Minnesota Session Laws - 1987, Regular Session

  

                         Laws of Minnesota 1987 

                        CHAPTER 120-H.F.No. 286 
           An act relating to witnesses; removing the presumption 
          against the competency of certain witnesses; amending 
          Minnesota Statutes 1986, section 595.02, subdivision 1.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1986, section 595.02, 
subdivision 1, is amended to read: 
    Subdivision 1.  [COMPETENCY OF WITNESSES.] Every person of 
sufficient understanding, including a party, may testify in any 
action or proceeding, civil or criminal, in court or before any 
person who has authority to receive evidence, except as provided 
in this subdivision: 
    (a) A husband cannot be examined for or against his wife 
without her consent, nor a wife for or against her husband 
without his consent, nor can either, during the marriage or 
afterwards, without the consent of the other, be examined as to 
any communication made by one to the other during the marriage. 
This exception does not apply to a civil action or proceeding by 
one against the other, nor to a criminal action or proceeding 
for a crime committed by one against the other or against a 
child of either, nor to a criminal action or proceeding in which 
one is charged with homicide or an attempt to commit homicide 
and the date of the marriage of the defendant is subsequent to 
the date of the offense, nor to an action or proceeding for 
nonsupport, neglect, dependency, or termination of parental 
rights.  
    (b) An attorney cannot, without the consent of the 
attorney's client, be examined as to any communication made by 
the client to the attorney or the attorney's advice given 
thereon in the course of professional duty; nor can any employee 
of the attorney be examined as to the communication or advice, 
without the client's consent.  
    (c) A member of the clergy or other minister of any 
religion shall not, without the consent of the party making the 
confession, be allowed to disclose a confession made to the 
member of the clergy or other minister in a professional 
character, in the course of discipline enjoined by the rules or 
practice of the religious body to which the member of the clergy 
or other minister belongs; nor shall a member of the clergy or 
other minister of any religion be examined as to any 
communication made to the member of the clergy or other minister 
by any person seeking religious or spiritual advice, aid, or 
comfort or advice given thereon in the course of the member of 
the clergy's or other minister's professional character, without 
the consent of the person.  
     (d) A licensed physician or surgeon, dentist, or 
chiropractor shall not, without the consent of the patient, be 
allowed to disclose any information or any opinion based thereon 
which the professional acquired in attending the patient in a 
professional capacity, and which was necessary to enable the 
professional to act in that capacity; after the decease of the 
patient, in an action to recover insurance benefits, where the 
insurance has been in existence two years or more, the 
beneficiaries shall be deemed to be the personal representatives 
of the deceased person for the purpose of waiving this 
privilege, and no oral or written waiver of the privilege shall 
have any binding force or effect except when made upon the trial 
or examination where the evidence is offered or received.  
    (e) A public officer shall not be allowed to disclose 
communications made to the officer in official confidence when 
the public interest would suffer by the disclosure.  
     (f) Persons of unsound mind, and persons intoxicated at the 
time of their production for examination, and children under ten 
years of age, if any of them are not competent witnesses if they 
lack capacity to remember or to relate truthfully facts 
respecting which they are examined, are not competent 
witnesses.  A child describing any act of sexual contact or 
penetration performed on or with the child by another may use 
language appropriate for a child of that age. 
    (g) A registered nurse, psychologist or consulting 
psychologist shall not, without the consent of the 
professional's client, be allowed to disclose any information or 
opinion based thereon which the professional has acquired in 
attending the client in a professional capacity, and which was 
necessary to enable the professional to act in that capacity. 
    (h) An interpreter for a person handicapped in 
communication shall not, without the consent of the person, be 
allowed to disclose any communication if the communication 
would, if the interpreter were not present, be privileged.  For 
purposes of this section, a "person handicapped in 
communication" means a person who, because of a hearing, speech 
or other communication disorder, or because of the inability to 
speak or comprehend the English language, is unable to 
understand the proceedings in which the person is required to 
participate.  The presence of an interpreter as an aid to 
communication does not destroy an otherwise existing privilege. 
    (i) A parent or the parent's minor child may not be 
examined as to any communication made in confidence by the minor 
to the minor's parent.  A communication is confidential if made 
out of the presence of persons not members of the child's 
immediate family living in the same household.  This exception 
may be waived by express consent to disclosure by a parent 
entitled to claim the privilege or by the child who made the 
communication, or by failure of the child or parent to object 
when the contents of a communication are demanded.  This 
exception does not apply to a civil action or proceeding by one 
spouse against the other or by a parent or child against the 
other, nor to a proceeding to commit either the child or parent 
to whom the communication was made or to place the person or 
property or either under the control of another because of an 
alleged mental or physical condition, nor to a criminal action 
or proceeding in which the parent is charged with a crime 
committed against the person or property of the communicating 
child, the parent's spouse, or a child of either the parent or 
the parent's spouse, or in which a child is charged with a crime 
or act of delinquency committed against the person or property 
of a parent or a child of a parent, nor to an action or 
proceeding for termination of parental rights, nor any other 
action or proceeding on a petition alleging child abuse, child 
neglect, abandonment or nonsupport by a parent.  
     (j) Sexual assault counselors may not be compelled to 
testify about any opinion or information received from or about 
the victim without the consent of the victim.  However, a 
counselor may be compelled to identify or disclose information 
in investigations or proceedings related to neglect or 
termination of parental rights if the court determines good 
cause exists.  In determining whether to compel disclosure, the 
court shall weigh the public interest and need for disclosure 
against the effect on the victim, the treatment relationship, 
and the treatment services if disclosure occurs.  Nothing in 
this clause exempts sexual assault counselors from compliance 
with the provisions of sections 626.556 and 626.557.  
     "Sexual assault counselor" for the purpose of this section 
means a person who has undergone at least 40 hours of crisis 
counseling training and works under the direction of a 
supervisor in a crisis center, whose primary purpose is to 
render advice, counseling or assistance to victims of sexual 
assault.  
     (k) A person cannot be examined as to any communication or 
document, including worknotes, made or used in the course of or 
because of mediation pursuant to an agreement to mediate.  This 
does not apply to the parties in the dispute in an application 
to a court by a party to have a mediated settlement agreement 
set aside or reformed.  A communication or document otherwise 
not privileged does not become privileged because of this 
paragraph.  This paragraph is not intended to limit the 
privilege accorded to communication during mediation by the 
common law. 
     (l) A child under ten years of age is a competent witness 
unless the court finds that the child lacks the capacity to 
remember or to relate truthfully facts respecting which the 
child is examined.  A child describing any act or event may use 
language appropriate for a child of that age. 
     Sec. 2.  [EFFECTIVE DATE.] 
     Section 1 is effective August 1, 1987, and applies to all 
trials and proceedings commenced on or after that date. 
    Approved May 14, 1987