Chapter 491 Witnesses

491.702 - Perpetrator may be excluded from child victim deposition proceeding, when — sequestration of victim — review of tapes required, when.

Steven Groce, Attorney Advertisement

1.On motion of the juvenile officer, the court may exclude the alleged perpetrator from any or all deposition proceedings at which the child is to testify.However, where any such order of exclusion is entered, the child shall not be excused as a witness until the alleged perpetrator has had a reasonable opportunity to review the videotape recording in private with his counsel and to consult with his counsel; and until his counsel has been afforded the opportunity to cross-examine the child following such review and consultation.

2.The court may also order, on motion of the juvenile officer, during all predeposition procedures, recesses, and post-deposition matters that the child be sequestered from the view and presence of the alleged perpetrator.

3.In no event shall the child's videotaped testimony be admitted into evidence until all parties and their attorneys have been afforded a reasonable opportunity to review the videotape in private in the presence of each other.

(L. 1987 H.B. 598)

491.280 - Fees of witnesses.

1.Witnesses shall be allowed fees for their services in the amount of twenty-five dollars per day plus a mileage allowance determined as provided in section 33.095.

2.Each witness may be examined on oath by the court or by the clerk when the court shall so order, as to factors relevant to the proper amount of payment pursuant to this section.

(RSMo 1939 § 13420, A. 1949 S.B. 1149, A.L. 1957 p. 483, A.L. 1996 S.B. 869, A.L. 2003 H.B. 613)

Prior revisions: 1929 § 11798; 1919 § 11006; 1909 § 10709

491.380 - Competency of witnesses, how determined — oath of witnesses.

1.If a witness, on being produced, shall be objected to as incompetent, such objection shall be tried and determined by the associate circuit judge.

2.Every person offered as a witness, before any testimony shall be given by him, shall be duly sworn, or affirmed, that the evidence he shall give relating to the matter in issue between ______, plaintiff, and ______, defendant, shall be the truth, the whole truth, and nothing but the truth.

(RSMo 1939 § 2658, A.L. 1945 p. 765 § 94)

Prior revisions: 1929 § 2272; 1919 § 2822; 1909 § 7499

491.180 - Penalty where party refuses to attend and testify.

If a party, on being duly summoned, refuse to attend and testify, either in court or before any person authorized to take his deposition, besides being punished himself as for a contempt, his petition, answer or reply may be rejected, or a motion, if made by himself, overruled, or, if made by the adverse party, sustained.

(RSMo 1939 § 1894)

Prior revisions: 1929 § 1730; 1919 § 5417; 1909 § 6361

491.080 - Testimony of witness not to be used to convict him of fraud.

Whenever any person shall testify, either as a party or as a witness, in any suit or proceedings now or hereafter pending, the testimony of such person shall not be used as evidence to prove any fact in any suit or prosecution against such person for any penalty for violation of any law in relation to fraudulent conveyance of property.

(RSMo 1939 § 1893)

Prior revisions: 1929 § 1729; 1919 § 5416; 1909 § 6360

491.680 - Court may order video recording of alleged child victim, when — procedure — transcript — exclusion of defendant from proceedings, opportunity to review — cross-examination.

1.In any criminal prosecution under the provisions of chapter 565, 566 or 568 involving an alleged child victim, upon the motion of the prosecuting attorney, the court may order that an in-camera videotaped deposition of the testimony of the alleged child victim be made for use as substantive evidence at preliminary hearings and at trial.

2.If the court finds, at a hearing, that significant emotional or psychological trauma to the child which would result from testifying in the personal presence of the defendant exists, which makes the child unavailable as a witness at the time of the preliminary hearing or trial, the court shall order that an in-camera videotaped deposition of the testimony of the alleged child victim be made for use as substantive evidence at the preliminary hearings and at trial.Such recording shall be retained by the prosecuting attorney and shall be admissible in lieu of the child's personal appearance and testimony at preliminary hearings and at trial, conflicting provisions of section 544.270 notwithstanding.A transcript of such testimony shall be made as soon as possible after the completion of such deposition and shall be provided to the defendant together with all other discoverable materials.

3.Upon a finding of trauma as provided for in subsection 2 of this statute, the court may also exclude the defendant from the videotape deposition proceedings in which the child is to testify.Where any such order of exclusion is entered, the child shall not be excused as a witness until the defendant has had a reasonable opportunity to review the videotape deposition in private with his counsel and to consult with his counsel; and until his counsel has been afforded the opportunity to cross-examine the child following such review and consultation.

4.The court shall preside over the depositions, which shall be conducted in accordance with the rules of evidence applicable to criminal cases.

5.The attorney for the defendant shall have at least two opportunities to cross-examine the deposed alleged child victim: once prior to the preliminary hearing and at least one additional time prior to the trial.

6.Prior to the taking of the deposition which is to be used as substantive evidence at the trial pursuant to sections 491.675 to 491.693, the defendant's attorney shall be provided with such discoverable materials and information as the court may, on motion, direct; shall be afforded a reasonable time to examine such materials; and shall be permitted to cross-examine the child during the deposition.

7.If the defendant is not represented by counsel and if, upon inquiry, it appears to the court that the defendant will be unable to obtain counsel within a reasonable period of time, the court shall appoint the public defender or other counsel to represent the defendant at the deposition.

(L. 1985 H.B. 366, et al. § 9, A.L. 1992 S.B. 638)

(1989) Taking of video recording of child's deposition where defendant was excluded from room where deposition was taken was violation of defendant's right of confrontation where no evidence of possible trauma was offered.State v. Davidson, 764 S.W.2d 731 (Mo. App.W.D.).

491.290 - Fees, how paid.

The clerk of each court of record shall, on the application of any witness to have his fees allowed, enter on his book, under the title of the cause in which the witness was summoned or recognized, or if before the grand jury, the name of the witness, the number of days he has attended and the number of miles he has necessarily to travel in consequence of the summons or recognizance, and shall swear the witness to the truth of the facts contained in said entry, and it shall be the duty of the clerk to make out and deliver to each witness attending before the grand jury, and entitled to fees therefor, a scrip as required in case of grand jurors, which scrip shall be countersigned by the foreman of the grand jury, and shall be paid by the county treasurer in like manner as now by law required for the pay of grand jurors; and the clerk shall be allowed the same compensation for said services as is now allowed by law for like services in issuing scrip to grand jurors.

(RSMo 1939 § 13421)

Prior revisions: 1929 § 11799; 1919 § 11007; 1909 § 10710

491.090 - Summons of witnesses — procedure — consequences of failure to appear.

1.In all cases where witnesses are required to attend the trial in any cause in any court of record, a summons shall be issued by the clerk of the court wherein the matter is pending, or by some notary public of the county wherein such trial shall be had, stating the day and place when and where the witnesses are to appear.

2.The witness shall be required to attend a trial from time to time, and from term to term, until the case be disposed of or the witness is finally discharged by the court.The witness shall be liable to attachment for any default or failure to appear as a witness at the trial and adjudged to pay the costs.Costs shall not be allowed for any subsequent recognizance or subpoena for the witness.

(RSMo 1939 § 1897, A.L. 1945 p. 917, A.L. 1985 S.B. 5, et al.)

Prior revisions: 1929 § 1733; 1919 § 5420; 1909 § 6364

491.190 - Fine for nonattendance.

The court shall have power to impose a fine, not exceeding fifty dollars, on every person duly summoned as a witness, who shall not appear and testify; which fine may be remitted, for good cause shown, at the term to which he is summoned, or the next term thereafter.

(RSMo 1939 § 1903)

Prior revisions: 1929 § 1739; 1919 § 5426; 1909 § 6370

491.690 - Provisions of sections 491.675 to 491.693 not to apply where defendant has waived right to counsel — exceptions.

Where a defendant has waived the right to counsel and elected to represent himself, the provisions of sections 491.675 to 491.693 shall not apply, except in the discretion of the court, under such rules, procedures and restrictions as the court may, in the interests of justice, impose.

(L. 1985 H.B. 366, et al. § 12)

Effective 7-19-85

491.699 - Juvenile court hearings — court may order video recording of alleged child victim, when — procedure — cross-examination — counsel appointed for perpetrator, when.

1.Upon the motion of the juvenile officer, the court may order that an in-camera videotaped recording of the testimony of the alleged child victim be made for use as substantive evidence at a juvenile court hearing held pursuant to the provisions of chapter 211.The provisions of section 491.075 relating to the admissibility of statements made by a child under the age of twelve shall apply to proceedings in juvenile court.

2.In determining whether or not to allow such motion, the court shall consider the elements of the offense charged and the emotional or psychological trauma to the child if required to testify in open court or to be brought into the personal presence of the alleged perpetrator.Such recording shall be retained by the juvenile officer and shall be admissible in lieu of the child's personal appearance and testimony at juvenile court hearings.A transcript of such testimony shall be made as soon as possible after the completion of such deposition and shall be provided to all parties to the action.

3.The court shall preside over the depositions, which shall be conducted in accordance with the rules of evidence applicable to civil cases.

4.In any prosecution under either subdivision (2) or (3) of subsection 1 of section 211.031, the attorney for the alleged perpetrator shall have at least two opportunities to cross-examine the deposed alleged child victim.

5.Prior to the taking of the deposition which is to be used as substantive evidence at the hearing pursuant to sections 491.696 to 491.705, the attorney for any party to the action shall be provided with such discoverable materials and information as the court may, on motion, direct; shall be afforded a reasonable time to examine such materials; and shall be permitted to cross-examine the child during the deposition.

6.In any prosecution under either subdivision (2) or (3) of subsection 1 of section 211.031, if the alleged perpetrator is not represented by counsel and if, upon inquiry, it appears to the court that he or she will be unable to obtain counsel within a reasonable period of time, the court shall appoint the public defender or other counsel to represent the alleged perpetrator at the deposition.

(L. 1987 H.B. 598)

491.685 - Defendant may be excluded from child victim deposition proceedings, when.

1.On motion of the prosecuting attorney, the court may exclude the defendant from any or all deposition proceedings at which the child is to testify.However, where any such order of exclusion is entered, the child shall not be excused as a witness until the defendant has had a reasonable opportunity to review the videotape recording in private with his counsel and to consult with his counsel; and until his counsel has been afforded the opportunity to cross-examine the child following such review and consultation.

2.The court may also order, on motion of the prosecuting attorney, during all predeposition procedures, recesses, and post-deposition matters that the child be sequestered from the view and presence of the defendant.

3.In no event shall the child's videotaped testimony be admitted into evidence until the defendant and his attorney have been afforded a reasonable opportunity to review the videotape in private in the presence of each other.

(L. 1985 H.B. 366, et al. § 10)

Effective 7-19-85

491.440 - Uniformity of interpretation.

This law shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of the states which enact it.

(L. 1959 H.B. 295 § 6)

491.640 - Prosecutors coordinators training council may provide for security of witnesses and families, when — powers — request by law enforcement agencies, content — delegation of program administration, to whom.

1. The prosecutors coordinators training council, as established in section 56.760, may, upon the council's own initiative or at the request of the attorney general, any prosecuting attorney or law enforcement agency, provide for the security of witnesses, potential witnesses and their immediate families in criminal proceedings instituted or investigations pending against a person alleged to have engaged in a violation of state law.Providing for witnesses may include provision of housing facilities and for the health, safety and welfare of such witnesses and their immediate families, if testimony by such a witness might subject the witness or a member of his immediate family to danger of bodily injury, and may continue so long as such danger exists.

2.The prosecutors coordinators training council may authorize the purchase, rental or modification of protected housing facilities for the purpose of this section.The council may contract with any department of federal or state government to obtain or to provide the facilities or services to carry out this section.

3.The prosecutors coordinators training council may authorize expenditures to provide for the health, safety and welfare of witnesses and victims, and the families of such witnesses and victims, whenever, in his judgment, testimony from, or a willingness to testify by, such a witness or victim would place the life of such person, or a member of his family or household, in jeopardy.Applications by requesting law enforcement agencies under this section must include but not necessarily be limited to:

(1)Statement of conditions which qualify persons for protection;

(2)Precise methods the originating agency will use to provide protection, including relocation of persons and reciprocal agreements with other law enforcement agencies;

(3)Statement of projected costs over a specified period of time.

4.The prosecutors coordinators training council may delegate administration of the program set forth in this section to the executive director of the Missouri office of prosecution services.Subject to appropriations from the general assembly for the purposes provided for in this section, funds may be appropriated from the Missouri office of prosecution services fund set forth in subsection 2 of section 56.765, general revenue or federal funds.Under no circumstance shall the expenditures from general revenue for the purposes provided for in this section exceed the amount of ninety-five thousand dollars, if and when appropriated by the general assembly for such purposes.

(L. 1983 S.B. 24 § 5, A.L. 2004 S.B. 1211)

491.240 - Writ to obtain witness from county jail.

Such writ may also be issued by any such court, judge or justice thereof, upon application of a party to a suit or proceeding pending before any officer authorized to examine witnesses, to bring any person confined in the jail of the same county, or the county next adjoining that where the suit or proceeding is to be heard or had, before such officer, to be examined as a witness.

(RSMo 1939 § 1910, A. 1949 S.B. 1149)

Prior revisions: 1929 § 1746; 1919 § 5433; 1909 § 6377

491.340 - Attachment to be executed as in criminal cases — cost.

Every such attachment may be directed to any sheriff or other officer provided by law of the county in which the witness resides, and shall be executed in the same manner as a warrant in a criminal case; and the fees of the officer for issuing and serving the same shall be paid by the person against whom the same shall have been issued, unless he show reasonable cause, to the satisfaction of the associate circuit judge, for his omission to attend, in which case the party requiring such attendance shall pay all costs of such attachment.

(RSMo 1939 § 2653, A.L. 1945 p. 765 § 89)

Prior revisions: 1929 § 2267; 1919 § 2817; 1909 § 7494

491.140 - Witness liable to action, when.

When a party causing a witness to be summoned, shall have paid or tendered to such witness his legal fees for traveling, and one day's attendance, at the time of summoning such witness, if he fail to attend he shall be liable to the action of the party for all damages sustained by the nonattendance, unless he show sufficient cause to justify such absence.

(RSMo 1939 § 1904)

Prior revisions: 1929 § 1740; 1919 § 5427; 1909 § 6371

491.040 - Sections 491.010 and 491.030 construed.

Nothing in sections 491.010 and 491.030 shall in any manner affect the law relating to the attestation of the execution of last wills and testaments, or of any other instrument required by law to be attested, nor shall they be so construed as to compel any person to subject himself, by his testimony, to any prosecution for a criminal offense.

(RSMo 1939 § 1890)

Prior revisions: 1929 § 1726; 1919 § 5413; 1909 § 6357

491.015 - Prosecuting witness in certain cases not to be interrogated as to prior sexual conduct.

1.In prosecutions under chapter 566 or prosecutions related to sexual conduct under chapter 568, opinion and reputation evidence of the complaining witness' prior sexual conduct is inadmissible; evidence of specific instances of the complaining witness' prior sexual conduct or the absence of such instances or conduct is inadmissible, except where such specific instances are:

(1)Evidence of the sexual conduct of the complaining witness with the defendant to prove consent where consent is a defense to the alleged crime and the evidence is reasonably contemporaneous with the date of the alleged crime; or

(2)Evidence of specific instances of sexual activity showing alternative source or origin of semen, pregnancy or disease;

(3)Evidence of immediate surrounding circumstances of the alleged crime; or

(4)Evidence relating to the previous chastity of the complaining witness in cases, where, by statute, previously chaste character is required to be proved by the prosecution.

2.Evidence of the sexual conduct of the complaining witness offered under this section is admissible to the extent that the court finds the evidence relevant to a material fact or issue.

3.If the defendant proposes to offer evidence of the sexual conduct of the complaining witness under this section, he shall file with the court a written motion accompanied by an offer of proof or make an offer of proof on the record outside the hearing of the jury.The court shall hold an in camera hearing to determine the sufficiency of the offer of proof and may at that hearing hear evidence if the court deems it necessary to determine the sufficiency of the offer of proof.If the court finds any of the evidence offered admissible under this section the court shall make an order stating the scope of the evidence which may be introduced.Objections to any decision of the court under this section may be made by either the prosecution or the defendant in the manner provided by law.The in camera hearing shall be recorded and the court shall set forth its reasons for its ruling.The record of the in camera hearing shall be sealed for delivery to the parties and to the appellate court in the event of an appeal or other post trial proceeding.

(L. 1977 H.B. 502 § 1, A.L. 1986 S.B. 450)

Effective 3-17-86

(1982) Rape shield law creates only a presumption that evidence of a victim's prior sexual conduct is irrelevant; in limited circumstances such conduct may be relevant if proper procedural steps are followed. State v. Brown (Mo. banc), 636 S.W.2d 929.

(1987) For purposes of subdivision (1) of subsection 1 of this section, two years has been held not to be "reasonably contemporaneous", even in circumstances where the element of consent is extraordinary. State v. Foulk, 725 S.W.2d 56 (Mo.App.E.D.)

(1993) Rape shield statute is intended to protect complaining witness from questions regarding prior sexual conduct and does not prevent defendant from cross examining witness concerning prior sexual abuse complaint to establish motive for witness to fabricate present complaint.State v. Lampley, 859 S.W.2d 909 (Mo. App. E.D.).

491.205 - Court may compel testimony, witness immunity, exception, when, penalty.

1.In the case of any individual who has been or may be called to testify or provide other information at any proceeding ancillary to or before a circuit or associate circuit court or grand jury of the state of Missouri, the judge of the circuit in which the proceeding is or may be held may issue, in accordance with subsection 2 of this section, upon the written request of the prosecuting attorney an order requiring such individual to give testimony or provide other information which the individual refuses to give or provide on the basis of the individual's privilege against self-incrimination.When such an order is issued, the witness may not refuse to comply with the order on the basis of the witness's privilege against self-incrimination, but after complying with the order and giving the testimony or producing the evidence compelled by the order, no such person shall be criminally prosecuted or subjected to any criminal penalty for or on account of any act, transaction, matter or thing which is the subject matter of the inquiry in which the person testifies or produces evidence, except a prosecution for perjury, giving a false or misleading statement or contempt committed in answering or failing to answer, or in producing or failing to produce evidence in accordance with the order.

2.A prosecuting attorney may be granted an order compelling a witness to testify and produce evidence upon the approval of a verified application for witness immunity heard by a judge of the circuit court.The judge hearing the application for witness immunity may not preside over a grand jury proceeding where such testimony is given, and may not hear the subsequent criminal trial or any ancillary proceeding for which the immunity applies.Such application shall offer proof that:

(1)Such individual has refused or is likely to refuse to testify or provide other information on the basis of the individual's privilege against self-incrimination; and either:

(2)The testimony or other information to be provided by such individual is necessary to the investigation or prosecution and is otherwise unobtainable; or

(3)The testimony or other information to be provided by such individual is necessary for the prosecutor to prove a defendant's guilt beyond a reasonable doubt.

3.If a person refuses to testify on the basis of such person's privilege against self-incrimination after being given an order to testify under this section or produce evidence or other information, such person shall be adjudged in contempt and committed to the county jail until such time as the person purges himself or herself of this contempt by testifying or producing evidence and information as ordered, or the trial for which the person's testimony was requested has concluded.In no event shall the length of confinement exceed twelve months.

(L. 1997 H.B. 339)

491.705 - Court may order videotaped reexamination, when — testimony to be under oath.

1.At any time prior to a hearing, and for good cause shown, the court may, upon motion of any party, order a videotaped reexamination of the child where the interests of justice so require.

2.All testimony taken under sections 491.696 to 491.705 shall be under oath.

(L. 1987 H.B. 598)

491.450 - Short title.

This law may be cited as the "Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings".

(L. 1959 H.B. 295 § 1)

491.350 - Penalty for failure to obey subpoena without excuse.

If any witness so attached shall show a reasonable excuse for not appearing, as required by the subpoena, he shall be discharged, either with or without payment of the costs of the attachment, in the discretion of the associate circuit judge; but if he fail to show any good and sufficient reason for not attending, he shall be fined in such sum as the associate circuit judge shall think reasonable to impose, not exceeding twenty dollars, and may be committed until such fine and costs are paid, in like manner as persons may be committed for the nonpayment of fines and costs in criminal cases.

(RSMo 1939 § 2654, A.L. 1945 p. 765 § 90)

Prior revisions: 1929 § 2268; 1919 § 2818; 1909 § 7495

491.250 - Application for writ.

An application for such writ shall be verified by affidavit, and shall state the title and nature of the proceeding in which the testimony of the prisoner is desired, the court or officer before whom pending, and that the testimony of such prisoner is material and necessary to the applicant on the trial or hearing of such suit or proceeding, as he is advised by counsel, and verily believes.

(RSMo 1939 § 1911)

Prior revisions: 1929 § 1747; 1919 § 5434; 1909 § 6378

491.050 - Convicts competent witnesses — convictions and certain pleas may be proved to affect credibility.

Any person who has been convicted of a crime is, notwithstanding, a competent witness; however, any prior criminal convictions may be proved to affect his credibility in a civil or criminal case and, further, any prior pleas of guilty, pleas of nolo contendere, and findings of guilty may be proved to affect his credibility in a criminal case.Such proof may be either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.

(RSMo 1939 § 1916, A.L. 1981 H.B. 554)

Prior revisions: 1929 § 1752; 1919 § 5439; 1909 § 6383

(1971) Trial court erred in refusing to permit defendant in prosecution for robbery to inquire on cross-examination of witness whether or not he had been convicted of a crime since witness was the only witness who implicated defendant in the robbery. State v. Myer (Mo.), 473 S.W.2d 374.

(1971) Questions directed to the defendant on trial for murder implying he was guilty not only of moral misconduct but of offenses connected with prostitution, including being a pimp, were immaterial, irrelevant and designedly and manifestly prejudiced the only remedy for which was a new trial.State v. Taylor (Mo.), 473 S.W.2d 385.

(1971) Refusal by trial court to allow defendant to impeach state's four principal witnesses, adults at time of trial, on the basis that each had previously committed an offense while a juvenile, which would have been a crime if committed by an adult, was upheld. State v. Williams (Mo.), 473 S.W.2d 388.

(1974) It is reversible error for a party or a witness to be impeached by showing an arrest even where he has testified about previous convictions. State v. Massa (A.), 512 S.W.2d 912.

(1974) This section confers an absolute right to cross-examine as to conviction of a crime solely to affect credibility. Forbis v. Associated Wholesale Grocers, Inc. (A.), 513 S.W.2d 760.

(1976) Held, cross-examination on collateral matters (except for a criminal conviction) binds the examiner to the answer given. State v. Diamond (A.), 532 S.W.2d 873.

(1976) Overruling defendant's pretrial motion, seeking to limit state's cross-examination concerning his previous convictions in event he should decide to take the stand thereby depriving him of right to make intelligent decision before trial as to whether he could take the stand, was not error. State v. Tolliver (Mo.), 544 S.W.2d 565.

(1978) It is permissible to impeach the credibility of a witness by showing pardoned convictions. Durham v. State (A.), 571 S.W.2d 673.

(1985) Held, that a witness can be impeached by his prior guilty plea, even though he had completed probation under a suspended imposition of sentence. State v. Brooks (A.), 694 S.W.2d 851.

(1995) "Conviction" does not include finding of guilty when imposition of sentence was suspended.M.A.B. v. Nicely, 909 S.W.2d (Mo.banc).

491.150 - Attendance, how enforced.

A person summoned as a witness in any cause pending in any court of record, and failing to attend, may be compelled, by writ of attachment against his body, to appear, which may be served in any county in the state, and the sheriff may serve such writ of attachment, when issued by any court of record of his county in term time, in any county adjoining that in which the court is being held.

(RSMo 1939 § 1900)

Prior revisions: 1929 § 1736; 1919 § 5423; 1909 § 6367

491.078 - Juvenile court adjudication, use to affect credibility — sexual offense adjudication, affect on credibility — multiple adjudications, admissible, when.

1.Notwithstanding any other provision of law to the contrary, a juvenile court adjudication for any of the following acts may be used to affect the credibility of a witness or a defendant in a criminal case, if such acts occurred within three years of the date of any sworn testimony by the witness or defendant:

(1)An act that would have been a class A or class B felony if committed by an adult;

(2)An act that would have been a class C or class D felony if committed by an adult, if the juvenile court record contains at least one other adjudication for any act that would have been a felony if committed by an adult.

2.In any case in which a defendant is charged with a sexual offense under the provisions of chapter 566, a juvenile court adjudication of the defendant may be used to question the credibility of the defendant if such adjudication is for an act which would have been a violation of chapter 566 if the act had been committed by an adult and if such juvenile court adjudication occurred within three years of the commission of the pending offense.If the defendant's juvenile court records contain more than one adjudication for acts which would have been violations of chapter 566 if committed by an adult, such multiple adjudications shall be admissible for impeachment regardless of when they occurred.

(L. 1995 H.B. 174, et al. § 1)

491.725 - Citation of law — definitions — applicability.

1.This section shall be known and may be cited as the "Child Witness Protection Act".

2.As used in this section, the following terms shall mean:

(1)"Child", a person fourteen years of age or under, or at the discretion of the court, a person fifteen to seventeen years of age, who is a witness in any judicial proceeding under chapter 452 or 453, or the alleged victim or witness in any judicial proceeding under chapter 455, 565, 566, or 568.The court shall make written findings on the record when a child fifteen to seventeen years of age is included under this subdivision."Victim" or "witness" shall not include any child accused of committing a felony; however, these terms may, in the court's discretion, include:

(a)A child where such child's participation in a felony appears to have been induced, coerced, or unwilling; or

(b)A child who has participated in the felony, but who has subsequently and voluntarily agreed to testify on behalf of the state;

(2)"Support person", an adult, designated by the court to serve as a support person, who is known to the child victim or witness and who has no direct legal or pecuniary interest in the outcome of the judicial proceeding.

3.In order to facilitate testimony that is fair and accurate, for the benefit of all parties, and in order to protect all parties from the risks of a child becoming confused while testifying in a judicial proceeding, the following child witness protection act shall apply to all children testifying in court:

(1)Whether at a competency hearing or trial itself, the judge shall ensure that any oath that is required of a child shall be administered in such a manner that the child may fully understand his or her duty to tell the truth;

(2)The court shall take care to ensure that questions are stated in a form which is appropriate to the age of the child.The court shall explain to the child that if he or she does not understand a question, the child has the right to say that he or she does not understand the question and to have the question restated in a form that the child does understand;

(3)In the court's discretion, the taking of testimony from a child victim or witness may be limited in duration or limited to normal school hours.The court may order a recess when the energy, comfort, or attention span of the child warrants;

(4)Upon motion made by the child, his or her representative, or any party to the judicial proceeding, at least thirty days in advance of the judicial proceeding, the court may allow the child to have a toy, blanket, or similar item in his or her possession while testifying, but such item shall only be allowed if:

(a)All parties agree; or

(b)If the movant shows the court by a preponderance of evidence that:

a.The child in question cannot reliably testify without the item in his or her possession; and

b.Allowing the item is not likely to prejudice the trier of fact in hearing and evaluating the child's testimony;

(5)Upon motion made by the child, his or her representative, or any party to the judicial proceeding, at least thirty days in advance of the judicial proceeding, the court may designate a support person, who shall be present in the courtroom, in view of the child witness.The court may allow the support person to remain in close proximity to the child during the child's testimony, but such action shall only be allowed if:

(a)All parties agree; or

(b)If the movant shows the court by a preponderance of the evidence that:

a.The child in question cannot reliably testify without the support person in close proximity during the testimony; and

b.Allowing the support person to be in close proximity to the child during testimony is not likely to prejudice the trier of fact in hearing and evaluating the child's testimony.

The support person shall not obscure the child from the view of the defendant or the trier of fact.A support person shall not provide the child with an answer to any question directed to the child during the course of the child's testimony or otherwise prompt the child or otherwise influence the testimony of the child.If the support person attempts to influence or affect in any manner the testimony of the child victim or witness during the giving of testimony or at any other time, the court shall exclude that support person, refer the matter of misconduct of the support person to the prosecuting attorney, and designate an alternative support person;

(6)The court shall prevent intimidation or harassment of the child witness by the parties or their attorneys.Insofar as it is consistent with the constitutional rights of the parties to confront and cross-examine adverse witnesses, the judge may rephrase any questions in order to prevent any such intimidation or harassment; and

(7)Upon its own motion or the motion of any party to the judicial proceeding, at least thirty days in advance of the judicial proceeding, the court may order such accommodations as are appropriate under the circumstances to ensure the comfort of the child victim or witness, including the following measures:

(a)Adjusting the layout of the courtroom;

(b)Conducting the proceedings outside the normal courtroom; or

(c)Relaxing the formalities of the proceedings;

provided that, such measures are consistent with the rights of all parties under the constitution and laws of the United States and the state of Missouri.

(L. 2009 H.B. 863)

491.678 - Child defined.

For purposes of sections 491.675 to 491.693, the term "child" means a person under seventeen years of age who is the alleged victim in any criminal prosecution under chapter 565, 566 or 568.

(L. 1985 H.B. 366, et al. § 8)

Effective 7-19-85

491.074 - Prior inconsistent statement may be admissible in criminal cases as substantive evidence.

Notwithstanding any other provisions of law to the contrary, a prior inconsistent statement of any witness testifying in the trial of a criminal offense shall be received as substantive evidence, and the party offering the prior inconsistent statement may argue the truth of such statement.

(L. 1985 H.B. 366, et al., A.L. 2000 S.B. 757 & 602)

(1987) The term "prior inconsistent statements" as used in this section has the same meaning as judicial definitions of such term before effective date of this section. State v. Dunn, 731 S.W.2d 297 (Mo.App.W.D.).

491.070 - Cross-examination of witnesses — scope.

A party to a cause, civil or criminal, against whom a witness has been called and given some evidence, shall be entitled to cross-examine said witness (except where a defendant in a criminal case is testifying in his own behalf) on the entire case, but this shall not be construed to entitle a defendant who has pleaded a counterclaim or setoff in a civil case to cross-examine a plaintiff's witness in respect thereto, but as to said counterclaim or setoff such witness (if examined by defendant in relation thereto) shall be deemed defendant's witness and be so examined in the course of the trial.

(RSMo 1939 § 1891)

Prior revisions: 1929 § 1727; 1919 § 5414; 1909 § 6358

491.170 - Witness attached, may be discharged on bail.

When a writ of attachment, authorized by section 491.160, shall be executed, the sheriff or other officer shall discharge such witness, on his entering into a recognizance to the state of Missouri, with sufficient security, in the sum of one hundred dollars, which the officer executing the writ is authorized to take, conditioned for the appearance and due attendance of such witness according to the exigency of such writ.

(RSMo 1939 § 1902)

Prior revisions: 1929 § 1738; 1919 § 5425; 1909 § 6369

491.370 - Cost of surplus witnesses paid by whom.

If either party subpoena more than three witnesses to prove any one fact, or shall subpoena any person or persons and not examine them as witnesses on the trial, he shall pay the costs occasioned by such surplus or unnecessary witness or witnesses, unless the testimony of such unexamined witnesses shall be rendered unnecessary by admissions of the opposite party on the trial.

(RSMo 1939 § 2657, A.L. 1945 p. 765 § 93)

Prior revisions: 1929 § 2271; 1919 § 2821; 1909 § 7498

491.693 - Testimony to be under oath.

All testimony taken under sections 491.675 to 491.693 shall be under oath.

(L. 1985 H.B. 366, et al. § 13)

Effective 7-19-85

491.270 - Prisoner to be remanded after testifying.

A prisoner who shall be brought before any court, public body or officer, upon a writ of habeas corpus, to testify, shall be remanded, after having testified, to the prison from which he was taken.

(RSMo 1939 § 1913)

Prior revisions: 1929 § 1749; 1919 § 5436; 1909 § 6380

CROSS REFERENCE:

Television, closed circuit coverage of prisoners for court appearance when, requirements, 561.031

491.687 - Court may order videotaped reexamination, when.

At any time prior to trial, and for good cause shown, the court may, upon motion of any party, order a videotaped reexamination of the child where the interests of justice so require.

(L. 1985 H.B. 366, et al. § 11)

Effective 7-19-85

491.160 - Attachment may issue, when.

When a cause shall be continued on account of the absence of a witness, duly summoned, and the party for whom such witness shall have been summoned shall make affidavit that such absent witness is material, and that he cannot safely go to trial without his testimony, the court may award a writ of attachment, directed to the sheriff or other proper officer of the proper county, commanding him to take the body of such witness, that he appear and testify in the cause at the next term thereafter; and the clerk shall issue such writ accordingly, stating therein the day on which the cause is set for trial, as the day of his appearance.

(RSMo 1939 § 1901)

Prior revisions: 1929 § 1737; 1919 § 5424; 1909 § 6368

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.

(RSMo 1939 § 1895, A.L. 1977 H.B. 175, A.L. 1983 S.B. 44 & 45, A.L. 1984 H.B. 1255, A.L. 1985 H.B. 366, et al., A.L. 1988 S.B. 640, A.L. 1999 H.B. 570)

Prior revisions: 1929 § 1731; 1919 § 5418; 1909 § 6362

CROSS REFERENCE:

Child, under age ten years, witness in criminal trial, supreme court to develop jury instruction, 477.012

(1975) Examination of hospital records by hospital staff to determine qualifications of a staff physician does not violate physician —patient privilege. Klinge v. Lutheran Medical Center of St. Louis (A.), 518 S.W.2d 157.

(1975) Held that person calling his adversary is not bound by his testimony and may prove the contrary by other witnesses. Matter of Brown (A.), 527 S.W.2d 395.

(1976) Held that incompetency of attorney to testify to matter privileged by attorney client relationship survives death of client.McCaffrey v. Estate of Brennan (A.), 533 S.W.2d 264.

(1987) The physician-patient privilege created by subdivision (5) of this section applies only to physicians and statements made to a nurse employed by a hospital who at the time the statements were heard by the nurse was not working under the direction of any physician were not privileged. State v. Shirley, 731, S.W.2d 49 (Mo.App.S.D.).

(2001) Physician-patient privilege does not apply against an insurance company.Inghram v. Mutual of Omaha Ins. Co., 170 F.Supp.2d 907 (W.D.Mo.).

491.260 - Application of prosecuting officers.

When such application shall be made by the attorney general, prosecuting or circuit attorney, or other public prosecutor, it shall not be necessary to swear to the truth of the facts set forth in the application.

(RSMo 1939 § 1912)

Prior revisions: 1929 § 1748; 1919 § 5435; 1909 § 6379

491.360 - Continuance of case — associate circuit judge to notify witnesses.

When any cause shall be continued by the associate circuit judge, it shall be his duty forthwith to call before him all witnesses summoned in the cause, and verbally notify such as may attend to appear before him, to testify in the cause, on the day set for trial, which verbal notice shall be in all respects as valid as a summons; and the associate circuit judge shall enter in his record the fact of notice and the names of the witnesses notified.No summons shall thereafter issue to any witness notified as directed.

(RSMo 1939 § 2656, A.L. 1945 p. 765 § 92)

Prior revisions: 1929 § 2270; 1919 § 2820; 1909 § 7497

491.030 - Adverse party may be compelled to testify in civil cases.

Any party to any civil action or proceeding may compel any adverse party, or any person for whose immediate and adverse benefit such action or proceeding is instituted, prosecuted or defended, to testify as a witness in his behalf, in the same manner and subject to the same rules as other witnesses; provided, that the party so called to testify may be examined by the opposite party, under the rules applicable to the cross-examination of witnesses.

(RSMo 1939 § 1889)

Prior revisions: 1929 § 1725; 1919 § 5412; 1909 § 6356

(1969) Held, the exception to the rule that a party may not impeach his own witness exists where the witness is confronted with his own prior inconsistent statement. Wells v. Gofort (Mo. Banc), 443 S.W.2d 155.

(1976) Held, where plaintiff called defendant as his witness he is not bound by his testimony unless it is the only testimony in the case on that point. Lamb v. Heiligers (A.), 532 S.W.2d 820.

491.130 - Fees to be tendered, when.

A witness shall not be compelled to attend, as such, in a civil suit, at a greater distance than forty miles from his place of residence, unless his legal fees for traveling, in going to and returning from the place of trial, and one day's attendance, are paid or tendered to him at the time of summoning such witness.

(RSMo 1939 § 1899)

Prior revisions: 1929 § 1735; 1919 § 5422; 1909 § 6366

491.330 - Associate circuit judge may order witness attached, when.

Whenever it shall appear to the satisfaction of the associate circuit judge that any person duly subpoenaed to appear before him in a suit shall have failed without just cause to attend as a witness in conformity to such subpoena, and the party in whose behalf the subpoena was issued, or his attorney, shall make oath that the testimony of such witness is material, the associate circuit judge shall have power to issue an attachment to compel the attendance of such witness.

(RSMo 1939 § 2652, A.L. 1945 p. 765 § 88)

Prior revisions: 1929 § 2266; 1919 § 2816; 1909 § 7493

491.230 - Power to issue writ of habeas corpus — persons detained in correctional facility shall not attend civil proceeding — exceptions — conditions.

1.Courts of record, and any judge or justice thereof, shall have power, upon the application of any party to a criminal suit or proceeding, pending in any court of record, to issue a writ of habeas corpus for the purpose of bringing before such court any person who may be detained in jail or prison, within the state, for any cause, to be examined as a witness in such suit or proceeding, on behalf of the applicant.

2.No person detained in a correctional facility of the department of corrections shall appear and attend or be caused to appear and attend any civil proceeding, regardless of whether he is a party, except when:

(1)The offender is a respondent in a chapter 211 proceeding to terminate parental rights.In such cases the trial judge may only issue a writ of habeas corpus ad testificandum to an offender after the department of corrections has been notified and allowed fifteen days to file a written objection and be granted an opportunity to appear and make an oral presentation in opposition to the offender's appearance on the basis of security considerations and the best interests of the child or children; or

(2)The offender is a party to the civil proceeding and the court finds that the offender will be substantially and irreparably prejudiced by his failure to attend a trial on the merits in the civil proceeding.In such cases the trial judge may issue a writ of habeas corpus ad testificandum to an offender only after the department of corrections has been notified and allowed fifteen days to file written objections and been granted an opportunity to appear and make an oral presentation in opposition to the offender's appearance on the basis of security considerations.

(RSMo 1939 § 1909, A.L. 1990 H.B. 974, A.L. 1995 H.B. 424)

Prior revisions: 1929 § 1745; 1919 § 5432; 1909 § 6376

491.430 - Exemption from arrest and service of process.

1.If a person comes into this state in obedience to a summons directing him to attend and testify in this state he is not, while in this state pursuant to such summons, subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons.

2.If a person passes through this state while going to another state in obedience to a summons to attend and testify in that state or while returning therefrom, he is not while so passing through this state subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons.

(L. 1959 H.B. 295 § 5)

491.120 - Subpoenas, how served and returned.

1.The service of a subpoena to testify shall be by reading the same or delivering a copy thereof to the person to be summoned; provided, that in all cases where the witness shall refuse to hear such subpoena read or to receive a copy thereof, the offer of the officer or other person to read the same or to deliver a copy thereof, and such refusal, shall be a sufficient service of such subpoena.

2.The return shall show the manner of service; and in civil cases, if the witness reside at a greater distance than forty miles from the place of trial, it shall be so stated in the return, and also whether his legal fees have been tendered or paid, and if served by an officer his return shall be conclusive of the facts therein stated; if served by a private person, the return shall be verified by affidavit, which shall be received as evidence, and such affidavit may be made before the sheriff of the county where such service is made.

(RSMo 1939 § 1908)

Prior revisions: 1929 § 1744; 1919 § 5431; 1909 § 6375

491.220 - Witness, when free from arrest.

Witnesses shall be privileged from arrest in all cases, except treason, felony and breach of the peace, during their attendance on any court, or where their attendance is required by subpoena, and in going to and returning thence, allowing one day for every twenty miles from their abode.

(RSMo 1939 § 1906)

Prior revisions: 1929 § 1742; 1919 § 5429; 1909 § 6373

491.320 - Validity of subpoena.

A subpoena issued by an associate circuit judge shall be valid to compel the attendance in an associate circuit judge's court of a witness, as provided in sections 491.010 to 491.270.

(RSMo 1939 § 2650, A.L. 1945 p. 765 § 86)

Prior revisions: 1929 § 2264; 1919 § 2814; 1909 § 7491

491.620 - Pretrial releases of defendant conditional — notice of prohibited witness tampering activities required.

1.Any pretrial release of any defendant whether on bail or under any other form of recognizance shall be deemed as a matter of law to include a condition that the defendant neither do nor cause to be done nor permit to be done on his behalf any act prescribed by section 575.270.

2.Any request form for bail or bond given by the clerk of any court, by any court, by any surety or bondsman, and any written promise to appear on one's own recognizance shall contain in a conspicuous location notice of prohibited activities under section 575.270.

(L. 1983 S.B. 24 § 4)

491.420 - Witness from another state summoned to testify in this state.

1.If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigations commenced or about to commence, in this state, is a material witness in a prosecution pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required.The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his attendance in this state.This certificate shall be presented to a judge of a court of record in the county in which the witness is found.

2.If the witness is summoned to attend and testify in this state he shall be tendered by the treasurer of the county in which the prosecution is pending the sum of ten cents a mile for each mile by the ordinary traveled route to and from the court where the prosecution is pending, and fifteen dollars for each day that he is required to travel and attend as a witness.A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court.If the witness, after coming into this state, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.

(L. 1959 H.B. 295 § 4)

(1974) Case remanded for hearing to determine if failure to subpoena alibi witnesses from another state was ineffectiveness of counsel. Garton v. Swenson (C.A. Mo.), 497 F.2d 1137.

491.675 - Citation of sections 491.675 to 491.705.

The provisions of sections 491.675 to 491.705 shall be known and may be cited as the "Child Victim Witness Protection Law".

(L. 1985 H.B. 366, et al. § 7, A.L. 1987 H.B. 598)

491.075 - Statement of child under fourteen or vulnerable person admissible, when.

1.A statement made by a child under the age of fourteen, or a vulnerable person, relating to an offense under chapter 565, 566, 568 or 573, performed by another, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings in the courts of this state as substantive evidence to prove the truth of the matter asserted if:

(1)The court finds, in a hearing conducted outside the presence of the jury that the time, content and circumstances of the statement provide sufficient indicia of reliability; and

(2)(a) The child or vulnerable person testifies at the proceedings; or

(b)The child or vulnerable person is unavailable as a witness; or

(c)The child or vulnerable person is otherwise physically available as a witness but the court finds that the significant emotional or psychological trauma which would result from testifying in the personal presence of the defendant makes the child or vulnerable person unavailable as a witness at the time of the criminal proceeding.

2.Notwithstanding subsection 1 of this section or any provision of law or rule of evidence requiring corroboration of statements, admissions or confessions of the defendant, and notwithstanding any prohibition of hearsay evidence, a statement by a child when under the age of fourteen, or a vulnerable person, who is alleged to be victim of an offense under chapter 565, 566, 568 or 573 is sufficient corroboration of a statement, admission or confession regardless of whether or not the child or vulnerable person is available to testify regarding the offense.

3.A statement may not be admitted under this section unless the prosecuting attorney makes known to the accused or the accused's counsel his or her intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the accused or the accused's counsel with a fair opportunity to prepare to meet the statement.

4.Nothing in this section shall be construed to limit the admissibility of statements, admissions or confessions otherwise admissible by law.

5.For the purposes of this section, "vulnerable person" shall mean a person who, as a result of an inadequately developed or impaired intelligence or a psychiatric disorder that materially affects ability to function, lacks the mental capacity to consent, or whose developmental level does not exceed that of an ordinary child of fourteen years of age.

(L. 1985 H.B. 366, et al., A.L. 1992 S.B. 638, A.L. 2004 H.B. 1453, A.L. 2008 S.B. 714, et al., A.L. 2012 S.B. 628)

(2002) Subsection 1 of section does not require child-declarant to be a victim in order to admit his or her hearsay statements.State v. Bass. 81 S.W.3d 595 (Mo.App.W.D.).

(2002) Section does not impose a burden on either party to prove reliability or unreliability, but places burden of production on proponent of hearsay statement.State v. Porras, 84 S.W.3d 153 (Mo.App.W.D.).

(2006) Application of section is subject to the confrontation clause of the Sixth Amendment to the U.S. Constitution; child's out-of-court statements regarding molestation were testimonial statements made without defendant's opportunity to cross-examine the witness.State v. Justus, 205 S.W.3d 872 (Mo.banc).

(2007) Absence of law enforcement factor in child victim's statements to her mother made them non-testimonial; admission of statements under section does not violate confrontation clause of Sixth Amendment.In re N.D.C., 229 S.W.3d 602 (Mo.banc).

(2009) Section allowing admission of hearsay statements of child victim of sexual offenses is constitutional under the Confrontation Clause.State v. Perry, 275 S.W.3d 237 (Mo.banc).

(2011)Section allowing hearsay statements of a minor less than fourteen to be admitted as substantive evidence under certain conditions is constitutional.State v. Biggs, 333 S.W.3d 472 (Mo.banc).

491.696 - Child defined — videotaped testimony for juvenile court hearings.

For purposes of sections 491.696 to 491.705, the term "child" means a person seventeen years of age or under who is the alleged victim of sexual abuse, physical abuse, or neglect as such terms are defined in section 210.110.

(L. 1987 H.B. 598)

491.200 - Penalty for refusing to testify.

A person summoned as a witness, and attending, who shall refuse to give evidence which may lawfully be required to be given by such person, on oath or affirmation, may be committed to prison by the court, or other person authorized to take his deposition or testimony, there to remain, without bail, until he gives such evidence.

(RSMo 1939 § 1905)

Prior revisions: 1929 § 1741; 1919 § 5428; 1909 § 6372

491.100 - Summons, form — how issued — subpoena for property, court's authority to quash, when exercised.

1.Such summons shall be in the form of a subpoena, shall state the name of the court and the title of the action, the names, addresses and telephone numbers of the attorneys for the respective parties and identifying the attorney or party requesting the attendance of the witness and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified or shall otherwise advise the witness of the name and telephone number of a person who can direct the witness of the time and place his appearance is required.The clerk of the court wherein the matter is pending, or the notary public of the county wherein such trial shall be had, shall issue a subpoena, or a subpoena for the production of objects and documentary evidence, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service.

2.The court may, on application of the party causing the subpoena to be issued, order that the witness shall appear, from time to time until the case is disposed of or he is otherwise excused by the court.

3.Where a subpoena commands the person to whom it is directed to produce the objects, books, papers, or documents designated therein, the court upon motion may, promptly, and in any event at or before the time specified in the subpoena for compliance therewith, quash the subpoena if it is unreasonable and oppressive or condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the objects, books, papers, or documents.

(RSMo 1939 § 1898, A.L. 1947 V. II p. 237, A.L. 1985 S.B. 5, et al.)

Prior revisions: 1929 § 1734; 1919 § 5421; 1909 § 6365

(1975) Report of assistant manager made within a few minutes after accident was not subject to discovery procedures since it was made for use of defendant's attorney and was part of the privileged communication between client and counsel. Lindberg v. Safeway Stores Inc. (A.), 525 S.W.2d 571.

491.400 - Definitions.

As used in sections 491.400 to 491.450 the following terms mean and include:

(1)"State", any territory of the United States and District of Columbia.

(2)"Summons", a subpoena, order or other notice requiring the appearance of a witness.

(3)"Witness", a person whose testimony is desired in any proceeding or investigation by a grand jury or in a criminal action, prosecution or proceeding.

(L. 1959 H.B. 295 § 2)

491.600 - Courts with criminal jurisdiction may issue orders to protect witness or victim.

Any court with jurisdiction over any criminal matter may, in its discretion, upon substantial evidence, which may include hearsay, that intimidation or dissuading of any person who is a victim or who is a witness has occurred or is reasonably likely to occur, issue orders including but not limited to the following:

(1)An order that a defendant not engage in activity as defined by section 575.270 and maintain a prescribed geographic distance from a witness or victim;

(2)An order that a person before the court other than a defendant, including but not limited to a subpoenaed witness or other person entering the courtroom of said court, not engage in activity as defined by section 575.270, and maintain a prescribed geographic distance from a witness or victim;

(3)An order that any person described in subdivision (1) or (2) of this section have no connection whatsoever with any specified witness or any victim, except through an attorney under such reasonable restrictions as the court may impose.

(L. 1983 S.B. 24 § 2)

491.310 - Associate circuit judge to issue subpoenas.

The associate circuit judge shall issue subpoenas for witnesses at the instance of either party, and shall include all the witnesses ordered at the same time by a party in one subpoena.

(RSMo 1939 § 2649, A.L. 1945 p. 765 § 85)

Prior revisions: 1929 § 2263; 1919 § 2813; 1909 § 7490

491.210 - Witness not excused from testifying, when.

No competent witness in a case shall be excused from answering a question relevant to the matter in issue, on the ground that the answer to such question may tend to establish the fact that such witness owes a debt or is otherwise subject to a civil suit.

(RSMo 1939 § 1896)

Prior revisions: 1929 § 1732; 1919 § 5419; 1909 § 6363

491.010 - Witness's interest does not disqualify — exception — statements of deceased persons and incompetents and other parties to the transaction — abrogation of deadman statute.

1.No person shall be disqualified as a witness in any civil suit or proceeding at law or in equity, by reason of his interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his credibility.

2.In any such suit, proceeding or probate matter, where one of the parties to the contract, transaction, occurrence or cause of action, or his agent in such matter, is dead or is shown to be incompetent, and the adverse party or his agent testifies with respect thereto, then any relevant statement or statements made by the deceased party or agent or by the incompetent prior to his incompetency, shall not be excluded as hearsay, provided that in trials before a jury, the trial judge shall first determine by voir dire examination out of the hearing of the jury that the declarant would have been a competent witness and that his alleged statement or statements would have been admissible in evidence if he were available to testify.

3.The provisions of this section shall apply to all trials commenced after September 28, 1985.

(RSMo 1939 § 1887, A.L. 1983 S.B. 44 & 45, A.L. 1985 S.B. 35, et al.)

Prior revisions: 1929 § 1723; 1919 § 5410; 1909 § 6354

491.110 - Subpoenas, by whom served.

Subpoenas shall be directed to the person to be summoned to testify, and may be served by the sheriff, coroner, marshal or any constable in the county in which the witnesses to be summoned reside or may be found, or by any disinterested person who would be a competent witness in the cause, and the sheriff, coroner, marshal or constable of any county may serve any subpoena issued out of any court of record of their county, in term time, in any county adjoining that in which the court is being held.

(RSMo 1939 § 1907)

Prior revisions: 1929 § 1743; 1919 § 5430; 1909 § 6374

491.410 - Summoning witness in this state to testify in another state.

1.If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in this state certifies under the seal of such court that there is a criminal prosecution pending in such court, or that a grand jury investigation has commenced or is about to commence, that a person being within this state is a material witness in such prosecution, or grand jury investigation, and his presence will be required for a specified number of days, upon presentation of the certificate to any judge of a court of record in the county in which such person is, the judge shall fix a time and place for a hearing, and shall make an order directing the witness to appear at a time and place certain for the hearing.

2.If at a hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or a grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending, or grand jury investigation has commenced or is about to commence and of any other state through which the witnesses may be required to pass by ordinary course of travel, will give to him protection from arrest and the service of civil and criminal process, he shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending, or where a grand jury investigation has commenced or is about to commence at a time and place specified in the summons.In any such hearing the certificate shall be prima facie evidence of all the facts stated therein.

3.If the certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure his attendance in the requesting state, the judge may, in lieu of notification of the hearing, direct that the witness be forthwith brought before him for a hearing.If at a hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending, or grand jury investigation has commenced or is about to commence and of any other state through which the witness may be required to pass by ordinary course of travel, will give to him protection from arrest and service of civil and criminal process, he may, in lieu of issuing subpoena or summons, order that the witness be forthwith taken into custody and delivered to an officer of the requesting state.In any such hearing the certificate shall be prima facie evidence of all the facts stated therein.

4.If the witness, who is summoned as provided in this section, after being paid or tendered by some properly authorized person the sum of ten cents a mile for each mile by the ordinary traveled route to and from the court where the prosecution is pending and fifteen dollars for each day that he is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.

(L. 1959 H.B. 295 § 3)

491.610 - Violation of protective orders, penalties.

Any person violating any order made pursuant to section 491.600 may be punished in any of the following ways:

(1)For any substantive offense described in section 575.270 where such violation of an order is a violation of section 575.270 as a contempt of the court making such order; however, no finding of contempt shall be a bar for prosecution for a substantive offense as defined in section 575.270, but:

(a)Any person so held in contempt shall be entitled to credit for any punishment imposed against any sentence imposed or conviction of said substantive offense; and

(b)Any conviction or acquittal for any substantive offense under section 575.270 shall be a bar to subsequent punishment for contempt arising out of the same act;

(2)By revocation of any form of pretrial release, or the forfeiture of bail or both and to issuance of a bench warrant for the defendant's arrest or remanding him to custody.The revocation may be made whether the violation of the order complained of has been committed by the defendant personally or was caused or encouraged to have been committed by such defendant.

(L. 1983 S.B. 24 § 3)

491.710 - Hearings involving child witnesses given docket priority — delays or continuances granted, when.

In all criminal cases and juvenile court hearings under chapter 211 involving a child victim or witness, as defined in section 491.678 or 491.696, the court shall give docket priority.The court and the prosecuting or circuit attorney shall take appropriate action to insure a speedy trial in order to minimize the length of time the child must endure the stress of his or her involvement in the proceeding.In ruling on any motion or other request for a delay or continuance of proceedings, the court shall consider and give weight to any adverse impact the delay or continuance may have on the well-being of a child victim or witness.