Las Vegas Defense Attorney

Stages of a Criminal Case

Nevada Criminal Cases from Start to Finish

1st Stage

Types of Crimes

There are three (3) classifications or levels of crimes, misdemeanor, gross misdemeanor, and felony.

Misdemeanor – A crime punishable by a fine of not more than $1000.00, or imprisonment in jail for no more than six (6) months.  These types of crimes are heard and decided in Justice Courts and Municipal Courts.

Gross Misdemeanor – A crime punishable by a fine of not more than $2000.00; or imprisonment in the county jail for no more than one (1) year; or by both a fine and jail sentence.  However, the statute for any particular gross misdemeanor, at the time the crime was committed, may require a different penalty.

Felony – A crime which is punishable by one (1) year or more in the state prison.  Certain felonies carry a punishment of life in prison, or the death penalty.  These types of cases begin the prosecution process in the County Justice Courts, and trial in held in the District Courts.  There are also different categories of felonies, “A” through “E”, with differing sentences determined by the severity of the felony.

Retaining an Attorney

You have a right to retain an attorney at any time during the progression of your case, as well as changing attorneys if you are not satisfied with that attorney’s representation of you.  Depending on the type of crime you are accused of, it may become mandatory for you to be represented by counsel.  However, it is in your best interest, should you decide to retain a private attorney, to do so at the very beginning of your case.

If you cannot afford a private attorney, you will be interviewed by the Public Defender’s Office to determine whether or not representation is available through this agency.  If you meet the requirements of the agency, a Public Defender can be appointed to represent you.  If, however, this agency determines that you do not qualify for assistance, it may be necessary to retain private counsel.

The Arrest

Arrests are based on probable cause.  There is no simple definition of “probable cause.”  However, the police officers must rely on good information, or a belief that the information they have obtained is correct.  This information includes any active bench warrants or active arrest warrants which the officer learns are outstanding. The officer may conduct a search of your person to determine if you have any illegal drugs, needles, or weapons.  If the officers are not going to be asking you any questions concerning the crime itself, they are not required to read the Miranda Rights to you.

Booking Procedures

Once you arrive at any jail or detention center, you will most likely start out in the holding cell.  From there, your photo, or mug-shot will be taken, as well as your fingerprints.  Another more thorough search will be conducted, and routine questions concerning background information will be asked.
If your case began with a summons instead of an arrest, you may be required to submit to the booking procedures as outlined above.  This is known as a walkthrough.  In these instances, you will normally be granted an own recognizance release after the procedures are completed.

Family members, friends, and attorneys will be able to obtain information concerning your arrest by contacting the detention facility in which you are being held.  They should have your full name, social security number and date of birth available to provide to the information officer.  This will eliminate the chances of any misinformation, or another party’s information, being given to the caller.

Determination of Bail

Bail is initially set by the arresting officer or by the intake services at the detention facility.  The amount of bail is set according to the bail schedule as published by the courts.  Many times, you can will receive an “own recognizance (O.R.) release,” and will not be required to post any bail.

There are many factors which are taken into consideration when granting an own recognizance release.  The crime, or crimes, with which you are charged carry the most weight when determining if an O.R. is appropriate.  Next, your prior criminal convictions, if any, and whether you have failed to appear at prior court appearances are reviewed.  Consideration will be given to your family, employment, and level of education.  If the crimes you are charged with are violent offenses, it is less likely that you will granted an O.R.  If, however, after taking all these factors into consideration, it is determined that the likelihood that you will appear in court as required is good, an own recognizance release may be granted.

If bail is required, it may be posted with cash or bond, unless the court has specified cash only.  A bondsman will need collateral, and will add on a fifteen percent (15%) fee of the total bond as his fee.  This fifteen percent (15%) fee will not be returned when the bond is exonerated by the court.  If cash bail is posted, by you, or another party, it will be returned to the party whose name and address is listed as posting the bail at the close of the case, or if the court exonerates the bail during the case.

The Criminal Complaint

A criminal complaint is the document filed with the appropriate court by the prosecuting agency which charges you, the defendant, with a specific crime or crimes.  Many people believe that the victim, as a private citizen, can “press charges” or “drop charges” against someone.  This is a common mistake.  Only the prosecuting attorney’s office has the authority to prosecute or drop any criminal charges.  Even though the police will arrest and book a person into jail with a crime or crimes, it is the prosecuting attorney who will review the evidence and determine what charges will be filed for prosecution.

Even though a victim of a crime cannot drop the charges pending against a defendant, they do have the ability to influence the prosecutor’s decisions during the process.  Many times the feelings of the victim toward the defendant, whether good or bad, will impact how a prosecutor tries the case.

2nd Stage

Initial Arraignment

The initial arraignment is the first court appearance on any criminal case.  Depending on the type of crimes charged, and where the crime took place, this hearing will be held at either a county justice court, or a city municipal court.  At this hearing, the Judge will ask the defendant, or his attorney, to enter a plea to the charges that were alleged in the criminal complaint.  Generally, there are three (3) types of pleas, not guilty, guilty, and no lo contendere. Once a plea is entered, the Judge will set the next court appearance.  If the charges are being heard in a county justice court, and are misdemeanors, the next court appearance will be the trial date.  If the charges are gross misdemeanors or felonies, the next court appearance is a preliminary hearing. 

Discovery/Police Reports

Once the initial arraignment is held in a case, the police reports, called discovery, can be obtained from the prosecutor’s office.  The discovery must be reciprocal to meet constitutional rules.  This simply means that the prosecution must provide the defense with any evidence they intend to use during the trial, as well as any evidence that is helpful to the defense.  The prosecutor cannot hide evidence, and then surprise the defense at trial.  These rules apply to the defense counsel as well.  However, the defense is not required to provide damaging evidence to the prosecutor.  That burden rests with the prosecution.  Most often, the discovery in a criminal case will include the police officers’ reports, a statement by the victim(s), any statements made by witnesses, medical records, crime scene photos, victim photos, diagrams of the crime scene, as well as any statements made by the defendant.

Subpoenas

In many cases, after the attorney has reviewed the evidence provided in the discovery, the issuance of subpoenas may become necessary to obtain additional evidence not previously provided by the police or prosecution.  These documents could include security officers’ reports, surveillance videotapes, 911 tapes, and any other evidence that could aid defense counsel in the preparation of defending you against the charges.

Pre-trial Conference

In many misdemeanor cases, more prominently misdemeanors which are prosecuted in city municipal courts, after the initial arraignment, the Judge will set a Pre-trial Conference.  This hearing gives the prosecutor and defense counsel the opportunity to discuss resolving the case without having to go to trial.  Usually an initial offer of settlement is proposed, and another court date is set called a status check.  This status check will review whether or not the offer of settlement was accepted by the defendant, and if so, put that offer on the court record.

Plea Bargains

Plea bargains are a necessary and important part of the criminal justice system.  A plea bargain is an agreement in a criminal case where a prosecutor and a defendant arrange to settle the case against the defendant. The defendant agrees to plead guilty (and often allocute, meaning describe the criminal act to the court) to a lessor offense than charged or to a smaller number of offenses than charged. The vast majority of felony criminal cases in the United States are settled by way of a plea bargain rather than by a jury trial. The prosecutor often agrees to accept a lighter jail sentence or fine. Even though the agreement is reached between the prosecutor and the defendant, plea bargains are subject to the approval of the court.  This means that the Judge is not obligated to accept the plea bargain if he or she feels it is not appropriate in that case.  In most cases, the plea bargain is accepted to avoid the uncertainty of the jury trial, for both the defendants and the prosecutors. Plea Bargains can be reached at any time before trial during a criminal case.  If the charges are misdemeanors, the justice or municipal court will put the negotiations on the record, and handle the sentencing.  If the charges are gross misdemeanors or felonies, the plea is heard in District Court.

Preliminary hearings only occur in cases involving a gross misdemeanor or felony.  The purpose of the preliminary hearing is for the Judge to determine whether or not there is probable cause to bind over the case to the District Court level.  The burden of proof for the prosecutor in this hearing is very low, and is defined as slight or marginal.  However, the preliminary hearing allows the defense a preview of the prosecution’s case, as well as having the prosecution’s witnesses’ sworn testimony on the record for trial.  At the end of the preliminary hearing, the prosecutor may amend charges, dismiss charges, or add charges.  The Judge may also dismiss charges if there has not been enough evidence presented to support them. 

3rd Stage

Initial Arraignment in District Court

If the prosecuting agency met its burden at the preliminary hearing, the case is bound over to District Court.  There is another arraignment hearing in the assigned District Court.  Again, the Judge will ask the defendant to enter a plea to the charges that are now alleged in what is called an Information.  If a plea bargain has been reached, the specifics of that plea bargain will be placed on the record.  The Judge will then ask the defendant questions concerning his knowledge of the plea bargain, and if his answers, and the plea bargain itself, are acceptable to the Judge, a sentencing date will be set.

If there is no plea bargain reached between the parties, the Judge will set two (2) court dates.  The first is what is known as a calendar call.  This hearing is to determine whether both sides are prepared to go forward with a jury trial, or have reached a plea bargain.  A trial date is also set, usually about one (1) week after the calendar call.

Pre-trial Motions

Pre-trial motions can be excellent tools for criminal defense attorneys.  They are not possible in all cases, however when appropriate, these motions can force the dismissal of charges and exclude evidence against the defendant.  The most common motions include:

1. Suppression of Evidence
2. Dismissal of Charges
3. Writ of Habeas Corpus
4. Sever Counts / Defendants

Only after a complete review of the evidence in a case and the transcript from the preliminary hearing or Grand Jury will a defense attorney be able to decide whether any pre-trial motions are appropriate.

Bench and Jury Trials

A trial is an examination of the facts and law in front of a judge, and possibly a jury, with the authority to hear the matter at hand.  A bench trial is a trial in which the Judge hears the evidence and decides the guilt or innocence of the defendant without a jury.  He is the only “trier of fact” in a bench trial.  A bench trial is held on most misdemeanor crimes.  If the defendant is charged with gross misdemeanors or felonies, then, the law requires a trial by jury.  If a jury trial is held, then the jury assumes the role of “trier of fact,” and makes the determination of guilt or innocence of the defendant.  In a case where the death penalty is being sought by the prosecution, the jury will also determine whether or not to impose the death penalty.

Sentencing

If the defendant is found guilty of any or all crimes charged, he will ultimately be sentenced.  Prior to that sentencing hearing, if the charges are gross misdemeanors or felonies, the defendant will be interviewed by the Department of Parole & Probation.  After this interview, a report will be prepared and provided to the court, the prosectutor and the defendant.  This report will contain the recommendations of the Department of Parole & Probation concerning the appropriate sentence.  While the recommendation is not binding on the court, it does influence the court’s decision.

In many cases, the defendant may receive a suspended sentence, and be placed on probation.  During this time of probation, the defendant will be supervised by a probation officer.  There will also be many conditions placed on the defendant during the term of probation, such as allowing any police or probation officer the right to search the defendant or his residence at any time without a warrant or probable cause.

If probation is not granted by the court, the defendant will be sentenced to jail or prison depending upon the criminal convictions.  The defendant may receive a county jail sentence for misdemeanors only.  However, gross misdemeanor and felony convictions require prison sentences.  Both the prosecution and the defense will be allowed to argue any aggrivating or mitigating factors before the judge.  Ultimately, with the exception of death penalty cases, the judge will determine the sentence for the defendant within statutory requirements.

Additional Consequences of Felony Convictions

There are a number of collateral consequences once a defendant is convicted of a felony.  These may include, but are not limited to the following:

1. Register as a felon
2. Register as a sex offender
3. Lifetime supervision as a sex offender
4. Possiblities of increased penalties in future criminal convictions
5. Loss of association with known criminals/felons
6. Loss of the right to possess a firearm
7. Loss of the right to vote in any election
8. Child Custody issues after Domestic Violence Conviction

4th Stage

Appeals

Once the defendant is convicted, there is a right to appeal.  There are strict time requirements for the filing of the notice of appeal.  This notice of appeal is the document which begins the appellate process.  It is the defendant’s responsibility to make sure the notice is filed within the time limit.  While it is possible in rare occassions, the Supreme Court may allow an appeal to proceed which did not adhere to the time limits for the filing of the notice.  But in most cases, the appeal will be dismissed without being reviewed.

Sealing of Records

Sealing of records is the process which allows a person’s conviction, or any charges that were dismissed, to be removed from their police and court records.  There are specific time frames a person must wait before being allowed to seal their records.  The waiting time is determined by the type of crime the person was convicted of.  Specifically, most misdemeanor crimes can be sealed after two (2) years from the date the case was closed.  There are two misdemeanor crimes which are exceptions to this rule, and require a seven (7) year wait, domestic violence, also called domestic battery, and DUI.  Any gross misdemeanor can be sealed after seven (7) years from the completion of the sentence or probation.  As there are different classification of felony crimes, a determination must be made which classification the crime falls into to determine the waiting period to seal a felony.  Generally, it can take ten (10) years, twelve (12) years, or as long as fifteen (15) years from the completion of the sentence or release from probation before a sealing will be allowed.  Most sexually based offenses, and offenses against children are not sealable.

Other Courts

Traffic Court

Whenever you are written a traffic citation, you are being charged with a misdemeanor crime.  Even though most traffic citations will not carry any jail time, you will still receive points on your driver's license, as well as increased insurance rates.

As a private citizen, you can always go to traffic court to contest a ticket.  This may involve standing in long lines to enter a not guilty plea, and then, returning to court for the trial date.  Many times, the prosecutor will plea bargain with you instead of going to trial.  You may be given a reduced fine, traffic school, and possibly amend the charge so that the points for the ticket are lessened or removed entirely.  However, in some instances, there will be no plea bargain, the fine and points remain the same, your insurance rates rise, and you have wasted time from your busy schedule for nothing.

If you value your time, as most of us do these days, you may want to have an attorney handle the traffic citation for you.  For a nominal fee, the attorney will have the court set a new appearance date, appear in court for you and negotiate with the prosecutor for the best resolution of your ticket.  In many instances, most traffic citations can be reduced to an illegal parking ticket with a fine.  While this outcome cannot be guaranteed, the relationship that an attorney has with the prosecutor will most likely benefit your case.

Juvenile Court

There are many differences between how juveniles are tried for criminal offenses compared to adults who are prosecuted for the same crimes.  Sentences for juvenile offenders can include probation, home detention, detention in a juvenile facility, youth camps and boot camps.

When a juvenile offender commits certain crimes, it is likely that the prosecutor may attempt to have the case transferred to the adult court.  If the prosecutor is successful, the juvenile will be tried as an adult, and if convicted, will serve the same sentence an adult would receive for the same crime.

Federal Court

When a person violates Federal law, the case will be prosecuted in the Federal Courts.  Federal cases are much more complex and require more time to prepare and defend against than State cases.

The Federal Sentencing Guidelines are used to assist the Federal Judges in determining the sentences on Federal convictions.  While there are still plea bargains in Federal Court, the crimes are usually more serious in nature, and many times a prison sentence can be expected.

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