Washington Appeals Court Finds Exclusion Appropriate Remedy for State’s Failure to Disclose Witness

In Washington criminal cases, the prosecution must disclose upon written demand the names and addresses of the people it “intends to call as witnesses . . .” and any expert witnesses it intends to call at trial, if that information is within its knowledge, possession, or control.  The Washington Court of Appeals recently considered whether it was permissible for the State to wait until the day of trial to name the actual witness in State v. Salgado-Mendoza.

After being arrested for DUI, the defendant voluntarily submitted to two breath tests.  Several months before his scheduled trial date, he requested that the State disclose information about its expert witnesses.  The State filed a witness list in December 2012, naming nine toxicologists, one of whom would testify.

The defendant filed a supplementary discovery demand about two weeks before trial, seeking the names of all the expert witnesses the state intended to call.  Three days before trial, he moved for the dismissal or exclusion of the toxicologist’s evidence.  He argued the State had committed governmental misconduct by failing to disclose who would testify, despite multiple requests.

On the day before trial, the State provided a list of three potential toxicology witnesses to the defense.  On the next day, the defendant asked the court to dismiss the charge or exclude the toxicologist’s testimony because the State had still not disclosed the name of the testifying witness.

The State identified the witness on the day of trial.  It argued it had done its due diligence, but the lab could not provide the information earlier because the lab was overworked and understaffed.  It also argued the defendant had time to prepare, based on the list of nine potential witnesses.  Additionally, it argued that it was not required to call every witness on its list and that it provided the witness’ name as soon as the information was available.

The trial court denied the defendant’s motion, finding the toxicologists were “fungible” witnesses, and preparing for nine potential witnesses was not unduly burdensome or prejudicial.  The defendant’s attorney stated he would ordinarily seek a continuance, but he did not want to waive the right to a speedy trial or try to reschedule the defense’s expert witness.

The toxicologist testified, and the jury found the defendant guilty.  The defendant appealed.  The Superior Court reversed the conviction and remanded for a new trial, finding the district court had abused its discretion.  The Superior Court found the failure to disclose the name of the witness who would testify was not justified by the lab’s busy schedule and workload.  The Superior Court also found the exclusion of the evidence was sufficient to eliminate any prejudice, so dismissal was not appropriate.

The Appeals Court granted the State’s motion for discretionary review to consider whether the toxicologist witnesses were within the prosecution’s control and whether the toxicologist’s testimony should have been excluded.

On review, the State argued it did not have knowledge, possession, or control of the information and was therefore not required to disclose it before the day of trial.  CrRLJ 4.7(a)(1) requires the prosecutor to disclose, upon written demand, the names and addresses of its intended witnesses, if that information is within the control or possession of the prosecutor.  The Appeals Court found that even if the prosecutor did not know the name of the testifying witness or have control over the lab, the State had a duty to obtain that information.  CrRLJ 4.7(d) requires the prosecution to try to make material in someone else’s knowledge, possession, or control available upon request by the defendant if it would be discoverable if the prosecutor had it.  If the prosecution is unsuccessful in making the information and material available, the court shall issue appropriate subpoenas or orders to do so.  The trial court should have been notified that the prosecutor was unable to obtain the requested information.

Here, the State had not made reasonable efforts to obtain the information in a timely manner.  The State did not seek the trial court’s assistance in obtaining the information.  The Appeals Court found that this failure was not reasonable and defeated the purpose of the discovery rules.  The trial court erred in denying the defendant’s motion to exclude the toxicologist’s testimony.

In the event of governmental misconduct, the court may dismiss the case after considering lesser remedial actions.  The court considered the factors analyzed when there is a discovery violation.  The defense was denied the opportunity to fully investigate the witness, and their opportunity to identify any biases or credibility issues was compromised.  Although a continuance might have given the defendant time to prepare, it would have required him to waive his right to a speedy trial and would open up the possibility that the lab would again fail to timely disclose the name of the witness.  The Appeals Court also found that excluding the witness would not have been fatal to the State’s case because it had other evidence.  There was no evidence the State acted in bad faith.

The Appeals Court found that the factors did not support dismissal, but suppression was a reasonable alternative that could have protected the defendant’s rights.  The Appeals Court affirmed the Superior Court’s decision reversing the conviction and remanding for a new trial.  The Appeals Court instructed the state to provide the name and address of the witness it intended to call at trial or to comply with CrRLJ 4.7(d) on remand.

The holding in this case is beneficial to all criminal defendants. The courts here acknowledged that there may be an ongoing issue with the toxicology lab providing names of witnesses.  By excluding witnesses whose information was not timely disclosed, the courts discouraged the lab and prosecutors from waiting until the day of trial to provide the names of witnesses.

The Seattle DUI attorneys at Blair & Kim, PLLC aggressively defend our clients’ rights.  If you are facing criminal DUI charges, call us at (206) 622-6562 or contact us through our website to schedule a consultation.

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