Assembly Bill No. 397–Assemblyman Brower

 

March 16, 2001

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Referred to Committee on Judiciary

 

SUMMARY—Provides for admissibility in evidence of certain statements made by unavailable declarants. (BDR 4‑997)

 

FISCAL NOTE:            Effect on Local Government: No.

                                    Effect on the State: No.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to evidence; providing for the admissibility of statements made by an unavailable declarant concerning the infliction or threat of physical injury upon the declarant under certain circumstances; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1    Section 1. Chapter 51 of NRS is hereby amended by adding thereto a

1-2  new section to read as follows:

1-3    1.  Except as otherwise provided in subsection 3, a statement is not

1-4  excluded by the hearsay rule if:

1-5    (a) The statement of the declarant describes or explains a threat of or

1-6  actual physical injury, inflicted upon him;

1-7    (b) The statement was made at or near the time of the threat or

1-8  infliction of physical injury upon the declarant;

1-9    (c) The statement of the declarant was made in writing, recorded

1-10  electronically or made to a law enforcement officer;

1-11    (d) The declarant is unavailable as a witness; and

1-12    (e) The court finds that the time, content and circumstances of the

1-13  statement provide sufficient circumstantial guarantees of

1-14  trustworthiness. In determining trustworthiness the court shall consider,

1-15  without limitation, whether:

1-16      (1) The statement was prepared in anticipation of litigation or for

1-17  trial in which the declarant is an interested party;

1-18      (2) The declarant has a bias or motive for fabricating the statement

1-19  and the extent of any such bias or motive; and

1-20      (3) The statement is corroborated by admissible evidence other than

1-21  statements that are admissible only pursuant to this section.

2-1    2.  A statement is admissible pursuant to this section only if the

2-2  person offering the statement makes known to the adverse party his

2-3  intention to offer the statement and the details of the statement

2-4  sufficiently in advance of the proceedings to provide the adverse party

2-5  with a fair opportunity to prepare for the statement.

2-6    3.  A statement is not admissible pursuant to this section if it was

2-7  made more than 5 years before the filing of the action or proceeding in

2-8  which the statement is offered as evidence.

2-9    Sec. 2.  NRS 51.315 is hereby amended to read as follows:

2-10    51.315  1.  A statement is not excluded by the hearsay rule if:

2-11    (a) Its nature and the special circumstances under which it was made

2-12  offer strong assurances of accuracy; and

2-13    (b) The declarant is unavailable as a witness.

2-14    2.  The provisions of NRS 51.325 to 51.355, inclusive, and section 1 of

2-15  this act, are illustrative and not restrictive of the exception provided by this

2-16  section.

2-17    Sec. 3.  1.  The amendatory provisions of this act apply to a civil

2-18  action or proceeding filed on or after October 1, 2001.

2-19    2.  The amendatory provisions of this act do not apply to a criminal

2-20  action in which an indictment has been found or a complaint or information

2-21  has been filed before October 1, 2001.

 

2-22  H