The Elko Justice/Municipal Court conducts a variety of criminal proceedings. The most common are as follows:
Within 48 hours of an arrest without a warrant in Elko County, the judge determines whether there is probable cause to further detain the arrestee who has not already been able to post bail under a revised bail schedule by reviewing the arresting peace officer’s declaration of probable cause for the arrest. Gerstein v. Pugh, 420 U.S. 103 (1975); County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).
The judge sets bail per a revised bail schedule for each charge for which there is probable cause to further detain an arrestee. If appropriate based upon a reading of the arresting officer’s written declaration made under penalty of perjury, the judge may find probable cause to detain an arrestee for the charge(s) on which s/he was arrested or another charge or charges.
Arrestees for whom no probable cause is found to detain further are immediately released from custody.
Excluding non-judicial days, the judge sees arrestees who have been unable to post bail within 72 hours of arrest. NRS 171.178.
At a 72-Hour Hearing, the judge describes to the arrestee:
(a) whether s/he was arrested without a warrant, on a warrant, a parole/probation hold or any combination thereof;
(b) the date and time of his/her arrest and/or booking at the Elko County Jail;
(c) any right to bail and the amount thereof;
(d) his/her court or courts of appearance;
(e) the right to remain silent and to have an attorney present during any questioning; and
(f) the right to require that any criminal complaint against him/her be filed “forthwith,” commonly within seven to ten days after any arrest on a charge or charges without a warrant.
The judge is available twenty-four hours every day, seven days per week, to review applications for a warrant to search property within Elko Township and other locations in Elko County.
Upon application, search warrants are issued or denied according to applicable law.
Before a defendant can be found guilty of a traffic offense, the prosecutor must prove him/her guilty beyond a reasonable doubt.
Although defendants appearing in court to contest a traffic citation can be represented by a lawyer, they often represent themselves.
Trial Procedure in Traffic Cases
Because the prosecutor has the burden of proof in a traffic case, he/she get to call witnesses and put on evidence first.
Prosecution Case
The prosecutor will call his/her witnesses, and ask questions on direct examination. Following direct examination, the defendant may ask questions on cross examination. The prosecutor may follow any cross examination by asking questions on redirect examination. After any redirect examination, the defendant may ask questions on recross examination.
Defense Case
After the prosecutor “rests” (finishes) his/her case, the defendant may present evidence and call his/her witnesses, and ask questions on direct examination. Following direct examination, the prosecutor may ask questions on cross examination. The defendant may follow any cross examination by asking questions on redirect examination. After any redirect examination, the prosecutor may ask questions on recross examination.
The defendant should keep in mind that not calling any witnesses or presenting any evidence in a defense case cannot and will not be used against him/her in any way because the prosecutor has the burden of proof.
The defendant should also keep in mind that s/he may call himself as a witness in his/her case, although every defendant has the right to remain silent. Silence cannot and will not be used against any defendant in a traffic case. If a defendant decides to testify in his/her own defense, the prosecutor will get to cross examine and recross examine the defendant as appropriate.
Prosecution Rebuttal
Following any defense case, the prosecutor may call witnesses and present evidence in rebuttal. A rebuttal case is limited to presenting testimony and evidence which may arguably rebut testimony/evidence presented in the defense case.
In rebuttal, the prosecutor may call witnesses, and ask them questions on direct examination. After direct examination, the defendant may ask questions on cross examination. The prosecutor may follow any cross examination by asking questions on redirect examination. After any redirect examination, the defendant may ask questions on recross examination.
Defense Surrebutal
Should the prosecutor put on a rebuttal, the defendant may call witnesses and present evidence in surrebuttal. A surrebuttal case is limited to presenting testimony and evidence which may arguably rebut testimony/evidence presented in the prosecution rebuttal case.
In surrebuttal, the defendant calls witnesses and asks them questions on direct examination. Following direct examination, the prosecutor may ask questions on cross examination. The defendant may follow any cross examination by asking questions on redirect examination. After any redirect examination, the prosecutor may ask questions on recross examination.
Argument
After all of the evidence and testimony allowed at trial is in the record, the parties may argue the case. The prosecutor opens the argument because he/she has the burden of proof. After the prosecutor’s argument, the defendant may make a closing argument. After any defense argument, the prosecutor may make an argument strictly limited to “rebutting” the points made in the defense argument.
Argument is not the time to provide new testimony or evidence for the Court. It is instead the time for the prosecutor to argue why, based on the testimony and evidence in the record, the defendant should be found guilty of the offense(s) charged. It is also the time for the defendant to argue why, based on the testimony and evidence in the record, the defendant should be found not guilty of the offense(s) charged.
Court Decision – Not Guilty or Guilty
After the parties make their respective arguments, the Court will apply the appropriate law to the facts it finds, and decide whether the defendant is not guilty or guilty of the offense(s) charged.
The Elko Justice/Municipal Court regularly arraigns defendants on the criminal complaints filed against them.
In the Elko Justice Court, criminal complaints are filed by either the Elko County District Attorney or the Nevada Attorney General.
In the Elko Municipal Court, criminal complaints are filed by the Elko City Attorney.
Regular Arraignment Days and Times - The Elko Justice/Municipal Court conducts arraignments on the following schedule:
Who is Arraigned?
Defendants who have been arrested and released on or without bail must appear in court for arraignment on the appearance date and time given by the releasing facility, unless a Nevada-licensed lawyer in good standing has filed a “Notice of Appearance” on the defendant’s behalf prior to the arraignment date.
Defendants who have been summonsed must appear in court for arraignment on the appearance date and time given in the summons, unless a Nevada-licensed lawyer in good standing has filed a “Notice of Appearance” on the defendant’s behalf prior to the arraignment date.
If a defendant has a lawyer who has filed a “Notice of Appearance” on the defendant’s behalf prior to the arraignment date, the Court’s calendar clerk will set the defendant’s future court appearances in consultation with the defense lawyer and the prosecutor. This procedure dispenses with the need to arraign represented defendants in the Elko Justice/Municipal Court, and is followed as a courtesy to defense lawyers.
What Happens if the Defendant Fails to Appear for Arraignment?
If a criminal defendant fails to appear for his/her arraignment on time, and a “Notice of Appearance” is not in his/her court file, the judge may and often will:
• Send Out a Cash-Only “Bench Warrant” for the Defendant’s Arrest
• Send Bail Bond Company Notice to Forfeit Any Posted Bail Bond
• Order Any Posted Cash Bail to be Forfeited to the Court
Jail Arraignments
The Court regularly conducts arraignments for incarcerated criminal defendants at the courtroom attached to the Elko County Jail during judicial days as time allows.
Misdemeanor Arraignment Procedure
At a misdemeanor arraignment, the judge has jurisdiction to accept a plea to each charge a defendant is facing.
Generally, the judge has no authority to dismiss a misdemeanor charge against a defendant at arraignment. It is up to the appropriate prosecutor to bring and dismiss charges.
At every misdemeanor arraignment, the judge will explain the following things to each defendant.
• Defendant’s Rights
• Maximum Penalties for Every Misdemeanor Charge in Complaint
• Any Minimum Penalties for Misdemeanor Charge(s) in Complaint
• Plea Options Available to Defendant
Misdemeanor Defendant’s Rights in Justice/Municipal Court
• Right to Bail
Under Nevada law, every misdemeanor defendant has the right to bail. If any bail has been set for your case, the judge will tell you what that bail is at your arraignment. In almost all cases, bail for each misdemeanor charge on which a defendant is arrested is set according to a revised bail schedule.
• Right to Lawyer, Either Appointed or Retained
Let the judge know at arraignment if you intend to retain your own lawyer for your case. The judge will then continue your arraignment (move it to a later date) to allow you time to retain a lawyer. Subject to ethical rules for lawyers, you can be represented by any licensed Nevada lawyer in good standing.
Let the judge know at arraignment if you intend to represent yourself for your case. The judge will then have you complete and sign a “Waiver of Right to be Represented by a Lawyer” form if you could be sentenced to jail if convicted of any charge. If the judge finds that you are “knowingly, intelligently and voluntarily” giving up the right to be represented by a lawyer, he will let you represent yourself.
Let the judge know at arraignment if you intend to ask for an appointed lawyer. The judge will then have you complete and sign a “Petition for Appointment of a Lawyer” form. If the judge finds that you are unable to afford a lawyer, and you may be sentenced to jail if convicted of any charge, he will appoint a lawyer to represent you. The Court can order reimbursement for the use of an appointed lawyer. Whether and in what amount reimbursement is ordered depends upon the income and assets you have, as well as your ability to pay reimbursement.
• Right to Speedy, Public Trial Within Sixty Days of Arraignment
• Right to Require Prosecutor to Prove Charge(s) Beyond Reasonable Doubt
Before a criminal defendant can be found guilty of any charge, the prosecutor must prove him/her guilty of that charge beyond a reasonable doubt at a public trial.
• Right to Remain Silent
If a criminal defendant remains silent about his charge(s), that fact cannot and will not be used against him in any way in court.
• Right to Testify in Own Defense
Every criminal defendant has the right to tell his/her side of the case under oath from the witness stand in court. The decision to be silent or testify is the defendant’s decision to make after consulting with his/her lawyer, if any.
• Right to Confront and Cross-Examine Prosecutor’s Witnesses
Every criminal defendant has the right to ask prosecution witnesses questions while they are on the witness stand in court. Subject to rules of evidence and the law, the prosecution witnesses have to answer the defendant’s questions under oath.
• Right to Subpoena Witnesses in Defense Case
Every criminal defendant has the right to subpoena witnesses to testify in his/her case subject to the law. A subpoena is simply a court order requiring a witness to give testimony in or bring designated physical evidence and/or documents to court on the date and time designated in the subpoena.
• Right to Appeal Conviction of Any Charge
The appeals court for the Elko Justice/Municipal Court is the Fourth Judicial District Court. The Fourth Judicial District Court is also located in the Elko County Courthouse. A criminal defendant has only ten calendar days from the date of a finding of guilt to appeal a conviction in a misdemeanor case.
Plea Options in Misdemeanor Cases
“Not Guilty”
If a criminal defendant wants to exercise his/her right to a speedy, public trial, and require the prosecutor to try proving him/her guilty of a charge beyond a reasonable doubt, he/she must either refuse to enter a plea or plead “not guilty” to that charge.
In a typical case, if a criminal defendant does either of these things, the case will be set for trial within sixty days of the plea.
“Guilty”
If a criminal defendant pleads “guilty” to a misdemeanor charge, s/he is telling the judge that s/he agrees with what the prosecutor claims s/he did wrong in the charge.
The judge will not accept a guilty plea unless he finds that it has been made “knowingly, intelligently and voluntarily,” with full knowledge of the defendant’s constitutional rights and the maximum and any minimum penalties for the charge.
“No Contest” (Nolo Contendere)
If a criminal defendant pleads “no contest” to a misdemeanor charge, s/he is telling the judge that he/she is not going to fight the charge because s/he believes the prosecutor has enough evidence to prove the charge beyond a reasonable doubt.
The judge will not accept a no contest plea unless he finds that it has been made “knowingly, intelligently and voluntarily,” with full knowledge of the defendant’s constitutional rights and the maximum and any minimum penalties for the charge.
Sentencing Hearings in Misdemeanor Cases
If a defendant pleads either “guilty” or “no contest” to a charge, the defendant is sentenced immediately in most cases if the judge accepts the plea.
If a defendant is found guilty of a charge following a misdemeanor trial, the defendant is sentenced immediately in most cases.
At a sentencing hearing, the defendant is entitled to make a statement and provide “mitigating” testimony and evidence to the court before the judge pronounces the sentence; however, the defendant is not required to do any of these things.
At a sentencing hearing, the prosecutor is entitled to make a statement and provide “victim impact” testimony and evidence as provided by law.
The Elko Justice/Municipal Court gives notice of arraignment and sentencing hearings to prosecutors’ offices. If the prosecutor does not appear for an arraignment and/or sentencing hearing, the hearing will proceed without the prosecutor present.
The judge will order restitution, if that is appropriate, at misdemeanor sentencing hearings.
The judge will impose other terms of sentence as allowed by law. The sentence may include terms up to and including maximum terms allowed by law. The sentence must include any minimum penalties as required by law as well.
Felony & Gross Misdemeanor Arraignment Procedure
At a felony or gross misdemeanor arraignment, the judge has no authority to accept a plea to any charge the defendant is facing.
Generally, the judge has no authority to dismiss a felony or gross misdemeanor charge against a defendant at arraignment. It is up to a prosecutor to bring and dismiss charges.
At every felony and gross misdemeanor arraignment, the judge will explain the defendant’s rights to him/her.
Felony and Gross Misdemeanor Defendant’s Rights
• Right to Bail
Under Nevada law, every felony and gross misdemeanor defendant has the right to bail, unless he or she is facing a charge of First Degree Murder. If any bail has been set for your case, the judge will tell you what that bail is at your arraignment. In almost all cases, bail for each felony and gross misdemeanor charge on which a defendant is arrested is set according to a revised bail schedule.
• Right to Lawyer, Either Appointed or Retained
Let the judge know at arraignment if you intend to retain your own lawyer for your case. The judge will then continue your arraignment (move it to a later date) to allow you time to retain a lawyer. Subject to ethical rules for lawyers, you can be represented by any licensed Nevada lawyer in good standing.
Let the judge know at arraignment if you intend to represent yourself for your case. The judge will then have you complete and sign a “Waiver of Right to be Represented by a Lawyer” form. If the judge finds that you are “knowingly, intelligently and voluntarily” giving up the right to be represented by a lawyer, he will let you represent yourself.
Let the judge know at arraignment if you intend to ask for an appointed lawyer. The judge will then have you complete and sign a “Petition for Appointment of a Lawyer” form. If the judge finds that you are unable to afford a lawyer, he will appoint a lawyer to represent you. The Court can order reimbursement for the use of an appointed lawyer. Whether and in what amount reimbursement is ordered depends upon the income and assets you have, as well as your ability to pay reimbursement.
• Right to Preliminary Hearing Within Fifteen Days of Arraignment
The judge has the authority to set a preliminary hearing beyond fifteen days of arraignment if the Elko Justice/Municipal Court calendar is too full to hold the preliminary hearing within that time period.
• Right to Require Prosecutor to Prove Charge(s) Beyond Reasonable Doubt
Before a criminal defendant can be found guilty of any charge, the prosecutor must prove him/her guilty of that charge beyond a reasonable doubt at a public trial.
• Right to Remain Silent
If a criminal defendant remains silent about his charge(s), that fact cannot and will not be used against him in any way in court.
• Right to Testify in Own Defense
Every criminal defendant has the right to tell his/her side of the case under oath from the witness stand in court. The decision to be silent or testify is the defendant’s decision to make after consulting with his/her lawyer, if any.
• Right to Confront and Cross-Examine Prosecutor’s Witnesses
Every criminal defendant has the right to ask prosecution witnesses questions while they are on the witness stand in court. Subject to rules of evidence and the law, the prosecution witnesses have to answer the defendant’s questions under oath.
• Right to Subpoena Witnesses in Defense Case
Every criminal defendant has the right to subpoena witnesses to testify in his/her case subject to the law. A subpoena is simply a court order requiring a witness to give testimony in or bring designated physical evidence and/or documents to court on the date and time designated in the subpoena.
• Right to Appeal Conviction of Any Charge
The appeals court for any person convicted of a charge in the Fourth Judicial District Court is the Nevada Supreme Court in Carson City, Nevada.
Before a defendant can be found guilty of a Misdemeanor Offense, the prosecutor must prove him/her guilty beyond a reasonable doubt.
Defendants appearing in court at a trial on misdemeanor charges are most often represented by a lawyer; however, they often represent themselves if they do so knowingly, intelligently and voluntarily.
Defendants are strongly discouraged from representing themselves in criminal cases.
DEFENDANTS NOW HAVE THE RIGHT TO A MISDEMEANOR JURY TRIAL FOR DOMESTIC VIOLENCE OFFENSES
Trial Procedure in Misdemeanor Non-Traffic Cases
Because the prosecutor has the burden of proof, he/she gets to call witnesses and put on evidence first.
Prosecution Case
The prosecutor will call his/her witnesses, and ask questions on direct examination. Following direct examination, the defendant may ask questions on cross examination. The prosecutor may follow any cross examination by asking questions on redirect examination. After any redirect examination, the defendant may ask questions on recross examination.
Defense Case
After the prosecutor “rests” (finishes) his/her case, the defendant may present evidence and call his/her witnesses, and ask questions on direct examination. Following direct examination, the prosecutor may ask questions on cross examination. The defendant may follow any cross examination by asking questions on redirect examination. After any redirect examination, the prosecutor may ask questions on recross examination.
The defendant should keep in mind that not calling any witnesses or presenting any evidence in a defense case cannot and will not be used against him/her in any way because the prosecutor has the burden of proof.
The defendant should also keep in mind that s/he may call herself/himself as a witness in his/her case, although every defendant has the right to remain silent. Silence cannot and will not be used against any defendant in a criminal case. If a defendant decides to testify in his/her own defense, the prosecutor will get to cross examine and recross examine the defendant as appropriate.
Prosecution Rebuttal
Following any defense case, the prosecutor may call witnesses and present evidence in rebuttal. A rebuttal case is limited to presenting testimony and evidence which arguably rebuts testimony/evidence presented in the defense case.
In rebuttal, the prosecutor may call witnesses, and ask them questions on direct examination. After direct examination, the defendant may ask questions on cross examination. The prosecutor may follow any cross examination by asking questions on redirect examination. After any redirect examination, the defendant may ask questions on recross examination.
Defense Surrebutal
Should the prosecutor put on a rebuttal, the defendant may call witnesses and present evidence in surrebuttal. A surrebuttal case is limited to presenting testimony and evidence which arguably rebuts testimony/evidence presented in the prosecution rebuttal case.
In surrebuttal, the defendant calls witnesses and asks them questions on direct examination. Following direct examination, the prosecutor may ask questions on cross examination. The defendant may follow any cross examination by asking questions on redirect examination. After any redirect examination, the prosecutor may ask questions on recross examination.
Argument
After all of the evidence and testimony allowed at trial is in the record, the parties may argue the case. The prosecutor opens the argument because he/she has the burden of proof. After the prosecutor’s argument, the defendant may make a closing argument. After any defense argument, the prosecutor may make an argument strictly limited to “rebutting” the points made in the defense argument.
Argument is not the time to provide new testimony or evidence for the Court. It is instead the time for the prosecutor to argue why, based on the testimony and evidence in the record, the defendant should be found guilty of the offense(s) charged. It is also the time for the defendant to argue why, based on the testimony and evidence in the record, the defendant should be found not guilty of the offense(s) charged.
A preliminary hearing is a probable cause hearing. At a preliminary hearing, the prosecutor presents testimony and evidence in an effort to show that a criminal offense has been committed, and that there is probable cause to believe that the defendant committed it.
If the judge finds following the preliminary hearing that the prosecutor has presented at least “slight or marginal” evidence that there a criminal offense has been committed, and that there is probable cause to believe that the defendant committed it, that defendant is “bound over” to the Fourth Judicial District Court in the Elko County Courthouse for further proceedings in the case.
The Fourth Judicial District Court is a court of general jurisdiction where defendants bound over on felony or gross misdemeanor charges have the right to a speedy and public jury trial of their peers.
Criminal Proceedings