“Substantial Opportunity to Use” Test for Late-Disclosed Evidence: Nevada Clarifies Prejudice and Continuance Cures in Lee v. State

Introduction

In Lee (Michael) v. State, No. 85004 (Nev. Sept. 12, 2025), the Supreme Court of Nevada affirmed Michael Lee’s convictions for first-degree murder by child abuse and child abuse causing substantial bodily harm arising from the death of two-year-old B.A. The case returned on appeal after a retrial—Lee had previously obtained postconviction relief via habeas corpus, leading to a second jury trial and renewed convictions.

On appeal, Lee challenged the verdict on multiple grounds: sufficiency of the evidence, late disclosure of exculpatory material (a compact disc of witness interviews, an evidence log, and a forensic pathologist’s revised injury timeline), prosecutorial misconduct, denials of trial continuances, juror misconduct, judicial bias, and cumulative error.

The Nevada Supreme Court affirmed across the board, and—most notably—clarified how Nevada courts assess prejudice from late disclosures of evidence. Aligning with federal authority, the Court emphasized that when the defense retains a substantial opportunity to use late-produced material, and continuances are granted to mitigate any disadvantage, claims of prejudice fail. The Court also reiterated the stringent standards governing sufficiency challenges, unpreserved prosecutorial-misconduct claims, and intrinsic juror-misconduct allegations.

Summary of the Opinion

• Convictions affirmed. The evidence was sufficient; the jury’s credibility and weight determinations will not be disturbed where substantial evidence supports the verdict.
• Late disclosures. No due process violation where Lee had a substantial opportunity to use late-disclosed materials. A short continuance often cures any potential prejudice; here, the trial court granted more time than requested, and counsel confirmed readiness.
• Prosecutorial misconduct. Reviewed for plain error due to lack of contemporaneous objection. No material misrepresentation of the forensic timeline and no improper burden shifting; any risk of confusion was cured by an immediate instruction reaffirming the State’s burden.
• Continuances. No abuse of discretion in denying additional continuances; Lee did not show resulting prejudice, particularly where he had prior knowledge of the interviews’ substance and opportunities to cross-examine or recall witnesses.
• Juror misconduct. Intrinsic misconduct claims require “extreme circumstances” and generally cannot rely on juror statements impeaching the verdict; Lee’s showing failed. Alleged outside research was reviewed for plain error and was unsupported by the record.
• Judicial bias and cumulative error. Bias claim was waived for failure to raise it below; with no individual errors found, cumulative error necessarily fails.

Analysis

Precedents Cited and Their Influence

• Sufficiency of the Evidence:
  • Belcher v. State, 136 Nev. 261, 464 P.3d 1013 (2020); McNair v. State, 108 Nev. 53, 825 P.2d 571 (1992): articulating the rational-trier-of-fact standard in the light most favorable to the prosecution.
  • Brass v. State, 128 Nev. 748, 291 P.3d 145 (2012): jury verdict stands when supported by substantial evidence.
  • Mitchell v. State, 124 Nev. 807, 192 P.3d 721 (2008): appellate courts do not reweigh evidence or reassess credibility.
  • Hernandez v. State, 118 Nev. 513, 50 P.3d 1100 (2002): convictions may rest entirely on circumstantial evidence.
• Late Disclosure and Brady Context:
  • United States v. Miller, 529 F.2d 1125 (9th Cir. 1976): prejudice inquiry for late-disclosed evidence focuses on whether lateness prevented a fair trial.
  • Thomas v. Eighth Judicial Dist. Court, 133 Nev. 468, 402 P.3d 619 (2017) (n.12): differentiates true Brady suppression from late disclosure.
  • United States v. Alahmedalabdaloklah, 94 F.4th 782 (9th Cir. 2024): no prejudice if defendant had a substantial opportunity to use belatedly disclosed evidence; continuances can remedy prejudice.
  • United States v. Douglas, 525 F.3d 225 (2d Cir. 2008): Brady material untimely disclosed such that the defense cannot use it may be “suppressed” within Brady’s meaning.
  • Sanborn v. State, 107 Nev. 399, 812 P.2d 1279 (1991): denial of new trial reviewed for abuse of discretion.
  • Maresca v. State, 103 Nev. 669, 748 P.2d 3 (1987): issues lacking cogent argument and authority need not be addressed.
• Prosecutorial Misconduct and Plain Error:
  • Parker v. State, 109 Nev. 383, 849 P.2d 1062 (1993); Valdez v. State, 124 Nev. 1172, 196 P.3d 465 (2008): unpreserved misconduct claims reviewed for plain error.
  • Green v. State, 119 Nev. 542, 80 P.3d 93 (2003); Thomas v. State, 120 Nev. 37, 83 P.3d 818 (2004): burden to show actual prejudice; due process is violated only if comments infect the trial with unfairness.
  • State v. Green, 81 Nev. 173, 400 P.2d 766 (1965): prosecutor may comment on evidence and argue reasonable inferences.
• Continuances:
  • Rose v. State, 123 Nev. 194, 163 P.3d 408 (2007): continuance rulings reviewed for abuse of discretion.
  • Higgs v. State, 126 Nev. 1, 222 P.3d 648 (2010): denial is an abuse only if it deprives adequate time to prepare and causes prejudice.
  • Lee v. Eighth Judicial Dist. Court, No. 84328, 2022 WL 766426 (Nev. Mar. 11, 2022): district court had to decide disqualification issue before proceeding to trial.
• Juror Misconduct and Waiver:
  • Meyer v. State, 119 Nev. 554, 80 P.3d 447 (2003): intrinsic misconduct rarely warrants a new trial and generally cannot be shown with juror affidavits impeaching the verdict; extreme circumstances required.
  • Martinorellan v. State, 131 Nev. 43, 348 P.3d 590 (2015): plain error review where issue not raised below.
  • Nelson v. State, 123 Nev. 534, 170 P.3d 517 (2007): plain error must be unmistakable on casual inspection.
  • Blankenship v. State, 132 Nev. 500, 375 P.3d 407 (2016): unpreserved judicial bias claims are waived.
  • Burnside v. State, 131 Nev. 371, 352 P.3d 627 (2015): cumulative error requires multiple underlying errors.

Legal Reasoning

1) Sufficiency of the Evidence

Lee’s sufficiency challenge targeted the State’s medical-timeline proof. The defense focused on the forensic pathologist, Dr. Gavin, who testified that while she observed more macrophages upon re-review (suggesting the injury could be slightly more than 24 hours old), the neutrophil count supported that the fatal injury occurred around 24 hours before death. The Court held that this testimony, together with the record, satisfied Nevada’s substantial-evidence threshold.

The Court emphasized two bedrock principles: it will not reweigh the evidence or second-guess the jury’s credibility determinations (Mitchell), and a conviction may be based entirely on circumstantial proof (Hernandez). The jury’s acceptance of Dr. Gavin’s interpretation was permissible, and Lee’s attack on the State’s two-perpetrator theory did not collapse the sufficiency of the overall case.

2) Late Disclosure of Evidence and Prejudice

Lee alleged that three categories of exculpatory material were disclosed too late: a CD of witness interviews, an evidence log, and Dr. Gavin’s revised timing opinion. The Court anchored its analysis in the “prejudice” inquiry for late disclosure: whether the timing so impeded defense preparation or presentation that the defendant was deprived of a fair trial (Miller; Thomas). It further relied on Alahmedalabdaloklah’s “substantial opportunity to use” test and recognized that a continuance frequently cures prejudice from late-disclosed material.

Applying those principles, the Court found no prejudice:

• CD and transcript of interviews: Lee had the CD before the witnesses testified and had both the CD and transcript for cross-examining Arica Foster. Though the transcript followed Brad Moshier’s testimony, the defense could have recalled him but chose not to. Meridee Moshier’s recorded statements aligned with her prior testimony, undermining any claim that impeachment opportunities were lost. Lee’s suggestion that he would have enhanced audio and employed a body language expert was not supported with authority or proof of actual adverse impact (Maresca).
• Evidence log: Produced in time for cross-examination of Detective Collins, whom Lee effectively impeached using inconsistencies concerning the missing CD from the first trial.
• Dr. Gavin’s revised timeline: The State promptly disclosed the update. The underlying slides had long been available and had supported both sides’ experts in the first trial; nothing barred Lee from retaining rebuttal expertise again. The trial court granted a two-day continuance (more than requested), spanning Thursday, Friday, and the weekend, and defense counsel confirmed readiness thereafter. Under Alahmedalabdaloklah, such a continuance “will often remedy” potential prejudice, which the Court found it did here.

Because Lee failed to show that the late disclosures prevented effective use of the information at trial, the district court did not abuse its discretion in denying a new trial (Sanborn).

3) Prosecutorial Misconduct (Plain Error Review)

Lee asserted two instances of misconduct, but he had not contemporaneously objected, invoking plain error review (Parker; Valdez). He bore the burden to show actual prejudice or a miscarriage of justice (Green; Thomas 2004).

• Pretrial disclosure of Dr. Gavin’s timeline: The Court found Dr. Gavin’s trial testimony materially consistent with the first trial and with the State’s pretrial disclosure. Even assuming imprecision, Lee did not demonstrate actual prejudice.
• Burden shifting in closing argument: The prosecutor argued that the jury could determine whether the mother, Arica Foster, killed her son. The Court deemed this proper commentary on evidence supporting the State’s two-actor theory (Lee and Foster), an inference argument sanctioned by State v. Green (1965). Any possible confusion was immediately addressed by a curative instruction reiterating that the State carries the beyond-a-reasonable-doubt burden, which dissipated potential prejudice.

4) Denial of Continuances

Continuance rulings are reviewed for abuse of discretion (Rose), and reversal requires a showing that denial denied adequate time for preparation and caused prejudice (Higgs). The Court held there was no abuse:

• Lee was not seeking time to prepare his own witnesses and had opportunities to examine the relevant witnesses about potentially inadvertent disclosures.
• Consistent with the Court’s earlier order in Lee v. Eighth Judicial Dist. Court, the district court properly resolved the disqualification issue before proceeding to trial.
• Regarding the CD, the defense had prior knowledge of the interview substance via notes and reports from the first trial, undercutting any claim of surprise. After disclosure, Lee neither sought further continuance nor demonstrated resultant prejudice.
• The request for an extra day to prepare closing arguments was permissibly denied, particularly where the defense had agreed to the schedule; maintaining calendaring did not deny a fair trial.

5) Juror Misconduct

Lee advanced two theories: (a) jurors ignored the burden-of-proof instruction, and (b) jurors conducted outside research. The first category is intrinsic juror misconduct—conduct contrary to instructions or oaths—which rarely warrants a new trial and typically cannot be proven with juror affidavits that delve into deliberations (Meyer). Lee’s argument relied on inadmissible juror statements and thus failed. The district court therefore did not abuse its discretion in denying a new trial on this ground.

As for alleged outside research, because Lee did not raise this below, review was for plain error (Martinorellan). The two juror questions cited did not unmistakably reflect improper research (Nelson). The first, about “a prior hearing/trial,” was resolved by the court’s clarification that earlier references were to hearings, not a trial. The second, about whether Lee had been jailed since arrest, could be inferred from the timeline presented at trial and did not necessarily signal outside inquiry. No plain error was shown.

6) Remaining Claims: Judicial Bias and Cumulative Error

Lee’s judicial bias argument was not preserved and was waived (Blankenship). With no individual errors established, cumulative error necessarily failed (Burnside).

Impact and Significance

• Late-disclosure prejudice standard clarified: Nevada’s high court expressly relies on the federal “substantial opportunity to use” framework (Alahmedalabdaloklah) to assess prejudice from late-disclosed evidence. This reinforces a practical, use-centered inquiry: Was defense counsel substantially able to deploy the material? If a reasonable continuance is granted and counsel confirms readiness, prejudice will be difficult to show.
• Continuances as a cure: Short continuances, when promptly granted, will often suffice to remedy any disadvantage from late disclosure. Defense counsel should request focused continuances tailored to needed tasks (e.g., recall a witness, consult an expert) and create a record of specific prejudice if more time is needed.
• Closing argument boundaries: Prosecutors may argue that the jury should infer an alternate perpetrator consistent with the State’s theory when there is record support; such arguments are not burden shifting, particularly if the court reiterates the State’s burden immediately.
• Intrinsic juror misconduct remains a high bar: Attempts to impeach a verdict with juror statements about deliberations will almost always fail absent extreme circumstances. Parties must avoid reliance on inadmissible juror affidavits.
• Preservation matters: Failure to object contemporaneously relegates claims to plain error review, which is difficult to meet. Lee underscores the strategic importance of timely objections and precise, authority-supported arguments (Maresca).
• Expert forensics in timing-of-injury cases: The Court’s discussion of neutrophils and macrophages implicitly validates jury reliance on nuanced pathology where the expert ties biological markers to a timing opinion; disputes over precise windows are for the jury absent a clear evidentiary gap.

Complex Concepts Simplified

• Substantial evidence: Enough evidence that a reasonable jury could find all elements of the crime proven beyond a reasonable doubt, viewing the proof in the State’s favor.
• Brady vs. late disclosure: A Brady violation occurs when the State suppresses favorable material evidence so the defense cannot use it. Late disclosure is not necessarily a Brady violation if the defense still has a substantial opportunity to use the material at trial.
• Plain error review: Applied when a party did not object at trial. The appellant must show an obvious error that affected substantial rights and resulted in actual prejudice or a miscarriage of justice.
• Intrinsic juror misconduct: Missteps during deliberations (e.g., misunderstanding instructions) that cannot usually be proven via juror affidavits and warrant a new trial only in extreme circumstances.
• Abuse of discretion (continuances): A trial judge’s scheduling decision is overturned only if it was unreasonable and caused concrete prejudice, such as preventing adequate preparation or presentation.
• Continuance as cure: Granting extra time can neutralize potential prejudice from late-produced evidence by allowing investigation, expert consultation, or recalling witnesses.
• Cumulative error: Even if no single mistake warrants reversal, multiple errors might together require a new trial; without multiple errors, this doctrine does not apply.
• Forensic timing markers (neutrophils vs. macrophages): Inflammation markers can indicate how long before death an injury occurred. Neutrophils generally appear earlier; macrophages are associated with later stages. Experts synthesize these data to estimate timing; juries assess credibility and weight.

Conclusion

Lee v. State reaffirms core Nevada criminal appellate principles while sharpening the framework for addressing late-disclosed evidence. The decision adopts a practical, defendant-usage focus: lateness alone is not prejudicial if the defense retains a substantial opportunity to exploit the material, and short continuances will often cure any disadvantage. Paired with strict adherence to preservation rules and the high thresholds for intrinsic juror-misconduct claims, the opinion provides durable guidance for trial courts and litigants.

Key takeaways: defendants must demonstrate concrete prejudice—not mere speculation—when complaining of late disclosures; timely requests for targeted continuances are essential; prosecutors may draw inferential arguments in closing when supported by the record; and appellate courts will defer to juries on expert disputes and to trial judges on scheduling absent a clear abuse. Lee underscores that effective trial advocacy, precise objections, and a well-developed record remain decisive in obtaining relief on appeal.