State v. Mankin, — P.3d —, No. 38977-1-II, 2010 WL 4069487 (Wash. Ct. App. Oct. 19, 2010).
Defendant was charged with the unlawful manufacture of methamphetamine and sought pretrial interviews with three police officers involved in the case. The officers were willing to talk to defense counsel, but when they refused to allow him to tape record them, he terminated the interviews. Defendant then sought a court order requiring the witnesses to submit to a recorded deposition pursuant to a state court rule. The trial court granted defendant’s request, holding that witnesses were subject to deposition after they refused to consent to the tape recording of a voluntary pretrial interview in a criminal case. The state appealed, arguing, inter alia, that the state court rule permitting depositions to be ordered does not apply when a witness has agreed to the interview but has merely placed a condition on the interview (for example, that it not be tape recorded). In response, defendant argued that the witnesses’ refusal to be taped was the equivalent of a refusal of the interview and that a failure of the trial court to require the witnesses to submit to a taped interview would violate his rights to effective assistance of counsel and to a fair trial. The court of appeals rejected defendant’s argument, holding that although defendant has a right to adequate trial preparation, “[t]he right to interview a witness does not mean that there is a right to have a successful interview.” On the contrary, the court explained, because a witness may refuse to give an interview at all, “it is logical to conclude that a witness may also choose under what conditions he or she is willing to give an interview, including whether it should be recorded.” Accordingly, the court reversed the decision of the trial court ordering the witnesses to submit to a taped deposition.
NCVLI participated in this proceeding as amicus curiae, arguing that because there is no differentiation between types of witnesses in the state court rule providing for taped depositions, the trial court’s ruling may lead to a victim being compelled to talk to defense counsel while a tape or video recorder is running. NCVLI argued that such an outcome would violate a victim’s constitutional and statutory rights and posed the danger of re-victimizing the victim.