NRS 484.619 is identical in its meaning and intent to the applicable Anchorage Code, set forth in FN 1, above, and interpreted by the court in King.  The relevant and operative language of NRS 484.619 is nearly identical to Anchorage Municipal Code Sec. 9.36.040(D).  As such, the word “upon” in NRS 484.619 means ‘upon the windshield’ and not on the rearview mirror.  Any other interpretation, in light of King, would be inconsistent with the Ninth Circuit’s reasoning.    

Based on the foregoing reasoning, when a police officer makes a mistake of law regarding NRS 484.619, it precludes a finding of reasonable suspicion for said stop.  As explained in King, “a belief based on a mistaken understanding of the law cannot constitute a constitutional traffic stop.” King, 244 F.3d at 739, citing U.S. v. Twilley, 222 F.3d 1092, 1096 (9^th Cir. 2000).    Accordingly, in the case where an officer stops a vehicle under NRS 484.619 for a placard or similar item hanging from the rearview mirror, the stopping of Defendant constitutes an unlawful seizure in violation of the Fourth Amendment.
 

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A couple of things are clear after Higgs:
          1. Nevada only looks to Daubert and its factors for guidance, not strict adherence; and
          2. And I quote, “NRS 50.275 provides general guidance and allows the trial judge discretion in deciding what factors are to be considered on a case-by-case basis.”

 In Higgs, the court explained,

[I]n Hallmark, we stated that Daubert and federal court decisions discussing it “may provide persuasive authority.” Hallmark, 124 Nev. at ___, 189 P.3d at 650. We did not, however, and do not today, adopt the Daubert standard as a limitation on the factors that a trial judge in Nevada may consider. We expressly reject the notion that our decision in Hallmark inferentially adopted Daubert or signaled an intent by this court to do so.

A close reading of Hallmark is helpful. This court concluded that the district court abused its discretion in allowing the expert testimony of a biochemical engineer. 124 Nev. at ___, 189 P.3d at 652. In so doing, we summarized Nevada’s jurisprudence regarding expert witness testimony pursuant to NRS 50.275. 124 Nev. at ___, 189 P.3d at 650-52. We identified the three overarching requirements for admissibility of expert witness testimony pursuant to NRS 50.275 as (1) qualification, (2) assistance, and (3) limited scope requirements. 124 Nev. at ___, 189 P.3d at 650. This court then identified factors to be considered under each requirement. 124 Nev. at ___, 189 P.3d at 650-52. We were careful to note that the list of factors was not exhaustive, and we recognized that every factor may not be applicable in every case and would likely be accorded varying weight from case to case. Id. at ___, 189 P.3d at 651-52. It is worth noting that we supported our conclusion by citing to Nevada cases, not federal.

Consider the differences between NRS 50.275 and FRE 702.  NRS 50.275 states:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge, skill, experience, training or education may testify to matters within the scope of such knowledge.

FRE 702 contains similar language, but with additional conditions, which were added in response to the Daubert trilogy (Daubert, Joiner, and Kumho):

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Whereas the federal rule mandates three additional conditions that trial judges should consider in evaluating expert witness testimony, the Nevada statute mandates no such requirements.  Rather, NRS 50.275 provides general guidance and allows the trial judge discretion in deciding what factors are to be considered on a case-by-case basis.  In Hallmark, we outlined some factors that are useful in this inquiry, but repeatedly noted that the factors enumerated “may not be equally applicable in every case.”  124 Nev. at ___, 189 P.3d at 651, 652.  We determine that the benefit of our approach is twofold: first, it gives judges wide discretion to perform their gatekeeping duties; and, second, it creates an inquiry that is based more in legal, rather than scientific, principles.

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Normally, an attorney is queued to a potential impeachment upon hearing a witness testify on direct examination when their testimony contradicts, or is contradicted by, a prior statement made by that witness.

The formula for the impeachment is really a quick two step process.
1) ask the witness to verify the statement they just made on direct; and
2) present their prior testimony, and ask them if in fact that’s what it says.

As an example, here’s what an impeachment looks like:

Q: Mrs. Johnson, you just testified that you looked at the gunman for 10-15 seconds, is that correct?
A: That’s correct.

Q: Do you recall previously testifying in court on June 16, 2008 at the preliminary hearing?
A: Yes.

Q: Turning court and opposing counsel’s attention to page 5, lines 16-22 of the preliminary transcript. Mrs. Johnson, I’d like you to take a moment and read this section of your testimony to yourself. (Give the witness a few moments to read). Do you recall being asked the question: “Did you have an opportunity to see the gunman?” and you’re answer being, “Only for a second or two, because I ran and hid behind the beer cooler.”

A: Yes.

Q: In fact, you only saw the gunman for a second or two, and not 10 or 15 seconds, correct.
A: Yes.

——————-
A few things to keep in mind. Not all impeachments are this straightforward. A witness may very well see the blow to their credibility coming and try to manipulate the situation by arguing that their testimony was not recorded accurately. In some situations this can be countered, particularly in a civil matter, the witness can be further questioned about the fact that they were given an opportunity by the court reporter to review the transcript before it was transcribed, and further, that they failed to indicate any errors.

Perhaps the most important aspect to keep in mind in deciding whether or not to impeach, is determing what is a collateral fact or determining whether a non-collateral fact is only minimally relevant. Impeachments, if possible, should be reserved for the most relevant facts so as to maintain the powerful effect on the judge or jury.

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Further limiting the admissibility of character evidence is the Collateral Fact rule codified by NRS 50.085(3). Under this rule it is improper to allow the State to impeach a defendant’s credibility with extrinsic evidence relating to a collateral matter. Collateral facts are facts that are outside the controversy, or are not directly connected with the principal matter or issue in dispute.

In Jezdik v. State, 110 P.3d 1058 (2005), a case involving allegations of fraudulent use of a credit card and identity theft, the Nevada Supreme Court adopted the “specific contradiction” exception to the collateral fact rule of NRS 50.085(3). The exception holds that a defendant’s false statements during direct examination open the door to the admissibility of remedial specific contradiction evidence. At trial, Defendant took the stand and testified. His attorney asked, “Have you ever been accused of anything prior to these current charges?” to which Jezdik answered, “No.” As a result, the court allowed the state, in its rebuttal, to introduce testimony from two witnesses: A detective who testified that Jezdik was the subject of an ongoing unrelated investigation, and Jezdik’s father-in-law who testified that Jezdik had once admitted to using his personal information to open a credit card.

In affirming the trial court’s decision to admit the testimony of the state’s two witnesses on rebuttal, it distinguished Jezdik’s situation from one in which a defendant elects to introduce character evidence in the form of either reputation or opinion evidence. In the latter, the State is correspondingly limited in its rebuttal evidence and may only ask about specific acts on cross examination. The court determined that is not what happened in Jezdik’s case, but rather, that Jezdik’s testimony was essentially a denial of any prior specific instances of bad acts. Hence, Jezdik opened the door to the admissibility, by the state, of prior bad acts (uncharged or not) committed by Jezdik.

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When a court orders a record sealed, “[a]ll proceedings recounted in the record are deemed never to have occurred.” NRS 179.285.  This fiction permits the subject of the sealed proceedings to properly deny his or her arrest, conviction, dismissal, or acquittal in connection with the proceedings.  In this way, sealing orders are intended to permit individuals previously involved with the criminal justice system to pursue law-abiding citizenship unencumbered by records of past transgressions.  It is clear, however, that such authorized disavowals cannot erase history.  Nor can the force persons who are aware of an individual’s criminal record to disregard independent facts known to them.

Accordingly, NRS 179.285 does not require the district court to disregard the memory of a defendant’s accusers.

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Where there is no bad faith, the defendant has the burden of showing prejudice. Buchanan v. State, 119 Nev. 201, 220 (Nev. 2003). The defendant must show that “‘it could be reasonably anticipated that the evidence sought would be exculpatory and material to [the] defense.’” Id., see also Cook v. State, 114 Nev. 120, 125 (Nev. 1998). Further, the “materiality and potentially exculpatory character of lost or destroyed evidence must be determined on an ad hoc basis on the facts of each particular case”. Deere v. State, 100 Nev. 565, 566-67 (Nev. 1984).

In Cook, defendant was charged with three counts of sexual assault for the alleged rape of his former domestic partner. Cook, 114 Nev. 120. At the conclusion of his fourth trial, a jury found Cook guilty of one count of sexual assault. Cook, 114 Nev. 120. Following the investigation, the police subsequently lost the photos, reports, and sweater. Cook, 114 Nev. at 124-25.

Cook alleged that lost photographs of blood on the carpet would have proven that he did not violently attack the victim and drag her several feet across the carpeted floor; that the lost photos of the bruise on his arm deprived him of the opportunity to rebut or impeach the victim’s testimony that the bruise on his arm was caused by her act of slamming a door on his arm during her purported escape attempt; that his lost initial statement to police, given by Cook before he was aware of any of the victim’s specific allegations, could have been used to corroborate Cook’s trial testimony; the victim’s lost initial statement to the police: Cook argues that the victim’s initial statement may have been inconsistent with portions of her trial testimony as evidenced by the fact that her initial statement led police to charge Cook with only one count of fellatio, and not two; and Cook argues that the sweater was both material and exculpatory evidence because it would have supported his testimony because no blood was on it and it would have demonstrated she was not wearing the sweater when she says she was, when her nose got bloody. Cook, 114 Nev. 124-25.

The court ruled that Cook has made the requisite showing of prejudice by demonstrating that the lost items of evidentiary value could have been reasonably anticipated to be both material and exculpatory. Cook, 114 Nev. at 126. Due to the State’s negligent loss of evidence, Cook’s ability to defend himself was severely undermined. Cook, 114 Nev. at 126. Accordingly, the State’s failure to preserve such evidence violated Cook’s right of due process and mandates reversal of his conviction and sentence. Cook, 114 Nev. at 126.

In footnote number 6, the Cook Court noted, “[w]e do not suggest the Sparks Police Department had a duty to collect evidence. Rather, we base our holding that Cook’s defense was unduly prejudiced solely on the evidence that was gathered and then subsequently lost by the Sparks Police Department.” Cook, 114 Nev. at 126. The court then concluded that Cook has established prejudice by showing that the lost items of evidentiary value could have been reasonably anticipated to be both exculpatory and material. Cook, 114 Nev. at 127.

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The Fifth Amendment also gives rise to the act of production privilege; that is, an extension of the privilege to documents that one may be forced to produce. Fisher v. United States, 425 U.S. 391 (1976). Further expanding this protection, in United States v. Hubbell, 530 U.S. 27, 120 S.Ct. 2037 (2000), the Supreme Court of the United States affirmed that the privilege of asserting the Fifth Amendment may also extend to the compelled production of documents, reasoning that the act of producing subpoenaed documents may have a compelled testimonial aspect. Id. at 36, 120 S.Ct. at 2043. “In producing documents in compliance with a summons, the individual “admits that the documents exist, are in his possession or control, and are authentic.” In re Grand Jury Subpoena, 383 F.3d 905, 909 (9th Cir. 2004) (citing Hubbell, 530 U.S. at 36). “These types of admissions implicitly communicate statements of fact that may lead to incriminating evidence.” Id.

A limitation of the of this privilege is that when the existence and location of the summonsed documents are a “foregone conclusion” and “the witness adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the documents, then no Fifth Amendment right is touched because the question is not of testimony but surrender.” Id. at 910 (citing Fisher v. United States, 425 U.S. at 411). To this issue, the Hubbell court started by ruling that because it was not a “foregone conclusion” that the records responsive to a broad subpoena existed or were in Hubbell’s possession, he had validly asserted his Fifth Amendment privilege under the act-of-production doctrine, which had triggered a grant of act-of-production immunity. Hubbell, 530 U.S. 27, 45, 120 S.Ct. 2037.

The (Hubbell) court concluded from the subpoena itself that the prosecutor needed Hubbell’s help to identify potential sources of information and to produce those sources. Id. at 41. According to the court, given the breadth of the description of the documents demanded by the subpoena, the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions. Id. at 41-42. The court noted that the assembly of hundreds of pages of material to respond to the single demand regarding sources of money was the functional equivalent of preparing an answer to a detailed written interrogatory or a series of oral questions at a discovery deposition. Id. The court found it undeniable that entirely apart from the contents of the materials that Hubbell produced, providing a catalog of existing documents fitting within any of the broadly worded subpoena categories could provide a prosecutor with a “lead to incriminating evidence,” or “a link in the chain of evidence needed to prosecute.” Id. at 42.

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The Ninth Circuit has held that a defendant can argue both that he did not commit the unlawful acts charged against him and that, if he did, he was entrapped. See United States v. Demma, 523 F.2d 981 (1975) (en banc).

Under federal law, the defendant has an initial burden to prove government inducement, but the government has the ultimate burden to prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by government agents. United States v. Charles, 2009 WL 2871606 (C.A. 9th 2009), citing Jacobson v. United States, 503 U.S. 540, 549, 112 S.Ct. 1535 (1992), and United States v. Ross, 372 F.3d 1097, 1108 (9th Cir. 2004). Defendant must point to undisputed evidence making it patently clear that an otherwise innocent person was induced to commit the illegal act by trickery, persuasion, or fraud of a government agent. United States v. Mendoza-Prado, 314 F.3d 1099, 1102 (9th Cir. 2002).

In Thomas, Defendant was convicted of conspiracy to possess methamphetamine with intent to distribute and aiding and abetting possession of methamphetamine with intent to distribute. United States v. Thomas, 134 F.3d 975 (9th Cir. 1998). On appeal, it was held that the District Court erred when it failed to permit the defendant to testify that he had no prior arrest or conviction record and certainly no record of any past criminal behavior that in any way suggested that he might be predisposed to engage in large-scale drug trafficking. United States v. Thomas, 134 F.3d 975, 979 (9th Cir. 1998).

Five factors are relevant in determining whether a defendant was predisposed to commit a crime: (1) the character or reputation of the defendant; (2) whether the government made the initial suggestion of criminal activity; (3) whether the defendant engaged in the activity for profit; (4) whether the defendant showed any reluctance; and (5) the nature of the government’s inducement. United States v. Thomas, 134 F.3d 975, 978 (9th Cir. 1998).

Evidence of prior good acts is admissible under Rule 404(b) to prove the defendant’s intent or state of mind as long as it bears meaningfully on the defendant’s lack of a criminal disposition at the time of the government’s inducement. United States v. Thomas, 134 F.3d 975, 979 (9th Cir. 1998). Further, the Thomas court held, even if the proffered evidence were not admissible under Rule 404(b), it would be admissible under 405(b), because, to meet its burden of proof in the face of an entrapment defense, the government must prove predisposition beyond a reasonable doubt. United States v. Thomas, 134 F.3d 975, 980 (9th Cir. 1998), citing Jacobson v. United States, 503 U.S. 540, 548-49, 112 S.Ct. 1535, 1540-41 (1992). For the jury to find predisposition beyond a reasonable doubt, it must consider the defendant’s character. United States v. Thomas, 134 F.3d 975, 980 (9th Cir. 1998).

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http://www.occ.treas.gov/ftp/ADVISORY/2009-1.html

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If a person is qualified to testify as an expert under NRS 50.275, the court must determine whether his or her expected testimony will assist the trier of fact in understanding the evidence or determining a fact in issue. Hallmark at 651. “An expert’s testimony will assist the trier of fact only when it is relevant and the product of reliable methodology.” Id.

In determining whether an expert’s opinion is based upon reliable methodology, a district court should consider whether the opinion is (1) within a recognized field of expertise; (2) testable and has been tested; (3) published and subjected to peer review; (4) generally accepted in the scientific community (not always determinative); and (5) based more on particularized facts rather than assumption, conjecture, or generalization. Id. at 651-52.

If the expert formed his or her opinion based upon the results of a technique, experiment, or calculation, then a district court should also consider whether (1) the technique, experiment, or calculation was controlled by known standards; (2) the testing conditions were similar to the conditions at the time of the incident; (3) the technique, experiment, or calculation had a known error rate; and (4) it was developed by the proffered expert for purposes of the present dispute. We again note that these factors are not exhaustive, may be accorded varying weights, and may not apply equally in every case. Id. at 652.

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