Printable Format60-428. Marital privilege, confidential communications. (a) General rule. Subject to K.S.A. 60-437 and except as otherwise provided in subsections (b) and (c) of this section, a spouse who transmitted to the other the information which constitutes the communication, has a privilege during the marital relationship which he or she may claim whether or not a party to the action, to refuse to disclose and to prevent the other from disclosing communications found by the judge to have been had or made in confidence between them while husband and wife. The other spouse or either his or her guardian or conservator may claim the privilege on behalf of the spouse having the privilege.
(b) Exceptions. Neither spouse may claim such privilege (1) in an action by one spouse against the other spouse, or (2) in an action for damages for the alienation of the affections of the other, or for criminal conversation with the other, or (3) in a criminal action in which one of them is charged with a crime against the person or property of the other or of a child of either, or a crime against the person or property of a third person committed in the course of committing a crime against the other, or bigamy or adultery, or desertion of the other or of a child of either, or (4) in a criminal action in which the accused offers evidence of a communication between him or her and his or her spouse, or (5) if the judge finds that sufficient evidence, aside from the communication, has been introduced to warrant a finding that the communication was made, in whole or in part, to enable or aid anyone to commit or to plan to commit a crime or a tort.
(c) Termination. A spouse who would otherwise have a privilege under this section has no such privilege if the judge finds that such spouse while the holder of the privilege testified or caused another to testify in any action to any communication between the spouses upon the same subject matter.
History: L. 1963, ch. 303, 60-428; L. 1965, ch. 354, § 9; January 1, 1966.
Source or prior law:
G.S. 1868, ch. 80, § 323; L. 1909, ch. 182, § 321; R.S. 1923, 60-2805 (3 rd clause).
Cross References to Related Sections:
Privilege of accused, see 60-423.
Law Review and Bar Journal References:
Survey of law of evidence, Spencer A. Gard, 12 K.L.R. 239, 240 (1963).
Effect of section discussed, Ross R. Freeman, 6 W.L.J. 144, 156, 157 (1966).
"The Psychotherapists' Privilege," Craig Kennedy, 12 W.L.J. 297, 299 (1973).
"Medical Malpractice Litigation: The Discoverability and Use of Hospitals' Quality Assurance," Reid F. Holbrook and Lee J. Dunn, Jr., 16 W.L.J. 54, 63 (1976).
"Survey of Kansas Law: Evidence," Spencer A. Gard, 27 K.L.R. 225, 231, 237 (1979).
"Survey of Kansas Law: Evidence," Mark M. Dobson, 32 K.L.R. 625, 648, 649 (1984).
"Evidence: The Psychotherapist-Patient Privilege Under Federal Rule of Evidence 501," Lauren Messersmith, 23 W.L.J. 706, 707 (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).
CASE ANNOTATIONS
Prior law cases, see G.S. 1949, 60-2805 (3 rd clause) and the 1961 Supp. thereto.
1. Referred to in determining subpoena issued under 44-1004 for employee's arrest and conviction records not violative of constitutional rights of privacy. Atchison, T.&S.F. Rly. Co. v. Lopez, 216 K. 108, 125, 531 P.2d 455.
2. Section compared with K.S.A. 60-423; time of termination of marital privilege noted. State v. Glover, 219 K. 54, 56, 57, 547 P.2d 351.
3. Res gestae statements made spontaneously; admissible; privilege hereunder not applicable to third party. State v. Childers, 222 K. 32, 45, 563 P.2d 999.
4. Trial court erred in permitting wife to testify as to contents of confidential note; harmless error. State v. Holt, 223 K. 34, 43, 44, 45, 573 P.2d 1117.
5. Testimony of wife was not a violation of marital privilege; conviction upheld. State v. Johnson, 229 K. 42, 44, 621 P.2d 992.
6. Confidential communications between spouses admissible when inadvertently obtained by third party. State v. Myers, 230 K. 697, 698, 699, 700, 701, 640 P.2d 1245 (1982).
7. 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 K. 34, 40, 669 P.2d 660 (1983).
8. Cited in holding objection to admissibility of statements by defendant or counsel at diversion conference not available to codefendant. State v. Wilkins, 9 K.A.2d 331, 333, 676 P.2d 159 (1984).
9. Marital privilege limited to spoken or written statements or nonverbal signs or gestures seeking to transmit information; application of the fruit of the poisonous tree doctrine considered. State v. Newman, 235 K. 29, 40, 41, 43, 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 K. 70, 91, 680 P.2d 268 (1984).
11. Privilege contained herein compared with peer review privilege contained in 65-4915(b) in medical malpractice case. Herbstreith v. de Bakker, 249 K. 67, 80, 815 P.2d 102 (1991).
12. Evidence defendant discussed murder with wife and third party negated marital privilege. Rankin v. Roberts, 788 F.Supp. 521, 523 (1992).