Nevada defines murder as an unlawful killing of a human being done with malice. First-degree murder comprises:
- premeditated killings, and
- felony murder, which are killings done while the suspect is committing a serious felony such as robbery
Second-degree murder comprises unintentional killings where the suspect acted so recklessly that death was a foreseeable consequence.
In first-degree murder cases, courts may impose the death penalty when the aggravating circumstances outweigh all the mitigating circumstances.
A Murder conviction may be avoided where the defense attorney can show that either:
- the defendant acted in self-defense,
- the killing was an accident,
- the defendant was insane,
- the defendant’s confession was coerced,
- the police performed an illegal search, and/or
- the defendant was misidentified as the killer.
In this article, our Las Vegas criminal defense attorneys discuss:
- 1. What are 1st and 2nd-degree murder?
- 2. Can I plea bargain down to manslaughter?
- 3. Does murder carry the death penalty in Nevada?
- 4. What are the penalties for murder in Nevada?
- 5. How do I fight the charges?
- 6. How is murder different in federal vs state court?
- 7. Can the case get sealed?
- 8. Will I get deported?
- 9. Nevada homicide offenses
1. What is the legal definition of murder in Nevada?
Murder is the unlawful and malicious killing of another human being. Depending on the circumstances of the case, suspects may be prosecuted for either first-degree or second-degree murder:1
1.1. First-degree murder
First-degree murder comprises any premeditated act of killing. Examples include purposely shooting, stabbing, strangling, poisoning, torturing, or beating someone to death.2
First-degree murder is the most serious crime in Nevada law. The maximum penalty is life in prison or, in some cases, the death penalty.3
1.1.1. Felony murder
First-degree murder also comprises “felony murder.” This is when a person kills another while committing any of the following serious felonies:
- child abuse,
- elder abuse, or
- sexual abuse of a child (such as lewdness with a minor)
A person is liable for felony murder even if he/she had no intention of killing anyone while committing the underlying felony.”4Henderson criminal defense attorney Michael Becker gives an example:
Example: James intends to rob his ex-wife Jane of the money she got in their divorce trial. So one night he shows up at Jane’s house and instructs her to empty her safe while he holds her up at gunpoint. James’ hand is shaking from nerves and accidentally squeezes the trigger, killing Jane. Even though James had no intention to kill Jane, James will face a first degree murder charge because Jane’s death occurred while James was committing robbery.
1.1.2. Aiding & Abetting
Accomplices who help others carry out a murder face murder charges themselves even if they did not physically cause the death. Examples of aiding and abetting are:
- “keeping a lookout” while another person is committing the murder
- pretending to be an alibi to the person who committed the murder
- giving information to a person to help him/her commit the murder
In short, accomplices to a killing are treated the same as the “principal” who actually killed the victim.5
Note that aiding and abetting a murder is an entirely different concept from conspiracy to commit murder. The Nevada crime of conspiracy is when two or more people agree to break the law. So if two people conspire together to commit a murder but get caught before they can carry it out, they will still face conspiracy charges.6
1.2. Second-degree murder
Second-degree murder comprises unintentional homicides where the defendant behaved so recklessly that death was a foreseeable result. The classic example is playing Russian roulette: Even if the defendant had no desire to hurt anyone, any reasonable person would know that firing a partly loaded gun at someone carries a high risk of causing death.
Other examples of second-degree murder may include:
- throwing an object off a roof when there is a crowd below, causing the object to strike and kill one of the people on the street
- firing a gun into a building that the defendant wrongly believes is vacant, and an occupant dies
- setting off fireworks knowing there is a person within an unsafe distance, and the person dies from the explosion
Second-degree murder is the second most serious crime in Nevada law after first-degree murder. The maximum penalty is life in prison.7
1.2.1. Death by drugs
Unintentionally causing someone’s death by providing him/her drugs is always prosecuted as second-degree murder. An example is bringing brownies laced with ecstasy to a potluck, and one of the guests has a bad reaction to the drug and dies. Learn more about death by drugs in Nevada (NRS 453.333).8
1.3. Attempt murder
Like it sounds, the crime of attempted murder is deliberately trying to kill someone but not succeeding. An example is shooting at someone, but the bullet misses or does not fatally wound the victim.9
Note that if the victim dies from his/her injuries while the defendant is being prosecuted for attempt murder, the prosecutor can switch the charge to murder.10
2. Can a Nevada murder charge be reduced to manslaughter?
Possibly. Murder trials take a lot of time and effort, and prosecutors may be willing to reduce a murder charge to manslaughter as a way to avoid litigation.
Like murder, manslaughter is a type of homicide. But unlike murder, manslaughter is killing without malice and premeditation. There are two kinds of manslaughter in Nevada:
- Voluntary manslaughter is killing in the heat of passion. The typical example is a spouse unexpectedly finding his/her spouse in bed with another person and immediately killing the affair partner out of rage. The maximum prison term is ten years.11
- Involuntary manslaughter is an unintentional killing done while either breaking the law (such as hunting without a license) or by being negligent (such as leaving out a loaded gun). The maximum prison term is four years.12
In addition to carrying lesser penalties than murder, manslaughter also carries less of a social stigma. People with manslaughter convictions may have an easier time moving on with their lives and jobs than people with a murder conviction on their record.
3. Does murder carry the death penalty in Nevada?
Nevada judges may impose the death penalty for a first-degree murder conviction only if:
- the court finds there is at least one aggravating circumstance (such as that the defendant tortured the victim before killing him/her), and
- the aggravating circumstances outweigh all the mitigating circumstances (such as that the defendant was abused as a child)
In short, only first-degree murder qualifies as “capital murder.” And the court is required to impose the death penalty only if it finds the defendant more deserving of punishment than mercy.13
Note that defendants who were under eighteen (18) at the time of the killing or who are intellectually disabled may not be sentenced to death.14
Also that sexually-motivated murder also carries lifetime supervision under NRS 176.0931. But it may be possible to get off lifetime supervision after 10 years.
There are various legal recourses defendants can use to try to reverse a death penalty sentence. These include appeals and writs of habeas corpus, which may take several years to work through the court system.
The death penalty is carried out in Nevada by lethal injection at Ely State Prison.15
4. What are the penalties for murder in Nevada?
The possible punishments depend on whether the defendant was convicted of first or second-degree murder. Because second-degree murder comprises unintentional killings, the penalties are less severe:16
|Nevada Murder charge||Penalties (Category A Felony)|
When determining the harshness of the final sentence, the judge or jury takes into account all of the aggravating and mitigating circumstances.
Aggravating circumstances are factors that make the murder more shameful. Examples include:
- the defendant tortured the victim prior to killing him/her
- the victim was under 14-years old
- the defendant killed at random without a motive17
Mitigating factors make the defendant more deserving of a lighter punishment. Examples include:
- the defendant grew up in an abusive home
- the defendant has contributed to the community
- the defendant is a good parent18
Note that defendants who were under 18 at the time of the murder may be eligible for parole after serving 20 years in prison.19
Also see our article about Nevada asset forfeiture laws.
4.1. Penalty enhancements
Nevada courts may increase murder sentences by one to twenty (1 -- 20) years if:
- the defendant used a deadly weapon such as a gun to commit the murder,20 or
- the victim in the case was aged sixty (60) or older21
4.2. Attempt murder penalties
|Nevada Attempt Murder charge||Penalties|
|without poison22||category B felony:|
|with poison23||category A felony:|
The prison sentence may be increased by one to twenty (1 -- 20) years if the defendant used a deadly weapon, or if the victim was aged sixty (60) or older.24
4.3. Conspiracy to commit murder
Conspiracy to commit murder is a category B felony carrying:
- two to ten (2 -- 10) years in prison, and
- up to $5,000 in fines (at the judge’s discretion)25
5. How do I fight the charges?
How best to defend against a murder charge depends on the facts of the case and the available evidence. A defense attorney may seek to establish that:
- The defendant acted in self-defense (or the defense of others)
- The incident was an accident
- The defendant was insane
- The police coerced a confession
- The police conducted an illegal search
- The defendant was wrongly identified as the killer
Note that it is not a defense to murder if the defendant had no clear motive.26
5.1. Self-defense / defense of others
People in Nevada are allowed to kill another person in self-defense or defense of others. But in order to qualify as legal self-defense, the following two conditions must be met:
- it is reasonable to believe that the perpetrator is about to inflict death or substantial bodily harm, and
- the defendant fights back with no more force than necessary to deflect the threat27
In short, a person’s decision to defend him/herself or others using deadly force must be reasonable in order for it to serve as a defense to murder charges:
Example: Bart and Brad get into an argument in a crowded bar. Bart yells at him, “If you don’t pay me back my money, I will kill you.” Scared for his life, Brad takes out his gun and shoots Bart. Although Brad may have genuinely been scared for his life, Bart’s “fighting words” were insufficient to place a reasonable person in fear of immediate bodily harm: Bart did not show a weapon or lift a finger, and chances are Bart would not have tried anything in a crowd anyway.
The legal term for Brad’s argument in the above example is “imperfect self-defense.” Although imperfect self-defense can never get a murder charge reduced, it may persuade a prosecutor to lower a murder charge to manslaughter.
Note that Nevada law allows people to “stand their ground” and fight back as long as they are not the initial aggressor. And the “castle doctrine” permits people in their homes or cars to use deadly force against intruders. Learn more about justifiable homicide (NRS 200.120).28
An accidental killing occurs when the following three conditions are true:
- the defendant had no criminal intent to do harm,
- the defendant was not acting in a negligent way at the time of the killing, and
- the defendant was not acting unlawfully at the time of the killing29
In short, an accident serves as a defense to murder when the defendant is legally blameless:
Example: Donna and Dave are standing at the top of a staircase when suddenly Donna trips on the carpet, causing Dave to fall down the stairs and die. Here, Donna should not face murder charges because the incident was a tragic accident: She had no intent to hurt Dave, she was not breaking the law, and she was not acting negligently.
Note that had Donna in the above example been acting unlawfully — such as by slapping Dave during an argument — Donna may still be able to escape murder charges because she had no intent to kill Dave. Instead, the prosecutor would probably charge her with involuntary manslaughter.
Nevada courts rely on the “M’Naughten test” to determine whether a defendant is insane. This means that the court may adjudge someone “not guilty by reason of insanity” if the defense attorney can prove that either:
- the defendant did not understand the nature of his/her act, or
- the defendant could not distinguish between right and wrong30
Predictably, defense attorneys often call expert medical witnesses to testify as to the defendant’s mental state.
Example: Lily kills her husband after claiming to hear demon voices demanding her to do so. At trial, the defense attorney calls a world-renowned psychiatrist to testify that Lily suffers from a psychosis where she genuinely believes she hears demon voices. If the jury buys the argument that Lily was not motivated by malice when killing her husband, the jury should acquit her.
Many defendants who are acquitted of murder due to insanity are committed to mental institutions.
5.4. False or coerced confessions
Sometimes murder suspects give a fake confession because the police coerced them with such illegal tactics as:
- threatening the suspect’s family,
- threatening the suspect with the death penalty, or
- offering laxer treatment in exchange for the suspect confessing31
If the defense attorney can show that the police forced the defendant to make an involuntary confession, the judge may exclude the confession as evidence:
Example: Detective Johnson is interrogating Ray, whom he suspects of killing his girlfriend. The detective threatens to have his children put into foster care instead of with their grandparents if Ray does not confess. Scared for his kids’ wellbeing, Ray confesses. But the judge later excludes this confession from evidence because Detective Johnson coerced him by threatening to break up his family.
If the defense attorney succeeds in getting the fake confession thrown out, the prosecutor may be willing to reduce or possibly dismiss the charges.
5.5. Illegal search
The Fourth Amendment limits the extent to which police may conduct searches and seizures. If the police failed to follow proper procedures, the court may be able to exclude any evidence found from the unlawful search:32
Example: Noah is found dead. The police then raid his wife Kay’s office, without obtaining a Nevada search warrant. They discover her diary containing fantasies about killing Noah. The police then arrest Kay for Noah’s death. At court, Kay’s lawyer files a motion to suppress evidence arguing that the police’s search was unlawful because they did not get a warrant. If the judge agrees, the court may exclude the diary as evidence. This could greatly weaken the state’s case and could cause them to dismiss or lower the charges.
Note that had Kay in the above example consented to the search of her office, then the search would be legal. Consenting to a police search always makes it legal, even if the police do not have legal grounds to search.
5.6. Mistaken Identity
One of the leading causes of wrongful convictions is that the defendant was mistakenly identified as the killer. There are several reasons that eyewitnesses may incorrectly identify a suspect, including:
- Being fixated on the weapon instead of the killer
- The heightened stress of the situation
- The passage of time between the incident and the identification
- Improper suggestion by law enforcement33
Some ways that a defense attorney can try to demonstrate an eyewitness’ unreliability include:
- demanding a live lineup to observe whether the eyewitness can identify the defendant again
- challenging how the police conducted the earlier lineup in order to try to get the identification excluded as evidence
- relying on an “eyewitness identification expert” to cast doubt on the eyewitnesses’ memory
If the defense attorney can demonstrate the state’s witnesses are unreliable, then the state may be left with insufficient evidence to sustain a conviction.
No matter the defense, the defense attorney’s job is to show that the state’s evidence is too erroneous, illogical, baseless, or inadmissible for criminal charges to stand.
6. How is murder different in federal vs state court?
The definition of murder under federal law is very similar to Nevada’s.34 Some situations which elevate murder to a federal crime include:
- killing of a congressman or a judge35
- killing in order to influence a court case, such as killing a witness36
- killing during a bank robbery37
- killing while on a ship38
- killing through the mail, such as package bombers39
Typically, murder suspects face charges in either state or federal court. There are situations where a person can be charged with the same homicide in both state court and federal court, but this is rare.40
|Federal murder conviction||Penalties|
7. Can the case be sealed?
Eventually, unless the victim was a child:
|Nevada conviction||Waiting period to get a record seal|
|Murder of a child under 18||Never|
|Murder of an adult42||10 years after the case ends|
|Manslaughter43||10 years after the case ends|
|Dismissal of the charge (no conviction)44||No waiting period|
8. Will I get deported for murder?
Yes. Murder is an “aggravated felony” as well as a “crime of moral turpitude“, both of which are deportable. Aliens who are convicted of murder face removal from the U.S. following completion of their criminal sentence.45
Non-citizens who have been accused of homicide are advised to retain experienced legal counsel right away. A skilled attorney may be able to get the charge dismissed or reduced to a non-deportable offense so the defendant can stay in the U.S. Read about the criminal defense of aliens in Nevada.
9. Other homicide offenses:
|Nevada Crime||Definition & Penalties|
|Vehicular Manslaughter46||A driver who negligently causes another’s death.|
As a misdemeanor, the punishment carries:
|Vehicular Homicide47||An impaired driver with 3 prior DUI convictions who causes another’s death while behind the wheel.|
As a category A felony, the punishment includes 25 years to life in prison (with the possibility of parole after 10 years)
|Feticide48||Terminating an unborn baby is manslaughter unless a licensed physician is performing a lawful abortion.|
As a category B penalty, the punishment includes:
Arrested in California? Go to our article on California murder law (PC 187).
- NRS 200.010 “Murder” defined.
- NRS 200.030 Degrees of murder; penalties
- NRS 200.030.
- Id.; McConnell v. State, 120 Nev. 1043, 102 P.3d 606 (2004) (“[I]t impermissible under the United States and Nevada Constitutions to base an aggravating circumstance in a capital prosecution on the felony upon which a felony murder is predicated.”).
- NRS 195.020.
- NRS 199.480.
- NRS 200.030.
- NRS 453.333.
- NRS 200.030.
- See also NRS 200.390.
- NRS 200.050.
- NRS 200.070.
- NRS 200.030;
- Roper v. Simmons, 543 U.S. 551 (2005); Atkins v. Virginia, 536 U.S. 304 (2002).
- Sean Whaley, “Nevada’s new $860,000 execution chamber is finished but gathering dust,” Las Vegas Review-Journal (November 27, 2016).
- NRS 200.030.
- NRS 200.035 NRS 213.12135.
- NRS 193.165.
- NRS 193.167.
- NRS 200.030.
- NRS 200.390.
- NRS 193.165; NRS 193.167.
- NRS 199.480.
- See State v. Boudreau, 67 Nev. 36, 214 P.2d 135 (1950)(“Motive is not an essential element of murder and need not be proved to sustain a conviction, if the other evidence is sufficient.”).
- Pineda v. State, 120 Nev. 204, 88 P.3d 827 (2004)(“[A] reasonably perceived apparent danger as well as actual danger entitles a defendant to an instruction on self-defense”).
- NRS 200.120; Culverson v. State, 106 Nev. 484, 797 P.2d 238 (1990).
- See NRS 200.010; NRS 200.020.
- Finger v. State, 117 Nev. 548, 27 P.3d 66 (2001)(“In order to be considered legally insane under M’Naghten, a defendant must labor under a delusion so great that he is incapable of appreciating his surroundings. This delusion must do one of two things: (1) rob the defendant of the ability to understand what he is doing; or (2) deprive the defendant of the ability to appreciate that his action is wrong, that is, not authorized by law.”); Hudson v. State, 108 Nev. 716, 837 P.2d 1361 (1992)(“A mere history of mental illness is not enough to establish insanity.“).
- Watts v. Indiana, 338 U.S. 49, 54 (1949)(“involuntary confession in murder case] (“To turn the detention of an accused into a process of wrenching from him evidence which could not be extorted in open court, with all its safeguards, is so grave an abuse of the power of arrest as to offend the procedural standards of due process. This is so because it violates the underlying principle in our enforcement of the criminal law. Ours is the accusatorial, as opposed to the inquisitorial, system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the Continent whereby an accused was interrogated in secret for hours on end.. Under our system, society carries the burden of proving its charge against the accused not out of his own mouth. It must establish its case not by interrogation of the accused, even under judicial safeguards, but by evidence independently secured through skillful investigation.”).
- Black’s Law Dictionary (9th ed. 2009), fruit-of-the-poisonous-tree doctrine. (“The rule that evidence derived from an illegal search, arrest, or interrogation is inadmissible because the evidence (the “fruit”) was tainted by the illegality (the “poisonous tree”) [of the initial search or seizure]. Under this doctrine, for example, a murder weapon is inadmissible if the map showing its location and used to find it was seized during an illegal search.”).
- See United States v. Wade, 388 U.S. 218 (1967) (“Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that, for Wade, the post-indictment lineup was a critical stage of the prosecution at which he was ‘as much entitled to such aid [of counsel] . . . as at the trial itself.'”).
- 18 U.S.C. § 1111.
- 18 U.S.C. § 351, 1751; 18 U.S.C. § 1114.
- 18 U.S.C. § 1512.
- 18 U.S.C. § 1111.
- 18 U.S.C. § 2280.
- 18 U.S.C. § 1716.
- See Adam J. Adler, “Dual Sovereignty, Due Process, and Duplicative Punishment: A New Solution to an Old Problem,” Yale Law Journal (November 2014).
- 18 U.S.C. § 1111.
- NRS 179.245.
- NRS 179.255.
- 8 USC § 1101(a)(43); 8 U.S. Code § 1227.
- NRS 484B.657.
- NRS 484C.130.
- NRS 200.210.