What are the Prosecutorial Duties to Disclose Evidence in Nevada?
Full Question:
Answer:
As to expert witness testimony, the prosector must provide a brief statement regarding the subject matter on which the expert witness is expected to testify and the substance of his 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.
The prosecutor must also provide on request results or reports of physical or mental examinations, scientific tests or scientific experiments made in connection with the particular
case, books, papers, documents, tangible objects, or copies thereof the prosecution intends to introduce at trial.
The defendant is not entitled 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.
The prosecutor must also turn over evidence which is potentially exculpatory, meaning it would tend to prove the innocence of the defendant. However, the prosecution has no obligation to produce evidence or information already known to the defendant, or that could be obtained through the defendant's exercise of reasonable diligence
If the information has been subpoenaed form the prosecutor's office is suspecterd of being inaccurate, it is possible that the records may be requested by the defense attorney directly from the coroner's office or other authority.
For further discussion, please see:
http://truthinjustice.org/nevadausatty.htm
http://www.citizensforethics.org/node/38949
http://standdown.typepad.com/weblog/prosecutorial_misconduct/
The following are NV Rules of Ethics governing attorneys:
Rule 1.4. Communication.
(a) A lawyer shall:
(1) Promptly inform the client of any decision or circumstance with respect to which the client’s informed consent is required by these Rules;
(2) Reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) Keep the client reasonably informed about the status of the matter;
(4) Promptly comply with reasonable requests for information; and
(5) Consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
Rule 3.8. Special Responsibilities of a Prosecutor. The prosecutor in a criminal case shall:
(a) Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) Make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) Not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) Make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
(e) Not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) The information sought is not protected from disclosure by any applicable privilege;
(2) The evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) There is no other feasible alternative to obtain the information;
(f) Except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
Please see the following NV statutes:
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 his 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 he 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 his 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.
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.
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, he shall promptly notify the other party or his
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.