Conferring With Your Client During Deposition
How many times have you seen a deposition stopped so the deponent could get a drink of water or use the restroom (wink, wink- speak with their attorney)? The article linked below digs up and breaks down a number of opinions which have explored this issue, including one from Nevada- In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614 (D. Nev. [...]
DUI And The Sixth Amendment: Lab Scientist Who Signed Report Must Testify, Not Colleague.
The Sixth Amendment’s Confrontation Clause gives the accused in all criminal prosecutions, the right, to be confronted with the witnesses against him. For anyone practicing in the area of DUI and drunk driving, the United States Supreme Court in Bullcoming v. New Mexico, (Slip opinion, June 2011), addressed the issue of “whether the Confrontation Clause [...]
Fifth Amendment Invocation Inadmissible
In Vipperman v. State, 96 Nev. 592 (1980), the Court held that in light of United States v. Hale, 422 U.S. 171 (1975), it was reversible error for the district attorney to repeatedly make reference to Defendant’s post-arrest silence in failing to reveal his alibi to the police. Defendant was arrested at the scene and [...]
Requisite Proof To Enhance A Third Domestic Violence Charge To A Felony
In Hobbs v. State, 127 Nev., Adv. Op. 18 (2011), the State failed to present the necessary proof to convict Hobbs of a felony battery domestic violence. Nevada’s domestic battery statute, NRS 200.485, provides that a defendant’s third domestic violence battery conviction within seven years must be enhanced to a felony. If the State seeks [...]
Act of Production Privilege Revisited
In order to invoke the Fifth Amendment protection, the party seeking to invoke the protection bears the burden of demonstrating that a compelled communication is testimonial. The Supreme Court held that in order to be considered testimonial, a “communication must itself, explicitly or implicitly, relate a factual assertion or disclose information” that expresses “the contents [...]
Nevada Clarifies Statutory Procedure For Determining Defendant Mentally Retarded
If you intend to argue that your client is of insufficient mental intelligence in order to avoid the death penalty, Nevada requires proof from before the defendant turned 18, which demonstrates by a preponderance of the evidence that he or she suffered from “significant subaverage intellectual functioning and adaptive behavior deficits.” In Ybarra v. State [...]
Public Safety Exception To Fifth Amendment
In Lamb v. State (March 3, 2011), the Nevada Supreme Court ruled, among other things, that Defendant’s statement to police that he had “a revolver” was properly admitted over objection that it violated Miranda v. Arizona, 384 U.S. 436, 467-68 (1966). The court stated, “Lamb’s motion to suppress sought to exclude his statement to the [...]
Admissibility of Statements When Expert Witness Unavailable
Under Crawford v. Washington, 541 U.S. 36 (2004), the testimonial statement of an otherwise unavailable witness is inadmissible “unless the defendant had an opportunity to previously cross-examine the witness regarding the witness’s statement.” Medina v. State, 122 Nev. 346, 353, 143 P.3d 471, 476 (2006). Recently, in Vega v. State, (126 Nev. Adv. Op. No. [...]
Pretextual Vehicle Stops And Windshield Obstruction
The word “upon” in the context of statutes similar to NRS 484.619 has been decided to mean “that the object be on or in direct contact with the windshield-it does not prohibit items hanging from rearview mirrors.” See U.S. v. King, 244 F.3d 736, 740 (9th Cir. 2001). In King, the Ninth Circuit, interpreting the [...]
Expert Testimony, Hallmark v. Eldridge Revisited
In Higgs v. State, 126 Nev. Adv. Op. 1 (2010), the Nevada Supreme Court revisited the issue of admissibility of expert testimony and clarified an inconsistency (real or perceived) in its prior ruling on the topic: Hallmark v. Eldridge, 189 P.3d 646 (Nev. 2008). A couple of things are clear after Higgs: 1. Nevada only [...]
