Proposed Rules Archives

• Proposed Changes to ER 1101 - Applicability of Rules (in Word Format)
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Purpose: The suggested amendment clarifies which juvenile hearings are exempt from the Rules of Evidence and removes specific statutory citations (one of which is incorrect).

The current language of ER 1101(c)(3) references RCW 13.34.130(4), which in prior years governed review hearings in dependency matters but now addresses other matters. This reference is out of date; RCW 13.34.138 is the current statute. In addition, courts adjudicate review hearings in At-Risk Youth (ARY) proceedings (RCW 13.32A.198) and permanency planning hearings in dependencies (RCW 13.34.145) without the Rules of Evidence, but these types of hearings are not specifically mentioned in ER 1101(c)(3).

The suggested amendment confirms that the above hearings, as well as those already listed in ER 1101(c)(3), are exempt from the Rules of Evidence. By using the terms “preliminary determinations in juvenile court,” “juvenile court hearings on declining jurisdiction,” and “disposition, review, and permanency planning hearings in juvenile court,” the suggested amendment confirms that the following juvenile hearings are exempt from the Rules of Evidence:

1. Preliminary determinations;

2. Hearings on declining jurisdiction (RCW 13.40.110);

3. Disposition hearings in offender (RCW 13.40.150), dependency (RCW 13.34.130), ARY (13.32A.197), and Child in Need of Services (CHINS) (RCW 13.32A.179) proceedings;

4. Review hearings in dependency (RCW 13.34.138), ARY (RCW 13.32A.198), and CHINS (RCW 13.32A.190) proceedings; and

5. Permanency planning hearings in dependency (RCW 13.34.145) proceedings.

The suggested amendment eliminates specific statutory references to avoid the need to amend ER 1101(c)(3) again if the juvenile statutes are changed. Because the terms used are specific terms of art that are well understood by practitioners in juvenile law, there is no need to cite the specific statutes. The drafters of the suggested amendment do not intend for juvenile hearings other than those listed above (under whichever RCW sections govern them in future) to be exempt from the Rules of Evidence.

The drafters of the suggested amendment intend no change to the application of the Rules of Evidence when contempt is adjudicated in these juvenile hearings. Regardless of whether the type of hearing in general is exempt from the Rules of Evidence, under current law the Rules of Evidence must be applied when non-direct contempt is adjudicated. See, e.g., In re M.B., 101 Wn. App. 425, 469 & n.114, 3 P.3d 780 (2000) (Rules of Evidence apply to contempt issues in ARY, CHINS, and dependency proceedings); ER 1101(c)(3) (stating that the Rules of Evidence do not apply to contempt proceedings in which the court may act summarily, meaning direct contempt, thus indicating that the Rules of Evidence do apply when the basis for the contempt is an action that occurred outside of the courtroom). An attempt to reflect this current law on contempt proceedings more expressly and broadly in the Rules of Evidence is beyond the scope of this suggested amendment.