FINAL BILL REPORT

                 SHB 1090

FULL VETO

Brief Description:  Protecting communications in law enforcement officers peer support groups.

By House Committee on Judiciary (originally sponsored by Representative Scott.)

House Committee on Judiciary

Senate Committee on Law & Justice

Background:  The judiciary has inherent power to compel witnesses to appear and testify.  The presumption is that the duty of a witness is to testify about facts within the witness' knowledge.  However, certain narrow exceptions to this rule have been developed through the common law and adopted in statute.  Those exceptions are "testimonial privileges" which, because of countervailing policy considerations, prohibit disclosure of confidential communications made between persons occupying a special confidential relationship to one another.  Because any grant of testimonial privilege is in direct conflict with the essential judicial power to compel the production of evidence, privileges are generally narrowly construed.  Generally, if a third person is present when the communication is made, the privilege is lost.

Under common law, four criteria had to be met to establish a privilege:  (1) the communication must originate in the confidence that it will not be disclosed; (2) the element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties; (3) the relationship must be one which in the opinion of the community ought to be fostered; and (4) the injury that would inure to the relationship by the disclosure of the communication must be greater than the benefit gained for the correct disposal of litigation.

Five privileges exist in statute.  Communications between the following persons are privileged:  (1) husband and wife; (2) attorney and client; (3) clergy and confessor; (4) physician and patient under certain circumstances; and (5) public officers and witnesses if the statement was made in confidence and if the public interest would suffer by disclosure.

Some law enforcement agencies have "peer support group" counselors who counsel officers who have been involved in a traumatic incidents while on duty, such as when an officer shoots and kills a person.  Law enforcement would like a new testimonial privilege created to protect from disclosure statements the officer makes to the peer support group counselor.

Summary:  A new testimonial privilege is created.

A law enforcement officer who is a designated peer support group counselor shall not, without consent of the other officer making the communication, be compelled to testify in any judicial proceeding about any communication the other law enforcement officer made to the counselor while receiving counseling from that counselor.  The privilege only applies when the communication was made to the counselor when acting in his or her capacity as a peer support group counselor.  The privilege does not apply if the counselor was a witness or a party to any incident which prompted the delivery of peer support group counseling services to the law enforcement officer.  The role of the designated peer support group counselor is to provide emotional and moral support and counseling to an officer who needs peer support services as a result of an incident in which the officer was involved while acting in his or her official capacity.

Votes on Final Passage:

House  96 0

Senate 47 0

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