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					  PROCEEDINGS OF THE WASHINGTON STATE ASSOCIATION OF
  MUNICIPAL ATTORNEYS' 2010 ANNUAL SPRING CONFERENCE


                                      May 5-7, 2010
                                at Vancouver, Washington

Ethics Primer Overview and Who is the Client?*                                  1
By Mike Connelly, City Attorney of Spokane Valley


Criminal Law Update                                                             2
By David Schneider, Asst. City Attorney of Lacey


Update on Public Records: Focus on Social Media                                 3
By Ramsey Ramerman, Asst. City Attorney of Everett


Overview of “Access to Private Property Deskbook”                               4
By Laura Watson, Office of the Attorney General


A Collision Course: FEMA’s Floodplain Re-Mapping and NMFS’ Biological Opinion
Regarding the National Flood Insurance Program                                  5
By Molly Lawrence, GordonDerr LLP


Revising Boilerplate Contract Provisions in an Electronic World                 6
By Holly Towle, K & L Preston Gates Ellis


Nuts and Bolts Bidding Issues: Bidder Responsibility                            7
By William Linton, Inslee Best Doezie & Ryder


Telecommunications Update, Including Verizon Tax Refund Request**               8
By Chris Bacha, Kenyon Disend


Construction Contracting Issues in Tough Times – What Owners are Doing about
Problematic Bids, Bidders, and Claims                                        9a
By Gregory Clark, Foster Pepper PLLC

Construction Contracting Issues in Tough Times – Examples of Contract Provisions
to be Modified; Selected Case Law Discussion                                    9b
By Jon Hongladarom, Foster Pepper PLLC


*See Public Law Ethics Primer
**Papers will be provided at the time of presentation.
Construction Contracting Issues in Tough Times – Things to Consider if the
Contractor Files Bankruptcy                                                                 9c
By Jane Pearson, Foster Pepper PLLC


The DUI Trial: Strategies for Success in No-BAC Cases**                                     10
By Moses Garcia, Washington State Patrol, Traffic Safety Resource Prosecutor


Working with Interpreters                                                                   11
By Katrin Johnson, Administrative Office of the Courts


Domestic Violence: Prosecuting Techniques When the Victim is Uncooperative                  12
By Teresa Cox, Asst. City Attorney of Everett


Crawford: Forfeiture and Use of Material Witness Warrants                                   13
By Tim Donaldson, City Attorney of Walla Walla


Legislative Update from 2010 Session                                                        14
By Rod Fleck, City Attorney of Forks, and Candice Bock, Association of Washington Cities


Personnel and Labor Law Update, Including Furloughs and Layoffs                            15a
By Bruce Schroeder, Summit Law Group PLLC


Update on Furlough and Layoff Legal Challenges                                             15b
By Siona Windsor, Asst. City Attorney of Bellevue


Brady v. Maryland and the Continuing Duty to Disclose: Prosecutor’s Obligations            16a
By Joe Svoboda, City Prosecutor of Lacey


Brady Cops: Where Have We Been and Where Are We Going . . .                                16b
By Adam Rosenberg, Keating, Bucklin & McCormack, Inc., P.S.


Ethics: Prosecutorial Misconduct*                                                           17
By Dan Heid, City Attorney of Auburn


Complying with Criminal Records Privacy Act and Public Records Act**                        18
By Jeff Myers, Law, Lyman, Daniel, Kamerrer & Bogdanovich


*See Public Law Ethics Primer
**Papers will be provided at the time of presentation.
    Crawford: Forfeiture and Use of Material Witness Warrants
                Washington State Association of Municipal Attorneys
                             Spring 2010 Conference
                             Vancouver, Washington
                  by Tim Donaldson, Walla Walla City Attorney*

         Crawford v. Washington2 marked a major shift in confrontation jurisprudence.
Prior to Crawford, hearsay could be admitted in a criminal trial, without violating a
defendant's right to confrontation, if the declarant of a statement was unavailable and
the out-of-court statement was reliable.3 Reliability could be shown if the statement
fell within a firmly rooted hearsay exception, or if there were particular indicia of
reliability.4 Crawford held that the reliability test was contrary to the original intent
of the Confrontation Clause.5
         Crawford established a new test which distinguishes between nontestimonial
and testimonial out-of-court statements.6 The Court said that states may develop


*
   Walla Walla City Attorney & Municipal Prosecutor, 1996-present; Washington
State Coalition Against Domestic Violence Team Training faculty member,
1999-present; admitted to bar associations in Washington (1987), Oregon (1992), and
Idaho (1994); J.D. magna cum laude, Gonzaga University School of Law, 1987; B.A.,
Whitman College, 1984.
2
    541 U.S. 36 (2004).
3
   Ohio v. Roberts, 448 U.S. 56, 65-66 (1980), abrogated by Crawford v.
Washington, 541 U.S. 36, 60-69 (2004).
4
  Ohio v. Roberts, 448 U.S. 56, 66 (1980), abrogated by Crawford v. Washington,
541 U.S. 36, 60-69 (2004).
5
    Crawford v. Washington, 541 U.S. 36, 61-62 (2004).
6
    Crawford v. Washington, 541 U.S. 36, 51-53 (2004).


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hearsay rules regarding the admissibility of nontestimonial hearsay.7 However, the
Court held that the Sixth Amendment demands an opportunity for cross-examination
in criminal cases when testimonial hearsay is involved.8
        The Crawford Court described various formulations which may constitute a
core class of testimonial statements. The formulations include ex parte in-court
testimony or its functional equivalent, extrajudicial statements contained in
formalized materials such as affidavits, depositions, prior testimony, or confessions,
and statements made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial.9
The Court left "for another day any effort to spell out a comprehensive definition of
'testimonial.'"10 Without adopting a precise articulation, the Court remarked that
statements taken by police officers in the course of interrogations are testimonial even
under a narrow standard.11
        In Davis v. Washington,12 the Court further described when statements made
in response to questioning may qualify as testimonial statements. The Court held in
Davis that responses to police questioning are not testimonial if the inquiry is
conducted under circumstances "objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency[,]" but they
are testimonial if there is no ongoing emergency and "the primary purpose of the
interrogation is to establish or prove past events potentially relevant to later criminal

7
     Crawford v. Washington, 541 U.S. 36, 68 (2004).
8
     Crawford v. Washington, 541 U.S. 36, 53-59, 61-62 (2004).
9
  Crawford v. Washington, 541 U.S. 36, 51-52 (2004); see Melendez-Diaz v.
Massachusetts, 129 S.Ct. 2527, 2532 (2009).
10
     Crawford v. Washington, 541 U.S. 36, 68 (2004) (bracketed punctuation
substituted for punctuation in original).
11
     Crawford v. Washington, 541 U.S. 36, 52-53 (2004).
12
     547 U.S. 813 (2006).


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prosecution."13 Davis confirmed that nontestimonial out-of-court statements do not
trigger confrontation concerns, writing: "[i]t is the testimonial character of the
statement that separates it from other hearsay that, while subject to traditional
limitations upon hearsay evidence, is not subject to the Confrontation Clause."14
        The Court wrote in Crawford that the Sixth Amendment does not suggest any
open ended exceptions.15 It recognized two instances in which statements made by
an unconfronted missing witness may be admitted:16 (1) dying declarations,17 (2)
statements made by someone whose absence from court was wrongfully procured by
the defendant.18 Crawford did not fully explain the wrongful procurement exception
and instead noted only that “the rule of forfeiture by wrongdoing (which we accept)
extinguishes confrontation claims on essentially equitable grounds....”19 The
rationale behind the wrongdoing exception was later explained by in Davis,20 where

13
     Davis v. Washington, 547 U.S. 813, 822 (2006) (bracketed punctuation
substituted for punctuation in original).
14
     Davis v. Washington, 547 U.S. 813, 821 (2006).
15
     Crawford v. Washington, 541 U.S. 36, 54 (2004).
16
     See Giles v. California, 128 S.Ct. 2678, 2682-83 (2008)
17
    Crawford v. Washington, 541 U.S. 36, 56 n.6 (2004). See generally, Tim
Donaldson and J Preston Frederickson, Dying to Testify? Confrontation vs.
Declarations in Extremis, 22 REGENT U. L. REV. 35 (2009-10).
18
    Crawford v. Washington, 541 U.S. 36, 62 (2004); see also Giles v. California, 128
S.Ct. 2678, 2683-93 (2008).        See generally, Tim Donaldson, Combating
Victim/Witness Intimidation in Family Violence Cases: A Response to Critics of the
“Forfeiture by Wrongdoing” Confrontation Exception Resurrected by the Supreme
Court in Crawford and Davis, 44 IDAHO L. REV. 643 (2008).
19
     Crawford v. Washington, 541 U.S. 36, 62 (2004).
20
     547 U.S. 813 (2006).


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the Court wrote:

       [W]hen defendants seek to undermine the judicial process by procuring or
       coercing silence from witnesses and victims, the Sixth Amendment does not
       require courts to acquiesce. While defendants have no duty to assist the State
       in proving their guilt, they do have the duty to refrain from acting in ways that
       destroy the integrity of the criminal-trial system.21
       Lower courts sharply divided following Crawford22 and Davis23 upon how the
wrongdoing exception should be applied.24 Many courts held that the exception
applied anytime that the wrongful acts of a defendant were responsible for the
absence of a witness.25 Many other courts disagreed and held that the right of


21
     Davis v. Washington, 547 U.S. 813, 833 (2006) (italics theirs).
22
     Crawford v. Washington, 541 U.S. 36 (2004).
23
     547 U.S. 813 (2006)
24
   See Gonzalez v. State, 195 S.W.3d 114, 116-26 (Tex. Crim. App.), cert denied,
127 S. Ct. 564 (2006) (discussing the split without deciding the issue).
25
    E.g., U.S. v. Garcia-Meza, 403 F.3d 364, 369-71 (6th Cir. 2005); U.S. v. Mayhew,
380 F. Supp. 2d 961, 965-68 (S.D. Ohio 2005); People v. Giles, 152 P.3d 433, 439-43
(Cal. 2007), vacated and remanded by Giles v. California, 128 S.Ct. 2678, 2693
(2008); People v. Moore, 117 P.3d 1, 5 (Colo. App., 2004), overruled sub silentio in
People v. Moreno, 160 P.3d 242, 246-47 (Colo., 2007) (adopting an intent-to-silence
requirement without expressly addressing Moore); State v. Meeks, 88 P.3d 789, 794
(2004), overruled on other grounds, State v. Davis, 158 P.3d 317 (2006); People v.
Bauder, 712 N.W.2d 506, 514-15 (Mich. App. 2005), appeal denied, 720 N.W.2d 287
(Mich. 2006); State v. Moua Her, 750 N.W.2d 258, 269-75 (2008) (holding that there
is no intent requirement in murder cases), judgment vacated 129 S.Ct. 929 (2009);
State v. Sanchez, 177 P.3d 444, 452-57 (Mont. 2008) (limited to instances in which
there is no dispute that the defendant created the witness’ unavailability); State v.
Brooks, No. 2004-02834-CCA-R3-CD, 2006 WL 2523991, *8-9 (Tenn. Crim. App.

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confrontation could not be forfeited unless it was additionally shown that the
defendant intended to make the missing witness unable to testify.26 In 2008, the
Supreme Court adopted the latter view in Giles v. California that a criminal
defendant's right to confront a missing witness is not forfeited by wrongdoing unless
the defendant caused the absence of the witness for the purpose of making the witness
unavailable to testify.27 The Giles Court left many questioned unanswered regarding
the wrongdoing exception, but it did indicate that domestic abuse, threats of abuse,
and other evidence that a defendant intended to dissuade a victim from seeking
outside help could be highly relevant to any inquiry into whether or not the
defendant’s conduct was designed to prevent a witness from testifying.28

Jan. 22, 2006), rev’d 249 S.W.3d 323 (Tenn. 2008); Commonwealth v. Salaam, 65
Va. Cir. 404, 412-14 (Norfolk Cir. Ct. 2004), aff’d, No. 1882-05-1, 2006 WL
3589008 (Va. Ct. App. Dec. 12, 2006) (the Virginia Court of Appeals found it
unnecessary on appeal to address hearsay or confrontation issues discussed in the
Circuit Court opinion, because error, if any, was harmless); State v. Mason, 160
Wn.2d 910, 926 ¶¶28-29, 162 P.3d 396 (Wash. 2007), cert. denied, 128 S.Ct. 2430
(2008); State v. Jensen, 727 N.W.2d 518, 534-35 (Wis. 2007).
26
    E.g., People v. Moreno, 160 P.3d 242, 245-47 (Colo. 2007); People v. Stechly,
870 N.E.2d 333, 350-53 (Ill. 2007) (plurality opinion); Commonwealth v. Edwards,
830 N.E.2d 158, 170 (Mass. 2005); State v. Wright, 726 N.W.2d 464, 479 (Minn.
2007) (recognizing an intent requirement in cases not involving murder of a missing
witness); State v. Romero, 133 P.3d 842, 850-55 (N.M. App. 2006), aff’d, 156 P.3d
694, 701-03 (N.M. 2007), cert. dismissed, 128 S.Ct. 976 (2008); State v. Brooks, 249
S.W.3d 323, 328-29 (Tenn. 2008) (requirement based upon language in an evidence
rule).
27
     See Giles v. California, 128 S.Ct. 2678, 2682-84, 2687-88 (2008).
28
    Giles v. California, 128 S.Ct. 2678, 2692-93 (2008). See generally, Tim
Donaldson and Karen Olson, “Classic Abusive Relationships” and the Inference of
Witness Tampering in Family Violence Cases after Giles v. California, 36 LINCOLN L.
REV. 45 (2008-09).


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A.      Forfeiture by Wrongdoing in Washington
        The forfeiture by wrongdoing doctrine is still relatively new in Washington.
As late as the Spring of 2007, the Washington Court of Appeals wrote that "[t]his
doctrine has been adopted by numerous state courts. But the doctrine of forfeiture
has not yet been adopted in Washington."29 The Washington Supreme Court adopted
the doctrine by judicial opinion in the Summer of 2007.30 The Washington Supreme
Court wrote in State v. Mason:

       Whether or not to adopt the doctrine of forfeiture by wrongdoing, is an issue
       of first impression for Washington State. Under this doctrine, defendants who
       are responsible for a witness' unavailability at trial forfeit their right to
       confront the missing witness.
       ¶ 23 Every federal circuit has adopted the forfeiture doctrine, as have 21
       states. The Supreme Court provided an explanation for the recent emergence
       of this doctrine. "The Roberts approach to the Confrontation Clause
       undoubtedly made recourse to this doctrine less necessary, because
       prosecutors could show the 'reliability' of ex parte statements more easily than
       they could show the defendant's procurement of the witness's absence." Davis,
       126 S.Ct. at 2280.
       ¶ 24 Justice Antonin Scalia has explained that the forfeiture doctrine is
       grounded in equity. "[T]he rule of forfeiture by wrongdoing (which we accept)
       extinguishes confrontation claims on essentially equitable grounds."

29
    State v. Tyler, 138 Wn.App. 120, 128-29, 155 P.3d 1002 (2007). See also State
v. Mason, 127 Wn.App. 554, 570 ¶32, 126 P.3d 34 (2005), aff'd on other grounds
State v. Mason, 160 Wn.2d 910, 162 P.3d 396 (Wash. 2007), cert. denied, 128 S.Ct.
2430 (2008). But see State v. Crawford, 147 Wn.2d 424, 431-32, 54 P.3d 656 (2002)
(acknowledging the existence of waiver by misconduct, but finding it inapplicable
under the facts of the case), reversed on other grounds by Crawford v. Washington
541 U.S. 36 (2004).
30
    State v. Mason, 160 Wn.2d 910, 925 ¶26, 162 P.3d 396 (Wash. 2007), cert.
denied, 128 S.Ct. 2430 (2008).


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        Crawford, 541 U.S. at 62, 124 S.Ct. 1354. The high court reiterated its
        approval of the doctrine in Davis, remanding Hammon v. State, 829 N.E.2d
        444 (Ind.2005), to the Indiana courts to consider, if appropriate, the
        application of the doctrine. "The Indiana courts may (if they are asked)
        determine on remand whether such a claim of forfeiture is properly raised and,
        if so, whether it is meritorious." 126 S.Ct. at 2280.
        ¶ 25 The doctrine is older than Crawford; the Supreme Court approved of it in
        the 1878 case of Reynolds v. United States, 98 U.S. (8 Otto) 145, 158, 25
        L.Ed. 244 (1878). More recently, and more bluntly, an appellate court in
        Connecticut defended the doctrine with the quip, "'[t]hough justice may be
        blind it is not stupid.'" State v. Henry, 76 Conn.App. 515, 533, 820 A.2d
        1076 (2003) (quoting State v. Altrui, 188 Conn. 161, 173, 448 A.2d 837
        (1982)).
        ¶ 26 We agree that equity compels adopting the doctrine of forfeiture by
        wrongdoing. In this case, we will not allow Mason to complain that he was
        unable to confront Santoso when Mason bears responsibility for Santoso's
        unavailability. Mason made his right impossible to implement; he has only
        himself to blame for its loss.31
        1.      Intent-to-Silence
        The Washington Supreme Court rejected an argument in Mason that the
prosecution must prove that a defendant meant to keep a witness from testifying
before the forfeiture by wrongdoing doctrine applied.32 The Mason majority wrote
that "[s]pecific intent to prevent testimony is unnecessary."33 However, the Mason
decision was issued before the U.S. Supreme Court decided Giles.34 In Giles the

31
    State v. Mason, 160 Wn.2d 910, 924-25 ¶¶22-26, 162 P.3d 396 (Wash. 2007),
cert. denied, 128 S.Ct. 2430 (2008).
32
    State v. Mason, 160 Wn.2d 910, 926 ¶28, 162 P.3d 396 (Wash. 2007), cert.
denied, 128 S.Ct. 2430 (2008).
33
     Id.
34
     Compare State v. Mason, 160 Wn.2d 910, 162 P.3d 396 (Wash. 2007) (decided

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U.S. Supreme Court held that the wrongdoing doctrine does not apply unless the
defendant caused the absence of the witness for the purpose of making the witness
unavailable to testify.35 The Washington Court of Appeals subsequently recognized
that "Giles overrules Mason to the extent Mason holds that a specific intent to prevent
testimony is not required to apply the forfeiture doctrine."36 Therefore, as it currently
stands, the wrongdoing doctrine applies in Washington "only when the evidence
shows the wrongdoing was intended to prevent the testimony...."37
        2.     Burden of Proof (clear, cogent and convincing evidence)
        There is a jurisdictional split upon the standard of proof necessary to apply
forfeiture. Some jurisdictions require proof only by a preponderance of the
evidence.38 Others require a more stringent showing of clear and convincing
evidence.39 The wrongdoing exception codified by Federal Evidence Rule 804(b)(6)

July 19, 2007), cert. denied, 128 S.Ct. 2430 (2008) with Giles v. California, 128 S.Ct.
2678 (2008) (decided June 25, 2008).
35
     See Giles v. California, 128 S.Ct. 2678, 2682-84, 2687-88 (2008).
36
  State v. Fallentine, 149 Wn.App. 614, 620 n. 13, 215 P.3d 945, review denied 166
Wn.2d 1028 (2009).
37
  State v. Fallentine, 149 Wn.App. 614, 620 ¶16, 215 P.3d 945, review denied 166
Wn.2d 1028 (2009).
38
     The leading pre-Crawford cases for a preponderance standard are U.S. v.
Mastrangelo, 693 F.2d 269, 272-73 (2d Cir. 1982); Steele v. Taylor, 684 F.2d 1193,
1202-03 (6th Cir. 1982), cert. denied, 460 U.S. 1053 (1983); and U.S. v. Balano, 618
F.2d 624, 629 (10th Cir. 1979), cert. denied, 449 U.S. 840 (1980), overruled sub
silentio on other grounds, Richardson v. U.S., 468 U.S. 317, 325-26 (1984). The
leading post-Crawford cases for a preponderance standard are People v. Jones, 714
N.W.2d 362 (Mich. App.), appeal denied, 721 N.W.2d 215 (2006); Commonwealth
v. Edwards, 830 N.E.2d 158, 172-73 (Mass. 2005); and State v. Jensen, 727 N.W.2d
518, 535-36 (Wis. 2007).
39
     The leading pre-Crawford cases for a clear-and-convincing evidence standard are

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adopts a preponderance standard.40 This is likely the federal standard. The U.S.
Supreme Court took no position in Davis upon the appropriate standard of proof, but
it mentioned the preponderance standard codified by evidence rule.41 The U.S.
Supreme Court similarly did not adopt a standard of proof in Giles, but the majority
again described Federal Evidence Rule as the codification of the forfeiture by
wrongdoing rule.42 Nonetheless, Washington appears to adhere to a clear, cogent,
and convincing evidence standard adopted in Mason.43
       Good argument may be made that the Washington Supreme Court should
reconsider the evidentiary standard adopted in Mason in light of Giles. The
Washington Supreme Court recognized in Mason that many critical evidentiary
determinations, including those involving core constitutional rights, are made on a
preponderance standard.44 What separated the forfeiture determinations, according
to Mason, was that the ultimate issue which would otherwise be left to the jury in a
criminal case, alone, often would also trigger forfeiture: did the accused kill the
alleged victim?45 This has sometimes been referred to as "reflexive forfeiture."46

U.S. v. Thevis, 665 F.2d 616, 630-31 (5th Cir. Unit B), cert. denied, 459 U.S. 825
(1982); and People v. Geraci, 649 N.E.2d 817, 821-23 (N.Y. 1995).
40
     H.R. Doc. No. 105-69, 105th Congress, 1st Sess. 13, 23 (1997).
41
     Davis v. Washington, 547 U.S. 813, 833 (2006).
42
    Giles v. California, 128 S.Ct. 2678, 2687 (2008). The concurring opinion by
Justice Souter also implies that a preponderance standard applies. See Giles v.
California, 128 S.Ct. 2678, 2694 (2008) (Souter, J. concurring).
43
    State v. Mason, 160 Wn.2d 910, 926-27 ¶¶29-31, 162 P.3d 396 (Wash. 2007),
cert. denied, 128 S.Ct. 2430 (2008); State v. Fallentine, 149 Wn.App. 614, 620-21
¶¶15-17, 215 P.3d 945, review denied 166 Wn.2d 1028 (2009).
44
     State v. Mason, 160 Wn.2d 910, 926 ¶29, 162 P.3d 396 (Wash. 2007), cert.
denied, 128 S.Ct. 2430 (2008).
45
     Id.


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The Mason court felt that a more exacting standard of proof was needed when the trial
judge in a murder case was, in essence, just pre-judging the crime for which the
defendant was being tried for purposes of making an evidentiary ruling. One cannot
predict whether the Mason court would have ruled differently upon the burden of
proof issue if it had adopted an additional purpose requirement, however, it is now
clear from Giles that forfeiture determinations cannot be based solely upon a judicial
predetermination of guilt, therefore, the rationale for the clear, cogent, and convincing
evidence standard explained in Mason is at least suspect. However, until such time
that the Washington Supreme Court re-examines the proof standard, the clear, cogent,
and convincing evidence standard continues to apply in Washington post-Giles.47
        The clear, cogent, and convincing evidence standard adopted in Washington
means that the prosecution must prove by "highly probable" evidence that (1) a
defendant committed a wrongful act which prevented a witness from testifying, (2)
that the wrongdoing was intended to prevent testimony.48
                a.     Use of circumstantial evidence to prove forfeiture
        New York has adopted a similar proof standard to Washington's, and it has
explained that both direct and circumstantial evidence may be used to prove
forfeiture. The New York Court of Appeals affirmed in People v. Geraci that
circumstantial evidence may suffice to meet the prosecution's burden.49 In Geraci,


46
    State v. Fallentine, 149 Wn.App. 614, 619 ¶15, 215 P.3d 945, review denied 166
Wn.2d 1028 (2009); See generally, Tim Donaldson, Combating Victim/Witness
Intimidation in Family Violence Cases: A Response to Critics of the “Forfeiture by
Wrongdoing” Confrontation Exception Resurrected by the Supreme Court in
Crawford and Davis, 44 IDAHO L. REV. 643, 674 (2008).
47
    State v. Fallentine, 149 Wn.App. 614, 620-21 ¶¶15-17, 215 P.3d 945, review
denied 166 Wn.2d 1028 (2009).
48
   State v. Fallentine, 149 Wn.App. 614, 620 ¶¶16-17, 215 P.3d 945, review denied
166 Wn.2d 1028 (2009).
49
     People v. Geraci, 649 N.E.2d 817, 823 (N.Y. 1995).


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the witness to a murder left the state and recanted his account of the murder.50 The
witness also reported to authorities that the defendant, and others, had both
intimidated and attempted to bribe him.51 The witness later contradicted much of
what he had reported to the authorities and denied having been threatened,52 but the
trial court found that the testimony given by the witness at the forfeiture hearing was
"markedly evasive" and concluded that the circumstantial evidence and the inferences
therefrom established that the defendant had wrongfully procured the unavailability of
the witness.53 On appeal, the court ruled that the trial judge should have used a
"clear and convincing evidence" standard,54 but the court was careful to note that
"[t]his is not to suggest that circumstantial evidence may not be used to establish, in
whole or in part, that a witness's unavailability was procured by the defendant."55
The court explained:

        Circumstantial evidence is not a disfavored form of proof and, in fact, may be
        stronger than direct evidence when it depends upon "undisputed evidentiary
        facts about which human observers are less likely to err * * * or to distort" . . .
        . Further, given the inherently surreptitious nature of witness tampering, the
        proponent of Grand Jury testimony or other hearsay evidence will often have
        nothing more to rely upon than circumstantial proof. In light of the important
        policy considerations at stake, it would be unrealistic and unnecessarily rigid
        to adopt a formula that would make it impossible to establish the necessary


50
     People v. Geraci, 649 N.E.2d 817, 818, 820 (N.Y. 1995).
51
     People v. Geraci, 649 N.E.2d 817, 819-820 (N.Y. 1995).
52
     People v. Geraci, 649 N.E.2d 817, 820 (N.Y. 1995).
53
     People v. Geraci, 649 N.E.2d 817, 820 (N.Y. 1995).
54
     People v. Geraci, 649 N.E.2d 817, 821-23 (N.Y. 1995).
55
     People v. Geraci, 649 N.E.2d 817, 823 (N.Y. 1995).


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        foundation in so many cases.56
The court went on to write that "the cumulative evidence and the inferences that
logically flow therefrom were sufficient...." to support the trial court's application of
forfeiture.57
               b.      Use of hearsay to prove forfeiture
        Courts from New York and other jurisdictions have also ruled that hearsay
may be used at preliminary hearings upon the issue of forfeiture.58

       Because a judge, unlike a jury, can bring considerable experience and
       knowledge to bear on the issue of how much weight to give to the evidence,
       and because preliminary determinations must be made speedily, without
       unnecessary duplication of what is to occur at trial, it is within the judge's
       discretion to admit hearsay evidence that has at least some degree of
       reliability.59
The limited Washington cases to date do not expressly decide the issue, however, the
Court of Appeals in Fallentine upheld a forfeiture determination which was based
primarily on hearsay.60 Support for usage of hearsay in making forfeiture
determinations may be found in Washington Evidence Rule 104(a) which provides in

56
   People v. Geraci, 649 N.E.2d 817, 823 (N.Y. 1995) (citations omitted). See also
People v. Cotto, 699 N.E.2d 394, 398 (N.Y. 1998); People v. Straker, 662 N.Y.S.2d
166, 170-71 (N.Y. Sup. Ct. 1997).
57
     People v. Geraci, 649 N.E.2d 817, 824 (N.Y. 1995).
58
   U.S. v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982); State v. Sheppard, 484
A.2d 1330, 1346-47 (N.J. Super. Ct. Law Div. 1984); People v. Perkins, 691
N.Y.S.2d 273, 274-75 (N.Y. Sup. Ct. 1999).
59
   U.S. v. White, 116 F.3d 903, 914 (D.C. Cir. 1997), cert. denied, 522 U.S. 960
(1997).
60
    State v. Fallentine, 149 Wn.App. 614, 622-23 ¶¶21-26, 215 P.3d 945, review
denied 166 Wn.2d 1028 (2009).


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pertinent part that "[p]reliminary questions concerning . . . the admissibility of
evidence shall be determined by the court, subject to the provisions of subsection (b)
[regarding conditional relevancy]. In making its determination it is not bound by the
Rules of Evidence except those with respect to privileges."61
        3.      Forfeiture of other evidentiary objections
        The U.S. Supreme Court at least implied in Giles, and arguably ruled, that
forfeiture of the Confrontation right by wrongdoing also forfeits hearsay objections
against out-of-court statements made by a missing witness.62 The issue was
mentioned by the Washington Court of Appeals in Fallentine, however, that opinion
noted that the defendant conceded that forfeiture would prohibit hearsay challenges.63
                a.     Hearsay objections
        An argument may be made that wrongful procurement does not necessarily
eliminate hearsay objections,64 but most jurisdictions have held that forfeiture waives
them.65 The Tenth Circuit Court of Appeals held in U.S. v. Balano66 that a defendant

61
     Wash. Evid. R.104(a).
62
     See Giles v. California, 128 S.Ct. 2678, 2686 (2008).
63
   State v. Fallentine, 149 Wn.App. 614, 623-24 n.34, 215 P.3d 945, review denied
166 Wn.2d 1028 (2009).
64
   People v. Giles, 152 P.3d 433, 446-47 (Cal. 2007), vacated Giles v. California,
128 S.Ct. 2678, 2693 (2008). See also People v. Bauder, 712 N.W.2d 506, 513-15
(Mich. App. 2005), appeal denied, 720 N.W.2d 287 (Mich. 2006). See generally
Tim Donaldson, Combating Victim/Witness Intimidation in Family Violence Cases: A
Response to Critics of the “Forfeiture by Wrongdoing” Confrontation Exception
Resurrected by the Supreme Court in Crawford and Davis, 44 IDAHO L. REV. 643,
690-98 (2008).
65
   Commonwealth v. Edwards, 830 N.E.2d 158, 170 n.22 (Mass. 2005) (citations
omitted) (quoting U.S. v. White, 116 F.3d 903, 912 (D.C. Cir.), cert. denied, 522 U.S.
960 (1997)).
66
     618 F.2d 624 (10th Cir. 1979), cert. denied, 449 U.S. 840 (1980), overruled sub

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had waived his confrontation right by engaging in misconduct and, therefore, found it
unnecessary to reach the hearsay issue, writing, "[a] valid waiver of the constitutional
right is a fortiori a valid waiver of an objection under the rules of evidence."67 The
Fourth Circuit similarly recognized in U.S. v. Gray that "[a] defendant who
wrongfully and intentionally renders a declarant unavailable as a witness in any
proceeding forfeits the right to exclude, on hearsay grounds, the declarant's statements
at that proceeding and any subsequent proceeding."68 The Fifth Circuit explained in
U.S. v. Thevis69 that the reason why wrongdoing also waives hearsay objections is that
the Confrontation Clause and the hearsay rules protect the same values.

       Although the Supreme Court explicitly has held that the confrontation clause
       and the hearsay rule are not coterminous, . . ., the Court recently has stated that


silentio on other grounds, Richardson v. U.S., 468 U.S. 317, 325-26 (1984).
67
    U.S. v. Balano, 618 F.2d at 626. Accord U.S. v. Cherry, 217 F.3d 811, 820 (10th
Cir. 2000); U.S. v. Thevis, 665 F.2d 616, 632 (5th Cir. Unit B), cert. denied, 459 U.S.
825 (1982); State v. Corrigan, 691 P.2d 1311, 1314-15 (Kan. App. 1984), review
denied, 237 Kan. 888 (1985). See also U.S. v. Mastrangelo, 693 F.2d 269, 272 (2d
Cir. 1982).
68
    U.S. v. Gray, 405 F.3d 227, 242 (4th Cir. 2005), cert. denied, 546 U.S. 912
(2005). Accord U.S. v. Houlihan, 92 F.3d 1271, 1281-82 (1st Cir. 1996), cert.
denied, 519 U.S. 1118 (1997); U.S. v. Smith, 792 F.2d 441, 442 (4th Cir. 1986), cert.
denied, 479 U.S. 1037 (1987); Devonshire v. U.S., 691 A.2d 165, 169 (D.C. 1997),
cert. denied, 520 U.S. 1247 (1997); State v. Gettings, 769 P.2d 25, 28-29 (Kan.
1989), cert. denied 510 U.S. 847 (1993); People v. Geraci, 649 N.E.2d 817, 821 (N.Y.
1995). See also U.S. v. Thompson, 286 F.3d 950, 961 (7th Cir. 2002), cert. denied,
537 U.S. 1134 (2003). Cf. U.S. v. White, 116 F.3d 903, 912-13 (D.C. Cir.) (holding
that hearsay objections were equitably forfeited), cert. denied, 522 U.S. 960 (1997).
69
   Thevis, 665 F.2d 616 (5th Cir. Unit B) (citations omitted), cert. denied, 459 U.S.
825 (1982).


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        it is a "truism" that both provisions protect the same values.... Both the
        confrontation clause and the hearsay rule seek to balance the need for relevant,
        probative evidence against the defendant's interest in testing the accuracy of
        evidence through personal confrontation and cross-examination.70
 If one protection is forfeited by wrongdoing, it makes sense that the other also
would. "The same equity and policy considerations [justifying forfeiture of
constitutional confrontation] apply with even more force to a rule of evidence without
constitutional weight."71
                b.      Other evidentiary objections
        It appears that courts have extended forfeiture only to hearsay objections. "[A]
waiver of confrontation rights does not result in the automatic surrender of all
evidentiary objections."72 Therefore, relevancy, competency and other objections
might still be available to a defendant even though the defendant wrongfully
prevented a witness from testifying.
        4.      Procedure
        Washington Courts have yet to flesh out a procedure for making forfeiture
determinations. However, an appellate division for the New York state courts,
established a hearing procedure for forfeiture determinations in Holtzman v.
Hellenbrand.73 That case held that trial courts should conduct an evidentiary hearing
to determine whether a defendant has lost his or her Confrontation right by


70
     Thevis, 665 F.2d at 632; see also Houlihan, 92 F.3d at 1281.
71
     White, 116 F.3d at 913.
72
   U.S. v. Houlihan, 92 F.3d 1271, 1282 n.6 (1st Cir. 1996), cert. denied, 519 U.S.
1118 (1997). See also U.S. v. Miller, 116 F.3d 641, 668 (2d Cir. 1997), cert. denied,
524 U.S. 905 (1998); U.S. v. Thai, 29 F.3d 785, 814 (2d Cir.), cert. denied, 513 U.S.
977 (1994); U.S. v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992); Thevis, 665 F.2d at 633
n.17. Cf. U.S. v. Dhinsa, 243 F.3d 635, 655 (2d Cir. 2001), cert. denied, 534 U.S.
897 (2001).
73
     Holtzman v. Hellenbrand, 460 N.Y.S.2d 591 (N.Y. App. Div. 1983).


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wrongdoing "whenever the People allege specific facts which demonstrate a 'distinct
possibility' . . . that a criminal defendant’s misconduct has induced a witness' unlawful
refusal to testify at trial or has caused the witness' disappearance or demise."74 Such
proceedings have subsequently been referred to by New York courts as Sirois
hearings.75
        The Washington Court of Appeals has held that a pre-trial motion may
appropriately be used to determine the admissibility of hearsay testimony.76
However, Washington Court rules do not clearly specify whether an evidentiary
hearing for forfeiture determinations is required in District or Municipal courts.
Superior Courts utilize an omnibus hearing procedure which may suffice,77 and the
procedure expressly authorizes a trial court to continue consideration of omnibus
matters for an evidentiary hearing.78 However, the procedure in Courts of Limited
Jurisdiction is less defined.79
        Washington evidence rules provides an opportunity for parties to make an
adequate record on evidence rulings but they dictate only limited aspects of
procedure.80 Washington Evidence Rule 103(c) provides in jury cases that

74
   Holtzman v. Hellenbrand, 460 N.Y.S.2d 591, 597 (N.Y. App. Div. 1983) (citation
omitted).
75
    E.g., People v. Byrd, 855 N.Y.S. 2d 505, 507 (N.Y. App. Div. 2008) (Both the
defendant and witness in the matter from which the Holtzman case arose were named
Sirois. Holtzman v. Hellenbrand, 460 N.Y.S.2d 591, 592-593 (N.Y. App. Div. 1983)).
76
    Young v. Key Pharmaceuticals, 63 Wn.App. 427, 432, 819 P.2d 814 (1991),
review denied 118 Wn.2d 1023 (1992).
77
     See Wash. CrR 4.5(c)(iv) & (d).
78
     See Wash. CrR 4.5(e).
79
     See Wash. CrRLJ 4.5.
80
     See Wash. Evid. R. 103(a)(2).


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proceedings regarding the admissibility of evidence shall be conducted to the extent
practicable outside of the presence of a jury.81 Washington Evidence Rule 103(b)
authorizes, but does not require, trial courts to direct that proof be made in a question
and answer form.82 Case law expresses a preference for a question and answer
format.

        An offer of proof should "inform the court of the legal theory under which the
        offered evidence is admissible ... inform the trial judge of the specific nature
        of the offered evidence so the court can judge its admissibility ... [and create] a
        record adequate for appellate review." .... Question and answer testimony by
        the witness is preferable to conclusory statements by counsel.83
        Better practice dictates that some sort of evidentiary hearing be conducted to
make forfeiture determinations. However, the Washington Court of Appeals
recognized in an analogous situation in State v. Sims: "when conducting a hearing on
a motion to suppress evidence, the trial court may hear the matter entirely on
affidavits, or has discretion to consider oral testimony in addition to, or in lieu of,
affidavits."84 Consequently, questions regarding the type of hearing required for
forfeiture determinations remains unresolved.
B.      Material Witness Warrants & Forfeiture by Wrongdoing
        The federal codification of the wrongdoing exception by Federal Evidence
Rule 804(b)(6) includes an unavailability requirement.85 The issue was not
addressed in Mason, because the missing witness was presumed dead (and obviously

81
     Wash. Evid. R. 103(c).
82
     Wash. Evid. R. 103(b).
83
   State v. Negrin, 37 Wn.App. 516, 525, 681 P.2d 1287 (1984). See also Mad
River Orchard Inc. v. Krack Corp., 89 Wn.2d 535, 537, 573 P.2d 796 (1978).
84
   State v. Sims, 10 Wn.App. 75, 77, 516 P.2d 1088 (1973), review denied 83 Wn.2d
1007 (1974).
85
     FED. R. EVID. 804(a) & (b).


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unavailable).86 The application of the wrongdoing rule was upheld in Fallentine
based upon a witness's refusal to testify, but, persistent refusal to testify constitutes
unavailability by rule,87 and the Court's opinion does not thoroughly discuss the
unavailability issue.88 However, cases have begun to emerge in other jurisdictions
which refuse application of the forfeiture by wrongdoing rule unless the prosecution
sufficiently establishes witness unavailability.89
        Washington's hearsay rules contain some exceptions in ER 804 which depend
upon unavailability.90      The Washington's hearsay rules contain many other
exceptions in ER 803, such as the excited utterance exception, in which the
availability of the hearsay declarant is immaterial.91 Crawford generally retained an
unavailability requirement when testimonial hearsay is involved.92 However, it left
development of hearsay rules for non-testimonial hearsay to the states,93 and Davis
clarified that non-testimonial hearsay does not implicate the federal Confrontation




86
   State v. Mason, 160 Wn.2d 910, 916 ¶4, 162 P.3d 396 (Wash. 2007), cert. denied,
128 S.Ct. 2430 (2008).
87
     Wash. ER 804(a)(1).
88
   See State v. Fallentine, 149 Wn.App. 614, 620-23 ¶¶19-23, 215 P.3d 945, review
denied 166 Wn.2d 1028 (2009).
89
     E.g., State v. Cox, ___ N.W.2d ___, 2010 WL 985738 (Minn. 2010).
90
     Wash. Evid. R. 804.
91
     Wash. Evid. R. 803.
92
     Crawford v. Washington, 541 U.S. 36, 68 (2004).
93
     Id.


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Clause.94 Therefore, while it appears certain that the federal Confrontation Clause
requires unavailability for introduction of testimonial hearsay and does not require
unavailability for introduction of non-testimonial hearsay under ER 803, it has not yet
been fully resolved whether the Washington State Constitution imposes such a
requirement.
        The Washington Supreme Court held that the state Confrontation Clause in
Article I, section 22 of the Washington State Constitution demands separate analysis
from the federal Confrontation Clause.95 It rejected argument in State v. Pugh that
Article I, section 22 always demands a showing of unavailability, however, the scope
of that ruling is unclear because the Court emphasized the historic pedigree of the
particular res gestae exception at issue in that case and did not make a blanket
constitutional ruling.96
        Therefore, unavailability must still be shown when testimonial hearsay is
concerned, it must still be shown by rule before using ER 804 hearsay, but the extent
to which unavailability must be shown remains an open question when
non-testimonial ER 803 hearsay is involved. Unavailability is defined by ER 804 as
follows:

        "Unavailability as a witness" includes situations in which the declarant:
        (1) Is exempted by ruling of the court on the ground of privilege from
        testifying concerning the subject matter of the declarant's statement; or
        (2) Persists in refusing to testify concerning the subject matter of the
        declarant's statement despite an order of the court to do so; or
        (3) Testifies to a lack of memory of the subject matter of the declarant's

94
   Davis v. Washington, 547 U.S. 813, 821 (2006); State v. Pugh, 167 Wn.2d 825,
831 ¶8, 225 P.3d 892 (2009); State v. Alvarez-Abrego, 154 Wn.App. 351, 362-63,
225 P.3d 396 (2010).
95
   State v. Shafer, 156 Wn.2d 381, 391-92 ¶¶20-21, 128 P.3d 87 (2006), cert. denied
549 U.S. 1019 (2006).
96
     State v. Pugh, 167 Wn.2d 825, 844-45 ¶¶42-43, 225 P.3d 892 (2009).


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         statement; or
         (4) Is unable to be present or to testify at the hearing because of death or then
         existing physical or mental illness or infirmity; or
         (5) Is absent from the hearing and the proponent of the statement has been
         unable to procure the declarant's attendance (or in the case of a hearsay
         exception under subsection (b)(2), (3), or (4), the declarant's attendance or
         testimony) by process or other reasonable means.
         (6) A declarant is not unavailable as a witness if the exemption, refusal, claim
         of lack of memory, inability, or absence is due to the procurement or
         wrongdoing of the proponent of a statement for the purpose of preventing the
         witness from attending or testifying.97
More importantly, "[u]navailability in the constitutional sense additionally requires
the prosecutor to make a good faith effort to obtain the witness' presence at trial."98
         Washington cases have repeatedly held that "[a] witness may not be deemed
unavailable unless the prosecution has made a good faith effort to obtain the witness'
presence at trial."99 The prosecution is not required to perform a futile act, but it
must demonstrate that reasonable means were used to secure attendance of a witness,
and such means may require utilization of available procedures to produce a witness
for trial before the witness may be considered unavailable.100
         The Court of Appeals has described issuance of a material witness warrant as
"a drastic step,"101 but it remains a means by which witnesses may be produced.
CrRLJ 4.10 authorizes issuance of material witness warrants. It provides:

97
      Wash. Evid. R. 804(a).
98
      State v. Ryan, 103 Wn.2d 165, 171, 691 P.2d 197 (1984).
99
      E.g., State v. Ryan, 103 Wn.2d 165, 170, 691 P.2d 197 (1984).
100
    State v. Smith, 148 Wn.2d 122, 132-33, 59 P.3d 74 (2002); State v. Rivera, 51
Wn.App. 556, 558-61, 754 P.2d 701 (1988); State v. Goddard, 38 Wn.App. 509,
511-13, 685 P.2d 674 (1984).
101
      State v. Hartley, 51 Wn.App. 442, 446, 754 P.2d 131(1988).


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        CrRLJ 4.10. Material Witness
        (a) Warrant. On motion of the prosecuting authority or the defendant, the
        court may issue a warrant, subject to reasonable bail, for the arrest of a
        material witness. The warrant shall issue only on a showing, by affidavit or on
        the record in open court, that the testimony of the witness is material and that
        (1) The witness has refused to submit to a deposition ordered by the court
        pursuant to rule 4.6; or
        (2) The witness has refused to obey a lawfully issued subpoena; or
        (3) It may become impracticable to secure the presence of the witness by
        subpoena.
        Unless otherwise ordered by the court, the warrant shall be executed and
        returned as in rule 2.2.
        (b) Hearing. After the arrest of the witness, the court shall hold a hearing no
        later than the next court day after the witness is present in the county from
        which the warrant issued. The witness shall be entitled to be represented by a
        lawyer. The court shall appoint a lawyer for an indigent witness if it is
        required to protect the rights of the witness.
        (c) Release/Detention. Upon a determination that the testimony of the
        witness is material and that one of the conditions set forth in section (a) exists,
        the court shall set conditions for release of the witness pursuant to rule 3.2. A
        material witness shall be released unless the court determines that the
        testimony of such witness cannot be secured adequately by deposition and that
        further detention is necessary to prevent a failure of justice. Release of a
        material witness may be delayed for a reasonable period of time until the
        deposition of the witness can be taken pursuant to rule 4.6.
        In State v. Desantiago, the Washington Supreme Court rejected argument that
the State must utilize the Uniform Act for securing out-of-state witnesses before such
a witness could be considered unavailable.102 The Desantiago court held that resort
to the Act might sometimes be required to show good faith efforts, but that it is only


102
      State v. Desantiago, 149 Wn.2d 402, 412-13, 68 P.3d 1065 (2003).


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applicable when the prosecutor knows the location of the witness.103 The Supreme
Court commented in State v. Hacheney that "[t]he length to which the prosecution
must go to procure a witness's presence is a question of reasonableness."104
        The Supreme Court recognized in Mason that the wrongdoing rule is
essentially equitable and designed to prevent a defendant from benefitting from his or
her own wrongdoing.105 It seems unreasonable to require service of warrants on
witnesses with whom the defendant has tampered, but it is likely that the court would
look at whether or not the prosecution must utilize CrRLJ 4.10 as a prerequisite to
asserting forfeiture on a case-by-case basis. In Hacheney, the court confirmed that
"[t]he question of unavailability is 'one of fact to be determined by the trial judge,' ....
Because the trial court is in the best position to evaluate witness unavailability, we do
not easily overturn a trial court's factual unavailability determination."106
        This author is not a proponent of material witness warrants in misdemeanor
domestic violence cases. Such cases are rife with witness tampering, but also often
result in little or no jail time served by convicted offenders. Use of material witness
warrants in such cases can have a chilling effect upon the willingness of a victim
coming forward in the future, and send the wrong message if a reluctant
victim/witness ends up spending more time in jail than the offender. Therefore,
prosecutors are encouraged to carefully consider whether or not material warrants
should issue even if their usage is ruled to be a prerequisite to asserting forfeiture.




103
      Id.
104
    State v. Hacheney, 160 Wn.2d 503, 521, 158 P.3d 1152 (2007), cert. denied 552
U.S. 1148 (2007).
105
     State v. Mason, 160 Wn.2d 910, 924-25 ¶¶22-26, 162 P.3d 396 (Wash. 2007),
cert. denied, 128 S.Ct. 2430 (2008).
106
    State v. Hacheney, 160 Wn.2d 503, 521-22, 158 P.3d 1152 (2007), cert. denied
552 U.S. 1148 (2007).


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