Appeals aren't the only way to contest guilty verdicts in Nevada criminal cases. Defendants can also request an entirely new trial where they may bring in new evidence. Although courts rarely grant new trials, a skilled Las Vegas criminal defense attorney can maximize a defendant's chances of getting one.
This article explains what "motions for new trials" are in Nevada law. Keep reading to learn the grounds for getting a new trial and the process of applying for a new trial.
What is a "motion for a new trial" in Nevada
Like it sounds, a motion for a new trial is when a defendant who's found guilty at trial asks the court to hold a new trial. If the judge grants the motion and the defendant gets a new trial, then the verdict of the original trial no longer matters.
Also see our article on how to get a Nevada sentence commuted.
How is a "motion for a new trial" different from an "appeal" in Nevada criminal cases?
An appeal is heard in a higher court than the court which heard the original case. For instance, a defendant found guilty in Clark County District Court appeals to the Nevada Supreme Court. In contrast, new trials are heard in the same courts that heard the original case. So a defendant found guilty in Henderson Justice Court would request a new trial in Henderson Justice Court.
The other main difference between appeals and new trials concerns evidence. In appeals, the defendant isn't allowed to introduce any new evidence . . . appeals are merely a review of the original trial. In contrast, new evidence may be introduced in new trials. Learn more in our article on Nevada appeals law.
Do Nevada courts always grant new trials in
No. In fact, many convicted defendants never even request new trials and only pursue appeals. And those that do file motions for new trials are often found ineligible. As discussed in the next question, judges grant new trials in Nevada criminal cases only on very narrow grounds.
On what grounds can a defendant be granted a new trial in Nevada criminal cases?
There is no set list of grounds that may necessitate a new criminal trial in Nevada. In general, a new trial is meant to correct an injustice that occurred in the first trial. The following are some of the reasons a court may grant a convicted person's motion for a new trial.
- Newly discovered evidence
- Judicial error
- Prosecutorial misconduct in Nevada
- Jury misconduct
- Loss of trial transcripts or records
- Ineffective assistance of counsel
- Erroneous admission of evidence
- Conflicting evidence
- Perjury (Learn about the Nevada crime of perjury.)
- Insufficient evidence
Newly discovered evidence:
Sometimes new evidence emerges following a criminal trial that would have been relevant to the charges. However not all new evidence entitles someone to a new trial. Nevada courts won't consider granting a new trial unless the new evidence meets the following seven criteria:
- the evidence must be newly discovered,
- the evidence must be material to the defense,
- the evidence could not have been discovered and produced for trial even with the exercise of reasonable diligence,
- the evidence must not be cumulative (which means the evidence mustn't be too similar to previous evidence),
- the evidence must indicate that a different result is probable on retrial,
- the evidence must not simply be an attempt to contradict or discredit a former witness, and
- the evidence must be the best evidence the case admits (which means that the evidence must be original and not a copy if possible)
Consequently, Nevada courts have a very high bar for granting new trials based on new evidence. The evidence needs to be highly relevant, favorable to the defendant, and it can't have been reasonably findable during the original trial. Reno criminal defense attorney Michael Becker gives an example:
Rob is convicted of the Nevada crime of burglary in Henderson. Following his conviction his attorney finds surveillance video that shows that Rob never entered the building. If Rob files a motion for a new trial in Henderson Justice Court, the court may deny the request if it finds that Rob should have reasonably been able to get the surveillance video during the first trial.
Note that whether the new evidence warrants a new trial is largely a matter of opinion. An experienced criminal defense attorney would try to "spin" the argument to show that the new evidence qualifies as grounds for a new trial in Nevada.
Sometimes judges make mistakes such as handing down a legally false ruling or misdirecting the jury on a legal matter. Or sometimes a court-appointed interpreter makes an error in translating testimony.
If the court finds that a judicial error substantially impacted the defendant's rights, then it may grant a new trial. But the court won't grant a new trial if it finds that any errors were "harmless" and didn't prejudice the defendant.
A frequent ground for a new trial is when a prosecutor commits misconduct so gross it prejudices the defendant. The most serious prosecutorial misconduct is failing to disclose exculpatory evidence, which means evidence that suggests the defendant isn't guilty. Henderson NV criminal defense attorney Neil Shouse provides an illustration:
During a Nevada murder trial, the prosecutor instructs a state witness not to testify about seeing the defendant leaving the scene of the crime prior to the killing. The defendant is then convicted. If the prosecutor's misconduct is found out and the defendant requests a new trial, the court would almost certainly grant the request. This is because the defendant may have been acquitted had the witness spoken freely. (In addition, the prosecutor may face criminal charges for obstructing justice.)
Other example of prosecutorial misconduct includes referring to inadmissible evidence in front of the jury or failing to gather material evidence out of gross negligence or bad faith.
Jury misconduct is a valid ground for a new criminal trial in Nevada unless it appears beyond a reasonable doubt that the misconduct didn't prejudice the defendant. Examples of jury misconduct that could warrant a new trial in Nevada include:
- a juror intentionally gave false information during voir dire ("voir dire" is the legal term for jury selection)
- the jury conducted improper deliberations (for instance, if a defendant chooses not to testify, it's improper for a jury to discuss that as a strike against the defendant)
- the jury was privy to information not in the record (the "record" is the all the admitted evidence at trial)
- a juror had contact with witnesses
- a juror was intoxicated during trial or deliberations
Note that juror incompetence is usually not a ground for a new trial unless the defendant already raised an objection to the juror's competence prior to the first trial's verdict.
Also note that there are two elements a petitioner must show in order to prevail on a motion for a new trial on the basis of juror misconduct during voir dire: (1) that the juror at issue failed to honestly answer a material question, and (2) that a correct response would have provided a valid basis for a challenge for cause. (McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984).)
Loss of trial transcript or record:
A defendant in a Nevada criminal case may be hindered from bringing an effective appeal if the trial's records and transcripts get lost or destroyed. If the extent of the loss would prejudice the defendant, the court may grant him/her a new trial.
Ineffective assistance of counsel:
The incompetence of the defendant's lawyer may be a ground for a new criminal trial if the court determines that the incompetence prejudiced the defendant and deprived him/her of a fair trial. Consequently, minor mistakes which didn't influence the course or outcome of the case wouldn't qualify.
A defendant in a Nevada criminal case can attempt to get a new trial by claiming that there was too much conflicting evidence to justify the guilty verdict. Courts use a "totality of the evidence" standard to deliberate whether the evidence admitted at trial wasn't consistent enough to sustain a conviction.
Nevada courts may grant a new criminal trial on the grounds that the first trial was marred by perjury (lying under oath) only if the following four elements are true:
- the court is satisfied that trial testimony of material witnesses was false,
- evidence showing that false testimony was introduced at trial is newly discovered,
- evidence showing false testimony could not have been discovered and produced for trial even with the exercise of reasonable diligence, and
- it is probable that had false testimony not been admitted, a different result would have occurred at trial.
Therefore, perjury doesn't necessitate a new trial if the court believes that the perjury didn't prejudice the defendant.
A jury shouldn't find a defendant guilty of a crime unless it believes the prosecution proved the defendant's guilt beyond a reasonable doubt. But juries can make mistakes, be manipulated, or even succumb to corruption . . .
If the judge believes the jury convicted the defendant on insufficient evidence, the judge can acquit the defendant. But the defendant wouldn't then get a new trial . . . instead, the charges would be dismissed. This is because the constitutional protection against "double jeopardy" prevents a defendant from being tried for the same crime he/she was already acquitted of.
But note that it's still rare for courts to set aside guilty verdicts because judges typically defer to the jury's judgment. Judges only take this step when the evidence is so insufficient that it results in a miscarriage of justice or actually prejudices the defendant in respect to a substantial right.
When can a defendant file a "motion for a new trial" in Nevada criminal cases?
It depends on what grounds the defendant is requesting the new trial. A motion for a new trial based on newly discovered evidence may be made within two (2) years after the guilty verdict. Otherwise, the defendant has only seven (7) days after the guilty verdict to file a motion for a new trial. But there is one exception:
People who have been imprisoned for a conviction of a category A felony
in Nevada or a category B felony in Nevada may be able to request a "genetic marker analysis" of the evidence which contributed to their conviction. If the results suggest the defendant may be innocent, the defendant may request a new trial at any time.
What if the time limit has passed to file a "motion for a new trial" in a Nevada criminal case?
If the statute of limitations to file a motion for a new trial has passed, a prisoner may try to contest his/her incarceration by filing a writ of habeas corpus. And as with a new trial, new evidence may be presented in a writ of habeas corpus. Read more in our article on writs of habeas corpus in Nevada.
Can a defendant appeal a court's order to deny a "motion for a new trial"?
Can a defendant get a new trial after filing an appeal in a Nevada criminal case?
Yes, but there are some procedural hurdles. Once an appeal has been filed with a higher court, the lower court that heard the case no longer has authority to grant a new trial. However, the lower court can still hear a motion for a new trial and certify that it's inclined to grant a new trial. If it does, the higher court could then remand the case down to the lower court for a new trial.
Call an attorney for help.
If you've been convicted of a crime in Nevada, you may be able to get an entirely new trial and another shot of an acquittal of the charges. Call our Las Vegas defense lawyers at 702-DEFENSE (702-333-3673) for a free consultation on all your options including new trials, appeals, and writs of habeas corpus.
We represent client throughout Nevada, including Las Vegas, Henderson, Washoe County, Reno, Carson City, Laughlin, Mesquite, Bunkerville, Moapa, Elko, Pahrump, Searchlight and Tonopah.
For information about California laws for filing a motion for a new trial, read our article on California laws for filing a motion for a new trial.
For information about Colorado laws for filing a motion for a new trial, read our article on Colorado laws for filing a motion for a new trial.