Harmful Error

Hernandez v. State : "The State charged appellant Emmanuel Hernandez with first-degree murder with the use of a deadly weapon for shooting and killing Jose Gonzalez in front of the Palm Hills Apartments in Las Vegas. At the State's request, the district court admitted at trial the preliminary hearing testimony of a witness who did not arrive to testify as scheduled. In this appeal, we address the burden placed on the proponent of an absent witness's preliminary hearing testimony to show that reasonable diligence was used to acquire the presence of the witness.

In general, before preliminary hearing testimony may be entered into evidence in a criminal trial, the proponent must demonstrate that the witness is absent despite the proponent's reasonable efforts to procure the witness's attendance. We conclude first that if a motion to admit preliminary hearing testimony is untimely, the proponent of the testimony must support the motion with an affidavit or sworn testimony demonstrating good cause for the untimely motion. Good cause to allow an untimely motion exists only when the proponent has exercised reasonable diligence to procure the attendance of the witness before the expiration of the motion deadline. We conclude second that in this case, although the State may have exercised reasonable diligence before the expiration of the motion deadline, it did not demonstrate that it exercised reasonable diligence to secure the presence of the witness when it became aware of her absence after the expiration of the deadline, and therefore, the district court erred when it granted the State's motion to admit the witness's preliminary hearing testimony."

Congratulations to James Ruggeroli, attorney for Hernandez.

Moseley v. Dist. Ct. - wrongful death, NRCP 25, and NRCP 6(b)(2).

State, Bd. of Equalization v. Barta - issued last Friday - tax assessments and judicial review

Truck Ins. Exch. v. Palmer J. Swanson, Inc. - nonsignatory to an arbitration agreement, oral arguments, and unclean hands