29-101.
Terms, usage.Unless otherwise provided, words used in this code in the present tense include the future as well as the present. Words used in the masculine gender comprehend as well the feminine and neuter. The singular number includes the plural and the plural the singular. The term writing includes printing. The term oath includes an affirmation.
Source:G.S.1873, c. 58, § 246, p. 781; R.S.1913, § 8901; C.S.1922, § 9922; C.S.1929, § 29-101; R.S.1943, § 29-101.
Annotations
In construction of criminal code, singular number includes the plural. Follmer v. State, 94 Neb. 217, 142 N.W. 908 (1913).
29-102.
Repealed. Laws 1978, LB 748, § 61.
29-103.
Magistrate, defined.The term magistrate in this code, when not otherwise expressly stated, shall mean a judge of the county court or clerk magistrate.
Source:G.S.1873, c. 58, § 248, p. 782; R.S.1913, § 8903; C.S.1922, § 9924; C.S.1929, § 29-103; R.S.1943, § 29-103;
Laws 1972, LB 1032, § 161; Laws 1984, LB 13, § 47; Laws 1986, LB 529, § 27.
Annotations
District judge is not included. Binfield v. State, 15 Neb. 484, 19 N.W. 607 (1884).
29-104.
Prosecuting attorney, defined.The term prosecuting attorney means any county attorney or city attorney or assistant city attorney when such attorney is prosecuting any violation designated as a misdemeanor or traffic infraction.
Source:G.S.1873, c. 58, § 249, p. 782; R.S.1913, § 8904; C.S.1922, § 9925; C.S.1929, § 29-104; R.S.1943, § 29-104;
Laws 1975, LB 168, § 1; Laws 1998, LB 218, § 8.
Annotations
City prosecutor in a city of metropolitan class who is also a deputy county attorney is a "prosecuting attorney" within this section. State v. Kolosseus, 198 Neb. 404, 253 N.W.2d 157 (1977).
Assistant attorney general is agent of Attorney General, and official acts must be performed in name of his principal. Lower v. State, 106 Neb. 666, 184 N.W. 174 (1921).
29-105.
Code; general and special provisions.In the construction of this code each general provision shall be controlled by a special provision on the same subject, if there is a conflict.
Source:G.S.1873, c. 58, § 250, p. 782; R.S.1913, § 8905; C.S.1922, § 9926; C.S.1929, § 29-105; R.S.1943, § 29-105.
Annotations
Penal statute applies only to persons clearly within its terms. State v. Dailey, 76 Neb. 770, 107 N.W. 1094 (1906).
29-106.
Code and other law; construe according to plain import of language.This code and every other law upon the subject of crime which may be enacted shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects, and no person shall be punished for an offense which is not made penal by the plain import of the words, upon pretense that he has offended against its spirit.
Source:G.S.1873, c. 58, § 251, p. 782; R.S.1913, § 8906; C.S.1922, § 9927; C.S.1929, § 29-106; R.S.1943, § 29-106.
Annotations
1. Construction
2. Miscellaneous
1. Construction
Penal statutes are inelastic, must be strictly construed, and are never extended by implication. Macomber v. State, 137 Neb. 882, 291 N.W. 674 (1940).
Railway car is a "building." Hardin v. State, 92 Neb. 298, 138 N.W. 146 (1912).
Where statute is adopted from another state, construction by courts of that state is ordinarily followed. State v. Martin, 87 Neb. 529, 127 N.W. 896 (1910).
There are no common law crimes in this state; common law definitions may be resorted to only where statute designates crimes in general terms. Kinnan v. State, 86 Neb. 234, 125 N.W. 594 (1910).
Language, capable of two constructions, is not construed to make an otherwise innocent act criminal. Gilbert v. State, 78 Neb. 636, 112 N.W. 293 (1907).
In construing a statute, words should be given usual meaning. State v. Byrum, 60 Neb. 384, 83 N.W. 207 (1900).
Violation of the very letter of law is essential to convict. Bailey v. State, 57 Neb. 706, 78 N.W. 284 (1899).
Statute providing how penalty, previously created, may be recovered is not penal and need not be strictly construed. Albion Nat. Bank v. Montgomery, 54 Neb. 681, 74 N.W. 1102 (1898).
2. Miscellaneous
Where defendant requested instruction reciting statute, he could not complain. Lovings v. State, 158 Neb. 134, 62 N.W.2d 672 (1954).
Prosecution for violation of city ordinance is civil proceeding when offense is not made crime by statute. Peterson v. State, 79 Neb. 132, 112 N.W. 306 (1907).
There can be no punishment for act not made penal by plain import of statute. State v. De Wolfe, 67 Neb. 321, 93 N.W. 746 (1903); Moore v. State, 53 Neb. 831, 74 N.W. 319 (1898).
"Original code" refers to code of 1873. Richards v. State, 65 Neb. 808, 91 N.W. 878 (1902).
Legislature intended to abolish hypertechnical rules of common law. Burlingim v. State, 61 Neb. 276, 85 N.W. 76 (1901).
29-107.
Person or other general term, when protection of property intended; meaning.Whenever any property or interest is intended to be protected by a provision of the penal law, and the general term person or any other general term is used to designate the party whose property is intended to be protected, the provisions of such penal laws and the protection thereby given shall extend to the property of the state, or of any county, and of all public or private corporations.
Source:G.S.1873, c. 58, § 252, p. 782; R.S.1913, § 8907; C.S.1922, § 9928; C.S. 1929, § 29-107; R.S.1943, § 29-107.
29-108.
Signature, how construed.The word signature includes the mark of a person unable to write his name; a mark shall have the same effect as a signature when the name is written by some other person and the mark is made near thereto by the person unable to write his name.
Source:G.S.1873, c. 58, § 253, p. 782; R.S.1913, § 8908; C.S.1922, § 9929; C.S.1929, § 29-108; R.S.1943, § 29-108.
29-109.
Terms not defined, how construed; titles, treatment.Except where a word, term or phrase is specially defined, all words used in this code are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject matter relative to which they are employed. The titles merely, to the various chapters, articles, sections or clauses of this code, which are written or printed upon the bill at the time of its approval, shall constitute no part thereof.
Source:G.S.1873, c. 58, § 254, p. 782; R.S.1913, § 8909; C.S.1922, § 9930; C.S.1929, § 29-109; R.S.1943, § 29-109.
Annotations
It is a simple rule of statutory construction that terms which are not specifically defined are to be taken in the sense in which they are understood in common language. State v. Holman, 229 Neb. 57, 424 N.W.2d 627 (1988).
Related context and subject matter must be considered in construing penal statute. State v. Neal, 187 Neb. 413, 191 N.W.2d 458 (1971).
Terms must be taken and construed in the sense in which they are understood in common language. Wirth v. Calhoun, 64 Neb. 316, 89 N.W. 785 (1902).
29-110.
Prosecutions; complaint, indictment, or information; filing; time limitations; exceptions.(1) Except as otherwise provided by law, no person shall be prosecuted for any felony unless the indictment is found by a grand jury within three years next after the offense has been done or committed or unless a complaint for the same is filed before the magistrate within three years next after the offense has been done or committed and a warrant for the arrest of the defendant has been issued.
(2) Except as otherwise provided by law, no person shall be prosecuted, tried, or punished for any misdemeanor or other indictable offense below the grade of felony or for any fine or forfeiture under any penal statute unless the suit, information, or indictment for such offense is instituted or found within one year and six months from the time of committing the offense or incurring the fine or forfeiture or within one year for any offense the punishment of which is restricted by a fine not exceeding one hundred dollars and to imprisonment not exceeding three months.
(3) Except as otherwise provided by law, no person shall be prosecuted for kidnapping under section 28-313, false imprisonment under section 28-314 or 28-315, child abuse under section 28-707, pandering under section 28-802, debauching a minor under section 28-805, or an offense under section 28-813 when the victim is under sixteen years of age at the time of the offense (a) unless the indictment for such offense is found by a grand jury within seven years next after the offense has been committed or within seven years next after the victim's sixteenth birthday, whichever is later, or (b) unless a complaint for such offense is filed before the magistrate within seven years next after the offense has been committed or within seven years next after the victim's sixteenth birthday, whichever is later, and a warrant for the arrest of the defendant has been issued.
(4) Except as otherwise provided by law, no person shall be prosecuted for a violation of subsection (2) or (3) of section 28-831 (a) unless the indictment for such offense is found by a grand jury within seven years next after the offense has been committed or within seven years next after the victim's eighteenth birthday, whichever is later, or (b) unless a complaint for such offense is filed before the magistrate within seven years next after the offense has been committed or within seven years next after the victim's eighteenth birthday, whichever is later, and a warrant for the arrest of the defendant has been issued.
(5) Except as otherwise provided by law, no person shall be prosecuted for an offense under section 28-813.01 or 28-1463.05 (a) unless the indictment for such offense is found by a grand jury within seven years next after the offense has been committed or within seven years next after the victim's eighteenth birthday, whichever is later, or (b) unless a complaint for such offense is filed before the magistrate within seven years next after the offense has been committed or within seven years next after the victim's eighteenth birthday, whichever is later, and a warrant for the arrest of the defendant has been issued.
(6) No person shall be prosecuted for a violation of the Securities Act of Nebraska under section 8-1117 unless the indictment for such offense is found by a grand jury within five years next after the offense has been done or committed or unless a complaint for such offense is filed before the magistrate within five years next after the offense has been done or committed and a warrant for the arrest of the defendant has been issued.
(7) No person shall be prosecuted for criminal impersonation under section 28-638, identity theft under section 28-639, or identity fraud under section 28-640 unless the indictment for such offense is found by a grand jury within five years next after the offense has been done or committed or unless a complaint for such offense is filed before the magistrate within five years next after the offense has been done or committed and a warrant for the arrest of the defendant has been issued.
(8) No person shall be prosecuted for a violation of section 68-1017 if the aggregate value of all funds and other benefits obtained or attempted to be obtained is five hundred dollars or more unless the indictment for such offense is found by a grand jury within five years next after the offense has been done or committed or unless a complaint for such offense is filed before the magistrate within five years next after the offense has been done or committed and a warrant for the arrest of the defendant has been issued.
(9) No person shall be prosecuted for knowing and intentional abuse, neglect, or exploitation of a vulnerable adult or senior adult under section 28-386 unless the indictment for such offense is found by a grand jury within six years next after the offense has been done or committed or unless a complaint for such offense is filed before the magistrate within six years next after the offense has been done or committed and a warrant for the arrest of the defendant has been issued.
(10) Except as otherwise provided by law, no person shall be prosecuted for an offense under section 28-717 (a) unless the indictment for such offense is found by a grand jury within one year and six months next after the offense has been committed or within one year and six months next after the child reaches the age of majority, whichever is later, or (b) unless a complaint for such offense is filed before the magistrate within one year and six months next after the offense has been committed or within one year and six months next after the child reaches the age of majority, whichever is later, and a warrant for the arrest of the defendant has been issued.
(11) There shall not be any time limitations for prosecution or punishment for treason, murder, arson, forgery, sexual assault in the first or second degree under section 28-319 or 28-320, sexual assault of a child in the second or third degree under section 28-320.01, incest under section 28-703, sexual assault of a child in the first degree under section 28-319.01, labor trafficking of a minor or sex trafficking of a minor under subsection (1) of section 28-831, or an offense under section 28-1463.03; nor shall there be any time limitations for prosecution or punishment for sexual assault in the third degree under section 28-320 when the victim is under sixteen years of age at the time of the offense.
(12) The time limitations prescribed in this section shall include all inchoate offenses pursuant to the Nebraska Criminal Code and compounding a felony pursuant to section 28-301.
(13) The time limitations prescribed in this section shall not extend to any person fleeing from justice.
(14) When any suit, information, or indictment for any crime or misdemeanor is limited by any statute to be brought or exhibited within any other time than is limited by this section, then the suit, information, or indictment shall be brought or exhibited within the time limited by such statute.
(15) If any suit, information, or indictment is quashed or the proceedings set aside or reversed on writ of error, the time during the pendency of such suit, information, or indictment so quashed, set aside, or reversed shall not be reckoned within this statute so as to bar any new suit, information, or indictment for the same offense.
(16) The changes made to this section by Laws 2004, LB 943, shall apply to offenses committed prior to April 16, 2004, for which the statute of limitations has not expired as of such date and to offenses committed on or after such date.
(17) The changes made to this section by Laws 2005, LB 713, shall apply to offenses committed prior to September 4, 2005, for which the statute of limitations has not expired as of such date and to offenses committed on or after such date.
(18) The changes made to this section by Laws 2009, LB 97, and Laws 2006, LB 1199, shall apply to offenses committed prior to May 21, 2009, for which the statute of limitations has not expired as of such date and to offenses committed on or after such date.
(19) The changes made to this section by Laws 2010, LB809, shall apply to offenses committed prior to July 15, 2010, for which the statute of limitations has not expired as of such date and to offenses committed on or after such date.
(20) The changes made to this section by Laws 2016, LB934, shall apply to offenses committed prior to April 19, 2016, for which the statute of limitations has not expired as of such date and to offenses committed on or after such date.
(21) The changes made to this section by Laws 2019, LB519, shall apply to offenses committed prior to September 1, 2019, for which the statute of limitations has not expired as of such date and to offenses committed on or after such date.
Source:G.S.1873, c. 58, § 256, p. 783; R.S.1913, § 8910; C.S.1922, § 9931; C.S.1929, § 29-110; R.S.1943, § 29-110; Laws 1965, c. 147, § 1, p. 489;
Laws 1989, LB 211, § 1; Laws 1990, LB 1246, § 10; Laws 1993, LB 216, § 10; Laws 2004, LB 943, § 8; Laws 2005, LB 713, § 2; Laws 2006, LB 1199, § 10; Laws 2009, LB97, § 21; Laws 2009, LB155, § 17; Laws 2010, LB809, § 1; Laws 2016, LB934, § 10; Laws 2019, LB519, § 13; Laws 2020, LB881, § 13.
Cross References
Nebraska Criminal Code, see section 28-101.
Securities Act of Nebraska, see section 8-1123.
Annotations
1. Limitation of action
2. Fleeing from justice
1. Limitation of action
A complaint charging the defendant with second-offense driving under the influence was "pending" for statute of limitations purposes during the time period in which the State appealed to the district court and to the Supreme Court the county court's order granting the defendant's motion to quash. State v. Loyd, 275 Neb. 205, 745 N.W.2d 338 (2008).
In order for the tolling provision under subsection (1) of this section to apply, a subsequent indictment, information, or suit must charge the "same offense" as the prior indictment, information, or suit. State v. Loyd, 275 Neb. 205, 745 N.W.2d 338 (2008).
This section is inapplicable to evidence of prior bad acts. State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002).
Pursuant to subsection (1) of this section, postconviction proceedings fall within the ambit of the phrase "proceedings . . . on writ of error". State v. Thieszen, 252 Neb. 208, 560 N.W.2d 800 (1997).
Pursuant to subsection (1) of this section, the words "proceedings . . . set aside . . . on writ of error" mean proceedings set aside on appeal. State v. Thieszen, 252 Neb. 208, 560 N.W.2d 800 (1997).
Chapter 29 applies only to criminal procedure, and therefore, the statute of limitations in this section has no application to civil cases. LaBenz Trucking v. Snyder, 246 Neb. 468, 519 N.W.2d 259 (1994).
Five-year period of limitations became effective August 25, 1989; act became effective 3 months after Legislature adjourned in absence of emergency clause. State v. Hirsch, 245 Neb. 31, 511 N.W.2d 69 (1994).
The 3-year statute of limitations generally applicable to felony prosecutions does not apply to the crime of first degree murder. State v. White, 239 Neb. 554, 477 N.W.2d 24 (1991).
When in a prosecution for murder the statute of limitations bars a conviction for manslaughter, the defendant is not entitled to an instruction for manslaughter as a lesser-included offense of murder unless he or she elects to waive the defense of the statute of limitations. State v. Keithley, 236 Neb. 631, 463 N.W.2d 329 (1990).
Statute does not apply to cases involving termination of parental rights, as they are not criminal in nature. In re Interest of Hollenbeck, 212 Neb. 253, 322 N.W.2d 635 (1982).
The provision for issuance of an arrest warrant, in this section, is not a condition precedent to a prosecution. State v. Eynon, 197 Neb. 734, 250 N.W.2d 658 (1977).
The filing of a felony complaint before a magistrate charging embezzlement and the issuance of an arrest warrant within three years after date of offense tolls the statute of limitations. State v. Donoho, 190 Neb. 593, 210 N.W.2d 851 (1973).
A charge of failing to pay an installment of child support which accrued more than three years earlier was subject to defense of statute of limitations. State v. Journey, 186 Neb. 556, 184 N.W.2d 616 (1971).
Criminal prosecution for violation of statute based on illegal interest of city officer in contract with city must be brought within time prescribed in this section. Arthur v. Trindel, 168 Neb. 429, 96 N.W.2d 208 (1959).
Prosecution for violation of Blue Sky Law was barred by statute of limitations. Jacox v. State, 154 Neb. 416, 48 N.W.2d 390 (1951).
Three-year period of limitations does not apply to prosecutions for murder. Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124 (1946).
With exception of certain crimes, prosecution is barred unless brought within time limited by this section, and pendency of prosecution in another county does not toll statute. State ex rel. Johnson v. Goble, 136 Neb. 242, 285 N.W. 569 (1939).
Statute does not bar action for criminal contempt though criminal prosecution for the same act would be barred. State ex rel. Wright v. Barlow, 132 Neb. 166, 271 N.W. 282 (1937).
An information charging forgery in language of statute charges a crime that is not barred by the three-year statute of limitations. Flannigan v. State, 127 Neb. 640, 256 N.W. 321 (1934).
Information charging embezzlement continuously over a period commencing over three years previously was good as to part of period within three years of filing information, but conviction reversed because both information and verdict failed to show amount embezzled within statute of limitations. Hogoboom v. State, 120 Neb. 525, 234 N.W. 422, 79 A.L.R. 1171 (1931).
Indictment must be found, or information filed, within time fixed. Gragg v. State, 112 Neb. 732, 201 N.W. 338 (1924); Boughn v. State, 44 Neb. 889, 62 N.W. 1094 (1895).
Prosecution for rape must be commenced in three years, and assault and battery in one year. Kramer v. Weigand, 91 Neb. 47, 135 N.W. 230 (1912).
Forgery falls within exception in section. State v. Leekins, 81 Neb. 280, 115 N.W. 1080 (1908).
Prosecution for selling intoxicating liquors must be brought within eighteen months. McArthur v. State, 60 Neb. 390, 83 N.W. 196 (1900).
Arrest and preliminary examination arrest running of statute only if magistrate had jurisdiction. State v. Robertson, 55 Neb. 41, 75 N.W. 37 (1898).
Crime of murder is regarded as committed at time fatal blow was struck though death results on subsequent date. Debney v. State, 45 Neb. 856, 64 N.W. 446 (1895).
Acts of first degree sexual assault committed on or before August 24, 1986, were time barred on August 25, 1989, the effective date of the 1989 amendment to this section and, therefore, were not subject to the extended statute of limitations implemented by the amendment. State v. Wiemer, 3 Neb. App. 821, 533 N.W.2d 122 (1995).
While the Legislature has the power to enact retroactive changes in a statute of limitations, it cannot remove a bar or limitation which has already become complete. State v. Hirsch, 1 Neb. App. 1120, 510 N.W.2d 534 (1993).
In habeas corpus proceeding where claim was made that court lacked jurisdiction because prosecution was barred by statute of limitations, adjudication in original prosecution that petitioner tolled statute by fleeing from justice is binding upon petitioner and federal court. Taylor v. O'Grady, 113 F.2d 798 (8th Cir. 1940).
2. Fleeing from justice
The phrase "fleeing from justice" means to leave one's usual abode or to leave the jurisdiction where an offense has been committed, with intent to avoid detection, prosecution, or punishment for some public offense. State v. Thomas, 236 Neb. 84, 459 N.W.2d 204 (1990).
Fleeing from justice contemplates that the accused has departed from his usual place of residence to a place where he cannot be found in the exercise of reasonable diligence by the officers. Emery v. State, 138 Neb. 776, 295 N.W. 417 (1940).
Fleeing from justice means a departure by a person from his usual place of abode, or from the place where he has committed an offense, with intent to avoid detection and prosecution for such public offense. Taylor v. State, 138 Neb. 156, 292 N.W. 233 (1940); Colling v. State, 116 Neb. 308, 217 N.W. 87 (1927).
29-111.
Fines and punishments; how enforced.All fines and punishments provided for in this code shall be enforced by the procedure provided for in this code so far as such procedure extends or can be made applicable.
Source:G.S.1873, c. 58, § 257, p. 783; R.S.1913, § 8911; C.S.1922, § 9932; C.S.1929, § 29-111; R.S.1943, § 29-111.
29-112.
Felon; disqualified as juror or officeholder; warrant of discharge; effect; right to vote.Any person sentenced to be punished for any felony, when the sentence is not reversed or annulled, is incompetent to be a juror or to hold any office of honor, trust, or profit within this state, unless such person receives from the Board of Pardons of this state a warrant of discharge, in which case such person shall be restored to such civil rights and privileges as enumerated or limited by the Board of Pardons. The warrant of discharge shall not release such person from the costs of conviction unless otherwise ordered by the Board of Pardons.
Any person sentenced to be punished for any felony, when the sentence is not reversed or annulled, is not qualified to vote until such person has completed the sentence, including any parole term. The disqualification is automatically removed at such time.
Source:G.S.1873, c. 58, § 258, p. 783; R.S.1913, § 8912; Laws 1919, c. 56, § 1, p. 160; C.S.1922, § 9933; C.S.1929, § 29-112; R.S.1943, § 29-112; Laws 1951, c. 86, § 1, p. 249; Laws 1959, c. 117, § 1, p. 448;
Laws 2002, LB 1054, § 3; Laws 2005, LB 53, § 1; Laws 2024, LB20, § 1. Effective Date: July 19, 2024
Cross References
Constitutional provisions:
Board of Pardons, see Article IV, section 13, Constitution of Nebraska.
Disqualification from holding office, see Article XV, sections 1 and 2, Constitution of Nebraska.
Disqualification from voting, see Article VI, section 2, Constitution of Nebraska.
Disqualification from voting, see section 32-313.
Pardons and paroles, see sections 29-2246 et seq., 83-188 et seq., and 83-1,126 et seq.
Annotations
The purpose of this section, as evident from its plain language, is to provide the mechanism by which a felon's right to vote is restored. Ways v. Shively, 264 Neb. 250, 646 N.W.2d 621 (2002).
Conviction does not deprive person of other or different civil rights than those specifically named. Bosteder v. Duling, 115 Neb. 557, 213 N.W. 809 (1927).
Objection that juror is disqualified may be waived. Turley v. State, 74 Neb. 471, 104 N.W. 934 (1905).
Information requested on questionnaire sent to prospective jurors was proper. Beatrice Foods Co. v. United States, 312 F.2d 29 (8th Cir. 1963).
29-112.01.
Restoration of civil rights; felon; procedure.Any person sentenced to be punished for any felony, when the sentence is other than confinement in a Department of Correctional Services adult correctional facility, shall be restored to such civil rights as enumerated or limited by the Board of Pardons upon receipt from the Board of Pardons of a warrant of discharge, which shall be issued by such board upon receiving from the sentencing court a certificate showing satisfaction of the judgment and sentence entered against such person.
29-113.
Felon of other states; disqualified as juror or officeholder; right to vote.Any person who has been convicted of a felony under the laws of any other state shall be deemed incompetent to be a juror or to hold any office of honor, trust, or profit within this state unless such person has been restored to civil rights under the laws of the state in which the felony was committed.
Any person who has been convicted of a felony under the laws of any other state is not qualified to vote until such person has completed his or her sentence, including any parole term.
Source:G.S.1873, c. 58, § 259, p. 783; R.S.1913, § 8913; C.S.1922, § 9934; C.S.1929, § 29-113; R.S.1943, § 29-113; Laws 1951, c. 86, § 2, p. 249; Laws 1969, c. 236, § 1, p. 871;
Laws 1993, LB 31, § 4; Laws 2002, LB 1054, § 5; Laws 2005, LB 53, § 2; Laws 2024, LB20, § 2. Effective Date: July 19, 2024
29-114.
Repealed. Laws 1971, LB 187, § 1.
29-115.
Suppression of statement by defendant; filing of motion; when made; failure to object before trial; effect; exceptions; effect.Any person aggrieved by a statement taken from him or her which is not a voluntary statement, or any statement which he or she believes was taken from him or her in violation of the fifth or sixth amendments of the Constitution of the United States, may move for suppression of such statement for use as evidence against him or her. The suppression motion shall be filed in the district court where a felony is charged and may be made at any time after the information or indictment is filed, and must be filed at least ten days before trial, unless otherwise permitted by the court for good cause shown. When the charge is other than a felony, the motion shall be filed in the court where the complaint is pending, and must be filed at least ten days before trial or at the time of the plea to the complaint, whichever is later, unless otherwise permitted by the court for good cause shown. Unless claims of a statement being involuntary or taken in violation of the fifth or sixth amendments of the Constitution of the United States are raised by motion before trial as provided in this section, all objections to the use of such statements as evidence on these grounds shall be deemed waived, except that the court may entertain such motions to suppress after the commencement of trial when the defendant is surprised by the introduction of such statements by the state, and also the court in its discretion may entertain motions to suppress such statements when the defendant was not aware of the grounds for any such motion before the commencement of trial, or in such situations as the court deems that justice may require. In the event that the trial court entertains any such motion after the commencement of trial, the defendant shall be deemed to have waived any jeopardy which may have attached. None of the foregoing shall affect the right of the defendant to present the question of the voluntariness of the statement, or the question of whether the proper constitutional safeguards were given to any defendant either in custody or otherwise significantly deprived of his or her liberty, for the consideration of the fact finder at trial.
Annotations
Because this section commits the determination whether to entertain a motion to suppress made after the commencement of trial to the discretion of the trial court, an appellate court reviews such a determination for an abuse of discretion. State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002).
The distinction between a motion to quash and a motion to suppress is not mere form over substance. The filing of a motion to quash clearly notifies the State that the defendant's challenge is to the propriety of the entire proceedings. In contrast to a motion to quash, a motion to suppress seeks to exclude certain evidence from being presented at trial. A motion to suppress, with certain exceptions, must be made in writing. State v. Kanarick, 257 Neb. 358, 598 N.W.2d 430 (1999).
Where none of the exceptions stated in this statute are applicable, failure to file a motion to suppress as required under this section constitutes a waiver to any objection to the statement. State v. Cronin, 227 Neb. 302, 417 N.W.2d 169 (1987).
This section requires that any objection as to the voluntariness of a statement of a defendant in a criminal case be made as a pretrial motion to suppress the statement, and failure to object at this stage results in a waiver of the objection. State v. Warren, 227 Neb. 160, 416 N.W.2d 249 (1987).
29-116.
Suppression of statement by defendant; order granting suppression; review; procedure; appeal.(1) In addition to any other rights of appeal, the state shall have the right to appeal from an order granting a motion for the suppression of statements alleged to be involuntary or in violation of the fifth or sixth amendments of the Constitution of the United States in the manner provided in this section.
(2) If such motion has been granted in the district court, the Attorney General or the county attorney or prosecuting attorney with the consent of the Attorney General may file his or her application with the Clerk of the Supreme Court asking for a summary review of the order granting the motion. The review shall be made by a judge of the Court of Appeals at chambers upon such notice, briefs, and argument as the judge directs, after which such judge shall enter his or her order affirming, reversing, or modifying the order submitted for review, and upon any trial on the general issue thereafter, the parties and the trial court shall be bound by such order. Upon conviction after trial the defendant may on appeal challenge the correctness of the order by the judge.
(3) If such motion has been granted in the county court, the Attorney General or the county attorney or prosecuting attorney may file his or her application with the clerk of the district court in the district in which the motion has been granted asking for a summary review of the order granting the motion. The review shall be made by a judge of the district court upon such notice, briefs, and arguments as the judge directs, after which such judge shall enter his or her order affirming, reversing, or modifying the order submitted for review, and upon any trial on the general issue thereafter the parties and the trial court shall be bound by such order. Upon conviction after trial the defendant may on appeal challenge the correctness of the order by the judge.
Annotations
A defendant's successful motion in the district court to suppress evidence is not finally granted or determined, unless there is no appeal, until a judge of the Court of Appeals has decided the matter under this section. The time from the defendant's filing of such motion until final determination is excluded in the speedy trial calculation. State v. Hayes, 10 Neb. App. 833, 639 N.W.2d 418 (2002).
A trial court may, in its good judgment, correct its pretrial ruling on a motion to suppress statements, even though such a correction results in denial of the State's opportunity to appeal the decision to suppress the evidence. State v. Vaida, 1 Neb. App. 768, 510 N.W.2d 389 (1993).
29-117.
Suppression of statement by defendant; application for review; filing; when.The application for review provided in section 29-116 shall be accompanied by a copy of the order of the trial court granting the motion to suppress and a bill of exceptions containing all of the evidence, including affidavits, considered by the trial court in its ruling on the motion, and so certified by the trial court. The application shall be filed with the Clerk of the Supreme Court, if the trial court is the district court, or with the clerk of the district court, if the trial court is the county court, within such time as may be ordered by the trial court, which in fixing such time shall take into consideration the length of time required to prepare the bill of exceptions, and shall also consider whether the defendant is in jail or whether he or she is on bail, but in no event shall more than thirty days be given in which to file such application.
29-118.
Suppression of statement by defendant; order granting suppression; review; trial court; duties.In making an order granting a motion to suppress a statement, the trial court shall in such order fix a time, not exceeding ten days, in which the county attorney or other prosecuting attorney may file a notice with the clerk of such court of his or her intention to seek a review of the order. Upon the filing of such notice, the trial court shall fix a time in which the application for review shall be filed with the clerk of the appellate court.
29-119.
Plea agreement; terms, defined.For purposes of this section and sections 23-1201, 29-120, and 29-2261, unless the context otherwise requires:
(1) A plea agreement means that as a result of a discussion between the defense counsel and the prosecuting attorney:
(a) A charge is to be dismissed or reduced; or
(b) A defendant, if he or she pleads guilty to a charge, may receive less than the maximum penalty permitted by law; and
(2)(a) Victim means a person who has had a personal confrontation with an offender as a result of a homicide under sections 28-302 to 28-306, a first degree assault under section 28-308, a second degree assault under section 28-309, a third degree assault under section 28-310 when the victim is an intimate partner as defined in section 28-323, a first degree false imprisonment under section 28-314, a first degree sexual assault under section 28-319, a sexual assault of a child in the first degree under section 28-319.01, a second or third degree sexual assault under section 28-320, a sexual assault of a child in the second or third degree under section 28-320.01, domestic assault in the first, second, or third degree under section 28-323, or a robbery under section 28-324. Victim also includes a person who has suffered serious bodily injury as defined in section 28-109 as a result of a motor vehicle accident when the driver was charged with a violation of section 60-6,196 or 60-6,197 or with a violation of a city or village ordinance enacted in conformance with either section.
(b) In the case of a homicide, victim means the nearest surviving relative under the law as provided by section 30-2303 but does not include the alleged perpetrator of the homicide.
(c) In the case of a violation of section 28-813.01, 28-1463.03, 28-1463.04, or 28-1463.05, victim means a person who was a child as defined in section 28-1463.02 and a participant or portrayed observer in the visual depiction of sexually explicit conduct which is the subject of the violation and who has been identified and can be reasonably notified.
(d) In the case of a sexual assault of a child, a possession offense of a visual depiction of sexually explicit conduct, or a distribution offense of a visual depiction of sexually explicit conduct, victim means the child victim and the parents, guardians, or duly appointed legal representative of the child victim but does not include the alleged perpetrator of the crime.
(e) Victim also includes a person who was the victim of a theft under section 28-511, 28-512, 28-513, or 28-517 when (i) the value of the thing involved is five thousand dollars or more and (ii) the victim and perpetrator were intimate partners as defined in section 28-323.
(f) Victim also includes a sexual assault victim as defined in section 29-4309.
Source:Laws 1983, LB 78, § 1; Laws 1990, LB 87, § 2; Laws 1993, LB 370, § 10; Laws 1998, LB 309, § 2; Laws 2004, LB 270, § 3; Laws 2006, LB 1199, § 11; Laws 2010, LB728, § 8; Laws 2018, LB160, § 1; Laws 2019, LB125, § 1; Laws 2020, LB43, § 9.
Annotations
Although the victim's parents, and not the victim's sister, were statutorily-defined "victims" under this section, the court did not abuse its discretion in allowing the sister to read her impact statement at sentencing where the parents were elderly, lived out of state, and did not want to participate in the resentencing. State v. Thieszen, 300 Neb. 112, 912 N.W.2d 696 (2018).
29-120.
Plea agreement; prosecuting attorney; duties.Prior to reaching a plea agreement with defense counsel, a prosecuting attorney, prosecuting a violation of a city or village ordinance enacted in conformance with section 60-6,196 or 60-6,197, shall consult with or make a good faith effort to consult with the victim regarding the content of and reasons for such plea agreement.
29-121.
Transferred to section 43-4903.
29-122.
Criminal responsibility; intoxication;
not a defense; exceptions.A
person who is intoxicated is criminally responsible for his or her conduct.
Intoxication is not a defense to any criminal offense and shall not be taken
into consideration in determining the existence of a mental state that is
an element of the criminal offense unless the defendant proves, by clear and
convincing evidence, that he or she did not (1) know that it was an intoxicating
substance when he or she ingested, inhaled, injected, or absorbed the substance
causing the intoxication or (2) ingest, inhale, inject, or absorb the intoxicating
substance voluntarily.
Annotations
Voluntary intoxication is not a defense to any criminal offense and shall not be taken into consideration in determining the existence of a mental state that is an element of the criminal offense. State v. Cheloha, 25 Neb. App. 403, 907 N.W.2d 317 (2018).
29-201.
County judges as magistrates; jurisdiction.All county judges in this state shall have the same and equal powers of jurisdiction in all matters relating to the enforcement of the criminal laws of the state, except as otherwise expressly provided, and the jurisdiction of all such officers as magistrates, for the discharge of the duties and for the exercise of the powers enjoined and conferred by this code, shall extend to all crimes and offenses punishable by the laws of this state, committed within their respective jurisdictions, and for the prevention of crimes and offenses as in this code provided, throughout their respective counties.
Source:G.S.1873, c. 58, § 260, p. 784; R.S.1913, § 8914; C.S.1922, § 9935; C.S.1929, § 29-201; R.S.1943, § 29-201;
Laws 1972, LB 1032, § 162.
29-202.
Repealed. Laws 1972, LB 1032, § 287.
29-203.
District judges and county judges; conservators of the peace; jurisdiction.The judges of the district courts in their respective districts, and the magistrates mentioned in section 29-201 in their respective counties, shall jointly and severally be conservators of the peace within their respective jurisdictions, and shall have full power to enforce or cause to be enforced all laws that now exist or that shall hereafter be made for the prevention and punishment of offenses, or for the preservation and observance of the peace. Judges of the district courts shall have the same powers to require securities for the keeping of the peace and good behavior, and bail for appearance in courts to answer complaints to keep the peace, and for crimes and offenses committed in their respective districts as any of the magistrates aforesaid have in their respective counties.
Source:G.S.1873, c. 58, § 262, p. 784; R.S.1913, § 8916; C.S.1922, § 9937; C.S.1929, § 29-203; R.S.1943, § 29-203.
Annotations
District judges have all of the required jurisdiction of magistrates. Otte v. State, 172 Neb. 110, 108 N.W.2d 737 (1961).
District judge may hold preliminary hearing. Callies v. State, 157 Neb. 640, 61 N.W.2d 370 (1953).
District judge may sit as examining magistrate. Cohoe v. State, 79 Neb. 811, 113 N.W. 532 (1907); State v. Dennison, 60 Neb. 192, 82 N.W. 628 (1900).
Preliminary hearing is in no sense a trial. Van Buren v. State, 65 Neb. 223, 91 N.W. 201 (1902).
29-204.
Repealed. Laws 1988, LB 1030, § 53.
29-205.
Fugitive; apprehension and arrest.If any person or persons who may be charged with the commission of a crime or offense made punishable by the laws of this state shall abscond or remove from the county in which such crime or offense is charged to have been committed, it shall be lawful for any sheriff or other person to apprehend the person or persons so charged, remove him, her, or them to the county in which the alleged crime may be said to have been committed, and deliver such person or persons to any magistrate in such county, who shall cause the person or persons so delivered to be dealt with as the law may direct.
Source:G.S.1873, c. 58, § 264, p. 785; R.S.1913, § 8918; C.S.1922, § 9939; C.S.1929, § 29-205; R.S.1943, § 29-205;
Laws 1988, LB 1030, § 22.
Annotations
It is mandatory duty of sheriff, where warrant is placed in his hands issued in another county, to apprehend the accused and remove him to the county where the crime is charged. State ex rel. Johnson v. Goble, 136 Neb. 242, 285 N.W. 569 (1939).
A law enforcement officer investigating a crime has the authority to detain a suspect with an outstanding arrest warrant outside the law enforcement officer's primary jurisdiction. State v. Hill, 12 Neb. App. 492, 677 N.W.2d 525 (2004).
29-206.
Repealed. Laws 1972, LB 1032, § 287.
29-207.
Repealed. Laws 1972, LB 1032, § 287.
29-208.
Criminal identification; agents; power of Governor to appoint.The Governor is hereby authorized to appoint such agents as may be necessary for carrying out the provisions of sections 29-208 to 29-210.
Source:Laws 1921, c. 207, § 1, p. 739; C.S.1922, § 9942; C.S.1929, § 29-208; R.S.1943, § 29-208.
29-209.
Criminal identification; fingerprints and descriptions; duties of law enforcement officers and agencies.It is hereby made the duty of the sheriffs of the several counties of the State of Nebraska, the chiefs of police of incorporated cities therein, marshals of incorporated cities and towns therein, and agencies of state government having powers of arrest to furnish the Nebraska State Patrol two copies of fingerprints on forms provided by the Nebraska State Patrol and the Federal Bureau of Investigation, and descriptions of all persons who are arrested by them (1) for any felony or (2) as felony fugitives from the criminal justice system of another jurisdiction. This section is not intended to include violators of city ordinances or of persons arrested for other trifling offenses. The Nebraska State Patrol shall in all appropriate cases forward one copy of such fingerprints and other necessary identifying data and information to the system maintained by the Federal Bureau of Investigation.
Source:Laws 1921, c. 207, § 2, p. 739; C.S.1922, § 9943; C.S.1929, § 29-209; R.S.1943, § 29-209;
Laws 1978, LB 713, § 16.
Cross References
Security, Privacy, and Dissemination of Criminal History Information Act, see section 29-3501.
29-210.
Criminal identification and information; Nebraska State Patrol; duties.The Nebraska State Patrol is hereby authorized (1) to keep a complete record of all reports filed of all personal property stolen, lost, found, pledged or pawned, in any city or county of this state; (2) to provide for the installation of a proper system and file, and cause to be filed therein cards containing an outline of the methods of operation employed by criminals; (3) to use any system of identification it deems advisable, or that may be adopted in any of the penal institutions of the state; (4) to keep a record consisting of duplicates of measurements, processes, operations, plates, photographs, measurements and descriptions of all persons confined in penal institutions of this state; (5) to procure and maintain, so far as practicable, plates, photographs, descriptions and information concerning all persons who shall hereafter be convicted of felony or imprisoned for violating the military, naval or criminal laws of the United States, and of well-known and habitual criminals from whatever source procurable; (6) to furnish any criminal justice agency with any information, material, records, or means of identification which may properly be disseminated and that it may desire in the proper administration of criminal justice; (7) to upgrade, when feasible, the existing law enforcement communications network; and (8) to establish and maintain an improved system or systems by which relevant information may be collected, coordinated, and made readily available to serve qualified persons or agencies concerned with the administration of criminal justice.
Source:Laws 1921, c. 207, § 3, p. 739; C.S.1922, § 9944; C.S.1929, § 29-210; R.S.1943, § 29-210;
Laws 1978, LB 713, § 17.
Cross References
Security, Privacy, and Dissemination of Criminal History Information Act, see section 29-3501.
29-211.
Motor vehicle pursuit; law enforcement agency; adopt policy; contents; training.(1) Each law enforcement agency within the State of Nebraska shall adopt and implement a written policy regarding the pursuit of motor vehicles. Such policy shall contain at least the following elements:
(a) Standards which describe when a pursuit may be initiated, taking into consideration the nature and severity of the offense involved;
(b) Standards which describe when a pursuit is to be discontinued, giving special attention to (i) the degree of danger presented to the general public and the pursuing officer and (ii) the probability of later apprehension of the subject based upon his or her identification;
(c) Procedures governing the operation of pursuits including, but not limited to, the number and types of vehicles which may be used, the method of operation of such vehicles, and the exercise of supervision during pursuits;
(d) Procedures governing pursuits which include other law enforcement agencies or which extend into the jurisdiction of other law enforcement agencies; and
(e) A system of mandatory continued planning and review of training of personnel appropriate and consistent with the policies and jurisdiction of the law enforcement agency regarding the proper handling of pursuits, including, at a minimum, an annual review of the policy with each sworn law enforcement officer and dispatcher.
(2) It shall be the responsibility of each law enforcement agency within the State of Nebraska to ensure that all law enforcement officers who commence employment with such law enforcement agency receive specialized training in pursuit driving at the Nebraska Law Enforcement Training Center or at an equivalent training program approved by the Nebraska Police Standards Advisory Council.
Cross References
Apprehension of persons, see section 29-215.
Liability for damages to third parties, see sections 13-911 and 81-8,215.01.
Nebraska Rules of the Road, emergency vehicle privileges, see section 60-6,114.
Uniform Act on Fresh Pursuit, see section 29-421.
29-212.
Missing Persons Information Clearinghouse; terms, defined.For purposes of sections 29-212 to 29-214.01, unless the context otherwise requires:
(1) Missing person means a person who has been reported as missing to a law enforcement agency; and
(2) Missing Persons Information Clearinghouse means the repository established within the Nebraska State Patrol pursuant to section 29-214.01.
29-213.
Missing Persons Information Clearinghouse; missing person report; law enforcement agency; duties.When a report of a missing person has been received by a law enforcement agency having jurisdiction, the agency shall notify:
(1) On-duty personnel of the agency, as soon as practicable, through internal means and over the appropriate police radio network;
(2) All law enforcement agencies considered to be involved by the law enforcement agency having jurisdiction;
(3) All law enforcement agencies to which the person filing the report requests that the information be sent, if the request is reasonable in light of the information contained in the report;
(4) All law enforcement agencies requesting the information; and
(5) The Missing Persons Information Clearinghouse.
29-214.
Missing Persons Information Clearinghouse; missing person report; unemancipated minor; law enforcement agency; duties.(1) If a report of a missing person involves an unemancipated minor, the law enforcement agency shall immediately transmit the proper information for inclusion in the National Crime Information Center computer and the Missing Persons Information Clearinghouse.
(2) If a report of a missing person involves an unemancipated minor, a law enforcement agency shall not prevent an immediate active investigation on the basis of an agency rule which specifies an automatic time limitation for a missing person investigation.
Cross References
Missing Children Identification Act, see section 43-2001 et seq.
29-214.01.
Missing Persons Information Clearinghouse; Nebraska State Patrol; powers and duties.(1) The Missing Persons Information Clearinghouse is established within the Nebraska State Patrol. The Nebraska State Patrol shall provide for the administration of the clearinghouse and may adopt and promulgate rules and regulations to carry out the provisions of this section.
(2) The Missing Persons Information Clearinghouse shall be used by all law enforcement agencies in the state as a central repository for information on missing persons. Such information shall be provided on a uniform form prescribed by the Nebraska State Patrol.
(3) In connection with the Missing Persons Information Clearinghouse, the Nebraska State Patrol shall:
(a) Collect, process, maintain, and disseminate information about missing persons in Nebraska through hard copy or electronic means;
(b) Develop training programs for law enforcement agencies concerning the appropriate procedures to report missing persons to the clearinghouse;
(c) Cooperate with other states and the National Crime Information Center in the exchange of information on missing persons;
(d) Maintain a statewide, toll-free telephone line, twenty-four hours a day, to receive and disseminate information related to missing persons;
(e) Maintain an Internet website accessible to law enforcement agencies and to the public with information on missing persons and with information about the resources available through the clearinghouse. Nothing in this section shall prevent the Nebraska State Patrol from establishing a separate link accessible only to law enforcement agencies for the dissemination and collection of sensitive information as determined by the Nebraska State Patrol;
(f) Develop training programs to assist in the prevention of kidnapping;
(g) Maintain a registry of prevention and education materials and programs regarding missing and runaway minors through hard copy or electronic means;
(h) Distribute through hard copy or electronic means monthly missing persons bulletins to local law enforcement agencies and to other interested individuals, agencies, and media outlets which request such information. The bulletins shall contain information on missing persons in Nebraska, including names, photographs or other images, if available, descriptions of missing persons, the law enforcement agencies or persons to contact with information regarding missing persons, and the names of persons reported missing whose locations have been determined and confirmed;
(i) Produce, update at least weekly, and distribute, through hard copy or electronic means, press releases about missing persons to media outlets which request missing person information, containing the same or similar information contained in the monthly missing persons bulletin;
(j) Compile statistics relating to the incidence of missing persons within Nebraska; and
(k) Encourage and seek both financial and in-kind support from private individuals and organizations to assist in carrying out the provisions of this section.
(4) The purpose of the Missing Persons Information Clearinghouse is to serve as a repository. The clearinghouse does not relieve the law enforcement agency having jurisdiction over a missing person case of its investigatory duties and does not automatically involve the Nebraska State Patrol as the primary investigatory agency in such case.
(5) The Missing Persons Information Clearinghouse shall be notified after the location of a missing person has been determined and confirmed. After the location of a missing person has been determined and confirmed, the clearinghouse shall only release information described in subdivision (3)(h) of this section concerning the located person. Other information concerning the history of the missing person case shall be disclosed only to law enforcement agencies of this state and other jurisdictions when necessary for the discharge of official duties, and to the juvenile court in the county of residence of a formerly missing person who is a minor. All information in the clearinghouse relating to a missing person who is an adult shall be purged when the person's location has been determined and confirmed. All information in the clearinghouse relating to a missing person who is a minor shall be purged when the person reaches eighteen years of age and the person's location has been determined and confirmed.
29-215.
Law enforcement officers; jurisdiction; powers; contracts authorized.(1) A law enforcement officer has the power and authority to enforce the laws of this state and of the political subdivision which employs the law enforcement officer or otherwise perform the functions of that office anywhere within his or her primary jurisdiction.
(2) Any law enforcement officer who is within this state, but beyond his or her primary jurisdiction, has the power and authority to enforce the laws of this state or any legal ordinance of any city or incorporated village or otherwise perform the functions of his or her office, including the authority to arrest and detain suspects, as if enforcing the laws or performing the functions within his or her primary jurisdiction in the following cases:
(a) Any such law enforcement officer, if in a fresh attempt to apprehend a person suspected of committing a felony, may follow such person into any other jurisdiction in this state and there arrest and detain such person and return such person to the law enforcement officer's primary jurisdiction;
(b) Any such law enforcement officer, if in a fresh attempt to apprehend a person suspected of committing a misdemeanor or a traffic infraction, may follow such person anywhere in an area within twenty-five miles of the boundaries of the law enforcement officer's primary jurisdiction and there arrest and detain such person and return such person to the law enforcement officer's primary jurisdiction;
(c) Any such law enforcement officer shall have such enforcement and arrest and detention authority when responding to a call in which a local, state, or federal law enforcement officer is in need of assistance. A law enforcement officer in need of assistance shall mean (i) a law enforcement officer whose life is in danger or (ii) a law enforcement officer who needs assistance in making an arrest and the suspect (A) will not be apprehended unless immediately arrested, (B) may cause injury to himself or herself or others or damage to property unless immediately arrested, or (C) may destroy or conceal evidence of the commission of a crime; and
(d) Any municipality or county may, under the provisions of the Interlocal Cooperation Act or the Joint Public Agency Act, enter into a contract with any other municipality or county for law enforcement services or joint law enforcement services. Under such an agreement, law enforcement personnel may have such enforcement authority within the jurisdiction of each of the participating political subdivisions if provided for in the agreement. Unless otherwise provided in the agreement, each participating political subdivision shall provide liability insurance coverage for its own law enforcement personnel as provided in section 13-1802.
(3) When probable cause exists to believe that a person is operating or in the actual physical control of any motor vehicle, motorboat, personal watercraft, or aircraft while under the influence of alcoholic liquor or of any drug or otherwise in violation of section 28-1465, 28-1466, 28-1472, 37-1254.01, 37-1254.02, 60-4,163, 60-4,164, 60-6,196, 60-6,197, 60-6,211.01, or 60-6,211.02, the law enforcement officer has the power and authority to do any of the following or any combination thereof:
(a) Transport such person to a facility outside of the law enforcement officer's primary jurisdiction for appropriate chemical testing of the person;
(b) Administer outside of the law enforcement officer's primary jurisdiction any post-arrest test advisement to the person; or
(c) With respect to such person, perform other procedures or functions outside of the law enforcement officer's primary jurisdiction which are directly and solely related to enforcing the laws that concern a person operating or being in the actual physical control of any motor vehicle, motorboat, personal watercraft, or aircraft while under the influence of alcoholic liquor or of any other drug or otherwise in violation of section 28-1465, 28-1466, 28-1472, 37-1254.01, 37-1254.02, 60-4,163, 60-4,164, 60-6,196, 60-6,197, 60-6,211.01, or 60-6,211.02.
(4) For purposes of this section:
(a) Class I railroad has the same meaning as in section 81-1401;
(b) Law enforcement officer has the same meaning as peace officer as defined in section 49-801 and also includes conservation officers of the Game and Parks Commission and Class I railroad police officers; and
(c) Primary jurisdiction means the geographic area within the territorial limits of the state or political subdivision which employs the law enforcement officer.
Source:Laws 1994, LB 254, § 1; Laws 1999, LB 87, § 68; Laws 2003, LB 17, § 9; Laws 2011, LB667, § 5; Laws 2021, LB51, § 2.
Cross References
Interlocal Cooperation Act, see section 13-801.
Joint Public Agency Act, see section 13-2501.
Motor vehicle pursuit, see section 29-211.
Uniform Act on Fresh Pursuit, see section 29-421.
Annotations
This section is not a venue statute. State v. Warlick, 308 Neb. 656, 956 N.W.2d 269 (2021).
Subsection (2)(c)(ii)(C) of this section does not require that an officer requesting assistance tell the responding officer that he or she fears evidence will be lost; it asks whether the suspect may destroy or conceal evidence of the commission of a crime and whether an officer needs assistance in making an arrest. State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659 (2006).
This section does give certain extrajurisdictional arrest powers to certain law enforcement officers. This section only applies to Nebraska law enforcement officers and does not apply to law enforcement officers who cross state lines. This section does not authorize an out-of-state police officer to arrest a suspect for misdemeanor driving under the influence outside the officer's geographical jurisdiction. State v. Cuny, 257 Neb. 168, 595 N.W.2d 899 (1999).
Subsection (2)(d) of this section authorizes law enforcement to make an arrest outside his or her primary jurisdiction pursuant to an interlocal agreement, but there must be evidence that such an agreement exists and that it actually authorizes authority for the arrest. State v. Ohlrich, 20 Neb. App. 67, 817 N.W.2d 797 (2012).
29-216.
Victim of sex offense; law enforcement officer, prosecuting officer, or government official; prohibited acts.(1) No law enforcement officer, prosecuting officer, or other government official shall ask or require an adult, youth, or child victim of a sex offense as defined under federal, tribal, state, territorial, or local law to submit to a polygraph examination or other truth-telling device as a condition for proceeding with the investigation of such offense.
(2) The refusal of a victim to submit to an examination as described in subsection (1) of this section shall not prevent the investigation of the offense.
29-217.
Victim of certain criminal activity; visa; request for assistance; certifying agency or official; powers and duties.(1) For purposes of this section:
(a) Certifying agency means a state or local law enforcement agency, prosecutor, or other authority that has responsibility for the investigation or prosecution of qualifying criminal activity, as described in 8 C.F.R. 214.14(a)(2);
(b) Certifying official means the head of the certifying agency or any person in a supervisory role who has been specifically designated by the head of the certifying agency to issue U nonimmigrant status certifications on behalf of that agency, as described in 8 C.F.R. 214.14(a)(3);
(c) Form I-914B means Form I-914, Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, of the Department of Homeland Security, United States Citizenship and Immigration Services;
(d) Form I-918B means Form I-918, Supplement B, U Nonimmigrant Status Certification, of the Department of Homeland Security, United States Citizenship and Immigration Services;
(e) Investigation or prosecution has the same meaning as in 8 C.F.R. 214.14;
(f) Law enforcement agency means a state or local law enforcement agency, prosecutor, or other authority that has responsibility for the investigation or prosecution of severe forms of trafficking in persons, as described in 8 C.F.R. 214.11(a);
(g) Qualifying criminal activity has the same meaning as in 8 C.F.R. 214.14;
(h) Victim of qualifying criminal activity has the same meaning as in 8 C.F.R. 214.14;
(i) Victim of a severe form of trafficking in persons has the same meaning as in 8 C.F.R. 214.11; and
(j) All references to federal statutes and regulations refer to such statutes and regulations as they existed on January 1, 2020.
(2)(a) On request from an individual whom a law enforcement agency reasonably believes to be a victim of a severe form of trafficking in persons, for purposes of a nonimmigrant T visa, pursuant to the criteria in 8 U.S.C. 1101(a)(15)(T)(i)(I) and (III), a law enforcement agency, no later than ninety business days after receiving the request:
(i) Shall complete, sign, and return to the individual the Form I-914B; and
(ii) May submit a written request to an appropriate federal law enforcement officer asking such officer to file an application for continued presence pursuant to 22 U.S.C. 7105(c)(3).
(b) If the law enforcement agency determines that an individual does not meet the requirements of the law enforcement agency for completion of a Form I-914B, the law enforcement agency shall, no later than ninety business days after receiving the request, inform the individual of the reason and that the individual may make another request with additional evidence or documentation to satisfy such requirements. The law enforcement agency shall permit the individual to make such additional request.
(3)(a) On request from an individual whom a certifying agency reasonably believes to be a victim of qualifying criminal activity, for purposes of a nonimmigrant U visa, pursuant to the certification criteria in 8 U.S.C. 1101(a)(15)(U)(i)(II) to (IV) and (iii), a certifying official in the certifying agency, no later than ninety business days after receiving the request, shall complete, sign, and return to the individual the Form I-918B.
(b) For purposes of determining helpfulness pursuant to 8 U.S.C. 1101(a)(15)(U)(i)(III), an individual shall be considered helpful if, since the initiation of cooperation, the individual has not unreasonably refused to cooperate or failed to provide information and assistance reasonably requested by law enforcement or the prosecutor.
(c) If the certifying official determines that an individual does not meet the requirements of the certifying agency for completion of a Form I-918B, the certifying official shall, no later than ninety business days after receiving the request, inform the individual of the reason and that the individual may make another request with additional evidence or documentation to satisfy such requirements. The certifying official shall permit the individual to make such additional request.
(4) An investigation, the filing of charges, a prosecution, or a conviction are not required for an individual to request and obtain the signed and completed Form I-914B or Form I-918B from a law enforcement agency or certifying official.
(5) It is the exclusive responsibility of the federal immigration authorities to determine whether a person is eligible for a T or U visa. Completion of a Form I-914B or Form I-918B by a law enforcement agency or certifying official only serves to verify information regarding certain criteria considered by the federal government in granting such visas.
(6) A law enforcement agency, certifying agency, or certifying official has the discretion to revoke, disavow, or withdraw a previous completion of a Form I-914B or Form I-918B at any time after initial completion, as provided in 8 C.F.R. 214.11(d)(3)(ii) and 8 C.F.R. 214.14(h)(2)(i)(A).
(7) A law enforcement agency or certifying agency that receives a request under this section shall maintain an internal record of such request, including whether such request was granted or denied and, if denied, the reasons for such denial. Such record shall be maintained for at least three years from completion or denial of the request.
29-301.
Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.
29-302.
Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.
29-302.01.
Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.
29-302.02.
Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.
29-302.03.
Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.
29-303.
Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.
29-304.
Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.
29-305.
Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.
29-306.
Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.
29-307.
Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.
29-308.
Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.
29-309.
Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.
29-310.
Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.
29-311.
Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.
29-312.
Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.
29-313.
Repealed. Laws 1972, LB 1333, § 1.
29-314.
Repealed. Laws 1972, LB 1333, § 1.
29-315.
Repealed. Laws 1972, LB 1333, § 1.
29-316.
Repealed. Laws 1972, LB 1333, § 1.
29-401.
Law violators;
arrest by sheriff or other peace officer; juvenile under eighteen years; requirements.Every sheriff, deputy sheriff, marshal, deputy marshal, security
guard, police officer, or peace officer as defined in subdivision (15) of
section 49-801 shall arrest and detain any person found violating any law
of this state or any legal ordinance of any city or incorporated village until
a legal warrant can be obtained, except that (1) any such law enforcement
officer taking a juvenile under the age of eighteen years into his or her
custody for any violation herein defined shall proceed as set forth in sections 43-248, 43-248.01, 43-250, 43-251, 43-251.01, and 43-253 and (2) the court
in which the juvenile is to appear shall not accept a plea from the juvenile
until finding that the parents of the juvenile have been notified or that
reasonable efforts to notify such parents have been made as provided in section 43-250.
Source:G.S.1873, c. 58, § 283, p. 789; R.S.1913, § 8937; C.S.1922, § 9961; C.S.1929, § 29-401; R.S.1943, § 29-401; Laws 1967, c. 175, § 1, p. 490;
Laws 1972, LB 1403, § 1; Laws 1981, LB 346, § 86;
Laws 1988, LB 1030, § 23; Laws 1994, LB 451, § 1; Laws 2009, LB63, § 22; Laws 2010, LB771, § 14.
Annotations
The finding required by subsection (2) of this section, that the parents of a child under the age of 18 years have been notified of the child's arrest or that reasonable efforts to notify have been made, is not jurisdictional. State v. Taylor, 234 Neb. 18, 448 N.W.2d 920 (1989).
An arrest may not be used as a pretext to search for evidence. A pretext arrest is one where the arrest is only a sham, a front being used as an excuse for making a search. The determination of whether an arrest is pretextual is a question of fact for the trial court. This court will not reverse a trial court's finding on this question unless the finding is clearly erroneous. State v. Vann, 230 Neb. 601, 432 N.W.2d 810 (1988).
Firing of shots at tires of speeding automobile was justified in making arrest. Breese v. Newman, 179 Neb. 878, 140 N.W.2d 805 (1966).
Arrest of person who fled from police officers was justified under facts. Sperry v. Greiner, 175 Neb. 524, 122 N.W.2d 463 (1963).
Jury was properly instructed as to the duties of sheriff to arrest and detain under this section. O'Dell v. Goodsell, 152 Neb. 290, 41 N.W.2d 123 (1950).
Mandamus will lie to compel city officers to use summary powers to prevent violations of law. Moores v. State ex rel. Dunn, 71 Neb. 522, 99 N.W. 249 (1904).
Arrest and detention without warrant by marshal was legal. Fry v. Kaessner, 48 Neb. 133, 66 N.W. 1126 (1896).
29-402.
Arrest by person not an officer.Any person not an officer may, without warrant, arrest any person, if a petit larceny or a felony has been committed, and there is reasonable ground to believe the person arrested guilty of such offense, and may detain him until a legal warrant can be obtained.
Source:G.S.1873, c. 58, § 284, p. 789; R.S.1913, § 8938; C.S.1922, § 9962; C.S.1929, § 29-402; R.S.1943, § 29-402.
Annotations
Evidence seized pursuant to an unlawful citizens arrest may still be admissible in absence of a showing of state action. State v. Houlton, 227 Neb. 215, 416 N.W.2d 588 (1987).
Jury award of five thousand dollars damages sustained against a private citizen who procured the unlawful arrest and detention of plaintiff. Huskinson v. Vanderheiden, 197 Neb. 739, 251 N.W.2d 144 (1977).
A police officer may arrest without a warrant when it appears that a felony has been committed and there are reasonable grounds to believe that the person arrested is guilty of the offense. State v. O'Kelly, 175 Neb. 798, 124 N.W.2d 211 (1963).
This section shows intent that provisions of this article apply to felonies and misdemeanors alike. Morrow v. State, 140 Neb. 592, 300 N.W. 843 (1941).
Arrest by private person, with cause to believe party arrested had committed a felony, was legal. Simmerman v. State, 16 Neb. 615, 21 N.W. 387 (1884).
Crime of which person arrested is suspected must have been committed. Kyner v. Laubner, 3 Neb. Unof. 370, 91 N.W. 491 (1902).
Search incident to arrest by Treasury Department agents was proper when agents saw revolver protruding from rear pocket of defendant who was trying to avoid them. United States v. Carter, 523 F.2d 476 (8th Cir. 1975).
Cited in determining that postal inspectors had probable cause to arrest defendant for carrying concealed weapon, a state felony. United States v. Unverzagt, 424 F.2d 396 (8th Cir. 1970).
29-402.01.
Shoplifters; detention; no criminal or civil liability.A peace officer, a merchant, or a merchant's employee who has probable cause for believing that goods held for sale by the merchant have been unlawfully taken by a person and that he can recover them by taking the person into custody may, for the purpose of attempting to effect such recovery, take the person into custody and detain him in a reasonable manner for a reasonable length of time. Such taking into custody and detention by a peace officer, merchant, or merchant's employee shall not render such peace officer, merchant, or merchant's employee criminally or civilly liable for slander, libel, false arrest, false imprisonment, or unlawful detention.
Source:Laws 1957, c. 101, § 1, p. 361; Laws 1963, c. 157, § 1, p. 556.
Annotations
Where the detention of a suspected shoplifter was unreasonable because it continued after the detainers knew their suspicions were groundless and that they had made a mistake, merchant held not protected under this section. Latek v. K Mart Corp., 224 Neb. 807, 401 N.W.2d 503 (1987).
The words "a merchant's employee" do not include a merchant's agent who is not an employee. Bishop v. Bockoven, Inc., 199 Neb. 613, 260 N.W.2d 488 (1977).
A telephone alert between cooperating store managers advising the location of one suspected of previous shoplifting does not constitute a civil conspiracy against the suspect. Dangberg v. Sears Roebuck & Co., 198 Neb. 234, 252 N.W.2d 168 (1977).
Instruction defining arrest in almost verbatim language of 5 Am. Jur. 2d, Arrest, was proper. Schmidt v. Richman Gordman, Inc., 191 Neb. 345, 215 N.W.2d 105 (1974).
29-402.02.
Shoplifters; peace officer; arrest without warrant.Any peace officer may arrest without warrant any person he has probable cause for believing has committed larceny in retail or wholesale establishments.
Source:Laws 1957, c. 101, § 2, p. 361.
29-402.03.
Shoplifters; arrest; merchant or employee not liable.A merchant or a merchant's employee who causes the arrest of a person, as provided for in section 29-402.01, for larceny of goods held for sale shall not be criminally or civilly liable for slander, libel, false arrest, or false imprisonment where the merchant or merchant's employee has probable cause for believing that the person arrested committed larceny of goods held for sale.
Source:Laws 1957, c. 101, § 3, p. 361; Laws 1963, c. 157, § 2, p. 557.
Annotations
Instruction defining arrest in almost verbatim language of 5 Am. Jur. 2d, Arrest, was proper. Schmidt v. Richman Gordman, Inc., 191 Neb. 345, 215 N.W.2d 105 (1974).
29-403.
Warrant; who may issue.Judges of the district court and judges of the county court shall have power to issue process for the apprehension of any person charged with a criminal offense. Clerk magistrates shall have the power to issue such process as provided in section 24-519.
Source:G.S.1873, c. 58, § 285, p. 789; R.S.1913, § 8939; C.S.1922, § 9963; C.S.1929, § 29-403; R.S.1943, § 29-403;
Laws 1972, LB 1032, § 166; Laws 1984, LB 13, § 51; Laws 1986, LB 529, § 28.
29-404.
Complaint; filing;
procedure; warrant; issuance.No complaint shall
be filed with the magistrate unless
such complaint is in writing and signed by the prosecuting attorney or by any other complainant.
If the complainant is a person other than the
prosecuting attorney or a city or village attorney prosecuting the violation
of a municipal ordinance, he or
she shall either have the consent of the prosecuting attorney
or shall furnish to the magistrate a bond with good and sufficient sureties
in such amount as the magistrate shall determine to indemnify the person complained
against for wrongful or malicious prosecution. Whenever a complaint shall
be filed with the magistrate, charging any person with the commission of an
offense against the laws of this state, it shall be the duty of such magistrate
to issue a warrant for the arrest of the person accused, if he or she has reasonable grounds to believe that
the offense charged has been committed. The prosecuting attorney shall consent
to the filing of such complaint if he or
she is in possession of sufficient evidence to warrant the belief
that the person named as defendant in such complaint is guilty of the crime
alleged and can be convicted thereof. The Attorney General shall have the
same power to consent to the filing of complaints as the prosecuting attorneys
have in their respective counties.
Source:G.S.1873, c. 58, § 286, p. 790; R.S.1913, § 8940; C.S.1922, § 9964; C.S.1929, § 29-404; R.S.1943, § 29-404; Laws 1965, c. 148, § 1, p. 490;
Laws 1975, LB 168, § 2; Laws 1977, LB 497, § 1; Laws 2011, LB669, § 21.
Annotations
1. Complaint
2. Immunity
1. Complaint
Complaint charging unlawful operation of freight-carrying motor vehicle was properly filed with justice of the peace. Conkling v. DeLany, 167 Neb. 4, 91 N.W.2d 250 (1958).
Complaint in name of county attorney and verified by deputy county attorney does not confer jurisdiction upon examining magistrate. Morrow v. State, 140 Neb. 592, 300 N.W. 843 (1941).
In making allegation of venue, no particular form is required. Seay v. Shrader, 69 Neb. 245, 95 N.W. 690 (1903).
Complaint is jurisdictional; title is no part of complaint. White v. State, 28 Neb. 341, 44 N.W. 443 (1889).
Complaint charging offense in language of statute is sufficient. State ex rel. Bryant v. Lauver, 26 Neb. 757, 42 N.W. 762 (1889).
Complaint must charge all that is essential to constitute offense. Smith v. State, 21 Neb. 552, 32 N.W. 594 (1887).
Complaint is sufficient if it shows violation of law, and is not vitiated for redundant matter. Ex parte Maule, 19 Neb. 273, 27 N.W. 119 (1886).
Complaint must be sufficiently specific to negative innocence of defendant. Ex parte Eads, 17 Neb. 145, 22 N.W. 352 (1885).
Complaint for selling liquor was good. Brown v. State, 16 Neb. 658, 21 N.W. 454 (1884).
Complaint can be changed only by consent of complainant and by reverification. Lewis v. State, 15 Neb. 89, 17 N.W. 366 (1883).
2. Immunity
Lack of county attorney's consent and failure to furnish bond not jurisdictional defects and convictions cannot be challenged in proceedings for revocation of motor vehicle operator's license. Bohlen v. Kissack, 189 Neb. 262, 202 N.W.2d 171 (1972).
Accused is not immune from arrest even though out on bail pending trial for felony in another county. State ex rel. Johnson v. Goble, 136 Neb. 242, 285 N.W. 569 (1939).
A ministerial officer is not liable for false imprisonment when acting under warrant regular on its face. Kelsey v. Klabunde, 54 Neb. 760, 74 N.W. 1099 (1898).
29-404.01.
Arrest without warrant; supplemental provisions.The provisions of sections 29-404.01 to 29-404.03 shall be supplemental and in addition to any other laws relating to the subject of arrest.
Source:Laws 1967, c. 172, § 1, p. 487.
29-404.02.
Arrest without warrant; when; court appearance.(1) Except as provided in sections 28-311.11 and 42-928, a peace officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed:
(a) A felony;
(b) A misdemeanor, and the officer has reasonable cause to believe that such person either (i) will not be apprehended unless immediately arrested, (ii) may cause injury to himself or herself or others or damage to property unless immediately arrested, (iii) may destroy or conceal evidence of the commission of such misdemeanor, or (iv) has committed a misdemeanor in the presence of the officer; or
(c) One or more of the following acts to one or more household members, whether or not committed in the presence of the peace officer:
(i) Attempting to cause or intentionally and knowingly causing bodily injury with or without a dangerous instrument;
(ii) Placing, by physical menace, another in fear of imminent bodily injury; or
(iii) Engaging in sexual contact or sexual penetration without consent as defined in section 28-318.
(2) An individual arrested without a warrant under this section who remains in custody shall be brought before a court in the county where the arrest occurred for an appearance no later than seven days after such arrest. The appearance may be in person or conducted remotely by means of videoconferencing. The individual shall have the right to appear in person but must agree to waive the seven-day deadline if an in-person appearance within such time is not reasonably practicable.
(3) For purposes of this section:
(a) Household members includes spouses or former spouses, children, persons who are presently residing together or who have resided together in the past, persons who have a child in common whether or not they have been married or have lived together at any time, other persons related by consanguinity or affinity, and persons who are presently involved in a dating relationship with each other or who have been involved in a dating relationship with each other; and
(b) Dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement, but does not include a casual relationship or an ordinary association between persons in a business or social context.
Source:Laws 1967, c. 172, § 2, p. 487;
Laws 1989, LB 330, § 1; Laws 2004, LB 613, § 6; Laws 2017, LB289, § 11; Laws 2024, LB1167, § 1. Effective Date: July 19, 2024
Annotations
1. Felony
2. Misdemeanor
3. Probable cause
4. Miscellaneous
1. Felony
When a law enforcement officer has knowledge based on information reasonably trustworthy under the circumstances, which justifies a prudent belief that a suspect has committed a felony, the officer has probable cause to arrest without a warrant. State v. Robinson, 233 Neb. 729, 448 N.W.2d 386 (1989).
A peace officer may arrest without a warrant if the officer has reasonable cause to believe that the person to be arrested has committed a felony. State v. Horn, 218 Neb. 524, 357 N.W.2d 437 (1984); State v. George, 210 Neb. 786, 317 N.W.2d 76 (1982); State v. Russ, 193 Neb. 308, 226 N.W.2d 775 (1975); State v. Irwin, 191 Neb. 169, 214 N.W.2d 595 (1974); State v. Beasley, 183 Neb. 681, 163 N.W.2d 783 (1969).
2. Misdemeanor
There is probable cause for a warrantless arrest under subsection (2)(c) of this section when an officer has reasonable cause to believe that a misdemeanor has been committed and there is reasonable cause to believe that the evidence may be destroyed or concealed. There is reasonable cause to believe that evidence of intoxication may be destroyed by the metabolic processes of the human body. State v. Halligan, 222 Neb. 866, 387 N.W.2d 698 (1986).
This section authorizes any peace officer to arrest a person who commits a misdemeanor in his presence. State v. Chambers, 207 Neb. 611, 299 N.W.2d 780 (1980).
Police may use binoculars in surveillance, and may arrest without a warrant if there is reasonable cause to believe person has committed misdemeanor in their presence, or has committed misdemeanor, and officers have reasonable cause to believe evidence may be destroyed or concealed. State v. Thompson, 196 Neb. 55, 241 N.W.2d 511 (1976).
Peace officer may arrest without a warrant if he has reasonable cause to believe the person has committed a misdemeanor, that he will not be apprehended or may cause injury to others unless immediately arrested, or may destroy or conceal evidence of the commission of the misdemeanor. State v. McCune, 189 Neb. 165, 201 N.W.2d 852 (1972).
A law enforcement officer may make a lawful arrest without a warrant if there exists a reasonable or probable cause that a person has committed a misdemeanor in the officer's presence. Newton v. Huffman, 10 Neb. App. 390, 632 N.W.2d 344 (2001).
3. Probable cause
The test for probable cause for a warrantless arrest is whether at the moment the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. State v. Jones, 208 Neb. 641, 305 N.W.2d 355 (1981).
Where defendant's erratic driving and subsequent conduct is sufficient to give police probable cause to believe defendant was under the influence of drugs or liquor, it is permissible for the police to pursue defendant into a private dwelling. State v. Penas, 200 Neb. 387, 263 N.W.2d 835 (1978).
Probable cause for arrest and for search and seizure exists where the facts and circumstances within the officers' knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed. State v. Dussault, 193 Neb. 122, 225 N.W.2d 558 (1975).
Probable cause for arrest is to be determined upon objective facts available at time of arrest but there is no requirement that before arrest officer must conduct trial. Morrison v. United States, 491 F.2d 344 (8th Cir. 1974).
Arresting officer not being present at time offense committed and under facts outlined without probable cause for warrantless arrest, evidence seized on search incident to arrest was inadmissible. Turk v. United States, 429 F.2d 1327 (8th Cir. 1970).
4. Miscellaneous
Although the diminishment over time and the ultimate elimination of alcohol in the bloodstream are not willful or intentional, this metabolic process nonetheless constitutes the destruction of evidence such as to provide a basis for effecting a warrantless arrest under the provisions of this section. State v. Wegener, 239 Neb. 946, 479 N.W.2d 783 (1992).
The destruction of evidence through the dissipation of an individual's blood-alcohol level over time is sufficient justification for a warrantless arrest. State v. Marcotte, 233 Neb. 533, 446 N.W.2d 228 (1989).
A warrantless arrest, set in motion on a public road, may not be defeated by means of escaping to a private driveway. State v. Bishop, 224 Neb. 522, 399 N.W.2d 271 (1987).
Officer's conduct in making an arrest under the apparent authority of sections 29-404.02 and 29-411 did not rise to the level of conscious or flagrant misconduct requiring prophylactic exclusion of the defendant's statements. State v. Smith, 209 Neb. 505, 308 N.W.2d 820 (1981).
Warrantless arrest was lawful after officer discovered small bag of marijuana in "plain view" in back seat of car driven by defendant, thereby permitting a search of the car's trunk as a search incident to a lawful arrest. State v. Watts, 209 Neb. 371, 307 N.W.2d 816 (1981).
A warrantless arrest in the hallway outside the apartment of the person arrested, which took place as the person arrested was returning to his apartment, does not violate this section. State v. Tipton, 206 Neb. 731, 294 N.W.2d 869 (1980).
Absent exigent circumstances police may not arrest a person in his home without a warrant. State v. Schlothauer, 206 Neb. 670, 294 N.W.2d 382 (1980).
Absent a contrary showing, an arrest made by Nebraska authorities in a neighboring jurisdiction is presumed governed by laws the same as laws in Nebraska. State v. Wilson, 199 Neb. 765, 261 N.W.2d 376 (1978).
Exigent circumstances in this case justified entry into house to make arrest without a prior disclosure of authority or purpose. State v. Brooks, 189 Neb. 592, 204 N.W.2d 86 (1973).
29-404.03.
Arrest without warrant; reasonable cause; conditions.In determining whether reasonable cause exists to justify an arrest, a law enforcement officer may take into account all facts and circumstances, including those based upon any expert knowledge or experience which the officer in fact possessed, which a prudent officer would judge relevant to the likelihood that a crime has been committed and that the person to be arrested has committed it, and for such purpose the officer may rely on information he receives from any informant whom it is reasonable under the circumstances to credit, whether or not at the time of making the arrest the officer knows the informant's identity.
Source:Laws 1967, c. 172, § 3, p. 487.
Annotations
Police may consider an anonymous tip, along with other facts and circumstances, in determining whether reasonable cause for an arrest exists. Where anonymous tip identified robber as a black male, 6 feet 1 inch tall, 28 years old, with a red eye, known as "Tony," who could be found at a certain address; eyewitnesses identified robber as black male with a red eye; neighbors of specified address described defendant's car; and defendant was a black male, 6 feet 3 inches tall, 29 years old, found at an address where the described car was parked, and named Tony, reasonable cause for arrest existed. State v. Haynie, 239 Neb. 478, 476 N.W.2d 905 (1991).
The totality of the circumstances, including a suspect's attempt to flee from a police officer, established reasonable or probable cause that the suspect was driving while his driver's license was still under suspension, which was a misdemeanor; thus, the officer had probable cause to arrest the suspect. Newton v. Huffman, 10 Neb. App. 390, 632 N.W.2d 344 (2001).
29-405.
Warrant; misdemeanor, complainant; costs.When the offense charged is a misdemeanor, the magistrate, before issuing the warrant, may, at his discretion, require the complainant to acknowledge himself responsible for costs in case the complaint shall be dismissed, which acknowledgment of security for costs shall be entered upon the docket; and the magistrate on dismissal may, if in his opinion the complaint was without probable cause, enter a judgment against such complainant for costs made thereon. In case the magistrate shall consider such complainant wholly irresponsible, such magistrate may, in his discretion, refuse to issue any warrant unless the complainant procure some responsible surety to the satisfaction of such magistrate for the costs in case of such dismissal, and such surety shall acknowledge himself so bound, and the magistrate shall enter it on his docket.
Source:G.S.1873, c. 58, § 287, p. 790; R.S.1913, § 8941; C.S.1922, § 9965; C.S.1929, § 29-405; R.S.1943, § 29-405.
Annotations
Constable cannot demand his fees in advance. Beach v. State ex rel. Emmons, 27 Neb. 398, 43 N.W. 177 (1889).
This section does not apply to complaint by prosecuting officer. State ex rel. Thomas v. McCutcheon, 20 Neb. 304, 30 N.W. 58 (1886).
Costs can be adjudged against complainant only after finding that complaint was without probable cause. Cobbey v. Berger, 13 Neb. 463, 14 N.W. 396 (1882).
29-406.
Warrant; to whom directed; contents.The warrant shall be directed to the sheriff of the county or to the marshal or other police officer of a city or village and, reciting the substance of the accusation, shall command the officer to take the accused and bring him or her before the magistrate or court issuing the warrant or some other magistrate having cognizance of the case to be dealt with according to law. No seal shall be necessary to the validity of the warrant.
Source:G.S.1873, c. 58, § 288, p. 790; R.S.1913, § 8942; C.S.1922, § 9966; C.S.1929, § 29-406; R.S.1943, § 29-406;
Laws 1972, LB 1032, § 167; Laws 1988, LB 1030, § 24.
Annotations
If defendant is in court when complaint is filed, warrant need not issue. Cohoe v. State, 79 Neb. 811, 113 N.W. 532 (1907).
Validity of warrant will not be inquired into by district court when accused has waived preliminary and given bond. Bartley v. State, 53 Neb. 310, 73 N.W. 744 (1898).
Police officer is commanded to take an accused under arrest before a magistrate. Gallegos v. Nebraska, 342 U.S. 55 (1951).
29-407.
Warrant; persons who may execute.The magistrate issuing any such warrant may make an order thereon authorizing a person to be named in such warrant to execute the warrant. The person named in such order may execute such warrant anywhere in the state by apprehending and conveying such offender before the magistrate issuing such warrant or before some other magistrate of the same county. All sheriffs, coroners, and others when required in their respective counties shall aid and assist in the execution of such warrant.
Source:G.S.1873, c. 58, § 289, p. 790; R.S.1913, § 8943; C.S.1922, § 9967; C.S.1929, § 29-407; R.S.1943, § 29-407;
Laws 1988, LB 1030, § 25.
Annotations
Warrant for arrest may be executed within any county in the state. State v. Clingerman, 180 Neb. 344, 142 N.W.2d 765 (1966).
29-408.
Warrant; pursuit and arrest of fugitive.If any person charged as aforesaid with the commission of an offense shall flee from justice, it shall be lawful for the officer, in whose hands the warrant for such person has been placed, to pursue and arrest such person in any other county of this state, and to convey him before the magistrate issuing the warrant, or any other magistrate having cognizance of the case, of the county where such offense was committed.
Source:G.S.1873, c. 58, § 290, p. 790; R.S.1913, § 8944; C.S.1922, § 9968; C.S.1929, § 29-408; R.S.1943, § 29-408.
29-409.
Fugitive; warrant for arrest and return; effect.If any person charged with an offense shall abscond or remove from the county in which such offense is alleged to have been committed, it shall be lawful for any magistrate of the county in which such person may be found to issue a warrant for the arrest and removal of such person to the county in which the offense is alleged to have been committed, to be there delivered to any magistrate of such county, who shall cause the person so delivered to be dealt with according to law; and the warrant so issued shall have the same force and effect as if issued from the county in which such offense is alleged to have been committed.
Source:G.S.1873, c. 58, § 291, p. 791; R.S.1913, § 8945; C.S.1922, § 9969; C.S.1929, § 29-409; R.S.1943, § 29-409.
29-410.
Prisoner; lawful arrest; detention.Any officer or other person having in lawful custody any person accused of an offense for the purpose of bringing him before the proper magistrate or court, may place and detain such prisoner in any county jail of this state for one night or longer, as the occasion may require, so as to answer the purposes of the arrest and custody.
Source:G.S.1873, c. 58, § 292, p. 791; R.S.1913, § 8946; C.S.1922, § 9970; C.S.1929, § 29-410; R.S.1943, § 29-410.
Annotations
The Fourth Amendment to the U.S. Constitution requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).
Jury was properly instructed as to duties of sheriff to arrest and detain under this section. O'Dell v. Goodsell, 152 Neb. 290, 41 N.W.2d 123 (1950).
In action against sheriff for false imprisonment on theory that plaintiff was detained without warrant, evidence was sufficient to establish that plaintiff's arrest and detention were lawful. Martin v. Sanford, 129 Neb. 212, 261 N.W. 136 (1935).
29-411.
Warrants and arrests; powers of officer; direction for executing search warrant; damages.In executing a warrant for the arrest of a person charged with an offense, or a search warrant, or when authorized to make an arrest for a felony without a warrant, the officer may break open any outer or inner door or window of a dwelling house or other building, if, after notice of his office and purpose, he is refused admittance; or without giving notice of his authority and purpose, if the judge or magistrate issuing a search warrant has inserted a direction therein that the officer executing it shall not be required to give such notice, but the political subdivision from which such officer is elected or appointed shall be liable for all damages to the property in gaining admission. The judge or magistrate may so direct only upon proof under oath, to his satisfaction that the property sought may be easily or quickly destroyed or disposed of, or that danger to the life or limb of the officer or another may result, if such notice be given; but this section is not intended to authorize any officer executing a search warrant to enter any house or building not described in the warrant.
Source:G.S.1873, c. 58, § 293, p. 791; R.S.1913, § 8947; C.S.1922, § 9971; C.S.1929, § 29-411; R.S.1943, § 29-411; Laws 1965, c. 149, § 1, p. 491.
Annotations
Given the facts viewed most favorably to the plaintiff, the defendant officer's statement identifying himself as a sheriff's deputy was insufficient to announce his office and purpose: The officer was dressed in jeans, a sweatshirt, and a ball cap, did not show his badge, displayed a weapon upon entry into the home, and failed to produce a copy of the warrant before or after his forced entry into the home. Waldron v. Roark, 292 Neb. 889, 874 N.W.2d 850 (2016).
Following a knock and announcement, the requirement that officers executing a search warrant be "refused admittance," within the meaning of this section, is not restricted to an affirmative refusal, but encompasses circumstances that constitute constructive or reasonably inferred refusal. State v. Kelley, 265 Neb. 563, 658 N.W.2d 279 (2003).
This section codifies the common-law requirement of knocking and announcing when serving a search warrant prior to breaking into a person's dwelling. State v. Kelley, 265 Neb. 563, 658 N.W.2d 279 (2003).
Provisions in warrants allowing no-knock search warrants offend neither U.S. Const. amend. IV nor Neb. Const. art. I, sec. 7. State v. Eary, 235 Neb. 254, 454 N.W.2d 685 (1990).
The provision allowing for no-knock search warrants does not offend the fourth amendment to the Constitution of the United States. State v. Meyer, 209 Neb. 757, 311 N.W.2d 520 (1981).
Officer's conduct in making an arrest under the apparent authority of sections 29-404.02 and 29-411 did not rise to the level of conscious or flagrant misconduct requiring prophylactic exclusion of the defendant's statements. State v. Smith, 209 Neb. 505, 308 N.W.2d 820 (1981).
Where defendant's erratic driving and subsequent conduct is sufficient to give police probable cause to believe defendant was under the influence of drugs or liquor, it is permissible for the police to pursue defendant into a private dwelling. State v. Penas, 200 Neb. 387, 263 N.W.2d 835 (1978).
The exercise of the right hereunder to break into a building is subject to the condition that the officer has probable cause to believe the person sought is within the building. State v. Russ, 193 Neb. 308, 226 N.W.2d 775 (1975).
Where a peace officer has reasonable cause to believe a sale of narcotics is taking place inside a residence, exigent circumstances may justify his entering the residence to make arrest without prior disclosure of his authority and purpose. State v. Brooks, 189 Neb. 592, 204 N.W.2d 86 (1973).
The Fourth Amendment to the United States Constitution prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest except where there are exigent circumstances present. This section noted by the court as being similar to the New York law it found unconstitutional. Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371 (1980).
29-412.
Arrest under a warrant; prisoner to be taken before magistrate; return.Whenever any person has been arrested under a warrant as provided in sections 29-401 to 29-411, it shall be the duty of the officer making the arrest to take the person so arrested before the proper magistrate; and the warrant by virtue of which the arrest was made, with the proper return endorsed thereon and signed by the officer, shall be delivered to such magistrate.
Source:G.S.1873, c. 58, § 294, p. 791; R.S.1913, § 8948; C.S.1922, § 9972; C.S.1929, § 29-412; R.S.1943, § 29-412.
29-413.
Offense committed in view of magistrate; arrest; when authorized; detention.When any offense is committed in view of any magistrate, he or she may, by verbal direction to any sheriff, marshal, or other proper officer or, if no such officer is present, then to any citizen, cause the offender to be arrested and kept in custody for the space of one hour unless he or she shall sooner be taken from such custody by virtue of a warrant issued on complaint under oath. A person so arrested shall not be confined in jail nor put upon trial until arrested by virtue of such a warrant.
Source:G.S.1873, c. 58, § 295, p. 791; R.S.1913, § 8949; C.S.1922, § 9973; C.S.1929, § 29-413; R.S.1943, § 29-413;
Laws 1988, LB 1030, § 26.
29-414.
Rewards for conviction of felons; powers of county boards; limitation on amount.The county boards of the several counties in this state are hereby authorized, when they deem the same expedient, to offer such rewards as in their judgment the nature of the case may require for the detection or apprehension of any person charged with or convicted of a felony, and pay the same, together with all necessary expenses, not otherwise provided by law, incurred in making such detection or apprehension, out of the county treasury; Provided, in no case shall the amount paid out for expense exceed the sum of three hundred dollars.
Source:G.S.1873, c. 58, § 296, p. 791; Laws 1907, c. 175, § 1, p. 507; R.S.1913, § 8950; C.S.1922, § 9974; C.S.1929, § 29-414; R.S.1943, § 29-414.
Annotations
This section does not authorize payment of reward until conviction. Anderson v. Pierce County, 40 Neb. 481, 58 N.W. 955 (1894).
29-415.
Rewards for capture and conviction of horse and auto thieves; powers of sheriffs; limitation on amount.The sheriffs of the several counties within this state are hereby authorized to offer and pay a reward not exceeding the sum of fifty dollars for the capture and conviction of any person charged with stealing a horse or horses, automobile or automobiles, within their respective counties; and the county boards of such counties shall audit the accounts of such sheriffs for money paid out as such rewards, together with all necessary expenses incurred in the apprehension and detention of any such horse thief or automobile thief, and pay the same out of the treasury of their county.
Source:Laws 1879, § 1, p. 181; R.S.1913, § 8951; Laws 1919, c. 139, § 1, p. 317; C.S.1922, § 9975; C.S.1929, § 29-415; R.S.1943, § 29-415.
29-416.
Fresh pursuit; peace officer from another state; authority to make arrest.Any member of a duly organized state, county or municipal peace unit of another state of the United States who enters this state in fresh pursuit, and continues within this state in such fresh pursuit, of a person, in order to arrest him on the ground that he is believed to have committed a felony in such other state, shall have the same authority to arrest and hold such person in custody as has any member of any duly organized state, county or municipal peace unit of this state, to arrest and hold in custody a person on the ground that he is believed to have committed a felony in this state.
Source:Laws 1937, c. 70, § 1, p. 256; C.S.Supp.,1941, § 29-416; R.S.1943, § 29-416.
Annotations
The Nebraska Uniform Act on Fresh Pursuit applies only to officers from another state entering this state; it does not apply to a police officer of a city of the second class seeking to arrest a misdemeanor suspect outside the officer's geographical jurisdiction. State v. Tingle, 239 Neb. 558, 477 N.W.2d 544 (1991).
Fresh pursuit is pursuit instituted immediately and with intent to reclaim or recapture. State v. Goff, 174 Neb. 548, 118 N.W.2d 625 (1962).
29-417.
Fresh pursuit; procedure after arrest.If an arrest is made in this state by an officer of another state in accordance with the provisions of section 29-416, he shall without unnecessary delay take the person arrested before a magistrate of the county in which the arrest was made, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the magistrate determines that the arrest was lawful he shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the Governor of this state. If the magistrate determines that the arrest was unlawful he shall discharge the person arrested.
Source:Laws 1937, c. 70, § 2, p. 256; C.S.Supp.,1941, § 29-417; R.S.1943, § 29-417.
Annotations
This section outlines procedure to be followed after arrest made in fresh pursuit. State v. Goff, 174 Neb. 548, 118 N.W.2d 625 (1962).
29-417.01.
Fresh pursuit; interstate pursuit; liability; personal jurisdiction.(1) A member of a duly organized state, county, or municipal peace unit of another state of the United States who enters this state in fresh pursuit under authority of the Uniform Act on Fresh Pursuit shall be jointly and severally liable, along with the state, county, or municipal peace unit employing the member, for death, injury, or property damage to an innocent third party proximately caused by the action of the member during fresh pursuit.
(2) A member of a duly organized state, county, or municipal peace unit of another state of the United States who enters this state in fresh pursuit under authority of the Uniform Act on Fresh Pursuit shall be deemed to have given his or her consent to be subject to the laws of this state, and such action by the member shall constitute sufficient contact with this state for the exercise of personal jurisdiction over such person, with respect to a cause of action regarding death, injury, or property damage to an innocent third party proximately caused by the actions of the member during fresh pursuit.
(3) Any duly organized state, county, or municipal peace unit of another state of the United States that authorizes its members to enter this state during fresh pursuit under authority of the Uniform Act on Fresh Pursuit shall be deemed to have given its consent to be subject to the laws of this state, and such action by the members shall constitute sufficient contact with this state for the exercise of personal jurisdiction over such peace unit, with respect to a cause of action regarding death, injury, or property damage to an innocent third party proximately caused by the actions of such members during fresh pursuit.
29-418.
Fresh pursuit; section, how construed.Section 29-416 shall not be construed so as to make unlawful any arrest in this state which would otherwise be lawful.
Source:Laws 1937, c. 70, § 3, p. 256; C.S.Supp.,1941, § 29-418; R.S.1943, § 29-418.
29-419.
Fresh pursuit; state, defined.For purposes of the Uniform Act on Fresh Pursuit, the word state shall include the District of Columbia.
29-420.
Fresh pursuit, defined.For purposes of the Uniform Act on Fresh Pursuit, the term fresh pursuit shall include fresh pursuit as defined by the common law and also the pursuit of a person who has committed a felony or who is reasonably suspected of having committed a felony. It shall also include the pursuit of a person suspected of having committed a supposed felony, though no felony has actually been committed, if there is reasonable ground for believing that a felony has been committed. Fresh pursuit shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.
Annotations
In order for search to be valid in connection with fresh pursuit, felony must have been committed in another state. State v. Goff, 174 Neb. 548, 118 N.W.2d 625 (1962).
29-421.
Act, how cited.Sections 29-416 to 29-421 shall be known and may be cited as the Uniform Act on Fresh Pursuit.
29-422.
Citation in lieu of arrest; legislative intent.It is hereby declared to be the policy of the State of Nebraska to issue citations in lieu of arrest or continued custody to the maximum extent consistent with the effective enforcement of the law and the protection of the public. In furtherance of that policy, except as provided in sections 28-311.11, 42-928, and 42-929, any peace officer shall be authorized to issue a citation in lieu of arrest or continued custody for any offense which is a traffic infraction, any other infraction, or a misdemeanor and for any violation of a city or village ordinance. Such authorization shall be carried out in the manner specified in sections 29-422 to 29-429 and 60-684 to 60-686.
Source:Laws 1974, LB 829, § 1; Laws 1978, LB 808, § 6; Laws 1985, LB 19, § 2; Laws 1989, LB 330, § 2; Laws 1993, LB 370, § 12; Laws 2017, LB289, § 12.
29-423.
Citation; Supreme Court; prescribe form; contents.To achieve uniformity, the Supreme Court may prescribe the form of citation. The citation shall include a description of the crime or offense charged, the time and place at which the person cited is to appear, a warning that failure to appear in accordance with the command of the citation is a punishable offense, and such other matter as the court deems appropriate, but shall not include a place for the cited person's social security number. The court may provide that a copy of the citation shall constitute the complaint filed in the trial court.
29-424.
Citation; contents; procedure; complaint; waiver; use of credit card authorized.When a citation is used by a peace officer or when a citation is used by an official or inspector pursuant to section 18-1757, he or she shall enter thereon all required information, including the name and address of the cited person, the offense charged, and the time and place the person cited is to appear in court. Unless the person cited requests an earlier date, the time of appearance shall be at least three days after the issuance of the citation. One copy of the citation shall be delivered to the person cited, and a duplicate thereof shall be signed by such person, giving his or her promise to appear at the time and place stated therein. Such person thereupon shall be released from custody. As soon as practicable, the copy signed by the person cited shall be delivered to the prosecuting attorney.
At least twenty-four hours before the time set for the appearance of the cited person, either the prosecuting attorney or other person authorized by law to issue a complaint for the particular offense shall issue and file a complaint charging such person with an offense or such person shall be released from the obligation to appear as specified. A person cited pursuant to sections 29-422 to 29-429 may waive his or her right to trial. The Supreme Court may prescribe uniform rules for such waivers.
Anyone may use a credit card authorized by the court in which the person is cited as a means of payment of his or her fine and costs.
Source:Laws 1974, LB 829, § 3; Laws 1978, LB 808, § 7; Laws 1985, LB 19, § 3; Laws 1985, LB 326, § 3;
Laws 1988, LB 370, § 5; Laws 1998, LB 109, § 2; Laws 2006, LB 1175, § 4.
Cross References
Traffic infraction, citation, see section 60-684.
Annotations
A police chief's failure to forward, in accordance with this section, to the county attorney a citation charging a city employee with a crime in order to prevent the city employee's employment from being terminated was obstructing government operations as set forth in section 28-901(1). The police chief obstructed or impaired a governmental function by failing to forward the citation to the county attorney, as required by this section, because the action of failing to forward the citation impaired the county attorney's performance of its prosecutorial functions. The police chief did not have discretion to remove the citation of the city employee from the packet of citations to be sent to the county attorney such to conclude that he did not breach this section. State v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850 (2016).
29-425.
Citation; issued, when; service.Citations may also be issued under the following circumstances:
(1) In any case in which the prosecuting officer is convinced that a citation would serve all of the purposes of an arrest warrant; and
(2) Whenever any complaint or information is filed in any court in this state charging a felony, misdemeanor, infraction, or violation of a city or village ordinance when the court is convinced that a citation would serve all of the purposes of the arrest warrant procedure.
The citations provided for in this section may be served in the same manner as an arrest warrant, in the same manner as a summons in a civil action, or may be served by certified mail.
29-426.
Citation; failure to appear; penalty.Any person failing to appear or otherwise comply with the command of a citation shall be guilty of a misdemeanor and shall, upon conviction thereof, be punished by a fine of not more than five hundred dollars, or by imprisonment in the county jail for not more than three months, or by both such fine and imprisonment.
Cross References
Traffic infraction, refusal to sign citation, see section 60-684.
Annotations
One-year probation as sentence for violating this section affirmed. State v. Meints, 223 Neb. 199, 388 N.W.2d 813 (1986).
29-427.
Detention of accused; grounds.Any peace officer having grounds for making an arrest may take the accused into custody or, already having done so, detain him further when the accused fails to identify himself satisfactorily, or refuses to sign the citation, or when the officer has reasonable grounds to believe that (1) the accused will refuse to respond to the citation, (2) such custody is necessary to protect the accused or others when his continued liberty would constitute a risk of immediate harm, (3) such action is necessary in order to carry out legitimate investigative functions, (4) the accused has no ties to the jurisdiction reasonably sufficient to assure his appearance, or (5) the accused has previously failed to appear in response to a citation.
Annotations
An officer may arrest for an infraction if such action is necessary to carry out a legitimate investigative function. State v. Sassen, 240 Neb. 773, 484 N.W.2d 469 (1992).
Any peace officer having grounds for making an arrest may take the accused into custody or, already having done so, detain him further when the accused fails to identify himself satisfactorily or refuses to sign the citation or when the officer has reasonable grounds to believe that such action is necessary in order to carry out legitimate investigative functions. State v. Petersen, 12 Neb. App. 445, 676 N.W.2d 65 (2004).
Except as provided in this section, for any offense classified as an infraction, a citation shall be issued in lieu of arrest or continued custody. State v. Petersen, 12 Neb. App. 445, 676 N.W.2d 65 (2004).
A trooper who did not have grounds to arrest a suspect could not detain the suspect under this section. State v. Scovill, 9 Neb. App. 118, 608 N.W.2d 623 (2000).
29-428.
Sections, how construed.Nothing in sections 29-422 to 29-429 and 60-684 to 60-686 shall be construed to affect the rights, lawful procedures, or responsibilities of law enforcement agencies or peace officers using the citation procedure in lieu of the arrest or warrant procedure.
29-429.
Citation; cited person to medical facility; when.Notwithstanding that a citation is issued, a peace officer is authorized to take a cited person to an appropriate medical facility if he appears mentally or physically unable to care for himself.
29-430.
Citation; social security number prohibited.A citation issued by a law enforcement officer shall not contain the cited person's social security number.
29-431.
Infraction, defined.As used in sections 28-416, 29-422, 29-424, 29-425, 29-431 to 29-434, 48-1231, and 53-173, unless the context otherwise requires, infraction means the violation of any law, ordinance, order, rule, or regulation, not including those related to traffic, which is not otherwise declared to be a misdemeanor or a felony. Infraction includes violations of section 60-6,267 and beginning January 1, 2024, section 60-6,279.
Source:Laws 1978, LB 808, § 1; Laws 1979, LB 534, § 1; Laws 1983, LB 306, § 1; Laws 1993, LB 370, § 14; Laws 2010, LB884, § 1; Laws 2015, LB330, § 1; Laws 2023, LB138, § 3.
29-432.
Infraction; person alleged to have committed; custody; when.Any peace officer may take a person alleged to have committed an infraction into custody if harm is likely to occur to either the individual or society if such person is not taken into custody.
29-433.
Infraction involving controlled substance; person cited for; course of instruction; requirements.A person cited for an infraction pursuant to section 28-416 shall be assigned to attend a course of instruction relating to the effects of the misuse of drugs, including alcohol and controlled substances. Such instruction shall include counseling on the legal, medical, psychological, and social effects of drug use and abuse. Such course shall consist of a minimum of five hours and a maximum of ten hours of instruction and counseling. Upon completion of the assigned course the instructor shall notify the court in writing of such completion and the notification shall be made a part of the record of the citation. Any person failing to complete such course within thirty days after the assignment shall be guilty of an infraction.
29-434.
Drug treatment centers; provide course of instruction.All drug treatment centers shall provide the necessary facilities and programs to carry out the provisions of section 29-433.
29-435.
Infraction; citation issued in lieu of arrest; exception.Except as provided in section 29-427, for any offense classified as an infraction, a citation shall be issued in lieu of arrest or continued custody pursuant to sections 29-422 to 29-429.
Annotations
Except as provided in section 29‑427, for any offense classified as an infraction, a citation shall be issued in lieu of arrest or continued custody. State v. Petersen, 12 Neb. App. 445, 676 N.W.2d 65 (2004).
29-436.
Infraction, penalties.Any person guilty of an infraction when a penalty is not otherwise specified shall: (1) For the first offense be fined not more than one hundred dollars; (2) upon a second conviction for the same infraction within a two-year period be fined not less than one hundred dollars and not more than three hundred dollars; and (3) upon a third or subsequent conviction for the same infraction within a two-year period be fined not less than two hundred dollars and not more than five hundred dollars.
29-437.
Infraction; trial without a jury; constitutional rights.The trial of any person for an infraction shall be by the court without a jury. All other rights provided by the Constitution of the United States made applicable to the states by the Fourteenth Amendment to the Constitution of the United States and the Constitution of the State of Nebraska shall apply to persons charged with an infraction.
29-438.
Infraction; treated as first offense; when.Any person charged with commission of an infraction which was committed more than two years after such person's last conviction for the same infraction shall be charged as though the most recent infraction was a first offense.
29-439.
Domestic assault; arrest; conditions; report required.(1) If a peace officer receives complaints under section 28-323 from two or more opposing persons, the officer shall evaluate each complaint separately to determine who was the predominant aggressor. If the officer determines that one person was the predominant aggressor, the officer need not arrest the other person believed to have committed an offense. In determining whether a person is the predominant aggressor, the officer shall consider, among other things:
(a) Prior complaints under section 28-323;
(b) The relative severity of the injuries inflicted on each person;
(c) The likelihood of future injury to each person; and
(d) Whether one of the persons acted with a justified use of force under sections 28-1406 to 28-1416.
(2) In addition to any other report required, a peace officer who arrests two or more persons with respect to such a complaint shall submit a detailed, written report setting forth the grounds for arresting multiple parties.
29-440.
Domestic assault; weapons; seizure and disposition.(1) Incident to an arrest under section 28-323, a peace officer:
(a) Shall seize all weapons that are alleged to have been involved or threatened to be used; and
(b) May seize any firearm and ammunition in the plain view of the officer or that is discovered pursuant to a search authorized or consented to by the person being searched or in charge of the premises being searched, as necessary for the protection of the officer or any other person.
(2) Weapons seized under this section shall be stored according to the policies and procedures implemented by the seizing law enforcement agency.
(3) Disposition of weapons under this section shall be determined by court order.
29-501.
Repealed. Laws 2007, LB 214, § 5.
29-502.
Repealed. Laws 2007, LB 214, § 5.
29-503.
Repealed. Laws 2007, LB 214, § 5.
29-504.
Felony; speedy preliminary hearing required.When the complaint is for a felony, upon the accused being brought before the magistrate, he shall proceed as soon as may be, in the presence of the accused, to inquire into the complaint.
Source:G.S.1873, c. 58, § 300, p. 793; R.S.1913, § 8955; C.S.1922, § 9979; Laws 1925, c. 101, § 1, p. 290; C.S.1929, § 29-504; R.S.1943, § 29-504;
Laws 1972, LB 1032, § 168; Laws 1973, LB 226, § 16.
Annotations
Pursuant to this section, the accused must be brought before a magistrate as soon as is practical under the existing circumstances. State v. Thomas, 236 Neb. 84, 459 N.W.2d 204 (1990).
A speedy preliminary hearing is a personal right which may be waived. State v. Gau, 182 Neb. 114, 153 N.W.2d 298 (1967); Reinoehl v. State, 62 Neb. 619, 87 N.W. 355 (1901); Latimer v. State, 55 Neb. 609, 76 N.W. 207 (1898).
A defendant charged with a felony must be given a preliminary hearing as soon as the nature and circumstances of the case will permit. State v. O'Kelly, 175 Neb. 798, 124 N.W.2d 211 (1963).
Person charged with felony should be given preliminary hearing as soon as possible. Maher v. State, 144 Neb. 463, 13 N.W.2d 641 (1944).
Complaining witness is not party to action; magistrate is not disqualified by being relative of complaining witness. Ingraham v. State, 82 Neb. 553, 118 N.W. 320 (1908).
Preliminary examination is necessary, in prosecution by information, before defendant can be put on trial, over objections, unless waived. Jahnke v. State, 68 Neb. 154, 94 N.W. 158 (1903), reversed on rehearing, 68 Neb. 181, 104 N.W. 154 (1905).
Charging two offenses in same count does not render proceedings invalid. Sothman v. State, 66 Neb. 302, 92 N.W. 303 (1902).
Plea in abatement is proper method of raising question whether or not preliminary examination was had. Everson v. State, 4 Neb. Unof. 109, 93 N.W. 394 (1903).
29-505.
Witnesses; preliminary hearing; segregation.The magistrate, if requested, or if he sees good cause therefor, shall order that the witnesses on both sides be examined each one separate from all the others, and that the witnesses for may be kept separate from the witnesses against the accused during the examination.
Source:G.S.1873, c. 58, § 301, p. 793; R.S.1913, § 8956; C.S.1922, § 9980; C.S.1929, § 29-505; R.S.1943, § 29-505.
Annotations
Magistrates hearing preliminary examinations are invested with discretion to sequester the witnesses. Chicago, B. & Q. R. R. Co. v. Kellogg, 54 Neb. 138, 74 N.W. 403 (1898).
29-506.
Probable cause finding; effect; accused to be committed or released on bail; conditions; appearance bond.If upon the whole examination, it shall appear that no offense has been committed or that there is no probable cause for holding the accused to answer for the offense, he shall be discharged; but if it shall appear that an offense has been committed and there is probable cause to believe that the person charged has committed the offense, the accused shall be committed to the jail of the county in which the same is to be tried, there to remain until he is discharged by due course of law; Provided, if the offense be bailable, the accused may be released pursuant to Chapter 29, article 9, such release to be conditioned on his appearance before the district court as ordered. When a defendant has executed an appearance bond and made a deposit with the court pursuant to section 29-901, and such appearance bond is continued in force for the defendant's appearance in district court, the appearance bond costs shall be retained by the examining court, and the appearance bond and the balance of the deposit shall be transmitted to the district court.
Source:G.S.1873, c. 58, §§ 302, 303, p. 793; Laws 1905, c. 206, § 1, p. 699; R.S.1913, § 8957; Laws 1915, c. 162, § 1, p. 333; C.S.1922, § 9981; C.S.1929, § 29-506; R.S.1943, § 29-506;
Laws 1975, LB 284, § 1.
Annotations
1. Preliminary hearing
2. Bail
3. Miscellaneous
1. Preliminary hearing
So long as the charge in an amended information is substantially the same as that in the original information, the original preliminary hearing remains effective as to the amended information. State v. Hill, 255 Neb. 173, 583 N.W.2d 20 (1998).
Hereafter the sufficiency of the evidence at a preliminary hearing may be raised only by a plea in abatement filed in the criminal proceeding in the district court. Kruger v. Brainard, 183 Neb. 455, 161 N.W.2d 520 (1968).
A preliminary hearing before a magistrate is not a criminal prosecution or trial. Delay v. Brainard, 182 Neb. 509, 156 N.W.2d 14 (1968).
A preliminary hearing is a procedural safeguard to prevent persons from being detained in custody without probable cause. State v. Sheldon, 179 Neb. 377, 138 N.W.2d 428 (1965).
Preliminary hearing is in no sense a trial of the person accused in regard to his guilt or innocence. Fugate v. Ronin, 167 Neb. 70, 91 N.W.2d 240 (1958).
A finding in a preliminary hearing that there was a possibility that defendant committed the crime charged was not subject to attack by habeas corpus. Cotner v. Solomon, 163 Neb. 619, 80 N.W.2d 587 (1957).
Functional purpose of preliminary hearing is stated. Lingo v. Hann, 161 Neb. 67, 71 N.W.2d 716 (1955).
The holding of an accused person for trial in district court at the conclusion of a preliminary examination gives the court jurisdiction, which is retained until the accused is discharged by due course of law. Dobrusky v. State, 140 Neb. 360, 299 N.W. 360 (1941).
Evidence on preliminary hearing was sufficient to show probable cause. Harmer v. State, 121 Neb. 731, 238 N.W. 356 (1931).
Objection that a preliminary hearing in the form and substance contemplated by the statute had not been held was properly raised by a plea in abatement. Jahnke v. State, 68 Neb. 154, 94 N.W. 158 (1903).
An examination under statute is not a trial or a bar to another examination before another magistrate. In re Garst, 10 Neb. 78, 4 N.W. 511 (1880).
Only purpose of preliminary hearing is to determine whether a crime has been committed, and whether there is probable cause for holding accused to answer. Sigler v. Bird, 354 F.2d 694 (8th Cir. 1966).
At preliminary hearing, magistrate is not authorized to require a defendant to plead guilty or not guilty. Bird v. Sigler, 241 F.Supp. 1007 (D. Neb. 1964).
A preliminary hearing in Nebraska is in no sense a trial of the person accused. Ronzzo v. Sigler, 235 F.Supp. 839 (D. Neb. 1964).
2. Bail
Bail bond on recognizance should be construed with reasonable strictness. State v. Casey, 180 Neb. 888, 146 N.W.2d 370 (1966).
Fact that bail for appearance of defendant in district court required him to appear on first day of first term instead of "forthwith," was not prejudicial error. Paige v. State, 120 Neb. 732, 235 N.W. 91 (1931).
Persons bound or held over to district court at next term on criminal charges should be bound or held over to appear at "the first day of the next jury term" of such court. Harrison v. Cheney, 105 Neb. 821, 182 N.W. 367 (1921).
Surety was liable in suit for forfeiture of bail bond where defendant was charged with violation of National Prohibition Act, and bond was adjudged forfeited before act was repealed. La Grotta v. United States, 77 F.2d 673 (8th Cir. 1935).
Recognizance was construed as requiring appearance forthwith at term then in session. United States v. Mace, 281 F. 635 (8th Cir. 1922).
3. Miscellaneous
A county judge sitting as an examining magistrate has no jurisdiction to dismiss a felony complaint with prejudice. State v. Wilkinson, 219 Neb. 685, 365 N.W.2d 478 (1985).
Sufficiency of evidence to bind accused over may be tested in habeas corpus proceeding. Neudeck v. Buettow, 166 Neb. 649, 90 N.W.2d 254 (1958).
Court has no authority to appoint special bailiff to have custody of witness. Shaw v. Holt County, 88 Neb. 348, 129 N.W. 552 (1911).
29-507.
Felony; witness; release from custody; conditions.A witness against a person accused of a felony shall be ordered released from custody unless the court determines in the exercise of discretion that such release will not reasonably assure that the witness will appear and testify at the trial as required. When a determination to release the witness from custody is made, the court may impose any of the following conditions of release which will reasonably assure the appearance of the witness for trial or, if no single condition gives that assurance, any combination of the following conditions:
(1) Place the witness in the custody of a designated person or organization agreeing to supervise him or her;
(2) Place restrictions on the travel, association, or place of abode of the witness during the period of such release;
(3) Require, at the option of any witness, either of the following:
(a) The execution of an appearance bond in a specified amount and the deposit with the clerk of the court in cash of a sum not to exceed ten percent of the amount of the bond, one hundred percent of such deposit to be returned to the witness upon the performance of the appearance or appearances; or
(b) The execution of a bail bond with such surety or sureties as the court shall deem proper or, in lieu of such surety or sureties, at the option of such witness, a cash deposit of the sum so fixed, conditioned upon his or her appearance before the proper court as a witness, and to appear at such times thereafter as may be ordered by the proper court. If the amount of bail is deemed insufficient by the court before whom the offense is pending, such court may order an increase of such bail and the witness must provide the additional undertaking, written or cash, to secure his or her release. All recognizances shall be in writing and be continuous from term to term until final judgment of the court in the case. Each surety on such recognizance shall be required to justify under oath in a sum twice the amount of such recognizance and give the description of real estate owned by him or her of a value, above encumbrance, equal to the amount of such justification, and shall name all other cases pending in which he or she is a surety. No one shall be accepted as surety on recognizance aggregating a sum in excess of his or her equity in his or her real estate, but such recognizance shall not constitute a lien on such real estate until judgment is entered thereon against such surety; or
(4) Impose any other condition deemed reasonably necessary to assure appearances as required, including a condition requiring that the witness return to custody after specified hours.
Source:G.S.1873, c. 58, § 304, p. 793; R.S.1913, § 8958; C.S.1922, § 9982; C.S.1929, § 29-507; R.S.1943, § 29-507;
Laws 1981, LB 228, § 1.
Annotations
One who is retained in custody as a material witness pursuant to the provisions of this section is not actually employed in attendance on the court during all the time that the individual is in custody. Cochran v. County of Lincoln, 203 Neb. 818, 280 N.W.2d 897 (1979).
Does not limit amount of security magistrate may require, but does limit amount a married woman or minor may pay toward own release. Application of Cochran, 434 F.Supp. 1207 (D. Neb. 1977).
29-508.
Refusal of witness to enter into recognizance or accept conditions; effect.If any witness required to enter into a recognizance or accept specified conditions for release under section 29-507 refuses to comply with such order, the court shall, subject to the conditions and procedure provided in section 29-508.01, commit him or her to jail until he or she complies with such order or is otherwise discharged according to law.
Source:G.S.1873, c. 58, § 305, p. 793; R.S.1913, § 8959; C.S.1922, § 9983; C.S.1929, § 29-508; R.S.1943, § 29-508;
Laws 1981, LB 228, § 2.
29-508.01.
Witness committed to jail; prerequisites; rights; appeal.Before a witness is committed to jail under subdivision (4) of section 29-507 or 29-508, he or she shall:
(1) Receive written notice of the allegations upon which the state relied for its claim of a right to require a recognizance or detention and of the time and place of the hearing on those allegations;
(2) Have a hearing before a judge;
(3) Have the evidence in support of the state's claim disclosed to him or her at a hearing;
(4) Have an opportunity to be heard in person and to present witnesses and documentary evidence;
(5) Have, to the extent practicable, the right to confront and cross-examine witnesses;
(6) Have the right to counsel; and
(7) Be given a written statement by the decisionmaker as to the evidence relied upon and the reasons for the decision made.
A decision to commit a person to jail may be appealed and shall be given priority on the appellate court's calendar.
29-508.02.
Witness committed to jail; receive witness fee.A witness committed to jail under subdivision (4) of section 29-507 or 29-508 shall, in addition to the fee provided under section 33-139, receive an amount equal to the amount a witness receives under section 29-1908 for each day held in custody.
Cross References
Mileage, how computed, see section 81-1176.
Witnesses, compensation of, see section 33-139.
29-509.
Docket; required; record of recognizances; transcript.It shall be the duty of every magistrate in criminal proceedings to keep a docket thereof as in civil cases. All recognizances taken under section 29-506 or 29-507, together with a transcript of the proceedings, where the defendant is held to answer, shall be certified and returned forthwith to the clerk of the court at which the prisoner is to appear. The transcript shall contain an accurate bill of all the costs that have accrued, and the items composing the same.
Source:G.S.1873, c. 58, § 306, p. 794; R.S.1913, § 8960; C.S.1922, § 9984; C.S.1929, § 29-509; R.S.1943, § 29-509;
Laws 2007, LB214, § 3.
Annotations
Jurisdiction of district court over accused, held for trial by examining magistrate, is not terminated by order quashing information. Dobrusky v. State, 140 Neb. 360, 299 N.W. 539 (1941).
29-510.
Finding; offense of a higher grade committed than that charged; power of magistrate.If upon the examination it shall appear to the magistrate that the accused has committed an offense of a higher grade than that charged, he may be held to answer therefor.
Source:G.S.1873, c. 58, § 309, p. 794; R.S.1913, § 8961; C.S.1922, § 9985; C.S.1929, § 29-510; R.S.1943, § 29-510.
29-511.
Repealed. Laws 1987, LB 665, § 3.
29-512.
Repealed. Laws 1987, LB 665, § 3.
29-513.
Repealed. Laws 1953, c. 89, § 1.
29-601.
Repealed. Laws 1972, LB 1032, § 287.
29-602.
Repealed. Laws 1972, LB 1032, § 287.
29-603.
Repealed. Laws 1972, LB 1032, § 287.
29-604.
Repealed. Laws 1972, LB 1032, § 287.
29-605.
Repealed. Laws 1972, LB 1032, § 287.
29-606.
Repealed. Laws 1972, LB 1032, § 287.
29-607.
Repealed. Laws 1972, LB 1032, § 287.
29-608.
Repealed. Laws 1972, LB 1032, § 287.
29-609.
Repealed. Laws 1972, LB 1032, § 287.
29-610.
Repealed. Laws 1972, LB 1032, § 287.
29-610.01.
Subpoena; witness; service; failure to appear; contempt of court.In criminal misdemeanor cases the clerk may issue writs of subpoena to the witness named therein by mailing it to such person by certified mail to the last-known residence of such person or, if such address is unknown, to the last-known business address of such person. The person making such service shall make a return thereof showing the manner and proof of service. If any such witness shall fail to appear at the time and place required by the subpoena, such witness may be deemed to be in contempt of court upon a showing of actual notice.
29-610.02.
Subpoena; witness; failure to appear; penalty.Contempt of court under section 29-610.01 shall be punished by a fine of not less than ten dollars nor more than five hundred dollars or by imprisonment in the county jail not exceeding thirty days, or by both such fine and imprisonment.
29-611.
Appeal; procedure.The defendant shall have the right of appeal from any judgment of a county court pursuant to sections 25-2728 to 25-2737.
Source:G.S.1873, c. 58, § 324, p. 797; R.S.1913, § 8975; C.S.1922, § 9999; Laws 1923, c. 113, § 1, p. 271; C.S.1929, § 29-611; Laws 1937, c. 66, § 1, p. 249; C.S.Supp.,1941, § 29-611; R.S.1943, § 29-611;
Laws 1972, LB 1032, § 169; Laws 1973, LB 6, § 2; Laws 1984, LB 13, § 52; Laws 1986, LB 529, § 29.
29-612.
Repealed. Laws 1986, LB 529, § 58.
29-613.
Repealed. Laws 1986, LB 529, § 58.
29-614.
Repealed. Laws 1986, LB 529, § 58.
29-615.
Offenses not cognizable by county court; procedure.If in the progress of any trial before a county court it shall appear that the defendant ought to be put upon his or her trial for an offense not cognizable before such court, the court shall immediately stop all further proceedings before the court and proceed as in other criminal cases exclusively cognizable before the district court.
Source:G.S.1873, c. 58, § 327, p. 798; R.S.1913, § 8979; C.S.1922, § 10003; C.S.1929, § 29-615; R.S.1943, § 29-615;
Laws 1972, LB 1032, § 172; Laws 1984, LB 13, § 55.
Annotations
Entry upon trial for misdemeanor will not bar subsequent prosecution for felony. Larson v. State, 93 Neb. 242, 140 N.W. 176 (1913).
29-616.
Repealed. Laws 1973, LB 226, § 34.
29-617.
Repealed. Laws 1972, LB 1032, § 287.
29-618.
Repealed. Laws 1972, LB 1032, § 287.
29-619.
Repealed. Laws 1972, LB 1032, § 287.
29-620.
Repealed. Laws 1972, LB 1032, § 287.
29-621.
Repealed. Laws 1972, LB 1032, § 287.
29-622.
Repealed. Laws 1972, LB 1032, § 287.
29-623.
Repealed. Laws 1972, LB 1032, § 287.
29-701.
Repealed. Laws 1963, c. 159, § 31.
29-702.
Repealed. Laws 1963, c. 159, § 31.
29-703.
Repealed. Laws 1963, c. 159, § 31.
29-704.
Repealed. Laws 1963, c. 159, § 31.
29-705.
Repealed. Laws 1963, c. 159, § 31.
29-706.
Repealed. Laws 1963, c. 159, § 31.
29-707.
Repealed. Laws 1963, c. 159, § 31.
29-708.
Repealed. Laws 1963, c. 159, § 31.
29-709.
Repealed. Laws 1963, c. 159, § 31.
29-710.
Repealed. Laws 1963, c. 159, § 31.
29-711.
Repealed. Laws 1963, c. 159, § 31.
29-712.
Repealed. Laws 1963, c. 159, § 31.
29-713.
Repealed. Laws 1963, c. 159, § 31.
29-714.
Repealed. Laws 1963, c. 159, § 31.
29-715.
Repealed. Laws 1963, c. 159, § 31.
29-716.
Repealed. Laws 1963, c. 159, § 31.
29-717.
Repealed. Laws 1963, c. 159, § 31.
29-718.
Repealed. Laws 1963, c. 159, § 31.
29-719.
Repealed. Laws 1963, c. 159, § 31.
29-720.
Repealed. Laws 1963, c. 159, § 31.
29-721.
Repealed. Laws 1963, c. 159, § 31.
29-722.
Repealed. Laws 1963, c. 159, § 31.
29-723.
Repealed. Laws 1963, c. 159, § 31.
29-724.
Repealed. Laws 1963, c. 159, § 31.
29-725.
Repealed. Laws 1963, c. 159, § 31.
29-726.
Repealed. Laws 1963, c. 159, § 31.
29-727.
Repealed. Laws 1963, c. 159, § 31.
29-728.
Repealed. Laws 1963, c. 159, § 31.
29-729.
Terms, defined.Where appearing in sections 29-729 to 29-758, the term Governor includes any person performing the functions of Governor by authority of the law of this state. The term Executive Authority includes the Governor, and any person performing the functions of Governor in a state other than this state, and the term State, referring to a state other than this state, includes any other state or territory, organized or unorganized, of the United States of America.
Source:Laws 1963, c. 159, § 1, p. 558.
Annotations
Alleged violations of Uniform Criminal Extradition Act did not exempt offender from trial and punishment by state. State v. Costello, 199 Neb. 43, 256 N.W.2d 97 (1977).
29-730.
Fugitives from justice; Governor; duty.Subject to the provisions of sections 29-729 to 29-758, the provisions of the Constitution of the United States controlling, and any and all acts of Congress enacted in pursuance thereof, it is the duty of the Governor of this state to have arrested and delivered up to the Executive Authority of any other state of the United States any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state.
Source:Laws 1963, c. 159, § 2, p. 559.
Annotations
A misstatement as to a petitioner's status as a fugitive in the extradition documents did not afford petitioner his right under the Uniform Criminal Extradition Act to have the question of whether he should be extradited from the asylum state properly determined by the governor of that state and, therefore, requires that he be dismissed from custody. Koenig v. Poskochil, 238 Neb. 118, 469 N.W.2d 523 (1991).
Allegation of delayed trial by the demanding state held invalid reason for refusing extradition. Wise v. State, 197 Neb. 831, 251 N.W.2d 373 (1977).
Where one is arrested on demand for extradition, he is not entitled to discharge when demanding state fails to assume custody within thirty days when delay is due to proceedings instituted by him. Prettyman v. Karnopp, 192 Neb. 451, 222 N.W.2d 362 (1974).
29-731.
Form of demand.No demand for the extradition of a person charged with crime in another state shall be recognized by the Governor unless in writing alleging, except in cases arising under section 29-734, that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the Executive Authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the Executive Authority making the demand.
Source:Laws 1963, c. 159, § 3, p. 559.
Annotations
A demand for extradition is sufficient if it includes a copy of a judgment of conviction or sentence, together with a statement by the executive authority of the demanding state that the person claimed has broken the terms of parole. Singleton and Anthony v. Adams, 207 Neb. 293, 298 N.W.2d 369 (1980).
Where extradition with accompanying papers referred to annexed and authenticated therein together meet requirements of this section, that is sufficient. Austin v. Brumbaugh, 186 Neb. 815, 186 N.W.2d 723 (1971).
29-732.
Governor; order investigation.When a demand shall be made upon the Governor of this state by the Executive Authority of another state for the surrender of a person so charged with crime, the Governor may call upon the Attorney General or any prosecuting officer in this state to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he ought to be surrendered.
Source:Laws 1963, c. 159, § 4, p. 559.
29-733.
Persons imprisoned or waiting trial out of state; left the demanding state involuntarily; extradition.When it is desired to have returned to this state a person charged in this state with a crime, and such person is imprisoned or is held under criminal proceedings then pending against him in another state, the Governor of this state may agree with the Executive Authority of such other state for the extradition of such person before the conclusion of such proceedings or his term of sentence in such other state, upon condition that such person be returned to such other state at the expense of this state as soon as the prosecution in this state is terminated.
The Governor of this state may also surrender on demand of the Executive Authority of any other state any person in this state who is charged in the manner provided in section 29-751 with having violated the laws of the state whose Executive Authority is making the demand, even though such person left the demanding state involuntarily.
Source:Laws 1963, c. 159, § 5, p. 560.
29-734.
Persons not present in demanding state at time of commission of crime; extradition.The Governor of this state may also surrender, on demand of the Executive Authority of any other state, any person in this state charged in such other state in the manner provided in section 29-731 with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose Executive Authority is making the demand, and the provisions of sections 29-729 to 29-758 not otherwise inconsistent, shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.
Source:Laws 1963, c. 159, § 6, p. 560.
Annotations
A misstatement as to a petitioner's status as a fugitive in the extradition documents did not afford petitioner his right under the Uniform Criminal Extradition Act to have the question of whether he should be extradited from the asylum state properly determined by the governor of that state and, therefore, requires that he be dismissed from custody. Koenig v. Poskochil, 238 Neb. 118, 469 N.W.2d 523 (1991).
One who commits an act in one state intentionally resulting in a crime in another state may now be extradited. State of Kansas v. Holeb, 188 Neb. 319, 196 N.W.2d 387 (1972).
29-735.
Warrant of arrest; issuance.If the Governor decides that the demand should be complied with, he shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to any peace officer or other person whom he may think fit to entrust with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issuance.
Source:Laws 1963, c. 159, § 7, p. 560.
29-736.
Warrant of arrest; execution.Such warrant shall authorize the peace officer or other person to whom directed to arrest the accused at any time and any place where he may be found within the state and to command the aid of all peace officers or other persons in the execution of the warrant, and to deliver the accused, subject to the provisions of sections 29-729 to 29-758 to the duly authorized agent of the demanding state.
Source:Laws 1963, c. 159, § 8, p. 561.
29-737.
Arresting officer; authority.Every such peace officer or other person empowered to make the arrest shall have the same authority, in arresting the accused, to command assistance therein, as peace officers have by law in the execution of any criminal process directed to them, with like penalties against those who refuse their assistance.
Source:Laws 1963, c. 159, § 9, p. 561.
29-738.
Rights of accused person; writ of habeas corpus; application.No person arrested upon such warrant shall be delivered over to the agent whom the Executive Authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding state.
Source:Laws 1963, c. 159, § 10, p. 561.
Cross References
Habeas corpus, see Article I, section 8, Constitution of Nebraska, and section 29-2801 et seq.
Annotations
Habeas corpus is not the proper action to challenge the validity of a detainer based upon an untried complaint, where the state filing the detainer has not requested transfer of the prisoner. Wickline v. Gunter, 233 Neb. 878, 448 N.W.2d 584 (1989).
Once the governor of an asylum state has granted extradition, a court of that state, considering release on habeas corpus, can do no more than decide (1) whether the extradition documents on their face are in order, (2) whether the petitioner has been charged with a crime in the demanding state, (3) whether the petitioner is the person named in the request for extradition, and (4) whether the petitioner is a fugitive. Radant v. Vargason, 220 Neb. 116, 368 N.W.2d 483 (1985).
29-739.
Rights of accused person; violation; penalty.Any officer who shall deliver to the agent for extradition of the demanding state a person in his custody under the Governor's warrant, in willful disobedience to section 29-738, shall be guilty of a Class II misdemeanor.
29-740.
Confinement; when necessary; requirements.The officer or persons executing the Governor's warrant of arrest, or the agent of the demanding state to whom the prisoner may have been delivered may, when necessary, confine the prisoner in the jail of any county or city through which he may pass; and the keeper of such jail must receive and safely keep the prisoner until the officer or person having charge of him is ready to proceed on his route, such officer or person being chargeable with the expense of keeping.
The officer or agent of a demanding state to whom a prisoner may have been delivered following extradition proceedings in another state, or to whom a prisoner may have been delivered after waiving extradition in such other state, and who is passing through this state with such prisoner for the purpose of immediately returning such prisoner to the demanding state may, when necessary, confine the prisoner in the jail of any county or city through which he may pass; and the keeper of such jail must receive and safely keep the prisoner until the officer or agent having charge of him is ready to proceed on his route, such officer or agent, however, being chargeable with the expense of keeping; Provided however, that such officer or agent shall produce and show to the keeper of such jail satisfactory written evidence of the fact that he is actually transporting such prisoner to the demanding state after a requisition by the Executive Authority of such demanding state. Such prisoner shall not be entitled to demand a new requisition while in this state.
Source:Laws 1963, c. 159, § 12, p. 562.
29-741.
Warrant of arrest; issuance prior to requisition; grounds.Whenever any person within this state shall be charged on the oath of any credible person before any judge or magistrate of this state with the commission of any crime in any other state and, except in cases arising under section 29-734, with having fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his bail, probation or parole, or whenever complaint shall have been made before any judge or magistrate in this state setting forth on the affidavit of any credible person in another state that a crime has been committed in such other state and that the accused has been charged in such state with the commission of the crime, and, except in cases arising under section 29-734, has fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his bail, probation or parole and is believed to be in this state, the judge or magistrate shall issue a warrant directed to any peace officer commanding him to apprehend the person named therein, wherever he may be found in this state, and to bring him before the same or any other judge, magistrate or court who or which may be available in or convenient of access to the place where the arrest may be made, to answer the charge or complaint and affidavit, and a certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.
Source:Laws 1963, c. 159, § 13, p. 562.
Annotations
Breaking the terms of bail, probation, or parole is a basis for extradition under this section. State ex rel. Borrink v. State, 10 Neb. App. 293, 634 N.W.2d 18 (2001).
29-742.
Arrest without warrant by officer or citizen; when.The arrest of a person may be lawfully made also by any peace officer or a private person, without a warrant upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding one year, but when so arrested the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest as in section 29-741; and thereafter his answer shall be heard as if he had been arrested on a warrant.
Source:Laws 1963, c. 159, § 14, p. 563.
29-743.
Commitment to await requisition; bail.If from the examination before the judge or magistrate it appears that the person held is the person charged with having committed the crime alleged and, except in cases arising under section 29-734, that he has fled from justice, the judge or magistrate must, by a warrant reciting the accusation, commit him to the county jail for such a time not exceeding thirty days and specified in the warrant, as will enable the arrest of the accused to be made under a warrant of the Governor on a requisition of the Executive Authority of the state having jurisdiction of the offense, unless the accused give bail as provided in section 29-744, or until he shall be legally discharged.
Source:Laws 1963, c. 159, § 15, p. 563.
Annotations
The illegality of a prisoner's custody prior to the issuance of a rendition warrant from a sister state does not render the warrant void and unenforceable. Bell v. Janing, 188 Neb. 690, 199 N.W.2d 24 (1972).
29-744.
Bail; bond; conditions.Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, a judge or magistrate in this state may admit the person arrested to bail by bond, with sufficient sureties, and in such sum as he deems proper, conditioned for his appearance before him at a time specified in such bond, and for his surrender, to be arrested upon the warrant of the Governor of this state.
Source:Laws 1963, c. 159, § 16, p. 564.
29-745.
Commitment; discharge, recommitment, or bail.If the accused is not arrested under warrant of the Governor by the expiration of the time specified in the warrant or bond, a judge or magistrate may discharge him or may recommit him for a further period not to exceed sixty days, or a judge or magistrate judge may again take bail for his appearance and surrender, as provided in section 29-744, but within a period not to exceed sixty days after the date of such new bond.
Source:Laws 1963, c. 159, § 17, p. 564.
Annotations
The illegality of a prisoner's custody prior to the issuance of a rendition warrant from a sister state does not render the warrant void and unenforceable. Bell v. Janing, 188 Neb. 690, 199 N.W.2d 24 (1972).
29-746.
Bail; forfeiture; effect.If the prisoner is admitted to bail, and fails to appear and surrender himself according to the conditions of his bond, the judge, or magistrate by proper order, shall declare the bond forfeited and order his immediate arrest without warrant if he be within this state. Recovery may be had on such bond in the name of the state as in the case of other bonds given by the accused in criminal proceedings within this state.
Source:Laws 1963, c. 159, § 18, p. 564.
29-747.
Persons under criminal prosecution in this state at time of requisition; Governor; discretionary powers.If a criminal prosecution has been instituted against such person under the laws of this state and is still pending the Governor, in his discretion, either may surrender him on demand of the Executive Authority of another state or hold him until he has been tried and discharged or convicted and punished in this state.
Source:Laws 1963, c. 159, § 19, p. 564.
29-748.
Guilt or innocence of accused; inquiry; when.The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the Governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as above provided shall have been presented to the Governor, except as it may be involved in identifying the person held as the person charged with the crime.
Source:Laws 1963, c. 159, § 20, p. 565.
29-749.
Warrant of arrest; recall; issuance.The Governor may recall his warrant of arrest or may issue another warrant whenever he deems proper.
Source:Laws 1963, c. 159, § 21, p. 565.
29-750.
Fugitives from this state; warrant; Governor's duty.Whenever the Governor of this state shall demand a person charged with crime or with escaping from confinement or breaking the terms of his bail, probation or parole in this state, from the Executive Authority of any other state, or from the Chief Justice or an Associate Justice of the Supreme Court of the District of Columbia authorized to receive such demand under the laws of the United States, he shall issue a warrant under the seal of this state, to some agent, commanding him to receive the person so charged if delivered to him and convey him to the proper officer of the county in this state in which the offense was committed.
Source:Laws 1963, c. 159, § 22, p. 565.
29-751.
Fugitives from this state; requisition; application; contents; filing.(1) When the return to this state of a person charged with crime in this state is required, the prosecuting attorney shall present to the Governor a written application for a requisition for the return of the person charged in which application shall be stated the name of the person so charged, the crime charged against him or her, the approximate time, place, and circumstances of its commission, the state in which he or she is believed to be, including the location of the accused therein at the time the application is made and certifying that, in the opinion of the said prosecuting attorney the ends of justice require the arrest and return of the accused to this state for trial and that the proceeding is not instituted to enforce a private claim.
(2) When the return to this state is required of a person who has been convicted of a crime in this state and has escaped from confinement or broken the terms of his or her bail, probation, or parole, the prosecuting attorney of the county in which the offense was committed, the parole board, or, if the escape was from an institution of the Department of Correctional Services, the Director of Correctional Services, or sheriff of the county from which escape was made, shall present to the Governor a written application for a requisition for the return of such person, in which application shall be stated the name of the person, the crime of which he or she was convicted, the circumstances of the escape from confinement or of the breach of the terms of bail, probation, or parole, the state in which he or she is believed to be, including the location of the person therein at the time application is made.
(3) The application shall be verified by affidavit, shall be executed in duplicate, and shall be accompanied by two certified copies of the indictment returned, or information and affidavit filed, or of the complaint made to the judge or magistrate, stating the offense with which the accused is charged, or of the judgment of conviction or of the sentence. The prosecuting officer, parole board, director, or sheriff may also attach such further affidavits and other documents in duplicate as he or she shall deem proper to be submitted with such application. One copy of the application, with the action of the Governor indicated by endorsement thereon, and one of the certified copies of the indictment, complaint, information, and affidavits, or of the judgment of conviction or of the sentence shall be filed in the office of the Secretary of State to remain of record in that office. The other copies of all papers shall be forwarded with the Governor's requisition.
Source:Laws 1963, c. 159, § 23, p. 565; Laws 1980, LB 697, § 1.
29-752.
Costs; expenses; payment.When the punishment of the crime is the confinement of the criminal in a Department of Correctional Services adult correctional facility, the expenses shall be paid out of the state treasury on the certificate of the Governor and warrant of the State Treasurer and Director of Administrative Services. In all other cases the expenses shall be paid out of the county treasury in the county wherein the crime is alleged to have been committed. The expenses shall be the fees paid to the officers of the state on whose Governor the requisition is made and shall be equal to the mileage rate authorized in section 81-1176 for each mile which is necessary to travel in returning such prisoner.
Annotations
This section fixes the expenses of extradition to be taxed as costs as the mileage at the applicable statutory rate necessarily incurred in traveling to return the prisoner to Nebraska. State v. Smith, 13 Neb. App. 477, 695 N.W.2d 440 (2005).
29-753.
Extradition; civil action; immunity from service of process in certain cases.A person brought into this state by, or after waiver of, extradition based on a criminal charge shall not be subject to service of personal process in civil actions arising out of the same facts as the criminal proceeding to answer which he is being or has been returned, until he has been convicted in the criminal proceeding, or, if acquitted, until he has had reasonable opportunity to return to the state from which he was extradited.
Source:Laws 1963, c. 159, § 25, p. 567.
29-754.
Extradition proceedings; written waiver; procedure.Any person arrested in this state charged with having committed any crime in another state or alleged to have escaped from confinement, or broken the terms of his bail, probation or parole may waive the issuance and service of the warrant provided for in sections 29-735 and 29-736 and all other procedure incidental to extradition proceedings, by executing or subscribing in the presence of a judge of any court of record within this state a writing which states that he consents to return to the demanding state; Provided however, that before such waiver shall be executed or subscribed by such person it shall be the duty of such judge to inform such person of his rights to the issuance and service of a warrant of extradition and to obtain a writ of habeas corpus as provided for in section 29-738.
If and when such consent has been duly executed it shall forthwith be forwarded to the office of the Governor of this state and filed therein. The judge shall direct the officer having such person in custody to deliver forthwith such person to the duly accredited agent or agents of the demanding state, and shall deliver or cause to be delivered to such agent or agents a copy of such consent; Provided however, that nothing in this section shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state, nor shall this waiver procedure be deemed to be an exclusive procedure or to limit the powers, rights or duties of the officers of the demanding state or of this state.
Source:Laws 1963, c. 159, § 26, p. 567.
29-755.
Nonwaiver by this state.Nothing in sections 29-729 to 29-758 contained shall be deemed to constitute a waiver by this state of its right, power or privilege to try such demanded person for crime committed within this state, or of its right, power or privilege to regain custody of such person by extradition proceedings or otherwise for the purpose of trial, sentence or punishment for any crime committed within this state, nor shall any proceedings had under sections 29-729 to 29-758 which result in, or fail to result in, extradition be deemed a waiver by this state of any of its rights, privileges or jurisdiction in any way whatsoever.
Source:Laws 1963, c. 159, § 27, p. 568.
29-756.
Extradition; other criminal prosecutions; no right of asylum or immunity.After a person has been brought back to this state by, or after waiver of extradition proceedings, he may be tried in this state for other crimes which he may be charged with having committed here as well as that specified in the requisition for his extradition.
Source:Laws 1963, c. 159, § 28, p. 568.
Annotations
The foregoing statute has long been the rule in this state. State v. Dodd, 175 Neb. 533, 122 N.W.2d 518 (1963).
29-757.
Sections, how construed.The provisions of sections 29-729 to 29-758 shall be so interpreted and construed as to effectuate their general purposes to make uniform the law of those states which enact them.
Source:Laws 1963, c. 159, § 29, p. 568.
29-758.
Act, how cited.Sections 29-729 to 29-758 may be cited as the Uniform Criminal Extradition Act.
Source:Laws 1963, c. 159, § 30, p. 568.
29-759.
Text of agreement.The Agreement on Detainers is hereby enacted into law and entered into by this state with all other jurisdictions legally joining therein in the form substantially as follows:
"TEXT OF THE AGREEMENT ON DETAINERS
The contracting states solemnly agree that:
Article I
The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.
Article II
As used in this agreement:
(a) State shall mean a state of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the Commonwealth of Puerto Rico.
(b) Sending state shall mean a state in which a prisoner is incarcerated at the time that he initiates a request for final disposition pursuant to Article III hereof or at the time that a request for custody or availability is initiated pursuant to Article IV hereof.
(c) Receiving state shall mean the state in which trial is to be had on an indictment, information or complaint pursuant to Article III or Article IV hereof.
Article III
(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; Provided, that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.
(b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
(c) The warden, commissioner of corrections or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.
(d) Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall operate as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed. The warden, commissioner of corrections or other official having custody of the prisoner shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the state to which the prisoner's request for final disposition is being sent of the proceeding being initiated by the prisoner. Any notification sent pursuant to this paragraph shall be accompanied by copies of the prisoner's written notice, request, and the certificate. If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
(e) Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby or included therein by reason of paragraph (d) hereof, and a waiver of extradition to the receiving state to serve any sentence there imposed upon him, after completion of his term of imprisonment in the sending state. The request for final disposition shall also constitute a consent by the prisoner to the production of his body in any court where his presence may be required in order to effectuate the purposes of this agreement and a further consent voluntarily to be returned to the original place of imprisonment in accordance with the provisions of this agreement. Nothing in this paragraph shall prevent the imposition of a concurrent sentence if otherwise permitted by law.
(f) Escape from custody by the prisoner subsequent to his execution of the request for final disposition referred to in paragraph (a) hereof shall void the request.
Article IV
(a) The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with Article V (a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated; Provided, that the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request; and provided further, that there shall be a period of thirty days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.
(b) Upon receipt of the officer's written request as provided in paragraph (a) hereof, the appropriate authorities having the prisoner in custody shall furnish the officer with a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. Said authorities simultaneously shall furnish all other officers and appropriate courts in the receiving state who have lodged detainers against the prisoner with similar certificates and with notices informing them of the request for custody or availability and of the reasons therefor.
(c) In respect of any proceeding made possible by this article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
(d) Nothing contained in this article shall be construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in paragraph (a) hereof, but such delivery may not be opposed or denied on the ground that the executive authority of the sending state has not affirmatively consented to or ordered such delivery.
(e) If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
Article V
(a) In response to a request made under Article III or Article IV hereof, the appropriate authority in a sending state shall offer to deliver temporary custody of such prisoner to the appropriate authority in the state where such indictment, information or complaint is pending against such person in order that speedy and efficient prosecution may be had. If the request for final disposition is made by the prisoner, the offer of temporary custody shall accompany the written notice provided for in Article III of this agreement. In the case of a federal prisoner, the appropriate authority in the receiving state shall be entitled to temporary custody as provided by this agreement or to the prisoner's presence in federal custody at the place for trial, whichever custodial arrangement may be approved by the custodian.
(b) The officer or other representative of a state accepting an offer of temporary custody shall present the following upon demand:
(1) Proper identification and evidence of his authority to act for the state into whose temporary custody the prisoner is to be given.
(2) A duly certified copy of the indictment, information or complaint on the basis of which the detainer has been lodged and on the basis of which the request for temporary custody of the prisoner has been made.
(c) If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III or Article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.
(d) The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, informations or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction. Except for his attendance at court and while being transported to or from any place at which his presence may be required, the prisoner shall be held in a suitable jail or other facility regularly used for persons awaiting prosecution.
(e) At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state.
(f) During the continuance of temporary custody or while the prisoner is otherwise being made available for trial as required by this agreement, time being served on the sentence shall continue to run but good time shall be earned by the prisoner only if, and to the extent that, the law and practice of the jurisdiction which imposed the sentence may allow.
(g) For all purposes other than that for which temporary custody as provided in this agreement is exercised, the prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending state and any escape from temporary custody may be dealt with in the same manner as an escape from the original place of imprisonment or in any other manner permitted by law.
(h) From the time that a party state receives custody of a prisoner pursuant to this agreement until such prisoner is returned to the territory and custody of the sending state, the state in which the one or more untried indictments, informations or complaints are pending or in which trial is being had shall be responsible for the prisoner and shall also pay all costs of transporting, caring for, keeping and returning the prisoner. The provisions of this paragraph shall govern unless the states concerned shall have entered into a supplementary agreement providing for a different allocation of costs and responsibilities as between or among themselves. Nothing herein contained shall be construed to alter or affect any internal relationship among the departments, agencies and officers of and in the government of a party state, or between a party state and its subdivisions, as to the payment of costs, or responsibilities therefor. The costs contemplated by this section which must be paid by the State of Nebraska or the appropriate political subdivision thereof shall be paid in the same manner and extent and from the same funds which would have been used in the case of extradition of a prisoner from another state.
Article VI
(a) In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.
(b) No provision of this agreement, and no remedy made available by this agreement, shall apply to any person who is adjudged to be mentally ill.
Article VII
Each state party to this agreement shall designate an officer who, acting jointly with like officers of other party states, shall promulgate rules and regulations to carry out more effectively the terms and provisions of this agreement, and who shall provide, within and without the state, information necessary to the effective operation of this agreement.
Article VIII
This agreement shall enter into full force and effect as to a party state when such state has enacted the same into law. A state party to this agreement may withdraw herefrom by enacting a statute repealing the same. However, the withdrawal of any state shall not affect the status of any proceedings already initiated by inmates or by state officers at the time such withdrawal takes effect, nor shall it affect their rights in respect thereof.
Article IX
This agreement shall be liberally construed so as to effectuate its purposes. The provisions of this agreement shall be severable and if any phrase, clause, sentence or provision of this agreement is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this agreement and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this agreement shall be held contrary to the constitution of any state party hereto, the agreement shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters."
Source:Laws 1963, c. 154, § 1, p. 543.
Annotations
1. Detainer
2. Speedy trial
3. Sending and receiving states
4. Miscellaneous
1. Detainer
A detainer for a prisoner who has been convicted but not sentenced does not relate to an "untried indictment, information or complaint" and thus does not trigger the procedural requirements of Article III of the interstate Agreement on Detainers. State v. Jimenez, 283 Neb. 95, 808 N.W.2d 352 (2012).
For purposes of the Agreement on Detainers, a "detainer" is a notification filed with the institution in which an individual is serving a sentence, advising the prisoner that he is wanted to face criminal charges pending in another jurisdiction. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
A detainer is a notification filed with the institution in which an individual is serving a sentence, advising the prisoner that he or she is wanted to face criminal charges pending in another jurisdiction. More specifically, a detainer is a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency after his or her release or to notify the agency when release of the prisoner is imminent. A state writ of habeas corpus ad prosequendum, seeking the immediate delivery of a prisoner for trial on criminal charges, does not constitute a detainer. Mere notice of pending criminal charges is insufficient to invoke the provisions of the Agreement on Detainers. State v. Williams, 253 Neb. 619, 573 N.W.2d 106 (1997).
Under the Agreement on Detainers, a detainer is a notification filed with the institution in which an individual is serving a sentence, advising the prisoner that he is wanted to face criminal charges pending in another jurisdiction. State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984).
2. Speedy trial
A court may not apply Nebraska's 6-month speedy trial statute under section 29-1207 to determine whether a prisoner is timely brought to trial under article III(a) of the Agreement on Detainers. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
The Agreement on Detainers has separate speedy trial provisions depending upon whether its procedures are initiated by the prisoner or authorities in the jurisdiction where the charge is pending. Article III of the agreement prescribes the procedure by which a prisoner against whom a detainer has been lodged may demand a speedy disposition of outstanding charges. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
The 180-day trial limitation under article III(a) of the Agreement on Detainers begins to run on the day the prisoner's request for disposition of untried charges is received by the prosecutor and court of jurisdiction. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
Upon receipt of a prisoner's proper request for disposition of untried charges under article III of the Agreement on Detainers, authorities in the state where a charge is pending must bring the prisoner to trial within 180 days. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
When seeking a discharge on speedy trial grounds under article III(a) of the Agreement on Detainers, defense counsel's performance is deficient when he or she fails to present evidence showing the time limitation for trial under article III(a) has been triggered. The prisoner was prejudiced by counsel's failure when there was a reasonable probability that an appeal or petition for further review from the district court's denial of prisoner's motion to discharge would have resulted in a reversal had the evidence been submitted. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
The Agreement on Detainers controls a defendant's speedy trial rights when he or she is already incarcerated in another state or in a federal facility before an information is filed against the defendant in Nebraska. State v. Steele, 261 Neb. 541, 624 N.W.2d 1 (2001).
Article III of the Agreement on Detainers prescribes the procedure by which a prisoner against whom a detainer has been lodged may demand a speedy disposition of outstanding charges. Upon receipt of a proper request for disposition under this article, the receiving state must bring the prisoner to trial within one hundred eighty days. Also, under this article, for a prisoner's demand for disposition of the charges to trigger the one hundred eighty day period, it must be made in the manner required by Article III. State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984).
A ruling on a motion to discharge, based on the speedy trial provisions of the Agreement on Detainers, is a final, appealable order. State v. Rieger, 8 Neb. App. 20, 588 N.W.2d 206 (1999).
Under Article III of the Agreement on Detainers, for a prisoner's demand for disposition to trigger the 180-day period, it must be made in the manner therein required. State v. Nearhood, 2 Neb. App. 915, 518 N.W.2d 165 (1994).
3. Sending and receiving states
A prisoner is not returned to his original place of imprisonment when he is returned to the sending state simply to face pending charges. State v. Reed, 266 Neb. 641, 668 N.W.2d 245 (2003).
If one jurisdiction is actively prosecuting a defendant on current and pending charges, the defendant is unable to stand trial in the state in which he requested final disposition until resolution of the pending charges in the sending state. State v. Reed, 266 Neb. 641, 668 N.W.2d 245 (2003).
A ruling denying a motion to dismiss with prejudice for failure to bring an individual to trial within 120 days from the date of his or her arrival in the receiving state is a final, appealable order. The speedy trial provisions of the Agreement on Detainers are triggered only when a detainer is filed with the state where an individual is a prisoner by the state having untried charges pending against the individual. State v. Williams, 253 Neb. 619, 573 N.W.2d 106 (1997).
Article IV of the Agreement on Detainers sets forth the procedures by which the authorities where the charges are pending may initiate the process whereby a prisoner is returned to the state for trial. In respect of any proceedings made possible under this article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state. State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984).
Article V(d) of this section permits the receiving state to prosecute a defendant not only for the charge or charges forming the basis of the detainer but also on all other charges arising out of the same transaction. State v. Steele, 7 Neb. App. 110, 578 N.W.2d 508 (1998).
The right of a prisoner under Article IV(c) of the Agreement on Detainers to be tried within 120 days of being brought into the state is a statutory right and not a constitutional right. A prisoner may waive this right by not raising the issue prior to or during trial. State v. Harper, 2 Neb. App. 220, 508 N.W.2d 584 (1993).
4. Miscellaneous
If an action for untried charges is not brought to trial within the time periods authorized by articles III and IV of the Agreement on Detainers, the action shall be dismissed with prejudice under article V(c) of the agreement. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
In a ruling on a motion to dismiss with prejudice based on alleged violations of the Agreement on Detainers, a trial court's pretrial factual findings regarding the application of provisions of the agreement will not be disturbed on appeal unless clearly wrong. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
To avoid prolonged interference with rehabilitation programs, the Agreement on Detainers provides the procedure whereby persons who are imprisoned in one state or by the United States, and who are also charged with crimes in another state or by the United States, can be tried expeditiously for the pending charges while they are serving their current sentences. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
The Interstate Agreement on Detainers applies solely to persons who have entered upon a term of imprisonment and therefore does not include pretrial detainees. State v. Reed, 266 Neb. 641, 668 N.W.2d 245 (2003).
The provisions of the Agreement on Detainers apply only when a detainer has been lodged against a prisoner who has entered a term of imprisonment in a party state. State v. Steele, 261 Neb. 541, 624 N.W.2d 1 (2001).
In ruling on a motion to dismiss with prejudice based on alleged violations of the Agreement on Detainers, it is proper for the trial court to hold a pretrial evidentiary hearing to determine whether a detainer was filed against the defendant and, if a detainer was filed, to determine whether the provisions of the agreement were violated. The Agreement on Detainers provides the procedure whereby persons who are imprisoned in one state or by the United States, and who are also charged with crimes in another state or by the United States, can be tried expeditiously for the pending charges while they are serving their current sentences, in order to avoid prolonged interference with rehabilitation programs. Because the Agreement on Detainers is a congressionally sanctioned interstate compact, it is a federal law subject to federal construction and, thus, U.S. Supreme Court interpretations of the Agreement on Detainers are binding upon state courts. Articles IV and V of the Agreement on Detainers provide the procedures by which the authorities in the state where the charges are pending, the receiving state, may initiate the process whereby a prisoner is transferred to the receiving state for trial on the pending charges. State v. Williams, 253 Neb. 619, 573 N.W.2d 106 (1997).
Habeas corpus is not the proper action to challenge the validity of a detainer based upon an untried complaint, where the state filing the detainer has not requested transfer of the prisoner. Wickline v. Gunter, 233 Neb. 878, 448 N.W.2d 584 (1989).
Article V(c) of the Agreement on Detainers provides for dismissal of a pending complaint on which a detainer is based if the appropriate authority shall refuse or fail to accept custody of the prisoner against whom the charges are pending or fail to bring that prisoner to trial within the period provided in Article III or Article IV. The Agreement also provides the remedy of dismissal of charges with prejudice in those specific cases not including possible errors made by another party's prison officials. State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984).
The Agreement on Detainers was designed to promote the expeditious and orderly disposition of outstanding charges against a prisoner and to determine the proper status of any and all detainers based on untried indictments, informations, or complaints. State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984).
The provisions of the Agreement on Detainers apply only when a detainer has been lodged against a prisoner who has entered a term of imprisonment in a party state. State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984).
The phrase "unable to stand trial" included in article VI(a) of this section includes those periods of delay occasioned by the defendant. Failure to appear at a preliminary hearing due to re-incarceration is clearly an example of a delay occasioned by the defendant. State v. Meyer, 7 Neb. App. 963, 588 N.W.2d 200 (1998).
29-760.
Appropriate court, defined.The phrase appropriate court as used in the Agreement on Detainers shall, with reference to the courts of this state, mean any court with criminal jurisdiction in the matter involved.
Source:Laws 1963, c. 154, § 2, p. 551.
29-761.
Enforcement of agreement.All courts, departments, agencies, officers and employees of this state and its political subdivisions are hereby directed to enforce the Agreement on Detainers and to cooperate with one another and with other party states in enforcing the agreement and effectuating its purpose.
Source:Laws 1963, c. 154, § 3, p. 551.
29-762.
Escape from custody; penalty.Escape from custody while in another state pursuant to the Agreement on Detainers shall constitute an offense against the laws of this state to the same extent and degree as an escape from the institution in which the prisoner was confined immediately prior to having been sent to another state pursuant to the provisions of the Agreement on Detainers and shall be punishable in the same manner as an escape from said institution.
Source:Laws 1963, c. 154, § 4, p. 551.
29-763.
Official in charge of penal or correctional institution; duties.It shall be lawful and mandatory upon the warden or other official in charge of a penal or correctional institution in this state to give over the person of any inmate thereof whenever so required by the operation of the Agreement on Detainers.
Source:Laws 1963, c. 154, § 5, p. 552.
29-764.
Central administrator; appointment; powers.Pursuant to said agreement, the Governor is hereby authorized and empowered to designate an officer or alternate who shall be the central administrator of and the information agent for the Agreement on Detainers and who, acting jointly with like officers of other party states, shall have power to formulate rules and regulations to carry out more effectively the terms of the agreement, and shall serve subject to the pleasure of the Governor.
Source:Laws 1963, c. 154, § 6, p. 552.
29-765.
Copies of sections; distribution.Copies of sections 29-759 to 29-765 shall, upon its approval, be transmitted by the Secretary of State to the Governor of each state, the Attorney General and the administrator of general services of the United States, and the Council of State Governments.
Source:Laws 1963, c. 154, § 7, p. 552.
29-801.
Repealed. Laws 1963, c. 161, § 12.
29-802.
Repealed. Laws 1963, c. 161, § 12.
29-803.
Repealed. Laws 1963, c. 161, § 12.
29-804.
Repealed. Laws 1963, c. 161, § 12.
29-805.
Repealed. Laws 1963, c. 161, § 12.
29-806.
Repealed. Laws 1963, c. 161, § 12.
29-807.
Repealed. Laws 1963, c. 161, § 12.
29-808.
Repealed. Laws 1963, c. 161, § 12.
29-809.
Repealed. Laws 1963, c. 161, § 12.
29-810.
Repealed. Laws 1963, c. 161, § 12.
29-811.
Repealed. Laws 1963, c. 161, § 12.
29-812.
Search warrant; issuance.A search warrant authorized by sections 29-812 to 29-821 may be issued by any judge of the county court, district court, Court of Appeals, or Supreme Court for execution anywhere within the State of Nebraska or for service upon any publicly or privately held corporation, partnership, or other legal entity located within or outside the State of Nebraska. A similar search warrant authorized by such sections may be issued, subject to section 24-519, by any clerk magistrate within the county in which the property sought is located.
Source:Laws 1963, c. 161, § 1, p. 570;
Laws 1973, LB 226, § 17; Laws 1974, LB 735, § 2; Laws 1982, LB 928, § 24;
Laws 1984, LB 13, § 56; Laws 1986, LB 529, § 30; Laws 1991, LB 732, § 72; Laws 1992, LB 1059, § 22;
Laws 2006, LB 1115, § 19; Laws 2015, LB294, § 13.
Cross References
Nebraska Liquor Control Act, issuance under, see section 53-1,108 et seq.
Annotations
Failure of magistrate to collect fee for issuing search warrant does not invalidate it. State v. McCown, 189 Neb. 495, 203 N.W.2d 445 (1973).
On a hearing on a motion to suppress evidence, it is within the discretion of the trial court to permit withdrawal of rest and the taking of further evidence. State v. Putnam, 178 Neb. 445, 133 N.W.2d 605 (1965).
29-813.
Search warrant; issuance; limitation; terms, defined.(1) A warrant may be issued under sections 29-812 to 29-821 to search for and seize any property (a) stolen, embezzled, or obtained under false pretenses in violation of the laws of the State of Nebraska, (b) designed or intended for use or which is or has been used as the means of committing a criminal offense, (c) possessed, controlled, designed, or intended for use or which is or has been possessed, controlled, designed, or used in violation of any law of the State of Nebraska making such possession, control, design, or use, or intent to use, a criminal offense, or (d) which constitutes evidence that a criminal offense has been committed or that a particular person has committed a criminal offense.
(2) Notwithstanding subsection (1) of this section, no warrant shall be issued to search any place or seize anything in the possession, custody, or control of any person engaged in procuring, gathering, writing, editing, or disseminating news or other information for distribution to the public through a medium of communication unless probable cause is shown that such person has committed or is committing a criminal offense. For purposes of this subsection, the terms person, information, and medium of communication shall be defined as provided in section 20-145.
Annotations
An arrest may not be used as a pretext to search for evidence. A pretext arrest is one where the arrest is only a sham, a front being used as an excuse for making a search. The determination of whether an arrest is pretextual is a question of fact for the trial court. This court will not reverse a trial court's finding on this question unless the finding is clearly erroneous. State v. Vann, 230 Neb. 601, 432 N.W.2d 810 (1988).
A warrant to search a house also covers the land around the house and associated outbuildings used by the inhabitants of the house. State v. Vicars, 207 Neb. 325, 299 N.W.2d 421 (1980).
Items not listed on a search warrant but in plain view of officers searching an area described in the warrant for items listed on the warrant may be seized. State v. King, 207 Neb. 270, 298 N.W.2d 168 (1980).
The eyewitness report of a citizen informant may be self-corroborating; the fact that a citizen voluntarily came forward with information is itself an indicium of reliability. State v. King, 207 Neb. 270, 298 N.W.2d 168 (1980).
The fact that defendant's arrest may have been illegal does not render inadmissible evidence seized pursuant to a valid search warrant received by police shortly after they entered the defendant's apartment. State v. Smith, 207 Neb. 263, 298 N.W.2d 162 (1980).
29-814.
Repealed. Laws 1980, LB 731, § 7.
29-814.01.
Search warrant; issuance on affidavit; procedure.A search warrant may be issued under section 29-814.04 pursuant to written affidavit sworn to before a magistrate, a judge, or any other person authorized to administer oaths under the laws of this state by the person making it. Such affidavit shall particularly describe the persons or places to be searched and the persons or property to be seized. Such affidavit shall set forth the facts and circumstances tending to show that such person or property is in the place, or the property is in the possession of the person, to be searched. Such affidavit may be submitted to the magistrate or judge in person or by facsimile or other electronic means and the warrant may be issued to the affiant in person or by facsimile or other electronic means.
Annotations
It is well established that affidavits for search warrants must be tested and interpreted in a common-sense and realistic fashion. Where the circumstances are detailed and reasons for crediting a source of information are given resulting in a finding of probable cause by the magistrate, the court should not invalidate the warrant by interpreting the affidavit in a hyper-technical manner and should find it sufficient if it will support the issuance of a warrant after the deletion of any inaccurate statements. State v. Longa, 211 Neb. 356, 318 N.W.2d 733 (1982).
29-814.02.
Search warrant; issuance on oral statement; procedure.In lieu of, or in addition to, written affidavit, a search warrant may be issued under section 29-814.04 pursuant to an oral statement given in person and under oath to a magistrate or judge. The oral statement shall be taken by means of a voice recording device in the custody of the magistrate or judge. If no voice recording device is available, the statement may be taken stenographically. The magistrate or judge shall direct that the recorded or stenographic statement be transcribed and the magistrate or judge shall certify the accuracy of the transcription. The magistrate or judge shall file with the clerk of the district court of the county in which the property was seized the original of the record and the transcribed statement. Such filing shall be made at the same time the warrant, copy of the return, inventory, and all other papers connected with the warrant are filed pursuant to section 29-816. For purposes of sections 29-814.01 to 29-814.06, an oral statement authorized by this section shall be considered to be an affidavit.
Source:Laws 1980, LB 731, § 2.
Annotations
Where the judge incorporated an officer's oral statement into the officer's affidavit by interlineation, there was no need to comply with this section. State v. Nelson, 6 Neb. App. 519, 574 N.W.2d 770 (1998).
29-814.03.
Search warrant; issuance on telephonic statement; procedure.A search warrant may be issued under section 29-814.05 pursuant to a telephonic statement made to a magistrate or judge in accordance with the procedures set forth in this section. Prior to telephonically contacting a magistrate or judge, the law enforcement officer requesting the warrant shall contact the county attorney or a deputy county attorney of the county in which the warrant is to be issued for purposes of explaining the reasons why a search warrant should be issued pursuant to a telephonic statement. If the county attorney or deputy county attorney is satisfied that a warrant is justified, and that circumstances justify its immediate issuance, the county attorney or deputy county attorney shall contact the magistrate or judge and state that he or she is convinced that a warrant should be issued by telephone. The county attorney or deputy county attorney shall provide the magistrate or judge with a telephone number at which the officer requesting the warrant may be contacted. The magistrate or judge shall call the officer at the number provided and shall place the officer under oath and take his or her statement. The statement shall be taken by means of a voice recording device in the custody of the magistrate or judge. The magistrate or judge shall direct that the recorded statement be transcribed and the magistrate or judge shall certify the accuracy of the transcription. The magistrate or judge shall file with the clerk of the district court of the county in which the property was seized the original of the recording and the transcribed statement. Such filing shall be made at the same time the warrant, copy of the return, inventory, and all other papers connected with the warrant are filed pursuant to section 29-816. For purposes of sections 29-814.01 to 29-814.06, a telephonic statement authorized by this section shall be considered to be an affidavit.
Source:Laws 1980, LB 731, § 3.
29-814.04.
Search warrant; issuance on written affidavit or oral statement; contents; restriction.If the magistrate or judge is satisfied that probable cause exists for the issuance of a search warrant, as a result of written affidavit or oral statement authorized pursuant to sections 29-814.01 and 29-814.02, the magistrate or judge shall issue the warrant which shall identify the person or place to be searched and the person or property to be seized. The warrant shall be directed to a law enforcement officer of the State of Nebraska or one of its governmental subdivisions, which officer shall be specifically named or described by the title of his or her office in the warrant. The warrant shall state whether the grounds or proper cause of its issuance is a written affidavit, an oral statement, or a combination of both. The warrant shall indicate the name or names of the person or persons whose affidavit or statement has been taken in support thereof. The warrant shall command the officer named in the warrant to search the person or place named for the purpose specified. The warrant shall direct that it be served in the daytime unless the magistrate or judge is satisfied that the public interest requires that it should not be so restricted, in which case the warrant may direct that it may be served at any time. The warrant shall designate the magistrate or judge to whom it shall be returned. For purposes of this section, daytime shall mean the hours from 7 a.m. to 8 p.m. according to local time.
Annotations
An affidavit in support of a search warrant need not contain a separate statement of facts showing why the public interest requires that the warrant be served at night, in order for the nighttime search to be valid. If the affidavit, read in a commonsense manner and as a whole, reasonably supports the inference that the interests of justice are best served by the authorization of nighttime service of a search warrant, provision for such service in the warrant is proper. State v. Ramirez, 274 Neb. 873, 745 N.W.2d 214 (2008).
A factual basis that shows the reviewing judicial officer that the public interest requires a nighttime search is a prerequisite to the issuance of a warrant authorizing a nighttime search under this section. State v. Fitch, 255 Neb. 108, 582 N.W.2d 342 (1998).
Where the use of the catchall phrase "John and/or Jane Doe" is not based on probable cause that all persons to whom the phrase might be applied will be engaged in illegal activity, the warrant does not satisfy the requirements of this section. State v. Pecha, 225 Neb. 673, 407 N.W.2d 760 (1987).
In order to authorize the issuance of a search warrant for service during the nighttime, the magistrate or judge must only be satisfied from a commonsense reading of the affidavit in support of such issuance that it reasonably supports the inference that the interests of justice are best served by the authorization of such nighttime service. An affidavit in support of the issuance of a search warrant which alleges facts which would lead a reasonable person to believe that a delay in service of the warrant would permit the possible destruction of contraband may be sufficient to authorize immediate nighttime service. State v. Paul, 225 Neb. 432, 405 N.W.2d 608 (1987).
The showing of probable cause necessary to support a search warrant requires only the probability, and not a prima facie showing, of criminal activity, and probable cause is to be evaluated by the collective information of the police as reflected in the affidavit, and is not limited to the firsthand knowledge of the officer who executes the affidavit. State v. Longa, 211 Neb. 356, 318 N.W.2d 733 (1982).
In order to authorize the issuance of a search warrant for service during the nighttime under this section, the magistrate or judge must only be satisfied from a commonsense reading of the affidavit in support of such issuance that it reasonably supports the inference that the interests of justice are best served by the authorization of nighttime service. State v. Moore, 2 Neb. App. 206, 508 N.W.2d 305 (1993).
The receipt of information concerning defendant's drug involvement at 6:45 p.m. from informant under arrest and with access to phones satisfied public interest requirement justifying nighttime execution of search warrant. State v. Flemming, 1 Neb. App. 12, 487 N.W.2d 564 (1992).
29-814.05.
Search warrant; issuance on telephonic statement; duplicate original; contents; procedure.(1) If the magistrate or judge is satisfied that probable cause exists for the issuance of a search warrant, as the result of a telephonic statement taken under section 29-814.03, and if the magistrate or judge is further satisfied that sufficient reason exists to issue such warrant by telephone, the magistrate or judge shall authorize the officer requesting the warrant to complete a duplicate original warrant which shall contain a description of the person or place to be searched, a description of the person or property to be seized, a command to the officer to conduct the search for the purposes specified, the date and time of issuance, a statement that the grounds or proper cause for its issuance is by telephonic statement, the name or names of the person or persons whose statement has been taken in support of the warrant, and the name of the judge to whom it is to be returned. The magistrate or judge shall authorize the officer to sign his or her name to the duplicate original warrant and to also sign the name of the officer thereto. A duplicate original warrant shall be deemed to be a search warrant for purposes of Chapter 29, article 8.
(2) At the time the magistrate or judge authorizes the officer to complete the duplicate original warrant under subsection (1) of this section, the magistrate or judge shall immediately complete and sign the original warrant which shall contain the information which is required for a duplicate original warrant under subsection (1) of this section. The magistrate or judge shall also enter on the face of the original warrant the exact time when the warrant was ordered to be issued.
(3) The duplicate original warrant shall be returned according to section 29-815. Upon the duplicate original warrant being returned, the magistrate or judge shall sign it and shall file it, together with the original warrant, in the same manner as that required under section 29-816.
(4) A search warrant issued pursuant to a telephonic statement shall be invalid unless the duplicate original warrant is signed by the issuing magistrate or judge pursuant to subsection (3) of this section.
(5) A search warrant issued under this section may be executed immediately upon issuance.
Source:Laws 1980, LB 731, § 5.
29-814.06.
Search warrant; issuance; original statement lost, destroyed, or unintelligible; effect.If the original of the oral or telephonic statement, taken pursuant to section 29-814.02 or 29-814.03, shall be lost, destroyed, or a critical portion thereof is unintelligible, a search warrant issued pursuant to such oral or telephonic statement shall be deemed to be invalid.
Source:Laws 1980, LB 731, § 6.
29-815.
Search warrant; executed and returned; inventory required.(1) The warrant must be executed and returned within ten days after its date. The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property or shall leave the copy and the receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken if they are present, or in the presence of at least one credible witness other than the applicant for the warrant or the person from whose possession or premises the property was taken, and shall be verified by the officer. The judge or magistrate shall deliver a copy of the inventory upon request to the person from whom or from whose premises the property was taken and to the applicant for the warrant.
(2) The return and inventory required by subsection (1) of this section may be submitted to the magistrate or judge in person or by facsimile or other electronic means.
Cross References
Fees for service, see section 33-117.
Annotations
Where there was no clear showing of prejudice, an officer's failure to return a search warrant within the time limit provided by this section was purely a ministerial defect and did not render the warrant invalid. State v. Nolt, 298 Neb. 910, 906 N.W.2d 309 (2018).
Irrespective of compliance with a rule or statutory time limit within which a search must be executed, a delay in the execution of a warrant may be constitutionally impermissible under the Fourth Amendment. State v. Swift, 251 Neb. 204, 556 N.W.2d 243 (1996).
The execution of the warrant 6 days after its issuance does not require suppression of evidence obtained based on the warrant. State v. Moore, 2 Neb. App. 206, 508 N.W.2d 305 (1993).
29-816.
Search warrant; return; inventory; filing; received in evidence; when.The judge or magistrate who has issued the search warrant shall attach to the warrant a copy of the return, inventory, and all other papers in connection therewith and shall file them with the clerk of the district court for the county in which the property was seized. Copy of such warrant, return, inventory, and all other such papers so filed with such clerk, when certified as a true copy by such clerk shall be received in evidence in all proceedings where relevant without further foundation. The clerk of the district court shall file and index such warrant, together with the return thereon, the inventory, and other papers in connection therewith as a separate criminal proceeding. No fee shall be charged or collected for such service.
Source:Laws 1963, c. 161, § 5, p. 572.
Annotations
Failure to comply strictly with post service statutory proceedings will not invalidate search under valid warrant in absence of clear showing of prejudice. State v. McCown, 189 Neb. 495, 203 N.W.2d 445 (1973).
29-817.
Search warrant; sections, how construed; property, defined; confidential issuance; violation; penalty.Sections 29-812 to 29-821 do not modify any act inconsistent with it relating to search warrants, their issuance, and the execution of search warrants and acts relating to disposition of seized property in circumstances for which special provision is made. The term property is used in sections 29-812 to 29-821 to include documents, books, papers, and any other tangible objects. Nothing in sections 29-812 to 29-821 shall be construed as restricting or in any way affecting the constitutional right of any officer to make reasonable searches and seizures as an incident to a lawful arrest nor to restrict or in any way affect reasonable searches and seizures authorized or consented to by the person being searched or in charge of the premises being searched, or in any other manner or way authorized or permitted to be made under the Constitution of the United States and the Constitution of the State of Nebraska.
All search warrants shall be issued with all practicable secrecy and the complaint, affidavit, or testimony upon which it is based shall not be filed with the clerk of the court or made public in any way until the warrant is executed. Whoever discloses, prior to its execution, that a warrant has been applied for or issued, except so far as may be necessary to its execution, shall be guilty of a Class III misdemeanor, or he may be punished as for a criminal contempt of court.
29-818.
Seized property; custody.Except for animals as provided in section 28-1012.01, property seized under a search warrant or validly seized without a warrant shall be safely kept by the officer seizing the same, unless otherwise directed by the judge or magistrate, and shall be so kept so long as necessary for the purpose of being produced as evidence in any trial. Property seized may not be taken from the officer having it in custody by replevin or other writ so long as it is or may be required as evidence in any trial, nor may it be so taken in any event where a complaint has been filed in connection with which the property was or may be used as evidence, and the court in which such complaint was filed shall have exclusive jurisdiction for disposition of the property or funds and to determine rights therein, including questions respecting the title, possession, control, and disposition thereof. This section shall not preempt, and shall not be construed to preempt, any ordinance of a city of the metropolitan or primary class.
Cross References
Seizure of vehicle and component parts, see section 60-2608.
Annotations
1. Jurisdiction
2. Miscellaneous
1. Jurisdiction
The district court, as the court in which the criminal charge was filed, has exclusive jurisdiction to determine the rights to seized property and the property's disposition. State v. McGuire, 301 Neb. 895, 921 N.W.2d 77 (2018).
The court in which a criminal charge was filed has exclusive jurisdiction to determine the rights to seized property and the property's disposition. State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007).
A car was property seized for the purpose of enforcing criminal laws in the plaintiff's ongoing criminal case; therefore, the car had been and remained to be in the custody of the court in the criminal case. As such, the district court in the plaintiff's separate criminal case continued to have exclusive jurisdiction to determine the rights to the car and the car's disposition. Huff v. Otto, 28 Neb. App. 646, 947 N.W.2d 343 (2020).
A harmonious reading of this section and section 29-819 is that references to jurisdiction in each are to jurisdiction over seized property, not subject matter jurisdiction. Huff v. Otto, 28 Neb. App. 646, 947 N.W.2d 343 (2020).
Where invoked, the grant of "exclusive jurisdiction" under this section gives a criminal trial court exclusive jurisdiction over only two issues: the disposition of seized property and the determination of rights in seized property. Huff v. Otto, 28 Neb. App. 646, 947 N.W.2d 343 (2020).
2. Miscellaneous
The denial of a motion for the return of a seized firearm was improper where the State failed to meet its burden to show the firearm was used by the claimant in an unlawful manner as an instrumentality of a crime. State v. Zimmer, 311 Neb. 294, 972 N.W.2d 57 (2022).
This section applies to a motion for the return of seized property where the firearm was seized incident to arrest for discharging a firearm within the city limits, a complaint was later filed charging refusal to obey a lawful order stemming from the incident, and the person pled guilty to this charge. State v. Zimmer, 311 Neb. 294, 972 N.W.2d 57 (2022).
The presumptive right to possession of seized property may be overcome when superior title in another is shown by a preponderance of the evidence. State v. Ebert, 303 Neb. 394, 929 N.W.2d 478 (2019).
Postconviction proceedings are the equivalent of a "trial" for purposes of this section. State v. Buttercase, 296 Neb. 304, 893 N.W.2d 430 (2017).
Property seized and held as evidence is to be safely kept by the officer seizing it unless otherwise directed by the court, and the officer is to exercise reasonable care and diligence for the safekeeping of the property. The property shall be kept so long as necessary for the purpose of being produced as evidence at trial. State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007).
A police officer's failure to "safely" keep a seized vehicle can give rise to liability under the Political Subdivisions Tort Claims Act. Section 29-818 requires a police officer to exercise reasonable care and diligence for the safekeeping of property within his custody. Nash v. City of North Platte, 205 Neb. 480, 288 N.W.2d 51 (1980).
This section mandates that the seized property is to be kept so long as necessary to make it available as evidence in "any trial." Postconviction proceedings are the equivalent of a "trial" for purposes of this section. Huff v. Otto, 28 Neb. App. 646, 947 N.W.2d 343 (2020).
The trial court's decision on the return of seized property is reviewed for an abuse of discretion. State v. Maestas, 11 Neb. App. 262, 647 N.W.2d 122 (2002).
29-819.
Seized property; transfer to another jurisdiction; when.Where seized property is no longer required as evidence in the prosecution of any complaint or information the court which has jurisdiction of such property may transfer the same to the jurisdiction of any other court, including courts of another state or federal courts, where it is shown to the satisfaction of the court that such property is required as evidence in any prosecution in such other court.
Source:Laws 1963, c. 161, § 8, p. 574.
Annotations
A harmonious reading of this section and section 29-818 is that references to jurisdiction in each are to jurisdiction over seized property, not subject matter jurisdiction. Huff v. Otto, 28 Neb. App. 646, 947 N.W.2d 343 (2020).
29-820.
Seized property;
disposition.(1) Unless other disposition is specifically
provided by law, when property seized or held is no longer required as evidence,
it shall be disposed of by the law enforcement agency on such showing as the
law enforcement agency may deem adequate, as follows:
(a) Property stolen, embezzled, obtained by false pretenses,
or otherwise obtained unlawfully from the rightful owner thereof shall be
restored to the owner;
(b) Money shall be restored to the owner unless it was used
in unlawful gambling or lotteries or it was used or intended to be used to
facilitate a violation of Chapter 28, article 4, in which case the money shall
be forfeited and disposed of as required by Article VII, section 7, of the
Constitution of Nebraska;
(c) Property which is unclaimed or the ownership of which
is unknown shall be sold at a public auction held by the officer having custody
thereof and the net proceeds disposed of as provided in subdivision (b) of
this subsection, as shall any money which is unclaimed or the ownership of
which is unknown;
(d) Except as provided in subsection
(2) of this section, articles of contraband shall be destroyed;
(e) Firearms, ammunition, explosives,
bombs, and like devices which have been used in the commission of crime shall
be destroyed; and
(f) Firearms
which have come into the law enforcement agency's possession through a seizure
or otherwise and (i) have not been used in the commission of crime, (ii) have
not been defaced or altered in any manner that violates any state or federal
law, (iii) may have a lawful use and be lawfully possessed, and (iv) are not
subject to section 29-440 shall be restored to the owner.
(2) When the following property is seized or held and is no
longer required as evidence, such property shall be disposed of on order of
the court as the court may deem adequate:
Goods which are declared
to be contraband but may reasonably be returned to a condition or state in
which such goods may be lawfully used, possessed, or distributed by the public.
(3) When any animal as defined by section 28-1008 is seized
or held and is no longer required as evidence, such animal may be disposed
of in such manner as the court may direct. The court may consider adoption
alternatives through humane societies or comparable institutions and the protection
of such animal's welfare. For a humane society or comparable institution to
be considered as an adoption alternative under this subsection, it must first
be licensed by the Department of Agriculture as having passed the inspection
requirements in the Commercial Dog and Cat Operator Inspection Act and paid
the fee for inspection under the act. The court may prohibit an adopting or
purchasing party from selling such animal for a period not to exceed one year.
(4) Unless otherwise provided by law, all other property shall
be disposed of in such manner as the court in its sound discretion shall direct.
Cross References
Commercial Dog and Cat Operator Inspection Act, see section 54-625.
Annotations
Traditional, or per se, contraband is defined as "objects the possession of which, without more, constitutes a crime." A claimant has no right to have per se contraband returned to him or her. Derivative contraband are articles which are not inherently illegal, but are used in an unlawful manner. State v. Zimmer, 311 Neb. 294, 972 N.W.2d 57 (2022).
This section applies only where the exclusive jurisdiction of a court under section 29-818 has not been invoked. State v. McGuire, 301 Neb. 895, 921 N.W.2d 77 (2018).
When criminal proceedings have terminated, the person from whom property was seized is presumed to have a right to its return, and the burden is on the government to show that it has a legitimate reason to retain the property. State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007).
Illegal gambling devices forfeited to the State constitute contraband, which this section requires the State to destroy. State v. Dodge City, 238 Neb. 439, 470 N.W.2d 795 (1991).
When criminal proceedings have terminated, the person from whom property was seized is presumed to have a right to its return, and the burden is on the government to show that it has a legitimate reason to retain the property. State v. Dubray, 24 Neb. App. 67, 883 N.W.2d 399 (2016).
29-821.
Sections; supplemental to other laws.The provisions of sections 29-812 to 29-821 relating to the disposition of seized property shall not be exclusive, but shall be supplemental to other laws on the subject.
Source:Laws 1963, c. 161, § 10, p. 575.
29-822.
Motion to suppress; filing; time; failure to file; effect; exception.Any person aggrieved by an unlawful search and seizure may move for return of the property so seized and to suppress its use as evidence. The motion shall be filed in the district court where a felony is charged and may be made at any time after the information or indictment is filed, and must be filed at least ten days before trial or at the time of arraignment, whichever is the later, unless otherwise permitted by the court for good cause shown. Where the charge is other than a felony, the motion shall be filed in the court where the complaint is pending, and must be filed at least ten days before trial or at the time of the plea to the complaint, whichever is the later, unless otherwise permitted by the court for good cause shown. Unless claims of unlawful search and seizure are raised by motion before trial as herein provided, all objections to use of the property as evidence on the ground that it was obtained by an unlawful search and seizure shall be deemed waived; Provided, that the court may entertain such motions to suppress after the commencement of trial where the defendant is surprised by the possession of such evidence by the state, and also may in its discretion then entertain the motion where the defendant was not aware of the grounds for the motion before commencement of the trial. In the event that the trial court entertains any such motion after the commencement of trial, the defendant shall be deemed to have waived any jeopardy which may have attached.
Source:Laws 1963, c. 155, § 1, p. 553.
Annotations
1. Waiver
2. Procedure
1. Waiver
The intention of this section is that motions to suppress evidence are to be ruled on and finally determined before trial, unless the motion is within the exceptions contained in the statute. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018).
The ten-day rule of this section is valid and operable; it prevails over inconsistent, local court rules. State v. Vaughan, 227 Neb. 753, 419 N.W.2d 876 (1988).
Objection to illegally seized evidence is waived if objection is not made at least 10 days prior to trial. State v. Madsen, 226 Neb. 722, 414 N.W.2d 280 (1987).
Failure to make timely motion to suppress is a waiver of such right where evidence not a surprise. State v. Donald, 199 Neb. 70, 256 N.W.2d 107 (1977).
Error claimed because of defendant's absence was held waived for reasons stated. State v. Turner, 194 Neb. 252, 231 N.W.2d 345 (1975).
A waiver of objections to evidence on the ground that it was seized in an unreasonable search occurs when no objection is made at least ten days before trial and where the exceptions herein have no application. State v. Stowell, 190 Neb. 615, 211 N.W.2d 130 (1973).
Failure to move for suppression of evidence seized unlawfully waives the objection. State v. Howell, 188 Neb. 687, 199 N.W.2d 21 (1972).
2. Procedure
Absent an exception, a failure to move for the suppression of evidence seized unlawfully waives the objection. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018).
After a ruling granting a motion to suppress has been appealed, the single-judge opinion on the ruling is binding on the trial court and the parties as a determination of the suppression issue in a subsequent trial. However, if the defendant wishes to reopen the motion to suppress, the defendant must (1) put the State and trial court on notice of such intention by filing a new motion to suppress at least 10 days before trial or (2) make a showing that the existence of one of the exceptions provided in this section excuses the 10-day requirement. State v. March, 265 Neb. 447, 658 N.W.2d 20 (2003).
The distinction between a motion to quash and a motion to suppress is not mere form over substance. The filing of a motion to quash clearly notifies the State that the defendant's challenge is to the propriety of the entire proceedings. In contrast to a motion to quash, a motion to suppress seeks to exclude certain evidence from being presented at trial. A motion to suppress, with certain exceptions, must be made in writing. State v. Kanarick, 257 Neb. 358, 598 N.W.2d 430 (1999).
There is no statutory requirement to file a second motion to suppress after the granting of a new trial where the new motion to suppress would be identical to the original motion. State v. Schoonmaker, 249 Neb. 330, 543 N.W.2d 194 (1996).
The validity of a search of a defendant's property depends upon whether the defendant's consent to do so was given voluntarily. State v. Graham, 241 Neb. 995, 492 N.W.2d 845 (1992).
The intention embodied in this section is that unless a motion to suppress falls within one of the statutorily specified exceptions, such a motion is to be ruled upon and finally determined before trial. State v. Giessinger, 235 Neb. 140, 454 N.W.2d 289 (1990).
It is clearly the intention of this section that motions to suppress evidence are to be ruled on and finally determined before trial, unless the motion is within the exceptions contained in the statute. State v. Harms, 233 Neb. 882, 449 N.W.2d 1 (1989).
A person against whom a search is directed and whose property is seized in a search has standing to challenge the validity of the search where the case against him depends upon the defendant's possession of the goods. State v. Van Ackeren, 194 Neb. 650, 235 N.W.2d 210 (1975).
Where defendant fails to timely move to suppress hereunder, he cannot secure the results of an order of suppression by a late motion to suppress testimony or to limit interrogation of his own witnesses on relevant and material matters. State v. Bartlett, 194 Neb. 502, 233 N.W.2d 904 (1975).
Unless within exceptions herein, motions to suppress evidence should be finally determined before trial, but the trial court may correct errors at the trial. State v. Pope, 192 Neb. 755, 224 N.W.2d 521 (1974).
An exception to the exclusionary rules of search and seizure is the rule of harmless error beyond a reasonable doubt. State v. Reed, 188 Neb. 815, 199 N.W.2d 707 (1972).
Trial court's action in permitting filing and hearing of defendant's motion to suppress evidence after time provided herein approved, but overruling of motion sustained on other grounds. State v. Huggins, 186 Neb. 704, 185 N.W.2d 849 (1971).
Section intends that motions to suppress evidence be determined before trial, but trial court be not precluded from correcting errors at trial. State v. Smith, 184 Neb. 363, 167 N.W.2d 568 (1969).
29-823.
Motion to suppress; issues of fact; trial.Issues of fact arising on motions to suppress shall be tried by the court without a jury, in a summary manner, on affidavits or otherwise, as the court may direct. No evidence shall be suppressed because of technical irregularities not affecting the substantial rights of the accused.
Source:Laws 1963, c. 155, § 2, p. 553.
Annotations
Henceforth, trial courts shall articulate in writing or from the bench their general findings when denying or granting a motion to suppress. State v. Osborn, 250 Neb. 57, 547 N.W.2d 139 (1996).
An order not containing a provision that the authorization to intercept calls shall be conducted in such a way so as to avoid and prevent interception of confidential information is not per se invalid absent a showing that any substantial right of the defendant has been violated. State v. Brennen, 214 Neb. 734, 336 N.W.2d 79 (1983).
Applications for successive wiretaps which failed to disclose earlier applications are technical irregularities only, not affecting substantial rights of the accused. State v. Kohout, 198 Neb. 90, 251 N.W.2d 723 (1977).
Evidence should not be suppressed because of technical irregularities not affecting the substantial rights of the accused. State v. Putnam, 178 Neb. 445, 133 N.W.2d 605 (1965).
29-824.
Motion to suppress; appeal; review; appeal after conviction.(1) In addition to any other right to appeal, the state shall have the right to appeal from an order granting a motion for the return of seized property and to suppress evidence in the manner provided in sections 29-824 to 29-826.
(2) If such motion has been granted in district court, the Attorney General or the county attorney or prosecuting attorney with the consent of the Attorney General may file his or her application with the Clerk of the Supreme Court asking for a summary review of the order granting the motion. The review shall be made by a judge of the Court of Appeals at chambers upon such notice, briefs, and argument as the judge directs, after which such judge shall enter his or her order affirming, reversing, or modifying the order submitted for review, and upon any trial on the general issue thereafter the parties and the trial court shall be bound by such order. Upon conviction after trial the defendant may on appeal challenge the correctness of the order by the judge.
(3) If such motion has been granted in the county court, the Attorney General or the county attorney or prosecuting attorney may file his or her application with the clerk of the district court in the district in which the motion has been granted asking for a summary review of the order granting the motion. The review shall be made by a judge of the district court upon such notice, briefs, and arguments as the judge directs, after which such judge shall enter his or her order affirming, reversing, or modifying the order submitted for review, and upon any trial on the general issue thereafter the parties and the trial court shall be bound by such order. Upon conviction after trial the defendant may on appeal challenge the correctness of the order by the judge.
Annotations
1. Motion to suppress
2. Appeal
3. Review
4. Miscellaneous
1. Motion to suppress
Motion to suppress evidence was improperly sustained. State v. Forney, 181 Neb. 757, 150 N.W.2d 915 (1967).
The trial court should not have suppressed evidence obtained by a law enforcement officer when he squeezed a backpack located in an overhead compartment on a public bus in order to smell the contents of the backpack to determine if it contained contraband. State v. Lancelotti, 8 Neb. App. 516, 595 N.W.2d 558 (1999).
2. Appeal
After a ruling granting a motion to suppress has been appealed, the single-judge opinion on the ruling is binding on the trial court and the parties as a determination of the suppression issue in a subsequent trial. However, if the defendant wishes to reopen the motion to suppress, the defendant must (1) put the State and trial court on notice of such intention by filing a new motion to suppress at least 10 days before trial or (2) make a showing that the existence of one of the exceptions provided in section 29-822 excuses the 10-day requirement. State v. March, 265 Neb. 447, 658 N.W.2d 20 (2003).
This section authorizes an interlocutory appeal by the State from the sustaining of a motion to suppress only when the motion is sustained in district court. The State must look to section 29-827 in regard to review of the sustaining of a motion to suppress in county court. State v. Dail, 228 Neb. 653, 424 N.W.2d 99 (1988).
Appeals by the state from an order suppressing evidence under section 84-705(12), R.R.S.1943, shall be made pursuant to section 29-824, R.R.S.1943. State v. Hinchion, DiBiase, Olsen, and Cullen, 207 Neb. 478, 299 N.W.2d 748 (1980).
On appeal to a single judge, under this section, the trial court's order suppressing evidence as involuntarily given, is affirmed. State v. McNitt, 207 Neb. 296, 298 N.W.2d 465 (1980).
If the state, after prevailing on motion to suppress, was again required to prove legality of search at trial, the state's right to appeal hereunder would be defeated in many cases. State v. Pope, 192 Neb. 755, 224 N.W.2d 521 (1974).
This section provides the State with the specific right of appealing a district court's ruling granting a motion to suppress. State v. Hood, 23 Neb. App. 208, 869 N.W.2d 383 (2015).
The docket fee requirement contained in section 25-2729 necessarily applies to appeal brought by a prosecuting attorney pursuant to this section and sections 29-825 and 29-826, because section 25-2728 does not expressly exclude this section and sections 29-825 and 29-826 from the application of section 25-2729. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004).
Where the State is appealing an order of a county court granting a motion for the return of seized property or to suppress evidence pursuant to sections 29-824 to 29-826, the State must comply with the standard procedures for appeal as provided in section 25-2729, as well as with the requirements specified within sections 29-824 to 29-826; failure to do so deprives the district court of subject matter jurisdiction to review the order. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004).
Upon conviction after the reversal of a suppression order, a defendant may raise the suppression issue before the Nebraska Court of Appeals and, if unsuccessful, again before the Nebraska Supreme Court. State v. March, 9 Neb. App. 907, 622 N.W.2d 694 (2001).
3. Review
An application for review, as provided in section 29-824 et seq., must be filed within the time set in the trial court's order setting the time within which the application must be filed, and the time set in that order may not exceed thirty days. State v. Goreham, 227 Neb. 460, 418 N.W.2d 234 (1988).
Order suppressing evidence may be reviewed by single Judge of Supreme Court. State v. Hagen, 180 Neb. 564, 143 N.W.2d 904 (1966).
4. Miscellaneous
A ruling in a pretrial hearing that a defendant's statement is admissible is not a final order that may be appealed from by a defendant. State v. Pointer, 224 Neb. 892, 402 N.W.2d 268 (1987).
Prosecuting attorney means any county attorney and also any city attorney or assistant city attorney in a city of the metropolitan class when such attorney is prosecuting any violation designated as a misdemeanor or traffic infraction. Deputy city attorney for city of any other class may not properly prosecute an appeal under this statute. State v. Peterson, 219 Neb. 866, 366 N.W.2d 780 (1985).
An opinion by a single judge of the Nebraska Court of Appeals is not an opinion of "the court", and therefore a motion for rehearing is not appropriate. State v. March, 9 Neb. App. 907, 622 N.W.2d 694 (2001).
For an officer to validly seize an item, it must be immediately apparent that the item is or contains incriminatory evidence. Observation of baggies within a fanny pack located on an individual late at night, absent observation of an incriminating substance inside the baggies or other incriminating circumstances, is insufficient to justify a seizure. State v. Runge, 8 Neb. App. 715, 601 N.W.2d 554 (1999).
29-825.
Motion to suppress; appeal; application.The application for review provided in section 29-824 shall be accompanied by a copy of the order of the trial court granting the motion to suppress and a bill of exceptions containing all of the evidence, including affidavits, considered by the trial court in its ruling on the motion, and so certified by the trial court. The application shall be filed with the Clerk of the Supreme Court, if the trial court is the district court, or with the clerk of the district court, if the trial court is the county court, within such time as may be ordered by the trial court, which in fixing such time shall take into consideration the length of time required to prepare the bill of exceptions, and shall also consider whether the defendant is in jail or whether he or she is on bail, but in no event shall more than thirty days be given in which to file such application.
Annotations
This section outlines the process for filing with the appellate court an application of review of an order granting a motion to suppress. State v. Hood, 23 Neb. App. 208, 869 N.W.2d 383 (2015).
This section specifically requires the appealing party, not the court reporter, to timely file the relevant documents with the clerk of the appellate court. State v. Hood, 23 Neb. App. 208, 869 N.W.2d 383 (2015).
The docket fee requirement contained in section 25-2729 necessarily applies to appeal brought by a prosecuting attorney pursuant to this section and sections 29-824 and 29-826, because section 25-2728 does not expressly exclude this section and sections 29-824 and 29-826 from the application of section 25-2729. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004).
Where the State is appealing an order of a county court granting a motion for the return of seized property or to suppress evidence pursuant to sections 29-824 to 29-826, the State must comply with the standard procedures for appeal as provided in section 25-2729, as well as with the requirements specified within sections 29-824 to 29-826; failure to do so deprives the district court of subject matter jurisdiction to review the order. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004).
An appellate court lacks jurisdiction where the State failed to file a transcript of the relevant evidence with the appellate court when filing an application for review. State v. Ruiz-Medina, 8 Neb. App. 529, 597 N.W.2d 403 (1999).
29-826.
Motion to suppress; appeal; time limit; order for custody.In making an order granting a motion to suppress and to return property, the trial court shall in such order fix a time, not exceeding ten days, in which the county attorney or other prosecuting attorney may file a notice with the clerk of such court of his or her intention to seek a review of the order. Upon the filing of such notice the trial court shall fix the time in which the application for review shall be filed with the appellate court, and shall make an appropriate order for custody of the property pending completion of the review.
Annotations
State may appeal an order sustaining a motion to suppress evidence. State v. Hagen, 180 Neb. 564, 143 N.W.2d 904 (1966).
This section gives the district court the authority to establish time limits for the State to file a notice of intent with the clerk of the district court seeking review of an order granting a motion to suppress and to file the application with the appellate court. State v. Hood, 23 Neb. App. 208, 869 N.W.2d 383 (2015).
The docket fee requirement contained in section 25-2729 necessarily applies to appeal brought by a prosecuting attorney pursuant to this section and sections 29-824 and 29-825, because section 25-2728 does not expressly exclude this section and sections 29-824 and 29-825 from the application of section 25-2729. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004).
Where a county court fails to fix a time in which the State may appeal under this section, the State must file its notice of intention to seek review of the county court's order within 10 days; failure to do so deprives the district court of subject matter jurisdiction to hear the State's appeal. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004).
Where the State is appealing an order of a county court granting a motion for the return of seized property or to suppress evidence pursuant to sections 29-824 to 29-826, the State must comply with the standard procedures for appeal as provided in section 25-2729, as well as with the requirements specified within sections 29-824 to 29-826; failure to do so deprives the district court of subject matter jurisdiction to review the order. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004).
29-827.
Repealed. Laws 1998, LB 218, § 29.
29-828.
Search for weapons; when authorized.Where the circumstances reasonably indicate to an officer of the law that a search of an individual for weapons is indicated in order to protect the life of such officer such search for weapons may lawfully be made.
Source:Laws 1963, c. 156, § 1, p. 556.
29-829.
Stop and search of person for dangerous weapon; when authorized; peace officer, defined.A peace officer may stop any person in a public place whom he reasonably suspects of committing, who has committed, or who is about to commit a crime and may demand of him his name, address and an explanation of his actions. When a peace officer has stopped a person for questioning pursuant to this section and reasonably suspects he is in danger of life or limb, he may search such person for a dangerous weapon. If the peace officer finds such a weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of questioning, at which time he shall either return it, if lawfully possessed, or arrest such person. For purposes of this section, peace officer shall include credentialed conservation officers of the Game and Parks Commission.
Source:Laws 1965, c. 132, § 1, p. 471.
Annotations
1. Detention of person
2. Search
3. Miscellaneous
1. Detention of person
Totality of circumstances provided sufficient justification for investigatory stop where defendant fit "profile" of burglary suspect and engaged in specific activities which aroused the suspicions of the police. State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993).
For a detention pursuant to this section to be lawful and justifiable, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. State v. Bridge, 234 Neb. 781, 452 N.W.2d 542 (1990).
A brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts known to the officer at the time. State v. DeJesus, 216 Neb. 907, 347 N.W.2d 111 (1984).
An investigative stop under this provision is justified by objective manifestation that the person is, has been, or is about to be engaged in criminal activity. To determine if the cause is sufficient to authorize a stop, the totality of the circumstances must be considered. State v. Ebberson, 209 Neb. 41, 305 N.W.2d 904 (1981).
Informal detention for investigation may be lawful although probable cause for formal arrest may not exist. State v. Von Suggs, 196 Neb. 757, 246 N.W.2d 206 (1976).
A peace officer may stop any person, whom he suspects, in a public place, and demand his name, address, and an explanation of his actions. State v. Brewer, 190 Neb. 667, 212 N.W.2d 90 (1973).
Peace officer may stop person in public place whom he reasonably suspects of committing, having committed, or is about to commit a crime and may demand his name, address, and an explanation of his actions. State v. McCune, 189 Neb. 165, 201 N.W.2d 852 (1972).
Detention and search without a warrant based on statements of informer and observations of the officers was proper. State v. Goings, 184 Neb. 81, 165 N.W.2d 366 (1969).
Peace officer may stop a person for questioning whom he reasonably suspects of having committed or is about to commit a crime. State v. Carpenter, 181 Neb. 639, 150 N.W.2d 129 (1967).
Informal detention is permissible in spite of lack of probable cause. State v. Hoffman, 181 Neb. 356, 148 N.W.2d 321 (1967).
2. Search
Where four officers were required to subdue defendant who ran from investigatory stop which was justified by reasonable articulable suspicion, it was also reasonable to pat defendant down for a weapon. State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993).
During an investigatory stop, officers may search a suspect's vehicle in order to secure their safety or the safety of another if they have reasonable belief, based on articulable facts, that they or other persons are in danger. State v. Gross, 225 Neb. 798, 408 N.W.2d 297 (1987).
The search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief, based on specific and articulable facts, which reasonably warrants the officer to believe the suspect may gain immediate control of weapons. State v. Pierce and Wells, 215 Neb. 512, 340 N.W.2d 122 (1983).
Investigative stop and search of auto by police held unconstitutional where officer had no reasonable suspicion the occupants were committing, had committed, or were about to commit a crime. State v. Colgrove, 198 Neb. 319, 253 N.W.2d 20 (1977).
3. Miscellaneous
The officers' actions in parking their car behind the appellant's vehicle, approaching the appellant and a companion with guns holstered and identifying themselves as officers, and then inquiring whether either possessed a controlled substance or a large amount of cash were not tantamount to an arrest and did not require probable cause, but instead required a lesser standard, namely, that the officers possess a particularized and objective basis for suspecting the person stopped of criminal activity. State v. Longa, 211 Neb. 356, 318 N.W.2d 733 (1982).
29-830.
Inspection warrant, defined.An inspection warrant is an order in writing in the name of the people, signed by a judge of a court of record, directed to a peace officer as defined in section 29-831, and commanding him to conduct any inspection required or authorized by state or local law or regulation relating to health, welfare, fire or safety.
Source:Laws 1969, c. 231, § 1, p. 858.
Cross References
Chemigation Act, Nebraska, enforcement, see section 46-1124.
Controlled premises, inspection pursuant to Uniform Controlled Substances Act, see section 28-428.
Energy Code, Nebraska, enforcement, see section 81-1617.
Plant Protection and Plant Pest Act, enforcement, see section 2-1091.
29-831.
Peace officer, defined.As used in sections 29-830 to 29-835, unless the context otherwise requires:
All state, county, city and village officers and their agents and employees, charged by statute or municipal ordinance with powers or duties involving inspection of real or personal property, building premises and contents, including but not limited by enumeration to housing, electrical, plumbing, heating, gas, fire, health, food, zoning, pollution, water, and weights and measures inspections, shall be peace officers for the purpose of applying for, obtaining and executing inspection warrants.
Source:Laws 1969, c. 231, § 2, p. 859.
29-832.
Inspection warrant; when issued.Inspection warrants shall be issued only upon showing that consent to entry for inspection purposes has been refused. In emergency situations neither consent nor a warrant shall be required.
Source:Laws 1969, c. 231, § 3, p. 859.
29-833.
Inspection warrant; issuance; procedure.An inspection warrant shall be issued only by a judge of a court of record upon reasonable cause, supported by affidavit describing the place and purpose of inspection. The judge may examine the applicant and other witnesses, on oath, to determine sufficient cause for inspection.
Source:Laws 1969, c. 231, § 4, p. 859.
29-834.
Inspection warrants; laws applicable.All general laws pertaining to search warrants, including but not limited to the filing costs involved and the conditions and time for return, shall be applicable to inspection warrants, unless in conflict with sections 29-830 to 29-833.
Source:Laws 1969, c. 231, § 5, p. 859.
29-835.
Violations; penalty.Any person who willfully refuses to permit, interferes with, or prevents any inspection authorized by inspection warrant shall be guilty of a Class III misdemeanor.
29-901.
Bail; personal recognizance; appointment of counsel; conditions; pretrial release program; conditions.(1) Except as provided in subsection (2) of this section, any bailable defendant shall be ordered released from custody pending judgment on his or her personal recognizance unless the judge determines in the exercise of his or her discretion that such a release will not reasonably assure the appearance of the defendant as required or that such a release could jeopardize the safety and maintenance of evidence or the safety of victims, witnesses, or other persons in the community.
(2)(a) This subsection applies to any bailable defendant who is charged with one or more Class IIIA, IV, or V misdemeanors or violations of city or county ordinances, except when:
(i) The victim is an intimate partner as defined in section 28-323; or
(ii) The defendant is charged with one or more violations of section 60-6,196 or 60-6,197 or city or village ordinances enacted in conformance with section 60-6,196 or 60-6,197.
(b) Any bailable defendant described in this subsection shall be ordered released from custody pending judgment on his or her personal recognizance or under other conditions of release, other than payment of a bond, unless:
(i) The defendant has previously failed to appear in the instant case or any other case in the previous six months;
(ii) The judge determines in the exercise of his or her discretion that such a release will not reasonably assure the appearance of the defendant as required or that such a release could jeopardize the safety and maintenance of evidence or the safety of the defendant, victims, witnesses, or other persons; and
(iii) The defendant was arrested pursuant to a warrant.
(3) The court shall consider all methods of bond and conditions of release to avoid pretrial incarceration. If the judge determines that the defendant shall not be released on his or her personal recognizance, the judge shall consider the defendant's financial ability to pay a bond and shall impose the least onerous of the following conditions that will reasonably assure the defendant's appearance or that will eliminate or minimize the risk of harm to others or the public at large:
(a) Place the defendant in the custody of a designated person or organization agreeing to supervise the defendant;
(b) Place restrictions on the travel, association, or place of abode of the defendant during the period of such release; or
(c) Require, at the option of any bailable defendant, either of the following:
(i) The execution of an appearance bond in a specified amount and the deposit with the clerk of the court in cash of a sum not to exceed ten percent of the amount of the bond, ninety percent of such deposit to be returned to the defendant upon the performance of the appearance or appearances and ten percent to be retained by the clerk as appearance bond costs, except that when no charge is subsequently filed against the defendant or if the charge or charges which are filed are dropped before the appearance of the defendant which the bond was to assure, the entire deposit shall be returned to the defendant. If the bond is subsequently reduced by the court after the original bond has been posted, no additional appearance bond costs shall be retained by the clerk. The difference in the appearance bond costs between the original bond and the reduced bond shall be returned to the defendant. In no event shall the deposit be less than twenty-five dollars. Whenever jurisdiction is transferred from a court requiring an appearance bond under this subdivision to another state court, the transferring court shall transfer the ninety percent of the deposit remaining after the appearance bond costs have been retained. No further costs shall be levied or collected by the court acquiring jurisdiction; or
(ii) The execution of a bail bond with such surety or sureties as shall seem proper to the judge or, in lieu of such surety or sureties, at the option of such person, a cash deposit of such sum so fixed, conditioned for his or her appearance before the proper court, to answer the offense with which he or she may be charged and to appear at such times thereafter as may be ordered by the proper court. The cash deposit shall be returned to the defendant upon the performance of all appearances.
(4) If the court requires the defendant to execute an appearance bond requiring the defendant to post money or requires the defendant to execute a bail bond, the court shall appoint counsel for the defendant if the court finds the defendant is financially unable to pay the amount required and is indigent.
(5) If the amount of bail is deemed insufficient by the court before which the offense is pending, the court may order an increase of such bail and the defendant shall provide the additional undertaking, written or cash, to secure his or her release. All recognizances in criminal cases shall be in writing and be continuous from term to term until final judgment of the court in such cases and shall also extend, when the court has suspended execution of sentence for a limited time, as provided in section 29-2202, or, when the court has suspended execution of sentence to enable the defendant to apply for a writ of error to the Supreme Court or Court of Appeals, as provided in section 29-2301, until the period of suspension has expired. When two or more indictments or informations are returned against the same person at the same term of court, the recognizance given may be made to include all offenses charged therein. Each surety on such recognizance shall be required to justify under oath in a sum twice the amount of such recognizance and give the description of real estate owned by him or her of a value above encumbrance equal to the amount of such justification and shall name all other cases pending in which he or she is a surety. No one shall be accepted as surety on recognizance aggregating a sum in excess of his or her equity in the real estate, but such recognizance shall not constitute a lien on the real estate described therein until judgment is entered thereon against such surety.
(6) In order to assure compliance with the conditions of release referred to in subsection (3) of this section, the court may order a defendant to be supervised by a person, an organization, or a pretrial services program approved by the county board. A court shall waive any fees or costs associated with the conditions of release or supervision if the court finds the defendant is unable to pay for such costs. Eligibility for release or supervision by such pretrial release program shall under no circumstances be conditioned upon the defendant's ability to pay. While under supervision of an approved entity, and in addition to the conditions of release referred to in subsection (3) of this section, the court may impose the following conditions:
(a) Periodic telephone contact by the defendant with the organization or pretrial services program;
(b) Periodic office visits by the defendant to the organization or pretrial services program;
(c) Periodic visits to the defendant's home by the organization or pretrial services program;
(d) Mental health or substance abuse treatment for the defendant, including residential treatment, if the defendant consents or agrees to the treatment;
(e) Periodic alcohol or drug testing of the defendant;
(f) Domestic violence counseling for the defendant, if the defendant consents or agrees to the counseling;
(g) Electronic or global-positioning monitoring of the defendant;
(h) Participation in a 24/7 sobriety program under the 24/7 Sobriety Program Act; and
(i) Any other supervision techniques shown by research to increase court appearance and public safety rates for defendants released on bond.
(7) The incriminating results of any drug or alcohol test or any information learned by a representative of an organization or program shall not be admissible in any proceeding, except for a proceeding relating to revocation or amendment of conditions of bond release.
Source:G.S.1873, c. 58, §§ 346 to 348, p. 802; R.S.1913, § 9003; Laws 1921, c. 203, § 1, p. 733; C.S.1922, § 10027; C.S.1929, § 29-901; R.S.1943, § 29-901; Laws 1951, c. 87, § 1, p. 250; Laws 1953, c. 90, § 1, p. 261; Laws 1961, c. 132, § 1, p. 384;
Laws 1972, LB 1032, § 174; Laws 1974, LB 828, § 1; Laws 1975, LB 284, § 2; Laws 1984, LB 773, § 1; Laws 1991, LB 732, § 74;
Laws 1999, LB 51, § 1; Laws 2009, LB63, § 23; Laws 2010, LB771, § 15; Laws 2017, LB259, § 2; Laws 2020, LB881, § 14; Laws 2021, LB271, § 7.
Cross References
Appeals, suspension of sentence, see section 29-2301.
Forfeiture of recognizance, see sections 29-1105 to 29-1110.
Suspension of sentence, see section 29-2202.
24/7 Sobriety Program Act, see section 60-701.
Annotations
1. Applicability of section
2. Bonds
3. Discretion of court
4. Miscellaneous
1. Applicability of section
This section does not apply after judgment has been rendered. State v. Woodward, 210 Neb. 740, 316 N.W.2d 759 (1982).
This section does not apply to prisoner held under extradition warrant. In re Application of Campbell, 147 Neb. 382, 23 N.W.2d 698 (1946).
2. Bonds
Obligation of surety on bail bond is to have principal appear forthwith, where no date is fixed. State v. Casey, 180 Neb. 888, 146 N.W.2d 370 (1966).
Since 1953, a cash appearance bond may be given. Koop v. City of Omaha, 173 Neb. 633, 114 N.W.2d 380 (1962).
In prosecution for violation of National Prohibition Act where bail bond had been declared forfeited before repeal of act, surety was liable. La Grotta v. United States, 77 F.2d 673 (8th Cir. 1935).
3. Discretion of court
Not error for court to remand defendant on bail to custody following jury instructions, but prior to verdict. State v. Starks, 198 Neb. 433, 253 N.W.2d 166 (1977).
Fixation of the amount of bail is a matter resting in the sound discretion of the trial court. Kennedy v. Corrigan, 169 Neb. 586, 100 N.W.2d 550 (1960).
Acceptance and approval of bail bonds is a judicial function. Summit Fidelity & Surety Co. v. Nimtz, 158 Neb. 762, 64 N.W.2d 803 (1954).
Order fixing amount of bail will not be reviewed on habeas corpus unless it appears that amount is unreasonably great and disproportionate to the offense charged. In re Scott, 38 Neb. 502, 56 N.W. 1009 (1893).
4. Miscellaneous
The deposit of cash in lieu of or in support of bail under this section is for the purpose only of ensuring the defendant's appearance in court when required, and upon full compliance with any such court order and release of bail, the statutory refund must be made. State v. McKichan, 219 Neb. 560, 364 N.W.2d 47 (1985).
Court when releasing a defendant on bond need only inform defendant of special or unusual condition of his bail attached thereto and no duty exists to inform the defendant of obvious condition to return to the court as ordered nor inform defendant of possible penalty for failure to appear. State v. King, 214 Neb. 855, 336 N.W.2d 576 (1983).
Record did not show that cash deposit was made. State v. Mills, 179 Neb. 853, 140 N.W.2d 826 (1966).
An appearance bond (less any applicable statutory fee) must be refunded to the defendant rather than peremptorily applied to costs where the defendant appeared as ordered and judgment had been entered against him. State v. Zamarron, 19 Neb. App. 349, 806 N.W.2d 128 (2011).
Surety was estopped to question irregularities of the proceeding. Berkowitz v. United States, 90 F.2d 881 (8th Cir. 1937).
29-901.01.
Conditions of release; how determined.In determining which condition or conditions of release shall reasonably assure appearance and deter possible threats to the safety and maintenance of evidence or the safety of victims, witnesses, or other persons in the community, the judge shall, on the basis of available information, consider the defendant’s financial ability to pay in setting the amount of bond. The judge may also take into account the nature and circumstances of the offense charged, including any information to indicate that the defendant might engage in additional criminal activity or pose a threat to himself or herself, yet to be collected evidence, alleged victims, potential witnesses, or members of the general public, the defendant's family ties, employment, the length of the defendant's residence in the community, the defendant's record of criminal convictions, and the defendant's record of appearances at court proceedings or of flight to avoid prosecution or of failure to appear at court proceedings.
29-901.02.
Release; order; contents.Any judge who shall authorize the release of a defendant under section 29-901 shall issue a written order containing a statement of the condition or conditions imposed, shall inform the defendant of the penalties for violating any of the conditions of such release, and shall advise the defendant that a warrant for his arrest shall be issued immediately upon such violation.
Annotations
Court when releasing a defendant on bond need only inform defendant of special or unusual condition of his bail attached thereto and no duty exists to inform the defendant of obvious condition to return to the court as ordered nor inform defendant of possible penalty for failure to appear. State v. King, 214 Neb. 855, 336 N.W.2d 576 (1983).
29-901.03.
Conditions of release; review; procedure.When a defendant first appears before a judge pursuant to section 29-901, he shall be advised of his right to obtain review of the conditions of release imposed if he is unable to fulfill such conditions and remains in custody for more than twenty-four hours thereafter. Any defendant who shall remain in custody for more than twenty-four hours after a judge other than a district court judge imposes bail or any other condition of release, as a result of his inability to fulfill such condition or conditions, may request a review by the judge who imposed the conditions and, upon such request, the defendant shall be brought before the judge at the first regular court day. If the defendant is indigent and unable to retain legal counsel, the judge shall appoint an attorney to represent the defendant for the purpose of such review. Unless the conditions of release are amended and the defendant is thereupon released, the judge shall set forth in writing the reasons for requiring such condition or conditions. Any defendant who shall be ordered released by a judge other than a district court judge on a condition which requires that he return to custody after specified hours shall, upon application, be entitled to a review by the judge who imposed the condition in the same manner as a defendant who remains in full-time custody. In the event that the judge who imposed the condition or conditions of release is not available, any other judge in the district or of the same court may review such conditions.
29-901.04.
Conditions of release; amendment; review.Any judge who shall order the release of a defendant on any condition specified in section 29-901 may at any time amend his order to impose additional or different conditions of release, but if the imposition of different or additional conditions results in the detention of the defendant as a result of his inability to meet such conditions, the provisions of section 29-901.03 shall apply.
29-901.05.
Bail; uniform schedule; how adopted; payment; procedure.(1) It shall be the duty of the judges of the county court in each county to prepare and adopt, by a majority vote, a schedule of bail for all misdemeanor offenses and such other offenses as the judges deem necessary. It shall contain a list of such offenses and the amounts of bail applicable thereto as the judges determine to be appropriate. If the schedule does not list all misdemeanor and other offenses specifically, it shall contain a general clause for misdemeanors and a separate one for any other offenses providing for designated amounts of bail as the judges of the county determine to be appropriate for all such offenses. The schedule of bail may be revised from time to time by the judges of the county, and the presiding county court judge at each county seat shall call not more than two meetings nor less than one meeting each year of all judges of the county court in the county for the purpose of establishing or revising a countywide uniform bail schedule. A copy of the schedule shall be sent to the officer in charge of the county jail and to the officer in charge of each city jail within the county.
(2) When bail has been set by a judge for a particular offense or offender, any sheriff or other peace officer may take bail in accordance with the provisions of section 29-901 and release the offender to appear in accordance with the conditions of the bail bond, the notice to appear, or the summons. Such officer shall give a receipt to the offender for the bail so taken and within a reasonable time deposit such bail with the clerk of the court having jurisdiction of the offense.
29-901.06.
Bailable defendant; duty of court to inform of rights and duties.When a bailable defendant appears at any judicial proceeding in which such defendant's bail is being considered, the judge at such proceeding shall inform the defendant of the condition or conditions imposed on his release, the penalties for violating any of the conditions of such release, and any options or alternatives available to such defendant.
Annotations
Court when releasing a defendant on bond need only inform defendant of special or unusual condition of his bail attached thereto and no duty exists to inform the defendant of obvious condition to return to the court as ordered nor inform defendant of possible penalty for failure to appear. State v. King, 214 Neb. 855, 336 N.W.2d 576 (1983).
29-902.
Bail; proceeding for taking.For taking such bail, the judge may, by his special warrant under his hand and seal, require the sheriff or jailer to bring such accused before him at the courthouse of the proper county at such time as in such warrant the judge may direct.
Source:G.S.1873, c. 58, § 347, p. 802; R.S.1913, § 9004; C.S.1922, § 10028; C.S.1929, § 29-902; R.S.1943, § 29-902.
29-902.01.
Presiding judge of certain county courts; designate a judge on call; custodial officer; duties.(1) The presiding judge of the county court in each county having a population of four hundred thousand or more inhabitants as determined by the most recent federal decennial census shall, as often as is necessary, meet and designate on a schedule not less than one judge of the county court to be reasonably available on call for the setting of orders for discharge from actual custody upon bail, the issuance of search warrants, and for such other matters as may be deemed appropriate, at all times when a court is not in session in the county.
(2) The officer in charge of a jail, or a person such officer designates, in which an arrested person is held in custody shall assist the arrested person or such person's attorney in contacting the judge on call as soon as possible for the purpose of obtaining release on bail.
29-903.
Bail; amount; pretrial release agency; release recommendation; release without bond; when.In fixing the amount of bail, the judge admitting to the same shall be governed in the amount and quality of bail required by the direction of the district court in all cases where such court shall have made any order or direction in that behalf. In the event that the district court shall designate an official pretrial release agency for the district, the judge may give consideration to a report and recommendation of such agency and in the event that such agency should recommend the release of the prisoner on his own recognizance, the court may order release of such prisoner without the necessity of posting a cash deposit or requiring the sureties set out in section 29-901.
Source:G.S.1873, c. 58, § 348, p. 802; R.S.1913, § 9005; C.S.1922, § 10029; C.S.1929, § 29-903; R.S.1943, § 29-903;
Laws 1971, LB 316, § 1; Laws 1972, LB 1248, § 1; Laws 1974, LB 828, § 8.
29-904.
Recognizance; deposit with clerk; discharge of prisoner.In all cases when a judge or examining court shall recognize a prisoner under the provisions of the three sections 29-901, 29-902, and 29-903, he shall forthwith deposit with the clerk of the proper court the recognizance so taken, and also a warrant directed to the jailer requiring him to discharge the prisoner.
Source:G.S.1873, c. 58, § 349, p. 803; R.S.1913, § 9006; C.S.1922, § 10030; C.S.1929, § 29-904; R.S.1943, § 29-904.
29-905.
Surrender of accused by surety to court; discharge of surety; new recognizance; conditions.When any person, who is surety in a recognizance for the appearance of any defendant before any court in this state, desires to surrender the defendant, he shall, by delivering the defendant in open court, be discharged from any further responsibility on such recognizance; and the defendant shall be committed by the court to the jail of the county, unless he shall give a new recognizance, with good and sufficient sureties in such amount as the court may determine, conditioned as the original recognizance.
Source:G.S.1873, c. 58, § 350, p. 803; R.S.1913, § 9007; C.S.1922, § 10031; C.S.1929, § 29-905; R.S.1943, § 29-905.
Annotations
Section applies to giving bond for personal appearance of defendant prior to the trial and not after. State v. Swedland, 114 Neb. 280, 207 N.W. 29 (1926).
Rearrest discharges liability of sureties on recognizance. Smith v. State, 12 Neb. 309, 11 N.W. 317 (1882).
29-906.
Surrender of accused by surety to sheriff; authority.In all cases of bail for the appearance of any person or persons charged with any criminal offense, the surety or sureties of such person or persons may, at any time before judgment is rendered against him or them, seize and surrender such person or persons charged as aforesaid to the sheriff of the county wherein the recognizance shall be taken.
Source:G.S.1873, c. 58, § 351, p. 803; R.S.1913, § 9008; C.S.1922, § 10032; C.S.1929, § 29-906; R.S.1943, § 29-906.
Annotations
Section applies to giving bond for personal appearance of defendant prior to the trial and not after. State v. Swedland, 114 Neb. 280, 207 N.W. 29 (1926).
29-907.
Surrender of accused by surety to sheriff; duty of sheriff; discharge of surety.It shall be the duty of such sheriff, on such surrender and the delivery to him of a certified copy of the recognizance by which such surety or sureties are bound, to take such person or persons so charged as aforesaid into custody, and by writing acknowledge such surrender, and thereupon the surety or sureties shall be discharged from any such recognizance, upon payment of all costs occasioned thereby.
Source:G.S.1873, c. 58, § 352, p. 803; R.S.1913, § 9009; C.S.1922, § 10033; C.S.1929, § 29-907; R.S.1943, § 29-907.
29-908.
Bail, recognizance, or conditional release; failure to appear; penalties.Whoever is charged with a felony and is released from custody under bail, recognizance, or a conditioned release and willfully fails to appear before the court granting such release when legally required or to surrender himself within three days thereafter, shall be guilty of a Class IV felony, in addition to any other penalties or forfeitures provided by law.
Whoever is charged with a misdemeanor or violation of city or village ordinance, conviction of which would carry a jail sentence of more than ninety days, who is released from custody under bail or recognizance or conditioned release and who willfully fails to appear before the court granting such release when legally required to surrender himself or within three days thereafter, shall be guilty of a Class II misdemeanor, in addition to any other penalties or forfeitures provided by law.
Annotations
When a defendant fails to appear for a preliminary hearing on Thursday, and then is arrested on the following Monday, the evidence is sufficient to find that the defendant failed to surrender within 3 days of his or her failure to appear. State v. Hassan, 309 Neb. 644, 962 N.W.2d 210 (2021).
As used in this section, failure to appear before the court includes a convicted defendant who willfully fails to comply with a sentencing court's order to report to a court-designated officer who is legally authorized to take him into custody so that he may begin his sentence after a conditioned release or a release under recognizance. State v. Moss, 240 Neb. 21, 480 N.W.2d 198 (1992).
Court when releasing a defendant on bond need only inform defendant of special or unusual condition of his bail attached thereto and no duty exists to inform the defendant of obvious condition to return to the court as ordered nor inform defendant of possible penalty for failure to appear. State v. King, 214 Neb. 855, 336 N.W.2d 576 (1983).
A defendant who is released following imposition of sentence under a stay of execution with orders to reappear upon further order of the court has been "released from custody under a conditioned release" within the meaning of this section, and violates said provision by failing to appear when so ordered by the court. State v. Robinson, 209 Neb. 726, 311 N.W.2d 7 (1981).
A person already found guilty of a felony is still a person "charged with a felony," under the terms of this section. State v. McDaniel, 205 Neb. 53, 285 N.W.2d 841 (1979).
29-909.
Pretrial release agency; authority to designate; recommendations; recognizance; when.The district courts of this state are authorized to designate an official pretrial release agency for a district, or for any county within a district, whenever the court is satisfied that such agency can render competent and effective assistance to the court in making its determination of the terms and conditions under which any court should release a prisoner from jail prior to trial. When such a pretrial release agency has been designated, the judge of any court within the district or county in which such agency has been authorized to operate may give consideration to a report and recommendation of such agency and in the event that such agency should recommend the release of the prisoner on his own recognizance, the court may order the release of the prisoner without the necessity of posting a cash deposit or requiring any surety set out in section 29-901. Nothing in this section shall restrict any court from releasing a prisoner on his own recognizance, whether or not he has received a report or recommendation from a pretrial release agency, if the judge determines that such type of release would adequately serve the ends of justice.
29-910.
Pretrial release agency; designation; order; contents.In the event the district court shall designate an official pretrial release agency, an order designating such agency shall be filed with the clerk of each district court in such district and shall affect all courts within such district. The order shall set out the name of the agency, its sponsoring agencies, if any, and the terms and conditions under which such agency shall operate.
29-1001.
Prisoner; where confined.Whenever it shall be lawful and necessary to confine any prisoner in custody previous to conviction upon a criminal accusation, or in custody for contempt or alleged contempt of court, or upon an attachment by order of a court or judge, or otherwise in lawful custody, or upon conviction for any offense, the officer or person having him in such custody may convey him to and confine him in the jail of any county in this state, or other secure and convenient place of confinement in this state, to be procured by such officer or person having such prisoner in custody.
Source:G.S.1873, c. 58, § 377, p. 810; R.S.1913, § 9010; C.S.1922, § 10034; C.S.1929, § 29-1001; R.S.1943, § 29-1001.
Annotations
Counties are obligated to pay costs and expenses of prosecutions, including fees and expenses of attorneys appointed to represent indigent defendants in criminal cases, and there is no requirement that a property tax be levied therefor. Kovarik v. County of Banner, 192 Neb. 816, 224 N.W.2d 761 (1975).
Transfer of prisoner sentenced to county jail governed by this section. State v. Curry, 184 Neb. 682, 171 N.W.2d 163 (1969).
Sheriff may hold person in custody for contempt of court in secure and convenient place of confinement. Rhodes v. Sigler, 172 Neb. 439, 109 N.W.2d 731 (1961).
In confining persons to jail in another county, when there is no secure jail in county, sheriff acts in official capacity, and surety on bond is liable for money received and not accounted for. Martin v. Seeley, 15 Neb. 136, 17 N.W. 346 (1883).
Where sheriff has custody of prisoners from two different counties for safekeeping, compensation is no greater than if they came from same county. James v. Lincoln County, 5 Neb. 38 (1876).
29-1002.
Repealed. Laws 1998, LB 695, § 10.
29-1003.
Repealed. Laws 1998, LB 695, § 10.
29-1004.
Repealed. Laws 1998, LB 695, § 10.
29-1005.
Repealed. Laws 1998, LB 695, § 10.
29-1006.
Repealed. Laws 1990, LB 829, § 3.
29-1007.
Custody awaiting trial; deadline; release after hearing.A defendant charged with any offense or offenses shall not be held in custody awaiting trial on such offense or offenses for a period of time longer than the maximum possible sentence of imprisonment authorized for such offense or offenses. On the next judicial day after expiration of such deadline, the defendant shall be released on such defendant's personal recognizance, subject to conditions of release the court may impose after a hearing.
29-1101.
Repealed. Laws 1953, c. 88, § 6.
29-1102.
Repealed. Laws 1953, c. 88, § 6.
29-1103.
Repealed. Laws 1953, c. 88, § 6.
29-1104.
Repealed. Laws 1953, c. 88, § 6.
29-1105.
Recognizance forfeited; recovery notwithstanding defects.No action brought on any recognizance shall be barred or defeated, nor shall judgment thereon be reversed by reason of any neglect or omission to note or record the default, nor by reason of any defect in the form of the recognizance if it sufficiently appears from the tenor thereof at what court the party or witness was bound to appear and that the court or officer before whom it was taken was authorized by law to require and take such recognizance.
Source:G.S.1873, c. 58, § 388, p. 812; R.S.1913, § 9019; C.S.1922, § 10043; R.S.1943, § 29-1105.
Annotations
Lack of specific date for appearance in bail bond did not operate to relieve surety from liability. State v. Casey, 180 Neb. 888, 146 N.W.2d 370 (1966).
29-1106.
Recognizance forfeited; when.When there is a breach of condition of a recognizance, the court shall declare a forfeiture of the bail.
Source:Laws 1953, c. 88, § 1, p. 259.
Annotations
When the defendant failed to appear in court as his bond required, the liability on the bond became absolute and forfeiture was proper. State v. Hart, 198 Neb. 164, 252 N.W.2d 139 (1977).
Bail bond was properly forfeited where defendant absconded during trial of case. State v. Reed, 178 Neb. 370, 133 N.W.2d 591 (1965).
Action of district court in entering judgment in excess of penalty on bond did not deprive court of jurisdiction. State v. Morse, 171 Neb. 87, 105 N.W.2d 572 (1960).
On breach of condition of recognizance, court should declare forfeiture. State v. Konvalin, 165 Neb. 499, 86 N.W.2d 361 (1957); State v. Honey, 165 Neb. 494, 86 N.W.2d 187 (1957).
Appeal bond properly forfeited where defendant breached condition that he not violate the law. Trial court did not abuse its discretion by prescribing that the defendant not violate the law as a condition of the appeal bond. State v. Hernandez, 1 Neb. App. 830, 511 N.W.2d 535 (1993).
29-1107.
Recognizance forfeited; set aside; conditions.The court may direct that a forfeiture of the recognizance be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture.
Source:Laws 1953, c. 88, § 2, p. 259.
Annotations
District court has authority to remit a part or all the penalty of a bail bond in its discretion, to be exercised as to what is right and equitable under circumstances of the individual case. State v. Kennedy, 193 Neb. 472, 227 N.W.2d 607 (1975).
Discretion rests in district court to remit all or any part of forfeited bail bond. State v. Reed, 178 Neb. 370, 133 N.W.2d 591 (1965).
Action under this section is to be measured in the light of the requirements of justice. State v. Seaton, 170 Neb. 687, 103 N.W.2d 833 (1960).
Court may direct that forfeiture of recognizance be set aside. State v. Konvalin, 165 Neb. 499, 86 N.W.2d 361 (1957).
29-1108.
Recognizance forfeited; motion; notice; judgment; cash deposit, disposition.When a forfeiture of a recognizance has not been set aside, the court in which the proceeding is pending shall on motion enter a judgment of default and execution may issue thereon. Where a cash deposit has been made in lieu of a surety or sureties as provided in section 29-901, the cash deposit shall upon forfeiture of the recognizance be paid into the county treasury upon the entry of order of forfeiture of the bond after first deducting all court costs due and owing such court. By entering into a bond, the obligors submit to the jurisdiction of the court, and irrevocably appoint the clerk of the court as their agent upon whom any papers affecting their liability may be served. The liability upon the bond may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies thereof to the obligors to their last-known addresses.
Cross References
Disposition of funds of forfeited recognizance, see section 29-2708.
Annotations
Judgment of forfeiture was properly entered on bail bond. State v. Casey, 180 Neb. 888, 146 N.W.2d 370 (1966).
Judgment on forfeited bail bond may not exceed the amount of the penalty of the bond. State v. Morse, 171 Neb. 87, 105 N.W.2d 572 (1960).
On motion of state, bail bond may be forfeited. State v. Seaton, 170 Neb. 687, 103 N.W.2d 833 (1960).
On forfeiture of recognizance, court should enter judgment. State v. Konvalin, 165 Neb. 499, 86 N.W.2d 361 (1957); State v. Honey, 165 Neb. 494, 86 N.W.2d 187 (1957).
29-1109.
Recognizance forfeited; judgment; remission; conditions.After entry of such judgment on the recognizance, the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture as provided in section 29-1107.
Source:Laws 1953, c. 88, § 4, p. 260.
Annotations
It is within the discretion of the trial court to remit a part or all of the penalty of a bail bond. State v. Ernest, 203 Neb. 290, 278 N.W.2d 355 (1979).
Procedure followed was proper to obtain a remission of bail. State v. Seaton, 170 Neb. 687, 103 N.W.2d 833 (1960).
Remission of part or all of penalty on forfeiture of recognizance rests in sound discretion of trial court. State v. Konvalin, 165 Neb. 499, 86 N.W.2d 361 (1957) .
29-1110.
Recognizance forfeited; satisfaction; forfeiture set aside or remitted; exoneration of surety.When the conditions of the recognizance have been satisfied or the forfeiture thereof has been set aside or remitted, the court shall exonerate the obligors and release any bail. A surety may be exonerated by a deposit of cash in the amount of the recognizance or by a timely surrender of the defendant into custody.
Source:Laws 1953, c. 88, § 5, p. 260.
Cross References
Disposition of funds of forfeited recognizance, see section 29-2708.
29-1201.
Prisoner held without indictment; discharge or recognizance; when.Any person held in jail charged with an indictable offense shall be discharged if he or she is not indicted at the term of court at which he or she is held to answer, unless such person is committed to jail on such charge after the rising and final report of the grand jury for that term, in which case the court may discharge such person, or require such person to enter into recognizance with sufficient security for his or her appearance before such court to answer such charge at the next term. However, such person so held in jail without indictment shall not be discharged if it appears to the satisfaction of the court that the witnesses on the part of the state have been enticed or kept away or are detained and prevented from attending court by sickness or some inevitable accident.
Source:G.S.1873, c. 58, § 389, p. 812; R.S.1913, § 9020; C.S.1922, § 10044; C.S.1929, § 29-1201; R.S.1943, § 29-1201;
Laws 2020, LB387, § 41.
Cross References
Prisoners, disposition of untried charges, see section 29-3801 et seq.
Annotations
Nebraska's speedy trial statutes also apply to prosecutions commenced by the filing of a complaint in county court. State v. Chapman, 307 Neb. 443, 949 N.W.2d 490 (2020).
Nebraska has created a statutory speedy trial right, which generally provides that a person who has been indicted for a criminal offense must be brought to trial within 6 months of his or her indictment. State v. Kula, 254 Neb. 962, 579 N.W.2d 541 (1998).
The procedure set out in sections 29-3801 et seq., rather than that in sections 29-1201 et seq., applies to instate prisoners. State v. Ebert, 235 Neb. 330, 455 N.W.2d 165 (1990).
Record did not show delay entitling defendant to discharge hereunder. Shaffer v. State, 123 Neb. 121, 242 N.W. 364 (1932).
Where jury called for term was excused before felony was committed, information was properly filed at beginning of next regular term. Nichols v. State, 109 Neb. 335, 191 N.W. 333 (1922).
Where no information or indictment is filed against defendant during the term at which he was held to answer, he is entitled to discharge. Cerny v. State, 62 Neb. 626, 87 N.W. 336 (1901).
Information filed in time and amended at next term does not entitle accused to discharge. Barker v. State, 54 Neb. 53, 74 N.W. 427 (1898).
When accused is fugitive from justice, he is not entitled to discharge because of failure to file information. Ex parte Trester, 53 Neb. 148, 73 N.W. 545 (1897).
Upon failure to indict or file information in term to which recognized, defendant is discharged. State ex rel. Conroy v. Miller, 43 Neb. 860, 62 N.W. 238 (1895).
When witnesses for state are not prevented from attending and no indictment is brought, accused is entitled to discharge. Ex parte Two Calf, 11 Neb. 221, 9 N.W. 44 (1881).
29-1202.
Repealed. Laws 1971, LB 436, § 6.
29-1203.
Repealed. Laws 1971, LB 436, § 6.
29-1204.
Repealed. Laws 1971, LB 436, § 6.
29-1205.
Right of accused to a speedy trial; preferences.To effectuate the right of the accused to a speedy trial and the interest of the public in prompt disposition of criminal cases, insofar as is practicable:
(1) The trial of criminal cases shall be given preference over civil cases; and
(2) The trial of defendants in custody and defendants whose pretrial liberty is reasonably believed to present unusual risks shall be given preference over other criminal cases. It shall be the duty of the county attorney to bring to the attention of the trial court any cases falling within this subdivision, and he shall generally advise the court of facts relevant in determining the order of cases to be tried.
Cross References
Constitutional provision:
Rights of accused, see Article I, section 11, Constitution of Nebraska.
Annotations
Subsection (1) of this section does not demand that all previously scheduled civil trials accommodate the rescheduling of a criminal trial as a result of a defense motion to continue. State v. Sims, 272 Neb. 811, 725 N.W.2d 175 (2006).
The speedy trial right does not apply to parental termination proceedings. In re Interest of C.P., 235 Neb. 276, 455 N.W.2d 138 (1990).
The right to a speedy trial applies only to criminal trials and, thus, does not apply to postconviction actions, which are civil in nature. State v. Bostwick, 233 Neb. 57, 443 N.W.2d 885 (1989).
Sections considered in reviewing order restricting publication of certain information before trial of murder case. State v. Simants, 194 Neb. 783, 236 N.W.2d 794 (1975).
This section is directory and does not grant any right of discharge short of six months. State v. Watkins, 190 Neb. 450, 209 N.W.2d 184 (1973).
Defendant received a speedy trial within ambit of Chapter 29, article 12, R.S.Supp.,1972. State v. Kennedy, 189 Neb. 423, 203 N.W.2d 106 (1972).
The primary burden is upon the state to bring accused to trial within time provided by law and if it does not he is entitled to discharge in absence of express waiver or waiver as provided by statute. State v. Brown, 189 Neb. 297, 202 N.W.2d 585 (1972); State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604 (1972).
29-1206.
Continuance; how granted.Applications for continuances shall be made in accordance with section 25-1148, but in criminal cases in the district court the court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecution or defense, but also the public interest in prompt disposition of the case.
Annotations
This section and section 25-1148 do not define whether a defendant's right to a speedy trial has been violated. State v. Turner, 252 Neb. 620, 564 N.W.2d 231 (1997).
A trial court may, in a proper case, order a continuance on its own motion and in the absence of a showing of abuse of discretion, its ruling on a motion for a continuance will not be disturbed on appeal. State v. Lee, 195 Neb. 348, 237 N.W.2d 880 (1976).
A defendant in a criminal case may not discharge his counsel on the eve of trial and obtain a continuance without demonstrating good cause therefor. State v. Coleman, 190 Neb. 441, 208 N.W.2d 690 (1973).
To support a continuance of trial for good cause beyond six months from filing of information, the court must make specific findings, based upon substantial preponderance of evidence, as to the cause or causes of such extension and the period of extension attributable to such cause or causes. State v. Brown, 189 Neb. 297, 202 N.W.2d 585 (1972); State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604 (1972).
29-1207.
Trial within
six months; time; how computed.(1) Every person
indicted or informed against for any offense shall be brought to trial within
six months, and such time shall be computed as provided in this section.
(2) Such six-month period shall commence to run from the date
the indictment is returned or the information filed, unless the offense is
a misdemeanor offense involving intimate partners, as that term is defined
in section 28-323, in which case the six-month period shall commence from
the date the defendant is arrested on a complaint filed as part of a warrant
for arrest.
(3) If a defendant is to be tried again following a mistrial,
an order for a new trial, or an appeal or collateral attack, such period shall
commence to run from the date of the mistrial, order granting a new trial,
or the mandate on remand.
(4) The following periods shall be excluded in computing the
time for trial:
(a) The period of delay resulting from other proceedings concerning
the defendant, including, but not limited to, an examination and hearing on
competency and the period during which he or she is incompetent to stand trial;
the time from filing until final disposition of pretrial motions of the defendant,
including motions to suppress evidence, motions to quash the indictment or
information, demurrers and pleas in abatement, and motions for a change of
venue; and the time consumed in the trial of other charges against the defendant;
(b) The period of delay resulting from a continuance granted
at the request or with the consent of the defendant or his or her counsel.
A defendant without counsel shall not be deemed to have consented to a continuance
unless he or she has been advised by the court of his or her right to a speedy
trial and the effect of his or her consent.
A defendant who has sought and obtained a continuance which is indefinite
has an affirmative duty to end the continuance by giving notice of request
for trial or the court can end the continuance by setting a trial date. When
the court ends an indefinite continuance by setting a trial date, the excludable
period resulting from the indefinite continuance ends on the date for which
trial commences. A defendant is deemed to have waived his or her right to
speedy trial when the period of delay resulting from a continuance granted
at the request of the defendant or his or her counsel extends the trial date
beyond the statutory six-month period;
(c) The period of delay resulting from a continuance granted
at the request of the prosecuting attorney, if:
(i) The continuance is granted because of the unavailability
of evidence material to the state's case, when the prosecuting attorney has
exercised due diligence to obtain such evidence and there are reasonable grounds
to believe that such evidence will be available at the later date; or
(ii) The continuance is granted to allow the prosecuting attorney
additional time to prepare the state's case and additional time is justified
because of the exceptional circumstances of the case;
(d) The period of delay resulting from the absence or unavailability
of the defendant;
(e) A reasonable period of delay when the defendant is joined
for trial with a codefendant as to whom the time for trial has not run and
there is good cause for not granting a severance. In all other cases, the
defendant shall be granted a severance so that he or she may be tried within
the time limits applicable to him or her; and
(f) Other periods of delay not specifically enumerated in
this section, but only if the court finds that they are for good cause.
Cross References
Juvenile in custody, adjudication hearing, see sections 43-271 and 43-277.
Rights of accused, see Article I, section 11, Constitution of Nebraska.
Annotations
1. General
2. Speedy trial, computation
3. Commencement of speedy trial period
4. Amended or refiled charges
5. Excludable periods, generally
6. Proceedings concerning the defendant
7. Defendant's pretrial motions or filings
8. Continuance at request of defendant or with defendant's consent
9. Continuance at request of prosecution
10. Interlocutory appeal
11. Good cause
12. Specific findings by court required
13. Trial not within six months
14. Waiver
15. Interplay with constitutional speedy trial requirement
16. Miscellaneous
1. General
This section requires discharge of a defendant whose case has not been tried within 6 months after the filing of the information. State v. Saylor, 294 Neb. 492, 883 N.W.2d 334 (2016).
The purpose of Nebraska's speedy trial act, sometimes called the "6-month rule," is protection of an accused from a criminal charge pending for an undue length of time. State v. Lafler, 225 Neb. 362, 405 N.W.2d 576 (1987).
Generally, an accused cannot take advantage of a delay in being brought to trial where his action or inaction was responsible for the delay. State v. Searles, 214 Neb. 849, 336 N.W.2d 571 (1983).
This section requires that every person indicted or informed against for any offense shall be brought to trial within 6 months, unless the 6 months are extended by any period to be excluded in computing the time for trial. State v. Fioramonti, 22 Neb. App. 52, 847 N.W.2d 95 (2014); State v. Schmader, 13 Neb. App. 321, 691 N.W.2d 559 (2005).
Under subsection (1) of this section, every person indicted or informed against for any offense shall be brought to trial within 6 months, unless the 6 months are extended by any period to be excluded in computing the time for trial. State v. Mortensen, 19 Neb. App. 220, 809 N.W.2d 793 (2011).
This section requires discharge of a defendant whose case has not been tried within 6 months after the filing of the information, unless the 6 months are extended by any period to be excluded in computing the time for trial. State v. Shipler, 17 Neb. App. 66, 758 N.W.2d 41 (2008).
This section requires that every person indicted or informed against for any offense shall be brought to trial within 6 months, unless the 6 months are extended by any period to be excluded in computing the time for trial. State v. Droz, 14 Neb. App. 32, 703 N.W.2d 637 (2005).
The purpose of the speedy trial act, sometimes called the "6-month rule," is protection of an accused from a criminal charge pending for an undue length of time. State v. Feldhacker, 11 Neb. App. 608, 657 N.W.2d 655 (2003).
2. Speedy trial, computation
To calculate the time for speedy trial purposes, a court must exclude the day the complaint was filed, count forward 6 months, back up 1 day, and then add any time excluded under subsection (4) of this section to determine the last day the defendant can be tried. State v. Chapman, 307 Neb. 443, 949 N.W.2d 490 (2020).
For speedy trial purposes, the calculation of excludable time for a continuance begins the day after the continuance is granted and includes the day on which the continuance ends. State v. Lovvorn, 303 Neb. 844, 932 N.W.2d 64 (2019).
This section does not impose a unitary speedy trial clock on all joined codefendants. The period of delay is determined by first calculating the defendant's speedy trial time absent the codefendant exclusion and then determining the number of days beyond that date that the joint trial is set to begin. State v. Beitel, 296 Neb. 781, 895 N.W.2d 710 (2017).
In calculating the number of excludable days resulting from an interlocutory appeal, for speedy trial purposes, the period to be excluded due to the appeal commences on and includes the date on which the defendant filed his or her notice of appeal. Where further proceedings are to be had following an interlocutory appeal, for speedy trial purposes, the period of time excludable due to the appeal concludes when the district court first reacquires jurisdiction over the case by taking action on the mandate of the appellate court. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
To determine the last day on which a defendant may be tried for speedy trial purposes, a court must exclude the day the information was filed, count forward 6 months, back up 1 day, and then add any time excluded under subsection (4) of this section. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
Once a mistrial is granted, the speedy trial clock is restarted. State v. Dockery, 273 Neb. 330, 729 N.W.2d 320 (2007).
For purposes of calculating the 6-month speedy trial act time period in a direct information case, the direct information should be deemed filed the day the order is entered finding probable cause or the day the defendant waives the preliminary hearing, and the speedy trial act calculations should be measured from either of these events. Pursuant to the Nebraska Supreme Court's case law interpreting the speedy trial act, the statutory 6-month speedy trial time period begins to run the day following the filing of the information, and in the case of a direct information, the day the information is filed for speedy trial act purposes is the day the district court finds probable cause or the day the defendant waives the preliminary hearing. State v. Boslau, 258 Neb. 39, 601 N.W.2d 769 (1999).
Where a retrial is ordered, it is the trial for the specific criminal offenses originally charged and other offenses required by law to be joined therewith that must begin within 6 months of the retrial order. The 6-month period is computed by moving forward 6 months, backing up 1 day, and then adding any excludable periods. State v. Blackson, 256 Neb. 104, 588 N.W.2d 827 (1999).
The six-month period within which an accused is to be brought to trial is computed by excluding the day of the filing of the information, and refers to a period of six calendar months, not 180 days. State v. Jones, 208 Neb. 641, 305 N.W.2d 355 (1981).
If an information is filed initially in district court, referred to as a "direct information," such filing is treated in the nature of a complaint until a preliminary hearing is held or waived. In the case of a direct information, the day the information is filed for speedy trial act purposes is the day the district court finds probable cause or the day the defendant waives the preliminary hearing. State v. Carrera, 25 Neb. App. 650, 911 N.W.2d 849 (2018).
To calculate the deadline for trial under the speedy trial statutes, a court must exclude the day the State filed the information, count forward 6 months, back up 1 day, and then add any time excluded under subsection (4) of this section. State v. Fioramonti, 22 Neb. App. 52, 847 N.W.2d 95 (2014).
To calculate the time for statutory speedy trial purposes, a court must exclude the day the information was filed, count forward 6 months, back up 1 day, and then add any excludable time to determine the last day the defendant can be tried. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012); State v. Curry, 18 Neb. App. 284, 790 N.W.2d 441 (2010); State v. Shipler, 17 Neb. App. 66, 758 N.W.2d 41 (2008); State v. Droz, 14 Neb. App. 32, 703 N.W.2d 637 (2005).
Where misdemeanor counts are filed with felony counts and it is clear that the State intends to try the misdemeanor and felony offenses together, the time that the misdemeanors and felonies were pending in county court is not tacked on for speedy trial purposes. State v. Timmerman, 12 Neb. App. 934, 687 N.W.2d 24 (2004).
Speedy trial time is calculated by excluding the date the information was filed, counting forward 6 calendar months, backing up 1 day, and then adding the excludable time periods to that date. State v. Feldhacker, 11 Neb. App. 608, 657 N.W.2d 655 (2003).
3. Commencement of speedy trial period
For cases commenced with a complaint in county court but thereafter bound over to district court, the 6-month statutory speedy trial period does not commence until the filing of the information in district court. State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).
In cases commenced and tried in county court, the 6-month statutory period within which an accused must be brought to trial begins to run on the date the complaint is filed. State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).
Pursuant to subsection (1) of this section, where a felony offense is involved, the 6-month speedy trial period commences to run from the date the indictment is returned or the information filed, and not from the time the complaint is filed. State v. Karch, 263 Neb. 230, 639 N.W.2d 118 (2002).
The 6-month period in which the trial must begin commences to run from the date the information is filed and not from the time the complaint is filed. State v. Trammell, 240 Neb. 724, 484 N.W.2d 263 (1992).
This section requires that every person charged with a criminal offense be brought to trial within six months. In cases commenced and tried in the county court, the six-month period begins to run on the date the complaint is filed in that court. State v. Johnson, 201 Neb. 322, 268 N.W.2d 85 (1978).
In felony cases, the six-month period runs from the date the indictment is returned or information filed, not from date complaint is filed in county court. State v. Costello, 199 Neb. 43, 256 N.W.2d 97 (1977).
A defendant's right to a speedy trial begins when he is indicted or informed against or arrested. State v. Spidell, 192 Neb. 42, 218 N.W.2d 431 (1974).
Where a felony offense is involved, the six-month period commences to run from the date the indictment is returned or the information filed. State v. Born, 190 Neb. 767, 212 N.W.2d 581 (1973).
The limitation for time of trial of criminal cases is six months from date indictment is returned or information filed. State v. Watkins, 190 Neb. 450, 209 N.W.2d 184 (1973).
For cases commenced with a complaint in county court but thereafter bound over to district court, the 6-month statutory speedy trial period does not commence until the filing of the information in district court. State v. Carrera, 25 Neb. App. 650, 911 N.W.2d 849 (2018).
Nebraska case law and the plain language of this section make it clear that the 6-month speedy trial period begins to run upon the filing of the information in district court. The time during which an underlying complaint is pending in county court before the defendant is bound over to district court is not counted. State v. Timmerman, 12 Neb. App. 934, 687 N.W.2d 24 (2004).
Where an information was filed directly in district court, the 6-month time period did not commence until a preliminary hearing was held and the defendant was bound over for trial. State v. Boslau, 8 Neb. App. 275, 593 N.W.2d 747 (1999).
4. Amended or refiled charges
The original charges have not been "abandoned" or "dismissed" when an amended complaint or information continues to make those charges, but additionally charges a different crime, and, therefore, the 6-month statutory speedy trial period continues to run as to the charges that have not changed, and a tacking-and-tolling analysis as to those charges is superfluous. State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).
An amended complaint or information which charges a different crime, without charging the original crime, constitutes an abandonment of the first complaint or information and acts as a dismissal of the same; the time between the dismissal and refiling of the same or a similar charge is not includable in calculating the 6-month time period. State v. Karch, 263 Neb. 230, 639 N.W.2d 118 (2002).
The time between the dismissal and refiling of the same or a similar charge is not includable in calculating the 6-month time period set forth in this section. To avoid a defendant's absolute discharge from an offense charged, as dictated by section 29-1208, the State must prove by a preponderance of the evidence the existence of a period of time which is authorized by subsection (4) of this section to be excluded in computing the time for commencement of the defendant's trial. State v. French, 262 Neb. 664, 633 N.W.2d 908 (2001).
When the State dismissed a criminal charge contained in an information against defendant and subsequently files an information against defendant which alleges (1) the same offense charged in the previously dismissed information, (2) an offense committed simultaneously with a lesser-included offense charged in the information previously dismissed, or (3) commission of a crime that is a lesser-included offense of the crime charged in the dismissed information, time which elapses during the pendency of the informations shall be charged against the State in determining the last day for commencement of a defendant's trial pursuant to the Nebraska speedy trial act. State v. Sumstine, 239 Neb. 707, 478 N.W.2d 240 (1991).
Time between dismissal and refiling of a charge is not includable in calculating the six-month time period set forth in this section. State v. Batiste, 231 Neb. 481, 437 N.W.2d 125 (1989).
The time between the dismissal of an information and its refiling is not includable, or is tolled, for purposes of the statutory 6-month period. However, any nonexcludable time that passed under the original information is tacked onto any nonexcludable time under the refiled information, if the refiled information alleges the same offense charged in the previously dismissed information. State v. Carrera, 25 Neb. App. 650, 911 N.W.2d 849 (2018).
During the period between dismissal of a first information and the filing of a second information which alleges the same charges, the speedy trial time is tolled and the time resumes upon the filing of the second information, including the day of its filing. State v. Florea, 20 Neb. App. 185, 820 N.W.2d 649 (2012).
5. Excludable periods, generally
A continuance refers to the circumstance where a court proceeding set for one date is postponed to a future date; a continuance must be granted at the request or with the consent of the defendant or his or her counsel before the resulting period of delay is excludable. State v. Space, 312 Neb. 456, 980 N.W.2d 1 (2022).
Where the same district court judge found a defendant incompetent to stand trial in a different case on or about the time that the State filed the information against the defendant in the instant case, the State proved by the greater weight of the evidence that the delay due to the competency proceedings and finding of incompetency in the other criminal case against the defendant should be excluded in the instant case under subdivision (4)(a) of this section. State v. Moore, 312 Neb. 263, 978 N.W.2d 327 (2022).
The statutory phrase "including, but not limited to" means the pretrial motions listed under subdivision (4)(a) of this section are provided as examples and are not intended to be an exhaustive list. State v. Webb, 311 Neb. 694, 974 N.W.2d 317 (2022).
Unless there is no appeal, a motion is not finally granted or determined for speedy trial purposes until an appellate court has finally decided the matter. Thus, periods to be excluded under subdivision (4)(a) of this section include the period of time between the denial of a defendant's pretrial motion and the filing of an interlocutory appeal from that motion, if such appeal is filed. State v. Bixby, 311 Neb. 110, 971 N.W.2d 120 (2022).
An excludable period of time under subdivision (4)(d) of this section did not occur because the State failed to prove it made diligent efforts to serve the bench warrant on the defendant while he was not incarcerated in another state. State v. Hernandez, 309 Neb. 299, 959 N.W.2d 769 (2021).
A pending arrest warrant can result in excludable speedy trial time only if the State proves diligent efforts to serve the warrant have been tried and failed. State v. Jennings, 308 Neb. 835, 957 N.W.2d 143 (2021).
In determining whether time is excludable for speedy trial purposes under subsection (4)(d) of this section, a trial date that is scheduled within 6 months after the defendant's reappearance will be presumed to be the next reasonably available trial date without the State being required to present further evidence to justify the setting. State v. Petty, 269 Neb. 205, 691 N.W.2d 101 (2005).
When a defendant has commenced a period of delay due to his or her absence or unavailability, the period of time from the defendant's later availability to the next reasonably available trial date is excludable under subsection (4)(d) of this section. State v. Petty, 269 Neb. 205, 691 N.W.2d 101 (2005).
An excludable period under subsection (4)(d) of this section does not commence when a defendant fails to appear at a hearing of which he or she has no notice. The period of time during which a warrant is pending is not excludable when the warrant is issued after defendant's failure to appear at a hearing of which he had no notice, unless the State shows that diligent efforts to obtain defendant's presence have been tried and failed. State v. Richter, 240 Neb. 223, 481 N.W.2d 200 (1992).
When a defendant has commenced a period of delay due to his or her absence or unavailability, the period of time from the defendant's later availability to the next reasonably available trial date is excludable under this section. State v. Letscher, 234 Neb. 858, 452 N.W.2d 767 (1990).
A delay may be justified for a good cause, such as a congested docket in the trial court, or scheduling difficulties on the part of the trial judge or the prosecutor. Where a defendant fails to appear for a scheduled trial and does not reappear until after the jury term, the period between the trial date and the next regular jury term may be excluded in determining whether the defendant has been denied a speedy trial. State v. Kriegler, 225 Neb. 486, 406 N.W.2d 137 (1987).
A plea agreement, which by its very terms delays the time for a defendant to plead, tolls the speedy trial statute. State v. McNitt, 216 Neb. 837, 346 N.W.2d 259 (1984).
The reasonable time used to obtain a deposition requested by a defendant in preparation for trial is excluded in computing the last day permissible for commencement of trial. State v. Fatica, 214 Neb. 776, 336 N.W.2d 101 (1983).
The time from filing to final disposition of pretrial motions must be excluded in computing the last day permissible for trial. State v. Brown, 214 Neb. 665, 335 N.W.2d 542 (1983).
The time from filing of pretrial motions to their final disposition is excluded in computing the time for trial. State v. Long, 206 Neb. 446, 293 N.W.2d 391 (1980).
Trial is to be held within six months after filing of information, but time from filing to final disposition of pretrial motions, or delay caused by defendant's absence, is excluded. State v. Stewart, 195 Neb. 90, 236 N.W.2d 834 (1975).
In computation of the six months within which accused must be brought to trial, periods of delay because of motions for change of venue and for continuance granted at the request, or with the consent, of defense counsel are excluded. State v. Ogden, 191 Neb. 7, 213 N.W.2d 349 (1973).
Pursuant to subsection (4)(a) of this section, the time during which an appeal of a denial of a motion for discharge is pending on appeal is excludable from the speedy adjudication trial clock. In re Interest of Shaquille H., 20 Neb. App. 141, 819 N.W.2d 741 (2012).
For purposes of speedy trial calculation, the period of time which elapses between scheduled pretrial hearings for which a defendant fails to appear and bond review hearings for which the defendant does appear is excluded from the 6-month statutory speedy trial period. State v. Rhoads, 11 Neb. App. 731, 660 N.W.2d 181 (2003).
6. Proceedings concerning the defendant
An excludable period of time under subdivision (4)(a) of this section did not occur because the court could not reasonably infer that defendant was incarcerated pending further proceedings. State v. Hernandez, 309 Neb. 299, 959 N.W.2d 769 (2021).
A "proceeding" within the meaning of subsection (4)(a) of this section is an application to a court of justice, however made, for aid in the enforcement of rights, for relief, for redress of injuries, for damages, or for any remedial object. State v. Tamayo, 280 Neb. 836, 791 N.W.2d 152 (2010).
An "examination and hearing on competency" within the meaning of subsection (4)(a) of this section is the well-defined statutory procedure for determining competency to stand trial established by section 29-1823. State v. Tamayo, 280 Neb. 836, 791 N.W.2d 152 (2010).
An interlocutory appeal taken by the defendant is a period of delay resulting from other proceedings concerning the defendant within the meaning of subsection (4)(a) of this section. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
The period of delay resulting from an attempt to have a defendant examined to determine his mental and physical competency to stand trial is not included in calculating the speedy trial period. State v. Dockery, 273 Neb. 330, 729 N.W.2d 320 (2007).
An inmate request form which is not an application to a court of justice for relief is not a proceeding under this section. State v. Feldhacker, 11 Neb. App. 608, 657 N.W.2d 655 (2003).
7. Defendant's pretrial motions or filings
It is presumed that a delay in hearing defense pretrial motions is attributable to the defendant unless the record affirmatively indicates otherwise. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
Subsection (4)(a) of this section excludes all time between the time of the filing of a defendant's pretrial motions and their final disposition, regardless of the promptness or reasonableness of the delay. The excludable period commences on the day immediately after the filing of a defendant's pretrial motion. Final disposition under subsection (4)(a) of this section occurs on the date the motion is granted or denied. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
A motion for discovery filed by a defendant is a pretrial motion and the time period during which it is pending should be excluded for speedy trial calculation purposes. State v. Washington, 269 Neb. 728, 695 N.W.2d 438 (2005).
Pursuant to subsection (4)(a) of this section, it will be presumed that a delay in hearing defense pretrial motions is attributable to the defendant unless the record affirmatively indicates otherwise. State v. Turner, 252 Neb. 620, 564 N.W.2d 231 (1997); State v. Curry, 18 Neb. App. 284, 790 N.W.2d 441 (2010).
An excludable time period under subsection (4)(a) of this section commences on the day immediately after the filing of a defendant's pretrial motion. To avoid a defendant's absolute discharge from an offense charged, as dictated by section 29-1208, the State, by a preponderance of evidence, must prove existence of a time period to be excluded under subsection (4) of this section. State v. Oldfield, 236 Neb. 433, 461 N.W.2d 554 (1990).
Pursuant to subsection (4)(a) of this section, a defendant must accept reasonable delay as a consequence of the defendant's pretrial motions. State v. Oldfield, 236 Neb. 433, 461 N.W.2d 554 (1990).
Judicial delay, absent a showing of good cause, does not suspend a defendant's right to a speedy trial. Where the court took 1 year 7 months 24 days to resolve a single motion to suppress, the delay suffered by the defendant was not the reasonable consequence of filing a motion and did not toll the speedy trial statute. State v. Wilcox, 224 Neb. 138, 395 N.W.2d 772 (1986).
Time utilized in disposing of pretrial motion filed by defendant is excluded by statute. State v. Classen, 216 Neb. 323, 343 N.W.2d 749 (1984).
Pursuant to subdivision (4)(a) of this section, it is presumed that a delay in hearing defense pretrial motions is attributable to the defendant unless the record affirmatively indicates otherwise. A delay due to the appointment of the district court judge to the Nebraska Supreme Court, which caused the case to be reassigned, should be attributable to the defendant's motion to suppress as reasonable delay when there is no evidence of judicial neglect. State v. Carrera, 25 Neb. App. 650, 911 N.W.2d 849 (2018).
Unlike the requirement in subsection (4)(f) of this section that any delay be for good cause, conspicuously absent from subsection (4)(a) of this section is any limitation, restriction, or qualification of the time which may be charged to the defendant as a result of the defendant's motions. Rather, the plain terms of subsection (4)(a) exclude all time between the time of the filing of the defendant's pretrial motions and their final disposition, regardless of the promptness or reasonableness of the delay. State v. Johnson, 22 Neb. App. 747, 860 N.W.2d 222 (2015).
Because the filing of a defendant's pro se plea in abatement tolled the statutory speedy trial clock, and the excludable period continued until the court ruled on the plea in abatement, when the defense counsel filed a subsequent plea in abatement, the clock was already stopped and such filing had no effect on the speedy trial calculation. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012).
Once defendant's pro se plea in abatement was filed by the clerk of the district court, the statutory speedy trial clock stopped until the trial court disposed of the pretrial motion, and it was irrelevant for speedy trial purposes whether defendant's plea in abatement was properly filed. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012).
Speedy trial statute excludes all time between the filing of a defendant's pretrial motions and their disposition, regardless of the promptness or reasonableness of the delay; the excludable period commences on the day immediately after the filing of a defendant's pretrial motion, and final disposition occurs on the date the motion is granted or denied. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012).
Final disposition under subsection (4)(a) of this section occurs on the date the defendant's motion is granted or denied. State v. Curry, 18 Neb. App. 284, 790 N.W.2d 441 (2010).
In a speedy trial analysis under subsection (4)(a) of this section, the excludable period commences on the day immediately after the filing of a defendant's pretrial motion. State v. Curry, 18 Neb. App. 284, 790 N.W.2d 441 (2010).
The excludable period under this section commences on the day immediately after the filing of a defendant's pretrial motion. State v. Feldhacker, 11 Neb. App. 608, 657 N.W.2d 655 (2003).
A defendant's successful motion in the district court to suppress evidence is not finally granted or determined, unless there is no appeal, until a judge of the Court of Appeals has decided the matter under section 29-116. The time from the defendant's filing of such a motion until final determination is excluded in the speedy trial calculation. State v. Hayes, 10 Neb. App. 833, 639 N.W.2d 418 (2002).
8. Continuance at request of defendant or with defendant's consent
A prior defense motion for indefinite continuance remains effective, in terms of excluding time from the statutory 6-month speedy trial period, as to all charges in an amended information when the amended information charges some of the same crimes as the preceding information, as well as additional crimes unrelated to the same facts of the preceding information. State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).
Without severance of the individual charges from the pending prosecution, a motion for continuance is not applied piecemeal to certain charges under the information, but not to others, in the context of applying the 6-month statutory speedy trial period. State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).
The delay caused by a continuance granted for the defendant is excluded from the 6-month period during which the defendant must be brought to trial, pursuant to subsection (4)(b) of this section. State v. Wells, 277 Neb. 476, 763 N.W.2d 380 (2009).
For speedy trial purposes, the calculation for a continuance begins the day after the continuance is granted and includes the day on which the continuance ends. In the case of an indefinite continuance, the calculation runs from the day immediately following the grant of the continuance and ends when the defendant takes some affirmative action, such as requesting a trial date, to show his or her desire for the indefinite continuance to end or, absent such a showing, on the rescheduled trial date. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
In determining whether a period of delay is attributable to defense counsel's motion to continue, an appellate court need not inquire as to what extent there was "good cause" for the delay. State v. Sims, 272 Neb. 811, 725 N.W.2d 175 (2006).
In computing the time for trial the period of delay resulting from a continuance granted at the request of the defendant or his counsel is excluded. State v. Jameson, 224 Neb. 38, 395 N.W.2d 744 (1986).
Pursuant to subsection (4)(b) of this section, where a juvenile's counsel agrees to reset an adjudication proceeding, such period of delay resulting therefrom is excludable. In re Interest of Shaquille H., 20 Neb. App. 141, 819 N.W.2d 741 (2012).
Under subdivision (4)(b) of this section, the period of delay resulting from a continuance granted at the request or with the consent of the defendant or his counsel shall be excluded from the calculation of the time for trial. State v. Mortensen, 19 Neb. App. 220, 809 N.W.2d 793 (2011).
When a nonlawyer makes a motion for continuance made on behalf of a defendant in a criminal case, such motion constitutes a nullity and cannot form the basis for an exclusion from the speedy trial calculation under subsection (4)(b) of this section. State v. Craven, 17 Neb. App. 127, 757 N.W.2d 132 (2008).
Where the defendant appeared without the private counsel that he had earlier informed the court he intended to retain and the trial court appointed a public defender and suddenly announced that it was continuing the matter, the resulting delay was properly excluded under subsection (4)(f) of this section rather than (4)(b), because the record did not show that the postponement was granted at the defendant's request or with his consent. State v. Craig, 15 Neb. App. 836, 739 N.W.2d 206 (2007).
Subsection (4)(b) clearly excludes from the 6-month time limit periods of delay resulting from continuances granted at the request of defendant's counsel. State v. Stubbs, 5 Neb. App. 38, 555 N.W.2d 55 (1996).
9. Continuance at request of prosecution
Pursuant to subdivision (4)(c)(i) of this section, the prosecution established a period of delay under the speedy trial statute, because the prosecutor's affidavit demonstrated the need for a continuance due to the unavailability of material witnesses; the prosecutor's exercise of due diligence in obtaining witnesses; and reasonable grounds to believe such evidence will be available at later date. State v. Billingsley, 309 Neb. 616, 961 N.W.2d 539 (2021).
Pursuant to subdivision (4)(c)(ii) of this section, the prosecution established a period of delay under the speedy trial statute, because the prosecutor's affidavit demonstrated the need for additional time to prepare its case because of exceptional circumstances. State v. Billingsley, 309 Neb. 616, 961 N.W.2d 539 (2021).
Where the period of delay sought by the State's motion fell under the period specifically enumerated in subsection (4)(c)(i) of this section, that was the applicable subsection for purposes of speedy trial analysis. State v. Shipler, 17 Neb. App. 66, 758 N.W.2d 41 (2008).
10. Interlocutory appeal
When the State is statutorily authorized to take an interlocutory appeal from a district court's order granting a defendant's pretrial motion in a criminal case, then such an appeal is an expected and reasonable consequence of the defendant's motion and the time attributable to the appeal, regardless of the course the appeal takes, is properly excluded from speedy trial computation. State v. Hood, 294 Neb. 747, 884 N.W.2d 696 (2016).
Where further proceedings are to be had following an interlocutory appeal, for speedy trial purposes, the period of time excludable due to the appeal concludes when the district court first reacquires jurisdiction over the case by taking action on the mandate of the appellate court. State v. Baker, 264 Neb. 867, 652 N.W.2d 612 (2002).
Where further proceedings are to be had following an interlocutory appeal, for speedy trial purposes, the period of time excludable due to the appeal concludes when the district court first reacquires jurisdiction over the case by taking action on the mandate of the appellate court. An interlocutory appeal taken by the defendant is a period of delay resulting from other proceedings concerning the defendant within the meaning of subsection (4)(a) of this section. State v. Ward, 257 Neb. 377, 597 N.W.2d 614 (1999).
11. Good cause
A court may find that the risk of exposing trial participants to COVID-19 is good cause to delay a defendant's right to a speedy trial within this section. State v. Gnanaprakasam, 310 Neb. 519, 967 N.W.2d 89 (2021).
Evidence of good cause is properly presented at the hearing on the motion for absolute discharge and need not be articulated at the time of the court's sua sponte order delaying trial. State v. Chase, 310 Neb. 160, 964 N.W.2d 254 (2021).
There is no legal principle that requires the good cause shown to be consistent with the court's prior, contemporaneous rationale when sua sponte delaying trial. State v. Chase, 310 Neb. 160, 964 N.W.2d 254 (2021).
When a trial court's sua sponte decision to delay trial implicates statutory speedy trial rights, the exclusion of the period attributable to such delay is governed by a showing on the record of good cause as described by subdivision (4)(f) of this section. State v. Chase, 310 Neb. 160, 964 N.W.2d 254 (2021).
"Good cause" means a substantial reason, one that affords a legal excuse. Good cause is a factual question to be addressed on a case-by-case basis. State v. Coomes, 309 Neb. 749, 962 N.W.2d 510 (2021).
Evidence of a crowded docket alone is insufficient to support a finding of good cause for exclusion of time periods under this section. In re Interest of Shaquille H., 285 Neb. 512, 827 N.W.2d 501 (2013).
Pursuant to subsection (4)(f) of this section, good cause is not shown simply because there has been no proof that the State acted in bad faith or because the substantive issue raised by the appeal has not previously been decided. State v. Recek, 263 Neb. 644, 641 N.W.2d 391 (2002).
The period of time from the trial court's ruling on a motion for depositions until the depositions are concluded is not excludable under subsection (4)(a) of this section. However, such a period may or may not be excluded under subsection (4)(f) of this section, the inquiry turning upon whether there is good cause for the delay. Pursuant to subsection (4)(a) of this section, a proceeding is an application to a court of justice, however made, for aid in the enforcement of rights, for relief, for redress of injuries, for damages, or for any remedial object. State v. Murphy, 255 Neb. 797, 587 N.W.2d 384 (1998).
If a trial court relies upon section 29-1207(4)(f), R.R.S.1943, in excluding a period of delay from the six-month computation, a general finding of "good cause" will not suffice; there must be specific findings as to the good cause. State v. Kinstler, 207 Neb. 386, 299 N.W.2d 182 (1980); State v. Johnson, 201 Neb. 322, 268 N.W.2d 85 (1978).
It is a misapplication of the "good cause" provision of the speedy trial statute to exclude a defendant's trial preparation time, such as securing a transcript of a previous hearing, which is not specifically within this section, when the State has not proved both a period of delay and good cause for it. State v. Feldhacker, 11 Neb. App. 872, 663 N.W.2d 143 (2003).
Pursuant to subsection (4) of this section, it is the State's burden to establish that facts showing good cause under the speedy trial statute exist to delay a defendant's trial beyond the 6-month time period. State v. Rhoads, 11 Neb. App. 731, 660 N.W.2d 181 (2003).
Statements made by a judge cannot be used to show good cause under subsection (4)(f) of this section. State v. Roundtree, 11 Neb. App. 628, 658 N.W.2d 308 (2003).
12. Specific findings by court required
When ruling on a motion for absolute discharge pursuant to section 29-1208, the trial court shall make specific findings of each period of delay excludable under subdivisions (4)(a) to (e) of this section, in addition to the findings under subdivision (4)(f) of this section. Such findings shall include the date and nature of the proceedings, circumstances, or rulings which initiated and concluded each excludable period; the number of days composing each excludable period; and the number of days remaining in which the defendant may be brought to trial after taking into consideration all excludable periods. State v. Lintz, 298 Neb. 103, 902 N.W.2d 683 (2017).
A juvenile court judge must make specific findings on the record regarding any excludable time periods as defined in this section before making the ultimate determination as to whether discharge would be in the best interests of a child. In re Interest of Shaquille H., 285 Neb. 512, 827 N.W.2d 501 (2013).
When ruling on a motion for absolute discharge, specific findings of all excludable periods of subdivisions (4)(a) to (f) of this section are required. In re Interest of Shaquille H., 285 Neb. 512, 827 N.W.2d 501 (2013).
Effective March 9, 2009, when ruling on a motion for absolute discharge pursuant to section 29-1208, the trial court shall make specific findings of each period of delay excludable under subsections (4)(a) to (e) of this section, in addition to the findings under subsection (4)(f) of this section. Such findings shall include the date and nature of the proceedings, circumstances, or rulings which initiated and concluded each excludable period; the number of days composing each excludable period; and the number of days remaining in which the defendant may be brought to trial after taking into consideration all excludable periods. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
13. Trial not within six months
The burden of proof is upon the State to show that one or more of the excluded time periods under subsection (4) of this section are applicable when the defendant is not tried within 6 months. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009); State v. Shipler, 17 Neb. App. 66, 758 N.W.2d 41 (2008); State v. Droz, 14 Neb. App. 32, 703 N.W.2d 637 (2005); State v. Schmader, 13 Neb. App. 321, 691 N.W.2d 559 (2005).
To obtain absolute discharge under section 29-1208, a defendant is not required to show prejudice sustained as the result of failure to bring the defendant to trial within 6 months in accordance with subsection (2) of this section. State v. Knudtson, 262 Neb. 917, 636 N.W.2d 379 (2001).
The State has the burden of proving that one or more of the excluded periods of time under subsection (4) of this section are applicable if defendant is not tried within 6 months of the filing of the information in a criminal action. State v. Groves, 238 Neb. 137, 469 N.W.2d 364 (1991); State v. Beck, 212 Neb. 701, 325 N.W.2d 148 (1982); State v. Bolton, 210 Neb. 694, 316 N.W.2d 619 (1982); State v. Curry, 18 Neb. App. 284, 790 N.W.2d 441 (2010); State v. Washington, 11 Neb. App. 598, 658 N.W.2d 302 (2003).
It may be reasonably argued that the exclusionary period set forth in section 29-1207(4), R.R.S.1943, would cover the period from a defendant's commitment as a sexual sociopath to the court's opinion in State v. Shaw, 202 Neb. 766, 277 N.W.2d 106 (1979) or the Legislature's enactment of sections 29-2911 to 29-2921, R.R.S.1943. However, since this defendant was not brought to trial within six months of either date, the issue of when to begin computing the time will not be decided here. State v. Kinstler, 207 Neb. 386, 299 N.W.2d 182 (1980).
If a defendant is not tried within six months of the commencement of a criminal action, the State has the burden of proving by a substantial preponderance of the evidence that one or more of the excluded periods of time under subsection (4) of this section, is applicable. State v. Johnson, 201 Neb. 322, 268 N.W.2d 85 (1978).
Where trial not commenced within six months of filing the information, upon motion for discharge, burden is on the state to prove one or more of the excluded periods is applicable, or defendant is entitled to an absolute discharge. State v. Hankins, 200 Neb. 69, 262 N.W.2d 197 (1978).
To support a continuance of trial for good cause beyond six months from filing of information, the court must make specific findings, based upon substantial preponderance of evidence, as to the cause or causes of such extension and the period of extension attributable to such cause or causes. State v. Brown, 189 Neb. 297, 202 N.W.2d 585 (1972); State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604 (1972).
Where a defendant has not been brought to trial within six months and before trial or plea of guilty or nolo contendere he moves for his discharge, the state's burden is to prove by a substantial preponderance of the evidence that one or more of the excludable periods hereunder is applicable. State v. Brown, 189 Neb. 297, 202 N.W.2d 585 (1972); State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604 (1972).
If defendant is not brought to trial before the running of the statutory speedy trial time period, as extended by excludable periods, he or she shall be entitled to his or her absolute discharge. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012).
14. Waiver
A defendant permanently waives his or her statutory speedy trial rights under subdivision (4)(b) of this section when an ultimately unsuccessful motion for discharge results in the continuance of a timely trial to a date outside the statutory 6-month period, as calculated on the date the motion for discharge was filed. State v. Riessland, 310 Neb. 262, 965 N.W.2d 13 (2021).
Although amendments to subdivision (4)(b) of this section providing for waiver of speedy trial rights if delay results from a request for continuance were designed to prevent abuse, it does not follow that the waiver set forth therein applies only if the defendant's continuance was in bad faith; such a case-by-case evaluation of subjective intent would be untenable, and this section does not provide for it. State v. Bridgeford, 298 Neb. 156, 903 N.W.2d 22 (2017).
The reason for the defendant's request for a continuance is irrelevant to whether the defendant has waived the statutory right to a speedy trial by requesting a continuance that results in the trial's being rescheduled to a date more than 6 months after the indictment is returned or information filed. State v. Gill, 297 Neb. 852, 901 N.W.2d 679 (2017).
For purposes of waiving the statutory 6-month speedy trial period, a defendant's motion for indefinite continuance in an ongoing prosecution under the same case number applies not only to those charges that were pending at the time the motion was made, but also to any charges later added by amendment. State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).
A motion to discharge filed before subdivision (4)(b) of this section became operative cannot waive the statutory right to a speedy trial in the manner established by State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014). State v. Vela-Montes, 287 Neb. 679, 844 N.W.2d 286 (2014).
A defendant's motion to discharge based on statutory speedy trial grounds will be deemed to be a waiver of that right under subdivision (4)(b) of this section where (1) the filing of such motion results in the continuance of a timely trial to a date outside the statutory 6-month period, as calculated on the date the motion to discharge was filed, (2) discharge is denied, and (3) that denial is affirmed on appeal. State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014); State v. Fioramonti, 22 Neb. App. 52, 847 N.W.2d 95 (2014).
For purposes of the waiver provided in subdivision (4)(b) of this section, a motion to discharge is a request for a continuance. State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014).
Subdivision (4)(b) of this section, as amended, provides for a permanent waiver of the statutory right to a speedy trial. State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014).
Where an appellate court determines that a defendant waived his or her statutory right to a speedy trial, the court is not required to calculate the days remaining to bring him or her to trial under this section. State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014).
The statutory right to a speedy trial is not a personal right that can be waived only by a defendant. Defense counsel's request for a continuance in order to prepare for trial waives a defendant's statutory right to a speedy trial despite the defendant's objections to the continuance. State v. McHenry, 268 Neb. 219, 682 N.W.2d 212 (2004).
This section does not address waivers of the right to a speedy trial, nor does it suggest that a waiver cannot be limited in time. This section does not provide that by requesting a continuance, a defendant has completely waived the right to a speedy trial. Rather, it provides that the delay caused by a continuance granted for the defendant is excluded from the 6-month period and counted against the defendant. State v. Knudtson, 262 Neb. 917, 636 N.W.2d 379 (2001).
A defendant may waive his right to a speedy trial under this section so long as he is properly advised of his right to a speedy trial and the waiver is entered voluntarily, knowingly, and intelligently. A defendant may terminate his waiver of a speedy trial by filing a written request for trial with the clerk of the court in which the defendant is to be tried. From the date the defendant files his written request for trial, the six-month period for the state to bring a defendant to trial provided in this section shall begin anew. State v. Andersen, 232 Neb. 187, 440 N.W.2d 203 (1989).
Where a defendant has waived his right to a speedy trial and thereafter withdraws that waiver and renews his request for a speedy trial, the time between the initial waiver and the later request to withdraw must be excluded from the computation of the six-month period. State v. Williams, 211 Neb. 650, 319 N.W.2d 748 (1982).
The failure of the accused to object to the setting of a trial date more than six months after charges were filed did not constitute a waiver of his rights under this section. State v. Kinstler, 207 Neb. 386, 299 N.W.2d 182 (1980).
It was not the duty of the trial court to suggest to the defendant or his counsel that he file a motion for discharge. State v. Hert, 192 Neb. 751, 224 N.W.2d 188 (1974).
Once a defendant has unconditionally waived his or her right to a speedy trial, it is his or her burden to show by a preponderance of the evidence that the waiver was conditional or was otherwise invalid. State v. Herngren, 8 Neb. App. 207, 590 N.W.2d 871 (1999).
15. Interplay with constitutional speedy trial requirement
A defendant's appeal of a final order denying a pretrial motion for absolute discharge on statutory speedy trial grounds did not result in appellate jurisdiction to review a nonfinal order that denied the motion on constitutional speedy trial grounds. State v. Abernathy, 310 Neb. 880, 969 N.W.2d 871 (2022).
Pursuant to subsection (1) of this section, the constitutional right to a speedy trial is guaranteed by U.S. Const. amend. VI and Neb. Const. art. I, section 11; the constitutional right to a speedy trial and the statutory implementation of that right exist independently of each other. State v. Karch, 263 Neb. 230, 639 N.W.2d 118 (2002).
The constitutional right to a speedy trial and the statutory implementation of that right under this section exist independently of each other. Determining whether a defendant's constitutional right to a speedy trial has been violated requires a balancing test in which courts must approach each case on an ad hoc basis. This balancing test involves four factors: length of delay, the reason for the delay, the defendant's assertion of the right, and prejudice to the defendant. None of these four factors standing alone is a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, the factors are related and must be considered together with such other circumstances as may be relevant. State v. Andersen, 232 Neb. 187, 440 N.W.2d 203 (1989).
The constitutional right to a speedy trial and the statutory implementation of that right under this section exist independently of each other. State v. Sardeson, 231 Neb. 586, 437 N.W.2d 473 (1989).
Although the constitutional right to a speedy trial and the statutory implementation of that right exist independently of each other, this section provides a useful standard for assessing whether the length of the delay is unreasonable under the U.S. and Nebraska Constitutions. State v. Schmader, 13 Neb. App. 321, 691 N.W.2d 559 (2005).
The 6-month timeframe provided by this section is a useful standard for assessing whether the length of the delay under the Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 1282, 33 L. Ed. 2d 101 (1972), speedy trial test is unreasonable under the Constitutions, both state and federal. State v. Robinson, 12 Neb. App. 897, 687 N.W.2d 15 (2004).
16. Miscellaneous
For purposes of speedy trial calculation, there is no meaningful distinction between the phrases "period of time" and "period of delay." State v. Coomes, 309 Neb. 749, 962 N.W.2d 510 (2021); State v. Feldhacker, 267 Neb. 145, 672 N.W.2d 627 (2004).
A Nebraska prisoner sought relief under two different speedy trial statutes, but only section 29-3805, governing intrastate detainers, applied. State v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d 153 (2016).
"Misdemeanor offense involving intimate partners," within the meaning of subsection (2) of this section, does not encompass any and all misdemeanors in which intimate partners may be engaged. Rather, the exception applies only to those misdemeanor offenses in which the involvement of an "intimate partner" is an element of the offense. State v. Lebeau, 280 Neb. 238, 784 N.W.2d 921 (2010).
A court may not apply Nebraska's 6-month speedy trial statute under this section to determine whether a prisoner is timely brought to trial under article III(a) of the Agreement on Detainers. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
Subsection (3) of this section does not apply to a defendant who has not yet been brought to trial. State v. Baker, 264 Neb. 867, 652 N.W.2d 612 (2002).
Once the operation of Nebraska's speedy trial statutes have been triggered by the filing of an indictment or information, the statutory right of a defendant under the control of prosecuting authorities who knowingly extradite him or her to another state or to federal authorities is governed by this section, not the Agreement on Detainers. State v. Steele, 261 Neb. 541, 624 N.W.2d 1 (2001).
For purposes of this section, the date of the mandate on remand is the date on which the district court first takes action pursuant to the mandate. State v. White, 257 Neb. 943, 601 N.W.2d 731 (1999).
For purposes of subsection (3) of this section, the date of the "mandate on remand" is the date on which the district court first takes action pursuant to the mandate. State v. Kinser, 256 Neb. 56, 588 N.W.2d 794 (1999).
A ruling on a motion for absolute discharge based upon an accused criminal's nonfrivolous claim that his or her statutory speedy trial rights were violated is final and appealable. For the purpose of determining whether an accused's speedy trial rights under this section have been violated, successive informations charging the same offenses are not to be considered separately. Where a retrial is ordered, it is the trial for the specific criminal offenses originally charged and other offenses required by law to be joined therewith that must begin within 6 months of the retrial order, not a trial on a specific information. State v. Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997).
The speedy trial act also applies to prosecutions on complaint. State v. Vrtiska, 227 Neb. 600, 418 N.W.2d 758 (1988).
Length of delay, the reason for the delay, the defendant's assertion of the right to speedy trial, and prejudice to the defendant are factors to consider in the balancing process which weighs the conduct of both the State and the defendant. These factors did not need to be considered where a delay of 17 weeks from the return of a mandate to a trial did not constitute an unreasonable delay. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).
It is the state's burden to prove by a preponderance of the evidence that there has been compliance with this section. State v. Bennett, 219 Neb. 601, 365 N.W.2d 423 (1985).
Unreasonable delays occurring prior to the filing of an information will be considered in determining whether a defendant has been denied a speedy trial. State v. Gingrich, 211 Neb. 786, 320 N.W.2d 445 (1982).
Under time schedule of this case, defendant was not denied his constitutional or statutory right to a speedy trial. State v. Clouse, 195 Neb. 671, 240 N.W.2d 36 (1976).
Although statutory requirements for speedy trial refer only to indictments and informations, the references held to include complaints. State v. Stevens, 189 Neb. 487, 203 N.W.2d 499 (1973).
The statutory speedy trial rights of instate prisoners are governed by sections 29-3801 to 29-3809, and the procedure under this section does not apply to instate prisoners. State v. LeFever, 30 Neb. App. 562, 970 N.W.2d 792 (2022).
The phrase "period of delay," as used in subsection (4) of this section, is synonymous with the phrase "period of time." State v. Fioramonti, 22 Neb. App. 52, 847 N.W.2d 95 (2014).
As a general rule, a trial court's determination as to whether charges should be dismissed on statutory speedy trial grounds is a factual question which will be affirmed on appeal unless clearly erroneous. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012).
A plea agreement not entered into on the record before any court or tribunal, but, rather, made during private negotiations between the parties, is not a "proceeding" within the meaning of subsection (4)(a) of this section. State v. Vasquez, 16 Neb. App. 406, 744 N.W.2d 500 (2008).
Because a transcript of a previous court proceeding is something to which a defendant would normally be entitled as a matter of right and because a praecipe is simply a directive to the court reporter to prepare such official transcript, the time period while the reporter prepares the transcript is simply trial preparation and does not automatically become a period of delay under this section. State v. Feldhacker, 11 Neb. App. 872, 663 N.W.2d 143 (2003).
Under subsection (4) of this section, the court may grant a prosecutor's oral motion for continuance upon oral statements of the prosecutor where the defense does not object to the procedure and where facts as stated by the prosecutor would be sufficient had they been sworn. State v. Roundtree, 11 Neb. App. 628, 658 N.W.2d 308 (2003).
There is no reasonableness inquiry required with regard to excludable periods that properly fall under this section because such periods are automatically excluded in computing the time for trial. State v. Feldhacker, 11 Neb. App. 608, 657 N.W.2d 655 (2003).
Where a defendant moves for discharge on denial of speedy trial grounds and the record affirmatively shows that 6 months has not elapsed between the filing of the information and the defendant's motion, the burden to show a denial of the right to a speedy trial is then placed on the defendant. State v. Bassette, 6 Neb. App. 192, 571 N.W.2d 133 (1997).
29-1208.
Discharge from
offense charged; when.If a defendant is not brought
to trial before the running of the time for trial as provided for in section 29-1207, as extended
by excluded periods, he or
she shall be entitled to his or
her absolute discharge from the offense charged and for any other
offense required by law to be joined with that offense.
Annotations
1. Discharge
2. Miscellaneous
1. Discharge
If a trial court fails to include the computation as required by State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009), in its order on a motion for absolute discharge, the appeal will be summarily remanded to the trial court so that it can prepare the required computation. State v. Lintz, 298 Neb. 103, 902 N.W.2d 683 (2017).
When ruling on a motion for absolute discharge pursuant to this section, the trial court shall make specific findings of each period of delay excludable under section 29-1207(4)(a) to (e), in addition to the findings under section 29-1207(4)(f). Such findings shall include the date and nature of the proceedings, circumstances, or rulings which initiated and concluded each excludable period; the number of days composing each excludable period; and the number of days remaining in which the defendant may be brought to trial after taking into consideration all excludable periods. State v. Lintz, 298 Neb. 103, 902 N.W.2d 683 (2017).
Effective March 9, 2009, when ruling on a motion for absolute discharge pursuant to this section, the trial court shall make specific findings of each period of delay excludable under section 29-1207(4)(a) to (e), in addition to the findings under section 29-1207(4)(f). Such findings shall include the date and nature of the proceedings, circumstances, or rulings which initiated and concluded each excludable period; the number of days composing each excludable period; and the number of days remaining in which the defendant may be brought to trial after taking into consideration all excludable periods. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
To obtain absolute discharge under this section, a defendant is not required to show prejudice sustained as the result of failure to bring the defendant to trial within 6 months in accordance with subsection (2) of section 29-1207. State v. Knudtson, 262 Neb. 917, 636 N.W.2d 379 (2001).
To avoid a defendant's absolute discharge from an offense charged, as dictated by this section, the State must prove by a preponderance of the evidence the existence of a period of time which is authorized by subsection (4) of section 29-1207 to be excluded in computing the time for commencement of the defendant's trial. State v. French, 262 Neb. 664, 633 N.W.2d 908 (2001).
Where a motion to discharge on speedy trial grounds is submitted to a trial court, that motion is inferentially denied where the trial court proceeds to trial without expressly ruling on the motion. State v. Ward, 257 Neb. 377, 597 N.W.2d 614 (1999).
Resolution of a nonfrivolous motion to discharge pursuant to this section is a ruling affecting a substantial right made in a special proceeding and is therefore final and appealable. State v. Kinser, 256 Neb. 56, 588 N.W.2d 794 (1999).
Per this section, a motion to discharge for lack of a speedy trial is a final, appealable order pursuant to section 25-1912(1). State v. Jacques, 253 Neb. 247, 570 N.W.2d 331 (1997).
The primary burden to bring the accused person to trial within the time provided by law is upon the State, and failure to do so entitles defendant to an absolute discharge. State v. Richter, 240 Neb. 223, 481 N.W.2d 200 (1992).
To avoid a defendant's absolute discharge from an offense charged, as dictated by this section, the State, by a preponderance of evidence, must prove existence of a time period to be excluded under section 29-1207(4). State v. Oldfield, 236 Neb. 433, 461 N.W.2d 554 (1990).
To avoid a defendant's absolute discharge from an offense charged, the State, by a preponderance of evidence, must prove existence of a period of time which is authorized by section 29-1207(4) to be excluded in computing the time for commencement of the defendant's trial. State v. Lafler, 225 Neb. 362, 405 N.W.2d 576 (1987).
The primary burden is upon the state to bring the accused person to trial within the time provided by law, and if he is not brought to trial within that time, he is entitled to an absolute discharge from the offense alleged in the absence of an express waiver or waiver as provided by statute. State v. Beck, 212 Neb. 701, 325 N.W.2d 148 (1982).
Where trial not commenced within six months of filing the information, upon motion for discharge, burden is on the state to prove one or more of the excluded periods is applicable, or defendant is entitled to an absolute discharge. State v. Hankins, 200 Neb. 69, 262 N.W.2d 197 (1978).
The primary burden is upon the state to bring accused to trial within time provided by law and if it does not he is entitled to discharge in absence of express waiver or waiver as provided by statute. State v. Brown, 189 Neb. 297, 202 N.W.2d 585 (1972); State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604 (1972).
If a defendant is not brought to trial before the running of the statutory speedy trial time period, as extended by excludable periods, he or she shall be entitled to his or her absolute discharge. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012); State v. Mortensen, 19 Neb. App. 220, 809 N.W.2d 793 (2011).
The denial of a motion to discharge is an appealable order from which an appeal must be taken within 30 days. State v. Erb, 6 Neb. App. 672, 576 N.W.2d 839 (1998).
2. Miscellaneous
A defendant's appeal of a final order denying a pretrial motion for absolute discharge on statutory speedy trial grounds did not result in appellate jurisdiction to review a nonfinal order that denied the motion on constitutional speedy trial grounds. State v. Abernathy, 310 Neb. 880, 969 N.W.2d 871 (2022).
Failure of defendant to move for discharge prior to trial or entry of a plea of guilty or nolo contendere is a waiver of right to speedy trial. State v. Hert, 192 Neb. 751, 224 N.W.2d 188 (1974).
Absolute preference to trial of criminal cases is not required. State v. Watkins, 190 Neb. 450, 209 N.W.2d 184 (1973).
Although statutory requirements for speedy trial refer only to indictments and informations, the references held to include complaints. State v. Stevens, 189 Neb. 487, 203 N.W.2d 499 (1973).
Two counts of an amended information, which were the same as counts found in the original information, were required to be dismissed under this section, but a new count was not affected, because 6 months had not passed since that charge had been filed. State v. Thompson, 10 Neb. App. 69, 624 N.W.2d 657 (2001).
29-1209.
Failure of defendant to move for discharge prior to trial or entry of plea; effect.Failure of the defendant to move for discharge prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to speedy trial.
Annotations
A defendant waives any objection on the basis of a violation of the right to a speedy trial when he or she does not file a motion to discharge before trial begins. State v. Dockery, 273 Neb. 330, 729 N.W.2d 320 (2007).
It is incumbent upon defendant and his counsel to file a timely motion for discharge in order to avoid the waiver provided for by this section. State v. Kearns, 245 Neb. 728, 514 N.W.2d 844 (1994).
As long as a defendant was properly advised of his rights, by either counsel or the court, by knowingly, intelligently, and voluntarily pleading guilty, the defendant waives his statutory right to a speedy trial. State v. McNitt, 216 Neb. 837, 346 N.W.2d 259 (1984).
It was not the duty of the trial court to suggest to the defendant or his counsel that he file a motion for discharge. State v. Hert, 192 Neb. 751, 224 N.W.2d 188 (1974).
A writ of habeas corpus would not issue to permit collateral attack on a sentence for first degree sexual assault and first degree false imprisonment based on an alleged speedy trial violation that the prisoner waived by failing to file a motion for discharge. Jones v. Nebraska Dept. of Corr. Servs., 21 Neb. App. 206, 838 N.W.2d 51 (2013).
29-1301.
Venue; change; when allowed.All criminal cases shall be tried in the county where the offense was committed, except as otherwise provided in section 25-412.03 or sections 29-1301.01 to 29-1301.04, or unless it shall appear to the court by affidavits that a fair and impartial trial cannot be had therein. In such case the court, upon motion of the defendant, shall transfer the proceeding to any other district or county in the state as determined by the court.
Source:G.S.1873, c. 58, § 455, p. 823; R.S.1913, § 9024; C.S.1922, § 10048; C.S.1929, § 29-1301; R.S.1943, § 29-1301; Laws 1957, c. 103, § 1, p. 363;
Laws 1975, LB 97, § 7; Laws 1978, LB 562, § 1; Laws 2021, LB500, § 1.
Cross References
Change of venue, criminal case pending in county with population of four thousand or less without adequate facilities for jury trials, see section 25-412.01.
Trial, agreements under Interlocal Cooperation Act, see section 25-412.03.
Annotations
1. Venue of offense
2. Change of venue
3. Miscellaneous
1. Venue of offense
A criminal defendant has a right to be tried in the county in which the criminal offense is alleged to have been committed. In re Interest of Leo L. II, 258 Neb. 877, 606 N.W.2d 783 (2000).
The right to be tried in the county in which the criminal offense is alleged to have been committed is secured by statute rather than by the federal or state constitution. When a criminal defendant does not object at trial to holding the trial in a county other than the county in which the criminal offense is alleged to have been committed, the defendant waives his or her objection to the statutorily designated trial provision in this section. State v. Meers, 257 Neb. 398, 598 N.W.2d 435 (1999).
Venue may be proven like any fact, by testimony or by conclusion reached as the only logical inference under the facts. State v. Liberator, 197 Neb. 857, 251 N.W.2d 709 (1977).
Where defendant resisted officer in execution of his office on county line road, prosecution could be in either of the counties divided by the road. State v. Lindsey, 193 Neb. 442, 227 N.W.2d 599 (1975).
Trial of offense of failing to support child was properly held in county where child resided. State ex rel. Brito v. Warrick, 176 Neb. 211, 125 N.W.2d 545 (1964).
Criminal cases must be tried in county where crime was committed, or in county to which change of venue is taken. State v. Furstenau, 167 Neb. 439, 93 N.W.2d 384 (1958).
Venue of an offense may be proven like any other fact. Gates v. State, 160 Neb. 722, 71 N.W.2d 460 (1955).
Where defendant had entered a plea of guilty, he could not on error proceedings retry issue of fact as to venue of offense. Clark v. State, 150 Neb. 494, 34 N.W.2d 877 (1948).
Where an offense consists of a series of acts, prosecution may be had in any county where any one of the acts took place. Yost v. State, 149 Neb. 584, 31 N.W.2d 538 (1948).
Where a person in one county procures the commission of a crime in another through the agency of an innocent person, he is subject to prosecution in the county where the acts were done by the agent. Robeen v. State, 144 Neb. 910, 15 N.W.2d 69 (1944).
Conviction was sustained as not violative of this section. Forney v. State, 123 Neb. 179, 242 N.W. 441 (1932).
County in which matrimonial domicile of husband and wife is located fixes venue in action for abandonment. Preston v. State, 106 Neb. 848, 184 N.W. 925 (1921).
2. Change of venue
A change of venue is mandated when a defendant cannot receive a fair and impartial trial in the county where the offense was committed. State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
An appellate court evaluates a court's change of venue ruling under eight factors unless the defendant claims that the pretrial publicity was so pervasive and prejudicial that the appellate court should presume the unconstitutional partiality of the prospective jurors. State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
The Nebraska Supreme Court has recognized two circumstances when the prospective jurors- claims of impartiality can be presumptively unreliable: (1) pervasive pretrial publicity that is sufficiently inflammatory can create a presumption of prejudice in a community and require a change of venue to a location untainted by the publicity, and (2) if most of the prospective jurors admit to a disqualifying prejudice, the reliability of the others- claims of impartiality is called into question. State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
A court must evaluate several factors in determining whether a defendant has met the burden of showing that pretrial publicity has made it impossible to secure a fair trial and impartial jury. These factors include (1) the nature of the publicity, (2) the degree to which the publicity has circulated throughout the community, (3) the degree to which the venue could be changed, (4) the length of time between the dissemination of the publicity complained of and the date of the trial, (5) the care exercised and ease encountered in the selection of the jury, (6) the number of challenges exercised during voir dire, (7) the severity of the offenses charged, and (8) the size of the area from which the venire was drawn. State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007).
Pretrial publicity regarding a retrial after a conviction may in some cases present more difficult venue issues than those of an initial trial, but a determination of whether a change in venue is necessary remains within the discretion of the trial court. State v. McHenry, 250 Neb. 614, 550 N.W.2d 364 (1996).
Trial court does not abuse its discretion in denying defendant's motion for change of venue when there is no evidence that jury could not be fair and impartial after viewing news reports which reference a polygraph examination. State v. McHenry, 247 Neb. 167, 525 N.W.2d 620 (1995).
A party seeking change of venue must show that publicity has made it impossible to secure a fair and impartial jury. The factors to be evaluated in determining whether a change of venue is required due to pretrial publicity include the nature of the publicity, the degree to which the publicity has circulated throughout the community, the degree to which the publicity circulated in areas to which venue could be changed, the length of time between the dissemination of the publicity complained of and the date of trial, the care exercised and ease encountered in the selection of the jury, the number of challenges exercised during voir dire, the severity of the offenses charged, and the size of the area from which the venire was drawn. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).
The factors to be considered in determining whether this section authorizes a change in venue due to pretrial publicity include the nature of the publicity, the degree to which the publicity has circulated in the areas to which venue could be changed, the length of time between the dissemination of the publicity complained of and the date of trial, the care exercised and ease encountered in selection of the jury, the number of challenges exercised during voir dire, the severity of the offenses charged, and the size of the area from which the venire is drawn. A trial court's ruling on a motion for a change of venue under this section will not be disturbed on appeal absent an abuse of discretion. State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992).
The factors to be evaluated in determining whether a change of venue is required due to pretrial publicity include the nature of the publicity, the degree to which the publicity has circulated throughout the community, the degree to which the publicity has circulated in areas to which venue could be changed, the length of time between the dissemination of the publicity complained of and the date of trial, the care exercised and ease encountered in the selection of the jury, the number of challenges exercised during voir dire, the severity of the offenses charged, and the size of the area from which the venire is drawn. State v. Jacobs, 226 Neb. 184, 410 N.W.2d 468 (1987).
Showing made was insufficient to require change of venue. Onstott v. State, 156 Neb. 55, 54 N.W.2d 380 (1952); Medley v. State, 156 Neb. 25, 54 N.W.2d 233 (1952).
Motion for change of venue was properly denied in first degree murder case. Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689 (1951).
Application for change of venue is addressed to sound discretion of trial court; ruling will not be disturbed unless abuse of discretion is shown. Simmons v. State, 111 Neb. 644, 197 N.W. 398 (1924); Clarence v. State, 89 Neb. 762, 132 N.W. 395 (1911); Sweet v. State, 75 Neb. 263, 106 N.W. 31 (1905); Jahnke v. State, 68 Neb. 154, 94 N.W. 158 (1903), reversed on rehearing 68 Neb. 181, 104 N.W. 154 (1905).
Change of venue on application of accused is waiver of his right to trial in county where crime is charged. Kennison v. State, 83 Neb. 391, 119 N.W. 768 (1909).
Ruling of district court upon motion supported by affidavits will not be disturbed unless clearly without support of sufficient evidence. Lindsay v. State, 46 Neb. 177, 64 N.W. 716 (1895).
Change can only be granted by court of county where offense was committed. Gandy v. State, 27 Neb. 707, 43 N.W. 747, 44 N.W. 108 (1889).
Party seeking change of venue must show by best evidence that can be obtained bias and prejudice against him. Simmerman v. State, 16 Neb. 615, 21 N.W. 387 (1884).
On showing made, change of venue should have been granted. Richmond v. State, 16 Neb. 388, 20 N.W. 282 (1884).
Motion for change to particular county is bad, and may be overruled. Olive v. State, 11 Neb. 1, 7 N.W. 444 (1880).
Requirements of this section have no application to receiving plea of guilty and imposing sentence in chambers. Canada v. Jones, 170 F.2d 606 (8th Cir. 1948).
3. Miscellaneous
The State has the burden to prove proper venue beyond a reasonable doubt in the absence of defendant's waiver. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).
Voir dire examination provides the best opportunity to determine whether venue should be changed. Mere jury exposure to news accounts of a crime does not presumptively deprive a criminal defendant of due process; rather, to warrant a change of venue, a defendant must show the existence of pervasive misleading pretrial publicity. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).
Voir dire examination is the better, more probative forum for ascertaining the existence of community and individual prejudice or hostility toward the accused than is a public opinion poll. State v. Bradley, 236 Neb. 371, 461 N.W.2d 524 (1990).
A defendant may waive the issue of statutorily designated venue by requesting a change of venue in accordance with this section, but does not waive the venue issue by failing to raise venue before or during trial. State v. Vejvoda, 231 Neb. 668, 438 N.W.2d 461 (1989).
A motion to change venue under this provision is addressed to the discretion of the trial judge, whose ruling will not be disturbed absent an abuse thereof. An abuse occurs where a defendant establishes that local conditions and pretrial publicity make it impossible to secure a fair trial. State v. Jacobs, 226 Neb. 184, 410 N.W.2d 468 (1987).
Under facts in this case it was not error to deny motions grounded on pretrial publicity for change of venue and continuance, sequestration of jury during voir dire and trial, and for admission of a photograph which merely illustrated testimony received without objection. State v. Ell, 196 Neb. 800, 246 N.W.2d 594 (1976).
Section considered in reviewing order restricting publication of certain information before trial of murder case. State v. Simants, 194 Neb. 783, 236 N.W.2d 794 (1975).
Appeal by a county in criminal case from order allowing attorney's fees is not authorized as the district court merely determines the reasonable charges for which claim may be filed with the county board. State v. Berry, 192 Neb. 826, 224 N.W.2d 767 (1975).
Where state and local purposes are commingled, the crucial issue turns upon a determination of whether the controlling purposes are state or local. Counties may be required to pay attorney's fees for one appointed to defend an indigent defendant. Kovarik v. County of Banner, 192 Neb. 816, 224 N.W.2d 761 (1975).
29-1301.01.
Venue; crime committed in different counties.If any person shall commit an offense against the person of another, such accused person may be tried in the county in which the offense is committed, or in any county into or out of which the person upon whom the offense was committed may, in the prosecution of the offense, have been brought, or in which an act is done by the accused in instigating, procuring, promoting, or aiding in the commission of the offense, or in aiding, abetting, or procuring another to commit such offense.
Source:Laws 1957, c. 103, § 2, p. 364.
Annotations
Two jury instructions read in conjunction with one another correctly instructed the jury that the offenses must have been "committed in this state." Taken as a whole, the instructions as to venue did not relieve the State of its burden to prove the acts were committed in Nebraska, and the defendant was not prejudiced as to necessitate a reversal on these grounds. State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).
Although another county was the situs of the felonious sexual assault and where victim's clothing was found, venue was proper where sufficient circumstantial evidence existed from which a fact finder could reasonably conclude that the victim was originally abducted in county where trial was held. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).
A motion for change of venue filed pursuant to this statute is addressed to the sound discretion of the trial court, whose ruling will not be disturbed on appeal absent a clear abuse of that discretion. State v. Kern, 224 Neb. 177, 397 N.W.2d 23 (1986).
Where defendant resisted officer in execution of his office on county line road, prosecution could be in either of the counties divided by the road. State v. Lindsey, 193 Neb. 442, 227 N.W.2d 599 (1975).
This section permits trial either in county where offense was committed or in any county into or out of which the person upon whom the offense was committed may, in the prosecution of the offense, have been brought, or in which an act is done by accused in instigating, procuring, promoting, or aiding in the commission of the offense. State v. Garza, 191 Neb. 118, 214 N.W.2d 30 (1974).
District court for Douglas County had jurisdiction of rape case where prisoner allegedly committed acts in county in furtherance of offense and prosecutrix was brought back into county after alleged rape. Garza v. Wolff, 528 F.2d 208 (8th Cir. 1975).
29-1301.02.
Venue; crime committed on moving means of transportation.When an offense is committed in this state, on board a vessel navigating a river, bay, slough, lake, or canal, or lying therein, in the prosecution of its voyage, or on a railroad train, or car, motor vehicle, common carrier transporting passengers, or on an aircraft prosecuting its trip, the accused may be tried in any county through, on, or over which the vessel, train, car, motor vehicle, common carrier, or aircraft passes in the course of its voyage or trip, or in the county in which the voyage or trip terminates.
Source:Laws 1957, c. 103, § 3, p. 364.
Annotations
Two jury instructions read in conjunction with one another correctly instructed the jury that the offenses must have been "committed in this state." Taken as a whole, the instructions as to venue did not relieve the State of its burden to prove the acts were committed in Nebraska, and the defendant was not prejudiced as to necessitate a reversal on these grounds. State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).
Venue confirmed in county where auto trip originated and ended, during which sexual assault occurred. State v. Tiff, 199 Neb. 519, 260 N.W.2d 296 (1977).
29-1301.03.
Venue; jurisdiction in two or more counties; effect of conviction or acquittal.Where an offense is within the jurisdiction of two or more counties, a conviction or acquittal thereof in one county is a bar to a prosecution or indictment therefor in another.
Source:Laws 1957, c. 103, § 4, p. 364.
29-1301.04.
Venue; crime committed using an electronic communication device.(1) If a person uses an electronic communication device to commit any element of an offense, such person may be tried in the county where the electronic communication was initiated or where the electronic communication was received.
(2) For purposes of this section:
(a) Electronic communication has the same meaning as in section 28-1310; and
(b) Electronic communication device has the same meaning as in section 28-833.
29-1302.
Change of venue; how effected; costs; payment.When the venue is changed, the clerk of the court in which the indictment was found shall file a certification of the case file and costs, which together with the original indictment, shall be transmitted to the clerk of the court to which the venue is changed, and the trial shall be conducted in all respects as if the offender had been indicted in the county to which the venue has been changed. All costs, fees, charges, and expenses accruing from a change of venue, together with all costs, fees, charges, and expenses made or incurred in the trial of, or in keeping, guarding, and maintaining the accused shall be paid by the county in which the indictment was found. The clerk of the trial court shall make a statement of such costs, fees, charges, and expenses and certify and transmit the same to the clerk of the district court where the indictment was found, to be entered upon the register of actions and collected and paid as if a change of venue had not been had.
Source:G.S.1873, c. 58, § 456, p. 824; Laws 1883, c. 84, § 1, p. 329; Laws 1887, c. 109, § 1, p. 667; R.S.1913, § 9025; C.S.1922, § 10049; C.S.1929, § 29-1302; R.S.1943, § 29-1302;
Laws 1978, LB 562, § 2; Laws 2018, LB193, § 50.
Annotations
Counties are obligated to pay costs and expenses of prosecutions, including fees and expenses of attorneys appointed to represent indigent defendants in criminal cases, and there is no requirement that a property tax be levied therefor. Kovarik v. County of Banner, 192 Neb. 816, 224 N.W.2d 761 (1975).
Transcript of proceedings is transmitted to adjoining county upon change of venue. State v. Furstenau, 167 Neb. 439, 93 N.W.2d 384 (1958).
County from which change of venue is taken is not liable for fees of jurors of regular panel not sitting on trial of case. Dawes County v. Sioux County, 77 Neb. 567, 110 N.W. 378 (1906).
Filing of transcript and original indictment of information in office of clerk of court to which change is granted is jurisdictional. Barr v. State, 45 Neb. 458, 63 N.W. 856 (1895).
Compensation for assistant to county attorney is to be paid by county where crime was committed. Fuller v. Madison County, 33 Neb. 422, 50 N.W. 255 (1891).
29-1303.
Change of venue; transfer of prisoner.When a court has ordered a change of venue, a warrant shall be issued by the clerk, directed to the sheriff, commanding him safely to convey the prisoner to the jail of the county where he is to be tried, there to be safely kept by the jailer thereof until discharged by due course of law.
Source:G.S.1873, c. 58, § 457, p. 824; R.S.1913, § 9026; C.S.1922, § 10050; C.S.1929, § 29-1303; R.S.1943, § 29-1303.
Annotations
Upon change of venue, transfer of accused to jail of county where he is to be tried is provided. State v. Furstenau, 167 Neb. 439, 93 N.W.2d 384 (1958).
29-1304.
Change of venue; witnesses recognized to appear.When a change of venue is allowed, the court shall recognize the witnesses on the part of the state to appear before the court in which the prisoner is to be tried.
Source:G.S.1873, c. 58, § 458, p. 824; R.S.1913, § 9027; C.S.1922, § 10051; C.S.1929, § 29-1304; R.S.1943, § 29-1304.
Annotations
Upon change of venue, recognizance may be required of witnesses to appear before the court in which the accused is to be tried. State v. Furstenau, 167 Neb. 439, 93 N.W.2d 384 (1958).
Court cannot create indebtedness against county by appointing bailiff to detain witness. Shaw v. Holt County, 88 Neb. 348, 129 N.W. 552 (1911).
29-1305.
Venue; crime committed on county line.When an offense shall be committed on a county line, the trial may be in either county divided by such line; and where any offense shall be committed against the person of another, and the person committing the offense shall be in one county, and the person receiving the injury shall be in another county, the trial may be had in either of such counties.
Source:G.S.1873, c. 58, § 424, p. 819; R.S.1913, § 9028; C.S.1922, § 10052; C.S.1929, § 29-1305; R.S.1943, § 29-1305.
Annotations
Where an offense is committed on a county line, prosecution may be in either of the counties divided by such line. State v. Lindsey, 193 Neb. 442, 227 N.W.2d 599 (1975).
29-1306.
Venue; death occurring in another county or state.If any person shall give any mortal blow or administer any poison to another, in any county within this state, with intent to kill, and the party so stricken or poisoned thereof shall die in any other county or state, the person giving such mortal blow or administering such poison may be tried and convicted of murder or manslaughter, as the case may be, in the county where such mortal blow was given or poison administered.
Source:G.S.1873, c. 58, § 545, p. 844; R.S.1913, § 9029; C.S.1922, § 10053; C.S.1929, § 29-1306; R.S.1943, § 29-1306.
Annotations
Venue of a homicide may be established by circumstantial evidence. Hawkins v. State, 60 Neb. 380, 83 N.W. 198 (1900).
29-1307.
Venue; receiver of stolen property.Whenever any person shall be liable to prosecution as the receiver of any personal property that shall have been feloniously stolen, taken or embezzled, he may be indicted in any county where he received or had such property, notwithstanding the theft was committed in another county.
Source:G.S.1873, c. 58, § 423, p. 819; R.S.1913, § 9030; C.S.1922, § 10054; C.S.1929, § 29-1307; R.S.1943, § 29-1307.
Annotations
If person has stolen property in the county, proof of act of receiving is not necessary to establish proper venue. State v. McKee, 183 Neb. 754, 163 N.W.2d 434 (1969).
This section does not authorize prosecution for burglary in another county than where the crime was committed. State v. Furstenau, 167 Neb. 439, 93 N.W.2d 384 (1958).
29-1401.
Grand jury; when called; death while being apprehended or in custody; procedures.(1) The district courts are hereby vested with power to call grand juries.
(2) A grand jury may be called and summoned in the manner provided by law on such day of a regular term of the district court in each year in each county of the state as the district court may direct and at such other times and upon such notice as the district court may deem necessary.
(3) District courts shall call a grand jury in each case that a petition meets the requirements of section 32-628, includes a recital as to the reason for requesting the convening of the grand jury and a specific reference to the statute or statutes which are alleged to have been violated, and is signed not more than ninety days prior to the date of filing under section 29-1401.02 by not less than ten percent of the registered voters of the county who cast votes for the office of Governor in such county at the most recent general election held for such office.
(4) District courts shall call a grand jury in each case upon certification by the county coroner or coroner's physician that a person has died while being apprehended by or while in the custody of a law enforcement officer or detention personnel. In each case subject to this subsection:
(a) Law enforcement personnel from the jurisdiction in which the death occurred shall immediately secure the scene, preserve all evidence, and investigate the matter as in any other homicide. The case shall be treated as an open, ongoing matter until all evidence, reports, and other relevant material which has been assembled are transferred to a prosecuting attorney selected pursuant to subdivision (b) of this subsection;
(b) The county attorney or a member of his or her staff shall be the prosecuting attorney. Except as provided in subdivision (d) of this subsection, the prosecuting attorney shall, as soon as practicable, select a team of three peace officers trained to investigate homicides. At least two of such investigators shall be from agencies other than the agency under which the death occurred. The team shall examine all evidence concerning the cause of death and present the findings of its investigation to the prosecuting attorney;
(c) A grand jury shall be impaneled within thirty days after the certification by the county coroner or coroner's physician, unless the court extends such time period upon the showing of a compelling reason; and
(d) In those cases in which the death has been certified by a licensed practicing physician to be from natural causes, the county attorney or a member of his or her staff may present such finding to a grand jury without selecting a three-member team of peace officers to investigate.
Source:Laws 1909, c. 171, § 1, p. 591; R.S.1913, § 9031; Laws 1917, c. 148, § 1, p. 333; C.S.1922, § 10055; C.S.1929, § 29-1401; Laws 1939, c. 18, § 19, p. 111; C.S.Supp.,1941, § 29-1401; R.S.1943, § 29-1401; Laws 1959, c. 118, § 1, p. 449; Laws 1969, c. 237, § 1, p. 874;
Laws 1988, LB 676, § 4; Laws 1999, LB 72, § 2; Laws 2002, LB 935, § 2; Laws 2010, LB842, § 1; Laws 2016, LB1000, § 5.
Annotations
The statutory scheme which requires convening a grand jury where a person has died while being apprehended by or while in custody of a law enforcement officer removes the county attorney from the process, and the county attorney has no access to grand jury records. The failure of the grand jury to return an indictment does not prevent the county attorney from proceeding independently. It is not necessary to convene a second grand jury, but, rather, the county attorney may proceed by filing a complaint or information in the district court. In re Grand Jury of Douglas Cty., 263 Neb. 981, 644 N.W.2d 858 (2002).
District court may order grand jury hereunder. Pinn v. State, 107 Neb. 417, 186 N.W. 544 (1922).
Under prior law, grand jury was required to be summoned at first term every year unless otherwise directed in writing by court or judge thereof. Krause v. State, 88 Neb. 473, 129 N.W. 1020 (1911).
29-1401.01.
Repealed. Laws 2002, LB 935, § 19.
29-1401.02.
Grand jury by petition; procedure; failure to call; filing.The procedure for calling a grand jury by petition of the registered voters of the county shall be as follows:
(1) The petitions shall be filed in the office of the clerk of the district court, comply with the requirements in section 29-1401, and be filed without a filing fee;
(2) Upon receipt of such petitions, the clerk of the district court shall forthwith certify the petitions so filed to the county clerk or election commissioner in the county in which the signers of such petitions are registered to vote and shall request that the signatures on such petitions be validated according to the list of registered voters;
(3) The county clerk or election commissioner shall, within thirty days after receipt of such petitions, determine the number of valid signatures appearing on such petitions and certify the findings along with the total vote cast for Governor at the most recent election for such office in such county to the presiding judge of the district court in which the petitions were filed;
(4) The presiding judge of the district court shall, upon receipt of the certificate from the county clerk or election commissioner, examine the petitions and within fifteen days after the receipt thereof shall determine: (a) Whether the requisite number of valid signatures appear on such petitions; and (b) whether the formal requirements as to the form of the petition have been satisfied;
(5) The determination of sufficiency of the petitions by the presiding judge shall be based solely upon the certification of valid signatures by the county clerk or election commissioner and upon the presiding judge's personal examination of the form of the petitions. No additional evidence shall be considered by the presiding judge in making the determination of sufficiency and under no circumstances shall any petitioner be required to testify or otherwise present evidence relating to allegations contained in the petitions;
(6) Upon a determination that the requisite number of valid signatures appeared on the petitions and that the petitions otherwise were sufficient as to form, the presiding judge shall call a grand jury forthwith;
(7) If the presiding judge of the district court fails to make a determination as to the sufficiency of the petitions and fails to call a grand jury within fifteen days after the date of delivery of the petitions to the presiding judge, the clerk of the district court shall immediately call a grand jury pursuant to law, notwithstanding the fact that the presiding judge of the district court failed to determine sufficiency of the petitions and did not call the grand jury; and
(8) If the presiding judge or clerk of the district court fails to call a grand jury, the petitioners may file an immediate request with the Chief Justice of the Supreme Court, or in his or her absence, with any judge thereof, and request that the Chief Justice or judge review the petitions and certifications and call a grand jury. If the Chief Justice or judge of the Supreme Court determines sufficiency of the petitions according to law, the Chief Justice or judge shall order the clerk of the district court to call a grand jury.
29-1402.
Grand jury; convening; no limitation on right to prosecute by information.The convening of a grand jury shall in no way limit the right of prosecution on information or complaint during the time the grand jury is in session.
Source:G.S.1873, c. 58, § 393, p. 814; R.S.1913, § 9032; C.S.1922, § 10056; C.S.1929, § 29-1402; R.S.1943, § 29-1402; Laws 1959, c. 118, § 3, p. 450.
Annotations
This section does not allow the district court to enjoin a county attorney from proceeding with a separate preliminary hearing during the time that the grand jury is proceeding on the same matter. In re Grand Jury of Douglas Cty., 263 Neb. 981, 644 N.W.2d 858 (2002).
29-1403.
Foreman; appointment.When the grand jury shall be impaneled the court shall appoint one of the number foreman.
Source:G.S.1873, c. 58, § 394, p. 814; R.S.1913, § 9033; C.S.1922, § 10057; C.S.1929, § 29-1403; R.S.1943, § 29-1403.
29-1404.
Foreperson; oath or affirmation; form.(1) Except as provided in subsection (2) of this section, when the foreperson shall be appointed, an oath or affirmation shall be administered to him or her in the following words: Saving yourself and fellow jurors, you, as foreperson of this grand inquest, shall diligently inquire and true presentment make, of all such matters and things as shall be given you in charge or otherwise come to your knowledge, touching the present service. The counsel of the state, your own and your fellows, you shall keep secret, unless called on in a court of justice to make disclosures. You shall present no person through malice, hatred, or ill will, nor shall you leave any person unpresented through fear, favor, or affection, or for any reward or hope thereof; but in all your presentments you shall present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding.
(2) For grand juries impaneled pursuant to subsection (4) of section 29-1401, when the foreperson shall be appointed, an oath or affirmation shall be administered to him or her in the following words: Saving yourself and fellow jurors, you, as foreperson of this grand inquest, shall diligently inquire and true presentment make, of all such matters and things as shall be given you in charge or otherwise come to your knowledge, touching the present service. The counsel of the state, your own and your fellows, you shall keep secret during the course of the impaneled grand jury's investigation and deliberations, unless called on in a court of justice to make disclosures. You shall present no person through malice, hatred, or ill will, nor shall you leave any person unpresented through fear, favor, or affection, or for any reward or hope thereof; but in all your presentments you shall present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding.
Source:G.S.1873, c. 58, § 395, p. 814; R.S.1913, § 9034; C.S.1922, § 10058; C.S.1929, § 29-1404; R.S.1943, § 29-1404;
Laws 2016, LB1000, § 6.
Annotations
Oath construed. Krause v. State, 88 Neb. 473, 129 N.W. 1020 (1911).
29-1405.
Jurors; oath or affirmation; form.Thereupon the following oath or affirmation shall be administered to the other grand jurors: The same oath which A. B., your foreman, hath now taken before you on his part, you, and each of you, shall well and truly observe and keep on your respective parts.
Source:G.S.1873, c. 58, § 396, p. 814; R.S.1913, § 9035; C.S.1922, § 10059; C.S.1929, § 29-1405; R.S.1943, § 29-1405.
29-1406.
Judge; charge to jury; instruction as to powers and duties.(1) The grand jury, after being sworn, shall be charged as to their duty by the judge, who shall call their attention particularly to the obligation of secrecy which their oaths impose, and to such offenses as he or she is by law required to specially charge.
(2) Upon impanelment of each grand jury, the court shall give to such grand jury adequate and reasonable written notice of and shall assure that the grand jury reasonably understands the nature of:
(a) Its duty to inquire into offenses against the criminal laws of the State of Nebraska alleged to have been committed or, in the case of a grand jury impaneled pursuant to subsection (4) of section 29-1401, its duty to inquire into offenses against the criminal laws of the State of Nebraska regarding the death of a person who has died while being apprehended or while in the custody of a law enforcement officer or detention personnel;
(b) Its right to call and interrogate witnesses;
(c) Its right to request the production of documents or other evidence;
(d) The subject matter of the investigation and the criminal statutes or other statutes involved, if these are known at the time the grand jury is impaneled;
(e) The duty of the grand jury by an affirmative vote of twelve or more members of the grand jury to determine, based on the evidence presented before it, whether or not there is probable cause for finding indictments and to determine the violations to be included in any such indictments;
(f) The requirement that the grand jury may not return an indictment in cases of perjury unless at least two witnesses to the same fact present evidence establishing probable cause to return such an indictment; and
(g) In the case of a grand jury impaneled pursuant to subsection (4) of section 29-1401, if the grand jury returns a no true bill:
(i) The grand jury shall create a grand jury report with the assistance of the prosecuting attorney. The grand jury report shall briefly provide an explanation of the grand jury's findings and any recommendations the grand jury determines to be appropriate based upon the grand jury's investigation and deliberations; and
(ii) The no true bill and the grand jury report shall be filed with the court, where they shall be available for public review, along with the grand jury transcript provided for in subsection (3) of section 29-1407.01.
Source:G.S.1873, c. 58, § 397, p. 814; R.S.1913, § 9036; C.S.1922, § 10060; C.S.1929, § 29-1406; R.S.1943, § 29-1406;
Laws 1979, LB 524, § 1; Laws 2016, LB1000, § 7; Laws 2020, LB881, § 15.
Annotations
Wide discretion is allowed judge in charge, which appellate court will not control. Clair v. State, 40 Neb. 534, 59 N.W. 118 (1894).
29-1407.
Grand jury; duties.After the charge of the court, the grand jury shall retire with the officer appointed to attend to them, and shall proceed to inquire of and present all offenses whatever committed within the limits of the county in and for which they were impaneled and sworn or affirmed.
Source:G.S.1873, c. 58, § 398, p. 814; R.S.1913, § 9037; C.S.1922, § 10061; C.S.1929, § 29-1407; Laws 1939, c. 18, § 20, p. 111; C.S.Supp.,1941, § 29-1407; R.S.1943, § 29-1407; Laws 1959, c. 118, § 4, p. 450;
Laws 1979, LB 524, § 2.
Annotations
"All offenses" embrace misdemeanors. Nelson v. State, 115 Neb. 26, 211 N.W. 175 (1926).
29-1407.01.
Grand jury proceedings; reporter; duties; transcript; exhibits; statements; availability.(1) A certified or authorized reporter shall be present at all grand jury sessions. All grand jury proceedings and testimony from commencement to adjournment shall be reported. Except as otherwise provided in this section, no copies of transcripts of, or exhibits from, such proceedings shall be made available.
(2) Except as provided in subsection (3) of this section:
(a) The reporter's stenography notes and tape recordings shall be preserved and sealed and any transcripts which may be prepared shall be preserved, sealed, and filed with the court;
(b) No release or destruction of the notes or transcripts shall occur without prior court approval; and
(c) No copies of such transcript or exhibits shall be made available.
(3)(a) This subsection applies to a grand jury impaneled pursuant to subsection (4) of section 29-1401.
(b) A transcript, including any exhibits of the grand jury proceedings, and a copy of such transcript and copies of such exhibits shall be prepared at court expense and shall be filed with the court. Such transcript shall not include the names of grand jurors or their deliberations.
(c) If the grand jury returns a no true bill, a copy of the transcript, including a copy of any exhibits, shall be available for public review upon written request to the clerk of the district court. Such review shall be made at a reasonable time set by the clerk of the district court. Except as otherwise provided in this subdivision, no copies of such transcript or exhibits shall be made available.
(d)(i) If the grand jury returns a true bill, once a trial court is assigned and the criminal case docketed, any of the parties to the criminal case, within five days of the criminal case being docketed, may file a motion for a protective order requesting a hearing before the trial court to request a delay of the public review of the transcript, including any exhibits, of the grand jury proceedings. Except as otherwise provided in this subdivision, no copies of such transcript or exhibits shall be made available.
(ii) If after a hearing the trial court grants the request for a protective order, then any public review of the transcript, including any exhibits, of the grand jury proceedings shall not take place until the conclusion of the criminal prosecution. Conclusion of the criminal prosecution means an acquittal, a dismissal, or, if there is a conviction, when the direct appeal process has concluded. Once the criminal prosecution has concluded, a copy of the transcript, including a copy of any exhibits, shall be available for public review upon written request to the clerk of the district court. Such review shall be made at a reasonable time set by the clerk of the district court. Except as otherwise provided in this subdivision, no copies of such transcript or exhibits shall be made available.
(iii) If after a hearing the trial court denies the request for a protective order, then a copy of the transcript, including a copy of any exhibits, shall be available for public review once the trial court's order is filed and upon written request to the clerk of the district court. Such review shall be made at a reasonable time set by the clerk of the district court. Except as otherwise provided in this subdivision, no copies of such transcript or exhibits shall be made available.
(iv) If no party to the criminal case files a motion for a protective order within the time provided in subdivision (3)(d)(i) of this section, then a copy of the transcript, including a copy of any exhibits, shall be available for public review upon written request to the clerk of the district court. Such review shall be made at a reasonable time set by the clerk of the district court. Except as otherwise provided in this subdivision, no copies of such transcript or exhibits shall be made available.
(4) Upon application by the prosecutor or by any witness after notice to the prosecutor, the court, for good cause, may enter an order to furnish to that witness a transcript of his or her own grand jury testimony or exhibits relating thereto.
(5) Any witness summoned to testify before a grand jury, or an attorney for such witness with the witness's written approval, shall be entitled, prior to testifying, to examine and copy at the witness's expense any statement in the possession of the prosecuting attorney or the grand jury which such witness has made that relates to the subject matter under inquiry by the grand jury. If a witness is proceeding in forma pauperis, he or she shall be furnished, upon request, a copy of such transcript and shall not pay a fee.
Annotations
A hearing on a motion concerning the public disclosure of grand jury documents is a special proceeding. In re Grand Jury of Douglas Cty., 302 Neb. 128, 922 N.W.2d 226 (2019).
An order regarding the public disclosure of grand jury documents is made during a special proceeding. In re Grand Jury of Douglas Cty., 302 Neb. 128, 922 N.W.2d 226 (2019).
In a special proceeding, an order is final and appealable if it affects a substantial right of the aggrieved party. In re Grand Jury of Douglas Cty., 302 Neb. 128, 922 N.W.2d 226 (2019).
Where the State violated this section by providing witnesses copies of their grand jury testimony without a court order, violation was subject to harmless error review, because it was a trial error instead of a structural error. State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007).
Court approval for the release of grand jury proceedings when there has been a "no true bill" is limited by statute to witnesses and to other courts. In re Grand Jury of Lancaster Cty., 269 Neb. 436, 693 N.W.2d 285 (2005).
29-1408.
County attorney; powers; special prosecutor; when appointed.The county attorney or the assistant county attorney shall be allowed at all times to appear before the grand jury for the purpose of giving information relative to any matter cognizable by such jury, or giving such jury advice upon any legal matter the jury may require, and such county attorney or assistant county attorney may interrogate witnesses before the jury when the grand jurors, the county attorney, or the assistant county attorney shall deem it necessary; except that no person shall be permitted to remain in the room with such jury while the grand jurors are expressing their views or giving their votes on any matter before the jury; Provided, whenever it shall be made to appear to the judge or judges of the district court that investigation should be made regarding official acts of county officials, the foreman shall forthwith notify the Governor of the state, who shall forthwith appoint a special prosecutor to appear and act in the place of the county attorney or the assistant county attorney in all matters relating thereto before such grand jury in like manner as though county attorney; and the county attorney or the assistant county attorney shall be excluded from the presence of the grand jury during all proceedings which relate to the subject matter for which the special prosecutor was appointed; except that nothing in this section shall prevent the county attorney or assistant county attorney from appearing as a witness before a grand jury for which a special prosecutor has been appointed.
Source:G.S.1873, c. 58, § 399, p. 814; R.S.1913, § 9038; C.S.1922, § 10062; C.S.1929, § 29-1408; Laws 1939, c. 18, § 21, p. 112; C.S.Supp.,1941, § 29-1408; R.S.1943, § 29-1408; Laws 1980, LB 635, § 1.
29-1409.
Subpoenas; issuance; advisement of rights; form; effect.(1) Whenever required by the grand jury, or the prosecuting attorney, the clerk of the court in which such jury is impaneled shall issue subpoenas and other process to bring witnesses to testify before such grand jury.
(2) At the option of the prosecuting attorney, a grand jury subpoena may contain an advisement of rights. If the prosecuting attorney determines that an advisement is necessary, the grand jury subpoena shall contain the following prominently displayed on the front of the subpoena:
NOTICE
(a) You have the right to retain an attorney to represent you and to advise you regarding your grand jury appearance.
(b) Anything you say to the grand jury may be used against you in a court of law.
(c) You have the right to refuse to answer questions if you feel the answers would tend to incriminate you or to implicate you in any illegal activity.
(d) If you cannot afford or obtain an attorney, you may consult with the public defender's office, or request the court to appoint an attorney to represent you.
(3) Any witness who is not advised of his or her rights pursuant to subsection (2) of this section shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he or she testifies or any evidence he or she produces, nor shall any such testimony or evidence be used as evidence in any criminal proceeding, except for perjury, against him or her in any court.
Source:G.S.1873, c. 58, § 400, p. 815; R.S.1913, § 9039; C.S.1922, § 10063; C.S.1929, § 29-1409; R.S.1943, § 29-1409;
Laws 1979, LB 524, § 4.
29-1410.
Witness; oath or affirmation; administration.Before any witness shall be examined by the grand jury, an oath or affirmation shall be administered to him by the clerk truly to testify of such matters and things as may be lawfully inquired of before the jury, a certificate whereof the clerk shall make and deliver to such witness, who shall present the same to the foreman of the grand jury when he is admitted for examination.
Source:G.S.1873, c. 58, § 401, p. 815; R.S.1913, § 9040; C.S.1922, § 10064; C.S.1929, § 29-1410; R.S.1943, § 29-1410.
Annotations
Oath of secrecy of grand jury deliberations is not prohibited. State v. Abboud, 181 Neb. 84, 147 N.W.2d 152 (1966).
29-1410.01.
Request to testify or appear; denial; how treated.Any person may approach the prosecuting attorney or the grand jury and request to testify or retestify in an inquiry before a grand jury or to appear before a grand jury. The prosecuting attorney or the grand jury shall keep a record of all denials of such requests to that prosecuting attorney or grand jury, including the reasons for not allowing such person to testify or appear. If the person making such request is dissatisfied with the decision of the prosecuting attorney or the grand jury, such person may petition the court for hearing on the denial by the prosecuting attorney or the grand jury. If the court grants the hearing, then the court may permit the person to testify or appear before the grand jury if the court finds that such testimony or appearance would serve the interests of justice.
29-1411.
Witness; privilege against self-incrimination; immunity; right to counsel; refusal to answer; procedure.(1) In any proceeding before the grand jury, if the prosecuting attorney has written notice in advance of the appearance of a witness that such witness intends to exercise his or her privilege against self-incrimination, such witness shall not be compelled to appear before the grand jury unless a grant of immunity has been obtained.
(2) Any witness subpoenaed to appear and testify before a grand jury or to produce books, papers, documents, or other objects before such grand jury shall be entitled to assistance of counsel during any time that such witness is being questioned in the presence of such grand jury, and counsel may be present in the grand jury room with his or her client during such questioning. Counsel for the witness shall be permitted only to counsel with the witness and shall not make objections, arguments, or address the grand jury. Such counsel may be retained by the witness or may, for any person financially unable to obtain adequate assistance, be appointed in the same manner as if that person were eligible for appointed counsel. An attorney present in the grand jury room shall take an oath of secrecy. If the court, at an in camera hearing, determines that counsel was disruptive, then the court may order counsel to remain outside the courtroom when advising his or her client. No attorney shall be permitted to provide counsel in the grand jury room to more than one witness in the same criminal investigation, except with the permission of the grand jury.
(3) If any witness appearing before a grand jury shall refuse to answer any interrogatories during the course of his or her examination, the fact shall be communicated to the court in writing, in which the question refused to be answered shall be stated, together with the excuse for the refusal, if any be given by the person interrogated. The court shall thereupon determine whether the witness is bound to answer or not, and the grand jury shall be immediately informed of the decision.
Source:G.S.1873, c. 58, § 402, p. 815; R.S.1913, § 9041; C.S.1922, § 10065; C.S.1929, § 29-1411; R.S.1943, § 29-1411;
Laws 1979, LB 524, § 6.
29-1412.
Witness; refusal to testify or provide other information; contempt; right to counsel; penalty; hearing; confinement; limitation.(1)(a) Whenever a witness in any proceeding before any grand jury refuses, without just cause shown, to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording, or other material, the prosecuting attorney may submit an application to the court for an order directing the witness to show why the witness should not be held in contempt. After submission of such application and a hearing at which the witness may be represented by counsel, the court may, if the court finds that such refusal was without just cause, hold the witness in contempt and order the witness to be confined or to pay a fine of not to exceed five hundred dollars. Such confinement shall continue until such time as the witness is willing to give such testimony or provide such information, except that the court may release the witness from confinement if the court determines that further confinement will not cause the witness to give such testimony or provide such information. No period of such confinement shall exceed the term of the grand jury, including extensions, before which such refusal to comply with the court order occurred, and in no event shall such confinement exceed six months.
(b) If a witness has been confined in accordance with subsection (1)(a) of this section, he or she may, upon petition filed with the court, request a hearing to be held within ten days to review the contempt order at which hearing he or she shall have the right to be represented by counsel. The court, at the hearing, may rescind, modify, or affirm the order.
(c) In any proceeding conducted under this section, counsel may be appointed for a person financially unable to obtain adequate assistance.
(2) No person who has been confined or fined by a court for refusal to testify or provide other information concerning any criminal incident or incidents in any proceeding before a grand jury impaneled before any district court shall again be confined or fined for a subsequent refusal to testify or provide other information concerning the same criminal incident or incidents before any grand jury.
Source:G.S.1873, c. 58, § 403, p. 815; R.S.1913, § 9042; C.S.1922, § 10066; C.S.1929, § 29-1412; R.S.1943, § 29-1412;
Laws 1979, LB 524, § 7.
29-1412.01.
Grand jury; subpoena to testify or produce documents; not required to comply; when.No person subpoenaed to testify or to produce books, papers, documents, or other objects in any proceeding before any grand jury shall be required to testify or to produce such objects, or be confined as provided in section 29-1412, for his or her failure to so testify or produce such object if, upon filing a motion and, upon an evidentiary hearing before the court which issued such subpoena or a court having jurisdiction under this section, the court finds that:
(1) A primary purpose or effect of requiring such person to so testify or to produce such objects before the grand jury is or will be to secure testimony for trial for which the defendant has already been charged by information, indictment, or criminal complaint;
(2) Compliance with a subpoena would be unreasonable or oppressive;
(3) A primary purpose of the issuance of the subpoena is to harass the witness;
(4) The witness has already been confined or fined under this section for his or her refusal to testify before any grand jury investigating the same transaction, set of transactions, event, or events; or
(5) The witness has not been advised of his or her rights as specified in subsection (2) of section 29-1409.
29-1413.
Vacancy; how filled.In case of the sickness, death, discharge or nonattendance of any grand juror, after the grand jury shall be affirmed or sworn, it shall be lawful for the court, at its discretion to cause another to be sworn or affirmed in his stead.
Source:G.S.1873, c. 58, § 404, p. 815; R.S.1913, § 9043; C.S.1922, § 10067; C.S.1929, § 29-1413; R.S.1943, § 29-1413.
29-1414.
Disclosure of indictment; when prohibited.No grand juror or officer of the court shall disclose that an indictment has been found against any person not in custody or under bail, except by the issuing of process, until the indictment is filed.
Source:G.S.1873, c. 58, § 406, p. 815; R.S.1913, § 9044; C.S.1922, § 10068; C.S.1929, § 29-1414; R.S.1943, § 29-1414;
Laws 2018, LB193, § 52.
29-1415.
Disclosure of juror's vote or opinion; prohibited.No grand juror shall be allowed to state or testify in any court in what manner he or other members of the grand jury voted on any question before them, or what opinion was expressed by any juror in relation to such question.
Source:G.S.1873, c. 58, § 407, p. 815; R.S.1913, § 9045; C.S.1922, § 10069; C.S.1929, § 29-1415; R.S.1943, § 29-1415.
29-1416.
Indictment; how found; endorsement; no true bill; effect.(1) At least twelve of the grand jurors must concur in the finding of an indictment; when so found the foreman shall endorse on such indictment the words A true bill, and subscribe his or her name thereto as foreman.
(2) Once a grand jury has returned a no true bill based upon a transaction, set of transactions, event, or events, a grand jury inquiry into the same transaction or events shall not be initiated unless the court finds, upon a proper showing by the prosecuting attorney, that the prosecuting attorney has discovered additional evidence relevant to such inquiry.
Source:G.S.1873, c. 58, § 408, p. 816; R.S.1913, § 9046; C.S.1922, § 10070; C.S.1929, § 29-1416; R.S.1943, § 29-1416;
Laws 1979, LB 524, § 9.
Annotations
Indictment must be endorsed and endorsement subscribed by foreman. Goldsberry v. State, 92 Neb. 211, 137 N.W. 1116 (1912).
29-1417.
County jail; examination; report.The grand jury may at each term of the court at which they may be in attendance, visit the county jail, and examine and report its condition, as required by law.
Source:G.S.1873, c. 58, § 409, p. 816; R.S.1913, § 9047; C.S.1922, § 10071; C.S.1929, § 29-1417; R.S.1943, § 29-1417; Laws 1959, c. 118, § 5, p. 451.
Cross References
Jails, duty of grand juries and county boards to inspect, see section 47-108 et seq.
29-1418.
Indictments; presentation; filing; finding of probable cause; dismissal; motions.(1) Indictments returned by a grand jury shall be presented by their foreman to the court and shall be filed with the clerk, who shall endorse thereon the day of their filing and shall enter each case upon the register of actions and the date when the parties indicted have been arrested.
(2) Any grand jury may indict a person for an offense when the evidence before such grand jury provides probable cause to believe that such person committed such offense.
(3) The district court before which the indicted defendant is to be tried shall dismiss any indictment of the grand jury if such district court finds, upon the filing of a motion by the indicted defendant based upon the grand jury record without argument or further evidence, that the grand jury finding of probable cause is not supported by the record.
(4) Any other motions testing the validity of the indictment may be heard by the court based only on the record and argument of counsel, unless there is cause shown for the need for additional evidence.
Source:G.S.1873, c. 58, § 410, p. 816; R.S.1913, § 9048; C.S.1922, § 10072; C.S.1929, § 29-1418; R.S.1943, § 29-1418;
Laws 1979, LB 524, § 10; Laws 2018, LB193, § 53.
Annotations
Any error in a ruling on a motion to dismiss under subsection (3) of this section based on the sufficiency of evidence before a grand jury is cured by a subsequent finding at trial of guilt beyond a reasonable doubt which is supported by sufficient evidence. State v. Chauncey, 295 Neb. 453, 890 N.W.2d 453 (2017).
This section requires the clerk of the trial court to endorse upon an indictment the date of its filing and to enter the case upon the docket. State v. Muse, 15 Neb. App. 13, 721 N.W.2d 661 (2006).
29-1419.
Trial of indictments; recognizances; undisposed indictments; trial by special prosecutor; when.The court shall assign such indictments for trial at as early a time in such term as is practicable. And the recognizances of parties and witnesses shall, in all such causes, be taken for their appearance at the time so assigned; and in case of the continuance of any cause to the next term of court, such recognizances shall be for the appearance of the parties and witnesses on such day thereof as the court may direct. At the end of the term the clerk shall deliver the indictments undisposed of to the prosecuting attorney for safekeeping; Provided, however, that where a special prosecutor shall have been appointed by the Governor of the state for the assistance of such grand jury, then the trials of indictments growing out of matters concerning which he has been appointed shall be conducted by such special prosecutor so appointed in all respects as though such special prosecutor were such county attorney; and all provisions relating to the acts of county attorneys shall be deemed to apply to such special prosecutor.
Source:G.S.1873, c. 58, § 411, p. 816; R.S.1913, § 9049; C.S.1922, § 10073; C.S.1929, § 29-1419; Laws 1939, c. 18, § 22, p. 112; C.S.Supp.,1941, § 29-1419; R.S.1943, § 29-1419.
Annotations
Trial of all indictments shall be had in district court for county in which same were found, and includes indictments for misdemeanors. Nelson v. State, 115 Neb. 26, 211 N.W. 175 (1926).
29-1420.
Report; made public; when; transfer of evidence.(1) Except as provided in subdivision (2)(g) of section 29-1406, the report of the grand jury shall not be made public except when the report is filed, including indictments, or when required by statute or except that all of the report or a portion thereof may be released if the judge of the district court finds that such a release will exonerate a person or persons who have requested such a release.
(2) A district judge under whose direction a grand jury has been impaneled may, upon good cause shown, transfer to a court of competent jurisdiction in another county or jurisdiction any evidence gathered by the grand jury that offenses have been committed in such other county or jurisdiction.
Annotations
Court approval for the release of grand jury proceedings when there has been a "no true bill" is limited by statute to witnesses and to other courts. In re Grand Jury of Lancaster Cty., 269 Neb. 436, 693 N.W.2d 285 (2005).
Grand jury's report was not authorized for publication and was ordered expunged from the records of the district court. In re Grand Jury of Douglas Cty., 244 Neb. 798, 509 N.W.2d 212 (1993).
29-1501.
Indictment; when sufficient; irregularities.No indictment shall be deemed invalid, nor shall the trial, judgment or other proceedings be stayed, arrested or in any manner affected (1) by the omission of the words with force and arms, or any words of similar import; (2) by omitting to charge any offense to have been contrary to a statute or statutes; or (3) for the omission of the words as appears by the record nor for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense; nor for stating the time imperfectly; nor for want of a statement of the value or price of any matter or thing, or the amount of damages, or injury in any case where the value or price, or the amount of damages or injury is not of the essence of the offense; nor for the want of an allegation of the time or place of any material fact, when the time and place have once been stated in the indictment; nor that dates and numbers are represented by figures; nor for an omission to allege that the grand jurors were impaneled, sworn or charged; nor for any surplusage or repugnant allegation when there is sufficient matter alleged to indicate the crime or person charged; nor for want of the averment of any matter not necessary to be proved; nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.
Source:G.S.1873, c. 58, § 412, p. 816; R.S.1913, § 9050; C.S.1922, § 10074; C.S.1929, § 29-1501; R.S.1943, § 29-1501.
Cross References
Underlying offense committed because of a person's status or association with a person of a certain status, inclusion of allegations, see section 28-112.
Annotations
1. Sufficiency of indictment
2. Irregularities
3. Miscellaneous
1. Sufficiency of indictment
Neither the value of the property stolen nor the time at which it was appropriated are essential elements of the crime of theft. State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (1989).
An information charging an attempt to commit "robbery" is sufficient though it omits "with intent to steal", and allowing amendment to add those words during trial is not prejudicial error. State v. Last, 212 Neb. 596, 324 N.W.2d 402 (1982).
Permitting amendment as to date of prior felony alleged in information in habitual criminal charge was not error. State v. Harig, 192 Neb. 49, 218 N.W.2d 884 (1974).
An amendment adding an omitted allegation of a substantive element of the offense sought to be charged does not change the offense and may be permitted before verdict or findings in the discretion of the district judge. State v. Gascoigen, 191 Neb. 15, 213 N.W.2d 452 (1973).
There was no defect or imperfection in indictment which prejudiced the substantial rights of the defendant. State v. Adams, 181 Neb. 75, 147 N.W.2d 144 (1966).
In criminal prosecutions, a variance between an instrument alleged in the information and the evidence offered in proof thereof is not fatal, unless material to the merits of the case or prejudicial to defendant. Balis v. State, 137 Neb. 835, 291 N.W. 477 (1940).
In a criminal prosecution for picketing, failure to allege the essential elements of the statutory crime prejudices the substantial rights of the defendant. Dutiel v. State, 135 Neb. 811, 284 N.W. 321 (1939).
In prosecution for stealing cattle, it is not necessary to allege or prove the value of the property. Buthman v. State, 131 Neb. 385, 268 N.W. 99 (1936).
Immaterial variance between purported maker's name as it appeared in information and in the forged instrument received in evidence is not prejudicial, especially where defendant testified that it was executed in his presence. Flannigan v. State, 127 Neb. 640, 256 N.W. 321 (1934).
Information charging murder in first degree, stating name and authority of qualified informer, setting out elements of offense in simple, concise and direct language following statute and form approved by Supreme Court was sufficient. Hansen v. State, 121 Neb. 169, 236 N.W. 329 (1931).
Inaccurate statement in information of exact date of embezzlement does not affect proceedings. Gorton v. State, 117 Neb. 556, 221 N.W. 689 (1928).
Information must contain distinct allegation of each essential element of crime as defined by law creating it; must be in language of statute or its equivalent. Knothe v. State, 115 Neb. 119, 211 N.W. 619 (1926).
Information alleging all facts or elements necessary to constitute offense described in statute and intended to be punished is sufficient. McKenzie v. State, 113 Neb. 576, 204 N.W. 60 (1925).
In an indictment, causal connection between false pretenses and obtaining of note must be positively and explicitly stated. Anthony v. State, 109 Neb. 608, 192 N.W. 206 (1923).
It is unnecessary to specify portion of body on which wound is inflicted; words "upon the body" are sufficient. Morris v. State, 109 Neb. 412, 191 N.W. 717 (1922).
Where crime may be committed by several methods, indictment may charge commission by all, provided they are not inconsistent or repugnant. Brown v. State, 107 Neb. 120, 185 N.W. 344 (1921).
Where statute states elements of crime, it is sufficient to describe such crime in language of statute. Philbrick v. State, 105 Neb. 120, 179 N.W. 398 (1920); Goff v. State, 89 Neb. 287, 131 N.W. 213 (1911).
Information fairly and reasonably charging elements of crime of murder is sufficient. Blazka v. State, 105 Neb. 13, 178 N.W. 832 (1920).
Where time and place are stated in first count, allegations in subsequent counts that offense was then and there committed, were sufficient. Grier v. State, 81 Neb. 129, 115 N.W. 551 (1908).
Indictment must charge explicitly all essentials of the offense. Hase v. State, 74 Neb. 493, 105 N.W. 253 (1905).
Word "feloniously" serves no practical purposes where all essential elements of felony are charged. Richards v. State, 65 Neb. 808, 91 N.W. 878 (1902).
In an indictment or information for larceny, description of property should enable court to determine that the property is the subject of larceny, and advise accused with reasonable certainty of the property meant. Barnes v. State, 40 Neb. 545, 59 N.W. 125 (1894).
Several offenses of same kind for misdemeanor may be joined. Burrell v. State, 25 Neb. 581, 41 N.W. 399 (1889).
Indictment for murder must aver purpose to kill. Schaffer v. State, 22 Neb. 557, 35 N.W. 384 (1887).
It is not necessary that indictment use exact words of statute; words equivalent in meaning are sufficient. Kirk v. Bowling, 20 Neb. 260, 29 N.W. 928 (1886); Whitman v. State, 17 Neb. 224, 22 N.W. 459 (1885).
Indictment was not objectionable for duplicity. Denman v. State, 15 Neb. 138, 17 N.W. 347 (1883).
Indictment may contain count for murder in first degree, with one in second degree, and for manslaughter. Baldwin v. State, 12 Neb. 61, 10 N.W. 463 (1881).
Where information is in two counts, charging shooting with intent to kill and with intent to wound, state will not be compelled to elect. Candy v. State, 8 Neb. 482, 1 N.W. 454 (1879).
Information is not bad by reason of omission of formal conclusion. Smith v. State, 4 Neb. 277 (1876).
2. Irregularities
Irregularity in charge of contempt of court was controlled by this section. Cornett v. State, 155 Neb. 766, 53 N.W.2d 543 (1952).
Information is not invalidated by allegations that defendant had been convicted of chicken stealing in another state and committed to penitentiary in that state. Wiese v. State, 138 Neb. 685, 294 N.W. 482 (1940).
Indictment was not invalidated by unnecessary recitals. Kirchman v. State, 122 Neb. 624, 241 N.W. 100 (1932).
Where use of disjunctive does not result in prosecution for distinct or separate crimes, objection thereto cannot be successfully urged on appeal. Smith v. State, 109 Neb. 579, 191 N.W. 687 (1922).
It is improper to join misdemeanor and felony where former is not included offense. Longsine v. State, 105 Neb. 428, 181 N.W. 175 (1920).
Errors complained of did not tend to prejudice the substantial rights of defendant upon the merits. Bloom v. State, 95 Neb. 710, 146 N.W. 965 (1914).
3. Miscellaneous
This section is equally applicable to any formal charge on which a prosecution is based, including an indictment, information, or complaint. State v. Wehrle, 223 Neb. 928, 395 N.W.2d 142 (1986).
Where crime charged was assault with intent to commit rape by force, allegation in information as to age of complaining witness did not prejudice defendant. Frank v. State, 150 Neb. 745, 35 N.W.2d 816 (1949).
Name of witness to be called on trial need not be endorsed on indictment. Donnelly v. State, 86 Neb. 345, 125 N.W. 618 (1910).
State should be compelled to elect on which count it will proceed where two distinct offenses are charged. State v. Lawrence, 19 Neb. 307, 27 N.W. 126 (1886).
Time of illegal sale of liquor is only material to bring case within statute of limitations. Brown v. State, 16 Neb. 658, 21 N.W. 454 (1884).
Statement of exact time of commission of an offense is not regarded as a substantive element of the charge. Huffman v. Sigler, 352 F.2d 370 (8th Cir. 1965).
29-1502.
Variance in name or description; effect.Whenever on trial of any indictment for any offense there shall appear to be any variance between the statement in such indictment and the evidence offered in proof thereof in the given name or surname, or both given name and surname, or other description whatever of any person whomsoever therein named or described, or in the name or description of any matter or thing whatsoever therein named or described, such variance shall not be deemed ground for an acquittal of the defendant, unless the court before which the trial shall be had shall find that such variance is material to the merits of the case or may be prejudicial to the defendant.
Source:G.S.1873, c. 58, § 413, p. 817; R.S.1913, § 9051; C.S.1922, § 10075; C.S.1929, § 29-1502; R.S.1943, § 29-1502;
Laws 1999, LB 72, § 3.
Annotations
1. Sufficiency of complaint
2. Fatal variance
1. Sufficiency of complaint
Information charged offenses in language of statute; reference to complaining witnesses as three teenage girls, without using their names did not deceive, mislead, nor prejudice defendants in any particular. Nicholson v. Sigler, 183 Neb. 24, 157 N.W.2d 872 (1968).
In prosecution for sodomy amendments to information as to name of complaining witness and as to date of crime, time not being an ingredient, were not prejudicial. Sledge v. State, 142 Neb. 350, 6 N.W.2d 76 (1942).
Immaterial variance between purported maker's name as set out in information charging forgery and as it appeared in note offered in evidence was not ground for reversal. Flannigan v. State, 127 Neb. 640, 256 N.W. 321 (1934).
"Adolph" and "Adolf" are idem sonans, when both are used as Christian names in information. Bunge v. State, 87 Neb. 557, 127 N.W. 899 (1910).
In prosecution for malicious killing of animals, difference between information and proof as to number of animals killed and date of killing was not a fatal variance. Carson v. State, 80 Neb. 619, 114 N.W. 938 (1908).
On charge of forgery of receipt which referred to and incorporated another instrument, both must be set forth correctly. Sutton v. State, 58 Neb. 567, 79 N.W. 154 (1899).
Where time is not an ingredient of the crime, variance in proof is not fatal, if within statute of limitations. Palin v. State, 38 Neb. 862, 57 N.W. 743 (1894).
There was no variance between information charging crime was committed with bludgeon and proof showing club or bolt. Long v. State, 23 Neb. 33, 36 N.W. 310 (1888).
2. Fatal variance
Variance in names to be fatal must be such as to be material to merits of case or prejudicial to defendant. Marshall v. State, 116 Neb. 45, 215 N.W. 564 (1927); Goldsberry v. State, 66 Neb. 312, 92 N.W. 906 (1902).
There was a fatal variance where information charged false entry in an account of an individual with bank, and proof showed account with person as public official. Williams v. State, 51 Neb. 630, 71 N.W. 313 (1897).
In prosecution for perjury, variance between information and proof as to name of witness was fatal. Gandy v. State, 27 Neb. 707, 43 N.W. 747, 44 N.W. 108 (1889).
Where information charged obtaining money by false pretenses through use of draft, there was a fatal variance where instrument offered in evidence was not payable in money. Prehm v. State, 22 Neb. 673, 36 N.W. 295 (1888).
On indictment for forging of note, there was a fatal variance where information charged interest was payable semiannually and note offered in evidence called for interest payable annually. Haslip v. State, 10 Neb. 590, 7 N.W. 331 (1880).
29-1503.
Forgery; instruments; how described.In any indictment for falsely making, altering, forging, printing, photographing, uttering, disposing of or putting off any instrument, it shall be sufficient to set forth the purport and value thereof.
Source:G.S.1873, c. 58, § 414, p. 817; R.S.1913, § 9052; C.S.1922, § 10076; C.S.1929, § 29-1503; R.S.1943, § 29-1503.
Annotations
Variance between information charging forgery and note alleged to be forged was not fatal. Flannigan v. State, 127 Neb. 640, 256 N.W. 321 (1934).
Where information charged forgery of checks, it was proper, but not necessary, to set forth a copy of the endorsements on the back of the checks. Cooper v. State, 123 Neb. 605, 243 N.W. 837 (1932).
On information for forgery, variance not prejudicial to rights of defendant was immaterial. Burlingim v. State, 61 Neb. 276, 85 N.W. 76 (1901).
Forgery and fraudulent uttering of one instrument by same person is but one crime. Griffen v. State, 46 Neb. 282, 64 N.W. 966 (1895); In re Walsh, 37 Neb. 454, 55 N.W. 1075 (1893).
29-1504.
Offenses other than forgery; instruments; how described.In all cases other than those mentioned in section 29-1503, whenever it shall be necessary to make any averment in any indictment as to any instrument, whether the same consists wholly or in part of writing, print or figures, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof.
Source:G.S.1873, c. 58, § 416, p. 817; R.S.1913, § 9053; C.S.1922, § 10077; C.S.1929, § 29-1504; R.S.1943, § 29-1504.
29-1505.
Counterfeiting; instruments or means; how described.In any indictment for engraving or making the whole or any part of any instrument, matter or thing, or for using or having the unlawful custody or possession of any plate or other material upon which the whole or any part of any instrument, matter or thing shall have been engraved or made, or for having the unlawful custody or possession of any paper upon which the whole or any part of any instrument, matter or thing shall have been made or printed, it shall be sufficient to describe such instruments, matter or thing by any name or designation by which the same may be usually known.
Source:G.S.1873, c. 58, § 415, p. 817; R.S.1913, § 9054; C.S.1922, § 10078; C.S.1929, § 29-1505; R.S.1943, § 29-1505.
29-1506.
Intent to defraud; how alleged; proof.It shall be sufficient in any indictment where it shall be necessary to allege an intent to defraud, to allege that the party accused did the act with intent to defraud without alleging an intent to defraud any particular person or body corporate, and on the trial of any such indictment, it shall not be necessary to prove an intent to defraud any particular person, but it shall be sufficient to prove that the party accused did the act charged with intent to defraud.
Source:G.S.1873, c. 58, § 417, p. 818; R.S.1913, § 9055; C.S.1922, § 10079; C.S.1929, § 29-1506; R.S.1943, § 29-1506.
Annotations
In prosecution for uttering forged check, it was not necessary to allege intent to defraud any particular person. Benedict v. State, 166 Neb. 295, 89 N.W.2d 82 (1958).
Omission from information of name of party defrauded does not render information insufficient. Bullington v. State, 123 Neb. 432, 243 N.W. 273 (1932).
On indictment for forgery, it is sufficient to allege intent to defraud without specifying any particular person. Davis v. State, 58 Neb. 465, 78 N.W. 930 (1899).
Information is sufficient if it charges intent to defraud in general terms. Morearty v. State, 46 Neb. 652, 65 N.W. 784 (1896).
29-1507.
Ownership by more than one person; how alleged.When any offense is committed upon or in relation to any property belonging to several partners, limited liability company members, or owners, and an indictment for such offense is returned, the allegation of ownership therein shall be sufficient if it alleges that such property belonged to any one or more of such partners, limited liability company members, or owners, without naming all of them.
Source:G.S.1873, c. 58, § 418, p. 818; R.S.1913, § 9056; C.S.1922, § 10080; C.S.1929, § 29-1507; R.S.1943, § 29-1507;
Laws 1993, LB 121, § 191; Laws 1994, LB 884, § 55.
Annotations
Allegation of ownership is not an essential element in charging the crime of burglary. Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533 (1946).
When property of several partners is stolen, information is sufficient if it alleges property belongs to any one or more of such partners. Brown v. State, 103 Neb. 271, 171 N.W. 906 (1919).
In charging offense upon property of several owners, it is sufficient to allege ownership in one or more. Brinegar v. State, 82 Neb. 558, 118 N.W. 475 (1908).
29-1508.
Joinder of offenses with larceny; finding of guilty on any count.An indictment for larceny may contain also a count for obtaining the same property by false pretenses, or a count for embezzlement thereof, and for receiving or concealing the same property, knowing it to have been stolen; and the jury may convict of either offense, and may find all or any of the persons indicted guilty of either of the offenses charged in the indictment.
Source:G.S.1873, c. 58, § 419, p. 818; R.S.1913, § 9057; C.S.1922, § 10081; C.S.1929, § 29-1508; R.S.1943, § 29-1508.
Annotations
Different felonies of same grade, subject to same punishment, may be charged in separate counts. Sheppard v. State, 104 Neb. 709, 178 N.W. 616 (1920).
Prosecution for receiving stolen property may be had in this state although property was stolen in another state. In prosecution for receiving stolen property, it is necessary to allege and prove that defendant knew that property was stolen. Egan v. State, 97 Neb. 731, 151 N.W. 237 (1915).
Information for larceny may contain also a count for receiving the stolen property. Korab v. State, 93 Neb. 66, 139 N.W. 717 (1913); Brown v. State, 88 Neb. 411, 129 N.W. 545 (1911).
Different criminal acts, part of same transaction, may be charged in same indictment. Lawhead v. State, 46 Neb. 607, 65 N.W. 779 (1896).
29-1509.
Money; how described; proof.In every indictment in which it shall be necessary to make any averment as to any money or bank bills or notes, United States treasury notes, postal and fractional currency, or other bills, bonds or notes, issued by lawful authority and intended to pass and circulate as money, it shall be sufficient to describe such money or bills, notes, currency or bonds simply as money, without specifying any particular coin, note, bill or bond; and such allegation shall be sustained by proof of any amount of coin or of any such note, bill, currency or bond, although the particular species of coin of which such amount was composed, or the particular nature of such note, bill, currency or bond shall not be proved.
Source:G.S.1873, c. 58, § 420, p. 818; R.S.1913, § 9058; C.S.1922, § 10082; C.S.1929, § 29-1509; R.S.1943, § 29-1509.
Annotations
This section excuses in indictment particularity in description as to money. Bartley v. State, 55 Neb. 294, 75 N.W. 832 (1898).
Averment as to character of money stolen is surplusage. Tracey v. State, 46 Neb. 361, 64 N.W. 1069 (1895).
29-1510.
Election cases; allegation of legality; sufficiency.When an offense shall be committed in relation to any election and an indictment for such offense is returned, the allegation of the legality and regularity of such election shall be sufficient if it alleges that such election was authorized by law, without stating the names of the officers holding the election, or the persons voted for, or the offices to be filled at such election.
Source:G.S.1873, c. 58, § 421, p. 818; R.S.1913, § 9059; C.S.1922, § 10083; C.S.1929, § 29-1510; R.S.1943, § 29-1510.
29-1511.
Perjury and subornation; allegations; sufficiency.In every indictment for perjury or subornation of perjury it shall be sufficient to set forth the substance of the offense charged upon the defendant, and before what court the oath or affirmation was taken, averring such court or authority to have full power to administer the same, together with the proper averment or counts to falsify the matter or matters wherein the perjury is assigned, without setting forth any part of any record or proceeding, in law or equity, other than as aforesaid, and without setting forth the commission or authority of the court, or other authority before whom the perjury was committed.
Source:G.S.1873, c. 58, § 422, p. 818; R.S.1913, § 9060; C.S.1922, § 10084; C.S.1929, § 29-1511; R.S.1943, § 29-1511.
Annotations
To sustain information charging perjury, alleged false testimony must be in respect to matter material in action in which given. Shevalier v. State, 85 Neb. 366, 123 N.W. 424 (1909).
Applied to all cases where grand juries were required before act took effect. Jones v. State, 18 Neb. 401, 25 N.W. 527 (1885).
29-1512.
Manslaughter; allegations; sufficiency.In any indictment for manslaughter, it shall not be necessary to set forth the manner in which, or the means by which, the death was caused; but it shall be sufficient to charge that the defendant did unlawfully kill and slay the deceased.
Source:G.S.1873, c. 58, § 425, p. 819; R.S.1913, § 9061; C.S.1922, § 10085; C.S.1929, § 29-1512; R.S.1943, § 29-1512.
Annotations
Information drawn in language of statute is sufficient to charge manslaughter arising from leaving motor vehicle illegally parked on highway. Vaca v. State, 150 Neb. 516, 34 N.W.2d 873 (1948).
In charging crime of manslaughter, it is not necessary to set forth the manner or means by which death was caused. Anderson v. State, 150 Neb. 116, 33 N.W.2d 362 (1948).
This section is constitutional, and any information drawn in the language of the statute is sufficient to properly charge the crime. Puckett v. State, 144 Neb. 876, 15 N.W.2d 63 (1944); Cowan v. State, 140 Neb. 837, 2 N.W.2d 111 (1942).
29-1601.
Prosecutions on information; authorized.The several courts of this state shall possess and may exercise the same power and jurisdiction to hear, try and determine prosecutions upon information, for crimes, misdemeanors and offenses, to issue writs and process, and do all other acts therein, as they possess and may exercise in cases of the like prosecutions upon indictments.
Source:Laws 1885, c. 108, § 1, p. 397; R.S.1913, § 9062; C.S.1922, § 10086; C.S.1929, § 29-1601; R.S.1943, § 29-1601.
Annotations
1. Prosecution on information
2. Constitutionality
3. Miscellaneous
1. Prosecution on information
Prosecution on information is authorized. Duggan v. Olson, 146 Neb. 248, 19 N.W.2d 353 (1945).
Prosecution upon information verified and filed by acting county attorney is good against attack by habeas corpus. State ex rel. Gossett v. O'Grady, 137 Neb. 824, 291 N.W. 497 (1940).
District court may try misdemeanor charged in information as proper exercise of its original jurisdiction. Nelson v. State, 115 Neb. 26, 211 N.W. 175 (1926).
Prosecution for murder may be by information. Hawkins v. State, 60 Neb. 380, 83 N.W. 198 (1900).
2. Constitutionality
Prosecution on information is not a violation of due process of law clause. Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124 (1946).
Prosecution of criminal offenses by information does not violate rule of uniformity required by Constitution. Dinsmore v. State, 61 Neb. 418, 85 N.W. 445 (1901).
This section does not conflict with Fourteenth Amendment. Bolln v. Nebraska, 176 U.S. 83 (1900).
3. Miscellaneous
Indictment by a grand jury is not required in the State of Nebraska. State v. Lehman, 203 Neb. 341, 278 N.W.2d 610 (1979).
Person accused of felony must be charged by information or indictment disclosing nature and cause of accusation. Stowe v. State, 117 Neb. 440, 220 N.W. 826 (1928).
Pendency of former information, for same offense, is no ground for plea in abatement. Roby v. State, 61 Neb. 218, 85 N.W. 61 (1901).
29-1602.
Information; by whom filed and subscribed; names of witnesses; endorsement.All informations shall be filed in the court having jurisdiction of the offense specified therein, by the prosecuting attorney of the proper county as informant. The prosecuting attorney shall subscribe his or her name thereto and endorse thereon the names of the witnesses known to him or her at the time of filing. After the information has been filed, the prosecuting attorney shall endorse on the information the names of such other witnesses as shall then be known to him or her as the court in its discretion may prescribe, except that if a notice of aggravation is contained in the information as provided in section 29-1603, the prosecuting attorney may endorse additional witnesses at any time up to and including the thirtieth day prior to the trial of guilt.
Source:Laws 1885, c. 108, § 2, p. 397; R.S.1913, § 9063; Laws 1915, c. 164, § 1, p. 335; C.S.1922, § 10087; C.S.1929, § 29-1602; R.S.1943, § 29-1602;
Laws 2002, Third Spec. Sess., LB 1, § 4; Laws 2015, LB268, § 11; Referendum 2016, No. 426.
Note: The changes made to section 29-1602 by Laws 2015, LB 268, section 11, have been omitted because of the vote on the referendum at the November 2016 general election.
Annotations
1. Information
2. Endorsement of witnesses before trial
3. Endorsement of witnesses during trial
1. Information
The State must endorse a list of witnesses known to it, but it need not highlight a witness' expert status. State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
The requirement that the names of the witnesses for the State must be endorsed upon the information has no application to rebuttal witnesses. State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
The purpose of this section is to notify the defendant as to witnesses who may testify against him or her and give him or her an opportunity to investigate them. State v. Cebuhar, 252 Neb. 796, 567 N.W.2d 129 (1997).
The purpose of this section is to notify the defendant as to witnesses who may testify against him and give him an opportunity to investigate them. State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).
To obtain a reversal on the grounds the trial court erred in permitting additional endorsements, the defendant must show he was prejudiced by the additional testimony. State v. Ellis, 223 Neb. 779, 393 N.W.2d 719 (1986).
The purpose of the requirement contained in this section, that the names of witnesses for the prosecution be listed on the information, is to inform the defendant of the names of persons who will testify against him and give him an opportunity to investigate regarding their background and pertinent knowledge. State v. Journey, 201 Neb. 607, 271 N.W.2d 320 (1978).
The failure to endorse on the information the names of witnesses called by the state is not grounds for reversal of conviction in absence of prejudice. State v. Keith, 189 Neb. 536, 203 N.W.2d 500 (1973).
Failure to endorse names of witnesses on an information is error, but not necessarily prejudicial error. State v. Adels, 186 Neb. 849, 186 N.W.2d 908 (1971); Nicholson v. Sigler, 183 Neb. 24, 157 N.W.2d 872 (1968).
Information was properly filed in office of clerk of the district court. Shepperd v. State, 168 Neb. 464, 96 N.W.2d 261 (1959).
Informations must be filed in county where crime was committed. State v. Furstenau, 167 Neb. 439, 93 N.W.2d 384 (1958).
Prosecution on information is not in violation of state or federal Constitution. Duggan v. Olson, 146 Neb. 248, 19 N.W.2d 353 (1945).
While county attorney should file information, defect arising from filing being made by some other person may be waived by failure to move to quash prior to trial. State ex rel. Gossett v. O'Grady, 137 Neb. 824, 291 N.W. 497 (1940).
Information may be made, signed, verified, and filed by deputy county attorney. Thompson v. O'Grady, 137 Neb. 641, 290 N.W. 716 (1940).
Assistant attorney general does not have authority to make and sign information in his own name. Carlsen v. State, 127 Neb. 11, 254 N.W. 744 (1934); Lower v. State, 106 Neb. 666, 184 N.W. 174 (1921).
Information may be filed in vacation in court having jurisdiction of offense. Marshall v. State, 116 Neb. 45, 215 N.W. 564 (1927).
Information, signed by proper prosecuting officer, must be filed or indictment by grand jury returned, to give jurisdiction. Langford v. State, 114 Neb. 207, 206 N.W. 756 (1925).
In criminal case, it is not essential to validity of information that it show upon face term of court at which filed or that it was filed during term time. Mares v. State, 112 Neb. 619, 200 N.W. 448 (1924).
As matter of right, accused is not entitled to additional copy of information because, with his knowledge, additional names endorsed or amendment in immaterial respect made. Eigbrett v. State, 111 Neb. 388, 196 N.W. 700 (1923).
Information can be amended provided the amendment does not change the offense charged. Razee v. State, 73 Neb. 732, 103 N.W. 438 (1905).
Court may compel county attorney to elect upon which count he will rely. Blair v. State, 72 Neb. 501, 101 N.W. 17 (1904).
It is unnecessary to obtain leave of court before filing information. Sharp v. State, 61 Neb. 187, 85 N.W. 38 (1901).
Defective indictment may be withdrawn and information filed charging same offense. Alderman v. State, 24 Neb. 97, 38 N.W. 36 (1888).
Witnesses for the state must be listed on the information. Ronzzo v. Sigler, 235 F.Supp. 839 (D. Neb. 1964).
2. Endorsement of witnesses before trial
Pursuant to this section, a trial court may, in the exercise of its discretion, permit the names of additional witnesses to be endorsed upon an information after the information has been filed when doing so does not prejudice the defendant in the preparation of a defense. State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).
Requirement that names of state's witnesses be endorsed on the information has no application to rebuttal witnesses. State v. Pratt, 197 Neb. 382, 249 N.W.2d 495 (1977).
Failure to have names of known witnesses endorsed on information was error but not prejudicial. Waite v. State, 169 Neb. 113, 98 N.W.2d 688 (1959).
Endorsing names of witnesses is not required on information charging violation of probation. Young v. State, 155 Neb. 261, 51 N.W.2d 326 (1952).
One of purposes of section is to enable defendant's attorney to confer with client and have time to make a good-faith investigation as to facts about witnesses and their connection with case. Dolen v. State, 148 Neb. 317, 27 N.W.2d 264 (1947).
Where name of witness was endorsed on information before trial but omitted from copy served on defendant, it is not error for witness to testify, in absence of showing of prejudice, and where no continuance was requested at the time. Allen v. State, 129 Neb. 722, 262 N.W. 675 (1935).
Trial judge has discretion to permit prosecuting attorney to endorse names of additional witnesses on information before trial and where defendant does not request continuance, his rights are not prejudiced. Wilson v. State, 120 Neb. 468, 233 N.W. 461 (1930).
Trial judge, in his discretion, may permit additional witnesses to be endorsed on information, before trial. Eigbrett v. State, 111 Neb. 388, 196 N.W. 700 (1923); Wilson v. State, 87 Neb. 638, 128 N.W. 38 (1910); Reed v. State, 75 Neb. 509, 106 N.W. 649 (1906); Fager v. State, 49 Neb. 439, 68 N.W. 611 (1896).
Where name of witness is omitted from copy of information served on defendant, it is not error to permit witness to testify where prejudice is not shown or continuance or postponement of trial is not asked for. Frey v. State, 109 Neb. 483, 191 N.W. 693 (1922).
It is not required that all witnesses whose names are endorsed on information be called. Bloom v. State, 95 Neb. 710, 146 N.W. 965 (1914).
Endorsement of names on information is sufficient, though misspelled in copy. Rownd v. State, 93 Neb. 427, 140 N.W. 790 (1913).
Strictly rebutting testimony may be introduced even though names of witnesses giving it are not endorsed on information. Ossenkop v. State, 86 Neb. 539, 126 N.W. 72 (1910); Clements v. State, 80 Neb. 313, 114 N.W. 271 (1907).
"Mrs. Fred Steinberg" and "Mrs. Fred Steenburg" are idem sonans; endorsement was sufficient. Carrall v. State, 53 Neb. 431, 73 N.W. 939 (1898).
Endorsement of surname of witness, with initials of Christian name, was sufficient compliance. Basye v. State, 45 Neb. 261, 63 N.W. 811 (1895).
Witnesses for the state must be listed on the information. Ronzzo v. Sigler, 235 F.Supp. 839 (D. Neb. 1964).
3. Endorsement of witnesses during trial
Trial court's endorsement of additional witness on first day of trial was not an abuse of discretion, as defendant was unable to show how such action prejudiced his trial preparation. State v. Brandon, 240 Neb. 232, 481 N.W.2d 207 (1992).
A failure to endorse on the information the names of witnesses to be called by the State is not grounds for reversal of a conviction in the absence of a showing of prejudice. State v. Journey, 201 Neb. 607, 271 N.W.2d 320 (1978).
In the exercise of its discretion, trial court may permit endorsement of names of witnesses upon information. Svehla v. State, 168 Neb. 553, 96 N.W.2d 649 (1959).
Trial court may, in its discretion, permit names of additional witnesses to be endorsed upon information after trial has begun, and defendant cannot complain of error where no prejudice is shown and he did not ask for continuance. McCartney v. State, 129 Neb. 716, 262 N.W. 679 (1935).
It is within discretion of court to permit names of additional witnesses to be endorsed on information after trial has commenced. Barnts v. State, 116 Neb. 363, 217 N.W. 591 (1928); Hutter v. State, 105 Neb. 601, 181 N.W. 552 (1921); Samuels v. State, 101 Neb. 383, 163 N.W. 312 (1917).
District court may permit names of additional witnesses to be endorsed on information during progress of trial. Ridings v. State, 108 Neb. 804, 189 N.W. 372 (1922).
Endorsement of additional witnesses after trial has begun is not error unless prejudicial and continuance asked for. Brunke v. State, 105 Neb. 343, 180 N.W. 560 (1920); Sheppard v. State, 104 Neb. 709, 178 N.W. 616 (1920); Kemplin v. State, 90 Neb. 655, 134 N.W. 275 (1912).
Where rule of court required names to be endorsed within twenty-four hours after discovery, names endorsed later, with permission of court, was not error. Barney v. State, 49 Neb. 515, 68 N.W. 636 (1896).
29-1603.
Allegations; how made; joinder of offenses; rights of defendant.(1) All informations shall be in writing and signed by the county attorney, complainant, or some other person, and the offenses charged therein shall be stated with the same fullness and precision in matters of substance as is required in indictments in like cases.
(2)(a) Any information charging a violation of section 28-303 and in which the death penalty is sought shall contain a notice of aggravation which alleges one or more aggravating circumstances, as such aggravating circumstances are provided in section 29-2523. The notice of aggravation shall be filed as provided in section 29-1602. It shall constitute sufficient notice to describe the alleged aggravating circumstances in the language provided in section 29-2523.
(b) The state shall be permitted to add to or amend a notice of aggravation at any time up to and including the thirtieth day prior to the trial of guilt.
(c) The existence or contents of a notice of aggravation shall not be disclosed to the jury until after the verdict is rendered in the trial of guilt.
(3) Different offenses and different degrees of the same offense may be joined in one information, in all cases in which the same might by different counts be joined in one indictment; and in all cases a defendant or defendants shall have the same right, as to proceedings therein, as the defendant or defendants would have if prosecuted for the same offense upon indictment.
Source:Laws 1885, c. 108, § 3, p. 397; R.S.1913, § 9064; C.S.1922, § 10088; C.S.1929, § 29-1603; R.S.1943, § 29-1603;
Laws 2002, Third Spec. Sess., LB 1, § 5; Laws 2011, LB669, § 22; Laws 2015, LB268, § 12; Referendum 2016, No. 426.
Note: The changes made to section 29-1603 by Laws 2015, LB 268, section 12, have been omitted because of the vote on the referendum at the November 2016 general election.
Annotations
1. Allegations, generally
2. Allegations, specific offenses
3. Verification
1. Allegations, generally
The requirement that a notice of aggravators be filed prior to trial is not applicable to cases in which the pretrial and trial litigation steps have already been completed. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
Separate offenses must be set out in separate counts in an information, but failure is cured by verdict when no objection was made. State v. French, 195 Neb. 88, 236 N.W.2d 832 (1975).
Defense of statute of limitations is equally applicable to prosecution upon information as by indictment. Jacox v. State, 154 Neb. 416, 48 N.W.2d 390 (1951).
Information is defective if it charges commission of offense as subsequent to filing. McKay v. State, 91 Neb. 281, 135 N.W. 1024 (1912).
Averment of matters which are immaterial and unnecessary ingredients of offense is surplusage. Nelson v. State, 86 Neb. 856, 126 N.W. 518 (1910).
Where statute contains an exception, information should negative same, unless affirmative part clearly negatives exception. Holmes v. State, 82 Neb. 406, 118 N.W. 99 (1908).
Race or color of defendant should not be designated unless required by statute. Harris v. State, 80 Neb. 195, 114 N.W. 168 (1907).
Information must charge every essential element of the offense. Herbes v. State, 79 Neb. 832, 113 N.W. 530 (1907); Moline v. State, 67 Neb. 164, 93 N.W. 228 (1903); O'Connor v. State, 46 Neb. 157, 64 N.W. 719 (1895).
Information must be positive and not on belief. Steinkuhler v. State, 77 Neb. 331, 109 N.W. 395 (1906).
Precise words of statute are not necessary in charging offense; words identical in meaning are sufficient. Higbee v. State, 74 Neb. 331, 104 N.W. 748 (1905); Smith v. State, 72 Neb. 345, 100 N.W. 806 (1904).
Word "feloniously" is not necessary in information charging all essential elements of felony. Reno v. State, 69 Neb. 391, 95 N.W. 1042 (1903).
Information is vulnerable on demurrer if offense is not charged in positive terms. Sothman v. State, 66 Neb. 302, 92 N.W. 303 (1902).
Information need not negative exceptions of statute which are not descriptive of offense. Sofield v. State, 61 Neb. 600, 85 N.W. 840 (1901).
When there is identity of names in two counts, presumption is that both refer to same person. Dunn v. State, 58 Neb. 807, 79 N.W. 719 (1899).
Information will sustain conviction of lower offense involved in that charged. Mulloy v. State, 58 Neb. 204, 78 N.W. 525 (1899).
Information must charge same offense as complaint or substantially the same. Mills v. State, 53 Neb. 263, 73 N.W. 761 (1898).
It is not necessary to conclude, "against the peace and dignity of the state." Bolln v. State, 51 Neb. 581, 71 N.W. 444 (1897).
Charging offense with unnecessary particularity is not fatally defective. State v. Kendall, 38 Neb. 817, 57 N.W. 525 (1894).
Negative averment of the matter of a proviso is not required unless it enters into and becomes a part of the description of the offense. Gee Wo v. State, 36 Neb. 241, 54 N.W. 513 (1893).
An unnecessary amendment is not prejudicial to defendant. Braithwaite v. State, 28 Neb. 832, 45 N.W. 247 (1890).
Information must allege crime was committed within jurisdiction of court. McCoy v. State, 22 Neb. 418, 35 N.W. 202 (1887).
2. Allegations, specific offenses
An information charging an attempt to commit "robbery" is sufficient though it omits "with intent to steal", and allowing amendment to add those words during trial is not prejudicial error. State v. Last, 212 Neb. 596, 324 N.W.2d 402 (1982).
Failure to allege the result of the acts complained of in prosecution for picketing renders the information not precise or complete enough to comply with this section. Dutiel v. State, 135 Neb. 811, 284 N.W. 321 (1939).
Charge in language of statute is sufficient. Goff v. State, 89 Neb. 287, 131 N.W. 213 (1911).
Omission of word "maliciously" from information for burglary was immaterial error. Johns v. State, 88 Neb. 145, 129 N.W. 247 (1910).
It is sufficient, as to ownership, to allege that money or property embezzled belonged to an estate. Hendee v. State, 80 Neb. 80, 113 N.W. 1050 (1907).
Information charging embezzlement from a city was sufficient. Bode v. State, 80 Neb. 74, 113 N.W. 996 (1907).
In prosecution for illegal fencing of highway, information failing to charge road was in common use will not support a conviction. Gilbert v. State, 78 Neb. 636, 111 N.W. 377 (1907).
In prosecution for attempt to corrupt witness, necessary allegations of information stated. Gandy v. State, 77 Neb. 782, 110 N.W. 862 (1906).
Requirements of information charging rape stated. Hubert v. State, 74 Neb. 220, 104 N.W. 276 (1905), motion for rehearing denied 74 Neb. 226, 106 N.W. 774 (1906).
Information for murder in first degree is set out and held sufficient to sustain conviction. Barker v. State, 73 Neb. 469, 103 N.W. 71 (1905).
Information charging obtaining property by false pretenses was sufficient. West v. State, 63 Neb. 257, 88 N.W. 503 (1901).
In information for burglary, it is proper to allege ownership in person having visible occupancy and control of premises. Hahn v. State, 60 Neb. 487, 83 N.W. 674 (1900).
Charging carrying on of a lottery on divers days is bad for duplicity, offense not being a continuing one. State v. Dennison, 60 Neb. 192, 82 N.W. 628 (1900).
In information charging rape, all unlawful acts within period of limitation may be charged. Bailey v. State, 57 Neb. 706, 78 N.W. 284 (1899).
Information for assault with intent to kill was good. McVey v. State, 57 Neb. 471, 77 N.W. 1111 (1899).
Information for larceny is not fatally defective for failure to state exact time, when time is not essence of offense. Rema v. State, 52 Neb. 375, 72 N.W. 474 (1897).
Charge of malpractice and contempt may be joined if both involve same transaction. Blodgett v. State, 50 Neb. 121, 69 N.W. 751 (1897).
Information charging practice of medicine and surgery without certificate was sufficient. Jones v. State, 49 Neb. 609, 68 N.W. 1034 (1896).
Where information charges assault with intent to commit rape by force, it is not necessary to allege age of person upon whom assault was committed or age of defendant. Hall v. State, 40 Neb. 320, 58 N.W. 929 (1894).
3. Verification
To meet the requirement that an information shall be verified by the oath of the county attorney, it is sufficient if it appears, no matter in what form, that the truth of the charge or charges contained in the information are confirmed and substantiated by the oath of the county attorney. State v. Jones, 254 Neb. 212, 575 N.W.2d 156 (1998).
Information verified by some person other than county attorney is sufficient and renders additional verification by prosecuting official unnecessary. State ex rel. Gossett v. O'Grady, 137 Neb. 824, 291 N.W. 497 (1940).
Verification to information is sufficient if it appears, no matter in what form, that truth of charges contained therein is confirmed and substantiated by oath of county attorney. Marshall v. State, 116 Neb. 45, 215 N.W. 564 (1927).
It is sufficient if information is verified by county attorney on information and belief. Watson v. State, 109 Neb. 43, 189 N.W. 620 (1922).
Objection to verification is waived if not made before arraignment and plea. Emery v. State, 78 Neb. 547, 111 N.W. 374 (1907).
Verification must be before magistrate authorized to administer oaths, clerk of court or deputy. Nightingale v. State, 62 Neb. 371, 87 N.W. 158 (1901); Davis v. State, 31 Neb. 247, 47 N.W. 854 (1891).
Terms "prosecuting attorney" and "county attorney" are synonymous. Bush v. State, 62 Neb. 128, 86 N.W. 1062 (1901).
Information may be verified by county attorney. Trimble v. State, 61 Neb. 604, 85 N.W. 844 (1901).
29-1604.
Information; procedure; law applicable.The provisions of the criminal code in relation to indictments, and all other provisions of law, applying to prosecutions upon indictments to writs and process therein, and the issuing and service thereof, to motions, pleadings, trials and punishments or the execution of any sentence, and to all other proceedings in cases of indictments, whether in the court of original or appellate jurisdiction, shall in the same manner and to the same extent, as nearly as may be, apply to informations, and all prosecutions and proceedings thereon.
Source:Laws 1885, c. 108, § 4, p. 398; R.S.1913, § 9065; C.S.1922, § 10089; C.S.1929, § 29-1604; R.S.1943, § 29-1604.
Annotations
1. Information
2. Miscellaneous
1. Information
Filing and service of amended information rendered nonprejudicial defects in service of original information. Svehla v. State, 168 Neb. 553, 96 N.W.2d 649 (1959).
Provision of criminal code with respect to indictments applies to informations. Shepperd v. State, 168 Neb. 464, 96 N.W.2d 261 (1959).
Information was sufficient to charge offense of uttering forged check. Benedict v. State, 166 Neb. 295, 89 N.W.2d 82 (1958).
Statutory provisions relating to indictments applies to informations. Jurgenson v. State, 166 Neb. 111, 88 N.W.2d 129 (1958).
This section makes the statutory provision for service of an indictment applicable to an information. Hawk v. State, 151 Neb. 717, 39 N.W.2d 561 (1949).
Information charging assault with intent to commit rape by force was not defective because of allegation of age of complaining witness. Frank v. State, 150 Neb. 745, 35 N.W.2d 816 (1949).
The provisions of the criminal code in relation to indictments apply to prosecution on information for picketing. Dutiel v. State, 135 Neb. 811, 284 N.W. 321 (1939).
2. Miscellaneous
Exact time of commission of alleged prior felony is not essential in charge under Habitual Criminal Act. State v. Harig, 192 Neb. 49, 218 N.W.2d 884 (1974).
There is no specified length of time that must elapse between filing of information and commencement of trial except requirement of one day must elapse after information has been served before arraignment. Darlington v. State, 153 Neb. 274, 44 N.W.2d 468 (1950).
This section makes applicable to prosecutions upon information preliminary pleadings provided for attacking indictments, and same waiver of defects for failure to make attack by motion to quash, plea in abatement or demurrer. State ex rel. Gossett v. O'Grady, 137 Neb. 824, 291 N.W. 497 (1940).
Election is not required between counts charging same offense. Stevens v. State, 84 Neb. 759, 122 N.W. 58 (1909).
Where offenses are distinct and separate, court should require prosecutor to elect. Miller v. State, 78 Neb. 645, 111 N.W. 637 (1907).
Several misdemeanors of same kind may be set forth in separate counts; prosecutor is not required to elect. Little v. State, 60 Neb. 749, 84 N.W. 248 (1900).
The requirement of service of copy of indictment within twenty-four hours after filing applies to information. Hawk v. Olson, 326 U.S. 271 (1945), reversing Hawk v. Olson, 145 Neb. 306, 16 N.W.2d 181 (1944).
29-1605.
Commitment and bail; law applicable.Any person who may, according to law, be committed to jail or become recognized or held to bail with sureties for his appearance in court to answer to any indictment, may in like manner be committed to jail or become recognized and held to bail for his appearance, to answer to any information or indictment, as the case may be.
Source:Laws 1885, c. 108, § 5, p. 398; R.S.1913, § 9066; C.S.1922, § 10090; C.S.1929, § 29-1605; R.S.1943, § 29-1605.
29-1606.
Persons committed or held to bail; preliminary hearing; failure of county attorney to file information; written statement required; power of court.It shall be the duty of the county attorney of the proper county to inquire into and make full examination of all the facts and circumstances connected with any case on preliminary examination, as provided by law, touching the commission of any offense wherein the offender shall be committed to jail, or become recognized or held to bail. If the prosecuting attorney shall determine in any such case that an information ought not to be filed, he shall make, subscribe, and file with the clerk of the court a statement in writing, containing his reasons, in fact and in law, for not filing an information in such case; and such statement shall be filed at and during the term of court at which the offender shall be held for his appearance; Provided, in such case such court may examine the statement, together with the evidence filed in the case, and if, upon such examination, the court shall not be satisfied with the statement, the county attorney shall be directed by the court to file the proper information and bring the case to trial.
Source:Laws 1885, c. 108, § 6, p. 398; R.S.1913, § 9067; C.S.1922, § 10091; C.S.1929, § 29-1606; R.S.1943, § 29-1606.
Annotations
After a court approves the dismissal without prejudice of information under this section, the State is free to file new information that includes additional charges. State v. Al-Sayagh, 268 Neb. 913, 689 N.W.2d 587 (2004).
The provisions of this section include the requirement of approval by the trial court before an information may be dismissed. State v. Sanchell, 191 Neb. 505, 216 N.W.2d 504 (1974).
Obiter dictum in In re Interest of Moore, 186 Neb. 67, 180 N.W.2d 917, deleted to avoid possible misconstruction in conflict with this section. In re Interest of Moore, 186 Neb. 158, 180 N.W.2d 919 (1970).
Given gravity of original offense, state judge did not abuse his discretion in requiring that a proper probation revocation information be substituted for information which prosecution sought to dismiss. Kartman v. Parratt, 535 F.2d 450 (8th Cir. 1976).
Habitual criminal statute is not unconstitutional on grounds it gives county attorney selectivity in applying it, nor because it punishes a status rather than an act. Martin v. Parratt, 412 F.Supp. 544 (D. Neb. 1976).
State judge's refusal to dismiss probation violation charge except on condition county attorney file new charges did not deny probationer due process on ground that such judge, at final revocation hearing, was not a neutral and detached decision maker. Kartman v. Parratt, 397 F.Supp. 531 (D. Neb. 1975).
29-1607.
Information; preliminary examination; required; when.No information shall be filed against any person for any offense until such person shall have had a preliminary examination therefor, as provided by law, unless such person shall waive his or her right to such examination, except as otherwise provided in the Uniform Criminal Extradition Act. The preliminary examination shall be conducted as soon as the nature and the circumstances of the case will permit.
Source:Laws 1885, c. 108, § 8, p. 399; R.S.1913, § 9068; C.S.1922, § 10092; C.S.1929, § 29-1607; Laws 1935, c. 66, § 27, p. 231; C.S.Supp.,1941, § 29-1607; R.S.1943, § 29-1607;
Laws 1972, LB 1032, § 175; Laws 1980, LB 600, § 1.
Cross References
Uniform Criminal Extradition Act, see section 29-758.
Annotations
1. Nature and requisites
2. Waiver
3. Miscellaneous
1. Nature and requisites
If an information is filed initially in district court, referred to as a "direct information", such filing is treated in the nature of a complaint until a preliminary hearing is held and, in conformity with this section, after the preliminary hearing is concluded, the filing will then be treated as an information for speedy trial act purposes. State v. Boslau, 258 Neb. 39, 601 N.W.2d 769 (1999).
In a prosecution by information, the complaint and information must charge the same offense, but it is sufficient if the charge in the information is substantially the same as that alleged in the complaint. State v. Kelley, 211 Neb. 770, 320 N.W.2d 455 (1982).
Preliminary hearing before a county judge not an attorney not violative of this section. State v. Howard, 184 Neb. 274, 167 N.W.2d 80 (1969).
Preliminary hearing is not required on complaint charging a misdemeanor. Otte v. State, 172 Neb. 110, 108 N.W.2d 737 (1961).
Preliminary hearing is not a criminal trial of person accused. Lingo v. Hann, 161 Neb. 67, 71 N.W.2d 716 (1955).
Omission to hold preliminary hearing of a person charged with crime is not jurisdictional. Swanson v. Jones, 151 Neb. 767, 39 N.W.2d 557 (1949).
Where it appears that charge in complaint is substantially the same as set forth in information, plea of want of preliminary examination because of variance is unavailing. Van Syoc v. State, 69 Neb. 520, 96 N.W. 266 (1903).
Examination made when magistrate is without jurisdiction is not a preliminary examination. White v. State, 28 Neb. 341, 44 N.W. 443 (1889).
A preliminary hearing, unless waived, is a prerequisite to a prosecution by information. Bird v. Sigler, 241 F.Supp. 1007 (D. Neb. 1964).
A defendant cannot be prosecuted by information until a preliminary hearing is held. Ronzzo v. Sigler, 235 F.Supp. 839 (D. Neb. 1964).
2. Waiver
The right to a preliminary hearing is waived by entering a plea of not guilty in the district court. State v. DeJesus, 216 Neb. 907, 347 N.W.2d 111 (1984).
Failure to give preliminary hearing is not a jurisdictional defect and may be waived. Drewes v. State, 156 Neb. 319, 56 N.W.2d 113 (1952).
Preliminary hearing in a criminal case is waived unless defendant raises that question before he enters a plea of not guilty in the district court. Roberts v. State, 145 Neb. 658, 17 N.W.2d 666 (1945).
Right of preliminary hearing may be waived. Meyers v. State, 104 Neb. 356, 177 N.W. 177 (1920).
District court has jurisdiction when transcript shows filing of complaint, arraignment and waiver of preliminary hearing before magistrate. Clawson v. State, 96 Neb. 499, 148 N.W. 524 (1914).
Plea of not guilty waives objection that preliminary examination was not had. Dinsmore v. State, 61 Neb. 418, 85 N.W. 445 (1901).
Transcript showing arraignment of accused and waiver of preliminary examination fulfilled requirements of this section. Korth v. State, 46 Neb. 631, 65 N.W. 792 (1896).
Failure to give prisoner preliminary examination is a mere defect, and is waived if not objected to before going to trial. Coffield v. State, 44 Neb. 417, 62 N.W. 875 (1895).
3. Miscellaneous
In an informal preliminary hearing, it does not violate the Confrontation Clause to rely on out-of-court statements to determine probable cause for purposes of continuing a defendant's pretrial detention. State v. Anderson, 305 Neb. 978, 943 N.W.2d 690 (2020).
A claim that a defendant was not accorded a preliminary hearing and did not waive it, is determinable by a plea in abatement. State v. Forbes, 203 Neb. 349, 278 N.W.2d 615 (1979).
The district court is without jurisdiction to try on information one accused of committing a felony within the state unless the defendant is first accorded the privilege of a preliminary examination or waives the same. State v. Forbes, 203 Neb. 349, 278 N.W.2d 615 (1979).
Effect of dissemination of hearsay and purported statements of counsel considered in review of order restricting pretrial publicity. State v. Simants, 194 Neb. 783, 236 N.W.2d 794 (1975).
Prosecuting attorney cannot delegate authority to file information. Richards v. State, 22 Neb. 145, 34 N.W. 346 (1887).
29-1608.
Indictment, complaint, or information against corporation; summons; service; return day; procedure.Whenever an indictment is presented, or complaint or information filed against a corporation, a summons commanding the sheriff to notify the accused thereof, and returnable on the third day after its date, shall issue on the praecipe of the prosecuting attorney. Such summons, together with a copy of the indictment, information, or complaint, shall be served and returned in the manner provided for service of summons upon such corporation in a civil action. The corporation on or before the return day of a summons duly served may appear by one of its officers, or by counsel, and answer to the indictment, information, or complaint by motion, demurrer, or plea. Upon its failure to make such appearance and answer, the court clerk shall enter a plea of not guilty; and upon such appearance being made, or plea entered, the corporation shall be deemed thenceforth continuously present in the court until the case is finally disposed of.
Source:Laws 1903, c. 140, § 1, p. 646; R.S.1913, § 9069; C.S.1922, § 10093; C.S.1929, § 29-1608; R.S.1943, § 29-1608;
Laws 1983, LB 447, § 44.
29-1701.
Warrant and arrest on indictment or presentment.A warrant may be issued in term time or in vacation of the court, on an indictment found or presentment made in any county, and when directed to the sheriff of the county where such indictment was found, or presentment made, it shall be lawful for such officer to pursue and arrest the accused named in such warrant, in any county of this state where he may be found, and commit him to jail, or hold him to bail, as provided in this code.
Source:G.S.1873, c. 58, § 426, p. 819; R.S.1913, § 9070; C.S.1922, § 10094; C.S.1929, § 29-1701; R.S.1943, § 29-1701.
29-1702.
Accused a nonresident of the county; how arrested.When the party accused shall reside out of the county in which such indictment was found, it shall be lawful to issue a warrant thereon, directed to the sheriff of the county where the accused shall reside or may be found. It shall be the duty of such officer to arrest the accused and convey him to the county from which such writ was issued, and there commit him to the jail of such county, or hold him to bail, as provided in section 29-1701.
Source:G.S.1873, c. 58, § 427, p. 819; R.S.1913, § 9071; C.S.1922, § 10095; C.S.1929, § 29-1702; R.S.1943, § 29-1702.
Annotations
Fact that accused is out on bail pending trial for felony in one county does not render him immune from arrest on charge of separate felony in another county. State ex rel. Johnson v. Goble, 136 Neb. 242, 285 N.W. 569 (1939).
29-1703.
Misdemeanors; recognizance for appearance; authority of sheriff to take.When any sheriff or other officer shall be charged with the execution of a warrant issued on any indictment for a misdemeanor, he shall, during the vacation of the court from which the writ issued, have authority to take the recognizance of the person so indicted, together with sufficient sureties, resident and freeholders in the county from which such writ issued, in a sum of not less than fifty dollars nor more than five hundred dollars, conditioned for the appearance of such person on the first day of the next term of such court.
Source:G.S.1873, c. 58, § 428, p. 820; R.S.1913, § 9072; C.S.1922, § 10096; C.S.1929, § 29-1703; R.S.1943, § 29-1703.
Annotations
This section governs duties of sheriff in case of taking bond. Berrer v. Moorhead, 22 Neb. 687, 36 N.W. 118 (1888).
29-1704.
Misdemeanors; recognizance; return.The sheriff or other officer shall return such writ according to the command thereof, with the name of the surety or sureties, together with the recognizance taken as aforesaid; and the recognizance so taken and returned shall be filed and recorded by the clerk of the court to which the same was returned, and may be proceeded on in the same way as if such recognizance had been taken in the court during term time.
Source:G.S.1873, c. 58, § 429, p. 820; R.S.1913, § 9073; C.S.1922, § 10097; C.S.1929, § 29-1704; R.S.1943, § 29-1704.
29-1705.
Felonies; recognizance ordered by court; authority.When any person has been indicted for a felony and the person so indicted has not been arrested or recognized to appear before the court, the court may make an entry of the cause upon the record and may order the amount in which the party indicted may be recognized for his or her appearance by any officer charged with the duty of arresting him or her.
Source:G.S.1873, c. 58, § 430, p. 820; R.S.1913, § 9074; C.S.1922, § 10098; C.S.1929, § 29-1705; R.S.1943, § 29-1705;
Laws 2018, LB193, § 54.
Annotations
Recognizance, taken before unauthorized person, or when taking thereof is unauthorized, is void. Dickenson v. State, 20 Neb. 72, 29 N.W. 184 (1886).
29-1706.
Felonies; recognizance; amount; endorsement on warrant.The clerk issuing a warrant on such an indictment shall endorse thereon the sum in which the recognizance of the accused was ordered as aforesaid to be taken.
Source:G.S.1873, c. 58, § 431, p. 820; R.S.1913, § 9075; C.S.1922, § 10099; C.S.1929, § 29-1706; R.S.1943, § 29-1706.
29-1707.
Felonies; recognizance; conditions; return.The officer charged with the execution of the warrant aforesaid shall take the recognizance of the party accused in the sum ordered as aforesaid, together with good and sufficient sureties, conditioned for the appearance of the accused at the return of the writ before the court out of which the same issued.
Such officer shall return such recognizance to the court to be recorded and proceeded on as provided in this code.
Source:G.S.1873, c. 58, § 432, p. 820; R.S.1913, § 9076; C.S.1922, § 10100; C.S.1929, § 29-1707; R.S.1943, § 29-1707.
29-1708.
Recognizance; signature; certificate.All recognizances taken during vacation of any court, by any judge or other officer thereof authorized to take them, shall be signed by the parties and certified to by the officer taking the same.
Source:G.S.1873, c. 58, § 433, p. 820; R.S.1913, § 9077; C.S.1922, § 10101; C.S.1929, § 29-1708; R.S.1943, § 29-1708.
29-1709.
Indicted convicts; custody.Whenever any convict in a Department of Correctional Services adult correctional facility is indicted for any offense committed while confined therein, such convict shall remain in the custody of the warden of the facility subject to the order of the district court of the county where the facility in which such convict is confined is situated.
Source:G.S.1873, c. 58, § 434, p. 820; R.S.1913, § 9078; C.S.1922, § 10102; C.S.1929, § 29-1709; R.S.1943, § 29-1709;
Laws 1993, LB 31, § 8.
29-1801.
Repealed. Laws 1959, c. 119, § 1.
29-1802.
Indictment; record; service of copy on defendant; arraignment, when had.The clerk of the district court shall, upon the filing of any indictment with him or her and after the person indicted is in custody or let to bail, cause the same to be entered on the record of the court, and in case of the loss of the original, such record or a certified copy thereof shall be used in place thereof upon the trial of the cause. Within twenty-four hours after the filing of an indictment for felony, and in every other case on request, the clerk shall make and deliver to the sheriff and the defendant or his or her counsel a copy of the indictment, and the sheriff on receiving such copy shall serve the same upon the defendant. No one shall be, without his or her assent, arraigned or called on to answer to any indictment until one day has elapsed after receiving in person or by counsel or having an opportunity to receive a copy of such indictment.
Source:G.S.1873, c. 58, § 436, p. 821; Laws 1877, § 1, p. 4; R.S.1913, § 9080; C.S.1922, § 10104; C.S.1929, § 29-1802; R.S.1943, § 29-1802;
Laws 2018, LB193, § 55.
Annotations
1. Right to receive copy
2. Service of copy
3. Waiver
1. Right to receive copy
A plain reading of this section shows that it does not apply to complaints in county court. State v. Schanaman, 286 Neb. 125, 835 N.W.2d 66 (2013).
The defendant's right to a copy of information is not violated, where, although copy of amended information was not served on defendant, the case was tried on the original information as to which a copy was served. Hoctor v. State, 141 Neb. 329, 3 N.W.2d 558 (1942).
Accused is not entitled to additional copy merely because, with his knowledge, additional names are properly endorsed on information or because of amendment in immaterial respect. Eigbrett v. State, 111 Neb. 388, 196 N.W. 700 (1923).
Rule applies also to amended information. McKay v. State, 91 Neb. 281, 135 N.W. 1024 (1912).
State is required to furnish defendant with but one copy of information. Bush v. State, 62 Neb. 128, 86 N.W. 1062 (1901).
Right to copy and one day thereafter to prepare for trial is a substantial right; denial thereof is error, but right may be waived. Barker v. State, 54 Neb. 53, 74 N.W. 427 (1898).
This section applies to copy of information as well as indictment. Hawk v. Olson, 326 U.S. 271 (1945), reversing Hawk v. Olson, 145 Neb. 306, 16 N.W.2d 181 (1944).
2. Service of copy
This statute specifically allows counsel to be served. State v. Henn, 223 Neb. 280, 388 N.W.2d 846 (1986).
The requirement that one day shall elapse between service of an information and arraignment relates to the charge which is to be tried and not to a charge that defendant is an habitual criminal. State v. Cole, 192 Neb. 466, 222 N.W.2d 560 (1974).
Purpose of service of copy of information is to insure defendant a reasonable time in which to prepare his defense. Shepperd v. State, 168 Neb. 464, 96 N.W.2d 261 (1959).
Defendant cannot be put on trial until at least one day shall have elapsed after he has received copy of information. Darlington v. State, 153 Neb. 274, 44 N.W.2d 468 (1950).
This section provides for the service of indictment upon the accused. Hawk v. State, 151 Neb. 717, 39 N.W.2d 561 (1949).
3. Waiver
The failure of the record to show that the defendant made any objection to proceed with the trial on the charge raises the presumption that he or she waived the right under this section. State v. High, 225 Neb. 695, 407 N.W.2d 772 (1987).
Where amended information was properly filed and served, prior defects in original information and service thereof were not prejudicial. Svehla v. State, 168 Neb. 553, 96 N.W.2d 649 (1959).
Requirements of this section may be waived. Lingo v. Hann, 161 Neb. 67, 71 N.W.2d 716 (1955).
Right not to be required to plead to indictment or information, until one day shall have elapsed after receiving copy of same, may be waived. Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124 (1946).
Defendant's right hereunder may be waived; failure of record to show objection raises presumption of waiver. Kopp v. State, 124 Neb. 363, 246 N.W. 718 (1933).
Objection made after trial begins that copy of information had not been served is too late. Foster v. State, 83 Neb. 264, 119 N.W. 475 (1909).
29-1803.
Repealed. Laws 1965, c. 151, § 5.
29-1803.01.
Repealed. Laws 1972, LB 1463, § 13.
29-1803.02.
Repealed. Laws 1972, LB 1463, § 13.
29-1803.03.
Repealed. Laws 1972, LB 1463, § 13.
29-1804.
Transferred to section 23-3401.
29-1804.01.
Repealed. Laws 1972, LB 1463, § 13.
29-1804.02.
Repealed. Laws 1972, LB 1463, § 13.
29-1804.03.
Transferred to section 23-3402.
29-1804.04.
Transferred to section 29-3901.
29-1804.05.
Transferred to section 29-3902.
29-1804.06.
Repealed. Laws 1979, LB 241, § 7.
29-1804.07.
Transferred to section 29-3903.
29-1804.08.
Transferred to section 29-3904.
29-1804.09.
Transferred to section 29-3907.
29-1804.10.
Transferred to section 29-3908.
29-1804.11.
Transferred to section 23-3403.
29-1804.12.
Transferred to section 29-3905.
29-1804.13.
Transferred to section 29-3906.
29-1804.14.
Repealed. Laws 1990, LB 822, § 40.
29-1805.
Repealed. Laws 1972, LB 1463, § 13.
29-1805.01.
Transferred to section 29-3909.
29-1805.02.
Transferred to section 29-3910.
29-1805.03.
Transferred to section 29-3911.
29-1805.04.
Transferred to section 29-3912.
29-1805.05.
Transferred to section 29-3913.
29-1805.06.
Transferred to section 29-3914.
29-1805.07.
Transferred to section 29-3915.
29-1805.08.
Transferred to section 29-3916.
29-1805.09.
Transferred to section 29-3917.
29-1805.10.
Transferred to section 29-3918.
29-1805.11.
Repealed. Laws 1990, LB 822, § 40.
29-1806.
Exceptions to indictment; time allowed.The court shall allow the accused a reasonable time to examine the indictment and prepare exceptions thereto.
Source:G.S.1873, c. 58, § 438, p. 822; R.S.1913, § 9082; C.S.1922, § 10107; C.S.1929, § 29-1805; R.S.1943, § 29-1806.
29-1807.
Exceptions to indictment; how made.The accused may except to an indictment by (1) a motion to quash, (2) a plea in abatement, or (3) a demurrer.
Source:G.S.1873, c. 58, § 439, p. 822; R.S.1913, § 9083; C.S.1922, § 10108; C.S.1929, § 29-1806; R.S.1943, § 29-1807.
Annotations
The distinction between a motion to quash and a motion to suppress is not mere form over substance. The filing of a motion to quash clearly notifies the State that the defendant's challenge is to the propriety of the entire proceedings. In contrast to a motion to quash, a motion to suppress seeks to exclude certain evidence from being presented at trial. State v. Kanarick, 257 Neb. 358, 598 N.W.2d 430 (1999).
Failure to attack indictment or information prior to trial is a waiver of any defects therein which are not jurisdictional. State ex rel. Gossett v. O'Grady, 137 Neb. 824, 291 N.W. 497 (1940).
Where different counts in information are properly joined, and evidence is offered to sustain each, an election will not be required. Poston v. State, 83 Neb. 240, 119 N.W. 520 (1909).
A plea in abatement is a device whereby indictment or information can be attacked. Ronzzo v. Sigler, 235 F.Supp. 839 (D. Neb. 1964).
29-1808.
Motion to quash; when made.A motion to quash may be made in all cases when there is a defect apparent upon the face of the record, including defects in the form of the indictment or in the manner in which an offense is charged.
Source:G.S.1873, c. 58, § 440, p. 822; R.S.1913, § 9084; C.S.1922, § 10109; C.S.1929, § 29-1807; R.S.1943, § 29-1808.
Annotations
1. Defects
2. Waiver
3. Miscellaneous
1. Defects
Objections to an information or the content of an information should be raised by a motion to quash. State v. Smith, 294 Neb. 311, 883 N.W.2d 299 (2016).
The charging of alternative means of committing the same crime that are incongruous as a matter of law is a defect apparent on the face of the record. State v. McIntyre, 290 Neb. 1021, 863 N.W.2d 471 (2015).
Objections to the form or content of an information should be raised by a motion to quash. A defendant's failure to file a motion to quash the information waives objections to it, even when the objection is aimed at an amended information superseding the original information filed against the defendant. State v. Meers, 257 Neb. 398, 598 N.W.2d 435 (1999).
A motion to quash is the proper method to attack the requisite certainty and particularity of an information in a criminal case. State v. Bocian, 226 Neb. 613, 413 N.W.2d 893 (1987).
The defendant's motion to quash should have been sustained by the trial court because his testimony given under oath before a special legislative committee was not subject to prosecution as perjury under section 28-915. State v. Douglas, 222 Neb. 833, 388 N.W.2d 801 (1986).
Challenge to certainty and particularity of information which states an offense in the words of the statute may be made by a motion to quash, but not by a motion in arrest of judgment. State v. Abraham, 189 Neb. 728, 205 N.W.2d 342 (1973).
In a criminal prosecution for picketing, failure to allege the essential elements of the offense renders the information subject to a motion to quash. Dutiel v. State, 135 Neb. 811, 284 N.W. 321 (1939).
Defects in indictment which might have been attacked by motion to quash are waived by general demurrer. Buthman v. State, 131 Neb. 385, 268 N.W. 99 (1936).
Defects in verification should be raised by motion to quash before pleading to information. Davis v. State, 31 Neb. 247, 47 N.W. 854 (1891).
A motion to quash which raises the issue of the admissibility of a defendant's prior driving under the influence convictions, for enhancement purposes, should not be filed until after a determination of the defendant's guilt on the underlying offense. State v. Head, 14 Neb. App. 684, 712 N.W.2d 822 (2006).
2. Waiver
A defendant who pleads not guilty without having raised the question of the lack of or a defective verification waives the defect. State v. Gilman, 181 Neb. 390, 148 N.W.2d 847 (1967).
Failure to file motion to quash is not a waiver where information wholly fails to allege essential element of crime. Nelson v. State, 167 Neb. 575, 94 N.W.2d 1 (1959).
Failure to attack indictment or information prior to trial is a waiver of any defects therein which are not jurisdictional. State ex rel. Gossett v. O'Grady, 137 Neb. 824, 291 N.W. 497 (1940).
Defects in indictment which might have been attacked by motion to quash are waived by general demurrer. Buthman v. State, 131 Neb. 385, 268 N.W. 99 (1936).
Failure to make motion to quash is waiver of any defect on face of information. Matters v. State, 120 Neb. 404, 232 N.W. 781 (1930).
3. Miscellaneous
The distinction between a motion to quash and a motion to suppress is not mere form over substance. The filing of a motion to quash clearly notifies the State that the defendant's challenge is to the propriety of the entire proceedings. In contrast to a motion to quash, a motion to suppress seeks to exclude certain evidence from being presented at trial. State v. Kanarick, 257 Neb. 358, 598 N.W.2d 430 (1999).
Disqualification of members of jury panel to serve cannot be raised by motion to quash. State v. Eggers, 175 Neb. 79, 120 N.W.2d 541 (1963).
Motion to quash was properly overruled in case stated. Blair v. State, 72 Neb. 501, 101 N.W. 17 (1904).
The proper procedure for determining the admissibility of prior driving under the influence convictions as prior convictions for the purposes of enhancement is to file a motion to quash on the enhancement issues after a determination of guilt on the underlying offense. State v. Head, 14 Neb. App. 684, 712 N.W.2d 822 (2006).
29-1809.
Plea in abatement; when made.A plea in abatement may be made when there is a defect in the record which is shown by facts extrinsic thereto.
Source:G.S.1873, c. 58, § 441, p. 822; R.S.1913, § 9085; C.S.1922, § 10110; C.S.1929, § 29-1808; R.S.1943, § 29-1809.
Annotations
1. When made
2. Procedure
1. When made
Hereafter the sufficiency of the evidence at a preliminary hearing may be raised only by a plea in abatement filed in the criminal proceeding in the district court. Kruger v. Brainard, 183 Neb. 455, 161 N.W.2d 520 (1968).
A plea in abatement may be made when there is a defect in the record which is shown by facts extrinsic thereto. Svehla v. State, 168 Neb. 553, 96 N.W.2d 649 (1959).
Plea in abatement presenting questions of law only is properly determined by court. Hardin v. State, 92 Neb. 298, 138 N.W. 146 (1912).
Objections to empaneling of grand jury may be presented by plea in abatement. If plea is made, and no refusal to rule thereon by trial court is shown, objection is waived. Goldsberry v. State, 92 Neb. 211, 137 N.W. 1116 (1912).
Plea in abatement is proper where there is defect in record shown by extrinsic facts. In case stated, plea is not good. Steiner v. State, 78 Neb. 147, 110 N.W. 723 (1907).
Whether preliminary hearing has been had or waived may be determined by interposition of plea in abatement. Jahnke v. State, 68 Neb. 154, 94 N.W. 158 (1903), reversed on rehearing 68 Neb. 181, 104 N.W. 154 (1905).
A plea in abatement based upon the fact that defendant had two preliminary examinations, and that on the first he was held for a lower grade of offense than upon the one which is the basis of the information filed against him is demurrable. Thompson v. State, 61 Neb. 210, 85 N.W. 62 (1901).
Matters triable under plea of not guilty cannot be presented by plea in abatement. State v. Bailey, 57 Neb. 204, 77 N.W. 654 (1898).
Objections on grounds of variance of information from complaint should be made by plea in abatement. Whitner v. State, 46 Neb. 144, 64 N.W. 704 (1895).
2. Procedure
After trial and conviction in the district court, any error in the ruling of the district court on the plea in abatement is cured if the evidence at trial is sufficient to permit the jury to find guilt beyond a reasonable doubt. State v. Franklin, 194 Neb. 630, 234 N.W.2d 610 (1975).
Issue on plea in abatement was properly tried by the court without a jury. Bolln v. State, 51 Neb. 581, 71 N.W. 444 (1897).
Where plea in bar is good, issue raised by it and state's reply must be tried by jury. Arnold v. State, 38 Neb. 752, 57 N.W. 378 (1894).
Ruling on plea in abatement is not a final order. Gartner v. State, 36 Neb. 280, 54 N.W. 516 (1893).
Plea may be signed by prisoner's attorney; if verified by prisoner, it is sufficient. Bohanan v. State, 15 Neb. 209, 18 N.W. 129 (1884).
Plea must point out particular cause of illegality. Baldwin v. State, 12 Neb. 61, 10 N.W. 463 (1881).
Plea in abatement must state facts and not legal conclusions. Priest v. State, 10 Neb. 393, 6 N.W. 468 (1880).
Where allegations of plea in abatement are denied by state, burden of proof is on defendant. Everson v. State, 4 Neb. Unof. 109, 93 N.W. 394 (1903).
29-1810.
Demurrer to indictment; when made.The accused may demur when the facts stated in the indictment do not constitute an offense punishable by the laws of this state, or when the intent is not alleged, when proof of it is necessary to make out the offense charged.
Source:G.S.1873, c. 58, § 442, p. 822; R.S.1913, § 9086; C.S.1922, § 10111; C.S.1929, § 29-1809; R.S.1943, § 29-1810.
Annotations
Demurrer to information was not properly sustained as to one count of the information. State v. Buttner, 180 Neb. 529, 143 N.W.2d 907 (1966).
Failure to demur is not a waiver where information wholly fails to allege essential element of crime. Nelson v. State, 167 Neb. 575, 94 N.W.2d 1 (1959).
Demurrer would not lie to indictment because it alleged in detail facts leading up to commission of criminal act charged. Kirchman v. State, 122 Neb. 624, 241 N.W. 100 (1932).
29-1811.
Indictment defective; accused committed or held to bail.When a motion to quash, or a plea in abatement, has been adjudged in favor of the accused, he may be committed or held to bail in such sum as the court may require for his appearance at the first day of the next term of said court.
Source:G.S.1873, c. 58, § 443, p. 822; R.S.1913, § 9087; C.S.1922, § 10112; C.S.1929, § 29-1810; R.S.1943, § 29-1811.
Annotations
Order of district court sustaining motion to quash information does not operate to discharge the defendant. Dobrusky v. State, 140 Neb. 360, 299 N.W. 539 (1941).
29-1812.
Defects; when considered waived.The accused shall be taken to have waived all defects which may be excepted to by a motion to quash, or a plea in abatement, by demurring to an indictment or pleading in bar or the general issue.
Source:G.S.1873, c. 58, § 444, p. 822; R.S.1913, § 9088; C.S.1922, § 10113; C.S.1929, § 29-1811; R.S.1943, § 29-1812.
Annotations
1. Plea of not guilty
2. Demurrer
3. Miscellaneous
1. Plea of not guilty
Overruling motion to quash information made after defendant had pleaded not guilty was proper. State v. Fiegl, 184 Neb. 704, 171 N.W.2d 643 (1969).
A defendant who pleads not guilty without having raised the question of the lack of or a defective verification waives the defect. State v. Gilman, 181 Neb. 390, 148 N.W.2d 847 (1967).
Plea in abatement was properly overruled when filed after entry of plea of not guilty. Onstott v. State, 156 Neb. 55, 54 N.W.2d 380 (1952).
Objection that a preliminary hearing in a criminal case has not been had is waived by a plea of not guilty in the district court. Roberts v. State, 145 Neb. 658, 17 N.W.2d 666 (1945).
Where defendant enters plea of not guilty to amended information, he waives all defects which might have been excepted to by motion to quash or plea in abatement. Dobrusky v. State, 140 Neb. 360, 299 N.W. 539 (1941).
Plea of not guilty waives all defects which may be excepted to by plea in abatement. Uerling v. State, 125 Neb. 374, 250 N.W. 243 (1933).
Objection that accused has not had preliminary examination is waived unless made before plea of not guilty is entered. Dinsmore v. State, 61 Neb. 418, 85 N.W. 445 (1901).
2. Demurrer
A motion to quash filed simultaneously with a demurrer to the indictment is not barred by this section. State v. Valencia, 205 Neb. 719, 290 N.W.2d 181 (1980).
Where demurrer to information is first filed and overruled, defects which might have been raised by motion to quash are waived. Wiese v. State, 138 Neb. 685, 294 N.W. 482 (1940).
Defects in an information which might have been attacked by motion to quash are waived by general demurrer. Buthman v. State, 131 Neb. 385, 268 N.W. 99 (1936).
Demurrer to information or plea of not guilty waives all defects which may be excepted to by motion to quash or plea in abatement. Green v. State, 116 Neb. 635, 218 N.W. 432 (1928); Olsen v. State, 114 Neb. 112, 206 N.W. 1 (1925); Reinoehl v. State, 62 Neb. 619, 87 N.W. 355 (1901).
3. Miscellaneous
Under this section, once a defendant has entered a plea, or a plea is entered for the defendant by the court, the defendant waives all facial constitutional challenges to a statute unless that defendant asks leave of the court to withdraw the plea and thereafter files a motion to quash, even if the defendant entered his plea through a written arraignment under section 29-4206. State v. Liston, 271 Neb. 468, 712 N.W.2d 264 (2006).
This section applies where a plea is entered for a defendant by the court. State v. Severin, 250 Neb. 841, 553 N.W.2d 452 (1996).
All defects that may be excepted to by a motion to quash are taken as waived by a defendant pleading the general issue. State v. Bocian, 226 Neb. 613, 413 N.W.2d 893 (1987).
This section applies whether plea is by defendant in person or by the court for him if he stands mute. State v. Etchison, 190 Neb. 629, 211 N.W.2d 405 (1973).
Challenge to certainty and particularity of information which states an offense in the words of the statute is waived by pleading the general issue. State v. Abraham, 189 Neb. 728, 205 N.W.2d 342 (1973).
Defendant's assignment of error that court lacked jurisdiction because information failed to contain a distinct allegation of each element of crime waived by guilty plea. State v. Workman, 186 Neb. 467, 183 N.W.2d 911 (1971).
Defendant, by pleading guilty, waived objection that might have been raised by plea in abatement. State v. Ninneman, 179 Neb. 729, 140 N.W.2d 5 (1966).
Waiver applied only to those matters which may be raised by motion to quash. Nelson v. State, 167 Neb. 575, 94 N.W.2d 1 (1959).
Failure to attack indictment or information prior to trial is a waiver of any defects therein which are not jurisdictional. State ex rel. Gossett v. O'Grady, 137 Neb. 824, 291 N.W. 497 (1940).
Information was not subject to charge of duplicity, and defects therein were waived. Sudyka v. State, 123 Neb. 431, 243 N.W. 276 (1932).
Defects in information were waived. Matters v. State, 120 Neb. 404, 232 N.W. 781 (1930).
Filing plea in bar constitutes waiver of all matters necessary or proper to be raised by plea in abatement. Melcher v. State, 109 Neb. 865, 192 N.W. 502 (1923).
Objections to empaneling grand jury may be presented by plea in abatement; if there is no ruling or refusal to rule thereon, objection is waived; cannot be taken by motion in arrest of judgment. Goldsberry v. State, 92 Neb. 211, 137 N.W. 1116 (1912).
Defects which might have been attacked by motion to quash or plea in abatement are waived when defendant pleads to general issue or when plea is entered for him by court. Huette v. State, 87 Neb. 798, 128 N.W. 519 (1910); Ingraham v. State, 82 Neb. 553, 118 N.W. 320 (1908).
29-1813.
Plea in abatement; misnomer; procedure.If the accused shall plead in abatement that he is not indicted by his true name, he must plead what his true name is, which shall be entered on the minutes of the court, and after such entry the trial and all other proceedings on the indictment shall be had against him by that name, referring also to the name by which he is indicted, in the same manner in all respects as if he had been indicted by his true name.
Source:G.S.1873, c. 58, § 445, p. 822; R.S.1913, § 9089; C.S.1922, § 10114; C.S.1929, § 29-1812; R.S.1943, § 29-1813.
29-1814.
Demurrer or reply to plea in abatement; when made.To any plea in abatement the county attorney may demur if it is not sufficient in substance, or he may reply setting forth any facts which may show that there is no defect in the record as charged in the plea.
Source:G.S.1873, c. 58, § 446, p. 822; R.S.1913, § 9090; C.S.1922, § 10115; C.S.1929, § 29-1813; R.S.1943, § 29-1814.
Annotations
Joinder of issues on plea in abatement may be waived. Svehla v. State, 168 Neb. 553, 96 N.W.2d 649 (1959).
Demurrer to plea in bar admits all facts well pleaded therein. Smith v. State, 42 Neb. 356, 60 N.W. 585 (1894).
29-1815.
Plea after overruling of demurrer to indictment.After a demurrer to an indictment has been overruled, the accused may plead not guilty, or in bar.
Source:G.S.1873, c. 58, § 447, p. 822; R.S.1913, § 9091; C.S.1922, § 10116; C.S.1929, § 29-1814; R.S.1943, § 29-1815.
Cross References
Plea of nolo contendere, see section 29-1819 et seq.
Annotations
When accused appears and goes to trial, arraignment is waived. Maher v. State, 144 Neb. 463, 13 N.W.2d 641 (1944).
Demurrer or plea of guilty waives all defects which might be objected to only by motion to quash or plea in abatement. Goddard v. State, 73 Neb. 739, 103 N.W. 443 (1905).
Trial for misdemeanor, without plea of defendant, is not ground for reversal. Allyn v. State, 21 Neb. 593, 33 N.W. 212 (1887).
Plea of not guilty precludes raising question of former conviction. Marshall v. State, 6 Neb. 120 (1877).
Defendant should plead to charge before he is placed on trial. Burley v. State, 1 Neb. 385 (1871).
29-1816.
Arraignment of accused; when considered waived; accused younger than eighteen years of age; move court to waive jurisdiction to juvenile court; findings for decision; transfer to juvenile court; effect; appeal; admission, confession, or statement made by the accused; inadmissible; when.(1)(a) The accused may be arraigned in county court or district court:
(i) If the accused was eighteen years of age or older when the alleged offense was committed;
(ii) If the accused was younger than eighteen years of age and was fourteen years of age or older when an alleged offense punishable as a Class I, IA, IB, IC, ID, II, or IIA felony was committed; or
(iii) If the alleged offense is a traffic offense as defined in section 43-245.
(b) Arraignment in county court or district court shall be by reading to the accused the complaint or information, unless the reading is waived by the accused when the nature of the charge is made known to him or her. The accused shall then be asked whether he or she is guilty or not guilty of the offense charged. If the accused appears in person and by counsel and goes to trial before a jury regularly impaneled and sworn, he or she shall be deemed to have waived arraignment and a plea of not guilty shall be deemed to have been made.
(2) At the time of the arraignment, the county court or district court shall advise the accused, if the accused was younger than eighteen years of age at the time the alleged offense was committed, that the accused may move the county court or district court at any time not later than thirty days after arraignment, unless otherwise permitted by the court for good cause shown, to waive jurisdiction in such case to the juvenile court for further proceedings under the Nebraska Juvenile Code. This subsection does not apply if the case was transferred to county court or district court from juvenile court.
(3) For motions to transfer a case from the county court or district court to juvenile court:
(a) The county court or district court shall schedule a hearing on such motion within fifteen days. The customary rules of evidence shall not be followed at such hearing. The accused shall be represented by an attorney. The criteria set forth in section 43-276 shall be considered at such hearing. After considering all the evidence and reasons presented by both parties, the case shall be transferred to juvenile court unless a sound basis exists for retaining the case in county court or district court; and
(b) The county court or district court shall make a decision on such motion within thirty days after the hearing and shall set forth findings for the reason for its decision. If the county court or district court determines that the accused should be transferred to the juvenile court, the complete file in the county court or district court shall be transferred to the juvenile court and the complaint, indictment, or information may be used in place of a petition therein. The county court or district court making a transfer shall order the accused to be taken forthwith to the juvenile court and designate where the juvenile shall be kept pending determination by the juvenile court. The juvenile court shall then proceed as provided in the Nebraska Juvenile Code.
(4) An order granting or denying transfer of the case from county or district court to juvenile court shall be considered a final order for the purposes of appeal. Upon entry of an order, any party may appeal to the Court of Appeals within ten days. Such review shall be advanced on the court docket without an extension of time granted to any party except upon a showing of exceptional cause. Appeals shall be submitted, assigned, and scheduled for oral argument as soon as the appellee's brief is due to be filed. The Court of Appeals shall conduct its review in an expedited manner and shall render the judgment and opinion, if any, as speedily as possible. During the pendency of an appeal from an order transferring the case to juvenile court, the juvenile court may enter temporary orders in the best interests of the juvenile.
(5)(a) Except as provided in subdivision (5)(b) of this section, any admission, confession, or statement made by the accused to a psychiatrist, psychologist, therapist, or licensed mental health practitioner for purposes of a motion to transfer a case from county court or district court to juvenile court shall be inadmissible in any criminal or civil proceeding.
(b) Subdivision (5)(a) of this section does not prevent any such admission, confession, or statement from being:
(i) Admissible in proceedings relating to such motion to transfer;
(ii) Admissible in disposition proceedings of such accused under the Nebraska Juvenile Code if the case is transferred to juvenile court;
(iii) Included in any presentence investigation report for such accused if the case is not transferred to juvenile court; and
(iv) Admissible in such case to impeach such accused during cross-examination if the accused testifies at trial or during juvenile court proceedings and such testimony is materially inconsistent with a prior statement made by the accused to a psychiatrist, psychologist, therapist, or licensed mental health practitioner for purposes of the motion to transfer such case.
(6) When the accused was younger than eighteen years of age when an alleged offense was committed, the county attorney or city attorney shall proceed under section 43-274.
Source:G.S.1873, c. 58, § 448, p. 822; R.S.1913, § 9092; C.S.1922, § 10117; Laws 1925, c. 105, § 1, p. 294; C.S.1929, § 29-1815; R.S.1943, § 29-1816; Laws 1947, c. 103, § 1(1), p. 291;
Laws 1974, LB 620, § 6; Laws 1975, LB 288, § 2; Laws 1987, LB 34, § 1; Laws 2008, LB1014, § 16; Laws 2010, LB800, § 5; Laws 2014, LB464, § 4; Laws 2015, LB265, § 1; Laws 2015, LB605, § 59; Laws 2017, LB11, § 1; Laws 2021, LB307, § 1; Laws 2024, LB184, § 1; Laws 2024, LB1051, § 1. Effective Date: July 19, 2024Note: The Revisor of Statutes has pursuant to section 49-769 correlated LB184, section 1, with LB1051, section 1, to reflect all amendments.
Cross References
Nebraska Juvenile Code, see section 43-2,129.
Annotations
1. Arraignment
2. Jurisdiction to juvenile court
3. Miscellaneous
1. Arraignment
Arraignment complied with statute. Lingo v. Hann, 161 Neb. 67, 71 N.W.2d 716 (1955).
Where accused goes to trial without being arraigned and failed to demand formal arraignment, he waives his rights. Maher v. State, 144 Neb. 463, 13 N.W.2d 641 (1944); Hill v. State, 116 Neb. 73, 215 N.W. 789 (1927).
Issues are not joined until arraignment and plea to information; no jeopardy in absence of plea. Gragg v. State, 112 Neb. 732, 201 N.W. 338 (1924).
Under prior statute, reading of indictment could not be waived in felony case, and failure to arraign was reversible error. Popel v. State, 105 Neb. 348, 180 N.W. 570 (1920).
Formal arraignment is not necessary in misdemeanor. Kruger v. State, 1 Neb. 365 (1871).
2. Jurisdiction to juvenile court
Pursuant to subdivision (1)(a)(ii) of this section, whether a juvenile court has jurisdiction over a person is determined not by the person's age at the time of the offense, but, rather, by the person's age at the time he or she is charged for the offense. State v. Pauly, 311 Neb. 418, 972 N.W.2d 907 (2022).
County courts have not been given authority to decide motions to transfer to juvenile court in cases in which they lack jurisdiction to try the case. State v. A.D., 305 Neb. 154, 939 N.W.2d 484 (2020).
Pursuant to subsection (2) of this section, alleged juvenile offenders have the ability to move for a transfer of their case from a county or district court to a juvenile court and this motion must be made within 30 days after arraignment unless otherwise permitted by the court for good cause shown. State v. Uhing, 301 Neb. 768, 919 N.W.2d 909 (2018).
Subsection (2) and subdivision (3)(c) of this section provide that an alleged juvenile offender can move for transfer to a juvenile court within 30 days of the juvenile's arraignment and that either the juvenile or the State can appeal an order on the motion within 10 days of its entry. State v. Uhing, 301 Neb. 768, 919 N.W.2d 909 (2018).
Pursuant to subdivision (3)(a) of this section, after considering the evidence and the criteria set forth in section 43-276, the court shall transfer the case to juvenile court unless a sound basis exists for retaining the case in county court or district court. State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018).
Pursuant to subdivision (3)(b) of this section, the court is required to set forth findings for the reason for its decision. State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018).
The general rule is that on request by a juvenile, the district court must transfer a juvenile case involving a felony from district court to juvenile court, unless a sound basis for retaining jurisdiction exists. In deciding whether to grant a requested waiver of the district court's jurisdiction and to transfer the case to juvenile court, the district court having jurisdiction over a pending criminal prosecution is required to consider the juvenile's request in light of the criteria set forth in section 43-276. State v. Reynolds, 246 Neb. 802, 523 N.W.2d 377 (1994).
In deciding whether to grant a requested waiver of jurisdiction and transfer proceedings to juvenile court pursuant to this section, the court having jurisdiction over a pending criminal prosecution must carefully consider the juvenile's request in light of the criteria set forth in section 43-276. State v. Nevels, 235 Neb. 39, 453 N.W.2d 579 (1990).
This section and section 43-276 provide a balancing test in which public protection and security are weighed against practical, and not problematical, rehabilitation in determining whether there should be a waiver of jurisdiction over a criminal proceeding to the juvenile court. State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988).
This section and section 43-276 involve a balancing test, namely, public protection and societal security weighed against practical and not problematic rehabilitation, in determining whether there should be a waiver of jurisdiction in criminal proceedings with a transfer to the juvenile court. Where the record supported the trial court's findings that the crime was violent, that the defendant may require treatment beyond the age of majority, that defendant's rehabilitative needs were beyond the scope of the juvenile court, and that more protection of the public was required than would be available in juvenile court, the district court did not abuse its discretion in retaining jurisdiction. State v. Ryan, 226 Neb. 59, 409 N.W.2d 579 (1987).
District court properly refused transfer of minor to juvenile court after a hearing and issuing written findings enumerating the basis for denying transfer. State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977).
A judgment will not be reversed for failure of trial court to set forth findings for its reason to overrule a motion to transfer case to juvenile court where defendant failed to call trial court's attention to the requirement of the statute. State v. Highly, 195 Neb. 498, 238 N.W.2d 909 (1976).
The district court abused its discretion in granting the transfer of two criminal cases to the juvenile court because there was substantial evidence supporting the retention of the cases in the district court for the sake of public safety and societal security, and there was a lack of evidence demonstrating that any further rehabilitation through the juvenile system would be practical and nonproblematical in the limited time left under the juvenile court's jurisdiction. State v. Esai P., 28 Neb. App. 226, 942 N.W.2d 416 (2020).
For matters initiated in the county or district court, a party can move to transfer to the juvenile court pursuant to subsection (3) of this section. State v. Comer, 26 Neb. App. 270, 918 N.W.2d 13 (2018).
The second degree murder and use of a deadly weapon charges filed against a 15-year-old were retained in the district court; the trial court's denial of a motion to transfer to the juvenile court is reviewed for an abuse of discretion. State v. Leroux, 26 Neb. App. 76, 916 N.W.2d 903 (2018).
3. Miscellaneous
When a defendant appeared, was represented by counsel, and went to trial, the defendant waived any argument that rearraignment was necessary. State v. Hernandez, 268 Neb. 934, 689 N.W.2d 579 (2004).
In order to retain jurisdiction pursuant to this section, the district court does not need to resolve every factor in section 43-276 against the juvenile. This section represents the policy decision, made by the Legislature, that decisions made at transfer hearings are to be informed by all of the surrounding circumstances, which may or may not include evidence that is inadmissible at a subsequent criminal trial. State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000).
A request to a court to waive jurisdiction to the juvenile court raises a jurisdictional challenge, and a defendant may appeal an unfavorable ruling even after entering a plea of guilty or tendering a plea of no contest. State v. Phinney, 235 Neb. 486, 455 N.W.2d 795 (1990).
Section is not applicable to misdemeanors. Wozniak v. State, 103 Neb. 749, 174 N.W. 298 (1919); Burroughs v. State, 94 Neb. 519, 143 N.W. 450 (1913).
Right to have complaint read to him in filiation proceeding is waived by defendant by proceeding to trial. McNeal v. Hunter, 72 Neb. 579, 101 N.W. 236 (1904).
The statutory amendment providing for interlocutory appeals from an order granting or denying transfer of the case from county or district court to juvenile court became effective August 24, 2017. State v. Leroux, 26 Neb. App. 76, 916 N.W.2d 903 (2018).
29-1816.01.
Arraignment of accused; record of proceedings; filing; evidence.On the arraignment in the district court of any person accused of a felony, the court may require the official reporter of the court to make a record of the proceedings in such court incident to such arraignment and the disposition of the charge made against the accused including sentence in the event of conviction. The court may further require the court reporter to prepare a transcript of the report of such proceedings, authenticate the transcript with an appropriate certificate to be attached thereto, and cause the same to be filed in the office of the clerk of the court. Such transcript shall be kept in a special file and not removed from the office of the clerk of the district court, except on an order of a judge of the court expressly authorizing removal. In the event that the transcript is so made, authenticated and filed, it, or a duly certified copy thereof, shall become and be competent and lawful evidence and admissible as such in any of the courts of this state.
29-1817.
Plea in bar; allegations; reply to plea; how issues tried.The accused may then offer a plea in bar to the indictment that he has before had judgment of acquittal, or been convicted, or been pardoned for the same offense; and to this plea the county attorney may reply that there is no record of such acquittal or conviction, or that there has been no pardon. On the trial of such issue to the court or to a jury, if the court desires to submit such issue to a jury, the accused must produce the record of such conviction or acquittal, or the pardon, and prove that he is the same person charged in the record or mentioned in the pardon; and shall be permitted to adduce such other evidence as may be necessary to establish the identity of the offense.
Source:G.S.1873, c. 58, § 449, p. 822; R.S.1913, § 9093; C.S.1922, § 10118; Laws 1927, c. 61, § 1, p. 222; C.S.1929, § 29-1816; R.S.1943, § 29-1817.
Annotations
1. Scope
2. Procedure
1. Scope
A plea in bar may be used to raise a double jeopardy challenge to the State's right to retry a defendant following a mistrial. State v. Combs, 297 Neb. 422, 900 N.W.2d 473 (2017).
Invalidity of law under which defendant is prosecuted cannot be raised by plea in bar. Melcher v. State, 109 Neb. 865, 192 N.W. 502 (1923).
Where amendment of information is made after trial has begun, there being no change in offense charged, accused is not thereby placed in jeopardy second time. McKay v. State, 91 Neb. 281, 135 N.W. 1024 (1912).
Former complaint which failed to allege facts sufficient to constitute crime is not bar. Roberts v. State, 82 Neb. 651, 118 N.W. 574 (1908).
Judgment of court which had no jurisdiction of subject matter is no bar. Peterson v. State, 79 Neb. 132, 112 N.W. 306 (1907).
Prosecution for burglary resulting in mistrial is no bar. Sharp v. State, 61 Neb. 187, 85 N.W. 38 (1901).
Plea in bar is waiver of plea in abatement; truth of averments of plea is tried to jury. Bush v. State, 55 Neb. 195, 75 N.W. 542 (1898).
Discharge of jury without sufficient cause may amount to acquittal. Conklin v. State, 25 Neb. 784, 41 N.W. 788 (1889); State v. Shuchardt, 18 Neb. 454, 25 N.W. 722 (1885).
Conviction in another country is not necessarily a bar. Marshall v. State, 6 Neb. 120 (1877).
Driving while under the influence of alcohol and refusal to submit to a chemical test are not the same offense for double jeopardy purposes, and double jeopardy does not prohibit the State from prosecuting the two
offenses in a single prosecution. State v. Grizzle, 18 Neb. App. 48, 774
N.W.2d 634 (2009).
2. Procedure
A plea in bar pursuant to this section may be filed to assert any nonfrivolous double jeopardy claim arising from a prior prosecution, including a claim that jeopardy was terminated by entry of a mistrial without manifest necessity. State v. Williams, 278 Neb. 841, 774 N.W.2d 384 (2009).
A plea in bar is not a proper procedure after a defendant's conviction has been affirmed on appeal, and the cause is remanded only for resentencing. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
Plea in bar may be disregarded if presented while plea of not guilty remains on record; but if former is considered, latter is treated as withdrawn. George v. State, 59 Neb. 163, 80 N.W. 486 (1899).
Plea of "former jeopardy" should be set out in record; is invalid unless sworn to. Davis v. State, 51 Neb. 301, 70 N.W. 984 (1897).
Defense of statute of limitations is availed of under plea of "not guilty." Boughn v. State, 44 Neb. 889, 62 N.W. 1094 (1895).
Plea in bar may be demurred to; under former statute, issue should be joined and tried to jury; former jeopardy is ground for plea. Arnold v. State, 38 Neb. 752, 57 N.W. 378 (1894); Murphy v. State, 25 Neb. 807, 41 N.W. 792 (1889).
The defendant's claim that he was being subjected to multiple punishments for the same offense was unripe because he had pled guilty to one offense but had not been tried or convicted of the other offense. State v. Grizzle, 18 Neb. App. 48, 774 N.W.2d 634 (2009).
29-1818.
Plea in bar or abatement; verification by accused required.No plea in bar or abatement shall be received by the court unless it be in writing, signed by the accused, and sworn to before some competent officer.
Source:G.S.1873, c. 58, § 450, p. 823; R.S.1913, § 9094; C.S.1922, § 10119; C.S.1929, § 29-1817; R.S.1943, § 29-1818.
Annotations
Plea in bar must be sworn to by accused as prerequisite to validity. Schrum v. State, 108 Neb. 186, 187 N.W. 801 (1922).
29-1819.
Pleas of guilty, not guilty, or nolo contendere; when required; failure to plead; effect.If the issue on the plea in bar be found against the defendant, or if upon arraignment the accused offers no plea in bar, he shall plead guilty, not guilty, or nolo contendere; but if he pleads evasively or stands mute, he shall be taken to have pleaded not guilty.
Source:G.S.1873, c. 58, § 451, p. 823; R.S.1913, § 9095; C.S.1922, § 10120; C.S.1929, § 29-1818; R.S.1943, § 29-1819; Laws 1953, c. 92, § 1, p. 264.
Annotations
A plea of nolo contendere entered on advice of counsel when defendant failed to supply counsel with all information that might have been relevant to his defense may not be withdrawn when the record shows that it was entered knowingly, understandingly, and voluntarily. State v. Hurley, 207 Neb. 321, 299 N.W.2d 152 (1980).
The effect of a plea of nolo contendere is the same as a plea of guilty. State v. Neuman, 175 Neb. 832, 125 N.W.2d 5 (1963); State v. Hylton, 175 Neb. 828, 124 N.W.2d 230 (1963).
Judgment of conviction of a felony, rendered upon plea of nolo contendere, is conclusive in disbarment proceeding. State ex rel. Nebraska State Bar Assn. v. Stanosheck, 167 Neb. 192, 92 N.W.2d 194 (1958).
Plea entered by court may be withdrawn by defendant. Huette v. State, 87 Neb. 798, 128 N.W. 519 (1910).
Plea of "not guilty," entered by court under this section, binds defendant. Trimble v. State, 61 Neb. 604, 85 N.W. 844 (1901).
29-1819.01.
Plea of nolo contendere; acceptance by court; when.The accused may, at any time before conviction, enter a plea of nolo contendere with the consent of the court. The court may refuse to accept the plea, and shall not accept the plea without first determining that the plea is made voluntarily with an understanding of the nature of the charge.
Source:Laws 1953, c. 92, § 2, p. 264.
29-1819.02.
Plea of guilty or nolo contendere; advisement required; effect.(1) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant:
IF YOU ARE NOT A UNITED STATES CITIZEN, YOU ARE HEREBY ADVISED THAT CONVICTION OF THE OFFENSE FOR WHICH YOU HAVE BEEN CHARGED MAY HAVE THE CONSEQUENCES OF REMOVAL FROM THE UNITED STATES, OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES. |
(2) Upon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section. If, on or after July 20, 2002, the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which the defendant pleaded guilty or nolo contendere may have the consequences for the defendant of removal from the United States, or denial of naturalization pursuant to the laws of the United States, the court, on the defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere and enter a plea of not guilty. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.
(3) With respect to pleas accepted prior to July 20, 2002, it is not the intent of the Legislature that a court's failure to provide the advisement required by subsection (1) of this section should require the vacation of judgment and withdrawal of the plea or constitute grounds for finding a prior conviction invalid. Nothing in this section, however, shall be deemed to inhibit a court, in the sound exercise of its discretion, from vacating a judgment and permitting a defendant to withdraw a plea.
Annotations
1. Procedure
2. Miscellaneous
1. Procedure
As to pleas entered on or after July 20, 2002, this section gives a court jurisdiction to consider a motion to withdraw such plea or vacate the judgment regardless of whether a defendant has completed his or her sentence. State v. Rodriguez, 288 Neb. 714, 850 N.W.2d 788 (2014).
Subsection (3) of this section does not create a procedure for withdrawal of a plea accepted before July 20, 2002. State v. Rodriguez, 288 Neb. 714, 850 N.W.2d 788 (2014).
This section imposes no requirement that a motion to withdraw a plea must be filed before a defendant completes his or her sentence. State v. Rodriguez, 288 Neb. 714, 850 N.W.2d 788 (2014).
Subsection (2) of this section establishes a statutory procedure whereby a convicted person may file a motion to have the criminal judgment vacated and the plea withdrawn when the advisement required by subsection (1) was not given and the conviction may have the consequences for the defendant of removal from the United States, or denial of naturalization pursuant to the laws of the United States. State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009).
This section gives a court discretion to vacate a judgment or withdraw a plea where a court has failed to provide the advisement required for pleas made on or after July 20, 2002, but it does not confer the power to vacate a judgment after the defendant has already completed his or her sentence. State v. Rodriquez-Torres, 275 Neb. 363, 746 N.W.2d 686 (2008).
The word "prior" has been interpreted to require the immigration advisement to be given by the court immediately before the entry of a plea of guilty or nolo contendere to ensure the defendant is aware of the immigration consequences of the plea when the plea is made, and to ensure a defendant who is arraigned and subsequently pleads to a lesser charge is aware that the immigration advisement applies. State v. Llerenas-Alvarado, 20 Neb. App. 585, 827 N.W.2d 518 (2013).
In cases where this section does not apply, an order overruling a motion to withdraw a plea does not affect a substantial right in a special proceeding and therefore does not constitute a final, appealable order. State v. Cisneros, 14 Neb. App. 112, 704 N.W.2d 550 (2005).
2. Miscellaneous
Where the trial court provided the required advisement of possible immigration consequences, errors by the interpreter in communicating that advisement to the defendant do not create a statutory right to withdraw a plea of guilty or nolo contendere. State v. Garcia, 301 Neb. 912, 920 N.W.2d 708 (2018).
If a defendant otherwise meets the requirements of this section, he or she is entitled to move to withdraw a plea even if he or she was actually aware of the immigration consequences of the plea at the time it was entered. State v. Medina-Liborio, 285 Neb. 626, 829 N.W.2d 96 (2013).
Under this section, all a defendant must show before withdrawing a plea of guilty or nolo contendere is (1) that the trial court failed to warn the defendant of one of the listed consequences and (2) that the defendant is currently facing one of the omitted consequences. State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d 613 (2010).
The remedy created by subsection (2) of this section extends to those serving sentences at the time the motion to withdraw the plea is filed. State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009).
Even if a defendant was not sufficiently advised of his or her rights concerning immigration consequences to pleading guilty, failure to give the advisement is not alone sufficient to entitle a convicted defendant to have the conviction vacated and the plea withdrawn; a defendant must also allege and show that he or she actually faces an immigration consequence which was not included in the advisement given. State v. Llerenas-Alvarado, 20 Neb. App. 585, 827 N.W.2d 518 (2013).
The defendant was properly advised under this section where advisement was not given verbatim but only minor, inconsequential wording changes were used in giving advisement as to immigration consequences of the defendant's plea. State v. Molina-Navarrete, 15 Neb. App. 966, 739 N.W.2d 771 (2007).
29-1819.03.
Plea of guilty or nolo contendere; legislative findings and intent.The Legislature finds and declares that in many instances involving an individual who is not a citizen of the United States and who is charged with an offense punishable as a crime under state law, a plea of guilty or nolo contendere is entered without the defendant knowing that a conviction of such offense is grounds for removal from the United States, or denial of naturalization pursuant to the laws of the United States. Therefor, it is the intent of the Legislature in enacting this section and section 29-1819.02 to promote fairness to such accused individuals by requiring in such cases that acceptance of a guilty plea or plea of nolo contendere be preceded by an appropriate warning of the special consequences for such a defendant which may result from the plea. It is also the intent of the Legislature that the court in such cases shall grant the defendant a reasonable amount of time to negotiate with the prosecuting agency in the event the defendant or the defendant's counsel was unaware of the possibility of removal from the United States, or denial of naturalization as a result of conviction. It is further the intent of the Legislature that at the time of the plea no defendant shall be required to disclose his or her legal status to the court.
29-1820.
Plea of guilty; record; accused; custody.If the accused pleads guilty the plea shall be recorded on the indictment, and the accused may be placed in the custody of the sheriff until sentence.
Source:G.S.1873, c. 58, § 452, p. 823; R.S.1913, § 9096; C.S.1922, § 10121; C.S.1929, § 29-1819; R.S.1943, § 29-1820; Laws 1963, c. 162, § 1, p. 575.
Annotations
Requirement of entry of plea on back of indictment or information is directory and not mandatory. Jurgenson v. State, 166 Neb. 111, 88 N.W.2d 129 (1958).
Plea of guilty is equivalent to finding of guilty and will sustain such an order. Leiby v. State, 79 Neb. 485, 113 N.W. 125 (1907).
Plea of guilty, entered by defendant, is evidence against him in subsequent action to which he is party involving same subject matter. Wisnieski v. Vanek, 5 Neb. Unof. 512, 99 N.W. 258 (1904).
29-1821.
Plea of not guilty; record; day of trial; designation; continuance; when.If the accused pleads not guilty, the plea shall be entered on the indictment, and the prosecuting attorney shall, under the direction of the court, designate a day for trial, which shall be a day of the term at which the plea is made, unless the court, for good reasons, continues the case to a subsequent term.
Source:G.S.1873, c. 58, § 453, p. 823; R.S.1913, § 9097; C.S.1922, § 10122; C.S.1929, § 29-1820; R.S.1943, § 29-1821.
Annotations
Date for trial was properly designated. Kitts v. State, 153 Neb. 784, 46 N.W.2d 158 (1951).
Failure to endorse plea on indictment is not ground for reversal. Preuit v. People, 5 Neb. 377 (1877).
29-1822.
Mental incompetency of accused after crime commission; effect; death penalty; stay of execution.(1) A person who becomes mentally incompetent after the commission of an offense shall not be tried for the offense until such disability is removed as provided in section 29-1823.
(2) If, after a verdict of guilty, but before judgment is pronounced, a defendant becomes mentally incompetent, then no judgment shall be given until such disability is removed.
(3) If a defendant is sentenced to death and, after judgment, but before execution of the sentence, such person becomes mentally incompetent, execution of the sentence shall be stayed until such disability is removed.
Source:G.S.1873, c. 58, § 454, p. 823; R.S.1913, § 9098; C.S.1922, § 10123; C.S.1929, § 29-1821; R.S.1943, § 29-1822;
Laws 1986, LB 1177, § 7; Laws 2015, LB268, § 13; Referendum 2016, No. 426;
Laws 2020, LB881, § 17.
Annotations
District court has discretion to hold hearing voluntarily on mental competency of defendant to undergo sentence. State v. Saxon, 187 Neb. 338, 190 N.W.2d 854 (1971).
Insanity as a bar to the imposition of sentence presents a factual issue for the determination of the court. State v. Anderson, 186 Neb. 435, 183 N.W.2d 766 (1971).
Insanity as bar to imposition of sentence cannot be raised by habeas corpus. Sedlacek v. Hann, 156 Neb. 340, 56 N.W.2d 138 (1952).
This section imposes a duty on but does not go to the jurisdiction of the court. Sedlacek v. Greenholtz, 152 Neb. 386, 41 N.W.2d 154 (1950).
One who has become insane after the commission of a crime ought not to be tried for the offense during the continuance of the disability. Carlsen v. State, 129 Neb. 84, 261 N.W. 339 (1935).
Where insanity has not originated after commission of act, there is no requirement of trial of question of insanity. Walker v. State, 46 Neb. 25, 64 N.W. 357 (1895).
29-1823.
Mental incompetency of defendant before or during trial; determination by judge; effect; costs; hearing; commitment proceeding; treatment; department; duties; motion to discharge; considerations; reimbursement to counties for lodging.(1) If at any time prior to or during trial it appears that the defendant has become mentally incompetent to stand trial, such disability may be called to the attention of the district or county court by the county attorney or city attorney, by the defendant, or by any person for the defendant. The judge of the district or county court of the county where the defendant is to be tried shall have the authority to determine whether or not the defendant is competent to stand trial. The judge may also cause such medical, psychiatric, or psychological examination of the defendant to be made as he or she deems warranted and hold such hearing as he or she deems necessary. The cost of the examination, when ordered by the court, shall be the expense of the county in which the crime is charged. The judge may allow any physician, psychiatrist, or psychologist a reasonable fee for his or her services, which amount, when determined by the judge, shall be certified to the county board which shall cause payment to be made. Should the judge determine after a hearing that the defendant is mentally incompetent to stand trial and that there is a substantial probability that the defendant will become competent within the reasonably foreseeable future, the judge shall order the defendant to be committed to the Department of Health and Human Services to provide appropriate treatment to restore competency. This may include commitment to a state hospital for the mentally ill, another appropriate state-owned or state-operated facility, or a contract facility or provider pursuant to an alternative treatment plan proposed by the department and approved by the court under subsection (2) of this section until such time as the disability may be removed.
(2)(a) If the department determines that treatment by a contract facility or provider is appropriate, the department shall file a report outlining its determination and such alternative treatment plan with the court. Within twenty-one days after the filing of such report, the court shall hold a hearing to determine whether such treatment is appropriate. The court may approve or deny such alternative treatment plan.
(b) A defendant shall not be eligible for treatment by a contract facility or provider under this subsection if the judge determines that the public's safety would be at risk.
(3) Within sixty days after entry of the order committing the defendant to the department, and every sixty days thereafter until either the disability is removed or other disposition of the defendant has been made, the court shall hold a hearing to determine (a) whether the defendant is competent to stand trial or (b) whether or not there is a substantial probability that the defendant will become competent within the reasonably foreseeable future.
(4) If it is determined that there is not a substantial probability that the defendant will become competent within the reasonably foreseeable future, then the state shall either (a) commence the applicable civil commitment proceeding that would be required to commit any other person for an indefinite period of time or (b) release the defendant. If during the period of time between the sixty-day review hearings set forth in subsection (3) of this section it is the opinion of the department that the defendant is competent to stand trial, the department shall file a report outlining its opinion with the court and within seven days after such report being filed the court shall hold a hearing to determine whether or not the defendant is competent to stand trial. The state shall pay the cost of maintenance and care of the defendant during the period of time ordered by the court for treatment to remove the disability.
(5) The defendant, by and through counsel, may move to be discharged from the offenses charged in the complaint or information for the reason that there is not a substantial probability that the defendant will become competent within the reasonably foreseeable future.
(6) In determining whether there is a substantial probability that a defendant will become competent in the reasonably foreseeable future, the court shall take into consideration the likely length of any sentence that would be imposed upon the defendant. If the court discharges the defendant, the court shall state whether such discharge is with or without prejudice.
(7)(a) If a judge orders a defendant to be committed to the Department of Health and Human Services to receive treatment to restore competency and such defendant remains lodged in the county jail, the department shall reimburse the county for lodging the defendant.
(b) Costs of lodging the defendant shall include the daily rate of lodging the defendant, food, medical services, transportation, and any other necessary costs incurred by the county to lodge the defendant.
(c) The daily rate of lodging the defendant shall be one hundred dollars per day for each day or portion thereof after the first thirty days that the defendant is lodged in the county jail after a determination by a judge that the defendant is required to be restored to competency. On July 1, 2023, and each July 1 thereafter, the department shall adjust the amount to be reimbursed to the county jails by an amount equal to the percentage increase, if any, in the Consumer Price Index for All Urban Consumers, as published by the United States Department of Labor, Bureau of Labor Statistics, for the twelve months ending on June 30 of such year.
(d) For purposes of this section, medical services has the same meaning as provided in subsection (2) of section 47-701.
Source:Laws 1967, c. 174, § 1, p. 489;
Laws 1997, LB 485, § 1; Laws 2017, LB259, § 4; Laws 2019, LB686, § 5; Laws 2020, LB881, § 18; Laws 2022, LB921, § 1.
Cross References
Attendance of witnesses, right of accused to compel, see Article I, section 11, Constitution of Nebraska.
Annotations
1. Competency, how determined
2. Procedure
3. Miscellaneous
1. Competency, how determined
Lay witness testimony is admissible in a competency hearing under subsection (1) of this section. State v. Martinez, 295 Neb. 1, 886 N.W.2d 256 (2016).
The means to be employed to determine competency or the substantial probability of competency within the foreseeable future are discretionary with the district court, and the court may cause such medical, psychiatric, or psychological examination of the accused to be made as the court deems necessary in order to make such a determination. State v. Lassek, 272 Neb. 523, 723 N.W.2d 320 (2006).
If the district court determines that an accused is incompetent to stand trial, then the court must make a determination whether there is a substantial probability that the accused will become competent within the foreseeable future under this section; absent such a factual determination, there is no order to be meaningfully reviewed on appeal. The means to be employed to determine competency or the substantial probability of competency within the foreseeable future are discretionary with the district court, and the court may cause such medical, psychiatric, or psychological examination of the accused to be made as he or she deems necessary in order to make such a determination under this section. State v. Jones, 258 Neb. 695, 605 N.W.2d 434 (2000).
The issue of competency is one of fact, and the means used to resolve it are discretionary with the court. State v. Hittle, 257 Neb. 344, 598 N.W.2d 20 (1999).
The question of competency to stand trial is to be determined by the court and the means are discretionary. State v. Crenshaw, 189 Neb. 780, 205 N.W.2d 517 (1973).
2. Procedure
An "examination and hearing on competency" within the meaning of section 29-1207(4)(a) is the well-defined statutory procedure for determining competency to stand trial established by this section. State v. Tamayo, 280 Neb. 836, 791 N.W.2d 152 (2010).
Proceeding to determine the competency of the accused to stand trial is a "special proceeding" and an order finding the defendant incompetent to stand trial and ordering him confined until such time as he is competent is a "final order" from which an appeal may be taken. State v. Guatney, 207 Neb. 501, 299 N.W.2d 538 (1980).
3. Miscellaneous
A finding of "conditionally competent" is not permitted under Nebraska law. State v. Lauhead, 306 Neb. 701, 947 N.W.2d 296 (2020).
An individual has a constitutional right not to be put to trial when lacking mental competency, and this includes sentencing. State v. Hessler, 282 Neb. 935, 807 N.W.2d 504 (2011).
Determination that accused is mentally incompetent to stand trial does not invalidate prior proceedings nor determine his mental condition at any prior time. State v. Klatt, 187 Neb. 274, 188 N.W.2d 821 (1971).
This section does not change the common law in such cases but leaves it to the discretion of the court to hold such hearing, if any, as it deems necessary. State v. Anderson, 186 Neb. 435, 183 N.W.2d 766 (1971).
Decision whether a competency hearing should be held is within sound discretion of trial court. Crenshaw v. Wolff, 504 F.2d 377 (8th Cir. 1974).
29-1824.
Competency restoration treatment; network of contract facilities and providers; department; powers.The Department of Health and Human Services may establish a network of contract facilities and providers to provide competency restoration treatment pursuant to alternative treatment plans under section 29-1823. The department may create criteria for participation in such network and establish training in competency restoration treatment for participating contract facilities and providers.
29-1825.
Transferred to section 23-3405.
29-1826.
Transferred to section 23-3406.
29-1827.
Transferred to section 23-3407.
29-1828.
Transferred to section 23-3408.
29-1901.
Subpoenas in traffic and criminal cases; provisions applicable.(1) The statutes governing subpoenas in civil actions and proceedings shall also govern subpoenas in traffic and criminal cases, except that subsections (1), (3), and (4) of section 25-1228 shall not apply to those cases. The payment of compensation and mileage to witnesses in those cases shall be governed by section 29-1903.
(2) A trial subpoena in a traffic and criminal case shall contain the statement specified in subsection (5) of section 25-1223.
Source:G.S.1873, c. 58, § 459, p. 824; R.S.1913, § 9099; C.S.1922, § 10124; C.S.1929, § 29-1901; R.S.1943, § 29-1901;
Laws 1990, LB 87, § 3; Laws 1992, LB 435, § 1; Laws 1992, LB 1059, § 23;
Laws 2017, LB509, § 5.
Annotations
Witness in criminal case cannot justify failure to obey subpoena on ground that he had demanded his fees and they were not paid. Huckins v. State, 61 Neb. 871, 86 N.W. 485 (1901).
29-1902.
Return of subpoenas.If the subpoena be served by such special deputy, it shall be his duty, after serving the same, to return thereon the manner in which the same was served; and also to make oath or affirmation to the truth of such return, before some person competent to administer oaths, which shall be endorsed on such writ; and the same shall be returned according to the command thereof by the person serving the same through the post office or otherwise.
Source:G.S.1873, c. 58, § 460, p. 824; R.S.1913, § 9100; C.S.1922, § 10125; C.S.1929, § 29-1902; R.S.1943, § 29-1902.
29-1903.
Traffic, criminal, and juvenile cases; witness fees and mileage.(1) The amount of the witness fee and mileage in traffic, criminal, and juvenile cases is governed by section 33-139.
(2) A witness in a traffic, criminal, or juvenile case shall be entitled to a witness fee and mileage after appearing in court in response to a subpoena. The clerk of the court shall immediately submit a claim for payment of witness fees and mileage on behalf of all such witnesses to the county clerk in cases involving a violation of state law or to the city clerk in cases involving a violation of a city ordinance. All witness fees and mileage paid by a defendant as part of the court costs ordered by the court to be paid shall be reimbursed to the county or city treasurer as appropriate.
(3) Any person accused of crime amounting to a misdemeanor or felony shall have compulsory process to enforce the attendance of witnesses in his or her behalf.
Source:G.S.1873, c. 58, § 461, p. 825; Laws 1885, c. 106, § 1, p. 394; R.S.1913, § 9101; C.S.1922, § 10126; C.S.1929, § 29-1903; R.S.1943, § 29-1903;
Laws 1981, LB 204, § 40; Laws 2017, LB509, § 6.
Annotations
Defendant may not be arbitrarily deprived of testimony that would have been relevant, material, and vital to the defense. State v. Cain, 223 Neb. 796, 393 N.W.2d 727 (1986).
Court may require showing of what testimony may be expected of prospective witness before entry of order for compulsory process. O'Rourke v. State, 166 Neb. 866, 90 N.W.2d 820 (1958).
Where testimony of witness was incompetent, failure to serve compulsory process was not prejudicial. Garcia v. State, 159 Neb. 571, 68 N.W.2d 151 (1955).
Liability of county arises only by express provisions of statute. Worthen v. Johnson County, 62 Neb. 754, 87 N.W. 909 (1901).
29-1904.
Depositions; certain witnesses; application by defendant; when granted; interrogatories; notice to county attorney.Where any issue of fact is joined on any indictment, and any material witness for the defendant resides out of the state, or, residing within the state, is sick or infirm or is about to leave the state, such defendant may apply in writing to the court in term time, or the judge thereof in vacation, for a commission to examine such witness upon interrogatories thereto annexed, and such court or judge may grant the same, and order what and for how long a time notice shall be given the prosecuting attorney before the witness shall be examined.
Source:G.S.1873, c. 58, § 462, p. 825; R.S.1913, § 9102; C.S.1922, § 10127; C.S.1929, § 29-1904; R.S.1943, § 29-1904.
Cross References
Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, see section 29-1911.
Annotations
This section does not provide for the taking of depositions at county expense in advance of the trial. State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007).
It was not necessary to analyze this section to dispose of claim that trial court erred in refusing permission to take deposition of inmates of penal institution. Rains v. State, 173 Neb. 586, 114 N.W.2d 399 (1962).
Taking of depositions at county expense in advance of trial is not authorized. Vore v. State, 158 Neb. 222, 63 N.W.2d 141 (1954).
Defendant was entitled to continuance to take deposition out of the state where timely application was made. Dolen v. State, 148 Neb. 317, 27 N.W.2d 264 (1947).
On admission by state that proposed witness would testify as stated in affidavit, court may refuse continuance. Fanton v. State, 50 Neb. 351, 69 N.W. 953 (1897); Burris v. Court, 48 Neb. 179, 66 N.W. 1131 (1896).
Correctness of ruling in suppressing deposition, not excepted to, cannot be questioned on error. Clough v. State, 7 Neb. 320 (1878).
29-1905.
Depositions; how taken.The proceedings in taking the examination of such witness and returning it to court shall be governed in all respects as the taking of depositions in all civil cases.
Source:G.S.1873, c. 58, § 463, p. 825; R.S.1913, § 9103; C.S.1922, § 10128; C.S.1929, § 29-1905; R.S.1943, § 29-1905.
Annotations
It was not necessary to analyze this section to dispose of claim that trial court erred in refusing permission to take deposition of inmates of penal institution. Rains v. State, 173 Neb. 586, 114 N.W.2d 399 (1962).
29-1906.
Terms, defined.(1) The word witness as used in sections 29-1906 to 29-1911 shall include a person whose testimony is desired in any proceeding or investigation by a grand jury or in a criminal action, prosecution or proceeding; (2) the word state shall include any territory of the United States and the District of Columbia; (3) the word summons shall include a subpoena, order or other notice requiring the appearance of a witness.
Source:Laws 1937, c. 71, § 1, p. 257; C.S.Supp.,1941, § 29-1906; R.S.1943, § 29-1906.
29-1907.
Person in this state required as witness in another state; procedure to secure attendance; fees; failure to testify; punishment.If a judge of a court of record in any state, which by its laws has made provision for commanding persons within that state to attend and testify in this state, certifies under the seal of such court that there is a criminal prosecution pending in such court, or that a grand jury investigation has commenced or is about to commence, that a person being within this state is a material witness in such prosecution, or grand jury investigation, and that his or her presence will be required for a specified number of days, upon presentation of such certificate to any judge of a court of record in the county in which such person is, such judge shall fix a time and place for a hearing, and shall make an order directing the witness to appear at a time and place certain for the hearing. If at a hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or a grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending, or grand jury investigation has commenced or is about to commence and of any other state through which the witness may be required to pass by ordinary course of travel, will give to him or her protection from arrest and the service of civil and criminal process, he or she shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending, or where a grand jury investigation has commenced or is about to commence at a time and place specified in the summons. In any such hearing the certificate shall be prima facie evidence of all the facts stated therein. If the certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure his or her attendance in the requesting state, such judge may, in lieu of notification of the hearing, direct that such witness be forthwith brought before him or her for such hearing; and the judge at the hearing being satisfied of the desirability of such custody and delivery, for which determination the certificate shall be prima facie proof of such desirability, may, in lieu of issuing subpoena or summons, order that the witness be forthwith taken into custody and delivered to an officer of the requesting state. If the witness, who is summoned as above provided, after being paid or tendered by some properly authorized person an amount equal to the rate authorized in section 81-1176 for mileage for state employees for each mile by the ordinary traveled route to and from the court where the prosecution is pending and five dollars for each day that he or she is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, he or she shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.
29-1908.
Person in another state required as witness in this state; procedure to secure attendance; fees; failure to testify; punishment.If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigations commenced or about to commence, in this state, is a material witness in a prosecution pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. Such certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his or her attendance in this state. This certificate shall be presented to a judge of a court of record in the county in which the witness is found. If the witness is summoned to attend and testify in this state he or she shall be tendered an amount equal to the rate authorized in section 81-1176 for mileage for state employees for each mile by the ordinary traveled route to and from the court where the prosecution is pending, and five dollars for each day that he or she is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court. If such witness, after coming into this state, fails without good cause to attend and testify as directed in the summons, he or she shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.
Cross References
Witness committed to jail, see section 29-508.02.
Annotations
Attendance of witness from without state cannot be compelled at expense of county. Vore v. State, 158 Neb. 222, 63 N.W.2d 141 (1954).
29-1909.
Witness from another state; not subject to arrest or civil process while in this state.If a person comes into this state in obedience to a summons directing him to attend and testify in this state, he shall not while in this state pursuant to such summons be subject to arrest for the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons. If a person passes through this state while going to another state in obedience to a summons to attend and testify in that state or while returning therefrom, he shall not while so passing through this state be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons.
Source:Laws 1937, c. 71, § 4, p. 259; C.S.Supp.,1941, § 29-1909; R.S.1943, § 29-1909.
29-1910.
Sections, how construed.Sections 29-1906 to 29-1911 shall be so interpreted and construed as to effectuate their general purpose to make uniform the law of the states which enact them. They shall be construed as supplemental to and cumulative with section 29-1904.
Source:Laws 1937, c. 71, § 5, p. 260; C.S.Supp.,1941, § 29-1910; R.S.1943, § 29-1910.
29-1911.
Act, how cited.Sections 29-1906 to 29-1911 may be cited as the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings.
Source:Laws 1937, c. 71, § 6, p. 260; C.S.Supp.,1941, § 29-1911; R.S.1943, § 29-1911.
29-1912.
Request by defendant to inspect and make copies of evidence; granted; when; findings; possibility of harm; effect.(1) When a defendant is charged with a felony or when a defendant is charged with a misdemeanor or a violation of a city or village ordinance for which imprisonment is a possible penalty, he or she may request the court where the case is to be tried, at any time after the filing of the indictment, information, or complaint, to order the prosecuting attorney to permit the defendant to inspect and copy or photograph:
(a) The defendant's statement, if any. For purposes of this subdivision, statement includes any of the following which relate to the investigation of the underlying charge or charges in the case and which were developed or received by law enforcement agencies:
(i) Written or recorded statements;
(ii) Written summaries of oral statements; and
(iii) The substance of oral statements;
(b) The defendant's prior criminal record, if any;
(c) The defendant's recorded testimony before a grand jury;
(d) The names and addresses of witnesses on whose evidence the charge is based;
(e) The results and reports, in any form, of physical or mental examinations, and of scientific tests, or experiments made in connection with the particular case, or copies thereof;
(f) Documents, papers, books, accounts, letters, photographs, objects, or other tangible things of whatsoever kind or nature which could be used as evidence by the prosecuting authority; and
(g) Reports developed or received by law enforcement agencies when such reports directly relate to the investigation of the underlying charge or charges in the case.
(2) The court may issue such an order pursuant to the provisions of this section. In the exercise of its judicial discretion, the court shall consider, among other things, whether:
(a) The request is material to the preparation of the defense;
(b) The request is not made primarily for the purpose of harassing the prosecution or its witnesses;
(c) The request, if granted, would not unreasonably delay the trial of the offense and an earlier request by the defendant could not have reasonably been made;
(d) There is no substantial likelihood that the request, if granted, would preclude a just determination of the issues at the trial of the offense; or
(e) The request, if granted, would not result in the possibility of bodily harm to, or coercion of, witnesses.
(3) Whenever the court refuses to grant an order pursuant to the provisions of this section, it shall render its findings in writing together with the facts upon which the findings are based.
(4) Whenever the prosecuting attorney believes that the granting of an order under the provisions of this section will result in the possibility of bodily harm to witnesses or that witnesses will be coerced, the court may permit him or her to make such a showing in the form of a written statement to be inspected by the court alone. The statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal by the defendant.
(5) This section does not apply to jailhouse informants as defined in section 29-4701. Sections 29-4701 to 29-4706 govern jailhouse informants.
Source:Laws 1969, c. 235, § 1, p. 867;
Laws 1983, LB 110, § 1; Laws 2009, LB63, § 25; Laws 2010, LB771, § 17; Laws 2019, LB352, § 7; Laws 2019, LB496, § 4.
Annotations
1. General
2. Prejudice
3. Particular cases
4. Miscellaneous
1. General
Pursuant to this section, upon a defendant's proper request through discovery procedure, the State must disclose information which is material to the preparation of a defense to the charge against the defendant. In order that the defendant receive a fair trial, requested and material information must be disclosed to the defendant. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).
Section 29-1916 does not provide a basis for a trial court to order a defendant to produce defense exhibits when the defendant has not requested a discovery order pursuant to this section. State v. Kinney, 262 Neb. 812, 635 N.W.2d 449 (2001).
The Supreme Court has not established any court rules that would provide the State with a right of discovery in criminal cases. State v. Kinney, 262 Neb. 812, 635 N.W.2d 449 (2001).
Discovery in a criminal case is, in the absence of a constitutional requirement, controlled by either a statute or court rule. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).
Statutory design for discovery is based upon the Federal Rules of Criminal Procedure. State v. Brown, 214 Neb. 665, 335 N.W.2d 542 (1983).
This section governs what material a criminal defendant is entitled, as a matter of right, to discover. This section does not include information about prior criminal histories of witnesses, and discovery of that information is within the discretion of the trial court. State v. Dimmitt, 5 Neb. App. 451, 560 N.W.2d 498 (1997).
2. Prejudice
Under this section, whether a prosecutor's failure to disclose evidence results in prejudice depends on whether the information sought is material to the preparation of the defense, meaning that there is a strong indication that such information will play an important role in uncovering admissible evidence, aiding preparation of witnesses, corroborating testimony, or assisting impeachment or rebuttal. State v. Harris, 296 Neb. 317, 893 N.W.2d 440 (2017); State v. Castor, 257 Neb. 572, 599 N.W.2d 201 (1999); State v. Kula, 252 Neb. 471, 562 N.W.2d 717 (1997).
When a continuance will cure the prejudice caused by belated disclosure, a continuance should be requested by counsel and granted by the trial court. State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998).
The test for whether nondisclosure is prejudicial is whether the information sought is material to the preparation of the defense, meaning that there is a strong indication that such information will play an important role in uncovering admissible evidence, aiding preparation of witnesses, corroborating testimony, or assisting in impeachment or rebuttal. State v. Null, 247 Neb. 192, 526 N.W.2d 220 (1995).
3. Particular cases
An expert's oral, unrecorded opinions do not fall within the scope of subdivision (1)(e) of this section. State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).
A trial court's erroneous failure to notify defense counsel of an ex parte, court-ordered examination prior to such examination and the subsequent delay in defense counsel's reception of the expert examiner's report until trial has commenced is harmless when defense counsel receives a copy of the expert examiner's report as soon as the state receives such a copy, and the defense has adequate opportunities to depose the expert examiner; hence, admission of the expert examiner's testimony and the denial of defense counsel's motions for continuance and a new trial are not reversible errors. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).
Prosecutor's nondisclosure of pathologist's opinion, given after examination of victim's injuries in photographs, that means used and manner in which victim's wounds were inflicted were not as victim claimed, denied defendant fair trial. State v. Brown, 214 Neb. 665, 335 N.W.2d 542 (1983).
A motion to produce addressed to the prosecuting attorney under this section is not an appropriate way for a defendant in a criminal case to procure handwriting exemplars of third parties unless it be alleged that such exemplars are in the possession of the prosecutor and are relevant evidence in the prosecution. State v. Davis, 203 Neb. 284, 278 N.W.2d 351 (1979).
At hearing on motion to produce hereunder, the trial court must determine by inquiry of the prosecuting attorney whether or not he has any item designated in the statute and in the motion to produce, and if the court refuses to order production, it shall render findings in writing with foundation facts. State v. Eskew, 192 Neb. 76, 218 N.W.2d 898 (1974).
Where defendant's counsel had knowledge of a polygraph examination and did not attempt discovery nor to subpoena the examiner before trial, the report was not newly discovered evidence. State v. Seger, 191 Neb. 760, 217 N.W.2d 828 (1974).
Where LSD tablet was used in test and graph was not preserved, but it was stipulated results of laboratory test, investigation, and experiments were produced and copies given to defendant and no specific request for graph was made in discovery motion, refusal of court to suppress evidence was not error. State v. Batchelor, 191 Neb. 148, 214 N.W.2d 276 (1974).
Tape recording of conversation between undercover agent and defendant made before he was accused or indicted are admissible when he had taken no steps to discover and has on cross-examination elicited testimony of the conversation from the witness. State v. Myers, 190 Neb. 146, 206 N.W.2d 851 (1973).
Denial of a request during trial for a recess to examine a statement of accomplice whose name had been endorsed on information as a witness was not an abuse of discretion. State v. McCown, 189 Neb. 495, 203 N.W.2d 445 (1973).
The State did not fail to comply with subsection (1)(e) of this section when it did not provide the defendant with a chromatogram graphic printout of his blood test result during discovery, where chromatogram had to be interpreted by a forensic scientist to determine its validity, the defendant was provided with the laboratory result during discovery, and the scientist was questioned about the chromatogram during trial. State v. Hashman, 20 Neb. App. 1, 815 N.W.2d 658 (2012).
A protective order limiting the defendant's and defense counsel's access to sensitive items in a sexual assault on a child case was properly granted. State v. Lovette, 15 Neb. App. 590, 733 N.W.2d 567 (2007).
4. Miscellaneous
The State may disseminate discovery to a criminal defendant through his or her counsel. State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
Materiality is defined more broadly under this section than under the U.S. Constitution, and thus, evidence that is material under the U.S. Constitution is material under this section. State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998).
29-1913.
Discovery; evidence of prosecuting authority; test or analysis by defense; when allowed; when inadmissible.(1) When in any felony prosecution or any prosecution for a misdemeanor or a violation of a city or village ordinance for which imprisonment is a possible penalty, the evidence of the prosecuting authority consists of scientific tests or analyses of ballistics, firearms identification, fingerprints, blood, semen, or other stains, upon motion of the defendant the court where the case is to be tried may order the prosecuting attorney to make available to the defense such evidence necessary to allow the defense to conduct like tests or analyses with its own experts. The order shall specify the time, place, and manner of making such tests or analyses by the defense. Such an order shall not be entered if the tests or analyses by the defense cannot be made because of the natural deterioration of the evidence.
(2) If the evidence necessary to conduct the tests or analyses by the defense is unavailable because of the neglect or intentional alteration by representatives of the prosecuting authority, other than alterations necessary to conduct the initial tests, the tests or analyses by the prosecuting authority shall not be admitted into evidence.
Annotations
There is no obligation for the district court to suppress the evidence without a motion that the specific evidence be made available to conduct like tests or analyses. In the absence of any discovery motion, the trial court cannot know the precise issue presented and make the necessary factual findings in determining whether an order of discovery should be granted. And without a proper discovery order and a claim of the violation of such order, the court cannot properly determine whether the evidence subject to the order was, in fact, unavailable and whether it was unavailable due to neglect or intentional alteration. State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).
Under the plain language of this section, exclusion of the described tests or analyses is a mandatory sanction for violation of the discovery order issued under this section, in the event of unavailability due to neglect or intentional alteration as described in the section. State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).
It is not an abuse of discretion for the trial court to admit expert testimony regarding the analysis of a substance necessarily consumed in testing, provided that the scientific or technical basis of the expert's opinion and the specific facts of the case on which the expert's opinion are based are before the jury and the opposing party has the opportunity to cross-examine the expert. State v. Peterson, 242 Neb. 286, 494 N.W.2d 551 (1993).
Where evidence necessary to conduct tests or analyses by the defense is unavailable due to the neglect or intentional alteration by the State, suppression of the test results is the exclusive remedy under subsection (2) of this section. State v. Tanner, 233 Neb. 893, 448 N.W.2d 586 (1989).
Where substance necessary for test by defense has been made unavailable by state, evidence of state's tests may be suppressed. State v. Brodrick, 190 Neb. 19, 205 N.W.2d 660 (1973).
29-1914.
Discovery order; limitation.Whenever an order is issued pursuant to the provisions of section 29-1912 or 29-1913, it shall be limited to items or information that:
(1) Directly relate to the investigation of the underlying charge or charges in the case;
(2) Are within the possession, custody, or control of the state or local subdivisions of government; and
(3) Are known to exist by the prosecution or that, by the exercise of due diligence, may become known to the prosecution.
Annotations
In a driving under the influence case, where the record clearly showed that a computer source code for a breath-testing machine was not in the State's possession and that the manufacturer of the machine considered the source code a trade secret and proprietary information, the source code was not discoverable under this section. State v. Kuhl, 16 Neb. App. 127, 741 N.W.2d 701 (2007).
29-1915.
Discovery order; specify time, place, and manner of inspections and making copies.An order issued pursuant to the provisions of sections 29-1912 to 29-1921 shall specify the time, place, and manner of making the inspections and of making copies or photographs and may prescribe such terms and conditions as are just.
Source:Laws 1969, c. 235, § 4, p. 869.
Annotations
A protective order limiting the defendant's and defense counsel's access to sensitive items in a sexual assault on a child case was properly granted. State v. Lovette, 15 Neb. App. 590, 733 N.W.2d 567 (2007).
29-1916.
Discovery order; reciprocity to prosecution; waiver of privilege of self-incrimination.(1) Whenever the court issues an order pursuant to the provisions of sections 29-1912 and 29-1913, the court may condition its order by requiring the defendant to grant the prosecution like access to comparable items or information included within the defendant's request which:
(a) Are in the possession, custody, or control of the defendant;
(b) The defendant intends to produce at the trial; and
(c) Are material to the preparation of the prosecution's case.
(2) Whenever a defendant is granted an order under sections 29-1912 to 29-1921, the defendant shall be deemed to have waived the privilege of self-incrimination for the purposes of the operation of this section.
Annotations
This section does not provide a basis for a trial court to order a defendant to produce defense exhibits when the defendant has not requested a discovery order pursuant to section 29-1912. State v. Kinney, 262 Neb. 812, 635 N.W.2d 449 (2001).
Whenever court issues order to produce documents or information on defendant's motion, it may require defendant to reciprocate. State v. Eskew, 192 Neb. 76, 218 N.W.2d 898 (1974).
29-1917.
Deposition of witness or sexual assault victim; when; procedure; use at trial.(1) Except as provided in section 29-1926, at any time after the filing of an indictment or information in a felony prosecution, the prosecuting attorney or the defendant may request the court to allow the taking of a deposition of any person other than the defendant who may be a witness in the trial of the offense. The court may order the taking of the deposition when it finds the testimony of the witness:
(a) May be material or relevant to the issue to be determined at the trial of the offense; or
(b) May be of assistance to the parties in the preparation of their respective cases.
(2) An order granting the taking of a deposition shall include the time and place for taking such deposition and such other conditions as the court determines to be just.
(3) Except as provided in subsection (4) of this section, the proceedings in taking the deposition of a witness pursuant to this section and returning it to the court shall be governed in all respects as the taking of depositions in civil cases, including section 25-1223.
(4)(a) A sexual assault victim may request to have an advocate of the victim's choosing present during a deposition under this section. The prosecuting attorney shall inform the victim that the victim may make such request as soon as reasonably practicable prior to the deposition. If the victim wishes to have an advocate present, the victim shall, if reasonably practicable, inform the prosecuting attorney if an advocate will be present, and, if known, the advocate's identity and contact information. If so informed by the victim, the prosecuting attorney shall notify the defendant as soon as reasonably practicable.
(b) An advocate present at a deposition under this section shall not interfere with the deposition or provide legal advice.
(c) For purposes of this subsection, the terms sexual assault victim, victim, and advocate have the same meanings as in section 29-4309.
(5) A deposition taken pursuant to this section may be used at the trial by any party solely for the purpose of contradicting or impeaching the testimony of the deponent as a witness.
Source:Laws 1969, c. 235, § 6, p. 870;
Laws 1988, LB 90, § 2; Laws 1993, LB 178, § 1; Laws 2011, LB667, § 6; Laws 2019, LB496, § 7; Laws 2020, LB43, § 10.
Cross References
Child victim or child witness, use of videotape deposition, see section 29-1926.
Annotations
A district court's order authorizing a second deposition of a State witness who refused to answer questions during the first deposition was a sufficient remedy for noncompliance with discovery, where the authorization occurred approximately 4 months before trial was to begin. State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020).
There is no obligation for the State to produce the victim or assist in locating the victim for purposes of a pretrial deposition by defense counsel. State v. Anderson, 305 Neb. 978, 943 N.W.2d 690 (2020).
Subsection (4) of this section restricts the use of a criminal deposition only at the trial rather than at any trial. In other words, it restricts the deposition's use at the criminal trial for which the deposition was taken, and not in a separate civil action. Werner v. County of Platte, 284 Neb. 899, 824 N.W.2d 38 (2012).
The plain language of this section, by using the term "may," indicates that the granting of a deposition is within the trial court's discretion. A defendant is not entitled, as a matter of right, to a deposition under this section. State v. Collins, 283 Neb. 854, 812 N.W.2d 285 (2012).
This statute governs the appropriate use of discovery depositions in a criminal case when the deponent is available as a testifying witness. State v. Castor, 257 Neb. 572, 599 N.W.2d 201 (1999).
A motion for depositions must be filed by a defendant after the information is filed. State v. Murphy, 255 Neb. 797, 587 N.W.2d 384 (1998).
Subsection (4) of this section governs only the appropriate use of a discovery deposition when the deponent is an available, testifying witness. State v. Allen, 252 Neb. 187, 560 N.W.2d 829 (1997).
Defendant is not entitled, as a matter of right, to a deposition pursuant to subsection (1) of this section. State v. Tuttle, 238 Neb. 827, 472 N.W.2d 712 (1991).
29-1918.
Discovery of additional evidence; notify other party and court.If, subsequent to compliance with an order for discovery under the provisions of sections 29-1912 to 29-1921, and prior to or during trial, a party discovers additional material which the party would have been under a duty to disclose or produce at the time of such previous compliance, the party shall promptly notify the other party or the other party's attorney and the court of the existence of the additional material. Such notice shall be given at the time of the discovery of such additional material.
29-1919.
Discovery; failure to comply; effect.If, at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with sections 29-1912 to 29-1921 or an order issued pursuant to sections 29-1912 to 29-1921, the court may:
(1) Order such party to permit the discovery or inspection of materials not previously disclosed;
(2) Grant a continuance;
(3) Prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed; or
(4) Enter such other order as it deems just under the circumstances.
Annotations
Under the plain meaning of this section, if a party fails to comply with discovery and give notice of an intent to call a witness, the court may prohibit that witness from being called. State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020).
Under this section, on determination that a discovery order has not been complied with, the trial court has broad discretion to enter such other order as it deems just under the circumstances. State v. Surber, 221 Neb. 714, 380 N.W.2d 293 (1986).
Subsection (4) of section 29-1919, R.R.S.1943, allows a court to enter no order at all. State v. Vicars, 207 Neb. 325, 299 N.W.2d 421 (1980).
29-1920.
Indigent defendant; costs; how taxed.Whenever a defendant is adjudged indigent, the reasonable costs incurred in the operation of the provisions of sections 29-1912 to 29-1921 shall be taxed as costs against the prosecuting authority.
Source:Laws 1969, c. 235, § 9, p. 871.
29-1921.
Attorney-client privilege protected.Nothing in sections 29-1912 to 29-1921 shall be construed to authorize any disclosure which would violate the attorney-client privilege.
Source:Laws 1969, c. 235, § 10, p. 871.
29-1922.
Motion to produce statement of defendant and names of eyewitnesses; filing; order.Any defendant may file a motion to produce any statement made by the defendant, or furnish the name of every eyewitness who has identified the defendant at a lineup or showup. The motion shall be filed in the court where the case is to be tried and may be made at any time after the information, indictment, or complaint is filed, and must be filed at least ten days before trial or at the time of arraignment, whichever is the later, unless otherwise permitted by the court for good cause shown. Upon a showing that the items requested by the defendant may be material to the preparation of his or her defense and that the request is reasonable, the court shall entertain such motion and upon sufficient showing may at any time order that the discovery or the inspection be denied, restricted, or deferred or may specify the time, place, and manner of the making of the examination and the taking of copies of items requested and may prescribe such other terms and conditions as are just.
29-1923.
Additional statement of defendant or name of eyewitness; prosecutor; notification required; failure to comply; effect.If, subsequent to compliance with an order issued pursuant to section 29-1922, and prior to or during trial, the prosecuting authority discovers any additional statement made by the defendant or the name of any eyewitness who has identified the defendant at a lineup or showup previously requested or ordered which is subject to discovery or inspection under section 29-1922, he or she shall promptly notify the defendant or his or her attorney or the court of the existence of this additional material. Such notice shall be given at the time of the discovery of such additional material. If at any time during the course of the proceedings it is brought to the attention of the court that the prosecuting authority has failed to comply with this section or with an order issued pursuant to section 29-1922, the court may order the prosecuting authority to permit the discovery or inspection of materials or witnesses not previously disclosed, grant a continuance, or prohibit the prosecuting authority from introducing in evidence the material or the testimony of the witness or witnesses not disclosed, or it may enter such other order as it deems just under the circumstances.
29-1924.
Statement, defined.For purposes of sections 29-1922 and 29-1923, statement made by the defendant includes any of the following statements made by the defendant which relate to the investigation of the underlying charge or charges in the case and which were developed or received by law enforcement agencies:
(1) Written or recorded statements;
(2) Written summaries of oral statements; and
(3) The substance of oral statements.
29-1925.
Child victim or child witness; testimony; legislative intent.The Legislature recognizes that obtaining testimony in a criminal prosecution from a child victim of or a child witness to a felony offense may be a delicate matter and may require some special considerations. It is the intent of the Legislature to promote, facilitate, and preserve the testimony of such child victim or child witness in a criminal prosecution to the fullest extent possible consistent with the constitutional right to confrontation guaranteed by the Sixth Amendment of the Constitution of the United States and Article I, section 11, of the Nebraska Constitution.
29-1926.
Child victim or child witness; video deposition and in camera testimony; conditions; use; findings by court; release; procedure; violation; penalty.(1)(a) Upon request of the prosecuting or defense attorney and upon a showing of compelling need, the court shall order the taking of a video deposition of a child victim of or child witness to any offense punishable as a felony. The deposition ordinarily shall be in lieu of courtroom or in camera testimony by the child. If the court orders a video deposition, the court shall:
(i) Designate the time and place for taking the deposition. The deposition may be conducted in the courtroom, the judge's chambers, or any other location suitable for video recording;
(ii) Assure adequate time for the defense attorney to complete discovery before taking the deposition; and
(iii) Preside over the taking of the video deposition in the same manner as if the child were called as a witness for the prosecution during the course of the trial.
(b) Unless otherwise required by the court, the deposition shall be conducted in the presence of the prosecuting attorney, the defense attorney, the defendant, and any other person deemed necessary by the court, including the parent or guardian of the child victim or child witness, an advocate as defined in section 29-4309, or a counselor or other person with whom the child is familiar. Such parent, guardian, advocate, counselor, or other person shall be allowed to sit with or near the child unless the court determines that such person would be disruptive to the child's testimony.
(c) At any time subsequent to the taking of the original video deposition and upon sufficient cause shown, the court shall order the taking of additional video depositions to be admitted at the time of the trial.
(d) If the child testifies at trial in person rather than by video deposition, the taking of the child's testimony may, upon request of the prosecuting attorney and upon a showing of compelling need, be conducted in camera.
(e) Unless otherwise required by the court, the child shall testify in the presence of the prosecuting attorney, the defense attorney, the defendant, and any other person deemed necessary by the court, including the parent or guardian of the child victim or child witness, an advocate as defined in section 29-4309, or a counselor or other person with whom the child is familiar. Such parent, guardian, advocate, counselor, or other person shall be allowed to sit with or near the child unless the court determines that such person would be disruptive to the child's testimony. Unless waived by the defendant, all persons in the room shall be visible on camera except the camera operator.
(f) If deemed necessary to preserve the constitutionality of the child's testimony, the court may direct that during the testimony the child shall at all times be in a position to see the defendant live or on camera.
(g) For purposes of this section, child means a person eleven years of age or younger at the time the motion to take the deposition is made or at the time of the taking of in camera testimony at trial.
(h) Nothing in this section shall restrict the court from conducting the pretrial deposition or in camera proceedings in any manner deemed likely to facilitate and preserve a child's testimony to the fullest extent possible, consistent with the right to confrontation guaranteed in the Sixth Amendment of the Constitution of the United States and Article I, section 11, of the Nebraska Constitution. In deciding whether there is a compelling need that child testimony accommodation is required by pretrial video deposition, in camera live testimony, in camera video testimony, or any other accommodation, the court shall make particularized findings on the record of:
(i) The nature of the offense;
(ii) The significance of the child's testimony to the case;
(iii) The likelihood of obtaining the child's testimony without modification of trial procedure or with a different modification involving less substantial digression from trial procedure than the modification under consideration;
(iv) The child's age;
(v) The child's psychological maturity and understanding; and
(vi) The nature, degree, and duration of potential injury to the child from testifying.
(i) The court may order an independent examination by a psychologist or psychiatrist if the defense attorney requests the opportunity to rebut the showing of compelling need produced by the prosecuting attorney. Such examination shall be conducted in the child's county of residence.
(j) After a finding of compelling need by the court, neither party may call the child witness to testify as a live witness at the trial before the jury unless that party demonstrates that the compelling need no longer exists.
(k) Nothing in this section shall limit the right of access of the media or the public to open court.
(l) Nothing in this section shall preclude discovery by the defendant as set forth in section 29-1912.
(m) The Supreme Court may adopt and promulgate rules of procedure to administer this section, which rules shall not be in conflict with laws governing such matters.
(2)(a) No custodian of a video recording of a child victim or child witness alleging, explaining, denying, or describing an act of sexual assault pursuant to section 28-319, 28-319.01, or 28-320.01 or child abuse pursuant to section 28-707 as part of an investigation or evaluation of the abuse or assault shall release or use a video recording or copies of a video recording or consent, by commission or omission, to the release or use of a video recording or copies of a video recording to or by any other party without a court order, notwithstanding the fact that the child victim or child witness has consented to the release or use of the video recording or that the release or use is authorized under law, except as provided in section 28-730 or pursuant to an investigation under the Office of Inspector General of Nebraska Child Welfare Act. Any custodian may release or consent to the release or use of a video recording or copies of a video recording to law enforcement agencies or agencies authorized to prosecute such abuse or assault cases on behalf of the state.
(b) The court order may govern the purposes for which the video recording may be used, the reproduction of the video recording, the release of the video recording to other persons, the retention and return of copies of the video recording, and any other requirements reasonably necessary for the protection of the privacy and best interests of the child victim or child witness.
(c)(i) Pursuant to section 29-1912, the defendant described in the video recording may petition the district court in the county where the alleged offense took place or where the custodian of the video recording resides for an order requiring the custodian of the video recording to provide a physical copy to the defendant or the defendant's attorney. Such order shall include a protective order prohibiting further distribution of the video recording without a court order.
(ii) Upon obtaining the copy of the video recording pursuant to subdivision (2)(c)(i) of this section, the defendant or the defendant's attorney may request that the recording be transcribed by filing a motion with the court identifying the court reporter or transcriber and the address or location where the transcription will occur. Upon receipt of such request, the court shall enter an order authorizing the distribution of a copy of the video recording to such reporter or transcriber and requiring the copy of the video recording be returned by the reporter or transcriber upon completion of the transcription. Such order may include a protective order related to the distribution of the video recording or information contained in the video recording, including an order that identifying information of the child victim or child witness be redacted from the transcript prepared pursuant to this subsection. Upon return of such copy, the defendant or the defendant's attorney shall certify to the court and the parties that such copy has been returned.
(iii) After obtaining the copy of the video recording pursuant to subdivision (2)(c)(i) of this section, the defendant or the defendant's attorney may file a motion with the court requesting permission to release such copy to an expert or investigator. If the defendant or the defendant's attorney believes that including the name or identifying information of such expert or investigator will prejudice the defendant, the court shall permit the defendant or the defendant's attorney to include such information in the form of a written statement to be inspected by the court alone. The statement shall be sealed and preserved in the records of the court. Upon granting such motion, the court shall enter an order authorizing the distribution of a copy of the video recording to such expert or investigator and requiring the copy of the video recording be returned by the expert or investigator upon the completion of services of the expert or investigator. The order shall not include the name or identifying information of the expert or investigator. Such order may include a protective order related to the distribution of the video recording or information contained in the video recording. Upon return of such copy, the defendant or the defendant's attorney shall certify to the court and the parties that such copy has been returned. Such certification shall not include the name or identifying information of the expert or the investigator.
(d) Any person who releases or uses a video recording except as provided in this section shall be guilty of a Class I misdemeanor.
Source:Laws 1988, LB 90, § 3; Laws 1997, LB 643, § 1; Laws 2006, LB 1199, § 12; Laws 2015, LB347, § 1; Laws 2020, LB43, § 11; Laws 2020, LB1148, § 8.
Cross References
Office of Inspector General of Nebraska Child Welfare Act, see section 43-4301.
Annotations
In a jury trial, a large opaque screen in the courtroom, separating the child witness from the defendant, was a violation of the defendant's due process right to a fair trial. State v. Parker, 276 Neb. 661, 757 N.W.2d 7 (2008).
29-1927.
Admission of evidence of alibi; notice required; waiver.No evidence offered by a defendant for the purpose of establishing an alibi to an offense shall be admitted in the trial of the case unless notice of intention to rely upon an alibi is given to the county attorney and filed with the court at least thirty days before trial, except that such notice shall be waived by the presiding judge if necessary in the interests of justice.
Annotations
This section does not allow a court to order the disclosure of the identity of a defendant's alibi witnesses prior to trial. State v. Woods, 255 Neb. 755, 587 N.W.2d 122 (1998).
29-1928.
Repealed. Laws 2009, LB 63, § 50.
29-1929.
Repealed. Laws 2009, LB 63, § 50.
29-2001.
Trial; presence of accused required; exceptions.No person indicted for a felony shall be tried unless personally present during the trial. Persons indicted for a misdemeanor may, at their own request, by leave of the court be put on trial in their absence. The request shall be in writing and entered on the record of the court.
Source:G.S.1873, c. 58, § 464, p. 825; R.S.1913, § 9104; C.S.1922, § 10129; C.S.1929, § 29-2001; R.S.1943, § 29-2001;
Laws 2018, LB193, § 57.
Annotations
1. Felony
2. Misdemeanor
3. Miscellaneous
1. Felony
Court may not, without notice to and in absence of defendant and his counsel, orally instruct the jury while it is deliberating on the verdict. Strasheim v. State, 138 Neb. 651, 294 N.W. 433 (1940).
In felony case, not capital, defendant, out on bail, may waive right to be present during some of proceedings. Scott v. State, 113 Neb. 657, 204 N.W. 381 (1925).
Person, convicted of felony, and represented by counsel, cannot, as matter of right, insist on being present either at time of filing, argument or ruling on motion for new trial. Davis v. State, 51 Neb. 301, 70 N.W. 984 (1897).
Prisoner must be present at time verdict is received. Dodge v. People, 4 Neb. 220 (1876); Burley v. State, 1 Neb. 385 (1871).
2. Misdemeanor
A person charged with a misdemeanor may, upon his request, be put on trial in his absence. Koop v. City of Omaha, 173 Neb. 633, 114 N.W.2d 380 (1962).
In a misdemeanor case, presence of defendant when verdict is received may be waived. Hyslop v. State, 159 Neb. 802, 68 N.W.2d 698 (1955).
Defendant, charged with misdemeanor, who voluntarily absents himself from courtroom when jury returns verdict, his counsel being present, waived right to be present. Peterson v. State, 64 Neb. 875, 90 N.W. 964 (1902).
3. Miscellaneous
A defendant waived the right to be present at trial by voluntarily leaving the courtroom during witness testimony. State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
A defendant may waive his or her rights under this section through his or her knowing and voluntary absence at trial. State v. Zlomke, 268 Neb. 891, 689 N.W.2d 181 (2004).
Defendant has a right to be present at all times when any proceeding is taken during trial, but that right may be waived, and only by the defendant, personally. State v. Red Kettle, 239 Neb. 317, 476 N.W.2d 220 (1991).
Defendant has no right in common law or the Constitution to be present in chambers while jury instructions are formulated by counsel and the trial judge. State v. Bear Runner, 198 Neb. 368, 252 N.W.2d 638 (1977).
Presence of accused at trial being once shown by record is presumed to have continued unless contrary is made to appear. Bolln v. State, 51 Neb. 581, 71 N.W. 444 (1897).
Section does not apply to hearings on motions and demurrers before commencement of trial. Miller v. State, 29 Neb. 437, 45 N.W. 451 (1890).
Voluntary unnoticed absence of prisoner during examination of witness where witness was reexamined upon prisoner's return, was not ground for new trial. Hair v. State, 16 Neb. 601, 21 N.W. 464 (1884).
View of scene of crime should be made in presence of accused. Fillion v. State, 5 Neb. 351 (1877); Carroll v. State, 5 Neb. 31 (1876).
29-2002.
Joinder of offenses; joint trial; separate trials; when permitted; procedure.(1) Two or more offenses may be charged in the same indictment, information, or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
(2) The court may order two or more indictments, informations, or complaints, or any combination thereof, to be tried together if the offenses could have been joined in a single indictment, information, or complaint or if the defendants, if there is more than one, are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. The procedure shall be the same as if the prosecution were under such single indictment, information, or complaint.
(3) If it appears that a defendant or the state would be prejudiced by a joinder of offenses in an indictment, information, or complaint or by such joinder of offenses in separate indictments, informations, or complaints for trial together, the court may order an election for separate trials of counts, indictments, informations, or complaints, grant a severance of defendants, or provide whatever other relief justice requires.
Source:G.S.1873, c. 58, § 462, p. 825; R.S.1913, § 9105; C.S.1922, § 10130; C.S.1929, § 29-2002; R.S.1943, § 29-2002; Laws 1957, c. 105, § 1, p. 366;
Laws 1992, LB 434, § 1.
Annotations
1. Consolidation
2. Right to separate trial
3. Motion for separate trial
4. Miscellaneous
1. Consolidation
Joined charges do not usually result in prejudice if the evidence is sufficiently simple and distinct for the jury to easily separate evidence of the charges during deliberations. State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020).
The question of whether offenses were properly joined involves a two-stage analysis: (1) whether the offenses were sufficiently related to be joinable and (2) whether the joinder was prejudicial to the defendant. State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020).
Joinder of murder and pandering charges was proper because the evidence was such that the jury could have easily separated evidence of the charges during deliberations. State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).
To determine whether the charges joined for trial are of the same or similar character, an appellate court considers whether the underlying factual allegations supporting the separate charges are of the same or similar character. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
Under this section, an appellate court applies a two-part analysis to determine whether offenses were properly joined at trial. First, it determines whether the offenses were related and joinable, and then it determines whether an otherwise proper joinder was prejudicial to the defendant. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
Where all the charges against the defendant involved allegations of sexual misconduct with minors for whom he occupied a position of trust, the charges were joinable under subsection (1) of this section because they were of the same or similar character. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
The propriety of a joint trial involves two questions: whether the consolidation is proper because the defendants could have been joined in the same indictment or information, and whether there was a right to severance because the defendants or the State would be prejudiced by an otherwise proper consolidation of the prosecutions for trial. State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).
In a murder case, the fact that one codefendant was defending against the charge of aiding and abetting the other codefendant in committing the underlying crime does not necessarily create mutually exclusive defenses sufficient to mandate severance. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).
The fact that codefendants in a murder case each accused the other of being the shooter is not sufficient by itself to create mutually exclusive defenses sufficient to mandate severance. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).
The mere claim of antagonistic defenses is not a sufficient reason for separate trials of codefendants in a murder case. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).
The propriety of a joint trial involves two questions: whether the consolidation is proper because the defendants could have been joined in the same indictment or information, and whether there was a right to severance because the defendants or the State would be prejudiced by an otherwise proper consolidation of the prosecutions for trial. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).
When considering whether the trials of codefendants should be severed, the existence of mutually antagonistic defenses is not prejudicial per se. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).
Where codefendants in a murder case each accused the other of being the shooter and there were other possible shooters, the codefendants did not have mutually exclusive defenses that resulted in sufficient prejudice to require severance. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).
A defendant is not considered prejudiced by a joinder where the evidence relating to both offenses would be admissible in a trial of either offense separately. State v. Schroeder, 279 Neb. 199, 777 N.W.2d 793 (2010).
The propriety of a joint trial involves two questions: Whether there were appropriate grounds for consolidation and whether such consolidation would prejudice the defendant. State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999).
The propriety of a joint trial involves two questions: whether the consolidation is proper because defendants could have been joined in the same indictment or information and whether there was a right to severance because defendants or the State would be prejudiced by an otherwise proper consolidation of the prosecutions for trial. State v. Brunzo, 248 Neb. 176, 532 N.W.2d 296 (1995).
If the offenses charged are of the same or similar character, or are based on the same act or transaction, the offenses may be joined in one trial. State v. Lewis, 241 Neb. 334, 488 N.W.2d 518 (1992).
Joinder or consolidation is not prejudicial error where evidence relating to both offenses would have been admissible in a trial of either offense separately. State v. Evans, 235 Neb. 575, 456 N.W.2d 739 (1990).
If the offenses involved were of the same or similar character, they can be joined in one information, and the trial court can order that they be tried together. State v. Porter, 235 Neb. 476, 455 N.W.2d 787 (1990).
Subsection (3) of this section allows the joinder of criminal defendants for trial if the defendants could have been joined in a single indictment, information, or complaint. State v. Lee, 227 Neb. 277, 417 N.W.2d 26 (1987).
The joinder of criminal defendants in an indictment or information is governed by subsection (2) of this section, which allows joinder if the defendants "are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." State v. Lee, 227 Neb. 277, 417 N.W.2d 26 (1987).
If the offenses charged are of the same or similar character, or are based on the same act or transaction, the offenses may be joined in one trial. State v. Vrtiska, 225 Neb. 454, 406 N.W.2d 114 (1987).
Offenses of the same or similar character may be joined in one information and tried together. State v. McGuire, 218 Neb. 511, 357 N.W.2d 192 (1984).
Joinder is only permissible if the defendants are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses, which means that the two charges are so closely linked in time, place, and circumstance that a complete account of one charge cannot be related without relating details of the other charge or where the facts of each charge can be explained adequately only by drawing upon the facts of the other charge. A trial court may not consolidate defendants' cases for trial if this section does not permit joinder of those same defendants in a single indictment and, in those cases where defendants have been improperly consolidated for trial, such action is prejudicial per se and severance is not a matter of discretion but is a matter of right. State v. Brehmer, 211 Neb. 29, 317 N.W.2d 885 (1982).
Where evidence relating to both offenses would have been admissible in a separate trial of either offense, joinder of offenses is permissible, even though offenses occurred ninety days apart. State v. Walker, 200 Neb. 273, 263 N.W.2d 454 (1978).
Where defendants acted together in offense charged, consolidation of their cases for trial is proper in absence of a showing of prejudice. State v. Boyce, 194 Neb. 538, 233 N.W.2d 912 (1975); State v. Saltzman, 194 Neb. 525, 233 N.W.2d 914 (1975).
Cases may be consolidated for trial if the offenses charged are based on the same act or transaction. State v. Shiller, 191 Neb. 291, 214 N.W.2d 616 (1974).
Cases may be consolidated for trial if the offenses charged are based on the same act or transaction. State v. Shimp, 190 Neb. 137, 206 N.W.2d 627 (1973).
Ruling of court upon motion for consolidation of criminal prosecutions properly joinable in a single information will not be disturbed in absence of abuse of discretion. State v. Bazer, 189 Neb. 711, 204 N.W.2d 799 (1973).
When the offenses charged are of the same or similar character or are based on the same act or transaction or on connected acts, they may be joined. If it appears that such joinder would prejudice defendant, the court may order an election for separate trials of the counts. State v. Rodgers, 186 Neb. 633, 185 N.W.2d 448 (1971).
Joint trial of codefendants is authorized. State v. Knecht, 181 Neb. 149, 147 N.W.2d 167 (1966).
Separate informations charging each of defendants with one robbery may be consolidated for trial. State v. Wilson, 174 Neb. 86, 115 N.W.2d 794 (1962).
2. Right to separate trial
While subsections (1) and (3) of this section present different questions, it is clear that there is no error under either subsection if joinder was not prejudicial. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018).
A defendant has no constitutional right to a separate trial on different charges. Instead, this section controls the joinder or separation of charges for trial. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
A defendant opposing joinder of charges has the burden of proving prejudice. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
Generally, a defendant must show that the court’s refusal to sever the offenses caused severe and specified prejudice in his or her trial, not merely a better chance of acquittal in separate trials. Moreover, absent a showing of substantial prejudice, spillover of evidence from one count to another does not require severance. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
Prejudice is not shown if evidence of one charge would have been admissible in a separate trial of another charge. Additionally, prejudice usually does not occur from joined charges if the evidence is sufficiently simple and distinct for the jury to easily separate evidence of the charges during deliberations. This is particularly true where the trial court specifically instructs the jury to separately consider the evidence for each offense. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
The defendant failed to show prejudice from joined charges where (1) the evidence supporting each charge was simple and distinct so that the jury could separate the charges and associated evidence, instead of combining evidence of other charges to find guilt that it would not have found if the court had ordered separate trials; (2) the trial judge specifically instructed the jury that it was to keep the charges separate and come to a separate decision regarding each charge; and (3) the jury found the defendant guilty of some charges but not others, showing that it actually separated the evidence and offenses. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
Charges of one count of first degree sexual assault of a child and four counts of child abuse were improperly joined together. First degree sexual assault is a crime of a different nature than child abuse, and the charged sexual assault occurred over a different time period than the alleged child abuse. The sexual assault charge was not based on the same act or transaction; only one of four child victims was sexually assaulted outside the presence of the other children while many of the alleged acts of child abuse occurred in the presence of multiple children. The record did not show the charges were part of an inferable common scheme or plan. Counsel was deficient in failing to oppose joinder of the charges, and counsel’s deficient performance prejudiced the defendant, warranting relief for ineffective assistance of counsel on direct appeal. State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013).
Severance is not a matter of right, and a ruling of the trial court with regard thereto will not be disturbed on appeal absent a showing of prejudice to the defendant. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).
If the offenses charged are of the same or similar character or are based on the same act or transaction, the offenses may be joined in one trial. The right to separate trials is statutory and depends upon a showing that prejudice will result from a joint trial. The defendant bears the burden of proving that prejudice will result from a joint trial. State v. Evans, 235 Neb. 575, 456 N.W.2d 739 (1990).
Pursuant to subsections (2) and (3) of this section, two or more defendants may be tried together. There is no constitutional right to a separate trial, and a separate trial will only be granted upon a showing of prejudice. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).
The trial court's ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed in the absence of an abuse of discretion. The right to separate trials is statutory and depends upon a showing that prejudice will result from a joint trial. The defendant bears the burden of proving that prejudice will result from a joint trial. State v. Andersen, 232 Neb. 187, 440 N.W.2d 203 (1989).
The right to a separate trial is statutory, and depends upon a showing that prejudice will result from a joint trial. The burden is on the party challenging the joint trial to demonstrate how and in what manner he or she was prejudiced. State v. Clark, 228 Neb. 599, 423 N.W.2d 471 (1988).
Joinder of criminal defendants for trial in a manner inconsistent with this section is prejudicial per se, and severance is not a matter of discretion but a matter of right. State v. Lee, 227 Neb. 277, 417 N.W.2d 26 (1987).
Even where prosecutions are otherwise properly consolidated for trial, court may grant separate trials upon showing prejudice will result from joint trial. State v. Pope, 192 Neb. 755, 224 N.W.2d 521 (1974).
Right to separate trial depends upon showing that prejudice will result from joint trial. State v. Clark, 189 Neb. 109, 201 N.W.2d 205 (1972); State v. Adams, 181 Neb. 75, 147 N.W.2d 144 (1966); State v. Erving, 180 Neb. 824, 146 N.W.2d 216 (1966).
There is no constitutional right to a separate trial. State v. Clark, 189 Neb. 109, 201 N.W.2d 205 (1972).
Defendants challenging a joint trial must affirmatively demonstrate that the joint trial has prejudiced their individual rights. State v. Rice, 188 Neb. 728, 199 N.W.2d 480 (1972).
When the offenses charged are of the same or similar character or are based on the same act or transaction or on connected acts, they may be joined. If it appears that such joinder would prejudice defendant, the court may order an election for separate trials of the counts. State v. Rodgers, 186 Neb. 633, 185 N.W.2d 448 (1971).
Severance, under this section, is not a matter of right. State v. Foster, 183 Neb. 247, 159 N.W.2d 561 (1968).
Under 1957 amendment to this section, jointly charged defendants are not entitled to a separate trial as a matter of right. State v. Cook, 182 Neb. 684, 157 N.W.2d 151 (1968).
Right to separate trial is granted only to persons charged with felony and not to those jointly charged with misdemeanor. Nash v. State, 110 Neb. 712, 194 N.W. 869 (1923).
One, jointly indicted with others for a felony, is entitled to separate trial as a matter of right, if request is made in season. Reed v. State, 93 Neb. 163, 139 N.W. 1015 (1913).
Whether separate trials are required depends upon a defendant's showing that prejudice will result from a joint trial. State v. Dandridge, 1 Neb. App. 786, 511 N.W.2d 527 (1993).
3. Motion for separate trial
A defendant appealing the denial of a motion to sever has the burden to show compelling, specific, and actual prejudice. State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020).
There is no error under either subsection (1) or (3) of this section if joinder was not prejudicial, and a denial of a motion to sever will be reversed only if clear prejudice and an abuse of discretion are shown. State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020).
A motion for a separate trial is addressed to the sound discretion of the trial court, and its ruling on such motion will not be disturbed on appeal absent a showing that the court abused its discretion. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
Because Fed. R. Crim. P. 14(a) is the federal equivalent of subsection (3) of this section, Nebraska courts look to federal cases for guidance in determining whether a severance should be granted. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
Severance is not a matter of right and a ruling of the trial court with regard thereto will not be disturbed in absence of showing of prejudice. State v. Nance, 197 Neb. 95, 246 N.W.2d 868 (1976).
A motion for separate trial in a criminal case is addressed to the sound discretion of the trial court. State v. Hall, 176 Neb. 295, 125 N.W.2d 918 (1964).
Motion for separate trial is addressed to sound discretion of trial court, and ruling thereon will not be disturbed in absence of abuse of discretion. State v. Brown, 174 Neb. 387, 118 N.W.2d 328 (1962).
Motion may be made either by prisoner or state and objection to severance is too late after jury is empaneled. Metz v. State, 46 Neb. 547, 65 N.W. 190 (1895).
4. Miscellaneous
A motion to revoke probation is not a criminal proceeding, and this section is not applicable. State v. Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008).
When issues of prejudicial joinder and prejudicial failure to sever are not before the trial court, defendant cannot raise these issues on appeal. State v. Vance, 240 Neb. 794, 484 N.W.2d 453 (1992).
Joinder is not prejudicial error where evidence relating to both offenses would be admissible in a trial of either offense separately. State v. Porter, 235 Neb. 476, 455 N.W.2d 787 (1990).
Separate offenses must be set out in separate counts in an information, but failure is cured by verdict when no objection was made. State v. French, 195 Neb. 88, 236 N.W.2d 832 (1975).
Requirement of showing prejudice met where confession of codefendant implicating appellant used in joint trial and both defendants were represented by same counsel. State v. Montgomery, 182 Neb. 737, 157 N.W.2d 196 (1968).
Court may refuse to allow prisoner's codefendant to be present at trial. Evidence is not inadmissible because it also tends to establish guilt of codefendant. Krens v. State, 75 Neb. 294, 106 N.W. 27 (1905).
Admission of extra-judicial confessions of codefendants found to be prejudicial and violative of defendant's right of cross-examination. Davis v. Sigler, 415 F.2d 1159 (8th Cir. 1969).
29-2003.
Joint indictment; special venire; when required; how drawn.When two or more persons have been charged together in the same indictment or information with a crime, and one or more have demanded a separate trial and had the same, and when the court is satisfied by reason of the same evidence being required in the further trial of parties to the same indictment or information, that the petit jurors from the jury panel and bystanders are incompetent, because of having heard the evidence, to sit in further causes in the same indictment or information, then the court may require the jury commissioner to draw in the same manner as described in section 25-1656 such number of names as the court may direct as a separate jury panel from which a jury may be selected, which panel shall be notified and summoned for the day and hour as ordered by the court. The jurors whose names are so drawn shall be summoned to forthwith appear before the court, and, after having been examined, such as are found qualified and have no lawful excuse for not serving as jurors shall constitute a special venire from which the court shall proceed to have a jury impaneled for the trial of the cause. The court may repeat the exercise of this power until all the parties charged in the same indictment or information have been tried.
Source:Laws 1881, c. 34, § 1, p. 213; R.S.1913, § 9106; C.S.1922, § 10131; C.S.1929, § 29-2003; R.S.1943, § 29-2003;
Laws 2020, LB387, § 42.
Annotations
If several juries are picked at one time from a single jury panel for a series of trials, examination must be allowed if requested for good reason in subsequent trials in the series to determine if any jurors should be excused for cause. State v. Myers, 190 Neb. 466, 209 N.W.2d 345 (1973).
Where separate trials are held on joint indictment or information for commission of single offense, jurors who sat in trial of one defendant are disqualified to sit in trial of others. Seaton v. State, 106 Neb. 833, 184 N.W. 890 (1921).
Section applies only when two or more persons are charged in the same indictment and one has had a separate trial. Koenigstein v. State, 101 Neb. 229, 162 N.W. 879 (1917).
Provisions of this section are not exclusive. Aabel v. State, 86 Neb. 711, 126 N.W. 316 (1910); Barber v. State, 75 Neb. 543, 106 N.W. 423 (1906); Barney v. State, 49 Neb. 515, 68 N.W. 636 (1896).
29-2004.
Jury; how drawn and selected; alternate jurors.(1) All parties may stipulate that the jury may be selected up to thirty-one days prior to the date of trial. The stipulation must be unanimous among all parties and evidenced by a joint stipulation to the county court.
(2) In all cases, except as may be otherwise expressly provided, the accused shall be tried by a jury drawn, summoned, and impaneled according to provisions of the code of civil procedure, except that whenever in the opinion of the court the trial is likely to be a protracted one, the court may, immediately after the jury is impaneled and sworn, direct the calling of additional jurors, to be known as alternate jurors.
(3)(a) The court may impanel up to six alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties.
(b) Alternate jurors must have the same qualifications and shall be selected and sworn in the same manner as any other juror.
(c) Unless a party objects, alternate jurors shall replace jurors in the same sequence in which the alternates were selected. An alternate juror who replaces a juror has the same authority as the other jurors.
(4) The alternate jurors shall take the proper oath or affirmation and shall be seated near the regular jurors with equal facilities for seeing and hearing the proceedings in the cause, and shall attend at all times upon the trial of the cause in company with the regular jurors. They shall obey all orders and admonitions of the court, and if the regular jurors are ordered to be kept in the custody of an officer during the trial of the cause, the alternate jurors shall also be kept with the other jurors.
(5)(a) The court may retain alternate jurors after the jury retires to deliberate, except that if an information charging a violation of section 28-303 and in which the death penalty is sought contains a notice of aggravation, the alternate jurors shall be retained as provided in section 29-2520.
(b) The court shall ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged. If an alternate replaces a juror after deliberations have begun, the court shall instruct the jury to begin its deliberations anew.
(6)(a) Each party is entitled to the following number of additional peremptory challenges to prospective alternate jurors:
(i) One additional peremptory challenge is permitted when one or two alternates are impaneled;
(ii) Two additional peremptory challenges are permitted when three or four alternates are impaneled; and
(iii) Three additional peremptory challenges are permitted when five or six alternates are impaneled.
(b) The additional peremptory challenges provided in this subsection may only be used to remove alternate jurors.
(7) In construing and applying this section, courts shall consider Federal Rule of Criminal Procedure 24 and case law interpreting such rule.
Source:G.S.1873, c. 58, § 466, p. 825; R.S.1913, § 9107; C.S.1922, § 10132; C.S.1929, § 29-2004; Laws 1933, c. 38, § 1, p. 242; C.S.Supp.,1941, § 29-2004; R.S.1943, § 29-2004;
Laws 1996, LB 1249, § 2; Laws 2002, Third Spec. Sess., LB 1, § 6; Laws 2015, LB268, § 14; Referendum 2016, No. 426;
Laws 2020, LB881, § 20.
Cross References
Change of venue, criminal case pending in county with population of four thousand or less without adequate facilities for jury trials, see section 25-412.01.
For drawing and selection of jurors, see Jury Selection Act, section 25-1644.
Annotations
1. Discharge
2. Miscellaneous
1. Discharge
A court may discharge a juror for cause after it learned that the defendant's affiliate attempted to talk to the juror during the trial and the juror provided conflicting testimony when questioned about the event. State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
In a trial for first degree sexual assault, the trial court had discretion to discharge a juror following the close of evidence given the following facts: (1) the juror, on the first day of trial after the jury was sworn, alerted the court of his reluctance to serve on the jury given his upbringing and criminal history; (2) the court had questioned the juror and determined that the juror could remain impartial; (3) the court, after giving its instructions, sua sponte, raised concerns about the juror's lack of attentiveness during trial; and (4) the juror's criminal record, which the State proffered in support of its motion for discharge, indicated that the juror had misrepresented his criminal history in the juror qualification form. State v. Huff, 298 Neb. 522, 905 N.W.2d 59 (2017).
This section, governing the discharge of a juror after the jury is sworn, and not section 29-2006, which governs the disqualification of a juror for cause before the jury is sworn, governed the State's motion to "strike" the juror for cause after trial began. State v. Huff, 298 Neb. 522, 905 N.W.2d 59 (2017).
Under this section, a court may discharge a regular juror because of sickness and replace him or her with an alternate juror. State v. Hilding, 278 Neb. 115, 769 N.W.2d 326 (2009).
In a trial for attempted murder, assault, and other crimes, a juror who was mistakenly seated on the jury despite having been stricken by the State was a "regular juror," within the meaning of this section, and thus, the juror could be replaced by an alternate when the mistake was discovered. State v. Aguilar, 268 Neb. 411, 683 N.W.2d 349 (2004).
Under this section, a trial court may replace a juror with an alternate juror after finding that the original juror could not be fair and impartial. State v. Smith, 13 Neb. App. 404, 693 N.W.2d 587 (2005).
2. Miscellaneous
On the State's motion at the close of evidence to strike a seated juror for cause, in a prosecution for first degree sexual assault, the State had the burden to show that the challenged juror was biased, was engaged in misconduct, or was otherwise unable to continue to serve. State v. Huff, 298 Neb. 522, 905 N.W.2d 59 (2017).
When a defendant, through diligence, is able to discover a reason to challenge a juror, the objection to the juror must be made at the time of voir dire. State v. Huff, 298 Neb. 522, 905 N.W.2d 59 (2017).
Verdict of jury will be set aside where evidence is clearly insufficient to sustain it. Prichard v. State, 135 Neb. 522, 282 N.W. 529 (1938).
Accused cannot waive right to trial by jury. Michaelson v. Beemer, 72 Neb. 761, 101 N.W. 1007 (1904).
Challenge to array or motion to quash panel must be in writing and should point out grounds relied upon. Strong v. State, 63 Neb. 440, 88 N.W. 772 (1902).
Jurors may be summoned for trial of criminal case when no regular panel is present. Carrall v. State, 53 Neb. 431, 73 N.W. 939 (1898).
In criminal trials, jurors are not judges of the law. Parrish v. State, 14 Neb. 60, 15 N.W. 357 (1883).
29-2005.
Peremptory challenges.Except as otherwise provided in section 29-2004 for peremptory challenges to alternate jurors:
(1) Every person arraigned for any crime punishable with death, or imprisonment for life, shall be admitted on his or her trial to a peremptory challenge of twelve jurors, and no more;
(2) Every person arraigned for any offense that may be punishable by imprisonment for a term exceeding eighteen months and less than life, shall be admitted to a peremptory challenge of six jurors;
(3) In all other criminal trials, the defendant shall be allowed a peremptory challenge of three jurors; and
(4) The attorney prosecuting on behalf of the state shall be admitted to a peremptory challenge of twelve jurors in all cases when the offense is punishable with death or imprisonment for life, six jurors when the offense is punishable by imprisonment for a term exceeding eighteen months and less than life, and three jurors in all other cases.
Source:G.S.1873, c. 58, § 467, p. 826; R.S.1913, § 9108; Laws 1915, c. 166, § 1, p. 337; C.S.1922, § 10133; C.S.1929, § 29-2005; Laws 1933, c. 38, § 2, p. 243; C.S.Supp.,1941, § 29-2005; R.S.1943, § 29-2005;
Laws 1981, LB 213, § 1; Laws 2015, LB268, § 15; Referendum 2016, No. 426;
Laws 2020, LB881, § 21.
Annotations
Depriving a defendant in a criminal proceeding of the peremptory challenges to which he or she is statutorily entitled is structural error. State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005).
Where two or more offenses are properly joined, a trial court does not err in limiting the defendant to the number of peremptory challenges statutorily available for the most serious of the offenses, and a defendant is not entitled to additional peremptory challenges because the indictment charges separate offenses in separate counts. State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992).
Where imprisonment authorized was for a period of one year, only three peremptory challenges could be demanded. State v. Abboud, 181 Neb. 84, 147 N.W.2d 152 (1966).
Counsel have right to put pertinent questions on voir dire examination of jurors to aid in the exercise of right of peremptory challenge. Oden v. State, 166 Neb. 729, 90 N.W.2d 356 (1958).
Order of exercise of peremptory challenges rested in discretion of trial court. Callies v. State, 157 Neb. 640, 61 N.W.2d 370 (1953); Sherrick v. State, 157 Neb. 623, 61 N.W.2d 358 (1953).
Where both state and defendant waived peremptory challenge, objection to disqualification of juror who had read newspaper article was waived. Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689 (1951).
Peremptory challenges are not to be exercised until jurors have been passed for cause. Fetty v. State, 119 Neb. 619, 230 N.W. 440 (1930); Mathes v. State, 107 Neb. 212, 185 N.W. 425 (1921); Rutherford v. State, 32 Neb. 714, 49 N.W. 701 (1891).
Order in which challenges shall be made is left to sound discretion of trial court. Johnson v. State, 88 Neb. 565, 130 N.W. 282 (1911); Gravely v. State, 45 Neb. 878, 64 N.W. 452 (1895).
Failure to exercise right of peremptory challenge is waiver of any disqualification then known to exist. Morgan v. State, 51 Neb. 672, 71 N.W. 788 (1897); Curran v. Percival, 21 Neb. 434, 32 N.W. 213 (1887).
29-2006.
Challenges for cause.The following shall be good causes for challenge to any person called as a juror or alternate juror, on the trial of any indictment: (1) That he was a member of the grand jury which found the indictment; (2) that he has formed or expressed an opinion as to the guilt or innocence of the accused; Provided, if a juror or alternate juror shall state that he has formed or expressed an opinion as to the guilt or innocence of the accused, the court shall thereupon proceed to examine, on oath, such juror or alternate juror as to the ground of such opinion; and if it shall appear to have been founded upon reading newspaper statements, communications, comments or reports, or upon rumor or hearsay, and not upon conversations with witnesses of the transactions or reading reports of their testimony or hearing them testify, and the juror or alternate juror shall say on oath that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that such juror or alternate juror is impartial and will render such verdict, may, in its discretion, admit such juror or alternate juror as competent to serve in such case; (3) in indictments for an offense the punishment whereof is capital, that his opinions are such as to preclude him from finding the accused guilty of an offense punishable with death; (4) that he is a relation within the fifth degree to the person alleged to be injured or attempted to be injured, or to the person on whose complaint the prosecution was instituted, or to the defendant; (5) that he has served on the petit jury which was sworn in the same cause against the same defendant and which jury either rendered a verdict which was set aside or was discharged, after hearing the evidence; (6) that he has served as a juror in a civil case brought against the defendant for the same act; (7) that he has been in good faith subpoenaed as a witness in the case; (8) that he is a habitual drunkard; (9) the same challenges shall be allowed in criminal prosecutions that are allowed to parties in civil cases.
Source:G.S.1873, c. 58, § 468, p. 826; R.S.1913, § 9109; C.S.1922, § 10134; C.S.1929, § 29-2006; Laws 1933, c. 38, § 3, p. 243; C.S.Supp.,1941, § 29-2006; R.S.1943, § 29-2006;
Laws 2015, LB268, § 16; Referendum 2016, No. 426.
Note: The changes made to section 29-2006 by Laws 2015, LB 268, section 16, have been omitted because of the vote on the referendum at the November 2016 general election.
Annotations
1. Capital punishment
2. Opinion of juror
3. Relation to defendant
4. Other grounds
5. Miscellaneous
1. Capital punishment
A court cannot determine whether a juror should be challenged for cause in accordance with subsection (3) of this section without advising a juror of the possible punishments and asking the juror his or her opinion on capital punishment. State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010).
Subsection (3) of this section allows courts to question jurors about their beliefs regarding the death penalty. State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010).
In a capital case, it is entirely permissible to exclude from jury service venirepersons whose views on capital punishment are such as to prevent or substantially impair their ability to impartially apply the law to the evidence. State v. Bradley, 236 Neb. 371, 461 N.W.2d 524 (1990).
Pursuant to subsection (3) of this section, it is good cause to challenge one called for jury service in a capital case if his or her opinions are such as to prevent "finding the accused guilty"; thus, the venire may be examined to determine whether any juror has conscientious scruples against capital punishment such as to prevent or substantially impair the performance of his or her duties as a juror. State v. Hankins, 232 Neb. 608, 441 N.W.2d 854 (1989).
A venireperson whose views on capital punishment are such as to prevent or substantially impair the performance of his or her duties as a juror may, under this provision, be constitutionally excused from jury service in a capital case. State v. Bird Head, 225 Neb. 822, 408 N.W.2d 309 (1987).
A juror who opposes the death penalty may still be eligible to serve as a juror in a capital case as long as such juror is able and does swear to decide guilt or innocence on the evidence and law as given in the jury instructions. A juror who has indicated an inability to fairly and impartially determine guilt by refusing to subordinate his or her own personal views and obey the law of the state must be excused for cause. State v. Benzel, 220 Neb. 466, 370 N.W.2d 501 (1985).
If juror has conscientious scruples against inflicting death penalty in murder case, he may be excused on challenge by state. Sharp v. State, 117 Neb. 304, 220 N.W. 292 (1928).
Statement of juror, on trial of defendant charged with murder in first degree, that he would not join in verdict of guilty with death penalty, renders him incompetent. Johnson v. State, 88 Neb. 565, 130 N.W. 282 (1911).
Right of person charged with capital offense to examine jurors on competency should not be unreasonably obstructed. Wilson v. State, 87 Neb. 638, 128 N.W. 38 (1910).
State's attorney may ask juror on examination if he has conscientious scruples against capital punishment. Taylor v. State, 86 Neb. 795, 126 N.W. 752 (1910).
Mere sentimental feelings against death punishment is not sufficient; juror must be so prejudiced against it that opinion would preclude him from finding defendant guilty. Haddix v. State, 76 Neb. 369, 107 N.W. 781 (1906); Rhea v. State, 63 Neb. 461, 88 N.W. 789 (1902).
Provision making conscientious scruples against death penalty a ground of challenge for cause was not repealed by amendment of 1893, conferring on jury discretion to fix punishment for first degree murder at life imprisonment instead of death. Hill v. State, 42 Neb. 503, 60 N.W. 916 (1894).
Statement of juror that his convictions are such as would preclude conviction of guilty on circumstantial evidence, when punishment is death, is ground for challenge. St. Louis v. State, 8 Neb. 405, 1 N.W. 371 (1879).
2. Opinion of juror
Under subdivision (2) of this section, only if the juror's opinion was formed based upon conversations with witnesses of the transactions or reading reports of their testimony or hearing them testify is dismissal of the juror for cause mandatory. State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009).
The district court did not err in retaining jurors who expressed opinions of guilt, which were not founded on witness testimony, and who testified they could render an impartial verdict. State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007).
Subsection (3) of this section allows a juror to be successfully challenged for cause on the basis of his or her opinions regarding the death penalty only in those cases in which those opinions would prevent the juror from impartially weighing the evidence and reaching a conclusion as to the defendant's guilt or innocence on the basis of the evidence presented. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).
Opinion of juror based on reading newspapers did not disqualify him. Fugate v. State, 169 Neb. 420, 99 N.W.2d 868 (1959).
Voir dire examination furnishes a defendant ample opportunity to establish whether prospective jurors have been prejudiced by newspaper articles. Kitts v. State, 153 Neb. 784, 46 N.W.2d 158 (1951).
Opinion based upon newspaper reports does not afford cause for challenge, where it is shown that same will not interfere with juror in rendering fair and impartial verdict upon evidence, under instructions of the court. Ringer v. State, 114 Neb. 404, 207 N.W. 928 (1926); King v. State, 108 Neb. 428, 187 N.W. 934 (1922); Bridges v. State, 80 Neb. 91, 113 N.W. 1048 (1907).
Juror, having formed opinion, is not disqualified in view of statement that he would disregard opinion and return fair and impartial verdict. King v. State, 108 Neb. 428, 187 N.W. 934 (1922).
Where juror answers that evidence is necessary to remove opinion, such fact will not disqualify him, if opinion formed, and he is otherwise qualified, in accordance with statute. Whitcomb v. State, 102 Neb. 236, 166 N.W. 553 (1918).
Challenge for cause, where juror has formed opinion founded on reading testimony of witnesses, should be sustained; statute is mandatory. Flege v. State, 93 Neb. 610, 142 N.W. 276 (1913).
Mere fact that juror, otherwise competent, had feeling that white race was superior to colored race, of which defendant was one, did not render him incompetent. Johnson v. State, 88 Neb. 565, 130 N.W. 282 (1911).
Hypothetical opinion, based solely on rumor and newspaper reports, may not disqualify. Barker v. State, 73 Neb. 469, 103 N.W. 71 (1905); Jahnke v. State, 68 Neb. 154, 94 N.W. 158 (1903), reversed on rehearing, 68 Neb. 181, 104 N.W. 154 (1905); Rottman v. State, 63 Neb. 648, 88 N.W. 857 (1902); Ward v. State, 58 Neb. 719, 79 N.W. 725 (1899).
Juror is incompetent when he says it will require some evidence to remove his opinion, though he may also state that he can render impartial verdict under law and evidence. Owens v. State, 32 Neb. 167, 49 N.W. 226 (1891).
Where juror answered he had no bias or prejudice against defendant, it was not error to sustain objections to other questions seeking to elicit remarks made about defendant. Gandy v. State, 27 Neb. 707, 43 N.W. 747, 44 N.W. 108 (1889).
Juror, who admits having opinion, and does not state that he could render fair and impartial verdict, is incompetent. Thurman v. State, 27 Neb. 628, 43 N.W. 404 (1889).
To render a juror incompetent in a criminal case on the ground of an opinion formed or expressed, it must appear that opinion was in reference to guilt or innocence of defendant. Fillion v. State, 5 Neb. 351 (1877).
If venireman has formed opinion from reading testimony of witnesses, he is incompetent, though he swears to be able, notwithstanding, to render an impartial verdict on the law and evidence. Smith v. State, 5 Neb. 181 (1876).
3. Relation to defendant
Under subdivision (2) of this section, the mere fact that a prospective juror is personally acquainted with the victim or the victim's family does not automatically disqualify a person from sitting on a criminal jury. State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009).
In prosecution for forging note payable to a bank, challenge to juror on ground that his wife and brother were depositors in bank was properly overruled. Flannigan v. State, 127 Neb. 640, 256 N.W. 321 (1934).
Juror, first cousin to accused, was properly excused as being a relation within fifth degree. Marion v. State, 20 Neb. 233, 29 N.W. 911 (1886).
4. Other grounds
Counsel has right to put pertinent questions to prospective jurors to ascertain if there is ground for challenge for cause. Oden v. State, 166 Neb. 729, 90 N.W.2d 356 (1958).
This section furnishes ample opportunity to establish whether prospective jurors have been prejudiced by reading newspaper article. Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689 (1951).
Where competency of juror is challenged for first time after conviction, on ground that he had been convicted of felony and served term in penitentiary, such objection was waived. Reed v. State, 75 Neb. 509, 106 N.W. 649 (1906); Turley v. State, 74 Neb. 471, 104 N.W. 934 (1905).
Court must be satisfied that juror is impartial; that, notwithstanding his opinion, he will render impartial verdict upon law and evidence. Lucas v. State, 75 Neb. 11, 105 N.W. 976 (1905).
It is good cause for challenge that juror has served as juror in same court within two years. Coil v. State, 62 Neb. 15, 86 N.W. 925 (1901).
Juror should be excused if court discovers least symptom of prejudice, though his formal answers bring him within letter of statutory qualification. Cowan v. State, 22 Neb. 519, 35 N.W. 405 (1887).
5. Miscellaneous
Section 29-2004, governing the discharge of a juror after the jury is sworn, and not this section, which governs the disqualification of a juror for cause before the jury is sworn, governed the State's motion to "strike" the juror for cause after trial began. State v. Huff, 298 Neb. 522, 905 N.W.2d 59 (2017).
Subsection (3) of this section does not violate either the 6th or the 14th Amendment to the U.S. Constitution. Subsection (3) of this section does not violate Article I, section 3, of the Nebraska Constitution. Subsection (3) of this section fully comports with the state constitutional provisions regarding impartial juries and due process found in Article I, sections 6 and 11. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).
Failure to insist on a ruling on a challenge for cause waives error in the denial of that challenge. State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992).
Subsection (3) of this section held constitutional and serves to ensure that the petit jury is impartial. State v. Burchett, 224 Neb. 444, 399 N.W.2d 258 (1986).
Death-qualified jury held constitutional. State v. Peery, 223 Neb. 556, 391 N.W.2d 566 (1986).
This section does not violate the sixth or fourteenth amendment to the U.S. Constitution. State v. Rust, 223 Neb. 150, 388 N.W.2d 483 (1986).
If several juries are picked at one time from a single jury panel for a series of trials, examination must be allowed if requested for good reason in subsequent trials in the series to determine if any jurors should be excused for cause. State v. Myers, 190 Neb. 466, 209 N.W.2d 345 (1973).
Opportunity for prejudice or disqualification of juror is not sufficient to raise a presumption that they exist. Medley v. State, 156 Neb. 25, 54 N.W.2d 233 (1952); Fisher v. State, 154 Neb. 166, 47 N.W.2d 349 (1951).
Question of competency of veniremen to sit in trial of criminal cannot be raised by motion for continuance. Seaton v. State, 106 Neb. 833, 184 N.W. 890 (1921).
Error cannot be predicated on overruling challenge for cause, complaining party not having exhausted peremptory challenges. Kennison v. State, 83 Neb. 391, 119 N.W. 768 (1909); Brinegar v. State, 82 Neb. 558, 118 N.W. 475 (1908).
Proceedings relative to impaneling jury, to be reviewable, should be preserved by bill of exceptions. Shumway v. State, 82 Neb. 152, 117 N.W. 407 (1908), opinion modified in 82 Neb. 165, 119 N.W. 517 (1909).
If examination considered as whole, does not show incompetency, challenge is properly overruled. Keeler v. State, 73 Neb. 441, 103 N.W. 64 (1905).
Failure to interrogate juror as to residence is waiver of that objection. Hickey v. State, 12 Neb. 490, 11 N.W. 744 (1882).
29-2007.
Challenges for cause; how tried.All challenges for cause shall be tried by the court, on the oath of the person challenged, or on other evidence, and such challenge shall be made before the jury is sworn, and not afterward.
Source:G.S.1873, c. 58, § 469, p. 827; R.S.1913, § 9110; C.S.1922, § 10135; C.S.1929, § 29-2007; R.S.1943, § 29-2007.
Annotations
This section does not bar examination and challenge for cause in subsequent trials in series even after jury is sworn if several juries are picked at one time from a single jury panel for a series of trials. State v. Myers, 190 Neb. 466, 209 N.W.2d 345 (1973).
All challenges for cause are decided by court. Rakes v. State, 158 Neb. 55, 62 N.W.2d 273 (1954).
In impaneling a jury, all challenges for cause are tried to the court. Lee v. State, 147 Neb. 333, 23 N.W.2d 316 (1946).
If cause of challenge is denied by juror on voir dire after accused's peremptory challenges are exhausted, accused has right to have issue tried and witnesses examined. Trobough v. State, 119 Neb. 128, 227 N.W. 443 (1929).
Decision of trial judge being based on consideration of all facts developed during examination, including appearance and actions of juror, will not be reversed unless clearly wrong. Bemis v. City of Omaha, 81 Neb. 352, 116 N.W. 31 (1908); Ward v. State, 58 Neb. 719, 79 N.W. 725 (1899).
Evidence relating to challenges to jurors cannot be considered unless settled and allowed by bill of exceptions. West v. State, 63 Neb. 257, 88 N.W. 503 (1901).
29-2008.
Defendants tried together; number of peremptory challenges allowed.If two or more persons be put on trial at the same time, each must be allowed his separate peremptory challenge, and in such cases the attorney prosecuting on behalf of the state shall be allowed such peremptory challenges for each of such defendants as are allowed by law.
Source:G.S.1873, c. 58, § 470, p. 827; R.S.1913, § 9111; Laws 1915, c. 167, § 1, p. 338; C.S.1922, § 10136; C.S.1929, § 29-2008; R.S.1943, § 29-2008.
Annotations
When defendants, being tried together, do not demand full number of challenges allowed, their rights thereto are waived. Nash v. State, 110 Neb. 712, 194 N.W. 869 (1923).
29-2009.
Jurors; oath; form.When all challenges have been made, the following oath shall be administered: You shall well and truly try, and true deliverance make, between the State of Nebraska and the prisoner at the bar (giving his name), so help you God.
Source:G.S.1873, c. 58, § 471, p. 827; R.S.1913, § 9112; C.S.1922, § 10137; C.S.1929, § 29-2009; R.S.1943, § 29-2009.
Annotations
Trial court's journal entry reciting jury was sworn imports verity absent contrary proof. State v. Martin, 198 Neb. 811, 255 N.W.2d 844 (1977).
It is the duty of jury to endeavor to agree upon verdict; agreement by them to evade such duty is violation of oath. Green v. State, 10 Neb. 102, 4 N.W. 422 (1880).
Where record states that jury was sworn "to well and truly try and true deliverance make upon the issue joined between the parties," it is presumed that oath was administered in statutory form. Smith v. State, 4 Neb. 277 (1876).
29-2010.
Juror; affirmation; form.Any juror shall be allowed to make affirmation, and the words this you do as you shall answer under the pains and penalties of perjury shall be substituted instead of the words so help you God.
Source:G.S.1873, c. 58, § 472, p. 827; R.S.1913, § 9113; C.S.1922, § 10138; C.S.1929, § 29-2010; R.S.1943, § 29-2010.
29-2011.
Jurors; permitted to take notes; use; destruction.Jurors shall be permitted, but not required, to take notes. The notes may be used during the jury's deliberations and shall be treated as confidential between the juror making them and the other jurors. The trial judge shall ensure the confidentiality of the notes during the course of the trial and the jury's deliberations and shall instruct the bailiff to immediately mutilate and destroy such notes upon return of the verdict.
29-2011.01.
Repealed. Laws 1982, LB 525, § 3.
29-2011.02.
Witnesses; refusal to testify or provide information; court order for testimony or information; limitation on use.Whenever a witness refuses, on the basis of the privilege against self-incrimination, to testify or to provide other information in a criminal proceeding or investigation before a court, a grand jury, the Auditor of Public Accounts, the Legislative Council, or a standing committee or a special legislative investigative or oversight committee of the Legislature, the court, on motion of the county attorney, other prosecuting attorney, Auditor of Public Accounts, chairperson of the Executive Board of the Legislative Council, or chairperson of a standing or special committee of the Legislature, may order the witness to testify or to provide other information. The witness may not refuse to comply with such an order of the court on the basis of the privilege against self-incrimination, but no testimony or other information compelled under the court's order or any information directly or indirectly derived from such testimony or other information may be used against the witness in any criminal case except in a prosecution for perjury, giving a false statement, or failing to comply with the order of the court.
Cross References
Legislative Council, committee investigations, see sections 50-404 to 50-409.
Annotations
A court is not obligated under this section to notify a defendant when the State offers a witness immunity. State
v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
The language of this section, and the case law interpreting it, provides that because the Legislature has given
courts the power to immunize a witness solely upon the request of the prosecutor, it is not a power the court can
exercise upon the request of the defendant or upon its own initiative. State v. Lierman, 305 Neb. 289, 940 N.W.2d
529 (2020).
This section does not require that the invocation of privilege be done before a jury in order for immunity to be granted. State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).
Trial courts in Nebraska do not have inherent authority to confer immunity. In a criminal proceeding, a court's authority to grant immunity to a witness who refuses to testify on the basis of the privilege against self-incrimination comes from this section. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
This section does not authorize a grant of immunity to any witness except upon the motion of the prosecuting attorney. State v. Starks, 229 Neb. 482, 427 N.W.2d 297 (1988).
Where a defendant has testified in a previous criminal case under a lawful grant of immunity, the sentencing court in a subsequent criminal case cannot consider such testimony or any information directly or indirectly derived from it in determining whether a death sentence should be imposed under the provisions of section 29-2523 and related statutes. State v. Jones, 213 Neb. 1, 328 N.W.2d 166 (1982).
Absent a motion from the prosecuting attorney, a trial court does not have the authority to grant immunity to a witness under this section. State v. Sanchez-Lahora, 9 Neb. App. 621, 616 N.W.2d 810 (2000).
29-2011.03.
Order for testimony or information of witness; request; when.The county attorney, other prosecuting attorney, Auditor of Public Accounts, or chairperson of the Executive Board of the Legislative Council or chairperson of a standing committee or a special legislative investigative or oversight committee of the Legislature upon an affirmative vote of a majority of the board or committee, may request an order pursuant to section 29-2011.02 when in such person's judgment:
(1) The testimony or other information from such individual may be necessary to the public interest; and
(2) Such individual has refused or is likely to refuse to testify or provide other information on the basis of the privilege against self-incrimination.
29-2012.
Joint defendants; discharge of one or more; when authorized; effect.When two or more persons shall be indicted together, the court may, at any time before the defendant has gone into his defense, direct any one of the defendants to be discharged that he may be a witness for the state. An accused may, also, when there is not sufficient evidence to put him upon his defense, be discharged by the court; or, if not discharged by the court, shall be entitled to the immediate verdict of the jury, for the purpose of giving evidence for others accused with him. Such order of discharge in either case shall be a bar to another prosecution for the same offense.
Source:G.S.1873, c. 58, § 474, p. 827; R.S.1913, § 9115; C.S.1922, § 10140; C.S.1929, § 29-2012; R.S.1943, § 29-2012.
Annotations
When separate trials are awarded to parties jointly indicted, each is a competent witness for the state upon the trial of other, without being first acquitted, and without entry of nolle prosequi. Carroll v. State, 5 Neb. 31 (1876).
29-2013.
Repealed. Laws 1989, LB 443,§2.
29-2014.
Conspiracy; overt acts; allegations required; proof.In trials for conspiracy, in cases where an overt act is required by law to consummate the offense, no conviction shall be had unless one or more overt acts be expressly alleged in the indictment, nor unless one or more of the acts so alleged be proved on trial; but other overt acts not alleged in the indictment may be given in evidence on the part of the prosecution.
Source:G.S.1873, c. 58, § 476, p. 828; R.S.1913, § 9117; C.S.1922, § 10142; C.S.1929, § 29-2014; R.S.1943, § 29-2014.
Annotations
An information charging conspiracy to commit robbery satisfied the overt act requirement by alleging robbery as both the object of conspiracy and the overt act committed in pursuance thereof. State v. Davis, 310 Neb. 865, 969 N.W.2d 861 (2022).
In trials for conspiracy where an overt act is required by law to consummate the offense, a specific overt act must be alleged. An allegation that a person committed an overt act is not adequate. State v. Marco, 230 Neb. 355, 432 N.W.2d 1 (1988).
Doing of overt act by one or more of the conspirators is essential to conviction on charge of conspiracy. Beyl v. State, 165 Neb. 260, 85 N.W.2d 653 (1957).
An overt act effecting the object of a conspiracy is a necessary element of conspiracy. Platt v. State, 143 Neb. 131, 8 N.W.2d 849 (1943).
Mere tacit understanding to work to common unlawful purpose is all that is essential to guilty combination. Deupree v. Thornton, 97 Neb. 812, 151 N.W. 305 (1915), reversed on rehearing, 98 Neb. 804, 154 N.W. 557 (1915).
Conspiracy cannot be established by admissions alone of coconspirator who is not a party to record. State v. Merchants Bank, 81 Neb. 704, 116 N.W. 667 (1908); O'Brien v. State, 69 Neb. 691, 96 N.W. 649 (1903).
For rules as to proof of conspiracy in civil cases see Harvey v. Harvey, 75 Neb. 557, 106 N.W. 660 (1906); Farley v. Peebles, 50 Neb. 723, 70 N.W. 231 (1897).
29-2015.
Repealed. Laws 1978, LB 748, § 61.
29-2016.
Trial; order of procedure.After the jury has been impaneled and sworn, the trial shall proceed in the following order: (1) The counsel for the state must state the case of the prosecution and may briefly state the evidence by which he expects to sustain it; (2) the defendant or his counsel must then state his defense and may briefly state the evidence he expects to offer in support of it; (3) the state must first produce its evidence; the defendant will then produce his evidence; (4) the state will then be confined to rebutting evidence, unless the court for good reason in furtherance of justice, shall permit it to offer evidence in chief; (5) when the evidence is concluded, either party may request instructions to the jury on the points of law, which shall be given or refused by the court, which instructions shall be reduced to writing if either require it; (6) when the evidence is concluded, unless the case is submitted without argument, the counsel for the state shall commence, the defendant or his counsel follow, and the counsel for the state conclude the argument to the jury; (7) the court after the argument is concluded shall immediately and before proceeding with other business charge the jury, which charge or any charge given after the conclusion of the argument shall be reduced to writing by the court, if either party requests it before the argument to the jury is commenced; and such charge or charges or any other charge or instruction provided for in this section, when so written and given, shall in no case be orally qualified, modified or in any manner explained to the jury by the court; and all written charges and instructions shall be taken by the jury in their retirement and returned with their verdict into court, and shall remain on file with the papers of the case.
Source:G.S.1873, c. 58, § 478, p. 828; R.S.1913, § 9119; C.S.1922, § 10144; C.S.1929, § 29-2016; R.S.1943, § 29-2016.
Annotations
1. Instructions
2. Opening statement
3. Misconduct
4. Admissibility of evidence
5. Procedure
1. Instructions
Defendant may not predicate error on an instruction that is more favorable to him than is required by law. Stump v. State, 132 Neb. 49, 271 N.W. 163 (1937).
Proper time to submit requested instructions is as early in trial as possible, but not later than close of evidence. Whitehall v. Commonwealth Casualty Co., 125 Neb. 16, 248 N.W. 692 (1933).
It is the court's duty, on own motion, to instruct as to general rules of law; instruction desired should be submitted in writing. Osborne v. State, 115 Neb. 65, 211 N.W. 179 (1926).
Examples of instructions on "reasonable doubt" given. Stehr v. State, 92 Neb. 755, 139 N.W. 676 (1913); Brown v. State, 88 Neb. 411, 129 N.W. 545 (1911); Clements v. State, 80 Neb. 313, 114 N.W. 271 (1907); Atkinson v. State, 58 Neb. 356, 78 N.W. 621 (1899); Maxfield v. State, 54 Neb. 44, 74 N.W. 401 (1898); Whitney v. State, 53 Neb. 287, 73 N.W. 696 (1898); Ferguson v. State, 52 Neb. 432, 72 N.W. 590 (1897).
It is not error to refuse requested instruction when substance of it has been given. Graham v. State, 90 Neb. 658, 134 N.W. 249 (1912); Lillie v. State, 72 Neb. 228, 100 N.W. 316 (1904).
Instruction should be applicable to precise question being tried. Flege v. State, 90 Neb. 390, 133 N.W. 431 (1911).
Instructions on burden of proof where defense is insanity discussed. Davis v. State, 90 Neb. 361, 133 N.W. 406 (1911); Knights v. State, 58 Neb. 225, 78 N.W. 508 (1899); Snider v. State, 56 Neb. 309, 76 N.W. 574 (1898).
Where circumstances surrounding homicide are proved, it is error to instruct that malice will be implied from killing. Davis v. State, 90 Neb. 361, 133 N.W. 406 (1911).
Instruction on credibility of informers will not ordinarily apply to a county attorney, sheriff, or his deputy. Keezer v. State, 90 Neb. 238, 133 N.W. 204 (1911).
Erroneous instruction, legal effect of which is practically same as one given on request of defendant, is generally not ground for reversal, unless clearly prejudicial to defendant. Coffman v. State, 89 Neb. 313, 131 N.W. 616 (1911).
Trial court in giving instruction may describe offense in language of statute. Jones v. State, 87 Neb. 390, 127 N.W. 158 (1910).
If court in its instructions purports to copy a section of criminal code, quotation should be correct. Boyer v. State, 84 Neb. 407, 121 N.W. 445 (1909).
If an instruction is given when no testimony sustains it, and prejudice results, new trial will be granted. Parker v. State, 76 Neb. 765, 108 N.W. 121 (1906).
It is duty of court to instruct as to rules of law governing disposition of criminal case whether requested or not. Young v. State, 74 Neb. 346, 104 N.W. 867 (1905); Martin v. State, 67 Neb. 36, 93 N.W. 161 (1903).
Instructions must not conflict, must be construed together, and correctly state law. Higbee v. State, 74 Neb. 331, 104 N.W. 748 (1905); Bartley v. State, 53 Neb. 310, 73 N.W. 744 (1898).
Where jury is not required to fix punishment, court's refusal to instruct as to penalty prescribed, or to permit that question to be argued to jury, is proper. Edwards v. State, 69 Neb. 386, 95 N.W. 1038 (1903).
Instruction on circumstantial evidence approved. Lamb v. State, 69 Neb. 212, 95 N.W. 1050 (1903); Cunningham v. State, 56 Neb. 691, 77 N.W. 60 (1898).
Instructions should be construed as a whole; one having no foundation in evidence is properly refused. Rhea v. State, 63 Neb. 461, 88 N.W. 789 (1902).
Instructions, purporting to cover whole case, which fail to include all elements involved in issue, are erroneous. Dobson v. State, 61 Neb. 584, 85 N.W. 843 (1901); Bergeron v. State, 53 Neb. 752, 74 N.W. 253 (1898).
Instruction which casts burden on defendant to prove defense is erroneous. Howell v. State, 61 Neb. 391, 85 N.W. 289 (1901).
Instruction to jury that oath imposes no obligation to doubt where no doubt would have existed if no oath had been administered, and that they are not at liberty to disbelieve as jurors, if from the evidence they believe as men, was proper. Leisenberg v. State, 60 Neb. 628, 84 N.W. 6 (1900).
Failure to number instructions is not reversible error if not excepted to when charge is given. Kastner v. State, 58 Neb. 767, 79 N.W. 713 (1899).
Instruction as to credibility of witnesses, and refusal to give instruction which would have effect of withdrawing consideration of material evidence, discussed and sustained. Chezem v. State, 56 Neb. 496, 76 N.W. 1056 (1898).
Assumption of facts stipulated as true by defendant, and instruction as to legal effect, was proper. Pisar v. State, 56 Neb. 455, 76 N.W. 869 (1898).
Instruction on drunkenness as defense discussed. Latimer v. State, 55 Neb. 609, 76 N.W. 207 (1898).
Quotation of main portion of section under which prosecution was instituted was not misleading. Instruction as to consideration of circumstances was proper. Mills v. State, 53 Neb. 263, 73 N.W. 761 (1898).
Objection to instruction, because it contains two or more propositions, will not be considered, when made for first time in Supreme Court. Morgan v. State, 51 Neb. 672, 71 N.W. 788 (1897).
Instruction, that burden is on accused to establish an alibi, is erroneous. Beck v. State, 51 Neb. 106, 70 N.W. 498 (1897).
Error in refusal to give proffered instruction must affirmatively appear from inspection of entire record. Lauder v. State, 50 Neb. 140, 69 N.W. 776 (1897).
Instructions must be applicable to facts, as well as a correct statement of law; to make failure to give instruction prejudicial, proper one must be submitted. Wells v. State, 47 Neb. 74, 66 N.W. 29 (1896).
Instruction is erroneous if it infringes on province of jury or tends to shift burden of proof to accused. Haskins v. State, 46 Neb. 888, 65 N.W. 894 (1896).
Instruction reciting material evidence which is not before jury is error. Williams v. State, 46 Neb. 704, 65 N.W. 783 (1896).
Instruction, submitting question of fact material to issue, when there is no evidence to support finding of its existence, is error. Morearty v. State, 46 Neb. 652, 65 N.W. 784 (1896).
Instructions on larceny, and reasonable doubt, discussed. Lawhead v. State, 46 Neb. 607, 65 N.W. 779 (1896).
It is error to give instruction which assumes a material fact, evidence thereon being conflicting. Metz v. State, 46 Neb. 547, 65 N.W. 190 (1895).
Repetition of proposition of law, not of such character as to prejudice rights of accused, was not reversible error. Dixon v. State, 46 Neb. 298, 64 N.W. 961 (1895).
2. Opening statement
A prosecutor states a case as contemplated by this section when he or she outlines the nature of the proceeding against the defendant. State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985).
Opening statement of county attorney was a sufficient compliance with statute. Morris v. State, 109 Neb. 412, 191 N.W. 717 (1922).
Defendant may waive opening statement to jury. Pumphrey v. State, 84 Neb. 636, 122 N.W. 19 (1909).
It is competent for county attorney, before introduction of evidence, to outline evidence which state expects to produce. Russell v. State, 62 Neb. 512, 87 N.W. 344 (1901).
3. Misconduct
Alleged misconduct of officers in giving statements to newspaper reporters during trial is not ground for new trial unless prejudice is shown. Rogers v. State, 93 Neb. 554, 141 N.W. 139 (1913).
Objection that prosecuting attorney is guilty of misconduct at the trial, prejudicial to defendant, must be taken at the time. It is primarily a question for trial court. Goldsberry v. State, 92 Neb. 211, 137 N.W. 1116 (1912).
Arguments and insinuations not based upon competent evidence are improper. Kanert v. State, 92 Neb. 14, 137 N.W. 975 (1912).
To review ruling on alleged misconduct of counsel, it must be excepted to at time. Hanks v. State, 88 Neb. 464, 129 N.W. 1011 (1911).
In reviewing alleged misconduct of county attorney, decision by trial judge on conflicting evidence will not be disturbed unless clearly wrong. Holmes v. State, 82 Neb. 406, 118 N.W. 99 (1908); Harris v. State, 80 Neb. 195, 114 N.W. 168 (1907).
Adverse ruling and exception thereto must be shown to review ruling on misconduct of attorney in arguing case. Hamblin v. State, 81 Neb. 148, 115 N.W. 850 (1908).
Misconduct of counsel, so flagrant that neither retraction nor rebuke from court can entirely destroy its influence, is cause for new trial. Parker v. State, 67 Neb. 555, 93 N.W. 1037 (1903).
Prosecuting attorney should not state to jury his belief in guilt of accused, unless based on evidence. Reed v. State, 66 Neb. 184, 92 N.W. 321 (1902).
4. Admissibility of evidence
The trial court may in its discretion permit evidence in rebuttal which is not strictly rebuttal evidence. State v. Pratt, 197 Neb. 382, 249 N.W.2d 495 (1977); State v. Keith, 189 Neb. 536, 203 N.W.2d 500 (1973).
It is within discretion of trial court to permit introducing of evidence in rebuttal that is not strictly rebutting and may permit state to offer further evidence-in-chief for good reason and in furtherance of justice. State v. Howard, 184 Neb. 461, 168 N.W.2d 370 (1969).
On rebuttal, court may permit evidence of confession. Drewes v. State, 156 Neb. 319, 56 N.W.2d 113 (1952).
It is within the discretion of the trial court to permit in rebuttal the introduction of evidence not strictly rebutting. Hampton v. State, 148 Neb. 574, 28 N.W.2d 322 (1947).
Trial judge, in ruling upon objections to evidence, should refrain from expressing opinion concerning weight of evidence or credibility of witness. Johns v. State, 88 Neb. 145, 129 N.W. 247 (1910).
Plea of guilty entered at preliminary upon advice of officer cannot be received in evidence over objections of defendant. Heddendorf v. State, 85 Neb. 747, 124 N.W. 150 (1910).
Sufficiency of evidence, identifying defendant as perpetrator of crime, discussed. Buckley v. State, 79 Neb. 86, 112 N.W. 283 (1907).
Court may permit a party to reopen case and introduce other evidence before close of trial. Blair v. State, 72 Neb. 501, 101 N.W. 17 (1904).
Evidence admitted without objection, not necessarily injurious to defendant, is without prejudice. Lillie v. State, 72 Neb. 228, 100 N.W. 316 (1904).
Test of admissibility of confession stated. State v. Force, 69 Neb. 162, 95 N.W. 42 (1903); Strong v. State, 63 Neb. 440, 88 N.W. 772 (1902).
Confession, voluntarily made, is admissible when not prompted by any inducement. McNutt v. State, 68 Neb. 207, 94 N.W. 143 (1903); Reinoehl v. State, 62 Neb. 619, 87 N.W. 355 (1901); Coil v. State, 62 Neb. 15, 86 N.W. 925 (1901); Hills v. State, 61 Neb. 589, 85 N.W. 836 (1901).
Prior statements of accused, as to how crime might be committed, were properly admitted. Keating v. State, 67 Neb. 560, 93 N.W. 980 (1903).
Witness may be asked if he has known of defendant being arrested, defendant having offered evidence of good character. McCormick v. State, 66 Neb. 337, 92 N.W. 606 (1902).
Where expert witnesses testify to manner and cause of death, and refer to and use exhibits, it is proper to admit exhibits. Savary v. State, 62 Neb. 166, 87 N.W. 34 (1901).
Every fact which implies defendant's guilt is pertinent evidence to sustain such hypothesis. Jerome v. State, 61 Neb. 459, 85 N.W. 394 (1901).
It is error to exclude evidence, tendency of which is to put an innocent look upon inculpatory circumstances. Burlingim v. State, 61 Neb. 276, 85 N.W. 76 (1901).
Prior inconsistent statements of witness may be shown in rebuttal, to affect credibility. Tatum v. State, 61 Neb. 229, 85 N.W. 40 (1901).
Submission to jury of theory which has no basis in evidence is error. Thompson v. State, 61 Neb. 210, 85 N.W. 62 (1901).
Testimony of similar acts by defendant may be received to establish intent only. Knights v. State, 58 Neb. 225, 78 N.W. 508 (1899); Morgan v. State, 56 Neb. 696, 77 N.W. 64 (1898).
Order of introducing testimony will not prevent defendant from introducing evidence to impeach witness used on rebuttal by state. Argabright v. State, 56 Neb. 363, 76 N.W. 876 (1898).
Error cannot be predicated on admission of facts subsequently admitted. Whitney v. State, 53 Neb. 287, 73 N.W. 696 (1898).
Objections to admission of testimony must be made at trial, and ruling had thereon. Dutcher v. State, 16 Neb. 30, 19 N.W. 612 (1884).
5. Procedure
The appropriate procedure for closing arguments in criminal cases is provided by subsection (6) of this section. The trial court did not err in refusing to grant surrebuttal argument to the defendant, who had the burden of proof on the issue of insanity. State v. Hankins, 232 Neb. 608, 441 N.W.2d 854 (1989).
Order of proof is discretionary with the trial court. Small v. State, 165 Neb. 381, 85 N.W.2d 712 (1957).
Cautionary direction need not be in writing. Schriner v. State, 155 Neb. 894, 54 N.W.2d 224 (1952).
Order in which a party shall introduce his proof is, to great extent, discretionary with trial judge, and court's action will not be reversed unless abuse of discretion is shown. Hukill v. State, 109 Neb. 279, 190 N.W. 867 (1922); Joyce v. State, 88 Neb. 599, 130 N.W. 291 (1911); Baer v. State, 59 Neb. 655, 81 N.W. 856 (1900).
In larceny case, it is discretionary to permit state to withdraw announcement of rest, and prove ownership. Kurpgeweit v. State, 97 Neb. 713, 151 N.W. 172 (1915).
County attorney under direction of court may procure the assistance of counsel to prosecute person charged with felony. McKay v. State, 90 Neb. 63, 132 N.W. 741 (1911); Johns v. State, 88 Neb. 145, 129 N.W. 247 (1910).
Permission to put leading questions to witnesses of a party, where they appear hostile or unwilling, is in discretion of trial court. Ainlay v. State, 89 Neb. 721, 132 N.W. 120 (1911).
In trial for felony, prosecution should examine in first instance witnesses who have knowledge of res gestae. Johnson v. State, 88 Neb. 328, 129 N.W. 281 (1911).
Order permitting separation of jury in murder case for period of twenty-one days on account of quarantine of defendant's witnesses was not prejudicial error. Ossenkop v. State, 86 Neb. 539, 126 N.W. 72 (1910).
Credibility of defendant as witness is tested by same rule as applied to other witnesses. Holmes v. State, 85 Neb. 506, 123 N.W. 1043 (1909).
Answer, responsive to question asked, should not be stricken from record. Fouse v. State, 83 Neb. 258, 119 N.W. 478 (1909).
Right to cross-examine is confined to matters brought out in direct examination. Poston v. State, 83 Neb. 240, 119 N.W. 520 (1909).
On trial for felony, court may, in his discretion, exclude from courtroom all witnesses for state who are not being examined. Maynard v. State, 81 Neb. 301, 116 N.W. 53 (1908).
Court may, in exercise of reasonable discretion, limit number of witnesses testifying to a fact, where a number have already testified thereto, and fact is not in dispute. Cate v. State, 80 Neb. 611, 114 N.W. 942 (1908).
Dying declaration, in prosecution for homicide by procuring an abortion, admitted. Edwards v. State, 79 Neb. 251, 112 N.W. 611 (1907).
Where it appears to court that a juror has failed to hear part of the evidence, witness should be required to repeat that part which juror failed to hear. Haddix v. State, 76 Neb. 369, 107 N.W. 781 (1906).
It is error for judge to absent himself from courtroom, out of sight and hearing of parties, during the argument of counsel. Powers v. State, 75 Neb. 226, 106 N.W. 332 (1905); Palin v. State, 38 Neb. 862, 57 N.W. 743 (1894).
Trial court has large though not unlimited discretion in granting or refusing permission to ask leading questions. Woodruff v. State, 72 Neb. 815, 101 N.W. 1114 (1904); Dinsmore v. State, 61 Neb. 418, 85 N.W. 445 (1901).
Where party is cross-examined on a collateral matter, he cannot be subsequently contradicted as to his answer. Ferguson v. State, 72 Neb. 350, 100 N.W. 800 (1904).
Moral insanity as a defense is not recognized in this state. Bothwell v. State, 71 Neb. 747, 99 N.W. 669 (1904).
Length of time jury should be kept together rests in discretion of trial court. Jahnke v. State, 68 Neb. 154, 94 N.W. 158 (1903), reversed on rehearing 68 Neb. 181, 104 N.W. 154 (1905).
Nonexpert may give opinion in regard to a matter, which men in general are capable of comprehending, when it is impossible to lay before jury all pertinent facts as witness saw it. Russell v. State, 66 Neb. 497, 92 N.W. 751 (1902).
Trial court may limit number of witnesses to prove facts collateral to main issue. Biester v. State, 65 Neb. 276, 91 N.W. 416 (1902).
Right of trial judge to cross-examine accused should be exercised sparingly. Leo v. State, 63 Neb. 723, 89 N.W. 303 (1902); Nightingale v. State, 62 Neb. 371, 87 N.W. 158 (1901).
Court in charging jury is only required to state the law applicable to the facts proven. Strong v. State, 63 Neb. 440, 88 N.W. 772 (1902).
As a general rule, reexamination should be limited to points arising out of cross-examination. George v. State, 61 Neb. 669, 85 N.W. 840 (1901).
To justify conviction on circumstantial evidence, circumstances must be consistent with each other and inconsistent with any hypothesis of innocence. Smith v. State, 61 Neb. 296, 85 N.W. 49 (1901).
Burden of proof in criminal case does not shift to accused. Williams v. State, 60 Neb. 526, 83 N.W. 681 (1900).
Objection to question calling for incompetent testimony cannot be reserved until answer is received. Dunn v. State, 58 Neb. 807, 79 N.W. 719 (1899).
Rule of res gestae applied to statements in murder case. Sullivan v. State, 58 Neb. 796, 79 N.W. 721 (1899).
Preliminary to impeachment of a witness because of inconsistent statements at previous time, the attention of the witness should be called to the time and place where such alleged statements were made. McVey v. State, 55 Neb. 777, 76 N.W. 438 (1898).
Nondirection will not work reversal, proper instruction not being requested. Maxfield v. State, 54 Neb. 44, 74 N.W. 401 (1898); Johnson v. State, 53 Neb. 103, 73 N.W. 463 (1897).
Order in which a party shall introduce his proof is discretionary with trial court. Davis v. State, 51 Neb. 301, 70 N.W. 984 (1897).
It is competent for witness on redirect examination to make clear matters left incomplete or obscure on cross-examination. Collins v. State, 46 Neb. 37, 64 N.W. 432 (1895).
If information contains two counts, there being no evidence to sustain one, it is error to submit question to jury on that count. Botsch v. State, 43 Neb. 501, 61 N.W. 730 (1895).
Limit to cross-examination respecting past life of witness, other than defendant, for purpose of affecting his credibility, rests with court. Hill v. State, 42 Neb. 503, 60 N.W. 916 (1894).
It is only when there is total failure of proof, or where testimony is so weak or doubtful in character that a conviction could not be sustained, that trial court is justified in directing a verdict of not guilty. Wanzer v. State, 41 Neb. 238, 59 N.W. 909 (1894).
29-2017.
Jury; view place of occurrence of material fact; restrictions.Whenever in the opinion of the court it is proper for the jury to have a view of the place in which any material fact occurred, it may order them to be conducted in a body, under charge of the bailiff, to the place which shall be shown to them by the bailiff, an individual appointed by the court, or both. While the jury are thus absent, no person other than the bailiff or individual appointed by the court shall speak to them on any subject connected with the trial.
Source:G.S.1873, c. 58, § 479, p. 829; R.S.1913, § 9120; C.S.1922, § 10145; C.S.1929, § 29-2017; R.S.1943, § 29-2017;
Laws 2020, LB387, § 44.
Annotations
The court did not abuse discretion in rejecting defendant's motion to have jury visit jail from which he had escaped. State v. Glenn, 193 Neb. 230, 226 N.W.2d 137 (1975).
In absence of abuse of discretion, court may order, or refuse to permit, jury to inspect scene of alleged crime. State v. Craig, 189 Neb. 461, 203 N.W.2d 158 (1973).
No presumption that prisoner was not present at view, if record shows him to have been present in court when order was made, though record is silent as to presence at view. Fillion v. State, 5 Neb. 351 (1877).
View should be in presence of prisoner, unless he waives privilege. Carroll v. State, 5 Neb. 31 (1876).
29-2018.
Mistake in charging offense; prior to verdict; procedure.When it shall appear at any time before the verdict that a mistake has been made in charging the proper offense, the accused shall not be discharged if there appears to be good cause to detain him in custody; but the court must recognize him to answer to the offense on the first day of the next term of such court, and shall, if necessary, likewise recognize the witnesses to appear and testify.
Source:G.S.1873, c. 58, § 480, p. 829; R.S.1913, § 9121; C.S.1922, § 10146; C.S.1929, § 29-2018; R.S.1943, § 29-2018.
Annotations
In recognizing defendant to appear at next term, judge acts as examining magistrate, and, if he discharges defendant without so recognizing him such discharge will not be bar to arrest and examination before another magistrate. Sieck v. State, 96 Neb. 782, 148 N.W. 928 (1914).
Though information is defective, court may hold accused if probable cause exists. State v. Kendall, 38 Neb. 817, 57 N.W. 525 (1894).
29-2019.
Mistake in charging offense; jury; discharge prior to verdict.When a jury has been impaneled in a case contemplated by section 29-2018, such jury may be discharged without prejudice to the prosecution.
Source:G.S.1873, c. 58, § 481, p. 829; R.S.1913, § 9122; C.S.1922, § 10147; C.S.1929, § 29-2019; R.S.1943, § 29-2019.
29-2020.
Bill of exceptions by defendant; request; procedure; exception in capital cases.Except as provided in section 29-2525 for cases when the punishment is capital, in all criminal cases when a defendant feels aggrieved by any opinion or decision of the court, he or she may order a bill of exceptions. The ordering, preparing, signing, filing, correcting, and amending of the bill of exceptions shall be governed by the rules established in such matters in civil cases.
Source:G.S.1873, c. 58, § 482, p. 829; R.S.1913, § 9123; C.S.1922, § 10148; C.S.1929, § 29-2020; R.S.1943, § 29-2020; Laws 1959, c. 120, § 1, p. 452; Laws 1961, c. 135, § 2, p. 390;
Laws 1990, LB 829, § 1; Laws 2015, LB268, § 17; Referendum 2016, No. 426.
Note: The changes made to section 29-2020 by Laws 2015, LB 268, section 17, have been omitted because of the vote on the referendum at the November 2016 general election.
Cross References
Error proceedings by county attorney, decision on appeal, see section 29-2316.
Annotations
Preparation of bill of exceptions in criminal case is governed by rules governing a civil case. Benedict v. State, 166 Neb. 295, 89 N.W.2d 82 (1958).
Sufficient exceptions were taken by convicted defendant to warrant consideration of alleged errors committed at trial. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931).
Affidavits for continuance will not be considered by appellate court unless embodied in bill of exceptions. Hans v. State, 50 Neb. 150, 69 N.W. 838 (1897).
Facts of which there is no evidence or recitation in bill of exceptions, will be disregarded in Supreme Court. McCall v. State, 47 Neb. 660, 66 N.W. 635 (1896).
In capital case, want of exception will not necessarily deprive prisoner of right to new trial for prejudicial errors of court. Schlencker v. State, 9 Neb. 300, 2 N.W. 710 (1879).
Arguments of counsel on questions raised during trial and remarks of court in deciding them serve no useful place in bill of exceptions and should be omitted. Clough v. State, 7 Neb. 320 (1878).
Prisoner tried for felony is entitled to new trial on ground of prejudicial erroneous instruction, even though no objection was taken thereto. Thompson v. People, 4 Neb. 524 (1876).
29-2021.
Repealed. Laws 1959, c. 121,§4.
29-2022.
Jury; conduct after submission.When a case is finally submitted to the jury, they must be kept together in some convenient place, under the charge of an officer, until they agree upon a verdict or are discharged by the court. The officer having them in charge shall not suffer any communication to be made to them, or make any himself, except to ask them whether they have agreed upon a verdict, unless by order of the court; nor shall he communicate to anyone, before the verdict is delivered, any matter in relation to the state of their deliberations. If the jury are permitted to separate during the trial, they shall be admonished by the court that it is their duty not to converse with or suffer themselves to be addressed by any other person on the subject of the trial, nor to listen to any conversation on the subject; and it is their duty not to form or express an opinion thereon until the cause is finally submitted to them.
Source:G.S.1873, c. 58, § 484, p. 830; R.S.1913, § 9125; C.S.1922, § 10150; C.S.1929, § 29-2022; R.S.1943, § 29-2022.
Annotations
1. Reversible error
2. Not reversible error
3. Miscellaneous
1. Reversible error
The basic purpose of this section is to preserve the right to a fair trial by shielding the jury from improper contact by others and restricting the opportunities for improper conduct by jurors during the course of their deliberations. In the absence of express agreement or consent by the defendant, a failure to comply with this section by permitting the jurors to separate after submission of the case is erroneous, creates a rebuttable presumption of prejudice, and places the burden upon the prosecution to show that no injury resulted. State v. Barranco, 278 Neb. 165, 769 N.W.2d 343 (2009).
Under this section, after submission of a criminal case to the jury, the defendant has the right to have the jury kept together until the jury agrees on a verdict or is discharged by the court, and this right may be waived only by specific agreement or consent of counsel for the parties. In the absence of express agreement or consent by the defendant, a failure to comply with this section by permitting the jurors to separate after submission of the case is erroneous, creates a rebuttable presumption of prejudice, and places the burden upon the prosecution to show that no injury resulted. State v. Bao, 263 Neb. 439, 640 N.W.2d 405 (2002).
The defendant has a right to have the jury kept together from the submission to it of a criminal case until they agree on a verdict or are discharged by the court. State v. Robbins, 205 Neb. 226, 287 N.W.2d 55 (1980).
Communication by county attorney to juror was reversible error. Olsen v. State, 113 Neb. 69, 201 N.W. 969 (1925).
On trial for felony after case has been submitted to jury, it is error to permit court reporter to read testimony of witnesses for prosecution to jury in absence of defendant's counsel. Bartell v. State, 40 Neb. 232, 58 N.W. 716 (1894).
Use of statute in jury room during deliberation vitiates verdict. Harris v. State, 24 Neb. 803, 40 N.W. 317 (1888).
Bailiff, by remaining in jury room during time of considering verdict, vitiates verdict. Gandy v. State, 24 Neb. 716, 40 N.W. 302 (1888).
2. Not reversible error
The determination of whether or not a jury should be sequestered during the trial of a criminal case is left to the discretion of the trial court and, absent an abuse of that discretion or evidence of jury tampering or misconduct, that decision will not be reversed on appeal. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).
The obtaining of affidavits from jurors was an acceptable means of obtaining the necessary facts for a hearing to determine whether there had been improper juror conduct or communication in a criminal trial. State v. Robbins, 207 Neb. 439, 299 N.W.2d 437 (1980).
The determination of whether or not a jury should be sequestered during recess of a criminal trial rests with the discretion of the trial court and, absent an abuse of that discretion or evidence of jury tampering or misconduct, that decision will not be reversed on appeal. State v. Myers, 205 Neb. 867, 290 N.W.2d 660 (1980).
Whether or not a jury should be sequestered during the trial of a criminal case is left to the sound discretion of the court. State v. Bautista, 193 Neb. 476, 227 N.W.2d 835 (1975).
An admonition is not required each time the jury is permitted to separate. Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689 (1951).
Right to have jury kept together after submission of case may be waived. Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533 (1946).
Where prosecution adjourned for illness of juror, order overruling defendant's objections after twenty-six day adjournment was not reversible error. Penn v. State, 119 Neb. 95, 227 N.W. 314 (1929).
Separation of jury during recesses of court while trial is in progress and before final submission and permitting jurors to go home at close of day's service in court is within discretion of court. Wesley v. State, 112 Neb. 360, 199 N.W. 719 (1924).
Postponement for twenty-one days, after state had made case in chief, permitting jury to separate, was not error where no misconduct of juror is shown. Ossenkop v. State, 86 Neb. 539, 126 N.W. 72 (1910).
Fact that deputy sheriff was called as witness does not disqualify him from having charge of jury. Van Syoc v. State, 69 Neb. 520, 96 N.W. 266 (1903).
Objection based on mere inference that jury was allowed to separate, raised for first time in Supreme Court, is unavailing. Coil v. State, 62 Neb. 15, 86 N.W. 925 (1901).
Where one juror separated from others after submission but no one communicated with him during separation, it was not ground for new trial. Spaulding v. State, 61 Neb. 289, 85 N.W. 80 (1901).
Assignment of error on ground of separation of jury is not sufficient unless it alleges they were not admonished, or failed to comply with their duty. Langford v. State, 32 Neb. 782, 49 N.W. 766 (1891).
Separation of jury before submission, known to prisoner and counsel, but not disclosed to judge until after verdict, is not ground for new trial. Polin v. State, 14 Neb. 540, 16 N.W. 898 (1883).
3. Miscellaneous
Prejudice arising from the failure to comply with the requirements of this section does not alter the prejudice analysis required by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015).
A defendant waives his or her right under this section to have the jury kept together by failing to object to the jury's separation, overruling State v. Robbins, 205 Neb. 226, 287 N.W.2d 55 (1980). State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011).
Under this section, the defendant has the right to have the jury kept together until the jury agrees on a verdict or is discharged by the court. State v. Barranco, 278 Neb. 165, 769 N.W.2d 343 (2009).
Although this section states that the bailiff, as the officer having the jury in his or her charge, shall not make "any communication" to jurors except to ask whether they have agreed upon a verdict, some incidental communication between the bailiff and jurors beyond that specified under this section will unavoidably occur. When such communication is limited to simple, practical matters of logistics, such as the location of the facilities used for deliberations, such communication is not likely to be prejudicial to the defendant or deny the defendant a fair trial. But while communications concerning administrative matters may not be prejudicial, when communications involve matters of law, the risk of prejudice is present and communication by the bailiff to jurors on such matters is improper. State v. Floyd, 272 Neb. 898, 725 N.W.2d 817 (2007).
29-2023.
Jury; discharged before verdict; effect; record.In case a jury is discharged on account of sickness of a juror, or other accident or calamity requiring their discharge, or after they have been kept so long together that there is no probability of agreeing, the court shall, upon directing the discharge, order that the reasons for such discharge be entered upon the record and such discharge shall be without prejudice to the prosecution.
Source:G.S.1873, c. 58, § 485, p. 830; R.S.1913, § 9126; C.S.1922, § 10151; C.S.1929, § 29-2023; R.S.1943, § 29-2023;
Laws 2018, LB193, § 58; Laws 2020, LB387, § 45.
Annotations
1. Discharge without prejudice
2. Basis for discharge
3. Journal entry
4. Miscellaneous
1. Discharge without prejudice
A mistrial because of disagreement of the jury is without prejudice to the right of the state to retry the defendant. State v. Fromkin, 174 Neb. 849, 120 N.W.2d 25 (1963).
In a criminal trial where the jury is discharged in accordance with this section, such discharge is without prejudice to the prosecution. State v. Hutter, 145 Neb. 798, 18 N.W.2d 203 (1945).
2. Basis for discharge
Drunkenness of juror is an accident or calamity requiring discharge of jury. Fetty v. State, 119 Neb. 619, 230 N.W. 440 (1930).
Serious illness of juror's wife and death of his child was sufficient to warrant discharge of jury. Salistean v. State, 115 Neb. 838, 215 N.W. 107 (1927).
Where biased juror is discovered during progress of trial, court may discharge jury. Quinton v. State, 112 Neb. 684, 200 N.W. 881 (1924).
Insanity of juror authorizes discharge, being an "accident or calamity." Davis v. State, 51 Neb. 301, 70 N.W. 984 (1897).
3. Journal entry
Entry of reasons on journal should be ordered; "sickness" must be of a sudden and calamitous nature. Conklin v. State, 25 Neb. 784, 41 N.W. 788 (1889).
Record must show necessity for discharge. State v. Schuchardt, 18 Neb. 454, 25 N.W. 722 (1885).
4. Miscellaneous
Holding accused for trial after discharge of jury because of the jury's inability to agree is not former jeopardy. Sutter v. State, 105 Neb. 144, 179 N.W. 414 (1920).
Court has large discretion as to length of time jury shall be kept together in consultation. Russell v. State, 66 Neb. 497, 92 N.W. 751 (1902).
29-2024.
Verdict; poll.When the jury have agreed upon their verdict they must be conducted into court by the officer having them in charge. Before the verdict is accepted the jury may be polled at the request of either the prosecuting attorney or the defendant.
Source:G.S.1873, c. 58, § 486, p. 830; R.S.1913, § 9127; C.S.1922, § 10152; C.S.1929, § 29-2024; R.S.1943, § 29-2024.
Annotations
1. Reception of verdict
2. Polling of jury
3. Miscellaneous
1. Reception of verdict
Irregularity in receiving verdict in absence of counsel may be waived. Hyslop v. State, 159 Neb. 802, 68 N.W.2d 698 (1955).
Verdict received in vacation time is not a "privy verdict." Manion v. State, 104 Neb. 130, 175 N.W. 1013 (1920).
Reception of verdict in criminal case is governed by this section. Evers v. State, 84 Neb. 708, 121 N.W. 1005 (1909).
Verdict must be given in open court. Longfellow v. State, 10 Neb. 105, 4 N.W. 420 (1880).
Jury may not return instead of verdict a statement that they have agreed to disagree. Green v. State, 10 Neb. 102, 4 N.W. 422 (1880).
Verdict signed by all jurors is good. Clough v. State, 7 Neb. 320 (1878).
Verdict finding defendant guilty, without adding "in manner and form," etc., is good. Preuit v. State, 5 Neb. 377 (1877).
2. Polling of jury
A defendant may waive his right to have the jury polled. When upon inquiry by the court he replies in the negative, the right is waived. State v. Hiatt, 190 Neb. 315, 207 N.W.2d 678 (1973).
Jury need not be polled unless requested by defendant or prosecuting attorney. Feddern v. State, 79 Neb. 651, 113 N.W. 127 (1907).
3. Miscellaneous
Verdict should be certain, not ambiguous; sufficient if in light of record meaning is clear beyond reasonable doubt. Keeler v. State, 73 Neb. 441, 103 N.W. 64 (1905).
Verdict is void which omits name of guilty party. Williams v. State, 6 Neb. 334 (1877).
29-2025.
Lesser included offense; attempt to commit; form of verdict.Upon an indictment for an offense consisting of different degrees the jury may find the defendant not guilty of the degree charged, and guilty of any degree inferior thereto; and upon an indictment for any offense the jury may find the defendant not guilty of the offense but guilty of an attempt to commit the same, where such an attempt is an offense.
Source:G.S.1873, c. 58, § 487, p. 830; R.S.1913, § 9128; C.S.1922, § 10153; C.S.1929, § 29-2025; R.S.1943, § 29-2025.
Annotations
Where under statute attempt to commit defined offense is punishable, instruction on attempt is not erroneous even though defendant is not formally charged with attempt. State v. Ambrose, 192 Neb. 285, 220 N.W.2d 18 (1974).
The unlawful operation of a motor vehicle is not necessarily an included offense in prosecution for motor vehicle homicide. Olney v. State, 169 Neb. 717, 100 N.W.2d 838 (1960).
Charge of shooting with intent to wound may include lesser offense of assault or assault and battery. Moore v. State, 147 Neb. 390, 23 N.W.2d 552 (1946).
It is not error to fail to submit question of accused's guilt of lesser offense where evidence is not such as to warrant such verdict. Davis v. State, 116 Neb. 90, 215 N.W. 785 (1927).
Jury may find accused not guilty of offense charged but guilty of attempt to commit same where such attempt is an offense. In re Resler, 115 Neb. 335, 212 N.W. 765 (1927).
Provisions of section extend to subsequently created offenses. Mulloy v. State, 58 Neb. 204, 78 N.W. 525 (1890).
Verdict of guilty of manslaughter on charge of murder in first degree is valid, though it fails to specifically negative fact that crime was of higher grade. Williams v. State, 6 Neb. 334 (1877).
29-2026.
Repealed. Laws 1963, c. 163, § 1.
29-2026.01.
Verdict; finding of value of property; when required.When the indictment charges an offense against the property of another by larceny, embezzlement or obtaining under false pretenses, the jury, on conviction, shall ascertain and declare in its verdict the value of the property stolen, embezzled, or falsely obtained.
Source:Laws 1965, c. 146, § 1, p. 488.
Annotations
In a theft case where a jury trial has been waived, the value of the property is one of the facts and elements of the crime to be determined by the trial judge, and this section is not applicable. State v. Reed, 228 Neb. 645, 423 N.W.2d 777 (1988).
Restitution, in a larceny case, can be ordered only if the jury determines by verdict the value of property stolen. State v. Frandsen, 199 Neb. 546, 260 N.W.2d 206 (1977).
This section not applicable where crime charged is that of receiving stolen property at a value of more than one hundred dollars. State v. McKee, 183 Neb. 754, 163 N.W.2d 434 (1969).
Verdict of jury in larceny case must determine value of property stolen. State v. Houp, 182 Neb. 298, 154 N.W.2d 465 (1967).
Requirement that jury fix the amount obtained by false pretense in its verdict was not in effect at time of commission of offense or at time of trial. State v. Swanson, 179 Neb. 693, 140 N.W.2d 618 (1966).
In a theft case, the trial court erred in limiting the jury's consideration of value and in submitting a form of verdict which precluded a jury from making a specific finding of value and conveying that fact to the judge in its verdict. State v. Long, 2 Neb. App. 847, 516 N.W.2d 273 (1994).
Double jeopardy protection not violated where court at first trial failed to notify jury of need to ascertain value of property stolen and set aside guilty verdict ordering defendant retried although court knew of error while jury was out. Houp v. State, 427 F.2d 254 (8th Cir. 1970).
29-2027.
Verdict in trials for murder; conviction by confession; sentencing procedure.In all trials for murder the jury before whom such trial is had, if they find the prisoner guilty thereof, shall ascertain in their verdict whether it is murder in the first or second degree or manslaughter; and if such person is convicted by confession in open court, the court shall proceed by examination of witnesses in open court, to determine the degree of the crime, and shall pronounce sentence accordingly or as provided in sections 29-2519 to 29-2524 for murder in the first degree.
Source:G.S.1873, c. 58, § 489, p. 830; R.S.1913, § 9130; C.S.1922, § 10155; C.S.1929, § 29-2027; R.S.1943, § 29-2027;
Laws 2002, Third Spec. Sess., LB 1, § 7; Laws 2015, LB268, § 18; Referendum 2016, No. 426.
Note: The changes made to section 29-2027 by Laws 2015, LB 268, section 18, have been omitted because of the vote on the referendum at the November 2016 general election.
Annotations
1. Degree of offense
2. Plea of guilty
3. Habeas corpus
1. Degree of offense
Where murder is charged, a court is required to instruct the jury on all lesser degrees of criminal homicide for which there is proper evidence before the jury; this statutory rule does not apply when the charge is attempted murder. State v. Smith, 284 Neb. 636, 822 N.W.2d 401 (2012).
In a murder trial, the district court was required to instruct the jury as to the lesser-included offenses of second degree murder and manslaughter where there were no eyewitnesses to the deceased's death and the evidence adduced at trial was largely circumstantial. State v. Weaver, 267 Neb. 826, 677 N.W.2d 502 (2004).
When a proper, factual basis is present, a court must instruct a jury on the degrees of criminal homicide, that is, the provisions of this section are mandatory. State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000).
When there is a proper, factual basis, a court is required to instruct on the degrees of criminal homicide even in the absence of a requested instruction regarding the lesser degrees of criminal homicide. State v. Archbold, 217 Neb. 345, 350 N.W.2d 500 (1984).
This section requires an instruction be given on such lesser degrees of homicide as find support in the evidence. State v. Drew, 216 Neb. 685, 344 N.W.2d 923 (1984).
The trial court is required, without request, to instruct the jury on such lesser degrees of homicide as to which the evidence is properly applicable. State v. Rowe, 210 Neb. 419, 315 N.W.2d 250 (1982).
When a defendant is charged with murder in the first degree, it is reversible error for the court to fail to instruct the jury on such lesser degrees of homicide as the evidence could support, even if no request is made for such an instruction. State v. Payne, 205 Neb. 522, 289 N.W.2d 173 (1980).
Guilty plea following deliberate killing of unarmed victim clearly justified finding of second degree murder. State v. Thompson, 199 Neb. 67, 255 N.W.2d 880 (1977).
Where different inferences may be drawn, court must submit different degrees to jury. Vanderheiden v. State, 156 Neb. 735, 57 N.W.2d 761 (1953).
This section prescribes the duty of court and jury in ascertaining the degree of offense and imposition of sentence. Moore v. State, 148 Neb. 747, 29 N.W.2d 366 (1947).
Degree of murder is ordinarily for jury; different degrees of murder must be submitted to jury under evidence and circumstances authorizing different inferences as to degree. Denison v. State, 117 Neb. 601, 221 N.W. 683 (1928).
In all trials for murder, the provisions of this section are mandatory. Bourne v. State, 116 Neb. 141, 216 N.W. 173 (1927).
Jury is required, if it find accused guilty, to find whether guilty of murder in first or second degree or manslaughter; jury may acquit accused of degree charged and convict of lesser degree. Russell v. State, 66 Neb. 497, 92 N.W. 751 (1902).
Verdict of guilty which does not ascertain whether it be murder or manslaughter confers no power on court to pass sentence. Parrish v. State, 18 Neb. 405, 25 N.W. 573 (1885).
Failure to negative fact that crime was of higher degree than that found is no ground for reversal. Williams v. State, 6 Neb. 334 (1877).
2. Plea of guilty
Where the defendant pleads to a specific degree of murder, this section does not apply. State v. Belmarez, 254 Neb. 467, 577 N.W.2d 264 (1998).
Proceedings in error carried on within statutory term after final judgment are required to review alleged error of trial court in failing to examine witnesses in open court to determine degree of guilt. Newcomb v. State, 129 Neb. 69, 261 N.W. 348 (1935).
Instruction given by trial court constituted a determination of degree of guilt on plea of guilty. Cole v. State, 105 Neb. 371, 180 N.W. 564 (1920).
3. Habeas corpus
One charged with murder in first degree and convicted of second degree cannot obtain release on habeas corpus on ground he was convicted of a separate and distinct offense from that charged. Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124 (1946).
Regularity of proceedings leading up to sentence cannot be inquired into by habeas corpus. Fuller v. Fenton, 104 Neb. 358, 177 N.W. 154 (1920).
29-2028.
Sexual assault; testimony; corroboration not required.The testimony of a person who is a victim of a sexual assault as defined in sections 28-319 to 28-320.01 shall not require corroboration.
Annotations
The State is not required to corroborate a victim's testimony in cases of first degree sexual assault, even if the testimony is inconsistent with prior statements; if believed by the finder of fact, the victim's testimony alone is sufficient. State v. Anders, 311 Neb. 958, 977 N.W.2d 234 (2022).
Testimony concerning corroboration in sexual offense cases is not rendered inadmissible under this section, but is no longer required. State v. Williamson, 235 Neb. 960, 458 N.W.2d 236 (1990).
An appellate court concluded that uncorroborated testimony would be sufficient to convict a defendant of sexual assault as defined in sections 28-319 to 28-320.01 in any case wherein the fact finder determined that such testimony was sufficient evidence of guilt beyond a reasonable doubt. State v. Luff, 18 Neb. App. 422, 783 N.W.2d 625 (2010).
A jury instruction was found to be a correct statement of the law under this section. The instructions, when taken together, advised the jury that while corroboration of the victim's testimony was not required, corroboration, or the lack thereof, could be considered by the jury in determining the weight to be given to the testimony, although the concurring opinion cautioned against routinely giving instruction at issue in this case. State v. Schmidt, 16 Neb. App. 741, 750 N.W.2d 390 (2008).
29-2101.
New trial; grounds.A new trial, after a verdict of conviction, may be granted, on the application of the defendant, for any of the following grounds affecting materially his or her substantial rights: (1) Irregularity in the proceedings of the court, of the prosecuting attorney, or of the witnesses for the state or in any order of the court or abuse of discretion by which the defendant was prevented from having a fair trial; (2) misconduct of the jury, of the prosecuting attorney, or of the witnesses for the state; (3) accident or surprise which ordinary prudence could not have guarded against; (4) the verdict is not sustained by sufficient evidence or is contrary to law; (5) newly discovered evidence material for the defendant which he or she could not with reasonable diligence have discovered and produced at the trial; (6) newly discovered exculpatory DNA or similar forensic testing evidence obtained under the DNA Testing Act; or (7) error of law occurring at the trial.
Source:G.S.1873, c. 58, § 490, p. 831; R.S.1913, § 9131; C.S.1922, § 10156; C.S.1929, § 29-2101; R.S.1943, § 29-2101;
Laws 2001, LB 659, § 11.
Cross References
DNA Testing Act, see section 29-4116.
Annotations
1. Newly discovered evidence
2. Misconduct of attorney
3. Misconduct of jury
4. Irregularity in proceedings
5. Other grounds
6. Miscellaneous
1. Newly discovered evidence
Evidence must have existed at trial for it to be uncovered after the trial. State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021).
Evidence of facts happening after trial ordinarily cannot be considered as newly discovered evidence on which to justify the granting of a new trial. State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021).
A new trial can be granted on grounds materially affecting the substantial rights of the defendant, including "newly discovered evidence material for the defendant which he or she could not with reasonable diligence have discovered and produced at trial." State v. Dunster, 270 Neb. 773, 707 N.W.2d 412 (2005).
In considering a motion for new trial based upon newly discovered evidence pursuant to either subsection (5) or (6) of this section, the Nebraska Supreme Court applies a higher standard in order to promote the finality of the judgment based upon the presumption that the defendant received a fair trial and no fundamental rights were violated. State v. El-Tabech, 269 Neb. 810, 696 N.W.2d 445 (2005).
The proper standard for reviewing motions for new trial pursuant to subsection (6) of this section is the same standard for reviewing a motion for new trial based upon newly discovered evidence pursuant to subsection (5) of this section. State v. El-Tabech, 269 Neb. 810, 696 N.W.2d 445 (2005).
To warrant a new trial pursuant to subsection (6) of this section, the district court must determine that newly discovered exculpatory evidence obtained pursuant to the DNA Testing Act is of such a nature that if it had been offered and admitted at the trial, it probably would have produced a substantially different result. State v. El-Tabech, 269 Neb. 810, 696 N.W.2d 445 (2005).
To warrant a new trial, the court must determine that newly discovered exculpatory evidence obtained pursuant to the DNA Testing Act must be of such a nature that if it had been offered and admitted at the former trial, it probably would have produced a substantially different result. State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004); State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003).
A motion for new trial filed under subsection (6) of this section based on newly discovered exculpatory evidence obtained pursuant to the DNA Testing Act is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed. State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003).
The appeal of a ruling denying a motion to vacate and set aside the judgment under subsection (2) of section 29-4123 of the DNA Testing Act does not deprive a trial court of jurisdiction to consider a motion for new trial filed under subsection (6) of this section based on newly discovered evidence obtained under the DNA Testing Act. State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003).
When a codefendant who has chosen not to testify subsequently comes forward to offer testimony exculpating a defendant, the evidence is not newly discovered within the meaning of this section; the substance of the codefendant's testimony is not, in fact, new evidence if it was known by the defendant at the time of the initial trial. State v. Jackson, 264 Neb. 420, 648 N.W.2d 282 (2002).
A motion for new trial based on newly discovered evidence is to be presented to the county court as the fact finder, not to the district court which sat as an appellate court. State v. Ferris, 216 Neb. 606, 344 N.W.2d 668 (1984).
Where a motion for new trial is based on newly discovered evidence, the rule is well-established that the newly discovered evidence must be of such a nature that if offered and admitted at the former trial, it probably would have produced a substantial difference in the result. State v. Ferris, 216 Neb. 606, 344 N.W.2d 668 (1984).
In order to justify a new trial, newly discovered evidence must involve something other than the credibility of a witness who testified at trial. State v. Pierce and Wells, 215 Neb. 512, 340 N.W.2d 122 (1983).
Newly discovered evidence concerning the credibility of a witness is not sufficient to support a motion for new trial. State v. Hortman, 207 Neb. 393, 299 N.W.2d 187 (1980).
Newly discovered evidence must be of such a nature that, if offered and admitted at the former trial, it probably would have produced a difference in the result. State v. Smith, 202 Neb. 501, 276 N.W.2d 104 (1979).
Newly discovered evidence must be relevant and credible, and not merely cumulative. It must involve something other than the credibility of witnesses who testified at the former trial. State v. Smith, 202 Neb. 501, 276 N.W.2d 104 (1979).
Unless the newly discovered evidence is so substantial that it would have probably changed the result, the discretion of the trial court in denying a motion for new trial will not be disturbed. State v. French, 200 Neb. 137, 262 N.W.2d 711 (1978).
In a criminal prosecution, a new trial will be granted on timely application of defendant for newly discovered evidence material for defendant, provided his substantial rights are affected and he could not with reasonable diligence have discovered and produced the evidence at trial. State v. Atkinson, 191 Neb. 9, 213 N.W.2d 351 (1973).
A new trial will not ordinarily be granted for newly discovered evidence which, when produced, will merely impeach or discredit a witness. State v. Wycoff, 180 Neb. 799, 146 N.W.2d 69 (1966).
District court is not deprived of jurisdiction to hear and determine motion for new trial on newly discovered evidence by pendency in Supreme Court of error proceeding. Smith v. State, 167 Neb. 492, 93 N.W.2d 499 (1958).
To warrant granting of new trial, newly discovered evidence must be competent, material, and credible. Gates v. State, 160 Neb. 722, 71 N.W.2d 460 (1955).
Newly discovered evidence, to justify granting of new trial, must be of so controlling a nature as to probably change the result of the former trial. Penn Mutual Life Ins. Co. v. Lindquist, 132 Neb. 220, 271 N.W. 429 (1937).
New trial may be granted on ground of newly discovered evidence which is competent, material and credible, which might have changed result, and which could not be discovered by exercise of due diligence. Duffey v. State, 124 Neb. 23, 245 N.W. 1 (1932).
To be entitled to new trial on ground of newly discovered evidence, party must show that it is material and could not have been produced at trial by reasonable diligence. Mauer v. State, 113 Neb. 418, 203 N.W. 554 (1925); Cunningham v. State, 56 Neb. 691, 77 N.W. 60 (1898).
When it is conceded by state that facts exist which could not have been known at trial, and which render it improbable that defendant is guilty, a new trial after term in which judgment was rendered may be granted. Franco v. State, 98 Neb. 746, 154 N.W. 236 (1915).
Newly discovered evidence which merely tends to impeach state's witnesses with respect to collateral facts is not ground for new trial. Hanks v. State, 88 Neb. 464, 129 N.W. 1011 (1911).
Court of equity will not interfere to grant new trial in criminal case on ground of newly discovered evidence. Hubbard v. State, 72 Neb. 62, 100 N.W. 153 (1904).
Motion for new trial on ground of newly discovered evidence was properly overruled when affidavit of proposed witness was contradicted by his sworn testimony. Housh v. State, 43 Neb. 163, 61 N.W. 571 (1895).
Newly discovered evidence which merely tends to discredit some of state's witnesses is not ground for new trial. Ogden v. State, 13 Neb. 436, 14 N.W. 165 (1882).
Pursuant to section 29-2103(4), a motion for new trial based on newly discovered evidence under subsection (5) of this section must be filed within 3 years of the date of the verdict. State v. Luff, 18 Neb. App. 422, 783 N.W.2d 625 (2010).
Pursuant to subsection (5) of this section, a new trial may be granted when a defendant produces newly discovered evidence which he or she could not with reasonable diligence have discovered and produced at trial. State v. Luff, 18 Neb. App. 422, 783 N.W.2d 625 (2010).
The trial court properly overruled the defendant's motion for new trial because the defendant filed the motion more than 10 days after the verdict and because the defendant's newly discovered evidence was cumulative and only went to the credibility of a witness. State v. Egger, 8 Neb. App. 740, 601 N.W.2d 785 (1999).
If a motion for new trial raises valid grounds for reexamination on the basis of newly discovered evidence to ascertain whether or not a person has been wrongfully convicted, then the steps provided for such reexamination should be taken timely and without undue delay, even though a prior motion for new trial is pending on appeal. State v. Owen, 2 Neb. App. 195, 508 N.W.2d 299 (1993).
2. Misconduct of attorney
Misconduct of prosecuting attorney in argument to jury is ground for new trial. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931).
Misconduct of prosecuting attorney in argument must have been sufficient to unduly influence the jury and prejudice the rights of defendant. Argabright v. State, 62 Neb. 402, 87 N.W. 146 (1901).
Misconduct of attorney must have been excepted to. Bullis v. Drake, 20 Neb. 167, 29 N.W. 292 (1886).
3. Misconduct of jury
Pretrial bet by juror that defendant would receive the death penalty was not prejudicial to defendant where verdict of jury called for life imprisonment. Fugate v. State, 169 Neb. 420, 99 N.W.2d 868 (1959).
Affidavits of jurors, relating to arguments or statements made in jury room, will not be received to impeach verdict. Lambert v. State, 91 Neb. 520, 136 N.W. 720 (1912); Welsh v. State, 60 Neb. 101, 82 N.W. 368 (1900).
Discussion by jury of irrelevant matters is not misconduct; keeping jury together a long time, without opportunity for sleep, does not vitiate verdict if same is deliberate and voluntary. Lambert v. State, 91 Neb. 520, 136 N.W. 720 (1912); Russell v. State, 66 Neb. 497, 92 N.W. 751 (1902).
Misconduct of jury in deliberations cannot be shown by statements of jurors. Savary v. State, 62 Neb. 166, 87 N.W. 34 (1901).
Verdict cannot be impeached by juror on ground that he misunderstood evidence of witness, or verdict when same was assented to in open court. Coil v. State, 62 Neb. 15, 86 N.W. 925 (1901).
Where it is attempted to show misconduct of jury by affidavit of jurors, trial court can take into consideration presumption that jurors obeyed their oaths. Tracey v. State, 46 Neb. 361, 64 N.W. 1069 (1895).
Finding of trial court will not be disturbed where evidence of alleged misconduct of jurors is conflicting. McMahon v. State, 46 Neb. 166, 64 N.W. 694 (1895).
Affidavit after verdict, contradicting answer of juror on voir dire examination, should be received with caution. Hill v. State, 42 Neb. 503, 60 N.W. 916 (1894).
Motion on ground of previous expression of opinion by juror will not be granted unless both accused and his counsel did not have knowledge thereof. Clough v. State, 7 Neb. 320 (1878).
Drinking of liquor by juror is not fatal to verdict. Ankeny v. Rawhouser, 2 Neb. Unof. 32, 95 N.W. 1053 (1901).
4. Irregularity in proceedings
In criminal case, alleged errors of the trial court not referred to in a motion for a new trial will not be considered on appeal. State v. Svoboda, 194 Neb. 663, 234 N.W.2d 901 (1975).
Ruling on motion submitted on conflicting affidavits, will not be disturbed unless clearly wrong. Lukehart v. State, 91 Neb. 219, 136 N.W. 40 (1912).
Alleged error in instructions will not be considered in Supreme Court unless challenged by motion for new trial. Lackey v. State, 56 Neb. 298, 76 N.W. 561 (1898).
Admission of immaterial evidence, not prejudicial to accused, is not ground for reversal. Carrall v. State, 53 Neb. 431, 73 N.W. 939 (1898).
To warrant conviction it is not essential that evidence exclude every possible hypothesis except guilt of accused. Johnson v. State, 53 Neb. 103, 73 N.W. 463 (1897).
New trial will not be allowed because of absence of witness who testifies on subsequent day of trial. Morgan v. State, 51 Neb. 672, 71 N.W. 788 (1897).
Exclusion of merely cumulative testimony is not prejudicial. Kelly v. State, 51 Neb. 572, 71 N.W. 299 (1897).
Erroneous instruction is not cured by merely giving another contradicting it. Henry v. State, 51 Neb. 149, 70 N.W. 924 (1897).
Denial of motion to require election by state is reviewable, though not assigned as error in motion for new trial. Hans v. State, 50 Neb. 150, 69 N.W. 838 (1897).
Alleged errors in overruling challenges to jurors for cause are not reviewable unless assigned in motion for new trial. Ford v. State, 46 Neb. 390, 64 N.W. 1082 (1895).
Verdict will not be disturbed merely because evidence is conflicting. Palmer v. People, 4 Neb. 68 (1875).
5. Other grounds
Unless alleged errors are pointed out in motion for new trial and ruling obtained thereon, appeal must be dismissed. State v. Fauth, 192 Neb. 502, 222 N.W.2d 561 (1974).
In criminal cases, alleged errors of the trial court not referred to in the motion for a new trial will not be considered on appeal. State v. Seger, 191 Neb. 760, 217 N.W.2d 828 (1974).
Motion for new trial set out some of the reasons contained in this section. Kennedy v. State, 170 Neb. 193, 101 N.W.2d 853 (1960).
Common law writ of error coram nobis is not abolished. Carlsen v. State, 129 Neb. 84, 261 N.W. 339 (1935).
Allowance of new trial, where crime consists of several degrees charged in different counts, goes to whole case; but when separate crimes are charged, goes only to count on which defendant was convicted. George v. State, 59 Neb. 163, 80 N.W. 486 (1899).
Defect in verdict, though not assigned as ground for new trial, may be examined by Supreme Court in error proceeding. Holmes v. State, 58 Neb. 297, 78 N.W. 641 (1899).
Misconduct of spectator, who is immediately suppressed and rebuked by court, is not reversible error. Lindsay v. State, 46 Neb. 177, 64 N.W. 716 (1895).
Alleged errors, to be reviewable, must have been set out in motion for new trial. Madsen v. State, 44 Neb. 631, 62 N.W. 1081 (1895).
Absence of accused from courtroom, where upon his return testimony was again repeated, was not ground for new trial. Hair v. State, 16 Neb. 601, 21 N.W. 464 (1884).
Ruling on plea in abatement was not ground for motion. Bohanan v. State, 15 Neb. 209, 18 N.W. 129 (1884).
In capital case, want of exception will not necessarily deprive accused of right of new trial. Schlencker v. State, 9 Neb. 300, 2 N.W. 710 (1879); Thompson v. People, 4 Neb. 524 (1876).
6. Miscellaneous
Evidence received at postconviction proceedings cannot be considered in determining a subsequent motion for new trial based on evidence obtained through the DNA Testing Act if the postconviction evidence was not presented at the defendant's former trial and is not newly discovered DNA or similar forensic testing evidence. State v. Duncan, 309 Neb. 455, 960 N.W.2d 576 (2021).
Ineffective assistance of counsel is not a ground upon which a defendant may move for a new trial under this section. State v. Pieper, 274 Neb. 768, 743 N.W.2d 360 (2008).
At trial, the jury was presented with evidence that a hair of unknown origin had originated, but later fallen, from the belt used to strangle the victim. DNA testing revealed that this hair actually belonged to the defendant and that a hair of unknown origin was located in a knot in the belt. The Nebraska Supreme Court cannot say that had the jury known of this new evidence, it probably would have produced a substantially different result. State v. El-Tabech, 269 Neb. 810, 696 N.W.2d 445 (2005).
A motion could not be brought under this section to compel state-funded DNA testing when the 3-year time period required by section 29-2103 had passed. State v. El-Tabech, 259 Neb. 509, 610 N.W.2d 737 (2000).
The filing of a motion for new trial in a criminal case does not terminate the running of the 30-day period in which a criminal defendant must file a notice of appeal. State v. McCormick and Hall, 246 Neb. 271, 518 N.W.2d 133 (1994).
A motion for new trial made under this section because of (1) irregularity in the proceedings of the court, or the prosecuting attorney, or the witness for the state, or any order of the court, or abuse of discretion by which the defendant was prevented from having a fair trial; (2) misconduct of the jury or prosecuting attorney, or the witnesses for the State; or (3) newly discovered evidence material for the defendant which he could not with reasonable diligence have discovered and produced at the trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed on appeal. State v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993).
The asserted ground for a new trial must affect adversely the substantial rights of the defendant, and it must be shown that he was prejudiced thereby. State v. Tainter, 218 Neb. 855, 359 N.W.2d 795 (1984).
Motion for new trial on ground of accident or surprise properly overruled where no request for continuance made at trial. State v. Mills, 199 Neb. 295, 258 N.W.2d 628 (1977).
Evidence confirming defendant's guilt and not likely to produce different verdict will not support motion for new trial. State v. Costello, 199 Neb. 43, 256 N.W.2d 97 (1977).
Plea of guilty or nolo contendere, made with full knowledge of the charge and the consequences of the plea, cannot be withdrawn in the absence of fraud, mistake, or improper means used in its procurement. State v. Kluge, 198 Neb. 115, 251 N.W.2d 737 (1977).
An order granting probation is a sentence under section 29-2260(4), and for review a motion for new trial must be filed within ten days, but no motion for new trial is required for review of order revoking probation. State v. Mosley, 194 Neb. 740, 235 N.W.2d 402 (1975).
29-2102.
New trial; affidavits; when required; motion; hearing.(1) The grounds set forth in subdivisions (2), (3), and (6) of section 29-2101 shall be supported by affidavits showing the truth of such grounds, and the grounds may be controverted by affidavits. The ground set forth in subdivision (5) of section 29-2101 shall be supported by evidence of the truth of the ground in the form of affidavits, depositions, or oral testimony.
(2) If the motion for new trial and supporting documents fail to set forth sufficient facts, the court may, on its own motion, dismiss the motion without a hearing. If the motion for new trial and supporting documents set forth facts which, if true, would materially affect the substantial rights of the defendant, the court shall cause notice of the motion to be served on the prosecuting attorney, grant a hearing on the motion, and determine the issues and make findings of fact and conclusions of law with respect thereto.
(3) In considering a motion for new trial based on the grounds set forth in subdivision (5) of section 29-2101, if the court finds that there is evidence materially affecting the substantial rights of the defendant which he or she could not with reasonable diligence have discovered and produced at trial, the court may, upon the motion of any party and following a hearing, vacate and set aside the judgment and release the person from custody or grant a new trial as appropriate.
Source:G.S.1873, c. 58, § 492, p. 831; R.S.1913, § 9132; C.S.1922, § 10157; C.S.1929, § 29-2102; R.S.1943, § 29-2102;
Laws 2001, LB 659, § 12; Laws 2015, LB245, § 1.
Annotations
The constitutional right to trial by a fair and impartial jury that is affected by a stranger's presence in the jury room is a substantial right, so when an alternate juror is mistakenly allowed in the jury room during deliberations, without any safeguards in place under section 29-2004, a court has a mandatory duty to conduct an evidentiary hearing to determine the extent and nature of any communications by the alternate or whether the alternate's presence or communications materially influenced the jury. State v. Madren, 308 Neb. 443, 954 N.W.2d 881 (2021).
A de novo standard of review applies when an appellate court is reviewing a trial court's dismissal of a motion for new trial under this section without conducting an evidentiary hearing. State v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017).
Misconduct of county attorney may be sustained by affidavits. Mulder v. State, 152 Neb. 795, 42 N.W.2d 858 (1950).
This section does not apply to newly discovered evidence discovered after adjournment of term. Carlsen v. State, 129 Neb. 84, 261 N.W. 339 (1935).
Facts may be such as to require entire record to be limited to affidavits. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931).
Affidavits must be preserved in form of bill of exceptions to be available to complaining party on appeal. Wright v. State, 45 Neb. 44, 63 N.W. 147 (1895).
29-2103.
New trial; motion; how and when made.(1) A motion for new trial shall be made by written application and may be filed either during or after the term of the court at which the verdict was rendered.
(2) A motion for a new trial shall state the grounds under section 29-2101 which are the basis for the motion and shall be supported by evidence as provided in section 29-2102.
(3) A motion for new trial based on the grounds set forth in subdivision (1), (2), (3), (4), or (7) of section 29-2101 shall be filed within ten days after the verdict was rendered unless such filing is unavoidably prevented, and the grounds for such motion may be stated by directly incorporating the appropriate language of section 29-2101 without further particularity.
(4) A motion for new trial based on the grounds set forth in subdivision (5) of section 29-2101 shall be filed within a reasonable time after the discovery of the new evidence and cannot be filed more than five years after the date of the verdict, unless the motion and supporting documents show the new evidence could not with reasonable diligence have been discovered and produced at trial and such evidence is so substantial that a different result may have occurred.
(5) A motion for new trial based on the grounds set forth in subdivision (6) of section 29-2101 shall be filed within ninety days after a final order is issued under section 29-4123 or within ninety days after the hearing if no final order is entered, whichever occurs first.
Source:G.S.1873, c. 58, § 491, p. 831; Laws 1881, c. 33, § 1, p. 212; R.S.1913, § 9133; C.S.1922, § 10158; C.S.1929, § 29-2103; Laws 1935, c. 65, § 1, p. 223; C.S.Supp.,1941, § 29-2103; R.S.1943, § 29-2103; Laws 1947, c. 104, § 1, p. 293;
Laws 2001, LB 659, § 13; Laws 2015, LB245, § 2.
Annotations
1. Time to be filed
2. Newly discovered evidence
3. Other grounds
4. Miscellaneous
1. Time to be filed
An appellate court does not consider a motion for new trial to the extent that its grounds fail to conform to the statutory requirements of timeliness. State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021).
The law requires diligence on the part of clients and their attorneys, and the mere neglect of either will not entitle a party to relief on that ground. State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021).
Where the record does not support a finding that a defendant was unavoidably prevented from timely filing a motion for new trial based on grounds set forth in subdivisions (1) through (4) or (7) of section 29-2101, such a filing made more than 10 days after the jury returned its verdict has no effect and may not be considered by an appellate court. State v. Avina-Murillo, 301 Neb. 185, 917 N.W.2d 865 (2018).
A motion could not be brought to compel state-funded DNA testing when the 3-year time period required by this section had passed. State v. El-Tabech, 259 Neb. 509, 610 N.W.2d 737 (2000).
This section, by its terms, is mandatory. A motion for new trial not filed in conformity with the statutory requirements as to time may not be considered by an appellate court on review. State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993).
Motion for new trial not filed within ten days after verdict rendered, where no showing made that defendant was unavoidably prevented from doing so, is a nullity. State v. Hawkman, 198 Neb. 578, 254 N.W.2d 90 (1977).
Motion for new trial hereunder must be filed within ten days after verdict, not sentencing. State v. Applegarth, 196 Neb. 773, 246 N.W.2d 216 (1976).
A motion for new trial under this section must be filed within ten days after the verdict is rendered, not from sentencing unless the verdict and sentencing occur on the same day. State v. Betts, 196 Neb. 572, 244 N.W.2d 195 (1976).
A motion for new trial under this section must be filed within ten days after the verdict is rendered, not from date of sentencing. State v. Wood, 195 Neb. 353, 238 N.W.2d 226 (1976).
A motion for new trial hereunder must be filed within ten days after the verdict is rendered not after sentencing. State v. Lacy, 195 Neb. 299, 237 N.W.2d 650 (1976).
An order granting probation is a sentence under section 29-2260(4), and for review a motion for new trial must be filed within ten days, but no motion for new trial is required for review of order revoking probation. State v. Mosley, 194 Neb. 740, 235 N.W.2d 402 (1975).
A motion for new trial in a criminal case must be filed within ten days after rendition of verdict. State v. Losieau, 179 Neb. 54, 136 N.W.2d 168 (1965).
Motion for new trial was timely filed. Kennedy v. State, 170 Neb. 193, 101 N.W.2d 853 (1960).
Defendant was not unavoidably prevented from filing motion for new trial in time prescribed. Stanosheck v. State, 168 Neb. 43, 95 N.W.2d 197 (1959).
In criminal case, motion for new trial must be filed within ten days and amendment thereto cannot thereafter be made. Parker v. State, 164 Neb. 614, 83 N.W.2d 347 (1957).
An objection to a juror raised for first time in second motion for new trial filed fourteen days after filing of first motion for new trial, and containing no showing of newly discovered evidence, is out of time and not ground for new trial. Young v. State, 133 Neb. 644, 276 N.W. 387 (1937).
Provisions limiting time are mandatory. McCoy v. State, 110 Neb. 360, 193 N.W. 716 (1923); Davis v. State, 31 Neb. 240, 47 N.W. 851 (1891).
Motion filed two years after judgment on ground of newly discovered evidence was properly dismissed. Bradshaw v. State, 19 Neb. 644, 28 N.W. 323 (1886).
2. Newly discovered evidence
A former version of subsection (4) of this section, which required a defendant to move for a new trial because of newly discovered evidence within 3 years, did not violate the due process rights of a defendant who alleged the State failed to disclose favorable evidence it had received 5 years after his murder conviction. The defendant did not claim that the favorable evidence was sufficiently compelling to show his actual innocence or that Nebraska's postconviction procedures were inadequate to protect his statutory postconviction rights, and a defendant has no substantive due process right to have the State disclose exculpatory evidence discovered after a final judgment. State v. Harris, 296 Neb. 317, 893 N.W.2d 440 (2017).
Under the former law, a motion for postconviction relief could not be used to obtain, outside of the 3-year time limitation under subsection (4) of this section, what is essentially a new trial based on newly discovered evidence. State v. Phelps, 286 Neb. 89, 834 N.W.2d 786 (2013).
New evidence tendered in support of a motion for a new trial on the grounds of newly discovered evidence must be so potent that by strengthening evidence already offered, a new trial would probably result in a different verdict. State v. Seger, 191 Neb. 760, 217 N.W.2d 828 (1974).
Motion for new trial upon ground of newly discovered evidence in criminal case may be made within three years of the date of the verdict. Smith v. State, 167 Neb. 492, 93 N.W.2d 499 (1958).
To require granting of new trial, newly discovered evidence must be of such nature as to probably change the verdict. Ysac v. State, 167 Neb. 24, 91 N.W.2d 49 (1958).
Granting or refusal of new trial upon the ground of newly discovered evidence depends upon the facts and circumstances of each case. Severin v. State, 148 Neb. 617, 28 N.W.2d 326 (1947).
In criminal case, new trial will be granted for newly discovered evidence which is competent, material and credible, which might have changed result of trial, and which exercise of due diligence could not have discovered and produced at trial. Duffey v. State, 124 Neb. 23, 245 N.W. 1 (1932).
Pursuant to subsection (4) of this section, a motion for new trial based on newly discovered evidence under section 29-2101(5) must be filed within 3 years of the date of the verdict. State v. Luff, 18 Neb. App. 422, 783 N.W.2d 625 (2010).
Pursuant to subsection (4) of this section, the appellate court was without jurisdiction to consider the assignment of error relating to the denial of a motion for new trial in a reinstated direct appeal, where only the direct appeal was reinstated and the defendant did not timely file a notice of appeal following the denial of his motion for new trial based on newly discovered evidence. State v. Luff, 18 Neb. App. 422, 783 N.W.2d 625 (2010).
Newly discovered evidence offered in support of a motion for new trial must be such that, by strengthening the evidence already offered, a new trial would probably result in a different verdict. State v. Edwards, 2 Neb. App. 149, 507 N.W.2d 506 (1993).
3. Other grounds
This court will not consider any error not presented below by motion for new trial where trial court had power to correct. State v. Beans, 199 Neb. 807, 261 N.W.2d 749 (1978).
This and other sections provide for redress by trial court, and review by Supreme Court, of trial errors challenged by motion for new trial. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931).
Evidence adduced on hearing, to be available on review, must be incorporated in bill of exceptions. Holt v. State, 62 Neb. 134, 86 N.W. 1073 (1901).
Misconduct of juror, to be available on review, must be presented by record and assigned as error in motion. Bush v. State, 62 Neb. 128, 86 N.W. 1062 (1901).
Assignments for failure to give group of instructions is considered no further when it is ascertained that refusal to give any one was proper. Thompson v. State, 44 Neb. 366, 62 N.W. 1060 (1895).
Errors occurring during trial, to be reviewable, must be assigned in motion and ruling obtained thereon. Wilson v. State, 43 Neb. 745, 62 N.W. 209 (1895).
Assignment in language of statute is sufficient. McNamee v. State, 34 Neb. 288, 51 N.W. 821 (1892).
Motion is indivisible and where made jointly by several parties, if it cannot be allowed as to all, must be overruled as to all. Dutcher v. State, 16 Neb. 30, 19 N.W. 612 (1884).
4. Miscellaneous
"Unavoidably prevented" as used in subsection (3) of this section refers to circumstances beyond the control of the party filing the motion for new trial. State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021).
"Unavoidably prevented" as used in this section refers to circumstances beyond the control of the party filing the motion for new trial. State v. Thompson, 246 Neb. 752, 523 N.W.2d 246 (1994).
This section is constitutional and does not violate the concepts of due process. State v. Kelley, 198 Neb. 805, 255 N.W.2d 840 (1977).
Where presiding judge is unavoidably prevented from ruling on motion for new trial, another judge may perform that duty. Hauser v. State, 101 Neb. 834, 166 N.W. 245 (1917).
Decision of trial judge permitted to stand if evidence on which it rests is fairly conflicting. Russell v. State, 66 Neb. 497, 92 N.W. 751 (1902).
Motion properly dealt with as entirety; it is not error to overrule if it cannot be sustained in form presented. Reed v. State, 66 Neb. 184, 92 N.W. 321 (1902).
Failure to file motion is not sufficient cause for dismissing petition in error. Rhea v. State, 61 Neb. 15, 84 N.W. 414 (1900).
District judge may hear motion in case wherein judge of another district presided. Lauder v. State, 50 Neb. 140, 69 N.W. 776 (1897).
Supreme Court, as court of equity, cannot grant new trial in criminal cases instituted before it. Paulson v. State, 25 Neb. 344, 41 N.W. 249 (1889).
The trial court properly overruled the defendant's motion for new trial because the defendant filed the motion more than 10 days after the verdict and because the defendant's newly discovered evidence was cumulative and only went to the credibility of a witness. State v. Egger, 8 Neb. App. 740, 601 N.W.2d 785 (1999).
This section does not abolish the writ of error coram nobis. Hawk v. Jones, 160 F.2d 807 (8th Cir. 1947).
29-2104.
Arrest of judgment; grounds.A motion in arrest of judgment may be granted by the court for either of the following causes: (1) That the grand jury which found the indictment had no legal authority to inquire into the offense charged, by reason of it not being within the jurisdiction of the court; or (2) that the facts stated in the indictment do not constitute an offense.
Source:G.S.1873, c. 58, § 493, p. 831; R.S.1913, § 9134; C.S.1922, § 10159; C.S.1929, § 29-2104; R.S.1943, § 29-2104.
Annotations
Challenge to certainty and particularity of information which states an offense in the words of the statute may be made by a motion to quash, but not by a motion in arrest of judgment. State v. Abraham, 189 Neb. 728, 205 N.W.2d 342 (1973).
A defendant who pleads not guilty without having raised the question of the lack of or a defective verification waives the defect. State v. Gilman, 181 Neb. 390, 148 N.W.2d 847 (1967).
Striking motion in arrest of judgment from files instead of overruling it was not prejudicial error. Kopp v. State, 124 Neb. 363, 246 N.W. 718 (1933).
Motion in arrest of judgment should be sustained when information is insufficient to charge offense under statute. Korab v. State, 93 Neb. 66, 139 N.W. 717 (1913).
Selection of jury from old list prepared during preceding year was not a ground for motion in arrest of judgment, where plea in abatement was filed raising question but ruling thereon was not obtained. Goldsberry v. State, 92 Neb. 211, 137 N.W. 1116 (1912).
Sufficiency of information which charges no offense may be challenged, though plea of guilty was entered. Smith v. State, 68 Neb. 204, 94 N.W. 106 (1903).
Motion applies only to jurisdiction of court and sufficiency of indictment. Dodge v. People, 4 Neb. 220 (1876).
29-2105.
Arrest of judgment; defect of form insufficient.No judgment can be arrested for a defect of form.
Source:G.S.1873, c. 58, § 494, p. 832; R.S.1913, § 9135; C.S.1922, § 10160; C.S.1929, § 29-2105; R.S.1943, § 29-2105.
Annotations
A defendant who pleads not guilty without having raised the question of the lack of or a defective verification waives the defect. State v. Gilman, 181 Neb. 390, 148 N.W.2d 847 (1967).
29-2106.
Arrest of judgment; effect.The effect of allowing a motion in arrest of judgment shall be to place the defendant in the same position with respect to the prosecution as before the indictment was found. If, from the evidence on the trial, there shall be sufficient reason to believe him guilty of an offense, the court shall order him to enter into a recognizance with sufficient security, conditioned for his appearance at the first day of the next term of the same court; otherwise the defendant shall be discharged.
Source:G.S.1873, c. 58, § 494, p. 832; R.S.1913, § 9135; C.S.1922, § 10160; C.S.1929, § 29-2105; R.S.1943, § 29-2106.
29-2201.
Verdict of guilty; accused to be notified before sentence.Before the sentence is pronounced, the defendant must be informed by the court of the verdict of the jury, and asked whether he has anything to say why judgment should not be passed against him.
Source:G.S.1873, c. 58, § 495, p. 832; R.S.1913, § 9136; C.S.1922, § 10161; C.S.1929, § 29-2201; R.S.1943, § 29-2201.
Annotations
1. Nature and purpose of allocution
2. Miscellaneous
1. Nature and purpose of allocution
A defendant must be afforded a forum and the right to question the constitutional propriety of the information utilized by the sentencing judge, to present countervailing information, and to test, question, or refute the relevance of information on which the judge may rely in determining the sentence to be imposed. State v. Pereira, 284 Neb. 982, 824 N.W.2d 706 (2013).
Allocution is an opportunity to address the court, not to speak to spectators in attendance. State v. Pereira, 284 Neb. 982, 824 N.W.2d 706 (2013).
Allocution is an unsworn statement from a convicted defendant to the sentencing judge in which the defendant can ask for mercy, explain his or her conduct, apologize for the crime, or say anything else in an effort to lessen the impending sentence. State v. Pereira, 284 Neb. 982, 824 N.W.2d 706 (2013).
The time of imposition of sentence is not a public forum to be used by either a defendant or his or her attorney for that purpose. State v. Pereira, 284 Neb. 982, 824 N.W.2d 706 (2013).
A sentencing court is not required to use the specific words set out in the statute in conducting an allocution as long as defendant is afforded an opportunity to offer comments as to why judgment should not be passed against him. State v. Dethlefs, 239 Neb. 943, 479 N.W.2d 780 (1992).
Criminal defendant has a statutory right to allocution before sentencing, during which he is to be informed by court of verdict and asked whether he has anything to say why judgment should not be passed, providing an opportunity for defendant and counsel to contest any disputed factual basis for sentence. State v. Dunn, 14 Neb. App. 144, 705 N.W.2d 246 (2005).
2. Miscellaneous
Sentence vacated because defendant not present at sentencing even though his absence was by choice. State v. Ernest, 200 Neb. 615, 264 N.W.2d 677 (1978).
Error held not prejudicial. State v. Brockman, 184 Neb. 435, 168 N.W.2d 367 (1969).
Court is not required to delay imposition of sentence until statutory time for filing motion for new trial has expired. Young v. State, 155 Neb. 261, 51 N.W.2d 326 (1952).
Where record fails to show affirmatively that court, before pronouncing sentence, informed defendant that he had been found guilty, and record shows nothing to contrary, presumption is such information was given. Kopp v. State, 124 Neb. 363, 246 N.W. 718 (1933); Taylor v. State, 86 Neb. 795, 126 N.W. 752 (1910).
Section is mandatory; if not complied with, cause will be remanded. Evers v. State, 84 Neb. 708, 121 N.W. 1005 (1909); McCormick v. State, 66 Neb. 337, 92 N.W. 606 (1902).
Confinement of prisoner under sentence of death, from date of sentence to day of execution, is no part of sentence. McGinn v. State, 46 Neb. 427, 65 N.W. 46 (1895).
Judge is not limited to this one question; cannot coerce answer. Tracey v. State, 46 Neb. 361, 64 N.W. 1069 (1895).
29-2202.
Verdict of guilty; judgment; when pronounced; suspension of sentence; when; bail.Except as provided in sections 29-2292 to 29-2294 or 29-4801 to 29-4804, if the defendant has nothing to say, or if he or she shows no good and sufficient cause why judgment should not be pronounced, the court shall proceed to pronounce judgment as provided by law. The court, in its discretion, may for any cause deemed by it good and sufficient, suspend execution of sentence for a period not to exceed ninety days from the date judgment is pronounced. If the defendant is not at liberty under bail, he or she may be admitted to bail during the period of suspension of sentence as provided in section 29-901.
Source:G.S.1873, c. 58, § 496, p. 832; R.S.1913, § 9137; C.S.1922, § 10162; C.S.1929, § 29-2202; R.S.1943, § 29-2202; Laws 1951, c. 87, § 2, p. 251;
Laws 2019, LB686, § 6; Laws 2024, LB253, § 9. Operative Date: July 1, 2025
Annotations
1. Sentence of defendant
2. Suspension of execution of sentence
3. Power of court
4. Miscellaneous
1. Sentence of defendant
Sentence vacated because defendant not present at sentencing even though his absence was by choice. State v. Ernest, 200 Neb. 615, 264 N.W.2d 677 (1978).
In absence of showing of prejudice, it is not error to sentence defendant before time for filing motion for new trial has expired. Young v. State, 155 Neb. 261, 51 N.W.2d 326 (1952).
Where conviction is had on each of separate counts charging same offense, single sentence is rendered upon all counts for one entire offense. Yeoman v. State, 81 Neb. 244, 115 N.W. 784 (1908).
Judgment imposing sentence will not be interfered with as being excessive in absence of clear abuse of discretion. Wright v. State, 45 Neb. 44, 63 N.W. 147 (1895); Morrison v. State, 13 Neb. 527, 14 N.W. 475 (1882).
Separate sentence should be passed on each count of indictment charging separate misdemeanors of same kind upon which defendant is found guilty. Burrell v. State, 25 Neb. 581, 41 N.W. 399 (1889).
2. Suspension of execution of sentence
Question raised but not decided as to authority of justice of peace to suspend execution of sentence beyond ninety days. Stuckey v. Rohnert, 179 Neb. 727, 140 N.W.2d 9 (1966).
3. Power of court
Ineffectual attempt of district court to pass judgment according to provision of law does not deprive that court of power to pass valid judgment. McCormick v. State, 71 Neb. 505, 99 N.W. 237 (1904).
Within limits fixed by statute, term of imprisonment rests with trial court. Geiger v. State, 6 Neb. 545 (1877).
4. Miscellaneous
A sentence validly imposed takes effect from the time it is pronounced, and a subsequent, different sentence is a nullity. State v. Kinney, 217 Neb. 701, 350 N.W.2d 552 (1984).
Failure to comply with this section does not affect the jurisdiction of the court, and is not ground for release on habeas corpus. Dunham v. O'Grady, 137 Neb. 649, 290 N.W. 723 (1940).
In recording judgment, clerk should follow substantially formal language of court. Preuit v. The People, 5 Neb. 377 (1877).
29-2203.
Defense of not responsible by reason
of insanity; how pleaded; burden of proof; notice before trial; examination
of defendant; acquittal; further proceedings.(1) Any person prosecuted
for an offense may plead that he or she is not responsible by reason of insanity
at the time of the offense and in such case the burden shall be upon the defendant
to prove the defense of not responsible by reason of insanity by a preponderance
of the evidence. No evidence offered by the defendant for the purpose of establishing
his or her insanity shall be admitted in the trial of the case unless notice
of intention to rely upon the insanity defense is given to the county attorney
and filed with the court not later than sixty days before trial.
(2) Upon the filing of the notice the court, on motion of the state, may order the
defendant to be examined at a time and place designated in the order, by one
or more qualified experts, appointed by the court, to inquire into the sanity
or insanity of the defendant at the time of the commission of the alleged
offense. The court may order that the examination be conducted at one of the
regional centers or at any appropriate facility. The presence of counsel at
the examination shall be within the discretion of the court. The results of
such examination shall be sent to the court and to the prosecuting attorney.
In misdemeanor or felony cases, the defendant may request the court to order
the prosecuting attorney to permit the defendant to inspect and copy the results
of such examination pursuant to the procedures set forth in sections 29-1912
to 29-1921. In the interest of justice and good cause shown the court may
waive the requirements provided in this section.
(3) If the trier of fact acquits the defendant on the grounds of insanity, the verdict
shall reflect whether the trier acquits him or her on that ground alone or
on other grounds as well. When the defendant is acquitted solely on the ground
of insanity, the court shall have exclusive jurisdiction over the defendant
for disposition consistent with the terms of this section and sections 29-3701
to 29-3704.
(4) For purposes of this section, insanity does not include any temporary condition that was proximately
caused by the voluntary ingestion, inhalation, injection, or absorption of
intoxicating liquor, any drug or other mentally debilitating substance, or
any combination thereof.
Source:Laws 1909, c. 74, § 1, p. 333; R.S.1913, § 9139; C.S.1922, § 10164; C.S.1929, § 29-2204; R.S.1943, § 29-2203;
Laws 1973, LB 501, § 1; Laws 1976, LB 806, § 17;
Laws 1981, LB 213, § 2; Laws 1984, LB 183, § 1; Laws 2011, LB100, § 2.
Cross References
Constitutional provisions:
Due process, see Article I, section 3, Constitution of Nebraska.
Acquittal on grounds of insanity, special procedures, see sections 29-3701 to 29-3706.
Escape from treatment facility or program, effect, see section 71-939.
Mental Health Commitment Act, Nebraska, see section 71-901.
Annotations
1. Generally
2. Burden of proof
3. Constitutionality
4. Miscellaneous
1. Generally
Any person prosecuted for an offense may plead that he or she is not responsible by reason of insanity at the time of the offense. State v. John, 310 Neb. 958, 969 N.W.2d 894 (2022).
Generally, under Nebraska's common-law definition, the insanity defense requires proof that (1) the defendant had a mental disease or defect at the time of the crime and (2) the defendant did not know or understand the nature and consequences of his or her actions or that he or she did not know the difference between right and wrong. State v. John, 310 Neb. 958, 969 N.W.2d 894 (2022).
2. Burden of proof
A defendant who pleads that he or she is not responsible by reason of insanity has the burden to prove the defense by a preponderance of the evidence. State v. John, 310 Neb. 958, 969 N.W.2d 894 (2022).
A defendant who pleads that he or she is not responsible by reason of insanity has the burden to prove the defense by a preponderance of the evidence. The fact that a defendant has some form of mental illness or defect does not by itself establish insanity. State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2002).
3. Constitutionality
This section does not violate either the U.S. or Nebraska Constitution. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).
The portion of this section which places the burden upon the defendant to prove insanity by a preponderance of the evidence does not violate the due process clause of the 14th amendment to the U.S. Constitution or Nebraska's due process clause, Neb. Const. art. I, sec. 3. State v. Hankins, 232 Neb. 608, 441 N.W.2d 854 (1989).
4. Miscellaneous
The defendant's filing of a notice of intention to rely upon an insanity defense under this section preserved his right to present evidence as to his sanity at trial, but it did not require the trial court to make any determination regarding the defendant's sanity before trial, and it did not preclude the trial court from accepting the defendant's waiver of his right to trial when he entered his no contest pleas. State v. Warner, 312 Neb. 116, 977 N.W.2d 904 (2022).
When a defendant pleads the defense of insanity and offers evidence on that issue, the plea is an implicit, although not legally operative, admission of the State's charges. The defense of temporarily diminished mental capacity exists separately and in addition to the defense of insanity. A trial court need not specially instruct the jury regarding the defense of diminished capacity if the court has otherwise properly instructed the jury regarding the intent which is an element of the crime charged. State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999).
Because this statute grants trial courts the discretion to allow or deny counsel's presence at court-ordered psychiatric or psychological examinations of criminal defendants, it implicitly requires that defense counsel be notified of such an order issued ex parte prior to its taking effect so that defense counsel can present arguments to the court regarding counsel's presence at the examination; otherwise, the court's exercise of discretion in allowing or denying the presence of counsel at the examination would be unguided. A trial court's erroneous failure to notify defense counsel of an ex parte, court-ordered examination prior to such examination is harmless when defense counsel receives a copy of the expert examiner's report as soon as the state receives such a copy, and the defense has adequate opportunities to depose the expert examiner; hence, admission of the expert examiner's testimony and the denial of defense counsel's motions for continuance and a new trial are not reversible errors. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).
Insanity is a jury question. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).
Mental examination by state of defendant not authorized by this section unless defendant has pleaded not guilty by reason of insanity. State v. Vosler, 216 Neb. 461, 345 N.W.2d 806 (1984).
29-2204.
Sentence for felony other than Class III, IIIA, or IV felony; court; duties; study of offender; when; defendant under eighteen years of age; disposition.(1) Except when a term of life imprisonment is required by law, in imposing a sentence upon an offender for any class of felony other than a Class III, IIIA, or IV felony, the court shall fix the minimum and the maximum terms of the sentence to be served within the limits provided by law. The maximum term shall not be greater than the maximum limit provided by law, and:
(a) The minimum term fixed by the court shall be any term of years less than the maximum term imposed by the court; or
(b) The minimum term shall be the minimum limit provided by law.
(2) When a maximum term of life is imposed by the court for a Class IB felony, the minimum term fixed by the court shall be:
(a) Any term of years not less than the minimum limit provided by law; or
(b) A term of life imprisonment.
(3) When a maximum term of life is imposed by the court for a Class IA felony, the minimum term fixed by the court shall be:
(a) A term of life imprisonment; or
(b) Any term of years not less than the minimum limit provided by law after consideration of the mitigating factors in section 28-105.02, if the defendant was under eighteen years of age at the time he or she committed the crime for which he or she was convicted.
(4) When the court is of the opinion that imprisonment may be appropriate but desires more detailed information as a basis for determining the sentence to be imposed than has been provided by the presentence report required by section 29-2261, the court may commit an offender to the Department of Correctional Services. During that time, the department shall conduct a complete study of the offender as provided in section 29-2204.03.
(5) Except when a term of life is required by law, whenever the defendant was under eighteen years of age at the time he or she committed the crime for which he or she was convicted, the court may, in its discretion, instead of imposing the penalty provided for the crime, make such disposition of the defendant as the court deems proper under the Nebraska Juvenile Code.
(6)(a) When imposing an indeterminate sentence upon an offender under this section, the court shall:
(i) Advise the offender on the record the time the offender will serve on his or her minimum term before attaining parole eligibility assuming that no good time for which the offender will be eligible is lost; and
(ii) Advise the offender on the record the time the offender will serve on his or her maximum term before attaining mandatory release assuming that no good time for which the offender will be eligible is lost.
(b) If any discrepancy exists between the statement of the minimum limit of the sentence and the statement of parole eligibility or between the statement of the maximum limit of the sentence and the statement of mandatory release, the statements of the minimum limit and the maximum limit shall control the calculation of the offender's term.
(c) If the court imposes more than one sentence upon an offender or imposes a sentence upon an offender who is at that time serving another sentence, the court shall state whether the sentences are to be concurrent or consecutive.
Source:G.S.1873, c. 58, § 498, p. 832; R.S.1913, § 9140; C.S.1922, § 10165; C.S.1929, § 29-2205; R.S.1943, § 29-2204;
Laws 1974, LB 620, § 7; Laws 1988, LB 790, § 3; Laws 1993, LB 31, § 9; Laws 1993, LB 529, § 1; Laws 1993, LB 627, § 1; Laws 1994, LB 988, § 8; Laws 1995, LB 371, § 12; Laws 1997, LB 364, § 14; Laws 1998, LB 1073, § 10; Laws 2002, Third Spec. Sess., LB 1, § 8; Laws 2011, LB12, § 2; Laws 2013, LB561, § 2; Laws 2015, LB268, § 19;