FEDERAL MAGISTRATES MAY PRESIDE OVER JURY SELECTION

The United States Supreme Court has held that a United States Magistrate may preside over selection of a criminal jury, rather than a Federal District Court Judge, if the Defendant's lawyer consents. In Gonzalez v. United States, the Court held that there was no reversible error in such an instance, even though consent to have the Magistrate select the jury was never given from the Defendant; the Defendant's criminal defense lawyer had given consent to the procedure.

The Court held that consent from the attorney is sufficient and that there is no need to canvass the Defendant and determine if the Defendant consents to the procedure. Click here to read the Court's 8-1 decision.

NEVADA APPEALS

An appeal is the process by which a higher court is asked to review, and possibly reverse, a lower court's decision. All Nevada appeals are heard by the Nevada Supreme Court. Our Supreme Court can either uphold the District Court's decision, can send the case back for a new trial, and can also reverse and enter judgment for the appellant.

A Nevada appeal is commenced by filing a "notice of appeal." The notice of appeal must be filed within thirty days of the time the final judgment is entered in a criminal case or within thirty days of the time that notice of judgment is given in a civil case (which includes family matters).

To learn more about criminal appeals click here. To learn more about civil and family appeals click here.

NEVADA SUPREME COURT RULES ON ADMISSIBILITY OF INTERCEPTED PHONE CALLS

The Nevada Supreme Court has held that a recorded phone call may be used in Court as long as the recording is legal in the state in which the recording was made. In Mclellan v. State, the Defendant appealed the District Court's admission of telephone calls made in California to the Defendant in Nevada. Only the California residents were aware that the call would be recorded.

The Defendant claimed that the recording should not have been admitted as Nevada law requires that all parties to the call must have been aware of the recording for it to be admissible. California law only required the knowledge of one party to the call that recording was occurring.

The Court held that as long as the recording complies with the law in the place in which the recording is made, it will be admissible at trial.

Click here to read the Nevada Supreme Court's opinion.

STATE LAW VIOLATIONS DO NOT NECESSARILY EQUATE TO CONSTITUTIONAL VIOLATIONS

The U.S. Supreme Court has held that Virginia officers did not violate the Fourth Amendment when they arrested a man for driving on a suspended license and eventually discovered narcotics. In Virginia v. Moore the Court considered whether the constitution was violated by the arrest even though state law only allowed for the issuance of a citation.

The Court, without dissent, held that violations of state law do not necessarily equal a constitutional violation as the meaning and breadth of state laws are different than that of the constitution. Accordingly, the extent to which a state statute provides protection does not mean that the constitution must provide the same protection.

Click here to read the Court's opinion. Click here to learn more about narcotics charges.

U.S. SUPREME COURT UPHOLDS KENTUCKY LETHAL INJECTIONS

The United States Supreme Court has upheld the lethal injection method by which Kentucky imposes the death penalty. In Baze v. Rees, the Court considered a challenge to the method by which death was imposed. The Appellants claimed that there was a risk that proper procedures would not be followed and, as a result, unnecessary pain would incurred in violation of the Eighth Amendment. The Court rejected this argument and stated that in order to hold a method unconstitutional there must be an "objectively intolerable risk of harm." Given that the injections were administered by trained personnel, with certain levels of experience, the risk of harm was not so great as to justify holding the practice unconstitutional.

Click here to read the Supreme Court's opinion.

Given that the Supreme Court is the last potential appeal for these defendants, it appears that execution is imminent. To learn more about criminal appeals, click here.

SUPREME COURT CLARIFIES WEAPONS ENHANCEMENTS

The Nevada Supreme Court has clarified the circumstances under which a criminal defendant's sentence may be enhanced for use of a deadly weapon even if he was unarmed. In Brooks v. State, 124 Nev. Adv. Op. No. 19 (2008), the Supreme Court held that a defendant may receive such a deadly weapon enhancement "...if an unarmed offender is liable as a principal for the offense that is sought to be enhanced, another principal to the offense is armed with and uses a deadly weapon in the commission of the offense, and the unarmed offender had knowledge of the use of the deadly weapon." In other words, one may receive a deadly weapon sentencing enhancement if he is assisting in the commission of the crime, has a co-conspirator who is armed, and knows that the co-conspirator is armed.

District Court Judge Donald Mosley had essentially instructed the jury that a defendant could receive such a sentencing enhancement even if he was unarmed and did not realize the co-defendant was armed. Mr. Brooks will receive a new trial as a result of this decision.

Click here to learn more about weapons charges in Nevada.