[Rev. 11/21/2013 8:56:52 AM--2013]

CHAPTER 16 - DATE OF TRIAL; TRIAL BY JURY; MASTERS

DATE OF TRIAL

NRS 16.010             Motion to postpone trial on ground of absence of evidence.

NRS 16.020             Depositions of witnesses in case of postponement; actions involving title to mining claims.

NRS 16.025             Preferences in setting date for trial: Party 70 years of age or older; party seriously ill; defendant convicted of crime punishable as felony.

TRIAL BY JURY

NRS 16.030             Drawing and examination of jurors; administration of oath or affirmation.

NRS 16.040             Challenges to jurors; peremptory challenges.

NRS 16.050             Grounds for challenges for cause.

NRS 16.060             Challenges for cause tried by court.

NRS 16.070             Jury to be sworn; court may order jury into custody of officer.

NRS 16.080             Discharge and replacement of jurors who become unable or disqualified to perform duties.

NRS 16.090             Order of proceedings after jury has been sworn.

NRS 16.100             Jury may view property or premises.

NRS 16.110             Instructions to jury.

NRS 16.120             Deliberation of jury: How and where conducted.

NRS 16.130             Jury may take papers, materials and notes of testimony when retiring for deliberation.

NRS 16.140             Jury may come into court for further instructions.

NRS 16.150             Action may be tried again when jury discharged or prevented from giving verdict.

NRS 16.160             Court may adjourn from time to time while jury absent; sealed verdict.

NRS 16.170             Verdict of jury.

NRS 16.180             Proceedings when verdict informal.

NRS 16.190             Polling jury; recording verdict and discharging jury.

MASTERS

NRS 16.200             Two of three masters may act.

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DATE OF TRIAL

      NRS 16.010  Motion to postpone trial on ground of absence of evidence.  A motion to postpone a trial, on the ground of the absence of evidence, shall only be made upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it. The court may also require the moving party to state upon affidavit the evidence which the moving party expects to obtain; and if the adverse party thereupon admit that such evidence would be given and that it be considered as actually given on the trial, or offered and overruled as improper, the trial shall not be postponed.

      [1911 CPA § 260; RL § 5202; NCL § 8758]

      NRS 16.020  Depositions of witnesses in case of postponement; actions involving title to mining claims.

      1.  The party obtaining the postponement of a trial shall also, if required by the adverse party, consent that the testimony of any witness of such adverse party who is in attendance be then taken by deposition before a judge or clerk of the court in which the case is pending, or before such notary public as the court may indicate, which shall accordingly be done, and the testimony so taken may be read on the trial, with the same effect, and subject to the same objections, as if the witness were produced.

      2.  In actions involving the title to mining claims, if it be made to appear to the satisfaction of the court that in order that justice may be done, and the action fairly tried on its real merits, it is necessary that further development should be made, and that the party applying has been guilty of no laches and is acting in good faith, the court shall grant the postponement of the trial of the action, giving the party a reasonable time in which to prepare for trial. And in granting such postponement, the court may, in its discretion, annex as a condition thereto an order that the party obtaining such postponement shall not, pending the trial of the action, remove from the premises in controversy any valuable earth or ore, and for any violation of an order so made, the court or the judge thereof may punish for contempt, as in the cases of violation of an order of injunction, and may also vacate the order of postponement.

      [1911 CPA § 261; RL § 5203; NCL § 8759]

      NRS 16.025  Preferences in setting date for trial: Party 70 years of age or older; party seriously ill; defendant convicted of crime punishable as felony.

      1.  Upon the motion of a party to an action who is 70 years of age or older, the court may give preference in setting a date for the trial of the action, unless the court finds that the party does not have a substantial interest in the case as a whole.

      2.  A court may grant a motion for preference in setting a date for the trial of an action if the court determines that based upon clear and convincing medical evidence, a party to the action suffers from an illness or condition which raises a substantial medical doubt that the party will survive for more than 6 months, and the court determines that the interests of justice would be served by granting the motion.

      3.  If a motion for preference is granted pursuant to subsection 1 or 2:

      (a) The court shall set a date for the trial of the action that is not more than 120 days after the hearing on the motion; and

      (b) The court shall not continue the date for the trial of the action beyond 120 days after the hearing on the motion, except for the physical disability of a party or attorney in the action, or for other good cause entered on the record.

      4.  If the plaintiff in an action seeks to recover damages allegedly caused by a defendant during the commission of acts for which the defendant is convicted of a crime punishable as a felony, the court may, upon the motion of the plaintiff, give preference in setting a date for the trial of the action. If the motion is granted, the trial of the action must, unless the court deems it infeasible, be held not more than 120 days after the hearing on the motion.

      (Added to NRS by 1987, 784)

TRIAL BY JURY

      NRS 16.030  Drawing and examination of jurors; administration of oath or affirmation.

      1.  Except when the jurors are drawn by a jury commissioner, in preparing for the selection of the jury, the clerk, under the direction of the judge, shall place in a box ballots containing the names of the persons summoned who have appeared and have not been excused. The clerk shall mix the ballots and draw from the box the number of names needed to complete the jury in accordance with the procedure provided either in subsection 3 or subsection 4, as the judge directs.

      2.  Whenever the jurors are drawn by the jury commissioner, the judge may also direct the jury commissioner to draw, in advance, the names of additional jurors in the order they would be used to replace discharged or excused jurors pursuant to subsections 3 and 4.

      3.  The judge may require that eight names be drawn, and the persons whose names are called must be examined as to their qualifications to serve as jurors. If any persons are excused or discharged, or if the ballots are exhausted before the jury is selected, additional names shall be drawn from the jury box and those persons summoned and examined as provided by law until the jury is selected.

      4.  The judge may require that the clerk draw a number of names to form a panel of prospective jurors equal to the sum of the number of regular jurors and alternate jurors to be selected and the number of peremptory challenges to be exercised. The persons whose names are called must be examined as to their qualifications to serve as jurors. If any persons on the panel are excused for cause, they must be replaced by additional persons who must also be examined as to their qualifications. The jury must consist of eight persons, unless the parties consent to a lesser number. The parties may consent to any number not less than four. This consent must be entered by the clerk in the minutes of the trial. When a sufficient number of prospective jurors has been qualified to complete the panel, each side shall exercise its peremptory challenges out of the hearing of the panel by alternately striking names from the list of persons on the panel. After the peremptory challenges have been exercised, the persons remaining on the panel who are needed to complete the jury shall, in the order in which their names were drawn, be regular jurors or alternate jurors.

      5.  Before persons whose names have been drawn are examined as to their qualifications to serve as jurors, the judge or the judge’s clerk shall administer an oath or affirmation to them in substantially the following form:

 

       Do you, and each of you, (solemnly swear, or affirm under the pains and penalties of perjury) that you will well and truly answer all questions put to you touching upon your qualifications to serve as jurors in the case now pending before this court (so help you God)?

 

      6.  The judge shall conduct the initial examination of prospective jurors and the parties or their attorneys are entitled to conduct supplemental examinations which must not be unreasonably restricted.

      [1911 CPA § 262; RL § 5204; NCL § 8760]—(NRS A 1971, 344; 1977, 417; 1979, 917; 1981, 329, 556)

      NRS 16.040  Challenges to jurors; peremptory challenges.

      1.  Either party may challenge the jurors. The challenges must be to individual jurors and be peremptory or for cause. Each side is entitled to four peremptory challenges.

      2.  If there are two or more parties on any side and their interests are diverse, the court may allow additional peremptory challenges, but not more than four, to the side with the multiple parties. If the multiple parties on a side are unable to agree upon the allocation of their additional peremptory challenges, the court shall make the allocation.

      [1911 CPA § 263; RL § 5205; NCL § 8761]—(NRS A 1977, 295; 1979, 66)

      NRS 16.050  Grounds for challenges for cause.

      1.  Challenges for cause may be taken on one or more of the following grounds:

      (a) A want of any of the qualifications prescribed by statute to render a person competent as a juror.

      (b) Consanguinity or affinity within the third degree to either party.

      (c) Standing in the relation of debtor and creditor, guardian and ward, master and servant, employer and clerk, or principal and agent, to either party, being a member of the family of either party or a partner, or united in business with either party, or being security on any bond or obligation for either party.

      (d) Having served as a juror or been a witness on a previous trial between the same parties for the same cause of action or being then a witness therein.

      (e) Interest on the part of the juror in the event of the action, or in the main question involved in the action, except the interest of the juror as a member or citizen of a municipal corporation.

      (f) Having formed or expressed an unqualified opinion or belief as to the merits of the action, or the main question involved therein, but the reading of newspaper accounts of the subject matter before the court shall not disqualify a juror either for bias or opinion.

      (g) The existence of a state of mind in the juror evincing enmity against or bias to either party.

      2.  A challenge for cause for standing in the relation of debtor and creditor when the party to an action is a public utility as defined in NRS 704.020 may be allowed only where the circumstances as determined by the court so warrant.

      [1911 CPA § 264; RL § 5206; NCL § 8762]—(NRS A 1967, 99)

      NRS 16.060  Challenges for cause tried by court.  Challenges for cause shall be tried by the court. The juror challenged and any other person may be examined as a witness on the trial of the challenge.

      [1911 CPA § 265; RL § 5207; NCL § 8763]

      NRS 16.070  Jury to be sworn; court may order jury into custody of officer.

      1.  As soon as the jury is completed, the judge or the judge’s clerk shall administer an oath or affirmation to the jurors in substantially the following form:

 

       Do you, and each of you, (solemnly swear, or affirm under the pains and penalties of perjury) that you will well and truly try the case now pending before this court and a true verdict render according to the evidence given (so help you God)?

 

      2.  As soon as the alternate juror or jurors are selected, the judge or the judge’s clerk shall administer an oath or affirmation to them in substantially the following form:

 

       Do you, and each of you, (solemnly swear, or affirm under the pains and penalties of perjury) that, if required to replace a regular juror or jurors you will well and truly try the case now pending before this court, and a true verdict render according to the evidence given (so help you God)?

 

      3.  After the oath or affirmation has been administered and the jury has been fully impaneled, the court may order the jury into the custody of the sheriff or other officer selected by the court. The jurors shall not be allowed to separate or depart from the custody of the sheriff or other officer except by order of the court. The sheriff shall in such cases, at the charge of the parties to action, prepare suitable and comfortable accommodations and provide food for the jury pending the trial.

      [1911 CPA § 266; A 1937, 173; 1931 NCL § 8764]—(NRS A 1977, 300, 881)

      NRS 16.080  Discharge and replacement of jurors who become unable or disqualified to perform duties.  After the impaneling of the jury and before verdict, the court may discharge a juror upon a showing of the juror’s sickness, a serious illness or death of a member of the juror’s immediate family, an undue hardship, an extreme inconvenience, any other inability to perform the juror’s duty or a public necessity. Alternate jurors, in the order in which they were selected, shall replace jurors who become unable or disqualified to perform their duties. If an alternate juror is required to replace a regular juror after the jury has retired to deliberate, the court shall recall the jury, seat the alternate and resubmit the case to the jury. If no alternate juror has been selected, the trial may proceed with the remaining jurors, only if the parties so agree. If the parties do not so agree, the jury shall be discharged, and a new jury then or afterwards impaneled.

      [1911 CPA § 267; RL § 5209; NCL § 8765]—(NRS A 1977, 300)

      NRS 16.090  Order of proceedings after jury has been sworn.  When the jury has been sworn, the trial must proceed in the following order, unless the judge for special reasons otherwise directs:

      1.  The pleadings may be read by counsel for the respective parties, as they may prefer, or, if not so read, counsel for the respective parties may state the issue during their opening statements. If the pleadings are not read before jury voir dire, the court or either counsel, as the court directs, may state the nature of the case to the jury and advise the jurors of the witnesses whom each side proposes to call. After the jury has been selected and sworn, counsel for the plaintiff and defendant, shall make opening statements if they desire.

      2.  The plaintiff and defendant shall then each offer the evidence upon his or her part.

      3.  The parties may then respectively offer rebutting evidence only, unless the court for good reason, in furtherance of justice, permits them to offer evidence upon their original case.

      4.  When the evidence is concluded, unless the case is submitted to the jury by either or both sides without argument, the plaintiff must commence and may conclude the argument.

      5.  If several plaintiffs or defendants, having separate claims or defenses, appear by different counsel, the court shall determine their relative order in the evidence and argument.

      6.  The court shall settle and give the instructions to the jury before the argument begins, but this does not prevent the giving of further instructions which may become necessary by reason of the argument.

      [1911 CPA § 268; RL § 5210; NCL § 8766]—(NRS A 1977, 301)

      NRS 16.100  Jury may view property or premises.  When, in the opinion of the court, it is proper for the jury to have a view of the property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted, in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person, other than the person so appointed, shall speak to them on any subject connected with the trial.

      [1911 CPA § 269; RL § 5211; NCL § 8767]

      NRS 16.110  Instructions to jury.

      1.  The court shall reduce to writing the instructions to be given to the jury, unless the parties agree otherwise, and shall read such instructions to the jury. The court shall give instructions only as to the law of the case. An original and one copy of each instruction requested by any party shall be tendered to the court. The copies shall be numbered and indicate who tendered them. Copies of instructions given on the court’s own motion or modified by the court shall be so identified. When requested instructions are refused, the judge shall write on the margin of the original the word “refused” and initial or sign the notation. The instructions given to the jury shall be firmly bound together and the judge shall write the word “given” at the conclusion thereof and sign the last of the instructions to signify that all have been given. After the instructions are given, the judge shall not clarify, modify or in any manner explain them to the jury except in writing unless the parties agree to oral instructions.

      2.  After the jury has reached a verdict and been discharged, the originals of all instructions, whether given, modified or refused, shall be preserved by the clerk as part of the proceedings.

      3.  Conferences with counsel to settle instructions may be held in chambers at the option of the court. In any event, conferences on instructions must be out of the presence of the jury.

      [1911 CPA § 270; RL § 5212; NCL § 8768]—(NRS A 1977, 302)

      NRS 16.120  Deliberation of jury: How and where conducted.

      1.  After hearing the charge, the jury shall retire for deliberation until they agree upon their verdict or are discharged by the court and must be kept together in a room provided for them, under charge of one or more officers, unless at the discretion of the court they are permitted to depart for home overnight. When the jury is kept together, the officer in charge shall keep the jury separate from other persons. The officer shall not permit any communication to them, or make any himself or herself, unless by order of the court, except to ask them if they have agreed upon their verdict. The officer shall not, before the verdict is rendered, communicate to any person the state of their deliberations or the verdict agreed upon.

      2.  Each party to the action may appoint one or more persons, one of whom on each side is entitled to remain with the officer in charge of the jury, and to be present at all times when any communication is had with any member of the jury except when they are permitted to depart for home overnight, and no communication, either oral or written, may be made to or received from any of the jurors while they are kept together, except in the presence of and hearing of persons selected by the parties; and in case of a written communication, it must not be delivered until read by them.

      3.  At each adjournment of the court, whether the jurors are permitted to depart for home overnight or are kept in charge of officers, they must be admonished by the judge or another officer of the court that it is their duty not to:

      (a) Communicate among themselves or with any other person concerning their deliberations or any other subject connected with the trial; or

      (b) Read, watch or listen to any report of or commentary on the trial or any person connected with the trial by any medium of information, including without limitation newspapers, television and radio.

      [1911 CPA § 271; RL § 5213; NCL § 8769]—(NRS A 1977, 302, 882; 1981, 317)

      NRS 16.130  Jury may take papers, materials and notes of testimony when retiring for deliberation.  Upon retiring for deliberation the jury may take with them all papers, except depositions, and all other items and materials which have been received as evidence in the cause, or copies of any such papers as ought not, in the opinion of the court, to be taken from the person having them in possession; and they may also take with them notes of the testimony, or other proceedings on the trial, taken by themselves or any of them, but none taken by any other person.

      [1911 CPA § 272; RL § 5214; NCL § 8770]—(NRS A 1963, 60)

      NRS 16.140  Jury may come into court for further instructions.  After the jury has retired for deliberation, if there is a disagreement among them as to any part of the testimony, or if they desire to be informed of any point of law arising in the cause, they may require the officer to conduct them into court. Upon their being brought into court, the court may order the court reporter to read the portion of the testimony which they request, or any part thereof, and the court may provide any information requested on the law. This shall be in the presence of or after notice to the parties or counsel.

      [1911 CPA § 273; RL § 5215; NCL § 8771]—(NRS A 1977, 303)

      NRS 16.150  Action may be tried again when jury discharged or prevented from giving verdict.  In all cases where a jury are discharged, or prevented from giving a verdict by reason of accident or other cause during the progress of the trial, or after the cause is submitted to them, the action may be again tried, immediately or at a future time, as the court shall direct.

      [1911 CPA § 274; RL § 5216; NCL § 8772]

      NRS 16.160  Court may adjourn from time to time while jury absent; sealed verdict.  While the jury are absent the court may adjourn from time to time in respect to other business, but it shall, nevertheless, be deemed open for every purpose connected with the cause submitted to the jury until a verdict is rendered or the jury discharged. The court may direct the jury to bring in a sealed verdict at the opening of the court, in case of an agreement during a recess or adjournment for the day.

      [1911 CPA § 275; RL § 5217; NCL § 8773]

      NRS 16.170  Verdict of jury.  When a jury has agreed upon its verdict, the jurors shall be conducted into court by the officer having them in charge; they shall be asked by the court, or clerk, whether they have agreed upon their verdict; and if the foreman answers in the affirmative, the verdict shall be delivered to the court who shall examine it.

      [1911 CPA § 276; RL § 5218; NCL § 8774]—(NRS A 1977, 303)

      NRS 16.180  Proceedings when verdict informal.  If the verdict be informal or insufficient in not covering the whole issue or issues submitted, the verdict may be corrected by the jury, under the advice of the court, or the jury may again be sent out.

      [1911 CPA § 277; RL § 5219; NCL § 8775]

      NRS 16.190  Polling jury; recording verdict and discharging jury.  When the verdict is given and is not informal or insufficient, the jury foreman or the clerk shall read it aloud. If the verdict is general, any party may request that the jury be polled. If a poll is requested, the clerk shall call the names of the jurors and ask each “Is this your verdict as read?” If more than one-fourth of the jurors disagree, the jury shall be again sent out; but if no disagreement is expressed, the clerk shall fully record the verdict in the minutes, the verdict is complete and the jury shall be discharged from the case.

      [1911 CPA § 278; RL § 5220; NCL § 8776]—(NRS A 1977, 303)

MASTERS

      NRS 16.200  Two of three masters may act.  When there are three masters all shall meet, but two of them may do any act which might be done by all.

      [Part 1911 CPA § 546; RL § 5488; NCL § 9035]