Criminal use; evidence of similar
crimes in sexual assault cases.
(1) In a criminal case in which the accused is accused of
an offense of sexual assault, evidence of the accused's commission of another
offense or offenses of sexual assault is admissible if there is clear and
convincing evidence otherwise admissible under the Nebraska Evidence Rules
that the accused committed the other offense or offenses. If admissible, such
evidence may be considered for its bearing on any matter to which it is relevant.
(2) In a
case in which the prosecution intends to offer evidence under this section,
the prosecuting attorney shall disclose the evidence to the accused, including
statements of witnesses or a summary of the substance of any testimony that
is expected to be offered, at least fifteen days before the scheduled date
of trial or at such later time as the court may allow for good cause.
(3) Before admitting
evidence of the accused's commission of another offense or offenses of sexual
assault under this section, the court shall conduct a hearing outside the
presence of any jury. At the hearing, the rules of evidence shall apply and
the court shall apply a section 27-403 balancing and admit the evidence unless
the risk of prejudice substantially outweighs the probative value of the evidence.
In assessing the balancing, the court may consider any relevant factor such
as (a) the probability that the other offense occurred, (b) the proximity
in time and intervening circumstances of the other offenses, and (c) the similarity
of the other acts to the crime charged.
section shall not be construed to limit the admission or consideration of
evidence under any other section of the Nebraska Evidence Rules.
Source:Laws 2009, LB97, § 5.
The trial court did not err in admitting evidence under this section using the following procedures: (1) hearing testimony from the accused's prior victims prior to trial, comparing the testimony to the current charges, making a conditional ruling of admissibility, and prohibiting the State from mentioning or presenting evidence of the prior assaults at trial until after the evidence of the current alleged victims, and (2) after the State presented evidence of the current victims at trial and gave notice of its intent to present evidence under this section, making a final determination of admissibility outside the presence of the jury. State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013).
This section allows evidence of prior offenses of sexual assault to prove propensity. State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013).
This section requires a hearing outside the presence of the jury before the court admits evidence of the accused's commission of another offense of sexual assault, but it does not impose any time requirement as to when the hearing must be held. State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013).
Under the plain language of subsection (3)(c) of this section, the court is to compare the similarity of the other acts to the crime charged. State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013).
The question whether evidence of other conduct is too remote in time is largely within the discretion of the trial court. Remoteness, in and of itself, does not necessarily justify exclusion of evidence. State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012).
This section does not violate the Ex Post Facto Clauses of the federal and state Constitutions. State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012).
Under this section, evidence of a prior sexual assault is admissible if there is clear and convincing evidence otherwise admissible under the Nebraska Evidence Rules. As such, this section governs the admissibility of evidence, not its sufficiency. State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012).