Braunstein v. State

Rose, J.,

concurring in part and dissenting in part:

Accusations of child sexual assault are often hard to disprove, even when a defendant is factually innocent. The majority strips yet another procedural safeguard from anyone accused of this crime 1 and reverses a decade of precedent in the process.

*81 NRS 51.385 requires that a district judge hold a hearing outside the presence of the jury to determine the reliability of a hearsay statement made by a child under the age of ten before admitting the statement into evidence for the jury’s consideration. In several cases, we have held that the law should be enforced as written and that it is mandatory to hold a reliability hearing before admitting these hearsay statements. 2 There are good reasons for the law and our holdings in Lytle and Quevedo.

First, there is always a concern that a witness can perceive and accurately relate what has been seen, felt, or heard; and this is especially true when children testify. Hearsay statements of children are usually testified to at trial by a parent, relative, health care provider, or law enforcement officer. Not only is the reliability of the child’s recollection of concern, but the motives of and influences on the adult repeating the child’s testimony in court are also relevant to the reliability determination. It is not uncommon for an adult testifying about a child’s statements to be angry at the accused or to have a financial interest in the balance. A reliability hearing determines if the repeated child’s statements as testified to by an adult are sufficiently trustworthy to be admitted in evidence.

Second, NRS 51.385 is an exception to the general rule that prohibits hearsay testimony. An exception to a general rule should be strictly construed. 3 The repeated statements of a child are often critical in a child sexual assault case and often damning to the defendant — should not such important testimony that is ordinarily excluded be at least tested for reliability as required by the law before it is presented to the jury?

Finally, the law itself is a directive, stating that a reliability hearing shall be held before child hearsay statements are admitted. We should not lightly reject the legislature’s concern for the reliability of this type of testimony as well as jettison our prior precedents in the process.

We have held in two cases that a harmless error analysis is appropriate when the child hearsay statements are those of the child on a videotape. 4 We reasoned that the tape of the testimony was already in the possession of the district court and presumably *82 reviewed by the district judge and parties. In both cases, the child-victim testified and had been cross-examined. The tapes were in large measure a repeat of the previous live testimony. Another consideration in those cases was that the victim’s own statements were on the tape recordings, not those of another person recollecting what the child-victim told him or her as is the case here. Three members of the majority recognized and approved this very exception to the previously existing general rule, a general rule that they now reject.

I too have precious little sympathy for adults who sexually assault children, but we should keep the process to determine guilt a fair and balanced one. We should save our condemnation of the accused until after he or she is proven guilty, not remove safeguards provided by the Legislature and previously approved by this court before guilt is established.

I am also concerned about the practical effect of subjecting all violations of NRS 51.385 to the harmless error rule. This court seldom finds an error not to be cured by the harmless error test. As a practical matter, the standard will now be that hearsay statements of children are admissible regardless of compliance with NRS 51.385, and it will only be the rare case that is reversed for non-compliance. When NRS 51.385 is violated in the future, this court will be compelled to search the record, as we have done in this case, to find that guilt was overwhelming or to find that the statements were reliable so that we may conclude that any error was harmless.

In effect, NRS 51.385 is written out of the law by the majority opinion. A better process would be to require the district attorneys and the district judges to comply with the law as written or retry the case — the approach this court had taken during the past decade.

I do agree with the majority’s insightful rejection of McMichael v. State and its progeny, 5 that have supported the admission of evidence showing an accused’s propensity for sexual aberration to establish his intent.

Therefore, I respectfully concur in part and dissent in part, and would reverse this case based on our prior precedents.

In Koerschner v. State, 116 Nev. 1111 , 13 P.3d 451 (2000), this court recently eliminated the requirement that a person accused of child sexual assault be provided the assistance of a psychiatrist or psychologist if the State uses such an expert witness in its prosecution. As I stated in my concurrence *81 to Koerschner , our previous rule providing for an accused to get the same expert assistance as the State in the absence of compelling reasons to protect the child-victim provided for a trial that was fair to both parties. The Koerschner decision eliminated this requirement, and, in my opinion, stripped the defendant of an important procedural safeguard.

Lytle v. State, 107 Nev. 589, 591 , 816 P.2d 1082, 1083 (1991); Quevedo v. State, 113 Nev. 35, 38 , 930 P.2d 750, 751 (1997).

See generally 73 Am. Jur. 2d Statutes § 313 (1974).

Lincoln v. State, 115 Nev. 317 , 988 P.2d 305 (1999); Brust v. State, 108 Nev. 872 , 839 P.2d 1300 (1992).

94 Nev. 184 , 577 P.2d 398 (1978), overruled on other grounds by Meador v. State, 101 Nev. 765 , 711 P.2d 852 (1985).