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.
Source:Laws 1969, c. 235, § 2, p. 868; Laws 1983, LB 110, § 2.
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).