Nebraska Revised Statute 29-4116
Chapter 29 Section 4116
Act, how cited.
Proceedings under the DNA Testing Act are civil in nature, and although the State has only a limited right to appeal in a criminal case, there are no such restrictions under the act; thus, as in any other civil proceeding, the State must cross-appeal in order for the Nebraska Supreme Court to consider any argument that a lower court’s decision should be upheld on grounds specifically rejected below. State v. Pratt, 287 Neb. 455, 842 N.W.2d 800 (2014).
In enacting the DNA Testing Act, the Legislature intended to provide (1) an extraordinary remedy—vacation of the judgment—for the compelling circumstance in which actual innocence is conclusively established by DNA testing and (2) an ordinary remedy—a new trial—for circumstances in which newly discovered DNA evidence would have, if available at the former trial, probably produced a substantially different result. State v. Parmar, 283 Neb. 247, 808 N.W.2d 623 (2012).
Postconviction DNA evidence probably would have produced a substantially different result at trial if the evidence (1) tends to create a reasonable doubt about the defendant's guilt and (2) does not merely impeach or contradict a key eyewitness' testimony, but is probative of a factual situation different from that to which the witness testified. State v. Parmar, 283 Neb. 247, 808 N.W.2d 623 (2012).
To warrant an order vacating a judgment of conviction under the DNA Testing Act, the movant must present DNA testing results that, when considered with the evidence presented at the trial leading to conviction, show a complete lack of evidence to establish an essential element of the crime charged. But to warrant an order for a new trial under the DNA Testing Act, the movant must present DNA testing results that probably would have produced a substantially different result if the evidence had been offered and admitted at the movant's trial. State v. Parmar, 283 Neb. 247, 808 N.W.2d 623 (2012).
An action under the DNA Testing Act is a collateral attack on a conviction and is therefore similar to a postconviction action and is not part of the criminal proceeding itself. State v. Pratt, 273 Neb. 817, 733 N.W.2d 868 (2007).