Petrocelli hearing in Nevada

2017The district court held a Petrocelli hearing prior to trial, see Petrocelli v. State, 101 Nev. 46 , 692 P.2d 503 (1985).

2017The district court held a Petrocelli hearing prior to trial, see Petrocelli v. State, 101 Nev. 46 , 692 P.2d 503 (1985).

2024However, before a district court can admit other bad act evidence, it must first conduct a Petrocelli hearing outside the presence of the jury and determine that "(1) the incident is relevant to the crime charged; (2) the act is proven by clear and convincing evidence; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice." Tinch v. State, 113 Nev. 1170, 1176 , 946 P.2d 1061, 1064-65 (1997), holding modified by Bigpond v. State, 128 Nev. 108 , 270 P.3d. 1244 (2012); Tavares v. State, 117 Nev. 725, 731 , 30 P.3d 1128, 1131 (2001), holding

2024However, before a district court can admit other bad act evidence, it must first conduct a Petrocelli hearing outside the presence of the jury and determine that "(1) the incident is relevant to the crime charged; (2) the act is proven by clear and convincing evidence; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice." Tinch v. State, 113 Nev. 1170, 1176 , 946 P.2d 1061, 1064-65 (1997), holding modified by Bigpond v. State, 128 Nev. 108 , 270 P.3d. 1244 (2012); Tavares v. State, 117 Nev. 725, 731 , 30 P.3d 1128, 1131 (2001), holding

2020See Qualls v. State, 114 Nev. 900, 903, 961 P.2d 765, 767 (1998) (providing that "a rule of automatic reversal for failure to conduct a proper Petrocelli hearing, regardless of a lack of prejudicial effect caused by the admission of the evidence, cannot be justified").

2020See Qualls v. State, 114 Nev. 900, 903, 961 P.2d 765, 767 (1998) (providing that "a rule of automatic reversal for failure to conduct a proper Petrocelli hearing, regardless of a lack of prejudicial effect caused by the admission of the evidence, cannot be justified").

2024However, before a district court can admit other bad act evidence, it must first conduct a Petrocelli hearing outside the presence of the jury and determine that "(1) the incident is relevant to the crime charged; (2) the act is proven by clear and convincing evidence; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice." Tinch v. State, 113 Nev. 1170, 1176 , 946 P.2d 1061, 1064-65 (1997), holding modified by Bigpond v. State, 128 Nev. 108 , 270 P.3d. 1244 (2012); Tavares v. State, 117 Nev. 725, 731 , 30 P.3d 1128, 1131 (2001), holding

2024However, before a district court can admit other bad act evidence, it must first conduct a Petrocelli hearing outside the presence of the jury and determine that "(1) the incident is relevant to the crime charged; (2) the act is proven by clear and convincing evidence; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice." Tinch v. State, 113 Nev. 1170, 1176 , 946 P.2d 1061, 1064-65 (1997), holding modified by Bigpond v. State, 128 Nev. 108 , 270 P.3d. 1244 (2012); Tavares v. State, 117 Nev. 725, 731 , 30 P.3d 1128, 1131 (2001), holding

2015Qualls v. State, 114 Nev. 900, 904 , 961 P.2d 765, 767 (1998) ("[T]he trial court's failure to conduct a Petrocelli hearing prior to admitting this evidence amounted to harmless error."); see also Petrocelli v. State, 101 Nev. 46, 51 , 692 P.2d 503, 507 (1985), superseded in part by statute as stated in Thomas v. State, 120 Nev. 37, 45 , 83 P.3d 818, 823 (2004) (approving the procedure followed by the district court prior to allowing questions pertaining to a collateral offense).

2015Qualls v. State, 114 Nev. 900, 904 , 961 P.2d 765, 767 (1998) ("[T]he trial court's failure to conduct a Petrocelli hearing prior to admitting this evidence amounted to harmless error."); see also Petrocelli v. State, 101 Nev. 46, 51 , 692 P.2d 503, 507 (1985), superseded in part by statute as stated in Thomas v. State, 120 Nev. 37, 45 , 83 P.3d 818, 823 (2004) (approving the procedure followed by the district court prior to allowing questions pertaining to a collateral offense).

2024However, before a district court can admit other bad act evidence, it must first conduct a Petrocelli hearing outside the presence of the jury and determine that "(1) the incident is relevant to the crime charged; (2) the act is proven by clear and convincing evidence; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice." Tinch v. State, 113 Nev. 1170, 1176 , 946 P.2d 1061, 1064-65 (1997), holding modified by Bigpond v. State, 128 Nev. 108 , 270 P.3d. 1244 (2012); Tavares v. State, 117 Nev. 725, 731 , 30 P.3d 1128, 1131 (2001), holding

2024However, before a district court can admit other bad act evidence, it must first conduct a Petrocelli hearing outside the presence of the jury and determine that "(1) the incident is relevant to the crime charged; (2) the act is proven by clear and convincing evidence; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice." Tinch v. State, 113 Nev. 1170, 1176 , 946 P.2d 1061, 1064-65 (1997), holding modified by Bigpond v. State, 128 Nev. 108 , 270 P.3d. 1244 (2012); Tavares v. State, 117 Nev. 725, 731 , 30 P.3d 1128, 1131 (2001), holding

2024See Carter v. State, 121 Nev. 759, 769 , 121 P.3d 592, 599 (2005) (holding that the defense elicited the bad act testimony and was “estopped from raising any objection on appeal”); Taylor, 109 Nev. at 856-57 , 858 P.2d at 848 .

2024See Carter v. State, 121 Nev. 759, 769 , 121 P.3d 592, 599 (2005) (holding that the defense elicited the bad act testimony and was “estopped from raising any objection on appeal”); Taylor, 109 Nev. at 856-57 , 858 P.2d at 848 .

2020See Bellon v. State, 121 Nev. 436, 444 , 117 P.3d 176, 180 (2005) (indicating that the district court is not required to hold a Petrocelli hearing when it admits res gestae evidence).

2020See Bellon v. State, 121 Nev. 436, 444 , 117 P.3d 176, 180 (2005) (indicating that the district court is not required to hold a Petrocelli hearing when it admits res gestae evidence).

2015McNelton v. State, 115 Nev. 396, 405 , 990 P.2d 1263, 1269 (1999).

2015McNelton v. State, 115 Nev. 396, 405 , 990 P.2d 1263, 1269 (1999).

2024However, before a district court can admit other bad act evidence, it must first conduct a Petrocelli hearing outside the presence of the jury and determine that "(1) the incident is relevant to the crime charged; (2) the act is proven by clear and convincing evidence; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice." Tinch v. State, 113 Nev. 1170, 1176 , 946 P.2d 1061, 1064-65 (1997), holding modified by Bigpond v. State, 128 Nev. 108 , 270 P.3d. 1244 (2012); Tavares v. State, 117 Nev. 725, 731 , 30 P.3d 1128, 1131 (2001), holding

2024However, before a district court can admit other bad act evidence, it must first conduct a Petrocelli hearing outside the presence of the jury and determine that "(1) the incident is relevant to the crime charged; (2) the act is proven by clear and convincing evidence; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice." Tinch v. State, 113 Nev. 1170, 1176 , 946 P.2d 1061, 1064-65 (1997), holding modified by Bigpond v. State, 128 Nev. 108 , 270 P.3d. 1244 (2012); Tavares v. State, 117 Nev. 725, 731 , 30 P.3d 1128, 1131 (2001), holding

2024However, the "failure to conduct a Petrocelli hearing is not reversible error when the record is sufficient to establish that the evidence is admissible under [Tinch] or the trial result would have been the same had the trial court excluded the evidence." Diornarnpo v. State, 124 Nev. 414, 430 , 185 P.3d 1031, 1041 (2008).

2024However, the "failure to conduct a Petrocelli hearing is not reversible error when the record is sufficient to establish that the evidence is admissible under [Tinch] or the trial result would have been the same had the trial court excluded the evidence." Diornarnpo v. State, 124 Nev. 414, 430 , 185 P.3d 1031, 1041 (2008).

2019Still, Franks' argument reveals a significant concern: although evidence of prior sexual acts no longer require a Petrocelli hearing prior to admission, the Legislature failed to outline any procedural safeguards to mitigate against "the risk that a jury will convict for crimes other than those charged-or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment." Old Chief v. United States, 519 U.S. 172 , 181, 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997) (internal quotation marks omitted).

2019Still, Franks' argument reveals a significant concern: although evidence of prior sexual acts no longer require a Petrocelli hearing prior to admission, the Legislature failed to outline any procedural safeguards to mitigate against "the risk that a jury will convict for crimes other than those charged-or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment." Old Chief v. United States, 519 U.S. 172 , 181, 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997) (internal quotation marks omitted).

2019Therefore, prior to its admission under NRS 48.045(3), the district court must determine that the prior bad sexual act is (1) relevant to the crime charged, (2) proven by a preponderance of the evidence, and (3) weighed to determine that its probative value is not substantially outweighed by the danger of unfair prejudice as articulated by United States v. LeMay , 260 F.3d 1018 , 1027-28 (9th Cir. 2001).

2019Therefore, prior to its admission under NRS 48.045(3), the district court must determine that the prior bad sexual act is (1) relevant to the crime charged, (2) proven by a preponderance of the evidence, and (3) weighed to determine that its probative value is not substantially outweighed by the danger of unfair prejudice as articulated by United States v. LeMay , 260 F.3d 1018 , 1027-28 (9th Cir. 2001).

2019See Valdez v. State, 124 Nev. 1172, 1188 , 196 P.3d 465, 476 (2008) (noting that the first step in analyzing prosecutorial misconduct claims is determining if the State's conduct was improper); Bahena, 126 Nev. at 256 - 57 & n.9, 235 P.3d at 601 & n.9; see also Ayala v. Chappell, 829 F.3d 1081, 1109 (9th Cir. 2016) (concluding that the defendant failed to prove that a State witness received benefits in exchange for testifying when the defendant presented no evidence to support his claim and the witness 2Davis states this was bad act evidence requiring a Petrocelli hearing, but does not develop

2019See Valdez v. State, 124 Nev. 1172, 1188 , 196 P.3d 465, 476 (2008) (noting that the first step in analyzing prosecutorial misconduct claims is determining if the State's conduct was improper); Bahena, 126 Nev. at 256 - 57 & n.9, 235 P.3d at 601 & n.9; see also Ayala v. Chappell, 829 F.3d 1081, 1109 (9th Cir. 2016) (concluding that the defendant failed to prove that a State witness received benefits in exchange for testifying when the defendant presented no evidence to support his claim and the witness 2Davis states this was bad act evidence requiring a Petrocelli hearing, but does not develop

2016See Ledbetter v. State, 122 Nev. 252, 259 , 129 P.3d 671, 677 (2006) (holding that the failure to hold a Petrocelli hearing and make factual findings does 101 Nev. 46 , 692 P.2d 503 (1985) (providing that 3Petrocelli v. State, the district court must hold a hearing when the State seeks to admit prior bad act evidence pursuant to NRS 48.045(2)).

2016See Ledbetter v. State, 122 Nev. 252, 259 , 129 P.3d 671, 677 (2006) (holding that the failure to hold a Petrocelli hearing and make factual findings does 101 Nev. 46 , 692 P.2d 503 (1985) (providing that 3Petrocelli v. State, the district court must hold a hearing when the State seeks to admit prior bad act evidence pursuant to NRS 48.045(2)).

2013Even if the district court does not conduct a Petrocelli hearing to review bad act evidence outside the presence of the jury, reversal is not mandated where: "(1) the record is sufficient for this court to determine that the evidence is admissible under the test for admissibility" established by Tinch v. State, 113 Nev. 1170, 1176 , 946 P.2d 1061, 1064-65 (1997); or (2) "the result would have been the same if the trial court had not admitted the evidence." Rhymes v. State, 121 Nev. 17, 22 , 107 P.3d 1278, 1281 (2005) (internal quotations omitted).

2013Even if the district court does not conduct a Petrocelli hearing to review bad act evidence outside the presence of the jury, reversal is not mandated where: "(1) the record is sufficient for this court to determine that the evidence is admissible under the test for admissibility" established by Tinch v. State, 113 Nev. 1170, 1176 , 946 P.2d 1061, 1064-65 (1997); or (2) "the result would have been the same if the trial court had not admitted the evidence." Rhymes v. State, 121 Nev. 17, 22 , 107 P.3d 1278, 1281 (2005) (internal quotations omitted).

2007We have considered these issues and conclude that they lack merit. 24 Ledbetter v. State, 122 Nev. 252, 264 , 129 P.3d 671, 680 (2006) (quoting Randolph v. State, 117 Nev. 970, 981 , 36 P.3d 424, 431 (2001)). 25 Jackson v. State, 116 Nev. 334 , 335-36, 997 P.2d 121, 122 (2000). 26 Ledbetter, 122 Nev. at 264-65 , 129 P.3d at 680 (quoting Carter v. State, 121 Nev. 759, 770 , 121 P.3d 592, 599 (2005)). 27 NRS 178.388(1). 28 Gallego v. State, 117 Nev. 348, 367-68 , 23 P.3d 227, 240 (2001). 29 Id. (quoting Kirksey v. State, 112 Nev. 980, 1000 , 923 P.2d 1102, 1115 (1996)). 30 Id. 31 See id. (holdin

2007We have considered these issues and conclude that they lack merit. 24 Ledbetter v. State, 122 Nev. 252, 264 , 129 P.3d 671, 680 (2006) (quoting Randolph v. State, 117 Nev. 970, 981 , 36 P.3d 424, 431 (2001)). 25 Jackson v. State, 116 Nev. 334 , 335-36, 997 P.2d 121, 122 (2000). 26 Ledbetter, 122 Nev. at 264-65 , 129 P.3d at 680 (quoting Carter v. State, 121 Nev. 759, 770 , 121 P.3d 592, 599 (2005)). 27 NRS 178.388(1). 28 Gallego v. State, 117 Nev. 348, 367-68 , 23 P.3d 227, 240 (2001). 29 Id. (quoting Kirksey v. State, 112 Nev. 980, 1000 , 923 P.2d 1102, 1115 (1996)). 30 Id. 31 See id. (holdin

1998See Meek v. State, 112 Nev. 1288, 1292-93 , 930 P.2d 1104, 1107-08 (1996); Armstrong, 110 Nev. at 1323-24 , 885 P.2d at 601 ; see also Walker v. State, 112 Nev. 819 , 921 P.2d 923 (1996) (trial court errs when it fails to conduct a Petrocelli hearing prior to admission of evidence of other bad acts).

1998See Meek v. State, 112 Nev. 1288, 1292-93 , 930 P.2d 1104, 1107-08 (1996); Armstrong, 110 Nev. at 1323-24 , 885 P.2d at 601 ; see also Walker v. State, 112 Nev. 819 , 921 P.2d 923 (1996) (trial court errs when it fails to conduct a Petrocelli hearing prior to admission of evidence of other bad acts).

1996The State cites Felder v. State, 107 Nev. 237 , 810 P.2d 755 , cert. denied, 502 U.S. 878 (1991), for the proposition that failure to hold a Petrocelli hearing is not necessarily reversible error.

1996The State cites Felder v. State, 107 Nev. 237 , 810 P.2d 755 , cert. denied, 502 U.S. 878 (1991), for the proposition that failure to hold a Petrocelli hearing is not necessarily reversible error.

2024The invited error doctrine "establish[es] that ordinarily inadmissible evidence may be rendered admissible when the complaining 8 Cornpare Evans v. State, 117 Nev. 609, 628 , 28 P.3d 498, 512 (2001) ("Evidence that after a crime a defendant threatened a witness with violence is directly relevant to the question of guilt.

2024The invited error doctrine "establish[es] that ordinarily inadmissible evidence may be rendered admissible when the complaining 8 Cornpare Evans v. State, 117 Nev. 609, 628 , 28 P.3d 498, 512 (2001) ("Evidence that after a crime a defendant threatened a witness with violence is directly relevant to the question of guilt.

2020Despite the States representations that Becky's death was not at issue and the district court's order to refer to her 5As discussed above, the record reflects that, at trial, the State presented extensive testimony regarding bad acts that went far beyond the offer of proof elicited from the testimony of the one witness from the Petrocelli hearing. 12 death as "the Utah case," the extensive discussion of the murder prosecution strongly implied that Randolph was wrongfully acquitted in the Utah case.6 The danger inherent in admitting prior-bad-act evidence "is particularly great where . . . the

2020Despite the States representations that Becky's death was not at issue and the district court's order to refer to her 5As discussed above, the record reflects that, at trial, the State presented extensive testimony regarding bad acts that went far beyond the offer of proof elicited from the testimony of the one witness from the Petrocelli hearing. 12 death as "the Utah case," the extensive discussion of the murder prosecution strongly implied that Randolph was wrongfully acquitted in the Utah case.6 The danger inherent in admitting prior-bad-act evidence "is particularly great where . . . the

2020See Marshall v. State, 118 Nev. 642, 646 , 56 P.3d 376, 378 (2002) (explaining that antagonistic defenses only require severance when the defenses are so irreconcilable that the jury accepting the codefendant's theory would prohibit the defendant's acquittal). 4 (determining "whether witnesses can describe the crime charged without referring to related uncharged acts" to decide whether to admit evidence under NRS 48.035(3)); see also Bellon v. State, 121 Nev. 436, 444 , 117 P.3d 176, 180 (2005) (indicating that the district court is not required to hold a Petrocelli hearing when it admits evid

2020See Marshall v. State, 118 Nev. 642, 646 , 56 P.3d 376, 378 (2002) (explaining that antagonistic defenses only require severance when the defenses are so irreconcilable that the jury accepting the codefendant's theory would prohibit the defendant's acquittal). 4 (determining "whether witnesses can describe the crime charged without referring to related uncharged acts" to decide whether to admit evidence under NRS 48.035(3)); see also Bellon v. State, 121 Nev. 436, 444 , 117 P.3d 176, 180 (2005) (indicating that the district court is not required to hold a Petrocelli hearing when it admits evid

2019See Valdez v. State, 124 Nev. 1172, 1188 , 196 P.3d 465, 476 (2008) (noting that the first step in analyzing prosecutorial misconduct claims is determining if the State's conduct was improper); Bahena, 126 Nev. at 256 - 57 & n.9, 235 P.3d at 601 & n.9; see also Ayala v. Chappell, 829 F.3d 1081, 1109 (9th Cir. 2016) (concluding that the defendant failed to prove that a State witness received benefits in exchange for testifying when the defendant presented no evidence to support his claim and the witness 2Davis states this was bad act evidence requiring a Petrocelli hearing, but does not develop

2019See Valdez v. State, 124 Nev. 1172, 1188 , 196 P.3d 465, 476 (2008) (noting that the first step in analyzing prosecutorial misconduct claims is determining if the State's conduct was improper); Bahena, 126 Nev. at 256 - 57 & n.9, 235 P.3d at 601 & n.9; see also Ayala v. Chappell, 829 F.3d 1081, 1109 (9th Cir. 2016) (concluding that the defendant failed to prove that a State witness received benefits in exchange for testifying when the defendant presented no evidence to support his claim and the witness 2Davis states this was bad act evidence requiring a Petrocelli hearing, but does not develop

2019See Maresca v. State, 103 Nev. 669, 673 , 748 P.2d 3, 6 (1987) (holding that it is appellanes responsibility to provide cogent argument).

2019See Maresca v. State, 103 Nev. 669, 673 , 748 P.2d 3, 6 (1987) (holding that it is appellanes responsibility to provide cogent argument).

2017"Failure to conduct a Petrocelli hearing on the record is grounds for reversal on appeal unless . . . the record is sufficient for this court to determine that the evidence is admissible under the test for admissibility of bad act evidence. . . ." King v. State, 116 Nev. 349 , 354, 998 P.2d 1172, 1175 (2000) (emphasis added).

2017"Failure to conduct a Petrocelli hearing on the record is grounds for reversal on appeal unless . . . the record is sufficient for this court to determine that the evidence is admissible under the test for admissibility of bad act evidence. . . ." King v. State, 116 Nev. 349 , 354, 998 P.2d 1172, 1175 (2000) (emphasis added).

2016See Blake v. State, 121 Nev. 779, 789 , 121 P.3d 567, 574 (2005) (holding that the requirements of Pet rocelli do not apply where the evidence was not admitted pursuant to NRS 48.045(2)).

2016See Blake v. State, 121 Nev. 779, 789 , 121 P.3d 567, 574 (2005) (holding that the requirements of Pet rocelli do not apply where the evidence was not admitted pursuant to NRS 48.045(2)).

2013A nonconstitutional error, such as the erroneous admission of evidence at issue here, is deemed harmless unless it had a “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” Tavares v. State, 117 Nev. 725, 732 , 30 P.3d 1128, 1132 (2001) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see also Fields v. State, 125 Nev. 776, 784-85 , 220 P.3d 724, 729-30 (2009) (reviewing erroneous admission of evidence, pursuant to NRS 48.045, as nonconstitutional error); Richmond v. State, 118 Nev. 924, 934 , 59 P.3d 1249, 1255-56 (2002) (reviewing the failure

2013A nonconstitutional error, such as the erroneous admission of evidence at issue here, is deemed harmless unless it had a “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” Tavares v. State, 117 Nev. 725, 732 , 30 P.3d 1128, 1132 (2001) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see also Fields v. State, 125 Nev. 776, 784-85 , 220 P.3d 724, 729-30 (2009) (reviewing erroneous admission of evidence, pursuant to NRS 48.045, as nonconstitutional error); Richmond v. State, 118 Nev. 924, 934 , 59 P.3d 1249, 1255-56 (2002) (reviewing the failure