Just The Facts

By Henry W. Wiggins, III; April 1999

     Criminal Rules for Courts of Limited Jurisdiction (CrRLJ) 6.1.2 provides for a procedure by which a defendant, in a criminal case, with the agreement of the prosecuting authority, may proceed by way of a trial by the court. A common procedure is the trial by stipulation or submittal.

    CrRLJ 6.1.2(b) sets out the submittal procedure and provides a form on which the defendant acknowledges a waiver of rights and an understanding of what the procedure entails.

     CrRJL 6.1.2(b) states:

A defendant, with the approval of the prosecuting authority, may submit his or her case upon the police report and other materials by stipulating to the admissibility thereof in lieu of testimony.

     In pertinent part, the form set forth in the rule to utilize this procedure, elicits the following statements from the defendant:

I am the defendant in this case.

I understand…that the judge will read the police report and other materials and, based upon that evidence, the judge will decide if I am guilty… .

I understand that, by this process, I am giving up the constitutional right to a jury trial, the right to hear and question witnesses, the right to call witnesses in my own behalf, and the right to testify or not to testify.

     For practitioners who represent defendants in courts of limited jurisdictions on misdemeanor or gross misdemeanor charges, regardless of your level of experience, it is always important to consider the nuances of this procedure, to further the interest of your client and to preserve your client’s rights.

     A stipulation to facts is not the equivalent of a guilty plea and need not be knowingly and voluntarily made, State v. Johnson, 104 Wn.2d 338, 705 P.2d 773 (1985). Thus, despite the language in the form, Statement of Defendant on Submittal or Stipulation to Facts, which purports to indicate that a criminal defendant, proceeding by stipulation, understands, inter alia, that he or she is giving up constitutional rights, the Washington Supreme Court has sided against individual constitutional rights. The court has stripped criminal defendants who proceed by way of stipulation of the ability to rescind their agreement, even if the agreement was not knowingly or voluntarily made. Compare CrRLJ 4.2(d). This means that we must insure that our clients truly understand all aspects of this procedure.

     The common definition of stipulate is to specify as a condition of an agreement or to make an express demand or provision in an agreement. To stipulate to the police reports and other materials, is a concession by the defendant, that the judge will determine guilt or innocence solely on the evidence provided.

     It is our duty to review all of the information the prosecution seeks to submit to the court for sufficiency of proof and admissibility. It is also our duty to review all of the information with our clients to determine if they actually agree to allow the court to consider the contents.

     Criminal defense attorneys, and more importantly our clients, need not agree to an all encompassing one sided stipulation. For example, a stipulation can and should, if agreed to, include favorable submissions by the defendant. Such information could include background information or personal history. It could also include statements or facts supporting a defense, such as, accident, mistake or self-defense. At the least a defendant should also firmly state a denial of guilt. While a plea of not guilty has necessarily been previously entered, during the haste of a misdemeanor calendar, prosecutors and sometimes judges, seem to gloss over this important fact.

     Also, the police report or other materials need not be stipulated to in their entirety . While theoretically courts are to consider admissible evidence only, it may be wise to strike what you believe to be inadmissible, speculative, prejudicial, or otherwise damaging evidence. Of course, the prosecutor must agree, but it is still important to attempt to neutralize the evidence submitted. Without witnesses or cross examination, this is your only chance to influence the submitted record.

     Do not forget to impress upon the court the presumption of innocence that is guaranteed to your client. In a stipulated facts trial, the judge still must determine your client’s guilt or innocence. State v. Johnson, supra. Guilt must be proven beyond a reasonable doubt as to every essential element. Be prepared to give the equivalent of a closing argument so that you can elucidate upon the weaknesses of the case against your client.

     Finally, make sure that the court adheres to its duty to make findings of fact and conclusions of law to support its decision. See CrRLJ 6.1.2(a). As best you can, attempt to persuade the court to state findings to support every essential element of the crime charged. Because a defendant does not waive the right to appeal, the findings and conclusions are necessary to allow effective review. See RALJ 5.2(b). Additionally, all available pre-trial motions should be filed. They may be dispositive or at least preserved for appeal as well.

     It has been said that it is better to have tried and lost than to have not tried at all. Although a stipulation to facts under CrRLJ 6.1.2 does not involve a jury, it is still a trial to the court. Make all diligent efforts to “try”  your case within the framework of the rule and the procedure.

     With the multitude of misdemeanor filings, prosecuting authorities often fail to adequately analyze the facts upon which they are willing to stipulate. It is our job to do so. Let’s prevent it from being a foregone conclusion that a stipulation to the facts is another, less protected means, for our clients to be found guilty.

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