Procedure in capital proceedings

1. The scope and purposes of this rule. The provisions of this rule apply only in cases in which the death penalty is or may be sought or has been imposed, including proceedings for post-conviction relief from a judgment of conviction and sentence of death. This court places the highest priority on diligence in the discharge of professional responsibility in capital cases. The purposes of this rule are: to ensure that capital defendants receive fair and impartial trials, appellate review, and post-conviction review; to minimize the occurrence of error in capital cases and to recognize and correct promptly any error that may occur; and to facilitate the just and expeditious final disposition of all capital cases. 2. Appointment and qualifications of counsel. (a) Applicability. This section applies to all defense counsel including public defenders who are appointed to represent indigent persons in capital cases. (b) Trial counsel. Unless the district court determines pursuant to subsection (2)(e) that defense counsel otherwise has the competence to represent an indigent person in a capital case, an attorney appointed as lead counsel at trial at a minimum must have: (1) acted as lead defense counsel in five felony trials, including one murder trial, tried to completion (i.e., to a verdict or a hung jury); (2) acted as defense co-counsel in one death penalty trial tried to completion; and (3) been licensed to practice law at least three years. (c) Counsel in post-conviction proceedings in district court. Counsel appointed to represent a petitioner for post-conviction relief in the district court must have acted as counsel in at least two post-conviction proceedings arising from felony convictions and must otherwise satisfy the court that counsel is capable and competent to represent the petitioner. (d) Counsel on direct and post-conviction appeal. Counsel appointed to represent an appellant on direct or post-conviction appeal must have acted as counsel in at least two appeals of felony convictions and must otherwise satisfy the court that counsel is capable and competent to represent the appellant. (e) Exceptions. If an attorney does not satisfy the minimum requirements set forth in subsections (2)(b), (c), or (d) of this rule, or if the district court otherwise considers it warranted, the court shall hold a hearing to assess the attorney’s competence and ability to act as defense counsel. The court shall thoroughly investigate the attorney’s background, training, and experience and consult with the attorney on his or her current caseload. If satisfied that the attorney is competent and able to provide the representation, the court shall make that finding on the record and appoint the attorney. (f) Co-counsel. When the district court appoints defense counsel to provide representation at trial, it shall appoint two counsel, one of whom must be qualified under this rule to act as lead counsel in a capital case. When the court appoints defense counsel to provide representation in a direct appeal, a first post-conviction petition for a writ of habeas corpus, or an appeal from such post-conviction proceeding, the court may only appoint one counsel who is qualified under this rule. (g) Appointment of public defender. When the district court appoints an office of a public defender to provide representation in a capital case, any attorney assigned by the office to act as defense counsel shall prepare and file with the court the application form required by subsection (2)(h) of this rule. (h) Application forms and list of qualified counsel. Each judicial district shall maintain a list of qualified defense counsel and shall establish procedures to ensure that defense counsel are considered and selected for appointment to capital cases from the list in a fair, equal and consecutive basis. The judicial districts shall further arrange for the preparation and distribution of application forms to defense attorneys who wish to be included on the list. The forms must require specific information respecting the attorney’s qualifications to act as defense counsel in a capital case and a complete statement of any discipline or sanctions pending or imposed against the attorney by any court or disciplinary body. Before appointing any attorney to act as counsel in a capital case, the district court to which the case is assigned shall carefully consider the information in the attorney’s application form. 3. Duties and compensation of defense counsel. (a) Records of litigation. Defense counsel shall maintain contemporaneous records of all work performed while serving as trial counsel, appellate counsel, or post-conviction counsel, including time records, communications with the client, expert witness reports, witness statements, investigations, and the rationale for strategic decisions. Defense counsel shall file with the district court an affidavit certifying that counsel has maintained and retains the record required by this subsection within 30 days after any of the following events: (1) the district court’s imposition of the death sentence, (2) the district court’s entry of an order resolving a post-conviction matter, or (3) the supreme court’s entry of a written decision finally resolving an appeal. Defense counsel shall retain either the original record or a copy until the court authorizes its disposal. (b) Providing files to successor counsel. If for any reason defense counsel is unable to continue to represent a capital case client prior to concluding the representation for which counsel was appointed, defense counsel’s case files and copies of counsel’s records of litigation must be provided to successor counsel. Defense counsel shall not be permitted to withdraw until successor counsel has been retained or appointed and the files have been delivered to the successor. Withdrawing counsel shall thereafter promptly file a notice of the disposition of the files with the clerk of the district court and serve a copy of the notice on the prosecutor. If defense counsel at trial is permitted to withdraw after trial from representing the defendant on appeal, counsel shall have 30 days from the date of withdrawal within which to prepare a memorandum for appellate counsel detailing each arguable issue on appeal with appropriate specific citations to the pertinent parts of the record. (c) Compensation of counsel and defense costs. Appointed defense counsel must be compensated for all time reasonably spent on a case and must be reimbursed for all expenses reasonably incurred. The court shall conduct ex parte proceedings to authorize employment and payment of investigative, expert, or other services for the defense, and the transcript of such proceedings must be placed in the record under seal. 4. Proceedings before trial. (a) Proceedings by criminal complaint. When the state seeks to initiate a charge of open or first-degree murder by the filing of a criminal complaint, unless the state declares at the defendant’s first appearance before a magistrate pursuant to NRS 171.178 that it will not seek the death penalty, the magistrate shall appoint one attorney to serve as defense counsel during the preliminary hearing if the defendant is indigent. Appointed counsel must possess the qualifications specified in subsection 2(b) of this rule. (b) Proceedings by indictment. When the state seeks to initiate a charge of open or first-degree murder by indictment, the state shall, together with the notice required by NRS 172.241 (2), notify the person whose indictment will be considered that if the person is indigent, he or she may request the court to appoint defense counsel prior to the commencement of the grand jury proceedings. This notice is required unless: (i) the district court finds adequate cause to withhold notice under NRS 172.241 ; (ii) the state declares that it will not seek the death penalty; or (iii) the state is unable, after reasonable diligence, to locate or notify the person. Upon the person’s request, the district court shall appoint one attorney to serve as defense counsel prior to and during the grand jury proceedings. Appointed counsel must possess the qualifications specified in subsection 2(b) of this rule. (c) Notice of intent after filing of indictment or information. No later than 30 days after the filing of an information or indictment, the state must file in the district court a notice of intent to seek the death penalty. The notice must allege all aggravating circumstances which the state intends to prove and allege with specificity the facts on which the state will rely to prove each aggravating circumstance. A defendant may extend the time in which the state must file a notice of intent to seek the death penalty by filing a written waiver no later than 30 days after the filing of an information or indictment. The purpose of allowing for this waiver is to provide additional time to gather potential mitigation evidence. Mitigation evidence may be provided to the state at the defendant’s discretion to assist the state in its determination to file a notice of intent to seek the death penalty. If a written waiver has been filed, the state must file a written reservation of the right to seek the death penalty no later than 30 days after the filing of the waiver and a notice of intent to seek the death penalty no later than 180 days after the filing of the waiver. (d) Late notice of intent. Upon a showing of good cause, the district court may grant a motion to file a late notice of intent to seek the death penalty or of an amended notice alleging additional aggravating circumstances. The state must file the motion within 15 days after learning of the grounds for the notice or amended notice. If the court grants the motion, it shall also permit the defense to have a reasonable continuance to prepare to meet the allegations of the notice or amended notice. The court shall not permit the filing of an initial notice of intent to seek the death penalty later than 30 days before trial is set to commence. (e) Withdrawal of notice. The state may at any time declare that it will not seek the death penalty or withdraw its notice of intent to seek the death penalty, and the provisions of this rule will no longer apply. The state also may at any time withdraw an allegation of an aggravating circumstance. (f) Filing of notice of evidence in aggravation. The state must file with the district court a notice of evidence in aggravation no later than 15 days before trial is to commence. The notice must summarize the evidence which the state intends to introduce at the penalty phase of trial, if a first-degree murder conviction is returned, and identify the witnesses, documents, or other means by which the evidence will be introduced. Absent a showing of good cause, the district court shall not admit evidence not summarized in the notice. If the court determines that good cause has been shown to admit evidence not previously summarized in the notice, it must permit the defense to have a reasonable continuance to prepare to meet the evidence. 5. Procedure at trial and post-conviction proceedings. (a) Calendar priority and transcripts. The district court shall give capital cases calendar priority and conduct such proceedings with minimal delay. The court shall ensure that all proceedings in a capital case are reported and transcribed, but with the consent of each party’s counsel the court may conduct proceedings outside the presence of the jury or the court reporter. If any objection is made or any issue is resolved in an unreported proceeding, the court shall ensure that the objection and resolution are made part of the record at the next reported proceeding. (b) Duties of court reporters. Court reporters shall give priority to transcripts of pretrial proceedings in capital cases. As prescribed by the district court, reporters shall furnish such transcripts to the court and counsel prior to trial. During trial or post-conviction proceedings, reporters shall prepare a daily transcript of all proceedings and deliver it to the court and counsel. (c) Audio recording. If audio recording equipment is available, the district court may employ audio recordings as backup to or in lieu of a court reporter. If audio recording is used in lieu of a court reporter, the person responsible for the recording shall: give priority to transcripts of pretrial proceedings in capital cases; furnish, as prescribed by the district court, such transcripts to the court and counsel prior to trial; and prepare, during trial or post-conviction proceedings, a daily transcript of all proceedings and deliver it to the court and counsel. (d) Transcription of audio or video recorded evidence. If an audio or video recording which includes spoken language is played as evidence, the court shall ensure that the spoken language is transcribed as part of the record. Alternatively, if all parties agree that a transcript of the spoken language prepared by a party is accurate, the court may order that the record include that transcript; if the parties cannot agree on the accuracy of a proposed transcript, each party may offer a transcript which the court shall include in the record. 6. Procedure on direct appeal from judgment of conviction and sentence of death. (a) Docketing of appeal. When the district court enters a written judgment of conviction imposing a sentence of death, the clerk of the district court shall immediately transmit to the clerk of the supreme court two certified, file-stamped copies of the following documents: (1) the written judgment signed by the judge and filed by the district court clerk; (2) the notice of appeal, if any; (3) the district court docket entries; (4) the minutes of the district court proceedings; and (5) a list of exhibits offered into evidence, if any. Upon receipt of these documents, the clerk of the supreme court shall docket the appeal and immediately give notice to all parties of the date on which the appeal was docketed. (b) Time for filing record on appeal. On direct appeal from a judgment of conviction and sentence of death, the clerk of the district court shall file a certified copy of the record on appeal with the clerk of the supreme court no later than 30 days after entry of the judgment of conviction and imposition of sentence. If the district court clerk cannot timely transmit the record, the clerk shall seek an extension of time from the supreme court. (c) Form and contents of direct appeal record. On direct appeal from a judgment of conviction and sentence of death, the clerk of the district court shall transmit as the record on appeal a certified copy of the complete record made and considered in the court below. The complete record shall include, without limitation, certified copies of: any criminal complaint, indictment or information (including any amendments); all papers, motions, petitions, oppositions, responses, replies, orders, opinions, and documentary evidence or exhibits filed in the lower courts; transcripts of all lower court proceedings; all jury instructions offered, excluded or given; all verdicts or findings of fact, conclusions of law, and decisions; the lower court minutes; any notices of appeal. No physical evidence or exhibits shall be transmitted absent an order of the supreme court. The record shall be assembled, paginated, and indexed in the same manner as an appendix to the briefs under NRAP 30 (c). No designation of record is required. The clerk of the district court shall retain the original record. All questions as to the filing, form, and content of the record on appeal shall be presented to the supreme court. (d) Filing and service of briefs. On direct appeal from a judgment of conviction and sentence of death, appellant shall serve and file the opening brief within 70 days from the date that the record on appeal is filed in the supreme court. Respondent shall serve and file the answering brief within 60 days after service of the opening brief. Appellant shall serve and file the reply brief within 45 days after service of the answering brief. (e) Extensions of time. The supreme court may grant an initial extension of time of up to 60 days to file a brief upon a showing of good cause, but shall not grant additional extensions of time except upon a showing of extraordinary circumstances and extreme need. (f) Oral argument. The supreme court shall determine whether oral argument is warranted and shall enter an appropriate order respecting the time and place of argument. Unless otherwise ordered by the court, the oral argument will be limited to 60 minutes and will proceed in accordance with NRAP 34 . The court may in its discretion hold oral argument during the summer recess when deemed necessary. 7. Procedure in post-conviction appeals. (a) Docketing of appeal; general procedure. On appeal from a judgment or order resolving an application for post-conviction relief, except as otherwise specifically provided in this rule, the appeal shall be docketed and shall proceed in accordance with the ordinary procedures specified in the Nevada Rules of Appellate Procedure. The fast track provisions of NRAP 3C , however, shall not apply in capital cases. (b) Record on appeal. Unless otherwise ordered by the supreme court, the clerk of the district court shall retain the original record of the proceedings and shall not transmit a record on appeal to the supreme court. When the supreme court deems it necessary to review the district court record, the clerk of the district court shall assemble and transmit to the clerk of the supreme court in accordance with NRAP 11 such portions of the record designated by the supreme court. In lieu of a record on appeal, the parties shall file an appendix or appendices as specified in the Nevada Rules of Appellate Procedure. (c) Filing and service of briefs. Briefing shall proceed in accordance with NRAP 28 through 32 , inclusive. (d) Extensions of time. The supreme court may grant an initial extension of time of up to 60 days to file a brief upon a showing of good cause, but shall not grant additional extensions of time except upon a showing of extraordinary circumstances and extreme need. (e) Oral argument. Post-conviction appeals shall stand submitted for decision on the briefs and appendices without oral argument unless the court otherwise orders. 8. Miscellaneous procedures on appeal. (a) Prebriefing conferences. Upon the docketing of any appeal (direct or post-conviction) involving imposition of the death penalty, the supreme court may schedule a prebriefing conference at which a designee of the court shall preside. The parties’ counsel and any other persons the court may designate shall attend. At the direction of the court, counsel for appellant shall file with the court and serve on respondent a prebriefing memorandum of no more than 10 pages, outlining the major issues, with relevant facts, which appellant intends to raise on appeal. At the direction of the court, counsel for respondent shall file and serve on appellant an answering memorandum of no more than 10 pages, stating respondent’s position on the issues and facts outlined by appellant and any other issues which respondent considers important. Failure to include an issue in the memoranda will not preclude a party from raising the issue in the opening or answering briefs. The following matters may be considered at the conference: the contents, preparation, and transmission of the record or appendices; the scheduling and conduct of oral argument; stipulations of fact; simplification of issues; and any other matters that may facilitate the just and expeditious resolution of the appeal. (b) Limited remand to district court. If the supreme court determines that any matter requires further clarification or that additional proceedings in the district court would assist in the resolution of the appeal, it may remand the case to the district court for supplementary proceedings. The supreme court shall retain jurisdiction over an appeal remanded under this subsection and may take any action deemed warranted despite the issuance of a limited remand. 9. Filing of biannual status reports of cases where death penalty was imposed. Commencing in February 1999, the attorney general and the district attorney of each county shall file a biannual death penalty report with the clerk of the supreme court no later than the first judicial day in February and July of each year. The reports must identify all state and federal actions in which the State of Nevada is a party to an action involving a person who has been sentenced in state court to receive the death penalty. The reports must indicate: (1) the case caption and number and the court in which the action is pending; (2) the date upon which the action commenced and the length of time it has been pending; (3) a short description of the action, e.g. , state or federal post-conviction petition for a writ of habeas corpus; (4) the scheduled date of execution, if any; and (5) any stay of execution, the court that issued the stay, the date upon which the stay became effective, and the duration of the stay. Within 20 days after entry of a final judgment or order resolving an action subject to this subsection, counsel for the state shall file with the clerk of the supreme court written notice of entry of the judgment or order. The notice shall include a certified, file-stamped copy of the judgment or order. 10. Notice to supreme court of entry of warrants of execution, execution dates, and stays of execution. (a) Notice of warrant of execution. Immediately upon the issuance of any warrant of execution, counsel for the state shall file with the clerk of the supreme court written notice of issuance of the warrant. The notice must be transmitted to the clerk of the supreme court for filing by telephonic transmission to the telefax machine situated in the Office of the Clerk of the Supreme Court in Carson City. Counsel shall advise the clerk telephonically before transmitting the notice and shall submit an original of the document for filing within 3 judicial days of telephonic transmission. Counsel shall also provide notice of the issuance of a warrant of execution to the Director of the Department of Prisons. (b) Notice of date of execution. Immediately upon the scheduling of a specific date of execution by execution order or otherwise, the Director of the Department of Prisons shall notify the clerk of the supreme court of the scheduled execution date. The notice must be transmitted to the clerk of the supreme court for filing by telephonic transmission to the telefax machine situated in the Office of the Clerk of the Supreme Court in Carson City. The director shall advise the clerk telephonically before transmitting the notice and shall submit an original of the document for filing within 3 judicial days of telephonic transmission. (c) Notice of entry of stay of execution. Immediately upon the issuance of a stay of execution by any court other than the supreme court, counsel for the state shall file with the clerk of the supreme court written notice of entry of the stay. The notice must be transmitted to the clerk of the supreme court for filing by telephonic transmission to the telefax machine situated in the Office of the Clerk of the Supreme Court in Carson City. Counsel shall advise the clerk telephonically before transmitting the notice and shall submit an original of the document for filing within 3 judicial days of telephonic transmission. Counsel for the state shall also provide immediate notice of any stay issued by any court, including the supreme court, to the Director of the Department of Prisons. (d) Notice of intent to seek stay of execution from supreme court: duty of defense counsel. Defense counsel shall file any motion seeking a stay of execution from the supreme court promptly upon learning the grounds to be asserted in support of the motion. Defense counsel shall telephonically provide advance notice to the clerk of the supreme court of counsel’s intent to file a motion for a stay so that the court may make arrangements to assure that the motion is given prompt and thorough consideration. The supreme court may impose sanctions on defense counsel if it plainly appears that the grounds asserted in support of a motion for a stay of execution were known or should have been known to counsel well in advance of the filing of the motion. 11. Checklist of issues. A checklist of issues shall be published with this rule and periodically updated by the supreme court. The checklist shall contain citations intended to provide guidance regarding issues relevant to criminal proceedings, particularly capital cases. The list is not comprehensive, is not an authoritative statement of the law, and is not to be cited as authority. It is simply a reference guide providing a starting point for legal research. 12. Effective date of this rule. The provisions of this rule apply to all capital cases pending on or commenced after the effective date of the rule. For the purposes of this section, a case commences when the state formally charges a person with murder or serves a person with notice that an indictment for murder is being considered or when a person sentenced to death files an application for post-conviction relief. The provisions of this rule shall govern all further proceedings in actions pending in the supreme court on the effective date, unless in the opinion of the court their application in a particular pending action would not be feasible or would work an injustice, in which event the former procedure applies. [Amended; effective July 8, 2019.]