Printable Format60-417. Disqualification of witness; interpreters. A person is disqualified to be a witness if the judge finds that (a) the proposed witness is incapable of expressing himself or herself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him or her, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth. An interpreter is subject to all the provisions of this article relating to witnesses.
History: L. 1963, ch. 303, 60-417; January 1, 1964.
Source or prior law:
G.S. 1868, ch. 80, § 323; L. 1909, ch. 182, § 321; R.S. 1923, 60-2805.
Law Review and Bar Journal References:
"The New Kansas Law Regarding Admissibility of Child-Victim Hearsay Statements," G. Joseph Pierron, 52 J.K.B.A. 88, 89 (1983).
"Survey of Kansas Law: Evidence," Mark M. Dobson, 32 K.L.R. 625, 626 (1984).
"The Admissibility of Child Victim Hearsay in Kansas: A Defense Perspective," Christopher B. McNeil, 23 W.L.J. 265, 266, 268, 274, 276, 282 (1984).
CASE ANNOTATIONS
Prior law cases, see G.S. 1949, 60-2805 and the 1961 Supp. thereto.
1. Attorney employed to obtain child for clients required to divulge their names in action by natural father for custody. Olney v. Hobble, 193 K. 692, 694, 396 P.2d 367.
2. Competency of witness as disqualification considered; prior law (G.S. 1949, 60-2805, "First") reviewed; section limits K.S.A. 60-417. State v. Poulos, 196 K. 253, 263, 264, 411 P.2d 694.
3. Trial court justified in permitting nine-year-old girl to testify. State v. DeLespine, 201 K. 348, 351, 440 P.2d 572.
4. Child of seven allowed to testify; judge found she was capable of expressing herself so as to be understood by him and the jury, and she was capable of understanding the duty of a witness to tell the truth. State v. Jones, 204 K. 719, 726, 727, 466 P.2d 283.
5. Alleged deficiencies in defendants' testimony went to weight rather than admissibility. State v. Barry, 216 K. 609, 617, 533 P.2d 1308.
6. Contention of incompetency and inadmissibility of testimony concerning conflicting statements rejected. State v. Donahue, 218 K. 351, 354, 543 P.2d 962.
7. Denial of motion to suppress testimony upheld; duty as witness understood. State v. Smallwood, 223 K. 320, 322, 327, 574 P.2d 1361.
8. Indecent liberties with child; hearsay testimony of mother of four-year old victim admissible under contemporaneous statements exception. State v. Rodriquez, 8 K.A.2d 353, 354, 657 P.2d 79 (1983).
9. Witness not prohibited from testifying simply because of age. State v. Thrasher, 233 K. 1016, 1018, 666 P.2d 722 (1983).
10. Qualifications and use of and challenges to interpreters discussed in detail. State v. Pham, 234 K. 649, 660, 675 P.2d 848 (1984).
11. Cited in holding that hearing prior to trial on merits cured failure to make determination before preliminary hearing. State v. Myatt, 237 K. 17, 24, 28, 697 P.2d 836 (1985).
12. Cited; competency of juvenile victim of aggravated incest (21-3603) to testify discussed. State v. Perrigo, 10 K.A.2d 651, 655, 708 P.2d 987 (1985).
13. Incompetence not sole basis for finding child witness unavailable under 60-460(dd). State v. Kuone, 243 K. 218, 223, 224, 757 P.2d 289 (1988).
14. Cited; statutory requirement of competence to testify examined; finding witness unable or unwilling to abide by oath not permissible basis. Jones v. Bordman, 243 K. 444, 457, 759 P.2d 953 (1988).
15. Cited; qualification as witness of individual under age 21 who observed events while acting as police officer examined. State v. Winkel, 243 K. 570, 573, 757 P.2d 318 (1988).
16. Witness as presumed competent regardless of young age noted; establishing incompetency rests with challenger. State v. Colwell, 246 K. 382, 387, 790 P.2d 430 (1990).
17. 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).
18. Psychiatrist's testimony regarding interviews of child indicating child disqualified for inability to express herself rather than understanding truth noted. Myatt v. Hannigan, 910 F.2d 680 (1990).
19. Whether judge used proper procedures to determine whether autistic witness using facilitated communication was validly communicating examined. State v. Warden, 257 K. 94, 120, 891 P.2d 1074 (1994).