NE Code § 29-4120 (2021)
2021 Nebraska Revised Statutes|Chapter 29 - Criminal Procedure|29-4120 - DNA testing; procedure.

29-4120.  DNA testing; procedure.(1) Notwithstanding any other provision of law, a person in custody pursuant to the judgment of a court may, at any time after conviction, file a motion, with or without supporting affidavits, in the court that entered the judgment requesting forensic DNA testing of any biological material that:(a) Is related to the investigation or prosecution that resulted in such judgment;(b) Is in the actual or constructive possession or control of the state or is in the possession or control of others under circumstances likely to safeguard the integrity of the biological material's original physical composition; and(c) Was not previously subjected to DNA testing or can be subjected to retesting with more current DNA techniques that provide a reasonable likelihood of more accurate and probative results.(2) Notice of such motion shall be served by the person in custody upon the county attorney of the county in which the prosecution was held.(3) Upon receiving notice of a motion filed pursuant to subsection (1) of this section, the county attorney shall take such steps as are necessary to ensure that any remaining biological material that was secured by the state or a political subdivision in connection with the case is preserved pending the completion of proceedings under the DNA Testing Act.(4) The county attorney shall prepare an inventory of all evidence that was secured by the state or a political subdivision in connection with the case and shall submit a copy of the inventory to the person or the person's counsel and to the court. If evidence is intentionally destroyed after notice of a motion filed pursuant to this section, the court shall impose appropriate sanctions, including criminal contempt.(5) Upon consideration of affidavits or after a hearing, the court shall order DNA testing pursuant to a motion filed under subsection (1) of this section upon a determination that (a)(i) the biological material was not previously subjected to DNA testing or (ii) the biological material was tested previously, but current technology could provide a reasonable likelihood of more accurate and probative results, (b) the biological material has been retained under circumstances likely to safeguard the integrity of its original physical composition, and (c) such testing may produce noncumulative, exculpatory evidence relevant to the claim that the person was wrongfully convicted or sentenced.(6) All forensic DNA tests shall be performed by a laboratory which is accredited by the American Society of Crime Laboratory Directors-LAB-Laboratory Accreditation Board or the National Forensic Science Technology Center or by any other national accrediting body or public agency which has requirements that are substantially equivalent to or more comprehensive than those of the society or center.Source  Laws 2001, LB 659, § 5;  Laws 2015, LB245, § 3.  Annotations  1. General 2. Procedure 3. Successive motions 4. Miscellaneous 1. General A court is not required to order DNA testing under this section if such testing would not produce exculpatory evidence. State v. Hale, 306 Neb. 725, 947 N.W.2d 313 (2020). If the criteria in subsection (1) of this section are met, and the reviewing court finds that testing may produce noncumulative, exculpatory evidence relevant to the claim that the person was wrongfully convicted or sentenced, under subsection (5) of this section, the court must order DNA testing. State v. Hale, 306 Neb. 725, 947 N.W.2d 313 (2020). The threshold showing required under subsection (5) of this section is relatively undemanding and will generally preclude testing only where the evidence at issue would have no bearing on the guilt or culpability of the movant. State v. Hale, 306 Neb. 725, 947 N.W.2d 313 (2020). The possibility of extraneous DNA being deposited on victims' shirts while stored in a cardboard box and possibly handled by various persons during the course of the trial for sodomy and rape related to the third prong of the DNA Testing Act on whether the requested DNA testing could lead to exculpatory evidence—not the second prong on whether the evidence was retained under circumstances likely to safeguard the integrity of the biological material's original physical composition—interpreting the "physical integrity" prong as demanding that the biological evidence was secured in a way likely to avoid accidental contamination with extraneous DNA from epithelial cells would undermine the express purposes of the act. State v. Pratt, 287 Neb. 455, 842 N.W.2d 800 (2014). The DNA Testing Act does not exclude persons who were convicted and sentenced pursuant to pleas. State v. Winslow, 274 Neb. 427, 740 N.W.2d 794 (2007). Subsection (5) of this section requires that the specific DNA testing requested in the motion, as opposed to DNA testing in general, was effectively not available at the time of trial. State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003). The requirements of this section are met if types of DNA testing are available that were effectively not available at the time of trial, and if such testing will produce more accurate and probative results. State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003). 2. Procedure Under subsection (5) of this section, the court has discretion to either consider the motion on affidavits or hold a hearing. State v. Hale, 306 Neb. 725, 947 N.W.2d 313 (2020). With regard to a defendant's motion for DNA testing under the DNA Testing Act, the State, as the custodian of the evidence, had the burden to establish whether the requested biological evidence still existed and was available for testing. State v. Pratt, 287 Neb. 455, 842 N.W.2d 800 (2014). A motion for DNA testing is similar to a motion for new trial based on newly discovered evidence, as opposed to a collateral postconviction attack on a final judgment. State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003). A motion for DNA testing under the DNA Testing Act is addressed to the discretion of the trial court and unless an abuse of discretion is shown, the determination of the trial court will not be disturbed on appeal. State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003). In an appeal from a proceeding under the DNA Testing Act, the trial court's findings of fact will be upheld unless such findings are clearly erroneous. State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003). 3. Successive motions Pursuant to subsection (5) of this section, in cases of successive motions for DNA testing, the district court must make a new determination of whether the biological material has been retained under circumstances likely to safeguard the integrity of its original physical composition, but such determination shall be limited to a review of the evidence occurring since the last motion for DNA testing. State v. Pratt, 20 Neb. App. 434, 824 N.W.2d 393 (2013). Second, or successive, motions for DNA testing are permissible pursuant to the DNA Testing Act, specifically subsection (1)(c) of this section; however, res judicata principles would operate to bar a successive motion for DNA testing if the exact same issue was raised in both motions. State v. Pratt, 20 Neb. App. 434, 824 N.W.2d 393 (2013). When a defendant files successive motions for DNA testing pursuant to the DNA Testing Act, specifically subsection (5) of this section, a court is required to first consider whether the DNA testing sought was effectively not available at the time of the trial; if it was not, the court must then consider whether the DNA testing was effectively not available at the time the previous DNA testing was sought by the defendant. State v. Pratt, 20 Neb. App. 434, 824 N.W.2d 393 (2013). 4. Miscellaneous The statutory requirement that requested DNA testing may produce noncumulative, exculpatory evidence relevant to a movant's claim that he or she was wrongfully convicted or sentenced is relatively undemanding for the movant and will generally preclude testing only where the evidence at issue would have no bearing on the guilt or culpability of the movant. State v. Ildefonso, 304 Neb. 711, 936 N.W.2d 348 (2019). Where a prisoner sought DNA testing to corroborate an admittedly fabricated story and where testing results would be inconclusive at best, the prisoner failed to meet his burden to show that DNA testing may produce noncumulative, exculpatory evidence relevant to his claim that he was wrongfully convicted. State v. Ildefonso, 304 Neb. 711, 936 N.W.2d 348 (2019). The showing that must be made to obtain DNA testing presents a relatively low threshold; in determining whether to allow such testing, consideration of the higher legal standards applicable to setting aside a judgment or requiring a new trial after testing has been performed is inappropriate. State v. Myers, 301 Neb. 756, 919 N.W.2d 893 (2018). Evidence which was available but not pursued is not considered to have been unavailable at the time of trial. State v. Haas, 279 Neb. 812, 782 N.W.2d 584 (2010). As an initial matter, DNA testing presupposes at least two samples of biological material. State v. Dean, 270 Neb. 972, 708 N.W.2d 640 (2006). DNA testing cannot be exculpatory for purposes of this section if a defendant merely seeks to use such evidence to show how blood was deposited on a specific item that is to be tested. State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003). DNA testing could not produce noncumulative, exculpatory evidence relevant to the claim that the defendant was wrongfully sentenced when the record is barren of any evidence that the defendant was merely an accomplice or that his participation in the crime was relatively minor. State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003).