Panel trying to reform criminal evidence rules

A Supreme Court panel headed by Justices Michael Cherry and Michael Douglas is studying what many — particularly criminal defense lawyers — see as unfair practices in the rules of criminal procedure.

“We have had concerns with the application of criminal procedures,” Douglas told the Commission on the Administration of Justice.

He said the rules are different in every jurisdiction in Nevada because, unlike the Rules of Civil Procedure, there’s no set of standard rules for criminal procedure. He said those rules need to be standardized to ensure fairness in the judicial system.

Defense lawyers have complained they often have extreme difficulty getting access to the evidence against their clients. Clark County, for example, Douglas said won’t provide defense counsel discovery without a court order.

“I can tell you this exercise has been the most frustrating in my 40 years of legal practice,” said Clark County Public Defender Phil Kohn, a member of the advisory commission. He said often, they are forced to wait until the trial before they see the evidence, leaving pretty much no time to evaluate it.

But Douglas County District Attorney Mark Jackson said that’s not how it works in his office where he said defense lawyers have access to all the evidence.

Inmate Advocate Tonya Brown told the commission she and her brother, who was serving time on a rape conviction, had to wait 21 years and through two orders by different judges to get access to some of the evidence in his case.

“Defense attorneys need additional time to ferret out what’s available,” said Douglas.

He said there are also problems with the rules used in some rural counties including Elko where, he said, prosecutors have told the defense the evidence won’t be provided until trial.

While Commission Chairman Justice Jim Hardesty said they may be able to implement some statewide rules by Supreme Court order, Kohn said he believes the rules need to be established in statute to ensure all jurisdictions follow them.

Jackson agreed: “This is something that should have been done probably decades ago.”