174.098 - Motion to declare that defendant is mentally retarded: When authorized; procedure. - Nevada Statutes

174.098  Motion to declare that defendant is mentally retarded: When authorized; procedure.

      1.  A defendant who is charged with murder of the first degree in a case in which the death penalty is sought may, not less than 10 days before the date set for trial, file a motion to declare that the defendant is mentally retarded.

      2.  If a defendant files a motion pursuant to this section, the court must:

      (a) Stay the proceedings pending a decision on the issue of mental retardation; and

      (b) Hold a hearing within a reasonable time before the trial to determine whether the defendant is mentally retarded.

      3.  The court shall order the defendant to:

      (a) Provide evidence which demonstrates that the defendant is mentally retarded not less than 30 days before the date set for a hearing conducted pursuant to subsection 2; and

      (b) Undergo an examination by an expert selected by the prosecution on the issue of whether the defendant is mentally retarded at least 15 days before the date set for a hearing pursuant to subsection 2.

      4.  For the purpose of the hearing conducted pursuant to subsection 2, there is no privilege for any information or evidence provided to the prosecution or obtained by the prosecution pursuant to subsection 3.

      5.  At a hearing conducted pursuant to subsection 2:

      (a) The court must allow the defendant and the prosecution to present evidence and conduct a cross-examination of any witness concerning whether the defendant is mentally retarded; and

      (b) The defendant has the burden of proving by a preponderance of the evidence that the defendant is mentally retarded.

      6.  If the court determines based on the evidence presented at a hearing conducted pursuant to subsection 2 that the defendant is mentally retarded, the court must make such a finding in the record and strike the notice of intent to seek the death penalty. Such a finding may be appealed to the Supreme Court pursuant to NRS 177.015.

      7.  For the purposes of this section, “mentally retarded” means significant subaverage general intellectual functioning which exists concurrently with deficits in adaptive behavior and manifested during the developmental period.

      (Added to NRS by 2003, 766)