MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
April 16, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 11:45 a.m., on Friday, April 16, 1993, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator R. Hal Smith, Vice Chairman
Senator Lawrence E. Jacobsen
Senator Mike McGinness
Senator Dina Titus*
Senator Raymond C. Shaffer
Senator Ernest E. Adler
STAFF MEMBERS PRESENT:
Bob Erickson, Research Director
Marilyn Hofmann, Committee Secretary
GUEST LEGISLATORS PRESENT:
Senator Lori L. Brown
OTHERS PRESENT:
Ben Graham, Nevada District Attorney's Association
Lieutenant (Lt.) Jim Nadeau, Washoe County Sheriff's Office
Two bills were scheduled for hearing, Senate Bill (S.B.) 259 and Assembly Bill (A.B.) 279.
SENATE BILL 259: Authorizes person who receives wire or oral communication to record communication under certain circumstances.
ASSEMBLY BILL 142: Expands cases in which interception of wire or oral communications may be authorized.
ASSEMBLY BILL 199: Creates crime of stalking and aggravated stalking.
* Committee member only present for a portion of the meeting. This is noted in the body of the minutes.
Senator James indicated this was a second hearing on S.B. 259. He said a proposal had been made to deal with the issue in the context of A.B. 142, which already passed the committee. Senator James invited Senator Lori L. Brown, sponsor of S.B. 259, to present suggested amendments. Those amendments are set forth on Exhibit C.
He reminded the committee A.B. 142 was a bill covering "wiretapping," whereas S.B. 259 involved one-party consent to the taping of a telephone conversation.
Senator Brown referred to Exhibit C and said one amendment would limit the crime involved to stalking or aggravated stalking. She said there was concern regarding having the bill relate to anyone who was the victim of a crime. Senator Brown stated the person receiving the communication would have to have "some reasonable belief there will be something said in the communication...that will not necessarily prove guilt, but would establish and relate to an element of the crime." Senator Brown said there was also a concern that individuals would be the ones determining what to tape and what not to tape, "...the person receiving the communication...would have to, within 24 hours, go to the police and get an order authorizing the interception of communications." She said the end result would be the ability of the person to use the tape "in a criminal prosecution only...in the crime of stalking or aggravated stalking."
Senator Titus entered the room at 11:55 a.m.
Senator Brown stated:
Right now, if somebody calls my house and is harassing me ...or in some way stalking me...it is my house and I am receiving this call...but if I turn on my tape recorder and go to the police with proof...I cannot use it in court, but I am a felon, because I am not allowed to tape a conversation...."
Senator Brown said she has checked on the ramifications if a person attempted to use the proposed law for reasons other than a criminal prosecution and indicated it appears there is nothing in the bill which would prevent a person from bringing a civil lawsuit if it were used for purposes of slander, etc. Senator Adler agreed, saying if a taped communication were used "outside the scope of the statute" the person who taped the conversation would be guilty of a felony.
Senator James referred to section 8, Exhibit C, which cites A.B. 199.
Senator Brown questioned the advisability of the wording, since there are more bills which will be introduced concerning the crime of stalking and aggravated stalking. Senator James said he and Assemblyman Bob Sader, chairman of the Assembly Committee on Judiciary, had agreed A.B. 199 would be the stalking bill which would be passed in this session of the legislature.
Senator Jacobsen asked if there was a time limitation on any order authorizing a taped communication. Senator Brown reiterated the provision that a court order should be requested within 24 hours. She said there should be additional amended language to cover the possibility that the court might take longer than 24 hours to issue the order.
Senator Brown stated a person also has the right to request a "phone tap" by the police if there appears to be probable cause and an order can be issued. She said this legislation would cover a period of time between the onset of the telephone calls and such a request.
Senator James asked Senator Brown if there was something she perceived regarding stalking which should authorize one-party consent in that circumstance, but not in other circumstances. Senator Brown answered she had talked to many persons who felt strongly that any time a person might commit a crime against someone on their own telephone, they should be allowed to tape that communication. She added a threat can be determined by the tone of someone's voice. Senator James agreed tape communications would be an aid to prosecution in cases of stalking. Senator James noted there was no one else present in the committee room who had indicated support for S.B. 259 and asked Senator Brown if she had talked with district attorneys or the attorney general. Senator Brown stated the original request for the bill came from a district attorney in Las Vegas. She said he was not in favor of the proposed amendments and "wanted to go for the whole thing," which others felt was too broad and could not pass. Senator Brown added that district attorney did not testify in front of the committee at any time.
Senator James stated if this bill were to pass, it would be the first time "one-party consent" has been allowed in Nevada. He said people who are concerned about such a bill would need a "big justification" in order to support it and added there would have to be a large amount of support from the law enforcement community. Senator Brown stated it had been communicated to her "...that the legislature keeps making tougher and tougher laws on crimes involving domestic disputes ...similar to what we are doing in stalking," but added "we can't ever prove it because you're not allowed to use most of the evidence which is obtained." Senator Brown also said many people are "scared about third-party consent" because they think it means one person could tape a conversation between two other people. Senator James pointed out the focus of the legislation is "one-party consent," not "third-party consent."
Senator Titus said she appreciated Senator Brown's concern and also appreciated her attempt to "narrow down" the legislation, but stated she could not support the bill. Senator Titus indicated she could support adding stalking to a list of crimes which allow applying for a wiretap. She added she believed if "one-party consent" were allowed in stalking cases, other crimes would soon be added and "the list would become longer and longer." Senator Titus continued:
You say the use is limited to a case with a trial...but you can't 'unring a bell.' Once you tape a conversation... suppose this person is never convicted of the 'alleged crime.' In the meantime, you have put that information out there and you can't back...."
Senator Titus stated if the provisions were placed into the wiretap statute she would support it, otherwise she indicated she would have to vote against the bill. Senator Brown answered if S.B. 259 did not pass, she hoped the provisions would be placed into the wiretap statute. Senator James also complimented Senator Brown on her attempt to revise the legislation but indicated the bill probably could not be limited to stalking. He said Senator Titus' position was cogent and added, "How does this committee or any other legislature in the future tell all the supplicants who come with other crimes which are hard to prove...they can't make that distinction." Senator Brown pointed out a "third-party wiretap" would give the listener access to all telephone calls, not just those concerned with a possible crime. She said she would feel her privacy was better protected if she could choose which of her own conversations were necessary to prove a crime. Senator Brown added allowing the police to hear everything she says to everybody "...is a lot more intrusive than letting me decide what I want the police to hear."
The next to testify was Ben Graham, Nevada District Attorney's Association. Mr. Graham stated the position of the association was set forth in the earlier hearing on the S.B. 259. He said their position has always been that under certain circumstances one-party consent was reasonable. Mr. Graham added they realized this "was not on the horizon at this time." He said he felt badly about Senator Brown "expending effort and energy to attempt to work out something that at this stage is not politically viable." Mr. Graham continued:
I think it is ludicrous...if you decide to record somebody threatening you, you have committed a felony. The problem is, how do you sort that out...without opening the door and going on from there? ... We understand the sentiment of the committee and the legislature as a whole not to open this door.
Senator Adler stated:
I have a problem with what we are doing in this legislature. We are passing out a stalking bill in the assembly which is a gross misdemeanor, but if I am a victim of a crime and I press my recorder on my telephone...I can be prosecuted for a felony...but the person who is threatening to kill me...can only be prosecuted for a gross misdemeanor. That's brilliant....
Senator Titus asked how often a person would be arrested for a felony under such circumstances. Senator Adler answered he believed it could happen. He said the courts could disallow the use of the tape in criminal proceedings, but delivery of the tape to law enforcement should not subject a person to felony prosecution. Senator Titus asked Senator Adler why he had not requested a bill draft which would change the penalty for "inadvertently taping" a conversation. Senator Adler answered he has brought the matter up several times in the past. "...and nobody seems to care." Senator James said there was another side to the problem and stated, "Maybe the statute has some logical basis in the notion that what is said in a telephone conversation is hard to interpret...." Senator James agreed it would "open the door quite a way," and should be looked at in a comprehensive fashion, since there are other areas in the statute which would be affected. Senator Adler reiterated the problem existed if a person did not know the law and used their answering machine, thereby committing a felony. He said he believed the penalty for inadvertently taping a conversation is "way out of proportion to the crime."
Senator James stated he would bring S.B. 259 up in a work session after A.B. 199 has been voted upon by the committee. He said at that time they would address Senator Titus' suggestion that they consider adopting a part of the amendment set forth on Exhibit C, which would deal with the crime in the context of third-party, judge authorized wiretapping.
There was no further discussion on S.B. 259, and Senator James opened the hearing on Assembly Bill (A.B.) 279.
ASSEMBLY BILL 279: Authorizes peace officer to issue citation to defendant rather than arresting him on certain warrants issued upon misdemeanor offenses.
Testifying on the bill were Ben Graham, Nevada District Attorney's Association and Lieutenant (Lt.) Jim Nadeau, Washoe County Sheriff's Office. Mr. Graham said passage of the legislation will give police offices discretion regarding whether or not to "throw somebody in jail." He said under the current law, if an outstanding misdemeanor warrant exists, the officer is mandated to take a person to jail if they are found. Mr. Graham stated if such a person was not cited for failure to appear, has valid identification and indicates he or she will appear on the old warrant, the officer at his discretion need not arrest that person.
Lt. Nadeau stated there are many times warrants are issued without the knowledge of the person involved. He added with respect to a misdemeanor warrant, in most cases a person would be booked and immediately released. Mr. Nadeau stated passage of A.B. 279 would expedite the process by giving the police discretion whether or not to make an arrest.
There was no further testimony on A.B. 279 and Senator James agreed to accept a motion.
SENATOR SMITH MOVED TO DO PASS A.B. 279.
SENATOR SHAFFER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
SENATE BILL 7: Provides for transfer of person arrested on misdemeanor warrant from local detention facility to law enforcement agency that obtained warrant.
Senator James stated the assembly had amended the bill and following discussion, the committee agreed with the amendment.
SENATOR McGINNESS MOVED TO CONCUR IN THE ASSEMBLY AMENDMENT TO S.B. 7.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
There being no further business to come before the committee, the meeting was adjourned.
RESPECTFULLY SUBMITTED:
Marilyn Hofmann,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
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Senate Committee on Judiciary
April 16, 1993
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