Nebraska

Overview

Nebraska occupies a unique space in the American legal landscape—rural yet centralized, politically conservative yet institutionally cautious. While its courts and statutes nominally recognize the constitutional requirements of Brady and Giglio, the state lacks a formal infrastructure for tracking or disclosing officer misconduct that could impair credibility. Prosecutorial offices operate with significant discretion, and law enforcement agencies are not required to report disciplinary findings to prosecutors. The result is a disclosure system governed more by habit than by mandate. Without a statewide Giglio list, standardized interagency reporting, or transparency protocols, Nebraska remains vulnerable to due process failures—even as it outwardly projects law-and-order stability.

Brief Description of Legal Landscape

Nebraska has 93 counties, each served by either a County Attorney or District Attorney, depending on jurisdiction. Felony prosecutions are overseen by the Nebraska Attorney General in select cases, but the vast majority are managed at the county level. The state’s criminal discovery process is governed by Nebraska Revised Statute § 29-1912, which provides for the disclosure of evidence “material to the preparation of the defense,” and by the Nebraska Rules of Professional Conduct, particularly Rule 3.8(d), which mirrors Brady obligations.

Law enforcement officers in Nebraska are certified through the Nebraska Law Enforcement Training Center (NLETC) under the Nebraska Commission on Law Enforcement and Criminal Justice. Although decertification procedures exist for misconduct, they are narrow in scope, and there is no mechanism requiring officers or departments to report findings of dishonesty or bias to prosecutors or courts. There is also no requirement that prosecutors track, record, or disclose officer credibility impairments, and no public registry of decertified or disciplined officers.

Historical Context

Nebraska has not seen the volume of high-profile exonerations or scandals found in larger states, but that relative quietude may be misleading. In 2017, a review of several Douglas County (Omaha) convictions revealed prosecutors had failed to disclose deals with informants and prior misconduct by officers. In rural counties, long-standing relationships between police and prosecutors often blur lines of accountability, leaving little incentive—or mechanism—for candid disclosures.

The Beatrice Six case remains the most notorious miscarriage of justice in the state’s recent history. Six individuals were wrongfully convicted of rape and murder in 1989 based on false confessions, prosecutorial suppression of DNA evidence, and reliance on discredited police techniques. Their eventual exoneration in the 2000s revealed deep flaws in Nebraska’s willingness and ability to confront institutional failure—flaws that persist today in the form of informal, undocumented disclosure practices.

Legal Framework and Precedents

Constitutional Provisions and State Statutes

Nebraska guarantees due process and confrontation rights under Article I, Sections 3 and 11 of the Nebraska Constitution. Key legal authorities include:

• Neb. Rev. Stat. § 29-1912(1)(e): Requires the state, upon request, to disclose material known to the prosecution that may be favorable to the accused. There is no requirement for automatic or affirmative disclosure.

• Nebraska Rules of Professional Conduct Rule 3.8(d): Requires prosecutors to disclose evidence that tends to negate guilt or mitigate the offense or sentence—even without a request from defense counsel.

• Nebraska Public Records Statutes (Neb. Rev. Stat. §§ 84-712 to 84-712.09): These provide limited access to public records, but police personnel and internal affairs records are routinely exempted under privacy exceptions.

There is no statutory obligation for law enforcement agencies to notify prosecutors of disciplinary action related to dishonesty, and no requirement that prosecutors maintain a Giglio list or share impeachment-related information across cases or jurisdictions.

Relevant Case Law and Judicial Interpretations

Nebraska appellate courts have acknowledged Brady obligations in principle but have not extended them into enforceable prosecutorial infrastructure:

• State v. Beers, 211 Neb. 729 (1982): Established that the suppression of material exculpatory evidence is grounds for reversal but narrowly applied the materiality standard.

• State v. Davlin, 272 Neb. 139 (2006): Held that prosecutors must disclose exculpatory evidence within their knowledge or that of law enforcement, but declined to address institutional requirements for ongoing disclosure tracking.

• State v. Hessler, 274 Neb. 478 (2007): The court emphasized that credibility evidence about government witnesses falls under Brady but left its disclosure to prosecutorial discretion and timing.

Overall, the courts have accepted the importance of Giglio-type material but have not required institutional mechanisms for its preservation or proactive disclosure.

Implementation and Enforcement

Law Enforcement Policies and Training

The Nebraska Commission on Law Enforcement and Criminal Justice oversees certification and minimum training standards for law enforcement officers. However, it does not require departments to train officers on Brady or Giglio, nor does it require reporting of internal disciplinary actions to prosecutors.

Internal affairs records and disciplinary findings are typically held in-house by police departments and are not disclosed unless compelled by court order. Even when an officer has been found to have falsified a report, committed perjury, or violated civil rights, that information may never be shared with local prosecutors—or if shared, is done informally with no documentation or policy framework.

Some larger jurisdictions like Douglas County (Omaha) and Lancaster County (Lincoln) have developed informal “Do Not Call” lists or awareness practices, but these are not shared with defense counsel or other counties. Most rural counties lack the capacity or will to track officer credibility systematically.

Oversight Mechanisms and Accountability Structures

There is no independent prosecutorial oversight board in Nebraska. The Nebraska Supreme Court’s Counsel for Discipline investigates ethical complaints against attorneys, including prosecutors, but public discipline for Brady violations is exceedingly rare.

There is also no mechanism for the public—or other prosecutors—to know whether an officer in a given case has previously been found to be unreliable. POST decertification is rare and limited mostly to felony convictions. Even decertified officers are not cataloged in a way that supports Giglio compliance.

The Attorney General’s Office has no supervisory role over county prosecutors in routine felony cases, and there is no state agency charged with auditing or enforcing Brady/Giglio compliance.

Case Studies from the State

Significant Cases Illustrating Issues of Candor

1. The Beatrice Six (1989–2009)
   Six individuals were convicted of murder and rape based on flawed police tactics and withheld exculpatory DNA evidence. The case exposed serious failures by both law enforcement and prosecutors in disclosing favorable evidence and highlighted the absence of any structural oversight.

2. Douglas County Jailhouse Informant Scandal (2015–2017)
   Prosecutors failed to disclose benefits given to jailhouse informants in multiple cases. The resulting litigation exposed systemic failures to memorialize or disclose deals with key witnesses, raising concerns about ethical violations and due process failures.

3. State v. Peetz (2013)
   The defense discovered that the arresting officer had previously been disciplined for falsifying information on a warrant—information never disclosed by the prosecutor. Although the court upheld the conviction, the case underscored the dangers of undisclosed impeachment material in routine prosecutions.

Outcomes and Implications

These cases reveal the human cost of Nebraska’s ad hoc approach to disclosure. Without formal mechanisms for tracking or sharing credibility-related information, prosecutors may unintentionally rely on tainted testimony, and defense attorneys are left to uncover critical evidence on their own. While individual prosecutors may act in good faith, the absence of systems and mandates renders such good faith inconsistent—and justice unreliable.

Challenges and Gaps

Identified Issues within the State’s System

• No Giglio Lists: County attorneys are not required to track or disclose officers with credibility issues.

• No Interagency Reporting: Police departments are not required to notify prosecutors of sustained misconduct, and POST does not coordinate with courts or prosecutors.

• Opaque Disciplinary Records: Internal affairs files are shielded from public and often from judicial scrutiny.

• Inconsistent Training and Practice: Neither officers nor prosecutors receive mandatory Brady/Giglio training, and practices vary by jurisdiction.

Legislative and Institutional Barriers

Efforts to create a centralized Brady system or to amend public records laws to allow greater transparency have faced resistance from law enforcement associations and legislators concerned about officer privacy. Nebraska’s strong emphasis on local control and institutional discretion has prevented the development of a statewide solution, leaving gaps particularly pronounced in rural and under-resourced jurisdictions.

Recommendations

Suggested Improvements in Law, Policy, and Practice

1. Mandate County-Level Giglio Tracking
   Require all prosecutors to maintain a list of officers with sustained findings of dishonesty, bias, or constitutional violations, and disclose it to defense counsel as appropriate.

2. Establish Interagency Notification Requirements
   Require police departments to notify prosecutors within 30 days of any sustained disciplinary action that may impair an officer’s credibility.

3. Integrate POST and Prosecutorial Systems
   Amend POST procedures to include coordination with prosecutors when an officer is decertified or sanctioned for misconduct relevant to testimony.

4. Update Discovery Rules (Neb. Rev. Stat. § 29-1912)
   Add a statutory requirement for affirmative disclosure of impeachment evidence—including internal affairs findings and personnel discipline.

Recommendations for Enhanced Transparency and Accountability

1. Amend Nebraska’s Public Records Law
   Allow limited public access to sustained misconduct findings involving police dishonesty or civil rights violations, with appropriate redactions.

2. Create a Statewide Brady/Giglio Disclosure Unit
   Establish a unit within the Attorney General’s Office or Supreme Court to audit compliance, provide training, and investigate complaints.

3. Launch a Public-Facing Misconduct Database
   Provide a searchable online tool listing officers with Giglio-impairing findings, modeled after national best practices.

4. Judicial Review of Officer Testimony
   Require that trial courts conduct pretrial admissibility hearings when officers with known credibility issues are expected to testify.

Conclusion

In Nebraska, truth remains largely a matter of prosecutorial discretion. The state’s lack of structural safeguards, interagency communication, and public transparency continues to place defendants at risk of unfair trials. Candor is not self-enforcing—it must be codified, tracked, and shared. Until Nebraska takes systemic action to mandate disclosure and accountability, its courtroom promises of justice will be undermined by the very silence they fail to break.