[Rev. 11/21/2013 9:02:48 AM--2013]

TITLE 4 - WITNESSES AND EVIDENCE

CHAPTER 47 - GENERAL PROVISIONS; JUDICIAL NOTICE; PRESUMPTIONS

GENERAL PROVISIONS

NRS 47.020             Scope of title 4 of NRS.

NRS 47.030             Purposes of title 4 of NRS.

NRS 47.040             Rulings on evidence: Effect of error.

NRS 47.050             Rulings on evidence: Record of offer and ruling.

NRS 47.060             Preliminary questions of admissibility: Determination.

NRS 47.070             Preliminary questions of admissibility: Relevancy conditioned on fact.

NRS 47.080             Determinations of admissibility: Hearing of jury.

NRS 47.090             Preliminary hearings on confessions and evidence.

NRS 47.100             Weight and credibility.

NRS 47.110             Limited admissibility.

NRS 47.120             Remainder of writings or recorded statements.

JUDICIAL NOTICE

NRS 47.130             Matters of fact.

NRS 47.140             Matters of law.

NRS 47.150             Discretionary and mandatory notice.

NRS 47.160             Opportunity to be heard.

NRS 47.170             Time of taking notice.

PRESUMPTIONS

NRS 47.180             Presumptions generally: Effect; direct evidence.

NRS 47.190             Determination on evidence of basic facts.

NRS 47.200             Determination on evidence of presumed fact: Where basic facts established.

NRS 47.210             Determination on evidence of presumed fact: Where basic facts lacking.

NRS 47.220             Determination on evidence of presumed fact: Where basic facts doubtful.

NRS 47.230             Presumptions against accused in criminal actions.

NRS 47.240             Conclusive presumptions.

NRS 47.250             Disputable presumptions.

_________

 

GENERAL PROVISIONS

      NRS 47.020  Scope of title 4 of NRS.

      1.  This title governs proceedings in the courts of this State and before magistrates, except:

      (a) To the extent to which its provisions are relaxed by a statute or procedural rule applicable to the specific situation; and

      (b) As otherwise provided in subsection 3.

      2.  Except as otherwise provided in subsection 1, the provisions of chapter 49 of NRS with respect to privileges apply at all stages of all proceedings.

      3.  The other provisions of this title, except with respect to provisions concerning a person with a language barrier, do not apply to:

      (a) Issuance of warrants for arrest, criminal summonses and search warrants.

      (b) Proceedings with respect to release on bail.

      (c) Sentencing, granting or revoking probation.

      (d) Proceedings for extradition.

      4.  As used in this section, “person with a language barrier” has the meaning ascribed to it in NRS 1.510.

      (Added to NRS by 1971, 775; A 1997, 2286; 2013, 1460)

      NRS 47.030  Purposes of title 4 of NRS.  The purposes of this title are to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

      (Added to NRS by 1971, 775)

      NRS 47.040  Rulings on evidence: Effect of error.

      1.  Except as otherwise provided in subsection 2, error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and:

      (a) In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection.

      (b) In case the ruling is one excluding evidence, the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked.

      2.  This section does not preclude taking notice of plain errors affecting substantial rights although they were not brought to the attention of the judge.

      (Added to NRS by 1971, 775)

      NRS 47.050  Rulings on evidence: Record of offer and ruling.  The judge may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made and the ruling thereon. The judge may direct the making of an offer in question and answer form, and on request shall do so in actions tried without a jury, unless it clearly appears that the evidence is not admissible on any ground or is privileged.

      (Added to NRS by 1971, 776)

      NRS 47.060  Preliminary questions of admissibility: Determination.

      1.  Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege or the admissibility of evidence shall be determined by the judge, subject to the provisions of NRS 47.070.

      2.  In making a determination the judge is not bound by the provisions of this title except the provisions of chapter 49 of NRS with respect to privileges.

      (Added to NRS by 1971, 776)

      NRS 47.070  Preliminary questions of admissibility: Relevancy conditioned on fact.

      1.  When the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

      2.  If under all the evidence upon the issue the jury might reasonably find that the fulfillment of the condition is not established, the judge shall instruct the jury to consider the issue and to disregard the evidence unless they find the condition was fulfilled.

      3.  If under all the evidence upon the issue the jury could not reasonably find that the condition was fulfilled, the judge shall instruct the jury to disregard the evidence.

      (Added to NRS by 1971, 776)

      NRS 47.080  Determinations of admissibility: Hearing of jury.  In jury cases, hearings on preliminary questions of admissibility, offers of proof in narrative or question and answer form, and statements of the judge showing the character of the evidence shall to the extent practicable, unless further restricted by NRS 47.090, be conducted out of the hearing of the jury, to prevent the suggestion of inadmissible evidence.

      (Added to NRS by 1971, 776)

      NRS 47.090  Preliminary hearings on confessions and evidence.  Preliminary hearings on the admissibility of confessions or statements by the accused or evidence allegedly unlawfully obtained shall be conducted outside the hearing of the jury. The accused does not by testifying at the hearing subject himself or herself to cross-examination as to other issues in the case. Testimony given by the accused at the hearing is not admissible against the accused on the issue of guilt at the trial.

      (Added to NRS by 1971, 776)

      NRS 47.100  Weight and credibility.  NRS 47.060 to 47.090, inclusive, do not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

      (Added to NRS by 1971, 776)

      NRS 47.110  Limited admissibility.  When evidence which is admissible as to one party or for one purpose but inadmissible as to another party or for another purpose is admitted, the judge, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

      (Added to NRS by 1971, 776)

      NRS 47.120  Remainder of writings or recorded statements.

      1.  When any part of a writing or recorded statement is introduced by a party, the party may be required at that time to introduce any other part of it which is relevant to the part introduced, and any party may introduce any other relevant parts.

      2.  This section does not limit cross-examination.

      (Added to NRS by 1971, 776)

JUDICIAL NOTICE

      NRS 47.130  Matters of fact.

      1.  The facts subject to judicial notice are facts in issue or facts from which they may be inferred.

      2.  A judicially noticed fact must be:

      (a) Generally known within the territorial jurisdiction of the trial court; or

      (b) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned,

Ê so that the fact is not subject to reasonable dispute.

      (Added to NRS by 1971, 777)

      NRS 47.140  Matters of law.  The laws subject to judicial notice are:

      1.  The Constitution and statutes of the United States, and the contents of the Federal Register.

      2.  The Constitution of this State and Nevada Revised Statutes.

      3.  Any other statute of this State if brought to the attention of the court by its title and the day of its passage.

      4.  A county, city or town code which has been filed as required by NRS 244.118, 268.014, 269.168 or the city charter and any city ordinance which has been filed or recorded as required by the applicable law.

      5.  The Nevada Administrative Code.

      6.  A regulation not included in the Nevada Administrative Code if adopted in accordance with law and brought to the attention of the court.

      7.  The population category and organization of a city incorporated pursuant to general law.

      8.  The constitution, statutes or other written law of any other state or territory of the United States, or of any foreign jurisdiction, as contained in a book or pamphlet published by its authority or proved to be commonly recognized in its courts.

      (Added to NRS by 1971, 777; A 1973, 6; 1977, 1388; 1985, 231, 366; 2001, 632)

      NRS 47.150  Discretionary and mandatory notice.

      1.  A judge or court may take judicial notice, whether requested or not.

      2.  A judge or court shall take judicial notice if requested by a party and supplied with the necessary information.

      (Added to NRS by 1971, 777)

      NRS 47.160  Opportunity to be heard.  A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter to be noticed.

      (Added to NRS by 1971, 777)

      NRS 47.170  Time of taking notice.  Judicial notice may be taken at any stage of the proceeding prior to submission to the court or jury.

      (Added to NRS by 1971, 777)

PRESUMPTIONS

      NRS 47.180  Presumptions generally: Effect; direct evidence.

      1.  A presumption, other than a presumption against the accused in a criminal action, imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.

      2.  As applied to presumptions, “direct evidence” means evidence which tends to establish the existence or nonexistence of the presumed fact independently of the basic facts.

      (Added to NRS by 1971, 777)

      NRS 47.190  Determination on evidence of basic facts.  When a presumption is made conclusive by statute or no direct evidence is introduced contrary to the existence of the presumed fact, the question of the existence of the presumed fact depends upon the existence of the basic facts and is determined as follows:

      1.  If reasonable minds would necessarily agree that the evidence renders the existence of the basic facts more probable than not, the judge shall direct the jury to find in favor of the existence of the presumed fact.

      2.  If reasonable minds would necessarily agree that the evidence does not render the existence of the basic facts more probable than not, the judge shall direct the jury to find against the existence of the presumed fact.

      3.  If reasonable minds would not necessarily agree as to whether the evidence renders the existence of the basic facts more probable than not, the judge shall submit the matter to the jury with an instruction to find in favor of the existence of the presumed fact if they find from the evidence that the existence of the basic facts is more probable than not, but otherwise to find against the existence of the presumed fact.

      (Added to NRS by 1971, 777)

      NRS 47.200  Determination on evidence of presumed fact: Where basic facts established.  When reasonable minds would necessarily agree that the evidence renders the existence of the basic facts more probable than not, but direct evidence is introduced contrary to the existence of the presumed fact, the question of the existence of the presumed fact is determined as follows:

      1.  If reasonable minds would necessarily agree that the direct evidence renders the nonexistence of the presumed fact more probable than not, the judge shall direct the jury to find against the existence of the presumed fact.

      2.  If reasonable minds would necessarily agree that the direct evidence does not render the nonexistence of the presumed fact more probable than not, the judge shall direct the jury to find in favor of the presumed fact.

      3.  If reasonable minds would not necessarily agree as to whether the direct evidence renders the nonexistence of the presumed fact more probable than not, the judge shall submit the matter to the jury with an instruction to find in favor of the existence of the presumed fact unless they find from the direct evidence that its nonexistence is more probable than its existence, in which event they should find against its existence.

      (Added to NRS by 1971, 778)

      NRS 47.210  Determination on evidence of presumed fact: Where basic facts lacking.  When reasonable minds would necessarily agree that the evidence does not render the existence of the basic facts more probable than not, but direct evidence is introduced concerning the existence of the presumed fact, the judge shall submit the matter to the jury with an instruction to determine the existence of the presumed fact from the direct evidence without reference to the presumption.

      (Added to NRS by 1971, 778)

      NRS 47.220  Determination on evidence of presumed fact: Where basic facts doubtful.  When reasonable minds would not necessarily agree as to whether the evidence renders the existence of the basic facts more probable than not, and direct evidence is introduced concerning the existence of the presumed fact, the question of the existence of the presumed fact is determined as follows:

      1.  If reasonable minds would necessarily agree that the direct evidence renders the existence of the presumed fact more probable than not, the judge shall direct the jury to find in favor of the existence of the presumed fact.

      2.  If reasonable minds would necessarily agree that the direct evidence renders the nonexistence of the presumed fact more probable than not, the judge shall direct the jury to find against the existence of the presumed fact.

      3.  If reasonable minds would not necessarily agree that the direct evidence renders the nonexistence of the presumed fact more probable than not, the judge shall submit the matter to the jury with an instruction to find in favor of the existence of the presumed fact if they find from the evidence that the existence of the basic facts is more probable than not and unless they find the nonexistence of the presumed fact more probable than not, otherwise to find against the existence of the presumed fact.

      (Added to NRS by 1971, 778)

      NRS 47.230  Presumptions against accused in criminal actions.

      1.  In criminal actions, presumptions against an accused recognized at common law or created by statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt, are governed by this section.

      2.  The judge shall not direct the jury to find a presumed fact against the accused. When the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge may submit the question of guilt or of the existence of the presumed fact to the jury, if, but only if, a reasonable juror on the evidence as a whole, including the evidence of the basic facts, could find guilt or the presumed fact beyond a reasonable doubt. Under other presumptions, the existence of the presumed fact may be submitted to the jury if the basic facts are supported by substantial evidence, or are otherwise established, unless the evidence as a whole negatives the existence of the presumed fact.

      3.  Whenever the existence of a presumed fact against the accused is submitted to the jury, the judge shall give an instruction that the law declares that the jury may regard the basic facts as sufficient evidence of the presumed fact but does not require it to do so. In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge shall instruct the jury that its existence must, on all the evidence, be proved beyond a reasonable doubt.

      (Added to NRS by 1971, 779)

      NRS 47.240  Conclusive presumptions.  The following presumptions, and no others, are conclusive:

      1.  A malicious and guilty intent, from the deliberate commission of an unlawful act, for the purpose of injuring another.

      2.  The truth of the fact recited, from the recital in a written instrument between the parties thereto, or their successors in interest by a subsequent title, but this rule does not apply to the recital of a consideration.

      3.  Whenever a party has, by his or her own declaration, act or omission, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, the party cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it.

      4.  A tenant is not permitted to deny the title of his or her landlord at the time of the commencement of the relation.

      5.  The judgment or order of a court, when declared by titles 2, 3 and 6 of NRS to be conclusive; but such judgment or order must be alleged in the pleadings if there is an opportunity to do so; if there is no such opportunity, the judgment or order may be used as evidence.

      6.  Any other presumption which, by statute, is expressly made conclusive.

      (Added to NRS by 1971, 779)

      NRS 47.250  Disputable presumptions.  All other presumptions are disputable. The following are of that kind:

      1.  That an unlawful act was done with an unlawful intent.

      2.  That a person intends the ordinary consequences of that person’s voluntary act.

      3.  That evidence willfully suppressed would be adverse if produced.

      4.  That higher evidence would be adverse from inferior being produced.

      5.  That money paid by one to another was due to the latter.

      6.  That a thing delivered by one to another belonged to the latter.

      7.  That things which a person possesses are owned by that person.

      8.  That a person is the owner of property from exercising acts of ownership over it, or from common reputation of that ownership.

      9.  That official duty has been regularly performed.

      10.  That a court or judge, acting as such, whether in this State or any other state or country, was acting in the lawful exercise of the court’s or judge’s jurisdiction.

      11.  That a judicial record, when not conclusive, does still correctly determine or set forth the rights of the parties.

      12.  That a writing is truly dated.

      13.  That a letter duly directed and mailed was received in the regular course of the mail.

      14.  That a person not heard from in 3 years is dead.

      15.  That a child born in lawful wedlock is legitimate.

      16.  That the law has been obeyed.

      17.  That a trustee or other person, whose duty it was to convey real property to a particular person, has actually conveyed to that person, when such presumption is necessary to perfect the title of such person or a successor in interest.

      18.  In situations not governed by the Uniform Commercial Code:

      (a) That an obligation delivered up to the debtor has been paid.

      (b) That private transactions have been fair and regular.

      (c) That the ordinary course of business has been followed.

      (d) That there was good and sufficient consideration for a written contract.

      (Added to NRS by 1971, 779; A 1993, 2761)