2005 Nevada Revised Statutes - Chapter 51 — Hearsay

CHAPTER 51 - HEARSAY

GENERAL PROVISIONS

NRS 51.015 Definitions.

NRS 51.025 Declarantdefined.

NRS 51.035 Hearsaydefined.

NRS 51.045 Statementdefined.

NRS 51.055 Unavailableas a witness defined.

NRS 51.065 Generalrule.

NRS 51.067 Hearsaywithin hearsay.

NRS 51.069 Credibilityof declarant.

EXCEPTIONS

Availability of Declarant Immaterial

NRS 51.075 Generalexception; other exceptions illustrative.

NRS 51.085 Presentsense impressions.

NRS 51.095 Excitedutterances.

NRS 51.105 Thenexisting mental, emotional or physical condition.

NRS 51.115 Statementsfor purposes of medical diagnosis or treatment.

NRS 51.125 Recordedrecollection.

NRS 51.135 Recordof regularly conducted activity.

NRS 51.145 Absenceof entry in records of regularly conducted activity.

NRS 51.155 Publicrecords and reports.

NRS 51.165 Requiredreports.

NRS 51.175 Absenceof public record or entry.

NRS 51.185 Recordsof religious organizations.

NRS 51.195 Marriage,baptismal and similar certificates.

NRS 51.205 Familyrecords.

NRS 51.215 Recordsof documents affecting interest in property.

NRS 51.225 Statementin document affecting interest in property.

NRS 51.235 Statementsin ancient documents.

NRS 51.245 Marketreports; commercial publications.

NRS 51.255 Learnedtreatises.

NRS 51.265 Reputationconcerning personal or family history.

NRS 51.275 Reputationconcerning boundaries or general history.

NRS 51.285 Reputationas to character.

NRS 51.295 Judgmentof previous conviction.

NRS 51.305 Judgmentas to boundaries or personal, family or general history.

Declarant Unavailable

NRS 51.315 Generalexception; other exceptions illustrative.

NRS 51.325 Formertestimony.

NRS 51.335 Statementunder belief of impending death.

NRS 51.345 Statementagainst interest.

NRS 51.355 Statementof personal or family history.

Statement of Child Describing Sexual Conduct orPhysical Abuse

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

_________

GENERAL PROVISIONS

NRS 51.015 Definitions. As used in this chapter, unless the context otherwiserequires, the words and phrases defined in NRS51.025 to 51.055, inclusive, havethe meanings ascribed to them in such sections.

(Added to NRS by 1971, 793)

NRS 51.025 Declarantdefined. Declarant means a person who makesa statement.

(Added to NRS by 1971, 793)

NRS 51.035 Hearsaydefined. Hearsay means a statement offeredin evidence to prove the truth of the matter asserted unless:

1. The statement is one made by a witness whiletestifying at the trial or hearing;

2. The declarant testifies at the trial or hearing andis subject to cross-examination concerning the statement, and the statement is:

(a) Inconsistent with his testimony;

(b) Consistent with his testimony and offered to rebutan express or implied charge against him of recent fabrication or improperinfluence or motive;

(c) One of identification of a person made soon afterperceiving him; or

(d) A transcript of testimony given under oath at atrial or hearing or before a grand jury; or

3. The statement is offered against a party and is:

(a) His own statement, in either his individual or arepresentative capacity;

(b) A statement of which he has manifested his adoptionor belief in its truth;

(c) A statement by a person authorized by him to make astatement concerning the subject;

(d) A statement by his agent or servant concerning amatter within the scope of his agency or employment, made before thetermination of the relationship; or

(e) A statement by a coconspirator of a party duringthe course and in furtherance of the conspiracy.

(Added to NRS by 1971, 793)

NRS 51.045 Statementdefined. Statement means:

1. An oral or written assertion; or

2. Nonverbal conduct of a person, if it is intended byhim as an assertion.

(Added to NRS by 1971, 794)

NRS 51.055 Unavailableas a witness defined.

1. A declarant is unavailable as a witness if he is:

(a) Exempted by ruling of the judge on the ground ofprivilege from testifying concerning the subject matter of his statement;

(b) Persistent in refusing to testify despite an orderof the judge to do so;

(c) Unable to be present or to testify at the hearingbecause of death or then existing physical or mental illness or infirmity; or

(d) Absent from the hearing and beyond the jurisdictionof the court to compel appearance and the proponent of his statement hasexercised reasonable diligence but has been unable to procure his attendance orto take his deposition.

2. A declarant is not unavailable as a witness ifhis exemption, refusal, inability or absence is due to the procurement orwrongdoing of the proponent of his statement for the purpose of preventing thewitness from attending or testifying.

(Added to NRS by 1971, 794)

NRS 51.065 Generalrule.

1. Hearsay is inadmissible except as provided in thischapter, title 14 of NRS and the Nevada Rules of Civil Procedure.

2. This section constitutes the hearsay rule.

(Added to NRS by 1971, 794)

NRS 51.067 Hearsaywithin hearsay. Hearsay included withinhearsay is not excluded under the hearsay rule if each part of the combinedstatements conforms to an exception to the hearsay rule provided in thischapter.

(Added to NRS by 1971, 798)(Substituted in revisionfor NRS 51.365)

NRS 51.069 Credibilityof declarant.

1. When a hearsay statement has been admitted inevidence, the credibility of the declarant may be attacked or supported by anyevidence which would be admissible for those purposes if the declarant hadtestified as a witness.

2. Evidence of a statement or conduct by the declarantat any time, which is inconsistent with his hearsay statement, is not subjectto any requirement that he must have been afforded an opportunity to deny orexplain.

3. If the party against whom a hearsay statement hasbeen admitted calls the declarant as a witness, the party may examine thewitness on that statement as if the witness were under cross-examination.

(Added to NRS by 1971, 798; A 1979, 25)(Substitutedin revision for NRS 51.375)

EXCEPTIONS

Availability of Declarant Immaterial

NRS 51.075 Generalexception; other exceptions illustrative.

1. A statement is not excluded by the hearsay rule ifits nature and the special circumstances under which it was made offerassurances of accuracy not likely to be enhanced by calling the declarant as awitness, even though he is available.

2. The provisions of NRS51.085 to 51.305, inclusive, areillustrative and not restrictive of the exception provided by this section.

(Added to NRS by 1971, 794)

NRS 51.085 Presentsense impressions. A statement describing orexplaining an event or condition made while the declarant was perceiving theevent or condition, or immediately thereafter, is not inadmissible under thehearsay rule.

(Added to NRS by 1971, 794)

NRS 51.095 Excitedutterances. A statement relating to astartling event or condition made while the declarant was under the stress ofexcitement caused by the event or condition is not inadmissible under thehearsay rule.

(Added to NRS by 1971, 794)

NRS 51.105 Thenexisting mental, emotional or physical condition.

1. A statement of the declarants then existing stateof mind, emotion, sensation or physical condition, such as intent, plan,motive, design, mental feeling, pain and bodily health, is not inadmissibleunder the hearsay rule.

2. A statement of memory or belief to prove the factremembered or believed is inadmissible under the hearsay rule unless it relatesto the execution, revocation, identification or terms of declarants will.

(Added to NRS by 1971, 795)

NRS 51.115 Statementsfor purposes of medical diagnosis or treatment. Statementsmade for purposes of medical diagnosis or treatment and describing medicalhistory, or past or present symptoms, pain or sensations, or the inception orgeneral character of the cause or external source thereof are not inadmissibleunder the hearsay rule insofar as they were reasonably pertinent to diagnosisor treatment.

(Added to NRS by 1971, 795)

NRS 51.125 Recordedrecollection.

1. A memorandum or record concerning a matter aboutwhich a witness once had knowledge but now has insufficient recollection toenable him to testify fully and accurately is not inadmissible under thehearsay rule if it is shown to have been made when the matter was fresh in hismemory and to reflect that knowledge correctly.

2. The memorandum or record may be read into evidencebut may not itself be received unless offered by an adverse party.

(Added to NRS by 1971, 795)

NRS 51.135 Recordof regularly conducted activity. A memorandum,report, record or compilation of data, in any form, of acts, events,conditions, opinions or diagnoses, made at or near the time by, or frominformation transmitted by, a person with knowledge, all in the course of aregularly conducted activity, as shown by the testimony or affidavit of the custodianor other qualified person, is not inadmissible under the hearsay rule unlessthe source of information or the method or circumstances of preparationindicate lack of trustworthiness.

(Added to NRS by 1971, 795; A 1977, 1533; 1985, 787;1989, 322; 1995, 1726)

NRS 51.145 Absenceof entry in records of regularly conducted activity. Evidencethat a matter is not included in the memoranda, reports, records or datacompilations, in any form, of a regularly conducted activity is notinadmissible under the hearsay rule to prove the nonoccurrence or nonexistenceof the matter, if the matter was of a kind of which a memorandum, report,record or data compilation was regularly made and preserved.

(Added to NRS by 1971, 795)

NRS 51.155 Publicrecords and reports. Records, reports,statements or data compilations, in any form, of public officials or agenciesare not inadmissible under the hearsay rule if they set forth:

1. The activities of the official or agency;

2. Matters observed pursuant to duty imposed by law;or

3. In civil cases and against the State in criminalcases, factual findings resulting from an investigation made pursuant toauthority granted by law,

unless thesources of information or the method or circumstances of the investigationindicate lack of trustworthiness.

(Added to NRS by 1971, 795)

NRS 51.165 Requiredreports. Records or data compilations, in anyform, of births, fetal deaths, deaths or marriages are not inadmissible underthe hearsay rule if the report thereof was made to a public office pursuant torequirements of law.

(Added to NRS by 1971, 795)

NRS 51.175 Absenceof public record or entry. To prove:

1. The absence of a record, report, statement or datacompilation, in any form; or

2. The nonoccurrence or nonexistence of a matter ofwhich a record, report, statement or data compilation, in any form, wasregularly made and preserved by a public officer, agency or official,

evidence inthe form of a certificate of the custodian or other person authorized to makethe certification, or testimony, that diligent search failed to disclose therecord, report, statement, data compilation or entry is not inadmissible underthe hearsay rule.

(Added to NRS by 1971, 795)

NRS 51.185 Recordsof religious organizations. Statements ofbirths, marriages, divorces, deaths, legitimacy, ancestry, relationship byblood or marriage, or other similar facts of personal or family history,contained in a regularly kept record of a religious organization, are notinadmissible under the hearsay rule.

(Added to NRS by 1971, 796)

NRS 51.195 Marriage,baptismal and similar certificates. Statementsof fact contained in a certificate that the maker performed a marriage or otherceremony or administered a sacrament, made by a clergyman, public official orother person authorized by the rules or practices of a religious organizationor by law to perform the act certified, and purporting to have been issued atthe time of the act or within a reasonable time thereafter, are notinadmissible under the hearsay rule.

(Added to NRS by 1971, 796)

NRS 51.205 Familyrecords. Statements of fact contained infamily Bibles, genealogies, charts, engravings on rings, inscriptions on familyportraits, engravings on urns, crypts or tombstones, or the like, are notinadmissible under the hearsay rule.

(Added to NRS by 1971, 796)

NRS 51.215 Recordsof documents affecting interest in property. Therecord of a document purporting to establish or affect an interest in property,as proof of the content of the original recorded document and its execution anddelivery by each person by whom it purports to have been executed, is notinadmissible under the hearsay rule if the record is a record of a publicoffice and an applicable statute authorized the recording of documents of thatkind in that office.

(Added to NRS by 1971, 796)

NRS 51.225 Statementin document affecting interest in property. Astatement contained in a document purporting to establish or affect an interestin property is not inadmissible under the hearsay rule if the matter stated wasrelevant to the purpose of the document, unless dealings with the propertysince the document was made have been inconsistent with the truth of thestatement or the purport of the document.

(Added to NRS by 1971, 796)

NRS 51.235 Statementsin ancient documents. Statements in a documentmore than 20 years old whose authenticity is established are not inadmissibleunder the hearsay rule.

(Added to NRS by 1971, 796)

NRS 51.245 Marketreports; commercial publications. Marketquotations, tabulations, lists, directories or other published compilations,generally used and relied upon by the public or by persons in particularoccupations, are not inadmissible under the hearsay rule.

(Added to NRS by 1971, 796)

NRS 51.255 Learnedtreatises. To the extent called to theattention of an expert witness upon cross-examination or relied upon by him indirect examination, a statement contained in a published treatise, periodicalor pamphlet on a subject of history, medicine or other science or art, is notinadmissible under the hearsay rule if such book is established as a reliableauthority by the testimony or admission of the witness or by other experttestimony or by judicial notice.

(Added to NRS by 1971, 796)

NRS 51.265 Reputationconcerning personal or family history. Reputationamong members of a persons family by blood or marriage, or among his associates,or in the community, is not inadmissible under the hearsay rule if it concernshis birth, marriage, divorce, death, legitimacy, relationship by blood or marriage,ancestry or other similar fact of his personal or family history.

(Added to NRS by 1971, 796)

NRS 51.275 Reputationconcerning boundaries or general history. Reputationin a community, arising before the controversy, as to:

1. Boundaries of or customs affecting lands in thecommunity; and

2. Events of general history important to thecommunity or to the State or nation in which the community is located,

are notinadmissible under the hearsay rule.

(Added to NRS by 1971, 797)

NRS 51.285 Reputationas to character. Reputation of a personscharacter among his associates or in the community is not inadmissible underthe hearsay rule.

(Added to NRS by 1971, 797)

NRS 51.295 Judgmentof previous conviction.

1. Evidence of a final judgment, entered after trialor upon a plea of guilty, but not upon a plea of nolo contendere, adjudging aperson guilty of a crime punishable by death or imprisonment in excess of 1year, is not inadmissible under the hearsay rule to prove any fact essential tosustain the judgment.

2. This section does not make admissible, when offeredby the State in a criminal prosecution for purposes other than impeachment, ajudgment against a person other than the accused.

3. The pendency of an appeal may be shown but does notaffect admissibility.

(Added to NRS by 1971, 797; A 1995, 2466; 2003, 1480)

NRS 51.305 Judgmentas to boundaries or personal, family or general history. A judgment is not inadmissible under the hearsay rule asproof of matters of personal, family or general history, or boundaries,essential to the judgment, if the matters would be provable by evidence ofreputation.

(Added to NRS by 1971, 797)

Declarant Unavailable

NRS 51.315 Generalexception; other exceptions illustrative.

1. A statement is not excluded by the hearsay rule if:

(a) Its nature and the special circumstances underwhich it was made offer strong assurances of accuracy; and

(b) The declarant is unavailable as a witness.

2. The provisions of NRS51.325 to 51.355, inclusive, areillustrative and not restrictive of the exception provided by this section.

(Added to NRS by 1971, 797)

NRS 51.325 Formertestimony. Testimony given as a witness atanother hearing of the same or a different proceeding, or in a deposition takenin compliance with law in the course of another proceeding, is not inadmissibleunder the hearsay rule if:

1. The declarant is unavailable as a witness; and

2. If the proceeding was different, the party againstwhom the former testimony is offered was a party or is in privity with one ofthe former parties and the issues are substantially the same.

(Added to NRS by 1971, 797)

NRS 51.335 Statementunder belief of impending death. A statementmade by a declarant while believing that his death was imminent is notinadmissible under the hearsay rule if the declarant is unavailable as awitness.

(Added to NRS by 1971, 797)

NRS 51.345 Statementagainst interest.

1. A statement which at the time of its making:

(a) Was so far contrary to the pecuniary or proprietaryinterest of the declarant;

(b) So far tended to subject the declarant to civil orcriminal liability;

(c) So far tended to render invalid a claim by thedeclarant against another; or

(d) So far tended to make the declarant an object ofhatred, ridicule or social disapproval,

that areasonable person in the position of the declarant would not have made thestatement unless the declarant believed it to be true is not inadmissible underthe hearsay rule if the declarant is unavailable as a witness. A statementtending to expose the declarant to criminal liability and offered to exculpatethe accused in a criminal case is not admissible unless corroboratingcircumstances clearly indicate the trustworthiness of the statement.

2. This section does not make admissible a statementor confession offered against the accused made by a codefendant or other personimplicating both himself and the accused.

(Added to NRS by 1971, 797; A 1979, 44; 1997, 1592)

NRS 51.355 Statementof personal or family history.

1. A statement concerning the declarants own birth,marriage, divorce, legitimacy, relationship by blood or marriage, ancestry orother similar fact of personal or family history is not inadmissible under thehearsay rule if the declarant is unavailable as a witness, even though declaranthad no means of acquiring personal knowledge of the matter stated.

2. A statement concerning the matters enumerated insubsection 1, and death also, of another person is not inadmissible under thehearsay rule if the declarant:

(a) Was related to the other by blood or marriage orwas so intimately associated with the others family as to be likely to haveaccurate information concerning the matter declared; and

(b) Is unavailable as a witness.

(Added to NRS by 1971, 798)

Statement of Child Describing Sexual Conduct or PhysicalAbuse

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

1. In addition to any other provision foradmissibility made by statute or rule of court, a statement made by a childunder the age of 10 years describing any act of sexual conduct performed withor on the child or any act of physical abuse of the child is admissible in acriminal proceeding regarding that act of sexual conduct or physical abuse if:

(a) The court finds, in a hearing out of the presenceof the jury, that the time, content and circumstances of the statement providesufficient circumstantial guarantees of trustworthiness; and

(b) The child testifies at the proceeding or isunavailable or unable to testify.

2. In determining the trustworthiness of a statement,the court shall consider, without limitation, whether:

(a) The statement was spontaneous;

(b) The child was subjected to repetitive questioning;

(c) The child had a motive to fabricate;

(d) The child used terminology unexpected of a child ofsimilar age; and

(e) The child was in a stable mental state.

3. If the child is unavailable or unable to testify,written notice must be given to the defendant at least 10 days before the trialof the prosecutions intention to offer the statement in evidence.

(Added to NRS by 1985, 2132; A 2001, 702)

 

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