Seattle Criminal Defense Attorney
Criminal Case Approach

The criminal law is a living organism which evolves, grows, changes, and regenerates. As such, the imagination, intellect, and diligence of the defense attorney, in significant part, set limits on what criminal law could be, might be or should be.

Criminal law involves freedom to make choices and liberty to implement those choices. Defense lawyers are the sentinels of freedom and liberty. Defense lawyers therefore protect rights for accused and non-accused persons by challenging, testing, and modifying the criminal justice system so that legal authority does not become arbitrary and capricious.

This firm undertakes the following considerations as each "critical" stage of the proceedings unfolds:

A PRE-ARRAIGNMENT

1 Detention

Upon your arrest, the court will make a determination of probable cause and enter an order establishing conditions of release. The court may either release you on your personal recognizance (PR) or set a "reasonable" bail. Frequently, however, the bail amount will be far more than you can raise. Thus, in many drug cases you will remain in jail pending trial. These determinations and orders should occur at the same hearing, called a "preliminary appearance," commonly known as a "prelim."

The "prelim" is held on the next judicial day following arrest. If you are arrested on a Friday or during the weekend, particularly one incorporating a legal holiday, and remain in custody, the issues of probable cause and bail must be resolved in a hearing before a judge within 48 hours of arrest.

• Did you have an opportunity to post bail when arrested?
• If you are in custody, were you afforded a bail hearing within 48 hours?
• Did the court properly consider your release on personal recognizance?
• Was the bail amount "reasonable" based upon the circumstances of the crime?
• Were the conditions of release the least restrictive means to assure your presence at later hearings?
• Have you been detained more than 72 hours prior to the filing of criminal charges?
• Are you out of custody? In some counties, counsel can arrange for a telephonic personal recognizance (PR) interview with the appropriate court personnel prior to arraignment for an out-of-custody defendant.

2 Probable Cause Determination Hearing or Preliminary Appearance

At the prosecutor's request, the court may consider the probable cause affidavit or testimony from an officer or other witness in determining whether there is probable cause to detain you. The probable cause determination can be made in conjunction with the filing of a felony charge, or with the prosecutor's request to subject you to continued custody or conditions of release for a period of 72 hours before the filing of charges, if any. The mechanism for continued custody prior to charging is called a "72-hour hold."

• Are all the elements of the crime charged supported by facts alleged in the affidavit of probable cause?

3 Right to Counsel

The right to counsel at all critical stages of the proceedings is guaranteed under the Fifth and Sixth Amendments to the United States Constitution, and Article I, Section 22 of the Washington Constitution. Counsel is usually appointed by the court at your preliminary appearance if you are found indigent. Otherwise, retain the services of an attorney as soon as possible.

4 Commencement of the Right to Counsel

• When does the right to counsel attach?
• Were you advised of your right to counsel by the police? By the court?
• Were you provided counsel at every critical stage?
• Were you provided counsel immediately upon your request?

5 Confidentiality

• Are the areas in which the lawyer discusses the case with you such that your communications can be kept confidential?
• If you request an attorney's presence upon your arrest and you are summoned to the jail or a detective's office, can your discussions be overheard?

6 Conflict of Interest

Has a conflict of interest arisen during the course of representation by:

• An inability for counsel and you to work together on the case?
• Your cooperation with law enforcement which creates a conflict that did not exist before?
• Facts which became known or witnesses that were disclosed through the discovery process or after the initial proceedings?

7 Information

CrR 2.1 contains the requirements for content of the information, and discusses the bill of particulars, amendment of the information, and the effect of surplusage in the information. CrR 4.3 sets forth the rules on joinder of offenses, and the consequences of failure to join related offenses in the charging document.

• Do you have any questions about why you are being charged, what elements the State must prove to convict you, or the facts stated in support of the charge?
• Has there been any pre-accusatorial delay which has been detrimental to your preparation of a defense and has affected a substantial right?

8 Essential Elements of the Information

Does the information:

• Inform you of the nature of the charge(s) against you?
• Specify the time and location of the alleged crime?
• Contain all elements of the offense, both statutory and nonstatutory?
• Cite to the specific statute(s) violated?
• Indicate whether you are charged as an accomplice or as a principal?
• Include an special allegations, for instance, deadly weapon or school zone enhancement?
• Has the Stated filed all related offenses arising out of the same criminal conduct as soon as there was probable cause to support the charge?
• Have all the elements of the crime been completed?

9 Amendment of the Information

The court may permit amendment of the information at any time before verdict or finding if your substantial rights are not prejudiced. Substantial rights are not deemed to be prejudiced if the amended information charges a lesser included crime or lesser degree of the same crime. If you fail to request a copy of the amended information, you waive the right to be provided one.

• If the information was amended, did you receive a copy of the amended information, and were you rearraigned?
• Were your substantial rights prejudiced by the amendment of the information?
• Does the amended information charge a lesser included crime or lesser degree of the same crime?
• Is a continuance necessary to investigate the amended charges?

10 Jurisdiction and Venue

• Does the court have jurisdiction over your person and over the subject matter?
• Was the conduct alleged to have been committed in whole or in part in the state - was an essential element of the crime committed in the state?
• If you are a nonresident, have you aided or abetted another to commit a crime within the state?
• Was the act committed in the county in which you are charged?
• Are you an adult, or has an order of declination been entered in your case. If the state fails to demonstrate that you are an adult, you must be charged in juvenile court and detained in a juvenile facility.

11 Former/Double Jeopardy

A mistrial generally results in a retrial; it is only a bar to retrial when the mistrial was improperly granted.

If a violation of RCW Chapter 69.50 (the Uniform Controlled Substances Act) is also a violation of federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.

• Are you being twice put in jeopardy, subjected to multiple punishments, for the same offense?
• Was prior mistrial improperly granted?

12 Statute of Limitations

• What is the applicable statute of limitations for the crime charged?
• Did the statute run before you were charged?
• Were you openly a resident of Washington during the statutory period?

1 Arraignment Hearing

The issues at arraignment are whether the hearing was held within the required time period, and what plea to enter. In most cases, a plea of not guilty should be entered.

2 Time

A defendant must be arraigned within fourteen days of the filing of the information, if the defendant is in custody or subject to conditions of release, and within fourteen days after your first appearance in superior court following the filing of the information if the defendant is not in custody, nor subject to conditions of release.

3 Pleas

• Are you competent to understand the process and to assist counsel in your defense?
• Were you suffering from any mental disorder or mental defect at the time of the commission of the offense?
• From what you know of the State's proof, is the case undercharged?

4 Pretrial Release and Bail Setting

• Is pretrial detention excessively long or does it interfere with necessary trial preparation?

5 Setting a Trial Date

• Does the 60-day or 90-day rule apply?
• Is the trial date set within the rule?
• If not, is the extension based upon a valid exception to the rule?

1 Discovery

CrR 4.7(a)(1) sets forth in detail the reciprocal obligations of the parties regarding discovery. In particular, the prosecuting attorney has a duty to disclose exculpatory evidence of information of which you are aware, whether it is evidence s/he intend to present in your case-in-chief, or in rebuttal.

• Is there a written report from every officer involved? What are the dates of the reports? How long after the incident were they written?
• Is the report writer giving a first-hand account of events, or is s/he providing a compilation of several officers' observations and actions?
• Is there a lab report?
• What physical evidence is being held for trial? Where is it being held - and how long do you get to see it?

2 Informants

Generally, the State need not disclose the identity of an informant furnishing information establishing probable cause for the issuance of a warrant. However, the State's privilege of nondisclosure must yield where such disclosure is relevant to the issue of your quilt or innocence, and essential to a fair trial.

3 Client Interview

• What is your version of events leading to your arrest?
• After reading the police reports, do you understand the State's case?
• Were the legal issues involved explained to you?

4 Investigate Police Misconduct

• Have the police exceeded their authority or otherwise acted improperly in the conduct of this case?
• Have the officers involved in this case acted inappropriately in other cases?
• Are there any similar pending cases with similar types of disputed facts?

5 Investigate Confidential Informant

• Is the identity of the informant disclosed?
• If not, what can you do to identify the informant?

6 Identification Procedures

• What identification procedures were utilized prior to your arrest? What has occurred following arrest?
• Did the identification procedures impermissibly taint the in-court identification? Viewing the totality of the circumstances, were police identification procedures (at the scene, lineup, showup, or view of a photo montage) "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification?"
• Was the witness shown a single photograph or a photo montage?
• Was the showup proper, that is, close in time and place?
• Would any other identification procedure be helpful to the defense, such as a lineup? If so, arrange it.

7 Compulsory Process

• Do you have a witness necessary to the defense who is not likely to respond to a subpoena?

8 Plea Negotiations

• In reaching a plea bargain agreement, consider the following questions:
• Should you plead to a reduced number of counts or to a lesser included offense, rather than plead as charged?
• What is the bottom of the standard range of the crime charged, and can sentences or other counts or other pending cases be run concurrently when your client has no defense and no bargaining position?
• Do your actions charged in separate counts constitute the same criminal conduct and thus do not add to the offender score?
• Should you cooperate with the law enforcement based on an agreement for a dismissal of counts or a reduction of sentence? Caveat: Only the prosecutor may make a binding agreement to dismiss or reduce the charge.
• Is there an issue of concurrent/consecutive sentences?
• Can there be an expedited charge and resolution if your client is a first offender?
• What are the risks/benefits to disclosing results of your investigation to the prosecutor in order to negotiate the bargain?

9 Speedy Trial

• When did the speedy trial period start?
• Was there any delay in filing the information?
• Were your whereabouts known or unknown?
• Was there any delay in arraignment?
• Was the case initially filed in district court or in superior court?
• Have you been in custody or out of custody pretrial?
• If you were in custody, were you on the current charge, or were you subject to another "hold" (subject to another warrant)?
• Did you fail to appear at any scheduled court hearing?
• Were there any continuances? If so, who requested them, and what were the reasons for the continuances? Did you object?
• Were there any five-day extensions by the court? If so, what were the reasons for the extensions? Did you object?
• Was there any delay associated with the filing of an affidavit of prejudice? Did you object?
• If the State sought the continuance, has it shown due diligence in trying to serve subpoenas?
• Were there any excluded time periods, for instance, for a competency determination? Were there any other tolled periods?
• Did you waive speedy trial? If so, was it in writing and did your client sign the waiver form? Was the waiver to a date certain? Did you object if it was not?
• Has there been a delay due to the granting of your motion for change of venue?
• Has a juvenile declination order been entered?
• Has a guilty plea been withdrawn?
• Was there a mistrial, and is this a new trial?
• Has the case been remanded by an appellate court for trial?
• In each of the above situations, were your substantial rights prejudiced by the delay?

10 Motion to Suppress Evidence

If your constitutional rights have been violated, counsel should timely file a motion to suppress, and a memorandum in support thereof, and serve copies on other counsel. It is very important to precisely articulate the evidence which counsel believes should be suppressed.

• Is there an argument to suppress any incriminating evidence?
• Can you gain any tactical advantage in negotiations with the prosecuting attorney by filing the suppression motion?
• Can you learn more about the evidence the State will present at trial by having the suppression hearing?
• Do you have standing to argue the suppression of the evidence?

11 Seizures

Caveat: the key to investigating and researching any Fourth Amendment issue is to first carefully consider what items of evidence seized by the police would be subject to suppression. Once that is determined, counsel can focus on how the police obtained the evidence and then whether that procedure was constitutionally valid.

• Were you seized? Could you reasonably have believed that you were not free to leave?
• What was the officers' "show of authority?"
• Was this a voluntary citizen/police encounter?
• If your vehicle was seized, did the seizure constitute an improper police impound or use of the community care taking function?

12 Arrest (Probable Cause)

No arrest may be made except upon probable cause.

• Did the police have probable cause to arrest you?
• Were there specific and articulable facts from which an officer could believe you were involved in criminal activity?
• When arrested, were you given an opportunity to post bail prior to a search at the scene or in the booking area at the jail?

13 Arrest With a Warrant

• Was there probable cause to arrest you?
• Was probable cause properly established in court?
• If you were arrested upon service of a search warrant, was the search warrant unconstitutionally over broad?
• Had the officers exceeded the scope of the search warrant by arresting you?
• Did your conduct observed by the officers executing the search warrant give the officers probable cause to arrest you?

14 Arrest Without a Warrant

Warrantless arrests are per se unreasonable, but may be valid under on of several carefully drawn exceptions.

• If you were arrested upon the warrantless entry into your residence by the police, were there exigent circumstances sufficient to justify that entry?
• Was there an invalid basis for stopping you? Was this a pretext stop?
• When arrested, were you given an opportunity to post bail prior to being searched?
• Were you arrested for violation of an overly broad statute or ordinance such as a drug loitering ordinance? What challenges can be made to the constitutional validity of such ordinance?

15 Investigatory Stops/Casual Street Encounters

• Were there sufficient reasons for stopping your vehicle?
• Is it a Terry stop or a casual street encounter with the police?
• If asked, did you give your correct name, and produce identification?
• Was there a proper basis for requesting identification?
• If you were a passenger in a car when the officer contacted the driver, was there any basis upon which the officer could ask you for identification, remove you from the car, search you, or arrest you?
• Was there a proper reason for detaining you?
• Were you stopped because you were in a high crime area? Was there any conduct raising an inference of criminal activity?
• Were you stopped because you looked out of place in the neighborhood (racial incongruity)?
• Was the reason for stopping you or your vehicle a mere pretext to discover evidence of other crimes (pretextual stop):
• Was your detention more than a limited intrusion?
• If there was a Terry stop, was the search beyond the scope of Terry?
• Was the stop based upon an informant's uncorroborated tip? For a stop based upon an informant's tip, both the informant and the informant's tip must be reliable.
• What is the scope of the permissible detention? Less of an intrusion is allowed for a minor traffic infraction.
• If your vehicle was stopped for an infraction, did the officer make any inquiry to determine whether you were unlikely to appear as promised by signing the citation? If there was no such inquiry, the arrest and any search may be invalid.
• When did the officer make the decision to release you? Was a search conducted after that point?
• Did you commit a misdemeanor in the officers' presence?

16 Search

Analysis of the constitutionality of a search rests upon whether it was conducted with a warrant or without a warrant.

• Did the officers' actions constitute a search?
• Did the officers have a valid search warrant supported by an affidavit or probable cause?
• Was the person conduction the search a private citizen acting on his/her own, or was s/he a State or police agent, acting at the request or instigation of the police or the State?

17 Search With a Warrant

The purpose of the exclusionary rule is to deter law enforcement officers from violating Article I, Section 7 of the Washington Constitution, and the Fourth Amendment to the United States Constitution. Evidence unlawfully seized by private individuals will not be suppressed unless the individual was acting as an agent of the police.

As a general rule, a search is unreasonable unless it is conducted pursuant to a search warrant issued properly in accordance with constitutional provisions, statutory provisions and CrR 3.6.

• Was the search warrant validly issued based on a proper affidavit, and was it properly served?
• Were you told of and shown a copy of the warrant?
• Was the magistrate who issued the warrant authorized to issue it?

18 Affidavit

The affidavit should state facts rather than recite conclusions.

• Was the supporting affidavit sufficient?
• Does the affidavit contain a sufficient statement of the facts for the issuing magistrate to make an independent determination of probable cause?
• Or, does the affidavit merely state conclusions?
• Does the affidavit contain "boilerplate" language such as a "quantity of a controlled substance," without any specification of details related to the particular case?

The warrant should specifically describe places or persons to be searched.

• Does the warrant specifically describe the people or place to be searched, and items to be seized?
• Is it a "John Doe" warrant? If so, is there a full description of the person? Does that description match your physical characteristics?
• Is there probable cause to support the search of a number of persons? A warrant to search all persons "coming to and going from" a named location may not be valid, because there is no description "with particularity" of persons to be searched.
• If the premises to be searched are an apartment or duplex, is the apartment number correct, or is the apartment or side of the duplex otherwise described?
• If it is a marijuana growing operation or a rural location, is the legal description correct? If there are many outbuildings on the property (sheds, barns, etc.) Does the warrant specify these? If so, is there probable cause to support searching these?
• Did the officers go outside the curtilage (the part commonly used to approach the residence)?

The information supporting the warrant should not be stale.

• If there is a gap between issuance of the warrant and service, is the item likely to be there at the time of execution (service) of the warrant?
• Could the drugs have been consumed in the time between the investigation and the issuance of the warrant?
• Is the information supporting the warrant stale in other ways (old photographs)?

Check for omissions or false statements by the affiant or informant.

• Are there material omissions, or material misrepresentations in the affidavit?
• Were the statements deliberate falsehoods or made in reckless disregard of the truth?

If information from an informant is included in the affidavit in support of probable cause, check to see that it meets the Aguilar-Spinelli test.

• Is the informant's identity disclosed?
• Is it a citizen informant, or paid informant?
• Was there a sufficient showing of the informant's reliability?
• Is the basis for the informant's knowledge adequately demonstrated?
• Is there sufficient information for the magistrate to find the informant to be believable, other than a mere statement that s/he is reliable? Consider the informant's track record, participation in a controlled buy, or his/her information leading to other arrests and convictions.
• Is there any independent police investigation corroborating the informant's statements?
• If utility records are part of the corroborating evidence, were they obtained in compliance with RCW 42.17.314?

The warrant must be signed by a person authorized by statute to sign search warrants?

19 Execution of Search Warrant

• Was the warrant properly executed (served)?
• Was the warrant executed within the time period specified by any controlling statute? Was an inventory return timely filed?
• Were you served with a copy of the search warrant and return?
• When was the warrant served?
• Did the police give the occupants a reasonable time to open the door? Or was the "knocking and announcing" simultaneous with the officers' entry into the premises?
• If the police entered through an open door, did the officers observe anything prior to entering the premises to justify entry without announcing their identity and purpose?
• If the door was not open, were there any exigent circumstances justifying forcible entry or entry without knocking and announcing (furtive noises - toilets flushing, people running)?
• Did the police read the warrant prior to serving it?
• Did the police exceed the scope of the warrant? Or did the police limit the items seized to the items specified in the warrant?
• Did the police detain and search all persons present, or did they also search those who came in during the execution of the search warrant? Was there any basis to do so? Any knowledge that the others were armed?

20 Telephonic Warrant

If a police officer does not have time to present a written affidavit in support of issuance of a warrant to a magistrate, s/he can seek a telephonic warrant. The request to the magistrate must be made by sworn testimony. That request and the magistrate's response to the request must be recorded. The request must be made to a magistrate who has authority to issue search warrants.

A defendant challenging the propriety of the issuance of the warrant has the right to a written transcript of the recording to preserve the issue for appellate review. Check to see if the judge put the police officer under oath.

• Was the warrant issued pursuant to a telephonic affidavit?
• Does the contemporaneously-made recording still exist?

21 Warrantless Searches

• Does an exception to the warrant requirement justify the warrantless search? Consider abandoned property, plain view, open view, curtilage, emergency, inventory and impoundment, or prevention of destruction of evidence.
• Did you have a reasonable expectation of privacy in the place searched?
• Was the place searched a residence in which criminal activity was openly conducted with members of the public?
• Was any of the evidence derived from an illegal search and seizure? Was it the "fruit of the poisonous tree"?

22 Exigent Circumstances

The following are considered exigent circumstances:

• Fleeing suspect.
• Hot pursuit.
• Mobility or destruction of evidence.
• Danger to arresting officer or to the public.
• Contraband or incriminating evidence.
• Mobility of a vehicle.
• Was the warrantless entry and subsequent search and seizure justified by exigent circumstances?

23 Consent to Search

• Did anyone open the door to the police?
• Who opened the door to the police? Spouse? House guest?
• Did the person who opened the door have authority to consent to search (minor child, visitor)? Did that person have "apparent authority?"
• What was the police officers' manner of entry?
• What evidence does the State have of consent?
• If consent was given, was the scope of consent restricted? If so, by whom, and what were the expressed restrictions?
• Were you given Miranda warnings?
• What is your education level?
• Were you advised you had a right to refuse consent to search?
• Was there any equivocation in giving consent such as misinterpreted gestures?
• If it was a "knock and talk" situation, what was the police officers' "show of authority?" Consider the effect on you of uniforms and weapons, and the cultural, educational, and sex differences between you and the police officers.
• Was there any language barrier between you and the officers?
• Can the State prove consent by clear and convincing evidence?

24 Search Incident to Arrest

• Was your arrest lawful?
• If the arrest was based on outstanding warrants, were they misdemeanor warrants over a year old?
• Did the officer run the warrant check prior to the arrest?
• Did you commit a crime in the officers' presence?
• Was there probable cause to arrest justifying a search whether or not the search occurred prior to the actual arrest?

• If so, were you intoxicated?
• Did you refuse to sign a promise to appear?
• Was there any justification other than to issue you a citation, rather than take you into custody?
• If you were a passenger in a vehicle, was there any basis for the officer to order you out of the vehicle, or search, detain, or arrest you?
• Did the search incident to arrest justify the search of the premises, i.e., an automobile, where you were arrested?
• Were any containers opened during the search?

25 Search in Plain View/Open View

• Did the police have a prior justification for the intrusion?
• Did the police officers merely observe what was there to be seen?
• Was the officers' method of viewing the object particularly obtrusive?
• Did the officers use anything to enhance their senses?
• Did the officers make a substantial and unreasonable departure from the area in which they were justified to be?
• Was the discovery of the items in plain view inadvertent?
• Are any other senses involved such as plain touch (felt like a weapon) or plain smell (scent of marijuana emanating from a shed or vehicle)? Do these senses support probable cause or exceptions to the warrant requirement?
• Is the area searched outside the curtilage of a residence?
• Has the landowner made an effort to exclude persons from entering the area such as erecting "no trespassing" signs or fences?
• Is the area accessible to the public?

26 "Pat-down" Search of Frisk for Weapons

• How intrusive was the search of your person?
• Did the officers have reason to believe you were armed and presently dangerous?
• Did the officer exceed the scope of a protective pat-down for weapons?
• Was any part of the object seized sticking out of a pocket?
• If so, was it clearly recognizable as contraband, or did it resemble a weapon?
• Was a body cavity search conducted?

27 Private Search

• Who conducted the search?
• Did emergency medical technicians or other medical personnel find drugs or paraphernalia while inventorying your property?
• Were the medical personnel searching at the instigation of the police or State?
• Did school personnel conduct the search? Were they acting as agents of the police or of the State?

28 Booking Search

• Were you informed of the bail and given an opportunity to post bail prior to any search?
• Were you questioned during the booking process?
• Did you make incriminating statements in answer to the booking questions?
• Were the questions other than those necessary to fill out inmate processing forms?
• Were narcotics or paraphernalia found on you, or on the floor around you during the booking search?
• Which booking officer found them?
• How many people were being booked at the same time, and what were their charges?
• Is there any chance of confusion as to who possessed the controlled substance(s) or paraphernalia?

29 Impounded Vehicle

• Was the search an inventory of an impounded vehicle?
• Was there a reason to impound the vehicle, or was it locked and lawfully parked?
• Was the vehicle abandoned, impeding traffic, or a safety hazard?
• Was the inventory a standard police procedure, a part of the community care taking function?
• Was there reason to believe the vehicle contained evidence of a crime?

30 Areas or Objects Having Greater Protection Under the State Constitution then Under the Fourth Amendment

• Is the area or object searched uniquely protected under the State Constitution?
• Was the search conducted in a public restroom? Was the search of a toilet stall? Was the stall occupied and as the door closed?
• Was the search of garbage cans placed at the curbside for collection?
• Was the search of medical records?

31 Exceeding the Scope of the Search

• Was the extent of the search justified under the circumstances?
• As to consent, did the officers exceed the scope of any consent given?
• As to plain view, did the officers make a substantial and unreasonable departure from the area in which they were justified to be?

32 Exclusionary Rule

Any and all evidence derived from an illegal search and/or seizure is also the proper subject of a suppression motion.

33 Remedy (Exclusionary Rule)

The remedy for violation of an individual's constitutional rights in the conduct of a search or seizure is suppression of the evidence under the exclusionary rule. In many instances, suppression of evidence means dismissal of the charges.

34 Motion to Suppress Statements

A motion to suppress your statements may be based on violation of your Miranda rights, or other constitutional violations rendering the statements involuntary, or violation of statutes relating to the recording of the wiretapped conversation or taped statement.

35 Custody

In order to exclude statements, the statements must be the result of a "custodial interrogation."

• Were you in custody at the time of questioning?
• What evidence was there that you were not free to leave?
• What crime were you in custody for?

36 Interrogation

• Were you interrogated, or were the officers' actions such that they would necessarily elicit an incriminating response from your client?
• What evidence is there that your statement was spontaneous?
• What was the length of the interrogation?
• What was the manner of the interrogation?

37 Waiver/Consent

• Were you advised of your full Miranda rights?
• Did you acknowledge that you understood your rights? In writing?
• Was there any request for counsel, even if it could be considered equivocal?
• At any time, did you assert your right to counsel (Sixth Amendment right and Fifth Amendment right)?
• Was your assertion of your right to counsel honored immediately?
• If you once asserted your right to counsel, and you reinitiated contact with the police, was the prior assertion scrupulously honored prior to resumption of questioning?
• Were the rights read by the officer from a card, or did you read them from a preprinted from, and signan acknowledgment of rights and waiver of rights form?
• Did you in any way indicate that you understood your rights? If so, how? After each right was read?
• Did you refuse to sign the waiver of rights form?
• Were you suffering from the effects of alcohol or other drug at the time of the giving of the statement?
• If you do not speak English, were the rights accurately translated?
• If an interpreter was used, was it a disinterested person, rather than a codefendant, an INS agent, or a bilingual detective?

38 Spontaneous Statements

• Did you give a statement in response to questioning or was it spontaneously given?
• Did the officers set up a situation to induce a statement?

39 Violations of Taped Statement Statute

• Was the statement taped?
• If so, did the tape substantially comply with RCW 9.73.090(1)(b)? The date, starting time and ending time, and Miranda warnings need to be included on the tape.

40 Motion to Dismiss (State v. Knapstad)

The trial court has inherent power to dismiss a prosecution before trial if the State's pleadings, including any bill of particulars, are insufficient to make out a prima facie case for all the elements of the charge.

A Knapstad motion is somewhat similar to summary judgment proceedings in civil cases, but a dismissal under Knapstad is not a bar to a subsequent prosecution.

41 Motion to Dismiss Based on Violations of The Defendant's Constitutional Rights

• Is the charged statute vague or over broad?
• If you are charged with violation of a drug loitering ordinance, compare it to the Tacoma ordinance found to be constitutional by the state Supreme Court.
• Does the statute improperly delegate legislative authority? Are there sufficient standards to guide the actions of the body to which the authority was delegated?
• Have you been denied due process?
• Have you been denied the equal protection of the laws?
• Is the local ordinance upon which you were charged preempted by state law?
• Does a special and a general statute cover your actions? Are you charged under the appropriate statute?
• Does the statute contain more than one subject and are the various subjects expressed in the title as required by Article 2, Section 19 of the Washington Constitution?
• Are there any former or double jeopardy issues?
• Was there pre-accusatorial delay which prejudiced your right to a fair trial?
• Does the case involve an ex post facto application of the law?
• Were you charged outside the statute of limitations for the crime?

42 Motion to Dismiss Sentencing Enhancement

A sentencing enhancement is also an element the State must prove beyond a reasonable doubt. Therefore, it is also subject to a motion to dismiss. Read the applicable enhancement statute carefully to determine if there is anything the State did not establish. For instance, with the school zone enhancement, RCW 69.50.435, does the school in question (whether private or public alternative high school) fit within the statutory definition of "school?"

43 Motion for Change of Venue

• Has Venue been established?
• Is the county in which you were charged the one in which the crime, or any pat of it, occurred?
• Has there been extensive, negative publicity in the county in which venue would otherwise be appropriate?

44 Motion to Hold a Material Witness

Either party can ask the court to issue a warrant, with a reasonable bail, to hold a material witness.

• Are you having trouble locating a necessary witness for the defense?
• When a witness is located, is it likely that s/he will voluntarily comply with his/her subpoena?

45 Change of Plea

• Do you understand your alternatives to pleading guilty? Do you clearly understand the court proceedings?
• Do you desire to plead guilty?
• Do you understand the direct and indirect consequences of pleading guilty?
• What kind of plea is it? Alford Plea? Newton plea? In either of these types of pleas, you state that you believe the State can prove the charge(s) to which you are pleading guilty but do not make a specific statement admitting the crime. This type of plea is usually entered in the situation where you do not remember the events or your conduct because you were under the influence of alcohol or drugs at the time of the events for which you are charged, or were you are pleading guilty pursuant to a favorable plea bargain.

Hopefully, this exposition of substantive and procedural matters can help a potential client with the task of dealing with fear of the unknown. Remember, this firm treats the client, for practical purposes, as co-counsel.
A Seattle Criminal Defense Attorney is waiting for your call.