concurring in part and dissenting in part:
I concur with the majority’s rejection of the invitation to adopt the standard of admissibility set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), but I would reverse the judgment of conviction, because I conclude that the denial of Higgs’ motion to continue the trial resulted in violation of his due process rights.
Higgs’ motion to continue the trial was based upon the fact that his expert, Chip Walls, did not have adequate time to evaluate the conclusion of the FBI toxicology report. The conclusion of the report, that succinylcholine was found in Augustine’s urine, formed the basis of the State’s theory of the case.
If ever a continuance of the trial date should have been granted, the instant case cries out for that type of relief. Can it be said that there was any earth-shattering reason to proceed to a trial on a murder charge when discovery was incomplete and the FBI toxicology report lacked being a finished product?
At the time of the initial arraignment, December 22, 2006, appellant waived the statutory time to be brought to trial. Accordingly, the judge set the trial for July 16, 2007. Subsequently, the trial was moved up to June 18, 2007, per stipulation and order.
When a problem with discovery developed, appellant filed a motion to continue the trial date, which the State opposed.
A hearing on the motion to continue trial was held on May 25, 2007. Even though the defense presented information that defense *24expert Walls had insufficient information to evaluate Ms. Montgomery’s data and results properly, and insufficient information to give expert testimony at the trial on behalf of appellant, the court denied the continuance, ruling that the defense expert was free to testify that he did not trust the validity of the materials received from the FBI.
An excellent statement of the due process analysis is contained in Ungar v. Sarafite:
The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.
376 U.S. 575, 589 (1964) (citations omitted).
In this case, there simply is nothing concrete in the record indicating why this case, having been set for trial six months after the arraignment, could not have been set out further.
This court reviews a district court’s decision with regard to a motion to continue for an abuse of discretion. Rose v. State, 123 Nev. 194, 206, 163 P.3d 408, 416 (2007). While each case turns on its own circumstances, this court has long recognized the cornerstone principle of due process, that “[ajccuseds have the right to be informed of the nature and cause of the accusation against them and must be afforded a reasonable opportunity to obtain witnesses in their favor.” Zessman v. State, 94 Nev. 28, 31, 573 P.2d 1174, 1177 (1978) (citing Cole v. Arkansas, 333 U.S. 196 (1948)).
In determining whether denial of the defendant’s request for continuance violates due process, “the focus must be on the need for the continuance and the prejudice resulting from its denial.” Manlove v. Tansy, 981 F.2d 473, 476 (10th Cir. 1992) (affirming grant of habeas relief — denial of continuance denied potentially crucial evidence to defendant). So, for example, there would be no denial of due process if discrediting Ms. Montgomery hypothetically would have made no difference to the outcome of this case. See Padgett v. O’Sullivan, 65 F.3d 72, 75 (7th Cir. 1995). Similarly, if Mr. Walls hypothetically were merely a cumulative witness, Higgs would not be able to establish a due process violation. See Foots v. State of LA., 793 F.2d 610, 611 (5th Cir. 1986).
*25However, if the failure to grant a continuance impinges on the defendant’s rights to compulsory process and the defendant loses critical impeaching or supporting witnesses as a result, his due process rights are violated. See State v. Timblin, 834 P.2d 927, 929 (Mont. 1992) (citing Singleton v. Lefkowitz, 583 F.2d 618, 625 (2d Cir. 1978) (conviction reversed)); March v. State, 734 P.2d 231, 234 (N.M. 1987) (conviction reversed).
The majority concludes that Higgs failed to demonstrate that he was prejudiced by the denial. I disagree. I conclude that Higgs was prejudiced because his expert, Walls, one of the country’s few experts on succinylcholine, did not testify at trial. While it is true that the defense had the toxicology report in its possession for 24 weeks, Walls did not believe the State had sent a complete report. Walls stated that the packet was incomplete and did not include backup data or documentation. The full report was the crux of the State’s case against Higgs. Therefore, pursuant to Zessman, Higgs had the right to be informed of the nature of the accusation against him, including the complete FBI toxicology report. The lack of information not only affected Higgs’ ability to obtain witnesses in his favor, it affected his ability to cross-examine the State’s expert witness, Madeline Montgomery.
Why should a defense attorney be forced into a position of cross-examining an expert witness when the expert report is incomplete? If the district court’s decision to deny the appellant’s motion to continue the trial date is upheld by this court, it would allow incomplete discovery to be used to the detriment of a criminal defendant and appear to be a blatant denial of due process of law. Just because defense counsel cross-examined the State’s expert witness during the motion in limine does not indicate that defense counsel had sufficient information in the long run to place his- defense expert on the stand at trial in light of an incomplete toxicology report. See Zessman, 94 Nev. at 32, 573 P.2d at 1177 (citing O’Brien v. State, 88 Nev. 488, 500 P.2d 693 (1972)).
This court has observed that a defendant’s right to discovery is tangentially related to the right of confrontation. See Stamps v. State, 107 Nev. 372, 376, 812 P.2d 351, 354 (1991). Here, I conclude that in order for Higgs’ counsel to have prepared an effective cross-examination of Montgomery regarding the succinylcholine found in Augustine’s urine, Higgs should have been afforded more time. The continuance would have allowed Walls time to evaluate Montgomery’s technique and conclusions, and to draw his own inferences. While Walls had the packet from the FBI toxicology lab for months before the trial, I note that it was not until the district court issued an order directing the State to provide Higgs with the FBI toxicology report that the State sent the report to the defense. Moreover, Walls stated that the packet the FBI sent was incomplete *26and that significant data was missing. Walls felt the FBI packet was missing important information about the verification process, such as backup data. This was vital information for Walls because during the testing of Augustine’s urine for succinylcholine, one of the FBI’s testing machines had malfunctioned. Given the volatile nature of succinylcholine and the fact that there were questions regarding the preservation of the urine and tissue sample, I conclude that due process required that Higgs be given more time to prepare what was arguably the most important piece of evidence. I am not persuaded by the majority’s argument that Higgs could have effectively presented his arguments regarding the FBI toxicology report by merely cross-examining Montgomery. An effective cross-examination itself requires time and preparation. Likewise, because of the incomplete information provided to Walls by the State, Walls did not, and would not, testify for the defense at trial. The lack of expert testimony on behalf of Higgs was nothing less than devastating to the defense effort.
For the reasons set forth above, I dissent and would reverse the judgment based on the fact that the district court abused its discretion when it denied Higgs’ motion to continue.