60-460. Hearsay evidence excluded; exceptions.
60-460
60-460. Hearsay evidence excluded;exceptions.Evidence of a statement which is made other than by a witness whiletestifying at the hearing, offered to prove the truth of the matterstated, is hearsay evidence and inadmissible except:
(a) Previous statements of persons present. A statementpreviously made by a person who is present at the hearing and availablefor cross-examination with respect to the statement and its subjectmatter, provided the statement would be admissible if made by declarantwhile testifying as a witness.
(b) Affidavits. Affidavits, to the extent admissible by thestatutes of this state.
(c) Depositions and prior testimony. Subject to the samelimitations and objections as though the declarant were testifying inperson, (1) testimony in the form of a deposition taken in compliancewith the law of this state for use as testimony in the trial of theaction in which offered or (2) if the judge finds that the declarant isunavailable as a witness at the hearing, testimony given as a witness inanother action or in a preliminary hearing or former trial in the sameaction, or in a deposition taken in compliance with law for use astestimony in the trial of another action, when (A) the testimony isoffered against a party who offered it in the party'sown behalf on theformer occasion or against the successor in interest of such party or (B)the issue is such that the adverse party on the former occasion hadthe right and opportunity for cross-examination with an interest andmotive similar to that which the adverse party has in the action inwhich the testimony is offered, but the provisions of this subsection(c) shall not apply in criminal actions if it denies to the accused theright to meet the witness face to face.
(d) Contemporaneous statements and statements admissible on groundof necessity generally. A statement which the judge finds wasmade (1) while the declarant was perceiving the event or condition which thestatement narrates, describes or explains, (2) while the declarant was underthe stress of a nervousexcitement caused by such perception or (3) if the declarant isunavailable as a witness, by thedeclarant at a time when the matter had been recently perceived by thedeclarant and while the declarant's recollection was clear and was made ingood faith prior to the commencement of the action and with no incentiveto falsify or to distort.
(e) Dying declarations. A statement by a person unavailable asa witness because of the person's death if the judge finds that it wasmade (1) voluntarily and in good faith and (2) while the declarant wasconscious of the declarant's impending death and believed that there was nohope of recovery.
(f) Confessions. In a criminal proceeding as against theaccused, a previous statement by the accused relative to the offensecharged, but only if the judge finds that the accused (1) when makingthe statement was conscious and was capable of understanding what the accusedsaid and did and (2)was not induced to make thestatement (A) under compulsion or by infliction or threats of inflictionof suffering upon the accused or another, or by prolonged interrogationunder such circumstances as to render the statement involuntary or (B)by threats or promises concerning action to be taken by a publicofficial with reference to the crime, likely to cause the accused tomake such a statement falsely, and made by a person whom the accusedreasonably believed to have the power or authority to execute the same.
(g) Admissions by parties. As against a party, astatement by the person who is the party to the action in the person'sindividual or a representative capacity and, if the latter, who wasacting in such representative capacity in making the statement.
(h) Authorized and adoptive admissions. As against a party, astatement (1) by a person authorized by the party to make a statement orstatements for the party concerning the subject of thestatement or(2) of which the party with knowledge of the content thereof has, bywords or other conduct, manifested the party's adoption or belief in itstruth.
(i) Vicarious admissions. As against a party, a statement whichwould be admissible if made by the declarant at the hearing if (1) thestatement concerned a matter within the scope of an agency or employmentof the declarant for the party and was made before the termination ofsuch relationship, (2) the party and the declarant were participatingin a plan to commit a crime or a civil wrong and the statement wasrelevant to the plan or its subject matter and was made while the planwas in existence and before its complete execution or other terminationor (3) one of the issues between the party and the proponent of theevidence of the statement is a legal liability of the declarant, and thestatement tends to establish that liability.
(j) Declarations against interest. Subject to the limitationsof exception (f), a statement which the judge finds was at the time ofthe assertion so far contrary to the declarant's pecuniary orproprietary interest or so far subjected the declarant to civil orcriminal liability or so far rendered invalid a claim bythe declarantagainst another or created such risk of making the declarantan object ofhatred, ridicule or social disapproval in the community that areasonable person in the declarant's position would not have made thestatement unless the person believed it to be true.
(k) Voter's statements. A statement by a voter concerning thevoter's qualifications to vote or the fact or content of the voter's vote.
(l) Statements of physical or mental condition ofdeclarant. Unless the judge finds it was made in bad faith, a statementof thedeclarant's (1) then existing state of mind, emotion or physicalsensation, including statements of intent, plan, motive, design, mentalfeeling, pain and bodily health, but not including memory or belief toprove the fact remembered or believed, when such a mental or physicalcondition is in issue or is relevant to prove or explain acts or conductof the declarant or (2) previous symptoms, pain or physical sensation,made to a physician consulted for treatment or for diagnosis with a viewto treatment, and relevant to an issue of declarant's bodily condition.
(m) Business entries and the like. Writings offered asmemoranda or records of acts, conditions or events to prove the factsstated therein, if the judge finds that (1) they were made in the regularcourse of a business at or about the time of the act, condition or eventrecorded and (2) the sources of information from which made and themethod and circumstances of their preparation were such as to indicatetheir trustworthiness.
If the procedure specified by subsection (b) of K.S.A.60-245a for providingbusiness records has been complied with and no party has required thepersonal attendance of a custodian of the records or the production of theoriginal records, the affidavit of the custodian shall be prima facieevidence that the records satisfy the requirements of this subsection.
(n) Absence of entry in business records. Evidence of theabsence of a memorandum or record from the memoranda or records of abusiness of an asserted act, event or condition, to prove thenonoccurrence of the act or event, or the nonexistence of thecondition, if the judge finds that it was the regular course of thatbusiness to make such memoranda of all such acts, events or conditionsat the time thereof or within a reasonable time thereafter and topreserve them.
(o) Content of official record. Subject to K.S.A. 60-461 andamendments thereto, (1)if meeting the requirements of authentication under K.S.A. 60-465 andamendments thereto, toprove the content of the record, a writing purporting to be a copy of anofficial record or of an entry therein or (2) to prove the absence of arecord in a specified office, a writing made by the official custodianof the official records of the office, reciting diligent search andfailure to find such record.
(p) Certificate of marriage. Subject to K.S.A. 60-461 andamendments thereto, certificates that the maker thereof performed marriageceremonies, toprove the truth of the recitals thereof, if the judge finds that (1) themaker of the certificates, at the time and placecertified as the times and places of the marriages, wasauthorized by law to perform marriageceremonies and (2) the certificate was issued at that time or within areasonable time thereafter.
(q) Records of documents affecting an interestin property. Subject to K.S.A. 60-461 and amendments thereto, theofficial record ofa document purporting toestablish or affect an interest in property, to prove the content of theoriginal recorded document and its execution and delivery by each personby 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 ofany governmental subdivision thereof and (2) an applicable statuteauthorized such a document to be recorded in that office.
(r) Judgment of previous conviction. Evidence of a finaljudgment adjudging a person guilty of a felony, to prove any factessential to sustain the judgment.
(s) Judgment against persons entitled to indemnity. To provethe wrong of the adverse party and the amount of damages sustained bythe judgment creditor, evidence of a final judgment if offered by ajudgment debtor in an action in which the debtor seeks to recoverpartial or total indemnity or exoneration for money paid or liabilityincurred by the debtor because of the judgment, provided the judge findsthat the judgment was rendered for damages sustained by the judgmentcreditor as a result of the wrong of the adverse party to the presentaction.
(t) Judgment determining public interest in land. To prove anyfact which was essential to the judgment, evidence of a final judgmentdetermining the interest or lack of interest of the public or of a stateor nation or governmental division thereof in land, if offered by aparty in an action in which any such fact or such interest or lack ofinterest is a material matter.
(u) Statement concerning one's own family history. A statementof a matter concerning a declarant's own birth, marriage, divorce,legitimacy, relationship by blood or marriage, race-ancestry or othersimilar fact of the declarant's family history, even though the declarant hadno means of acquiring personal knowledge of the matter declared, if thejudge finds that the declarant is unavailable.
(v) Statement concerning family history of another. A statementconcerning the birth, marriage, divorce, death, legitimacy,race-ancestry, relationship by blood or marriage or other similar factof the family history of a person other than the declarant if the judgefinds that the declarant (1) was related to the other by blood ormarriage, or was otherwise so intimatelyassociated with the other's family as to be likely to have accurateinformation concerning the matter declared, and made the statement asupon information received from the other or from a person related byblood or marriage to the other or as upon repute in the other's familyand (2) is unavailable as a witness.
(w) Statement concerning family history based on statement ofanother declarant. A statement of a declarant that a statementadmissible under exceptions (u) or (v) was made byanother declarant, offered as tending to prove the truth of the matterdeclared by both declarants, if the judge finds that both declarants areunavailable as witnesses.
(x) Reputation in family concerning family history. Evidence ofreputation among members of a family, if the reputation concerns thebirth, marriage, divorce, death, legitimacy, race-ancestry or other factof 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 provethe truth ofthe matter reputed, if the reputation concerns (1) boundaries of orcustoms affecting, land in the community and the judge finds that thereputation, if any, arose before controversy, (2) an event of general historyof the community or of the state ornation of which the community is a part and the judge finds that theevent was of importance to the community or (3)the birth, marriage, divorce, death, legitimacy, relationship by bloodor marriage, or race-ancestry of a person resident in the community atthe time of the reputation, or some other similar fact ofthe person'sfamily history or of the person's personal status or condition which thejudge finds likely to have been the subject of a reliable reputation inthat community.
(z) Reputation as to character. If a trait of a person'scharacter at a specified time is material, evidence of the person'sreputation with reference thereto at a relevant time in the community inwhich the person then resided or in a group with which the person thenhabitually associated, to prove the truth of the matter reputed.
(aa) Recitals in documents affecting property. Evidence of astatement relevant to a material matter, contained in a deed ofconveyance or a will or other document purporting to affect an interestin 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 anissue as to an interest in the property and (2) the dealings with theproperty since the statement was made have not been inconsistent withthe truth of the statement.
(bb) Commercial lists and the like. Evidence of statements ofmatters of interest to persons engaged in an occupation contained in alist, register, periodical or other published compilation, to prove thetruth of any relevant matter so stated, if the judge finds that thecompilation is published for use by persons engaged in that occupationand is generally used and relied upon by them.
(cc) Learned treatises. A published treatise, periodical orpamphlet on a subject of history, science or art, to prove the truth of amatter stated therein, if the judge takes judicial notice, or a witnessexpert in the subject testifies, that the treatise, periodical orpamphlet is a reliable authority in the subject.
(dd) Actions involving children. In a criminal proceeding or aproceeding pursuant to the revised Kansas juvenile justice code orin aproceeding to determine if a childis a child in need ofcare under the revised Kansas code for care of children, a statementmade by a child,to prove the crime or that a child is ajuvenile offender or a child in need of care, if:
(1) The child is alleged to be a victim of the crime or offenseor a child in need of care; and
(2) the trial judge finds, after a hearing on the matter, that the childis disqualified or unavailable as a witness, the statement is apparentlyreliable and the child was not induced to make the statement falsely byuse of threats or promises.
If a statement is admitted pursuant to this subsection in a trial to ajury, the trial judge shall instruct the jury that it is for the jury todetermine the weight and credit to be given the statement and that, in makingthe determination, it shall consider the age and maturity of the child,the nature of the statement, the circumstances under which the statementwas made, any possible threats or promises that might have been made tothe child to obtain the statement and any other relevant factor.
(ee) Certified motor vehicle certificate oftitle history. Subject to K.S.A. 60-461, and amendments thereto, acertified motor vehiclecertificate of title history prepared by the division of vehicles of theKansas 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; July 1.