NEWSFLASH!!! Prosecutors and defense attorneys disagree over proposed evidentiary rule that would allow hearsay in preliminary hearings! The rule change was proposed in AB 193 which has already passed in the Assembly. While the bill is supported by DA Steve Wolfson who touts it as a victims’ rights bill, this is getting a lot of attention now thanks to a letter from over 220 criminal defense attorneys, a veritable who’s who of Las Vegas defense attorneys, who signed a letter opposing passage of the bill. [RJ; 8NewsNow]
If you want to see a copy of the letter and who signed it, head over to Ralston Reports where you can find the letter along with commentary from Ralston about how dumb it is for attorneys to state that those who support this bill will not receive financial support from the signatories of the letter.
What do you think about AB 193? Good idea or bad idea? Do you think it was dumb for the defense attorneys to threaten to pull their financial support of those who support the bill?
Meanwhile, the swift and decisive Nevada Commission on Judicial Discipline is seeking a lifetime ban from the bench for former judge Steven Jones. [RJ]
The U.S. Supreme Court is hearing oral argument on same-sex marriage bans this morning. Check out the live blog and full coverage at Scotusblog.com
I'll admit that I don't practice criminal law, but as a somewhat informed citizen, I don't see a problem with the proposed revisions in AB 193. It looks like it is intended to protect victims in very limited circumstances–victims who otherwise may be traumatized again by having to confront the alleged perpetrator of the crime in court where they will simply regurgitate the statement they already gave.
10:26 the DA has two options on felonies and gross misdemeanors, they can either file a complaint in justice court, where there is a preliminary hearing and since the threshold is low the matter is usually bound over to district court for trial; or the DA can present the matter to a grand jury, obtain an indictment and you are sent to district court immediately where the matter is set for trial.
10:18 is absolutely correct, if the DA's concern is attempting to avoid traumatizing a victim from testifying twice then present the case to a grand jury to obtain an indictment and go straight to district court. In that scenario then the victim only has to testify once at trial. If hearsay is allowed, why not go even further and make it so an officer doesn't have to testify at a prelim (I mean why waste the time of the officer either as he is simply going to recite what he or she wrote in the report), just have a designated person read from the report.
The proposed changes greatly narrow the scope and impact of the use of hearsay in criminal cases but the original bill had no such restrictions. Essentially the preliminary hearing burden, already a very low hurdle for the state to overcome, would have been meaningless. The letter was undoubtedly drafted back when the bill was first proposed and mostly addressed it.
To get an idea of the issue, think back to your worst grade school experience with a tattler or bully who tried to get you in trouble by telling the teacher that little Sally told them that she heard from Tommy that YOU were the one who threw a rock on the playground that hit little Billy sending him to the hospital for stitches. Worse, Sally says you told Tommy you did it on purpose because you don't like Billy. No one actually talked to Billy (who may have said "I never said that" but he did tell a teacher he got hit by a rock and his injuries are real enough). Now imagine that instead of detention, based on this type of testimony you are facing a Battery with Use of a Deadly Weapon Resulting in Substantial Bodily Harm and maybe an Attempted Murder charge. And, because witnesses can refuse to talk to defense attorneys or their investigators, your attorney does not have an absolute right to question or cross examine ANY witnesses until they are on the stand in front of a jury. The adage "Never ask a question you don't already know the answer to" is especially important in front of a jury when a client's freedom is in the balance. Answers that could have been obtained and clarified at the preliminary hearing by examining the actual sources of the information.
Would the original changes to the law have saved money for the State? Sure. But as another commentator (on the RJ page I think) noted, so would eliminating the DA, PD and most of the Court's functions and staffing by simply allowing the police to transport the accused to Prison to be locked up on the officer's say so. And, sadly, many people would agree to that ludicrous example right up until they, or their child, is in the back of the squad car headed for Indian Springs.
Guest
Anonymous
April 28, 2015 7:33 pm
One of the 220 here, sure wish I read that part about soliciting before I signed it. Makes us look like a bag of dicks, takes away from the message and is 100% bullshit. We'll still give money.
Actually, I don't recall being told that it would go to anyone other than the legislature. There may have been speculation that it would get reported by one of them, eventually, but it was not explained that the letter would be flash mailed to the number of people it was. In the end this letter was the product of a few people who then solicited support from everyone with skin in the game. I suspect the majority of signers agreed with the majority of the letter and did not feel that the paragraph that has gotten the majority of the attention was all that big of a thing.
Guest
Anonymous
April 28, 2015 9:34 pm
I'm not a criminal defense lawyer (or a prosecutor), but I am a public lawyer. We don't get solicited much by assembly and senate candidates. Do private lawyers contribute to these campaigns? Don't we all have to save our money for judges?
http://abovethelaw.com/2015/04/new-nevada-bill-is-a-slapp-in-the-face-of-free-speech/
I'll admit that I don't practice criminal law, but as a somewhat informed citizen, I don't see a problem with the proposed revisions in AB 193. It looks like it is intended to protect victims in very limited circumstances–victims who otherwise may be traumatized again by having to confront the alleged perpetrator of the crime in court where they will simply regurgitate the statement they already gave.
In the situation you describe, the prosecutor is free to present the case to the grand jury, where the alleged perpetrator will not be present.
but this specifically deals with justice court cases does it not? Can the prosecutor still use grand jury for those?
10:26 the DA has two options on felonies and gross misdemeanors, they can either file a complaint in justice court, where there is a preliminary hearing and since the threshold is low the matter is usually bound over to district court for trial; or the DA can present the matter to a grand jury, obtain an indictment and you are sent to district court immediately where the matter is set for trial.
10:18 is absolutely correct, if the DA's concern is attempting to avoid traumatizing a victim from testifying twice then present the case to a grand jury to obtain an indictment and go straight to district court. In that scenario then the victim only has to testify once at trial. If hearsay is allowed, why not go even further and make it so an officer doesn't have to testify at a prelim (I mean why waste the time of the officer either as he is simply going to recite what he or she wrote in the report), just have a designated person read from the report.
The proposed changes greatly narrow the scope and impact of the use of hearsay in criminal cases but the original bill had no such restrictions. Essentially the preliminary hearing burden, already a very low hurdle for the state to overcome, would have been meaningless. The letter was undoubtedly drafted back when the bill was first proposed and mostly addressed it.
To get an idea of the issue, think back to your worst grade school experience with a tattler or bully who tried to get you in trouble by telling the teacher that little Sally told them that she heard from Tommy that YOU were the one who threw a rock on the playground that hit little Billy sending him to the hospital for stitches. Worse, Sally says you told Tommy you did it on purpose because you don't like Billy. No one actually talked to Billy (who may have said "I never said that" but he did tell a teacher he got hit by a rock and his injuries are real enough). Now imagine that instead of detention, based on this type of testimony you are facing a Battery with Use of a Deadly Weapon Resulting in Substantial Bodily Harm and maybe an Attempted Murder charge. And, because witnesses can refuse to talk to defense attorneys or their investigators, your attorney does not have an absolute right to question or cross examine ANY witnesses until they are on the stand in front of a jury. The adage "Never ask a question you don't already know the answer to" is especially important in front of a jury when a client's freedom is in the balance. Answers that could have been obtained and clarified at the preliminary hearing by examining the actual sources of the information.
Would the original changes to the law have saved money for the State? Sure. But as another commentator (on the RJ page I think) noted, so would eliminating the DA, PD and most of the Court's functions and staffing by simply allowing the police to transport the accused to Prison to be locked up on the officer's say so. And, sadly, many people would agree to that ludicrous example right up until they, or their child, is in the back of the squad car headed for Indian Springs.
One of the 220 here, sure wish I read that part about soliciting before I signed it. Makes us look like a bag of dicks, takes away from the message and is 100% bullshit. We'll still give money.
Solid work not reading it, I mean it's not like it was going to be published or pushed out like a press release or anything.
Actually, I don't recall being told that it would go to anyone other than the legislature. There may have been speculation that it would get reported by one of them, eventually, but it was not explained that the letter would be flash mailed to the number of people it was. In the end this letter was the product of a few people who then solicited support from everyone with skin in the game. I suspect the majority of signers agreed with the majority of the letter and did not feel that the paragraph that has gotten the majority of the attention was all that big of a thing.
I'm not a criminal defense lawyer (or a prosecutor), but I am a public lawyer. We don't get solicited much by assembly and senate candidates. Do private lawyers contribute to these campaigns? Don't we all have to save our money for judges?