1. In a district court, cases required to be tried by jury must be
so tried unless the defendant waives a jury trial in writing with the
approval of the court and the consent of the State. A defendant who
pleads not guilty to the charge of a capital offense must be tried by
jury.
2. In a Justice Court, a case must be tried by jury only if the
defendant so demands in writing not less than 30 days before trial.
Except as otherwise provided in NRS 4.390 and 4.400 ,
if a case is tried by jury, a reporter must be present who is a certified
court reporter and shall report the trial.
(Added to NRS by 1967, 1424; A 1983, 749; 1987, 614; 1993, 1412)
1. Trial juries for criminal actions are formed in the same manner
as trial juries in civil actions.
2. Except as provided in subsection 3, juries must consist of 12
jurors, but at any time before verdict, the parties may stipulate in
writing with the approval of the court that the jury consist of any
number less than 12 but not less than six.
3. Juries must consist of six jurors for the trial of a criminal
action in a Justice Court.
(Added to NRS by 1967, 1424; A 1983, 749)
The court shall conduct
the initial examination of prospective jurors, and defendant or his
attorney and the district attorney are entitled to supplement the
examination by such further inquiry as the court deems proper. Any
supplemental examination must not be unreasonably restricted.
(Added to NRS by 1967, 1424; A 1971, 246; 1979, 213)
1. Either side may challenge an individual juror for
disqualification or for any cause or favor which would prevent him as a
juror from adjudicating the facts fairly.
2. Challenges for cause shall be tried by the court. The juror
challenged and any other person may be examined as a witness on the trial
of the challenge.
(Added to NRS by 1968, 45)
When several defendants are tried together, they cannot
sever their peremptory challenges, but must join therein.
(Added to NRS by 1967, 1425)
1. If the offense charged is punishable by death or by
imprisonment for life, each side is entitled to eight peremptory
challenges.
2. If the offense charged is punishable by imprisonment for any
other term or by fine or by both fine and imprisonment, each side is
entitled to four peremptory challenges.
3. The State and the defendant shall exercise their challenges
alternately, in that order. Any challenge not exercised in its proper
order is waived.
(Added to NRS by 1967, 1425)
1. The court may direct that not more than six jurors in addition
to the regular jury be called and impaneled to sit as alternate jurors.
2. Alternate jurors, in the order in which they were called, shall
replace jurors who become unable or disqualified to perform their duties.
3. Alternate jurors shall:
(a) Be drawn in the same manner;
(b) Have the same qualifications;
(c) Be subject to the same examination and challenges;
(d) Take the same oath; and
(e) Have the same functions, powers, facilities and privileges, as
the regular jurors.
4. If an alternate juror is required to replace a regular juror
after the jury has retired to consider its verdict, the judge shall
recall the jury, seat the alternate and resubmit the case to the jury.
5. Each side is entitled to one peremptory challenge in addition
to those otherwise allowed by law if one or two alternate jurors are to
be impaneled, two peremptory challenges if three or four alternate jurors
are to be impaneled, and three peremptory challenges if five or six
alternate jurors are to be impaneled. The additional peremptory
challenges may be used against an alternate juror only, and the other
peremptory challenges allowed by statute may not be used against an
alternate juror.
(Added to NRS by 1967, 1425; A 2005, 306 )
If, before the conclusion of the trial, and there being no
alternate juror called or available, a juror dies, or becomes
disqualified or unable to perform his duty, the court may duly order him
to be discharged and a new juror may be sworn and the trial begun anew,
or the jury may be discharged and a new jury then or afterward impaneled.
(Added to NRS by 1967, 1425)
If, after the retirement of the jury, any accident or cause
occurs to prevent their being kept for deliberation, the jury may be
discharged.
(Added to NRS by 1967, 1425)
If by reason of
death, sickness or other disability the judge before whom a jury trial
has commenced is unable to proceed with the trial, any other judge
regularly sitting in or assigned to the court, upon certifying that he
has familiarized himself with the record of the trial, may proceed with
and finish the trial.
(Added to NRS by 1967, 1425)
If by reason of absence from the judicial district, death, sickness or
other disability the judge before whom the defendant has been tried is
unable to perform the duties to be performed by the court after a verdict
or finding of guilt, any other judge regularly sitting in or assigned to
the court may perform those duties; but if such other judge is satisfied
that he cannot perform those duties because he did not preside at the
trial or for any other reason, he may in his discretion grant a new trial.
(Added to NRS by 1967, 1425)
CONDUCT OF TRIAL
When the jury has been impaneled, the
court shall administer the following oath:
Do you and each of you solemnly swear that you will well and truly try
this case, now pending before this court, and a true verdict render
according to the evidence given, so help you God.
(Added to NRS by 1967, 1426)
1. The judge shall then admonish the jury that:
(a) No juror may declare to his fellow jurors any fact relating to
the case as of his own knowledge; and
(b) If any juror discovers during the trial or after the jury has
retired that he or any other juror has personal knowledge of any fact in
controversy in the case, he shall disclose such situation to the judge
out of the presence of the other jurors.
2. When any such disclosure is made, the judge shall examine the
juror who admits or is alleged to have personal knowledge, under oath, in
the presence of counsel for the parties, and may allow such counsel to
examine the juror.
3. If the juror has disclosed his own knowledge to the judge and
it appears that he has not declared any fact relating to the case to his
fellow jurors as of his own knowledge, the judge shall after the
examination decide whether the juror shall remain or shall be replaced by
an alternate juror.
4. If it appears that the juror has declared any fact relating to
the case to his fellow jurors as of his own knowledge, or that his vote
was influenced by such knowledge undisclosed, the judge shall declare a
mistrial.
(Added to NRS by 1967, 1426)
Before
any evidence has been introduced the judge may inform the jury they may
individually take notes during the trial, but he shall further caution
them not to rely upon their respective notes in case of conflict among
them, because the reporter’s notes contain the complete and authentic
record of the trial.
(Added to NRS by 1967, 1426)
The jury having been impaneled and
sworn, the trial shall proceed in the following order:
1. If the indictment or information be for a felony, the clerk
must read it and state the plea of the defendant to the jury. In all
other cases this formality may be dispensed with.
2. The district attorney, or other counsel for the State, must
open the cause. The defendant or his counsel may then either make his
opening statement or reserve it to be made immediately prior to the
presentation of evidence in his behalf.
3. The State must then offer its evidence in support of the
charge, and the defendant may then offer evidence in his defense.
4. The parties may then respectively offer rebutting testimony
only, unless the court, for good reasons, in furtherance of justice,
permit them to offer evidence upon their original cause.
5. When the evidence is concluded, unless the case is submitted to
the jury on either side, or on both sides, without argument, the district
attorney, or other counsel for the State, must open and must conclude the
argument.
(Added to NRS by 1967, 1426)
If the
indictment or information be for an offense punishable with death, two
counsel on each side may argue the case to the jury, but in such case, as
well as in all others, the counsel for the State must open and conclude
the argument. If it be for any other offense, the court may, in its
discretion, restrict the argument to one counsel on each side.
(Added to NRS by 1967, 1426)
1. Upon the close of the argument, the judge shall charge the
jury. He may state the testimony and declare the law, but may not charge
the jury in respect to matters of fact. The charge must be reduced to
writing before it is given; and no charge or instructions may be given to
the jury otherwise than in writing, unless by the mutual consent of the
parties. If either party requests it, the court must settle and give the
instructions to the jury before the argument begins, but this does not
prevent the giving of further instructions which may become necessary by
reason of the argument.
2. In charging the jury, the judge shall state to them all such
matters of law he thinks necessary for their information in giving their
verdict.
3. Either party may present to the court any written charge, and
request that it be given. If the court thinks it correct and pertinent,
it must be given; if not, it must be refused.
4. An original and one copy of each instruction requested by any
party must be tendered to the court. The copies must be numbered and
indicate who tendered them. Copies of instructions given on the court’s
own motion or modified by the court must be so identified. When requested
instructions are refused, the judge shall write on the margin of the
original the word “refused” and initial or sign the notation. The
instructions given to the jury must be firmly bound together and the
judge shall write the word “given” at the conclusion thereof and sign the
last of the instructions to signify that all have been given. After the
instructions are given, the judge may not clarify, modify or in any
manner explain them to the jury except in writing unless the parties
agree to oral instructions.
5. After the jury has reached a verdict and been discharged, the
originals of all instructions, whether given, modified or refused, must
be preserved by the clerk as part of the proceedings.
6. Conferences with counsel to settle instructions must be held
out of the presence of the jury and may be held in chambers at the option
of the court.
7. When the offense charged carries a possible penalty of life
without possibility of parole a charge to the jury that such penalty does
not exclude executive clemency is a correct and pertinent charge, and
must be given upon the request of either party.
(Added to NRS by 1967, 1427; A 1969, 401; 1981, 410)
In the trial of all indictments,
complaints and other proceedings against persons charged with the
commission of crimes or offenses, the person so charged shall, at his own
request, but not otherwise, be deemed a competent witness, the credit to
be given his testimony being left solely to the jury, under the
instructions of the court, but no special instruction shall be given
relating exclusively to the testimony of the defendant.
(Added to NRS by 1967, 1427)
1. No instruction shall be given relative to the failure of the
person charged with the commission of crime or offense to testify,
except, upon the request of the person so charged, the court shall
instruct the jury that, in accordance with a right guaranteed by the
Constitution, no person can be compelled, in a criminal action, to be a
witness against himself.
2. Nothing herein contained shall be construed as compelling any
such person to testify.
(Added to NRS by 1967, 1427)
1. In any prosecution for sexual assault or statutory sexual
seduction or for an attempt to commit or conspiracy to commit either
crime, the term “unchaste character” may not be used with reference to
the alleged victim of the crime in any instruction to the jury.
2. In a prosecution for sexual assault or statutory sexual
seduction, the court may not give any instructions to the jury to the
effect that it is difficult to prove or establish the crime beyond a
reasonable doubt.
(Added to NRS by 1975, 1132; A 1977, 1630; 1991, 126)
A defendant in a criminal action is presumed to be
innocent until the contrary is proved; and in case of a reasonable doubt
whether his guilt is satisfactorily shown, he is entitled to be acquitted.
(Added to NRS by 1967, 1427)
Every person charged with the commission of a crime shall be
presumed innocent until the contrary is proved by competent evidence
beyond a reasonable doubt; and when an offense has been proved against
him, and there exists a reasonable doubt as to which of two or more
degrees he is guilty, he shall be convicted only of the lowest.
(Added to NRS by 1967, 1427)
1. A reasonable doubt is one based on reason. It is not mere
possible doubt, but is such a doubt as would govern or control a person
in the more weighty affairs of life. If the minds of the jurors, after
the entire comparison and consideration of all the evidence, are in such
a condition that they can say they feel an abiding conviction of the
truth of the charge, there is not a reasonable doubt. Doubt to be
reasonable must be actual, not mere possibility or speculation.
2. No other definition of reasonable doubt may be given by the
court to juries in criminal actions in this State.
(Added to NRS by 1967, 1427; A 1991, 257)
1. In all trials the testimony of witnesses shall be taken orally
in open court, unless otherwise provided by statute.
2. The admissibility of evidence and the competency and privileges
of witnesses shall be governed by:
(a) The general provisions of title 4 of NRS;
(b) The specific provisions of any other applicable statute; and
(c) Where no statute applies, the principles of the common law as
they may be interpreted by the courts of the State of Nevada in the light
of reason and experience.
(Added to NRS by 1967, 1428; A 1971, 803)
If, upon a
trial or proceeding in a criminal case, the existence, constitution or
powers of any corporation shall become material, or be in any way drawn
in question, it is not necessary to produce a certified copy of the
articles or acts of incorporation, but the same may be proved by general
reputation, or by the printed statutes of the state, or government, or
country by which such corporation was created.
(Added to NRS by 1967, 1428)
Upon a trial for conspiracy, in a
case where an overt act shall be necessary to constitute the offense, the
defendant shall not be convicted unless one or more overt acts shall be
expressly alleged in the indictment or information, nor unless one of the
acts alleged shall have been proved; but other overt acts not alleged may
be given in evidence.
(Added to NRS by 1967, 1428)
Upon a
trial for having, with an intent to cheat or defraud another designedly,
by any false pretense, obtained the signature of any person, to a written
instrument, or having obtained from any person any money, personal
property, or valuable thing, the defendant shall not be convicted if the
false pretense shall have been expressed in language, unaccompanied by a
false token or writing, unless the pretense or some note or memorandum
thereof be in writing, subscribed by or in the handwriting of the
defendant, or unless the pretense be proved by the testimony of two
witnesses, or that of one witness and corroborating circumstances; but
this section shall not apply to a prosecution for falsely representing or
personating another, and, in such assumed character, marrying, or
receiving any money or property.
(Added to NRS by 1967, 1428)
1. The court may order the defendant or the State or both to show
cause why expert witnesses should not be appointed, and may request the
parties to submit nominations.
2. The court may appoint any expert witnesses agreed upon by the
parties, and may appoint witnesses of its own selection. An expert
witness shall not be appointed by the court unless he consents to act.
3. A witness so appointed shall be informed of his duties by the
court in writing, a copy of which shall be filed with the clerk, or at a
conference in which the parties shall have the opportunity to participate.
4. A witness so appointed shall advise the parties of his
findings, if any, and may thereafter be called to testify by the court or
by any party. He shall be subject to cross-examination by each party.
5. The court may determine the reasonable compensation of such a
witness and direct its payment out of such funds as may be provided by
law.
6. The parties also may call expert witnesses of their own
selection.
7. An expert witness, whether appointed by the court or called by
a party, may in the discretion of the judge be excluded from the
courtroom during the testimony of other witnesses.
(Added to NRS by 1967, 1428)
If a prosecuting attorney enters into an
agreement with a defendant in which the defendant agrees to testify
against another defendant in exchange for a plea of guilty or nolo
contendere to a lesser charge or for a recommendation of a reduced
sentence, the court shall:
1. After excising any portion it deems irrelevant or prejudicial,
permit the jury to inspect the agreement;
2. If the defendant who is testifying has not entered his plea or
been sentenced pursuant to the agreement, instruct the jury regarding the
possible related pressures on the defendant by providing the jury with an
appropriate cautionary instruction; and
3. Allow the defense counsel to cross-examine fully the defendant
who is testifying concerning the agreement.
(Added to NRS by 1991, 291; A 1995, 2451; 2003, 1460 )
1. A conviction shall not be had on the testimony of an accomplice
unless he is corroborated by other evidence which in itself, and without
the aid of the testimony of the accomplice, tends to connect the
defendant with the commission of the offense; and the corroboration shall
not be sufficient if it merely shows the commission of the offense or the
circumstances thereof.
2. An accomplice is hereby defined as one who is liable to
prosecution, for the identical offense charged against the defendant on
trial in the cause in which the testimony of the accomplice is given.
(Added to NRS by 1967, 1429)
Upon a trial for procuring or attempting to procure
an abortion, or aiding or assisting therein, the defendant must not be
convicted upon the testimony of the person upon or with whom the offense
has allegedly been committed, unless:
1. The testimony of that person is corroborated by other evidence;
or
2. The person giving the testimony is, and was at the time the
crime is alleged to have taken place, a police officer or deputy sheriff
who was performing his duties as such.
(Added to NRS by 1967, 1429; A 1979, 302; 1981, 1029; 2005, 308
)
If it appears by the testimony that the facts proved constitute an
offense of a higher nature than that charged in the indictment or
information, the court may direct the jury to be discharged, and all
proceedings on the indictment or information to be suspended, and may
order the defendant to be committed, or continued on, or admitted to
bail, to answer any new indictment or information which may be found or
filed against him for the higher offense.
(Added to NRS by 1967, 1429)
If an indictment
for the higher offense be dismissed by the grand jury, or be not found at
its next session, or if an information be not filed before the next
session of the grand jury, the court shall again proceed to try the
defendant on the original indictment or information.
(Added to NRS by 1967, 1429)
When a defendant who has given bail appears for
trial, the court may, in its discretion, at any time after his appearance
for trial, order him to be committed to the custody of the proper
officer, to abide the judgment or further order of the court, and he must
be committed and held in custody accordingly.
(Added to NRS by 1967, 1429)
When it appears, at any time before
verdict or judgment, that a mistake has been made in charging the proper
offense, the defendant must not be discharged, if there appears good
cause to detain him in custody; but the court must commit him, or require
him to give bail for his appearance to answer to the offense; and may
also require the witnesses to give bail for their appearance.
(Added to NRS by 1967, 1429)
If the jury is discharged because the court has not
jurisdiction of the offense charged, and it appears that it was committed
out of the jurisdiction of this state, the defendant must be discharged,
unless the court orders that he be detained for a reasonable time, to be
specified in the order, to enable the district attorney to communicate
with the chief executive officer of the country, state, territory or
district where the offense was committed.
(Added to NRS by 1967, 1429)
If the offense was committed
within the jurisdiction of another county of this state, the court may
direct the defendant to be committed for such time as it deems
reasonable, to await a warrant from the proper county for his arrest, or
it may admit him to bail in an undertaking, with sufficient sureties that
he will, within such time as the court may appoint, render himself
amenable to a warrant for his arrest from the proper county; and, if not
sooner arrested thereon, will attend at the office of the sheriff of the
county where the trial was had, at a certain time particularly specified
in the undertaking, to surrender himself upon the warrant, if issued, or
that his bail will forfeit such sum as the court may fix, to be mentioned
in the undertaking; and the clerk must forthwith transmit a certified
copy of the indictment or information, and of all the papers filed in the
action, to the district attorney of the proper county, the expenses of
which transmission are chargeable to that county.
(Added to NRS by 1967, 1430)
1. If the defendant is not arrested on a warrant from the proper
county, as provided in NRS 175.361 , he
must be discharged from custody, or his bail in the action is exonerated,
or money deposited instead of bail must be refunded, as the case may be,
and the sureties in the undertaking, as mentioned in that section, must
be discharged.
2. If he is arrested, the same proceedings must be had thereon as
upon the arrest of a defendant in another county on a warrant issued by a
magistrate.
(Added to NRS by 1967, 1430)
1. If, at any time after the evidence on either side is closed,
the court deems the evidence insufficient to warrant a conviction, it may
advise the jury to acquit the defendant, but the jury is not bound by
such advice.
2. The court may, on a motion of a defendant or on its own motion,
which is made after the jury returns a verdict of guilty, set aside the
verdict and enter a judgment of acquittal if the evidence is insufficient
to sustain a conviction. The motion for a judgment of acquittal must be
made within 7 days after the jury is discharged or within such further
time as the court may fix during that period.
3. If a motion for a judgment of acquittal after a verdict of
guilty pursuant to this section is granted, the court shall also
determine whether any motion for a new trial should be granted if the
judgment of acquittal is thereafter vacated or reversed. The court shall
specify the grounds for that determination. If the motion for a new trial
is granted conditionally, the order thereon does not affect the finality
of the judgment. If the motion for a new trial is granted conditionally
and the judgment is reversed on appeal, the new trial must proceed unless
the appellate court has otherwise ordered. If the motion is denied
conditionally, the defendant on appeal may assert error in that denial,
and if the judgment is reversed on appeal, subsequent proceedings must be
in accordance with the order of the appellate court.
(Added to NRS by 1967, 1430; A 1991, 651)
If a counsel seeks to withdraw from the case or is
discharged by the defendant for the purpose of delaying the trial, the
court shall not allow the counsel to be changed. The counsel for a
defendant may not be changed after a trial has commenced except upon good
cause shown to the court.
(Added to NRS by 1971, 596)
1. Whenever a defendant interferes with the orderly course of a
trial by his disruptive, disorderly or disrespectful conduct, the court
may:
(a) Order the defendant bound and gagged.
(b) Cite the defendant for contempt.
(c) Order the defendant removed from the courtroom and proceed with
the trial.
2. No such order or citation shall issue except after the
defendant has been fully and fairly informed that his conduct is wrong
and intolerable and has been warned of the consequences of continued
misconduct.
3. A defendant who has been removed from the courtroom may be
returned upon his promise to discontinue such misconduct. If his
misconduct continues after his return the court may proceed as provided
in subsection 1.
(Added to NRS by 1971, 847)
CONDUCT OF JURY
The
jurors sworn to try a criminal action may, at any time before the
submission of the case to the jury, in the discretion of the court, be
permitted to separate, depart for home overnight or be kept in charge of
a proper officer. Upon commencing deliberation, the jurors shall be kept
in charge of a proper officer, unless at the discretion of the court they
are permitted to depart for home overnight. When the jurors are kept
together, the officer in charge shall keep the jurors in some private and
convenient place and separate from other persons. He shall not permit any
communication to be made to them, or make any himself, unless by order of
the court, except to ask them if they have agreed upon their verdict. The
officer shall not, before the verdict is rendered, communicate to any
person the state of their deliberations or the verdict agreed upon. He
shall return them into court when they have reached their verdict or when
ordered by the court.
(Added to NRS by 1967, 1430; A 1977, 882)
At each
adjournment of the court, whether the jurors are permitted to separate or
depart for home overnight, or are kept in charge of officers, they must
be admonished by the judge or another officer of the court that it is
their duty not to:
1. Converse among themselves or with anyone else on any subject
connected with the trial;
2. Read, watch or listen to any report of or commentary on the
trial or any person connected with the trial by any medium of
information, including without limitation newspapers, television and
radio; or
3. If they have not been charged, form or express any opinion on
any subject connected with the trial until the cause is finally submitted
to them.
(Added to NRS by 1967, 1430; A 1977, 883; 1981, 318)
A room shall be provided by the sheriff of each county
for the use of the jury upon their retirement for deliberation, with
suitable furniture, fuel, lights and stationery, unless such necessaries
have been already furnished by the county. The court may order the
sheriff to do so, and the expenses incurred by him in carrying the order
into effect, when certified by the court, shall be a county charge.
(Added to NRS by 1967, 1431)
While the jury are kept together, either during the progress of the
trial or after their retirement for deliberation, they shall be provided,
at the expense of the county, with suitable and sufficient food and
lodging.
(Added to NRS by 1967, 1431)
Upon retiring for deliberation, the jury may take with
them:
1. All papers and all other items and materials which have been
received as evidence in the case, except depositions or copies of such
public records or private documents given in evidence as ought not, in
the opinion of the court, to be taken from the person having them in
possession.
2. The written instructions given, and notes of the testimony or
other proceedings on the trial, taken by themselves or any of them, but
none taken by any other person.
(Added to NRS by 1967, 1431)
After the jury have
retired for deliberation, if there is any disagreement between them as to
any part of the testimony, or if they desire to be informed on any point
of law arising in the cause, they must require the officer to conduct
them into court. Upon their being brought into court, the information
required shall be given in the presence of, or after notice to, the
district attorney and the defendant or his counsel.
(Added to NRS by 1967, 1431)
Except as provided in NRS 175.081 , the jury shall not be discharged after the
cause is submitted to them, until they have agreed upon their verdict and
rendered it in open court, unless by the consent of both parties, entered
upon the minutes, or unless, at the expiration of such time as the court
may deem proper, it satisfactorily appears that there is no reasonable
probability that the jury can agree.
(Added to NRS by 1967, 1431)
While
the jury are absent, the court may adjourn from time to time, as to other
business, but it shall nevertheless be deemed to be open for every
purpose connected with the cause submitted to the jury, until a verdict
be rendered or the jury discharged.
(Added to NRS by 1967, 1431)
VERDICT
The verdict shall be unanimous. It shall be
returned by the jury to the judge in open court.
(Added to NRS by 1967, 1431)
If there
are two or more defendants, the jury at any time during its deliberations
may return a verdict or verdicts with respect to a defendant or
defendants as to whom it has agreed; if the jury cannot agree with
respect to all, the defendant or defendants as to whom it does not agree
may be tried again.
(Added to NRS by 1967, 1431)
The defendant may be found guilty of an offense necessarily
included in the offense charged or of an attempt to commit either the
offense charged or an offense necessarily included therein if the attempt
is an offense.
(Added to NRS by 1967, 1431)
When the
defendant may be convicted of more than one offense charged, each offense
of which the defendant is convicted must be stated in the verdict or the
finding of the court.
(Added to NRS by 1967, 1431)
When
a verdict is returned and before it is recorded the jury shall be polled
at the request of any party or upon the court’s own motion. If upon the
poll there is not unanimous concurrence, the jury may be directed to
retire for further deliberation or may be discharged.
(Added to NRS by 1967, 1432)
ACQUITTAL
1. Where on a trial a defense of insanity is interposed by the
defendant and he is acquitted by reason of that defense, the finding of
the jury pending the judicial determination pursuant to subsection 2 has
the same effect as if he were regularly adjudged insane, and the judge
must:
(a) Order a peace officer to take the person into protective
custody and transport him to a forensic facility for detention pending a
hearing to determine his mental health;
(b) Order the examination of the person by two psychiatrists, two
psychologists, or one psychiatrist and one psychologist who are employed
by a division facility; and
(c) At a hearing in open court, receive the report of the examining
advisers and allow counsel for the State and for the person to examine
the advisers, introduce other evidence and cross-examine witnesses.
2. If the court finds, after the hearing:
(a) That there is not clear and convincing evidence that the person
is a mentally ill person, the court must order his discharge; or
(b) That there is clear and convincing evidence that the person is
a mentally ill person, the court must order that he be committed to the
custody of the Administrator of the Division of Mental Health and
Developmental Services of the Department of Health and Human Services
until he is regularly discharged therefrom in accordance with law.
Ę The court shall issue its finding within 90 days after the defendant is
acquitted.
3. The Administrator shall make the same reports and the court
shall proceed in the same manner in the case of a person committed to the
custody of the Division of Mental Health and Developmental Services
pursuant to this section as of a person committed because he is
incompetent to stand trial pursuant to NRS 178.400 to 178.460 ,
inclusive, except that the determination to be made by the Administrator
and the district judge on the question of release is whether the person
has recovered from his mental illness or has improved to such an extent
that he is no longer a mentally ill person.
4. As used in this section, unless the context otherwise requires:
(a) “Division facility” has the meaning ascribed to it in NRS
433.094 .
(b) “Forensic facility” means a secure facility of the Division of
Mental Health and Developmental Services of the Department of Health and
Human Services for mentally disordered offenders and defendants. The term
includes, without limitation, Lakes Crossing Center.
(c) “Mentally ill person” has the meaning ascribed to it in NRS
433A.115 .
(Added to NRS by 2003, 1459 )
If judgment
of acquittal be given on a verdict, and the defendant be not detained for
any other legal cause, he must be discharged as soon as the verdict is
given.
(Added to NRS by 1967, 1432)
Upon the entry of a
judgment of acquittal, the court shall provide the defendant with a
written notice of the provisions of NRS 179.255 which concern the sealing of records of the
proceedings leading to the acquittal.
(Added to NRS by 2001, 1690 )
HEARING TO DETERMINE WHETHER SEXUALLY MOTIVATED OFFENSE
1. In any case in which a defendant pleads or is found guilty of
murder in the first or second degree, kidnapping in the first or second
degree, false imprisonment, burglary or invasion of the home, the court
shall, at the request of the prosecuting attorney, conduct a separate
hearing to determine whether the offense was sexually motivated. A
request for such a hearing may not be submitted to the court unless the
prosecuting attorney, before the commencement of the trial, files and
serves upon the defendant a written notice of his intention to request
such a hearing.
2. A hearing requested pursuant to subsection 1 must be conducted
before:
(a) The court imposes its sentence; or
(b) A separate penalty hearing is conducted.
3. At the hearing, only evidence concerning the question of
whether the offense was sexually motivated may be presented. The
prosecuting attorney must prove beyond a reasonable doubt that the
offense was sexually motivated.
4. The court shall enter its finding in the record.
5. For the purposes of this section, an offense is “sexually
motivated” if one of the purposes for which the person committed the
offense was his sexual gratification.
(Added to NRS by 1995, 413; A 1997, 1666)
PENALTY HEARING FOR FIRST DEGREE MURDER
1. Except as otherwise provided in subsection 2, in every case in
which there is a finding that a defendant is guilty of murder of the
first degree, whether or not the death penalty is sought, the court shall
conduct a separate penalty hearing. The separate penalty hearing must be
conducted as follows:
(a) If the finding is made by a jury, the separate penalty hearing
must be conducted in the trial court before the trial jury, as soon as
practicable.
(b) If the finding is made upon a plea of guilty or a trial without
a jury and the death penalty is sought, the separate penalty hearing must
be conducted before a jury impaneled for that purpose, as soon as
practicable.
(c) If the finding is made upon a plea of guilty or a trial without
a jury and the death penalty is not sought, the separate penalty hearing
must be conducted before the judge who conducted the trial or who
accepted the plea of guilty, as soon as practicable.
2. In a case in which the death penalty is not sought or in which
a court has made a finding that the defendant is mentally retarded and
has stricken the notice of intent to seek the death penalty pursuant to
NRS 174.098 , the parties may by
stipulation waive the separate penalty hearing required in subsection 1.
When stipulating to such a waiver, the parties may also include an
agreement to have the sentence, if any, imposed by the trial judge. Any
stipulation pursuant to this subsection must be in writing and signed by
the defendant, his attorney, if any, and the prosecuting attorney.
3. During the hearing, evidence may be presented concerning
aggravating and mitigating circumstances relative to the offense,
defendant or victim and on any other matter which the court deems
relevant to sentence, whether or not the evidence is ordinarily
admissible. Evidence may be offered to refute hearsay matters. No
evidence which was secured in violation of the Constitution of the United
States or the Constitution of the State of Nevada may be introduced. The
State may introduce evidence of additional aggravating circumstances as
set forth in NRS 200.033 , other than
the aggravated nature of the offense itself, only if it has been
disclosed to the defendant before the commencement of the penalty hearing.
4. In a case in which the death penalty is not sought or in which
a court has found the defendant to be mentally retarded and has stricken
the notice of intent to seek the death penalty pursuant to NRS 174.098
, the jury or the trial judge shall
determine whether the defendant should be sentenced to life with the
possibility of parole or life without the possibility of parole.
(Added to NRS by 1977, 1543; A 1993, 322; 1995, 258, 2451; 2003,
767 , 1460 , 2082 )
In cases in which the death
penalty is sought:
1. The court shall instruct the jury at the end of the penalty
hearing, and shall include in its instructions the aggravating
circumstances alleged by the prosecution upon which evidence has been
presented during the trial or at the hearing. The court shall also
instruct the jury as to the mitigating circumstances alleged by the
defense upon which evidence has been presented during the trial or at the
hearing.
2. The jury shall determine:
(a) Whether an aggravating circumstance or circumstances are found
to exist;
(b) Whether a mitigating circumstance or circumstances are found to
exist; and
(c) Based upon these findings, whether the defendant should be
sentenced to imprisonment for a definite term of 50 years, life
imprisonment with the possibility of parole, life imprisonment without
the possibility of parole or death.
3. The jury may impose a sentence of death only if it finds at
least one aggravating circumstance and further finds that there are no
mitigating circumstances sufficient to outweigh the aggravating
circumstance or circumstances found.
4. If a jury imposes a sentence of death, the jury shall render a
written verdict signed by the foreman. The verdict must designate the
aggravating circumstance or circumstances which were found beyond a
reasonable doubt, and must state that there are no mitigating
circumstances sufficient to outweigh the aggravating circumstance or
circumstances found.
5. If a sentence of death is imposed and a prior determination
regarding mental retardation has not been made pursuant to NRS 174.098
, the defendant may file a motion to set
aside the penalty on the grounds that the defendant is mentally retarded.
If such a motion is filed, the court shall conduct a hearing on that
issue in the manner set forth in NRS 174.098 . If the court determines pursuant to such a
hearing that the defendant is mentally retarded, it shall set aside the
sentence of death and order a new penalty hearing to be conducted. Either
party may appeal such a determination to the Supreme Court pursuant to
NRS 177.015 .
(Added to NRS by 1977, 1543; A 1993, 322; 1995, 258; 2003, 768
, 2083 )
1. In a case in which the death penalty is sought, if a jury is
unable to reach a unanimous verdict upon the sentence to be imposed, the
district judge who conducted the trial or accepted the plea of guilty
shall sentence the defendant to life imprisonment without the possibility
of parole or impanel a new jury to determine the sentence.
2. In a case in which the death penalty is not sought, if a jury
is unable to reach a unanimous verdict upon the sentence to be imposed,
the trial judge shall impose the sentence.
(Added to NRS by 1977, 1543; A 1995, 259; 2003, 2083 )
|
