Background
The Nevada Supreme Court has upheld a prosecutor’s statutory power to withhold consent when a criminal defendant asks to waive a jury. In a published opinion addressing a Nevada separation-of-powers challenge for the first time, the court held that NRS 175.011(1) does not give the executive branch an unconstitutional veto over a judicial function. The provision requires a jury trial unless the defendant waives it in writing, the court approves, and the prosecutor consents.
Jessica De Falco’s charges arose from an altercation in a North Las Vegas fast-food parking lot. According to the trial evidence, an intoxicated De Falco argued with people in another vehicle, made a U-turn, accelerated toward nearby patrons, and struck Melissa Garibay and Brian Salcedo. She then backed up and ran over Salcedo again despite bystanders’ efforts to stop her. Both victims were seriously injured. De Falco left the scene, abandoned her vehicle, and later told detectives the victims “deserved it.”
Before jury selection on the first day of trial, De Falco submitted a signed jury-waiver form and requested a bench trial. The State refused to consent, and the district court denied the request because Nevada law does not give a defendant an absolute right to insist on a nonjury trial. A jury convicted De Falco of two counts each of attempted murder with a deadly weapon and battery with a deadly weapon causing substantial bodily harm, plus failing to stop at a crash involving injury. She challenged the waiver statute, the sufficiency of the evidence, and the cumulative effect of alleged errors.
The Court’s Holding
Writing for a unanimous three-justice panel, Justice Lee concluded that NRS 175.011(1) respects Nevada’s constitutional allocation of power. The court relied on its earlier decisions recognizing that the jury-trial guarantee protects the public and the State as well as the accused. A defendant has a constitutional right to an impartial jury, but that guarantee does not create an inverse right to compel a bench trial. Requiring consent from the prosecutor and approval from the court is therefore a permissible condition on waiver.
The court distinguished procedural legislation that intrudes on the judiciary’s rulemaking authority from legislation implementing a substantive constitutional right. De Falco identified no conflicting court rule. Because Nevada’s jury guarantee belongs to both sides, the Legislature could require both sides’ agreement before abandoning that mode of trial. The prosecutor’s refusal consequently did not impair the judiciary’s ability to decide a matter reserved to courts.
The justices also distinguished State v. Hearn, where prosecutorial consent effectively controlled whether a qualifying defendant could enter veterans court after guilt had been determined. Sentencing is a judicial function once charging discretion ends, so the executive could not veto that decision. Jury waiver occurs in a different setting: the State is exercising its own jury-trial right rather than invading an exclusively judicial domain. The court also found substantial evidence of attempted-murder intent. De Falco’s U-turn toward the victims, repeated use of the car after the first impact, flight, abandonment of the vehicle, and later statement allowed a rational jury to infer an intent to kill despite evidence of intoxication.
Key Takeaways
- NRS 175.011(1) is constitutional: a Nevada prosecutor may refuse consent to a criminal defendant’s written jury waiver without violating separation of powers.
- A defendant’s right to an impartial jury does not include a right to compel a bench trial. Nevada treats the jury guarantee as protecting the State and the public as well as the accused.
- The court’s substantive-versus-procedural framework remains central. The Legislature may implement a substantive constitutional right even when the law affects trial mechanics, particularly where no court rule conflicts.
- Hearn remains controlling when executive consent intrudes on sentencing, but it does not apply when the prosecutor exercises the State’s own constitutional interest in a jury trial.
- Circumstantial evidence can establish the specific intent required for attempted murder, and voluntary intoxication presents a jury question rather than automatically defeating intent.
Why It Matters
For Nevada criminal litigators, De Falco closes an open constitutional route around the consent requirement. A defense lawyer may still request a bench trial and advocate for prosecutorial agreement, but cannot obtain one over the State’s objection merely by characterizing consent as an executive veto. Any future challenge will likely need extraordinary case-specific circumstances, a different constitutional theory, or a conflict with a judicial rule rather than the facial separation-of-powers argument rejected here.
The opinion also gives Nevada courts a clearer boundary between permissible legislation affecting courtroom procedure and impermissible executive control of judicial decisions. The practical question is whose constitutional or institutional authority the statute implements. Here, the shared interest in jury adjudication supported legislative conditions on waiver; in the sentencing context discussed in Hearn, exclusive judicial authority produced the opposite result.