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?