No negative inference from failure to introduce defendant's statements
In Glover v. Dist. Ct., announced Nov. 12, 2009, the Nevada Supreme Court denied a petition for writ of prohibition seeking to bar on the grounds of double jeopardy the retrial of Glover for murder. The Nevada Supreme Court ruled that a negative inference arising from the prosecution’s failure to present a hearsay statement by the accused (the accused’s statement to the police) was not properly presented to the jury. Because defense counsel repeatedly referred to the excluded evidence, and to the prosecution’s refusal to present it, the district court determined that a mistrial was a manifest necessity. Granting deference to that determination, and considering the defendant’s role in requiring it, there will was no violation of double jeopardy in retrying Glover. Opinion by Pickering.
Hardesty & Saitta dissented in part, concluding that the district court failed to make the findings necessary to support its determination that mistrial was a manifest necessity, and that a curing instruction would have been sufficient.
Cherry dissented, concluding that that the negative inference from the prosecution’s failure to produce evidence peculiarly in its power to present would arise.
