Rules of Evidence

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RULES OF EVIDENCE (ER)

TABLE OF RULES

TITLE 1
GENERAL PROVISIONS
Rule
101 Scope
102 Purpose and Construction
103 Rulings on Evidence
104 Preliminary Questions
105 Limited Admissibility
106 Remainder of or Related Writings or Recorded Statements

TITLE 2
JUDICIAL NOTICE

201 Judicial Notice of Adjudicative Facts

TITLE 3
PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS

301 Presumptions in General in Civil Actions and Proceedings (Reserved)
302 Applicability of State Law in Civil Actions and Proceedings (Reserved)

TITLE 4
RELEVANCY AND ITS LIMITS

401 Definition of “Relevant Evidence”
402 Relevant Evidence Generally Admissible; Irrelevant Evidence
Inadmissible
403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or
Waste of Time
404 Character Evidence Not Admissible To Prove Conduct; Exceptions; Other
Crimes
405 Methods of Proving Character
406 Habit; Routine Practice
407 Subsequent Remedial Measures
408 Compromise and Offers To Compromise
409 Payment of Medical and Similar Expenses
410 Inadmissibility of Pleas, Offers of Pleas, and Related Statements
411 Liability Insurance
412 Sexual Offenses–Victim’s Past Behavior

TITLE 5
PRIVILEGES

501 General Rule
502 Attorney-Client Privilege and Work Product; Limitations on Waiver

TITLE 6
WITNESSES

601 General Rule of Competency
602 Lack of Personal Knowledge
603 Oath or Affirmation
604 Interpreters
605 Competency of Judge as Witness
606 Competency of Juror as Witness
607 Who May Impeach
608 Evidence of Character and Conduct of Witness
609 Impeachment by Evidence of Conviction of Crime
610 Religious Beliefs or Opinions
611 Mode and Order of Interrogation and Presentation
612 Writing Used To Refresh Memory
613 Prior Statements of Witnesses
614 Calling and Interrogation of Witnesses by Court
615 Exclusion of Witnesses

TITLE 7
OPINIONS AND EXPERT TESTIMONY

701 Opinion Testimony by Lay Witnesses
702 Testimony by Experts
703 Bases of Opinion Testimony by Experts
704 Opinion on Ultimate Issue
705 Disclosure of Facts or Data Underlying Expert Opinion
706 Court Appointed Experts

TITLE 8
HEARSAY

801 Definitions
802 Hearsay Rule
803 Hearsay Exceptions; Availability of Declarant Immaterial
804 Hearsay Exceptions; Declarant Unavailable
805 Hearsay Within Hearsay
806 Attacking and Supporting Credibility of Declarant
807 Child Victims or Witnesses (Reserved)

TITLE 9
AUTHENTICATION, IDENTIFICATION AND ADMISSION OF EXHIBITS

901 Requirement of Authentication or Identification
902 Self-Authentication
903 Subscribing Witness’ Testimony Unnecessary
904 Admissibility of Documents

TITLE 10
CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

1001 Definitions
1002 Requirement of Original
1003 Admissibility of Duplicates
1004 Admissibility of Other Evidence of Contents
1005 Public Records
1006 Summaries
1007 Testimony or Written Admission of Party
1008 Functions of Court and Jury

TITLE 11
MISCELLANEOUS RULES

1101 Applicability of Rules
1102 Amendments (Reserved)
1103 Title

INTRODUCTORY COMMENT
[1979]

[Deleted effective September 1, 2006.]

RULE ER 101
SCOPE

These rules govern proceedings in the courts of the state of
Washington to the extent and with the exceptions stated in rule 1101.

[Adopted effective April 2, 1979]

Comment 101

[Deleted effective September 1, 2006.]

RULE ER 102
PURPOSE AND CONSTRUCTION

These rules shall be construed to secure fairness in
administration, elimination of unjustifiable expense and delay,
and promotion of growth and development of the law of evidence to
the end that the truth may be ascertained and proceedings justly
determined.

[Adopted effective April 2, 1979]

Comment 102

[Deleted effective September 1, 2006.]

RULE ER 103
RULINGS ON EVIDENCE

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike is
made, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence
was made known to the court by offer or was apparent from the context within which questions were asked.

(b) Record of Offer and Ruling. The court may add any other or further statement which shows the
character of the evidence, the form in which it was offered, the objection made, and the ruling thereon.
The court may direct the making of an offer in question and answer form.

(c) Hearing of Jury. In jury cases, proceedings shall be conducted, to the extent practicable,
so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements
or offers of proof or asking questions in the hearing of the jury.

(d) Errors Raised for the First Time on Review.
[Reserved – See RAP 2.5(a).]

[Adopted effective April 2, 1979]

Comment 103

[Deleted effective September 1, 2006.]

RULE ER 104
PRELIMINARY QUESTIONS

(a) Questions of Admissibility Generally. Preliminary
questions concerning the qualification of a person to be a
witness, the existence of a privilege, or the admissibility of
evidence shall be determined by the court, subject to the
provisions of section (b). In making its determination it is not
bound by the Rules of Evidence except those with respect to privileges.

(b) Relevancy Conditioned on Fact. When the relevancy of
evidence depends upon the fulfillment of a condition of fact, the
court shall admit it upon, or subject to, the introduction of
evidence sufficient to support a finding of the fulfillment of
the condition.

(c) Hearing of Jury. Hearings on the admissibility of
confessions shall in all cases be conducted out of the hearing of
the jury. Hearings on other preliminary matters shall be so
conducted when the interests of justice require or, when an
accused is a witness and so requests.

(d) Testimony by Accused. The accused does not, by testifying
upon a preliminary matter, become subject to cross examination as
to other issues in the case.

(e) Weight and Credibility. This rule does not limit the
right of a party to introduce before the jury evidence relevant
to weight or credibility.

[Amended effective September 1, 1992.]

Comment 104

[Deleted effective September 1, 2006.]

RULE ER 105
LIMITED ADMISSIBILITY

When evidence which is admissible as to one party or for one
purpose but not admissible as to another party or for another
purpose is admitted, the court, upon request, shall restrict the
evidence to its proper scope and instruct the jury accordingly.

[[Adopted effective April 2, 1979.]

Comment 105

[Deleted effective September 1, 2006.]

RULE ER 106
REMAINDER OF OR RELATED WRITINGS
OR RECORDED STATEMENTS

When a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require the party at
that time to introduce any other part, or any other writing or
recorded statement, which ought in fairness to be considered
contemporaneously with it.

[Adopted effective April 2, 1979.]

Comment 106

[Deleted effective September 1, 2006.]

RULE ER 201
JUDICIAL NOTICE OF ADJUDICATIVE FACTS

(a) Scope of Rule. This rule governs only judicial notice of
adjudicative facts.

(b) Kinds of Facts. A judicially noticed fact must be one not
subject to reasonable dispute in that it is either (1) generally
known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.

(c) When Discretionary. A court may take judicial notice,
whether requested or not.

(d) When Mandatory. A court shall take judicial notice if
requested by a party and supplied with the necessary information.

(e) Opportunity To Be Heard. A party is entitled upon timely
request to an opportunity to be heard as to the propriety of
taking judicial notice and the tenor of the matter noticed. In
the absence of prior notification, the request may be made after
judicial notice has been taken.

(f) Time of Taking Notice. Judicial notice may be taken at
any stage of the proceeding.

[Adopted effective April 2, 1979.]

Comment 201

[Deleted effective September 1, 2006.]

RULE ER 301
PRESUMPTIONS IN GENERAL IN CIVIL ACTIONS
AND PROCEEDINGS

(RESERVED)

[Adopted effective April 2, 1979.]

Comment 301

[Deleted effective September 1, 2006.]

RULE ER 302
APPLICABILITY OF STATE LAW IN CIVIL ACTIONS
AND PROCEEDINGS

[RESERVED]

[Adopted effective April 2, 1979.]

Comment 302

[Deleted effective September 1, 2006.]

RULE ER 401
DEFINITION OF “RELEVANT EVIDENCE”

“Relevant evidence” means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.

[Adopted effective April 2, 1979.]

Comment 401

[Deleted effective September 1, 2006.]

RULE ER 402
RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT
EVIDENCE INADMISSIBLE

All relevant evidence is admissible, except as limited by
constitutional requirements or as otherwise provided by statute,
by these rules, or by other rules or regulations applicable in
the courts of this state. Evidence which is not relevant is not admissible.

[Adopted effective April 2, 1979.]

Comment 402

[Deleted effective September 1, 2006.]

RULE ER 403
EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE,
CONFUSION, OR WASTE OF TIME

Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.

[Adopted effective April 2, 1979.]

Comment 403

[Deleted effective September 1, 2006.]

RULE ER 404
CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT;
EXCEPTIONS; OTHER CRIMES

(a) Character Evidence Generally. Evidence of a person’s
character or a trait of character is not admissible for the
purpose of proving action in conformity therewith on a particular
occasion, except:

(1) Character of Accused. Evidence of a pertinent trait of
character offered by an accused, or by the prosecution to rebut the same;

(2) Character of Victim. Evidence of a pertinent trait of
character of the victim of the crime offered by an accused, or by
the prosecution to rebut the same, or evidence of a character
trait of peacefulness of the victim offered by the prosecution in
a homicide case to rebut evidence that the victim was the first aggressor;

(3) Character of Witness. Evidence of the character of a
witness, as provided in rules 607, 608, and 609.

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.

[Amended effective September 1, 1992.]

Comment 404

[Deleted effective September 1, 2006.]

RULE ER 405
METHODS OF PROVING CHARACTER

(a) Reputation. In all cases in which evidence of character
or a trait of character of a person is admissible, proof may be
made by testimony as to reputation. On cross examination, inquiry
is allowable into relevant specific instances of conduct.

(b) Specific Instances of Conduct. In cases in which
character or a trait of character of a person is an essential
element of a charge, claim, or defense, proof may also be made of
specific instances of that person’s conduct.

[Amended effective September 1, 1992.]

Comment 405

[Deleted effective September 1, 2006.]

RULE ER 406
HABIT; ROUTINE PRACTICE

Evidence of the habit of a person or of the routine practice
of an organization, whether corroborated or not and regardless of
the presence of eyewitnesses, is relevant to prove that the
conduct of the person or organization on a particular occasion
was in conformity with the habit or routine practice.

[Adopted effective April 2, 1979.]

Comment 406

[Deleted effective September 1, 2006.]

RULE ER 407
SUBSEQUENT REMEDIAL MEASURES

When, after an event, measures are taken which, if taken
previously, would have made the event less likely to occur,
evidence of the subsequent measures is not admissible to prove
negligence or culpable conduct in connection with the event. This
rule does not require the exclusion of evidence of subsequent
measures when offered for another purpose, such as proving
ownership, control, or feasibility of precautionary measures, if
controverted, or impeachment.

[Adopted effective April 2, 1979.]

Comment 407

[Deleted effective September 1, 2006.]

ER 408
COMPROMISE AND OFFERS TO COMPROMISE

In a civil case, evidence of (1) furnishing or offering or promising to
furnish, or (2) accepting or offering or promising to accept a valuable
consideration in compromising or attempting to compromise a claim which was
disputed as to either validity or amount, is not admissible to prove liability
for or invalidity of the claim or its amount. Evidence of conduct or statements
made in compromise negotiations is likewise not admissible. This rule does not
require exclusion of any evidence otherwise discoverable merely because it is
presented in the course of compromise negotiations. This rule also does not
require exclusion when the evidence is offered for another purpose, such as
proving bias or prejudice of a witness, negating a contention of undue delay,
or proving an effort to obstruct a criminal investigation or prosecution.

[Adopted effective April 2, 1979; amended effective September 1, 2008]

Comment 408

[Deleted effective September 1, 2006.]

RULE ER 409
PAYMENT OF MEDICAL AND SIMILAR EXPENSES

Evidence of furnishing or offering or promising to pay
medical, hospital, or similar expenses occasioned by an injury is
not admissible to prove liability for the injury.

[Adopted effective April 2, 1979.]

Comment 409

[Deleted effective September 1, 2006.]

ER 410
INADMISSIBILITY OF PLEAS, OFFERS OF PLEAS,
AND RELATED STATEMENTS

(a) General. Except as otherwise provided in this rule, evidence of a plea of
guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead
guilty or nolo contendere to the crime charged or any other crime, or of
statements made in connection with, and relevant to, any of the foregoing pleas
or offers, is not admissible in any civil or criminal proceeding against the
person who made the plea or offer. However, evidence of a statement made in
connection with, and relevant to, a plea of guilty, later withdrawn, a plea of
nolo contendere, or an offer to plead guilty or nolo contendere to the crime
charged or any other crime, is admissible in a criminal proceeding for perjury
or false statement if the statement was made by the defendant under oath and in
the presence of counsel. This rule does not govern the admissibility of
evidence of a deferred sentence imposed under RCW 3.66.067 or RCW 9.95.200-.240.

(b) Statutory Offers of Compromise. Evidence of payment or an offer or
agreement to pay (i) to compromise a misdemeanor pursuant to RCW Chapter 10.22,
or (ii) for a liability described in RCW 4.24.230, shall not be admissible in
any civil or criminal proceeding.

[Adopted effective April 2, 1979. Amended effective September 1, 2008]

Comment 410

[Deleted effective September 1, 2006.]

RULE ER 411
LIABILITY INSURANCE

Evidence that a person was or was not insured against
liability is not admissible upon the issue whether the person
acted negligently or otherwise wrongfully. This rule does not
require the exclusion of evidence of insurance against liability
when offered for another purpose, such as proof of agency,
ownership, or control, or bias or prejudice of a witness.

[Amended effective September 1, 1992.]

Comment 411

[Deleted effective September 1, 2006.]

ER 412
SEXUAL OFFENSES – VICTIM’S PAST BEHAVIOR

(a) Criminal Cases. [Reserved. See RCW 9A.44.020.]

(b) Civil Cases; Evidence Generally Inadmissible. The
following evidence is not admissible in any civil proceeding
involving alleged sexual misconduct except as provided in
sections (c) and (d):

(1) Evidence offered to prove that any alleged victim
engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim’s
sexual predisposition.

(c) Exceptions. In a civil case, evidence offered to
prove the sexual behavior or sexual predisposition of any alleged
victim is admissible if it is otherwise admissible under these
rules and its probative value substantially outweighs the danger
of harm to any victim and of unfair prejudice to any party.
Evidence of an alleged victim’s reputation is admissible only if
it has been placed in controversy by the alleged victim.
(d) Procedure to determine admissibility.

(1) A party intending to offer evidence under section (c) must:

(A) file a written motion at least 14 days before trial
specifically describing the evidence and stating the purpose for
which it is offered unless the court, for good cause, requires a
different time for filing or permits filing during trial; and

(B) serve the motion on all parties and notify the
alleged victim or, when appropriate, the alleged victim’s
guardian or representative.

(2) Before admitting evidence under this rule the court
must conduct a hearing in camera and afford the victim and
parties a right to attend and be heard. The motion, related
papers, and the record of the hearing must be sealed and remain
under seal unless the court orders otherwise.

[Adopted effective September 1, 1988.]

Comment 412

[Deleted effective September 1, 2003.]

RULE ER 501
GENERAL RULE

The following citations are to certain statutes that make reference to
privileges or privileged communications. This list is not intended to create
any privilege, nor to abrogate any privilege by implication or omission.

(a) Attorney-Client. (Reserved. See RCW 5.60.060(2).)

(b) Clergyman or Priest. (Reserved. See RCW 5.60.060(3), 26.44.060, 70.124.060.)

(c) Dispute Resolution Center. (Reserved. See RCW 7.75.050.)

(d) Counselor. (Reserved. See RCW 18.19.180.)

(e) Higher Education Procedures. (Reserved. See RCW 28B.19.120(4).)

(f) Spouse or Domestic Partner. (Reserved. See RCW 5.60.060(1), 26.20.071, 26.21A275(8).)

(g) Interpreter in Legal Proceeding. (Reserved. See RCW 2.42.160; GR 11.1(e).)

(h) Journalist. (Reserved. See RCW 5.68.010.)

(i) Optometrist-Patient. (Reserved. See RCW 18.53.200, 26.44.060.)

(j) Physician-Patient. (Reserved. See RCW 5.60.060(4), 26.26.120, 26.44.060, 51.04.050,
69.41.020, 69.50.403, 70.124.060, 71.05.250.)

(k) Psychologist-Client. (Reserved. See RCW 18.83.110, 26.44.060, 70.124.060.)

(l) Public Assistance Recipient. (Reserved. See RCW 74.04.060.)

(m) Public Officer. (Reserved. See RCW 5.60.060(5).)

(n) Registered Nurse. (Reserved. See RCW 5.62.010, 5.62.020, 5.62.030.)

[Adopted effective September 1, 1988; amended effective September 1, 1992; January 4, 2005; September 1, 2012.]

Comment 501

[Deleted effective September 1, 2006.]

ER 502
ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT; LIMITATIONS ON WAIVER

The following provisions apply, in the circumstances set out, to
disclosure of a communication or information covered by the attorney-client
privilege or work-product protection.

(a) Disclosure Made in a Washington Proceeding or to a Washington Office
or Agency; Scope of a Waiver. When the disclosure is made in a Washington
proceeding or to a Washington office or agency and waives the attorney-client
privilege or work-product protection, the waiver extends to an undisclosed
communication or information in any proceeding only if:

(1) the waiver is intentional;

(2) the disclosed and undisclosed communications or information concern
the same subject matter; and

(3) they should, in fairness, be considered together.

(b) Inadvertent Disclosure. When made in a Washington proceeding or to a Washington
office or agency, the disclosure does not operate as a waiver in any proceeding if:

(1) the disclosure is inadvertent;

(2) the holder of the privilege or protection took reasonable steps to
prevent disclosure; and

(3) the holder promptly took reasonable steps to rectify the error,
including (if applicable) following CR 26(b)(6).

(c) Disclosure Made in a Non-Washington Proceeding. When the disclosure
is made in a non-Washington proceeding and is not the subject of a court order
concerning waiver, the disclosure does not operate as a waiver in a Washington
proceeding if the disclosure:

(1) would not be a waiver under this rule if it had been made in a
Washington proceeding; or

(2) is not a waiver under the law of the jurisdiction where the
disclosure occurred.

(d) Controlling Effect of a Court Order. A Washington court may order
that the privilege or protection is not waived by disclosure connected with the
litigation pending before the court-in which event the disclosure is also not a
waiver in any other proceeding.

(e) Controlling Effect of a Party Agreement. An agreement on the effect
of disclosure in a Washington proceeding is binding only on the parties to the
agreement, unless it is incorporated into a court order.

(f) Definitions. In this rule:

(1) “attorney-client privilege” means the protection that applicable
law provides for confidential attorney-client communications; and

(2) “work-product protection” means the protection that applicable law
provides for tangible material (or its intangible equivalent) prepared
in anticipation of litigation or for trial.

[Adopted effective September 1, 2010]

RULE ER 601
GENERAL RULE OF COMPETENCY

Every person is competent to be a witness except as otherwise
provided by statute or by court rule.

[Adopted effective April 2, 1979.]

Comment 601

[Deleted effective September 1, 2006.]

RULE ER 602
LACK OF PERSONAL KNOWLEDGE

A witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness has
personal knowledge of the matter. Evidence to prove personal
knowledge may, but need not, consist of the witness’ own
testimony. This rule is subject to the provisions of rule 703,
relating to opinion testimony by expert witnesses.

[Amended effective September 1, 1992.]

Comment 602

[Deleted effective September 1, 2006.]

RULE ER 603
OATH OR AFFIRMATION

Before testifying, every witness shall be required to declare
that the witness will testify truthfully, by oath or affirmation
administered in a form calculated to awaken the witness’
conscience and impress the witness’ mind with the duty to do so.

[Amended effective September 1, 1992.]

Comment 603

[Deleted effective September 1, 2006.]

RULE ER 604
INTERPRETERS

An interpreter is subject to the provisions of these rules
relating to qualification as an expert and the administration of
an oath or affirmation to make a true translation.

[Amended effective September 1, 1992.]

Comment 604

[Deleted effective September 1, 2006.]

RULE ER 605
COMPETENCY OF JUDGE AS WITNESS

The judge presiding at the trial may not testify in that
trial as a witness. No objection need be made in order to
preserve the point.

[Adopted effective April 2, 1979.]

Comment 605

[Deleted effective September 1, 2006.]

RULE ER 606
COMPETENCY OF JUROR AS WITNESS

A member of the jury may not testify as a witness before that
jury in the trial of the case in which the juror is sitting. If
the juror is called so to testify, the opposing party shall be
afforded an opportunity to object out of the presence of the jury.

[Amended effective September 1, 1992.]

Comment 606

[Deleted effective September 1, 2006.]

RULE ER 607
WHO MAY IMPEACH

The credibility of a witness may be attacked by any party,
including the party calling the witness.

[Amended effective September 1, 1992.]

Comment 607

[Deleted effective September 1, 2006.]

RULE ER 608
EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS

(a) Reputation Evidence of Character. The credibility of a
witness may be attacked or supported by evidence in the form of
reputation, but subject to the limitations: (1) the evidence may
refer only to character for truthfulness or untruthfulness, and
(2) evidence of truthful character is admissible only after the
character of the witness for truthfulness has been attacked by
reputation evidence or otherwise.

(b) Specific Instances of Conduct. Specific instances of the
conduct of a witness, for the purpose of attacking or supporting
the witness’ credibility, other than conviction of crime as
provided in rule 609, may not be proved by extrinsic evidence.
They may, however, in the discretion of the court, if probative
of truthfulness or untruthfulness, be inquired into on cross
examination of the witness (1) concerning the witness’ character
for truthfulness or untruthfulness, or (2) concerning the
character for truthfulness or untruthfulness of another witness
as to which character the witness being cross-examined has testified.

[Amended effective September 1, 1992.]

Comment 608

[Deleted effective September 1, 2006.]

RULE ER 609
IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME

(a) General Rule. For the purpose of attacking the
credibility of a witness in a criminal or civil case, evidence
that the witness has been convicted of a crime shall be admitted
if elicited from the witness or established by public record
during examination of the witness but only if the crime (1) was
punishable by death or imprisonment in excess of 1 year under the
law under which the witness was convicted, and the court
determines that the probative value of admitting this evidence
outweighs the prejudice to the party against whom the evidence is
offered, or (2) involved dishonesty or false statement,
regardless of the punishment.

(b) Time Limit. Evidence of a conviction under this rule is
not admissible if a period of more than 10 years has elapsed
since the date of the conviction or of the release of the witness
from the confinement imposed for that conviction, whichever is
the later date, unless the court determines, in the interests of
justice, that the probative value of the conviction supported by
specific facts and circumstances substantially outweighs its
prejudicial effect. However, evidence of a conviction more than
10 years old as calculated herein, is not admissible unless the
proponent gives to the adverse party sufficient advance written
notice of intent to use such evidence to provide the adverse
party with a fair opportunity to contest the use of such evidence.

(c) Effect of Pardon, Annulment, or Certificate of
Rehabilitation. Evidence of a conviction is not admissible under
this rule if (1) the conviction has been the subject of a pardon,
annulment, certificate of rehabilitation, or other equivalent
procedure based on a finding of the rehabilitation of the person
convicted, and that person has not been convicted of a subsequent
crime which was punishable by death or imprisonment in excess of
1 year, or (2) the conviction has been the subject of a pardon,
annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile Adjudications. Evidence of juvenile
adjudications is generally not admissible under this rule. The
court may, however, in a criminal case allow evidence of a
finding of guilt in a juvenile offense proceeding of a witness
other than the accused if conviction of the offense would be
admissible to attack the credibility of an adult and the court is
satisfied that admission in evidence is necessary for a fair
determination of the issue of guilt or innocence.

(e) Pendency of Appeal. The pendency of an appeal therefrom
does not render evidence of a conviction inadmissible. Evidence
of the pendency of an appeal is admissible.

[Amended effective September 1, 1988

Comment 609

[Deleted effective September 1, 2006.]

RULE ER 610
RELIGIOUS BELIEFS OR OPINIONS

Evidence of the beliefs or opinions of a witness on matters
of religion is not admissible for the purpose of showing that by
reason of their nature the witness’ credibility is impaired or enhanced.

[Amended effective September 1, 1992.]

Comment 610

[Deleted effective September 1, 2006.]

RULE 611
MODE AND ORDER OF INTERROGATION
AND PRESENTATION

(a) Control by Court. The court shall exercise reasonable
control over the mode and order of interrogating witnesses and
presenting evidence so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth, (2)
avoid needless consumption of time, and (3) protect witnesses
from harassment or undue embarrassment.

(b) Scope of Cross Examination. Cross examination should be
limited to the subject matter of the direct examination and
matters affecting the credibility of the witness. The court
may, in the exercise of discretion, permit inquiry into
additional matters as if on direct examination.

(c) Leading Questions. Leading questions should not be used
on the direct examination of a witness except as may be
necessary to develop the witness’ testimony. Ordinarily leading
questions should be permitted on cross examination. When a
party calls a hostile witness, an adverse party, or a witness
identified with an adverse party, interrogation may be by
leading questions.

[Amended effective September 1, 1992.]

Comment 611

[Deleted effective September 1, 2006.]

RULE 612
WRITING USED TO REFRESH MEMORY

If a witness uses a writing to refresh memory for the purpose of
testifying, either: while testifying, or before testifying, if the
court in its discretion determines it is necessary in the interests of
justice, an adverse party is entitled to have the writing produced at
the hearing, to inspect it, to cross-examine the witness thereon, and
to introduce in evidence those portions which relate to the testimony
of the witness. If it is claimed that the writing contains matters not
related to the subject matter of the testimony, the court shall
examine the writing in camera, excise any portions not so related, and
order delivery of the remainder to the party entitled thereto. Any
portion withheld over objections shall be preserved and made available
to the appellate court in the event of an appeal. If a writing is not
produced or delivered pursuant to order under this rule, the court
shall make any order justice requires.

[Amended effective September 1, 1992.]

Comment 612

[Deleted effective September 1, 2006.]

RULE ER 613
PRIOR STATEMENTS OF WITNESSES

(a) Examining Witness Concerning Prior Statement. In the
examination of a witness concerning a prior statement made by the
witness, whether written or not, the court may require that the
statement be shown or its contents disclosed to the witness at
that time, and on request the same shall be shown or disclosed to
opposing counsel.

(b) Extrinsic Evidence of Prior Inconsistent Statement of
Witness. Extrinsic evidence of a prior inconsistent statement by
a witness is not admissible unless the witness is afforded an
opportunity to explain or deny the same and the opposite party is
afforded an opportunity to interrogate the witness thereon, or
the interests of justice otherwise require. This provision does
not apply to admissions of a party-opponent as defined in rule 801(d)(2).

[Amended effective September 1, 1992.]

Comment 613

[Deleted effective September 1, 2006.]

RULE ER 614
CALLING AND INTERROGATION OF WITNESSES
BY COURT

(a) Calling by Court. The court may, on its own motion where
necessary in the interests of justice or on motion of a party,
call witnesses, and all parties are entitled to cross-examine
witnesses thus called.

(b) Interrogation by Court. The court may interrogate
witnesses, whether called by itself or by a party; provided,
however, that in trials before a jury, the court’s questioning
must be cautiously guarded so as not to constitute a comment on
the evidence.

(c) Objections. Objections to the calling of witnesses by the
court or to interrogation by it may be made at the time or at the
next available opportunity when the jury is not present.

[Adopted effective April 2, 1979.]

Comment 614

[Deleted effective September 1, 2006.]

RULE ER 615
EXCLUSION OF WITNESSES

At the request of a party the court may order witnesses
excluded so that they cannot hear the testimony of other
witnesses, and it may make the order of its own motion. This rule
does not authorize exclusion of (1) a party who is a natural
person, or (2) an officer or employee of a party which is not a
natural person designated as its representative by its attorney,
or (3) a person whose presence is shown by a party to be
reasonably necessary to the presentation of the party’s cause.

[Amended effective September 1, 1992.]

Comment 615

[Deleted effective September 1, 2006.]

RULE ER 701
OPINION TESTIMONY BY LAY WITNESSES

If the witness is not testifying as an expert, the witness’
testimony in the form of opinions or inferences is limited to
those opinions or inferences which are (a) rationally based on
the perception of the witness, (b) helpful to a clear
understanding of the witness’ testimony or the determination of a
fact in issue, and (c) not based on scientific, technical, or
other specialized knowledge within the scope of rule 702.

[Amended effective September 1, 1992; September 1, 2004.]

Comment 701

[Deleted effective September 1, 2006.]

RULE ER 702
TESTIMONY BY EXPERTS

If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.

[Adopted effective April 2, 1979.]

Comment 702

[Deleted effective September 1, 2006.]

RULE ER 703
BASES OF OPINION TESTIMONY BY EXPERTS

The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or made
known to the expert at or before the hearing. If of a type
reasonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject, the facts or
data need not be admissible in evidence.

[Amended effective September 1, 1992.]

Comment 703

[Deleted effective September 1, 2006.]

RULE ER704
OPINION ON ULTIMATE ISSUE

Testimony in the form of an opinion or inferences otherwise
admissible is not objectionable because it embraces an ultimate
issue to be decided by the trier of fact.

[Adopted effective April 2, 1979.]

Comment 704

[Deleted effective September 1, 2006.]

RULE ER 705
DISCLOSURE OF FACTS OR DATA UNDERLYING
EXPERT OPINION

The expert may testify in terms of opinion or inference and
give reasons therefor without prior disclosure of the underlying
facts or data, unless the judge requires otherwise. The expert
may in any event be required to disclose the underlying facts or
data on cross examination.

[Amended effective September 1, 1992.]

Comment 705

[Deleted effective September 1, 2006.]

RULE ER 706
COURT APPOINTED EXPERTS

(a) Appointment. The court may on its own motion or on the
motion of any party enter an order to show cause why expert
witnesses should not be appointed, and may request the parties to
submit nominations. The court may appoint any expert witnesses
agreed upon by the parties, and may appoint witnesses of its own
selection. An expert witness shall not be appointed by the court
unless the witness consents to act. A witness so appointed shall
be informed of the witness’ duties by the court in writing, a
copy of which shall be filed with the clerk, or at a conference
in which the parties shall have opportunity to participate. A
witness so appointed shall advise the parties of the witness’
findings, if any; the witness’ deposition may be taken by any
party; and the witness may be called to testify by the court or
any party. The witness shall be subject to cross examination by
each party, including a party calling the witness.

(b) Compensation. Expert witnesses so appointed are entitled
to reasonable compensation in whatever sum the court may allow.
Except as otherwise provided by law, the compensation shall be
paid by the parties in such proportion and at such time as the
court directs, and thereafter charged in like manner as other costs.

(c) Disclosure of Appointment. In the exercise of its
discretion, the court may authorize disclosure to the jury of the
fact that the court appointed the expert witness.

(d) Parties’ Experts of Own Selection. Nothing in this rule
limits the parties in calling expert witnesses of their own selection.

[Amended effective September 1, 1992.]

Comment 706

[Deleted effective September 1, 2006.]

RULE ER 801
DEFINITIONS

The following definitions apply under this article:
(a) Statement. A “statement” is (1) an oral or written
assertion or (2) nonverbal conduct of a person, if it is intended
by the person as an assertion.

(b) Declarant. A “declarant” is a person who makes a statement.

(c) Hearsay. “Hearsay” is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.

(d) Statements Which Are Not Hearsay. A statement is not hearsay if–

(1) Prior Statement by Witness. The declarant testifies at
the trial or hearing and is subject to cross examination
concerning the statement, and the statement is (i) inconsistent
with the declarant’s testimony, and was given under oath subject
to the penalty of perjury at a trial, hearing, or other
proceeding, or in a deposition, or (ii) consistent with the
declarant’s testimony and is offered to rebut an express or
implied charge against the declarant of recent fabrication or
improper influence or motive, or (iii) one of identification of a
person made after perceiving the person; or

(2) Admission by Party-Opponent. The statement is offered
against a party and is (i) the party’s own statement, in either
an individual or a representative capacity or (ii) a statement of
which the party has manifested an adoption or belief in its
truth, or (iii) a statement by a person authorized by the party
to make a statement concerning the subject, or (iv) a statement
by the party’s agent or servant acting within the scope of the
authority to make the statement for the party, or (v) a statement
by a coconspirator of a party during the course and in
furtherance of the conspiracy.

[Amended effective September 1, 1992.]

Comment 801

[Deleted effective September 1, 2006.]

RULE ER 802
HEARSAY RULE

Hearsay is not admissible except as provided by these rules,
by other court rules, or by statute.

[Adopted effective April 2, 1979.]

Comment 802

[Deleted effective September 1, 2006.]

RULE ER 803
HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT
IMMATERIAL

(a) Specific Exceptions. The following are not excluded by
the hearsay rule, even though the declarant is available as a witness:

(1) Present Sense Impression. A statement describing or
explaining an event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter.

(2) Excited Utterance. A statement relating to a startling
event or condition made while the declarant was under the stress
of excitement caused by the event or condition.

(3) Then Existing Mental, Emotional, or Physical Condition. A
statement of the declarant’s then existing state of mind,
emotion, sensation, or physical condition (such as intent, plan,
motive, design, mental feeling, pain, and bodily health), but not
including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution,
revocation, identification, or terms of declarant’s will.

(4) Statements for Purposes of Medical Diagnosis or
Treatment. Statements made for purposes of medical diagnosis or
treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.

(5) Recorded Recollection. A memorandum or record concerning
a matter about which a witness once had knowledge but now has
insufficient recollection to enable the witness to testify fully
and accurately, shown to have been made or adopted by the witness
when the matter was fresh in the witness’ memory and to reflect
that knowledge correctly. If admitted, the memorandum or record
may be read into evidence but may not itself be received as an
exhibit unless offered by an adverse party.

(6) Records of Regularly Conducted Activity. (Reserved. See RCW 5.45.)

(7) Absence of Entry in Records Kept in Accordance With RCW
5.45. Evidence that a matter is not included in the memoranda,
reports, records, or data compilations, in any form, kept in
accordance with the provisions of RCW 5.45, to prove the
nonoccurrence or nonexistence of the matter, if the matter was of
a kind of which a memorandum, report, record, or data compilation
was regularly made and preserved, unless the sources of
information or other circumstances indicate lack of trustworthiness.

(8) Public Records and Reports. (Reserved. See RCW 5.44.040.)

(9) Records of Vital Statistics. Records or data
compilations, in any form, of births, fetal deaths, deaths, or
marriages, if the report thereof was made to a public office
pursuant to requirements of law.

(10) Absence of Public Record or Entry. To prove the absence
of a record, report, statement, or data compilation, in any form,
or the nonoccurrence or nonexistence of a matter of which a
record, report, statement, or data compilation, in any form, was
regularly made and preserved by a public office or agency,
evidence in the form of a certification in accordance with rule
902, or testimony, that diligent search failed to disclose the
record, report, statement, or data compilation, or entry.

(11) Records of Religious Organizations. Statements of
births, marriages, divorces, deaths, legitimacy, ancestry,
relationship by blood or marriage, or other similar facts of
personal or family history, contained in a regularly kept record
of a religious organization.

(12) Marriage, Baptismal, and Similar Certificates.
Statements of fact contained in a certificate that the maker
performed a marriage or other ceremony or administered a
sacrament, made by a clergyman, public official, or other person
authorized by the rules or practices of a religious organization
or by law to perform the act certified, and purporting to have
been issued at the time of the act or within a reasonable time thereafter.

(13) Family Records. Statements of fact concerning personal
or family history contained in family Bibles, genealogies,
charts, engravings on rings, inscriptions on family portraits,
tattoos, engravings on urns, crypts, or tombstones, or the like.

(14) Records of Documents Affecting an Interest in Property.
The record of a document purporting to establish or affect an
interest in property, as proof of the content of the original
recorded document and its execution and delivery by each person
by whom it purports to have been executed, if the record is a
record of a public office and an applicable statute authorized
the recording of documents of that kind in that office.

(15) Statements in Documents Affecting an Interest in
Property. A statement contained in a document purporting to
establish or affect an interest in property if the matter stated
was relevant to the purpose of the document unless dealings with
the property since the document was made have been inconsistent
with the truth of the statement or the purport of the document.

(16) Statements in Ancient Documents. Statements in a
document in existence 20 years or more whose authenticity is established.

(17) Market Reports, Commercial Publications. Market
quotations, tabulations, lists, directories, or other published
compilations, generally used and relied upon by the public or by
persons in particular occupations.

(18) Learned Treatises. To the extent called to the attention
of an expert witness upon cross examination or relied upon by the
expert witness in direct examination, statements contained in
published treatises, periodicals, or pamphlets on a subject of
history, medicine, or other science or art, established as a
reliable authority by the testimony or admission of the witness
or by other expert testimony or by judicial notice. If admitted,
the statements may be read into evidence but may not be received as exhibits.

(19) Reputation Concerning Personal or Family History.
Reputation among members of a person’s family by blood, adoption,
or marriage, or among a person’s associates, or in the community,
concerning a person’s birth, adoption, marriage, divorce, death,
legitimacy, relationship by blood, adoption, or marriage,
ancestry, or other similar fact of a person’s personal or family history.

(20) Reputation Concerning Boundaries or General History.
Reputation in a community, arising before the controversy, as to
boundaries of or customs affecting lands in the community, and
reputation as to events of general history important to the
community or state or nation in which located.

(21) Reputation as to Character. Reputation of a person’s
character among his associates or in the community.

(22) Judgment of Previous Conviction. Evidence of a final
judgment, entered after a trial or upon a plea of guilty (but not
upon a plea of nolo contendere), adjudging a person guilty of a
crime punishable by death or imprisonment in excess of 1 year, to
prove any fact essential to sustain the judgment, but not
including, when offered by the prosecution in a criminal case for
purposes other than impeachment, judgments against persons other
than the accused. The pendency of an appeal may be shown but does
not affect admissibility.

(23) Judgment as to Personal, Family, or General History, or
Boundaries. Judgments as proof of matters of personal, family, or
general history, or boundaries, essential to the judgment, if the
same would be provable by evidence of reputation.

(b) Other Exceptions. (Reserved.)

[Amended effective September 1, 1992.]

Comment 803

[Deleted effective September 1, 2006.]

RULE 804
HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE

(a) Definition of Unavailability. “Unavailability as a witness” includes situations in which the declarant:

(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject
matter of the declarant’s statement; or

(2) Persists in refusing to testify concerning the subject matter of the declarant’s statement despite
an order of the court to do so; or

(3) Testifies to a lack of memory of the subject matter of the declarant’s statement; or

(4) Is unable to be present or to testify at the hearing because of death or then existing physical
or mental illness or infirmity; or

(5) Is absent from the hearing and the proponent of the statement has been unable to procure the declarant’s
attendance (or in the case of a hearsay exception under subsection (b)(2), (3), or (4), the declarant’s attendance or
testimony) by process or other reasonable means.

(6) A declarant is not unavailable as a witness if the exemption, refusal, claim of lack of memory,
inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose
of preventing the witness from attending or testifying.

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable
as a witness:

(1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding,
or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against
whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity
and similar motive to develop the testimony by direct, cross, or redirect examination.

(2) Statement Under Belief of Impending Death. In a trial for homicide or in a civil action or proceeding, a
statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or
circumstances of what the declarant believed to be the declarant’s impending death.

(3) Statement Against Interest. A statement which was at the time of its making so far contrary to the
declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal
liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s
position would not have made the statement unless the person believed it to be true. In a criminal case, a statement
tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly
indicate the trustworthiness of the statement.

(4) Statement of Personal or Family History. (i) A statement concerning the declarant’s own birth, adoption,
marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal
or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (ii) a
statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other
by blood, adoption, or marriage or was so intimately associated with the others family as to be likely to have accurate
information concerning the matter declared.

(5) Other Exceptions. (Reserved.)

(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged directly or indirectly in
wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

[Amended effective September 1, 1992; September 1, 2013.]

Comment 804 [Deleted effective September 1, 2006.]

RULE ER 805
HEARSAY WITHIN HEARSAY

Hearsay included within hearsay is not excluded under the
hearsay rule if each part of the combined statements conforms
with an exception to the hearsay rule provided in these rules.

[Adopted effective April 2, 1979.]

Comment 805

[Deleted effective September 1, 2006.]

RULE 806
ATTACKING AND SUPPORTING CREDIBILITY
OF DECLARANT

When a hearsay statement, or a statement defined in rule
801(d)(2)(iii), (iv), or (v), has been admitted in evidence, the
credibility of the declarant may be attacked, and if attacked
may be supported, by any evidence which would be admissible for
those purposes if declarant had testified as a witness. Evidence
of a statement or conduct by the declarant at any time,
inconsistent with the declarant’s hearsay statement, is not
subject to any requirement that the declarant may have been
afforded an opportunity to deny or explain. If the party against
whom a hearsay statement has been admitted calls the declarant
as a witness, the party is entitled to examine the declarant on
the statement as if under cross examination.

[Amended effective September 1, 1992.]

Comment 806

[Deleted effective September 1, 2006.]

RULE ER 807
CHILD VICTIMS OR WITNESSES

(Reserved. See RCW 9A.44.120.)

[Adopted effective September 1, 1988.]

Comment 807

[Deleted effective September 1, 2006.]

RULE ER 901
REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION

(a) General Provision. The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.

(b) Illustrations. By way of illustration only, and not by way of limitation, the following are
examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of Witness With Knowledge. Testimony that a matter is what it is claimed to be.

(2) Nonexpert Opinion on Handwriting. Nonexpert opinion as to the genuineness of handwriting,
based upon familiarity not acquired for purposes of the litigation.

(3) Comparison by Court or Expert Witness. Comparison by the court or by expert witnesses with
specimens which have been authenticated.

(4) Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns,
or other distinctive characteristics, taken in conjunction with circumstances.

(5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical
or electronic transmission or recording, by opinion based upon hearing the voice at any time under
circumstances connecting it with the alleged speaker.

(6) Telephone Conversations. Telephone conversations, by evidence that a call was made to the number
assigned at the time by the telephone company to a particular person or business, if (i) in the case
of a person, circumstances, including self-identification, show the person answering to be the one called,
or (ii) in the case of a business, the call was made to a place of business and the conversation related
to business reasonably transacted over the telephone.

(7) Public Records or Reports. (Reserved. See RCW 5.44 and CR 44.) (8) Ancient Documents or
Data Compilation. Evidence that a document or data compilation, in any form, (i) is in such condition as
to create no suspicion concerning its authenticity, (ii) was in a place where it, if authentic, would
likely be, and (iii) has been in existence 20 years or more at the time it is offered.

(9) Process or System. Evidence describing a process or system used to produce a result and showing
that the process or system produces an accurate result.

(10) Electronic Mail (E-mail). Testimony by a person with knowledge that (i) the e-mail purports to
be authored or created by the particular sender or the sender’s agent; (ii) the e-mail purports to be
sent from an e-mail address associated with the particular sender or the sender’s agent; and (iii) the
appearance, contents, substance, internal patterns, or other distinctive characteristics of the e-mail,
taken in conjunction with the circumstances, are sufficient to support a finding that the e-mail in
question is what the proponent claims.

(11) Methods Provided by Statute or Rule. Any method of authentication or identification provided
by statute or court rule.

[Adopted effective April 2, 1979; amended effective December 10, 2013.]

Comment 901

[Deleted effective September 1, 2006.]

RULE ER 902
SELF-AUTHENTICATION

Extrinsic evidence of authenticity as a condition precedent
to admissibility is not required with respect to the following:

(a) Domestic Public Documents Under Seal. A document bearing
a seal purporting to be that of the United States, or of any
state, district, commonwealth, territory, or insular possession
thereof, or the Panama Canal Zone, or the Trust Territory of the
Pacific Islands, or of a political subdivision, department,
officer, or agency thereof, and a signature purporting to be an
attestation or execution.

(b) Domestic Public Documents Not Under Seal. A document
purporting to bear the signature in the official capacity of an
officer or employee of any entity included in section (a), having
no seal, if a public officer having a seal and having official
duties in the district or political subdivision of the officer or
employee certifies under seal that the signer has the official
capacity and that the signature is genuine.

(c) Foreign Public Documents. A document purporting to be
executed or attested in an official capacity by a person
authorized by the laws of a foreign country to make the execution
or attestation, and accompanied by a final certification as to
the genuineness of the signature and official position (1) of the
executing or attesting person, or (2) of any foreign official
whose certificate of genuineness of signature and official
position relates to the execution or attestation or is in a chain
of certificates of genuineness of signature and official position
relating to the execution or attestation. A final certification
may be made by a secretary of embassy or legation, consul
general, consul, vice-consul, or consular agent of the United
States, or a diplomatic or consular official of the foreign
country assigned or accredited to the United States. If
reasonable opportunity has been given to all parties to
investigate the authenticity and accuracy of official documents,
the court may, for good cause shown, order that they be treated
as presumptively authentic without final certification or permit
them to be evidenced by an attested summary with or without final certification.

(d) Certified Copies of Public Records. A copy of an official
record or report or entry therein, or of a document authorized by
law to be recorded or filed and actually recorded or filed in a
public office, including data compilations in any form, certified
as correct by the custodian or other person authorized to make
the certification, by certificate complying with section (a),
(b), or (c) of this rule or complying with any applicable law,
treaty or convention of the United States, or the applicable law
of a state or territory of the United States.

(e) Official Publications. Books, pamphlets, or other
publications purporting to be issued by public authority.

(f) Newspapers and Periodicals. Printed materials purporting
to be newspapers or periodicals.

(g) Trade Inscriptions and the Like. Inscriptions, signs,
tags, or labels purporting to have been affixed in the course of
business and indicating ownership, control, or origin.

(h) Acknowledged Documents. Documents accompanied by a
certificate of acknowledgment executed in the manner provided by
law by a notary public or other officer authorized by law to take acknowledgments.

(i) Commercial Paper and Related Documents. Commercial paper,
signatures thereon, and documents relating thereto to the extent
provided by general commercial law.

(j) Presumptions Created by Law. Any signature, document, or
other matter declared by any law of the United States or of this
state to be presumptively or prima facie genuine or authentic.

[Amended effective August 27, 1980; September 1, 1988; September 1, 1992.]

Comment 902

[Deleted effective September 1, 2006.]

RULE ER 903
SUBSCRIBING WITNESS’ TESTIMONY UNNECESSARY

The testimony of a subscribing witness is not necessary to
authenticate a writing unless required by the laws of the
jurisdiction whose laws govern the validity of the writing.

[Adopted effective April 2, 1979.]

Comment 903

[Deleted effective September 1, 2006.]

RULE ER 904
ADMISSIBILITY OF DOCUMENTS

(a) Certain Documents Admissible. In a civil case, any of the
following documents proposed as exhibits in accordance with
section (b) of this rule shall be deemed admissible unless
objection is made under section (c) of this rule:

(1) A bill, report made for the purpose of treatment, chart,
record of a hospital, doctor, dentist, registered nurse, licensed
practical nurse, physical therapist, psychologist or other health
care provider, on a letterhead or billhead;

(2) A bill for drugs, medical appliances or other related
expenses on a letterhead or billhead;

(3) A bill for, or an estimate of, property damage on a
letterhead or billhead. In the case of an estimate, the party
intending to offer the estimate shall forward a copy to the
adverse party with a statement indicating whether or not the
property was repaired, and if it was, whether the estimated
repairs were made in full or in part and attach a copy of the
receipted bill showing the items of repair and amounts paid;

(4) A weather or traffic signal report, or standard United
States government table;

(5) A photograph, x-ray, drawing, map, blueprint or similar
documentary evidence;

(6) A document not specifically covered by any of the
foregoing provisions but relating to a material fact and having
equivalent circumstantial guaranties of trustworthiness, the
admission of which would serve the interests of justice.

(b) Notice. Any party intending to offer a document under
this rule must serve on all parties a notice, no less than 30
days before trial, stating that the documents are being offered
under Evidence Rule 904 and shall be deemed authentic and
admissible without testimony or further identification, unless
objection is served within 14 days of the date of notice,
pursuant to ER 904(c). The notice shall be accompanied by (1)
numbered copies of the documents and (2) an index, which shall be
organized by document number and which shall contain a brief
description of the document along with the name, address and
telephone number of the document’s author or maker. The notice
shall be filed with the court. Copies of documents that accompany
the notice shall not be filed with the court.

(c) Objection to Authenticity or Admissibility. Within 14
days of notice, any other party may serve on all parties a
written objection to any document offered under section (b),
identifying each document to which objection is made by number
and brief description.

(1) If an objection is made to a document on the basis of
authentication, and if the court finds that the objection was
made without reasonable basis, the offering party shall be
entitled to an award of expenses and reasonable attorney fees
incurred as a result of the required proof of authentication as
to each such document determined to be authentic and offered as
an exhibit at the time of trial.

(2) If an objection is made to a document on the basis of
admissibility, the grounds for the objection shall be
specifically set forth, except objection on the grounds of
relevancy need not be made until trial. If the court finds that
the objection was made without reasonable basis and the document
is admitted as an exhibit at trial, the court may award the
offering party any expenses incurred and reasonable attorney fees.

(d) Effect of Rule. This rule does not restrict argument or
proof relating to the weight to be accorded the evidence
submitted, nor does it restrict the trier of fact’s authority to
determine the weight of the evidence after hearing all of the
evidence and the arguments of opposing parties.

[Adopted effective September 18, 1992; amended effective October 29, 1993; January 27, 1998.]

RULE 1001
DEFINITIONS

For purposes of this article the following definitions are applicable:

(a) Writings and Recordings. “Writings” and “recordings”
consist of letters, words, sounds, or numbers, or their
equivalent, set down by handwriting, typewriting, printing,
photostating, photographing, magnetic impulse, mechanical or
electronic recording, or other form of data compilation.

(b) Photographs. “Photographs” include still photographs,
X-ray films, videotapes, and motion pictures.

(c) Original. An “original” of a writing or recording is the
writing or recording itself or any counterpart intended to have
the same effect by a person executing or issuing it. An
“original” of a photograph includes the negative or any print
therefrom. If data are stored in a computer or similar device,
any printout or other output readable by sight, shown to reflect
the data accurately, is an “original”.

(d) Duplicate. A “duplicate” is a counterpart produced by the
same impression as the original, or from the same matrix, or by
means of photography, including enlargements and miniatures, or
by mechanical or electronic recording, or by chemical
reproduction, or by other equivalent techniques which accurately
reproduce the original.

[Amended effective August 27, 1980.]

Comment 1001

[Deleted effective September 1, 2006.]

RULE 1002
REQUIREMENT OF ORIGINAL

To prove the content of a writing, recording, or photograph,
the original writing, recording, or photograph is required,
except as otherwise provided in these rules or by rules adopted
by the Supreme Court of this state or by statute.

Comment 1002

[Deleted effective September 1, 2006.]

RULE 1003
ADMISSIBILITY OF DUPLICATES

A duplicate is admissible to the same extent as an original
unless (1) a genuine question is raised as to the authenticity of
the original or (2) in the circumstances it would be unfair to
admit the duplicate in lieu of the original.

Comment 1003

[Deleted effective September 1, 2006.]

RULE 1004
ADMISSIBILITY OF OTHER EVIDENCE OF CONTENTS

The original is not required, and other evidence of the
contents of a writing, recording, or photograph is admissible if:

(a) Original Lost or Destroyed. All originals are lost or
have been destroyed, unless the proponent lost or destroyed them
in bad faith; or

(b) Original Not Obtainable. No original can be obtained by
any available judicial process or procedure; or

(c) Original in Possession of Opponent. At a time when an
original was under the control of the party against whom offered,
that party was put on notice, by the pleadings or otherwise, that
the contents would be a subject of proof at the hearing, and that
party does not produce the original at the hearing; or

(d) Collateral Matters. The writing, recording, or photograph
is not closely related to a controlling issue.

Comment 1004

[Deleted effective September 1, 2006.]

RULE 1005
PUBLIC RECORDS

The contents of an official record, or of a document
authorized to be recorded or filed and actually recorded or
filed, including data compilations in any form, if otherwise
admissible, may be proved by copy, certified as correct in
accordance with rule 902 or testified to be correct by a witness
who has compared it with the original. If a copy which complies
with the foregoing cannot be obtained by the exercise of
reasonable diligence, then other evidence of the contents may be given.

Comment 1005

[Deleted effective September 1, 2006.]

RULE ER 1006
SUMMARIES

The contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined in court may be
presented in the form of a chart, summary, or calculation. The
originals, or duplicates, shall be made available for examination
or copying, or both, by other parties at reasonable time and
place. The court may order that they be produced in court.

Comment 1006

[Deleted effective September 1, 2006.]

RULE 1007
TESTIMONY OR WRITTEN ADMISSION OF PARTY

Contents of writings, recordings, or photographs may be
proved by the testimony or deposition of the party against whom
offered or by that party’s written admission, without accounting
for the nonproduction of the original.

Comment 1007

[Deleted effective September 1, 2006.]

RULE 1008
FUNCTIONS OF COURT AND JURY

When the admissibility of other evidence of contents of
writings, recordings, or photographs under these rules depends
upon the fulfillment of a condition of fact, the question whether
the condition has been fulfilled is ordinarily for the court to
determine in accordance with the provisions of rule 104. However,
when an issue is raised (1) whether the asserted writing ever
existed, or (2) whether another writing, recording, or photograph
produced at the trial is the original, or (3) whether other
evidence of contents correctly reflects the contents, the issue
is for the trier of fact to determine as in the case of other
issues of fact.

Comment 1008

[Deleted effective September 1, 2006.]

ER RULE 1101
APPLICABILITY OF RULES

(a) Courts Generally. Except as otherwise provided in section (c), these rules apply to all
actions and proceedings in the courts of the state of Washington. The terms “judge” and “court”
in these rules refer to any judge of any court to which these rules apply or any other officer
who is authorized by law to hold any hearing to which these rules apply.

(b) Law With Respect to Privilege. The law with respect to privileges applies at all stages of all
actions, cases, and proceedings.

(c) When Rules Need Not Be Applied. The rules (other than with respect to privileges, the rape
shield statute and ER 412) need not be applied in the following situations:

(1) Preliminary Questions of Fact. The determination of questions of fact preliminary to
admissibility of evidence when the issue is to be determined by the court under rule 104(a).

(2) Grand Jury. Proceedings before grand juries and special inquiry judges.

(3) Miscellaneous Proceedings. Proceedings for extradition or rendition; detainer proceedings under
RCW 9.100; preliminary determinations in criminal cases; sentencing, or granting or revoking probation;
issuance of warrants for arrest, criminal summonses, and search warrants; proceedings with respect to
release on bail or otherwise; contempt proceedings in which the court may act summarily; habeas corpus
proceedings; small claims court; supplemental proceedings under RCW 6.32; coroners’ inquests; preliminary
determinations in juvenile court; juvenile court hearings on declining jurisdiction; disposition, review,
and permanency planning hearings in juvenile court; dispositional determinations related to treatment
for alcoholism, intoxication, or drug addiction under RCW 70.96A; and dispositional determinations under the
Civil Commitment Act, RCW 71.05.

(4) Applications for Protection Orders. Protection order proceedings under RCW 7.90, 7.92, 10.14, 26.50
and 74.34. Provided when a judge proposes to consider information from a criminal or civil database, the
judge shall disclose the information to each party present at the hearing; on timely request; provide each
party with an opportunity to be heard; and, take appropriate measures to alleviate litigants’ safety concerns.
The judge has discretion not to disclose information that he or she does not propose to consider.

(d) Arbitration Hearings. In a mandatory arbitration hearing under RCW 7.06, the admissibility
of evidence is governed by MAR 5.3.

[Originally effective April 2, 1979. Amended effective January 1, 1980; August 27, 1980; September 1, 1989;
September 1, 1992; September 21, 1999; January 2, 2008; September 1, 2008, September 1, 2010; December 10, 2013.]

Comment 1101
[Deleted effective September 1, 2006.]

RULE 1102
AMENDMENTS

(RESERVED)

RULE 1103
TITLE

These rules may be known and cited as the Washington Rules of Evidence.
ER is the official abbreviation.

[Effective April 2, 1979.]

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