2005 Nevada Revised Statutes - Chapter 174 — Arraignment and Preparation for Trial
CHAPTER 174 - ARRAIGNMENT AND PREPARATIONFOR TRIAL
ARRAIGNMENT
NRS 174.015 Conductof arraignment.
NRS 174.025 Proceedingsrespecting name of defendant; entry of true name in minutes; subsequentproceedings in true name.
PLEAS
NRS 174.035 Typesof pleas; procedure for entering plea.
NRS 174.055 Proceedingson plea of guilty in Justice Court.
NRS 174.061 Pleabargaining: General requirements; prohibited agreements.
NRS 174.063 Writtenplea agreement for plea of guilty: Form; content.
NRS 174.065 Whenplea may specify degree of crime or punishment.
PLEADINGS AND MOTIONS BEFORE TRIAL; DEFENSES AND OBJECTIONS
NRS 174.075 Pleadingsand motions.
NRS 174.085 Proceedingsnot constituting acquittal; effect of acquittal on merits; proceedingsconstituting bar to another prosecution; retrial after discharge of jury;effect of voluntary dismissal.
NRS 174.095 Defensesand objections which may be raised by motion.
NRS 174.098 Motionto declare that defendant is mentally retarded: When authorized; procedure.
NRS 174.105 Defensesand objections which must be raised by motion.
NRS 174.115 Timeof making motion.
NRS 174.125 Certainmotions required to be made before trial.
NRS 174.135 Hearingon motion.
NRS 174.145 Effectof determination.
JOINDER AND RELIEF THEREFROM
NRS 174.155 Trialtogether of indictments or informations.
NRS 174.165 Relieffrom prejudicial joinder.
DEPOSITIONS
NRS 174.171 Applicability.
NRS 174.175 Whentaken.
NRS 174.185 Noticeof taking.
NRS 174.195 Defendantscounsel and payment of expenses.
NRS 174.205 Howtaken.
NRS 174.215 Useof deposition.
NRS 174.225 Objectionsto admissibility.
VIDEOTAPED DEPOSITIONS AND TESTIMONY
NRS 174.227 Videotapeddepositions: Order of court; notice to parties; cross-examination; use.
NRS 174.228 Videotapeddepositions: Use.
NRS 174.229 Videotapedtestimony.
NRS 174.231 Effectof NRS 174.227,
DISCOVERY AND INSPECTION
NRS 174.233 Disclosureby defendant of intent to claim alibi; defendant to disclose list of alibiwitnesses; prosecuting attorney to disclose list of rebuttal witnesses;continuing duty to disclose; sanctions.
NRS 174.234 Reciprocaldisclosure of lists of witnesses and information relating to expert testimony;continuing duty to disclose; protective orders; sanctions.
NRS 174.235 Disclosureby prosecuting attorney of evidence relating to prosecution; limitations.
NRS 174.245 Disclosureby defendant of evidence relating to defense; limitations.
NRS 174.275 Protectiveorders.
NRS 174.285 Timelimits.
NRS 174.295 Continuingduty to disclose; failure to comply; sanctions.
SUBPOENA
NRS 174.305 Subpoenafor attendance of witnesses; form; issuance.
NRS 174.315 Issuanceof subpoena by prosecuting attorney or attorney for defendant; promise toappear; informing witness of general nature of grand jurys inquiry.
NRS 174.325 Productionof prisoner as witness.
NRS 174.335 Subpoenafor production of documentary evidence and of objects.
NRS 174.345 Serviceof subpoena.
NRS 174.365 Placeof service.
NRS 174.375 Subpoenafor taking depositions; place of examination.
NRS 174.385 Contempt.
ATTENDANCE OF WITNESSES OUTSIDE STATE (UNIFORM ACT)
NRS 174.395 Shorttitle.
NRS 174.405 Definitions.
NRS 174.415 Summoningwitness in this State to testify in another state.
NRS 174.425 Witnessfrom another state summoned to testify in this State.
NRS 174.435 Exemptionfrom arrest and service of process.
NRS 174.445 Uniformityof interpretation.
REMOVAL OF ACTION BEFORE TRIAL
NRS 174.455 Groundfor removal; application not to be granted until after voir dire examination;appeal of order changing or refusing to change place of trial.
NRS 174.464 Applicationfor removal: Making and service; hearing and determination in absence ofdefendant.
NRS 174.475 Ordertransferring action: When to be made.
NRS 174.485 Entryof order of removal; transmittal of papers.
NRS 174.495 Proceedingson removal when defendant is in custody.
NRS 174.505 Authorityof court to which action is removed; transmission of original papers.
TIME OF TRIAL
NRS 174.511 Rightof State to trial within 60 days after arraignment; exceptions.
NRS 174.515 Postponement:When and how ordered; court may require depositions of and undertakings bywitnesses; court may consider adverse effect upon child who is victim orwitness.
NRS 174.519 Requestfor preference in setting date for trial where child is victim or witness;court may consider effect on child of delay in commencement of trial.
_________
ARRAIGNMENT
NRS
1. Arraignment shall be conducted in open court andshall consist of reading the indictment or information to the defendant orstating 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 calledupon to plead.
2. In Justice Court, before the trial commences, thecomplaint must be distinctly read to the defendant before he is called upon toplead.
(Added to NRS by 1967, 1414)
NRS
(Added to NRS by 1967, 1415)
PLEAS
NRS
1. A defendant may plead not guilty, guilty or, withthe consent of the court, nolo contendere. The court may refuse to accept aplea 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
3. With the consent of the court and the districtattorney, a defendant may enter a conditional plea of guilty or nolocontendere, reserving in writing the right, on appeal from the judgment, to areview of the adverse determination of any specified pretrial motion. Adefendant who prevails on appeal must be allowed to withdraw the plea.
4. Thedefendant may, in the alternative or in addition to any one of the pleaspermitted by subsection 1, plead not guilty by reason of insanity. A plea ofnot guilty by reason of insanity must be entered not less than 21 days beforethe date set for trial. A defendant who has not so pleaded may offer thedefense of insanity during trial upon good cause shown. Under such a plea ordefense, the burden of proof is upon the defendant to establish his insanity bya preponderance of the evidence.
5. If a defendant refuses to plead or if the courtrefuses to accept a plea of guilty or if a defendant corporation fails toappear, the court shall enter a plea of not guilty.
6. A defendant may not enter a plea of guilty pursuantto 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,
unless theplea bargain is set forth in writing and signed by the defendant, the defendantsattorney, 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)
NRS
(Added to NRS by 1967, 1415; A 1995, 2450;
NRS
1. If a prosecuting attorney enters into an agreementwith a defendant in which the defendant agrees to testify against anotherdefendant in exchange for a plea of guilty or nolo contendere to a lessercharge or for a recommendation of a reduced sentence, the agreement:
(a) Is void if the defendants testimony is false.
(b) Must be in writing and include a statement that theagreement is void if the defendants testimony is false.
2. A prosecuting attorney shall not enter into anagreement with a defendant which:
(a) Limits the testimony of the defendant to apredetermined formula.
(b) Is contingent on the testimony of the defendantcontributing to a specified conclusion.
(Added to NRS by 1991, 291; A 1995, 2450;
NRS
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 THECOUNTY OF.............,
The State of Nevada
PLAINTIFF,
v.
(Name of defendant)
DEFENDANT.
GUILTY PLEA AGREEMENT
I hereby agree to plead guilty to: (List charges towhich defendant is pleading guilty), as more fully alleged in the chargingdocument attached hereto as Exhibit 1.
My decision to plead guilty is based upon the pleaagreement in this case which is as follows:
(State the terms of the agreement.)
CONSEQUENCES OF THEPLEA
I understand that by pleading guilty I admit the factswhich support all the elements of the offenses to which I now plead as setforth in Exhibit 1.
I understand that as a consequence of my plea of guiltyI may be imprisoned for a period of not more than (maximum term ofimprisonment) 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 tomake restitution to the victim of the offenses to which I am pleading guiltyand to the victim of any related offense which is being dismissed or notprosecuted pursuant to this agreement. I will also be ordered to reimburse theState of Nevada for expenses related to my extradition, if any.
I understand that I (am or am not) eligible forprobation for the offense to which I am pleading guilty. (I understand that, exceptas otherwise provided by statute, the question of whether I receive probationis in the discretion of the sentencing judge, or I understand that I must servea mandatory minimum term of (term of imprisonment) or pay a minimum mandatoryfine of (amount of fine) or serve a mandatory minimum term (term ofimprisonment) and pay a minimum mandatory fine of (amount of fine).)
I understand that if more than one sentence ofimprisonment is imposed and I am eligible to serve the sentences concurrently,the sentencing judge has the discretion to order the sentences servedconcurrently or consecutively.
I understand that information regarding charges notfiled, dismissed charges or charges to be dismissed pursuant to this agreementmay be considered by the judge at sentencing.
I have not been promised or guaranteed any particularsentence by anyone. I know that my sentence is to be determined by the courtwithin the limits prescribed by statute. I understand that if my attorney orthe State of Nevada or both recommend any specific punishment to the court, thecourt is not obligated to accept the recommendation.
I understand that the Division of Parole and Probationof the Department of Public Safety may or will prepare a report for thesentencing judge before sentencing. This report will include matters relevantto the issue of sentencing, including my criminal history. I understand thatthis report may contain hearsay information regarding my background andcriminal history. My attorney (if represented by counsel) and I will each havethe opportunity to comment on the information contained in the report at thetime of sentencing.
WAIVER OF RIGHTS
By entering my plea of guilty, I understand that I havewaived the following rights and privileges:
1. The constitutional privilege againstself-incrimination, including the right to refuse to testify at trial, in whichevent the prosecution would not be allowed to comment to the jury about myrefusal to testify.
2. The constitutional right to a speedy and public trialby an impartial jury, free of excessive pretrial publicity prejudicial to thedefense, 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 ofproving beyond a reasonable doubt each element of the offense charged.
3. The constitutional right to confront andcross-examine any witnesses who would testify against me.
4. The constitutional right to subpoena witnesses totestify on my behalf.
5. The constitutional right to testify in my owndefense.
6. The right to appeal the conviction, with theassistance of an attorney, either appointed or retained, unless the appeal isbased upon reasonable constitutional, jurisdictional or other grounds thatchallenge the legality of the proceedings and except as otherwise provided insubsection 3 of NRS 174.035.
VOLUNTARINESS OF PLEA
I have discussed the elements of all the originalcharges against me with my attorney (if represented by counsel) and Iunderstand the nature of these charges against me.
I understand that the State would have to prove eachelement of the charge against me at trial.
I have discussed with my attorney (if represented bycounsel) any possible defenses and circumstances which might be in my favor.
All of the foregoing elements, consequences, rights andwaiver of rights have been thoroughly explained to me by my attorney (ifrepresented by counsel).
I believe that pleading guilty and accepting this pleabargain is in my best interest and that a trial would be contrary to my bestinterest.
I am signing this agreement voluntarily, afterconsultation with my attorney (if represented by counsel) and I am not actingunder duress or coercion or by virtue of any promises of leniency, except forthose set forth in this agreement.
I am not now under the influence of intoxicatingliquor, a controlled substance or other drug which would in any manner impairmy ability to comprehend or understand this agreement or the proceedingssurrounding my entry of this plea.
My attorney (if represented by counsel) has answeredall my questions regarding this guilty plea agreement and its consequences tomy satisfaction and I am satisfied with the services provided by my attorney.
Dated: This ............. day of the month of . ofthe year .
...............................................................................
Defendant.
Agreed to on this ............ day of the month of . ofthe year .
...............................................................................
DeputyDistrict Attorney.
2. If the defendant is represented by counsel, thewritten plea agreement must also include a certificate of counsel that issubstantially in the following form:
CERTIFICATE OF COUNSEL
I, the undersigned, as the attorney for the defendantnamed herein and as an officer of the court hereby certify that:
1. I have fully explained to the defendant theallegations contained in the charges to which guilty pleas are being entered.
2. I have advised the defendant of the penalties foreach charge and the restitution that the defendant may be ordered to pay.
3. All pleas of guilty offered by the defendantpursuant to this agreement are consistent with all the facts known to me andare made with my advice to the defendant and are in the best interest of thedefendant.
4. To the best of my knowledge and belief, thedefendant:
(a) Is competent and understands the charges and theconsequences of pleading guilty as provided in this agreement.
(b) Executed this agreement and will enter all guiltypleas 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 thisagreement.
Dated: This ............. day of the month of . ofthe year .
...............................................................................
Attorneyfor defendant.
(Added to NRS by 1995, 1531; A
NRS
1. On a plea of guilty to an information or indictmentaccusing a defendant of a crime divided into degrees, when consented to by theprosecuting attorney in open court and approved by the court, the plea mayspecify the degree, and in such event the defendant shall not be punished for ahigher degree than that specified in the plea.
2. On a plea of guilty to an indictment or informationfor murder of the first degree, when consented to by the prosecuting attorneyin open court and approved by the court, the plea may specify a punishment lessthan death. The specified punishment, or any lesser punishment, may be imposedby a single judge.
(Added to NRS by 1967, 1416; A 1973, 1801; 1977,1543; 1991, 291, 651; 1993, 828; 1995, 2451;
PLEADINGS AND MOTIONS BEFORE TRIAL; DEFENSES AND OBJECTIONS
NRS
1. Pleadings in criminal proceedings are theindictment, the information and, in Justice Court, the complaint, and the pleasof guilty, not guilty and nolo contendere.
2. All other pleas, and demurrers and motions to quashare abolished, and defenses and objections raised before trial which could havebeen raised by one or more of them may be raised only by motion to dismiss orto grant appropriate relief, as provided in this title.
(Added to NRS by 1967, 1416; A 1995, 2451;
NRS
1. If a defendant was formerly acquitted on the groundof a variance between the indictment, information or complaint and proof, orthe indictment, information, or complaint was dismissed upon an objection toits form or substance, or in order to hold a defendant for a higher offensewithout a judgment of acquittal, it is not an acquittal of the same offense.
2. If a defendant is acquitted on the merits, he isacquitted of the same offense, notwithstanding a defect in the form orsubstance in the indictment, information, or complaint on which the trial washad.
3. When a defendant is convicted or acquitted, or hasbeen once placed in jeopardy upon an indictment, information or complaint,except as otherwise provided in subsections 5 and 6, the conviction, acquittalor jeopardy is a bar to another indictment, information or complaint for theoffense charged in the former, or for an attempt to commit the same, or for anoffense necessarily included therein, of which he might have been convictedunder that indictment, information or complaint.
4. In all cases where a jury is discharged orprevented from giving a verdict by reason of an accident or other cause, exceptwhere the defendant is discharged during the progress of the trial or after thecause is submitted to them, the cause may be again tried.
5. The prosecuting attorney, in a case that he hasinitiated, may voluntarily dismiss a complaint:
(a) Before a preliminary hearing if the crime withwhich the defendant is charged is a felony or gross misdemeanor; or
(b) Before trial if the crime with which the defendantis charged is a misdemeanor,
withoutprejudice to the right to file another complaint, unless the State of Nevadahas previously filed a complaint against the defendant which was dismissed atthe request of the prosecuting attorney. After the dismissal, the court shallorder 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 subsequentcomplaint after a complaint concerning the same matter has been filed anddismissed against the defendant:
(a) The case must be assigned to the same judge to whomthe initial complaint was assigned; and
(b) A court shall not issue a warrant for the arrest ofa defendant who was released from custody pursuant to subsection 5 or require adefendant whose bail has been exonerated pursuant to subsection 5 to give bailunless the defendant does not appear in court in response to a properly issuedsummons in connection with the complaint.
7. The prosecuting attorney, in a case that he hasinitiated, may voluntarily dismiss an indictment or information before theactual arrest or incarceration of the defendant without prejudice to the rightto bring another indictment or information. After the arrest or incarcerationof the defendant, the prosecuting attorney may voluntarily dismiss anindictment or information without prejudice to the right to bring anotherindictment or information only upon good cause shown to the court and uponwritten findings and a court order to that effect.
(Added to NRS by 1967, 1416; A 1971, 596; 1997, 2391)
NRS
(Added to NRS by 1967, 1416)
NRS
1. A defendant who is charged with murder of the firstdegree in a case in which the death penalty is sought may, not less than 10days before the date set for trial, file a motion to declare that he ismentally retarded.
2. If a defendant files a motion pursuant to thissection, the court must:
(a) Stay the proceedings pending a decision on theissue of mental retardation; and
(b) Hold a hearing within a reasonable time before thetrial to determine whether the defendant is mentally retarded.
3. The court shall order the defendant to:
(a) Provide evidence which demonstrates that thedefendant is mentally retarded not less than 30 days before the date set for ahearing conducted pursuant to subsection 2; and
(b) Undergo an examination by an expert selected by theprosecution on the issue of whether the defendant is mentally retarded at least15 days before the date set for a hearing pursuant to subsection 2.
4. For the purpose of the hearing conducted pursuantto subsection 2, there is no privilege for any information or evidence providedto 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 theprosecution to present evidence and conduct a cross-examination of any witnessconcerning whether the defendant is mentally retarded; and
(b) The defendant has the burden of proving by apreponderance of the evidence that he is mentally retarded.
6. If the court determines based on the evidencepresented at a hearing conducted pursuant to subsection 2 that the defendant ismentally retarded, the court must make such a finding in the record and strikethe notice of intent to seek the death penalty. Such a finding may be appealedto the Supreme Court pursuant to NRS 177.015.
7. For the purposes of this section, mentallyretarded means significant subaverage general intellectual functioning whichexists concurrently with deficits in adaptive behavior and manifested duringthe developmental period.
(Added to NRS by
NRS
1. Defenses and objections based on defects in theinstitution of the prosecution, other than insufficiency of the evidence towarrant an indictment, or in the indictment, information or complaint, otherthan 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 suchdefenses and objections then available to the defendant.
2. Failure to present any such defense or objection asherein provided constitutes a waiver thereof, but the court for cause shown maygrant relief from the waiver.
3. Lack of jurisdiction or the failure of theindictment, information or complaint to charge an offense shall be noticed bythe court at any time during the pendency of the proceeding.
(Added to NRS by 1967, 1416)
NRS
(Added to NRS by 1967, 1417)
NRS
1. All motions in a criminal prosecution to suppressevidence, for a transcript of former proceedings, for a preliminary hearing,for severance of joint defendants, for withdrawal of counsel, and all othermotions which by their nature, if granted, delay or postpone the time of trialmust be made before trial, unless an opportunity to make such a motion beforetrial did not exist or the moving party was not aware of the grounds for themotion before trial.
2. In any judicial district in which a single judge isprovided:
(a) All motions subject to the provisions of subsection1 must be made in writing, with not less than 10 days notice to the oppositeparty unless good cause is shown to the court at the time of trial why themotion could not have been made in writing upon the required notice.
(b) The court may, by written order, shorten the noticerequired to be given to the opposite party.
3. In any judicial district in which two or morejudges are provided:
(a) All motions subject to the provisions of subsection1 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 dateset 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 themotion or for other good cause shown, permit the motion to be made at a laterdate.
4. Grounds for making such a motion after the timeprovided 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 orobjections shall be determined before trial unless the court orders that it bedeferred for determination at the trial of the general issue.
2. An issue of fact shall be tried by a jury if a jurytrial is required under the Constitution of the United States or of the Stateof Nevada or by statute.
3. All other issues of fact shall be determined by thecourt with or without a jury or on affidavits or in such other manner as thecourt may direct.
(Added to NRS by 1967, 1417)
NRS
1. If a motion is determined adversely to thedefendant he shall be permitted to plead if he had not previously pleaded. Aplea previously entered shall stand.
2. If the court grants a motion based on a defect inthe institution of the prosecution or in the indictment, information orcomplaint, it may also order that the defendant be held in custody or that hisbail be continued for a specified time pending the filing of a new indictment,information or complaint.
3. Nothing in this section shall affect the provisionsof any statute relating to periods of limitations.
(Added to NRS by 1967, 1417)
JOINDER AND RELIEF THEREFROM
NRS
(Added to NRS by 1967, 1418)
NRS
1. If it appears that a defendant or the State ofNevada is prejudiced by a joinder of offenses or of defendants in an indictmentor information, or by such joinder for trial together, the court may order anelection or separate trials of counts, grant a severance of defendants orprovide whatever other relief justice requires.
2. In ruling on a motion by a defendant for severancethe court may order the district attorney to deliver to the court forinspection in chambers any statements or confessions made by the defendantswhich the State intends to introduce in evidence at the trial.
(Added to NRS by 1967, 1418)
DEPOSITIONS
NRS
(Added to NRS by 1985, 1423; A 1993, 252)
1. If it appears that a prospective witness may beunable to attend or prevented from attending a trial or hearing, that histestimony is material and that it is necessary to take his deposition in orderto prevent a failure of justice, the court at any time after the filing of anindictment, information or complaint may upon motion of a defendant or of theState and notice to the parties order that his testimony be taken by depositionand that any designated books, papers, documents or tangible objects, notprivileged, be produced at the same time and place. If the deposition is takenupon motion of the State, the court shall order that it be taken under suchconditions as will afford to each defendant the opportunity to confront thewitnesses against him.
2. If a witness is committed for failure to give bailto appear to testify at a trial or hearing, the court on written motion of thewitness 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, orto an accomplice in the commission of the offense charged.
(Added to NRS by 1967, 1418)
NRS
(Added to NRS by 1967, 1418)
NRS
(Added to NRS by 1967, 1418; A 1987, 1301)
NRS
(Added to NRS by 1967, 1418)
1. At the trial or upon any hearing, a part or all ofa deposition, so far as otherwise admissible under the rules of evidence, maybe 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 partyoffering the deposition;
(c) That the witness cannot attend or testify becauseof sickness or infirmity;
(d) That the witness has become of unsound mind; or
(e) That the party offering the deposition could notprocure the attendance of the witness by subpoena.
2. Any deposition may also be used by any party tocontradict or impeach the testimony of the deponent as a witness.
3. If only a part of a deposition is offered inevidence by a party, an adverse party may require him to offer all of it whichis relevant to the part offered and any party may offer other parts.
(Added to NRS by 1967, 1418; A 1989, 588)
NRS
(Added to NRS by 1967, 1419)
VIDEOTAPED DEPOSITIONS AND TESTIMONY
NRS
1. A court on its own motion or on the motion of thedistrict attorney may, for good cause shown, order the taking of a videotapeddeposition of:
(a) A victim of sexual abuse as that term is defined inNRS 432B.100; or
(b) A prospective witness in any criminal prosecutionif he is less than 14 years of age.
The courtmay specify the time and place for taking the deposition and the persons whomay be present when it is taken.
2. The district attorney shall give every other partyreasonable written notice of the time and place for taking the deposition. Thenotice must include the name of the person to be examined. On the motion of aparty upon whom the notice is served, the court:
(a) For good cause shown may release the address of theperson to be examined; and
(b) For cause shown may extend or shorten the time.
3. If at the time such a deposition is taken, thedistrict attorney anticipates using the deposition at trial, the court shall sostate in the order for the deposition and the accused must be given theopportunity to cross-examine the deponent in the same manner as permitted attrial.
4. Except as limited by
(Added to NRS by 1985, 1423; A 1993, 252)
NRS
1. In the case of a victim of sexual abuse, as thatterm is defined in NRS 432B.100:
(a) Before the deposition is taken, a hearing is heldby a justice of the peace or district judge who finds that:
(1) The use of the videotaped deposition in lieuof testimony at trial is necessary to protect the welfare of the victim; and
(2) The presence of the accused at trial wouldinflict 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 useof the deposition to make its determination.
2. In all cases:
(a) A justice of the peace or district judge presidesover the taking of the deposition;
(b) The accused is able to hear and see theproceedings;
(c) The accused is represented by counsel who, ifphysically separated from the accused, is able to communicate orally with himby electronic means;
(d) The accused is given an adequate opportunity tocross-examine the deponent subject to the protection of the deponent deemednecessary by the court; and
(e) The deponent testifies under oath.
(Added to NRS by 1993, 251)
NRS
(Added to NRS by 1985, 1424)
NRS
1. The submission of videotaped depositions ortestimony which are otherwise admissible as evidence in court.
2. A victim or prospective witness from testifying ata proceeding without the use of his videotaped deposition or testimony.
(Added to NRS by 1985, 1424; A 1993, 252)
DISCOVERY AND INSPECTION
NRS
1. In addition to the written notice requiredby NRS 174.234, a defendant in acriminal 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 maydirect, file and serve upon the prosecuting attorney a written notice of hisintention to claim the alibi. The notice must contain specific information asto the place at which the defendant claims to have been at the time of thealleged 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 toestablish the alibi.
2. Not less than 10 days after receipt of thedefendants 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 andlast known addresses, as particularly as are known to the prosecuting attorney,of the witnesses the State proposes to offer in rebuttal to discredit thedefendants alibi at the trial of the cause.
3. Both the defendant and the prosecuting attorneyhave a continuing duty to disclose promptly the names and last known addressesof additional witnesses which come to the attention of either party afterfiling their respective lists.
4. If a defendant fails to file and serve a copy ofthe notice required by this section, the court may exclude evidence offered bythe 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 ofany witness offered by the defendant to prove an alibi if the name and lastknown address of the witness, as particularly as are known to the defendant orhis attorney, are not stated in the notice.
5. If the prosecuting attorney fails to file and servea copy on the defendant of a list of witnesses as required by this section, thecourt may exclude evidence offered by the State in rebuttal to the defendantsevidence 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 prosecutingattorney for the purpose of rebutting the evidence of alibi if the name andlast known address of the witness, as particularly as are known to theprosecuting attorney, are not stated in the notice. For good cause shown thecourt 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)
NRS
1. Except asotherwise provided in this section, not less than 5 judicial days before trialor at such other time as the court directs:
(a) If thedefendant will be tried for one or more offenses that are punishable as a grossmisdemeanor or felony:
(1) Thedefendant shall file and serve upon the prosecuting attorney a written noticecontaining the names and last known addresses of all witnesses the defendantintends to call during the case in chief of the defendant; and
(2) Theprosecuting attorney shall file and serve upon the defendant a written noticecontaining the names and last known addresses of all witnesses the prosecutingattorney intends to call during the case in chief of the State.
(b) If thedefendant will not be tried for any offenses that are punishable as a grossmisdemeanor or felony:
(1) Thedefendant shall file and serve upon the prosecuting attorney a written noticecontaining the name and last known address of any witness the defendant intendsto call during the case in chief of the defendant whose name and last knownaddress have not otherwise been provided to the prosecuting attorney pursuantto NRS 174.245; and
(2) Theprosecuting attorney shall file and serve upon the defendant a written noticecontaining the name and last known address or place of employment of anywitness the prosecuting attorney intends to call during the case in chief ofthe State whose name and last known address or place of employment have nototherwise been provided to the defendant pursuant to
2. If thedefendant will be tried for one or more offenses that are punishable as a grossmisdemeanor or felony and a witness that a party intends to call during thecase in chief of the State or during the case in chief of the defendant isexpected to offer testimony as an expert witness, the party who intends to callthat witness shall file and serve upon the opposing party, not less than 21days before trial or at such other time as the court directs, a written noticecontaining:
(a) A briefstatement regarding the subject matter on which the expert witness is expectedto testify and the substance of his testimony;
(b) A copy ofthe curriculum vitae of the expert witness; and
(c) A copy ofall reports made by or at the direction of the expert witness.
3. Aftercomplying with the provisions of subsections 1 and 2, each party has acontinuing duty to file and serve upon the opposing party:
(a) Writtennotice of the names and last known addresses of any additional witnesses thatthe party intends to call during the case in chief of the State or during thecase in chief of the defendant. A party shall file and serve written noticepursuant to this paragraph as soon as practicable after the party determinesthat he intends to call an additional witness during the case in chief of theState or during the case in chief of the defendant. The court shall prohibit anadditional witness from testifying if the court determines that the party actedin bad faith by not including the witness on the written notice requiredpursuant to subsection 1.
(b) Anyinformation relating to an expert witness that is required to be disclosedpursuant to subsection 2. A party shall provide information pursuant to thisparagraph as soon as practicable after the party obtains that information. Thecourt shall prohibit the party from introducing that information in evidence orshall prohibit the expert witness from testifying if the court determines thatthe party acted in bad faith by not timely disclosing that information pursuantto subsection 2.
4. Each partyhas a continuing duty to file and serve upon the opposing party any change inthe last known address, or, if applicable, last known place of employment, ofany witness that the party intends to call during the case in chief of theState or during the case in chief of the defendant as soon as practicable afterthe party obtains that information.
5. Upon amotion by either party or the witness, the court shall prohibit disclosure tothe other party of the address of the witness if the court determines that disclosureof the address would create a substantial threat to the witness of bodily harm,intimidation, coercion or harassment. If the court prohibits disclosure of anaddress pursuant to this subsection, the court shall, upon the request of aparty, provide the party or his attorney or agent with an opportunity tointerview the witness in an environment that provides for protection of thewitness.
6. In additionto the sanctions and protective orders otherwise provided in subsections 3 and 5,the court may upon the request of a party:
(a) Order thatdisclosure pursuant to this section be denied, restricted or deferred pursuantto the provisions of NRS 174.275; or
(b) Impose sanctionspursuant to subsection 2 of NRS 174.295for the failure to comply with the provisions of this section.
7. A party is not entitled, pursuant to the provisionsof this section, to the disclosure of the name or address of a witness or anyother type of item or information that is privileged or protected fromdisclosure or inspection pursuant to the Constitution or laws of this state orthe Constitution of the United States.
(Added to NRS by 1995, 263; A 1997, 2366;
NRS
1. Except as otherwise provided in
(a) Written or recorded statements or confessions madeby the defendant, or any written or recorded statements made by a witness theprosecuting attorney intends to call during the case in chief of the State, orcopies thereof, within the possession, custody or control of the State, theexistence of which is known, or by the exercise of due diligence may becomeknown, to the prosecuting attorney;
(b) Results or reports of physical or mentalexaminations, scientific tests or scientific experiments made in connectionwith the particular case, or copies thereof, within the possession, custody orcontrol of the State, the existence of which is known, or by the exercise ofdue diligence may become known, to the prosecuting attorney; and
(c) Books, papers, documents, tangible objects, orcopies thereof, which the prosecuting attorney intends to introduce during thecase in chief of the State and which are within the possession, custody orcontrol of the State, the existence of which is known, or by the exercise ofdue diligence may become known, to the prosecuting attorney.
2. The defendant is not entitled, pursuant to theprovisions of this section, to the discovery or inspection of:
(a) An internal report, document or memorandum that isprepared by or on behalf of the prosecuting attorney in connection with theinvestigation 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 orprotected from disclosure or inspection pursuant to the Constitution or laws ofthis state or the Constitution of the United States.
3. The provisions of this section are not intended toaffect any obligation placed upon the prosecuting attorney by the Constitutionof this state or the Constitution of the United States to disclose exculpatoryevidence to the defendant.
(Added to NRS by 1967, 1419; A 1995, 264; 1997, 2367)
NRS
1. Except as otherwise provided in
(a) Written or recorded statements made by a witnessthe defendant intends to call during the case in chief of the defendant, orcopies thereof, within the possession, custody or control of the defendant, theexistence of which is known, or by the exercise of due diligence may becomeknown, to the defendant;
(b) Results or reports of physical or mentalexaminations, scientific tests or scientific experiments that the defendantintends to introduce in evidence during the case in chief of the defendant, orcopies thereof, within the possession, custody or control of the defendant, theexistence 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 thatthe defendant intends to introduce in evidence during the case in chief of thedefendant, or copies thereof, within the possession, custody or control of thedefendant, the existence of which is known, or by the exercise of due diligencemay become known, to the defendant.
2. The prosecuting attorney is not entitled, pursuantto the provisions of this section, to the discovery or inspection of:
(a) An internal report, document or memorandum that isprepared by or on behalf of the defendant or his attorney in connection withthe 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 orprotected from disclosure or inspection pursuant to the Constitution or laws ofthis state or the Constitution of the United States.
(Added to NRS by 1967, 1419; A 1969, 350; 1995, 265;1997, 2368)
NRS
(Added to NRS by 1967, 1420; A 1995, 265; 1997, 2369)
1. A request made pursuant to
2. A party shall comply with a request made pursuantto NRS 174.235 or
(Added to NRS by 1967, 1420; A 1995, 265; 1997, 2369)
NRS
1. If, after complying with the provisions of
2. If at any time during the course of the proceedingsit is brought to the attention of the court that a party has failed to complywith the provisions of NRS 174.234 to
(Added to NRS by 1967, 1420; A 1995, 265; 1997, 2370)
SUBPOENA
NRS
1. A subpoena must be issued by the clerk under theseal 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 toattend and give testimony at the time and place specified therein. The clerkshall issue a subpoena, signed and sealed but otherwise in blank, to a partyrequesting it, who shall fill in the blanks before it is served.
2. A subpoena must be issued by a justice of the peacein a proceeding before him under the seal of the court.
(Added to NRS by 1967, 1420; A 1967, 1367; 1987, 124)
NRS
1. The prosecuting attorney may issue subpoenassubscribed by him for witnesses within the State, in support of the prosecutionor whom the grand jury may direct to appear before it, upon any investigationpending before the grand jury.
2. The prosecuting attorney or the attorney for thedefendant may issue subpoenas subscribed by the issuer for:
(a) Witnesses within the State to appear before thecourt at which an indictment, information or criminal complaint is to be tried.
(b) Witnesses already subpoenaed who are required toreappear in any Justice Court at any time the court is to reconvene in the samecase within 60 days, and the time may be extended beyond 60 days upon goodcause 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 oralpromise to appear given by the witness. Any person who accepts an oral promiseto appear shall:
(a) Identify himself to the witness by name andoccupation;
(b) Make a written notation of the date when the oralpromise to appear was given and the information given by the person making theoral promise to appear identifying him as the witness subpoenaed; and
(c) Execute a certificate of service containing theinformation set forth in paragraphs (a) and (b).
4. The prosecuting attorney shall orally inform anywitness subpoenaed as provided in subsection 1 of the general nature of thegrand jurys inquiry before the witness testifies. Such a statement must beincluded in the transcript of the proceedings.
(Added to NRS by 1967, 1368; A 1979, 130; 1985, 573;1989, 685; 1991, 302; 1993, 118)
NRS
1. When it is necessary to have a person imprisoned inthe state prison brought before any district court, or a person imprisoned inthe county jail brought before a district court sitting in another county, anorder for that purpose may be made by the district court or district judge, atchambers, and executed by the sheriff of the county when it is made. The ordercan only be made upon motion of a party upon affidavit showing the nature ofthe action or proceeding, the testimony expected from the witness, and itsmateriality.
2. When a person required as a witness before adistrict court is imprisoned, the judge thereof may order the sheriff to bringthe prisoner before the court at the expense of the State or, in hisdiscretion, at the expense of the defendant.
(Added to NRS by 1967, 1420)
NRS
1. Except as otherwise provided in
2. The court on motion made promptly may quash ormodify the subpoena if compliance would be unreasonable or oppressive.
3. The court may direct that books, papers, documentsor objects designated in the subpoena be produced before the court at a timebefore the trial or before the time when they are to be offered in evidence andmay, upon their production, permit the books, papers, documents or objects orportions thereof to be inspected by the parties and their attorneys.
(Added to NRS by 1967, 1421; A 1985, 1030)
NRS
1. Except as otherwise provided in
2. Except as otherwise provided in
3. If a subpoena is served by mail, a certificate ofthe mailing must be filed with the court within 2 days after the subpoena ismailed.
(Added to NRS by 1967, 1421; A 1977, 638; 1989, 685)
NRS
(Added to NRS by 1967, 1421)
NRS
1. An order to take a deposition authorizes theissuance by the clerk of the court for the county in which the deposition is tobe taken of subpoenas for the persons named or described therein.
2. A resident of this state may be required to attendan examination only in the county wherein he resides or is employed ortransacts his business in person. A nonresident of this state may be requiredto attend only in the county where he is served with a subpoena or within 40miles from the place of service or at such other place as is fixed by thecourt.
(Added to NRS by 1967, 1421)
NRS
(Added to NRS by 1967, 1421; A 1979, 130; 1995, 1082)
ATTENDANCE OF WITNESSES OUTSIDE STATE (UNIFORM ACT)
NRS
(Added to NRS by 1967, 1421)
NRS
1. State shall include any territory of the UnitedStates and the District of Columbia.
2. Summons shall include a subpoena, order or othernotice requiring the appearance of a witness.
3. Witness shall include a person whose testimony isdesired in any proceeding or investigation by a grand jury or in a criminalaction, prosecution or proceeding.
(Added to NRS by 1967, 1421)
NRS
1. If a judge of a court of record in any state whichby its laws has made provision for commanding persons within that state toattend and testify in this State certifies under the seal of such court thatthere is a criminal prosecution pending in such court, or that a grand juryinvestigation has commenced or is about to commence, that a person being withinthis State is a material witness in such prosecution, or grand juryinvestigation, and that his presence will be required for a specified number ofdays, upon presentation of such certificate to any judge of a court of recordin the county in which such person is, such judge shall fix a time and placefor a hearing, and shall make an order directing the witness to appear at a timeand place certain for the hearing.
2. If at a hearing the judge determines that thewitness is material and necessary, that it will not cause undue hardship to thewitness to be compelled to attend and testify in the prosecution or a grandjury investigation in the other state, and that the laws of the state in whichthe prosecution is pending, or grand jury investigation has commenced or isabout to commence (and of any other state through which the witness may berequired to pass by ordinary course of travel), will give to him protectionfrom arrest and the service of civil and criminal process, he shall issue asummons, with a copy of the certificate attached, directing the witness toattend and testify in the court where the prosecution is pending, or where agrand jury investigation has commenced or is about to commence at a time andplace specified in the summons. In any such hearing the certificate shall beprima facie evidence of all the facts stated therein.
3. If the certificate recommends that the witness betaken into immediate custody and delivered to an officer of the requestingstate to assure his attendance in the requesting state, such judge may, in lieuof notification of the hearing, direct that such witness be forthwith broughtbefore him for hearings; and the judge at the hearing being satisfied of thedesirability of such custody and delivery, for which determination thecertificate shall be prima facie proof of such desirability, may, in lieu ofissuing subpoena or summons, order that the witness be forthwith taken intocustody 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 amountrequired by NRS 50.225 for hissubsistence and travel expenses, fails without good cause to attend and testifyas directed in the summons, he shall be punished in the manner provided for thepunishment of any witness who disobeys a summons issued from a court of recordin this State.
(Added to NRS by 1967, 1421; A 1987, 550)
NRS
1. If a person in any state, which by its laws hasmade provision for commanding persons within its borders to attend and testifyin criminal prosecutions, or grand jury investigations commenced or about tocommence, in this State, is a material witness in a prosecution pending in acourt of record in this State, or in a grand jury investigation which hascommenced or is about to commence, a judge of such a court may issue acertificate under the seal of the court stating these facts and specifying thenumber of days the witness will be required. The certificate may include a recommendationthat the witness be taken into immediate custody and delivered to an officer ofthis State to ensure his attendance in this State. This certificate must bepresented to a judge of a court of record in the county in which the witness isfound.
2. If the witness is summoned to attend and testify inthis State he is entitled to receive the amount required by
(Added to NRS by 1967, 1422; A 1987, 551)
NRS
1. If a person comes into this state in obedience to asummons directing him to attend and testify in this state he shall not while inthis state pursuant to such summons be subject to arrest or the service ofprocess, civil or criminal, in connection with matters which arose before hisentrance into this state under the summons.
2. If a person passes through this state while goingto another state in obedience to a summons to attend and testify in that stateor while returning therefrom, he shall not while so passing through this statebe subject to arrest or the service of process, civil or criminal, inconnection with matters which arose before his entrance into this state underthe summons.
(Added to NRS by 1967, 1423)
NRS
(Added to NRS by 1967, 1423)
REMOVAL OF ACTION BEFORE TRIAL
NRS
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 andimpartial trial cannot be had in the county where the indictment, informationor complaint is pending.
2. An application for removal of a criminal actionshall not be granted by the court until after the voir dire examination hasbeen conducted and it is apparent to the court that the selection of a fair andimpartial jury cannot be had in the county where the indictment, information orcomplaint is pending.
3. An order in a criminal action changing or refusingto change the place of trial is appealable only on appeal from the finaljudgment.
(Added to NRS by 1967, 1423; A 1969, 378; 1981, 1707)
NRS
1. The application for removal must be made in opencourt, and in writing, verified by the affidavit of the defendant or districtattorney, and a copy of the affidavit must be served on the adverse party, atleast 1 day prior to the hearing of the application.
2. The application may be supported or opposed byother affidavits or other evidence, or other witnesses may be examined in opencourt.
3. Whenever the affidavit of the defendant shows thathe cannot safely appear in person to make such application, because popularprejudice is so great as to endanger his personal safety, and such statement issustained by other testimony, such application may be made by his attorney andmust be heard and determined in the absence of the defendant, notwithstandingthe charge then pending against him be a felony, and he has not, at the time ofsuch application, been arrested or given bail, or been arraigned, or pleaded tothe indictment or information.
(Added to NRS by 1967, 1423)
NRS
(Added to NRS by 1967, 1423)
NRS
(Added to NRS by 1967, 1423)
NRS
(Added to NRS by 1967, 1423)
NRS
(Added to NRS by 1967, 1424)
TIME OF TRIAL
NRS
1. It finds that more time is needed by the defendantto prepare his defense; or
2. The number of other cases pending in the courtprohibits the acceptance of the case for trial within that time.
(Added to NRS by 1983, 1670)
NRS
1. When an action is called for trial, or at any timeprevious thereto, the court may, upon sufficient cause shown by either party byaffidavit, direct the trial to be postponed to another day. In all cases wherea continuance is granted upon the application of either party the court mayrequire, as a condition of granting such continuance, that the party applyingtherefor 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 whosedeposition has not previously been taken.
2. The court also may require all witnesses to enterinto 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 anywitness who is unable to procure sureties for his attendance may be dischargedon his own recognizance, upon giving his deposition in the manner prescribed inNRS 174.175 and
3. If the trial involves acts committed against achild less than 16 years of age or involving acts witnessed by a child lessthan 16 years of age, the court may consider any adverse effect a continuanceor other postponement might have upon the mental or emotional health orwell-being of the child. The court may deny a continuance or other postponementif the delay will adversely affect the mental or emotional health or well-beingof the child.
(Added to NRS by 1967, 1424; A 1989, 588; 1995, 400)
NRS
(Added to NRS by 1995, 400; A 1997, 511)
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