WSR 16-09-028

RULES OF COURT

[April 12, 2016]

The Office of Public Defense, having recommended the proposed amendment to RAP 9.2(b)—Verbatim Report of Proceedings, and the Court having approved the proposed amendments for publication;

Now, therefore, it is hereby

(a) That pursuant to the provisions of GR 9(g), the proposed amendments as shown below are to be expeditiously published for comment in the Washington Reports, Washington Register, Washington State Bar Association, and Administrative Office of the Court's websites expeditiously.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than June 30, 2016. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 12th day of April, 2016.

A. Proponent: Washington State Office of Public Defense

B. Spokespersons: Gideon Newmark, Appellate Program Manager, Washington State Office of Public Defense, PO Box 40957, Olympia, WA 98504-0957, (360) 584-5636, gideon.newmark@opd.wa.gov

C. Purpose: To update RAP 9.2(b) to give appellate indigent defense attorneys discretion whether to order transcription of voir dire and opening statements.

The circumstances supporting RAP 9.2(b)'s restrictions on transcribing voir dire and opening statements have changed. RAP 9.2(b) was amended in 1993 to reduce the costs of transcription in indigent cases. It did so by requiring trial court authorization for transcription of voir dire and opening statements on appeal. At the time, there was a consensus among Court of Appeals judges that transcripts of voir dire and opening statements were generally not necessary. More recently, however, there has been a tremendous amount of appellate litigation concerning the right to a public trial during voir dire. While the need for transcripts of voir dire may have been rare in 1993, this is no longer the case. Recent litigation concerning prosecutorial misconduct suggests a greater need for transcripts of opening statements, as well.

Moreover, the financial concerns that underlay the 1993 amendment to RAP 9.2(b) are no longer applicable. Since fiscal year 2015, appellate attorneys have greatly increased the frequency with which they order voir dire and opening statements. But court reporter expenses for the Office of Public Defense have not significantly increased in recent years. This suggests that the proposed amendment will not have substantial fiscal consequences.

Furthermore, trial courts as a practical matter have little discretion whether to authorize transcription of requested parts of trial. Indigent clients have a constitutional right to a complete appellate record. Mayer v. City of Chicago, 404 U.S. 489, 193 (1971). Pursuant to this right, clients are entitled to transcription of voir dire or opening statements even if they cannot make a particularized factual showing of need. See State v. Harvey, 172 Wn.2d 919, 921–22 (2012). Even if the only purpose for a transcript is to allow a client to address it in a pro se statement of additional grounds, the transcript must be provided. Id. at 922. As such, there are few foreseeable circumstances under which a request for voir dire or opening statements could be denied, making such requests into virtual formalities.

These formalities, however, have a cost. To obtain permission for transcripts of voir dire or opening statements, appellate attorneys must expend time that would be better spent on more productive aspects of representation, such as client communication, research, and writing. The proposed amendment would help attorneys make maximal use of their time and remove a small but persistent barrier to effective representation.

This is not to suggest that voir dire and opening statements should be ordered in every case. Attorneys must exercise their professional discretion in good faith, and should not order these sections of trial without reason to believe they are relevant to the appeal. Consequently, the proposed rule change includes the proviso that voir dire and opening statements should not be ordered without reasonable justification.

D. Hearing: A hearing is not requested.

E. Expedited Consideration: Expedited consideration is not requested.

F. Supporting material: Suggested rule amendment.

RAP 9.2

VERBATIM REPORT OF PROCEEDINGS

...

(b) Content. A party should arrange for the transcription of all those portions of the verbatim report of proceedings necessary to present the issues raised on review. A verbatim report of proceedings provided at public expense will should not include the voir dire examination or opening statements unless appellate counsel has reason to believe those sections are relevant to the appeal or they are requested by the client for preparing a Statement of Additional Grounds so ordered by the trial court. If the party seeking review intends to urge that a verdict or finding of fact is not supported by the evidence, the party should include in the record all evidence relevant to the disputed verdict or finding. If the party seeking review intends to urge that the court erred in giving or failing to give an instruction, the party should include in the record all of the instructions given, the relevant instructions proposed, the party's objections to the instructions given, and the court's ruling on the objections.

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