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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; January 1, 1964.

Cross References to Related Sections:

Admissibility of evidence, generally, see 60-243, 60-406, 60-407.

Discretion of judge to exclude evidence, see 60-445.

Character in issue, manner of proof, see 60-446.

Character trait as proof of conduct, see 60-447.

Character trait for care or skill, see 60-448.

Law Review and Bar Journal References:

Discussion of criminal procedure in state courts, Frank R. Gray, 34 J.B.A.K. 316, 320 (1965).

"Survey of Kansas Law: Evidence," Spencer A. Gard, 16 K.L.R. 125, 126, 132 (1967).

"Other Vices, Other Crimes: An Evidentiary Dilemma," M. C. Slough, 20 K.L.R. 411, 415 (1972).

"Evidence of Other Crimes in Kansas," Randall K. Rathbun and Chad M. Renn, 17 W.L.J. 98, 102 (1977).

"Survey of Kansas Law: Evidence," Spencer A. Gard, 27 K.L.R. 225, 235 (1979).

"Evidence of Alcohol/Drug Intoxication and Usage," Randall Rathbun, 6 J.K.T.L.A. No. 4, 23 (1983).

"An ounce of Prevention...," Robert W. Parnacott, 68 J.K.B.A. No. 10, 36 (1999).

CASE ANNOTATIONS

1. Statute limits application of 60-420. Taylor v. Maxwell, 197 K. 509, 512, 419 P.2d 822.

2. Admissibility of evidence of bad conduct affecting credibility. State v. Taylor, 198 K. 290, 293, 294, 295, 296, 424 P.2d 612.

3. Limitations on admissibility of evidence affecting credibility considered. Thompson v. Norman, 198 K. 436, 444, 424 P.2d 593.

4. Court rejected testimony for impeachment purposes; no evidence of relation of facts. Bingham v. Hillcrest Bowl, Inc., 199 K. 40, 47, 427 P.2d 591.

5. Construed with provisions of 60-455; admissibility of evidence of prior convictions considered. State v. McCorvey, 199 K. 194, 197, 428 P.2d 762. Modified in part: State v. Roth, 200 K. 677, 682, 683, 438 P.2d 58.

6. Cited in discussing admissibility of evidence of prior convictions. Tucker v. Lower, 200 K. 1, 3, 4, 434 P.2d 320.

7. Improper cross-examination; competency of council questioned; denial of fair trial discussed (dissenting opinion). State v. Wright, 203 K. 54, 59, 453 P.2d 1.

8. Subsection (d) cited in case concerning evidence of injuries resulting from operation of an emergency vehicle. Scogin v. Nugen, 204 K. 568, 576, 464 P.2d 166.

9. When contradictory statements are introduced in evidence for the purpose of impeaching a witness, the presence of the defendant when the contradictory statements were made is not necessary to make the statements admissible, since the purpose of showing them is not to bind the defendant but to impeach the witness. State v. Potts, 205 K. 47, 51, 468 P.2d 74.

10. Where defendant testifies as to prior conviction on direct examination, subject to cross-examination thereon. State v. Pappan, 206 K. 195, 197, 477 P.2d 989.

11. Adulterous behavior and immoral conduct not admissible for purpose of attacking credibility of witness. Staudinger v. Sooner Pipe & Supply Corporation, 208 K. 101, 107, 490 P.2d 619.

12. Defendant charged with procuring abortion; inquiry into premarital sex relations of complaining witness inadmissible. State v. Darling, 208 K. 469, 470, 477, 493 P.2d 216.

13. Attempt by state to admit taped statement for impeachment; no error as court sustained objection at trial. State v. Campbell, 210 K. 265, 283, 500 P.2d 21.

14. Subsection (b) mentioned; unavailable witness; recorded testimony and impeaching statement at former trial properly admitted. State v. Ford, 210 K. 491, 496, 502 P.2d 786.

15. Inadmissible and prejudicial evidence introduced without objection; similar evidence allowable if needed to remove unfair prejudice. Dewey v. Funk, 211 K. 54, 57, 505 P.2d 722.

16. Section contains no provision requiring foundation to use impeaching prior statement; failure to allow impeachment was error. Smith v. Blakey, Administrator, 213 K. 91, 99, 515 P.2d 1062.

17. Cited in determining drug offenses per se do not involve dishonesty or false statement; inadmissible under 60-421 as affecting credibility. State v. Belote, 213 K. 291, 295, 516 P.2d 159.

18. Evidence regarding witness' homosexuality necessary to support defense theory improperly excluded under subsection (c). State v. Reed, 213 K. 557, 561, 516 P.2d 913.

19. Applied; evidence of drug use inadmissible for purpose of discrediting witness. State v. Nix, 215 K. 880, 885, 529 P.2d 147.

20. Evidence of prior conviction of witness for impeachment purpose upheld; 60-421 construed. State v. Laughlin, 216 K. 54, 56, 530 P.2d 1220.

21. Admission of evidence concerning success of state's witness in securing convictions in unrelated case held error. State v. Steger, 216 K. 534, 537, 532 P.2d 1115.

22. Applied; exclusion of evidence of specific instances of prior misconduct of complainant proper. State v. Humphrey, 217 K. 352, 364, 537 P.2d 155.

23. Adjudication of delinquency involving dishonesty or false statement constitutes conviction of crime within meaning of 60-421; admissibility. State v. Deffenbaugh, 217 K. 469, 474, 536 P.2d 1030.

24. Claim of self-incrimination held without merit; conflicting statements of defendants as to whereabouts at time of trial admissible. State v. Donahue, 218 K. 351, 353, 543 P.2d 962.

25. Evidence of wrongdoing where no conviction resulted went solely to credibility; inadmissible. State v. Johnson, 219 K. 847, 852, 549 P.2d 1370.

26. No abuse of discretion by trial court in determining extent and limitation on extrinsic evidence; tests. State v. Hall, 220 K. 712, 716, 556 P.2d 413.

27. Testimony of one specific past instance of an alleged altercation properly excluded. State v. Woods, 222 K. 179, 187, 563 P.2d 1061.

28. Evidence offered for sole purpose of attacking credibility of witness inadmissible. State v. Smallwood, 223 K. 320, 326, 327, 574 P.2d 1361.

29. Prejudicial error in limiting rebuttal evidence on collateral issues; new trial ordered. State v. Nixon, 223 K. 788, 792, 576 P.2d 691.

30. Admission of evidence concerning defendant's intoxication at time of accident upheld; comparative negligence action. Miles v. West, 224 K. 284, 288, 580 P.2d 876.

31. Conviction of aggravated robbery and other crimes reversed; exclusion of prior written inconsistent statement prejudicial error. State v. Murrell, 224 K. 689, 692, 693, 585 P.2d 1017.

32. Statute held inapplicable; no error in allowing memoranda to refresh recollection of witness. State v. Wright, 4 K.A.2d 196, 199, 603 P.2d 1034.

33. Prior ill treatment or threats toward wife is admissible evidence. State v. Wood, 230 K. 477, 479, 638 P.2d 908 (1982).

34. Trial court did not abuse discretion or commit error for refusing to play tapes to jury of witness's inconsistent and contradictory statements. State v. Schlicher, 230 K. 482, 492, 493, 639 P.2d 467 (1982).

35. Appeal from aggravated sodomy conviction; no error in not admitting evidence of ten-year old victim's consent or morality. State v. Aldrich, 232 K. 783, 784, 658 P.2d 1027 (1983).

36. Where defense had ample opportunity to address inconsistencies between officers' testimony and written reports, no abuse of discretion in excluding them. State v. Heiskell, 8 K.A.2d 667, 675, 666 P.2d 207 (1983).

37. Extrinsic evidence of prior contradictory statements admissible where witness has opportunity to identify, explain or deny. State v. Hobson, 234 K. 133, 148, 671 P.2d 1365 (1983).

38. Evidence showing procedures used by defendant doctor in treating another has nothing to do with credibility. Cleveland v. Wong, 237 K. 410, 419, 420, 701 P.2d 1301 (1985).

39. Due process not violated where defendant made different statement at trial and prosecutor impeached him with prior inconsistent statement. State v. Falke, 237 K. 668, 682, 703 P.2d 1362 (1985).

40. Where impeachment questions and responses assumed improper, error harmless if substantial rights not prejudiced. Hagedorn v. Stormont-Vail Regional Med. Center, 238 K. 691, 700, 701, 715 P.2d 2 (1986).

41. Compared with 60-420, where court prejudicially excluded evidence which put accomplice's credibility in doubt. State v. Davis, 237 K. 155, 160, 697 P.2d 1321 (1985).

42. Reversible error in excluding testimony proffered by appellant for purpose of impeaching credibility of a state's witness. State v. Macomber, 241 K. 154, 158, 159, 734 P.2d 1148 (1987).

43. Cited; exclusion of inconsistent statement in newspaper article as hearsay examined. State v. Hunter, 241 K. 629, 637, 740 P.2d 559 (1987).

44. Cited; finding that witness unable or unwilling to abide by oath as not permissible basis for excluding expert testimony examined. Jones v. Bordman, 243 K. 444, 458, 759 P.2d 953 (1988).

45. Under certain circumstances evidentiary restraints herein must yield to defendant's constitutional right of cross-examination. State v. Barber, 13 K.A.2d 224, 227, 766 P.2d 1288 (1989).

46. Purpose of statute reviewed; soundness of discretion used by trial court examined. State v. Osby, 246 K. 621, 793 P.2d 243 (1990).

47. Admission of evidence that defense witness shared jail cell with defendant, reason for being in jail examined. State v. Wesson, 247 K. 639, 651, 802 P.2d 574 (1990).

48. Attack on witness' credibility with evidence of traits for honesty and veracity permitted only by opinion or reputation evidence. Herbstreith v. de Bakker, 249 K. 67, 76, 815 P.2d 102 (1991).

49. Whether court erred by denying defendant the opportunity to cross-examine witness regarding prior bad acts examined. State v. Rowell, 256 K. 200, 210, 883 P.2d 1184 (1994).

50. Trial court admission of testimony that witness had AIDS did not constitute reversible error. State v. Collier, 259 K. 346, 352, 913 P.2d 597 (1996).

51. Admission of evidence of defendant's previous self-assessment of veracity not an abuse of discretion. State v. Webber, 260 K. 263, 278, 918 P.2d 609 (1996).

52. As to credibility of doctor, evidence of public censure for providing false information in unrelated matter inadmissible in malpractice suit. Shirley v. Smith, 261 K. 685, 699, 700, 933 P.2d 651 (1997).

53. Limiting cross-examination concerning diversion for theft to impeach witness character trait of veracity upheld. State v. Sanders, 263 K. 317, 320, 949 P.2d 1084 (1997).

54. Defendant's criminal history inadmissible as evidence of conviction of crime and as improper character evidence absent defendant's credibility being in issue by action of defendant. State v. Smith, 28 K.A.2d 56, 11 P.3d 520 (2000).

55. Impeachment of witness by party calling witness must be based on contradictory, adverse statements not that witness did not testify as expected. State v. Manning, 270 K. 674, 19 P.3d 84 (2001).

56. Prior testimony properly admitted; witness had selective memory loss; prior inconsistent statements could be used to question credibility. State v. Carter, 278 K. 74, 91 P.3d 1162 (2004).

57. When defendant made a different statement at trial, prosecutor could properly impeach him with prior inconsistent statement. State v. Drayton, 285 K. 689, 708, 175 P.3d 861 (2008).

58. Cited; no reversible error in allowing state to play recorded statement after witness excused. State v. Angelo, 287 K. 262, 286, 287, 197 P.3d 337 (2008).

59. Failure to admit certain evidence and limiting defense counsel's cross examination held reversible error. State v. Scott, 39 K.A.2d 49, 56, 57, 59, 177 P.3d 972 (2008).

60. Defendant failed to lay foundation relating to prior inconsistent statement. State v. Herrera, 41 K.A.2d 215, 202 P.3d 68 (2009).

61. Witness credibility character evidence discussed; evidence of specific instances disallowed. State v. Penn, 41 K.A.2d 251, 201 P.3d 752 (2009).

62. Court abused its discretion in excluding defendant's prior inconsistent statements. State v. Stinson, 43 K.A.2d 468, 227 P.3d 11 (2010).

63. State used documents not admitted into evidence in the trial of sexually violent predator case; fair trial not provided. In re Care & Treatment of Ontiberos, 45 K.A.2d 235, 247 P.3d 686 (2011).

64. The trial court was proper in refusing to admit evidence of an accomplice's conviction. State v. Sampson, 297 K. 288, 301 P.3d 276 (2013).

65. Photographic evidence brought by defendant depicting victim performing oral sex on a third party in order to attack victim's credibility was properly excluded. State v. Wetrich, 49 K.A.2d 34, 304 P.3d 346 (2013).

66. Kansas rules of evidence prohibit the introduction of extrinsic evidence on a prior lie, as well as cross-examination on the subject. Siefert v. Unified Gov't of Wyandotte Cnty., 779 F.3d 1141, 1154 (10 th Cir. 2015).


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