60-428.
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.
Notes of Decisions
Cited in
19
cases (
2 in the last 5 years), 1976–2025 · leading case:
State v. Myers, 640 P.2d 1245 (Kan. 1982).
State v. Myers, 640 P.2d 1245 (Kan. 1982).
· cites it 9× “60-423 and K.S.A. 60-428. K.S.A. 60-423 states in part as follows: “60-423.”
State v. Newman, 680 P.2d 257 (Kan. 1984).
· cites it 3× “60-423(fe) and K.S.A. 60-428(a), holding that all of defendant’s acts and conversations constituted privileged confidential communications within the statutory provisions.”
Commonwealth v. McBurrows, 779 A.2d 509 (Pa. Super. Ct. 2001).
· cites it 3× “60-423(b) and K.S.A. 60-428(a) does not extend to all observations of the acts of one spouse by the other but is limited to spoken or written statements or nonverbal signs or gestures seeking to transmit information from one spouse to another); State v.”
Brown v. State, 753 A.2d 84 (Md. 2000).
· cites it 2× “504 (West 1999); Kan. Stat. Ann. § 60-428 (a) (1995); La.Code Evid.”
State v. Holt, 574 P.2d 152 (Kan. 1977).
· cites it 2× “Holt’s testimony is based essentially on K.S.A. 60-428 which provides in pertinent part as follows: “60-428.”
State v. Nott, 669 P.2d 660 (Kan. 1983).
· cites it 2× “60-427]; marital privilege [K.S.A. 60-428]; and penitential communication privilege [K.”
Peden v. State, Kansas Dept. of Revenue, 930 P.2d 1 (Kan. 1996).
“23-205 (allowing an injured person to pursue a loss of consortium claim on behalf of his or her spouse); K.S.A. 59-504 (providing for intestate succession of surviving spouses).”
State v. Glover, 547 P.2d 351 (Kan. 1976).
· cites it 2× “The privilege here stated is broader than that contained in section 60-428 which limits the privilege in other situations to those of the ‘communicating spouse.”
Herbstreith v. De Bakker, 815 P.2d 102 (Kan. 1991).
“60-427; and the marital privilege, K.S.A. 60-428; and how they are waived. St.”
State v. Ratley, 827 P.2d 78 (Kan. Ct. App. 1992).
“60-423, K.S.A. 60-428, and K.S.A. 60-1601 et seq.”
State v. Galloway, 680 P.2d 268 (Kan. 1984).
“) K.S.A. 60-428(c) provides: “(a) General rule.”
— K.S.A. § 60-428(a) — 3 cases
State v. Newman, 680 P.2d 257 (Kan. 1984).
“60-423(fe) and K.S.A. 60-428(a), holding that all of defendant’s acts and conversations constituted privileged confidential communications within the statutory provisions.”
Commonwealth v. McBurrows, 779 A.2d 509 (Pa. Super. Ct. 2001).
“60-423(b) and K.S.A. 60-428(a) does not extend to all observations of the acts of one spouse by the other but is limited to spoken or written statements or nonverbal signs or gestures seeking to transmit information from one spouse to another); State v.”
— K.S.A. § 60-428(b)(3) — 2 cases
— K.S.A. § 60-428(c) — 1 case
State v. Galloway, 680 P.2d 268 (Kan. 1984).
“) K.S.A. 60-428(c) provides: “(a) General rule.”
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