per se rule in Nebraska

2018State v. Narcisse , 260 Neb. 55 , 615 N.W.2d 110 (2000).

2018State v. Narcisse , 260 Neb. 55 , 615 N.W.2d 110 (2000).

2013In considering whether to adopt a per se rule, the Seventh Circuit has noted that “the constitutional focus is on whether the federal court is satisfied that the attorney is competent and has autho- rized him to practice law.”36 Similarly, the Fifth Circuit has 31 Id. at 715, 613 N.W.2d at 6 (quoting United States v. Mouzin, 785 F.2d 682 (9th Cir. 1986)). 32 See id. (discussing Vance v. Lehman, 64 F.3d 119 (3d Cir. 1995)). 33 Id. at 715, 613 N.W.2d at 6 (quoting United States v. Mouzin, supra note 31 ). 34 Id. at 717 , 613 N.W.2d at 7 . 35 Id. at 719 , 613 N.W.2d at 8 . 36 U.S. v. Williams, 93

2013In considering whether to adopt a per se rule, the Seventh Circuit has noted that “the constitutional focus is on whether the federal court is satisfied that the attorney is competent and has autho- rized him to practice law.”36 Similarly, the Fifth Circuit has 31 Id. at 715, 613 N.W.2d at 6 (quoting United States v. Mouzin, 785 F.2d 682 (9th Cir. 1986)). 32 See id. (discussing Vance v. Lehman, 64 F.3d 119 (3d Cir. 1995)). 33 Id. at 715, 613 N.W.2d at 6 (quoting United States v. Mouzin, supra note 31 ). 34 Id. at 717 , 613 N.W.2d at 7 . 35 Id. at 719 , 613 N.W.2d at 8 . 36 U.S. v. Williams, 93

2022That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect. 30 The McNeely majority thus declined to adopt a per se rule regarding exigency, reasoning that doing so would be incon- sistent with the “careful case-by-case assessment of exigency” 30 Id., 569 U.S. at 152-53 , quoting Richards v. Wisconsin, 520 U.S. 385 , 117 S. Ct. 1416 , 137 L.

2022That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect. 30 The McNeely majority thus declined to adopt a per se rule regarding exigency, reasoning that doing so would be incon- sistent with the “careful case-by-case assessment of exigency” 30 Id., 569 U.S. at 152-53 , quoting Richards v. Wisconsin, 520 U.S. 385 , 117 S. Ct. 1416 , 137 L.

2013In doing so, we noted that other courts adopted a per se determina- tion of ineffectiveness in situations where an attorney (1) was “unsuccessful in passing the bar examination and thus was never admitted to practice as a lawyer,”25 (2) was admitted to practice law “on the basis of false representations regard- ing his legal education,”26 (3) was denied a license to practice law “due to lack of moral character,”27 (4) had “submitted his resignation to the state bar with disciplinary proceedings pending,”28 and (5) was deemed incompetent to represent clients.29 In contrast, we cited to other co

2000See, also, People v. Hinkley, 193 Cal. App. 3d 383 , 238 Cal. Rptr. 272 (1987) (holding criminal defendant received per se ineffective assistance of counsel when his attorney’s practice had been taken over by state bar and court pursuant to statute which allowed takeover after determination that attorney was incompetent to represent clients); Ex Parte Williams, 870 S.W.2d 343 (Tex. App. 1994) (holding representation per se ineffective where attorney disbarred 2 months before trial and therefore no longer “counsel” within meaning of Sixth Amendment under Texas law which provides disbarred lawye

2013In considering whether to adopt a per se rule, the Seventh Circuit has noted that “the constitutional focus is on whether the federal court is satisfied that the attorney is competent and has autho- rized him to practice law.”36 Similarly, the Fifth Circuit has 31 Id. at 715, 613 N.W.2d at 6 (quoting United States v. Mouzin, 785 F.2d 682 (9th Cir. 1986)). 32 See id. (discussing Vance v. Lehman, 64 F.3d 119 (3d Cir. 1995)). 33 Id. at 715, 613 N.W.2d at 6 (quoting United States v. Mouzin, supra note 31 ). 34 Id. at 717 , 613 N.W.2d at 7 . 35 Id. at 719 , 613 N.W.2d at 8 . 36 U.S. v. Williams, 93

2000If a lawyer is authorized by those authorities to practice law, his or her performance on a criminal defendant’s behalf is acceptable for Sixth Amendment purposes so long as the Strickland criteria are not met. 64 F.3d at 122 .

2013In doing so, we noted that other courts adopted a per se determina- tion of ineffectiveness in situations where an attorney (1) was “unsuccessful in passing the bar examination and thus was never admitted to practice as a lawyer,”25 (2) was admitted to practice law “on the basis of false representations regard- ing his legal education,”26 (3) was denied a license to practice law “due to lack of moral character,”27 (4) had “submitted his resignation to the state bar with disciplinary proceedings pending,”28 and (5) was deemed incompetent to represent clients.29 In contrast, we cited to other co

2013In doing so, we noted that other courts adopted a per se determina- tion of ineffectiveness in situations where an attorney (1) was “unsuccessful in passing the bar examination and thus was never admitted to practice as a lawyer,”25 (2) was admitted to practice law “on the basis of false representations regard- ing his legal education,”26 (3) was denied a license to practice law “due to lack of moral character,”27 (4) had “submitted his resignation to the state bar with disciplinary proceedings pending,”28 and (5) was deemed incompetent to represent clients.29 In contrast, we cited to other co

2013In doing so, we noted that other courts adopted a per se determina- tion of ineffectiveness in situations where an attorney (1) was “unsuccessful in passing the bar examination and thus was never admitted to practice as a lawyer,”25 (2) was admitted to practice law “on the basis of false representations regard- ing his legal education,”26 (3) was denied a license to practice law “due to lack of moral character,”27 (4) had “submitted his resignation to the state bar with disciplinary proceedings pending,”28 and (5) was deemed incompetent to represent clients.29 In contrast, we cited to other co

2000For example, in State v. Smith, 476 N.W.2d 511 (Minn. 1991), the court found there was no per se ineffective assistance of counsel when the attorney was suspended during the final day of trial.

2013In doing so, we noted that other courts adopted a per se determina- tion of ineffectiveness in situations where an attorney (1) was “unsuccessful in passing the bar examination and thus was never admitted to practice as a lawyer,”25 (2) was admitted to practice law “on the basis of false representations regard- ing his legal education,”26 (3) was denied a license to practice law “due to lack of moral character,”27 (4) had “submitted his resignation to the state bar with disciplinary proceedings pending,”28 and (5) was deemed incompetent to represent clients.29 In contrast, we cited to other co

2013In doing so, we noted that other courts adopted a per se determina- tion of ineffectiveness in situations where an attorney (1) was “unsuccessful in passing the bar examination and thus was never admitted to practice as a lawyer,”25 (2) was admitted to practice law “on the basis of false representations regard- ing his legal education,”26 (3) was denied a license to practice law “due to lack of moral character,”27 (4) had “submitted his resignation to the state bar with disciplinary proceedings pending,”28 and (5) was deemed incompetent to represent clients.29 In contrast, we cited to other co

1994State v. Englehart, 231 Neb. 579 , 437 N.W.2d 468 (1989); State v. Pope, 213 Neb. 645 , 330 N.W.2d 747 (1983).

1994State v. Englehart, 231 Neb. 579 , 437 N.W.2d 468 (1989); State v. Pope, 213 Neb. 645 , 330 N.W.2d 747 (1983).

2023REZNICEK Cite as 315 Neb. 272 lapse of time in a particular case renders the statement unre- liable. 14 Rather than adopt a per se rule regarding the interval of time, courts view the issue on a case by case basis, 15 with the primary considerations being whether the declaration is substantially contemporaneous with the event in question 16 and whether the declarant had the opportunity to reflect on the event prior to making the statement. 17 As explained by the Supreme Court of North Dakota: There is no per se rule indicating what interval is too long between a person’s perception of an event

2023See, e.g., State v. Connelly, 307 Neb. 495 , 949 N.W.2d 519 (2020); State v. Dickson, 223 Neb. 397 , 389 N.W.2d 785 (1986) (holding statement by mentally ill defend­ant is subject to general rule that statement freely and voluntarily given without any compelling influences is admis- sible).

2023See, e.g., State v. Connelly, 307 Neb. 495 , 949 N.W.2d 519 (2020); State v. Dickson, 223 Neb. 397 , 389 N.W.2d 785 (1986) (holding statement by mentally ill defend­ant is subject to general rule that statement freely and voluntarily given without any compelling influences is admis- sible).

2022That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect. 30 The McNeely majority thus declined to adopt a per se rule regarding exigency, reasoning that doing so would be incon- sistent with the “careful case-by-case assessment of exigency” 30 Id., 569 U.S. at 152-53 , quoting Richards v. Wisconsin, 520 U.S. 385 , 117 S. Ct. 1416 , 137 L.

2022That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect. 30 The McNeely majority thus declined to adopt a per se rule regarding exigency, reasoning that doing so would be incon- sistent with the “careful case-by-case assessment of exigency” 30 Id., 569 U.S. at 152-53 , quoting Richards v. Wisconsin, 520 U.S. 385 , 117 S. Ct. 1416 , 137 L.

2021State v. Vanness, 300 Neb. 159 , 912 N.W.2d 736 (2018).

2021State v. Vanness, 300 Neb. 159 , 912 N.W.2d 736 (2018).

2016LaFave et al., Criminal Procedure § 11.8(b) at 848-49 (3d ed. 2007). - 411 - Nebraska A dvance Sheets 292 Nebraska R eports STATE v. BAIN Cite as 292 Neb. 398 Sixth Amendment.23 Even though the prosecutor had not pur- posely obtained the information, he had used it to impeach the defendant at trial.

2016So Morrison “left open the possibility that the Court might adopt a per se standard for those state invasions of the lawyer-client relationship that are not supported by any legitimate state motivation.”22 After the Court decided Weatherford and Morrison, other federal and state courts carved out a court’s duty if the facts showed that investigators or a prosecutor obtained a defendant’s privileged attorney- client communications. (b) Federal Courts of Appeals Decisions The Sixth Circuit has held that if a prosecutor obtains privi- leged communications and uses that information at trial to the

2016So Morrison “left open the possibility that the Court might adopt a per se standard for those state invasions of the lawyer-client relationship that are not supported by any legitimate state motivation.”22 After the Court decided Weatherford and Morrison, other federal and state courts carved out a court’s duty if the facts showed that investigators or a prosecutor obtained a defendant’s privileged attorney- client communications. (b) Federal Courts of Appeals Decisions The Sixth Circuit has held that if a prosecutor obtains privi- leged communications and uses that information at trial to the

2016As noted by the Pennsylvania Supreme Court in Brady v. Urbas, 111 A.3d 1155 (Pa. 2015), sometimes the evidence may be relevant to the question of negligence, if, for example, the standard of care requires that the doctor discuss certain risks with the patient.

2013In doing so, we noted that other courts adopted a per se determina- tion of ineffectiveness in situations where an attorney (1) was “unsuccessful in passing the bar examination and thus was never admitted to practice as a lawyer,”25 (2) was admitted to practice law “on the basis of false representations regard- ing his legal education,”26 (3) was denied a license to practice law “due to lack of moral character,”27 (4) had “submitted his resignation to the state bar with disciplinary proceedings pending,”28 and (5) was deemed incompetent to represent clients.29 In contrast, we cited to other co

2013In doing so, we noted that other courts adopted a per se determina- tion of ineffectiveness in situations where an attorney (1) was “unsuccessful in passing the bar examination and thus was never admitted to practice as a lawyer,”25 (2) was admitted to practice law “on the basis of false representations regard- ing his legal education,”26 (3) was denied a license to practice law “due to lack of moral character,”27 (4) had “submitted his resignation to the state bar with disciplinary proceedings pending,”28 and (5) was deemed incompetent to represent clients.29 In contrast, we cited to other co

2013In doing so, we noted that other courts adopted a per se determina- tion of ineffectiveness in situations where an attorney (1) was “unsuccessful in passing the bar examination and thus was never admitted to practice as a lawyer,”25 (2) was admitted to practice law “on the basis of false representations regard- ing his legal education,”26 (3) was denied a license to practice law “due to lack of moral character,”27 (4) had “submitted his resignation to the state bar with disciplinary proceedings pending,”28 and (5) was deemed incompetent to represent clients.29 In contrast, we cited to other co

2013Nebraska Advance Sheets STATE v. VANDERPOOL 123 Cite as 286 Neb. 111 stated that “the key to adequate representation is not technical license to practice in the jurisdiction involved, but a credential from some forum demonstrating the specialized knowledge of a lawyer.”37 [11] The logical implication of placing such focus on sub- stantive requirements when considering whether to apply a per se rule is that the failure to meet technical licensing require- ments does not render an attorney per se ineffective.

2013Nebraska Advance Sheets STATE v. VANDERPOOL 123 Cite as 286 Neb. 111 stated that “the key to adequate representation is not technical license to practice in the jurisdiction involved, but a credential from some forum demonstrating the specialized knowledge of a lawyer.”37 [11] The logical implication of placing such focus on sub- stantive requirements when considering whether to apply a per se rule is that the failure to meet technical licensing require- ments does not render an attorney per se ineffective.

2013DIST. 763 Cite as 286 Neb. 755 changes in mandatory bargaining topics is a per se violation of the duty to bargain in good faith.

2013Id.

2002The Fifth Circuit in U.S. v. Bishop, 264 F.3d 535 (5th Cir. 2001), declined to adopt a per se presumption of bias except in extreme circumstances.