Source

• Neb. Const. art. I, sec. 12 (1875).

Annotations

1. Giving evidence against self

2. Jeopardy

1. Giving evidence against self

When a court sua sponte suggests a mistrial, it is not too onerous to require defense counsel to clearly and timely state whether he or she objects to the court's consideration of a mistrial when given an opportunity to do so. State v. Leon-Simaj, 300 Neb. 317, 913 N.W.2d 722 (2018).

Defendant's statement to television representative was not the type of official questioning to which this section applies. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).

A defendant is not required to make a statement of any kind under his constitutional right not to be compelled in any criminal case to be a witness against himself. State v. Houser, 241 Neb. 525, 490 N.W.2d 168 (1992).

A suspect's awareness of all possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived the privilege against self-incrimination. State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991).

In an opening statement for a jury trial, a prosecutor's comment concerning the necessity of the defendant's testimony or an expression concerning the plausibility or credibility of anticipated testimony from a defendant violates an accused's right to remain silent at trial. State v. Pierce, 231 Neb. 966, 439 N.W.2d 435 (1989).

If the State calls a defendant as a witness at a hearing for revocation of the defendant's probation, the defendant's constitutional right to remain silent is not violated, since a revocation of probation is not a stage of prosecuting a defendant on a criminal charge and because the defendant's admission of a probation violation is not necessarily admission of a crime committed by the defendant. State v. Sites, 231 Neb. 624, 437 N.W.2d 166 (1989).

Probation revocation proceedings are not criminal in nature; the privilege against giving evidence against oneself does not arise. State v. Burow, 223 Neb. 867, 394 N.W.2d 665 (1986).

Trial court's determination that defendant's incriminating statements were made in a non-custodial setting was not clearly wrong; thus, police did not violate defendant's constitutional right against self-incrimination. State v. Saylor, 223 Neb. 694, 392 N.W.2d 789 (1986).

Constitutional privilege against self-incrimination invoked by wife in a dissolution action in response to questions by husband regarding extramarital relations with another man. Ritchey v. Ritchey, 208 Neb. 100, 302 N.W.2d 372 (1981).

Sections 29-3301 to 29-3307 do not violate privilege against self-incrimination, are constitutional, and apply to physical evidence, not to oral communications or testimony. State v. Swayze, 197 Neb. 149, 247 N.W.2d 440 (1976).

In determining whether the testimony of a witness who had pleaded guilty to a similar charge but had not been sentenced, who invoked the privilege on self-incrimination during the cross-examination may be used against the defendant, a distinction must be drawn between cases in which the assertion of the privilege merely precludes inquiry into collateral matters which bear only on the credibility of the witness and those cases in which the assertion of the privilege prevents inquiry into matters about which the witness testified on direct examination. State v. Bittner, 188 Neb. 298, 196 N.W.2d 186 (1972).

In order to deny a claim to the privilege against self-incrimination by a witness, it must be perfectly clear to the judge from a careful consideration of all of the circumstances in the case that the witness is mistaken and that the answer or answers cannot possibly have a tendency to incriminate. State v. Holloway, 187 Neb. 1, 187 N.W.2d 85 (1971).

Photographs taken of defendant without his permission do not violate this section. State v. Blackwell, 184 Neb. 121, 165 N.W.2d 730 (1969).

Constitutional privilege against self-incrimination is restricted to oral testimony, and does not apply to chemical analysis of body fluids. Prucha v. Department of Motor Vehicles, 172 Neb. 415, 110 N.W.2d 75 (1961).

This section does not apply to one charged with contempt of court and one so charged may be required to testify the same as any other competent witness. State ex rel. Wright v. Barlow, 132 Neb. 166, 271 N.W. 282 (1937).

Physician's testimony as to sanity of accused, based on examination without court order or attorney's consent, but without objection at time, is not compelling him to give evidence against self. Wehenkel v. State, 116 Neb. 493, 218 N.W. 137 (1928).

Requiring defendant to answer questions on cross-examination as to previous convictions for misdemeanor violates the provisions of this section. Coxbill v. State, 115 Neb. 634, 214 N.W. 256 (1927).

2. Jeopardy

The protection granted by the Nebraska Constitution against double jeopardy is coextensive to the protection granted by the U.S. Constitution. State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020).

Section 60-6,197.04 is constitutionally valid and does not conflict with the 4th, 5th, and 14th Amendments to the U.S. Constitution, and this provision or Neb. Const. Art. I, sec. 7, as section 60-6,197.04 mandates a preliminary breath test, rather than a search incident to lawful arrest addressed in Birchfield v. North Dakota, 579 U.S. 438, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016), and where the arresting officer cited specific articulable facts to support administering the preliminary breath test. State v. McCumber, 295 Neb. 941, 893 N.W.2d 411 (2017).

Double jeopardy protects a defendant against cumulative punishments for convictions on the same offense; however, it does not prohibit the State from prosecuting a defendant for multiple offenses in a single prosecution. State v. Humbert, 272 Neb. 428, 722 N.W.2d 71 (2006).

The concept of double jeopardy applies only in successive prosecution cases and does not apply to a single trial where the defendant has been put in jeopardy only once. State v. Furrey, 270 Neb. 965, 708 N.W.2d 654 (2006).

Whether an amended complaint or information constitutes a continuation of a single trial depends on the nature of the amendment. State v. Furrey, 270 Neb. 965, 708 N.W.2d 654 (2006).

An administrative disciplinary proceeding in which a prisoner loses good time does not place him in jeopardy. A conviction and sentence in a criminal prosecution following an administrative disciplinary proceeding do not constitute double jeopardy. State v. Lynch, 248 Neb. 234, 533 N.W.2d 905 (1995).

Second trial after appellate reversal because of procedural error does not place a defendant in double jeopardy where there is sufficient circumstantial evidence to submit case to jury and to convict defendant. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).

Prosecution for traffic infraction held to be a criminal offense within the meaning of double jeopardy herein. State v. Knoles, 199 Neb. 211, 256 N.W.2d 873 (1977).

This Article does not preclude successive prosecutions by federal and Nebraska governments. State v. Pope, 190 Neb. 689, 211 N.W.2d 923 (1973).

Successive prosecutions by federal and state governments in the exercise of concurrent jurisdiction over substantially the same offense are not prohibited by this section. State v. Pope, 186 Neb. 489, 184 N.W.2d 395 (1971).

The conviction of a defendant for intoxication does not bar a subsequent prosecution for offense of operating a motor vehicle while under the influence of intoxicating liquor. State v. Eckert, 186 Neb. 134, 181 N.W.2d 264 (1970).

Order of trial court to set aside verdict and order a new trial did not contravene double jeopardy provision of Constitution. State v. Houp, 182 Neb. 298, 154 N.W.2d 465 (1967).

Sexual psychopath law did not place accused who had been previously convicted of sexual offense in double jeopardy. State v. Madary, 178 Neb. 383, 133 N.W.2d 583 (1965).

A proceeding for contempt is not a criminal case. State ex rel. Beck v. Lush, 168 Neb. 367, 95 N.W.2d 695 (1959).

Determination of sentence to be imposed by court instead of jury does not violate this section. Poppe v. State, 155 Neb. 527, 52 N.W.2d 422 (1952).

Where two persons were killed in automobile collision, acquittal on charge of manslaughter for killing one did not bar prosecution for killing of the other. Jeppesen v. State, 154 Neb. 765, 49 N.W.2d 611 (1951).

Where a jury in a criminal case disagrees and is properly discharged, a second trial upon original charge, even though one or more degrees of the offense have been withdrawn, does not violate this section. State v. Hutter, 145 Neb. 798, 18 N.W.2d 203 (1945).

Habitual criminal statute does not contravene this section. Davis v. O'Grady, 137 Neb. 708, 291 N.W. 82 (1940).

Discharge of jury and retrial of defendant does not violate constitutional guaranty under this section. Shaffer v. State, 123 Neb. 121, 242 N.W. 364 (1932).

Court, after sentence for less than minimum term prescribed by statute had been served, was without power to vacate it and impose greater penalty. Hickman v. Fenton, 120 Neb. 66, 231 N.W. 510 (1930).

Where offense charged in information upon which defendant was previously tried and acquitted was inclusive of the offense for which she is being held for trial, jeopardy attached by virtue of the former trial, and habeas corpus will lie. In re Resler, 115 Neb. 335, 212 N.W. 765 (1927).

Where jury is discharged after deliberating so long that there is no probability of agreeing and the accused held to a further trial, it is without any infringement of this section. Sutter v. State, 105 Neb. 144, 179 N.W. 414 (1920).

If during a trial of a misdemeanor before a magistrate, it appears that defendant should be put upon his trial for a felony and the magistrate orders a new complaint to be filed and proceeds to sit as examining magistrate, finds probable cause and binds accused over to district court to answer to the felony, this is not violation of this section. Larson v. State, 93 Neb. 242, 140 N.W. 176 (1913).

Where one accused of a felony is put upon trial under an information defective upon its face, and after trial begun, information is amended and the trial proceeded with, there being no change in the offense charged, the accused is not thereby placed in jeopardy a second time. McKay v. State, 91 Neb. 281, 135 N.W. 1024 (1912).

If complaint does not contain necessary averments to constitute criminal charge, there is no former jeopardy. Roberts v. State, 82 Neb. 651, 118 N.W. 574 (1908).

Where the same facts constitute two or more offenses, wherein the lesser offense is not necessarily involved in the greater, and when the facts necessary to convict on a second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second, although the offenses were both committed at the same time and by the same act. Warren v. State, 79 Neb. 526, 113 N.W. 143 (1907).

Judgment of court having no jurisdiction over subject matter is void and does not constitute a bar to further proceedings on same charge. Peterson v. State, 79 Neb. 132, 112 N.W. 306 (1907).

To constitute former jeopardy it must appear that party was put upon trial before court having jurisdiction, upon indictment or information sufficient in form and substance to sustain conviction and that the jury was impaneled and sworn, and thus charged with his deliverance. Steinkuhler v. State, 77 Neb. 331, 109 N.W. 395 (1906).

Confinement of accused under void or erroneous sentence is not a bar to rendition of legal sentence under verdict. McCormick v. State, 71 Neb. 505, 99 N.W. 237 (1904).

Statute directing the assessment of a fine in double the amount embezzled, in addition to the imprisonment imposed in case of conviction is not open to objection that it inflicts a double penalty. Everson v. State, 66 Neb. 154, 92 N.W. 137 (1902).

The proceeding by quo warranto is a civil remedy; it is the means employed by the state to cancel and recall a privilege which the corporation proceeded against has abused. State v. Standard Oil Co., 61 Neb. 28, 84 N.W. 413 (1900).

By appealing, accused thereby waives right to object to further prosecution on reversal, on ground that he has been once put in jeopardy. McGinn v. State, 46 Neb. 427, 65 N.W. 46 (1895).

The constitutional provision against placing accused twice in jeopardy does not apply to mere civil actions for recovery of penalties. Mitchell v. State, 12 Neb. 538, 11 N.W. 848 (1882).