ANATOMY OF DOMESTIC VIOLENCE DEFENSE, PART 4 – ARRAIGNMENT
After the prosecutors have (ideally) reviewed your case and decided which charge(s) to file, your case is placed on the court’s calendar for arraignment.
Q – What is an arraignment?
A – An announcement of the charge and your entry of a plea. Most people plea NOT GUILTY and if you hire us – we will enter it for you.
***WHAT ARRAIGNMENT IS NOT:
It is not a trial, it is not a Motion hearing date, and no witnesses will be appearing etc. It is not the time to tell the judge a long, convoluted story as to why you’re being railroaded, or how the police used “excessive force” and violated your rights, we will deal with all that later. Please do not try to do this, and do not ask us to do this – as you may find yourself held in contempt. A fine Hollywood example of this takes place in My Cousin Vinny where an inexperienced Joe Pesci never fully understands the procedural aspects of arraignment and gets himself in hot water with the judge. Do not be the person who embarrasses themself in court. Let us handle this for you. Remember, there are probably at least thirty (30) other people who will be arraigned with you and it’s not fair to monopolize the court’s time.
APPLICABLE STATUTE:
NRS 174.015 Conduct of arraignment.
1. Except as otherwise provided in subsection 3, arraignment shall be conducted in open court and shall consist of reading the indictment or information to the defendant or stating the substance of the charge and calling on the defendant to plead thereto. The defendant shall be given a copy of the indictment or information before the defendant is called upon to plead.
2. In justice court or municipal court, before the trial commences, the complaint must be distinctly read to the defendant before the defendant is called upon to plead.
3. In justice court or municipal court, before the defendant is called upon to plead, the court shall determine whether the defendant is eligible for assignment to a preprosecution diversion program pursuant to NRS 174.031.
Once you arrive in court, a bailiff will tell you where to sit, tell you to take off your hat and/or sunglasses, then (usually) give a verbal presentation. They tell everyone that there is no communication of any kind allowed with the inmates, no hand signals, no cell phone usage allowed etc. The judge may not take the bench exactly on time. Judges sometimes have to cover another proceeding for a Judge that called in sick, and they rotate the duties for first-appearances, which sometimes take longer than expected. You may arrive in court at 730 and not get out until 1030 or later.
Q – What determines who is arraigned / has their case called first.
A – Each Judge has BROAD DISCRETION in conducting arraignment, but typically, the order is # 1 – private attorney cases, # 2 – inmates, then # 3 – the general public (alphabetically).
Q – Why do private attorney cases and inmates get called at arraignment first?
A – As a professional courtesy and for safety reasons. Private attorneys do this for a living and frequently have 3 or even 10 other places to be that day, and the Police Department does not want to prolong their duties to supervise inmates OUTSIDE the jail, the inmates are a liability, have to be held in separate staging areas, and can be dangerous. They also need to be fed / given medical care etc. and the courthouse is not equipped to feed / treat inmates.
Q – Do I have to go to court for my arraignment – and what is it like in the courthouse and downtown area?
A – You must appear in court on your arraignment date and time or a warrant will be issued by the judge for your arrest – unless you hire a lawyer to go for you. Frequently from a cost-of-doing-business standpoint it is worth your while just to hire us so you can go to work that day and forget about your case for a while, and not subject yourself to the cattle-call that can be local courthouses on arraignment days. There will be long lines to the metal detectors, you will walk past homeless people and frequently get panhandled. It is like going into an airport. Your case will frequently be called later, after those with private attorneys, and after the inmate cases – people could not afford bail or who were denied bail.
Q – Do the prosecutors talk to defendants and attorneys during arraignment?
A – Rarely – if they do it will not be a long conversation.
Q – What is discussed?
A – Sometimes an EARLY OFFER is made. Discovery may be delivered, or, on a more serious case, the prosecutors tell the defendant right then of their intent to seek jail or prison upon any conviction/plea. Prosecutors may also announce that they want the judge to put on the record that they are requesting that you have no contact with the alleged victim – since that may or may not have been done by the Magistrate during any first appearance hearing.
Q – What is an early offer and what is discovery?
A – An early offer is a plea agreement, usually made to you of you enter a plea of GUILTY or NO CONTEST as charged to domestic violence, with a 26-week Batterer’s Intervention Course that must be completed one-week at a time, court costs etc. You would also be WAIVING your IMPORTANT rights, i.e. to cross examine witnesses and your right to have the DA’s office be forced to prove every element of your charge beyond and to the exclusion of any reasonable doubt – UNANIMOUSLY to a jury of your peers. Typically, the first (early) offer made to you will not be the best, as is the case in almost any other type of negotiation .
DISCOVERY is a packet of paper given to us and signed for from the DA – containing the Information (charging document), police report and witness statements and anything else the DA’s office intends to use against you. It is frequently incomplete and may be missing body camera footage. We end up having to request those later (separately).
***Keep in mind, an early offer is not necessarily indicative of the strength of the state’s evidence / case against you. As mentioned earlier, the individual prosecutor may not even know nearly as much about your case as we do during this stage, and that these early offers are typically “canned” or standard across many DA’s offices***
Q – Why can’t we have a longer discussion with the prosecutor that day?
A – They need to pay attention in court when every OTHER case is called – so they are usually too busy, and – that prosecutor in court may not be the one ultimately litigating the case and may not have authority to break, or deal the case down.
APPLICABLE STATUTE:
NRS 174.235 Disclosure by prosecuting attorney of evidence relating to prosecution; limitations.
1. Except as otherwise provided in NRS 174.233 to 174.295, inclusive, at the request of a defendant, the prosecuting attorney shall permit the defendant to inspect and to copy or photograph any:
(a) Written or recorded statements or confessions made by the defendant, or any written or recorded statements made by a witness the prosecuting attorney intends to call during the case in chief of the State, or copies thereof, within the possession, custody or control of the State, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney;
(b) Results or reports of physical or mental examinations, scientific tests or scientific experiments made in connection with the particular case, or copies thereof, within the possession, custody or control of the State, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney; and
(c) Books, papers, documents, tangible objects, or copies thereof, which the prosecuting attorney intends to introduce during the case in chief of the State and which are within the possession, custody or control of the State, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney.
2. The defendant is not entitled, pursuant to the provisions of this section, to the discovery or inspection of:
(a) An internal report, document or memorandum that is prepared by or on behalf of the prosecuting attorney in connection with the investigation or prosecution of the case.
(b) A statement, report, book, paper, document, tangible object or any other type of item or information that is privileged or protected from disclosure or inspection pursuant to the Constitution or laws of this state or the Constitution of the United States.
Discovery obligations are RECIPROCAL – that means as your defense attorneys we are required to tell the DA’s office if you have an alibi, we must give the DA’s office a witness list and send out “preservation letters”. This obligation lasts throughout the duration of the process. Providing late discovery is usually called “sandbagging”. No attorney on either side wants to be accused of that.
Q – What is a “preservation letter”?
A – If, for example, a casino has video footage that we consider vital to your defense, we are best-served to mail them a letter ASAP informing them of their duty to preserve and not erase it. Then, even if they do erase it we can get a PRESUMPTION (via jury instruction) that the destroyed evidence would have been FAVORABLE to your defense. Applicable Nevada Revised Statute is 47.250(3)
Q – What happens if the DA fails to disclose evidence/witnesses against me until later?
A – The judge has BROAD DISCRETION in potentially striking any evidence disclosed unreasonably late, but that is considered an EXTREME sanction. The more immediate and appropriate sanction is additional time – to the injured party i.e. we would be entitled to a continuance to EVALUATE the new evidence. Usually there is also injury to the late-disclosing attorney’s professional reputation. A professional attorney never wants a judge to think they are lazy and / or lacking in respect for the rules.
SUMMARY
Arraignment is just the formalized beginning of the criminal justice process. It is frequently difficult or impossible to get the DA’s office to give us what you want at that time – and they may not be ALLOWED to do what we want anyway. We need more time for the case to be assigned to a different prosecutor and usually send them a detailed email explaining to them WHY they should give us what we want. We also have to review all the police reports with you for accuracy and check for issues leading to defenses based upon the 4th, 5th, and 6th Amendments to The United States Constitution. Then we DEVELOP those defenses for their actual suppression and / or plea negotiation value.
For more domestic violence defense information click here.
Call us today at 702-895-9111 to schedule a consultation and discuss your defenses.
