(b) Dismissal. An action wherein a receiver has been appointed shall not be dismissed except by order of the court.

     (c) Notice to Creditors. A general receiver appointed to liquidate and wind up affairs shall, under the direction of the court, give notice to the creditors of the corporation, of the copartnership, or of the individual, by publication in a newspaper of general circulation in the county in which the action is pending, once each week for 3 weeks, requiring such creditors to file their claims, duly verified, with the receiver, his attorney, or the clerk of the court, within 30 days from the date of first publication of such notice. If necessary to afford proper notice to such creditors, the court may by order enlarge the time for such publication or direct publication of such notice in other counties. In addition to such publication, the receiver shall give actual notice by mail at their last known addresses to all persons and parties to him known to be or to claim to be creditors.

     (d) Request for Special Notices. At any time after a receiver is appointed, any person interested in said receivership as a party, creditor, or otherwise, may serve upon the receiver (or upon the attorney for such receiver) and file with the clerk a written request stating that he desires special notice of any and all of the following named matters, steps or proceedings in the administration of said receivership, to wit:

     (1) Filing of petitions for sales, leases, or mortgages of any property in the receivership;

     (2) Filing of accounts;

     (3) Filing of petitions for removal or discharge of receiver; or

     (4) Such other matters as are officially requested and approved by the court.

     Such request shall state the post office address of such person, or his attorney.

     The comments here focus on the intent of the drafters with respect to prior Washington law and on the reasons for departures from the federal rules. In these comments, the word "drafters" refers only to the Washington Judicial Council and its Task Force on Evidence. It does not refer to Congress, the Washington State Supreme Court, or to any other judicial or legislative body.

     "Following the rules is not an end in itself. Rather, the rules are carefully designed to enable judges, lawyers, litigants, and juries to achieve sound results.... Rule 102 recognizes the responsibility judges bear by enumerating goals which cannot be achieved mechanically, and which will compete with one another at times." 10 Moore's Federal Practice ¶ 102.02 (1976). See also United States v. Jackson, 405 F.Supp. 938 (1975).

     This approach implies a considerable grant of discretion to the trial judge in situations not explicitly covered by the rules which may require differentiated treatment in the light of special factors. 1. J. Weinstein, Evidence ¶ 102[01] (1975). The rules place a burden on the lawyer to explain his position and the reasons for it at the trial level. It also places heavy burdens on the trial judge. J. Weinstein, supra.

     Section (b). This section is the same as Federal Rule 103(b) except that the word "It" in the second sentence is changed to "The court" to improve readability. As a practical matter, the section is consistent with prior Washington law. The previous Washington rule, CR 43(c), provided that the court's statements about the character of the evidence had to be made in the absence of the jury. Although this mandatory provision is not found in rule 103, section (c) encourages the statements to be made in the absence of the jury, and this procedure would ordinarily be required in order to conform to the state constitutional prohibition against a judge commenting on the evidence. Const. art. 4, § 16.

     Section (c). This section is the same as Federal Rule 103(c) and differs slightly from prior Washington law. The previous rule, CR 43(c), distinguishes between offers of proof and statements by the court. Under that rule, the court could, in its discretion, direct that an offer of proof be made in the absence of the jury, but a statement by the court as to the character of the evidence had to be made in the absence of the jury. Under rule 103(c), inadmissible evidence is to be kept from the jury "to the extent practicable."

     The court's discretion under rule 103(c) must be exercised cautiously in light of the state constitutional prohibition against a judge commenting on the evidence. Const. art. 4, § 16.

     Section (d). Federal Rule 103(d), Plain error, is deleted. The Washington Supreme Court recently codified the extent to which an error may be asserted for the first time in an appellate court. See RAP 2.5(a). Rule 103(d) defers to the Rules of Appellate Procedure and the decisions construing them.

     The proceedings to which the rules of evidence do, and do not, apply are discussed in more detail in the comment to rule 1101.

     Section (b). This section is the same as Federal Rule 104(b) and defines a procedure for handling the situation in which a party wishes to prove fact A, but fact A is relevant only if fact B is established. The order of proof under this rule, as generally, is determined by the judge. Rule 611. The court, in its discretion, may decide whether to hear evidence of fact A or B first, taking into account the relative prejudice of having the jury hear one rather than the other if the proponent fails to offer evidence of one of them sufficient to warrant a finding of its truth. Because of this danger of prejudice, the rule should be used with caution, especially in criminal cases.

     The rule is substantially in accord with previous Washington law. See State v. Whetstone, 30 Wn.2d 301, 191 P.2d 818, cert. denied, 335 U.S. 858 (1948); 5 R. Meisenholder, Wash.Prac. § 1 (1965 & Supp.).

     Section (c). This section is the same as Federal Rule 104(c). In a criminal case, a hearing on the admissibility of a confession is constitutionally required to be conducted in the absence of the jury. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964). The rule further provides that the accused, as a witness, is entitled on request to have any preliminary hearing conducted in the absence of the jury. In other situations, and in civil cases, the judge has discretion to decide whether the interests of justice require preliminary matters to be considered in the absence of the jury. Accord, Gilcher v. Seattle Elec. Co., 82 Wash. 414, 144 P. 530 (1914).

     Section (d). This section is the same as Federal Rule 104(d) and is consistent with prior Washington law. It is designed to encourage participation by the accused in the determination of preliminary matters. Portions of the subject matter of rule 104 are covered in superior court by CrR 3.5(b), a more detailed rule. CrR 3.5 is not superseded by rule 104. The rules are not in conflict, and both apply in superior court. Neither rule prevents cross examination of the accused as to credibility at a preliminary hearing. See 1 J. Weinstein, Evidence ¶ 104[10] (1975).

     Rule 104 does not address itself to questions of the subsequent use of testimony given by an accused at a preliminary hearing. See Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). In superior court, CrR 3.5(b) restricts the use of preliminary testimony in some respects.

     Prior Washington law has not offered a comprehensive theory of judicial notice. 5 R. Meisenholder, Wash. Prac. § 591 (1965 & Supp.) (hereinafter Meisenholder). Rule 201 establishes a coherent theoretical basis for the taking of judicial notice of adjudicative facts.

     Section (a). The rule applies only to judicial notice of "adjudicative facts" as distinguished from "legislative facts". An adjudicative fact is the "what-happened", "who-did-what-and-when" kind of question that normally goes to a jury. It seems reasonable to require, as the rule does, that a judicially noticed adjudicative fact must be one not subject to reasonable dispute. Legislative facts are those a court takes into account in determining the constitutionality or interpretation of a statute or the extension or restriction of a common law rule upon grounds of policy. They will often hinge on social, economic, or political facts not generally known by intelligent people or readily determinable by resort to sources of unquestioned accuracy. See 2 K. Davis, Administrative Law § 15.03 (1958). Section (a) excludes legislative facts from the operation of the rule.

     The determination of foreign law is governed by CR 44.1 and RCW 5.24.

     Section (b). This section requires that a judicially noticed fact must not be subject to reasonable dispute and that it must be either generally known in the area or readily found in noncontroversial references.

     For purposes of judicial notice, no distinction between adjudicative and legislative facts has been recognized in prior Washington law. Washington opinions have stated that courts may take judicial notice of facts which are within the common knowledge of the community and facts which are capable of certain verification by reference to competent authoritative sources. Rogstad v. Rogstad, 74 Wn.2d 736, 446 P.2d 340 (1968). See Meisenholder §§ 592, 593. This is consistent with section (b) and adoption of the rule does little to change the kinds of adjudicative facts which may be judicially noticed in Washington. Judicial notice of legislative facts continues to be governed by previous Washington law.

     Sections (c) and (d). Under section (c), the court has discretionary authority to take judicial notice, regardless of whether it is requested by a party. The taking of judicial notice is mandatory under section (d) only when a party requests it and the necessary information is supplied. No procedure is specified to determine what types of information may be considered, and from what sources; nor is the process of evaluation defined. These matters are, however, often defined by statute.

     A number of statutes require the taking of judicial notice in specific instances. See, for example, RCW 4.36.090 (private statutes); RCW 4.36.110 (any ordinance of a city or town in Washington); RCW 5.24.010 (constitution, common law, and statutes of every state, territory, and other jurisdiction of the United States); RCW 28B.19.070 (rules for higher education); RCW 34.04.050(8) (rules of state agencies); RCW 35.03.050 (certain city charters); RCW 35.06.070 (existence of incorporated cities); RCW 35.22.110 (charters of first class cities); RCW 35A.08.120 (certain city charters); RCW 49.48.040 (seal of the Department of Labor and Industries of the State of Washington); RCW 49.60.080 (seal of state human rights commission); RCW 50.12.010 (seal of the employment security commissioner); RCW 51.52.010 (seal of the board of industrial insurance appeals); and RCW 61.12.060 (economic conditions -- discretionary with court).

     The statutes cited are not in conflict with rule 201 and are not superseded. To the extent that a statute applies to legislative facts, the rule does not apply at all. To the extent that a statute applies to adjudicative facts, the statute states a more specific requirement than the more general process of broad applicability defined in the rule.

     As a general rule, a court may take judicial notice of court records in the same case, but not records of a different case. This rule and certain exceptions are discussed in Meisenholder § 594.

     Section (e). Basic considerations of procedural fairness require an opportunity to be heard on the propriety of taking judicial notice and the tenor of the matter noticed. The rule provides this opportunity on request. If a party has received no prior notification that judicial notice will be taken, a request to be heard may be made after judicial notice has been taken. No formal procedure for giving notice is defined.

     There has been no prior Washington authority for the proposition stated in section (e), but an opportunity to be heard may often have been accorded as a matter of practice. Meisenholder § 597.

     Section (f). Section (f) appears to be consistent with prior Washington law. There are no decisions authorizing any particular practices or procedures for raising questions of whether particular facts should be judicially noticed. However, it seems beyond dispute that judicial notice may, under appropriate circumstances, be taken by appellate courts. See Meisenholder § 596.

     Federal Rule 201(g), Instructing jury, is deleted. That rule provides:

     (g) Instructing Jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

     Article IV, Section 16 of the Washington Constitution prohibits the court from charging the jury with respect to disputed matters of fact. See Hansen v. Wightman, 14 Wn.App. 78, 538 P.2d 1238 (1975) for a recent discussion of this provision. The drafters of the Washington rules felt that a literal application of the Federal Rule may be unconstitutional in some circumstances. The State of Nevada, in promulgating rules of evidence based on the federal rules, felt bound by a similar provision in its constitution to omit Federal Rule 201(g).

     In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.

     On reconsideration, the Judicial Council decided to delete the proposed rule from its draft. This decision was based primarily on the fact that the federal courts have not yet developed a uniform practice under the rule, and that we would, in effect, be adopting a rule without knowing its intended application in practice. The Council was particularly concerned about the rule's effect upon "enhanced" presumptions which can be overcome only by clear, cogent, and convincing evidence. The commentators do not agree upon the intended effect of the federal rule in this regard. Some Judicial Council members also expressed the belief that presumptions were beyond the Supreme Court's rulemaking authority.

     It is recognized that certain circumstances call for the exclusion of evidence which is of unquestioned relevance. The rule lists six safeguards by which the trial judge may, in the exercise of discretion, exclude evidence even though it is relevant.

     The rule does not specify surprise as a ground of exclusion, following Wigmore's view of the common law. 6 Wigmore § 1849. The advisory committee note to Federal Rule 403 observes that claims of unfair surprise may still be justified in some cases despite procedural requirements of notice and the availability of discovery, but that the granting of a continuance is a more appropriate remedy than exclusion of the evidence.

     Section (a). Section (a) deals with the question whether character evidence should be admitted to prove that a person acted in conformity therewith on a particular occasion. This use of character evidence is often called "circumstantial". The basic premise is that circumstantial character evidence is inadmissible unless it falls within one of the three exceptions. Once the admissibility of character evidence in some form is established under this rule, reference must then be made to Rule 405 in order to determine the appropriate method of proof. If the character is that of a witness, Rules 608 and 609 provide methods of proof.

     To be distinguished are cases in which a person's character is "in issue". The admissibility of character evidence as proof of a material element is governed by rule 405, not rule 404.

     Rule 404 does not permit the admission of circumstantial character evidence in civil cases. Under rules 404 and 405, evidence of character is admissible in a civil case only if the person's character is actually in issue. Previous Washington law is in accord. 5 R. Meisenholder, Wash. Prac. §§ 2, 3 (1965 & Supp.) (hereinafter Meisenholder).

     Under rule 404 (a)(1), the accused in a criminal case may introduce evidence of his good character. Accord, State v. Arine, 182 Wash. 697, 48 P.2d 249 (1935). The evidence must be directed toward a trait of character which is pertinent to rebut the nature of the charge against the defendant. State v. Schuman, 89 Wash. 9, 153 P. 1084 (1915). A character witness for the accused is limited by rule 405(a) to testimony as to the reputation of the accused. Neither rules 404 and 405 nor previous Washington law permit the accused to demonstrate his good character by having a witness testify as to specific instances of good conduct by the accused. 2 J. Weinstein, Evidence ¶ 405[04], at 405-39 (1976); Meisenholder § 4, at 21 n. 7.

     If the accused introduces evidence of good character under rule 404 (a)(1), the prosecution may rebut the evidence either by testimony from the prosecutor's own witnesses or by cross-examining the accused's witnesses. 2 J. Weinstein, Evidence ¶ 404[04], at 404-25 (1976). Rebuttal testimony by the prosecution's witnesses is limited under rule 405(a) to the reputation of the accused, but the prosecutor may inquire into specific instances of conduct on cross examination of the witnesses for the accused. 2 J. Weinstein, Evidence, at 405-20. Prior Washington law is in accord. Meisenholder § 4, at 22 n. 15, 23 n. 20.

     Rule 404 (a)(2) admits evidence of the character of the victim in a criminal case under certain circumstances. Previous Washington law is substantially in accord with the rule. Where there is an issue of self-defense, the accused may show the victim was the first aggressor by character evidence of the victim's reputation for violent disposition or for using deadly weapons in quarrels or fights. Meisenholder § 4, at 24. Evidence of specific acts or conduct is inadmissible to show the character of the victim, but it may be admissible for the limited purpose of showing whether the accused had a reasonable apprehension of danger from the victim. State v. Walker, 13 Wn.App. 545, 536 P.2d 657 (1975). In rebuttal, the prosecution may show the victim's good character for the pertinent trait, but only after the defendant has attacked that good reputation. Meisenholder § 4, at 25.

     In rape cases, RCW 9A.44.020 defines detailed restrictions upon disclosure of the victim's past sexual behavior. By the terms of rule 402, the statute prevails over conflicting provisions in rule 404. See the comment to rule 402.

     Section (b). Evidence of other crimes, wrongs, or acts is not admissible to prove character as a basis for suggesting that conduct on a particular occasion was in conformity with it. The evidence may, however, be offered for another purpose such as proof of motive or opportunity. The court must determine whether the danger of undue prejudice outweighs the probative value of the evidence, in view of the availability of other means of proof and other factors. Slough & Knightly, Other Vices, Other Crimes, 41 Iowa L.Rev. 325 (1956). Previous Washington law is in accord. See State v. Whalon, 1 Wn.App. 785, 464 P.2d 730 (1970).

     Section (a). This section differs from Federal Rule 405 in that the Washington rule does not permit proof of character by testimony in the form of an opinion. Previous Washington law has not permitted the introduction of opinion testimony to prove a person's character. Thompson-Cadillac Co. v. Matthews, 173 Wash. 353, 23 P.2d 399 (1933); Johansen v. Pioneer Mining Co., 77 Wash. 421, 137 P. 1019 (1914); 5 R. Meisenholder, Wash. Prac. § 4 (1965 & Supp.). The drafters of the Washington rule felt that the policy established by decisional law was preferable to that of the federal rule.

     On a practical level, the drafters were convinced that weaknesses in such opinion testimony cannot be exposed except with difficulty by cross examination of the witness, and that challenges to the witness' answers on cross examination by extrinsic evidence may not be completely realistic and that it may in effect disguise the opinion of the witness who testifies to reputation. However, again on a practical level, it seems preferable to opinion testimony, because it can much more easily and clearly be tested by cross examination of the witness.

     References to opinion testimony were similarly deleted from rule 608.

     Section (b). This section is the same as Federal Rule 405(b) and appears to be consistent with existing Washington law. See Johansen v. Pioneer Mining Co., 77 Wash. 421, 137 P. 1019 (1914); Meisenholder §§ 2, 4.

     It is not clear to what extent the rule changes previous Washington law. There are cases contrary to the rule, particularly where the evidence bears on the issue of negligence. Rossier v. Payne, 125 Wash. 155, 215 P. 366 (1923); State v. Lewis, 37 Wn.2d 540, 225 P.2d 428 (1950). In a recent case arising out of an automobile accident, the defendant sought to introduce testimony to the effect that the plaintiff was always a fast driver and always drove recklessly. The Court of Appeals affirmed the trial judge's refusal to admit the testimony, saying that it was irrelevant to the issue of whether the recklessness or speed of the plaintiff was the cause of the particular accident in issue. Breimon v. General Motors Corp., 8 Wn.App. 747, 509 P.2d 398 (1973).

     The rule of exclusion has been applied to evidence introduced on the question of liability. Cochran v. Harrison Mem. Hosp., 42 Wn.2d 264, 254 P.2d 752 (1953). Washington courts have justified the principle on the ground that such evidence is irrelevant, Aldread v. Northern Pac. Ry., 93 Wash. 209, 160 P. 429 (1916), and that it is contrary to the policy of encouraging safety measures to admit such evidence. Carter v. Seattle, 21 Wash. 585, 59 P. 500 (1899).

     The rule bars evidence to prove "negligence or culpable conduct." It has been held that a virtually identical California statute is inapplicable to a products liability case in which the manufacturer is alleged to be strictly liable for placing a defective product on the market. Ault v. Int'l Harvester Co., 13 Cal.3d 113, 117 Cal.Rptr. 812, 528 P.2d 1148 (1975). But see Smyth v. Upjohn Co., 529 F.2d 803 (2d Cir. 1975) to the contrary.

     The Washington cases are consistent with the rule in admitting evidence of subsequent remedial measures for purposes other than proving liability. The rule cites as examples proving ownership, control, or feasibility of precautionary measures, or impeachment. In Washington, see Hatcher v. Globe Union Mfg. Co., 170 Wash. 494, 16 P.2d 824 (1932), Brown v. Quick Mix Co., 75 Wn.2d 833, 454 P.2d 205 (1969) on feasibility of precautionary measures; Peterson v. King County, 41 Wn.2d 907, 252 P.2d 797 (1953) on nature of conditions existing at time of incident; Cochran v. Harrison Mem. Hosp., supra, dictum on issue of control of an instrumentality.

     The first sentence codifies the common law rule that evidence of an offer to compromise a claim is inadmissible to prove liability or lack thereof. It is consistent with previous Washington law. See Eagle Ins. Co. v. Albright, 3 Wn.App. 256, 474 P.2d 920 (1970). The foundation of the rule in Washington, as in the federal rules, is the policy favoring compromise and settlement of disputes. Berliner v. Greenberg, 37 Wn.2d 308, 223 P.2d 598 (1950).

     The second sentence of the rule changed federal law by making evidence of conduct or statements made in compromise negotiations inadmissible. Cf. Factor v. Commissioner, 281 F.2d 100 (9th Cir. 1960). Similarly in Washington, the conduct or statements have been allowed in evidence as admissions of a party opponent, Romano Eng'g Corp. v. State, 8 Wn.2d 670, 113 P.2d 549 (1941), unless the statement of fact is expressly made without prejudice. Wagner v. Peshastin Lumber Co., 149 Wash. 328, 270 P. 1032 (1928).

     By contrast, rule 408 makes the evidence inadmissible and is based on the policy of promoting complete freedom of communication in compromise negotiations. Parties are encouraged to make whatever admissions may lead to a successful compromise without sacrificing portions of their case in the event such efforts fail. The rule avoids the generation of controversy over whether a statement was within or without the area of compromise negotiations.

     The rule also provides that the exclusionary rule applies only to claims disputed as to validity or amount. There has been no previous authority on this issue in Washington. 5 R. Meisenholder, Wash. Prac. § 9 (1965 & Supp.).

     The third sentence, relating to evidence otherwise discoverable, was added by Congress to the Supreme Court draft of the federal rules. The sentence clarifies the dual objective of rule 408 to encourage compromise and to prevent immunization of evidence merely because it is presented in the course of compromise negotiations. 10 Moore's Federal Practice § 408.06 (1976). A party may not use rule 408 as a screen for curtailing the opposing party's rights to discovery. 2 J. Weinstein, Evidence ¶ 408[01] (1976). The Senate Report on rule 408 suggests, for example, that documents disclosed in compromise negotiations are not thereby insulated from discovery. The Conference Report makes it clear that this provision applies to factual evidence as well.

     "Perjury" and "false statement" are used generically in the rule to refer to crimes of that nature, regardless of their designations in the criminal code or other applicable statutes.

     To admit a withdrawn guilty plea into evidence would frustrate the purpose of allowing the withdrawal and would place the accused in a dilemma inconsistent with the decision to award him a trial. Withdrawn pleas of guilty have long been inadmissible in federal prosecutions. Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). Rule 410 conforms to this practice. The provisions making offers to compromise inadmissible are designed to encourage the disposition of criminal cases by compromise.

     The rule similarly makes pleas of nolo contendere inadmissible. This plea is not recognized in Washington, and rule 410 does not create the right to a plea of nolo contendere. See CrR 4.2(a). The rule would apply only to a plea in a jurisdiction which permits the plea, entered by a person later involved in proceedings in a Washington court.

     The rule protects from disclosure only statements "made in connection with, and relevant to" the plea or offer. The rule should not be interpreted as barring admission of statements made to police officers during the early stages of investigation, before an indictment or information is filed. 2 J. Weinstein, Evidence ¶ 410[07] (1975). Nor are statements made as a result of a plea bargain necessarily inadmissible. In Hutto v. Ross, 429 U.S. 28, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976), the defendant had entered into a plea bargain. Two weeks later he confessed to the crime charged. He subsequently withdrew from the bargain and demanded a trial. The Court held the confession admissible, so long as it was voluntary and the defendant knew he could have enforced the bargain whether he confessed or not.

     Similarly, the rule probably does not bar the admission of evidence derived as a result of a statement which is inadmissible under rule 410. Suppose that the defendant accepts the prosecutor's offer to accept a guilty plea to a lesser offense if the defendant discloses the location of stolen property. The property is retrieved. The defendant later withdraws the plea and demands a trial. Although no cases directly in point have been found, rule 410 would not appear to bar the use of the property at trial as evidence of the defendant's guilt.

     The rule is broadly drafted to include contributory and comparative negligence or other fault of the plaintiff as well as fault of a defendant. Like rules 407 and 408, rule 411 allows the evidence if offered for a purpose other than determining fault, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

     "It is undoubtedly the general rule in this state, in personal injury cases, that the fact that the defendant carries liability insurance is entirely immaterial on the main issue of liability..." Williams v. Hofer, 30 Wn.2d 253, 265, 191 P.2d 306 (1948).

     Existing Washington law is consistent with the rule in admitting evidence of liability insurance for purposes other than a determination of liability. See Robinson v. Hill, 60 Wash. 615, 111 P. 871 (1910) on issue of agency; Jerdal v. Sinclair, 54 Wn.2d 565, 342 P.2d 585 (1959) on issue of ownership of automobile; Moy Quon v. Furuya Co., 81 Wash. 526, 143 P. 99 (1914) on issue of bias or prejudice of witness.

     With respect to the plaintiff's insurance coverage, it seems probable that the fact that plaintiff is so covered is inadmissible. 5 R. Meisenholder, Wash. Prac. § 8 (1965 & Supp.), citing Rich v. Campbell, 164 Wash. 393, 2 P.2d 886 (1931). This is in accord with the rule, as is the prohibition against defendant's introduction of evidence that he does not have liability insurance. King v. Starr, 43 Wn.2d 115, 260 P.2d 351 (1953).

     Civil Cases. Washington statutory law is more restrictive than the federal rules. The basic statutory provision on competence is RCW 5.60.020: "Every person of sound mind, suitable age and discretion, except as hereinafter provided, may be a witness in any action, or proceeding." This statute is supplemented by RCW 5.60.050 which specifies those who are incompetent to testify: "[t]hose who are of unsound mind, or intoxicated at the time of their production for examination, and... [c]hildren under ten years of age, who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly.

     "The statutory provisions requiring that a witness be of sound mind have been interpreted as being a codification of the common law rule as to mental capacity. A person will be held competent to testify if he understands the nature of an oath and is capable of giving a correct account of what he has seen and heard. State v. Moorison, 43 Wn.2d 23, 259 P.2d 1105 (1953).

     The trial judge has wide discretion in determining the competency of a child as a witness. There is a presumption that a child over ten years of age is competent to testify. For children under ten years of age the test is fairly explicit. "Where it appears that a child has sufficient intelligence to receive just impressions of the facts respecting which he is to testify, has sufficient capacity to relate them correctly and has received sufficient instruction to appreciate the nature and obligations of an oath, he should be permitted to testify no matter what his age." (Footnotes omitted.) Stafford, The Child as a Witness, 37 Wash.L.Rev. 303, 304-05 (1962). It is often appropriate to determine the competency of a child in the absence of the jury. This procedure is authorized by rule 104(c).

     The competency of a person who has been convicted of a crime is the subject of several codified rules. The original Washington statute, RCW 5.60.040, provides that, "any person who shall have been convicted of the crime of perjury shall not be a competent witness in any case, unless such conviction shall have been reversed, or unless he shall have received a pardon." A later statute, RCW 10.52.030, provides that, "[e]very person convicted of a crime shall be a competent witness in any civil or criminal proceeding". This later statute contained no exception for those convicted of perjury. Mullin v. Builders Dev. & Fin. Serv., Inc., 62 Wn.2d 202, 381 P.2d 970 (1963) held that RCW 10.52.030 applied only to criminal cases, while RCW 5.60.040 applied only to civil cases. Thus, the Washington law appears to be that prior conviction of a crime does not make a witness incompetent to testify except, in a civil case, for a prior conviction of perjury.

     Interest was abolished as a ground for disqualification by RCW 5.60.030, but that statute does contain an exception to that rule in the form of a dead man's statute.

     As to religious beliefs, see the comment to rule 610.

     Criminal Cases in Superior Court. Competency of witnesses in superior court criminal cases is governed by CrR 6.12. The language of the rule is quite broad. By its terms, interest is abolished as a basis for incompetency. As to age, the rule eliminates the ten-year-old standard and applies the test of competency to children generally.

     By implication, the rule abolishes other bases of incompetency. Among those are conviction of crime and religious belief. The rule parallels the law in civil cases by retaining unsound mind and intoxication as grounds for a finding of incompetency.

     The Supreme Court has not determined by written opinion whether the statutory grounds for incompetency apply in criminal cases after the adoption of CrR 6.12, and the issue appears to be debatable. See 5 R. Meisenholder, Wash. Prac. §§ 164, 165 (1975 Supp.). The drafters of the rules of evidence recommended that the law be clarified by incorporating the rules of evidence by reference into CrR 6.12(a). Because the rules of evidence incorporate the statutory grounds for incompetency, the statutes would also become clearly applicable to criminal cases.

     The rule provides for automatic objection. This saves counsel from the predicament of choosing between remaining silent and thereby waiving objection, or objecting, which is apt to be considered an offensive attack on the judge's integrity.

     This rule is contrary to RCW 5.60.010, which provides that a juror who is otherwise competent may testify at trial. Although rule 601 defers generally to statutes, it only defers to statutes which make a person incompetent to testify. It leaves open the possibility for subsequent court rules establishing other grounds for incompetency. Thus, rule 606 prevails over, and supersedes, RCW 5.60.010.

     There is precedent for permitting impeachment of one's own witness. Rule 32 (a)(1) of the Federal Rules of Civil Procedure allows any party to impeach a witness by means of a deposition, and rule 43(b) has allowed the calling and impeachment of an adverse party or of a person identified with an adverse party. Similar provisions are found in the corresponding civil rules in Washington.

     By statute, a rape victim's reputation concerning sexual matters is inadmissible in proceedings against the accused. RCW 9A.44.020. The statute is consistent with the rule and is not superseded.

     Section (b). This section is the same as Federal Rule 608(b) and gives the court discretion to allow inquiry on cross examination into specific instances of conduct bearing upon the credibility of the witness. The effect of rule 608(b) upon existing Washington law is not entirely clear. Although there is not total consistency in the Washington case law, the general rule appears to be that acts of misconduct not the subject of a prior conviction have not been admissible for impeachment purposes. "[A] witness may not be impeached by showing specific acts of misconduct. This is true whether the impeachment is attempted by means of extrinsic evidence or cross-examination." (Citations omitted.) State v. Emmanuel, 42 Wn.2d 1, 13, 253 P.2d 386 (1953). There are some cases written in terms of a discretionary power in the judge to admit evidence of acts of misconduct, but these appear to be early cases and probably do not represent the current rule. Meisenholder § 301. Prior to the adoption of RCW 9.79.150, in prosecutions involving sexual matters, the judge had the discretionary power to permit the prosecuting witness to be questioned about acts of unchastity. State v. Linton, 36 Wn.2d 67, 216 P.2d 761 (1950). The statute removes the judge's discretion by making sexual conduct inadmissible on the issue of credibility. The drafters of the Washington rules felt that the rule, restricted as it is to matters probative of truthfulness or untruthfulness, clarified the law and reflected a sound policy.

     A third, unlettered section appears in Federal Rule 608. That section provides:

     The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to matters which relate only to credibility.

     Two Washington statutes provide that the credibility of a witness may be attacked by evidence that the witness had been previously convicted of a crime. RCW 5.60.040; 10.52.030. The statutes, and some limitations developed by decisional law, are discussed in 5 R. Meisenholder, Wash. Prac. § 300 (1965 & Supp.). The Washington Supreme Court has recently expressed some concern about the constitutionality of the statutes, but it has not invalidated them. State v. Murray, 86 Wn.2d 165, 543 P.2d 332 (1975) (Rosellini, J., concurring); State v. Hultenschmidt, 87 Wn.2d 212, 550 P.2d 1155 (1976). Justice Rosellini, concurring in State v. Murray, above, observed that, "These statutes, relating as they do to the judicial process, may be superseded by rule of court." 86 Wn.2d at 170. Rule 609 offers a balance between the right of the accused to testify freely in his own behalf and the desirability of allowing the State to attack the credibility of the accused who chooses to testify. The two statutes in point are superseded.

     Section (a). This section narrows the scope of convictions which may be used to impeach the accused in a criminal case. RCW 10.52.030, which is superseded by the rule, did not contain the restrictions expressed in section (a). This portion of the rule will not cause a different result in most civil cases because misdemeanor convictions were not ordinarily admissible for impeachment in civil cases under prior law, and they remain excluded by the 1-year limitation defined by the rule. See Willey v. Hilltop Assocs., 13 Wn.App. 336, 535 P.2d 850 (1975); RCW 9A.04.040.

     Section (b). This section narrows the scope of convictions which may be used for impeachment. No time limit was found in previous Washington law. See State v. Robinson, 75 Wn.2d 230, 450 P.2d 180 (1969).

     Section (c). This section supersedes prior Washington law holding that a pardon has no effect upon the admissibility of a conviction for impeachment. See State v. Serfling, 131 Wash. 605, 230 P. 847 (1924); State v. Knott, 6 Wn.App. 436, 493 P.2d 1027 (1972).

     Section (d). This section gives somewhat more discretion to the trial judge than prior Washington law holding juvenile adjudications inadmissible for impeachment. See State v. Temple, 5 Wn.App. 1, 485 P.2d 93 (1971). The federal term, "juvenile adjudication," is changed in the text of the rule to "finding of guilt in a juvenile offense proceeding". This change conforms to the Washington juvenile court act and makes it clear that adjudications of dependency remain inadmissible.

     Section (e). The first sentence of this section is consistent with prior Washington law. State v. Robbins, 37 Wn.2d 492, 224 P.2d 1076 (1950). There appears to be no prior law directly bearing upon the second sentence.

     In some situations a party may wish to use evidence of a prior conviction as substantive evidence of a fact alleged in subsequent litigation. Rule 609 would not apply because it relates only to impeachment by evidence of a conviction. Criminal convictions as substantive evidence are governed by rule 803 (a)(22).

     Section (a) of the federal rule abolishes the old English requirement that a witness be shown a prior written statement before opposing counsel can cross-examine the witness about the statement. Similarly, the federal rule provides that the contents of a prior oral statement need not be disclosed to the witness before cross examination.

     In Washington, previous decisional law is not entirely clear but appears to be closer to the common law view. With reference to the prior oral statements, counsel must ask foundation questions which substantially repeat the prior inconsistent statement and direct the attention of the witness to the circumstances under which he purportedly made the statement. With reference to prior written statements, similar foundation questions are required, but there appears to be no decisional law requiring the written statement to actually be shown to the witness before cross examination. 5 R. Meisenholder, Wash. Prac., Evidence § 296 (1965 & Supp.).

     The advisory committee's note to Federal Rule 613 indicates that the federal drafters considered the common law rule to be a "useless impediment to cross-examination." The drafters of the proposed Washington rule agreed to the extent that the common law requirement can be a useless impediment under some circumstances. The drafters felt, however, that the court should be given some measure of discretion to require that the prior statement be disclosed if it would be manifestly unfair to begin cross-examining the witness before disclosing the statement. Accordingly, section (a) of the rule provides that the court "may require" that the prior statement be shown or its contents disclosed to the witness before cross examination.

     Both the federal rule and the Washington rule also provide that the prior statement must, on request, be shown or disclosed to the lawyer who originally called the witness. This provision, which is consistent with previous law, protects against unwarranted insinuations that a statement was made when in fact it was not. It also serves to prepare counsel for an effort to rehabilitate the witness on redirect examination. Butcher v. Seattle, 142 Wash. 588, 253 P. 1082 (1927).

     Section (b) is the same as Federal Rule 613(b) and provides that extrinsic evidence of a prior inconsistent statement is not admissible unless the witness is given an opportunity to explain or deny the statement. Previous Washington law is in accord. Meisenholder § 296. The rule affords a measure of discretion in "the interests of justice" to allow for unusual circumstances such as a witness becoming unavailable by the time a prior inconsistent statement is discovered.

     There are prior Washington decisions to the effect that if the witness responds to foundation questions by admitting making the prior inconsistent statement, then extrinsic evidence of the statement is inadmissible. It is felt that the additional extrinsic evidence would usually be of little value and would be a waste of time. Meisenholder § 296. Although rule 613 does not expressly bar the admission of extrinsic evidence under these circumstances, rule 403 gives the court broad discretion to exclude evidence on the grounds that it would cause undue delay, be a waste of time, or that it is a needless presentation of cumulative evidence.

     Section (a). There is dictum to the effect that a trial judge may call witnesses in Washington. Ramsey v. Mading, 36 Wn.2d 303, 217 P.2d 1041 (1950). The phrase "where necessary in the interests of justice" has been added to the language of the federal rule to insure against unlimited, unreviewable discretion. If the court intends to call a witness, the judge, in fairness, should confer with counsel before calling the witness, and the conference should be on the record.

     The federal rule provides that the court may also call a witness "at the suggestion of a party." The Washington rule substitutes the phrase "on motion of a party." The drafters of the Washington rule felt that the word "suggestion" was ambiguous and that "motion" was more precise in terms of established practice under the civil and criminal rules.

     Section (b). A trial judge in Washington may question a witness so long as the questions do not violate the constitutional prohibition against a judge commenting on the evidence. Const. art. 4, § 16; State v. Brown, 31 Wn.2d 475, 197 P.2d 590, 202 P.2d 461 (1948); 5 R. Meisenholder, Wash. Prac. § 269 (1965 & Supp.).

     In several recent cases the Washington Supreme Court has cited section 401 of the Model Code of Evidence as controlling the admission of a lay opinion testimony in Washington. See Church v. West, 75 Wn.2d 502, 452 P.2d 265 (1969); 5 R. Meisenholder, Wash. Prac. section 341 (1975 Supp.). Section 401 would usually yield the same result as decisional law predating it. Some examples of admissible opinion testimony are: the speed of a vehicle, the mental responsibility of another, whether another was "healthy", the value of one's own property, and the identification of a person. Meisenholder section 341 (1975 Supp.). The 2004 amendment is not intended to affect the typical examples of admissible opinion testimony cited in the preceding sentence.

     Differences between existing Washington law and rule 701 are largely matters of form rather than substance. Although Model Code section 401 assumes that the witness may generally testify in terms of inference and opinion, the court may require the testimony to be stated in nonabstract detail if it finds that the witness is capable of doing so satisfactorily and that the statement by the witness of his conclusory inferences might mislead the trier of fact. Rule 701 approaches the problem in reverse. It assumes that the witness will give his testimony by stating his observations in as raw a form as practicable, but permits him to resort to inferences and opinions when this form of testimony will be helpful. Both rules give the trial court a wide latitude of discretion. As a practical matter, rule 701 is unlikely to change Washington law. See Meisenholder section 343.

     The expert will ordinarily be in the best position to know what data can be reasonably relied upon, and the court will usually follow the expert's advice on the point. The court's decision will, to a large extent, be based on the degree of confidence it has in the professional caliber and ethics of the expert group involved. Physicians are likely to be given more leeway than accidentologists. 3 J. Weinstein, Evidence ¶ 703[01].

     Except for testimony concerning foreign law, experts are not to state opinions of law or mixed fact and law. On this basis, questions such as whether X was negligent can be excluded. Meisenholder § 356.

     Legal writers and revisers have long favored reforming trial practice by implementing the trial judge's common law power to call experts. Their imprecations against the "battle of experts" led to the drafting of the Uniform Expert Testimony Act in 1937, which later formed the basis for rules 403-410 of the Model Code of Evidence, for rules 59, 60, and 61 of the Uniform Rules of Evidence, and Federal Rule of Evidence 706. 3 J. Weinstein, Evidence ¶ 706 [01] (1975).

     There is dicta in the Washington cases suggesting that a judge may appoint an expert witness in nonjury cases. Ramsey v. Mading, 36 Wn.2d 303, 310-11, 217 P.2d 1041 (1950). (The dictum in Ramsey was inaccurately characterized as a holding in State v. Swenson, 62 Wn.2d 259, 277, 382 P.2d 614 (1963).) A relatively small number of rules and statutes relate to the appointment and compensation of experts in specific kinds of cases. Rule 706 codifies the common law power of the court to call an expert and defines a procedure applicable to all cases.

     Expert witness fees in state condemnation proceedings are payable from public funds, as anticipated by Federal Rule 706, but only pursuant to a statutory scheme which imposes certain conditions and restrictions not found in the federal rule. See RCW 8.25.070. The statute does not mention the possibility of the expert being appointed by the court, and the statute does not authorize the disbursement of public funds for an appointed expert. The drafters of the Washington rule eliminated the language in Federal Rule 706 authorizing disbursement of public funds in deference to applicable statutes.

     Section (a). The definition of "statement" is consistent with previous Washington law. Oral assertions, written assertions, and assertive conduct all constitute statements, but acts of nonassertive conduct do not. 5 R. Meisenholder, Wash.Prac. § 387 (1965 & Supp.).

     Section (b). Section (b) is self-explanatory.

     Section (c). The definition of "hearsay" is substantially in accord with previous Washington law. See Moen v. Chestnut, 9 Wn.2d 93, 113 P.2d 1030 (1941).

     Section (d). This section excludes from the definition of hearsay several types of statements which literally are within the definition. Statements excluded from the hearsay rule section (d) are admissible as substantive evidence. The rule does not affect the use of prior inconsistent statements to impeach a witness. The use of these statements for impeachment is governed by rule 613.

     Subsection (d)(1) defines the extent to which prior out-of-court statements are admissible as substantive evidence if the declarant is presently available for cross examination at trial. One Washington case is in accord with the theory expressed by the rule. State v. Simmons, 63 Wn.2d 17, 385 P.2d 389 (1963). Other cases, however, are to the contrary. Meisenholder § 381. The rule clarifies the law by detailing the circumstances under which the statements are admissible and conforms state law to federal practice.

     Subsection (d)(1)(i) provides that a witness' prior inconsistent statement is admissible as substantive evidence if it was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. The rule does not require the statement to have been subject to cross examination at the time it was made. See 120 Cong. Rec. 2386 (1974), quoted in 4 J. Weinstein, Evidence 801-24 (1975). The rule would not, however, necessarily admit statements made in pretrial affidavits. The rule applies only to statements given in a trial, hearing, proceeding, or deposition. Although the meaning of "proceeding" is not yet clear, it has been observed that the words of limitation were designed in part to prevent the admission of affidavits given by a coerced or misinformed witness. 4 J. Weinstein, Evidence ¶¶ 801 (d)(1)[01], 801 (d)(1)(A)[01] (1975). The constitutionality of a California statute even less restrictive than rule 801 (d)(1)(i) was upheld in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

     Subsection (d)(1)(ii) makes statements admissible as substantive evidence which were previously admissible only to rehabilitate an impeached witness. See Meisenholder § 306.

     Subsection (d)(1)(iii) is consistent with previous Washington law. See State v. Simmons, 63 Wn.2d 17, 385 P.2d 389 (1963).

     Subsection (d)(2) differs from previous Washington law more in theory than in practice. Previous decisions have considered admissions by party-opponents to be hearsay but have admitted them as an exception to the hearsay rule. Meisenholder § 421. Rule 801 continues to admit the statements, not as an exception to the hearsay rule, but by excluding them from the definition of hearsay altogether.

     Statements of others that are expressly adopted by a party have been held admissible as admissions. State v. McKenzie, 184 Wash. 32, 49 P.2d 1115 (1935). Statements by authorized persons have been similarly held to be admissions. State ex rel. Ledger Pub'g Co. v. Gloyd, 14 Wash. 5, 44 P. 103 (1896).

     Federal Rule 801 provides in relevant part: "A statement is not hearsay if... [t]he statement is offered against a party and is... a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship...." The Washington cases have not adopted the rule of broader admissibility expressed by the federal rule. The traditional rule, which was applied in early Washington decisions, was that, "the acts and declarations of the agent, when acting within the scope of his authority, having relations to, and connected with, and in the course of, the particular transaction in which he is engaged, are, in legal effect, the acts or declarations of his principal." Tacoma & E. Lumber Co. v. Field & Co., 100 Wash. 79, 86, 170 P. 360 (1918). This was known as the "res gestae" rule, and the admissibility of an agent's statement depended upon how closely the statement was related to the transaction in question. Meisenholder § 425(1).

     Later decisions have phrased the rule not in terms of res gestae, but in terms of whether the agent was authorized to make the statement on behalf of the principal. Meisenholder § 425(1). This has become known as the "speaking agent" approach and has continued to be applied in relatively recent decisions. See, e.g., Kadiak Fisheries Co. v. Murphy Diesel Co., 70 Wn.2d 153, 422 P.2d 496 (1967). Accord, Restatement (Second) of Agency §§ 286-288 (1958). The drafters of the Washington rule felt that existing Washington law, as exemplified by the later cases, reflected the better policy and deleted the language in the federal rule which would have broadened the admissibility of statements by agents.

     Subsection (a)(1). This subsection is consistent with previous Washington law. Beck v. Dye, 200 Wash. 1, 92 P.2d 1113, 127 A.L.R. 1022 (1939).

     Subsection (a)(2). This subsection is consistent with previous Washington law. Beck v. Dye, supra.

     Subsection (a)(3). This subsection is a specialized application of the rule expressed in subsection (a)(1). Under previous law it was not clear whether statements to a physician of the declarant's present pain and suffering were admissible. See 5 R. Meisenholder, Wash.Prac. § 472 (1965 & Supp.). The statements are admissible under rule 803.

     Statements of the declarant's then existing state of mind have been admissible in Washington if there is need for their use and if there is circumstantial probability of their trustworthiness. Raborn v. Hayton, 34 Wn.2d 105, 208 P.2d 133 (1949). The rule is substantially in accord.

     The provision relating to wills appears to change Washington law. Cf. Carey v. Powell, 32 Wn.2d 761, 204 P.2d 193 (1949). This portion of rule 803 is based on practical considerations of necessity and expediency and conforms Washington law to the practice followed in a majority of American jurisdictions. 4 J. Weinstein, Evidence ¶ 803(3)[05] (1975).

     Subsection (a)(4). This subsection changes Washington law. Under previous cases, statements of past symptoms and statements relating to medical history, even though made to a treating physician, have been inadmissible as independent substantive evidence. Smith v. Ernst Hardware Co., 61 Wn.2d 75, 377 P.2d 258 (1962). Statements made to a treating or nontreating physician have been allowed into evidence, but only for the purpose of supporting the physician's medical conclusions. Kennedy v. Monroe, 15 Wn.App. 39, 547 P.2d 899 (1976). Rule 803 admits the statements for the purpose of proving the truth of the matter asserted. The justification for the rule, already followed in a number of states, is the patient's motivation to be truthful. Meisenholder § 472. Further, it is unrealistic to assume that a juror, instructed according to previous law, would be able to draw the distinction necessary to hear the statements in order to justify a medical conclusion but to disregard them as to the truth of the matter asserted.

     The rule is subject to the restrictions imposed by the law of privileged communications.

     Subsection (a)(5). This subsection codifies the familiar hearsay exception for past recollection recorded. Under previous Washington law, the exception only applied if the witness had no independent recollection of the facts. State v. Benson, 58 Wn.2d 490, 364 P.2d 220 (1961). Rule 803 is slightly broader in that it requires only that the witness must have insufficient recollection to testify fully and accurately.

     Subsection (a)(6). Federal Rule 803(6) is deleted, not because of any fundamental disagreement with the rule, but because the drafters felt that the subject matter was adequately covered by statutes and decisions already familiar to the bench and bar. See Meisenholder, ch. 28.

     Subsection (a)(7). Federal Rule 803(7) is modified to refer to RCW 5.45 rather than to subsection (a)(6). The rule resolves an issue which has not been addressed in this state's decisional law. Meisenholder § 516.

     Subsection (a)(8). Federal Rule 803(8) is deleted, not because of any fundamental disagreement with the rule, but because the drafters felt that the subject matter was adequately covered by the statute and decisions already familiar to the bench and bar. See Meisenholder, ch. 29.

     Subsection (a)(9). There do not appear to be any previous Washington cases or statutes directly bearing on the admissibility of vital statistics as a hearsay exception. RCW 5.44.040, preserved by subsection (a)(8), may be controlling in many instances.

     Subsection (a)(10). A similar provision is found in CR 44(b). CR 44 is not superseded.

     Subsection (a)(11). There do not appear to be any previous Washington cases or statutes directly in point, except to the extent that a religious organization may qualify as a "business" under RCW 5.45.010. Subsection (a)(11) clarifies the law by making specific records of religious organizations admissible as hearsay exceptions.

     Subsection (a)(12). There do not appear to be any previous Washington cases or statutes directly in point, except to the extent that the statutes preserved by subsection (a)(6) and (8) may also cover the subject matter of subsection (a)(12).

     Subsection (a)(13). This subsection conforms substantially to previous Washington law. Meisenholder § 542. Tattoos have been added to the items enumerated in the federal rule. The drafters felt that tattoos often reflect personal or family history and are apt to be as trustworthy as the other items listed in the rule.

     Subsection (a)(14). The hearsay exception for records of documents affecting an interest in property has previously been recognized in Washington. Copies of all deeds which must be filed with the county auditor are admissible. RCW 5.44.070. Copies of city or town plats are admissible. RCW 58.10.020. "Whenever any deed, conveyance, bond, mortgage or other writing, shall have been recorded... in pursuance of law, copies of record of such deed, [etc.] ...shall be received in evidence to all intents and purposes as the originals themselves." RCW 5.44.060. The rule does not conflict with the statutes. It supplements the statutes but does not supersede them.

     Subsection (a)(15). There is little prior authority on the admissibility of evidence of statements in documents affecting an interest in property, but what little there is supports an exception to the hearsay rule in accord with the rule. In Adams v. Mignon, 197 Wash. 293, 303, 84 P.2d 1016 (1938), the court held that the trial court did not err when it admitted an abstract of title into evidence: "The abstract, while not conclusive as to facts shown by the record, was admissible for what it was worth."

     Subsection (a)(16). The rule reduces the time limit from 30 to 20 years. Compare Spokane v. Catholic Bishop, 33 Wn.2d 496, 206 P.2d 277 (1949). Authentication is accomplished pursuant to rule 901 (b)(8).

     Subsection (a)(17). This subsection is substantially in accord with previous Washington law. See Nordstrom v. White Metal Rolling & Stamping Corp., 75 Wn.2d 629, 453 P.2d 619 (1969); Meyer Bros. Drug Co. v. Callison, 120 Wash. 378, 207 P. 683 (1922).

     Subsection (a)(18). This subsection makes statements contained in treatises, periodicals, and pamphlets admissible as substantive evidence, but only when the expert is on the stand and available to explain and assist in the application of the information. Prior cases holding that treatises are not admissible to prove the truth of the statements contained therein are no longer controlling. Cf. Dabroe v. Rhodes Co., 64 Wn.2d 431, 392 P.2d 317 (1964). The traditional use of treatises on cross examination is authorized by rules 611, 703, and 705.

     Subsection (a)(19). Previous Washington law has authorized admission of evidence of reputation within the family or among close associates on matters of family history. Meisenholder § 542. Subsection (a)(19) clarifies the law by stating more specifically the scope of this hearsay exception. The rule does not require the declarant to be unavailable, nor does it require that the statements must be made prior to litigation with no motive to deceive. Cf. Carfa v. Albright, 39 Wn.2d 697, 237 P.2d 795, 31 A.L.R.2d 983 (1951); Armstrong v. Modern Woodmen of Am., 105 Wash. 356, 178 P. 1 (1919).

     Subsection (a)(20). This subsection is substantially in accord with previous Washington law, except that the rule does not require the declarant to be unavailable before the hearsay exception applies. See Kay Corp. v. Anderson, 72 Wn.2d 879, 436 P.2d 459 (1967); Alverson v. Hooper, 108 Wash. 510, 185 P. 808 (1919).

     Subsection (a)(21). Under previous law, the scope of this exception could not be stated definitively. Meisenholder § 544. The rule clarifies the law by establishing reputation as a general exception to the hearsay rule. The methods of proving character are defined by rule 405.

     Subsection (a)(22). No similar exception to the hearsay rule is defined by previous Washington law. Meisenholder § 545. Admissibility is limited by the restrictions stated in the rule. The rule does not deal with the substantive effect of a judgment as res judicata, nor does it govern evidence of a conviction for impeachment. The latter is governed by rule 609. Even though the rule permits certain convictions to be used as substantive evidence in later litigation, the rule does not preclude the defendant from offering an explanation of the conviction based on newly acquired evidence. 4 J. Weinstein, Evidence ¶ 802(22)[01] (1975).

     Subsection (a)(23). There do not appear to be any previous Washington statutes or cases directly in point. The leading case is Patterson v. Gaines, 47 U.S. (6 How.) 550, 12 L.Ed. 553 (1848).

     Section (b). Federal Rule 803(24) is deleted. The drafters decided not to adopt any catchall provision. Despite purported safeguards, there is a serious risk that trial judges would differ greatly in applying the elastic standard of equivalent trustworthiness. The result would be a lack of uniformity which would make preparation for trial difficult. Nor would it be likely that an appellate court could effectively apply corrective measures. There would be doubt whether an affirmance of an admission of evidence under the catchall provision amounted to the creation of a new exception with the force of precedent or merely a refusal to rule that the trial court had abused its discretion.

     Section (a). Previous Washington law has defined "unavailability" differently in various contexts. See State v. Ortego, 22 Wn.2d 552, 157 P.2d 320, 159 A.L.R. 1232 (1945); State v. Solomon, 5 Wn.App. 412, 487 P.2d 643 (1971); Allen v. Dillard, 15 Wn.2d 35, 129 P.2d 813 (1942). Rule 804 clarifies the law by establishing a general definition applicable to all cases.

     The admissibility of hearsay against a defendant in a criminal case is also subject to overriding constitutional considerations. In Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), for example, the Supreme Court held that the confrontation clause of the Sixth Amendment requires the government to make stringent efforts to procure the attendance of a prosecution witness before the witness can be considered "unavailable". A lesser standard prevails in civil cases and in criminal cases where the statement is being offered on behalf of the accused. These and other constitutional restrictions on rules 801 and 804 are discussed in 4 J. Weinstein, Evidence ¶ 804(a)[01] (1975).

     Read literally, subsection (a)(3) seems to require only that the declarant assert a lack of memory to be considered unavailable. The rule does not appear to require that the court believe that the declarant is telling the truth. The Report of the House Committee on the Judiciary, however, indicates that "the Committee intends no change in the existing federal law under which the court may choose to disbelieve the declarant's testimony as to a lack of memory." Federal Rules of Evidence for the United States Courts and Magistrates 140 (West 1975). Accord, 4 J. Weinstein, Evidence ¶ 804(a)[01] (1975).

     Since the witness must testify to the lack of memory and is, therefore, subject to cross examination about his claim, the concern of some courts that the witness may make a perjured allegation of forgetfulness to avoid having to be cross-examined about his testimony is considerably lessened. Cross examination about the making of the statement and his present recollection gives the trial judge an opportunity for assessing the witness' credibility. 4 J. Weinstein, Evidence ¶ 804(a)[01].

     Subsection (b)(1). This portion of the rule is substantially in accord with previous Washington law in civil cases. 5 R. Meisenholder, Wash. Prac. §§ 401-408 (1965 & Supp.). See also CR 43 (h) and (j). In criminal cases, previous Washington law has imposed greater restrictions on the use of former testimony. The use of testimony at a former trial has been limited to proceedings on the same charge. State v. Lunsford, 163 Wash. 199, 300 P. 529 (1931). Rule 804 is less restrictive but is, of course, subject to constitutional limitations. For example, it has been held that under the state constitution, the defendant in criminal cases against whom the former testimony is introduced must have been present at the former trial and must have had the opportunity to confront and cross-examine witnesses. State v. Ortego, 22 Wn.2d 552, 157 P.2d 320, 159 A.L.R. 1232 (1945).

     Subsection (b)(2). Previous Washington law has recognized a limited exception for dying declarations. It has applied only in criminal cases involving prosecution for homicide. Hobbs v. Great N. Ry., 80 Wash. 678, 142 P. 20 (1914). Death must have actually resulted from the injuries creating the belief in impending death. State v. Lewis, 80 Wash. 532, 141 P. 1025 (1914). Declarations containing conclusions or opinion have been inadmissible to that extent. State v. Swartz, 108 Wash. 21, 182 P. 953 (1919). Rule 804 broadens the scope of this exception. The rule substitutes the word "trial" for "prosecution" to avoid the unwarranted implication that the defendant might not be allowed to introduce a dying declaration.

     Subsection (b)(3). Under previous Washington law, this exception has applied only to declarations against the declarant's pecuniary or proprietary interest. Allen v. Dillard, 15 Wn.2d 35, 129 P.2d 813 (1942). There has been no apparent authority concerning statements of matters which could furnish the basis for tort liability or invalidate a claim, nor has there been authority concerning statements furnishing the basis for criminal liability. Meisenholder § 441. Rule 804 expands and clarifies the scope of this exception.

     Subsection (b)(4). Previous Washington law has recognized an exception for statements of personal or family history substantially in accord with rule 804, although the rule is much more detailed. The rule does not require the statement to have been made prior to the litigation and with no motive to deceive, a restriction apparently imposed by previous law. Meisenholder § 542.

     While the Washington statute is limited to statements describing "any act of sexual contact performed with or on the child by another, not otherwise admissible by statute or court rule," the Uniform Rule covers statements that describe "an act of sexual conduct or physical violence...". The drafters of ER 807 elected to reserve the rule and refer to the statute, rather than supersede it by adopting the Uniform Rule.

     Section (a). The rule treats preliminary questions of authentication and identification as matters of conditional relevance under rule 104(b). The court should admit the evidence if sufficient proof is introduced to permit a reasonable juror to find in favor of its authenticity or identification. 5 J. Weinstein, Evidence ¶ 901(a)[01] (1975). There is no apparent conflict between section (a) and previous Washington law. See 5 R. Meisenholder, Wash.Prac. §§ 38, 61 (1965 & Supp.). The rule is concerned only with proving authenticity. It does not govern admissibility. An authentic document may still be inadmissible under another rule.

     Example 1. This portion of the rule is consistent with previous Washington law. Allen v. Porter, 19 Wn.2d 503, 143 P.2d 328 (1943); State v. Cottrell, 56 Wash. 543, 106 P. 179 (1910). The rule does not require that the witness' testimony, alone, be sufficient for authentication. This is true for the other examples as well. Any combination of methods illustrated by rule 901 (b)(1) through (10) will suffice so long as rule 901(a) is satisfied. 5 J. Weinstein, Evidence ¶ 901 (b)(1)[01] (1975).

     Example 2. This portion of the rule is consistent with previous Washington law. State v. Simmons, 52 Wash. 132, 100 P. 269 (1909); Meisenholder § 61.

     Example 3. Federal Rule 901 (b)(3) permits the comparison to be made by the "trier of fact." The Washington rule substitutes the word "court" to avoid any suggestion that the jury initially determines whether the requirement of authentication has been satisfied. It is the judge who determines whether the proponent of the evidence has made a prima facie demonstration that it is genuine. Once this demonstration is made, the document is sufficiently authenticated for admissibility. Meisenholder § 61. After the document is admitted, however, evidence challenging its authenticity is pertinent and authenticity ultimately becomes a factual issue for the jury. See, e.g., State v. Bogart, 21 Wn.2d 765, 153 P.2d 507 (1944); Mitchell v. Mitchell, 24 Wn.2d 701, 166 P.2d 938 (1946); State v. Haislip, 77 Wn.2d 838, 467 P.2d 284 (1970).

     In a jury case, the initial comparison by the judge should probably be made in the absence of the jury. This procedure is authorized by rule 104(c).

     Example 4. This portion of the rule reflects, for example, the reply letter technique. A letter is sufficiently authenticated by showing that a letter was sent to a person and that the letter to be introduced is in reply to the first letter. Conner v. Zanuzoski, 36 Wn.2d 458, 218 P.2d 879 (1950). Other examples of circumstantial proof are cited in Meisenholder § 63.

     Example 5. This portion of the rule is substantially in accord with previous Washington law. State v. Williams, 49 Wn.2d 354, 301 P.2d 769 (1956). Proper identification and authentication do not assure admissibility. RCW 9.73.050, for example, makes sound recordings inadmissible under certain circumstances.

     Example 6. This portion of the rule is substantially in accord with previous law in Washington and elsewhere. Meisenholder § 66. One Washington decision appears to hold that self-identification by the answering party is insufficient for authentication. State v. Manos, 149 Wash. 60, 270 P. 132 (1928). Self-identification is sufficient under rule 901 so long as the call was made to the telephone number assigned to that particular person.

     Example 7. Federal Rule 901 (b)(7) is deleted, not because of any fundamental disagreement with its content, but because the subject matter is covered by existing statutes and rules which have become familiar to the bench and bar. CR 44 does not supersede the cited statute. Either procedure may be used. State v. Hodge, 11 Wn.App. 323, 523 P.2d 953 (1974). A common law procedure for authenticating original government documents is described in State v. Bolen, 142 Wash. 653, 254 P. 445 (1927).

     Example 8. The rule reduces the time limit from 30 to 20 years. Cf. Spokane v. Catholic Bishop, 33 Wn.2d 496, 206 P.2d 277 (1949).

     Example 9. This portion of the rule would apply, for example, to the authentication of photographs and X-rays. Meisenholder § 32. Authorities discussing computer printouts are cited in the Advisory Committee Note to Federal Rule 901. See also Seattle v. Heath, 10 Wn.App. 949, 520 P.2d 1392 (1974).

     By the terms of rules 901 (b)(10) and 902(j), statutory methods of authentication are preserved as alternative procedures. See, e.g., RCW 5.44. CR 44, Proof of Official Record, relates to some of the matters governed by rule 902. CR 44 is not superseded and remains as an alternative procedure. R. Meisenholder, 3 West's Federal Forms § 3926 (1976 Supp.).

     Section (a). This section simplifies the procedure for determining the authenticity of a domestic public document bearing a seal. Forgeries are unlikely, and detection is relatively easy and certain.

     Section (b). A document purporting to bear an official signature is more easily forged in the absence of a seal. The rule thus requires the additional safeguard of authentication by an officer who does have a seal.

     Section (c). This section is substantially the same as CR 44 (a)(2).

     Section (d). This section reflects the familiar practice of recognizing certified copies of public records. The rule defers to statutes such as RCW 5.44 which address the procedure for certification in more detail.

     Section (e). By statute, certain official publications are considered authentic. See, e.g., RCW 5.44.070, .080. The rule accepts all official publications as authentic. The rule does not confer authenticity upon statutes, rules, and court decisions reprinted by nongovernmental publishers. 5 J. Weinstein, Evidence ¶ 902(5)[01] (1975).

     Section (f). Newspapers and periodicals are considered authentic because the risk of forgery is minimal. The rule could not be determined with certainty under previous Washington law. 5 R. Meisenholder, Wash.Prac. § 65 (1965 & Supp.).

     Section (g). The laws protecting trade inscriptions minimize the risk of forgery. The rule generalizes upon a policy which has been previously implemented on a piece-meal basis. See, e.g., RCW 16.57.100 (brands as evidence of title to livestock); Kneeland Inv. Co. v. Berendes, 81 Wash. 372, 142 P. 869 (1914) (seal of corporation on stock certificate held sufficient authentication).

     Section (h). The rule is consistent with RCW 64.08.050. The persons authorized to take acknowledgments are defined by RCW 64.08.010.

     Section (i). The rule incorporates the provisions of the Uniform Commercial Code relating to authenticity. See RCW 62A.1-202 (certain documents deemed to be prima facie evidence of their own authenticity and genuineness); RCW 62A.3-307 (signatures presumed to be genuine); RCW 62A.3-510 (certain documents are admissible in evidence and create presumption of dishonor).

     Section (j). Federal Rule 902(10) has been modified to refer to state law as well as to federal statutes. Statutory procedures such as those defined in RCW 5.44 are preserved. As to self-authenticating wills, see RCW 11.20.020. Some statutes provide that a document is presumptively authentic, but only after it has been certified or otherwise verified in a specified manner. See, e.g., RCW 77.04.090 (rules and regulations of state game commission). Section (j) does not eliminate these restrictions. Certified copies are governed by section (d). Other documents not falling within sections (a) through (i) but made presumptively authentic by statute are subject to any statutory conditions or restrictions on authenticity.

     The amended rule expanded the certification provision to permit certification that complies with "the applicable law of a state or territory of the United States." While in most instances the "applicable law" will be that of the state from which the record originated, including of course the state of Washington, there may be exceptional circumstances where this is not the case. The amendment defers to other choice of law principles in these situations.

     Proof of a lost or destroyed will is governed by RCW 11.20.070. The statute defines "lost" and "destroyed" for purposes of probate and establishes the procedure to be followed. The statute is not in conflict with the rule and is not superseded.

     Section (d), relating to collateral matters, reflects existing law in Washington and elsewhere. Meisenholder § 93.

     The definition of "collateral" is elusive in the absence of specific facts. "In the final analysis the question of whether a document's terms are collateral depends upon the importance of the terms to the issues in the case. Insistence upon proof by introduction of an original document to prove its terms is a waste of time when the terms are relatively unimportant and not the subject of an important factual issue." Meisenholder § 93. See also E. Cleary, McCormick on Evidence § 236 (2d ed. 1972).

     Various statutes authorize the use of certified copies. RCW 5.44.040 (certified copies of public records); RCW 5.44.060 (certified copies of recorded instruments); RCW 5.44.070 (certified copies of transcripts of county commissioners' proceedings); RCW 5.44.090 (certified copies of instruments restoring civil rights). The rule authorizes proof by certified copy of any public record.

     The rule changes Washington law in the sense that no previous authority has been found which equates compared copies with certified copies.

     Section (a). The rules of evidence apply generally to civil and criminal proceedings, including mental commitment proceedings, reference hearings, and juvenile court factfinding and adjudicatory hearings. See RCW 71.05.250, RCW 71.05.310, MPR 3.4, RAP 16.12, JuCR 3.7, and JuCR 7.11. Juvenile court hearings on whether to decline jurisdiction are not excused from the operation of the rules. These hearings have a substantial impact upon the case and deserve the formality of evidentiary rules. Cf. In re Harbert, 85 Wn.2d 719, 538 P.2d 1212 (1975).

     The words "judge" and "court" are used interchangeably throughout the rules and refer to a judge, judge pro tempore, commissioner, or any other person authorized to hold a hearing to which the rules apply.

     Section (b). The law concerning privileged communications applies to all proceedings, including those listed in section (c).

     Subsection (c)(1). This portion of the rule is a restatement of a similar provision in rule 104. The rules need not be applied, for example, at a hearing on a motion to suppress evidence. United States v. Matlock, 415 U.S. 164, 39 L.Ed.2d 242, 94 S.Ct. 988 (1974); 32B Am.Jur.2d Federal Rules of Evidence (1982). The rule, like all of the other rules, does not attempt to specify the situations in which due process would require a full evidentiary hearing. That determination is made by reference to constitutional law.

     In the absence of a constitutional requirement, the rule still does not prevent the court from requiring a certain measure of reliability with respect to the admission of evidence in the proceedings specified in section (c). The court should have the discretion to require an appropriate level of formality.

     Subsection (c)(2). The statutes contain special evidentiary provisions for grand juries and inquiry judges. See RCW 10.27.120, .130, .140, .170. Although there are no Washington cases directly in point, the majority view is that the validity of a grand jury indictment may not be challenged on the basis of insufficient or incompetent evidence unless none of the witnesses was competent. Annot., 37 A.L.R.3d 612 (1971); Annot., 39 A.L.R.3d 1064 (1971).

     Subsection (c)(3). Proceedings with respect to extradition, rendition, and detainers are essentially administrative matters, and the rules of evidence have traditionally not applied. Gibson v. Beall, 249 F.2d 489 (D.C.Cir.1957); United States v. Flood, 374 F.2d 554 (2d Cir.1967).

     The view that the rules of evidence do not apply to preliminary determinations in criminal cases is consistent with the Superior Court Criminal Rules. See, e.g., CrR 3.2(k), relating to hearings on pretrial release. The rule refers to "determinations" rather than to "examinations," the federal rule's terminology. This change was made to clarify the intent to relax the rules of evidence with respect to all preliminary matters, not just at hearings in which the accused gives testimony.

     The normal rules of evidence do not apply to hearings with respect to sentencing or probation. State v. Short, 12 Wn.App. 125, 528 P.2d 480 (1974); State v. Shannon, 60 Wn.2d 883, 376 P.2d 646 (1962); State v. Kuhn, 81 Wn.2d 648, 503 P.2d 1061 (1972). As to sentencing proceedings in cases involving the death penalty, see also RCW 10.95. As to search warrants, see CrR 2.3(c). The rules do not apply to hearings with respect to pretrial release. CrR 3.2(k).

     The provision regarding contempt applies to contempt committed in the presence of the court as defined by RCW 7.20.030.

     The rule clarifies the law with respect to habeas corpus hearings. A statute, RCW 7.36.120, directs the court to hear and determine the matter "in a summary way." The Supreme Court has held that the trial court may thus determine factual matters by reference to affidavits. Little v. Rhay, 68 Wn.2d 353, 413 P.2d 15, cert. denied, 385 U.S. 96 (1966). Later, a division of the Court of Appeals held that such affidavits should be considered only to assist in formulating the issues of fact and not in themselves to determine disputed questions of material fact. Little v. Rhay, 8 Wn.App. 725, 509 P.2d 92 (1973). A dissenting opinion argued that the majority opinion nullified the statute and disregarded earlier decisions of the Supreme Court. Rule 1101 adopts the approach taken by the earlier Supreme Court decisions. This is contrary to Federal Rule 1101, which makes the rules of evidence applicable to federal habeas corpus proceedings, but the underlying federal statute requires testimony to be taken. Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830 (1941).

     The rules do not apply to small claims courts, supplemental proceedings, or to coroners' inquests, primarily because the purposes of these proceedings would be frustrated by strictly imposing rules of evidence. As a practical matter, the rules have not been applied to these proceedings in the past.

     Factfinding and adjudicatory hearings in juvenile court are conducted in accordance with the rules of evidence. JuCR 3.7 and JuCR 7.11. Once the facts have been determined, however, the appropriate form of disposition is determined with less formality. The situation is analogous to the distinction between a criminal trial and sentencing. Rule 1101 thus authorizes a relaxation of the rules of evidence for disposition hearings in juvenile court. A corresponding relaxation of the rules is authorized for dispositional determinations under the Uniform Alcoholism and Intoxication Treatment Act, RCW 70.96A, and the Civil Commitment Act, RCW 71.05.