Kansas 2023-2024 Regular Session

Kansas Senate Bill SB72 Compare Versions

Only one version of the bill is available at this time.

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1	1	Session of 2023
2	2	SENATE BILL No. 72
3	3	By Committee on Judiciary
4	4	1-19
5	5	AN ACT concerning civil procedure; relating to the rules of evidence;
6	6	creating a hearsay evidence exception for statements made to
7	7	translators; amending K.S.A. 2022 Supp. 60-460 and repealing the
8	8	existing section.
9	9	Be it enacted by the Legislature of the State of Kansas:
10	10	Section 1. K.S.A. 2022 Supp. 60-460 is hereby amended to read as
11	11	follows: 60-460. Evidence of a statement which is made other than by a
12	12	witness while testifying at the hearing, offered to prove the truth of the
13	13	matter stated, is hearsay evidence and inadmissible except:
14	14	(a) Previous statements of persons present. A statement previously
15	15	made by a person who is present at the hearing and available for cross-
16	16	examination with respect to the statement and its subject matter, provided
17	17	the statement would be admissible if made by the declarant while
18	18	testifying as a witness.
19	19	(b) Affidavits. Affidavits, to the extent admissible by the statutes of
20	20	this state.
21	21	(c) Depositions and prior testimony. Subject to the same limitations
22	22	and objections as though the declarant were testifying in person: (1)
23	23	Testimony in the form of a deposition taken in compliance with the law of
24	24	this state for use as testimony in the trial of the action in which offered; or
25	25	(2) if the judge finds that the declarant is unavailable as a witness at the
26	26	hearing, testimony given as a witness in another action or in a preliminary
27	27	hearing or former trial in the same action, or in a deposition taken in
28	28	compliance with law for use as testimony in the trial of another action,
29	29	when: (A) The testimony is offered against a party who offered it in the
30	30	party's own behalf on the former occasion or against the successor in
31	31	interest of such party; or (B) the issue is such that the adverse party on the
32	32	former occasion had the right and opportunity for cross-examination with
33	33	an interest and motive similar to that which the adverse party has in the
34	34	action in which the testimony is offered, but the provisions of this
35	35	subsection shall not apply in criminal actions if it denies to the accused the
36	36	right to meet the witness face to face.
37	37	(d) Contemporaneous statements and statements admissible on
38	38	ground of necessity generally. A statement which the judge finds was
39	39	made: (1) While the declarant was perceiving the event or condition which
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76	76	the statement narrates, describes or explains; (2) while the declarant was
77	77	under the stress of a nervous excitement caused by such perception; or (3)
78	78	if the declarant is unavailable as a witness, by the declarant at a time when
79	79	the matter had been recently perceived by the declarant and while the
80	80	declarant's recollection was clear and was made in good faith prior to the
81	81	commencement of the action and with no incentive to falsify or to distort.
82	82	(e) Dying declarations. A statement by a person unavailable as a
83	83	witness because of the person's death if the judge finds that it was made:
84	84	(1) Voluntarily and in good faith; and (2) while the declarant was
85	85	conscious of the declarant's impending death and believed that there was
86	86	no hope of recovery.
87	87	(f) Confessions. In a criminal proceeding as against the accused, a
88	88	previous statement by the accused relative to the offense charged, but only
89	89	if the judge finds that the accused: (1) When making the statement was
90	90	conscious and was capable of understanding what the accused said and
91	91	did; and (2) was not induced to make the statement: (A) Under compulsion
92	92	or by infliction or threats of infliction of suffering upon the accused or
93	93	another, or by prolonged interrogation under such circumstances as to
94	94	render the statement involuntary; or (B) by threats or promises concerning
95	95	action to be taken by a public official with reference to the crime, likely to
96	96	cause the accused to make such a statement falsely, and made by a person
97	97	whom the accused reasonably believed to have the power or authority to
98	98	execute the same.
99	99	(g) Admissions by parties. As against a party, a statement by the
100	100	person who is the party to the action in the person's individual or a
101	101	representative capacity and, if the latter, who was acting in such
102	102	representative capacity in making the statement.
103	103	(h) Authorized and adoptive admissions. As against a party, a
104	104	statement: (1) By a person authorized by the party to make a statement or
105	105	statements for the party concerning the subject of the statement; or (2) of
106	106	which the party with knowledge of the content thereof has, by words or
107	107	other conduct, manifested the party's adoption or belief in its truth.
108	108	(i) Vicarious admissions. As against a party, a statement which would
109	109	be admissible if made by the declarant at the hearing if: (1) The statement
110	110	concerned a matter within the scope of an agency or employment of the
111	111	declarant for the party and was made before the termination of such
112	112	relationship; (2) the party and the declarant were participating in a plan to
113	113	commit a crime or a civil wrong and the statement was relevant to the plan
114	114	or its subject matter and was made while the plan was in existence and
115	115	before its complete execution or other termination; or (3) one of the issues
116	116	between the party and the proponent of the evidence of the statement is a
117	117	legal liability of the declarant, and the statement tends to establish that
118	118	liability.
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162	162	(j) Declarations against interest. Subject to the limitations of the
163	163	exception in subsection (f), a statement which the judge finds was at the
164	164	time of the assertion so far contrary to the declarant's pecuniary or
165	165	proprietary interest or so far subjected the declarant to civil or criminal
166	166	liability or so far rendered invalid a claim by the declarant against another
167	167	or created such risk of making the declarant an object of hatred, ridicule or
168	168	social disapproval in the community that a reasonable person in the
169	169	declarant's position would not have made the statement unless the person
170	170	believed it to be true.
171	171	(k) Voter's statements. A statement by a voter concerning the voter's
172	172	qualifications to vote or the fact or content of the voter's vote.
173	173	(l) Statements of physical or mental condition of declarant. Unless
174	174	the judge finds it was made in bad faith, a statement of the declarant's: (1)
175	175	Then existing state of mind, emotion or physical sensation, including
176	176	statements of intent, plan, motive, design, mental feeling, pain and bodily
177	177	health, but not including memory or belief to prove the fact remembered or
178	178	believed, when such a mental or physical condition is in issue or is
179	179	relevant to prove or explain acts or conduct of the declarant; or (2)
180	180	previous symptoms, pain or physical sensation, made to a physician
181	181	consulted for treatment or for diagnosis with a view to treatment, and
182	182	relevant to an issue of declarant's bodily condition.
183	183	(m) Business entries and the like. Writings offered as memoranda or
184	184	records of acts, conditions or events to prove the facts stated therein, if the
185	185	following conditions are shown by the testimony of the custodian or other
186	186	qualified witness, or by a certification that complies with K.S.A. 60-465(b)
187	187	(7) or (8), and amendments thereto: (1) They were made in the regular
188	188	course of a business at or about the time of the act, condition or event
189	189	recorded; and (2) the sources of information from which made and the
190	190	method and circumstances of their preparation were such as to indicate
191	191	their trustworthiness.
192	192	If the procedure specified by K.S.A. 60-245a(b), and amendments
193	193	thereto, for providing business records has been complied with and no
194	194	party has required the personal attendance of a custodian of the records or
195	195	the production of the original records, the affidavit or declaration of the
196	196	custodian shall be prima facie evidence that the records satisfy the
197	197	requirements of this subsection.
198	198	(n) Absence of entry in business records. Evidence of the absence of a
199	199	memorandum or record from the memoranda or records of a business of an
200	200	asserted act, event or condition, to prove the nonoccurrence of the act or
201	201	event, or the nonexistence of the condition, if the judge finds that it was
202	202	the regular course of that business to make such memoranda of all such
203	203	acts, events or conditions at the time thereof or within a reasonable time
204	204	thereafter and to preserve them.
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248	248	(o) Content of official record. Subject to K.S.A. 60-461, and
249	249	amendments thereto: (1) If meeting the requirements of authentication
250	250	under K.S.A. 60-465, and amendments thereto, to prove the content of the
251	251	record, a writing purporting to be a copy of an official record or of an entry
252	252	therein; (2) to prove the absence of a record in a specified office, a writing
253	253	made by the official custodian of the official records of the office, reciting
254	254	diligent search and failure to find such record; or (3) to prove the absence
255	255	of a record in the criminal justice information system central repository
256	256	maintained by the Kansas bureau of investigation pursuant to K.S.A. 22-
257	257	4705, and amendments thereto, a writing made by a person purporting to
258	258	be an official custodian of the records of the Kansas bureau of
259	259	investigation, reciting diligent search of criminal history record
260	260	information and electronically stored information, as defined in K.S.A. 22-
261	261	4701, and amendments thereto, and failure to find such record.
262	262	(p) Certificate of marriage. Subject to K.S.A. 60-461, and
263	263	amendments thereto, certificates that the maker thereof performed
264	264	marriage ceremonies, to prove the truth of the recitals thereof, if the judge
265	265	finds that: (1) The maker of the certificates, at the time and place certified
266	266	as the times and places of the marriages, was authorized by law to perform
267	267	marriage ceremonies; and (2) the certificate was issued at that time or
268	268	within a reasonable time thereafter.
269	269	(q) Records of documents affecting an interest in property. Subject to
270	270	K.S.A. 60-461, and amendments thereto, the official record of a document
271	271	purporting to establish or affect an interest in property, to prove the content
272	272	of the original recorded document and its execution and delivery by each
273	273	person by whom it purports to have been executed, if the judge finds that:
274	274	(1) The record is in fact a record of an office of a state or nation or of any
275	275	governmental subdivision thereof; and (2) an applicable statute authorized
276	276	such a document to be recorded in that office.
277	277	(r) Judgment of previous conviction. Evidence of a final judgment
278	278	adjudging a person guilty of a felony, to prove any fact essential to sustain
279	279	the judgment.
280	280	(s) Judgment against persons entitled to indemnity. To prove the
281	281	wrong of the adverse party and the amount of damages sustained by the
282	282	judgment creditor, evidence of a final judgment if offered by a judgment
283	283	debtor in an action in which the debtor seeks to recover partial or total
284	284	indemnity or exoneration for money paid or liability incurred by the debtor
285	285	because of the judgment, provided the judge finds that the judgment was
286	286	rendered for damages sustained by the judgment creditor as a result of the
287	287	wrong of the adverse party to the present action.
288	288	(t) Judgment determining public interest in land. To prove any fact
289	289	which was essential to the judgment, evidence of a final judgment
290	290	determining the interest or lack of interest of the public or of a state or
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334	334	nation or governmental division thereof in land, if offered by a party in an
335	335	action in which any such fact or such interest or lack of interest is a
336	336	material matter.
337	337	(u) Statement concerning one's own family history. A statement of a
338	338	matter concerning a declarant's own birth, marriage, divorce, legitimacy,
339	339	relationship by blood or marriage, race-ancestry or other similar fact of the
340	340	declarant's family history, even though the declarant had no means of
341	341	acquiring personal knowledge of the matter declared, if the judge finds
342	342	that the declarant is unavailable.
343	343	(v) Statement concerning family history of another. A statement
344	344	concerning the birth, marriage, divorce, death, legitimacy, race-ancestry,
345	345	relationship by blood or marriage or other similar fact of the family history
346	346	of a person other than the declarant if the judge finds that the declarant: (1)
347	347	Was related to the other by blood or marriage, or was otherwise so
348	348	intimately associated with the other's family as to be likely to have
349	349	accurate information concerning the matter declared, and made the
350	350	statement as upon information received from the other or from a person
351	351	related by blood or marriage to the other or as upon repute in the other's
352	352	family; and (2) is unavailable as a witness.
353	353	(w) Statement concerning family history based on statement of
354	354	another declarant. A statement of a declarant that a statement admissible
355	355	under the exceptions in subsections (u) or (v) was made by another
356	356	declarant, offered as tending to prove the truth of the matter declared by
357	357	both declarants, if the judge finds that both declarants are unavailable as
358	358	witnesses.
359	359	(x) Reputation in family concerning family history. Evidence of
360	360	reputation among members of a family, if the reputation concerns the birth,
361	361	marriage, divorce, death, legitimacy, race-ancestry or other fact of the
362	362	family history of a member of the family by blood or marriage.
363	363	(y) Reputation—boundaries, general history, family history. Evidence
364	364	of reputation in a community as tending to prove the truth of the matter
365	365	reputed, if the reputation concerns: (1) Boundaries of or customs affecting,
366	366	land in the community and the judge finds that the reputation, if any, arose
367	367	before controversy; (2) an event of general history of the community or of
368	368	the state or nation of which the community is a part and the judge finds
369	369	that the event was of importance to the community; or (3) the birth,
370	370	marriage, divorce, death, legitimacy, relationship by blood or marriage, or
371	371	race-ancestry of a person resident in the community at the time of the
372	372	reputation, or some other similar fact of the person's family history or of
373	373	the person's personal status or condition which the judge finds likely to
374	374	have been the subject of a reliable reputation in that community.
375	375	(z) Reputation as to character. If a trait of a person's character at a
376	376	specified time is material, evidence of the person's reputation with
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420	420	reference thereto at a relevant time in the community in which the person
421	421	then resided or in a group with which the person then habitually
422	422	associated, to prove the truth of the matter reputed.
423	423	(aa) Recitals in documents affecting property. Evidence of a statement
424	424	relevant to a material matter, contained in a deed of conveyance or a will
425	425	or other document purporting to affect an interest in property, offered as
426	426	tending to prove the truth of the matter stated, if the judge finds that: (1)
427	427	The matter stated would be relevant upon an issue as to an interest in the
428	428	property; and (2) the dealings with the property since the statement was
429	429	made have not been inconsistent with the truth of the statement.
430	430	(bb) Commercial lists and the like. Evidence of statements of matters
431	431	of interest to persons engaged in an occupation contained in a list, register,
432	432	periodical or other published compilation, to prove the truth of any
433	433	relevant matter so stated, if the judge finds that the compilation is
434	434	published for use by persons engaged in that occupation and is generally
435	435	used and relied upon by them.
436	436	(cc) Learned treatises. A published treatise, periodical or pamphlet on
437	437	a subject of history, science or art, to prove the truth of a matter stated
438	438	therein, if the judge takes judicial notice, or a witness expert in the subject
439	439	testifies, that the treatise, periodical or pamphlet is a reliable authority in
440	440	the subject.
441	441	(dd) Actions involving children. In a criminal proceeding or a
442	442	proceeding pursuant to the revised Kansas juvenile justice code or in a
443	443	proceeding to determine if a child is a child in need of care under the
444	444	revised Kansas code for care of children, a statement made by a child, to
445	445	prove the crime or that a child is a juvenile offender or a child in need of
446	446	care, if:
447	447	(1) The child is alleged to be a victim of the crime or offense or a
448	448	child in need of care; and
449	449	(2) the trial judge finds, after a hearing on the matter, that the child is
450	450	disqualified or unavailable as a witness, the statement is apparently
451	451	reliable and the child was not induced to make the statement falsely by use
452	452	of threats or promises.
453	453	If a statement is admitted pursuant to this subsection in a trial to a jury,
454	454	the trial judge shall instruct the jury that it is for the jury to determine the
455	455	weight and credit to be given the statement and that, in making the
456	456	determination, it shall consider the age and maturity of the child, the
457	457	nature of the statement, the circumstances under which the statement was
458	458	made, any possible threats or promises that might have been made to the
459	459	child to obtain the statement and any other relevant factor.
460	460	(ee) Certified motor vehicle certificate of title history. Subject to
461	461	K.S.A. 60-461, and amendments thereto, a certified motor vehicle
462	462	certificate of title history prepared by the division of vehicles of the
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506	506	Kansas department of revenue.
507	507	(ff) Language conduit rule. A statement made by a party to a
508	508	translator without the testimony of the translator unless the judge finds
509	509	that the translator had a motive to mislead or distort the statement or that
510	510	the translation was substantially inaccurate.
511	511	Sec. 2. K.S.A. 2022 Supp. 60-460 is hereby repealed.
512	512	Sec. 3. This act shall take effect and be in force from and after its
513	513	publication in the statute book.
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