Persons incompetent to testify

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

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.).