Clark County District Attorney Steve Wolfson says he isn’t concerned that a few Las Vegas justices of the peace wrote letters to the Legislature opposing Assembly Bill 193, which would allow hearsay evidence at preliminary hearings or before a grand jury in certain cases.
Wolfson recently told the Nevada Senate Judiciary Committee that he had spoken with judges who favor the proposed law.
“In Las Vegas alone, we have 14 justices of the peace,” Wolfson said. “So if you had received 14 letters, or 10 or 12 letters from the JPs that do only criminal cases, I’d think: ‘Wow, maybe we have something here.’ ”
In Nevada criminal courts, justices of the peace decide at preliminary hearings whether prosecutors have enough evidence to take cases to a jury. Prosecutors also can present a case to a grand jury for indictment.
The proposed law would allow prosecutors to present hearsay testimony in court or to a grand jury in certain types of cases, meaning victims would not have to testify or be subject to cross examination.
But as the bill works its way through the Legislature, more and more judges are expressing concerns, and they could reach a collective opinion as early as today, when they hold a regular meeting to discuss court business.
Las Vegas justices of the peace Karen Bennett-Haron and Melanie Andres-Tobiasson wrote letters to the Senate Judiciary Committee.
“The proposed legislation undermines the judiciary’s obligation to enforce the Constitution,” Bennett-Haron wrote.
Andres-Tobiasson agreed, urging lawmakers to vote against the bill. Often, charges are amended at the preliminary hearing stage, the judge wrote.
“The cornerstone of our Constitution assures the rights of all, but I am afraid AB 193 does not make the rights equal to all,” she wrote.
An amendment to the bill earlier this month specified that hearsay only would be allowed in cases that involved sexual assault of children younger than 16, abuse of children younger than 16 or felony domestic violence that resulted in substantial bodily harm.
Wolfson has told lawmakers that a new law could save the state money, help battle crime and assist victims.
“We are not asking that the JP give up his or her role in determining the strength of the evidence, the weight of the evidence and whether or not it meets that burden of probable cause,” Wolfson said. “That judge still has the discretion to put whatever weight they want they want on this evidence and still dismiss cases if they don’t feel the state has met their burden.”
Victim advocates support the bill because it means witnesses and victims would spend less time in court recounting crimes against them.
Las Vegas justices of the peace Joe Sciscento and Janiece Marshall, who attended a video conference of a Senate hearing last week, said they had concerns with the bill.
“A lot of times at a preliminary hearing, that’s when victims get their power back,” Marshall said. “But it’s also true that it’s a very difficult process.”
Sciscento agrees with protecting victims in highly sensitive cases, but he said the proposed legislation should place more restrictions on how hearsay can be introduced.
“Who’s to say a DA can’t read the affidavit?” Sciscento said. “They need to take the time to get it done right.”
Las Vegas Justice of the Peace Conrad Hafen told the Review-Journal he also opposes allowing hearsay at preliminary hearings in part because it means lawyers cannot test the credibility of witnesses.
“That’s unfair and weakens the process,” Hafen said.
Earlier this month, more than 200 defense attorneys signed a letter that threatened political retaliation against elected officials who support the bill.
Hafen said that letter had no impact on his opinion about the legislation because he does not accept campaign contributions from lawyers.
In a letter to the Senate Judiciary Committee this week, defense lawyer Ozzie Fumo, a staunch opponent of the bill, named six other Las Vegas justices of the peace who voiced their opposition. Fumo said at least 11 judges told him they didn’t like the bill.
Still, the proposed changes appear to have a majority of support among legislators, and the bill is expected to go to the Senate floor within the next week and could reach Gov. Brian Sandoval’s desk a few days later.
Hearsay evidence is allowed in 36 states, and preliminary hearings are almost never used in the federal court system. But the proposed Nevada law does not call for any restrictions on how the hearsay is introduced, Fumo said.
“Every other state or jurisdiction that does it has extra safeguards,” Fumo said. “Nevada will be a laughing stock if this goes through.”
Contact reporter David Ferrara at email@example.com or 702-380-1039. Find him on Twitter: @randompoker