MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
February 19, 2003
The Committee on Judiciarywas called to order at 8:00 a.m., on Wednesday, February 19, 2003. Vice Chairman John Oceguera presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mr. John Oceguera, Vice Chairman
Mrs. Sharron Angle
Mr. David Brown
Ms. Barbara Buckley
Mr. John C. Carpenter
Mr. Jerry D. Claborn
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Don Gustavson
Mr. William Horne
Mr. Garn Mabey
Mr. Harry Mortenson
Ms. Genie Ohrenschall
Mr. Rod Sherer
COMMITTEE MEMBERS ABSENT:
Mr. Bernie Anderson, Chairman (excused)
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Nancy Elder, Committee Secretary
OTHERS PRESENT:
Robert W. Teuton, Chief Deputy Attorney, Juvenile Division, Clark County, Nevada
Ben Graham, Chief Deputy District Attorney, Clark County District Attorney’s Office, and the Nevada District Attorney’s Association, Las Vegas, Nevada
Daniel Greco, Chief Deputy District Attorney, Washoe County District Attorney’s Office; and the Nevada District Attorney’s Association, Reno, Nevada
Richard Wright, Criminal Defense Attorney, Las Vegas, Nevada
Kristin Erickson, Deputy, Washoe County District Attorney’s Office, and Nevada District Attorney’s Association, Reno, Nevada
Darleen Skustad, Supervisor, Victim Witness Assistance Center, Washoe County District Attorney’s Office, Reno, Nevada
Jim Nadeau, JNadeau Associates, representing Washoe County Sheriff’s Office, Reno, Nevada
Scott Coffee, Clark County Public Defender’s Office, Las Vegas, Nevada
Assembly Bill 60: Provides that decision of juvenile court to deny certification of child for criminal proceedings as adult may be appealed. (BDR 5-280)
Vice Chairman Oceguera called the meeting to order and said they would start by going to Las Vegas to hear from Bob Teuton on A.B. 60.
Mr. Teuton said he was a Chief Deputy Attorney, Juvenile Division in Clark County, Nevada. He said he had provided information relevant to his testimony to the Committee (Exhibit C) on A.B. 60. He said the issue was first and foremost one of fairness. He said juvenile court was treated as a civil court, and the decision to certify a minor was a final decision under rules of civil procedure. He explained that if a child had been certified to stand trial as an adult, that decision could be immediately appealed to the Nevada Supreme Court. He continued to say that the decision not to certify was an interim order and was not able to be appealed to the Supreme Court. He reminded the Committee that research from federal courts and state courts had looked at the same issue, and they said that there needed to be an exception for certification decisions. He indicated that interim orders ended up being final orders, because if a juvenile court would maintain jurisdiction, it must proceed to take evidence. He pointed out that under the U.S. Constitution and a Nevada statute as well, once evidence had been taken, jeopardy must be attached, and it could not be undone at a later time. He said that the decision not to certify should be construed as a final order, and they should have the right to appeal that to the Supreme Court. He volunteered to answer any questions the Committee members had.
Assemblyman Carpenter asked what the time frame for appeals might be.
Mr. Teuton said the time frame would be up to the Supreme Court. He added that there were Supreme Court rules that would allow for “expedited appeals,” which would permit the courts to proceed and to order an expedited transcript. He said he wished he could say it would be done within 30, 60, or 90 days, because that was a significant amount of time in the life of a juvenile. He would not have anticipated that the Supreme Court would not treat this issue in a timely manner.
Assemblyman Horne mentioned the matter of fairness Mr. Teuton had referred to. He said that juveniles were treated differently and had even been given different names in courtrooms to protect their identities. He said that what Mr. Teuton had suggested sounded to him like minors would be treated more like adults. He opined that the reason courts had been treating minors differently was because they were not adults. He said he did not understand the need to go any further, when the juvenile courts were serving their purpose.
Mr. Teuton replied that he had been involved in juvenile courts for about 20 years. He said there had been increasing tension about the historical concept of a juvenile court being treated as a civil court, which was there to help juveniles. He said that juveniles had no constitutionally protected rights. He said that since the 1960s, the juvenile courts had applied criminal constitutional standards to juvenile court processes. He accused that development of creating a problem. He explained it had gotten in the way of the ability to rehabilitate the juvenile. He added that the decision not to certify a juvenile needed to be made prior to allowing the court to proceed with any rehabilitative efforts. He explained that when the courts had gotten to that stage, the juveniles’ constitutional right that would protect them against double jeopardy, would be attached. If a juvenile trial court had ruled in a way that the defenders of the juvenile had disagreed with, there would have been no law that could have authorized the ability to have sought a Supreme Court review of that juvenile court’s decision. He said Clark County would like to have the threshold ability to file an appeal and to seek appellate review.
Assemblyman Horne told Mr. Teuton that he had still said the same thing. He asked Mr. Teuton if he had said the rights of the juveniles would not be protected if the process had been stopped at the juvenile court level.
Mr. Teuton replied negatively. He said Clark County filed about 7,000 petitions that alleged juveniles had committed delinquent acts. For those 7,000 petitions, they had filed a second petition that asked the juvenile court to certify. In about 100 cases it was to ask the court to treat the juvenile as an adult. In those 100 cases they ended up conducting full investigations and withdrawing those motions. They had allowed the juvenile court to maintain jurisdiction in about 30 percent of the cases. He said that it had been the 70 to 80 percent of the cases that remained that had been litigated between the defense and the state, to determine whether those children should have been treated as juveniles or adults. He explained that the judge had the final say, and there was no recourse that would allow them to go to the Supreme Court and say the judge had abused his discretion, misinterpreted the law, and did not apply legislative intent to reach his findings. A.B. 60 was designed to give the District Attorney the ability to challenge the judge’s ruling.
Ben Graham, Chief Deputy District Attorney, Clark County District Attorney’s Office, and the Nevada District Attorney’s Association, Las Vegas, Nevada, said that one of the benefits of growing old was the wisdom attained from having been around for a while. He said he had either a life experience or a county western song to explain just about everything. He said it was his live experience regarding this matter that had allowed him to see 10 to 14 years ago that kids were starting not to be kids as people had remembered them. He said a there had been a bill drafted in the early 1990s that had authorized the courts to take fingerprints and mug shots of juveniles, because of all the burglaries had been involving kids. He claimed that young people had become involved in more serious crimes over the years.
Mr. Graham said that about 7 percent of the juveniles involved in crimes were repeat offenders. These were the juveniles who had been before the court 10 to 15 times, and there had been no recourse in the juvenile system to help them. He said the District Attorneys were asking for the ability to certify them as adults, so the rights of the public would be protected.
Vice Chairman Oceguera thanked Mr. Graham for the clarification and asked if there were any witnesses who wanted to speak against A.B. 60. There were no other witnesses or questions, so the hearing on A.B. 60 was closed, and the hearing on A.B. 61 was opened. Vice Chairman Oceguera recalled Ben Graham to the witness table.
Assembly Bill 61: Makes various changes to provisions governing testimony and evidence of witness who is granted immunity in criminal proceeding. (BDR 14-281)
Mr. Graham reminded the Committee that he represented Nevada District Attorneys Association, and worked in Clark County as a Deputy District Attorney. He said that in the study of criminal law, there were situations where one person had been given immunity to testify against another person who had been a serious violator, or who had injured or possibly killed a child in many instances. He explained that statutorily, the Legislature had determined there were times immunity had needed to be given to people so they would not be prosecuted in exchange for their testimony. He said it was done in order to prosecute the more serious offender. He reminded the Committee that United States residents had the right to remain silent. He said it was sometimes necessary to grant people immunity or they would not testify.
Mr. Graham disclosed that his many children were near and dear to him and he was completely unsympathetic to child abusers. He told a story about a culprit who had ended up killing a young Hispanic girl. He had hung her by her hair on a hook in the closet. People questioned how the mother had let this go on. The mother had not been considered to be an active participant. She had been abused and beaten down herself. The Clark County District Attorney gave the mother immunity in exchange for her testimony so they could get the worst culprit. He said the immunity statute allowed the prosecution to grant immunity to a limited degree. It allowed people to testify without giving a blanket type of immunity. He said that was the concept about the immunity statute, and he thanked the Committee for their attention.
Daniel Greco, Chief Deputy District Attorney, Washoe County District Attorney’s Office, and the Nevada District Attorneys Association, said that Nevada’s current immunity statute provided transactional immunity, which meant Nevada’s current statute, NRS 178.572, afforded the witness total, complete, and absolute immunity for any crime that had been mentioned during the witness’s testimony. The witness would have immunity even when evidence of the crime could have been easily gathered from other sources. He said that by contrast, the immunity offered by the federal immunity statute, enacted by Congress, as well as the immunity statutes enacted by the legislatures of many other states, provided the witness with “use” and “derivative use” immunity only. The United States Supreme Court, in an opinion called Kastigar v. United States, had clearly and unequivocally held that use and derivative use immunity was all that was required under the Fifth Amendment of the United States Constitution and other provisions of the law. He said Nevada’s current statute went beyond what the Constitution required, according to the United States Supreme Court. He clarified that would mean under the current statute in Nevada, in most situations where the witness who testified was a friend or relative of the defendant, the prosecutor could not grant the witness immunity, so the jury would not get to hear the complete story of the crime. He gave an example of how it would play out in court. He illustrated a murder case where there were three people in a room: the defendant, a witness who happened to be the defendant’s best friend, and then the murder victim. The defendant shot the victim in the head, which killed him. The defendant then handed the gun to his best friend, which caused DNA and fingerprints of both people to have been deposited on the gun. A subsequent police investigation came to the correct conclusion that the defendant had in fact been the actual shooter. Sometime after the defendant had been charged with the crime, he and the friend got together in complete privacy and they discussed how they would beat the charges. The defendant gave the friend a large amount of money and told the friend, who was also the witness; to claim transactional immunity and say that he, the friend, had shot the victim, and then neither person would be convicted of the murder. Mr. Grecopointed out that would not work in most other states or in the federal system, but there was a good chance it would work in Nevada. He reiterated that such a situation was unique to the type of transactional immunity that Nevada has had. Mr. Greco said:
The proposed amendments to A.B. 61 would go a long way toward eliminating this problem, because with use and derivative use immunity, the witness cannot just carte blanche lie to protect his best friend without exposing himself to the possible danger of murder, if at some future the government is able to gather evidence independent of what was gained from his testimony. In other words, under the proposed amendment he would not have complete or transactional immunity.
He added that was a simplified portrayal of what could happen, and that he had dozens of real-life examples of how transactional immunity had been abused in that way. He said he would have welcomed any questions from the Committee.
Vice Chairman Oceguera thanked Mr. Teuton and gave the floor to Mr. Horne.
Assemblyman Horne asked if this bill would not discourage legitimate witnesses who would have been able to use immunity to bear witness, but since they could be prosecuted for something they might have to disclose, they would not be witnesses.
Mr. Teuton responded that under the use and derivative use statute, that problem would be handled. He said it would guarantee that what the witness said in court, and any information derived from what he said in court, could not be used against him. He explained that if a witness had said facts A, B, and C, and mentioned another person who the police could go to, and they learned fact D, E, and F from what that other witness said in court, then none of that information could be used against him; however, if the police, through subsequent work developed totally unrelated witnesses or totally unrelated physical evidence, such as other DNA or fingerprint evidence, then they could still initiate a prosecution. He said that it would eliminate the likelihood that a friend or relative would lie when he or she knew there could be some danger. He added that the United States Supreme Court has said that a person would not have a right not to testify if he or she had been granted immunity. The United States Supreme Court had also said in Kastigar v. United States that it was only required by the Constitution to give a witness use and derivative use, and that transactional immunity was not required.
Assemblyman Brown asked if legal counsel had not represented most witnesses.
Mr. Teuton responded, “Absolutely not.” He said that in most cases he had been involved with, a witness had either come to court with a lawyer, or if the witness did not have a lawyer, the court had appointed one. He said there was one case where an unrepresented person had come in, and the public defenders advised him to ask for a lawyer. Since the public defender represented the main witness in this case, the court took a break and appointed a conflict lawyer to represent that person. He concluded that there would always be legal advice available.
Mr. Brown referred to Section 3 where it discussed penalties and forfeitures on incriminating evidence, and said he wondered what that would contemplate.
Mr. Teuton said he believed that section to mean that a witness would have to testify whether or not there was a 100 percent certainty that there was an applicable criminal statute and an applicable criminal penalty or forfeiture that might apply. He said the witness would be required to testify even if circumstances of the penalties or forfeitures were not crystal clear.
Mr. Brown asked what a forfeiture might be.
Mr. Teuton replied that in a felony case in Nevada, if the crime had been committed in a home or in a vehicle, it was possible for the state or one of the counties to file a forfeiture complaint against a person. That would allow the state to take custody of the car or home from the perpetrator of the crime, since it had been used in a felony. He said this measure had rarely been used in Washoe County.
Mr. Mortenson remarked that some of the testimonies given seemed to be in conflict, and he asked for clarification of whether a person could have transactional immunity under the federal law.
Mr. Teuton explained that federal law had “use” and “derivative use” immunity. He reiterated that Nevada currently had “transactional” or “total” immunity. He said that this amendment would attempt to change Nevada’s statute to “use” and “derivative use” immunity.
Mr. Mortenson asked, “So transactional immunity would mean that even if an investigator had found outside evidence to show that the guy was guilty, he would still be immune. Is that right?” Mr. Teuton replied that was correct. He gave another example about what could happen:
Let’s say there was a witness who saw everything from a distant hotel or an apartment across the street. They were afraid and they didn’t come forward. So let’s say that the police charged the right person, and he has a friend there and the friend tries to cover for him, using the scenario I described before. The witness across the street, because they’re afraid, does not come forward for two years. In the meantime, they go to trial, and the friend testifies in the way I mentioned to help acquit his buddy to get him off the charges. Under Nevada’s current statute, because he mentioned the murder and what happened, that is it; transactionally you are complete, forever, totally barred. So when that witness finally comes forward two years later, you’re out of luck and the guilty man walks free.
Mr. Mortenson asked what the difference was between immunity and derivative immunity.
Mr. Teuton said he thought Mr. Mortenson actually wanted the definitions for “use immunity” and “derivative use immunity.” He said, “use immunity,” meant information derived directly from what the witness had said. “Derivative use immunity” meant information derived through a third-party witness who nobody had previously heard about. The third-party information had been brought in through the witness who had already been given immunity.
Mr. Graham was granted permission by Vice Chairman Oceguera to simplify the terms of A.B. 61. He said that no citizen of Nevada would ever be prejudiced by what came out of his own mouth.
Mr. Brown said that it seemed that “use” and “derivative use” immunity was fairly broad immunity, but he still wondered about how often rare situations would come up where it would be difficult to find the evidence from independent sources, or prove that the lead to that evidences derived from an independent source.
Mr. Greco asked the Vice Chair for permission to respond to Mr. Brown’s question, and permission was granted. He pointed out that there would be two ways to get around that:
Vice Chairman Oceguera asked Mr. Greco to describe to the Committee what “burdens of proof” were.
Mr. Greco said that “clear and convincing evidence” was the same standard that was used in the same situation where there would be an attempt to introduce a prior bad act. He said there was no percentage that could be used to define it, but it was a lot less than “proof beyond a reasonable doubt.”
Mr. Graham interjected that the highest standard was “beyond a reasonable doubt,” and that was not beyond all doubt, but beyond reasonable doubt. Preponderance of the evidence was in a civil proceeding, and it was known to have “tipped the scale.”
Vice Chairman Oceguera noted no one else had signed up to speak in favor of A.B. 61, and he said it was time to hear from those against A.B. 61. He called on Richard Wright, who testified from the Las Vegas site.
Richard Wright, Criminal Defense Attorney in Las Vegas, said the effort to change “transactional” immunity to “use” immunity was an effort to strip away the Fifth Amendment of the United States Constitution privilege and was counter to individual liberty. He made a reference to the Kastigar opinion, and informed the Committee that Kastigar had been decided in 1972 by the Supreme Court. He said it had allowed “use” and “derivative use” immunity to replace a citizen’s Fifth Amendment right in the federal system. He added that it had been a very contentious decision and had not been a unanimous vote, but rather a split court. He opined that the dissenting opinions in the court had somewhat mirrored the comments made by Assemblyman Brown, “How can you ever really know that evidence was acquired independently, once the cat is out of the bag and law enforcement has the evidence?” He indicated that the constitutional protections and safeguards in the Bill of Rights, especially in the Fifth Amendment, had been designed so that people would not have to “trust” the prosecutor or the police. He said the reason the United States had a Bill of Rights was so that people did not have to simply trust a prosecutor. He asked the Committee if they could imagine a judge, who had been popularly elected, who didn’t want to admit when he had not trusted the prosecutors, so he had let culprits go free.
Mr. Wright said a United States citizen had the right to say nothing. That right was protected by the Fifth Amendment. The Supreme Court had said the Fifth Amendment right could be replaced with a right that was as broad as the right itself. He said, “That means no use whatsoever could be used of testimony. This is the basis of a lot of litigation in the federal system on ‘use’ and ‘derivative use’ immunity.” He added that if a person had been immunized, he or she was supposed to have been left in the same position he or she would have been in had he or she never spoken whatsoever. He explained that once a witness had told something, it could not be taken back. He portrayed a scenario of how, once law enforcement had learned about some evidence, they would be able to find more leads. He said that trials were televised, so people who had watched them might have heard something the immunized witness had disclosed, and they would tell another neighbor, and then the other neighbor might realize he knew something, so he might have come forward with what he knew. Mr. Wright asked if that was independently derived evidence, or if it was the result of the immunized testimony. He pointed out that under “derivative use” immunity, people would have to trust the prosecutor or the police to make that judgment.
Vice Chairman Oceguera thanked Mr. Wright and called on Assemblyman Brown.
Assemblyman Brown asked if the Kastigar opinion had any progeny, and exactly what the split in the Supreme Court ruling had been. He also wanted to know how many other states had gone to “use” and “derivative use” immunity.
Mr. Wright replied that he thought it was a 5—4 decision in Kastigar, but he was not positive. He did not know how many states had gone to “use” immunity, once it had been found to be constitutional under Kastigar.
Vice Chairman Oceguera interjected that Mr. Horne had that particular information available on his computer.
Assemblyman Horne informed the Committee that Justice Brennan and Justice Rehnquist had taken no part in the decision. Justice Douglas and Justice Marshall had dissented. He added that the case was from 1972.
Mr. Wright indicated the Supreme Court had not revisited Kastigar. He said most of the subsequent litigation had been about the independent access. He expressed it had been a difficult test. He exemplified:
Was the evidence used or derivatively used? Someone gets convicted, and then finds religion, and four years later comes forward and wants to tell a story that implicates the immunized witness who had already incriminated himself. Does that four-year intervention and finding religion make that an independent source of the evidence? Or did it simply arise because the person got convicted and was in prison and therefore found religion? That is where most of the litigation is taking place.
Vice Chairman Oceguera asked if he had any information on what states had abandoned this immunity.
Mr. Wright said he did not have that information.
Vice Chairman Oceguera said he would have the Research Division get that information.
Assemblyman Mortenson asked if a person had been the recipient of derivative immunity, but some independent information had come forth, and he was ultimately convicted of the crime, could his defense attorney dispute the findings and request a trial to determine whether the information attained had actually been a result of his testimony.
Mr. Wright replied that was correct, the litigation would be allowed.
Vice Chairman Oceguera noted that Mr. Jackson had signed up to testify in opposition, and he sent someone out of the Committee room to go look for him.
There was a short break, and Mr. Oceguera closed the hearing on A.B. 61 and opened the hearing on A.B. 63.
Assembly Bill 63: Creates exception to hearsay rule for certain testimony offered at preliminary examinations. (BDR 4-317)
Ben Graham, Nevada District Attorneys Association, and Deputy, Clark County District Attorney’s Office, was asked to be the first person to testify on A.B. 63. Mr. Graham said that he had worked both sides of the street, from the defense to the prosecution. He said he valued the constitutional safeguards, individual liberties, and freedom. He said the Fifth Amendment did not cover all areas of individual rights. He said the area that was being addressed at that time was with regard to preliminary hearings. He informed the Committee that a preliminary hearing was conducted in justice court. He said that was where a fairly low burden of proof had been required to establish probable cause to believe that a crime had been committed and that a particular defendant had probably committed it. He added that from a practical standpoint, a defendant rarely if ever testified at a preliminary hearing. It was a burden of the state to have established the probable cause standard. The courts in Nevada had related that probable cause could have been established on fairly marginal evidence. He said what they were asking for that day was that they would be able to present testimony in court that was not necessarily direct from the witness, but had been derived from a witness and presented by someone who had been deemed to be reliable, and who had knowledge of what that person had testified about. He said in some cases the testimony might be about business records or excited utterances, and that there were too many possibilities to mention. He implied that eventually this could not only be done at the preliminary hearing stage, but also at a trial. He added that besides aiding in probable cause, there could be significant fiscal effects from allowing this type of testimony to be heard.
Kristin Erickson, Washoe County District Attorney’s Office, and the Nevada District Attorney’s Association, said that A.B. 63 would be a tremendous cost-savings measure. She said there was ample case law regarding the right for defendants to confront their accusers, and that case law was a right to confront them at trial, not at the preliminary hearing. She explained that the preliminary hearing stage was a stage of the proceedings where most of the plea bargaining had taken place. She said that in the majority of instances, the District Attorney’s Office had to subpoena a great number of witnesses to show up at the preliminary hearings, to put on the burden of proof. She added that burden of proof was slight or marginal evidence. She said they also had to show probable cause that a crime had been committed and that the defendant had committed it. She said approximately 90 percent of all cases were waived at the preliminary hearing stage, and about 10 percent had actually proceeded to a preliminary hearing. She explained there were statutes that required them to pay $25 to each and every witness who had been involved in that process. She opined that it was very costly in the state of Nevada, where tourism was the main industry. She gave an example of a little old lady sitting on a stool at a casino who had sat her purse down, and the purse had been taken. The person who stole her purse was caught, but the little old lady lived in Montana or Canada or Maryland, and the District Attorney’s Office had to pay to bring her back for the preliminary hearing. All she would be able to say at the preliminary hearing was, ”Yes, on October 16, 2002 my purse was stolen, and no, I don’t know that person who stole it.” Ms. Erickson pointed out that would be all she could say, because the victim rarely ever had seen the perpetrator. Ms. Erickson questioned if it was worth spending hundreds of dollars to bring a victim back for that small amount of testimony. She said she brought with her Darleen Skustad, who was the supervisor of the Victim Witness Assistance Center (VWAC), and she had a breakdown of the dollar figures that had been spent in order to bring witnesses back to testify. She said that she had also spoken with Robert Roshak of the Las Vegas Metropolitan Police Department, who had indicated that they budgeted $500,000 dollars per year for witness fees, simply to pay their police officers to come in and testify. She said that often the problem had developed with something like a drug buy by the Consolidated Narcotics I Unit. One officer copied the buy money, another officer searched the confidential informant, another officer found the drugs after they had gone in. As a result of that, there were four, five, or even six officers that had to be subpoenaed. She said they had to be paid about two and a half hours of overtime pay.
Darleen Skustad, Supervisor of the Victim Witness Assistance Center (VWAC), Washoe County District Attorney’s Office, said she had compiled the statistics on a monthly basis for the costs related to bringing victims and witnesses to court, and she had them broken down into several different areas. The total cost for preliminary hearings in the year 2000 was $137,678.18, and that included the cost of police, civilians, the $25.00 witness fee, travel, transportation, airfare, mileage, hotels, meals, and such things. She said that this fee did not include the staff time; she had six people who worked full time to enter those cases into a computer. She said they dealt with victims who started out friendly and cooperative, but after they had been brought in three or more times for a preliminary hearing that had not occurred, they became hostile and frustrated at the system that did not seem to work. She said it was a big budget issue and it was a time issue, and a lot of time and effort had been wasted on preliminary hearings that never happened.
Assemblyman Carpenter said he was not interested in the dollars, because it would always cost money to do these things. He wondered how the change in legislation would “play out” and how it would affect procedure.
Kristin Erickson said there were cases where they did want to see the witnesses in order to speak with them and judge their credibility. She pointed out that A.B. 63 would not prevent the District Attorney’s Office from subpoenaing witnesses.
Assemblyman Carpenter said it looked to him like what the District Attorney’s Office was trying to do was have an officer take the place of a witness. He asked, “Is that really what you are trying to do here?”
Ms. Erickson replied that they would be allowed to have the investigating officer stand in for the victim, to relay a message such as, ”Yes, I spoke with Ms. Victim, and Ms. Victim indicated that her purse had been stolen.” She said they would also like one officer to be able to testify on behalf of what another officer had told him.
Assemblyman Mortenson asked if there was a provision where the state of Nevada could contact an attorney in another state, and the attorney in the other state could go and take the deposition of the witness and have it sent back to Nevada instead of having the witness personally come all the way back to Nevada.
Ms. Erickson said there was a provision that would allow for that to transpire under certain situations, such as with a stolen vehicle. She explained that the provision was that they could provide an affidavit that said that something had been stolen. The problem with the provision was that it had a time limit on it. She thought the time limit was only three days.
Mr. Mortenson asked why the information could not be faxed.
Ms. Erickson said the information could be faxed, but the problem with that was that once a person had been arrested, they were brought in front of the court within 48 to 72 hours and advised of their charges. She explained that the District Attorney’s Office had received the reports within several days, but sometimes they had not received all of the information. She said this was especially true with regard to credit card fraud, where the victim had not usually been present. It took a lot of time to find a perpetrator of credit card fraud. She said it was extremely difficult to find the perpetrator, get all the information they were required to get, process it, forward it on, and get the affidavit back, all in the regulated amount of time.
Mr. Mortenson said he did not understand why it was so difficult. He said the person had filed a complaint and the court had their address. He opined that if that person were in another state, the District Attorney should just fax the information to them, they could sign it and fax it back, and it could be taken care of in a matter of hours.
Mr. Horne asked if even though might be costly to bring witnesses back for minimal amounts of testimony, was it not indeed the defendants’ right to confront their accusers. Secondly, Mr. Horne asked if Nevada were to allow for hearsay testimony at a preliminary hearing, if that hearsay testimony would be made part of the record at trial.
Mr. Erickson said there was ample case law that said “the right to confront the accuser” is a right that only existed at trial, not at a preliminary hearing. She clarified that a preliminary hearing is a creature of statute. She added that there were times the preliminary hearing testimony had been allowed to be used at trial, such as when the person could not be found to come to trial. She said a policeman’s testimony from a preliminary hearing would not be able to be used at trial.
Ms. Buckley said she thought the Committee had rejected this bill last session because of the constitutional concerns, such as the ones that had been pointed out by Mr. Horne. She added that the Committee had been sympathetic of the cost to subpoena and bring witnesses back to Nevada, and that they knew the cost had been overwhelming, “but that’s the price you pay for having the best constitution there is in the world.”
Allison Combs, Committee Policy Analyst, said that NRS 171.197, which was amended in 1999, was the statute that covered the use of the affidavit at preliminary examinations. She said it had applied to any witness who resided out of the state or more than 100 miles from the preliminary examination location. She said it allowed the affidavit to establish an element of the offense if the witness had been the owner or possessor of the real property, if the witness had not had the permission to possess that property. She confirmed that there was a 10-day time frame to have notified the defendant. She added that in 2001 the Legislature authorized the use of audio-visual technology for witnesses residing more than 500 miles away from the place of the preliminary examination, or, if the witness was unable to attend due to a medical condition, they could request the use of the audio-visual technology. She said the time frame allowed to request the use of that equipment was 14 days before the preliminary examination. She said there was a requirement that the video equipment had to be operated by a certified videographer, and the transcription had to be taken by a certified court reporter. She added that statute was NRS 171.1975
Vice Chairman Oceguera asked Jim Nadeau if he had wanted to testify.
Jim Nadeau, JNadeau Associates, representing the Washoe County Sheriff’s Office, said that technology had not advanced to the point where it could be fully utilized. He said there was a U.S. Supreme Court decision that said, “The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine, and the occasion for the jury to weigh the demeanor of the witness.” Mr. Nadeau defined that, “A preliminary hearing is ordinarily a much less search and exploration into the merits of the actual case than an actual trial.” He said this was because it had a more limited situation of determining whether probable cause had existed. He explained that if probable cause had existed they could hold the witness for a trial.
Mr. Nadeau admitted that Washoe County knew that allowing hearsay testimony was a huge leap, but they felt it was a matter of facilitating the courts and getting the cases through. He added that the monetary significance would be beneficial after all the budget cutbacks, and it would save money to not require 14 police officers to be subpoenaed to one preliminary hearing, just because they had been there at the time the drug lab had been taken down, when they had nothing substantial to present. He said he understood the federal system allowed hearsay testimony at preliminary hearings.
Vice Chairman Oceguera thanked Mr. Nadeau and recalled Mr. Wright in Las Vegas for his testimony of A.B. 63.
Mr. Wright said that he was in opposition of A.B. 63. He informed the Committee that the blanket hearsay exception would allow a police officer to come in and testify to any police report, and would do away with due process of law rights at preliminary hearings. He said NRS 171.196 read, “The defendant may cross-examine witnesses against him, and may introduce evidence in his own behalf.“ He said most defendants had been represented by the public defender’s office, which meant the expense had been born out of the same public dollars. He said the defendant would be asking for the representation of the witnesses, and for continuances to get the witnesses there. He pointed out that this would not save any money in those types of cases. He said the Nevada Supreme Court had recognized the due process of law requirements at a preliminary hearing. He said in Rouphier v. Sheriff, 93 NV 150, the Supreme Court found that it was error for the justice of the peace to have denied a continuance, when the defendant wanted to call a material witness. Mr. Wright made reference to Coleman v. Alabama, 1970, U.S. Supreme Court, and also to State v. Essiman, a 1965 Arizona case. He said both of those cases had recognized due process problems. Mr. Wright said:
Justice is expensive. Of course it would be cheaper to completely do away with preliminary hearings, and just allow the police to file complaints and go right to trial, but that is not the way we structured and cherish our justice system.
Vice Chairman Oceguera thanked Mr. Wright for appearing in Las Vegas and said his testimony had been appreciated. He called on the final witness of the day.
Scott Coffee, Clark County Public Defender’s Office, Las Vegas, Nevada, said he was speaking on behalf of the 70-plus attorneys in the Clark County District Attorney’s Office to discuss A.B. 63. He noted that one of the interesting discussions that had transpired that morning was what happened at preliminary hearings and why it was important. He asked the Committee to put themselves in his world for a minute. He said:
Imagine trying to defend a client, or explain to a client the case against him, when the only witness at the preliminary hearing was an officer who may not have talked to the other witnesses, who did not take the report, who did not see what had happened. Imagine trying to explain to a client that a negotiation may be in his best interest.
He said they had heard a lot about how much money they would save by allowing hearsay testimony. He opined that it would be “penny wise and pound foolish.” He said it would result in more cases ending up in district court, and it would compromise the ability of the county and district courts to negotiate cases early on. He added that it would also cause a number of innocent people to spend time in custody. He said he had had a number of cases dismissed at a preliminary hearing, where witnesses had come in and said something different than what was in the police report. He said their stories changed. He explained:
A preliminary hearing is something like a preview to a movie. You get to see what the coming attraction is. If the officer is allowed to come in and testify, you don’t get to see the coming attraction, all you get to see is the billboard on the side of the wall. It is awfully hard to see what that movie is going to play like from the billboard. It’s hard to make decisions on people’s lives based on that.
Mr. Coffee said that oftentimes victims in criminal cases were related in some manner to the accused person. He said in those situations, reasonable negotiations could be reached when the victims come to court. He said the parties involved would likely realize the seriousness or the lack of seriousness of the case before they would start making negotiations.
In conclusion, Mr. Coffee said A.B. 63 would limit the ability to negotiate cases and could cripple the situation in Clark County, where about 1 percent or less of all cases had gone to trial. He reiterated that eventually it would only end up costing money, not saving money at all. He said it was not a good bill.
Vice Chairman Oceguera asked the Committee if had any questions, and they did not. Vice Chairman Oceguera closed the hearing on A.B. 63, and adjourned the meeting at 9:37 a.m.
RESPECTFULLY SUBMITTED:
Nancy Elder
Committee Secretary
APPROVED BY:
John Oceguera, Vice Chairman
DATE: