Can I get a person in jail to testify for me in a Nevada criminal trial?

Posted by Neil Shouse | Mar 04, 2019 | 0 Comments

Yes, if the case is in a district court, and the judge deems it "necessary."

Under NRS 174.325, an inmate incarcerated in Nevada State Prison or a county or city jail in Nevada can be called to testify at a criminal trial if all of the following three conditions are true:

  1. The criminal trial is in a district court, such as the Eighth Judicial District Court in Las Vegas, or the Second Judicial District Court in Reno.
  2. The defendant or prosecution makes a motion with the court to produce the inmate as a witness, and this motion includes an affidavit explaining what the inmate is expected to say, and why it is material; and
  3. The judge in the criminal case decides that the inmate's testimony is "necessary"

If all these three conditions are met, then the judge would issue an order similar to a subpoena. Then the applicable sheriff would be required to bring the inmate before the court at the designated time. The state government usually shoulders the expenses of producing a prisoner to testify at trial. But the judge can decide to shift the costs to the defendant. Depending on the situation, these expenses could include:

  • the cost of flying or driving the inmate from jail to the court;
  • any medical expenses the inmate incurs while outside of jail;
  • the costs of extra security to monitor the inmate while he/she is out of jail

Note that everyone charged with a crime in Nevada is entitled to a jury trial in Nevada. But only cases involving felonies or gross misdemeanors get "bound over" to district court. Cases that involve only a misdemeanor charge remain in justice court or municipal court. And under NRS 174.325, inmates cannot be called as witnesses in criminal trials in justice court or municipal court.

Also note that inmates who are called to testify are advised to consult with an attorney beforehand. The inmate and attorney should discuss the inmate's options, including whether to testify or to claim Fifth Amendment privileges. If the inmate's testimony is potentially self-incriminating, perhaps the inmate's attorney can strike a deal with prosecutors that grant the inmate immunity.

Finally, note that inmates may make for very valuable witnesses during Nevada criminal cases. If they have already been sentenced, inmates may feel like they have "nothing to lose" by telling the whole truth, even if the truth is not flattering to the inmate.

Legal References:

NRS 174.325. Production of prisoner as witness.
1. When it is necessary to have a person imprisoned in the state prison brought before any district court, or a person imprisoned in the county jail brought before a district court sitting in another county, an order for that purpose may be made by the district court or district judge, at chambers, and executed by the sheriff of the county when it is made. The order can only be made upon motion of a party upon affidavit showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality.
2. When a person required as a witness before a district court is imprisoned, the judge thereof may order the sheriff to bring the prisoner before the court at the expense of the State or, in the judge's discretion, at the expense of the defendant.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.


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