Articles Posted in Criminal Law

A defendant in a Washington criminal case is entitled to a fair and impartial jury pursuant to both the state and federal constitutions.  Washington court rules allow parties to strike some prospective jurors without a stated reason through peremptory challenges.  A party may not, however, strike a prospective juror for a discriminatory reason.  U.S. Supreme Court case law has developed a framework for analyzing whether there has been improper “purposeful discrimination” in the use of a peremptory challenge.  This analysis, however, does not protect the defendant from the potential of unconscious bias in the selection of the jury.

Washington adopted a rule to address this issue.  General Rule 37 permits a party or even the court itself to object to a peremptory challenge to raise the issue of improper bias.  The party who made the challenge must then articulate their reasons for using the challenge. The court then must determine if an objective observer could see race or ethnicity as a factor, considering the totality of the circumstances.  If so, the court should deny the peremptory challenge.

A defendant recently appealed his conviction after the trial court allowed the prosecution to strike a juror over the defendant’s objection.  According to the appeals court’s opinion, the defendant was charged with first degree kidnapping and second degree assault of his long-term girlfriend, with four firearm enhancements.

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A defendant in a Washington criminal case is entitled to a self-defense jury instruction if he shows some evidence of self-defense.  The use of force by a person “about to be injured” is not unlawful if it is not greater than necessary. RCW 9A.16.020(3).  Another statute provides that a homicide is justifiable if the person has “reasonable ground to apprehend” “great personal injury.” RCW 9A.16.050.  Case law has held, however, that the “great personal injury” standard applies when the defendant used deadly force, even if no one was killed.

A defendant recently challenged his convictions for second degree assault with firearm enhancements, arguing court erroneously instructed the jury on the “about to be injured” standard instead of the “great personal injury” standard.

According to the appeals court’s opinion, the defendant lived in a mobile home park with a homeowners association. After the defendant informed the homeowner association’s president’s she could not be at another mobile home removing the previous resident’s belongings, the defendant and the association president had an altercation.

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When a Washington criminal defendant is charged with an offense with different degrees, the jury may generally find him or her guilty of any inferior degree rather than the degree charged.  RCW 10.61.003.  A defendant recently successfully challenged his first degree conviction after the court denied his request for a jury instruction for the second degree offense.

According to the appeals court’s opinion, witnesses heard gunshots and saw the defendant leave a burning trailer.  He was arrested that night.

The defendant does not speak English, so a lieutenant served as an interpreter during his interview. The defendant admitted to setting the fire and firing shots in the ground.  He said he had gone to the location to kill someone he thought was threatening him.  He said he had been to the trailer three times and it had always been empty, so he thought it was abandoned.

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Identification of the defendant as the person who committed the allegedly criminal act is an important part of a Washington criminal case.  When there is video of the incident, however, the jury may be able to make the identification without the assistance of opinion testimony from a witness.  Identification from a video constitutes opinion testimony.  A lay witness may provide opinion testimony only if it is rationally based on the witness’s own perception, helpful in understanding the testimony or determining a fact at issue, and not based on specialized knowledge.  ER 701.  Washington courts have held that witness identification of a defendant in a surveillance photograph may invade the province of the jury, but the testimony may be admissible in certain circumstances.  A lay witness may testify about the identity of a person in a surveillance photo if the witness is more likely to correctly identify them from the photo than the jury is. This may occur when the defendant has had multiple contacts with the witness and the video is unclear or the defendant’s appearance has changed since the video was taken.

A defendant recently successfully challenged a conviction after a police officer provided identification testimony.

According to the appeals court’s opinion, the defendant went into a grocery store with a woman and a child.  The woman was caught on security footage putting items in her purse, but the defendant and the child were not visible in the video at the time.  A loss prevention employee saw the woman’s actions on video surveillance.  The woman paid for some items, but not those she put in her purse.  The group left the store together.

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For a Washington criminal defendant to be convicted, both the U.S. and Washington constitutions require a unanimous jury to find the charged criminal act has been committed.  A unanimous jury can be an issue where the state charges only a single count but presents evidence of multiple criminal acts.  If the state does not choose a single act, then the jurors should be instructed that they must unanimously find the same criminal act was proved beyond a reasonable doubt in order to convict.  A defendant recently challenged his conviction on the grounds he was denied his right to a unanimous jury verdict after the trial court failed to provide a unanimity instruction.

The state charged the defendant with one count of felony harassment of “[alleged male victim] and/or [alleged female victim].”  The appeals court noted that harassing each of the alleged victims would be two distinct crimes that could have been charged as separate counts.  The jury was not given a unanimous verdict instruction.

To prove felony harassment under RCW 9A.46.020(2)(b)(ii), the state had to prove the defendant threatened the alleged victim by “threatening to kill the person threatened or any other person,” and that the threatened person reasonably feared the threat would be carried out.  The Washington Supreme Court has held that the “person threatened” is the person who is the target of the coercion or intimidation.  A person may be threatened by a threat against another person.  To prove felony harassment, the state must show that the threatened person had a reasonable fear the threat would be carried out.

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Washington drug cases often turn on the legality of the search that found the evidence.  Both the federal and Washington state constitutions provide protection from unreasonable searches and seizures.  Generally, searches must be conducted under a lawful warrant, unless an exception applies.  A man recently successfully challenged his conviction on the grounds the trial court erred in applying the Terry and community care taking exceptions to the search that found the evidence used against him.

A Starbucks employee called 911 for assistance removing a sleeping person from the store.  According to the court’s opinion, the officer tried to wake the defendant, but he was unresponsive.  The officer started to suspect the defendant was under the influence of drugs.  He noticed a metal utensil partially sticking out of the defendant’s pocket.  He was concerned it was a knife, needle, or other sharp object.  He took it out of the defendant’s pocket and found it was a cook spoon with a dark brown residue and burn marks.  The officer determined he had probable cause for an arrest and kept searching, finding drugs and other drug paraphernalia.

The officer then performed a “hard sternum rub” to wake the defendant.  He told the defendant he was under arrest, handcuffed him, and took him to an aid car.

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Washington criminal case law has established that defendants are entitled to be free of shackles at trial, unless there are extraordinary circumstances.  Restraints may affect a number of constitutional rights, including the presumption of innocence, the right to testify, and the right to consult with counsel.  Trial courts do, however, have discretion in deciding on courtroom security measures, including restraints, as long as they base that discretion on facts in the record.

In a recent case, a defendant challenged his conviction after he was shackled in pretrial appearances and required to wear a leg brace at his jury trial.  At his first court appearance, the defendant was shackled in handcuffs and a belly chain.  His attorney moved for removal of the shackles, arguing they violated the defendant’s due process rights under the Fifth Amendment and the Washington State Constitution.

The trial court held a consolidated hearing on all motions related to restraint and removal before it.  The court granted the motions “to the extent the court agrees there are less restrictive means of furthering the compelling government interest of courtroom security.”  The court proposed videoconferencing as an alternative, but acknowledged it would not be implemented for over a year.  The court indicated its adoption of the sheriff’s policies would remain in effect until videoconferencing was implemented.  The policy required leg braces at trials.

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