Recent Cases: Evidence — Privilege Against Self-Incrimination — Waiver and its Effect Upon Subsequent Proceedings

Witness testified before a federal grand jury regarding his participation in acts regarded by the grand jury as constituting a conspiracy to commit an offense against or to defraud the United States. The grand jury returned an indictment naming the witness as a co-con­spirator. At the trial of the other co-conspirators the government call­ed the witness and asked him a series of questions similar to those answered by him at the grand jury investigation. He refused to answer these questions on the ground that his answers would tend to incriminate him. Held: the witness was privileged to refuse to answer these questions. His voluntary testimony at the grand jury investiga­tion did not constitute a waiver of his privilege against self-incrimination. This seems to be a case of first impression in the federal courts. Earlier, federal cases have held, on the theory of waiver, that a witness who has already incriminated himself by his testimony before a grand jury cannot stop short of full disclosure to the grand jury of all the facts surrounding his crime, unless these facts tend to further in­criminate him concerning other crimes. The record of this testimony has been used as evidence in a later criminal prosecution. However, in the instant case, the government, on the theory of waiver, sought to force the witness, himself, to divulge the evidence at the subsequent criminal prosecution

The Procedural Effect of Res Ipsa Loquitur in Nebraska

Since Chief Justice Pollock first used the phrase res ipsa loquitur in the opinion of Byrne v. Boadle, there has been disagreement regarding the exact meaning of the phrase and more particularly its procedural effect. Although various authorities have their own refinements, they generally adhere to one of three different views as to just what the phrase means. Dean Prosser states that the doctrine is nothing more than a form of circumstantial evidence and that the procedural effect of the doctrine may be great or small depending upon the facts of the particular case. A second theory proposes that res ipsa loquitur is a rule of substantive law which compels the court to take judicial notice of the fact that the defendant was negligent. There is a third view that the doctrine is merely a part of the best evidence rule, i.e., where the adverse party has access to the facts the burden of proof shifts to him

The False Pretenses Statute In Nebraska

Nebraska\u27s criminal code is relatively unique in that false promises as distinguished from misrepresentations of past or existing facts are included within the ambit of the statutory crime of obtaining property by false pretenses. This crime, a late-comer to the larceny family, was designed to bridge the gap between larceny by trick or devise and the limited common law offense of cheating. In most states this statutory innovation requires proof of a false misrepresentation as to facts past or existing. A false pretense as to something which will happen in the future or a mere promise to do something is insufficient because it is regarded as the equivalent of puffing or seller\u27s talk. In Nebraska, however, ... a promissory representation as to some future action to be taken by the person making the representation where made with the present intent that such future action would not be performed or carried out .... is a false pretense within the statute

The Procedural Effect of Res Ipsa Loquitur in Nebraska

Since Chief Justice Pollock first used the phrase res ipsa loquitur in the opinion of Byrne v. Boadle, there has been disagreement regarding the exact meaning of the phrase and more particularly its procedural effect. Although various authorities have their own refinements, they generally adhere to one of three different views as to just what the phrase means. Dean Prosser states that the doctrine is nothing more than a form of circumstantial evidence and that the procedural effect of the doctrine may be great or small depending upon the facts of the particular case. A second theory proposes that res ipsa loquitur is a rule of substantive law which compels the court to take judicial notice of the fact that the defendant was negligent. There is a third view that the doctrine is merely a part of the best evidence rule, i.e., where the adverse party has access to the facts the burden of proof shifts to him

Recent Cases: Evidence — Privilege Against Self-Incrimination — Waiver and its Effect Upon Subsequent Proceedings

Witness testified before a federal grand jury regarding his participation in acts regarded by the grand jury as constituting a conspiracy to commit an offense against or to defraud the United States. The grand jury returned an indictment naming the witness as a co-con­spirator. At the trial of the other co-conspirators the government call­ed the witness and asked him a series of questions similar to those answered by him at the grand jury investigation. He refused to answer these questions on the ground that his answers would tend to incriminate him. Held: the witness was privileged to refuse to answer these questions. His voluntary testimony at the grand jury investiga­tion did not constitute a waiver of his privilege against self-incrimination. This seems to be a case of first impression in the federal courts. Earlier, federal cases have held, on the theory of waiver, that a witness who has already incriminated himself by his testimony before a grand jury cannot stop short of full disclosure to the grand jury of all the facts surrounding his crime, unless these facts tend to further in­criminate him concerning other crimes. The record of this testimony has been used as evidence in a later criminal prosecution. However, in the instant case, the government, on the theory of waiver, sought to force the witness, himself, to divulge the evidence at the subsequent criminal prosecution

Criminal Procedure—Discovery Practice in Nebraska

Determining the guilt or innocence of the accused is one of the ultimate purposes of any criminal proceeding. To accomplish this purpose it is necessary to attempt a reconstruction of what occurred in the past. Hence, the function of a trial is to bring to light all of the facts which are relevant to the alleged crime or defenses which are the subject of the trial. Formerly the “sporting” theory of justice was widespread, and under it the fact-finding processes of the courts took on some of the aspects of an athletic contest. These were truly adversary proceedings, sometimes to such an extent that the emphasis seemed to bear more upon the tactical skill and finesse of the respective advocates than upon the real purpose of a trial, namely, a correct and complete revelation of all pertinent facts. The adoption in 1946 of the Federal Rules of Criminal Procedure is the most notable attempt in recent years to modify the “sporting” theory.” One of the most important innovations wrought by the adoption of these rules is the development of various discovery devices through which various elements of opposing counsel’s case may be brought to light. Of course, state as well as federal courts are gradually reforming their judicial processes, and improvements in the processes of state courts often embody many of the same principles found in the federal rules. As these devices developed the civil courts accepted and used them long before the criminal courts; even today in most jurisdictions discovery practice in criminal proceedings is far more limited than in civil actions