Nebraska Revised Statutes
Chapter 29 - Criminal Procedure
29-2102 - New trial; affidavits; when required; motion; hearing.

29-2102. New trial; affidavits; when required; motion; hearing.
(1) The grounds set forth in subdivisions (2), (3), and (6) of section 29-2101 shall be supported by affidavits showing the truth of such grounds, and the grounds may be controverted by affidavits. The ground set forth in subdivision (5) of section 29-2101 shall be supported by evidence of the truth of the ground in the form of affidavits, depositions, or oral testimony.
(2) If the motion for new trial and supporting documents fail to set forth sufficient facts, the court may, on its own motion, dismiss the motion without a hearing. If the motion for new trial and supporting documents set forth facts which, if true, would materially affect the substantial rights of the defendant, the court shall cause notice of the motion to be served on the prosecuting attorney, grant a hearing on the motion, and determine the issues and make findings of fact and conclusions of law with respect thereto.
(3) In considering a motion for new trial based on the grounds set forth in subdivision (5) of section 29-2101, if the court finds that there is evidence materially affecting the substantial rights of the defendant which he or she could not with reasonable diligence have discovered and produced at trial, the court may, upon the motion of any party and following a hearing, vacate and set aside the judgment and release the person from custody or grant a new trial as appropriate.
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Annotations

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).

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).

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

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).

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).

Nebraska Revised Statutes Chapter 29 - Criminal Procedure 29-2102 - New trial; affidavits; when required; motion; hearing.

Nebraska Revised Statutes
Chapter 29 - Criminal Procedure
29-2102 - New trial; affidavits; when required; motion; hearing.