Printable Format60-243. Testimony of witnesses; evidence. (a) Form and admissibility. At trial, the witness' testimony must be taken in open court, unless otherwise provided by law. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.
(b) Scope of examination and cross-examination. A party may examine any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director or managing agent of a public or private corporation, a partnership or an association that is an adverse party, may examine the witness by leading questions and may contradict and impeach the witness as if the witness had been called by the adverse party. The witness may be contradicted and impeached by the adverse party, but may be cross-examined only on the subject matter of the witness' direct examination.
(c) Record of excluded evidence. In a jury trial, if an objection to a question to a witness is sustained, the examining attorney may make a specific offer of what the examining attorney expects to prove by the witness' answer. The offer must be made out of the jury's hearing. The court may add any further statement that clearly shows the character of the evidence, the form in which it was offered, the objection made and the ruling on the objection. In nonjury trials the same procedure may be followed, except that the court on request must take and report the evidence in full unless it clearly appears that the evidence is not admissible or is privileged.
(d) Evidence on a motion. When a motion relies on facts outside the record, the court may hear the matter on affidavits or on declarations pursuant to K.S.A. 53-601, and amendments thereto, or may hear it wholly or partly on oral testimony or on depositions.
(e) Interpreter. In accordance with K.S.A. 75-4351 through 75-4355d, and amendments thereto, the court may appoint an interpreter of its choosing; fix reasonable compensation to be paid from funds provided by law or, subject to the limitations in K.S.A. 75-4352 and 75-4355b, and amendments thereto, by one or more parties and tax the compensation as costs.
History: L. 1963, ch. 303, 60-243; amended by Supreme Court order dated July 17, 1969; L. 1997, ch. 173, § 23; L. 2010, ch. 135, § 112; July 1.
Cross References to Related Sections:
Amendments of pleadings to conform, see 60-215(b).
Affecting credibility of witness, see 60-420.
Formal exceptions to rulings not necessary, see 60-246.
Harmless error in admission or exclusion disregarded, see 60-261.
Rules of evidence, generally, see 60-401 et seq.
Effect of erroneous exclusion, see 60-405.
Proof of records, see 60-244.
Summary judgment, affidavit on motion for, when, see 60-256.
New trial motion, affidavits, see 60-259.
Hearsay evidence excluded, exceptions, see 60-460.
Admission of evidence in limited actions, see 61-3202.
Law Review and Bar Journal References:
Subsection (d) employed by judge in passing on motion for summary judgment, Marion Beatty, 36 J.B.A.K. 17, 19 (1967).
"Procedure and Defenses Under the Kansas Uniform Reciprocal Enforcement Support Act of 1970," Jack Peggs, 46 J.B.A.K. 233, 235 (1977).
"Survey of Kansas Law: Evidence," Spencer A. Gard, 27 K.L.R. 225, 235 (1979).
"Media Access to Court Proceedings," Carl C. Monk, 50 J.K.B.A. 212, 216 (1981).
"Trial Tactics; Direction Examination," Lawrence Rose, Vol. 6, No. 5, J.K.T.L.A. 25, 26 (1983).
"Trial Techniques in Persuasion in a Medical Malpractice Case," Bradley J. Prochaska, J.K.T.L.A. Vol. XIX, No. 2, 8 (1995).
"Using The Deposition of a Party At Trial," Bryan W. Smith, J.K.T.L.A. Vol. XIX, No. 2, 23, 24 (1995).
"Preserving the Record in Criminal Law Cases—The Offer of Proof," Stephen M. Joseph, J.K.T.L.A. Vol. XXIII, No. 2, 16 (1999).
CASE ANNOTATIONS
1. No error in permitting examination of hostile witnesses by leading questions in criminal action. State v. Collins, 204 Kan. 55, 58, 460 P.2d 573.
2. Subsection (c) mentioned; proffered evidence in first degree robbery case excluded; upheld. State v. Henderson, 205 Kan. 231, 239, 468 P.2d 136.
3. In cross-examination of defendant's character witness, inquiry must be directed to the witness' "hearing" of disparaging rumor as negativing the reputation; no question as to "fact" of the misconduct permissible. State v. Hinton, 206 Kan. 500, 506, 507, 479 P.2d 910.
4. A general superintendent of a construction company, who is in immediate and exclusive control of the part of a construction project which is the subject matter of litigation, is a "managing agent" within the meaning of that phrase as used in subsection (b) hereof. Ballhorst v. Hahner-Foreman-Cale, Inc., 207 Kan. 89, 94, 95, 484 P.2d 38.
5. Not error to permit defense counsel to cross-examine defendant whose deposition was used in plaintiff's case-in-chief. Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44, 48, 510 P.2d 190.
6. Applied; judgment for division of property in divorce action held just and reasonable. Salem v. Salem, 214 Kan. 828, 832, 522 P.2d 336.
7. Erroneous interpretation of statute did not prejudice case; leading question permissible; summary judgment upheld. Essmiller v. Southwestern Bell Telephone Co., 215 Kan. 74, 79, 523 P.2d 371.
8. Failure to comply with paragraph (c) and K.S.A. 60-405; no appellate review on excluded evidence. State v. Nix, 215 Kan. 880, 884, 529 P.2d 147.
9. Subsection (b) mentioned; evidence of good character introduced in criminal proceeding; proper under K.S.A. 60-447 to cross-examine on prior convictions. State v. Bowers, 218 Kan. 736, 737, 545 P.2d 303.
10. In not calling court's attention to statute, counsel failed to fulfill obligation as officer of court. Manley v. Rings, 222 Kan. 258, 262, 564 P.2d 482.
11. Examining party may contradict and impeach adverse party by cross-examination subject to control of court. Manley v. Rings, 222 Kan. 258, 261, 262, 564 P.2d 482.
12. Party may call adverse party and interrogate such party by leading questions. Manley v. Rings, 222 Kan. 258, 261, 262, 564 P.2d 482.
13. Counsel terminated examination without making known substance of evidence sought to be established. Manley v. Rings, 222 Kan. 258, 262, 564 P.2d 482.
14. Exclusion of proffered expert testimony in medical malpractice action error. Chandler v. Neosho Memorial Hospital, 223 Kan. 1, 2, 574 P.2d 136.
15. Motion for new trial is much more than a normal proffer of evidence during the course of a trial under subsection (c). State v. Phelps, 226 Kan. 371, 380, 598 P.2d 180.
16. Error to exclude evidence of prior carelessness of defendant's employee when offered to show negligence in supervision. McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. 766, 770, 667 P.2d 289 (1983).
17. Evidence sufficient to establish witness as turncoat witness and hostile; prior inconsistent statements admissible under K.S.A. 60-460(a). State v. Hobson, 234 Kan. 133, 145, 671 P.2d 1365 (1983).
18. Qualifications and use of and challenges to interpreters discussed in detail. State v. Pham, 234 Kan. 649, 660, 675 P.2d 848 (1984).
19. Determination on use of interpreters will be reversed on appeal only in most extreme circumstances. State v. Perrigo, 10 Kan. App. 2d 651, 653, 708 P.2d 987 (1985).
20. When trial court rules expert testimony is inadmissible, it is error to refuse a proffer of that testimony into the record. State v. Hodges, 241 Kan. 183, 192, 734 P.2d 1161 (1987).
21. Admission of suppression hearing transcript when state's witness unavailable at trial harmless error. State v. Phifer, 241 Kan. 233, 235, 737 P.2d 1 (1987).
22. Hearing, evidence and findings necessary to support admissibility of hearsay statements under K.S.A. 60-460(dd) examined. In re M.O., 13 Kan. App. 2d 381, 383, 770 P.2d 856 (1989).
23. Trial judge's threat of holding defense counsel in contempt not so prejudicial as to require new trial. State v. Sherrer, 259 Kan. 332, 338, 912 P.2d 747 (1996).
24. Cited; contested will, party prohibited from pro se telephonic participation in trial of contested will. In re Estate of Broderick, 286 Kan. 1071, 1080, 191 P.3d 284 (2008).
25. District court's prohibition of telephone participation of a natural father in termination of parental rights case violates constitutional due process requirements. In re J.O., 43 Kan. App. 2d 754, 232 P.3d 880 (2010).
26. In termination of parental rights proceeding, the trial court's denial of phone participation by a natural father denied him procedural due process. In re K.E., 46 Kan. App. 2d 218, 261 P.3d 934 (2011).
27. Natural father failed to meet the standards to establish that his testimony by telephone was warranted. In re K.E., 294 Kan. 1, 272 P.3d 28 (2012).
28. The district court may permit testimony in open court by contemporaneous transmission from a different location under certain circumstances. Fischer v. State, 296 Kan. 808, 295 P.3d 560 (2013).