[Rev. 2/10/2015 4:23:33
PM--2014R2]
CHAPTER 174 - ARRAIGNMENT AND PREPARATION
FOR TRIAL
ARRAIGNMENT
NRS 174.015 Conduct
of arraignment.
NRS 174.025 Proceedings
respecting name of defendant; entry of true name in minutes; subsequent
proceedings in true name.
PLEAS
NRS 174.035 Types
of pleas; procedure for entering plea.
NRS 174.055 Proceedings
on plea of guilty or guilty but mentally ill in justice court.
NRS 174.061 Plea
bargaining: General requirements; prohibited agreements.
NRS 174.063 Written
plea agreement for plea of guilty or guilty but mentally ill: Form; contents.
NRS 174.065 When
plea may specify degree of crime or punishment.
PLEADINGS AND MOTIONS BEFORE TRIAL; DEFENSES AND OBJECTIONS
NRS 174.075 Pleadings
and motions.
NRS 174.085 Proceedings
not constituting acquittal; effect of acquittal on merits; proceedings
constituting bar to another prosecution; retrial after discharge of jury;
effect of voluntary dismissal.
NRS 174.095 Defenses
and objections which may be raised by motion.
NRS 174.098 Motion
to declare that defendant is intellectually disabled: When authorized;
procedure.
NRS 174.105 Defenses
and objections which must be raised by motion.
NRS 174.115 Time
of making motion.
NRS 174.125 Certain
motions required to be made before trial.
NRS 174.135 Hearing
on motion.
NRS 174.145 Effect
of determination.
JOINDER AND RELIEF THEREFROM
NRS 174.155 Trial
together of indictments or informations.
NRS 174.165 Relief
from prejudicial joinder.
DEPOSITIONS
NRS 174.171 Applicability.
NRS 174.175 When
taken.
NRS 174.185 Notice
of taking.
NRS 174.195 Defendant’s
counsel and payment of expenses.
NRS 174.205 How
taken.
NRS 174.215 Use
of deposition.
NRS 174.225 Objections
to admissibility.
VIDEOTAPED DEPOSITIONS AND TESTIMONY
NRS 174.227 Videotaped
depositions: Order of court; notice to parties; cross-examination; use.
NRS 174.228 Videotaped
depositions: Use.
NRS 174.229 Videotaped
testimony.
NRS 174.231 Effect
of NRS 174.227, 174.228
and 174.229.
DISCOVERY AND INSPECTION
NRS 174.233 Disclosure
by defendant of intent to claim alibi; defendant to disclose list of alibi
witnesses; prosecuting attorney to disclose list of rebuttal witnesses;
continuing duty to disclose; sanctions.
NRS 174.234 Reciprocal
disclosure of lists of witnesses and information relating to expert testimony;
continuing duty to disclose; protective orders; sanctions.
NRS 174.235 Disclosure
by prosecuting attorney of evidence relating to prosecution; limitations.
NRS 174.245 Disclosure
by defendant of evidence relating to defense; limitations.
NRS 174.275 Protective
orders.
NRS 174.285 Time
limits.
NRS 174.295 Continuing
duty to disclose; failure to comply; sanctions.
SUBPOENA
NRS 174.305 Subpoena
for attendance of witnesses; form; issuance.
NRS 174.315 Issuance
of subpoena by prosecuting attorney or attorney for defendant; promise to
appear; informing witness of general nature of grand jury’s inquiry;
calendaring of certain subpoenas.
NRS 174.325 Production
of prisoner as witness.
NRS 174.335 Subpoena
for production of documentary evidence and of objects.
NRS 174.345 Service
of subpoena.
NRS 174.365 Place
of service.
NRS 174.375 Subpoena
for taking depositions; place of examination.
NRS 174.385 Contempt.
ATTENDANCE OF WITNESSES OUTSIDE STATE (UNIFORM ACT)
NRS 174.395 Short
title.
NRS 174.405 Definitions.
NRS 174.415 Summoning
witness in this State to testify in another state.
NRS 174.425 Witness
from another state summoned to testify in this State.
NRS 174.435 Exemption
from arrest and service of process.
NRS 174.445 Uniformity
of interpretation.
REMOVAL OF ACTION BEFORE TRIAL
NRS 174.455 Ground
for 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 Application
for removal: Making and service; hearing and determination in absence of
defendant.
NRS 174.475 Order
transferring action: When to be made.
NRS 174.485 Entry
of order of removal; transmittal of papers.
NRS 174.495 Proceedings
on removal when defendant is in custody.
NRS 174.505 Authority
of court to which action is removed; transmission of original papers.
TIME OF TRIAL
NRS 174.511 Right
of State to trial within 60 days after arraignment; exceptions.
NRS 174.515 Postponement:
When and how ordered; court may require depositions of and undertakings by
witnesses; court may consider adverse effect upon child who is victim or
witness.
NRS 174.519 Request
for 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 174.015 Conduct of arraignment.
1. Arraignment shall be conducted in open
court and shall consist of reading the indictment or information to the
defendant or stating the substance of the charge and calling on the defendant
to plead thereto. The defendant shall be given a copy of the indictment or
information before the defendant is called upon to plead.
2. In Justice Court, before the trial
commences, the complaint must be distinctly read to the defendant before the
defendant is called upon to plead.
(Added to NRS by 1967, 1414)
NRS 174.025 Proceedings respecting name of defendant; entry of true name in
minutes; subsequent proceedings in true name. When
the defendant is arraigned, the defendant must be informed that if the name by
which the defendant is prosecuted is not his or her true name the defendant
must then declare his or her true name, or be proceeded against by the name in
the indictment, information or complaint. If the defendant gives no other name,
the court may proceed accordingly; but, if the defendant alleges that another
name is his or her 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 the defendant by that name,
referring also to the name by which the defendant was first charged therein.
(Added to NRS by 1967, 1415)
PLEAS
NRS 174.035 Types of pleas; procedure for entering plea.
1. A defendant may plead not guilty,
guilty, guilty but mentally ill or, with the consent of the court, nolo
contendere. The court may refuse to accept a plea of guilty or guilty but
mentally ill.
2. If a plea of guilty or guilty but
mentally ill 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 or guilty but mentally ill 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, guilty
but mentally ill 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. A plea of guilty but mentally ill must
be entered not less than 21 days before the date set for trial. A defendant who
has entered a plea of guilty but mentally ill has the burden of establishing
the defendant’s mental illness by a preponderance of the evidence. Except as
otherwise provided by specific statute, a defendant who enters such a plea is
subject to the same criminal, civil and administrative penalties and procedures
as a defendant who pleads guilty.
5. 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 by a preponderance of the evidence that:
(a) Due to a disease or defect of the mind, the
defendant was in a delusional state at the time of the alleged offense; and
(b) Due to the delusional state, the defendant
either did not:
(1) Know or understand the nature and
capacity of his or her act; or
(2) Appreciate that his or her conduct was
wrong, meaning not authorized by law.
6. If a defendant refuses to plead or if
the court refuses to accept a plea of guilty or guilty but mentally ill or if a
defendant corporation fails to appear, the court shall enter a plea of not
guilty.
7. A defendant may not enter a plea of
guilty or guilty but mentally ill 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 the defendant is represented by counsel, and the
prosecuting attorney.
8. If the court accepts a plea of guilty
but mentally ill pursuant to this section, the court shall cause, on a form
prescribed by the Department of Public Safety, a record of that plea to be
transmitted to the Central Repository for Nevada Records of Criminal History
along with a statement indicating that the record is being transmitted for
inclusion in each appropriate database of the National Instant Criminal
Background Check System.
9. As used in this section:
(a) “Disease or defect of the mind” does not
include a disease or defect which is caused solely by voluntary intoxication.
(b) “National Instant Criminal Background Check
System” has the meaning ascribed to it in NRS
179A.062.
(Added to NRS by 1967, 1415; A 1991, 301, 1062; 1995, 1534, 2450; 1997, 641; 2003, 1457; 2007, 1405; 2009, 2484)
NRS 174.055 Proceedings on plea of guilty or guilty but mentally ill in
justice court. In a justice court,
if the defendant pleads guilty or guilty but mentally ill, 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 the defendant or any
information which may be filed by the district attorney.
(Added to NRS by 1967, 1415; A 1995, 2450; 2003, 1458; 2007, 1406)
NRS 174.061 Plea bargaining: General requirements; prohibited agreements.
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, guilty but mentally ill 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; 2007, 1406)
NRS 174.063 Written plea agreement for plea of guilty or guilty but mentally
ill: Form; contents.
1. If a plea of guilty or guilty but mentally
ill 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
OR GUILTY BUT MENTALLY ILL PLEA AGREEMENT
I hereby agree to plead
guilty or guilty but mentally ill to: (List charges to which defendant is
pleading guilty or guilty but mentally ill), as more fully alleged in the
charging document attached hereto as Exhibit 1.
My decision to plead guilty
or guilty but mentally ill 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 or guilty but mentally ill 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 or guilty but mentally ill 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 or guilty but mentally ill 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 relating 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 or
guilty but mentally ill. (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
or guilty but mentally ill, 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 or guilty but mentally ill 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 or guilty but
mentally ill 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 or guilty but mentally ill 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 or guilty but mentally ill 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 or guilty but
mentally ill as provided in this agreement.
(b) Executed this
agreement and will enter all guilty or guilty but mentally ill 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; 2007, 1406)
NRS 174.065 When plea may specify degree of crime or punishment. Except as otherwise provided in NRS 174.061:
1. On a plea of guilty or guilty but
mentally ill 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 or guilty but
mentally ill 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; 2007, 1409)
PLEADINGS AND MOTIONS BEFORE TRIAL; DEFENSES AND OBJECTIONS
NRS 174.075 Pleadings and motions.
1. Pleadings in criminal proceedings are
the indictment, the information and, in justice court, the complaint, and the
pleas of guilty, guilty but mentally ill, not guilty, not guilty by reason of
insanity and nolo contendere.
2. All other pleas, 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; 2007, 1409)
NRS 174.085 Proceedings not constituting acquittal; effect of acquittal on
merits; proceedings constituting bar to another prosecution; retrial after
discharge of jury; effect of voluntary dismissal.
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, the defendant 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 the defendant 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 the prosecuting attorney 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 the defendant 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 the prosecuting attorney 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)
NRS 174.095 Defenses and objections which may be raised by motion. 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)
NRS 174.098 Motion to declare that defendant is intellectually disabled:
When authorized; procedure.
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
the defendant is intellectually disabled.
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 intellectual disability; and
(b) Hold a hearing within a reasonable time
before the trial to determine whether the defendant is intellectually disabled.
3. The court shall order the defendant to:
(a) Provide evidence which demonstrates that the
defendant is intellectually disabled 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 intellectually
disabled 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 intellectually disabled; and
(b) The defendant has the burden of proving by a
preponderance of the evidence that the defendant is intellectually disabled.
6. If the court determines based on the
evidence presented at a hearing conducted pursuant to subsection 2 that the
defendant is intellectually disabled, 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 pursuant to NRS
177.015.
7. For the purposes of this section,
“intellectually disabled” 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; A 2013, 684, 1752)
NRS 174.105 Defenses and objections which must be raised by motion.
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)
NRS 174.115 Time of making motion. 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)
NRS 174.125 Certain motions required to be made before trial.
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)
NRS 174.135 Hearing on motion.
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)
NRS 174.145 Effect of determination.
1. If a motion is determined adversely to
the defendant, the defendant shall be permitted to plead if the defendant 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
the defendant’s 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
NRS 174.155 Trial together of indictments or informations. 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)
NRS 174.165 Relief from prejudicial joinder.
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
NRS 174.171 Applicability. 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)
NRS 174.175 When taken.
1. If it appears that a prospective
witness is an older person or a vulnerable person or may be unable to attend or
prevented from attending a trial or hearing, that the witness’s testimony is
material and that it is necessary to take the witness’s 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 the witness’s 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 motion is for
the deposition of an older person or a vulnerable person, the court may enter
an order to take the deposition only upon good cause shown to the court. 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 or her.
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 the
witness’s 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.
4. As used in this section:
(a) “Older person” means a person who is 70 years
of age or older.
(b) “Vulnerable person” has the meaning ascribed
to it in subsection 7 of NRS 200.5092.
(Added to NRS by 1967, 1418; A 2009, 2552)
NRS 174.185 Notice of taking. 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)
NRS 174.195 Defendant’s counsel and payment of expenses. If a defendant is without counsel the court
shall advise the defendant of his or her right and assign counsel to represent
the defendant 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)
NRS 174.205 How taken. 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)
NRS 174.215 Use of deposition.
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 the party 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)
NRS 174.225 Objections to admissibility. 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
NRS 174.227 Videotaped depositions: Order of court; notice to parties;
cross-examination; use.
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;
(b) A prospective witness in any criminal
prosecution if the witness is less than 14 years of age; or
(c) A victim of sex trafficking as that term is
defined in subsection 2 of NRS 201.300.
There is a rebuttable presumption that good cause exists where the district
attorney seeks to take the deposition of a person alleged to be the victim of
sex trafficking.
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 the
party 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; 2013, 2419)
NRS 174.228 Videotaped depositions: Use. 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 the case of a victim of sex
trafficking as that term is defined in subsection 2 of NRS 201.300:
(a) Before the deposition is taken, a hearing is
held by a justice of the peace or district judge and the justice or judge finds
that cause exists pursuant to paragraph (c) of subsection 1 of NRS 174.227; and
(b) Before allowing the videotaped deposition to
be used at trial, the court finds that the victim is unavailable as a witness.
3. 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 the
accused 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; A 2013, 2420)
NRS 174.229 Videotaped testimony. 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)
NRS 174.231 Effect of NRS 174.227, 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 or her videotaped deposition
or testimony.
(Added to NRS by 1985, 1424; A 1993, 252)
DISCOVERY AND INSPECTION
NRS 174.233 Disclosure by defendant of intent to claim alibi; defendant to
disclose list of alibi witnesses; prosecuting attorney to disclose list of
rebuttal witnesses; continuing duty to disclose; sanctions.
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 or her 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 the
defendant’s 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
the defendant’s attorney, the names and last known addresses of the witnesses
by whom the defendant 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. 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 the defendant’s 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)
NRS 174.234 Reciprocal disclosure of lists of witnesses and information
relating to expert testimony; continuing duty to disclose; protective orders;
sanctions.
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
the 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 the party 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 the party’s 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)
NRS 174.235 Disclosure by prosecuting attorney of evidence relating to
prosecution; limitations.
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)
NRS 174.245 Disclosure by defendant of evidence relating to defense;
limitations.
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 the defendant’s 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)
NRS 174.275 Protective orders. 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)
NRS 174.285 Time limits.
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)
NRS 174.295 Continuing duty to disclose; failure to comply; sanctions.
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, the party shall promptly notify the other party or the other party’s
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
NRS 174.305 Subpoena for attendance of witnesses; form; issuance. 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 the justice of the peace under the seal of
the court.
(Added to NRS by 1967, 1420; A 1967, 1367; 1987, 124)
NRS 174.315 Issuance of subpoena by prosecuting attorney or attorney for
defendant; promise to appear; informing witness of general nature of grand
jury’s inquiry; calendaring of certain subpoenas.
1. A prosecuting attorney may issue
subpoenas subscribed by the prosecuting attorney for witnesses within the
State, in support of the prosecution or whom a grand jury may direct to appear
before it, upon any investigation pending before the grand jury.
2. A prosecuting attorney or an attorney
for a defendant may issue subpoenas subscribed by the issuer for:
(a) Witnesses within the State to appear before
the court at which a preliminary hearing is to be held or 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 or herself 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 the person as the witness subpoenaed;
and
(c) Execute a certificate of service containing
the information set forth in paragraphs (a) and (b).
4. A peace officer may accept delivery of
a subpoena in lieu of service, via electronic means, by providing a written
promise to appear that is transmitted electronically by any appropriate means,
including, without limitation, by electronic mail transmitted through the
official electronic mail system of the law enforcement agency which employs the
peace officer.
5. A 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.
6. Any subpoena issued by an attorney for
a defendant for a witness to appear before the court at which a preliminary
hearing is to be held must be calendared by filing a motion that includes a
notice of hearing setting the matter for hearing not less than 2 full judicial
days after the date on which the motion is filed. A prosecuting attorney may
oppose the motion orally in open court. A subpoena that is properly calendared
pursuant to this subsection may be served on the witness unless the court
quashes the subpoena.
(Added to NRS by 1967, 1368; A 1979, 130; 1985, 573; 1989, 685; 1991, 302; 1993, 118; 2013, 1202)
NRS 174.325 Production of prisoner as witness.
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 the
judge’s discretion, at the expense of the defendant.
(Added to NRS by 1967, 1420)
NRS 174.335 Subpoena for production of documentary evidence and of objects.
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)
NRS 174.345 Service of subpoena.
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. Except as otherwise provided in NRS 289.027, 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 the person 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; 2007, 2816)
NRS 174.365 Place of service. 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)
NRS 174.375 Subpoena for taking depositions; place of examination.
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 the resident
resides or is employed or transacts business in person. A nonresident of this
state may be required to attend only in the county where the nonresident 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)
NRS 174.385 Contempt. Failure
by any person without an adequate excuse to obey a subpoena of a court, a
prosecuting attorney or an attorney for a defendant served upon the person or,
in the case of a subpoena issued by a prosecuting attorney or an attorney for a
defendant, delivered to the person 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 or an attorney for a defendant, of the court in which
a preliminary hearing is to be held, an investigation is pending or an
indictment, information or complaint is to be tried.
(Added to NRS by 1967, 1421; A 1979, 130; 1995, 1082; 2013, 1203)
ATTENDANCE OF WITNESSES OUTSIDE STATE (UNIFORM ACT)
NRS 174.395 Short title. 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)
NRS 174.405 Definitions. 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)
NRS 174.415 Summoning witness in this State to testify in another state.
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 the person’s 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 the
witness protection from arrest and the service of civil and criminal process,
the judge 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 the witness’s attendance in the requesting state,
such judge may, in lieu of notification of the hearing, direct that such
witness be forthwith brought before the judge 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
subsistence and travel expenses, fails without good cause to attend and testify
as directed in the summons, the witness 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)
NRS 174.425 Witness from another state summoned to testify in this State.
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 the witness’s 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 the witness is entitled to receive the amount
required by NRS 50.225 for 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, the
witness 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)
NRS 174.435 Exemption from arrest and service of process.
1. If a person comes into this state in
obedience to a summons directing the person to attend and testify in this state
the person 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 the person’s 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, the person 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 the person’s entrance
into this state under the summons.
(Added to NRS by 1967, 1423)
NRS 174.445 Uniformity of interpretation. 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
NRS 174.455 Ground for removal; application not to be granted until after
voir dire examination; appeal of order changing or refusing to change place of
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)
NRS 174.464 Application for removal: Making and service; hearing and
determination in absence of defendant.
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 the defendant cannot safely appear in person to make such
application, because popular prejudice is so great as to endanger the
defendant’s personal safety, and such statement is sustained by other testimony,
such application may be made by the defendant’s attorney and must be heard and
determined in the absence of the defendant, notwithstanding the charge then
pending against the defendant be a felony, and the defendant 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)
NRS 174.475 Order transferring action: When to be made. 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)
NRS 174.485 Entry of order of removal; transmittal of papers. 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)
NRS 174.495 Proceedings on removal when defendant is in custody. If the defendant is in custody, the order must
direct the defendant’s removal and the defendant must be forthwith removed by
the sheriff of the county where the defendant is imprisoned, to the custody of
the sheriff of the county to which the action is removed.
(Added to NRS by 1967, 1423)
NRS 174.505 Authority of court to which action is removed; transmission of
original papers. 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
NRS 174.511 Right of State to trial within 60 days after arraignment;
exceptions. The State, upon
demand, has the right to a trial of the defendant within 60 days after
arraignment. The court may postpone the trial if:
1. It finds that more time is needed by
the defendant to prepare a 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)
NRS 174.515 Postponement: When and how ordered; court may require
depositions of and undertakings by witnesses; court may consider adverse effect
upon child who is victim or witness.
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 the witness’s
attendance may be discharged on the witness’s own recognizance, upon giving a
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)
NRS 174.519 Request for preference in setting date for trial where child is
victim or witness; court may consider effect on child of delay in commencement
of trial. 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)
