LexisNexis Practice Guide: Washington Criminal Law
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LexisNexis Practice Guide: Washington Criminal Law takes the place of the retired Washington Criminal Practice in Courts of Limited Jurisdiction. Author Linda Portnoy partnered with attorney and Judge Lisa Leone to write the book. In addition to receiving feedback from reviewers from county prosecutor offices and private defense attorneys, we were fortunate to have the benefit of Judge Ronald Kessler, a retired King County Superior Court judge and author of the Criminal Caselaw Notebook, as our publication’s reviewing editor and legal consultant.
The new title is a comprehensive criminal law book, covering both felony and misdemeanor state practice. This single volume book contains many additional subjects important to the practice of criminal. Each of the 25 chapters is carefully crafted to contain the essentials for trial practice with a focus on the most authoritative and current state and federal caselaw, rules and statutes; it is written with defense, prosecution and judges in mind. The book is also practice oriented, with many forms and checklists.
Note: The 2019 update includes new caselaw through 8 Wn. App. 2d, No. 4 and 193 Wn.2d No. 7.
The 2019 edition includes updates to case law, statutes and court rules. Additional material includes:
Chapter 5: Charging the Offense
• Statute of limitations - where time is not a material element of the charged crime the language “on or about” is sufficient to admit proof of the act within the statute of limitations as long as there is no defense of alibi. State v. Yallup, 3 Wn. App. 2d 546 (2018)(rev. denied). § 5.03.
• Elements of the offense - court holds there is no logical or legal basis for holding that the elements of the crime for purposes of 6th amendment right to trial by jury are different than the elements for purposes of 5th amendment prohibition against double jeopardy. State v. Allen, 192 Wn. App. 2d 526 (2018). § 5.05.
• Proof of prior conviction as element of offense - trial court need not accept stipulation to a prior conviction in a felony violation of a no-contact order prosecution; court declines to apply Old Chief rationale in this context. State v. Taylor, — Wn.2d — (2019). § 5.05.
• Citizen complaints - limited jurisdiction courts have discretion to authorize a citizen to file a citizen complaint under the court rule; standard by review in Superior Court is abuse of discretion and not de novo; court declined to address constitutional separation of powers issue. Matter of Ware, 5 Wn. App. 2d 658 (2018). § 5.11.
• Amending the charging document - the long-held rule in Pelkey is not meant to be applied in a formulistic way. Where the state has not formally rested its case but has informed the court that after its motion to amend (whether granted or not) it will rest, then for purposes of the Pelkey rule it has completed its case in chief and has functionally rested. Under such circumstances, allowing the state to amend to a different or additional crime violates the defendant’s constitutional rights. State v. Gherke, 193 Wn.2d 1 (2019). § 5.21.
Chapter 6: Preliminary Appearance, Arraignment and Speedy Trial
• Preliminary appearance –a preliminary appearance must take place no later than the close of business the next judicial day even if the defendant files a notice of disqualification at the time of the preliminary appearance. Court may find circumstances where court congestion or judicial unavailability justifies delay but court must make factual record. State v. Khandelwal, 6 Wn. App. 2d 323 (2018)(rev. denied). § 6.05.
• Speedy trial - defendant in custody – defendant cannot request continued incarceration in order to force expiration of in custody speedy trial period. State v. Maling, 6 Wn. App. 2d 838 (2018)(rev. denied). § 6.17.
Chapter 7: Bail and Pretrial Release
• Fixing of bail under CrR 3.2 –before imposing monetary bail, court must consider whether a less restrictive condition or combination of conditions would reasonably assure the safety of the community. This is true even where the court concludes that the defendant poses a substantial danger of committing a violent crime if released on personal recognizance. State v. Huckins, 5 Wn. App. 2d 457 (2018); State v. Ingram, — Wn. App. 2d — (2019). § 7.04.
• Failure to appear and forfeiture of bail - statutory provisions that apply to forfeiture of bail bonds does not apply to cash bail posted by or on behalf of defendant. Where defendant fails to appear, forfeiture of cash bail is permitted after the accused reappears in court and even after entry of judgment and sentence. State v. Jeglum, — Wn. App. 2d —, 442 P.3d 1 (2019). § 7.06.
Chapter 8: Right to Counsel and Expert Services
• Waiver of right to counsel - defendant cannot waive the right to effective assistance of counsel in a plea agreement. State v. Schorr, 191 Wn. App. 2d 315 (2018). § 8.17.
• Ineffective assistance of counsel - matters that go to trial strategy or tactics do not show deficient performance, defendant must overcome this presumption by a showing that there is no legitimate trial tactic explaining counsel’s performance. State v. Crow, 8 Wn. App. 2d 480 (2019). § 8.18.
• Waiver of right to counsel - before granting request to proceed pro se, court must determine (1) whether the request is timely and unequivocal; (2) whether the defendant is making a knowingly, voluntarily and intelligent waiver of right to counsel; and, (3) whether the decision is made with knowledge of the consequences and seriousness of the charges. State v. Burns, 193 Wn.2d 190 (2019). § 8.20.
• Waiver of right to counsel – equivocation - an unequivocal request to proceed pro se requires defendant to make an explicit choice between right to counsel and right to self-representation so that court may be reasonably certain that the defendant wishes to represent himself or herself. State v. Curry, 191 Wn.2d 475 (2018). § 8.21.
• Pro se defendant’s access to legal resources –defendant represented by counsel is not entitled to the same scope of access to legal resources as a pro se defendant because a defendant is not entitled to act as his or her own “hybrid representation”. State v. Davis, 3 Wn. App. 2d 763 (2018). § 8.28.
• Interpreters – expanded discussion of GR 11.1 governing creation of interpreter commission; discussion of GR 11.2, governing code of professional conduct for interpreters. § 8.39.
• Substitution of counsel for conflict of interest –where there is an actual conflict of interest, counsel must be allowed to withdraw and new counsel substituted. To establish a claim of ineffective assistance of counsel based on conflict of interest, defendant must show (1) presence of conflict of interest, and (2) that the conflict adversely affected the attorney’s performance. Where the defendant establishes both prongs of this test, prejudice is presumed. State v. Kitt, 442 P.3d 1280 (2019). § 8.35.
Chapter 11: Pleas
• Ineffective assistance of counsel at arraignment - court finds ineffective where defense counsel failed to advise defendant of his right to plead guilty at arraignment. Matter of Burlingame, 3 Wn. App. 2d 600 (2018). §11.07.
• Ineffective assistance of counsel at entry of guilty plea - defense counsel’s failure to provide defendant with correct sentencing range prior to entry of guilty plea constitutes ineffective assistance of counsel. State v. Drath, 7 Wn. App. 2d 255. §11.11.
• Guilty plea must be made knowingly and voluntarily - when defendant makes an oral statement that contradicts the written statement of guilty court may find that the plea is not knowingly and voluntarily made. State v. Taylor, 4 Wn. App. 2d 381 (2018). §11.12.
• Right to effective assistance of counsel at plea bargaining stage - defendant cannot waive the right to effective assistance of counsel in a plea agreement. Matter of Schorr, 191 Wn.2d 315 (2018). §11.20.
• Plea to non-existent charge - due process is violated where defendant pleads guilty pursuant to a beneficial plea agreement and it is later determined that the defendant pled guilty to a non-existent crime. In re Pers. Restraint of Knight, 4 Wn. App. 2d 248 (2018). §11.25.
Chapter 14: Competency, Insanity, and Diminished Capacity
• Initial order for competency evaluation – a court must make a threshold determination to doubt competency before ordering a competency evaluation. Once trial court determines defendant is competent, it need not revisit the issue unless there is “new information” to show defendant’s mental condition has changed since the original finding. State v. Fedoruk, 5 Wn. App. 2d 317 (2018)(rev. denied). §14.04.
• RCW 10.77 – discussion of 2019 amendments to RCW 10.77 regarding out of custody competency restoration and civil commitment following finding of incompetency. §14.07
Chapter 15: Lawful Use of Force and Selected Defenses
• Use of force and defense of property – defense of property instruction not available when there is a valid court order prohibiting the defendant from contacting the protected party. State v. Yellovich, 191 Wn.2d 774 (2018). §15.05.
• First aggressor instruction – if there is conflicting evidence as to whether defendant’s conduct provoked the conflict, a first aggressor instruction is appropriate. State v. Espinoza, 8 Wn. App. 2d 353 (2019). §15.07.
• Duress defense – duress defense cannot be applied to those charges alleged as aggravating factors. State v. Whitaker, 6 Wn. App. 2d 1 (2018). §15.12.
• Necessity defense – defense of medical necessity is an available common law defense to marijuana possession even though Washington has legalized marijuana. State v. Ruelas, 7 Wn. App. 2d 887 (2019). §15.13.
• Voluntary intoxication – where voluntary intoxication is drug-related, there must be competent evidence that the drug affected the defendant’s ability to form the requisite mental state. State v. Classen, 4 Wn. App. 2d 520 (2018). §15.15.
Chapter 17: Pretrial Motions to Suppress Statements and Evidence Under CrR 3.5 and CrR 3.6
• Constitutional challenge under state constitution - court clarified that a Gunwall analysis is not required to justify an independent analysis of art. 1, sec. 7 in new contexts; when addressing the merits, parties must provide argument and relevant authority supporting the specific outcome they seek in light of the constitutional text, the historical treatment of the interest at stake, the current implications of recognizing or not recognizing an interest. State v. Mayfield, 192 Wn. App. 2d 871 (2019). §17.11.
Chapter 21: Selected Trial and Post-verdict motions
• Motions in limine – making an offer of proof – an offer of proof should inform the judge of the following: (1) the legal theory under which the offered evidence is admissible; and, (2) the specific nature of the offered evidence so the court can determine its admissibility. The attorney must create an adequate record for appellate review. State v. Burnam, 4 Wn. App. 368 (2018)(rev. denied). §21.06.
• One year limit for collateral attack – a defendant, in a plea agreement, cannot validly waive the right to challenge a sentence that exceeds the court’s statutory authority (sentence violated jeopardy). Matter of Schorr, 191 Wn.2d 315 (2018). §21.24.
• Collateral attack on a judgment and sentence - petitioner alleging constitutional error has burden of establishing of showing by a preponderance of the evidence he or she was actually or substantially prejudiced by the error. Matter of Meippen, 193 Wn.2d 310 (2019). §21.24.
• Motion for new trial based on newly discovered evidence - the court reviews a claim of newly discovered evidence raised in a personal restraint petition on the same test as newly discovered evidence asserted in a motion for a new trial. In Re Fero, 190 Wn.2d 1 (2018). §21.26.
Chapter 22: Jury Selection and Instructions
• Legal qualifications for jury service – discussion of amendments to RCW 2.36.070 governing qualifications to sit as a juror; statute amended to add definition of restoration of civil rights. §22.05.
• Juror disqualification based on actual bias – discussion of two new cases discussing the trial court’s independent obligation to dismiss a juror for actual bias regardless of inaction by counsel or the defendant. State v. Sassen Van Elsloo, 191 Wn.2d 798 (2018); State v. Phillips, 6 Wn. App. 2d 451 (2018) (rev. denied).
• Peremptory challenge - while it is error to give lesser number of peremptory challenges than the court rules provides, such error on its own does not rise to the level of structural error on appeal. State v. Meredith, 191 Wn.2d 300 (2018). §22.12.
• GR 37 and Batson test in Washington – Washington Supreme Court modified the third step in the Batson analysis where a peremptory challenge involves race or ethnicity; trial court must inquire whether “an objective observer” could view race or ethnicity as a factor in the exercise of the peremptory strike, if so then the strike must be denied, and the challenge to that strike must be accepted. This modification brings the Batson test in Washington in line with the requirements of GR 37. While GR 37 applies prospectively to trials occurring after the rule’s effective date (04/24/18), the modified Batson test applies retroactively. State v. Jefferson, 192 Wn.2d 225 (2018). §22.14.
• Right to unanimous jury verdict – 6th amendment requires that a jury must unanimously find beyond a reasonable doubt any aggravating circumstances that increase a defendant’s sentence. State v. Joseph, 3 Wn. App. 2d 365 (2018)(rev. denied). §22.24.
Chapter 23: Felony Sentencing
• Challenging use of prior conviction at sentencing - defendant must show constitutional facial invalidity of challenged conviction. State v. Blair, 191 Wn.2d 155 (2018). §23.04.
• Expanded discussion of constitutional challenges to conditions of community custody. §23.04.
• Exceptional sentence outside presumptive standard range – where defendant is sentenced to consecutive terms of confinement, early release time is tolled until the expiration of all periods of total confinement. In re Pers. Restraint of Gronquist, 193 Wn.2d 309 (2018). §23.07.
• Double jeopardy and aggravating circumstances - acquittal on aggravating circumstances for murder in the first degree bars retrial on those aggravating circumstances on double jeopardy grounds. State v. Allen, 192 Wn.2d 526 (2018). §23.07.
• DOSA sentence - trial court may not waive a statutorily-required sentence enhancement or portions of a base sentence to arrive at a standard sentencing range that has a mid-point low enough to qualify for a residential based DOSA. State v. Yancey, 193 Wn.2d 26 (2019). §23.l3.
• DOSA revocation - a defendant facing revocation of a DOSA is entitled to same minimal due process rights for revocation of probation or parole. In Re Schley, 191 Wn.2d 278 (2018). §23.l3.
• 23.23 Mandatory LFOs - appropriate remedy for improper imposition of mandatory LFO is remand for trial court to amend the judgment and sentence to strike the LFO. State v Ramirez, 191 Wn.2d 732 (2018).
Chapter 24: Sentencing and Probation in Courts of Limited Jurisdiction
• Duration of DV NCOs on non-felony DV offenses: 2019 amendments to 10.99.050 allow DV NCO to remain in effect for fixed period of time not to exceed 5 years. §24.11.
• Therapeutic courts - consent of prosecutor is required for defendant to enter therapeutic court. State v. Daniels, 8 Wn. App. 2d 160 (2019). §29.24.
Chapter 25: Rights of Crime Victims in Washington
• 25.19 – new section added highlighting protections for victims of prostitution.
• 25.04 – discussion of new law allowing presence of courthouse facility dog for witnesses while testifying in court.
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Table of Contents
Chapter 1 THE ROLE AND AUTHORITY OF THE PROSECUTOR
Chapter 2 REPRESENTING THE ACCUSED
Chapter 3 JURISDICTION AND VENUE
Chapter 4 CRIMINAL LIABILITY: COMPLICITY, ATTEMPT, CONSPIRACY AND SOLICITATION
Chapter 5 CHARGING THE OFFENSE
Chapter 6 PRELIMINARY APPEARANCE, ARRAIGNMENT AND SPEEDY TRIAL
Chapter 7 BAIL AND PRETRIAL RELEASE
Chapter 8 RIGHT TO COUNSEL AND EXPERT SERVICES
Chapter 9 DISCOVERY
Chapter 10 PRETRIAL DISPOSITIONS
Chapter 11 PLEAS
Chapter 12 JOINDER AND SEVERANCE
Chapter 13 FUNDAMENTALS OF ASSERTING A DEFENSE AT TRIAL
Chapter 14 COMPETENCY, INSANITY AND DIMINISHED CAPACITY
Chapter 15 LAWFUL USE OF FORCE AND SELECTED DEFENSES
Chapter 16 PRETRIAL MOTIONS TO DISMISS
Chapter 17 PRETRIAL MOTIONS TO SUPPRESS STATEMENTS AND EVIDENCE UNDER CrR 3.5 AND CrR 3.6
Chapter 18 JUDICIAL DISQUALIFICATION
Chapter 19 RIGHT TO TRIAL BY JURY AND PUBLIC TRIAL RIGHTS
Chapter 20 PROSECUTORIAL MISCONDUCT
Chapter 21 SELECTED TRIAL AND POST-VERDICT MOTIONS
Chapter 22 JURY SELECTION AND INSTRUCTIONS
Chapter 23 FELONY SENTENCING
Chapter 24 SENTENCING AND PROBATION IN COURTS OF LIMITED JURISDICTION
Chapter 25 RIGHTS OF CRIME VICTIMS IN WASHINGTON