Nevada Evidence Distinctions Flashcards
Domestic Violence
In criminal cases
Evidence of instances of DV or expert testimony concerning the effect of DV on the alleged victim
May be admissible for any relevant purpose, such as to show the victims state of mind or that the victim acted in self defense.
However expert testimony concerning the effect of DV is not admissible against the defendant to prove the occurrence of an act that forms the basis of a criminal charge against the defendant. (e.g. victimized spouse kills abusive husband)
Rule 403
In Nevada a court MUST exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, or misleading the jury.
The court MAY exclude evidence if its value is substantially outweighed by waste of time, undue delay, or cumulativeness.
Subsequent Remedial Measures
Nevada does not exclude evidence of subsequence remedial measures in strict products liability cases.
Withdrawn Guilty Pleas
In Nevada, withdrawn guilty pleas or guilty but mentally ill pleas and offers to plead the same are inadmissible in criminal proceedings involving the person that made the offer but are admissible in civil proceedings.
Nolo contendere pleas and offers of the same and not admissible in any proceedings.
Character Evidence of Victim
In Nevada, if the defendant introduces bad character traits of the victim, he does not open the door for the prosecution to admit his same propensity for that trait.
The prosecution may rebut will evidence of the victim’s good character though.
Victim’s Character for Peacefulness
Nevada does not allow evidence of the victim’s character for peacefulness to rebut a self-defense claim.
Rape Shield
Nevada’s rape shield law is limited to criminal cases.
Furthermore, in criminal cases, the victim’s sexual behavior may be admitted if the court finds its relevance outweighs its risk of prejudice.
Petrocelli Hearings
Before admitting evidence of prior bad acts, the court must, outside the presence of a jury, determine that
the evidence is relevant
that the prior bad act is proven by clear and convincing evidence
that the danger of unfair prejudice does not substantially outweigh the evidence’s probative value.
Prior Acts of Sex Assault/Child Molestation
In a criminal prosecution for a sexual offense, evidence the defendant has committed other sexual crimes is admissible.
However, in civil cases, this does not apply unless independently relevant under MIMIC.
Best Evidence Rule
In Nevada, the records of a casino, hotel, or bank may be proved by a copy of the record if authenticated by a custodian of the record in a signed affidavit.
Hypnosis
In Nevada, testimony of a witness who has undergone hypnosis to recall events for trial is only admissible if:
the witness gave informed consent
the hypnotist was qualified
the session was electronically recorded
The court may still determine the testimony is unreliable and MUST caution the jury regarding the evidence if admitted.
Expert Witness Testimony
Nevada does not require the Daubert approach and instead favors a more flexible standard which puts the court in a gatekeeping role.
Prior Inconsistent Statements
A prior inconsistent statement is admissible as substantive evidence in Nevada, even if it was not made under oath.
Witness Convictions
In Nevada, a witness may be impeached only with prior felonies. There are no special rules for felonies involving dishonesty. The court has discretion to bar impeachment by prior felonies. Also, the felony or release must have been within the last ten years.
Misdemeanors involving dishonesty may be admissible as prior bad acts. Thus the witness may be questioned about them, but extrinsic evidence is not permitted.
Opinion Evidence for Truthfulness
In Nevada, evidence of a witness’s reputation for truthfulness is inadmissible, only opinion evidence is allowed.
Attorney-Client Privilege
Nevada also specifically covers communications between co-defendant counsel.
Therapist-Patient Privilege
Recognized unless there is a threat that the patient will harm themselves or others.
Spousal Immunity
Does not apply to events that took place before the marriage.
Marital Privilege
Does not apply to commitment and competency hearings involving a spouse.
Journalist Privilege
Protects published and unpublished information. The privilege is not limited to confidential sources and therefore the journalist does not waive the privilege by voluntarily publishing or disclosing the privileged information.
Teacher-Pupil Privilege
Communications by a pupil to her teacher concerning the pupil’s possession or use of drugs or alcohol may not be disclosed without the pupil’s consent in any case where the pupil is a party.
Hearsay Prior Inconsistent Statements by Witness
A witness’s prior inconsistent statement is not hearsay even if it was not made under oath.
Prior Statements by Witness Given Under Oath
A transcript of testimony given under oath at trial, hearing, or grand jury is considered nonhearsay if the declarant testifies at the current trial and is subject to cross.
Former Testimony Same Proceeding
In Nevada, testimony from another HEARING in the same proceeding is admissible if the declarant is unavailable.
Testimony from a DEPO in the same proceeding is available if the declarant is unavailable or lives more than 100 miles from the courthouse.
Former Testimony Different Proceeding
Testimony given by a witness at a hearing or depo in a different proceeding is admissible if:
the declarant is unavailable
the party against whom the testimony is offered was a party or is in privity with a party from the former hearing
the issues are substantially the same
Statements Against Interest
in Nevada, a statement can be against interest if it subjects the speaker to social ridicule or disapproval or hatred.
Dying Declarations
Applies in all civil and criminal cases in Nevada
It need not concern the cause or circumstances of the impending death.
Learned Treatises
In Nevada, a statement from a learned treatise is actually admitted into evidence, not merely read into the record.
Hearsay Catch-All
In Nevada, a hearsay statement may be admissible is
its nature and the special circumstances under which it was made offer strong assurances of its accuracy
and the declarant is unavailable
