Nevada Constitutional Debates and Proceedings, pp. 53-58, 194, 781, 834.

Jury ! 9.

WESTLAW Topic No. 230.

C.J.S. Juries § 9.

NEVADA CASES.

Eminent domain: Restraint of taking. Legislature may permit boards of county commissioners, after determining necessity, to open roads. However, no property may be taken for this purpose until compensation has been made therefor to owner as required by Nev. Art. 1, § 8. Champion v. Sessions, 1 Nev. 478 (1865)

Due process clause requires that person have opportunity to establish any fact which would be protection to him or his property. Due process clause of Nev. Art. 1, § 8, not only requires that person shall be properly brought into court, but that he shall have opportunity to establish any fact which, according to usages of common law or provisions of constitution, would be protection to him or his property. Wright v. Cradlebaugh, 3 Nev. 341 (1867), cited, Persing v. Reno Stock Brokerage Co., 30 Nev. 342, at 349, 96 Pac. 1054 (1908), Hettel v. First Judicial Dist. Court, 30 Nev. 382, at 388, 96 Pac. 1062 (1908), Golden v. Fifth Judicial Dist. Court, 31 Nev. 250, at 258, 101 Pac. 1021 (1908), State ex rel. Howell v. Wildes, 34 Nev. 94, at 122, 116 Pac. 595 (1911), Ormsby County v. Kearney, 37 Nev. 314, at 369, 142 Pac. 803 (1914), State v. Fouquette, 67 Nev. 505, at 514, 221 P.2d 404 (1950), Barrett v. Baird, 111 Nev. 1496, at 1512, 908 P.2d 689 (1995), see also Vipperman v. State, 96 Nev. 592, 614 P.2d 532 (1980), Cosio v. State, 106 Nev. 327, 793 P.2d 836 (1990), Williams v. State, 110 Nev. 1182, 885 P.2d 536 (1994)

Legislature may authorize trial upon mere presentation of jury. Provision of Nev. Art. 1, § 8, which requires grand jury action before prosecution, would not prevent legislature from authorizing trial upon mere presentation of grand jury. State v. Millain, 3 Nev. 409 (1867)

Due process clause does not require legal proceedings to be same as at common law. Due process clause of Nev. Art. 1, § 8, does not require that legal proceedings be same as at common law. Mode and manner of procedure may be prescribed by statute. State v. Millain, 3 Nev. 409 (1867) (concurring opinion), cited, Ormsby County v. Kearney, 37 Nev. 314, at 369, 142 Pac. 803 (1914), Vineyard Land & Stock Co. v. District Court, 42 Nev. 1, at 23, 171 Pac. 166 (1918)

Grand jury should in some way approve prosecution for capital crime. Provision of Nev. Art. 1, § 8, that no person shall be held to answer for capital crime unless on presentment or indictment of grand jury means only that grand jury should in some form express its approval of prosecution, and legislature has power to prescribe what such form shall be. State v. Millain, 3 Nev. 409 (1867)

Meaning of "due process of law" as used in section. By "due process of law," as used in Nev. Art. 1, § 8, is meant such general legal forms and courses of proceedings as were known either to common law or were generally recognized in this country at time of adoption of Federal Constitution. Nothing further was intended than to secure to citizens usual and ordinary means of judicial proceedings generally followed or observed in similar cases at time it became part of fundamental law. Gibson v. Mason, 5 Nev. 283 (1869), cited, Ormsby County v. Kearney, 37 Nev. 314, at 369, 142 Pac. 803 (1914)

Tax imposed to pay for county bonds issued to aid private railroad construction was not taking without due process or just compensation. Imposition and collection of tax required by statute to provide money for payment of principal and interest on county bonds issued to privately owned railroad to aid construction does not constitute deprivation of property without due process of law or taking of private property for public use without just compensation as prohibited by Nev. Art. 1, § 8. Gibson v. Mason, 5 Nev. 283 (1869)

Due process clause does not guarantee jury trial in all cases involving citizen’s liberty or property. Due process clause of Nev. Art. 1, § 8, does not guarantee trial by jury in all cases in which citizen’s liberty or property is involved. Gibson v. Mason, 5 Nev. 283 (1869)

Legislature may collect taxes by summary process. Power of taxation, which is plenary in legislature, carries with it right and power of collecting taxes by summary process without judicial trial and judgment. Provisions of Nev. Art. 1, § 8, do not restrict power of state to seize, upon summary process, any property for taxes. Gibson v. Mason, 5 Nev. 283 (1869), cited, Sawyer v. Dooley, 21 Nev. 390, at 394, 32 Pac. 437 (1893)

Meaning of indictment of grand jury. Indictment of grand jury, under Nev. Art. 1, § 8, which provides that no person shall be tried for capital or other infamous crime except on presentment or indictment of grand jury, means written accusation made and presented by inquisition known as grand jury. State v. Chamberlain, 6 Nev. 257 (1871)

Court may not materially alter indictment of grand jury. Under Nev. Art. 1, § 8, which provides that no person shall be tried for capital or other infamous crime except on presentment or indictment of grand jury, court may not materially alter indictment. Therefore, where indictment for murder found by grand jury contained no allegation of locality of crime, as required by sec. 7, ch. 88, Stats. 1867 (cf. NRS 173.075), it was error for trial court to allow amendment of indictment, and judgment of conviction was reversed and district court instructed to submit case to another grand jury. (See also NRS 173.095.) State v. Chamberlain, 6 Nev. 257 (1871), distinguished, State v. Steward, 74 Nev. 65, at 70, 323 P.2d 23 (1958), In re Alexander, 80 Nev. 354, at 356, 393 P.2d 615 (1964)

Sufficiency of indictment. Where defendant is charged with assault with intent to murder, he has right under Nev. Art. 1, § 8, that indictment allege that, having ability and intent, he unlawfully and with malice aforethought attempted to murder victim. State v. O’Flaherty, 7 Nev. 153 (1871), cited, State v. Mills, 52 Nev. 10, at 15, 279 Pac. 759 (1929)

Legislature may not dispense with substance of indictments as required at common law. The power of legislature to prescribe form of indictment is plenary, but Nev. Art. 1, § 8, entitles defendant to finding by grand jury of essential and material facts, and legislature may not dispense with substance of indictments as required at common law. State v. O’Flaherty, 7 Nev. 153 (1871), cited, State v. McClear, 11 Nev. 39, at 45 (1876), State v. Thompson, 12 Nev. 140, at 145 (1877), State v. Steward, 74 Nev. 65, at 67, 323 P.2d 23 (1958)

Meaning of "just" in "just compensation." The word "just" in constitutional provision that private property shall not be taken for public use without "just compensation," (see Nev. Art. 1, § 8), is used to intensify meaning of word "compensation" and to convey idea that equivalent to be rendered shall be real, substantial, full and ample. Virginia & T.R.R. v. Henry, 8 Nev. 165 (1873), cited, Tacchino v. State ex rel. Dep’t of Highways, 89 Nev. 150, at 152, 508 P.2d 1212 (1973), see also Sorenson v. State ex rel. Dep’t of Highways, 92 Nev. 445, 552 P.2d 487 (1976), County of Clark v. Alper, 100 Nev. 382, 685 P.2d 943 (1984)

Prosecution may cross-examine defendant who chooses to testify. Under sec. 1, ch. 18, Stats. 1867 (cf. NRS 175.171), which provides that defendants in criminal cases may testify voluntarily, prosecution may cross-examine defendant who chooses to testify, and it is within discretion of court to allow prosecution to recall him for further cross-examination after defense has rested. If questioning is limited to legitimate cross-examination, there is no violation of Nev. Art. 1, § 8, which provides that no person in criminal case shall be compelled to be witness against himself. State v. Cohn, 9 Nev. 179 (1874), cited, Ex parte Hedden, 29 Nev. 352, at 364, 90 Pac. 737 (1907), distinguished, State v. Huff, 11 Nev. 17, at 27 (1876)

Section does not require formality of statement in indictment. Nev. Art. 1, § 8, relating to rights of persons accused of crimes, does not require formality of statement in indictment. State v. Derst, 10 Nev. 443 (1876)

Determination by legislature that condemnation of private property for particular purpose is for public use. Although determination by legislature that condemnation of private property for particular purpose is for public use is not conclusive, legislative determination should be treated by courts with consideration due to other department of state government. In case of doubt as to meaning of phrase "public use" in Nev. Art. 1, § 8, construction given to phrase by legislature should prevail. Dayton Gold & Silver Mining Co. v. Seawell, 11 Nev. 394 (1876), cited, State ex rel. Torreyson v. Grey, 21 Nev. 378, at 388, 32 Pac. 190 (1893), State ex rel. Coffin v. Howell, 26 Nev. 93, at 104, 64 Pac. 466 (1901), State ex rel. Standard Slag Co. v. Fifth Judicial Dist. Court, 62 Nev. 113, at 115, 143 P.2d 467 (1943), Urban Renewal Agency v. Iacometti, 79 Nev. 113, at 120, 379 P.2d 466 (1963), State ex rel. Milchem Inc. v. Third Judicial Dist. Court, 84 Nev. 541, at 547, 445 P.2d 148 (1968), Glenbrook Homeowners Ass’n, Inc. v. Pettitt, 112 Nev. 783, at 786, 919 P.2d 1061 (1996)

Law which takes property of one citizen and gives it to another for private use is unconstitutional. Nev. Art. 1, § 8, relating to due process of law and power of eminent domain, prohibits enactment of any law which takes property of one citizen and gives it to another for private use. If legislature goes beyond this limitation, it is duty of courts to declare act unconstitutional and void. Dayton Gold & Silver Mining Co. v. Seawell, 11 Nev. 394 (1876)

Private property can be taken for public use only by act of legislature when necessity exists. Under Nev. Art. 1, § 8, which provides that no person shall be deprived of property without due process of law and that private property shall not be taken for public use without compensation having been first made, private property cannot be taken for private use, and can be taken for public use only by act of legislature when necessity exists therefor. Dayton Gold & Silver Mining Co. v. Seawell, 11 Nev. 394 (1876), cited, Overman Silver Mining Co. v. Corcoran, 15 Nev. 147, at 154 (1880), State ex rel. Milchem Inc. v. Third Judicial Dist. Court, 84 Nev. 541, at 547, 445 P.2d 148 (1968)

Writ of mandamus issued where judge refused to hear petition on condemnation of private property. Where district judge refused to hear petition for condemnation of private property for access to mine, filed under sec. 1, ch. 57, Stats. 1875 (cf. NRS 37.010), on ground that statute was violation of due process and eminent domain provisions of Nev. Art. 1, § 8, writ of mandamus was issued to compel judge to hear petition. Dayton Gold & Silver Mining Co. v. Seawell, 11 Nev. 394 (1876)

Meaning of "public use." "Public use" as used in Nev. Art. 1, § 8, means public utility, benefit and advantage. Dayton Gold & Silver Mining Co. v. Seawell, 11 Nev. 394 (1876)

When defendant has been placed in jeopardy. Wherever accused has been placed upon trial upon valid indictment before competent court and jury duly impaneled, sworn and charged with case, he has been placed in jeopardy, from repetition of which provisions of Nev. Art. 1, § 8, relating to double jeopardy, protect him. Ex parte Maxwell, 11 Nev. 428 (1876), cited, State v. Holm, 55 Nev. 468, at 474, 37 P.2d 821 (1935), Wheeler v. Second Judicial Dist. Court, 82 Nev. 225, at 229, 415 P.2d 63 (1966), Hanley v. State, 83 Nev. 461, at 465, 434 P.2d 440 (1967), Shuman v. Sheriff, Carson City, 90 Nev. 227, at 228, 523 P.2d 841 (1974), Ybarra v. State, 103 Nev. 8, at 14, 731 P.2d 353 (1987), see also Schnepp v. State, 92 Nev. 557, 554 P.2d 1122 (1976), Hylton v. Eighth Judicial Dist. Court, 103 Nev. 418, 743 P.2d 622 (1987), distinguished, State v. Helm, 66 Nev. 286, at 291, 292, 209 P.2d 187 (1949)

Condemnation for purpose of bringing water into cities is "public use." Under ch. 100, Stats. 1866 (cf. NRS 536.060-536.090), which authorizes condemnation of land for purpose of bringing water into cities and towns, taking is for "public use" within meaning of that term as used in Nev. Art. 1, § 8, which provides that private property shall not be taken for public use without just compensation having first been made. Thorn v. Sweeney, 12 Nev. 251 (1877)

Privilege against self-incrimination does not prohibit compelling defendant to exhibit scars on his person to jury. Nev. Art. 1, § 8, which provides that no person shall be compelled, in any criminal case, to be witness against himself, relates only to oral testimony of defendant and production of letters or documents, contents of which would tend to incriminate him, and it cannot be applied to prevent ascertainment of the truth by compelling him to exhibit to jury marks or scars upon his person. State v. Ah Chuey, 14 Nev. 79 (1879), cited, State v. Petty, 32 Nev. 384, at 388, 108 Pac. 934 (1910), State v. Oschoa, 49 Nev. 194, at 207, 242 Pac. 582 (1926), Skidmore v. State, 59 Nev. 320, at 328, 92 P.2d 979 (1939), McCray v. State, 85 Nev. 597, at 599, 460 P.2d 160 (1969), Jacobs v. State, 91 Nev. 155, at 158, 532 P.2d 1034 (1975), Holyfield v. State, 101 Nev. 793, at 805, 711 P.2d 834 (1985)

Privilege against self-incrimination does not prohibit compelling defendant to exhibit identifying tattoo to jury. Nev. Art. 1, § 8, which provides that no person shall be compelled, in any criminal case, to be witness against himself, was not violated by court in compelling defendant, against his objection, to exhibit his arm so as to show certain tattoo marks to jury for purpose of identifying him. State v. Ah Chuey, 14 Nev. 79 (1879), cited, State v. Petty, 32 Nev. 384, at 388, 108 Pac. 934 (1910), State v. Oschoa, 49 Nev. 194, at 207, 242 Pac. 582 (1926), Skidmore v. State, 59 Nev. 320, at 328, 92 P.2d 979 (1939), McCray v. State, 85 Nev. 597, at 599, 460 P.2d 160 (1969), Jacobs v. State, 91 Nev. 155, at 158, 532 P.2d 1034 (1975)

Purpose of privilege against self-incrimination. Object of every criminal trial is to ascertain truth, and Nev. Art. 1, § 8, which provides that no person in criminal case shall be compelled to be witness against himself, was adopted because it was thought that defendant might, because of hope or fear, tell a falsehood. State v. Ah Chuey, 14 Nev. 79 (1879), cited, Holyfield v. State, 101 Nev. 793, at 805, 711 P.2d 834 (1985)

Mining constitutes public use for which property may be taken by eminent domain proceeding. Mining constitutes public use for which property may be taken by eminent domain proceedings, and sec. 1, ch. 57, Stats. 1875 (cf. NRS 37.010), which so provided, was not violation of Nev. Art. 1, § 8. Overman Silver Mining Co. v. Corcoran, 15 Nev. 147 (1880), cited, Goldfield Consol. Milling & Transp. Co. v. Old Sandstorm Annex Gold Mining Co., 38 Nev. 426, at 439, 150 Pac. 313 (1915), State ex rel. Standard Slag Co. v. Fifth Judicial Dist. Court, 62 Nev. 113, at 115, 143 P.2d 467 (1943), State ex rel. Milchem Inc. v. Third Judicial Dist. Court, 84 Nev. 541, at 548, 445 P.2d 148 (1968)

Application of proceeds from sale under execution. Proceeds of sale under execution are property of judgment creditor to extent of his judgment, and surplus is property of judgment debtor. No part of proceeds may be applied, without consent, to payment of any claim that has not been ascertained and determined by due process of law, since such application would constitute deprivation of property without due process of law in violation of Nev. Art. 1, § 8. Coscia v. Kyle, 15 Nev. 394 (1880), cited, Nash v. Muldoon, 16 Nev. 404, at 410 (1882), distinguished, Alexander v. Archer, 21 Nev. 22, at 28, 24 Pac. 373 (1890), Hall v. Adair, 69 Nev. 267, at 271, 249 P.2d 231 (1952)

In all cases of manifest necessity trial court has discretion to discharge jury without consent of defendant and without discharge causing bar to another trial. Under B §§ 2020 and 2021 (cf. NRS 175.081 and 175.461), relating to discharge of juries in criminal cases, and Nev. Art. 1, § 8, relating to double jeopardy, trial courts are invested with power, in sound exercise of legal discretion, to discharge jury after cause has been submitted, without consent of defendant and without discharge constituting bar to another trial, in all cases of manifest necessity, whether such necessity arises from some physical cause occurring during trial or deliberation, or from inability of jury to agree upon verdict. State v. Pritchard, 16 Nev. 101 (1881), cited, Wheeler v. Second Judicial Dist. Court, 82 Nev. 225, at 229, 415 P.2d 63 (1966), Williamson v. Sheriff, Clark County, 89 Nev. 507, at 509, 515 P.2d 1028 (1973), see also Gaitor v. State, 106 Nev. 785, 801 P.2d 1372 (1990)

Due process is applicable to limited extent to proceeding to collect taxes. Provision of Nev. Art. 1, § 8, prohibiting deprivation of life, liberty or property without due process of law is applicable to limited extent to proceeding to collect taxes. It certainly does not mean that there must necessarily be decree, judgment, or any court action whatever to authorize legal taking of property for taxes. State v. Central Pac. R.R., 21 Nev. 260, 30 Pac. 689 (1892), cited, Sawyer v. Dooley, 21 Nev. 390, at 394, 32 Pac. 437 (1893)

Constitution does not prohibit legislature from excluding defense of estoppel by former judgment from action to collect taxes. Nothing in constitution, including provision of Nev. Art. 1, § 8, prohibiting deprivation of life, liberty or property without due process of law, required that defense of former recovery or estoppel by former judgment, should be permitted in actions to collect taxes, or prohibited legislature from excluding such defense in such actions. State v. Central Pac. R.R., 21 Nev. 260, 30 Pac. 689 (1892)

Due process as applied to collection of taxes requires observance of only most fundamental steps. While Nev. Art. 1, § 8, requires that property shall not be taken from owner, either for taxes or anything else without due process of law, that provision, as applied to collection of taxes, requires observance of only most essential and fundamental steps. State v. Central Pac. R.R., 21 Nev. 260, 30 Pac. 689 (1892)

Giving credence to judgments of courts of general jurisdiction does not require establishing conclusive presumptions that deny due process. Nev. Art. 1, § 8, prevents deprivation of property without due process of law, and although public policy demands that credence be given to findings and judgments of courts of general jurisdiction, it must not be carried to extent of establishing conclusive presumptions which would tend to deprive citizen of these rights. Lonkey v. Keyes Silver Mining Co., 21 Nev. 312, 31 Pac. 57 (1892)

Due process clause does not prevent collection of taxes by summary procedure. It has been uniformly held, upon grounds that seem entirely satisfactory, that Nev. Art. 1, § 8, prohibiting deprivation of property without due process of law, does not prevent collection of taxes by summary process instead of by regular proceedings in court. Sawyer v. Dooley, 21 Nev. 390, 32 Pac. 437 (1893)

Statute authorizing sale of property for tax lien by giving notice and without court action was not violation of due process. Statute which authorized sale of property upon which property tax was lien by giving certain notices without necessity of court action where amount of tax was below $300 did not violate Nev. Art. 1, § 8, prohibiting deprivation of property without due process of law. Sawyer v. Dooley, 21 Nev. 390, 32 Pac. 437 (1893)

When constitutional provision requiring grand jury indictment for trial on capital offense was adopted people had in view grand jury as it existed at common law. When people of Nevada adopted provision of Nev. Art. 1, § 8, prohibiting trial for capital or other infamous offense except on presentment or indictment of grand jury, they had in view grand jury as it existed at common law and under statutes existing at time of adoption of constitution. State v. Hartley, 22 Nev. 342, 40 Pac. 372 (1895), cited, Parus v. District Court, 42 Nev. 229, at 251, 174 Pac. 706 (1918), dissenting opinion, distinguished, Parus v. District Court, 42 Nev. 229, at 243, 174 Pac. 706 (1918)

Statutes reducing number of grand jurors required to less than 12 held unconstitutional. Because Nev. Art. 1, § 8, pertaining to grand jury indictment, envisioned grand jury as constituted at common law and under statutes existing at time of adoption of constitution, and because sec. 8, ch. 65, Stats. 1873 (cf. NRS 6.110 and 6.120), requiring selection of 17 grand jurors from 24 summoned, and secs. 226 and 227, ch. 104, Stats. 1861 (cf. NRS 172.015 and 172.025), requiring 12 grand jurors to concur to find indictment, were in force at such time and declaratory of common law, later statutes reducing number of grand jurors required to be summoned, selected and find indictment were unconstitutional. State v. Hartley, 22 Nev. 342, 40 Pac. 372 (1895)

Defendant properly indicted by 17 grand jurors from 24 summoned. Defendant was indicted by legal body where he was indicted by grand jury selected under provisions of sec. 8, ch. 65, Stats. 1873 (cf. NRS 6.110 and 6.120), requiring selection of 17 grand jurors from 24 summoned, rather than by grand jury of 10 selected from 12 summoned, as required by later statute in force at time of indictment, because later statute violated provision of Nev. Art. 1, § 8, pertaining to indictment by grand jury. State v. Hartley, 22 Nev. 342, 40 Pac. 372 (1895)

Defendant has right to counsel in trial by court-martial convened under Nevada law. Under provision of Nev. Art. 1, § 8, which requires that defendant in criminal trial be allowed to appear and defend with counsel, allowance of counsel in trial by court-martial convened under Nevada law is not matter of courtesy. Defendant has right to counsel. State ex rel. Huffaker v. Crosby, 24 Nev. 115, 50 Pac. 127 (1897)

Constitutional rights violated where defendant convicted of felony other than that for which he was indicted. Where petitioner in habeas corpus proceeding had been convicted of felony other than that for which he was indicted, his constitutional rights under Nev. Art. 1, § 8, were violated, judgment of trial court was void, and his detention under commitment issued on such judgment was unjustified. Ex parte Dela, 25 Nev. 346, 60 Pac. 217 (1900), cited, Wilson v. Morse, 25 Nev. 375, at 377, 60 Pac. 832 (1900), Ex parte Maher, 25 Nev. 422, at 424, 62 Pac. 1 (1900), Eureka Bank Cases, 35 Nev. 80, at 111, 126 Pac. 655, 129 Pac. 308 (1912), In re Booth, 39 Nev. 183, at 186, 154 Pac. 933 (1916), In re McKay, 63 Nev. 262, at 267, 168 P.2d 315 (1946), State ex rel. Fogliani v. Carter, 79 Nev. 146, at 150, 379 P.2d 945 (1963)

Apportionment of city license fees between state, county and city violated constitutional provision against taking without just compensation. Provision in act incorporating city which required that moneys received from city licenses be apportioned one-fourth to state, one-fourth to county, and remainder to city, was in conflict with Nev. Art. 1, § 8, which provides, in part, that private property shall not be taken for public use without compensation, and writ of mandamus was issued to compel treasurer to deposit all receipts in city general fund. State ex rel. City of Reno v. Boyd, 27 Nev. 249, 74 Pac. 654 (1903)

Privilege against self-incrimination extends to private books and papers. Under Nev. Art. 1, § 8, and 5th amendment to U.S. Constitution, providing for privilege against self-incrimination, witness may refuse to testify against himself in criminal prosecution, and exemption extends also to his private books and papers. Ex parte Hedden, 29 Nev. 352, 90 Pac. 737 (1907)

Court exceeded its jurisdiction and violated due process by ordering person not party to action to surrender property. Where, in proceedings following rendition of judgment for plaintiff, third person testified that he refused to surrender automobile attached by plaintiff because defendant had delivered automobile to him as security for his claims against defendant, court exceeded its jurisdiction in ordering third person to surrender automobile, and properly set aside such order subsequently, because third person was not party to action, and to hold that court could destroy his asserted lien on automobile upon plaintiff’s unsupported affidavit would violate Nev. Art. 1, § 8, under which no person may be deprived of property without due process of law. Persing v. Reno Stock Brokerage Co., 30 Nev. 342, 96 Pac. 1054 (1908), cited, State v. Fouquette, 67 Nev. 505, at 514, 221 P.2d 404 (1950)

Convicted defendant who is granted second trial waives right to raise issue of double jeopardy. Where defendant in criminal prosecution is convicted and asks for second trial to relieve himself of jeopardy in which he finds himself, and his request is granted, he is estopped from asserting former acquittal on his second trial and waives his constitutional right of pleading being once in jeopardy, guaranteed by Nev. Art. 1, § 8, and sec. 11, ch. 104, Stats. 1861 (cf. NRS 178.391), because by his own voluntary act and petition he has removed bar of double jeopardy. In re Somers, 31 Nev. 531, 103 Pac. 1073 (1909)

Examination and testimony of court-appointed physician did not violate defendant’s privilege against self-incrimination. Where defendant, indicted for murder, interposed defense of sadistic insanity and introduced as expert witness, physician who testified concerning physical condition of defendant as bearing on his alleged insanity, examination of defendant by court-appointed physicians and their subsequent testimony as to results of their examination did not violate Nev. Art. 1, § 8, which provides that no person in any criminal case shall be compelled to be witness against himself, because privilege guaranteed by constitution is not merely immunity from compulsion, but immunity from testimonial compulsion. State v. Petty, 32 Nev. 384, 108 Pac. 934 (1910), cited, Skidmore v. State, 59 Nev. 320, at 328, 92 P.2d 979 (1939), State v. Fouquette, 67 Nev. 505, at 538, 221 P.2d 404 (1950)

Act making it unlawful for private individual to engage in banking business held unconstitutional. On petition for writ of mandamus to compel issuance of license to engage in business of banking, act making it unlawful for private individual to engage in banking business was held unconstitutional under Nev. Art. 1, § 1, declaring rights to liberty, property and pursuit of happiness, Nev. Art. 1, § 8, guaranteeing due process of law, and Nev. Art. 1, § 20, providing that enumeration of rights in constitution does not impair others retained by the people. Marymount v. Nevada State Banking Bd., 33 Nev. 333, 111 Pac. 295 (1910), cited, Eureka Bank Cases, 35 Nev. 80, at 98, 126 Pac. 655, 129 Pac. 308 (1912)

Justice of the peace may not try person for murder. Determination of or assumption by justice of the peace that he has jurisdiction to try person for murder does not give him jurisdiction, for Nev. Art. 1, § 8, and former provisions of Nev. Art. 6, § 6, conclusively establish that only district court upon indictment of grand jury may try one on such charge. Eureka Bank Cases, 35 Nev. 80, 126 Pac. 655, 129 Pac. 308 (1912)

Remarks by district attorney concerning defendant’s failure to produce witnesses was not violation of privilege against self-incrimination. Remarks by district attorney concerning defendant’s failure to produce witnesses, including defendant’s brother, in prosecution for permitting unlawful gambling on defendant’s premises, where it was testified that brother was present at game charged, did not violate U.S. 5th amendment or Nev. Art. 1, § 8, granting persons accused of crime immunity from testifying against themselves, or RL § 7161 (cf. NRS 175.181), requiring court to instruct jury that no inference of guilt may be drawn from defendant’s failure to testify, and did not constitute argument that defendant was guilty for failure to testify. State v. Williams, 35 Nev. 276, 129 Pac. 317 (1912), cited, State v. Gambetta, 66 Nev. 317, at 333, 208 P.2d 1059 (1949)

Court’s refusal to grant continuance of trial to employ counsel was not denial of right to counsel where defendant had on previous occasions failed to signify his desire for counsel. Where defendant, after being indicted for assault with deadly weapon, waived his right to counsel at arraignment and failed to signify his desire for counsel on two subsequent occasions on which he was brought into court, he was not deprived of constitutional right under Nev. Art. 1, § 8, giving accused the privilege of counsel, by refusal of trial court to grant continuance to employ counsel at time case was called for trial and after preliminary order had been entered. State v. MacKinnon, 41 Nev. 182, 168 Pac. 330 (1917), cited, Polito v. State, 71 Nev. 135, at 142, 282 P.2d 801 (1955), Wade v. State, 97 Nev. 350, at 351, 630 P.2d 1219 (1981), distinguished, Ross v. State, 97 Nev. 40, at 42, 623 P.2d 980 (1981)

Being defended by counsel is privilege that may be exercised or waived. Purpose of Nev. Art. 1, § 8, providing that person charged with crime shall be allowed to appear and defend with counsel is to guarantee to one charged with crime privilege of being defended by counsel, and being privilege, it may be exercised or waived. State v. MacKinnon, 41 Nev. 182, 168 Pac. 330 (1917)

Where defendant has waived privilege to be defended by counsel, conviction will not be reversed because court refused to grant continuance to employ counsel. Where accused has once waived his privilege to appear and defend with counsel, granted by Nev. Art. 1, § 8, judgment of conviction will not be reversed because court at later date refused to grant continuance in order that counsel might be employed, unless court abused its discretion in denying continuance. State v. MacKinnon, 41 Nev. 182, 168 Pac. 330 (1917), cited, Polito v. State, 71 Nev. 135, at 142, 282 P.2d 801 (1955), Wade v. State, 97 Nev. 350, at 351, 630 P.2d 1219 (1981), distinguished, Ross v. State, 97 Nev. 40, at 42, 623 P.2d 980 (1981)

Statute relating to water rights does not violate due process. In prohibition proceedings, contention that ch. 140, Stats. 1913, as amended, ch. 253, Stats. 1915 (cf. NRS 533.010), relating to water rights, violated Nev. Art. 1, § 8, which prohibits taking of private property without just compensation, was unfounded, because nowhere does law contemplate taking of private property for any use whatever. Its sole purpose is to secure rights which have vested, and to see that water is distributed in accordance with rights of appropriators as they actually exist. Vineyard Land & Stock Co. v. District Court, 42 Nev. 1, 171 Pac. 166 (1918), cited, In re Waters of Barber Creek, 43 Nev. 407, at 409, 187 Pac. 1004 (1920), Pitt v. Scrugham, 44 Nev. 418, at 429, 195 Pac. 1101 (1921), In re Waters of Manse Spring, 60 Nev. 280, at 290, 108 P.2d 311 (1940), Provenzano v. Long, 64 Nev. 412, at 427, 183 P.2d 639 (1947), Wolford v. Wolford, 65 Nev. 710, at 716, 200 P.2d 988 (1948), In re Filippini, 66 Nev. 17, at 27, 202 P.2d 535 (1949), McCormick v. Sixth Judicial Dist. Court, 69 Nev. 214, at 217, 246 P.2d 805 (1952)

Statute making it felony for person to have hide of any cattle from which ears had been removed or brand obliterated held unconstitutional. Statute which made it felony for any person to have in his possession the hide of any cattle from which ears had been removed or brand obliterated was unconstitutional and void as violation of U.S. 14th amendment and Nev. Art. 1, § 8, providing that no person shall be deprived of property without due process of law. State v. Park, 42 Nev. 386, 178 Pac. 389 (1919)

Statute which deemed rates of public service commission reasonable and to remain in force until determination by court was constitutional. Statute which provided that rates fixed by public service commission be deemed reasonable and just and remain in force and effect until final determination of courts having jurisdiction did not violate Nev. Art. 1, § 8, or former provisions of Nev. Art. 6, § 6, dealing with due process and equitable jurisdiction of district courts. Garson v. Steamboat Canal Co., 43 Nev. 298, 185 Pac. 801, 1119 (1919)

Prosecution by information. Provisions of constitution of Nevada (see Nev. Art. 1, § 8) which permit prosecutions by information do not violate U.S. Constitution. State v. Ceja, 53 Nev. 281, 2 P.2d 124 (1931)

Ordinance which prohibited sale of cigarettes by drug stores held constitutional. Ordinance which prohibited sale of cigarettes by drug stores, for reason stated in preamble that sale of cigarettes where narcotics are sold facilitated illegal sale of narcotics by addition of such drugs to cigarettes, was not unconstitutional as being without factual basis for discrimination and therefore arbitrary and discriminatory in violation of U.S. 14th amendment and Nev. Art. 1, § 8. Ex parte Nash, 55 Nev. 92, 26 P.2d 353 (1933)

No legislation reasonably aimed at suppressing evil could be held unconstitutional as being unreasonable. Where reason for city ordinance which prohibited sale of cigarettes by drug stores, as stated in preamble, was that cigarettes containing narcotics were being sold in city, court assumed that this was fact, and no legislation reasonably aimed at suppressing evil could be held unconstitutional as being unreasonable, arbitrary and capricious in violation of due process clauses of federal and state constitutions. Ex parte Nash, 55 Nev. 92, 26 P.2d 353 (1933), cited, Viale v. Foley, 76 Nev. 149, at 155, 350 P.2d 721 (1960)

Fact that certain acts were lawful before ordinance forbidding such acts was no basis for holding ordinance void. Fact that certain acts of individuals were lawful prior to enactment of city ordinance forbidding such acts was no basis for holding ordinance void or unreasonable as being in violation of U.S. 14th amendment and Nev. Art. 1, § 8. Ex parte Nash, 55 Nev. 92, 26 P.2d 353 (1933), cited, Oueilhe v. Lovell, 93 Nev. 111, at 114, 560 P.2d 1348 (1977)

Due process clause does not limit police power to suppress use of cigarettes. Due process of law clause of constitution does not set limit on police power to suppress use of cigarettes or any article of trade in manner which aids in sale and use of dangerous and habit-forming drugs. Ex parte Nash, 55 Nev. 92, 26 P.2d 353 (1933)

Information may be filed by deputy district attorney. Nev. Art. 1, § 8, which provides that no person shall be tried for infamous crime except upon indictment or upon information filed by district attorney or attorney general, does not preclude filing of information by deputy district attorney, because under NCL § 4848 (cf. NRS 252.070), for long period of time prior to constitutional amendment authorizing criminal trial upon information, prosecuting attorneys were authorized to appoint deputies empowered to perform to same extent as their principals, and literal construction of provision would prevent action by deputy in absence or illness of district attorney. Ex parte Esden, 55 Nev. 169, 28 P.2d 132 (1934)

Statute authorizing county commissioners to issue $500,000 in county bonds for water project and collect tax for their payment did not violate due process. Where, in order to enable county water conservation district to take advantage of offer by United States to advance $1,000,000 for water storage project, statute was enacted authorizing board of county commissioners to issue $500,000 worth of county bonds, deliver them to district, and collect tax for their payment, such statute did not violate due process provisions of U.S. 14th amendment or Nev. Art. 1, § 8, because although property owners outside conservation district, as well as property owners having irrigable lands within district, would be taxed, completion of project would benefit entire county. Washoe County Water Conservation Dist. v. Beemer, 56 Nev. 104, 45 P.2d 779 (1935), cited, City of Las Vegas v. Mack, 87 Nev. 105, at 110, 481 P.2d 396 (1971)

Order permitting plaintiff to occupy premises sought to be condemned during pendency of condemnation proceedings not denial of defendant’s due process. In condemnation proceedings, where summons is served, and defendant is given his day in court at some time before rendition of final judgment, entry, after compliance with procedure prescribed by NCL § 9162 (cf. NRS 37.100), of order permitting plaintiff to occupy premises sought to be condemned during pendency of proceedings does not deprive defendant of his property without due process of law in violation of federal constitution and Nev. Art. 1, § 8. Schrader v. Third Judicial Dist. Court, 58 Nev. 188, 73 P.2d 493 (1937), cited, State ex rel. Department of Highways v. Pinson, 66 Nev. 227, at 238, 207 P.2d 1105 (1949), McLaughlin v. Housing Authority, 68 Nev. 84, at 94, 227 P.2d 206 (1951)

Ordinance making it unlawful to build church in residential district without permission of adjacent property owners violated due process clause. Where city ordinance divided city into business district, industrial district, and residential district, NCL 1929 § 1275 (cf. NRS 268.250), "for the purpose of promoting the health, safety, morals, convenience, property and general welfare of community" and site of proposed church was in residential district, sections of such ordinance making it unlawful to build such nonresidential structure in such district without prior written permission of adjacent property owners bore no substantial relationship to stated purpose of such ordinance and were invalid, as applied to building of such proposed church, because they violated due process clauses of federal and state constitutions (see Nev. Art. 1, § 8). State ex rel. Roman Catholic Bishop v. Hill, 59 Nev. 231, 90 P.2d 217 (1939), cited, State ex rel. Davie v. Coleman, 67 Nev. 636, at 644, 224 P.2d 309 (1950), Forman v. Eagle Thrifty Drugs & Mkts., 89 Nev. 533, at 538, 516 P.2d 1234 (1973)

Privilege against self-incrimination did not bar testimony of physician who properly examined defendant. Testimony of physician relating to his examination of defendant in criminal prosecution was properly admitted where examination was made in privacy of office of physician and involved no humiliation or degradation, or otherwise prejudiced defendant before jury, because privilege afforded by Nev. Art. 1, § 8, providing that no person shall be compelled to be witness against himself, is not simply immunity from compulsion, but is immunity from testimonial compulsion. Skidmore v. State, 59 Nev. 320, 92 P.2d 979 (1939), cited, State v. Fouquette, 67 Nev. 505, at 537, 538, 221 P.2d 404 (1950)

Freedom of speech and liberty of action may be regulated under police power of state. Notwithstanding guaranties of free speech and liberty of action under U.S. 1st and 14th amendments, and Nev. Art. 1, §§ 8 and 9, exercise of these rights is not absolute and may be regulated under police power of state, but neither freedom of speech nor liberty of action may be suppressed under guise of regulation, because they are not subject to exercise of arbitrary power. City of Reno v. Second Judicial Dist. Court, 59 Nev. 416, 95 P.2d 994 (1939)

Appointment of receiver to take control of insolvent company did not violate due process. In action instituted under NCL § 1645 (cf. NRS 78.630), which provides for appointment of receiver to take control of insolvent corporation, where majority of directors instituted action and appointed attorney to represent corporation, appointment of receiver did not constitute deprivation of private property without due process of law under federal constitution or Nev. Art. 1, § 8. International Life Underwriters, Inc. v. Second Judicial Dist. Court, 61 Nev. 42, 113 P.2d 616 (1941)

Levy of tax for purpose of establishment and enlargement of county hospital did not violate due process. Where establishment and enlargement of county hospital would serve valid public purpose, levy of tax pursuant to statute for this purpose did not violate prohibition of Nev. Art. 1, § 8, against taking private property without due process of law. Cauble v. Beemer, 64 Nev. 77, 177 P.2d 677 (1947), cited, State ex rel. Brennan v. Bowman, 89 Nev. 330, at 332, 512 P.2d 1321 (1973)

Due process requirements for issuance of temporary writ of restitution in forcible entry and detainer action. Due process clauses of federal and state constitutions, U.S. 14th amendment and Nev. Art. 1, § 8, require as essentials of due process for issuance of temporary writ of restitution in forcible entry and detainer action notice sufficient to permit defendant to prepare for hearing, orderly, fair and impartial hearing, and if writ is issued, bond from plaintiff fixed in light of facts elicited at hearing and sufficient to save defendant harmless if plaintiff is found not entitled to writ. Farnow v. Eighth Judicial Dist. Court, 64 Nev. 109, 178 P.2d 371 (1947), cited, Sheriff, Nye County v. Davis, 106 Nev. 145, at 149, 787 P.2d 1241 (1990)

Due process violated where attempted application of annexation provisions of city charter was unjust, arbitrary, unreasonable and unnecessary. In quo warranto proceeding to invalidate city ordinance annexing farmlands, where evidence showed city had ample vacant land and had failed to annex platted and built-up area greatly in need of city services, and that only small part of land sought to be annexed was contiguous to city, attempted application of annexation provisions of city charter was arbitrary, unjust, unreasonable, unnecessary and violated constitutional requirements of due process contained in U.S. 14th amendment and Nev. Art. 1, § 8. State ex rel. Bibb v. City of Reno, 64 Nev. 127, 179 P.2d 366 (1947)

Where trial judge assigned case to another judge for determination of degree of guilt and fixing of punishment after defendant’s guilty plea, defendant incurred only one jeopardy. In prosecution for murder, where trial judge assigned case to another judge for determination of degree of guilt and fixing of punishment after plea of guilty, if plea was treated as one of not guilty in first degree, jeopardy began not with entry of plea but with presentation of evidence, and even if hearing for this purpose were trial, which it is not, defendant incurred only one jeopardy, which was before second judge, and there was no violation of constitutional provision against double jeopardy, Nev. Art. 1, § 8. State v. Blackwell, 65 Nev. 405, 198 P.2d 280 (1948)

Jeopardy does not arise until arraignment and plea. In criminal prosecution, jeopardy within meaning of constitutional prohibition of double jeopardy, Nev. Art. 1, § 8, does not arise until issue has been raised by arraignment and plea. State v. Blackwell, 65 Nev. 405, 198 P.2d 280 (1948)

In trial before judge jeopardy begins with presentation of proof. On appeal from conviction of first degree murder, where trial judge had assigned case to another judge for determination of degree of guilt and punishment after plea of guilty, appellate court applied modern rule by weight of authority that although in jury trial jeopardy begins when jury has been sworn to try case and render verdict, in trial before judge jeopardy within meaning of constitutional prohibition of double jeopardy, Nev. Art. 1, § 8, begins when presentation of proofs begins. State v. Blackwell, 65 Nev. 405, 198 P.2d 280 (1948)

Where defendant’s case transferred to second judge for determination of punishment after guilty plea, defendant’s only jeopardy arose at time of presentation of proof. In prosecution for murder, where trial judge assigned case to another judge for determination of degree of guilt and punishment after plea of guilty, only one jeopardy within meaning of constitutional prohibition of double jeopardy, Nev. Art. 1, § 8, was incurred by defendant, and this arose at hearing before second judge when introduction of proofs on part of state was begun. State v. Blackwell, 65 Nev. 405, 198 P.2d 280 (1948)

Where trial judge assigned case to second judge, if assignment was unlawful, second judge had no jurisdiction and no second jeopardy could result from him hearing evidence. In prosecution for murder, where defendant pleaded guilty and trial judge disqualified himself and assigned case to another judge to determine degree of murder and punishment, if assignment was not lawful, second judge had no jurisdiction, and no second jeopardy, within constitutional prohibition of Nev. Art. 1, § 8, could result from his hearing of evidence. State v. Blackwell, 65 Nev. 405, 198 P.2d 280 (1948)

Except upon overruling necessity, double jeopardy results if jury is discharged and second jury called after trial has begun. In criminal prosecution, where trial is begun before jury, jury may not be discharged and second jury called except upon overruling necessity appearing of record, and violation of this rule constitutes second jeopardy within constitutional prohibition, Nev. Art. 1, § 8, and amounts to acquittal. State v. Blackwell, 65 Nev. 405, 198 P.2d 280 (1948)

Rule against double jeopardy applies only against new charge for same crime, not to continuing proceeding on original charge. Under rule against double jeopardy, adopted in Nev. Art. 1, § 8, plea of guilty protects accused from subsequent accusation and trial for same offense, but rule applies only as against new charge for same crime, and not to continuing proceeding on original charge. State v. Blackwell, 65 Nev. 405, 198 P.2d 280 (1948)

Where counsel for owners in action to condemn land for highway agreed to order for immediate possession without having bond posted first, owners deemed to have waived right to bond. Where counsel for owners in action to condemn land for highway purposes agreed to entry in July of order for immediate possession to be effective in September, and did not request that bond for security be first posted, owners were deemed to have waived their right under Nev. Art. 1, § 8, to have either compensation or security for compensation before private property is taken, and such waiver could not be considered oversight where counsel was aware of right to such bond under NCL § 9162 (cf. NRS 37.100) as evidenced by his arguments. Saunders v. State ex rel. Dep’t of Highways, 70 Nev. 480, 273 P.2d 970 (1954)

Right to compensation for taking of private property is personal right of property owner and may be waived. Provision of Nev. Art. 1, § 8, that compensation must be first made or secured before private property may be taken is personal right for benefit of property owner and may be waived. Saunders v. State ex rel. Dep’t of Highways, 70 Nev. 480, 273 P.2d 970 (1954)

Condemnation award that did not take into consideration land value based on capitalization of rentals was not taking without just compensation. Where trial court awarded compensation for land condemned for highway purposes without consideration of land value based upon capitalization of rentals, such award did not amount to taking without just compensation in violation of Nev. Art. 1, § 8, where trial court found that state’s expert witness used sounder reasoning and testified without cross-examination that it would be unwise to use value derived from rental capitalization because current rents were unusually high and would not last. Saunders v. State ex rel. Dep’t of Highways, 70 Nev. 480, 273 P.2d 970 (1954), distinguished, State ex rel. Dep’t of Highways v. Shaddock, 75 Nev. 392, at 399, 344 P.2d 191 (1959)

Statute providing for ex parte certification by state hospital superintendent did not violate due process. In mandamus proceeding to compel district court to proceed to trial of defendant committed to state hospital as insane and later certified sane by hospital superintendent, statute providing for certification ex parte by superintendent did not violate due process clause of Nev. Art. 1, § 8, or U.S. 14th amendment, because adjudication of insanity at time of trial gives no vested right to status of insane person. State ex rel. Sollars v. Eighth Judicial Dist. Court, 71 Nev. 98, 281 P.2d 396 (1955)

Where prison guard was killed by bullet fired at escaping prisoners, charge of murder against prisoner was not denial of due process. In prohibition proceeding to prevent trial of petitioner under NCL § 10499 (cf. NRS 200.030), which defines as murder causing death of any person while attempting to escape from state prison, where information alleged conspiracy to escape, capture of guard and guard’s death from bullet fired at prisoners by another guard, crime charged was murder, and there was no denial of due process under U.S. 14th amendment or Nev. Art. 1, § 8, by reason of ambiguity of information. Hinrichs v. First Judicial Dist. Court, 71 Nev. 168, 283 P.2d 614 (1955)

Where only validity of annexation by city was attacked, issue of rights of owners to compensation for taking was not before court. In quo warranto proceeding, where owners of certain lots in need of sewerage petitioned for annexation by city, and owners of other property proposed by city to be included but laid out in large lots and not in need of sewerage protested annexation, and it was admitted that one purpose of annexation was to subject latter properties to assessment for sewer to former, possible remedies or lack of them if constitutional rights of owners of latter to compensation for taking of private property, to due process, and to equal protection of laws, Nev. Art. 1, § 8, and U.S. 14th amendment, were not before court where only validity of annexation was attacked. State ex rel. Mathews v. City of Reno, 71 Nev. 208, 285 P.2d 551 (1955)

Statute required state to make full payment of allegedly excessive condemnation award as condition of remaining in possession pending appeal. On appeal by state from condemnation award alleged to be excessive, where state had taken possession of property, sense and spirit of requirement of Nev. Art. 1, § 8, that just compensation be first made or secured before private property is taken for public use favored construction that NRS 37.170, requiring payment into court of full amount of judgment as condition of taking or remaining in possession pending appeal, applied to appeal by either party. State ex rel. Dep’t of Highways v. Second Judicial Dist. Court, 75 Nev. 200, 337 P.2d 274 (1959)

Evidence of market value as well as rental value may be considered by jury in condemnation proceeding. Under Nev. Art. 1, § 8, providing that private property shall not be taken for public use without just compensation, and NRS 37.110, requiring that jury ascertain value of condemned property, evidence of market value is properly received in condemnation proceeding, but does not preclude court of jury from considering other elements such as rental value. It is proper to capitalize rental value and to receive expert testimony as to capital required to produce equal income, and it is province of jury to decide proper rate of interest to use if they choose to consider capitalized value. State ex rel. Dep’t of Highways v. Shaddock, 75 Nev. 392, 344 P.2d 391 (1959), cited, State ex rel. Dep’t of Highways v. Campbell, 80 Nev. 23, at 28, 388 P.2d 733 (1964), Eikelberger v. State ex rel. Dep’t of Highways, 83 Nev. 306, at 308, 429 P.2d 555 (1967), State ex rel. Dep’t of Highways v. Linnecke, 86 Nev. 257, at 262, 468 P.2d 8 (1970), Tacchino v. State ex rel. Dep’t of Highways, 89 Nev. 150, at 152, 508 P.2d 1212 (1973), Skyland Water Co. v. Tahoe-Douglas Dist., 95 Nev. 289, at 291, 593 P.2d 1066 (1979)

Where assault charge was separate offense, defendant acquitted of robbery charge stemming from same incident was not placed in double jeopardy by trial on assault charge. Where defendant had been tried and acquitted of charge of robbery by force and violence, it was error to grant his motion to dismiss information charging assault with intent to kill on ground that he had been once in jeopardy under Nev. Art. 1, § 8. Evidence in robbery trial that defendant shot victim, demanded and received her purse, and beat her about head with unloaded gun indicated that, although beating charged to constitute second offense took place at same time and place as shooting and robbery, beating, which was administered to victim after all elements of crime of robbery were complete, was separate offense for commission of which defendant had not been once in jeopardy. State v. Feinzilber, 76 Nev. 142, 350 P.2d 399 (1960), cited, State ex rel. Fogliani v. Carter, 79 Nev. 146, at 149, 379 P.2d 945 (1963), Carmody v. Seventh Judicial Dist. Court, 81 Nev. 83, at 85, 398 P.2d 706 (1965), Lovell v. State, 92 Nev. 128, at 131, 546 P.2d 1301 (1976)

Pledge of faith and credit of state of Nevada as compensation in eminent domain proceeding was not violation of due process. In eminent domain proceeding, order for immediate occupancy of premises supported by pledge of faith and credit of State of Nevada for payment of damages in lieu of bond did not violate Nev. Art. 1, § 8, which provides that private property shall not be taken for public use without just compensation having first been made or secured. Heidenreich v. Second Judicial Dist. Court, 76 Nev. 249, 352 P.2d 249 (1960)

Court order for immediate state possession of condemned land upon pledge of faith and credit of the state was not violation of due process. In proceeding for condemnation of land for highway use, where court entered order for immediate possession of premises without bond upon pledge of faith and credit of state, such order did not violate Nev. Art. 1, § 8, relating to taking of land without compensation, and there was no merit to defendant’s contention that pledge was not such security as is contemplated by constitution in that there was no adequate provision for enforcing pledge under NRS 37.180, which provides that if plaintiff has been put in possession under NRS 37.100-37.170 defendant is entitled to all damages arising from such occupancy, because amount of damages could be determined by court in condemnation action, and award could be enforced against state controller by mandamus. Heidenreich v. Second Judicial Dist. Court, 76 Nev. 249, 352 P.2d 249 (1960)

Discharge of jury for failure to reach verdict was not bar to future trial. In criminal prosecution, where trial court properly exercised its discretion in discharging jury for failure to reach verdict, other trial court judge erred in granting defendant’s motion for order dismissing information. Discharge of jury did not constitute legal bar to future trial by reason of Nev. Art. 1, § 8, which prohibits double jeopardy for same offense. State v. Eisentrager, 76 Nev. 437, 357 P.2d 306 (1960), distinguished, Hylton v. Eighth Judicial Dist. Court, 103 Nev. 418, at 423, 743 P.2d 622 (1987)

Statute prohibiting signs at service stations not larger than 12 by 12 inches was violation of due process. Statute which prohibited placement of price signs at service stations other than sign on pump not larger than 12 by 12 inches in size, and which was not for aesthetic purposes, where larger signs would have been more preventive of misrepresentation and fraud, which appeared as prime purpose of statute, bore no reasonable relationship to objective sought, and was invalid as deprivation of property right of advertising one’s business without due process of law in violation of U.S. 14th amendment and Nev. Art. 1, § 8. State v. Redman Petroleum Corp., 77 Nev. 163, 360 P.2d 842 (1961), cited, In re Martin, 88 Nev. 666, at 669, 504 P.2d 14 (1972)

Newspaper notice of acceptance and time for commencement of highway construction contracts was not violation of due process. NRS 408.925 provides that publication in newspaper of notice of final acceptance of highway construction contracts commences running of time within which claims must be filed for labor or materials furnished, and such notice is not insufficient as notice reasonably calculated to inform interested parties, nor is it unconstitutional as being violative of due process clause of federal constitution or state constitution, Nev. Art. 1, § 8. Zalk-Josephs Co. v. Wells Cargo, Inc., 77 Nev. 441, 366 P.2d 339 (1961)

Condemnation proceeding under Urban Renewal Law not violation of due process. Nev. Art. 1, §§ 1 and 8, which guarantee inalienable right to possess property, and prohibit taking of private property for public use without compensation, are not violated by condemnation proceeding under Urban Renewal Law, NRS 279.010 et seq., on ground that such law contemplates taking of private property from one individual and its transfer to another for private as distinguished from public purposes, because power of eminent domain is simply means of achieving public purpose of redevelopment, and possessory use by public is not prerequisite to exercise of power of eminent domain. Urban Renewal Agency v. Iacometti, 79 Nev. 113, 379 P.2d 466 (1963)

Giving mandatory effect to N.R.C.P. 41(e) requiring dismissal of action not brought to trial in 5 years was not denial of due process. In mandamus proceeding to compel trial court to dismiss civil action under N.R.C.P. 41(e), which requires dismissal of action not brought to trial within 5 years after filing, giving mandatory effect to such rule did not violate due process clause of U.S. 14th amendment and Nev. Art. 1, § 8, by denying plaintiff in principal action right to preserve and enforce right of action, because constitutional right is always subject to reasonable statutory limitations. Thran v. First Judicial Dist. Court, 79 Nev. 176, 380 P.2d 297 (1963)

Where regulation of commodity is required for public health or welfare, police power of state may be used. Notwithstanding constitutional guarantees of property rights and due process contained in Nev. Art. 1, §§ 1 and 8, police power of state may be used to regulate sale of commodity affected with public use or whose regulation is required for public health or welfare. Zale-Las Vegas, Inc. v. Bulova Watch Co., 80 Nev. 483, 396 P.2d 683 (1964)

Right to dispose of property in any legitimate manner and at price obtained by fair barter. Nev. Art. 1, § 1, which provides that all men have right to acquire, possess and protect property, and Nev. Art. 1, § 8, which provides that no person shall be deprived of life, liberty or property without due process of law, in combination establish right to dispose of property in any legitimate manner at such price as can be obtained by fair barter. Zale-Las Vegas, Inc. v. Bulova Watch Co., 80 Nev. 483, 396 P.2d 683 (1964)

Statute prohibiting sale of commodity below resale price established by owner of trade-mark held unconstitutional as applied to seller who had not signed agreement to maintain price. Former NRS ch. 599, which prohibited sale of any commodity below minimum resale price established by owner of trade-mark, brand or trade name covering that commodity, was unconstitutional as applied to seller who had not signed any agreement to maintain resale price, because it violated Nev. Art. 1, § 1, guaranteeing rights in property, Nev. Art. 1, § 8, providing due process of law, and Nev. Art. 1, § 20, which provides that enumeration of rights does not impair or deny others retained by the people, and exceeded legislative authority conferred by Nev. Art. 4, § 1. Zale-Las Vegas, Inc. v. Bulova Watch Co., 80 Nev. 483, 396 P.2d 683 (1964)

Required employment of firemen on diesel engines violated due process. Application of full train crew law, former provision of NRS 705.390, to require employment of firemen on diesel engines where they have no duties to perform and so do not contribute to safety would violate due process clause, Nev. Art. 1, § 8, and constitute unreasonable exercise of police power. Southern Pac. Co. v. Dickerson, 80 Nev. 572, 397 P.2d 187 (1964)

Failure to testify. In prosecution for murder, subjective argument by prosecutor and indirect reference to failure of defendant to testify (see Nev. Art. 1, § 8) did not constitute ground for reversal where no objection was made in trial court. Bean v. State, 81 Nev. 25, 398 P.2d 251 (1965), cited, Fernandez v. State, 81 Nev. 276, at 279, 402 P.2d 38 (1965), Washington v. State, 94 Nev. 181, at 183, 576 P.2d 1126 (1978), Parker v. State, 109 Nev. 383, at 391, 849 P.2d 1062 (1993), see also Riker v. State, 111 Nev. 1316, 905 P.2d 706 (1995)

Voluntary confession. In prosecution for murder, where defendant was taken into custody but no inducement offered, trickery practiced, or intimidation or improper influence used to obtain his confession, failure to advise him of right to remain silent was not sufficient alone to violate privilege against self-incrimination guaranteed by U.S. 5th amendment (see also Nev. Art. 1, § 8), because it is but one factor in determining voluntary nature of confession which was otherwise clearly established. Bean v. State, 81 Nev. 25, 398 P.2d 251 (1965), cited, White v. State, 82 Nev. 304, at 307, 417 P.2d 592 (1966), Goldstein v. State, 89 Nev. 527, at 529, 516 P.2d 111 (1973), distinguished, Guyette v. State, 84 Nev. 160, at 165, 438 P.2d 244 (1968)

Where defendant did not testify, jury instruction on privilege against self-incrimination was adequate. In prosecution for burglary, where defendant did not testify, instruction to jury that "In accordance with a right guaranteed by the constitution of the State of Nevada, no person can be compelled, in a criminal action, to be a witness against himself" was proper and adequate under Nev. Art. 1, § 8, and former NRS 175.175 (cf. NRS 175.181). No further instruction that lack of testimony would not supply failure of proof was required. McNeeley v. State, 81 Nev. 663, 409 P.2d 135 (1965), cited, Theriault v. State, 92 Nev. 185, at 192, 547 P.2d 668 (1976), McKenna v. State, 96 Nev. 811, at 814, 618 P.2d 348 (1980), Jones v. State, 101 Nev. 573, at 576, 707 P.2d 1128 (1985)

Where juror had personal knowledge of case and judge discharged jury before verdict and declared mistrial, writ of prohibition to prevent second trial of defendant was granted on ground of double jeopardy. Where juror, after extensive deliberation by jury but before verdict, revealed he had personal information about case, and judge denied defendant opportunity to examine juror pursuant to former NRS 175.310 (cf. NRS 175.121) to determine whether bias could be overcome, declared mistrial, discharged jury and set date for new trial, writ of prohibition was granted to prevent second trial on ground that new trial would put defendant twice in jeopardy in violation of Nev. Art. 1, § 8 because manifest necessity is required to discharge jury before verdict and there was nothing in record to show that necessity requirement had been met. Wheeler v. Second Judicial Dist. Court, 82 Nev. 225, 415 P.2d 63 (1966), cited, Sheriff, Washoe County v. Robertson, 90 Nev. 365, at 366, 526 P.2d 1178 (1974), Hylton v. Eighth Judicial Dist. Court, 103 Nev. 418, at 422, 743 P.2d 622 (1987), see also Taylor v. State, 109 Nev. 849, 858 P.2d 843 (1993), dissenting opinion.

Service of process at last known address. NRS 14.070, which provides for service of process upon director of department of motor vehicles after accident in state, does not violate federal requirement of due process (see also Nev. Art. 1, § 8), because NRS 14.070 requires plaintiff to send notice of service and copy of process by registered mail to defendant at best address available to plaintiff and procedure establishes reasonable probability that defendant will receive actual notice of pending action. Mitchell v. Second Judicial Dist. Court, 82 Nev. 377, 418 P.2d 994 (1966)

Representing oneself with assistance of appointed counsel. Where defendants charged with armed robbery twice requested court during pretrial proceedings to dismiss appointed counsel and each time, after hearing, request was granted but second appointed counsel was ordered to attend trial and assist defendants if so permitted, defendants were not denied representation during trial because they had clear right under Nev. Art. 1, § 8, to defend themselves unless unusual circumstances such as incompetence or coerced waiver appeared. Hatten v. State, 83 Nev. 531, 435 P.2d 495 (1967), cited, Miller v. State, 86 Nev. 503, at 506, 471 P.2d 213 (1970), Allan v. State, 91 Nev. 650, at 652, 541 P.2d 656 (1975), see also Wayne v. State, 100 Nev. 582, 691 P.2d 414 (1984)

Eminent domain: Restrictive covenant. Where school district condemned property for school purposes and such property was subject to restrictive covenant prohibiting land use other than for residential purposes, right of beneficiary of such restrictive covenant was interest in land in nature of easement for which compensation pursuant to Nev. Art. 1, § 8, must be paid. Meredith v. Washoe County School Dist., 84 Nev. 15, 435 P.2d 750 (1968), cited, Probasco v. City of Reno, 85 Nev. 563, at 564, 459 P.2d 772 (1969), Dickstein v. Williams, 93 Nev. 605, at 610, 571 P.2d 1169 (1977), distinguished, Gladstone v. Gregory, 95 Nev. 474, at 481, 596 P.2d 491 (1979)

Registration of convicted persons not violation of section. Statutes which require registration of convicted persons, NRS 207.080 et seq., were not violative of Nev. Art. 1, § 8, or U.S. 5th amendment privilege against self-incrimination on ground that registration compelled convict, under threat of criminal penalties, to disclose information which would tend to incriminate him under NRS 207.010, habitual criminal statute, because proceeding under NRS 207.010 does not charge separate substantive crime but is averment of fact affecting punishment and information required to be disclosed did not per se incriminate registrant and was already publicly recorded and always available. Atteberry v. State, 84 Nev. 213, 438 P.2d 789 (1968), cited, Hollander v. Warden, 86 Nev. 369, at 373, 468 P.2d 990 (1970), Baymon v. State, 94 Nev. 370, at 371, 580 P.2d 943 (1978), see also Wynn v. State, 96 Nev. 673, 615 P.2d 946 (1980)

Statute which failed to give credit for prior prison time served under void conviction violated due process. Where defendant had already served time under prior, void conviction for rape, failure to credit such time against present sentence could not be justified under former NRS 176.410 (cf. NRS 176.335), which provided that term of imprisonment should begin on date of sentence of prisoner, because, as applied to defendant, statute denied due process protected by U.S. 14th amendment and Nev. Art. 1, § 8, in that no correction would have been afforded for imprisonment for infirm conviction. Summers v. Warden, 84 Nev. 326, 440 P.2d 388 (1968), cited, Anglin v. State, 90 Nev. 287, at 292, 525 P.2d 34 (1974)

Mineral rights sought to be condemned should be valued and paid for separately. Where eminent domain proceedings were initiated under former NRS ch. 516 to acquire title to land for mining purposes, ownership or minerals was property right protected by Nev. Art. 1, § 8, and U.S. 5th amendment, and where such right was interest sought to be condemned it should have been valued and paid for separately. State ex rel. Milchem Inc. v. Third Judicial District Court, 84 Nev. 541, 445 P.2d 148 (1968)

Prosecution for related but not lesser included offense. Where defendant, who discharged pistol in restroom of casino, was first convicted of violating city ordinance which forbade (1) carrying firearm in casino and (2) carrying loaded firearm in city without permit, and subsequently convicted under NRS 202.360 as ex-felon in possession of firearm, second conviction was not precluded by former jeopardy under Nev. Art. 1, § 8, because violation of NRS 202.360 could occur without violation of ordinance. (See NRS 178.391.) In re DuBois, 84 Nev. 562, 445 P.2d 354 (1968)

Classification of firefighters as against all other fire department personnel for purpose of pay raise was reasonable. In appeal from declaratory judgment, where initiative measure increased salaries of "firefighters" and declaratory judgment defined firefighter as "one who subjects himself to the risks, dangers and hazards inherent in the defense of persons and property by his active engagement in the fighting of fires," contention of defendant that classification of firefighters as against all other fire department personnel and all other classified employees was unreasonable and in violation of Nev. Art. 1, § 8, was without merit because definition rests upon reasonable grounds and substantial distinctions. City of Las Vegas v. Ackerman, 85 Nev. 493, 457 P.2d 525 (1969)

Easement of light, air and view. In action for damages resulting from breach of alleged implied negative easement of light, air and view by city’s exercise of power of eminent domain on abutting property, recovery under Nev. Art. 1, § 8, was denied because Nevada has expressly repudiated doctrine of implied negative easement. For eminent domain purposes, compensation may be had only for loss of rights under positive easement or express restrictive covenant, both of which are recognized and appear on public records as notice of existence of property right. Not every depreciation in value of property not taken is compensable. Probasco v. City of Reno, 85 Nev. 563, 459 P.2d 772 (1969), cited, Sloat v. Turner, 93 Nev. 263, at 269, 563 P.2d 86 (1977), Schwartz v. State ex rel. Dep’t of Transp., 111 Nev. 998, at 1003, 900 P.2d 939 (1995)

Right to counsel not violated where defendant elected to represent himself. Where criminal defendant had knowingly and intelligently elected to represent himself rather than continue to be represented by retained counsel, constitutional right to counsel was not violated because Nev. Art. 1, § 8, granting right to defend in person and with counsel, does not give right to simultaneous representation by counsel and in person. If defendant elects to have counsel he has no right to represent himself; and if aid of counsel is intelligently declined, he cannot later complain of lack of assistance of counsel. Miller v. State, 86 Nev. 503, 471 P.2d 213 (1970), cited, Layton v. State, 91 Nev. 363, at 366, 536 P.2d 85 (1975), Wheby v. Warden, 95 Nev. 567, at 569, 598 P.2d 1152 (1979)

Power of attorney general to initiate prosecution. Where attorney general, independently of district attorney, sought to initiate criminal prosecution by information pursuant to Nev. Art. 1, § 8, filed with leave of court pursuant to NRS 173.035, writs of prohibition and habeas corpus were granted by supreme court, because statute did not empower attorney general to initiate prosecution by information independent of district attorney and Nev. Art. 5, §§ 19 and 22 by themselves conferred no powers. (See also NRS 228.120.) Ryan v. Eighth Judicial Dist. Court, 88 Nev. 638, 503 P.2d 842 (1972), cited, State ex rel. List v. County of Douglas, 90 Nev. 272, at 275, 524 P.2d 1271 (1974), Cranford v. Smart, 92 Nev. 89, at 91, 545 P.2d 1162 (1976), Attorney Gen. v. Eighth Judicial Dist. Court, 108 Nev. 1073, at 1075, 844 P.2d 124 (1992), Whitehead v. Commission on Judicial Discipline, 110 Nev. 128, at 152, 869 P.2d 795 (1994), distinguished, Junior v. State, 91 Nev. 439, at 441, 537 P.2d 1204 (1975), Webb v. State, 91 Nev. 469, at 470, 538 P.2d 164 (1975)

Ordinance which prohibited gasoline delivery to underground tanks in certain area of city was discriminatory violation of due process. Ordinance which prohibited delivery of gasoline to underground storage tanks in limited area of city from vehicle with capacity in excess of 2,000 gallons, but did not apply to aboveground tanks or underground tanks in other areas, was unconstitutional denial of due process and equal protection in violation of U.S. 14th amendment and Nev. Art. 1, § 8, because prohibition did not bear reasonable relation to declared objective of public safety, and was invidiously discriminatory in application. In re Martin, 88 Nev. 666, 504 P.2d 14 (1972)

Statute which permitted issuance of bonds to finance purchase of pollution control equipment leased to private corporation was constitutional. County Economic Development Revenue Bond Law (see NRS 244A.669 et seq.), which permitted issuance of county revenue bonds to finance county purchase of air pollution control equipment leased to private corporation (see NRS 244A.695), did not violate Nev. Art. 1, § 8, prohibiting expenditure of public funds for private purposes, nor prohibitions of Nev. Art. 8, §§ 9 and 10, relative to loans of public credit, because air pollution control was public purpose and any pecuniary liability of county or charge against its credit or taxing powers was precluded. State ex rel. Brennan v. Bowman, 89 Nev. 330, 512 P.2d 1321 (1973), cited, AGO 95-06 (5-10-1995)

Where prosecution witness added to information after impaneling of jury and caused prejudicial bias by juror, not double jeopardy to declare mistrial and try defendant again. In criminal prosecution, where name of additional prosecution witness was endorsed on information after jury had been selected and impaneled, and juror immediately advised judge that she was so biased against witness that she would be prejudiced in favor of defendant, trial court properly declared mistrial, and on new trial, defendant was not twice put in jeopardy within meaning of U.S. 5th amendment or Nev. Art. 1, § 8. Williamson v. Sheriff, Clark County, 89 Nev. 507, 515 P.2d 1028 (1973), cited, State v. Connery, 100 Nev. 256, at 258, 679 P.2d 1266 (1984)

Property to be condemned must be valued in light of its highest and best use. In eminent domain proceeding it was reversible error to base determination of highest and best use solely on existing zoning when it was conceded that property was subject to rezoning to higher and better use, because property to be condemned must be valued in light of its highest and best use in order to provide just compensation required by Nev. Art. 1, § 8. Sorenson v. State ex rel. Dep’t of Highways, 92 Nev. 445, 552 P.2d 487 (1976), cited, Skyland Water Co. v. Tahoe-Douglas Dist., 95 Nev. 289, at 291, 593 P.2d 1066 (1979), County of Clark v. Alper, 100 Nev. 382, at 387, 685 P.2d 943 (1984), AGO 92-9 (10-6-1992)

Statute limiting compensation of court-appointed attorneys was not a taking without due process nor denial of equal protection. Provisions of former NRS 7.260 (cf. NRS 7.125) limiting compensation of court-appointed attorneys, did not constitute taking of attorney’s services for public use without just compensation, denial of equal protection of laws, nor taking of property without due process in violation of Nev. Art. 1, § 8, and U.S. 5th and 14th amendments because professional obligation to respond to call of court was incident of privilege to practice law. Daines v. Markoff, 92 Nev. 582, 555 P.2d 490 (1976), distinguished, Lueck v. State, 99 Nev. 717, at 719, 669 P.2d 719 (1983)

Gaming was matter reserved to states within meaning of U.S. 10th amendment. In proceedings before gaming commission on application for state gaming license federally protected constitutional rights were not involved because gaming was matter reserved to states within meaning of U.S. 10th amendment. Former reference to constitutional provisions in NRS 463.315 (cf. NRS 463.317) was applicable only to concept of procedural due process embraced within Nev. Art. 1, § 8. State v. Rosenthal, 93 Nev. 36, 559 P.2d 830 (1977), appeal dismissed, 98 S. Ct. 32 (1977), cited, State v. Glusman, 98 Nev. 412, at 427, 651 P.2d 639 (1982), Productions & Leasing v. Hotel Conquistador, Inc., 573 F. Supp. 717 (D. Nev. 1982), Thomas v. Bible, 694 F. Supp. 750, at 760 (D. Nev. 1988)

Where prosecutor learned of inadequacies of state’s case commenced by complaint and obtained indictment for same offense, it was error to dismiss indictment. Where criminal prosecution had been commenced by complaint but prosecutor, after learning of inadequacies in state’s case from statements made in open court by defense counsel, obtained indictment for same offense, order quashing and dismissing indictment was error because procedure was authorized under Nev. Art. 1, § 8, and NRS 173.015 et seq., and prosecutor’s conduct did not constitute abuse of power vested in prosecution. State v. Maes, 93 Nev. 49, 559 P.2d 1184 (1977), cited, State v. Havas, 93 Nev. 52, at 52, 559 P.2d 1185 (1977), Hyler v. Sheriff, Clark County, 93 Nev. 561, at 563, 571 P.2d 114 (1977)

State not liable for deprivation of access where landowners did not have perfected right of access at time of condemnation. In action by owners of landlocked property seeking damages from state for deprivation of access, state was not liable under provisions of Nev. Art. 1, § 8, and NRS 37.110 where landowners did not have perfected right of access, prescriptive or otherwise, across access property at time it was condemned by state for highway purposes. Provisions of NRS 37.110 as to damages in absence of taking applied only when actual physical damage has been inflicted on property by construction of improvement or if some property right directly connected to ownership or use of property is substantially impaired or extinguished. Sloat v. Turner, 93 Nev. 263, 563 P.2d 86 (1977), cited, State, Dep’t of Transp. v. Las Vegas Bldg. Materials Inc. 104 Nev. 479, at 485, 761 P.2d 843 (1988), Schwartz v. State ex rel. Dep’t of Transp., 111 Nev. 998, at 1003, 900 P.2d 939 (1995)

Use of perjured testimony. On appeal from denial of motion for new trial where defendant had been convicted of attempted murder in jury trial and subsequent court-ordered perjury investigation led to statements by court that "the testimony against the defendant was fraught with perjury" and by deputy prosecutor that "it appears that about 90 percent of the witnesses lied, including defense witnesses," conviction was set aside even though there was no suggestion that prosecutor knowingly used false testimony. Truth-seeking function of trial was corrupted by perjured testimony, some of which concerned critical issue of whether shooting was accidental or intentional, and defendant was denied due process of law as required by Nev. Art. 1, § 8. Riley v. State, 93 Nev. 461, 567 P.2d 475 (1977), cited, Callier v. Warden, 111 Nev. 976, at 989, 901 P.2d 619 (1995), distinguished, King v. State, 95 Nev. 497, at 499, 596 P.2d 501 (1979)

Failure of trial attorney to preserve his client’s statutory right to appeal did not result in deprivation of assistance of effective counsel. Where appellant was convicted of larceny, sentence of 8 years in prison was suspended and he was placed on probation, and it was clear that appellant never requested advice on his right to appeal, was content with outcome of initial sentencing proceedings, did not indicate desire to appeal until more than 1 year following entry of judgment and granting of probation, failure of trial attorney to preserve his client’s statutory right to appeal did not result in deprivation of assistance of effective counsel (see U.S. 6th amendment and Nev. Art. 1, § 8). Downs v. Warden, 93 Nev. 475, 568 P.2d 575 (1977), cited, Lozada v. State, 110 Nev. 349, at 354, 871 P.2d 944 (1994)

Statutory claim filing requirements not applicable to claim for damages in inverse condemnation action brought against county. Claim filing requirements in former provisions of NRS 244.245 and NRS 244.250 were not applicable to claim for damages in inverse condemnation action brought by property owner against county because state could not constitutionally impose conditions on right to sue on federally created and protected right that private property shall not be taken for public use without just compensation (see U.S. 5th amendment and Nev. Art. 1, § 8). Alper v. Clark County, 93 Nev. 569, 571 P.2d 810 (1977), cited, Metropolitan Water Dist. v. State, 99 Nev. 506, at 509, 665 P.2d 262 (1983), Frank Briscoe Co. v. County of Clark, 643 F. Supp. 93, at 101 (D. Nev. 1986)

Defendant denied due process where prosecution’s case depended on testimony of accomplice witness who was induced to testify in particular fashion in exchange for plea bargain. Defendant in prosecution for murder was denied due process of law within meaning of U.S. and Nevada constitutions (see Nev. Art. 1, § 8) where prosecution’s case depended substantially upon testimony of alleged accomplice and prosecutor, in plea bargaining with accomplice, agreed to reduction of charge against him in exchange for his testifying at defendant’s trial, and then used bargain as "fee" to induce witness’ cooperation in giving desired testimony implicating defendant by withholding acceptance of plea to reduced charge until after such testimony had been given. Under these circumstances, where accomplice witness was in effect under compulsion to testify in particular fashion in order to receive benefits of plea bargain, testimony was tainted and defendant was deprived of fundamental right to fair trial. Franklin v. State, 94 Nev. 220, 577 P.2d 860 (1978), cited, Bushnell v. State, 95 Nev. 570, at 576, 599 P.2d 1038 (1979), dissenting opinion, LaPena v. State, 98 Nev. 135, at 136, 643 P.2d 244 (1982), Crew v. State, 100 Nev. 38, at 45, 675 P.2d 986 (1984), Bailey v. State, 100 Nev. 562, at 564, 688 P.2d 320 (1984), State Bar of Nevada v. Claiborne, 104 Nev. 115, at 174, 756 P.2d 464 (1988), distinguished, Farmer v. State, 95 Nev. 849, at 858, 603 P.2d 700 (1979), Globensky v. State, 96 Nev. 113, at 118, 605 P.2d 215 (1980), Burns v. State, 96 Nev. 802, at 805, 618 P.2d 881 (1980), Almond v. State, 105 Nev. 904, at 909, 785 P.2d 217 (1989), Bennett v. State, 106 Nev. 135, at 139, 787 P.2d 797 (1990), Athey v. State, 106 Nev. 520, at 525, 797 P.2d 956 (1990)

Overruled, Sheriff, Humboldt County v. Acuna, 107 Nev. 664, 819 P.2d 197 (1991)

County’s action in vacating street was not taking of plaintiff’s property right where plaintiff had no vested interest in street and there was no substantial impairment of plaintiff’s land. In inverse condemnation action, where county vacated portion of street which did not abut plaintiff’s land but abutted land adjoining plaintiff’s, plaintiff had no vested interest in street which was taken without just compensation in violation of Nev. Art. 1, § 8. Even assuming plaintiff owned abutting property, county’s action in vacating street would not be taking of plaintiff’s property right without just compensation because substantial impairment to plaintiff’s land would not result in view of fact that plaintiff would have free and convenient access to next intersecting streets. Lied v. County of Clark, 94 Nev. 275, 579 P.2d 171 (1978)

City, as political subdivision of state, could not raise issue of taking of its property as against the state, its creator. In action brought by City of Reno to challenge constitutionality of Washoe County Airport Authority Act (see ch. 474, Stats. 1977) designed to transfer ownership and administration of airport from city to airport authority, city, as political subdivision of state, could not raise issues of taking of its property without due process of law or just compensation under Nev. Art. 1, § 8, or impairment of its contracts under Nev. Art. 1, § 15, as against state, its creator. City of Reno v. County of Washoe, 94 Nev. 327, 580 P.2d 460 (1978), cited, City of Boulder City v. State, 106 Nev. 390, at 392, 793 P.2d 845 (1990)

Prosecution of defendant initiated by indictment rather than by information did not violate his right to due process and equal protection. Fact that prosecution of defendant was initiated by indictment rather than by information, thus denying him adversary preliminary hearing, did not violate his right to due process and equal protection under U.S. Constitution. Under Nev. Art. 1, § 8, and NRS 173.015, prosecutions may be initiated either by indictment or information. Existence of statutory and other procedural safeguards applicable to grand jury proceedings, coupled with availability of extraordinary relief in district court and supreme court, are adequate to protect accused from discriminatory treatment and unfounded accusations. Seim v. State, 95 Nev. 89, 590 P.2d 1152 (1979), cited, Gibson v. State, 96 Nev. 48, at 50, 604 P.2d 814 (1980)

Rights when representing oneself. Where criminal defendant requested, and court ordered, that he be allowed to represent himself, as permitted by Nev. Art. 1, § 8, with aid of public defender in preparation of all legal documents and in obtaining pertinent legal books, and public defender did supply him with law books but not with all books he requested, failure to provide all books requested (1) did not constitute denial of due process, and (2) did not make defendant’s waiver of right to counsel ineffective. Defendant may not impose conditions upon waiver of right to counsel. Hollis v. State, 95 Nev. 664, 601 P.2d 62 (1979), cited, Wilkie v. State, 98 Nev. 192, at 194, 644 P.2d 508 (1982)

Test for determining whether prosecutorial comment constitutes prohibited direct reference to defendant’s failure to testify. Established test for determining if comment of prosecutor constitutes prohibited direct reference to defendant’s failure to testify is whether language was manifestly intended or was of such character that jury would naturally and necessarily take it to be comment on failure of accused to respond. (See Nev. Art. 1, § 8.) Deutscher v. State, 95 Nev. 669, 601 P.2d 407 (1979), cited, Flanagan v. State, 104 Nev. 105, at 111, 754 P.2d 836 (1988), Barron v. State, 105 Nev. 767, at 779, 783 P.2d 444 (1989), see also Sheriff, Clark County v. Walsh, 107 Nev. 842, 822 P.2d 109 (1991), Harkness v. State, 107 Nev. 800, 820 P.2d 759 (1991), McNelton v. State, 111 Nev. 900, 900 P.2d 934 (1995)

Ordinance prohibiting prostitution in county after it had been permitted for several years was not taking without due process. County ordinance prohibiting prostitution in county after it had been permitted for several years was not arbitrary or capricious and did not constitute deprivation of property of brothel operators without due process of law or taking of property for public use without compensation under U.S. Constitution and Nev. Art. 1, § 8, where ordinance was valid exercise of police power. Kuban v. McGimsey, 96 Nev. 105, 605 P.2d 623 (1980), cited, Princess Sea Indus., Inc. v. State, 97 Nev. 534, at 545, 635 P.2d 281 (1981), concurring opinion.

Statute which permits redevelopment of area by city or county and permits taking of property only if necessary for redevelopment of whole area is not violation of due process. Provisions of NRS 279.410, which permits area to be redeveloped by city or county to include land or buildings not detrimental to public health, safety or welfare, did not violate prohibitions of U.S. 5th amendment and Nev. Art. 1, § 8, against taking of property without due process of law, because NRS 279.410 permits taking of such property only if found necessary for effective redevelopment of whole area and thus is rationally related to legitimate exercise of police power. City of Sparks v. Best, 96 Nev. 134, 605 P.2d 638 (1980)

Mere planning of project did not constitute taking for which inverse condemnation action would lie. Where property owner brought action in inverse condemnation against state and county alleging that precondemnation activities in connection with plans for expressway across plaintiff’s property constituted unconstitutional taking of property without just compensation under Nev. Art. 1, § 8, and U.S. 5th amendment, complaint was properly dismissed for failure to state claim for which relief could be granted. Activities cited by plaintiff (including announcement of plans, entry for survey and appraisal purposes and refusal of building permits for portion of property) were not invasion or appropriation of property directly or specially affecting plaintiff to its injury, and mere planning of project was insufficient to constitute taking for which inverse condemnation action would lie. Sproul Homes v. State ex rel. Dep’t of Highways, 96 Nev. 441, 611 P.2d 620 (1980)

Where judge failed to ascertain whether defendants were aware of possibility of conflict of interest in one public defender representing both defendants, convictions reversed. On appeal from convictions for robbery where one public defender had been appointed to represent both defendants and trial judge had failed to ascertain whether each defendant was aware of possibility of conflict of interest although he reasonably should have known that actual conflict of interest existed, convictions were reversed because defendants were deprived of their constitutional right to conflict-free assistance of counsel. To safeguard rights of defendants under Nev. Art. 1, § 8, trial court should address each defendant personally, explain dangers of joint representation and inquire as to facts which might reveal conflicts. If actual or potential conflicts exist, each defendant must voluntarily, knowingly and understandingly decide on joint representation. Harvey v. State, 96 Nev. 850, 619 P.2d 1214 (1980), cited, Harvey v. State, 97 Nev. 477, at 478, 634 P.2d 1199 (1981), Mannon v. State, 98 Nev. 224, at 226, 645 P.2d 433 (1982), Hayes v. State, 106 Nev. 543, at 557, 797 P.2d 962 (1990), Clark v. State, 108 Nev. 324, at 326, 831 P.2d 1374 (1992)

Definition of "escort" in county ordinance allowed arbitrary enforcement and was void for vagueness. County ordinance which defined "escort" or "social companion" as any person who, for salary, fee, commission, hire, reward or profit makes himself available to public for purpose of accompanying other persons for companionship, and which prohibited working as escort or social companion and conducting any business wherein "for payment, direct or indirect social companions or ‘escorts’ may be obtained," contained ambiguities which allowed arbitrary and discriminatory enforcement and permitted imposition of criminal sanctions without adequate prior warning and thus was void for vagueness under due process clause of U.S. 14th amendment and Nev. Art. 1, § 8. Eaves v. Board of Clark County Comm’rs, 96 Nev. 921, 620 P.2d 1248 (1980), cited, Republic Entertainment, Inc. v. Clark County Liquor & Gaming Licensing Bd., 99 Nev. 811, at 817, 672 P.2d 634 (1983), IDK, Inc. v. County of Clark, 599 F. Supp. 1402, at 1405 (D. Nev. 1984), Edwards v. City of Reno, 103 Nev. 347, at 350, 742 P.2d 486 (1987), Whitney v. State, Dep’t of Employment Security, 105 Nev. 810, at 813, 783 P.2d 459 (1989), State v. Father Richard, 108 Nev. 626, at 629, 836 P.2d 622 (1992), Cunningham v. State, 109 Nev. 569, at 570, 855 P.2d 125 (1993), City of Las Vegas v. 1017 S. Main Corp., 110 Nev. 1227, at 1231, 885 P.2d 552 (1994)

Defendant denied right to counsel where prosecution called defendant’s attorney to testify as rebuttal witness concerning availability of defendant’s wife to testify. In prosecution for kidnaping, sexual assault and burglary where defendant claimed alibi, implying that his wife would support alibi if she testified, and stated he did not know wife’s whereabouts or whether she was available to testify but that his attorney had been in contact with her, it was reversible error for prosecutor to call defendant’s attorney to testify as rebuttal witness concerning availability of wife to testify. Defendant was denied his right to counsel under U.S. 6th amendment and Nev. Art. 1, § 8, during time his attorney was on stand as prosecution witness. Kaeser v. State, 96 Nev. 955, 620 P.2d 872 (1980)

Due process is not rigid concept but calls for procedural protection as particular situation demands. Due process is not rigid concept. Due process is flexible and calls for such procedural protections as particular situation demands. Watson v. Housing Authority, 97 Nev. 240, 627 P.2d 405 (1981), cited, Molnar v. State, Bd. of Medical Examiners, 105 Nev. 213, at 216, 773 P.2d 726 (1989)

Prosecutor’s indirect reference to defendant’s failure to testify not unconstitutional. In murder trial where defense counsel asked one of defendants on direct examination what nontestifying defendant had said on morning of killing and prosecutor, in offering hearsay objection, stated that if second defendant wanted to talk he could take stand and do so, prosecutor’s comment was constitutionally permissible because language was not of such character that jury would naturally and necessarily take it to be comment on failure of accused to testify. (See Nev. Art. 1, § 8.) Barnes v. State, 97 Nev. 354, 630 P.2d 1221 (1981), cited, Barron v. State, 105 Nev. 767, at 779, 783 P.2d 444 (1989)

Test for determining whether conviction of defendant for separate offenses violates prohibition against double jeopardy. In prosecution for robbery and battery, where defendant displayed knife and beat proprietor with claw hammer while companion took things of value from shop, conviction and sentencing, in addition to robbery with use of deadly weapon, for both (1) battery with intent to commit robbery under NRS 200.400 and (2) battery with deadly weapon under NRS 200.481 constituted double punishment, hence double jeopardy, because there was no separate element for each of three offenses not required for one of others. In determining whether conviction of defendant for separate offenses violates constitutional prohibition against double jeopardy (see Nev. Art. 1, § 8), test to be applied is whether each offense requires proof of fact which other does not. Litteral v. State, 97 Nev. 503, 634 P.2d 1226 (1981), cited, McKenna v. State, 98 Nev. 323, at 324, 647 P.2d 865 (1982), Givens v. State, 99 Nev. 50, at 56, 657 P.2d 97 (1983), Owens v. State, 100 Nev. 286, at 288, 680 P.2d 593 (1984), Moore v. State, 100 Nev. 698, at 699, 692 P.2d 1278 (1984), Meador v. State, 101 Nev. 765, at 769, 711 P.2d 852 (1985), Wright v. State, 106 Nev. 647, at 649, 799 P.2d 548 (1990), distinguished, Colley v. State, 98 Nev. 14, at 18, 639 P.2d 530 (1982), Bludsworth v. State, 98 Nev. 289, at 293, 646 P.2d 558 (1982), Talancon v. State, 102 Nev. 294, at 301, 721 P.2d 764 (1986)

Claim of ineffective assistance of counsel is to be pursued through post-conviction relief. Where defendant appealed judgment of conviction on ground that he had been denied effective assistance of counsel (see Nev. Art. 1, § 8), citing number of factors which could lead to conclusion that court-appointed counsel did not provide effective representation, supreme court concluded that post-conviction relief (see former NRS 177.315) is appropriate vehicle for presenting claim, because trial counsel might be able to explain his performance if evidentiary hearing is held for purpose of inquiry into matter. Gibbons v. State, 97 Nev. 520, 634 P.2d 1214 (1981), cited, Bolden v. State, 99 Nev. 181, at 183, 659 P.2d 886 (1983), Lewis v. State, 100 Nev. 456, at 461, 686 P.2d 219 (1984), Daniels v. State, 100 Nev. 579, at 580, 688 P.2d 315 (1984), Dearing v. State, 100 Nev. 590, at 593, 691 P.2d 419 (1984), Ewell v. State, 105 Nev. 897, at 900, 785 P.2d 1028 (1989), Wallach v. State, 106 Nev. 470, at 474, 796 P.2d 224 (1990), Franklin v. State, 110 Nev. 750, at 752, 877 P.2d 1058 (1994), Corbin v. State, 111 Nev. 378, at 381, 892 P.2d 580 (1995), Feazell v. State, 111 Nev. 1446, at 1449, 906 P.2d 727 (1995), McKague v. Warden, 112 Nev. 159, at 164, 912 P.2d 255 (1996), see also Albitre v. State, 103 Nev. 281, 738 P.2d 1307 (1987), distinguished, Barnes v. State, 98 Nev. 367, at 368, 649 P.2d 1359 (1982), Mazzan v. State, 100 Nev. 74, at 80, 675 P.2d 409 (1984), Jones v. State, 110 Nev. 730, at 737, 877 P.2d 1052 (1994)

Timely demand to represent oneself. District court erred in denying as untimely criminal defendant’s unequivocal request for self-representation under Nev. Art. 1, § 8, where motion was made immediately before voir dire on first day of trial and there was no showing that it was made merely to obstruct or delay orderly process of criminal justice system. Request for self-representation made before swearing of jury is timely as matter of law and may not be denied absent showing of dilatory intent or some other ground for denial. Baker v. State, 97 Nev. 634, 637 P.2d 1217 (1981), cited, Young v. State, 98 Nev. 467, at 469, 653 P.2d 153 (1982)

Overruled, Lyons v. State, 106 Nev. 438, at 445, 796 P.2d 210 (1990)

Improper for prosecutor to suggest defendant had burden to produce proof by explaining absence of witness. In criminal prosecution where defendant did not call husband as witness, it was improper for prosecutor to suggest repeatedly to jury that it was defendant’s burden to produce proof by explaining absence of witness. Implication of prosecutor’s comments was clearly inaccurate. (See Nev. Art. 1, § 8.) Emerson v. State, 98 Nev. 158, 643 P.2d 1212 (1982), cited, Barron v. State, 105 Nev. 767, at 778, 783 P.2d 444 (1989), see also Ross v. State, 106 Nev. 924, 803 P.2d 1104 (1990), Whitney v. State, 112 Nev. 499, 915 P.2d 881 (1996), Washington v. State, 112 Nev. 1054, 921 P.2d 1253 (1996), Sonner v. State, 112 Nev. 1328, 930 P.2d 707 (1996)

Error to refuse to give cautionary instruction on failure of defendant to testify. It was error for court to refuse to give following cautionary jury instruction requested by criminal defendant: "It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. You must not draw any inference from the fact that he does not testify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way." (See Nev. Art. 1, § 8.) Error was harmless, however, where competent evidence of defendant’s guilt was overwhelming. Franklin v. State, 98 Nev. 266, 646 P.2d 543 (1982), cited, Dyer v. State, 99 Nev. 422, at 423, 663 P.2d 699 (1983), Jones v. State, 101 Nev. 573, at 577, 707 P.2d 1128 (1985), Barron v. State, 105 Nev. 767, at 778, 783 P.2d 444 (1989), Tillema v. State, 112 Nev. 266, at 271, 914 P.2d 605 (1996)

Double jeopardy. Where mistrial was granted on motion of defendant because of prosecutor’s references to inadmissible statements of defendant and district court properly determined that conduct of prosecutor did not constitute overreaching or harassment intended to goad defendant into moving for mistrial, double jeopardy clause of constitution (see Nev. Art. 1, § 8) did not bar retrial. Melchor-Gloria v. State, 99 Nev. 174, 660 P.2d 109 (1983), cited, Collier v. State, 103 Nev. 563, at 566, 747 P.2d 225 (1987), Gaitor v. State, 106 Nev. 785, at 788, 801 P.2d 1372 (1990), Taylor v. State, 109 Nev. 849, at 861, 858 P.2d 843 (1993), dissenting opinion, Benson v. State, 111 Nev. 692, at 695, 895 P.2d 1323 (1995), distinguished, Hylton v. Eighth Judicial Dist. Court, 103 Nev. 418, at 425, 743 P.2d 622 (1987)

Conviction reversed for prosecutorial misconduct. In prosecution for sexual assault (see NRS 200.366), where prosecutor (1) made disparaging remarks concerning defense counsel’s ability to carry out functions of attorney, (2) made improper statements concerning his personal belief in defendant’s guilt and improperly attempted to mislead jury on issue of presumption of innocence, (3) in closing argument, referred to fact that costs of medical witnesses who testified for defendant had been paid at county’s expense by persons such as jurors, and (4) argued that jurors should place themselves in position of victim or member of victim’s family although he was admonished by trial court that it was improper so to argue, defendant was deprived of his right to fair trial (see Nev. Art. 1, § 8), his conviction was reversed and case was remanded for new trial on merits, and sanctions were imposed against prosecutor for engaging in improper and inappropriate conduct. McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984), cited, Jacobs v. State, 101 Nev. 356, at 359, 705 P.2d 130 (1985), Collier v. State, 101 Nev. 473, at 481, 705 P.2d 1126 (1985), Sipsas v. State, 102 Nev. 119, at 125, 716 P.2d 231 (1986), Cox v. State, 102 Nev. 253, at 257, 721 P.2d 358 (1986), Aesoph v. State, 102 Nev. 316, at 322, 721 P.2d 379 (1986), Williams v. State, 103 Nev. 106, at 112, 734 P.2d 700 (1987), Yates v. State, 103 Nev. 200, at 203, 734 P.2d 1252 (1987), Albitre v. State, 103 Nev. 281, at 284, 738 P.2d 1307 (1987), Shaw v. State, 104 Nev. 100, at 105, 753 P.2d 888 (1988), Flanagan v. State, 104 Nev. 105, at 109, 754 P.2d 836 (1988), Murray v. State, 105 Nev. 579, at 584, 781 P.2d 288 (1989), Barron v. State, 105 Nev. 767, at 780, 783 P.2d 444 (1989), Shannon v. State, 105 Nev. 782, at 789, 783 P.2d 942 (1989), Neal v. State, 106 Nev. 23, at 25, 787 P.2d 764 (1990), Howard v. State, 106 Nev. 713, at 718, 800 P.2d 175 (1990), Riley v. State, 107 Nev. 205, at 213, 808 P.2d 551 (1991), Earl v. State, 111 Nev. 1304, at 1311, 904 P.2d 1029 (1995), Witter v. State, 112 Nev. 908, at 928, 921 P.2d 886 (1996), see also Ross v. State, 106 Nev. 924, 803 P.2d 1104 (1990), Guy v. State, 108 Nev. 770, 839 P.2d 578 (1992), Quillen v. State, 112 Nev. 1369, 929 P.2d 893 (1996), distinguished, Jones v. State, 101 Nev. 573, at 577, 707 P.2d 1128 (1985)

Conviction reversed for prosecutorial misconduct. In prosecution for robbery (see NRS 200.380), where prosecutor (1) disregarded rulings of trial court and attempted to elicit information from defendant concerning his prior convictions for felonies, (2) indicated that jury could consider defendant’s prior convictions in determining whether he was guilty of present offense although trial court had admonished prosecutor that such remarks would be improper, (3) made additional improper attacks on defendant’s character, and (4) commented to jury that defendant had not testified at pretrial proceedings and asked why he would remain silent until trial if his alibi was true, defendant was deprived of his right to fair trial (see Nev. Art. 1, § 8), his conviction was reversed and case was remanded for new trial on merits, and sanctions were imposed against prosecutor for engaging in improper and inappropriate conduct. McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984), cited, Sipsas v. State, 102 Nev. 119, at 125, 716 P.2d 231 (1986), Aesoph v. State, 102 Nev. 316, at 321, 721 P.2d 379 (1986), McGee v. State, 102 Nev. 458, at 461, 725 P.2d 1215 (1986), Williams v. State, 103 Nev. 106, at 112, 734 P.2d 700 (1987), Murray v. State, 105 Nev. 579, at 584, 781 P.2d 288 (1989), Neal v. State, 106 Nev. 23, at 25, 787 P.2d 764 (1990), see also McCraney v. State, 110 Nev. 250, 871 P.2d 922 (1994), Coleman v. State, 111 Nev. 657, 895 P.2d 653 (1995), concurring opinion, Palmer v. State, 112 Nev. 763, 920 P.2d 112 (1996), distinguished, Jones v. State, 101 Nev. 573, at 577, 707 P.2d 1128 (1985)

Mistrial caused by attempted suicide of critical witness for prosecution after jury was impaneled did not bar reprosecution of defendant. In criminal prosecution, where prosecutor was fully prepared to present his evidence at trial but critical witness for prosecution attempted suicide after jury was impaneled and was unavailable to testify, there was manifest necessity for mistrial because witness’ absence would have effectively prevented state from presenting its case and record did not suggest that prosecutor was in any way responsible for unavailability of witness. (See NRS 174.085.) Therefore, reprosecution of defendant was not barred by former jeopardy under U.S. 5th amendment or Nev. Art. 1, § 8. State v. Connery, 100 Nev. 256, 679 P.2d 1266 (1984), distinguished, Hylton v. Eighth Judicial Dist. Court, 103 Nev. 418, at 424, 743 P.2d 622 (1987)

Refusal of city to pay architect because he failed to present demand within time required by statute was not denial of due process or equal protection. Refusal of city to pay architect pursuant to their contract because architect failed to present demand within time required by NRS 268.020, was proper because statute does not violate provisions for due process and equal protection of laws of Nevada constitution (see Nev. Art. 1, § 8 and Nev. Art. 4, § 21). As legislature has never expressed intent that governmental and nongovernmental promisors be on equal footing, persons who voluntarily contract with governmental entity assume burden of complying with its procedures for satisfying claims. L-M Architects, Inc. v. City of Sparks, 100 Nev. 334, 683 P.2d 11 (1984), cited, Charlie Brown Constr. Co. v. City of Boulder City, 106 Nev. 497, at 500, 797 P.2d 946 (1990), distinguished, Frank Briscoe Co. v. County of Clark, 643 F. Supp. 93, at 101 (D. Nev. 1986)

Standard for evaluating claim of ineffective assistance of counsel. In evaluating claim of ineffective assistance of counsel (see Nev. Art. 1, § 8), court applied "reasonably effective assistance" standard set out in Strickland v. Washington, 466 U.S. 668 (1984), which provides that defendant must show (1) that counsel made errors so serious that counsel was not functioning as "counsel" guaranteed defendant by U.S. 6th amendment, and (2) that counsel’s deficient performance prejudiced defense to extent that defendant was deprived of fair trial. Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cited, Point v. State, 102 Nev. 143, at 150, 717 P.2d 38 (1986), Ybarra v. State, 103 Nev. 8, at 10, 731 P.2d 353 (1987), Williams v. State, 103 Nev. 227, at 229, 737 P.2d 508 (1987), Mazzan v. State, 105 Nev. 745, at 747, 783 P.2d 430 (1989), Bejarano v. State, 106 Nev. 840, at 842, 801 P.2d 1388 (1990), Sechrest v. State, 108 Nev. 158, at 160, 826 P.2d 564 (1992), Clark v. State, 108 Nev. 324, at 326, 831 P.2d 1374 (1992), Haberstroh v. State, 109 Nev. 22, at 27, 846 P.2d 289 (1993), State v. Love, 109 Nev. 1136, at 1138, 865 P.2d 322 (1993), Lozada v. State, 110 Nev. 349, at 353, 871 P.2d 944 (1994), Pertgen v. State, 110 Nev. 554, at 558, 875 P.2d 361 (1994), Riley v. State, 110 Nev. 638, at 646, 878 P.2d 272 (1994), Brown v. State, 110 Nev. 846, at 848, 877 P.2d 1071 (1994), Marshall v. State, 110 Nev. 1328, at 1333, 885 P.2d 603 (1994), McKague v. Warden, 112 Nev. 159, at 163, 912 P.2d 255 (1996), Valerio v. State, 112 Nev. 383, at 389, 915 P.2d 874 (1996), Doleman v. State, 112 Nev. 843, at 847, 921 P.2d 278 (1996), Kirksey v. State, 112 Nev. 980, at 987, 923 P.2d 1102 (1996), see also Ford v. State, 105 Nev. 850, 784 P.2d 951 (1989), Davis v. State, 107 Nev. 600, 817 P.2d 1169 (1991), Dawson v. State, 108 Nev. 112, 825 P.2d 593 (1992), Jones v. State, 110 Nev. 730, 877 P.2d 1052 (1994), Bennett v. State, 111 Nev. 1099, 901 P.2d 676 (1995), McKenna v. McDaniel, 65 F.3d 1483 (9th Cir. 1995), Homick v. State, 112 Nev. 304, 913 P.2d 1280 (1996)

Punishment for same conduct as double jeopardy. In criminal prosecution, defendant’s convictions for cheating at gambling in violation of NRS 465.083 and for altering outcome of gambling game in violation of NRS 465.070 constituted double punishment, hence double jeopardy (see Nev. Art. 1, § 8), because NRS 465.083 is lesser included offense of NRS 465.070. Defendant’s conviction for cheating at gambling was, therefore, reversed on appeal. Moore v. State, 100 Nev. 698, 692 P.2d 1278 (1984), distinguished, Talancon v. State, 102 Nev. 294, at 301, 721 P.2d 764 (1986)

Defendant’s conviction reversed where police obtained incriminating testimony by placing informant in defendant’s jail cell. In prosecution for robbery, where police deliberately placed informant in defendant’s cell while he was incarcerated on other charges in order to gain incriminating testimony concerning defendant’s involvement in robbery, admission of informant’s testimony at trial violated defendant’s right against self-incrimination as guaranteed by Nev. Art. 1, § 8 and U.S. 5th amendment, because informant was acting as agent of police and had not advised defendant of his right to remain silent before speaking with him. Therefore, defendant’s conviction was reversed on appeal and case was remanded for new trial because it could not be said that jury would have found defendant guilty beyond reasonable doubt without informant’s testimony. Holyfield v. State, 101 Nev. 793, 711 P.2d 834 (1985), cited, Thompson v. State, 105 Nev. 151, at 154, 771 P.2d 592 (1989), Simmons v. State, 112 Nev. 91, at 99, 912 P.2d 217 (1996)

Where conflict of interest between codefendants represented by same attorney resulted in mistrial, retrial of defendant not barred by prohibition against double jeopardy. In prosecution for embezzlement, where codefendants were represented by same attorney and trial judge declared mistrial on ground that, as one defendant had standing to object to admission of certain evidence as hearsay while other defendant did not, there was apparent conflict of interest, retrial of defendant was not barred by prohibition against double jeopardy contained in Nev. Art. l, § 8, because there was manifest necessity for declaring mistrial. Carter v. State, 102 Nev. 164, 717 P.2d 1111 (1986), cited, Benson v. State, 111 Nev. 692, at 695, 895 P.2d 1323 (1995), distinguished, Hylton v. Eighth Judicial Dist. Court, 103 Nev. 418, at 422, 743 P.2d 622 (1987)

Factors to determine requirements of procedural due process. To determine requirements of procedural due process (see Nev. Art. 1, § 8) in any particular case, court must balance (1) private interest affected by official action, (2) risk of erroneous deprivation of that private interest through procedures used and probable value, if any, of additional or substitute procedural safeguards, and (3) government’s interest, including function involved and fiscal and administrative burdens that additional or substitute procedural requirements would entail. State, Dep’t of Motor Vehicles & Public Safety v. Vezeris, 102 Nev. 232, 720 P.2d 1208 (1986), cited, Minton v. Board of Medical Examiners, 110 Nev. 1060, at 1082, 881 P.2d 1339 (1994)

Due process requires that state adhere to its plea bargains. In criminal prosecution, where state, in return for negotiated plea of guilty to one count of grand larceny, agreed to dismiss two additional charges pending against defendant and send him to medical facility before sentencing for evaluation and treatment for alcoholism, but trial court sentenced defendant to prison for 8 years before evaluation and treatment was obtained, sentence was vacated on appeal and case was remanded with instructions that plea bargain be specifically enforced, because due process (see Nev. Art. 1, § 8) requires that bargain be kept when plea of guilty is entered and specific enforcement of plea bargain was most effective method of repairing harm caused by violation without prejudicing either party or curtailing normal sentencing discretion of trial judge. Van Buskirk v. State, 102 Nev. 241, 720 P.2d 1215 (1986), cited, Citti v. State, 107 Nev. 89, at 91, 807 P.2d 724 (1991), Stahl v. State, 112 Nev. 857, at 863, 920 P.2d 1006 (1996), dissenting opinion, distinguished, State v. Crockett, 110 Nev. 838, at 845, 877 P.2d 1077 (1994)

Separate sentences for crimes requiring proof of same elements is constitutionally permissible if legislature intended separate punishments. If two statutory offenses require proof of same elements, double jeopardy will not be violated by separate sentences for those two offenses following single trial if it appears that legislature intended separate punishments. Talancon v. State, 102 Nev. 294, 721 P.2d 764 (1986), cited, Athey v. State, 106 Nev. 520, at 523, 797 P.2d 956 (1990), see also Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990)

Conviction reversed for prosecutorial misconduct. In prosecution for murder of first degree (see NRS 200.030), defendant’s right against self-incrimination and his right to fair and impartial trial (see Nev. Art. 1, § 8) were violated where prosecutor repeatedly elicited testimony of police officers that defendant chose to exercise his constitutional right to remain silent and commented on defendant’s election to remain silent in order to impeach defendant’s credibility. Defendant’s conviction was reversed on appeal because (1) evidence presented against defendant was circumstantial, (2) defendant’s credibility was crucial to his defense, and (3) absent prosecutor’s comments, it was not clear that jury would have reached same verdict. Aesoph v. State, 102 Nev. 316, 721 P.2d 379 (1986), cited, Mahar v. State, 102 Nev. 488, at 490, 728 P.2d 439 (1986), Shaw v. State, 104 Nev. 100, at 105, 753 P.2d 888 (1988), Murray v. State, 105 Nev. 579, at 584, 781 P.2d 288 (1989), Shannon v. State, 105 Nev. 782, at 789, 783 P.2d 942 (1989), Neal v. State, 106 Nev. 23, at 25, 787 P.2d 764 (1990), Ross v. State, 106 Nev. 924, at 928, 803 P.2d 1104 (1990), Libby v. State, 109 Nev. 905, at 918, 859 P.2d 1050 (1993), McCraney v. State, 110 Nev. 250, at 256, 871 P.2d 922 (1994), see also Coleman v. State, 111 Nev. 657, 895 P.2d 653 (1995), Washington v. State, 112 Nev. 1054, 921 P.2d 1253 (1996)

Accurate measure of just compensation to be paid utility for property condemned. In proceeding for condemnation of property owned by utility operating unprofitable system for distribution of water which was in disrepair, accurate measure of just compensation to be paid to utility as required by Nev. Art. 1, § 8 was amount between (1) value of plant and equipment remaining after useful life of that plant and equipment (salvage value), and (2) amount equal to cost that would be incurred if general improvement district built plant identical to that condemned (reproduction cost) less decline in value of system because of expiration of useful life of plant and equipment (physical depreciation) and decline in value of system because of inadequacy and obsolescence of system at time of condemnation (functional depreciation). In addition, utility was entitled to fair market value of real property taken. Stagecoach Utils., Inc. v. Stagecoach Gen. Improvement Dist., 102 Nev. 363, 724 P.2d 205 (1986)

Criminal defendant was denied effective assistance of counsel. In prosecution for sexual assault and lewdness with child under 14 years of age, defendant was denied his right to effective assistance of counsel guaranteed by U.S. 6th amendment (see Nev. Art. 1, § 8) where counsel (1) did not investigate background of complaining witnesses or attempt to interview alleged victim, (2) did not request that alleged victim be given physical examination or undergo psychological examination to determine whether she was being truthful, (3) did not present any witnesses in support of defendant’s character, even though defendant provided him with list of three possible witnesses, (4) did not interview defendant’s employer or coworkers, (5) failed to prepare for presentation of defense witnesses, and (6) at sentencing hearing, failed to present any evidence or witnesses in support of lenient sentence. Warner v. State, 102 Nev. 635, 729 P.2d 1359 (1986), cited, Sanborn v. State, 107 Nev. 399, at 405, 812 P.2d 1279 (1991), Lickey v. State, 108 Nev. 191, at 194, 827 P.2d 824 (1992), Buffalo v. State, 111 Nev. 1139, at 1149, 901 P.2d 647 (1995)

Conviction reversed where confession was involuntary. Where defendant was interrogated by sheriff for 5 hours, not allowed any food or drink other than coffee, not allowed to speak to his fiancée, and was told by sheriff that if he failed to cooperate sheriff would tell prosecutor and see that defendant went to prison, and where sheriff continued to suggest to defendant how crime had occurred until he had secured written confession, defendant’s confession was product of police coercion and therefore involuntary and its admission into evidence was violation of due process (see Nev. Art. 1, § 8). Defendant’s conviction of lewdness with child under 14 years of age in violation of NRS 201.230 was reversed and case was remanded for new trial. Passama v. State, 103 Nev. 212, 735 P.2d 321 (1987), cited, Rowbottom v. State, 105 Nev. 472, at 482, 779 P.2d 934 (1989), Thompson v. State, 108 Nev. 749, at 753, 838 P.2d 452 (1992), Kirksey v. State, 112 Nev. 980, at 990, 923 P.2d 1102 (1996), distinguished, Brust v. State, 108 Nev. 872, at 874, 839 P.2d 1300 (1992), Geary v. State, 110 Nev. 261, at 264, 871 P.2d 927 (1994)

Voluntariness of confession is determined by effect of totality of circumstances on will of defendant. Criminal defendant is deprived of due process of law (see Nev. Art. 1, § 8) if his conviction is based, in whole or in part, upon involuntary confession, and even if there is ample evidence aside from confession to support conviction. In order to be voluntary, confession of criminal must be product of rational intellect and free will. To determine voluntariness of confession, court must consider effect of totality of circumstances on will of defendant. Question in each case is whether defendant’s will was overborne when he confessed. In making its determination, court will consider (1) age of accused, (2) his lack of education or his low intelligence, (3) lack of advice of constitutional rights, (4) length of detention, (5) repeated and prolonged nature of questioning, and (6) use of physical punishment such as deprivation of food or sleep. Passama v. State, 103 Nev. 212, 735 P.2d 321 (1987), cited, Brust v. State, 108 Nev. 872, at 874, 839 P.2d 1300 (1992), Geary v. State, 110 Nev. 261, at 264, 871 P.2d 927 (1994), Lane v. State, 110 Nev. 1156, at 1164, 881 P.2d 1358 (1994), Alward v. State, 112 Nev. 141, at 155, 912 P.2d 243 (1996), Sheriff, Washoe County v. Bessey, 112 Nev. 322, at 324, 914 P.2d 618 (1996), Sonner v. State, 112 Nev. 1328, at 1337, 930 P.2d 707 (1996)

Mistrial bars further prosecution if no manifest necessity or if results from prosecutor’s inexcusable neglect. Where, on motion of prosecution, defendant’s trial was declared mistrial, but there was no manifest necessity for such declaration and it resulted from inexcusable neglect on part of prosecutor, district court was without jurisdiction to order new trial because new trial would violate defendant’s constitutional right against double jeopardy pursuant to U.S. 5th amendment and Nev. Art. 1, § 8. Supreme court issued writ of prohibition pursuant to NRS 34.320. Hylton v. Eighth Judicial Dist. Court, 103 Nev. 418, 743 P.2d 622 (1987), cited, Benson v. State, 111 Nev. 692, at 697, 895 P.2d 1323 (1995)

Manifest necessity to declare mistrial must be evident from record. Where witness did not claim attorney-client privilege but trial judge assumed he would do so and declared mistrial, circumstances constituting manifest necessity to declare mistrial did not appear in record and therefore, Nev. Art. 1, § 8 barred further prosecution of defendant. Hylton v. Eighth Judicial Dist. Court, 103 Nev. 418, 743 P.2d 622 (1987)

Double jeopardy clause does not bar retrial when conviction reversed on appeal. Because of prosecutor’s misconduct and unreasonable time limitations on closing arguments, court set aside petitioner’s death sentence and remanded case for new sentencing hearing. Petitioner was sentenced to death, again, at second penalty hearing. Petitioner argued that double jeopardy clause barred state from seeking death sentence at second penalty hearing. Double jeopardy clause does not bar retrial when conviction is reversed on appeal. Court affirmed sentence of death. Collier v. State, 103 Nev. 563, 747 P.2d 225 (1987)

Reprosecution barred where mistrial granted because of prosecutor’s misconduct or judicial overreaching intended to incite defendant into moving for mistrial. Because of prosecutor’s misconduct and unreasonable time limitations on closing arguments, court set aside petitioner’s death sentence and remanded case for new sentencing hearing. Petitioner was sentenced to death, again, at second penalty hearing. Petitioner argued that double jeopardy clause barred state from seeking death sentence at second penalty hearing. When defendant is granted mistrial because of prosecutor’s overreaching or judicial overreaching and where governmental conduct in question was intended to goad defendant into moving for mistrial, reprosecution will be barred. In case at bar, although prosecutor’s remarks at first penalty hearing were egregious, court did not state in its prior opinion that there was intention to goad defense into moving for mistrial. Facts did not suggest that prosecution was disposed to seeking mistrial for its advantage, and finding of court could not be said to be clearly erroneous. Court affirmed sentence of death. Collier v. State, 103 Nev. 563, 747 P.2d 225 (1987)

Reprosecution barred where motion for mistrial denied and judgment subsequently reversed because of prosecutor’s misconduct. Because of prosecutor’s misconduct and unreasonable time limitations on closing arguments, court set aside petitioner’s death sentence and remanded case for new sentencing hearing. Petitioner was sentenced to death, again, at this second penalty hearing. Petitioner now argues that double jeopardy clause barred state from seeking death sentence at second penalty hearing. When motion for mistrial is denied and judgment is subsequently reversed because of prosecutor’s misconduct which precipitated motion for mistrial, reprosecution will be barred. Collier v. State, 103 Nev. 563, 747 P.2d 225 (1987)

Defendant cannot be retried on issue after verdict of acquittal. Because of prosecutor’s misconduct and unreasonable time limitations on closing arguments, court set aside petitioner’s death sentence and remanded case for new sentencing hearing. Petitioner was sentenced to death, again, at this second penalty hearing. Petitioner now argues that double jeopardy clause barred state from seeking death sentence at second penalty hearing. Defendant cannot be retried on issue after verdict of acquittal. However, petitioner was not acquitted at his first penalty hearing as jury sentenced him to death. Court affirmed sentence of death. Collier v. State, 103 Nev. 563, 747 P.2d 225 (1987)

No due process deprivation where certain factors show appellant received constitutionally required notice. On appeal from order of district court denying appellant’s motion to set aside and to stay enforcement of foreign default judgment, court held that where (1) appellant was aware of need to obtain foreign counsel to respond adequately to complaint, (2) appellant presented no reasonable excuse for failure to do so, and (3) appellant received adequate notice and warning of pendency of action against him and that respondents would be entitled to enter default judgment against him if timely and legally sufficient response was not forthcoming, appellant received all notice that was constitutionally required. Court concluded that that record revealed no support for appellant’s assertion that he was deprived of due process of law by entry of default judgment. Rosenstein v. Steele, 103 Nev. 571, 747 P.2d 230 (1987)

Prejudgment interest award within ambit of mandate of statute may be insufficient to meet constitutional requirements of just compensation. On cross-appeal arising out of condemnation proceedings, district court’s prejudgment interest award was challenged. In condemnation proceeding, court’s award of prejudgment interest may be properly within ambit of mandate of NRS 37.175, but may be insufficient to meet constitutional requirements of just compensation. Court held that since cross-appellant’s parcels were vacant, unimproved and held for investment purposes at time of taking, award of prejudgment interest should have included interest from date of taking. City of Sparks v. Armb, 103 Nev. 619, 748 P.2d 7 (1987)

Prosecutor’s comments on postarrest silence not misconduct where defendant fled jurisdiction. Defendant was tried and convicted of murder and attempted murder. Defendant spoke on telephone to investigating officer and was made aware he was under suspicion of being involved. He agreed to talk to officers, but instead he fled jurisdiction. Where evidence of flight is properly before jury, jury knows that defendant had not talked to police or prosecutor. Therefore, prosecutor did not perpetrate misconduct by commenting upon defendant’s postarrest silence when he asked defendant if it would have been easier if he had talked to police on day of shooting rather than 5 years later. Maresca v. State, 103 Nev. 669, 748 P.2d 3 (1987)

Right to remain silent is personal right. Defendant was tried and convicted of murder and attempted murder. Defendant spoke on telephone to investigating officer and was made aware he was under suspicion of being involved. He agreed to talk to officers, but instead he fled jurisdiction. Prosecutor asked defendant’s girlfriend if she provided any information to police regarding defendant’s whereabouts. Questions to defendant’s girlfriend could not violate defendant’s U.S. 5th amendment right to remain silent because such rights are personal. Maresca v. State, 103 Nev. 669, 748 P.2d 3 (1987)

No constitutional right to be free of prison garb and shackles at penalty hearing for murder of first degree. Decision concerning necessity for physically restraining defendant at penalty hearing for defendant convicted of murder of first degree (see NRS 175.552) is left to sound discretion of trial court and sentence imposed will not be overturned absent showing of abuse of that discretion. Trial judge must balance state interest in preserving safety in courtroom against interest in preventing prejudice to defendant. While right of defendant to be free from shackles during guilt phase of trial is designed to protect presumption of innocence, during penalty phase there is no longer presumption of innocence and, therefore, constitutional guarantee provided by U.S. 14th amendment (see Nev. Art. 1, § 8) to be free of prison garb and shackles no longer exists. Duckett v. State, 104 Nev. 6, 752 P.2d 752 (1988), cited, Powell v. State, 108 Nev. 700, at 712, 838 P.2d 921 (1992), Canape v. State, 109 Nev. 864, at 872, 859 P.2d 1023 (1993), but see Duckett v. Godinez, 67 F.3d 734 (9th Cir. 1995)

Denial of discovery not violative of due process under circumstances. Claim by applicant for gaming license that constitutional guarantees of due process (see Nev. Art. 1, § 8) required that he be allowed discovery of gaming control board’s investigative report was properly rejected by court as lacking ripeness where it was based on conjectural premise that applicant may be denied license in future. Resnick v. Nevada Gaming Comm’n, 104 Nev. 60, 752 P.2d 229 (1988)

Defense witness testifying in chains and prison attire does not violate criminal defendant’s due process rights. Although it is violative of constitutional due process rights (see Nev. Art. 1, § 8) of criminal defendant for state to compel him to stand trial in prison clothing, defense witnesses are not cloaked in accused’s presumption of innocence and, therefore, there is no constitutional right accorded to defendant to have his witness testify in civilian clothes instead of chains and prison attire. White v. State, 105 Nev. 121, 771 P.2d 152 (1989)

Incriminating information elicited from accused by fellow inmate acting on own initiative and not pursuant to specific agreement with police may be received in evidence against accused without violating his constitutional rights. Where informant, while sharing cell with accused, elicits incriminating information from him while acting on own initiative and not pursuant to specific agreement with police, incriminating statements made by accused may be received in evidence against him without violating his federal or state constitutional rights (see Nev. Art. 1, § 8). Inmate is not immune from consequences of his voluntary loose talk to another inmate who does not represent police presence. Thompson v. State, 105 Nev. 151, 771 P.2d 592 (1989), cited, Jimenez v. State, 105 Nev. 337, at 341, 775 P.2d 694 (1989), Emmons v. State, 107 Nev. 53, at 58, 807 P.2d 718 (1991), Simmons v. State, 112 Nev. 91, at 99, 912 P.2d 217 (1996)

Where credibility of witness is at issue, it is denial of due process if administrative agency making fact determination does not have benefit of impressions of person hearing testimony of witness. On appeal, appellant alleged hearing procedure denied him due process where respondent made decision that appellant had attempted to renew his medical license by fraud and misrepresentation and by false, misleading, inaccurate and incomplete statement. At hearing, appellant testified that he inadvertently checked wrong box on application. No board members were present when appellant testified at hearing conducted by hearing officer. Court held that as general rule, decision-making administrative body need not hear and observe testimony of witnesses at evidentiary hearing. However, where credibility of witness is at issue, it is denial of due process if administrative agency making fact determination does not have benefit of findings, conclusions and impressions of person hearing testimony of witness. Molnar v. State, Bd. of Medical Examiners, 105 Nev. 213, 773 P.2d 726 (1989), cited, Minton v. Board of Medical Examiners, 110 Nev. 1060, at 1082, 881 P.2d 1339 (1994)

Juvenile’s right to effective assistance of counsel includes presentation of closing argument by defense counsel at adjudicatory hearing. At adjudicatory hearing to determine whether juvenile was delinquent child (see NRS 62.193), presentation of closing argument by defense counsel based upon evidence introduced at hearing was integral part of juvenile’s right to effective assistance of counsel (see Nev. Art. 1, § 8), and juvenile court’s outright refusal to hear closing argument constituted reversible error. Shawn M., A Minor v. State, 105 Nev. 346, 775 P.2d 700 (1989)

Court declined to adopt minority rule that mandates reversal of any criminal conviction if defendant has not been expressly advised by court of his right to testify. On appeal from conviction of burglary and battery with deadly weapon, appellant claimed that district court erred by failing, sua sponte and on record, to conduct colloquy with appellant establishing waiver of appellant’s right to testify on his own behalf. Criminal defendants have right to testify on their own behalf under due process clause of U.S. 14th amendment, compulsory process clause of U.S. 6th amendment and privilege against self-incrimination of U.S. 5th amendment (see Nev. Art. 1 § 8), however, appellate court declined to adopt minority rule that mandates reversal of any criminal conviction if defendant has not been expressly advised by trial court of his right to testify. Phillips v. State, 105 Nev. 631, 782 P.2d 381 (1989)

Failure of attorney to file separate notice of appeal from order of district court denying new trial constituted ineffective assistance of counsel. While appellant’s direct appeal from judgment of conviction was pending before supreme court, his attorney filed in district court motion for new trial based on alleged discovery of new evidence. District court entered order denying motion for new trial. Failure of appellant’s attorney to file separate notice of appeal (see N.R.A.P. 4(b)) from order of district court constituted ineffective assistance of counsel (see U.S. 6th amendment and Nev. Art. 1, § 8). Appellant was prejudiced by ineffective conduct of his attorney because appellant lost his right to review by supreme court, and remedy was review by supreme court, in considering appellant’s petition for post-conviction relief, of merits of his claim that he was entitled to new trial. Fawaz v. State, 105 Nev. 682, 783 P.2d 425 (1989), cited, Lozada v. State, 110 Nev. 349, at 354, 871 P.2d 944 (1994), see also Didomenico v. State, 110 Nev. 861, 877 P.2d 1069 (1994)

Confession elicited without Miranda warnings admissible in subsequent trial for perjury. Confession elicited from criminal defendant without giving him Miranda warnings may be used in subsequent proceeding as affirmative evidence to prove that he committed perjury when he testified at trial that he did not commit crime. Defendant’s rights under U.S. 5th amendment were not violated (see also Nev. Art. 1, § 8), since it is only in prosecution for crime to which defendant confesses without Miranda warnings that confession may not be used as substantive evidence of guilt. McGee v. State, 105 Nev. 718, 782 P.2d 1329 (1989)

Direct reference by prosecutor to defendant’s decision not to testify is unconstitutional. Direct reference by prosecutor to defendant’s decision not to testify is always violation of U.S. 5th amendment. (See Nev. Art. 1, § 8.) Barron v. State, 105 Nev. 767, 783 P.2d 444 (1989), cited, Harkness v. State, 107 Nev. 800, at 803, 820 P.2d 759 (1991), McNelton v. State, 111 Nev. 900, at 904, 900 P.2d 934 (1995)

Due process requires that person charged with fraudulently claiming unemployment benefits based on failure to report his promotional activity for fledgling corporation be apprised of what constitutes self-employment pursuant to statute. Where appellant engaged in activities as promoter for fledgling corporation without contract or wage, appellate court held that it was unreasonable for state employment security department to conclude that he was self-employed and that his failure to report such activities resulted in fraudulent claim for unemployment benefits, because if department expected to punish recipient for failure to report "self-employment," it should have defined that term, since basic concepts of fairness and due process require that person charged with wrongdoing be put on notice as to what conduct constitutes wrongdoing. (See Nev. Art. 1, § 8 and NRS 612.185.) Whitney v. State, Dep’t of Employment Security, 105 Nev. 810, 783 P.2d 459 (1989)

Prosecution in both California and Nevada for unlicensed bookmaking does not violate double jeopardy. Although NRS 171.070 grants greater protection from multiple prosecutions than does double jeopardy clause of U.S. 5th amendment or Nev. Art. 1, § 8, NRS 171.070 does not protect defendant from prosecution in both Nevada and California for same acts that constitute bookmaking because elements constituting crime of unlicensed bookmaking in Nevada (see NRS 463.160) are distinctly different from crime of unlicensed bookmaking in California, since it is possible to engage in licensed bookmaking in Nevada, and acts constituting offense in Nevada are not necessary to prove offense in California. Sacco v. State, 105 Nev. 844, 784 P.2d 947 (1989)

Where court vacates unlawful sentence on one count, it may not increase lawful sentence on separate count. Defendant was convicted of attempted murder and sentenced to 10 years in prison, with enhanced penalty of 10 years because victim was 65 years of age or older (see NRS 193.167). On defendant’s motion to vacate enhanced penalty because NRS 193.167 does not provide for enhanced penalty on charge of attempted murder, district court vacated enhanced penalty and resentenced defendant on attempted murder charge to term of 20 years. On appeal, supreme court vacated amended sentence and reinstated 10-year sentence originally imposed because (1) primary sentence and enhancement are separate and distinct, (2) when court is forced to vacate unlawful sentence on one count, it may not increase lawful sentence on separate count, and (3) once defendant begins to serve lawful sentence, he may not be sentenced to increased term because to do so would violate constitutional proscription against double jeopardy (see Nev. Art. 1, § 8). Dolby v. State, 106 Nev. 63, 787 P.2d 388 (1990)

Co-defendants need not be sentenced to identical terms. Where defendant was convicted of attempted sexual assault and sentenced (see NRS 176.033) to 20 years in prison, and co-defendant was sentenced to only 8 years for same crime, such disparity in sentencing did not violate due process rights of defendant (see Nev. Art. 1, § 8) because sentencing is individualized process and no rule of law requires court to sentence co-defendants to identical terms. Nobles v. Warden, 106 Nev. 67, 787 P.2d 390 (1990)

Denial of request for self-representation proper when case complicated and complex. Where defendant was charged with conspiracy to manufacture, possession and sale of controlled substance, and racketeering, it was proper for trial court to deny his request for self-representation pursuant to Nev. Art. 1, § 8, because case was too complicated and complex for him to represent himself. Court may deny defendant’s request for self-representation when case is so complex that defendant would virtually be denied fair trial if allowed to proceed pro se. Lyons v. State, 106 Nev. 438, 796 P.2d 210 (1990)

Guidelines for deciding motion for self-representation. District court has discretion to deny criminal defendant’s request for self-representation under Nev. Art. 1, § 8, on ground of untimeliness alone, if request is not made within reasonable time before commencement of trial or hearing and there is no showing of reasonable cause for lateness of request. If request is made early enough to allow defendant to prepare for trial without need for continuance, request should be deemed timely. If there exists reasonable cause to justify late request, request must be granted. If there is no such reasonable cause, request may be denied. There need not be specific finding of dilatory intent, which is separate and distinct basis for denial of request. District court should set forth in record reasons for denying defendant’s request to represent himself. Lyons v. State, 106 Nev. 438, 796 P.2d 210 (1990), cited, Sanborn v. State, 107 Nev. 399, at 407, 812 P.2d 1279 (1991), Arajakis v. State, 108 Nev. 976, at 981, 843 P.2d 800 (1992), Graves v. State, 112 Nev. 118, at 129, 912 P.2d 234 (1996), dissenting opinion, distinguished, Arajakis v. State, 108 Nev. 976, at 986, 843 P.2d 800 (1992), dissenting opinion.

Right to assistance of counsel at any critical stage of criminal proceeding. Criminal defendant has right under U.S. 6th amendment (cf. Nev. Art. 1, § 8) to be assisted by counsel at any critical stage of criminal proceeding, including sentencing hearing or any other hearing that will affect substantial rights of defendant, such as hearing on motion to retract guilty plea. Beals v. State, 106 Nev. 729, 802 P.2d 2 (1990), cited, Arajakis v. State, 108 Nev. 976, at 985, 843 P.2d 800 (1992), dissenting opinion, State v. Lanning, 109 Nev. 1198, at 1201, 866 P.2d 272 (1993)

Right to waive assistance of counsel if waiver knowingly and intelligently made; court must canvass defendant. Criminal defendant has constitutional right to waive assistance of counsel guaranteed by U.S. 6th amendment (cf. Nev. Art. 1, § 8) and act as his own attorney during critical stage of criminal proceeding as long as waiver of counsel is knowingly and intelligently made, which court must determine by penetrating and comprehensive examination of waiver and circumstances surrounding it. Beals v. State, 106 Nev. 729, 802 P.2d 2 (1990)

Failure of defense counsel to object to mistrial implied consent; retrial was not barred by double jeopardy clause. Mistrial declared at request of defense counsel or with defense counsel’s consent does not bar retrial under double jeopardy clause of U.S. 5th amendment or Nev. Art. 1, § 8. Failure of defense counsel to object or express opinion to district court regarding propriety of mistrial implied consent and indicated tacit approval of mistrial. Gaitor v. State, 106 Nev. 785, 801 P.2d 1372 (1990), cited, Benson v. State, 111 Nev. 692, at 697, 895 P.2d 1323 (1995)

Right to die: Liberty interest in refusing unwanted medical treatment. Person has constitutionally protected liberty interest (see U.S. 14th amendment and Nev. Art. 1, § 8) in refusing unwanted medical treatment. However, that interest must be balanced against interest of state in: (1) preserving life; (2) preventing suicide; (3) protecting innocent third persons; (4) preserving integrity of medical profession; and (5) encouraging charitable and humane care of afflicted persons. McKay v. Bergstedt, 106 Nev. 808, 801 P.2d 617 (1990), cited, Greco v. United States, 111 Nev. 405, at 419, 893 P.2d 345 (1995), dissenting opinion, AGO 95-02 (2-23-1995)

Defendant was not denied due process where jury instruction for reasonable doubt included statement that there was no reasonable doubt if juror had abiding conviction of truth of charge. Defendant in capital case was not denied due process pursuant to Nev. Art. 1, § 8, where jury instruction for reasonable doubt included statement that there was no reasonable doubt if juror had "abiding conviction of truth of charge." Supreme court upheld constitutionality of instruction, finding that language which pertained to abiding conviction of truth, as set forth in NRS 175.211, did not dilute definition of reasonable doubt, did not reduce prosecutor’s burden of proof to convict, and was not attempt to quantify or define reasonable doubt. Lord v. State, 107 Nev. 28, 806 P.2d 548 (1991), cited, Bollinger v. State, 111 Nev. 1110, at 1115, 901 P.2d 671 (1995), Wesley v. State, 112 Nev. 503, at 513, 916 P.2d 793 (1996), Evans v. State, 112 Nev. 1172, at 1191, 926 P.2d 265 (1996), Geary v. State, 112 Nev. 1434, at 1439, 930 P.2d 719 (1996)

Involuntary medication of defendant with antipsychotic drugs during his murder trial was constitutional. Involuntary medication of defendant with antipsychotic drugs during his murder trial did not violate his right to present defense (see Nev. Art. 1, § 8) or his U.S. 6th amendment right to full and fair trial by depriving him of his right to present his natural demeanor to jury as part of his insanity defense, where ample expert testimony was presented which was sufficient to inform jury of effect of drugs on defendant’s demeanor and testimony. Riggins v. State, 107 Nev. 178, 808 P.2d 535 (1991)

Reversed, Riggins v. Nevada, 112 S. Ct. 1810 (1992)

Criminal defendant was denied effective assistance of counsel where his attorney failed adequately to prepare case. Where criminal defendant’s trial counsel did not adequately perform pretrial investigation, failed to pursue evidence supportive of claim of self-defense and failed to explore allegations concerning victim’s propensity towards violence, trial counsel’s representation fell below objective standard of reasonableness and he was not functioning as "counsel" guaranteed defendant by U.S. 6th amendment (see Nev. Art. 1, § 8). Sanborn v. State, 107 Nev. 399, 812 P.2d 1279 (1991)

Denial of defendant’s motion to represent himself was error where his attorney planned to put forward no defense. Where criminal defendant, at conclusion of state’s case, moved to dismiss his attorney and represent himself, claiming that he had just learned that his attorney planned to put forward no defense, denial of that motion was error because denial of defendant’s legitimate interest in self-representation was so prejudicial that it outweighed considerations pertaining to disruption of proceedings, and thereby denied defendant his right to self-representation guaranteed by U.S. 6th amendment (see Nev. Art. 1, § 8). Sanborn v. State, 107 Nev. 399, 812 P.2d 1279 (1991)

Prohibition against double jeopardy does not preclude prosecution for crimes taken into consideration at sentencing hearing. Respondent was convicted of lewdness with child under age of 14 years (see NRS 201.230) and, during sentencing hearing, prosecution presented testimony from two other children that respondent had also molested them. Following sentencing, respondent was indicted for molestation of those two children. Respondent argued that his prosecution on new charges would violate constitutional prohibition against double jeopardy (see U.S. 5th amendment and Nev. Art. 1, § 8) on grounds that he had already been punished for alleged crimes against those two children when their testimony was taken at sentencing hearing and district court imposed sentence based upon that testimony. Respondent’s argument was rejected by supreme court because prohibition against double jeopardy applies only to risk of twice being tried and convicted for same offense. Sheriff, Lander County v. Morfin, 107 Nev. 557, 816 P.2d 453 (1991)

It is constitutional for prosecution to enter into plea bargain with one defendant to testify against another defendant and withhold benefits of bargain until after defendant has testified. It is consistent with due process (see Nev. Art. 1, § 8) for prosecution in criminal case to enter into plea bargain with one defendant to testify against another defendant and withhold benefits of bargain until after defendant has testified. Any consideration promised by prosecution in exchange for witness’s testimony affects only weight accorded testimony and not its admissibility, but prosecution may not bargain for testimony so particularized that it amounts to following script or require that testimony produce specific result. In addition, terms of plea bargain must be fully disclosed to jury, defendant or his counsel must be allowed fully to cross-examine witness concerning terms of bargain, and jury must be given cautionary instruction (see NRS 175.282). Sheriff, Humboldt County v. Acuna, 107 Nev. 664, 819 P.2d 197 (1991)

Revocation of commutation of prison sentence was constitutionally permissible. State board of pardons commissioners (see Nev. Art. 5, § 14 and NRS 213.010) issued order commuting prison sentence of appellant from 20 years to 5 years effective on date order was issued, but at subsequent hearing rescinded commutation and reinstated original sentence. Although order granting commutation gave appellant protected liberty interest, deprivation of that interest was constitutionally permissible because revocation of commutation was consistent with due process (see U.S. 1st amendment and Nev. Art. 1, § 8) since appellant was given notice and opportunity to appear at revocation hearing, was represented by counsel at hearing and was given opportunity to present evidence, witnesses and documents on his own behalf. Kelch v. Director, Dep’t of Prisons, 107 Nev. 827, 822 P.2d 1094 (1991)

Court should grant writ of habeas corpus and vacate sentence if it finds that petitioner had ineffective assistance of counsel at sentencing. Where district court finds that petitioner for writ of habeas corpus had ineffective assistance of counsel (see Nev. Art. 1, § 8) at sentencing, court should grant petition and vacate sentence. Weaver v. Warden, 107 Nev. 856, 822 P.2d 112 (1991)

Egregious conflict of interest inherent in attorney’s representation of defendant created presumption of prejudice to defendant and required reversal of conviction for murder of first degree. Defendant charged with murder of first degree hired attorney to represent him, it being agreed that attorney’s fee would come from proceeds of personal injury settlement handled by attorney on behalf of defendant. When settlement proceeds were disbursed, medical lien on recovery was overlooked. Clinic holding lien sued defendant and attorney. Attorney filed cross-claim against defendant. In reversing defendant’s subsequent conviction for murder, supreme court held that, under specific circumstances of this case, egregious conflict of interest inherent in attorney’s representation of defendant created presumption of prejudice to defendant, relieved defendant of burden of showing that he was prejudiced by deficient representation of counsel which is ordinarily required for successful claim of ineffective assistance of counsel (see Nev. Art. 1, § 8), and required reversal of conviction. Clark v. State, 108 Nev. 324, 831 P.2d 1374 (1992)

Unconstitutional for district court to convict defendant of crime for which he had already been acquitted in municipal court. Criminal defendant was charged in municipal court with battery and destruction of personal property. Following trial, municipal court convicted him of battery and acquitted him of destruction of personal property. Defendant appealed conviction of battery to district court (see NRS 5.090) which, following trial de novo, acquitted defendant of battery but convicted him of destruction of personal property. Defendant’s petition to supreme court for writ of certiorari (see NRS 34.020) was granted and district court was ordered to vacate its judgment of conviction against him because convicting defendant of crime for which he had already been acquitted in municipal court violated U.S. 5th amendment and Nev. Art. 1, § 8, district court had exceeded its jurisdiction, there was no direct appeal available, and there was no plain, speedy and adequate remedy in ordinary course of law. Steele v. First Judicial Dist. Court, 108 Nev. 352, 830 P.2d 1340 (1992)

Indigent person has no right to appointed counsel in proceedings before grand jury. Although NRS 172.241 has liberally modified traditionally secretive nature of grand jury proceedings by extending to person whose indictment is sought right to testify before grand jury, and NRS 172.239 has provided such person with right to retain counsel to accompany him during appearance before grand jury, indigent person who is target of grand jury proceedings has no constitutional right to appointed counsel (see U.S. 6th amendment and Nev. Art. 1, § 8) because grand jury proceedings are investigatory in nature and occur before initiation of adversarial proceedings, and do not constitute critical stage of prosecution. Sheriff, Clark County v. Bright, 108 Nev. 498, 835 P.2d 782 (1992), cited, Gordon v. Ponticello, 110 Nev. 1015, at 1018, 879 P.2d 741 (1994), Sheriff, Clark County v. Warner, 112 Nev. 1234, at 1243, 926 P.2d 775 (1996)

Vagrancy statute is unconstitutionally vague and unenforceable. Paragraph (i) of subsection 1 of NRS 207.030, which makes it unlawful for person to loiter, prowl or wander upon private property of another, without visible or lawful business with owner or occupant thereof, fails adequately to inform public of what conduct is prohibited and, therefore, is unconstitutionally vague and unenforceable under due process clause of U.S. 14th amendment and Nev. Art. 1, § 8. State v. Father Richard, 108 Nev. 626, 836 P.2d 622 (1992), cited, Sheriff, Washoe County v. Vlasak, 111 Nev. 59, at 61, 888 P.2d 441 (1995)

Telemarketing statute was held to be unconstitutionally vague. Where defendant was convicted of violation of former provisions of NRS ch. 599B, supreme court ruled that statute is vague and, because it does not give fair notice of prohibited conduct, is violative of defendant’s constitutional due process rights (see Nev. Art. 1, § 8). Former provisions of NRS 599B.080 were also held void because of vagueness in describing activity that was apparently intended to be prohibited by statute. Therefore, former provisions of NRS ch. 599B could not provide constitutional basis for criminal prosecution, and defendant’s conviction under statute was reversed and district court was directed to enter judgment of acquittal in favor of defendant. Cunningham v. State, 109 Nev. 569, 855 P.2d 125 (1993), cited, Sheriff, Washoe County v. Vlasak, 111 Nev. 59, at 61, 888 P.2d 441 (1995), but see Erwin v. State, 111 Nev. 1535, 908 P.2d 1367 (1995)

Waiver contained in agreement used as part of employer’s drug-testing program did not implicate employee’s constitutional right against self-incrimination and did not form basis for public policy exception to at-will employment doctrine. In action for wrongful discharge brought by employee after he was discharged for refusing to sign agreement which contained provision requiring each employee of employer to waive his constitutional right against self-incrimination (see U.S. 5th amendment and Nev. Art. 1, § 8) in connection with employer’s program to test employees for substance abuse, supreme court held that, because of absence of criminal prosecution or threat thereof by any government entity, no constitutional right was implicated by employer’s actions. Rather, case involved attempt by employer to obtain written commitments from its at-will employees not to erect barriers tending to disrupt testing for abuse of substances deemed warranted by employee’s involvement in either plant accident or reasonably suspicious activities, and waiver contained in agreement expressed nothing more than effort to secure employee’s pledge to cooperate with employer’s testing program. Supreme court further concluded it was unaware of any prevailing public policy against employers seeking to provide safe and lawful working conditions through testing programs designed to identify and eliminate use of illicit drugs and alcohol, and therefore declined to create another public policy exception to at-will employment doctrine based upon employee’s mistaken notion that employer was requiring waiver of his constitutional right as condition to employment. Blankenship v. O’Sullivan Plastics Corp., 109 Nev. 1162, 866 P.2d 293 (1993), cited, Employment Security Dep’t v. Holmes, 112 Nev. 275, at 283, 914 P.2d 611 (1996)

Failure of trial counsel to inform convicted client of right to appeal constitutes ineffective assistance of counsel. Trial counsel must inform convicted client of right to appeal (see N.R.A.P. 4(b)). This duty includes informing client of procedures for filing appeal as well as advantages and disadvantages of filing appeal. Failure of trial counsel to perform duty constitutes ineffective assistance of counsel (see U.S. 6th amendment and Nev. Art. 1, § 8). Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994), cited, Didomenico v. State, 110 Nev. 861, at 864, 877 P.2d 1069 (1994)

Defendant was not denied effective assistance of counsel where counsel did not investigate alleged exculpatory statements of which he was not aware. Where defendant in capital case claimed ineffective assistance of counsel on basis that defense counsel failed to investigate adequately potential exculpatory statements made to mother of defendant, supreme court held that petition for post-conviction relief was properly denied because mother never attempted to communicate alleged statements to defense counsel. (See Nev. Art. 1, § 8 and U.S. 6th amendment.) Riley v. State, 110 Nev. 638, 878 P.2d 272 (1994)

Failure to object to allegedly improper statements by state was not ineffective assistance of counsel under circumstances. Defendant filed petition for post-conviction relief from conviction for murder of first degree on basis that he received ineffective assistance of counsel in penalty phase of trial because counsel failed to object to allegedly improper statements of prosecutor. Supreme court affirmed district court’s denial of defendant’s petition for post-conviction relief because statements of prosecutor did not reach level of prosecutorial misconduct and, even if statements constituted prosecutorial misconduct and defense counsel’s failure to object to statements fell below objective standard of reasonableness, defendant did not present sufficient evidence that such failure made verdict unreliable. (See Nev. Art. 1, § 8 and U.S. 6th amendment.) Riley v. State, 110 Nev. 638, 878 P.2d 272 (1994)

Failure to request jury instruction relating to credibility of witnesses was not ineffective assistance of counsel under circumstances. Defendant sentenced to death for murder of first degree was not denied effective assistance of counsel in guilt phase of trial where defense counsel failed to request instruction addressing credibility of witnesses as accomplices, compensated informants, co-conspirators and drug addicts. Supreme court found that (1) decision of defense counsel not to request instruction relating to accomplices was legitimate tactical decision because theory of defense case was not based on joint criminal liability, (2) no evidence was presented that witnesses were compensated informants, and (3) both prosecution and defense presented sufficient evidence relating to use of drugs by witnesses, and jury was instructed to use its common sense to determine credibility and weight of evidence. (See Nev. Art. 1, § 8 and U.S. 6th amendment.) Riley v. State, 110 Nev. 638, 878 P.2d 272 (1994)

Defense counsel’s failure to object to striking of potential juror was not ineffective assistance of counsel under circumstances. Defendant convicted of murder of first degree was not denied effective assistance of counsel in guilt phase of trial where counsel failed to object to improper motion by court striking potential juror and failed to rehabilitate juror after judge’s voir dire questioning indicated juror did not have capacity as juror. Record of voir dire showed that juror’s answers were contradictory and indicated she was entirely confused by criminal process and that she was excused on motion of court with no objection from either party. (See Nev. Art. 1, § 8 and U.S. 6th amendment.) Riley v. State, 110 Nev. 638, 878 P.2d 272 (1994)

Defendant who claimed that supreme court was biased toward defendant and his counsel was not denied actual assistance of counsel on direct appeal under circumstances. Defendant convicted of murder of first degree and sentenced to death sought post-conviction relief on basis that he was denied actual assistance of counsel on his direct appeal alleging that (1) supreme court was biased toward defendant and his counsel for filing class action lawsuit in federal court challenging former provisions of supreme court rule which required strict adherence to expedited briefing schedule in capital case, and (2) defense counsel spent more time and energy fighting court system than preparing appeal. Supreme court affirmed district court’s denial of defendant’s petition for post-conviction relief, finding that defendant failed to show any evidence to support claims and, for claim that counsel had insufficient time to represent defendant adequately on appeal, supreme court itself engaged in extensive review of all claims of defendant. (See Nev. Art. 1, § 8 and U.S. 6th amendment.) Riley v. State, 110 Nev. 638, 878 P.2d 272 (1994)

In trial for first-degree murder, statement made by defendant’s counsel that defendant was guilty only of second-degree murder was reversible error under circumstances. On appeal from defendant’s conviction for first-degree murder and sentence of death, supreme court concluded that defendant received ineffective assistance of counsel under U.S. 6th amendment (cf. Nev. Art. 1, § 8) where defendant’s counsel, during guilt phase of trial and without consent of defendant, undermined defendant’s testimonial disavowal of guilt by conceding to jury that, although evidence showed beyond reasonable doubt that defendant killed victim, defendant was guilty of only second-degree murder. In reversing defendant’s judgment of conviction and sentence of death, supreme court determined that even though it was questionable whether counsel’s actions prejudiced defendant, error committed by counsel for defendant was of such magnitude that reversal was nonetheless warranted. Jones v. State, 110 Nev. 730, 877 P.2d 1052 (1994)

Offered plea bargain could be withdrawn before entry of plea under circumstances. In criminal prosecution, where state withdrew offered plea bargain before defendant entered plea, defendant had not detrimentally relied on offer and there was no showing that state had gained unfair advantage over defendant as result of reliance of defendant on offer, justice court could not compel specific performance by state of offered plea bargain. (See also Nev. Art. 1, § 8.) State v. Crockett, 110 Nev. 838, 877 P.2d 1077 (1994)

Criminal defendant who does not understand English has constitutional right to appointment of interpreter. Criminal defendant has due process right (see Nev. Art. 1, § 8) to interpreter at all crucial stages of criminal process, irrespective of NRS 50.051, if he in fact does not understand English language. However, where trial court determined that defendant was sufficiently fluent in English language to understand proceedings in meaningful sense, determination was not abuse of discretion and judgment of conviction was affirmed. The Thanh Ton v. State, 110 Nev. 970, 878 P.2d 986 (1994)

Right to practice medicine is property right protected by due process clause. Right to practice medicine is property right protected by due process clauses of U.S. and Nevada Constitutions (see Nev. Art. 1, § 8), and license to practice medicine may not be arbitrarily abridged or revoked. Minton v. Board of Medical Examiners, 110 Nev. 1060, 881 P.2d 1339 (1994)

Absence of restrictions on media activities in administrative proceeding for revocation of medical license did not under circumstances violate due process clause. In administrative proceeding for revocation of medical license, absence of guidelines for media and failure of board of medical examiners to police activities of media did not violate due process clause (see Nev. Art. 1, § 8) where appellant did not object during proceeding to alleged misconduct of media, did not produce evidence or suggest theory as to how board composed of professionals was or could have been prejudicially influenced by alleged conduct of media at proceeding, and did not show how media restrictions or other action by board would have tended to reduce risk of erroneous deprivation of his license, and where drafting and imposition of detailed media guidelines would entail fiscal and administrative burden on board. Minton v. Board of Medical Examiners, 110 Nev. 1060, 881 P.2d 1339 (1994)

Admission of expert testimony concerning veracity of complainants in proceeding for revocation of medical license did not result in violation of due process under circumstances. Where board of medical examiners in proceeding for revocation of medical license allowed expert witness to offer his opinion as to veracity of three complainants who testified concerning certain alleged acts of sexual misconduct by appellant, board did not disregard concepts behind rules of evidence to such extent that violation of due process occurred (see Nev. art. 1, § 8). Although admission of expert’s testimony would certainly have been error in criminal trial, it was not necessarily error at proceeding conducted by board because board is not bound by formal, statutory rules of evidence (see NRS 630.346). Minton v. Board of Medical Examiners, 110 Nev. 1060, 881 P.2d 1339 (1994)

Test to determine validity of denial of access to material evidence after specific request is made by defendant. Where defendant in prosecution for unlawful sale of cocaine made request for pretrial order compelling state to disclose all information in its possession relating to confidential informant who introduced undercover police officer to defendant for purpose of buying cocaine, supreme court concluded that proper standard for determining violation of Brady v. Maryland, 373 U.S. 83 (1963), which requires prosecutor to disclose to accused favorable evidence material to either guilt or punishment, is whether, after accused makes specific request for material evidence, there exists reasonable possibility that claimed evidence would have affected judgment of trier of fact and, therefore, outcome of trial. (See Nev. Art. 1, § 8.) Roberts v. State, 110 Nev. 1121, 881 P.2d 1 (1994), cited, Homick v. State, 112 Nev. 304, at 314, 913 P.2d 1280 (1996), Jimenez v. State, 112 Nev. 610, at 619, 918 P.2d 687 (1996)

Right to fair trial not afforded where defendant was denied access to information under circumstances. Supreme court remanded case to district court for review of file which contained information relating to confidential informant who introduced undercover police officer to defendant for purpose of buying cocaine to determine if file contained evidence substantiating defendant’s entrapment claim. Supreme court held that if evidence substantiating defendant’s claim of entrapment and allowing effective impeachment of confidential informant was contained in file and if defendant was denied access to that information, then defendant was not afforded fair trial (see Nev. Art. 1, § 8). Roberts v. State, 110 Nev. 1121, 881 P.2d 1 (1994), cited, Jimenez v. State, 112 Nev. 610, at 621, 918 P.2d 687 (1996)

Prosecutor has affirmative duty to present information for in camera review under circumstances. Where defendant made specific request for information contained in file relating to confidential informant who introduced undercover police officer to defendant for purpose of buying cocaine, prosecutor had affirmative duty to present information for in camera review once particular evidence was identified and specific materiality claim was articulated by defendant. (See Nev. Art 1, § 8.) Roberts v. State, 110 Nev. 1121, 881 P.2d 1 (1994)

Prosecution of defendant not barred by double jeopardy clause of U.S. 5th amendment under circumstances. Where justice’s court improperly amended criminal complaint of felony offense of driving under influence of intoxicating liquor to misdemeanor and accepted guilty plea based on amended complaint, and where justice’s court exceeded its jurisdiction in accepting guilty plea, supreme court held that state’s prosecution of defendant on original felony charge was not in violation of double jeopardy clause of U.S. 5th amendment because double jeopardy clause attaches once defendant is tried by court of competent jurisdiction and justice’s court was not court of competent jurisdiction when it accepted guilty plea. (See Nev. Art. 1, § 8.) Parsons v. Fifth Judicial Dist. Court, 110 Nev. 1239, 885 P.2d 1316 (1994)

Conviction reversed where defendant was prejudiced by ineffective assistance of counsel for failure to raise issue on appeal. Where prosecution, during trial of defendant charged with unlawful possession of controlled substances (see NRS 453.336), presented evidence that defendant frequented apartment that was rented to his brother and stored some of his personal belongings in apartment, but presented no evidence that defendant had control of, or right to control, cocaine or marijuana found in apartment, and where defendant presented evidence that he did not live at apartment and that several persons had access to apartment, it was clear that defendant did not have exclusive access to controlled substances and evidence was not sufficient to establish that defendant, rather than one of numerous other persons who frequented apartment, possessed cocaine and marijuana found there. Failure of defendant’s counsel to raise this issue on appeal constituted ineffective assistance of counsel (see Nev. Art. 1, § 8) and supreme court reversed conviction. Marshall v. State, 110 Nev. 1328, 885 P.2d 603 (1994)

Unconstitutional to grant new trial based on determination of insufficient evidence to support jury verdict. Amendatory language added to NRS 175.381 in 1991 does not provide district court with power to grant new trial based on determination of insufficient evidence to support jury verdict. If there is truly insufficient evidence, defendant must be acquitted. New trial (see NRS 176.515) would violate defendant’s constitutional right against double jeopardy pursuant to U.S. 5th amendment (see Nev. Art. 1, § 8). State v. Purcell, 110 Nev. 1389, 887 P.2d 276 (1994), cited, Evans v. State, 112 Nev. 1172, at 1193, 926 P.2d 265 (1996)

Terming of evidence as "insufficient" by district court did not bar granting of new trial where thorough reading of court’s decision revealed that court found evidence to be conflicting rather than insufficient. Where district court, based on independent evaluation of conflicting evidence, termed evidence against defendant "insufficient" and granted defendant new trial pursuant to NRS 176.515, granting of new trial did not violate defendant’s constitutional right against double jeopardy pursuant to U.S. 5th amendment (see Nev. Art. 1, § 8) because thorough reading of district court’s decision revealed that district court did not find evidence insufficient as matter of law to support verdict (see NRS 175.381), but instead found that it was conflicting and that verdict was not "based on substantial evidence," and record showed that victim testified to substance of allegations, so that there was technically sufficient evidence supporting charges. In contrast to conflicting evidence, insufficiency of evidence occurs only where prosecution has not produced minimum threshold of evidence upon which conviction may be based, even if such evidence were believed by jury. State v. Purcell, 110 Nev. 1389, 887 P.2d 276 (1994)

Prosecutorial comment on defendant’s silence was harmless error. In criminal prosecution, prosecutor’s use of defendant’s failure to inform police of his version of events before trial in order to impeach defendant’s credibility may constitute prosecutorial misconduct, regardless of whether defendant received Miranda warning. However, prosecutor’s comments constituted harmless error and defendant’s right to fair and impartial trial (see Nev. Art. 1, § 8) was, therefore, not violated because (1) outcome of case did not depend on defendant’s word versus victim’s word, and (2) frequency and intensity of prosecutor’s references to defendant’s silence were not of nature requiring reversal where prosecutor’s questions were intended to draw jury’s attention only to defendant’s evasiveness in answering questions and not to defendant’s silence. Coleman v. State, 111 Nev. 657, 895 P.2d 653 (1995), cited, Washington v. State, 112 Nev. 1054, at 1060, 921 P.2d 1253 (1996), Quillen v. State, 112 Nev. 1369, at 1379, 929 P.2d 893 (1996)

Retrial of defendant violated his protection against double jeopardy where there was no manifest necessity for declaring mistrial in first trial. Defendant was denied protection against double jeopardy provided by U.S. 5th amendment and Nev. Art. 1, § 8 when he was retried for sexual assault, where first trial was declared mistrial after district court improperly held defense counsel in criminal contempt. To avoid bar of double jeopardy, there must be manifest necessity for declaring mistrial. Despite fact that defense counsel stated that he would not oppose motion for mistrial, granting motion for mistrial was improper because granting of motion was based on incorrect premise that defense counsel intentionally violated court order to exclude evidence of prior consensual sexual relations between victim and defendant. Therefore, absent manifest necessity for mistrial, retrial of defendant violated his protection against double jeopardy provided by U.S. 5th amendment and Nev. Art. 1, § 8, and his conviction was reversed. Benson v. State, 111 Nev. 692, 895 P.2d 1323 (1995)

Defense counsel did not, under circumstances, give implied consent to forego protection against double jeopardy; determination of implied consent is based on totality of circumstances. Retrial of defendant violated his constitutional protection against double jeopardy provided by U.S. 5th amendment and Nev. Art. 1, § 8, where first trial ended in mistrial after prosecutor moved for mistrial on ground that defense counsel should be held in criminal contempt of court and defense counsel stated that he would not oppose motion for mistrial. In determining whether defense counsel has given implied consent to mistrial and to forego protection against double jeopardy, totality of circumstances of specific case must be considered. In this case, although defense counsel initially stated that he would not oppose motion for mistrial, defense counsel subsequently stated that he would not object to continuance of proceeding, disputed prosecutor’s basis for motion for mistrial and argued that he had done nothing improper. Therefore, based on totality of circumstances, supreme court held that it could not be presumed that defendant, through actions of defense counsel, had consented to forego his protection against double jeopardy, and retrial violated defendant’s constitutional protection against double jeopardy pursuant to U.S. 5th amendment and Nev. Art. 1, § 8. Benson v. State, 111 Nev. 692, 895 P.2d 1323 (1995)

Prosecutor’s statements regarding defendant’s failure to express remorse in allocution statement did not improperly call attention to defendant’s failure to testify and did not constitute reversible error. Where defendant convicted of murder of first degree exercised his right of allocution to make unsworn statement to jury in mitigation of sentencing and prosecutor’s statements in rebuttal accused defendant of failing to express remorse, prosecutor’s statements did not improperly call attention to defendant’s failure to testify. While prosecutor’s statements indirectly referred to defendant’s failure to testify, jury would not naturally and necessarily view statements that way. Thus, admission into evidence of prosecutor’s statements did not constitute reversible error. (See Nev. Art. 1, § 8.) McNelton v. State, 111 Nev. 900, 900 P.2d 934 (1995)

Standard for determining whether indirect reference by prosecutor to defendant’s decision not to testify is prejudicial. Standard for determining whether indirect reference by prosecutor to defendant’s decision not to testify is prejudicial is whether error is harmless beyond reasonable doubt. (See Nev. Art. 1, § 8.) McNelton v. State, 111 Nev. 900, 900 P.2d 934 (1995)

Defendant denied right to fair trial when district court denied motion for new trial after potentially prejudicial contact between jurors and witness for prosecution during recess in trial. Criminal defendant moved for new trial on ground that witness for prosecution had conversed with jurors in designated smoking area of courthouse during recess in trial. Where district court could not state with certainty that contact between witness and jurors had no effect on jury’s verdict, court’s denial of motion denied defendant right to fair trial. Although not every incidence of contact between juror and witness requires granting of motion for new trial, motion for new trial must be granted unless it appears, beyond reasonable doubt, that no prejudice has resulted from contact. Therefore, district court erred in denying motion for new trial because district court not only failed to conclude beyond reasonable doubt that no prejudice resulted, but court recognized that prejudice may have resulted from contact. (See Nev. Art. 1, § 8.) Roever v. State, 111 Nev. 1052, 901 P.2d 145 (1995)

Prosecution’s failure to provide discovery prejudiced defendant’s right to fair trial. In investigating murder, investigator for police secretly recorded interview with defendant on morning immediately after murder. At trial, prosecution did not timely disclose existence of tapes and transcripts of tapes to defense counsel. Upon motion for new trial, district court acknowledged prosecution’s violation of discovery order but court declined to exercise its power to grant new trial and deferred that determination to supreme court. Supreme court reversed conviction and remanded case for new trial, holding that district court erred in failing to make determination and that defendant’s right to fair trial was prejudiced by prosecution’s failure to provide discovery. (See Nev. Art. 1, § 8.) Roever v. State, 111 Nev. 1052, 901 P.2d 145 (1995)

Defendant was not denied effective assistance of counsel under circumstances. Defendant convicted of murder of first degree was not denied effective assistance of counsel in penalty hearing (see NRS 175.552) where defense counsel did not present any evidence of possibility of rehabilitation or investigate or present evidence of defendant’s mental, psychological or social state for purpose of establishing mitigating factors. Judicial scrutiny of counsel’s performance is highly deferential and defense counsel’s performance was not deficient in light of mitigating circumstances presented by other witnesses and overwhelming evidence of guilt and aggravating circumstances. Therefore, defendant’s contention that he was denied effective assistance of counsel and right to fair trial were without merit. (See Nev. Art. 1, § 8.) Bennett v. State, 111 Nev. 1099, 901 P.2d 676 (1995)

Defendant was denied effective assistance of counsel under circumstances. Defendant filed petition for post-conviction relief to set aside convictions for battery with deadly weapon, mayhem and sexual assault, on ground that he did not receive effective assistance of counsel guaranteed by U.S. 6th amendment and Nev. Art. 1, § 8. Despite evidence that defendant severely beat victim with stick with protruding nail, knocked out at least one of victim’s teeth, hit and carved victim with bottles and inserted bottle into rectum of victim, supreme court held that district court erred in denying defendant’s petition, finding that defendant received ineffective assistance of counsel because defense counsel failed to (1) investigate facts, (2) call witness, (3) make opening statement, (4) consider and present legal defenses of self-defense and defense of others in light of defendant’s statement that defendant fought with victim after victim harassed defendant’s female companion, (5) spend time in legal research, and (6) present a cognizable defense. Therefore, because defendant was denied effective assistance of counsel, outcome of trial was unreliable and judgment of conviction was reversed. Buffalo v. State, 111 Nev. 1139, 901 P.2d 647 (1995)

Defendant was denied effective assistance of counsel in case of sexual assault where defense counsel relied on improper legal supposition as sole defense. Defendant, convicted of sexual assault for inserting bottle into rectum of victim, was denied effective assistance of counsel guaranteed by U.S. 6th amendment and Nev. Art. 1, § 8, where defense counsel’s sole defense was that jury could not return verdict of guilty because offense was legally impossible if defendant did not receive sexual excitement or sexual satisfaction from act. However, legal supposition that defendant could not be convicted of sexual assault absent presence of sexual motivation was incorrect because sexual excitement and sexual satisfaction received by defendant during assault are not essential elements of crime of sexual assault (see NRS 200.366). Therefore, defendant was denied effective assistance of counsel as result of defense counsel’s reliance on improper legal supposition, and judgment of conviction was reversed. Buffalo v. State, 111 Nev. 1139, 901 P.2d 647 (1995)

Defendant’s due process rights were infringed where, following retrial, he was not credited with time served on parole from original sentence. Defendant’s due process rights were infringed where defendant, whose initial conviction on three counts of obtaining money under false pretenses was vacated and who was retried, convicted and given identical sentences on same three counts, was not credited with time served on parole from initial sentence (see NRS 176.055 and Nev. Art. 1, § 8). Mays v. Eighth Judicial Dist. Court, 111 Nev. 1172, 901 P.2d 639 (1995)

Scope of protection under double jeopardy clause. Double jeopardy clause of U.S. 5th amendment (cf. Nev. Art. 1, § 8) protects against three abuses: (1) second prosecution for same offense after acquittal; (2) second prosecution for same offense after conviction; and (3) multiple punishments for same offense. Desimone v. State, 111 Nev. 1221, 904 P.2d 1 (1995)

Determination of whether multiple punishments for same offense have occurred. Whether multiple punishments for same offense have occurred for purposes of double jeopardy clause of U.S. 5th amendment (cf. Nev. Art. 1, § 8) can be identified only by assessing character of actual sanctions imposed on person by machinery of state. Desimone v. State, 111 Nev. 1221, 904 P.2d 1 (1995)

Civil penalty is considered "punishment" when penalty does not solely serve remedial purpose. Civil penalty is considered "punishment" for purposes of double jeopardy clause of U.S. 5th amendment (cf. Nev. Art. 1, § 8) when that penalty does not solely serve remedial purpose, but rather can only be explained as also serving purposes of retribution or deterrence. It is purposes actually served by sanction in question that must be evaluated. Desimone v. State, 111 Nev. 1221, 904 P.2d 1 (1995), cited, Wright v. State, 112 Nev. 391, at 402, 916 P.2d 146 (1996)

Payment of tax on controlled substances constitutes punishment for purposes of double jeopardy clause. On appeal of judgment of conviction for one count of possession of trafficking quantity of controlled substance, supreme court determined that assessment of tax against defendant pursuant to NRS ch. 372A constituted punishment, thereby triggering protections of double jeopardy clause of U.S. 5th amendment (cf. Nev. Art. 1, § 8), because (1) provisions of chapter impose excessively high rate of taxation for methamphetamine and marihuana, (2) potential proceeds for tax are earmarked to pay for anti-crime measures, (3) tax imposed pursuant to chapter is designed to punish criminal activity, and (4) methamphetamine confiscated by state was not in possession of defendant when tax was imposed. However, court noted that such conclusion does not render NRS ch. 372A unconstitutional on its face, but simply requires that taxes assessed pursuant to that chapter be considered punishment for purposes of double jeopardy clause. Desimone v. State, 111 Nev. 1221, 904 P.2d 1 (1995), cited, Levingston v. Washoe County, 112 Nev. 479, at 487, 916 P.2d 163 (1996)

Civil penalty may be levied in full even if penalty constitutes punishment for purposes of double jeopardy clause. Civil penalty may be levied in full, even if penalty constitutes punishment for purposes of double jeopardy clause of U.S. 5th amendment (cf. Nev. Art. 1, § 8), as long as debtor is not subject to further prosecution for same offense. Desimone v. State, 111 Nev. 1221, 904 P.2d 1 (1995)

Imposition of civil penalty in addition to criminal sanctions. Where state seeks to impose civil penalty upon defendant in addition to criminal sanctions, state can avoid issue of double jeopardy under U.S. 5th amendment (cf. Nev. Art. 1, § 8) by enhancing fines imposed in same proceeding in which criminal sanctions are sought. These fines do not present issue of double jeopardy and are rendered in proceeding that affords defendant benefit of greater protections under due process clause and higher burden of proof. Desimone v. State, 111 Nev. 1221, 904 P.2d 1 (1995), cited, Levingston v. Washoe County, 112 Nev. 479, at 488, 916 P.2d 163 (1996)

Analysis under double jeopardy clause triggered whether or not civil penalties precede criminal prosecution; lack of actual payment of civil penalties did not preclude application of double jeopardy clause under circumstances. On appeal of judgment of conviction for one count of possession of trafficking quantity of controlled substance, state argued that, because defendant had not actually paid any amount of civil sanctions previously imposed upon defendant and reduced to judgment pursuant to NRS ch. 372A for failure to pay tax on controlled substance, defendant’s conviction obtained after imposition of civil sanctions should not be held invalid as second punishment under double jeopardy clause of U.S. 5th amendment (cf. Nev. Art. 1, § 8). In rejecting argument of state, supreme court concluded that analysis under double jeopardy clause is triggered whether or not civil penalties precede criminal prosecution, and fact that defendant had not actually paid any amount of fine assessed against him did not preclude application of double jeopardy clause because penalties had been reduced to judgment rather than merely assessed against defendant. Desimone v. State, 111 Nev. 1221, 904 P.2d 1 (1995)

Double jeopardy clause is implicated by civil penalty to extent that penalty exceeds rough accounting of costs incurred by government. Double jeopardy clause of U.S. 5th amendment (cf. Nev. Art. 1, § 8) is implicated by any civil penalty to extent that such penalty exceeds rough accounting of costs incurred by government, and whatever amount does not exceed that rough approximation is not prohibited. Desimone v. State, 111 Nev. 1221, 904 P.2d 1 (1995), cited, Wright v. State, 112 Nev. 391, at 402, 916 P.2d 146 (1996)

Statute which enhances criminal penalty for illegal sale of controlled substance in zone surrounding school does not violate constitutional guarantee of equal protection. Defendant who pleaded guilty to selling controlled substance within 1,000 feet of school challenged enhancement of her sentence pursuant to NRS 453.3345 on ground that she was denied equal protection because 1,000 foot radius used to determine sentence enhancement was arbitrary measurement that was unconstitutionally vague and overbroad. In affirming sentence, supreme court held that NRS 453.3345 did not violate equal protection guarantees of state or federal constitution (see Nev. Art. 1, § 8, and U.S. 14th amendment), because state had compelling interest in protecting children from evils that follow illegal use and trafficking of controlled substances and 1,000 foot radius set forth in NRS 453.3345 was rationally related to that end. Armijo v. State, 111 Nev. 1303, 904 P.2d 1028 (1995)

Provisions creating screening panel to review claims for medical malpractice do not deprive claimants of property without due process of law. NRS 41A.016 and 41A.049 do not deprive claimant in action for medical malpractice of property without due process of law in violation of Nev. Art. 1, § 8 on ground that findings of screening panel that reviewed claim are admissible at trial, even though (1) panel may base its decision on evidence that would be inadmissible at trial, (2) claimant is denied right to cross-examine witnesses presented to panel, (3) members of panel may not be deposed or subpoenaed regarding their decisions, and (4) decision of panel is not subject to collateral review by district court. Provisions comply with requirements for due process because (1) decision of screening panel does not bind or impair substantial right of any party to action for medical malpractice, (2) claimant may, at trial, cross-examine defense witnesses who were presented to screening panel, (3) claimant may inform jury that expert witnesses are being presented to jury that were not presented to screening panel, and (4) finding of screening panel has no more weight than that of single item of evidence and jury may accept or reject that finding. Barrett v. Baird, 111 Nev. 1496, 908 P.2d 689 (1995)

Mandatory award of fees and costs in action for medical malpractice does not deprive claimant of right to due process. NRS 41A.056, which requires trial court to award attorney’s fees and costs to defendant in action for medical malpractice if decision of screening panel and judgment at trial are not in favor of claimant, does not deprive claimant of property without due process of law in violation of Nev. Art. 1, § 8 on ground that (1) claimant is not provided with opportunity to appeal panel’s findings which provide basis for award of fees and costs, and (2) trial court has no discretion to deny award of fees where award would be unjust. Where full and fair hearing is provided, due process does not require that appellate review be provided. In addition, decision of screening panel is not basis for award of fees and costs as award is required by verdict of jury. Finally, NRS 41A.056 requires only award of attorney’s fees that trial court determines is reasonable. Barrett v. Baird, 111 Nev. 1496, 908 P.2d 689 (1995)

Provisions of chapter regulating solicitations by telephone do not violate due process. NRS ch. 599B did not violate defendant’s right to due process (see Nev. Art. 1, § 8) on ground that provisions of chapter failed to provide adequate notice that it applied to him because chapter clearly and specifically defines who is "seller" subject to regulation, outlines what conduct is regulated, and explains how each seller must register in order to comply with regulation. Chapter, therefore, places person of ordinary intelligence on notice that he must register with state before engaging in regulated business activities. Erwin v. State, 111 Nev. 1535, 908 P.2d 1367 (1995)

Valid waiver of right to counsel where record demonstrates that defendant was aware of dangers of representing himself. In criminal prosecution, defendant knowingly and intelligently waived right to counsel (see Nev. Art. 1, § 8), even though trial court did not specifically inquire into defendant’s background and experience and failed to explain to defendant nature of charges or offenses, potential defenses defendant could use, allowable punishments, or possibility of being sentenced as habitual criminal, because record clearly demonstrated that defendant was aware of dangers and disadvantages of representing himself. Inclusion of specific matters in canvass of defendant is not constitutionally required for valid waiver where it is apparent from record that defendant is aware of dangers and disadvantages of representing himself. Graves v. State, 112 Nev. 118, 912 P.2d 234 (1996), cited, Tillema v. State, 112 Nev. 266, at 271, 914 P.2d 605 (1996)

Admission of incriminating statements elicited without Miranda warnings was unconstitutional. In prosecution of murder, where (1) shortly after defendant summoned police to scene of crime, defendant’s hands were "bagged" to preserve incriminating evidence, (2) interrogation of defendant at sheriff’s department took place in room used for interviews and equipped with special mirror, and (3) except for one visit made by mental health counselor, only defendant and investigators were present in interview room, reasonable person in defendant’s position would have concluded that he was under arrest. Therefore, defendant’s rights under U.S. 5th amendment (see Nev. Art. 1, § 8) were violated when district court failed to suppress incriminating statements made by defendant during interrogation before Miranda warnings were administered. Alward v. State, 112 Nev. 141, 912 P.2d 243 (1996)

Incriminating statements were voluntary. Criminal defendant was not deprived of due process of law under U.S. 5th amendment (see Nev. Art. 1, § 8) on ground that incriminating statements he made during interrogation were coerced and involuntary, even though he was questioned for several hours, where (1) defendant received Miranda warnings and voluntarily waived his rights, and (2) investigators did not employ coercive interrogation techniques such as depriving defendant of food or sleep. Alward v. State, 112 Nev. 141, 912 P.2d 243 (1996)

Use of incriminating statements made to mental health counselor violated defendant’s right to due process. In criminal prosecution, introduction of statements made by defendant to mental health counselor during break in interrogation was unfair to defendant and violated his right to due process of law under U.S. 14th amendment (see Nev. Art. 1, § 8) where investigator implied that conversation was private, counselor urged departing investigator to close door so that interview could begin, and defendant and counselor were left alone in interrogation room. Alward v. State, 112 Nev. 141, 912 P.2d 243 (1996)

Jeopardy attaches in civil forfeiture action when final judgment of forfeiture is entered; petitioners not placed in double jeopardy under circumstances. Double jeopardy attaches in civil forfeiture action when final judgment of forfeiture is entered. Thus, where jeopardy never attached in civil forfeiture action because no judgment of forfeiture was ever entered, criminal indictment filed against petitioners after dismissal of civil forfeiture action did not place petitioners in jeopardy for second time. (See Nev. Art. 1, § 8.) Gordon v. Eighth Judicial Dist. Court, 112 Nev. 216, 913 P.2d 240 (1996)

Indictment alleged racketeering enterprise with sufficient clarity under circumstances. Indictment of grand jury alleged racketeering enterprise (see NRS 207.380) with clarity required by due process clause of U.S. 5th amendment (cf. Nev. Art. 1, § 8) where indictment named specific enterprises and all counts set forth in indictment were plain and concise statements of essential facts constituting offenses charged (see NRS 173.075). Gordon v. Eighth Judicial Dist. Court, 112 Nev. 216, 913 P.2d 240 (1996)

Comments by prosecutor about defendant’s postarrest, pre-Miranda silence constituted prosecutorial misconduct. Conviction of defendant on charge of murder of second degree was reversed where prosecutor made comments during trial and closing argument that defendant, after she had been arrested but before she had been read her Miranda rights, refused to speak with police and requested to speak with her attorney. Supreme court held that (1) privilege against self-incrimination precluded reference to defendant’s silence and right to remain silent does not arise solely from express assurances contained in Miranda warning, (2) Miranda warning had been widely publicized through media and therefore many people had personal knowledge of rights, and (3) court’s refusal to draw line between postarrest, post-Miranda silence and postarrest, pre-Miranda silence would foreclose any inducement of police to engage in game of not asking questions immediately after arrest in order to use silence against defendant. Therefore, prosecutor’s comments about defendant’s silence amounted to prosecutorial misconduct, and verdict was reversed. Morris v. State, 112 Nev. 260, 913 P.2d 1264 (1996)

Effect of police deception in determining voluntariness of confession. Police deception is relevant factor in determining whether confession is voluntary. However, police officer’s lie about strength of evidence against defendant is, in itself, insufficient to make confession involuntary. Confessions obtained through use of subterfuge are not vitiated so long as methods used are not of type reasonably likely to procure untrue statement. If lie is intrinsic to facts of alleged offense (e.g., misrepresentations regarding evidence or eyewitnesses), lie must be considered in totality of circumstances surrounding confession in determining its voluntariness. If lie is extrinsic to facts of alleged offense and likely to procure untrue statement or influence defendant to make confession regardless of guilt (e.g., assurances of divine salvation upon confession, promises of improved treatment in exchange for confession, misrepresentation of consequences of conviction, representation that welfare benefits or children will be taken away unless there is confession, or suggestion of harm or benefit to someone), lie will be regarded as coercive per se, thus obviating need for analysis of totality of circumstances. (See Nev. Art. 1, § 8.) Sheriff, Washoe County v. Bessey, 112 Nev. 322, 914 P.2d 618 (1996)

Photographic evidence was not stale and probable cause existed to conduct search. Search warrant was issued based on photographs which showed marihuana being grown at defendant’s residence. Defendant had taken negatives of photographs to photo lab for developing on day before issuance of warrant and photo lab had notified police concerning contents of photos. On appeal of conviction for manufacturing controlled substance, defendant argued that time when photographs were taken was uncertain and, therefore, photographic evidence was stale and no probable cause existed to conduct search. Supreme court rejected defendant’s argument, finding that photographs were not stale evidence on grounds that: (1) photographs indicated cultivation of marihuana, which is relatively long-term activity making passage of time less significant in determining existence of probable cause; (2) photo lab had received negatives on day before issuance of warrant and people generally have their photos developed soon after they take them; and (3) police officer familiar with area informed justice of the peace who issued warrant that photos depicted scenes consistent with conditions in area over preceding several months. (See Nev. Art. 1, § 8 and NRS 179.045.) Wright v. State, 112 Nev. 391, 916 P.2d 146 (1996)

Civil forfeiture provisions constitute punishment for purposes of double jeopardy. Provisions of NRS 453.301 providing for forfeiture of conveyances and real property upon commission of certain drug-related offenses serve to punish because they apply only to culpable, not innocent, owners (see NRS 179.1164) and to property linked to specific drug-related offenses. Provisions are not solely remedial because they provide not only for removal of dangerous and illegal contraband from society but also for confiscation of homes, vehicles and other property, and forfeitable property varies so dramatically in value that penalty has no correlation to costs to society or law enforcement. Therefore, civil forfeiture under these provisions constitutes punishment for purposes of double jeopardy. (See U.S. 5th amendment and Nev. Art. 1, § 8.) Wright v. State, 112 Nev. 391, 916 P.2d 146 (1996)

Criminal conviction violated prohibition against double jeopardy where separate civil forfeiture action against defendant was dismissed upon payment of money by defendant to state. District attorney charged defendant in criminal complaint with various drug-related offenses and attorney general filed separate complaint for civil forfeiture against certain of defendant’s property (see NRS 453.301). Before resolution of criminal case, attorney general and defendant stipulated to settle civil forfeiture action upon payment by defendant to state of $30,000. District court adopted stipulation and dismissed civil action. Defendant then pleaded guilty to criminal charge and appealed conviction on ground that it violated proscription against double jeopardy set forth in U.S. 5th amendment (see Nev. Art. 1, § 8). Supreme court concluded that civil forfeiture action imposed punishment on defendant and, therefore, held that subsequent criminal conviction violated prohibition against double jeopardy and reversed conviction. Wright v. State, 112 Nev. 391, 916 P.2d 146 (1996)

Seizure of house by county without notice or hearing was violation of due process. Where county, pursuant to NRS 179.1165, seized house subject to forfeiture (see NRS 453.301) without notice or hearing on grounds that illegal drug activity was occurring at house and that such drug activity was threat to safety of neighborhood, seizure constituted violation of due process (see Nev. Art. 1, § 8). Government’s interest in seizing real property before forfeiture hearing rests in need to ensure that property is not sold, destroyed or used for illegal activity before forfeiture becomes final. Seizure of real property without notice or hearing can only occur under most exigent of circumstances. Mere proof of drug transactions is not in itself sufficient exigent circumstance. Rather, to justify such seizure, government would have to show that less restrictive measures, such as filing of notice of lis pendens or obtaining ex parte restraining order, would not suffice to protect government’s interest. Levingston v. Washoe County, 112 Nev. 479, 916 P.2d 163 (1996)

Civil forfeiture proceeding brought as separate action to criminal proceeding violated constitutional protection against double jeopardy. Where criminal defendants who had ownership interest in house were convicted of drug-related offenses which occurred in house, civil forfeiture action brought by county pursuant to NRS 453.301 seeking forfeiture of house was separate legal proceeding that subjected defendants to additional punishment for same unlawful activity and, therefore, violated double jeopardy clause of U.S. 5th amendment (see Nev. Art. 1, § 8). To impose punishment for same conduct in criminal and civil actions, both actions must occur in single proceeding. Otherwise, only first action brought will stand while second action brought will fall under weight of double jeopardy scrutiny. District court order granting forfeiture of house was reversed to extent that it deprived defendants of their ownership interest in house. Levingston v. Washoe County, 112 Nev. 479, 916 P.2d 163 (1996)

Reversible error to allow prosecutor repeatedly to refer to defense counsel’s failure to produce evidence or witnesses in support of defense theory of case. Where district court, over objection, allowed prosecutor during closing argument repeatedly to refer to defense counsel’s failure to produce evidence or witnesses in support of defense theory that defendant was not present when theft occurred and that another person was responsible for theft, court committed reversible error because prosecutor’s comments impermissibly shifted burden of proof to defense by implying that it was defendant’s burden to produce proof by explaining absence of witnesses or evidence. (See Nev. Art. 1, § 8.) Whitney v. State, 112 Nev. 499, 915 P.2d 881 (1996)

Defendant was denied effective assistance of counsel where lawyer failed to conduct reasonable investigation into testimony of witnesses as potential mitigating evidence in death penalty hearing. In penalty hearing for defendant convicted of murder, failure of trial counsel to conduct reasonable investigation of testimony of defendant’s family members and former teachers as potential mitigating evidence constituted ineffective assistance of counsel. (See U.S. 6th amendment and Nev. Art. 1, § 8.) Accordingly, defendant’s death sentence was reversed and case was remanded for new penalty hearing. Doleman v. State, 112 Nev. 843, 921 P.2d 278 (1996)

Constitutionality in death penalty case of precluding questions to potential jurors concerning anticipated legal instructions and hypothetical verdicts. In death penalty case, defendant challenged district court’s denial, pursuant to EDCR 7.70, of his request to ask potential juror if juror would still consider all sentencing alternatives if there was evidence that defendant had prior violent felony convictions, on basis that question was attempt to "death qualify" jury and preclusion of question violated his due process rights. Although defendant may ask potential juror whether juror would automatically vote for or against imposition of death penalty regardless of facts, provisions of EDCR 7.70, which preclude questions touching on anticipated instructions on law and on verdict juror would return based upon hypothetical facts, do not offend defendant’s due process rights (see Nev. Art. 1, § 8). Therefore, because question went well beyond determining whether potential juror would be able to apply law to facts of case, district court did not abuse its discretion in precluding question. Witter v. State, 112 Nev. 908, 921 P.2d 886 (1996)

Prisoner has no right to counsel in prison disciplinary hearing where conduct is not punishable offense under state law. Defendant sentenced to death for first degree murder argued that district court erred in penalty hearing held pursuant to NRS 175.552 by admitting into evidence fact that defendant was in possession of shank during his pretrial incarceration, because he was not allowed legal representation at disciplinary hearing in violation of his U.S. 6th amendment rights (see Nev. Art. 1, § 8). In affirming sentence, supreme court concluded that, although prisoner may have U.S. 6th amendment right to counsel at disciplinary hearing (see NRS 209.361) when charge involves conduct that is punishable under state law, defendant did not have right to counsel at disciplinary hearing because possession of shank was not punishable offense under laws of Nevada. Witter v. State, 112 Nev. 908, 921 P.2d 886 (1996)

Voluntary nature of incriminating statement not affected by defendant’s alleged withdrawal from nicotine. On appeal in death penalty case, defendant contended that incriminating statement which he made while in jail should have been excluded because at time statement was made he was suffering from substance withdrawal from nicotine and statement was involuntarily given in exchange for cigarettes. In finding contention to be without merit, supreme court found that nothing in record indicated that possible addiction to cigarettes affected defendant’s free will as he made statement. Therefore, supreme court concluded that statement was made voluntarily. (See Nev. Art. 1, § 8.) Sonner v. State, 112 Nev. 1328, 930 P.2d 707 (1996)

Defendant was not denied due process by district court’s refusal to provide for additional psychological testing to prove defense theory. Where defendant convicted of first degree murder had been examined by three psychiatrists in attempt to prove insanity defense, district court did not err in denying defendant’s motion for additional psychological testing. Although defendant argued that he was entitled to such additional testing pursuant to NRS 7.135 and that he had due process right (see Nev. Art. 1, § 8) to prove his insanity at time that he killed victim, defendant was not entitled to unlimited public expenditure to support his defense theory and he failed to demonstrate that he had need for additional testing. Sonner v. State, 112 Nev. 1328, 930 P.2d 707 (1996)

Comment by prosecuting attorney that facts on record were undisputed was not impermissible reference to defendant’s failure to testify on his own behalf. Defendant convicted of first degree murder appealed conviction on basis that prosecuting attorney violated defendant’s right not to testify guaranteed by U.S. 5th amendment (see Nev. Art. 1, § 8) when prosecuting attorney, during closing argument of guilt phase, made indirect references to defendant’s failure to testify on his own behalf. While indirect references to defendant’s failure to testify are constitutionally impermissible, prosecuting attorney in instant case made no allusion to defendant’s failure to testify, but rather merely drew jury’s attention to fact that essential facts of record were undisputed. Sonner v. State, 112 Nev. 1328, 930 P.2d 707 (1996)

Defendant was not denied due process by prosecutorial comment concerning failure of defendant’s mother to testify at penalty hearing. Defendant sentenced to death for first degree murder was not denied due process when, during closing argument in penalty hearing held pursuant to NRS 175.552, prosecuting attorney commented on failure of defendant’s mother to testify (see Nev. Art. 1, § 8). Although generally state may not comment on defendant’s failure to call witness, prosecuting attorney’s statement was not improper because fact that defense attorney had told jury in his opening statement that defendant’s mother would appear on defendant’s behalf opened door for prosecution to rebut testimony with implications concerning failure of mother to testify. Sonner v. State, 112 Nev. 1328, 930 P.2d 707 (1996)

Prosecutor’s argument that jury consider why defendant delayed claiming self-defense was not improper reference to defendant’s post-arrest silence.  Where prosecutor during closing argument asked jury to consider why defendant, after his arrest, waited until he was confronted by victims before claiming that victims had attacked him first, prosecutor’s argument was not improper reference to defendant’s post-arrest silence. Although, generally, use of defendant’s post-arrest silence to impeach exculpatory explanation subsequently offered by defendant at trial is impermissible comment on defendant’s right to remain silent (see Nev. Art. 1, § 8), in this case defendant himself did not testify, defense counsel elicited most of defendant’s post-arrest statements concerning self-defense from police officer on cross-examination and did not object to introduction by prosecution of additional statements by defendant, and it appeared that defense counsel wanted statements admitted into evidence to prove theory of self-defense. Quillen v. State, 112 Nev. 1369, 929 P.2d 893 (1996)

Improper admission of irrelevant evidence of constitutionally protected activities during guilt phase of capital murder case does not require automatic reversal. Defendant appealed his conviction of first degree murder on basis that district court erred by allowing state to argue during guilt phase, in violation of his U.S. 1st amendment rights, that defendant was involved in devil worship. Although admission of irrelevant evidence of activities that are constitutionally protected under U.S. 1st amendment is error, such error during guilt phase does not require automatic reversal because, during guilt phase, jury may not be influenced by improper character evidence since defendant’s character is not relevant except in expressly restricted circumstances. Because evidence of defendant’s guilt was overwhelming, admission of evidence of defendant’s association with devil worship was harmless error (see NRS 178.598) and did not violate defendant’s right to due process of law (see Nev. Art. 1, § 8). Therefore, conviction was upheld. Flanagan v. State, 112 Nev. 1409, 930 P.2d 691 (1996)

Conviction of second degree murder and child neglect did not violate double jeopardy clause. Conviction of defendant of second degree murder pursuant to NRS 200.030 and child neglect pursuant to NRS 200.508 after her infant child was severely abused by child’s father did not violate double jeopardy clause of U.S. 5th Amendment (cf. Nev. Art. 1, § 8) even though defendant was acquitted of crime of child abuse which arose from same incident. Jury did not err in finding, based on evidence or leniency, that defendant’s actions constituted child neglect but not child abuse. Labastida v. State, 112 Nev. 1502, 931 P.2d 1334 (1996)