refusing to adopt a new privilege under ER 501 that was accepted by federal courts under Fed. R. Evid. 501 because federal rule is “entirely different” from Washington rule
How later courts described this case
- refusing to adopt a new privilege under ER 501 that was accepted by federal courts under Fed. R. Evid. 501 because federal rule is “entirely different” from Washington rule
- applying a test similar to Arndt’s in the context of the right to confrontation
- applying a similar test in the context of the right to confrontation
- "Abuse exists when the trial court's exercise of discretion is 'manifestly unreasonable or based upon untenable grounds or reasons.'"
Written by the judges who cited it.
The opinion
Chambers, J.
(concurring) — I respectfully disagree with the majority’s bright-line rule that a defendant’s right of confrontation always trumps the State’s interest in keeping the location of a police surveillance site secret. However, I concur in the result because here the court excluded the evidence without weighing the State’s interest against the Defendant’s need for confrontation.
The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution grant criminal defendants a right to confront and cross-examine adverse witnesses. However, as the majority concedes, the right is not absolute. If the State shows a compelling reason to exclude prejudicial or inflammatory evidence, the evidence may be inadmissible. State v. Hudlow, 99 Wn.2d 1, 16 , 659 P.2d 514 (1983). The Court of Appeals recently applied a test developed by the Hudlow court to determine whether a defendant has the right to determine the location of a police surveillance site:
*629 The right to confront witnesses is subject to the following limitations: (1) the evidence must be relevant; and (2) the defendant’s right to introduce relevant evidence must be balanced against the State’s interest in precluding evidence so prejudicial that it disrupts the fairness of the fact-finding process. If the defendant shows that the evidence is minimally relevant, the evidence must be admitted unless the State can demonstrate a compelling state interest for excluding the evidence. If the evidence is characterized as being of high probative value, there can be no state interest compelling enough to preclude its introduction.
State v. Reed, 101 Wn. App. 704, 709 , 6 P.3d 43 (2000) (citing Hudlow, 99 Wn.2d at 16 ).
While declining to adopt a new privilege to cover the situation, the Reed court held that “[bjecause Officer Jokela’s testimony was critical to the State’s proof that Reed actually delivered the drugs, Reed should have been allowed to learn the officer’s location and independently verify the accuracy and veracity of Officer Jokela’s statement.” Reed, 101 Wn. App. at 713 .
I agree with the procedure followed by the Court of Appeals in Reed to determine whether there is an overwhelming State interest in keeping the location of the surveillance site secret. In these cases, there should be an in camera hearing to evaluate the three parts of the Hudlow test; (1) the evidence must be of at least minimal relevance; (2) if the evidence is relevant, the burden is on the State to show the evidence is so prejudicial that it would disrupt the fairness of the fact finding process at trial; and (3) the State’s interest in excluding prejudicial evidence must be balanced against the defendant’s need for the information sought, and only if the State’s interest outweighs the defendant’s need can otherwise relevant information be withheld.
Where the location of the officers’ point of observation is of minimal probative value to the defendant and the need of the government to keep the location secret is great, automatic disclosure of the location, as required by the majority, is unnecessary to a constitutionally fair trial.
*630 Here, as in Reed, the evidence the Defendant sought to introduce was relevant to the issue of how clearly the officer could view the drug transaction. Because the court failed to hold an in camera hearing to determine whether the evidence met the other two parts of the test, I agree with the majority that this Court should reverse and remand for a new trial.
Ireland and Bridge, JJ., concur with Chambers, J.