The Uncertainty of the Criminal Justice System Creates Anxiety
Getting arrested or charged with a crime in Nevada is just the first step in a long process consisting of preliminary hearings, motion practice, negotiations of plea agreements, trials, sentencing hearings and the appeals process. The uncertainty of the criminal justice system creates increased anxiety and emotional and financial stress sometimes causing people to cooperate or plead guilty prematurely because the evidence is "stacked" against you or just to "close" out the case to avoid further anxiety and stress. However, many times what police tell you is "definitive evidence" is not and can be effectively challenged through conducting a thorough investigation, understanding the inconsistencies and weaknesses of witnesses, forensics i.e., fingerprints, ballistics, or blood results etc. and other evidence resulting in a favorable resolution. View the illustration of how Criminal Justice System works.
Notice of Summons, Personal Recognizance Release ("OR") and Posting and Exoneration of Bail
- It is possible to arrange for the issuance of a Summons in lieu of an arrest warrant - allowing for someone to appear voluntarily in court without fear of arrest.
- If already in custody, Pre-Trial Services will interview and make a recommendation whether you are eligible for a personal recognizance release ("OR"). This generally occurs in non-violent offenses with first time offenders and when Pre-Trial can verify employment status and community ties.
- If a Judge grants an OR in Court then typically we can arrange for a "walk-through" where you are "booked" in jail. This process generally takes between 4 - 6 hours consisting of a photograph, fingerprints, a DNA swab and taking of biographical information.
- You can post either cash bail which is returned to you in full at the conclusion of the case or surety. The posting of cash bail is deposited at the Court clerk’s office.
What happens at the 48 Hour and 72 Hour Hearing?
- Within 48 hours, a Justice of Peace is assigned and the case is reviewed in chambers to determine whether the defendant should be released or the bail adjusted because of stacked charges or other reasons. The judge has limited information and an attorney may contact the assigned Justice of the Peace to provide information.
- Within 72 hours, NRS 71.178 requires that a person is arraigned and provided with the charging document. Bail or release can be considered at that time and if the prosecutor must explain any delay in charging.
Bail, the Standard Bail Schedule and Stacked Charges
- Bail is set using the Standard Bail Schedule and the charges as selected by the arresting officer. The bail amounts in the Standard Bail Schedule are set by category of crime, for example, $10,000 for a Class C felony; $20,000 for a Class B felony etc.
- The bail amount may increase if the arresting officer charged the defendant with multiple felonies for the same event.
What happens at a Bail Hearing?
- This is the first time where you can seek a bail reduction. Many times the Judge will require you to file a written motion if the State wants time to object by filing an opposition.
- In some cases, the Judge may have enough information to order a lower bail amount without the necessity of filing motions and setting of a separate hearing.
- The purpose of bail (other than for capital murder) is to make sure that you will appear for court and not represent a safety risk to the community.
- The Court considers the nature and circumstances of the charges, financial ability to post bail, a person’s character and individual ties to the community, family members and status of employment and criminal history.
- The Court may impose additional conditions to include house arrest and/or intensive supervision (“IS”) with GPS monitoring.
Right to a Speedy Trial
- NRS 178.556 states if the State cannot show good cause for the delay, district court MAY dismiss a Criminal Complaint when the defendant is not brought to trial within 60 days after arraignment.
- The Court has recognized that the condition of the calendar, the pendency of other cases, the public expense, the health of the judge, and even the convenience of the court are good causes for a continuance.
Pre-Trial Writ of Habeas Corpus
- You can challenge the sufficiency of the evidence to establish probable cause within 21 days from the filing of either the Preliminary Hearing or Grand Jury hearing transcripts.
- There are specific issues relating to grand jury proceedings where the State often fails to present exculpatory evidence, not give proper legal guidance, and grand juror bias.
What is the Preliminary Hearing?
- "In Custody Setting" is where a person in custody (unless waived) is entitled to a Preliminary Hearing within 15 days of the Initial Arraignment.
- Preliminary Hearings are generally successful because they allow the defense to develop inconsistencies with the witnesses, lock in testimony, and better evaluate credibility. This may result in more favorable offers to negotiate the case after bringing out weaknesses of the State’s case or “new” evidence which allow for the filing of a motion to dismiss the case or suppress the evidence because of legal and/or statutory violations.
- You must waive the 60 day speedy trial right if you file a Petition for Writ of Habeas Corpus
so the State can file a response and the Court can conduct a hearing.
- A favorable ruling can lead to an order dismissing some or all of the charges.
Probable Cause to Support a Search Warrant
- No warrant shall issue but on probable cause, supported by Oath or Affirmation, particularly describing the place or places to be searched, and the person or persons, and thing or things to be seized.
- The police may only search the specific areas and things for which there is probable cause to search.
- If probable cause does not exist, then evidence obtained subsequent to a violation of the Fourth Amendment that is tainted by the illegality and is inadmissible known as “Fruits of the Poisonous Tree.”
The exception to this exclusionary rule is if the police conducted acted in good faith reliance. This exception does not apply if:
- The issuing Judge was mislead by information in the affidavit;
- The affidavit was so lacking in probable cause that no reasonable law enforcement officer could believe it was valid;
- The warrant was so facially deficient in failing to particularize the place to be searched.
What is a Marcum Notice, Grand Jury Proceeding and Return of Indictment?
- “Marcum Notice” provides notice of the time, place, and date to appear or present exculpatory evidence at the grand jury proceeding.
- In contrast to a Preliminary Hearing, a Grand Jury proceeding is “secret” and does not allow for cross-examination by the criminal defense lawyer.
- The State must only present sufficient evidence showing probable cause that the accused committed the alleged offense based on “slight, even ‘marginal’ evidence.”
- The State is obligated to present to the grand jury any known evidence that “will explain away the charge” but is not required to negate all inferences which might explain an accused's conduct.
- At the end of the presentment of evidence, the Grand Jury almost always returns an Indictment which serves as the formal charging document in District Court.
The Decision to Plead Guilty and the “Alford Plea”
- The negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.
- A plea agreement reached in Justice Court on a Gross Misdemeanor or Felony Charge requires an Unconditional Waiver of the Preliminary Hearing (“UWPH”).
- The parties can negotiate all aspects of the resolution from stipulating to a certain sentence or taking away the State’s right to argue for a prison term.
- You can also negotiate a reduction or a “step down” after probation is completed which allows you to ultimately end up with a Non-Felony Conviction.
- You can also negotiate a guilty plea agreement without actually pleading guilty pursuant to the “Alford” decision. However, as part of this plead you have to acknowledge that the State has evidence that may result in a conviction.
- This is an important consideration if you anticipate the “victim” will also sue you for money damages in a civil lawsuit.
Invocation of the Fifth Amendment Right
- The client generally does not testify at trial and instead invokes the Fifth Amendment right
because many times the risks of cross-examination and impeachment outweigh the benefit.
- Many people hold a pre-conceived belief that you should defend yourself by telling what happened if you have nothing to “hide” or if falsely accused.
Self Defense and Others and No Duty to Retreat Rule
- Self-Defense exists when there is a reasonably perceived apparent danger or actual danger.
- The jury must find you Not Guilty if the State cannot prove beyond a reasonable doubt that the defendant did not act in self-defense.
- There is no duty to retreat if a person reasonably believes that he is about to be killed or seriously injured by his assailant except if you are the “original aggressor” unless you can prove that you made a good faith “attempt to retreat” or to “decline any further struggle” before the mortal blow was given.
Defense of Involuntary Intoxication
- This generally happens when someone slips you a “mickey” which causes you to commit a criminal act. This involuntary defense does not apply if you were consuming even a legal mixture i.e., alcohol and prescription medications because of the synergistic effect
Defense of Entrapment
- This occurs where the State presents the opportunity to commit a crime and the defendant is not predisposed to commit the act. i.e., a confidential informant initiates contact but you call back to sell drugs, stolen property etc.
Defense of Necessity and Duress
- A person may be forced to take an unlawful action that otherwise they would not have taken but for some unforeseen circumstance i.e., avoiding an accident which cause you to spin out of control into oncoming traffic.
Presentence Investigation Report ("PSR") and Sentencing
- A Presentence Investigation Report
(“PSR”) is required for all Gross Misdemeanor and Felony cases. In some limited circumstances, the Judge will allow for a Gross Misdemeanor Sentencing Worksheet.
- Interviews are conducted by the Division of Parole and Probation
(“P&P”) to aid the Judge in sentencing. It is important to object to any inaccuracies contained in the PSR since it is used by federal, state and/or local agencies for the purpose of prison classification, program eligibility and parole consideration.
Probation and the Interstate Compact Act
- A Judge will order the term of probation not to exceed 3 or 5 years.
- You earn the equivalent of 2/3 for every month off the back end for Category C, D and E Felonies i.e., if the term of probation does not exceed 3 years then you would serve approximately 16 months on probation.
- You can file a Motion for Early Termination of Probation based on certain factors even if you have a Category B Felony