Category Archives: Uncategorized

Why Aren’t Collector License Plate Infractions Enforced?

Are drivers getting a sweet deal with Nevada's classic vehicle license plates? | KRNV

Why don’t police strictly enforce Collector License Plate infractions? Is this a no-priority enforcement situation? Doug Dahl of Target Zero gives answers in a recent news article.

Under Washington law, collector vehicle license plates cannot be used for regular transportation, commercial purpose or carrying a load. The law allows vehicles that are at least 30 years old and in good running condition to be licensed as collector vehicles. The upside of registering your car as a classic is that collector vehicle plates are valid for the life of the vehicle. You never have to pay for your tabs again.

The tradeoff is that a collector vehicle has limitations. The law states that they “may only be used for participation in club activities, exhibitions, tours, parades, and occasional pleasure driving.”

You might think lots of people would be tempted to register their cars as collectible, but time and wear makes this a somewhat self-enforcing law. Your old college car is most likely no longer on the road. The few cars that last that long usually do because they’re actually worth keeping.

I’ve asked a lot of cops why they got into the job, and so far none of them have said it was because they wanted to collect taxes. That doesn’t mean there’s no enforcement of registration laws, but it’s understandably less than some other violations. As far as I know, misuse of a collector plate has never been listed as contributing to a traffic collision.

“Given the limited policing resources, it makes sense to focus enforcement efforts on the highest-risk behaviors. No one likes getting a speeding ticket, but the most current research confirms that traffic enforcement that targets dangerous behaviors does save lives. There are laws we want enforced because it annoys us that someone is getting away with something, and there are laws we want enforced to intervene in high-risk driving behaviors. I know what I’d pick.” ~Doug Dahl, a Target Zero Manager Communications Lead,

Mr Dahl lists the top four factors in fatal crashes in our state along with the percentage of crashes they’re involved in:

Impairment (56%).

Speeding (31%).

No Seat Belt Use (23%).

Distracted Driving (20%).

Dahl adds that while enforcement decisions shouldn’t be made based on what’s easiest, in this case it works. Impairment, speed, distraction and seat belt use are all clearly observable behaviors. However, if an officer sees a collector plate at a grocery store or campground, who’s to say that isn’t occasional pleasure use?

Please contact my office if you, a friend or family member are charged with DUI or any other vehicular crimes. Hiring an effective and competent defense attorney is the first and best step toward justice.

America’s Shortage of Criminal Defense Attorneys

The State Of Public Defenders Workload: Can AI Fix The People Gap?

According to the Guardian, America’s public defenders are overworked and underfunded. The situation has reached crisis levels in some states.

The Downward Spiral of Public Defense Since Gideon v. Wainright.

In 1963, the landmark Gideon v Wainwright  U.S. supreme court ruling gave indigent criminal defendants who cannot afford to pay for a lawyer, access to legal counsel.

Unfortunately, over the last 50 years, the legal system has failed to live up to Gideon. Criminal cases have piled up. The Guardian article stated how 53 years on, the rate of incarceration across the country has more than quadrupled compared to 1963 and the vast majority of defendants are indigent. The system is at crisis point. The cornerstone principles of the justice system have been eroded to the breaking point.

In recent years the US has begun to reckon with its role as the world’s biggest jailer. It manifests unequal justice system that disproportionately punishes poor people of color. In diagnosing the causes of this problem much of the focus has centered on sentencing reform. But in a country where 95% of criminal cases are settled by plea deal, little attention has been given to the critical state of indigent defense. Around the US, defenders routinely report an increase in overburdening and underfunding, caused by a variety of structural, political and economic drivers.

The Problem is Nationwide.

How bad is the picture around the country? Frustratingly, the scale of the problem remains unknown as dozens of states and jurisdictions produce no reliable data at all on the condition of their public defense systems.

As the Innocence Project reports, Public Defenders’ caseloads in some US states include about 80 to 100 cases per week. That’s about 400 cases per month or more than 4500 cases per year. That’s an impossible schedule to fulfill, no matter how dedicated legal workers are.

The last nationwide survey of public defender offices was carried out almost 10 years ago by the Department of Justice’s bureau of justice statistics (BJS). The findings were stark: 73% of county-operated defender systems, utilized in 27 states, were functioning above the maximum recommended caseload level.

In the 22 state centralized defender programs, 15 ran on caseload levels that exceeded the recommended case limit. In a world of meagre measurement and inadequate oversight, many argue the findings were a significant underestimate of the nationwide strain on the system.

The underfunding of public defenders threatens very grave consequences for the justice system in Texas and elsewhere. We hear about people who have been charged with minor crimes remaining in jail because they are poor. Harris County Jail in Texas has one of the worst records in this regard. Often public defenders are too busy to give these cases the time they merit.

My opinion? Obviously, cash-poor defendants are falling through the cracks. They are languishing in jails when they should have been released. Or their court-appointed attorney is not giving their cases the time and attention they deserve.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Low-Level Robbery Won’t Get A Reduced Sentence

Why Grocery Stores are adding Supplemental Security during the Coronavirus Outbreak | CITIGUARD

In State v. Thomason, the WA Supreme Court held that the low-level, de minimis nature of some crimes can allow for an exceptional downward sentence. However, the minimal level of force used to prove Robbery makes it inappropriate to allow a downward sentence.


On September 5, 2018, Thomason entered Yoke’s Fresh Market grocery store in Spokane.  A plainclothes security guard, Mr. Swartz, followed Thomason around the store. Swartz watched Thomason pick up about $15 worth of meat and cheese. Thomason proceeded to another part of the store and tucked the food down his pants. Thomason then left the store without paying.

Swartz followed Thomason out and confronted him. Swartz grabbed Thomason’s arm, displayed his badge, and asked Thomason to go back inside the store. Thomason tried to pull free, and Swartz warned him that he was only making the situation worse. The two pulled at each other back and forth as Swartz tried to detain Thomason and Thomason tried to break free.

During this exchange, Thomason swung at Swartz two times. Thomason used a closed fist, aimed at Swartz’s face both times, and hit Swartz the second time with a glancing blow. Swartz yelled at his partner, a guard in training, to help. Thomason punched Swartz a third time. Swartz testified that the third punch “hurt” and caused a minor injury. His face was sore and slightly red for a day or two. Thomason escaped by pulling out of his sweatshirt and running. He was seen getting into a passenger car and was eventually apprehended.

The State charged Thomason with second degree robbery just before trial. A jury convicted him as charged.


At sentencing, the parties agreed that Thomason’s offender score was 10. That made his standard sentencing range 63-84 months. Thomason requested a 12-month sentence. This was a exceptional downward departure from his sentencing range.

The trial court judge considered an exceptional sentence below the standard range. The judge said that the crime was no more than a “glorified shoplifting charge” that should have been treated as a misdemeanor. Nevetheless, the judge determined that the law barred him from imposing an exceptional downward sentence. The judge imposed 63 months, the bottom of the standard range, instead.

Thomason appealed on several grounds. However, the Court of Appeals affirmed his conviction. The WA Supreme Court granted appellate review solely on the exceptional sentence issue.


The Court reasoned that Washington’s Sentencing Reform Act lists mitigating circumstances that can support an exceptional sentence below the standard range. It explained that in appropriate cases, the de minimis nature of a crime can support an exceptional sentence below the standard range. An appropriate case is one in which (1) the legislature did not consider the mitigating factor already when it listed the elements of the crime or set the standard sentence range and (2) the factor constitutes a substantial and compelling reason to depart below the range.”

The Court acknowledged Thomason’s argument that his crime was de minimis. The value of the items taken was low and no force was used to accomplish the taking. Although force was used to retain the property, it was “minor” force. However, the court disagreed with Thomasan’s argument that he was allowed an exceptional downward sentence.

The Court reasoned that the plain language of the robbery statute shows that the legislature did consider a defendant’s minimal use of force when it defined the crime of second degree robbery.

“As the emphasized language shows, the legislature clearly considered whether the crime of second degree robbery should punish a taking combined with a minimal showing of force. It criminalized a taking in which either ‘force’ ‘or’ no force at all—just ‘fear’—is used to accomplish the taking . . . The legislature even said that where, as here, such force or fear is used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking, the degree of force is immaterial.”~WA Supreme Court

With that, the WA Supreme Court affirmed Mr. Thomason’s conviction.

My opinion? I agree with Chief Justice Steven Gonzalez’s concurring opinion. He wrote separately because he was increasingly troubled by our controlling, unchallenged precedents and the sentencing laws they interpret.

“Washington’s sentencing guidelines suggest, among other things, that unconstrained discretion in sentencing operates to favor whites and disfavor members of minority groups,” said Justice Gonzalez. As part of the concurrence, he references an article about prosecutorial discretion and sentencing guidelines. He ended his opinion with choice parting words:

“We must find a way to live justly with one another. We must not steal from each other or strike each other. But when it happens, the State must not respond with a disproportionate punishment. I am increasingly concerned that sentences like this for what amounts to glorified shoplifting are simply not just and speak to deep problems with our sentencing systems.” ~Chief Justice Steven C. Gonzalez, WA Supreme Court.

Please contact my office if you, a friend or family member are charged with Robbery or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Lawsuit: Washington State Patrol Misused Breathalyzer Tests, Misconstrued Readings

Datto Lawsuit: Ex-Employee Took Trade Secrets to ConnectWise

A recently filed lawsuit claims that the Washington State Patrol official responsible for ensuring the consistency and reliability of breath-test machines violated the rights of drunk driving suspects who later had their licenses revoked.

I discussed this in an earlier blog where a panel of District Court judges had already found breath machine results inadmissible in all Kitsap County cases. The four District Court judges tossed the breath machine results in all drunken-driving cases before the court. The judges also found that Fiona Couper, the WA State Patrol Forensics Lab, “submitted false or misleading testimony by declaration in tens of thousands of cases.” About 81,000 people were tested over the past decade.


The lawsuit was filed by David LaCross on behalf of plaintiff Nicholas Kori Solis, 29, of Bremerton. The respondent is Ms. Couper. The lawsuit claims that Ms. Couper filed false statements vouching for the legality of the machines and “deprived the plaintiff of due process.”

The lawsuit specifically criticizes Washington’s procedures for revoking drunk driving suspects’ licenses. This process is administrative, not criminal, and the breath test results are admitted to prove the driver was impaired to allow the state to revoke their driver’s license. The lawsuit seeks an unspecified amount of money for damages, among other remedies.


Mr. Solis was arrested March 19 by a State Patrol trooper who observed him driving 88 mph on Highway 3. In addition to signs of impairment, the trooper tested Solis using the Dräger breath test machine. The machine found Solis had a blood alcohol content reading of about .10. Solis was charged with DUI in Kitsap County District Court. He pleaded not guilty and entered a diversion agreement with prosecutors.


The legal issue is whether Washington’s BAC machine accurately processed the results of breath tests. The state limit for blood alcohol content is .08. As the machines perform the required calculations, however, they produce results that contain more than two digits.

State law says the numbers are to be “rounded” but instead the software had been “truncating” them, or cutting off the numbers at a certain decimal point, a fact the judges found Couper knew or should have known.

The practical results of truncation vs. rounding can actually benefit defendants – as rounding a number could result in it increasing and showing a person was perhaps more intoxicated, something that cannot happen when the numbers are simply cut off.

Please contact my office if you, a friend or family member are charged with DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Washington Police Say Drivers Aren’t Stopping For Them

See ya! Washington police say drivers aren't stopping for them; cite  pursuit restrictions - OPB

Journalist Austin Jenkins reports that drivers are increasingly refusing to stop for Washington State Patrol troopers. troopers – and other law enforcement agencies also say this is becoming a common occurrence.

The Northwest News Network reports that from January 1 to May 17 of this year, the agency logged 934 failure-to-yield incidents. While the patrol didn’t track this in the past, veteran troopers say there’s been a dramatic uptick in drivers fleeing traffic stops.

“Something’s changed. People are not stopping right now. It’s happening three to five times a shift on some nights and then a couple times a week on day shift.” ~WA State Patrol Sgt. Darren Wright.

Many blame recent police reform laws passed in response to the murder by police of George Floyd in Minneapolis and other high-profile police killings — reforms aimed at addressing racial disproportionality in policing. Minority Republicans in the Legislature criticized many of the changes, including the pursuit law House Bill 1054, and said they jeopardized public safety.

Under House Bill 1054, police officers can’t give chase unless there’s reasonable suspicion to believe the driver is impaired or the higher standard of probable cause to believe they’re an escaped felon or have committed a violent crime or a sex crime.

Even then there are restrictions on when officers can pursue. Officers must balance whether the person poses an “imminent threat” and whether the safety risks of the person getting away outweigh the danger of engaging in a high-speed chase.

Please contact my office if you, a friend or family member are charged with Reckless Driving, Eluding or any other crimes. Hiring an effective and competent defense attorney is the first and best step toward justice.

Drug Overdose Deaths Hit Highest Level On Record

U.S. drug overdose deaths hit record 107,000 last year

According to provisional data from the US Centers for Disease Control and Prevention, drug overdoses in the United States were deadlier than ever in 2021.

Nearly 108,000 people died of drug overdoses in 2021, and about two-thirds of those deaths involved fentanyl or another synthetic opioid. Overdose deaths have been on the rise for years in the US, but surged amid the Covid-19 Pandemic. Annual deaths were nearly 50% higher in 2021 than in 2019, CDC data shows.

The spike in overdose deaths in the second year of the pandemic wasn’t as quite as dramatic as in the first year: Overdose deaths were up about 15% between 2020 and 2021, compared with a 30% jump between 2019 and 2020. But the change is still stark. In 2021, about 14,000 more people died of overdose deaths in than in 2020, the CDC data shows.

“This is indeed a continuation of an awful trend. Rates of overdose deaths have been on an upward climb for decades now, increasing at unprecedented rates right before the beginning of the Covid-19 pandemic in the U.S.” ~Dr. Nora Volkow, director of the National Institute on Drug Abuse.

The pandemic accelerated trends that were already heading in the wrong direction, and experts say that reversing course will require concentrated efforts — and it will take time, both strategically and ideologically.

Treatment for drug abuse was lacking even before the pandemic. In 2019, more than 20 million people ages 12 and older reported having a substance abuse disorder, only 10% of whom reported receiving care, according to a report from the US Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration.

And a report from the Kaiser Family Foundation cites evidence that access and utilization of these services has gotten even worse during the pandemic.

The illicit drug supply in the US has also seen a “massive shift” over the past two decades. Increasing use of synthetic drugs caught the attention of experts before Covid-19 hit, but the pandemic may have exacerbated the problem. With international travel limited, synthetics that are easier to manufacture and more concentrated were likely more efficient to smuggle across borders, Volkow said.

Overdose deaths involving synthetic opioids such as fentanyl, psychostimulants such as methamphetamine, and cocaine all increased between 2020 and 2021, according to the new CDC data. Deaths involving natural or semi-synthetic drugs, such as prescription drugs, fell slightly from the year prior.

My opinion? This is a devastating milestone in the history of the overdose epidemic in America. When we report numbers, we must remember that each number represents an individual, their families, and their communities. Compounding the issue is the fact that the WA Supreme Court struck down Washington felony drug possession law. In the wake of the Blake decision on February 25, people can no longer be arrested for simple drug possession in Washington state.

Please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

WA State Patrol Lacks Diversity, Seeks Active Recruitment of Minority Officers

Police Officers Explain Why Diversity in Law Enforcement Matters | Rasmussen University

King5 journalist PJ Randhawa reports that diversity in the Washington State Patrol (WSP) has been lacking for years. A new state law is putting pressure on the agency to attract and retain cadets of color.

WSP data shows the majority of state troopers are white men. Department of Justice and state data found diversity in the state patrol has declined. Compared with 2003, the patrol now employs fewer Black, Asian and Native American troopers.

A new state law looks to change the narrative. In March, Gov. Jay Inslee signed a bill that puts pressure on WSP to attract and retain cadets of color. The measure will cost the state patrol $1.3 million. It includes the commission of an independent study into retention and recruitment efforts in addition to setting agency benchmarks and providing legislative oversight of WSP’s progress.


A 2021 state study into WSP’s retention and recruitment practices showed cadets of color were failing the agency’s psychological evaluation at a higher rate than their white counterparts. And there’s a lot at stake – if you flunk the psychological evaluation, you’re out.

According to data compiled in the report, 36% of white candidates didn’t pass WSP’s psychological evaluation compared to 44% of Latinx candidates, 67% of Asian candidates and 60% of Black candidates who didn’t pass the psychological examination.

Dr. Daniel Clark, WSP’s longtime psychologist, was the man responsible for administering the tests. Clark faced criticism from lawmakers after that 2021 state report showed candidates of color were rejected from the patrol at high rates. The report found, “Every focus group and multiple key executives reported concerns of bias in the psychological evaluation process.”

Clark kept his job. He’s been reassigned at the state patrol and now deals with counseling and training.


Last year, WSP announced they had signed onto the 30×30 pledge, a nationwide effort within police departments to increase representation in all ranks and promote gender equity. According to the WSP, “The ultimate goal of the 30×30 Initiative is to reach 30 percent of women in police recruit classes by 2030 and to ensure policing agencies are truly representative of the jurisdiction the agency serves. While 30×30 focuses on advancing women in policing, these principles are applicable to all demographic diversity, not just gender.”

According to a statement provided by WSP, high vacancy rates across all law enforcement agencies have increased competition for candidates of color. They say they continue to modify their hiring and training practices to eliminate any unintended barriers for candidates of color.

My opinion? I agree with recent studies showing that diversity in law enforcement may improve policing. Compared to white officers, Black and Hispanic officers made far fewer stops and arrests — and used force less often — especially against Black civilians. Also, female officers used less force than their male counterparts. Apparently, de-escalation tactics and a decrease in unnecessary pullovers benefits everyone.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Fleeing a Crime Scene

Savannah Police Sing To Their Suspect When They Catch Him | Police humor, Savannah chat, Men in uniform

Are Washington’s new search and seizure laws allowing suspects to flee crime scenes?

According to journalist , police may regain authority to use force to stop people fleeing crime scenes. The newly proposed HB 2037 allows police to use physical force if people flee from these brief investigative detentions.

HB 2037 arrives after HB 1310 was recently enacted to regulate use-of-force tactics by police. HB 1310 forbids police officers from using force to detain someone unless they have enough evidence to arrest them. Before last year’s reforms, police could use force, including handcuffs, to detain someone briefly while they sought out more evidence.

Law enforcement officials say HB 1310 prevents them from investigating a crime scene before people scatter. However, defenders of HB 1310 say people might run from police out of fear, not guilt, and racial bias could play a role in their detention.

Radil reports that Angelina Smalls is the sister of Bennie Branch, who was killed by Tacoma police in 2019. She spoke against the new bill at the legislature this week.

“Because Bennie fled, under HB 2037, police would have authority to use force to stop him . . . I think House Bill 2037 is an invitation for abuse by police officers. Legislators should be protecting communities from needless violence, not creating more opportunities for police to harm people.” ~Angelina Smalls

DeRay McKesson, co-founder of the national police reform group Campaign Zero, also spoke against the bill. He said physical force still turns into deadly force too easily, and police can track down the person when they have more evidence.

Democrats who helped pass the police reform laws say they’ve been traveling the state, hearing from law enforcement, victims of crime and affected families.

Please review my Search and Seizure Legal Guide for more information on this topic. And please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Car Crash Deaths Have Surged During COVID-19 Pandemic.

Traveling during the winter holiday? Limit your COVID-19 risk with this scientific guide.

Excellent article in the Los Angeles Times by reporters Emily Baumgaertner and Russ Mitchell discussed a tally that shocked experts. In short, there were 38,680 deaths on U.S. roadways last year, the most since 2007. The increase in accidents happened even though pandemic precautions had dramatically reduced driving.

Experts say this driving behavior is likely a reflection of widespread feelings of isolation, loneliness and depression. The rise in motor vehicle deaths also lines up with other pandemic-era trends. Alcohol sales have soared, drug overdoses have set new records, and homicides have seen their biggest increase on record.

According to the article, before the pandemic, safety on U.S. roadways had been improving for decades. Even as the number of people on the roads increased and many states raised their speed limits, annual fatalities fell from around 55,000 in 1970 to 36,096 in 2019. Then came the 7.2% rise in 2020, followed by an 18% jump in the first six months of this year, based on preliminary figures from the federal government.

According to the article, for every 100 million miles driven last year, 1.37 people died. This is an increase of 23% rise from 2019. There’s also an increase in deadly accidents involving speeding, illegal substances or a failure to wear a seat belt.

Jonathan Adkins, executive director of the Governors Highway Safety Assn., chimed in on the subject. He suggested that people’s disregard for themselves and others on the road is part of a national decline in civility that accelerated during the pandemic.

“Anecdotally, we hear from governors’ offices around the country that it’s a symptom and a sign of the overall lack of consideration we’re showing for other citizens, whether it be wearing masks, or not getting vaccinated, or how we drive . . . It’s very aggressive. It’s very selfish.” ~Jonathan Adkins, Executive director of the Governors Highway Safety Assn.

In California, which saw a 5% increase in fatalities last year, Highway Patrol officers issued nearly 28,500 tickets for speeds over 100 mph, almost double the 2019 total. They arrested 232 people for reckless driving — a 150% rise — and are on pace to exceed that this year.

Research based on crash investigations has shown that even a slight speed increase — say, from 50 mph to 56 mph — is enough to increase a driver’s risk of death. Since the start of the pandemic, a larger share of accident victims — including those who survived — have been ejected from their vehicles, typically because they were not wearing seat belts.

The increase in ejections was seen just as lockdowns began last year. Men have accounted for a disproportionate share. Making the roads even more dangerous is rising drug and alcohol use. In one survey, over 7% of adults said they were more likely to drive while impaired than they were before the pandemic.

Federal researchers who looked at accidents in which drivers were killed or seriously injured found that the proportion who tested positive for opioids nearly doubled after the pandemic began. Marijuana use also rose considerably.

Finally, more drivers are distracted. Researchers used GPS and other data to determine that drivers used their phones more frequently after the pandemic began, and that the problem only worsened over time.

Please contact my office if you, a friend or family member are charged with a driving crime. Reckless Driving, Reckless Endangerment, Eluding and DUI are typical examples of crimes involving motor vehicles. Hiring an effective and competent defense attorney is the first and best step toward justice.

Expert Witnesses on Domestic Violence & Recanting Victims

Domestic Violence Organization, SAFE House, provides personal & legal  advocacy for victims of domestic abuse – Domestic Violence Shelter Serving  Las Vegas & Henderson, NV Families | SAFE House

In State v. Harris, the WA Court of Appeals held that expert testimony in DV cases is not required to accompany evidence of a prior assault. However, a court may allow expert testimony on general characteristics or conduct typically exhibited by survivors of domestic violence.


The defendant Mr. Harris and the victim Ms. Bohannan have had a long romantic relationship. Bohannan has two young children, the youngest of which is the biological child of Harris. Due to prior domestic violence, there was a no-contact order prohibiting Harris from contacting Bohannan directly or indirectly, or coming within 300 feet of her residence. Bohannan was against the existence of the no-contact order.

On June 28, 2020, Harris went to Bohannan’s Everett apartment. Bohannan’s neighbor called police after hearing thumping and screams for help. Police arrived shortly afterward. Bohannan eventually allowed the officers inside, where they noticed what appeared to be fingerprints on her neck. A later body check revealed red marks on Bohannan’s arms and body. Bohannan said that Harris assaulted her, but did not want the statement in writing or photos of her injuries.

Shortly thereafter, Harris was arrested nearby the residence. While incarcerated, Harris had repeated telephone and video-call contact with Bohannan. The jail system that monitors calls captured the communications.

Harris was charged with three counts of Violation of a No-Contact Order. Prior to trial, the State introduced Harris’s prior conviction for assaulting Bohannan under Evidence Rule ER 404(b). Admitting the evidence was done to assist the jury in evaluating her credibility. Harris moved to exclude this prior conviction. The court denied Harris’ motions to exclude.

The jury found Harris guilty as charged. He appealed on arguments that the trial court erred by admitting evidence of a prior assault.


The Court of Appeals began with an in-depth discussion of ER 404(b). It said this evidence rule prohibits a court from “admitting evidence of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith.” Additionally, evidence of a defendant’s prior assault of a victim is generally inadmissible if the defendant assaults the victim on a later occasion.

However, the Court of Appeals also said that evidence may become admissible for reasons such as assisting the jury in judging the credibility of a recanting victim. Before admitting ER 404(b) evidence, a trial court must (1) identify the purpose for which the evidence is sought to be introduced, (2) determine whether the evidence is relevant to prove an element of the crime charged, and (3) weigh the probative value against its prejudicial effect.

Ultimately, the Court of Appeals reasoned the trial court did not abuse its discretion in admitting evidence of Harris’s prior assault of Bohannan.

“The trial court determined that the State could prove the assault by a preponderance of evidence,” said the Court of Appeals. “The court also identified the purpose of introducing the prior assault—to challenge Bohannan’s credibility. Finally, the court properly balanced the probative versus prejudicial value of introducing the prior assault, and delivered a limiting instruction to the jury. These actions do not rise to an abuse of discretion.”

Next, the Court of Appeals reasoned that expert witnesses may testify on general characteristics or conduct typically exhibited by survivors of domestic violence. However, such testimony must not state that a specific victim witness exhibits the responses or characteristics of a crime victim or state the expert’s opinion of the victim’s credibility.

“Based on our review of Washington precedent, we decline to adopt a requirement that expert testimony must accompany evidence of prior assault to assist assessment of witness credibility. We do not, however, expressly prohibit such expert witness testimony. Rather, it is within the purview of the trial court to assess the proposed introduction of expert testimony and its adherence to requisite evidentiary rules.” ~WA Court of Appeals.

With that, the WA Court of Appeals upheld Harris’s conviction.

My opinion? This case captures how the State may use expert testimony from a witness trained in DV-related issues. If qualified, the expert provides information on how DV affects a victim’s perceptions and actions. Testimony may be introduced at any stage in the process, including grand jury hearings, plea negotiations, trials, sentencing, and clemency or parole hearings.

The most widely accepted use of DV experts is in traditional self-defense cases when a victim of DV victim injures or kills the abuser. DV experts are also used to explain why a victim commits a crime under orders from an abuser. They can discuss why a DV victim fails to report an abuser’s crimes, or does not prevent or intervene in the abuse of their children. Experts are often needed to explain why victims do not report, change their stories, recant testimony, or assist in the prosecution of perpetrators.

In my trial experience, expert witnesses may testify on general characteristics or conduct typically exhibited by survivors of domestic violence. However, such testimony must not state that a specific victim witness exhibits the responses or characteristics of a crime victim or state the expert’s opinion of the victim’s credibility.

Please read Defending Against DV Charges and contact my office if you, a friend or family member face DV charges or any other crimes. Hiring an effective and competent defense attorney is the first and best step toward justice.