State v. Gehrke

FAIRHURST, C.J. (concurring)

¶ 40 CrR 2.1(d) permits amendments to criminal charges "at any time before verdict or finding if substantial rights of the defendant are not prejudiced." We have established a bright line rule that "[a] criminal charge may not be amended after the State has rested its case in chief unless the amendment is to a lesser degree of the same charge or a lesser included offense" because such an amendment creates prejudice per se. State v. Pelkey, 109 Wash.2d 484, 491, 745 P.2d 854 (1987) (emphasis added). I agree with the dissent that maintaining this bright line rule is…