What does “open murder” mean in Nevada?

In Nevada, “open murder” refers to when prosecutors charge defendants with all four types of homicides for one killing. These four homicide crimes are:

1. First-degree murder,
2. Second-degree murder,
3. Voluntary manslaughter, and
4. Involuntary manslaughter.

Prosecutors typically use the “open murder” strategy when they want to charge the defendant with first-degree murder but are unsure that they can prove guilt beyond a reasonable doubt. By charging “open murder,” prosecutors give the jury (or judge) the flexibility to determine which specific homicide crime, if any, the defendant should be convicted of.

Example: The D.A. charges Chris with open murder. During jury deliberations, the jurors agree that Chris lacked an intent to kill and malice. They still believe Chris was criminally responsible for the death, though, so they convict Chris of the laxest homicide crime: Involuntary manslaughter.

Had the D.A. charged Chris with only first-degree murder, Chris would have been totally acquitted. Though since this is an open murder case, the jury had the choice to hold Chris responsible for a lesser offense more in line with the evidence presented at trial.

Pros and Cons of an Open Murder Case

The open murder charging strategy has several significant implications:

1. Prosecutorial flexibility: It allows prosecutors to present evidence supporting various degrees of homicide without committing to a single theory.
2. Jury empowerment: The jury (or judge in bench trials) has more discretion in determining the appropriate level of culpability based on the evidence presented.
3. Defense challenges: Defendants and their attorneys must prepare to defend against multiple charges simultaneously, which can be more complex and resource-intensive.
4. Potential for compromise verdicts: Juries may be more likely to reach a consensus on a lesser included offense if they cannot agree on the most serious charge.

Nevada’s four different homicide crimes are summarized below.

1. First-Degree Murder

First-degree murder is the most serious homicide charge in Nevada. It involves:

• Premeditated and deliberate killing, or
• Killings committed during certain serious felonies (“felony murder rule”).

If convicted, defendants face:

• Death penalty (if there is at least one aggravating circumstance that outweighs all the mitigating circumstances),
• Life in prison with or without the possibility of parole after 20 years, or
• 50 years in prison with the possibility of parole after 20 years.¹

2. Second-Degree Murder

Second-degree murder is an unintentional killing where the defendant acted so recklessly that death was a foreseeable consequence. One of the most common examples is playing Russian roulette.

Like first-degree murder, second-degree murder is a category A felony in Nevada, though it carries lesser penalties:

• Life in prison with the possibility of parole after 10 years, or
• 25 years in prison with the possibility of parole after 10 years.²

3. Voluntary Manslaughter

Voluntary manslaughter is a “heat of passion” killing where any reasonable person in the defendant’s position might have also been provoked to lose their self-control and kill.

Like first-degree murder, voluntary manslaughter in Nevada requires an intent to kill. Though unlike first-degree murder, there is no premeditation with voluntary manslaughter. The classic example is a husband killing his wife’s lover right after walking in on them.

Voluntary manslaughter is a category B felony in Nevada, punishable by:

• 1 to 10 years in prison and
• Up to $10,000.³

4. Involuntary Manslaughter

Involuntary manslaughter comprises:

• Unintentional killings resulting from criminal negligence, or
• Deaths caused during the commission of an unlawful act not amounting to felony murder.

An example is when a bicyclist fails to yield, causing a deadly collision with a pedestrian.

Involuntary manslaughter is a category D felony in Nevada, carrying:

• 1 to 4 years in prison in prison,
• Up to to $5,000.⁴

Homicide Defenses

Depending on the specific case, potential defenses to Nevada murder and/or manslaughter charges include:

• You acted in self-defense (or the defense of others),
• You were falsely accused,
• You were wrongly picked out of a line-up,
• The incident was an accident,
• You were insane, or
• The police committed misconduct, such as by coercing your confession.

Frequently Asked Questions

Is an “open murder” charge the same as first-degree murder?

No. While an open murder charge includes the possibility of a first-degree murder conviction, it is actually a broad umbrella charge. It encompasses first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter.

It simply means the prosecutor is accusing the defendant of homicide and leaving it up to the judge or jury to decide the specific degree based on the evidence presented at trial.

Can you get bail if you are charged with open murder in Nevada?

Getting bail for a murder charge in Nevada is very difficult, but not impossible. Under Nevada law, a judge can deny bail entirely if “the proof is evident or the presumption great” that the defendant committed first-degree murder.

However, a skilled defense attorney can request a bail hearing (called a Valdez-Jimenez hearing) to argue that the defendant is not a flight risk or a danger to the community and should be granted bail or house arrest.

Is there a statute of limitations for open murder in Nevada?

No. In Nevada, there is no statute of limitations for murder. A prosecutor can file an open murder charge against a suspect at any time, even decades after the alleged crime occurred, as long as new evidence comes to light.

Does an open murder charge mean the prosecution is seeking the death penalty?

Not necessarily. The death penalty is only an option if the jury ultimately convicts the defendant of first-degree murder. Furthermore, the prosecution must file a formal notice of intent to seek the death penalty and must prove that specific “aggravating circumstances” (such as multiple victims or torture) outweigh any mitigating circumstances.

If you are convicted of second-degree murder or manslaughter, the death penalty is not on the table.

Can an open murder charge be reduced or dropped before it goes to trial?

Yes. An arrest is not a conviction. Depending on the evidence, a criminal defense attorney may be able to negotiate with the District Attorney to drop the charges or reduce them to a lesser offense, such as manslaughter or battery

. If the police committed misconduct, violated your constitutional rights, or if there is clear evidence of self-defense, your attorney can file a motion to have the case dismissed entirely before a trial even begins.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Murder Felony is Felony Murder: How the Nevada Supreme Court’s Decision in Nay v. State Reflects the Growing Misconception Surrounding Afterthought Robbery – Nevada Law Journal
• The Stickiness of Felony Murder: The Morality of a Murder Charge – Mississippi Law Journal
• Evil and the Law of Murder – U.C. Davis Law Review
• How Should We Punish Murder – Marquette Law Review
• Rape, Murder, and Formalism: What Happens if We Define Mistake of Law – University of Colorado Law Review

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Legal References