Appealing in Nevada : Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

The Court’s first published opinion of 2010, Higgs v. State,  was initially released in May 2009, as an unpublished order. The Court rejected Higgs’ various challenges to his conviction for the murder of his wife, Kathy Augustine, including the argument that a failure to grant a continuance to allow a defense expert a longer opportunity to review the prosecution’s

The opinion  was noteworthy for its extensive discussion of the different standards for admission of expert testimony presented by NRS 50.572  and the near identically worded FRE 702. Amicus curiae Nevada Justice Association moved for the publication of the ruling, which the Court granted.

Although in federal courts, the admission of expert testimony is governed by the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in Nevada, the test of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) continues to be the appropriate standard. The Court noted that to the extent Daubert presents a flexible approach, it may be considered persuasive, but a mechanistic application of the factors cited in Daubert is not appropriate in Nevada courts.

Under Frye, expert opinion based on a scientific technique is inadmissible unless the technique has “gained general acceptance in the particular field in which it belongs.” Under Daubert, admissibility is based upon the testimony’s “relevance and reliability.”  The difficulty of Daubert, however, is the tendency to apply the factors listed therein in a mechanical way, even those such factors were expressly not intended to be a definitive checklist, and would not even logically apply to situations outside scientific fields. In Higgs, the Court clarifies that admissibility standards for expert testimony in Nevada courts are not limited to the factors set forth in Daubert.

Hardesty drafted the 4-2 opinion, issued January 14, 2010.  Pickering recused.  Cherry and Saitta each filed separate dissents, with Cherry’s more strongly worded. 

The dissents, however, were  not directed at the Frye/Daubert debate, but instead, were directed at the Court’s conclusion that Higgs’s rights had not been violated by the denial of the continuance.  Both Cherry and Saitta expressly concurred with the Court’s reaffirmance of Frye as the appropriate evidentiary standard.

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Today in Wyman v. State, the Nevada Supreme Court reversed the conviction of a mother who had been convicted in 2007 for the murder of her toddler in 1974. The reversal was based upon the District Court’s refusal to allow the defendant to subpoena out of state evidence of the psychological records of the only witness to the alleged crime, who was the defendant’s daughter and victim’s sister.  The witness’ accusations emerged in the midst of psychological treatment for depression, after several suicide attempts.

Interpreting Nevada’s Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings, NRS 174.395, et seq.,  the Court held that the Act’s provisions apply to subpoenas duces tecum.  The Court further found that the requirement that the witness be material for the Act to apply means that the evidence has a logical connection with facts of consequence to the issues.  Applying this test, where the witness accusations had been intertwined with her “mental health issues and treatment to such an extent that her mental health became logically connected with her accusations.” The defendant was prejudiced by the District Court’s failure to allow the records to obtained by the defense.

The Court rejected a challenge to the complaint based on pre-indictment delay. The Court found the  defendant had not shown prejudice, as both the prosecution and defense were equally prejudiced by the delay, and had failed to show that the delay had been deliberate to gain a tactical advantage over the defense.

Opinion authored by Hardesty, 7-0.

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In the Webb v. Clark County School District, the  Nevada Supreme Court held that damages based upon treatment services for which licensing is required, but provided by individuals without such a license, are not recoverable in a tort action.  The Court also held that the Paul D. Coverdell Teacher Protection Act, 20 U.S.C. §6731, which immunizes school professionals from liability for reasonable actions taken to maintain order and discipline,  must be pleaded as an affirmative defense. Failure to affirmatively plead the defense results in a waiver.

Webb involved claims for a damages sustained by a student who alleged a teacher used excessive force in stopping a pushing incident at a school. The student had received psychological services from person licensed as an alcohol and substance abuse counselor, but not as a psychologist. Damages based on such treatment, including future damages based on the counselor’s recommendations, were not recoverable.  

Opinion by Hardesty, 7-0. 

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