Get Full Government Meeting Transcripts, Videos, & Alerts Forever!
Get email alerts on the Digital Evidence Discovery topic
No spam. Unsubscribe anytime.
Defense access to seized phones and digital evidence debated in Judiciary Committee hearing on LB 93
Summary
LB 93 would clarify that, if prosecutors have an electronic communication device or analysis that is material to a criminal case, a court may order the device or data be made available so a defense expert can conduct similar tests; sponsors framed it as a statutory clarification to ensure judges can order reciprocal expert access.
Sen. George Dungan told the Judiciary Committee LB 93 clarifies and updates Nebraska’s pretrial discovery rules to address seized electronic evidence and the reciprocal disclosure of expert reports and opinions.
Dungan said judges already sometimes order defense access to evidence (for example, DNA and, in some cases, phones), but the statute is ambiguous about whether courts have clear authority to permit defense experts to conduct independent testing of electronic communication devices, computers, or derived data. LB 93 would explicitly allow a court, when appropriate, to order prosecuting attorneys to make such evidence or analyses available for independent testing by a defense expert, subject to judicial safeguards. The bill also would clarify ongoing disclosure obligations if parties obtain additional evidence or an expert changes an opinion.
Criminal defense attorneys told the committee the change is necessary to avoid one-sided access to raw digital data (for instance, Sell‑brite-style extractions) and to let defense experts validate or authenticate screenshots, deleted-message traces, or other device data. Mallory Hughes and Paul Lembrick described cases where only screenshots or partial extracts were initially available and where independent forensic examination resolved authenticity questions and materially affected case outcomes.
County attorneys and the Nebraska County Attorneys Association raised concerns about privacy of third parties, the limits of search-warrant parameters, the potential for defendants to obtain data outside a warrant’s scope, and the cost burden on counties for expert testing when court-appointed counsel is used. Dan Zieg (Nebraska County Attorneys Association) suggested procedural safeguards and protective orders and said he was open to working on narrowly tailored amendments. NACO provided an estimate of potential county costs for appointed counsel experts; defense witnesses and the sponsor pushed back that usage would be limited and costs are incurred as part of providing constitutionally required defense services.
Several senators asked about standards and thresholds for a judge to grant defense access and whether there should be evidentiary showings (e.g., a good‑faith basis that independent testing will be materially relevant). The sponsor and defense witnesses said judges would act as gatekeepers and that existing practice includes judicial conditions and protective orders in cases where courts have allowed independent testing.
No final action was taken; the sponsor said he and stakeholders would work on amendments to address county concerns and define procedural safeguards.
