Assembly Bill No. 210-Assemblymen Anderson and Humke
February 27, 1997
____________
Referred to Committee on Judiciary
SUMMARY--Revises provisions governing discovery in criminal cases. (BDR 14-171)
FISCAL NOTE: Effect on Local Government: No.
Effect on the State or on Industrial Insurance: No.
EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.
AN ACT relating to criminal procedure; revising the provisions governing discovery in criminal cases; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1 Chapter 169 of NRS is hereby amended by adding thereto a new section to read as follows:
"Case in chief of the defendant" means the first opportunity of the defendant to present evidence after the close of the case in chief of the state.
Sec. 2 NRS 169.045 is hereby amended to read as follows:
169.045As used in this Title, unless the context otherwise requires, the words and terms defined in NRS 169.055 to 169.205, inclusive, and section 1 of this act have the meaning ascribed to them in those sections.
Sec. 3 Chapter 171 of NRS is hereby amended by adding thereto a new section to read as follows:
1. Not less than 2 judicial days before a preliminary examination, the prosecuting attorney shall permit the defendant to inspect and to copy or photograph any:
(a) Written or recorded statements or confessions made by the defendant, or any written or recorded statements made by a witness the prosecuting attorney intends to call at the preliminary examination, or copies thereof within the possession, custody or control of the prosecuting attorney;
(b) Results or reports of physical or mental examinations, scientific tests or scientific experiments made in connection with the particular case, or copies thereof, within the possession, custody or control of the prosecuting attorney; and
(c) Books, papers, documents, tangible objects, or copies thereof, that the prosecuting attorney intends to introduce in evidence at the preliminary examination, within the possession, custody or control of the prosecuting attorney.
2. The defendant is not entitled, pursuant to the provisions of this section, to the discovery or inspection of:
(a) An internal report, document or memorandum that is prepared by or on behalf of the prosecuting attorney in connection with the investigation or prosecution of the case.
(b) A statement, report, book, paper, document, tangible object or any other type of item or information that is privileged or protected from disclosure or inspection pursuant to the constitution or laws of this state or the Constitution of the United States.
3. The provisions of this section are not intended to affect any obligation placed upon the prosecuting attorney by the constitution of this state or the Constitution of the United States to disclose exculpatory evidence to the defendant.
4. The magistrate shall not postpone a preliminary examination at the request of a party based solely on the failure of the prosecuting attorney to permit the defendant to inspect, copy or photograph material as required in this section, unless the court finds that the defendant has been prejudiced by such failure.
Sec. 4 NRS 173.045 is hereby amended to read as follows:
173.045 1. All informations must be filed in the court having jurisdiction of the offenses specified therein, by the attorney general when acting pursuant to a specific statute or by the district attorney of the proper county as informant, and his name must be subscribed thereto by him or by his deputy.
2. The district attorney or the attorney general shall endorse thereon the names of such witnesses as are known to him at the time of filing the information . [, and shall also endorse upon the information the names of such other witnesses as may become known to him before the trial at such time as the court may, by rule or otherwise, prescribe; but this does not preclude the calling of witnesses whose names, or the materiality of whose testimony, are first learned by the district attorney or the attorney general upon the trial. He shall include with each name the address of the witness if known to him.] He shall not endorse the name of any witness whom he does not reasonably expect to call.
3. In all cases in which the defendant has not had or waived a preliminary examination there [shall] must be filed with the information the affidavit of some credible person verifying the information upon the personal knowledge of affiant that the offense was committed.
Sec. 5 NRS 174.087 is hereby amended to read as follows:
174.087 1. In addition to the written notice required by NRS 174.089, a defendant in a criminal case who intends to offer evidence of an alibi in his defense shall, not less than 10 days before trial or at such other time as the court may direct, file and serve upon the prosecuting attorney a written notice of his intention to claim the alibi. The notice must contain specific information as to the place at which the defendant claims to have been at the time of the alleged offense and, as particularly as are known to defendant or his attorney, the names and last known addresses of the witnesses by whom he proposes to establish the alibi.
2. Not less than 10 days after receipt of the defendant's list of witnesses, or at such other times as the court may direct, the prosecuting attorney shall file and serve upon the defendant the names and last known addresses, as particularly as are known to the prosecuting attorney, of the witnesses the state proposes to offer in rebuttal to discredit the defendant's alibi at the trial of the cause.
3. Both the defendant and the prosecuting attorney have a continuing duty to disclose promptly the names and last known addresses of additional witnesses which come to the attention of either party after filing their respective lists.
4. If a defendant fails to file and serve a copy of the notice required by this section, the court may exclude evidence offered by the defendant to prove an alibi, except the testimony of the defendant himself. If the notice is given by a defendant, the court may exclude the testimony of any witness offered by the defendant to prove an alibi if the name and last known address of the witness, as particularly as [is] are known to the defendant or his attorney, [is] are not stated in the notice.
5. If the prosecuting attorney fails to file and serve a copy on the defendant of a list of witnesses as required by this section, the court may exclude evidence offered by the state in rebuttal to the defendant's evidence of alibi. If the list is filed and served by the prosecuting attorney, the court may exclude the testimony of any witness offered by the prosecuting attorney for the purpose of rebutting the evidence of alibi if the name and last known address of the witness, as particularly as [is] are known to the prosecuting attorney, [is] are not stated in the notice. For good cause shown the court may waive the requirements of this section.
Sec. 6 NRS 174.089 is hereby amended to read as follows:
174.089 [A defendant shall:
1. Not later than the date on which both parties appear before the court and announce they are ready for trial or, if such an appearance is not required, not less than 5 judicial days before trial,]
1. Except as otherwise provided in this section, not less than 5 judicial days before trial or at such other time as the court may direct:
(a) The defendant shall file and serve upon the prosecuting attorney a written notice containing the names and last known addresses of all [known prospective witnesses; and
2. If any witness] witnesses the defendant intends to call during the case in chief of the defendant; and
(b) The prosecuting attorney shall file and serve upon the defendant a written notice containing the names and last known addresses of all witnesses the prosecuting attorney intends to call during the case in chief of the state.
2. If a witness that a party intends to call during the case in chief of the state or during the case in chief of the defendant is expected to offer testimony as an expert witness, the party who intends to call that witness shall file and serve upon the [prosecuting attorney] opposing party, not less than 21 days before trial or at such other time as the court may direct, a written notice containing:
(a) A brief statement regarding the subject matter on which the expert witness is expected to testify and the substance of his testimony; [and]
(b) A copy of the curriculum vitae of the expert witness [.
The defendant] ; and
(c) A copy of all reports made by or at the direction of the expert witness.
3. After complying with the provisions of subsections 1 and 2, each party has a continuing duty to [disclose promptly] file and serve upon the opposing party:
(a) Written notice of the names and last known addresses of any additional witnesses [which come to the attention of the defendant and to provide promptly any information required by subsection 2.] that the party intends to call during the case in chief of the state or during the case in chief of the defendant. A party shall file and serve written notice pursuant to this paragraph as soon as practicable after the party determines that he intends to call an additional witness during the case in chief of the state or during the case in chief of the defendant. The court shall prohibit an additional witness from testifying if the court determines that the party acted in bad faith by not including the witness on the written notice required pursuant to subsection 1.
(b) Any information relating to an expert witness that is required to be disclosed pursuant to subsection 2. A party shall provide information pursuant to this paragraph as soon as practicable after the party obtains that information. The court shall prohibit the party from introducing that information in evidence or shall prohibit the expert witness from testifying if the court determines that the party acted in bad faith by not timely disclosing that information pursuant to subsection 2.
4. Upon a motion by either party or the witness, the court shall prohibit disclosure to the other party of the address of the witness if the court determines that disclosure of the address would create a substantial threat to the witness of bodily harm, intimidation, coercion or harassment. If the court prohibits disclosure of an address pursuant to this subsection, the court shall, upon the request of a party, provide the party or his attorney or agent with an opportunity to interview the witness in an environment that provides for protection of the witness.
5. In addition to the sanctions and protective orders otherwise provided in subsections 3 and 4, the court may upon the request of a party:
(a) Order that disclosure pursuant to this section be denied, restricted or deferred pursuant to the provisions of NRS 174.275; or
(b) Impose sanctions pursuant to subsection 2 of NRS 174.295 for the failure to comply with the provisions of this section.
6. A party is not entitled, pursuant to the provisions of this section, to the disclosure of the name or address of a witness or any other type of item or information that is privileged or protected from disclosure or inspection pursuant to the constitution or laws of this state or the Constitution of the United States.
Sec. 7 NRS 174.235 is hereby amended to read as follows:
174.235 1. [At] Except as otherwise provided in NRS 174.087, 174.089 and 174.235 to 174.295, inclusive, at the request of a defendant, the prosecuting attorney shall permit the defendant to inspect and to copy or photograph any : [relevant:]
(a) Written or recorded statements or confessions made by the defendant, or any written or recorded statements made by [any witness,] a witness the prosecuting attorney intends to call during the case in chief of the state, or copies thereof, within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney; [and]
(b) Results or reports of physical or mental examinations, [and of] scientific tests or scientific experiments made in connection with the particular case, or copies thereof, within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney [.
2. At the request of the prosecuting attorney, the defendant shall permit the prosecuting attorney to inspect and copy or photograph any relevant:
(a) Written or recorded statements made by any witness, or copies thereof, within the possession, custody or control of the defendant, the existence of which is known, or by the exercise of due diligence may become known, to the defendant; and
(b) Results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession, custody or control of the defendant, the existence of which is known, or by the exercise of due diligence may become known, to the defendant.] ; and
(c) Books, papers, documents, tangible objects, or copies thereof, that the prosecuting attorney intends to introduce during the case in chief of the state and which are within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney.
2. The defendant is not entitled, pursuant to the provisions of this section, to the discovery or inspection of:
(a) An internal report, document or memorandum that is prepared by or on behalf of the prosecuting attorney in connection with the investigation or prosecution of the case.
(b) A statement, report, book, paper, document, tangible object or any other type of item or information that is privileged or protected from disclosure or inspection pursuant to the constitution or laws of this state or the Constitution of the United States.
3. The provisions of this section are not intended to affect any obligation placed upon the prosecuting attorney by the constitution of this state or the Constitution of the United States to disclose exculpatory evidence to the defendant.
Sec. 8 NRS 174.245 is hereby amended to read as follows:
174.245 1. [At the request of a defendant, the prosecuting attorney shall permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the state. Except as otherwise provided in NRS 174.087 and paragraph (b) of subsection 1 of NRS 174.235, this subsection does not authorize the discovery or inspection of reports, memoranda or other internal state documents made by state agents in connection with the investigation or prosecution of the case, or of statements made by state witnesses or prospective state witnesses, other than the defendant, to agents of the state.
2. At] Except as otherwise provided in NRS 174.087, 174.089 and 174.235 to 174.295, inclusive, at the request of the prosecuting attorney, the defendant shall permit the prosecuting attorney to inspect and to copy or photograph [books, papers, documents, tangible objects, buildings or places, or copies or portions thereof, which are within his possession, custody or control. This subsection does not authorize the discovery or inspection of reports, memoranda or other internal defense documents made by the defendant, or his attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by state or defense witnesses, or by prospective state or defense witnesses, to the defendant, his agents or attorneys.] any:
(a) Written or recorded statements made by a witness the defendant intends to call during the case in chief of the defendant, or copies thereof, within the possession, custody or control of the defendant, the existence of which is known, or by the exercise of due diligence may become known, to the defendant;
(b) Results or reports of physical or mental examinations, scientific tests or scientific experiments that the defendant intends to introduce in evidence during the case in chief of the defendant, or copies thereof, within the possession, custody or control of the defendant, the existence of which is known, or by the exercise of due diligence may become known, to the defendant; and
(c) Books, papers, documents or tangible objects that the defendant intends to introduce in evidence during the case in chief of the defendant, or copies thereof, within the possession, custody or control of the defendant, the existence of which is known, or by the exercise of due diligence may become known, to the defendant.
2. The prosecuting attorney is not entitled, pursuant to the provisions of this section, to the discovery or inspection of:
(a) An internal report, document or memorandum that is prepared by or on behalf of the defendant or his attorney in connection with the investigation or defense of the case.
(b) A statement, report, book, paper, document, tangible object or any other type of item or information that is privileged or protected from disclosure or inspection pursuant to the constitution or laws of this state or the Constitution of the United States.
Sec. 9 NRS 174.275 is hereby amended to read as follows:
174.275 Upon a sufficient showing , the court may at any time order that [the] discovery or inspection pursuant to NRS 174.089 or 174.235 to 174.295, inclusive, be denied, restricted or deferred, or make such other order as is appropriate. Upon motion by the defendant or prosecuting attorney, the court may permit the defendant or prosecuting attorney to make such showing, in whole or in part, in the form of a written statement to be inspected by the court in chambers. If the court enters an order granting relief following a showing in chambers, the entire text of the written statement must be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.
Sec. 10 NRS 174.285 is hereby amended to read as follows:
174.285 1. A request made pursuant to NRS 174.235 [to 174.295, inclusive,] or 174.245 may be made only within [10] 30 days after arraignment or at such reasonable later time as the court may permit. [A subsequent request may be made only upon a showing of cause why the request would be in the interest of justice.]
2. A party shall comply with a request made pursuant to NRS 174.235 or 174.245 not less than 30 days before trial or at such reasonable later time as the court may permit.
Sec. 11 NRS 174.295 is hereby amended to read as follows:
174.295 1. If, after complying with the provisions of NRS 174.235 to 174.295, inclusive, and before or during trial, a party discovers additional material previously requested which is subject to discovery or inspection under those sections, he shall promptly notify the other party or his attorney or the court of the existence of the additional material.
2. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with [those sections,] the provisions of NRS 174.089 or 174.235 to 174.295, inclusive, the court may order the party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.
Sec. 12 This act becomes effective upon passage and approval.