29-1912 Request by defendant to inspect and make copies of evidence; granted; when; findings; possibility of harm; effect. - Nebraska Statutes

29-1912. Request bydefendant to inspect and make copies of evidence; granted; when; findings;possibility of harm; effect.(1) When a defendantis charged with a felony or when a defendant is charged with a misdemeanoror a violation of a city or village ordinance for which imprisonment is apossible penalty, he or she may request the court where the case is to betried, at any time after the filing of the indictment, information, or complaint,to order the prosecuting attorney to permit the defendant to inspect and copyor photograph:(a) The defendant's statement, if any. For purposes of thissubdivision, statement means a written statement made by the defendant andsigned or otherwise adopted or approved by him or her, or a stenographic,mechanical, electrical, or other recording, or a transcription thereof, whichis a substantially verbatim recital of an oral statement made by the defendantto an agent of the prosecution, state, or political subdivision thereof, andrecorded contemporaneously with the making of such oral statement;(b) The defendant's prior criminal record, if any;(c) The defendant's recorded testimony before a grand jury;(d) The names and addresses of witnesses on whose evidencethe charge is based;(e) The results and reports of physical or mental examinations,and of scientific tests, or experiments made in connection with the particularcase, or copies thereof;(f) Documents, papers, books, accounts, letters, photographs,objects, or other tangible things of whatsoever kind or nature which couldbe used as evidence by the prosecuting authority;(g) The known criminal history of a jailhouse witness;(h) Any deal, promise, inducement, or benefit that the prosecutingattorney or any person acting on behalf of the prosecuting attorney has knowinglymade or may make in the future to the jailhouse witness;(i) The specific statements allegedly made by the defendantagainst whom the jailhouse witness will testify and the time, place, and mannerof the defendant's disclosures;(j) The case name and jurisdiction of any criminal casesknown to the prosecuting attorney in which a jailhouse witness testified aboutstatements made by another criminal defendant that were disclosed to the jailhousewitness while he or she was a jailhouse witness and whether the jailhousewitness received any deal, promise, inducement, or benefit in exchange foror subsequent to such testimony; and(k) Any occasion known to the prosecuting attorney in whichthe jailhouse witness recanted testimony about statements made by anothercriminal defendant that were disclosed to the jailhouse witness while he orshe was a jailhouse witness and, if any are known, a transcript or copy ofsuch recantation.(2) The court may issue such an order pursuant to the provisionsof this section. In the exercise of its judicial discretion, the court shallconsider among other things whether:(a) The request is material to the preparation of the defense;(b) The request is not made primarily for the purpose ofharassing the prosecution or its witnesses;(c) The request, if granted, would not unreasonably delaythe trial of the offense and an earlier request by the defendant could nothave reasonably been made;(d) There is no substantial likelihood that the request,if granted, would preclude a just determination of the issues at the trialof the offense; or(e) The request, if granted, would not result in the possibilityof bodily harm to, or coercion of, witnesses.(3) Whenever the court refuses to grant an order pursuantto the provisions of this section, it shall render its findings in writingtogether with the facts upon which the findings are based.(4) Whenever the prosecuting attorney believes that the grantingof an order under the provisions of this section will result in the possibilityof bodily harm to witnesses or that witnesses will be coerced, the court maypermit him or her to make such a showing in the form of a written statementto be inspected by the court alone. The statement shall be sealed and preservedin the records of the court to be made available to the appellate court inthe event of an appeal by the defendant.(5) For purposes of subdivisions (1)(g) through (k) of thissection, jailhouse witness means a person in the physical custody of any jailor correctional institution as (a) an accused defendant, (b) a convicted defendantawaiting sentencing, or (c) a convicted defendant serving a sentence ofincarceration, at the time the statements the jailhouse witnesswill testify about were disclosed. SourceLaws 1969, c. 235, § 1, p. 867; Laws 1983, LB 110, § 1; Laws 2009, LB63, § 25; Laws 2010, LB771, § 17.Effective Date: July 15, 2010Annotations1. Scope2. Trial court3. Miscellaneous1. ScopePursuant to this section, upon a defendant's proper request through discovery procedure, the State must disclose information which is material to the preparation of a defense to the charge against the defendant. In order that the defendant receive a fair trial, requested and material information must be disclosed to the defendant. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).The Supreme Court has not established any court rules that would provide the State with a right of discovery in criminal cases. State v. Kinney, 262 Neb. 812, 635 N.W.2d 449 (2001).Discovery in a criminal case is, in the absence of a constitutional requirement, controlled by either a statute or court rule. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).A motion to produce addressed to the prosecuting attorney under this section is not an appropriate way for a defendant in a criminal case to procure handwriting exemplars of third parties unless it be alleged that such exemplars are in the possession of the prosecutor and are relevant evidence in the prosecution. State v. Davis, 203 Neb. 284, 278 N.W.2d 351 (1979).Where defendant's counsel had knowledge of a polygraph examination and did not attempt discovery nor to subpoena the examiner before trial, the report was not newly discovered evidence. State v. Seger, 191 Neb. 760, 217 N.W.2d 828 (1974).Tape recording of conversation between undercover agent and defendant made before he was accused or indicted are admissible when he had taken no steps to discover and has on cross-examination elicited testimony of the conversation from the witness. State v. Myers, 190 Neb. 146, 206 N.W.2d 851 (1973).This section governs what material a criminal defendant is entitled, as a matter of right, to discover. This section does not include information about prior criminal histories of witnesses, and discovery of that information is within the discretion of the trial court. State v. Dimmitt, 5 Neb. App. 451, 560 N.W.2d 498 (1997).2. Trial courtSection 29-1916 does not provide a basis for a trial court to order a defendant to produce defense exhibits when the defendant has not requested a discovery order pursuant to this section. State v. Kinney, 262 Neb. 812, 635 N.W.2d 449 (2001).A trial court's erroneous failure to notify defense counsel of an ex parte, court-ordered examination prior to such examination and the subsequent delay in defense counsel's reception of the expert examiner's report until trial has commenced is harmless when defense counsel receives a copy of the expert examiner's report as soon as the state receives such a copy, and the defense has adequate opportunities to depose the expert examiner; hence, admission of the expert examiner's testimony and the denial of defense counsel's motions for continuance and a new trial are not reversible errors. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).At hearing on motion to produce hereunder, the trial court must determine by inquiry of the prosecuting attorney whether or not he has any item designated in the statute and in the motion to produce, and if the court refuses to order production, it shall render findings in writing with foundation facts. State v. Eskew, 192 Neb. 76, 218 N.W.2d 898 (1974).Where LSD tablet was used in test and graph was not preserved, but it was stipulated results of laboratory test, investigation, and experiments were produced and copies given to defendant and no specific request for graph was made in discovery motion, refusal of court to suppress evidence was not error. State v. Batchelor, 191 Neb. 148, 214 N.W.2d 276 (1974).Denial of a request during trial for a recess to examine a statement of accomplice whose name had been endorsed on information as a witness was not an abuse of discretion. State v. McCown, 189 Neb. 495, 203 N.W.2d 445 (1973).3. MiscellaneousWhether a prosecutor's failure to disclose evidence results in prejudice to the accused depends on whether the information sought is material to the preparation of the defense, meaning that there is a strong indication that such information will play an important role in uncovering admissible evidence, aiding preparation of witnesses, corroborating testimony, or assisting impeachment or rebuttal. State v. Castor, 257 Neb. 572, 599 N.W.2d 201 (1999).Materiality is defined more broadly under this section than under the U.S. Constitution, and thus, evidence that is material under the U.S. Constitution is material under this section. State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998).When a continuance will cure the prejudice caused by belated disclosure, a continuance should be requested by counsel and granted by the trial court. State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998).Under this section, whether a prosecutor's failure to disclose evidence results in prejudice depends on whether the information sought is material to the preparation of the defense, meaning that there is a strong indication that such information will play an important role in uncovering admissible evidence, aiding preparation of witnesses, corroborating testimony, or assisting impeachment or rebuttal. State v. Kula, 252 Neb. 471, 562 N.W.2d 717 (1997).The test for whether nondisclosure is prejudicial is whether the information sought is material to the preparation of the defense, meaning that there is a strong indication that such information will play an important role in uncovering admissible evidence, aiding preparation of witnesses, corroborating testimony, or assisting in impeachment or rebuttal. State v. Null, 247 Neb. 192, 526 N.W.2d 220 (1995).Prosecutor's nondisclosure of pathologist's opinion, given after examination of victim's injuries in photographs, that means used and manner in which victim's wounds were inflicted were not as victim claimed, denied defendant fair trial. State v. Brown, 214 Neb. 665, 335 N.W.2d 542 (1983).Statutory design for discovery is based upon the Federal Rules of Criminal Procedure. State v. Brown, 214 Neb. 665, 335 N.W.2d 542 (1983).