or before the date set for
trial or the last day of any continuance or extension,” whereas an extension under CrR 3.3(d)(8) is allowed “even if the
time for trial has expired.” See State v. Raper, 47 Wn.App. 530, 534-37, 736 P.2d 680 (1987).
Extensions under CrR 3.3(d)(8) and continuances under (h)(2) impact the 60 or 90 day requirement of the speedy trial
rule in different ways. CrR 3.3(d)(8) is one of several “extensions of time limits” that apply “notwithstanding the
provisions of section (c) [such as the 60 and 90 day requirements].” CrR 3.3(d) (emphasis added). On the other hand, CrR
3.3(g)(3) provides for treating “[d]elay granted by the court pursuant to section (h)” as one of several “Excluded Periods”
that “shall be excluded in computing the time for arraignment and the time for trial.” CrR 3.3(g).
Case Law — Speedy Trial — Counsel & Prosecutor Unavailability
 State v. Williams, 104 Wn.App. 516, 17 P.3d 648 (Div. 2 2001) (Three counts first degree robbery.
Defendant argued that his rights to a speedy trial were violated because of five continuances, granted
primarily because of the unavailability of the assigned deputy prosecutor. He also argued that the trial court
erred in admitting evidence of his alleged reputation in the community as a thief. Div. 2 affirms granting of
continuances, but reverses due to admission of reputation evidence.) —
“[U]navailability of counsel may constitute unforeseen or unavoidable circumstances to warrant a trial extension under
CrR 3.3(d)(8).” State v. Carson, 128 Wn.2d 805, 814, 912 P.2d 1016 (1996). Courts have affirmed five-day extensions
under CrR 3.3(d)(8) in a variety of situations involving scheduling conflicts. See, e.g., Cannon, 130 Wn.2d 313 (two
extensions where deputy prosecutor occupied in another trial); State v. Watkins, 71 Wn.App. 164, 175, 857 P.2d 300
(1993) (three extensions, once due to scheduling conflicts for standby counsel to pro se defendant, once due to illness, and
once due to unavailability of deputy prosecutor); State v. Kelley, 64 Wn.App. 755, 828 P.2d 1106 (1992) (three extensions,
resulting in a delay of 17 calendar days, where the originally assigned deputy prosecutor had Christmas vacation plans and
the next most available deputy was already in trial on another case); Raper, 47 Wn.App. 530 (retroactive extension, where
prosecutor was in another trial, after clerical error in which court and parties were unaware speedy trial deadline had
passed); State v. Stock, 44 Wn.App. 467, 472-73, 722 P.2d 1330 (1986) (prosecutor unexpectedly unavailable after 2-3 day
trial went much longer); State v. Brown, 40 Wn.App. 91, 94-95, 697 P.2d 583 (1985) (scheduling conflict for deputy
prosecutor); State v. Eaves, 39 Wn.App. 16, 691 P.2d 245 (1984) (co-defendant’s counsel scheduled for another trial);
State v. Palmer, 38 Wn.App. 160, 684 P.2d 787 (1984) (two five-day extensions, first because deputy prosecutor in another
trial, second because deputy prosecutor’s trial not completed and defense counsel started another trial).
It is not a manifest abuse of discretion for a court to grant a continuance under CrR 3.3(h)(2) to allow defense counsel
more time to prepare for trial, even over defendant’s objection, to ensure effective representation and a fair trial. State v.
Campbell, 103 Wn.2d 1, 15, 691 P.2d 929 (1984).
For each continuance here, the court made a record as to the reasons for the continuance and found that Williams would
not be prejudiced by the delay.
The record is unclear in the first three continuances whether they were based on CrR 3.3(d)(8) or (h)(2). The oral
discussion reflects five-day extensions under CrR 3.3(d)(8), but the written orders are on forms labeled “continuance” and
have boxes checked based on the CrR 3.3(h)(2) standard that a continuance is “required in the due administration of
justice.” Report of Proceedings (January 12, 1998) at 5-6, Report of Proceedings (January 14, 1998) at 10, Report of
Proceedings (January 21, 1998) at 8-9, Clerk’s Papers at 29-31. On the last two continuances, the same form for a
continuance is used with the same boxes checked, but on both the words “pursuant to CrR 3.3(d)(8)” are added. Clerk’s
Papers at 32, 40. We hold that the proper standard under the circumstances here should be CrR 3.3(h)(2) rather than CrR
3.3(d)(8). The deputy prosecutor assigned to this case clearly knew that he would be occupied with an aggravated murder
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trial and would be unavailable to try this case for an extended time. The newly-appointed defense counsel was unprepared
for trial at the time of the first four hearings. These circumstances do not properly fall within the category of “unavoidable
or unforeseen circumstances beyond the control of the court or the parties” for purposes of CrR 3.3(d)(8). However, the
continuances were still justified because they were “required in the administration of justice” under CrR 3.3(h)(2).
 State v. Jones, 117 Wn.App. 721, 72 P.3d 1110 (Div. 1 2003), review denied, 151 Wn.2d 1006, 87
P.3d 1184 (2004) (Continuance granted because prosecutor in trial on another matter proper.)
 State v. Heredia-Juarez, 119 Wn.App. 150, 79 P.3d 987 (Div. 1 2003) (No per se requirement of
reassignment to a different prosecutor when a prosecutor becomes unavailable due to pre-scheduled
vacation.)
Case Law — Speedy Trial — Court Congestion
 State v. Warren, 96 Wn.App. 306, 309-11, 979 P.2d 915, 989 P.2d 587 (Div. 2 1999) (Trial continued
after speedy trial expired due to the unavailability of a courtroom. Drug delivery case dismissed with
prejudice.) —
Court congestion is not “good cause” to continue a criminal trial beyond the prescribed time period. State v. Mack, 89
Wash.2d 788, 794, 576 P.2d 44 (1978). And courtroom unavailability is synonymous with “court congestion,” State v.
Kokot, 42 Wash.App. 733, 737, 713 P.2d 1121 (1986). Further, without “ ‘good cause’ for the delay, dismissal is
required.” Mack, 89 Wash.2d at 794, 576 P.2d 44 (citing State v. Williams, 85 Wash.2d 29, 32, 530 P.2d 225 (1975)).
But the Mack rule has not been rigidly applied. In Kokot, Division Three suggested that a five-day extension might
have been permitted if the record had shown “how many courtrooms were actually in use at the time of this continuance,
the availability of visiting judges to hear criminal cases in unoccupied courtrooms, etc. Without these facts a continuance
granted for court congestion was an abuse of discretion.” Kokot, 42 Wash.App. at 737, 713 P.2d 1121 (citing Mack, 89
Wash.2d at 795, 576 P.2d 44).
Adopting the Kokot, suggestion, Division One affirmed a conviction where the trial court substantiated its
assertion that court congestion was unavoidable by carefully making a record of why each trial department was
unavailable to try [the] case[, and] [t]he court also attempted to follow the dictates of Mack and Kokot by
trying to relieve docket congestion by offering to call in a judge pro tempore to try the case in one of two empty
courtrooms, which [the defendant] refused.
Silva, 72 Wash.App. at 84-85, 863 P.2d 597 (citing Kokot, 42 Wash.App. at 737, 713 P.2d 1121). Silva also noted that
the five-day continuance extended the trial only two judicial days beyond the speedy trial expiration date and thus any
potential prejudice to the defendant was de minimus. Silva, 72 Wash.App. at 84, 863 P.2d 597.
Here, as in Silva, the first continuance beyond the speedy trial period was only for two days. But the court was aware
that in all likelihood the two-day continuance would push the trial date beyond the end of the homicide trial--sixteen days.
And the trial court did not make the detailed explanation on the record of why each superior court department was
unavailable on June 23, as required by Kokot and Silva. Nor did the court offer Warren a judge pro tempore as in Silva.
We hold that to comply with Mack, in granting CrR 3.3(d)(8) continuances past the speedy trial period, the trial court
must consider the length of the continuance and the likelihood that the continuance will result in additional delay; further,
if additional delay is likely, the court should consider the probable length of such delay. Finally, to allow meaningful
review, the court should establish some record of why each superior court department is unavailable and whether a judge
pro tempore could reasonably be used.
Because the court did not consider the likely actual delay caused by the initial two-day continuance and did not provide
any detailed explanation of why the individual superior court departments were unavailable, we reverse and dismiss
Warren’s convictions.
 State v. Smith, 104 Wn.App. 244, 15 P.3d 711 (Div. 2 2001) (Second degree assault with deadly
weapon, unlawful possession of firearm, and attempting to elude. Convictions reversed due to speedy trial
violation based upon continuance granted due to routine court congestion.) —
In this case, Smith was timely tried only if the continuances on January 20 and January 27 were both proper. If the first
continuance was not proper, the time for trial expired on January 25. [FN16] If the first continuance was proper but the
second was not, the time for trial expired on either January 27 or February 1. [FN17] Smith’s trial did not commence until
February 3.
The parties agree that the January 20th continuance was proper. Under CrR 3.3(d)(8), CrR 3.3(h)(2), or both, the trial
court had authority to continue the trial for at least five days, [FN18] based on defense counsel’s illness.
The parties dispute whether the January 27th continuance was proper. The State argues that court congestion justified a
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continuance of five more days under either CrR 3.3(h)(2) or CrR 3.3(d)(8). Smith argues that court congestion could not
justify a continuance under either rule. We turn, then, to whether either rule can justify a continuance for court congestion.
As far as the record shows here, the congestion on January 27 was purely routine. During the hearing on January 20,
while the court was considering a continuance to January 27, defense counsel stated, “[T]hat date is already full.”
The prosecutor related that a court staff person had found all twenty courtrooms to be unavailable, but no one showed
how that was done, when it was done, or any other basis for the staff person’s conclusion. Smith asked for a pro tem judge,
which the trial court affirmatively declined to consider. Smith asked for trial the next day, without discernable response.
Based on this record, **716 we are constrained to hold that the trial court was not justified in delaying trial beyond speedy
trial limits, and that dismissal with prejudice is the remedy required by CrR 3.3(i).
Case Law — Speedy Trial — Crime Lab Congestion
 State v. Howell, 119 Wn.App. 644, 79 P.3d 451 (Div. 1 2003) (First degree unlawful possession of
firearm. Four day continuance of trial date when it became apparent that test-fire results from crime lab
would not be available in time for trial permitted, where crime lab congestion and delay caused by unusual
investigation of serial murders.)
Case Law — Speedy Trial — Defendant’s Failure to Appear — Excused Absence
 State v. Raschka, 124 Wn.App. 103, 100 P.3d 339 (Div. 3 2004) (Defendant’s absence from status
conference was excused by state because defendant was in hospital. Case was misplaced, and trial date set
after speedy ran. Held that defendant’s excused absence did not trigger new period for speedy trial, and
since defendant not responsible for ensuring timely trial nor required to prove prejudice, case dismissed.)
Case Law — Speedy Trial — Defendant’s Failure to Appear — Late for Court
 State v. Wachter, 71 Wn.App. 80, 856 P.2d 732 (Div. 2 1993), review denied, 123 Wn.2d 1014, 871
P.2d 599 (1994) (Defendant was not present on trial day when court called calendar. Counsel indicated
surprise the defendant was not present, and asked court for permission to contact defendant. Court granted
the request, but noted “Show here the defendant … failed to appear at this time.” The defendant was
contacted at home and appeared for court about two hours late. Another trial had priority and had already
commenced. The defendant’s case was reset beyond the original speedy trial time, but within 90 days from
the trial for which she was late. Conviction affirmed.) —
Here, it is apparent that the intent behind CrRLJ 3.3(d)(2) is to give courts of limited jurisdiction control over their dockets.
See State v. Johnson, 56 Wash.App. 333, 337, 783 P.2d 623 (1989). [FN4] The rule in question accomplishes that goal by
allowing the trials of defendants who have respected the trial court's schedule to proceed, while permitting the rescheduling
of the trials of defendants who have failed to be as diligent. Wachter fails to demonstrate a different reasonable meaning of
the rule. In short, the rule is not ambiguous. Wachter's suggestion that the rule of lenity applies is, therefore, without merit.
FN4. The related rule for superior courts is CrR 3.3(d)(2).
While the rule may appear to permit harsh results, such rules are made necessary by the crush of litigation that *84
confronts modern courts. Firm and fair application of the rule will benefit all litigants who have matters pending in our
busy courts. Furthermore, the trial court was not as harsh in applying the rule as it could have been. When the 9:00 a.m.
call of the cases ready for trial had concluded, the trial court could have issued a bench warrant for Wachter's arrest
because of her failure to appear. It chose not to do so, but rather rescheduled the trial following her appearance, at 11:30
a.m. The trial court did not err in rescheduling Wachter's trial and, therefore, the superior court did not err in affirming the
district court.
[Note. The author represented Ms. Wachter in this matter. Perhaps the biggest surprise for the author and
his opponent, Pamela Loginsky, was Division Two’s questioning of both counsel at oral argument
concerning the court’s surprise that more than one case is set for trial in Kitsap County District Court.
Footnote 1 says … ] —
FN1. Apparently, it is customary for the Kitsap County District Court to set more than one case for trial at a time certain.
When the cases are called, those that are ready to be tried are tried in an order determined by the court.
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Case Law — Speedy Trial — Defense Counsel Conflict of Interest
 State v. Thomas, 95 Wn.App. 730, 739-40, 976 P.2d 1264 (Div. 1 1999), review denied, 139 Wn.2d
1017, 994 P.2d 846 (2000) (Defendant effectively forced to waive speedy trial in order to have new counsel
appointed when initial defense counsel learned just before trial that a conflict of interest existed. Conviction
affirmed since delay not attributable to any actions by the State.) —
We further hold that a speedy trial waiver forced solely by defense counsel’s conduct, and not in any way attributable to
the State or the court, is not a violation of Criminal Rule 3.3, and does not justify a dismissal of charges. Otherwise, as the
State argued in Campbell, defense counsel could obtain dismissal of the charges by neglecting to prepare a case. Dismissal
of charges after a defendant is convicted in a fair trial is “Draconian” and can only be justified by a compelling public
policy. Thomas has put forth no policy compelling such an interpretation of CrR 3.3. In cases where the State’s conduct
has forced the defendant to waive speedy trial, the courts have relied on CrR 8.3(b) as the rule authorizing dismissal, not
CrR 3.3. Dismissal of charges under CrR 8.3(b) requires a showing of arbitrary action or governmental misconduct.
Inadequacy of representation by defense counsel does not satisfy this requirement.
Thomas does offer a theory attributing his forced waiver of speedy trial to an alleged omission by the State. Thomas had
pleaded not guilty and was entitled to a trial within 60 days. The prosecutor, because he knew of the potential conflict,
must have also known that a trial within 60 days was unlikely unless counsel with the potential conflict made an early
withdrawal from the case. Under these circumstances, Thomas argues, the State had a duty to bring a motion to clarify the
status of counsel. Such a motion would have brought the potential conflict to the attention of Thomas and the trial court.
The State has a duty to avoid delay in providing discovery and amending the information. Offered no authority or policy
argument for doing so, we decline the invitation to impose on the State a new and equivalent duty to resolve potential
defense conflicts. In State v. Malone, we rejected the argument that the State has “a superior knowledge” or a “singular
duty” overriding defense counsel’s obligation to learn easily ascertainable facts relevant to setting the trial date within the
speedy trial period. The situation in this case is analogous. Unless the State has unique knowledge of facts creating the
potential conflict, the duty to avoid conflicted representation of the defendant belongs to defense counsel, not the State.
Here, the State immediately shared with counsel its awareness that her office had previously represented the co-defendant,
Payne. More was not required.
In summary, there was no violation of the speedy trial rule. The trial court properly denied the motion to dismiss.
Case Law — Speedy Trial — Defense Counsel Needs Time to Prepare
 State v. Campbell, 103 Wn.2d 1, 14-15, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct.
2169, 85 L.Ed.2d 526 (1985) (Capital murder case. Defense counsel sought continuance of trial over
defendant’s objection to allow sufficient time to prepare a defense. Conviction affirmed.) —
Here Judge Britt properly exercised his discretion under CrR 3.3(h)(2). State v. Laureano, 101 Wash.2d 745, 755, 682
P.2d 889 (1984). Moreover, he made a proper record of reasons for failure to comply with CrR 3.3 time limits. State v.
Williams, 87 Wash.2d 916, 920, 557 P.2d 1311 (1976). He found Campbell’s counsel could neither effectively represent
him nor ensure that he received his constitutional right to a fair trial within 60 days of arraignment, “through no fault of
their own but because of the complexity and length of this case.” He recognized that if he denied the continuance “the
argument might be made upon review that Mr. Campbell was thus denied the effective assistance of counsel.” While
attorneys for the State moved to go to trial by June 29, they conceded discovery would not be completed by that date.
Campbell himself agreed to the final trial continuance. The fact that trial began within 6 months of arraignment, albeit
with more evidence, did not prejudice Campbell’s defense. Trial within 60 days is not a constitutional mandate. Accord,
State v. White, 94 Wash.2d 498, 501, 617 P.2d 998 (1980); Barker v. Wingo, 407 U.S. 514, 523, 92 S.Ct. 2182, 2188, 33
L.Ed.2d 101 (1972) (“no constitutional basis for holding that the speedy trial right can be qualified into a specified number
of days or months”). Counsel was properly granted the right to waive trial in 60 days, over defendant’s objection, to ensure
effective representation and a fair trial.
 State v. Berrysmith, 87 Wn.App. 268, 280, 944 P.2d 397 (Div. 1 1997), review denied, 134 Wn.2d
1008, 954 P.2d 277 (1998) —
Berrysmith contends that his CrR 3.3 right to a speedy trial was violated by Judge DuBuque’s decision to grant a 3-week
recess to allow Berrysmith’s newly-appointed co-counsel to prepare for trial. The continuance was granted based on CrR
3.3(h)(2), “administration of justice,” and CrR 3.3(d)(8), “unforeseen or unavoidable circumstances.” The facts of this
case clearly reflect unforeseen or unavoidable circumstances as required by CrR 3.3(h)(2). Once Mr. Mulligan acquired a
reasonable belief that Berrysmith intended to commit perjury despite being warned, his motion to withdraw from the case
was ethically unavoidable. The attendant delay became unavoidable because Berrysmith told Judges Finkle and DuBuque
that his decision to represent himself had not been voluntary. Given these circumstances, a 3-week delay to allow cocounsel to prepare for trial was entirely appropriate. Berrysmith’s CrR 3.3 speedy trial rights were not violated.
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 State v. Woods, 143 Wn.2d 561, 23 P.3d 1046, cert. denied, 534 U.S. 964, 122 S.Ct. 374, 151 L.Ed.2d
285 (2001) (Death penalty conviction affirmed.)
In short, we are loath to find that the trial court acted in a manifestly unreasonable fashion by refusing to require a
defendant charged with a capital offense to proceed to trial without affording his counsel an adequate opportunity to
explore the State's scientific evidence. We are also reluctant to hold that the trial court acted for untenable reasons when it
delayed the trial to ensure that Woods would receive adequate representation from his public defenders. We conclude,
therefore, that the trial court did not abuse its discretion in granting the second continuance of the trial date.
 State v. Vicuna, 119 Wn.App. 26, 79 P.3d 1 (Div. 1 2003), review denied, 152 Wn.2d 1008, 99 P.3d
896 (Trial court improperly permitted defense counsel to withdraw on eve of trial. But dismissal is not
required because an attorney may waive a client’s procedural speedy trial right even if the client objects.)—
Vicuna relies upon State v. Franulovich, 18 Wash.App. 290, 293, 567 P.2d 264 (1977), which held that defense counsel has
the authority to waive a defendant's procedural rights so long as counsel does so competently and it does not affect the
defendant's constitutional speedy trial right. Franulovich, 18 Wash.App. at 292, 567 P.2d 264. In Franulovich, an attorney's
waiver of the 90-day rule without his client's consent was valid and binding in the absence of any alleged incompetency.
Franulovich, 18 Wash.App. at 293, 567 P.2d 264.
Under Franulovich, a defendant cannot contest his attorney's waiver of his procedural speedy trial right, even if made
without his consent. Franulovich, 18 Wash.App. at 293, 567 P.2d 264. See also State v. Campbell, 103 Wash.2d 1, 691
P.2d 929 (1984) (holding that the court may grant defense counsel's *34 motion for a continuance over defendant's
objection if necessary "in the administration of justice" for pretrial preparation). The rule followed in Franulovich and later
in State v. Thomas, 95 Wash.App. 730, 738, 976 P.2d 1264 (1999), upon which Vicuna also relies, is that a defendant must
first show inadequate representation before the trial court can invalidate a speedy trial waiver.
Vicuna makes broad assertions that the alleged conflict could have and should have been discovered earlier, but there is no
evidence to support this claim. It is also difficult to reconcile his arguments. He asserts on the one hand that there was no
conflict, and therefore no grounds for a continuance, but argues on the other hand that there was a conflict and that his
attorney should have disclosed it sooner. These arguments are inherently contradictory.
Furthermore, in requesting withdrawal and acknowledging that this would require a continuance of his client's speedy trial
date, Vicuna's attorney made an implied waiver of the speedy trial rule. See State v. White, 23 Wash.App. 438, 441, 597
P.2d 420, aff'd, 94 Wash.2d 498, 617 P.2d 998 (1980). It may be that Vicuna's attorney believed in good faith that he had a
conflict, and on this record, it is impossible to tell whether he was correct. Because Vicuna has not shown that his attorney
provided inadequate representation, there is no basis on direct appeal to invalidate his attorney's waiver, although such
issues could potentially be raised in a personal restraint petition.
Thomas also presented a situation where the trial court's erroneous grant of a motion to withdraw and the resulting
continuance were invited by the defense. Under such circumstances, the Thomas court held that "a speedy trial waiver
forced solely by defense counsel's conduct, and not in any way attributable to the State or the court, is not a violation of
Criminal Rule 3.3, and does not justify a dismissal of charges." Thomas, 95 Wash.App. 730, 976 P.2d 1264. This rule is
applicable here. Requiring dismissal in such situations would inappropriately place the State in an adversarial position
against withdrawal to protect its interest in preventing *35 speedy trial violations. The State should not be forced to
advocate against withdrawal when it has no factual basis for advancing such an argument, and those facts are uniquely in
defense counsel's possession.
Case Law — Speedy Trial — Failure to Subpoena Witnesses
 State v. Hairychin, 136 Wn.2d 862, 968 P.2d 410 (1998) (Juvenile second degree assault conviction
reversed. State is unable to show due diligence required under JuCR 7.8(b) when it fails to make any effort
to subpoena witnesses. State v. Adamski, 111 Wn.2d 574, 761 P.2d 621 (1988).)
Case Law — Speedy Trial — Felony Initially Filed in District Court
 State v. King, 94 Wn.App. 811, 970 P.2d 355, 357 (Div. 1 1999) (Assault 3 initially filed in District
Court. Counsel filed notice of appearance. District Court case dismissed and filed in Superior Court, but
after speedy trial expired based upon notice of appearance. Conviction reversed.) —
The State contends that it was King’s actual physical appearance in court that starts the clock for purposes of the superior
court rules because the district court rules cease to apply in superior court. The State supports its argument with State v.
Wernick, wherein we stated that the speedy trial rule contained in JCrR 3.08, the predecessor to CrRLJ 3.3, was
inappropriate for use in felony cases. Wernick, however, sought dismissal of a superior court felony charge on the basis
that his speedy trial rights were violated in district court under district court rules. Because Wernick dealt with an
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assertion in a superior court action of district court speedy trial violations, it differs significantly from this case. Here, it is
the superior court rule itself that is at issue.
Addressing King’s speedy trial claims under the superior court rules requires we address the definition of the phrase
“appearance in district court.” It is noteworthy that CrR 3.3 does not use the word “arraignment,” the definition of which
conflicts between the superior and district court rules. Rather, CrR 3.3(c)(2)(ii) uses the word “appearance,” which while
not defined in the superior court rules, is defined by the district court rules. Those rules unequivocally state that a
defendant’s attorney’s written notice of appearance constitutes an “appearance” for purposes of establishing the speedy
trial time periods.
Thus, the superior court rules not only explicitly refer to the district court rules, they do so by reference to an event
occurring in district court only as that event is defined by the district court rules. Accordingly, we hold that “appearance in
district court” under CrR 3.3(c)(2)(ii) must mean an appearance by any of the means permitted by district court rules.
Case Law — Speedy Trial — Forcing Speedy Trial Waiver by Late Amendment of
Charges
See 3-3.9 Discretion in the charging decision, Case Law — Limitation on Charging Decision — Forcing
Speedy Trial Waiver, infra.
Case Law — Speedy Trial — Infraction Resolution Before Criminal Conviction
 State v. Keltner, 102 Wn.App. 396, 9 P.3d 838 (Div. 1 2000) (Felony elude. After defendant resolved
traffic infractions issued out of incident for failing to yield right of way and failing to obey restrictive sign
by paying fines, he was convicted of felony. Conviction affirmed since infractions are civil, not criminal,
and thus the criminal rules regarding mandatory joinder and speedy trial do not apply upon resolution of the
infraction.)
Case Law — Speedy Trial — Illness of Witness or Counsel
 State v. Koerber, 85 Wn.App. 1, 3-5, 931 P.2d 904 (Div. 1 1997) (trial court dismissed case after being
informed by the State the night before trial that a critical witness was ill and the State did not know when
the witness would become available; Held: CrR 8.3(b) dismissal not warranted, dismissal reversed and
remanded) —
…Criminal convictions should not be dismissed for minor acts of negligence by third parties that are beyond the State’s
direct control when there is no material prejudice to the defendant. The State did not engage in any unfair “gamemanship,”
or intentional acts, to prevent the court from administering justice. The State’s conduct did not warrant dismissal of its
case against Koerber, and was an untenable ground for dismissal.
The trial judge ignored reasonable alternatives when he readily ordered the extraordinary remedy of dismissal. Dismissal
of a criminal case is a remedy of last resort, and a trial judge abuses discretion by ignoring intermediate remedial steps.
We hold that the trial judge abused his discretion.
If analyzed as a CrR 8.3(b) dismissal (despite the trial court’s disavowal of this basis for the dismissal), we would
nevertheless conclude that reversal is required. In considering whether a criminal case may be dismissed under CrR 8.3(b),
the trial court must determine: (1) whether there has been any governmental misconduct or arbitrary action, and (2)
whether there has been prejudice to the rights of the accused.
The trial court’s authority under CrR 8.3(b) to dismiss has been limited to “truly egregious cases of mismanagement or
misconduct by the prosecutor.” Dismissal of a criminal proceeding is an extraordinary remedy. Absent a finding of
prejudice to the defendant, dismissal of a criminal case is not warranted. Fairness to the defendant underlies the purpose of
CrR 8.3(b).
Even if the State’s conduct in handling Koerber’s case rose to the level of “arbitrary action or governmental conduct”
warranting dismissal, dismissal would still be inappropriate because the record does not establish that there was any
prejudice to Koerber resulting from that conduct. The only mention of prejudice to Koerber came from his attorney, who
told the court that Koerber would be prejudiced by a continuance because of his schedule of working nights and attending
court in the day. The judge responded that Koerber’s work schedule was not his concern, but that continuing the case
would be an inconvenience to the jury. The trial court abused its discretion when it dismissed without finding prejudice to
Koerber.
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 State v. Smith, 104 Wn.App. 244, 15 P.3d 711 (Div. 2 2001) (Second degree assault with deadly
weapon, unlawful possession of firearm, and attempting to elude. Convictions reversed due to speedy trial
violation based upon continuance granted due to routine court congestion.) —
FN18. Nothing herein means that on January 20, the trial court could not have continued this case for more than five days,
based on CrR 3 .3(h)(2), CrR 3.3(g)(3), and defense counsel’s illness. State v. Pomeroy, 18 Wash.App. 837, 842-43, 573
P.2d 805 (1977) (holding a new speedy trial period begins when the original trial date is struck due to the illness of defense
counsel); see also State v. Greene, 49 Wash.App. 49, 55-56, 742 P.2d 152 (1987) (finding that a defense counsel’s illness
justifies a delay “in the administration of justice”); State v. Colbert, 17 Wash.App. 658, 663, 564 P.2d 1182 (holding
continuance based on defense counsel’s illness was “necessary to protect the [defendant’s] due process rights”), review
denied, 89 Wash.2d 1010 (1977); State v. Perez, 16 Wash.App. 154, 156, 553 P.2d 1107 (1976) (“once a valid continuance
is granted ... the wise discretion of the trial court may be used in exceptional circumstances to set cases beyond the 60 day
limit of CrR 3.3”). It clearly could have, under CrR 3.3(h)(2). But it did not.
Case Law — Speedy Trial — Judicial Conference
 State v. Flinn, ___ Wn.2d ___, 110 P.3d 748 (Apr. 28, 2005) (Consideration of upcoming judicial
conference as factor in granting continuance similar to court congestion.) —
If the sole reason for the continuance were the judicial conference, then the justification for the continuance would be
similar to court congestion and the court would have to document the details of unavailable courtrooms and judges.
Because the judicial conference was not the reason for the continuance, Flinn has not shown that the good cause found was
manifestly unreasonable.
Case Law — Speedy Trial — Military Mobilization
 State v. Nguyen, 68 Wn.App. 906, 847 P.2d 936, review denied, 122 Wn.2d 1008, 859 P.2d 603 (Div. 1
1993) (Robbery case continued approximately 10 days passed speedy trial due to unexpected National
Guard callup of investigating detective. Affirmed.)
In addition, the record reflects that Detective Leyerle had already appeared on September 4, 1990, to testify in
connection with preliminary matters related to Nguyen's *916 trial. This is a further indication that the State properly
notified the detective and that he intended to comply with that notification. The witness could have more promptly notified
the parties and the court of his unavailability. However, we are not prepared to hold that a witness is required to assess the
legal implications of an order federalizing the Air National Guard or to challenge the authority of his commanding officer
to order him to report for duty because he is under subpoena. The detective's unavailability was not a personal or voluntary
absence, and it was unforeseeable that a call to duty would come just as Nguyen's case was due to go to trial.
Further, Nguyen has not shown that he sustained any prejudice as a result of the continuance. Detective Leyerle actually
returned just 1 week after the motion was granted. At that time, the case was continued until August 23. It was later
continued an additional day, at defense counsel's request to accommodate his trial schedule. Thus, the portion of the delay
attributable to the continuance was only 7 days. For these reasons, and for the further reason that Nguyen's trial did in fact
commence with the motion on August 10 which was within the speedy trial period, the trial court did not abuse its
discretion in granting a continuance.
[Note. Pamela Loginsky, Staff Attorney for the Washington Association of Prosecuting Attorneys, has
noted that prosecutors have some options when dealing with unavailable witnesses due to activation for
military service.] —
1. A perpetuation deposition may be sought under CrR 4.6 or CrRLJ 4.6. These depositions may only be used at trial in lieu
of the witness’ presence if the defendant was given notice of the deposition and the defendant and counsel were given an
opportunity to participate in the taking thereof.
2. Speedy trial is tolled while the witness is on military call-up. See generally State v. Nguyen, above, and State v. Day, 51
Wn.App. 544, 549, 754 P.2d 1021, review denied, 111 Wn.2d 1016 (Div. 3 1988) (unavailability of material state witness
is a valid ground for continuing a criminal trial where there is a valid reason for the unavailability, the witness will become
available within a reasonable time, and there is no substantial prejudice to the defendant). If the period of service drags on
too long, the defendant may be able to obtain dismissal on Sixth Amendment grounds even though the court rule was not
violated.
3. The charge can be dismissed without prejudice and refiled after the witness returns. The statute of limitations, though,
will continue running. The case would have to be refiled within the SOL plus the time the charge had been pending in
court. If the charge is filed outside the statute of limitations, the prosecutor needs to explain the tolling in the charging
document. E.g. “On or about the ___ day of ______, ____, in the County of _____, State of Washington, the above-named
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Defendant did … , and furthermore, this charge was previously pending in above-entitled court from the ___ day of
_____, _____, through the ___ day of _____, _____; contrary to RCW [insert crime] and RCW 9A.04.080(2).”
Case Law — Speedy Trial — Runs Until Dismissal Order Entered
 State v. Duffy, 86 Wn.App. 334, 936 P.2d 444 (Div. 3 1997) (Defendant booked into jail on felony
elude, DUI and hit and run attended. A citation was giving to defendant charging him with DUI in Spokane
Municipal Court. Defendant did not sign the citation. Defendant’s attorney thereafter filed a notice of
appearance in superior court, and waived arraignment. The city attorney decided not to pursue the DUI
charge, and referred it to the county prosecutor who was handling the felony elude. A letter was sent to the
defense saying the case was declined. The municipal court arraignment date was cancelled, but no order of
dismissal was ever entered in the municipal court. Defendant thereafter charged with all three charges in
superior court. DUI dismissal affirmed.)
[Note. The DUI was dismissed because speedy trial continued in municipal court. Prosecutors should
ALWAYS obtain an order of dismissal to stop speedy trial if the case is to be referred to another
prosecuting authority. Similarly, prosecutors should make sure a written order of dismissal is entered if a
court orally dismisses a case. Often, the court will seek written findings and want to set the case over. This
is fine, but speedy trial is still running until the dismissal order is entered. So, have the written dismissal
order entered immediately after the oral dismissal order, and set the case over for entry of findings if an
appeal is anticipated. Failure to do so may moot the appeal if speedy runs before the written order of
dismissal is entered.]
 State v. Hoffman, 150 Wn.2d 536, 78 P.3d 1289 (2003) (Juvenile convicted following revision of order
for dismissal entered by commissioner. Held that commissioner’s dismissal of charge tolled speedy trial.)
Case Law — Speedy Trial — Training
 State v. Jones, 117 Wn.App. 721, 72 P.3d 1110 (Div. 1 2003), review denied, 151 Wn.2d 1006, 87
P.3d 1184 (2004) (Four day continuance granted to accommodate the arresting officer’s mandatory training
proper.)
Case Law — Speedy Trial — Vacations
 State v. Selam, 97 Wn.App. 140, 982 P.2d 679, 680-81 (Div. 3 1999), review denied, 140 Wn.2d 1013,
5 P.3d 9 (2000) (Third degree assault conviction affirmed. Court granted continuance to one day beyond
the speedy trial period to accommodate defense counsel’s vacation) —
No reported Washington cases review CrR 3.3(h)(2) continuances based on the vacation plans of the defense counsel.
Such continuances have been granted due to the scheduled vacations of investigating officers. See, e.g., State v. Grilley,
67 Wash.App. 795, 799, 840 P.2d 903 (1992). As Grilley notes, “if conflicts with previously scheduled vacations of
investigating officers could never be considered as a proper basis for a relatively brief continuance beyond the speedy trial
period, we doubt that some officer witnesses would ever be able to take vacations.” Id. A deputy prosecutor’s
“reasonably planned vacation” may also be an unavoidable circumstance justifying a CrR 3.3(d)(8) extension. State v.
Kelley, 64 Wash.App. 755, 767, 828 P.2d 1106 (1992). “To construe CrR 3.3 otherwise,” declares Kelley, “would be to
deprive deputy prosecutors of the dignity they deserve, and would result eventually in less effective justice as well as in
unfairness in the administration of justice.” Id.
As Mr. Selam notes, Kelley further holds that the State has a responsibility to attempt to reassign a criminal case to the
next available deputy prosecutor. Substitution of defense counsel is not controlled by the State, however, and involves
considerations of counsel adequacy addressed only after the defendant properly moves the court. See, e.g., State v.
DeWeese, 117 Wash.2d 369, 375-76, 816 P.2d 1 (1991). Mr. Selam never indicated he desired different representation.
Defense attorneys are entitled to at least the same degree of dignity as deputy prosecutors. More important, Mr. Selam
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does not show that he was prejudiced in any manner by the one-day delay. Accordingly, we cannot say the trial court
abused its discretion in granting a brief continuance while the defense counsel was on vacation.
 State v. Jones, 117 Wn.App. 721, 72 P.3d 1110 (Div. 1 2003), review denied, 151 Wn.2d 1006, 87
P.3d 1184 (2004) (One week continuance granted to accommodate defense’s counsel’s prescheduled
vacation proper.)
Case Law — Speedy Trial — Waiver — Dismissal and Re-Filing
 State v. Hamilton, 121 Wn.App. 633, 90 P.3d 69 (Div. 3 2004) (In case of first impression, court holds
under former CrRLJ 3.3(c)(5) (1987) that a speedy trial waiver expires upon dismissal of charges in one
county even though the charges are refiled in another county. Dismissal affirmed.) —
In any event, Mr. Hamilton's waiver was specific to the case in the Chelan County District Court. Once that case was
dismissed, the waiver no longer served a purpose in Chelan and did not transfer to Douglas County. In effect, the dismissal
terminated the case and Mr. Hamilton's waiver. Since 67 days had run on the speedy trial clock in Chelan County, when
Mr. Hamilton was re-arraigned in Douglas County only 23 days remained for a speedy trial. The Douglas County court did
not hold the pretrial hearing until June 11, at which time Mr. Hamilton moved to dismiss for the speedy trial violation. His
trial occurred on June 28, 2001, well after the speedy trial deadline expired.
[Note. Theoretically, the Hamilton result will not occur under current CrRLJ 3.3(c)(2)(i) since the waiver
resets the initial commencement date after the expiration of the waiver. In Hamilton, Douglas County
would have had 90 days after arraignment in Douglas County. But caution under the current rules if the
case is refiled in the same county. See CrRLJ 3.3(3)(4) where the period between dismissal and refiling is
tolled, making the new arraignment date irrelevant for time for trial computation.]
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Standard 3-2.10 Supercession and Substitution of Prosecutor
(a) Procedures should be established by appropriate legislation to the end that the governor or other elected state official is
empowered by law to suspend and supersede a local prosecutor upon making a public finding, after reasonable notice and
hearing, that the prosecutor is incapable of fulfilling the duties of office.
(b) The governor or other elected official should be empowered by law to substitute special counsel in the place of the local
prosecutor in a particular case, or category of cases, upon making a public finding that this is required for the protection of
the public interest.
Excerpt from Commentary to ABA Standard
“Supersession … Some form of summary action for emergencies and some procedures for supersession for particular cases
are needed … Physical disability to discharge the duties of office, dereliction of duty, serious conflicts of interest and other
grounds encompassed in the traditional notion of ‘cause’ should be considered grounds on which the governor or other
designated official or public entity may act under appropriate procedures affording due process.”
“Substitution. A substitution may be called for in circumstances where supersession is not necessary. A temporary need
may arise when a prosecutor asks to be relieved because of a conflict of interest or, where a prosecutor declines to do so,
when substitution appears necessary …”
Const. art. 4, § 9 — Removal of Judges, Attorney General, Etc.
Any judge of any court of record, the attorney general, or any prosecuting attorney may be removed from office by joint
resolution of the legislature, in which three-fourths of the members elected to each house shall concur, for incompetency,
corruption, malfeasance, or delinquency in officer, or other sufficient cause stated in such resolution. But no removal shall
be made unless the officer complained of shall have been served with a copy of the charges against him as the ground of
removal, and shall have an opportunity of being heard in his defense.…
RCW 43.10.090 — Criminal investigations — Supervision
Upon written request of the governor the attorney general shall investigate violations of the criminal laws within this
state.
If, after such investigation, the attorney general believes that the criminal laws are improperly enforced in any county,
and that the prosecuting attorney of the county has failed or neglected to institute and prosecute violations of such criminal
laws, either generally or with regard to a specific offense or class of offenses, the attorney general shall direct the
prosecuting attorney to take such action in connection with any prosecution as the attorney general determines to be
necessary and proper.
If any prosecuting attorney, after the receipt of such instructions from the attorney general, fails or neglects to comply
therewith within a reasonable time, the attorney general may initiate and prosecute such criminal actions as he shall
determine.…
Conflict of Interest
For a detailed discussion of conflict of interest or disability of prosecuting attorney issues, see RCW
36.27.030 and section 3-1.3 supra.
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Standard 3-2.11 Literary or Media Agreements
A prosecutor, prior to conclusion of all aspects of a matter, should not enter into any agreement or understanding by which
the prosecutor acquires an interest in literary or media rights to a portrayal or account based in substantial part on
information relating to that matter.
Excerpt from Commentary to ABA Standard
“An agreement by which a prosecutor acquires literary or media rights concerning a pending criminal mater can create a
conflict between the interests of the government in obtaining a just and fair outcome and the personal interests of the
prosecutor in having a good (or outrageous) story to tell … Hence, entering into such literary or media agreements prior to
the conclusion of all aspects of a criminal matter should be scrupulously avoided.”
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DECISION
Standard 3-3.1 Investigative Function of Prosecutor
(a) A prosecutor ordinarily relies on police and other investigative agencies for investigation of alleged criminal acts, but
the prosecutor has an affirmative responsibility to investigate suspected illegal activity when it is not adequately dealt with
by other agencies.
(b) A prosecutor should not invidiously discriminate against or in favor of any person on the basis of race, religion, sex,
sexual preference, or ethnicity in exercising discretion to investigate or to prosecute. A prosecutor should not use other
improper considerations in exercising such discretion.
(c) A prosecutor should not knowingly use illegal means to obtain evidence or to employ or instruct or encourage others to
use such means.
(d) A prosecutor should not discourage or obstruct communication between prospective witnesses and defense counsel. A
prosecutor should not advise any person or cause any person to be advised to decline to give to the defense information
which such person has the right to give.
(e) A prosecutor should not secure the attendance of persons for interviews by use of any communication which has the
appearance or color of a subpoena or similar judicial process unless the prosecutor is authorized by law to do so.
(f) A prosecutor should not promise not to prosecute for prospective criminal activity, except where such activity is part of
an officially supervised investigative and enforcement program.
(g) Unless a prosecutor is prepared to forgo impeachment of a witness by the prosecutor's own testimony as to what the
witness stated in an interview or to seek leave to withdraw from the case in order to present the impeaching testimony, a
prosecutor should avoid interviewing a prospective witness except in the presence of a third person.
Excerpt from Commentary to ABA Standard
“Affirmative Responsibility to Investigate … It is important, therefore, that in some circumstances the prosecutor take the
initiative to investigate suspected criminal acts independent of citizen complaints or police activity …”
“Discriminatory Investigation or Prosecution. While prosecutors have wide discretion in deciding who to investigate (and
who not to investigate) and who to charge (and who not to charge), it is nonetheless improper for such otherwise
appropriate prosecutorial discretion to be exercised in an arbitrary or discriminatory manner. The integrity of the
prosecution office is severely if not fatally compromised when such bias is introduced into the decision-making process;
indeed, even the appearance of such a discriminatory motivation in this setting can hamper the effective operation of the
prosecution function by diminishing respect for the office in the eyes of the public …”
“Illegality in Obtaining Evidence … Prosecutors, as representatives of the people in upholding all of the laws, must take
the lead in assuring that investigations of criminal activities are conducted lawfully and in full and ungrudging accordance
with the safeguards of the Bill of Rights, as implemented by legislation and the decisions of the courts. In addition,
prosecutors must also avoid whatever temptation may exist to use defense counsel in pending cases as informants
themselves, given the threat inherent in such contacts to the rights of accused persons protected by the Sixth Amendment
right to counsel.”
“Obstructing Communications Between Witnesses and the Defense. Prospective witnesses are not partisans. They should
be regarded as impartial and as relating the facts as they see them … In the event a witness asks the prosecutor or defense
counsel, or a member of their staffs, whether it is proper to submit to an interview by opposing counsel or whether it is
obligatory, the witness should be informed that there is no legal obligation to submit to an interview. It is proper, however,
and may be the duty of both counsel in most cases to interview all persons who may be witnesses and it is in the interest of
justice that witnesses be available for interview by counsel …”
“It is proper for a prosecutor to tell a witness that he or she may contact the prosecutor prior to talking to defense counsel.
The prosecutor may also properly request an opportunity to be present at defense counsel’s interview of a witness, but may
not make his or her presence a condition of holding the interview. It is also proper to caution a witness concerning the need
to exercise case in subscribing to a statement prepared by another person …”
“Use of Colorable Judicial Process … Absent specific statutory subpoena power, a prosecutor’s communication requesting
a person to appear for an interview should be couched in terms of a request; it should not simulate a process or summons
that the prosecutor does not have power to issue …”
“Promise Not to Prosecute … [T]his standard recognizes that it is not improper for a prosecutor to promise not to prosecute
an informant for specific criminal activity in which the informant may engage as part of a supervised effort to obtain
evidence of crime committed by other actors …”
1-
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“Interviews by the Prosecutor Personally. Two possible problems can arise in relation to the impeachment of witnesses.
The first may arise out of a prosecutor’s interview with a ‘friendly’ witness. The second relates to the need to interview
witnesses likely to be called by the defense so that the prosecutor will be better able to conduct cross-examination or to
decide whether to cross-examine at all. The ‘friendly’ witness is likely to be cooperative in given and signing a statement,
and the problem of impeaching the witness will arise only if, unexpectedly, the witness’s testimony varies from the pretrial
statement and takes counsel by surprise.”
“The more frequently encountered problem is impeachment of an adverse witness whose testimony varies from what the
witness gave the prosecutor before trial. It is here that there may be need to conduct interviews of witnesses with a third
person present, since hostile witnesses do not often sign written statements for opposing counsel. Use of a third person is
virtually the only effective means of later impeaching such a witness … Although a lawyer is sometimes permitted to
withdraw in order to testify, this is largely a matter entrusted to the court’s discretion … It is normally not appropriate,
however, for a lawyer to offer impeachment testimony and also remain in the case as counsel for the defendant … ”
RPC 3.4 (a) Fairness to Opposing Party and Counsel
A lawyer shall not: (a) Unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a
document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do
any such act…
WSBA Published Informal Opinion 88-2
Advice by Prosecuting Attorneys to Prospective Witnesses
(1) May a prosecutor discourage witnesses from talking with a defense attorney or investigator? After citing the above
ABA Standard and Commentary, the Opinion noted: “…[A] prosecutor who discourages or otherwise obstructs witnesses
from consenting to defense interviews would violate RPC 3.4.”
The Opinion additionally cites CrR 4.7(h)’s prohibition on any party impeding an investigation, and State v. Burri, 87
Wn.2d 175, 550 P.2d 507 (1976) (prosecutor instructed alibi witnesses in special inquiry not to discuss their testimony with
defense counsel; the Supreme Court affirmed the trial court’s dismissal of the case, noting a defendant’s constitutional right
to make a full investigation of the facts and applicable law).
(2) May a prosecutor encourage witnesses not to be interviewed unless a prosecutor is present? “We believe that
encouraging witnesses not to be interviewed unless a prosecutor is present constitutes obstructing access to the witness,
which is prohibited by RPC 3.4.”
(3) May a prosecutor advise a witness of his or her right to be represented by a person of the witness’s choice during a
defense interview? “We believe it is permissible for the prosecutor to advise a witness of his or her rights as a witness.
Those rights include the right, if the witness chooses, to have the prosecution present at a defense interview.” The above
ABA Standard and Commentary were cited in support of this Opinion.
Case Law — Duty to Correct Perjured Testimony
 United States v. LaPage, 231 F.3d 488 (9th Cir. 2000) (During third trial against defendant, a witness
provided false testimony in contradiction of testimony at a prior trial. The prosecutor knew of the
falsehood. Conviction reversed.) —
The due process clause entitles defendants in criminal cases to fundamentally fair procedures. It is fundamentally unfair
for a prosecutor to knowingly present perjury to the jury. Over forty years ago, the Supreme Court made it clear that “a
conviction obtained through the use of false evidence, known to be such by representatives of the State, must fall under the
Fourteenth Amendment.”” The same result obtains when the State, although not soliciting false evidence, allows it to go
uncorrected when it appears.” The Court explained that this principle “does not cease to apply merely because the false
testimony goes only to the credibility of the witness.” Rather, “[a] lie is a lie, no matter what its subject.” Because the use
of known lies to get a conviction deprives a defendant of his constitutional right to due process of law, we must reverse
LaPage’s conviction unless Manes’s false testimony was “harmless beyond a reasonable doubt.” That is, we must reverse “
‘if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’ “
All perjury pollutes a trial, making it hard for jurors to see the truth. No lawyer, whether prosecutor or defense counsel,
civil or criminal, may knowingly present lies to a jury and then sit idly by while opposing counsel struggles to contain this
pollution of the trial. The jury understands defense counsel’s duty of advocacy and frequently listens to defense counsel
with skepticism. A prosecutor has a special duty commensurate with a prosecutor’s unique power, to assure that defendants
receive fair trials. “It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as
it is to use every legitimate method to bring about one.”
The failure to correct prosecutorial testimony known to be false may have made a difference to the outcome in this case,
so the conviction cannot stand.
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 Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005) (Prosecutor knowingly presented false evidence to the
jury and made false representations to the trial judge as to whether the State had agreed not to prosecute cosuspect on his pending felony charges. Co-suspect’s attorney knew about deal, but co-suspect was not told.
Due process violation found, error not harmless, and murder conviction reversed.) —
The Supreme Court has long emphasized "the special role played by the American prosecutor in the search for truth in
criminal trials." Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). As we observed in
Commonwealth of The Northern Mariana Islands v. Mendiola, 976 F.2d 475, 486 (9th Cir.1992) (citations omitted),
overruled on other grounds by George v. Camacho, 119 F.3d 1393 (9th Cir.1997) (en banc):
The prosecuting attorney represents a sovereign whose obligation is to govern impartially and whose interest in
a particular case is not necessarily to win, but to do justice.... It is the sworn duty of the prosecutor to assure that
the defendant has a fair and impartial trial.
One of the bedrock principles of our democracy, "implicit in any concept of ordered liberty," is that the State may not use
false evidence to obtain a criminal conviction. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)
(internal citation omitted). Deliberate deception of a judge and jury is "inconsistent with the rudimentary demands of
justice." Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935). Thus, "a conviction obtained through
use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment."
Napue, 360 U.S. at 269, 79 S.Ct. 1173 (citations omitted). "Indeed, if it is established that the government knowingly
permitted the introduction of false testimony reversal is 'virtually automatic.' " United States v. Wallach, 935 F.2d 445, 456
(2d Cir.1991) (quoting United States v. Stofsky, 527 F.2d 237, 243 (2d Cir.1975)).
In addition, the state violates a criminal defendant's right to due process of law when, although not soliciting false
evidence, it allows false evidence to go uncorrected when it appears. See Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2
L.Ed.2d 9 (1957); Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942).
In this case, the State knowingly presented false evidence to the jury and made false representations to the trial judge as to
whether the State had agreed not to prosecute James on his pending felony charges. James's attorney testified in federal
court that there had been a deal between himself and then-Deputy District Attorney Terrence Van Oss. …
The State contends that there was no Napue violation because James did not commit perjury. According to the State,
Napue renders unconstitutional only acts of perjury. Therefore, the State reasons, because James was ignorant of the deal,
he did not commit perjury and the State did not run afoul of Napue. In short, the State contends that it is constitutionally
permissible for it knowingly to present false evidence to a jury in order to obtain a conviction, as long as the witness used
to *981 transmit the false information is kept unaware of the truth.
The State is wrong. Napue, by its terms, addresses the presentation of false evidence, not just subornation of perjury. As
Chief Justice Warren wrote:
[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives
of the State, must fall under the Fourteenth Amendment.
360 U.S. at 269, 79 S.Ct. 1173 (citations omitted). In describing the rule, the Court itself discussed the use of "false
evidence, including false testimony...." Id. There is nothing in Napue, its predecessors, or its progeny, to suggest that the
Constitution protects defendants only against the knowing use of perjured testimony. Due process protects defendants
against the knowing use of any false evidence by the State, whether it be by document, testimony, or any other form of
admissible evidence. See Phillips v. Woodford, 267 F.3d 966, 984-85 (9th Cir.2001) ("It is well settled that the
presentation of false evidence violates due process.") (citing Napue, 360 U.S. at 269, 79 S.Ct. 1173).
Further, contrary to the State's theory, that the witness was tricked into lying on the witness stand by the State does not, in
any fashion, insulate the State from conforming its conduct to the requirements of due process. As our court noted in
Northern Mariana Islands v. Bowie, 243 F.3d 1109, 1114 (9th Cir.2001): "Few things are more repugnant to the
constitutional expectations of our criminal system than covert perjury ...." It is reprehensible for the State to seek refuge in
the claim that a witness did not commit perjury, when the witness unknowingly presents false testimony at the behest of the
State. "This saves [the witness] from perjury, but it does not make his testimony truthful." Willhoite v. Vasquez, 921 F.2d
247, 251 (9th Cir.1990) (Trott, J., concurring). The fact that the witness is not complicit in the falsehood is what gives the
false testimony the ring of truth, and makes it all the more likely to affect the judgment of the jury. That the witness is
unaware of the falsehood of his testimony makes it more dangerous, not less so. [FN1]
FN1. We assume for purposes of our analysis that James was, in fact, unaware of the secret deal. But we note
the distinct risk that, in preparing James for his testimony, James's counsel--who did know about the deal-might have influenced the content of that testimony, deliberately or not.
There is nothing redemptive about the sovereign's conspiring to deceive a judge and jury to obtain a tainted conviction.
This is, as Judge Trott put it, "a pernicious scheme without any redeeming features." Id. Napue forbids the knowing
presentation of false evidence by the State in a criminal trial, whether through direct presentation or through covert
subornation of perjury. [FN2]
Further, the argument that the presentation of false testimony, carefully orchestrated to avoid perjury, does not offend the
Constitution flies in the face of Alcorta and Pyle because those cases create an affirmative duty on the part of the
prosecution to correct false testimony at trial, even when the testimony is unsolicited. There is no exception under Alcorta
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and Pyle for solicited false testimony. The State's knowing presentation of false evidence and failure to correct the record at
*982 Hayes's trial violated the Fourteenth Amendment. …
In closing, we must observe that this case is not merely about a peculiar circumstance. As we have noted, this is not the
first time we have been confronted in recent years with schemes to place false or distorted evidence before a jury. Our
criminal justice system depends on the integrity of the attorneys who present their cases to the jury. When even a single
conviction is obtained through perjurious or deceptive means, the entire foundation of our system of justice is weakened.
As we stated in Bowie:
The authentic majesty in our Constitution derives in large measure from the rule of law--principle and process
instead of person. Conceived in the shadow of an abusive and unanswerable tyrant who rejected all authority
save his own, our ancestors wisely birthed a government not of leaders, but of servants of the law. Nowhere in
the Constitution or in the Declaration of Independence, nor for that matter in the Federalist or in any other
writing of the Founding Fathers, can one find a single utterance that could justify a decision by any oathbeholden servant of the law to look the other way when confronted by the real possibility of being complicit in
the wrongful use of false evidence to secure a conviction in court.
Case Law — Duty to Investigate Possible Perjury Initiated By Counsel or Another
Witness
 United States v. Talao, 222 F.3d 1133 (9th Cir. 2000) (Assistant US attorney communicated during
investigation of with bookkeeper (who was represented by the corporate attorney), who initiated contact
and asserted that corporation under criminal suspicion and its attorney were attempting to prevent her from
testifying truthfully. Ninth Circuit holds that the US attorney did not violate ethical rules in speaking with
represented bookkeeper.) —
Few, if any, unethical acts by counsel are more heinous than subornation of perjury. It would be an anomaly to allow the
subornation of perjury to be cloaked by an ethical rule, particularly one manifestly concerned with the administration of
justice. As commentators have noted with regard to the crime-fraud exception to the attorney-client privilege, “[s]ince the
policy of the privilege is that of promoting the administration of justice, it would be a perversion of the privilege to extend
it to the client who seeks advice to aid him in carrying out the illegal or fraudulent scheme.” In a similar vein, it would be a
perversion of the rule against ex parte contacts to extend it to protect corporate officers who would suborn perjury by their
employees.
Again, however, like the attorney-client privilege, the prohibition against ex parte contacts protects that relationship at
the expense of “the full and free discovery of the truth.” For that reason, the attorney-client privilege “applies only where
necessary to achieve its purpose.” When a corporate employee/witness comes forward to disclose attempts by the
corporation’s officers to coerce her to give false testimony, the prohibition against ex parte contacts does little to support an
appropriate attorney-client relationship. Once the employee makes known her desire to give truthful information about
potential criminal activity she has witnessed, a clear conflict of interest exists between the employee and the corporation.
Under these circumstances, corporate counsel cannot continue to represent both the employee and the corporation. Indeed,
Brose made clear in his testimony at the evidentiary hearing before the district court that if Ferrer had approached him with
information adverse to the interests of the corporation he would have advised her that she should retain her own lawyer.
Under these circumstances, because the corporation and the employee cannot share an attorney, ex parte contacts with the
employee cannot be deemed to, in any way, affect the attorney-client relationship between the corporation and its counsel.
In this setting, the corporation’s interest, therefore, clearly does not provide the basis for application of the rule.
We strongly emphasize, however, that a witness’s assertion that she is afraid of testifying in an attorney’s presence does
not, without more, suggest that the attorney has engaged in any ethical or legal violation. Indeed, it is not unknown for
corporate employees involved in alleged wrongdoing to attempt to gain favor with U.S. Attorneys by claiming that
corporate officials or corporate counsel directed them to act unlawfully. Clients are sometimes willing to throw lawyers to
the wolves when they believe that doing so will let them avoid prosecution or a longer prison sentence. Claims of lawyer
misconduct made under such circumstances should be viewed with a most critical eye.
We should note that the U.S. Attorney here did the right thing in advising Ferrer that she had a right to be represented by
an attorney and giving her the opportunity to contact substitute counsel. When a person who has been represented by
institutional counsel perceives a conflict in that representation and approaches a prosecutor or investigator, the prosecutor
or investigator should do as Harris did here: advise the person of his right to obtain substitute counsel. Furthermore, we do
not mean to suggest that government officials have a license to approach an employee and initiate communications
whenever there is a possible conflict of interest between the employee and the corporation for whom the employee works.
In this case, Ferrer initiated the communications with the U.S. Attorney’s office, and Harris responded properly by
clarifying her ethical duties and advising Ferrer of her right to counsel. It is these circumstances and acts that make the
district court’s finding of an ethical violation improper in this case.
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Case Law — Duty to Investigate Possible Perjury of Rewarded Co-Defendant Called
By The Prosecution Who May Be Framing Another
 Northern Mariana Islands v. Bowie, 243 F.3d 1109 (9th Cir. 2001) (Defendant convicted of murder
and kidnapping. Five co-defendants total, with four making deals and agreeing to testify. Before trial a
letter is found that could have been written by one of the testifying accomplices or by the remaining untried
defendant. The letter suggested that the five co-defendants were framing defendant or at least attempting to
shift primary responsibility for the murder to defendant. Police presented the letter to the prosecution, who
told the police to just file it. The letter was eventually turned over to the defense at some point. Conviction
reversed due to prosecutorial misconduct.) —
Few things are more repugnant to the constitutional expectations of our criminal justice system than covert perjury, and
especially perjury that flows from a concerted effort by rewarded criminals to frame a defendant. The ultimate mission of
the system upon which we rely to protect the liberty of the accused as well as the welfare of society is to ascertain the
factual truth, and to do so in a manner that comports with due process of law as defined by our Constitution. This important
mission is utterly derailed by unchecked lying witnesses, and by any law enforcement officer or prosecutor who finds it
tactically advantageous to turn a blind eye to the manifest potential for malevolent disinformation. See United States v.
Wallach, 935 F.2d 445 (2nd Cir.1991) (“Indeed, if it is established that the government knowingly permitted the
introduction of false testimony ‘reversal is virtually automatic.’ “) (citations omitted); Cf. Franks v. Delaware, 438 U.S.
154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (“[I]t would be an unthinkable imposition upon [the authority of a magistrate
judge] if a warrant affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand
beyond impeachment.”).
Because of the gravity of depriving a person of liberty on the basis of false testimony, the Supreme Court and the United
States Courts of Appeal have fashioned over the years a workable set of precise rules designed not only to remedy
egregious wrongs that have already occurred, but also prophylactically to prevent damaging false testimony from
happening in the first place.
In Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), Chief Justice Warren reinforced this
constitutional imperative. He quoted from a New York Court of Appeals case involving false testimony from a witness
who had been given substantial consideration for his testimony:
A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district attorney has the
responsibility and duty to correct what he knows to be false and elicit the truth.
Id. at 269-70, 79 S.Ct. 1173 (quoting People v. Savvides, 1 N.Y.2d 554, 557, 154 N.Y.S.2d 885, 136 N.E.2d 853, 854-855
(N.Y.Ct.App.1956) (holding that where witness *1116 for the prosecution falsely testified that there was no agreement that
he was to receive lenient treatment for testifying against defendant, Assistant District Attorney should have exposed the lie
of the witness)) (emphasis added).
Running parallel to this line of authority is a related series of cases casting light on the responsibility of prosecutors
exercising the executive power of the state. The seminal case in this line is Berger v. United States, 295 U.S. 78, 88, 55
S.Ct. 629, 79 L.Ed. 1314 (1935), the message of which we summarized in Commonwealth of The Northern Mariana
Islands v. Mendiola, 976 F.2d 475 (9th Cir.1992) (overruled on other grounds in George v. Camacho, 119 F.3d 1393 (9th
Cir.1997)) [FN2]:
FN2. This, of course, was not the first time that we published Justice Sutherland’s message. See Sheppard v.
Rees, 909 F.2d 1234, 1238 (9th Cir.1989); United States v. Krasn, 614 F.2d 1229, 1234 n. 5 (9th Cir.1980);
United States v. Anguloa, 598 F.2d 1182, 1184 (9th Cir.1979).
The prosecuting attorney represents a sovereign whose obligation is to govern impartially and whose
interest in a particular case is not necessarily to win, but to do justice. It is the sworn duty of the prosecutor to
assure that the defendant has a fair and impartial trial.
Id. at 486 (internal citation omitted). See also United States v. LaPage, 231 F.3d 488, 492 (9th Cir.2000) (“A prosecutor
has a special duty commensurate with a prosecutor’s unique power, to assure that defendants receive fair trials.”)
Following these cases, we observed in 1993 that a “prosecutor who does not appreciate the perils of using rewarded
criminals as witnesses risks compromising the truth-seeking mission of our criminal justice system,” and we indicated that
“we expect prosecutors and investigators to take all reasonable measures to safeguard the system against treachery.” United
States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir.1993).
When measured by the controlling rules and standards articulated by the Supreme Court to explicate the special duties
and responsibilities (1) of a prosecutor to see that justice is done and to guard against due process violations caused by
false testimony, and (2) of law enforcement to collect potentially exonerating evidence, the Attorney General’s conduct
when confronted with Mario Reyes’s letter fails on all counts. The plain language in the letter would alert anyone--and
certainly a prosecutor in charge of the Attorney General’s Criminal Division--to the strong possibility that the witnesses in
this case had agreed to testify falsely against Bowie in order to extract the writer of the letter from the center of blame for
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Laude’s death. The author of this letter was arguably Mario Reyes, although it certainly might have been his brother Efrain,
soon to become a prosecution witness.
Faced with this information, the prosecutor’s clear duty under our Constitution was to do exactly the opposite of what he
did. The law in place when the letter was found on November 17, 1992, left no room for doubt that the immediate
constitutional obligation of the State and its representatives to collect potentially exculpatory evidence, to prevent fraud
upon the court, and to elicit the truth was promptly to investigate the letter and to interrogate their witnesses about it. Let us
be clear about this: The prosecutor’s duty to protect the criminal justice system was not discharged in this case simply by
ignoring the content of the letter and by turning it over to the defense, especially in the light of a scheduled joint trial where
one defendant, Bowie, was certain to attempt to use it as evidence against his co-defendant, Mario Reyes. Failing to do
anything about the content of this letter was at least the equivalent of knowingly sitting quietly by while a person called as
your witness lies on the stand. A prosecutor’s “responsibility *1118 and duty to correct what he knows to be false and elicit
the truth,” Napue, 360 U.S. at 269-70, 79 S.Ct. 1173, requires a prosecutor to act when put on notice of the real possibility
of false testimony. This duty is not discharged by attempting to finesse the problem by pressing ahead without a diligent
and a good faith attempt to resolve it. A prosecutor cannot avoid this obligation by refusing to search for the truth and
remaining willfully ignorant of the facts. [FN4] [Emphasis added.]
FN4. We note that it is not always improper for a prosecutor or a lawyer to call to the stand a recalcitrant
witness whose testimony in some respects will not be truthful, but that it must be made clear to the court and to
defense that such an event is occurring, and why. We have in mind as one example, of course, the situation that
occurs when a witness makes a pretrial statement that would appear to be truthful, but then discards that
truthful position in contemplation of an appearance in court, or for any other reason. Federal Rule of Evidence §
801(d) contemplates such an eventuality in connection with prior inconsistent statements of a “turncoat
witness.” The constitutionality of the admission of such evidence as substantive evidence of guilt was
determined in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). See also People v.
Gordon, 10 Cal.3d 460, 471-72, 110 Cal.Rptr. 906, 516 P.2d 298 (Cal.1973) (holding that a prosecutor’s
statement to the jury that his own witness was not going to tell the truth satisfied the reason for the rule on
admonition with respect to accomplice testimony).
What appears clearly from this record is a studied decision by the prosecution not to rock the boat, but instead to press
forward with testimony that was possibly false on the apparent premise that all these accomplices were actually responsible
for Laude’s murder; and not to develop any evidence or information that would either hurt their case or damage the
credibility of their conniving witnesses. To argue as justification for doing nothing, as the Attorney General has done in his
brief, that “the witnesses were subject to full cross- examination concerning the letter,” and that “there is little that a police
interview not under oath could accomplish that could not be accomplished in sworn testimony,” misapprehends the free
standing constitutional duty of the State and its representatives to protect the system against false testimony. Without a
doubt, the record in this case establishes bad faith as a matter of law on the part of the Attorney General’s Office in
refusing to investigate the potentially exonerating evidence that its own witnesses were conspiring to commit perjury. What
emerges from this record is an intent to secure a *1119 conviction of murder even at the cost of condoning perjury. This
record emits clear overtones of the Machiavellian maxim: “the end justifies the means,” an idea that is plainly incompatible
with our constitutional concept of ordered liberty. See Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 96 L.Ed. 183
(1952).
We are struck also by the utter shambles made of this case by the government’s insistence on a joint trial knowing full
well that Bowie could not fail to introduce this letter in an attempt to exculpate himself by fingering his co- defendant. This
ploy *1122 allowed the prosecution indirectly to use the uninvestigated letter against Mario Reyes without having to
authenticate it and to introduce it themselves, and without having to risk further challenge and damage to the credibility of
their own accomplice witnesses. The injection of the damning letter at the insistence of the defense allowed Bowie’s
counsel to introduce evidence of Mario Reyes’s possible responsibility for two other homicides and for framing innocent
people in those cases. Mario Reyes ended up being prosecuted not only by the Attorney General’s Office, but also by
Bowie’s attorney. We highlight this result because it underscores the need in the interest of due process for the government
to do its best to sort out these complications before they go to court. The trial judge recognized this problem and even went
so far as to muse that he might get fired--or have to fire himself--should he follow his instinct and declare a mistrial and
start over. We have no doubt at all that this letter affected the jury’s judgment.
CONCLUSION
Never has it been more true than it is now that a criminal charged with a serious crime understands that a fast and easy
way out of trouble with the law is not only to have the best lawyer money can buy or the court can appoint, but to cut a deal
at someone else’s expense and to purchase leniency from the government by offering testimony in return for immunity, or
in return for reduced incarceration. Our system long ago recognized and embraced this kind of favoritism because, given
our strict and demanding constitutional mandates and rules of evidence, not to do so would insulate many vile and
dangerous outlaws from the reach of the law. Without accomplice cooperation and testimony, many killers, terrorists,
rapists, swindlers, white collar and corporate criminals, corrupt public officials, and others would have *1124 escaped their
just fates. A well constructed and carefully managed deal can make a significant contribution to the rule of law, and to
justice.
On the other hand, because of the perverse and mercurial nature of the devils with whom the criminal justice system has
chosen to deal, each contract for testimony is fraught with the real peril that the proffered testimony will not be truthful, but
simply factually contrived to “get” a target of sufficient interest to induce concessions from the government. Defendants or
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suspects with nothing to sell sometimes embark on a methodical journey to manufacture evidence and to create something
of value, setting up and betraying friends, relatives, and cellmates alike. Frequently, and because they are aware of the low
value of their credibility, criminals will even go so far as to create corroboration for their lies by recruiting others into the
plot, a circumstance we appear to confront in this case.
Such false testimony and false evidence corrupts the criminal justice system and makes a mockery out of its
constitutional goals and objectives. Thus, although the truthful testimony of accomplice witnesses will continue to be of
great value to the law, rewarded criminals also represent a great threat to the mission of the criminal justice system. It is
just as constitutionally unacceptable for the government to put a guilty person in prison on the basis of false evidence as it
is to have an innocent person suffer the same fate.
The authentic majesty in our Constitution derives in large measure from the rule of law--principle and process instead of
person. Conceived in the shadow of an abusive and unanswerable tyrant who rejected all authority save his own, our
ancestors wisely birthed a government not of leaders, but of servants of the law. Nowhere in the Constitution or in the
Declaration of Independence, nor for that matter in the Federalist or in any other writing of the Founding Fathers, can one
find a single utterance that could justify a decision by any oath-beholden servant of the law to look the other way when
confronted by the real possibility of being complicit in the wrongful use of false evidence to secure a conviction in court.
When the Preamble of the Constitution consecrates the mission of our Republic in part to the pursuit of Justice, it does not
contemplate that the power of the state thereby created could be used improperly to abuse its citizens, whether or not they
appear factually guilty of offenses against the public welfare. It is for these reasons that Justice George Sutherland
correctly said in Berger that the prosecution is not the representative of an ordinary party to a lawsuit, but of a sovereign
with a responsibility not just to win, but to see that justice be done. 295 U.S. at 88, 55 S.Ct. 629. Hard blows, yes, foul
blows no. The wise observation of Justice Louis Brandeis bears repeating in this context:
“In a government of laws, existence of the government will be imperiled if it fails to observe the law
scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole
people by its example.... If the government becomes a lawbreaker, it breeds contempt for the law; it invites
every man to become a law unto himself.”
Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 72 L.Ed. 944 (1928).
The ends in our system do not justify the means. Our Constitution does not promise every criminal will go to jail, it
promises due process of law. It is regrettable that the final day of judgment for those who killed Laude and kidnapped
Rivera has not yet arrived, but as Justice Oliver Wendell Holmes put it, “It is a less evil that some criminals should escape
*1125 than that the government should play an ignoble role.” Id. at 469, 48 S.Ct. 564 (Holmes, J., dissenting). It is for this
reason that the law places the duty to manage this difficult business with the utmost care upon those in the best position and
with the power to ensure that it does not go awry. Although the public has an interest in effective law enforcement, and
although we expect law enforcement officers and prosecutors to be tough on crime and criminals, we do not expect them to
be tough on the Constitution. As Justice Clark remarked in Mapp v. Ohio, 367 U.S. 643, 659, 81 S.Ct. 1684, 6 L.Ed.2d
1081 (1961), “Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its
disregard of the charter of its own existence.”
These duties imposed on police and prosecutors by the requirements of due process are hardly novel or burdensome.
Investigating and verifying the credibility of witnesses and the believability of testimony and evidence is a task which they
undertake every day in the regular discharge of their ordinary responsibilities, and we cannot conceive of any fair-minded
prosecutor chaffing under these mandates. All due process demands here is that a prosecutor guard against the corruption
of the system caused by fraud on the court by taking whatever action is reasonably appropriate given the circumstances of
each case. The Attorney General’s faulty decision and calculated course of non- action in this case deprived Bowie of the
fair process that was his due under our Constitution before he could be deprived of his liberty.
Case Law — Misconduct to Advise Witness Not to Speak with Counsel Unless
Prosecutor Present
 State v. Hofstetter, 75 Wn.App. 390, 402-3, 878 P.2d 474, review denied, 125 Wn.2d 1012, 889 P.2d
499 (Div. 2 1994) (prosecutor engaged in misconduct when he advised witnesses, who, as coconspirators,
entered into plea bargains, not to speak with defense counsel unless prosecutor was present, but misconduct
did not warrant reversal) —
Following the foregoing principles and authorities, we hold that it is improper for a prosecutor to instruct or advise a
witness not to speak with defense counsel except when a prosecutor is present. We further hold, a fortiori, that it is
improper for a prosecutor to plea bargain in such a way as to impose such instructions or advice on a witness. At least in
the absence of extraordinary circumstances, the fact the State is prosecuting a case against the witness does not alter the
State’s duty not to obstruct access to the witness in the case against the defendant.
Nothing herein is intended to imply that a prosecutor may not inform a witness of his or her right to choose whether to
give a pre-trial interview, or of his or her right to determine who shall be present at the interview; like several of the courts
quoted above, we recognize that giving information about the existence of a right is different from instructing or advising
on how it should be exercised. Nothing herein is intended to imply that a trial court may not reasonably control access to a
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witness under appropriate circumstances, assuming of course that each party has notice and an opportunity to be heard.
Nothing herein is intended to imply that only the prosecutor is bound by the principles we have discussed; we assume,
though we need not hold, that defense counsel is bound as well, except when the witness is his or her client.…
In the present cases, the prosecutor not only advised Chambliss and Leonard not to speak with defense counsel unless a
prosecutor was present, he also threatened that if they did, the State would withdraw its plea bargain and “bring some of
[its] focus” back onto them. Measured by the principles discussed above, this was prosecutorial misconduct.
Prejudice has not been shown in these cases. Satterfield’s counsel ultimately interviewed Leonard, and Hofstetter’s counsel
ultimately interviewed both Leonard and Chambliss. Although a prosecutor was present, there is no evidence that the
prosecutor’s presence precluded the Defendant from pursuing a specific avenue of inquiry, caused the Defendant to reveal
to the State information that was otherwise nondiscoverable, or precluded the Defendant from adequately preparing to
cross-examine the witness at trial. In short, nothing shows the prosecutor’s presence caused anyone in the interview to
behave differently than would otherwise have been the case, and thus reversal is not warranted.
Case Law — Misconduct to Ask Witness Questions About Out-Of-Court
Conversation With Prosecutor
 State v. Donley, 106 Wn.App. 1009, 2001 WL 472965, review denied, 144 Wn.2d 1021, 32 P.3d 284
(Div. 2 2001) [UNPUBLISHED OPINION] (Witness testified that defendant was with witness during the
night of the assault. Prosecutor questioned witness about conversation between the prosecutor and
witness they had the previous week. Witness either denied prosecutor’s statements, or said he could not
remember. Prosecutorial misconduct, but harmless.) —
We hold that the prosecutor’s failure to produce evidence of the facts stated in her cross- examination was error, but the
error was harmless beyond a reasonable doubt.
Donley next argues that the State’s cross-examination of Ben Robles was improper impeachment. He claims that the
prosecutor introduced substantive evidence in the guise of impeachment evidence and, in effect, ‘testified’ without ever
taking the stand. This, according to Donley, violated his right to a fair trial guaranteed by Washington Constitution, article
I, section 22, and the fourteenth amendment, as well as his right under the sixth amendment to confront the witnesses
against him.
This impeachment was improper. In State v. Babich, 68 Wn.App. 438, 441-42, 842 P.2d 1053 (1993), the prosecutor
attempted to impeach defense witnesses by referring to their prior inconsistent statements. But the State never introduced
extrinsic evidence of those statements. If the trial court does not require the cross-examiner to produce extrinsic evidence
of the inconsistent statement, ‘cross-examination could be abused by making insinuations about statements that the witness
did not in fact make, and the jury could be misled into thinking that the statements allegedly attributable to the witness
were evidence.’ Babich, 68 Wn.App. at 443-44 (quoting 5A K. Tegland, Wash. Prac., Evidence sec. 254(1), at 316 (3d
Ed.1989)). See also State v. Lopez, 95 Wn.App. 842, 855, 980 P.2d 224 (1999) (finding that ‘a prosecutor’s impeachment
of witnesses by referring to extrinsic evidence never introduced may rise to a violation of the right to confrontation’); State
v. Denton, 58 Wn.App. 251, 257, 792 P.2d 537 (1990) (affirming trial court’s refusal to allow defense counsel to impeach
witness with extrinsic evidence that could not be produced at trial). Furthermore, the defendant does not waive error by
failing to object to the cross-examination. ‘(I)n this situation, failure to object is not a waiver. It was not the questions
themselves that were improper; it was the failure to prove the statements in rebuttal that was error.’ Babich, 68 Wn.App. at
446. Because this error implicated the defendant’s right to confrontation, it was an error of constitutional magnitude.
Babich, 68 Wn.App. at 446.
Case Law — Misconduct to Prejudice Defense Witnesses
 State v. Kearney, 11 Wn.App. 394, 396-97, 523 P.2d 443, review denied, 84 Wn.2d 1011 (Div. 2 1974)
(prosecutor committed misconduct in advising several of defendant’s listed witnesses that defendant had
refused to submit to a lie detector test; Held: under the circumstances the charges had to be dismissed since
the overly zealous action of the prosecutor effectively denied defendant an opportunity to present his own
defense) —
It is vital, of course, for prosecuting officials to become aware of all the facts which bear upon the guilt or innocence of a
party charged with having committed a crime. Accordingly, those officials may probe the mind of a listed defense witness
to determine what bias or prejudice may lie therein. However, it is singularly inappropriate for such an official to implant
in the mind of a potential witness a suspicion that the accused really did commit the crime as evidenced by his refusal to
submit to a process which the official knew the accused could refuse with absolute impunity. See State v. Rowe, 77 Wn.2d
955, 468 P.2d 1000 (1970). That would be an attempt to implant a bias or prejudice where presumably none existed. We
believe the prosecution’s approach to all three of these potential witnesses was patently improper.…
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Indeed, there is no way to isolate the prejudice resulting from this prosecutorial activity. The defendant has been
effectively deprived of character witnesses in a proceeding in which credibility is a most significant factor. In addition, at
least a modest notoriety has undoubtedly occurred subsequent to his conviction and incarceration. There is little likelihood
that upon retrial, which we would ordinarily order, the defendant could obtain the effective assistance of character
witnesses. In our opinion, the totally unwarranted prosecutorial action vitiates the whole proceeding. State v. Cory, 62
Wn.2d 371, 382 P.2d 1019 (1963).
We do not, by this opinion, imply that the deputy prosecutor unlawfully tampered with a witness, but we do firmly
believe that his overly zealous action effectively denied this defendant an opportunity to present his only defense.
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Standard 3-3.2 Relations With Victims and Prospective Witnesses
(a) A prosecutor should not compensate a witness, other than an expert, for giving testimony, but it is not improper to
reimburse an ordinary witness for the reasonable expenses of attendance upon court, attendance for depositions pursuant to
statute or court rule, or attendance for pretrial interviews. Payments to a witness may be for transportation and loss of
income, provided there is no attempt to conceal the fact of reimbursement.
(b) A prosecutor should advise a witness who is to be interviewed of his or her rights against self-incrimination and the
right to counsel whenever the law so requires. It is also proper for a prosecutor to so advise a witness whenever the
prosecutor knows or has reason to believe that the witness may be the subject of a criminal prosecution. However, a
prosecutor should not so advise a witness for the purpose of influencing the witness in favor of or against testifying.
(c) The prosecutor should readily provide victims and witnesses who request it information about the status of cases in
which they are interested.
(d) the prosecutor should seek to insure that victims and witnesses who may need protections against intimidation are
advised of and afforded protections where feasible.
(e) The prosecutor should insure that victims and witnesses are given notice as soon as practicable of scheduling changes
which will affect the victims' or witnesses' required attendance at judicial proceedings.
(f) The prosecutor should not require victims and witnesses to attend judicial proceedings unless their testimony is essential
to the prosecution or is required by law. When their attendance is required, the prosecutor should seek to reduce to a
minimum the time they must spend at the proceedings.
(g) The prosecutor should seek to insure that victims of serious crimes or their representatives are given timely notice of:
(i) judicial proceedings relating to the victims' case; (ii) disposition of the case, including plea bargains, trial and
sentencing; and (iii) any decision or action in the case which results in the accused's provisional or final release from
custody.
(h) Where practical, the prosecutor should seek to insure that victims of serious crimes or their representatives are given an
opportunity to consult with and to provide information to the prosecutor prior to the decision whether or not to prosecute,
to pursue a disposition by plea, or to dismiss the charges.
Excerpt from Commentary to ABA Standard
“Compensation of Witnesses. Because of the risk of encouraging perjury, or appearing to do so, witnesses may not be
compensated by the parties for their testimony, although they may be paid ordinary witness fees …”
“Self-Incrimination of Witnesses. It is the ethical obligation of the prosecutor to ‘make reasonable efforts to assure that the
accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable
opportunity to obtain counsel.’ Similarly, the prosecutor has a professional obligation to advise witnesses of their right to
counsel and other applicable constitutional rights, such as the right against self-incrimination when prevailing
constitutional, statutory, or decisional law in the prosecutor’s jurisdiction so requires … Nonetheless, the prosecutor may
advise witnesses of the existence of such constitutional rights when the prosecutor believes it is otherwise appropriate to do
so or when the prosecutor knows or believes that the witnesses are or subsequently may be the subject of a criminal
investigation or prosecution. It is, however, inappropriate and unprofessional for a prosecutor who is not required by law to
provide such advice to witnesses to do so simply for the purpose of influencing them for or against testifying in a criminal
proceeding, e.g. by unduly scaring them into believing that if they testify they may incriminate themselves and may, as a
result, face subsequent prosecution.”
“Victim and Witness Requests for Information … Prosecutors should nonetheless take care to address victims’ and
witnesses’ concerns where feasible in order to forestall such unfortunate and counterproductive alienation from the
interests of the criminal justice system. Advance explanations to victims and witnesses of what may be expected of them
throughout the process and why the system requires what it does can, for example, reduce victim and witness resentment
substantially and strengthen cooperation with the prosecution …”
“Protection Against Intimidation. Intimidation of victims and witnesses is a widespread and pervasive problem in the
criminal justice system with serious implications for both the individual victim or witness and the system itself …
Mechanisms that might profitably be used in some jurisdictions to deal with this problem include: extra police patrols,
temporary or permanent victim or witness relocation; temporary restraining orders requiring the accused to maintain a
specific geographical distance from the victim or witness; police ‘hot lines’ for intimidation calls, transportation to and
from work or the court; phone disconnect or monitoring; mail stop and forward services; and phone traces …”
“The prosecutor should not, however, create or encourage false expectations. They are unfair—and possibly dangerous—to
the victim of witness, and can be detrimental to the successful prosecution of the case itself. Prosecutors should candidly
inform victims and witnesses who appear to need protection against intimidation when public resources are not available
and, where appropriate, suggest alternative, lawful means of protection …”
“Victim and Witness Scheduling and Attendance. It is typically impractical, if not impossible, to schedule criminal cases
for the convenience of all concerned parties … Nonetheless, even appreciating these systemic realities, there is no
justification for the fact that victims and witnesses are often the last persons to learn about scheduling and scheduling
changes, sometimes learning about the changes only after they have already rearranged their lives and appeared at
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scheduled proceedings. To ameliorate this problem (and its counterproductive effect upon victim and witness attitudes and
desire to cooperate), prosecutors should strive to make reasonable efforts to alert victims and witnesses of scheduling
changes as soon as it is practicable …”
“Notice to Victims … [T]he fact that a victim’s appearance may not be required at a particular proceeding does not
necessarily diminish that person’s interest in knowing what and when proceedings are about to take place … Accordingly,
where it is feasible, every victim of a serious crime should be provided timely notice of all significant judicial proceedings
relating to his or her case, final disposition of the case, and decisions or actions that result in the accused person’s release
from custody.”
“Consultation with Victims. The prosecutor should be sure that he or she has all available information regarding the true
nature and consequences of an alleged serious crime prior to deciding not to prosecute, to dismiss charges, or to offer an
accused a plea agreement. As part of this information, where it is practical to do so, the prosecutor should give victims an
opportunity to consult and to provide relevant information prior to the prosecutor’s taking such final action. Since,
however, the prosecutor’s client is not the victim but the people who live in the prosecutor’s jurisdiction, the prosecutor
obviously retains the discretionary authority to make such decisions without regard to the victim’s—or any other
person’s— views on the matter.”
Witness Preparation vs. Witness Coaching (aka Tampering)
The standard wisdom about the ethics of witness coaching can be briefly stated something like
this:
First, a lawyer may discuss the case with the witnesses before they testify. A lawyer in our
common law adversary system has an ethical and legal duty to investigate the facts of the case,
and the investigation typically requires the lawyer to talk with the witnesses—the people who
know what happened on the occasion in question. Moreover, the adversary system benefits by
allowing lawyers to prepare witnesses so that they can deliver their testimony efficiently,
persuasively, comfortably, and in conformity with the rules of evidence.
Second, when a lawyer discusses the cases with a witness, the lawyer must not try to bend the
witness’s story or put words in the witness’s mouth. As an old New York disciplinary case puts it:
“[The lawyer’s] duty is to extract the facts from the witness, not to pour them into him; to learn
what the witness does know, not to teach him what he ought to know.”
Third, a lawyer can be disciplined by the bar for counseling or assisting a witness to testify
falsely or for knowingly offering testimony that the lawyer knows is false.
R. Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1 (1995) (footnotes omitted).
Professor Wydick suggests that the advocate who truly wants to avoid witness coaching should ask
these questions:
(1)
(2)
(3)
(4)
Will my question or statement overtly tell this witness that I want him to testify falsely?
Will my question or statement covertly send a message I want him to testify falsely?
Is there a legitimate reason for my next question or statement?
Am I asking the questions or making the statement in a manner that is least likely to harm
the quality of the witness testimony?
Professor Wydick suggests several legitimate reasons for an advocate’s question or statements. The
complete list is a helpful reminder of what a prosecutor should be seeking to do in witness preperation:

to investigate the facts, that is, to find out about the events in question;

to find out what the witness perceived and can testify to from personal knowledge;

to determine how accurately the witness perceived the events and what conditions may have
hindered or assisted his perception;

to test the witness’s memory about what he perceived;

to discover how certain the witness is about what he remembers;

to determine adverse or favorable conditions that may have affected the witness’s memory;
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
to refresh the witness’s memory of things he once remembered but has since forgotten;

to find out whether exposure to relevant documents, other items of tangible or testimonial
evidence, or some non-evidentiary stimulus will help refresh the witness’s memory;

to test the witness’s ability to communicate his recollections accurately;

to find out what the witness means by words or expressions he used in his story;

to test the witness’s truthfulness;

to warn the witness that his credibility may be attacked and that some kinds of acts in his past
may be exposed in open court;

to ascertain whether the witness has a good or bad character for truthfulness;

to find out whether the witness has previously been convicted of a crime that could be used to
impeach his credibility;

to uncover instances of non-criminal conduct that could be used to impeach the witness’s
credibility;

to discover whether the witness’s story has been influenced properly or improperly, by the
statement or conduct of some other person;

to find out whether the witness has previously made statements that are either consistent or
inconsistent with his present story;

to test the witness’s demeanor in response to various stimuli he may encounter when he
testifies (for example, the witness’s likely response to harsh questioning by a crossexaminer);

to explain the role of a witness, the obligations imposed by the oath, and the formality of court
proceedings;

to explain to the witness why he should listen to questions carefully, not guess, not volunteer
information that has not been asked for, be alert to objections, and the like;

to advise the witness about the appropriate attire and physical appearance in court, distracting
mannerisms, inappropriate language and demeanor, and the effective delivery of testimony.
One extremely important item not included on Professor Wydick’s list that is an obligation of
Washington prosecutors is:

to advise the witness of pre-trial judicial rulings that limit what the witness may testify about.
Case Law — Inducing Co-Defendant (or Any Witness) Not to Testify for Defendant,
aka Bribery
 In re Disciplinary Proceedings Against Bonet, 144 Wn.2d 502, 29 P.3d 1242 (2001) (Deputy
prosecuting attorney charged with misconduct by WSBA for offering to dismiss criminal charges against
potential witness for criminal defendant if witness would absent himself from defendant’s trial by invoking
witness’s right against self-incrimination, even though witness had pre-existing subjective intent to invoke
his right against self incrimination. Remanded with directions to impose appropriate discipline.) —
We have no difficulty reaching a conclusion that a public or private attorney may not offer an inducement to a witness in
order to influence that person to not testify at a trial. An attorney who does that, in our view, violates RPC 3.4(b), [FN7]
RPC 8.4(b), and RPC 8.4(d), [FN8] regardless of whether the offer or inducement influenced the witness's decision to
testify or not testify. Consistent with that notion, we hold that the conclusions of the hearing officer and Board to the effect
that Yoder had a preexisting intent to not testify for McCarty is simply irrelevant in determining if Bonet's offer constituted
unethical conduct. The gravamen of the complaint alleging misconduct on the part of Bonet is that he offered an
inducement to Yoder to influence him to not testify for McCarty. If that is shown, as it was, that act, without more,
constitutes a violation of **1249 the rules set forth in Count I. The fact that the offer did not, in fact, influence Yoder's
testimony is irrelevant. In our view, it would contradict the interest of the public to absolve Bonet of an act of professional
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misconduct merely because Yoder had a *515 prior subjective intent to not testify. In reaching this conclusion, we take
particular note of the fact that in this state a prosecuting attorney possesses a significant power--the power to
charge or not charge a person with a crime. A prosecutor's act of offering to dismiss or withhold a charge against a
person in order to influence that person's decision about testifying for another person charged with a crime is
highly unethical and as deserving of opprobrium as would a public or private attorney's effort to bribe a witness
with money to influence that person's testimony. [FN9] [emphasis added]
SRA Charging and Plea Disposition Standards — RCW 9.94A.411(2)(b) — Victims
Discussions with the victim(s) or victims’ representatives regarding the selection or disposition of charges may occur
before the filing of charges. The discussions may be considered by the prosecutor in charging and disposition decisions,
and should be considered before reaching any agreement with the defendant regarding these decisions.
Kitsap Prosecutor’s Office — Sample Memorandum — Prosecutor’s Duty to Warn
Witnesses of Their Rights
The following is from a memorandum written in response to a defense motion to disqualify the Kitsap
Prosecutor’s Office or in the alternative to dismiss due to a witness refusing to testify for the defense and
asserting his right against self-incrimination after an interview with a prosecutor wherein the prosecutor
warned the witness of potential criminal charges based on the witness’s statements —
A Prosecutor Has a Duty to Warn a Witness That He or She May Be Subject to
Criminal Prosecution Based on the Witness’s Probable Testimony
The Defendant is either seeking to dismiss this case or remove the entire Kitsap County Prosecutor’s Office based upon
the assertion that the deputy prosecuting attorney acted improperly during contact with a potential defense witness. The
Defendant’s underlying rationale for this motion is the assertion that a deputy prosecuting attorney commits misconduct by
informing a defense witness that he or she may be charged with a crime based upon the witness’ anticipated testimony that
he or she lied to a police officer at the time of the incident or in fact committed the crime, and the defense witness in
response to this information chooses to assert his or her constitutional right against self-incrimination.
This very issue arose in State v. Carlisle, 73 Wn.App. 678, 871 P.2d 174 (Div. 1 1994).
Carlisle claims the prosecutor threatened Nathan Wiley with prosecution if he testified for the defense. He
argues that the prosecutor’s threats resulted in Wiley’s decision not to testify, denying him compulsory and due
process.
Carlisle, 73 Wn.App. at 679.
Division 1 began its analysis by citing State v. Burri, 87 Wn.2d 175, 550 P.2d 507 (1976) (prosecutor instructed alibi
witnesses in special inquiry not to discuss their testimony with defense counsel; the Supreme Court affirmed the trial
court’s dismissal of the case, noting a defendant’s constitutional right to make a full investigation of the facts and
applicable law), concerning a defendant’s right to compulsory process.
Carlisle, supra, continues that if a defense witness is threatened, and those threats effectively keep that witness off the
stand, the defendant is deprived of due process of law, citing to federal case law. This did not end the inquiry in Carlisle,
though, nor does it here.
However, a prosecutor should advise a witness of the right against self-incrimination when the prosecutor
knows or has reason to believe that the witness may be the subject of a criminal prosecution. 1 American Bar
Ass’n, Standards for Criminal Justice, Std. 3-3.2(b) (2d ed. 1980). “Where the prosecutor simply provides the
witness with a truthful warning, no constitutional violation occurs.” Thus, a prosecutor’s warning to counsel
advising of the client’s potential liabilities if the client’s testimony provides incriminating evidence is not
improper.
Carlisle, 73 Wn.App. at 679-80. (Citation omitted.)
The deputy prosecutor herein had a duty under Carlisle to warn the witness of his or her right against self-incrimination.
He provided a truthful warning to the witness of the consequences of the anticipated testimony.
The Defendant in essence argues that the deputy prosecutor should have said nothing to the witness, allowed the witness
to take the stand and incriminate himself or herself, and then charge the witness with a crime based upon the witness’
testimony. Such a choice by the deputy prosecutor would have been improper under Carlisle, and would have allowed the
witness to quite properly complain in his or her subsequent criminal prosecution that he or she should have been warned by
the deputy prosecutor that the witness may be incriminating himself or herself in the trial in this case. Carlisle has
eliminated this Hobson’s Choice2 for deputy prosecutors. The deputy prosecutor herein acted properly.
2
Warn the witness and face a constitutional challenge by the defendant; fail to warn the witness and face a constitutional challenge by
the witness in subsequent prosecution of the witness.
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If the Deputy Prosecutor Herein Acted Improperly, the Remedy is Disqualification
of That Deputy, Not the Entire Office.
In State v. Stenger, 111 Wn.2d 516, 760 P.2d 357 (1988), the Supreme Court held in a death penalty case that where the
prosecutor, as opposed to a deputy prosecutor, had previously represented the defendant in other criminal cases, the proper
remedy was disqualification of the entire office and appointment of a special prosecutor where the State failed to show that
it had taken steps to create a “Chinese Wall” between the prosecutor and those in charge of the death penalty case.
Where the prosecuting attorney (as distinguished from a deputy prosecuting attorney) has previously
personally represented the accused in the same case or in a matter so closely interwoven therewith as to be in
effect a part thereof, the entire office of which the prosecuting attorney is administrative head should ordinarily
also be disqualified from prosecuting the case and a special deputy prosecuting attorney appointed. This is not
to say, however, that anytime a prosecuting attorney is disqualified in a case for any reason that the entire
prosecuting attorney’s office is also disqualified. Where the previous case is not the same case (or one closely
interwoven therewith) that is being prosecuted, and where, for some other ethical reason the prosecuting
attorney may be totally disqualified from the case, if that prosecuting attorney separates himself or herself from
all connection with the case and delegates full authority and control over the case to a deputy prosecuting
attorney, we perceive no persuasive reason why such a complete delegation of authority and control and
screening should not be honored if scrupulously maintained.
There is a difference between the relationship of a lawyer in a private law firm and a lawyer in a public
law office such as prosecuting attorney, public defender, or attorney general; accordingly, where a deputy
prosecuting attorney is for any reason disqualified from a case, and is thereafter effectively screened and
separated from any participation or discussion of matters concerning which the deputy prosecuting attorney is
disqualified, then the disqualification of the entire prosecuting attorney’s office is neither necessary nor wise.
Under the facts of the case before us, although the prosecuting attorney did eventually delegate handling
of the case to a deputy prosecuting attorney in his office, he did not effectively screen and separate himself from
the case but instead maintained quite close contact with it. We need go no further in this capital case in order to
conclude that it is appropriate that a special prosecuting attorney be appointed to handle and control the case.
In fairness to the Clark County Prosecuting Attorney, we expressly observe that there is absolutely no
question but that he acted in good faith throughout and had only the best interest and motivation for his actions.
Under the law relating to professional conflicts of interest, however, that is not material to disqualification on
the ground stated.
Stenger, 111 Wn.2d at 522-23. (Footnotes omitted.) (Emphasis added.) See also State v. Ladenburg, 67 Wn.App. 749, 840
P.2d 228 (Div. 2 1992) (Pierce County Prosecutor’s Office not disqualified from prosecuting nephew of the Prosecutor
where the Prosecutor did not have direct involvement in the case, which did not involve the death penalty).
If a deputy prosecutor is found to have acted improperly, the remedy is to remove him or her from the prosecution of the
Defendant’s case, with another deputy prosecutor assigned to the case with a “Chinese wall” erected between the removed
deputy prosecutor and the new deputy prosecutor assigned to the case. The Defendant’s motion to disqualify the Kitsap
County Prosecutor’s Office and/or to dismiss the case must be denied.
Prosecutor’s Duty to Warn Witnesses of Their Rights — Jahns’ Memo in Prosecutor
Bar Discipline Matter
The following is from a memorandum written in response to a WSBA disciplinary proceeding
concerning allegations of misconduct due to a prosecutor advising a possible witness about the right against
self incrimination. The complaint against the prosecutor was dismissed. —
Thank you for your inquiry concerning a prosecutor’s role when the prosecutor has a belief that a
witness’s statements or testimony may incriminate that witness. It is my opinion that a prosecutor should
advise a witness of the right to counsel and the right against self-incrimination when the prosecutor knows
or has reason to believe that the witness may be the subject of possible future criminal prosecution based
upon statements or testimony the witness may provide.
My Background
I received my undergraduate degree from the University of Puget Sound in 1978 and my law degree
from the University of Puget Sound School of Law in 1981.
I was a partner in the law firm of Kindig & Jahns in Tacoma, Washington from 1982 to 1986. My
primary area of practice was criminal defense, including criminal appeals. I was a contract lawyer with the
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Pierce County Department of Assigned Counsel, and received assignments to represent indigent criminal
defendants when needed by DAC. I also handled many indigent felony defense appeals, most of which
arose from juvenile cases out of Remann Hall in Tacoma.
In 1987, I became an associate in the Port Orchard, Washington law firm of Ronald D. Ness &
Associates. Kitsap County did not (and does not) have a public criminal defense agency, but instead had
contracts with various Kitsap County law firms to provide public criminal defense services for indigent
defendants. Mr. Ness’s firm had contracts to represent adults charged with felonies and misdemeanors. My
main responsibility was to staff the misdemeanor part of the contract by representing indigent criminal
defendants charged with crimes in Kitsap County District Court. I also handled an extensive criminal
defense appellate practice based upon appointments by Kitsap County Superior and District Court judges.
On January 1, 1995, I joined the Kitsap County Prosecuting Attorney’s Office, and I am currently the
supervising attorney of the office’s District and Municipal Court Division. Kitsap County has contracts
with its four cities (Bainbridge Island, Bremerton, Port Orchard, and Poulsbo) to provide criminal
prosecution services for matters filed in those city’s municipal courts. I supervise the six deputy
prosecutors assigned to my division to cover those responsibilities.
Additionally, just about every new deputy prosecutor hired to work in the criminal prosecution side of
the office is initially assigned to my division. It my responsibility to train those newly hired deputy
prosecutors in various topics, including prosecutorial ethics and professionalism.
I have been fortunate to be frequently asked to be a presenter at seminars sponsored by the Washington
Association of Prosecuting Attorneys. I have lectured to hundreds of Washington State prosecutors on
topics including prosecutorial ethics, case law updates, plea negotiations, and Freemen.
I have been invited to speak on the topic of prosecutorial ethics at the National District Attorneys
Association’s Summer Conference in Spokane, Washington in June 2000, at the Idaho Prosecuting
Attorneys Association’s Winter Conference in Boise, Idaho in February 2002, at the Iowa County
Attorneys Fall Training Conference in Des Moines, Iowa in November 2002, and at the Seattle University
School of Law in 2002 and 2003.
My Washington prosecutorial ethics manual, THE QUEST FOR JUSTICE, has been used during these
trainings for almost ten years. The 2004 version of this training manual is over 300 pages in length, and the
Powerpoint presentation includes over 350 slides.
I am the recipient of the 1995 Professionalism Award given by the Kitsap County Bar Association “in
recognition of sustained excellence in the practice of law.” In September 2002, the publication Washington
Law & Politics named 934 “Super Lawyers” as chosen by the legal community. I was one of only eight
prosecutors selected as a “Super Lawyer.” I was again named a “Super Lawyer” in 2003 and 2004.
On September 16, 2004, the Washington State Bar Association Board of Governors will be presenting
Robert Boruchowitz and me with the 2004 Professionalism Award. The WSBA Professionalism Award is
given to a member of the WSBA who exemplifies the spirit of professionalism in the practice of law.
“Professionalism” is defined as the pursuit of a learned profession in the spirit of service to the public and
in the sharing of values with other members of the profession.
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My Understanding Of The Facts
It is my understanding that the facts in the present situation are as follows–
[Prosecutor] was an assistant city attorney practicing in the [a] Municipal Court. A defendant was
charged with DUI/Physical Control. The defendant had driven into a pole. When approached by law
enforcement officers, she was carrying a cup which contained alcohol. Her apparent defense at trial was
going to be that she was sober or at least not under the influence when she hit the pole. It was her position
that a helpful passerby had stopped to assist her and that he had given her the liquor. The defense planned
to call the passerby who was apparently going to testify consistent with the defense theory.
[Prosecutor] talked with the witness on the day of trial and learned that he was going to say that he had
stopped at the accident and had left some “wine coolers” with the defendant. [Prosecutor] was aware that
the witness had a Stipulated Order of Continuance (hereafter “SOC”) involving a domestic violence matter
also in the [ ] Municipal Court. An SOC is a pending criminal matter subject to a prosecution motion to
revoke the agreement upon an allegation of a defendant’s non-compliance with the agreement.
[Prosecutor]’s memory has been that she thought there was an alcohol restriction in the SOC but she now
believes this may be erroneous but does not know for sure. What she does recall with certainty is that she
had concerns that with a pending SOC proceeding in her own court wherein the SOC defendant could be
subjecting himself to revocation of the agreement. Her best belief at this time is that this concern stemmed
from one or more of the following– (1) There may have been an alcohol restriction in the SOC or at least
she may have thought there was; or (2) That the SOC defendant might perjure himself (since she did not
believe the story and it was not consistent with what the officers said had happened); or (3) The SOC
defendant could be open to being charged with violating some other law such as rendering criminal
assistance or aiding and abetting the crime of physical control; or (4) That somehow his testimony might
be used against him in some manner in connection with the SOC. Since [Prosecutor] did not control the
SOC witness’s testimony and since the defense had no reason to protect the witness against selfincrimination, the unrepresented witness might completely unintentionally say something that could lead to
his SOC being subject to revocation.
The defense initially called another witness whom [Prosecutor] apparently thoroughly discredited. The
witness with the SOC remained at the courthouse and was called to testify. However, he did not actually
testify because the defendant chose to plead guilty after the case reconvened from a recess.
My opinion that [Prosecutor] had a duty to advise the witness of possible self-incrimination exposure
is not dependent upon whether or not there was an alcohol restriction on the SOC. The mere existence of
the SOC, particularly in the very court in which the witness was going to testify, should have led a
reasonable and prudent prosecutor to advise the witness of the self-incrimination possibility and the
availability of appointed counsel if the witness could not afford to retain an independent attorney to review
the matter with the witness. [Prosecutor] discussed her concerns with the witness and, at a minimum,
advised him that she was going to ask the court to appoint independent counsel for him. I am advised that
there is apparently some dispute over the exact words, tone and tenor of the conversation. I do not presume
to resolve that issue. Any intentional effort by a prosecutor to intimidate and keep a witness from testifying
is not defensible. If on the other hand [Prosecutor] had good faith concerns about possible witness selfincrimination then she had the duty to tell the witness about those concerns and to suggest that the witness
seek independent legal advice.
A witness and the underlying defendant might not appreciate such a conversation coming from the
prosecution and could interpret the prosecutor’s actions as some sort of attempt to interfere with the
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witness’s testimony. Nonetheless, the prosecutor has the duty to advise the witness of the possible problem
rather than simply let the witness walk into a potential criminal trap.
With this understanding of the facts, I now turn to my analysis of a prosecutor’s duties to a witness
whom the prosecutor knows or has reason to believe may intentionally or inadvertently provide statements
or testimony resulting in self incrimination.
My Analysis Of A Prosecutor’s Duty To Warn Witnesses
It is my opinion that the starting point for any discussion of prosecutorial ethics must be with the ABA
Standards for Criminal Justice. The ABA Standards have been cited with approval by over 100 United
States Supreme Court cases, over 1,100 federal cases, over 4,000 state cases, and over 100 Washington
State cases. Given the number of times the ABA Standards for Criminal Justice have been cited by the
judiciary, one must in my opinion consider the Standards as part of any analysis of an attorney’s proper role
concerning criminal justice issues.
Chapter 3 of the ABA Standards for Criminal Justice discusses the “Prosecution Function.” Standard
3-3.2 details a prosecutor’s obligation concerning victims and prospective witnesses. Standard 3-3.2(b)
requires prosecutors to advise witnesses of their right against self incrimination and the right to counsel
when required by law, and provides that it is proper for a prosecutor to advise a witness that the witness
may be the subject of criminal prosecution. The Standard says–
Standard 3-3.2 Relations With Victims and Prospective Witnesses
(b) A prosecutor should advise a witness who is to be interviewed of his or her rights against self-incrimination and the
right to counsel whenever the law so requires. It is also proper for a prosecutor to so advise a witness whenever the
prosecutor knows or has reason to believe that the witness may be the subject of a criminal prosecution. However, a
prosecutor should not so advise a witness for the purpose of influencing the witness in favor of or against testifying.
Each ABA Standard also includes a Commentary which includes an additional discussion on topics
raised in the Standards. A copy of Standard 3-3.2 and its relevant Commentary are attached. The
Commentary discussing Self-Incrimination of Witnesses says that a prosecutor has the “professional
obligation to advise witnesses of their right to counsel and other applicable constitutional rights, such as the
right against self-incrimination” when prevailing law so requires. Even when prevailing law does not
require such an advisement, the Commentary provides that a prosecutor–
may advise witnesses of the existence of such constitutional rights when the prosecutor believes it is otherwise appropriate
to do so or when the prosecutor knows or believes that the witnesses are or subsequently may be the subject of a criminal
investigation or prosecution.
The Commentary on this topic concludes that when the law does not require witnesses to be so advised
of their constitutional rights, it is inappropriate and unprofessional for a prosecutor to give such advice
“simply for the purpose of influencing them for or against testifying in a criminal proceeding, e.g. by
unduly scaring them into believing that if they testify they may incriminate themselves and may, as a result,
face subsequent prosecution.”
Washington case law has addressed this very topic in State v. Carlisle, 73 Wn.App. 678, 871 P.2d 174
(Div. 1 1994). Carlisle asserted on appeal that prosecutorial error occurred because a defense witness
refused to testify after the prosecutor advised the witness through counsel that if the witness testified and
incriminated himself, the prosecutor would relay that information to her office for appropriate action.
Division 1 began its analysis by noting that a defendant is deprived of due process when a defense
witness is threatened and those threats effectively keep that witness off the stand. Citing the ABA
Standards, the court next noted a prosecutor’s duty in this regard was to advise a witness of the right
against self-incrimination when the prosecutor believes the witness may be the subject of criminal
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prosecution.
However, a prosecutor should advise a witness of the right against self-incrimination when the prosecutor knows or has
reason to believe that the witness may be the subject of a criminal prosecution. “Where the prosecutor simply provides the
witness with a truthful warning, no constitutional violation occurs.” Thus, a prosecutor’s warning to counsel advising of the
client’s potential liabilities if the client’s testimony provides incriminating evidence is not improper.
After discussing the reasons why the prosecutor properly believed that the witness would be confessing
to being an accomplice, the court held that “it was proper for the prosecutor to discuss [the witness’s]
potential liability with his counsel” and concluded as follows–
The prosecutor carefully limited her statements to accurately advising counsel of the charges [the witness] might face, and
warning that if [the witness] incriminated himself on the stand, she would relay his statements to her office for appropriate
action. She also took pains to point out that she would not be involved in any charging decision. Here, the prosecutor
simply provided a truthful warning. This was not misconduct.
It is my opinion that Carlisle’s holding satisfies the “whenever the law so requires” language of
Standard 3-3.2(b) such that a Washington prosecutor has a duty to advise a witness of his or her right to
counsel and right against self-incrimination whenever the prosecutor knows or has reason to know that the
witness’s statements or testimony may subject the witness to criminal prosecutor. Carlisle’s approval of the
method used by the prosecutor in that case to communicate this warning provides a best practices approach
and guide to prosecutors.
This entire situation is most difficult when a prosecutor believes that a defense witness’s statements or
testimony may result in possible criminal prosecution of the witness. If a prosecutor speaks up and warns
the witness, the defense in the underlying case will surely claim a due process violation if the witness
chooses to thereafter assert his or her right against self-incrimination by arguing that the prosecutor’s
motives were solely to keep the self-incrimination witness off the stand. If the prosecutor says nothing and
the defense witness in essence confesses to a crime, the self-incriminating witness’s defense will surely
assert during the subsequent prosecution of the witness that the prosecutor failed in its duty to protect the
witness from self-incrimination, citing Carlisle’s analysis to seek suppression of the statements or
testimony.
This Hobson’s Choice must be resolved, in my opinion, by a prosecutor erring on the side ensuring
that a witness be given legal advice (by appointed counsel if necessary) prior to being put in jeopardy of
subsequent criminal prosecution. If the witness after obtaining this advice chooses to not testify, so be it. A
defendant does not have a constitutional right to compel another witness to incriminate himself or herself.
If the witness chooses to testify anyway after being advised by counsel, the witness’s choice to waive his or
her self-incrimination rights will have been knowingly and voluntarily made. If the witness is subsequently
charged, so be it. The defendant in the underlying case will have no issue, and the witness will have been
forewarned about the possibility of criminal charges.
Please feel free to contact me if you have any questions or comments. My direct phone line is 360-3374982, and my e-mail address is <JJahns@co.kitsap.wa.us>.
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Const. art. 1, § 35 — Victims of Crimes — Rights
Effective law enforcement depends on cooperation from victims of crime. To ensure victims a meaningful role in the
criminal justice system and to accord them due dignity and respect, victims of crime are hereby granted the following basic
and fundamental rights.
Upon notifying the prosecuting attorney, a victim of a crime charged as a felony shall have the right to be informed of
and, subject to the discretion of the individual presiding over the trial or court proceedings, attend trial and all other court
proceedings the defendant has the right to attend, and to make a statement at sentencing and at any proceeding where the
defendant’s release is considered, subject to the same rules of procedure which govern the defendant’s rights. In the event
the victim is deceased, incompetent, a minor, or otherwise unavailable, the prosecuting attorney may identify a
representative to appear to exercise the victim’s rights. This provision shall not constitute a basis for error in favor of a
defendant in a criminal proceeding nor a basis for providing a victim or the victim’s representative with court appointed
counsel.
RCW 7.69.030 — Rights of victims, survivors, and witnesses
There shall be a reasonable effort made to ensure that victims, survivors of victims, and witnesses of crimes have the
following rights:
(1) With respect to victims of violent or sex crimes, to receive, at the time of reporting the crime to law enforcement
officials, a written statement of the rights of crime victims as provided in this chapter. The written statement shall include
the name, address, and telephone number of a county or local crime victim/witness program, if such a crime victim/witness
program exists in the county;
(2) To be informed by local law enforcement agencies or the prosecuting attorney of the final disposition of the case in
which the victim, survivor, or witness is involved;
(3) To be notified by the party who issued the subpoena that a court proceeding to which they have been subpoenaed will
not occur as scheduled, in order to save the person an unnecessary trip to court;
(4) To receive protection from harm and threats of harm arising out of cooperation with law enforcement and prosecution
efforts, and to be provided with information as to the level of protection available;
(5)
To be informed of the procedure to be followed to apply for and receive any witness fees to which they are entitled;
(6) To be provided, whenever practical, a secure waiting area during court proceedings that does not require them to be
in close proximity to defendants and families or friends of defendants;
(7) To have any stolen or other personal property expeditiously returned by law enforcement agencies or the superior
court when no longer needed as evidence. When feasible, all such property, except weapons, currency, contraband,
property subject to evidentiary analysis, and property of which ownership is disputed, shall be photographed and returned
to the owner within ten days of being taken;
(8) To be provided with appropriate employer intercession services to ensure that employers of victims, survivors of
victims, and witnesses of crime will cooperate with the criminal justice process in order to minimize an employee’s loss of
pay and other benefits resulting from court appearance;
(9) To access to immediate medical assistance and not to be detained for an unreasonable length of time by a law
enforcement agency before having such assistance administered. However, an employee of the law enforcement agency
may, if necessary, accompany the person to a medical facility to question the person about the criminal incident if the
questioning does not hinder the administration of medical assistance;
(10) With respect to victims of violent and sex crimes, to have a crime victim advocate from a crime victim/witness
program present at any prosecutorial or defense interviews with the victim. This subsection applies if practical and if the
presence of the crime victim advocate does not cause any unnecessary delay in the investigation or prosecution of the case.
The role of the crime victim advocate is to provide emotional support to the crime victim;
(11) With respect to victims and survivors of victims, to be physically present in court during trial, or if subpoenaed to
testify, to be scheduled as early as practical in the proceedings in order to be physically present during trial after testifying
and not to be excluded solely because they have testified;
(12) With respect to victims and survivors of victims, to be informed by the prosecuting attorney of the date, time, and
place of the trial and of the sentencing hearing for felony convictions upon request by a victim or survivor;
(13) To submit a victim impact statement or report to the court, with the assistance of the prosecuting attorney if
requested, which shall be included in all presentence reports and permanently included in the files and records
accompanying the offender committed to the custody of a state agency or institution;
(14) With respect to victims and survivors of victims, to present a statement personally or by representation, at the
sentencing hearing for felony convictions; and
(15) With respect to victims and survivors of victims, to entry of an order of restitution by the court in all felony cases,
even when the offender is sentenced to confinement, unless extraordinary circumstances exist which make restitution
inappropriate in the court’s judgment.
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ER 615. Exclusion of Witnesses
At the request of a party the court may order witnesses excluded so that they cannot hear the testimony of other
witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a
natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its
attorney, or (3) a person whose presence is shown by a party to be reasonably necessary to the presentation of a party’s
case.
RCW 7.69A.030 — Rights of child victims and witnesses
In addition to the rights of victims and witnesses provided for in RCW 7.69.030, there shall be every reasonable effort
made by law enforcement agencies, prosecutors, and judges to assure that child victims and witnesses are afforded the
rights enumerated in this section. The enumeration of rights shall not be construed to create substantive rights and duties,
and the application of an enumerated right in an individual case is subject to the discretion of the law enforcement agency,
prosecutor, or judge. Child victims and witnesses have the following rights:
(1) To have explained in language easily understood by the child, all legal proceedings and/or police investigations in
which the child may be involved.
(2) With respect to child victims of sex or violent crimes or child abuse, to have a crime victim advocate from a crime
victim/witness program present at any prosecutorial or defense interviews with the child victim. This subsection applies if
practical and if the presence of the crime victim advocate does not cause any unnecessary delay in the investigation or
prosecution of the case. The role of the crime victim advocate is to provide emotional support to the child victim and to
promote the child’s feelings of security and safety.
(3) To be provided, whenever possible, a secure waiting area during court proceedings and to have an advocate or
support person remain with the child prior to and during any court proceedings.
(4) To not have the names, addresses, nor photographs of the living child victim or witness disclosed by any law
enforcement agency, prosecutor’s office, or state agency without the permission of the child victim, child witness, parents,
or legal guardians to anyone except another law enforcement agency, prosecutor, defense counsel, or private or
governmental agency that provides services to the child victim or witness.
(5) To allow an advocate to make recommendations to the prosecuting attorney about the ability of the child to cooperate
with prosecution and the potential effect of the proceedings on the child.
(6) To allow an advocate to provide information to the court concerning the child’s ability to understand the nature of the
proceedings.
(7) To be provided information or appropriate referrals to social service agencies to assist the child and/or the child’s
family with the emotional impact of the crime, the subsequent investigation, and judicial proceedings in which the child is
involved.
(8)
To allow an advocate to be present in court while the child testifies in order to provide emotional support to the child.
(9) To provide information to the court as to the need for the presence of other supportive persons at the court
proceedings while the child testifies in order to promote the child’s feelings of security and safety.
(10) To allow law enforcement agencies the opportunity to enlist the assistance of other professional personnel such as
child protection services, victim advocates or prosecutorial staff trained in the interviewing of the child victim.
(11) With respect to child victims of violent or sex crimes or child abuse, to receive either directly or through the child’s
parent or guardian if appropriate, at the time of reporting the crime to law enforcement officials, a written statement of the
rights of child victims as provided in this chapter. The written statement shall include the name, address, and telephone
number of a county or local crime victim/witness program, if such a crime victim/witness program exists in the county.
RCW 7.69A.040 — Liability for failure to notify or assure child’s rights
The failure to provide notice to a child victim or witness under this chapter of the rights enumerated in RCW 7.69A.030
shall not result in civil liability so long as the failure to notify was in good faith and without gross negligence. The failure
to make a reasonable effort to assure that child victims and witnesses are afforded the rights enumerated in RCW
7.69A.030 shall not result in civil liability so long as the failure to make a reasonable effort was in good faith and without
gross negligence.
RCW 7.69A.050 — Rights of child victims and witnesses
At the time of reporting a crime to law enforcement officials and at the time of the initial witness interview, child victims
or child witnesses of violent crimes, sex crimes, or child abuse and the child’s parents shall be informed of their rights to
not have their address disclosed by any law enforcement agency, prosecutor’s office, defense counsel, or state agency
without the permission of the child victim or the child’s parents or legal guardian. The address may be disclosed to another
law enforcement agency, prosecutor, defense counsel, or private or governmental agency that provides services to the
child. Intentional disclosure of an address in violation of this section is a misdemeanor.
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RCW 10.99.060 — Notification of victim of prosecution decision
The public attorney responsible for making the decision whether or not to prosecute shall advise the victim of that
decision within five days, and, prior to making that decision shall advise the victim, upon the victim’s request, of the status
of the case. Notification to the victim that charges will not be filed shall include a description of the procedures available
to the victim in that jurisdiction to initiate a criminal proceeding.
[Note — This statute applies only when a domestic violence crime is committed by one family or
household member against another. See RCW 10.99.020 for definition of domestic violence crimes and
“family or household member”]
GR 31(e) and CrR 2.1(a)(2), CrRLJ 2.1(a)(3), JuCR 7.2(a) — Personal Identifiers in
Court Records
GR 31. Access to Court Records
[Adopted effective October 26, 2004]
(e) Personal Identifiers Omitted or Redacted from Court Records
(1) Except as otherwise provided in GR 22 [Access to Family Law Court Records], parties shall not include, and if present
shall redact, the following personal identifiers from all documents filed with the court, whether filed electronically or in
paper, unless necessary or otherwise ordered by the Court.
(A) Social Security Numbers. If the Social Security Number of an individual must be included in a document, only the last
four digits of that number shall be used.
(B) Names of Minor Children. If the involvement of a minor child must be mentioned, only that child's initials shall be
used, unless otherwise necessary.
(C) Financial Account Numbers. If financial account numbers are relevant, only the last four digits shall be recited in the
document.
(D) Driver's License Numbers.
(2) The responsibility for redacting these personal identifiers rests solely with counsel and the parties. The Court or the
Clerk will not review each pleading for compliance with this rule. If a pleading is filed without redaction, the opposing
party or identified person may move the Court to order redaction. The court may award the prevailing party reasonable
expenses, including attorney fees and court costs, incurred in making or opposing the motion.
[Note. This rule may have a substantial impact on prosecutors, especially if police reports are filed with the
charging document to establish probable cause. The rule is written putting the entire burden on the attorney
filing the pleading to comply. Failure to do so appears to set up a possible RPC ethics violation and
sanction.]
[Note. While the rule makes sense for witnesses and other non-parties given the serious problem of identity
theft, the question has arisen among prosecutors concerning personal identifiers of the defendant which are
provided in the charging document as required by other court rules. Given the strong policy of accurately
linking defendants with their criminal history, the general consensus among prosecutors is that the “unless
necessary or otherwise ordered by the Court” language is sufficiently broad to include the following court
rules requiring the prosecutor to provide various personal identifiers of a defendant when filing a criminal
charge] —
CrRLJ 2.1. Complaint—Citation and Notice
(a) Complaint.
(1) Initiation. Except as otherwise provided in this rule, all criminal proceedings shall be initiated by a complaint.
(2) Nature. The complaint shall be a plain, concise and definite written statement of the essential facts constituting the
offense charged. It shall be signed by the prosecuting authority. Allegations made in one count may be incorporated by
reference in another count. It may be alleged that the means by which the defendant committed the offense are unknown or
that he or she committed it by one or more specified means. The complaint shall state for each count the official or
customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have
violated. Error in the citation or its omission shall not be ground for dismissal of the complaint or for reversal of a
conviction if the error or omission did not mislead the defendant to his or her prejudice.
(3) Contents. The complaint shall contain or have attached to it the following information when filed with the court:
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(i) the name, address, date of birth, and sex of the defendant;
(ii) all known personal identification numbers for the defendant, including the Washington driver's operating
license (DOL) number, the state criminal identification (SID) number, the state criminal process control number
(PCN), the JUVIS control number, and the Washington Department of Corrections (DOC) number;
(b) Citation and Notice to Appear.
(1) Issuance. Whenever a person is arrested or could have been arrested pursuant to statute for a violation of law which is
punishable as a misdemeanor or gross misdemeanor the arresting officer, or any other authorized peace officer, may serve
upon the person a citation and notice to appear in court. …
(3) Contents. The citation and notice to appear shall include or have attached to it:
(i) the name of the court and a space for the court's docket, case or file number;
(ii) the name, address, date of birth, and sex of the defendant; and all known personal identification numbers for
the defendant, including the Washington driver's operating license (DOL) number, the state criminal
identification (SID) number, the state criminal process control number (PCN), the JUVIS control number, and
the Washington Department of Corrections (DOC) number;
(iii) the date, time, place, numerical code section, description of the offense charged, the date on which the
citation was issued, and the name of the citing officer;
(iv) the time and place the person is to appear in court, which may not exceed 20 days after the date of the
citation and notice, but which need not be a time certain;
(v) a space for the person to sign a promise to appear. …
CrR 2.1. The Indictment and the Information
(a) Use of Indictment or Information. The initial pleading by the State shall be an indictment or an information in all
criminal proceedings filed by the prosecuting attorney.
(1) Nature. The indictment or the information shall be a plain, concise and definite written statement of the essential facts
constituting the offense charged. It shall be signed by the prosecuting attorney. Allegations made in one count may be
incorporated by reference in another count. It may be alleged that the means by which the defendant committed the offense
are unknown or that the defendant committed it by one or more specified means. The indictment or information shall state
for each count the official or customary citation of the statute, rule, regulation or other provision of law which the
defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the
indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to the
defendant's prejudice.
(2) Contents. The indictment or the information shall contain or have attached to it the following information when filed
with the court:
(i) the name, address, date of birth, and sex of the defendant;
(ii) all known personal identification numbers for the defendant, including the Washington driver's operating
license (DOL) number, the state criminal identification (SID) number, the state criminal process control number
(PCN), the JUVIS control number, and the Washington Department of Corrections (DOC) number.
JuCR 7.2. Information
(a) Content. [Reserved. See RCW 13.40.070.]
(b) Amendment. An information may be amended at any time. The court shall grant additional time if necessary to insure a
full and fair hearing on any new allegations in the amended information.
JuCR 1.4. Applicability of Other Rules
(b) Criminal Rules. The Superior Court Criminal Rules shall apply in juvenile offense proceedings when not inconsistent
with these rules and applicable statutes.
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Standard 3-3.3 Relations With Expert Witnesses
(a) A prosecutor who engages an expert for an opinion should respect the independence of the expert and should not seek
to dictate the formation of the expert's opinion on the subject. To the extent necessary, the prosecutor should explain to the
expert his or her role in the trial as an impartial expert called to aid the fact finders and the manner in which the
examination of witnesses is conducted.
(b) A prosecutor should not pay an excessive fee for the purpose of influencing the expert's testimony or to fix the amount
of the fee contingent upon the testimony the expert will give or the result in the case.
Excerpt from Commentary to ABA Standard
“Advising the Expert Witness … Nothing should be done by a prosecutor to cast suspicion on the process of justice by
suggesting that the expert color an opinion to favor the interests of the prosecutor … The prosecutor should also explain
that the expert is to testify in accordance with the standards of the expert’s discipline without regard to what is best for the
prosecution.”
“Fees to Experts. It is important that the fee paid to an expert not serve to influence the substance of the expert’s
testimony …”
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Standard 3-3.4 Decision to Charge
(a) The decision to institute criminal proceedings should be initially and primarily the responsibility of the prosecutor.
(b) Prosecutors should take reasonable care to ensure that investigators working at their direction or under their authority
are adequately trained in the standards governing the issuance of arrest and search warrants and should inform investigators
that they should seek the approval of a prosecutor in close or difficult cases.
(c) The prosecutor should establish standards and procedures for evaluating complaints to determine whether criminal
proceedings should be instituted.
(d) Where the law permits a citizen to complain directly to a judicial officer or the grand jury, the citizen complainant
should be required to present the complaint for prior approval to the prosecutor, and the prosecutor's action or
recommendation thereon should be communicated to the judicial officer or grand jury.
Excerpt from Commentary to ABA Standard
“Initiation by Prosecutor. Whatever may have been feasible in the past, modern conditions require that the authority to
commence criminal proceedings be vested in a professional, trained, responsible public official …”
“Arrest Warrants and Search Warrants … Where there is no such legal requirement of prosecutorial approval of warrants,
prosecutors should nonetheless require law enforcement officers to obtain prosecutorial approval in close or difficult cases
as defined in advance for law enforcement entities by the prosecution office … Prosecutors should also make every
reasonable effort to ensure that law enforcement officers do not use unnecessary or excessive force in making arrests or
executing warrants.”
“Screening Procedures … Vesting the primary responsibility for the decision to prosecute in the prosecutor’s office
requires that orderly procedures be established for the screening of cases initiated by the police. It is highly desirable, as is
done in some of the larger prosecution offices, that a complaint unit and an indictment unit serve these functions … If the
prosecutor’s screening processes are effective, acquittals should not be frequent. In fact, a high acquittal rate is probably a
prime indicator of either inadequate exercise of discretion in making a charge or inadequate preparation for or presentation
at trial …”
“Citizen Complaints … Where a magistrate has the power to issue a warrant on the complaint of a citizen, it is desirable
that a public prosecutor either endorse the magistrate’s approval or be afforded the means of recording his or her reasons
for declining prosecution.”
SRA Charging and Plea Disposition Standards — RCW 9.94A.411(2)(b) — Police
Investigation
A prosecuting attorney is dependent upon law enforcement agencies to conduct the necessary factual investigation which
must precede the decision to prosecute. The prosecuting attorney shall ensure that a thorough factual investigation has
been conducted before a decision to prosecute is made. In ordinary circumstances the investigation should include the
following: (1) The interviewing of all material witnesses, together with the obtaining of written statements whenever
possible; (2) The completion of necessary laboratory tests; and (3) The obtaining, in accordance with constitutional
requirements, of the suspect’s version of the events.
If the initial investigation is incomplete, a prosecuting attorney should insist upon further investigation before a decision
to prosecute is made, and specify what the investigation needs to include.
Exceptions. In certain situations, a criminal complaint may be filed prior to a complete investigation if (1) probable
cause exists to believe the suspect is guilty; (2) the suspect presents a danger to the community or is likely to flee if not
apprehended; or (3) the arrest of the suspect is necessary to complete the investigation of the crime.
If the exception to the standard is applied, the prosecuting attorney shall obtain a commitment from the law enforcement
agency to complete the investigation in a timely manner, and if the subsequent investigation does not produce sufficient
evidence to meet the normal charging standard, the complaint should be dismissed.
Citizen Complaint
 See CrRLJ 2.1(c) for the process authorized under Washington law for a citizen to institute a criminal
non-felony action where the prosecuting authority has declined to proceed.
 It is our office’s position that CrRLJ 2.1(c) is a judicial usurpation of a legislative and executive
function, and accordingly violates the separation of powers doctrine. We have been successful in getting
citizen complaints dismissed by our District Court bench based on this argument. See Lorraine Kirtley,
Complaining Witness, v. Diane Frost, Carol Rainey, Michael Stowell, and Does 1-100, Potential
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Defendants, Kitsap County District Court No. 980000004. A memorandum of authorities is provided at
3-2.1 Prosecution authority to be vested in a public official, supra.
Case Law — Agreement to Not Prosecute by Police
 State v. Reed, 75 Wn.App. 742, 745-46, 879 P.2d 1000 (Div. 1 1994), review denied, 125 Wn.2d 1016,
890 P.2d 20 (1995) (defendant had agreement with police to “drop charges” on some drug sales in return
for his assistance in making narcotics arrests, but arrests did not occur; Held: absent evidence of
detrimental reliance, agreement not enforceable to prohibit prosecutor from filing charges) —
[T]he prosecuting attorney was not a party to the agreement in this case. We hold that the promise by police to “drop
charges” exceeded their authority and that, without the involvement of the county prosecutor, such an agreement cannot be
enforced as a contract.
The police have no authority to make prosecutorial decisions. The county prosecutor is charged with prosecution of all
criminal actions in which the state is a party. RCW 36.27.020(4). The decision whether to file criminal charges is within
the prosecutor’s discretion. State v. Judge, 100 Wn.2d 706, 713, 675 P.2d 219 (1984) (citing Bordenkircher v. Hayes, 434
U.S. 357, 365, 98 S.Ct. 663, 669, 54 L.Ed.2d 604 (1978)). The prosecutor may make enforceable agreements to reduce or
dismiss charges, see State v. Sonneland, 80 Wn.2d 343, 494 P.2d 469 (1972), but because the police did not first obtain the
approval or consent of the prosecutor, they had no authority to enter into an enforceable agreement not to prosecute Reed.
State v. Hull, 78 Wn.2d 984, 989, 481 P.2d 902 (1971) (a police promise that a cooperative witness would not have to
testify was held unenforceable because the police had no authority to grant such immunity).
The record is sufficient to establish that Snohomish County prosecutors usually follow charging recommendations made
by police pursuant to an agreement between the police and a confidential informant. However, this practice does not
convert the police into agents having the power to legally bind the prosecutor to such agreements.
Our holding does not mean that a defendant may never have a remedy if the police breach such a confidential informant
agreement. Depending on the nature of the police conduct, an unenforceable agreement with police may be the basis for
dismissal under CrR 8.3(b). The trial court properly analyzed Reed’s motion under CrR 8.3(b) and under the doctrine of
detrimental reliance. The trial court’s finding that Reed failed to establish detrimental reliance made it unnecessary for the
court to decide the legal issue of whether the doctrine of detrimental reliance applies to such police/informant agreements.
Reed has not assigned error to the court’s finding that he failed to show detrimental reliance. Thus, we are not required in
this case to decide whether the doctrine of detrimental reliance should be extended to apply to such agreements.
Case Law — Agreement to Not Prosecute by Prosecution — Immunity
 State v. Fish, 99 Wn.App. 86, 992 P.2d 505 (Div. 1 1999), review denied, 140 Wn.2d 1019, 5 P.3d 9
(2000) (State granted transactional immunity to one witness, but refused to do so for a defense witness.
Held: The decision to grant immunity is vested with the prosecution, and a defendant has not right to
demand immunity for a defense witness in order to obtain exculpatory evidence testimony unless a court
finds the prosecutor’s misconduct intimidated the witness to the point the witness refused to testify.)
 State v. Bryant, 146 Wn.2d 90, 42 P.3d 1278 (2002) (King County Prosecutor’s Office entered
immunity agreement with Defendant wherein it agreed that nothing Defendant revealed could be used
against him. Snohomish County Prosecutor’s Office thereafter filed first degree robbery charges, and
sought to use statements against Defendant that were suppressed in King County case. Snohomish
prosecution dismissed n plurality decision) —
Chambers, with Smith. “Majority” opinion. A county prosecutor cannot bind another county’s prosecution.
But fundamental fairness requires dismissal due to failure of King County prosecutor to clearly inform
defendant immunity limited to King County cases by using broad language “nothing you reveal can ever be
used against you in any prosecution.”
Alexander, concurring, with Johnson, Madsen, Sanders. A county prosecutor can bind another county’s
prosecution since all prosecutors represent the same plaintiff, the State of Washington.
Owens, dissenting, with Bridge and Ireland. A county prosecutor cannot bind another county’s prosecution.
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Rejects fundamental fairness assertion by “majority” opinion.
[Query. Is this decision limited to immunity cases? Is it based upon contract law between defendant and
prosecution? Is it merely a drafting issue settled by tighter prosecution language? Is the fundamental
fairness discussion merely holding an ambiguous phrase against the drafter?]
[Note. Future cases will certainly explain Washington law in this area, perhaps led by the current Pierce
County death penalty case involving Spokane serial killer Yates. He recently unsuccessfully claimed before
the Pierce trial court that he had a deal with the Spokane prosecutor that his guilty pleas in Spokane would
foreclose future Washington death penalty charges.]
Case Law — Defendant’s Constitutional Right to Notice of Essential Elements —
Leach and Kjorsvik Rules
 State v. Leach, 113 Wn.2d 679, 782 P.2d 552 (1989) ((1) public indecency complaint was
constitutionally defective for failure to specify whether misdemeanor (victim 14 or older) or gross
misdemeanor (victim under 14) was being charged and omitting essential facts from which defendant could
have made such a determination; Held: conviction on gross misdemeanor reversed. (2) DWI. Held:
misdemeanor citation describing offense charged as “DWI” and listing code section violated was
constitutionally sufficient, conviction affirmed).
 State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991) (1° robbery charge, where information alleged
“unlawful” taking of property from a person by force, but failed to include “intent”, information
challenged for first time on appeal; Held: “intent” is a case-created necessary element of robbery, but
under Kjorsvik post-verdict liberal construction rule, “unlawful” sufficiently gives notice of intent,
conviction affirmed) —
ISSUE ONE
…All essential elements of a crime, statutory or otherwise, must be included in a charging document in order to afford
notice to an accused of the nature and cause of the accusation against him.
This conclusion is based on constitutional law and court rule. Const. art. 1, § 22 (amend. 10) provides in part:
In criminal prosecutions the accused shall have the right ... to demand the nature and cause of the
accusation against him, ...
U.S. Const. amend. 6 provides in part:
In all criminal prosecutions, the accused shall ... be informed of the nature and cause of the accusation; ...
CrR 2.1(b) provides in part that
the information shall be a plain, concise and definite written statement of the essential facts constituting the
offense charged.
Although our robbery statute, RCW 9A.56.190, does not include an intent element, our settled case law is clear that
“intent to steal” is an essential element of the crime of robbery. At issue is whether this nonstatutory element should have
been included in the information in order to fully inform the defendant of the accusation made against him.
In the case of State v. Leach, 113 Wn.2d 679, 689, 782 P.2d 552 (1989), we recently stated that “the ‘essential elements’
rule requires that a charging document allege facts supporting every element of the offense, in addition to adequately
identifying the crime charged”. This core holding of Leach requires that the defendant be apprised of the elements of the
crime charged and the conduct of the defendant which is alleged to have constituted that crime. Leach explains that merely
reciting the statutory elements of the crime charged may not be sufficient.
Because statutory language may not necessarily define a charge sufficiently to apprise an accused with
reasonable certainty of the nature of the accusation against that person, to the end that the accused may prepare
a defense and plead the judgment as a bar to any subsequent prosecution for the same offense, mere recitation of
the statutory language in the charging document may be inadequate.
Leach, 113 Wn.2d at 688. We have recently reiterated that it is sufficient to charge in the language of a statute if the
statute defines the offense with certainty.…
The primary goal of the “essential elements” rule is to give notice to an accused of the nature of the crime that he or she
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must be prepared to defend against. In Leach, we noted that defendants are entitled to be fully informed of the nature of
the accusations against them so that they can prepare an adequate defense.
It is neither reasonable nor logical to hold that a statutory element of a crime is constitutionally required in a charging
document, but that an essential court-imposed element of the crime is not required, in light of the fact that the primary
purpose of such a document is to supply the accused with notice of the charge that he or she must be prepared to meet.
Statutory elements are, of course, easier to ascertain since the statutes are usually cited in the charging document, whereas
court-imposed elements must be discovered through at least cursory legal research. This court has stated that defendants
should not have to search for the rules or regulations they are accused of violating. We therefore conclude that the correct
rule is that all essential elements of an alleged crime must be included in the charging document in order to afford the
accused notice of the nature of the allegations so that a defense can be properly prepared.
ISSUE TWO
…Charging documents which are not challenged until after the verdict will be more liberally construed in favor of
validity than those challenged before or during trial. We hold that, viewed in this light, the defendant in the present case
was afforded adequate notice of the nature and cause of the charge against him and affirm his conviction.
In this case, the defendant did not challenge the sufficiency of the charging document until he appealed following his
conviction at a jury trial. Before discussing whether the defendant was afforded adequate notice of the elements of the
charge against him, it is first necessary to clarify the standard of appellate review to be used in such cases. Once again,
there also exists a significant split of authority among the divisions of the Court of Appeals on the standard of review for
challenges to a charging document first raised on appeal.
A challenge to the constitutional sufficiency of a charging document may be raised initially on appeal. However, the
question posed here is whether a different standard of review should be applied when, as here, the accused first raises the
issue on appeal.…
A different standard of review should be applied when no challenge to the charging document has been raised at or
before trial because otherwise the defendant has no incentive to timely make such a challenge, since it might only result in
an amendment or a dismissal potentially followed by a refiling of the charge. Applying a more liberal construction on
appeal discourages what Professor LaFave has described as “sandbagging”. He explains this as a potential defense
practice wherein the defendant recognizes a defect in the charging document but foregoes raising it before trial when a
successful objection would usually result only in an amendment of the pleading.
Under this rule of liberal construction, even if there is an apparently missing element, it may be able to be fairly implied
from language within the charging document. Many cases utilize the Hagner [v. United States, 285 U.S. 427, 76 L.Ed.
861, 52 S.Ct. 417 (1932)] standard and hold that if the necessary facts appear in any form, or by a fair construction can be
found within the terms of the charge, then the charging document will be upheld on appeal. Thus, when an objection to an
indictment is not timely made the reviewing court has considerable leeway to imply the necessary allegations from the
language of the charging document.…
We hereby adopt the federal standard of liberal construction in favor of the validity of charging documents where
challenges to the sufficiency of a charging document are initially raised after verdict or on appeal, but we further include in
that standard both an essential elements prong and an inquiry into whether there was actual prejudice. Not all of the
federal cases appear to overtly require both inquiries but the leading case of Hagner so suggests. In addition, a number of
federal courts in dealing with this issue have gone on to question whether the accused was prejudiced by the inartful or
vague language in the charging document.
A close reading of the federal cases shows that the federal standard is, in practice, often applied as a 2-prong test: (1) do
the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and, if so, (2)
can the defendant show that he or she was nonetheless actually prejudiced by the inartful language which caused a lack of
notice?
The standard of review we here adopt will require at least some language in the information giving notice of the
allegedly missing element(s) and if the language is vague, an inquiry may be required into whether there was actual
prejudice to the defendant. The second prong--allowing the defendant to show that actual prejudice resulted from inartful
or vague language--affords an added layer of protection to a defendant even where the issue is first raised after verdict or
on appeal.
The first prong of the test--the liberal construction of the charging document’s language--looks to the face of the
charging document itself. The second or “prejudice” prong of the test, however, may look beyond the face of the charging
document to determine if the accused actually received notice of the charges he or she must have been prepared to defend
against. It is possible that other circumstances of the charging process can reasonably inform the defendant in a timely
manner of the nature of the charges. This 2-prong standard of review strikes a balance: on the one hand it discourages the
defense from postponing a challenge to the charge knowing the charging document is flawed; on the other hand, it insures
that the State will have given fair notice of the charge to the defendant.…
We conclude that the 2-prong standard of postverdict review enunciated herein fairly balances the right of a defendant to
proper and timely notice of the accusation against the defendant and the right of the State not to have basically fair
convictions overturned on delayed postverdict challenges to the sufficiency of a charging document.
Applying this 2-prong standard of review to the present case, our first inquiry is whether the nonstatutory element of
“intent to steal” appears in any form, or by fair construction can be found in this information. In this connection, we
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observe that it has never been necessary to use the exact words of a statute in a charging document; it is sufficient if words
conveying the same meaning and import are used. This same rule applies to nonstatutory elements. It is therefore not fatal
to an information or complaint that the exact words of a case law element are not used; the question in such situations is
whether all the words used would reasonably apprise an accused of the elements of the crime charged. Words in a
charging document are read as a whole, construed according to common sense, and include facts which are necessarily
implied.
The State argues that the word “unlawfully” sufficiently alleges the intent to steal element of the crime of robbery.
Authority is divided on whether the allegation that an act was done feloniously or unlawfully is a sufficient allegation of
criminal intent. This inquiry turns on the elements of the particular crime charged and the meaning to be derived from the
language of the charging document.…
In State v. Hicks, 102 Wn.2d 182, 683 P.2d 186 (1984), this court found that intent to steal was an essential element of
the crime of robbery and if the defendant thought (as was the explanation of the defendant in that case) that he was merely
retrieving his own property, that would have constituted a defense to the robbery charge. Under the facts of Hicks, the
property taken by the defendant might have been his own property, hence the taking was arguably a lawful taking.
Accordingly, this court reversed the conviction for failure of the information to include the “intent to steal” element of
robbery and because of a refusal by the trial judge to instruct on this element.
In the present case, however, the information charged that the defendant unlawfully, with force, and against the baker’s
will, took the money while armed with a deadly weapon. It is hard to perceive how the defendant in this case could have
unlawfully taken the money from the cash register, against the will of the shopkeeper, by use (or threatened use) of force,
violence and fear while displaying a deadly weapon and yet not have intended to steal the money. The case before us is
thus clearly distinguishable from Hicks. Giving the information charging this defendant a liberal construction in favor of
its validity, reading it as a whole and in a common sense manner, we conclude that it did inform the defendant of all the
elements of robbery.
Since we have determined that all of the essential elements of robbery were contained in the charging document, we turn
to the second prong of the inquiry and ask whether the defendant has shown that he was nonetheless prejudiced by any
vague or inartful language in the charge. The defendant did not, and does not, make any argument that he had a claim of
right to the property taken from the cash register; his defense was simply that he didn’t do it. The certificate of probable
cause stated that the defendant entered the donut shop at midnight, pulled a knife, held it to the baker’s throat and stated,
“This is a robbery.” In the trial court’s “to convict” instruction to the jury setting forth the elements of the offense that had
to be proved by the State, the common law intent element was included. Under the facts of this case, we conclude that
there was no prejudice to the defendant due to any vague or inartful language in the charging document.
Since we conclude that the robbery charge was sufficient to give the defendant reasonable notice of the elements of the
charge against him, and that he suffered no prejudice from the manner in which the crime was charged, there is no
reversible error.
Conviction affirmed.
(Citations omitted.) (Footnotes omitted.)
 State v. Kitchen, 61 Wn.App. 915, 812 P.2d 888, review denied, 117 Wn.2d 1019, 818 P.2d 1099 (Div.
3 1991) (“you delivered controlled substance” not enough to convey guilty knowledge, Held: conviction
reversed).
 State v. Sanchez, 62 Wn.App. 329, 814 P.2d 675 (Div. 3 1991) (Vehicular homicide, Held: causation
sufficiently charged under Kjorsvik liberal construction rule.)
 State v. Dukowitz, 62 Wn.App. 418, 814 P.2d 234 (Div. 1 1991), review denied, 118 Wn.2d 1031, 828
P.2d 563 (1992) (“simple assault” conveys all elements, and need not include statement that assault charged
is not 1°, 2° or 3°; “assault” by definition includes intentional act).
 State v. Rhode, 63 Wn.App. 630, 821 P.2d 492 (Div. 1 1991), review denied, 118 Wn.2d 1022, 827
P.2d 1392 (1992) (attempted 1° murder, Held: under Kjorsvik liberal construction rule, “attempt”
encompasses substantial step).
 State v. Zamora, 63 Wn.App. 220, 817 P.2d 880 (Div. 3 1991) (School zone enhancement elements
must be plead and proven beyond a reasonable doubt, Held: sentence enhancement reversed), abrogated on
other grounds by State v. Silva-Baltazar, 125 Wn.2d 472, 886 P.2d 138 (1994) (School zone allegation is a
sentencing enhancement, not a definition of an offense).
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 State v. Hopper, 118 Wn.2d 151, 158-59, 822 P.2d 775 (1992) (Kjorsvik post-verdict liberal
construction rule; Held: (1) “assault” includes the element of intent, and therefore construed liberally also
includes the knowledge element which was an essential element in this case, (2) technical defect by citing
wrong statute is not of constitutional magnitude absent a showing of prejudice by the defendant).
 State v. Ferro, 64 Wn.App. 195, 823 P.2d 526 (Div. 1 1992) (Public indecency, where in space for
crime description “(See notes”) was inserted, Held: while documents may be incorporated by reference,
“See notes” not specific enough as to what documents are being incorporated, conviction reversed).
 State v. Graham, 64 Wn.App. 305, 824 P.2d 502 (Div. 1 1992) (2° robbery, Held: non-statutory
element of ownership of property taken is someone other than defendant is sufficiently conveyed by
“unlawfully” under Kjorsvik liberal construction rule.)
 State v. Sanders, 65 Wn.App. 28, 827 P.2d 354, review denied, 119 Wn.2d 1024, 838 P.2d 691 (Div. 1
1992) (3° malicious mischief where no $$$ amount was alleged and defendant convicted of misdemeanor,
Held: Leach distinguished since it is obvious that defendant was charged with misdemeanor since no $$$
alleged [$50 or more is gross misdemeanor], since $$$ not an element of misdemeanor 3° malicious
mischief, conviction affirmed).
 State v. Gallegos, 65 Wn.App. 230, 828 P.2d 37, review denied, 119 Wn.2d 1024, 838 P.2d 690 (Div.
1 1992) (Attempted 2° rape, Held: engaging in intercourse is not an element of attempted 2° rape,
conviction affirmed).
 State v. Hartz, 65 Wn.App. 351, 828 P.2d 618 (Div. 1 1992) (1° felony murder by robbery, Held:
robbery is essential element, but the elements of robbery are not, conviction affirmed).
 State v. Bryant, 65 Wn.App. 428, 828 P.2d 1121, review denied, 119 Wn.2d 1015, 833 P.2d 1389
(Div. 1 1992) (2° felony murder, Held: alternative means of proving underlying felony are not elements).
 State v. Berglund, 65 Wn.App. 648, 829 P.2d 247, review denied, 119 Wn.2d 1021, 838 P.2d 691 (Div.
1 1992) (Attempted 2° burglary, Held: “attempt” is sufficient to convey substantial step under Kjorsvik
liberal construction).
 State v. Johnson, 119 Wn.2d 143, 149-50, 829 P.2d 1078 (1992) (several defendants charged with
unlawful delivery of a controlled substance, and before trial unsuccessfully moved to dismiss contending
that the informations were constitutionally defective because they only alleged the defendants “unlawfully”
delivered cocaine and did not specify the defendant knew the identity of the substance delivered; Held:
Unlawful delivery of a controlled substance has a necessary element of “knowledge” and under pre-verdict
strict construction rule, convictions must be reversed) —
…Nevertheless, when an information is challenged pretrial, defendants need not show they were prejudiced by missing
elements. Whether a defendant was prejudiced by a defective information is only to be considered if the information is
challenged for the first time after a verdict. See Kjorsvik, 117 Wn.2d at 106, 812 P.2d 86; State v. Hopper, 118 Wn.2d
151, 155-56, 822 P.2d 775 (1992). Were we to accept the probable lack of prejudice as a justification for finding these
informations sufficient, we would encourage defendants with questionable charging documents to defer their motions until
after trial. Such “sandbagging” is exactly what we sought to avoid by allowing a liberal construction of informations
challenged initially on appeal. Kjorsvik, 117 Wn.2d at 103. See United States v. Hooker, 841 F.2d 1225, 1230 (4th Cir.
1988).
While it is true informations challenged for the first time after verdict are reviewed for validity under a liberal standard,
the same is not true for informations challenged, as these were, before trial. See Kjorsvik, 117 Wn.2d at 105. The
charging documents in these cases are not to be examined to determine whether the missing elements appear in any form,
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or by fair construction can be found, and the language must not be “inartful or vague” with respect to the elements of the
crime. See Kjorsvik, at 106. Rather, due to the context of a pretrial challenge, we construe the charging language strictly;
because each petitioner was simply charged with “unlawfully deliver[ing] a controlled substance”, the informations failed
to contain language clearly suggesting the requisite criminal intent. See Hooker, 841 F.2d at 1233 (“[A] facial deficiency
in [an information] is even more intolerable because the government had actual notice of the defect well before trial ...”).
We decline to find “unlawfully” has the same meaning and import as “knowingly”; “unlawfully”, standing alone, is
insufficient.
Why the State did not move to amend the informations in these cases and add, at least, that each defendant knew the
substance delivered was cocaine is a mystery. Whether motivated by obstinacy or advocacy, the State failed to take
advantage of CrR 2.1(e), which allows motions to amend an information at any time prior to the final verdict, as long as
substantial rights of the defendant are not prejudiced. Amendments are liberally allowed, with continuances granted to a
defendant if necessary to prepare to meet the altered charge. State v. Pelkey, 109 Wn.2d 484, 490, 745 P.2d 854 (1987). It
is obvious the State could easily have done so with little or no delay in the scheduled trials.
A bright line rule mandating dismissal of defective informations challenged before trial is workable and not unduly
harsh, given the liberal amendment rule and the ease with which prosecutors can discern the elements of most common
crimes. See Kjorsvik, 117 Wn.2d at 102 n. 14, 812 P.2d 86. In addition, such a rule will guide prosecutors and provide
them with an incentive to see to it that the charging document is constitutionally sufficient from the time of filing and
beyond. This should result in fewer dismissals, since the prosecutors will presumably be more careful if they know an
error could result in dismissal of the charge. Kjorsvik, 117 Wn.2d at 119 (Utter, J., dissenting).
 State v. Sims, 119 Wn.2d 138, 829 P.2d 1075 (1992) (possession of a controlled substance with intent
to manufacture or deliver, Held: that common-law element of “guilty knowledge,” consisting of
understanding of identity of product that is required for offense of unlawful delivery of controlled
substance, is not additional element which must be proved to convict of unlawful possession of controlled
substance with intent to manufacture or deliver controlled substance, convictions affirmed) —
…It is impossible for a person to intend to manufacture or deliver a controlled substance without knowing what he or she is
doing. By intending to manufacture or deliver a controlled substance, one necessarily knows what controlled substance
one possesses as one who acts intentionally acts knowingly. RCW 9A.08.010(1)(a) & (2). Without knowledge of the
controlled substance, one could not intend to manufacture or deliver that controlled substance. Therefore, there is no need
for an additional mental element of guilty knowledge.
Where one merely possesses a controlled substance without the statutory element of intent, one is guilty of simple
possession under RCW 69.50.401(d), absent unwitting possession. See State v. Cleppe, 96 Wn.2d 373, 378-81, 635 P.2d
435 (1981), cert. denied, 456 U.S. 1006, 73 L.Ed.2d 1300, 102 S.Ct. 2296 (1982).
 Auburn v. Brooke, 119 Wn.2d 623, 627, 635-40, 836 P.2d 212 (1992) (defendants charged by citation
with disorderly conduct and hit and run-attended; Held: non-felony defendants charged by citation or
complaint have constitutional right to notice of all essential elements of charge in the charging document,
convictions reversed without prejudice) —
…The essential elements rule applies to all charging documents, including citations used as final charging documents; the
recitation of no more than a numerical code section and the title of an offense does not satisfy that rule unless such
abbreviated form contains all essential elements of the crime(s) charged.…
…The citation in Brooke simply stated:
“9.40.010(A)(2) Disorderly Conduct.”
It is not even apparent from the citation that the numerical section cited refers to the former Auburn City Code, though
the parties agree that it does.…
The City of Auburn concedes that the citation did not specify the elements of the offense alleged in the citation.
…Mr. Wandler argues that the citation issued to him, also used as the final charging document, was a complaint and not a
citation since he refused to sign it--and also because it was initialed by a city attorney as well as being signed by the issuing
police officers.
The critical difference between a citation and a complaint is that a citation is issued by a police officer whereas a
complaint is issued and signed by a prosecutor. An officer is allowed to issue a citation without prior approval of a
prosecutor, and when signed and certified by the officer and properly filed, it is deemed a lawful complaint for the purpose
of initiating prosecution. The signature of the accused thereon is just a promise to appear and allows an officer to release
the individual based on that promise.
The charging document in the Leach case (Elverston portion) was also unsigned by the accused and signed by both a
prosecutor and the issuing police officer. In Leach, we treated that document as a citation rather than a complaint. The
Court of Appeals decision in Wandler correctly concluded that lack of the defendant’s signature and the presence of a
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prosecutor’s initials did not convert the charging document from a citation into a complaint. However, as noted, even a
citation must comport with the essential elements rule.
The charging document in Wandler stated:
“11.56.420 Hit/Run; Attended”.
The parties agree the numerical citation refers to the Seattle Municipal Code.…
The City of Seattle also concedes that the citation did not specify the elements of the alleged offense.
…Applying the first prong of Kjorsvik, it is apparent from the record that in each of the cases before us the necessary
elements of the offenses alleged do not appear in any form in the charging documents. Hence, we do not reach the second
or prejudice prong of Kjorsvik. And since the essential elements rule applies to misdemeanor and gross misdemeanor
citations, the citations herein are defective as final charging documents and the convictions based thereon must be reversed
and the charges dismissed without prejudice.
…Furthermore, even if a conviction is reversed due to an insufficient charging document, the result is a dismissal without
prejudice to the right of the municipality or state to recharge and retry if it so chooses. Our state and federal constitutions
both permit retrial after a conviction is reversed due to a defect in a charging document. Similarly, statutes of limitation
usually do not bar recharging a defendant whose conviction has been reversed due to a defective charging document.
Based on the foregoing, petitioner James A. Brooke’s conviction for disorderly conduct and petitioner Casper S.
Wandler’s conviction for hit and run driving are reversed and remanded for dismissal of the charges without prejudice to
the refiling of the charges against them.
 State v. Davis, 119 Wn.2d 657, 663, 835 P.2d 1039 (1992) (4° assault. Held: Kjorsvik post-verdict
liberal construction rule; (1) “assault” reasonably includes the non-statutory element of intent, (2) common
law methods of committing assault are not elements, conviction affirmed).
 State v. Plano, 67 Wn.App. 674, 838 P.2d 1145 (Div. 1 1992) (4° assault, Held: name of victim is not
an element).
 State v. Simon, 120 Wn.2d 196, 840 P.2d 172 (1992) (Promoting prostitution of person under 18, Held:
age is a necessary element, and under Kjorsvik, dismissed without prejudice).
 State v. Craven, 67 Wn.App. 921, 841 P.2d 774 (Div. 1 1992) (3 ° assault; Held: “assault” sufficient to
allege intent under Kjorsvik liberal construction).
 State v. Schaffer, 120 Wn.2d 616, 845 P.2d 281 (1993) (3° malicious mischief over $50 amended
before state rested to misdemeanor charge to conform with proof, Held: amendment charging lesser degree
before state rested proper).
 State v. Gurrola, 69 Wn.App. 152, 848 P.2d 199, review denied, 121 Wn.2d 1032, 856 P.2d 383 (Div.
3 1993) (sexual gratification is not an element of child rape).
 State v. Armstrong, 69 Wn.App. 430, 848 P.2d 1322, review denied, 122 Wn.2d 1005, 859 P.2d 602
(Div. 1 1993) (after jury selected, defense moved to dismiss, state sought to amend to add essential element
and defense objected, trial court refused to allow amendment, Held: defense objection to amended
information was invited error, and court will not review on appeal.).
 State v. Johnson, 69 Wn.App. 935, 851 P.2d 701 (Div. 1 1993) (Delivery of controlled substance:
Held: “unlawful” implies guilty knowledge under Kjorsvik liberal construction).
 Seattle v. Lewis, 70 Wn.App. 715, 718-19, 855 P.2d 327 (Div. 1 1993), review denied, 123 Wn.2d
1011, 869 P.2d 1084 (1994) (Held: charging document need not allege absence of defense).
 State v. VanValkenburgh, 70 Wn.App. 812, 856 P.2d 407 (Div. 3 1993) (2° malicious mischief, Held:
name of specific property owner not an element).

State v. Valdobinos, 122 Wn.2d 270, 284-88, 858 P.2d 199 (1993) (Conspiracy to deliver controlled
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substance, Held: conspiracy does not include guilty knowledge element).
 State v. Cozza, 71 Wn.App. 252, 858 P.2d 270 (Div. 3 1993) (Indecent liberties, child victim’s inability
to specify exact date over 3 year period does not violate due process by depriving defendant of reasonable
opportunity to raise alibi defense, conviction affirmed).
 State v. Wallway, 72 Wn.App. 407, 865 P.2d 531 (Div. 2 1994) (Unlawful manufacture of controlled
substance, Held: assuming knowledge is an element, “unlawful” and “manufacture” sufficiently convey
mens rea under Kjorsvik liberal construction, conviction affirmed).
 State v. Arseneau, 75 Wn.App. 747, 879 P.2d 1003 (Div. 1 1994), review denied, 126 Wn.2d 1006, 891
P.2d 38 (1995) (1° incest, Held: a descendent being under age 18 is a defense, but not an element of the
crime, Kjorsvik liberal construction).
 State v. Roberts, 76 Wn.App. 192, 883 P.2d 349 (Div. 1 1994), review denied, 126 Wn.2d 1011, 892
P.2d 1089 (1995) (Drug burn statute, Held: information charging defendant with offering to deliver
controlled substance and delivering another substance sufficient under Kjorsvik liberal construction to
convey element of delivery of non-controlled substance).
 State v. Vangerpen, 125 Wn.2d 782, 787-91, 794-95, 888 P.2d 1177 (1995) (defendant charged with
attempted 1° murder, but information lacked the necessary element of premeditation, defendant moved to
dismiss after the state rested; Held: Johnson pre-verdict strict construction rule applies, and conviction
reversed without prejudice for state to refile charges) —
…We have repeatedly and recently insisted that a charging document is constitutionally adequate only if all essential
elements of a crime, statutory and non-statutory, are included in the document so as to apprise the accused of the charges
against him or her and to allow the defendant to prepare a defense. This “essential elements rule” has long been settled law
in Washington and is based on the federal and state constitutions and on court rule. Merely citing to the proper statute and
naming the offense is insufficient to charge a crime unless the name of the offense apprises the defendant of all of the
essential elements of the crime. Error in a numerical statutory citation is not reversible error unless it prejudiced the
accused.
The instructions in this case properly instructed the jury on all the elements of the crime of attempted murder in the first
degree. However, proper jury instructions cannot cure a defective information. Jury instructions and charging documents
serve different functions.
Although this court has recently liberalized the standard of review for charging documents which are first challenged on
appeal, no decision has questioned the constitutionally mandated rule that all essential elements of a charged crime must be
included in the charging document. In this case, the sufficiency of the Information was challenged prior to verdict and
therefore the liberalized standard of review announced in State v. Kjorsvik, 117 Wn.2d 93, 812 P.2d 86 (1991) does not
apply.
With the “essential elements rule” in mind, the issue in the present case is whether the information was amended too late
in the trial process. The amendment here occurred after both the State and the defendant had rested their cases. The
amendment of informations is controlled by former CrR 2.1(e) and cases interpreting that rule. Former CrR 2.1(e) states:
The court may permit any information ... to be amended at any time before verdict or finding if substantial rights of the
defendant are not prejudiced.
In State v. Pelkey, 109 Wn.2d 484, 491, 745 P.2d 854 (1987), this court held that an information may not be amended
after the State has rested its case in chief unless the amendment is to a lesser degree of the same crime or a lesser included
offense. Any other amendment is deemed to be a violation of the defendant’s article 1, § 22 (amend. 10) right to demand
the nature and cause of the accusation against him or her. The Pelkey majority stated that such a violation necessarily
prejudices this substantial constitutional right within the meaning of CrR 2.1(e). This court therefore held that the trial
court committed reversible error when it allowed a midtrial amendment from the crime of bribery to the crime of trading in
special influence.
In Pelkey, we pointed out that the amendment of an information to charge a different crime after trial has begun is much
more likely to cause prejudice to a defendant than is a pre-trial amendment which should be liberally granted. In Pelkey,
we explained that all the pretrial motions, voir dire of the jury, opening argument, questioning and cross examination of
witnesses are based on the precise nature of the charge alleged in the information.
In State v. Markle, 118 Wn.2d 424, 823 P.2d 1101 (1992), the trial court had allowed an amendment of the charge from
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the crime of statutory rape to indecent liberties after the State had rested its case. The State acknowledged that in Pelkey
this court held it is automatic reversible error for a trial court to allow the midtrial amendment of an information after the
State has rested where the amended charge is a crime that is neither a lesser included offense nor an offense of lesser
degree. In Markle, the State asked us to overrule Pelkey to the extent of that holding. We unanimously declined to
overrule Pelkey and held that the midtrial amendment was, under Pelkey, “reversible error per se even without a defense
showing of prejudice.” Markle, 118 Wn.2d at 437.
In State v. Schaffer, 120 Wn.2d 616, 845 P.2d 281 (1993), we declined to find any per se rule prohibiting amendments
during the presentation of the State’s case. We explained in Schaffer that Pelkey only prohibits amendments after the State
has rested its case because the likelihood of prejudice is so great. We reiterated the bright line Pelkey rule in Schaffer
when we explained that “[t]here is no need to redraw the line established in Pelkey to a point earlier in the criminal
process.” Schaffer, 120 Wn.2d at 622.
In this case, the State argues that this court should hold that Pelkey does not prevent the State from amending an
information when the amendment corrects an omission of a statutory element when the defendant cannot show any
prejudice from the amendment. As noted above, we rejected this argument in Pelkey and again in Markle; we again do so
here.
The State argues that the omission of the element of “premeditation” was only a “scrivener’s” error and relies on the
cases which hold that technical defects can be remedied midtrial. Convictions based on charging documents which contain
only technical defects (such as an error in the statutory citation number or the date of the crime or the specification of a
different manner of committing the crime charged) usually need not be reversed. However, omission of an essential
statutory element cannot be considered a mere technical error. Sometimes errors made in charging documents are
oversights in omitting an element of the crime, but for sound policy reasons founded in our state and federal constitutions,
this court has nonetheless consistently adhered to the essential elements rule.
In the present case, the information alleged only intent to cause death, not premeditation. Therefore, the State failed to
charge one of the statutory elements of first degree murder and instead included only the mental element required for
second degree murder. The State seeks to distinguish Pelkey and Markle on the basis that in those cases the State sought to
change the crime charged after the State had rested, while in this case the State merely seeks to add an essential element.
The fallacy in this argument is that by adding an element, the State changed the crime charged from attempted murder in
the second degree to attempted murder in the first degree.
This court drew a bright line in Pelkey, which we adhered to in Markle and in Schaffer. The rule that any amendment
from one crime to a different crime after the State has rested its case is per se prejudicial error (unless the change is to a
lesser included or lesser degree crime) protects the constitutional right of the accused to be informed of the nature of the
offense charged. A change in the rule would necessitate a reversal of both Pelkey and Markle and this we decline to do.…
…When a conviction is reversed due to an insufficient charging document, the result is a dismissal of charges without
prejudice to the right of the State to recharge and retry the offense for which the defendant was convicted or for any lesser
included offense.…
…We decline the invitation to find the defendant guilty of attempted murder in the second degree, because that is not the
crime which the jury found the defendant had committed. In a case where there is sufficient evidence to support the jury’s
verdict, as the trial court ruled there was here, it would be a usurpation of the jury’s function for an appellate court to find
the defendant guilty of a different crime than that returned in the jury’s verdict. Additionally, it would result in overruling
the recent cases from this court discussed above. If we were to remand for imposition of a conviction of attempted murder
in the second degree, it would set a troublesome precedent. If we were to so rule, then in a future case, no matter how
serious the crime, if the charging document omitted one or more elements of a more serious crime and inadvertently listed
only the elements of a minor crime, the appellate court would have to remand for imposition of a sentence for only the
minor crime. No precedent has been cited or located for such a result. This court and the United States Supreme Court
have consistently held that the State is not foreclosed from refiling charges when a conviction is reversed because of an
insufficient charging document.
Additionally, it is possible for a charging document to inadvertently omit one or more elements of the crime sought to be
charged and succeed in charging no crime at all. In that case, under existing law, the defendant could be recharged with
the crime originally sought to be charged. It would result in an anomalous situation if we accepted the request that the
defendant be convicted of only attempted murder in the second degree in this case. In future cases, an information which
happened to charge a lesser crime than intended by the State would result in the defendant being sentenced only on the
lesser crime. However, a reversal of a conviction based on an information which charged no crime at all would result in a
dismissal that allowed the State to refile corrected charges. We cannot countenance such an anomalous result. We refuse
the defendant’s request to remand this case for imposition of sentence for the crime of attempted murder in the second
degree. Rather, we reverse the defendant’s conviction and dismiss the charges without prejudice to the right of the State to
recharge and retry if it so chooses.
 State v. Brett, 126 Wn.2d 136, 154-55, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121, 133 L.Ed.2d
858, 116 S.Ct. 931 (1996) (Held: aggravated circumstances are not elements of the crime, but rather
aggravation of penalty factors).
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 State v. Holland, 77 Wn.App. 420, 891 P.2d 49, review denied, 127 Wn.2d 1008, 898 P.2d 308 (Div. 3
1995) (Child molestation with 3 counts alleged over 3 separate periods of time, Held: defendant given
adequate notice of 3 charges and 3 time periods, state not required to fix an exact time of offense when it
cannot reasonably do so, Kjorsvik liberal construction).
 State v. Tang, 77 Wn.App. 644, 893 P.2d 646, review denied, 127 Wn.2d 1017, 904 P.2d 299 (Div. 1
1995) (Vehicular homicide. Held: information alleging defendant drove DUI and thereby caused death is
sufficient under Vangerpen strict construction to advise defendant of the need to prove a causal connection
between driving and death).
 State v. Rodriguez, 78 Wn.App. 769, 771, 898 P.2d 871 (Div. 1 1995), review denied, 128 Wn.2d
1015, 911 P.2d 1343 (1996) (Held: rule that right to be informed of nature of charges is not violated when
defendant is found guilty as accomplice even though information did not expressly charge aiding or
abetting or refer to other persons applies with equal force following amendment to accomplice liability
statute) —
…An accused has a constitutional right to be informed of the nature of the charges against him or her. Washington courts
have held that this right is not violated when a defendant is found guilty as an accomplice even though the information did
not expressly charge aiding or abetting or refer to other persons. See, e.g., State v. Davenport, 100 Wn.2d 757, 764-65, 675
P.2d 1213 (1984); State v. Carothers, 84 Wn.2d 256, 260, 525 P.2d 731 (1974), overruled on other grounds, State v.
Harris, 102 Wn.2d 148, 685 P.2d 584 (1984); State v. Frazier, 76 Wn.2d 373, 375-77, 456 P.2d 352 (1969); State v.
Thompson, 60 Wn.App. 662, 666, 806 P.2d 1251 (1991).
 State v. Bacani, 79 Wn.App. 701, 703, 902 P.2d 184 (1995), review denied, 129 Wn.2d 1001, 914 P.2d
66 (1996) (Held: attempted 1° robbery has an essential nonstatutory element that ownership of the property
taken was in some person other than the defendant, and under Vangerpen pre-verdict strict construction
rule, “unlawful” and “steal” do not convey essential nonstatutory ownership element, conviction reversed
and dismissed without prejudice to refile). Note Judge Grosse’s concurring opinion concerning the 1903
authority that “steal” does not include the property was owned by someone other than the defendant —
…The reasoning supporting the 1903 decision in State v. Morgan, 21 Wash. 226, 71 P.2d 723 (1903), is as dead as the
judges who authored it.
 State v. Tunney, 129 Wn.2d 336, 340-41, 917 P.2d 95 (1996) (3° assault, Held: without deciding
whether knowledge that the victim is a police office is an element, conviction affirmed under Kjorsvik
liberal construction rule) —
…In this case, the information omitted the element that Mr. Tunney knew the victim was a police officer. We agree with
the Court of Appeals that the information was nonetheless sufficient under the liberal construction rule because knowledge
of the victim’s status can be fairly implied from the information. An information that alleges assault can be fairly
construed as also alleging the mental element of intent or knowledge. Hopper, 118 Wn.2d at 158-59. When the crime is
defined by an act and result, as in this case, the mental element relates to the result as well as the act. Here, the mental
element (knowledge) relates to both the act (assault) and the result (assault of a police officer). Moreover, the charge
specifically refers to the victim’s status in three separate places and states the victim was “a law enforcement officer who
was performing official duties at the time of the assault.” Clerk’s Papers at 15. It can be fairly implied from the
references to the victim as a police officer and the use of the term assault that knowledge of the victim’s status is an
element of the crime. Under the liberal construction, Mr. Tunney was given sufficient notice of the charge.
 State v. Hull, 83 Wn.App. 786, 800, 924 P.2d 375 (Div. 3 1996), review denied, 131 Wn.2d 1016, 936
P.2d 416 (1997) (state amended after resting to allege a statutory element, Held: per se reversible to allow
state after resting to amend to add an uncharged element, dismissed without prejudice) —
…The Pelkey court articulated a bright-line rule: “A criminal charge may not be amended after the State has rested its case
in chief unless the amendment is to a lesser degree of the same charge or a lesser included offense.” Id. at 491. An
amendment under these circumstances is reversible error per se, and the defense is not required to show prejudice. State v.
Markle, 118 Wn.2d 424, 437, 823 P.2d 1101 (1992); cf. State v. Schaffer, 120 Wn.2d 616, 621, 845 P.2d 281 (1993)
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(distinguishing between mid-trial amendments before and after the close of the State’s case in chief).
The State argues the bright-line Pelkey rule should not apply in this case, because the final amendment of the information
did not allege a new and different crime, but merely added the word “required,” which had been omitted inadvertently in
the earlier informations.
The Supreme Court rejected this argument in State v. Vangerpen, 125 Wn.2d 782, 888 P.2d 1177 (1995), in which an
information purporting to allege attempted first-degree murder inadvertently omitted the statutory element of
premeditation.
 State v. Williamson, 84 Wn.App. 37, 924 P.2d 960 (Div. 2 1996) (Obstructing a public servant by
hinder, delay, obstruct charged for defendant’s statement that he was Christopher Columbus, Held:
evidence did not prove conduct of hinder, delay or obstruct, but uncharged alternative means of false
statement, reversed even under Kjorsvik liberal construction, and dismissed without prejudice).
 State v. Chaten, 84 Wn.App. 85, 925 P.2d 631 (Div. 1 1996) (defendant moved to dismiss 2° assault
charge after state rested, claiming necessary element of intent not included in information; Held:
Vangerpen pre-verdict strict construction rule applies, and even though 2° assault has a necessary element
of intent, the term “assault” is commonly understood as an intentional act, so conviction affirmed).
 State v. Ralph, 85 Wn.App. 82, 930 P.2d 1235 (Div. 3 1997) (defendant moved to dismiss theft of a
firearm charge after both sides had rested challenging the sufficiency of the charging document; Held:
Vangerpen pre-verdict strict construction rule is controlling and information strictly construed, information
alleging defendant did “steal” firearms was inadequate to set forth essential elements of (1) ownership by
someone other than the defendant and (2) an intent to deprive, conviction reversed and dismissed without
prejudice to refile).
 State v. Bandura, 85 Wn.App. 87, 94-97, 931 P.2d 174, review denied, 132 Wn.2d 1004, 939 P.2d 215
(Div. 2 1997) (defendant asserted that he had a right to be not be tried on lesser included offenses until he
knowingly and voluntarily consented on the record, and that since he did not waive this right on the record,
he received ineffective assistance of counsel when his attorney submitted lesser included offense
instructions; Held: a defendant has no constitutional right to be tried only for the specific offense charged
since he has notice not only of the specific offense, but of any lesser included offenses) —
…The constitution does not support Bandura’s premise. Although an accused has a constitutional right to notice of the
crime with which he or she is charged, this right does not include a right to be tried for only the specific crime charged, or,
concomitantly, a right not to be tried for a lesser included offense. Because a defendant is deemed to have notice not only
of the specific crime charged, but also of any lesser included offenses, the right to notice is only a right to be tried on a
charge “contained in” the indictment or information. It precludes the State from charging one offense and then convicting
“of a separate and distinct or a nonincluded offense.” It does not, however, preclude the State from charging one offense
and then convicting of a lesser included offense.
Additionally, history and the case law refute Bandura’s premise. “At common law the jury was permitted to find the
defendant guilty of any lesser offense necessarily included in the offense charged.” The purpose was to aid the prosecution
when its proof failed to establish some element of the specific crime charged. Congress codified the common law by statute
in 1872, and by court rule in 1944. Washington Territory codified the common law in 1854 and 1881, and Washington
State codified it again, at least partially, in 1909. Today, as a general rule, a court can give an otherwise appropriate lesser
included offense instruction on request of either the state or the accused, or even on the court’s own initiative. Clearly, this
history is inconsistent with the accused’s having a right to be tried only on the specific crime charged, or, conversely, a
right not to be tried on a lesser included offense. We conclude that Bandura’s premise is false, and that nothing in the
present record indicates ineffective assistance of counsel.
 State v. Medlock, 86 Wn.App. 89, 935 P.2d 693, review denied, 133 Wn.2d 1012, 946 P.2d 402 (Div. 3
1997) (defendant moved prior to verdict to dismiss information charging 1° felony murder with robbery as
the felony, or in the alternative 2° felony murder, with assault as the felony, claiming that the information
was defective since it did not list the elements of the predicate felonies; Held: elements of underlying
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felonies are not elements of the crime of felony murder, conviction affirmed.) —
…When an information is challenged pretrial it is strictly construed. State v. Johnson, 119 Wn.2d 143, 150, 829 P.2d 1078
(1992). An information is insufficient when it does not set forth all the necessary elements of a charge. Id. In Washington,
the elements of the underlying felony are not elements of the crime of felony murder. Although the underlying crime itself
is an element in felony murder, the defendant is not actually charged with that crime. The predicate felony is a substitute
for the mental state which the prosecution would otherwise be obligated to establish. The information did not have to set
forth the elements of either of the predicate felonies to be sufficient. Thus, the court did not err in denying the motion to
dismiss.
 State v. Moavenzadeh, 135 Wn.2d 359, 956 P.2d 1097 (1998) (Ten of 18 possession of stolen property,
theft and conspiracy convictions reversed; Held: possession of stolen property includes nonstatutory
element of knowledge property is stolen, allegation of theft in second, without any mention of value of
property stolen, is insufficient, and conspiracy charge requires allegation of an agreement to commit a
crime and the taking of a substantial step towards the completion of that agreement).
 State v. Shabel, 95 Wn.App. 469, 976 P.2d 153, review denied, 139 Wn.2d 1006, 989 P.2d 1143 (Div.
1 1999) (Crediford’s “implied element” of drinking after driving in DUI prosecution does not need to be
included in the charging document where the charging document included all three statutory alternative
means and substantial evidence supports a conviction under non-BAC means.) [Note: Shabel relies on
Crediford as interpreted by Seattle v. Norby, which was overruled in State v. Robbins, 138 Wn.2d 486, 980
P.2d 725 (1999). Given Robbins drinking after driving analogy to self defense (which does not need to be
pled in a charging document), it is unlikely an appellate court will find that drinking after driving must be
included in a DUI charging document.]
 State v. Johnstone, 96 Wn.App. 839, 982 P.2d 119 (Div. 2 1999) (Intentional interference with owner’s
control, RCW 9.05.070, conviction reversed; Held: strict construction since challenge made before trial,
and charges dismissed without prejudice because two essential elements of crime omitted in charging
document).
 State v. Ibsen, 98 Wn.App. 214, 989 P.29 1184 (Div. 2 1999) (Felony bail jumping. Charging
document must allege underlying offense which sets the penalty under RCW 9A.76.170(2) since
underlying offense is an “element” of the bail jumping charge. Conviction reversed and dismissed without
prejudice.)
 State v. Phillips, 98 Wn.App. 936, 991 P.2d 1195 (Div. 2 2000) (Challenge to charging document in
first degree robbery case (which failed to allege that defendant used force to retain the property and that the
property belonged to someone other than the defendant) made after State rested. Held: challenge to
charging document after State rests (when it is precluded from amending the charging document other
than to a lesser degree or offense) results in analysis under the “after verdict” standard which applies a
liberal standard of review, Kjorsvik, rather than the strict construction standard of Vangerpen wherein
objection is made “at or before trial.” Conviction affirmed.)
 State v. Taylor, 140 Wn.2d 229, 996 P.2d 571 (2000) (Fourth degree assault. Charging document
lacked an allegation of the element of “intent.” Defense moved to dismiss prior to jury selection. Under
strict construction of Vangerpen, the word “assault” includes intent. Conviction affirmed 5-4 since charging
document not constitutionally defective.)

State v. McCarty, 140 Wn.2d 420, 998 P.2d 296 (2000) (Conspiracy to deliver a controlled
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substance under RCW 69.50.407. The information did not allege involvement of a person outside those in
agreement to deliver drugs. Conviction reversed in a 5-4 decision.) —
Because the information, liberally construed and subject to the Kjorsvik two-prong test, fails on its face to set forth the
essential common law element of involvement of a third person outside the agreement to deliver drugs, we presume
prejudice and reverse the decision of the Court of Appeals. McCarty’s conviction is thus dismissed without prejudice to
subsequent prosecution based upon a new information.
Talmadge, J., Dissent. A sporting theory of justice should not be the basis for our criminal jurisprudence. [FN 4] If we are
to apply our law in a commonsense fashion, without divorcing it from reality, we must keep in mind the salutary function
of a charging document, and not confuse it with a precisely crafted jury instruction. I would affirm the jury’s conviction of
McCarty.
[FN 4] At oral argument, in answer to the question whether McCarty should have objected to the allegedly defective
charge, counsel candidly answered it would not be in the best interests of a defendant to make such an objection. To
paraphrase counsel’s remarks: were a defendant to object, the State would simply amend the information to cure the defect.
Curing the defect would deprive the defendant of an appealable issue, i.e., the defective information. We should not
countenance and reward such cynical gaming of our criminal justice system by creating hypertechnical loopholes.
 State v. Tresenriter, 101 Wn.App. 486, 4 P.3d 145, 14 P.3d 788 (Div. 2 2000), review denied, 143
Wn.2d 1010, 21 P.3d 292 (2001) (State alleged only one alternative means to commit burglary in
information, crime against person, but obtained conviction based on crime against property. Burglary
conviction dismissed without prejudice. Additionally, the term “theft” includes the missing elements of
taking property of another with intent to deprive.)
 State v. Gill, 103 Wn.App. 435, 13 P.3d 646 (Div. 2 2000) (Harassment conviction reversed and
dismissed without prejudice due to lack of essential elements in charging document of “without lawful
authority” and “knowingly.”)
 State v. Sutherland, 104 Wn.App. 122, 15 P.3d 1051 (Div. 2 2001) (Felony hit and run conviction
reversed due to failure of charging document to include “knowledge” that defendant was aware he was in
accident, and case dismissed with prejudice since the statute of limitations has run.)
 State v. Krajeski, 104 Wn.App. 377, 16 P.3d 69, review denied, 144 Wn.2d 1002, 29 P.3d 718 (Div. 2
2001) (Unlawful possession of firearm conviction affirmed even though “knowledge” element omitted
from charging document because the phrase “unlawfully and feloniously” adequately apprised defendant he
was charged with knowing possession of the firearm.)
 State v. Grant, 104 Wn.App. 715, 17 P.3d 674 (Div. 3 2001) (DUI citation reading “Driving While
Intoxicated” conviction affirmed. The state need not charge each alternative means by which one might
commit an offense so long as the charging document provides adequate notice of the elements of the
offense. The fact that the state obtained the DUI conviction under non-charged alternative means is
irrelevant to the analysis.)
 State v. Clowes, 104 Wn.App. 935, 18 P.3d 596 (Div. 2 2001) (Interfering with reporting domestic
violence conviction dismissed without prejudice because the charging document did not allege the
underlying domestic violence crime committed or the name of the victim who was prevented from
contacting 911.)
 State v. Haberman, 105 Wn.App. 926, 22 P.3d 264 (Div. 2 2001) (Malicious harassment conviction
dismissed without prejudice because the charging document used elements from an older version of the
statute, and failed to allege new elements added to the charge under the newer statute.)

State v. Khlee, 106 Wn.App. 21, 22 P.3d 1264 (Div. 2 2001) (Unlawful possession of firearm
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convictim reversed since knowledge element missing from charging document, and because defendant
timely objected strict construction analysis used).
 State v. Goodman, 108 Wn.App. 355, 30 P.3d 516 (Div. 2 2001), review denied, 145 Wn.2d 1036, 43
P.3d 20 (2002) (Sentence enhancement domestic violence allegation need not be alleged as an “element”
in charging document under Leach/Kjorsvik analysis).
[Note. But all sentence enhancements must be pled and proven before the court may impose the
enhancement penalty. See 3.9 Case Law–Sengence Enhancements–Historial Facts vs. Facts Arising
From Incident, infra.]
 State v. Cuble, 109 Wn.App. 362, 35 P.3d 404 (Div. 2 2001) (Unlawful possession of firearm. Terms
“unlawfully and feloniously” sufficient to confirm knowledge element when charging document first
challenged on appeal, but conviction reversed because “to convict” instruction lacked knowledge element).
 State v. Mora, 110 Wn.App. 850, 43 P.3d 38, review denied, 147 Wn.2d 1021, 60 P.3d 92 (Div. 3
2002) (“Because any distinction between criminal accessories and principals has long been abrogated in
Washington, it is not necessary to differentiate between them in charging.”)
 State v. Greathouse, 113 Wn.App. 889, 56 P.3d 569 (Div. 1 2002), review denied, 149 Wn.2d 1014, 69
P.3d 875 (Prosecution not required to identify name of theft victim in charging document.)
 State v. Borrero, 147 Wn.2d 353, 58 P.3d 245 (2002) (Attempt conveys “substantial step”, which
has the same meaning and import as the word “attempt”.)
 State v. Ward, 148 Wn.2d 803, 64 P.3d 640 (2003) (In felony violation of no contact order case, the
phrase “does not amount to assault in the first or second degree” was not essential element of offense.
Charging document lacking such language is sufficient.)
 State v. Marcum, 116 Wn.App. 526, 66 P.3d 690 (Div. 3 2003) (Failure to include knowledge, as an
essential element of unlawful possession of firearm, rendered information fatally defective. Reversed.)
 State v. Spiers, 119 Wn.App. 85, 79 P.3d 30 (Div. 2 2003) (Bail jumping information sufficient,
insasmuch as it informed defendant of all the elements of the crime, including the penalty that he faced; the
information expressly stated that defendant failed to appear after being charged with a class B or C felony,
which corresponded to a class C felony bai jumping.)
 State v. Guzman, 119 Wn.App. 176, 79 P.3d 990 (Div. 3 2003), review denied, 151 Wn.2d 1036, 95
P.3d 758 (Third degree rape information insufficient because it did not inform defendantt of the element
requiring proof that the victim expressed her lack of consent by actual words or conduct.)
 State v. Holt, 119 Wn.App. 712, 82 P.3d 688 (Div. 2 2004) (State concedes second degree criminal
mistreatment convictions must be dismissed because the charging document omitted “recklessly,” the
mental state for the crime.)
 State v. Goodman, 150 Wn.2d 774, 83 P.3d 410 (2004) (Charging defendant with possession of
“meth” rather than “methamphetamine” was sufficient to meet requirement under Apprendi that specific
drug must be alleged where it aggravates the maximum sentence.)
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 State v. Downing, 122 Wn.App. 125, 93 P.3d 900 (Div. 2 2004) (In stipulated bench trial, just before
court found defendant guilty of bail jumping State moved to amend information to correct incident date.
Conviction affirmed.)
 State v. McGary, 122 Wn.App. 308, 93 P.3d 941 (Div. 2 2004) (Criminal mistreatment. Charging
document defective because state required to prove omitted charging language that defendant held a basic
necessity of life from her children. Dismissed without prejudice.)
 State v. Leyda, 122 Wn.App. 633, 94 P.3d 397 (Div. 1 2004), review granted, ___ Wn.2d ___, 110
P.3d 755 (Mar. 29, 2005) (Failure to include property value in charging document for identity theft and
third degree theft did not render conviction defective.) —
To be constitutionally adequate, both charging documents and jury instructions must include all essential elements of the
crimes charged. [FN12] "An essential element is one whose specification is necessary to establish the very illegality of the
behavior charged." [FN13] Leyda argues the charging document and jury instructions were constitutionally defective
because they lacked what he contends is an essential element of second degree identity theft and third degree theft: the
value of the property unlawfully obtained. On those counts, the State alleged no dollar value (the State alleged a value for
goods obtained only for the count of theft in the second degree). The question before us, therefore, is whether property
value is an essential element of the crimes of second degree identity theft and third degree theft. It is not. …
Value is not an essential element unless there is a minimum threshold value that must be proven to establish the crime.
[FN14] A person commits identity theft in the second degree when "the accused ... uses the victim's means of identification
or financial information and obtains an aggregate total of credit, money, goods, services, or anything else of value that is
less than one thousand five hundred dollars in value, or when no credit, money, goods, services, or anything of value is
obtained." [FN15] A person commits third degree theft when "he or she commits theft of property or *640 services which
... does not exceed two hundred and fifty dollars in value." [FN16] The references to value in each of these statutes
establishes a ceiling above which the offense is elevated to a higher degree, not a floor that must exist to support the charge
or conviction. Thus, value is not an essential element of either second degree identity theft or third degree theft, and need
not be alleged in the charging document or included in jury instructions to convict a defendant of the crimes. [FN17]
FN14. State v. Rogers, 30 Wash.App. 653, 655, 638 P.2d 89 (1981).
FN15. RCW 9.35.020(2)(b).
FN16. RCW 9A.56.050(1).
FN17. Leyda contends this conclusion is inconsistent with our supreme court's decision in State v.
Moavenzadeh, 135 Wash.2d 359, 956 P.2d 1097 (1998). There, the State charged Moavenzadeh with six counts
of "Theft in the Second [or Third] Degree," without alleging a value element for any of the charges. Id. at 361,
956 P.2d 1097. There was no way for Moavenzadeh to distinguish between the two crimes with which he was
charged. The court found the charges constitutionally defective because "the property value elements of these
crimes do not appear in any form in the information." Id. at 364, 956 P.2d 1097. That case is factually
distinguishable. Leyda was charged with second and third degree theft in separate counts; the State alleged the
required value element in the second degree theft charge. Leyda was thus on notice that he was accused of
second degree theft for wrongfully obtaining property belonging to Bon Marche and "that the value of such
property did exceed $250." Clerk's Papers at 8. This distinguished that count from the lesser charges of third
degree theft. A person of common understanding would comprehend that the lesser theft charge concerned
value that did not exceed $250. See RCW 10.37.050(6).
 Seattle v. Termain, 124 Wn.App. 798, 103 P.3d 209 (Div. 1 2004) (Violation of Domestic Violence
Order. Held that charging document must identify order allegedly violated. Conviction reversed.) —
The charging document alleged two counts using identical language with the exception of handwritten arrows and dates of
"6/11" printed above Count I and "6/16" above Count II. The language of the charging document is as follows:
Between June 11, 2002 and June 16, 2002, in the City of Seattle, King County, Washington, the above-named
defendant did commit the following offense(s):
Count 1 [or Count 2] Commit the crime of VIOLATION OF A DOMESTIC VIOLENCE ORDER by
knowingly violating a restraint provision, a provision excluding him or her from a residence, workplace, school
or daycare or a provision prohibiting him or her from knowingly coming within or knowingly remaining within
a specified distance of a location of an order granted under Seattle Municipal Code Chapter 12A.06 by Seattle
Municipal Court or of an order granted under Revised Code of Washington Chapter 10.99, Chapter 26.09,
Chapter 26.10, Chapter 26.26, Chapter 26.50, Chapter 74.34 or an equivalent ordinance by a court of competent
jurisdiction or knowingly violating a provision of a foreign protection order specifically indicating that a
violation will be a crime issued by a court having jurisdiction over him or her and the person protected by the
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order and the matter under the law of the state, territory, possession, tribe or United States military tribunal,
Contrary to Seattle Municipal Code Section(s): 12A.06.180-A …
It is true that the cases cited by the City hold that the victim's name is not an essential element of a crime. [FN19] Those
cases hold that the victim's identity is not an essential element of the crimes of assault, second degree murder, or accepting
the earnings of a common prostitute. But those crimes involve an act involving another person, but not a specific person as
does the violation of a nocontact order. The City is correct that criminal statutes which protect a particular class of persons
do not require that the particular victim be named. But, in contrast, the violation of a no-contact order is only committed by
contact with a particular person or location. And while we agree that the name of the victim may not be necessary in the
information, identification of the specific no-contact order, the issuance date from a specific court, the name of the
protected person, or sufficient other facts must be included in some manner.
The charging document here is awkwardly worded and vague. Frankly, it is gobbledygook. It charges the language of the
statute but it does not recite the specific statute pursuant to which the underlying order was issued, the number of the order,
the date of issuance, or any underlying facts or the name of the protected person. There are many simple ways the City
could have included bare facts in the charging document so that Termain could fairly imply what actual conduct was being
charged. To fail to do so makes Termain guess at the crime alleged to have committed. The City should change its ways of
charging these crimes.
 State v. Tandecki, ___ Wn.2d ___, 109 P.3d 398 (Mar. 31, 2005) (Stopping “immediately” is an
element of felony elude. Affirmed since issue raised for first time on appeal.)
Case Law — Vacation of Invalid No Contact Order Prior to Charging Decision
 Tacoma v. Cornell, 116 Wn.App. 165, 64 P.3d 674 (Div. 2 2003) (Temporary order of protection
entered. Court thereafter determined that petition for order lacked statutory prerequisites for order, and
vacated order. City then filed criminal charge for violation of order after its entry but before vacation. Held
that charges not permitted after order vacated.)
In summary, we agree with the trial court's rationale: the City had no underlying basis to charge Cornell. The City may
charge a person for violating an order during the time the order is valid and in effect. But the City may not charge a person
for violating an order after the order has been vacated, even if the alleged violation occurred while the order was in effect.
In other words, the City might have prevailed had it charged Cornell for violating the order before it was vacated. [FN8]
FN8. Our resolution does not mean that Cornell is without fault. We stress that court orders must be obeyed,
even if they are later deemed to be invalid. But on balance here, the City should not have filed the charge.
[Note. This case does not hold that an order rescinded by a court at a victim’s request prohibits prosecution
for a violation of the order that occurred prior to rescission. Cornell holds that charges cannot be filed after
an invalidly entered order is vacated. This is a very narrow holding.]
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Standard 3-3.5 Relations with Grand Jury
(a) Where the prosecutor is authorized to act as legal advisor to the grand jury, the prosecutor may appropriately explain
the law and express an opinion on the legal significance of the evidence but should give due deference to its status as an
independent legal body.
(b) The prosecutor should not make statements or arguments in an effort to influence grand jury action in a manner which
would be impermissible at trial before a petit jury.
(c) The prosecutor's communications and presentations to the grand jury should be on the record.
Excerpt from Commentary to ABA Standard
“ … [A] prosecutor must not take advantage of his or her role as the ex parte representative of the state before the grand
jury to unduly or unfairly influence it in voting on charges brought before it.…”
Seattle University Law Review Article
AARON M. CLEMENS, MISUSE OF THE GRAND JURY: FORCING A PUTATIVE DEFENDANT TO APPEAR AND
PLEAD THE FIFTH AMENDMENT, Seattle University Law Review, Volume 28, Winter 2005, Number 2, at
379-401.
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Standard 3-3.6 Quality and Scope of Evidence Before Grand Jury
(a) A prosecutor should only make statements or arguments to the grand jury and only present evidence to the grand jury
which the prosecutor believes is appropriate or authorized under law for presentation to the grand jury. In appropriate
cases, the prosecutor may present witnesses to summarize admissible evidence available to the prosecutor which the
prosecutor believes he or she will be able to present at trial. The prosecutor should also inform the grand jurors that they
have the right to hear any available witnesses, including eyewitnesses.
(b) No prosecutor should knowingly fail to disclose to the grand jury evidence which tends to negate guilt or mitigate the
offense.
(c) A prosecutor should recommend that the grand jury not indict if he or she believes the evidence presented does not
warrant an indictment under governing law.
(d) If the prosecutor believes that a witness is a potential defendant, the prosecutor should not seek to compel the witness's
testimony before the grand jury without informing the witness that he or she may be charged and that the witness should
seek independent legal advice concerning his or her rights.
(e) The prosecutor should not compel the appearance of a witness before the grand jury whose activities are the subject of
the inquiry if the witness states in advance that if called he or she will exercise the constitutional privilege not to testify,
unless the prosecutor intends to judicially challenge the exercise of the privilege or to seek a grant of immunity according
to the law.
(f) A prosecutor in presenting a case to a grand jury should not intentionally interfere with the independence of the grand
jury, preempt a function of the grand jury, or abuse the processes of the grand jury.
(g) Unless the law of the jurisdiction so permits, a prosecutor should not use the grand jury in order to obtain tangible,
documentary or testimonial evidence to assist the prosecutor in preparation for trial of a defendant who has already been
charged by indictment or information.
(h) Unless the law of the jurisdiction so permits, a prosecutor should not use the grand jury for the purpose of aiding or
assisting in any administrative inquiry.
Excerpt from Commentary to ABA Standard
“Statements and Arguments to Grand Jury … Because it is the grand jury itself, not the prosecutor, who is to make the
decision whether or not to indict, prosecutors should inform the grand jurors of the existence of and their right to hear
additional available witnesses.”
“Disclosure of Evidence. Section (b) goes beyond the minimum requirements of constitutional law … by requiring
prosecutors to make timely disclosure to the grand jurors of the same evidence that must be disclosed to the defense,
namely, all evidence known to the prosecutor tending to negate guilt of the accused or to mitigate the offense …”
“Recommendation Not to Indict. Similarly, the prosecutor’s duty to seek justice obligates the prosecutor to recommend to
the grand jury that it not indict where the prosecutor believes the evidence would not warrant the initiation of criminal
charges in the absence of a grand jury.”
“Potential Defendants as Witnesses … [B]efore seeking to require the person’s testimony before a grand jury, the
prosecutor should advise such a person that he or she may be implicated and that independent legal advice should be
sought. Similarly, it would dilute and impinge upon the privilege against self-incrimination to require a potential defendant
to appear before a grand jury and there claim the privilege when the prosecutor has been assured in advance, preferably in
writing, that the witness would do so and where the prosecutor does not intend to challenge the assertion of the privilege.
Such a tactic is unfair in that the very exercise of the privilege may prejudice the witness in the eyes of the grand jury.”
“Defense Counsel As Witness … Subpoenas to such persons should only be issued when the prosecutor has a reasonable,
good faith belief that the information sought is not privileged. The prosecutor should be required to establish the nonprivileged nature of the information sought only in response to a properly filed motion to quash or an equivalent motion
based on an asserted privilege.”
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Standard 3-3.7 Quality and Scope of Evidence for Information
Where the prosecutor is empowered to charge by information, the prosecutor's decisions should be governed by the
principles embodied in Standards 3-3.6 and 3-3.9, where applicable.
Excerpt from Commentary to ABA Standard
“ … [A] prosecutor should not institute a criminal proceeding in the absence of probable cause, and no criminal case
should be instituted or permitted to continue ‘in the absence of sufficient admissible evidence to support a conviction.’”
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Standard 3-3.8 Discretion as to Noncriminal Disposition
(a) The prosecutor should consider in appropriate cases the availability of noncriminal disposition, formal or informal, in
deciding whether to press criminal charges which would otherwise be supported by probable cause; especially in the case
of a first offender, the nature of the offense may warrant noncriminal disposition.
(b) Prosecutors should be familiar with the resources of social agencies which can assist in the evaluation of cases for
diversion from the criminal process.
Excerpt from Commentary to ABA Standard
“The opportunity to dispose of a case that is otherwise supported by probable cause by resort to other corrective social
processes, before of after formal charge or indictment without pursuing the criminal process, should be given careful
consideration in appropriate situations. Indeed, it has long been the practice among many experienced prosecutors to defer
prosecution upon the fulfillment of certain conditions, such as a firm arraignment for the offender to seek psychiatric
assistance where a disturbed mental condition may have contributed to the aberrant behavior. Another technique of long
standing is for prosecutors to not prosecute an offender who has agreed to enter military service, who has obtained new
employment, or who has embarked in some other manner on what can broadly be considered a rehabilitative program.”
“…Prosecution, meanwhile, should be deferred or dismissed when a case is turned over to a probation or parole
department. It is hoped that a combination of jobs and counseling will give the charged person a stable base in the
community. Where diversion of the defendant is successful, the dismissal of charges or the suspension of sentence is
appropriate.”
Deferred Prosecution — RCW 10.05
RCW 10.05 authorizes a court to continue a non-felony case for 5 years upon defendant’s petition
under oath that the “wrongful conduct charged is the result of or caused by alcoholism, drug addiction, or
mental problems for which the person is in need of treatment and unless treated the probability of further
reoccurrence is great…” RCW 10.05.020(1). Upon successful completion of the two-year treatment
program, the court “shall” dismiss the charges pending against the defendant. RCW 10.05.120.

Abad v. Cozza, 128 Wn.2d 575, 587, 589, 911 P.2d 376 (1996) —
Deferred prosecution is a special preconviction sentencing alternative that is available to petitioners who acknowledge
their culpability and need for treatment. As a condition for the granting of a deferred prosecution, the petitioner must state
under oath the wrongful conduct charged took place and resulted from a condition amenable to treatment. The petitioner
acknowledges advisement of rights as an accused. The petitioner knowingly and voluntarily stipulates to the admissibility
of the facts in the police report, and acknowledges the report and sworn statement will be admitted in any postrevocation
trial or hearing and used to support a finding of guilty. Plainly, this means that the petitioner agrees to waive the right to
raise other defenses, to introduce other evidence, to question or call witnesses, and to a jury. This is the import of the
Legislature’s strong statutory waiver language and the abbreviated structure of the postrevocation trial.
The Legislature determined that deferred prosecution is a valuable preconviction sentencing alternative for people who
are culpable, but require treatment. RCW 10.05.020. But as an alternative to a formal trial, sentencing, and, in many
cases, incarceration, the Legislature has conditioned the grant of deferred prosecution to these persons upon a waiver of the
rights to a jury and to present evidence in a postrevocation trial if the deferred prosecution order is revoked because they
are unable or unwilling to carry out treatment or they commit a new crime. The Legislature may condition the privilege of
deferred prosecution on such a waiver so long as the petitioner is fully advised of the consequences of his or her
participation in the deferred prosecution program. The Spokane County District Court deferred prosecution form adopted
pursuant to local rule is consistent with the statute.
 State ex rel. Schillberg v. Cascade Dist. Court, 94 Wn.2d 772, 621 P.2d 115 (1980) (RCW 10.05.030
requires prosecutor’s consent as a precondition of entry into deferred prosecution; Held: provision
unconstitutional since power to continue arraignment and refer a person for diagnostic evaluation under
statute permitting deferral of prosecution for person whose wrongful conduct was result of or caused by
alcohol problems was essentially judicial, and (2) delegation of legislative authority to prosecutor by
requiring prosecutor’s consent to deferral of prosecution for person whose wrongful conduct was caused by
or result of alcohol problems was unconstitutional, in that delegation was not accompanied by any
standards to guide exercise of such authority.)
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 State v. Glasser, 37 Wn.App. 131, 678 P.2d 827, review denied, 102 Wn.2d 1008 (Div. 1 1984) (trial
court lacks authority to defer a prosecution after a defendant has been tried and convicted).
 State v. Hayes, 37 Wn.App. 786, 788, 683 P.2d 237, review denied, 102 Wn.2d 1008 (Div. 1 1984) (a
superior court lacks authority to defer a prosecution under RCW 10.05; “It is clear that the Legislature
intended that deferred prosecution be made available in misdemeanor cases only at the district court
level.”).
 State v. Kuhn, 74 Wn.App. 787, 875 P.2d 1225 (Div. 2 1994), review denied, 127 Wn.2d 1017, 904
P.2d 299 (1995) (“Subsequently convicted,” for purposes of statute requiring revocation of deferred
prosecution if defendant is subsequently convicted of similar offense while in deferred prosecution
program, means that defendant is adjudged guilty of subsequent similar offense, and does not require that
subsequent conviction be fully reviewed and upheld on appeal; Held: trial court must revoke a deferred
prosecution if the defendant is subsequently convicted of a similar offense).
 State v. Rushing, 77 Wn.App. 356, 890 P.2d 1077 (Div. 3 1995) (defendant is not denied equal
protection by prosecutor’s decision to file felony elude and DUI charges in superior court, thereby
precluding defendant from seeking deferred prosecution)
 State v. Higley, 78 Wn.App. 172, 186, 902 P.2d 659, review denied, 128 Wn.2d 1003, 907 P.2d 296
(Div. 2 1995) (trial court has authority under CrRLJ 8(a) to dismiss a deferred prosecution without
prejudice to the State filing vehicular assault charges) —
An order terminating deferred prosecution is different from an order dismissing without prejudice. An order terminating
deferred prosecution does not disturb the underlying charges and moves the case forward to trial or plea. An order of
dismissal without prejudice annuls the underlying charges and ends the case, subject to refiling.
A motion for an order terminating deferred prosecution is governed, at least in part, by RCW 10.05.090 and RCW
10.05.100. RCW 10.05.090 permits the court to terminate a defendant’s treatment plan if he or she fails or neglects to
perform it. RCW 10.05.100 requires the court to terminate a defendant’s treatment plan if he or she is convicted of a new
“similar offense”.
A motion for an order dismissing without prejudice is governed by CrRLJ 8.3(a). That rule provides:
The court may, in its discretion, upon motion of the prosecuting authority setting forth the reasons
therefor, dismiss a complaint or citation and notice.
Here, we are dealing with a motion to dismiss without prejudice. Thus, CrRLJ 8.3(a) applies. The State gave a valid
reason for dismissal when it showed that it was reasonably unaware of Dixon’s injuries when Higley was granted deferred
prosecution, and that based on new information it now wished to file a felony charge in Superior Court.
 State v. Hahn, 83 Wn.App. 825, 924 P.2d 392 (Div. 2 1996), review denied, 131 Wn.2d 1020, 937 P.2d
1103 (1997) (RCW 10.05.010 providing for deferred prosecution program for those charged with
misdemeanor or gross misdemeanor limits eligibility for deferred prosecution to one time in five-year
period, and treats voluntary withdrawals from program no differently than involuntary terminations
therefrom).
 State v. Bays, 90 Wn.App. 731, 954 P.2d 301 (Div. 2 1998) (Five year period is measured from the
date the court granted the first deferred prosecution.) (Note. This case was essentially abrogated by January
1, 1999 amendments to statute permitting only one deferred prosecution in a lifetime.)
 Alwood v. Aukeen District Court, 94 Wn.App. 396, 973 P.2d 12 (Div. 1 1999) (Court granted, and then
sua sponte changed mind after determining that defendant was not amenable to treatment given his history.
Trial court’s vacation of deferred order affirmed.)
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 Walla Walla v. Topel, 104 Wn.App. 816, 17 P.3d 1244 (Div. 3 2001) (One deferred prosecution in a
lifetime statute does not violate ex post facto.)
 In re Garcia, 106 Wn.App. 625, 24 P.3d 1091, 33 P.3d 750 (Div. 1 2001) (Prison inmate filed PRP
alleging that DOC mandated AA attendance violated First Amendment Establishment of Religion
Prohibition. Petition denied because Garcia had choice over type of self-help class to attend in order to
satisfy his chemical dependency treatment program requirement, specifically non-religious self-help
classes. AA 12-step program held clearly premised on idea of monotheistic God, and thus religious.)
 State v. Sell, 110 Wn.App. 741, 43 P.3d 1246, review denied, 147 Wn.2d 1016, 56 P.3d 991 (Div. 1
2002) (One deferred prosecution per lifetime does not violate ex post facto, due process, or equal
protection.)
Compromise of Misdemeanors — RCW 10.22
 RCW 10.22.010 authorizes the court to dismiss certain types of non-felony cases where the person
injured by the act constituting the offense has a civil remedy except when the offense was committed (1) by
or upon an officer while in the execution of the duties of his or her office; (2) riotously; (3) with an intent to
commit a felony, or (4) by one family or household member against another as defined in RCW
10.99.020(1) and was a crime of domestic violence as defined in RCW 10.99.020(2).
The policy of the compromise of misdemeanor statute is to avoid prosecution of minor offenders and to provide
restitution to crime victims, as well as favoring the vesting of discretion in the trial courts to compromise minor offenses.
The vesting of a discretionary power in the district courts operates as a check and balance against the much greater
discretionary power of the police to decide when to arrest and of the prosecutor when to prosecute. A trial court’s impartial
judgment in determining whether to dismiss the charge when based upon restitution brings to bear many factors important
in the furtherance of justice which are not within the purview of the police and prosecutor.
Ferguson, Wash.Crim.Prac. and Proc., § 702, at 122-23.
 Fitch v. Roxbury District Court, 29 Wn.App. 591, 629 P.2d 1341, review denied, 96 Wn.2d 1004 (Div.
1 1981) (RCW 10.22 is appropriate for hit and run charge because RCW 10.22 should be read broadly
when by the crime’s “very nature there is an overlapping of the civil remedy and the public remedy by way
of prosecution … Here the criminal offense requires that the defendant be involved in an accident causing
injury to the victim’s person or property … The civil cause of action shares this common element.”);
Contra Walla Walla v. Ashby, 90 Wn.App. 560, 952 P.2d 201 (Div. 3 1998) (court lacks power to order
restitution in hit and run case absent agreement by defendant because there is not a sufficient nexus
between the frim committed (failing to stay and give information) and the result that failing to stay would
lead to restitution for damaging), abrogated on other grounds by State v. Enstone, 137 Wn.2d 675, 974
P.2d 828 (1999) (foreseeability not a requirement for restitution).
 Seattle v. Stokes, 42 Wn.App. 498, 712 P.2d 853 (Div. 1 1986) (RCW 10.22 is not appropriate for
reckless driving charges. Compromise of misdemeanor should be permitted only for traffic offenses whose
elements include injury to persons or property, holding that Fitch v. Roxbury District Court should be read
narrowly. Reckless driving is aimed at preventing the danger of accidents, while hit and run is aimed at
protecting accident victims. Because injury is not a necessary element of reckless driving, a compromise
will inequitably be available only when an accident occurs, which is not in keeping with legislative intent.)
 State v. Britton, 84 Wn.App. 146, 925 P.2d 1295 (Div. 1 1996) (Third degree theft. RCW 10.22 applies
to gross misdemeanor as well as misdemeanor offenses.)
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 State v. Ford, 99 Wn.App. 682, 995 P.2d 93 (Div. 1 2000) (RCW 10.22 does not apply to juvenile
offender proceedings, including diversion. RCW 13.04.450.)
 State v. O’Connor, 119 Wn.App. 530, 81 P.3d 161 (Div. 1 2003), review granted, 152 Wn.2d 1006, 99
P.3d 896 (2004) (Second degree malicious mischief, DV. Defendant unsuccessfully sought to exclude
compromise evidence that defendant offered to pay tire-slashing victim $800 to assist her in replacing tires.
Held that except for misdemeanor charges subject to compromise, ER 408 that bars admission of evidence
of civil compromise is not applicable in criminal trials arising from same conduct, and evidentiary rule did
not apply to prosecution for felony domestic violence. RCW 10.22 and ER 408.)
Kitsap Prosecutor’s Office — Sample Form — Pre-Trial Diversion Agreement
The Kitsap Prosecutor’s Office offers a pre-trial diversion agreement in some misdemeanor and gross
misdemeanor cases when evidentiary problems make conviction on the original charge doubtful and/or a
request from the victim is made which is not the result of pressure from the defendant and the defendant
has minimal prior criminal activity.
These agreements have been especially useful in “encouraging” perpetrators in domestic violence
cases to agree to be supervised by our probation department and to commit to the successful completion of
alcohol/drug treatment and/or domestic violence perpetrator’s treatment when the victim has recanted or is
otherwise unavailable, evidentiary problems exist, and/or the family intends on remaining together.
One of two options is available depending on the type of crime diverted — the charges are reduced at
the end of the diversion period (typically DUI cases reduced to first degree negligent driving), or the
charges are dismissed at the end of the diversion period (most crimes).
Many prosecutors’ offices use continuances for dismissal, but have difficulty if the defendant breaches
the agreement since the evidentiary problems still exist or have gotten worse over time. Our PDA avoids
this problem by requiring the defendant to waive most constitutional rights, and upon a breach the case is
handled similarly to revoked deferred prosecutions under RCW 10.05.
Below is the Kitsap County Pre-Trial Diversion Agreement form (updated April 8, 2005)–
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 IN THE KITSAP COUNTY DISTRICT COURT
 IN THE BAINBRIDGE ISLAND MUNICIPAL COURT
 IN THE BREMERTON MUNICIPAL COURT
 IN THE PORT ORCHARD MUNICIPAL COURT
 IN THE POULSBO MUNICIPAL COURT
 STATE OF WASHINGTON,
 CITY OF BAINBRIDGE ISLAND,
 CITY OF BREMERTON,
 CITY OF PORT ORCHARD,
 CITY OF POULSBO,
Plaintiff,
v.
_____________________________________,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
NO.
PRE-TRIAL DIVERSION AGREEMENT, WAIVERS,
AND STIPULATED ORDER OF CONTINUANCE
Pre-Trial Diversion Agreement
COMES NOW the Prosecution, by and through its attorney of record below-named, and the Defendant,
by and through his or her attorney of record below-named, and hereby enter the following Pre-Trial
Diversion Agreement (hereafter “Agreement”)–
Defendant’s Waiver of Rights And Agreement
1. Waiver of Speedy Trial (CrRLJ 3.3(c)(2)(i)). The Defendant understands that he or she has the right
to be tried within 90 days following the “commencement date” as defined in CrRLJ 3.3(e), and that if the
Defendant does not receive a trial within this time period the case may be dismissed with prejudice unless
the Defendant waives this right.
The Defendant understands that he or she has a right to trial by _____________________________ (date).
The Defendant gives up that right and agrees to a new commencement date of December 31, 2015.
As a result of this waiver, the last allowable date for trial will be March 31, 2016.
2. Waiver of Jury Trial (CrRLJ 6.1.1(a)). The Defendant understands that he or she has the right to
trial by jury unless he or she waives the right to a jury trial. The Defendant hereby waives his or her jury
trial right and requests that his or her guilt or innocence be decided by a judge.
3.  Waiver of Right to Counsel (This waiver applies only if the box at the beginning of this paragraph
is checked and the Defendant signs his or her name below). The Defendant understands the he or she has
the right to be represented by a lawyer, and that he or she may talk to a lawyer before signing this
document and/or any Addendum to this document. The Defendant knows that if he or she cannot afford a
lawyer the Defendant could ask the Court to appoint a lawyer to represent the Defendant.
Being aware of the right to be represented by a lawyer, the Defendant hereby waives that right at this
time. The waiver is made freely, knowingly and voluntarily. The Defendant has no more questions to ask
about his or her right to be represented by a lawyer. The Defendant chooses to sign this document and/or
any Addendum to this document without legal representation.
____________________
DATE
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_________________________________________
DEFENDANT
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4. Waiver of Rights (CrRLJ 6.1.2(b)). The Defendant understands that he or she has the right to contest
and object to evidence presented against the Defendant. The Defendant gives up the right to contest and
object to any evidence presented against the Defendant as to the Defendant’s guilt or innocence regarding
the underlying charge(s) at any future hearings if the Defendant fails to comply with the conditions in this
Agreement. The Defendant also understands that he or she has the right to present evidence on the
Defendant’s own behalf. The Defendant gives up the right to present evidence on the Defendant’s own
behalf as to the Defendant’s guilt or innocence regarding the underlying charge(s). The Defendant
understands that evidence will be presented against the Defendant at a future hearing and the Defendant
understands that the Judge will read and review that evidence in determining the Defendant’s guilt or
innocence.
The Defendant understands that, by this process, he or she is giving up the constitutional right to a jury
trial, the right to hear and question witnesses, the right to call witnesses in his or her own behalf, the right
to testify or not to testify, the right to remain silent, the right to challenge the admissibility of statements the
Defendant has made (CrRLJ 3.5), the right to challenge physical, oral or identification evidence (CrRLJ
3.6), the right to assert husband-wife privileges (RCW 5.60.060), the right to assert a physician-patient
privilege (RCW 5.60.060), psychologist-client privilege (RCW 18.83.110), registered nurse privilege
(RCW 5.62.020), and counselor privilege (RCW 18.19.180).
The Defendant understands that the maximum sentence for the crime(s) charged herein of–
_______________________________ is [ 365] [ 90] days in jail and/or a [ $5,000] [ $1,000] fine,
_______________________________ is [ 365] [ 90] days in jail and/or a [ $5,000] [ $1,000] fine,
plus costs and assessments, and that the judge can impose any sentence up to the maximum, no matter what
the prosecuting authority or the defense recommends.
5. Consent for the Release of Confidential Information. The Defendant hereby consents to
communication between the Court, Probation Staff, and Kitsap County Prosecutor’s Office, and any health
care and/or treatment provider for evaluation(s) and/or treatment required in this Agreement. The purpose
for disclosure is to inform the criminal justice agencies listed above of the Defendant’s attendance, and
progress in treatment, and/or the Defendant’s compliance with Court Orders and/or conditions of probation.
The extent of information to be disclosed is the Defendant’s diagnosis, information about the Defendant’s
attendance, or lack of attendance, at treatment sessions, the Defendant’s cooperation with the treatment
program, prognosis, all medical records, including all clinical, and hospital records in full. This includes
but is not limited to diagnostic testing, laboratory tests, correspondence, and notes, or written documents of
any nature within the meaning of the Uniform Health Care Act.
The Defendant consents to the release of information regarding himself or herself which may be
protected by local, state, or federal laws which could pertain to testing, and/or treatment for HIV infection,
AIDS, sexually transmitted diseases, mental health problems, alcohol abuse, or drug abuse. The Defendant
understands that this consent will remain in effect, and cannot be revoked by the Defendant until this case
is completed. The Defendant understands that any disclosure made is bound by Part 2 of Title 42 of the
Code of Federal Regulations governing confidentiality of alcohol and drug abuse patient records, and that
recipients of this information may re-disclose it only in connection with their official duties.
6. Cooperation and Truthfulness. The Defendant agrees to fully cooperate and completely and
truthfully answer any and all questions from this Court, Probation Staff, and any health care and/or
treatment provider for evaluation(s) and/or treatment required in this Agreement.
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7. Defendant’s Promise to be Present in Court. The Defendant understands and agrees that he or she
shall be present in court at all future court hearings herein unless previously waived in writing by the judge.
8. Additional Conditions. The Defendant agrees to fully and completely satisfy all of the following
selected conditions–
 Criminal Law Violations. The Defendant shall have no criminal law violations. The Defendant agrees
that this Court may take action on the Prosecution’s motion alleging the Defendant’s violation of this
condition prior to any resolution of the alleged new criminal law violation. The Defendant specifically
agrees that a “conviction” for a criminal law violation occurring after the signing of this Agreement is
not a prerequisite to this Court taking action on the Prosecution’s motion to revoke this Agreement due
to the Defendant’s alleged violation of this condition. The Defendant further agrees that the
Defendant’s petition or otherwise request of any Washington court to grant the Defendant a deferred
prosecution pursuant to RCW 10.05 et seq. for any new criminal law violation occurring after the
signing of this Agreement shall be a violation of this condition.
 Address and Telephone Information. The Defendant agrees to immediately notify the Court in
person or in writing of any change of residence or mailing address and telephone number.
 Bench Warrant Costs. The Defendant shall pay any bench warrant costs imposed herein.
 Failure to File Proof of Compliance With the Court. The Defendant agrees that failure to file
written proof with the Court Clerk when required herein shall be a violation of this Agreement.
 DV Order(s) Prohibiting Contact. The Defendant agrees to strictly comply with all provisions of any
court order entered in this case or any other case prohibiting contact with the named victim(s) herein.
 Seized Property. The Defendant agrees as of today’s date to forfeit all property seized herein by law
enforcement.
 Drugs Prohibited. The Defendant shall not possess or consume any non-prescribed drugs.
 Court Costs. The Defendant shall pay court costs of [ $500] [ $750] [ $________] at $75 per
month by the 5th of each month beginning ___________________. Payments shall be made to–
 Kitsap County District Court, 614 Division Street, MS-25, Port Orchard, WA 98366
 Bainbridge Island Municipal Court, PO Box 151, Rolling Bay, WA 98061-0151
 Bremerton Municipal Court, 239 - 4th Street, Bremerton, WA 98337
 Port Orchard Municipal Court, 216 Prospect, Port Orchard, WA 98366
 Poulsbo Municipal Court, PO Box 98, Poulsbo, WA 98370-0098
Any amounts paid by check should include the Defendant’s full name and case number. Part or all of
the court costs may be converted to community service in accordance with court policy.
 Addendum. The Defendant agrees to fully comply with a separately executed document entitled
“Addendum to Pre-Trial Diversion Agreement” (hereafter “Addendum”) and further agrees that any
violation of the Addendum is also a violation of this Agreement. The parties agree that the Addendum
will not be filed with the Court unless the Prosecution files a written motion alleging a violation of the
Addendum.
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 Kitsap County District Court Probation Supervision. The Defendant agrees that compliance with
this Agreement shall be supervised by the Kitsap County District Court Probation Department. The
Defendant agrees to contact probation, 360-337-7010, within one judicial day of the signing of this
Agreement, bring a copy of this agreement to probation, make all appointments with probation, and
abide by all probation rules and regulations.
 Monitoring of Conditions by Prosecutor’s Office. The Defendant agrees that compliance with this
Agreement shall be monitored by the Prosecutor’s Office.
 Monitoring of Conditions by Municipal Court. The Defendant agrees that compliance with this
Agreement shall be monitored by the Municipal Court.
 Valid License and Insurance. The Defendant shall not drive a motor vehicle without a valid driver’s
license and/or proof of insurance.
 DUI Victim’s Panel. The Defendant shall attend a DUI victim’s panel and within 90 days from
today’s date file written proof thereof with the Court Clerk.
 Chemical Dependency Treatment. The Defendant shall obtain a chemical dependency evaluation
from a state-certified agency, and thereafter successfully comply with all treatment recommendations,
and within 90 days from today’s date file written proof thereof with the Court Clerk.
 Drinking and Driving. The Defendant shall not drive or be in actual physical control of a motor
vehicle while having an alcohol concentration of 0.03 or more within two hours after driving or being
in physical control. The Defendant shall not refuse to submit to a test of his/her breath or blood to
determine alcohol and/or drug concentration upon request of a law enforcement officer who has
reasonable grounds to believe that the Defendant was driving or in actual physical control of a motor
vehicle while under the influence of an intoxicating liquor and/or drugs.
 Alcohol Prohibited. The Defendant shall not possess or consume alcohol.
 Ignition Interlock Device. The Defendant shall not operate any vehicle that is not equipped with a
functioning ignition interlock alcohol device. This condition may be rescinded by this Court after one
(1) year from today’s date if the Defendant is in full compliance with this Agreement at that time.
 DV Perpetrator’s Program. The Defendant shall successfully complete a state-certified one year
Domestic Violence Perpetrator’s Treatment program (which includes the Men’s Ending Violence
program), and within one year from today’s date file written proof thereof with the Court Clerk.
 Firearm. The Defendant shall not possess or own any firearm.
 DV Parenting Class. The Defendant shall attend and successfully complete a parenting class for a
minimum 24 hours that includes discussion concerning the effects of domestic violence on children,
and within 90 days from today’s date file written proof thereof with the Court Clerk.
 Anger Management Course. The Defendant shall attend and successfully complete an anger
management course, and within 90 days from today’s date file written proof thereof with the Court
Clerk.
 Psycho-sexual Evaluation. The Defendant shall obtain a psycho-sexual evaluation from a statecertified agency, and thereafter successfully comply with all treatment recommendations, and within
90 days from today’s date file proof thereof with the Court Clerk.
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 No Contact [Non-DV Cases Only]. The Defendant shall not make any attempts (including but not
limited to directly or indirectly, in person, in writing, by telephone, or through other persons) to contact
the following– ______________________________________________________________________.
 Consumer Awareness Course. The Defendant shall attend and successfully complete a consumer
awareness course, and within 90 days from today’s date file written proof thereof with the Court Clerk.
 Driver’s Education Program. The Defendant shall attend and successfully complete a Washington
State Department of Licensing approved five (5) week Driver Training Course which shall include a
minimum thirty (30) hours of classroom instruction (including four hours behind the wheel), and
within 90 days from today’s date file written proof thereof with the Court Clerk.
 Restitution. The Defendant agrees to pay the following restitution directly to the name(s) and
address(es) in the amount(s) shown below. The Defendant further agrees that he or she shall file
written proof with the Court Clerk within 90 days from today’s date showing that all restitution has
been made in full.
Amount
$_________
Name
Address
Total
 __________________________________________________________________________________
9. Defendant’s Promise to Fully Satisfy Conditions. The Defendant understands and agrees that he or
she shall fully and completely satisfy all of the conditions of this Agreement, and that failure or neglect to
carry out and fulfill any term or condition of this Agreement shall constitute a violation of this Agreement.
The Defendant also understands and agrees that any allegation by the Prosecution that the Defendant
has violated this Agreement will result in a hearing by this Court to determine whether a violation has been
proven, and that the Prosecution will not be required to comply with its obligations in the section entitled
“Prosecution’s Agreement” until this Court has determined that the Defendant did not violate this
Agreement and that the Defendant is in full compliance with this Agreement.
 Prosecution’s Agreement to Dismiss the Charge(s)
If the Defendant successfully complies with the promises he or she has made herein, the Prosecution
agrees to move to dismiss with prejudice the charge(s) of ________________________________________
____________________________________________ at a hearing to be scheduled not before two years
following entry of this Agreement.
 Prosecution’s Agreement to Amend the Charge(s)
If the Defendant successfully complies with the promises he or she has made herein, the Prosecution
agrees to move to amend the charge(s) and the Defendant agrees to the Court’s entry of a guilty finding to
_________________ at a hearing to be scheduled not before two years following entry of this Agreement.
Upon the Defendant’s successful compliance with this Agreement and the Court’s entry of a guilty
finding to the amended charge(s) as previously discussed, the Prosecution will make the following
sentencing recommendation to the Judge–
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90 days in jail with 90 days suspended for two years
$1,000 fine with $1000 suspended
The Defendant shall have no violation of any criminal laws, and Probation shall be unsupervised.
The Judge does not have to follow anyone’s recommendation as to sentence. The Judge can give the
Defendant any sentence up to the maximum authorized by law no matter what the prosecuting authority or
anyone else recommends.
Procedure on Alleged Violation of Agreement
The Defendant and Prosecution agree that the prompt resolution of a party’s allegation of violation of
this Agreement by the other party is desirable. Accordingly, the parties request this Court to set a hearing
date within approximately 30 days of any party’s violation allegation so that this Court can promptly
determine whether a violation of this Agreement has occurred.
The parties further agree that any Prosecution motion to revoke this Agreement based upon an alleged
violation of this Agreement by the Defendant will be handled in accordance with the procedures set forth in
State v. Marino, 100 Wn.2d 719, 674 P.2d 171 (1984) and State v. Kessler, 75 Wn.App. 634, 879 P.2d 333
(1994).
DATED this __________ day of _________________________, __________.
_________________________________________
DEFENDANT
Defendant address: __________________________
Defendant phone: ___________________________
Defendant e-mail:___________________________
PRESENTED BY–
APPROVED FOR ENTRY–
_________________________________________
____________________, WSBA NO. __________
Deputy Prosecuting Attorney
_________________________________________
____________________, WSBA NO. __________
Attorney for Defendant
Acceptance of Waivers, PDA and Stipulated Order of Continuance
THIS MATTER having come on regularly before the undersigned Judge of the above-entitled Court by
agreement of the parties for entry of a Pre-Trial Diversion Agreement, Defendant’s waiver of rights and a
Stipulated Order of Continuance; the Court having considered this Agreement, motion and the files and
records herein, and being fully advised in the premises; now, therefore, it is hereby
ORDERED that probable cause exists to believe that the Defendant committed the offense(s) charged
herein. It is further
ORDERED that the Court finds that the above Pre-Trial Diversion Agreement, Defendant’s waiver of
rights and Stipulated Order of Continuance have been entered into freely, voluntarily and knowingly by all
parties hereto with full awareness and explanation of the possible legal consequences. It is further
ORDERED that the above-entitled matter shall be continued to a date set by separate order. The
Defendant shall appear as required by separate order.
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DONE IN OPEN COURT this __________ day of _________________________, __________.
_________________________________________
JUDGE
Pre-Trial Diversion Agreements — Judicial Ethics Advisory Opinion 04-05
Pre-trial diversion agreements underwent great scrutiny in response to Judicial Ethics Advisory
Committee Opinion 04-05 issued on August 16, 2004. The opinion can be found online at
<http://www.courts.wa.gov/programs_orgs/pos_ethics/?fa=pos_ethics.dispopin&mode=0405> (visited May
19, 2005), and says–
State of Washington
Ethics Advisory Committee
Opinion 04-05
STATE OF WASHINGTON
ETHICS ADVISORY COMMITTEE
OPINION 04-5
Question
May a judicial officer approve a Stipulated Order of Continuance (SOC) that requires the defendant
perform some treatment conditions and make a monetary “donation” to the city in return for the dismissal
of a criminal charge when the court does not collect the “donation”?
Does it matter if the only condition in the agreement is a monetary “donation” that the court does not
collect in exchange for a dismissal of the criminal charge?
May a judicial officer agree to continue a case where there is an agreement between the parties either to
dismiss the case or conduct a stipulated trial where the parties do not initially advise the court of the
specific terms of the agreement and the agreement includes a “donation” to the city?
May a judicial officer find that a defendant has violated the terms of an agreement by failing to pay a
“donation” where the defendant was financially able to pay?
Does it matter that the “donations” are not collected by the court but are placed in a fund administered by
the city for the benefit of particular programs?
Is there an ethical difference between approving these agreements in civil infraction cases versus criminal
cases?
The city prosecutors negotiate pre-trial diversion agreements to resolve criminal and civil cases that at
times include payments, usually to the city human services fund.
For cases involving domestic violence crimes, the prosecutors negotiate a stipulated order of continuance
(SOC). The negotiated agreement normally includes the prosecutors’ commitment to dismiss the case in
exchange for the defendant: (1) agreeing to a stipulated trial and waiving speedy trial rights; (2) completing
applicable treatment programs (i.e. DV victims panel, DV counseling, mental health treatment, and/or
alcohol treatment, etc); (3) payment of any restitution; and (4) payment to the city human services fund.
Some agreements could only require a “donation”. The terms are presented to the court for approval and an
order of the court is signed acknowledging the posture of the case. Probation usually monitors the
defendant’s compliance with the agreement and sets hearings for the prosecutors to review alleged
violations. The prosecutors ask the court to find a violation of the terms of the agreement and proceed to
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the stipulated trial if there has been noncompliance.
With non-DV cases such as Theft 3° and Assault 4°, the parties are entering a statement of defendant on
submittal or stipulation to facts that is accepted without finding but then set over for a time period to allow
the defendant to complete certain conditions that could include a “donation”.
For cases involving traffic infractions the prosecutors may agree to dismiss an infraction if the driver (1)
waives any objection to the infraction and (2) makes an agreed payment to the human services fund. If the
driver does not remit the payment, the prosecutors do not dismiss the case. The court places the case on a
summary calendar whereby the defendant’s driving abstract reflects the infraction and applicable penalties
are imposed.
Since 1999, the city has received funds from a community development block grant to fund a part-time DV
advocate in the prosecutor’s division. The city’s human services commission, which administers the grant
funds, notified the city that it would not recommend using the grant funds in 2004 to fund the part-time DV
advocate. Although the city has used these agreements in the past to fund some community services, it
would now like to partially fund the part-time DV advocate from human services funds received in
accordance with the prosecutors’ diversion agreements.
Answer
CJC Canon 2(A) provides in part that judges should respect and comply with the law and act in a manner
that promotes public confidence in the integrity and impartiality of the judiciary. CJC Canon 3(A) requires
judges to perform their duties of office impartially and diligently. RCW 3.62.090 provides that the public
safety and education assessment shall be assessed and collected in addition to any fines, forfeitures and
penalties. That statute also provides that the assessment may not be suspended or waived when a fine,
forfeiture or penalty is imposed.
The conduct of a judicial officer must promote the public confidence in the integrity and impartiality of the
judiciary. In weighing whether a judicial officer should approve agreements made between the city and
defendants in criminal and infraction cases, the judicial officer must consider the affect the agreement will
have on the integrity and impartiality of the judiciary.
The legislature by enacting RCW 3.50.100 and RCW 3.62.090 has determined how revenue received by the
court shall be distributed. A judicial officer has an ethical obligation to ensure that money is disbursed
according to these statutory provisions. In furtherance of that obligation, a judicial officer should not
approve agreements which deviate from statutory provisions.
CJC Canon 2(A) imposes on a judicial officer an obligation to promote the public confidence in the
judiciary. If a judicial officer routinely approves of agreements wherein the city and a defendant have
agreed to case dispositions in which money is to be paid to the city which is not in accord with statutory
provisions, the public confidence in the court system is undermined.
This opinion does not rule out other approaches; by way of example, it may be possible to impose an
additional penalty in a domestic violence case, provided that such a penalty is authorized by statute and that
the payment is allocated in compliance with statutory requirements.
Opinion 04-05
8/16/2004
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Pre-Trial Diversion Agreements — Jahns’s August 20, 2004 Analysis of Judicial
Ethics Advisory Opinion 04-05
Judicial Ethics Advisory Committee Opinion 04-05 appears to have caused courts of limited
jurisdiction statewide to question the propriety of a court’s involvement with PDAs in general, and the
court’s ability to “approve” a PDA involving any money not authorized by statute.
Six questions were submitted to the Ethics Advisory Committee concerning PDAs. The five paragraph
response to these extensive PDA questions purports to “answer” these questions with a discussion about
$$$, specifically Washington’s Public Safety and Education Assessment in RCW 3.62.090 (which applies
to any assessed and collected “fines, forfeitures, or penalties”) and the statutory method of dissemination of
fees, costs, fines, forfeitures and other money imposed due to a “violation” of statute or ordinance. RCW
3.50.100 (muni courts); RCW 3.62.020 (district courts).
The opinion’s “holding” appears to be the following:
“If a judicial officer routinely approves of agreements where the city and a defendant have agreed to case dispositions in
which money is to be paid to the city which is not in accord with statutory provisions, the public confidence in the court
system is undermined.” Accordingly, “a judicial officer should not approve agreements which deviate from statutory
provisions.” [emphasis added]
What does this mean?
The underlying facts which presented the questions involve a city attorney’s practice of seeking within
a PDA the payment to a “city human services fund” with probation monitoring compliance. Some PDAs
also involved a donation. The city human services commission administers grants, which had involved the
funding of a part-time DV advocate. The grant money was no longer available for this purpose, so PDA
money was used to continue to fund this DV advocate position. Apparently, all such monies were kept by
the city agency, and no part, including the PSEA, was sent to the state.
As best I can tell, it appears that the ethics opinion answer means that a court cannot “approve” a PDA
that has within its agreed terms the requirement that any $$$ sent to a government entity pursuant to the
PDA conflict with statutory provisions, i.e. fails to be disseminated in accordance with statutes dealing with
money split between local government and the state.
Unfortunately, the opinion answer fails to provide any analysis concerning why the money/donations
collected by the city human services agency were in conflict with state statutes, or why/how a court even
“approves” the terms of a PDA. This lack of analysis is unfortunate and will result in varied interpretations
from the bench across the state, which certainly was not the intent of a statewide judicial ethics opinion.
Two statutes were cited by the opinion answer: RCW 3.62.090 and 3.50.100. No case law was
discussed.
RCW 3.62.020, not discussed in the opinion answer, requires all “costs, fees, fines, forfeitures and
penalties assessed and collected” by district courts to be remitted by the court clerk to the county treasurer
at least monthly. Part of the monies are then forwarded to the state treasurer according to a rather
complicated formula.
RCW 3.50.100, the municipal court counterpart to RCW 3.62.020, provides that costs may be imposed
as provided in district court. The statute similarly requires all “fees, costs, fines, forfeitures and other
money imposed” by a municipal court to be collected by the clerk and deposited with the city treasurer,
who thereafter sends some of the monies to the state under the same formula as with district courts. See
also RCW 3.62.040 (same statutory scheme for costs, etc. imposed by district courts due to city ordinance
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violations).
RCW 3.62.090, the PSEA statute, requires the assessment and collection “in addition to any fines,
forfeitures, or penalties” (except for parking infractions) by all courts of limited jurisdiction of a PSEA
assessment “equal to seventy percent of such fines, forfeitures, or penalties.” The statute thereafter requires
an additional assessment of 50% of the PSEA assessed (except for DUI and physical control).
So, the PSEA is required when the court imposes a fine, forfeiture or penalty. Not explained by the
opinion answer is why it concludes (if it does) that $$$ paid to the city human services agency by the
defendant pursuant to an agreement with the city is a “cost, fee, fine, forfeiture or penalty” assessed and
collected by the court.
It is my opinion that a PDA is a contract between the defendant and prosecution. PDAs are of two
types: pre-charging diversion and post-charging diversion. Both have been approved by the courts. See
State v. Marino, 100 Wn.2d 719, 674 P.2d 171 (1984) (post-charging PDA) and State v. Kessler, 75
Wn.App. 634, 879 P.2d 333 (Div. 1 1994) (pre-charging PDA).
Marino specifically acknowledges the broad discretion given by the bench to the prosecution when the
prosecution decides to enter into a post-charge PDA with the defendant. In fact, Marino held that a court’s
role when addressing a prosecutor’s decision to terminate a PDA was very specific and limited. The
prosecution must prove a violation of the PDA by a preponderance, and the court must thererafter
determine whether the prosecution’s decision to seek termination was “not unreasonable.” The court does
not decide whether it would have violated the agreement (as with probation violation scenarios where the
court puts a defendant on probation and thus decides whether it wants to revoke), but rather only
determines if the prosecution’s decision was “not unreasonable.” It appears that a court would be justified
in refusing to terminate a PDA for being not-unreasonable only if the basis for the termination involves a
non-wilfull failure to pay $$$. See Kessler, 75 Wn.App. at 640, citing federal case law.
Case law is clear that the prosecution has virtually unlimited “charging” discretion to determine
whether to enter into a PDA with a suspect/defendant. No theory or case law exists which grants the
defense or bench the ability to compel the prosecution to enter into a PDA (contra deferred prosecution,
RCW 10.05, wherein the court may grant a DP over prosecution objection, see State ex rel. Schillberg,
Cascade Dist. Court, 94 Wn.2d 772, 621 P.2d 115 (1980)).
In a post-charging scenario, the prosecution and defense enter into whatever agreement they choose,
and thereafter ask the court to approve the agreement only insofar as the court is being asked to grant an
agreed continuance.
The culture has developed in Kitsap County wherein the court reviews the terms of a PDA with the
defendant to make sure that the defendant truly understands what is expected and what will happen if the
court in the future finds a violation of the agreement. Although not required, this process works well and is
important to our office so that no misunderstaning might have arisen with the defendant about the
agreement he/she has signed. Obviously, the prosecution cannot speak directly with a represented
defendant. In fact, it has occurred during this court colloquy with a defendant that the defendant decides
he/she would rather proceed to trial rather than enter the agreement. Although the court cannot deny the
PDA, it can deny the continuance (which practically is the same thing). In such situations, we would
withdraw the PDA anyway given the apparent lack of meeting of the minds between the prosecution and
defense.
Back to the ethics opinion answer. The court cannot “punish” anyone unless the person has been
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“convicted.” RCW 10.01.050. “Costs” may only be imposed when a defendant is “convicted” except upon
entry into a DP or for failure to appear. RCW 10.01.160. Fees or charges may only be imposed as court
costs “whenever a judgment for costs is awarded.” RCW 3.62.065. Obviously, fines cannot be imposed
unless a person is found guilty and sentenced. See e.g. RCW 3.66.065.
It does not appear to me that a PSEA obligation can arise until a defendand is convicted because the
court lacks statutory authority to impose costs, fees, etc. unless a conviction exists (except for DP and
warrant costs, and probably compromise of misdemeanor costs, RCW 10.22.020, and bail forfeitures under
CrRLJ 3.2(o) through (u)).
The only exception appears to be probation assessments, which a court of limited jurisdiction may
order “whenever the person is referred by the court to the misdemeanant probation department for
evaluation or services.” RCW 10.64.120. Revenues stay local for the funding of probation services. No
conviction is required. Thus, the court has authority to order pre-trial probation monitoring, etc., along with
the assessment of a monthly probation fee to cover the costs of the supervision.
The ethics opinion answer concludes that a court should not approve agreements which deviate from
statute. Yet, I fail to see how a PDA which the parties agree includes a “donation” (or any other $$$
language) violates the PSEA statute since a PDA does not involve a conviction, DP, compromise of
misdemeanor, or warrant.
If I am correct, exactly how is the bench deviating from PSEA statutory provisions when it approves a
PDA wherein the defendant agrees to pay $$$ to anyone or any entity, including the government?
If the opinion answer is read broady, one could conclude that a court could not “approve” a PDA
unless each term of the PDA had statutory support.
Yet there is no statute prohibiting the entry of a post-charge diversion agreement. To the contrary, case
law approves such agreements. PDAs are contracts between the prosecution and defense. The only court
involvement is its discretionary decision to grant the agreed request to continue the case. The court also
becomes involved upon a prosecution’s decision to terminate a PDA. This makes sense given the
separation of powers doctrine. Prosecutors, and not the court, determine whether to file criminal charges,
and what charges to file, subject to a few very narrow exceptions (Michielli just-before trial increased
charges forcing a speedy trial waiver; post-conviction presumption of prosecutorial vindictiveness if new
charges filed, see Korum; due process right to judicial determination if prosecutor terminates PDA).
I have read and re-read this ethics opinion answer, and I do not understand why the city’s PDAs
sending money to the city human services agency is in violation of state law concerning PSEA collection
when PSEA does not apply to PDAs (assuming that the opinion even holds that it is).
Oddly, the last paragraph of the opinion answer “does not rule out other approaches” for DV scenarios.
It posits that an additional DV penalty may be provided in a PDA if such a penalty is authorized by statute.
No authority is provided for this position.
Laws of 2004, ch. 15, section 2 creates a $100 DV assessment “on any person convicted of a crime
involving domestic violence.” If this is the provision to which the ethics opinion answer refers, how can the
$100 be assessed in a PDA? No conviction exists. I am unaware of any other statutory provision permitting
the court to order a DV penalty.
If the opinion answer is not referring to Laws of 2004, ch. 15, and no other statutory provision exists
permitting a DV penalty, how could a court order such a penalty in a DV PDA as posited by the opinion
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
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answer?
I am sure that I am missing something in all of this. That is why I encourage additional discussion.
But bottom line for me … I do not think this opinion has any impact on Kitsap PDAs because (1) the
court does not “approve” the terms of any PDA; it is only approving the agreed request for continuance
after being assured that the defendant understands the agreement; and (2) even if the court is “approving”
PDA terms, a most dubious position lacking any statutory or case law support iin my opinion, Kitsap courts
are not being asked to “approve” any term “which deviate[s] from statuory provisions” in violation of the
ethics opinion answer. All the $$$ provisions in Kitsap PDAs are agreed to by the defendant and no statute
exists in deviation of Kitsap PDA $$$ terms.
The ethics opinion answer’s focus on compliance with the PSEA statute is misplaced because the
statute only applies to convictions, DPs, compromise of misdemeanors, warrant costs and bail forfeits.
PDAs are not within the scope of the PSEA. Accordingly, the court in my opinion is not prohibited by this
ethics opinion from approving a continuance involving a Kitsap PDA which has $$$ going to various
entities by the terms of the PDA contract. Of course, if the ethics opinion is clarified (of which it is badly in
need), my opinion may change.
Pre-Trial Diversion Agreements — Kitsap’s Response to Judicial Ethics Advisory
Opinion 04-05 — The PDA Addendum
After much discussion with the Kitsap County District and Municipal Courts and local criminal
defense attorneys, Kitsap County’s response to the Judicial Ethics Advisory Opinion resulted in creation of
the PDA Addendum. In essence, the courts were concerned about any PDA money that would be paid by a
defendant to MADD, the Kitsap Alive Shelter and to law enforcement through the DUI cost recovery
program. This money is now handled through the PDA Addendum, which is signed by the parties but not
filed with the court unless the defendant is in alleged breach of the Addendum. The Addendum is
referenced in the PDA itself, and the original is kept in the prosecutor’s litigation file.
This new process resulted in the Kitsap Prosecutor’s Office being responsible for collecting the money
and monitoring Addendum compliance because the courts would no longer be involved. Since the
Prosecutor’s Office lacked staffing for such a task, the Kitsap County Board of Commissioners enacted an
ordinance allowing collection of up to $100 per case by the Prosecutor’s Office to cover the cost of
administering the Addendum. Any such monies collected by the Prosecutor’s Office is forwarded to the
county general fund.
A second issue arose concerning monitoring of the specific conditions of the PDA, such as obtaining
and completing alcohol treatment, etc. The Kitsap District Court lacked staffing to adequately review
compliance except in DV cases, and the Prosecutor’s Office wanted the PDAs checked at least monthly for
compliance (including whether the defendant committed any new crimes). So, the Prosecutor’s Office
contracted with Friendship Diversion Services to handle the PDA monitoring. Kitsap Municipal Courts we
able to use court staff for monitoring PDA compliance, so Friendship is only used for Kitsap District Court
cases at this time.
The following chart summarizes the Addendum process—
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PDA Addendum Use &Terms
District Court
DV (Red) Files
DUI (Blue) Files
Other (Green) Files
Municipal Court
Kitsap County Administrative Fee
Kitsap County Administrative Fee
Supervision by District Ct Probation
Supervision by Municipal Court
YWCA Contribution
YWCA Contribution
Court costs of $750 on PDA form
Court costs of $750 on PDA form
Kitsap County Administrative Fee
Kitsap County Administrative Fee
Supervision by Friendship
Supervision by Municipal Court
MADD Contribution
MADD Contribution
DUI Cost Recovery
DUI Cost Recovery
Court costs of $500 on PDA form
Court costs of $750 on PDA form
Kitsap County Administrative Fee
NO PDA ADDENDUM because
supervision by Municipal Court
Supervision by Friendship
Court costs of $500 on PDA form
Court costs of $750 on PDA form
The following is the Kitsap County Prosecutor’s Office’s Addendum to Pre-Trial Diversion
Agreement, updated October 1, 2004–
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PART III.
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 IN THE KITSAP COUNTY DISTRICT COURT
 IN THE BAINBRIDGE ISLAND MUNICIPAL COURT
 IN THE BREMERTON MUNICIPAL COURT
 IN THE PORT ORCHARD MUNICIPAL COURT
 IN THE POULSBO MUNICIPAL COURT
 STATE OF WASHINGTON,
 CITY OF BAINBRIDGE ISLAND,
 CITY OF BREMERTON,
 CITY OF PORT ORCHARD,
 CITY OF POULSBO,
Plaintiff,
v.
_____________________________________,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
NO.
ADDENDUM TO PRE-TRIAL DIVERSION
AGREEMENT
COMES NOW the Prosecution, by and through its attorney of record below-named, and the Defendant,
by and through his or her attorney of record below-named, and hereby enter the following Addendum to the
Pre-Trial Diversion Agreement filed in the above-entitled matter–
 Kitsap County Administrative Fee. Within 90 days, the Defendant agrees to pay a $50 Kitsap
County Administrative Fee to cover the cost of administering this Addendum to Pre-Trial Diversion
Agreement. Payments shall be made by cash, certified bank check, money order or law firm check to
the Kitsap County Prosecutor’s Office, 614 Division Street, MS-35, Port Orchard, WA 98366. No
personal checks will be accepted. Certified bank checks, money orders or law firm checks shall be
made out to “Kitsap County Prosecutor’s Office” and should include the Defendant’s full name and
case number.
 Monitoring of Conditions by Prosecutor’s Office. The Defendant agrees that compliance with the
Pre-Trial Diversion Agreement shall be monitored by the Prosecutor’s Office through the Friendship
Diversion Services (“FDS”), 502 High Street, Suite 113, Port Orchard, WA 98366, office hours
Monday through Friday 8:00 AM through 4:30 PM (earlier and evening appointments available upon
request). The Defendant agrees to contact FDS, 360-876-1825, within one judicial day of the signing
of this Agreement, bring a copy of this agreement to FDS, make all appointments with FDS, and abide
by all FDS rules and regulations. The Defendant also agrees to pay $250 to FDS for their services at a
payment plan satisfactory to FDS.
 MADD Contribution. Within 90 days, the Defendant agrees to make a $100 contribution to Mothers
Against Drunk Driving ($25 of the contribution will go to Anna’s Ride Home). Payments shall be
made by cash, certified bank check, money order or law firm check to the Kitsap County
Prosecutor’s Office, 614 Division Street, MS-35, Port Orchard, WA 98366. No personal checks will
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be accepted. Certified bank checks, money orders or law firm checks shall be made out to “Kitsap
County Prosecutor’s Office” and should include the Defendant’s full name and case number.
 YWCA Contribution. Within 90 days, the Defendant agrees to make a $100 contribution to the
YWCA Alive Shelter. Payments shall be made by cash, certified bank check, money order or law firm
check to the Kitsap County Prosecutor’s Office, 614 Division Street, MS-35, Port Orchard, WA
98366. No personal checks will be accepted. Certified bank checks, money orders or law firm checks
shall be made out to “Kitsap County Prosecutor’s Office” and should include the Defendant’s full
name and case number.
 DUI Cost Recovery. Within 90 days, the Defendant agrees to pay DUI Cost Recovery in the total
amount of $______________. Payments shall be made by cash, certified bank check, money order or
law firm check to the Kitsap County Prosecutor’s Office, 614 Division Street, MS-35, Port Orchard,
WA 98366. No personal checks will be accepted. Certified bank checks, money orders or law firm
checks shall be made out to “Kitsap County Prosecutor’s Office” and should include the
Defendant’s full name and case number. The Kitsap County Prosecutor’s Office will distribute the
DUI Cost Recovery funds as follows–







Washington State Patrol–[ $50] [ $75] [ $100] [ $125] [ $150] [ $_______]
Kitsap County Sheriff’s Office–[ $50] [ $75] [ $100] [ $125] [ $150] [ $_______]
Bainbridge Island PD–$150
Bremerton PD–[ $50] [ $75] [ $100] [ $125] [ $150] [ $_______]
Port Orchard PD–[ $50] [ $75] [ $100] [ $125] [ $150] [ $_______]
Poulsbo PD–[ $50] [ $75] [ $100] [ $125] [ $150] [ $_______]
Kitsap County Fire District Number _____–$563.85
DATED this __________ day of _________________________, __________.
_________________________________________
DEFENDANT
_________________________________________
____________________, WSBA NO. __________
Deputy Prosecuting Attorney
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
_________________________________________
____________________, WSBA NO. __________
Attorney for Defendant
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PART III.
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Kitsap Prosecutor’s Office — Sample Certificate of Counsel — History of Pre-Trial
Diversion Agreement
Prosecutorial discretion in the charging process has historically provided a basis for informal diversion from the criminal
justice system, including noncriminal disposition and pretrial diversion(a) The prosecutor should explore the availability of noncriminal disposition, including programs of
rehabilitation, formal or informal, in deciding whether to press criminal charges. Especially in the case of a first
offender, the nature of the offense may warrant noncriminal disposition. (b) Prosecutors should be familiar
with the resources of social agencies which can assist in the evaluation of cases for diversion from the criminal
process.
AMERICAN BAR ASSOCIATION STANDARDS FOR CRIMINAL JUSTICE, CHAPTER 3-THE PROSECUTION
FUNCTION, STANDARD 3-3.8.
The Commentary to the ABA Standard provides guidance to prosecuting authorities concerning proper exercise of this
discretion.
The opportunity to dispose of a case by resort to other corrective social processes, before or after formal charge
or indictment without pursuing the criminal process, should be given careful consideration in appropriate
situations. National studies of the criminal justice system have repeatedly recommended diversion to other
community resources of offenders in need of assistance for whom criminal prosecution is unwarranted.
Moreover, it has long been the practice among experienced prosecutors to defer prosecution upon the
fulfillment of certain conditions, such as a firm arrangement for the offender to seek psychiatric assistance
where the disturbed mental condition may have contributed to the aberrant behavior. Another technique of long
standing is for the prosecutors not to prosecute an offender who has agreed to enter the military service, who
has obtained new employment, or has embarked in some other manner on what can broadly be considered a
rehabilitative program....Where diversion of the defendant is successful, the dismissal of charges or the
suspension of sentence will be appropriate.
The Legislature has recognized the propriety of pretrial diversion or deferred prosecution programs for misdemeanor and
gross misdemeanor offenses. [RCW 10.05 - Deferred Prosecution. RCW 10.05 authorizes a court to continue a non-felony
case for two years (extended to five years beginning January 1, 1999) upon a defendant’s petition under oath that the
“wrongful conduct charged is the result of or caused by alcoholism, drug addiction, or mental problems for which the
person is in need of treatment and unless treated the probability of further reoccurrence is great...” RCW 10.05.020(1).
Upon successful completion of the two (five year) treatment program, the court “shall” dismiss the charges pending against
the defendant. RCW 10.05.120.] [RCW 10.22 - Compromise of Misdemeanors. RCW 10.22.010 authorizes the court to
dismiss certain types of non-felony cases where the person injured by the act constituting the offense has a civil remedy
except when the offense was committed (1) by or upon an officer while in the execution of the duties of his or her office;
(2) riotously; (3) with an intent to commit a felony, or (4) by one family or household member against another as defined in
RCW 10.99.020(1) and was a crime of domestic violence as defined in RCW 10.99.020(2).]
While the Prosecutor’s Office does not have a pre-charging diversion program for adult offenders, since 1995 the office
has offered a pretrial diversion option in some charged adult misdemeanor and gross misdemeanor cases when the
defendant has minimal prior criminal history, evidentiary problems make conviction on the original charge doubtful, or a
request is made from the victim which is not the result of pressure from the defendant.
The current pretrial diversion process and agreement arose from the Prosecutor’s Office’s response to domestic violence
cases where the victim recanted or was otherwise unavailable, evidentiary problems existed, and/or the family intended on
remaining together. A pretrial diversion agreement “encouraged” perpetrators of domestic violence to agree to be
supervised by the probation department and to commit to the successful completion of alcohol and/or drug treatment and
domestic violence perpetrator’s counseling.
As the number of adult criminal misdemeanor cases occurring in Kitsap County increased to previously unimaginable
levels, use of the pretrial diversion agreement was expanded to include crimes in addition to those involving domestic
violence.
Most prosecutor’s offices use some form of pretrial diversion in adult misdemeanor cases. Some call it a stipulation or
continuance on agreed terms. Often, though, these agreements are short one-page documents that do not clearly spell out
the parameters of the pretrial diversion agreement, especially the consequences of a defendant’s breach of the agreement.
Significantly, such short agreements upon violation by a defendant may result in the case being set for jury trial one or two
years after its entry with no true consequence to the defendant for violation of the agreement.
The Prosecutor’s Office’s Pretrial Diversion Agreement is much more extensive than these one-page efforts so that a
defendant, defense counsel, and the tri l court can be assured of a complete understanding of the terms of the agreement
between the Prosecutor’s Office and a defendant.
The specific Pretrial Diversion Agreement “form” used by the Prosecutor’s Office was modeled after the deferred
prosecution statute and the requirements of RCW 10.05.020 (acknowledgment and waivers of the right to testify, the right
to present evidence in defendant’s defense, the right to jury trial, and a stipulation to the admissibility of police reports and
other materials submitted by the Prosecutor’s Office as the sole evidence to be considered at a bench trial if a defendant is
found to have violated the agreement).
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PART III.
INVESTIGATION FOR PROSECUTION DECISION
One mandatory requirement of every Pretrial Diversion Agreement offered to a defendant by the Prosecutor’s Office is
that a defendant agree to waive speedy trial, often for up to two years. This requirement is mandatory since a Pretrial
Diversion Agreement case may be continued up to two years upon its entry, and the failure of a defendant to agree to waive
his or her speedy trial right could result in the case being dismissed for violation of the speedy trial rules in CrRLJ 3.3.
Such a windfall result to a Pretrial Diversion Agreement defendant (who presumably is in breach of the agreement since
the issue would not matter if he or she had successfully completed the agreement) cannot be permitted to occur. Thus, the
mandatory Prosecutor’s Office requirement of a speedy trial waiver for all Pretrial Diversion Agreements.
Two types of Pretrial Diversion Agreements have been developed-one wherein the Prosecutor’s Office agrees to ask the
Court to reduce charges at the successful conclusion of the diversion period, and the other wherein the Prosecutor’s Office
agrees to ask the Court to dismiss the case at the successful conclusion of the diversion period. Both types of Pretrial
Diversion Agreements have various terms and conditions to which a defendant agrees.
As part of my responsibilities as Chief Deputy Prosecuting Attorney, in 1995 I drafted the original Pretrial Diversion
Agreement form after consultation with Russell D. Hauge, the Kitsap County Prosecutor. The document has been modified
many times over the past six years, often after consultation with other deputy prosecutors, defense attorneys, court staff,
and the Kitsap County District and Municipal Court judges. [Much of the on-going input concerning the terms of the
Pretrial Diversion Agreement form and the Prosecutor’s Office policy when to offer pretrial diversion as an option to
District and Municipal Court defendants (the Prosecutor’s Office has contracts to provide prosecution services for the
municipal courts in Bremerton, Port Orchard and Poulsbo) has been provided through the Kitsap County Bar Association’s
District and Municipal Court Criminal Practice and Procedures Committee. The Committee was created in 1992 by the
Kitsap County Bar Association. I was appointed by the 1992 President of the Kitsap County Bar Association, Russell D.
Hauge, to chair the Committee at its inception in 1992. I was again nominated to Chair the Committee in 1994, and have
since been annually nominated to do so. I was recently re-nominated as this year’s Chair by current Kitsap County Bar
Association President John Morgan to serve as Chair through March 2002.]
A Pretrial Diversion Agreement is an agreement between the Prosecutor’s Office and a defendant. Nothing in the
agreement binds a Court to do anything, and any attempt to do so would fail since the Prosecutor’s Office and defendants
lack the power to bind a court. A court could completely reject the agreement. A court could refuse to grant the parties’
requested continuance.
Once an agreement is accepted by a court, though, a defendant has certain due process rights upon the Prosecutor’s
Office’s allegation that a defendant breached the agreement. The procedures to be followed upon a defendant’s alleged
breach of a Pretrial Diversion Agreement are outlined towards the end of the Pretrial Diversion Agreement as discussed in
the cases of State v. Marino, 100 Wn.2d 719, 674 P.2d 171 (1984) and State v. Kessler, 75 Wn.App. 634, 879 P.2d 333
(1994). These case cites are included in every Pretrial Diversion Agreement so that no misunderstanding will arise about
the procedure on a defendant’s alleged breach of the agreement.
The majority of defendants who enter into a Pretrial Diversion Agreement with the Prosecutor’s Office successfully
complete the agreement. Financial obligations are paid, treatment is completed, and no criminal laws are violated.
The Prosecutor’s Office has a zero tolerance policy, though, for those defendants who breach a Pretrial Diversion
Agreement. A defendant enters into a Pretrial Diversion Agreement “freely, voluntarily and knowingly … with full
awareness and explanation of the possible legal consequences.” A defendant’s breach of any of the terms or conditions to
which he or she agreed upon entry of a Pretrial Diversion Agreement can and should result in a court finding a breach of
the agreement, a bench trial on stipulated reports, and a guilty finding if evidence exists beyond a reasonable doubt to
support the charge(s).
Kitsap Prosecutor’s Office — Sample Memorandum — Motion to Revoke Pretrial
Diversion Agreement
COMES NOW the Plaintiff, STATE OF WASHINGTON, by and through its attorney =DPA=, Deputy Prosecuting Attorney,
with the following Memorandum of Authorities Re: Revocation of Pre-Trial Diversion Agreement–
A. History of Pre-Trial Diversion Agreements
Prosecutorial discretion in the charging process has historically provided a basis for informal diversion from the criminal
justice system, including noncriminal disposition and pre-trial diversion–
(a) The prosecutor should explore the availability of noncriminal disposition, including programs of
rehabilitation, formal or informal, in deciding whether to press criminal charges. Especially in the case of a first
offender, the nature of the offense may warrant noncriminal disposition.
(b) Prosecutors should be familiar with the resources of social agencies which can assist in the evaluation of
cases for diversion from the criminal process.
AMERICAN BAR ASSOCIATION STANDARDS FOR CRIMINAL JUSTICE, CHAPTER 3–THE PROSECU-TION FUNCTION, Standard
3-3.8.
The Commentary to the ABA Standard provides guidance to prosecuting authorities concerning proper exercise of this
discretion.
The opportunity to dispose of a case by resort to other corrective social processes, before or after formal charge or
indictment without pursuing the criminal process, should be given careful consideration in appropriate situations. National
THE QUEST FOR JUSTICE 2005 (2nd Ed.)
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PART III.
INVESTIGATION FOR PROSECUTION DECISION
studies of the criminal justice system have repeatedly recommended diversion to other community resources of offenders
in need of assistance for whom criminal prosecution is unwarranted. Moreover, it has long been the practice among
experienced prosecutors to defer prosecution upon the fulfillment of certain conditions, such as a firm arrangement for the
offender to seek psychiatric assistance where the disturbed mental condition may have contributed to the aberrant behavior.
Another technique of long standing is for the prosecutors not to prosecute an offender who has agreed to enter the military
service, who has obtained new employment, or has embarked in some other manner on what can broadly be considered a
rehabilitative program....Where diversion of the defendant is successful, the dismissal of charges or the suspension of
sentence will be appropriate.
The Legislature has recognized the propriety of pre-trial diversion or deferred prosecution programs for adult misdemeanor
and gross misdemeanor offenses, including deferred prosecution3 and compromise of misdemeanors.4
While the Kitsap County Prosecutor’s Office does not have a pre-charging diversion program for adult offenders, since
1995 the office has offered a pre-trial diversion option in some charged adult misdemeanor and gross misdemeanor cases
when a defendant has minimal prior criminal history, the case has evidentiary problems which make conviction on the
original charge doubtful, or a request is made from the victim which is not the result of pressure from a defendant.
The current pre-trial diversion process and agreement arose from the Kitsap County Prosecutor’s Office’s response to
domestic violence cases where the victim recanted or was otherwise unavailable, evidentiary problems existed, and/or the
family intended on remaining together. A pre-trial diversion agreement “encouraged” perpetrators of domestic violence to
agree to be supervised by a probation department and to commit to the successful completion of alcohol and/or drug
treatment and domestic violence perpetrator’s counseling.
As the number of adult criminal misdemeanor cases occurring in Kitsap County increased to previously unimaginable
levels, use of a pre-trial diversion agreement was expanded to include crimes in addition to those involving domestic
violence.
Most prosecutor’s offices use some form of pre-trial diversion in adult misdemeanor cases. Some call it a stipulation or
continuance on agreed terms. Often, though, these agreements are short one-page documents that do not clearly spell out
the parameters of the pre-trial diversion agreement, especially the consequences of a defendant’s breach of the agreement.
Significantly, such short agreements upon violation by a defendant may result in the case being set for jury trial one or two
years after its entry with no true consequence to the defendant for violation of the agreement.
The Kitsap County Prosecutor’s Office’s Pre-Trial Diversion Agreement is much more extensive than these one-page
efforts so that a defendant, defense counsel, and the trial court can be assured of a complete understanding of the terms of
the agreement between the Prosecutor’s Office and a defendant.
The specific Pre-Trial Diversion Agreement “form” used by the Prosecutor’s Office was modeled after the deferred
prosecution statute and the requirements of RCW 10.05.020.5
Two types of Pre-Trial Diversion Agreements have been developed–one wherein the Prosecutor’s Office agrees to ask the
Court to reduce charges at the successful conclusion of the diversion period, and the other wherein the Prosecutor’s Office
agrees to ask the Court to dismiss the case at the successful conclusion of the diversion period. Both types of Pre-Trial
Diversion Agreements have various terms and conditions to which a defendant agrees.
A pre-trial diversion agreement is an agreement between the Prosecutor’s Office and a defendant. Nothing in the agreement
binds a Court to do anything, and any attempt to do so would fail since the Prosecutor’s Office and defendants lack the
power to bind a court. A court could completely reject the agreement. A court could refuse to grant the parties’ requested
continuance.
Once an agreement is accepted by a court, though, a defendant has certain Due Process Rights upon the prosecution’s
allegation that a defendant breached a condition of the agreement. The procedures to be followed upon a defendant’s
alleged breach of a Pre-Trial Diversion Agreement are outlined towards the end of the Pre-Trial Diversion Agreement as
discussed in the cases of State v. Marino6 and State v. Kessler.7 These case cites are included in every Pre-Trial Diversion
Agreement so that no misunderstanding will arise about the procedure to be followed upon a defendant’s alleged breach of
a condition of the agreement.
3
RCW 10.05–Deferred Prosecution. RCW 10.05 authorizes a court to continue a non-felony case for two years (extended to five years
beginning January 1, 1999) upon a defendant’s petition under oath that the “wrongful conduct charged is the result of or caused by
alcoholism, drug addiction, or mental problems for which the person is in need of treatment and unless treated the probability of
further reoccurrence is great...” RCW 10.05.020(1). Upon successful completion of the two (five year) treatment program, the court
“shall” dismiss the charges pending against the defendant. RCW 10.05.120.
4
RCW 10.22–Compromise of Misdemeanors. RCW 10.22.010 authorizes the court to dismiss certain types of non-felony cases where
the person injured by the act constituting the offense has a civil remedy except when the offense was committed (1) by or upon an
officer while in the execution of the duties of his or her office; (2) riotously; (3) with an intent to commit a felony, or (4) by one family
or household member against another as defined in RCW 10.99.020(1) and was a crime of domestic violence as defined in RCW
10.99.020(2).
5
Acknowledgment and waivers of the right to testify, the right to present evidence in defendant’s defense, the right to jury trial, and a
stipulation to the admissibility of police reports and other materials submitted by the Kitsap County Prosecutor’s Office as the sole
evidence to be considered at a bench trial if a defendant is found to have violated the agreement.
6
100 Wn.2d 719, 674 P.2d 171 (1984).
7
75 Wn.App. 634, 879 P.2d 333 (Div. 1 1994).
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The majority of defendants who enter into a Pre-Trial Diversion Agreement with the Prosecutor’s Office successfully
complete the agreement. Financial obligations are paid, treatment is completed, and no criminal laws are violated.
The Kitsap County Prosecutor’s Office has a zero tolerance policy, though, for those defendants who breach a Pre-Trial
Diversion Agreement. A defendant enters into a Pre-Trial Diversion Agreement “freely, voluntarily and knowingly … with
full awareness and explanation of the possible legal consequences.”8
A defendant’s breach of any of the terms or conditions to which he or she agreed upon entry of a Pre-Trial Diversion
Agreement can and should result in this Court finding a breach of the agreement, a bench trial on stipulated reports, and a
guilty finding if evidence exists beyond a reasonable doubt to support the underlying charge(s).
B. Three Part Procedure Upon Alleged Breach of a Pre-Trial Diversion Agreement
Step One – Was a violation of the terms of the PDA proven by a preponderance of the evidence?
General Process – Contract Law
A pre-trial diversion agreement, like a plea agreement, is a contract between the prosecution and defendant.9
In 1984, the Supreme Court was presented with the question of the proper role of the court when the prosecution sought to
terminate a pre-trial diversion agreement.10 After examining the similar rights at stake in probation revocations, plea
agreements and pre-trial diversion agreements, the Court concluded that a defendant is entitled under the Due Process
Clause to have factual disputes concerning an alleged violation of the terms of a pre-trial diversion agreement resolved by a
neutral fact finder rather than the prosecuting authority. “This includes an independent determination that the deferred
prosecution agreement was violated, by a preponderance of the evidence with the burden of proof on the State.”11
...This requirement best safeguards the [defendant’s] right to have the agreement administered equitably, with
full protection of the constitutional rights relinquished in the bargain. The State is not unduly burdened as it has
no interest in proceeding to prosecution in any case unless a violation has, in fact, occurred.[ 12]
“Preponderance of the evidence” means that sufficient evidence exists to be persuaded that a claim is more probably true
than not true.13
Duty of Good Faith
Every contract has an implied duty of good faith and fair dealing.
There is in every contract an implied duty of good faith and fair dealing. This duty obligates the parties to
cooperate with each other so that each may obtain the full benefit of performance.[14]
Contract Interpretation – The Parties’ Intent
The “touchstone” of a court’s interpretation of a contract is the parties’ intent. 15
…In Washington, the intent of the parties to a particular agreement may be discovered not only from the actual
language of the agreement but also from “‘viewing the contract as a whole, the subject matter and objective of
the contract, all the circumstances surrounding the making of the contract, the subsequent acts and conduct of
the parties to the contract, and the reasonableness of respective interpretations advocated by the parties.’”[16]
In order for a court to determine the parties’ intent, courts traditionally “look through the form of the transaction and
consider its substance.”17
Evidence Rules and Hearsay
ER 1101(c)(3) provides that the Evidence Rules (except with respect to privileges) do not apply in various circumstances,
including preliminary determinations in criminal cases and sentencing or granting or revoking probation. As noted in
Marino, a revocation of a pre-trial diversion agreement involves similar rights which are at stake in probation revocation
hearings and entry of plea agreements.
Washington case law has long held that a probationer’s right of confrontation is limited and accordingly allows admission
of hearsay evidence at a probation revocation hearing.18 This holding is in accord with the minimal due process rights
Page 5 of all Pre-Trial Diversion Agreements in “Acceptance of PDA and Order of Continuance” section just above the Judge’s
signature.
9
See State v. Talley, 134 Wn.2d 176, 182, 949 P.2d 358 (1998) (plea bargain agreement is a contract, with the defendant giving up
constitutional rights in exchange for the prosecution’s agreement to recommend a specific sentence); and State v. Wakefield, 130
Wn.2d 464, 474, 925 P.2d 183 (1996).
10
State v. Marino, 100 Wn.2d 719, 674 P.2d 171 (1984).
11
Marino, 100 Wn.2d at 725.
12
Id.
13
See, e.g. WPIC 17.06.01 (2nd ed.).
14
Badgett v. Security State Bank, 116 Wn.2d 563, 569, 807 P.2d 356 (1991) (citations omitted).
15
Tanner Elec.Co-op. v. Puget Sound Power & Light Co., 128 Wn.2d 656, 911 P.2d 1301 (1996).
16
Tanner, 128 Wn.2d at 674 (citations omitted).
17
Zachman v. Whirlpool Acceptance Corp., 120 Wn.2d 304, 314, 841 P.2d 27 (1992) (citations omitted).
18
State v. Nelson, 103 Wn.2d 760, 763-64, 697 P.2d 579 (1985).
8
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granted to a probationer or parolee.19
...The current test is a balancing one in which the probationer’s right to confront and cross-examine witnesses is
balanced against any good cause for not allowing confrontation. Good cause has thus far been defined in terms
of difficulty and expense of procuring witnesses in combination with “demonstrably reliable” or “clearly
reliable” evidence.[20]
Evidence which is “demonstrably reliable” has been found to constitute good cause for admitting hearsay evidence of a
letter from a drug treatment program officer to a probation officer, letters of vocational instructors and caseworkers,
official reports from program officials, victims’ statements corroborated by other witnesses, a therapist’s statements
corroborated by others, admissions of the probationer, and evidence from court files and state probation reports. 21
Hearsay documents including urinalysis test results and a lab supervisor’s letter were sufficiently reliable so as to be
admissible in a community supervision violation hearing.22
“The Defendant shall have no criminal law violations.” – Resolution of a New Criminal Law Violation is Not
Required
A trial court’s role in a hearing on the prosecution’s motion to revoke a pre-trial diversion agreement is to determine
whether the prosecution has proven a violation of a condition of the agreement by a preponderance of evidence.
Often, one of the prosecution’s allegations for asserting a breach of a pre-trial diversion agreement concerns a defendant’s
violation of the criminal law.
Defendants often assert that the new criminal law violation is merely an allegation of criminal conduct entitling the
defendant to continue or delay the motion to revoke the pre-trial diversion agreement until the new criminal law violation
allegation is resolved. While the trial court has discretion to continue a prosecution’s motion to revoke a pre-trial diversion
agreement under this situation, such a decision was not as contemplated by the parties nor specifically agreed to by the
prosecution in the pre-trial diversion agreement.
The issue is whether the prosecution has proven a subsequent violation of the criminal law by a preponderance of the
evidence. A defendant’s acquittal on or dismissal of the new charges will not prohibit the prosecution from going forward
on the alleged breach of the pre-trial diversion agreement nor prohibit the trial court from finding that a breach occurred,
thereby allowing termination of the agreement and resulting in likely conviction on stipulated evidence at a bench trial as
contemplated at the time of entry of the pre-trial diversion agreement.23
Additionally, whether a defendant is ever “convicted” of the subsequent criminal law violation is inapposite since a pretrial diversion agreement does not require a defendant to “have no criminal law convictions.” Since the form of the pretrial diversion agreement was patterned after Washington’s deferred prosecution statute, RCW 10.05, it is instructive to
examine when a defendant may be revoked from a deferred prosecution based upon a new criminal law violation.
RCW 10.05.100 specifically requires the trial court to remove a defendant from the deferred prosecution file and proceed
to judgment pursuant to RCW 10.05.020 if a defendant is subsequently “convicted” of a similar offense while in a deferred
prosecution program. A “conviction” is a judgment that the accused is guilty as charged.
As noted in State v. Kuhn,24 a trial court need not wait until a subsequent conviction has been fully reviewed and upheld on
appeal to revoke deferred prosecution based upon a subsequent conviction.
To hold otherwise would mean that a petitioner subsequently convicted of a similar offense could avoid
revocation and, therefore, punishment, until the subsequent conviction had completed appellate review. Such an
interpretation does little to protect the public from the risks presented by the deferred prosecution petitioner who
continues to use intoxicants in violation of the petitioner’s deferred prosecution conditions.[ 25]
While the sole fact that a defendant is arrested for a subsequent criminal law violation is insufficient to prove a failure to
maintain “good behavior,”26 proof that a defendant was “convicted” is not required to show a criminal law “violation.”
Unlike the word “conviction,”27 which requires a judgment that an accused is guilty, “violation” means a breach of a right,
19
Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36
L.Ed.2d 656 (1973); and In re Boone, 103 Wn.2d 224, 691 P.2d 964 (1984).
20
Nelson, 103 Wn.2d at 765.
21
Nelson, 103 Wn.2d at 764-65.
22
State v. Anderson, 88 Wn.App. 541, 945 P.2d 1147 (Div. 2 1997) (expense factors weigh against requiring the prosecution to
present live witnesses since reliability of a lab is clear given its independent and neutral role in testing samples and providing
analysis).
23
State v. Cyganowski, 21 Wn.App. 119, 121, 584 P.2d 426 (Div. 2 1978) (no constitutional requirement that a trial be held prior to a
revocation hearing on the same acts; even if revocation hearing delayed, an acquittal would not prevent a revocation of probation due
to the differing standards of proof); Standlee v. Smith, 83 Wn.2d 405, 518 P.2d 721 (1974); State v. Kuhn, 81 Wn.2d 648, 503 P.2d
1061 (1972).
24
74 Wn.App. 787, 792, 875 P.2d 1225, review denied, 127 Wn.2d 1017 (Div. 2 1994).
25
Id.
26
Seattle v. Lea, 56 Wn.App. 859, 786 P.2d 798 (Div. 1 1990) (if the only evidence of a criminal law violation was the fact of an
arrest, the evidence is insufficient to support a probation violation; some underlying evidence concerning the basis of alleged criminal
law violation is required).
27
“Conviction. 1. The act or process of judicially finding someone guilty of a crime; the state of having been proved guilty. 2. The
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duty or law.28
The prosecution need not prove a “conviction” of the criminal law to successfully seek revocation of a pre-trial diversion
agreement by a defendant’s failure to have “no criminal law violations.” A violation is shown with proof by a
preponderance of the evidence that a defendant “breached” the specific condition of the Pre-Trial Diversion Agreement
that the defendant will have–“[N]o criminal law violations.”
A continuance to allow a defendant to litigate his or her new criminal law violation serves no purpose as contemplated by
the parties when they entered into a pre-trial diversion agreement. To the contrary, the parties at entry of the pre-trial
diversion agreement contemplated just the opposite result–that a hearing will promptly be held upon the prosecution’s
motion to revoke the agreement. Just as a defendant expects the charge(s) to be reduced or dismissed as contemplated by
the agreement upon his or her successful compliance, the prosecution expects a prompt hearing on its allegation that the
defendant breached the agreement. A continuance of the prosecution’s motion to revoke to allow for resolution of new
criminal charges, often in another court, clearly fails to take into consideration the parties’ intent at the entry of the
agreement.
Step Two – Was the prosecution’s decision to terminate the PDA “not unreasonable?”
Once the trial court has resolved the factual disputes concerning whether a violation of the pre-trial diversion agreement
occurred, the trial court should assess the reasonableness of the prosecution’s decision to terminate the pre-trial diversion
agreement.
...Clearly, the court is not in a position to require that prosecution be recommended. Discretion to finally bring
the case to trial still rests with the prosecutor. Other options may still be open in a particular case, such as
reducing charges if a plea bargain is reached, offering a new diversion agreement, or dismissing charges where
appropriate. We therefore hold that the court’s review of a prosecutor’s termination decision should consist of
assessing its reasonableness in light of the facts the trial court determines at hearing.[ 29]
The trial court’s decision upon reviewing the reasonableness of the prosecution’s decision to terminate a pre-trial diversion
agreement is “more like a legal conclusion, or a mixed question of fact and law, than an additional finding of fact.” State v.
Kessler.30 While the trial court may not agree with the prosecution’s decision to terminate the agreement, the trial court’s
function is to determine if the prosecutor’s decision to terminate was “not unreasonable.”31
A prosecutor’s decision to terminate a pre-trial diversion agreement for nonpayment of therapy bills will not be upheld as
reasonable where the underlying problem is hardship and a defendant’s inability to pay. 32 A willful non-payment, though,
resulting from a defendant’s choice to make this financial obligation a low priority will support the decision to terminate
the agreement.33
...The determination as to whether termination is reasonable for these violations is analogous to the
determination in a breach of contract case of whether a breach is material, thus warranting a remedy. It
depends on the circumstances of each particular case.[34]
A violation of a pre-trial diversion agreement need not be criminal in nature to justify termination. The issue for the trial
court to determine is the materiality of the violations to the intent of the parties when the agreement was entered, which
inherently depends on the particular provisions of the pre-trial diversion agreement.35
Step Three – Did the prosecution prove beyond a reasonable doubt that the
defendant was guilty of the underlying charge?
The Kitsap County Prosecutor’s Office’s Pre-Trial Diversion Agreement clearly sets forth what will occur if the
prosecution’s decision to terminate or revoke a pre-trial diversion agreement is approved by the trial court.
In exchange for the prosecution’s agreement to amend or dismiss the charges upon the defendant’s satisfying various
conditions,36 the defendant agrees to waive many constitutional rights including his or her speedy trial and jury trial rights,
stipulates to the admissibility of the police reports and other materials submitted by the prosecution, and agrees that this
evidence will be submitted to the court for a determination of guilt or innocence.37
judgment (as by a jery verdict) that a person is guilty of a crime. 3. A strong belief or opinion.” BLACK’S LAW DICTIONARY 335 (7th
ed. 1999).
28
“Violation. 1. An infraction or breach of the law; a transgression. 2. The act of breaking or dishonoring the law; the contravention of
a right or duty. 3. Rape; ravishment. 4. Under the Model Penal Code, a public-welfare offense. In this sense, a violation is not a crime.
See Model Penal Code § 1.04(5).” BLACK’S LAW DICTIONARY 1564 (7th ed. 1999).
29
Marino, 100 Wn.2d at 725.
30
75 Wn.App. 634, 639, 879 P.2d 333 (Div. 1 1994).
31
Id.
32
United States v. Snead, 822 F.Supp. 885, 888 (D. Conn. 1993), cited in Kessler, 75 Wn.App. at 640.
33
Kessler, 75 Wn.App. at 640.
34
Kessler, 75 Wn.App. at 640-41 (emphasis added).
35
Kessler, 75 Wn.App. at 641.
36
Pre-Trial Diversion Agreement, “Prosecution’s Agreement” at 2-3.
37
Pre-Trial Diversion Agreement, “Defendant’s Agreement” at 1. The defendant also waives his or her right to hear and question
witnesses, the right to call witnesses in his or her own behalf, and the right to testify or not to testify. Pre-Trial Diversion Agreement,
“Defendant’s Agreement” at 1-2. See substantially similar language of CrRLJ 6.1.2(b) (Statement of Defendant on Submittal or
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...[a] guilty plea...is functionally and qualitatively different from a stipulation. A guilty plea generally waives
the right to appeal. A guilty plea has been said to be “itself a conviction; nothing remains but to give judgment
and determine punishment.”
A stipulation, on the other hand...is only an admission that if the State’s witnesses were called, they would testify in
accordance with the summary presented by the prosecutor. The trial court must make a determination of guilty or
innocence. More importantly, a stipulation preserves legal issues for appeal and can operate to keep potentially prejudicial
matters from the jury’s consideration.[38]
Once a trial court finds that the prosecution has proven a violation of any condition of a Pre-Trial Diversion Agreement by
a preponderance of the evidence, and that the prosecution’s decision to terminate the agreement was “not unreasonable,”
the Pre-Trial Diversion Agreement makes clear that the case next proceeds to a bench trial on the underlying charge(s)
based upon stipulated evidence. If the prosecution proves the underlying charge(s) beyond a reasonable doubt, the
defendant must be found guilty. If not, the defendant is acquitted.
C. The Case at Bar
=insert analysis=
D. Conclusion
=insert conclusion=. Accordingly, this Court should find (1) that the prosecution has proven a violation of a condition(s)
of the Pre-Trial Diversion Agreement by a preponderance of the evidence, and (2) that the prosecution’s decision to
terminate the agreement was “not unreasonable,” and (3) that the defendant is guilty of the underlying charge(s) because
the prosecution has proven all the elements of the charge(s) beyond a reasonable doubt.
RESPECTFULLY SUBMITTED this _____ day of _______________, _____.
STATE OF WASHINGTON
______________________________________
[DPA], WSBA NO. [WSBA]
Deputy Prosecuting Attorney
Stipulation to Facts) which is specifically referenced in the Pre-Trial Diversion Agreement.
38
State v. Johnson, 104 Wn.2d 338, 341, 705 P.2d 773 (1985) (citations omitted). See also State v. Smith, 134 Wn.2d 849, 852-54, 953
P.2d 810 (1998); State v. Mierz, 127 Wn.2d 460, 469, 901 P.2d 286 (1995); State v. Halgren, 87 Wn.App. 525, 531-32, 942 P.2d 1027
(Div. 1 1997), reversed on other grounds, 137 Wn.2d 340, 971 P.2d 512 (1999) (future dangerousness aggravating factor may not be
applied in non-sex offense case).
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Standard 3-3.9 Discretion in the Charging Decision
(a) A prosecutor should not institute, or cause to be instituted, or permit the continued pendency of criminal charges when
the prosecutor knows that the charges are not supported by probable cause. A prosecutor should not institute, cause to be
instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support
a conviction.
(b) The prosecutor is not obliged to present all charges which the evidence might support. The prosecutor may in some
circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that sufficient
evidence may exist which would support a conviction. Illustrative or the factors which the prosecutor may properly
consider in exercising his or her discretion are:
(i) the prosecutor's reasonable doubt that the accused is in fact guilty;
(ii) the extent of the harm caused by the offense;
(iii) the disproportion of the authorized punishment in relation to the particular offense or the offender;
(iv) possible improper motives of a complainant;
(v) reluctance of the victim to testify;
(vi) cooperation of the accused in the apprehension or conviction of others; and
(vii) availability and likelihood of prosecution by another jurisdiction.
(c) A prosecutor should not be compelled by his or her supervisor to prosecute a case in which he or she has a reasonable
doubt about the guilt of the accused.
(d) In making the decision to prosecute, the prosecutor should give no weight to the personal or political advantages or
disadvantages which might be involved or to a desire to enhance his or her record of convictions.
(e) In cases which involve a serious threat to the community, the prosecutor should not be deterred from prosecution by the
fact that in the jurisdiction juries have tended to acquit persons accused of the particular kind of criminal act in question.
(f) The prosecutor should not bring or seek charges greater in number of degree than can reasonably be supported with
evidence at trial or than are necessary to fairly reflect the gravity of the offense.
(g) The prosecutor should not condition a dismissal of charges, nolle prosequi, or similar action on the accused's
relinquishment of the right to seek civil redress unless the accused has agreed to the action knowingly and intelligently,
freely and voluntarily, and where such waiver is approved by the court.
Excerpt from Commentary to ABA Standard
“Necessity for Probable Cause … The broad discretion given to a prosecutor in deciding whether to bring charges and in
choosing the particular charges to be made requires that the greatest effort be made to see that this power is used fairly and
uniformly … A prosecutor ordinarily should prosecute if, after full investigation, he or she finds that a crime has been
committed, the perpetrator can be identified, and there is sufficient admissible evidence available to support a verdict of
guilty …”
“Facts That May Properly Be Considered … It is axiomatic that all crimes cannot be prosecuted even if this were
desirable… A prosecutor should adopt a ‘first things first’ policy, giving greatest attention to those areas of criminal
activity that pose the most serious threat to the security and order of the community.”
“Nor is it desirable that the prosecutor prosecute all crimes at the highest degree available … The public interest is best
served and evenhanded justice best dispensed, not by the unseeing or mechanical application of the ‘letter of the law,’ but
by a flexible and individualized application of its norms through the exercise of a prosecutor’s thoughtful discretion.”
“If prosecution is sought by a private party out of malice or to exert coercion on the defendant, as is sometimes the case in
matters involving debt collection, for example, the prosecutor may properly decline to prosecute.”
“Another relevant consideration is the refusal of a victim to testify … In serious cases, however, the interests of the
community may require that the prosecutor try to obtain the victim’s cooperation and, in some instances, it may be the
prosecutor’s duty to use the subpoena power to compel attendance of the witness. In contrast, the prosecutor may
justifiably decline to prosecute less serious offenses because of lack of witness cooperation … The prosecutor should,
however, assure himself or herself that the reason a witness has become uncooperative is not because he or she is being
intimidated to act in this way …”
“Compelled Prosecution by a Supervisor. Subsection (b)(i) provides that a prosecutor exercising his or her professional
discretion may properly choose not to prosecute when he or she has a reasonable doubt about the guilt of the accused,
despite the fact that probable cause may otherwise appear to exist. Implicit in this consideration—and explicit in section
(c)—is the concomitant rule that a prosecutor should not be compelled by his or her supervisor to prosecute such a case.
Supervising prosecutors should create an atmosphere in the prosecution office where subordinate prosecutors feel free to
disclose and discuss such doubts about the guilt of an accused; in order to create such at atmosphere, supervising
prosecutors should respect the views of their subordinates even if they do not share them. Nonetheless, a case that a
prosecutor seeks not to prosecute because of doubts about guilt may properly be reassigned for prosecution to another
prosecutor in the prosecution office who does not share the first prosecutor’s doubt about the guilt of the accused.”
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“Personal Advantage Not to Be Considered. A prosecutor should avoid measuring his or her record by the ‘conviction rate’
of the office … “
“Community Indifference to Serious Crime. There are cases in which even if convictions seem quite unlikely, perhaps
because of hostile community attitudes toward the victims, a prosecutor should nonetheless proceed in the interests of
justice if satisfied that a serious crime has been committed, the offender has been identified, and the necessary evidence is
available … These actions represent more than gestures on the part of the prosecutor, for such tactics can successfully alert
the community to wrongdoing and create a community commitment to rectify the offending conditions.”
“Discretion in Selecting the Number and Degree of Charges … Defense counsel often complain that prosecutors charge a
number of different crimes, that is, ‘overcharge,’ in order to obtain leverage for plea negotiation … [T]he heart of the
criticism is the belief that prosecutors have brought charges, not in the good faith belief that they fairly reflect the gravity
of the offense, but rather as a harassing and coercive device in the expectation that they will induce the defendant to plead
guilty.”
“For the prosecutor’s point of view, the charging decision is one that must be made at a stage when all the evidence is not
necessarily in the form it will take at trial … If the facts fairly warrant multiple charges growing out of a single episode, the
prosecutor is, of course, entitled to charge broadly. A defendant accused of breaking and entering, robbery, rape, and
murder committed in a single course of conduct involving one victim can hardly complain of ‘overcharging’ if there is
evidence of conduct supporting each charge. At some state, of course, a voluntary dismissal of one or more of the lesser
charges may very well be necessary, but a prosecutor cannot fairly be criticized for charging on all tenable counts
initially.”
“The line separating overcharging from the sound exercise of prosecutorial discretion is necessarily a subjective one, but
the key consideration is the prosecutor’s commitment to the interests of justice, fairly bringing those charges he or she
believes are supported by the facts without ‘piling on’ charges in order to unduly leverage an accused to forgo his or her
right to trial.”
“Actions Premised upon Promises Not to Sue. A 5 to 4 majority of the United States Supreme Court has held that
agreements in which a prosecutor agrees to dismiss charges or take similar actions in exchange for an accused person’s
promise not to sue law enforcement officers, the governmental entity, or other government officials, are not per se void as
against public policy. As long as—and where—such agreements are lawful, it is proper for prosecutors to use them in
appropriate circumstances.”
“However, as the Supreme Court also recognized, such agreements can be used improperly, not to protect the community
against unwarranted, time-consuming, and expensive lawsuits, but rather to cover up actual incidences of law enforcement
or other governmental misconduct, including serious violations of individuals’ constitutional rights. To protect against such
abuse, a prosecutor should never seek to obtain such an agreement unless the accused has agreed to the action knowingly
and intelligently, and freely and voluntarily, and unless the agreement is approved by an appropriate judicial officer.”
RPC 3.8(a) — Probable Cause Required
“The prosecutor in a criminal case shall…[r]efrain from prosecuting a charge that the prosecutor knows is not supported by
probable cause…”
Civil Liability — Qualified vs. Absolute Immunity for Prosecutor
 Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 509-10, 139 L.Ed.2d 471 (1997) (Section 1983 action
brought against deputy prosecutor who had prepared application for arrest warrant (that included inaccurate
facts) by individual against whom charges had been dropped following his arrest in connection with a
second degree burglary; Held: only qualified immunity when prosecutor acts as a complaining witness
rather than a lawyer).
These cases make it quite clear that petitioner’s activities in connection with the preparation and filing of two of the three
charging documents — the information and the motion for an arrest warrant — are protected by absolute immunity.
Indeed, except for her act in personally attesting to the truth of the averments in the certification, it seems equally clear that
the preparation and filing of the third document in the package was part of the advocate’s function as well. The critical
question, however, is whether she was acting as a complaining witness rather than a lawyer when she executed the
certification “[u]nder penalty of perjury.”...
Although the law required that document to be sworn or certified under penalty of perjury, neither federal nor state law
made it necessary for the prosecutor to make that certification. In doing so, petitioner performed an act that any competent
witness might have performed. Even if she may have been following a practice in King County, Washington, that practice
is surely not prevalent in other parts of the country and is not even mandated by law in King County. Neither petitioner nor
amici argue that prosecutors routinely follow the King County practice. Indeed, tradition, as well as the ethics of our
profession, generally instruct counsel to avoid the risks associated with participating as both advocate and witness in the
same proceeding. [FN 17]
See, e.g., Washington Rule of Professional Conduct 3.7 (1995) (“A lawyer shall not act as advocate at a trial in
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which the lawyer … is likely to be a necessary witness,” unless four narrow exceptions apply); ABA Mode
Rules of Professional Conduct 3.7 (1992).
...Testifying about facts is the function of the witness, not of the lawyer. No matter how brief or succinct it may be, the
evidentiary component of an application for an arrest warrant is a distinct and essential predicate for a finding of probable
cause. Even when the person who makes the constitutionally required “Oath or affirmation” is a lawyer, the only function
that she performs in giving sworn testimony is that of a witness.
 Reid v. Pierce County, 136 Wn.2d 195, 961 P.2d 333 (1998) (Relatives of several decedents sued the
county and various governmental employees based on allegations that county employees had appropriated
and displayed photos of decedents’ corpses. Trial court granted summary judgment or dismissed claim in
favor of county. Supreme Court held that the plaintiffs could not maintain their claims for negligent
infliction of emotional distress or outrage because none of them were present when the photographs were
appropriated or displayed to others, and that the plaintiffs had not presented a sufficient record on which to
establish a right of action based on a constitutional right to privacy, but that the plaintiffs had stated
actionable claims for common law invasion of privacy, the court affirms the judgments in part, reverses
them in part, and remands the cases for further proceedings.) —
So that no further confusion exists, we explicitly hold the common law right of privacy exists in this state and that
individuals may bring a cause of action for invasion of that right.
Every individual has some phases of his life and his activities and some facts about himself that he does not expose to
the public eye, but keeps entirely to himself of at most reveals only to his family or to close personal friends. Sexual
relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or
humiliating illnesses, most intimate personal letters, most details of a man’s life in his home, and some of his past history
that he would rather forget. When these intimate details of his life are spread before the public gaze in a manner highly
offensive to the ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of
legitimate public interest.
[Note: Lest there was any doubt, be VERY careful with photos and other reports and evidence that you
would not want exposed “before the public gaze” if you or your family were involved. Civil liability will
attach for violation of common law privacy.]
 Conn v. Gabbert, 526 U.S. 286, 119 S.Ct. 1292, 1294, 143 L.Ed.2d 399 (1999) (Attorney for grand
jury witness in Lyle and Erik Menendez brothers case brought 1983 action against county prosecutors Conn
and Najera alleging his Fourteenth Amendment right to practice his profession was violated when
prosecutors executed search warrant on attorney at the same time his client was testifying to grand jury
[client told investigators she received letter from Lyle in which he may have instructed her to testify
falsely, and gave letter to her attorney]. Summary judgment for prosecutors affirmed in unanimous
decision.)
We granted certiorari...to decide whether a prosecutor violates an attorney’s Fourteenth Amendment right to practice his
profession when the prosecutor causes the attorney to be searched at the same time his client is testifying before a grand
jury. We conclude that such conduct by a prosecutor does not violate an attorney’s Fourteenth Amendment right to practice
his profession.
 Whatcom County v. State, 99 Wn.App. 237, 993 P.2d 273, review denied, 141 Wn.2d 1001, 10 P.3d
405 (Div. 1 2000) (A criminal defendant charged with three misdemeanors and one felony involving
violations of a protection order obtained by DV victim. After misdemeanor charges resolved, deputy
prosecutor advised jail that defendant could be released, even though felony charge and $20,000 bail
remained. Defendant released and three days later murdered DV victim. DV victim’s estate sued county
prosecutor and county for wrongful death and 42 USC § 1983 claims. Prosecutor tendered defense to
Attorney General, and was denied. Held: Prosecutor was a State officer or employee entitled to defense and
indemnification from the State. Trial court had authority to order the Attorney General to defend the
prosecutor.)
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 Rodriguez v. Perez, 99 Wn.App. 439, 994 P.2d 874, review denied, 141 Wn.2d 1020, 10 P.3d 1073
(Div. 1 2000) (Parents and children of Wenatchee “sex ring” investigation filed civil suit for negligent
investigation against law enforcement agencies. Trial court’s dismissal of claim reversed, and case
remanded for trial. New tort of negligent investigation found.)—
[In response to the government’s assertion that allowing a negligent investigation claim would lead to “absurd” result
that prosecutors would also be liable contrary to prosecutorial immunity because they are included in the definition of “law
enforcement agency” in RCW 26.44 … ] In short, whether the prosecuting attorney is entitled to immunity for acts taken
pursuant to RCW 26.44 is resolved by traditional immunity analysis. Under this analysis, only when a prosecutor engages
in functions outside the scope of prosecutorial duties do his or her actions result in exposure to the same liability as other
persons performing those same functions … Holding law enforcement agencies to a standard of negligence in child abuse
investigations should not have the effect of chilling those investigations. Rather, such a standard will encourage careful,
thorough investigations, which support the public policy of protecting children from child abuse while at the same time
preventing unwarranted interference in the parent-child relationship.
 Tanner v. Federal Way, 100 Wn.App. 1, 4-6, 997 P.2d 932 (Div. 1 2000) (Juvenile defendant detained
in jail for four days after he failed to appear. Prosecutor mistakenly filed the criminal complaint against
defendant in adult court. He sued prosecutor and city, relying on Kalina v. Fletcher. Held: prosecutor
absolutely immune.) —
It is well established that a prosecutor who acts within the scope of his or her duties in initiating and pursuing a criminal
prosecution is absolutely immune from liability. Prosecutors are immune from section 1983 federal claims as well as state
common law claims. Whether a prosecutor enjoys absolute immunity for challenged conduct depends upon the nature of
the function performed. Kalina v. Fletcher, 522 U.S. at 126, 118 S.Ct. at 508. In Kalina, the prosecutor personally vouched
under penalty of perjury for the truth of the facts set forth in the certification for determination of probable cause. The
respondent had been charged with theft of computer equipment from a school. The prosecutor certified that the
respondent’s fingerprints had been found on a glass partition in the school and that the respondent did not have permission
to enter the school or had never been associated with the school. These facts were untrue. The respondent had installed
partitions on the premises and was authorized to enter the school. The prosecutor also certified that a witness had identified
the respondent from a photo montage as the person who had asked for an appraisal of a computer stolen from the school.
This fact was also untrue. The witness did not identify the respondent. The Court reasoned that the prosecutor’s conduct in
certifying the facts in the certification was more akin to the function of a complaining witness than to the traditional
advocacy functions of a prosecutor, and held that the prosecutor did not enjoy absolute immunity.
Wohl signed a one-paragraph amended complaint accusing Tanner of the crime of failure to deliver leased personal
property. Tanner contends that Wohl, like the prosecutor in Kalina, was functioning as a complaining witness when, at the
bottom of the complaint, he signed this statement: “The above signed Prosecutor does certify, under penalty of perjury, that
he/she has reasonable grounds to believe, and does believe, that the defendant committed the offense, contrary to law.”
Tanner summarizes his argument as follows: “Wohl swore that Gary Tanner, Jr., had committed the offense of Failing to
Deliver Leased Property, contrary to law, when he knew or should have known that it was impossible for Gary Tanner, Jr.,
to violate the ordinance since he was only seventeen years old and subject to the exclusive jurisdiction of the [juvenile
court].”
We disagree with Tanner’s characterization of Wohl’s statement. First, Tanner has not shown why it is impossible for a
juvenile to violate the ordinance. Further, Wohl’s statement was not a sworn statement about Tanner’s age or other facts.
Instead, Wohl merely certified, as the prosecutor responsible for filing the complaint, that he had reasonable grounds to
believe that the accused had committed the cited offense. Initiating and signing a criminal complaint after reviewing
evidence provided by a complaining witness are functions that fall squarely within the traditional functions of a prosecutor.
Wohl may have mistakenly filed the complaint in the wrong court, but filing complaints in court is a traditional
function of the prosecutor acting as an advocate for the State. Wohl is absolutely immune for his conduct in filing
the complaint against Tanner.
(Emphasis added.)
 Kauzlarich v. Yarbrough, 105 Wn.App. 632, 20 P.3d 946, review denied, 144 Wn.2d 1007, 29 P.3d
718 (Div. 2 2001), cert. denied, 534 U.S. 1090, 122 S.Ct. 832, 151 L.Ed.2d 712 (2002) (Former husband
brought defamation action against former wife’s attorney in an underlying child custody modification case.
Div. 2 held (1) attorney’s statements to court administrator, made to obtain courtroom security, were
conditionally privileged as statements for protection of publisher, recipient, or third person; (2) former
husband failed to establish attorney abused his qualified privilege; (3) as a matter of apparent first
impression, attorney’s request to the superior court administration for security in courtroom and alleged
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statement regarding death threats made by husband were privileged communications under statute
establishing immunity for good faith communications to government agencies; (4) attorney was entitled to
award of fees under immunity statute; and (5) judge’s sua sponte recusal was not an abuse of discretion.)
[Note. Although this case stems from a custody matter and involves a private attorney, the language may be
useful to prosecutors in similar circumstances when notifying courthouse security of a possible
dangerous defendant or spectator.]
 Milstein v. Cooley, 257 F.3d 1004 (9th Cir. 2001) (Criminal defense attorney brought § 1983 action
against assistant district attorneys alleging that they framed him for suborning perjury, offered false
documents, and solicited bribery. Held that: (1) district attorneys were not entitled to absolute immunity
with regard to allegations of misconduct in acquiring known false statements, filing crime report against as
complaining witness or crime victim, or investigating purported crimes, but (2) absolute immunity applied
for their conduct in securing grand jury indictment, information, and arrest warrant.)
Civil Liability — Duty to Promptly Release Warrant Detainee Once Know or Should
Know Wrong Person Being Held
 Stalter v. State, 151 Wn.2d 148, 86 P.3d 1159 (2004) (Plaintiff was arrested on his brother’s warrant
and repeatedly told jail staff of the error. No action taken, and defendant released two days later after being
in court and determined to not be the person named on the warrant. Second plaintiff arrested on North
Carolina warrant. He had the same name, race, gender, and birth date as the person on the warrant. Plaintiff
told jail he had never been to North Carolina. Ultimately, plaintiff released. Both brought § 1983 claims
against the county. Held that genuine issue of material fact as to whether jail took steps to promptly release
detainee precluded summary judgment, and mere notice to jail that they might be holding wrong person did
not require them to investigate other detainee’s claims.) —
We granted review of a Court of Appeals decision reversing summary judgments in two Pierce County Superior Court
cases. In each case, a person who was held in the Pierce County Jail under an arrest warrant issued for another person
brought suit against Pierce County claiming damages for the detention. The principal issue before us in these consolidated
cases is whether the Court of Appeals wrongly concluded that jail personnel have a duty to investigate the identity of a jail
detainee once they have been put on notice that they may be holding the wrong individual.
We hold that the Court of Appeals erred when it concluded that mere notice to jail personnel that they may be holding the
wrong individual imposes a duty on them to investigate claims of misidentification. We determine, however, that jail
personnel do have a duty to take steps to promptly release a detainee once they know or should know, based on information
provided to them, that the person they are holding is not the person named in the arrest warrant. We, therefore, affirm the
Court of Appeals in part and reverse it in part.
SRA Charging and Plea Disposition Standards — RCW 9.94A.411(1) — Decision to
Decline
A prosecuting attorney may decline to prosecute, even though technically sufficient evidence to prosecute exists, in
situations where prosecution would serve no public interest, would defeat the underlying purpose of the law in question or
would result in decreased respect for the law.
Examples given in RCW 9.94A.411(1) of reasons not to prosecute are —
 contrary to legislative intent
 antiquated statute that (i) has not been enforced for many years and (ii) most members of society act as if no longer in
existence and (iii) it serves no deterrent or protective purpose in today’s society and (iv) it has not been recently
reconsidered by the legislature. This reason is not to be construed as a basis to decline cases because the law in question is
unpopular or because it is difficult to enforce
 de minimus violation
 confinement on other charges where accused sentenced on another charge to lengthy period of confinement and (i)
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conviction on new offense not merit additional direct or collateral punishment and (ii) new offense is either misdemeanor
or a felony which is not particularly aggravated and (iii) conviction of new offense would not serve any significant
deterrent purpose
 pending conviction on another charge where accused is facing pending prosecution in same or another county and (i)
conviction of new offense not merit an additional direct or collateral punishment and (ii) conviction in pending prosecution
is imminent and (iii) new offense is either misdemeanor or felony which is not particularly aggravated and (iv) conviction
of new offense not serve any significant deterrent purpose
 high disproportionate cost of prosecution where cost of locating, transporting or burden on prosecution witnesses is
highly disproportionate to importance of offense and case is minor
 improper motives of complainant and prosecution serves no public purpose, would defeat the underlying purpose of the
law or would result in decreased respect for the law
 immunity
 victim request in (i) assault crimes where victim suffered little or no injury or (ii) property crimes not involving violence
where no major loss suffered or (iii) crimes where declining to prosecute would not jeopardize the safety of society; care
should be taken to insure victim’s request is freely made and not product of threat or pressure by accused
“The presence of these factors may also justify the decision to dismiss a prosecution which has been commenced.”
“The prosecutor is encouraged to notify the victim, when practical, and the law enforcement personnel, of the decision not
to prosecute.”
SRA Charging and Plea Disposition Standards — RCW 9.94A.411(2) — Decision to
Prosecute
See statute for prioritization of crimes against persons, crimes against property, and other classified felonies
SRA Charging and Plea Disposition Standards — RCW 9.94A.411(2) — Selection of
Charges
(1) The prosecutor should file charges which adequately describe the nature of defendant’s conduct. Other offenses may
be charged only if they are necessary to ensure that the charges: (a) Will significantly enhance the strength of the state’s
case at trial; or (b) Will result in restitution to all victims.
(2) The prosecutor should not overcharge to obtain a guilty plea. Overcharging includes: (a) Charging a higher degree;
(b) Charging additional counts.
This standard is intended to direct prosecutors to charge those crimes which demonstrate the nature and
seriousness of a defendant’s criminal conduct, but to decline to charge crimes which are not necessary to
such an indication. Crimes which do not merge as a matter of law, but which arise from the same course of
conduct, do not all have to be charged.
Case Law — Prosecutorial Discretion — Charging Decision
 Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978) (“So long as the
prosecutor has probable cause to believe that the accused committed an offense defined by statute, the
decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests
entirely in his discretion.”).

State v. Judge, 100 Wn.2d 706, 713, 675 P.2d 219 (1984) —
Prosecutors are vested with wide discretion in determining whether to charge suspects with criminal offenses.
Bordenkircher v. Hayes; [supra], State v. Pettitt, 93 Wn.2d 288, 294, 609 P.2d 1364 (1980). Exercise of this discretion
involves consideration of factors such as the public interest as well as the strength of the case which could be proven.
United States v. Lovasco, 431 U.S. 783, 794, 52 L.Ed.2d 752, 97 S.Ct. 2044 (1977); Pettitt, at 295. The exercise of a
prosecutor’s discretion by charging some but not others guilty of the same crime does not violate the equal protection
clause of U.S. Const. amend. 14 or Const. art. 1, § 12 so long as the selection was not “deliberately based upon an
unjustifiable standard such as race, religion, or other arbitrary classification.”
 State v. Talley, 122 Wn.2d 192, 214-15, 858 P.2d 217 (1993) (where there are differing elements
between offenses “the prosecutor’s discretion is limited by consideration of which elements [can be proved
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in the particular case]”, quoting Kennewick v. Fountain, 116 Wn.2d 189, 193, 802 P.2d 1371 (1991).
 State v. Ayala, 108 Wn.App. 480, 31 P.3d 58 (Div. 3 2001), review denied, 145 Wn.2d 1031, 42 P.3d
975 (2002) (Prosecutors have wide discretion when determining whether to charge a particular offense so
long as the charge is not based on an unjustified standard such as race, religion, or other arbitrary standard
or classification.)
Case Law — Prosecutorial Discretion — Charging Decision — Civil Contempt
 State v. Horton, 54 Wn.App. 837, 776 P.2d 703 (Div. 1 1989) (defendant charged with crime of
violation of protection order, rather than seeking contempt under RCW 7.20.020; Held: prosecutor’s
decision to seek criminal charges rather than contempt did not violate equal protection clause).
Case Law — Prosecutorial Discretion — Charging Decision — Crime or Infraction
 State v. Ankney, 53 Wn.App. 393, 766 P.2d 1131 (Div. 1 1989) (ordinance allowing citing dog owner
for infraction or crime based on same conduct, dog biting someone, held no violation of equal protection
clause when animal control violation resulted in civil or criminal penalty or both).
 State v. Pollnow, 69 Wn.App. 160, 848 P.2d 1265, review denied, 121 Wn.2d 1030, 856 P.2d 382
(Div. 3 1993) (enactments permitting prosecution to seek a criminal or civil penalty or both for the
violation of a statute or ordinance do not violate a criminal defendant’s constitutional right to equal
protection.)
Case Law — Prosecutorial Discretion — Crimes Including Identical Elements
 State v. Eakins, 73 Wn.App. 271, 274-75, 869 P.2d 83 (Div. 2 1994), affirmed, 127 Wn.2d 490, 902
P.2d 1236 (1995) (defendant convicted of two counts of second degree assault with special verdict findings
imposing deadly weapon enhancement; defendant contended equal protection was violated because second
degree assault bears a more severe penalty than exhibiting a firearm, and he is being punished for the same
act; Held: offenses have different elements, so no equal protection violation, but conviction reversed on
other grounds) —
He relies on the often repeated rule that statutes imposing different punishments for the same act, violate the equal
protection clause of the Fourteenth Amendment and article 1, section 12 of the Washington State Constitution when they
purport to authorize the State to charge one person with a felony and another with a misdemeanor for the same act
committed under the same circumstances. Olsen v. Delmore, 48 Wn.2d 545, 295 P.2d 324 (1956). See also State v.
Leech, 114 Wn.2d 700, 711, 790 P.2d 160 (1990); State v. Dictado, 102 Wn.2d 277, 687 P.2d 172 (1984).…
It is firmly established that the identity of elements in two criminal statutes with disparate penalties does not violate the
equal protection clause of the Fourteenth Amendment.
[A] decision to proceed under [a statute with a greater penalty] does not empower the Government to
predetermine ultimate criminal sanctions. Rather, it merely enables the sentencing judge to impose a longer
prison sentence than [a statute with a lesser penalty] would permit.... More importantly, there is no appreciable
difference between the discretion a prosecutor exercises when deciding whether to charge under one of two
statutes with different elements and the discretion he exercises when choosing one of two statutes with identical
elements. In the former situation, once he determines that the proof will support conviction under either
statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be
influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a
violation of the Equal Protection or Due Process Clause.
United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2204, 60 L.Ed.2d 755 (1979). See Kennewick v. Fountain,
116 Wn.2d 189, 802 P.2d 1371 (1991) (overruling State v. Zornes, 78 Wn.2d 9, 475 P.2d 109 (1970)), which was
characterized as holding that statutes defining the same offense for the same conduct, but prescribing different
punishments, violate an individual’s right to equal protection).
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Case Law — Prosecutorial Discretion — Number of Counts — Double Jeopardy,
“Unit of Prosecution” & Merger

State v. Lewis, 115 Wn.2d 294, 299, 797 P.2d 1141 (1990) —
[T]he prosecutor had no duty to charge the defendant after the first delivery to the King County Police informant.
Likewise, in his discretion, the prosecutor could charge as separate counts each of the deliveries made by the defendant.
This court has held that “[w]hether the incidents are to be charged separately or brought as one charge is a decision within
the prosecutorial discretion.” State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984). In this case, charges were filed
that were necessary to reflect the nature and extent of the defendant’s criminal activity.
 State v. Knutson, 64 Wn.App. 76, 80, 823 P.2d 513 (Div. 1 1991) (“In addition, a prosecutor has broad
discretion in charging a suspect with a violation of the law and in choosing what charges to make.”).
 State v. Adel, 136 Wn.2d 629, 965 P.2d 1072 (1998) (Two counts of possession of marijuana, one
count for 0.1 gram of marijuana in defendant’s car’s ash tray, and a second count for 0.2 grams near
defendant’s business’ cash register. One count reversed due to violation of double jeopardy’s unit of
prosecution theory) —
The State’s argument that Adel violated the possession statute multiple times simply because he constructively possessed
the drug in two different places rests on a slippery slope of prosecutorial discretion to multiply charges. How far apart do
drugs have to be kept to constitute ‘separate’ stashes? Under the State’s theory it seems a defendant could be convicted of
three counts of possession if the drug was found in the defendant’s sock, pant pocket, and purse--each ‘location’ being a
‘separate’ place. A reasonable person would respond that all the drugs found were on the defendant’s person, and the drugs
could not be segregated by the different locations on the defendant’s person to justify separate convictions. The same
reasonable response can be made in Adel’s situation: All of the drugs found in this case were within Adel’s dominion and
control at the same time. The possession statute does not authorize multiple convictions based upon a drug being stashed in
multiple places within a defendant’s actual or constructive possession.
Talmadge, J., concurring—
I concur specially to emphasize the unit of prosecution approach to double jeopardy is necessarily one that must develop
on a case-by-case basis. There may be circumstances in future cases where the jurisdictional or temporal differences in the
possession of illegal substances may be so great as to suggest completely distinct units of prosecution. For example, if a
person were arrested in Seattle for possessing 20 grams of marijuana, and Spokane police served a search warrant on the
person’s Spokane residence and found 15 grams of marijuana on that same day, two distinct units of prosecution might
exist. Similarly, if a person were in possession of 20 grams of marijuana and used the substance in its entirety, and,
thereafter, several days later acquired another 15 grams of marijuana for personal use, two distinct units of prosecution are
likely present under such circumstances.
The unit of prosecution approach to analyzing double jeopardy is appropriate, but is not completely without difficulty in
its application. Compare, Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L. Ed. 905 (1955), and Ebeling v. Morgan,
237 U.S. 625, 35 S.Ct. 710, 59 L. Ed. 1151 (1915). We must be sensitive to different factual patterns in utilizing the unit of
prosecution approach to determine if there is multiple punishment for purposes of the double jeopardy clause.
 State v. Soonalole, 99 Wn.App. 207, 992 P.2d 541, review denied, 141 Wn.2d 1028, 11 P.3d 827 (Div.
1 2000) (Multiple counts of child molestation 3. Convictions affirmed.)
 State v. Turner, 102 Wn.App. 202, 6 P.3d 1226 (Div. 1 2000), review denied, 143 Wn.2d 1009, 21
P.3d 290 (2001) (Three counts first degree theft based on defendant’s multiple thefts by different methods
over same period of time from employer. Two convictions reversed since theft statute ambiguous on issue,
and rule of lenity supports position that legislature did not intend multiple punishments for thefts
committed by different schemes over the same period of time from the same victim.)
 State v. Root, 141 Wn.2d 701, 9 P.3d 214 (2000) (Six counts of first degree child rape and 73 counts of
sexual exploitation of a minor. Some convictions violated “unit of prosecution” for sexual exploitation
since the correct “unit of prosecution” is per photo session per minor involved. Remanded for resentencing
on 24 convictions (21 sessions took place involving 3 children) and remaining 49 convictions vacated.)
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 In re Davis, 142 Wn.2d 165, 12 P.3d 603 (2000) (Two counts of possession of marijuana with intent to
manufacture based on two separate grow operations located in separate cities. No unit of prosecution
double jeopardy violation.)
 State v. Timothy K., 107 Wn.App. 784, 27 P.3d 1263 (Div. 1 2001) (Second degree malicious mischief
and malicious harassment for damaging victim’s vehicle with pair of pliers while making derogatory
comments toward the victim on other occasions. Held prosecution for both offenses did not violate double
jeopardy.) —
The double jeopardy clauses of the Fifth Amendment and Const. Art. 1, § 9 *788 prohibit multiple punishments for the
same offense. State v. Calle, 125 Wash.2d 769, 772, 888 P.2d 155 (1995) (citing State v. Noltie, 116 Wash.2d 831, 848,
809 P.2d 190 (1991)). "Within constitutional constraints, the legislative branch has the power to define criminal conduct
and assign punishment for such conduct. Therefore, the question whether punishments imposed by a court, following
conviction upon criminal charges, are unconstitutionally multiple cannot be resolved without determining what
punishments the legislative branch has authorized." Id. at 776, 888 P.2d 155 (citing Whalen v. United States, 445 U.S. 684,
688-89, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980)). To determine whether our Legislature authorized punishment for
malicious harassment and second degree malicious mischief, both arising out of the same conduct, we are guided by our
Supreme Court's detailed analysis in Calle. There, the Court outlined a three-pronged test for determining legislative intent.
First, if the express language of the statutes allows for or prohibits convictions for each charge arising out of the same act,
that ends the inquiry. 125 Wash.2d at 776, 888 P.2d 155. Second, if the express language is silent, then under the "same
evidence" or the Blockburger [FN1] rule of statutory construction, if each offense, as charged, includes elements not
included in the other, there is a strong presumption that the Legislature authorized multiple punishments for the charges.
125 Wash.2d at 776-81, 888 P.2d 155. And third, notwithstanding such presumption, if there is clear evidence of a contrary
legislative intent, then that contrary intent controls. Id. at 778-81, 888 P.2d 155.
 State v. Westling, 145 Wn.2d 607, 40 P.3d 669 (2002) (Three counts of arson from one fire. Defendant
mad at girlfriend’s teacher and set teacher’s car on fire. Two adjacent vehicles also burned. Two
convictions reversed. Held that multiple convictions are proper only where the facts of the case support
multiple units of prosecution committed. Here, only one unit, the fire, committed.)
 State v. McReynolds, 117 Wn.App. 309, 71 P.3d 663 (Div. 3 2003) (Possession of stolen property from
several owners was signle act consituting one offense, and thus multiple convictions for first and second
degree possession of stolen property violated double jeopardy, where defendants were charged with
continuous possesion of various property during a period of 15 days.) —
Here, the State charged the McReynoldses with continuous possession of various property during a period of 15 days. The
unit of prosecution thus is a single possession. The separate convictions for the single possession violated the prohibition
against double jeopardy.
 State v. A.G., 117 Wn.App. 462, 72 P.3d 226 (Div. 1 2003) (As matter of first impression, legislature
did intend one unit of prosecution per victim under reckless endangerment statute, and thus double
jeopardy did not prevent juvenile from being convicted on three counts of reckless endangerment arising
out of a fatal one-car accident involving three passengers in her vehicle.)
 State v. Jones, 117 Wn.App. 721, 72 P.3d 1110 (Div. 1 2003), review denied, 151 Wn.2d 1006, 87
P.3d 1184 (2004) (Double jeopardy barred multiple convictions for possession of cocaine and attempted
possession of cocaine) —
Jones argues that under State v. Adel, [FN1] his convictions for possession of cocaine and attempted possession of cocaine
violate state and federal double jeopardy guarantees. The State counters that because Jones was convicted under two
separate statutes, Adel does not apply. Rather, the "same evidence" test applies, and double jeopardy was not violated
because his convictions were not the same in fact. We conclude that while technically Jones' convictions were based on
separate statutes, the unit of prosecution test applies under the circumstances presented here, and therefore his convictions
twice expose him to jeopardy….
We conclude, as the court did in Adel, that a single unit of prosecution was involved in the charged course of conduct. The
conduct occurred at the same time and place, and was charged, albeit in two separate counts, as a violation of the same
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criminal statute, RCW 69.50.401(d). We therefore reverse the lesser conviction of attempted possession, and remand for
resentencing on the remaining conviction. [FN11]
FN11. Jones argues that the proper remedy for the double jeopardy violation is vacation of count II, the
possession of cocaine count. This position is unsupported by case law. The appropriate remedy for a double
jeopardy violation is vacation of the "lesser" conviction. State v. Portrey, 102 Wash.App. 898, 906-07, 10 P.3d
481 (2000); see also State v. Hinz, 22 Wash.App. 906, 912-13, 594 P.2d 1350 (1979), aff'd, 93 Wash.2d 510,
610 P.2d 1322 (1980) (concluding that "[s]ince attempted rape in the second degree is a class C felony ...
whereas assault in the second degree is a class B felony ... it is the conviction of the lesser offense of attempted
rape in the second degree which will be set aside.").
 State v. Williams, 118 Wn.App. 178, 73 P.3d 376 (Div. 2 2003) (Prosecutions for five counts of
forgery were each based on a different unit of prosecution, and thus double jeopardy not violated.) —
This statute plainly and unambiguously defines the unit of prosecution as the written instrument that is falsely made or put
off as true. Here, each of the five counts was based on a different written instrument. Thus, each involved a different unit of
prosecution, and none abridged Williams' right against double jeopardy.
 State v. Cole, 117 Wn.App. 870, 73 P.3d 411 (Div. 1 2003), review denied, 151 Wn.2d 1005, 87 P.3d
1185 (2004) (Attempted first degree robbery and second degree assault, both arising from use of a knife,
did not violate double jeopardy.)
 In re Percer, 150 Wn.2d 41, 75 P.3d 488 (2003) (Conviction for felony murder after guilty plea to
vehicular homicide did not violate double jeopardy.)
 State v. Meas, 118 Wn.App. 297, 75 P.3d 998 (Div. 2 2003), review denied, 151 Wn.2d 1020, 91 P.3d
95 (2004) (Aggravated first degree murder and first degree felony murder are two different offenses. They
are not different means of committing the same offense or greater or lesser offenses. Double jeopardy not
violated by charging and conviction for both crimes.)
 State v. Baldwin, 150 Wn.2d 448, 78 P.3d 1005 (2003) (Three counts identity theft and two forgery
counts. Because the elements of these crimes are not the same, there is a strong presumption the legislature
authorized multiple punishments. Since different victims, convictions affirmed.) —
In Potter, the court held that the defendant's conviction for reckless endangerment and reckless driving violated double
jeopardy "because the State necessarily had to prove reckless driving [in order] to prove reckless endangerment." Potter, 31
Wash.App. at 886, 645 P.2d 60. The same cannot be said here because, as Baldwin concedes, "it is possible to commit
identity theft without committing forgery." Pet. for Review at 10. As we have indicated, proof of theft of identity would not
necessarily prove forgery and, thus, the two crimes are not the same in law. Furthermore, Baldwin's contention, which
relies on Potter, that her convictions violate legislative intent fails. We say that because Baldwin does not present any
historical or legislative history of the forgery *457 and identity theft statutes which demonstrates intent on the part of the
legislature to authorize only one punishment for the offenses. The double jeopardy provisions of the state and federal
constitutions are, therefore, not violated.
In addition, we believe the Court of Appeals was correct in concluding that when offenses harm different victims, the
offenses are not factually the same for purposes of double jeopardy. State v. McJimpson, 79 Wash.App. 164, 169, 901 P.2d
354 (1995). Here, Allshouse was the victim of identity theft, Global Holdings was the victim of the forged deed of trust,
and Masin and Swadberg were the victims of the forged subordinate deed of trust. Because the offenses were not factually
identical, the multiple convictions did not violate double jeopardy.
 State v. Kinneman, 120 Wn.App. 327, 84 P.3d 882 (Div. 1 2003), review denied, 152 Wn.2d 1022, 101
P.3d 108 (2004) (Charging attorney defendant with multiple counts of first and second degree theft for
taking money from IOLTA did not violate double jeopardy.) —
Kinnemann was convicted of 28 counts of first degree theft under RCW 9A.56.030(1)(a) and 39 counts of second degree
theft under RCW 9A.56.040. When a double jeopardy challenge relates to multiple convictions under the same statute, the
proper inquiry is what "unit of prosecution" the Legislature intended as the punishable act when enacting the criminal
statute. State v. Bobic, 140 Wash.2d 250, 261, 996 P.2d 610 (2000). The unit of prosecution refers to the scope of the
criminal act. Adel, 136 Wash.2d at 634, 965 P.2d 1072. "When the Legislature defines the scope of a criminal act (the unit
of prosecution), double jeopardy protects a defendant from being convicted twice under the same statute for committing
just one unit of the crime." Adel, 136 Wash.2d at 634, 965 P.2d 1072. If the Legislature's intent regarding the unit of
prosecution is unclear, the rule of lenity requires the court to construe the ambiguity in the defendant's favor. Bobic, 140
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Wash.2d at 261-62, 996 P.2d 610.
Kinneman argues that the theft statutes under which he was charged are ambiguous as to the unit of prosecution. Kinneman
therefore contends the rule of lenity requires that he be charged with one count of theft instead of 67 counts….
Turner does not change the well-established rule that prosecutors have considerable latitude to either aggregate charges or
to bring multiple charges. [FN4] In State v. Perkerewicz, 4 Wash.App. 937, 938, 486 P.2d 97 (1971), the defendant
embezzled money from her employer's cash registers over a two month period. She appealed on the grounds that the State's
division of her act into two grand larceny charges, based on the business's accounting practice of resetting the *888 register
to zero at the beginning of each month, was arbitrary. Perkerewicz, 4 Wash.App. at 942, 486 P.2d 97. The Court of
Appeals affirmed, finding that the State's division of charges was not in error. Perkerewicz, 4 Wash.App. at 942, 486 P.2d
97.
Similarly, the record here contains sufficient evidence to support a finding that each of Kinneman's withdrawals constituted
a separate theft. Initially, Kinneman lawfully held the funds in his IOLTA account in trust. To the extent that he made
authorized withdrawals for payments to third party lien holders as directed by his client, he exercised lawful control of the
funds in the account. No theft of any portion of the funds occurred until the point in time at which Kinneman made an
unauthorized removal of that sum from the IOLTA account. These withdrawals were spread over a 16-month period. The
thefts occurred in the same place from the same victim. However, the thefts did not occur at the same time. Accordingly,
each separate withdrawal can be viewed as a discrete theft.
The unit of prosecution under RCW 9A.56.030(1)(a) for first degree theft was $1,500, and under RCW 9A.56.040(1)(a) for
second degree theft was $250, for each unauthorized withdrawal. The State had the discretionary authority to charge
Kinneman with a separate count of theft for each discrete, unauthorized withdrawal he made from his IOLTA account. He
was not subject to double jeopardy for 67 theft convictions where each was based on a discrete, unauthorized withdrawal.
 State v. Saunders, 120 Wn.App. 800, 86 P.3d 232 (Div. 2 2004) (Robbery, kidnapping and rape
independent intent from murder. Merger not required, but rape and kidnapping were same criminal conduct
for calculating offender score.) —
The merger doctrine prevents "pyramiding the charges." Johnson, 92 Wash.2d at 676, 600 P.2d 1249. Courts use the
merger doctrine as a tool of statutory construction to determine when the legislature intends multiple punishments to apply
to particular offenses. The doctrine applies where "the Legislature has clearly indicated that in order to prove a particular
degree of crime (e.g., first degree rape) the State must prove not only that a defendant committed that crime (e.g., rape) but
that the crime was accompanied by an act [that] is defined as a crime elsewhere in the criminal statutes (e.g., assault or
kidnapping)." State v. Deryke, 110 Wash.App. 815, 823, 41 P.3d 1225 (2002) (quoting State v. Vladovic, 99 Wash.2d 413,
421, 662 P.2d 853 (1983)), aff'd, 149 Wash.2d 906, 73 P.3d 1000 (2003). Merger applies "only when a crime is elevated to
a higher degree by proof of another crime proscribed elsewhere in the criminal code." State v. Parmelee, 108 Wash.App.
702, 710, 32 P.3d 1029 (2001)….
Courts apply an exception to this merger doctrine on a case-by-case basis; it turns on whether the predicate and charged
crimes are sufficiently "intertwined" for merger to apply. Johnson, 92 Wash.2d at 681, 600 P.2d 1249; State v. Peyton, 29
Wash.App. 701, 720, 630 P.2d 1362 (1981). Thus, in Peyton, this court determined that the underlying offense of robbery
did not merge with first degree felony murder because the robbery was a "separate and distinct act independent of the
killing." 29 Wash.App. at 720, 630 P.2d 1362 (where officer was shot when defendant was fleeing from robbing a bank).
But in Johnson, the kidnapping conviction merged into the rape conviction.
In Johnson, two girls voluntarily went with Johnson to his home. 92 Wash.2d at 672, 600 P.2d 1249. He summoned one
girl to the bathroom where he declared his intention to rape her, held a knife to her neck, and bound her hands and mouth
with adhesive tape. Johnson, 92 Wash.2d at 672, 600 P.2d 1249. He then similarly restrained the other girl, and raped both
victims. Johnson, 92 Wash.2d at 672-73, 600 P.2d 1249. Johnson left to buy cigarettes, came back, and then took one of
the girls to a wooded area where he raped her again. Johnson, 92 Wash.2d at 673, 600 P.2d 1249.
The Johnson Court found that the kidnapping was not separate and distinct from, but was merely incidental to the rape;
thus, the kidnapping conviction merged with the rape conviction. This holding was based on facts showing that:
(1)the rape and kidnapping "occurred almost contemporaneously in time and place";
(2)the "sole purpose of the kidnapping and assault was to compel the victims' submission to the acts of sexual
intercourse"; and
(3)there was "no injury independent of or greater than the injury of rape."
Johnson, 92 Wash.2d at 681, 600 P.2d 1249. Applying these three factors to the facts and convictions here, the predicate
crimes and the murder are not sufficiently intertwined for application of the merger doctrine.
1. Robbery
In Peyton, we declined to merge the offenses of robbery and felony murder because "the crime of robbery was a separate
and distinct offense from the felony-murder of which it forms an element." 29 Wash.App. at 720, 630 P.2d 1362. In
Peyton, the defendant fled from a robbery and while police pursued him and his co-conspirators, an officer was fatally shot.
29 Wash.App. at 704-05, 630 P.2d 1362. We held that unlike Johnson, the predicate offense was not "intertwined" with the
greater offense. Peyton, 29 Wash.App. at 720, 630 P.2d 1362.
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Here, although the robbery and murder may have occurred close in time and place, the other Johnson factors indicate that
merger of these two offenses is unwarranted. The record shows that Saunders and Williams committed the robbery after
the murder and that they did not commit the robbery to facilitate the murder. Further, Grissett sustained an independent
injury from the robbery, the theft of her watch. Thus, the robbery was separate and distinct from the murder.
2. Kidnapping
We next consider whether the Johnson factors support merging the kidnapping into the murder charge. The evidence in this
case is that Saunders and/or Williams bound Grissett's legs and wrists with shackles, that they taped her mouth shut, and
that they forcibly applied these restraints well in advance of the murder.
As in Johnson, the restraint and murder occurred at the same place and apparently within hours of each other. 92 Wash.2d
at 672-73, 600 P.2d 1249. But unlike in Johnson, the kidnapping had a purpose and injury separate from the murder.
According to the record, Saunders did not kidnap Grissett to facilitate the murder. Rather, Saunders and/or Williams
restrained her to humiliate her and to retaliate for her refusal to comply with Saunders's sexual demands. The jury based its
kidnapping conviction on a finding that Saunders acted with the intent to inflict extreme mental distress on Grissett. This
extreme prolonged distress, along with the bruising around her wrists and ankles, indicates injuries independent from and
beyond those perpetrated as part of the murder. Thus, the kidnap was separate and distinct from the murder.
3. Rape
The above analysis also shows that the rape was not "merely incidental" to the murder. Because the State could not obtain
clear facts as to the timing of the events that night, we can only assume that the rape and murder occurred close in time and
place. But Grissett clearly sustained independent harm exceeding that necessary to commit the murder.
Saunders and/or Williams raped Grissett with a television antenna, causing her to bleed from her anus. This injury was
distinguishable from the subsequent murder and the conduct did not facilitate the murder. Thus, once again, the rape was
separate and distinct from the murder. Consequently, counsel was not ineffective for failing to argue that the predicate
crimes merged into the murder.
 State v. Tanberg, 121 Wn.App. 134, 87 P.3d 788 (Div. 1 2004) (Imposition of sentences for both first
degree robbery and second degree assault did not violate double jeopardy.)
 State v. Leyda, 122 Wn.App. 633, 94 P.3d 397 (Div. 1 2004), review granted, ___ Wn.2d ___, 110
P.3d 755 (Mar. 29, 2005) (Separate convictions on four counts of identity theft arising from each use of
single stolen credit card did not violate double jeopardy.)
 In re Orange, 152 Wn.2d 795, 100 P.3d 291 (2004) (Convictions of first degree attempted murder and
first degree assault of the same victim violated double jeopardy. Convictions of first degree attempted
murder of first victim and murder of second victim did not violate double jeopardy.)
 State v. Smith, 124 Wn.App. 417, 102 P.3d 158 (Div. 2 2004) (Three counts of second degree assault
for firing one bullet into vehicle containing three individuals. Separate assault count for each victim
proper.)
 State v. Graham, 153 Wn.2d 400, 103 P.3d 1238 (2005) (Reckless endangerment. One unit of
prosecution per victim. Double jeopardy not violated by three counts of reckless endangerment for three
victims resulting from one-vehicle accident.)

State v. Freeman, 153 Wn.2d 765, 108 P.3d 753 (2005) (Assault in furtherance of robbery.)—
In both of the cases before the court today, the defendants committed an assault in furtherance of first degree robbery. In
both cases, the trial courts entered separate convictions for both the assault and the robbery. Different divisions of the
Court of Appeals affirmed in one case and reversed in the other. We affirm the Court of Appeals in each case. …
There is no evidence in the record to support a conclusion that the violence used by Freeman to complete the robbery was
"gratuitous," or done to impress Freeman's friends, or had some other and independent purpose or effect. Using force to
intimidate a victim into yielding property is often incidental to the robbery. Prater, 30 Wash.App. at 516, 635 P.2d 1104.
The grievousness of the harm is not the question. See Read, 100 Wash.App. at 791-92, 998 P.2d 897. While the trial court
noted in his oral ruling that Freeman may have shot Pitchford to impress his friends, it was not found by the jury. Based on
the crime charged and proved, Freeman shot Pitchford to facilitate the robbery. This exception would not apply.
Similarly, this exception would not apply in Zumwalt's case. We are not without sympathy to the fact Zumwalt inflicted
severe harm on his victim. However, the decision on what to charge is vested with the prosecutor, and the fact the violence
used was excessive even in relation to the crime charged is not an appropriate basis for avoiding merger, although it may of
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course be considered in sentencing or in seeking an exceptional sentence. …
We conclude that the legislature did intend to punish first degree assault and first degree robbery separately, as the "lesser"
crime has the greater standard range sentence. We also conclude that a case by case approach is required to determine
whether first degree robbery and second degree assault are the same for double jeopardy purposes. Generally, it appears
that these two crimes will merge unless they have an independent purpose or effect. We affirm both divisions of the Courts
of Appeals and remand Zumwalt's case to the trial court for resentencing. Given our disposition, we do not reach the
remaining issues.
Case Law — Limitation on Charging Decision — After Mistrial
 State v. Anderson, 96 Wn.2d 739, 740-42, 638 P.2d 1205, cert. denied, 459 U.S. 842, 103 S.Ct. 93, 74
L.Ed.2d 85 (1982) (prosecutor prohibited from filing additional related charges after mistrial due to failure
to join offenses in first trial) —
Dismissal is mandated by the State’s failure to comply with Superior Court Criminal Rules CrR 4.3 relating to joinder of
offenses. CrR 4.3(c)(1) provides that offenses are related if based upon the same conduct and are within the jurisdiction
and venue of the same court.
The consequences of the State’s failure to join related offenses are set forth in CrR 4.3(c)(3):
A defendant who has been tried for one offense may thereafter move to dismiss a charge for a related
offense ... The motion to dismiss ... shall be granted unless the court determines that because the prosecuting
attorney 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.
…The protection against double jeopardy protects a citizen from being placed in the hazardous position of standing trial
more than once for the same offense. Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957).
If the appellate court reverses a conviction and remands for a new trial, the double jeopardy clause is ordinarily not
offended. United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964). Nor is the protection offended
when the first trial is on a defective information. State v. Burns, 54 Wash. 113, 102 P. 886 (1909). However, if an
appellate court reverses a conviction based upon insufficiency of the evidence, a retrial is not permissible under this
doctrine. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981); Burks v. United States, 437 U.S. 1, 98
S.Ct. 2141, 57 L.Ed.2d 1 (1978). If the reversal is not for insufficiency of evidence, the defendant may be retried for the
convicted offense and any lesser included offenses. Defendant may not, however, be retried on an offense of a higher
degree because he has implicitly been acquitted of the higher degrees of the crime. See State v. Schoel, 54 Wn.2d 388, 341
P.2d 481 (1959); State v. Murphy, 13 Wash. 229, 43 P. 44 (1895); 3 C. Torcia, Wharton on Criminal Evidence § 655 (13th
ed. 1972).
 State v. Guttierrez, 92 Wn.App. 343, 961 P.2d 974 (Div. 1 1998) (State is permitted to amend charging
document after mistrial to allege school zone sentencing enhancement since a sentencing enhancement is
not a criminal (“related”) offense under CrR 4.3A(b)(3)).
 State v. Ahluwalia, 143 Wn.2d 527, 22 P.3d 1254 (2001) (After mistrial declared when jury acquitted
on first degree murder and hung on lesser included offense of second degree murder, defendant convicted
of second degree murder. Conviction affirmed because the constitution does not prohibit retrial on hung
offense. Although not raised by the defense, court questions the prosecutor’s failure to refile an amended
charging document actually charging second degree murder after the hung jury since defendant was never
formally charged with second degree murder.)
Case Law — Limitation on Charging Decision — After State Rests
 State v. Peterson, 133 Wn.2d 885, 948 P.2d 381 (1997) (State may always amend charges to an
inferior degree, even after all evidence is taken (i.e. after defense rests).
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Case Law — Limitation on Charging Decision — Fixed Formula Prohibited
 State v. Pettitt, 93 Wn.2d 288, 296, 609 P.2d 1364 (1980) (prosecutor had mandatory policy of filing
habitual criminal complaints against all defendants with 3 or more prior felonies; Held: “In our view, this
fixed formula which requires a particular action in every case upon the happening of a specific series of
events constitutes an abuse of the discretionary power lodged in the prosecuting attorney.”).
 State v. Massey, 60 Wn.App. 131, 138-39, 803 P.2d 340, review denied, 115 Wn.2d 1021, 802 P.2d
126 (Div. 2 1990), cert. denied, 499 U.S. 960, 111 S.Ct. 1584, 113 L.Ed.2d 648 (1991) (defense claim that
prosecutor had mandatory policy of seeking declination hearing in all juvenile cases involving first degree
murder rejected due to evidence that a declination hearing was not sought in a first degree murder case
involving a 12 1/2 year old defendant).
Case Law — Limitation on Charging Decision — Forcing Speedy Trial Waiver
 State v. Michielli, 132 Wn.2d 229, 937 P.2d 587 (1997) (trial court’s dismissal of three counts of
trafficking in stolen property upheld under CrR 8.3(b) where prosecutor waited until 3 business days before
trial to amend charges, resulting in defendant having to choose between going to trial unprepared or
waiving his right to a speedy trial and asking for a continuance) —
Two things must be shown before a court can require dismissal of charges under CrR 8.3(b). First, a defendant must
show arbitrary action or governmental misconduct. State v. Blackwell, 120 Wn.2d 822, 831, 845 P.2d 1017 (1993) (citing
State v. Lewis, 115 Wn.2d 294, 298, 797 P.2d 1141 (1990)). Governmental misconduct, however, “need not be of an evil
or dishonest nature; simple mismanagement is sufficient.” Blackwell, 120 Wn.2d at 831 (emphasis added). Absent a
showing of arbitrary action or governmental misconduct a trial court cannot dismiss charges under CrR 8.3(b)…
The second necessary element a defendant must show before a trial court can dismiss charges under CrR 8.3(b) is
prejudice affecting the defendant’s right to a fair trial. See State v. Cannon, 130 Wn.2d 313, 328, 922 P.2d 1293 (1996).
Such prejudice includes the right to a speedy trial and the “right to be represented by counsel who has had sufficient
opportunity to adequately prepare a material part of his defense.…” State v. Price, 94 Wn.2d 810, 814, 620 P.2d 994
(1980).
A trial court’s power to dismiss charges is reviewed under the manifest abuse of discretion standard. See State v.
Warner, 125 Wn.2d 876, 882, 889 P.2d 479 (1995).…
A brief review of the pleadings and the record before the court shows Defendant successfully supported his CrR 8.3(b)
claim. Defendant proved the two elements which must be shown for a court to dismiss charges.
Defendant failed to convince the trial court that the prosecutor’s late amendment of the charges was due to prosecutorial
vindictiveness. However, simple governmental mismanagement satisfies the “misconduct” element. Blackwell, 120
Wn.2d at 831. The facts of this case demonstrate governmental mismanagement.…
…Despite this [having all facts necessary to charge additional counts months earlier], the State filed only one theft charge
in July and delayed over three months before adding the four other charges, just five days before trial was scheduled to
begin. These facts strongly suggest that the prosecutor’s delay in adding the extra charges was done to harass
Defendant. There appears to be no other reasonable explanation for why the prosecutor waited until five days before trial
to add the new charges, when the prosecutor admittedly possessed all the information and evidence to support those
charges in July 1993, if not earlier.
A deputy prosecutor submitted an affidavit in which he states, “Having been informed that this case absolutely would be
going to trial I made a tactical decision regarding what charges would have the best chance of success in front of a jury.”
Clerk’s Papers at 20. However, the State knew as of September 2, 1993, that Defendant desired a trial. Nonetheless, the
State delayed eight more weeks before adding the four charges for which the State had long possessed all the evidence.
The long delay, without any justifiable explanation, suggests less than honorable motives.
Normally, the court may permit the State to amend the information any time before a verdict if such amendment does not
prejudice the substantial rights of the defendant. CrR 2.1(d). Such prejudice is present in this case, thereby warranting a
CrR 8.3(b) dismissal.
Defendant was prejudiced in that he was forced to waive his speedy trial right and ask for a continuance to prepare for
the surprise charges brought three business days before the scheduled trial.…The prosecutor delayed adding four serious
charges until three business days before the trial without any justification, thereby giving Defendant the choice of going to
trial unprepared, or waiving his right to a speedy trial and asking for a continuance.…
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Defendant’s being forced to waive his speedy trial right is not a trivial event. This court, “as a matter of public policy[,]
has chose to establish speedy trial time limits by court rule and to provide that failure to comply therewith requires
dismissal of the charge with prejudice. State v. Duggins, 68 Wn.App. 396, 399-400, 844 P.2d 441 (1993). The State’s
delay in amending the charges, coupled with the fact that the delay forced Defendant to waive his speedy trial right in order
to prepare a defense, can reasonably be considered mismanagement and prejudice sufficient to satisfy CrR 8.3(b).
The State argued to the trial court that prosecutors have “almost unfettered discretion to charge those things that it thinks
it can prove.” Although prosecutors are allowed much discretion, CrR 8.3(b) exists “to see that one charged with crime is
fairly treated.” State v. Whitney, 96 Wn.2d 578, 580, 637 P.2d 956 (1981) (emphasis added). In this case the State
expressly admits that it had all of the information and evidence necessary to file all of the charges in July 1993. Despite
this, the State delayed bringing the most serious of those charges for months, and did so only five days (three business
days) before the scheduled trial. Even though the resulting prejudice to Defendant’s speedy trial might may not have been
extreme, the State’s dealing with Defendant would appear unfair to any reasonable person.…
 State v. Teems, 89 Wn.App. 385, 948 P.2d 1336 (Div. 3 1997), review denied, 136 Wn.2d 1003, 966
P.2d 902 (1998) (trial court’s dismissal of felony possession of marijuana case affirmed; Held: State’s act
of giving notice of filing of charges to defense attorney after mistrial, where prosecutor previously signed
order allowing counsel to withdraw, constituted misconduct where defense attorney not appointed until 12
days before trial).
 State v. Pettus, 89 Wn.App. 688, 951 P.2d 284, review denied, 136 Wn.2d 1010, 966 P.2d 904 (Div. 2
1998) (trial court denial of motion to dismissed upheld) —
Generally, the court may allow amendment of a criminal charge at any time before verdict, provided the amendment
does not prejudice the substantial rights of the defendant. CrR 2.1(d); State v. Pelkey, 109 Wn.2d 484, 490-91, 745 P.2d
854 (1987)....
Here, the court granted several continuances. During one of these continuances, the State moved to amend the
information to add the delivery charge. As the continuances tolled the running of the speedy trial period, the State added
the new charge within the speedy trial period.
 State v. Ralph Vernon G., 90 Wn.App. 16, 950 P.2d 971 (Div. 3 1998) (some convictions for child sex
abuse reversed) (here, unlike in Michielli, trial court did not grant defense motion to dismiss but Div. 3
reversed convictions reasoning that the delay in bringing additional charges while hold-back charges were
being used to persuade defendant to take plea offer or waive speedy trial is a failure to act with due
diligence).
 State v. Miller, 92 Wn.App. 693, 702-3, 964 P.2d 1196 (Div. 2 1998), review denied, 137 Wn.2d 1023,
980 P.2d 1282 (1999) —
Before charges can be dismissed under CrR 8.3(b), the defendant must show (1) arbitrary action or governmental
misconduct and (2) prejudice affecting the defendant’s right to a fair trial. State v. Michielli, 132 Wn.2d 229, 239-40, 937
P.2d 587 (1997); State v. Koerber, 85 Wn.App. 1, 4, 931 P.2d 904 (1997). The trial court’s ruling on such a motion to
dismiss is discretionary and reviewable only for manifest abuse of discretion, i.e. the trial court’s decision is manifestly
unreasonable, is exercised on untenable grounds, or for untenable reasons. Michielli, 132 Wn.2d at 240; State v. Blackwell,
120 Wn.2d 822, 830, 845 P.2d 1017 (1993); State v. Barnes, 85 Wn.App. 638, 655, 932 P.2d 669, review denied, 133
Wn.2d 1021 (1997). Dismissal is an extraordinary remedy, not warranted unless the defendant shows prejudice....
Here, Miller was not prejudiced by the trial court’s refusal to dismiss the remaining charges. First, he did not accept the
plea bargain. Second, the State was not allowed to amend the information to include second degree assault, and the
unlawful possession of a firearm charge was dismissed. Third, the charges of attempted theft of a firearm and third degree
assault are supported by the evidence. Therefore, we find no abuse of discretion in the trial court’s refusal to dismiss all of
the charges.
 State v. Earl, 97 Wn.App. 408, 984 P.2d 427 (Div. 2 1999) (defendant moved for and granted
continuance beyond speedy trial when State amended information on day set for trial to add second count
of child rape involving second victim; Held: Both convictions reversed since speedy trial period on first
count was not tolled during period requested by defendant as a result of State’s tardy amendment of
information, and speedy trial on second count, which arose out of same criminal episode (both victims
present at same time when rapes occurred) ran from same time as first count).
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Case Law — Limitation on Charging Decision — General vs. Specific Crimes
 State v. Shriner, 101 Wn.2d 576, 580, 681 P.2d 237 (1984) (defendant who failed to return rental car
was improperly charged and convicted under first-degree theft statute, since he should have been charged
under special criminal possession of a rented motor vehicle statute) —
It is a well established rule of statutory construction that “where a special statute punishes the same conduct which is
punished under a general statute, the special statute applies and the accused can be charged only under that statute.” State v.
Cann, 92 Wn.2d 193, 197, 595 P.2d 912 (1979). It is not relevant that the special statute may contain additional elements
not contained in the general statute; i.e., notice. The determining factor is that the statutes are concurrent in the sense that
the general statute will be violated in each instance where the special statute has been violated.

State v. Mierz, 127 Wn.2d 460, 478, 901 P.2d 286 (1995) —
Where conduct falls within the scope of two criminal statutes, the accused only may be charged under the more specific
(or “special”) statute and may not be charged under the more general statute.
 State v. Rainford, 86 Wn.App. 431, 440-41, 936 P.2d 1210, review denied, 133 Wn.2d 1019, 948 P.2d
387 (Div. 2 1997) (special statute setting forth offense of possession of controlled substance by inmate was
not concurrent with general statute setting forth offense of possession of a controlled substance) —
If a general and a special statute are concurrent, the accused can be charged only under the special statute. Criminal
statutes are considered concurrent if a general statute is violated whenever a special statute is violated, regardless of
whether the special statute may contain additional elements not contained in the general statute. In other words, “the
special statute will supersede the general statute ‘[s]o long as it is not possible to commit the special crime without also
committing the general crime’.” Violation of this rule can result in an equal protection violation “because the State, by
selecting the crime charged, can obtain varying degrees of punishment while proving identical criminal elements.”
 State v. Smeltzer, 86 Wn.App. 818, 939 P.2d 1235 (Div. 3 1997) (defendant charged with first degree
escape for failure to return from furlough; Held: specific crime of failure to return from furlough should
have been charged, conviction reversed).
 State v. Dorn, 93 Wn.App. 535, 969 P.2d 129, review denied, 137 Wn.2d 1035, 980 P.2d 1281 (Div. 2
1999) (defendant charged with first degree escape for failure to return from medical furlough; Held: all
convicted felons, even those sentenced to county jails, are under the authority of the Department of
Corrections, accordingly, the State was required to charge defendant under failure to return from furlough
statute; conviction reversed).
 State v. Long, 98 Wn.App. 669, 991 P.2d 102, review denied, 140 Wn.2d 1025, 10 P.3d 405, 10 P.3d
405 (Div. 2 2000) (Class B first degree malicious mischief conviction for defendant’s killing two expensive
hunting dogs that chased a deer over his property upheld. More specific gross misdemeanor for unlawful
killing pet may be committed without committing first degree malicious mischief, therefore, prosecution
was not required to charge gross misdemeanor.)
Case Law — Limitation on Charging Decision — Lengthy Delay and 8.3(b)
Dismissal
 State v. Rohrich, 149 Wn.2d 647, 71 P.3d 638 (2003) (18 month delay in filding charge did not
prejudice the defendant by impairing his ability to prepare and present a defense. Speculative prejudice to
defendant’s right to fair trial due to delay insufficient to authorize court to dismiss. Charges reinstated.) —
We reverse the Court of Appeals and reinstate the first degree child molestation charge filed in mid-1999 against Rohrich.
The Court of Appeals erred when it upheld the trial court's dismissal on the alternative basis that, because the witnesses'
memories could have dimmed, the delay was prejudicial. Mere speculation regarding a witness's reliability is inadequate to
satisfy the CrR 8.3(b) requirement of prejudice to the defendant's right to a fair trial.
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Case Law — Limitation on Charging Decision — Selective Prosecution Prohibited
 United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 1486, 134 L.Ed.2d 687 (1996) (defendant
not entitled to discovery on a claim that he was singled out for prosecution on basis of race because he
failed to make threshold showing that Government declined to prosecute similarly situated suspects of
other races) —
A selective-prosecution claim asks a court to exercise judicial power over a “special province” of the Executive. The
Attorney General and United States Attorneys retain “‘broad discretion’” to enforce the Nation’s criminal laws.…
Of course, a prosecutor’s discretion is “subject to constitutional constraints.” One of these constraints, imposed by the
equal protection component of the Due Process Clause of the Fifth Amendment is that the decision whether to prosecute
may not be based on “an unjustifiable standard such as race, religion, or other arbitrary classification. A defendant may
demonstrate that the administration of a criminal law is “directed so exclusively against a particular class of persons …
with a mind so unequal and oppressive” that the system of prosecution amounts to “a practical denial” of equal protection
of the law. Yick Wo v. Hopkins, 118 U.S. 356, 373, 6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886).
 United States v. Bass, 536 U.S. 862, 122 S.Ct. 2389, 153 L.Ed.2d 769 (2002) (Black defendant alleged
that death penalty sought against him due to race. He moved to dismiss death penalty notice, or in
alternative for discovery of government’s capital charging practices. Trial court’s dismissal of death notice
in response to government’s refusal to provide discovery reversed) —
In United States v. Armstrong, 517 U.S. 456, 465, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), we held that a defendant
who seeks discovery on a claim of selective prosecution must show some evidence of both discriminatory effect and
discriminatory intent. We need go no further in the present case than consideration of the evidence supporting
discriminatory effect. As to that, Armstrong says that the defendant must make a "credible showing" that "similarly
situated individuals of a different race were not prosecuted." Id., at 465, 470, 116 S.Ct. 1480. The Sixth Circuit concluded
that respondent had made such a showing based on nationwide statistics demonstrating that "[t]he United States charges
blacks with a death-eligible offense more than twice as often as it charges whites" and that the United States enters into
plea bargains more frequently with whites than it does with blacks. 266 F.3d, at 538-539 (citing U.S. Dept. of Justice, The
Federal Death Penalty System: A Statistical Survey (1988-2000), p. 2 (Sept. 12, 2000)). Even assuming that the Armstrong
requirement can be satisfied by a nationwide showing (as opposed to a showing regarding the record of the decisionmakers
in respondent's case), raw statistics regarding overall charges say nothing about charges brought against similarly situated
defendants. And the statistics regarding plea bargains are even less relevant, since respondent was offered a plea bargain
but declined it. See Pet. for Cert. 16. Under Armstrong, therefore, because respondent failed to submit relevant evidence
that similarly situated persons were treated differently, he was not entitled to discovery.
Case Law — Limitation on Charging Decision — Prosecutorial Vindictiveness PreTrial — Threat of Risk of More Severe Punishment

State v. McKenzie, 31 Wn.App. 450, 452, 642 P.2d 760, review denied, 96 Wn.2d 1024 (Div. 1 1981).
Prosecutorial vindictiveness is [the] intentional filing of a more serious crime in retaliation for a defendant’s lawful
exercise of a procedural right.
 Bordenkircher v. Hayes, 434 U.S. 357, 54 L.Ed.2d 604, 98 S.Ct. 663, 668-69 (1978) (defendant
indicted by grand jury on charge of uttering a forged instrument; prosecutor offered to recommend five
years if guilty plea, but threatened if plea offer rejected to seek grand jury indictment as habitual criminal
which carried mandatory life imprisonment sentence; plea offer rejected, defendant convicted on all
charges, and sentenced to life imprisonment; Supreme Court upheld convictions) —
While confronting a defendant with the risk of more severe punishment clearly may have a “discouraging effect on the
defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable” — and permissible —
“attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” It follows that, by tolerating
and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple
reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not
guilty.…
There is no doubt that the breadth of discretion that our country’s legal system vests in prosecuting attorneys carries with
it the potential for both individual and institutional abuse.
[Footnote. This potential has led to many recommendations that the prosecutor’s discretion should be controlled
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by means of either internal or external guidelines. See ALI Model Code of Pre-Arraignment Procedure for
Criminal Justice §§ 350.3(2)-(3) (1975); ABA Project on Standards for Criminal Justice, The Prosecution
Function §§ 2.5, 3.9 (App. Draft 1971); Abrahams, Internal Policy: Guiding the Exercise of Prosecutorial
Discretion, 19 UCLA L. Rev. 1 (1971)]
And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise. We hold only that
the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with
the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not
violate the Due Process Clause of the Fourteenth Amendment.

United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 2942-43, 73 L.Ed.2d 74 (1982) —
For just as a prosecutor may forego legitimate charges already brought in an effort to save the time and expense of trial, a
prosecutor may file additional charges if an initial expectation that a defendant would plead guilty to lesser charges proves
unfounded.…
A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of
the societal interest in prosecution. An initial decision should not freeze future conduct. As we made clear in
Bordenkircher, the initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately
subject to prosecution.
 State v. Serr, 35 Wn.App. 5, 11, 664 P.2d 1301, review denied, 100 Wn.2d 1024 (1983) (mere fact that
defendant refuses to plead guilty and forces government to prove its case is insufficient to warrant
presumption that subsequent changes in charging decision are unwarranted).
 State v. McDowell, 102 Wn.2d 341, 342-47, 685 P.2d 595 (1984) (no presumption of prosecutorial
vindictiveness where prosecutor filed more serious charge after juvenile refused to enter into diversionary
program on complaint alleging less serious charge).
 State v. Soderholm, 68 Wn.App. 363, 842 P.2d 1039 (Div. 1 1993) (misdemeanor charges dismissed
and felony charges filed after defendant rejected plea offer; Held: felony conviction affirmed because there
was no proof of actual prosecutorial vindictiveness; mere appearance of vindictiveness is insufficient).
 State v. Lee, 69 Wn.App. 31, 35, 847 P.2d 25, review denied, 122 Wn.2d 1003, 859 P.2d 602 (Div. 1
1993) (“Prosecutorial vindictiveness must be distinguished, however, from the rough and tumble of
legitimate plea bargaining”; conviction affirmed).
 State v. Bonisisio, 92 Wn.App. 783, 964 P.2d 1222 (Div. 2 1998), review denied, 137 Wn.2d 1024, 980
P.2d 1285 (1999) (Defendant convicted of multiple counts of burglary and unlawful possession of firearms,
and trafficking. Original plea offer was for county jail time. Court imposed exceptional sentence below 252
month standard range; Held: convictions affirmed, remanded for resentencing) —
“ ‘Prosecutorial vindictiveness is [the] intentional filing of a more serious crime in retaliation for a defendant’s lawful
exercise of a procedural right.’ “ But an initial charging decision does not freeze prosecutorial discretion. A prosecutor may
increase an initial charge when a fully informed and represented defendant refuses to plea guilty to a lesser charge. United
States v. Goodwin, 457 U.S. 368, 378-80, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). Nonetheless, “a defendant in an
appropriate case might prove objectively that the prosecutor’s charging decision was motivated by a desire to punish him
for doing something that the law plainly allowed him to do.
In federal courts, the treatment of a vindictiveness claim varies depending upon whether the defendant raises the claim
pretrial, or upon appeal or retrial. Although there is a presumption of vindictiveness when a prosecutor files an indictment
in response to a defendant’s filing of an appeal, there is no such presumption in a pretrial setting.
A defendant in a pretrial setting bears the burden of proving either “ ‘(1) actual vindictiveness, or (2) a realistic
likelihood of vindictiveness which will give rise to a presumption of vindictiveness.’ “ Once the defendant makes the
required showing, the prosecution must “ ‘justify its decision with legitimate, articulable, objective reasons’ “ for its
actions.
The case law does not specify when a trial court must grant a request for an evidentiary hearing to examine a claim of
prosecutorial vindictiveness. We conclude, however, that it is reasonable to apply the same analysis as is used for selective
prosecution claims. That is what the trial court did and, in oral argument before this court, defense counsel conceded that
prosecutorial vindictiveness is a subcategory of selective prosecution.
A defendant seeking discovery on a claim of selective prosecution must produce some evidence that the government
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could have prosecuted similarly situated defendants but chose not to do so. The evidence must tend to show the existence
of the elements of the claim.
The only evidence that Bonisisio presented suggesting prosecutorial vindictiveness was defense counsel’s assertion that
in approximately 18 years of practice in Kitsap County he had “never had charges this severe brought against any
individual charge with crimes where no one was physically harmed.” Conspicuously absent was any evidence regarding
Kitsap County’s treatment of similarly situated defendants. There was not a single description of a specific incident where
Kitsap County failed to charge a defendant suspected of multiple burglaries after the defendant rejected a plea bargain. Nor
was there data indicating that the Kitsap County prosecutor’s office deviated from its normal practice and procedures in
pursuit of Bonisisio. Given the absence of evidence supporting the prosecutorial vindictiveness claim, the trial court did not
err in denying Bonisisio an evidentiary hearing.
Case Law — Limitation on Charging Decision — Prosecutorial Vindictiveness PostTrial — Presumption of Vindictiveness
 Blackledge v. Perry, 417 U.S. 21, 40 L.Ed.2d 628, 94 S.Ct. 2098, 2102-03 (1974) (defendant convicted
of misdemeanor, sentenced to 6 months, and appealed, seeking a trial de novo in superior court as
authorized by North Carolina law; prosecutor thereafter obtained felony indictment charging defendant
with assault with deadly weapon based on same incident; defendant plead guilty to felony, was sentenced to
a term of five to seven years, and sought habeas corpus review) —
A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus
obtaining a trial de novo in the Superior Court, since such an appeal will clearly require increased expenditures of
prosecutorial resources before the defendant’s conviction becomes final, and may even result in a formerly convicted
defendant’s going free. And, if the prosecutor has the means readily at hand to discourage such appeals — by ‘upping the
ante’ through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy — the State
can insure that only the most hardy defendants will brave the hazards of a de novo trial.…
Due process of law requires that such a potential for vindictiveness must not enter into North Carolina’s two-tiered
appellate process. We hold, therefore, that it was not constitutionally permissible for the State to respond to Perry’s
invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo.
 State v. Ameline, 118 Wn.App. 128, 75 P.3d 589 (Div. 2 2003) (Judicial vindictiveness. Defendant
sentenced to 164 months after first trial. Appeal successful. Defendant sentenced to 164 months after
second trial. Appeal successful. Defendant sentenced to 240 month exceptional sentence for deliberate
cruelty. All before same judge. Reversed and remanded for resentencing before another judge.) —
Ameline asserts that the third sentence was presumptively vindictive and that presumption was not rebutted because the
trial court did not rely on facts that were unknown at the time of its first two sentences. The State does not contend that the
trial court relied on facts that were not known at the time of the first two sentences. The State asserts only that at the third
trial and sentencing, it was "more effective at presenting the evidence that challenged the defendant's version of how the
victim's injuries had been inflicted [.]"
In North Carolina v. Pearce, [FN7] the United States Supreme Court asked, "When at the behest of the defendant a criminal
conviction has been set aside and a new trial ordered, to what extent does the Constitution limit the imposition of a harsher
sentence after conviction upon retrial?" [FN8] The Court held:
FN7. 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
A trial judge is not constitutionally precluded ... from imposing a new sentence, whether greater or less than the original
**591 sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant's "life,
health, habits, conduct, and mental and moral propensities." Such information may come to the judge's attention from
evidence adduced at the second trial itself, from a new presentence investigation, from the defendant's prison record, or
possibly from other sources.... [FN9]
The Court noted, however, that the trial court's authority is subject to the following due process limitation:
It can hardly be doubted that it would be a flagrant violation of the Fourteenth Amendment for a state trial court
to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the
explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set
aside....
Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his
first conviction must play no part in the sentence he receives after a new trial. And since the fear of such
vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his
first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory
motivation on the part of the sentencing judge.
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In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more
severe sentence upon a defendant after a new trial, the reasons for his *133 doing so must affirmatively appear.
Those reasons must be based upon objective information concerning identifiable conduct on the part of the
defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the
increased sentence is based must be made part of the record, so that the constitutional legitimacy of the
increased sentence may be fully reviewed on appeal. [FN10]
Thus, Pearce creates "a rebuttable presumption of vindictiveness" when the same trial judge presides over two or more
trials and the last sentence is "more severe" than earlier ones. [FN11]
FN11. Smith, 490 U.S. at 802, 109 S.Ct. 2201 ("sentencing judge who presides at both trials can be expected to
operate in the context of roughly the same sentencing considerations after the second trial as he does after the
first; any unexplained change in the sentence is therefore subject to a presumption of vindictiveness"); State v.
Franklin, 56 Wash.App. 915, 920, 786 P.2d 795 (1989) ("[u]nder Pearce, a more severe sentence establishes a
rebuttable presumption of vindictiveness"), review denied, 114 Wash.2d 1004, 788 P.2d 1078 (1990). Pearce is
subject to certain limitations, but none that applies here. See, e.g., Smith, 490 U.S. at 801-02, 109 S.Ct. 2201
(Pearce inapplicable when first sentencing followed guilty plea and second sentencing followed trial); Texas v.
McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986) (Pearce inapplicable when jury imposed first
sentence, judge set aside first sentence, and same judge imposed second sentence).
After Ameline's first trial, the judge declined to adopt the presentence report's recommendation of an exceptional sentence.
After Ameline's second trial, the same judge declined to adopt the State's recommendation of an exceptional sentence,
expressly characterizing the case as a "classical murder- in-the-second-degree situation." [FN12] After Ameline's third
trial, the same judge imposed an exceptional sentence that was about 50 percent more harsh than the first two standard
range sentences, without identifying or relying on facts that it was not aware of when it imposed its first two sentences.
These facts generate a rebuttable presumption of vindictiveness under Pearce, the record does not rebut that presumption,
and Ameline's third sentence must be set aside.
 State v. Korum, 120 Wn.App. 686, 86 P.3d 166, review granted, 152 Wn.2d 1021, 101 P.3d 108 (Div.
2 2004) (Prosecutor acted vindictively after defendant’s withdrawal of his two guilty pleas (135 months
sentence, originally 16 counts, prosecution appeal unsuccessful) due to improper advice about mandatory
community placement following prison by adding 30 counts and seeking exceptional sentence of 117 years
(1208 to 1410 months) for multiple robberies, kidnappings, and unlawful firearm.) —
"[A] public prosecutor is a quasi-judicial officer" who represents the State and must "act impartially." [FN8] A prosecutor's
duty to do justice on behalf of the public transcends *173 mere advocacy of the State's case: [FN9] "[T]he prosecutors
ethical duty is to seek the fairest rather than necessarily the most severe outcome." [FN10] The fairest outcome may
include refraining from filing criminal charges legally supported by the evidence if filing those charges will result in
statutorily-authorized punishment disproportionate to the particular offense or offender….
We acknowledge and respect the broad ambit to prosecutorial discretion, most of which is not subject to judicial control.
[FN12] Under the Sentencing Reform Act of 1981(SRA), our Legislature has given prosecutors great latitude in
determining what charges to file against a defendant. State v. Lewis, 115 Wash.2d 294, 299, 797 P.2d 1141 (1990).
Nonetheless, the Legislature did not leave the prosecutors' discretion unbridled. On the contrary, the Legislature limited
prosecutors' charging discretion as follows: …
A. "Stacking" or "Pyramiding" of Incidental Kidnappings
Korum argues that we should reverse his kidnapping convictions because there was insufficient evidence of restraint in that
"all of the kidnapping counts were merely 'incidental' to the robberies." Appellant's Brief at 52. In support, he cites State v.
Green, in which the Supreme Court held that there was insufficient evidence of kidnapping because the restraint and
movement of the victim was merely "incidental" to and not "an integral part of and was independent of the *174 underlying
homicide." [FN13] 94 Wash.2d 216, 227, 616 P.2d 628 (1980) ("While movement of the victim occurred, the mere
incidental restraint and movement of a victim which might occur during the course of a homicide are not, standing alone,
indicia of a true kidnapping.") We agree with Korum that Green requires dismissal of the kidnapping charges here because
they were incidental to the robberies….
Here, in contrast, restraining the victims was contemporaneous with the robberies; and aside from the victim in Count 3,
who was moved to the next door trailer, there was no removal of the victims from their homes and no transportation under
cover to another location. Even as to Count 3, the "kidnapping" was not independent of the robberies. Rather, the robbers
moved her from the Beaty home to Molina's trailer on the same property, apparently so she could watch the children in the
trailer during the robbery. The victim was with other people, including the trailer's residents. Similar to Green, supra, she
was not secreted in a place where she was unlikely to be found.
Accordingly, we hold as a matter of law that the kidnappings [FN18] here were incidental to the robberies for the following
reasons: (1) The restraints were for the sole purpose of facilitating the robberies--to prevent the victims' interference with
searching their homes for money and drugs to steal; (2) forcible restraint of the victims was inherent in these armed
robberies; (3) the victims were not transported away from their homes during or after the invasions to some remote spot
where they were not likely to be found; (4) although some victims were left restrained in their homes when the robbers left,
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the duration of the restraint does not appear to have been substantially longer than that required for commission of the
robberies; [FN19] and (5) the restraints did not create a significant danger independent of that posed by the armed
robberies themselves. See Green, 94 Wash.2d at 216, 616 P.2d 628.
B. Denial of Due Process
1. Plea Bargaining
At the outset, we recognize that
[p]rosecutorial vindictiveness must be distinguished ... from the rough and tumble of legitimate plea bargaining.
That a prosecutor may offer "hardball" choices to a defendant does not make the process constitutionally unfair,
so long as the choices are realistically based upon evidence and options known to both sides.
Just as a prosecutor may legitimately reduce an initial charge as the result of a successful plea bargain, he or she
may legitimately increase an initial charge which was filed in the expectation that a fully informed and
represented defendant would plead guilty to the lesser charge, when that expectation proves to be unfounded.
State v. Lee, 69 Wash.App. 31, 36, 847 P.2d 25, review denied, 122 Wash.2d 1003, 859 P.2d 602 (1993) (footnote omitted)
(citing United States v. Goodwin, 457 U.S. 368, 378-80, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)). See also, State v.
Bonisisio, 92 Wash.App. 783, 790, 964 P.2d 1222 (1998), review denied, 137 Wash.2d 1024, 980 P.2d 1285 (1999).
Nonetheless, "[a] prosecutor should not overcharge to obtain a guilty plea." Lee, 69 Wash.App. at 36 n. 6, 847 P.2d 25. See
also, RCW 9.94A.440(2)(2). Similarly, there are limitations on a prosecutor's discretion to increase charges following
vacation of a guilty plea:
An increase in the severity or number of charges if done without vindictiveness may be easily explained. For
example, evidence of the additional crimes may not have been obtained until after the first indictment or
information is filed, or the additional crime may not be complete at the time charges are first brought. And a
prosecutor may, without explanation, refile *177 charges against a defendant whose bargained-for guilty plea to
a lesser charge has been withdrawn or overturned on appeal, provided that an increase in the charges is within
the limits set by the original indictment.
Hardwick, 558 F.2d at 301 (emphasis added, footnotes omitted). [FN20]
FN20. See also Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (due process is not
violated when state carries out threat made during plea negotiations to recharge accused with more serious
offense, on which defendant is plainly subject to prosecution if he rejects offer to plead guilty to offense
originally charged).
2. Prosecutorial Vindictiveness
A prosecutor may not vindictively file a more serious crime in intentional "retaliation for a defendant's lawful exercise of a
procedural right." [FN21] Bonisisio, 92 Wash.App. at 790, 964 P.2d 1222 (quoting Lee, 69 Wash.App. at 35, 847 P.2d 25).
Yet this is precisely what the State did here.
The record shows that the State was not only aware of possible additional charges at the time of Korum's guilty plea, but it
also expressly threatened to file an amended 32-count information with 16 additional charges if Korum did not plead guilty
and opted instead to go to trial. Moreover, the State faxed a copy of its threatened 32-count information to Korum, offering
to dismiss the other existing charges and to refrain from filing new charges if Korum pleaded guilty to one count of first
degree kidnapping and one count of second degree unlawful firearm possession.
Again, we are mindful that not every increase in charges following plea vacation and trial meets the stringent test for
prosecutorial vindictiveness. Cognizant of a prosecutor's broad discretion in filing charges, we do not render our decision
here lightly….
a. Proof and presumption
Citing the United States Supreme Court decision in Blackledge v. Perry, [FN22] the Fifth Circuit explains the tension
between the prosecutor's broad charging discretion and the accused's right to a vindictiveness-free charging decision:
The advancement of a prosecutorial vindictiveness claim brings into conflict two antithetical interests: (1) the
due process right of the defendant to be free of apprehension that the state might subject him to an increased
potential punishment if he exercises his right to make a direct or collateral attack on his conviction, and (2) the
prosecutor's broad discretion to control the decision to prosecute.... A court must "weigh the extent to which
allowing the second [prosecution of the defendant] will chill the exercise of the defendants' appeal rights against
the extent to which forbidding the second [prosecution] will infringe on the exercise of the prosecutor's
independent discretion."
Employing this calculus in Blackledge, the Supreme Court found from the circumstances that the interest of the State was
completely overborne by the defendant's right to be free of the fear of vindictiveness. The Court therefore held that a due
process violation was established by the accused's showing that his second prosecution posed a "reasonable likelihood of
vindictiveness," creating an apprehension in future defendants that the state would retaliate against their exercise of
constitutional or statutory rights. No actual vindictiveness or retaliation motive was required to be shown.
Miracle v. Estelle, 592 F.2d 1269, 1272-73 (5th Cir.1979) (footnote and citation omitted, emphasis added, alteration in
original).
To show a "reasonable likelihood of vindictiveness," Korum cites (1) the "severe disparity" between the State's
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recommendation of a 10-year sentence following his guilty plea and the "horrendous [over 100-year] sentence" that the
State recommended after his *178 jury trial; and (2) the "severe disparity" between his 100-year post-trial sentence and the
far lower sentences of his co-defendants, who pled guilty to fewer counts but who were more culpable for the same home
invasions with which the State had charged Korum after he withdrew his plea. Br. of App. at 65-66. Underlying this
exponential increase in sentencing, in part, was the State's doubling the number of charges after Korum withdrew his guilty
plea and requested a trial.
During the plea negotiations, the State had justified its offer to reduce the charges to one count of kidnapping and one
count of unlawful firearm possession, in part, because Korum was merely the getaway driver. But after he withdrew his
plea, the State charged him with 32 counts for essentially four home invasions, using primarily two legal devices: (1)
stacking kidnapping, robbery, burglary, and assault charges for each home invasion, amplified with additional counts
where there were multiple people in the home; and (2) charging Korum with additional counts for crimes committed by codefendants. The State further increased Korum's potential sentence by adding mandatory, consecutive, firearm sentencing
enhancements.
Korum's case is not like Miracle, where at no time during these proceedings ha[d] the state offered an explanation for
upping the ante ... 592 F.2d at 1277. Here, the State made no effort to hide its reason for upping the ante against Korum.
Rather, it was clearly following through on its plea- negotiation threat to file a 32-count amendment if Korum exercised his
right to trial.
Here, the State asked the trial court to impose exceptional sentences totaling up to 117 years confinement, [FN28] in spite
of the absence of exceptional cruelty or physical harm to person or property (aside from the thefts), [FN29] in contrast with
other typically more violent home invasions. [FN30] Instead, the State argued that, based on the planning and
sophistication involved in these crimes, consecutive standard-range sentences, totaling 100 years, were "clearly too
lenient." [FN31] This characterization of Korum's culpability post-trial differed markedly from the State's characterization
of his minimal involvement post-plea when the State recommended a sentence of only 10 years, especially where the State
did not base its exponentially increased sentence recommendation on any additional post-plea investigation.
FN28. More precisely, the State recommended confinement for 1208 to 1410 months.
Although some significant increase in sentence recommendation is to be expected when a defendant rebuffs a plea bargain
and puts the State to the risk and expense of a trial, [FN32] nonetheless, this increase cannot be of a magnitude that
suggests vindictive retaliation for the defendant's exercise of his right to withdraw a defective guilty plea and to request a
trial. [FN33] Here, other than its changed characterization of Korum's degree of involvement, the State made no attempt to
justify the magnitude of its increased sentence *180 recommendation, above and beyond the increase normally expected
for a defendant who rebuffs a plea agreement and goes to trial. [FN34]
FN32. H. Richard Uviller, The Neutral Prosecutor: The Obligation of Dispassion in a Passionate Pursuit, 68
FORDHAM L.REV., 1695, 1714 (2000):
Since docket economy is an ongoing imperative, some discount is probably granted solely in exchange for
bypassing the trial and appeal. Projected success with a jury counts too. But underlying the states accord to a
reduction in the top count penalty must be a defensible assessment of the gravity of the crime and the deserts of
the defendant.
FN33. "[V]indictiveness against a defendant for having successfully attacked his first conviction must play no
part in the sentence he receives after a new trial." Blackledge, 417 U.S. at 25-26, 94 S.Ct. 2098 (citing North
Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)).
ii. Disparity in co-conspirators' sentences
The State's theory at trial was that Korum was essentially an accomplice, a member of a gang on a summer-time homeinvasion crime spree. The record here shows that Korum's level of involvement in the series of drug-dealer home invasions
was not commensurate with that of his co-defendants, such as Durden, whom some victims described as the prime actor
and who received a 22-year sentence, after pleading guilty.
Clearly these home invasions were violent, dangerous, serious, and unjustified by the robbers' choice of drug-dealer
victims. Korum, however, caused no physical harm to the victims. Further, Korum's minimal participation was in stark
contrast to the conduct of Durden, a fact the State implicitly recognized when Durden received as part of his plea bargain, a
sentence more than twice the sentence the State had recommended for Korum on pleading guilty.
As a result of prosecutorial vindictiveness here, however, Korum's charges, and consequently his resultant sentences, far
exceeded those of his more culpable co-conspirators. Even though the trial court imposed low-standard- range sentences
for the mandatory consecutive kidnapping and firearm counts and ran the sentences for the other counts concurrently,
Korum's sentence still totaled more than 100 years….
b. Summary
When Korum argued prosecutorial vindictiveness below, the trial court ruled that the State had justifiable reasons for
amending the information. [FN39] We disagree that the extent of the amendment allowed here was justified: After Korum
withdrew his plea and requested a jury trial, the State no longer folded the kidnappings into a single count. Nor did it
simply reinstate the counts it had dismissed as part of the plea bargain. Instead, the State essentially doubled the number of
crimes charged and increased Korum's sentence exposure to a maximum of 261 years confinement. In so doing, the State
carried out its threat to file additional charges, which were inflated and stacked, if Korum exercised his right to trial.
Based on the record before us, we find a "realistic likelihood of vindictiveness" [FN41] by the State to punish Korum for
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withdrawing his plea and exercising his right to trial by jury, based on the following facts: (1) After Korum withdrew his
guilty plea and exercised his right to trial, the State retaliated by doubling the number of charges and increasing its
sentencing recommendation ten-fold, beyond what the circumstances and justice warranted; (2) in so doing, the State
distended the already stacked multiple kidnapping charges, one per victim, which should not have been filed under the
facts here because they were clearly incidental to the robberies; (3) the State cited no "legitimate, articulable, objective
reasons" justifying its actions; and (4) even taking into account that Korum went to trial and his codefendants pled guilty,
the gross disparity in their charges and sentences is unjustifiable. Bonisisio, 92 Wash.App. at 791, 964 P.2d 1222.
C. Remedy
The remedy for prosecutorial vindictiveness is dismissal of charges-- original charges and/or those added vindictively.
Meyer, 810 F.2d at 1249. First, we dismiss the kidnapping counts as incidental to the robberies. See State v. Green, 94
Wash.2d 216, 616 P.2d 628 (1980).
Second, as to the new charges that the State threatened and added after Korum exercised his right to trial, we dismiss them,
too, because it is "reasonably likely" that they were the product of prosecutorial vindictiveness and created a reasonable
apprehension of retaliation in Korum, thereby violating his right to due process of law, specifically his right to trial by jury.
Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); Miracle, 592 F.2d 1269.
Third, as to the remaining counts, we remand to the trial court to determine which counts should be dismissed in order to
provide a deterrent to prosecutorial vindictiveness. [FN42] CrR 8.3(b) gives the trial court power to dismiss charges on
equitable grounds and "protect[s] against arbitrary action or governmental misconduct." State v. Starrish, 86 Wash.2d 200,
205, 544 P.2d 1 (1975). Governmental misconduct or arbitrary action by the prosecutor warrants dismissal of charges
under CrR 8.3(b). [FN43] Starrish, 86 Wash.2d at 206, 544 P.2d 1.
Case Law — Sentence Enhancements — Historical Facts (Prior Conviction) vs. Facts
Arising From Incident (Const. art. 1 § 21 and Apprendi)
 State v. Manussier, 129 Wn.2d 652, 921 P.2d 473 (1996), cert. denied, 520 U.S. 1201, 117 S.Ct. 1563,
137 L.Ed.2d 709 (1997) (Washington’s Initiative 593, the “three strikes law” where the defendant is
sentenced to mandatory life without the possibility of parole if convicted of three or more “most serious
offenses.” Conviction upheld even though the trial court, and not the jury, decided the existence of two
prior “most serious offenses.”) —
Appellant also argues his state and federal procedural due process rights are violated by Initiative 593. His argument is
based largely upon this court’s decisions under the former habitual criminal statute. That statute imposed a mandatory life
sentence for any defendant convicted of three felonies, but did not establish procedures for habitual criminal hearings. This
court took a step towards providing them. We held that the State bears the burden of pleading and proving beyond a
reasonable doubt the fact of two prior convictions in an habitual criminal proceeding. We have also held that the existence
of prior convictions in an habitual criminal prosecution was a question of fact to be resolved in a separate jury trial, and if
the defendant timely raised the issue, the State was required to prove the constitutional validity of the prior convictions
beyond a reasonable doubt.
Under the Sentencing Reform Act of 1981 (SRA) (RCW.9.94A), of which Initiative 593 is a part, the procedures are
quite different. The defendant’s prior convictions need only be proved by a preponderance of the evidence, not proved
beyond a reasonable doubt. Also, there is no provision in the SRA, or in Initiative 593 itself, for a separate jury trial on the
issue of prior convictions or the constitutional validity of those prior convictions.
In State v. Ammons, this court upheld the constitutional validity of RCW 9.94A, finding “the sentencing court’s
determination of prior convictions under the SRA to be most analogous to the former parole board’s determination of
criminal activity in a parole revocation proceeding” where the preponderance of the evidence standard had been held
“constitutionally sufficient.” The court also concluded in that case that the State need not prove the constitutional validity
of a defendant’s prior convictions unless they had been previously declared unconstitutional or were facially
unconstitutional.
Appellant has not been denied his procedural due process rights under either the federal or state constitutions. While the
former habitual criminal statute is somewhat analogous to Initiative 593 as a criminal recidivist statute, the initiative was
enacted and codified as part of the SRA (RCW 9.94A). Therefore, the procedures set forth in that statute ( RCW
9.94A.110) must govern proceedings under RCW 9.94A.120(4), regardless of any similarity to the habitual criminal
statute. Those procedures are constitutional even though they are less protective than those developed by the court under
the former habitual criminal statute. The United States Supreme Court has held that a criminal defendant has no
constitutional right to a jury trial on questions of fact relating to sentencing.
In Parke v. Raley, the Supreme Court upheld Kentucky’s persistent felony offender statute under which prior
convictions were presumed valid once the prosecution proved existence of the prior judgments. Under the Kentucky
scheme, the prosecution’s proof of prior judgments shifts to the defendant the burden of showing the defendant’s rights
were infringed or that some procedural irregularity occurred in the earlier proceedings. If the defendant refutes this
“presumption of regularity,” the burden shifts back to the government to prove the validity of the judgments. The Court
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referred to this approach as a “middle position,” pointing out that some jurisdictions place the entire burden on the
defendant once the prosecution has established the fact of prior convictions. In upholding the Kentucky statute, the Court
emphasized the “presumption of regularity that attaches to final judgments,” even when the question involves a waiver of
constitutional rights. The Court also noted that due process does not require the state to prove the validity of a prior
conviction, once the burden has shifted, by clear and convincing evidence, and suggested that a preponderance of the
evidence standard would be constitutional.
Following these decisions, we cannot conclude that federal due process requires that Initiative 593 must contain the
procedural protections created by this court under our former habitual criminal statute. This court declared the procedural
provisions of the SRA (RCW 9.94A) constitutional in State v. Ammons. We now conclude that state due process requires
nothing more than the procedures provided in RCW 9.94A.110 and that appellant’s procedural due process claim is
without merit.
 State v. Henthorn, 85 Wn.App. 235, 932 P.2d 662 (Div. 1 1997) (Neither due process nor applicable
statutes requires the State to specifically allege (plead) and prove beyond a reasonable doubt prior DUI
convictions that result in a higher mandatory minimum sentence for the current DUI offense. The State is
also not required to give notice that it will be relying on prior convictions to enhance the mandatory
minimum sentence.)
 Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 1219-25, 143 L.Ed.2d 311 (1999) (Defendant
convicted of using a firearm during carjacking where the federal statue makes criminal the taking of a
motor vehicle from the person or presence of another by force and violence or by intimidation, with a 15
year penalty or 25 years if serious bodily injury results. Defendant was told at arraignment that he faced 15
years, but was sentence to 25 after trial court found that serious bodily injury resulted. Neither the
indictment nor jury instructions mentioned the serious bodily injury language. Conviction reversed 5-4
since jury did not determine “serious bodily injury” fact) —
Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that
elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable
doubt. See, e.g., Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v.
Gaudin, 515 U.S. 506, 509-510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). Accordingly, some statutes come with the
benefit of provisions straightforwardly addressing the distinction between elements and sentencing factors. See McMillan
v. Pennsylvania, 477 U.S. 79, 85-86, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (express identification of statutory provision as
sentencing factor). Even without any such help, however, § 2119 at first glance has a look to it suggesting that the
numbered subsections are only sentencing provisions. It begins with a principal paragraph listing a series of obvious
elements (possession of a firearm, taking a motor vehicle, connection with interstate commerce, and so on). That
paragraph comes close to standing on its own, followed by sentencing provisions, the first of which, subsection (1),
certainly adds no further element. But the superficial impression loses clarity when one looks at the penalty subsections (2)
and (3). These not only provide for steeply higher penalties, but condition them on further facts (injury, death) that seem
quite as important as the elements in the principal paragraph (e.g., force and violence, intimidation). It is at best
questionable whether the specification of facts sufficient to increase a penalty range by two-thirds, let alone from 15 years
to life, was meant to carry none of the process safeguards that elements of an offense bring with them for a defendant’s
benefit. The “look” of the statute, then, is not a reliable guide to congressional intentions, and the Government accordingly
advances two, more subtle structural arguments for its position that the fact specified in subsection (2) is merely a
sentencing factor.
McMillan is notable not only for acknowledging the question of due process requirements for factfinding that raises a
sentencing range, but also for disposing of a claim that the Pennsylvania law violated the Sixth Amendment right to jury
trial as well. The petitioner’s basic argument was for a right to jury determination of all “ultimate facts concerning the
offense committed,” id., at 93, 106 S.Ct. 2411, and although the Court disposed of this by reference back to its due process
discussion, that discussion had broached the potential constitutional significance of factfinding that raised the sentencing
ceiling.
McMillan, then, recognizes a question under both the Due Process Clause of the Fourteenth Amendment and the jury
guarantee of the Sixth: when a jury determination has not been waived, may judicial factfinding by a preponderance
support the application of a provision that increases the potential severity of the penalty for a variant of a given crime?
The seriousness of the due process issue is evident from Mullaney ‘s insistence that a State cannot manipulate its way out
of Winship, and from Patterson ‘s recognition of a limit on state authority to reallocate traditional burdens of proof; the
substantiality of the jury claim is evident from the practical implications of assuming Sixth Amendment indifference to
treating a fact that sets the sentencing range as a sentencing factor, not an element.
The terms of the carjacking statute illustrate very well what is at stake. If serious bodily injury were merely a sentencing
factor under § 2119(2) (increasing the authorized penalty by two thirds, to 25 years), then death would presumably be
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nothing more than a sentencing factor under subsection (3) (increasing the penalty range to life). If a potential penalty
might rise from 15 years to life on a nonjury determination, the jury’s role would correspondingly shrink from the
significance usually carried by determinations of guilt to the relative importance of low-level gatekeeping: in some cases,
a jury finding of fact necessary for a maximum 15-year sentence would merely open the door to a judicial finding sufficient
for life imprisonment. It is therefore no trivial question to ask whether recognizing an unlimited legislative power to
authorize determinations setting ultimate sentencing limits without a jury would invite erosion of the jury’s function to a
point against which a line must necessarily be drawn.
The question might well be less serious than the constitutional doubt rule requires if the history bearing on the Framers’
understanding of the Sixth Amendment principle demonstrated an accepted tolerance for exclusively judicial factfinding to
peg penalty limits. But such is not the history. To be sure, the scholarship of which we are aware does not show that a
question exactly like this one was ever raised and resolved in the period before the Framing. On the other hand, several
studies demonstrate that on a general level the tension between jury powers and powers exclusively judicial would likely
have been very much to the fore in the Framers’ conception of the jury right.
 Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000) (Waco BranchDividian members convicted of offenses including using or carrying a firearm during a crime of violence.
The penalty dramatically increases if the firearm was a machine gun. A jury determined the defendants’
guilt, and the trial court found that the firearms at issue included machine guns, which resulted in
imposition of a mandatory 30 year sentence rather than a 5 year sentence. Supreme Court held that
Congress intended machine gun language in statute to be an element of a separate aggravated crime.
Convictions reversed.)
 Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 43 (2000) (Defendant charged
under New Jersey law with second degree possession of a firearm for an unlawful purpose, which carries a
prison term of 5 to 10 years. Under New Jersey’s hate crime statute, an enhanced sentence is permitted if a
trial judge finds, by a preponderance of the evidence, that the defendant committed the crime with a
purpose to intimidate a person or group because of race. After Apprendi pleaded guilty, the prosecutor filed
a motion to enhance the sentence, and the trial court thereafter found by a preponderance of the evidence
that the shooting was racially motivated and sentenced Apprendi to a 12 year term on the firearms count.
Supreme Court reverses, relying upon Jones, supra)
 State v. Gore, 143 Wn.2d 288, 21 P.3d 262 (2001), overruled by State v. Hughes, ___ Wn.2d ___, 110
P.3d 192 (Apr. 14, 2005) (Apprendi does not require pleading and proving beyond a reasonable doubt facts
supporting an adult felony exceptional sentence.)
 State v. Wheeler, 145 Wn.2d 116, 34 P.3d 799 (2001), cert. denied, 535 U.S. 1037, 122 S.Ct. 1796,
152 L.Ed.2d 654 (2002) (Three strike Persistent Offender Accountability Act life imprisonment without
parole. Apprendi does not require the state to plead and prove historical prior convictions under POA.)
 State v. Hopkins, 109 Wn.App. 558, 36 P.3d 1080 (Div. 1 2001) (Defendant convicted of DUI for
incident occurring January 25, 1999. Defense not permitted to present evidence at trial that breath test
could be between .141 and .172 based on court ruling that .15 breath test decision up to court. Defense also
unsuccessfully submitted instructions on issue. Judge found by a preponderance that breath test was .15 or
higher [.157] and sentenced her accordingly [365 with 363 suspended, $5000 fine with all but $925
suspended, and checked DOL box marked “Other” and worte “Revocation of license for one year.”
Reversed and remanded for resentencing. because Apprendi violated due to increased “punishment” of
longer driver’s license suspension under prior RCW 46.61.5055.)
Under former RCW 46.61.5055(1), a person convicted for the first time of driving while under the influence must "be
punished" by a driver's license suspension or revocation of either 90 days or one year, depending on the person's alcohol
concentration. Because the length of the revocation increases upon a finding that the level is 0.15 or greater, that finding is
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for the jury to make. In this case the sentence included a one-year revocation, based on a finding made by the judge. The
sentence must be reversed. …
Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must
be submitted to a jury and proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348,
147 L.Ed.2d 435 (2000); State v. Gore, 143 Wash.2d 288, 312, 21 P.3d 262 (2001)….
The State argues that the revocation of Hopkins' license does not trigger an Apprendi analysis because revocation is a civil
penalty. Whether a particular statutorily defined penalty is civil or criminal is largely a matter of statutory construction.
United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980); Winchester v. Stein, 135 Wash.2d 835,
846, 959 P.2d 1077 (1998). Where a statute is plain and unambiguous, the court's inquiry must end, for a statute's meaning
must be derived from the wording of the statute itself. State v. Von Thiele, 47 Wash.App. 558, 562, 736 P.2d 297 (1987);
Enterprise Leasing, Inc. v. City of Tacoma, 139 Wash.2d 546, 552, 988 P.2d 961 (1999).
The statute in question, former RCW 46.61.5055(1), lists license revocation along with jail time and a fine after the words
"shall be punished as follows". We find this to be a plain and unambiguous statement that license revocation, as
accomplished under this statute, is intended as a criminal penalty.
A recent amendment to RCW 46.61.5055, effective July 25, 1999, has changed the statute so that the license suspension
provisions no longer follow the words, "shall be punished as follows". See RCW 46.61.5055(1). Instead, the provisions for
license suspension are found in a separate subsection. See RCW 46.61.5055(6). The State asks us to regard the amendment
as a clarification, indicating that the license revocation provisions in the former statute were not intended to be penal in
nature. See, e.g., State v. Hendricks, 103 Wash.App. 728, 14 P.3d 811 (2000) (where an original enactment was ambiguous
and a clarifying amendment contravenes no judicial construction of the original statute, the amendment may be deemed
curative, remedial, and applied retroactively). But because the language of the former statute ("shall be punished as
follows") is unambiguous, there is nothing to clarify….
Here, the fact that the defendant's alcohol level was . 015 or over defined a separate offense. As was the case in Nordby, it
increased the penalty above the statutory maximum justified by the jury's findings. Thus, Gore identifies no limitation on
Apprendi's holding that is relevant here.
To repeat the essential holding of Apprendi: other than the fact of a prior conviction, any fact that increases the penalty for
a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. The relevant
inquiry "is one not of form, but of effect-- does the required finding expose the defendant to a greater punishment than that
authorized by the jury's guilty verdict?" Apprendi, 530 U.S. at 494, 120 S.Ct. 2348. The jury's verdict in this case, based on
a finding of an alcohol concentration of at least .08, authorized a license revocation of only 90 days. It **1087 took an
additional finding that her alcohol concentration was 0.15 or above to expose Hopkins to a license revocation of one year.
That critical factual issue should have been submitted to the jury. See Apprendi, 530 U.S. at 477, 120 S.Ct. 2348. Because
it was not, including a one-year license revocation in Hopkins' sentence was error.
The remedy requested by Hopkins is reduction of the license revocation period to 90 days. We agree this is appropriate
relief. See, e.g., State v. Tang, 77 Wash.App. 644, 650-51, 893 P.2d 646, review denied, 127 Wash.2d 1017, 904 P.2d 299
(1995); State v. May, 68 Wash.App. 491, 498, n. 6, 843 P.2d 1102 (1993).
 United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (While indictment’s
failure to include any allegation regarding quantity of drugs involved in alleged conspiracy rendered
conspirators’ enhanced sentences erroneous under Apprendi, error did not seriously affect fairness,
integrity, or public reputation of judicial proceedings, and thus did not rise to the level of plain error given
the overwhelming and uncontroverted evidence of at least 50 grams of cocaine base. Sentence enhancement
affirmed.)
 Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (Defendant convicted
of one count of distributing marijuana and one count of carrying a firearm in relation to drug trafficking
offense. Trial court determined that defendant had “brandished” the gun and sentenced defendant to a
mandatory minimum seven year sentence required for brandishing actions. Supreme Court, in plurality
decision, affirms trial court and holds that the distinction between elements and sentencing factors
continues to be meaningful as to facts increasing the minimum sentence.) —
Once more we consider the distinction the law has drawn between the elements of a crime and factors that influence a
criminal sentence. Legislatures define crimes in terms of the facts that are their essential elements, and constitutional
guarantees attach to these facts. In federal prosecutions, "[n]o person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury" alleging all the elements of the crime. U.S. Const.,
Amdt. 5; see Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). "In all criminal
prosecutions," state and federal, "the accused shall enjoy the right to ... trial ... by an impartial jury," U.S. Const., Amdt. 6;
see Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), at which the government must prove
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each element beyond a reasonable doubt, see In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
Yet not all facts affecting the defendant's punishment are elements. After the accused is convicted, the judge may impose
a sentence within a range provided by statute, basing it on various facts relating to the defendant and the manner in which
the offense was committed. Though these facts may have a substantial impact on the sentence, they are not elements, and
are thus not subject to the Constitution's indictment, jury, and proof requirements. Some statutes also direct judges to give
specific weight to certain facts when choosing the sentence. The statutes do not require these facts, sometimes referred to
as sentencing factors, to be alleged in the indictment, submitted to the jury, or established beyond a reasonable doubt.
The Constitution permits legislatures to make the distinction between elements and sentencing factors, but it imposes
some limitations as well. For if it did not, legislatures could evade the indictment, jury, and proof requirements by labeling
almost every relevant fact a sentencing factor. The Court described one limitation in this respect two Terms ago in
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000): "Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum," whether the statute
calls it an element or a sentencing factor, "must be submitted to a jury, and proved beyond a reasonable doubt." Fourteen
years before, in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), the Court had declined to
adopt a more restrictive constitutional rule. McMillan sustained a statute that increased the minimum penalty for a crime,
though not beyond the statutory maximum, when the sentencing judge found, by a preponderance of the evidence, that the
defendant had possessed a firearm.
The principal question before us is whether McMillan stands after Apprendi….
Read together, McMillan and Apprendi mean that those facts setting the outer limits of a sentence, and of the judicial
power to impose it, are the elements of the crime for the purposes of the constitutional analysis. Within the range
authorized by the jury's verdict, however, the political system may channel judicial discretion--and rely upon judicial
expertise--by requiring defendants to serve minimum terms after judges make certain factual findings. It is critical not to
abandon that understanding at this late date. Legislatures and their constituents have relied upon McMillan to exercise
control over sentencing through dozens of statutes like the one the Court approved in that case. Congress and the States
have conditioned mandatory minimum sentences upon judicial findings that, as here, a firearm was *2420 possessed,
brandished, or discharged, Ala.Code § 13A-5- 6(a)(4) (1994); Kan. Stat. Ann. § 21-4618 (1995); Minn.Stat. Ann. § 609.11
(Supp.2002); N.J. Stat. Ann. §§ 2C:43-6(c), 6(d) (1998); or among other examples, that the victim was over 60 years of
age, 42 Pa. Cons.Stat. § 9717(a) (1998); that the defendant possessed a certain quantity of drugs, Ill. Comp. Stat., ch. 730, §
5/5-5-3(c)(2)(D) (2000); that the victim was related to the defendant, Alaska Stat. § 12.55.125(b) (2000); and that the
defendant was a repeat offender, Md. Ann.Code, Art. 27, § 286 (Supp.2000). We see no reason to overturn those statutes or
cast uncertainty upon the sentences imposed under them.
Reaffirming McMillan and employing the approach outlined in that case, we conclude that the federal provision at issue,
18 U.S.C. § 924(c)(1)(A)(ii), is constitutional. Basing a 2-year increase in the defendant's minimum sentence on a judicial
finding of brandishing does not evade the requirements of the Fifth and Sixth Amendments. Congress "simply took one
factor that has always been considered by sentencing courts to bear on punishment ... and dictated the precise weight to be
given that factor." McMillan, 477 U.S., at 89-90, 106 S.Ct. 2411. That factor need not be alleged in the indictment,
submitted to the jury, or proved beyond a reasonable doubt.
The Court is well aware that many question the wisdom of mandatory minimum sentencing. Mandatory minimums, it is
often said, fail to account for the unique circumstances of offenders who warrant a lesser penalty. See, e.g., Brief for
Families Against Mandatory Minimums Foundation as Amicus Curiae 25, n. 16; cf. Almendarez-Torres, supra, at 245, 118
S.Ct. 1219 (citing United States Sentencing Commission, Mandatory Minimum Penalties in the Federal Criminal Justice
System 26-34 (Aug.1991)). These criticisms may be sound, but they would persist whether the judge or the jury found the
facts giving rise to the minimum. We hold only that the Constitution permits the judge to do so, and we leave the other
questions to Congress, the States, and the democratic processes.
 Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Arizona’s statute permitting
trial judge to determine the presence or absence of aggravating factors for imposition of death penalty after
jury found defendant guilty of first degree murder held unconstitutional.) —
In Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), this Court held that Arizona's sentencing
scheme was compatible with the Sixth Amendment because the additional facts found by the judge qualified as sentencing
considerations, not as "element[s] of the offense of capital murder." Id., at 649, 110 S.Ct. 3047. Ten years later, however,
we decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that the Sixth
Amendment does not permit a defendant to be "expose[d] ... to a penalty exceeding the maximum he would receive if
punished according to the facts reflected in the jury verdict alone." Id., at 483, 120 S.Ct. 2348. This prescription governs,
Apprendi determined, even if the State characterizes the additional findings made by the judge as "sentencing factor[s]."
Id., at 492, 120 S.Ct. 2348.
Apprendi's reasoning is irreconcilable with Walton's holding in this regard, and today we overrule Walton in relevant
part. Capital defendants, no less than non-capital defendants, we conclude, are entitled to a jury determination of any fact
on which the legislature conditions an increase in their maximum punishment….
For the reasons stated, we hold that Walton and Apprendi are irreconcilable; our Sixth Amendment jurisprudence cannot
be home to both. Accordingly, we overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to
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find an aggravating circumstance necessary for imposition of the death penalty. See 497 U.S., at 647-649, 110 S.Ct. 3047.
Because Arizona's enumerated aggravating factors operate as "the functional equivalent of an element of a greater offense,"
Apprendi, 530 U.S., at 494, n. 19, 120 S.Ct. 2348, the Sixth Amendment requires that they be found by a jury….
The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the
factfinding necessary to increase a defendant's sentence by two years, but not the factfinding necessary to put him to death.
We hold that the Sixth Amendment applies to both. The judgment of the Arizona Supreme Court is therefore reversed, and
the case is remanded for further proceedings not inconsistent with this opinion.
Justice Scalia, with whom Justice Thomas joins, concurring–
The quandary is apparent: Should I continue to apply the last-stated principle when I know that the only reason the fact is
essential is that this Court has mistakenly said that the Constitution requires state law to impose such "aggravating
factors"? In Walton, to tell the truth, the Sixth Amendment claim was not put with the clarity it obtained in AlmendarezTorres and Apprendi. There what the appellant argued had to be found by the jury was not all facts essential to imposition
of the death penalty, but rather "every finding of fact underlying the sentencing decision," including not only the
aggravating factors without which the penalty could not be imposed, but also the mitigating factors that might induce a
sentencer to give a lesser punishment. 497 U.S., at 647, 110 S.Ct. 3047 (emphasis added). But even if the point had been
put with greater clarity in Walton, I think I still would have approved the Arizona scheme--I would have favored the States'
freedom to develop their own capital sentencing procedures (already erroneously abridged by Furman) over the logic of the
Apprendi principle.
Since Walton, I have acquired new wisdom that consists of two realizations--or, to put it more critically, have discarded
old ignorance that consisted of the failure to realize two things: First, that it is impossible to identify with certainty those
aggravating factors whose adoption has been wrongfully coerced by Furman, as opposed to those that the State would have
adopted in any event. Some States, for example, already had aggravating- factor requirements for capital murder (e.g.,
murder of a peace officer, see 1965 N.Y. Laws p. 1022 (originally codified at N.Y. Penal Law § 1045)) when Furman was
decided. When such a State has added aggravating factors, are the new ones the Apprendi-exempt product of Furman, and
the old ones not? And even as to those States that did not previously have aggravating- factor requirements, who is to say
that their adoption of a new one today--or, for that matter, even their retention of old ones adopted immediately postFurman--is still the product of that case, and not of a changed social belief that murder simpliciter does not deserve death?
Second, and more important, my observing over the past 12 years the accelerating propensity of both state and federal
legislatures to adopt "sentencing factors" determined by judges that increase punishment beyond what is authorized by the
jury's verdict, and my witnessing the belief of a near majority of my colleagues that this novel practice is perfectly OK, see
Apprendi, supra, at 523, 120 S.Ct. 2348 (O'CONNOR, J., dissenting), cause me to believe that our people's traditional
belief in the right of trial by jury is in perilous decline. That decline is bound to be confirmed, and indeed accelerated, by
the repeated spectacle of a man's going to his death because a judge found that an aggravating factor existed. We cannot
preserve our veneration for the protection of the jury in criminal cases if we render ourselves callous to the need for that
protection by regularly imposing the death penalty without it.
Accordingly, whether or not the States have been erroneously coerced into the adoption of "aggravating factors,"
wherever those factors exist they must be subject to the usual requirements of the common law, and to the requirement
enshrined in our Constitution, in criminal cases: they must be found by the jury beyond a reasonable doubt…
 State v. Smith, 150 Wn.2d 135, 75 P.3d 934 (2003), cert. denied, 541 U.S. 909, 124 S.Ct. 1616, 158
L.Ed.2d 256 (2004) (Persistent Offender Accountability Act (Three strikes you’re out). 5 to 4 decision.
Federal and state constitutions do not require that prior convictions be proved to a jury beyond a reasonable
doubt. Defendant not entitled to jury trial on fact of prior conviction.)
 Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (Under Apprendi,
aggravating factors under Washington’s Sentencing Reform Act other than fact of prior conviction must be
decided by a jury, not judge, unless defendant waives jury trial right.) —
This case requires us to apply the rule we expressed in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000): "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." This rule reflects two
longstanding tenets of common-law criminal jurisprudence: that the "truth of every accusation" against a defendant "should
afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours," 4 W. Blackstone,
Commentaries on the Laws of England 343 (1769), and that "an accusation which lacks any particular fact which the law
makes essential to the punishment is ... no accusation within the requirements of the common law, and it is no accusation in
reason," 1 J. Bishop, Criminal Procedure § 87, p. 55 (2d ed. 1872). [FN5] These principles have been acknowledged by
courts and treatises since the earliest days of graduated sentencing; we compiled the relevant authorities in Apprendi, see
*2537 530 U.S., at 476-483, 489-490, n. 15; id., at 501-518, 120 S.Ct. 2348 (THOMAS, J., concurring), and need not
repeat them here. [FN6] …
Apprendi involved a New Jersey hate-crime statute that authorized a 20-year sentence, despite the usual 10-year maximum,
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if the judge found the crime to have been committed " 'with a purpose to intimidate ... because of race, color, gender,
handicap, religion, sexual orientation or ethnicity.' " Id., at 468-469, 120 S.Ct. 2348 (quoting N.J. Stat. Ann. § 2C:44-3(e)
(West Supp.1999-2000)). In Ring v. Arizona, 536 U.S. 584, 592-593, and n. 1, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002),
we applied Apprendi to an Arizona law that authorized the death penalty if the judge found one of ten aggravating factors.
In each case, we concluded that the defendant's constitutional rights had been violated because the judge had imposed a
sentence greater than the maximum he could have imposed under state law without the challenged factual finding.
Apprendi, supra, at 491-497, 120 S.Ct. 2348; Ring, supra, at 603-609, 122 S.Ct. 2428. …
Our commitment to Apprendi in this context reflects not just respect for longstanding precedent, but the need to give
intelligible content to the right of jury trial. That right is no mere procedural formality, but a fundamental reservation of
*2539 power in our constitutional structure. Just as suffrage ensures the people's ultimate control in the legislative and
executive branches, jury trial is meant to ensure their control in the judiciary. See Letter XV by the Federal Farmer (Jan.
18, 1788), reprinted in 2 The Complete Anti-Federalist 315, 320 (H. Storing ed.1981) (describing the jury as "secur[ing] to
the people at large, their just and rightful controul in the judicial department"); John Adams, Diary Entry (Feb. 12, 1771),
reprinted in 2 Works of John Adams 252, 253 (C. Adams ed. 1850) ("[T]he common people, should have as complete a
control ... in every judgment of a court of judicature" as in the legislature); Letter from Thomas Jefferson to the Abbe
Arnoux (July 19, 1789), reprinted in 15 Papers of Thomas Jefferson 282, 283 (J. Boyd ed. 1958) ("Were I called upon to
decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave
them out of the Legislative"); Jones v. United States, 526 U.S. 227, 244-248, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999).
Apprendi carries out this design by ensuring that the judge's authority to sentence derives wholly from the jury's verdict.
Without that restriction, the jury would not exercise the control that the Framers intended.
Those who would reject Apprendi are resigned to one of two alternatives. The first is that the jury need only find whatever
facts the legislature chooses to label elements of the crime, and that those it labels sentencing factors--no matter how much
they may increase the punishment--may be found by the judge. This would mean, for example, that a judge could sentence
a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it--or
of making an illegal lane change while fleeing the death scene. Not even Apprendi's critics would advocate this absurd
result. Cf. 530 U.S., at 552-553, 120 S.Ct. 2348 (O'CONNOR, J., dissenting). The jury could not function as circuitbreaker
in the State's machinery of justice if it were relegated to making a determination that the defendant at some point did
something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to
punish.…
Ultimately, our decision cannot turn on whether or to what degree trial by jury impairs the efficiency or fairness of criminal
justice. One can certainly argue that both these values would be better served by leaving justice entirely in the hands of
professionals; many nations of the world, particularly those following civil-law traditions, take just that course. There is not
one shred of doubt, however, about the Framers' paradigm for criminal justice: not the civil-law ideal of administrative
perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and
jury. As Apprendi held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential
to the punishment. Under the dissenters' alternative, he has no such right. That should be the end of the matter.
 State v. Alkire, 124 Wn.App. 169, 100 P.3d 837 (Div. 1 2004) (Court’s imposition of exceptional
sentence based upon extraordinary offender score did not violate Blakely. Affirmed.) —
Any fact that increases the penalty for a crime beyond the maximum authorized by the verdict alone--other than the fact of
a prior conviction--must be *172 submitted to a jury and proved beyond a reasonable doubt. [FN1] The sentencing court in
this case imposed an increased penalty based on Jeffrey Alkire's extraordinary offender score. Because the sentence was
authorized by statute and was based solely on facts found by the jury and on the fact of Alkire's prior convictions, the
increased penalty did not violate Alkire's due process or Sixth Amendment rights under Apprendi v. New Jersey and
Blakely v. Washington. We therefore affirm Alkire's exceptional sentence.
 State v. Maestas, 124 Wn.App. 352, 101 P.3d 426 (Div. 1 2004) (Double jeopardy did not bar
imposition of exceptional sentence on case remanded for resentencing due to Blakely violation so long as
Blakely is followed on remand.)
 State v. Borboa, 124 Wn.App. 779, 102 P.3d 183 (Div. 2 2004) (Second degree assault of a child and
first degree rape of a child. Exceptional minimum sentences imposed under nonpersistent offender statute,
RCW 9.94A.712, violate Blakely.)
 State v. Clark, 124 Wn.App. 893, 103 P.3d 262 (Div. 1 2004) (Two counts of second degree rape and
other crimes. Exceptional minimum sentences imposed under nonpersistent offender statute, RCW
9.94A.712, did not violate Blakely.)

State v. Fero, 125 Wn.App. 84, 104 P.3d 49 (Div. 2 2005) (Sentencing error violating Blakely that any
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fact increasing penalty beyond prescribed statutory maximum, other than fact of prior conviction, must be
submitted to jury, rather than judge, and proved beyond a reasonable doubt is not subject to harmless error
analysis, but rather is structural error requiring automatic reversal of sentence; when a trial court imposes
an exceptional sentence not based on the facts reflected in the jury verdict or admitted by the defendant, the
court commits fatal error.)
 United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (Blakely applies to
Federal Sentencing Act. But Act not invalidated because, consistent with Congress’ intent, Act is now more
like guidelines to be followed rather than strictly binding rules.)
 State v. Felix, 125 Wn.App. 575, 105 P.3d 427 (Div. 1 2005) (Trial court’s finding that the case
involved domestic violence did not violate Blakely because the finding did not increase defendant’s
punishment.)
Case Law — Actions Premised upon Promises Not to Sue
 Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987) (Plaintiff filed 1983
action, but had released his right to file a civil rights action in return for a prosecutor’s dismissal of criminal
charges against him. Trial court’s dismissal based upon release upheld; the Supreme Court holding in a 5-4
decision that: (1) mere possibility of harm to important interests of criminal defendant and of society as a
whole does not require per se rule invalidating release-dismissal agreements whereby a criminal defendant
releases his right to file a civil rights action in return for a prosecutor's dismissal of pending criminal
charges, and (2) agreement was enforceable, where defendant voluntarily entered into agreement, and
prosecutor had legitimate reason to make agreement that was directly related to his prosecutorial
responsibilities and was independent of his discretion to bring criminal charges. The dissent would
invalidate all such agreements.) —
Justice O’Connor, concurring—
On the other hand, as the Court acknowledges, release-dismissal agreements potentially threaten the integrity of the
criminal process and preclude vindication of federal civil rights. Permitting such releases may tempt public officials to
bring frivolous criminal charges in order to deter meritorious civil complaints. The risk and expense of a criminal trial can
easily intimidate even an innocent person whose civil and constitutional rights have been violated. Ante, at ----. The
coercive power of criminal process may be twisted to serve the end of suppressing complaints against official abuse, to the
detriment not only of the victim of such abuse, but also of society as a whole.
In addition, the availability of the release option may tempt officials to ignore their public duty by dropping meritorious
criminal prosecutions in order to avoid the risk, expense, and publicity of a § 1983 suit. Ante, at ----. The public has an
interest in seeing its laws faithfully executed. But, officials may give more weight to the private interest in seeing a civil
claim settled than to the public interest in seeing the guilty convicted. By introducing extraneous considerations into the
criminal process, the legitimacy of that process may be compromised. Release-dismissal bargains risk undermining faith in
the fairness of those who administer the criminal process. Finally, the execution of release-dismissal agreements may result
in having to determine whether the prosecutor violated any of his ethical obligations as a lawyer. Ante, at 1193, n. 4.
As the Court indicates, a release-dismissal agreement is not directly analogous to a plea bargain. Ante, at 1192, n. 3. The
legitimacy of plea bargaining depends in large measure upon eliminating extraneous considerations from the process. See
Santobello v. New York, 404 U.S. 257, 260-261, 92 S.Ct. 495, 497-498, 30 L.Ed.2d 427 (1971); *401 Brady v. United
States, 397 U.S. 742, 753, 90 S.Ct. 1463, 1471, 25 L.Ed.2d 747 (1970); ALI, Model Code of Pre-Arraignment Procedure §
350.5(2) (1975). No court would knowingly permit a prosecutor to agree to accept a defendant's plea to a lesser charge in
exchange for the defendant's cash payment to the police officers who arrested him. Rather, the prosecutor is permitted to
consider only legitimate criminal justice concerns in striking his bargain--concerns such as rehabilitation, allocation of
criminal justice resources, the strength of the evidence against the defendant, and the extent of his cooperation with the
authorities. The central problem with the release-dismissal agreement is that public criminal justice interests are explicitly
traded against the private financial interest of the individuals involved in the arrest and prosecution. Moreover, plea
bargaining takes place only under judicial supervision, an important check against abuse. Ante, at 1192, n. 3. Releasedismissal agreements are often reached between the prosecutor and defendant with little or no judicial oversight.
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Nevertheless, the dangers of the release-dismissal agreement do not preclude its enforcement in all cases. The defendants
in a § 1983 suit may establish that a particular release executed in exchange for the dismissal of criminal charges was
voluntarily made, not the product of prosecutorial overreaching, and in the public interest. But they must prove that this is
so; the courts should not presume it as I fear portions of Part III-B of the plurality opinion may imply.
Many factors may bear on whether a release was voluntary and not the product of overreaching, some of which come
readily to mind. The knowledge and experience of the criminal defendant and the circumstances of the execution of the
release, including, importantly, whether the defendant was counseled, are clearly relevant. The nature of the criminal
charges that are pending is also important, for the greater the charge, the greater the coercive effect. The existence of a
legitimate criminal justice objective for obtaining the *402 release will support its validity. And, importantly, the
possibility of abuse is clearly mitigated **1197 if the release-dismissal agreement is executed under judicial supervision.
Close examination of all the factors in this case leads me to concur in the Court's decision that this covenant not to sue is
enforceable. There is ample evidence in the record concerning the circumstances of the execution of this agreement.
Testimony of the prosecutor, defense counsel, and Rumery himself leave little doubt that the agreement was entered into
voluntarily. Ante, at ----. While the charge pending against Rumery was serious--subjecting him to up to seven years in
prison, N.H.Rev.Stat.Ann. § 641:5(I)(b) (1986)--it is one of the lesser felonies under New Hampshire law, and a long
prison term was probably unlikely given the absence of any prior criminal record and the weaknesses in the case against
Rumery. Finally, as the Court correctly notes, the prosecutor had a legitimate reason to enter into this agreement directly
related to his criminal justice function. …
While it would have been preferable, and made this an easier case, had the release-dismissal agreement been concluded
under some form of judicial supervision, I concur in the Court's judgment, and all but Part III-B of its opinion, that
Rumery's § 1983 suit is barred by his valid, voluntary release.
Justice Stevens, with Brennan, Marshall and Blackmun, dissenting—
The plea bargain represents a practical compromise between the prosecutor and the defendant that takes into account
*410 the burdens of litigation and its probable outcome, as well as society's interest in imposing appropriate punishment
upon an admitted wrongdoer. The defendant admits wrongdoing for conduct upon which the **1201 guilty plea is based
and avoids further prosecution; the prosecutor need not go to trial; and an admitted wrongdoer is punished, all under close
judicial supervision. See Fed.Rule Crim.Proc. 11(e). By simultaneously establishing and limiting the defendant's criminal
liability, plea bargains delicately balance individual and social advantage. This mutuality of advantage does not exist in
release-dismissal agreements. A defendant entering a release-dismissal agreement is forced to waive claims based on
official conduct under color of state law, in exchange merely for the assurance that the State will not prosecute him for
conduct for which he has made no admission of wrongdoing. The State is spared the necessity of going to trial, but its
willingness to drop the charge completely indicates that it might not have proceeded with the prosecution in any event.
[FN11] No social interest in the punishment of wrongdoers is satisfied; the only interest vindicated is that of resolving once
and for all the question of § 1983 liability. …
When the prosecutor negotiated the agreement with respondent, he represented three potentially conflicting interests. His
**1202 primary duty, of course, was to represent the sovereign's interest in the evenhanded and effective enforcement of its
criminal laws. See Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). In addition, as the
covenant demonstrates, he sought to represent the interests of the town of Newton and its Police Department in connection
with their possible civil liability to respondent. Finally, as the inclusion of Mary Deary as a covenantee indicates, the
prosecutor also represented the interest of a potential witness who allegedly accused both respondent and a mutual friend of
separate instances of wrongdoing.
If we view the problem from the standpoint of the prosecutor's principal client, the State of New Hampshire, it is
perfectly clear that the release- dismissal agreement was both unnecessary and unjustified. For both the prosecutor and the
State of New Hampshire enjoy absolute immunity from common- law and § 1983 liability arising out of a prosecutor's
decision to initiate criminal proceedings. See Imbler v. Pachtman, 424 U.S. 409, 427, 96 S.Ct. 984, 993, 47 L.Ed.2d 128
(1976). The agreement thus gave the State and the prosecutor no protection that the law did not already provide.
The record in this case indicates that an important reason for obtaining the covenant was "[t]o protect the police
department." [FN15] There is, however, an obvious potential conflict between the prosecutor's duty to enforce the law and
his objective of protecting members of the Police Department who are accused of unlawful conduct. The public is entitled
to have the prosecutor's decision to go forward with a criminal case, or to dismiss it, made independently of his concerns
about the potential damages liability of the Police Department. It is equally clear that this separation of functions *413
cannot be achieved if the prosecutor may use the threat of criminal prosecution as a weapon to obtain a favorable
termination of a civil claim against the police.
In negotiating a release-dismissal agreement, the prosecutor inevitably represents both the public and the police. When
release agreements are enforceable, consideration of the police interest in avoiding damages liability severely hampers the
prosecutor's ability to conform to the strictures of professional responsibility in deciding whether to prosecute. In
particular, the possibility that the suspect will execute a covenant not to sue in exchange for a decision not to prosecute
may well encourage a prosecutor to bring or to continue prosecutions in violation of his or her duty to "refrain from
prosecuting a charge that the prosecutor knows is not supported by probable cause." ABA Model Rules of Professional
Conduct, Rule 3.8(a) (1984). …
The prosecutor's potential conflict of interest increases in magnitude in direct proportion to the seriousness of the charges
of police wrongdoing. Yet a rule that determines the enforceability of a release-dismissal agreement by focusing entirely on
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the quality of the defendant's decision to sign the agreement cannot detect the seriousness of this conflict of interest
because it cannot distinguish the meritorious § 1983 claims from the frivolous ones. On the other hand, if the merits of the
claim must be evaluated in each case in order to decide whether the agreement should be enforced, the agreement would
not serve the goal of saving the litigation costs associated with a trial of the claim itself. The efficiency argument on behalf
of enforcing a release- dismissal agreement thus requires inattention to conflicts of interest in precisely those circumstances
in which the agreement to be enforced is most likely to have been exacted by a prosecutor serving the interests of more
than one constituency.
 State v. Moen, 150 Wn.2d 221, 76 P.3d 721 (2003) (Delivery of mj and possession with intent to
deliver. At defendant’s arrest, police seized 2000 Ford Taurus, $57, a cell phone and a pager. Property held
for civil forfeiture proceedings, which resulted in forfeiture to police. Prosecutor had policy of refusing to
negotiate when compelled to disclose identity of informant. Defendant successfully sought informant’s
name at forfeiture proceeding. Ten months after arrest, defendant charged. Prosecutor refused to negotiate
based on disclosure of informant in civil forfeiture proceeding. Convictions affirmed, policy does not
violate due process.) —
As the State notes, prosecutors have broad discretion whether to charge a crime or enter into plea bargaining. Michielli,
132 Wash.2d at 245, 937 P.2d 587; ABA STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION FUNCTION AND
THE DEFENSE FUNCTION 3-39, at 70-78 (3d ed.1993); Teah R. Lupton, Prosecutorial Discretion, 90 GEO. L.J. 1279,
1280 n.637 (2002) (collecting cases). However that discretion is not "unfettered"; the State's discretionary authority may
not be exercised in a manner that constitutes a violation of due process rights. Wayte v. United States, 470 U.S. 598, 608,
105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). For example, if the prosecutor enters a plea bargain, there is a good faith obligation
not to undercut the terms of the plea agreement, either explicitly or by conduct designed to circumvent the agreement. State
v. Sledge, 133 Wash.2d 828, 841, 947 P.2d 1199 (1997); see Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30
L.Ed.2d 427 (1971) (due process requires state to honor terms of plea agreement); Badgett v. Sec. State Bank, 116
Wash.2d at 569, 807 P.2d 356 (1991) (same). Additionally, a prosecutor is precluded from engaging in selective
enforcement to avoid the substantive **724 goals of the Fourteenth Amendment to the United States Constitution. See
State v. Alonzo, 45 Wash.App. 256, 723 P.2d 1211 (1986). Thus, a prosecutor may not file charges based merely on
vindictiveness, even if the charges are otherwise warranted, nor may a prosecutor threaten or file charges solely to gain
advantage in a civil proceeding. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); United States v.
DeMarco, 550 F.2d 1224, 1227 (9th Cir.1977); MacDonald, at 375.
Moen acknowledges that, in general, a prosecutor's decision to engage in plea bargaining is discretionary. However, like
the prosecutor's conduct in MacDonald, Moen contends that the State's "no plea bargain" policy in this case violates due
process. In MacDonald, the prosecutor offered to dismiss a charge of driving under the influence (DUI) if the defendant
would stipulate to probable cause for his arrest, precluding a civil rights claim. When the defendant declined to stipulate,
the prosecutor withdrew his motion to dismiss the pending DUI charge and moved to add an additional charge of resisting
arrest. MacDonald, 425 F.2d at 374-75. The prosecutor candidly acknowledged that the case against the defendant was
weak and that the only reason he sought the stipulation was to block a likely future civil rights claim based on the
defendant's allegation that the police beat him during the arrest. Id. at 375. The defendant was subsequently acquitted of the
DUI charge but convicted of resisting arrest. The Ninth Circuit granted habeas relief, ruling:
It is no part of the proper duty of a prosecutor to use a criminal prosecution to forestall a civil proceeding by the
defendant against policemen, even where the civil case arises from the events that are also the basis for the
criminal charge. We do not mean that the prosecutor cannot present such a criminal charge. What he cannot do
is condition a voluntary dismissal of a charge upon a stipulation by the defendant that is designed to forestall the
latter's civil case.... Nor can the prosecutor, because of failure to obtain the demanded stipulation, then introduce
another charge in the hope of defeating the possible civil action of the defendant.
MacDonald, 425 F.2d at 375; see also 4 WAYNE R. LAFAVE, JEROLD H. ISRAEL & NANCY J. KING, CRIMINAL
PROCEDURE 13.5(a) (2d ed.2003).
As in MacDonald, Moen argues that the prosecutor's policy here chilled his right to discovery in the civil forfeiture case,
thus violating his right to due process of law. He contends that in order to defend in the civil forfeiture proceeding, it was
necessary to learn the confidential informant's *229 identity. He argues the prosecutor's policy required him to forgo his
constitutional and rule-based right to discovery in the forfeiture case in order to secure an opportunity to plea bargain in his
criminal case. Const. art I, § 22; CrR 4.7. This conduct, he claims, is forbidden by MacDonald.
We are not persuaded. Initially, there are several important distinctions between this case and MacDonald. In MacDonald,
the court had to decide whether a prosecutor misused his discretionary authority to initiate or dismiss charges when he
required the defendant to forgo civil rights claims in exchange for dismissal of criminal charges. Such conduct implicates
the core values of the due process clause as well as long standing ethical rules discouraging the practice. In reaching its
decision to dismiss, the MacDonald court noted the professional responsibility rule that provides, " '[a] lawyer shall not
present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.' "
MacDonald, 425 F.2d at 376 (quoting ABA Code of Professional Responsibility, DR 7-105 (1969)). [FN2]
FN2. It is also noteworthy that since MacDonald was decided, the ABA has expressed cautious approval of the
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practice of seeking a release of civil liability from a defendant, under court supervision. "The prosecutor shall
not condition a dismissal of charges, nolle prosequi, or similar action on the accused's relinquishment of the
right to seek civil redress unless the accused agreed to the action knowingly and intelligently, freely and
voluntarily, and where such waiver is approved by the court." ABA STANDARDS FOR CRIMINAL
JUSTICE: PROSECUTION FUNCTION AND THE DEFENSE FUNCTION 3-39(g), 70-78 (3d ed.1993).
Similarly, under federal law, an agreement to dismiss charges based on an agreement not to sue is not per se
void as against public policy, but must be reviewed on a case by case basis to test if it passes muster. Town of
Newton v. Rumery, 480 U.S. 386, 395, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987).
The conduct condemned in MacDonald is simply not present in this case. Here, the City of Spokane, not the State, initiated
the civil forfeiture action. The State was not involved in the civil proceeding and was not in a position to bargain with
Moen in regard to that claim. The City of Spokane, not the State, stood to gain through the civil proceeding. Thus, unlike
the situation in MacDonald, the *230 prosecutor's policy here is not motivated by a desire to gain an advantage in a civil
action.
Additionally, the refusal to engage in plea bargaining is qualitatively different from the threat to file charges in
MacDonald. A plea bargain is a contract, State v. Mollichi, 132 Wash.2d 80, 91, 936 P.2d 408 (1997), and both sides to the
agreement must perceive an advantage to entering the bargain. From the State's perspective, its "no bargain policy" serves
as a disincentive to defendants considering whether to compel disclosure of confidential informants.
Unquestionably, the State has a legitimate interest in protecting confidential informants. State v. Casal, 103 Wash.2d 812,
815, 699 P.2d 1234 (1985); see also Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)
(acknowledging the importance of both criminal discovery and confidential informants and setting forth procedures for
protecting both). The importance of an informant's identity is highlighted by the fact that it is protected by rule:
Matters Not Subject to Disclosure
(2) Informants. Disclosure of an informant's identity shall not be required where the informant's identity is a
prosecution secret and a failure to disclose will not infringe upon the constitutional rights of the defendant.
CrR 4.7(f)(2). When the State is compelled to disclose an informant's identity, it loses a valuable asset or tool of law
enforcement. Under the policy, the State gains protection of its informants and, in exchange, the defendant receives the
opportunity to bargain for a reduction or dismissal of charges.
We recognize that the prosecutor's policy requires the defendant to forgo his right to request disclosure of an informant's
identity. However, a condition insisted on by the State that requires a defendant to give up a constitutional right does not,
by itself, violate due process. "Agreements to forgo seeking an exceptional sentence, to decline *231 prosecuting all
offenses, to pay restitution on uncharged crimes, and to waive the right to appeal are all permissible components of valid
plea agreements." State v. Lee, 132 Wash.2d 498, 506, 939 P.2d 1223 (1997); see State v. Perkins, 108 Wash.2d 212, 737
P.2d 250 (1987). The theoretical basis for all plea bargaining is that defendants will agree to waive their constitutional
rights. Perkins, 108 Wash.2d at 217, 737 P.2d 250.
More aggressive exercises of prosecutorial authority have been upheld. For example, due process is not violated when a
prosecutor carries out a threat made during plea bargaining to reindict a defendant on more serious charges if the defendant
refuses to plead guilty to lesser charges. Bordenkircher v. Hayes, 434 U.S. 357, 358, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).
The Court noted the distinction between cases where the prosecutor's actions might deter a defendant from exercising a
legal right, which did not necessarily violate due process, and cases where the prosecutor's action was in retaliation for
exercising a right, which violates due process. Id. at 363. Similar to the situation in Bordenkircher, the State's policy in this
case may deter a defendant from seeking to compel disclosure of a confidential informant's identity, but the policy is
intended to protect that identity, not to retaliate for the exercise of the right to discovery nor, as explained, to give an
advantage in a civil action.
We are persuaded that the prosecutor's conduct in this case did not offend due process. We find the trial court did not abuse
its discretion in denying Moen's motion to dismiss.
CONCLUSION
Moen has not demonstrated that the prosecutor's "no plea bargain" policy jeopardized any fundamental right as
contemplated by CrR 8.3(b). We therefore affirm.
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Standard 3-3.10 Role in First Appearance and Preliminary Hearing
(a) A prosecutor who is present at the first appearance (however denominated) of the accused before a judicial officer
should not communicate with the accused unless a waiver of counsel has been entered, except for the purpose of aiding in
obtaining counsel or in arranging for the pretrial release of the accused. A prosecutor should not fail to make reasonable
efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been
given reasonable opportunity to obtain counsel.
(b) The prosecutor should cooperate in good faith in arrangements for release under the prevailing system for pretrial
release.
(c) The prosecutor should not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as
the right to a preliminary hearing.
(d) The prosecutor should not seek a continuance solely for the purpose of mooting the preliminary hearing by securing an
indictment.
(e) Except for good cause, the prosecutor should not seek delay in the preliminary hearing after an arrest has been made if
the accused is in custody.
(f) The prosecutor should ordinarily be present at a preliminary hearing where such hearing is required by law.
Excerpt from Commentary to ABA Standard
“First Appearance of the Accused … [T]he prosecutor should cooperate in implementing relevant ABA Standards in the
chapter on Providing Defense Services, in making sure that the accused has been advised of the right to counsel and has
had the opportunity to exercise this right, and in making arrangements for release of the accused unless unusual
circumstances impose a duty to object to release. With respect to the right to counsel, a prosecutor has acted reasonably and
properly under this Standard if he or she simply lets the judge raise this subject with the accused …”
“The prosecutor should not ask for excessive bail to prevent release or in an attempt to coerce a plea agreement or other
concessions through the accused’s continuing incarceration …”
“Since eventually (if not immediately) counsel will usually represent the accused, the prosecutor should not communicate
with the defendant at or after the first appearance of the accused before a judicial officer until arrangements for legal
representation have been made or counsel is waived, unless the prosecutor’s reasons for doing so relate strictly to obtaining
counsel for the accused or assisting in arrangements for pretrial release …”
“Seeking Uncounseled Waivers or Continuances … [P]rosecutors should not seek to obtain waivers of preliminary
hearings or any important pretrial rights from unrepresented accused persons. This proscription does not apply, however, to
an accused person appearing pro se with the approval of the tribunal nor does it forbid the questioning of a person who has
lawfully waived his or her rights to counsel or to remain silent …”
“Appearance at Preliminary Hearing. The prosecutor should ordinarily be present at the preliminary hearing.”
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Standard 3-3.11 Disclosure of Evidence by the Prosecutor
(a) A prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity,
of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense
charged or which would tend to reduce the punishment of the accused.
(b) A prosecutor should not fail to make a reasonably diligent effort to comply with a legally proper discovery request.
(c) A prosecutor should not intentionally avoid pursuit of evidence because he or she believes it will damage the
prosecution's case or aid the accused.
Excerpt from Commentary to ABA Standard
“Withholding Evidence of Innocence. A prosecutor has the responsibility of a minister of justice and not simply that of an
advocate. This responsibility carries with it specific obligations to see that the accused is accorded procedural justice and
that guilt is decided upon the basis of sufficient evidence, including consideration of exculpatory evidence known to the
prosecutor …”
“Compliance with Discovery. The development of discovery procedures in criminal cases entails obligations on the part of
prosecutors to seek diligently and in good faith to make the procedures function effectively. Prosecutors should not compel
defense counsel to resort to a court order for discovery in order to harass the defense, make discovery more costly, or
obstruct the flow of information when the prosecutor knows the information sought is discoverable …”
“[M]any experienced prosecutors have habitually disclosed most, if not all, of their evidence to defense counsel. This
practice, it is believed, often leads to guilty pleas in cases that would otherwise be tried. A defense preview of a strong
prosecution case, for example, frequently strengthens the posture of a defense lawyer who is trying to persuade the
defendant that a guilty plea is in the defendant’s best interest. Voluntary disclosure also serves to open areas in which the
parties can stipulate to undisputed or other facts for which a courtroom contest is a waste of time.”
“Intentional Ignorance of Facts … A prosecutor may not properly refrain from investigation in order to avoid coming into
possession of evidence that may weaken the prosecution’s case, independent of whether disclosure to the defense may be
required. The duty of the prosecutor is to acquire all the relevant evidence without regard to its impact on the success of the
prosecution.”
Case Law — Constitutional Duty to Disclose Exculpatory Evidence (Brady Rule)
 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963) (prosecutor’s failure
to disclose co-defendant’s confession violated Due Process, and necessitated new penalty phase in death
penalty case) —
We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.
The principle … is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the
accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the
administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of
Justice states the proposition candidly for the federal domain: ‘The United States wins its point whenever justice is done its
citizens in the courts.’ A prosecution that withholds evidence on demand of an accused which, if made available, would
tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the
prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the
present case, his action is not ‘the result of guile,’ to use the words of the Court of Appeals.…
 Wood v. Bartholomew, 516 U.S. 1, 116 S.Ct. 7, 10, 133 L.Ed.2d 1 (1995) (prosecutor’s failure to
disclose fact that witness had failed polygraph test did not deprive defendant of “material” evidence under
Brady rule, absent reasonable likelihood that disclosure of polygraph results would have resulted in
different outcome at trial) —
[E]vidence is “material” under Brady, and the failure to disclose it justifies setting aside a conviction, only where there
exists a “reasonable probability” that had the evidence been disclosed the result at trial would have been different. Kyles v.
Whitley, 514 U.S. ___, 115 S.Ct. 1555, 1565-66, 131 L.Ed.2d 490 (1995); United States v. Bagley, 473 U.S. 667, 682, 105
S.Ct. 3375, 3383-84, 87 L.Ed.2d 481 (1985) (opinion of Blackmun, J.); id., at 685, 105 S.Ct., at 3385 (White, J.,
concurring in part and concurring in judgment). To begin with, on the Court of Appeals’ own assumption, the polygraph
results were inadmissible under state law, even for impeachment purposes, absent a stipulation by the parties, see 34 F.3d,
at 875 (citing State v. Ellison, supra), and the parties do not contend otherwise. The information at issue here, then — the
results of a polygraph examination of one of the witnesses — is not “evidence” at all. Disclosure of the polygraph results,
then, could have had no direct effect on the outcome of trial, because respondent could have made no mention of them
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either during argument or while questioning witnesses.
 State v. Luvene, 127 Wn.2d 690, 704, 903 P.2d 960 (1995) (prosecutor’s failure to reveal exculpatory
evidence violates a defendant’s due process rights).
 In re Gentry, 137 Wn.2d 378, 395-97, 399-400, 972 P.2d 1250 (1999) (Capital case. Conviction
affirmed.) —
Due process requires the State to disclose “evidence that is both favorable to the accused and ‘material either to guilt or
to punishment.’” United States v. Bagley, 473 U.S. 667, 674, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (quoting Brady v.
Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). There is no Brady violation, however, “if the
defendant, using reasonable diligence, could have obtained the information” at issue. In re Personal Restraint of Benn,
134 Wash.2d 868, 916, 952 P.2d 116 (1998).
Moreover, evidence is “material” and therefore must be disclosed under Brady “only if ‘there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” United
States v. Bagley, 473 U.S. at 682, 105 S.Ct. 3375; Benn, 134 Wash.2d at 916, 952 P.2d 116. In applying this “reasonable
probability” standard, the “question is not whether the defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict
worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Benn, 134
Wash.2d at 916, 952 P.2d 116. “A ‘reasonable probability’ of a different result is accordingly shown when the
government’s evidentiary suppression ‘undermines confidence in the outcome of trial.’ “ Id. (quoting Bagley, 473 U.S. at
678, 105 S.Ct. 3375). Gentry contends the State failed to reveal evidence he could have used to impeach Dyste, Hicks,
and Smith. Each of the witnesses was subjected at trial to extensive crossexamination and, in some instances, defense
counsel impeached the witnesses with extensive criminal histories. Each witness denied receiving anything of value from
the State in exchange for his testimony.
Gentry’s current counsel have appended several documents to the PRP that allegedly show Smith, Hicks, and Dyste lied
when they said they received no benefit for testifying. The defense also argues Hicks and Smith conspired to give false
testimony against Gentry.
The prosecution provided Gentry’s trial counsel with the informant’s criminal histories, including the cause numbers on
their prior convictions. Gentry’s current attorneys used that information to obtain many of the court documents they now
characterize as “ Brady materials.” These additional documents were as accessible to trial counsel as they were to
Gentry’s current counsel. Significantly, the trial court authorized appointment of a defense investigator who, according to
the bills submitted to the court clerk, spent some of his time interviewing the informants. The court records of their prior
convictions, plea bargains and the like, were not withheld from the defense. …
Brady requires only that prosecutors discover and disclose “any favorable evidence known to the others acting on the
government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. at 437, 115 S.Ct. 1555. While the
prosecution cannot avoid Brady by keeping itself ignorant of matters known to other state agents, United States v.
Hamilton, 107 F.3d 499, 509 (7th Cir.1997), the State has no duty to search for exculpatory evidence. State v. Judge, 100
Wash.2d 706, 717, 675 P.2d 219 (1984). Thus, since no state agent ever possessed the information contained in Peck’s
affidavit, it is not “ Brady material.” Rice, 118 Wash.2d at 888, 828 P.2d 1086.
Moreover, proving Smith and Hicks planned to get revenge against Gentry only would have given the jury an additional
reason to doubt their testimony regarding Gentry’s admissions. The defense was able to impeach their credibility with
their extensive criminal histories, including Hicks’ conviction for perjury. Smith admitted Hicks named him as a person
who was at the card table and had information about the murder. And Hicks admitted he could have learned many of the
details about the murder from television and newspaper stories. The witnesses were, to that extent, effectively impeached.
Whether because of that impeachment or simply because it found Hicks incredible, the jury did not credit his claim Gentry
admitted having sex with the victim. It acquitted Gentry of the rape allegation, finding at most an attempted rape, which
defense counsel conceded had been proven.
In conclusion, some of the evidence Gentry has provided could readily have been discovered by trial counsel or was not
known to the State. Some of the evidence could have been used to impeach one or more of the informants, but in the light
of all the circumstances, we cannot say the unavailability of this minimal additional impeachment “actually and
substantially prejudiced” Gentry. Lord, 123 Wash.2d at 303, 868 P.2d 835.
 Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999) (Capital case habeas
proceeding. Prosecutor failed to disclose exculpatory materials (police notes and letters written to
detective) that cast serious doubt on eyewitness’s testimony. Supreme Court rules that Brady was violated,
but that no prejudice suffered since even if witness was severely impeached or testimony excluded,
defendant received fair trial since verdict worthy of confidence. Conviction affirmed.) —
In Brady this Court held “that the suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad
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faith of the prosecution.” Brady v. Maryland, 373 U.S., at 87, 83 S.Ct. 1194. We have since held that the duty to disclose
such evidence is applicable even though there has been no request by the accused...and that the duty encompasses
impeachment evidence as well as exculpatory evidence...Such evidence is material “if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would have been different.”...Moreover, the
rule encompasses evidence “known only to police investigators and not to the prosecutor.”...In order to comply with Brady,
therefore, “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the
government’s behalf in this case, including the police.” …
These cases, together with earlier cases condemning the knowing use of perjured testimony, illustrate the special
role played by the American prosecutor in the search for truth in criminal trials. Within the federal system, for
example, we have said that the United States Attorney is “the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern
at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be
done. This special status explains both the basis for the prosecution’s broad duty of disclosure and our conclusion that not
every violation of that duty necessarily establishes that the outcome was unjust. Thus the term “Brady violation” is
sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence—that is, to any suppression
of so-called “Brady material”—although, strictly speaking, there is never a real “Brady violation” unless the nondisclosure
was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.
There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.
 Anderson v. Calderon, 232 F.3d 1053 (9th Cir. 2000), cert. denied, 535 U.S. 1036, 122 S.Ct. 580, 151
L.Ed.2d 451 (2001) (Capital habeas corpus petition denied. No Brady violation found) —
Because Brady does not require bad faith on the part of the prosecution for a violation of due process, the rule
encompasses evidence “known only to police investigators and not to the prosecutor.” Kyles, 514 U.S. at 438, 115 S.Ct.
1555. In order to comply with Brady, therefore, “the individual prosecutor has a duty to learn of any favorable evidence
known to the others acting on the government’s behalf in the case, including the police.” Id. at 437, 115 S.Ct. 1555.
We use a three-part test to measure whether a failure to disclose amounted to a Brady violation: (1) the evidence at issue
must be “favorable” to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must
have been suppressed by the State, either willfully or inadvertently; and (3) the suppressed evidence must be “material”
under state law to the accused’s guilt or punishment--i.e., prejudice must have ensued. See Strickler v. Greene, 527 U.S.
263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also United States v. Cooper, 173 F.3d 1192, 1202 (9th
Cir.1999).”
 State v. McReynolds, 104 Wn.App. 560, 17 P.3d 608 (Div. 3 2000), review denied, 144 Wn.2d 1003,
29 P.3d 719 (2001) (Multiple counts of stolen property. Convictions reversed and remanded due to invalid
warrant. No Brady violation found.)
 State v. Burden, 104 Wn.App. 507, 17 P.3d 1211 (Div. 2 2001) (Possession of drugs. First trial ended
in mistrial, and trial court dismissed. Court of Appeals reversed dismissal. On the date set for retrial,
exhibits were missing from the court clerk’s office. Trial court determined that exhibits were materially
exculpatory, and dismissed. Division 2 affirms dismissal.)
 State v. Donahue, 105 Wn.App. 67, 18 P.3d 608, review denied, 144 Wn.2d 1010, 31 P.3d 1184 (Div.
2 2001) (Vehicular homicide by DUI. No Brady violation found where blood destroyed after testing) —
Here, the exculpatory value of the blood was not apparent; it was more than twice over the per se limit. There was no
hint that the test results had been tampered with or that the test results were faulty. There was nothing to indicate that the
blood sample contained any exculpatory value. Thus, it was not material exculpatory evidence. It was, at best, only
potentially useful to the defense.
Failure to preserve potentially useful evidence does not constitute a denial of due process unless a criminal defendant can
show bad faith on the part of the State. Wittenbarger, 124 Wash.2d at 477, 880 P.2d 517; Arizona v. Youngblood, 488 U.S.
51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).
In this case, Detective Stockwell had no reason to believe that the test results were faulty. He testified that he did not
think about asking the Oregon hospital for the blood sample as evidence. There is no state trooper protocol for dealing with
an *615 out-of-state hospital that has blood samples and has performed blood alcohol tests. Moreover, the blood sample
was never in the possession of the police. The Oregon hospital had the blood sample and later disposed of it according to
their standard procedure. There was no indication that the detective by design or with malice refused to obtain the blood
sample. Contrary to Donahue’s contentions, the officers’ inability to smell alcohol at the scene of the accident doe