In Nevada, “open murder” refers to when prosecutors charge defendants with all four types of homicides for one killing. These four homicide crimes are:
- First-degree murder,
- Second-degree murder,
- Voluntary manslaughter, and
- 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:
- Prosecutorial flexibility: It allows prosecutors to present evidence supporting various degrees of homicide without committing to a single theory.
- Jury empowerment: The jury (or judge in bench trials) has more discretion in determining the appropriate level of culpability based on the evidence presented.
- Defense challenges: Defendants and their attorneys must prepare to defend against multiple charges simultaneously, which can be more complex and resource-intensive.
- 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 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 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.
Open murder prosecutions empower juries to choose which offense (if any) best matches the evidence.
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
