SB 5714 — Concerning the reliability of evidence in criminal proceedings.

S-1665.2SUBSTITUTES-0532.3SENATE SENATE BILL 5714State of Washington66th Legislature2019 Regular SessionBySenateSessionBySenators Law & Justice (originally sponsored by Senators Dhingra, Padden, Salomon, Kuderer, Billig, Darneille, Das, and Hasegawa)READHasegawaRead FIRSTfirst TIMEtime 02/22/19.AN01/29/19.Referred to Committee on Law & Justice.AN ACT Relating to the reliability of evidence in criminal proceedings;

The legislature further recognizes that mistaken identification by witnesses to crime and false testimony by informants who are given benefits in exchange for their testimony have contributed to the conviction of the innocentnot guilty in Washington state.

Through the development of best practices related to the collection of eyewitness evidenceinformants and theevidence, use of informant witnesses, and the adoption of model guidelines to implement those practices, the legislature aims to improve the quality of such evidence and reduce the risk of wrongful conviction related to these contributing factors.NEW SECTION.  Sec.

and (d) athas anyagreed timeto receives consideration in exchange for providing the information or testimony.(2) A work group is established to adopt model guidelines and develop a training curriculum based on those guidelines to assist prosecuting attorneys in evaluating the reliability of information or testimony offered by an informant before it is used in connection with any criminal proceeding and in determining adequate preliminary disclosures to the defense.(a) The president of the senate and the speaker of the house of representatives shall jointly appoint the members of the work group to include the following:(i) One member representing the senate;(ii) One member representing the house of representatives;(iii) The executive director of the Washington association of sheriffs and police chiefs or the executive director's designee;(iv) Two members representing the Washington association of prosecuting attorneys, each from a diverse geographical location;(v) One member representing the Washington defender association;(vi) One member representing the Washington association of criminal defense lawyers;(vii) One member representing the Washington innocence project;

and(iii) Collecting local protocols required under subsection (3) of this section.(c) The work group shall hold its initial meeting no later than July 31, 2019, and complete the model guidelines and training curriculum no later than November 30, 2019.(d) The work group shall prepare and submit to the appropriate committees of the legislature a report including the model guidelines, the training curriculum, and a summary of its work by November 30, 2019.(e) The work group shall function within existing resources.(3) No later than December 31, 2020, each county prosecuting attorney shall:(a) Adopt and implement a written local protocol for the use of informants consistent with the model guidelines developed pursuant to subsection (2) of this section, and submit a copy of the local protocol to the work group established under subsection (2) of this section.(i) If a county prosecutor adopts the model guidelines developed by the work group established under subsection (2) of this section, it has met the requirements of this subsection.(ii) If a county prosecutor chooses to adopt its own local protocol, the protocol must articulate adequate preliminary disclosures to the defense and include a list of procedures for prosecuting attorneys to follow when evaluating the reliability of an informant that includes:(A) The complete criminal history of the informant including pending criminal charges;(B) AnyThe considerationbenefit providedprovided, inwhether exchange for the information or testimony;(C) Whether the informant's informationstatement or testimonyinformation was modified or recanted;(D)recanted;(C) The number of times the informant has previously provided information or testimony in exchange for consideration;

and(E)and(D) The kind and quality of other evidence corroborating the informant's informationstatement or testimony;(b) Establish and maintain a central record of informants used in the course of criminal proceedings as well as formal offers to give testimony or other information.

UnlessThe the Washington pattern instructions committee adopts its own language by December 1, 2019, the instruction should be substantially similar to the following form:"Theform:"Testimony testimonyhas ofbeen anreceived informant in exchangethis fortrial afrom promisean byinformant. the government, for money, or other advantage must always be examined and weighed by the jury with greater care and caution than the testimony of ordinary witnesses.

You,An theinformant jury,is musta decidewitness whetherwho theprovided informant's testimony hasin beenexchange affectedfor bya thesepromise circumstances, by the informant'sgovernment, interestfor inmoney the outcome of the case, by prejudice against the defendant, or byother theadvantage. benefits that the informant has received.

YouFor shouldthese keepreasons, in mindevaluating thatthe such testimony isof alwaysan toinformant, beyou receivedshould withconsider cautionthe andextent weighedto withwhich greator care.Youwhether should never convict any defendant upon the unsupported testimony ofmay anhave informantbeen unlessinfluenced youby believeany thatof testimonythese beyondfactors. a reasonable doubt."--- END ---

In addition you should examine the testimony of an informant with greater caution than that of other witnesses.

The testimony of a paid incentivized witness must be subjected to a higher degree of scrutiny as to both weight and credibility.

You, the jury, must decide if such a witness has a greater motive to testify truthfully or falsely.

If you conclude that the payment to the incentivized witness was fully or partially contingent upon the content of his or her testimony at trial or upon a finding of guilt, then you should subject his or her testimony to an even higher degree of scrutiny."--- END ---