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Nevada Supreme Court Overrules Itself, Finds Statute Violates Criminal Defendant’s Right to Confront Witnesses

On February 27, 2014, the Nevada Supreme Court issued its decision in City of Reno v. Howard, and explicitly overruled its 2005 decision relative to the constitutionality of a Nevada statute. That statute, NRS 50.315(6), provides that a criminal defendant may waive his right to confront a person who makes a declaration under the penalty of perjury who collects blood from the defendant for evidentiary purposes, unless the defendant can show “a substantial and bona fide dispute” as to the facts in the declaration.

In Howard, the defendant was charged with misdemeanor driving under the influence. At trial, the City of Reno sought to introduce into evidence the declaration of the phlebotomist who collected the defendant’s blood for evidentiary testing after the defendant’s arrest. The defendant’s attorney objected to the admission of the declaration, arguing that admitting the declaration without giving the defendant the opportunity to cross-examine the phlebotomist about the facts contained in the declaration violated the Sixth Amendment to the United States Constitution.

The Sixth Amendment provides that “the accused shall enjoy the right… to be confronted with the witnesses against him.” This clause is known as the Confrontation Clause, and, as the Nevada Supreme Court explained, it “prohibits the admission of testimonial hearsay against a criminal defendant unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the defendant.”

While a criminal defendant may waive his rights under the Confrontation Clause if he fails to make a timely procedural objection on confrontation grounds, the United States Supreme Court has made clear that the Sixth Amendment does not permit a statute to shift the burden of presenting witnesses in support of a criminal prosecution from the government to the accused.

The Nevada Supreme Court had previously ruled that NRS 50.315(6) adequately protected the confrontation rights of defendants. However, using a 2009 decision from the U.S. Supreme Court as guidance on Confrontation Clause issues, the Nevada Supreme Court has now overruled its previous decision, concluding:

…NRS 50.315(6) impermissibly burdens confrontation rights because, unlike a “simple” notice-and-demand statute that merely requires a defendant’s timely objection, NRS 50.315(6) requires a defendant to establish a substantial and bona fide dispute regarding the facts in the declaration in order to exercise his confrontation rights. A defendant who cannot make this showing will suffer a forced waiver of his confrontation rights despite a timely attempt to invoke them. Because such an additional burden is impermissible according to the U.S. Supreme Court’s decision in Melendez-Diaz, we conclude that NRS 50.315(6) violates the Confrontation Clause.

The Court also noted that “the relative simplicity of collecting blood and the foundational purpose for which the declaration was offered do not affect this conclusion,” illustrating the superior importance of the protection of a criminal defendant’s constitutional right to confront witnesses against him over potential procedural conveniences in admitting evidence.