Nev. Rev. Stat. » NRS: CHAPTER 51 - HEARSAY

Nev. Rev. Stat. § 51.055

“Unavailable as a witness” defined

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NRS 51.055  “Unavailable as a witness” defined.

      1.  A declarant is “unavailable as a witness” if the declarant is:

      (a) Exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of the declarant’s statement;

      (b) Persistent in refusing to testify despite an order of the judge to do so;

      (c) Unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

      (d) Absent from the hearing and beyond the jurisdiction of the court to compel appearance and the proponent of the declarant’s statement has exercised reasonable diligence but has been unable to procure the declarant’s attendance or to take the declarant’s deposition.

      2.  A declarant is not “unavailable as a witness” if the declarant’s exemption, refusal, inability or absence is due to the procurement or wrongdoing of the proponent of the declarant’s statement for the purpose of preventing the witness from attending or testifying.

      (Added to NRS by 1971, 794)

     

Notes of Decisions
Cited in 24 cases (2 in the last 5 years), 1972–2023 · leading case: Chavez v. State
Sort: Relevance Newest Treatment
Chavez v. State (2009) nev · cites it 4× “Chavez also argues that it was error to admit other bad act evidence with regard to how he punished his children.”
Funches v. State (1997) nev · cites it 12× “198(6), the district court may also consider NRS 51.055, [2] which defines unavailability, and the more general provisions of the evidence code when determining a witness's unavailability in order to admit the witness's preliminary hearing testimony at trial.”
Hernandez v. State (2008) nev · cites it 2× “198’s list of conditions that create unavailability and expanding the definition to include NRS 51.055 and other general provisions of the evidence code when determining a witness’s unavailability).”
Cheatham v. State (1988) nev · cites it 5× “” NRS 51.055(1)(b). In Kaplan, the trial *504 court allowed into evidence prior inconsistent out-of-court statements for impeachment purposes, pursuant to NRS 51.”
Thomas v. State (1998) nev · cites it 2× “Thomas argues for the first time on appeal that Hall did not have a Fifth Amendment right because Hall had already waived that right when he pleaded guilty and testified at the preliminary hearing. This argument is in direct opposition to what Thomas argued to the district court…”
Buff v. State (1998) nev · cites it 4× “" NRS 51.055(1)(a). However, a "statement tending to expose the declarant to criminal liability and offered to exculpate the accused in a criminal case is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”
Felix v. State (1993) nev · cites it 2× “Nevertheless, we conclude that the district court was too hasty in its determination that Patricia was unavailable as a witness due to the trauma she might suffer from testifying.”
Flores v. State (2005) nev “39 Unavailability under this provision is governed by NRS 51.055. 40 See Bockting, 109 Nev. at 111 n.”
Sparkman v. State (1979) nev · cites it 2× “NRS 51.055; Barber v. Page, 390 U.S. 719 , 88 S.”
Passarelli v. State (1977) nev · cites it 3× “At trial, Gregg being declared an unavailable witness within the meaning of NRS 51.055(1)(d), 3 her preliminary hearing testimony was admitted into evidence under the former testimony exception to the hearsay rule.”
LaPena v. State (1980) nev · cites it 2× “The trial court thereupon ruled Weakland an unavailable witness, under NRS 51.055(l)(b), and admitted into evidence the transcript of Weakland’s testimony at the preliminary examination and a videotape of a statement Weak-land had given the police after plea negotiations over…”
Woods v. State (1985) nev “NRS 51.055(l)(a). Raye Wood’s statements were clearly against her penal interest at the time when made.”
Show all 24 citing cases →
— Nev. Rev. Stat. § 51.055(1)(a) — 4 cases
Buff v. State (1998) nev “" NRS 51.055(1)(a). However, a "statement tending to expose the declarant to criminal liability and offered to exculpate the accused in a criminal case is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”
Thomas v. State (1998) nev “Thomas argues for the first time on appeal that Hall did not have a Fifth Amendment right because Hall had already waived that right when he pleaded guilty and testified at the preliminary hearing. This argument is in direct opposition to what Thomas argued to the district court…”
Funches v. State (1997) nev “198(6), the district court may also consider NRS 51.055, [2] which defines unavailability, and the more general provisions of the evidence code when determining a witness's unavailability in order to admit the witness's preliminary hearing testimony at trial.”
Brown (Majunique) Vs. State (2020) nev
— Nev. Rev. Stat. § 51.055(1)(b) — 3 cases
Cheatham v. State (1988) nev “” NRS 51.055(1)(b). In Kaplan, the trial *504 court allowed into evidence prior inconsistent out-of-court statements for impeachment purposes, pursuant to NRS 51.”
Funches v. State (1997) nev “198(6), the district court may also consider NRS 51.055, [2] which defines unavailability, and the more general provisions of the evidence code when determining a witness's unavailability in order to admit the witness's preliminary hearing testimony at trial.”
Kaplan v. State (1983) nev
— Nev. Rev. Stat. § 51.055(1)(c) — 2 cases
Alway (Elgin) v. State (2014) nev
Newberg (Steven) v. State (2013) nev
— Nev. Rev. Stat. § 51.055(1)(d) — 4 cases
Hernandez v. State (2008) nev “198’s list of conditions that create unavailability and expanding the definition to include NRS 51.055 and other general provisions of the evidence code when determining a witness’s unavailability).”
Passarelli v. State (1977) nev “At trial, Gregg being declared an unavailable witness within the meaning of NRS 51.055(1)(d), 3 her preliminary hearing testimony was admitted into evidence under the former testimony exception to the hearsay rule.”
Aberha (Ashenafi) v. State (2018) nev
Aberha v. Williams (2023) nvd
— Nev. Rev. Stat. § 51.055(2) — 1 case
Wade v. State (1999) nev
— Nev. Rev. Stat. § 51.055(d) — 1 case
Rodriguez (Evaristo) v. State (2015) nev
— Nev. Rev. Stat. § 51.055(l)(a) — 4 cases
Thomas v. State (1998) nev “Thomas argues for the first time on appeal that Hall did not have a Fifth Amendment right because Hall had already waived that right when he pleaded guilty and testified at the preliminary hearing. This argument is in direct opposition to what Thomas argued to the district court…”
Woods v. State (1985) nev “NRS 51.055(l)(a). Raye Wood’s statements were clearly against her penal interest at the time when made.”
Buff v. State (1998) nev “" NRS 51.055(1)(a). However, a "statement tending to expose the declarant to criminal liability and offered to exculpate the accused in a criminal case is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”
Funches v. State (1997) nev “198(6), the district court may also consider NRS 51.055, [2] which defines unavailability, and the more general provisions of the evidence code when determining a witness's unavailability in order to admit the witness's preliminary hearing testimony at trial.”
— Nev. Rev. Stat. § 51.055(l)(b) — 4 cases
LaPena v. State (1980) nev “The trial court thereupon ruled Weakland an unavailable witness, under NRS 51.055(l)(b), and admitted into evidence the transcript of Weakland’s testimony at the preliminary examination and a videotape of a statement Weak-land had given the police after plea negotiations over…”
Cheatham v. State (1988) nev “” NRS 51.055(1)(b). In Kaplan, the trial *504 court allowed into evidence prior inconsistent out-of-court statements for impeachment purposes, pursuant to NRS 51.”
Lemberes v. State (1981) nev
Kaplan v. State (1983) nev
— Nev. Rev. Stat. § 51.055(l)(c) — 2 cases
Chavez v. State (2009) nev “Chavez also argues that it was error to admit other bad act evidence with regard to how he punished his children.”
Passarelli v. State (1977) nev “At trial, Gregg being declared an unavailable witness within the meaning of NRS 51.055(1)(d), 3 her preliminary hearing testimony was admitted into evidence under the former testimony exception to the hearsay rule.”
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