Neb. Rev. Stat. » Chapter 29
Nebraska Revised Statutes

Neb. Rev. Stat. § 29-2102 (2026)

New trial; affidavits; when required; motion; hearing

✓ text as last checked Oct. 2026 (this copy records no edition or section history)
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(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.

Notes of Decisions
Cited in 28 cases (13 in the last 5 years), 1931–2026 · leading case: State v. Cross, 900 N.W.2d 1 (Neb. 2017).
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State v. Cross, 900 N.W.2d 1 (Neb. 2017). · cites it 23× “FACTS In 2009, Cross was charged with second degree assault and use of a weapon to commit a felony for allegedly beating Pedro Pacheco with a baseball bat.1 Before trial, Cross’ appointed counsel, Richard DeForge, was allowed to withdraw based on a conflict of interest.”
State v. Boppre, 995 N.W.2d 28 (Neb. 2023). · cites it 43× “§ 29-2102 (2) (Reissue 2016) are satisfied if the motion and supporting affidavits, depositions, or oral testimony set forth sufficient facts which, if true, establish that (1) the new evidence existed at the time of trial but could not, with reasonable diligence, have been…”
State v. Hill, 955 N.W.2d 303 (Neb. 2021). · cites it 25× “But the majority repeats Hill’s complaint in this regard often enough that readers might suspect there is something to it. There is not.”
State v. Madren, 954 N.W.2d 881 (Neb. 2021). · cites it 9× “§ 29-2102 (2) (Reissue 2016) without conducting an evidentiary hearing.”
State v. Brown, 965 N.W.2d 388 (Neb. 2021). · cites it 4× “Under § 29-2102(2), the court shall grant a hearing on the motion and determine the issues and make findings of fact and conclusions of law if the motion for new trial and supporting documents set forth facts which, if true, would materially affect the substantial rights of the…”
State v. Bartel, 953 N.W.2d 224 (Neb. 2021). · cites it 2× “He claims that because the order was not entered until 8 months after the jury announced a guilty verdict following his county court trial, he could not possibly have discovered it and produced it at trial, no matter how much diligence he would have exercised.”
State v. Blocher, 986 N.W.2d 275 (Neb. 2023). · cites it 2× “The affidavit did not provide any additional information beyond what was disclosed in the letters regarding the nature of Idigima’s crimes or her involvement in Blocher’s case.”
State v. Mills, 258 N.W.2d 628 (Neb. 1977). · cites it 2× “” The affidavit supporting defendant’s motion, as required by section 29-2102, R. R. S. 1943, has previously been summarized.”
State v. Cross, 297 Neb. 154 (Neb. 2017). · cites it 24× “FACTS In 2009, Cross was charged with second degree assault and use of a weapon to commit a felony for allegedly beating Pedro Pacheco with a baseball bat.1 Before trial, Cross’ appointed counsel, Richard DeForge, was allowed to withdraw based on a conflict of interest.”
State v. Peery, 287 N.W.2d 71 (Neb. 1980). · cites it 4× “Subsequently, defendant filed a motion for rehearing on the motion for new trial based on newly discovered evidence. The court overruled this motion.”
State v. Harris, 948 N.W.2d 736 (Neb. 2020). “§ 29-4123 (2) (Reissue 2016) of the DNA Testing Act such that an appeal arising from a motion to vacate and set aside a judgment under § 29-4123(2) does not deprive a trial court of jurisdiction to consider a motion for new trial filed under § 29-2101(6).”
Carlsen v. State, 261 N.W. 339 (Neb. 1935). · cites it 2× “” Section 29-2102: “The causes enumerated in subdivisions two, three and five of the next preceding section must be sustained by affidavits showing their truth, and may be controverted by affidavits.”
Show all 28 citing cases →
Neb. Rev. Stat. § 29-2102(1): 11 cases
State v. Boppre, 995 N.W.2d 28 (Neb. 2023). “§ 29-2102 (2) (Reissue 2016) are satisfied if the motion and supporting affidavits, depositions, or oral testimony set forth sufficient facts which, if true, establish that (1) the new evidence existed at the time of trial but could not, with reasonable diligence, have been…”
State v. Cross, 900 N.W.2d 1 (Neb. 2017). “FACTS In 2009, Cross was charged with second degree assault and use of a weapon to commit a felony for allegedly beating Pedro Pacheco with a baseball bat.1 Before trial, Cross’ appointed counsel, Richard DeForge, was allowed to withdraw based on a conflict of interest.”
State v. Hill, 955 N.W.2d 303 (Neb. 2021). “But the majority repeats Hill’s complaint in this regard often enough that readers might suspect there is something to it. There is not.”
State v. Cross, 297 Neb. 154 (Neb. 2017). “FACTS In 2009, Cross was charged with second degree assault and use of a weapon to commit a felony for allegedly beating Pedro Pacheco with a baseball bat.1 Before trial, Cross’ appointed counsel, Richard DeForge, was allowed to withdraw based on a conflict of interest.”
State v. Tucker, No. A-22-809, 2023 WL 3474034 (Neb. Ct. App. May 16, 2023).
Neb. Rev. Stat. § 29-2102(2): 14 cases
State v. Cross, 900 N.W.2d 1 (Neb. 2017). “FACTS In 2009, Cross was charged with second degree assault and use of a weapon to commit a felony for allegedly beating Pedro Pacheco with a baseball bat.1 Before trial, Cross’ appointed counsel, Richard DeForge, was allowed to withdraw based on a conflict of interest.”
State v. Boppre, 995 N.W.2d 28 (Neb. 2023). “§ 29-2102 (2) (Reissue 2016) are satisfied if the motion and supporting affidavits, depositions, or oral testimony set forth sufficient facts which, if true, establish that (1) the new evidence existed at the time of trial but could not, with reasonable diligence, have been…”
State v. Hill, 955 N.W.2d 303 (Neb. 2021). “But the majority repeats Hill’s complaint in this regard often enough that readers might suspect there is something to it. There is not.”
State v. Madren, 954 N.W.2d 881 (Neb. 2021). “§ 29-2102 (2) (Reissue 2016) without conducting an evidentiary hearing.”
State v. Brown, 965 N.W.2d 388 (Neb. 2021). “Under § 29-2102(2), the court shall grant a hearing on the motion and determine the issues and make findings of fact and conclusions of law if the motion for new trial and supporting documents set forth facts which, if true, would materially affect the substantial rights of the…”
Neb. Rev. Stat. § 29-2102(3): 2 cases
State v. Harris, 948 N.W.2d 736 (Neb. 2020). “§ 29-4123 (2) (Reissue 2016) of the DNA Testing Act such that an appeal arising from a motion to vacate and set aside a judgment under § 29-4123(2) does not deprive a trial court of jurisdiction to consider a motion for new trial filed under § 29-2101(6).”
State v. Harris, 307 Neb. 237 (Neb. 2020).
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