[Rev. 11/20/2013 5:11:42 PM--2013]

CRIMINAL RULES OF PRACTICE FOR THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

APPROVED BY THE SUPREME COURT OF NEVADA

Effective February 6, 2002

and Including

Amendments Through September 1, 2013

 

ORDER

 

      Pursuant to a petition filed by the judges of the Second Judicial District Court, and it appearing to the court that adoption of local Criminal Rules for the Second Judicial District Court is warranted,

      It Is Hereby Ordered that the Criminal Rules of Practice for the Second Judicial District Court of the State of Nevada shall be adopted and shall read as set forth in Exhibit A.

      It is Hereby Further Ordered that these rule amendments shall become effective immediately. The clerk of this court shall cause a notice of entry of this order to be published in the official publication of the State Bar of Nevada. Publication of this order shall be accomplished by the clerk disseminating copies of this order to all subscribers of the advance sheets of the Nevada Reports and all persons and agencies listed in NRS 2.345, and to the executive director of the State Bar of Nevada. The certificate of the clerk of this court as to the accomplishment of the above-described publication of notice of entry and dissemination of this order shall be conclusive evidence of the adoption and publication of the foregoing rule amendments.

      Dated this 6th day of February, 2002.

 

BY THE COURT

 

A. William Maupin, Chief Justice

 

Cliff Young                                                                                       Miriam Shearing

      Associate Justice                                                                                    Associate Justice

 

Deborah A. Agosti                                                                          Robert E. Rose

      Associate Justice                                                                                    Associate Justice

 

Myron E. Leavitt                                                                            Nancy A. Becker

      Associate Justice                                                                                    Associate Justice

 

 

CRIMINAL RULES OF PRACTICE FOR THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

 

 

      Rule 1.  Scope, purpose and construction.  These rules govern all criminal actions in the Second Judicial District Court of the State of Nevada. They are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. They shall be cited as “L.C.R.” For good cause shown and when the interest of justice requires, the district court may modify these rules by court order, either pursuant to the motion of a party or sua sponte, to fit the facts and circumstances of a particular case pending before the court.

 

Comment:  The purpose of these criminal rules is to provide uniformity in practice among the various judicial departments, however, each individual judge (should) retain discretion over how cases ultimately proceed in their courtroom. This rule strikes a balance between uniformity and judicial discretion. These rules do not apply to juvenile proceedings, post-conviction proceedings or habeas corpus actions. The statement of the purpose and construction of the rules parallels Rule 2 of the Federal Rules of Criminal Procedure.

      [As amended; effective December 15, 2011.]

      Rule 2.  Case assignment.  Each criminal action shall be randomly assigned to a department of the court and shall remain in such department until final disposition of the action, unless:

      (a) the action is brought against a defendant who is the subject of another pending or prior action in this court, in which case the action shall be assigned to the department of the most recent other action; or

      (b) as otherwise ordered by the chief judge consistent with a plan of courtwide case management.

 

Comment:  To the extent possible, cases involving a defendant who is the subject of another case in this district shall be assigned to the department of the other case. Otherwise, cases shall be randomly assigned.

 

      Rule 3.  Initial appearance and arraignment.

      (a) At the initial appearance of the defendant before the district court, the court shall:

             (1) supply the defendant a copy of the indictment or information unless the charging document has previously been made available to the defendant through e-filing;

             (2) if necessary, determine whether the defendant qualifies for appointed counsel and, if so, appoint counsel to represent the defendant. In such event, newly appointed counsel shall be given an extension of time of at least 5 days before entry of plea;

             (3) arraign the defendant upon all charges in the indictment or information;

             (4) subject to the conditions set forth in NRS 178.4853, determine appropriate conditions for the defendant’s release from custody or that detention is warranted;

             (5) if the defendant enters a plea of not guilty, set the dates for trial, pretrial motions, evidentiary hearings or status conferences;

             (6) specify any discovery obligations of the parties beyond those contained in Chapter 174 of the Nevada Revised Statutes.

      (b) If the defendant enters a plea of guilty or nolo contendere, the court may transfer the action to the Second Judicial District Court (Washoe County) Specialty Courts, if appropriate, or order a presentence report and set a sentencing date consistent with the jail population management policies of the court and L.C.R. 9.

      (c) Subject to the provisions of NRS 176.135, a presentence report may be waived and sentence imposed at the entry of a plea of guilty or nolo contendere.

 

Comment:  The initial appearance is the occasion for the court and counsel to establish a meaningful schedule for the trial and all pretrial activity appropriate to each case. Except in unforeseen, extraordinary circumstances, the schedule will not be subsequently modified. Status conferences are conducted to monitor the progress of a case. Persons who enter a plea of guilty or nolo contendere and qualify for treatment in the Second Judicial District Drug Court may, if the department deems the defendant to be an appropriate referral, be immediately referred to such court without further proceedings in the department in which the criminal action is commenced.

      [As amended; effective December 15, 2011.]

      Rule 4.  Pleas of guilty or nolo contendere.

      (a) All pleas of guilty or nolo contendere entered pursuant to a plea bargain agreement shall be supported by a written plea memorandum, filed in open court at the entry of the plea, stating:

             (1) the terms of the plea bargain agreement;

             (2) the factual basis for the plea and an acknowledgment by counsel that the defendant has been advised of the discovery produced and the evidence the State intends to present at trial;

             (3) the constitutional rights waived by the defendant;

             (4) the maximum possible punishment for any charge which is the subject of the plea bargain agreement;

             (5) whether probation is available and whether multiple or enhanced sentences can be concurrent or consecutive;

             (6) the defendant’s acknowledgment that the court is not bound by the plea bargain agreement; and

             (7) the defendant’s knowledge of and voluntary consent to the terms of the plea bargain agreement and the contents of the memorandum.

      (b) The guilty or nolo contendere plea memorandum shall be signed by the defendant and counsel for all parties to the agreement.

 

Comment:  The plea bargain memorandum is integral to the entry of a guilty or nolo contendere plea and must be completed, signed and filed when the plea is entered.

 

      Rule 5.  Release and detention pending judicial proceedings.

      (a) The court shall determine appropriate conditions for release or that detention is warranted using the factors set forth in NRS 178.4853 and NRS 178.486.

      (b) All persons released from custody, on bail or otherwise, shall comply with any terms or conditions of release imposed by the court.

      (c) The court shall order the pretrial release of a defendant on personal recognizance (subject to supervision by the court services department, or upon such additional conditions as the court deems appropriate) unless the court determines that such release will not reasonably assure the appearance of the defendant as required or will endanger the safety of any other person or the community.

      (d) If the court determines that the release of the defendant pursuant to subsection (c) of this rule will not reasonably assure the appearance of the defendant as required or will endanger the safety of any other person or the community, the court shall consider the release of the defendant upon the least restrictive condition, or combination of conditions, that will reasonably assure the presence of the defendant as required and the safety of any other person or the community, which may include the condition that the defendant:

             (1) remain in the custody of a designated person, who agrees to assume supervision and agrees to report any violation of a release condition to the court services department, if the designated person submits to the jurisdiction of the court and is able reasonably to assure the court that the defendant will appear as required and will not pose a danger to the safety of any other person or the community;

             (2) maintain employment or, if unemployed, actively seek employment;

             (3) maintain or commence an educational program;

             (4) abide by specified restrictions on personal associations, place of abode or travel;

             (5) avoid all contact with an alleged victim of the crime and with a potential witness who may testify concerning the offense;

             (6) report by telephone or in person on a regular basis to the court services department or a designated law enforcement agency or other agency;

             (7) comply with a specified curfew;

             (8) refrain from possessing a firearm, destructive device or other dangerous weapon;

             (9) refrain from the use of alcohol or controlled substances;

             (10) undergo a specified program of available medical, psychological, psychiatric or other counseling or treatment, and remain in a specified institution if required for that purpose;

             (11) execute an agreement to forfeit upon failing to appear as required, such designated property, including money, as is reasonably necessary to assure the appearance of the defendant as required, and post with the court such indicia of ownership of the property or such percentage of the money as the court may specify;

             (12) execute a bail bond with solvent sureties in such amount as is reasonably necessary to assure the appearance of the defendant as required;

             (13) return to custody for specified hours following release for employment, schooling or other limited purposes; and

             (14) satisfy any other condition that is reasonably necessary to assure the appearance of the defendant as required and to assure the safety of any other person and the community.

      (e) The court may at any time amend the order or conditions of release.

 

Comment:  This rule adopts a release evaluation process primarily derived from 18 U.S.C. § 3142.

 

      Rule 6.  Discovery.

      (a) The parties, through their counsel, without order of the court, shall timely provide discovery of all information and materials permitted by any applicable provision of the Nevada Revised Statutes.

      (b) The content, timing, manner and sequence of any additional discovery shall be directed by the court at the initial appearance or as soon thereafter as reasonably practicable.

      (c) Any discovery dispute shall be brought to the attention of the court expeditiously by telephone conference, on the record, with the court and all counsel, on oral application in open court or a written motion.

      (d) The court may impose appropriate sanctions for the failure of a party or counsel to comply with any discovery obligation imposed by law or ordered by the court.

 

Comment:  Subsection (a) of this rule eliminates the need for a discovery order unless the court orders discovery beyond that required by the statutes of Nevada. The other subsections of the rule promote prompt resolution of discovery disputes and require sanctions for non-compliance with any discovery obligation.

 

      Rule 7.  Pretrial motions.

      (a) Except as otherwise ordered by the court, all pretrial motions, including motions in limine, shall be served and filed no later than 20 days prior to trial. Computation of time as set forth in this rule shall be in calendar days. If a pretrial motion is filed within 30 days prior to trial, it shall either be personally served upon the opposition on the date of filing or be e-filed.

      (b) Every motion or opposition thereto shall be accompanied by a memorandum of legal authorities and any exhibits in support of or in opposition to the motion.

      (c) All motions shall be decided without oral argument unless requested by the court or party.

      (d) If an evidentiary hearing is required by law or requested by a party or ordered by the court and a hearing has not already been set, counsel for the movant shall, upon filing the motion, notify the opposing counsel and the department’s administrative assistant of the need for the hearing. No later than 5 days after movant’s filing of the motion, all counsel must meet with the department’s administrative assistant and set the hearing.

      (e) A legal memorandum in opposition to a motion shall be served and filed no later than 10 days after service of the motion, but in no case later than 10 days prior to trial. Failure of the opposing party to serve and file a written opposition may be construed as an admission that the motion is meritorious and consent to the granting of the same.

      (f) A reply memorandum in support of a motion shall be served and filed, and the motion submitted for decision, no later than 3 days after service of the opposition, but in no case later than 7 days prior to trial. On the date that the reply is filed, the moving party shall notify the filing office to submit the motion for decision by filing and serving all parties a written request for submission of the motion on a form supplied by the filing office. Should the moving party elect not to reply, the moving party shall notify the filing office to submit the motion in accordance with this rule within 3 days after service of the opposition.

      (g) Nothing in subsections (a), (d), (e), or (f) precludes a request for an extension of time upon good cause shown.

      (h) Except as permitted by the presiding judge, legal memoranda in support of a motion, opposition, or reply shall not exceed 10 pages, exclusive of exhibits.

      (i) Motions made under L.C.R. 5 may be made orally in open court or in an on-the-record telephone conference with the court and opposing counsel.

      (j) If counsel for a party fails to comply with the time frames specified in this rule, the court, in its discretion, may order that said counsel be sanctioned in any manner the court deems appropriate, including, but not limited to, monetary sanctions.

 

Comment:  The process and timing of motions and evidentiary hearings should enable disposition of pretrial issues substantially in advance of trial. Good cause for an extension may include the filing of two or more motions on the same date.

      [As amended; effective December 15, 2011.]

      Rule 8.  Jury instructions and exhibits.

      (a) Prior to the submission of jury instructions, counsel for the parties shall meet and confer to avoid the submission of duplicate instructions. Jury instructions offered by the State shall be served on any opposing party and submitted to the court no later than 5:00 p.m. on the Wednesday before trial. Jury instructions offered by the defense shall be submitted in camera by Friday before trial.

      (b) All proposed jury instructions shall be in clear, legible type on clean, white, heavy paper 8 1/2 × 11 inches in size and not lighter than 16 lb. weight with a black border line and no less than 24 numbered lines. The signature line with the words “District Judge” typed thereunder shall be placed on the right half of the page, a few lines below the last line of type on the last instruction. The designation, “Instruction No. ___” shall be near the lower left hand corner of the page.

      (c) All original instructions, except pattern instructions, shall be accompanied by a separate copy of the instruction containing a citation to the form instruction, statutory or case authority supporting that instruction.

      (d) The district court shall conduct a conference with all counsel to settle jury instructions as provided by NRS 175.161. During that conference, the parties may submit additional jury instructions as needed. New instructions offered at that time must comply with subsections (b) and (c) of this rule.

      (e) Any rejected instruction shall be made a part of the record as proposed and filed with the clerk marked as “Refused.”

      (f) Trial exhibits shall be marked in one numerical sequence, without regard to the offering party, at a conference scheduled by counsel with the court clerk. The conference shall be conducted during the week before trial. Once the clerk marks the trial exhibits, they shall remain in the custody of the clerk.

      (g) When marking exhibits with the clerk, counsel shall advise the clerk of all exhibits that may be admitted without objection. Any stipulated exhibits or exhibits as to which there is no objection are deemed admitted and may be referenced by counsel in opening statement.

      [As amended; effective December 15, 2011.]

      Rule 9.  Sentencing.

      (a) Counsel are required to assist the court in projecting the time required to conduct the sentencing hearing. Counsel anticipating any unusual matters affecting the length or other conditions of any sentencing proceeding shall advise the court prior to or at the setting of the sentencing date, or as soon thereafter as practicable. The court may set lengthy sentencing hearings on dates and times different from the department’s customary criminal calendar.

      (b) If the court deems the defendant to be an appropriate referral, the court shall,

             (1) at arraignment, where legally permissible, transfer the case to Drug Court for all further proceedings. A defendant seeking entry into the Drug Court program must obtain conditional approval prior to assignment;

             (2) pursuant to the provisions of NRS Chapters 453 and 458, at sentencing, transfer the case to the Second Judicial District Specialty Court; or

             (3) at sentencing, order a defendant to complete Second Judicial District Specialty Court as a condition of probation and transfer the case for that purpose;

             (4) the Specialty Court has jurisdiction of the matter until the defendant is terminated from Specialty Court at which time Specialty Court shall transfer the matter to the sentencing court for further action.

      (c) The court shall not consider any ex parte communication, letter, report or other document but shall forthwith notify counsel for all parties, on the record, of any attempted ex parte communication or document submission.

 

Comment:  If possible, the court should be aware of any unusual aspects of sentencing when the sentencing time and date are set. These may include anticipated delays in the provision of legal documents, the need for a restitution hearing, or lengthy testimony of witnesses. Except as otherwise required by law, counsel for all parties should be privy to any communications or materials submitted in mitigation or aggravation of sentence. The rule also clarifies the jurisdiction of the departments for cases assigned to Drug Court, Diversion Court and probation where Drug Court is a condition.

      [As amended; effective December 15, 2011.]

      Rule 10.  Continuances.

      (a) The timing of proceedings as directed by the court at the initial appearance shall not be enlarged except upon a showing of good cause.

      (b) Stipulations or requests for the continuance of any proceeding shall be in writing, signed by counsel and the defendant, and submitted to the court as soon as practicable but in no event later than 4:00 p.m. on the judicial day immediately preceding the event. The court may waive the signature of the defendant provided counsel certifies he or she has obtained the consent of the defendant to the continuance.

 

Comment:  Continuances of any criminal proceeding are not favored, but, if requested, shall be presented to the court under the terms of this rule.

 

      Rule 11.  Miscellaneous provisions.

      (a) A pretrial status conference may be conducted if deemed appropriate by the court.

      (b) Any withdrawal of counsel shall be in writing, approved by the court and served on opposing counsel and notice to the party affected.

      (c) Substitutions of counsel shall be in writing and served on opposing counsel. Substituted counsel shall transfer all files and discovery to the defendant’s new counsel within 5 days of the date of substitution.

      (d) Transfer of primary responsibility for cases between attorneys within the same office requires the filing of a Notice of Appearance. This applies but is not limited to government agencies of the Washoe County District Attorney’s Office, the Washoe County Public Defender’s Office, and the Washoe County Alternate Public Defender’s Office.

      (e) Counsel shall not communicate with or attempt to influence a law clerk upon the merits of any contested matter pending before the judge to whom the law clerk is assigned.

 

Comment:  Status conferences are conducted to monitor the progress of a case. The court shall not conduct settlement conferences in criminal cases.

      [As amended; effective December 15, 2011.]