“Motion for a New Trial” After a Nevada Criminal Conviction

If you are convicted at trial in Nevada, you can ask the trial judge in your case for an entirely new trial. If the judge grants your motion for a new trial, your guilty verdict would be vacated, and you get a do-over as if the first trial never happened.

In our experience, judges very rarely grant new trials. They do not like to admit that the trials they presided over were flawed.

In this article, our Las Vegas criminal defense attorneys  will address the following key issues regarding motions for a new trial in Nevada:

• 1. Appeals
• 2. Grounds
• 3. Filing Deadline
• 4. Denied Motions
• Frequently Asked Questions
• Additional Reading

1. Appeals

Asking for a new trial is different than appealing. An appeal is asking a higher court to review the decision of a lower court. In contrast, asking for new trial is asking the same court to hold an entirely new trial.

For example, if you are found guilty in Clark County District Court, you would appeal to the Nevada Supreme Court. The Nevada Supreme Court would then decide whether to affirm or overturn the lower court’s ruling.

In contrast, if you want to move for a new trial, you would file the motion with the Clark County District Court – the same court that heard your original case.¹

Another difference is that with appeals, you are not allowed to introduce any new evidence because appellate courts merely review the original trial. In contrast, motions for a new trial may – and often do – include new evidence.²

2. Grounds

In Nevada, a new criminal trial is meant to correct an injustice that occurred in the first trial. The following are nine common reasons why a court may grant you a redo following a conviction.

1) 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 you to a new trial.

Nevada courts will not consider granting a new trial unless the new evidence meets the following seven criteria:

1. The evidence must be newly discovered;
2. The evidence must be material to the defense;
3. The evidence could not have been discovered and produced for trial even with the exercise of reasonable diligence;
4. The evidence must not be cumulative (which means the evidence must not be too similar to previous evidence);
5. The evidence must indicate that a different result is probable on retrial;
6. The evidence must not simply be an attempt to contradict or discredit a former witness; and
7. The evidence must be the best evidence the case admits (which means that the evidence must be original and not a copy if possible).³

Example: Rob is convicted of burglary in Henderson Justice Court. 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.

Consequently, Nevada courts have a very high bar for granting new trials based on new evidence. The evidence needs to be highly relevant and favorable to you, and it cannot have been reasonably findable during the original trial.

2) Judicial Error

Sometimes, judges make mistakes such as handing down an unlawful ruling or misdirecting the jury. On occasion, a court-appointed interpreter makes an error in translating testimony.

If the court finds that a judicial error substantially impacted your rights, then it may grant a new trial. However, the court will not grant a new trial if it finds that any errors were harmless and did not prejudice you.⁴

3) Prosecutorial Misconduct

A frequent ground for a new trial is when a prosecutor commits misconduct so gross it prejudices you. The most serious type of prosecutorial misconduct is failing to disclose exculpatory evidence, which is evidence that suggests you are not guilty.⁵

Example: 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 examples of prosecutorial misconduct include referring to inadmissible evidence in front of the jury or failing to gather material evidence out of gross negligence or bad faith.

4) Jury Misconduct

Jury misconduct is a valid ground for a new criminal trial in Nevada unless it appears beyond a reasonable doubt that the misconduct did not prejudice you.⁶ Examples of jury misconduct that could warrant a new trial include:

• A juror intentionally gave false information during voir dire (“voir dire” is the formal term for jury selection);
• The jury conducted improper deliberations (for instance, if you choose not to testify, it is improper for a jury to discuss that as a strike against you);
• The jury was privy to information not in the record (the “record” is all the admitted evidence at trial);
• A juror had contact with witnesses; or
• 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.⁷

5) Loss of Trial Transcript or Record

In a Nevada criminal case, you 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 you, the court may grant you a new trial.⁸

6) Ineffective Assistance of Counsel

The incompetence of your lawyer may be grounds for a new criminal trial if the court determines that the incompetence prejudiced you and deprived you of a fair trial. Consequently, minor mistakes that did not influence the course or outcome of the case would not qualify.⁹

7) Conflicting Evidence

You 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 was not consistent enough to sustain a conviction.¹⁰

8) Perjury

Nevada courts may grant a new criminal trial because the first trial was marred by perjury (lying under oath) only if the following four elements are true:

1. The court is satisfied that trial testimony of material witnesses was false;
2. Evidence showing that false testimony was introduced at trial is newly discovered;
3. Evidence showing false testimony could not have been discovered and produced for trial even with the exercise of reasonable diligence; and
4. It is probable that had false testimony not been admitted, a different result would have occurred at trial.

Therefore, perjury necessitates a new trial only if the court believes that the perjury prejudiced you.¹¹

9) Insufficient Evidence

A jury should not find you guilty of a crime unless it believes the prosecution proved your guilt beyond a reasonable doubt. However, juries can make mistakes, be manipulated, or even succumb to corruption.

If the judge believes the jury convicted you based on insufficient evidence, the judge can acquit you. Though you would not then get a new trial; instead, the charges would be dismissed. This is because the constitutional protection against double jeopardy prevents you from being tried for the same crime you were already acquitted of.

It is 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 you with respect to a substantial right.¹²

3. Filing Deadline

In Nevada, a motion for a new trial based on newly discovered evidence may be made within two years after your guilty verdict. Otherwise, you have only a seven-day time period after the guilty verdict to file a motion for a new trial.¹³ Though there is one exception.

If you have been imprisoned for a category A felony or a category B felony conviction, you may be able to request a genetic marker analysis of the evidence that contributed to your conviction. If the results suggest you may be innocent, you can request a new trial at any time.¹⁴

If the statute of limitations to file a motion for a new trial has passed, you may try to contest your incarceration by filing a writ of habeas corpus. As with a new trial, new evidence may be presented in a writ of habeas corpus.

4. Denied Motions

In Nevada, you can appeal if the judge denies your motion for a new trial.

Note that once an appeal has been filed with a court of appeals, 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 is inclined to grant a new trial. If it does, the higher court could remand the case to the lower court for a new trial.¹⁵

Frequently Asked Questions

What is the difference between a motion for a new trial and an appeal?

A motion for a new trial asks the same court that heard your original case to hold an entirely new trial, while an appeal asks a higher court to review the lower court’s decision. With a new trial, you can introduce new evidence, whereas appeals only review existing evidence from the original trial.

How long do I have to file a motion for a new trial in Nevada?

You have 7 days after a guilty verdict to file a motion for a new trial in most cases. However, if your motion is based on newly discovered evidence, you have up to 2 years after the verdict to file. For certain category A and B felony convictions, you may request a new trial at any time if genetic marker analysis suggests innocence.

What are the main grounds for requesting a new trial?

The main grounds include newly discovered evidence, judicial error, prosecutorial misconduct, jury misconduct, loss of trial records, ineffective legal counsel, conflicting evidence, perjury, and insufficient evidence to support the conviction.

What happens if my motion for a new trial is denied?

If your motion for a new trial is denied, you can appeal this decision to a higher court. However, once you file an appeal, the lower court loses authority to grant a new trial, though it can certify that it would be inclined to grant one.

Additional Reading

For more in-depth information, refer to the following scholarly articles:

• New Trial in Federal Criminal Cases – Villanova Law Review.
• Evaluating Trial Justice’s Ruling on a Motion for New Trial – Suffolk University Law Review.
• Critical Stage: Extending the Right to Counsel to the Motion for New Trial Phase – William & Mary Law Review.
• Interpreting the Phrase Newly Discovered Evidence: May Previously Unavailable Exculpatory Testimony Serve as the Basis for a Motion for a New Trial under Rule 33 – Fordham Law Review.
• Rethinking the Standard for New Trial Motions Based upon Recantations as Newly Discovered Evidence – University of Pennsylvania Law Review.

See our related article on motions to withdraw a plea (NRS 176.165).

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Legal References