MINUTES OF THE
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
February 8, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader, at 1:10 p.m., on Monday, February 8, 1993, in Room 105/106 at Cashman Field Center, Las Vegas, 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 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. Michael Schneider
Mr. Louis A. Toomin
OTHERS PRESENT:
Ben Graham, Nevada District Attorneys' Association
Mel Harmon, Clark County District Attorney's Office
Thomas Pitaro, Nevada Attorneys for Criminal Justice
Steve Dahl, Clark County Public Defender's Office
William Koot, Clark County District Attorney's Office
Sgt. K. Hefner, Las Vegas Metropolitan Police Dept.
John Lukens, Chief Deputy, Sexual Assault Unit,
Clark County District Attorney's Office
Renata Cirri, Executive Director, Community Action
Against Rape (CAAR)
Sgt. Gwendolyn Pascoe, Las Vegas Metropolitan Police
Department Sexual Assault Unit
Patricia Justice, Clark County Public Defender's Office
Deborah Owen, Clark County Public Defender's Office
James Jackson, Clark County Public Defender
ASSEMBLY BILL 57 - Clarifies procedure for obtaining involuntary samples of blood from certain persons suspected of driving under influence of controlled substance or alcohol.
Chairman Sader announced the hearing on AB 57 would be continued to another date since there was no one present to testify.
ASSEMBLY BILL 58 - Expands aggravated circumstances under which death penalty may be imposed to include first degree murder of child under 14 years of age.
Chairman Sader introduced Ben Graham of the Nevada District Attorneys' Association, Clark County District Attorney's Office. Mr. Graham indicated a large portion of the caseload he handled dealt with misdemeanors punishable by a maximum six months in jail and $1,000 fine. The person who was charged with a misdemeanor was not entitled to a court appointed attorney or a jury trial. Mr. Graham explained Nevada's gross misdemeanor penalty was punishable by a maximum of one year in jail and a $2,500 fine.
Mr. Graham submitted Exhibit C and pointed out the four constitutional amendments relating to criminal procedure. He indicated the fourth amendment spoke to probable cause in connection with arrest warrants, searches and seizures; the fifth amendment spoke to the grand jury and self-incrimination; and the sixth amendment related to the issue of a speedy trial.
Probable cause was the most crucial term to be dealt with, Mr. Graham opined, since it referred to facts and information sufficient to lead a reasonable person to believe a crime had been committed. He then continued with a review and explanation of the aspects of burden of proof, search warrants, arrest and reasonable doubt.
Mr. Graham then referred to the proposed amendment to AB 58 shown in Exhibit D, which added a further aggravating circumstance when considering a matter of homicide.
Mel Harmon, Clark County District Attorney, also spoke in support of AB 58. Mr. Harmon stressed the importance of strict laws which would result in punishment to fit the crime. He pointed out in 1972 the United States Supreme Court had struck down certain existing death penalty statutes. However, most Americans were in favor of the ultimate punishment for offenses of first degree murder; and Nevada had responded by adopting a statute which established certain categories for punishment by death.
Subsequently, Mr. Harmon explained, the Supreme Court had decided Nevada's law was unconstitutional. The Legislature had reacted by passing a law in 1977 which was currently in place and patterned after laws enacted in certain southern states such as Florida and Georgia. This law provided for a bifurcated system in which a trial jury would determine guilt and if the verdict was murder in the first degree, a second hearing would be conducted to set the penalty.
Since 1977, Mr. Harmon commented, the same nine aggravating circumstances had stood as shown in NRS 200.033. The reason for the bill was to expand this number to ten and eleven. The current statutory scheme required the state to establish at least one aggravating circumstance beyond a reasonable doubt before a trial jury could consider imposing capital punishment. Mr. Harmon added the jury must also determine the aggravating circumstance or circumstances outweighed any mitigating circumstance. At the penalty hearing the statutes, along with the court's legal instructions and argument of counsel, made it clear the jury did not have to return with the death sentence. Thus, concluded Mr. Harmon, circumstance ten reading, "The murder was committed upon a child who not had attained the age of 14 years" needed to be added to NRS 200.033.
Aggravating circumstance 11 would add the language which appeared in Exhibit D.
Mr. Harmon described a murder case in which a wife and two daughters were gruesomely murdered by the husband; yet Nevada did not have an aggravated circumstance in place which dealt with multiple murders. He emphasized there was a consensus within law enforcement that any time there were multiple victims in a single proceeding, the jury should automatically be able to consider this circumstance.
Chairman Sader questioned why aggravating circumstance number 2 would not apply in cases of multiple murders. Mr. Harmon replied the particular section had been interpreted to refer to defendants who had a prior criminal record.
Mr. Scherer referred to the proposed amendment of subsection 11 which read, "... of more than one offense of murder in the first or second degree," (Exhibit D) and questioned if the intent was to require at least one first degree murder conviction, and not to attempt to change the statute to apply the death penalty for multiple cases of second degree murder. Mr. Harmon agreed this was correct. In the case of multiple murders, a trial jury would generally always be instructed regarding both first or second degree murders. Depending on the circumstances in a multiple killing, however, it was theoretically possible for the trial jury to define one count had involved first degree and the other second degree murder. Mr. Harmon indicated he was not suggesting, in the context of the proposed amendment, the ultimate punishment should apply to anything but murder in the first degree.
Mr. Gibbons questioned what factors established the age of 14. This was an arbitrary decision which had been discussed with other organizations throughout the United States, Mr. Graham answered.
Mr. Bonaventura referred to page 2, line 14, of AB 58 and suggested adding, "The murder was committed upon one or more persons who had not attained the age of 14 years." Mr. Graham replied each one of the individual aggravating circumstances would allow a jury to consider it and the jury would need to delineate which aggravating circumstance would apply. He was concerned Mr. Bonaventura's suggestion might confuse the issue. Mr. Bonaventura questioned the possibility of adding the age limit to page 2, number 9. Mr. Graham explained number 9 was the senseless drive-by shooting situation as opposed to a premeditated situation.
Mr. Petrak referred to the child endangerment law which had been passed during the 1991 Session wherein the age requirement was 15. Mr. Graham had no objection to changing the age from 14 to 15 in order to be in conformance.
Thomas Pitaro, Past-President of Nevada Attorneys for Criminal Justice and Nevada Trial Lawyers Association, spoke in opposition to AB 58. Mr. Pitaro introduced Steve Dahl, Capital Defense Unit of the Clark County Public Defenders Office.
Mr. Dahl referred to amendment 11 and agreed there was currently a gap in Nevada law governing the circumstance. Regarding number 10, Mr. Dahl determined the language of the amendment would include any child abuse murder. Mr. Dahl explained up until five years ago, child abuse killings had been considered second degree murder because the perpetrator usually had not intended to kill the child. Two years ago this had changed when the Legislature passed a law amending the murder statute automatically making child abuse murder a first degree murder.
Mr. Dahl was concerned the amendment could make the law automatically an aggravating circumstance for which the death penalty could be sought against anyone convicted of a child abuse murder. He emphasized a trend could be set by district attorneys' offices seeking the death penalty in every case in which an aggravating circumstance could be found.
Anytime an aggravated circumstance was implemented, there would be a fiscal impact on local governments, Mr. Dahl pointed out. If a case was deemed to be a "death penalty case" a second attorney would be needed and this would create additional costs. Mr. Dahl concluded a situation for abuse was very likely if the bill passed,
Mr. Porter and Mr. Dahl discussed comments regarding "no intent to kill" in a child abuse scenario. Mr. Dahl replied in a felony murder role another kind of felony would need to be committed which was intentional. According to Mr. Dahl, in most child abuse cases there was no intent to commit a felony at the time it occurred.
Mr. Porter opined the discussion was not about disciplining a child who was subsequently killed, or opening a door on an elderly lady and accidentally killing her. In his opinion, Mr. Porter felt there was no distinction in the intent to kill in either case.
Discussion followed.
Mr. Carpenter asked about three cases which had involved the death penalty for a child's death. Mr. Dahl replied in the Lopez case the individual had tortured a child over a long period of time until she died. The Robbins case, which was similar, also involved torture. The Powell case had involved dropping a child onto a hard floor and killing her. Mr. Carpenter asked if circumstance 10 of the proposed bill passed whether the district attorney would automatically charge an individual with the death penalty. Mr. Dahl responded it would be left to the discretion of the district attorney's office.
Following further discussion and questions from committee members, Chairman Sader closed the hearing on AB 58.
ASSEMBLY BILL 59 - Revises definition of "robbery" to include theft in which force or fear is used as means of escape.
Vice-Chairman Porter opened the hearing on AB 59.
William Koot, Chief Criminal Deputy, Clark County District Attorney's Office, spoke in support of the bill and referred to Exhibit E, showing 15 separate crime report excerpts. Mr. Koot explained the District Attorney's Office was facing a large problem with trying to discern or decide whether a person who had committed a theft used force in order to obtain the property, or used force in order to effect his escape.
According to Mr. Koot, an increase in group thefts had occurred over the past two years involving more than two individuals. The current statute stated if the purpose for the force was simply to facilitate the escape, it was not robbery, albeit there was a danger to the proprietor, security officer, and/or the customers.
Mr. Koot commented robbery was a probational offense unless a weapon was used. If an offense was elevated from "petty larceny," or aiming a firearm to an "armed robbery," there would be a fiscal impact. Mr. Koot was unable to comment on how many cases would be affected on an annual basis.
Vice Chairman Porter requested Mr. Koot to explain the difference between a larceny and a robbery. Responding Mr. Koot explained a larceny was taking property (not necessarily from an individual) without the use of force or violence, i.e., shoplifting. Larceny from an individual was considered a felony. A robbery involved either force or violence. Vice Chairman Porter questioned if the value of an item taken during a robbery was significant. Mr. Koot replied petty larceny involved anything taken below the value of $250; grand larceny involved anything over the value of $250, unless it was a vehicle. In a robbery there was no difference.
Sgt. K. Hefner, Las Vegas Metropolitan Police Department, described a robbery incident involving four individuals, one of which was armed with a gun. According to Sgt. Hefner, the current statute "without the use of force" applied in this case; however, the use of force had been delayed and the intent was apparent.
Further examples were described by Sgt. Hefner. In robberies where the intent and use of force was delayed the threat level was the same. Sgt. Hefner stated they wanted the statute to be interpreted as being limited to what a person did immediately at the time of robbery.
Certain scenarios were described by Mr. Koot who concluded when litigation was considered, intent had to be determined. He suggested clarifying language on page 1, line 12, restating it to read, "Resist apprehension reasonably contemporaneous with the taking."
Mr. Gibbons asked Mr. Koot to distinguish between when "fear" actually became "force" or "reasonable fear" and vice versa. Responding, Mr. Koot said it was a matter for jury consideration. The statute was simply an either/or proposition whether it was "force" or "fear."
How did it distinguish from "reasonable force" and "reasonable fear?" Mr. Gibbons asked. The amount of force was immaterial, but fear became a reasonable question or reasonable man's standard, Mr. Gibbons and Mr. Koot agreed.
Mr. Koot said what they were trying to overcome with the amendment was to make it clear the force or fear could occur not just simultaneous with the taking, but shortly thereafter as well. Technicalities of different situations were further discussed.
Opening the hearing to the opposition, Tom Pitaro came forward
to testify. He introduced Michael Cherry, the current president of the Nevada Attorneys for Criminal Justice, a long-time and well-known criminal practitioner.
Essentially, Mr. Pitaro did not believe there was a need for the bill because current law already provided for it. Current law provided if a person used threat or force while committing a robbery, or if in close proximity to the robbery used threat or force in fleeing, this was deemed "robbery." The law did not need to be expanded in this area because the law already stated this. Considerations of "escape" and "apprehension" could continue on beyond a robbery, but they were not robbery. If a person entered a store with the intent to steal a pack of cigarettes, he could be charged with "burglary," a penalty of 1 to 10 years in the Nevada State Prison. If a gun was used the person could be given a 2 to 20 year penalty. Thus, the amendments would emasculate the current definition of "robbery" and attempt to make the crime a long-reaching crime that could go on for days.
Mr. Pitaro thought it was bad legislation to expand a law and rely upon prosecutorial authority and discretion to narrow the scope and use of that law.
Mr. Collins questioned "prosecutorial discretion." The bill would expand the definition of robbery to a scope that did not now exist, Mr. Pitaro stated.
Mr. Pitaro and Mr. Porter further discussed technical terms, the law and penalties. Following this discussion, Mr. Porter opined the proposed bill would define the use of force to facilitate escape was "robbery." Mr. Koot's proposed amendment would change the language on page 1, line 12, to add the words "contemporaneous with the taking."
Following a short discussion, Chairman Sader closed the hearing on AB 59 and opened the hearing on AB 61.
ASSEMBLY BILL 61 - Prohibits court-ordered psychiatric or psychological examinations of victim or witness in prosecution for sexual assault or sexual abuse of child to assess credibility as witness.
Ben Graham came forward to introduce Deputy John Lukens, chief deputy in charge of the sexual assault unit in the Clark County District Attorney's Office. Background remarks were made by Mr. Graham explaining the unit, its function and its makeup.
Chief Deputy Lukens told committee members each child sexual assault/sexual abuse case crossed his desk. AB 61, he stated, would not make his job any easier or any quicker. However, Deputy Lukens told the committee, "There is a long and tortured legal history of why this bill is necessary. . . . Currently, because of a recent Supreme Court opinion, almost every case in my office, . . . we now have motions [for psychiatric examinations] before the court . . . here are the factual scenarios. Factual scenario number one, the child who was abused and sexually assaulted is two years old. The defense attorney filed a motion to have her examined by a psychiatrist.
"Factual scenario number two, the little girl was 10. She was waiting for her aunt to come and visit. A stranger pulled up and abducted her -- threw her into the truck and they drove off. He sexually assaulted her in the car with his fingers, as he was driving. Fortunately they were caught a short time later in the desert. The defense now has a motion to have her examined by a psychiatrist.
"A young girl is 23. She is sexually assaulted. This Legislature and our county commission made a provision that victims of sexual assault are eligible for counseling compensation. At one time you recognized that other than just physical injury are done to victims of these crimes and you said, 'we will assist them and we will provide for them to obtain counseling.' And this young lady went and obtained that counseling. She was candid with her counselor and she told her counselor, 'Yes, I am also an incest victim. My father sexually assault me at age 16. I never told anybody. I am trying to deal with that.' Now in her trial where she is the victim, the defense attorney has made a motion to have her examined by a psychiatrist. And not only that, has made a motion to discover the notes of the psychologist and the therapist that had been seeing her. And now we have a choice. Does she deliver this information into the hands of her attacker and into the hands of the defense attorney and submit to a psychiatric exam paid for by her attacker or the taxpayers of the State of Nevada -- or do I drop the case?"
He reiterated the bill would not serve to make his job any quicker or any easier, but the very act of being asked for a psychiatric exam was unconscionably invasive. This bill would simply protect a person already victimized by the system.
Mr. Porter did not appear to believe the defense currently had the right to ask for this type of psychiatric examination. Deputy Lukens emphatically stated they did. He added the Supreme Court, by some very improvident language and very improvident opinions had given that right to every defendant.
As to Mr. Porter's question regarding the requirement for hearing in front of a judge, Deputy Lukens said the defense had to submit a motion to obtain the order, but the current status of the law made this almost automatic. The judge's discretion had been incredibly limited by the Supreme Court as a result of an opinion called Lickey v. State, he added. Mr. Porter asked Deputy Luken's opinion whether it would be appropriate to remove the Supreme Court rulings and let a judge rule on whether to allow the defense to ask for a psychiatric examination. Deputy Luken did not answer this directly, but opined this would only be a "fall-back" position.
Mr. Porter argued the bill was very broad, and there could possibly be circumstances in which a psychiatric examination was perfectly appropriate. Deputy Lukens countered Mr. Porter's suggestion by admitting there were very skillful defense lawyers who could make a credible argument to a judge in 99 out of 100 cases. Deputy Lukens maintained it should be an absolute bar; however, absent the Legislature granting the absolute bar, he urged them to give victims some protection by stating there had to be a "showing of good cause" -- something out of the ordinary -- as to why such a request was logical and reasonable.
Mr. Carpenter questioned in what manner the defense would use a psychiatric report. Deputy Lukens pointed out if there was evidence of any previous sexual problem, the victim could well be discouraged by the thought this would be revealed to the defense and her attacker. When Mr. Carpenter continued to be unclear, Deputy Lukens adamantly stated, ". . . and you will find psychologists and psychiatrists saying one thing here and one thing there, depending on who paid them. In this particular case I am not objecting to it because of what might be said. I'm objecting to it because it is not my right to say 'I'm sorry you've been a victim of this crime, I'm sorry you're raped, but now we're going to have somebody paid by your attacker look into your mind!' Don't you think that woman or that victim or the parent of that child has the right to say, 'no, you're not'. . . ."
Mr. Bonaventura objected to language on page 1, line 5, ". . . his credibility. . .". He thought this should read "his or her." Deputy Lukens agreed.
Mr. Graham pointed out it was sufficient for the defense to be able to cross-examine the victim at trial.
The Executive Director of Community Action Against Rape (CAAR), Renata Cirri, came forward. She recalled perhaps 15 years ago there had been a law on the books dealing with rape. However, at that time there were very few victims who chose to come forward as the horror stories were enough to keep them away. Her agency labored under the difficult role imposed by television and word of mouth, which portrayed victims in an unfavorable light. Ms Cirri reported National statistics showed for every rape crime reported, ten went unreported. Last year they had handled 550 cases. Multiplying this by ten gave an inkling of what was going on in Las Vegas.
This was the only crime, she stated, in which the victim had to prove she was innocent of causing it to happen. Ms. Cirri questioned whether the psychologist or psychiatrist chosen by the defense was truly qualified. Did these people have the specialized skills to work with sexual assault victims? The examinations took maybe an hour. What kind of understanding could be obtained in an hour? she inquired.
There being no questions for Ms. Cirri, Sgt. Gwendolyn Pascoe, Las Vegas Metropolitan Police Department Sexual Assault Unit, came forward to express her support for AB 61. (Sgt. Pascoe also submitted Exhibit F at the end of the meeting.) She said this year alone, they had investigated close to 1,700 cases. Not all 1,700 cases went to the District Attorney for prosecution. She said it was their job to investigate the crime, gather the facts and try to determine whether a crime had been committed. With sufficient evidence, it would then be submitted to the District Attorney. Sgt. Pascoe said, "I feel asking the victim to undergo one more thing is utterly ridiculous."
Opposition to AB 61 was heard from Tom Pitaro. He introduced Patricia Justice, member of the Clark County Public Defender's Office and an experienced attorney in this area, Deborah Owen, an experienced attorney in the Clark County Public Defender's Office, and James Jackson, Nevada State Public Defender.
Ms. Justice opened by agreeing no rational person could be in favor of any form of abuse, whether sexual, physical or emotional. However, feelings of sympathy for the victims should not overwhelm the law and the client's right to a fair trial. She spoke to the sometimes unfounded accusations of a child in cases of sexual abuse. Such accusations brought suffering and loss to the accused. Ms. Justice submitted a copy of a memo written by Deputy Lukens in December, 1992 which read, "In a relatively few cases such an examination may be warranted. . . .". This memo was submitted for the record as Exhibit G.
Speaking to the statistics, Ms. Justice told the committee in the last 10 years the Clark County Public Defender's Office had handled approximately 1,000 clients. Ms. Justice stated a judge had to be convinced a psychiatric examination was necessary. According to their records, in 16 of those cases motions had been made for a psychiatric examination. The judge had conducted a hearing each time and only 5 times was the psychiatric examination ordered. She stated there was no abuse to cure in this area, and "fundamental fairness" dictated this bill had to be defeated.
Deborah Owen then spoke of the number of times the psychiatric examination had been asked for. She said in the last 18 months she had been involved in approximately 10 sexual assault cases, with both adult victims and child victims. In that 18 months, she had asked for a psychiatric evaluation only one time. She said her client had been charged with sexually molesting two sisters both under the age of 10 years. At the preliminary hearing, Ms. Owen said she had noticed the children and their mother engaging in peculiar behavior of laughing and giggling. After investigation they had found the oldest of the children had witnessed their father commit suicide. The children had also made false accusations against other people, and the oldest child had been found in bed with one of the mother's friends. Drugs appeared to be present in the home. She said it appeared clear the children had been molested, but there was a question as to who had molested them.
In this circumstance Ms. Owen said she had filed a motion for a psychiatric examination, which had been crafted very unintimidating and unintrusive. An absolute bar was inappropriate and to allow the District Attorney's Office to circumvent a Supreme Court decision was also inappropriate.
Chairman Sader noted the different positions between the proponent and opponent on how easy it was to get a court order for such an examination. "What are the legal standards the court uses in Nevada today to evaluate whether to order a psychiatric examination of a victim? And, do those standards incorporate any consideration of the victim's distress in having the examination take place?" he asked.
Ms. Justice indicated the defense had to present substantial reason to convince the judge. Chairman Sader asked what the criteria was? Ms. Justice opined this varied.
James Jackson, Nevada State Public Defender, came forward to attempt to answer Chairman Sader's question. He explained the Lickey Supreme Court finding which stated the district court had to give consideration to such a motion in such a case. They had not set specific standards, but did indicate the proper vehicle was for the defendant to file a motion and set forth the reasons in that motion. The court would then consider, at a hearing if necessary, whether the psychiatric examination should occur. Mr. Jackson pointed out he and Deputy Lukens disagreed with the reading of the Lickey case.
Sixth amendment standards of the right to confront the accuser were discussed. Mr. Pitaro further explained the legal procedures.
Speaking again to Chairman Sader's question, Deputy Lukens stated past law was different from what it now is. He said there were no standards under the Lickey opinion. If there were no standards, Chairman Sader asked why the court had denied the motion in 11 out of 16 cases. Deputy Lukens implied Ms. Justice's figures had somewhat misled the committee. He said her figures were based on cases before Lickey.
In an effort to make it clear, Chairman Sader said, "Post-Lickey. When was Lickey decided?" Deputy Lukens said Lickey had been decided in July, 1992, and added the effect of Lickey had not been felt until approximately November, 1992. If it had not been for this opinion, AB 61 would not have been submitted, Deputy Lukens stated. He agreed with Chairman Sader it was his view the court had very little guidance and discretion, and generally these kinds of motions had to be granted. Because of other legal requirements, Deputy Lukens opined defense attorneys were almost forced to file this motion in almost every case.
Chairman Sader asked Ms. Justice and Ms. Owen whether it was their view the Lickey decision changed the law regarding motions in such a fundamental way the court had no guidelines on how to decide them. They both said, "No." Ms. Justice thought the court was very cognizant of the child; thus, it took compelling reasons for the judge to grant the motion. Chairman Sader then asked how often Ms. Justice had asked for a motion since the Lickey decision. She replied she had not asked for it since that time.
Turning to Ms. Owen, Chairman Sader noted the prosecution's allegation the defense counsel were now routinely using this motion in these kinds of cases. How often was this occurring? Ms. Owen said she could not speak for anything outside the Public Defender's Office. She agreed with Deputy Lukens there were problems with the Lickey decision, however, an absolute bar was not a vehicle for remedying this.
Chairman Sader remained confused by opposing testimony. Turning to Mr. Jackson, Chairman Sader asked if he agreed it was only the exceptional circumstance in which they sought such a motion. Mr. Jackson replied in the State Public Defender's experience they were not asking for these motions any more often than prior to the Lickey decision as they could not see the standard had changed.
Mr. Pitaro agreed with Mr. Collins a prosecutor also had the privilege of asking for a psychiatric examination, but it was only when a defendant asked for a psychiatric examination the prosecution objected.
Mr. Collins also questioned the five cases in which an order had been obtained by the defense for a psychiatric examination. Were they adults or children? Ms. Owen said two were adults and three were children.
Again referring to the five cases evaluated, Mr. Petrak asked if this had made a significant difference in the results. Ms. Owen said she could not say in these specific cases. Ms. Justice spoke up saying she could only speak to two of the cases. One case had been resolved and one was still pending.
Ms. Smith opined there was a big difference between getting counseling and undergoing a psychiatric examination. Ms. Owen said some of the counselors selected for children by the District Attorney's Office made periodic reports to the District Attorney. Consequently there was an ongoing relationship established between counselors and the District Attorney's Office. Both Ms. Owen and Ms. Justice agreed the determination whether a victim was lying or affected by other emotional problems could only be obtained by a psychological examination, not by cross-examination.
Mr. Bonaventura asked Mr. Pitaro to give him an estimate of how many times a psychiatric examination would be requested out of 10 cases. Mr. Pitaro estimated they would probably present the motion in two or three cases. Mr. Bonaventura then put the question to Deputy Lukens. Deputy Lukens responded it would more likely be ten times out of ten cases.
Mr. Gibbons noted he was curious after listening to the testimony. He asked what standards could they envision that would be necessary to keep the bill outside the grounds of being challenged under the sixth amendment. Mr. Pitaro said the court with its inherent power could deny a motion for a psychological or psychiatric evaluation based upon the failure of the proponent of the motion to show good cause as to why the motion is necessary. Legal aspects of discretion, standard of review, abuse of discretion, good cause and appeal were discussed between Deputy Lukens, Mr. Pitaro and Mr. Gibbons.
The hearing was closed on AB 61 and opened on AB 69.
ASSEMBLY BILL 69 - Requires courts to give precedence to certain cases involving sexual assault or in which victim or witness is a minor.
Mr. Graham again made introductory remarks in favor of AB 69, offering the rationale for a "speedy" trial for victims of sexual assault.
Deputy Lukens said AB 69 was simply his request for aid in moving the cases through the system. AB 69 would give this particular type of case preference without depriving defendants of any of their rights.
Deputy Lukens cited one rape case which had been pending for three years, where the victim had felt it necessary to relocate several times. Mr. Collins did not think it necessary to treat this type of victim in any different manner than any other type of victim. Deputy Lukens acknowledged the truth of the statement, but added the Legislators had said, in effect, they intended to treat children differently, and treat certain categories of victims differently, as had been done with victims over 65 and children under 14. There was a rational basis for doing this. Children needed "closure" in order to get on with their lives, Deputy Lukens stated.
Also supporting AB 69, Renata Cirri told committee members when a victim of sexual assault chose to prosecute there was initially the problem of a prolonged investigation due to overload in law enforcement; this led to prolonged agony for the victim. In the interim the defendant would be out on bail. Sometimes the victim was harassed. Each time there was a delay there would be a peak leading to a valley. Ms. Cirri stressed she had been dealing with these kinds of cases for 18 years and in that time she had seen a number of cases destroyed simply because the defense had prolonged them to the point everyone wanted to quit.
Chairman Sader asked approximately how long it took to bring one of these cases before the court in Clark County. Mr. Graham replied it would be at least six months. Mr. Pitaro agreed.
In opposition, Mr. Pitaro said AB 69 would basically allow others to set the court calendar. Right now the law required all preliminary hearings to be set within 15 days unless good cause was shown. To preserve their rights, the court gave precedence to defendants in custody. The normal course of a preliminary hearing in Las Vegas varied from four to six weeks. If the prosecution needed to expedite things, with good cause they could ask the court to hear it within the 15 days.
Mr. Porter reminded Deputy Lukens and Mr. Pitaro AB 79 had already been passed out of the Assembly. This bill read, "The court may allow a videotaped deposition to be used instead of the deponent's testimony at trial if: 1) In the case of victim of sexual abuse, as that term is defined in NRS 432B.100, before the deposition is taken, a hearing is held by a justice of the peace or district judge who finds that: a) The use of the videotaped deposition in lieu of testimony at trial is necessary to protect the welfare of the victim; and b) The presence of the accused at trial would inflict trauma, more than minimal in degree, upon the victim. . . .". If AB 79 passed out of the Senate, Mr. Porter wondered if the preservation of testimony would alleviate the concerns of both defense and prosecution.
Deputy Lukens said, "No." He said he would have to show cause why he needed to videotape the deposition and he was not certain he could overcome this. If the law could be modified to allow depositions to be videotaped in all cases, he assured everyone he would do this.
Mr. Anderson questioned whether there would be any objection to allowing the same privilege to the defense. Deputy Lukens said of course not.
Mr. Pitaro maintained the prosecution had the right now to ask the court to bring the case on more speedily; but AB 69 did not truly say this. There was an infringement on the court's right to set the calendar. He also suggested this would have a tremendous fiscal impact on county and state governments in providing counsel through the public defender's office.
Chairman Sader questioned Deputy Lukens, suggesting the bill dealt with a whole range of offenses having nothing necessarily to do with child sexual assault or rape of any kind. Deputy Lukens told Chairman Sader the percentage of cases in which he had actually physically detained a minor as a material witness was very small. To justify the request, Deputy Lukens cited the example of a situation in which a child had relatives outside the state and the prosecution was keeping the child in Child Haven for purposes of being able to testify. This was an imposition on the minor, an imposition on the county and it did no one any particular good.
(Sgt. Pascoe submitted Exhibit H in support of AB 69 at the end of the meeting.)
Before adjourning the meeting, Chairman Sader told committee members they would vote on the bills the following day, even if the meeting ran late. Regarding bills heard, Chairman Sader said he thought AB 58, AB 59 and AB 69 were in a position to be voted on as they had the testimony and the facts with which to make a decision.
However, Chairman Sader noted there appeared to be a major factual difference between the proponents and the opponents of AB 61. The prosecution appeared to think the practice of bringing motions would happen in almost every case after the Lickey decision. This was different than the opinion of the defense. Mr. Sader said he did not know exactly how to resolve the question. Mr. Pitaro said he would be happy to confer with Deputy Lukens and Mr. Graham to reach a closer consensus of the severity of the problem.
There being no further business, the meeting was adjourned at 5:10 p.m.
RESPECTFULLY SUBMITTED:
Iris Bellinger
Committee Secretary
??
Assembly Committee on Judiciary
Date: February 8, 1993
Page: 1