LIM & CO, WILLY
Stage 1: Arrest
A felony prosecution commences with an arrest, followed by a complaint being filed in the Justice Court. In some rare cases, the prosecution may instead seek an indictment from the Grand Jury.
Indictments
If an Indictment has been filed against a defendant, the matter will not proceed through the earlier justice court stages. Instead the case will start in the District Court, with an Initial Arraignment.
A Grand Jury is a group of people who meet in a closed hearing, and are presented with evidence from the Prosecutor regarding incidents which are alleged to be criminal in nature. Defense Counsel cannot be present, and cannot question any of the witnesses. However, Defense Counsel can provide the Prosecutor with evidence that might ‘explain away the charges’ and the Prosecutor has a duty to present that evidence to the Grand Jury. After hearing all the evidence, the Grand Jury then makes a determination whether criminal charges should be brought against a defendant. The burden of proof that must be shown by the Prosecution is the same as that in a preliminary hearing.
Cases can begin in justice court with a criminal complaint and be taken to the Grand Jury instead of proceeding through a preliminary hearing.
Stage 2: Arraignment
The defendant is set for arraignment within a few days – though this may be longer if the defendant posts bail and is out of custody. At this first court appearance, the defendant’s appearance can be waived if represented by an attorney. Typically the Defense will waive a reading of the charges filed by the District Attorney’s Office. The Defense should then address the matter of bail, if the defendant is still in custody. A NOT GUILTY plea is entered and a preliminary hearing date is set.
Discovery/Police Reports
Once the initial arraignment occurs, discovery becomes available from the Prosecutor. The discovery in a criminal case often is any police officer reports, statements 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.
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. The Prosecutor cannot hide evidence, and then surprise the defense at trial. These rules apply to the Defense Counsel as well.
Stage 3: Preliminary Hearing
Preliminary hearings only occur in cases involving gross misdemeanors or felonies. 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 very low, in that the Prosecutor must only show by slight or marginal evidence that the defendant may have committed the crimes he/she is charged with. 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 some or all charges if there has not been enough evidence presented to support them.
Stage 4: Second Arraignment
A second arraignment is then held in District Court. At the District Court level, the criminal complaint is now called an Information, if the case went through justice court, or called an Indictment if the case went before a Grand Jury. If a plea bargain has been reached, the details of the deal will be placed on the record. The Judge will then ask the defendant questions concerning his/her knowledge of the plea bargain, and if his/her 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, and the defendant is pleading not guilty, the Judge will set two court dates (Calendar call & Trial). A defendant has a right to a “speedy trial” (right to have the trial start within 60 days from this arraignment).
Stage 5 : Calendar Call
At the calendar call, discussions with the prosecutor regarding a possible plea bargain usually intensify, as both parties by then have a better idea of the strengths and weaknesses of the case. Not only in Nevada, but nationwide, approximately 95% of criminal cases filed in court are settled by some type of plea bargain. If no agreement can be reached trial is next.
Stage 6: Trial
If all negotiations have failed and the case proceeds to trial, wisely assuming a bench trial (The Judge Is The Jury) has not been requested, a jury of 12 persons is selected. After the jury has been selected by the Prosecutor and Defense Counsel, the jury is sworn in and opening statements begin immediately followed by the States presentation of its version of events. Afterwards, Defense uses all the time necessary to present its case. The judge may then instruct the jury on the applicable law. The Prosecutor gives a closing argument, followed by the Defense Counsel. Because the State of Nevada has the burden of proving guilt “Beyond a Reasonable Doubt”, the Prosecutor is allowed to respond to Defense Counsel’s closing statement. The judge will provide the jury instructions which the jury must follow during deliberations. The jury’s verdict must be unanimous (All 12 Agree) or a mistrial will be declared.
Stage 7: Sentencing
If the defendant is found guilty of any or all crimes charged, he/she will ultimately be sentenced. Prior to that sentencing hearing, 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 Prosecutor and the defendant. This report will contain a summary of the facts of the case, and any prior criminal history of the defendant. It will also contain a recommendations from 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 person or 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 type of criminal conviction.
Appeals
Once the defendant is convicted, there is a right to appeal. There are strict time limits 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 occasions that the Supreme Court will allow an appeal to proceed which did not adhere to the time limits for the filing of the notice, in most cases, the appeal will be dismissed without being reviewed.
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