USA Statutes : nevada
Title : Title 14 - PROCEDURE IN CRIMINAL CASES
Chapter : CHAPTER 174 - ARRAIGNMENT AND PREPARATION FOR TRIAL
1. Arraignment shall be conducted in open court and shall consist
of reading the indictment or information to the defendant or stating to
him the substance of the charge and calling on him to plead thereto. He
shall be given a copy of the indictment or information before he is
called upon to plead.
2. In Justice Court, before the trial commences, the complaint
must be distinctly read to the defendant before he is called upon to
plead.
(Added to NRS by 1967, 1414)
When the
defendant is arraigned, he must be informed that if the name by which he
is prosecuted is not his true name he must then declare his true name, or
be proceeded against by the name in the indictment, information or
complaint. If he gives no other name, the court may proceed accordingly;
but, if he alleges that another name is his true name, the court must
direct an entry thereof in the minutes of the arraignment, and the
subsequent proceedings on the information, indictment or complaint may be
had against him by that name, referring also to the name by which he was
first charged therein.
(Added to NRS by 1967, 1415)
PLEAS
1. A defendant may plead not guilty, guilty or, with the consent
of the court, nolo contendere. The court may refuse to accept a plea of
guilty.
2. If a plea of guilty is made in a written plea agreement, the
agreement must be in substantially the form prescribed in NRS 174.063
. If a plea of guilty is made orally,
the court shall not accept such a plea or a plea of nolo contendere
without first addressing the defendant personally and determining that
the plea is made voluntarily with understanding of the nature of the
charge and consequences of the plea.
3. With the consent of the court and the district attorney, a
defendant may enter a conditional plea of guilty or nolo contendere,
reserving in writing the right, on appeal from the judgment, to a review
of the adverse determination of any specified pretrial motion. A
defendant who prevails on appeal must be allowed to withdraw the plea.
4. The defendant may, in the alternative or in addition to any one
of the pleas permitted by subsection 1, plead not guilty by reason of
insanity. A plea of not guilty by reason of insanity must be entered not
less than 21 days before the date set for trial. A defendant who has not
so pleaded may offer the defense of insanity during trial upon good cause
shown. Under such a plea or defense, the burden of proof is upon the
defendant to establish his insanity by a preponderance of the evidence.
5. If a defendant refuses to plead or if the court refuses to
accept a plea of guilty or if a defendant corporation fails to appear,
the court shall enter a plea of not guilty.
6. A defendant may not enter a plea of guilty pursuant to a plea
bargain for an offense punishable as a felony for which:
(a) Probation is not allowed; or
(b) The maximum prison sentence is more than 10 years,
Ê unless the plea bargain is set forth in writing and signed by the
defendant, the defendant’s attorney, if he is represented by counsel, and
the prosecuting attorney.
(Added to NRS by 1967, 1415; A 1991, 301, 1062; 1995, 1534, 2450;
1997, 641; 2003, 1457 )
In
the Justice Court, if the defendant pleads guilty, the court may, before
entering such a plea or pronouncing judgment, examine witnesses to
ascertain the gravity of the offense committed. If it appears to the
court that a higher offense has been committed than the offense charged
in the complaint, the court may order the defendant to be committed or
admitted to bail or to answer any indictment that may be found against
him or any information which may be filed by the district attorney.
(Added to NRS by 1967, 1415; A 1995, 2450; 2003, 1458 )
1. If a prosecuting attorney enters into an agreement with a
defendant in which the defendant agrees to testify against another
defendant in exchange for a plea of guilty or nolo contendere to a lesser
charge or for a recommendation of a reduced sentence, the agreement:
(a) Is void if the defendant’s testimony is false.
(b) Must be in writing and include a statement that the agreement
is void if the defendant’s testimony is false.
2. A prosecuting attorney shall not enter into an agreement with a
defendant which:
(a) Limits the testimony of the defendant to a predetermined
formula.
(b) Is contingent on the testimony of the defendant contributing to
a specified conclusion.
(Added to NRS by 1991, 291; A 1995, 2450; 2003, 1458 )
1. If a plea of guilty is made in a written plea agreement, the
agreement must be substantially in the following form:
Case No. ...........................................................
Dept. No. ...........................................................
IN THE .................. JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA IN AND FOR THE COUNTY OF.............,
The State of Nevada
PLAINTIFF,
v.
(Name of defendant)
DEFENDANT.
GUILTY PLEA AGREEMENT
I hereby agree to plead guilty to: (List charges to which defendant
is pleading guilty), as more fully alleged in the charging document
attached hereto as Exhibit 1.
My decision to plead guilty is based upon the plea agreement in
this case which is as follows:
(State the terms of the agreement.)
CONSEQUENCES OF THE PLEA
I understand that by pleading guilty I admit the facts which
support all the elements of the offenses to which I now plead as set
forth in Exhibit 1.
I understand that as a consequence of my plea of guilty I may be
imprisoned for a period of not more than (maximum term of imprisonment)
and that I (may or will) be fined up to (maximum amount of fine). I
understand that the law requires me to pay an administrative assessment
fee.
I understand that, if appropriate, I will be ordered to make
restitution to the victim of the offenses to which I am pleading guilty
and to the victim of any related offense which is being dismissed or not
prosecuted pursuant to this agreement. I will also be ordered to
reimburse the State of Nevada for expenses related to my extradition, if
any.
I understand that I (am or am not) eligible for probation for the
offense to which I am pleading guilty. (I understand that, except as
otherwise provided by statute, the question of whether I receive
probation is in the discretion of the sentencing judge, or I understand
that I must serve a mandatory minimum term of (term of imprisonment) or
pay a minimum mandatory fine of (amount of fine) or serve a mandatory
minimum term (term of imprisonment) and pay a minimum mandatory fine of
(amount of fine).)
I understand that if more than one sentence of imprisonment is
imposed and I am eligible to serve the sentences concurrently, the
sentencing judge has the discretion to order the sentences served
concurrently or consecutively.
I understand that information regarding charges not filed,
dismissed charges or charges to be dismissed pursuant to this agreement
may be considered by the judge at sentencing.
I have not been promised or guaranteed any particular sentence by
anyone. I know that my sentence is to be determined by the court within
the limits prescribed by statute. I understand that if my attorney or the
State of Nevada or both recommend any specific punishment to the court,
the court is not obligated to accept the recommendation.
I understand that the Division of Parole and Probation of the
Department of Public Safety may or will prepare a report for the
sentencing judge before sentencing. This report will include matters
relevant to the issue of sentencing, including my criminal history. I
understand that this report may contain hearsay information regarding my
background and criminal history. My attorney (if represented by counsel)
and I will each have the opportunity to comment on the information
contained in the report at the time of sentencing.
WAIVER OF RIGHTS
By entering my plea of guilty, I understand that I have waived the
following rights and privileges:
1. The constitutional privilege against self-incrimination,
including the right to refuse to testify at trial, in which event the
prosecution would not be allowed to comment to the jury about my refusal
to testify.
2. The constitutional right to a speedy and public trial by an
impartial jury, free of excessive pretrial publicity prejudicial to the
defense, at which trial I would be entitled to the assistance of an
attorney, either appointed or retained. At trial, the State would bear
the burden of proving beyond a reasonable doubt each element of the
offense charged.
3. The constitutional right to confront and cross-examine any
witnesses who would testify against me.
4. The constitutional right to subpoena witnesses to testify on my
behalf.
5. The constitutional right to testify in my own defense.
6. The right to appeal the conviction, with the assistance of an
attorney, either appointed or retained, unless the appeal is based upon
reasonable constitutional, jurisdictional or other grounds that challenge
the legality of the proceedings and except as otherwise provided in
subsection 3 of NRS 174.035 .
VOLUNTARINESS OF PLEA
I have discussed the elements of all the original charges against
me with my attorney (if represented by counsel) and I understand the
nature of these charges against me.
I understand that the State would have to prove each element of the
charge against me at trial.
I have discussed with my attorney (if represented by counsel) any
possible defenses and circumstances which might be in my favor.
All of the foregoing elements, consequences, rights and waiver of
rights have been thoroughly explained to me by my attorney (if
represented by counsel).
I believe that pleading guilty and accepting this plea bargain is
in my best interest and that a trial would be contrary to my best
interest.
I am signing this agreement voluntarily, after consultation with my
attorney (if represented by counsel) and I am not acting under duress or
coercion or by virtue of any promises of leniency, except for those set
forth in this agreement.
I am not now under the influence of intoxicating liquor, a
controlled substance or other drug which would in any manner impair my
ability to comprehend or understand this agreement or the proceedings
surrounding my entry of this plea.
My attorney (if represented by counsel) has answered all my
questions regarding this guilty plea agreement and its consequences to my
satisfaction and I am satisfied with the services provided by my attorney.
Dated: This ............. day of the month of ………. of the year …….
...........................................................................
....
Defendant.
Agreed to on this ............ day of the month of ………. of the year …….
...........................................................................
....
Deputy District Attorney.
2. If the defendant is represented by counsel, the written plea
agreement must also include a certificate of counsel that is
substantially in the following form:
CERTIFICATE OF COUNSEL
I, the undersigned, as the attorney for the defendant named herein
and as an officer of the court hereby certify that:
1. I have fully explained to the defendant the allegations
contained in the charges to which guilty pleas are being entered.
2. I have advised the defendant of the penalties for each charge
and the restitution that the defendant may be ordered to pay.
3. All pleas of guilty offered by the defendant pursuant to this
agreement are consistent with all the facts known to me and are made with
my advice to the defendant and are in the best interest of the defendant.
4. To the best of my knowledge and belief, the defendant:
(a) Is competent and understands the charges and the consequences
of pleading guilty as provided in this agreement.
(b) Executed this agreement and will enter all guilty pleas
pursuant hereto voluntarily.
(c) Was not under the influence of intoxicating liquor, a
controlled substance or other drug at the time of the execution of this
agreement.
Dated: This ............. day of the month of ………. of the year …….
...........................................................................
....
Attorney for defendant.
(Added to NRS by 1995, 1531; A 2001, 36 , 2565 )
Except as otherwise provided in NRS 174.061 :
1. On a plea of guilty to an information or indictment accusing a
defendant of a crime divided into degrees, when consented to by the
prosecuting attorney in open court and approved by the court, the plea
may specify the degree, and in such event the defendant shall not be
punished for a higher degree than that specified in the plea.
2. On a plea of guilty to an indictment or information for murder
of the first degree, when consented to by the prosecuting attorney in
open court and approved by the court, the plea may specify a punishment
less than death. The specified punishment, or any lesser punishment, may
be imposed by a single judge.
(Added to NRS by 1967, 1416; A 1973, 1801; 1977, 1543; 1991, 291,
651; 1993, 828; 1995, 2451; 2003, 1458 )
PLEADINGS AND MOTIONS BEFORE TRIAL; DEFENSES AND OBJECTIONS
1. Pleadings in criminal proceedings are the indictment, the
information and, in Justice Court, the complaint, and the pleas of
guilty, not guilty and nolo contendere.
2. All other pleas, and demurrers and motions to quash are
abolished, and defenses and objections raised before trial which could
have been raised by one or more of them may be raised only by motion to
dismiss or to grant appropriate relief, as provided in this title.
(Added to NRS by 1967, 1416; A 1995, 2451; 2003, 1459 )
1. If a defendant was formerly acquitted on the ground of a
variance between the indictment, information or complaint and proof, or
the indictment, information, or complaint was dismissed upon an objection
to its form or substance, or in order to hold a defendant for a higher
offense without a judgment of acquittal, it is not an acquittal of the
same offense.
2. If a defendant is acquitted on the merits, he is acquitted of
the same offense, notwithstanding a defect in the form or substance in
the indictment, information, or complaint on which the trial was had.
3. When a defendant is convicted or acquitted, or has been once
placed in jeopardy upon an indictment, information or complaint, except
as otherwise provided in subsections 5 and 6, the conviction, acquittal
or jeopardy is a bar to another indictment, information or complaint for
the offense charged in the former, or for an attempt to commit the same,
or for an offense necessarily included therein, of which he might have
been convicted under that indictment, information or complaint.
4. In all cases where a jury is discharged or prevented from
giving a verdict by reason of an accident or other cause, except where
the defendant is discharged during the progress of the trial or after the
cause is submitted to them, the cause may be again tried.
5. The prosecuting attorney, in a case that he has initiated, may
voluntarily dismiss a complaint:
(a) Before a preliminary hearing if the crime with which the
defendant is charged is a felony or gross misdemeanor; or
(b) Before trial if the crime with which the defendant is charged
is a misdemeanor,
Ê without prejudice to the right to file another complaint, unless the
State of Nevada has previously filed a complaint against the defendant
which was dismissed at the request of the prosecuting attorney. After the
dismissal, the court shall order the defendant released from custody or,
if he is released on bail, exonerate the obligors and release any bail.
6. If a prosecuting attorney files a subsequent complaint after a
complaint concerning the same matter has been filed and dismissed against
the defendant:
(a) The case must be assigned to the same judge to whom the initial
complaint was assigned; and
(b) A court shall not issue a warrant for the arrest of a defendant
who was released from custody pursuant to subsection 5 or require a
defendant whose bail has been exonerated pursuant to subsection 5 to give
bail unless the defendant does not appear in court in response to a
properly issued summons in connection with the complaint.
7. The prosecuting attorney, in a case that he has initiated, may
voluntarily dismiss an indictment or information before the actual arrest
or incarceration of the defendant without prejudice to the right to bring
another indictment or information. After the arrest or incarceration of
the defendant, the prosecuting attorney may voluntarily dismiss an
indictment or information without prejudice to the right to bring another
indictment or information only upon good cause shown to the court and
upon written findings and a court order to that effect.
(Added to NRS by 1967, 1416; A 1971, 596; 1997, 2391)
Any defense or objection which is capable of determination without the
trial of the general issue may be raised before trial by motion.
(Added to NRS by 1967, 1416)
1. A defendant who is charged with murder of the first degree in a
case in which the death penalty is sought may, not less than 10 days
before the date set for trial, file a motion to declare that he is
mentally retarded.
2. If a defendant files a motion pursuant to this section, the
court must:
(a) Stay the proceedings pending a decision on the issue of mental
retardation; and
(b) Hold a hearing within a reasonable time before the trial to
determine whether the defendant is mentally retarded.
3. The court shall order the defendant to:
(a) Provide evidence which demonstrates that the defendant is
mentally retarded not less than 30 days before the date set for a hearing
conducted pursuant to subsection 2; and
(b) Undergo an examination by an expert selected by the prosecution
on the issue of whether the defendant is mentally retarded at least 15
days before the date set for a hearing pursuant to subsection 2.
4. For the purpose of the hearing conducted pursuant to subsection
2, there is no privilege for any information or evidence provided to the
prosecution or obtained by the prosecution pursuant to subsection 3.
5. At a hearing conducted pursuant to subsection 2:
(a) The court must allow the defendant and the prosecution to
present evidence and conduct a cross-examination of any witness
concerning whether the defendant is mentally retarded; and
(b) The defendant has the burden of proving by a preponderance of
the evidence that he is mentally retarded.
6. If the court determines based on the evidence presented at a
hearing conducted pursuant to subsection 2 that the defendant is mentally
retarded, the court must make such a finding in the record and strike the
notice of intent to seek the death penalty. Such a finding may be
appealed to the Supreme Court pursuant to NRS 177.015 .
7. For the purposes of this section, “mentally retarded” means
significant subaverage general intellectual functioning which exists
concurrently with deficits in adaptive behavior and manifested during the
developmental period.
(Added to NRS by 2003, 766 )
1. Defenses and objections based on defects in the institution of
the prosecution, other than insufficiency of the evidence to warrant an
indictment, or in the indictment, information or complaint, other than
that it fails to show jurisdiction in the court or to charge an offense,
may be raised only by motion before trial. The motion shall include all
such defenses and objections then available to the defendant.
2. Failure to present any such defense or objection as herein
provided constitutes a waiver thereof, but the court for cause shown may
grant relief from the waiver.
3. Lack of jurisdiction or the failure of the indictment,
information or complaint to charge an offense shall be noticed by the
court at any time during the pendency of the proceeding.
(Added to NRS by 1967, 1416)
The motion shall be made
before the plea is entered, but the court may permit it to be made within
a reasonable time thereafter.
(Added to NRS by 1967, 1417)
1. All motions in a criminal prosecution to suppress evidence, for
a transcript of former proceedings, for a preliminary hearing, for
severance of joint defendants, for withdrawal of counsel, and all other
motions which by their nature, if granted, delay or postpone the time of
trial must be made before trial, unless an opportunity to make such a
motion before trial did not exist or the moving party was not aware of
the grounds for the motion before trial.
2. In any judicial district in which a single judge is provided:
(a) All motions subject to the provisions of subsection 1 must be
made in writing, with not less than 10 days’ notice to the opposite party
unless good cause is shown to the court at the time of trial why the
motion could not have been made in writing upon the required notice.
(b) The court may, by written order, shorten the notice required to
be given to the opposite party.
3. In any judicial district in which two or more judges are
provided:
(a) All motions subject to the provisions of subsection 1 must be
made in writing not less than 15 days before the date set for trial,
except that if less than 15 days intervene between entry of a plea and
the date set for trial, such a motion may be made within 5 days after
entry of the plea.
(b) The court may, if a defendant waives hearing on the motion or
for other good cause shown, permit the motion to be made at a later date.
4. Grounds for making such a motion after the time provided or at
the trial must be shown by affidavit.
(Added to NRS by 1967, 1417; A 1981, 1955)
1. A motion before trial raising defenses or objections shall be
determined before trial unless the court orders that it be deferred for
determination at the trial of the general issue.
2. An issue of fact shall be tried by a jury if a jury trial is
required under the Constitution of the United States or of the State of
Nevada or by statute.
3. All other issues of fact shall be determined by the court with
or without a jury or on affidavits or in such other manner as the court
may direct.
(Added to NRS by 1967, 1417)
1. If a motion is determined adversely to the defendant he shall
be permitted to plead if he had not previously pleaded. A plea previously
entered shall stand.
2. If the court grants a motion based on a defect in the
institution of the prosecution or in the indictment, information or
complaint, it may also order that the defendant be held in custody or
that his bail be continued for a specified time pending the filing of a
new indictment, information or complaint.
3. Nothing in this section shall affect the provisions of any
statute relating to periods of limitations.
(Added to NRS by 1967, 1417)
JOINDER AND RELIEF THEREFROM
The
court may order two or more indictments or informations or both to be
tried together if the offenses, and the defendants if there is more than
one, could have been joined in a single indictment or information. The
procedure shall be the same as if the prosecution were under such single
indictment or information.
(Added to NRS by 1967, 1418)
1. If it appears that a defendant or the State of Nevada is
prejudiced by a joinder of offenses or of defendants in an indictment or
information, or by such joinder for trial together, the court may order
an election or separate trials of counts, grant a severance of defendants
or provide whatever other relief justice requires.
2. In ruling on a motion by a defendant for severance the court
may order the district attorney to deliver to the court for inspection in
chambers any statements or confessions made by the defendants which the
State intends to introduce in evidence at the trial.
(Added to NRS by 1967, 1418)
DEPOSITIONS
The provisions of NRS 174.171 to 174.225 ,
inclusive, do not apply to a deposition taken pursuant to NRS 174.227
or used pursuant to NRS 174.228 , or both.
(Added to NRS by 1985, 1423; A 1993, 252)
1. If it appears that a prospective witness may be unable to
attend or prevented from attending a trial or hearing, that his testimony
is material and that it is necessary to take his deposition in order to
prevent a failure of justice, the court at any time after the filing of
an indictment, information or complaint may upon motion of a defendant or
of the State and notice to the parties order that his testimony be taken
by deposition and that any designated books, papers, documents or
tangible objects, not privileged, be produced at the same time and place.
If the deposition is taken upon motion of the State, the court shall
order that it be taken under such conditions as will afford to each
defendant the opportunity to confront the witnesses against him.
2. If a witness is committed for failure to give bail to appear to
testify at a trial or hearing, the court on written motion of the witness
and upon notice to the parties may direct that his deposition be taken.
After the deposition has been subscribed the court may discharge the
witness.
3. This section does not apply to the prosecutor, or to an
accomplice in the commission of the offense charged.
(Added to NRS by 1967, 1418)
The party at whose instance a
deposition is to be taken shall give to every other party reasonable
written notice of the time and place for taking the deposition. The
notice shall state the name and address of each person to be examined. On
motion of a party upon whom the notice is served, the court for cause
shown may extend or shorten the time.
(Added to NRS by 1967, 1418)
If a
defendant is without counsel the court shall advise him of his right and
assign counsel to represent him unless the defendant elects to proceed
without counsel or is able to obtain counsel. If it appears that a
defendant at whose instance a deposition is to be taken cannot bear the
expense thereof, the court may direct that the expenses of the court
reporter and of travel and subsistence of the defendant’s attorney for
attendance at the examination must be paid as provided in NRS 7.135
.
(Added to NRS by 1967, 1418; A 1987, 1301)
A deposition shall be taken in the manner
provided in civil actions. The court at the request of a defendant may
direct that a deposition be taken on written interrogatories in the
manner provided in civil actions.
(Added to NRS by 1967, 1418)
1. At the trial or upon any hearing, a part or all of a
deposition, so far as otherwise admissible under the rules of evidence,
may be used if it appears:
(a) That the witness is dead;
(b) That the witness is out of the State of Nevada, unless it
appears that the absence of the witness was procured by the party
offering the deposition;
(c) That the witness cannot attend or testify because of sickness
or infirmity;
(d) That the witness has become of unsound mind; or
(e) That the party offering the deposition could not procure the
attendance of the witness by subpoena.
2. Any deposition may also be used by any party to contradict or
impeach the testimony of the deponent as a witness.
3. If only a part of a deposition is offered in evidence by a
party, an adverse party may require him to offer all of it which is
relevant to the part offered and any party may offer other parts.
(Added to NRS by 1967, 1418; A 1989, 588)
Objections to receiving
in evidence a deposition or part thereof may be made as provided in civil
actions.
(Added to NRS by 1967, 1419)
VIDEOTAPED DEPOSITIONS AND TESTIMONY
1. A court on its own motion or on the motion of the district
attorney may, for good cause shown, order the taking of a videotaped
deposition of:
(a) A victim of sexual abuse as that term is defined in NRS
432B.100 ; or
(b) A prospective witness in any criminal prosecution if he is less
than 14 years of age.
Ê The court may specify the time and place for taking the deposition and
the persons who may be present when it is taken.
2. The district attorney shall give every other party reasonable
written notice of the time and place for taking the deposition. The
notice must include the name of the person to be examined. On the motion
of a party upon whom the notice is served, the court:
(a) For good cause shown may release the address of the person to
be examined; and
(b) For cause shown may extend or shorten the time.
3. If at the time such a deposition is taken, the district
attorney anticipates using the deposition at trial, the court shall so
state in the order for the deposition and the accused must be given the
opportunity to cross-examine the deponent in the same manner as permitted
at trial.
4. Except as limited by NRS 174.228 , the court may allow the videotaped deposition
to be used at any proceeding in addition to or in lieu of the direct
testimony of the deponent. It may also be used by any party to contradict
or impeach the testimony of the deponent as a witness. If only a part of
the deposition is offered in evidence by a party, an adverse party may
require him to offer all of it which is relevant to the part offered and
any party may offer other parts.
(Added to NRS by 1985, 1423; A 1993, 252)
A court may allow a
videotaped deposition to be used instead of the deponent’s testimony at
trial only if:
1. In the case of a victim of sexual abuse, as that term is
defined in NRS 432B.100 :
(a) Before the deposition is taken, a hearing is held by a justice
of the peace or district judge who finds that:
(1) The use of the videotaped deposition in lieu of
testimony at trial is necessary to protect the welfare of the victim; and
(2) The presence of the accused at trial would inflict
trauma, more than minimal in degree, upon the victim; and
(b) At the time a party seeks to use the deposition, the court
determines that the conditions set forth in subparagraphs (1) and (2) of
paragraph (a) continue to exist. The court may hold a hearing before the
use of the deposition to make its determination.
2. In all cases:
(a) A justice of the peace or district judge presides over the
taking of the deposition;
(b) The accused is able to hear and see the proceedings;
(c) The accused is represented by counsel who, if physically
separated from the accused, is able to communicate orally with him by
electronic means;
(d) The accused is given an adequate opportunity to cross-examine
the deponent subject to the protection of the deponent deemed necessary
by the court; and
(e) The deponent testifies under oath.
(Added to NRS by 1993, 251)
If a prospective witness who is
scheduled to testify before a grand jury or at a preliminary hearing is
less than 14 years of age, the court shall, upon the motion of the
district attorney, and may, upon its own motion, order the child’s
testimony to be videotaped at the time it is given.
(Added to NRS by 1985, 1424)
227 , 174.228 and
174.229 . The provisions of NRS 174.227
, 174.228 and 174.229
do not preclude:
1. The submission of videotaped depositions or testimony which are
otherwise admissible as evidence in court.
2. A victim or prospective witness from testifying at a proceeding
without the use of his videotaped deposition or testimony.
(Added to NRS by 1985, 1424; A 1993, 252)
DISCOVERY AND INSPECTION
1. In addition to the written notice required by NRS 174.234
, a defendant in a criminal case who
intends to offer evidence of an alibi in his defense shall, not less than
10 days before trial or at such other time as the court may direct, file
and serve upon the prosecuting attorney a written notice of his intention
to claim the alibi. The notice must contain specific information as to
the place at which the defendant claims to have been at the time of the
alleged offense and, as particularly as are known to defendant or his
attorney, the names and last known addresses of the witnesses by whom he
proposes to establish the alibi.
2. Not less than 10 days after receipt of the defendant’s list of
witnesses, or at such other time as the court may direct, the prosecuting
attorney shall file and serve upon the defendant the names and last known
addresses, as particularly as are known to the prosecuting attorney, of
the witnesses the State proposes to offer in rebuttal to discredit the
defendant’s alibi at the trial of the cause.
3. Both the defendant and the prosecuting attorney have a
continuing duty to disclose promptly the names and last known addresses
of additional witnesses which come to the attention of either party after
filing their respective lists.
4. If a defendant fails to file and serve a copy of the notice
required by this section, the court may exclude evidence offered by the
defendant to prove an alibi, except the testimony of the defendant
himself. If the notice is given by a defendant, the court may exclude the
testimony of any witness offered by the defendant to prove an alibi if
the name and last known address of the witness, as particularly as are
known to the defendant or his attorney, are not stated in the notice.
5. If the prosecuting attorney fails to file and serve a copy on
the defendant of a list of witnesses as required by this section, the
court may exclude evidence offered by the State in rebuttal to the
defendant’s evidence of alibi. If the list is filed and served by the
prosecuting attorney, the court may exclude the testimony of any witness
offered by the prosecuting attorney for the purpose of rebutting the
evidence of alibi if the name and last known address of the witness, as
particularly as are known to the prosecuting attorney, are not stated in
the notice. For good cause shown the court may waive the requirements of
this section.
(Added to NRS by 1969, 350; A 1971, 283; 1991, 301; 1995, 263;
1997, 2365)—(Substituted in revision for NRS 174.087)
1. Except as otherwise provided in this section, not less than 5
judicial days before trial or at such other time as the court directs:
(a) If the defendant will be tried for one or more offenses that
are punishable as a gross misdemeanor or felony:
(1) The defendant shall file and serve upon the prosecuting
attorney a written notice containing the names and last known addresses
of all witnesses the defendant intends to call during the case in chief
of the defendant; and
(2) The prosecuting attorney shall file and serve upon the
defendant a written notice containing the names and last known addresses
of all witnesses the prosecuting attorney intends to call during the case
in chief of the State.
(b) If the defendant will not be tried for any offenses that are
punishable as a gross misdemeanor or felony:
(1) The defendant shall file and serve upon the prosecuting
attorney a written notice containing the name and last known address of
any witness the defendant intends to call during the case in chief of the
defendant whose name and last known address have not otherwise been
provided to the prosecuting attorney pursuant to NRS 174.245 ; and
(2) The prosecuting attorney shall file and serve upon the
defendant a written notice containing the name and last known address or
place of employment of any witness the prosecuting attorney intends to
call during the case in chief of the State whose name and last known
address or place of employment have not otherwise been provided to the
defendant pursuant to NRS 171.1965 or
174.235 .
2. If the defendant will be tried for one or more offenses that
are punishable as a gross misdemeanor or felony and a witness that a
party intends to call during the case in chief of the State or during the
case in chief of the defendant is expected to offer testimony as an
expert witness, the party who intends to call that witness shall file and
serve upon the opposing party, not less than 21 days before trial or at
such other time as the court directs, a written notice containing:
(a) A brief statement regarding the subject matter on which the
expert witness is expected to testify and the substance of his testimony;
(b) A copy of the curriculum vitae of the expert witness; and
(c) A copy of all reports made by or at the direction of the expert
witness.
3. After complying with the provisions of subsections 1 and 2,
each party has a continuing duty to file and serve upon the opposing
party:
(a) Written notice of the names and last known addresses of any
additional witnesses that the party intends to call during the case in
chief of the State or during the case in chief of the defendant. A party
shall file and serve written notice pursuant to this paragraph as soon as
practicable after the party determines that he intends to call an
additional witness during the case in chief of the State or during the
case in chief of the defendant. The court shall prohibit an additional
witness from testifying if the court determines that the party acted in
bad faith by not including the witness on the written notice required
pursuant to subsection 1.
(b) Any information relating to an expert witness that is required
to be disclosed pursuant to subsection 2. A party shall provide
information pursuant to this paragraph as soon as practicable after the
party obtains that information. The court shall prohibit the party from
introducing that information in evidence or shall prohibit the expert
witness from testifying if the court determines that the party acted in
bad faith by not timely disclosing that information pursuant to
subsection 2.
4. Each party has a continuing duty to file and serve upon the
opposing party any change in the last known address, or, if applicable,
last known place of employment, of any witness that the party intends to
call during the case in chief of the State or during the case in chief of
the defendant as soon as practicable after the party obtains that
information.
5. Upon a motion by either party or the witness, the court shall
prohibit disclosure to the other party of the address of the witness if
the court determines that disclosure of the address would create a
substantial threat to the witness of bodily harm, intimidation, coercion
or harassment. If the court prohibits disclosure of an address pursuant
to this subsection, the court shall, upon the request of a party, provide
the party or his attorney or agent with an opportunity to interview the
witness in an environment that provides for protection of the witness.
6. In addition to the sanctions and protective orders otherwise
provided in subsections 3 and 5, the court may upon the request of a
party:
(a) Order that disclosure pursuant to this section be denied,
restricted or deferred pursuant to the provisions of NRS 174.275 ; or
(b) Impose sanctions pursuant to subsection 2 of NRS 174.295 for the failure to comply with the provisions
of this section.
7. A party is not entitled, pursuant to the provisions of this
section, to the disclosure of the name or address of a witness or any
other type of item or information that is privileged or protected from
disclosure or inspection pursuant to the Constitution or laws of this
state or the Constitution of the United States.
(Added to NRS by 1995, 263; A 1997, 2366; 1999, 152 )
1. Except as otherwise provided in NRS 174.233 to 174.295 ,
inclusive, at the request of a defendant, the prosecuting attorney shall
permit the defendant to inspect and to copy or photograph any:
(a) Written or recorded statements or confessions made by the
defendant, or any written or recorded statements made by a witness the
prosecuting attorney intends to call during the case in chief of the
State, or copies thereof, within the possession, custody or control of
the State, the existence of which is known, or by the exercise of due
diligence may become known, to the prosecuting attorney;
(b) Results or reports of physical or mental examinations,
scientific tests or scientific experiments made in connection with the
particular case, or copies thereof, within the possession, custody or
control of the State, the existence of which is known, or by the exercise
of due diligence may become known, to the prosecuting attorney; and
(c) Books, papers, documents, tangible objects, or copies thereof,
which the prosecuting attorney intends to introduce during the case in
chief of the State and which are within the possession, custody or
control of the State, the existence of which is known, or by the exercise
of due diligence may become known, to the prosecuting attorney.
2. The defendant is not entitled, pursuant to the provisions of
this section, to the discovery or inspection of:
(a) An internal report, document or memorandum that is prepared by
or on behalf of the prosecuting attorney in connection with the
investigation or prosecution of the case.
(b) A statement, report, book, paper, document, tangible object or
any other type of item or information that is privileged or protected
from disclosure or inspection pursuant to the Constitution or laws of
this state or the Constitution of the United States.
3. The provisions of this section are not intended to affect any
obligation placed upon the prosecuting attorney by the Constitution of
this state or the Constitution of the United States to disclose
exculpatory evidence to the defendant.
(Added to NRS by 1967, 1419; A 1995, 264; 1997, 2367)
1. Except as otherwise provided in NRS 174.233 to 174.295 ,
inclusive, at the request of the prosecuting attorney, the defendant
shall permit the prosecuting attorney to inspect and to copy or
photograph any:
(a) Written or recorded statements made by a witness the defendant
intends to call during the case in chief of the defendant, or copies
thereof, within the possession, custody or control of the defendant, the
existence of which is known, or by the exercise of due diligence may
become known, to the defendant;
(b) Results or reports of physical or mental examinations,
scientific tests or scientific experiments that the defendant intends to
introduce in evidence during the case in chief of the defendant, or
copies thereof, within the possession, custody or control of the
defendant, the existence of which is known, or by the exercise of due
diligence may become known, to the defendant; and
(c) Books, papers, documents or tangible objects that the defendant
intends to introduce in evidence during the case in chief of the
defendant, or copies thereof, within the possession, custody or control
of the defendant, the existence of which is known, or by the exercise of
due diligence may become known, to the defendant.
2. The prosecuting attorney is not entitled, pursuant to the
provisions of this section, to the discovery or inspection of:
(a) An internal report, document or memorandum that is prepared by
or on behalf of the defendant or his attorney in connection with the
investigation or defense of the case.
(b) A statement, report, book, paper, document, tangible object or
any other type of item or information that is privileged or protected
from disclosure or inspection pursuant to the Constitution or laws of
this state or the Constitution of the United States.
(Added to NRS by 1967, 1419; A 1969, 350; 1995, 265; 1997, 2368)
Upon a sufficient showing, the
court may at any time order that discovery or inspection pursuant to NRS
174.234 to 174.295 , inclusive, be denied, restricted or deferred,
or make such other order as is appropriate. Upon motion by the defendant
or prosecuting attorney, the court may permit the defendant or
prosecuting attorney to make such showing, in whole or in part, in the
form of a written statement to be inspected by the court in chambers. If
the court enters an order granting relief following a showing in
chambers, the entire text of the written statement must be sealed and
preserved in the records of the court to be made available to the
appellate court in the event of an appeal.
(Added to NRS by 1967, 1420; A 1995, 265; 1997, 2369)
1. A request made pursuant to NRS 174.235 or 174.245
may be made only within 30 days after arraignment or at such reasonable
later time as the court may permit. A subsequent request may be made only
upon a showing of cause why the request would be in the interest of
justice.
2. A party shall comply with a request made pursuant to NRS
174.235 or 174.245 not less than 30 days before trial or at such
reasonable later time as the court may permit.
(Added to NRS by 1967, 1420; A 1995, 265; 1997, 2369)
1. If, after complying with the provisions of NRS 174.235 to 174.295 ,
inclusive, and before or during trial, a party discovers additional
material previously requested which is subject to discovery or inspection
under those sections, he shall promptly notify the other party or his
attorney or the court of the existence of the additional material.
2. If at any time during the course of the proceedings it is
brought to the attention of the court that a party has failed to comply
with the provisions of NRS 174.234 to
174.295 , inclusive, the court may order
the party to permit the discovery or inspection of materials not
previously disclosed, grant a continuance, or prohibit the party from
introducing in evidence the material not disclosed, or it may enter such
other order as it deems just under the circumstances.
(Added to NRS by 1967, 1420; A 1995, 265; 1997, 2370)
SUBPOENA
Except as provided in NRS 172.195 and
174.315 :
1. A subpoena must be issued by the clerk under the seal of the
court. It must state the name of the court and the title, if any, of the
proceeding, and must command each person to whom it is directed to attend
and give testimony at the time and place specified therein. The clerk
shall issue a subpoena, signed and sealed but otherwise in blank, to a
party requesting it, who shall fill in the blanks before it is served.
2. A subpoena must be issued by a justice of the peace in a
proceeding before him under the seal of the court.
(Added to NRS by 1967, 1420; A 1967, 1367; 1987, 124)
1. The prosecuting attorney may issue subpoenas subscribed by him
for witnesses within the State, in support of the prosecution or whom the
grand jury may direct to appear before it, upon any investigation pending
before the grand jury.
2. The prosecuting attorney or the attorney for the defendant may
issue subpoenas subscribed by the issuer for:
(a) Witnesses within the State to appear before the court at which
an indictment, information or criminal complaint is to be tried.
(b) Witnesses already subpoenaed who are required to reappear in
any Justice Court at any time the court is to reconvene in the same case
within 60 days, and the time may be extended beyond 60 days upon good
cause being shown for its extension.
3. Witnesses, whether within or outside of the State, may accept
delivery of a subpoena in lieu of service, by a written or oral promise
to appear given by the witness. Any person who accepts an oral promise to
appear shall:
(a) Identify himself to the witness by name and occupation;
(b) Make a written notation of the date when the oral promise to
appear was given and the information given by the person making the oral
promise to appear identifying him as the witness subpoenaed; and
(c) Execute a certificate of service containing the information set
forth in paragraphs (a) and (b).
4. The prosecuting attorney shall orally inform any witness
subpoenaed as provided in subsection 1 of the general nature of the grand
jury’s inquiry before the witness testifies. Such a statement must be
included in the transcript of the proceedings.
(Added to NRS by 1967, 1368; A 1979, 130; 1985, 573; 1989, 685;
1991, 302; 1993, 118)
1. When it is necessary to have a person imprisoned in the state
prison brought before any district court, or a person imprisoned in the
county jail brought before a district court sitting in another county, 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 when it is
made. The order can only be made upon motion of a party upon affidavit
showing the nature of the action or proceeding, the testimony expected
from the witness, and its materiality.
2. When a person required as a witness before a district court is
imprisoned, the judge thereof may order the sheriff to bring the prisoner
before the court at the expense of the State or, in his discretion, at
the expense of the defendant.
(Added to NRS by 1967, 1420)
1. Except as otherwise provided in NRS 172.139 , a subpoena may also command the person to
whom it is directed to produce the books, papers, documents or other
objects designated therein.
2. The court on motion made promptly may quash or modify the
subpoena if compliance would be unreasonable or oppressive.
3. The court may direct that books, papers, documents or objects
designated in the subpoena be produced before the court at a time before
the trial or before the time when they are to be offered in evidence and
may, upon their production, permit the books, papers, documents or
objects or portions thereof to be inspected by the parties and their
attorneys.
(Added to NRS by 1967, 1421; A 1985, 1030)
1. Except as otherwise provided in NRS 174.315 and subsection 2, a subpoena may be served by
a peace officer or by any other person who is not a party and who is not
less than 18 years of age. Service of a subpoena must be made by
delivering a copy thereof to the person named.
2. Except as otherwise provided in NRS 174.315 , a subpoena to attend a misdemeanor trial may
be served by mailing the subpoena to the person to be served by
registered or certified mail, return receipt requested from that person,
in a sealed postpaid envelope, addressed to the person’s last known
address, not less than 10 days before the trial which the subpoena
commands him to attend.
3. If a subpoena is served by mail, a certificate of the mailing
must be filed with the court within 2 days after the subpoena is mailed.
(Added to NRS by 1967, 1421; A 1977, 638; 1989, 685)
A subpoena requiring the attendance
of a witness at a hearing or trial may be served at any place within the
State of Nevada.
(Added to NRS by 1967, 1421)
1. An order to take a deposition authorizes the issuance by the
clerk of the court for the county in which the deposition is to be taken
of subpoenas for the persons named or described therein.
2. A resident of this state may be required to attend an
examination only in the county wherein he resides or is employed or
transacts his business in person. A nonresident of this state may be
required to attend only in the county where he is served with a subpoena
or within 40 miles from the place of service or at such other place as is
fixed by the court.
(Added to NRS by 1967, 1421)
Failure by any person without adequate
excuse to obey a subpoena of a court or a prosecuting attorney served
upon him or, in the case of a subpoena issued by a prosecuting attorney,
delivered to him and accepted, shall be deemed a contempt of the court
from which the subpoena issued or, in the case of a subpoena issued by a
prosecuting attorney, of the court in which the investigation is pending
or the indictment, information or complaint is to be tried.
(Added to NRS by 1967, 1421; A 1979, 130; 1995, 1082)
ATTENDANCE OF WITNESSES OUTSIDE STATE (UNIFORM ACT)
NRS 174.395 to 174.445 ,
inclusive, may be cited as the Uniform Act To Secure the Attendance of
Witnesses From Without a State in Criminal Proceedings.
(Added to NRS by 1967, 1421)
As used in NRS 174.395 to 174.445 ,
inclusive:
1. “State” shall include any territory of the United States and
the District of Columbia.
2. “Summons” shall include a subpoena, order or other notice
requiring the appearance of a witness.
3. “Witness” shall include a person whose testimony is desired in
any proceeding or investigation by a grand jury or in a criminal action,
prosecution or proceeding.
(Added to NRS by 1967, 1421)
1. If a judge of a court of record in any state which by its laws
has made provision for commanding persons within that state to attend and
testify in this State certifies under the seal of such court that there
is a criminal prosecution pending in such court, or that a grand jury
investigation has commenced or is about to commence, that a person being
within this State is a material witness in such prosecution, or grand
jury investigation, and that his presence will be required for a
specified number of days, upon presentation of such certificate to any
judge of a court of record in the county in which such person is, such
judge shall fix a time and place for a hearing, and shall make an order
directing the witness to appear at a time and place certain for the
hearing.
2. If at a hearing the judge determines that the witness is
material and necessary, that it will not cause undue hardship to the
witness to be compelled to attend and testify in the prosecution or a
grand jury investigation in the other state, and that the laws of the
state in which the prosecution is pending, or grand jury investigation
has commenced or is about to commence (and of any other state through
which the witness may be required to pass by ordinary course of travel),
will give to him protection from arrest and the service of civil and
criminal process, he shall issue a summons, with a copy of the
certificate attached, directing the witness to attend and testify in the
court where the prosecution is pending, or where a grand jury
investigation has commenced or is about to commence at a time and place
specified in the summons. In any such hearing the certificate shall be
prima facie evidence of all the facts stated therein.
3. If the certificate recommends that the witness be taken into
immediate custody and delivered to an officer of the requesting state to
assure his attendance in the requesting state, such judge may, in lieu of
notification of the hearing, direct that such witness be forthwith
brought before him for hearings; and the judge at the hearing being
satisfied of the desirability of such custody and delivery, for which
determination the certificate shall be prima facie proof of such
desirability, may, in lieu of issuing subpoena or summons, order that the
witness be forthwith taken into custody and delivered to an officer of
the requesting state.
4. If the witness, who is summoned as above provided, after being
paid or tendered by some properly authorized person the amount required
by NRS 50.225 for his subsistence and
travel expenses, fails without good cause to attend and testify as
directed in the summons, he shall be punished in the manner provided for
the punishment of any witness who disobeys a summons issued from a court
of record in this State.
(Added to NRS by 1967, 1421; A 1987, 550)
1. If a person in any state, which by its laws has made provision
for commanding persons within its borders to attend and testify in
criminal prosecutions, or grand jury investigations commenced or about to
commence, in this State, is a material witness in a prosecution pending
in a court of record in this State, or in a grand jury investigation
which has commenced or is about to commence, a judge of such a court may
issue a certificate under the seal of the court stating these facts and
specifying the number of days the witness will be required. The
certificate may include a recommendation that the witness be taken into
immediate custody and delivered to an officer of this State to ensure his
attendance in this State. This certificate must be presented to a judge
of a court of record in the county in which the witness is found.
2. If the witness is summoned to attend and testify in this State
he is entitled to receive the amount required by NRS 50.225 for his subsistence and travel expenses. A
witness who has appeared in accordance with the provisions of the summons
shall not be required to remain within this State a longer period of time
than the period mentioned in the certificate unless otherwise ordered by
the court. If such witness, after coming into this State, fails without
good cause to attend and testify as directed in the summons, he shall be
punished in the manner provided for the punishment of any witness who
disobeys a summons issued from a court of record in this State.
(Added to NRS by 1967, 1422; A 1987, 551)
1. If a person comes into this state in obedience to a summons
directing him to attend and testify in this state he shall not while in
this state pursuant to such summons be subject to arrest or the service
of process, civil or criminal, in connection with matters which arose
before his entrance into this state under the summons.
2. If a person passes through this state while going to another
state in obedience to a summons to attend and testify in that state or
while returning therefrom, he shall not while so passing through this
state be subject to arrest or the service of process, civil or criminal,
in connection with matters which arose before his entrance into this
state under the summons.
(Added to NRS by 1967, 1423)
NRS 174.395 to 174.445 ,
inclusive, shall be so interpreted and construed as to effectuate their
general purpose to make uniform the law of the states which enact them.
(Added to NRS by 1967, 1423)
REMOVAL OF ACTION BEFORE TRIAL
1. A criminal action prosecuted by indictment, information or
complaint may be removed from the court in which it is pending, on
application of the defendant or state, on the ground that a fair and
impartial trial cannot be had in the county where the indictment,
information or complaint is pending.
2. An application for removal of a criminal action shall not be
granted by the court until after the voir dire examination has been
conducted and it is apparent to the court that the selection of a fair
and impartial jury cannot be had in the county where the indictment,
information or complaint is pending.
3. An order in a criminal action changing or refusing to change
the place of trial is appealable only on appeal from the final judgment.
(Added to NRS by 1967, 1423; A 1969, 378; 1981, 1707)
1. The application for removal must be made in open court, and in
writing, verified by the affidavit of the defendant or district attorney,
and a copy of the affidavit must be served on the adverse party, at least
1 day prior to the hearing of the application.
2. The application may be supported or opposed by other affidavits
or other evidence, or other witnesses may be examined in open court.
3. Whenever the affidavit of the defendant shows that he cannot
safely appear in person to make such application, because popular
prejudice is so great as to endanger his personal safety, and such
statement is sustained by other testimony, such application may be made
by his attorney and must be heard and determined in the absence of the
defendant, notwithstanding the charge then pending against him be a
felony, and he has not, at the time of such application, been arrested or
given bail, or been arraigned, or pleaded to the indictment or
information.
(Added to NRS by 1967, 1423)
If the
court is satisfied that the representations of the applicant are true, an
order must be made transferring the action to the district court of some
convenient county free from a like objection.
(Added to NRS by 1967, 1423)
The
order of removal must be entered on the minutes, and the clerk must
immediately make out and transmit to the court to which the action is
removed a certified copy of the order of removal, record, pleadings, and
proceedings in the action, including the undertakings for the appearance
of the defendant and of the witnesses.
(Added to NRS by 1967, 1423)
If the defendant is in custody, the order must direct his removal and he
must be forthwith removed by the sheriff of the county where he is
imprisoned, to the custody of the sheriff of the county to which the
action is removed.
(Added to NRS by 1967, 1423)
The court to which the action is
removed must proceed to trial and judgment therein as if the action had
been commenced in such court. If it is necessary to have any of the
original pleadings or other papers before such court, the court from
which the action is removed must, at any time, on the application of the
district attorney or the defendant, order such papers or pleadings to be
transmitted by the clerk, a certified copy thereof being retained.
(Added to NRS by 1967, 1424)
TIME OF TRIAL
The State, upon demand, has the right to a
trial of the defendant within 60 days after his arraignment. The court
may postpone the trial if:
1. It finds that more time is needed by the defendant to prepare
his defense; or
2. The number of other cases pending in the court prohibits the
acceptance of the case for trial within that time.
(Added to NRS by 1983, 1670)
1. When an action is called for trial, or at any time previous
thereto, the court may, upon sufficient cause shown by either party by
affidavit, direct the trial to be postponed to another day. In all cases
where a continuance is granted upon the application of either party the
court may require, as a condition of granting such continuance, that the
party applying therefor consent to taking, forthwith, or at any time to
be fixed by the court, of the deposition of any witness summoned by the
opposite party whose deposition has not previously been taken.
2. The court also may require all witnesses to enter into
undertakings in such sum as the court may order, with or without
sureties, to appear and testify on the day to which the case may be
continued, but any witness who is unable to procure sureties for his
attendance may be discharged on his own recognizance, upon giving his
deposition in the manner prescribed in NRS 174.175 and 174.205 .
3. If the trial involves acts committed against a child less than
16 years of age or involving acts witnessed by a child less than 16 years
of age, the court may consider any adverse effect a continuance or other
postponement might have upon the mental or emotional health or well-being
of the child. The court may deny a continuance or other postponement if
the delay will adversely affect the mental or emotional health or
well-being of the child.
(Added to NRS by 1967, 1424; A 1989, 588; 1995, 400)
If the trial involves acts committed against a
child less than 16 years of age or involving acts witnessed by a child
less than 16 years of age, the prosecuting attorney shall request the
court, in its discretion, to give preference in setting a date for the
trial of the defendant. In making a ruling, the court may consider the
effect a delay in the commencement of the trial might have on the mental
or emotional health or well-being of the child.
(Added to NRS by 1995, 400; A 1997, 511)
