Getting arrested or charged with a crime in Nevada is devastating to you and your family members but 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 in Nevada in this page:
Charges can be Filed by Way of a Criminal Complaint or Indictment
- The State of Nevada can initiate a prosecution by filing a Criminal Complaint in Justice Court or seeking an Indictment before a Grand Jury. The police can file for an arrest warrant (under seal) in either case by attesting to adequate probable cause. This similarly applies to applications for search warrants. Many times the probable cause requirement is lacking and can be challenged by filing a Motion to Dismiss or Suppress the evidence.
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 we have knowledge of the investigation and can work it out with the Detective or prosecutor.
- 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. Learn more about the Nevada Personal Recognizance Release process.
- 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.
- In the alternative, you can post either cash bail (which is returned to you in full at the conclusion of the case) or surety which is arranged through a bail bonds company.
- The posting of cash bail is deposited at the Court clerk’s office where a Bail Bonds company generally requires a cash premium of 10%-15% of the bond together with collateral or some other form of security.
- -At some point during the case, we seek to exonerate the bond so you no longer have to report to the bail bonds company. However, you may still be contractually liable to the bail bonds company for the balance of payment.
- A Justice of the Peace conducts a probable cause hearing by reviewing the police report and other supporting documentation within 48 hours after the person has been arrested referred to as the "48 Hour" hearing.
- This is often time misconstrued because a person never appears for a "hearing."
- However, a person does appear for a hearing no later than 72 hours after arrest referred to as the "72 Hour" hearing. This hearing is also referred to as the "Initial Arraignment" where the person is served with the Criminal Complaint and where the Judge can address bail. Learn more about State of Nevada’s Arraignment Process.
- 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.
Learn more about Bail Laws in Nevada.
- "In Custody Setting" is where a person in custody (unless waived) is entitled to a Preliminary Hearing within 15 days of the Initial Arraignment.
- The Judge will set an “Out of Custody Setting” in the ordinary course typically months after the Initial Arraignment. It is not uncommon for either side to continue a Preliminary Hearing to obtain outstanding discovery or to continue to negotiate a resolution to the case.
- The Judge determines whether the State has established probable cause subject to defense counsel’s cross-examination. This often happens because of the State has an extremely low burden of showing only “slight to marginal” evidence. If this occurs, the case will be forwarded to the Clark County District Court for the setting of an Arraignment and trial dates
Learn more about the Custody Setting in Nevada.
However, 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.
Understand more about the Preliminary Hearing Process in Nevada.
- 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.
- “General searches” are not allowed. The police may only search the specific areas and things for which there is probable cause to search.
- Probable cause requires “trustworthy facts and circumstances which would cause a person of reasonable caution to believe that it is more likely than not that the specific items to be searched for” are subject to seizure and at the place to be searched.
- 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 upon an objectively reasonable search warrant. This exception does not apply if and subject to a Motion to Dismiss and/or Suppress if:
- The issuing Judge was mislead by information in the affidavit that was knowingly or recklessly false;
- The issuing judge abandoned his or her detached and neutral judicial role;
- The affidavit was so lacking in probable cause that no reasonable law enforcement officer could believe it was valid; or
- The warrant was so facially deficient in failing to particularize the place to be searched or the things to be seized that executing officers could not reasonably presume it to be valid.
Learn more about Nevada Search Warrant laws.
- There are times when the State may elect to serve a “Marcum Notice” instead of conducting a Preliminary Hearing. This 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. This explains an old adage that a prosecutor can indict a “ham sandwich.”
- Like the burden at a Preliminary Hearing, 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.
Learn more about Marcum Notice, Grand Jury Proceeding and Return of Indictment in Nevada.
- 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.
- Also, 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.
- 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.
Learn more on how Writ of Habeas Corpus works in Nevada.
- A decision to plead guilty is often the product of extensive negotiations after conducting an investigation, filing motions, creating weaknesses in the prosecution’s case and developing the defense strategy.
- 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.
- A “Step Down” allows for a reduction from a Felony to a misdemeanor conviction after obtaining an honorable discharge from probation.
- The “Alford Plea” is a form of a guilty plea without having to actually plead guilty. It is acknowledgment that the State has evidence that may result in a conviction.
- This is important if you anticipate a civil case where the “victim” is also seeking monetary damages because a straight guilty plea serves as conclusive liability in the civil case leaving you without a defense.
Read more about Plea Deal.
- There is a right to a speedy trial within 60 days if you are still in custody.
- The decision to invoke or waive this right is strategic and depends on the status of the defense’s investigation including availability of witnesses and defense experts.
- The parties are required to produce a Witness List 5 days before trial for percipient witnesses and 21 days before trial for experts. Experts may be required to bolster the defense theory or to rebut the prosecution in areas of eyewitness identification, fingerprint examination, ballistics and other areas of forensic science.
- Voir Dire is the questioning of the jury panel to decide who ultimately sits in judgment of you. This is the key to ensuring that the jury panel is fair and impartial. Many times the judge tries to salvage a biased juror and protect the record by asking a series of questions designed to demonstrate a juror’s willingness to obey the law.
- These improper rehabilitative procedures corrupt the voir dire process by leaving biased jurors. The defense must make contemporaneous objections and take steps to weed out and prevent improper juror rehabilitation.
- Ultimately, each side has the right to challenge a juror for cause or exercise a peremptory challenge to remove unfavorable jurors.
- As everyone knows, the State has to convince a jury “unanimously” that someone committed the crime beyond a reasonable doubt.
- There are many instances during trial where the Prosecution ambushes you with “new evidence” or commit prosecutorial misconduct that can result in a mistrial. If the trial is going well, you may choose to seek a curative instruction where the Judge instructs the jury to disregard certain evidence instead of starting all over again.
- 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.
- This is obviously one of the most important strategic decisions made during trial because 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.
- The jury is instructed that they cannot draw an adverse inference from invoking the Fifth Amendment right. It is incumbent upon the lawyer to probe each juror on whether they can follow this instruction during voir dire
- The settling of jury instructions are often contentious as the parties will offer competing instructions.
- The Court must tailor instructions to the facts rather than simply relying on “stock” instructions.
- It is equally important to ensure that the jury is provided the proper jury instructions which accurately reflect the law and are not misleading, inaccurate, or incomplete.
- Specific jury instructions that remind jurors that they may not convict the defendant if proof of a particular element is lacking should be given upon request. A positive instruction as to the elements of the crime does not justify refusing a properly worded negatively phrased instruction.
- Also, the Court should instruct the jury on your specific “theory of defense” and other affirmative defenses that is supported by the evidence, “no matter how weak or incredible that evidence may be.”
- However, the Court does not commit reversible error by refusing a jury instruction on defendant's theory of the case that is substantially covered by other instructions.
- 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. This is also true of self-defense of others.
- 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.
- The bottom line is that a jury must acquit you if it has a reasonable doubt whether or not the defendant acted in self-defense.
Understand more about Self Defense Laws in Nevada.
- This generally happens when someone slips you a “mickey” which causes you to commit a criminal act. This is a difficult defense to establish as many drugs will not be detected at the time someone is tested. 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
- In limited circumstances, a medical defense not previously diagnosed could explain the non-volitional action justifying a medical/involuntary affirmative defense.
Read more about Nevada Intoxication Defense.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. Even if this occurs this defense will not apply if you make follow-up contact despite the State presenting the opportunity i.e., a confidential informant initiates contact but you call back to sell drugs, stolen property etc.
- The purpose of the entrapment defense is not to excuse criminal wrongdoing but to serve as a prophylactic device to prevent police misconduct. The function of law enforcement is the prevention of crime not manufacturing of crime.
- 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.
- In contrast, duress typically happens where another person forces someone to commit a crime through threatening bodily harm or death.
Read more about the Necessity Defense.
- 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.
- The PSR includes background information such as family support, employment status, financial information and provides the criminal history reported by the National Crime Information Center (“NCIC”).
- P&P also provides a list of “special conditions” if relevant to the charge i.e., substance abuse evaluation, no contact with certain people, and abstain from gambling or alcohol during the term of probation. The defense can argue against any terms and conditions of probation.
- Generally, you should never discuss any of the facts surrounding the charge with P&P and reserve making a statement addressing acceptance of responsibility directly to the Judge.
- P&P will also contact the victim to obtain additional information including a statement and supporting documentation to prove-up restitution. If the victim chooses to provide an oral statement to the Judge, the State must provide the statutory Notification. Such statement is under oath and subject to cross-examination.
- The key component of the PSR consists of the sentencing recommendation. It is unclear how much weight, if any, a Judge takes the recommendation into consideration.
- The State also has the right to make a sentencing recommendation unless the State agreed pursuant to negotiations to a stipulated sentence, not to make any recommendation, or even to not oppose probation.
- In preparing for sentencing, the defense will generally file a Memorandum to focus the Judge on the relevant extenuating and mitigating circumstances as well as the person’s individual characteristics and community ties.
- 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. It is always important to make sure that the probation officer has no objection.
- The Interstate Compact allows for courtesy supervision in your state of residence. However, if your State does not accept your case for supervision or if the offense makes you ineligible, P&P may still authorize you to relocate to your home state and report by mail.
Learn more from the Nevada’s Interstate Commission for Adult Offender Supervision.
- There are issues that arise during trial which lends itself to filing post-trial motions seeking a new trial or even an aquittal.
- While the Notice of Appeal must be filed with 30 days from the Judgment of Conviction, these post-trial motions serve to toll this time.
- There are 2 different forms of criminal appeals. A Fast Track appeal carries shorter breifing schedule and time limitations bringing the appeal to a quicker resolution. This generally represents the majority of criminal apppeals except convicitons involving a Category A Felony.
- The Fast Track Appeal consists of the notice of appeal, rough draft transcript request form, fast track statement and fast track reply.
- The fast track statement is filed within 40 days from the date that the appeal is docketed in the court.
- The second form of criminal appeal consists of full breifing. You can file a motion for leave to seek full briefing and removal from the Fast Track program if there are issues of substantial precedential, constitution or public policy questions or where a case is legally or factually complex, where issues of facts are numerous.