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60-459. Definitions. As used in K.S.A. 60-460, its exceptions and in this section:

(a) "Statement" means not only an oral or written expression but also nonverbal conduct of a person intended by him or her as a substitute for words in expressing the matter stated.

(b) "Declarant" is a person who makes a statement.

(c) "Perceive" means acquire knowledge through one's own senses.

(d) "Public official" of a state or territory of the United States includes an official of a political subdivision of such state or territory and of a municipality.

(e) "State" includes the District of Columbia.

(f) "A business" as used in exception K.S.A. 60-460 (m) shall include every kind of business, profession, occupation, calling or operation of institutions, whether carried on for profit or not.

(g) "Unavailable as a witness" includes situations where the witness is (1) exempted on the ground of privilege from testifying concerning the matter to which his or her statement is relevant, or (2) disqualified from testifying to the matter, or (3) unable to be present or to testify at the hearing because of death or then existing physical or mental illness, or (4) absent beyond the jurisdiction of the court to compel appearance by its process, or (5) absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts.

But a witness is not unavailable (1) if the judge finds that his or her exemption, disqualification, inability or absence is due to procurement or wrongdoing of the proponent of his or her statement for the purpose of preventing the witness from attending or testifying, or to the culpable neglect of such party, or (2) if unavailability is claimed under clause (4) of the preceding paragraph and the judge finds that the deposition of the declarant could have been taken by the exercise of reasonable diligence and without undue hardship, and that the probable importance of the testimony is such as to justify the expense of taking such deposition.

History: L. 1963, ch. 303, 60-459; January 1, 1964.

Law Review and Bar Journal References:

Subsection (g); survey of law of evidence, Spencer A. Gard, 12 K.L.R. 239, 251 (1963).

"Evidence: The Admissibility of Computer Print-outs in Kansas," Thomas E. Lowman, 8 W.L.J. 330, 336 (1969).

"Lead Column; Admitting Government Findings in Federal Civil Cases," James E. Concannon, Vol. 6, No. 6, J.K.T.L.A. 9, 11 (1983).

"Exceptions to the Sixth Amendment Confrontation Clause: Kansas Clarifies the Child Victim Exception [State v. Chisholm, 245 Kan. 145, 777 P.2d 753 (1989)]," Anthony J. Powell, 29 W.L.J. 652, 658 (1990).

"Evidence for the family lawyer: Intrafamily wiretapping, the Fifth Amendment and other selected topics," Steve Leben, 68 J.K.B.A. No. 3, 24 (1999).

CASE ANNOTATIONS

1. "Statement" as defined hereunder, applied to K.S.A. 60-460(g). State v. Shaw, 195 K. 677, 681, 408 P.2d 650.

2. "Perceived" defined in holding witness an expert. Casey v. Phillips Pipeline Co., 199 K. 538, 546, 431 P.2d 518.

3. Subsection (c) cited; admissibility of opinion or expert testimony discussed. Trimble, Administrator v. Coleman Co., Inc., 200 K. 350, 356, 437 P.2d 219.

4. Subsection (g) cited in permitting testimony of witness at preliminary hearing to be used at trial where "good faith effort" made to locate absent witness for trial. State v. Washington, 206 K. 336, 338, 479 P.2d 833.

5. Subsection (g) applied; witness claiming privilege against self-incrimination is "unavailable as a witness." State v. Oliphant, 210 K. 451, 453, 502 P.2d 626.

6. Declarant's statements in police tape recordings admissible under 60-460(d)(3) where declarant unavailable as a witness. State v. Hill, 211 K. 287, 298, 507 P.2d 342.

7. Applied; error in admission of hearsay; proceeding to terminate parental rights; harmless error. In re Johnson, 214 K. 780, 782, 522 P.2d 330.

8. Subsection (c) referred to; police officer's testimony not admissible as substantive evidence. Smith v. Estate of Hall, 215 K. 262, 267, 524 P.2d 684.

9. Construed with 60-460; transcript testimony of prosecution witness at preliminary hearing allowed. State v. Bey, 217 K. 251, 254, 535 P.2d 881.

10. Subsection (f) mentioned; inadmissible hearsay received in waiver hearing held under 38-808. Reversed. In re Harris, 218 K. 625, 627, 544 P.2d 1403.

11. Subsection (g)(3) applied; no abuse of discretion in allowance of testimony given in former trial of same action. State v. Steward, 219 K. 256, 263, 265, 547 P.2d 773.

12. No error in admission of evidence in prosecution for aggravated burglary; conviction upheld. State v. Alderdice, 221 K. 684, 686, 561 P.2d 845.

13. Paragraph (g) referred to; right of defendant to confront witness; test of unavailability. State v. Davis, 2 K.A.2d 10, 11, 573 P.2d 1124.

14. Sufficiency of proof of the unavailability of a witness is within discretion of trial court. State v. Mims, 222 K. 335, 338, 564 P.2d 531.

15. Reading of preliminary transcripts allowed; finding of unavailability of witness affirmed. State v. Watie, Heard and Heard, 223 K. 337, 339, 340, 574 P.2d 1368.

16. "Perceived" defined in holding witness an expert. Plains Transp. of Kan. v. King, 224 K. 17, 21, 578 P.2d 1095.

17. Witness invoking fifth amendment privilege held to be "unavailable as a witness." State v. Sanders, 224 K. 138, 144, 578 P.2d 702.

18. Proffered evidence as business records exception to hearsay rule held inadmissible; convictions of aggravated battery affirmed. State v. Davis, 2 K.A.2d 698, 587 P.2d 3.

19. Transcript of the testimony of an absent witness was properly admitted since the testimony was given at the preliminary hearing and the defendant's attorney cross-examined the witness; conviction affirmed. State v. Mick, 229 K. 157, 159, 621 P.2d 1006.

20. No error in admitting as evidence unsigned deposition of unavailable witness; conviction of second degree murder affirmed. State v. Staab, 230 K. 329, 335, 635 P.2d 257 (1981).

21. Unavailability as witness considered where former codefendant invoked Fifth Amendment (60-424, 60-425) and prior cross-examination (60-460(c)) possible. State v. Haislip, 237 K. 461, 487, 701 P.2d 909 (1985).

22. Cited; phrase "unavailable as a witness" examined; finding of unavailability within trial court's discretion. State v. Ransom, 239 K. 594, 598, 722 P.2d 540 (1986).

23. Cited; allowing preliminary hearing transcript of testimony into evidence examined where witness unavailable at trial. State v. Ruebke, 240 K. 493, 517, 731 P.2d 842 (1987).

24. Cited; phrase "unavailable as a witness" in 60-460(dd), factors relevant to determination of availability examined. State v. Kuone, 243 K. 218, 224, 757 P.2d 289 (1988).

25. If deposition offered meets one of five conditions in 60-232(a)(3) and is otherwise admissible, availability of deponent not issue. Eferakeya v. Twin City Bank, 13 K.A.2d 197, 198, 206, 766 P.2d 837 (1989).

26. Rules for admission in evidence of declarations against interest (60-460(j)) restated and applied. State v. Jackson, 244 K. 621, 624, 772 P.2d 747 (1989).

27. Finding that child-victim was unavailable as a witness (60-460) one year before trial as error determined. State v. McClanahan, 14 K.A.2d 410, 411, 792 P.2d 355 (1990).

28. Admissibility of nonverbal conduct discussed. State v. Bratt, 250 K. 264, 273, 824 P.2d 983 (1992).

29. Admission of testimony that defendant had on previous occasions physically abused victim examined. State v. Young, 253 K. 28, 36, 852 P.2d 510 (1993).

30. Admissibility of nonverbal conduct by prosecution after defendant elicits unfavorable testimony during cross-examination examined. State v. Wacker, 253 K. 664, 671, 861 P.2d 1272 (1993).

31. Unavailability of witness discussed; prior decisions reviewed. State v. Vaughn, 254 K. 191, 201, 865 P.2d 207 (1993).

32. Extent of reasonable diligence in attempting to locate absent witness examined. State v. Mitchell, 18 K.A.2d 530, 532, 855 P.2d 989 (1993).

33. Whether trial court's abuse of discretion in failure to find witness unavailable was harmless error examined. State v. Mack, 255 K. 21, 33, 871 P.2d 1265 (1994).

34. Whether defense lack of diligence in attempting to locate witness precluded admission of taped statement examined. State v. Johnson, 255 K. 252, 254, 874 P.2d 623 (1994).

35. Whether admission of unavailable witness hearsay testimony was error because of incentive to falsify statement examined. State v. Stafford, 255 K. 807, 811, 878 P.2d 820 (1994).

36. Whether admission of available witness' hearsay testimony which violated defendant's right of confrontation was harmless error examined. State v. Johnson-Howell, 255 K. 928, 936, 881 P.2d 1288 (1994).

37. Trial court properly admitted victim's out-of-court statements regarding defendant's sexual advances as contemporaneous utterance. State v. Sanders, 258 K. 409, 421, 904 P.2d 951 (1995).

38. Trial court's use of witness testimony from preliminary hearing upheld where witness found unavailable. State v. Cook, 259 K. 370, 376, 913 P.2d 97 (1996).

39. No error in admission of unavailable witness' preliminary hearing testimony; finding of unavailability of witness affirmed. State v. Vargas, 260 K. 791, 796, 926 P.2d 223 (1996).

40. Denial of admission of previously transcribed testimony submitted under an unavailable witness claim considered. State v. Plunkett, 261 K. 1024, 1034, 934 P.2d 113 (1997).

41. Prosecution efforts to find witness satisfied reasonable diligence rule; witness declared unavailable. State v. Zamora 263 K. 340, 347, 949 P.2d 621 (1997).

42. Witness invoking Fifth Amendment privilege is "unavailable" as a witness; court properly admitted hearsay statements of witness to police officers. State v. Giles, 27 K.A.2d 340, 4 P.3d 630 (2000).

43. Unavailable witness is one whose proponent does not know and with diligence has been unable to ascertain witness' whereabouts. State v. Rodriguez-Garcia, 27 K.A.2d 439, 8 P.3d 3 (2000).

44. "Unavailable as a witness" discussed and applied. In re J.D.C., 284 K. 155, 163, 159 P.3d 974 (2007).

45. Murder victim was unavailable as witness in murder trial. State v. Murray, 285 K. 503, 534, 174 P.3d 407 (2008).


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