Washington's rule on evidence law turns on a feature the national template does not capture: Washington evidence practice is organized under the Washington Rules of Evidence. Relevance starts at Wash. ER 401, 403; hearsay starts at Wash. ER 801, 802. The controlling authority is Washington Rules of Evidence. Authenticity is a separate fight under Wash. ER 901, 902. Depositions at trial: Civil Rule 32 governs deposition use at trial in Washington superior courts. CrR 4.7 addresses criminal discovery; deposition testimony at trial requires Wash. ER 804(b)(1) when unavailability is established.
Contents
- General standards of admissibility
- Character evidence
- Hearsay: start with the definition
- Party admissions
- Business records
- Important hearsay exceptions that do not require unavailability
- Declarant unavailable
- Dying declarations
- Medical diagnosis or treatment statements
- Use of depositions at trial
- Authenticity: why it matters and how to prove it
- Practice checklist
- Frequently asked questions
Worked example under Washington law
The illustration below uses only rules already stated for Washington. It is a research hypothetical, not a prediction of what a court will do.
A lawyer in Washington wants to offer a medical record, a party email, and a statement the declarant made while believing death was imminent.
- Clear relevance and unfair prejudice under Wash. ER 401, 403.
- If the email is the opposing party's, test Wash. ER 801(d)(2) before the hearsay definition in Wash. ER 801, 802.
- For the medical record, lay the business-records foundation in Wash. ER 803(6) and the treatment purpose in Wash. ER 803(4).
- For the deathbed statement, meet Wash. ER 804(b)(2), then authenticate every exhibit under Wash. ER 901, 902.
Washington keeps hearsay, character, and authenticity on different rules inside the Washington Rules of Evidence. Winning one does not win the others.
General standards of admissibility
Washington starts every evidence dispute with relevance and unfair prejudice. Under Wash. ER 401, 403, evidence is relevant when it has any tendency to make a fact of consequence more or less probable, and relevant evidence is still excluded when its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time. Preliminary questions of admissibility are for the court; conditional relevance and limited-purpose instructions keep otherwise-usable proof from becoming a Trojan horse for propensity or truth-of-the-matter use.
Washington abbreviates its rules as "ER" (Evidence Rule) rather than "R. Evid." Federal courts in Washington apply the FRE, not Wash. ER.
Practice tip: articulate the theory of relevance in one sentence before citing the exception. Lawyers who lead with "it's a business record" without explaining what fact the record proves often lose the 403 balance even when the hearsay foundation is clean.
Character evidence
Character evidence in Washington is governed by Wash. ER 404, 405. The default rule is familiar: evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. The same body of law then carves out the classic exceptions — essential-element character, accused-opens-the-door reputation or opinion, and other-acts evidence offered for a non-propensity purpose such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
Other-acts notice, 403 balancing, and limiting instructions do most of the real work. In criminal cases, prosecutors who dump prior misconduct without a specific non-propensity theory invite reversal; defense counsel who open the door to good-character testimony without anticipating rebuttal create the very propensity inference the rules were designed to police.
Washington character-evidence opinions
The State of Washington v. Kha Danh Magers — Johnson, J., dissenting
The State of Washington v. Kha Danh Magers — Johnson, J., dissenting, 164 Wash. 2d 174 (2008)
…t a jury from convicting a defendant based on propensity or character evidence. We have long warned of the potential risk this type of evidence has in prejudicing the defendant and to be aware of situations “ ‘where the minute peg of relevancy will be entirely obscured by the dirty linen hung upon it.’ ” State v. Smith, 106 Wn.2d 772, 774, 725 P.2d 951 (1986) (quoting State v.…
On character evidence, The State of Washington v. Kha Danh Magers — Johnson, J., dissenting speaks to the Washington dispute in this passage: "We have long warned of the potential risk this type of evidence has in prejudicing the defendant and to be aware of situations “ ‘where the minute peg of relevancy will be entirely obscured by the dirty linen hung upon it.’ ” State v. Smith, 106 Wn.2d 772, 774, 725 P." The surrounding opinion shows how the court applied that language to the record.
The State of Washington, Respondent, v. Ivy Gail Kelly, Petitioner
The State of Washington, Respondent, v. Ivy Gail Kelly, Petitioner, 102 Wash. 2d 188 (1984)
…her the State's rebuttal testimony was properly admitted as character evidence. Insofar as relevant here, character evidence has two distinct functions: (1) to prove a pertinent trait of character and (2) to prove character as an essential element of the case.1 Also relevant here are the different methods of proving character set forth in ER 405: (1) by reputation testimony and…
The State of Washington, Respondent, v. Ivy Gail Kelly, Petitioner is worth reading on Washington character evidence because the court put the point in its own words: "State's rebuttal testimony was properly admitted as character evidence. Insofar as relevant here, character evidence has two distinct functions: (1) to prove a pertinent trait of character and (2) to prove character as an essential element of the case." Use that passage as the starting point, then read the facts that precede it.
The State of Washington v. Charles Fidel Wade, .
The State of Washington v. Charles Fidel Wade, ., 138 Wash. 2d 460 (1999)
…ER 404(b), evidence of prior bad acts is not admissible as character evidence, but “[i]t may ... be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” When assessing the admissibility of evidence under this rule, the trial court must follow the test set forth in State v. Salta…
Washington opinions such as The State of Washington v. Charles Fidel Wade, . are cited where character evidence is disputed. The court stated: "ER 404(b), evidence of prior bad acts is not admissible as character evidence, but “[i]t may ... be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." That is the language to brief; the rest of the decision supplies the procedural posture.
The State of Washington v. Alberto Perez-Valdez
The State of Washington v. Alberto Perez-Valdez, 172 Wash. 2d 808 (2011)
…s’ veracity, and (3) allow the defense to reference general character evidence about Perez-Valdez in its closing argument after the State’s untimely objection? ANALYSIS A. Standard of Review ¶9 This court reviews trial court decisions on the admission of evidence for abuse of discretion. State v. Bashaw, 169 Wn.2d 133, 140, 234 P.3d 195 (2010). We also review the decision of wh…
On character evidence, The State of Washington v. Alberto Perez-Valdez speaks to the Washington dispute in this passage: "Perez-Valdez in its closing argument after the State’s untimely objection?" The surrounding opinion shows how the court applied that language to the record.
State v. Wade
State v. Wade, 979 P.2d 850 (1999)
…ER 404(b), evidence of prior bad acts is not admissible as character evidence, but "[i]t may ... be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." When assessing the admissibility of evidence under this rule, the trial court must follow the test set forth in State v. Salta…
Washington opinions such as State v. Wade are cited where character evidence is disputed. The court stated: "ER 404(b), evidence of prior bad acts is not admissible as character evidence, but '[i]t may ... be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." That is the language to brief; the rest of the decision supplies the procedural posture.
State v. Crossguns
State v. Crossguns, 199 Wash. 2d 282 (2022)
…udies have determined that jurors pay more attention to bad character evidence than to good character evidence”) (citing MIGUEL MÉNDEZ, EVIDENCE: THE CALIFORNIA CODE AND THE FEDERAL RULES 57-59 (3d ed. 2004)). 21 No. 99396-3 (Gordon McCloud, J., dissenting) To address this high risk of prejudice, Crossguns moved to bifurcate the trial. Bifurcating the trial would have ensured t…
Practitioners open State v. Crossguns when Washington character evidence turns on the distinction in this sentence: "MIGUEL MÉNDEZ, EVIDENCE: THE CALIFORNIA CODE AND THE FEDERAL RULES 57-59 (3d ed. 2004)). 21 No. 99396-3 (Gordon McCloud, J., dissenting) To address this high risk of prejudice, Crossguns moved to bifurcate the trial." Do not lift it out of the facts the court was deciding.
The State of Washington, Respondent, v. Charles Fidel Wade, Appellant
The State of Washington, Respondent, v. Charles Fidel Wade, Appellant, 98 Wash. App. 328 (1999)
…. For this reason, we do not generally allow propensity, or character evidence, to establish a basis for criminal conviction. C. Record Here, the trial court admitted evidence of Wade’s prior offenses to prove intent. Wade offered no defense; nor did he claim mistake, inadvertent possession, or misidentification. The trial court relied on the past acts having occurred *337 with…
The State of Washington, Respondent, v. Charles Fidel Wade, Appellant is worth reading on Washington character evidence because the court put the point in its own words: "For this reason, we do not generally allow propensity, or character evidence, to establish a basis for criminal conviction. C. Record Here, the trial court admitted evidence of Wade’s prior offenses to prove intent." Use that passage as the starting point, then read the facts that precede it.
Hearsay: start with the definition
Most hearsay objections in Washington are won or lost on the definition, not on an exception. Under Wash. ER 801, 802, hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Non-hearsay purposes — verbal acts, effect on the listener, notice, circumstantial evidence of state of mind, and impeachment — remain available when the proponent can articulate them without asking the jury to believe the declarant.
Layered hearsay (hearsay within hearsay) requires an exception or exclusion for each layer. Machine-generated data and non-assertive conduct sit outside the hearsay definition in FRE-aligned jurisdictions, but they still need authenticity and, often, expert or business-records foundations.
Washington hearsay opinions
The State of Washington, Respondent, v. John T. Ryan, Appellant
The State of Washington, Respondent, v. John T. Ryan, Appellant, 103 Wash. 2d 165 (1984)
Williams, C.J. Hearsay statements of child victims of sexual abuse are conditionally admissible in criminal trials under RCW 9A.44.120. Defendant (appellant) John Ryan was convicted in Okanogan County of two counts of indecent liberties in a trial where hearsay statements of the two alleged victims were admitted under this statutory…
Washington opinions such as The State of Washington, Respondent, v. John T. Ryan, Appellant are cited where hearsay is disputed. The court stated: "Williams, C.J. Hearsay statements of child victims of sexual abuse are conditionally admissible in criminal trials under RCW 9A.44.120." That is the language to brief; the rest of the decision supplies the procedural posture.
The State of Washington v. Gregory Michael Rohrich
The State of Washington v. Gregory Michael Rohrich, 132 Wash. 2d 472 (1997)
…on is whether a child "testifies” for purposes of the child hearsay statute, RCW 9A.44.120(2)(a), when the child is called to the stand yet is not asked and does not answer any questions relating to the occurrences alleged in the hearsay. We conclude a child does not "testify” as referenced in the statute when she does not give testimony describing the acts of sexual contact al…
Washington opinions such as The State of Washington v. Gregory Michael Rohrich are cited where hearsay is disputed. The court stated: "RCW 9A.44.120(2)(a), when the child is called to the stand yet is not asked and does not answer any questions relating to the occurrences alleged in the hearsay." That is the language to brief; the rest of the decision supplies the procedural posture.
In the Matter of the Dependency of Penelope B. Penelope B., Et Al, Petitioners, v. R. B., Et Al, Respondents
…rist, Dr. Larry Freeman. The statements were objected to as hearsay by the respondents, but the testimony was admitted by the court subject to possible corroboration with the intended reservation of the court to strike the hearsay statements if not corroborated. While both sides in places objected to evidence on the grounds that the same was hearsay and that issue was contested…
In the Matter of the Dependency of Penelope B. Penelope B., Et Al, Petitioners, v. R. B., Et Al, Respondents is worth reading on Washington hearsay because the court put the point in its own words: "Dr. Larry Freeman. The statements were objected to as hearsay by the respondents, but the testimony was admitted by the court subject to possible corroboration with the intended reservation of the court to strike the hearsay statements if not corroborated." Use that passage as the starting point, then read the facts that precede it.
The State of Washington v. Thomas Robert Hudlow
The State of Washington v. Thomas Robert Hudlow, 182 Wash. App. 266 (2014)
…ss only two of the claimed errors: the harmful admission of hearsay and the sufficiency of the evidence. We reverse the conviction and remand for a new trial because the trial court admitted testimonial hearsay in violation of the confrontation clause and evidence rules. We rule that the hearsay was prejudicial because, based on a jury instruction, the State needed to prove tha…
On hearsay, The State of Washington v. Thomas Robert Hudlow speaks to the Washington dispute in this passage: "We reverse the conviction and remand for a new trial because the trial court admitted testimonial hearsay in violation of the confrontation clause and evidence rules." The surrounding opinion shows how the court applied that language to the record.
The State of Washington v. Sean Paul Nation
The State of Washington v. Sean Paul Nation, 110 Wash. App. 651 (2002)
…ping count, and (2) allowing a crime lab supervisor to give hearsay testimony pertaining to chemical analysis performed by a nontestifying subordinate technician. We affirm the bail jumping conviction, but reverse and dismiss the two drug charges. Mr. Nation was charged on June 22, 2000, with the two possession counts involving methamphetamine and marijuana, and one count each…
On hearsay, The State of Washington v. Sean Paul Nation speaks to the Washington dispute in this passage: "We affirm the bail jumping conviction, but reverse and dismiss the two drug charges. Mr." The surrounding opinion shows how the court applied that language to the record.
The State of Washington v. James L. Griffin
The State of Washington v. James L. Griffin, 173 Wash. 2d 467 (2012)
…ting circumstance existed, the court relied on inadmissible hearsay from the trial. ¶3 Griffin appealed his exceptional sentence. The Court of Appeals agreed with Griffin that the trial court relied on inadmissible hearsay; however, it affirmed his exceptional sentence. It determined that pursuant to ER 1101, the rules of evidence do not apply to sentencing and, thus, the trial…
Washington opinions such as The State of Washington v. James L. Griffin are cited where hearsay is disputed. The court stated: "Griffin appealed his exceptional sentence. The Court of Appeals agreed with Griffin that the trial court relied on inadmissible hearsay; however, it affirmed his exceptional sentence." That is the language to brief; the rest of the decision supplies the procedural posture.
State v. Griffin
State v. Griffin, 268 P.3d 924 (2012)
…ting circumstance existed, the court relied on inadmissible hearsay from the trial. ¶ 3 Griffin appealed his exceptional sentence. The Court of Appeals agreed with Griffin that the trial court relied on inadmissible hearsay; however, it affirmed his exceptional sentence. It determined that, pursuant to ER 1101, the rules of evidence do not apply to sentencing and thus, the tria…
Practitioners open State v. Griffin when Washington hearsay turns on the distinction in this sentence: "Griffin appealed his exceptional sentence. The Court of Appeals agreed with Griffin that the trial court relied on inadmissible hearsay; however, it affirmed his exceptional sentence." Do not lift it out of the facts the court was deciding.
Party admissions
Statements of an opposing party are among the most important routes around the hearsay bar. Washington treats them under Wash. ER 801(d)(2). Nothing about the statement need be against interest, contemporaneous, or based on personal knowledge — the theory is adversarial, not reliability-based. A party cannot complain that his own words are unreliable when offered against him.
Scope questions dominate practice: the party's own statement; adopted statements (including silence in circumstances where a reasonable person would deny); statements by authorized speakers; agent or employee statements on matters within the scope of the relationship; and, in criminal conspiracy cases, coconspirator statements during and in furtherance of the conspiracy. A defendant generally cannot introduce his own exculpatory out-of-court statement as a "party admission" against himself — the rule runs one way.
Washington party-admission opinions
State v. Hardy
State v. Hardy, 946 P.2d 1175 (1997)
…probative of the witness's veracity until the party seeking admission thereof shows the opposite by demonstrating the prior conviction disproves the veracity of the witness. Jones held "the trial court must state, for the record, the factors which favor admission or exclusion of prior conviction evidence." 101 Wash.2d at 122, 677 P.2d 131. The court must consider such factors t…
State v. Hardy is worth reading on Washington party admissions because the court put the point in its own words: "Jones held 'the trial court must state, for the record, the factors which favor admission or exclusion of prior conviction evidence.' 101 Wash.2d at 122, 677 P.2d 131." Use that passage as the starting point, then read the facts that precede it.
The State of Washington v. Patrick Eldon Hardy
The State of Washington v. Patrick Eldon Hardy, 133 Wash. 2d 701 (1997)
…probative of the witness’s veracity until the party seeking admission thereof shows the opposite by demonstrating the prior conviction disproves the veracity of the witness. *709Jones held the "trial court must state, for the record, the factors which favor admission or exclusion of prior conviction evidence.” 101 Wn.2d at 122. The court must consider such factors to assess whe…
Washington opinions such as The State of Washington v. Patrick Eldon Hardy are cited where party admissions is disputed. The court stated: "Jones held the 'trial court must state, for the record, the factors which favor admission or exclusion of prior conviction evidence.” 101 Wn.2d at 122." That is the language to brief; the rest of the decision supplies the procedural posture.
Saldivar v. Momah
Saldivar v. Momah, 186 P.3d 1117 (2008)
…n it would be without the evidence. ER 404(b) prohibits the admission of otherwise relevant evidence to show the character of a person to prove that the person acted in conformity with that character on a particular occasion.[20]State v. Everybodytalksabout, 145 Wash.2d 456, 466, 39 P.3d 294 (2002). Although inadmissible to prove propensity on a particular occasion, evidence of…
Washington opinions such as Saldivar v. Momah are cited where party admissions is disputed. The court stated: "ER 404(b) prohibits the admission of otherwise relevant evidence to show the character of a person to prove that the person acted in conformity with that character on a particular occasion.[20]State v. Everybodytalksabout, 145 Wash.2d 456, 466, 39 P.3d 294 (2002)." That is the language to brief; the rest of the decision supplies the procedural posture.
The State of Washington v. Sean Paul Nation
The State of Washington v. Sean Paul Nation, 110 Wash. App. 651 (2002)
…en, 48 Wn. App. 139, 147, 738 P.2d 306 (1987) (out-of-court admissions of party not admissible as exception to hearsay rule when self-serving). And, Mr. Nation gave the same explanation when he testified, making Mr. Troberg’s proffered testimony repetitious in any event. See State v. Stirgus, 21 Wn. App. 627, 640-41, 586 P.2d 532 (1978). In addition, the agreed stipulation, exp…
Washington opinions such as The State of Washington v. Sean Paul Nation are cited where party admissions is disputed. The court stated: "Wn. App. 139, 147, 738 P.2d 306 (1987) (out-of-court admissions of party not admissible as exception to hearsay rule when self-serving). And, Mr. Nation gave the same explanation when he testified, making Mr. Troberg’s proffered testimony repetitious in any event. See State v." That is the language to brief; the rest of the decision supplies the procedural posture.
State v. Nation
State v. Nation, 41 P.3d 1204 (2002)
…n, 48 Wash.App. 139, 147, 738 P.2d 306 (1987) (out-of-court admissions of party not admissible as exception to hearsay rule when self-serving). And, Mr. Nation gave the same explanation when he testified, making Mr. Troberg's proffered testimony repetitious in any event. See State v. Stirgus, 21 Wash.App. 627, 640-41, 586 P.2d 532 (1978). In addition, the agreed stipulation exp…
On party admissions, State v. Nation speaks to the Washington dispute in this passage: "Wash.App. 139, 147, 738 P.2d 306 (1987) (out-of-court admissions of party not admissible as exception to hearsay rule when self-serving). And, Mr. Nation gave the same explanation when he testified, making Mr. Troberg's proffered testimony repetitious in any event. See State v." The surrounding opinion shows how the court applied that language to the record.
The State of Washington, Respondent, v. Walter v. Bailey, Appellant
The State of Washington, Respondent, v. Walter v. Bailey, Appellant, 52 Wash. App. 42 (1988)
…a child's hearsay statements are sufficiently reliable for admission purposes under the child hearsay statute. State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984). The first five factors are as follows: *49 (1) whether there is an apparent motive to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the sta…
On party admissions, The State of Washington, Respondent, v. Walter v. Bailey, Appellant speaks to the Washington dispute in this passage: "State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984)." The surrounding opinion shows how the court applied that language to the record.
In the Matter of the Estate of Bertha Q. Allen, Deceased
In the Matter of the Estate of Bertha Q. Allen, Deceased, 54 Wash. 2d 616 (1959)
…We do not, therefore, have to deal *623 with an offer of an admission of fact by a party’s predecessor in interest. There is a vast distinction between the two. 7 The offered testimony was not admissible as a declaration against interest for (1) it was not against the declarant’s interest at the time it was made; and (2) the declarant had no consciousness that it would in the f…
In the Matter of the Estate of Bertha Q. Allen, Deceased is worth reading on Washington party admissions because the court put the point in its own words: "We do not, therefore, have to deal *623 with an offer of an admission of fact by a party’s predecessor in interest. There is a vast distinction between the two." Use that passage as the starting point, then read the facts that precede it.
Business records
The business-records exception under Wash. ER 803(6) is the everyday path for medical charts, employment files, bank statements, and maintenance logs. The foundation requires a record made at or near the time by — or from information transmitted by — someone with knowledge; kept in the course of a regularly conducted activity; and made as a regular practice. A custodian or other qualified witness (or a qualifying certification where the jurisdiction allows it) lays the foundation. The opponent may still attack lack of trustworthiness when the source or method of preparation indicates unreliability — litigation-driven reports are the classic failure mode.
Do not confuse authenticity with the business-records exception. You still need to show the exhibit is what you claim it is; the hearsay exception then answers why the out-of-court assertions inside it may be considered for their truth.
Washington business-records opinions
State v. Kirkpatrick
State v. Kirkpatrick, 161 P.3d 990 (2007)
…s context.[3] However, the court's express recognition that business records are not "testimonial" provides a basis for concluding that public records, as well as certifications of the absence thereof, are also not testimonial evidence. Accordingly, we agree with Division One of the Court of Appeals that Mr. Kirkpatrick's rights under the Confrontation Clause were not violated…
Washington opinions such as State v. Kirkpatrick are cited where business records is disputed. The court stated: "However, the court's express recognition that business records are not 'testimonial' provides a basis for concluding that public records, as well as certifications of the absence thereof, are also not testimonial evidence." That is the language to brief; the rest of the decision supplies the procedural posture.
The State of Washington, Respondent, v. Gilbert Monson, Petitioner
The State of Washington, Respondent, v. Gilbert Monson, Petitioner, 113 Wash. 2d 833 (1989)
…d 112, 542 P.2d 782 (1975). In Kreck, in the context of the business records exception to the hearsay rule, the court held that admission of business records does not violate a defendant's right to confrontation. Accord, State v. Smith, 16 Wn. App. 425, 433, 558 P.2d 265 (1976), review denied, 88 Wn.2d 1011 (1977); State v. Bradley, 17 Wn. App. 916, 919, 567 P.2d 650 (1977), re…
Washington opinions such as The State of Washington, Respondent, v. Gilbert Monson, Petitioner are cited where business records is disputed. The court stated: "P.2d 782 (1975). In Kreck, in the context of the business records exception to the hearsay rule, the court held that admission of business records does not violate a defendant's right to confrontation. Accord, State v. Smith, 16 Wn. App. 425, 433, 558 P." That is the language to brief; the rest of the decision supplies the procedural posture.
State v. Iverson
State v. Iverson, 108 P.3d 799 (2005)
…description, and booking photos, were properly admitted as business records under RCW 5.45.020, and the court did not err in relying on the records, paired with officer testimony regarding the victim, to hold that the victim was indeed the person identified in the protection order. The corpus delicti was thereby established, and as a result, the court properly admitted Iverson…
Practitioners open State v. Iverson when Washington business records turns on the distinction in this sentence: "RCW 5.45.020, and the court did not err in relying on the records, paired with officer testimony regarding the victim, to hold that the victim was indeed the person identified in the protection order." Do not lift it out of the facts the court was deciding.
The State of Washington v. Sean Paul Nation
The State of Washington v. Sean Paul Nation, 110 Wash. App. 651 (2002)
…mony based on Mr. Melnikoff’s notes may be upheld under the business records exception to the hearsay rule because Mr. Fortney was custodian of the records and testified how the test notes were made in the regular course of business. State v. Ecklund, 30 Wn. App. 313, 319-20, 633 P.2d 933 (1981). And, as Mr. Melnikoff’s supervisor, it was permissible under Ecklund for Mr. Fortn…
Washington opinions such as The State of Washington v. Sean Paul Nation are cited where business records is disputed. The court stated: "Mr. Melnikoff’s notes may be upheld under the business records exception to the hearsay rule because Mr. Fortney was custodian of the records and testified how the test notes were made in the regular course of business. State v. Ecklund, 30 Wn. App. 313, 319-20, 633 P." That is the language to brief; the rest of the decision supplies the procedural posture.
State v. Nation
State v. Nation, 41 P.3d 1204 (2002)
…mony based on Mr. Melnikoff's notes may be upheld under the business records exception to the hearsay rule because Mr. Fortney was custodian of the records and testified how the test notes were made in the regular course of business. State v. Ecklund, 30 Wash.App. 313, 319-20, 633 P.2d 933 (1981). And, as Mr. Melnikoff's supervisor, it was permissible under Ecklund for Mr. Fort…
On business records, State v. Nation speaks to the Washington dispute in this passage: "Mr. Melnikoff's notes may be upheld under the business records exception to the hearsay rule because Mr. Fortney was custodian of the records and testified how the test notes were made in the regular course of business. State v. Ecklund, 30 Wash.App. 313, 319-20, 633 P." The surrounding opinion shows how the court applied that language to the record.
The State of Washington, Respondent, v. Richard Ben-Neth, Appellant
The State of Washington, Respondent, v. Richard Ben-Neth, Appellant, 34 Wash. App. 600 (1983)
…uter-generated evidence is hearsay but may be admitted as a business record provided a proper foundation is laid under RCW 5.45.020, which provides: 603 If the statutory requisites are met, computerized records are treated the same as any other business records. Seattle v. Heath, 10 Wn. App. 949, 520 P.2d 1392 (1974). 602 Business records as evidence. A record of an act, cond…
The State of Washington, Respondent, v. Richard Ben-Neth, Appellant is worth reading on Washington business records because the court put the point in its own words: "RCW 5.45.020, which provides: 603 If the statutory requisites are met, computerized records are treated the same as any other business records. Seattle v. Heath, 10 Wn. App. 949, 520 P.2d 1392 (1974). 602 Business records as evidence." Use that passage as the starting point, then read the facts that precede it.
State v. Quincy
State v. Quincy, 95 P.3d 353 (2004)
…ible as evidence of the value of the stolen goods under the business records exception to the rule against hearsay. BACKGROUND Loss prevention personnel at a Fred Meyer store observed Jesse Quincy and two women behaving suspiciously, indiscriminately loading merchandise into a plastic tote in one of the store's carts. The employees monitored Quincy's movements throughout the st…
On business records, State v. Quincy speaks to the Washington dispute in this passage: "BACKGROUND Loss prevention personnel at a Fred Meyer store observed Jesse Quincy and two women behaving suspiciously, indiscriminately loading merchandise into a plastic tote in one of the store's carts." The surrounding opinion shows how the court applied that language to the record.
The State of Washington, Respondent, v. Gail M. Hines, Appellant
The State of Washington, Respondent, v. Gail M. Hines, Appellant, 87 Wash. App. 98 (1997)
…in evidence in the courts of this state.” RCW 5.44.040. The business records exception to the hearsay rule also authorizes the admission of otherwise inadmissible records provided they are made and kept in the ordinary course of business. RCW 5.45.020 (business records as evidence). *101 The Sixth Amendment to the United States Constitution and article I, section 22 of the Wash…
On business records, The State of Washington, Respondent, v. Gail M. Hines, Appellant speaks to the Washington dispute in this passage: "RCW 5.44.040. The business records exception to the hearsay rule also authorizes the admission of otherwise inadmissible records provided they are made and kept in the ordinary course of business. RCW 5.45.020 (business records as evidence)." The surrounding opinion shows how the court applied that language to the record.
Important hearsay exceptions that do not require unavailability
Three present-sense and mental-state exceptions carry most of the remaining traffic in Washington trial practice.
Excited utterance — Wash. ER 803(2). A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. Timing is elastic; composure defeats the exception even minutes after the event, while visible distress can preserve it for hours.
Present sense impression — Wash. ER 803(1). A statement describing or explaining an event or condition made while or immediately after the declarant perceived it. Contemporaneity is strict — seconds and minutes, not hours — and excitement is not required.
Then-existing mental, emotional, or physical condition — Wash. ER 803(3). Statements of then-existing state of mind (including intent and plan) come in; statements of memory or belief offered to prove the fact remembered generally do not. Intent-to-meet-another-person cases remain the hardest applications.
Declarant unavailable
When the declarant is unavailable under Wash. ER 804(a), Washington opens a second suite of exceptions. Unavailability typically includes privilege, refusal to testify despite court order, lack of memory, death or then-existing infirmity, and absence despite reasonable efforts to procure attendance. The proponent bears the burden of proving unavailability with specific facts — a bare assertion that the witness "could not be found" is not enough.
Former testimony under Wash. ER 804(b)(1) is the workhorse once unavailability is shown: testimony given as a witness at a trial, hearing, or lawful deposition, offered against a party who had an opportunity and similar motive to develop it by direct, cross, or redirect. Criminal confrontation analysis runs in parallel and is not satisfied merely because a hearsay exception applies.
Dying declarations
Dying declarations under Wash. ER 804(b)(2) remain a narrow but decisive exception in homicide and, in many jurisdictions, civil cases involving the cause or circumstances of what the declarant believed to be impending death. The foundational showing is the declarant's belief that death was imminent — not that death in fact followed within any particular time — plus a statement concerning the cause or circumstances of what the declarant believed to be the impending death. Courts police coaching and narrative expansions aggressively.
Washington dying-declaration opinions
The State of Washington, Respondent, v. George Kwan Et Al., Appellants
The State of Washington, Respondent, v. George Kwan Et Al., Appellants, 174 Wash. 528 (1933)
…nation of one of the officers who testified relative to the dying declarations. The objection to the question was made on the ground that it was repetition. The same matter had already been covered by repeated questioning. There is no merit in the claim of error. It is next contended that the dying declarations were not admissible because it is claimed that, at the time they we…
On dying declaration, The State of Washington, Respondent, v. George Kwan Et Al., Appellants speaks to the Washington dispute in this passage: "The objection to the question was made on the ground that it was repetition. The same matter had already been covered by repeated questioning. There is no merit in the claim of error." The surrounding opinion shows how the court applied that language to the record.
The State of Washington v. E. L. Moody
The State of Washington v. E. L. Moody, 18 Wash. 165 (1897)
…instruction complained of. The admission in evidence of the dying declaration of Mrs. Bunn is also alleged as error by the appellant. The court instructed the jury that such declaration should be given “just such credit as you believe under all the circumstances they are entitled to.” This dying declaration included the assertion of a threat. The question was asked, “Had he eve…
Washington opinions such as The State of Washington v. E. L. Moody are cited where dying declaration is disputed. The court stated: "The admission in evidence of the dying declaration of Mrs. Bunn is also alleged as error by the appellant. The court instructed the jury that such declaration should be given “just such credit as you believe under all the circumstances they are entitled to." That is the language to brief; the rest of the decision supplies the procedural posture.
The State of Washington v. William C. Eddon
The State of Washington v. William C. Eddon, 8 Wash. 292 (1894)
…is a contradiction in the testimony, Meyei’s’ testimony by dying declaration being, that after he called Eddon a “ son-of-a-bitch, ’ ’ Eddon drew his revolver and told him to take it back. He replied that he would not take it back, and told Eddon to put it up. These expressions passed between them two or three times, and Eddon fired, shooting Meyers through the body. While Edd…
Washington opinions such as The State of Washington v. William C. Eddon are cited where dying declaration is disputed. The court stated: "Meyei’s’ testimony by dying declaration being, that after he called Eddon a “ son-of-a-bitch, ’ ’ Eddon drew his revolver and told him to take it back. He replied that he would not take it back, and told Eddon to put it up." That is the language to brief; the rest of the decision supplies the procedural posture.
The State of Washington v. Axel Nist
The State of Washington v. Axel Nist, 66 Wash. 55 (1911)
…ofs it would seem that it was thought to be admissible as a dying declaration. But *59it is manifest that the evidence was not admissible on this ground. Dying declarations are but a species of secondary or hearsay evidence, and their admission is an exception to the rule that excludes hearsay evidence. The exception is founded on the necessities of the case. It oftens happens…
Practitioners open The State of Washington v. Axel Nist when Washington dying declaration turns on the distinction in this sentence: "But *59it is manifest that the evidence was not admissible on this ground. Dying declarations are but a species of secondary or hearsay evidence, and their admission is an exception to the rule that excludes hearsay evidence. The exception is founded on the necessities of the case." Do not lift it out of the facts the court was deciding.
The State of Washington v. Frank O. Bridgham
The State of Washington v. Frank O. Bridgham, 51 Wash. 18 (1908)
…igned is that the court admitted a written statement as the dying declaration of the deceased. It is argued that the statement should not have been admitted for the reason that there was nothing upon its face showing that the deceased realized at the time that she was about to die or that her death was imminent and impending. The further argument is made that the evidence intro…
The State of Washington v. Frank O. Bridgham is worth reading on Washington dying declaration because the court put the point in its own words: "It is argued that the statement should not have been admitted for the reason that there was nothing upon its face showing that the deceased realized at the time that she was about to die or that her death was imminent and impending." Use that passage as the starting point, then read the facts that precede it.
The State of Washington v. Charles A. Palmer
The State of Washington v. Charles A. Palmer, 104 Wash. 396 (1918)
…of the shooting. IV. Refusal of requested instruction as to dying declaration, and the giving of one by the court on the same subject. The instruction as to the weight to be *403given a dying declaration followed the rule established in State v. Eddon, 8 Wash. 292, 36 Pac. 139, and while not as elaborate a statement as the one requested by the appellant, correctly and fully cov…
Practitioners open The State of Washington v. Charles A. Palmer when Washington dying declaration turns on the distinction in this sentence: "IV. Refusal of requested instruction as to dying declaration, and the giving of one by the court on the same subject. The instruction as to the weight to be *403given a dying declaration followed the rule established in State v. Eddon, 8 Wash. 292, 36 Pac." Do not lift it out of the facts the court was deciding.
The State of Washington, Respondent, v. Claude A. Labbee, Appellant
The State of Washington, Respondent, v. Claude A. Labbee, Appellant, 134 Wash. 55 (1925)
…nt. Therefore, it does not come within the hearsay rule. “A dying declaration is a narration of a past event and is not excluded by the hearsay rule, for the reason that the utterance is made in the belief on the part of the speaker that dissolution is imminent and certain. Dying declarations are only recognized in the law of evidence in homicide cases, and in some jurisdiction…
The State of Washington, Respondent, v. Claude A. Labbee, Appellant is worth reading on Washington dying declaration because the court put the point in its own words: "Therefore, it does not come within the hearsay rule. “A dying declaration is a narration of a past event and is not excluded by the hearsay rule, for the reason that the utterance is made in the belief on the part of the speaker that dissolution is imminent and certain." Use that passage as the starting point, then read the facts that precede it.
The State of Washington v. Mary Swartz
The State of Washington v. Mary Swartz, 108 Wash. 21 (1919)
…’s home, where he wrote what was offered in evidence as the dying declaration of Fay Hamilton. The girl died that night. Appellant assigns as error the admission in evidence of the dying declaration, the admitted portion of which is as follows: “I went to Dr. Swartz first. She used a catheter. This was out at the nurse’s place on Broadway and Elm. I stayed there from Friday nig…
The State of Washington v. Mary Swartz is worth reading on Washington dying declaration because the court put the point in its own words: "Fay Hamilton. The girl died that night. Appellant assigns as error the admission in evidence of the dying declaration, the admitted portion of which is as follows: “I went to Dr. Swartz first. She used a catheter. This was out at the nurse’s place on Broadway and Elm." Use that passage as the starting point, then read the facts that precede it.
Medical diagnosis or treatment statements
Statements made for medical diagnosis or treatment under Wash. ER 803(4) cover medical history, past or present symptoms, and their general cause when reasonably pertinent to diagnosis or treatment. The exception is not limited to treating physicians; statements to nurses, EMTs, and consulting clinicians can qualify when the diagnostic purpose is genuine. Fault and identity remain the usual battleground: "I was hit by a car" is often pertinent; "the light was green" usually is not; abuser identity in child-abuse and domestic-violence cases is heavily litigated.
Washington medical-statement opinions
The State of Washington v. Michael Wayne Williams
The State of Washington v. Michael Wayne Williams, 137 Wash. App. 736 (2007)
…ting J.A.D.’s answers to Jacobsen’s questionnaire under the medical diagnosis exception to the hearsay rule, ER 803(a)(4). According to Williams, J.A.D.’s statements to Jacobsen were inadmissible because J.A.D. testified that she went to the hospital so that evidence could be gathered and that she did not feel she needed specific medical treatment. He argues that, according to…
The State of Washington v. Michael Wayne Williams is worth reading on Washington medical diagnosis hearsay because the court put the point in its own words: "J.A.D.’s answers to Jacobsen’s questionnaire under the medical diagnosis exception to the hearsay rule, ER 803(a)(4). According to Williams, J.A.D.’s statements to Jacobsen were inadmissible because J.A.D." Use that passage as the starting point, then read the facts that precede it.
State v. Williams
State v. Williams, 154 P.3d 322 (2007)
…mitting JAD's answers to Jacobsen's questionnaire under the medical diagnosis exception to the hearsay rule, ER 803(a)(4). According to Williams, JAD's statements to Jacobsen were inadmissible because JAD testified that she went to the hospital so that evidence could be gathered and that she did not feel she needed specific medical treatment. He argues *328 that, according to J…
State v. Williams is worth reading on Washington medical diagnosis hearsay because the court put the point in its own words: "JAD's answers to Jacobsen's questionnaire under the medical diagnosis exception to the hearsay rule, ER 803(a)(4)." Use that passage as the starting point, then read the facts that precede it.
The State of Washington, Respondent, v. Gregory Louis Butler, Appellant
The State of Washington, Respondent, v. Gregory Louis Butler, Appellant, 53 Wash. App. 214 (1989)
…e statement was admissible as statements for the purpose of medical diagnosis and treatment. The court did not address this ground and instead admitted the statement as an excited utterance. The State concedes that the trial court erred in admitting the statement as an excited utterance. However, it argues that Danikas' identification testimony was admissible under ER 803(a)(4)…
Washington opinions such as The State of Washington, Respondent, v. Gregory Louis Butler, Appellant are cited where medical diagnosis hearsay is disputed. The court stated: "The court did not address this ground and instead admitted the statement as an excited utterance. The State concedes that the trial court erred in admitting the statement as an excited utterance." That is the language to brief; the rest of the decision supplies the procedural posture.
State v. Moses
State v. Moses, 119 P.3d 906 (2005)
…and should not have been admitted.[12] Statements Made for Medical Diagnosis or Treatment ¶ 18 Moses challenges the trial court's decision to admit Dr. Appleton's testimony about what Jennifer told him about the assault and the social worker's testimony about what Jennifer and F.M. told her. Moses argues these out-of-court statements violated his right to the confrontation und…
Washington opinions such as State v. Moses are cited where medical diagnosis hearsay is disputed. The court stated: "Statements Made for Medical Diagnosis or Treatment ¶ 18 Moses challenges the trial court's decision to admit Dr. Appleton's testimony about what Jennifer told him about the assault and the social worker's testimony about what Jennifer and F.M. told her." That is the language to brief; the rest of the decision supplies the procedural posture.
In the Matter of the Dependency of M.P., Et Al. D.P., Appellant, v. the Department of Social and Health Services
…831 (1973). Admissibility of Evidence of Sexual Abuse Under Medical Diagnosis or Treatment Exception to Hearsay The trial court found significant an event that occurred during a church camping trip shortly after the couple separated. J (then 3 years old) was next to her mother in the tent when the father began sexual advances on the mother. The mother begged him to stop when J…
On medical diagnosis hearsay, In the Matter of the Dependency of M.P., Et Al. D.P., Appellant, v. the Department of Social and Health Services speaks to the Washington dispute in this passage: "Admissibility of Evidence of Sexual Abuse Under Medical Diagnosis or Treatment Exception to Hearsay The trial court found significant an event that occurred during a church camping trip shortly after the couple separated." The surrounding opinion shows how the court applied that language to the record.
The State of Washington v. Jeffrey Duane Moses
The State of Washington v. Jeffrey Duane Moses, 129 Wash. App. 718 (2005)
…rd and should not have been admitted.12 Statements Made for Medical Diagnosis or Treatment ¶18 Moses challenges the trial court’s decision to admit Dr. Appleton’s testimony about what Jennifer told him about the assault and the social worker’s testimony about what Jennifer and F.M. told her. Moses argues these out-of-court statements violated his right to confrontation under Cr…
Washington opinions such as The State of Washington v. Jeffrey Duane Moses are cited where medical diagnosis hearsay is disputed. The court stated: "Statements Made for Medical Diagnosis or Treatment ¶18 Moses challenges the trial court’s decision to admit Dr. Appleton’s testimony about what Jennifer told him about the assault and the social worker’s testimony about what Jennifer and F.M. told her." That is the language to brief; the rest of the decision supplies the procedural posture.
The State of Washington v. Reginald Saunders
The State of Washington v. Reginald Saunders, 132 Wash. App. 592 (2006)
…earsay bar for out-of-court statements made for purposes of medical diagnosis and treatment. Saunders does not contest the trial court’s ruling that the statements qualify under ER 803(a)(4). Instead, he asserts that the statements are nevertheless “testimonial,” and that their admission violated his constitutional right to confront adverse witnesses. ¶23 Typically, the purpose…
Practitioners open The State of Washington v. Reginald Saunders when Washington medical diagnosis hearsay turns on the distinction in this sentence: "Saunders does not contest the trial court’s ruling that the statements qualify under ER 803(a)(4). Instead, he asserts that the statements are nevertheless “testimonial,” and that their admission violated his constitutional right to confront adverse witnesses." Do not lift it out of the facts the court was deciding.
State v. Saunders
State v. Saunders, 132 P.3d 743 (2006)
…earsay bar for out-of-court statements made for purposes of medical diagnosis and treatment. Saunders does not contest the trial court's ruling that the statements qualify under ER 803(a)(4). Instead, he asserts that the statements are nevertheless "testimonial," and that their admission violated his constitutional right to confront adverse witnesses. *749 ¶ 23 Typically, the p…
On medical diagnosis hearsay, State v. Saunders speaks to the Washington dispute in this passage: "Saunders does not contest the trial court's ruling that the statements qualify under ER 803(a)(4). Instead, he asserts that the statements are nevertheless 'testimonial,' and that their admission violated his constitutional right to confront adverse witnesses." The surrounding opinion shows how the court applied that language to the record.
Use of depositions at trial
Civil Rule 32 governs deposition use at trial in Washington superior courts. CrR 4.7 addresses criminal discovery; deposition testimony at trial requires Wash. ER 804(b)(1) when unavailability is established.
Deposition use is always a two-layer problem: procedural permission to read or play the deposition, plus a hearsay path (often former testimony, party admission, or impeachment). Counsel who satisfy the civil or criminal procedure rule but skip the evidence-rule foundation invite a sustained objection; counsel who have a hearsay exception but failed to preserve the deposition under the procedural rule face the same result. Video designations, counter-designations, and completeness objections should be teed up before the jury is seated.
Washington deposition / former-testimony opinions
The State of Washington, Respondent, v. Daniel Sanchez, Appellant
The State of Washington, Respondent, v. Daniel Sanchez, Appellant, 42 Wash. App. 225 (1985)
…ment of ER 804(b)(1), so as to permit the use of a pretrial deposition of the witness at trial. Additional issues concern the propriety of various eviden-tiary rulings; the denial of a proposed instruction; and sufficiency of the evidence of the alternative means of committing the offense of negligent homicide, including sufficiency of the evidence of causation based on Sanchez…
The State of Washington, Respondent, v. Daniel Sanchez, Appellant is worth reading on Washington deposition / former testimony because the court put the point in its own words: "ER 804(b)(1), so as to permit the use of a pretrial deposition of the witness at trial." Use that passage as the starting point, then read the facts that precede it.
Fidelity and Deposit Co. of Maryland v. Dally
Fidelity and Deposit Co. of Maryland v. Dally, 201 P.3d 1040 (2009)
…court; summary judgment is appropriate when the pleadings, depositions, and admissions on file, together with the affidavits, if any, show there is no genuine issue about any material fact and, assuming facts most favorable to the nonmoving party, establish that the moving party is entitled to judgment as a matter of law. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030…
Fidelity and Deposit Co. of Maryland v. Dally is worth reading on Washington deposition / former testimony because the court put the point in its own words: "Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P." Use that passage as the starting point, then read the facts that precede it.
The State of Washington, Respondent, v. Lenard Douglas Whisler, Appellant
The State of Washington, Respondent, v. Lenard Douglas Whisler, Appellant, 61 Wash. App. 126 (1991)
…Whis-ler argues that the trial court erred in admitting the deposition testimony of Virga Adams, the 94-year-old woman whose check Whisler allegedly forged. Whisler raises two issues on appeal. First, did the trial court make the requisite findings that Adams was an "unavailable" witness under ER 804 and that admission of her deposition testimony would not violate Whisler's con…
The State of Washington, Respondent, v. Lenard Douglas Whisler, Appellant is worth reading on Washington deposition / former testimony because the court put the point in its own words: "Whis-ler argues that the trial court erred in admitting the deposition testimony of Virga Adams, the 94-year-old woman whose check Whisler allegedly forged. Whisler raises two issues on appeal." Use that passage as the starting point, then read the facts that precede it.
The State of Washington, Respondent, v. Bill Ronald Hobson, Appellant
The State of Washington, Respondent, v. Bill Ronald Hobson, Appellant, 61 Wash. App. 330 (1991)
…the trial court erred in admitting the victim's videotaped deposition because the State failed to show that the victim was unavailable to testify. He also claims that admitting the *332 videotaped deposition violated his Sixth Amendment right to confront and cross-examine a state witness. Facts A couple of weeks prior to the theft in question, Hobson and his friend, Hrvatin, m…
The State of Washington, Respondent, v. Bill Ronald Hobson, Appellant is worth reading on Washington deposition / former testimony because the court put the point in its own words: "State failed to show that the victim was unavailable to testify. He also claims that admitting the *332 videotaped deposition violated his Sixth Amendment right to confront and cross-examine a state witness." Use that passage as the starting point, then read the facts that precede it.
The State of Washington, Respondent, v. William Jewell Sweeney, Appellant
The State of Washington, Respondent, v. William Jewell Sweeney, Appellant, 45 Wash. App. 81 (1986)
…on and effective assistance of counsel; and (3) whether the deposition of a State's witness was improperly admitted because the State failed to establish that the witness was unavailable under ER 804(b)(1). We conclude that the State did not make a proper showing of unavailability of the witness under ER 804(b)(1) because it did not attempt to procure the presence of the witnes…
Washington opinions such as The State of Washington, Respondent, v. William Jewell Sweeney, Appellant are cited where deposition / former testimony is disputed. The court stated: "State's witness was improperly admitted because the State failed to establish that the witness was unavailable under ER 804(b)(1)." That is the language to brief; the rest of the decision supplies the procedural posture.
The State of Washington, Respondent, v. Todd Goddard, Appellant
The State of Washington, Respondent, v. Todd Goddard, Appellant, 38 Wash. App. 509 (1984)
…iency of the evidence and error in admitting the video tape deposition of a coparticipant. In January 1983, Todd Goddard was riding with several other boys in a friend's car. Goddard and Chris Benson discussed a plan to steal silver from the home of a family for whom they had previously worked. While Goddard and the driver of the car waited down the street, Benson and another o…
The State of Washington, Respondent, v. Todd Goddard, Appellant is worth reading on Washington deposition / former testimony because the court put the point in its own words: "In January 1983, Todd Goddard was riding with several other boys in a friend's car. Goddard and Chris Benson discussed a plan to steal silver from the home of a family for whom they had previously worked." Use that passage as the starting point, then read the facts that precede it.
The State of Washington, Respondent, v. Keith Lyle Scott, Et Al, Defendants, Ferdinand Brown, Appellant
…secutor arranged to preserve Sung's testimony by a pretrial deposition, which was taken after notice to defense counsel, who attended the deposition and cross-examined Sung. Apparently, Sung was then released from his subpoena. Defense counsel reserved the right to object to the deposition at trial. At trial, defense counsel did object to Sung's deposition on the basis that Sun…
Practitioners open The State of Washington, Respondent, v. Keith Lyle Scott, Et Al, Defendants, Ferdinand Brown, Appellant when Washington deposition / former testimony turns on the distinction in this sentence: "Sung's testimony by a pretrial deposition, which was taken after notice to defense counsel, who attended the deposition and cross-examined Sung. Apparently, Sung was then released from his subpoena. Defense counsel reserved the right to object to the deposition at trial." Do not lift it out of the facts the court was deciding.
Kinsman v. Englander
Kinsman v. Englander, 167 P.3d 622 (2007)
…ue to advanced age and physical infirmities, the use of the deposition of a material witness was appropriate because she was unavailable at trial. But, we hold that the use of telephonic testimony of the same witness in rebuttal was improper without the consent of both parties. Here, allowing the telephonic testimony was harmless error. Because there was substantial evidence of…
Washington opinions such as Kinsman v. Englander are cited where deposition / former testimony is disputed. The court stated: "But, we hold that the use of telephonic testimony of the same witness in rebuttal was improper without the consent of both parties. Here, allowing the telephonic testimony was harmless error." That is the language to brief; the rest of the decision supplies the procedural posture.
Authenticity: why it matters and how to prove it
Authenticity is not a hearsay doctrine and it is not optional. Under Wash. ER 901, 902, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Self-authenticating categories — certified public records, newspapers, acknowledged documents, trade inscriptions, and (where adopted) certified domestic records of a regularly conducted activity — shorten the path, but most trial exhibits still need a sponsoring witness, distinctive characteristics, chain of custody, or process-or-system evidence.
Washington tech, maritime, and tribal cases require authenticated cloud-stored records, ferry incident reports, and body-worn camera video under Wash. ER 901–902.
Why authenticity gets its own section in every Washington trial notebook:
- It is a condition precedent. An unauthenticated exhibit never reaches the relevance, hearsay, or privilege analysis in a useful way — the jury never properly considers it.
- Digital evidence multiplies the failure modes. Screenshots, social-media posts, text threads, and cloud downloads require hash values, account attribution, metadata, or a percipient witness who saw the content created or received.
- Chain of custody is authenticity by another name. Drugs, firearms, biological samples, and seized devices are excluded when the links from seizure to lab to courtroom are broken, even if a hearsay exception would otherwise apply to a lab report.
- Business-records shortcuts do not replace authentication. A custodian can explain record-keeping practices and still fail if nobody can say the particular PDF or printout is the record of this patient, this account, or this machine.
- Self-authentication is narrow. Counsel who wave a notarization or a letterhead and skip the rest of Rule 901-style analysis often lose when the document's contents are disputed.
Practical authentication checklist for Washington trials: identify the exhibit; choose a 901 method or a 902 category; line up the sponsoring witness or certificate; preserve chain-of-custody testimony for physical and digital items; and separate the authenticity objection from any hearsay objection so the court rules on each.
Washington authenticity opinions
State v. Williams
State v. Williams, 150 P.3d 111 (2007)
…stify at Williams' trial and, therefore, was not present to authenticate the recording or to submit to cross-examination.[2] ¶ 6 The court's instructions to the jury included an instruction regarding accomplice liability, which provided in relevant part: A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not. A per…
Practitioners open State v. Williams when Washington authentication turns on the distinction in this sentence: "Williams' trial and, therefore, was not present to authenticate the recording or to submit to cross-examination." Do not lift it out of the facts the court was deciding.
The State of Washington, Respondent, v. Ralph Tatum, Appellant
The State of Washington, Respondent, v. Ralph Tatum, Appellant, 58 Wash. 2d 73 (1961)
…) Were the Regiscope ,films (the .negative and ; the print) authenticated sufficiently to warrant their admission into evidence? (2) Did Phillip Dale, the Regiscope distributor, qualify as an expert witness with respect -to- the filming process’ despite the bf act that he-wás not a photographer by profession? *75 At the outset, with respect to the question of the admissibility…
Practitioners open The State of Washington, Respondent, v. Ralph Tatum, Appellant when Washington authentication turns on the distinction in this sentence: "Were the Regiscope ,films (the .negative and ; the print) authenticated sufficiently to warrant their admission into evidence?" Do not lift it out of the facts the court was deciding.
The State of Washington v. Jeffrey B. Payne
The State of Washington v. Jeffrey B. Payne, 117 Wash. App. 99 (2003)
…tate v. Cabrera, 73 Wn. App. 165, 169, 868 P.2d 179 (1994). Authentication is a threshold requirement designed to assure that evidence is what it purports to be. 5C Karl B. Tegland, Washington Practice: Evidence Law and Practice § 900.2, at 175; § 901.2, at 181-82 (4th ed. 1999). The State satisfies ER 901, which requires that documents be authenticated or identified, if it int…
Practitioners open The State of Washington v. Jeffrey B. Payne when Washington authentication turns on the distinction in this sentence: "Cabrera, 73 Wn. App. 165, 169, 868 P.2d 179 (1994). Authentication is a threshold requirement designed to assure that evidence is what it purports to be. 5C Karl B. Tegland, Washington Practice: Evidence Law and Practice § 900.2, at 175; § 901.2, at 181-82 (4th ed. 1999)." Do not lift it out of the facts the court was deciding.
State v. Payne
State v. Payne, 69 P.3d 889 (2003)
…ate v. Cabrera, 73 Wash.App. 165, 169, 868 P.2d 179 (1994). Authentication is a threshold requirement designed to assure that evidence is what it purports to be. 5C K. TEGLAND, WASH. PRAC., EVIDENCE § 900.2, at 175; § 901.2 at 181-82. The State satisfies ER 901, which requires that documents be authenticated or identified, if it introduces sufficient proof to permit a reasonabl…
State v. Payne is worth reading on Washington authentication because the court put the point in its own words: "Cabrera, 73 Wash.App. 165, 169, 868 P.2d 179 (1994). Authentication is a threshold requirement designed to assure that evidence is what it purports to be. 5C K. TEGLAND, WASH. PRAC., EVIDENCE § 900.2, at 175; § 901.2 at 181-82." Use that passage as the starting point, then read the facts that precede it.
The State of Washington, Respondent, v. Ernest Milton Kelly, Appellant
The State of Washington, Respondent, v. Ernest Milton Kelly, Appellant, 52 Wash. 2d 676 (1958)
…e, and Procedure 38, 34A Wn. (2d) 103, which provides: “(1) Authentication of Copy. An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has the custody. If the…
Practitioners open The State of Washington, Respondent, v. Ernest Milton Kelly, Appellant when Washington authentication turns on the distinction in this sentence: "Procedure 38, 34A Wn. (2d) 103, which provides: “(1) Authentication of Copy." Do not lift it out of the facts the court was deciding.
Allen v. Asbestos Corp., Ltd.
Allen v. Asbestos Corp., Ltd., 157 P.3d 406 (2007)
…ved to strike the exhibit as hearsay and for lack of proper authentication. ¶ 16 Allen claimed that the exhibit was admissible under the ancient documents exception to the hearsay rule (ER 803(a)(16)), but the trial court ruled that Allen had failed to authenticate the exhibit as an ancient document. The day before the summary judgment hearing, Allen submitted a declaration fro…
Allen v. Asbestos Corp., Ltd. is worth reading on Washington authentication because the court put the point in its own words: "Allen claimed that the exhibit was admissible under the ancient documents exception to the hearsay rule (ER 803(a)(16)), but the trial court ruled that Allen had failed to authenticate the exhibit as an ancient document." Use that passage as the starting point, then read the facts that precede it.
State v. Jackson
State v. Jackson, 54 P.3d 739 (2002)
…e claims in part that the trial court violated the rules on authentication and hearsay by admitting a 911 tape. Disagreeing, we affirm. Warren Jackson and Katreace Moore had a child together but were not living together. On evening of April 8, 2000, he went to her apartment and entered her bedroom, where he found another man. According to the State's witnesses at trial, he walk…
On authentication, State v. Jackson speaks to the Washington dispute in this passage: "Disagreeing, we affirm. Warren Jackson and Katreace Moore had a child together but were not living together. On evening of April 8, 2000, he went to her apartment and entered her bedroom, where he found another man." The surrounding opinion shows how the court applied that language to the record.
The State of Washington, Respondent, v. Roger Lee Thompson, Appellant
The State of Washington, Respondent, v. Roger Lee Thompson, Appellant, 35 Wash. App. 766 (1983)
…argues that RCW 5.44.0402 provides the exclusive method of authenticating public records. The State contends that the records were properly introduced under the Uniform Business Records as Evidence Act, RCW 5.45.020.3 We hold that the records *770were properly authenticated. ER 901(a) provides "The requirement of authentication or identification as a condition precedent to adm…
On authentication, The State of Washington, Respondent, v. Roger Lee Thompson, Appellant speaks to the Washington dispute in this passage: "RCW 5.44.0402 provides the exclusive method of authenticating public records. The State contends that the records were properly introduced under the Uniform Business Records as Evidence Act, RCW 5.45.020.3 We hold that the records *770were properly authenticated." The surrounding opinion shows how the court applied that language to the record.
Practice checklist
- State the relevance theory in one sentence before naming an exception.
- Run the 403 / unfair-prejudice balance explicitly for other-acts and graphic exhibits.
- For character or other-acts evidence, identify the non-propensity purpose and request a limiting instruction on the record.
- Decide whether an out-of-court statement is hearsay for the purpose offered before hunting exceptions.
- Lay business-records foundations with time, knowledge, regular practice, and custodial qualifications — or a qualifying certification.
- Prove unavailability with specific facts before offering former testimony or dying declarations.
- Treat deposition use as procedure-plus-hearsay; designate and counter-designate early.
- Authenticate every exhibit under Wash. ER 901, 902 (or the self-authentication path) before arguing hearsay.
- Preserve chain of custody for physical and digital evidence with named custodians.
- Search LawDiver for recent Washington appellate evidence opinions before mediation or motions in limine.
Frequently asked questions
What is the primary evidence source in Washington?
Washington applies the Washington Rules of Evidence. Washington's ER rules track the FRE; Wash. R. Evid. (ER) 401–902 govern superior court trials statewide.
How do Washington courts decide relevance and unfair prejudice?
Under Wash. ER 401, 403, evidence must make a fact of consequence more or less probable, and the court may exclude relevant evidence when unfair prejudice, confusion, or waste of time substantially outweighs its probative value.
Are party admissions hearsay in Washington?
Party-opponent statements under Wash. ER 801(d)(2) are generally excluded from the hearsay ban (or treated as an exception, depending on local drafting). They may be offered against the party who made or adopted them without showing unavailability.
What foundation is required for business records?
Under Wash. ER 803(6), show a record made at or near the time from someone with knowledge, kept in the course of a regularly conducted activity, as a regular practice, through a custodian, qualified witness, or allowed certification — subject to trustworthiness attack.
When can I use a deposition at trial in Washington?
Civil Rule 32 governs deposition use at trial in Washington superior courts. CrR 4.7 addresses criminal discovery; deposition testimony at trial requires Wash. ER 804(b)(1) when unavailability is established.
Why is authenticity separate from hearsay?
Authenticity asks whether the item is what you claim it is; hearsay asks whether out-of-court assertions inside it may be used for their truth. You can lose on either ground independently. Washington authenticity practice starts with Wash. ER 901, 902.
Where do dying declarations and medical statements fit?
Dying declarations under Wash. ER 804(b)(2) require belief in impending death and concern the cause or circumstances of that believed death. Medical statements under Wash. ER 803(4) require a genuine diagnostic or treatment purpose and reasonable pertinence to care.