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
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.]
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]
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
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
for the same offense. Usually filed in District Court after a felony has
been bound over from County Court.
Motion to discharge. On speedy trial grounds. Prejudice to the defendant need not be
interlocutory appeal when evidence is successfully suppressed. [Neb. Rev. Stat. § 29- 824]
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
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 Daubert/Schafersman hearing. Hearing regarding the admissibility of an expert witness’
testimony, scientific or not. [Daubert v. Merrell Dow
Motion for Deposition. Used to depose witnesses. Only available in state felony cases. [Neb. Rev. Stat. § 29-1917]
Motion for disclosure of
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
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
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 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
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
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
May affect a defendant’s ability to receive a fair trial.
Motion to produce
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
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
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
Motion to suppress statements of
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
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.
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
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
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
[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.]
Written arraignment and waiver of physical appearance. We waive the defendant’s right to appear at
arraignment. [Neb. Rev. Stat. § 29-4206]