reversible error of improper admission of evidence does not bar retrial if all evidence, whether erroneously admitted or not, supports the action for the trial court or jury
How later courts described this case
- reversible error of improper admission of evidence does not bar retrial if all evidence, whether erroneously admitted or not, supports the action for the trial court or jury
- involving stopwatch used to measure time
Written by the judges who cited it.
The opinion
White, J.,
concurring in part, and in part dissenting.
The majority cites Burks and Lockhart for the proposition that mere trial error does not bar retrial if all the evidence, whether erroneously admitted or not, supports the action of the *243 trial court or jury. Both cases are based upon the 5th and 14th amendments to the U.S. Constitution and thus comprise federal constitutional law.
I believe the better approach would be to follow this court’s decision in State v. Palmer, 224 Neb. 282 , 399 N.W.2d 706 (1986), where we considered whether the remaining evidence was sufficient, absent the procedural or “trial error.” Although in Palmer we did not explicitly base our ruling on Neb. Const, art. I, § 12, today’s decision overrules Palmer .
I would reverse and dismiss.