Updated July 10, 2020
Like it sounds, pretrial is the period in a Nevada criminal case prior to trial. Pretrial is when the defense and prosecution may (1) trade discovery, (2) file pretrial motions, and (3) negotiate a possible resolution that dispels with the need for a trial at all.
In this article, our Las Vegas criminal defense attorneys answer frequently-asked-questions about the pretrial process in Nevada, including discovery, motions and plea bargains. Click on a topic to jump to that section:
- 1. What is a pretrial in Nevada?
- 2. What is discovery in Nevada?
- 3. What are pretrial motions in Nevada?
- 4. What are plea bargains in Nevada?
1. What is a pretrial in Nevada?
In general, the pretrial refers to the time period in a criminal case following an arraignment (when the defendant pleads “not guilty”) and before the trial (or entry of a plea, if the case resolves).
It is during the pretrial period that the state hands over its evidence (“discovery”) to the defense. Both sides may file pretrial motions asking the judge to admit or keep out (“suppress”) certain evidence and subpoena witnesses in Nevada. Meanwhile, both sides are negotiating with each other to hammer out a plea bargain in an attempt to avoid going to trial.
The pretrial phase may last anywhere from a few weeks to several years depending on the complexity of the matter.
1.1. Las Vegas Municipal Court
In Las Vegas Municipal Court, the word “pretrial” refers to specific court dates where the defense and prosecution update the judge on the status of the case. Defendants typically get three (3) pretrials before the judge insists the case go to trial.
2. What is discovery in Nevada?
Discovery is the process by which defense counsel and the prosecution exchange evidence in a Nevada case. Discovery is conducted in accordance with strict procedural rules which require that both sides provide each other with all the evidence relevant to the case. Typical discovery in Las Vegas includes:
- Police and investigation reports,
- Physical evidence, such as breath or blood test results in a DUI case,
- All relevant written or recorded statements,
- Witness information, including their names and past statements they may introduce (the prosecution also has to inform the defense if their witnesses have any felony convictions, which the defense may use to impeach their credibility on the witness stand), and/or
- Exculpatory evidence, which is all the evidence the prosecution has which is favorable to the defendant.
Sometimes the prosecution and/or defense refuse to give over certain evidence or disagree whether certain evidence is “relevant” enough to be used at trial. In these cases, they may ask the judge to intervene via a “pretrial motion” and determine whether the evidence may be produced.
3. What are pretrial motions in Nevada?
A pretrial motion is a request by an attorney for the judge to make a decision on a specific procedural or evidentiary matter before the case proceeds to trial. Depending on the circumstances, attorneys may make motions orally in open court or submit them in writing.
Two typical pretrial motions in Nevada criminal law include (i) a motion to dismiss, and (ii) a motion to suppress:
3.1. Motion to dismiss in Nevada
A motion to dismiss is when a defense attorney asks the court to throw out some or all of the defendant’s charges. Just some reasons for filing a motion to dismiss may include:
- The statute of limitations to bring the criminal charge had expired,
- The D.A. engaged in egregious prosecutorial misconduct, and/or
- The case violates the defendant’s right against double jeopardy.
If a judge grants a motion to dismiss, the charge(s) at issue will be dropped.
3.2. Motion to suppress evidence in Nevada
A motion to suppress evidence is a request for the court to exclude certain evidence from ever being introduced at a Nevada trial. There are various reasons an attorney can give to try to justify a motion to suppress such as:
- The evidence is not relevant, or that the evidence’s relevancy is outweighed by the prejudicial effect it would have on the defendant,
- The evidence would endanger the safety of the defendant or witness, and/or
- The evidence was obtained as a result of an illegal search or seizure such as with an invalid search warrant.
If a judge grants a defendant’s motion to suppress certain evidence, then the prosecution will not be allowed to introduce that evidence at trial. This could hinder the prosecution’s ability to prove guilt beyond a reasonable doubt and may sway them to offer a plea bargain to the defense. Often the state will dismiss the case altogether if its key evidence gets suppressed.
3.3. Motion to sever charges or co-defendants in Nevada
If an alleged criminal act involves multiple charges and/or co-defendants, prosecutors frequently “join” them altogether in one case. While this may be convenient for prosecutors, it may be prejudicial to defendants.
Defendants can file a “motion to sever” asking the court to separate out their criminal charges into separate cases or to try their case separately from their co-defendants. Learn more about joinder in Nevada criminal law.
4. What are plea bargains in Nevada?
Plea bargains are the criminal law equivalent of “settling out of court.” Similar to civil cases such as personal injury matters, most Nevada criminal cases resolve through negotiation in the pretrial stage so that the parties never go to trial.
Plea-bargaining in Nevada often begins very early in a case’s pretrial stage. Plea-bargaining may last a few days or many months depending on the seriousness of the charges, the evidence, and any new developments. Last-minute negotiations often take place right outside the courtroom.
When both sides agree on a plea bargain, the defendant usually will plead guilty or “no contest” to a lesser charge with a reduced sentence. This way the defendant avoids the time and expense of trial and the risk of getting a guilty verdict on the original charges.
In some plea bargains, the defendant’s case will even get dismissed completely after he/she completes the sentence. This means there is no conviction, and the defendant can pursue a record seal right away.
4.1. Examples of common plea bargains in Las Vegas
Defendants charged with a first-time offense of shoplifting or prostitution in Nevada might instead be able to plead to breach of peace or trespass. These offenses carry less of a social stigma and do not look as bad when potential employers run background checks on them.
In some cases, Nevada prosecutors will agree to negotiate a DUI down to reckless driving. Penalties are usually the same. However, defendants may petition to get a reckless driving conviction sealed from their criminal record after only one (1) year, whereas DUIs carry a seven (7) year waiting period.
Call a Nevada criminal defense attorney…
If you have been accused of an offense in Nevada, our Las Vegas criminal defense lawyers will consult with you for free about whether they may be able to use the pretrial process to get your charges reduced or even dismissed. But if necessary, we are prepared to litigate your matter all the way to trial.
For information about the California pretrial process, go to our information page on the California pretrial process.
For information about the Colorado pretrial process, go to our information page on the Colorado pretrial process.