The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 9:42 a.m., on Tuesday, March 23, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator Mark A. James, Chairman

Senator Jon C. Porter, Vice Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

STAFF MEMBERS PRESENT:

Janice McClure, Committee Secretary

OTHERS PRESENT:

Ben Graham, Lobbyist, Nevada District Attorneys’ Association

Gemma Greene, Lobbyist, Washoe County District Attorney’s Office

Senator Maurice Washington, Washoe County Senatorial District No. 2, stated S.B. 395 enhances the parole process for Category A felons. He said the victims advocacy group has asked that duplicate photographs be placed in the folders of the convicted felons when they come up for parole in order for the parole board commissioners to have the opportunity to see the scenes of the crime. He continued subsection 3 provides the photographs can be excluded from the felon’s folder if the victim does not want the photographs included.

Adriene Angelini, President, Victims In Crisis Turmoil Or Recovery (VICTORY), said she wants the parole board to have the best understanding of what the offender has done in the past and what he is capable of doing again. She stressed that using photographs from a crime scene will give a much clearer picture to the parole board of what a convicted felon is capable.

Chairman James agreed pictures would be a good reminder of the nature of a crime. Ms. Angelini stated that her father was shot and killed in May 1990 and she would want the photographs of the crime to be brought before the parole board.

Jim Weston, Deputy Chief, City of Reno Police Department, said in many cases after sentencing occurs the people who sit in judgment on parole often may not have been in the community when these crimes have occurred; may not have had any involvement with the media attention; and may not really know the notoriety of the case before them other than what they have in the folder before them. He stressed reading a police report of a murder case is somewhat different than actually seeing the crime scene photographs. Deputy Chief Weston submitted Exhibit C, suggesting amended language to S.B. 395 which would narrow down the crimes for which photographs would be provided. He furthered he would like the language deleted pertaining to the victim deciding if photographs should be included in the convict’s folder.

Chairman James asked Deputy Chief Weston why he wanted the language changed to be "original or duplicate photographs depicting the injury to the victim(s) are available." Deputy Chief Weston replied the language was vague as originally written because in many cases there are 50 to 100 crime scene photographs and he just wanted to focus on the pictures the parole board needs to see conveying what the convict actually did. Deputy Chief Weston continued this language would also reduce the workload of the district attorney’s office because they would not have to filter through so many pictures.

Chairman James said he thought Deputy Chief Weston’s suggested language was too limiting, because with regard to the Manson killings, pictures were not shown of the actual victims, but other pictures of the crime scene were gruesome enough to depict the horridness of the murders. Deputy Chief Weston said he was concerned about the fiscal note.

Senator McGinness asked if after 10 or 15 years the pictures would go to the parole board to be maintained in a file.

Carlos Concha, Chief, Division of Parole and Probation, Department of Motor Vehicles and Public Safety, said at the time of sentencing an offender the district attorney provides the file to the Division of Parole and Probation so it can complete a pre-sentence investigation report. He continued numerous photographs are included in the files and during the investigation process the Division of Parole and Probation identifies photographs to be included in the file and sends that file to the parole board. He stated the photographs are in the file for the parole board to review 10 years later when the inmate is eligible for parole.

Senator Care asked what a parole board considers. He said it seemed the parole board would have the discretion to examine anything.

Mr. Concha replied that currently the parole board does not have photographs in the file unless the district attorney or someone else makes a special effort. He said the file reviewed by the parole board is the data compiled by the Division of Parole and Probation at the time of sentencing.

Senator Porter asked if a broader statement might be required regarding photographs because of technology that may be available such as videotapes. Deputy Chief Weston said the new technology was discussed and he suggested a color copier could make a very high resolution inexpensive copy that would be permissible.

David M. Smith, Management Analyst, State Board of Parole Commissioners, Department of Motor Vehicles and Public Safety, said the board has no objection to S.B. 395 and welcomes any input and information that can be provided in making parole decisions.

Mr. Concha expressed concern on the fiscal impact of S.B. 395. He said if the language was changed to facilitate and coordinate the process as discussed, his fiscal note would probably be eliminated. Chairman James asked what was the fiscal impact. Mr. Concha replied the fiscal impact is over $100,000. Chairman James asked to what part of the language Mr. Concha referenced. Mr. Concha replied section 1, subsection 2, paragraph (b), which refers to original and duplicate photographs. Mr. Concha said that would require all of the photographs and some crimes involve 100 to 200 photographs. He pointed out it costs about $12 to copy a photograph. He said to coordinate notification to the victims and inquiring whether or not they want the photographs included as referenced in section 1, subsection 3, would require a separate body to coordinate the effort statewide.

Chairman James suggested instead of changing the language, to add a sentence on page 2, at the end of line 2, "For purposes of this section, it is sufficient if a representative group of photographs, or representative sample of photographs, which depict the injury to the victim are submitted." He said the Legislative Counsel Bureau could come up with language to that effect and then crime scene photographs could be used if they are relevant, but it makes it clear that not every photograph has to be copied. Mr. Concha agreed that would be appropriate in order to greatly reduce the fiscal impact.

Senator Washington said when the bill was redrafted the language was inadvertently changed in that the bill was supposed to provide for a sample of the photographs, not an entire original set of the photographs.

Senator Wiener inquired if the photographs are returned to the file each time a victim indicates he or she does not want the photographs reviewed by the parole board with the idea the victim would have to object each time a parole hearing came up.

Mr. Concha said the photographs are in the file, so if the victim does not want the photographs shown the parole board already has access to the files. He said the question is should the photographs be torn up or left in the file? He continued that most likely it would be better not to destroy the photographs and keep them in the file for future reference.

Senator Wiener said she was concerned if the photographs were destroyed the parole board would not have everything it needs to do its job. Mr. Concha said destruction of the photographs would create a public safety issue because the type of offense committed could be committed by the same offender on another victim. He added the Division of Parole and Probation is trying to protect not only the victim, but all potential victims.

Deputy Chief Weston said after a person has been convicted and gone to prison the file becomes public information. He said the public can have the information through the media, but the parole board cannot have the photographs if the victim does not want them to have them. He added this provision does not make sense because the parole board has a significant impact on the decision to release the offender back into the community where the public does not have an impact, but has a right to see the pictures. He said it would be more in the public’s interest to take out the provision of the victim denying the parole board access to the photographs.

Senator Wiener asked what kind of situation would prompt a victim to not want the parole board to see the photographs. Ms. Angelini replied there could be a situation of a domestic batterer and the wife is afraid to permit inclusion of the photographs with the file to the parole board for fear she will be re-victimized by the offender.

Senator Washington said the language on page 5, line 2, was supposed to be deleted in the bill redraft because it was decided that notification of the victim was not in the best interest of the bill. He added the language on page 2, lines 6 through 9, was supposed to be changed for what was best for the public. He said what Deputy Chief Weston and Mr. Concha are requesting makes good sense.

Ms. Angelini said she understood and respected the fiscal impact, but believed human lives have priority over the fiscal impact. She furthered if her father’s killer was to come before the parole board she would want the photographs included, because if the killer was to be released there is a really good chance that he would kill someone else and she did not want that to happen to any other family. Chairman James said that was very well put and he has been advocating that for the last four legislative sessions. He added the fiscal cost in the near term has to be balanced with the cost of crime in society.

James F. Nadeau, Lobbyist, Captain, Washoe County Sheriff’s Office, said he supported S.B. 395 and added the Washoe County Sheriff’s Office has been working closely with Ms. Angelini to develop this legislation. He said he wants the parole board to understand the implications of the crime and the person behind it.

Chairman James asked Brad Wilkinson, Committee Counsel, Legal Division, Legislative Counsel Bureau, to add some language about selecting photographs that depict the injury and the crime without overburdening the fiscal impact. Captain Nadeau pointed out with reference to the Manson case that besides photographs of the victims, the other aspects of the crime such as the writing on the wall were important in understanding the concept of what really happened. Chairman James said that is why he did not want to limit the language to just the injury to the victim, but wanted the photographs included that show the nature of the crime.

Mr. Smith pointed out that S.B. 395 refers to conviction of a crime constituting a Category A felony, yet Category A felonies do not encompass the only violent crimes. He furthered there are also Category B felonies relating to crimes involving substantial bodily harm. He continued Category A felonies also include child pornography wherein photographs would not be appropriate to be provided to the parole board. He suggested taking out the Category A language from the bill and add the language "a conviction of a violent crime resulting in bodily harm to a person."

Senator Porter said he was disappointed these steps were necessary to require photographs be provided to the parole board, knowing of a case where a crime victim had requested help from a couple of agencies and did not receive responses. He said he supported S.B. 395 and appreciated Senator Washington bringing it forward, but added it was unfortunate this step had to be taken because the agencies did not voluntarily comply.

Pat Hines, Concerned Citizen, said the parole board’s duty is to look at an offender 15 years after a crime to determine how that person has changed. She said she saw nothing wrong with the inclusion of photographs, but she added she was concerned with anyone bringing in photographs at the time of parole that were not a part of the initial investigation. Ms. Hines furthered although the severity of the crime may have been very bad at the time it was committed, she hoped the parole board would take into consideration not just the photographs of the crime, but also consider the crime may have been done under the influence of drugs which may no longer be a problem with that person.

Chairman James clarified the existing law pertaining to victims submitting additional information was not being changed by S.B. 395. He added the photographs of a crime would be considered by the parole board as part of a total picture and the bill is written with the understanding the parole board has the current status of the offender.

Ms. Angelini said S.B. 395 is to enhance the parole board’s decision, but whether the crime was committed under the influence of drugs or alcohol should not be that much of a factor. She added her father’s killer had a lengthy criminal history that probably started when he was 17 years old, including sexual crimes up to the murder of her father. Ms. Angelini said if parole boards in other states where her father’s killer had been convicted previously would have taken into consideration the pattern of the killer’s crimes, she felt her father would still be alive today.

There being no further testimony, Chairman James closed the hearing on S.B. 395 and opened the hearing on S.B. 400.

Michael Pescetta, Attorney, said the amendment proposed in S.B. 400 was recommended by the Nevada Supreme Court. Mr. Pescetta submitted case law (Exhibit D) in support of S.B. 400. He clarified the adoption of S.B. 400 does not necessarily reflect anything about the constitutionality or legality of the previous jury instruction. Mr. Pescetta stated by adopting this new definition the Legislature would not be suggesting any position about the status of the prior jury instruction, except that it was adopted in 1889; the language is somewhat antique; and it has been criticized in a number of judicial decisions, although it has not been held unconstitutional. He said he believed the Legislature has the opportunity to decrease the amount of litigation and to minimize the possibility of reversible error in criminal cases by adopting this bill.

Senator Wiener noticed there was a requirement that specific instruction not be given except upon request. She asked if this is how it is done now and why the jury has to ask for a definition versus just being told "reasonable doubt."

Mr. Pescetta replied that currently the statutory instruction has to be given and there is no constitutional mandate under the United States Constitution that any definition of reasonable doubt be given. He said traditionally in Nevada it has been the statutory definition and the current state that if the jury itself or either of the parties request the instruction it has to be given.

Senator Care said part of the instruction in S.B. 400 provides a juror may have served on a civil jury. He asked if by having that provision Mr. Pescetta was convinced a juror would not be confused in a criminal case who may have sat on a civil jury.

Mr. Pescetta said when the jury is being selected for a criminal proceeding it is routine in most cases for the judge to ask the prospective jurors if they ever served on a jury before and if it was a civil jury or a criminal jury. He indicated if any prospective juror has served on a civil jury it is normal for the judge to explain to the juror the standards for a civil proceeding are by a preponderance of evidence standard, and in a criminal proceeding it is a much higher standard.

John C. Morrow, Lobbyist, Washoe County Public Defender, said there are certain jurisdictions that do not have a reasonable doubt instruction, but just instruct the jury they are to find guilt by proof beyond a reasonable doubt. He said there have been problems with the current jury instruction in the last few years and furthered he believed the proposed instruction in S.B. 400 would resolve any future problem. He continued the United States Supreme Court has also addressed the phraseology "more weighty affairs of life" in reasonable doubt instructions. He said he believed the Nevada Supreme Court had taken a step in the right direction in recommending S.B. 400.

Chairman James said it appears the language is more up-to-date, but this new instruction could be questioned just as well as the old instruction. He furthered if S.B. 400 is passed the language will at least be more present-day language.

Richard A. Wright, Concerned Citizen, said he supported the proposed instruction because it is the same being used in federal court. He said there is a great deal to be said for certainty and uniformity.

David F. Sarnowski, Chief Deputy Attorney General, Criminal Justice Division, Office of the Attorney General, voiced opposition to S.B. 400. He said subsequent to the United States Supreme Court 1990 decision in Cage v. Louisiana, 498 U.S. 39 (per curiam), the Legislature amended the statutory definition then in effect by deleting the words "and substantial" after the word "actual." Mr. Sarnowski stated that subsequently litigation ensued in both the state and federal courts brought by private lawyers and governmental defense lawyers. He continued there have been dozens, if not more than 100, attacks on that same jury instruction and virtually all of the attacks have been unsuccessful. He said numerous writs of certiorari have been filed asking the United States Supreme Court to review the old definition. He added as late as 1998 the Office of the Attorney General litigated this exact issue against Mr. Pescetta’s office and obtained a published opinion in the case of Ramirez v. Hatcher, whereby the United States Court of Appeals for the Ninth Circuit found the old "reasonable doubt" definition to be constitutional as a matter of federal constitutional law (Exhibit E). Mr. Sarnowski said, with regard to the proposed definition, the Office of the Attorney General has not yet engaged in substantial litigation in the federal courts, but having the first definition upheld it would be a stretch to say the proposed definition is unconstitutional. Mr. Sarnowski stressed S.B. 400 is a litigation bomb.

Chairman James asked about the argument of the language being more up-to-date and less archaic. Mr. Sarnowski responded although he understood that argument, it has been his experience in trying cases with the instructions in question as well as having reviewed hundreds of pages of briefs, jury selection transcripts, and the like, that very rarely do juries proffer interesting academic questions.

Senator Care asked what year the Ramirez case was decided. Mr. Sarnowski replied Ramirez was decided by the United States Court of Appeals for the Ninth Circuit in 1998 (Exhibit E). Senator Care asked if the trial was in Nevada. Mr. Sarnowski replied yes, it was a case that arose in Clark County. Senator Care asked if the Ramirez case discusses the Bollinger case. Mr. Sarnowski responded he did not recall and added it was not the existing statutory instruction at issue in Ramirez that was discussed in Bollinger, rather it was the one the Legislature supplanted in 1991 with the additional words "and substantial" that was challenged.

Mr. Pescetta said the Ramirez case did not explicitly discuss the Bollinger suggestion made by the Nevada Supreme Court. He stressed this is an instruction suggested by the Nevada Supreme Court. He said since there has been significant criticism about the language of this instruction, he was asking the Senate Committee on Judiciary to consider whether to continue to use an instruction that has been characterized as unhelpful and unwise, rather than go with something that has been in use by the federal courts for a considerable period of time.

Chairman James asked for a copy of the Ramirez case for the Senate Committee on Judiciary to review and take this matter under consideration. Senator Titus asked to hear the Ramirez cite read. Mr. Pescetta recited:

Mr. Pescetta emphasized this was not a constitutionally based change, but what the Nevada Supreme Court suggested would be an improvement by casting the instruction in a more modern and simple form.

Ben Graham, Lobbyist, Nevada District Attorneys’ Association, said amending this statute is a momentous step to take. He said he had talked with defense attorneys who liked the proposed instruction and had talked to defense attorneys who did not like the proposed instruction. He continued some defense attorneys had told him that as soon as S.B. 400 passes they were going to challenge it. He added in light of the longstanding litigation and the litigation that has gone from the pre-1991 and the post-1991 instruction that has upheld this constitutionally in the local courts and in the Ninth Circuit Court of Appeals, now is not the time to make this change. Mr. Graham emphasized this was an issue that could be discussed among the defense bar and prosecution attorneys to eliminate some of the concerns of the prosecution and of the defense bar and be back in before the Legislature in 2001 with the consensus that is missing today.

Chairman James said the new language seemed easier to understand than the language to be stricken which reads more like a double negative. Mr. Graham said if any direction is taken in changing the jury instruction, it should be something made after a more careful deliberation by the all parties involved.

Senator Wiener asked if this bill would only be effective as of the date of application. Mr. Graham said if the decision is made to adjust the reasonable doubt instruction, it would be imperative to acknowledge statutorily that there has been no wanting in the last 8 or 9 years of the reasonable doubt instruction.

Senator Care asked why in Bollinger the Nevada Supreme Court proffered what appeared to be an invitation to the Legislature to make a change. Mr. Graham said the decision in Bollinger dealt with the pre-1991 reasonable doubt instruction.

Mr. Sarnowski said the Nevada Supreme Court did not have the benefit of the Victor v. Nevada decision out of the United States Supreme Court, which he recalled came down after Bollinger and after Cage. He furthered the Nevada Supreme Court obviously did not have the benefit of knowing that the Ninth Circuit Court of Appeals 3 years later would find the first definition of reasonable doubt was in fact federally constitutional.

Senator Titus pointed out the Bollinger information cites Victor v. Nebraska (Exhibit D) so apparently the Nevada Supreme Court did have the benefit of the decision in Victor.

Mr. Sarnowski said he stood to be corrected as he did not remember the exact dates of the decisions and pointed out the Bollinger case just recently got into federal habeas corpus review, so perhaps it will be known sooner rather than later what the federal courts have to say about the instruction in question.

Gemma Greene, Lobbyist, Washoe County District Attorney’s Office, said the Washoe County District Attorney’s Office also is not in support of S.B. 400. She said although the district attorney’s office recognizes the language of the current instruction is archaic and the proposed language is easier to understand, the current language has been reviewed up to the United States Supreme Court and using the new language would create challenges on countless murder cases. She continued that although the new language brings the instruction into the twentieth century, it points to a person’s civil trial experience as a juror which causes confusion. Ms. Greene indicated concern about the language "firmly convinced of the defendant’s guilt" in that it is a lesser standard than "reasonable doubt." She said she also did not like the language "give the defendant the benefit of the doubt" as that totally muddies the water as to what "reasonable doubt" is. She added the old instruction has gone up to the United State Supreme Court and has been upheld as in the Ramirez case:

Ms. Greene stated the above quote is exactly the Washoe District Attorney’s view of the instruction. She added it is not exemplary, but it does satisfy due process.

Chairman James asked if the proposed instruction in S.B. 400 is in fact the instruction that is used in federal court. Ms. Greene said she did not believe it was. She furthered it is a model instruction the Nevada Supreme Court obtained from the federal judiciary center.

Chairman James asked Mr. Wright if this proposed instruction is the one given when he is trying a criminal case in federal court and a jury instruction is requested on reasonable doubt. Mr. Wright responded the federal court does not give the Nevada instruction, they give a federal instruction. He indicated that he knew of a couple of judges who utilize the proposed instruction in S.B. 400 and the Ninth Circuit Court of Appeals has its own standard instructions.

Chairman James asked Mr. Pescetta to provide the Senate Committee on Judiciary with a copy of the Ninth Circuit Court of Appeals instruction for a clearer understanding. Mr. Pescetta said each circuit is allowed to craft its own jury instructions. He indicated the proposed instruction in S.B. 400 is the one proffered by the federal judicial center and provided to all federal judges. Mr. Pescetta said he would provide the Senate Committee on Judiciary with the patterned instruction that is in use in most federal courts.

Chairman James asked about removing the statutory definition and deferring to the courts, because they are closer to this issue and understand it better than the Legislature. Mr. Pescetta said Nevada has always had a rigid statutory definition that is used in all criminal cases since this measure was first passed in 1889. Mr. Pescetta pointed out the Legislature might want to consider whether the court must use this instruction in S.B. 400 if it uses any instruction; but it does not have to use any instruction, and added that would be an acceptable alternative.

Senator Care asked Mr. Pescetta if the Ninth Circuit Court of Appeals ever considered a constitutional challenge to the instructions proposed in S.B. 400. Mr. Pescetta replied as far as he knew there had not been a federal constitutional challenge to that instruction.

Chairman James said he believed the proposed instruction is a better instruction because it is easier to understand.

There being no further testimony, Chairman James closed the hearing on S.B. 400 and opened the hearing on S.B. 482.

John C. Morrow, Lobbyist, Washoe County Public Defender, said he first began discussing S.B. 482 when the proposed amendments to the existing discovery bill occurred. He said at that time he presented an issue of equity where people similarly situated before a grand jury magistrate were allowed different access to the information to be presented against them in the way of evidence. He said when a person is notified that they are a target of a grand jury investigation they should at the same time be furnished at least a summary of the evidence to be presented against them.

Senator Care asked Mr. Morrow if he had ever represented a client who was the target of a grand jury investigation and did not really have an idea of what the investigation was about. Mr. Morrow said normally a person would have some knowledge of what the investigation was about. He stated he did not extensively represent people who are targets of grand jury investigations, but it comes up in his practice by way of his representing a person who has a subsequent case against them and that person gets a target-of-a-grand-jury letter. Mr. Morrow added this leaves him at a disadvantage because he has no idea of what evidence is to be presented. He said he has also seen grand jury indictments after the prosecution has failed to convince a justice of the peace that a person charged by criminal complaint should be bound over to trial and at that point the prosecution can go to the grand jury and hopefully present a more complete or better case. Mr. Morrow continued it is only fair the targeted person of the indictment, preceded by a criminal complaint that was dismissed, should be aware of what additional evidence is to be presented.

Senator Care said he had always heard the grand jury proceeding is not a trial, but a hunt for reasonable cause and therefore the evidentiary standards would not exist as they would in a trial. Mr. Morrow stated it was his belief both parties are in a similar situation and both should be entitled to have the same knowledge and ability to assist their attorney regardless of which form the prosecution has chosen to use.

Senator Care asked if Mr. Morrow was aware of other jurisdictions that practice what he would like to see amended by S.B. 482. Mr. Morrow responded his practice was strictly limited to Washoe County so he was not sure of the practice of other jurisdictions.

Mr. Wright addressed Senator Care’s question stating he was not aware of any other state having the grand jury practice that Nevada has and added nor does the federal government. He said Nevada has statutorily created certain rights for grand jury targets if the grand jury is to be used. The two statutory rights that do not exist in most places outside Nevada are that the target of the grand jury has the statutory right to reasonable notice; and also if the prosecution has any known exculpatory evidence, the prosecution is obligated to present it to the grand jury. Mr. Wright continued with those two existing statutory rights comes the issue of S.B. 482. He added the greatest concern is giving the targeted person reasonable notice, and section 2 of this bill expands on reasonable notice by requiring that the reasonable notice include the citizen be told a summary of the evidence against him. He furthered that language is not an effort to turn this into a discovery proceeding, but to inform the target of a grand jury indictment what the offenses are and the factual basis for the offenses. Mr. Wright suggested the language on page 2, line 43, could include a statement of the proposed charges and factual basis, and that the target be entitled to access the target’s own evidence and business records. He suggested this language be added as paragraph (d) under section 2, subsection 2. Mr. Wright submitted an Order of Remand (Exhibit F) in State of Nevada v. William Thurman Walters, et al. issued by the Nevada Supreme Court in support of his suggested language amendment to S.B. 482.

Senator Care asked Mr. Wright when he represents the target of a grand jury if he meets with the prosecutor to find out what the grand jury has come up with in an investigation. Mr. Wright said normally he would have conversations with the prosecution in order to know what the charges are, but in the case of State of Nevada v. William Thurman Walters, et al. (Exhibit F) the Honorable Donald M. Mosley, District Judge, Eighth Judicial District, said it seems fair the person who has been called in to answer questions should have the right to access to their own records. The prosecutor answered that might be fair, but the statutes do not have that requirement.

Mr. Graham said he had been working on this discovery issue for the last 10 years and the concept of pre-grand jury discovery raises an entirely new scene than what has been discussed over the last 10 years. He said a preliminary hearing is a forum opened to the public, and the defendant with his counsel receive evidence presented by the state. He continued in order to properly defend a defendant before a public forum it is reasonable to do preliminary discovery, but the grand jury process in most jurisdictions is a closed proceeding and very seldom, if ever, does a defendant even know what went on. Mr. Graham said Nevada probably has the most liberal grand jury proceeding anywhere in the nation, where the defendant is provided a copy of the transcript after the proceeding. He reminded the Senate Committee on Judiciary that the grand jury is an investigatory tool, but not necessarily in each instance going to hold someone over to answer by returning an indictment.

Chairman James asked what percentage of time a grand jury convenes where it does not return an indictment. Mr. Graham said he could not give a number, but said it is not unusual that an indictment is not returned.

Mr. Graham said when a grand jury notice is served on someone in Clark County, the nature of the charges, the dates of the crimes and the police reference number are all given in the notice. He emphasized it is unusual on the part of a criminal defense attorney to put their defendant on at preliminary hearing or to have their defendant testify at a grand jury proceeding. He said for that reason it really does not serve a purpose to do pre-grand jury discovery because of the investigative nature. Mr. Graham said he saw no legitimate reason for the pre-grand jury discovery and urged S.B. 482 not be processed as drafted.

Mr. Sarnowski said the Office of the Attorney General opposes S.B. 482 as it is presently written. He pointed out a technical defect in that there is no specified effective date unlike most other bills. He stated it is the attorney general’s consistent stance that any enactment be done prospectively only for offenses to be committed in the future, not to be applicable to things that have already happened. Mr. Sarnowski suggested this bill not be effective until at least January 1, 2000 if enacted at all. He stated S.B. 482 does not provide the state with reciprocal discovery rights that it now has under the discovery statutes.

Chairman James said the state has the right to obtain a search warrant. Mr. Sarnowski said the state certainly has that right, but the discovery statutes allow the state to obtain expert witness information and the like. Mr. Sarnowski continued the bill as written does not give the state that right, and he thinks the defense bar could ably argue that since S.B. 482 does not give the state that right the state would no longer have that right.

Senator Titus asked where that is provided now that it is not in S.B. 482. Mr. Sarnowski said the discovery statutes that govern criminal proceedings generally are contained in other sections of the law. He said S.B. 482 sets up a new procedure whereby a defendant, without having to request it as now exists under statutory law, would no longer have that right.

Senator Titus asked if those discovery statutes applied to grand juries. Mr. Sarnowski said the discovery statutes and the grand jury statutes are two different things and that brought him to his objection of the language on page 2, lines 42 and 43, where there is another in-road to be made in an already extensive grand jury practice. It would be piling yet another requirement on the state to give the defendant and the lawyer a summary. He added defendants who can afford lawyers will get those summaries and do something with them while defendants who cannot afford lawyers will not. He said the biggest mischief here is danger to victims and danger to cases. Mr. Sarnowski added grand jury proceedings are brought in many instances to protect witnesses who are understandably fearful about coming forward.

Chairman James pointed out the law provides the notice is given unless there is reasonable cause to withhold the notice, and on page 3 of S.B. 482 there are numerous provisions for reasonable causes to withhold notices. He said his concern is of financial crimes based upon records wherein there is only a 5-day notice to testify wherein a person needs to get access to his own records. He stressed if a person is indicted that person has to enter a plea at which time there is a case. It proceeds forward under the existing rules and this bill does not affect any of the discovery grappled with in the past.

Mr. Graham submitted a memorandum he received from Chris Owens, Chief Deputy, Support Services Division, Clark County District Attorney (Exhibit G), setting forth a variety of reasons for opposition of S.B. 482.

Chairman James asked when the Marcum notice referred to in Exhibit G was added to the statute, because if a person has the right to testify that person has a right to have notice. Mr. Graham responded the court order process is not automatic and is a safety valve that is not used except for some very specific reasons. Mr. Graham pointed out he would love to have a defendant testify because they incriminate themselves 99.9 percent of the time. He continued the only time a defendant really has to testify is when a defense attorney and the prosecution decide together a course of action from which exculpatory evidence is presented to the grand jury from a defendant. He added there is a case or two a year in Clark County where the grand jury does not indict, but it is an orchestrated presentation.

Chairman James said in the obvious cases, such as certain murder cases, it is less of a consideration. He continued he has always had a concern about grand juries because it is the government investigating somebody in secret and the person has not yet been charged with anything.

Mr. Graham said he did not see a legitimate reason to have pre-grand jury discovery except possibly to help a defendant defend himself later. Chairman James opined that having the government investigate a person at a grand jury proceeding is momentous and he thinks there should be some right for a defendant to know of an investigation.

Mr. Morrow said the issues raised by Mr. Wright have merit. The language placed in section 1, subsection 1 of S.B. 482 involving full discovery prior to the arraignment hearing in district court after an indictment, was placed there primarily to give a few extra days on negotiating a case up front. He continued if the prosecution feels that language is too much of a burden, the cases will just get resolved later. Mr. Morrow indicated the request that the public defender get some knowledge prior to the meeting of the grand jury on the evidence to be presented is just a matter of fundamental fairness and is one that is not going to burden the prosecution to any great degree.

Chairman James asked Mr. Morrow if there is a Marcum notice or any pre-indictment information exchange in federal proceedings. Mr. Morrow replied he did not know as he does not practice in the federal system at all. Mr. Wright interjected because of guideline sentencing there is now some pre-charge bargaining in cases like Marcum-notice cases where there is no risk of flight. Mr. Wright added it is malpractice not to allow a client to make the decision as to whether or not he is going to testify and said there were ways to utilize the information in negotiations with the prosecution that are not in front of the grand jury necessarily.

Mr. Morrow suggested since there has been a total void of any discovery prior to the meeting of the grand jury, a grand jury might hear from more defendants if the defendants had information regarding the alleged wrongdoing.

There being no further testimony, Chairman James closed the hearing on S.B. 482 and opened the hearing on S.B. 483.

Daniel Ahlstrom, Deputy District Attorney, Bad Check Unit, Clark County District Attorney, said S.B. 483 is an effort to alleviate some of the problems he faces in having out-of-state financial institutions comply with providing necessary information on people passing checks with insufficient funds or closed accounts.

Senator Wiener asked if Nevada has jurisdiction in enforcing its law in another state. Mr. Graham replied passing a check in Nevada with insufficient funds or on an account which is closed is an offense regardless of where the account exists.

Senator Care asked how many times a year an out-of-state affidavit has to be served on an out-of-state financial institution. Mr. Ahlstrom guessed about a dozen times a year and added although the affidavits are not served very often, when they are it is a very significant situation dealing with hundreds of thousands of dollars.

There being no further testimony, Chairman James closed the hearing on S.B. 483.

Chairman James opened a work session and asked Mr. Wilkinson if he had been able to draft any language or reasonable outline of language for an amendment to S.B. 395 regarding the concerns expressed over the financial impact. Mr. Wilkinson replied yes, the language would read "If a prisoner is applying for parole from a sentence imposed for a crime involving the use of force or violence against the victim that resulted in bodily harm to the victim, and original or duplicate photographs depicting the injuries to the victim and the scene of the crime are in existence, a representative sample of original or duplicate photographs that depict the injuries to the victim and the scene of the crime must be included with the information submitted to the board at the meeting. As used in this subsection, photograph includes any video, digital, or other photographic image or representation." Mr. Wilkinson said he thought this language would adequately address the concerns.

Chairman James said subsection 3 of subsection 1 would be eliminated. Mr. Graham voiced concern about changing existing language. Chairman James suggested "are reasonably available." Mr. Graham agreed. Chairman James said he was worried about the language "and the crime scene." He suggested "or the crime scene." Mr. Wilkinson replied it could be "or" just in case both are not available.

Senator Wiener said she also heard the word "must" which would preclude subsection 3, as well. Mr. Wilkinson said he removed "except as otherwise provided in subsection 3."

Chairman James asked for a motion to amend and do pass S.B. 395.

SENATOR CARE MOVED TO AMEND AND DO PASS S.B. 395.

SENATOR WIENER SECONDED THE MOTION.

Chairman James asked for a motion to do pass S.B. 483.

SENATOR WIENER MOVED TO DO PASS S.B. 483.

SENATOR CARE SECONDED THE MOTION.

*****

Chairman James asked for a motion to amend and do pass S.B. 347 with the proposed amendment by Senator Wiener (Exhibit H).

SENATOR CARE MOVED TO AMEND AND DO PASS S.B. 347.

SENATOR MCGINNESS SECONDED THE MOTION.

*****

Chairman James suggested removing the part of the bill dealing with the adoption of a new standard for the secondary post-conviction litigation regarding effective assistance of counsel, because that was in controversy. He said that was the sham, farce, or pretense standard the Senate Committee on Judiciary had passed and processed during the last legislative session, but it did not pass the Assembly. He continued the original bill last session, S.B. 132 of the Sixty-ninth Session, proposed there be no standard and Senator Titus was trying to come up with some level of standard.

Chairman James said instead of dealing with that, S.B. 361 would leave in effect the standard of reasonably effective counsel. He summarized sections 5 and 6 of the bill would be deleted and the Senate Committee on Judiciary would pass the technical amendments that were not opposed by either side. He pointed out in fairness that Mr. Pescetta proposed an additional amendment that would go to the time limitation regarding the filing of first petitions, but Chairman James said he was not inclined to take that up since it was not heard or discussed and it would be an add-on of a different subject matter to this bill. Chairman James asked for a motion to amend and do pass S.B. 361 as proposed.

SENATOR CARE MOVED TO AMEND AND DO PASS S.B. 361.

SENATOR WIENER SECONDED THE MOTION.

Chairman James said the Senate Committee on Judiciary is interested in S.B. 400 and S.B. 482 and suggested the parties to these two bills provide the requested information to the committee for consideration in a future work session.

There being no further business, Chairman James adjourned the meeting at 12:10 p.m.

RESPECTFULLY SUBMITTED:

Janice McClure,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

DATE: