Service of Process and Prior Bad Acts

November 28, 2014  Case Law Updates Newsletter   ... [Continue Reading]

WA Supreme Court Happenings Spring 2014

For Updates on select cases argued in Spring 2014 click here. ... [Continue Reading]

Alternative Means Crime Trafficking in Stolen Property and Jury Unanimity

State v. Owens, No. 88905-8 (Mar. 27, 2014) How many alternative means does RCW 9A.82.050 (trafficking in stolen property in the first degree) create?  Does the jury have to unanimously agree to which means were used in order to convict?  In this case the Washington Supreme Court held the statute has only two alternative means and, because there was sufficient evidence to show Owens committed the crime by one of those two means, the jury did not have to unanimously agree on which means he ... [Continue Reading]

Duty of Good Faith: No Contract Violation No Bad Faith

GMAC v. Everett Chevrolet, No. 68374-8-I (Ct. App. Jan. 27, 2014) In this case the court held that certain demand provisions were not limited by the duty of good faith because that duty does not create a new substantive contract provision.  Instead, it comes from the underlying contract obligations.  Therefore, a bad faith claim cannot  stand alone.  It must specify which contract provision the other party did not perform in good faith. GMAC and Everett Chevrolet (“EC”) signed a ... [Continue Reading]

Confrontation Clause: New test for expert witnesses in WA

                State v. Lui, No. 84045-8 (Jan. 2, 2014) The Washington Supreme Court declared a new test today regarding the confrontation clause.  Confrontation clause analysis has been fragmented for many years and even the United States Supreme Court was divided on how to articulate the rule.  Well, here it is: If the declarant makes a factual statement to the tribunal, then he or she is a witness. If the witness's ... [Continue Reading]

Ninth Circuit holds Misdemeanor Domestic Violence Conviction in Tribal Court, Predicate Offense for Federal Gun Laws

        In last week’s decision, United States v. First, No. 11-30346 (Oct. 1, 2013), the Ninth Circuit held that “although the right to counsel in 921(a)(33)(B)(i)(I) includes a Sixth Amendment constitutional minimum in all state and federal proceedings-and indeed a more expansive right to counsel in many states-a misdemeanor conviction obtained in tribal court may qualify as a predicate offense to a 922(g)(9) prosecution so long as the defendant was provided ... [Continue Reading]

Criminal Defendant Cannot Claim Public’s Right to Open Court After Waiving Personal Right

        State v. Herron, No. 26354-1-III (Oct. 3, 2013) The Washington Constitution confers a right to open court on both a criminal defendant and on the public.  Wash. Const. Art. 1, §10, 22.  Division III previously noted the rights created by the two provisions overlap, but differ.  In re Detention of Reyes, No. 28167-1-111, 2013 WL 5297338 (Wash. ct. App. Sept. 19, 2013). Section 22 rights are personal to the criminal defendant, where §10 rights are ... [Continue Reading]

Is the Common Law Medical Necessity Defense Still Available for Marijuana Charges?

State v. Kurtz, No. 87978-1, (Sept. 19, 2013) Now that WA has a comprehensive statutory scheme for medical marijuana, does it abrogate the common law defense of medical necessity?  The WA Supreme Court said no in a 5-4 decision last week. When Kurtz was charged with manufacturing and possession of marijuana he tried to present a medical necessity defense at trial, but the court prohibited it and Kurtz was convicted.  The WA Supreme Court started out with a brief history of the common law ... [Continue Reading]

WA Supreme Court Affirms its Holding in Coristine

    State v. Lynch, No. 87882-0 (Sept. 19, 2013) The WA Supreme Court affirmed its reasoning in State v. Coristine, 300 P.3d 400, 177 Wn.2d 370, (2013) in a case with similar facts. Lynch was charged with second degree rape and indecent liberties.  His defense was that the state could not prove its case, but over his objection, the trial court allowed a jury instruction on the affirmative defense of consent.  The jury instruction on consent shifted the burden of proof ... [Continue Reading]

What is a Disabled Worker’s True Wage-Earning Capacity Under the LHWCA?

    Petitt v. Sause Brothers, No. 12-70740 (9th Cir. Sept. 20, 2013)   When a worker who receives disability benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA) earns a scheduled wage increases unrelated to the merits of his performance, does it constitute an increase in his wage-earning capacity?  The Ninth Circuit said no. In this case,  Petitt injured his back while working as a welder for Sause Brothers (Sause).  At the time of the ... [Continue Reading]