Washington Supreme Court Rules on State Delay in Disclosing Toxicology Witness

Washington DUI defense attorneys often have to fight vigorously to ensure they get information from the State.  In DUI cases, the State sometimes fails to name the toxicologist who will testify until very close to the trial.  In one particularly egregious case, the prosecution provided a list of potential witnesses and waited until the morning of the trial to identify the actual witness.  We discussed this case following the Court of Appeals decision, and the Washington Supreme Court has recently reviewed it.

The defendant was charged with driving under the influence.  Five months before the trial, the State disclosed a list of nine toxicologists, indicating one of them would testify.  Two weeks before trial, the defendant filed a supplemental discovery request, seeking identification of the testifying witness.  Three days before trial, the defendant moved to dismiss or suppress the testimony.  On the day before the trial, the State narrowed the list to three names.  It finally identified which toxicologist would testify on the morning of the trial.

The defendant moved to suppress the testimony based on the late disclosure.  The trial court denied the motion, finding no actual prejudice to the defense.  The court also noted that the practice of providing a list rather than disclosing a specific name was caused by underfunding of crime labs rather than mismanagement.

The superior court, and subsequently the Court of Appeals, found the trial court abused its discretion.  The Washington Supreme Court granted review.

The Court reviewed the motion to dismiss under a deferential abuse of discretion standard.  An abuse of discretion exists if the court’s order is based on untenable grounds or is manifestly unreasonable.

CrRLJ 8.3(b) allows a court to dismiss a criminal case based on governmental misconduct.  The defendant must show both misconduct and actual prejudice.  The Court found misconduct on the part of the State, noting that misconduct through a discovery violation does not have to be willful.

CrRLJ 4.7(a)(1) requires the State to disclose the names and addresses of its intended witnesses, as well as the written or recorded statements and the substance of any oral statements of those witnesses.  The rule further requires prosecutors to disclose any expert witness they intend to call, along with the subject of the testimony, and any related reports that the expert has submitted to the prosecuting attorney.  The obligation to disclose is limited to information in the prosecutor’s possession and control, but the prosecutor also has an obligation to obtain the disclosure of discoverable information in someone else’s possession.

The Court found that the State’s failure to narrow the list of potential toxicology witnesses showed mismanagement and therefore misconduct.

The Court did not, however, find prejudice.   To meet the burden, the defendant would have to show actual prejudice. The governmental misconduct must have materially affected his right to a fair trial.  Actual prejudice may occur if the late disclosure forces him to choose between the right to a speedy trial and the right to have counsel who is adequately prepared.  The Court found the defendant had not adequately articulated how the misconduct materially prejudiced his defense.

The Court found that the list of nine witnesses, along with discovery about their anticipated testimony and professional backgrounds, was provided with sufficient time to allow the defense to prepare.  The Court further noted that the substantive testimony would likely be similar, regardless of which toxicologist testified.

The Court pointed out that delayed disclosure could constitute actual prejudice, but it had not done so here.   Defense counsel argued that preparing to examine the potential witnesses would have resulted in wasted hours, but he had not argued that he had in fact wasted them.  The Court found this argument confused risk of prejudice with actual prejudice.

The defendant also argued that the delay impaired his cross-examination.  The trial court had asked defense counsel if he needed to research anything specific before the testimony.  The defense attorney noted the difficulty in predicting how the delay would affect a cross-examination that had not happened.  Defense counsel, however, did not assert that he was not prepared for the cross-examination or request a continuance.  The Court found no actual prejudice.

The Court reiterated that a delayed disclosure could result in actual prejudice, but it suggested such a finding would be more likely for a witness providing unique testimony than for toxicologists, for whom many of the questions could be the same regardless of which one actually testified.

The Court also pointed out that prejudice was not limited to the results of a delayed disclosure.  The initial error here was over-disclosure, in naming more witnesses than the State intended to call.  The trial court found that the added work resulting from this long list was not “extraordinary” because the defense had a sufficient amount of time to prepare.  Defense counsel’s extensive experience was also cited.

The Court found that the trial court was in the best position to make the determination.  The trial court considered the mitigating factors and found that suppression of the testimony was not warranted.  The Court found the trial court’s decision was not manifestly unreasonable, and therefore it was not an abuse of discretion.

Although the majority found in favor of the State, this case was very close.  Four justices signed the dissent.  The dissenting justices disagreed with the majority and would have found actual prejudice.

The results of this case were unfavorable for the defendant, but these results were specific to the facts of this case.  The Court reviewed the decision under an abuse of discretion standard, and it noted that a different trial court may have reached a different conclusion.  Thus, this case does not mean that testimony cannot be excluded due to a delay in disclosure if the trial court finds the defendant has suffered actual prejudice.

If you are facing DUI charges, you need an experienced Washington DUI defense attorney to help you defend your rights.  Contact Blair & Kim, PLLC by phone at (206) 622-6562 or through our website to discuss your case.

More Blog Posts:

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

Washington Appeals Court Finds No Prosecutorial Misconduct in Vehicular Assault Case


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