RULES of EVIDENCE Title 4. Witnesses and Evidence (Chapters 47-56)

Watching out for the Potholes on the Road to the TRUTH -The Nevada Rules of Evidence

Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence. -John Adams

All decisions in the criminal justice system must be determined by the physical and scientific evidence, and the credible testimony corroborated by that evidence, not in response to public outcry. -Robert P. McCulloch

A select tour thought the Nevada Rules of Evidence

Title 4. Witnesses and Evidence (Chapters 47-56)

Chapter 47 General Provisions; Judicial Notice; Presumptions

General Provisions

47.020. Scope of Title 4 of NRS

1. This title governs proceedings in the courts of this State 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. Except as otherwise provided in subsection 1, 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, except with respect to provisions concerning a person with limited English proficiency, 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. 4. As used in this section, “person with limited English proficiency” has the meaning ascribed to it in NRS 1.510.

47.030. Purposes of Title 4 of NRS

The purposes of this title are to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

47.040. Rulings on evidence: Effect of error

1. Except as otherwise provided in subsection 2, error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and: (a) In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection. (b) In case the ruling is one excluding evidence, the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked. 2. This section does not preclude taking notice of plain errors affecting substantial rights although they were not brought to the attention of the judge.

47.120. Remainder of writings or recorded statements

1. When any part of a writing or recorded statement is introduced by a party, the party may be required at that time to introduce any other part of it which is relevant to the part introduced, and any party may introduce any other relevant parts. 2. This section does not limit cross-examination.

Judicial Notice

47.130. Matters of fact

1. The facts subject to judicial notice are facts in issue or facts from which they may be inferred. 2. A judicially noticed fact must be: (a) Generally known within the territorial jurisdiction of the trial court; or (b) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, so that the fact is not subject to reasonable dispute.

Presumptions

47.180. Presumptions generally: Effect; direct evidence

1. A presumption, other than a presumption against the accused in a criminal action, imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence. 2. As applied to presumptions, “direct evidence” means evidence which tends to establish the existence or nonexistence of the presumed fact independently of the basic facts.

47.240. Conclusive presumptions

The following presumptions, and no others, are conclusive: 1. A malicious and guilty intent, from the deliberate commission of an unlawful act, for the purpose of injuring another. 2. The truth of the fact recited, from the recital in a written instrument between the parties thereto, or their successors in interest by a subsequent title, but this rule does not apply to the recital of a consideration. 3. Whenever a party has, by his or her own declaration, act or omission, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, the party cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it. 4. A tenant is not permitted to deny the title of his or her landlord at the time of the commencement of the relation. 5. The judgment or order of a court, when declared by titles 2, 3 and 6 of NRS to be conclusive; but such judgment or order must be alleged in the pleadings if there is an opportunity to do so; if there is no such opportunity, the judgment or order may be used as evidence. 6. Any other presumption which, by statute, is expressly made conclusive.

47.250. Disputable presumptions

All other presumptions are disputable. The following are of that kind: 1. That an unlawful act was done with an unlawful intent. 2. That a person intends the ordinary consequences of that person’s voluntary act. 3. That evidence willfully suppressed would be adverse if produced. 4. That higher evidence would be adverse from inferior being produced. 5. That money paid by one to another was due to the latter. 6. That a thing delivered by one to another belonged to the latter. 7. That things which a person possesses are owned by that person.

8. That a person is the owner of property from exercising acts of ownership over it, or from common reputation of that ownership. 9. That official duty has been regularly performed. 10. That a court or judge, acting as such, whether in this State or any other state or country, was acting in the lawful exercise of the court’s or judge’s jurisdiction. 11. That a judicial record, when not conclusive, does still correctly determine or set forth the rights of the parties. 12. That a writing is truly dated. 13. That a letter duly directed and mailed was received in the regular course of the mail. 14. That a person not heard from in 3 years is dead. 15. That a child born in lawful wedlock is legitimate. 16. That the law has been obeyed. 17. That a trustee or other person, whose duty it was to convey real property to a particular person, has actually conveyed to that person, when such presumption is necessary to perfect the title of such person or a successor in interest. 18. In situations not governed by the Uniform Commercial Code: (a) That an obligation delivered up to the debtor has been paid. (b) That private transactions have been fair and regular. (c) That the ordinary course of business has been followed. (d) That there was good and sufficient consideration for a written contract.

Chapter 48 Admissibility Generally

48.015. “Relevant evidence” defined

As used in this chapter, “relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.

48.025. Relevant evidence generally admissible; irrelevant evidence inadmissible

1. All relevant evidence is admissible, except: (a) As otherwise provided by this title; (b) As limited by the Constitution of the United States or of the State of Nevada; or (c) Where a statute limits the review of an administrative determination to the record made or evidence offered before that tribunal. 2. Evidence which is not relevant is not admissible.

48.035. Exclusion of relevant evidence on grounds of prejudice, confusion or waste of time

1. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues or of misleading the jury. 2. Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, waste of time or needless presentation of cumulative evidence. 3. Evidence of another act or crime which is so closely related to an act in controversy or a crime charged that an ordinary witness cannot describe the act in controversy or the crime charged without referring to the other act or crime shall not be excluded, but at the request of an interested party, a cautionary instruction shall be given explaining the reason for its admission.

48.045. Evidence of character inadmissible to prove conduct; exceptions; other crimes

1. Evidence of a person's character or a trait of his or her character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except: (a) Evidence of a person's character or a trait of his or her character offered by an accused, and similar evidence offered by the prosecution to rebut such evidence; (b) Evidence of the character or a trait of character of the victim of the crime offered by an accused, subject to the procedural requirements of NRS 48.069 where applicable, and similar evidence offered by the prosecution to rebut such evidence; and (c) Unless excluded by NRS 50.090, evidence of the character of a witness, offered to attack or support his or her credibility, within the limits provided by NRS 50.085. 2. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. 3. Nothing in this section shall be construed to prohibit the admission of evidence in a criminal prosecution for a sexual offense that a person committed another crime, wrong or act that constitutes a separate sexual offense. As used in this subsection, “sexual offense” has the meaning ascribed to it in NRS 179D.097.

48.055. Methods of proving character

1. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or in the form of an opinion. On cross-examination, inquiry may be made into specific instances of conduct.

2. In cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof of specific instances of the person’s conduct may be made on direct or cross-examination.

48.059. Habit; routine practice

1. Evidence of the habit of a person or the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. 2. Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.

48.095. Subsequent remedial measures

1. When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. 2. This section does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control, feasibility of precautionary measures, or impeachment.

48.105. Compromise; offers to compromise

1. Evidence of: (a) Furnishing or offering or promising to furnish; or (b) Accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. 2. This section does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

48.125. Withdrawn plea of guilty or guilty but mentally ill or offer to plead guilty or guilty but mentally ill not admissible; plea of nolo contendere or offer to plead nolo contendere not admissible

1. Evidence of a plea of guilty or guilty but mentally ill, later withdrawn, or of an offer to plead guilty or guilty but mentally ill to the crime charged or any other crime is not admissible in a criminal proceeding involving the person who made the plea or offer. 2. Evidence of a plea of nolo contendere or of an offer to plead nolo contendere to the crime charged or any other crime is not admissible in a civil or criminal proceeding involving the person who made the plea or offer.

48.135. Liability insurance

1. Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. 2. This section does not require the exclusion of evidence of insurance against liability when it is relevant for another purpose, such as proof of agency, ownership or control, or bias or prejudice of a witness.

Chapter 49 Privileges

General Provisions

49.015. Privileges recognized only as provided

1. Except as otherwise required by the Constitution of the United States or of the State of Nevada, and except as otherwise provided in this title or title 14 of NRS, or NRS 41.071 or 463.120 or any other specific statute, no person has a privilege to: (a) Refuse to be a witness; (b) Refuse to disclose any matter; (c) Refuse to produce any object or writing; or (d) Prevent another from being a witness or disclosing any matter or producing any object or writing. 2. This section does not: (a) Impair any privilege created by title 14 of NRS or by the Nevada Rules of Civil Procedure which is limited to a particular stage of the proceeding; or (b) Extend any such privilege to any other stage of a proceeding.

49.027. Prevention of disclosure of privileged matter by interpreter

A person who has a privilege against the disclosure of a matter may prevent the disclosure of that matter by an interpreter to whom the matter was disclosed merely to facilitate a privileged communication of the matter.

49.035-.375.

Who has privilege?

Who can claim it?

Scope of Privilege Lawyer Accountant Psychologist Doctor Marriage and Family Therapist Clinical Professional Social Worker Victim’s Advocate Others Confessor New Media Teacher Law Enforcement Married persons Trade Secrets Identity of Informer

49.385. Waiver of privilege by voluntary disclosure

1. A person upon whom these rules confer a privilege against disclosure of a confidential matter waives the privilege if the person or the person’s predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter. 2. This section does not apply if the disclosure is: (a) Itself a privileged communication; or (b) Made to an interpreter employed merely to facilitate communications.

Chapter 50 Witnesses

General Provisions

50.015. General rule of competency

Every person is competent to be a witness except as otherwise provided in this title.

50.025. Lack of personal knowledge

1. A witness may not testify to a matter unless: (a) Evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter; or (b) The witness states his or her opinion or inference as an expert. 2. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness.

50.035. Oath or affirmation

1. Before testifying, every witness shall be required to declare that he or she will testify truthfully, by oath or affirmation administered in a form calculated to awaken his or her conscience and impress his or her mind with the duty to do so. 2. An affirmation is sufficient if the witness is addressed in the following terms: “You do solemnly affirm that the evidence you shall give in this issue (or matter), pending between ______and ______, shall be the truth, the whole truth, and nothing but the truth.” Assent to this affirmation shall be made by the answer, “I do.”

50-050-0545. Interpreters

50.050. Interpreters for person with communications disability: Definitions; appointment required in judicial proceedings; compensation; certain persons not required to pay for interpreter

1. As used in NRS 50.050 to 50.053, inclusive, unless the context requires otherwise: (a) “Interpreter” means a: (1) Registered interpreter; (2) Registered legal interpreter; or (3) Person who is appointed as an interpreter pursuant to subsection 2 of NRS 50.0515.

(b) “Person with a communications disability” means a person who, because the person is deaf or has a physical speaking impairment, cannot readily understand or communicate in the English language or cannot understand the proceedings. (c) “Registered interpreter” means a person registered with the Aging and Disability Services Division of the Department of Health and Human Services pursuant to NRS 656A.100 to engage in the practice of interpreting. (d) “Registered legal interpreter” means a person registered with the Aging and Disability Services Division of the Department of Health and Human Services pursuant to NRS 656A.100 to engage in the practice of interpreting in a legal setting. 2. In all judicial proceedings in which a person with a communications disability appears as a witness, the court, magistrate or other person presiding over the proceedings shall appoint an interpreter to interpret the proceedings to that person and to interpret the testimony of that person to the court, magistrate or other person presiding. 3. The court, magistrate or other person presiding over the proceedings shall fix a reasonable compensation for the services and expenses of the interpreter appointed pursuant to this section. If the judicial proceeding is civil in nature, the compensation of the interpreter may be taxed as costs, except that the person with a communications disability for whose benefit the interpreter is appointed must not be taxed, charged a fee or otherwise required to pay any portion of the compensation of the interpreter. 4. Claims against a county, municipality, this State or any agency thereof for the compensation of an interpreter in a criminal proceeding or other proceeding for which an interpreter must be provided at public expense must be paid in the same manner as other claims against the respective entities are paid. Payment may be made only upon the certificate of the judge, magistrate or other person presiding over the proceedings that the interpreter has performed the services required and incurred the expenses claimed.

50.051. Interpreters for person with communications disability: Appointment required in criminal proceedings

An interpreter must be appointed at public expense for a person with a communications disability who is a party to or a witness in a criminal proceeding.

50.0515. Interpreters for person with communications disability: Appointment of registered legal interpreter required; exceptions

1. Except as otherwise provided in this section, in any judicial or other proceeding in which the court, magistrate or other person presiding over the proceeding is required to appoint an interpreter for a person with a communications disability, the court, magistrate or other person presiding over the proceeding shall appoint a registered legal interpreter to interpret the proceeding to that person and 10 to interpret the testimony of that person to the court, magistrate or other person presiding over the proceeding. 2. If a registered legal interpreter cannot be found or is otherwise unavailable, or if the appointment of a registered legal interpreter will cause a substantial delay in the proceeding, the court, magistrate or other person presiding over the proceeding may, after making a finding to that effect and conducting a voir dire examination of prospective interpreters, appoint a registered interpreter or any other interpreter that the court, magistrate or other person presiding over the proceeding determines is readily able to communicate with the person with a communications disability, translate the proceeding for him or her, and accurately repeat and translate the statements of the person with a communications disability to the court, magistrate or other person presiding over the proceeding.

50.052. Interpreters for person with communications disability: Replacement; persons ineligible for appointment; selection and approval by person with communications disability

1. If an interpreter appointed for a person with a communications disability is not effectively or accurately communicating with or on behalf of the person with a communications disability, and that fact becomes known to the person who appointed the interpreter, another interpreter must be appointed. 2. Unless otherwise agreed upon by the parties, a person may not be appointed as an interpreter of a person with a communications disability in a proceeding if the interpreter is: (a) The spouse of the person with a communications disability or related to the person; or (b) Otherwise interested in the outcome of the proceeding or biased for or against one of the parties. 3. Whenever possible, a person with a communications disability must be given an interpreter of his or her choice or one of whom he or she approves.

50.053. Interpreters for person with communications disability: Oath; rights and privileges

1. Before undertaking his or her duties, the interpreter shall swear or affirm that he or she will make a true interpretation in an understandable manner to the person for whom he or she has been appointed, and that he or she will repeat the statements of the person with a communications disability in the English language to the best of his or her ability. 2. While in the proper performance of his or her duties, an interpreter acts in the place of the person with a communications disability and to that extent has all of the rights and privileges of that person for purposes of the proceeding, including access to all relevant material.

50.0545. Interpreter for person with limited English proficiency: Appointment required in criminal proceedings; appointment when certified or registered interpreter not available

1. An interpreter must be appointed at public expense for a person with limited English proficiency who is a defendant or a witness in a criminal proceeding. 2. If a certified or registered court interpreter is not available, a court shall appoint an interpreter in accordance with the regulations adopted pursuant to paragraph (e) of subsection 2 of NRS 1.510. 3. As used in this section: (a) “Interpreter” means a person who has a certificate or registration as an interpreter issued by the Court Administrator pursuant to NRS 1.510 and 1.520. (b) “Person with limited English proficiency” has the meaning ascribed to it in NRS 1.510.

50.055. Competency: Judge as witness

1. The judge presiding at the trial shall not testify in that trial as a witness. 2. If the judge is called to testify, no objection need be made in order to preserve the point. N.R.S. 50.067

50.067. Competency: Receipt of certain care or counseling

1. A person is not incompetent to be a witness solely by reason of the fact that the person or a member of the person’s family has received medical, psychiatric, or psychological care or counseling in connection with the act or event giving rise to the proceeding. 2. Evidence relating to such care or counseling is not inadmissible by reason of this section, if otherwise admissible under the provisions of this title.

50.068. Competency: Defendant who agrees to testify against another defendant pursuant to plea bargain

1. A defendant is not incompetent to be a witness solely by reason of the fact that the defendant enters into an agreement with the prosecuting attorney in which the defendant agrees to testify against another defendant in exchange for a plea of guilty, guilty but mentally ill or nolo contendere to a lesser charge or for a recommendation of a reduced sentence. 2. The testimony of the defendant who is testifying may be admitted whether or not the defendant has entered his or her plea or been sentenced pursuant to the agreement with the prosecuting attorney.

50.070. Termination or threat of termination of employment because of service as witness prohibited; penalty; remedies

1. Any person, corporation, partnership, association or other entity who is: (a) An employer; or (b) The employee, agent or officer of an employer, vested with the power to terminate or recommend termination of employment, of a person who is a witness or who has received a summons to appear as a witness in a judicial or administrative proceeding, who deprives the witness or person summoned of his or her employment, as a consequence of his or her service as a witness or prospective witness, or who asserts to the witness or person summoned that his or her service as a witness or prospective witness will result in termination of his or her employment, is guilty of a misdemeanor. 2. A person discharged from employment in violation of subsection 1 may commence a civil action against his or her employer and obtain: (a) Wages and benefits lost as a result of the violation; (b) An order of reinstatement without loss of position, seniority or benefits; (c) Damages equal to the amount of the lost wages and benefits; and (d) Reasonable attorney's fees fixed by the court.

Impeach

50.075. Who may impeach

The credibility of a witness may be attacked by any party, including the party calling the witness.

50.085. Evidence of character and conduct of witness

1. Opinion evidence as to the character of a witness is admissible to attack or support the witness’s credibility but subject to these limitations: (a) Opinions are limited to truthfulness or untruthfulness; and (b) Opinions of truthful character are admissible only after the introduction of opinion evidence of untruthfulness or other evidence impugning the witness’s character for truthfulness. 2. Evidence of the reputation of a witness for truthfulness or untruthfulness is inadmissible. 3. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s credibility, other than conviction of crime, may not be proved by extrinsic evidence. They may, however, if relevant to truthfulness, be inquired into on cross-examination of the witness or on cross-examination of a witness who testifies to an opinion of his or her character for truthfulness or

13 untruthfulness, subject to the general limitations upon relevant evidence and the limitations upon interrogation and subject to the provisions of NRS 50.090. N.R.S. 50.090

50.090. Evidence of previous sexual conduct of victim of sexual assault or statutory sexual seduction inadmissible to challenge victim's credibility; exceptions

In any prosecution for sexual assault or statutory sexual seduction or for attempt to commit or conspiracy to commit either crime, the accused may not present evidence of any previous sexual conduct of the victim of the crime to challenge the victim's credibility as a witness unless the prosecutor has presented evidence or the victim has testified concerning such conduct, or the absence of such conduct, in which case the scope of the accused's cross-examination of the victim or rebuttal must be limited to the evidence presented by the prosecutor or victim.

50.095. Impeachment by evidence of conviction of crime

1. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime is admissible but only if the crime was punishable by death or imprisonment for more than 1 year under the law under which the witness was convicted. 2. Evidence of a conviction is inadmissible under this section if a period of more than 10 years has elapsed since: (a) The date of the release of the witness from confinement; or (b) The expiration of the period of the witness’s parole, probation or sentence, whichever is the later date. 3. Evidence of a conviction is inadmissible under this section if the conviction has been the subject of a pardon. 4. Evidence of juvenile adjudications is inadmissible under this section. 5. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible. 6. A certified copy of a conviction is prima facie evidence of the conviction.

Examination of Witnesses

50.115. Mode and order of interrogation and presentation

1. The judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence: (a) To make the interrogation and presentation effective for the ascertainment of the truth;

(b) To avoid needless consumption of time; and (c) To protect witnesses from undue harassment or embarrassment. 2. Cross-examination is limited to the subject matter of the direct examination and matters affecting the credibility of the witness, unless the judge in the exercise of discretion permits inquiry into additional matters as if on direct examination. 3. Except as provided in subsection 4: (a) Leading questions may not be used on the direct examination of a witness without the permission of the court. (b) Leading questions are permitted on cross-examination. 4. Except that the prosecution may not call the accused in a criminal case, a party is entitled to call: (a) An adverse party; or (b) A witness identified with an adverse party, and interrogate by leading questions. The attorney for the adverse party may employ leading questions in cross-examining the party or witness so called only to the extent permissible if the attorney had called that person on direct examination.

50.125. Writing used to refresh memory

1. If a witness uses a writing to refresh his or her memory: (a) While testifying, an adverse party is entitled: (1) To have it produced at the hearing; (2) To inspect it; (3) To cross-examine the witness thereon; and (4) To introduce in evidence those portions which relate to the testimony of the witness for the purpose of affecting the witness's credibility. (b) Before testifying, if the judge in his or her discretion determines that the interests of justice so require, an adverse party is entitled: (1) To have it produced at the hearing; (2) To inspect it; (3) To cross-examine the witness thereon; and (4) To introduce in evidence those portions which relate to the testimony of the witness for the purpose of affecting the witness's credibility. 2. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the judge shall examine the writing in chambers, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. 3. If a writing is not produced or delivered pursuant to order under this section, the judge shall make any order which justice requires, except that in criminal cases when the State elects not to comply, the order shall be one:

(a) Striking the testimony; or (b) If the judge in his or her discretion determines that the interests of justice so require, declaring a mistrial.

50.135. Prior statements of witness

1. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown or its contents disclosed to the witness, but on request the statement shall be shown or disclosed to opposing counsel. 2. Extrinsic evidence of a prior contradictory statement by a witness is inadmissible unless: (a) The statement fulfills all the conditions required by subsection 3 of NRS 51.035; or (b) The witness is afforded an opportunity to explain or deny the statement and the opposite party is afforded an opportunity to interrogate the witness thereon.

50.145. Calling and interrogation of witness by judge

1. The judge may, on his or her own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called. 2. The judge may interrogate witnesses, whether called by the judge or by a party. The parties may object to questions so asked and to evidence thus adduced at any time prior to the submission of the cause.

50.155. Exclusion and sequestration of witnesses

1. Except as otherwise provided in subsections 2 and 3, at the request of a party the judge shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and the judge may make the order of his or her own motion. 2. This section does not authorize the exclusion of: (a) A party who is a natural person; (b) An officer or employee of a party which is not a natural person designated as its representative by its attorney; (c) A person whose presence is shown by a party to be essential to the presentation of that party’s cause; or (d) Except as otherwise provided in NRS 171.204, any of the persons listed in subsection 1 of that section. 3. A person who is called as a witness primarily for the purpose of identifying the victim may not be excluded except in the discretion of the judge.

Attendance of Witnesses

50.165. Duty to appear and testify

1. A witness, duly served with a subpoena, shall attend at the time appointed, with any papers under the witness’s control required by the subpoena, to answer all pertinent and legal questions, and, unless sooner discharged, to remain until the testimony is closed. 2. A person present in court or before a judicial officer may be required to testify in the same manner as if the person were in attendance upon a subpoena issued by such court or officer.

50.175. Witness protected from arrest when attending, going to and returning from court or other place of attendance

Every person who has been, in good faith, served with a subpoena to attend as a witness before a court, judge, commissioner, master or other person, in a case where the disobedience of the witness may be punished as a contempt, is exonerated from arrest in a civil action while going to the place of attendance, necessarily remaining there, and returning therefrom.

50.195. Penalties for disobedience

1. Refusal to be sworn or to answer as a witness may be punished as a contempt by the court. In a civil action, if the person so refusing is a party, the court may strike any pleading on the person’s behalf, and may enter judgment against that person. 2. A witness disobeying a subpoena in a civil action shall also forfeit to the party aggrieved the sum of $100 and all damages which the party may sustain by the failure of the witness to attend, which forfeiture and damages may be recovered in a civil action. 3. A witness disobeying a subpoena issued on the part of a defendant in a criminal action shall also forfeit to the defendant the sum of $100, which may be recovered in a civil action, unless good cause can be shown for the witness’s nonattendance

50.205. Warrant for arrest of witness failing to attend

In case of failure of a witness to attend, the court or officer issuing the subpoena, upon proof of the service thereof and of the failure of the witness, may issue a warrant to the sheriff of the county to arrest the witness and bring the witness before the court or officer where the attendance of the witness was required.

50.215. Examination of prisoner as witness; notification of Department of Corrections required

1. A person imprisoned in the state prison or in a county jail may be examined as a witness in the district court pursuant to this section. The examination may only be made on motion of a party upon affidavit showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality. 2. In a civil action, if the witness is imprisoned in the county where the action or proceeding is pending, production of the witness may be required by the court or judge. In all other cases, examination of the witness, when allowed, must be taken upon deposition. 3. In a criminal action, an order for that purpose may be made by the district court or district judge, at chambers, and executed by the sheriff of the county where the action is pending. Except as otherwise provided by NRS 209.274, the judge may order the sheriff to bring the prisoner before the court at the expense of the State or at the expense of the defendant. 4. If a person imprisoned in the state prison is required or requested to appear as a witness in any action, the Department of Corrections must be notified in writing: (a) Not less than 7 business days before the date scheduled for the person’s appearance in court if the offender is incarcerated: (1) In a prison located not more than 65 miles from Carson City; (2) In a prison located not more than 40 miles from Las Vegas; or (3) In a prison located not more than 95 miles from Ely. (b) Not less than 14 business days before the date scheduled for his or her appearance in court if the offender is incarcerated in a prison which is located at a distance which exceeds those specified in paragraph (a).

Fees of Witnesses

50.225. Fees and expenses of witnesses

1. For attending the courts of this State in any criminal case, or civil suit or proceeding before a court of record, master, commissioner, 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 the witness resides at the standard mileage reimbursement rate for which a deduction is allowed for the purposes of federal income tax 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

18 the witness resides, each witness is entitled to be paid an amount equal to the allowance for travel by private conveyance established by the State Board of Examiners for state officers and employees generally. If the board of county commissioners 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 established by the State Board of Examiners for state officers and employees generally. 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 the witness resides, each witness is entitled to be paid the per diem allowance provided for state officers and employees generally. If the board of county commissioners 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, the per diem allowance provided for state officers and employees generally. 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, the witness is entitled to reimbursement for the actual and necessary expenses for going to and returning from the place where the court is held. The witness is also entitled to receive the same per diem allowance 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 or her own behalf. 6. A person is not obligated to appear in a civil action or proceeding unless the person has been paid an amount equal to 1 day's fees, the per diem allowance provided by the board of county commissioners pursuant to subsection 2, if any, and the travel expenses reimbursable pursuant to this section.

Opinions and Expert Testimony

50.265. Opinions: Lay witnesses

If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are:

1. Rationally based on the perception of the witness; and 2. Helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue.

50.275. Testimony by experts

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge, skill, experience, training or education may testify to matters within the scope of such knowledge.

50.285. Opinions: Experts

1. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. 2. If of a type reasonably relied upon by experts in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

50.295. Opinions: Ultimate issues

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

50.305. Disclosure of facts and data underlying expert opinion

The expert may testify in terms of opinion or inference and give his or her reasons therefor without prior disclosure of the underlying facts or data, unless the judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

50.310. Admissibility of affidavit or declaration of laboratory director regarding results of test performed by medical laboratory

1. The affidavit or declaration of a laboratory director who has qualified in the district court of any county as an expert witness to testify regarding the results of a test of a medical laboratory is admissible in evidence in any civil, criminal or administrative proceeding to prove: (a) That the affiant or declarant is a laboratory director. (b) The results of a test that the medical laboratory is licensed to conduct and which is conducted by the medical laboratory of which the affiant or declarant is the laboratory director.

The affidavit or declaration must contain the evidentiary foundation upon which the results of the test are based, including the description of the test, the personnel involved and the controls employed in conducting the test. 2. As used in this section: (a) “Laboratory director” has the meaning ascribed to it in NRS 652.050. (b) “Medical laboratory” has the meaning ascribed to it in NRS 652.060.

50.315. Admissibility of affidavit or declaration offered to prove certain facts concerning use of certain devices or withdrawal or holding of evidence related to determining presence of alcohol, controlled substance, chemical, poison, organic solvent or another prohibited substance

1. Except as otherwise provided in subsections 6 and 7, the affidavit or declaration of a person is admissible in evidence in any criminal or administrative proceeding to prove: (a) That the affiant or declarant has been certified by the Director of the Department of Public Safety as being competent to operate devices of a type certified by the Committee on Testing for Intoxication as accurate and reliable for testing a person's breath to determine the concentration of alcohol in his or her breath; (b) The identity of a person from whom the affiant or declarant obtained a sample of breath; and (c) That the affiant or declarant tested the sample using a device of a type so certified and that the device was functioning properly. 2. Except as otherwise provided in subsections 6 and 7, the affidavit or declaration of a person who has examined a prepared chemical solution or gas that has been used in calibrating, or verifying the calibration of, a device for testing another's breath to determine the concentration of alcohol in his or her breath is admissible in evidence in any criminal or administrative proceeding to prove: (a) The occupation of the affiant or declarant; and (b) That the solution or gas has the chemical composition necessary for use in accurately calibrating, or verifying the calibration of, the device. 3. Except as otherwise provided in subsections 6 and 7, the affidavit or declaration of a person who calibrates a device for testing another's breath to determine the concentration of alcohol in his or her breath is admissible in evidence in any criminal or administrative proceeding to prove: (a) The occupation of the affiant or declarant; (b) That on a specified date the affiant or declarant calibrated the device at a named law enforcement agency by using the procedures and equipment prescribed in the regulations of the Committee on Testing for Intoxication; (c) That the calibration was performed within the period required by the Committee's regulations; and (d) Upon completing the calibration of the device, it was operating properly.

4. Except as otherwise provided in subsections 6 and 7, the affidavit or declaration made under the penalty of perjury of a person who withdraws a sample of blood from another for analysis by an expert as set forth in NRS 50.320 is admissible in any criminal or administrative proceeding to prove: (a) The occupation of the affiant or declarant; (b) The identity of the person from whom the affiant or declarant withdrew the sample; (c) The fact that the affiant or declarant kept the sample in his or her sole custody or control and in substantially the same condition as when he or she first obtained it until delivering it to another; and (d) The identity of the person to whom the affiant or declarant delivered it. 5. Except as otherwise provided in subsections 6 and 7, the affidavit or declaration of a person who receives from another a sample of blood or urine or other tangible evidence that is alleged to contain alcohol or a controlled substance, chemical, poison, organic solvent or another prohibited substance may be admitted in any criminal or civil or administrative proceeding to prove: (a) The occupation of the affiant or declarant; (b) The fact that the affiant or declarant received a sample or other evidence from another person and kept it in his or her sole custody or control in substantially the same condition as when he or she first received it until delivering it to another; and (c) The identity of the person to whom the affiant or declarant delivered it. 6. If, not later than 10 days before the date set for trial or such shorter time before the date set for trial as authorized by the court, the defendant objects in writing to admitting into evidence the affidavit or declaration, the court shall not admit the affidavit or declaration into evidence and may order the prosecution to produce the witness and may continue the trial for any time the court deems reasonably necessary to receive such testimony. The time within which a trial is required is extended by the time of the continuance. 7. During any trial in which the defendant has been accused of committing a felony, the defendant may object in writing to admitting into evidence an affidavit or declaration described in this section. If the defendant makes such an objection, the court shall not admit the affidavit or declaration into evidence and the prosecution may cause the person to testify to any information contained in the affidavit or declaration. 8. The Committee on Testing for Intoxication shall adopt regulations prescribing the form of the affidavits and declarations described in this section.

50.320. Admissibility of affidavit or declaration of chemist or other expert witness regarding presence in breath, blood or urine of alcohol, controlled substance, chemical, poison, organic solvent or another prohibited substance or regarding identity or quantity of controlled substance possessed

1. The affidavit or declaration of a chemist and any other person who has qualified in a court of record in this State to testify as an expert witness regarding the presence in the breath, blood or

22 urine of a person of alcohol, a controlled substance, or a chemical, poison, organic solvent or another prohibited substance, 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 concentration of alcohol or the presence or absence of a controlled substance, chemical, poison, organic solvent or another prohibited substance, as the case may be, is admissible in the manner provided in this section. 2. An affidavit or declaration 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 or declaration. 3. The defendant may object in writing to admitting into evidence an affidavit or declaration submitted to prove any fact set forth in subsection 1 during the defendant’s trial. If the defendant makes such an objection, the court shall not admit the affidavit or declaration into evidence and the prosecuting attorney may cause the person to testify to any information contained in the affidavit or declaration. 4. The Committee on Testing for Intoxication shall adopt regulations prescribing the form of the affidavits and declarations described in this section. 5. As used in this section, “chemist” means any person employed in a medical laboratory, pathology laboratory, toxicology laboratory or forensic laboratory whose duties include, without limitation: (a) The analysis of the breath, blood or urine of a person to determine the presence or quantification of alcohol or a controlled substance, chemical, poison, organic solvent or another prohibited substance; or (b) Determining the identity or quantity of any controlled substance.

50.325. Procedure for admission of affidavit or declaration of expert or other person to prove existence of alcohol, quantity of controlled substance or existence or identity of controlled substance, chemical, poison, organic solvent or another prohibited substance in prosecution of certain criminal offenses

1. If a person is charged with an offense listed in subsection 4, 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, organic solvent or another prohibited substance, 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 preliminary hearing, hearing before a grand jury or trial concerning the offense. Except as otherwise

23 provided in NRS 50.315 and 50.320, the affidavit or declaration must be admitted into evidence at the trial. 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 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, or personally served on the defendant's counsel or the defendant; 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. 4. The provisions of this section apply to any of the following offenses: (a) An offense punishable pursuant to NRS 202.257, 455A.170, 455B.080, 493.130 or 639.283. (b) An offense punishable pursuant to chapter 453, 484A to 484E, inclusive, or 488 of NRS. (c) A homicide resulting from driving, operating or being in actual physical control of a vehicle or a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance or resulting from any other conduct prohibited by NRS 484C.110, 484C.130, 484C.430, subsection 2 of NRS 488.400, NRS 488.410, 488.420 or 488.425. (d) Any other offense for which it is necessary to prove, as an element of the offense: (1) The existence of any alcohol; (2) The quantity of a controlled substance; or (3) The existence or identity of a controlled substance, chemical, poison, organic solvent or another prohibited substance.

50.330. Testimony given pursuant to NRS 50.315 or 50.320 may be given by use of simultaneous audiovisual transmission; requirements for use

Any testimony given pursuant to NRS 50.315 or 50.320 may be given by means of simultaneous audiovisual transmission accomplished through the use of: 1. One or more cameras at a location other than the courtroom that depict the witness in real time so that the defendant, the defendant's counsel, the prosecutor, the court and the jury, if any, can see the witness in his or her entirety; and 2. One or more cameras in the courtroom that depict the defendant, the defendant's counsel, the prosecutor, the court and the jury, if any, in real time on a screen visible to the witness who is at another location.

50.345. Expert testimony to show victim's behavior or condition is consistent with behavior or condition of victim of sexual assault

In any prosecution for sexual assault, expert testimony is not inadmissible to show that the victim's behavior or mental or physical condition is consistent with the behavior or condition of a victim of sexual assault.

50.350. Expert testimony which concerns behavior of defendant in preparing child or vulnerable person for sexual abuse

1. In any criminal or juvenile delinquency action, expert testimony offered by the prosecution or defense which concerns the behavior of a defendant in preparing a child under the age of 18 years or a vulnerable person as defined in NRS 200.5092 for sexual abuse by the defendant is admissible for any relevant purpose. Such expert testimony may concern, without limitation: (a) The effect on the victim from the defendant creating a physical or emotional relationship with the victim before the sexual abuse; and (b) Any behavior of the defendant that was intended to reduce the resistance of the victim to the sexual abuse or reduce the likelihood that the victim would report the sexual abuse. 2. As used in this section, “sexual abuse” has the meaning ascribed to it in NRS 432B.100.

Uniform Child Witness Testimony by Alternative Methods Act

50.500. Short title

The provisions of NRS 50.500 to 50.620, inclusive, may be cited as the Uniform Child Witness Testimony by Alternative Methods Act.

50.520. “Alternative method” defined

“Alternative method” means a method by which a child witness testifies which does not include all of the following: 1. Having the child testify in person in an open forum; 2. Having the child testify in the presence and full view of the finder of fact and presiding officer; and 3. Allowing all of the parties to be present, to participate and to view and be viewed by the child.

50.570. Hearing to determine whether to allow testimony by alternative method

1. The presiding officer in a criminal or noncriminal proceeding: (a) May order a hearing to determine whether to allow a child witness to testify by an alternative method. (b) For good cause shown, shall order the hearing upon motion of a party, a child witness, or a natural person determined by the presiding officer to have sufficient standing to act on behalf of the child. 2. A hearing to determine whether to allow a child witness to testify by an alternative method must be conducted on the record after reasonable notice to all parties, any nonparty movant, and any other person the presiding officer specifies. The child's presence is not required at the hearing unless ordered by the presiding officer. In conducting the hearing, the presiding officer is not bound by rules of evidence except the rules of privilege.

50.580. Standards for determining whether child witness may testify by alternative method

1. In a criminal proceeding, the presiding officer may allow a child witness to testify by an alternative method only in the following situations: (a) The child may testify otherwise than in an open forum in the presence and full view of the finder of fact if the presiding officer finds by clear and convincing evidence that the child would suffer serious emotional trauma that would substantially impair the child's ability to communicate with the finder of fact if required to testify in the open forum. (b) The child may testify other than face-to-face with the defendant if the presiding officer finds by clear and convincing evidence that the child would suffer serious emotional trauma that would substantially impair the child's ability to communicate with the finder of fact if required to be confronted face-to-face by the defendant. 2. In a noncriminal proceeding, the presiding officer may allow a child witness to testify by an alternative method if the presiding officer finds by a preponderance of the evidence that allowing the child to testify by an alternative method is necessary to serve the best interests of the child or enable the child to communicate with the finder of fact. In making this finding, the presiding officer shall consider: (a) The nature of the proceeding; (b) The age and maturity of the child; (c) The relationship of the child to the parties in the proceeding; (d) The nature and degree of emotional trauma that the child may suffer in testifying; and (e) Any other relevant factor.

50.610. Right of party to examine child witness

An alternative method ordered by the presiding officer must permit a full and fair opportunity for examination or cross-examination of the child witness by each party.

Psychological or Psychiatric Examination of Victims and Witnesses to Sexual Offenses 50.700. Court may not order victim or witness to take or submit to psychological or psychiatric examination; exclusion of testimony of licensed psychologist, psychiatrist or clinical social worker

1. In any criminal or juvenile delinquency action relating to the commission of a sexual offense, a court may not order the victim of or a witness to the sexual offense to take or submit to a psychological or psychiatric examination. 2. The court may exclude the testimony of a licensed psychologist, psychiatrist or clinical social worker who performed a psychological or psychiatric examination on the victim or witness if: (a) There is a prima facie showing of a compelling need for an additional psychological or psychiatric examination of the victim or witness by a licensed psychologist, psychiatrist or clinical social worker; and (b) The victim or witness refuses to submit to an additional psychological or psychiatric examination by a licensed psychologist, psychiatrist or clinical social worker. 3. In determining whether there is a prima facie showing of a compelling need for an additional psychological or psychiatric examination of the victim or witness pursuant to subsection 2, the court must consider whether: (a) There is a reasonable basis for believing that the mental or emotional state of the victim or witness may have affected his or her ability to perceive and relate events relevant to the criminal prosecution; and (b) Any corroboration of the offense exists beyond the testimony of the victim or witness.

. . .

Chapter 51 Hearsay [or Heresay if you like]

General Provisions

51.035. “Hearsay” defined

“Hearsay” means a statement offered in evidence to prove the truth of the matter asserted unless: 1. The statement is one made by a witness while testifying at the trial or hearing; 2. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is: (a) Inconsistent with the declarant’s testimony; (b) Consistent with the declarant’s testimony and offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; (c) One of identification of a person made soon after perceiving the person; or (d) A transcript of testimony given under oath at a trial or hearing or before a grand jury; or 3. The statement is offered against a party and is: (a) The party’s own statement, in either the party’s individual or a representative capacity; (b) A statement of which the party has manifested adoption or belief in its truth; (c) A statement by a person authorized by the party to make a statement concerning the subject; (d) A statement by the party’s agent or servant concerning a matter within the scope of the party’s agency or employment, made before the termination of the relationship; or (e) A statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

51.045. “Statement” defined

“Statement” means: 1. An oral or written assertion; or 2. Nonverbal conduct of a person, if it is intended as an assertion.

51.055. “Unavailable as a witness” defined

1. A declarant is “unavailable as a witness” if the declarant is: (a) Exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; (b) Persistent in refusing to testify despite an order of the judge to do so; (c) Unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(d) Absent from the hearing and beyond the jurisdiction of the court to compel appearance and the proponent of the declarant’s statement has exercised reasonable diligence but has been unable to procure the declarant’s attendance or to take the declarant’s deposition. 2. A declarant is not “unavailable as a witness” if the declarant’s exemption, refusal, inability or absence is due to the procurement or wrongdoing of the proponent of the declarant’s statement for the purpose of preventing the witness from attending or testifying.

51.065. General rule

1. Hearsay is inadmissible except as provided in this chapter, title 14 of NRS and the Nevada Rules of Civil Procedure. 2. This section constitutes the hearsay rule.

51.067. Hearsay within hearsay

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms to an exception to the hearsay rule provided in this chapter.

51.069. Credibility of declarant

1. When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked or supported by any evidence which would be admissible for those purposes if the declarant had testified as a witness. 2. Evidence of a statement or conduct by the declarant at any time, which is inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant must have been afforded an opportunity to deny or explain. 3. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party may examine the witness on that statement as if the witness were under cross- examination.

EXCEPTIONS

Availability of declarant immaterial

51.075. General exception; other exceptions illustrative

1. A statement is not excluded by the hearsay rule if its nature and the special circumstances under which it was made offer assurances of accuracy not likely to be enhanced by calling the declarant as a witness, even though the declarant is available. 2. The provisions of NRS 51.085 to 51.305, inclusive, are illustrative and not restrictive of the exception provided by this section.

51.085. Present sense impressions

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, is not inadmissible under the hearsay rule.

51.095. Excited utterances

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition is not inadmissible under the hearsay rule.

51.105. Then existing mental, emotional or physical condition

1. A statement of the declarant's then existing state of mind, emotion, sensation or physical condition, such as intent, plan, motive, design, mental feeling, pain and bodily health, is not inadmissible under the hearsay rule. 2. A statement of memory or belief to prove the fact remembered or believed is inadmissible under the hearsay rule unless it relates to the execution, revocation, identification or terms of declarant's will.

51.115. Statements for purposes of medical diagnosis or treatment

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof are not inadmissible under the hearsay rule insofar as they were reasonably pertinent to diagnosis or treatment.

51.125. Recorded recollection

1. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately is not

30 inadmissible under the hearsay rule if it is shown to have been made when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. 2. The memorandum or record may be read into evidence but may not itself be received unless offered by an adverse party.

51.135. Record of regularly conducted activity

A memorandum, report, record or compilation of data, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony or affidavit of the custodian or other qualified person, is not inadmissible under the hearsay rule unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

51.145. Absence of entry in records of regularly conducted activity

Evidence that a matter is not included in the memoranda, reports, records or data compilations, in any form, of a regularly conducted activity is not inadmissible under the hearsay rule to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record or data compilation was regularly made and preserved.

51.155. Public records and reports

Records, reports, statements or data compilations, in any form, of public officials or agencies are not inadmissible under the hearsay rule if they set forth: 1. The activities of the official or agency; 2. Matters observed pursuant to duty imposed by law; or 3. In civil cases and against the State in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or the method or circumstances of the investigation indicate lack of trustworthiness.

51.165. Required reports

Records or data compilations, in any form, of births, fetal deaths, deaths or marriages are not inadmissible under the hearsay rule if the report thereof was made to a public office pursuant to requirements of law.

51.175. Absence of public record or entry

To prove: 1. The absence of a record, report, statement or data compilation, in any form; or 2. The nonoccurrence or nonexistence of a matter of which a record, report, statement or data compilation, in any form, was regularly made and preserved by a public officer, agency or official, evidence in the form of a certificate of the custodian or other person authorized to make the certification, or testimony, that diligent search failed to disclose the record, report, statement, data compilation or entry is not inadmissible under the hearsay rule.

51.185. Records of religious organizations

Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization, are not inadmissible under the hearsay rule.

51.195. Marriage, baptismal and similar certificates

Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a member of the clergy, public official or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter, are not inadmissible under the hearsay rule.

51.205. Family records

Statements of fact contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts or tombstones, or the like, are not inadmissible under the hearsay rule.

Declarant Unavailable

51.315. General exception; other exceptions illustrative

1. A statement is not excluded by the hearsay rule if: (a) Its nature and the special circumstances under which it was made offer strong assurances of accuracy; and (b) The declarant is unavailable as a witness. 32

2. The provisions of NRS 51.325 to 51.355, inclusive, are illustrative and not restrictive of the exception provided by this section.

51.325. Former testimony

Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of another proceeding, is not inadmissible under the hearsay rule if: 1. The declarant is unavailable as a witness; and 2. If the proceeding was different, the party against whom the former testimony is offered was a party or is in privity with one of the former parties and the issues are substantially the same.

51.335. Statement under belief of impending death

A statement made by a declarant while believing that his or her death was imminent is not inadmissible under the hearsay rule if the declarant is unavailable as a witness.

51.345. Statement against interest

1. A statement which at the time of its making: (a) Was so far contrary to the pecuniary or proprietary interest of the declarant; (b) So far tended to subject the declarant to civil or criminal liability; (c) So far tended to render invalid a claim by the declarant against another; or (d) So far tended to make the declarant an object of hatred, ridicule or social disapproval, that a reasonable person in the position of the declarant would not have made the statement unless the declarant believed it to be true is not inadmissible under the hearsay rule if the declarant is unavailable as a witness. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused in a criminal case is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. 2. This section does not make admissible a statement or confession offered against the accused made by a codefendant or other person implicating both himself or herself and the accused.

Statement of Child Describing Sexual Conduct or Physical Abuse

51.385. Admissibility; notice of unavailability or inability of child to testify

1. In addition to any other provision for admissibility made by statute or rule of court, a statement made by a child under the age of 10 years describing any act of sexual conduct performed with or on 33 the child or any act of physical abuse of the child is admissible in a criminal proceeding regarding that act of sexual conduct or physical abuse if: (a) The court finds, in a hearing out of the presence of the jury, that the time, content and circumstances of the statement provide sufficient circumstantial guarantees of trustworthiness; and (b) The child testifies at the proceeding or is unavailable or unable to testify. 2. In determining the trustworthiness of a statement, the court shall consider, without limitation, whether: (a) The statement was spontaneous; (b) The child was subjected to repetitive questioning; (c) The child had a motive to fabricate; (d) The child used terminology unexpected of a child of similar age; and (e) The child was in a stable mental state. 3. If the child is unavailable or unable to testify, written notice must be given to the defendant at least 10 days before the trial of the prosecution's intention to offer the statement in evidence.

Chapter 52. Documentary and Other Physical Evidence

Authentication and Identification

52.015. Authentication or identification required

1. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence or other showing sufficient to support a finding that the matter in question is what its proponent claims. 2. The provisions of NRS 52.025 to 52.105, inclusive, are illustrative and not restrictive examples of authentication or identification which conform to the requirements of this section. 3. Every authentication or identification is rebuttable by evidence or other showing sufficient to support a contrary finding.

52.025. Testimony of witness with knowledge

The testimony of a witness is sufficient for authentication or identification if the witness has personal knowledge that a matter is what it is claimed to be.

52.035. Handwriting: Nonexpert opinion

Nonexpert opinion as to the genuineness of handwriting is sufficient for authentication or identification if it is based upon familiarity not acquired for purposes of the litigation.

52.045. Handwriting: Comparison by trier or expert witness

Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated is sufficient for authentication.

52.055. Handwriting: Distinctive characteristics

Appearance, contents, substance, internal patterns or other distinctive characteristics are sufficient for authentication when taken in conjunction with circumstances.

52.065. Identification by voice

A voice, whether heard firsthand or through mechanical or electronic transmission or recording, is sufficiently identified by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

52.075. Telephone calls

A telephone conversation is sufficiently authenticated by evidence that a call was made to the number supplied by the telephone company for the person in question if: 1. The call was to a place of business and the conversation related to business reasonably transacted over the telephone; or 2. Circumstances, including self-identification, show the person answering to be the one called.

52.085. Public records and reports

Evidence that: 1. A writing authorized by law to be recorded or filed and in fact recorded or filed in a public office; or 2. A purported public record, report, statement or data compilation, in any form, is from the public office where items of this nature are kept is sufficient to authenticate the writing, record, report, statement or compilation.

52.095. Ancient documents; compilations of data

Evidence that a document or data compilation, in any form: 1. Is in such condition as to create no suspicion concerning its authenticity; 2. Was in a place where it, if authentic, would likely be; and 3. Is at least 20 years old at the time it is offered, is sufficient to authenticate the document or compilation.

Presumptions of Authenticity

52.115. Foreign public documents

1. A document purporting to be executed or attested in a person’s official capacity by a person authorized by the laws of a foreign country to make the execution or attestation is presumed to be authentic if it is accompanied by a final certification as to the genuineness of the signature and official position: (a) Of the executing or attesting person; or (b) Of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. 2. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. 3. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of an official document the court may, for good cause shown, order that it be treated as presumptively authentic without final certification or permit it to be evidenced by an attested summary with or without final certification.

52.125. Certified copies of public records

1. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, is presumed to be authentic if it is certified as correct by the custodian or other person authorized to make the certification. 2. As used in subsection 1, the term “official record” shall include but not be limited to fingerprint classification cards kept by law enforcement agencies of the Federal Government, the State of Nevada or any other state.

52.145. Newspapers; periodicals

Printed materials purporting to be newspapers or periodicals are presumed to be authentic

Contents of Writings, Recordings and Photographs

52.195. “Duplicate” defined

“Duplicate” means a counterpart produced: 1. By the same impression as the original; 2. From the same matrix; 3. By means of photography, including enlargements and miniatures; 4. By mechanical or electronic rerecording, including a counterpart produced by an optical imaging system; 5. By chemical reproduction; or 6. By other equivalent technique designed to ensure an accurate reproduction of the original.

52.205. “Original” defined

1. An “original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. 2. An “original” of a photograph includes the negative or any print therefrom. 3. If data are stored in a computer or similar device, any printout or other output readable by sight, shown accurately to reflect the data, is an “original.”

52.235. Original required

To prove the content of a writing, recording or photograph, the original writing, recording or photograph is required, except as otherwise provided in this title.

52.245. Admissibility of duplicates

1. In addition to the situations governed by subsection 2, a duplicate is admissible to the same extent as an original unless: (a) A genuine question is raised as to the authenticity of the original; or (b) In the circumstances it would be unfair to admit the duplicate in lieu of the original.

2. Except as otherwise provided in NRS 52.247, a duplicate is admissible to the same extent as an original if the person or office having custody of the original was authorized to destroy the original after preparing a duplicate, and in fact did so.

52.252. Admissibility of copy or transcript of recordings of telephone calls made through system providing telephone number to be used in emergency

The content of recordings of telephone calls made through a system established to provide a telephone number to be used in an emergency, if otherwise admissible, may be proved by a copy or transcript of the recording which is authenticated by a custodian of the records of the system in a signed affidavit. The custodian must verify in the affidavit that the copy or transcript is a true and complete reproduction of the original recording and that the original recording was made at the time of the telephone call and in the course of a regularly conducted activity.

52.255. Admissibility of other evidence of contents

Except as otherwise provided in NRS 52.247, the original is not required, and other evidence of the contents of a writing, recording or photograph is admissible, if: 1. All originals are lost or have been destroyed, unless the loss or destruction resulted from the fraudulent act of the proponent; 2. No original can be obtained by any available judicial process or procedure; 3. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or 4. The writing, recording or photograph is not closely related to a controlling issue.

52.260. Record made in course of regularly conducted activity; affidavit required

1. The contents of a record made in the course of a regularly conducted activity in accordance with NRS 51.135, if otherwise admissible, may be proved by the original or a copy of the record which is authenticated by a custodian of the record or another qualified person in a signed affidavit. 2. The custodian of the record or other qualified person must verify in the affidavit that the record was made: (a) At or near the time of the act, event, condition, opinion or diagnosis concerning which the information was recorded, by or from information transmitted by a person with knowledge of the act or event; and (b) In the course of the regularly conducted activity. 3. The affidavit required by subsection 2 must be in substantially the following form:

CERTIFICATE OF CUSTODIAN OF RECORDS

State of Nevada } } ss. County of }

NOW COMES ______, who after first being duly sworn deposes and says: 1. That the deponent is the ______(position or title) ______of ______(name of employer) ______and in his or her capacity as ______(position or title) ______is a custodian of the records of ______(name of employer) ______. 2. That ______(name of employer) ______is licensed or registered to do business as a ______in the State of ______. 3. That on the ______day of the month of ______of the year ______, the deponent was served with a subpoena in connection with the above-entitled cause, calling for the production of records pertaining to

. 4. That the deponent has examined the original of those records and has made or caused to be made a true and exact copy of them and that the reproduction of them attached hereto is true and complete. 5. That the original of those records was made at or near the time of the act, event, condition, opinion or diagnosis recited therein by or from information transmitted by a person with knowledge, in the course of a regularly conducted activity of the deponent or ______(name of employer) ______

Subscribed and sworn to before me, a Notary Public, on this ______day of the month of ______of the year ______

Notary Public ______County, Nevada My appointment expires:

4. A party intending to offer an affidavit pursuant to this section must serve on the other parties a notice of the intent and make available for inspection or copying the records of the regularly conducted activity at least 10 days before the records are to be introduced at a hearing, unless the court shortens this time for good cause shown. 5. If during a trial or a proceeding for discovery, the authenticity of a record of a regularly conducted activity is reasonably questioned or if an interpretation of handwriting is in question, the court may order the personal attendance of the custodian of the record or other qualified person and may order that the original records be produced. 6. For the purposes of this section: (a) “Custodian of the records” means an employee or agent of an employer who has the care, custody and control of the records of the regularly conducted activity of the employer. (b) “Employer” means: (1) The State of Nevada, any state agency, county, city, town, school district or other unit of local government; (2) Any public or quasi-public corporation; or (3) Any other person, firm, corporation, partnership or association. (c) “Records” means memoranda, reports, records or compilations of data in any form which are kept in the course of an activity which is regularly conducted by an employer.

Disposal of Physical Evidence Before Criminal Trial

52.385. Property evidencing crime: Return to person entitled to possession; admissibility of photographs in lieu of property; disposal of property not returned

1. At any time after property of any person other than the one accused of the crime of which the property is evidence comes into the custody of a peace officer or law enforcement agency, the rightful owner of the property or a person entitled to possession of the property may request the prosecuting attorney to return the property to him or her. Upon receipt of such a request, the prosecuting attorney may, before the property is released, require the peace officer or law enforcement agency to take photographs of the property. Except as otherwise provided in subsection 3, the peace officer or law enforcement agency shall return the property to the person submitting the request within a reasonable time after the receipt of the request, but in no event later than 180 days after the receipt of the request. 2. In the absence of such a request, the prosecuting attorney may authorize the peace officer or law enforcement agency that has custody of the property to return the property to its owner or a person who is entitled to possession of the property.

3. If the prosecuting attorney to whom a request for the release of property is made determines that the property is required for use as evidence in a criminal proceeding, the prosecuting attorney may deny the request for the release of the property. 4. Photographs of property returned pursuant to the provisions of this section are admissible in evidence in lieu of the property in any criminal or civil proceeding if they are identified and authenticated in the proceeding by: (a) The rightful owner of the property or person entitled to possession of the property to whom the property was released; (b) The peace officer or representative of the law enforcement agency who released the property; or (c) A credible witness who has personal knowledge of the property, in accordance with the provisions of NRS 52.185 to 52.295, inclusive. 5. Any property subject to the provisions of this section which is not returned under the provisions of this section must be disposed of as provided in NRS 179.125 to 179.165, inclusive.

RECORDS OF CASINOS AND HOTELS

52.415. Authentication of copies

The content of records of a casino or hotel, if otherwise admissible, may be proved by a copy of the record which is authenticated by a custodian of the records of a casino or hotel in a signed affidavit. The custodian must verify in the affidavit that the copy is a true and complete reproduction of the original record of a hotel or casino and that the original record was made at or near the time of the act or event concerning which information was recorded, by or from information transmitted by a person with knowledge of the act or event, and in the course of a regularly conducted activity. The affidavit required by this section must be substantially in the form prescribed in subsection 3 of NRS 52.260. [. . .]

RECORDS OF BANKING AND FINANCIAL INSTITUTIONS

52.460. Authentication of copies; form and contents of affidavit

1. The content of records of a banking or financial institution, if otherwise admissible, may be proved by a copy of the record which is authenticated by a custodian of the records of a banking or financial institution in a signed affidavit. The custodian must verify in the affidavit that the copy is a true and complete reproduction of the original record and that the original record was made at or near the time of the act or event concerning which information was recorded, by or from information

41 transmitted by a person with knowledge of the act or event, and in the course of a regularly conducted activity. 2. The affidavit required by subsection 1 must be substantially in the form prescribed in subsection 3 of NRS 52.260. [. . .]

CHAPTER 53 AFFIDAVITS AND FOREIGN DEPOSITIONS

CHAPTER 54 CORROBORATIVE PROOF OF RESIDENCE

54.010. Requirement in civil cases

In all civil cases where the jurisdiction of the court depends upon the residence of one of the parties to the action, the court shall require corroboration of the evidence.

CHAPTER 55 FINDINGS OF PRESUMED DEATH

CHAPTER 56 TESTS OF BIOLOGICAL SPECIMENS

56.020. Determination of parentage or identity

1. Whenever it is relevant in a civil or criminal action to determine the parentage or identity of any person or corpse, the court, by order, may direct any party to the action and the person involved in the controversy to submit to one or more tests to obtain a biological specimen to determine the genetic markers of the specimen, to be made by qualified persons, under such restrictions and directions as the court deems proper. 2. Whenever a test is ordered and made, the results of the test may be received in evidence. The order for the tests also may direct that the testimony of the experts and of the persons so examined may be taken by deposition. The opinion of any expert concerning results of genetic tests may be weighted in accordance with evidence, if available, of the statistical probability of the alleged genetic relationship. The court shall determine how and by whom the costs of the examination must be paid.