Researching Washington’s Criminal Law

When you are beginning to research criminal law in Washington there are several key concepts that should guide your research. The first is the difference between substantive and procedural law. In Washington, you will find the “substance” of the criminal law, the various crimes, in Titles 9 and 9A of the Revised Code of Washington (RCW), and the procedural laws, the rules regarding trials and sentencing, in RCW Title 10 and the Washington State Court Rules.

When reading a criminal statute, it is important to ascertain the elements of each crime and each degree (first, second, etc.) that a person is charged with. The prosecution has the burden to prove each element beyond a reasonable doubt. For example, the bigamy statute, RCW 9A.64.010, reads as follows:

Bigamy.

(1) A person is guilty of bigamy if he or she intentionally marries or purports to marry another person when either person has a living spouse.

(2) In any prosecution under this section, it is a defense that at the time of the subsequent marriage or purported marriage:

(a) The actor reasonably believed that the prior spouse was dead; or

(b) A court had entered a judgment purporting to terminate or annul any prior disqualifying marriage and the actor did not know that such judgment was invalid; or

© The actor reasonably believed that he or she was legally eligible to marry.

(3) The limitation imposed by RCW 9A.04.080 on commencing a prosecution for bigamy does not begin to run until the death of the prior or subsequent spouse of the actor or until a court enters a judgment terminating or annulling the prior or subsequent marriage.

(4) Bigamy is a class C felony.

The elements of this crime are found in the first subsection: intentionality; marriage or purported marriage; and, “when either person has a living spouse.” The elements of a crime are part of the jury instructions given to the jury at the end of a trial. The second section includes statutory defenses. The third section is the statute of limitations, which in this case lasts the life of the first marriage plus three years (the statute of limitations for many crimes can be found in RCW 9A.04.080). The fourth section states the severity of the crime for sentencing purposes.

For minor crimes, the statutory charges will be found on the ticket issued by the officer. For more serious crimes, the defendant will be indicted and the statutory charges will be found in the indictment documents. Careful attention should be paid to understanding the elements for each charge.

The second key concept when researching criminal law is the importance of appellate caselaw. The Supreme Court and Court of Appeals at both the state and federal level are responsible for reviewing whether a statute or police action is constitutional. In criminal cases, this judicial review is often under the Fourth, Fifth, and Sixth Amendments of the United States Constitution which protect such rights as the right to the presumption of innocence, the right to remain silent, and the right to an attorney. The corresponding rights under Washington’s Constitution are found in Article 1. State constitutions can provide greater protection of individual rights than the federal constitution, State v. Gunwall, 106 Wn.2d 54, 720 P.2d 806 (1986), but they cannot provide less. Appellate courts also interpret the meaning of ambiguous statutes. This statutory interpretation often comes into play when criminal statutes are amended multiple times over the years which can add both complexity and confusion. You can search caselaw for free at Google Scholar.

It is important to read the most recent cases about an issue to understand the current state of the law. The Criminal Caselaw Notebook is a good reference for cases decided through December of 2018. Annotated statutes such as the Revised Code of Washington Annotated (Thomson Reuters) or the Annotated Revised Code of Washington (Lexis) can help you find the relevant cases for the criminal statute you are researching. Washington Practice criminal law and procedure treatises or law review articles can also be useful resources. The reference librarians at the Washington State Law Library can help you access these resources.

Computing sentences can be a complex process. Adult sentencing statutes are generally found in RCW Chapter 9.94A and juvenile sentencing statutes are found in RCW Chapter 13.40. The Washington State Caseload Forecast Council provides access to the Adult Felony Sentencing Manual and the Juvenile Disposition Manual, two publications that should be consulted when researching sentencing. Because adult sentencing statutes frequently change, the Washington Courts website publishes a compilation of the Sentencing Reform Act to help researchers find the sentencing statutes in effect on a given date.

The law library collection has several resources on criminal law, procedure, and sentencing:

Washington Practice, Criminal Law and Sentencing by Seth A. Fine

Washington Practice, Criminal Practice and Procedure with Forms by Royce A. Ferguson, Jr.

LexisNexis Practice Guide: Washington Criminal Law by Linda S. Portnoy and Lisa M. Leone

Criminal Law by Wayne R. LaFave and Austin W. Scott, Jr.

Substantive Criminal Law by Wayne R. LaFave

Wharton’s Criminal Law by Charles E. Torcia

Criminal Law in a Nutshell by Arnold H. Loewy (RM)