EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, October 23, 2008

We're Not (Available) In Kansas Anymore: Supreme Court of Kansas Adds To Definition Of Unavailability In Battery Appeal

The recent opinion of the Supreme Court of Kansas in State v. Jefferson, 2008 WL 4601295 (Kan. 2008), reveals that there was a significant difference between the Kansas Rules of Evidence and the Federal Rules of Evidence on the issue of when a declarant is "unavailable." As a result of Jefferson, however, that distinction no longer exists.

In Jefferson, Anthony Jefferson appealed from his conviction for aggravated battery.  Jefferson's conviction was based in part upon the testimony of Jesse Villa, Jefferson's neighbor, who testified against him at a preliminary hearing.  Villa was subsequently subpoenaed to testify at Jefferson's trial, but, by that time he was incarcerated, and although he appeared, he refused to testify.  Villa claimed no privilege, and he maintained that he had not been threatened.  He said he was not afraid to testify; he simply refused to do so.  The judge held him in contempt and sentenced him to 6 months in jail

He also admitted Villa's testimony from the preliminary hearing pursuant to K.S.A. 60-460(c), its counterpart to Federal Rule of Evidence 804(b)(1), the former testimony exception the rule against hearsay.  And like Federal Rule of Evidence 804(b)(1), K.S.A. 60-460(c) requires that a declarant be "unavailable" at trial before his former testimony can be admitted.

However, while Federal Rule of Evidence 804(a)(2) defines a declarant who "persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so" as "unavailable," K.S.A. 60-459(g) does not define such a witness as "unavailable."  Instead, K.S.A. 60-459(g) states that:

     "Unavailable as a witness" includes situations where the witness is (1) exempted on the ground of privilege from testifying concerning the matter to which his or her statement is relevant, or (2) disqualified from testifying to the matter, or (3) unable to be present or to testify at the hearing because of death or then existing physical or mental illness, or (4) absent beyond the jurisdiction of the court to compel appearance by its process, or (5) absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts.

As I have noted before, however, courts have generally found that the enumerated definitions of "unavailability" in their rules of evidence are not exhaustive, and that its exactly what the Supreme Court of Kansas did in addressing Jefferson's appeal.  It found that:

     "the plain language of K.S.A. 60-459(g) permits situations other than those listed to equal witness unavailability....This brings us to the question of whether Villa's situation or circumstances, i.e., his refusal to testify in this case, qualified him as 'unavailable' under K.S.A. 60-459(g)The answer is yes. There was no practical distinction between Villa and any of the out-of-court declarants described in K.S.A. 60-459(g). His live testimony was just as inaccessible and just as necessary. His late-blooming reticence, likely generated by events that had transpired between Jefferson's preliminary hearing and trial, should not be permitted to undermine the court's truth-finding purpose."

As in a similar case in Colorado, I am a bit uneasy with this result, but I'm not ready at this point to endorse or criticize this practice.



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