Washington State court rule CrRLJ 2.1(c)-Citizens Criminal complaint process

[jamessr]

This is for those interested in filing a citizens criminal complaint for any misdemeanor or gross misdemeanor a prosecutor refuses to file or you want to file against any LEO for committing against any citizen.(immunity does not apply to LEO for criminal violations of law)


(c) Citizen Complaints. Any person wishing to institute a criminal action
alleging a misdemeanor or gross misdemeanor shall appear before a judge
empowered to commit persons charged with offenses against the State, other than
a judge pro tem. The judge may require the appearance to be made on the
record, and under oath. The judge may consider any allegations on the basis of
an affidavit sworn to before the judge. The court may also grant an opportunity
at said hearing for evidence to be given by the county prosecuting attorney or
deputy, the potential defendant or attorney of record, law enforcement or other
potential witnesses. The court may also require the presence of other
potential witnesses.

In addition to probable cause, the court may consider:

(1) Whether an unsuccessful prosecution will subject the State to costs or
damage claims under RCW 9A.16.110, or other civil proceedings;

(2) Whether the complainant has adequate recourse under laws governing
small claims suits, anti-harassment petitions or other civil actions;

(3) Whether a criminal investigation is pending;

(4) Whether other criminal charges could be disrupted by allowing the
citizen complaint to be filed;

(5) The availability of witnesses at trial;

(6) The criminal record of the complainant, potential defendant and
potential witnesses, and whether any have been convicted of crimes of
dishonesty as defined by ER 609; and

(7) Prosecution standards under RCW 9.94A.440.
If the judge is satisfied that probable cause exists, and factors (1) through (7)
justify filing charges, and that the complaining witness is aware of the
gravity of initiating a criminal complaint, of the necessity of a court
appearance or appearances for himself or herself and witnesses, of the possible
liability for false arrest and of the consequences of perjury, the judge may
authorize the citizen to sign and file a complaint in the form prescribed in
CrRLJ 2.1(a). The affidavit may be in substantially the following form:


THE STATE OF WASHINGTON )
) ss. No. ________
COUNTY OF _________________)

AFFIDAVIT OF COMPLAINING WITNESS

DEFENDANT:

Name ____________________________ Name ____________________________
Address _________________________ Address _________________________
Phone ___________ Bus. __________ Phone ___________ Bus. __________

WITNESSES:

Name ____________________________ Name ____________________________
Address _________________________ Address _________________________
Phone ___________ Bus. __________ Phone ___________ Bus. __________

Name ____________________________ Name ____________________________
Address _________________________ Address _________________________
Phone ___________ Bus. __________ Phone ___________ Bus. __________


I, the undersigned complainant, understand that I have the choice of
complaining to a prosecuting authority rather than signing this affidavit. I
elect to use this method to start criminal proceedings. I understand that the
following are some but not all of the consequences of my signing a criminal
complaint: (1) the defendant may be arrested and placed in custody; (2) the
arrest if proved false may result in a lawsuit against me; (3) if I have sworn
falsely I may be prosecuted for perjury; (4) this charge will be prosecuted
even though I might later change my mind; (5) witnesses and complainant will be
required to appear in court on the trial date regardless of inconvenience,
school, job, etc.

Following is a true statement of the events that led to filing this charge.
I (have)(have not) consulted with a prosecuting authority concerning this incident.


On the ____ day of ___________, 19__, at _______________________.
(location)
__________________________________________________ ___________________

Signed _______________________________

SUBSCRIBED AND SWORN TO before me this ____ day of ___________, 19__.

______________________________________
Judge

(d) Filing.

(1) Original. The original of the complaint or citation and notice shall be
filed with the clerk of the court.

(2) Time. The citation and notice shall be filed with the clerk of the
court within two days after issuance, not including Saturdays, Sundays or
holidays. A citation and notice not filed within the time limits of this rule
may be dismissed without prejudice.


[Amended effective March 18, 1994; July 2, 1996; September 1, 1999;
November 21, 2006; May 6, 2008.]

Read more here: Washington State Courts: Court Rules (http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=clj&set=CrRLJ&ruleid=cljcrrlj2.1)

[jamessr]

I have often wondered if the guidelines point to any prosecutor should not prosecute when it is contrary to the intent of the legislature and a de minimus violation, why so many prosecutors completely ignore the decision not to prosecute. It comes to mind that the Hobbs act would come into play at this point. 18USCS 1341,1343 & 1346:thumbsup:


RCW 9.94A.411
Evidentiary sufficiency.


(1) Decision not to prosecute.

STANDARD: A prosecuting attorney may decline to prosecute, even though technically sufficient evidence to prosecute exists, in situations where prosecution would serve no public purpose, would defeat the underlying purpose of the law in question or would result in decreased respect for the law.

GUIDELINE/COMMENTARY:

Examples

The following are examples of reasons not to prosecute which could satisfy the standard.

(a) Contrary to Legislative Intent - It may be proper to decline to charge where the application of criminal sanctions would be clearly contrary to the intent of the legislature in enacting the particular statute.

(b) Antiquated Statute - It may be proper to decline to charge where the statute in question is antiquated in that:

(i) It has not been enforced for many years; and

(ii) Most members of society act as if it were no longer in existence; and

(iii) It serves no deterrent or protective purpose in today's society; and

(iv) The statute has not been recently reconsidered by the legislature.

This reason is not to be construed as the basis for declining cases because the law in question is unpopular or because it is difficult to enforce.

(c) De Minimis Violation - It may be proper to decline to charge where the violation of law is only technical or insubstantial and where no public interest or deterrent purpose would be served by prosecution.

(d) Confinement on Other Charges - It may be proper to decline to charge because the accused has been sentenced on another charge to a lengthy period of confinement; and

(i) Conviction of the new offense would not merit any additional direct or collateral punishment;

(ii) The new offense is either a misdemeanor or a felony which is not particularly aggravated; and

(iii) Conviction of the new offense would not serve any significant deterrent purpose.

(e) Pending Conviction on Another Charge - It may be proper to decline to charge because the accused is facing a pending prosecution in the same or another county; and

(i) Conviction of the new offense would not merit any additional direct or collateral punishment;

(ii) Conviction in the pending prosecution is imminent;

(iii) The new offense is either a misdemeanor or a felony which is not particularly aggravated; and

(iv) Conviction of the new offense would not serve any significant deterrent purpose.

(f) High Disproportionate Cost of Prosecution - It may be proper to decline to charge where the cost of locating or transporting, or the burden on, prosecution witnesses is highly disproportionate to the importance of prosecuting the offense in question. This reason should be limited to minor cases and should not be relied upon in serious cases.

(g) Improper Motives of Complainant - It may be proper to decline charges because the motives of the complainant are improper and prosecution would serve no public purpose, would defeat the underlying purpose of the law in question or would result in decreased respect for the law.

(h) Immunity - It may be proper to decline to charge where immunity is to be given to an accused in order to prosecute another where the accused's information or testimony will reasonably lead to the conviction of others who are responsible for more serious criminal conduct or who represent a greater danger to the public interest.

(i) Victim Request - It may be proper to decline to charge because the victim requests that no criminal charges be filed and the case involves the following crimes or situations:

(i) Assault cases where the victim has suffered little or no injury;

(ii) Crimes against property, not involving violence, where no major loss was suffered;

(iii) Where doing so would not jeopardize the safety of society.

Care should be taken to insure that the victim's request is freely made and is not the product of threats or pressure by the accused.

The presence of these factors may also justify the decision to dismiss a prosecution which has been commenced.

Notification

The prosecutor is encouraged to notify the victim, when practical, and the law enforcement personnel, of the decision not to prosecute.

(2) Decision to prosecute.

(a) STANDARD:

Crimes against persons will be filed if sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify conviction by a reasonable and objective fact finder. With regard to offenses prohibited by RCW 9A.44.040, 9A.44.050, 9A.44.073, 9A.44.076, 9A.44.079, 9A.44.083, 9A.44.086, 9A.44.089, and 9A.64.020 the prosecutor should avoid prefiling agreements or diversions intended to place the accused in a program of treatment or counseling, so that treatment, if determined to be beneficial, can be provided pursuant to RCW 9.94A.670.

Crimes against property/other crimes will be filed if the admissible evidence is of such convincing force as to make it probable that a reasonable and objective fact finder would convict after hearing all the admissible evidence and the most plausible defense that could be raised.

Notes:
Intent -- 2007 c 371: "The legislature intends to clarify the law on medical marijuana so that the lawful use of this substance is not impaired and medical practitioners are able to exercise their best professional judgment in the delivery of medical treatment, qualifying patients may fully participate in the medical use of marijuana, and designated providers may assist patients in the manner provided by this act without fear of state criminal prosecution. This act is also intended to provide clarification to law enforcement and to all participants in the judicial system." [2007 c 371 § 1.]