equivalent rule in Washington

2020Johnson v. Dep’t of Transp., 177 Wn.

2016Johnson v. Dep’t of Transp., 177 Wn.

2016Nine of the remaining cases admit or exclude prior statements under FRE 801(d)(1)(A) or an equivalent rule without deciding whether investigations can ever constitute “other proceeding[s].” Simmonds v. People, 59 V.I. 480, 489-503 (2013) (trial court erred by admitting police interview statement under local rather than federal evidentiary rule but error was harmless (citing Castro-Ayon for discussion of FRE 801(d)(1)(A)’s legislative history)); State v. Maestas, 92 N.M. 135, 144-45 , 584 P.2d 182 (1978) (citing Castro-Ayon for the principle that “inconsistent statements spoken by the victim un

2016Nine of the remaining cases admit or exclude prior statements under FRE 801(d)(1)(A) or an equivalent rule without deciding whether investigations can ever constitute “other proceeding[s].” Simmonds v. People, 59 V.I. 480, 489-503 (2013) (trial court erred by admitting police interview statement under local rather than federal evidentiary rule but error was harmless (citing Castro-Ayon for discussion of FRE 801(d)(1)(A)’s legislative history)); State v. Maestas, 92 N.M. 135, 144-45 , 584 P.2d 182 (1978) (citing Castro-Ayon for the principle that “inconsistent statements spoken by the victim un

2016Bank of Puget Sound, 850 F.2d 1345, 1356 (9th Cir. 1988) (citing Castro-Ayon for the principle that “other proceeding” in FRE 801(d)(1)(A) is defined broadly, but approving admission of prior inconsistent statement given in a deposition, consistent with the rule’s plain language); United States v. Mosley, 555 F.2d 191, 193 (8th Cir. 1977) (citing Castro-Ayon for principle that grand jury proceedings are “other proceeding[s]” within the scope of FRE 801(d)(1)(A); holding that even if trial court erred by admitting prior inconsistent statement given to investigating prosecutor, error was harmles

2016Of these 25, only 16 actually address that question. 5 Three of these are unhelpful to 5 Nine of the remaining cases admit or exclude prior statements under FRE 801(d)(1)(A) or an equivalent rule without deciding whether investigations can ever constitute "other proceeding[s]." Simmonds v. People, 59 V.I. 480, 489-503 (2013) (trial court erred by admitting police interview statement under local rather than federal evidentiary rule but error was harmless (citing Castro-Ayon for discussion of FRE 801(d)(l)(A)'s legislative history)); State v. Maestas, 92 N.M. 135, 144-45 , 584 P.2d 182 (1978) (c

2025App. 571, 580 , 271 P.3d 899 (2012) (“[I]n the absence of state authority, Washington courts look to federal interpretation of the equivalent rule.”); Critchlow v. Dex Media W., Inc., 192 Wn.

2025App. 710, 718 , 368 P.3d 246 (2016) (“Washington’s CR 68 is virtually identical to Federal Rule of Civil Procedure 68.”). -4- No. 86113-1-I 760, 762 (11th Cir. 1989).

2016A Westlaw search yields 25 controlling decisions 4 that cite Castro-Ayon for the principle that an investigation by 2 Livingston, 661 F.2d at 242-43 ; United States v. Bonnett, 877 F.2d 1450, 1462 (1Oth Cir. 1989); United States v. Dietrich, 854 F .2d 1056, 1061-62 (7th Cir. 1988); United States v. Day, 789 F.2d 1217, 1222-23 (6th Cir. 1986); see also Santos v. Murdock, 243 F.3d 681, 684 (2d Cir. 2001) (per curiam) (endorsing interpretation of ER 801(d)(1) adopted by the District of Columbia Circuit in Livingston, holding that meeting between attorney and witness, in which witness prepared an

2016App. 29, 46-49 , 60 P.3d 1234 (2003) (citing Castro-Ayon when summarizing Smith's holding; finding witness statement at issue inadmissible even under Smith because it was not given under oath or subject to penalty of perjury); State v. Johnson, 40 Wn.

2016App. 29, 46-49 , 60 P.3d 1234 (2003) (citing Castro-Ayon when summarizing Smith's holding; finding witness statement at issue inadmissible even under Smith because it was not given under oath or subject to penalty of perjury); State v. Johnson, 40 Wn.

2012Hodge, 65 Wn.

1999Washington Evidence Rules (ER), although substantially identical to the federal rules, does not state an equivalent rule, but reserves and cites applicable statutes on privilege, including the "clergyman or priest" privilege under RCW 5.60.060(3). [78] See Martin , 91 Wash.App. . at 634, 959 P.2d 152 ., [79] Clerk's Papers at 14. [80] Potter, 197 W.Va. at 746 , 478 S.E.2d 742 ; Dietz, 131 Wash.2d at 850 , 935 P.2d 611 ("The attorney-client privilege can ordinarily be waived only by the client, to whom the privilege belongs."); McUne v. Fuqua, 42 Wash.2d 65, 74 , 253 P.2d 632 (1953) ("The [phys

1999Washington Evidence Rules (ER), although substantially identical to the federal rules, does not state an equivalent rule, but reserves and cites applicable statutes on privilege, including the "clergyman or priest" privilege under RCW 5.60.060(3). [78] See Martin , 91 Wash.App. . at 634, 959 P.2d 152 ., [79] Clerk's Papers at 14. [80] Potter, 197 W.Va. at 746 , 478 S.E.2d 742 ; Dietz, 131 Wash.2d at 850 , 935 P.2d 611 ("The attorney-client privilege can ordinarily be waived only by the client, to whom the privilege belongs."); McUne v. Fuqua, 42 Wash.2d 65, 74 , 253 P.2d 632 (1953) ("The [phys

1999Washington Evidence Rules (ER), although substantially identical to the federal rules, does not state an equivalent rule, but reserves and cites applicable statutes on privilege, including the "clergyman or priest" privilege under RCW 5.60.060(3). [78] See Martin , 91 Wash.App. . at 634, 959 P.2d 152 ., [79] Clerk's Papers at 14. [80] Potter, 197 W.Va. at 746 , 478 S.E.2d 742 ; Dietz, 131 Wash.2d at 850 , 935 P.2d 611 ("The attorney-client privilege can ordinarily be waived only by the client, to whom the privilege belongs."); McUne v. Fuqua, 42 Wash.2d 65, 74 , 253 P.2d 632 (1953) ("The [phys

1999Washington Evidence Rules (ER), although substantially identical to the federal rules, does not state an equivalent rule, but reserves and cites applicable statutes on privilege, including the "clergyman or priest" privilege under RCW 5.60.060(3). [78] See Martin , 91 Wash.App. . at 634, 959 P.2d 152 ., [79] Clerk's Papers at 14. [80] Potter, 197 W.Va. at 746 , 478 S.E.2d 742 ; Dietz, 131 Wash.2d at 850 , 935 P.2d 611 ("The attorney-client privilege can ordinarily be waived only by the client, to whom the privilege belongs."); McUne v. Fuqua, 42 Wash.2d 65, 74 , 253 P.2d 632 (1953) ("The [phys

1999Washington Evidence Rules (ER), although substantially identical to the federal rules, does not state an equivalent rule, but reserves and cites applicable statutes on privilege, including the "clergyman or priest" privilege under RCW 5.60.060(3). [78] See Martin , 91 Wash.App. . at 634, 959 P.2d 152 ., [79] Clerk's Papers at 14. [80] Potter, 197 W.Va. at 746 , 478 S.E.2d 742 ; Dietz, 131 Wash.2d at 850 , 935 P.2d 611 ("The attorney-client privilege can ordinarily be waived only by the client, to whom the privilege belongs."); McUne v. Fuqua, 42 Wash.2d 65, 74 , 253 P.2d 632 (1953) ("The [phys

1999Washington Evidence Rules (ER), although substantially identical to the federal rules, does not state an equivalent rule, but reserves and cites applicable statutes on privilege, including the "clergyman or priest" privilege under RCW 5.60.060(3). [78] See Martin , 91 Wash.App. . at 634, 959 P.2d 152 ., [79] Clerk's Papers at 14. [80] Potter, 197 W.Va. at 746 , 478 S.E.2d 742 ; Dietz, 131 Wash.2d at 850 , 935 P.2d 611 ("The attorney-client privilege can ordinarily be waived only by the client, to whom the privilege belongs."); McUne v. Fuqua, 42 Wash.2d 65, 74 , 253 P.2d 632 (1953) ("The [phys

1999Washington Evidence Rules (ER), although substantially identical to the federal rules, does not state an equivalent rule, but reserves and cites applicable statutes on privilege, including the "clergyman or priest" privilege under RCW 5.60.060(3). [78] See Martin , 91 Wash.App. . at 634, 959 P.2d 152 ., [79] Clerk's Papers at 14. [80] Potter, 197 W.Va. at 746 , 478 S.E.2d 742 ; Dietz, 131 Wash.2d at 850 , 935 P.2d 611 ("The attorney-client privilege can ordinarily be waived only by the client, to whom the privilege belongs."); McUne v. Fuqua, 42 Wash.2d 65, 74 , 253 P.2d 632 (1953) ("The [phys

1999Washington Evidence Rules (ER), although substantially identical to the federal rules, does not state an equivalent rule, but reserves and cites applicable statutes on privilege, including the "clergyman or priest" privilege under RCW 5.60.060(3). [78] See Martin , 91 Wash.App. . at 634, 959 P.2d 152 ., [79] Clerk's Papers at 14. [80] Potter, 197 W.Va. at 746 , 478 S.E.2d 742 ; Dietz, 131 Wash.2d at 850 , 935 P.2d 611 ("The attorney-client privilege can ordinarily be waived only by the client, to whom the privilege belongs."); McUne v. Fuqua, 42 Wash.2d 65, 74 , 253 P.2d 632 (1953) ("The [phys

1993See People v. Jeff, supra; State v. Schimpf, supra; State v. York, supra; State v. Rimmasch, supra; Commonwealth v. Dunkle, supra. 9 In sum, the use of generalized profile testimony, whether from clinical experience or reliance on studies in the field, to prove the existence of abuse is insufficient under Frye . 10 However, such testimony may be used to rebut an inference that certain behaviors of the victim, such as sexual acting out, are inconsistent with ábuse. 11 In the case at hand, Mitchell's testimony included generalized assertions about common behaviors of sexually abused children.

1993See People v. Jeff, supra; State v. Schimpf, supra; State v. York, supra; State v. Rimmasch, supra; Commonwealth v. Dunkle, supra. 9 In sum, the use of generalized profile testimony, whether from clinical experience or reliance on studies in the field, to prove the existence of abuse is insufficient under Frye . 10 However, such testimony may be used to rebut an inference that certain behaviors of the victim, such as sexual acting out, are inconsistent with ábuse. 11 In the case at hand, Mitchell's testimony included generalized assertions about common behaviors of sexually abused children.

1993See People v. Jeff, supra; State v. Schimpf, supra; State v. York, supra; State v. Rimmasch, supra; Commonwealth v. Dunkle, supra. 9 In sum, the use of generalized profile testimony, whether from clinical experience or reliance on studies in the field, to prove the existence of abuse is insufficient under Frye . 10 However, such testimony may be used to rebut an inference that certain behaviors of the victim, such as sexual acting out, are inconsistent with ábuse. 11 In the case at hand, Mitchell's testimony included generalized assertions about common behaviors of sexually abused children.

1983State v. Hudlow, 30 Wn.

1983State v. Hudlow, 30 Wn.