§ 29-1607 — Information; preliminary examination; required; when

Nebraska § 29-1607

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

No information shall be filed against any person for any offense until such person shall have had a preliminary examination therefor, as provided by law, unless such person shall waive his or her right to such examination, except as otherwise provided in the Uniform Criminal Extradition Act. The preliminary examination shall be conducted as soon as the nature and the circumstances of the case will permit.

Legislative History

Source: Laws 1885, c. 108, § 8, p. 399; R.S.1913, § 9068; C.S.1922, § 10092; C.S.1929, § 29-1607; Laws 1935, c. 66, § 27, p. 231; C.S.Supp.,1941, § 29-1607; R.S.1943, § 29-1607; Laws 1972, LB 1032, § 175; Laws 1980, LB 600, § 1. Cross References: Uniform Criminal Extradition Act, see section 29-758. Annotations: 1. Nature and requisites 2. Waiver 3. Miscellaneous 1. Nature and requisites If an information is filed initially in district court, referred to as a "direct information", such filing is treated in the nature of a complaint until a preliminary hearing is held and, in conformity with this section, after the preliminary hearing is concluded, the filing will then be treated as an information for speedy trial act purposes. State v. Boslau, 258 Neb. 39, 601 N.W.2d 769 (1999). In a prosecution by information, the complaint and information must charge the same offense, but it is sufficient if the charge in the information is substantially the same as that alleged in the complaint. State v. Kelley, 211 Neb. 770, 320 N.W.2d 455 (1982). Preliminary hearing before a county judge not an attorney not violative of this section. State v. Howard, 184 Neb. 274, 167 N.W.2d 80 (1969). Preliminary hearing is not required on complaint charging a misdemeanor. Otte v. State, 172 Neb. 110, 108 N.W.2d 737 (1961). Preliminary hearing is not a criminal trial of person accused. Lingo v. Hann, 161 Neb. 67, 71 N.W.2d 716 (1955). Omission to hold preliminary hearing of a person charged with crime is not jurisdictional. Swanson v. Jones, 151 Neb. 767, 39 N.W.2d 557 (1949). Where it appears that charge in complaint is substantially the same as set forth in information, plea of want of preliminary examination because of variance is unavailing. Van Syoc v. State, 69 Neb. 520, 96 N.W. 266 (1903). Examination made when magistrate is without jurisdiction is not a preliminary examination. White v. State, 28 Neb. 341, 44 N.W. 443 (1889). A preliminary hearing, unless waived, is a prerequisite to a prosecution by information. Bird v. Sigler, 241 F.Supp. 1007 (D. Neb. 1964). A defendant cannot be prosecuted by information until a preliminary hearing is held. Ronzzo v. Sigler, 235 F.Supp. 839 (D. Neb. 1964). 2. Waiver The right to a preliminary hearing is waived by entering a plea of not guilty in the district court. State v. DeJesus, 216 Neb. 907, 347 N.W.2d 111 (1984). Failure to give preliminary hearing is not a jurisdictional defect and may be waived. Drewes v. State, 156 Neb. 319, 56 N.W.2d 113 (1952). Preliminary hearing in a criminal case is waived unless defendant raises that question before he enters a plea of not guilty in the district court. Roberts v. State, 145 Neb. 658, 17 N.W.2d 666 (1945). Right of preliminary hearing may be waived. Meyers v. State, 104 Neb. 356, 177 N.W. 177 (1920). District court has jurisdiction when transcript shows filing of complaint, arraignment and waiver of preliminary hearing before magistrate. Clawson v. State, 96 Neb. 499, 148 N.W. 524 (1914). Plea of not guilty waives objection that preliminary examination was not had. Dinsmore v. State, 61 Neb. 418, 85 N.W. 445 (1901). Transcript showing arraignment of accused and waiver of preliminary examination fulfilled requirements of this section. Korth v. State, 46 Neb. 631, 65 N.W. 792 (1896). Failure to give prisoner preliminary examination is a mere defect, and is waived if not objected to before going to trial. Coffield v. State, 44 Neb. 417, 62 N.W. 875 (1895). 3. Miscellaneous In an informal preliminary hearing, it does not violate the Confrontation Clause to rely on out-of-court statements to determine probable cause for purposes of continuing a defendant's pretrial detention. State v. Anderson, 305 Neb. 978, 943 N.W.2d 690 (2020). A claim that a defendant was not accorded a preliminary hearing and did not waive it, is determinable by a plea in abatement. State v. Forbes, 203 Neb. 349, 278 N.W.2d 615 (1979). The district court is without jurisdiction to try on information one accused of committing a felony within the state unless the defendant is first accorded the privilege of a preliminary examination or waives the same. State v. Forbes, 203 Neb. 349, 278 N.W.2d 615 (1979). Effect of dissemination of hearsay and purported statements of counsel considered in review of order restricting pretrial publicity. State v. Simants, 194 Neb. 783, 236 N.W.2d 794 (1975). Prosecuting attorney cannot delegate authority to file information. Richards v. State, 22 Neb. 145, 34 N.W. 346 (1887).