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; January 1, 1964.
Law Review and Bar Journal References:
Article concerning reasons for delay in the courts, George S. Reynolds, 12 W.L.J. 12, 16 (1972).
The legal effect of jury answers to special verdict questions under Kansas comparative negligence law, David E. Pierce, 16 W.L.J. 114, 120, 121, 122 (1976).
"Hearsay Explaining Police Actions: The Proper Objection," Russell M. Coombs, 46 J.B.A.K. 157, 165 (1977).
"An ounce of Prevention...," Robert W. Parnacott, 68 J.K.B.A. No. 10, 36 (1999).
"An Analysis of the Admissibility of Expert Opinion Testimony in Kansas State Courts After Kuhn v. Sandoz Pharmaceuticals," James D. Griffin, 71 J.K.B.A. No. 2, 28 (2002).
CASE ANNOTATIONS
1. Section establishes rule for trial procedure when qualification to be witness is subject to condition and fulfillment of same is at issue; competency of witness not at issue. State v. Poulos, 196 Kan. 253, 262, 264, 411 P.2d 694.
2. Admissibility of confession; hearing foundation proof in presence of jury. State v. Jones, 198 Kan. 30, 36, 422 P.2d 888. Modified in part: State v. Milow, 199 Kan. 576, 589, 433 P.2d 538.
3. Confession's admissibility supported by substantial evidence not disturbed on appeal. State v. Brown, 198 Kan. 473, 475, 426 P.2d 129.
4. If request made by defendant, evidence as to admissibility of confession should be heard outside presence of jury. State v. Phinis, 199 Kan. 472, 479, 480, 430 P.2d 251. Modified in part: State v. Milow, 199 Kan. 576, 589, 433 P.2d 538.
5. Trial court must consider totality of circumstances in making determination on voluntariness of confession. State v. Milow, 199 Kan. 576, 589, 433 P.2d 538.
6. Court conducted preliminary inquiry and confession determined to be voluntary. State v. Pittman, 199 Kan. 591, 594, 433 P.2d 550.
7. Procedure for determining admissibility deliberately bypassed by defendant; objection on appeal without merit. State v. Sanders, 202 Kan. 551, 553, 451 P.2d 148.
8. Applied; reasonable cause to believe that vehicle contained contraband; search not unreasonable. State v. Robinson, 203 Kan. 304, 306, 454 P.2d 527.
9. Court did not hear evidence outside presence of jury to determine as a preliminary matter the voluntariness of defendant's confession. Baker v. State, 204 Kan. 607, 615, 616, 464 P.2d 212.
10. Cited in discussing cross-examination of defendant's character witness; preliminary inquiry in absence of jury required, when. State v. Hinton, 206 Kan. 500, 508, 479 P.2d 910.
11. Cited; method of obtaining confession free from constitutional objection. State v. Creekmore, 208 Kan. 933, 934, 495 P.2d 96.
12. Whether judge used proper procedures to determine whether autistic witness using facilitated communication was validly communicating examined. State v. Warden, 257 Kan. 94, 120, 891 P.2d 1074 (1994).
13. Determination of whether a child victim's statement is tainted by the interview techniques under this statute is held proper. State v. Gilliland, 294 Kan. 519, 276 P.3d 165 (2012).
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