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Washington Prosecutor Does Not Have to Stipulate No-Contact Order

In a Washington felony violation of a no-contact order case, the prosecution must prove the existence of the no-contact order and the defendant’s knowledge of it.  For a variety of reasons, the defense may not want the jury to see the no-contact order.  A recent issue in Washington has been whether a defendant can keep a no-contact order out of evidence by stipulating to its existence and his or her knowledge of it.  The Washington Supreme Court recently addressed this issue.

A court entered a domestic violence no-contact order prohibiting the defendant from contacting his girlfriend after he was convicted of a domestic violence offense.  Finding the defendant was a “credible threat to [her] physical safety,” the court ordered the defendant not to come within 1000 feet of her residence.

Nevertheless, the couple lived together.  According to the Washington Supreme Court’s opinion, a neighbor witnessed them having a verbal altercation outside their home.  The girlfriend told the neighbor the defendant had hit her and asked them to call 911.  The girlfriend told law enforcement the defendant struck her head and face repeatedly and law enforcement observed bruising and other injuries.

The defendant was charged with felony violation of a no-contact order.  He agreed to stipulate to the existence and his knowledge of the no-contact order. He argued the no-contact order should be excluded from evidence because he had offered to stipulate.  The state refused to join in the stipulation.

The trial court found the defendant could not force the state to accept the stipulation.  The trial court distinguished the situation before it from the situation in the Old Chief case and admitted the no-contact order.

The defendant appealed.  The Court of Appeals reversed, finding the trial court abused its discretion by rejecting the stipulation and admitting the order. The appeals court found the no-contact order was relevant only to prove the legal status of the defendant and determined the Old Chief rule applied.  The appeals court also found the risk of unfair prejudice substantially outweighed the probative value of the order.  The appeals court also found the order itself did not have any probative value other than what was provided through the stipulation.

The Washington Supreme Court granted the state’s petition for review.  The state argued the no-contact order proves more than just the defendant’s legal status.

The rules of evidence allow relevant evidence to be excluded if the risk of unfair prejudice substantially outweighs it probative value.  ER 403.  Generally, the state does not have to accept an offer of stipulation of an element of the crime.  However, the state does have to accept an offer of stipulation if unfair prejudice substantially outweighs the relevance of the evidence.

In Old Chief, the defendant offered to stipulate he had been convicted of a felony that would result in the prohibition of possession of a firearm.  He argued his offer of stipulation made the evidence of the underlying felony inadmissible under Rule 403 because the risk of unfair prejudice substantially outweighed the probative value.  The prosecution refused to stipulate, and the court admitted the prior judgment.  The U.S. Supreme Court reversed, finding the trial court abused its discretion in rejecting the offer to stipulate to the existence of a prior felony conviction to prove the defendant’s status as a felon.  The U.S. Supreme Court found the risk of unfair prejudice substantially outweighed the probative value.  The prosecution only had to show the defendant had a qualifying felony conviction, and the stipulation accomplished that.

The Washington Supreme Court found, however, that this rule did not apply to domestic violence no-contact orders in prosecutions for felony violation of a no contact order.  The Washington Supreme Court noted that in a case relying on a prior felony conviction, the prior conviction generally involves actions unrelated to the new offense. In a violation of a no-contact order case, the defendant is being charged with violating the no-contact order.  The state must prove the defendant violated a provision of that order, so the order itself has probative value beyond a stipulation to its existence.

The Washington Supreme Court also noted that Old Chief held the prosecution does not have the right to present the evidence of its choosing when the issue is just the defendant’s status.  However, a no-contact order has probative value in addition to the defendant’s legal status.  The order also shows its effective and expiration dates and the specific restrictions it imposes.  It includes evidence of the elements of a felony violation of a no-contact order.

In this case, the state had to prove the order restricted the defendant, that he knew about it, that he violated it, and that he committed assault.  The offered stipulation did not include everything in the no-contact order that could be relevant to the case. The Washington Supreme Court found Old Chief did not apply.

The defendant argued the order was prejudicial because the term “Post Conviction” indicated a prior domestic violence conviction.  The Washington Supreme Court rejected this argument because it was not preserved with an objection.  It noted, however, that the trial court could redact parts of the order that created risk of unfair prejudice.

The Washington Supreme Court found the probative value of the no-contact order outweighed the risk of unfair prejudice. It showed the restrictions placed on the defendant, was related to the charges, and contained evidence of some of the elements of the offense.  The order did not provide details of the prior offense. The Washington Supreme Court found the order did not create a risk of unfair prejudice and reversed and remanded the case to the appeals court.

If you are fighting a no-contact order or have been charged with violating a no-contact order, contact an experienced civil protection order attorney.  Call Blair & Kim, PLLC, at (206) 622-6562 to schedule a consultation.

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