SENATE COMMITTEE ON JUDICIARY

MINUTES OF THE

SENATE Committee on Judiciary

Seventy-First Session

March 1, 2001

The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:46 a.m., on Thursday, March 1, 2001, 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:

Bradley A. Wilkinson, Committee Counsel

Allison Combs, Committee Policy Analyst

Ann Bednarski, Committee Secretary

OTHERS PRESENT:

Douglas Byington, Lobbyist

Mike Kuckenmeister, Program Manager, Contract Services/Property Management, Purchasing Division, Department of Administration

Ben Graham, Lobbyist, Nevada District Attorney’s Association

Pat Coward, Lobbyist, Nevada Land Title Association

Thomas M. Carroll, Chief Deputy District Attorney, District Attorney, Clark County

Cheryl Hier-Johnson, Deputy District Attorney, District Attorney, Washoe County

James J. Jackson, Lobbyist, Nevada Attorneys for Criminal Justice

John C. Morrow, Lobbyist, Chief Public Defender, Washoe County

David S. Gibson, Lobbyist, Clark County

Vicki Monroe, Special Victims Unit, Criminal Division, District Attorney, Clark County

JoNell Thomas, Lobbyist, Nevada Attorneys for Criminal Justice

Gemma Greene Waldron, Lobbyist, Nevada District Attorneys Association

Chairman James opened the hearing on Senate Bill (S.B.) 129.

SENATE BILL 129: Provides that ownership of aircraft forfeited for commission of crime may be transferred to Nevada Wing of Civil Air Patrol. (BDR 14‑1150)

Douglas Byington, Lobbyist, described himself as a “friend of the Civil Air Patrol” and said he had discussed this bill with Senator Jacobsen (Senator Lawrence E. Jacobsen, Western Nevada Senatorial District). He said he had proposed an amendment to S.B. 129 which he had discussed with the Civil Air Patrol (CAP) (Exhibit C). Both CAP and Senator Jacobsen agreed with the proposed amendment, he noted. The CAP is limited nationally to 520 aircraft, he reported. If CAP received aircraft as proposed in this bill, they would not know what to do with it. He explained they could not sell it or spend money to repair it. Furthermore, he explained, aircraft confiscated as a result of drug trafficking are generally in very poor condition and require expensive repair, such as replacing an engine at a cost of $20,000.

Mr. Byington confirmed the proposed amendment would allow the state to sell it to the public, including parting it out, and then credit the proceeds to the state CAP budget. He said the Civil Air Patrol has not had a budget increase since approximately 1985, and therefore, was elated at the possibility of getting additional monies for repairs and maintenance. Some of the operational money for the CAP comes from the U.S. Air Force, and, he said, the State budget allots about $85,000 to fund searches and exercises of the CAP. He expressed money from forfeited aircraft sales would help considerably. Mr. Byington said his proposal asks to strike line 11 and insert instead, “In the case of an aircraft, dispose of the aircraft through a public sale with proceeds being credited to the Nevada Wing of the Civil Air Patrol state budget.” He added it may need to be fine-tuned, but reiterated it is the proposed amendment.

Senator McGinness asked if the ownership of an aircraft was transferred to the Civil Air Patrol, could they sell it. Mr. Byington said they could not, as they have no authority to accept aircraft with those conditions. Pilots, he explained, are flying the CAP aircraft, which are provided by the U.S. Air Force with the exception of a few planes flown by their owners, who are reimbursed if they go out on a search. When pilots are flying the CAP airplanes, for example for recertification purposes, the pilots pay for the time they fly the aircraft. He added, in terms of numbers of aircraft, the CAP currently has the maximum number of authorized airplanes, and stated Reno has two, Douglas has one, Carson City has one, and there are several in Lyon County.

Senator McGinness asked what prompted S.B. 129. Mr. Byington said he could not answer authoritatively but thought someone attempting to help the CAP by securing additional aircraft for them had initiated this bill. If the CAP did receive aircraft, as proposed in this bill, it would not have authority to sell it nor money to repair and maintain it, he reiterated. Senator McGinness then suggested the bill be altered to say, “The seizing agency has an opportunity to retain it for official use or sell it.” He asked Mr. Byington if he believed they would actually get an airplane. Mr. Byington explained a review of the history of aircraft used for drug runs conclusively indicates the aircraft is generally in poor condition and lacking as far as meeting FAA standards. He stated they do not really want an aircraft acquired under these conditions.

Senator Care asked how many aircraft are seized yearly and where are the confiscated planes, if they are, in fact, in such need of repair. Mr. Byington explained he was not privy to the information but, he added, from reading his pilot/aircraft magazines, he believes there are several confiscated planes kept in Florida or along the Mexican border. He agreed to find this information.

Mike Kuckenmeister, Program Manager, Contract Services/Property Management, Purchasing Division, Department of Administration, said among his duties is the disposal of state property. He said he felt he had relevant information for both the committee and the Civil Air Patrol. He added he checked with different agencies including the department of investigations and the Department of Motor Vehicles and Public Safety (DMV/PS) to inquire if there were any seized aircraft. He reported there are no aircraft pending disposition. He explained he has had the responsibility of disposing of state property for 15 years and said only once was there a state–seized, forfeited aircraft. Mr. Kuckenmeister said he did not believe there would be anything to offer to the CAP in terms of forfeited aircraft, and he pointed out there are other resources for them. He went on to say Chapter 333 of Nevada Revised Statutes (NRS) expressly authorizes CAP to acquire new and used equipment from the state. He said the state’s Integrated Emergency Response Team serves with the Civil Air Patrol as part of the State Division of Emergency Management and was interested in assisting them.

Chairman James asked Mr. Kuckenmeister to affirm the lack of aircraft available in Nevada. Mr. Kuckenmeister answered there would not be many, based on past history. He said his division sells personal property daily to local government agencies, political subdivisions, and eligible nonprofit organizations. The department transfers titles from these sales, if necessary, he added. Mr. Kuckenmeister said from his experience with forfeiture goods, the money yielded from selling them is placed in a separate budget account. This account, he said he believed, is used for a variety of things, including restitution to victims in certain cases and/or tax collection.

Senator Care requested clarification of the issue. He queried whether it was the aircraft or the proceeds from its disposal through sale or parting out being discussed. Mr. Kuckenmeister said this proposed bill would be of concern to some state agencies. Chairman James stated there was no one present from other agencies and they did not know of the suggested amendment.

Ben Graham, Lobbyist, Nevada District Attorneys’ Association, came forward to say he once flew airplanes. He reiterated Mr. Byington’s earlier statement. Once, he explained, in an effort to save the taxpayers some money, he asked the Las Vegas Metropolitan Police Department to find him a forfeited vehicle to drive to Carson City. He told of his experience driving a drug dealer’s forfeited Ford Bronco, laden with repairs and breakdowns, noting this would likely be the condition of an aircraft confiscated from drug traffickers.

Chairman James closed the hearing on Senate Bill 129 and opened the hearing on S.B. 134.

SENATE BILL 134: Makes various changes pertaining to sales of real property. (BDR 9-454)

Pat Coward, Lobbyist, Nevada Land Title Association, requested S.B. 134 be postponed indefinitely. Historically, he said, it was drafted and though attorneys worked on correcting problems, there remained problems within the industry regarding this legislation. He suggested those involved could work on the problems and return to the Legislature with a better, workable presentation.

Chairman James said, as opposed to postponing it, he would rather speak to Senator Shaffer and discuss it in a work session. He closed the hearing on S.B. 134 and opened discussion on S.B. 192.

SENATE BILL 192: Authorizes magistrate to permit examination of witness if defendant waives preliminary examination. (BDR 14-466)

Mr. Graham testified the district attorneys are asking for the right to examine a witness even if the defendant waives his right to a preliminary hearing. Preliminary hearings, he said, are heard in justice courts primarily dealing with felony offenses. The State, at that time, he explained, must present enough evidence to the magistrate to convince him of probable cause, essentially, a crime has been committed and this subject likely has committed it. He added, at this time, there is a fairly low burden of proof; rather facts and information are used to determine probable cause. Mr. Graham continued S.B. 192 provides, on the day of a preliminary hearing, the defense counsel, the client, the state, and the witnesses, are present in court. If the defendant waives his right to a preliminary hearing, the witnesses, who frequently are difficult to locate, can still be examined regarding the alleged crime, he explained. He said what currently happens when a preliminary hearing is waived and the case moves into a district court, is the burden then becomes “beyond a reasonable doubt” and this ultimately leads to a trial.

If the preliminary hearing does go forward, Mr. Graham explained, and witnesses give testimony at that time, but were unavailable, not located, or dead at the time of trial, the presiding judge would allow their earlier testimony to be read into the proceedings. He reasoned, everyone is present at the preliminary hearing: the state, the defense, the accused, and the witnesses, who often have been brought in from out of state to testify. Therefore, he continued, this bill allows the court to preserve the testimony on behalf of the parties. He clarified without a preliminary hearing there may be no testimony to preserve.

Mr. Graham said this bill asks to examine the witnesses at the preliminary hearing, even if the defense waives the right to this part of the process, allowing testimony to be preserved from a preliminary hearing, and subsequently used at trial. Whereas there are provisions for depositions, he continued, they are very burdensome and seldom allowed by the district court. He compared the preserved testimony of witnesses to an insurance policy, not lost in the event of death of a witness, which, he said happens regularly.

Mr. Graham introduced Thomas M. Carroll of the Clark County District Attorney’s Office, and Cheryl Hier-Johnson of the Washoe County District Attorney’s Office.

Thomas M. Carroll, Chief Deputy District Attorney, District Attorney, Clark County, stated if testimony is preserved at the preliminary hearing stage of the procedure, despite a waiver by the defendant, that testimony is subject to cross-examination. He explained the defendant is seated in the courtroom when the testimony is given. It is only used at the trial if the witness is unavailable when the trial takes place. He continued a statement of the unavailability of a witness must be presented to the court before such prior testimony can be used. He stated the obligation remains to obtain the presence of the live witness. Mr. Carroll cited examples of Nevada Revised Statutes (NRS) cases where provisions of NRS 171.196 were used strategically.

The case he used to illustrate his point was the State of Nevada v. Floyd, involving a shooting at an Albertson’s Food and Drug store in Las Vegas. Mr. Floyd had, prior to the Albertson’s incident, raped an outcall-service dancer or stripper at his house and then conversed with her about his intention to commit murder at the Albertson’s store. After this suspect was apprehended, the police investigated and found the woman, who submitted a statement to them, though, Mr. Carroll said, she was very reluctant. He noted she did appear at the preliminary hearing. He said when Mr. Floyd’s defense counsel saw her and realized, through knowledge gained in the discovery process, how significant her testimony would be, he chose to waive the preliminary hearing to squelch the premeditation aspect of this case.

Mr. Carroll continued the prosecution had a difficult time keeping contact with the witness. He said material witness warrants were needed, as were motions to secure depositions, which were repeatedly denied, but eventually, he explained, he succeeded in having this witness at trial. Senate Bill 192 removes some strategy and gamesmanship from the system so pursuit of truth and justice can prevail, he said. He emphasized this bill ensures a mechanism is in place while all parties are present in justice court, allowing a witness to testify and be cross-examined. He concluded, then, if a witness is not available at time of trial, the testimony can be read and the truth can be heard.

Chairman James asked for validation S.B. 192 is asking for preservation of testimony, similar to a deposition. Mr. Carroll responded current statutes found in chapter 174 of NRS, require different showings to be made in district court to convince the district court judge there is a need to allow that testimony. He stated, “The difference here is early on in the case, when witnesses are present at the preliminary hearing, we want to have authority to do so to assure their testimony is preserved should they not be available at the time of trial.”

Senator Care asked if other jurisdictions allow testimony at a preliminary hearing when the defense has waived it; Mr. Carroll responded there are other jurisdictions including Illinois, Texas, Oklahoma, Utah, Louisiana, Michigan, New York, and perhaps other states. Generally, Mr. Carroll said, there are two approaches used: first, before a waiver of the preliminary hearing can occur, both the defense and the state agree to the waiver; second, if the defense wants to waive the preliminary examination, the state is permitted to call the witnesses in order to preserve the testimony. He acknowledged the similarity between both approaches is witnesses are called in the early stages of the case, allowing them to testify and be cross-examined to ensure testimony is preserved, should the witness not be available later in the case.

Senator Care queried, are defense attorneys permitted to introduce statements made by witnesses at the preliminary hearing for the purpose of attacking the credibility of the witness at trial? Though unsure, Mr. Carroll said he suspected this practice is allowable. He said if testimony changes at the trial, a prior inconsistent statement could be used by the defense or the state to impeach the credibility of that witness.

Senator Care continued with questions about a continuance of hearing requested by the defense if the preliminary hearing is waived and if defense asks for a continuance to discredit the witnesses. Mr. Carroll said the way S.B. 192 is drafted, the judge has the discretion to either conduct a hearing or grant a continuance, keeping in mind the purpose of a preliminary hearing is to establish probable cause. He added, most likely the defense would keep impeachment of the witness to use during the trial.

Cheryl Hier-Johnson, Deputy District Attorney, District Attorney, Clark County, came forward in support of S.B. 192. She explained she is assigned to the major crimes unit. She used examples of cases laden with strategic roadblocks she confronted in her efforts to preserve the testimony of her witnesses.

She stated, in one case, an armed robbery occurred on the casino floor of the Sands Regency Casino and Hotel in Reno during the early morning hours. She said the robbers were four men who confronted a blackjack/21 dealer and stole thousands of dollars in chips from her table. A handgun was used, she added. During investigation of the crime, she continued, the victim was unable to identify any of the suspects from police photos. However, nearby patrons at the casino witnessed the robbery and were able to identify the suspects from a photo lineup, she said. Ms. Hier-Johnson commented these witnesses were from out of state and were flown back for the preliminary hearing two weeks later. This hearing was waived, she explained, adding the defense attorney shared his strategy with her, stating he wanted to put time between their observations and the trial. She continued, these witnesses were flown back twice, and both times the preliminary hearing was waived by the defense. She asked the judge for permission to examine these witnesses and he politely informed her, “The state has no right to a preliminary hearing.” It was one year until this case went to trial, and Senate Bill 192 would have enabled the state to call these witnesses to testify to the suspect’s identity in a timely fashion.

Senator Care asked, “Is it the defense counsel, rules of criminal procedure, or particular judges that are the problem?” Mr. Graham answered he had a criminal defense practice and had experienced little problem with cross-examinations or seeking the truth to free his clients. Rather, he added, he was able to manipulate the system and to put into practice the procedures just described by the prosecutors. He reiterated, what is requested is to allow prosecutors to preserve evidence as if the preliminary hearing had not been waived and get the loophole out of the system.

Chairman James asked to hear from those who opposed this bill. He explained the reason for a preliminary hearing is to protect the rights of the accused and to assure there is probable cause. By waiving this hearing, the protection of rights is not an issue, he said. It becomes a mechanism for the state to preserve its case. He stressed, what we are questioning is the appropriateness of doing this.

James J. Jackson, Lobbyist, Nevada Attorneys for Criminal Justice, said, as a public defender and one who spent some time sitting on the bench, he could not recall even one case where, when a preliminary hearing was waived, a witness ended up dead. He said his colleagues who are present also could not recall a single case where the death of a witness was an occurrence. He said it still needs to be determined how to fix this without circumventing the rights of the accused.

JoNell Thomas, Lobbyist, Nevada Attorneys for Criminal Justice, said essentially this bill involves discovery. She said without discovery and the ability to investigate the witnesses before the preliminary hearing, there could be no meaningful cross-examination or confrontation of witnesses. She stressed, for the preservation of testimony for use at trial, the defense must have the ability to cross-examine the witness in a meaningful way. Ms. Hier-Thomas refuted the allegation the defense is not likely to examine a witness at a preliminary hearing, stating it is not true, if the defense has doubt about the witness appearing. She said a defense attorney is entitled to full discovery rights. Mr. Jackson challenged her statement, adding defense attorneys have no rights of discovery prior to the preliminary hearing.

Chairman James said there was a bill to allow reciprocal discovery, and asked to be refreshed on its progress.

John C. Morrow, Lobbyist, Chief Public Defender, Washoe County Public Defender, defined it as a collaborative effort between several prosecutors and defense attorneys. He continued one of the provisions in the 1997 discovery bill, involved pre-preliminary hearing discovery. The point of disagreement revolved around whether defense attorneys would be entitled to full discovery before the preliminary examination. The district attorneys/prosecutors were successful in getting language in the bill stating only information known to the prosecutor at the time would be discoverable before the preliminary hearing. This provision, he said, created a loophole in the pre-preliminary statute. Now, he said, the prosecutors want it expanded to keep them from having to give full discovery before preliminary hearings, which can force examination and inadequate cross-examination, and then, later, use information from these examinations to the great disadvantage of the defense, allowing for derogation of the constitutional rights of the defendant. He emphasized what is proposed in S.B. 192 is simply wrong.

Chairman James pointed out, if the preliminary hearing is not waived, the position of the defense is unchanged. He explained if a preliminary hearing was held instead of waived, and the judge allowed examination of witnesses by the prosecution, testimony would be part of the record anyway. If, he went on, the witness was unavailable at trial, the evidence would still be admissible.

Mr. Morrow said, ”Two wrongs do not make a right.” He added, many witnesses are “flaky” and need to be examined at trial because they often do change their testimony. He said he agreed with Chairman James’ comment, adding time often impairs memory whether a person is considered flaky or not.

Chairman James expressed understanding for Mr. Morrow’s position but added the discovery issue continues to be a concern to him.

Senator Care said the way S.B. 192 is drafted, the words, “good cause appearing” and “the magistrate may but does not have to . . .” are the bothersome portions to defense attorneys. Mr. Morrow answered affirmatively, stating he was not comfortable with those words. He added the discretion of the magistrate is generally exercised in the direction of caution toward not offending the prosecution. Senator Care asked Mr. Morrow about the philosophy of discovery and why it is so difficult to obtain a deposition in a criminal matter. Mr. Morrow answered usually a deposition is taken after full discovery and by agreement of the parties, which places it in a different position than it occupies at preliminary examination time. Senator Care repeated his question, adding if this legislation is enacted, the prosecutors will be able to do something quite easily that is apparently very difficult to do now.

David S. Gibson, Lobbyist, Clark County, said he studied case law related to depositions and one of the things he clearly found is the justice of the peace does not have jurisdiction to order discovery. He said there are cases where the judge has been requested to order physical examination, but is not permitted to do it. His responsibility, Mr. Gibson said, is to find probable cause a crime has been committed and further, the defendant committed it. If a defendant waives a preliminary hearing, he is admitting there is probable cause, and in essence, is agreeing to go to trial. He explained a case is bound over for trial either with a preliminary hearing or with evidence. He said he agrees it is not a fair tactic, but it is how the system is stepped up to work. With passage of S.B. 192, the state has discovery and the defense does not have it but he said, the purpose of the preliminary hearing is only to determine probable cause.

Mr. Gibson illustrated his point with a case where witnesses had to be flown in from Chicago to testify. The public defender in Chicago served these witnesses and relayed conditions for testifying in Nevada including three weeks wages amounting to approximately $10,000 each, providing accommodations in a very nice hotel, allowing a travel companion. Mr. Gibson said it became very clear the local public defender’s office could not afford these witnesses. He said his motion to depose these witnesses in Chicago was strenuously objected to by the district attorney’s office. When Nevada Supreme Court Justice Miriam Shearing saw the conditions set forth by the court in Chicago, it was obviously cheaper to depose these witnesses in Chicago. Mr. Gibson said he and Bill Henry, from the district attorney’s office, eventually went to Chicago to depose these witnesses. Settlement of the case occurred before the trial began.

Chairman James quoted the statute enacted in 1997, NRS 171.1965, section 1, paragraph (a).

Not less than 2 judicial days before a preliminary examination, the prosecuting attorney shall provide the defendant with copies of any . . . written or recorded statements made by a witness . . . or any reports of statements or confessions . . . within the possession or custody of the prosecuting attorney.

Chairman James then asked if more discovery could be obtained which would be useful in cross-examining someone at trial.

Mr. Gibson responded, in a criminal case, the public defender talks to all the witnesses before trial. He said when he was on the “murder team,” there were situations where 2 days before trial, reports from detectives were first turned over to the district attorney. It was the detectives who held information, stifling the state’s presentation too, he said. He continued, stating he appeared at preliminary hearings numerous times with statements given by witnesses and found, at the hearing, testimony was completely different. The 2-day rule really means information must be in the prosecutor’s possession and defense attorneys may not hear of it until the preliminary hearing, he said. Chairman James verified testimony must be written or recorded and, if it is not, there is really not a withholding of information.

Vicki Monroe, Special Victim’s Unit, Criminal Division, District Attorney, Clark County, said evidence and statements, such as handwritten police notes, money received from the secret witness program, prior records of witnesses, and in “snitch” cases, collaboration with police, are not required, but there is a lot of discovery done without the formal methods. Chairman James asked if there is more formal discovery in other states. Ms. Monroe responded, in Florida criminal cases are similar to civil cases, stating specifically there is a right to pre-trial depositions of, essentially, all witnesses. She added she did not know about other states.

Mr. Jackson suggested perhaps what should be studied is the criminal deposition procedure if the prosecution feels it operates at a disadvantage. Chairman James agreed, saying S.B. 192 appears to be a discovery bill wherein you learn things and you preserve things.

Mr. Morrow said there are two prongs to the ability to adequately cross-examine a person. The first is discovery, which can be used for impeachment purposes to protect the defendant; the second prong is investigation. Frequently, he said, a lot of investigation is completed prior to the preliminary hearing. This, he explained, is because there is a time factor involved. The public defender has limited investigative staff, therefore the office rarely completes any investigation prior to the preliminary examination, he said. But, he added, the investigation is completed before the trial.

Mr. Graham said there are two sides to the issue; however, he said, if the defense has all the evidence we have and witnesses are not available at time of trial, which is what the defense is counting on to happen, there is evidence and testimony preserved. He added perhaps there is a problem with deposing witnesses.

Chairman James asked if a witness would not be available at time of trial, would the issue of preservation of testimony be worked out in the context of other statutes dealing with discovery. He repeated the preliminary hearing is crafted to determine probable cause.

Mr. Graham responded the goal is to guarantee preserving evidence. He said examining the statutes at the preliminary hearing is a good way to do it. He noted in some instances when the preliminary hearing goes forward, testimony is preserved. He suggested taking another look at the deposition statute might be a good idea.

Chairman James said what concerns him is the state has the burden of proof and S.B. 192 is:

Loading the process in your favor, because instead of being a reciprocal, even discovery process, it’s a process that’s been set up for you [the state] to bring up your case, not the defendant’s, not the defense. If we enact this bill, essentially, we are assisting you to build your case and this is not reciprocal. The defense does not have the burden of proof and the purpose of a preliminary hearing is to protect the rights of the accused. It becomes a way to help the government build its case for trial, which is clearly not the intended purpose.

Mr. Carroll said if additional witnesses are found or evidence is discovered, it is possible to impeach the testimony of a witness at the preliminary hearing. He said this does not foreclose the ability for the defense to impeach the testimony of any witnesses.

Chairman James responded stating it then becomes a confrontational issue, particularly if the witness is not present and preserved testimony is read at the trial. He stated the witness could not respond. He referred to preserved testimony as sterile, nicely packaged testimony, secured when defense was not ready with impeachment of it. He said he is sympathetic to the issue, but feels it should be part of a reciprocal discovery issue so everyone has the right to testimony in a context of discovery, not in a cause proceeding. He added it is loaded against the defendant. Then, he asked Mr. Graham if there is even one other state doing this.

Mr. Graham said earlier testimony indicated there are seven or eight states with this type of preservation of evidence. Chairman James asked for the statutes of these states. He said Mr. Carroll indicated there might not be statutes but rather case citations/law. Mr. Carroll agreed to research this further; Mr. Graham agreed to consider another way to preserve evidence and testimony.

Chairman James closed the hearing on S.B. 192 and opened the hearing on S.B. 179.

SENATE BILL 179: Provides that statement of child regarding physical abuse is admissible in criminal proceeding under certain circumstances. (BDR 4‑472)

Mr. Graham opened his testimony stating, “This bill is asking this committee to consider expanding the availability of admissions of young people who have been physically abused.” In 1985, this Legislature adopted an exception to the hearsay rule for sexual abuse, because in 1985 there was a considerable concern about sexual abuse but not as much for physical abuse. Maybe, he offered, it was not as prevalent as sexual abuse or perhaps just not reported as much as it seems to be today. He acknowledged Ms. Monroe, who has prosecuted dozens of physical abuse cases. He explained Ms. Monroe travels around the state assisting in trials resulting from physical abuse. These cases are not ones questioning whether a child was abused. Generally there is a relatively good idea who perpetrated the abuse of the child. We are here today, he said, to ask to have these young victims corroborate the evidence with regard to the suspect. The district attorneys regard this as a reliable expansion to the legal process. This evidentiary expansion request closes some currently existing loopholes, he explained. He said, “Ms. Monroe deals with some very difficult cases; she brought some photos and examples of the kinds of cases she handles that I am not sure the committee even needs to see” (Exhibit D).

Ms. Monroe said as a chief deputy district attorney with Clark County, she worked as a member of the special victims unit for 9 years. She explained her background is in nursing and this placed her into the pattern of prosecuting child abuse and child sexual abuse for those years. She said she studied NRS 51.385, “Admissibility,” which the proposed S.B. 179 would amend to include hearsay exceptions for physical abuse cases.

Ms. Monroe added she did a study on hearsay for exceptions and found trustworthiness to be tantamount, and reliability of the statements made by abused children to be most valuable for consideration of a hearsay exception. She talked about a case she prosecuted in 1997, wherein a man who pleaded guilty to sexually abusing a 9-year-old child 4 years earlier, had his conviction reversed. Ms. Monroe said her position required her to go to the abused child and inform her she had to go to trial even though it was 4 years after the crime.

In preparing for trial, Ms. Monroe said she had to check medical records and found this child had said to a nurse 4 years earlier, “I wish I was a bird because then I could fly away from the evil snake that did this to me.” Ms. Monroe said the chance of a child recalling that statement 4 years after the fact were slim. She was able to use the nurse’s testimony from her recollection of what the child said to her during her hospitalization for the injuries suffered in the abuse case. She went on to say S.B. 179 addresses the use of this kind of statement.

Ms. Monroe added, physical abuse is every bit as sad as sexual abuse, and though these abused children are brought into court only when necessary, it is clearly traumatic for them to look at the person who hurt them, “often their daddy or mommy’s boyfriend.” The children realize, she explained, there may be repercussions to their testimony against someone they love. She said sometimes the child is unable to appear in court to testify because he or she is dead. Ms. Monroe said she has to prove two things: who did it and did this abuse result in the child’s death. It is her job, she explained, to determine if it is the child’s mother, father, or caregiver who abused the child and present findings to the jury. The hearsay exception clause could allow the court to accept the abused child’s words to another, or testimony regarding the abuse, but, she said, it is not always permitted. To illustrate, Ms. Monroe cited a videotape of a child and his mother being videotaped by the mother’s boyfriend, who subsequently murdered the child. She said, the look on the child’s face in the video spoke volumes about his fear of this man, but, she explained, this is considered hearsay evidence. Hearsay is not always allowed, she iterated.

Chairman James thanked Ms. Monroe for her testimony and invited Ms. Thomas and Mr. Morrow to come forward with comments. Ms. Thomas stated the Nevada Attorneys for Criminal Justice are opposed to S.B. 179 because it violates the confrontation clause and the cross-examination clause of the Sixth Amendment to the United States Constitution. She stated there is no effort to minimize child physical abuse cases; they are serious and tragic. Ms. Thomas added there are tragic cases where people have been falsely accused of these offenses, because they are easy accusations to make. Ms. Thomas strongly disagreed with Mr. Graham’s assertion, “There is generally no question that physical abuse took place,” arguing there are some cases where there is no question about the abuse, but often divorcing or feuding parents manipulate their children to pit them against the other parent. In sexual abuse cases, there are other issues such as medical evidence or uncommon sexual knowledge for a child; however, she said, in physical abuse cases those factors are not present.

Chairman James asked if those kinds of matters would be clarified at the hearing. He cited a case, “wherein the Supreme Court of Nevada set out five different indicia determined at the hearing validating the non-violation of the confrontation clause.” Chairman James added there are a number of cases where hearsay testimony is thrown out because there was no determination of sufficient evidence of reliability and trustworthiness, or because the hearing was not held. It seems, he reasoned, if a statute works well and seems to be constitutional, then constitutionality should not be a concern of this committee.

Ms. Thomas repeated sexual abuse is different from physical abuse, and mentioned again a child’s fear of coming into court to testify and the use of the hearsay procedure. Long prison sentences of 20 years, 40 years, or life in prison are rendered for physical abuse convictions. She cautioned, before someone’s life is essentially taken away, an opportunity to bring a witness in for the purpose of determining the credibility of a hearsay witness for the jury is needed. Leading, suggestive language, or clever questioning of a child witness, or manipulative presentation of events may cloud or confuse what really happened.

Chairman James asked about children who are deceased and whether applicable hearsay statements such as excited utterance, state of mind, or a dying declaration contained all the indicia of trustworthiness and reliability set forth by the court.

Ms. Thomas responded there is a need for a high burden of proof. She stressed the importance of clear and convincing evidence. Using as examples of unclear or unconvincing evidence in statements “maybe,” or “probably . . . this happened,” she called it unfortunate when a defendant cannot confront or cross-examine the evidence against him and is convicted.

Chairman James said:

The clear import of the provisions of NRS 385 [Chapter 385 of NRS] is that the court must affirmatively determine the reliability of each hearsay statement or series of statements regarding the transaction or event before admitting the statement into evidence. If the trial court determines the child’s statements are reliable, it should then make specific findings of fact embracing the determination of reliability considering factors set forth in the U.S. Supreme Court case of Idaho v. Wright, and explain why it concluded the cross-examination would add little to the determination of reliability.

Chairman James suggested codifying this case and stated he did not see any substantial difference between sexual and physical abuse.

Ms. Thomas agreed, suggesting the word “must” replace the word “should” with regard to making specific findings. Additionally, she said codifying this case would address the majority of the concerns. She reiterated the burden of proof should be spelled out. In addition, Ms. Thomas said it should be made abundantly clear the entire hearing needs to be recorded to preserve testimony for a later date.

Chairman James asked for clarification the evidence codes include the burden of proof. He said it is the discretion of the court, but added there is a standard to be used. He said he felt codifying the State of Nevada v. Felix, 1985 [Felix v. State, 109 Nev. 151, 849 P.2d 220 (1993)], the standard set forth by the indicia of the supreme court, and adding physical abuse to the law was a good amendment to existing law.

Mr. Graham said the cases cited in this hearing are significant and severe; lesser cases or those without merit, he said, are weeded out by law enforcement and the district attorney’s office.

Gemma Greene Waldron, Lobbyist, Washoe County District Attorney’s Office, said she researched the history of the 1985 case cited here which makes a point of mentioning hearsay evidence. Hearsay evidence, she reasoned, might be far less damaging to a child than having him repeat over and over again painful testimony. She distributed copies of the legislative history of hearsay evidence for the committee (Exhibit E).

Chairman James closed the hearing on S.B. 179 and adjourned the meeting at 10:25 a.m.

RESPECTFULLY SUBMITTED:

Ann Bednarski,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

DATE: