60-423. Privilege of accused. (a) Every person has in any criminal action in which he or she is an accused a privilege not to be called as a witness and not to testify.
(b) An accused in a criminal action has a privilege to prevent his or her spouse from testifying in such action with respect to any confidential communication had or made between them while they were husband and wife, excepting only (1) in an action in which the accused is charged with (i) a crime involving the marriage relation, or (ii) a crime against the person or property of the other spouse or the child of either spouse, or (iii) a desertion of the other spouse or a child of either spouse, or (2) as to the communication, in an action in which the accused offers evidence of a communication between himself or herself and his or her spouse.
(c) An accused in a criminal action has no privilege to refuse, when ordered by the judge, to present his or her person for identification or do any act in the presence of the judge or the trier of the facts, except to refuse to be a witness against himself or herself.
History: L. 1963, ch. 303, 60-423; January 1, 1964.
Cross References to Related Sections:
Constitutional rights, see Kansas Constitution, Bill of Rights, § 10.
Criminal trials, see 22-3401 et seq.
Law Review and Bar Journal References:
Amendment by legislature discussed in "Highlights of the Kansas Code of Civil Procedure (1963)," Spencer A. Gard, 2 W.L.J. 199, 212 (1962).
Subsection (b); discussion of husband-wife privilege, Ross R. Freeman, 6 W.L.J. 144, 158 (1966).
Subsection (c); privilege against self-incrimination is limited to "testimonial compulsion," Spencer A. Gard, 16 K.L.R. 125, 127, 129 (1967).
"Amending the Kansas Juvenile Code," Richard H. Seaton, 16 K.L.R. 277, 280 (1968).
Conspiracy law, 26 K.L.R. 571, 589 (1978).
"Survey of Kansas Law: Evidence," Mark M. Dobson, 32 K.L.R. 625, 648, 649 (1984).
"Criminal Procedure—Severed Defendant's Fifth Amendment Refusal to Testify at Co-defendant's Trial is Admissible to Impeach Defendant's Alibi Defense at His Own Trial—State v. Nott," Joe Rebein, 33 K.L.R. 189, 198 (1984).
"Keeping the Family Out of Court: Court-Ordered Mediation of Custody Disputes Under the Kansas Statutes," Nancy G. Maxwell, 25 W.L.J. 203, 222 (1986).
"Closing Argument: The Final Fatal Flaw," Roger W. Badeker, 60 J.K.B.A. No. 3, 37, 39 (1990).
"The Psychologist-Patient Privilege: Time for a Change in Kansas, or is it all in our Heads?" Boyd Isherwood, 37 W.L.J. 659 (1998).
"Invocation of the Fifth Amendment in Kansas Proceedings: Application of the Privilege and Rebutting the Imposition of Adverse Inferences," Jeff D. Morris, 73 J.K.B.A. No. 3, 14 (2004).
"Motions in Limine: Where Evidence Stands on the Threshold," Derek S. Casey, J.K.T.L.A. Vol. 29, No. 4, 4 (2006).
Criminal Procedure Survey, 55 K.L.R. 797 (2007).
Criminal Procedure Survey, 56 K.L.R. 745 (2008).
Attorney General's Opinions:
Extensive discussion of confidentiality provisions of Kansas Code for Care of Children. 2004-32.
CASE ANNOTATIONS
1. Referred to in determining subpoena issued under K.S.A. 44-1004 for employee's arrest and conviction records not violative of constitutional right of privacy. Atchison, T.&S.F. Rly. Co. v. Lopez, 216 Kan. 108, 125, 531 P.2d 455.
2. Questions relating to privilege did not constitute impermissible comment under K.S.A. 60-439 nor violate privilege hereunder. State v. Freeman, 216 Kan. 653, 655, 534 P.2d 226.
3. Conflicting statements of defendant as to whereabouts at time of crime held admissible in criminal case. State v. Donahue, 218 Kan. 351, 353, 543 P.2d 962.
4. Subsection (b) construed; marital privilege hereunder compared with that granted by K.S.A. 60-428; testimony admitted not confidential communication within purview of section. State v. Glover, 219 Kan. 54, 56, 57, 58, 547 P.2d 351.
5. Testimony of wife was not a violation of marital privilege; conviction upheld. State v. Johnson, 229 Kan. 42, 44, 45, 621 P.2d 992.
6. Cited in considering applicability of K.S.A. 60-428; confidential communications between spouses admissible when inadvertently obtained by third party. State v. Myers, 230 Kan. 697, 698, 699, 640 P.2d 1245 (1982).
7. State agency regulations cannot limit scope of discoverable matter; no privilege for hospital committee records, staff committee minutes, peer review notes or self-evaluation and policing information. Wesley Medical Center v. Clark, 234 Kan. 13, 18, 669 P.2d 209 (1983).
8. Where defendant testified at own trial, court erred in prohibiting cross-examination regarding refusal to testify at earlier trial of fellow defendant. State v. Nott, 234 Kan. 34, 36, 669 P.2d 660 (1983).
9. Communication between spouses in presence of or overheard by third person not privileged; application of the fruit of the poisonous tree doctrine considered. State v. Newman, 235 Kan. 29, 37, 41, 680 P.2d 257 (1984).
10. Wife's observation of keys in back of crowded drawer lacks indicia of communication; clearly outside marital privilege. State v. Galloway, 235 Kan. 70, 91, 680 P.2d 268 (1984).
11. Refusal to testify after pleading guilty but before sentencing protected by Fifth Amendment privilege against self-incrimination. State v. Rucas, 12 Kan. App. 2d 68, 71, 734 P.2d 673 (1987).
12. Nonparty spouse of bankruptcy debtor compelled to testify by deposition in bankruptcy case; privilege restricted to use in criminal cases. In re Davis, 109 B.R. 442 (1990).
13. Evidence defendant discussed murder with wife and third party negated marital privilege. Rankin v. Roberts, 788 F. Supp. 521, 523 (1992).
14. Whether court's refusal to force codefendant to testify denied defendant right to compel witness testimony examined. State v. Green, 254 Kan. 669, 679, 867 P.2d 366 (1994).
15. Whether conviction and sentencing of codefendant removed 5 th Amendment protection for codefendant's testimony in defendant's trial examined. State v. Johnson-Howell, 255 Kan. 928, 939, 881 P.2d 1288 (1994).
16. Rights, under constitutions of the United States and state of Kansas, of persons called as witnesses in inquisitions. In re Investigation into Homicide of T.H., 23 Kan. App. 2d 471, 474, 932 P.2d 1023 (1997).
17. Evidence admitted that defendant watched pornographic movies with child; no error found; no objection at trial. State v. Gaona, 41 Kan. App. 2d 1064, 208 P.3d 308 (2009).
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