38-2249. Rules of evidence.
38-2249
38-2249. Rules of evidence.(a) In all proceedings under this code, the rules ofevidence of the code of civil procedure shall apply, except that no evidencerelating to the conditionof a child shall be excluded solely on the ground that the matter is or may bethe subject of a physician-patient privilege, psychologist-client privilege orsocial worker-client privilege.
(b) The judge presiding at all hearings under this code shall notconsider or rely upon any report not properly admitted accordingto therules of evidence, except as provided byK.S.A. 2009 Supp.38-2219, andamendments thereto.
(c) In any proceeding in which a child less than 13 years of age is allegedto have beenphysically, mentally or emotionally abused or neglected or sexually abused, arecording of an oralstatement of the child, or of any witness less than 13 years of age, madebefore the proceeding began,is admissible in evidence if:
(1) The court determines that the time, content and circumstances ofthe statementprovide sufficient indicia of reliability;
(2) no attorney for any party or interested party is present whenthe statement ismade;
(3) the recording is both visual and aural and is recorded on film,videotape or byother electronic means;
(4) the recording equipment is capable of making an accurate recording, theoperatorof the equipment is competent and the recording is accurate and has not beenaltered;
(5) the statement is not made in response to questioning calculatedto lead the childto make a particular statement or is clearly shown to be the child's statementand notmade solely as a result of a leading or suggestive question;
(6) every voice on the recording is identified;
(7) the person conducting the interview of the child in therecording is present at theproceeding and is available to testify or be cross-examined by any party orinterestedparty; and
(8) each party or interested party to the proceeding is afforded anopportunity to viewthe recording before it is offered into evidence.
(d) On motion of any party to a proceeding pursuant to thecodein which a child less than 13 years of age is alleged to have beenphysically, mentally oremotionally abused or neglected or sexually abused, the court may order thatthe testimony of thechild, or of any witness less than 13 years of age, be taken:
(1) In a room other than the courtroom and be televised by closed-circuitequipment in thecourtroom to be viewed by the court and the parties and interested parties tothe proceeding; or
(2) outside the courtroom and be recorded for showing in the courtroom beforethe court andthe parties and interested parties to the proceeding if:
(A) The recording isboth visual and aural andis recorded on film, videotape or by other electronic means;
(B) therecording equipment is capableof making an accurate recording, the operator of the equipment is competent andthe recording isaccurate and has not been altered;
(C) every voice on the recording isidentified; and
(D) each partyand interested party to the proceeding is afforded an opportunity to view therecording before it isshown in the courtroom.
(e) At the taking of testimony under subsection (d):
(1) Only an attorney for each party, interested party, the guardian adlitem for the child orother person whose presence would contribute to the welfare and well-being ofthe child and personsnecessary to operate the recording or closed-circuit equipment may be presentin the room with the child during the child's testimony;
(2) only the attorneys for the parties may question the child; and
(3) the persons operating the recording or closed-circuit equipment shall beconfined to anadjacent room or behind a screen or mirror that permits such person to see andhearthe child during thechild's testimony, but does not permit the child to see or hear such person.
(f) If the testimony of a child is taken as provided by subsection (d), thechild shall not becompelled to testify in court during the proceeding.
(g) (1) Any objection to a recording undersubsection (d)(2) that such proceedingis inadmissible must be made by written motion filed with the court at leastseven days before thecommencement of the adjudicatory hearing. An objection under this subsectionshall specify theportion of the recording which is objectionable and the reasons for theobjection. Failure to file anobjection within the time provided by this subsection shall constitute waiverof the right to objectto the admissibility of the recording unless the court, in its discretion,determines otherwise.
(2) The provisions of this subsection shall not apply to any objection toadmissibility forthe reason that the recording has been materially altered.
History: L. 2006, ch. 200, § 44;L. 2007, ch. 57, § 1; Apr. 5.