NE Code § 29-2101 (2021)
2021 Nebraska Revised Statutes|Chapter 29 - Criminal Procedure|29-2101 - New trial; grounds.

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 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 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).