60-417. 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 Kan. 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 Kan. 253, 263, 264, 411 P.2d 694.
3. Trial court justified in permitting nine-year-old girl to testify. State v. DeLespine, 201 Kan. 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 Kan. 719, 726, 727, 466 P.2d 283.
5. Alleged deficiencies in defendants' testimony went to weight rather than admissibility. State v. Barry, 216 Kan. 609, 617, 533 P.2d 1308.
6. Contention of incompetency and inadmissibility of testimony concerning conflicting statements rejected. State v. Donahue, 218 Kan. 351, 354, 543 P.2d 962.
7. Denial of motion to suppress testimony upheld; duty as witness understood. State v. Smallwood, 223 Kan. 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 Kan. App. 2d 353, 354, 657 P.2d 79 (1983).
9. Witness not prohibited from testifying simply because of age. State v. Thrasher, 233 Kan. 1016, 1018, 666 P.2d 722 (1983).
10. Qualifications and use of and challenges to interpreters discussed in detail. State v. Pham, 234 Kan. 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 Kan. 17, 24, 28, 697 P.2d 836 (1985).
12. Cited; competency of juvenile victim of aggravated incest (K.S.A. 21-3603) to testify discussed. State v. Perrigo, 10 Kan. App. 2d 651, 655, 708 P.2d 987 (1985).
13. Incompetence not sole basis for finding child witness unavailable under K.S.A. 60-460(dd). State v. Kuone, 243 Kan. 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 Kan. 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 Kan. 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 Kan. 382, 387, 790 P.2d 430 (1990).
17. Finding that child-victim was unavailable as a witness (K.S.A. 60-460) one year before trial as error determined. State v. McClanahan, 14 Kan. App. 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 Kan. 94, 120, 891 P.2d 1074 (1994).
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