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Nevada Supreme Court Clarifies, Narrows Nonhearsay Rule Under NRS 51.135(2)

by Dale Chappell

An out-of-court statement is not hearsay only if the person making the statement is subject to cross-examination concerning the statement, the Nevada Supreme Court instructed, clarifying and narrowing the application of when nonhearsay statements are admissible at trial.

After Kirsten Kinard identified Dvontae Richard as the man who robbed him of his neck chain, Kinard had a hard time recalling that he told police Richard was the robber at trial. The State then called the detective Kinard made the identification to in order to corroborate Kinard’s earlier story, who testified as to Kinard’s previous description of the robber. The detective testified that Kinard told him the robber was a black man wearing a red hoodie. The problem with the detective’s testimony was that Kinard never said the robber was a black man. Nevertheless, the detective’s testimony was admitted, and the jury convicted Richard of the robbery. He appealed, and the Nevada Supreme Court agreed to hear the case.

On appeal, Richard argued that the detective’s testimony about what Kinard told him was inadmissible hearsay. The State, though, argued that because Kinard’s statements at trial identifying the robber were inconsistent, the detective’s testimony was properly admissible. The Nevada Supreme Court agreed with Richard.

An out-of-court statement is not hearsay under Nevada Revised Statute 51.035(2) if the declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is one identifying a person made soon after seeing that person. In Jones v. State, 591 P.2d 263 (Nev. 1979), the Nevada Supreme Court affirmed the admission of testimony where the declarant testified about a prior identification of a person and was subject to cross-examination concerning the statement. In other words, in order for a prior statement of identification to be admissible under NRS 51.035(2), the declarant must have been subject to cross-examination and must have been subject to cross-examination concerning the relevant statement made by the person.

Because the State did not ask Kinard about his prior identification of the robber to the detective, he was not “subject to cross-examination” about his statements, the Supreme Court explained. By admitting the detective’s testimony about Kinard’s hearsay statement identifying Richard as the robber, the district court abused its discretion, the Supreme Court concluded.

The Court clarified that NRS 51.035(2) requires cross-examination of the declarant “concerning the statement” for the testimony to be admissible as nonhearsay. Since that did not happen here, the Court agreed that the detective’s testimony as to Kinard’s description of his attacker was hearsay and should not have been admitted at trial.

However, because Richard admitted to grabbing Kinard’s neck chain, the Court found that the error, in light of the evidence, was harmless. Accordingly, the Nevada Supreme Court affirmed Richard’s conviction. See: Richard v. State, 424 P.3d 626 (Nev. 2018). 

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