WA Court of Appeals at Div. II: Bailbondsperson testimony exclusion improper under ER 615
Note: This opinion is not the standard Google Scholar link, but to Washington Courts. As such, it will expire after ninety days.
In presenting a defense to bail jumping, Skuza was allowed to have a bailbondsman testify. He had a conversation with the bailbondsperson, where she related what her testimony would be to Skuza. The transcript on this portion is worth the read. However, the conversation didn't on its face violate ER 615 and the exclusion is reversible error to that count only:
Here, however, the trial court erred because there was no evidence that Spencer violated ER 615. The trial judge stated that he had seen Skuza and Spencer together in a smoking area near the court and heard a portion of a conversation between them. But the trial court failed to conduct a hearing regarding the circumstances of the interaction. Spencer, Skuza, and the trial judge were not questioned about the interaction or their observations of it. The trial judge made a statement, which was not subject to cross-examination, about what he had witnessed and the results of legal research the trial court extern had conducted. Counsel discussed the effect of the trial judge's observation on whether Spencer could be called as a defense witness in the proceeding but did not discuss the fact that the trial judge had inadvertently become a witness in the proceeding. Skuza had no opportunity to question the trial judge about his observations, call Spencer to testify about the specifics of their contact, or research the law to provide a defense or authority against the sanction of excluding Spencer's testimony.
Moreover, the trial judge's description of the conversation did not identify specific exchanges that took place between Spencer and Skuza sufficient to warrant a finding that an ER 615 violation occurred. The trial judge only described statements that Spencer made to Skuza about her testimony and made no reference to specific statements that Skuza made to Spencer about her intended testimony or his prior testimony. It is possible that the conversation did not violate ER 615's intent, which is "to discourage or expose inconsistencies, fabrication, or collusion." Tegland, § 615.2, at 623. Skuza had already completed his testimony in the case by the time of the alleged violation, so Spencer telling Skuza about her intended testimony did not give Skuza an opportunity to alter his testimony to match hers.
Without a thorough factual development of the circumstances of the conversation, the record is insufficient to establish that an ER 615 violation occurred. On this record, the trial court erred when it applied the harshest possible sanction of excluding evidence central to the defendant's bail jumping defense.