The Nevada Assembly is currently considering a very troubling bill masked as a “victim’s rights” bill. Assembly Bill 193 would make hearsay admissible as evidence during the preliminary hearing. During the preliminary hearing, a Justice Court determines whether probable cause exists to pursue charges against the defendant. Assembly Bill 193 goes against a core principle of American criminal jurisprudence, that a person is innocent until proven guilty. If passed, it will result in prosecutions proceeding to District Court with weak and insufficient evidence.
Under Nevada Revised Statutes 51.035, hearsay is, at its core, any statement offered into evidence to prove the truth of that matter asserted that is not made during testimony at the trial or hearing. Chapter 51 lists several ways that such a statement may not be hearsay or may meet an exception to the hearsay rule, such as that the person making the statement is now deceased and the nature of and circumstances surrounding the statement assure its accuracy. Generally, hearsay is not admissible during many important stages of a criminal trial, including, under current law, the preliminary hearing.
Under the hearsay rule, most statements in a criminal trial that are offered against the accused must be made by the person saying them in court, in front of the person being accused and his or her attorney, and under oath. A witness may then be subject to cross-examination, in which the defense lawyer can challenge the accuracy and veracity of the statements being offered into evidence.
During a preliminary hearing, the prosecutor presents evidence that shows probable cause, the necessary standard to pursue criminal charges against a person. Probable cause, in this case, means that, based on facts, a reasonably prudent person who have sufficient reason to believe that, more likely than not, the person charged committed the crime. If the Justice of the Peace finds that probable cause exists, the charges will be bound to District Court for arraignment.
In many criminal proceedings, the testimony of witnesses – often including the alleged victim – is a core part of the prosecutor’s case. The hearsay rule requires those statements to be made in the Justice Court in order for them to be admissible for consideration into whether probable cause exists under most circumstances.
Assembly Bill 193 would erase that requirement. Prosecutors would be able to read statements from witnesses, rather than have the witness testify in court and be subject to cross-examination.
The bill is ostensibly to save victims of sexual assault and other violent offenses the trauma of having to attend the hearing and testify. However, the preliminary hearing serves as an important check on prosecutors. The most interesting aspect about the bill is that the people pushing the bill, namely the prosecutors, have another remedy at law to “save victims” from having to testify, and that is the Grand Jury. Yet the prosecutors rarely take cases with these victims to the Grand Jury. Why? Because it takes a little more time to prepare and get time before a Grand Jury. If the prosecutors were really, truly concerned with the victims then why are they not using this remedy more? Because this bill is about a power grab of Nevadan’s rights.
If this bill passes, preliminary hearings will be virtually a farce. Protecting victims should not come at the expense of forcing people presumed innocent into an unnecessary arraignment and trial. The Legislature would be wise to vote this bill down.