K.S.A. Chapter 60.--PROCEDURE, CIVIL

Article 4.--RULES OF EVIDENCE

Current through end of 2019 legislative session

60-401     Definitions.

60-402     Scope of rules.

60-403     Exclusionary rules not to apply to undisputed matter.

60-404     Effect of erroneous admission of evidence.

60-405     Effect of erroneous exclusion of evidence.

60-406     Limited admissibility.

60-407     General abolition of disqualifications and privileges of witnesses, and of exclusionary rules.

60-408     Preliminary inquiry by judge.

60-409     Facts which must or may be judicially noticed.

60-410     Determination as to propriety of judicial notice and tenor of matter noticed.

60-411     Instructing the trier of fact as to matter judicially noticed.

60-412     Judicial notice in proceedings subsequent to trial.

60-413     Definition.

60-414     Effect of presumptions.

60-415     Inconsistent presumptions.

60-416     Burden of proof not relaxed as to some presumptions.

60-417     Disqualification of witness; interpreters.

60-418     Oath.

60-419     Prerequisites of knowledge and experience.

60-420     Evidence generally affecting credibility.

60-421     Limitations on evidence of conviction of crime as affecting credibility.

60-422     Further limitations on admissibility of evidence affecting credibility.

60-423     Privilege of accused.

60-424     Definition of incrimination.

60-425     Self-incrimination.

60-426     Attorney-client privilege.

60-426a   Attorney-client privilege and work product; limitations on waiver.

60-427     Physician-patient privilege.

60-428     Marital privilege, confidential communications.

60-429     Penitential communication privilege.

60-430     Religious belief.

60-431     Political vote.

60-432     Trade secret.

60-433     Secret of state.

60-434     Official information.

60-435     Communication to grand jury.

60-436     Identity of informer.

60-437     Waiver of privilege by contract or previous disclosure.

60-438     Admissibility of disclosure wrongfully compelled.

60-439     Reference to exercise of privilege; presumption and adverse inference not permitted.

60-440     Effect of error in overruling claim of privilege.

60-441     Evidence to test a verdict or indictment.

60-442     Testimony by the judge.

60-443     Testimony by a juror.

60-444     Testimony of jurors not limited except by this article.

60-445     Discretion of judge to exclude admissible evidence.

60-446     Character — manner of proof.

60-447     Character trait as proof of conduct.

60-448     Character trait for care or skill.

60-449     Habit or custom to prove specific behavior.

60-450     Opinion and specific instances of behavior to prove habit or custom.

60-451     Subsequent remedial conduct.

60-452     Offer to compromise and the like, not evidence of liability.

60-452a   Dispute resolution; confidentiality.

60-453     Offer to discount claim, not evidence of invalidity.

60-454     Liability insurance.

60-455     Other crimes or civil wrongs.

60-456     Testimony in form of opinion or inferences.

60-457     Preliminary examination for non-expert witness; pre-trial hearing for expert witness.

60-458     Expert opinion or inference; facts or data relied upon, admissibility.

60-459     Definitions.

60-460     Hearsay evidence excluded; exceptions.

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

60-462     Credibility of declarant.

60-463     Multiple hearsay.

60-464     Authentication required; ancient documents.

60-465     Authentication of copies of records.

60-465a   Reproductions of original court records deemed same as original record; certified copy as evidence.

60-466     Certificate of lack of record.

60-467     Original document required as evidence; exceptions.

60-468     Proof of attested writings.

60-469     Proving content of business and public records.

60-470     Title.

60-472     Photographs of property wrongfully taken.

60-473     Peer support counseling session communication privilege; emergency services personnel, law enforcement personnel and national guard personnel.

60-480     Journalist privilege; definitions.

60-481     Journalist privilege.

60-482     Same; compelled disclosure.

60-483     Same; hearing; disclosure.

60-484     Same; costs and attorney fees.

60-485     Same; rights and privileges in addition to others.


60-401. Definitions.

(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.


60-402. Scope of rules.

        Except to the extent to which they may be relaxed by other procedural rule or statute applicable to the specific situation, the rules set forth in this article shall apply in every proceeding, both criminal and civil, conducted by or under the supervision of a court, in which evidence is produced.

History: L. 1963, ch. 303, 60-402; Jan. 1, 1964.


60-403. Exclusionary rules not to apply to undisputed matter.

        If upon the hearing there is no bona fide dispute between the parties as to a material fact, such fact may be proved by any relevant evidence, and exclusionary rules shall not apply, subject, however, to K.S.A. 60-445 and any valid claim of privilege.

History: L. 1963, ch. 303, 60-403; Jan. 1, 1964.


60-404. Effect of erroneous admission of evidence.

        A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.

History: L. 1963, ch. 303, 60-404; Jan. 1, 1964.


60-405. Effect of erroneous exclusion of evidence.

        A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers.

History: L. 1963, ch. 303, 60-405; Jan. 1, 1964.


60-406. Limited admissibility.

        When relevant evidence is admissible as to one party or for one purpose and is inadmissible as to other parties or for another purpose, the judge upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.

History: L. 1963, ch. 303, 60-406; Jan. 1, 1964.


60-407. General abolition of disqualifications and privileges of witnesses, and of exclusionary rules.

        Except as otherwise provided by statute (a) every person is qualified to be a witness, and (b) no person has a privilege to refuse to be a witness, and (c) no person is disqualified to testify to any matter, and (d) no person has a privilege to refuse to disclose any matter or to produce any object or writing, and (e) no person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any object or writing, and (f) all relevant evidence is admissible.

History: L. 1963, ch. 303, 60-407; Jan. 1, 1964.


60-408. Preliminary inquiry by judge.

        When the qualification of a person to be a witness, or the admissibility of evidence, or the existence of a privilege is stated in this article to be subject to a condition, and the fulfillment of the condition is in issue, the issue is to be determined by the judge, and he or she shall indicate to the parties which one has the burden of producing evidence and the burden of proof on such issue as implied by the section under which the question arises. The judge may hear and determine such matters out of the presence or hearing of the jury, except that on the admissibility of a confession of the accused in a criminal case, the judge, if requested, shall hear and determine the question out of the presence and hearing of the jury. But this section shall not be construed to limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

History: L. 1963, ch. 303, 60-408; Jan. 1, 1964.


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.


60-410. Determination as to propriety of judicial notice and tenor of matter noticed.

(a)   The judge shall afford each party reasonable opportunity to present to him or her information relevant to the propriety of taking judicial notice of a matter or to the tenor of the matter to be noticed.

(b)   In determining the propriety of taking judicial notice of a matter or the tenor thereof, (1) the judge may consult and use any source of pertinent information, whether or not furnished by a party; and (2) no exclusionary rule except a valid claim of privilege shall apply.

(c)    If the information possessed by or readily available to the judge, whether or not furnished by the parties, fails to convince the judge that a matter falls clearly within K.S.A. 60-409, or if it is insufficient to enable him or her to notice the matter judicially, he or she shall decline to take judicial notice thereof.

(d)   In any event the determination either by judicial notice or from evidence of the applicability and the tenor of any matter of common law, constitutional law, or of any statute, private act, resolution, ordinance or regulation falling within K.S.A. 60-409, shall be a matter for the judge and not for the jury.

History: L. 1963, ch. 303, 60-410; Jan. 1, 1964.


60-411. Instructing the trier of fact as to matter judicially noticed.

        If a matter judicially noticed is other than the common law or constitution or public statutes of this state, the judge shall indicate for the record the matter which is judicially noticed and if the matter would otherwise have been for determination by a trier of fact other than the judge, he or she shall instruct the trier of the fact to accept as a fact the matter so noticed.

History: L. 1963, ch. 303, 60-411; Jan. 1, 1964.


60-412. Judicial notice in proceedings subsequent to trial.

(a)   The failure or refusal of the judge to take judicial notice of a matter, or to instruct the trier of fact with respect to the matter, shall not preclude the judge from taking judicial notice of the matter in subsequent proceedings in the action.

(b)   The rulings of the judge under K.S.A. 60-409, 60-410 and 60-411 are subject to review as are other rulings under the provisions of this article.

(c)    The reviewing court in its discretion may take judicial notice of any matter specified in K.S.A. 60-409 whether or not judicially noticed by the judge.

(d)   A judge or a reviewing court taking judicial notice under subsection (a) or (c) of this section of matter not theretofore so noticed in the action shall afford the parties reasonable opportunity to present information relevant to the propriety of taking such judicial notice and to the tenor of the matter to be noticed.

History: L. 1963, ch. 303, 60-412; Jan. 1, 1964.


60-413. Definition.

        A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action.

History: L. 1963, ch. 303, 60-413; Jan. 1, 1964.


60-414. Effect of presumptions.

        Subject to K.S.A. 60-416, and except for presumptions which are conclusive or irrefutable under the rules of law from which they arise, (a) if the facts from which the presumption is derived have any probative value as evidence of the existence of the presumed fact, the presumption continues to exist and the burden of establishing the nonexistence of the presumed fact is upon the party against whom the presumption operates; (b) if the facts from which the presumption arises have no probative value as evidence of the presumed fact, the presumption does not exist when evidence is introduced which would support a finding of the nonexistence of the presumed fact, and the fact which would otherwise be presumed shall be determined from the evidence exactly as if no presumption was or had ever been involved.

History: L. 1963, ch. 303, 60-414; Jan. 1, 1964.


60-415. Inconsistent presumptions.

        If two presumptions arise which are conflicting with each other the judge shall apply the presumption which is founded on the weightier consideration of policy and logic. If there is no such preponderance both presumptions shall be disregarded.

History: L. 1963, ch. 303, 60-415; Jan. 1, 1964.


60-416. Burden of proof not relaxed as to some presumptions.

        A presumption, which by a rule of law may be overcome only by proof beyond a reasonable doubt, or by clear and convincing evidence, shall not be affected by K.S.A. 60-414 or 60-415 and the burden of proof to overcome it continues on the party against whom the presumption operates.

History: L. 1963, ch. 303, 60-416; Jan. 1, 1964.


60-417. Disqualification of witness; interpreters.

A person is disqualified to be a witness if the judge finds that (a) the proposed witness is incapable of expressing himself or herself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him or her, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth. An interpreter is subject to all the provisions of this article relating to witnesses.

History: L. 1963, ch. 303, 60-417; Jan. 1, 1964.


60-418. Oath.

Every witness before testifying shall be required to express his or her purpose to testify by the oath or affirmation required by law.

History: L. 1963, ch. 303, 60-418; Jan. 1, 1964.


60-419. Prerequisites of knowledge and experience.

        As a prerequisite for the testimony of a witness on a relevant or material matter, there must be evidence that he or she has personal knowledge thereof, or experience, training or education if such be required. Such evidence may be by the testimony of the witness himself or herself. The judge may reject the testimony of a witness that the witness perceived a matter if the judge finds that no trier of fact could reasonably believe that the witness did perceive the matter. The judge may receive conditionally the testimony of the witness as to a relevant or material matter, subject to the evidence of knowledge, experience, training or education being later supplied in the course of the trial.

History: L. 1963, ch. 303, 60-419; 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.


60-424. Definition of incrimination.

        A matter will incriminate a person within the meaning of this article if it constitutes, or forms an essential part of, or, taken in connection with other matters disclosed, is a basis for a reasonable inference of such a violation of the laws of this state as to subject the person to liability to punishment therefor, unless he or she has become for any reason permanently immune from punishment for such violation.

History: L. 1963, ch. 303, 60-424; Jan. 1, 1964


60-425. Self-incrimination.

        Subject to K.S.A. 60-423 and 60-437, every natural person has a privilege, which he or she may claim, to refuse to disclose in an action or to a public official of this state or the United States or any other state or any governmental agency or division thereof any matter that will incriminate such person.

History: L. 1963, ch. 303, 60-425; Jan. 1, 1964.


60-426. Attorney-client privilege.

(a)   General rule. Subject to K.S.A. 60-437, and amendments thereto, and except as otherwise provided by subsection (b), communications found by the judge to have been between an attorney and such attorney's client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege: (1) If such client is the witness, to refuse to disclose any such communication; (2) to prevent such client's attorney from disclosing it; and (3) to prevent any other witness from disclosing such communication if it came to the knowledge of such witness (i) in the course of its transmittal between the client and the attorney, (ii) in a manner not reasonably to be anticipated by the client or (iii) as a result of a breach of the attorney-client relationship. The privilege may be claimed by the client in person or by such client's attorney, or if an incapacitated person, by either such person's guardian or conservator, or if deceased, by such person's personal representative.

(b)   Exceptions. Such privileges shall not extend to a communication: (1) If the judge finds that sufficient evidence, aside from the communication, has been introduced to warrant a finding that the legal service was sought or obtained in order to enable or aid the commission or planning of a crime or a tort; (2) relevant to an issue between parties all of whom claim through the client, regardless of whether the respective claims are by testate or intestate succession or by inter vivos transaction; (3) relevant to an issue of breach of duty by the attorney to such attorney's client, or by the client to such client's attorney; (4) relevant to an issue concerning an attested document of which the attorney is an attesting witness; or (5) relevant to a matter of common interest between two or more clients if made by any of them to an attorney whom they have retained in common when offered in an action between any of such clients.

(c)    Definitions. As used in this section:

        (1)   "Client" means a person or corporation or other association that, directly or through an authorized representative, consults an attorney or attorney's representative for the purpose of retaining the attorney or securing legal service or advice from the attorney in a professional capacity; and includes an incapacitated person who, or whose guardian on behalf of the incapacitated person, so consults the attorney or the attorney's representative in behalf of the incapacitated person.

        (2)   "Communication" includes advice given by the attorney in the course of representing the client and includes disclosures of the client to a representative, associate or employee of the attorney incidental to the professional relationship.

        (3)   "Attorney" means a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation the law of which recognizes a privilege against disclosure of confidential communications between client and attorney.

History: L. 1963, ch. 303, 60-426; L. 1965, ch. 354, § 7; L. 2011, ch. 96, § 2; July 1.


60-426a. Attorney-client privilege and work product; limitations on waiver.

        The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.

(a)   Disclosure made in a court or agency proceeding; scope of waiver. When the disclosure is made in a court or agency proceeding and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in any proceeding only if:

        (1)   The waiver is intentional;

        (2)   the disclosed and undisclosed communications or information concern the same subject matter; and

 

        (3)   they ought in fairness be considered together.

(b)   Inadvertent disclosure. When made in a court or agency proceeding, the disclosure does not operate as a waiver in any proceeding if:

        (1)   The disclosure is inadvertent;

        (2)   the holder of the privilege or protection took reasonable steps to prevent disclosure; and

        (3)   the holder promptly took reasonable steps to rectify the error, including, if applicable, following subsection (b)(7)(B) of K.S.A. 60-226, and amendments thereto.

(c)    Disclosure made in a non-Kansas proceeding. When the disclosure is made in a non-Kansas proceeding and is not the subject of a court order concerning waiver, the disclosure does not operate as a waiver in a Kansas proceeding if the disclosure:

        (1)   Would not be a waiver under this section if it had been made in a Kansas proceeding; or

        (2)   is not a waiver under the law of the jurisdiction where the disclosure occurred.

(d)   Controlling effect of a court order. A court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court, in which event the disclosure is also not a waiver in any other proceeding.

(e)    Controlling effect of a party agreement. An agreement on the effect of disclosure in a proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.

(f)    Definitions. As used in this section:

        (1)   "Attorney-client privilege" means the protection that applicable law provides for confidential attorney-client communications.

        (2)   "Work-product protection" means the protection that applicable law provides for tangible material, or its intangible equivalent, prepared in anticipation of litigation or for trial.

History: L. 2011, ch. 96, § 1; July 1.


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- 2,144 or 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; L. 2018, ch. 106, § 33; 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.


60-429. Penitential communication privilege.

(a)   Definitions. As used in this section, (1) the term "duly ordained minister of religion" means a person who has been ordained, in accordance with the ceremonial ritual, or discipline of a church, religious sect, or organization established on the basis of a community of faith and belief, doctrines and practices of a religious character, to preach and to teach the doctrines of such church, sect, or organization and to administer the rites and ceremonies thereof in public worship, and who as his or her regular and customary vocation preaches and teaches the principles of religion and administers the ordinances of public worship as embodied in the creed or principles of such church, sect, or organization; (2) the term "regular minister of religion" means one who as his or her customary vocation preaches and teaches the principles of religion of a church, a religious sect, or organization of which he or she is a member, without having been formally ordained as a minister of religion, and who is recognized by such church, sect, or organization as a regular minister; (3) the term "regular or duly ordained minister of religion" does not include a person who irregularly or incidentally preaches and teaches the principles of religion of a church, religious sect, or organization and does not include any person who may have been duly ordained a minister in accordance with the ceremonial, rite, or discipline of a church, religious sect or organization, but who does not regularly, as a vocation, teach and preach the principles of religion and administer the ordinances of public worship as embodied in the creed or principles of his or her church, sect, or organization; (4) "penitent" means a person who recognizes the existence and the authority of God and who seeks or receives from a regular or duly ordained minister of religion advice or assistance in determining or discharging his or her moral obligations, or in obtaining God's mercy or forgiveness for past culpable conduct; (5) "penitential communication" means any communication between a penitent and a regular or duly ordained minister of religion which the penitent intends shall be kept secret and confidential and which pertains to advice or assistance in determining or discharging the penitent's moral obligations, or to obtaining God's mercy or forgiveness for past culpable conduct.

(b)   Privilege. A person, whether or not a party, has a privilege to refuse to disclose, and to prevent a witness from disclosing a communication if he or she claims the privilege and the judge finds that (1) the communication was a penitential communication and (2) the witness is the penitent or the minister, and (3) the claimant is the penitent, or the minister making the claim on behalf of an absent penitent.

History: L. 1963, ch. 303, 60-429; Jan. 1, 1964.


60-430. Religious belief.

        Every person has a privilege to refuse to disclose his or her theological opinion or religious belief unless his or her adherence or nonadherence to such an opinion or belief is material to an issue in the action other than that of his or her credibility as a witness.

History: L. 1963, ch. 303, 60-430; Jan. 1, 1964.


60-431. Political vote.

        Every person has a privilege to refuse to disclose the tenor of his or her vote at a political election unless the judge finds that the vote was cast illegally.

History: L. 1963, ch. 303, 60-431; Jan. 1, 1964.


60-432. Trade secret.

        The owner of a trade secret has a privilege, which may be claimed by the owner or his or her agent or employee, to refuse to disclose the secret and to prevent other persons from disclosing it if the judge finds that the allowance of the privilege will not tend to conceal fraud or otherwise work injustice.

History: L. 1963, ch. 303, 60-432; Jan. 1, 1964.


60-433. Secret of state.

(a)   As used in this section, "secret of state" means information not open or theretofore officially disclosed to the public involving the public security or concerning the military or naval organization or plans of the United States, or a state or territory, or concerning international relations.

(b)   A witness has a privilege to refuse to disclose a matter on the ground that it is a secret of state, and evidence of the matter is inadmissible, (1) if the judge finds that the matter is a secret of state, or (2) unless the chief officer of the department of government administering the subject matter which the secret concerns has consented that it be disclosed in the action.

History: L. 1963, ch. 303, 60-433; Jan. 1, 1964.


60-434. Official information.

(a)   As used in this section, "official information" means information not open or theretofore officially disclosed to the public relating to internal security of this state or of the United States acquired by a public official of this state or the United States in the course of his or her duty, or transmitted from one such official to another in the course of duty.

(b)   A witness has the privilege to refuse to disclose a matter on the ground that it is official information, and evidence of the matter is inadmissible, if the judge finds that the matter is official information, and (1) disclosure is forbidden by an act of the congress of the United States or a statute of this state, or (2) disclosure of the information in the action will be harmful to the security of the government of which the witness is an officer in a governmental capacity.

History: L. 1963, ch. 303, 60-434; Jan. 1, 1964.


60-435. Communication to grand jury.

        A witness has a privilege to refuse to disclose a communication made to a grand jury by a complainant or witness, and evidence thereof is inadmissible, unless the judge finds (a) the matter which the communication concerned was not within the function of the grand jury to investigate, or (b) the grand jury has finished its investigation, if any, of the matter, and its finding, if any, has lawfully been made public by filing it in court or otherwise, or (c) disclosure should be made in the interests of justice.

History: L. 1963, ch. 303, 60-435; Jan. 1, 1964.


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.


60-438. Admissibility of disclosure wrongfully compelled.

        Evidence of a statement or other disclosure is inadmissible against the holder of the privilege if the judge finds that he or she had and claimed a privilege to refuse to make the disclosure but was nevertheless required to make it.

History: L. 1963, ch. 303, 60-438; 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.


60-440. Effect of error in overruling claim of privilege.

        A party may predicate error on a ruling disallowing a claim of privilege only if such party is the holder of the privilege.

History: L. 1963, ch. 303, 60-440; Jan. 1, 1964.


60-441. Evidence to test a verdict or indictment.

        Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.

History: L. 1963, ch. 303, 60-441; Jan. 1, 1964.


60-442. Testimony by the judge.

        Against the objection of a party, the judge presiding at the trial may not testify in that trial as a witness.

History: L. 1963, ch. 303, 60-442; Jan. 1, 1964.


60-443. Testimony by a juror.

        A member of a jury sworn and empanelled in the trial of an action, may not testify in that trial as a witness.

History: L. 1963, ch. 303, 60-443; Jan. 1, 1964.


60-444. Testimony of jurors not limited except by this article.

        This article shall not be construed to (a) exempt a juror from testifying as a witness to conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict or the indictment, except as expressly limited by K.S.A. 60-441; (b) exempt a grand juror from testifying to testimony or statements of a person appearing before the grand jury, where such testimony or statements are the subject of lawful inquiry in the action in which the juror is called to testify.

History: L. 1963, ch. 303, 60-444; Jan. 1, 1964.


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.


60-452a. Dispute resolution; confidentiality.

(a)   All verbal or written information transmitted between any party to a dispute and a neutral person conducting the proceeding, or the staff of an approved program under K.S.A. 5-501 et seq., and amendments thereto, shall be confidential communications. No admission, representation or statement made in the proceeding shall be admissible as evidence or subject to discovery. A neutral person shall not be subject to process requiring the disclosure of any matter discussed during the proceedings unless all the parties consent to a waiver. Any party and the neutral person or staff of an approved program conducting the proceeding, participating in the proceeding has a privilege in any action to refuse to disclose, and to prevent a witness from disclosing, any communication made in the course of the proceeding. The privilege may be claimed by the party or the neutral person or anyone the party or the neutral person authorizes to claim the privilege.

(b)   The confidentiality and privilege requirements of this section shall not apply to:

        (1)   Information that is reasonably necessary to allow investigation of or action for ethical violations against the neutral person conducting the proceeding or for the defense of the neutral person or staff of an approved program conducting the proceeding in an action against the neutral person or staff of an approved program if the action is filed by a party to the proceeding;

        (2)   any information that the neutral person is required to report under K.S.A. 2018 Supp. 38-2223, and amendments thereto;

        (3)   any information that is reasonably necessary to stop the commission of an ongoing crime or fraud or to prevent the commission of a crime or fraud in the future for which there was an expressed intent to commit such crime or fraud;

        (4)   any information that the neutral person is required to report or communicate under the specific provisions of any statute or in order to comply with orders of the court; or

        (5)   any report to the court that a party has issued a threat of physical violence against a party, a party's dependent or family member, the mediator or an officer or employee of the court with the apparent intention of carrying out such threat.

History: L. 1984, ch. 212, § 1; L. 1996, ch. 129, § 4; L. 1999, ch. 157, § 3; L. 2006, ch. 200, § 106; Jan. 1, 2007.


60-453. Offer to discount claim, not evidence of invalidity.

        Evidence that a person has accepted or offered or promised to accept a sum of money or any other thing, act or service in satisfaction of a claim, is inadmissible to prove the invalidity of the claim or any part of it.

History: L. 1963, ch. 303, 60-453; Jan. 1, 1964.


60-454. Liability insurance.

        Evidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible as tending to prove negligence or other wrongdoing.

History: L. 1963, ch. 303, 60-454; 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 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.

 

(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, prior to their repeal, or articles 54, 55 or 56 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 2018 Supp. 21-6104, 21-6325, 21-6326 or 21-6419 through 21-6422, 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, prior to their repeal, or articles 54, 55 or 56 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 2018 Supp. 21-6104, 21-6325, 21-6326 or 21-6419 through 21-6422, 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, prior to their repeal, or articles 54, 55 or 56 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 2018 Supp. 21-6104, 21-6325, 21-6326 or 21-6419 through 21-6422, 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, prior to their repeal, or article 55 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 2018 Supp. 21-6419 through 21-6422, and amendments thereto;

        (2)   the sexual gratification component of aggravated human trafficking, as described in K.S.A. 21-3447(a)(1)(B) or (a)(2), prior to its repeal, or K.S.A. 2018 Supp. 21-5426(b)(1)(B) or (b)(2), and amendments thereto;

        (3)   exposing another to a life threatening communicable disease, as described in K.S.A. 21-3435(a)(1), prior to its repeal, or K.S.A. 2018 Supp. 21-5424(a)(1), and amendments thereto;

 

        (4)   incest, as described in K.S.A. 21-3602, prior to its repeal, or K.S.A. 2018 Supp. 21-5604(a), and amendments thereto;

        (5)   aggravated incest, as described in K.S.A. 21-3603, prior to its repeal, or K.S.A. 2018 Supp. 21-5604(b), 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, prior to their repeal, or article 55 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 2018 Supp. 21-6419 through 21-6422, and amendments thereto, the sexual gratification component of aggravated human trafficking, as described in K.S.A. 21-3447(a)(1)(B) or (a)(2), prior to its repeal, or K.S.A. 2018 Supp. 21-5426(b)(1)(B) or (b)(2), and amendments thereto; incest, as described in K.S.A. 21-3602, prior to its repeal, or K.S.A. 2018 Supp. 21-5604(a), and amendments thereto; or aggravated incest, as described in K.S.A. 21-3603, prior to its repeal, or K.S.A. 2018 Supp. 21-5604(b), 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; L. 2009, ch. 103, § 12; L. 2011, ch. 30, § 215; L. 2015, ch. 94, § 20; July 1.


60-456. Testimony in form of opinion or inferences.

(a)   If the witness is not testifying as an expert, the testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds: (1) Are rationally based on the perception of the witness; (2) are helpful to a clearer understanding of the testimony of the witness; and (3) are not based on scientific, technical or other specialized knowledge within the scope of subsection (b).

(b)   If scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has reliably applied the principles and methods to the facts of the case.

(c)    Unless the judge excludes the testimony, the judge 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; L. 2014, ch. 84, § 2; July 1.


60-457. Preliminary examination for non-expert witness; pre-trial hearing for expert witness.

(a)   If a witness is not testifying as an expert, the judge may require that a witness before testifying in terms of opinion or inference be first examined concerning the facts or data upon which the opinion or inference is founded.

(b)   If a witness is testifying as an expert, upon motion of a party, the court may hold a pretrial hearing to determine whether the witness qualifies as an expert and whether the witness's testimony satisfies the requirements of subsection (b) of K.S.A. 60-456, and amendments thereto. The court shall allow sufficient time for a hearing. The court shall rule on the qualifications of the witness to testify as an expert and whether or not the testimony satisfies the requirements of subsection (b) of K.S.A. 60-456, and amendments thereto. Such hearing and ruling shall be completed no later than the final pretrial conference contemplated under subsection (d) of K.S.A. 60-216, and amendments thereto.

History: L. 1963, ch. 303, 60-457; L. 2014, ch. 84, § 3; July 1.


60-458. Expert opinion or inference; facts or data relied upon, admissibility.

        The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible into evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that the probative value of such facts or data in assisting the jury to evaluate the expert's opinion substantially outweighs any prejudicial effect.

History: L. 1963, ch. 303, 60-458; L. 2014, ch. 84, § 4; July 1.


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 the exception in subsection (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 K.S.A. 60-245a(b), 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 affidavit or declaration 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; (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; or (3) to prove the absence of a record in the criminal justice information system central repository maintained by the Kansas bureau of investigation pursuant to K.S.A. 22-4705, and amendments thereto, a writing made by a person purporting to be an official custodian of the records of the Kansas bureau of investigation, reciting diligent search of criminal history record information and electronically stored information, as defined in K.S.A. 22-4701, and amendments thereto, 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 the exceptions in subsections (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 revised Kansas juvenile justice code or in a proceeding to determine if a child is a child in need of care under the revised 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; L. 2006, ch. 169, § 115; L. 2007, ch. 195, § 30; L. 2011, ch. 48, § 16; L. 2016, ch. 31, § 3; July 1.


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.


60-463. Multiple hearsay.

        A statement within the scope of an exception to K.S.A. 60-460 shall not be inadmissible on the ground that it includes a statement made by another declarant and is offered to prove the truth of the included statement if such included statement itself meets the requirements of an exception.

History: L. 1963, ch. 303, 60-463; Jan. 1, 1964.


60-464. Authentication required; ancient documents.

        Authentication of a writing is required before it may be received in evidence. Authentication may be by evidence sufficient to sustain a finding of its authenticity or by any other means provided by law. If the judge finds that a writing (1) is at least thirty years old at the time it is offered, and (2) is in such condition as to create no suspicion concerning its authenticity, and (3) at the time of its discovery was in a place in which such a document, if authentic, would be likely to be found, it is sufficiently authenticated.

History: L. 1963, ch. 303, 60-464; 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 this state and the record is attested by a person purporting to be an official custodian of the records of the Kansas bureau of investigation as a correct copy of criminal history record information or electronically stored information, as defined in K.S.A. 22-4701, and amendments thereto, accessed through the criminal justice information system central repository maintained by the Kansas bureau of investigation pursuant to K.S.A. 22-4705, and amendments thereto; (3) 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 paragraph (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 (4) the office in which the record is kept is in a foreign state or country, the writing is attested as required in paragraph (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; L. 2016, ch. 31, § 4; 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.


60-466. Certificate of lack of record.

        A writing admissible under exception (o) (2) of K.S.A. 60-460 is authenticated in the same manner as is provided in K.S.A. 60-465.

History: L. 1963, ch. 303, 60-466; L. 1999, ch. 49, § 1; 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.


60-468. Proof of attested writings.

        When the execution of an attested writing is in issue, whether or not attestation is a statutory requisite of its effective execution, no attester is a necessary witness even though all attesters are available unless the statute requiring attestation specifically provides otherwise.

History: L. 1963, ch. 303, 60-468; Jan. 1, 1964.


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.


60-470. Title.

        The rules contained in this article 4 may be known and cited as the rules of evidence.

History: L. 1963, ch. 303, 60-470; Jan. 1, 1964.


60-472. Photographs of property wrongfully taken.

        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. 172, § 1; July 1.


60-473. Peer support counseling session communication privilege; emergency services personnel , law enforcement personnel and national guard personnel.

(a) For the purposes of this section:

        (1)   "Emergency services personnel" means any employee or volunteer of an emergency services provider who is engaged in providing or supporting firefighting, dispatching services and emergency medical services.

        (2)   "Emergency services provider" means any public employer that employs persons to provide firefighting, dispatching services and emergency medical services.

        (3)   "Employee assistance program" means a program established by a law enforcement agency, emergency services provider or the Kansas national guard, to provide professional counseling or support services to employees of a law enforcement agency, emergency services provider, national guard member or a professional mental health provider associated with a peer support team.

        (4)   "Law enforcement agency" means any public agency that employs law enforcement officers.

        (5)   "Law enforcement personnel" means a law enforcement officer, as defined in K.S.A. 22-2202 or 74-5602, and amendments thereto, an employee or volunteer of a law enforcement agency.

        (6)   "National guard member" means a regularly enlisted, officer or civilian member of the Kansas national guard.

        (7)   "Peer support counseling session" means any session conducted by a peer support specialist that is called or requested in response to a critical incident or traumatic event involving the personnel of the law enforcement agency or emergency services provider or the Kansas national guard.

        (8)   "Peer support specialist" is a person:

                (A)   Designated by a law enforcement agency, emergency services provider, the Kansas national guard, employee assistance program or peer support team leader to lead, moderate or assist in a peer support counseling session;

                (B)   who is a member of a peer support team; and

                (C)   has received training in counseling and providing emotional and moral support to law enforcement officers, emergency services personnel or national guard members who have been involved in emotionally traumatic incidents by reason of their employment.

        (9)   "Peer support team" means a group of peer support specialists serving one or more law enforcement providers or emergency services providers.

(b)   Any communication made by a participant or peer support specialist in a peer support counseling session pursuant to this section, and any oral or written information conveyed in or as the result of the peer support counseling session, are confidential and may not be disclosed by any person participating in the peer support counseling session.

(c)    Any communication relating to a peer support counseling session made confidential under subsection (b) that is made between peer support specialists, between peer support specialists and the supervisors or staff of an employee assistance program, or between the supervisors or staff of an employee assistance program, is confidential and may not be disclosed.

(d)   The provisions of this section apply only to peer support counseling sessions conducted by a peer support specialist.

(e) (1)      The provisions of this section apply to all oral communications, notes, records and reports arising out of a peer support counseling session.

        (2)   Any notes, records or reports arising out of a peer support counseling session shall not be public records and shall not be subject to the open records act, K.S.A. 45-215 et seq., and amendments thereto. The provisions of this paragraph shall not be required to be reviewed by the legislature and shall not expire in accordance with K.S.A. 45-229, and amendments thereto.

(f)    Any communication made by a participant or peer support specialist in a peer support counseling session subject to this section, and any oral or written information conveyed in a peer support counseling session subject to this section, are not admissible in any judicial proceeding, administrative proceeding, arbitration proceeding or other adjudicatory proceeding. Communications and information made confidential under this section shall not be disclosed by the participants in any judicial proceeding, administrative proceeding, arbitration proceeding or other adjudicatory proceeding. The limitations on disclosure imposed by this subsection include disclosure during any discovery conducted as part of an adjudicatory proceeding.

(g)   Nothing in this section limits the discovery or introduction into evidence of knowledge acquired by any law enforcement personnel or emergency services personnel from observation made during the course of employment, or material or information acquired during the course of employment, that is otherwise subject to discovery or introduction into evidence.

        (h)   This section does not apply to any:

        (1)   Threat of suicide or criminal act made by a participant in a peer support counseling session, or any information conveyed in a peer support counseling session relating to a threat of suicide or criminal act;

        (2)   information relating to abuse of spouses, children or the elderly, or other information that is required to be reported by law;

        (3)   admission of criminal conduct;

        (4)   disclosure of testimony by a participant who received peer support counseling services and expressly consented to such disclosure; or

        (5)   disclosure of testimony by the surviving spouse or executor or administrator of the estate of a deceased participant who received peer support counseling services and such surviving spouse or executor or administrator expressly consented to such disclosure.

(i)    This section does not prohibit any communications between peer support specialists who conduct peer support counseling sessions, or any communications between peer support specialists and the supervisors or staff of an employee assistance program.

(j)    This section does not prohibit communications regarding fitness of an employee for duty between an employee assistance program and an employer.

(k)   This section shall be part of and supplemental to article 4 of chapter 60 of the Kansas Statutes Annotated, and amendments thereto.

History: L. 2015, ch. 89, § 3; L. 2019, ch. 42, § 1; July 1.


60-480. Journalist privilege; definitions.

As used in K.S.A. 2018 Supp. 60-480 through 60-485, and amendments thereto:

(a)   "Journalist" means: (1) A publisher, editor, reporter or other person employed by a newspaper, magazine, news wire service, television station or radio station who gathers, receives or processes information for communication to the public; or (2) an online journal in the regular business of newsgathering and disseminating news or information to the public.

(b)   "Information" means any information gathered, received or processed by a journalist, whether or not such information is actually published, and whether or not related information has been disseminated, and includes, but is not limited to, all notes, outtakes, photographs, tapes and other recordings or other data of whatever sort that is gathered by a journalist in the process of gathering, receiving or processing information for communication to the public.

(c)    "Acting as a journalist" means a journalist who is engaged in activities that are part of such journalist's gathering, receiving or processing information for communication to the public.

History: L. 2010, ch. 114, § 1; July 1.

60-481. Journalist privilege.

        Except as provided in K.S.A. 2018 Supp. 60-482, and amendments thereto, a journalist cannot be adjudged in contempt by a judicial, legislative, administrative body or any other body having the power to issue subpoenas, for refusing to disclose, in any state or local proceeding, any information or the source of any such information procured while acting as a journalist.

History: L. 2010, ch. 114, § 2; July 1.


60-482. Same; compelled disclosure.

(a)   A journalist may not be compelled to disclose any previously undisclosed information or the source of any such information procured while acting as a journalist until the party seeking to compel the disclosure establishes by a preponderance of the evidence in district court that the disclosure sought:

        (1)   Is material and relevant to the proceeding for which the disclosure is sought;

        (2)   could not, after a showing of reasonable effort, be obtained by readily available alternative means; and

(3)   is of a compelling interest.

(b)   For purposes of this section, a "compelling interest" is evidence likely to be admissible and has probative value that is likely to outweigh any harm done to the free dissemination of information to the public through the activities of journalists, which includes, but is not limited to:

        (1)   The prevention of a certain miscarriage of justice; or

        (2)   an imminent act that would result in death or great bodily harm.

Interests that are not compelling include, but are not limited to, those of parties whose litigation lacks sufficient grounds, is abusive or is brought in bad faith.

History: L. 2010, ch. 114, § 3; July 1.


60-483. Same; hearing; disclosure.

        The party claiming the privilege and the party seeking to compel disclosure shall be entitled to a hearing. After such hearing, the court may conduct an in camera inspection to determine if such disclosure is admissible. If the court then specifically finds that such disclosure is admissible and that its probative value outweighs any harm to the free dissemination of information to the public through the activities of journalists, then the court shall direct production of such disclosure and such disclosure only.

History: L. 2010, ch. 114, § 4; July 1.


60-484. Same; costs and attorney fees.

        If the court finds that the party seeking to compel disclosure had no reasonable basis to request such disclosure, the court may assess costs and attorney fees against the party seeking to compel disclosure. If the court finds that the party claiming the privilege had no reasonable basis to claim such privilege, the court may assess costs and attorney fees against the party claiming the privilege. If an application for attorney fees is made, the judge shall set forth the reasons for awarding or denying such costs or fees.

History: L. 2010, ch. 114, § 5; July 1.


60-485. Same; rights and privileges in addition to others.

        The rights and privileges provided by this act are in addition to any other rights guaranteed by the constitutions of the United States or the state of Kansas. The provisions of K.S.A. 2018 Supp. 60-480 through 60-485, and amendments thereto, shall not be construed to create or imply any limitation on or to otherwise affect a privilege guaranteed by the constitutions of the United States or the state of Kansas.

History: L. 2010, ch. 114, § 6; July 1.