Clarification of “Conscious Indifference” Standard in Preliminary Hearing Continuances

Introduction

The Supreme Court of Nevada’s decision in State v. Trinh (2025) addresses the procedural safeguards governing continuances of preliminary hearings under NRS 171.196(2) and the circumstances under which a dismissal for “prohibited prosecution” is justified. The case arose after the charging complaint against respondent Duy Duoc Trinh for first-degree kidnapping of a minor, child luring, and child endangerment was dismissed by the district court on habeas corpus review for “unnecessary delay.” The State later re-indicted Trinh by grand jury. Trinh moved again to dismiss, invoking Maes v. Sheriff and the requirement that a prosecutor demonstrate good cause via sworn affidavit or testimony (per Hill v. Sheriff and Bustos v. Sheriff). The district court granted the motion, finding “conscious indifference.” The State appealed.

Summary of the Judgment

In a unanimous order, the Supreme Court reversed the district court’s dismissal and remanded the case. The court held that:

• “Conscious indifference” requires more than negligence—it demands a dereliction of duty or willful disregard of procedural rules.
• The record did not support a finding of conscious indifference: the prosecutor gave timely notice of the conflict, attempted to secure defense stipulation, and the conflict (a trial set to begin “within the hour”) was undisputed.
• Given these circumstances, barring re-indictment would be an impractical application of Hill and Bustos, especially where the State informed the court in good faith of the scheduling conflict.

Analysis

1. Precedents Cited

• Maes v. Sheriff (1970): Bars reprosecution after dismissal when the prosecutor willfully fails to comply with important procedural rules.
• Hill v. Sheriff (1969): Requires a sworn affidavit demonstrating good cause for continuance based on witness unavailability.
• Bustos v. Sheriff (1971): Permits sworn testimony as an alternative when witness unavailability arises as a surprise.
• Subsequent cases on “conscious indifference”:
  • Austin v. State (1971): Dismissal affirmed where the prosecutor repeatedly failed to subpoena witnesses and was derelict.
  • McNair v. Sheriff (1973): Dismissal where the State offered no grounds or affidavits for continuance.
  • Sheriff v. Terpstra (1995): Emphasized realistic application of Hill and Bustos when the conflict is undisputed and firmly established.

2. Legal Reasoning

The court applied an abuse-of-discretion standard to the district court’s order. It reviewed three key elements:

1. Proof of Procedural Failure: The prosecutor did not submit a sworn affidavit or testimony under Hill/Bustos when seeking the continuance.
2. Degree of Fault: The district court found “conscious indifference,” but the Supreme Court examined whether the record showed willful or deliberate disregard of Trinh’s rights.
3. Existence of Prejudice or Real Conflict: The conflict—a trial in another matter scheduled to begin immediately—was communicated over a week in advance and undisputed.

Although the procedural step (sworn support for the continuance) was omitted, the court concluded that the prosecutor’s timely notice, effort to obtain a stipulation, and the impracticality of simultaneous proceedings negated a finding of conscious indifference. The court stressed that “negligence” or “dilatory” conduct alone does not meet the stringent Maes standard for prohibited reprosecution.

3. Impact

This ruling refines Nevada’s prosecutorial-continuance jurisprudence by clarifying that:

• A mere procedural misstep (failure to file an affidavit or swearing testimony) does not automatically amount to “conscious indifference.”
• Courts must examine the totality of the circumstances, including notice to defense counsel and the factual reality of scheduling conflicts.
• Prosecutors who act in good faith to notify defense counsel of undisputed conflicts should not risk reprosecution bans under Maes.

Future litigants will rely on this decision to argue that only deliberate or repeated derelictions justify dismissal for prohibited re-prosecution, not isolated or promptly corrected errors.

Complex Concepts Simplified

• Prohibited Prosecution (Maes rule): Once an indictment or complaint is dismissed for willful procedural failures, the State cannot retry the same charges.
• Good Cause for Continuance: Under NRS 171.196(2), the State must show why a preliminary hearing cannot proceed as scheduled—typically via a sworn affidavit (Hill) or live testimony (Bustos).
• Conscious Indifference vs. Negligence:
  • Negligence—careless or inadvertent mistakes.
  • Conscious indifference—a deliberate or reckless disregard of the defendant’s rights.
• Abuse-of-Discretion Standard: Appellate courts defer to trial courts unless their rulings are arbitrary or manifestly unreasonable.

Conclusion

State v. Trinh clarifies that Nevada’s high bar for dismissing criminal charges under Maes requires proof of willful or reckless prosecutorial misconduct—mere failure to file an affidavit or a one-time scheduling oversight is not enough. The decision balances defendants’ procedural rights against practical realities of court scheduling, ensuring that only deliberate abuses of process trigger a ban on reprosecution. This refined standard will guide lower courts and prosecutors in handling continuances, reducing the risk that good-faith errors result in the dismissal of meritorious prosecutions.