A Guide to “Motion for a New Trial” in Nevada Criminal Law

A motion for a new trial in Nevada criminal cases is where a defendant who gets convicted at trial asks the judge to vacate the guilty verdict and grant an entirely new trial. Courts allow trial do-overs for various reasons, such as newly discovered evidence, ineffective assistance of counsel, or misconduct by the prosecutors, jurors, or judge. If the judge denies the motion, defendants can still pursue an appeal.

NRS 176.515 states:

The court may grant a new trial to a defendant if required as a matter of law or on the ground of newly discovered evidence.

In this article, our Las Vegas criminal defense attorneys discuss:

• 1. What is a “motion for a new trial” in Nevada criminal cases?
• 2. How is it different from an appeal?
• 3. What are the grounds to get a new trial?
  • 3.1. Newly discovered evidence
  • 3.2. Judicial error
  • 3.3. Prosecutorial misconduct
  • 3.4. Jury misconduct
  • 3.5. Loss of transcript or record
  • 3.6. Ineffective assistance of counsel
  • 3.7. Conflicting evidence
  • 3.8. Perjury
  • 3.9. Insufficient evidence
• 4. When is the deadline to file?
• 5. What if the judge denies a new trial?

1. What is a “motion for a new trial” in Nevada criminal cases?

Like it sounds, a motion for a new trial is when a defendant who is 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.¹

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

2. How is it different from an appeal?

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 trial court that heard the original case. So a defendant found guilty in Las Vegas Justice Court would request a new trial in Las Vegas Justice Court.

The other main difference between appeals and new trials concerns evidence. In appeals, defendants are not allowed to introduce any new evidence. This is because appellate courts merely review the original trial. In contrast, new trials may include new evidence.²

In practice, many convicted defendants never request new trials and only pursue appeals. This is because judges very rarely grant new trials. Judges do not like to admit that trials they presided over were flawed in any way.

Nevada judges only rarely grant motions for a new trial.

3. What are the grounds to get a new trial?

There is no set list of reasons that justify new criminal trials in Nevada. In general, a new trial is meant to correct an injustice that occurred in the first trial. The following are some reasons a court may grant a convicted person a redo.

3.1. 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 someone 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

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 cannot have been reasonably findable during the original trial.

Example: Rob is convicted of burglary (NRS 205.060) 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 any new evidence qualifies as grounds for a new trial in Nevada.

3.2. Judicial error

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 will not grant a new trial if it finds that any errors were harmless and did not prejudice the defendant.⁴

3.3. Prosecutorial misconduct:

A frequent ground for a new trial is when a prosecutor commits misconduct so gross it prejudices the defendant. The most serious type of prosecutorial misconduct is failing to disclose exculpatory evidence, which is evidence that suggests the defendant is 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 includes referring to inadmissible evidence in front of the jury or failing to gather material evidence out of gross negligence or bad faith.

3.4. 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 the defendant.⁶ 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 is 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 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

3.5. 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.⁸

A common ground for a new trial is newly discovered evidence.

3.6. 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 that did not influence the course or outcome of the case would not qualify.⁹

3.7. Conflicting evidence

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 was not consistent enough to sustain a conviction.¹⁰

3.8. Perjury

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:

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 the defendant.¹¹

3.9 Insufficient evidence

A jury should not 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 would not 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.

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 the defendant in respect to a substantial right.¹²

4. When is the deadline to file?

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 a seven (7) day time period after the guilty verdict to file a motion for a new trial.¹³ But there is one exception.

People who have been imprisoned for a conviction of a category A felony or a category B felony 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.¹⁴

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.

5. What if the judge denies a new trial?

If the judge denies a criminal defendant’s motion for a new trial, the defendant can appeal. 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 then remand the case down to the lower court for a new trial.¹⁵

Call our law firm for legal advice. We offer consultations in the state of Nevada. We also practice personal injury law, family law, and immigration law.

In California? See our article on California laws for filing a motion for a new trial.

In Colorado? See our article on Colorado laws for filing a motion for a new trial.

Legal References