Ochs only cites two Nevada cases for her argument that the state's experts' testimonies were impermissible: Lickey v. State, 108 Nev. 191, 196, 827 P.2d 824, 827 (1992), which provided that โ[a]n expert may not comment on the veracity of a witness, โ and In re Assad, 124 Nev. 391, 400, 185 P.3d 1044, 1050 (2008), which provided that if expert testimony โis irrelevant or if it impermissibly encroaches on the trier of fact's province, then it is properly excluded.โ (ECF No. 56 at 28.)
However, expert testimony is properly excluded when it is "irrelevant or if it impermissibly encroaches on the trier of fact's province." In re Assad. 124 Nev. 391, 400, 185 P.3d 1044, 1050 (2008). "The standard for admissibility varies depending upon the expert opinion's nature and purpose."
See In re Assad, 124 Nev. 391, 400, 185 P.3d 1044, 1050 (2008) (providing that irrelevant expert evidence is properly excluded). Appellant has not shown deficient performance in this regard or that he would have proceeded to trial but for counsel's omission.
Nevertheless, the violations proven in the other counts were serious and justify the discipline imposed. See In re Assad, 124 Nev. 391, 406, 185 P.3d 1044, 1053 (2008) (explaining that, when determining the appropriate sanctions, this court must exercise its independent judgment); In re Davis, 113 Nev. 1204, 1222, 1226, 946 P.2d 1033, 1045, 1047 (1997) (sustaining the Commission's decision despite holding that certain canons were not violated). NRS 1.4677 governs forms of discipline following a finding of misconduct on formal charges and allows the Commission to publicly censure a judge and to suspend the judge from office without pay. NRS 1.4677(1)(a), (c). Although the Commission found willful misconduct, the discipline imposed is commensurate with the violations even under the not knowing and deliberate standard. NRS 1.4653(2).
See, e.g., In re Assad, _ Nev _; 185 P3d 1044, 1052 (2008), which upheld Canon 2, ยง 2(A) of the Nevada Code of Judicial Conduct against a due process challenge. Nevada Canon 2(A) provides, "A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."
Courts in other jurisdictions that have considered whether canons of judicial conduct violate "due process" because they are impermissibly vague have rejected such claims. See In re Assad, 185 P.3d 1044, 1052 (Nev. 2008) (Canon 2A not vague); In re McGuire, 685 N.W.2d 748, 762 (N.D. 2004) ("courts in other jurisdictions appear to have routinely rejected vagueness challenges to codes of judicial conduct"); In re Hill, 8 S.W.3d 578, 582-83 (Mo. 2000) (rejecting "vagueness" challenge to Canons 2A and 2B, holding that "[n]either absolute certainty nor impossible standards of specificity are required," and that "[t]his is especially true injudicial discipline."); Comm'n on Judicial Performance v. Spencer, 725 So.2d 171, 176 (Miss. 1998) (rejecting "vagueness" challenge to Canons 1, 2A, 2B, and 3B, holding that "the Canons are sufficient to put [persons] of common intelligence on notice of what type of conduct is prohibited.")
Expert testimony that "impermissibly encroaches on the trier of fact's province" should be properly excluded. In re Assad, 124 Nev. 391, 400, 185 P.3d 1044, 1050 (2008). And expert testimony concerning a witness' credibility improperly invades the jury's province.
But, despite its general admissibility, expert testimony is impermissible when it tends to usurp the role of a jury in weighing conflicts in evidence or commenting on the veracity of other witnesses. See, e.g., In re Assad, 124 Nev. 391, 399-400, 185 P.3d 1044, 1049-50 (2008) (stating that expert testimony is properly excluded "[i]f it is irrelevant or if it impermissibly encroaches on the trier of fact's province" and stating "the rules of evidence concerning the admissibility of expert testimony do not distinguish between civil and criminal proceedings and many of our civil cases discussing NRS 50.275 rely on criminal cases."); Cordova v. State, 116 Nev. 664, 669, 6 P.3d 481, 485 (2000) (holding that "[a]n expert may not comment on a witness's veracity or render an opinion on a defendant's guilt or innocence") (quoting Lickey v. State, 108 Nev. 191, 827 P.2d 824 (1992)). Here, the district court's pretrial rulings adequately reflected Nevada law.