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Understanding Nebraska Criminal Defense Terms

Posted By Berry Law Firm || 10-Jan-2017

When a client comes to see us, they often just want to solve a problem. Most persons charged with crimes are more concerned about their reputation, time, and money than the mechanics of the Nebraska judicial system. However, there are moments in every case in which a client needs to understand exactly what is going on.

We often work with out-of-state attorneys in serious felony and federal cases who have clients in Nebraska. While federal criminal defense terms and procedures are usually familiar to out-of-state attorneys, Nebraska’s terms and procedures often differ from those of other states.

We consolidated the information below to define Nebraska criminal defense terms and procedures to both the accused and/or out-of-state attorneys:

Application for Pardon. The board of pardons may pardon a criminal conviction. The board generally will not consider pardoning a misdemeanor until three years have passed or a felony until 10 years have passed. [Nebr. Const. Art. IV-13.]

Demand for jury trial. Statutory right to jury trial on Class I Misdemeanors and above. No right to jury trial for infractions. For non-Class I misdemeanors, demand must be made within 10 days of non-guilty

plea. [Supr. Ct. Rule § 6-1423; Neb. Rev. Stat. §§ 25-2705, 29-437] There is also a constitutional right to a jury trial under the 6th and 14th amendments for crimes punishable by more than six months. [Duncan v. Louisiana, 391 U.S. 145 (1968)]

Entry of appearance. We inform the court that we represent the client.

Entry of plea. This is a form we use to say “Not Guilty” for our clients in courts that allow arraignment waiver forms.

Examination and hearing on competency. Used when it appears that the defendant is not mentally

competent to stand trial. [Neb. Rev. Stat. § 29-1823]

Interlocutory appeals:

Defense:

Motion to test the validity of an indictment. In the rare case that a grand jury is used to indict the defendant, the District Court may dismiss the indictment if a grand jury finding of probable cause is not supported by the record. [Neb. Rev. Stat. § 29-1418

Exceptions to indictment. Neb. Rev. Stat. § 29-1806]

Motion to quash. When there is a defect apparent on the face of the record, including defects in the form of the indictment in the way an offense is charged. [Neb. Rev. Stat. § 29-1808]

Plea in abatement. When there is a defect in the record shown by facts extrinsic thereto. Usually Filed in District Court after a felony is bound over from County Court. Claiming insufficiency of the evidence at the preliminary hearing to show probable cause. To preserve this argument for the record, the defendant must stand mute at his arraignment in District Court. [Neb. Rev. Stat. § 29-1809] Furthermore, the Plea in abatement must be signed by client and notarized.

Demurrer to indictment. The facts 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. [Neb. Rev. Stat. § 29-1810]

Plea in bar. The defendant has already been tried, acquitted, punished or pardoned

for the same offense. Usually filed in District Court after a felony has been bound over from County Court. Defendant must stand mute at his District Court arraignment to preserve this argument for the record. [Neb. Rev. Stat. § 29-1817]

Motion to discharge. On speedy trial grounds. Prejudice to the defendant need not be show for a statutory speedy trial claim. [Neb. Rev. Stat. § 29-1207, Williams 277 Neb. 133 (2009). See also 6th Amendment right to a speedy trial: Barko v. Wingo, 407 U.S. 514 (1972), Doggett v. United States 505 U.S. 647 (1992), Zedner v. United States, 547 U.S. 489 (2006)]

Prosecution:

Summary review of motion to suppress evidence. Prosecution has 10 days to file an

interlocutory appeal when evidence is successfully suppressed. [Neb. Rev. Stat. § 29- 824]

Summary review of motion to suppress statements. Prosecution has 10 days to file an

interlocutory appeal when statements are successfully suppressed. [Neb. Rev. Stat. § 29-116]

Motion for a new trial. Must be filed within 10 days after the verdict, unless unavoidably prevented,

or within a reasonable time after discovery of new evidence, not to exceed 5 years after verdict, with exceptions. [Neb. Rev. Stat. § 29-2101 et al.]

Motion for bill of particulars. Used for questioning the dates or facts in an information. However, state case law has held that for questioning the adequacy of an information, a motion to quash is the proper avenue. [State v. Case, 4 Neb.App. 885 (1996)]

Motion for bond review. Asking the court to modify a condition of bond. This usually means asking the judge to reduce the bond for an incarcerated defendant, or asking Court to lift a no-contact order. [Neb. Rev. Stat. § 29-901.01]

Motion for Daubert/Schafersman hearing. Hearing regarding the admissibility of an expert witness’

testimony, scientific or not. [Daubert v. Merrell Dow Parmaceuticals, 509 U.S. 579 (1993); Schafersman v. Agland Coop, 262 Neb. 215 (2001)]

Motion for Deposition. Used to depose witnesses. Only available in state felony cases. [Neb. Rev. Stat. § 29-1917]

Motion for disclosure of intention to use evidence of other crimes, wrongs, or acts. Prior bad acts are

inadmissible to show character. They are also inadmissible if a defendant acted in conformity. They may be admissible to motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. If the evidence is against the defendant, it must be proved by clear and convincing evidence. [Neb. Rev. Stat. § 27-404(2), (3)]

Motion for disclosure of intention to use evidence of prior convictions. Used to impeach a witness,

limited to felonies if within the last 10 years, or to crimes involving dishonesty or a false statement. [Neb. Rev. Stat. §§ 27-609, 27-104(3)]

Motion for discovery. The prosecution must provide us with the evidence they are using against the client if we ask for it. [See Neb. Rev. Stat. § 29-1912]

Motion to produce evidence for inspection. We want to inspect the evidence.

Motion to compel production of evidence. We believe there is evidence not yet provided to us; the state is required to provide it to us.

Motion for disclosure and production of exculpatory evidence. A constitutional discovery right requesting exculpatory or impeaching evidence material to the guilt, innocence, or punishment of the defendant. [Brady v. Maryland, 373 U.S. 83 (1963)]

Motion for drug dog records. Used to question the dog’s reliability and conduct cross-examination

on the handler. Mandatory when the government seeks to rely on a drug dog alert as the evidentiary basis for a search. [United States v. Cortez-Rocha, 394 F3d 1115, 1118 n.1, (9th Cir. 2005)]

Motion for extension. Used to request additional time to file a brief or pre-trial motions.

Motion for Jackson v. Denno Hearing. A defendant has a constitutional right to suppress coerced statements, irrespective of the statements’ truth or falsity. [Jackson v. Denno, 378 U.S. 368 (1964)] In federal court, this is more commonly covered under a motion to suppress statements.

Motion for post-conviction relief. Used when a prisoner in custody under sentence claims a right to be

released on the grounds that there was a denial or infringement of his rights as to render the judgment void or voidable under the State Constitution or the United States Constitution. Must be filed within one year of sentencing or mandate from the Appellate Court, or within one year of newly discovered evidence. [Neb. Rev. Stat. 29-3001 et al.]

Motion for production of medical records (Trammell motion). The Court may review privileged

medical mental health information in camera. If there are reasonable grounds to believe that failure to produce the information is likely to impair the defendant’s right to confrontation, the witness’ direct testimony should be stricken. [State v. Trammell, 231 Neb. 137 (1999)]

Motion for scientific testing. Allows the defense to test the evidence with its own experts. [Neb. Rev. Stat. § 29-1913]

Motion for sequestration of witnesses. The judge may order witnesses excluded so that they cannot

hear the testimony of other witnesses. This does not allow the exclusion of a party or a person shown by a party to be essential to the presentation of his case. [Neb. Rev. Stat. § 27-615]

Motion for supplemental juror questionnaires. A request that the court send additional questions to potential jurors beyond the standard questionnaires. These are common in high profile cases or more serious felony cases such as murder and sexual assault.

Motion in limine. A request for a hearing on admissibility of evidence prior to trial. [Neb. Rev. Stat. § 27-103]

Motion to continue. Must be for good cause. [Neb. Rev. Stat. § 29-1206] Inform the court whether either side has requested any previous continuances and whether opposing counsel is unopposed to the motion (this means one has to call opposing counsel and ask whether they are opposed to a continuance).

Motion to enlarge time to file. We need more time to file pretrial motions.

Motion to file under seal. When the motion contains sensitive information or information that should

not be released to the public. Frequently used when naming a victim or minor.

Motion to permit defendant to appear in civilian clothing. Appearing in prison garb in front of the jury

May affect a defendant’s ability to receive a fair trial.

Motion to produce statement of defendant and names of eyewitnesses. Must be filed 10 days before

trial or at the date of arraignment, whichever is later. [Neb. Rev. Stat. § 29-1922]

Motion to remove restraints. Appearing in restraints in front of the jury may affect a defendant’s ability to receive a fair trial. This motion requests the court order courtroom security to remove the incarcerated defendant’s handcuffs and ankle restraints during the trial

Motion to set aside conviction. If a defendant is sentenced to a fine or served probation, his conviction may be set aside by the court. [Neb. Rev. Stat. § 29-2264]

Motion to Sever. Used if the defendant or state would be prejudiced if multiple criminal charges or defendants were tried together. [Neb. Rev. Stat. § 29-2002]

Motion to suppress. Motion to suppress evidence collected in violation of a defendant’s constitutional

or statutory rights. [Neb. Rev. Stat. § 29-822 et al.] Must be filed 10 days prior to trial in state court. Must be filed in accordance with progression order in federal court (usually 30 days after arraignment).

Motion to suppress identification of defendant. Used to question the constitutionality of a police

show-up if the show-up was unnecessarily suggestive and/or if the resulting identification is unreliable. [State v. Jones, 286 Neb. 932 (2013)] Also, an out-of-court identification/line-up is hearsay.

Note: during a motion to suppress an illegal traffic stop you can move to suppress the identity of your client. This can be effective in illegal-reentry and Driving Under Suspension cases.

Motion to suppress statements of defendant. A motion to suppress involuntary statements, or

statements taken in violation of the defendant’s 5th or 6th amendment rights. [Neb. Rev. Stat. § 29-115 et al.]

Motion to transfer presentence investigation report. A motion to transfer the PSI from the trial court

to the appellate court, when it is imperative that the PSI be made part of the appeal record. [Neb. Rev. Stat. § 29-2261]

Motion to vacate and set aside order of discharge from probation. Used to question the defendant’s

discharge from probation. [Neb. Rev. Stat. § 29-2264]

Motion to waive jurisdiction to the separate juvenile court. The District Court and the Juvenile Court

have concurrent jurisdiction for minors, and we want the case tried in Juvenile Court. [Neb. Rev. Stat. § 43-247]

Motion to withdraw. Usually used when there is a conflict of interest and the attorney can no longer

ethically represent the client.

Notice of intent to appeal. To obtain a reversal, vacation, or modification of judgments and decrees.

Appeal must be perfected within 30 days of the sentence. [From County or Juvenile Court to District Court: Neb. Rev. Stat. § 29-1901 From District Court to Appellate Court: Neb. Rev. Stat. § 25-1911]

Notice of intention to rely on alibi. Must be filed with the court at least thirty days before trial. [Neb. Rev. Stat. § 29-1927]

Notice of intention to rely on insanity defense. [Neb. Rev. Stat. § 29-2203]

Petition for Writ of Mandamus. A petition requesting an order from a superior court to any subordinate court or public authority. In Nebraska, the Supreme Court has exclusive jurisdiction over this writ. Only to be used when there is no adequate remedy at law. It cannot be used to coerce judicial discretion. [Neb. Rev. Stat. § 25-2156 et al. See also Definition of a final order, Neb. Rev. Stat. § 25-1902; Motion to alter or amend a judgement, Neb. Rev. Stat. § 25-1329]

Plea by Waiver. Some Nebraska courts will allow a defendant to plead guilty by waiver if the prosecutor agrees to recommend a fine. For example, a defendant who is initially charged with felony possession of marijuana and gets the charge reduced to an infraction or misdemeanor possession charge may be able to plead guilty by waiver and pay a fine without needing to appear in court. This is most beneficial to out-of-state clients.

Praecipe for bill of exceptions. The bill of exceptions must be provided to the superior court in order to

appeal. [Neb. Rev. Stat. § 29-2020]

Praecipe for Subpoena. Used to compel a witness to appear in court. [Neb. Rev. Stat. § 29-1901]

Praecipe for Subpoena Duces Tecum. Used to compel a witness to bring documents or items to

court.

Praecipe for transcript. The transcript must be provided to the superior court in order to appeal.

[Neb. Rev. Stat. § 29-509]

Waiver of jury trial. We want a bench trial before the judge. Usually part of a deal with the prosecution.

Waiver of preliminary hearing. Preliminary hearings are only granted in felony cases. Used when we do not dispute that the prosecution has probable cause to accuse the defendant of the crime. After waiving the preliminary hearing, the defendant is bound over to District Court. [Neb. Rev. Stat. § 29-504 et al.]

Waiver of speedy trial. In Nebraska state courts, trial must be held within 6 months barring defense continuances, absences, good cause, and other exceptions listed. For statutory speedy trial considerations, prejudice to the defendant need not be shown. [Neb. Rev. Stat. § 29-1205 et al. See interlocutory appeals, motion to discharge]

Written arraignment and waiver of physical appearance. We waive the defendant’s right to appear at

arraignment. [Neb. Rev. Stat. § 29-4206]

Categories: Criminal Defense