dissenting:
I agree with Justice Shearing that this court should not expand the circumstances in which preliminary hearing testimony may be admitted under NRS 171.198. The legislature has enumerated the circumstances under which such testimony is admissible, these circumstances being, “when the witness is sick, out of state, dead, or persistent in refusing to testify despite an order of the judge to do so, or when his personal attendance cannot be had in court.” NRS 171.198(6)(b). The statute does not state that the testimony is admissible when the declarant is “unavailable” as defined in NRS 51.055. Unavailability includes being “exempted by ruling of the judge on the ground of privilege.” NRS 51.055(l)(a). We should not, in my opinion, overturn a line of our own cases and add to the defined statutory circumstances under which preliminary hearing testimony is admissible when a witness invokes the Fifth Amendment privilege.
I would reverse the judgments and remand the case based on the improper introduction of evidence at trial in violation of NRS 171.198(6)(b).