§43.6 Analysis

• Jurisdiction: Washington

§43.6 ANALYSIS

This section analyzes CR 43 subsection by subsection.

(1)CR 43(a): Taking of testimony at trial

In general, CR 43 requires presentation of oral testimony in open court, unless the court directs otherwise or a court rule or statute provides otherwise.

(a)Scope of examination and cross examination

ER 401 through 903 set forth the scope of examination and cross examination; but admission of evidence is within the trial court's discretion, and an appellate court will reverse a trial court's decision only on a showing of abuse of discretion. See Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 684 P.2d 692 (1984); Maehren v. City of Seattle, 92 Wn.2d 480, 599 P.2d 1255 (1979), cert, denied, 452 U.S. 938 (1981). The trial court has discretion to exclude evidence that would otherwise be admissible if its prejudicial nature outweighs its probative value. Walker v. Bangs, 92 Wn.2d 854, 601 P.2d 1279 (1979); ER 403.

Counsel must generally limit cross examination to the scope of the direct examination, subject to the trial court's discretion. A trial court should give "considerable latitude" in cross examination. State v. Ferguson, 100 Wn.2d 131, 139, 667 P.2d 68 (1983;,- see, e.g., United States v. Wood, 550 F.2d 435 (9th Cir. 1976). In general, if a subject is presented or "opened up" in direct examination, the cross-examining party is free to develop and explore the "various phases of the subject." Rome v. Dixon, 31 Wn.2d 173, 183, 196P.2d327 (1948).

Likewise, when counsel introduces or explores a particular subject matter in cross examination, the other party may further explore the issue on redirect. Sturgeon v. Celotex Corp., 52 Wn.App. 609, 762P.2d1156 (1988).

The scope of cross examination is also limited by the general rules of relevance and admissibility governing direct examination of witnesses. The test of a "collateral matter" that would be inadmissible on cross examination of a witness is whether the cross-examining party would be entitled to prove the matter in support of its case. O'Neil v. Crampton, 18Wn.2d579,140P.2d308 (1943). The court should exclude matters that are not material to the case and that have no bearing on the credibility of the witness. State v. J-R Distributors, Inc., 82 Wn.2d 584, 512 P.2d 1049 (1973), cert, denied, 418 U.S. 949, modified sub nom. State v. Regan, 97 Wn.2d 47, 640 P.2d 725 (1982). [Note: State v. J-R Distributors, Inc. was superseded by statute regarding accomplice liability in State v. Roberts, 80 Wn.App. 342, 908 P.2d 892 (1996).]

(b) Alternative means of introducing testimony

CR 43(a)(1) changed notably in 2010 to accommodate technological advances related to video or telephonic testimony. The court may, if necessary, permit testimony by video or telephonic transmission with appropriate safeguard to avoid undue hardship and prejudice to any party. The new language, borrowed from FED. R. CIV. P. 43(a), is "[f]or good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location."

Until the 2010 amendment, Washington State had been among a minority of states that had not adopted the substance of the federal rule. Before the amendment, the Court of Appeals, Division III, held that telephonic/video testimony was not allowed in Washington unless both parties consent. Kinsman v. Englander, 140 Wn.App. 835, 844, 167P.3d622 (2007). The court further explained that Washington's CR 43 did not contain language expressly authorizing such testimony, unlike the federal rule. Id. at n.8. Because the subsequently amended CR 43(a) contains the federal rule's language, Washington courts will now likely look to interpretations of the federal rule as guidance for interpreting CR 43(a).

In addition to CR 43(a), other civil rules address methods for introducing testimony. For example, a witness may testify by deposition (including video depositions under CR 30(b)(8)) under certain conditions. See Chapter 30. (Rule 30. Depositions Upon Oral Examination) of this deskbook and CR 30(b)(8) for the requirements for videotaping depositions. The decision to allow use of deposition testimony at trial in lieu of live testimony is discretionary with the court. See Chapter 32 (Rule 32. Use of Depositions in Court Proceedings) of this deskbook and CR 32.

Practice Tip: A party may introduce depositions at trial under limited circumstances or for limited purposes, as set forth in CR 32(a)(1) (3), and (4). Note, however, that lengthy deposition testimony, when it is read to the jury, is not as effective as live testimony or videotaped testimony. A jury generally will pay closer attention to testimony given by a witness whom they can both see and hear. It is therefore wise to limit the amount of "paper" testimony that is presented at trial.

Parties seeking to introduce the deposition of a witness at trial in lieu of live testimony may be required to show they used due diligence to bring the witness to trial. Without such a showing, the court's refusal to allow the deposition into evidence is not an abuse of discretion. Sutton v. Shufelberger, 31 Wn.App. 579, 643 P.2d 920 (1982). In Sutton, service of a subpoena on the plaintiff's doctor on the next-to-last day of trial did not constitute due diligence and thus the doctor's deposition could not be used in lieu of live trial testimony.

Practice Tip: Prior to September 1988, a court reporter would file the "original" deposition transcript of a witness with the court clerk, and would deliver only a "copy" to the attorney who ordered the transcript. Since that time, however, court reporters deliver original deposition transcripts directly to the attorney who orders the original transcript. The rules are silent as to the requirements for storing the original transcript or for introducing it into evidence at court. CR 30(f). However, CR 32(d)(4) states: Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer under rules 30 and 31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. Carefully maintain and inventory the original deposition transcripts to ensure that they are available for trial.

In general, if a party is going to use a deposition transcript as substantive evidence at trial, counsel should give notice to the trial judge and to counsel for all other parties, and offer the original transcript. In the absence of any objection by other parties, the court should receive the original deposition transcript. Counsel can make aformal motion to "publish" the deposition for the record, but it is probably unnecessary.

The court may admit answers to interrogatories, CR 33, and responses to requests for admission, CR 36, into evidence in accordance with the provisions of those civil rules. Further, interrogatory answers and responses to requests for admission also may be admissible at trial as party admissions. See ER 801(d)(2); ER 613.

(c) Multiple examinations

There are no reported decisions in Washington interpreting CR 43(a)(2). The text of the rule is straightforward. In cases with multiple counsel "upon the same side," the rule limits each party to one attorney per witness at trial. The attorney who initially conducts direct examination of a witness must continue as the examining attorney until the witness is excused. The same attorney must make all objections and offers of proof related to that witness.

(2)CR 43(d): Oaths of witnesses

CR 43(d) governs the manner in which oaths are administered. CR 43(d)(1) provides that in superior court, the judge must administer the oath to each witness individually, while the witness stands. Note that RCW 5.28.010 authorizes "[e]very court, judge, clerk of a court, state-certified court reporter, or notary public" to administer oaths and affirmations and to take testimony in proceedings properly before them. It appears that in superior court trials, however, only the judge may administer oaths and affirmations under CR 43(d). No specific form of oath is required, according to RCW 5.28.030.

CR 43(d)(2) provides that CR 43(d)(1) does not apply to ex parte or default divorce cases. Each superior court may prescribe its own rules for the swearing of witnesses in such cases.

CR 43(d)(3) permits the court to accept a solemn affirmation from a witness in lieu of an oath. This provision permits witnesses whose personal beliefs do not permit the taking of oaths to testify. The provision is consistent with RCW 5.28.050. An affirmation is equivalent in all ways to an oath, and is subject to the same penalties for perjury in the event of a false affirmation. RCW 5.28.060. Note that Washington courts lack express authority over foreign witnesses and cannot compel their attendance at trial. Meyers v. Boeing Co., 115 Wn.2d 123, 129, 794 P.2d 1272 (1990). In Hill v. Jawanda Transport Ltd., 96 Wn.App. 537, 545, 983 P.2d 666 (1999), the court cited CR 43(d)(3) to further explain that "[a]t best, foreign witnesses may be deposed in the foreign jurisdiction after application to the foreign tribunal."

(3)CR 43(e): Evidence on motions

CR43(e)( 1) permits a court to accept affidavits as evidence on motions. The court may, however, direct that the matter be heard wholly or partly on oral or deposition testimony.

(a)Declarations under penalty of perjury equivalent to affidavits

Declarations may be used in lieu of sworn affidavits. Scott v. Petett, 63 Wn.App. 50, 56, 816 P.2d 1229 (1991); RCW 9A.72.085. This rule simplifies the procedure for having testimony heard by a court in a "paper" proceeding by not requiring the...