Annotations

• 1. Affidavits

• 2. Newly discovered evidence

• 3. Evidentiary hearing

• 4. Miscellaneous

• 1. Affidavits

• Misconduct of county attorney may be sustained by affidavits. Mulder v. State, 152 Neb. 795, 42 N.W.2d 858 (1950).

• Facts may be such as to require entire record to be limited to affidavits. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931).

• Affidavits must be preserved in form of bill of exceptions to be available to complaining party on appeal. Wright v. State, 45 Neb. 44, 63 N.W. 147 (1895).

• 2. Newly discovered evidence

• It is fundamental that newly discovered evidence must be admissible before it can be evidence that is so substantial that with it, a different verdict would probably have been reached at trial. State v. Boppre, 315 Neb. 203, 995 N.W.2d 28 (2023).

• To set forth sufficient facts, a motion for new trial based on newly discovered evidence should clearly and succinctly identify the evidence claimed to be newly discovered and should state with particularity: (1) the date on which such evidence was discovered; (2) why such evidence could not, with reasonable diligence, have been discovered and produced at trial; and (3) why such evidence is so substantial that with it, a different verdict would probably have been reached at trial. State v. Boppre, 315 Neb. 203, 995 N.W.2d 28 (2023).

• When a defendant seeks a new trial on the ground of newly discovered evidence, the evidentiary hearing provisions of this statute are satisfied if the motion and supporting affidavits, depositions, or oral testimony set forth sufficient facts which, if true, establish that (1) the new evidence existed at the time of trial but could not, with reasonable diligence, have been discovered and produced at trial and (2) such evidence is so substantial that with it, a different verdict would probably have been reached at trial. State v. Boppre, 315 Neb. 203, 995 N.W.2d 28 (2023).

• This section does not apply to newly discovered evidence discovered after adjournment of term. Carlsen v. State, 129 Neb. 84, 261 N.W. 339 (1935).

• 3. Evidentiary hearing

• A litigant may not introduce new evidence at a hearing on a motion to alter or amend a trial court order denying a motion for new trial without an evidentiary hearing. State v. Boppre, 315 Neb. 203, 995 N.W.2d 28 (2023).

• When deciding whether an evidentiary hearing is required on a motion for new trial, trial courts have discretion to adopt reasonable prehearing procedures, but what a court may receive at such a records hearing must comport with the new trial statutes. State v. Boppre, 315 Neb. 203, 995 N.W.2d 28 (2023).

• The constitutional right to trial by a fair and impartial jury that is affected by a stranger's presence in the jury room is a substantial right, so when an alternate juror is mistakenly allowed in the jury room during deliberations, without any safeguards in place under section 29-2004, a court has a mandatory duty to conduct an evidentiary hearing to determine the extent and nature of any communications by the alternate or whether the alternate's presence or communications materially influenced the jury. State v. Madren, 308 Neb. 443, 954 N.W.2d 881 (2021).

• 4. Miscellaneous

• Only affidavits, depositions, and oral testimony are proper supporting documents; stand-alone photographs, letters, newspaper articles, and similar documents are not proper. State v. Boppre, 315 Neb. 203, 995 N.W.2d 28 (2023).

• A de novo standard of review applies when an appellate court is reviewing a trial court's dismissal of a motion for new trial under this section without conducting an evidentiary hearing. State v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017).