Supreme Court Discusses Statutory Non-Hearsay

The goal of the discovery process is to gather evidence and
testimony that would be admissible at trial. 
If what you gather is inadmissible then you may be paddling really hard,
but your oars aren’t touching the water.

Richard v. State
was a criminal matter arising from an attempted robbery at a car wash that led
to “chaotic shooting.”[1]
  The
victim, Kinard, “was wearing a Cuban link gold necklace with an estimated value
of $45,000.”[2]  The robber, Richard, “approached Kinard and
grabbed Kinard’s necklace with enough force to pull him down by the neck.”  This led to a shoot-out.  Both were hit and transported to UMC for
treatment.  While there, “as Richard was being
wheeled by Kinard’s room, Kinard flagged down Detective Weirauch and identified
Richard as the man who tried to take his necklace.”

To the surprise of no one, “By the time of trial, Kinard
was in custody on unrelated charges and was an unwilling witness for the State.”

 [W]hen asked if he could identify Richard as the person who “snatched” his chain, he simply stated “No.” Kinard was never asked about his prior identification of Richard at the hospital and was never asked whether he had ever been able to identify Richard as the man who grabbed his chain.

However, the district court allowed “testimony by Detective
Weirauch regarding Kinard’s statements in the hospital describing and
identifying Richard as the man who grabbed his gold chain.”  The district court had admitted it as
non-hearsay per NRS 51.035(2)(a) because it was not hearsay if “[t]he declarant
testifies at the trial or hearing and is subject to cross-examination concerning
the statement, and the statement is: (a) Inconsistent with the declarant’s
testimony.”  During trial, “the State did
not ask Kinard about his prior statements to Detective Weirauch” on direct
examination.  This meant it was error to allow
Detective Weirauch to testify about Kinard’s prior descriptions at UMC. 

The State argues that Weirauch’s testimony that Kinard described
his attacker as “a black male adult wearing a [red] hoodie” was properly
admitted pursuant to NRS 51.035(2)(a) because Kinard testified, he was subject
to cross-examination, and his trial testimony was inconsistent with that
statement to Weirauch. However, Kinard was never asked about the race of the
man who grabbed his chain; he was only asked about the race of the second man,
the one who drew a gun.  Because Kinard
did not provide any testimony that was inconsistent with his prior description
of his attacker as a black male, we conclude that Weirauch’s testimony
regarding that racial description should not have been admitted pursuant to NRS
51.035(2)(a).

The statement about the color of the attacker’s hood
required a separate analysis.  “Kinard
testified that he did not remember telling Weirauch the color of the hood. When
presented with the transcript of his voluntary statement, he did not dispute
having said that.”  Under Nevada law, “Kinard’s
memory lapse was akin to a denial of his prior statement, and the State could
properly present his prior inconsistent statement.”

Richard also
addressed further applications of the statute to other evidence.  The point for discovery purposes is that creating
an exception, or exclusion, from a hearsay analysis requires planning in
certain scenarios and is a reminder to ask the right questions.


[1] 134
Nev. Adv. Op. 64 (2018).

[2]
Who doesn’t wear that type of bling
to the car wash?