Chapter 5.60 RCW

WITNESSESCOMPETENCY

Sections

5.60.020Who may testify.
5.60.030Not excluded on grounds of interestExceptionTransaction with person since deceased.
5.60.050Who are incompetent.
5.60.060Who is disqualifiedPrivileged communications.
5.60.070Mediation.
5.60.072Mediation by agencyPrivilege and confidentiality.

NOTES:

Attorney as witness: Rules of court: CR 43(g); CPR 5 (DR 5-102).
Witnesses, competency: Rules of court: ER 601.


Who may testify.

Every person of sound mind and discretion, except as hereinafter provided, may be a witness in any action, or proceeding.



Not excluded on grounds of interestExceptionTransaction with person since deceased.

No person offered as a witness shall be excluded from giving evidence by reason of his or her interest in the event of the action, as a party thereto or otherwise, but such interest may be shown to affect his or her credibility: PROVIDED, HOWEVER, That in an action or proceeding where the adverse party sues or defends as executor, administrator or legal representative of any deceased person, or as deriving right or title by, through or from any deceased person, or as the guardian or limited guardian of the estate or person of any incompetent or disabled person, or of any minor under the age of fourteen years, then a party in interest or to the record, shall not be admitted to testify in his or her own behalf as to any transaction had by him or her with, or any statement made to him or her, or in his or her presence, by any such deceased, incompetent or disabled person, or by any such minor under the age of fourteen years: PROVIDED FURTHER, That this exclusion shall not apply to parties of record who sue or defend in a representative or fiduciary capacity, and have no other or further interest in the action.

NOTES:

PurposeIntentSeverability1977 ex.s. c 80: See notes following RCW 4.16.190.



Who are incompetent.

The following persons shall not be competent to testify:
(1) Those who are of unsound mind, or intoxicated at the time of their production for examination, and
(2) Those who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly.



Who is disqualifiedPrivileged communications.

*** CHANGE IN 2019 *** (SEE 1356-S.SL) ***
(1) A spouse or domestic partner shall not be examined for or against his or her spouse or domestic partner, without the consent of the spouse or domestic partner; nor can either during marriage or during the domestic partnership or afterward, be without the consent of the other, examined as to any communication made by one to the other during the marriage or the domestic partnership. But this exception shall not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other, nor to a criminal action or proceeding against a spouse or domestic partner if the marriage or the domestic partnership occurred subsequent to the filing of formal charges against the defendant, nor to a criminal action or proceeding for a crime committed by said spouse or domestic partner against any child of whom said spouse or domestic partner is the parent or guardian, nor to a proceeding under chapter 71.05 or 71.09 RCW: PROVIDED, That the spouse or the domestic partner of a person sought to be detained under chapter 71.05 or 71.09 RCW may not be compelled to testify and shall be so informed by the court prior to being called as a witness.
(2)(a) An attorney or counselor shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment.
(b) A parent or guardian of a minor child arrested on a criminal charge may not be examined as to a communication between the child and his or her attorney if the communication was made in the presence of the parent or guardian. This privilege does not extend to communications made prior to the arrest.
(3) A member of the clergy, a Christian Science practitioner listed in the Christian Science Journal, or a priest shall not, without the consent of a person making the confession or sacred confidence, be examined as to any confession or sacred confidence made to him or her in his or her professional character, in the course of discipline enjoined by the church to which he or she belongs.
(4) Subject to the limitations under RCW 71.05.360 (8) and (9), a physician or surgeon or osteopathic physician or surgeon or podiatric physician or surgeon shall not, without the consent of his or her patient, be examined in a civil action as to any information acquired in attending such patient, which was necessary to enable him or her to prescribe or act for the patient, except as follows:
(a) In any judicial proceedings regarding a child's injury, neglect, or sexual abuse or the cause thereof; and
(b) Ninety days after filing an action for personal injuries or wrongful death, the claimant shall be deemed to waive the physician-patient privilege. Waiver of the physician-patient privilege for any one physician or condition constitutes a waiver of the privilege as to all physicians or conditions, subject to such limitations as a court may impose pursuant to court rules.
(5) A public officer shall not be examined as a witness as to communications made to him or her in official confidence, when the public interest would suffer by the disclosure.
(6)(a) A peer support group counselor shall not, without consent of the law enforcement officer, limited authority law enforcement officer, or firefighter making the communication, be compelled to testify about any communication made to the counselor by the officer or firefighter while receiving counseling. The counselor must be designated as such by the agency employing the officer or firefighter prior to the incident that results in counseling. The privilege only applies when the communication was made to the counselor while acting in his or her capacity as a peer support group counselor. The privilege does not apply if the counselor was an initial responding officer or firefighter, a witness, or a party to the incident which prompted the delivery of peer support group counseling services to the law enforcement officer, limited authority law enforcement officer, or firefighter.
(b) For purposes of this section:
(i) "Law enforcement officer" means a general authority Washington peace officer as defined in RCW 10.93.020;
(ii) "Limited authority law enforcement officer" means a limited authority Washington peace officer as defined in RCW 10.93.020 who is employed by the department of corrections, state parks and recreation commission, department of natural resources, liquor and cannabis board, or Washington state gambling commission; and
(iii) "Peer support group counselor" means a:
(A) Law enforcement officer, limited authority law enforcement officer, firefighter, or civilian employee of a law enforcement agency, fire department, or state agency who has received training to provide emotional and moral support and counseling to an officer or firefighter who needs those services as a result of an incident in which the officer or firefighter was involved while acting in his or her official capacity; or
(B) Nonemployee counselor who has been designated by the law enforcement agency, fire department, or state agency to provide emotional and moral support and counseling to an officer or firefighter who needs those services as a result of an incident in which the officer or firefighter was involved while acting in his or her official capacity.
(7) A sexual assault advocate may not, without the consent of the victim, be examined as to any communication made between the victim and the sexual assault advocate.
(a) For purposes of this section, "sexual assault advocate" means the employee or volunteer from a community sexual assault program or underserved populations provider, victim assistance unit, program, or association, that provides information, medical or legal advocacy, counseling, or support to victims of sexual assault, who is designated by the victim to accompany the victim to the hospital or other health care facility and to proceedings concerning the alleged assault, including police and prosecution interviews and court proceedings.
(b) A sexual assault advocate may disclose a confidential communication without the consent of the victim if failure to disclose is likely to result in a clear, imminent risk of serious physical injury or death of the victim or another person. Any sexual assault advocate participating in good faith in the disclosing of records and communications under this section shall have immunity from any liability, civil, criminal, or otherwise, that might result from the action. In any proceeding, civil or criminal, arising out of a disclosure under this section, the good faith of the sexual assault advocate who disclosed the confidential communication shall be presumed.
(8) A domestic violence advocate may not, without the consent of the victim, be examined as to any communication between the victim and the domestic violence advocate.
(a) For purposes of this section, "domestic violence advocate" means an employee or supervised volunteer from a community-based domestic violence program or human services program that provides information, advocacy, counseling, crisis intervention, emergency shelter, or support to victims of domestic violence and who is not employed by, or under the direct supervision of, a law enforcement agency, a prosecutor's office, or the child protective services section of the department of social and health services as defined in RCW 26.44.020.
(b) A domestic violence advocate may disclose a confidential communication without the consent of the victim if failure to disclose is likely to result in a clear, imminent risk of serious physical injury or death of the victim or another person. This section does not relieve a domestic violence advocate from the requirement to report or cause to be reported an incident under RCW 26.44.030(1) or to disclose relevant records relating to a child as required by RCW 26.44.030(14). Any domestic violence advocate participating in good faith in the disclosing of communications under this subsection is immune from liability, civil, criminal, or otherwise, that might result from the action. In any proceeding, civil or criminal, arising out of a disclosure under this subsection, the good faith of the domestic violence advocate who disclosed the confidential communication shall be presumed.
(9) A mental health counselor, independent clinical social worker, or marriage and family therapist licensed under chapter 18.225 RCW may not disclose, or be compelled to testify about, any information acquired from persons consulting the individual in a professional capacity when the information was necessary to enable the individual to render professional services to those persons except:
(a) With the written authorization of that person or, in the case of death or disability, the person's personal representative;
(b) If the person waives the privilege by bringing charges against the mental health counselor licensed under chapter 18.225 RCW;
(c) In response to a subpoena from the secretary of health. The secretary may subpoena only records related to a complaint or report under RCW 18.130.050;
(d) As required under chapter 26.44 or 74.34 RCW or RCW 71.05.360 (8) and (9); or
(e) To any individual if the mental health counselor, independent clinical social worker, or marriage and family therapist licensed under chapter 18.225 RCW reasonably believes that disclosure will avoid or minimize an imminent danger to the health or safety of the individual or any other individual; however, there is no obligation on the part of the provider to so disclose.
(10) An individual who acts as a sponsor providing guidance, emotional support, and counseling in an individualized manner to a person participating in an alcohol or drug addiction recovery fellowship may not testify in any civil action or proceeding about any communication made by the person participating in the addiction recovery fellowship to the individual who acts as a sponsor except with the written authorization of that person or, in the case of death or disability, the person's personal representative.

NOTES:

Rules of court: Cf. CR 43(g).
Effective dates2016 sp.s. c 29: See note following RCW 71.05.760.
Short titleRight of action2016 sp.s. c 29: See notes following RCW 71.05.010.
Part headings not lawSeverability2008 c 6: See RCW 26.60.900 and 26.60.901.
Intent2006 c 259: "The legislature intends, by amending RCW 5.60.060, to recognize that advocates help domestic violence victims by giving them the support and counseling they need to recover from their abuse, and by providing resources to achieve protection from further abuse. Without assurance that communications made with a domestic violence advocate will be confidential and protected from disclosure, victims will be deterred from confiding openly or seeking information and counseling, resulting in a failure to receive vital advocacy and support needed for recovery and protection from abuse. But investigative or prosecutorial functions performed by individuals who assist victims in the criminal legal system and in other state agencies are different from the advocacy and counseling functions performed by advocates who work under the auspices or supervision of a community victim services program. The legislature recognizes the important role played by individuals who assist victims in the criminal legal system and in other state agencies, but intends that the testimonial privilege not be extended to individuals who perform an investigative or prosecutorial function." [ 2006 c 259 § 1.]
FindingsIntentSeverabilityApplicationConstructionCaptions, part headings, subheadings not lawAdoption of rulesEffective dates2005 c 504: See notes following RCW 71.05.027.
AlphabetizationCorrection of references2005 c 504: See note following RCW 71.05.020.
RecommendationsApplicationEffective date2001 c 286: See notes following RCW 71.09.015.
Severability1997 c 338: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [ 1997 c 338 § 74.]
Effective dates1997 c 338: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 1997, except sections 10, 12, 18, 24 through 26, 30, 38, and 59 of this act which take effect July 1, 1998." [ 1997 c 338 § 75.]
FindingEvaluationReport1997 c 338: See note following RCW 13.40.0357.
Severability1989 c 271: See note following RCW 9.94A.510.
PreambleReport to legislatureApplicabilitySeverability1986 c 305: See notes following RCW 4.16.160.
Severability1982 c 56: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [ 1982 c 56 § 2.]
Maternal mortality review panelAttendees and participants: RCW 70.54.450.
Nonsupport or family desertion, spouse or domestic partner as witness: RCW 26.20.071.
OptometristClient, privileged communications: RCW 18.53.200.
PsychologistClient, privileged communications: RCW 18.83.110.
Report of abuse of children: Chapter 26.44 RCW.



Mediation.

(1) If there is a court order to mediate, a written agreement between the parties to mediate, or if mediation is mandated under RCW 7.70.100, then any communication made or materials submitted in, or in connection with, the mediation proceeding, whether made or submitted to or by the mediator, a mediation organization, a party, or any person present, are privileged and confidential and are not subject to disclosure in any judicial or administrative proceeding except:
(a) When all parties to the mediation agree, in writing, to disclosure;
(b) When the written materials or tangible evidence are otherwise subject to discovery, and were not prepared specifically for use in and actually used in the mediation proceeding;
(c) When a written agreement to mediate permits disclosure;
(d) When disclosure is mandated by statute;
(e) When the written materials consist of a written settlement agreement or other agreement signed by the parties resulting from a mediation proceeding;
(f) When those communications or written materials pertain solely to administrative matters incidental to the mediation proceeding, including the agreement to mediate; or
(g) In a subsequent action between the mediator and a party to the mediation arising out of the mediation.
(2) When there is a court order, a written agreement to mediate, or when mediation is mandated under RCW 7.70.100, as described in subsection (1) of this section, the mediator or a representative of a mediation organization shall not testify in any judicial or administrative proceeding unless:
(a) All parties to the mediation and the mediator agree in writing; or
(b) In an action described in subsection (1)(g) of this section.
(3) Beginning on January 1, 2006, this section governs only mediations pursuant to a referral or an agreement made before January 1, 2006. Mediations pursuant to a referral or an agreement made on or after January 1, 2006, are governed by chapter 7.07 RCW.

NOTES:

Short titleEffective date2005 c 172: See RCW 7.07.900 and 7.07.904.
FindingsIntent1993 c 492: See notes following RCW 43.20.050.
Short titleSavingsReservation of legislative powerEffective dates1993 c 492: See RCW 43.72.910 through 43.72.915.
Severability1991 c 321: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [ 1991 c 321 § 3.]



Mediation by agencyPrivilege and confidentiality.

Notwithstanding the provisions of RCW 5.60.070 and chapter 7.07 RCW, when any party participates in mediation conducted by a state or federal agency under the provisions of a collective bargaining law or similar statute, the agency's rules govern questions of privilege and confidentiality.

NOTES:

Short titleEffective date2005 c 172: See RCW 7.07.900 and 7.07.904.
Severability1991 c 321: See note following RCW 5.60.070.