29-4603. Recovery; claimant; proof required.
439 words·~2 min read·
/ne/chapter-29/29-4603A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
In order to recover under the Nebraska Claims for Wrongful Conviction and Imprisonment Act, the claimant shall prove each of the following by clear and convincing evidence:
(1)That he or she was convicted of one or more felony crimes and subsequently sentenced to a term of imprisonment for such felony crime or crimes and has served all or any part of the sentence;
(2)With respect to the crime or crimes under subdivision
(1)of this section, that the Board of Pardons has pardoned the claimant, that a court has vacated the conviction of the claimant, or that the conviction was reversed and remanded for a new trial and no subsequent conviction was obtained;
(3)That he or she was innocent of the crime or crimes under subdivision
(1)of this section; and
(4)That he or she did not commit or suborn perjury, fabricate evidence, or otherwise make a false statement to cause or bring about such conviction or the conviction of another, with respect to the crime or crimes under subdivision
(1)of this section, except that a guilty plea, a confession, or an admission, coerced by law enforcement and later found to be false, does not constitute bringing about his or her own conviction of such crime or crimes.
Actual innocence under the Wrongful Conviction and Imprisonment Act is akin to factual innocence, while a self-defense claim is relevant to a claim of legal innocence. Marie v. State, 302 Neb. 217, 922 N.W.2d 733 (2019).
Claim preclusion is inapplicable in cases under the Wrongful Conviction and Imprisonment Act. Marie v. State, 302 Neb. 217, 922 N.W.2d 733 (2019).
A defendant alleging a wrongful conviction claim pursuant to this section must plead more than lack of intent to establish "actual innocence of the crime." Nadeem v. State, 298 Neb. 329, 904 N.W.2d 244 (2017).
The term "false statement" as used in this section does not mean a statement that is factually incorrect; a factually inaccurate statement made by one who believes it is true is not a "false statement." Dean v. State, 288 Neb. 530, 849 N.W.2d 138 (2014).
Subdivision
(2)of this section addresses "legal innocence": the absence of one or more procedural or legal bases to support the sentence given a defendant. Hess v. State, 287 Neb. 559, 843 N.W.2d 648 (2014).
Subdivision
(3)of this section addresses "actual innocence": the absence of facts that are prerequisites for the sentence given to a defendant. Hess v. State, 287 Neb. 559, 843 N.W.2d 648 (2014).
This section does not provide for the appointment of counsel. Hess v. State, 287 Neb. 559, 843 N.W.2d 648 (2014).