SELECTED EXCERPTS FROM K.S.A. Chapter 60.--PROCEDURE, CIVIL

Article 4.--RULES OF EVIDENCE

Note: Not All Provisions May Be Current!

 

      60-401. Definitions. As used in this article unless the context otherwise requires:

      (a) "Evidence" is the means from which inferences may be drawn as a basis of proof in duly constituted judicial or fact-finding tribunals, and includes testimony in the form of opinion, and hearsay.

      (b) "Relevant evidence" means evidence having any tendency in reason to prove any material fact.

      (c) "Proof" is all of the evidence before the trier of the fact relevant to a fact in issue which tends to prove the existence or non-existence of such fact.

      (d) "Burden of proof" means the obligation of a party to meet the requirements of a rule of law that the fact be proven either by a preponderance of the evidence or by clear and convincing evidence or beyond a reasonable doubt, as the case may be. Burden of proof is synonymous with "burden of persuasion."

      (e) "Burden of producing evidence" means the obligation of a party to introduce evidence when necessary to avoid the risk of a directed verdict or peremptory finding against him or her on a material issue of fact.

      (f) "Conduct" includes all active and passive behavior, both verbal and nonverbal.

      (g) "The hearing" unless some other is indicated by the context of the rule where the term is used, means the hearing at which the question under a rule is raised, and not some earlier or later hearing.

      (h) "Finding of fact" means the determination from proof or judicial notice of the existence of a fact as a basis for a ruling on evidence. A ruling implies a supporting finding of fact.

      (i) "Guardian" means guardian as defined by K.S.A. 77-201 (32nd) and also includes the person, committee, or other representative authorized by the law of any other jurisdiction to protect the person of any individual under disability imposed by law.

      (j) "Judge" means member or members or representative or representatives of a court conducting a trial or hearing at which evidence is introduced.

      (k) "Trier of fact" includes a jury, or a judge when he or she is trying an issue of fact other than one relating to the admissibility of evidence.

      (l) "Verbal" includes both oral and written words.

      (m) "Writing" means handwriting, typewriting, printing, photostating, photographing and every other means of recording upon any tangible thing any form or communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof.

      (n) "Conservator" means conservator as defined by K.S.A. 77-201 (34th) and also includes the person, committee, or other representative authorized by the law of any other jurisdiction to protect the property or estate of any individual under disability imposed by law.

      History: L. 1963, ch. 303, 60-401; L. 1965, ch. 354, § 6; Jan. 1, 1966.

60-409. Facts which must or may be judicially noticed. (a) Judicial notice shall be taken without request by a party, of the common law, constitutions and public statutes in force in every state, territory and jurisdiction of the United States, and of such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute.

      (b) Judicial notice may be taken without request by a party, of (1) private acts and resolutions of the Congress of the United States and of the legislature of this state, and duly enacted ordinances and duly published regulations of governmental subdivisions or agencies of this state, and (2) the laws of foreign countries and (3) such facts as are so generally known or of such common notoriety within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute, and (4) specific facts and propositions of generalized knowledge which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.

      (c) Judicial notice shall be taken of each matter specified in subsection (b) of this section if a party requests it and (1) furnishes the judge sufficient information to enable him or her properly to comply with the request and (2) has given each adverse party such notice as the judge may require to enable the adverse party to prepare to meet the request.

      History: L. 1963, ch. 303, 60-409; Jan. 1, 1964.

60-420. Evidence generally affecting credibility. Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility.

      History: L. 1963, ch. 303, 60-420; Jan. 1, 1964.

60-421. Limitations on evidence of conviction of crime as affecting credibility. Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his or her credibility. If the witness be the accused in a criminal proceeding, no evidence of his or her conviction of a crime shall be admissible for the sole purpose of impairing his or her credibility unless the witness has first introduced evidence admissible solely for the purpose of supporting his or her credibility.

      History: L. 1963, ch. 303, 60-421; Jan. 1, 1964.

60-422. Further limitations on admissibility of evidence affecting credibility. As affecting the credibility of a witness (a) in examining the witness as to a statement made by him or her in writing inconsistent with any part of his or her testimony it shall not be necessary to show or read to the witness any part of the writing provided that if the judge deems it feasible the time and place of the writing and the name of the person addressed, if any, shall be indicated to the witness; (b) extrinsic evidence of prior contradictory statements, whether oral or written, made by the witness, may in the discretion of the judge be excluded unless the witness was so examined while testifying as to give him or her an opportunity to identify, explain or deny the statement; (c) evidence of traits of his or her character other than honesty or veracity or their opposites, shall be inadmissible; (d) evidence of specific instances of his or her conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible.

      History: L. 1963, ch. 303, 60-422; Jan. 1, 1964.

60-423. Privilege of accused. (a) Every person has in any criminal action in which he or she is an accused a privilege not to be called as a witness and not to testify.

      (b) An accused in a criminal action has a privilege to prevent his or her spouse from testifying in such action with respect to any confidential communication had or made between them while they were husband and wife, excepting only (1) in an action in which the accused is charged with (i) a crime involving the marriage relation, or (ii) a crime against the person or property of the other spouse or the child of either spouse, or (iii) a desertion of the other spouse or a child of either spouse, or (2) as to the communication, in an action in which the accused offers evidence of a communication between himself or herself and his or her spouse.

      (c) An accused in a criminal action has no privilege to refuse, when ordered by the judge, to present his or her person for identification or do any act in the presence of the judge or the trier of the facts, except to refuse to be a witness against himself or herself.

      History: L. 1963, ch. 303, 60-423; Jan. 1, 1964.

60-427. Physician-patient privilege.

           (a) As used in this section:

           (1) ‘‘Patient’’ means a person who, for the sole purpose of securing preventive, palliative, or curative treatment, or a diagnosis preliminary to such treatment, of such person’s physical or mental condition, consults a physician, or submits to an examination by a physician.

           (2) ‘‘Physician’’ means a person licensed or reasonably believed by the patient to be licensed to practice medicine or one of the healing arts as defined in K.S.A. 65-2802, and amendments thereto, in the state or jurisdiction in which the consultation or examination takes place.

           (3) ‘‘Holder of the privilege’’ means the patient while alive and not under guardianship or conservatorship or the guardian or conservator of the patient, or the personal representative of a deceased patient.

           (4) ‘‘Confidential communication between physician and patient’’ means such information transmitted between physician and patient, including information obtained by an examination of the patient, as is transmitted in confidence and by a means which, so far as the patient is aware, discloses the information to no third persons other than those reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it is transmitted.

           (b) Except as provided by subsections (c), (d), (e) and (f), a person, whether or not a party, has a privilege in a civil action or in a prosecution for a misdemeanor, other than a prosecution for a violation of K.S.A. 8-1025, 8- 2,144 8-1567, and amendments thereto, or a city ordinance or county resolution which prohibits the acts prohibited by those statutes, to refuse to disclose, and to prevent a witness from disclosing, a communication, if the person claims the privilege and the judge finds that:

           (1) The communication was a confidential communication between patient and physician;

           (2) the patient or the physician reasonably believed the communication necessary or helpful to enable the physician to make a diagnosis of the condition of the patient or to prescribe or render treatment therefor;

           (3) the witness

           (i) is the holder of the privilege,

           (ii) at the time of the communication was the physician or a person to whom disclosure was made because reasonably necessary for the transmission of the communication or for the accomplishment of the purpose for which it was transmitted or

           (iii) is any other person who obtained knowledge or possession of the communication as the result of an intentional breach of the physician’s duty of nondisclosure by the physician or the physician’s agent or servant; and

           (4) the claimant is the holder of the privilege or a person authorized to claim the privilege for the holder of the privilege.

           (c) There is no privilege under this section as to any relevant communication between the patient and the patient’s physician:

           (1) Upon an issue of the patient’s condition in an action to commit the patient or otherwise place the patient under the control of another or others because of alleged incapacity or mental illness, in an action in which the patient seeks to establish the patient’s competence or in an action to recover damages on account of conduct of the patient which constitutes a criminal offense other than a misdemeanor;

           (2) upon an issue as to the validity of a document as a will of the patient; or

           (3) upon an issue between parties claiming by testate or intestate succession from a deceased patient.

           (d) There is no privilege under this section in an action in which the condition of the patient is an element or factor of the claim or defense of the patient or of any party claiming through or under the patient or claiming as a beneficiary of the patient through a contract to which the patient is or was a party.

           (e) There is no privilege under this section:

           (1) As to blood drawn at the request of a law enforcement officer pursuant to K.S.A. 8-1001, and amendments thereto; and

           (2) as to information which the physician or the patient is required to report to a public official or as to information required to be recorded in a public office, unless the statute requiring the report or record specifically provides that the information shall not be disclosed.

           (f) No person has a privilege under this section if the judge finds that sufficient evidence, aside from the communication has been introduced to warrant a finding that the services of the physician were sought or obtained to enable or aid anyone to commit or to plan to commit a crime or a tort, or to escape detection or apprehension after the commission of a crime or a tort.

           (g) A privilege under this section as to a communication is terminated if the judge finds that any person while a holder of the privilege has caused the physician or any agent or servant of the physician to testify in any action to any matter of which the physician or the physician’s agent or servant gained knowledge through the communication.

           (h) Providing false information to a physician for the purpose of obtaining a prescription-only drug shall not be a confidential communication between physician and patient and no person shall have a privilege in any prosecution for unlawfully obtaining or distributing a prescription-only drug under K.S.A. 2011 Supp. 21-5708, and amendments thereto.

History: L. 1963, ch. 303, 60-427; L. 1965, ch. 354, § 8; L. 1988, ch. 210, § 1; L. 1992, ch. 99, § 2; L. 2009, ch. 32, § 52; L. 2011, ch. 105, § 30; L. 2012, ch. 172, § 60; July 1.

60-428. Marital privilege, confidential communications. (a) General rule. Subject to K.S.A. 60-437 and except as otherwise provided in subsections (b) and (c) of this section, a spouse who transmitted to the other the information which constitutes the communication, has a privilege during the marital relationship which he or she may claim whether or not a party to the action, to refuse to disclose and to prevent the other from disclosing communications found by the judge to have been had or made in confidence between them while husband and wife. The other spouse or either his or her guardian or conservator may claim the privilege on behalf of the spouse having the privilege.

      (b) Exceptions. Neither spouse may claim such privilege (1) in an action by one spouse against the other spouse, or (2) in an action for damages for the alienation of the affections of the other, or for criminal conversation with the other, or (3) in a criminal action in which one of them is charged with a crime against the person or property of the other or of a child of either, or a crime against the person or property of a third person committed in the course of committing a crime against the other, or bigamy or adultery, or desertion of the other or of a child of either, or (4) in a criminal action in which the accused offers evidence of a communication between him or her and his or her spouse, or (5) if the judge finds that sufficient evidence, aside from the communication, has been introduced to warrant a finding that the communication was made, in whole or in part, to enable or aid anyone to commit or to plan to commit a crime or a tort.

      (c) Termination. A spouse who would otherwise have a privilege under this section has no such privilege if the judge finds that such spouse while the holder of the privilege testified or caused another to testify in any action to any communication between the spouses upon the same subject matter.

      History: L. 1963, ch. 303, 60-428; L. 1965, ch. 354, § 9; Jan. 1, 1966.

60-436. Identity of informer. A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this state or of the United States to a representative of the state or the United States or a governmental division thereof, charged with the duty of enforcing that provision, or to a member of a crime stoppers chapter recognized by the Kansas state crime stoppers organization, and evidence thereof is inadmissible, unless the judge finds that: (a) the identity of the person furnishing the information has already been otherwise disclosed; or (b) disclosure of such person's identity is essential to assure a fair determination of the issues. The privilege extends to documenting records as well as testimony.

      History: L. 1963, ch. 303, 60-436; L. 1994, ch. 326, § 1; July 1.

60-437. Waiver of privilege by contract or previous disclosure. A person who would otherwise have a privilege to refuse to disclose or to prevent another from disclosing a specified matter has no such privilege with respect to that matter if the judge finds that such person or any other person while the holder of the privilege has (a) contracted with a party against whom the privilege is claimed that he or she would not claim the privilege or, (b) without coercion, or without any trickery, deception, or fraud practiced against him or her, and with knowledge of the privilege, made disclosure of any part of the matter or consented to such a disclosure made by anyone.

      History: L. 1963, ch. 303, 60-437; Jan. 1, 1964.

60-439. Reference to exercise of privilege; presumption and adverse inference not permitted. If a privilege is exercised not to testify or to prevent another from testifying, either in the action or with respect to particular matters, or to refuse to disclose or to prevent another from disclosing any matter, the judge and counsel may not comment thereon, no presumption shall arise with respect to the exercise of the privilege, and the trier of fact may not draw any adverse inference therefrom. In those jury cases wherein the right to exercise a privilege, as herein provided, may be misunderstood and unfavorable inferences drawn by the trier of the fact, or may be impaired in the particular case, the court, at the request of the party exercising the privilege, may instruct the jury in support of such privilege.

      History: L. 1963, ch. 303, 60-439; L. 1967, ch. 323, § 1; July 1.

60-445. Discretion of judge to exclude admissible evidence. Except as in this article otherwise provided, the judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.

      History: L. 1963, ch. 303, 60-445; Jan. 1, 1964

60-446. Character -- manner of proof. When a person's character or a trait of his or her character is in issue, it may be proved by testimony in the form of opinion, evidence of reputation, or evidence of specific instances of the person's conduct, subject, however, to the limitations of K.S.A. 60-447 and 60-448.

      History: L. 1963, ch. 303, 60-446; Jan. 1, 1964.

60-447. Character trait as proof of conduct. Subject to K.S.A. 60-448 when a trait of a person's character is relevant as tending to prove conduct on a specified occasion, such trait may be proved in the same manner as provided by K.S.A. 60-446, except that (a) evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible, and (b) in a criminal action evidence of a trait of an accused's character as tending to prove guilt or innocence of the offense charged, (i) may not be excluded by the judge under K.S.A. 60-445 if offered by the accused to prove innocence, and (ii) if offered by the prosecution to prove guilt, may be admitted only after the accused has introduced evidence of his or her good character.

      History: L. 1963, ch. 303, 60-447; Jan. 1, 1964.

60-448. Character trait for care or skill. Evidence of a trait of a person's character with respect to care or skill is inadmissible as tending to prove the quality of his or her conduct on a specified occasion.

      History: L. 1963, ch. 303, 60-448; Jan. 1, 1964.

60-449. Habit or custom to prove specific behavior. Evidence of habit or custom is relevant to an issue of behavior on a specified occasion, but is admissible on that issue only as tending to prove that the behavior on such occasion conformed to the habit or custom.

      History: L. 1963, ch. 303, 60-449; Jan. 1, 1964.

60-450. Opinion and specific instances of behavior to prove habit or custom. Testimony in the form of opinion is admissible on the issue of habit or custom. Evidence of specific instances of behavior is admissible to prove habit or custom if the evidence is of a sufficient number of such instances to warrant a finding of such habit or custom.

      History: L. 1963, ch. 303, 60-450; Jan. 1, 1964.

60-451. Subsequent remedial conduct. When after the occurrence of an event remedial or precautionary measures are taken, which, if taken previously would have tended to make the event less likely to occur, evidence of such subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.

      History: L. 1963, ch. 303, 60-451; Jan. 1, 1964.

60-452. Offer to compromise and the like, not evidence of liability. Evidence that a person has, in compromise or from humanitarian motives furnished or offered or promised to furnish money, or any other thing, act or service to another who has sustained or claims to have sustained loss or damage, is inadmissible to prove his or her liability for the loss or damage of any part of it. This section shall not affect the admissibility of evidence (a) of partial satisfaction of an asserted claim on demand without questioning its validity, as tending to prove the validity of the claim, or (b) of a debtor's payment or promise to pay all or a part of his or her pre-existing debt as tending to prove the creation of a new duty on his or her part, or a revival of his or her pre-existing duty.

      History: L. 1963, ch. 303, 60-452; Jan. 1, 1964.

60-455. Other crimes or civil wrongs.

           (a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her such person’s disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but,.

           (b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto,such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

           (c) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, in any criminal action other than a criminal action in which the defendant is accused of a sex offense under articles 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto, such evidence is admissible to show the modus operandi or general method used by a defendant to perpetrate similar but totally unrelated crimes when the method of committing the prior acts is so similar to that utilized in the current case before the court that it is reasonable to conclude the same individual committed both acts.

(d) Except as provided in K.S.A. 60-445, and amendments thereto, in a criminal action in which the defendant is accused of a sex offense under articles 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto, evidence of the defendant’s commission of another act or offense of sexual misconduct is admissible, and may be considered for its bearing on any matter to which it is relevant and probative.

(e) In a criminal action in which the prosecution intends to offer evidence under this rule, the prosecuting attorney shall disclose the evidence to the defendant, including statements of witnesses, at least 10 days before the scheduled date of trial or at such later time as the court may allow for good cause.

           (f) This rule shall not be construed to limit the admission or consideration of evidence under any other rule or to limit the admissibility of the evidence of other crimes or civil wrongs in a criminal action under a criminal statute other than in articles 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto.

           (g) As used in this section, an ‘‘act or offense of sexual misconduct’’ includes:

           (1) Any conduct proscribed by article 35 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto;

           (2) the sexual gratification component of aggravated trafficking, as described in subsection (a)(1)(B) and (a)(2) of K.S.A. 21-3447, and amendments thereto;

           (3) exposing another to a life threatening communicable disease, as described in subsection (a)(1) of K.S.A. 21-3435, and amendments thereto;

           (4) incest, as described in K.S.A. 21-3602, and amendments thereto;

           (5) aggravated incest, as described in K.S.A. 21-3603, and amendments thereto;

           (6) contact, without consent, between any part of the defendant’s body or an object and the genitals, mouth or anus of the victim;

           (7) contact, without consent, between the genitals, mouth or anus of the defendant and any part of the victim’s body;

           (8) deriving sexual pleasure or gratification from the infliction of death, bodily injury or physical pain to the victim;

           (9) an attempt, solicitation or conspiracy to engage in conduct described in paragraphs (1) through (8); or

           (10) any federal or other state conviction of an offense, or any violation of a city ordinance or county resolution, that would constitute an offense under article 35 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto, the sexual gratification component of aggravated trafficking, as described in subsection (a)(1)(B) and (a)(2) of K.S.A. 21-3447, and amendments thereto; incest, as described in K.S.A. 21-3602, and amendments thereto; or aggravated incest, as described in K.S.A. 21-3603, and amendments thereto, or involved conduct described in paragraphs (6) through (9).

           (h) If any provisions of this section or the application thereof to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of this section which can be given effect without the invalid provisions or application. To this end the provisions of this section are severable.

History: L. 1963, ch. 303, 60-455; Jan. 1, 1964; L. 2009, ch. 103, § 12, April 30.

  60-456. Testimony in form of opinion. (a) If the witness is not testifying as an expert his or her testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony.

      (b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.

      (c) Unless the judge excludes the testimony he or she shall be deemed to have made the finding requisite to its admission.

      (d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.

      History: L. 1963, ch. 303, 60-456; Jan. 1, 1964.

60-457. Preliminary examination. The judge may require that a witness before testifying in terms of opinion or inference be first examined concerning the data upon which the opinion or inference is founded.

      History: L. 1963, ch. 303, 60-457; Jan. 1, 1964.

  60-458. Hypothesis for expert opinion not necessary. Questions calling for the opinion of an expert witness need not be hypothetical in form unless the judge in his or her discretion so requires, but the witness may state his or her opinion and reasons therefor without first specifying data on which it is based as an hypothesis or otherwise; but upon cross-examination the witness may be required to specify such data.

      History: L. 1963, ch. 303, 60-458; Jan. 1, 1964.

  60-459. Definitions. As used in K.S.A. 60-460, its exceptions and in this section:

      (a) "Statement" means not only an oral or written expression but also nonverbal conduct of a person intended by him or her as a substitute for words in expressing the matter stated.

      (b) "Declarant" is a person who makes a statement.

      (c) "Perceive" means acquire knowledge through one's own senses.

      (d) "Public official" of a state or territory of the United States includes an official of a political subdivision of such state or territory and of a municipality.

      (e) "State" includes the District of Columbia.

      (f) "A business" as used in exception K.S.A. 60-460 (m) shall include every kind of business, profession, occupation, calling or operation of institutions, whether carried on for profit or not.

      (g) "Unavailable as a witness" includes situations where the witness is (1) exempted on the ground of privilege from testifying concerning the matter to which his or her statement is relevant, or (2) disqualified from testifying to the matter, or (3) unable to be present or to testify at the hearing because of death or then existing physical or mental illness, or (4) absent beyond the jurisdiction of the court to compel appearance by its process, or (5) absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts.

      But a witness is not unavailable (1) if the judge finds that his or her exemption, disqualification, inability or absence is due to procurement or wrongdoing of the proponent of his or her statement for the purpose of preventing the witness from attending or testifying, or to the culpable neglect of such party, or (2) if unavailability is claimed under clause (4) of the preceding paragraph and the judge finds that the deposition of the declarant could have been taken by the exercise of reasonable diligence and without undue hardship, and that the probable importance of the testimony is such as to justify the expense of taking such deposition.

      History: L. 1963, ch. 303, 60-459; Jan. 1, 1964.

60-460. Hearsay evidence excluded; exceptions. Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:

      (a) Previous statements of persons present. A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness.

      (b) Affidavits. Affidavits, to the extent admissible by the statutes of this state.

      (c) Depositions and prior testimony. Subject to the same limitations and objections as though the declarant were testifying in person, (1) testimony in the form of a deposition taken in compliance with the law of this state for use as testimony in the trial of the action in which offered or (2) if the judge finds that the declarant is unavailable as a witness at the hearing, testimony given as a witness in another action or in a preliminary hearing or former trial in the same action, or in a deposition taken in compliance with law for use as testimony in the trial of another action, when (A) the testimony is offered against a party who offered it in the party's own behalf on the former occasion or against the successor in interest of such party or (B) the issue is such that the adverse party on the former occasion had the right and opportunity for cross-examination with an interest and motive similar to that which the adverse party has in the action in which the testimony is offered, but the provisions of this subsection (c) shall not apply in criminal actions if it denies to the accused the right to meet the witness face to face.

      (d) Contemporaneous statements and statements admissible on ground of necessity generally. A statement which the judge finds was made (1) while the declarant was perceiving the event or condition which the statement narrates, describes or explains, (2) while the declarant was under the stress of a nervous excitement caused by such perception or (3) if the declarant is unavailable as a witness, by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant's recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.

      (e) Dying declarations. A statement by a person unavailable as a witness because of the person's death if the judge finds that it was made (1) voluntarily and in good faith and (2) while the declarant was conscious of the declarant's impending death and believed that there was no hope of recovery.

      (f) Confessions. In a criminal proceeding as against the accused, a previous statement by the accused relative to the offense charged, but only if the judge finds that the accused (1) when making the statement was conscious and was capable of understanding what the accused said and did and (2) was not induced to make the statement (A) under compulsion or by infliction or threats of infliction of suffering upon the accused or another, or by prolonged interrogation under such circumstances as to render the statement involuntary or (B) by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same.

      (g) Admissions by parties. As against a party, a statement by the person who is the party to the action in the person's individual or a representative capacity and, if the latter, who was acting in such representative capacity in making the statement.

      (h) Authorized and adoptive admissions. As against a party, a statement (1) by a person authorized by the party to make a statement or statements for the party concerning the subject of the statement or (2) of which the party with knowledge of the content thereof has, by words or other conduct, manifested the party's adoption or belief in its truth.

      (i) Vicarious admissions. As against a party, a statement which would be admissible if made by the declarant at the hearing if (1) the statement concerned a matter within the scope of an agency or employment of the declarant for the party and was made before the termination of such relationship, (2) the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination or (3) one of the issues between the party and the proponent of the evidence of the statement is a legal liability of the declarant, and the statement tends to establish that liability.

      (j) Declarations against interest. Subject to the limitations of exception (f), a statement which the judge finds was at the time of the assertion so far contrary to the declarant's pecuniary or proprietary interest or so far subjected the declarant to civil or criminal liability or so far rendered invalid a claim by the declarant against another or created such risk of making the declarant an object of hatred, ridicule or social disapproval in the community that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true.

      (k) Voter's statements. A statement by a voter concerning the voter's qualifications to vote or the fact or content of the voter's vote.

      (l) Statements of physical or mental condition of declarant. Unless the judge finds it was made in bad faith, a statement of the declarant's (1) then existing state of mind, emotion or physical sensation, including statements of intent, plan, motive, design, mental feeling, pain and bodily health, but not including memory or belief to prove the fact remembered or believed, when such a mental or physical condition is in issue or is relevant to prove or explain acts or conduct of the declarant or (2) previous symptoms, pain or physical sensation, made to a physician consulted for treatment or for diagnosis with a view to treatment, and relevant to an issue of declarant's bodily condition.

      (m) Business entries and the like. Writings offered as memoranda or records of acts, conditions or events to prove the facts stated therein, if the judge finds that (1) they were made in the regular course of a business at or about the time of the act, condition or event recorded and (2) the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness.

      If the procedure specified by subsection (b) of K.S.A. 60-245a for providing business records has been complied with and no party has required the personal attendance of a custodian of the records or the production of the original records, the affidavit of the custodian shall be prima facie evidence that the records satisfy the requirements of this subsection.

      (n) Absence of entry in business records. Evidence of the absence of a memorandum or record from the memoranda or records of a business of an asserted act, event or condition, to prove the nonoccurrence of the act or event, or the nonexistence of the condition, if the judge finds that it was the regular course of that business to make such memoranda of all such acts, events or conditions at the time thereof or within a reasonable time thereafter and to preserve them.

      (o) Content of official record. Subject to K.S.A. 60-461 and amendments thereto, (1) if meeting the requirements of authentication under K.S.A. 60-465 and amendments thereto, to prove the content of the record, a writing purporting to be a copy of an official record or of an entry therein or (2) to prove the absence of a record in a specified office, a writing made by the official custodian of the official records of the office, reciting diligent search and failure to find such record.

      (p) Certificate of marriage. Subject to K.S.A. 60-461 and amendments thereto, certificates that the maker thereof performed marriage ceremonies, to prove the truth of the recitals thereof, if the judge finds that (1) the maker of the certificates, at the time and place certified as the times and places of the marriages, was authorized by law to perform marriage ceremonies and (2) the certificate was issued at that time or within a reasonable time thereafter.

      (q) Records of documents affecting an interest in property. Subject to K.S.A. 60-461 and amendments thereto, the official record of a document purporting to establish or affect an interest in property, to prove the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the judge finds that (1) the record is in fact a record of an office of a state or nation or of any governmental subdivision thereof and (2) an applicable statute authorized such a document to be recorded in that office.

      (r) Judgment of previous conviction. Evidence of a final judgment adjudging a person guilty of a felony, to prove any fact essential to sustain the judgment.

      (s) Judgment against persons entitled to indemnity. To prove the wrong of the adverse party and the amount of damages sustained by the judgment creditor, evidence of a final judgment if offered by a judgment debtor in an action in which the debtor seeks to recover partial or total indemnity or exoneration for money paid or liability incurred by the debtor because of the judgment, provided the judge finds that the judgment was rendered for damages sustained by the judgment creditor as a result of the wrong of the adverse party to the present action.

      (t) Judgment determining public interest in land. To prove any fact which was essential to the judgment, evidence of a final judgment determining the interest or lack of interest of the public or of a state or nation or governmental division thereof in land, if offered by a party in an action in which any such fact or such interest or lack of interest is a material matter.

      (u) Statement concerning one's own family history. A statement of a matter concerning a declarant's own birth, marriage, divorce, legitimacy, relationship by blood or marriage, race-ancestry or other similar fact of the declarant's family history, even though the declarant had no means of acquiring personal knowledge of the matter declared, if the judge finds that the declarant is unavailable.

      (v) Statement concerning family history of another. A statement concerning the birth, marriage, divorce, death, legitimacy, race-ancestry, relationship by blood or marriage or other similar fact of the family history of a person other than the declarant if the judge finds that the declarant (1) was related to the other by blood or marriage, or was otherwise so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared, and made the statement as upon information received from the other or from a person related by blood or marriage to the other or as upon repute in the other's family and (2) is unavailable as a witness.

      (w) Statement concerning family history based on statement of another declarant. A statement of a declarant that a statement admissible under exceptions (u) or (v) was made by another declarant, offered as tending to prove the truth of the matter declared by both declarants, if the judge finds that both declarants are unavailable as witnesses.

      (x) Reputation in family concerning family history. Evidence of reputation among members of a family, if the reputation concerns the birth, marriage, divorce, death, legitimacy, race-ancestry or other fact of the family history of a member of the family by blood or marriage.

      (y) Reputation--boundaries, general history, family history. Evidence of reputation in a community as tending to prove the truth of the matter reputed, if the reputation concerns (1) boundaries of or customs affecting, land in the community and the judge finds that the reputation, if any, arose before controversy, (2) an event of general history of the community or of the state or nation of which the community is a part and the judge finds that the event was of importance to the community or (3) the birth, marriage, divorce, death, legitimacy, relationship by blood or marriage, or race-ancestry of a person resident in the community at the time of the reputation, or some other similar fact of the person's family history or of the person's personal status or condition which the judge finds likely to have been the subject of a reliable reputation in that community.

      (z) Reputation as to character. If a trait of a person's character at a specified time is material, evidence of the person's reputation with reference thereto at a relevant time in the community in which the person then resided or in a group with which the person then habitually associated, to prove the truth of the matter reputed.

      (aa) Recitals in documents affecting property. Evidence of a statement relevant to a material matter, contained in a deed of conveyance or a will or other document purporting to affect an interest in property, offered as tending to prove the truth of the matter stated, if the judge finds that (1) the matter stated would be relevant upon an issue as to an interest in the property and (2) the dealings with the property since the statement was made have not been inconsistent with the truth of the statement.

      (bb) Commercial lists and the like. Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical or other published compilation, to prove the truth of any relevant matter so stated, if the judge finds that the compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them.

      (cc) Learned treatises. A published treatise, periodical or pamphlet on a subject of history, science or art, to prove the truth of a matter stated therein, if the judge takes judicial notice, or a witness expert in the subject testifies, that the treatise, periodical or pamphlet is a reliable authority in the subject.

      (dd) Actions involving children. In a criminal proceeding or a proceeding pursuant to the Kansas juvenile justice code or in a proceeding to determine if a child is a child in need of care under the Kansas code for care of children, a statement made by a child, to prove the crime or that a child is a juvenile offender or a child in need of care, if:

      (1) The child is alleged to be a victim of the crime or offense or a child in need of care; and

      (2) the trial judge finds, after a hearing on the matter, that the child is disqualified or unavailable as a witness, the statement is apparently reliable and the child was not induced to make the statement falsely by use of threats or promises.

      If a statement is admitted pursuant to this subsection in a trial to a jury, the trial judge shall instruct the jury that it is for the jury to determine the weight and credit to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, any possible threats or promises that might have been made to the child to obtain the statement and any other relevant factor.

      (ee) Certified motor vehicle certificate of title history. Subject to K.S.A. 60-461, and amendments thereto, a certified motor vehicle certificate of title history prepared by the division of vehicles of the Kansas department of revenue.

      History: L. 1963, ch. 303, 60-460; L. 1982, ch. 246, § 1; L. 1985, ch. 196, § 3; L. 1986, ch. 135, § 3; L. 1988, ch. 211, § 9; L. 1996, ch. 229, § 116; July 1, 1997.

 

60-461. Discretion of judge under exception to exclude evidence.

Any writing admissible under exceptions (o), (p), (q) and (ee) of K.S.A. 60-460, and amendments thereto, shall be received only if the party offering such writing has delivered a copy of it or so much as may relate to the controversy, to each adverse party a reasonable time before trial unless the judge finds that such adverse party has not been unfairly surprised by the failure to deliver such copy.

History: L. 1963, ch. 303, 60-461; L. 1988, ch. 211, § 10; July 1.

 

60-462. Credibility of declarant. Evidence of a statement or other conduct by a declarant inconsistent with a statement received in evidence under an exception to K.S.A. 60-460, is admissible for the purpose of discrediting the declarant, though he or she had no opportunity to deny or explain such inconsistent statement. Any other evidence tending to impair or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness.

      History: L. 1963, ch. 303, 60-462; Jan. 1, 1964.

60-465. Authentication of copies of records. A writing purporting to be a copy of an official record or of an entry therein, meets the requirements of authentication if the judge finds that the writing purports to be published by authority of the nation, state or subdivision thereof, in which the record is kept or evidence has been introduced sufficient to warrant a finding that the writing is a correct copy of the record or entry. Extrinsic evidence of authenticity as a condition precedent to admissibility is not required if: (1) The office in which the record is kept is within this state and the writing is attested as a correct copy of the record or entry by a person purporting to be an officer, or a deputy of an officer, having the legal custody of the record; (2) the office in which the record is kept is within the United States or territory or insular possession subject to the dominion of the United States and the writing is attested to as required in clause (1) and authenticated by seal of the office having custody or, if that office has no seal, by a public officer having a seal and having official duties in the district or political subdivision in which the records are kept who certifies under seal that such officer has custody; or (3) the office in which the record is kept is in a foreign state or country, the writing is attested as required in clause (1) and is accompanied by a certificate that such officer has the custody of the record which certificate may be made by a secretary of an embassy or legation, consul general, consul, vice-consul, or consular agent or by any officer in the foreign service of the United States stationed in the foreign state or country in which the record is kept, and authenticated by the seal of that office.

      History: L. 1963, ch. 303, 60-465; L. 1998, ch. 103, § 1; July 1.

60-465a. Reproductions of original court records deemed same as original record; certified copy as evidence. The photographs, microphotographs or photographic film or prints or reproductions of the original records as authorized in K.S.A. 20-159 and amendments thereto shall be deemed to be an original record for all purposes, and may be used as evidence in all courts or administrative agencies. A copy thereof, certified in writing by the person designated by the chief judge of the judicial district as having custody of such reproduction, may be used as evidence in all courts or administrative agencies.

      History: L. 1977, ch. 104, § 3; L. 1999, ch. 57, § 53; July 1.

60-467. Original document required as evidence; exceptions. (a) As tending to prove the content of a writing, no evidence other than the writing itself is admissible, except as otherwise provided in these rules, unless the judge finds that: (1) If the writing is a telefacsimile communication as defined in subsection (d) and is used by the proponent or opponent as the writing itself, such telefacsimile communication shall be considered as the writing itself; (2) (A) the writing is lost or has been destroyed without fraudulent intent on the part of the proponent, (B) the writing is outside the reach of the court's process and not procurable by the proponent, (C) the opponent, at a time when the writing was under the opponent's control has been notified, expressly or by implication from the pleadings, that it would be needed at the hearing, and on request at the hearing has failed to produce it, (D) the writing is not closely related to the controlling issues and it would be inexpedient to require its production, (E) the writing is an official record, or is a writing affecting property authorized to be recorded and actually recorded in the public records as described in exception (s) of K.S.A. 60-460 and amendments thereto or (F) calculations or summaries of content are called for as a result of an examination by a qualified witness of multiple or voluminous writings, which cannot be conveniently examined in court, but the adverse party shall have had a reasonable opportunity to examine such records before trial, and such writings are present in court for use in cross-examination, or the adverse party has waived their production, or the judge finds that their production is unnecessary.

      (b) If the judge makes one of the findings specified in subsection (a), secondary evidence of the content of the writing is admissible. If evidence is offered by the opponent tending to prove that (1) the asserted writing never existed, (2) a writing produced at the trial is the asserted writing or (3) the secondary evidence does not correctly reflect the content of the asserted writing, the evidence is irrelevant and inadmissible upon the question of admissibility of the secondary evidence but is relevant and admissible upon the issues of the existence and content of the asserted writing to be determined by the trier of fact.

      (c) If the procedure specified by subsection (b) of K.S.A. 60-245a, and amendments thereto, for providing business records has been complied with and no party has required the personal attendance of a custodian of the records or the production of the original records, the copy of the records produced shall not be excluded under subsection (a).

      (d) As used in this section, telefacsimile communication means the use of electronic equipment to send or transfer a copy of an original document via telephone lines.

      History: L. 1963, ch. 303, 60-467; L. 1985, ch. 196, § 4; L. 1989, ch. 177, § 1; July 1.

60-469. Proving content of business and public records. The content of any admissible writing made in the regular course of "a business" as defined by K.S.A. 60-459, and amendments thereto, or in the regular course of duty of any "public official" as defined by K.S.A. 60-459, and amendments thereto, may be proved by a nonerasable optical image reproduction provided that additions, deletions or changes to the original document are not permitted by the technology, or a photostatic, microfilm, microcard, miniature photographic or other photographic copy or reproduction or by an enlargement thereof, when duly authenticated, if it was in the regular course of such business or official activity to make and preserve such copies or reproductions as a part of the records of such business or office. The introduction of such copy, reproduction or enlargement does not preclude admission of the original writing if it is still in existence.

      History: L. 1963, ch. 303, 60-469; L. 1994, ch. 60, § 1; July 1.

60-472. Photographs of property wrongfully taken; use in prosecution, procedure; return of property to owner. In any prosecution for a crime involving the wrongful taking of property, photographs of the property alleged to have been wrongfully taken may be deemed competent evidence of such property and may be admissible in the prosecution to the same extent as if such property had been introduced as evidence. Such photographs may be admitted into evidence if they meet the foundation requirements under the rules of evidence.

      History: L. 1979, ch. 182, § 1; L. 1980, ch. 173, § 1; L. 2005, ch. ___, § 1 (HB 2385); July 1.