Senate Bill No. 6

Senate Bill No. 6-Committee on Judiciary

CHAPTER

654

AN ACT relating to criminal procedure; requiring the court to provide certain information to victims of and witnesses to sexual or violent offenses; requiring the prosecuting attorney to provide certain information to victims of sexual or violent offenses committed by juveniles; providing that certain information pertaining to notification of victim and witnesses is confidential; and providing other matters properly relating thereto.

[Approved July 17, 1997]

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

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Section 1. NRS 176.015 is hereby amended to read as follows:
176.015 1. Sentence must be imposed without unreasonable delay. Pending sentence the court may commit the defendant or continue or alter the bail.
2. Before imposing sentence the court shall:
(a) Afford counsel an opportunity to speak on behalf of the defendant; and
(b) Address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment.
3. Before imposing sentence the court shall afford the victim an opportunity to:
(a) Appear personally, by counsel or by personal representative; and
(b) Reasonably express any views concerning the crime, the person responsible, the impact of the crime on the victim and the need for restitution.
4. The prosecutor shall give reasonable notice of the hearing to impose sentence to:
(a) The person against whom the crime was committed;
(b) A person who was injured as a direct result of the commission of the crime;
(c) The surviving spouse, parents or children of a person who was killed as a direct result of the commission of the crime; and
(d) Any other relative or victim who requests in writing to be notified of the hearing.
Any defect in notice or failure of such persons to appear are not grounds for an appeal or the granting of a writ of habeas corpus. All personal information, including, but not limited to, a current or former address, which pertains to a victim or relative and which is received by the prosecutor pursuant to this subsection is confidential.
5. For the purposes of this section:
(a) "Relative" of a person includes:
(1) A spouse, parent, grandparent or stepparent;
(2) A natural born child, stepchild or adopted child;
(3) A grandchild, brother, sister, half brother or half sister; or
(4) A parent of a spouse.
(b) "Victim" includes:
(1) A person, including a governmental entity, against whom a crime has been committed;
(2) A person who has been injured or killed as a direct result of the commission of a crime; and
(3) A relative of a person described in subparagraph (1) or (2).
6. This section does not restrict the authority of the court to consider any reliable and relevant evidence at the time of sentencing.
Sec. 2. NRS 176.221 is hereby amended to read as follows:
176.221 If the probationer is arrested, by or without warrant, in another judicial district of this state, the court which granted the probation may assign the case to the district court of that district, with the consent of that court. The court retaining or thus acquiring jurisdiction shall cause the defendant to be brought before it, consider the standards adopted pursuant to NRS 213.10988 and the recommendation, if any, of the chief parole and probation officer. Upon determining that the probationer has violated a condition of his probation, the court shall, if practicable, order the probationer to make restitution for any necessary expenses incurred by a governmental entity in returning him to the court for violation of his probation. The court may:
1. Continue or revoke the probation or suspension of sentence;
2. Order the probationer to a term of residential confinement pursuant to NRS 176.2231;
3. Order the probationer to undergo a program of regimental discipline pursuant to NRS 176.2248;
4. Cause the sentence imposed to be executed; or
5. Modify the original sentence imposed by reducing the term of imprisonment and cause the modified sentence to be executed. The court shall not make the term of imprisonment less than the minimum term of imprisonment prescribed by the applicable penal statute. If the chief parole and probation officer recommends that the sentence of a probationer be modified and the modified sentence be executed, he shall provide notice of the recommendation to any victim of the crime for which the probationer was convicted who has requested in writing to be notified and who has provided his current address to the division. The notice must inform the victim that he has the right to submit documents to the court and to be present and heard at the hearing to determine whether the sentence of a probationer who has violated a condition of his probation should be modified. The court shall not modify the sentence of a probationer and cause the sentence to be executed until it has confirmed that the chief parole and probation officer has complied with the provisions of this subsection. The chief parole and probation officer must not be held responsible when such notification is not received by the victim if the victim has not provided a current address. All personal information, including, but not limited to, a current or former address, which pertains to a victim and which is received by the division pursuant to this subsection is confidential.
Sec. 3. Chapter 178 of NRS is hereby amended by adding thereto a new section to read as follows:
All personal information, including, but not limited to, a current or former address, which pertains to a victim, relative, witness or other person and which is received pursuant to the provisions of NRS 178.569 to 178.5698, inclusive, is confidential.
Sec. 4. NRS 178.569 is hereby amended to read as follows:
178.569 As used in NRS [178.5692] 178.569 to 178.5698, inclusive, ["victim of a crime" or "victim" includes a relative of any person:
1.] and section 3 of this act, unless the context otherwise requires:
1. "Relative" has the meaning ascribed to it in NRS 217.060.
2. "Victim of a crime" or "victim" includes a relative of a person:
(a) Against whom a crime has been committed; or
[2.] (b) Who has been injured or killed as a direct result of the commission of a crime.
[For the purpose of this section, "relative" has the meaning ascribed to it in NRS 217.060.]
Sec. 5. NRS 178.5698 is hereby amended to read as follows:
178.5698 1. The prosecuting attorney, sheriff or chief of police shall, upon the written request of a victim or witness, inform him:
(a) When the defendant is released from custody at any time before or during the trial;
(b) If the defendant is so released, the amount of bail required, if any; and
(c) Of the final disposition of the criminal case in which he was directly involved.
2. If an offender is convicted of a sexual offense or an offense involving the use or threatened use of force or violence against the victim, the court shall provide:
(a) To each witness, documentation that includes:
(1) A form advising the witness of the right to be notified pursuant to subsection 4;
(2) The form that the witness must use to request notification; and
(3) The form or procedure that the witness must use to provide a change of address after a request for notification has been submitted.
(b) To each person listed in subsection 3, documentation that includes:
(1) A form advising the person of the right to be notified pursuant to subsection 4 or 5, NRS 176.015, 176.221, 209.392, 209.521, 213.010, 213.040, 213.095 and 213.130;
(2) The forms that the person must use to request notification; and
(3) The forms or procedures that the person must use to provide a change of address after a request for notification has been submitted.
3. The following persons are entitled to receive documentation pursuant to paragraph (b) of subsection 2:
(a) A person against whom the offense is committed.
(b) A person who is injured as a direct result of the commission of the offense.
(c) If a person listed in paragraph (a) or (b) is under the age of 18 years, each parent or guardian who is not the offender.
(d) Each surviving spouse, parent and child of a person who is killed as a direct result of the commission of the offense.
(e) A relative of a person listed in paragraphs (a) to (d), inclusive, if the relative requests in writing to be provided with the documentation.
4. Except as otherwise provided in subsection [3,] 5, if the [crime] offense was a felony and the offender is imprisoned, the warden of the prison shall, if the victim or witness so requests in writing and provides his current address, notify him at that address when the offender is released from the prison.
[3.] 5. If the offender was convicted of a violation of [paragraph (c) of subsection 2] subsection 3 of NRS 200.366 or a violation of subsection 2 of NRS 200.508, the warden of the prison shall notify:
(a) The immediate family of the victim if the immediate family provides their current address;
(b) Any member of the victim's family related within the third degree of consanguinity, if the member of the victim's family so requests in writing and provides his current address; and
(c) The victim, if he will be 18 years of age or older at the time of the release and has provided his current address,
before the offender is released from prison.
[4.] 6. The warden must not be held responsible for any injury proximately caused by his failure to give any notice required pursuant to this section if no address was provided to him or if the address provided is inaccurate or not current.
[5.] 7. As used in this section [, "immediate] :
(a) "Immediate family" means any adult relative of the victim living in the victim's household.
(b) "Sexual offense" means:
(1) Sexual assault pursuant to NRS 200.366;
(2) Statutory sexual seduction pursuant to NRS 200.368;
(3) Battery with intent to commit sexual assault pursuant to NRS 200.400;
(4) An offense involving pornography and a minor pursuant to NRS 200.710 to 200.730, inclusive;
(5) Incest pursuant to NRS 201.180;
(6) Solicitation of a minor to engage in acts constituting the infamous crime against nature pursuant to NRS 201.195;
(7) Open or gross lewdness pursuant to NRS 201.210;
(8) Indecent or obscene exposure pursuant to NRS 201.220;
(9) Lewdness with a child pursuant to NRS 201.230;
(10) Sexual penetration of a dead human body pursuant to NRS 201.450;
(11) Annoyance or molestation of a minor pursuant to NRS 207.260;
(12) An offense that, pursuant to a specific statute, is determined to be sexually motivated; or
(13) An attempt to commit an offense listed in this paragraph.
Sec. 6. Chapter 62 of NRS is hereby amended by adding thereto a new section to read as follows:
1. If a petition filed pursuant to the provisions of this chapter contains allegations that a child committed an act which would be a sexual offense if committed by an adult or which involved the use or threatened use of force or violence against the victim, the prosecuting attorney shall provide to the victim and a parent or guardian of the victim, as soon as practicable after the petition is filed, documentation that includes:
(a) A form advising the victim and the parent or guardian of their rights pursuant to the provisions of this chapter; and
(b) The form or procedure that must be used to request disclosure pursuant to subsection 12 of NRS 62.193.
2. As used in this section, "sexual offense" means:
(a) Sexual assault pursuant to NRS 200.366;
(b) Battery with intent to commit sexual assault pursuant to NRS 200.400;
(c) An offense involving pornography and a minor pursuant to NRS 200.710 to 200.730, inclusive;
(d) Open or gross lewdness pursuant to NRS 201.210;
(e) Indecent or obscene exposure pursuant to NRS 201.220;
(f) Lewdness with a child pursuant to NRS 201.230;
(g) Sexual penetration of a dead human body pursuant to NRS 201.450;
(h) Annoyance or molestation of a minor pursuant to NRS 207.260; or
(i) An attempt to commit an offense listed in this subsection.
Sec. 7. NRS 62.193 is hereby amended to read as follows:
62.193 1. Proceedings concerning any child alleged to be delinquent, in need of supervision or in need of commitment to an institution for the mentally retarded are not criminal in nature and must be heard separately from the trial of cases against adults, and without a jury. The hearing may be conducted in an informal manner and may be held at a juvenile detention facility or elsewhere at the discretion of the judge. Stenographic notes or other transcript of the hearing are not required unless the court so orders. All proceedings pursuant to this chapter must be open to the general public unless the judge, or in case of a reference, the referee, upon his own motion or upon the motion of another person, determines that all or part of the proceedings must be closed to the general public because such closure is in the best interests of the child or the general public. If the judge or referee determines that all or part of the proceedings must be closed to the general public, the general public must be excluded and only those persons having a direct interest in the case may be admitted, as ordered by the judge or referee. The judge or referee in his sole discretion may determine that a victim or any member of a victim's family is a person having a direct interest in the case who may be admitted to the proceedings.
2. The court shall provide written notice of any hearing after the initial detention hearing to the parent, guardian or custodian of the child together with a copy of a notice which the parent, guardian or custodian may provide to his employer. The employer's copy of the notice must set forth the date and time of the hearing and the provisions of NRS 62.410. The employer's copy of the notice must not set forth the name of the child or the offense alleged.
3. The parties must be advised of their rights in their first appearance at intake and before the court. They must be informed of the specific allegations in the petition and given an opportunity to admit or deny those allegations.
4. If the allegations are denied, the court shall proceed to hear evidence on the petition. The court shall record its findings on whether the acts ascribed to the child in the petition were committed by him. If the court finds that the allegations in the petition have not been established, it shall dismiss
the petition and order the child discharged from any detention or temporary care previously ordered in the proceedings, unless otherwise ordered by the court.
5. If the court finds on the basis of an admission or a finding on proof beyond a reasonable doubt, based upon competent, material and relevant evidence, that a child committed the acts by reason of which he is alleged to be delinquent, it may, in the absence of objection and except as otherwise provided in NRS 62.214, proceed immediately to make a proper disposition of the case.
6. The court may, at the request of the district attorney, expedite the date for any adjudicatory hearing involving acts committed against a child less than 16 years of age or involving acts witnessed by a child less than 16 years of age. In making a ruling, the court may consider the effect a delay in the commencement of the hearing might have on the mental or emotional health or well-being of the child.
7. In adjudicatory hearings all competent, material and relevant evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value. The parties or their counsel must be afforded an opportunity to examine and controvert written reports so received and to cross-examine persons making reports when reasonably available.
8. On its motion or that of a party, the court may continue the hearings under this section for a reasonable period to receive reports and other evidence bearing on the disposition. If the hearing involves acts committed against a child less than 16 years of age or involving acts witnessed by a child less than 16 years of age, the court may consider any adverse effect a continuance or other postponement might have upon the mental or emotional health or well-being of the child. The court may deny a continuance or other postponement if the delay will adversely affect the mental or emotional health or well-being of the child. The court shall make an appropriate order for detention or temporary care of the child subject to supervision of the court during the period of any continuance.
9. If the court finds by preponderance of the evidence that the child is in need of supervision or is in need of commitment to an institution for the mentally retarded, the court may proceed immediately, or at a postponed hearing, to make proper disposition of the case.
10. Except as otherwise provided in subsection 11, the court shall make its final disposition of a case no later than 60 days after the petition was filed.
11. The court may extend the time for final disposition of a case by filing an order setting forth specific reasons for the extension:
(a) No later than 60 days after the petition was filed; or
(b) Later than 60 days after the petition was filed, if the court finds that the extension would serve the interests of justice. In deciding whether an extension would serve the interests of justice, the court shall consider:
(1) The gravity of the act alleged in the case;
(2) The reasons for any delay in the disposition of the case; and
(3) The potential consequences to the child, victim and public of not extending the time for final disposition of the case.
An extension of time for final disposition of a case granted pursuant to this subsection must not exceed 1 year from the date of filing the petition.
12. The prosecuting attorney shall disclose to the victim of an act committed by a child the disposition of the child's case regarding that act if the victim, or a parent or guardian of the victim, requests such a disclosure. All personal information, including, but not limited to, a current or former address, which pertains to a victim or a parent or guardian of a victim and which is received by the prosecuting attorney pursuant to this subsection is confidential.
Sec. 8. NRS 209.392 is hereby amended to read as follows:
209.392 1. Except as otherwise provided in NRS 209.429, the director may, at the request of an offender who is eligible for residential confinement pursuant to the standards adopted by the director pursuant to subsection 3 and who has:
(a) Established a position of employment in the community;
(b) Enrolled in a program for education or rehabilitation; or
(c) Demonstrated an ability to pay for all or part of the costs of his confinement and to meet any existing obligation for restitution to any victim of his crime,
assign the offender to the custody of the division of parole and probation of the department of motor vehicles and public safety to serve a term of residential confinement, pursuant to NRS 213.380, for not longer than the remainder of his sentence.
2. Upon receiving a request to serve a term of residential confinement from an eligible offender, the director shall notify the division of parole and probation. If any victim of a crime committed by the offender has, pursuant to subsection 3 of NRS 213.130, requested to be notified of an application for parole and provided a current address, the division of parole and probation shall notify the victim of the offender's request and advise the victim that he may submit documents regarding the request to the division of parole and probation. If a current address has not been provided as required by subsection 3 of NRS 213.130, the division of parole and probation must not be held responsible if such notification is not received by the victim. All personal information, including, but not limited to, a current or former address, which pertains to a victim and which is received by the division of parole and probation pursuant to this subsection is confidential.
3. The director, after consulting with the division of parole and probation, shall adopt, by regulation, standards providing which offenders are eligible for residential confinement. The standards adopted by the director must provide that an offender who:
(a) Is not eligible for parole or release from prison within a reasonable period;
(b) Has recently committed a serious infraction of the rules of an institution or facility of the department;
(c) Has not performed the duties assigned to him in a faithful and orderly manner;
(d) Has ever been convicted of:
(1) Any crime involving the use or threatened use of force or violence against the victim; or
(2) A sexual offense;
(e) Has more than one prior conviction for any felony in this state or any offense in another state that would be a felony if committed in this state, not including a violation of NRS 484.3792 or 484.3795;
(f) Has escaped or attempted to escape from any jail or correctional institution for adults; or
(g) Has not made an effort in good faith to participate in or to complete any educational or vocational program or any program of treatment, as ordered by the director,
is not eligible for assignment to the custody of the division of parole and probation of the department of motor vehicles and public safety to serve a term of residential confinement pursuant to this section.
4. If an offender assigned to the custody of the division of parole and probation pursuant to this section escapes or violates any of the terms or conditions of his residential confinement:
(a) The division of parole and probation may, pursuant to the procedure set forth in NRS 213.410, return the offender to the custody of the department of prisons.
(b) The offender forfeits all or part of the credits for good behavior earned by him before the escape or violation, as determined by the director. The director may provide for a forfeiture of credits pursuant to this paragraph only after proof of the offense and notice to the offender, and may restore credits forfeited for such reasons as he considers proper. The decision of the director regarding such a forfeiture is final.
5. The assignment of an offender to the custody of the division of parole and probation pursuant to this section shall be deemed:
(a) A continuation of his imprisonment and not a release on parole; and
(b) For the purposes of NRS 209.341, an assignment to a facility of the department of prisons,
except that the offender is not entitled to obtain any benefits or to participate in any programs provided to offenders in the custody of the department of prisons.
6. A person does not have a right to be assigned to the custody of the division of parole and probation pursuant to this section, or to remain in that custody after such an assignment, and it is not intended that the provisions of this section or of NRS 213.371 to 213.410, inclusive, create any right or interest in liberty or property or establish a basis for any cause of action against the state, its political subdivisions, agencies, boards, commissions, departments, officers or employees.
Sec. 9. NRS 209.521 is hereby amended to read as follows:
209.521 1. If a victim of an offender provides his current address to the director and makes a written request for notification of the offender's release or escape, the director shall notify the victim if the offender:
(a) Will be released into the community for the purpose of employment, training or education, or for any other purpose for which release is authorized; or
(b) Has escaped from the custody of the department of prisons.
2. An offender must not be temporarily released into the community for any purpose unless notification of the release has been given to every victim of the offender who has requested notification and has provided his current address.
3. The director may not be held responsible for any injury proximately caused by his failure to give any notice required pursuant to subsection 1 or 2 if no address was provided to the director or the address provided is inaccurate or not current.
4. All personal information, including, but not limited to, a current or former address, which pertains to a victim and which is received by the director pursuant to this section is confidential.
5. As used in this section, "victim" has the meaning ascribed to it in NRS 213.005.
Sec. 10. NRS 213.010 is hereby amended to read as follows:
213.010 1. The state board of pardons commissioners consists of the governor, the justices of the supreme court and the attorney general.
2. Meetings of the board for the purpose of considering applications for clemency may be held semiannually or oftener, on such dates as may be fixed by the board.
3. The board shall give written notice at least 15 days before a meeting to each victim of the crimes committed by each person whose application for clemency will be considered at the meeting, if the victim so requests in writing and provides his current address. If a current address is not provided, the board may not be held responsible if the notice is not received by the victim. The victim may submit a written response to the board at any time before the meeting. All personal information, including, but not limited to, a current or former address, which pertains to a victim and which is received by the board pursuant to this subsection is confidential.
Sec. 11. NRS 213.040 is hereby amended to read as follows:
213.040 All district attorneys receiving notice of an application for a pardon, or commutation of punishment, or remission of fine or forfeiture, shall transmit forthwith to:
1. The board a statement in writing of facts surrounding the commission of the offense for which the applicant is incarcerated or subject to penalty and any information affecting the merits of the application.
2. Each victim of the person applying for clemency a copy of the notice of the application, if the victim so requests in writing and provides his current address. If a current address is not provided, the district attorney may not be held responsible if a copy of the notice is not received by the victim. All personal information, including, but not limited to, a current or former address, which pertains to a victim and which is received by the district attorney pursuant to this subsection is confidential.
Sec. 12. NRS 213.095 is hereby amended to read as follows:
213.095 If the board remits a fine or forfeiture, commutes a sentence or grants a pardon, it shall give written notice of its action to the victim of the person granted clemency, if the victim so requests in writing and provides his current address. If a current address is not provided, the board may not be held responsible if the notice is not received by the victim. All personal information, including, but not limited to, a current or former address, which pertains to a victim and which is received by the board pursuant to this section is confidential.
Sec. 13. NRS 213.130 is hereby amended to read as follows:
213.130 1. A prisoner sentenced to imprisonment in the state prison may apply to the board for parole. The application must be made on a form prescribed by the board and must contain:
(a) The county in which the prisoner will reside, if the prisoner will be paroled in Nevada; and
(b) Other data that will assist the board in determining whether parole should be granted.
The secretary of the board shall furnish any prisoner an application form upon request.
2. Meetings for the purpose of considering applications for parole may be held semiannually or more often, on such dates as may be fixed by the board. All meetings must be open to the public.
3. Not later than 5 days after the date on which the board fixes the date of the meeting to consider the application of a prisoner for parole, the board shall notify the victim of the prisoner whose application is being considered of the date of the meeting and of his rights pursuant to this subsection, if the victim has requested notification in writing and has provided his current address or if the victim's current address is otherwise known by the board. The victim of any person applying for parole may submit documents to the board and may testify at the meeting held to consider the application. An application for parole must not be considered until the board has notified any victim of his rights pursuant to this subsection and he is given the opportunity to exercise those rights. If a current address is not provided to or otherwise known by the board, the board must not be held responsible if such notification is not received by the victim.
4. The board may deliberate in private after a public meeting held to consider an application for parole.
5. The board of state prison commissioners shall provide suitable and convenient rooms or space for use of the board.
6. If a victim is notified of a meeting to consider an application for parole pursuant to subsection 3, the board shall, upon making a final decision concerning the application, notify the victim of its final decision.
7. All personal information, including, but not limited to, a current or former address, which pertains to a victim and which is received by the board pursuant to this section is confidential.
8. For the purposes of this section, "victim" has the meaning ascribed to it in NRS 213.005.
Sec. 14. The provisions of subsection 1 of NRS 354.599 do not apply to any additional expenses of a local government that are related to the provisions of this act.
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