Nebraska Revised Statute 29-4116
Chapter 29 Section 4116
Act, how cited.
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).