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sexual assault lawyersNevada law clearly defines the process for proceeding to a punitive damages phase, which are: (1) an award of compensatory damages by the jury; and (2) the Court’s determination, as a matter of law, whether Plaintiff’s evidence is sufficient to prove the required elements to support an award of punitive damage.  Once these two (2) conditions are met (a compensatory damages award and a finding of sufficient evidence), the Court will then conduct a Petrocelli hearing, outside the presence of the jury, to determine whether the evidence proffered by Plaintiff in support of punitive damages is admissible for that purpose. 

According to NRS 48.035:

  Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.  However, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” 

Regarding admission of “evidence of other wrongs,” Nevada law states that:

Prior to admission of such evidence, the trial court must conduct a hearing on the record and determine (1) that the evidence is relevant to the crime charged; (2) that the other act is proven by clear and convincing evidence; and (3) that the probative value of the other act is not substantially outweighed by the danger of unfair prejudice.

Qualls v. State, 114 Nev. 900, 902 (1998)(citing Tinch v. State, 113 Nev. 1170, 1176 (1997); Armstrong v. State, 110 Nev. 1322, 1323-24 (1994)).  

While the Petrocelli rule originated in criminal cases, in Taylor v. Thunder, 116 Nev. 968, 973 (2000), the requirement for such a hearing was extended to civil cases.  In Taylor, the plaintiff filed a civil lawsuit for damages arising from the defendant’s sexual misconduct of a minor.  The jury returned a verdict against the defendant totaling nearly $250,000, which included an award for $25,000 in punitive damages.  On appeal, the defendant argued that the district court erred in admitting evidence of prior sexual misconduct with a different minor.  The Nevada Supreme Court affirmed the district court’s judgment and explained that: 

The district court’s decision to admit or exclude the evidence after conducting such a hearing, commonly referred to as a Petrocelli hearing, “is to be given great deference and will not be reversed absent manifest error.”  We now extend the rule to civil proceedings.  Evidence of prior bad acts may be admitted provided the evidence is relevant and the prior incident is proven by clear and convincing evidence. Even if the trial court determines that the prior bad act evidence is relevant, the “evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice.”

Id. at 973 (2000) (citing Qualls, 114 Nev. at 902).  See also Nev. Rev. Stats. § 48.035(1); and Petrocelli v. State, 101 Nev. 46 (1985)) 

Thus, the third and final condition precedent to the occurrence of a punitive damages phase is the Court’s determination, following a Petrocelli hearing, that: (1) the evidence of defendant’s prior misconduct was relevant to opportunity, intent, or common plan or scheme; (2) the prior wrongs were proven by clear and convincing evidence; and (3) the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.  Id. at 973-74, 46.  See also Nev. Rev. Stats. § 42.005(1); and Nev. Rev. Stats. § 48.035(1).

Thanks to Eglet Adams, and their sexual assault lawyers for their insight on prior bad acts and conducting a Petrocelli hearing.