Arrest

• With Warrant: The prosecutor presents to the judge a sworn affidavit of a law enforcement officer setting forth facts that the officer believes constitutes probable cause to believe a crime was committed and the person charged committed the offense. If the court finds that probable cause exists, the warrant is signed and filed with the Clerk of the County Court. A complaint is then filed in County Court. A warrant authorizes law enforcement to arrest the person charged. 
• Without Warrant: Within 48 hours after a warrantless arrest, the arresting officer must present the court with an affidavit with a brief explanation of the basis for the arrest. The court decides based on the document alone if probable cause exists for continued detention. If not, the person is released. If probable cause is found, then a bond is set. A complaint should be on file within 24- to 48 hours of the probable cause finding.
• Once charges have been filed, the arrest warrant or probable cause affidavit will be made part of the court file and is accessible from the clerk’s office or online through the JUSTICE website.

Charges in County Court

• All traffic and misdemeanor criminal charges are handled in county court.
•  Most traffic offenses are non-jailable and carry a fine. A fine schedule is created by the Nebraska Supreme Court.
•  Penalties for misdemeanors range from fines to a year of imprisonment, Class I being the most serious and V being the least. They are laid out in statute 28-106. 
  • Class I- max 1 year in jail and/or up to $1000 fine
  • Class II- max 6 months in jail and/or up to $1000 fine
  • Class III- max 90 days jail and/or up to $500 fine
  • Class IIIA- max 7 days jail and/or up $500 fine
  • Class IV- up to $500 fine
  • Class V- up to $100 fine
  • Class W- Driving under the Influence
  • 3rd offense - 90-365 days jail and $1000 fine
  • 2nd offense - 20-180 days jail and $500 fine
  • 1st offense - 7-60 days jail and $500
• Traffic violations are infractions which carry fines and no jail time.

Charges in District Court

• Felony criminal charges all are handled in district court. (See: Adult Felony Process Flowchart) Though, judges in district court can have jurisdiction over misdemeanors or traffic cases, too, if they are filed along with felonies or if a felony is pleaded down. 
• Felony offense penalties are set forth by statute into classes, ranging from IV being the least serious to Class I being the most serious. (https://nebraskalegislature.gov/laws/statutes.php?statute=28-105):
  • Class I-death sentence
  • Class IA- life imprisonment
  • Class IB- 20 years to life imprisonment
  • Class IC- 5 years to 50 years imprisonment
  • Class ID- 3 years to 50 years imprisonment
  • Class II- 1 year to 50 years imprisonment
  • Class IIA- 0 to 20 years imprisonment
  • Class III- 0 to 4 years imprisonment and 9-24 months post-release supervision, or $10,000-$25,000 fine or both
  • Class IIIA- 0 to 3 years imprisonment and 9-18 months post-release supervision, or max $10,000 fine or both
  • Class IV- presumption of probation.  If that presumption is overcome taking into consideration the factors under Neb. Rev. Stat. 29-2260, then the penalty is 0 years to 2 years imprisonment and 9-12 months Post Release Supervision, or max $10,000 fine or both

Documents: Citation; complaint; motions; orders; pre-sentence reports; affidavits; bonds  

 

Revised 1/2019

These matters may all be covered in one hearing.

Bond Setting

The purpose for initial hearing in county court is to bring a defendant held in custody before the court to determine if, and under what conditions, they are eligible for release prior to trial.

• Purpose of bond: To ensure that defendant returns to court and is not a future risk to the community.
• Parties: The judge, prosecutor and the defendant self-represented or with defense counsel.
• Roles:
  • The prosecutor advises the court of the defendant’s prior criminal history, pending charges and any other factors they think are relevant to the judge’s decision. 
  • The defendant, either personally or through counsel, advises the court of his or her work history, ties to the community and ability to hire an attorney.
  • The judge considers: the type of the offense, penalty if convicted, flight risk, financial condition, nature of circumstances surrounding the case, prior criminal record, history of failing to appear and ability of the defendant to post bond as presented by the prosecutor.

Judges may set either a percentage bond, allowing the defendant to get out if they pay 10 percent of it, or a personal recognizance bond, allowing the defendant to be released on a “promise to pay” based upon their own signature. Bail bondsmen are not used in the State of Nebraska as they are in other states.

Defendants may be ordered to comply with Pretrial Release as a condition of bond, which is a contract entered into with defendant and Pretrial Release office where a defendant agrees to certain terms, like appearing for regular drug testing, abstaining for drug and alcohol use or meeting regularly with Pretrial Release officer and having no contact with the victim. 

These hearings are open to the public. Any orders entered are accessible in the court file or online using the JUSTICE website.

Legal Terms: Signature bond; own (personal) recognizance; no contact; pre-trial; ten percent bond; scheduled bond; self-represented; bond schedule, pretrial release

Revised 1/2019

(See: Adult Simple Misdemeanor Process Flowchart)

Complaint Filed

A court case is initiated by the filing of a complaint in County Court and is the first opportunity to know the "official" charges. This is done by a county attorney, city attorney or special prosecutor, who must prove the charges beyond a reasonable doubt. 

Law enforcement agencies arrest and book a defendant based on probable cause, which is a lower legal standard. That may mean the charges ultimately filed may differ from the citation or what were booked into jail for.

A complaint is a public record and can be accessed from the court file or online using the JUSTICE website.

Motion to Quash

In misdemeanor cases, this motion to Quash must be filed prior to a defendant’s entry of initial plea and challenges the legal sufficiency of the charges, for instance it may question the constitutionality of the statute they’re accused of violating. They are fairly rare. The motion requires an evidentiary hearing and may be heard at the same time as the arraignment. A copy of the motion may be found in court file or online using the JUSTICE website.

Arraignment

Generally, this is the first appearance in county court after a complaint is filed. The hearing is open to the public, and a journal entry with information about what happened at the hearing is available by contacting the County Court, checking the JUSTICE website after a complaint has been filed, or on the Nebraska Multi-Court Calendar at http://www.nebraska.gov/courts/calendar/index.cgi. 

At the hearing, the defendant is advised of the charges, possible penalties and his or her constitutional and statutory rights. Charges may be read or the defendant may waive reading. (Your Rights in Nebraska's County Courts "Right's Advisement")

Defendant entitled to be informed = due process.

A defendant is informed of the right to remain silent; right to a speedy trial within 6 months from filing of charges; right to trial and a jury trial; right to confront and cross-examine witnesses; right to call witnesses and present evidence; right to have an attorney represent; and right to appeal.

A defendant has a right to a court-appointed attorney on offenses that carry the possibility of jail time. If they can afford to hire an attorney, defendants have a right to have an attorney present before entering a plea. If they cannot, a judge holds an indigency hearing to determine if the defendant is qualified for court-appointed attorney at county expense. If eligible, a judge may appoint a public defender or separate counsel. 

Non-citizens

The court must also advise non-citizens of consequences of a conviction, which may include removed from the country or denial of naturalization.

Entry of Plea

• Judge will advise defendant of the possible pleas
  • Not Guilty
    • Case is set for trial. Defendant maintains all rights
  • Guilty
    • Defendant gives up right to trial, jury trial, right to confront and cross examine state’s witnesses, right to call own witnesses on your behalf, right to presumption of innocence and right to remain silent.  Maintains the right to an attorney and right to appeal any final order of court.
  • No Contest
    • Same effect as Guilty, except no one may use the fact that defendant is convicted to prove a civil suit for money.
    • Factual basis must be given by prosecutor
  • Remain Silent. Not Guilty plea entered by Court
    • Case will be set for trial
  • Not Responsible by Reason of Insanity
    • The matter is set for evidentiary hearing
    • Insanity is different than competency

 

Revised 1/2019

(See: Adult Felony Process Flowchart)

Bond setting

The procedure is the same as stated above, although arraignment and bond setting may occur at single appearance. 

Preliminary Hearing

In felony cases only, a defendant has a right to a preliminary hearing in county court where the state presents evidence and a judge determines whether the evidence shows probable cause that the crime charged has been committed, and that the defendant committed the crime. Often these hearings are waived by a defendant in exchange for reports from the prosecutor. 

If a hearing is held and probable cause is found, the defendant is bound over (ordered to appear) in district court for arraignment. If not, the charge will be dismissed. But the state can refile it. Probable cause must be determined for each crime charged. So probable cause could be found for one count and not another. 

Information Filed

Once a case has been bound over from county court, criminal charges are filed formally in an information in district court, starting the six-month speedy trial clock. Informations are public record and are in the court file and available online on the JUSTICE website. A transcript of proceedings in county court also is in the file. 

In some cases the state may choose to file an information directly in district court, setting up a preliminary hearing in district court.

Motions Filed in District Court

Plea in Abatement

Essentially an appeal of the county court’s determination at the preliminary hearing that there was probable cause that a crime was committed and that the defendant committed it. Filed before arraignment. If granted, the charges are dismissed but can be refilled in county court later. Or the case proceeds to arraignment.

Motion to Quash

Challenges the legal sufficiency of the charges and may question the constitutionality of complaint or the jurisdiction of the court. Fairly rare.

Arraignment

Arraignments in district court are the same as arraignments in county court. But defendants are informed they face more potential civil penalties. For instance, if convicted of a felony, a defendant cannot serve as a juror or possess firearms. If convicted of some felonies, they may be subject to the Sex Offender Registration Act, which requires them to register their address continually with the Nebraska State Patrol for 15 years, 25 years or for life, depending on the conviction.

Written waiver of arraignment

Defendant may file a written waiver of arraignment, indicating he understands the charges, penalties and rights and asks the court to enter a not guilty plea on his behalf. Then no hearing will be held.            

Entry of Plea

If an arraignment goes forward, a defendant is advised of the possible pleas. The options are the same as in county court.

 

 

Revised 1/2019

Motion for Discovery

 A defendant may request discovery, or information showing what evidence the state has against them. The exchange of information ensures a fair trial and goes hand in hand with the defendant’s right to confront witnesses.

Motion for Deposition

Either party may request to interview a potential witness under oath prior to trial to find out what will say at time of trial or to ask them about inconsistencies if they change their story at trial. 

These are not open to the public and may not occur at the courthouse. If a transcript of a deposition is made part of the court file, anyone can request a copy at their own expense.

 The Pre-Trial Conference

This is where the judge meets with attorneys, either in court or in chambers, to discuss an upcoming trial (when it will be ready for trial, what motions they anticipate filing before trial, how long a trial will last, etc.). It’s not uncommon to have several before a case goes to trial. Often a date is set for trial or a plea date may be set if a deal has been reached. In some cases, a defendant may enter a plea at a pre-trial conference.

Whether it is held on or off the record, an order with the next court date should be available online after on the JUSTICE system. 

NOTE: These can be important hearings since many cases are settled at pre-trial conferences. 

Motions in Limine & Motions to Suppress

Both the state and the defense can file motions in limine asking a judge to limit evidence from being submitted or a motion to suppress can be filed asking a judge to prevent certain evidence the other side wants to offer from being presented at trial. 

A motion in limine may seek to limit the testimony of a witness and restrict what they can testify about. For instance, the state may ask a judge to prevent the defense from asking the accuser in a sexual assault case about prior sexual experiences, unless a judge deems the information relevant.

A motion to suppress requests the court disallow certain evidence if it was obtained unlawfully or by violating a defendant’s rights. For instance, a judge can agree to suppress a statement a defendant gave law enforcement if police didn’t read them their Miranda warnings first explaining their right not to incriminate themselves. Or a judge can suppress evidence obtained because police stopped a car and searched without probable cause to believe a crime was committed.

404 & 414 Motions

In some cases, the state may seek to use evidence of prior bad acts (404) or prior sexual acts (414) at trial. A judge considers the evidence at a hearing outside the presence of a jury. Defense attorneys can fight the move, arguing it is inadmissible character evidence that would be prejudicial to their client and should be excluded.

Motions for Competency vs. insanity defense

If there are concerns that a defendant may not be mentally competent to stand trial, the defense attorney, prosecutor or judge can raise the issue, prompting an evaluation by the Lincoln Regional Center or, if the person isn’t in custody, by another mental health professional. Evaluators consider whether the person understands the court proceedings and can assist in his/her own defense. 

If a judge finds a defendant not competent, the defendant may be ordered to stay at the Regional Center for staff to work with them to restore their competency. A judge reviews the case every six months until finding the person has been restored (so the case can proceed to trial) or is not restorable (and the case is dismissed). If a case is dismissed for this reason, the prosecutor can seek to have the person civilly committed to the regional center. 

Competency is different than an insanity defense, which is quite rare. A person charged may plead that he or she isn’t responsible because they didn’t know right from wrong due at the time of the crime. And the burden is on the defense to prove it through expert testimony.

If a defendant is found not responsible by reason of insanity, an evaluation is done to determine if the person is a danger to him or herself or others. Often this results in the defendant being committed to the Lincoln Regional Center and to yearly reviews by the judge. 

Motions to Discharge

Continuances by a defendant and defense motions, like motions to suppress or to determine competency, “stop the clock” and are subtracted from the six-month deadline. If the defense can prove to a judge that the state hasn’t brought the person to trial within six months, the case is dismissed. They can only raise this issue before a trial.

 

Revised 1/2019

The only difference between trials in county court and district court are the number of jurors who hear the case and whether a defendant must request a jury or automatically has a right to one. 

Jury trial vs. Bench trial

Most trials are heard by a jury. But a defendant can waive a right to a jury trial and chose instead for the case to be decided by the judge. In that case, a judge alone would decide if the state proved its case.

In county court, if a defendant faces the possibility of jail time if convicted, but the charge is less than a Class I misdemeanor, they must request a jury trial, if they want one, within 10 days of arraignment. 

The roles of the parties: 

• The state: The prosecutor has the burden to prove beyond a reasonable doubt that a crime was committed, and the defendant committed the charged offense.
• The defense: The defense represents the accused, cross examining the state’s witnesses, but has no burden to present any evidence.
• The judge: The judge applies the rules of evidence to determine what can go before the jury and what doesn’t.
• The jury: The jury hears the case, determines what facts have been proven and, in criminal cases, if someone is guilty or not guilty. They do not determine sentences. 

The parts of a trial: 

A trial begins with jury selection, also known voir dire. A judge starts by introducing the jury pool to the process and asking questions to determine if potential jurors can be fair and impartial. Then attorneys for the state and for the defense are allowed to ask them questions, before they pare the group down to those who will hear the trial. 

In misdemeanor cases in county court, a jury is made up of 6. In felony cases in district court, juries are made up of 12. In district court, if all the counts being tried are misdemeanors (which would be rare), the defendant can request a 6-person jury. (Often in felony cases, an alternate juror is chosen to hear the case in the event one of the other jurors gets sick or otherwise cannot finish hearing the case.)

Once a jury is chosen, they take an oath; and the trial begins with opening statements where each side tells the jury what they believe the evidence will show. The state presents evidence first because the burden is on the prosecutor to prove its case.

After the prosecutor is finished with its case, the judge determines whether the state presented enough evidence legally to establish that a crime was committed, and the defendant committed the offense. If the judge finds that the state failed to meet its burden, the case is dismissed. If the judge finds that the state met its burden, the defendant may present evidence.

The defendant may testify but cannot be forced to testify. The defendant is not required to present any evidence at all. The burden of proof remains at all times on the prosecutor. If the defendant presents evidence, the prosecutor may present rebuttal evidence and then rest.

After both sides have rested, the defense typically makes a motion (out of the presence of the jury) for the judge to find that the state failed to present enough evidence to prove its case. If the judge finds that the state has presented sufficient evidence, the case proceeds to closing arguments. The state goes first, then the defense, then the state returns for an opportunity for rebuttal. 

Once the case is submitted to the jury, the jury must unanimously decide if the prosecutor has proven beyond a reasonable doubt that a crime was committed, and the defendant committed the charged offense or offenses. 

If a jury finds the defendant guilty, the judge sets a sentencing date.
If a jury finds the defendant not guilty, the judge dismisses the case.
If a jury cannot reach a unanimous verdict, a judge may declare a mistrial, and the state can retry the case.  

Motion to Withdraw a Plea

If a defendant entered a plea, whether guilty or no contest, he or she may ask a judge to allow them to withdraw it for good cause and to start the case over as if it hadn’t happened. To be successful, the defense must show, for instance, that the defendant wasn’t properly advised of certain constitutional rights or was impaired at the time of the plea or couldn’t understand what he or she was doing at the time of the plea. 

Death Penalty Cases

The initial appearance, pre-trial and trial are the same as other felonies. But, once a jury finds the defendant guilty, a second phase of trial begins, where the state must present evidence of aggravating circumstances beyond a reasonable doubt. If the jury finds even one, the case is eligible for the death penalty. 

Three Judge Panel

The case then moves on to a third trial phase where a panel of three judges (the judge who presided over the initial phases of trial and two others randomly appointed by the Nebraska Supreme Court) determines if there are mitigating circumstances in the case. This is the defense’s opportunity to present evidence of things such as mental health diagnoses, abuse as a child, etc. 

Once the panel hears that evidence, it then convenes in private to weigh whether the mitigators exceed or come close to the weight of the aggravators and determines if the defendant should receive a death sentence. The decision must be unanimous in order for the death sentence to be imposed. A hearing is set later to announce the decision. 

If the defendant is given a death sentence, an appeal is automatic and goes directly to the Nebraska Supreme Court, bypassing the Nebraska Court of Appeals.

A list of aggravating and mitigating circumstances is found in Nebraska State Statute 29-2523.

For more detailed information on the death penalty process read: Capital Murder - Three Judge Panel

 

Revised 1/2019

Sentencing

If a defendant is found guilty, the judge formally pronounces judgment, imposing the punishment and declaring the legal consequences of being found guilty. Maximum and minimum penalties for felonies and misdemeanors can be found online.

If mentioning the maximum sentence in a news story, it is appropriate to mention the minimum.

Discretion

The court has discretion in determining the sentence to be imposed and considers several factors in determining the appropriate sentence:

Age, mentality, education, experience, social and cultural background, past criminal behavior, past law-abiding conduct, motivation for the offense and the nature of the offense.

Pre-Sentence Investigation (PSI)

Before a sentence is imposed, the court may order a PSI performed by the probation office to thoroughly investigate all aspects of the defendant’s life, as well as circumstances of the crime involved, to help the court determine the appropriate sentence. These may include statements of the victim in the case, written statements to the judge from the defendant. They are not open to the public. 

Allocution

Before a defendant is sentenced, they have a right to allocution, where the attorney for the defendant and the defendant have the opportunity to tell the judge what they think is important for the court to be informed of before sentence is imposed.

The prosecution also has an opportunity to be heard.

Four Basic Types of Sentence

• Incarceration
• Probation, supervised or administrative
• Fine
• Combination of the above

Incarceration

Better known as jail, prison or the penitentiary. A judge can sentence a defendant to a determinate or fixed sentence, for example 90 days in county jail on a misdemeanor. Or a judge can give an indeterminate sentence, for instance 5-10 years at the Nebraska Department of Correctional Services. 

If a defendant has multiple charges or cases, a judge will specify if the terms are to be served concurrently (or at the same time) or consecutive (or back to back).

"Good time" (good behavior time) in prison may decrease the sentence by up to one-half. For instance, a person sentenced to 10-20 years on a felony is automatically eligible for parole after serving 5 years (half of the lower number) and, if they don’t parole, can apply again or “jam” their time after serving 10 years (half of the upper number), provided they lost no good time. A person sentenced to prison immediately gets good time up front. However, there is no good time on the portion of a sentence that is mandatory. For instance, first-degree sexual assault of a child charges carry a 15-year mandatory minimum. So if the judge sentences someone to 20-30 years, the person will have to serve 15 years before earning any good-time. So they would have to serve 17-1/2 years before being eligible for parole.

A defendant must be given credit for any time spent in custody for the offense for which being sentenced.

Jail vs. Prison

All sentences imposed of a year or less are served in county jails. Sentences of a year or more must be served at the Nebraska Department of Corrections. If a judge gives a sentence of one year, the judge specifies if it is to be served in jail or prison. 

Probation

A person is supervised by a probation officer to make sure they do not re-offend. The court shall attach such reasonable conditions as it deems necessary or likely to ensure the offender will lead a law-abiding life. A probation term may include a “show cause jail” jail term of up to 90 days to start at a future time that can be waived if they are doing well.

Intensive Supervised Probation (ISP) is highly restrictive and only can be used when the penalty is six months in jail or more. Often it is an alternative to a prison term. 

Specialized Substance Abuse Supervision (SSAS) program also is higher restrictive probation for people dealing with substance abuse issues. 

Probation may last up to two years on misdemeanors or up to five years on a felony. 

If someone violates probation, a judge may revoke it and re-sentence the person in the case as if he or she had never been on probation. A judge may also choose to extend probation or add additional terms or conditions. 

Fine only

The only sentence allowed for a traffic infraction ($100 maximum). The Nebraska Supreme Court has a waiver schedule for hundreds of offenses available on the Nebraska Judicial Branch’s website.

Once a court imposes a valid sentence, it cannot be modified, amended or revised by the trial court and take effect from the time it is announced. Although, a judge can allow a defendant to report to jail at a later date. 

 

Revised 1/2019

Appeal

An appeal is the process by which a decision can be reviewed by the next higher court. For instance, an appeal from county court goes to district court. That decision can be appealed to the Nebraska Court of Appeals and that decision to the Nebraska Supreme Court. An appeal from district court goes to Court of Appeals, then to Supreme Court

In criminal cases, defendants have 30 days to file appeal after sentencing. If they lose in the Court of Appeals, they have 10 days to file a petition for further review to the state Supreme Court. Appeals don’t “stay” a sentence, but a judge can set an appeal bond. Sentences within statutory limits will be upheld if no abuse of judicial discretion is found. 

Motion to Set Aside Convictions

A conviction may be set aside if a pardon had been issued, but it remains on the person’s criminal history record and may be used for enhancement for future offenses. They are mostly for misdemeanor offenses. Rarely for felonies.

After Completion of Sentence

A person convicted of a misdemeanor loses no civil rights after completing a sentence, aside from those convicted of domestic assaults who may not be allowed to possess firearms as a result of a conviction. 

A convicted felon temporarily loses the right to vote and permanently loses the right to possess firearms. Voting rights are automatically restored in Nebraska two years after completion of sentence for felony conviction. But only the Board of Pardons (Governor, Attorney General and Secretary of State) can issue a pardon which restores all civil rights.

Post-Conviction Relief

This is the next step to challenge a sentence after an appeal has been completed. Most claims allege ineffective assistance of counsel. But they also may allege that new evidence is available that may cast doubt on their guilt. A defendant files the petition requesting an evidentiary hearing but must show there is good cause to warrant one. 

 

 Revised 1/2019

Affidavit         
A written statement of facts made under oath

Bond form
Signed by Defendant, promising to appear as scheduled; shows monetary amount or condition of pretrial release from custody

Citation          
Electronic or handwritten ticket generally issued by law enforcement officer

Complaint      
Formal charging document filed by prosecuting attorney

Information
An accusation of some criminal offense in the nature of an indictment, but which is presented by a competent public officer such as a county attorney instead of a grand jury.

Journal entry 
This is the written record of a hearing’s proceedings in summary form.

Motion                       
Application to court to obtain a ruling or order in favor of applicant

Pre-sentence Report (PSI)     
Investigation of defendant completed by probation; contains personal information, criminal history, and screenings; designed to provide information to the Court for sentencing purposes. The PSI is confidential.

Pretrial Release
 

Probable Cause         
A Constitutionally prescribed standard of proof; a reasonable ground for belief in the existence of certain facts.

 

 

Revised 1/2019

Original 2005 County Court Chapters

Editor/Lead Author:

• Judge Todd Hutton

Pre-Trial Detention and Bonds  

• Judge Laurie Yardley, Lincoln
• Judge Alan Brodbeck, O’Neill

Arraignments and Pre-Trial Hearings     

• Judge Laurie Yardley, Lincoln
• Judge Alan Brodbeck, O’Neill

Trial – Bench and Jury   

• Judge Mac Martin, Grand Island

Probation – Services provided to the Court and to the Community

• Ellen Fabian Brokofsky, Chief Probation Officer, Papillion

Sentencing        

• Judge Jeffrey Marcuzzo, Omaha

2018 Updates to County Court Materials

• ​Judge Linda Bauer, Fairbury

2018 Addition of District Court Criminal Materials

• Judge Stefanie Martinez, Papillion
• Judge Leigh Ann Retelsdorf, Omaha

2019 Editing by Professional Journalist

• Lori Pilger, Lincoln Journal Star