(REPRINTED WITH ADOPTED AMENDMENTS)

 

Assembly Bill No. 397–Assemblyman Brower

 

March 16, 2001

____________

 

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 or upon a person to whom the declarant is related by blood or marriage 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 made by

1-4  an alleged victim of an act that constitutes domestic violence pursuant to

1-5  NRS 33.018 is not excluded by the hearsay rule if:

1-6  (a) The statement of the declarant describes or explains:

1-7         (1) A threat of physical injury to or the infliction of physical injury

1-8  upon the declarant; or

1-9         (2) A threat of physical injury to or the infliction of physical injury

1-10  upon a person to whom the declarant is related by blood or marriage;

1-11    (b) The statement was made at or near the time of the threat or

1-12  infliction of physical injury upon the declarant;

1-13    (c) The statement of the declarant was made in writing, recorded

1-14  electronically or made to a law enforcement officer;

1-15    (d) The declarant is unavailable as a witness; and

1-16    (e) The court finds that the time, content and circumstances of the

1-17  statement provide sufficient circumstantial guarantees of

1-18  trustworthiness. In determining trustworthiness the court shall consider,

1-19  without limitation, whether:

1-20      (1) The statement was prepared in anticipation of litigation or for

1-21  trial in which the declarant is an interested party;

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

2-2  and the extent of any such bias or motive; and

2-3       (3) The statement is corroborated by admissible evidence other than

2-4  statements that are admissible only pursuant to this section.

2-5    2.  A statement is admissible pursuant to this section only if the

2-6  person offering the statement makes known in writing to the adverse

2-7  party his intention to offer the statement and the details of the statement

2-8  sufficiently in advance of the proceedings to provide the adverse party

2-9  with a fair opportunity to prepare for the statement.

2-10    3.  A statement is not admissible pursuant to this section if it was

2-11  made more than 5 years before the filing of the action or proceeding in

2-12  which the statement is offered as evidence.

2-13    Sec. 2.  NRS 51.315 is hereby amended to read as follows:

2-14    51.315  1.  A statement is not excluded by the hearsay rule if:

2-15    (a) Its nature and the special circumstances under which it was made

2-16  offer strong assurances of accuracy; and

2-17    (b) The declarant is unavailable as a witness.

2-18    2.  The provisions of NRS 51.325 to 51.355, inclusive, and section 1 of

2-19  this act, are illustrative and not restrictive of the exception provided by this

2-20  section.

2-21    Sec. 3.  1.  The amendatory provisions of this act apply to a civil

2-22  action or proceeding filed on or after October 1, 2001.

2-23    2.  The amendatory provisions of this act do not apply to a criminal

2-24  action in which an indictment has been found or a complaint or information

2-25  has been filed before October 1, 2001.

 

2-26  H