Washington’s Privacy Act does not apply to Defendant’s inadvertant recording

In the recent Washington Supreme Court decision, State v. John Garrett Smith, the defendant was convicted of seriously injuring his wife. During the assault, the Defendant used the home’s land line phone to call his cell phone in an attempt to locate the cell phone (which the defendant had misplaced). Unbeknownst the defendant, when he called his cell phone and did not answer the cell phone went to his voice mail and started recording a message (because the land line phone was still on). The voice mail message recorded his wife screaming and also contained other key pieces of evidence. Eventually, the prosecutor obtained this voice message and used it against the defendant at trial.

The defendant was convicted at trial but appealed, arguing, among other things, that the prosecutor’s use of the voice mail message violated Washington’s privacy act, which is found in RCW 9.73.030. In a nutshell, that statute requires a person’s consent to record a private conversation.

The court held that this voice message did not contain a “conversation” within the meaning of the privacy act. Since the privacy act did not apply, no consent was needed. Furthermore, the court added that even if the voice message was a “conversation” under the privacy act, the defendant implicitly consented to the recording since he was the one who initiated it (and despite the fact the defendant did not intentionally record the conversation or was even aware of the recording). And while he did not obtain his wife’s consent prior to making the recording, there is an exception to the consent rule in the privacy act for conversations that contain threats or are an emergency in nature. Accordingly, the court allowed the use of the voice message at trial and upheld the conviction.

A person’s immigration status is inadmissible at trial

The Seattle Times had an article today outlining a case that was the impetus for the Washington Supreme Court’s new evidence rule making a person’s immigration status inadmissible at trial regardless of whether it is a criminal or civil trial. You can read the new rule here. The person’s immigration status is generally inadmissible unless the party trying to introduce this evidence can show that it is essential to prove party’s cause of action, an element of the criminal offense (or defense to the charge), or to show bias or prejudice of a witness. The new rule is listed as ER 413.

Civil case is not always stayed for criminal case to resolve

King v. Olympic Pipeline stands for the position that if there is both a civil and criminal case stemming from the same incident, the defendant may request that the civil matter be stayed until the criminal case is resolved. This can occur in a domestic violence incident where criminal charges are filed, and there may also be a civil protection order or personal injury law suit pending that was filed by the victim. In a criminal case, a defendant has a 5th amendment right to not testify and incriminate themselves, so the logic being resolve the criminal case first, and then turn to the civil case second. However, in the recent decision of Smith v. Smith, the court ruled that this is not always the case. In the decision, the court denied the Defendant’s request to stay the civil case until the criminal case was resolved because the court found that the Olympic Pipeline factors weighed against the defendant.

New trial after no award for pain and suffering

In a recent decision stemming from the Pierce County Superior Court case, Meinhart v. Anaya, the plaintiffs prevailed at a jury trial and the jury awarded the plaintiffs nearly all of their requested medical expenses, but for some reason, the jury declined to award the plaintiffs any noneconomic damages (pain and suffering). The plaintiffs’ attorney requested a new trial based on this unusual verdict, but the court denied the request. On appeal, the court held that because “[t]here was no evidence from which the jury could have concluded that [the plaintiffs] suffered no pain and suffering” that the “trial court abused its discretion in denying the [plaintiffs’] motion for a new trial.”

With higher car-tab fees, will more drivers be stopped for expired vehicle tabs?

The Seattle Times had an article today about whether the Sound Transit 3 (ST3) increased vehicle registration fees in the greater Puget Sound region would cause drivers to skip renewing their vehicle registration when due and instead continue to drive on expired tabs. The article points out that while illegal, financially, this could make sense. While the article correctly points out that driving on expired tabs is an infraction, punishable by a fine (and not jail) another thing to consider is that driving with expired tabs would give police the power to pull you over anytime. Police can lawfully stop a vehicle when there is reasonable suspicion that the vehicle is committing an infraction. This legal stop can then turn into a criminal investigation say, for instance, the officer observes an odor of alcohol or marijuana coming from the vehicle.

Should you take the Field Sobriety Tests?

Should a person agree to perform the Standardized Field Sobriety Tests (SFSTs)? That question has become even harder to answer after the decision of State v. Mecham. In the case, the officer asked Mecham if he would voluntarily agree to perform the SFSTs. Mecham, who was told the tests were voluntary, declined to perform the tests. A blood test was later taken that came back well below .08. At trial, the prosecutor argued that Mecham was guilty of DUI because he had refused to perform SFSTs tests, and only someone who knew they were guilty would refuse to perform the tests. The defense strongly disagreed and argued Mecham’s refusal to submit to a voluntary test should not be used against him, particularly when he was never told that if refused the tests, that his refusal would be used against him at trial.

On appeal, the Washington Supreme Court ruled that SFSTs are not a search and therefore, a person does not have a constitutional right to refuse the test. Because a person does not have a constitutional right to refuse, that a prosecutor can use a person’s refusal to perform the tests against the person at trial as consciousness of guilt. The court added that the SFSTs are a seizure, not a search, and that law enforcement can ask a person to perform the SFSTs after a person is already arrested for DUI (SFSTs are normally used to help an officer decide whether to arrest a person for DUI).

The decision leads to a lot of questions. If the SFSTs are a seizure, and a refusal to submit to the tests can be used against a person, can an officer force someone to submit to the SFSTs against their will, just like an officer can force someone to stand in a suspect lineup against their will? If a person refuses to perform the SFSTs can they be charged with the crime of Obstructing a Law Enforcement Officer similarly to when person refuses to put their hands behind their back when instructed? While the court stated a person does not have a constitutional right to refuse, the court added a person has a common law right to refuse. So presumably, the decision to submit to the SFSTs must still be voluntary and a refusal to submit should not expose a person to an additional criminal charge of obstructing.

Police officers routinely testify that they do not arrest everyone who agrees to perform the SFSTs and occasionally, a person’s performance on the SFSTs convinces the officer to let the person drive home without a DUI arrest. However, it is hard to find statistical evidence to support this. And it is not unheard of for people to perform “poorly” on the SFSTs who end up blowing well under .08 (.02 is the lowest breath test I have seen for a DUI arrest). Prior to having a suspect perform the SFSTs, the police offer instructions and briefly demonstrate the tests. However, this normally occurs on the side of a busy, loud, freeway. Moreover, the instruction does not inform the person what “clues” the officer is looking for. For instance, on the Walk and Turn and One Leg Stand test, the officer instructs the person “to keep their arms to their side.” If a person moves their arms more than six inches from their hip, this is considered a clue (despite the fact that the person may assume having their hands a little more than six inches from their hip is keeping their arms to their side, just as instructed). This is one reason most attorneys advise people to decline to take the the SFSTs regardless of how much or little alcohol they have had to drink. But after the Mechum decision, it appears you are damned if you do, and damned if you don’t.

What crimes can be used against a witness at trial?

While generally, a prior criminal conviction or prior bad act cannot be used against a witness in trial, there are some exceptions. One is detailed in Evidence Rule (ER) 609, which allows a witness to be impeached by convictions of certain crimes. ER 609 states:

“For the purpose of attacking the credibility of a witness in a criminal or civil case, evidence that the witness has been convicted of a crime shall be admitted . . . but only if the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered, or (2) involved dishonesty or false statement, regardless of the punishment.”

Whether a crime “involved dishonesty or false statement” is not always obvious on its face. For instance, the crime of Burglary in the Second Degree can be a dishonest crime if the offender enters a building to steal something. But if the offender enters a building to commit an assault, the crime is still a felony, and still a burglary, but it is not a crime of dishonesty under ER 609.

ER 609 also lays out other requirements, including time limits, effect of a pardon, and whether juvenile convictions can be used against a witness. This rule applies to both criminal and civil trials. This means that a crime of dishonesty conviction years ago could potentially factor in a totally unrelated civil case years down the road. The crime of dishonesty could be enough to convince a jury to believe one witness over another. Before pleading guilty to any crime, make sure your attorney adequately advises you on whether the crime is a ER 609 crime of dishonesty, and how that conviction will be used in future legal proceedings.

The different types of deferrals under Washington law

The general premise of a deferral in the criminal justice system is simple; stay out of trouble for a period of time, complete whatever conditions are imposed (treatment, fines, ect.), and the charges against you get dismissed. Under Washington law, there are many forms of a deferral but the specifics of each deferral can vary greatly depending on which particular deferral is being used. The following provides a brief summary of the various deferrals that are available under Washington law:

Deferred Prosecutions
A deferred prosecution is the most intense and lengthy form of deferral under Washington law. The details of the program are specified in RCW 10.05, with the most onerous requirement being a two year chemical dependency or mental health treatment program. By statute, the person must remain crime free for a minimum period of five years before the case is dismissed. While a person can technically enter a deferred prosecution on just about any type of gross misdemeanor or misdemeanor offense, typically, people utilize the deferred prosecution on a DUI offense. The one catch is a person can only have one deferred prosecution on a DUI offense (or any RCW title 46 vehicle offense) in their entire life. So it is common for people to use their one deferred prosecution, and the two years of treatment, on a second or third DUI offense. While the deferred prosecution on a DUI offense will ultimately end in a dismissed charge if successfully completed, the Department of Licensing (DOL) still requires an ignition interlock on a person’s vehicle for a minimum of one year (or five or ten years, depending on the person’s criminal history). And even after the DUI is dismissed, it still counts as a prior DUI conviction for sentencing purposes if the person ever gets charged with another DUI. The DUI offense will also appear on the person’s driving record, for life, even after the court dismisses the charge.

Deferred Sentences
Deferred Sentences are available on any gross misdemeanor or misdemeanor offense under Washington law (except DUI and Physical Control) and are governed by RCW 3.66.067. Unlike a deferred prosecution, which has conditions set by statute that cannot be waived by the judge, the terms of a deferred sentence are left to the discretion of the judge. The only statutory requirement is that the length of the deferred sentence cannot be more than two years. A person cannot receive a deferred sentence on a charge of DUI or Physical Control, but they can if the charge is reduced (to say, a Reckless Driving or Negligent Driving). However, just as the case with deferred prosecution, DOL still treats a deferred sentence as a conviction. So it still goes on a person’s driving record and still imposes whatever driver’s license suspension would come if the sentence was suspended (not deferred). In other words, the deferred sentence is treated as a conviction in every conceivable way except that it does result in a dismissed charge.

Deferred Finding
A deferred finding is only available on infractions (like a speeding ticket). It is not available for a criminal offense. A deferred finding is governed by RCW 46.63.070(5) and allows an infraction to be deferred for a maximum of one year. A person is only allowed one deferred finding on a moving violation every seven years.

Stipulated Order of Continuance (or Pre-Trial Diversion Agreement)
A Stipulated Order of Continuance is a contract made between the defendant in a criminal case and the prosecutor. The agreement is a contract, and is not governed by statute like the deferrals above. So the terms of the contract can be negotiated by the defendant and the prosecuting attorney (including the length and treatment requirements). The judge is not a party to the contract so typically, a judge lacks the power to modify the contract. Because this form of deferral is made at the pre-trial stage of the case, before any plea or sentencing occurs, technically, the person entering this form of deferral can truthfully state they were never convicted of the offense. In Pierce and Kitsap Counties, a Stipulated Order of Continuance is referred to as a Pre-Trial Diversion Agreement. An example of this type of contract can be found here.

How to bench the judge-the affidavit of prejudice court rule

A good attorney will know all the judges in a particular jurisdiction and what judges are good for each particular kind of case and issue. But how can an attorney get a particular case set in front of the ideal judge? In Washington State, we have an affidavit of prejudice statute, RCW 4.12.050, Superior Court Criminal Rule 8.9, and CrRLJ 8.9 (for District Court). If a criminal case was a game of cards, the affidavit of prejudice rule is a playing card that says if an attorney or defendant thinks that a particular judge cannot be fair and impartial, they can play a card against that judge and a replacement judge must be brought in. But you can only play this card once. Also, there are limits as to  when you can play this card. So while you cannot pick the best judge for your particular case, you can get rid of the worst judge.

Who qualifies for a public defender?

Under the Constitution and the landmark Supreme Court case, Gideon v. Wainwright, 372 U.S. 335 (1963), anyone charged with a criminal offense has a right to an attorney, and if they cannot afford an attorney, one will be appointed to them by the court (at taxpayers expense). This is true regardless of whether the person is accused of stealing $18 million or accused of stealing a candy bar from 7 eleven.

Qualifying for a public defender. Under Washington law, to receive a public defender, you must qualify as indigent under RCW 10.101.010, which defines “indigent” as:

  • Receiving one of the following types of public assistance: Temporary assistance for needy families, aged, blind, or disabled assistance benefits, medical care services under RCW 74.09.035, pregnant women assistance benefits, poverty-related veterans’ benefits, food stamps or food stamp benefits transferred electronically, refugee resettlement benefits, medicaid, or supplemental security income; or
  • Involuntarily committed to a public mental health facility; or
  • Receiving an annual income, after taxes, of one hundred twenty-five percent or less of the current federally established poverty level; or
  • Unable to pay the anticipated cost of counsel for the matter before the court because his or her available funds are insufficient to pay any amount for the retention of counsel.

The federally established poverty level depends on the size of the household. But in 2015, for a one person household, if the person is making less than $11,770 a year it means the person is living in poverty. So in Washington State,  if a person lives by themselves and make less  than $14,713 a year, the person will get a free public defender.

However, even if the person makes more than $14,713, they may still qualify for a public defender if the person is “[u]nable to pay the anticipated cost of counsel for the matter before the court because his or her available funds are insufficient to pay any amount for the retention of counsel.” In other words, it is up to the public defense agency to decide how much an attorney would cost for that person’s particular case and whether the person can afford an attorney. If the public defense agency finds that the person is not indigent, but that the person does not make enough to afford an attorney, then the person will still qualify for the public defender. The public defender in this case is not completely free. Instead, the public defense agency will make the person sign a promissory note agreeing to make payments towards the cost of their public defender. The total fee imposed is a sliding scale based on the person’s income and the person normally has at least 12 months to pay back the costs.

What documents are reviewed to determine if the person qualifies for a public defender? In King County, the public defense agency requires the person attend a financial interview, where the screener will ask the person questions about their financial situation. The person is asked to submit pay stubs from the last three months, the most recent bank statement, a copy of last year’s income tax return, and any items that shows the person is receiving public assistance or unemployment compensation. RCW 10.101.020 also requires the person to sign an affidavit under penalty of perjury that the answers and documents provided are accurate. RCW 10.101.020 also states the appointment of counsel shall not be denied “because the person’s friends or relatives, other than a spouse who was not the victim of any offense or offenses allegedly committed by the person, have resources adequate to retain counsel, or because the person has posted or is capable of posting bond.” So even if the person has rich parents, they may still qualify for the public defender.

A public defender is only available to those facing criminal charges, involuntary commitment to a mental health facility, contempt of court for failure to pay child support, or if the State is trying to take the person’s child away from them. A public defender is not available for infractions (like speeding tickets) or the DOL Administrative Hearing on a DUI case.