Minutes ID: 709

*CM709*

MINUTES OF THE MEETING OF THE

ASSEMBLY COMMITTEE ON JUDICIARY

Seventy-Ninth Session April 3, 2017

The Committee on Judiciary was called to order by Chairman Steve Yeager at 8:33 a.m. on Monday, April 3, 2017, in Room 3138 of the Legislative Building, 401 South Carson Street, Carson City, Nevada. The meeting was videoconferenced to Room 4401 of the Grant Sawyer State Office Building, 555 East Washington Avenue, Las Vegas, Nevada. Copies of the minutes, including the Agenda (Exhibit A), the Attendance Roster (Exhibit B), and other substantive exhibits, are available and on file in the Research Library of the Legislative Counsel Bureau and on the Nevada Legislature's website at www.leg.state.nv.us/App/NELIS/REL/79th2017. COMMITTEE MEMBERS PRESENT:

Assemblyman Steve Yeager, Chairman Assemblyman James Ohrenschall, Vice Chairman Assemblyman Elliot T. Anderson Assemblywoman Lesley E. Cohen Assemblyman Ozzie Fumo Assemblyman Ira Hansen Assemblywoman Sandra Jauregui Assemblywoman Lisa Krasner Assemblywoman Brittney Miller Assemblyman Keith Pickard Assemblyman Tyrone Thompson Assemblywoman Jill Tolles Assemblyman Justin Watkins Assemblyman Jim Wheeler

COMMITTEE MEMBERS ABSENT:

None GUEST LEGISLATORS PRESENT:

Assemblyman William McCurdy II, Assembly District No. 6 Assemblywoman Dina Neal, Assembly District No. 7

Assembly Committee on Judiciary April 3, 2017 Page 2 STAFF MEMBERS PRESENT:

Diane C. Thornton, Committee Policy Analyst Brad Wilkinson, Committee Counsel Linda Whimple, Committee Secretary Melissa Loomis, Committee Assistant

OTHERS PRESENT:

Christina Tetreault, Staff Attorney, Consumers Union, San Francisco, California Anna C. Clark, Public Defender, Clark County Public Defender's Office Robert E. O'Brien, Deputy Public Defender, Clark County Public Defender's Office William Waters, Chief Public Defender, Clark County Public Defender's Office John J. Piro, Deputy Public Defender, Clark County Public Defender's Office Amy Coffee, Attorney, Clark County Public Defender's Office; and representing

Nevada Attorneys for Criminal Justice Sean B. Sullivan, Deputy Public Defender, Washoe County Public Defender's Office Alanna Bundy, Intern, American Civil Liberties Union of Nevada Tonja Brown, Private Citizen, Carson City, Nevada Wendy Stolyarov, Legislative Director, Libertarian Party of Nevada Christopher J. Lalli, Assistant District Attorney, Clark County District Attorney's

Office Christopher J. Hicks, District Attorney, Washoe County District Attorney's Office;

and representing Nevada District Attorneys Association Marc M. Schifalacqua, Senior Assistant City Attorney, City Attorney's Office, City of

Henderson Charlotte M. Bible, Assistant General Counsel, Las Vegas Metropolitan Police

Department Jeff Segal, Bureau Chief, Criminal Justice, Office of the Attorney General Luke Prengaman, Chief Deputy District Attorney, Washoe County District Attorney's

Office Chairman Yeager: [Roll was called and protocol was explained.] We have three items on the agenda today and will start with Assembly Bill 287. After we are done with that bill, we are going to do the other two bills together in one hearing, because the bills are fairly similar and I expect the testimony will be similar on both of those bills. I will formally open the hearing on Assembly Bill 287. Assembly Bill 287: Revises provisions governing the issuance of gift certificates.

(BDR 52-855) Assemblyman William McCurdy II, Assembly District No. 6: Thank you for having me here this morning. Joining me by phone today is Christina Tetreault, who is a staff attorney at Consumers Union, which is an organization that

Assembly Committee on Judiciary April 3, 2017 Page 3 serves consumers through unbiased product testing and ratings, research, journalism, public education, and advocacy. I will walk the Committee through Assembly Bill 287 and then turn it over to Christina to add additional comments and to help answer any questions the Committee may have. In 2009, Congress passed and President Obama signed the Credit Card Accountability Responsibility and Disclosure Act of 2009, which prohibits the expiration of gift cards within five years of issuance. Assembly Bill 287 would prohibit any gift card or gift certificate sold in the state of Nevada from having expiration dates. Like many here in this Committee, we all know how those gift certificates or gift cards are put in a drawer and sometimes may be forgotten about or have not had an opportunity to be used before the expiration date. Assembly Bill 287 takes the next logical steps to prohibit the expiration of gift cards in general. Currently, eight other states have prohibited the expiration of gift cards: California, Connecticut, Florida, Maine, Minnesota, Montana, Rhode Island, and Washington. Nevada should join that list. Hardworking Nevadans deserve to have common-sense consumer protections in place, and banning expirations on gift cards protects Nevadans from being cheated out of their hard-earned wages while giving and receiving these gifts. I will turn it over to Christina to answer any questions in regards to this bill. Christina Tetreault, Staff Attorney, Consumers Union, San Francisco, California: Consumers Union is the mobilization arm of Consumer Reports, and we are very grateful for this opportunity to offer support for A.B. 287, a bill to eliminate expiration dates for gift cards. Consumers like to give and get gift cards. A 2015 holiday survey by the National Retail Federation found that gift cards were the most desired gifts nine years in a row. That same survey estimated gift card spending at nearly $26 billion for the holidays alone. While gift cards are popular to give and receive, they are not without problems. For a variety of reasons, gift cards often end up misplaced or forgotten. A Consumer Reports poll from several years ago found that a quarter of adults still have one unused gift card from the last holiday season, and 55 percent of that group have more than two unused gift cards. We asked why they had not used their gift cards. Thirty-six percent reported that they had not had time to use the gift cards and a slightly lower number of consumers—34 percent—said they had simply forgotten about the card. It used to be that consumers who misplaced a gift card for even a few months could get a nasty shock when they tried to redeem it. Cards often expired quickly or value was eaten up by junk fees. These abuses were substantially curbed by the Credit Card Accountability Responsibility and Disclosure Act of 2009, commonly known as the Credit CARD Act. The Credit CARD Act amended the federal Electronic Fund Transfer Act to extend some basic protections for gift cards including: 1) prohibiting funds on gift cards from expiring for at least five years from the date the card was purchased, or from the last date any additional money was loaded onto the card; 2) disallowing inactivity fees for the first year after the card was issued and limiting any inactivity fees charged thereafter to only one per month;

Assembly Committee on Judiciary April 3, 2017 Page 4 and 3) mandating that any expiration date of a card be clearly disclosed along with any fees. These reforms have saved consumers an estimated $973 million, according to a recent report from CEB Global. The Electronic Fund Transfer Act does not preempt any state law that addresses dormancy, inactivity, service fees, or expiration dates for gift certificates or gift cards, so long as any state law on these topics provides greater consumer protection. A number of states, including California, have adopted rules that provide consumers with stronger protection by completely banning all gift card expiration dates. We urge Nevada to adopt a rule banning expiration dates for gift cards. Cash does not expire, and neither should a gift card. Consumers deserve the sole benefit of the bargain when they purchase or receive a gift card. A ban on expiration dates is also a win for retailers, because funds are ultimately redeemed with them. The Nevada Legislature holds the power to put an end to consumer losses due to expiring gift cards by barring gift card expiration. We urge you to take this task. Thank you for your time, and I am happy to answer any questions you may have. Assemblyman Pickard: The bill references specifically gift certificates, not gift cards. I know that some gift certificates are awarded for different reasons—marketing and promotional types of things—that do not require a purchase. This would ostensibly affect those. As you drafted this, did you consider that difference? Assemblyman McCurdy: I did not consider it. If there is something we can do to provide protections for those who do those types of promotions or gift certificates, we can definitely get there. I understand that concern. Chairman Yeager: If you look at page 2 of the bill, subsection 2, starting at line 27, it seems to indicate that the sections of the bill do not apply if the gift certificate was issued as part of an award, loyalty, promotional, rebate, incentive or reward program for which no consideration was provided. Then the next subsection talks about gift certificates that are given out at charitable or nonprofit organizations. I am not sure if that answers the question, but I wanted to make sure the record was clear that there do appear to be some exemptions in the bill. Assemblyman Pickard: I do not do this, but I understand there are myriad means of issuing these, and I did not know whether or not that was all-inclusive in the opposite. The second question I have has to do with the accounting of gift cards. This goes back to my college days in accounting class, and I had a couple of accountants tell me that my recollection is correct, but they do not do this either. My concern is that the gift cards and gift certificates are retained as liabilities on their books. If we eliminate expiration dates altogether, would this create a situation where those liabilities would mount and thus either disincentivize further issuance of those cards or create a phantom liability on the books for these outfits? Did you consider how to address that?

Assembly Committee on Judiciary April 3, 2017 Page 5 Assemblyman McCurdy: Christina, would you like to answer that? Christina Tetreault: Commonly, gift cards are reported as a liability, as your recollection is correct from college accounting. I can say that that is about as deep as my level of accounting goes. I would say that the retailers in the states, including your neighbor California, have figured out how to do this. I am certain that it is something that Nevada can figure out as well. Assemblyman Pickard: Do you think that is the burden of businesses to figure out or should we be doing that in terms of how we establish our policy statements? Christina Tetreault: I would defer to other experts on this. Most states, so long as the sheet laws match up with the requirement, do not go further in their rules on gift cards around that. Assemblyman Wheeler: You said there are seven states that have already done this so far. Has there been any type of study done or anything like that that says what this has done to businesses? As far as I know, especially around the holidays, some of our larger businesses issue gift cards. I buy them for my grandchildren all the time because they are hard to buy for and they can go in and get what they want. A lot of times those are not turned in and, as you said, they may sit in a drawer and get lost. A lot of them are not turned in, and that actually becomes a bit of a profit center for the business. I know that businesses put this into their accounting as a profit on a certain amount of cards that are not used. I am wondering if any study has been done that shows how this affects a business, whether it slows down the issuance of gift cards, or whether it affects a business' bottom line. Assemblyman McCurdy: That is a good question. I have read that some states have taken those losses as unclaimed property and it went back to the states. I do not know the toll it has taken on businesses as a whole out of the seven states that have passed it. I can get the information to you and the entire Committee. Assemblywoman Jauregui: I am curious to know if you have a figure of how much this costs Nevadans, or what it costs the country overall in losses per year? Christina Tetreault: The estimates are about $1 billion per year of unredeemed gift cards. Assemblywoman Jauregui: Do you have that specifically for Nevada?

Assembly Committee on Judiciary April 3, 2017 Page 6 Christina Tetreault: I do not; my apologies. Assemblyman McCurdy: I will get it to you. Assemblyman Hansen: My question might actually be for legal. Back in my freshman year when William Horne sat where you are, we had a bill dealing with unclaimed property, specifically the cards in the casinos where people would buy a $100 card and they would end up using only $90 of it. I think the state ended up with 25 percent. Would this have any impact at all on that? Brad Wilkinson, Committee Counsel: The answer to that is no. Those are unredeemed slot vouchers, so they are not affected by this bill. Assemblyman Hansen: Good, I just wanted to make sure. Assemblyman Watkins: In looking at this bill, it appears that the company issuing the gift certificate can charge up to a dollar per month as a service fee for the issuance of the gift card. That is existing law. My experience, anecdotally, is that on these gift cards, typically they do not seem to charge that to the consumer. I am using my wedding as an example, which was eight years ago. I still have gift cards from that which apparently have full value, as I recently checked on it. My concern is that maybe if they enact this bill and there is no longer an expiration date, in order to cure their books, they make sure that they charge a dollar per month so they have a liability that comes off their books after a certain amount of time. Have you looked into that at all? What are the typical service fees being charged and might this bill encourage that type of behavior? Assemblyman McCurdy: I have not, but can address it at a later date and get back to you. Assemblywoman Cohen: My question is about small businesses. I am not so worried about the large businesses if this passes, and I am not worried about the members of the different chambers, because they will all get the information about this bill. What are we going to do to get the information out to the small businesses who are not members of chambers and do not know that this is something they have to be concerned about? Assemblyman McCurdy: I would say that probably the press would help get the word out. We have already had

Assembly Committee on Judiciary April 3, 2017 Page 7 a column written up about this. I do not know how we could get the word out about bills that are passed here in the Legislature, but I will do my best to make sure that the message is put out. Anything past that, I do not know how we do it. Christina Tetreault: I would like to offer that the Consumers Union would be happy to promote the availability of this benefit if the bill passes. Assemblywoman Tolles: Does this apply to not only products but services as well? For example, a gift certificate for a massage, facial, or piano lessons. Assemblyman McCurdy: I am not sure. I would defer to legal. Brad Wilkinson, Committee Counsel: Yes. If you look on page 2, line 41, it indicates that this also applies to services. Chairman Yeager: Are there any other questions from the Committee members? [There were none.] Would anyone in Carson City like to testify in support of A.B. 287? [There was no one.] Would anyone in Las Vegas like to testify in support of A.B. 287? [There was no one.] Is there anyone in Carson City or Las Vegas opposed to A.B. 287? [There was no one.] Is there anyone neutral on A.B. 287? [There was no one.] Assemblyman McCurdy, would you like to make any concluding remarks? Assemblyman McCurdy: I do not have any other comments, unless the Committee has questions for me. Chairman Yeager: We will close the hearing on A.B. 287. [(Exhibit C) was submitted but not discussed.] I will formally open the hearing on the next two Assembly bills simultaneously, Assembly Bill 356 and Assembly Bill 376. Assembly Bill 356: Revises provisions relating to criminal procedure. (BDR 14-1155) Assembly Bill 376: Revises provisions relating to criminal procedure. (BDR 14-1075)

Assembly Committee on Judiciary April 3, 2017 Page 8 Before we get started, I want to let the Committee and members of the audience know that there is a mock-up amended version of A.B. 376 on the Nevada Electronic Legislative Information System (NELIS), and that is what we will be working off today. I have also submitted an amendment on both bills (Exhibit D) and (Exhibit E) to remove the meet and confer requirement that was specified in both bills, just mostly due to my belief that it was somewhat impractical based on the number of cases we have in criminal court. If we process this bill, the intent is to process it without those two sections. If you have any comments relating to those, you are certainly free to make those comments, but just realize that in all likelihood that is going to come out of the bill. Assemblyman James Ohrenschall, Assembly District No. 12: Assembly Bill 356 and Assembly Bill 376 have a lot of similarities. I believe A.B. 376 is a little broader, but, believe it or not, Assemblywoman Neal and I arrived at these two bills independently. We had not really talked about this during the interim, but I think the fact that two different legislators are carrying bills on this issue shows there is a need. I have some very able practitioners who are going to help me walk through the bill, so I will leave that to them, but I want to pose a couple of things to the Committee. Let us say that you go out after you are done with your committees tonight, go to the market to buy some groceries, and you are walking out to your car, which is surrounded by three police cars. You are stopped, you ask what is going on, and you are told that you match the description of someone who just conducted an armed robbery a couple of blocks away. I think most of us would feel nervous, but most of us, knowing that this is not us, would realize this must be a mix-up and would be confident it will get cleared up. Let us say, unfortunately, it is not cleared up then and there, you are arrested, and you have to go forward to clear your name. I think most of us would want to make sure we knew if there were other suspects that the police investigated. If there was someone who had run away from that armed robbery and got in a car and we were not given that information as we proceeded to trial, I think that would be troubling to most of us. That is exactly what happened in the case of Brady v. Maryland [373 U.S. 83 (1963)]. It is a 1963 Supreme Court decision where John Leo Brady was accused of murder, and a confession by Donald Bobit to having done it solely by himself without any help was not turned over to John Leo Brady. That ended going up to the United States Supreme Court and became Brady v. Maryland. That is the law of the land now. In Nevada, what A.B. 376 and A.B. 356 intend to do is try to make sure that we are compliant with what the Supreme Court, the federal courts, and our state courts have instructed us in terms of exculpatory evidence and a defendant having the right to know if there is exculpatory evidence that the prosecutors or the police agencies have and making sure that they have it. If it were you or me that were stopped because we fit the description of the armed robber and we had to proceed on to trial and clear our name, I think we would all want to know what other possibly exculpatory information the police or prosecutors had.

Assembly Committee on Judiciary April 3, 2017 Page 9 Assemblywoman Dina Neal, Assembly District No. 7: What I want to have happen in this hearing—and it is piggybacking on Assemblyman Ohrenschall—is that when you review these two bills, I want you to challenge yourself to look at the bill through the lens of the citizens' rights versus the prosecution versus the defense side. Then ask yourself, as you go through the several provisions that are in the bill, which are controversial to some degree, but is there an issue of equity? Is there an issue of trying to make sure that each side can properly prepare a defense for whoever is going to court in a criminal justice situation? My interest, when I got this bill, was in how to create equity within the system. How do we move away from the "gotcha moment" to actual justice? Start looking at what the rights to information are in order to appropriately defend someone, whether or not you are on the prosecutorial side. That is what I would ask you to do. Typically, what has happened in this building, in the Judiciary Committee and in life, is that we are always divided and we have a particular lens and viewpoint in which we see things. Sometimes it is hard to shake us loose from our beliefs or ideas. This, to me, is the cornerstone of what justice is and what the rights of me as a citizen are if I want my attorney to defend me. What should he have access to in order to appropriately do that exact act? That is all I want to say, and that is what I want you to consider. There are going to be a lot of people who will come to the table and say there is no problem. But it is not really a question of whether or not there is a problem. The question is if there is adequacy within the discovery rules that is allowing people to prepare and defend whomever they need to defend in the right way. Assemblyman Ohrenschall: I certainly cannot be any more eloquent than Assemblywoman Neal. Chairman Yeager: Thank you for your comments. We will invite up the other presenters for the bill. Committee, I will allow them to present the two bills and then we will open it up for questions after the presentation. Anna C. Clark, Public Defender, Clark County Public Defender's Office: I will be speaking as to A.B. 376, although, as Assemblyman Ohrenschall and Assemblywoman Neal noted, the bills are very similar in many ways. As was stated earlier, the purpose of this bill is to accomplish a number of goals related to the criminal justice system. We are looking to streamline the criminal justice process with the ultimate goal of helping these cases move through the system more efficiently. We are looking to ensure that there is overall fairness and uniformity in the rules that we have which apply across the criminal justice system. We are also looking to reduce the potential for wrongful convictions and ultimately lead to greater faith in the system and the convictions that are secured under the current system.

Assembly Committee on Judiciary April 3, 2017 Page 10 I want to speak as to how the bill seeks to accomplish those goals, but first I think it is important to note that both of these bills are not looking to reinvent the wheel in any way. We are not breaking a lot of new ground. Nothing in either of these bills departs greatly from the way things are already supposed to operate within the criminal justice system. In many ways, this bill is simply a codification of our existing United States and Supreme Court precedent, and our Nevada Supreme Court precedent for how certain aspects of the criminal justice process are supposed to operate, specifically the disclosure of discovery and Brady material. It is also important to note at this time that we do not anticipate that either of these bills will have any fiscal impact. In fact, these bills are designed to help the system work more efficiently and really cut down on some of the expensive pretrial litigation that we go through, cut down on the length of time that criminal defendants spend in pretrial detention, and ultimately save money. I want to go through what the bill proposes (Exhibit F) and (Exhibit G). I will go through it section by section. I know this bill has multiple parts, so please bear with me. I am going to defer section 1 of the bill to my colleague, Mr. Robert O'Brien, from the Public Defender's Office, and I will let him speak as soon as I have concluded my remarks. Section 1 is basically designed to help criminal complaints get filed faster and get the cases moving quicker. Sections 3 and 5 of the bill are best discussed together as they function together. Both sections 3 and 5 are codifications of long-established and well-settled United States and Nevada Supreme Court precedents regarding the discovery process in a criminal case. I know that at least several members of this Committee are intimately familiar with the established case law in this area, but for those who are not, Assemblyman Ohrenschall touched on it earlier. The United States Supreme Court case of Brady v. Maryland from 1963 is really the seminal case in this area, and that is the one that created an obligation on prosecuting attorneys to disclose and turn over favorable evidence and exculpatory evidence of the defendant before trial. The notion behind this, of course, is one of fundamental fairness and due process, and it makes sense. If a prosecutor has evidence that favors or exculpates a defendant and it tends to point towards their innocence, he or she should disclose it. I know that the district attorneys and prosecuting attorneys agree with this principle, and I know that they agree as well that the purpose of the system is to seek truth and to seek justice, not just to secure convictions. In that spirit, section 5, subsection 1, paragraph (d), adds to NRS 174.235 the requirement that as a matter of pretrial discovery, prosecutors turn over all of that material that could fall under the umbrella of Brady—that is exculpatory or favorable evidence—that falls into the three main categories: 1) evidence that tends to favor the defendant, exculpates, or points to their innocence; 2) evidence that negatively impacts the credibility of a state's witness or the state's evidence; and 3) evidence that tends to mitigate the punishment of the defendant or mitigate the circumstances of the crime. An important component of A.B. 376 in this section is the elimination from a pretrial perspective of what we call the materiality requirement for Brady evidence to be disclosed. I am going to try to briefly explain what that is and why it makes sense to remove it. Currently, when a prosecutor is looking at their evidence and the evidence they have in their

Assembly Committee on Judiciary April 3, 2017 Page 11 file and trying to decide what material they have that falls under Brady and should be disclosed, our current case law tells them they only have to turn over favorable evidence if it is material. Materiality is actually tricky to judge and a little counterintuitive, and I will explain why. Our case law tells us now that evidence is material if there is a reasonable probability or reasonable possibility that that evidence would have affected the outcome of a proceeding—usually a trial—if it had been disclosed. The reason that standard is very tricky is that it only comes from our appeals courts—from our reviewing courts—who are trying to decide whether evidence that was not disclosed came to light after a conviction had been gathered—whether that evidence that was not disclosed should have been disclosed. By definition, the materiality standard comes after a conviction when a case is up on appeal and when a defendant asserts there has been a Brady violation pretrial. In other words, materiality is really an appeals standard that our appeals courts look at to determine whether or not a conviction should be overturned, reversed, and remanded back to the trial courts. The difficulty for prosecutors, of course, arises when they are trying to determine, before trial, whether or not certain pieces of favorable evidence are material. That is, if the favorable evidence might alter the outcome of the trial that has not happened yet. As I am sure you can imagine, this materiality standard results in prosecutors having to do a little bit of crystal ball predicting of the future as to whether or not evidence should be disclosed or whether or not it will affect a trial that has not happened yet. This can be very problematic. This is not necessarily problematic all the time in every case. I firmly believe there are many, if not most, prudent prosecutors who will err on the side of caution and disclose every piece of evidence that they have that is favorable. However, by removing the materiality requirement entirely in this bill, we are relieving prosecutors of that burden of having to make that difficult decision of what favorable evidence might be material and just laying out a very simple, easy-to-follow standard. If the evidence if favorable, if it is exculpatory, if it is Brady material, it must be disclosed. This also serves to put the power of deciding the truth and the facts of the matter back in the hands of the jury and makes sense in a common-sense perspective. If there is favorable evidence, everyone should know about it. It makes the system more fair. It also has the potential to cut down on wrongful convictions that occur if favorable evidence is never disclosed. I know from our perspective—I think the prosecutors would agree with us on this—that one wrongful conviction is one too many. Section 3 affirms that the prosecuting attorneys are deemed to be in constructive possession of evidence that is created or gathered by law enforcement. Again, this is simply a codification of existing Supreme Court and Nevada Supreme Court precedent, and, indeed, a reflection of the current reality. Prosecutors and police, by necessity, work very closely to investigate and to prosecute cases. Prosecuting attorneys simply have better access to the material that is in the police files than anyone else. The final change that we make in section 5 is the addition of language that requires district court judges to hear and rule on our defense motions for discovery and for the disclosure of Brady material that we file on behalf of our clients. The reason we file these motions and the

Assembly Committee on Judiciary April 3, 2017 Page 12 reason we need judges to rule on them is because—if cases do go up on appeal; if there ends up being a Brady violation or discovery violation—the standard of review is more favorable to our clients if we have made a specific request for the material. So we are obligated as practitioners to file these motions. The reason we added the language in this bill is that there is a bit of a trend occurring that—at least in southern Nevada, where we practice—there are a handful of district court judges who simply will not hear our motions for discovery or Brady material and will not issue rulings on it. With this proposed change, we are really just trying to create a system where the same rules and the same procedures apply to all cases and all defendants in every courtroom and every jurisdiction in this state. Sections 8 and 9 are also designed to streamline the process and ensure compliance with the already existing deadlines and time frames for the disclosure of evidence. Nevada Revised Statutes 174.245 already requires that evidence be disclosed 30 days before trial. Unfortunately, this deadline is often rendered meaningless by the exception to the deadline, which is that reasonable extensions of time can be granted and often are granted in almost every case for basically any reason. The incredibly common result of this problem is that evidence—both good and bad, inculpatory and exculpatory—is often disclosed incredibly late in the game, often at calendar call, sometimes on the day of trial when we are set to begin and we have a jury waiting in the hallway, sometimes in the middle of trial. Often, this evidence, good or bad, substantially alters the posture of the case, and it forces parties to ask for continuance to prepare more adequately for trial in light of the new evidence that was not disclosed within the 30 days before trial timeline. As I am sure you can imagine, this causes extensive time-consuming delays and congests the court calendars. It creates uncertainty, it forces defendants to sacrifice their speedy trial rights in order to have their attorneys more prepared, and it often forces victims and witnesses to have to make multiple trips to court without ever being able to testify or get any closure in their cases. There is an old saying, "Justice delayed is justice denied," and that is exactly what happens in these cases. The exception to the rule regarding the deadlines has swallowed the rule, and the rule is very important. By turning evidence over—both good and bad—within the 30 days before trial time frame, parties on both sides are able to do their jobs much better. As defense attorneys, if we know exactly what the evidence is against our client—both good and bad—we are better able to advise them on the best course of action and likely resolve our cases much faster. As I am sure you are aware, the vast majority of our cases are going to end in a plea bargain and not go to trial. We can do that better when we know all of the evidence that is out there. Again, the goal is to create certainty and absolution, not only for our clients but also—and very importantly—for the victims of crime who will not have to go through the turmoil of multiple continuances and delays. They will get their closure faster and be able to move on with their lives. Our section accomplishes compliance with the time frame by excluding evidence or mandating that courts exclude evidence that is known to either party—prosecution or defense—but that is not turned over at least 30 days before trial as the statute requires.

Assembly Committee on Judiciary April 3, 2017 Page 13 This applies both to the prosecution and defense, so this is applied equally to both sides. We recognize, of course, in this bill there are going to be situations in which evidence simply cannot be turned over within the 30-day pretrial deadline. I am going to refer the Committee members to the amendment on this particular section as to the language I am speaking to right now, but there is a simple procedure that was written into this bill for a party who has not been able to comply with the 30-day timeline to still get evidence admitted. That procedure goes as follows: the party seeking the admission of evidence that was not turned over within that 30-day time frame before trial will be able to offer a very quick sworn statement, which can be done orally in court, attesting or swearing under oath that the evidence was not known to them within the 30-day time frame and that the evidence was not known to them despite their diligent compliance with the requirements of this section. This is a similar procedure to the procedure that is used in other contexts of the criminal justice system. If there are any practitioners in the room, they are familiar with this. We have a process that prosecutors often follow, usually prior to preliminary hearing, which is called a Bustos motion, named after a case [Bustos v. Sheriff, 491 P.2d 1279 (1971)]. In those instances, the prosecutors offer a very quick sworn statement. If they are surprised by the nonappearance of a witness that they need for a hearing, they attest to their diligence and to their surprise. The courts hear those, they take about 30 seconds to a minute, and then the court generally grants them their continuance. In the context of discovery and seeking additional time to comply with this rule, the process would be virtually identical. The party would make a quick statement under oath, the court would make a decision, and then it gives the court the discretion to fashion whatever appropriate remedy it sees fit. Then the court can grant a continuance, admit the evidence, or exclude the evidence; it really gives them the discretion. Section 9 also codifies the existing precedent in mandating what the result is if evidence is lost or destroyed and that happens in bad faith. I have a colleague in Las Vegas who will speak more to this section from a historical and policy perspective, but I would point out for the members of the Committee here that this section only exists to address incredibly rare circumstances in which there is egregious conduct by a party and where evidence is destroyed in bad faith. It is a section that would mandate dismissal of the case. Again, we anticipate that it would be exceptionally rare. Sections 10 and 11 do not make terribly substantive changes to existing law. They do widen our ability to issue subpoenas. By broadening the type of hearing at which a subpoena can be issued, from our perspective, it makes it easier for the parties to investigate these cases, to seek out and find the evidence that exists, and to more efficiently move these cases through the system. Wrapping up the bill section, my colleague, William Waters in Las Vegas is going to speak more about section 12, because I want the members of the Committee to have the best possible information regarding the proposals in section 12. Before I turn it over to my colleague to my left and to my colleague in Las Vegas, I want to speak briefly as to what

Assembly Committee on Judiciary April 3, 2017 Page 14 I anticipate the opposition to this bill might be. I know that there are multiple representatives in the room from the Clark County District Attorney's Office. I suspect there are others as well, and I do not want to infringe on their time. I do want to take a moment to address what I feel their concerns might be. I suspect that the opposition to the bill might go something like this: these changes are unnecessary; the statute does not need to be modified to include Brady material; it is a matter of policy; as prosecutors, we are already familiar with our obligations; and we already do this as our common practice. My answer to that is yes; I believe that many, if not most, of the dedicated professionals at the prosecutors' offices all over the state are abundantly familiar with Brady and abundantly familiar with the case law and diligently comply to the best of their ability. I want to stress to those in the room and to the members of the Committee that the proposals in this bill are not an attack on the prosecutors or an attack on law enforcement in any way. To the contrary, this bill aims to promote fairness, to seek truth and make it easier to seek truth, and to ensure the equal application of justice. I know that these are goals that we share with the prosecutors. I believe it makes sense to put the policies and the procedures in place now to make them black letter law, to make the system more fair, not just for the cases today but for cases that come in the years and decades down the road. It eliminates confusion; it makes the disclosure of evidence easier and faster; it promotes uniformity between cases, between departments and across jurisdictions; and it really just makes sense. I would like to defer to my colleague, Mr. O'Brien, and then to Mr. Waters, and I know that we would like to open it up to any questions the Committee members might have. Robert E. O'Brien, Deputy Public Defender, Clark County Public Defender's Office: My comments will be focused on Assembly Bill 376 as amended (Exhibit H). Simply put, section 1 attempts to make sure that no one sits in jail for longer than 3 days without knowing the charges against him. I guess I should deviate up front. I know we had some questions before we got started here from courts in southern Nevada about the application of this bill and which courts it applies to. Section 1 of A.B. 376 is one of the few sections that applies to all courts in the state. The majority of this bill applies only to district courts. Regarding section 1, when filing a criminal complaint, the 72-hour hearing—or what we often refer to as the initial appearance hearing in justice courts in Nevada—is a crucial stage of procedure. By Nevada law, the judge must inform the defendant of the charges against him, of his right to an attorney, and the other rights that he has. When a complaint is not filed, the person is never informed of the charges against him. By Nevada law, currently the language is "forthwith," that the state shall file a complaint listing the charges against the defendant forthwith. Traditionally, in case law in Nevada, forthwith means immediately. We have a disparity between a variety of courts on how that phrase is interpreted. For some courts, forthwith means "that day," the day that someone first appears in court. For other courts, it means "2 days." Finally, there are courts—in southern Nevada at least—that interpret it as "as long

Assembly Committee on Judiciary April 3, 2017 Page 15 as 7 days." To their credit, I want to say the district attorney's office—I am mostly familiar with Clark County District Attorney's Office—makes sure the complaints are filed in a vast majority of cases at this hearing. They do an excellent job. For an office with that high of volume, they do a great job making sure that people are advised of the complaints against them. The section attempts to address what happens in the aberrations where someone is being held without knowing the charges against him. In practical terms, where a complaint is not filed, it is important to note that the court has no jurisdiction. What that essentially means is that no attorney is appointed. That person is now sitting in jail without an attorney, and he cannot file any motions on his behalf. He cannot reduce bail, he cannot move to dismiss the charges, he cannot have an attorney or an investigator investigating his case. What section 1 is attempting to do is create uniformity across Nevada courts. We have complaints filed in every 72-hour hearing. The other practical nature of what happens with the delay is this: when this Legislature established the rights in criminal trials, the first right was to the initial appearance 72 hours from arrest where the complaint must be filed. The second deadline right that comes up is the right to a preliminary hearing of 15 days. Each delay in filing the complaint pushes that deadline further and further away. For the courts who are allowing an additional 7 days for the filing of the complaint, we are now talking about a preliminary hearing that would happen 25 days after the arrest rather than the standard 18 days in the state of Nevada. That essentially concludes the general policy of section 1, and I would entertain any questions the panel might have. William Waters, Chief Public Defender, Clark County Public Defender's Office: I want to touch briefly on section 9, which Ms. Clark talked about. I really cannot say anything more as she did an excellent job presenting the bill. With respect to section 9, subsection 3, which are the remedies available when the state loses, fails to collect, or fails to preserve evidence, again, that is just merely a codification of existing Supreme Court case law. The problem is that the Supreme Court has never adequately defined bad faith, negligence, or gross negligence. Whichever courtroom you are in, the judge can create whatever definition it wants. All we are trying to do is create a standard definition for bad faith. This is straight from Black's Law Dictionary. It is still a phenomenally high bar, as Ms. Clark pointed out. The vast majority of cases—almost every case—is never going to rise to the level of bad faith. Bad faith is essentially where police have evidence that they know exonerates the suspect and instead of preserving it, they bury it, they do not make a note of it, or, if they collect it, they destroy it. That is almost never going to happen. It is important to have in there because, as Ms. Clark pointed out, we do not know. We are trying to remedy situations that could happen years and decades from now when we are not around. Then it removes the distinction between gross negligence and mere negligence because that has been proven to be almost impossible to get a consensus definition on what that means.

Assembly Committee on Judiciary April 3, 2017 Page 16 This would apply to situations covered by NRS 174.235, in section 5, subsection 1, paragraph (d) of the bill, which is the Brady aspect of discovery. Obviously, if there is a statement by a witness that inculpates the defendant and the state fails to turn it over or destroys it—no one is suggesting that with such an egregious discovery violation that the defendant is going to get a jury instruction or the case is going to get dismissed. But if it is Brady material—and obviously that is material that tends to explain away the charge and tends to exonerate the defendant—then obviously we want some sort of remedy. Moving to the last section—which is section 12 and involves jury instructions—I would like to thank Assemblyman Yeager for giving me the opportunity to speak on this. It is something that is very important to me. I was a track deputy in the Clark County Public Defender's Office and I handled your garden-variety cases that came through the system. I did that for approximately eight years and then I moved to the appellate team, so now I primarily do appellate litigation. When I joined the appellate team about three years ago, I began seeing that jury instructions are one of the most contentious issues, generally speaking, on appeal. What was the correct wording of a jury instruction, if there is such a thing as a correct wording? Should an instruction have been given? Why was an instruction given, et cetera. Also, during my time as a track attorney trying cases, when we would speak to the jury, afterwards, many jurors would express confusion to me about some of these more archaic instructions: we have been using them for 40 years; they are not standard; they are not stock. But for whatever reason, these instructions have been persistently given during trial to the point that I think most judges think that they are standard or stock instructions and they are actually not. I think most people would agree with me that the jury has the most important job in the system when a case goes to trial. It is a uniquely American principle. It is what separates us from the rest of the world. We want to give jurors the most accurate, plainly written instructions so they can accomplish the goal, which is to apply the facts to the law and decide whether the state has proven their case beyond a reasonable doubt. The instructions that are currently being used—at least in Clark County; I cannot speak for Washoe County—are over 30 years old. I cannot even understand them half the time and I have a law degree, so I think it is unfair to require the jury to parse through what some of these things mean. I am simply trying to codify our ability and the prosecutor's ability to submit very plain, simple to read instructions, commonsense instructions, and as long as they are legally accurate and pertinent to the case, then the judge has an obligation to give them. Finally, through my work as an appellate deputy at the Clark County Public Defender's Office, the existing law does not require the settling of jury instructions to occur on the record. Unfortunately, that creates an inadequate record for the purposes of appeal where now you are litigating the propriety of a particular instruction but you do not have a great record about what the party argued in support, what the party who argued against it said, and the full reasons why the judge either declined or agreed to give the instructions.

Assembly Committee on Judiciary April 3, 2017 Page 17 In section 12, subsection 8, all we are asking for is that jury instructions settling no longer occurs in chambers and that it occurs on the record so that we have an adequate record for review for purposes of appeal. Thank you very much for the opportunity to present what I consider to be a very important bill. John J. Piro, Deputy Public Defender, Clark County Public Defender's Office: As to Assembly Bill 356 in comparison to Assembly Bill 376, they are vastly similar. Assembly Bill 376 adds the forthwith language as well as the subpoena language that Ms. Clark talked about. We think those are both good policy decisions that pair well with the provisions in A.B. 356. I will say, just to dispel any notions that this does not happen, exhibits were submitted in support of A.B. 376 (Exhibit I). One of those is an article from the Las Vegas Review-Journal about a Las Vegas man being found innocent eight years later. I want to quote the article here for the Committee because I know that exhibit binders are pretty big. The article states that the Assistant District Attorney, Christopher Lalli, said that "discovery issues have long existed because of the archaic paper-driven case submittal process between police and the district attorney's office. Lalli is hoping to remedy the problems by developing an electronic case management system, which would ease the exchange of files between police and prosecutors. The hope is that it is going to eliminate the vast majority of discrepancies and getting discovery to the defendant, he said." This case was notable because this man sat with some of the most serious charges that can be leveled against an individual. He was accused of inappropriately touching two young girls. Luckily, he was able to bail out. This case lasted over eight years while he sat with those allegations over his head. Inside that file from the get-go was information that the police had written in their notes that said the testimony of the two accusing witnesses was frankly not believable, as thought of by the officer who was investigating the case. That information was never turned over to the defense attorney until a change in attorneys came in that case. Two new attorneys received the file, saw that information as they were prepping the case for trial, and then turned that information over. In the meantime, this gentleman sat with those serious allegations over his head for eight years, ruining his life, losing jobs, gaining weight, scared to marry his fiancé because he did not know what was going to happen, even though he knew he was innocent. What we are trying to do policy-wise is to make sure that things like this do not occur. Assemblyman Pickard: As I am going through this—and I do not know who to address this through—but one of the things that jumped out at me was the idea that we are now requiring the prosecuting attorney to seek out and disclose exculpatory information and that we are going to exclude the information if there is a failure to collect the materials. I do not practice in this area, but I always thought the prosecution was mainly focusing on the inculpatory evidence and the

Assembly Committee on Judiciary April 3, 2017 Page 18 defense was the one seeking out the exculpatory information. That is not even speaking to the mitigating circumstances, which are usually the life experience of the defendant and those sorts of things. Is the intent to make the prosecution do all the evidence finding, including both sides of that equation? Anna Clark: This bill does not seek to put any new obligations on the prosecutors that do not already exist. You are somewhat correct in that, as defense attorneys, we do take our obligations to investigate our cases very seriously. What this bill seeks to do is to require in black letter law the disclosure of favorable Brady material. Often that material is in the possession of either the police file or the prosecutor's file. If that material is in their file, we would ask that it be turned over. In many ways, we are just asking for the same access to the same evidence that the prosecutors already have. No, it does not create any additional work and it does not create any additional obligations that are not already existing under our current system and current case law and the obligations there. The exclusion of evidence that has failed to be collected is actually the exclusion of evidence that is not turned over within the time frame because we are trying to avoid unnecessary delays. It is not simply if it is not collected, it does not come in. If it is collected and in the file, but not turned over to the defense within a reasonable time frame and they do not meet the exception that we discussed, then it is excluded. We anticipate that being very rare. Assemblyman Pickard: You speak of evidence in their possession. We are also looking at constructive possession. Theoretically, with regard to anything that is included or anything that was captured that they may not have any awareness of, I want to clarify that you are imputing their knowledge to that. If it comes up later—the default is excluded until a judge decides, correct? Anna Clark: The constructive possession—we are actually not breaking any new ground there at all. That comes directly from the case law and it is the constructive possession of information that is already in the police file or investigatory agency's file. The fact that a prosecutor is unaware of that—the case law is very clear that they, in fact, have a duty to make themselves aware of it. We are not going to dictate how that system should operate. Whatever the system the prosecutors and the prosecutors' offices around the state feel is most appropriate for the dissemination of information between the police and the prosecutors, that is a decision they get to make and a system that they get to dictate on their own. We are seeking to get that information from the police and from the prosecutors and to the defense. Assemblyman Elliot T. Anderson: You said there is nothing new and there are no new requirements in this bill. There is nothing in this bill that is not just being codified that is not already case law? Anna Clark: That is correct. Basically everything in this bill is a codification, for the most part, of existing Nevada Supreme Court precedent and United States Supreme Court precedent.

Assembly Committee on Judiciary April 3, 2017 Page 19 The only real substantive change—at least as far as the disclosure of Brady material goes—is the elimination of the materiality requirement on a pretrial basis. The new standard—which comes from Brady—would delete this determination of whether or not the evidence might be material and simply requires that all favorable exculpatory Brady material be turned over in advance of trial. It does leave in place the materiality standard for cases that go up on appeal. Assemblyman Elliot T. Anderson: The reason I have that question is because normally when we have case law being codified, we often see it in the Legislative Counsel's Digest just to indicate that intent and that there is not anything different. In general, I think it would be helpful if you could provide the citations and maybe line them up with what section just to help us in our preparation. I would be appreciative of that. Getting into my specific questions as to section by section, I want to draw your attention to section 8, subsection 2. It discusses that a party can request leave of court to comply with the discovery deadline. Why require a motion? Why not say that you can stipulate? It seems like you are creating unnecessary work for yourselves and for the district attorneys—obviously, things change and you have a lot of communication. It seems that it would be unnecessarily restrictive. Anna Clark: Your question is a good one as to why we would require a motion. It is mostly because we are trying to create a record both for appeal purposes and for transparency purposes. Our district court judges often like to hear if there are still material disputes or if there are problems with material being turned over in advance of trial. That is so they can be aware of those issues for the purpose of managing their own calendars as well as making rulings on those disputes as they come up. As far as it creating additional work, I do not think it does at all. It can be made via a quick, written motion or via an oral motion, which can be done very quickly, as I mentioned before. It would take about a minute to do and to hear. Assemblyman Elliot T. Anderson: My next question is about section 12, subsection 3. I understand what you are doing with the State Bar of Nevada, but does it not seem strange to write "whether or not the charge has been issued or adopted as a jury instruction by the Supreme Court or the State Bar of Nevada?" I do not think we have that power. What if it is on a constitutional basis and if they are doing a jury instruction based upon a constitutional basis? I think it is a strange thing to write in statute regardless of what the Supreme Court says. William Waters: In this regard, for example with the reasonable doubt instruction, the Nevada Legislature has codified the definition of reasonable doubt in Nevada Revised Statutes 175.211. It sets forth the definition of reasonable doubt. Subsection 2 says "No other definition of reasonable doubt may be given by the court to juries in criminal actions in this State." The problem we

Assembly Committee on Judiciary April 3, 2017 Page 20 have here is like what has happened over time. They are using these very old jury instructions and, for whatever reason, the courts have come to believe they are the stock instructions, and that just is not the case. Nevada has never adopted stock instructions. In fact, the Nevada Supreme Court has said repeatedly that we do not have stock instructions in this state. One of the unique things and one of the great things about Nevada is that we do not attempt to make a one-size-fits-all jury instruction for use throughout the entire state. I am sure many people would agree that the north is very different from the south and the south is very different from the north. We should be using very plain language jury instructions that are understandable by your average citizen on the relevant law. Occasionally, judges get the idea that they want to codify these in some sort of booklet through either the State Bar or the Nevada Supreme Court, and those efforts generally do not gain much traction. Committees are formed and one of the problems is that these committees are generally composed of a couple of members of the district attorney's office—both here in Clark County and Washoe County—and the public is not represented in these committees and the judiciary is very often not represented in these committees. Law professors are represented on these committees. To the extent that the Supreme Court may want to someday get around to try and create pattern instructions, I certainly think that the Legislature can sign off on those if they approve of the instructions that are created. The point is that we want to avoid binding every practitioner in the state to jury instructions that are created by a handful of people without approval from this body. Assemblyman Elliot T. Anderson: I am not sure how I feel about substituting my judgment for the Supreme Court wholesale without getting into it issue by issue. It is one thing to talk about codifying a reasonable doubt instruction that the Supreme Court has already looked at based upon a constitutional standard. As a general principle, I am not comfortable saying that I know better than the Supreme Court about jury instructions. The last question I had was in regard to section 9 in talking about a finding of bad faith. How would that interact with constructive possession? Obviously, you are saying that existing case law already deems prosecutors to be in constructive possession of anything in a law enforcement agency. Let us say that the prosecutor district attorney has not personally reviewed the evidence for whatever reason and does not know about it, whether we deem it legally. How would that interact with bad faith if the prosecutor does not know? Could there be a finding of bad faith? William Waters: We do not want to get involved in how the police and prosecutors exchange information between each other, but this piggybacks a little on Assemblyman Pickard's questions to Ms. Clark earlier: Are we making the prosecutors do our investigation? That is generally not true. We, as attorneys, do not get appointed until the defendant is arraigned in court. That can be a period of up to 72 hours; sometimes longer. Vital information is gathered at the moment the suspect is generally arrested or prior to the arrest which we do not have access to and probably never will have access to. That is the concern. Because police and

Assembly Committee on Judiciary April 3, 2017 Page 21 prosecutors work so closely together, my suspicion is that they discuss the case, especially in preparation for trial. This is strictly for the rogue person who sees evidence which is clearly helpful to the defense and decides—for whatever reason, ambition or otherwise—that they are just going to get rid of it. I have never met a prosecutor who has done that. I have never met a police officer who has done that. I found one case where District Court Judge Michael Villani did grant a motion to dismiss based on bad faith failure to preserve evidence. It is an unpublished decision, so it is not citable as a precedent here in Nevada. The state had the right to appeal it to the Nevada Supreme Court. Generally, the state has the right to appeal pretrial decisions of the district court. We do not, as defendants. That was an appeal to the Nevada Supreme Court, which then overturned Judge Villani's decision. I can envision a number of situations how this may or may not play out. I think that if you are a prosecutor, you would talk to the police officer: Does this file compromise every witness statement that you gathered that night, test results that were gathered by your crime scene analyst and so forth? So if that police officer affirms to the prosecutor that it does, then obviously the prosecutor would not necessarily know it. If it came to light somehow, years or decades later, that the police officer did that, we want to be able to remedy it. We are not blaming the prosecutors at that point, but the reality is that the prosecutors and police officers work very closely together, so I do not think it is an unfair requirement that prosecutors and police officers get on the same page with respect to evidence that they are using in a prosecution. Robert O'Brien: I want to add onto that response. Section 9 of the bill actually addresses the issue in two different ways. Section 9, subsection 3 deals with the bad faith section that you were discussing. I apologize, Assemblyman Anderson. You pointed out one of the problems with the way we had sent this in. The codification or listing of cases would have helped along the way on this. That language comes from a case called Sanborn v. State [107 Nev. 399 (1991)], which deals with the destruction of evidence and what the court's remedy should be, depending on whether it was in bad faith or merely negligent. In answering Assemblyman Pickard's question from earlier, subsection 2 actually deals with what happens if evidence has been collected but for whatever reason has not been turned over. Subsection 2 was written in part because there is an obligation on the prosecution to gather exculpatory evidence and, obviously, law enforcement has done a great job gathering inculpatory and exculpatory evidence, all the evidence that is there. Then that information is turned over to the prosecutor and the question is, what evidence gets to the defense? Subsection 2 is attempting to create a deadline by which all parties will know if there is evidence favorable to the exculpatory evidence. It essentially takes the 30-day deadline that this body created years ago, and says that the default is that it has to be turned over, because we do not want to get too close to a trial when someone might lead to a wrongful conviction; or in alternative, since most cases resolve by negotiation in the state of Nevada, if someone is wrongfully accused, we would not want them to accept a deal without knowing that

Assembly Committee on Judiciary April 3, 2017 Page 22 there is evidence showing they are not the correct person being charged with a crime. Subsection 2 actually attempts to deal with the process of disclosure and what would happen if due diligence is not shown by the prosecutor. Subsection 3, as Mr. Waters was discussing, deals more with the destruction of evidence rather than the question of whether or not it is disclosed. Assemblyman Elliot T. Anderson: It does not just deal with bad faith destroyed or lost; it also says failed to collect. I am asking this more theoretically. Let us say it is an honest-to-God mistake. Someone does not know about it, the prosecutor does not know about it, for whatever reasons—maybe they were not diligent enough, or maybe there was not a reasonable investigation and that is why the prosecutor does not know about it. Is that sufficient—under your understanding of this legislation—to make a finding of bad faith? Does your answer apply under current law as well? William Waters: No, the negligent failure to gather, collect, or preserve evidence would not fall under bad faith. Bad faith, as defined in the amendment, is for situations where the rogue actor sees favorable evidence and for whatever reason wants to get rid of it so the defendant cannot have it available to him. I think the scenario you described would fall more under the negligence. Respectfully, to law enforcement, who do a tremendously difficult job, but part of their job is to gather evidence, and not just evidence which tends to point to the defendant. If, in the process of their evidence-gathering, there are witnesses present who can give a statement that is favorable to it that tends to exculpate the defendant, then we want that to be collected. What we do not want, when officers are collecting evidence and interviewing witnesses, is for them to only focus on the confirmation-bias evidence; "Well, this tends to show that he or she did it, so I am going to focus on that to the exclusion of the things which may exonerate the suspect." That would fall on the negligence aspect and it would be up to the judge to determine if that behavior was negligent or not. If it is, the remedy is not dismissal—absolutely not. The remedy is just merely an inference that it was probably favorable to the defendant. I hope that answers your question. Assemblyman Elliot T. Anderson: It does. I am just trying to get into the narrow issue of if that scenario gets into bad faith. I think it is an important question to have clarified for the record. Assemblyman Watkins: My first question is more from a practical standpoint. I noticed on the amendment we moved it to 72 hours. As I sit on this Committee, I have learned that some of our labs have some back up. From a practical matter, is there any crime that would not be able to be lined up in 72 hours because of waiting for evidence to be tested or something along those lines?

Assembly Committee on Judiciary April 3, 2017 Page 23 Robert O'Brien: No. It gets more complicated in the fact that by United States Supreme Court law, there is an earlier hearing—a 48-hour probable cause determination. At that hearing, an independent magistrate finds there is probable cause to hold this person. The bail is set. That finding of probable cause is enough to create the charge itself, which is what the complaint contains and is what the person is going to be charged with. In Nevada, we are a notice-pleading state, simply meaning the prosecutors are not required to lay out all of the details of the alleged crime against the defendant; they merely put them on notice of what crime they are charged with and the bare allegations for how they got there. At that point, they would not need all of the laboratory evidence. There are two cases where this would potentially come up; one is often in controlled substances cases. What traditionally happens, at least in Clark County, is that the Clark County District Attorney's Office, when faced with a controlled substance that has not been tested, they will say they are not prepared to file a complaint, they will ask for 30 days, 60 days, or 90 days to file the complaint, and the defendant is released. That is the traditional way it occurs. There are some courts who treat that request differently and choose not to release the defendant and instead hold them and ask the prosecutor to get a complaint filed. The other one is driving under the influence (DUI). This is where the lab is backed up. The prosecutor, in order to put together their theory of their case, would like to get the blood tested to see what substances were in the suspect's blood at the time of the arrest. Bluntly, you are correct. The lab would be delayed in that. I would argue that it would not necessarily delay the filing of the complaint, as DUIs can be proven through a variety of different ways in Nevada, and the prosecutor would also have the ability to amend that complaint once the substance returns from the lab. Right now, from my experience in DUI court, if there is a delay on a particular case, the lab is returning it usually within 7 days from the first appearance. Assemblyman Watkins: I am trying to piece together the proposed amendment with the original bill. Is there anything in the bill that limits the court's discretion in allowing the continuance of that 72 hours in those two circumstances you are describing? Robert O'Brien: Let me see if I understand your question correctly. In continuing the hearing, do you mean saying that you want the hearing delayed 24 hours and we will come back in one day and see whether the complaint has been filed? Assemblyman Watkins: We are requiring that the complaint be filed in 72 hours, but we are acknowledging these two circumstances that there may be critical evidence which may not be back yet. You said— typically speaking now—if that were to be the case, the prosecutor would come

Assembly Committee on Judiciary April 3, 2017 Page 24 in and say, We need 30 days or 2 weeks, and then the person is released and they still have the opportunity to file the charges. Or the court could keep them in while they wait to file the charges. Is there anything in this bill that would limit that practice now? Would they still be able to go through the practice of going to court and saying, We are not ready yet because we are waiting for evidence to come back from the lab as to X, Y, and Z, and we need another 2 weeks. Would this bill eliminate that practice? [Assemblyman Thompson assumed the Chair.] Robert O'Brien: I do not believe there is anything in the bill that would limit the prosecutor's ability to do that. The intent of the revised language is simply that if a complaint is not filed in 72 hours, the default is that the defendant is released. Assemblyman Watkins: My next question goes to section 3 of the bill, and I do not know if this has been amended. The only sentence at the end—they have constructive knowledge for "all law enforcement agencies," and that is a little concerning to me in that, frankly, they may not know all the law enforcement agencies who have evidence on the person. Maybe U.S. Immigration and Customs Enforcement is doing an investigation, maybe the Federal Bureau of Investigation (FBI) is doing an investigation, and to place constructive knowledge on the prosecutors in those circumstances would not be appropriate. If we put it to the investigating agency, that would seem appropriate. [Assemblyman Yeager reassumed the Chair.] Anna Clark: I think that is an astute observation on the constructive possession for any and all law enforcement agencies. It is written that way, of course, to be broad and try to get as much evidence as possible. The suggestion of limiting it to the law enforcement agency involved in the particular investigation that is at issue in the case is a reasonable modification. It is important to note that we are open and flexible to that type of reasonable amendment to get consensus on this issue. Assemblyman Watkins: As to section 5, subsection 1, paragraph (d), I would like to get a sense of what the intent of these terms is. When the bill says, "mitigate the culpability of the defendant," is that meant to say, if they are being charged with more than one crime, there may be evidence which indicates they are actually liable for the lesser crime and not the full intent of the crime, or does it mean something else?

Assembly Committee on Judiciary April 3, 2017 Page 25 Anna Clark: It is a well-established component of Brady material directly from the case law, both Nevada and Supreme Court, that one of the categories of Brady material is material which tends to mitigate either the crime or the potential punishment of the defendant. Off the top of my head, an example would be where you have three men who commit an armed robbery. One of those men has a gun and the other two are accomplices. Unbeknownst to the two accomplices, the gentleman with the gun shoots the store clerk in the foot and then all three men run out of the store. One of the men, not knowing there was going to be any weapon used, runs back in and provides aid to the victim. That would obviously inculpate him in the crime as an accomplice because he is there, but it would mitigate the crime in the sense that it would mitigate his potential punishment and be relevant from a punishment perspective that he rendered aid to the victim. Assemblyman Watkins: This would not require the district attorneys to perform any independent investigation as to what could potentially be a mitigating factor? We heard testimony in this Committee about the death penalty, where it requires the public defender to basically go through the whole life of the defendant to see what mitigating factors may be there to avoid the death penalty. This would not put any obligation on the district attorneys to do their own independent investigation; but to the extent that they happen to have information that could apply, they have to give it to you. Anna Clark: That is a pretty fair statement. This creates no additional burden or responsibility, and no additional independent investigation on the part of the prosecutors to get this type of evidence. Obviously, defense attorneys are still responsible for investigating their own cases to the best of their abilities as well. This applies to that type of material that is already in the possession or should be in the possession of the police, in the prosecutor's files, and getting it turned over to the defense. Assemblyman Watkins: In the civil context, sometimes there is language at the beginning that says you give all relevant information out, but we all know that all relevant information does not come out. We have to do written discovery to get the rest, and the theory behind that is, Well, I do not know how you are going to present your case. I do not know what your theory is going to be, so I do not know what is relevant to you in that context. I wonder about that application here, if it is appropriate or not in that, theoretically, the district attorney may say, I may not know what your theory is to avoid culpability, so I need some direction from you as to what your theory is in order to provide you with that relevant information. Is that an appropriate analysis or does it not work that way? Anna Clark: It is a good observation that the criminal world and the civil world are different. There are obviously different things at stake. The issue is one that we are trying to solve. You are

Assembly Committee on Judiciary April 3, 2017 Page 26 correct that prosecutors do not often know what our theory of defense is going to be, how we are going to prepare our case, or what we are going to present at trial. The reason for the proposal is to make the rule simpler so they do not have to get into these guessing games as to what might be relevant to us. The rule would be a simple one that, if it is favorable or falls into any of the categories of Brady that we just discussed, it should be disclosed. As defense attorneys, we get to make the decisions as to what we are going to do with the evidence as practitioners, but that does not impact the obligation on the prosecutor to turn it over in the first place if it is in their possession or in the possession of the police. William Waters: For an example, a suspect is charged with robbing a liquor store. Three witnesses say he was wearing a blue hat. During the course of the investigation, police are interviewing other witnesses and one of those witnesses says that he was wearing a red hat. By the way, our client has a red hat. I do not think the prosecutor necessarily needs to know what our defense is going to be at that point. Prosecutors would look at that and say it is a problem in the sense that it contradicts the statements of other witnesses. Rather than say: "Three witnesses said blue and one witness said red, more than likely it is blue, so forget about that one witness." The idea is to turn over the information you have about the red hat. Hopefully you have collected information regarding that particular witness's contact information, and then obviously, when we have that information, we can go out and talk to that person and find out what they saw and what their vantage point was. Assemblyman Watkins: Thank you. I think 99 percent of examples will make sense. The only one I am thinking of is something that may be counterintuitive to the district attorney as to how I am going to present my defense and then later, when looking through the file, I find something that would have helped you with the very unique defense that I was presenting and you did not give it to me, and now they are getting charged with not providing evidence, but you were operating under a unique theory of defense. Robert O'Brien: As part of our supporting letter and exhibits (Exhibit I), "Exhibit B" deals with a case called Steese v. State [114 Nev. 479, 960 P.2d 321 (1998)]. It is an excellent example of the type of situation you are talking about. Mr. Steese spent about 20 years in prison and was eventually found to be innocent. What happened is, within the district attorney's office when they were looking through the police file to determine what to turn over and what not, they found information that the defendant was not in Las Vegas at the time of the crime, that he had been stopped by a railroad detective—he was essentially a hobo hopping trains—and interviewed. Those notes existed and law enforcement was aware of them, but the prosecutor determined they were not material because he was not necessarily sure which theory the defense was going with. I guess it is good to compare this with civil in some ways, because what makes criminal uniquely different—I was shocked when I came from civil over to criminal—is that there are no requests for admissions. There are no interrogatories. There are no requests for

Assembly Committee on Judiciary April 3, 2017 Page 27 production of documents. Criminal defense attorneys have no tools to conduct discovery with the police other than subpoenas. It is our only tool to use in criminal discovery, beyond having an investigator that might go out. The point with Mr. Steese's case is exactly like you said: because the question of his being the suspect the police were looking for was not necessarily the theory that law enforcement and the prosecutors had in their head, the prosecutor declined to turn that over. Twenty years later, a very diligent and aggressive defense attorney on post-conviction found the notes and was able to put together that in fact he was actually innocent. I think that is exactly what we are trying to avoid. By removing the materiality requirement in that section, it removes the question in the prosecutor's mind of, Do I have to turn this over? Does it really fit a theory of defense? They are guessing into the void. They do not know what our theory of defense is. It is a difficult position to be a prosecutor in many ways with Brady as a standard. If you have to think through the defense case, any possibility in the defense case to determine what you turn over can lead to a lot of these problems. That is the intent of section (d) of what we are referring to as "the Brady section." By removing the materiality component, it is intending to say, Let us turn over the information and see if we have the right person to go forward with our trial. Chairman Yeager: To follow up on Assemblyman Watkin's question, obviously, in southern Nevada in the civil context, we have at least one discovery commissioner. I take it that no one at the table is aware of something similar in the criminal context around the state? John Piro: You are correct; we do not have it as it stands right now. Assemblyman Fumo: To dovetail off of Assemblyman Watkin's question, on the books, we have laws that say "a defendant knew or should have known." You are not asking the government of the state of Nevada to go contact Interpol, the Central Intelligence Agency, or the FBI to do your investigation for you, you just want the information that they should be aware of, correct? John Piro: You are correct. Assemblyman Fumo: I am looking at your amendment to section 1 of Assembly Bill 376. "If a complaint is not filed within 72 hours after arrest, the magistrate shall release the arrested person." Would you be amenable to adding "without conditions other than a promise to appear at the next court date given?" A lot of times a judge will say, I am going to order your release but it is going to be on house arrest. We all know that it takes two weeks to get someone out on

Assembly Committee on Judiciary April 3, 2017 Page 28 house arrest sometimes, and the preliminary hearing could have come and gone. It is just a way to keep them in custody longer. I was wondering if you would consider adding that language to this amendment. John Piro: We would be amenable to anything that could build further consensus with this bill and get it passed. Assemblyman Fumo: Nevada Revised Statutes 174.285 talks about the time limits that the state has to turn over discovery. Right now, requests for discovery can be made 30 days after the arraignment. A lot of times, when you have been retained on a case or appointed to a case on the public defender's side, your request for that 30 days after the preliminary hearing has already passed. Are you having incidents where a discovery has been withheld from you prior to? Sometimes I will get retained four or five months ahead of an arraignment. If I could get the discovery ahead of time, cases could be negotiated; I could get a client into drug, alcohol, or some kind of an abuse counseling; restitution payments could be gathered and made. Changing that from 30 days after arraignment to 30 days prior to arraignment, if once a person is retained or knows they are going to be appointed to the case, they can start getting that discovery ahead of time. Anna Clark: If I understand your question correctly, I believe you might be suggesting modifying the timeline for when defense attorneys would request the discovery material? Assemblyman Fumo: Correct. Anna Clark: I do not know from a private practitioner perspective. Obviously, if you are retained prior to arraignment that might be feasible. I can tell you from the standpoint of appointed counsel for indigent cases—I believe the majority of criminal cases filed in southern Nevada will be indigent in public defender cases—that we are simply unaware of cases that arise before the initial arraignment happens. Obviously, we are not appointed until that initial appearance and preliminary hearing. From a very practical perspective, the timeline that is existing in the statute right now makes a lot of sense, that it would occur within 30 days of the arraignment date. I can just tell you from a practice perspective, now the hearing master who sits in lower level is granting oral requests for discovery at the initial arraignment in district court as a matter of practice so that we are ringing the bell essentially as far as the timelines are concerned. Assemblyman Fumo: Is that district court or justice court?

Assembly Committee on Judiciary April 3, 2017 Page 29 John Piro: That would be lower-level arraignment, so it would be district court. Assemblyman Fumo: What about the justice court level? Are we having any problems getting discovery at that point? John Piro: We do have problems getting discovery at the justice court level as well, but we decided to tackle the district court level for the purposes of these two bills. Assemblyman Fumo: Are you interested in amending to getting it, or do you think that would pose a problem so far as getting this passed? John Piro: I am worried that it would pose a problem as far as getting this bill passed. Assemblyman Fumo: I am in support of the bill as it is; I do not want to cause any problems getting it passed, but I would like to see that change eventually made. I also have a question on section 5, paragraph (d). You are talking about leveling the playing field and getting material which tends to exculpate the defendant. Are you having problems getting National Crime Information Center (NCIC) records, local and out of state? Sometimes when a witness is disclosed to the defense, there will be a piece of information and it is difficult for us to obtain it on the defense side. Would you consider an amendment to include NCIC records of every witness that the state intends to call? Anna Clark: We would approve any amendment that would help gain consensus on this issue. I can tell you from a practical practitioner's standpoint that NCIC records are something that we often request. They are not, of course, made available to us as defense attorneys except through the prosecutors and sometimes only through an in-camera review at the district court level. Obviously, one of the goals of this bill is to eliminate any disparate decisions we have where some district courts order those in camera, some order the prosecutors to do them and then disclose that, and we are trying to make this as uniform as possible. We would certainly be open to an amendment to the extent that it does not jeopardize the bill passing. Our biggest concern is consensus. Assemblywoman Krasner: I appreciate your saying how much you care about truth, justice, and fairness. Obviously, those are things that our Founding Fathers took into account when they created our U.S. Constitution and our system of justice. Talking about jury trials and our Seventh Amendment is obviously very important to everyone. I have concern about removing the materiality requirement. Right now, we have prosecutors looking at what they

Assembly Committee on Judiciary April 3, 2017 Page 30 believe is material to a case and maybe it is one folder or two folders. Is it now going to be three Costco-size warehouses of all material, whether it is material to the case or not? How does a jury go through three Costco-size warehouses of material when that material has not even been determined to be material to the case? This concerns me. It puts a huge burden on regular people who are a jury of our peers to go through evidence that has not even been deemed material to the case. Anna Clark: Your concern about the volume of material evidence is on a case-by-case basis. There are some cases where there are banker boxes full of evidence, and there is simply nothing we can do about the volume of evidence that is created in any criminal case. Most of our cases are much less voluminous than that. As far as removing the materiality requirement, we are not trying to put any additional burden on law enforcement or on the prosecutors. The threshold for disclosure is still Brady material. That is still the touchstone. It will still only apply to evidence that meets that threshold requirement of being favorable in some way. It will not change anything about the way the police currently do their work, their incredibly important investigative job that they do a very good job with, and it will not change the way they collect evidence or the amount of evidence they collect. Similarly, it will not change the way the prosecutors prepare their cases. The basic rule—and it is one of simplicity—is that if they have it, we should have it. If they have it, they should turn it over. I hope that answers your question. William Waters: We are trying to front-load the exchange of information before we get to trial, before the jury is empaneled and before they are going to start hearing evidence. If we try to settle all these decisions prior to trial, then obviously, once we get all the information, what is ultimately going to go in front of the jury is ultimately controlled by the judge—if the judge does not think the evidence is relevant or admissible or if we do not have witnesses that can necessarily authenticate it. Your example is a very good one, and we certainly do not want to burden juries with needless information that is not necessary to their decision making. All of that will be settled prior to trial. As long as everyone is complying and we have all the information, we can settle what is going to be presented to the jury; either prior to trial or in the course of trial, when parties attempt to introduce evidence and the judge makes a ruling on its admissibility. Assemblywoman Krasner: In talking about how both sides get together and everything will be sorted through before trial, why in the amendment are we trying to get rid of the meet and confer requirement? That does not make sense. Chairman Yeager: That was my amendment. Truthfully, I thought, due to the criminal volume that we face particularly in southern Nevada, that it was somewhat unrealistic for it. I was also very wary of wanting to strain law enforcement in that way of having to send an officer on every single case to do a meet and confer. In talking to the proponents and opponents of the bill, it was

Assembly Committee on Judiciary April 3, 2017 Page 31 widely believed that the officers' time would probably be better spent out on the streets protecting our communities. For the time being, I made a decision that I do not want to advance that part of the bill, and my hope is that other portions of the bill can take that into account without needlessly making people go to meet and confer and file documents with the court. I can certainly follow up with you offline as well if you want to talk about it a little more after today's meeting. Assemblywoman Krasner: Thank you. I am worried about section 3 in A.B. 376 that talks about any and all law enforcement agencies. I know you told us it was not going to be any and all, but of course, it does say "any and all law enforcement agencies," which would be this state, other states, other countries, and Interpol. This is a huge request, and it does not even have to be material evidence. It almost seems like the two fiscal notes that we do have are not going to be enough when you include that sort of burden. Anna Clark: The suggestions and, to be blunt, the criticisms are fair. When it says any and all, perhaps there is potential there for it to be abused. We are certainly open to amending that language to more specifically tailor it to the facts of the specific case. I think it is important to note that the threshold for that is still evidence that would fall under the statute, otherwise discoverable material or material that falls within Brady. Assemblyman Wheeler: We are talking about a lot of extra motions, especially given the bad faith provisions that are in this bill, and yet I am hearing that there are not going to be any extra motions. To me, it seems like there are going to be a lot of extra motions on this. Has anyone done any kind of a forecast from your side on what these extra motions may cost the court or how it may slow it down? My second question would be like what Assemblywoman Krasner asked. If we are slowing the courts down and we are answering a lot of extra motions, would that not be quite costly? I do not understand why the fiscal notes were not germane. Anna Clark: I think your question pertains most specifically to the extra motions in section 8 or 9 in which the party who is seeking additional time to disclose information or evidence would have to make a motion. I do not believe that any of the provisions of the bill require that that would be in writing, and I suspect that the more common practice would be that it would be a quick oral motion which could be done at any time, at any already-scheduled hearing or court appearance or status check on any criminal case. It would not require the scheduling of an additional time slot. I think the motion could be made based on our experiences with how those Bustos motions I referenced earlier in my presentation are currently handled. They literally take moments, maybe less than that, to swear someone in and to just state on the record what they are trying to accomplish, what their diligence is, and the reason for the

Assembly Committee on Judiciary April 3, 2017 Page 32 necessity of an extension. That provision, of course, would apply both to the prosecutors and the defense. I would anticipate it would actually take no additional time for the court and no additional time for the practitioners. The only other provision related to the scheduling of motions is to the discovery in the Brady motions. I can tell you that those motions—at least from our office down south—are filed as a matter of routine practice and heard by the courts as a matter of routine practice in the vast majority of departments. It would not create any additional time or cost. Assemblyman Wheeler: You spoke about fundamental fairness and how it works both ways. Since it works both ways, do you give the prosecution any incriminating evidence that you come across? Anna Clark: I think the fundamental fairness point is a good one. This rule does not give us the unqualified right to have access to the prosecutor's entire file. For instance, there is always going to be information that is privileged. That privilege applies to all parties. Most of the inculpatory evidence is already in the prosecutor's file. As far as disclosures that go both directions, the statutes already allow for the notion of reciprocal discovery. We are already required to turn over discoverable material as well. Nothing in this bill changes that and everything applies equally to both parties. For matters of privilege, obviously, if there is inculpatory material from the defense perspective that is because of confidential attorney-client conversations or privileges, we would not be required to turn over inculpatory, but I can assure you that if we are in possession of exculpatory, we will be the first ones knocking at the door of the district attorneys or calling them on the phone with that material. Chairman Yeager: Is there anyone who would like to testify in support of the two bills being heard right now, either A.B. 356 or A.B. 376? Amy Coffee, Attorney, Clark County Public Defender's Office; and representing

Nevada Attorneys for Criminal Justice: I am here today on behalf of Nevada Attorneys for Criminal Justice. My esteemed colleagues have done an excellent job, both in their testimony and their written submission. The Nevada Attorneys for Criminal Justice support both bills, A.B. 356 and A.B. 376; however, I would note that A.B. 356 does not have three important sections that are in A.B. 376, which are section 1, regarding the 72-hour hearing; section 12, regarding the jury instructions; and section 10, regarding subpoena power. While we support both bills, we do think those three sections are vitally important, so whatever bill passes out, we would like to see those included. I realize a few Assembly people are attorneys—not necessarily criminal attorneys—and I know some of you are not attorneys. There was some mention about whether this bill just codifies existing law and if it would be helpful, we can send up a few of those cases. There

Assembly Committee on Judiciary April 3, 2017 Page 33 is a particular case named Brady and a case named Kyles [Kyles v. Whitley, 514 U.S. 419 (1995)]. We can certainly send up those cases, which, if you read them, you do not have to be a lawyer to understand those cases and you can also understand where the language comes from that is in this statute. I will briefly address the 72-hour hearing. This is a very important concept and is very important to the fundamental rules of justice that we do not, in this country, arrest people and put them in jail without charges being filed. That is a very important concept, that we do not get to round people up and throw them in jail for no reason. That is why the 72-hour mark is very important. That is when the state has to say what the charges are; that is when an attorney gets appointed. I just want to make this clear because sometimes—there was an issue brought up about lab reports—some cases do take a long time for the district attorney to get all their evidence. The remedy is not that the district attorney does not file charges; it is that the person is released. They are released and essentially free until and if charges are filed, which is why the person cannot be on house arrest or anything like that, because there would be no charges pending against the person. I want to reiterate that it is a very important concept that the state does not lose anything. It is just a timing issue that the state cannot keep the person in jail while they gather their evidence. They have three days to do it or they release them while still gathering the evidence. I am going to touch on discovery again. This codifies a lot of the existing law and obligations and duties. This would not burden the state. It would not cost any money. Ms. Clark emphasized that if we have an efficient and fair process and everyone is on the same page, it can make things more efficient and prevent delays, which is what we see now. If we prevent delays, that actually saves money for everyone and the whole process in itself. I do not believe that anything in these discovery statutes would cost money, should have a fiscal note, or include any burdens that really are not there. What we are doing is making sure that everything is clear, that it is clearly written, that it is uniform across the state, and that everyone is clear on the standard. Mr. O'Brien mentioned the Steese case. That is very significant because a man spent about 20 years in prison for a crime he did not commit. He was declared innocent. I want to be clear about something. The district attorneys had evidence that Mr. Steese was in fact in a completely different location when the murder occurred and there was some talk that maybe the district attorneys did not know the theory. I want to make clear that the defense attorney in that case did file an alibi notice, which, by law, is required to be filed before trial. So the state knew there was an alibi defense, knew the defense was going to be that Mr. Steese was not present when the crime occurred, had evidence that Mr. Steese was not present when the crime occurred, and subsequently buried and did not disclose that evidence. I only point that out to demonstrate why this is so serious and why we need this bill. Regarding the section regarding jury instructions: there was something brought up about why we have that language regarding the State Bar. I have been practicing in the public defender's office for 17 years, and occasionally there are committees and groups that want to come up with a set of instructions. Often these groups are heavily influenced by district

Assembly Committee on Judiciary April 3, 2017 Page 34 attorneys. Various groups have come and gone. We just want to make it clear that unless there is a law passed with a set of binding instructions, that any particular set of instructions that has come up by various groups still can be challenged. They certainly would be used, they would be looked at, and it would be important. But it would just allow for the fact that any and all instructions and evidence could be considered. We think that that is important. I want to address the section about bad faith. There has been a lot of talk about this. Again, this is one of those sections that perhaps there could be some modification on the language. I believe law enforcement and prosecutors are going to come up here and have some comments about this section. However, I think it is very important. By having a statute in place, it tells the police officer—from the detective to the patrolman to the civilian worker at the police department to the lowliest technician—and puts them all on notice that this is an important issue about destroying evidence. What happens in some cases is that some things get inadvertently destroyed, and I have seen this. Then it becomes, Well, you know, it was an administrative thing, this person did this, and paperwork got signed. If the form changes a little bit, we understand that we have to take into consideration the concerns of law enforcement. I think it is important to put something in the statute, to put everyone on notice that handles evidence why this is so serious. Only by codifying this and having a statute can we really get that message across. We certainly would rather work with our opponents and have something passed than to not have anything pass. The Nevada Attorneys for Criminal Justice supports both bills. We prefer to have those additional sections. There is a section giving us subpoena power, and that is to ensure that we can go out and investigate our cases. As many people pointed out, we do not have the tools that civil practitioners have. We have very little; as a matter of fact, we are often at the mercy of the prosecutors and law enforcement who essentially work for the prosecutors. Having the ability to subpoena is a small thing that helps level the playing field. Sean B. Sullivan, Deputy Public Defender, Washoe County Public Defender's Office: I want to register our support for both bills on the record. I think my colleagues did an excellent job outlining all of the issues, and we are in support of both bills with the proposed amendments. We believe it streamlines the process, promotes a sense of fairness for both parties concerned, and preserves the integrity of the system. Alanna Bundy, Intern, American Civil Liberties Union of Nevada: We would also like to offer our support for both bills. Both bills ensure the defendant receives a speedy trial and is not held without cause, and promote practices that belong in a fair trial in which both the prosecution and defense have access to pertinent information. Tonja Brown, Private Citizen, Carson City, Nevada: We support both bills and the proposed amendments. I would like to add—there were some questions and statements made. One was that court creates a definition. What that definition is—which I have seen—is called work product, in which a prosecutor would withhold exculpatory evidence, evidence favorable to the defense, which would be discovered years

Assembly Committee on Judiciary April 3, 2017 Page 35 later, and the judge would deem it a work product. The work product was the handwritten notes of the prosecuting attorney defining a court order to turn over every piece of evidence. Every piece of evidence that was not turned over was favorable to the defense. This is another way that they get away when the courts deem a prosecutor to be not practicing in bad faith, but it is deemed a work product. This is something that has not been discussed here. I have proposed an amendment (Exhibit J). We talk about those during the trial proceedings, but what happens after the trial is over and it is discovered that prosecutors have withheld valuable evidence that would have made a determining factor in a not guilty verdict to be rendered? This amendment would be a remedy, so I am asking that a section 13 be created stating that if any time after conviction it is brought to the attention of the court that "a party has failed to comply with the provisions of NRS 174.234 to NRS 174.295 inclusive, and sections 3, 4, and 9 of this act, a petitioner must file a petition for exoneration . . . ." Chairman Yeager: I believe we have the amendment on the Nevada Electronic Legislative Information System (NELIS). It would be helpful if you could summarize what it does. Tonja Brown: This would be the remedy in situations where the courts are deeming where there were problems in section 9, subsection 3, and this would give them the opportunity to remedy to exonerate them. In 2010, the Nevada Supreme Court issued an order stating that they lacked jurisdiction to grant petitions for exonerations, and they asked that legislation be created. I believe this amendment could fit into this bill. It would be a remedy for those in which prosecutors who have willfully destroyed and withheld exculpatory evidence from the defense and a person was wrongfully convicted, has gone through the process of a post-conviction, direct appeal, writs of mandamus and habeas corpuses, and the courts have always sided with the prosecution. This would be that remedy. I beg of you to accept this amendment and give those who are innocent an avenue to get out because, in most cases, they are now procedurally barred. They cannot do anything. Chairman Yeager: Even if the amendment was not adopted, do you support the bills as presented today? Tonja Brown: Absolutely. Wendy Stolyarov, Legislative Director, Libertarian Party of Nevada: The Libertarian Party of Nevada wholeheartedly supports these bills as measures equalizing the balance of power between the state and the defendant. We believe that due process requires full transparency by the state during discovery. Any concealment of exculpatory information from a defendant or his defense is an abridgement of this fundamentally

Assembly Committee on Judiciary April 3, 2017 Page 36 American principle of our justice system. A jury cannot make a fair decision without a complete picture of the evidence before them, and any failure to disclose exculpatory evidence undermines the quality of their work and our justice system. We also appreciate and endorse the amendments offered by John Piro and the Clark County Public Defender's Office, as we believe they make further constructive improvements to A.B. 376. The amendment to section 1 alone, which prevents people from being held for weeks without charge, is a vital defense of an individual's essential right to liberty. We also particularly appreciate amendment 4 of section 9 of this bill, establishing sanctions for failure to comply with Nevada's discovery statutes. As rare as these situations may be, without penalties for failure to disclose exculpatory evidence, the balance of power remains in the hands of the state, and the risk of preventable wrongful convictions persists. I will echo the statements made by the public defender's office and say that this bill is essential in assuring a fair system of justice congruent with national standards. If our loved ones were accused of a crime, we would want standards like these in place for their protection. The Libertarian Party of Nevada strongly encourages you to support these bills, both for the practical benefit of Nevadans and in the interest of moving our system towards the ideal of justice. Chairman Yeager: Is there anyone else in support of either of the bills? [There was no one.] Is there anyone who is going to testify in the neutral position on the bills today? [There was no one.] I will open up neutral testimony. [There was no one.] We will now go to the opposition testimony on the two bills. I want to note that there have been a number of unsolicited fiscal notes that were submitted on the bill (Exhibit K), (Exhibit L), and (Exhibit M). As everyone knows, we are not a money committee, so in terms of the fiscal side, if you could limit your comments as to why you think the bill as written would require something more than is required now, I think that is an effective way of addressing the fiscal note without getting into the numbers portion of it. Certainly, anyone up here in the Committee can look at the fiscal notes and look at how they were determined. I think for ease of testimony it would be most helpful if you could limit the financial talk. Christopher J. Lalli, Assistant District Attorney, Clark County District Attorney's

Office: I have been a prosecutor and a criminal practitioner for 23 years. Assembly Bill 356 and A.B. 376 address critically important concepts in the Nevada criminal justice system. However, they disrupt finely balanced systems of discovery in this state and replace them with disharmony, which will in reality stymie the prosecutorial function. We heard this morning that this legislation would streamline, that it would be more fair, and it would ensure that the innocent are acquitted. I submit to you that it does none of those things.

Assembly Committee on Judiciary April 3, 2017 Page 37 Prosecutors are not ordinary lawyers. We are called to a higher level of public service. As the United States Supreme Court recognized in Strickler v. Greene [527 U.S. 263 (1999)], prosecutors enjoy the special status as a representative of a sovereignty "whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." This solemn obligation is not one taken lightly by Nevada prosecutors. It is a responsibility we celebrate, that we train on, and that we indoctrinate into new members of our ranks. Yet in order that we are allowed to fully embrace the responsibilities with which we have been charged, it is important that policy makers do not unduly and unreasonably burden prosecutors to the point where they become overwhelmed. In a 2011 faculty publication from the College of William and Mary Law School entitled, The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants, academics warn of the excessive burdens placed upon America's prosecutors. At page 301 they write:

Although scholars have long decried the excessive caseloads of public defenders and appointed counsel, little attention has been paid to the huge caseloads handled by prosecutors in many large counties. Across the country, many prosecutors are tasked with handling five or even ten times as many cases as guidelines recommend for public defenders. Obviously, excessive prosecutorial caseloads are harmful to victims, who receive little attention to their cases, and the public at large, which must tolerate guilty defendants being acquitted. But the problem is much bigger than that. Excessive prosecutorial caseloads are also very damaging to criminal defendants.

The article proceeds to explain why that is. The added burdens placed upon prosecutors by A.B. 356 and A.B. 376 are not founded upon the United States or Nevada Constitutions, irrespective of what you might have heard this morning. And just as crushing prosecutorial caseloads work to the disadvantage of criminal defendants, so too will unreasonable and overbroad discovery obligations. Assembly Bill 376, section 1, Clark County Public Defender amendment 1, creates a new time frame for the filing of criminal complaints. Currently, NRS 171.178 requires that a criminal complaint be filed "forthwith." In an overwhelming majority of cases in Clark County, this occurs within 72 hours. But not in all cases. Some cases require more analysis and investigation before a charge is filed. These are murder cases. These are cases involving sexual predators. Recently, there was a case submitted involving a drive-by shooting, a retaliatory drive-by shooting by a separate gang group, followed by a number of these individuals turning their weapons and firing on police officers. There were witness statements to go through, hours of video to go through, and to do that in a haphazard manner as what was suggested and just file an amended criminal complaint later on is certainly not acceptable. Perhaps the greatest problem is posed in felony DUI cases. These are cases where the victim has suffered substantial bodily harm or death. In most cases, they require a chemical analysis of the defendant's blood and this cannot be done in 72 hours after arrest. The proposed

Assembly Committee on Judiciary April 3, 2017 Page 38 changes in this legislation would result in these individuals being released from custody and would pose a grave danger to our communities. Under current law, if prosecutors need additional time in which to file a complaint, they must provide this justification to a court. If the court believes the justification is acceptable, it will give us additional time in which to file a charge. If not, the defendant is released. The court provides the necessary safety value, providing an agile solution to the filing of formal criminal charges. We heard this morning that perhaps some defendants languish in jail for 30, 60, or 90 days. I am not aware of that happening and I would tell you if it is, it is an absolute violation of their due process rights. It does not happen. Moreover, constitutionally, at the 48-hour mark, a judge is required to review the charges upon which a defendant has been arrested and the probable cause supporting it. That happens at 48 hours—not a week later, not 10 days later, but 48 hours later. If there is insufficient probable cause, a defendant is to be released. The current system is a good and fair one and should not be changed. Chairman Yeager: In the current process where the district attorneys or city attorneys try to demonstrate good cause to hold someone longer than 72 hours, is there any statutory guidance for the judge in making that determination of what they are supposed to consider or what would constitute good cause? Is it a case-by-case basis? Christopher Lalli: That is done on a case-by-case basis. The language, as you have heard, is forthwith. That is the language in the statute, and I interpret that to mean as soon as possible. Every case is different, as you well know. That is the statutory language. Discovery obligations would become unbalanced. Section 3 of A.B. 356 and the Clark County Public Defender's amendment 2 of A.B. 376 would create an unbalanced system of discovery that would work to the disadvantage of prosecutors and victims. With respect to witness statements, as an example, NRS 174.235 addresses the obligations of the state, and NRS 174.245 addresses the obligations of the defendant. Under current law, they impose the same obligation upon both sides. We are required to disclose witness statements of those witnesses we intend to call in our cases. There is harmony. Section 3 of A.B. 356 and the Clark County Public Defender's amendment to A.B. 376 creates a greater obligation on the part of the state while leaving the obligation of the defense untouched. The same is true with respect to books, papers, documents, or tangible objects. Nevada Revised Statutes 174.235 addresses the obligations of the state, and NRS 174.245 addresses the obligations of the defendant, and once again, under current law, there is harmony. They impose the same responsibility upon both litigants. We must disclose this material if it is to be used in our case-in-chief.

Assembly Committee on Judiciary April 3, 2017 Page 39 Section 3 of A.B. 356 and the Clark County Public Defender's amendment to A.B. 376 create a greater obligation on the part of the state, while leaving the obligation of the defense the same. This one-sided treatment of litigants in criminal proceedings begs the question: why is this being done? What possibly could be the motivation for destroying the harmony that exists in the system, a system that has been in place and worked for 20 years? As the venerable Justice Cardozo recognized in Snyder v. Massachusetts [291 U.S. 97 (1934)] and in language approved by our own Nevada Supreme Court in Homick v. State [108 Nev. 127 (1992)], "Justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true." This legislation does not keep the balance true. It is bad law. Assembly Bill 356, A.B. 376, and the Clark County Public Defender amendments thereto radically change prosecutorial responsibilities under Brady v. Maryland [373 U.S. 83 (1963)]. In Brady v. Maryland, the United States Supreme Court held that the prosecution in a criminal trial must disclose to the defense information that is both material and exculpatory. In Giglio v. United States [405 U.S. 150 (1972)], the Court made clear that Brady information includes not only information directly related to the crime, but also, under some circumstances, information that would negatively affect the credibility of a prosecution witness. In United States v. Agurs [427 U.S. 97 (1976)], the United States Supreme Court held that the prosecution must disclose Brady information even if the defense has not specifically requested it. In Kyles v. Whitley [514 U.S. 419 (1995)], the Court held that prosecutors have an affirmative duty to learn of, as well as to disclose, favorable evidence known to "others acting on the government's behalf in the case, including the police." Reference to Brady and its progeny already exist in Nevada law. Nevada Revised Statutes 174.235, subsection 3, provides as follows: "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." So Assemblyman Ohrenschall's concerns that these concepts are not codified in Nevada discovery law certainly do not ring true. They are contained in our laws. Without any thought to the provisions of our state discovery law, section 3 of A.B. 356 and the Clark County Public Defender's amendment 2 to A.B. 376, add subparagraph (d) to NRS 174.235 which creates a new, super-Brady standard, one not recognized by our state and federal Constitutions. I would also note that a survey which was conducted that included statutes and case law in California, Arizona, Utah, Oregon, and Colorado, also do not deviate to the radical extent this proposed legislation would deviate from established constitutional norms. Specifically, these changes would require Nevada prosecutors to collect all exculpatory material with no regard to the materiality of the language. It significantly expands our responsibilities. Section 3 of A.B. 356 and section 5 of A.B. 376 create an obligation to conduct mitigation investigations on the part of the prosecution. There was testimony earlier today that our obligations would not change. That is patently false information. It is not correct, and it is an obligation that is placed squarely on the shoulders of prosecutors. I would direct this

Assembly Committee on Judiciary April 3, 2017 Page 40 Committee to the language lest there be no mistake. If you look at A.B. 356 at page 6, beginning at line 8, "The prosecuting attorney has an affirmative obligation to seek out and disclose exculpatory materials . . . ." Virtually the identical language is found in A.B. 376 at page 4, line 44, "The prosecuting attorney has an affirmative obligation to seek out and disclose to the defendant any and all material which tends to exculpate or mitigate the culpability of the defendant . . . ." This is not the current status of the law in this state or in any other state, and it does place upon the prosecution a new obligation. Cases submitted for prosecution do not contain this information. The bill, therefore, creates an unfunded mandate in the form of this obligation that prosecutors undertake a mitigation investigation on the defendant's behalf. As has already been discussed this morning, a new provision is created which deems the prosecution to be in possession of all materials held by "any and all law enforcement agencies," without limitation, whether or not they affect the case at hand. This is not how Kyles has been interpreted. Kyles has been interpreted to limit the realm of this material to law enforcement agencies and the prosecution who are involved in the prosecution or investigation of the case at hand. In Clark County, we receive submissions from approximately 27 different law enforcement organizations, any of which may have materials that someone for some reason in some case may deem to be exculpatory to a defendant for some purpose. That is not what Brady and its progeny are about. In addition, there are federal law enforcement agencies which would fall under the umbrella of the proposed, imputed possession language contained in this legislation. These agencies include the FBI, the Drug Enforcement Administration, and Immigration and Customs Enforcement (ICE). By its very language, the proposed amendment would require Nevada prosecutors to contact ICE, inform them of the pending case against a defendant, and request from them any exculpatory evidence they may have in their possession. This is a bad idea. Prosecutors will be unable to comply with this vastly expanded obligation at current staffing levels. Therefore, the Clark County District Attorney's Office and others have determined that additional staff, attorneys, investigators, and support staff will be necessary to comply with these heightened obligations. Chairman Yeager: Would you give me a sense of how much longer you think your remarks are going to be? I only ask because I have a number of people who signed in in opposition and I want to make sure that everyone gets a chance to say something. Christopher Lalli: I anticipate approximately fifteen more minutes. Chairman Yeager: If you could somehow squeeze that into about five to ten minutes, it would be much appreciated. We understand that the Clark County District Attorney's Office is in opposition to this bill, but if you could speed it along as much as possible, I just want to make sure everyone gets a chance to come up and say something before we have to close the meeting.

Assembly Committee on Judiciary April 3, 2017 Page 41 Christopher Lalli: I will. There were a lot of things said that I think require a response, so I will do my best to do that. Chairman Yeager: I certainly understand that. I would also invite you to submit anything in writing. If you have written comments—it looks like perhaps you are reading off of something—and if it is appropriate, if you would like to submit it afterwards, that would be possible as well. Christopher Lalli: Section 3 of A.B. 356 and section 5 of A.B. 376 create new procedures to be employed when a court addresses discovery motions. These procedures require the motion: 1) must be set for hearing; 2) the court must rule on each and every specific request made; and 3) the court must prepare an order with its ruling on each of the specific requests. No other motion in the criminal justice system is required to be dealt with in this manner. District courts can summarily rule on motions which obviously lack merit. Even the Nevada Supreme Court routinely addresses full sections of contentions raised on appeal in summary fashion. Why should motions for discovery be treated any differently? There is also the practical reality of what is being done in Clark County and in other jurisdictions with respect to the filing of discovery motions. Specifically, the Clark County Public Defender has been filing discovery motions in every case they handle, and that by itself—certainly there is nothing wrong with that—is a sign of good advocacy. However, it is done without first contacting the prosecuting attorney and seeking to obtain specific items and then bringing to the court those items upon which the state and the defense could not agree. Without making any effort to obtain the materials from the prosecutor, we are seeing motions filed for discovery, and these are not motions which thoughtfully address discovery issues. They are boilerplate. As an example, I have a motion filed—Nevada v. Scott Shirley, a case currently pending in Clark County. It is a relatively straightforward drug case. The defendant is charged with conspiracy and trafficking in methamphetamine. The Clark County Public Defender filed a discovery motion in this case. It was filed on February 13, 2017, so it indicates the current practices in our jurisdiction. It is a 37-page motion and contains 38 specific requests. One of the requests is for prior allegations of sexual misconduct or sexual knowledge made by the victim. This is a drug case. There is no victim. It requests law enforcement personnel files, even though it is well settled under state and federal law that the defense must have some prima facie evidence before prosecutors and defendants can have access to such files, and no prima facie showing is made. It requests medical records, even though there is nothing to suggest that medical records exist. It requests identification and misidentification of witnesses made in the case. All of the witnesses who would be called are police officer witnesses and identity is not an issue. It requests information related to a refusal to cooperate. This request consists of the following: Information indicating whether the

Assembly Committee on Judiciary April 3, 2017 Page 42 certifying agency has notified the United States Citizenship and Immigration Service that the alleged victim has unreasonably refused to cooperate in the investigation or prosecution of the crime. Again, this is a drug case. There is no victim. Let us consider this motion in light of the procedural requirements regarding discovery motions contained in the proposed legislation. Why should a court be required to specifically rule on frivolous requests that have no relevance whatsoever to the case at hand? If litigants are not required to take the time and file relevant, well-constructed, non-boilerplate motions, why are we requiring courts to take the time to treat them as such? Motion practice related to discovery motions was recently addressed at a recent district court judges meeting that I attended. Needless to say, many judges voiced their dissatisfaction with respect to the public defender's practice of filing these boilerplate motions in their cases. You need not take my word for it. I urge you to reach out to a judge in the Eighth Judicial District Court who handles criminal matters and ask them how they view what is happening in Clark County with respect to these motions being filed indiscriminately in our cases. Chairman Yeager: I certainly understand what you are referencing, but is your position that discovery motions should not be allowed at all and judges should not be made to rule on those? Is your opposition, based on what I think we are hearing, that some of these motions you believe are filed in a frivolous or nonthoughtful manner? Christopher Lalli: As I said at the beginning of my comments, Mr. Chairman, I think it is appropriate and laudable that public defenders and defenders of all kinds are filing discovery motions in cases. They ought to be filed after an attempt to reach out to the prosecution to determine if what they really want can be obtained without going to court and litigating it and without filing boilerplate motions, which is what is happening in Clark County. Chairman Yeager: I understand that; I just want to make sure the record was clear that your opposition is not to allowing defense attorneys to file discovery motions. It appears your opposition is based on the manner in which some of those are filed. Christopher Lalli: It is. The comment was made this morning that this legislation does nothing to change remedies for discovery violations, and I certainly view that differently. Section 9 of A.B. 376 and section 6 of A.B. 356 change the remedy for discovery violations. Under current law, there are three potential remedies when this occurs. They are found in NRS 174.295 and include: 1) an order that the party to permit the discovery or inspection of materials not previously disclosed be made; 2) the granting of a continuance in a case; or 3) prohibiting the party from introducing the evidence or the material not disclosed. That would be suppression.

Assembly Committee on Judiciary April 3, 2017 Page 43 Under current law, the court can pick the remedy which best fits the circumstances. Under the proposed amendments, the court must exclude the evidence. How does this reconcile with other remedies, which are still contained in the statute? What is worse, the Clark County Public Defender amendment 4 to NRS 174.295 would require evidentiary hearings, including the calling of witnesses associated with some of the discovery motions. Once again, this is a bad idea which would further bog down the court system and inhibit the administration of justice. Section 6 of A.B. 356 and section 9 of A.B. 376 add remedies for allegations of bad faith discovery violations for prosecutors. These remedies are already well settled in Nevada law. Pursuant to Sanborn v. State [107 Nev. 399 (1991)], the defense is entitled to a negative implication jury instruction in certain circumstances when the state mishandles evidence. Similarly, Mortenson v. State [115 Nev. 273 (1999)] and Sheriff v. Werner [112 Nev. 1234 (1996)] discussed the possibility of dismissal of a case should the state destroy evidence in bad faith. This body of law remains in place today. It is available to litigants today without any legislative action. What is the legislative need to include such remedies in a statute? Moreover, a review of statutory schemes in other states to include California, Arizona, Utah, Oregon, and Colorado, do not include anything even remotely close to what is being suggested here today. I have another question. What is the remedy when the defense violates the discovery statutes in bad faith? There is clearly an absence of jurisprudence in this area in our state. Why is no such remedy included in this section? Section 12 of A.B. 376 changes the procedure associated with instructing juries on the applicable law in a given case. Jury instructions are critical to the administration of justice in a criminal jury trial. They provide the framework by which juries analyze the facts to determine whether a defendant is guilty or not guilty of a given charge. Many jury instructions that we use in our state have been provided by the Nevada Supreme Court in various cases and opinions that they have announced. The subject matter of these instructions include such areas as reasonable doubt, self-defense, willful, deliberate, and premeditated murder. Many of the penalty instructions in a death penalty case have been mandated by the Nevada Supreme Court. Is there a suggestion that those instructions ought to be overruled by the simple musings of a defense attorney or prosecutor in any given case? The jury instructions given by the court are scrupulously analyzed by the Nevada Supreme Court and the Nevada Court of Appeals during the state appeals process. They are also reviewed by federal courts during federal habeas proceedings. In any given case, instructions may be reviewed by federal district courts, federal circuit courts of appeal, and even the United States Supreme Court. To remove discretion from our district courts and allow a lower standard for the presentation of instructions to criminal juries is, quite simply, playing with fire. To do so substantially increases the risk that a case may be reversed somewhere in the appellate or habeas process and increases the chances that a guilty person is found not guilty by a jury with obvious consequences to society.

Assembly Committee on Judiciary April 3, 2017 Page 44 The proposals contained in section 12 of A.B. 376 run contrary to existing state law as it has been determined by the Nevada Supreme Court in Riley v. State [107 Nev. 205 (1991)] which holds that a defendant is not entitled to an instruction when the law therein is substantially covered by other instructions given to the jury. Similarly, language in the Clark County Public Defender amendment 5 regarding the defendant being entitled to a jury instruction on his or her theory of the case is already settled law in Nevada in the case of Alder v. State [95 Nev. 339 (1979)]. One other point is worth making here. The Nevada Commission on Statewide Rules of Criminal Procedure—not a prosecution group, but the Nevada Supreme Court—has commissioned a working group devoted to the creation of a uniform set of Nevada criminal jury instructions. It is astounding that that was not reported to this Committee earlier this morning. Section 12 of A.B. 376 and Clark County Public Defender amendment 5 undermines the work that is being done by the judges, prosecutors, and defenders throughout the state, some of whom are with the Clark County Public Defender's Office, in their effort to create a uniform system of criminal jury instructions in this state. Two cases were mentioned, and I will not go into them because my time does not allow me to, and they speak ill of things that have occurred in Clark County, specifically by my office. One was the Victor Villalta case where it was represented to you that the district attorney was in possession of exculpatory evidence "from the get go" and we did not turn that over. That is simply not what happened in the case, and I would ask you to do your own research into what occurred. That did not happen. Also, with regard to the Steese case as being a case of actual innocence, I can tell you that Frederick Steese entered a plea of second-degree murder at the conclusion of all of the habeas proceedings, hardly something that would be done by someone who is actually innocent. Assembly Bill 356 and A.B. 376 do nothing to improve criminal discovery in the state of Nevada, and I would urge this Committee to reject both of them. Chairman Yeager: I have a question for you about the settling of jury instructions. I think your position is apparent on the language that is there in terms of instructions that can be proposed. Do you have any opposition to requiring the settling of jury instructions to happen on the record in court rather than in judges' chambers? Christopher Lalli: The settling of jury instructions occurs in open court. This concept that something happens in some dark room without the ability to then put something on the record and perfect a record for appeal certainly is not the case. I can tell you, as a former homicide prosecutor—I have handled cases with in excess of 150 jury instructions, and it is not practical to willy-nilly start that process in an open courtroom on the record. Much work can be done with the judge, with the defense attorney, and with the prosecutor in chambers to get

Assembly Committee on Judiciary April 3, 2017 Page 45 some sense of where agreement and disagreement is, and any time there is an objection to an instruction or a request for an instruction that is not given, all of that is done on the record in open court. There is no reason to change the current practice in our state. Chairman Yeager: I am not 100 percent sure, but I think that was a no, you would not be in favor of any of the language in the jury instruction proposal? Christopher Lalli: That is correct. I am not in favor of any of the language. Chairman Yeager: Thank you. We will move on to others in opposition. I believe I gave Mr. Lalli about 25 to 30 minutes, and I apologize in advance, but we are not going to be able to get through everyone. I am asking you to please limit your comments to approximately three minutes. That will help us get through the testimony and then have some questions from the Committee. Christopher J. Hicks, District Attorney, Washoe County District Attorney's Office; and

representing Nevada District Attorneys Association: I am the Washoe County District Attorney and also the president of the Nevada District Attorneys Association. As such, I am here to speak on behalf of the 16 elected district attorneys who are not present today. I also want to draw your attention to one of my chief deputies, Luke Prengaman. He runs my Major Violators Unit. He is an absolute authority on discovery law and our criminal process, and I encourage you to ask him any questions you may have about this bill and about existing law, which this bill will expand immensely. I am also in the unique position in that I serve on the Commission on Statewide Rules of Criminal Procedure. That is a statewide commission with district attorneys, public defenders, judges, and is chaired by Supreme Court Justice Michael Douglas, and also Chief Judge Michael Cherry. One of the subcommittees in that particular group is discovery, and it is actually chaired by the public defender of Clark County, Phil Kohn. I can tell you that throughout this entire process—we have been on this committee for over a year—there has not been one recommendation made to the committee or to the Nevada Supreme Court about any changes that can be made in discovery. It is weird to me to now see the Clark County Public Defender's Office submitting all this information to you, when it has never even been suggested. Chairman Yeager: I will note for the record that these two bills were sponsored by Assemblyman Ohrenschall and Assemblywoman Neal, so I do not think it is accurate to say that language was submitted by the public defender's office. I disagree. I do not think there is any reason the Legislature should not consider enacting policy because there is a rules commission or other

Assembly Committee on Judiciary April 3, 2017 Page 46 commissions going on. I just want to make that clear for the record that what we are trying to do is figure out if this is good policy or if it is not—which is why we are having this hearing—and if it makes sense going forward. Christopher Hicks: I was not suggesting that it was being pushed forward by the public defender's office. If I misspoke, I apologize. The one other thing I would point out is that throughout that entire process, it has never been suggested that there are any problems in Washoe County with the discovery process. That has been stated many times on the record in that committee. When we get discovery, we give it to the public defender's office. It is that simple. I understand my time is short. I wish I could give you more information, but I will give you the best bullet points I can (Exhibit N). The best way I would characterize this proposed legislation is that it is an extreme remedy seeking a problem. It is a dramatic change to our current system. It is, frankly, a game-changer to the way the prosecution and defense work in the criminal justice system. It is just not needed. The first thing I would like to quickly point out regards the financial impact. I understand the fiscal notes are not being considered here, but it is a dramatic impact on the district attorney's office and I cannot imagine what it would do to the rurals in our state if they were now required to do this level of investigation to supply this extra information to the defense. Beyond the monetary factors, what is even more important is this bill's devastating consequences for community safety, victims, witnesses, and the criminal justice system. To understand why, it is first important to recognize that Nevada's current discovery statutes and case law are based upon United States Supreme Court precedent. Prosecutors are required to turn over information that is exculpatory. We have heard that several times today, meaning favorable to defense, and material. Material is the issue here. To be material, evidence must, in the eyes of a neutral and objective observer, make a difference in the outcome of the proceedings. This materiality requirement is key. It is what is missing from both of these bills. Both alter the standard of what type of information evidence must be sought and disclosed, expanding the prosecution's obligation to impossible limits. These bills discard materiality and meaning in favor of sheer volume. The bill would require the state to provide any information that might "adversely impact a witness's credibility." It also requires the state to find "any and all material" that might mitigate the defendant's punishment. It assumes that the state is deemed to possess any information in the hands of any law enforcement agency—state, federal, or international—regardless of materiality, and must provide it or suffer sanctions like dismissal or adverse inference. Chairman Yeager: I am going to have to ask you to wrap up your testimony. Christopher Hicks: Thank you.

Assembly Committee on Judiciary April 3, 2017 Page 47 Marc M. Schifalacqua, Senior Assistant City Attorney, City Attorney's Office, City of

Henderson: My office is responsible for prosecuting all misdemeanor offenses in the city limits of Henderson. I am the head of our criminal division. Very briefly, I wanted to thank Assemblyman Ohrenschall, who met with Henderson staff member David Cherry last week, and I expressed some of my concerns with the bill. He was very gracious to us, and I wanted to say that. Also, Assemblywomen Neal allowed us to put some things in writing about our issues. I heard some testimony from the public defenders a little earlier, and I was a little taken aback when they said this does not apply to misdemeanor prosecution; it just applies to district courts. That shocked me a little bit because that is not in the bill. If that is the intent of the bill, I would certainly be willing to offer any type of an amendment to it, but as of now it does not say that. In section 3 of both bills, it says, "For the purposes of this section, NRS 174.234 to 295, inclusive." There are misdemeanor disclosure requirements that are in those statutes, so when it says "inclusive," I certainly read it as applying to municipal courts. To me, that is not the case. Most of my objections I could withdraw, but as of now, these would apply to misdemeanor prosecutions of crime. If it is just for felonies, I understand, but as of now that is not how it reads, although the testimony indicated it was more for jury trial types of crime. I would echo the constructive possession of all information, all evidence, by all law enforcement agencies. If we are going to codify some things in the law, I would ask that it certainly follow our Supreme Court precedent of Kyles, which talks about the investigating agency on the case. It is very narrow in that regard. To date, the city attorney's office in Henderson filed 330 domestic violence cases just from January 1. I believe this would put an undue burden on us of really investigating and trying to discredit people from all across the country of a victim of crime. Someone subject to abuse I do not think should go through that. Certainly, if there is an inconsistent statement on a case, we would always turn it over. Also noticing section 9 of A.B. 376, the bad faith—it is also in section 6 of A.B. 356—it does not just codify Sanborn or Daniels. I read both last night. It allows the court to perhaps dismiss, but it does not mandate it. This would change existing case law. I know there was a lot of testimony about no additional burden and not adding anything; just codification. I do take issue with that in both the law enforcement agencies all across the country and also in this section. My last point is on the 72-hours—in Henderson municipal court, we always file within 72 hours. I think there needs to be some breathing room for an exception. We had a computer outage one day and we had to move things over a day. Also, when I was a prosecutor in the district attorney's office, sometimes you need an extra day if another victim comes forward. They are rare—almost all cases are filed within 72 hours—but I would ask for a little leeway there.

Assembly Committee on Judiciary April 3, 2017 Page 48 Chairman Yeager: I think the presenters had indicated that they did not intend the bill to apply to municipal court and justice court, so I think that can be made clear if the bill goes forward. Thank you for your comments on section 1 about the 72 hours. Hopefully, you will have a chance to reach out and I think something could probably be worked out there as well. It sounds like Henderson, for the most part, is complying with that requirement anyway. Charlotte M. Bible, Assistant General Counsel, Las Vegas Metropolitan Police

Department: I would like to concur in the comments made by Assistant District Attorney Christopher Lalli to the extent they apply to law enforcement and the extra burden that would be placed on law enforcement. Additionally, I want to talk about a couple of things he did not talk about—constructive possession in section 3 of both bills. This is a very concerning concept and language, making all of our law enforcement records in the constructive possession of the prosecutor. That would seemingly mean all of our personnel files, our open investigations, our purchasing documents, any and all documents created by our organization. We are a separate legal entity, and I think this language makes that concept much too broad to the extent that it could even be read to indicate that a public records request could be made to the prosecutor's office. That is totally unacceptable to us. Regarding the bad faith section—it seems the sanctions imposed by the statute are not necessarily proportional to the violation that may be alleged. That takes me to sections 10 and 11 of A.B. 376, which concern subpoena power. The subpoena power is expanded by these sections; one is to add additional hearings or proceedings for which subpoenas could be used to command witnesses to attend court. Not all hearings are intended to take testimony of a witness, and that would not be an appropriate use of a witness subpoena. I think if the language is to be amended, it should say a hearing or trial at which witnesses will be sworn to testify. Witness subpoenas in criminal cases require fees to be paid to witnesses but not until testimony is taken of the witnesses. That is something else to consider in the expansion and cost to comply with those subpoenas. I do not think it is necessary to be changed. Section 11 concerns NRS 174.335 and the subpoena power to require the production of documents. Subsection 3 is being removed, which provides that a party who wishes to obtain records prior to trial from a third party must obtain the authorization of a court to issue the subpoena. That language is just like the language under the federal rules of criminal procedure, and that has been the law for many years. Subpoena power is a very powerful tool and associated with it is contempt. The provision that requires authorization from the court is to ensure that the discovery—whether you call it discovery or documents that a party is seeking—is relevant and material to the case as is set forth in the Nevada Supreme Court cases regarding discovery so there is some control over the use of that powerful tool. If this language were to be approved without amendment, consider the cost on law enforcement—particularly the Las Vegas Metropolitan Police Department (Metro), as we are the largest law enforcement agency in the state. We provide our documents to the prosecutor to meet their obligation in the prosecution of the cases we submit to them. Giving duplicate requests for documents and information that should come from the prosecutor is very

Assembly Committee on Judiciary April 3, 2017 Page 49 burdensome to law enforcement. I would like that to be considered when the Committee considers this language and possibly some amendments to it, including not eliminating that language in the section. Chairman Yeager: If the Las Vegas Metropolitan Police Department is issued a subpoena that Metro objects to, there is a procedure in the law where you could move to quash that subpoena on the basis that it is not pertinent to the case or it seeks documents not allowed to be disclosed. Is that correct? Charlotte Bible: Yes. When it is a trial subpoena that requires the production of documents, then our recourse is to file a motion to quash or ask for a protective order from the court. Jeff Segal, Bureau Chief, Criminal Justice, Office of the Attorney General: I am responsible for overseeing all of the Attorney General's office criminal prosecutions throughout the state. I know we are short for time, so I want to associate myself with Mr. Lalli's comments. I hate to admit it, but I could not possibly say it as well as he did. I want to join with his comments and the comments of my other colleagues in opposition to this legislation. As I sat here today and listened to the proponents of the legislation from the public defender's office, those in favor, I was not reassured by their assurances that this legislation is just an effort to streamline the criminal justice process and if it is really imposing any additional burdens on prosecutors that we do not already have under Brady. There are two reasons why I was not reassured. First, I have actually read the proposed legislation, and there is a significant difference between what the bill says and the comforting assurances that have been provided today. Second, I have some understanding of what really goes on in the criminal courts, and this legislation would be devastating for all criminal cases, but especially problematic for the cases that I am most concerned about, which is the complex white-collar fraud cases that my office prosecutes. All of the problems that would exist with respect to all other criminal cases, the routine criminal cases, would be magnified dramatically in complex white-collar cases. These are cases with very complex fact patterns. The universe of potential facts is open-ended and potentially limitless, and these cases involve actions and actors in multiple jurisdictions throughout the country and even sometimes outside the country. To impose the kind of burdens that this legislation would place on requiring prosecutors to affirmatively seek out potentially exculpatory evidence would turn prosecutors into investigators, would require us to do the job that is the defense attorney's job, which is to investigate the case on behalf of the defendant and bring forth exculpatory evidence. The notion that prosecutors are now going to be deemed to be in actual constructive possession of information, in the possession of any law enforcement agency throughout the country or even throughout the world . . . . Chairman Yeager: I think that that particular point was addressed by the presenters of the bill and noting they would be willing to limit it to the law enforcement working on this investigation.

Assembly Committee on Judiciary April 3, 2017 Page 50 Jeff Segal: My major concern would be that there would be a substantial shift in the burden from the defense to the prosecutor in these cases. What I imagine is that we will be getting phone calls from defense attorneys saying, Look, my client, who is charged with operating a Ponzi scheme throughout the country, knows of a guy somewhere—we think he is in Alaska—who has some exculpatory evidence in this case. You, the prosecutor, need to go find him and interview him and collect that evidence. If we do not do that, we are going to get a motion for sanctions. And when we do find that guy, we are going to get another call from the same defense attorney saying, You know what, he is now telling me that there is another guy somewhere in the Midwest who has some additional information on one of your victims that would bear on his credibility. You need to go find that and disclose that to us. This would be just one wild goose chase after another in seeking exculpatory evidence that in those cases does not exist. That is the burden of the defense attorney in these cases to go out and interview witnesses and gather information that they claim is exculpatory. That is what this is really about. It is an effort to shift that burden to the prosecutor and when the prosecutor cannot meet this unreasonable burden to go into court and say, Well, now we are entitled to sanctions including potential dismissal of cases. Chairman Yeager: Is there anyone else who wants to testify in opposition to the bill that has not had a chance to yet? Luke Prengaman, Chief Deputy District Attorney, Washoe County District Attorney's

Office: I want to give you an example of how broad the sanction provision of this bill is. I will talk about A.B. 356, but both have similar provisions and both work exactly the same. If you look at section 3, it substantially changes from books, papers, documents, tangible objects that the state would introduce at trial into everything that is involved in the defendant's prosecution. The other bill uses the words, "everything related to the prosecution." That is everything. It was represented here that the defense would not have access to the entirety of the state file or police file, but that is exactly what that says. That is every fax coversheet, every email the police email to each other related to or involved in the case. It is one thing to say it is not the intent of the bill, but that is the exact language that judges will be applying. That is the plain letter of the language—anything related to or involved in. In addition to the exculpatory or mitigating evidence regardless of admissibility, there is no provision for admissibility, and that is what you lose by stripping away materiality. You lose that value to the case, so it basically requires everything that could fall under that rubric regardless of its admissibility even to the case. Take an undocumented witness who witnesses a DUI and reports it, who has parking tickets four years ago in Michigan. Now under the language of this bill, parking tickets could tend to affect credibility because they were unpaid, and that could have some bearing, even though they are not admissible, as well as the undocumented status. The prosecutor would be required to contact the

Assembly Committee on Judiciary April 3, 2017 Page 51 immigration services, find out anything that is going on with that, even though the fact of the undocumented status is not admissible in court. This bill would require the prosecutor to reach out and try to obtain, thereby calling attention to the status of that individual. Section 6, subsection 3 has the revisions for the penalty and the plain language of it says, "If at any time during the course of the proceedings it is brought to the attention of the court that the State has, in bad faith, destroyed, lost or failed to collect materials subject to the provisions of NRS 174.234 to 174.295 . . . ." That is not just exculpatory mitigating evidence. That is everything. That is all the books, papers, documents in the police file and the prosecutor's file, exculpatory or not: the fax coversheets, the emails by the police officers to each other about logistics that have no exculpatory value whatsoever. If any of those are lost in bad faith, the case is to be dismissed. But what happens if it is not in bad faith? If it is not in bad faith, even if it is an accident or an honest mistake, contrary to what was represented earlier, this says, "If the court finds the destruction, loss or failure to collect was not in bad faith . . . ." So again, it could be anything else but bad faith: honest, good faith mistake, accident—but it says "the court shall instruct the jury that it must infer the destroyed, lost or uncollected evidence would have been favorable to the defendant." So take that fax coversheet or take some innocuous document that the police lost in the course of the investigation. This says that even though it is not exculpatory, even though it has no value, this provision is unconcerned with value to the defendant or exculpatory value. This says, as a devastating result of that loss of an innocuous document, the court shall tell the jury that it must infer it was favorable to the police. It was argued that that was not the intent, but again, the letter the courts will be applying in these cases is plain and right there. Everything, regardless of good faith or bad faith, is subject to a devastating penalty. Assemblyman Elliot T. Anderson: I just want to make the comment generally that I had a hard time following the opposition. I would appreciate a section-by-section breakdown of the problems with the bill and also the codification questions that I addressed to the public defenders as well. I would like to know what is codified and what is not, because there is obviously a big dispute about it. To the extent that section-by-section breakdowns can be created that address practical problems and the issues of law, I would be grateful for that, as I am having trouble putting it all together. Assemblywoman Cohen: Is there anything in either of the bills or the amendments that you will agree to? Christopher Lalli: The information contained in the bill that is agreeable is material that is already well-stated in Nevada law. Quite frankly, I find this bill to be a solution without a problem. Chairman Yeager: That was a no? Christopher Lalli: That is a no.

Assembly Committee on Judiciary April 3, 2017 Page 52 Christopher Hicks: I would echo the same thing: No, on behalf of the Nevada District Attorneys Association. Jeff Segal: On behalf of the Office of the Attorney General, our answer would be no as well. Assemblywoman Cohen: What happened to the district attorney in the Steese case? Were there any ramifications for that district attorney in the case? Christopher Lalli: Ramifications for what? Assemblywoman Cohen: For withholding the evidence that we heard about earlier. Christopher Lalli: The presentation you heard this morning was absolutely inaccurate. I was very involved in the Steese case. There was no exculpatory evidence that was withheld, and Mr. Steese is not actually innocent of that crime. As I indicated before, he entered a plea of guilty to second-degree murder in that case and he currently stands convicted of that charge. Chairman Yeager: I will invite anyone who wants to submit additional information on that topic to the Committee to do so. It sounds like there is a dispute about what the case was about and how it worked out. Assemblywoman Tolles: I would like to echo the request by Assemblyman Anderson in regard to the section-by-section breakdown. I think it would be helpful. I know you were not able to get through all of your testimony this morning, so I think it would be very beneficial to have it submitted and posted on NELIS in addition to the section-by-section breakdown if possible. Christopher Lalli: Thank you. Assemblyman Watkins: Would you be agreeable to a codification of the standard of Brady as you understand it? Christopher Lalli: I am not a legislator, so you will have to forgive me. I do not see a legislative interest in codifying well-established principles of law that already exist in our jurisprudence. I quite frankly do not think it is necessary. Moreover, the law is a living thing. Our courts expand and contract laws, they expand the rights given to defendants and when you codify that, it is set in stone and requires a very burdensome process to change it.

Assembly Committee on Judiciary April 3, 2017 Page 53 Assemblyman Watkins: Is that a no? Christopher Lalli: Yes, that is a no. Chairman Yeager: In the interest of time, we will not take any more questions, but I want to thank everyone for being here this morning and for your patience. I will invite Assemblyman Ohrenschall back up to the table and anyone else you want with you at the table. Assemblyman Ohrenschall: I would argue that this is not a solution searching for a problem. Our United States Supreme Court, our federal courts, and our Nevada Supreme Court have issued rulings in case law on the importance of exculpatory evidence. Unfortunately, I believe we do have a problem in Nevada. It has been represented to me of criminal jury trials in Clark County that have gone forward since the beginning of the year. There have been an astronomical number of Brady violations that have been found. In 2014, the Las Vegas Review-Journal reported on the case of Victor Villalta. You heard Mr. Lalli discuss that. Mr. Villalta had tried to prove his innocence for eight years, and he was accused of child molestation. After eight years, when a new set of prosecutors came on the case, police notes dating back to 2006 were turned over to the defense that showed the detectives doubted the veracity of the accusers and doubted their credibility. The case was dismissed and he was a free man, notwithstanding long periods of incarceration, losing jobs, illness, and the collateral consequences that happen to someone. Certainly, our prosecutors have a difficult job. They have an obligation and 99 percent of them do a fantastic job. When we hear about cases like Mr. Villalta, we hear about the information regarding Mr. Steese and the phone calls that he made from Idaho during the actual time of the killing—regardless of what kind of deal he took after 20 years incarcerated, there is a problem. Even if it happens in a small percentage of cases, if that were you or me or one of our relatives, we would want any exculpatory information turned over to them. A couple of points that I wanted to address concern section 1 and the difference between 48 hours forthwith versus 72 hours. As Mr. O'Brien pointed out, we are a notice-pleading state and 72 hours is plenty of time for the prosecutor to file the complaint. It does not mean they have to have their case all ready. The point that Mr. Lalli made about if this is fair for both sides, section 9, subsection 2 certainly provides that sanctions can be levied against the defense counsel if they are not diligent in their duties as well. Anna Clark: I want to address a few things that Mr. Lalli brought up during his presentation. He began by mentioning the large caseload and workload that the prosecutors carry to which we wholeheartedly agree, and I will say unequivocally and for the record that they deserve our

Assembly Committee on Judiciary April 3, 2017 Page 54 thanks and praise for it and certainly our respect. Nothing in this bill is designed to change their workloads or caseloads. Everything in this bill is designed to simply affirm their already existing obligations under Brady and discovery statutes. Mr. Lalli mentioned that he believed our requests were unreasonable and overbroad and created new discovery obligations. I would respectfully disagree with that and reaffirm that in fact there are no additional obligations or burdens placed on them. Mr. Lalli also made reference to a notion that the system would be unbalanced and that would work to the detriment of prosecutors and to victims. Again, I would have to disagree that in fact this bill would level the playing field and cure any imbalance. In some respects, Mr. Lalli is accurate in that it does create a slightly larger obligation on the part of the state. That is not a new obligation. The case law and our existing precedent put a larger obligation on prosecutors and I think Mr. Lalli pointed out the reason for that when he mentioned that prosecutors are a special type of person, a special type of lawyer, and they do have a tremendous amount of responsibility because of the nature of the work they do. That is an acknowledgement that they have extremely great obligations and this bill recognizes that. Mr. Lalli also mentioned the super-Brady standard. The only thing I am upset about is that we did not think of that word earlier because I think super-Brady is a great way of putting it. I disagree that it would force them to collect all exculpatory evidence when it requires that they "disclose" all exculpatory evidence. That is what we are looking for. It is a codification of the Kyles case, which I know we talked about in section 3. I want to reaffirm that we are willing to work with the opponents of this bill on that language to reach consensus on it. I know there were several members who testified in opposition to specifically the words "seek out and disclose." Our intention is not to make the prosecutors our investigators or have them do our investigatory work for us. Our intent is that this would apply to the information that is already in the police file and the prosecutor's file and that it be turned over to the defense. I do not want to belabor too much of the rest of the opposition. I think you asked very good questions of us. Just to reaffirm, the police and the prosecutors have an enormous amount of power and have the ability to deprive people of their life or their liberty as I know you have been in hearings already regarding the death penalty. The accused defendant has no such power. We are seeking to balance the system and to level the playing field, and I think that is in the interest of justice and fairness. Robert O'Brien: We do have a problem. The attachments to our letter in support (Exhibit I) list an ongoing series of Brady and discovery violations that are occurring in Clark County, both through news articles and, if the Committee is more interested in the Steese case, there is the order regarding the actual innocence from the Eighth Judicial District Court that is attached as well. We have an ongoing problem with disclosure and communication between law enforcement and prosecutors. I am not sure where the breakdown is. I am not within those offices or

Assembly Committee on Judiciary April 3, 2017 Page 55 departments, and I am not trying to write procedures for them to fix it. What I am asking for and what the bill is proposing are firm deadlines asking them to turn over exculpatory information at least 30 days before trial, so that someone does not face trial without knowing the information that is sitting in a law enforcement file showing that they did not commit the crime or that there is an alternative suspect or that there is some detail that suggests they are not the person who should be prosecuted. In addition, as Mr. Ohrenschall said, it is not as simple as we are already doing this, as many of the opponents have said. In 2017 in Clark County, in the past three months, there have been nine Brady and discovery violations in nine different cases. Those are only the cases tracked by the public defender's office. That 30-day deadline this Legislature created is not being adhered to. [(Exhibit O) was submitted but not discussed.] Chairman Yeager: We will close the hearing on A.B. 376 as well as A.B. 356. Is there anyone wishing to give public comment? [There was no one.] We will close public comment. Thank you again for your patience this morning. We have Corrections, Parole, and Probation Committee meeting tomorrow morning starting at 8 o'clock. This meeting is adjourned [at 12:01 p.m.].

RESPECTFULLY SUBMITTED:

Linda Whimple Committee Secretary

APPROVED BY: Assemblyman Steve Yeager, Chairman DATE:

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EXHIBITS

Exhibit A is the Agenda. Exhibit B is the Attendance Roster. Exhibit C is a letter dated March 30, 2017, in support of Assembly Bill 287, submitted by the Henderson Chamber of Commerce. Exhibit D is a proposed amendment to Assembly Bill 356, submitted by Assemblyman Steve Yeager, Assembly District No. 9. Exhibit E is a proposed amendment to Assembly Bill 376, submitted by Assemblyman Steve Yeager, Assembly District No. 9. Exhibit F is a letter dated March 31, 2017, in support of Assembly Bill 376, presented by Anna C. Clark, Public Defender, Clark County Public Defender's Office. Exhibit G is a packet of information provided by the Office of the Public Defender, Clark County, in support of Assembly Bill 376. It includes a document dated April 6, 2017, that purports to provide existing United States and Nevada Supreme Court authority codified in certain sections of Assembly Bill 376, along with copies of numerous judicial rulings on Nevada court cases:

1. Huebner v. State, 731 P.2d 1330 (1987). 2. Havens v. Keller, U.S. District Court for the District of Nevada, Case

No. CV-S-95-00680-PMP, Order filed September 7, 1995. 3. County of Riverside v. McLaughlin, 500 U.S. 44 (1991). 4. Sanders v. Sheriff, Washoe County, 451 P.2d 718 (1969). 5. Jiminez v. State, 918 P.2d 687 (1996). 6. Kyles v. Whitley, 514 U.S. 419 (1995). 7. Giglio v. U.S., 405 U.S. 150 (1972). 8. Lay v. State, 14 P.3d 1256 (2000). 9. Mazzan v. Warden, Ely State Prison, 993 P.2d 25 (2000). 10. Brady v. Maryland, 373 U.S. 83 (1963). 11. Strickler v. Greene, 527 U.S. 263 (1999). 12. State v. Bennett, 81 P.3d 1 (2003). 13. State v. Huebner, 275 P.3d 91 (2012). 14. Hill v. Sheriff of Clark County, 452 P.2d 918 (1969). 15. Bustos v. Sheriff, Clark County, 491 P.2d 1279 (1971). 16. Howard v. State, 600 P.2d 214 (1979). 17. Sanborn v. State, 812 P.2d 1979 (1991). 18. State v. Hall, 768 P.2d 349 (1989). 19. Steese v. State, 960 P.2d 321 (1998). 20. Crawford v. State, 121 P.3d 582 (2005).

Assembly Committee on Judiciary April 3, 2017 Page 57

21. Runion v. State, 13 P.3d 52 (2000). 22. Carter v. State, 121 P.3d 592 (2005). 23. Williams v. State, 665 P.2d 260 (1983). 24. Preciado v. State, 318 P.3d 176 (2014).

Exhibit H is a proposed amendment to Assembly Bill 376, presented by Robert E. O'Brien, Deputy Public Defender, Clark County Public Defender's Office. Exhibit I is a collection of news articles and court decisions submitted by John J. Piro, Deputy Public Defender, Clark County Public Defender's Office, in support of Assembly Bill 376. Exhibit J is a proposed amendment to Assembly Bill 376, submitted by Tonja Brown, Private Citizen, Carson City, Nevada. Exhibit K is a document titled "Fiscal Impact of AB 356," submitted by the Washoe County District Attorney's Office, regarding Assembly Bill 356. Exhibit L is a document titled "2017 Legislative Session: Fiscal Impact of AB 356," submitted by Clark County Office of the District Attorney, regarding Assembly Bill 356. Exhibit M is a document titled "Analysis: AB 356 and AB 376," submitted by the Nevada District Attorneys Association, regarding Assembly Bill 356 and Assembly Bill 376. Exhibit N is written testimony in opposition to Assembly Bill 356 and Assembly Bill 376 presented by Christopher J. Hicks, District Attorney, Washoe County District Attorney's Office. Exhibit O is a letter dated April 11, 2017, to Chairman Yeager and members of the Assembly Committee on Judiciary, in opposition to Assembly Bill 356 and Assembly Bill 376, authored by Brett Kandt, Chief Deputy Attorney General, Office of the Attorney General.