2023 Nevada Revised Statutes › Chapter 34 - Writs; Petition to Establish Factual Innocence › NRS 34.970 - Order by court requiring response to petition; contents of order; time for response; reply; consideration of petition by court; hearing on petition; stipulation of factual innocence of petitioner; issuance of order of factual innocence; explanation by court; appeal.

1. If the court does not dismiss a petition after reviewing the petition in accordance with NRS 34.960, the court shall order the prosecuting agency to file a response to the petition. The court’s order must:
(a) Specify which claims identified in the petition warrant a response from the prosecuting agency; and
(b) Specify which newly discovered evidence identified in the petition, if credible, might establish a bona fide issue of factual innocence.
2. The prosecuting agency shall, not later than 120 days after receipt of the court’s order requiring a response, or within any additional period the court allows, respond to the petition and serve a copy upon the petitioner and, if the prosecuting agency is the district attorney, the Attorney General.
3. Not later than 30 days after the date the prosecuting agency responds to the petition, the petitioner may reply to the response. Not later than 30 days after the expiration of the period during which the petitioner may reply to the response, the court shall consider the petition, any response by the prosecuting agency and any reply by the petitioner. If the court determines that the petition meets the requirements of NRS 34.960 and that there is a bona fide issue of factual innocence regarding the charges of which the petitioner was convicted, the court shall order a hearing on the petition. If the court does not make such a determination, the court shall enter an order denying the petition. For the purposes of this subsection, a bona fide issue of factual innocence does not exist if the petitioner is merely relitigating facts, issues or evidence presented in a previous proceeding or if the petitioner is unable to identify with sufficient specificity the nature and reliability of the newly discovered evidence that establishes the factual innocence of the petitioner. Unless stipulated to by the parties, the court may not grant a hearing on the petition during any period in which criminal proceedings in the matter are pending before any trial or appellate court.
4. If the court grants a hearing on the petition, the hearing must be held and the final order must be entered not later than 150 days after the expiration of the period during which the petitioner may reply to the response to the petition by the prosecuting agency pursuant to subsection 3 unless the court determines that additional time is required for good cause shown.
5. If the court grants a hearing on the petition, the court shall, upon the request of the petitioner, order the preservation of all material and relevant evidence in the possession or control of this State or any agent thereof during the pendency of the proceeding.
6. If the parties stipulate that the evidence establishes the factual innocence of the petitioner, the court may affirm the factual innocence of the petitioner without holding a hearing. If the prosecuting agency does not stipulate that the evidence establishes the factual innocence of the petitioner, a determination of factual innocence must not be made by the court without a hearing.
7. If the parties stipulate that the evidence establishes the factual innocence of the petitioner, the prosecuting agency makes a motion to dismiss the original charges against the petitioner or, after a hearing, the court determines that the petitioner has proven his or her factual innocence by clear and convincing evidence, the court shall:
(a) Vacate the petitioner’s conviction and issue an order of factual innocence and exoneration; and
(b) Order the sealing of all documents, papers and exhibits in the person’s record, minute book entries and entries on dockets and other documents relating to the case in the custody of such other agencies and officers as are named in the court’s order.
8. The court shall provide a written explanation of its determination that the petitioner proved or failed to prove his or her factual innocence by clear and convincing evidence.
9. Any order granting or denying a hearing on a petition pursuant to this section may be appealed by either party.
(Added to NRS by 2019, 2979; A 2023, 1635)