Follow up: Nebraska Supreme Court on further review reverses Court of Appeals decision to order a new trial when prosecutor failed to disclose a purportedly exculpatory witness statement; Supreme Court (J Miller-Lerman) appears to reject a statutory standard under 29-2001 that would be more lenient to defendants than the Brady standard as the US Supreme Court currently assesses alleged Brady violationsState v Lykens Filed March 10, 2006. No. S-04-844; court of appeals decision reversed. The Court of Appeals had reversed Lykens verdict because the defendant and his attorney discovered after trial that the Fremont police had an exculpatory statement from a witness that the state failed to disclose. The Court of Appeals ruled that the standard for a new trial for failure to disclose evidence was under state statute and federal constitutional law is "when the evidence alleged to be newly discovered was withheld by the State, a defendant is entitled to a new trial if the omitted evidence could have created a reasonable doubt that he or she committed the alleged crime or crimes. (emphasis supplied)" The Supreme Court reverses and finds the standard should be "whether the nature of the evidence at issue was such that the State's failure to disclose it to (Def) prior to trial violated Def's due process rights. In this case, the evidence was not material under the Bagley standard (United States v. Bagley, 473 U.S. 667 , 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)'superseding United States v. Agurs, 427 U.S. 97 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976)and that therefore, the State's failure to disclose it did not violate Lykens' due process rights and was not a sufficiently serious nondisclosure so as to arise to a Brady 373 U.S. 83 violation. Therefore, the district court did not abuse its discretion by denying Lykens' supplemental motion for new trial, and the Court of Appeals' conclusion to the contrary was error. The interview evidence was not of an impeaching nature, nor did it serve directly to exculpate Lykens. Brainard's interview did not deny Lykens a fair trial, and on the contrary, the guilty verdict is worthy of confidence. See Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995) {standard is a verdict worthy of confidence} We conclude that there is not a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. We conclude there was no Brady 373 U.S. 83 violation.