Supreme Court of Nevada Finds Failure to Disclose Exculpatory Evidence to the Grand Jury Can Support a Motion to Dismiss

Pursuant to the Supreme Court’s opinion in United States v. Williams, 504 U.S. 36 (1992), a prosecutor has no duty under the U.S. Constitution to disclose exculpatory evidence to the grand jury. So, imagine that (1) Dana has been charged with Victoria’s murder; and (2) Alice, an alternate suspect has confessed to Victoria’s murder. A prosecutor in federal court or in most states would have no duty to disclose Alice’s confession to the grand jury.

Some states, however, have created a duty to disclose by state prosecutors. For example, Nevada Revised Statutes Section 172.145(2) states that “[i]f the district attorney is aware of any evidence which will explain away the charge, the district attorney shall submit it to the grand jury.” The recent opinion of the Supreme Court of Nevada in Dayani v. Eighth Judicial District Court in and for County of Clark, 554 P.3d 222 (Nev. 2024), provides a good example of this statute in action.

In Dayani,

Petitioner Fahd Dayani was on house arrest pending an unrelated trial. Pursuant to the terms of his house arrest, officers conducted a warrantless compliance check on his residence and found methamphetamine and heroin in a hallway bathroom. Dayani was arrested and charged with two counts of trafficking in a controlled substance. On the same day as Dayani’s arrest, his cousin, Alina Jagshi, made incriminating statements to police officers indicating that the drugs belonged to her rather than Dayani. Leading up to the grand jury proceedings regarding Dayani’s trafficking charges, Dayani’s counsel sent emails to the district attorney’s office bringing their attention to Jagshi’s apparent third-party confession, which he claimed was recorded on an officer’s body-worn camera.

After he was indicted, Dayani brought a motion to dismiss the indictment, arguing “that the State violated NRS 172.145(2) by failing to introduce exculpatory evidence, namely, the video recording of Jagshi’s confession, other evidence that may have corroborated the confession, and the existence of a second bathroom.”

The district court construed the motion to dismiss as a pretrial petition for a writ of habeas corpus and denied it as untimely. The Supreme Court of Nevada disagreed, concluding

that a challenge alleging a failure to submit exculpatory evidence under this statute is not a challenge to the sufficiency of the evidence to sustain the indictment. Rather, in cases in which we have concluded that the State violated NRS 172.145(2), we have considered whether the violation “irreparably impaired the independent function of the grand jury,”…which is a distinct inquiry from whether the State submitted sufficient evidence to sustain the indictment. A challenge under NRS 172.145(2) goes to the heart of the grand jury proceeding and asks whether the State has lived up to its mandate to ensure a fundamentally fair grand jury process. It is therefore a challenge “based on defects in the institution of the prosecution, other than insufficiency of the evidence to warrant an indictment.”…Thus, challenges alleging a failure of the State to submit exculpatory evidence may be properly brought through a motion to dismiss.

Here, Dayani’s motion to dismiss argued that the State violated NRS 172.145(2) by failing to present evidence of Jagshi’s confession, other evidence that may have corroborated the confession, and evidence of the existence of a second bathroom within Dayani’s residence. In essence, Dayani challenged the fairness of his grand jury proceedings, not whether the State’s submitted inculpatory evidence was sufficient to sustain the indictment. Consequently, the district court had a duty to review the allegations and dismiss the indictment if it concluded that the State did. in fact, violate NRS 172.145(2) in a manner requiring dismissal….By declining to consider the motion on its merits, the district court neglected its duty.

-CM