agrees, concurring:
The sole issue before this court is whether the district court exceeded its jurisdiction in divesting the district attorney of his prosecutorial prerogatives and appointing a special prosecutor to assume the functions of the district attorney in the criminal matter now before us. I concur only in that segment of the court’s opinion that grants the writ of prohibition and conditionally concur on remanding the matter for hearing before a different district judge. The remainder of the majority opinion unnecessarily and, in my judgment, improperly, weighs and characterizes facts, addresses and purports to resolve unbriefed non-issues, and generally tends to cast a pall over future considerations by a successor judge. As a result, I have felt compelled to address the court’s opinion.
Preliminarily, I think it necessary to correct the majority’s attribution of endorsement by Chief Judge Robin Anne Wright of the “factual determinations” of the order issued by the Honorable Robert L. Schouweiler. Judge Wright, along with all seven of the other district court judges of the Second Judicial District, took unprecedented measures to fully separate themselves from the Schouweiler order of February 12, 1988 (the order at issue). In a written order filed on February 24, 1988 and entitled “Order Clarifying Import of Chief Judge’s Signature,” Chief Judge Wright and each of the other seven judges referred to the February 12, 1988 order as containing the opinion of Judge Robert Schouweiler. The eight-judge order then proceeded to declare that: “The judges of the other Departments in the Second Judicial District have had no involvement in the case to date and consequently have no desire or reason to express an opinion as to the form or the contents of that [the Schouweiler] order.” Chief Judge Wright, beneath her signature, specified that she had signed the Schouweiler order “in her capacity as the Judge who presides over the grand jury.” Obviously, the eight-judge “order” was tautological as everyone understands that the judge who was solely responsible for the order and its contents is the Honorable Robert L. Schouweiler. I therefore suggest that the majority has unfairly concluded that the Honorable Robin Anne Wright has “already expressed factual determinations as to this ultimate issue [the need for a special prosecutor].”
I. The Order
The order of February 12, 1988 (the order) was issued after certain ex parte contacts with Judge Schouweiler apparently convinced the judge that a grand jury’s refusal to indict four UNR student-athletes for sexual assault resulted from a corrupt presentation or withholding of evidence by the district attorney’s office. *450Unfortunately, the judge, rather than contacting the district attorney for an explanation or scheduling an informal hearing to fairly consider all aspects of the matter, issued the order charging the district attorney, Mills Lane, with personally handling the grand jury presentation together with a deputy, and with personally telling the investigating and knowledgeable sheriff’s deputies that their testimony wouldn’t be needed. Moreover, Judge Schouweiler’s order described the issue as “whether the District Attorney, Mr. Lane, withheld from the Grand Jury evidence of confessions to, or admissions of, sexual assault by some of the suspects.” Continuing, the order specified that “[t]he Court finds there is evidence to suggest that the District Attorney, Mr. Lane, may have concealed from the Grand Jury inculpatory evidence of a serious crime, sexual assault.” The order proceeded to further malign Mr. Lane by strongly inferring that he had betrayed his public trust and concluding that it was “deeply disturbing to the Court that in this case Mr. Lane may have hidden evidence of possible guilt in connection with a most serious crime, violating his duty as a public prosecutor.”
Thereafter, the order divested the district attorney of his prose-cutorial prerogatives in the matter and appointed a special prosecutor to further evaluate the case for resubmission to the Washoe County Grand Jury and to determine whether to present evidence that a crime occurred.
Although Judge Schouweiler, in his answer to the petition, indicates that the district attorney manifested an “important misunderstanding” in accepting his appointment and designation of a “special prosecutor” at face value, and that the district attorney should have perceived that the order was only appointing a “special investigator,” I suggest that the judge is wrong. Equally wrong, in my opinion, is the majority who has accepted Judge Schouweiler’s belated explanation that the order appointed only an evaluator or investigator.
I have not the slightest doubt that Judge Schouweiler is aware of the difference between a special prosecutor and a special investigator. In appointing the former, the judge enjoined the district attorney from proceeding further in the case and then expressly appointed Paul D. Elcano, Jr., Esq. “to act as Special Prosecutor to perform the duties of District Attorney in this case.” (Emphasis added.) Obviously, if the district judge merely wanted to launch a special investigation to ascertain whether wrongdoing existed in connection with the grand jury presentation, it would have been neither necessary nor judicially proper to enjoin the district attorney and appoint a “special prosecutor” to perform the duties of the district attorney. Moreover, the appointment was ostensibly made pursuant to NRS 252.100, the statute *451that deals with the appointment of a substitute for the district attorney when the district attorney “fails to attend any session of the district court, or for any reason is disqualified.” Finally, the clear language of the order specifies that if the special prosecutor determines to present evidence to the grand jury, “he shall not proceed further without approval by the court.” (Emphasis added.) Clearly, the order contemplated that the special prosecutor would handle the presentation before the grand jury if the judge agreed with his analysis and recommendation. In short, the order purported to relieve the district attorney from the performance of his duties, enjoined him from doing so, and thereafter specifically appointed Mr. Elcano as special prosecutor. The district attorney did not misunderstand the intended import and effect of the purported order.
The order, which was prepared and filed without notice or hearing and before Judge Schouweiler had even seen the transcript of the grand jury proceedings, was disseminated to the news media well in advance of the date when the district attorney received his formal copy. Moreover, the order cannot be viewed merely as a fugitive document purporting to substitute a special prosecutor for the district attorney. The order purports to reflect evidence in the possession of Judge Schouweiler indicating that Mr. Lane has committed a criminal offense. The judge, in a unilateral “finding,” asserts that there is evidence to suggest that Mr. Lane may have concealed from the grand jury evidence of sexual assault. If, indeed, the judge has evidence proving that the district attorney “concealed” or “hid” evidence of the commission of a serious crime in order to preclude prosecution, action should be taken under NRS 252.190. If, on the other hand, the accusatory recitals of the order are without foundation, measures should be taken to prevent a reoccurrence of such a demeaning and destructive abuse of judicial power.
Although the district attorney has never had the opportunity to present his evidence before a tribunal authorized to weigh the facts, this court lends credence to the unilateral order by, inter alia, suggesting that it does not “inexorably follow that the district attorney himself, Mills Lane, was a blameworthy participant in the prosecutorial omissions.” The clear implication of the majority’s characterization is that Mr. Lane was most likely blameworthy, but the conclusion is not absolute. The majority then notes, quite unfairly and without justification, in my opinion, that the district attorney accepted the “no true bill” of the grand jury and, “in the two years since then, has actively resisted any prosecution of the matter.” Again, the inference seems to be that a district attorney should personally seek to reclaim an indictment whenever a grand jury refuses to indict. More impor*452tantly, the majority and Judge Schouweiler incorrectly attribute to Mr. Lane an active resistance to prosecution when, in fact, the district attorney has done nothing other than resist an invalid order that sought to disqualify him without procedural due process. To my knowledge the district attorney has never indicated that he would not fully and fairly consider evidence tending to support an allegation that the matter was not effectively presented to the grand jury. It is clear that the order’s assertion that “[t]he evidence indicates the case was handled by Mr. Mills Lane and Mr. John Aberasturi” is untrue according to the grand jury transcript. Unless Judge Schouweiler has evidence indicating that Mr. Lane was acting behind the scenes to instruct Mr. Aberasturi in his presentation, Mr. Lane has been falsely and unfairly accused of handling the case and no inference should be drawn that he would not be impartial or effective in reconsidering the matter.
Article 6, § 4 of the Nevada Constitution confers upon our court appellate jurisdiction on questions of law alone in all criminal cases originating in the district courts. This court said long ago that:
by a wise constitutional provision, the jurisdiction of this court, because of its situation, has been limited, in criminal cases, to questions of law alone. We can, as a question of law, decide whether or not there is any evidence in the record to support every fact that is necessary to constitute the crime of which the defendant has been convicted; but should we pass beyond that limit, we should assume the duties of the trial jury and court below, disregard a constitutional prohibition, and often fall into the error of giving weight and value to false testimony that has been properly considered and rejected by those who alone can judge of its character.
State v. Mills, 12 Nev. 403, 406 (1877).
The constitutional prohibition has special force in the instant proceeding where no properly constituted tribunal has “found” facts pertinent to the underlying grand jury presentation by the state. Judge Schouweiler had not seen the grand jury transcript before issuing his order, and in fact stated: “The issue presented is not in any way the possible guilt or innocence of those involved. The issue is whether the District Attorney, Mr. Lane, withheld from the Grand Jury evidence of confessions to, or admissions of, sexual assault by some of the suspects.” Judge Schouweiler thereafter “found” that there is_ evidence of such concealment. Indeed, the judge ultimately shifted from a finding of evidence suggesting the concealment of evidence by Mr. Lane, *453to an unequivocal finding of such concealment when he declared that “[t]he trust of several groups of people is violated by this unconscionable withholding of evidence.”
It is thus seen, as I observed previously, that Judge Schouweiler has issued an order implicating issues far more serious than the issue of the validity or impropriety of the order. The order purports to reflect evidence of the commission of a criminal suppression of evidence by Mr. Lane in order to frustrate prosecution of a series of felonies. Given the fact that the order was issued without notice or an opportunity to be heard, this court should exercise the greatest caution in characterizing the proceedings below. Although I will elucidate the point in greater detail hereafter, an example of my concern is illustrated by the majority’s judgmental direction that “[o]n remand, the court shall determine whether the district attorney was involved in or later ratified the deputy’s derelictions.” (Emphasis supplied.)
Although the majority has said nothing about the validity of the order, it is clear that it is void. A writ of prohibition, appropriately issued by the majority in the instant case, will issue only where a tribunal has acted without or in excess of the jurisdiction of such tribunal. NRS 34.320; Goicoechea v. Fourth Judicial Dist. Court, 96 Nev. 287, 607 P.2d 1140 (1980); McComb v. Fourth Judicial Dist. Court, 36 Nev. 417, 136 P. 563 (1913). Here, Judge Schouweiler entered a criminal finding against the district attorney, disqualified him from proceeding with his rightful functions and appointed a special prosecutor to act in his stead without the due process requirements of notice and an opportunity to be heard. I therefore concur with the majority that prohibition must issue. Moreover, this court vacated the order of disqualification entered by the district court in Collier v. Legakes, 98 Nev. 307, 311, 646 P.2d 1219, 1221 (1982), where the district court judge failed to hold an evidentiary hearing and refused to hear argument by the district attorney. In Collier, there was at least a case and a motion before the court and the district attorney was given notice of the hearing. In the instant case, there was no case and no motion and no procedural rights were accorded the district attorney before entry of the order disqualifying him because of alleged findings of personal corruption. The entire matter was pre-judged by Judge Schouweiler based upon ex parte contacts and before he had even received a copy of the grand jury transcript.
In a remarkably similar case, State ex rel. Preissler v. Dostert, 260 S.E.2d 279 (W.Va. 1979), an order entered by the general jurisdiction court (circuit court) without benefit of a motion and hearing was declared void and a petition for writ of prohibition *454granted. Although the office of prosecuting attorney in West Virginia is created by the state constitution, the holding in large measure is apposite to the instant case as there was no attempt to remove the prosecuting attorney from office — only to disqualify him pursuant to a West Virginia statute. Because of the obvious similarities, the following excerpts from Dostert have application here.
We note and are concerned that the record fails to show any institution or proceedings which would have invoked the jurisdiction of the circuit court to disqualify the elected prosecutor. We recognize that this issue is not raised by either party before us and ordinarily we would refuse to consider matters outside the pleadings. However, as this matter affects the jurisdiction or power of the lower court to act, this Court may properly raise the issue on its own motion and take notice of a lack of jurisdiction in the lower court.
* * *
[I]n order for a court to obtain jurisdiction of a given case, proper procedures must be pursued. Proceedings in a court which has not acquired jurisdiction as provided and recognized by law are void and a nullity.
* * *
We find nothing in the record to indicate that any recognized procedure was followed to invoke the jurisdiction of the circuit court to disqualify the prosecuting attorney.
The general rule is that in order for a court to obtain jurisdiction of a particular matter, there must be an appropriate application by a person invoking the judicial power of the court and that application must be in proper legal form. 20 Am.Jur.2d, Courts § 94; 21 C.J.S., Courts § 81. The proper form for application for an order recusing the prosecutor is by a motion, stating with particularity the grounds therefore [sic], W.Va.R.Civ.P., Rule 7(b)(1). In this particular case, since there was no hearing or trial in progress before the circuit court, such a motion would have had to be in writing.
The record reveals no motion by either the petitioner or the State requesting the removal of the prosecutor from petitioner’s case in magistrate court. The answer presents the sworn affidavit of petitioner’s former counsel stating that counsel informally communicated to the respondent petitioner’s demand that he either be allowed to have a hearing on the charges or that the charges be dismissed with prejudice. There is no evidence or allegation that a request was made at that time for recusal nor is there any record of a written motion to that effect. It is well-settled that a court of record *455speaks only through its record and anything not appearing on the record does not exist in law.
* * *
With some exceptions, an attempt by a court to assume jurisdiction in a particular matter on its own motion is futile and proceedings had pursuant to such a motion are void. To permit a judge to invoke the jurisdiction of his court sua sponte would place him in a position of a complainant deciding the merits of his own complaint in violation of the ancient homily of the law that no man may be a judge in his own case.
Consequently, we hold that where, as here, there is no showing on the record that any party has properly instituted proceedings in a court of record, the court cannot exercise jurisdiction over the matter and any purported order or judgment entered is void and its enforcement may be restrained by prohibition.
* * *
Finally, we note that the prosecuting attorney is elected by the people of the county to represent them in prosecutions against criminal offenders. Consequently, the public has a right to know why the attorney they have selected to represent them and whose salary they pay with their taxes, is unfit to prosecute a given case. . . . The court must provide every safeguard to insure the public that the business of the State is being properly conducted. A hearing on the record provides the public with an accurate record of the actions of their elected officials, upon which they may evaluate his performance.
We are of the opinion, therefore, that before a prosecuting attorney may be disqualified from acting in a particular case and relieved of the duties imposed upon him by the Constitution and by statute, the reasons for his disqualification must appear on the record, and where there is any factual question as to the propriety of the prosecutor acting in the matter, he must be afforded notice and an opportunity to be heard.
260 S.E.2d at 284-87.
This court was faced with the same type of misappropriated judicial power that existed in Dostert and the instant case in Cunningham v. Eighth Judicial Dist. Court, 102 Nev. 551, 729 P.2d 1328 (1986). In Cunningham we held:
More importantly, it is apparent that Judge Goldman acted in excess of his jurisdiction not only when he “ordered” Commander Cunningham to appear in his chamber within ten minutes, but later when he issued the show cause order, and when he held Commander Cunningham in contempt of *456court. No civil or criminal action was pending before Judge Goldman during this time upon which such orders might lawfully issue. A district judge has no authority, inherent or otherwise, to issue an order to anyone to appear before him except as expressly provided by law. Because no criminal or civil action involving the right to possess the video tapes was pending before Judge Goldman, he lacked subject matter jurisdiction over the underlying dispute. Furthermore, because nothing remotely resembling a proper order had been issued and served upon Cunningham, in regard to any proper proceeding, Judge Goldman had no personal jurisdiction whatever over Cunningham. Even if the necessary action had been properly before Judge Goldman, a district judge lacks jurisdiction to order anyone to appear without cause and without reasonable notice, or outside the ordinary process of the court. Such orders, entered without jurisdiction, constitute an abuse of judicial power.
102 Nev. at 560, 729 P.2d at 1334 (emphasis added).
Similarly, Judge Schouweiler, with no criminal or civil proceeding before him, proceeded to issue an order purporting to (1) contain findings of corruption against the district attorney, Mills Lane; (2) based upon such unilateral findings, disqualify and enjoin the district attorney from acting; and (3) appoint a special prosecutor to act in the place of the district attorney. As we held in Cunningham, “because nothing remotely resembling a proper order had been issued and served upon [Mr. Lane], in regard to any proper proceeding, Judge [Schouweiler] had no personal jurisdiction whatever over [Lane].”
By statute in Nevada, NRS 252.080, the district attorney is the public prosecutor within the county of his or her election. Although a district judge empanels a grand jury and has supervisory powers in connection therewith, the judge is not authorized to assume or usurp the functions of the elected public prosecutor. In Nevada, “the matter of the prosecution of any criminal case is within the entire control of the district attorney.” Cairns v. Sheriff, 89 Nev. 113, 115, 508 P.2d 1015, 1017 (1973). It is also clear that the district court does not have supervisory powers over the district attorney, and cannot dictate to the district attorney how he is to exercise his discretion or perform his functions. Under Nevada law, NRS 228.120(2), the attorney general has supervisory powers over the district attorneys.
Procedurally, if Judge Schouweiler received evidence indicating the district attorney had concealed evidence of serious crime in order to frustrate prosecution, the judge should have presented such evidence to the attorney general. The attorney general, *457under his supervisory powers, could have investigated the matter and, if convinced of wrongdoing, taken it to a grand jury under NRS 228.120(1). As it is, the judge invoked his own jurisdiction, listened to himself as complainant and then adjudicated the matter as judge in issuing the order. This type of procedure must, in my opinion, be soundly condemned as an intolerable abuse of judicial power. If judges, without a case or proceeding before them that properly invokes the court’s jurisdiction, can simply issue orders upon ex parte reports that affect lives as seriously as the order at issue, then our judicial system has lost all contact with concepts of procedural due process cherished so long in this state and nation.
As observed by the Dostert court, if the elected public prosecutor is unfit to prosecute a case, the public has a right to know why. And that question cannot be answered by a district court judge who invokes his own jurisdiction sua sponte in order to judge the merits of a cause in which the judge is also the complainant.1
Finally, I shall not unnecessarily prolong this concurrence by analyzing the due process violation resulting from the Schouweiler order. Suffice it to say that the complex of factors involving defamation of character, denial of statutory rights and privileges of office, and the appointment of another to act in his stead, all without notice or an opportunity to be heard, constitutes a denial of procedural due process which also renders the order void.
II. The Facts
As I have stated previously, I do not consider it either appropriate or within the constitutionally authorized powers of this court to weigh, characterize and draw inferences from the “facts” reflected by the grand jury transcript, newspaper stories and the invalid order issued by Judge Schouweiler. Simply stated, there have been no relevant findings of facts by a duly authorized *458tribunal or fact-finder in this matter. The “findings” of the order would not even pass muster in an inquisitional system, let alone the adversarial system of this state and nation. The order itself emphasizes that the guilt or innocence of the grand jury targets is not an issue. Nevertheless, the majority has drawn factual inferences from the grand jury proceedings that tend to supply credence to the void order. For example, the majority contends that the “respondent judges’ [I have already noted the error in attempting to credit Chief Judge Robin Wright with endorsing or participating in the contents of the order] determination is well founded that complaints tendered to the district court by victims of alleged sexual assaults, and by two investigating officers of the Washoe County Sheriff’s Department, warrant judicial inquiry.” In support of such a characterization and conclusion, the majority proceeds as follows:
“(a) The record reflects without contradiction that the district attorney’s deputy who presented the case to the grand jury did so in a manner that, as a natural consequence, precluded the grand jury from knowing about or considering the testimony of the investigating officers;”
My response: This finding of fact and conclusion represents, in my view, a one-sided perspective of the evidence. The affidavit of Chief Deputy District Attorney John Aberasturi who, in contrast to a finding by Judge Schouweiler that the “evidence indicates the case was handled by Mr. Mills Lane and Mr. John Aberasturi,” was the only representative of the district attorney handling the case, avers that he informed grand jurors of the nature of the potential testimony of the investigating officers. Although Aberasturi avers that this information was given to the grand jurors informally and after they had returned a finding of no true bill, he also stated that the grand jurors indicated the testimony would have made no difference. If Aberasturi is truthful in his averment, there was no attempt to conceal this information from grand jurors who, presumedly, upon hearing what the officers would say, could have recalled their finding and proceeded with the hearing, at least upon petition to the court. In any event, this is a factual dispute that can be properly resolved only upon evidence presented in a district court proceeding where all parties may be heard. Until such time as a proper evidentiary hearing occurs, I suggest that this court has no proper role in wrestling with alleged facts and drawing inferences therefrom.
“(b) In presenting the case to the grand jury, the district attorney’s deputy also depreciated the prosecution’s case by multiple violations before the grand jury of Nevada’s ‘rape shield law,’ NRS 50.090 and 48.069;” *459My response: I shall address this non-briefed, non-issue in detail later. I note at this juncture, however, that it first formally surfaced in Judge Schouweiler’s Answer to the district attorney’s Petition For Reconsideration Or For Rehearing filed on March 7, 1988. The respondent judge cited only the Nevada statute, NRS 50..090, as authority for his assertion that the district attorney violated Nevada’s rape shield law. Even if it could be accepted, for purposes of argument, that the rape shield law was somehow violated, I am at a loss to understand the relevance of such an assertion both as to the Schouweiler order that describes the only issue as being whether Lane withheld evidence of sexual assault, and the single issue before this court, i.e., whether Judge Schouweiler’s order is valid or effective for any purpose. Suffice it to say here that I strongly disagree with the majority’s finding of “multiple violations” of Nevada’s rape shield law.
“(c) The district attorney’s deputy depreciated and prejudiced the prosecution’s case by the introduction of hearsay testimony which, as a natural and apparently intended consequence, diminished the credibility of the complaining witnesses.”
My response: Again, my brethren in the majority have parsed the grand jury transcript and reached a factual determination that the deputy district attorney apparently intended to diminish the credibility of the complaining witnesses. I have read the entire record and certainly did not find a sufficient and reliable eviden-tiary basis for joining in such a determination. Nor is it my function or theirs to make such a determination in the matter before us. If this court were to begin with the premise that the deputy district attorney was presumedly performing his duties in good faith absent clear evidence to the contrary, the record before us would simply not justify the majority’s attribution of corruption in his presentation to the grand jury. I will illustrate this point further as I address the majority’s recital of facts and its apparent belief concerning the inadmissibility of hearsay testimony.
As previously observed, I do not consider it proper or relevant for this court to selectively recite facts, draw inferences or reach conclusions from the transcript of the grand jury proceedings. Because the majority has done so, I shall also recite from the record, using the pseudonyms adopted by my brethren.
On February 22, 1986, at approximately 2:00 a.m., Jane and Mary entered Nye Hall, a coeducational dorm at UNR. Both had been drinking, but Mary, by her own admission, was intoxicated at a level of “eight” on a scale of one to ten. The young women entered Nye Hall and went directly to the men’s side of the dorm on the second floor. After entering one of the men’s rooms and visiting for a time, the two went down the hall to another room, *460where the door was closed and the lights were out. The young women admitted themselves, awakened the two young men in the room, and visited for a time with them. Thereafter, Jane and Mary returned to the first room where the alleged sexual assaults occurred. Jane, who was wearing only a bra beneath her dress, engaged in sexual intercourse with one of the targets with whom she had enjoyed a previous romantic relationship. Jane protested, however, when her partner eventually suggested that they switch to Mary and another young man who had completed intercourse with Mary. The switch was nevertheless accomplished and Jane described the second act of intercourse as something she didn’t want from a young man who was a friend, but not a romantic friend. Jane also characterized the friend’s behavior during and after the episode by saying “he wasn’t a gentleman at all.” After leaving Nye, Jane testified that she went straight to her apartment, “got into bed and went to sleep.” Jane also testified that she didn’t call the police until five days later, when another football player (Roe) called her and said “I heard you guys were porn queens a couple days ago.” After the call, Jane and Mary went back to Nye Hall where they eventually encountered one of the targets. Jane testified as follows concerning that encounter:
Q. What did you say to him?
A. I made some threats to him.
Q. Like what?
A. Like he better get a lawyer.
Q. Did you tell him that?
A. Because what was running through my mind was I couldn’t believe what he did to me, and I couldn’t believe what happened that night. And I didn’t really know how to deal with it. And I wasn’t looking at it — I wasn’t — when I first looked at the situation, I was thinking “Okay, these are friends who are, you know, they are” — how do you explain? I wasn’t intending to make an issue out of it until I talked to my mother and told my mother what happened.
Q. When did you tell your mother?
A. Right after I left Nye Hall.
Q. Now you said — when you said to [target] “You better get a lawyer,” what did you mean? Were you saying that because you were mad at him, just as a threat?
A. I wanted him mostly to keep his mouth shut. It was really hard for me to believe that he would walk around telling people what he did. Because what he did was not right to me. And I had a hard time believing.
Mary, who was allegedly victimized by more of the targets than Jane, also testified in part as follows:
*461Q. Now you reported this to the police late Wednesday night [the alleged sexual assaults occurred the previous Saturday] right?
A. Yes.
Q. What brought you to call the police that night?
A. I didn’t want to call the police. I just wanted to go to the doctor, make sure I wasn’t pregnant.
Q. Did you go to the doctor’s?
A. Yes.
Q. Did you tell the doctor what happened?
A. [Jane’s] dad did.
Mary also testified concerning the call from Roe that had prompted Jane to go to the police. Mary, who said that she had a romantic relationship with Roe, indicated that Roe was upset with her.
Roe also testified before the grand jury in part, as follows:
Q. Do you know [Mary]?
A. Yes, I do.
Q. Have you had a romantic relationship with [Mary]? A. I wouldn’t call it romantic. Maybe sexual.
* * *
Q. Did you at some time hear about the happenings of that Saturday morning?
A. Yes.
Q. How did you hear about it?
A. I heard through a couple other guys on the floor. . . . Q. Was it kind of the hot news on the floor?
A. People were talking about it, yes.
Q. After the police talked to you, [Mary] called you?
A. ... She [Mary] said she felt she owed me an explanation of what had happened. I told her she didn’t owe me anything. And I did inquire about it, asked her “Why are you guys lying about this and trying to get [target] and [target] and all them in trouble?”
Q. What did she say?
A. She said it — I said “Why are you lying about and saying they raped you?” Was my direct statement. She said “They did not rape us. I feel they took advantage of us.”
Q. “They took advantage of us?”
A. That is what she said.
Another witness who was present for a time with several other young men and Jane and Mary, testified as to some sexually provocative statements Mary made to him prior to his leaving the room. I am not moved to extend my efforts further concerning *462factual assertions contained in the record but which continue to have no relevance in this original writ proceeding. Suffice it to say that the record presently before this court reflects a telling basis for the grand jury’s refusal to issue a true bill. I therefore consider it inappropriate for this court to characterize the performance of the deputy district attorney in any pejorative light. I accordingly disapprove of such conclusory characterizations by the majority as “prosecutorial omissions,” “prior failures of the prosecution,” “whether the district attorney’s office will proceed properly with the case in the future,” and “deputy’s derelictions.” Such aspersions have no bearing on the issue before us and can serve only to create predilections on the part of a successor judge who is charged with the obligation of judging the matter impartially.
III. Nevada’s Rape Shield Law
I respectfully suggest that this is another example of gratis dictum included in the majority opinion. The “issue” has no relevance to the issuance of prohibition by this court, was never briefed, and has no relationship to the issue of prosecutorial corruption raised in the Schouweiler order. Moreover, the majority has shepherded the “issue” to the point of ostensibly settling the law as to the applicability of Nevada’s rape shield statute to the state and a grand jury proceeding. I respectfully suggest that my brethren have created or yielded to a red herring, have incorrectly interpreted the statute and have, in any event, produced dicta that is non-binding as to this case or any other future case.
As noted, because the rape shield law is not an issue in this proceeding for an original writ, the parties have not briefed the matter or presented authorities to this court upon which an enlightened determination could be made. Nevertheless, the majority has elected to address the rape shield “issue” as if it were a relevant aspect of the prosecutor’s presentation to the grand jury. Although my thoughts on the “issue” will have no more legal weight or effect than those of the majority, I feel compelled to counterbalance what I consider to be a unilateral view of the subject.
The purpose of the grand jury has been described as follows: “to investigate possible offenses and to act as an independent barrier which protects the innocent from oppressive prosecution.” Losavio v. Kikel, 529 P.2d 306, 310 (Colo. 1974). It is also said that the grand jury proceeding “is an ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any *463person.” State v. Bell, 589 P.2d 517, 519 (Haw. 1979). Historically, the grand jury has also been viewed as a safeguard in protecting citizens against unfounded criminal prosecutions. State v. O’Daniel, 616 P.2d 1383, 1386 (Haw. 1980). Grand jury proceedings are secret (NRS 172.245) except under limited exceptions. Reasons for secrecy have been iterated by this court as:
(1) To prevent the escape of those whose indictment may be contemplated. (2) To insure the utmost freedom to the grand jury in its deliberations and to prevent persons subject to indictment, or their friends, from importuning the grand jurors. (3) To prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted by it. (4) To encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes. (5) To protect an innocent accused, who is exonerated, from disclosure of the fact that he has been under investigation.
Shelby v. Sixth Judicial Dist. Court, 82 Nev. 204, 210, 414 P.2d 942, 945 (1966).
It is thus seen that the grand jury functions in secrecy for the purpose of determining whether a crime has been committed and whether the target should be charged. Additionally, the grand jury is to secure the innocent from oppressive prosecution. In connection with the latter concern, Nevada statutory law, NRS 172.145(2), and this court have mandated the district attorney to disclose exculpatory evidence to a grand jury. Sheriff, Clark County v. Frank, 103 Nev. 160, 734 P.2d 1241 (1987). And in Frank, we implicitly determined that exculpatory evidence is that which has a tendency to explain away the charge against the target of the grand jury’s investigation. Id. at 164, 734 P.2d at 1244. Moreover, we also noted that the mission of the grand jury is “to clear the innocent, no less than to bring to trial those who may be guilty.” Id.
I reiterate that I have approached the facts with reluctance for I certainly have no interest in preventing prosecution or further investigation if either are warranted. In reading and re-reading the transcript, I have substantial difficulty reading allegations of sexual assault and kidnapping into the statements of the young women. It reads more like the statements of two young women who were inviting sexual activity, but perhaps with less enthusiasm from one young man than with another. The one “victim” testified that she mostly wanted one of the targets “to keep his mouth shut.” The other, who admitted she did not want to call the police, also said, according to the testimony of Roe, that the *464targets “did not rape us.” Given the equivocal testimony of the complaining witnesses, it was entirely appropriate that the grand jury hear the evidence bearing on the prior sexual activities of the young women in the UNR setting.
Nevada’s rape shield statute, NRS 50.090, by its terms has no application to the prosecutor and therefore has no bearing on this matter even if it were an issue in this original writ proceeding. The statute reads as follows:
In any prosecution for sexual assault or statutory sexual seduction or for assault with intent to commit, attempt to commit or conspiracy to commit either crime, the accused may not present evidence of any previous sexual conduct of the victim of the crime to challenge the victim’s credibility as a witness unless the prosecutor has presented evidence or the victim has testified concerning such conduct, or the absence of such conduct, in which case the scope of the accused’s cross-examination of the victim or rebuttal shall be limited to the evidence presented by the prosecutor or victim.
(Emphasis added.)
The language of the statute unambiguously prohibits presentation of evidence of a victim’s previous sexual conduct only by the accused. Moreover, the statute by clear implication acknowledges that the prosecutor may present such evidence. Similarly, NRS 48.069, cited by the majority, applies only to the accused and has no constraints whatsoever on the prosecutor. Nor does the majority’s attempt to exclude rape shield evidence on grounds that a grand jury proceeding is not a prosecution make any sense. The rape shield law simply does not apply to the prosecutor in trial or during any other proceeding. The majority’s view that because a grand jury proceeding is not a prosecution, the exceptional evidence under NRS 50.090 and 48.069 could not become legal evidence within the meaning of NRS 172.135(2) is also flawed. Again, such exceptional evidence applies only to evidence sought to be introduced by an accused. It has no bearing on the right of a prosecutor to introduce evidence of a victim’s prior sexual history. Moreover, none of the cases or the law review article cited by the majority supports its position. In each of the cases, People v. McKenna, 585 P.2d 275 (Colo. 1978), Summitt v. State, 101 Nev. 159, 697 P.2d 1374 (1985), State v. Hudlow, 659 P.2d 514 (Wash. 1983), the issue concerned only the right of a defendant to present evidence of a victim’s prior sexual history. In Hudlow, the prosecution actually elicited some evidence of a victim’s knowledge of sexual terms and the court never questioned the prosecutor’s right to do so. The only issue on the point *465was the extent to which the prosecutor had opened the door to further inquiry on cross-examination by the defendant. Similarly, in McKenna there was no indication that the prosecution was limited by Colorado’s rape shield statute even though the Colorado statute is not at all similar to Nevada’s statute. Thus, the court observed that “rather than completely denying the defendant’s rights in order to protect the victim’s privacy interest, the statute strikes a balance by conditioning admission of evidence of the victim’s sexual history on the defendant’s preliminary showing that it is relevant.” 585 P.2d at 279 (emphasis added).
The majority’s reference to Summitt is even more puzzling. I dissented in Summitt because I was convinced that the Summitt majority had unnecessarily attenuated Nevada’s rape shield statute in favor of an accused’s right to confront a complaining witness in order to show bias. In dissent, I stated as follows:
Another consequence of the majority ruling is that it actually violates the spirit of the rape shield law by accommodating a general attack on the credibility of the child-victim. In effect, the majority holds that the child’s prior experience as a four-year-old victim of sexual assault in the form of fellatio may be admitted as a basis for inferring that she contrived a charge of cunnilingus against Summitt. We are thus propelled into the concept that sexual history in general, as opposed to specific instances of sexual experience in particular, may be introduced to attack the credibility of a prosecutrix. It is clear that such a proposition substantially expands both the holding and the ratio decidendi of State v. Howard, supra. It also appears, given the tender age of the prosecutrix in the instant case, that the proposition created by this decision would apply in virtually all instances involving a child-victim whose sexual “history” is limited to an experience of sexual assault occurring at age four or above. I am simply unable to reconcile the majority ruling “with the necessity of accommodating the competing interests of complaining witnesses and defendants” by construing and applying the rape shield law “so as to uphold the constitutional rights of defendants, while creating the least possible interference with the legislative purpose reflected in the statutes.” I therefore conclude that the majority position is in conflict with the basic purpose and spirit of Nevada’s rape shield statute.
101 Nev. at 165-66, 697 P.2d 1278-79. In short, Summitt concerned itself with an expansive right of a defendant to circumvent Nevada’s rape shield statute and had nothing whatsoever to do with the right of a prosecutor to present evidence of a victim’s *466prior sexual history. The point is illustrated by referring to the majority’s rationale for reversing the conviction in Summitt:
In the instant case the defendant does not seek to impeach the credibility of the complaining witness by a general allegation of unchastity. Rather, the specific evidence was offered to show knowledge of such acts rather than lack of chastity. We agree with the ruling of the Supreme Court of New Hampshire in State v. Howard, supra, 426 A.2d at 462:
We believe that the average juror would perceive the average twelve-year-old girl as a sexual innocent. Therefore, it is probable that jurors would believe that the sexual experience she describes must have occurred in connection with the incident being prosecuted; otherwise, she could not have described it. However, if statutory rape victims have had other sexual experiences, it would be possible for them to provide detailed, realistic testimony concerning an incident that may never have happened. To preclude a defendant from presenting such evidence to the jury, if it is otherwise admissible, would be obvious error. Accordingly, a defendant must be afforded the opportunity to show, by specific incidents of sexual conduct, that the prosecu-trix has the experience and ability to contrive a statutory rape charge against him.
Id. at 163-64, 697 P.2d at 1377 (footnote omitted).
The law review comment cited by the majority, Comment, Evidence — Admissibility of the Victim’s Past Sexual Behavior Under Washington’s Rape Evidence Law — Wash. Rev. Code § 9.79.150 (1976), 52 Wash.L.Rev. 1011, 1033 (1977), also has no bearing on the “non-issue” before us. It neither states nor suggests that the dissimilar Washington statute operates as any form of constraint on the prosecution.
There is good reason why the majority has produced no law or precedent supporting their novel proposition. A prosecutor’s function is to achieve justice, not secure a prosecution or conviction. If justice demands a prosecution or conviction then the prosecutor must be diligent in seeking such a result. But in doing so, a prosecutor is not privileged to pre-judge guilt or innocence and manipulate or conceal evidence to achieve victory according to his or her predilection. On the other hand, under our adversary system, defense counsel is expected to assert every lawful and ethical effort to make certain that prosecutions or convictions occur lawfully and in accordance with the prosecution’s heavy burden of proof. Thus, under statutory law and the precedents of our court, a prosecutor is obligated to present exculpatory evi*467dence to a defendant for his or her use at trial, and to the grand jury for the consideration of grand jurors in their determination of whether to indict. Nevertheless, the majority concludes that if a prosecutor is permitted to present sexual history evidence of an alleged victim before grand juries “while as here the complaining witnesses are afforded no chance to explain or deny, it is likely few, if any, indictments would be returned.” I disagree with the conclusion for several reasons. First, in the instant case, the grand jury was perfectly free to recall Jane and Mary to explain or deny what other witnesses had said concerning them. There is not the slightest evidence that the deputy district attorney would have attempted to thwart such a request. Secondly, it would be rare, indeed, when a prosecutor felt ethically compelled to present or permit the presentation of such evidence. In the instant case, we are not called upon to determine whether the deputy district attorney exhibited the highest level of competence in moving the grand jury toward an indictment. Rather, we are called upon to determine whether a district court judge has jurisdiction to issue an order finding that a district attorney has manipulated the grand jury into a failure to indict by purposely and criminally concealing evidence, and thereafter disqualifying the district attorney and appointing a special prosecutor to act in his stead — all without notice and an opportunity to be heard. Finally, this court has no formal appellate concern over prosecu-torial incompetence in failing to convince a grand jury to indict; it does, however, have legitimate appellate concern over the subject matter of the nature set forth in the Schouweiler order when such orders have issued by a court having jurisdiction and in accordance with the demands of fundamental due process. It is therefore unrealistic to conclude that “few, if any, indictments, [will] be returned,” because the situation of indictment frustration resulting from a prosecutor’s corruption will be rare, and when discovered, will be effectively dealt with by the executive and judicial branches of government. I am unwilling to assume that Mr. Lane or any of our other district attorneys will tolerate incompetence among their deputies and that failure to present cases effectively before grand juries, magistrates or in trial will be condoned or disregarded.
Finally, I find difficulty relating to the majority’s treatment of the prosecutor’s obligation to present exculpatory evidence. Roe’s testimony indicating that Mary told him that the targets “did not rape us” is clearly exculpatory and the prosecutor’s failure to present it here would have been far more egregious than the prosecutorial omission in the Frank case. The majority has not specifically identified the foregoing testimony as part of the general hearsay complaint contained in their opinion but have *468impliedly impugned its propriety. I therefore suggest that the hearsay statement attributed by Roe to Mary is in any event admissible as an inconsistent statement. Although it is difficult to emphatically characterize Mary’s grand jury testimony as incul-patory, she was an alleged victim of sexual assault and was testifying in the supportive role of complaining witness. A number of courts have agreed that: “Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement.” People v. Green, 479 P.2d 998, 1002 (Cal.), cert. dismissed, 404 U.S. 801 (1971). See also U.S. v. Barrett, 539 F.2d 244 (1st Cir. 1976); State v. Whelan, 513 A.2d 86 (Conn.), cert. denied, 107 S.Ct. 597 1986). There are other bases for admitting the testimony that needn’t be discussed further at this point. Suffice it to say that none of the prosecutor’s supposed derelictions or omissions can be faulted as violations of Nevada’s rape shield statute. If the majority desires to impose constraints on prosecutors as the rape shield statute does on those accused of committing crimes, then resort to the legislature would be appropriate. In the meantime, there are few reasons to be concerned about the rare circumstance when a prosecutor would feel compelled to provide rape shield type information to grand juries; and when and if the occasion arises, the secret nature of the proceeding would provide a major safeguard to a victim’s reputation.
IV. Hearsay Diminishing Victims ’ Credibility
The majority criticizes the prosecutor for permitting the hearsay testimony of two persons, Doe and Roe, who were not present at the time of the alleged assaults. I have previously covered part of Roe’s testimony concerning his telephone conversation with Mary. Because the prosecutor is not constrained by the rape shield law, Mr. Aberasturi committed no violation of law in asking Roe about the nature of his relationship with Mary. Roe’s testimony concerning his sexual relationship with Mary explains why she called him and indicated she owed him an explanation. The testimony thus provided context and reason to the conversation as opposed to an attempt to besmirch Mary’s character or credibility.
Doe was present in the room with several other young men and Jane and Mary before the alleged assaults occurred. He did not know either of the complaining witnesses personally, and left the building prior to the time of the alleged incidents. He testified, however, that as he walked into the room, Mary, who was “real intoxicated,” said “You know, you got a nice ass.” Doe said he was “just messing around with her because she was real drunk, just tapping her.” Doe testified that Mary then said to him, “You *469don’t want to mess with anybody that gives the best h— in Reno.” Unquestionably, the testimony was demeaning to Mary, but it did reveal a mind state that tended to explain why the young women were present in the men’s side of Nye Hall at such an early hour. NRS 51.105 excepts from the hearsay rule statements of a declarant’s then existing state of mind or emotion such as intent, plan, design, motive or mental feeling.
In any event, I reemphasize my frustration over the majority’s demeaning criticism of the deputy district attorney’s presentation to the grand jury. As this court has previously held: “It is not the province of the court to sit in review of the investigations of a grand jury as upon the review of a trial when error is alleged. . . .” Ex parte Stearns, 68 Nev. 155, 159, 227 P.2d 971, 973 (1951). We have also held that even though “inadmissible hearsay testimony may have been adduced before the grand jury contrary to NRS 172.260(2), still if there is the slightest sufficient legal evidence and best in degree appearing in the record the indictment will be sustained.” Robertson v. State, 84 Nev. 559, 561-62, 445 P.2d 352, 353 (1968), reaffirmed and cited in Frank, 103 Nev. at 165, 734 P.2d at 1245.
To my knowledge, this court has never involved itself in considering the competence of a prosecutor in failing to secure an indictment. I know of no basis for so doing in the instant case. Whether Mr. Aberasturi erroneously permitted hearsay expressions elicited by grand jurors or from his own methodology in questioning witnesses is simply not an issue before this court.
V. Notice And Opportunity To Be Heard
The district attorney, in his original Petition For Writ Of Prohibition and his affidavit filed in support thereof, advised this court that the Schouweiler order had been issued and filed without notice and an opportunity to be heard. Indeed, Mr. Lane’s affidavit details at length how the first time he heard of the order and obtained a copy thereof was from the news media. The order, which was filed at 4:55 p.m. on February 12, 1988, had somehow been immediately distributed to the news media but had not been delivered to the district attorney.
My brethren in the majority deprecate the district attorney for not having provided “legal authority demonstrating that a district attorney is entitled to notice and an opportunity to be heard prior to being enjoined from investigating a particular case.” With profound respect for my colleagues, I suggest that this court has, on numerous occasions, granted relief on the basis of far less information and issues far less compelling. Indeed, Judge Schouweiler’s belated reference to Nevada’s rape shield law was “supported” only by reference to the statute itself which, as I *470have heretofore demonstrated, utterly fails to sustain his position on the point. And yet the majority researched and produced nonsupportive case authorities attempting to justify the honorable judge’s gratuity without a whisper about the judge’s complete lack of authorities on the point. Surely this court could have cheerfully accorded the same respect to the district attorney on so clear a point as a due process failure to provide notice and an opportunity to be heard. Moreover, this court was surely familiar with its own recent decisions involving far less egregious circumstances in the Collier and Cunningham cases discussed above.
For the reasons hereinbefore discussed in part, I unreservedly concur with the result reached by the majority in granting prohibition and conditionally concur in remanding the matter for a hearing before another judge. Prohibition is appropriate to recognize and deal with the void order and Judge Schouweiler’s ongoing activities with the illegitimate special prosecutor. It seems clear, however, that because Judge Schouweiler was without jurisdiction in the premises, a judge hearing the matter on remand would be equally without jurisdiction. And yet, to merely issue prohibition and declare the order void would be unfair to the district attorney who stands publicly accused and essentially “found guilty” of criminal misconduct. A healthy judicial conscience could not, in my judgment, countenance leaving the district attorney in such a state of limbo. Moreover, if indeed a rightful criminal prosecution has been thwarted, the demands of justice should be forthrightly secured.
Inasmuch as Judge Schouweiler has issued both accusations and findings concerning the district attorney, upon remand I would treat Judge Schouweiler as the complainant and use his void order as a complaint for the purpose of providing a case upon which jurisdiction could attach in the determination of the district attorney’s status by a different judge. Otherwise, I have grave difficulty with the jurisdictional basis for a hearing on remand, and can concur only in the issuance of prohibition.
Mowbray, J., concurs.In Dostert, the circuit court judge, acting on an ex parte contact, concluded that the prosecuting attorney had violated the Code of Professional Responsibility, had evinced an unwillingness to prosecute, and was motivated by “retribution.” The court said that when the prosecuting attorney committed ethical violations it was the responsibility of the judge to report the matter to the appropriate state bar committee, and that attorney discipline was the sole responsibility of that committee and the Supreme Court of Appeals of West Virginia. 260 S.E.2d at 285, n.8. In the instant case the same approach would apply if the district attorney had committed ethical, as opposed to criminal, violations. Moreover, if Judge Schouweiler has abused his judicial office without evidentiary foundation, the district attorney’s remedy exists in the filing of a complaint with the commission on judicial discipline.