MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session February 13, 1995 The Senate Committee on Judiciary was called to order by Vice Chairman Jon C. Porter, at 9:30 a.m., on Monday, February 13, 1995, in Room 1006 of the Grant Sawyer State Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Mark A. James, Chairman Senator Jon C. Porter, Vice Chairman Senator Maurice Washington Senator Mike McGinness Senator Ernest E. Adler Senator Dina Titus Senator O. C. Lee GUEST LEGISLATORS PRESENT: Assemblyman Jeannine Stroth STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Lori M. Story, Committee Secretary Maddie Fischer, Primary Secretary OTHERS PRESENT: Paula Treat, Lobbyist, Nevada Judges Association Lanny Waite, Judge, Nevada Judges Association Ben Graham, Chief Deputy District Attorney, Clark County David Sarnowski, Chief Criminal Deputy, Nevada State Attorney General Eric Cooper, Representative, Nevada Sheriffs and Chiefs Association John Glenn Watkins, Attorney John "Jack" Howard, Attorney Stewart L. Bell, District Attorney, Clark County, Nevada Patty Robeson, Parent Jeff Burr, Chairman, Board of Trustees, Clark County School District Brian Cram, Superintendent, Clark County School District Lt. Bill Cavagnaro, Legislative Liaison, Las Vegas Metropolitan Police Department Capt. Carl Frug‚, Las Vegas Metropolitan Police Department Greg Harwell, Legislative Representative, American Automobile Association H. Ben Winkler, Safety Consultant, American Automobile Association Bill Koot, Deputy, Clark County District Attorney Richard Wright, Defense Attorney Philip J. Kohn, Attorney, Clark County Public Defender Morgan Harris, Attorney, Clark County Public Defender Senator Porter explained the chairman was testifying in another hearing and would be joining the hearing shortly. SENATE BILL (S.B.) 39: Enhances penalty for commission of assault or battery against member of judiciary. The vice chairman opened the hearing on S.B. 39 and called the first witnesses. Paula Treat, Lobbyist, Nevada Judges Association, and Lanny Waite, Judge, Nevada Judges Association, addressed the committee. Ms. Treat offered some background information about the bill, stating it was originally suggested during the 67th session but was introduced too late in the session, which precipitated the need to wait for the current session. She noted there had been some problems which this bill addressed. She introduced Judge Waite, who told the committee that the Nevada Judges Association feels the bill is good and necessary, noting that special protections in the Nevada Revised Statutes are currently offered to police officers, fire fighters, school officials, but the need remains to protect judicial officers. He pointed out that many times there are parties in courtrooms who are unhappy with the proceedings, which could result in uncontrollable anger. He stated that approximately 60 percent of the state's judges are in outlying jurisdiction, many of whom do not have bailiffs and the protection that they afford. He added that he feels this bill offers the needed protection through statute. Senator McGinness asked what substantive difference this legislation would make. The judge responded this legislation is an enhancement and an added deterrent to acts of violence against specific public officers in potentially dangerous situations. Ms. Treat added that many violent persons do not care who they are violent against, unless there is some additional incentive in place to avoid violence against them. Judge Waite pointed out that many of the situations in lower courts involve instances of domestic violence and stalking and that since these situations are inherently violent, the added protection for the court officers is even more relevant. Senator Porter, after reminding the audience that during the hearings in Las Vegas no action could be taken on any bills being discussed, asked if there were further questions for the witnesses. There were none and the senator excused them. SENATE BILL 157: Revises provisions governing use of affidavit or declaration in lieu of testimony of expert witness as to existence of alcohol or controlled substance. The vice chairman opened the hearing on S.B. 157. He called on Ben Graham, Chief Deputy District Attorney, Clark County, Nevada. Mr. Graham addressed the committee explaining the process of prosecuting driving under the influence (DUI) cases along with the tests and professionals/technicians involved in determining the blood alcohol level of the DUI suspect. He pointed out the steps taken to ensure the accuracy of the breath and blood tests including multiple breath tests taken of one individual, the regular calibration of the breath machines, and the careful control of the solutions used in the tests. Mr. Graham explained that a suspect can elect to take a blood test. The blood is drawn from the individual by a registered nurse, he explained, and forwarded in a sealed container to a certified laboratory where it is tested for blood alcohol level. The results of this test are reported to the district attorney, along with an affidavit from the nurse, lab technician or chemist, forensic specialist, and breath machine calibrator attesting to his or her qualifications and experience, along with the condition of the evidence when delivered and the most recent time the machines were calibrated (Exhibit C). The question before the committee, Mr. Graham noted, deals with the need to have the experts who signed the above mentioned affidavits present in person in the courtroom at the preliminary hearing. He explained that many of these experts are frequently demanded to be present by the defense, in the hopes that they will have some time conflict and be unable to attend, thus forfeiting the prosecution of the DUI. Mr. Graham stated that this bill, if passed, would have a much greater impact upon the prosecution of DUI cases than any proposed lowering of the blood alcohol level standard. He asked the Legislature to authorize the use of the affidavits to prove the blood draw, and the alcohol level of the blood, as examined by the experts. He asked that these affidavits be sufficient evidence for the prosecution, while still allowing the defense to subpoena the experts if they wish, in order to ask any questions they might have. He told the committee the burden of proof is still with the state, this is not being shifted, but the defense would have to call the witnesses if questions arose in regard to the affidavits. He asked for questions. Senator Adler asked whether Mr. Graham felt there is a constitutional problem with the bill. Mr. Graham denied this, stating there is no limit being set to the right to cross-examine the witness. He pointed out such laws had been upheld in other states as a "rebuttable presumption." Senator Porter asked why there is only one person in the state certified to calibrate the breath machines. Mr. Graham replied there was actually one calibration expert for the north and one for the south, and that he does not understand why there is such a limited number of them. Senator McGinness asked if affidavits of this type are used in any other court proceedings. Mr. Graham said that there are affidavits frequently used in numerous other proceedings, unless the defendant demands the expert's presence. He further noted there would be amendments proposed to the bill, apologizing that they were not yet available. Senator Lee summarized the current state of the requirement that the state bring the expert witnesses if the defense demands, and the taxpayers pay the expert fees. He asked if the defense had to bring the witnesses, who would pay the fees. Mr. Graham answered it would be the defense who would pay the "standard witness fees." Senator Adler noted that the reason for the current setup is the prosecution's burden of proof and the experts are essentially the prosecution's witnesses. Mr. Graham argued that the affidavits are proof enough. He asked the senator if, in his personal courtroom experience, he had ever seen any of the witnesses called by the defense actually examined by counsel. Senator Adler pressed further, pointing out there are instances of serious crime that might fall under this legislation, such as murder or DUI with substantial bodily harm. Mr. Graham insisted they are only addressing DUIs in this case and if the defense feels there is a "hole in the case" they will go and interview the expert witnesses and call them to testify, if needed. The vice chairman next called David Sarnowski, Chief Criminal Deputy, Office of the Attorney General, to testify in favor of the bill. He explained that, while generally the attorney general's office is not involved in such cases, there are instances where they might become involved. He emphasized the burgeoning costs imposed upon the state by being required to produce these expert witnesses in order to prove the case. He stated the attorney general's office feels these affidavits are sufficient and should be allowed as such. Mr. Sarnowski offered a personal experience which pointed up the truth of Mr. Graham's testimony of "game-playing" by defense attorneys. He also wished to clarify that in the case of indigence of the defendant, the state would pay the cost of any experts called as witnesses. Mr. Graham asked to clear up the number of personnel qualified to calibrate the breath machines in the state. He stated he is informed there are actually two persons in the south and two in the north who can calibrate the machines, and who are frequently called to testify in any of the many courts in the state. The number of courts that hear such cases is the real problem for the experts, Mr. Graham explained. Senator Porter asked Mr. Graham whether the experts must appear in court under the current legislation. Mr. Graham responded that the affidavits could be used if the defense counsel agreed to it. However, they do not agree to it, "as a matter of routine." Mr. Graham further noted that he had personal experience as a defense attorney and he had frequently won cases in the very same manner, by demanding the presence of experts. Senator Porter asked if this is a loophole that defense attorneys use. Mr. Graham agreed that is the case. Eric Cooper, Representative, Nevada Sheriffs and Chiefs Association, addressed the committee. He mentioned that he spoke in the absence of Clark County Sheriff Jerry Keller, who was originally going to appear. He stated he had previous experience as the administrator for the metropolitan police department, and in that capacity found the work load on the chemists is heavily impacted by the requirement to testify constantly. He told of frequent requests by the crime lab's director for additional staff to cover those who were out of the lab to testify. Mr. Cooper testified that the bill under consideration is much more acceptable to the sheriffs and police chiefs in the state. He explained that there were annual requests for additional chemists to keep up with the work load because so many were absent to testify in court. He urged the committee's favorable consideration of the bill. John Glenn Watkins and John "Jack" Howard, Defense Attorneys, next appeared as witnesses in opposition to the bill. Mr. Watkins spoke first offering some personal background. He stated his opposition to the bill and offered several handouts to the committee. Mr. Howard introduced himself and also offered his personal background to the committee. Mr. Watkins resumed his testimony agreeing with Mr. Graham's remarks about being friends and adversaries. He stated while Mr. Graham supported this bill, he is in error. Mr. Watkins expressed his view that this legislation would streamline the process at the expense of the United States Constitution. He noted that Mr. Graham's explanation of the breath test process was erroneous in that only two tests are usually taken. A third is required, he stated, if the first two tests do not agree within .02 percent of alcohol. If this test does not agree, the defendant is required to take a blood test or lose their driver's license for 1 year, Mr. Watkins continued. Mr. Watkins referred to Exhibit D which is a copy of the 6th Amendment to the United States Constitution. He pointed out this amendment says an "individual is to be confronted with the witnesses against him" without calling these witnesses himself and expending money in the process. Mr. Watkins agreed that no one in the room wanted drunk drivers on the highways, but, in his opinion, the state is trying to treat DUIs differently than any other crime. Mr. Watkins referred to Exhibit E, an excerpt from a brief he had filed which points out the importance of cross-examination in the practice of law. Next, Mr. Watkins spoke of an article in Reasonable Doubt (Exhibit F) that deals with the right to cross-examination and its importance in society. Moving on, Mr. Watkins took exception to the statement made by Mr. Graham, when the experts are called the defendant pleads guilty. He stated this was untrue because he and Mr. Howard would always cross-examine the witness to ascertain the truth. He offered examples of some things that might come to light if the experts were examined (e.g., the condition of blood draw kits). Mr. Watkins showed the committee copies of affidavits (Exhibit G) which he exclaimed to be "a fraud upon the citizens of the State of Nevada." He pointed out wording in the affidavits that should be the subject of further examination, which would reveal that the witness was not actually qualified as an expert witness in the area of law being tried. He further offered examples of information brought out in trial through the process of examining the expert witness (e.g., out-of-date solutions used in calibrating breath machines) (Exhibit G, pages 9-14). Mr. Watkins emphasized the problems with breath machine calibration and solutions which do not become apparent through the use of affidavits, but only through the cross-examination of witnesses. Mr. Watkins stated that he disagrees with Mr. Graham's representation that most defense attorneys require the presence of the experts. He stated there are only "a few attorneys that actually object" to the use of the affidavits, but he felt it is malpractice not to "have the state bring their witnesses in." Senator James took the chair at this point, and excused himself from the first part of the hearing. He asked exactly how the bill's supporters dealt with the "confrontation issue." Mr. Watkins stated that Mr. Graham felt it did not apply. Senator James further noted that existing law allows the use of affidavits under some limited circumstances. Mr. Watkins stated that under NRS 50.315 the prosecution is required to give the defense 10 days notice that they intend to use the affidavits. If the defense decides they want the witnesses present, they must give the prosecution 96 hours notice, he continued. In other words, the senator noted, the prosecution must have the agreement of the defense to use affidavits. Mr. Howard addressed the committee concurring with Mr. Watkins and adding he feels the prosecution wants all to believe the affidavits "are self-proving documents, that why would one of their experts lie or fabricate, or under what circumstances could an error be committed." He suggested there are "countless" instances of error in the machine. This error, he noted, could be inherent in the machine, or it could be human error. Mr. Howard next turned to the cost of bringing the expert witnesses in every instance. He stated that in many instances, in the face of a breath machine blood alcohol finding, the attorney simply suggests the defendant plead guilty in hopes of a "good deal." However, Mr. Howard offered the committee personal experiences where calling and cross-examining the experts resulted in dismissal of the charges due to inaccuracies and falsehoods in the affidavits. Senator Adler had a question he addressed to the witnesses and to Mr. Graham. He stated he was troubled by wording in the bill which tends to shift the burden of proof to the defendant. Mr. Graham responded that one of the proposed amendments to the bill removed that language. Senator Adler continued his query wondering whether the defense had to make its whole case before having any opportunity to subpoena the witnesses. Mr. Watkins responded he felt the senator was reading the bill correctly, and he added that it applies not only to misdemeanors but to any DUI trial or to a homicide resulting from DUI. Stating the best tool of the defense attorney is legislative change, he said this bill gives the defense attorney an "absolute 105 shell" and sends the case to federal court. Mr. Howard noted that the defense typically does not have full information concerning the test. He stated that it is a practical impossibility to lay a foundation of doubt without being able to first examine the expert witness. Senator Adler reiterated his concern about the ability to cross-examine a witness and the possibility of a precedent being set that would overturn hundreds of DUI convictions. Mr. Watkins spoke of the Patricia McLean case that went to the federal court which did, indeed, result in a need to change the law. The chairman called for further testimony on S.B. 157. Stewart L. Bell, District Attorney, Clark County, Nevada, moved to the witness table. He stated his desire to make the bill simpler, cleaner, fairer, and cheaper. He offered Option 3 (Exhibit H) as a subsection to NRS 50.315, which eliminates NRS 50.325 altogether. Mr. Bell reviewed for the committee the current process. He then summerized the proposal as eliminating the 10 day letter notice to defense by prosecution and the 96 hour notice to prosecution by defense. He stated, if the defense wants the witness, let him pay and bring the witness, because as it now stands the district attorney's office has one secretary who spends half of her time doing nothing but 10-day letters and in cases where these deadlines are missed, a substantive case is lost due to procedural failings. He explained the bill would allow the affidavits as evidence unless the defense does not want them. Addressing the "confrontation clause," issue, Mr. Bell suggested that the person who calibrated the breath machine is not the accuser in the case and is, therefore, not necessarily a witness subject to confrontation by the accused. Further, he noted there are lots of exceptions to the "hearsay rule" including medical records, because they are "inherently reliable." Mr. Bell pointed out the biggest prosecution problems arise in the rural areas. He stated, in his experience as a defense attorney in an outlying area, he always called the expert, hoping they would not show up. There was no issue involved when he called these witnesses, he noted, and there usually is not an issue. He reiterated that this change would not preclude either the defense or the prosecution from bringing witnesses and, further, it would clean up the process and make it much more equitable. Senator James asked Mr. Bell specifically about the proposed change (Exhibit H), whether he would replace the whole bill with the suggested section 8. Mr. Bell replied in the affirmative, stating that this addition to the first section of NRS 50.315 would simply eliminate the 10-day letter process, allowing either side to subpoena witnesses they felt were necessary to the case without being disadvantaged by some procedural technicality. He assured the chairman that if a witness, who has been subpoenaed, becomes unavailable the hearing can be continued. Mr. Bell further explained his proposal as inserting Option 3, number 8 (Exhibit H) at the end of section 1 of NRS 50.315 and completely doing away with NRS 50.325. The chairman was concerned that a conviction could be obtained by using an affidavit that was not necessarily faulty on its face, but would be shown faulty under cross-examination of the witness. Mr. Graham pointed out that Mr. Watkins' testimony regarding the faulty affidavits is irrelevant because a defense attorney would simply have to point out the fault on the face of the affidavit once it was introduced as evidence. Such a fault would be sufficient to have the affidavit removed as proof, Mr. Bell noted. Mr. Bell continued that in 99 percent of the cases the introduction of such affidavits or evidence is "perfunctory" and it is only in the cases where the expert is not readily available, as in the outlying areas, that their presence becomes "necessary." Senator Adler stated that his concern with the proposed amendment is that it states the defense is to be provided with the reports from the experts although it is his understanding that the statutes do not require this. Mr. Bell stated it is a matter of law to provide experts' reports to the defense. Mr. Graham offered his assurances that if the instant bill is passed, future bills dealing with discovery would require production of these reports to defense as early as possible. Senator Porter asked what percent of DUI cases are won or lost due to "no shows" by expert witnesses. Mr. Bell explained that while cases are not usually completely dismissed because of a "no show," they did frequently result in a reduced charge plea negotiation. Mr. Bell guessed that the percent is "more than 10 and less than 33." Senator Porter then inquired how many of the guilty parties ended up "on the street" because of a technicality. Mr. Bell responded that it is not really an issue of "on the street" because these are frequently misdemeanor cases that would not result in jail time, but more an issue of guilt supported by evidence that cannot be introduced due to technicalities. He emphasized the purpose of the bill is to "promote justice," to "prevent injustice," and "to save money, somewhere in the neighborhood of tens of thousands of dollars." The chairman called for further testimony. Mr. Watkins asked to comment on the proposed amendment (Exhibit H) stating it is worse than the original bill. He referred the committee to the legislative history of NRS 50.315, which is concerned with the "confrontation clause." Senator James entered into the record a letter from Mothers Against Drunk Drivers (MADD) in support of the bill (Exhibit I). He noted the bill would be addressed again in a work session. The hearing was closed. SENATE BILL 120: Limits civil liability of county school districts, local law enforcement agencies and certain other persons with regard to volunteer crossing guards for schools. Chairman James opened the hearing on S.B. 120. He introduced the bill himself, along with Senator Porter. Senator James explained the bill originated from town meetings where concerns were expressed about the availability of paid crossing guards at elementary schools in the area. Senator James told of parents at the town meetings asking why they, as parents and members of the Parent Teacher Association (PTA), could not go out to the crosswalk near their homes and act as crossing guards during the morning and afternoon hours. He noted that a concern regarding liability was raised, as to who would be liable if there was a problem. The senator said he offered to introduce a bill to the legislature that would insulate such parents and other parties (the police department or the school district) from liability. He explained immunity would appy if the volunteers participated in an organized program and received special training. Senator James continued his explanation, pointing out the bill sets up a training program for parents or other interested volunteers, and if they go through the training program, they would be considered state employees for the purposes of immunity statutes. Further, he noted there still exists some question as to what organization--the school district or the police department--would run the program. The chairman introduced Patty Robeson, a parent of three school-aged children. Ms. Robeson explained to the committee there is a quota or minimum amount of traffic required through a crosswalk before it qualifies for a paid crossing guard. She told that, while the crosswalk her children use does not qualify for a paid guard, there was a child hit by a car at the crosswalk that year. She explained that parents who inquired about acting as crossing guards were told the PTA would be liable for any accidents that occurred because they are members of the PTA. Further, she noted, the school district explained once the child walks off the curb at school, the school district is no longer responsible for him or her, and if a school district employee acted as a crossing guard, the school district would have to assume liability. The school district is further limited by instructional time requirements for the employees, she stated. It was with this information, Ms. Robeson continued, that the parents decided to act as crossing guards and, after receiving training from the police department and having a background check, they have done so since the start of this school year. She pointed out that, under the training of the Las Vegas Metropolitan Police Department, they do not direct traffic, nor do they hand out tickets, they simply help the children cross the street safely. Ms. Robeson stated that she had been contacted by other schools who are also interested in the program, and she feels it is very important to encourage the parental involvement this program promotes. Senator James next called Brian Cram, Superintendent, Clark County School District, and Jeff Burr, Chairman of the Board of Trustees, Clark County School District, to testify. Mr. Burr started off by stating he likes the idea of the bill because it helps the school district in their budget crunch through the use of volunteers. He agreed the liability issue is on everyone's mind and he defended the school districts need to use teachers time fully in the instructional area, which limits their availability in outside areas. He asked that the bill be modified to name the police department as the party responsible for training parents in the program, because the school district "needs to concentrate on their instructional duty." Mr. Cram spoke next, reiterating the district's support for the general concepts of the bill, but asked for specific changes in the bill, lines 9 through 12, assigning the training of program participants to the appropriate police agency. He noted that the school district is very concerned with the safety of the children, but their funds are limited, which necessitated limitation of their off-school grounds involvement. He offered to "enthusiastically recruit" individuals into the training program. Lieutenant William Cavagnaro, Las Vegas Metropolitan Police Department, and Captain Carl Frug‚, Las Vegas Metropolitan Police Department, testified next. Lt. Cavagnaro passed to the committee a flow chart of the process for assigning paid crossing guards (Exhibit J). He agreed with the testimony of Ms. Robeson that there is a particular criteria to be met before a guard can be assigned. He also agreed that when a particular crossing area does not meet the criteria, the PTA will organize a volunteer crossing guard group. He stated the Las Vegas Metropolitan Police Department trains the group coordinator, who in turn trains the other participants. They also provide a hat, sign, manual, and instruction book, he noted. Lt. Cavagnaro expressed the department's agreement with and support of the bill, but asked that the committee keep in mind that the police department would need a centralized representative of the parent groups to deal with. He explained that it would be too cumbersome and confusing to try to deal with individual parent groups. Senator James asked Lt. Cavagnaro if the police department has a problem with the school district's request that police agencies develop the training program, as long as the PTA provides a centralized representative. Lt. Cavagnaro stated the belief the police department would not have a problem with providing the training, although it is not the only possible training source, as long as there is a centralized representative of the PTAs. Captain Frug‚, of the Las Vegas Metropolitan Police Department's Traffic Bureau, addressed the committee. He explained to the committee, in greater detail, the process of assigning crossing guards. He noted there are 120 authorized crosswalks, and currently only 103 crossing guards. Because of the wage ($7.00 an hour) and the short work day (3 hours a day), there is some difficulty in employing people for the positions. Captain Frug‚ agreed the department could "administer the training for the volunteer coordinators, provide the logistic materials needed to do the job properly, and make sure the community recognizes them as representatives of the Metropolitan Police Department's crossing program." But, he also spoke to the need for a "centralized and bona fide representative of a community of interest for this school." He stated he felt the PTA is the right organization to provide a representative through whom he could coordinate, communicate, and monitor for compliance with the safety regulations. Senator Adler questioned his own reading of the bill to say the PTA would be the entity liable for negligent acts by the volunteer crossing guard. After some discussion, the chairman referred to NRS 41.035 and NRS 41.039, the immunity provisions for public employees, and stated that it is not the intent of the bill to put liability upon the PTA. Captain Frug‚ pointed out NRS 41.480 and NRS 41.485 address the "good samaritan" aspect of the volunteer programs and allows for limited liability protection when due care is exercised. He stated these statutes will not protect against gross negligence or willful or wanton acts, but with the training program in place these issues should not arise. Senator Adler persisted with his question about who would pay medical bills should an accident occur. Captain Frug‚ stated that even under the paid program it was not set out because each instance is different and liability could lie with the carelessness of the child or with the driver of the vehicle. With the anticipated increase of volunteerism in this area, Captain Frug‚ noted, it is very important that the good samaritan statutes be effective and utilized. Senator Porter read to the committee the portion of the bill (line 10 on page 2) as proposed, and asked the committee to assume there were no liability policies held by either the PTA or the volunteer. He then stated it is his understanding that the bill allows a judgment to be entered against the individual or the PTA. He stated he felt the bill does not really protect the volunteer, despite its intent. Senator James responded the section referred to by Senator Porter was not the section limiting liability. The correct section is section 1, he pointed out. Lt. Cavagnaro reminded the committee that fault would most likely lie with the driver in any accident once the proper training had been taken by the crossing guard. Senator James stated that he would use the assistance of the bill drafters to make sure that the intent of the bill (i.e., limiting the liability of volunteer crossing guards and the PTA) would be properly outlined in the bill. He reiterated that the intent of the bill is to foster the volunteer program already in place and to allow it to expand without liability, as long as the volunteers participate in the training program. Senator Porter agreed that the bill is a good idea and asked that the limits of liability be specifically outlined in the bill. Senator Lee commented that he supports the idea behind the bill as well as concurring with Senator Porter's concern about exposing volunteers to liability. He queried if the volunteer, under the bill, holds the status of a state employee, who would be responsible for the $50,000 liability limit set by statute for state employees. Senator Titus mentioned her recent involvement in securing a crossing guard for a school in her district and thanked the police department for their assistance in that matter. Senator Washington wished to clarify for the committee that in his reading of the proposed bill at section 4 referring to NRS 41.0335 "no action may be brought against...a person volunteering as a crossing guard," no action could, indeed, be brought against the individual in his volunteer capacity. Captain Frug‚ closed his statement by claiming the Las Vegas Metropolitan Police Department's wholehearted support for the bill and his hope the technicalities could be worked out so the volunteer program could proceed. Next to address the committee was Gregg Harwell, Legislative Representative, American Automobile Association (AAA), and Ben Winkler, Safety Consultant, American Automobile Association. Mr. Harwell spoke regarding two handouts he provided the committee, School Safety Patrol (Exhibit K. Original on file in Research Library.) and Traffic Safety Programs (Exhibit L. Original on file in Research Library.). He stated that the bill goes a long way to promote safety for school children and also toward the promotion of volunteer program which enhances the safety of school children. He noted that AAA feels it is important to "carve out a safe harbor" not only for the adult volunteers, but for the school children who participate in the "Safety Patrol" crossing guard program. Also, Mr. Harwell expressed his concern that private and parochial schools be included in the legislation and the program generally. Mr. Winkler briefly outlined the traffic safety program of AAA. He noted that AAA has two distinct programs of "safety patrol," one which utilizes fifth and sixth grade students as crossing guards, and one using adults. He explained the differences in these programs, noting that the youth safety patrol also promotes leadership and responsibility in the participating children. Mr. Winkler told of research sponsored by AAA which showed that, in over 70 years of safety patrol activity, there had not been "even a single judicial finding of school liability." He suggested the worry of liability might most likely surface as a result of work overload or concern within the school district or the police departments. He asked if this was raised as a "concern or an excuse not to implement one of these programs." At this point the chairman asked Mr. Cram whether there were any such programs in the Clark County area. Mr. Cram responded that there are no such programs, and "quite frankly, we have no interest in such a program. We don't want children out in the streets any more than they have to be." Additionally, he pointed out that many of the schools are on very busy streets. Mr. Winkler agreed that the use of children as crossing guards did depend upon the locale and the population of the town. Senator James noted that the legislation before the committee focuses on adult volunteers and concurred that streets where most of the schools are located are, indeed, very busy and dangerous ones. As a close, Mr. Winkler emphasized the great need for a training program in order to avoid questions of liability. Senator James thanked the speakers and pledged to work with the bill drafters to clear up the language within the bill in order to make it work within its intent. He then closed the hearing on S.B. 120. SENATE BILL 166: Requires criminal defendant to serve notice to district attorney of witnesses defendant intends to call at trial and allows criminal defendant and district attorney to discover certain matters. The chairman opened the hearing on S.B. 166. He called Ben Graham, Chief Deputy, Clark County District Attorney, to explain to the committee the background of the bill as well as its need or intent. Mr. Graham told the committee about the discovery process in criminal court proceedings. This process, Mr. Graham explained, includes the prosecution providing the defense with copies of the arresting officer's report, witness statements, Breathalyzer findings (if applicable), and any other supporting documents the state might offer to prove the defendant's guilt. In Clark County, all that is required to trigger this information release, according to Mr. Graham, is a single piece of paper from the defense requesting discovery. Because this policy was not in effect in other areas of the state, the defense bar proposed legislation in 1993, that required the state to open their file and show the defense everything in it. This, Mr. Graham maintained, was without any requirement that the defense do the same, and it is felt by many there should be some balance. As a result, the attorney general's office, with the support of the district attorneys association, submitted a compromise bill "to counter what the defense had asked for, which would call for open reciprocal discovery." That bill, Mr. Graham mentioned, went nowhere due to divisions between the north and south parts of the state. At this point, he asserted, the state is asking for expert witnesses, percipient witnesses, and notification of these with some lead time or notice from the defense. Mr. Graham recognized there would likely be some disagreement among the various groups as to constitutionality of the discovery mandates. Bill Koot, Deputy District Attorney, Clark County, spoke next. He told the committee of his considerable previous experience in the civil practice of law where reciprocal discovery prevails. On the other hand, Mr. Koot maintained, criminal law is much different with the prosecution being required to put the defense on notice of their theory of the case; they are required to provide all evidence that "may assist the defendant," anything that may tend to exonerate the defense; they must give witness lists (in the case of an Information but not an Indictment); they must give reports generated by any experts; upon motion, they must make available for "view and review" all physical evidence the prosecution may hold; and, any statements made by the defendant and recorded by the police or prosecution. Mr. Koot continued noting the only reciprocal discovery statute currently in effect only requires the defense to provide to the prosecution any report that may be generated by any expert witness the defense may call. Mr. Koot observed that a simple way to subvert this requirement is to instruct the expert not to prepare a report. Mr. Koot speculated the impetus for reciprocal discovery in the criminal courts is the increase in use of "the mental health expert" who is called to "offer an expert excuse or reason why a person acted as he did." Mr. Koot emphasized these experts are not called in order to lay a foundation for an insanity plea, but more to explain how socio-economic factors impacted the defendant and contributed to his or her reaction to a situation or caused the criminal action outright. This, in hopes of reducing the impact of the criminal behavior and, subsequently, the punishment or sentence, he noted. Since there is no duty on the part of the defense to provide discovery, the prosecution is left to stumble through cross-examination of an expert witness, without any real clue as to their background, their philosophy or their findings regarding the defendant or the crime, Mr. Koot stated. He explained the main goal of the bill is to acquire some notice of expert witnesses, and any reports or parts of reports that are not exempted through privilege or confidentiality requirements, prior to the trial, "say 30 days before trial." Mr. Koot next addressed the request for notice of percipient witnesses (i.e., someone who witnesses the crime). These types of witnesses, he explained, are becoming more prevalent in "gang type" crimes in which police go into a hostile neighborhood investigating a crime and can find no witnesses. He admitted this may be a result of poor investigation by the police, but more likely, he noted, it is because "of the realities of that particular area or that particular scene." What results, Mr. Koot stressed: ...is that the prosecution comes up with maybe one or two eyewitness that you've been putting in a witness protection program, or one eyewitness, and they come up with five gang members who come in and testify that they saw the whole thing and it didn't happen that way. Because of the recent development of such scenarios, Mr. Koot asked that the names of percipient witnesses be provided during the discovery process as required by the proposed bill. A third area of discovery requested by the state, Mr. Koot continued, is a list of witnesses. He concluded that there is a lot of opposition to this last item, noting these new requirements might be overwhelming for the defense, since in the past they have not been required to give anything. Moving to the time line set out by the bill, he stated his own feeling, as a prosecutor, is that receiving the list of impeaching or character witnesses in enough time to do a criminal and background check on them, would be sufficient, "say, 24 hours before the defense puts on their case." He assured the committee the things covered in the bill "are, indeed, constitutional." He pointed to the cases of Izazaga v. Superior Court, 815 P.2d, 304, 1991, and William v. Florida, 90 S.Ct., 1893, 1970, for confirmation of the constitutionality of such a law. Senator James requested that copies of the full text of the two cases be provided to the committee. Mr. Koot agreed. The chairman then summarized his understanding of the bill's content and there was discussion of amendments to the time line for production of expert and percipient witness lists and reports from 30 days prior to trial to 21 days. He also clarified the state's request for production of other witness lists as 24 hours prior to the commencement of the defense's case. Mr. Koot affirmed that, providing, he said, the defense bar does not object to the other requests in the bill made by the state. Senator Adler asked Mr. Koot and Mr. Graham if they had copies of any other states' reciprocal discovery statutes. Mr. Koot stated he has Arizona's statute, which he said allows for nearly complete reciprocity. He cautioned the committee, however, that complete reciprocity does not work. Mr. Adler agreed. Mr. Koot added that if too much is required from the defense very little would be given. Also, he noted, the court has very little ability to enforce the statute. Senator Adler asked if there is any state that only requested percipient and expert witnesses. Mr. Koot replied, "I don't think any other state has been as weak as we have." Mr. Graham, in attempting to explain the process to Senator Adler, noted the bill drafters have not used too much from other states' statutes as the goal is a uniform policy of reciprocity across the entire state. David Sarnowski, Chief Criminal Deputy, Office of the Attorney General, next addressed the committee in favor of S.B. 166. Underlining the existence of various theories of discovery, Mr. Sarnowski, noted this bill would require compromise on the part of the defense bar. He noted the attorney general's office, the state-wide prosecutorial body, sought uniformity across the state, and he suggested that wording in the legislation be changed from district attorney to prosecuting attorney, in order to cover not only the district attorneys throughout the state, but also the attorney general and any special prosecutors who may be used from time to time. Continuing, Mr. Sarnowski told of his personal experience in attempting to cross- examine expert witnesses and the difficulty inherent therein, when the experts are instructed not to prepare reports. He asked the committee's leave to submit, at a later date, a copy of his cross-examination of an expert in a blood spatter issue of a capital murder case, wherein the expert admitted he had been instructed not to prepare a written report. Further, Mr. Sarnowski stated, even when reports are made available, the timing of their release to the prosecution makes it difficult to use the reports effectively. He emphasized the importance for deadlines to be established within the bill for the production of discovery items, including notice of their existence. He reminded the committee that the real purpose of a trial is to seek the truth and that the current one-way exchange of information from prosecution to defense does not further that search. Senator James asked Mr. Sarnowski when California Proposition 115 was enacted. The response was 1990. Senator James asked if there had been some event of trend that had stimulated this bill's proposal (e.g., gang members testifying as percipient witnesses). Mr. Sarnowski agreed the percipient witnesses might be a recent phenomenon. Senator Adler disagreed, stating he had experiences with gang members as witnesses 16 years previous. Mr. Sarnowski added he feels there is a need for an effective enforcement mechanism, such as a continuance of the trial, or some other appropriate method. He recalled for the committee the O.J. Simpson trial's defense team's last minute revelation of witnesses. In the case of Tanzy v. Eckert, the defense counsel failed to comply with the 10-day notice provision for alibi witnesses, Mr. Sarnowski pointed out, the judge "absolutely refused to allow the defendant to put that witness on." The judge's ruling withstood a constitutional challenge, as well as a challenge in the federal courts, he noted. At this juncture, the chairman called for testimony from the opposition to S.B. 166. Richard Wright, Defense Attorney, took the floor and offered some personal background. He spoke of the "uneven playing field" in criminal defense, pointing to the Bill of Rights and the Constitution as affording a criminally accused person certain rights. These rights are available, he explained, because the state has "such awesome power to bring to bear against a criminal defendant," including the issuance of search warrants; obtaining wire taps; the grand jury's ability to compel testimony; misrepresentation or lying to witnesses without fear of sanction; and, the ability to grant immunity to witnesses. A defense attorney, generally, investigates cases on his or her own, because most criminal defendants cannot afford to hire an attorney and an investigator, Mr. Wright insisted. Further, in criminal cases, even if the defendant is wrongly accused and found not guilty, there is no way for that defendant to recoup any of his costs, as he might in a civil matter, he added. Mr. Wright addressed specifically the request for percipient witnesses by referring once again to the Fifth Amendment of the Constitution. He read from the case of Williams v. Florida, with Justice Douglas saying: When we talk about a criminal trial being a poker game or sporting contest, really that's required by the Fifth Amendment. For the tactical advantage to the defendant is inherent in the type of trial that is required by the Bill of Rights. The framers were well aware of the awesome investigative and prosecutorial powers of government, and it was in order to limit those powers that they spelled out in detail, in the Constitution, the procedure to be followed in criminal trials. A defendant, they said, is entitled to notice of the charges against him, trial by jury, the right to counsel for his defense, the right to confront and cross-examine witnesses, the right to call witnesses in his own behalf, and the right not to be a witness against himself. All of these rights are designed to shield the defendant against the state's power. None are designed to make convictions easier, and taken together, they clearly indicate, that in our system, the entire burden of proving criminal activity rests on the state. The defendant, under our Constitution, need not do anything at all to defend himself, and certainly he cannot be required to help convict himself. Rather, he has an absolute, unqualified right to compel the state to investigate its own case, to find its own witnesses, to prove its own facts, and convince the jury, through its own resources. Throughout the process, the defendant has a fundamental right to remain silent. In effect, challenging the state at every point to `prove it.' Mr. Wright reiterated the point that the defense has no obligation to share knowledge of witnesses because provision of this information could prove self- incriminating. This bill, and its requirement to provide lists of percipient witnesses, violates this Fifth Amendment right, he stated. He also took exception to references to California as a model for this legislation, stating, "...I don't look to California as being a model of efficiency and how to run a state or how to run a criminal justice system." With expert witnesses, Mr. Wright noted, he did not feel there is the same constitutional conflict. He allowed there could be provision to treat expert witnesses like alibi witnesses, with a prior notification requirement, without violating constitutional rights. He noted this was supported by the U.S. Supreme Court in Williams v. Florida, because the defendant was not incriminating himself. Senator James took a moment to summarize his understanding of Mr. Wright's testimony, noting that alibi witnesses are allowed because it does nothing to further the prosecution's case; the same being true with mental health expert witnesses and their reports. Mr. Wright agreed, with the proviso that any statements made by the defendant would be excised out of the report. Senator James asked for further confirmation of his understanding in regard to required notice of experts in other areas. Mr. Wright replied that the new requirement would be for notification of witnesses the defense intends to use in their case, not necessarily witnesses he knows of, but does not intend to call. He added, fingerprint and ballistics experts would fall under the same category as alibi witnesses, in his opinion. Senator James examined the intent of the bill further and pondered a situation where the defense intended to call a mental health expert hoping to develop a mitigating condition as a defense. He asked if the name of the witness and any report would be submitted to the state at the "plea stage" or if the information would be held until it became apparent whether or not the state had made its case against the defendant. The senator asked whether offering this witness in advance would have with it the implication the defendant "did it, but." Mr. Wright confirmed the senator's conclusions. He stated, as a defense attorney, he feels he should not even have to give alibi notice ahead of time, but he is bound by the supreme court's rulings and the subsequent laws. Senator James asked if a mental health expert is "tantamount to an alibi-type of witness for pretrial disclosure purposes under Williams." Mr. Wright's response was affirmative. Quoting Justice White in Williams v. Florida, Mr. Wright said: Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all, nor should it be. But defense counsel has not comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be, and is, interested in preventing the conviction of the innocent. But we also insist that he defend his client, whether he is innocent or guilty. The state has the obligation to present evidence. Defense counsel need present nothing. Even if he knows what the truth is, he need not furnish any witnesses to the police or reveal any confidences of his client or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent, permits counsel to put the state to its proof; to put the state's case in the worse possible light, regardless of what he thinks or knows the truth to be. Undoubtedly, there are some limits which defense counsel must observe, but more often than not, defense counsel will cross-examine a prosecution witness and impeach him, if he can, even if he thinks the witness is telling the truth. Just as he will attempt to destroy a witness that he thinks is lying. In this respect, as part of our modified adversary system, and as part of the duty imposed on the most honorable defense counsel, we countenance a required conduct, which in many instances has little, if any relation to the search for truth. Mr. Wright agreed that the search for truth, as Mr. Sarnowski spoke of it, is inhibited by the Bill of Rights and the constitutional amendments. It would be easier to remove the 5th Amendment, and to allow interrogation of the defendant, he continued, but, that is not the system under which we are governed. He cautioned that a cry for reciprocal discovery heads us in that direction. Senator Adler asked Mr. Wright if there is currently a requirement for reciprocal discovery in mitigating or aggravating circumstance witnesses in a death penalty case. He was concerned with the logistics of such a requirement. Philip J. Kohn, Attorney, Clark County Public Defender, responded that such witnesses are not revealed. Mr. Kohn speculated there are witnesses, such as rebuttal or penalty phase witnesses, the state would not want to reveal. Mr. Koot responded the bill does not seek such discovery. Senator Adler questioned further the percipient witness requirement and Mr. Koot offered clarification that if the defense intended to call a percipient witness they must give his or her name, a current address or contact and the fact that they were "percipient." Wondering about the situation where the prosecution has the witness down as percipient, Senator Adler asked if the defense would then be required to list the same witness as percipient to his case. Mr. Koot, after some consideration, stated the state would allow an exception in such an instance. The chairman asked Mr. Graham and the representatives of the state whether there is room for compromise on the bill, allowing discovery of expert witnesses and reports, but leaving the other aspects as they currently exist. He pointed out the expert witness is in line with the Williams decision, but the request for percipient witnesses does seem like asking the defense to "provide evidence against themselves." Mr. Koot stated he does not see the difference between expert and percipient witnesses because the defense already planned to call the witness and waive any constitutional protections they might enjoy. Senator James said he feels the difference is well drawn in the case of a "self defense" witness that might be called if the state could prove their case. Mr. Koot suggested such a witness might be included in the witness list provided to the prosecution 24 hours prior to the commencement of the defense's case. He continued, he feels there is room for compromise in the timeline of discovery, but even if the only change made to the statute allows for discovery of the expert witnesses, he would be "a happy camper." Senator Adler stated he feels the timeline should be the same for discovery of expert and alibi witnesses. Mr. Koot explained the difference comes because there needs to be time allowed for further examination of the defendant by an equivalent expert for the state. He further noted, there had already been some discussion and compromise between the state and defense bar over the timeline. Mr. Kohn asked to add that he is concerned about admissions made to mental health experts that might be included in reports. He told the committee in previous discussion among the two groups he had suggested the report of the defense expert be provided either 48 hours before the psychiatrist testifies or after the defendant testifies. This, he noted, eliminates any problems of admissions that violate the Fifth Amendment. He added, he sees no problem with other types of expert reports being handed over 21 days prior to trial, but the mental health experts should be held as outlined above. Morgan Harris, Public Defender, spoke to the committee to emphasize the discovery would be made 21 days prior or when it's known. He mentioned a fiscal impact on the state because the public defenders rarely have such reports 21 days prior to trial, they simply do not have the time or staff. Mr. Koot felt this was an overstatement, noting that such experts are only called in capital cases or other life sentence possible cases, and these cases had to be prepared at least 21 days in advance of trial. Mr. Harris reiterated his belief that if the bill went through as it is presently written, it would have a 1.5 million dollar fiscal impact. Senator James noted the bill will be brought up for a work session after the language has been worked out. He closed the hearing at 1:25 p.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary February 13, 1995 Page