When A Defendant Forfeits The Right To Confront Witnesses

Below is an excellent article detailing the events that took place as the Nevada Supreme Court set an important precedent for domestic violence prosecutors. This article was written by Chad Pace, who was the lead domestic violence prosecutor in Lyon County and is now a deputy district attorney in Douglas County. He is a member of the State Bar of Nevada's Continuing Legal Education Committee and is admitted to practice in New Jersey, Pennsylvania and Nevada. He'd rather be skiing in The Right To Confront Witnesses.                             

When A Defendant Forfeits The Right To Confront Witnesses

The U.S. Supreme Court first considered the forfeiture doctrine in the 1878 case,   Reynolds v. United States.           1In   Reynolds, an accused polygamist concealed one of his wives to preclude subpoena service. The court held that Reynolds forfeited his Confrontation Clause rights, and the court admitted the wife's prior testimony into evidence.           2The court stated, "The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away."                                       

More than 140 years later, the Nevada Supreme Court took its first look at the forfeiture doctrine.   State v. Anderson recognized, "a defendant may forfeit the right to confrontation. In particular, 'one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.'"       3                                   

"No Face, No Case." Chronic Witness Tampering is Widespread in Domestic Violence Prosecution

Prosecutors and advocates have known for many years that witness tampering is a significant problem in domestic violence cases, and that victims recant or refuse to appear at trial because of a perpetrator's threats of retaliation. The U.S. Supreme Court recognized that domestic violence is a crime "notoriously susceptible to intimidation or coercion of the victim to ensure she does not testify at trial."           4As many as 80 percent of domestic violence victims recant initial accounts of abuse and do not participate in prosecution after a batterer's interjection and influence.           5                             

After batterers dissuade their victims' appearance, prosecutors must often proceed to trial without the victim's participation.   Nevada Revised Statue 200.485(9) requires prosecutors move forward with a case even without victim testimony unless the prosecutor knows the case cannot be proven or that the arrest was not supported by probable cause. Victims cannot "drop the charge" in Nevada. Thus, many cases move forward without victim participation. Photos, nontestimonial statements and medical records are often powerful evidence regardless of the victim's ability to participate in the case. Nonetheless, juries want to hear from the victim.           7                             

The victim's problematic absence is compounded by the Confrontation Clause. Face-to-face confrontation is the cornerstone of Sixth Amendment Confrontation Clause jurisprudence.       8Without the victim's presence, her prior statements to law enforcement and investigators are most often barred from evidence by the Confrontation Clause. Thus, the jailhouse slang saying "no face, no case" holds true for the majority of cases. Defendants have every incentive to preclude their victim's testimony at trial.              

Beyond Violence: The Soft-Touch Approach in The Right To Confront Witnesses

Perhaps surprisingly, batterers rarely use direct threats to influence and dissuade victims. Batterers tamper with victims often via phone calls, letters and text    [*19] messages from jail.       9In a recent study of 25 heterosexual couples, in which the male perpetrator was detained for felony domestic violence, only one perpetrator directly threatened the victim. Instead, batterers regularly use sophisticated, psychological strategies to persuade their victim not to testify.       10For example, batterers instruct victims on what should be said in court or done before prosecution. Batterer's instruction is a "minimization" technique used to downplay the abuse, evoke sympathy and encourage the victim's recantation. The soft touch is used more often and is more effective than a direct threat. A perpetrator's repetitious minimization influences the victims into re-defining the abuse narrative, recanting prior statements and refusing to appear at trial.         

Attempted Murder and Witness Tampering in Anderson of The Right To Confront Witnesses

The Nevada Supreme Court considered the forfeiture doctrine in   State v. Anderson. The state represented that the defendant procured a witness's absence via a call from a jail telephone by telling her to disappear and to leave her phone to avoid authorities tracking her. The state then moved to introduce the witness's out-of-court statements to the investigator. The defendant, proceeding pro per, objected. The district court concluded that the jail call was sufficient evidence to prove the defendant intended to procure the witness's absence, and the defendant forfeited his Confrontation Clause rights. The Nevada Supreme Court heard the case on appeal.              

Nevada Supreme Court Adopted the Modern, Majority View of Burden of Proof in Forfeiture Doctrine                             

To prove forfeiture, the state must show that the defendant intended to prevent a witness from testifying. Federal and state courts split concerning the applicable burden of proof, which the state must satisfy to show the defendant's intent. Specifically, the courts have split on whether the appropriate standard of proof is the higher burden of clear and convincing evidence or the lower burden of a preponderance of evidence. Last year, in   Anderson, the Nevada Supreme Court specifically addressed this issue as a matter of first impression. Writing for the majority, Justice Lidia Stiglich unequivocally sets forth, "the preponderance standard provides the appropriate burden of proof for purposes of the forfeiture-by-wrongdoing exception to the Confrontation Clause."           12The forfeiture doctrine is born of equity because "no one shall be permitted to take advantage of his own wrong."          

 Importantly, Justice Stiglich recognized that violence and threats are a rare form of witness tampering. Her opinion does not reference any such specific conduct. Instead, the court maintains fidelity to the law and discusses only the accused's "wrongdoings."              

A New Opportunity for Domestic Violence Prosecutors                             

Although   Anderson was not a domestic violence case, the decision is important precedent for domestic violence prosecution. Batterers will no longer benefit from their threats, instructions and soft-touch persuasion. The Nevada Supreme Court has signaled to prosecutors that the forfeiture doctrine is a viable tool. Batterers who not only threaten, but also use soft-touch dissuasion to preclude victim testimony, can foresee courts admitting victim statements into evidence notwithstanding the victim's absence at trial. "No face, no case" is not a maxim batterers can rely upon after forfeiting Confrontation Clause rights.  


Author: Chad Pace

Reynolds v. United States, 98 U.S. 145, 159, 25 L.Ed. 244 (1879)).

Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Davis v. Washington, 547 U.S. 813, 833, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)

Davis v. Washington, 126 S.Ct. 2266, 165 L Ed.2d 224, 2006)

Chavez v. State, 125 Nev. 328, 337, 213 P.3d 476, 483 (2009)     

447 P.3d 1072, 1076 (2019)

Reynolds v. United States, 98 U.S. 145, 158-59, 25 L.Ed. 244 (1879))

Can You Be Charged with Second-Degree Murder for a DUI Resulting in Death

The Nevada Supreme Court has consistently held that Nevada's DUI statute provides the exclusive punishment for non-intentional deaths resulting from intoxicated driving in Murder for a DUI Resulting in Death.  See, Sheriff, Douglas County v. La Motte, 100 Nev. 270, 680 P.2d 333, 334 1984, which declined to extend liability for second degree murder to deaths resulting from drunk driving because "the Nevada Legislature has set the punishment for killing or seriously injuring another while driving a vehicle under the influence of intoxicants" and judicial "[e]xpansion of the range of punishments for those drunk drivers who kill fellow motorists would constitute an impermissible judicial excursion into the legislature's domain"); Johnston, 101 Nev. at 95, 692 P.2d at 1308 ("it is improper to charge second degree murder for a death resulting from drunk driving")

However, the Nevada Supreme Court has never directly addressed whether Nevada's reckless driving statute similarly preempts a second-degree murder charge. This issue came to a head in the case of Leavell v. Eighth Judicial Dist. Court of Nev., 2020 Nev. Unpub. LEXIS 851, 471 P.3d 749, 2020 WL 5543073 Mr. Leavell contended that the two statutes collectively preempt a charge of second-degree murder based on allegations of reckless driving combined with DUI.

The Clark County District Attorney’s Office (State) wholly disagreed with Mr. Leavell’s contention of the reckless driving statute pre-emption of a second-degree murder charge.  In fact, there were four other active second-degree DUI/reckless driving cases pending during Mr. Leavell’s challenge:

The State charged murder in Aylin Alderette, 111 miles per hour, running through stop lights, weaving around traffic, and killed an eight-year-old in a school zone. The State charged murder.  

In Mr. Buckingham, the case from Boulder City, 137 miles per hour of his own admission, killed a man on a Wednesday morning in the middle of the street on a 45 mile per hour zone.

The State charged murder on Jonathan Mora, 117 miles per hour, 11 p.m. near a park in the dark, killed the kid inside his car.

The State charged murder on Jorge Cardenas, a man who was fleeing the scene of another collision while he also happened to be intoxicated and killed a man at 80 miles per hour in a bike zone.

Nevada's General Murder Statute in Murder for a DUI Resulting in Death

Nevada's general murder statute was enacted in 1911. See NRS 200.010, added by C&P (1911), § 119. The statute defines murder as "the unlawful killing of a human being . . . [w]ith malice aforethought, either express or implied." NRS 200.010. "Express malice" is defined as "that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof." NRS 200.02(1). Express malice requires a specific "intent to kill". Keys v. State , 104 Nev. 736, 740 766 P.2d 270, 272 (1988). Where a specific "intent to kill" is present, a defendant may properly be charged with first-degree murder. See NRS 200.030(l)(a) ("willful, deliberate and premeditated killing" is murder in the first degree). 

By contrast, "implied malice" is said to exist "when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart." NRS 200.020(2). Implied malice "does not necessarily import ill will toward a victim, but signifies general malignant recklessness of others' lives and safety or disregard of social duty." Keys, 104 Nev. at 740, 766 P.2d at 271. Implied malice, or that "malignant disregard and recklessness concerning the life and safety of another" is the mens rea required to sustain a charge of second-degree murder. Id. Second-degree murder is category A felony that carries two possible sentences: 10-years-to-life, or 10-25 years. NRS 200.030(5). By statute, a person who is convicted of second-degree murder "shall" be sentenced to one of these two terms. NRS 200.030(5).

Pursuant to these general statutes, Mr. Leavell was charged with second-degree murder for causing the death of Mr. Villicana, by:

Entering [his] 2014 Chevrolet Camaro and driving away from his residence while violating various traffic laws, including but not limited to accelerating to speeds in excess of 100 miles per hour over the 25 miles per hour posted speed limit in a residential neighborhood and/or failing to stop at a stop sign, all of which was exacerbated by the Defendant's impairment from his use of Marijuana.

Nevada's Specific DUI/Reckless Driving Statutes in Murder for a DUI Resulting in Death

In 1969, Nevada's legislature enacted comprehensive "Rules of the Road". See Compiled Legislative History for A.B. 271.  The purpose of these rules was to "(establish traffic laws which are uniform throughout the State of Nevada, whether or not incorporated into local ordinances" and to "(minimize the differences between the traffic laws of the State of Nevada and those of other states."  See  NRS 484A.005 (this purpose applies to NRS 484A-484E, inclusive).

As originally enacted, the Rules of the Road did not cover deaths resulting from DUI or reckless driving.  However, in 1973, Nevada's Legislature amended the Rules of the Road to criminalize DUI causing death. See NRS 484C.430, added by Laws 1973, p. 447; see also Compiled Legislative History for A.B. 218.  And in 1981, Nevada's Legislature amended the Rules of the Road to criminalize reckless driving causing death. See NRS 484B.653, as amended by Laws 1981, p. 1924 in this article Murder for a DUI Resulting in Death.

https://www.leu.state.nv.us/Division/Research/Librarv/LeizHistorv/LHs/1973ZAB218.1973.pdf (last visited 10/21/19).

The crime of DUI causing death is set forth in NRS 484C.430(1). That statute provides for a maximum penalty of "not more than 20 years" in prison as follows:

Unless a greater penalty is provided pursuant to NRS 484C.440, a person who:. . .

(d) [i]s under the influence of a controlled substance . . .


(f) [h]as a prohibited substance in his or her blood or urine, as applicable, in an amount that is equal or greater than the amount set forth in subsection 3 or 4 of NRS 484C.110, and does any act or neglects any duty imposed by law while driving or in actual physical control of any vehicle on or off the highways of this State, if the act or neglect of duty proximately causes the death of, or substantial bodily harm to, another person, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years . . .

NRS 484C.430(1) 

The crime of reckless driving is set forth in NRS 484B.653(1). That statute makes it "unlawful for a person" to "[d]rive a vehicle in willful or wanton disregard of the safety of persons or property on a highway or premises to which the public has access." NRS 484B.653(l)(a). The statute also criminalizes "unauthorized speed contest[s]" and "trick driving display[s]." NRS 484B.653(l)(b)-(e)

However, when death results from any of these forms of reckless driving, the maximum penalty is "not more than 6 years" in prison:

Unless a greater penalty is provided pursuant to subsection 4 of NRS 484B.550, a person who does any act or neglects any duty imposed by law while driving or in actual physical control of any vehicle on a highway or premises to which the public has access in willful or wanton disregard of the safety of persons or property, if the act or neglect of duty proximately causes the death of or substantial bodily harm to another person, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years and by a fine of not less than $ 2,000 but not more than $ 5,000.  NRS 484B.653(9)

The Nevada Supreme Court Ruling

The Court ruled that although malice may be inferred from the facts of this case, which would support a charge of second-degree murder, the Legislature has preempted such a charge for cases of non-intentional vehicular homicide. See NRS 484B.657. As we likewise held in Sheriff v. LaMotte, 100 Nev. 270, 272-73, 680 P.2d 333, 334 (1984), and confirmed in Johnston v. State, 101 Nev. 94, 95, 692 P.2d 1307, 1308 (1985), the State may not charge a defendant with second-degree murder for a death resulting from driving under the influence. The district court nonetheless allowed the State to do so here, so it erred in interpreting and applying those holdings, which was a manifest abuse of discretionState v. Eighth Judicial Dist. Court (Armstrong), 127 Nev. 927, 932, 267 P.3d 777, 780 (2011).

Since there is no intent involved in killing someone while driving while impaired, the District Attorney could not seek second-degree murder charges against drunk drivers who cause another person’s death in a car accident.  The State can still pursue charges pursuant to NRS 484C.430 which has a penalty between 2 to twenty years in prison and between a $2,000 and $5,000 fine.  

Contact A Las Vegas DUI Attorney Today

If you were charged with a DUI related offense you need skilled legal representation.  Our team at the Spartacus Law Firm is experienced in handling all aspects of a DUI case and will aggressively protect your rights to the fullest extent under law.  Contact us today at 702-660-1234 for a free consultation in Murder for a DUI Resulting in Death.

What Happens to Nurses Who Get a DUI? Nevada Board of Nursing DUI Protocols

nurse facing dui charge

Driving under the influence of drugs, alcohol, and other controlled substances is a serious charge in the state of Nevada. Offenders of DUI often face harsh penalties such as high fines, possible jail time, revoked driver’s licenses, community service, and mandatory treatment. For nurses who are charged with DUI, the penalties may be even more severe, possibly resulting in devastating complications regarding their careers. 

Even first-time criminal offenses can affect a nurse’s license depending on the severity of the crime and the circumstances surrounding the offense. While DUI charges are taken very seriously in Nevada, the state also recognizes the need to help those struggling with substance abuse, especially nurses. So, if you’re wondering “can you have a DUI and be a nurse?”, or “can a DUI affect your nursing license?” read below to learn more.    

How Does a DUI Charge Affect Nurses Who Get a DUI in Nevada?

Due to the nature of a nurses’ responsibilities, they are held to high standards of accountability and professionalism. Chapter 632.120 of the Nevada Revised Statutes (NRS) discusses nursing in the state of Nevada which includes proper conduct, duties, and regulations. These statutes help determine whether an applicant meets the criteria to hold a nursing license in Nevada. As part of this statute, all eligible nursing applicants are required to disclose any and all criminal convictions, including DUI misdemeanors or felonies in the application process. 

According to Nevada law, a nurse that has been convicted of a misdemeanor who fails to disclose such information in their license application may have their license denied or revoked by the Board of Nursing for fraudulent or false representation. Several considerations will come into play to determine the licensee’s outcome. Not only will the Board weigh the nurse’s risk to themselves as well as public safety, but they will also consider the following conditions:

Can You Have a DUI And Be a Nurses Who Get a DUI?

In short, the answer is yes, you can have a DUI and be a nurse in Nevada. However, that doesn’t guarantee that the Board of Nursing will allow you into the field or approve your license to do so. As stated above, many factors are taken into consideration when deciding if an applicant with a misdemeanor DUI charge is eligible to become a registered nurse. Even if a nurse charged with DUI is approved by the Board, it’s likely that they will face certain repercussions in order to continue practicing. 

Can a DUI Affect Your Nursing License?

DUI charges come with a variety of penalties set forth and enforced by the law. Nurses who are convicted of DUI will face such penalties along with additional disciplinary action from the Board of Nursing. Penalties will vary case by case and are determined and agreed upon by the Board. Discipline from the Board may include:

What Happens If a Nurse Doesn’t Report a DUI Charge to the Board of Nursing?

It is the responsibility of the nurse to report and disclose all criminal convictions, including a DUI charge. Trying to keep such information from the Board or your employer may result in serious repercussions, more so than if you simply tell the truth about your crime. Remember, just because you don’t tell the Board about your charges doesn’t mean that they won’t find. In some cases, law enforcement may report the incident to your employer or office talk may get around to the wrong person. The best thing you can do is be honest about your convictions, and request legal aid from a qualified Nevada DUI attorney.

Contact a Nevada DUI Attorney Today 

Spartacus Law Firm will fight to make sure that your rights are protected. A DUI is a serious legal matter and should be handled by a serious legal defense team. We will aggressively represent you to avoid penalties, fines, and damage to your nursing career. Contact us today for a free in-person or virtual consultation. We are available 24/7 to assist.

For a FREE initial consultation, call (702) 660-1234.