2005 Nevada Revised Statutes - Chapter 47 — General Provisions; Judicial Notice; Presumptions

Title 4 - WITNESSES AND EVIDENCE

CHAPTER 47 - GENERAL PROVISIONS; JUDICIALNOTICE; PRESUMPTIONS

GENERAL PROVISIONS

NRS 47.020 Scopeof title 4 of NRS.

NRS 47.030 Purposesof title 4 of NRS.

NRS 47.040 Rulingson evidence: Effect of error.

NRS 47.050 Rulingson evidence: Record of offer and ruling.

NRS 47.060 Preliminaryquestions of admissibility: Determination.

NRS 47.070 Preliminaryquestions of admissibility: Relevancy conditioned on fact.

NRS 47.080 Determinationsof admissibility: Hearing of jury.

NRS 47.090 Preliminaryhearings on confessions and evidence.

NRS 47.100 Weightand credibility.

NRS 47.110 Limitedadmissibility.

NRS 47.120 Remainderof writings or recorded statements.

JUDICIAL NOTICE

NRS 47.130 Mattersof fact.

NRS 47.140 Mattersof law.

NRS 47.150 Discretionaryand mandatory notice.

NRS 47.160 Opportunityto be heard.

NRS 47.170 Timeof taking notice.

PRESUMPTIONS

NRS 47.180 Presumptionsgenerally: Effect; direct evidence.

NRS 47.190 Determinationon evidence of basic facts.

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

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

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

NRS 47.230 Presumptionsagainst accused in criminal actions.

NRS 47.240 Conclusivepresumptions.

NRS 47.250 Disputablepresumptions.

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GENERAL PROVISIONS

NRS 47.020 Scopeof title 4 of NRS.

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

(a) To the extent to which its provisions are relaxedby 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, theprovisions of chapter 49 of NRS with respectto privileges apply at all stages of all proceedings.

3. The other provisions of this title do not apply to:

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

(b) Proceedings with respect to release on bail.

(c) Sentencing, granting or revoking probation.

(d) Proceedings for extradition.

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

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

(Added to NRS by 1971, 775)

NRS 47.040 Rulingson evidence: Effect of error.

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

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

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

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

(Added to NRS by 1971, 775)

NRS 47.050 Rulingson evidence: Record of offer and ruling. Thejudge may add any other or further statement which shows the character of theevidence, the form in which it was offered, the objection made and the rulingthereon. He may direct the making of an offer in question and answer form, andon request shall do so in actions tried without a jury, unless it clearlyappears that the evidence is not admissible on any ground or is privileged.

(Added to NRS by 1971, 776)

NRS 47.060 Preliminaryquestions of admissibility: Determination.

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

2. In making his determination he is not bound by theprovisions of this title except the provisions of chapter49 of NRS with respect to privileges.

(Added to NRS by 1971, 776)

NRS 47.070 Preliminaryquestions of admissibility: Relevancy conditioned on fact.

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

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

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

(Added to NRS by 1971, 776)

NRS 47.080 Determinationsof admissibility: Hearing of jury. In jurycases, hearings on preliminary questions of admissibility, offers of proof innarrative or question and answer form, and statements of the judge showing thecharacter of the evidence shall to the extent practicable, unless furtherrestricted by NRS 47.090, be conductedout of the hearing of the jury, to prevent the suggestion of inadmissibleevidence.

(Added to NRS by 1971, 776)

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

(Added to NRS by 1971, 776)

NRS 47.100 Weightand credibility. NRS 47.060 to 47.090, inclusive, do not limit the rightof a party to introduce before the jury evidence relevant to weight orcredibility.

(Added to NRS by 1971, 776)

NRS 47.110 Limitedadmissibility. When evidence which isadmissible as to one party or for one purpose but inadmissible as to anotherparty or for another purpose is admitted, the judge, upon request, shallrestrict the evidence to its proper scope and instruct the jury accordingly.

(Added to NRS by 1971, 776)

NRS 47.120 Remainderof writings or recorded statements.

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

2. This section does not limit cross-examination.

(Added to NRS by 1971, 776)

JUDICIAL NOTICE

NRS 47.130 Mattersof fact.

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

2. A judicially noticed fact must be:

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

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

so that thefact is not subject to reasonable dispute.

(Added to NRS by 1971, 777)

NRS 47.140 Mattersof law. The laws subject to judicial noticeare:

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

2. The Constitution of this State and Nevada RevisedStatutes.

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

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

5. The Nevada Administrative Code.

6. A regulation not included in the NevadaAdministrative Code if adopted in accordance with law and brought to theattention of the court.

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

8. The constitution, statutes or other written law ofany other state or territory of the United States, or of any foreignjurisdiction, as contained in a book or pamphlet published by its authority orproved 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 Discretionaryand mandatory notice.

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

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

(Added to NRS by 1971, 777)

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

(Added to NRS by 1971, 777)

NRS 47.170 Timeof taking notice. Judicial notice may be takenat any stage of the proceeding prior to submission to the court or jury.

(Added to NRS by 1971, 777)

PRESUMPTIONS

NRS 47.180 Presumptionsgenerally: Effect; direct evidence.

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

2. As applied to presumptions, direct evidence meansevidence which tends to establish the existence or nonexistence of the presumedfact independently of the basic facts.

(Added to NRS by 1971, 777)

NRS 47.190 Determinationon evidence of basic facts. When a presumptionis made conclusive by statute or no direct evidence is introduced contrary tothe existence of the presumed fact, the question of the existence of thepresumed fact depends upon the existence of the basic facts and is determinedas follows:

1. If reasonable minds would necessarily agree thatthe 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 thepresumed fact.

2. If reasonable minds would necessarily agree thatthe evidence does not render the existence of the basic facts more probablethan not, the judge shall direct the jury to find against the existence of thepresumed fact.

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

(Added to NRS by 1971, 777)

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

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

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

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

(Added to NRS by 1971, 778)

NRS 47.210 Determinationon evidence of presumed fact: Where basic facts lacking. When reasonable minds would necessarily agree that theevidence does not render the existence of the basic facts more probable thannot, but direct evidence is introduced concerning the existence of the presumedfact, the judge shall submit the matter to the jury with an instruction todetermine the existence of the presumed fact from the direct evidence withoutreference to the presumption.

(Added to NRS by 1971, 778)

NRS 47.220 Determinationon evidence of presumed fact: Where basic facts doubtful. When reasonable minds would not necessarily agree as towhether the evidence renders the existence of the basic facts more probablethan not, and direct evidence is introduced concerning the existence of thepresumed fact, the question of the existence of the presumed fact is determinedas follows:

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

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

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

(Added to NRS by 1971, 778)

NRS 47.230 Presumptionsagainst accused in criminal actions.

1. In criminal actions, presumptions against anaccused recognized at common law or created by statute, including statutoryprovisions that certain facts are prima facie evidence of other facts or ofguilt, are governed by this section.

2. The judge shall not direct the jury to find apresumed fact against the accused. When the presumed fact establishes guilt oris an element of the offense or negatives a defense, the judge may submit thequestion of guilt or of the existence of the presumed fact to the jury, if, butonly if, a reasonable juror on the evidence as a whole, including the evidenceof the basic facts, could find guilt or the presumed fact beyond a reasonabledoubt. Under other presumptions, the existence of the presumed fact may be submittedto the jury if the basic facts are supported by substantial evidence, or areotherwise established, unless the evidence as a whole negatives the existenceof the presumed fact.

3. Whenever the existence of a presumed fact againstthe accused is submitted to the jury, the judge shall give an instruction thatthe law declares that the jury may regard the basic facts as sufficientevidence of the presumed fact but does not require it to do so. In addition, ifthe presumed fact establishes guilt or is an element of the offense ornegatives 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 Conclusivepresumptions. The following presumptions, andno others, are conclusive:

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

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

3. Whenever a party has, by his own declaration, actor omission, intentionally and deliberately led another to believe a particularthing true and to act upon such belief, he cannot, in any litigation arisingout of such declaration, act or omission, be permitted to falsify it.

4. A tenant is not permitted to deny the title of hislandlord at the time of the commencement of the relation.

5. The judgment or order of a court, when declared bytitles 2, 3 and 6 of NRS to be conclusive; but such judgment or order must bealleged in the pleadings if there is an opportunity to do so; if there is nosuch opportunity, the judgment or order may be used as evidence.

6. Any other presumption which, by statute, isexpressly 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 unlawfulintent.

2. That a person intends the ordinary consequences ofhis voluntary act.

3. That evidence willfully suppressed would be adverseif produced.

4. That higher evidence would be adverse from inferiorbeing produced.

5. That money paid by one to another was due to thelatter.

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

7. That things which a person possesses are owned byhim.

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

9. That official duty has been regularly performed.

10. That a court or judge, acting as such, whether inthis State or any other state or country, was acting in the lawful exercise ofhis jurisdiction.

11. That a judicial record, when not conclusive, doesstill 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 wasreceived 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 wasto convey real property to a particular person, has actually conveyed to him,when such presumption is necessary to perfect the title of such person or hissuccessor in interest.

18. In situations not governed by the UniformCommercial Code:

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

(b) That private transactions have been fair andregular.

(c) That the ordinary course of business has beenfollowed.

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

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