Public records
Division I:
Prosecutorial error – A prosecutor commits misconduct during voir dire by eliciting details about potential jurors’ experiences with sexual abuse in front of other potential jurors instead of focusing on whether they can be impartial. The fact that the prosecutor asked fewer follow-up questions to the juror who answered questions in private suggested the prosecutor’s voir dire strategy was to taint the other jurors with bias against the defendant. Here the error did not require reversal. State v. Coleman, Jr., No. 86629-0-I (Aug. 18, 2025, unpublished).
Division II:
Right to proceed pro se – A trial court abuses its discretion when it denies a defendant’s motion to proceed pro se if the defendant’s decision is unequivocal, knowing and voluntary, the defendant is mentally competent, and the defendant has not abandoned his request. The error in denying the defendant’s motion required reversal. State v. Chhim, No. 59710-1-II (Aug. 19, 2025).
Extrinsic evidence in the jury room – When the jury is improperly exposed to extrinsic evidence in the jury room, the trial court must ask whether the evidence objectively could have affected the jury’s verdict. If so, the defendant is entitled to a new trial under CrR 7.5(a)(1). State v. Chhim, No. 59710-1-II (Aug. 19, 2025).
Division III:
Search warrants – A search warrant authorizing the seizure of “Any data that may be kept on any of the seized digital devices in any format to include but not limited to intact files, deleted files, deleted file fragments or remnants related to the purchase, possession, receipt and distribution of controlled substances and or stolen property.” Is overbroad because it allows the seizure of evidence related to crimes for which there is no probable cause, in this case sex crimes. State v. Hampton, No. 39943-5-III (Aug. 19, 2025).
Public records – Legal advice in a legal memo that counsel sent to the county planning director was attorney client privileged. The county did not waive the privilege by reproducing a checklist from the memo, briefly mentioning the checklist at a public meeting, using the checklist to determine whether water was legally available for land use permitting, or by providing the requester a redacted version of the checklist in an attempt to comply with the PRA. A record need not be prepared in anticipation of litigation, or be relevant to a controversy, to be attorney client privileged. Methow Valley Citizens Council v. Okanogan County, No. 40747-1-III (Aug. 19, 2025, unpublished).
Foreign case of interest:
Selective enforcement – Evidence of historical racial segregation and “overpolicing” of Black people; and disproportional stops of African American drivers vis-à-vis the overall population, was insufficient to prove the police had a discriminatory motive to stop a Black driver who had the same falsified temporary license plate as several other drivers spotted that night. First, historical evidence prior to 1990 is irrelevant to a stop conducted in 2020. Second, statistical disparities generally cannot show that any one decision was motivated by racial animus unless race can be isolated from other confounding variables such as poverty, residence in a high-crime area of town, and existing arrest warrants. Also, the comparison of drivers stopped was compared to the general population, not the racial makeup of drivers. United States v. Moore, No. 24-4201 (4th Cir. Aug. 1, 2025).
(Editor’s note: Although the egregious nature of the defendant’s behavior which led to his arrest, makes the statistics less important to the final outcome, this case is included for the cogent, well-reasoned discussion of the proper use of statistics in selective enforcement claims and the roundup of the relevant case law.)
Washington Supreme Court:
Public records – Plaintiff sex offenders seeking to enjoin county from releasing their records to a public records requester cannot use pseudonyms, or seal the records, unless GR 15 and the Ishikawa factors are satisfied. Here, GR 15 and the Ishikawa factors were not satisfied because plaintiffs’ identities as sex offenders (including those adjudicated as juveniles) was already public information. Although SSODA evaluations are exempt from the PRA, plaintiffs’ identities appear in publicly available lists of sex offenders, which the requester compiled using public records. Therefore, plaintiffs did not have a legitimate privacy interest. Does v. Thurston County, No. 102976-4 (June 12, 2025).
Division III:
Booking questions – Answers to booking questions, asked after an invocation of the right to remain silent, are inadmissible if the officer who asked the question was aware that the response might be probative of the Defendant’s guilt. State v. Butler, No. 40152-9-III (June 10, 2025).
Foreign case of interest:
Miranda – A suspect who voluntarily sits in the passenger seat of an unlocked, unmarked police vehicle parked at his home and submits to questioning by two armed, (mostly) plainclothes officers for 41 minutes was not in such a “police-dominated” atmosphere to be “custodial and require Miranda warnings, even though he was never told he was free to go or whether he was under arrest for not. United States v. Nahkai, No. 24-4058 (10th Cir. June 3, 2025).
(Editor’s note: It would have been best practice to advise the suspect that the door was unlocked and he was free to leave.)
Division II:
Premeditation – WPIC 26.01.01, which states, “[t]he law requires some time, however long or short, in which a design to kill is deliberately formed,” does not misstate RCW 9A.32.020(1), which states premeditation must be of, “more than a moment in point of time.” Nor is it a comment on the evidence. State v. Hribar, No. 58982-6-II (June 3, 2025).
Felony firearm registration – The felony firearm offender registration statute, RCW 9.41.330, does not authorize a registration requirement for unarmed accomplices. State v. Couch, No. 58122-1-II (June 3, 2025).
Competency restoration – RCW 10.77.068(9) creates a statutory bar to an award of sanctions for the failure to meet deadlines for admission to the state hospital for competency restoration. State v. Lockhart, No. 59738-1-II (June 3, 2025).
(Editor’s note: The Court of Appeals’ decision is based on the trial court’s use of the pattern form, which indicated that the Order was rooted solely in the statute. Therefore, the statute barred a remedy of sanctions. Prosecutors should anticipate defense efforts to modify the pattern forms.)
Dismissal – A District Court abuses its discretion by denying the State’s Motion to dismiss pursuant to CrRLJ 8.3(a) (allowing the defendant to change his plea to guilty) when the State has refiled the case as a felony in Superior Court. State v. Taylor, No. 59042-5-II (May 20, 2025, unpublished).
Division III:
Public records – The court applied the “definitive response test” from Cousins v. State, 546 P.3d 415 (Wash. 2024) retroactively, even though Cousins did not “…impose a retroactive standard of strict compliance” as “such an approach would be entirely inconsistent with the balanced, functional approach taken by our precedent….” Cousins at 433. In this case, the county’s closing letter did not trigger the statute of limitations because the letter did not say the 1-year SOL had started to run, and did not say the requester may ask follow-up questions for a reasonable time. Here, the requester was entitled to attorney’s fees because he prevailed on the appeal of the summary judgment motion. Hood v. Stevens County, No. 39811-1-III (Jun. 3, 2025, unpublished).
Washington Supreme Court:
Sanctions – An “individualized justice model,” where sanctions are meted out based on the justice’s feelings, beliefs and policy preferences, results in inconsistent and unpredictable sanctions, which undermines fairness and efficacy in attorney discipline proceedings. The well-established three-stage sanctions analysis is less subjective and therefore more consistent and fundamentally fair. In re Disciplinary Proceeding Against Wallstrom, No. 202188-3 (April 3, 2025).
Division II:
Public records – The names and addresses of individuals who apply for the exemption from the WA Cares Fund are exempt from disclosure under RCW 50B.04.170(1) because the information is used in assessing premiums and determining eligibility for benefits. The agency did not silently withhold records by creating a new record containing the requested information. Pilloud v. Employment Security Department, No. 59149-9-II (April 1, 2025).
Professionalism – It is not ineffective assistance for a defense attorney to refer to the prosecutor as “my colleague” during a jury trial. That argument is frivolous. An adversarial proceeding need not be contentious. It is a testament to the professionalism of both counsel that the trial was not a screaming match between angry combatants. State v. Hall, No. 57762-3-II (April 1, 2025, unpublished).
Washington Supreme Court:
Search & seizure – Ferrier warnings are not required when an officer is simply investigating a complaint and not searching for evidence, regardless of whether the officer describes the encounter as a “knock and talk.” State v. Mercedes, No. 102622-6 (March 3, 2025).
(Editor’s note: In this case, an animal control officer requested to see the defendant’s livestock after receiving complaints from a neighboring ranch that the horses were emaciated. The majority holds that no Ferrier warnings were required due to the nature of the contact. One concurrence argues that this result is not dependent on the location of the contact, e.g. around, but not in, the house. A second concurrence would have decided the case on the location of the contact, which was the issue briefed by the parties.)
Elections – The voter signature verification statute, RCW 29A.40.110(3), is not facially unconstitutional under the WA constitution, at least not when coupled with the increasingly expansive cure system that Auditor’s offices use. Washington’s signature verification law does not facially violate the freedom of elections clause, the privileges and immunities clause, or the due process clause of our state constitution. Nothing in the opinion should be read to foreclose an as-applied challenge to the way signature verification has been used in specific instances or places. Vet Voice v. Hobbs, No. 102569-6 (March 6, 2025).
Division I:
Prosecutorial error – The term “beef” (as in a dispute) does not have a clear racial connotation to an objective observer, absent additional context. State v. Bellerouche, No. 84887-9-I (March 3, 2025).
(Editor’s note: There is a lengthy dissent.)
Prosecutorial error – The State does not burden-shift by arguing in rebuttal that the defendant must be the “unluckiest man in the world” to be accused of sexual assault on four different occasions, by four different women, when the defense questioned the truthfulness and memory of the accusers. Such an argument is simply an appeal to the jury’s common sense, or to the (rough) laws of probability. State v. Shakir, No. 84717-1-I (March 3, 2025, unpublished).
Division II:
Motions to dismiss – When the State moves to dismiss a case without prejudice pursuant to CrR 8.3(a), the trial court lacks authority to dismiss with prejudice, absent some finding that would warrant dismissal pursuant to CrR 8.3(b). State v. W.H., No. 59094-8-II (March 4, 2025).
Public records – An agency’s failure to search email accounts for responsive records, when there is some evidence that related emails existed, creates at least a genuine issue of material fact as to whether the City failed to conduct an adequate search that was reasonably calculated to uncover all relevant documents responsive to a request for: “all records the Downtown Redevelopment Authority got from the auditor… [r]egarding the most recent state audit.” Hood v. City Of Vancouver, No. 59242-8-II (Mar. 4, 2025).
Foreign case of interest:
Best evidence rule – Admitting testimony about text messages without admitting the original text messages does not violate the best evidence rule where testimony established that the receiving cell phone was lost, the sending phone could not be accessed, and there was no evidence that the State destroyed the text messages in bad faith. Tucker v. State, No. S25A0070 (Ga. Feb. 18, 2025).
(Editor’s note: The Georgia Supreme Court applied Georgia’s Best Evidence Rule which contains the same exception for lost or destroyed writings as Washington State’s Best Evidence Rule. ER 1002, ER 1004(a).)