491.060. Persons incompetent to testify — exceptions, children in certain cases. — The following persons shall be incompetent to testify:
(1) A person who is mentally incapacitated at the time of his or her production for examination;
(2) A child under ten years of age, who appears incapable of receiving just impressions of the facts respecting which the child is examined, or of relating them truly; provided, however, that except as provided in subdivision (1) of this section, a child under the age of ten who is alleged to be a victim of an offense pursuant to chapter 565, 566 or 568 shall be considered a competent witness and shall be allowed to testify without qualification in any judicial proceeding involving such alleged offense. The trier of fact shall be permitted to determine the weight and credibility to be given to the testimony;
(3) An attorney, concerning any communication made to the attorney by such attorney's client in that relation, or such attorney's advice thereon, without the consent of such client;
(4) Any person practicing as a minister of the gospel, priest, rabbi or other person serving in a similar capacity for any organized religion, concerning a communication made to him or her in his or her professional capacity as a spiritual advisor, confessor, counselor or comforter;
(5) A physician licensed pursuant to chapter 334, a chiropractor licensed pursuant to chapter 331, a licensed psychologist or a dentist licensed pursuant to chapter 332, concerning any information which he or she may have acquired from any patient while attending the patient in a professional character, and which information was necessary to enable him or her to prescribe and provide treatment for such patient as a physician, chiropractor, psychologist or dentist.
Notes of Decisions
Cited in
255
cases (
11 in the last 5 years), 1951–2025 · leading case:
Brandt v. Pelican, 856 S.W.2d 658 (Mo. 1993).
Brandt v. Pelican, 856 S.W.2d 658 (Mo. 1993).
· cites it 38× “The plain and simple answer to this issue is found in the express language of section 491.060(5), RSMo Supp.1992, which reads as follows: The following persons shall be incompetent to testify: (5) A physician licensed under chapter 334, RSMo, a licensed psychologist or a dentist…”
Brandt v. Med. Def. Assocs., 856 S.W.2d 667 (Mo. 1993).
· cites it 22× “The testimonial privilege as set forth in section 491.060(5) relates to the disclosure of confidential medical information by testimony in court or by formal discovery.”
State v. Williams, 729 S.W.2d 197 (Mo. 1987).
· cites it 26× “Appellant urges that section 491.060, RSMo 1986, which allowed the child to testify without any further qualification, denied him equal protection under the law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Mo.”
State v. Skillicorn, 944 S.W.2d 877 (Mo. 1997).
· cites it 16× “Placing Skillicorn's mental condition in issue waived the privilege accorded by Section 491.060, RSMo. That section provides: The following persons shall be incompetent to testify: * * * * * * (5) A physician licensed under chapter 334, RSMo, a licensed psychologist or a dentist…”
State v. Silvey, 894 S.W.2d 662 (Mo. 1995).
· cites it 11× “Silvey next argues that the trial court erred in overruling his motion to find section 491.060, RSMo 1994, unconstitutional.”
State v. Mateo, 335 S.W.3d 529 (Mo. Ct. App. 2011).
· cites it 44× “The convicted appellant argued that section 491.060, RSMo 1986, which allowed the child victim to testify without any further qualification, was constitutionally flawed for numerous reasons, none of which were accepted by the Missouri Supreme Court.”
State v. Carter, 641 S.W.2d 54 (Mo. 1982).
· cites it 14× “Wilsonthat under the work product doctrine material prepared by agents for the defense attorney as well as material prepared by the attorney himself is protected; (3) deprived defendant of his Sixth Amendment right to the effective assistance of counsel, and (4) violated the…”
State Ex Rel. O'Blennis v. Adolf, 691 S.W.2d 498 (Mo. Ct. App. 1985).
· cites it 10× “Asserting the doctor-patient privilege, under § 491.060(5), RSMo Cum.Supp.1983, the father sought the writ to prohibit the disclosure.”
State Ex Rel. Dean v. Cunningham, 182 S.W.3d 561 (Mo. 2006).
· cites it 8× “060(5) provides that various health care providers, including physicians and psychologists, are incompetent to testify concerning any information acquired while attending a patient in a professional capacity. 3. Cases under Missouri’s discovery provisions hold that a patient who…”
State v. Brown, 902 S.W.2d 278 (Mo. 1995).
· cites it 6× “§ 491.060(2), RSMo 1994. State v. Johnson, 714 S.”
State v. Feltrop, 803 S.W.2d 1 (Mo. 1991).
· cites it 6× “Section 491.060, RSMo 1986, creates a rebuttable presumption that a child under ten years of age is incompetent to testify except as a victim of certain offenses.”
Whitnell v. State, 129 S.W.3d 409 (Mo. Ct. App. 2004).
· cites it 8× “That experts in psychiatrist’s field reasonably rely on such data, and psychiatrist’s own evaluation and reliance on it is sufficient to rebut any unreliability implied from section 491.060 concerning statements from Whitnell’s daughter made when she was less than ten years old.”
— Mo. Rev. Stat. § 491.060(1) — 9 cases
— Mo. Rev. Stat. § 491.060(2) — 40 cases
State v. Mateo, 335 S.W.3d 529 (Mo. Ct. App. 2011).
“The convicted appellant argued that section 491.060, RSMo 1986, which allowed the child victim to testify without any further qualification, was constitutionally flawed for numerous reasons, none of which were accepted by the Missouri Supreme Court.”
State v. Williams, 729 S.W.2d 197 (Mo. 1987).
“Appellant urges that section 491.060, RSMo 1986, which allowed the child to testify without any further qualification, denied him equal protection under the law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Mo.”
State v. Brown, 902 S.W.2d 278 (Mo. 1995).
“§ 491.060(2), RSMo 1994. State v. Johnson, 714 S.”
Whitnell v. State, 129 S.W.3d 409 (Mo. Ct. App. 2004).
“That experts in psychiatrist’s field reasonably rely on such data, and psychiatrist’s own evaluation and reliance on it is sufficient to rebut any unreliability implied from section 491.060 concerning statements from Whitnell’s daughter made when she was less than ten years old.”
— Mo. Rev. Stat. § 491.060(3) — 22 cases
State v. Carter, 641 S.W.2d 54 (Mo. 1982).
“Wilsonthat under the work product doctrine material prepared by agents for the defense attorney as well as material prepared by the attorney himself is protected; (3) deprived defendant of his Sixth Amendment right to the effective assistance of counsel, and (4) violated the…”
— Mo. Rev. Stat. § 491.060(4) — 6 cases
— Mo. Rev. Stat. § 491.060(5) — 91 cases
Brandt v. Pelican, 856 S.W.2d 658 (Mo. 1993).
“The plain and simple answer to this issue is found in the express language of section 491.060(5), RSMo Supp.1992, which reads as follows: The following persons shall be incompetent to testify: (5) A physician licensed under chapter 334, RSMo, a licensed psychologist or a dentist…”
Brandt v. Med. Def. Assocs., 856 S.W.2d 667 (Mo. 1993).
“The testimonial privilege as set forth in section 491.060(5) relates to the disclosure of confidential medical information by testimony in court or by formal discovery.”
State Ex Rel. O'Blennis v. Adolf, 691 S.W.2d 498 (Mo. Ct. App. 1985).
“Asserting the doctor-patient privilege, under § 491.060(5), RSMo Cum.Supp.1983, the father sought the writ to prohibit the disclosure.”
State Ex Rel. Dean v. Cunningham, 182 S.W.3d 561 (Mo. 2006).
“060(5) provides that various health care providers, including physicians and psychologists, are incompetent to testify concerning any information acquired while attending a patient in a professional capacity. 3. Cases under Missouri’s discovery provisions hold that a patient who…”
State v. Skillicorn, 944 S.W.2d 877 (Mo. 1997).
“Placing Skillicorn's mental condition in issue waived the privilege accorded by Section 491.060, RSMo. That section provides: The following persons shall be incompetent to testify: * * * * * * (5) A physician licensed under chapter 334, RSMo, a licensed psychologist or a dentist…”
— Mo. Rev. Stat. § 491.060(6) — 1 case
— Mo. Rev. Stat. § 491.060(H) — 1 case
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