Session of 2023
SENATE BILL No. 72
By Committee on Judiciary
1-19
AN ACT concerning civil procedure; relating to the rules of evidence;
creating a hearsay evidence exception for statements made to
translators; amending K.S.A. 2022 Supp. 60-460 and repealing the
existing section.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 2022 Supp. 60-460 is hereby amended to read as
follows: 60-460. 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 the 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 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
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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.
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(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
following conditions are shown by the testimony of the custodian or other
qualified witness, or by a certification that complies with K.S.A. 60-465(b)
(7) or (8), and amendments thereto: (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.
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(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
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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
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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
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Kansas department of revenue.
(ff) Language conduit rule. A statement made by a party to a
translator without the testimony of the translator unless the judge finds
that the translator had a motive to mislead or distort the statement or that
the translation was substantially inaccurate.
Sec. 2. K.S.A. 2022 Supp. 60-460 is hereby repealed.
Sec. 3. This act shall take effect and be in force from and after its
publication in the statute book.
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