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)
Notes of Decisions
Cited in
19
cases (
4 in the last 5 years), 2006–2023 · leading case:
Ybarra v. State, 247 P.3d 269 (Nev. 2011).
Ybarra v. State, 247 P.3d 269 (Nev. 2011).
· cites it 17× “The Nevada Legislature accomplished that task with the passage of NRS 174.098, which sets forth the procedure for raising mental retardation in a capital case and defines “mentally retarded.”
Hall v. Florida, 134 S. Ct. 1986 (2014).
“11, § 4209 (2007); Idaho Code § 19 -2515A ; Nev.Rev.Stat. § 174.098 (2013); Va.Code Ann.”
State v. Grell, 135 P.3d 696 (Ariz. 2006).
· cites it 2× “[7] The following statutes, passed in 2003 after Atkins, impose a preponderance standard: Cal.”
Commonwealth v. Sanchez, 36 A.3d 24 (Pa. 2011).
“135 (requiring defendant to file a motion thirty days before trial); Nev.Rev.Stat. § 174.098 (requiring defendant to file a notice not less than 10 days before the start of trial and providing that the court must stay the proceedings pending a pretrial judge-made determination…”
Roosevelt Arthur Williams v. State of Arizona, 303 P.3d 532 (Ariz. Ct. App. 2013).
· cites it 2× “6 (E) of MR at IQ of (death penalty no longer 70 available in New Mexico) NV Yes Yes No No “Develop- Nev. Rev. Stat. § 174.098 (7) mental period” NY Yes Yes No No 18 N.”
Robert Ybarra, Jr. v. William Gittere, 69 F.4th 1077 (9th Cir. 2023).
· cites it 4× “Nev. Rev. Stat. § 174.098 (1), (6). “The defendant has the burden of proving by a preponderance of the evidence that the defendant is intellectually disabled.”
United States v. Nelson, 419 F. Supp. 2d 891 (E.D. La. 2006).
“1); Nevada (Nev.Rev. Stat. § 174.098); New York (N.Y.”
Thomas v. Neven (D. Nev. 2020).
· cites it 10× “Two years later, in 2003, the Nevada Legislature 5 added NRS § 174.098. At the time of Thomas’ crime and conviction, NRS § 174.”
Robert Ybarra, Jr. v. William Gittere (D. Nev. 2020).
· cites it 10× “(quoting Nev. Rev. Stat. § 174.098 (7)). 13 As a matter of first impression, the state district court determined that “the developmental 14 period is up to age 18.”
State v. Covington (Eric) (Nev. 2019).
· cites it 4× “125(1); see NRS 174.098(2) (requiring district court to stay proceedings and hold an evidentiary hearing when defendant asserts intellectual disability to strike death penalty).”
Bean (Jerimiah) Vs. State (Death Penalty-Direct) (Nev. 2019).
· cites it 2× “Developmental Disabilities, Intellectual Disability: SUPREME COURT OF NEVADA 2 (0) 1947A 4W, Definition, Classification, and Systems of Supports 5 (11th ed. 2010) [hereinafter AAIDD-11].”
Guzman (Wilber) Vs. Dist. Ct. (State) (Nev. 2021).
· cites it 2× “ORDER DENYING PETITION This original petition for a writ of mandamus challenges a district court order setting a deadline for an NRS 174.098 motion that is more than 10 days before the scheduled trial date.”
— Nev. Rev. Stat. § 174.098(1) — 2 cases
Ybarra v. State, 247 P.3d 269 (Nev. 2011).
“The Nevada Legislature accomplished that task with the passage of NRS 174.098, which sets forth the procedure for raising mental retardation in a capital case and defines “mentally retarded.”
Thomas v. Neven (D. Nev. 2020).
“Two years later, in 2003, the Nevada Legislature 5 added NRS § 174.098. At the time of Thomas’ crime and conviction, NRS § 174.”
— Nev. Rev. Stat. § 174.098(2) — 2 cases
Ybarra v. State, 247 P.3d 269 (Nev. 2011).
“The Nevada Legislature accomplished that task with the passage of NRS 174.098, which sets forth the procedure for raising mental retardation in a capital case and defines “mentally retarded.”
State v. Covington (Eric) (Nev. 2019).
“125(1); see NRS 174.098(2) (requiring district court to stay proceedings and hold an evidentiary hearing when defendant asserts intellectual disability to strike death penalty).”
— Nev. Rev. Stat. § 174.098(5)(b) — 4 cases
Ybarra v. State, 247 P.3d 269 (Nev. 2011).
“The Nevada Legislature accomplished that task with the passage of NRS 174.098, which sets forth the procedure for raising mental retardation in a capital case and defines “mentally retarded.”
State v. Covington (Eric) (Nev. 2019).
“125(1); see NRS 174.098(2) (requiring district court to stay proceedings and hold an evidentiary hearing when defendant asserts intellectual disability to strike death penalty).”
Bean (Jerimiah) Vs. State (Death Penalty-Direct) (Nev. 2019).
“Developmental Disabilities, Intellectual Disability: SUPREME COURT OF NEVADA 2 (0) 1947A 4W, Definition, Classification, and Systems of Supports 5 (11th ed. 2010) [hereinafter AAIDD-11].”
Robert Ybarra, Jr. v. William Gittere (D. Nev. 2020).
“(quoting Nev. Rev. Stat. § 174.098 (7)). 13 As a matter of first impression, the state district court determined that “the developmental 14 period is up to age 18.”
— Nev. Rev. Stat. § 174.098(7) — 3 cases
Ybarra v. State, 247 P.3d 269 (Nev. 2011).
“The Nevada Legislature accomplished that task with the passage of NRS 174.098, which sets forth the procedure for raising mental retardation in a capital case and defines “mentally retarded.”
State v. Covington (Eric) (Nev. 2019).
“125(1); see NRS 174.098(2) (requiring district court to stay proceedings and hold an evidentiary hearing when defendant asserts intellectual disability to strike death penalty).”
Thomas v. Neven (D. Nev. 2020).
“Two years later, in 2003, the Nevada Legislature 5 added NRS § 174.098. At the time of Thomas’ crime and conviction, NRS § 174.”
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