(On Behalf of the District Attorneys' Association)
March 26, 1997
____________
Referred to Committee on Judiciary
SUMMARY--Makes various changes to evidence receivable in preliminary examination and grand jury proceeding. (BDR 14-663)
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 proceedings; making various rules of evidence inapplicable to a preliminary examination and to a grand jury proceeding; allowing hearsay evidence in a preliminary examination and in a grand jury proceeding; 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 NRS 171.196 is hereby amended to read as follows:
171.1961. [Where the] If the offense is not triable in the justice's court, the defendant [shall] must not be called upon to plead. If the defendant waives preliminary examination, the magistrate shall [forthwith] immediately hold him to answer in the district court.
2. If the defendant does not waive examination, the magistrate shall hear the evidence within 15 days, unless for good cause shown he extends such time. Unless the defendant waives counsel, reasonable time [shall] must be allowed for counsel to appear.
3. [Where] If application is made for the appointment of counsel for an indigent defendant, the magistrate shall postpone the examination until:
(a) The application has been granted or denied; and
(b) If the application is granted, the attorney appointed or the public defender has had reasonable time to appear.
4. The defendant may cross-examine witnesses who appear in person at the examination and testify against him and may introduce evidence in his own behalf.
5. The finding of probable cause may be based upon hearsay evidence in whole or in part.
Sec. 2. Chapter 172 of NRS is hereby amended by adding thereto a new section to read as follows:
A person who is sworn as a witness before a grand jury is entitled to be paid the fees, expenses and allowances provided in NRS 50.225.
Sec. 3. NRS 172.135 is hereby amended to read as follows:
172.135[1.] In the investigation of a charge [,] for the purpose of either presentment or indictment, the grand jury [can receive no other evidence than such as is given by witnesses] may base a presentment or an indictment in whole or in part on the following types of evidence:
1. Testimony from witnesses produced and sworn before them [or furnished by legal] ;
2. Legal documentary evidence [or by the] ;
3. The deposition of witnesses taken as provided in this Title [, except that the grand jury may receive an affidavit or declaration from an expert witness or other person described in NRS 50.315 in lieu of his personal testimony or deposition and may receive an affidavit of an owner, possessor or occupant of real or personal property pursuant to NRS 172.137 in lieu of his personal testimony or deposition.
2. The grand jury can receive none but legal evidence, and the best evidence in degree, to the exclusion of hearsay or secondary evidence.] ; or
4. Hearsay evidence.
Sec. 4. NRS 47.020 is hereby amended to read as follows:
47.0201. This Title governs proceedings in the courts of the State of Nevada and before magistrates, except:
(a) To the extent to which its provisions are relaxed by a statute or procedural rule applicable to the specific situation; and
(b) As otherwise provided in subsection 3.
2. The provisions of chapter 49 of NRS with respect to privileges apply at all stages of all proceedings.
3. The other provisions of this Title do not apply to:
(a) Issuance of warrants for arrest, criminal summonses and search warrants.
(b) Proceedings with respect to release on bail.
(c) Sentencing, granting or revoking probation.
(d) Proceedings for extradition.
(e) Proceedings before a grand jury.
(f) Preliminary examinations in criminal cases.
Sec. 5. NRS 50.225 is hereby amended to read as follows:
50.2251. For attending the courts of this state in any criminal case, or civil suit or proceeding before a court of record, master, commissioner [,] or justice of the peace, [or before the grand jury,] in obedience to a subpoena, each witness is entitled:
(a) To be paid a fee of $25 for each day's attendance, including Sundays and holidays.
(b) Except as otherwise provided in this paragraph, to be paid for attending a court of the county in which he resides at the rate of 19 cents a mile for each mile necessarily and actually traveled from and returning to the place of residence by the shortest and most practical route. A board of county commissioners may provide that, for each mile so traveled to attend a court of the county in which he resides, each witness is entitled to be paid an amount equal to the allowance for travel by private conveyance provided for state officers and employees generally pursuant to subsection 3 of NRS 281.160. If the board so provides, each witness at any other hearing or proceeding held in that county who is entitled to receive the payment for mileage specified in this paragraph must be paid mileage in an amount equal to the allowance for travel by private conveyance provided for state officers and employees generally pursuant to subsection 3 of NRS 281.160.
2. In addition to the fee and payment for mileage specified in subsection 1, a board of county commissioners may provide that, for each day of attendance in a court of the county in which he resides, each witness is entitled to be paid a per diem allowance in an amount equal to the per diem allowance provided for state officers and employees generally while away from the office and within this state pursuant to subsection 1 of NRS 281.160. If the board so provides, each witness at any other hearing or proceeding held in that county who is a resident of that county and who is entitled to receive the fee specified in paragraph (a) of subsection 1, must be paid, in addition to that fee, a per diem allowance in an amount equal to the per diem allowance provided in this subsection.
3. If a witness is from without the county, or, being a resident of another state, voluntarily appears as a witness at the request of the attorney general or the district attorney and the board of county commissioners of the county in which the court is held, he is entitled to reimbursement for the actual and necessary expenses for going to and returning from the place where the court is held. He is also entitled to receive the same allowances for subsistence and lodging as are provided for state officers and employees generally.
4. Any person in attendance at a trial who is sworn as a witness is entitled to the fees, the per diem allowance, if any, travel expenses and any other reimbursement set forth in this section, irrespective of the service of a subpoena.
5. Witness fees, per diem allowances, travel expenses and other reimbursement in civil cases must be taxed as disbursement costs against the defeated party upon proof by affidavit that they have been actually incurred. Costs must not be allowed for more than two witnesses to the same fact or series of facts, and a party plaintiff or defendant must not be allowed any fees, per diem allowance, travel expenses or other reimbursement for attendance as a witness in his own behalf.
6. A person is not obligated to appear in a civil action or proceeding unless he has been paid an amount equal to 1 day's fees, the per diem allowance provided by the board pursuant to subsection 2, if any, and the travel expenses reimbursable pursuant to this section.
Sec. 6. NRS 50.320 is hereby amended to read as follows:
50.3201. The affidavit of a chemist and any other person who has qualified in the district court of any county to testify as an expert witness regarding the presence in the breath, blood or urine of a person of alcohol, a controlled substance, or a chemical, poison or organic solvent, or the identity or quantity of a controlled substance alleged to have been in the possession of a person, which is submitted to prove:
(a) The quantity of the purported controlled substance; or
(b) The amount of alcohol or the presence or absence of a controlled substance, chemical, poison or organic solvent, as the case may be,
is admissible in the manner provided in this section.
2. An affidavit which is submitted to prove any fact set forth in subsection 1 must be admitted into evidence when submitted during any administrative proceeding . [, preliminary hearing or hearing before a grand jury.] The court shall not sustain any objection to the admission of such an affidavit.
3. The defendant may object in writing to admitting into evidence an affidavit submitted to prove any fact set forth in subsection 1 during his trial. If the defendant makes such an objection, the court shall not admit the affidavit into evidence and the prosecution may cause the person to testify in court to any information contained in the affidavit.
Sec. 7. NRS 50.325 is hereby amended to read as follows:
50.3251. If a person is charged with an offense punishable pursuant to chapter 453 or 484 of NRS or homicide resulting from driving a vehicle while under the influence of intoxicating liquor, a controlled substance or a chemical, poison or organic solvent, and it is necessary to prove:
(a) The existence of any alcohol;
(b) The quantity of a controlled substance; or
(c) The existence or identity of a controlled substance, chemical, poison or organic solvent,
the prosecuting attorney may request that the affidavit or declaration of an expert or other person described in NRS 50.315 and 50.320 be admitted into evidence at the trial [or preliminary hearing] concerning the offense. Except as otherwise provided in NRS 50.315 and 50.320, the affidavit or declaration must be admitted into evidence.
2. [If the request is to have the affidavit or declaration admitted into evidence at a preliminary hearing or hearing before a grand jury, the affidavit or declaration must be admitted into evidence upon submission. If the request is] The request to have the affidavit or declaration admitted into evidence [at trial, the request] must be:
(a) Made at least 10 days before the date set for the trial;
(b) Sent to the defendant's counsel and to the defendant, by registered or certified mail by the prosecuting attorney; and
(c) Accompanied by a copy of the affidavit or declaration and the name, address and telephone number of the affiant or declarant.
3. The provisions of this section do not prohibit either party from producing any witness to offer testimony at trial.