MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
January 26, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:30 a.m., Tuesday, January 26, 1993, in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Mr. Robert M. Sader, Chairman
Mr. Gene T. Porter, Vice Chairman
Mr. Bernie Anderson
Mr John C. Bonaventura
Mr. John C. Carpenter
Mr. Tom Collins, Jr.
Mr. James A. Gibbons
Mr. William D. Gregory
Mr. William A. Petrak
Mr. John B. Regan
Mr. Scott Scherer
Ms. Stephanie Smith
Mr. Louis A. Toomin
COMMITTEE MEMBERS ABSENT:
Mr. Ken L. Haller Absent/Excused
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Denice Miller, Research Analyst
OTHERS PRESENT:
Mr. Chuck Gaw, Investigative Services Director of Washoe County School District
Mr. Roger Means, Washoe County School District
Lieutenant Jim Nadeau, Washoe County Sheriff's Office
Mr. Neil Carson, Deputy Chief of the Reno Police Department
Captain Randy Oaks, Las Vegas Metropolitan Police Department
OTHERS PRESENT CONTINUED:
Sheriff Paul McGrath, Carson City Sheriff's Department
Ms. Debbie Cahill, Nevada State Education Association
Ms. Carolyne Edwards, Legislative Representative for Clark County School District
Mr. Kevin Higgins, Deputy Attorney General's Office
Mr. Noel Waters, District Attorney of Carson City/President of the Nevada District Attorney's Association
Also see attached guest list (Exhibit B)
After the secretary called roll, Mr. Sader cancelled and rescheduled the hearing on AB 46.
Mr. Sader next opened the hearing on AB 75.
ASSEMBLY BILL 75 - TOTAL REWRITE -
Prohibits certain persons from possessing dangerous knife on property of school.
Mr. Chuck Gaw, Investigative Services Director for Washoe County School District was introduced by Mr. Roger Means of Washoe County School District, who spoke in support of AB 75. Mr. Gaw provided the committee with written testimony explaining why AB 75 needed to be amended (Exhibit C).
Mr. Sader questioned Mr. Gaw on how loitering related to the proposed amendment. Mr. Gaw explained the amendment to AB 75 would affect the non-student element which could create a nuisance by trespassing or loitering with dangerous weapons on school grounds. Mr. Sader inquired how this amendment would affect a student carrying a knife on school grounds. Mr. Gaw answered students were controlled by school regulations so there was no need for a statute to regulate their activities but for non-students there was.
Mr. Toomin asked, "How do you establish the 2 inch criteria?" Mr. Gaw used the language provided by the Legislative Counsel Bureau which was originally taken from the definition of a switch blade knife in the concealed weapon statute.
Ms. Smith inquired if a student could have a knife 2 inches or less on campus. Mr. Gaw said knives of any length were not allowed on any of the properties in Washoe County School District. Mr. Bonaventura wanted to know if an individual could be charged with a gross misdemeanor if he was standing near school grounds and had a knife. Mr. Gaw confirmed a person could be charged for a gross misdemeanor if he was on school grounds without lawful business and possessed a knife over 2 inches long.
Lieutenant Jim Nadeau of the Washoe County Sheriff's Office testified in support of AB 75 since the original concerns had been clarified by the new amended language. Mr. Neil Carson Deputy Chief of the Reno Police Department also was in support of AB 75 as amended.
Captain Randy Oaks of Las Vegas Metropolitan Police Department also came forward to testify in support of AB 75. Captain Oaks said the proposed amendment was acceptable.
Mr. Carpenter questioned how loitering related to a dangerous weapon. Captain Oaks explained an individual was viewed more seriously when he was loitering with a weapon than if he was loitering without a weapon. Here mere possession was the issue. A short discussion followed.
Sheriff Paul McGrath of Carson City also came forward to testify in favor of AB 75. Sheriff McGrath supported the amendment to AB 75 as written for his school districts and rural areas.
Ms. Debbie Cahill, Nevada State Education Association, also testified in support of AB 75 because it addressed the concerns of education employees, students and their parents.
Ms. Carolyne Edwards, Legislative Representative for Clark County School District, also came forward to testify in support of AB 75 as amended.
There being no further testimony Mr. Sader closed the hearing on AB 75.
ASSEMBLYMAN ANDERSON MOVED TO AMEND AND DO PASS AB 75.
ASSEMBLYMAN GIBBONS SECONDED THE MOTION.
THE MOTION CARRIED.
ASSEMBLYMAN COLLINS VOTED NO.
ASSEMBLY BILL 78 -
Requires defendant in criminal proceedings to disclose potential defense witnesses upon motion by prosecutor.
Mr. Kevin Higgins, from the Deputy Attorney General's Office, came forward to testify on behalf of AB 78. Mr. Higgins explained AB 78 would expedite the trial process since it would allow the prosecution to anticipate the defense's strategy by a disclosure of the defense's witness list.
Mr. Noel Waters, District Attorney of Carson City/President of the Nevada District Attorney's Association, also came forward to testify in support of AB 78. Mr. Waters explained AB 78 was a reciprocal discovery bill which would allow the prosecution the same information provided to the defense attorney in preparations for trial.
A short discussion followed. Mr. Porter strongly believed AB 78 shifted the burden of proof from the prosecution to the defense if a defense witness list was disclosed before trial.
Ms. Smith inquired if testimony was to be heard in court anyway what difference would it make whether it was heard before trial and how would it affect an individual's civil rights. Mr. Porter explained the testimony might not come out during the trial because not all witnesses spoken to before trial would be available to testify due to unforseen occurrences. Mr. Porter strongly felt the disclosure of impeachment and character witnesses before a criminal trial proceeding would change the complexion of the trial since the prosecution would be able to craft its testimony to make impeachment and character witnesses less effective.
Mr. Scherer promoted AB 78 because just as prosecution witnesses might be wrong or might be impeached defense witnesses might be equally wrong or impeachable. Mr. Scherer pointed out if prosecution did not find out who the defense witnesses were until the day of trial there was not sufficient opportunity for prosecution to prepare a cross examination of that witness. Mr. Scherer further stated AB 78 did not preclude the defense from introducing a last minute witness.
Mr. Toomin asked how AB 78 would speed up the trial process. Mr. Higgins answered it would speed up the process if the prosecution was allowed to ask the same questions defense would ask the defense witnesses before trial. Mr. Higgins said there would be fewer recesses during a trial if AB 78 were enacted.
Mr. Bonaventura believed AB 78 created an added expense on the defendant since it would require more time for the defense attorney to produce this disclosure list. Mr. Higgins replied there should not be any extra cost since the prosecution would ask for a witness list the defense already had.
Mr. George McNally, President of the Nevada Trial Lawyers Association, came forward to testify also on AB 78. Mr. McNally pointed out a criminal setting dealt with a defendant's freedom and the defendant was in a rebuttal situation where it was not required to provide anything until the state had proved the case beyond a reasonable doubt.
There being no further testimony, Mr. Sader closed the hearing on AB 78.
ASSEMBLYMAN PORTER MOVED TO INDEFINITELY POSTPONE AB 78.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
Mr. Sader asked for a roll call vote.
THE MOTION CARRIED.
ASSEMBLYMEN ANDERSON, BONAVENTURA, CARPENTER, COLLINS, GIBBONS, GREGORY, PETRAK, PORTER, REGAN AND SADER VOTED YES. ASSEMBLYMEN SCHERER, SMITH AND TOOMIN VOTED NO. ASSEMBLYMAN HALLER WAS ABSENT.
ASSEMBLY BILL 79 -
Restricts use of videotaped deposition at criminal trial.
Mr. Sader explained the reason historically for AB 79. Mr. Sader pointed out between the 1983 and 1985 Sessions there was an interim study which dealt with child abuse and sexual abuse crimes and one recommendation was there be a procedure by which the victim would be able to testify, not in court but by video taped deposition prior to the court proceedings. Procedures were set up in 1985 and the bill passed. The issue was then litigated and the court decided the bill was unconstitutional. AB 79 is a correction of the bill passed in 1985.
Mr. Kevin Higgins, Deputy Attorney General, came forward to testify in support of AB 79. Mr. Higgins said the purpose of AB 79 was to allow prosecution in some circumstances of sexual assault cases, primarily child sexual assault cases, where the victim would not testify.
Mr. Higgins discussed the constitutional confrontation clause which was a problem in sexual abuse cases of children where oftentimes the child would not say a word when in the same room with the person who allegedly committed the abuse. Various states had tried different methods which resulted in some cases in the United States Supreme Court primarily Idaho vs. Wright and Maryland vs. Creig. The case of Maryland vs. Creig decided while the confrontation clause is of primary importance it allowed the use of remote video tape testimony in behalf of a victim who would otherwise be traumatized. This was what AB 79 was all about. To use a video tape in lieu of the abused victim's testimony the judge had to find the actual testimony would cause more than the minimal degree of trauma upon the victim. If the judge found such conditions, then specific proceedings would be presided over by the Justice of the Peace or the District Judge. The accused's attorney would be present while the accused would be electronically present although not physically present. The idea was the remote video testimony would allow the victim to testify.
Mr. Higgins explained child abuse cases generally became a battle of expert witnesses. Mr. Higgins said video tape testimony would permit testimony to be taken from the actual victim.
Mr. Noel Waters, Nevada District Attorney's Association, came forward to testify in support of AB 79. Mr. Waters agreed with Mr. Higgins' testimony. This bill quite adequately complied with the confrontational constraints that Maryland vs. Creig and Idaho vs. Wright had imposed for use of video tape depositions in trials that especially dealt with child abuse. Mr. Waters said AB 79 would satisfy the confrontation clause problems presented by NRS 174.229 of 1985.
Mr. Sader asked Mr. Waters if AB 79 focused on criminal prosecutions with regard to sexual abuse and the related statutes. Mr. Waters responded NRS 432B.100 were broad statutes for sexual abuse which included sexual exploitation of a minor involved in pornography, not just rape cases, as well as abuse cases also.
Mr. Collins questioned if video was used as opposed to the witness being in the courtroom, who would do the editing and how did it affect the witness' presentation on a video. How was the defense protected against an inaccurate presentation? Mr. Waters revealed the actual mechanical layout for the deposition was reviewed by the judge who made sure the sound quality and the clarity of the camera was good. Mr. Waters discussed the case of Coy vs. Iowa where one concern was not only the defendant being able to see the child but likewise the child being able to see the defendant. Mr. Sader inquired if the actual video recording would be done by a court reporter, not the prosecution. Mr. Waters explained yes the court reporter was required to give an accurate portrayal of the event if there was to be any editing done.
Mr. Carpenter asked what the difference was between the section to be added and NRS 174.227 as it was now. Mr. Waters said the primary addition was the requirement that the Judge determine the need for the video tape deposition as opposed to the decision being made upon a motion of the prosecutor or the defense. Secondarily, the requirement for the Justice of the Peace or the District Court Judge to preside over the taking of a deposition incorporated some of the present language under NRS 174.227. The main change was before the confrontation clause could be sacrificed, the judge must find the necessity to do so. The confrontation clause would only be sacrificed after the determination that the welfare of the victim required it.
Mr. Sader suggested the deletion of page 2 of NRS 174.227. Otherwise there would be two statutes relating to video taped depositions, one which dealt with sexual abuse as defined in the italicized language and the second which dealt with sexual abuse of a prospective witness who was less than 14 years of age. Mr. Sader asked if there was overlap of two different standards. Mr. Waters believed there was overlap in subsection 5 of NRS 174.227 which specified when the video tape deposition was used in lieu of the deponent's testimony. Mr. Sader asked if subsection (a) under the existing statute would overlap and provide a different standard than section 1 of AB 79 was to provide. Mr. Higgins said page 2, subsection 4 of AB 79 had a limitation by section 1 of NRS 174.227 and subsection 5 was deleted completely.
Mr. Gibbons pointed out section 1 of AB 79 dealt with when to use videotape depositions and page 2 dealt with when to take videotape deposition. Mr. Sader concluded there was not any overlapping language.
ASSEMBLYMAN GIBBONS MOVED TO DO PASS AB 79.
ASSEMBLYMAN SMITH SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.
Mr. Sader noted the Attorney General had requested a bill that would provide for forfeiture of good time credit where inmate litigation was deemed frivolous or abusive by the court. Mr. Sader asked the committee for a motion on the bill draft request.
ASSEMBLYMAN ANDERSON MOVED FOR COMMITTEE INTRODUCTION OF THE BILL DRAFT REQUEST.
ASSEMBLYMAN REGAN SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.
Mr. Sader discussed AB 491 of the 66th Session. Mr. Sader said AB 491 of the 66th Session was vetoed by Governor Miller (Exhibit D) because of section 4 which allowed a treatment facility to confine a DUI offender for up to 6 months on the facility's recommendation, not the court's. The bill was initially proposed by the Nevada Commission on Drugs, the Governor's commission. Mr. Sader had discussed AB 491 of the 66th Session with Mr. Carpenter and it was agreed the committee should support the Governor's veto, then bring the bill back this session without the provision which gave the treatment facility the discretion to confine anyone.
There being no further business to come before committee, the meeting was adjourned at 10:31 a.m.
RESPECTFULLY SUBMITTED:
CHANDRA PENDERLAND
Committee Secretary
??
Assembly Committee on Judiciary
January 26, 1993
Page: 1