Monday, February 13, 2012

Pro Se Defendants Questioning Victims

One day in 2010, a woman who was to be questioned by the man who had abused her through her childhood did not return to the courtroom after a recess. Instead she kept climbing the courthouse stairs until she emerged on the roof, pondering whether to jump. Q13 broadcast an interview with her on Feb. 8. The next night, the station reported on a proposed court rule amendment designed to protect victims from abusive questioning by defendants representing themselves pro se.

The proposal would amend CrR 3.1 - Right to and Assignment of Lawyer by adding a new subsection:

(g) Pro Se Defendants  
(1) When a defendant has waived his or her right to counsel, the court, on a motion by the prosecuting attorney, on its own initiative, or at the request of a witness, and for good cause shown, may restrict the manner and means by which a defendant questions a witness.  
(2) Good cause is shown when the court finds by substantial evidence, in a hearing conducted outside the presence of the jury, that requiring the witness to be questioned by the defendant without restriction will cause that individual to suffer serious emotional or mental distress that will prevent the witness from reasonably communicating at the trial.  
(3) The court shall state on the record the basis for good cause.  
(4) When the court does not permit the pro se defendant to question a witness without restriction, the court may impose reasonable procedures including but not limited to:    
(i) requiring questioning by the defendant of the witness using remote audio-visual means when authorized by law;   
(ii) allowing stand-by counsel to question the witness with the agreement of the defendant,.  
Nothing herein precludes a court from using other means to control the courtroom including but not limited to prohibiting the defendant from approaching the witness during questioning and requiring the defendant to remain seated during questioning of the witness.
The Q13 story emphasized the clause in (4)(ii) that would have stand-by counsel question the witness, but only "with the agreement of the defendant."

One person who has commented on the proposal was on the jury in the case featured by Q13; her letter outlines ways the defendant's questioning was abusive of his victims.

The letter from the Washington Association of Prosecuting Attorneys generally favors the amendment, with alternative language.

The Washington State Bar Association's letter opposes the change. Stephen R. Crossland, WSBA's president, argues that at best the change is unnecessary, because trial judges "already have the ability to control questioning of a witness by a pro se defendant, subject to constitutional limitations in light of the facts and circumstances of each case." At worst, he says, the rule – which does not mention constitutional protections – might lead judges to disregard them.

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