27-101. Rule 101. Scope.

These rules govern proceedings in the courts of the State of Nebraska, except to the extent and with the exceptions stated in section 27-1101.

Source:Laws 1975, LB 279, § 1.

Annotations

In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

When a state evidence rule is substantially similar to a corresponding federal rule of evidence, state courts may look to federal decisions interpreting the corresponding federal rule for guidance in construing the state rule. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

At a juvenile adjudication hearing, the admissibility of evidence is governed by the customary rules of evidence used in trials without a jury. The Nebraska Evidence Rules do not apply at a dispositional hearing. The requirements of due process control a dispositional hearing and the type of evidence which may be used by the State. In re Interest of O.L.D. and M.D.D., 1 Neb. App. 471, 499 N.W.2d 552 (1993).

27-102. Rule 102. Purpose and construction.

These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

Source:Laws 1975, LB 279, § 2.

Annotations

Requiring a renewed objection in the case of a motion in limine, including a motion to redact, is consistent with the principles of “fairness in administration,” discovery of truth, and just determination identified in this section. State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013).

Ruling on admissibility of evidence are discretionary with the trial judge. State v. King, 197 Neb. 729, 250 N.W.2d 655 (1977).

27-103. Rule 103. Rulings on evidence; effect of erroneous ruling; objection; offer of proof; record of offer and ruling; hearing of jury; plain error.

(1) Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and:

(a) In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if a specific ground was not apparent from the context; or

(b) In case the ruling is one excluding evidence, the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked.

(2) The judge may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. He may direct the making of an offer in question and answer form.

(3) In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

(4) Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the judge.

Source:Laws 1975, LB 279, § 3.

Annotations

1. Offer of proof

2. Timely objection

3. Substantial rights

4. Specific objection

5. Miscellaneous

1. Offer of proof

In order to predicate error upon a ruling of the court refusing to permit a witness to testify, or to answer a specific question, the record must show an offer to prove the facts sought to be elicited. State v. Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008); Sturzenegger v. Father Flanagan's Boys' Home, 276 Neb. 327, 754 N.W.2d 406 (2008).

Subsection (1)(b) of this section allows an appellate court to find error in an exclusionary ruling when the substance of the evidence was apparent from the context even without an offer of proof. State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2006).

Pursuant to subsection (1)(b) of this section, error may not be predicated upon a ruling of a trial court excluding testimony of a witness unless the substance of the evidence to be offered by the testimony was made known to the trial judge by offer or was apparent from the context within which the questions were asked. In order to predicate error upon a ruling of the court refusing to permit a witness to testify, or to answer a specific question, the record must show an offer to prove the facts sought to be elicited. Anderson by and through Anderson/Couvillon v. Nebraska Dept. of Soc. Servs., 253 Neb. 813, 572 N.W.2d 362 (1998).

In order to preserve any error before the Supreme Court, the party opposing a motion in limine which was granted must make an offer of proof outside the presence of the jury unless the evidence is apparent from the context in which the questions were asked. Thrift Mart v. State Farm Fire & Cas. Co., 251 Neb. 448, 558 N.W.2d 531 (1997).

In order to preserve error before the Supreme Court, the party opposing a motion in limine which was granted must make an offer of proof outside the presence of the jury unless the evidence is apparent from the context within which the questions were asked. McCune v. Neitzel, 235 Neb. 754, 457 N.W.2d 803 (1990).

Where, on objection, a ruling excluding evidence is made, an offer of proof is generally a prerequisite to our review on appeal unless it is apparent from the context within which the question was asked that the answer would have been material and competent. Hulse v. Schelkopf, 220 Neb. 617, 371 N.W.2d 673 (1985); State v. Schroder, 218 Neb. 860, 359 N.W.2d 799 (1984).

In an offer of proof, only the substance of excluded testimony must be disclosed. If the substance of the evidence is apparent from the context in which the question is asked, an offer of proof is not necessary. Birkel v. Hassebrook Farm Serv., 219 Neb. 286, 363 N.W.2d 148 (1985).

Error may not be predicated on district court's failure to admit evidence if no offer of proof is made. Morris v. Laaker, 213 Neb. 868, 331 N.W.2d 807 (1983).

Where no offer of proof was made error cannot be predicated on a ruling excluding evidence. Schwartz v. Selvage, 203 Neb. 158, 277 N.W.2d 681 (1979).

Where evidence is excluded, an offer of proof is generally a prerequisite to review on appeal. State v. Fonville, 197 Neb. 220, 248 N.W.2d 27 (1976).

Pursuant to subsection (1)(b) of this section, a party's failure to make an offer of proof or ensure the record reflected the substance of excluded witnesses' testimony prevents appellate review of the trial court's exclusion of the testimony. Zuco v. Tucker, 9 Neb. App. 155, 609 N.W.2d 59 (2000).

2. Timely objection

This section differs from Federal Rule of Evidence 103 in that it requires an objection in the case of all rulings admitting evidence in order for error to be predicated upon such ruling on appeal, even when the court previously considered the admissibility of evidence during in limine proceedings. State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013).

An objection made at trial after the close of the State’s case in chief fails to preserve the question of the admissibility of exhibits which were the subjects of previous motions to suppress. In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).

An untimely renewal of an objection, even though the subject of a previous motion to suppress, will waive the objection. In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).

The defendant failed to preserve for appellate review a challenge to the admission of exhibits reoffered at his second habitual criminal hearing following remand when counsel's only stated ground for the objection was that he was not the counsel of record at the original hearing and was not sure the proper objections were made to the exhibits at the original hearing. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).

Under subsection (1)(a) of this section, when counsel for a party specifically states in the trial court that he has no objection to the introduction of certain documents, he cannot on appeal urge that they were improperly certified or authenticated and, for that reason, not admissible. Jacobson v. Higgins, 243 Neb. 485, 500 N.W.2d 558 (1993).

In a criminal trial, after a pretrial hearing and order overruling a defendant's motion to suppress evidence, the defendant must perform the additional procedural step of objecting at trial to the admission of the evidence which was the subject of the suppression motion in order to preserve the question of admissibility for appeal. State v. Rodgers, 237 Neb. 506, 466 N.W.2d 537 (1991); State v. Mahlin, 236 Neb. 818, 464 N.W.2d 312 (1991); State v. Pointer, 224 Neb. 892, 402 N.W.2d 268 (1987).

Objection was not timely when it was made after the exhibit was received in evidence. Objection to the admission of evidence is not timely unless it is made at the earliest opportunity after the ground for the objection becomes apparent. State v. Rodgers, 237 Neb. 506, 466 N.W.2d 537 (1991).

To preserve a claimed error in the admission of evidence, a party must make a timely objection which specifies the ground of the objection to the offered evidence. State v. Cox, 231 Neb. 495, 437 N.W.2d 134 (1989).

If a party does not make a timely objection to evidence under subsection (1)(a) of this statute, the party waives the right on appeal to assert prejudicial error in the reception of such evidence. State v. Todd, 226 Neb. 906, 416 N.W.2d 13 (1987).

Defendant did not preserve, for appeal, alleged error in trial court's overruling his motion to suppress physical evidence, where defendant did not object at trial to the receipt of the evidence, but stipulated to its introduction. State v. Roggenkamp, 224 Neb. 914, 402 N.W.2d 682 (1987).

3. Substantial rights

In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party. Werner v. County of Platte, 284 Neb. 899, 824 N.W.2d 38 (2012).

In a civil case, to constitute reversible error, admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about such evidence admitted or excluded. Equitable Life v. Starr, 241 Neb. 609, 489 N.W.2d 857 (1992); Huffman v. Huffman, 236 Neb. 101, 459 N.W.2d 215 (1990); Alliance Nat. Bank v. State Surety Co., 223 Neb. 403, 390 N.W.2d 487 (1986).

Under subsection (1) of this section, alleged error in the exclusion of offered testimony is of no avail if the same testimony, or testimony to the same effect, had been, or was afterward, allowed to be given by the same witness. Rose v. City of Lincoln, 234 Neb. 67, 449 N.W.2d 522 (1989).

An error is prejudicial unless it can be said that the error was harmless beyond a reasonable doubt. State v. Lenz, 227 Neb. 692, 419 N.W.2d 670 (1988).

Error may be predicated on a ruling excluding evidence if a substantial right of the party is affected and the substance of the evidence is apparent from the context. Lincoln East Bancshares v. Rierden, 225 Neb. 440, 406 N.W.2d 337 (1987).

Exclusion of the statement of the insurance adjuster affected the plaintiff's substantial right to present reliable evidence on causation. Bump v. Firemen's Ins. Co., 221 Neb. 678, 380 N.W.2d 268 (1986).

With regard to the rule that error may not be predicated upon a ruling excluding evidence unless a substantial right of the party is affected and unless "the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked", it would be an unusual circumstance where an offer of proof would not be required in order to enable the trial court, and the appellate courts, to know what the evidence is which the questioner seeks to elicit. State v. Eldred, 5 Neb. App. 424, 559 N.W.2d 519 (1997).

Under subsection (1)(b) of this section, a substantial right of plaintiff was not affected by the trial court's refusal to admit plaintiff's alleged rebuttal evidence. Stern v. On Time Freight Sys., 1 Neb. App. 302, 493 N.W.2d 348 (1992).

4. Specific objection

Stating “[n]o further objection” is not a valid objection under this section when the grounds for the alleged objection are not apparent from the context. State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013).

The context of an objection does not include the objections made in a pretrial motion when that motion was filed almost 2 months prior to the evidentiary ruling and the connection between the objection and the pretrial motion was not unquestionably apparent. State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013).

The requirement in this section that the specific ground of an objection be apparent is not met by referring to a pretrial motion that contained multiple objections without specifically identifying the grounds for objection at trial. State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013).

Unless an objection to offered evidence is sufficiently specific to enlighten the trial court and enable it to pass upon the sufficiency of such objection and to observe the alleged harmful bearing of the evidence from the standpoint of the objector, no question can be presented therefrom on appeal. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).

The duty rests on defendant, after denial of a motion to suppress, to object at trial to the admission of the evidence and to state the specific grounds of the objection if a specific ground is not apparent from the context in which the objection was made. State v. Farrell, 242 Neb. 877, 497 N.W.2d 17 (1993).

A true objection does not wander among the Nebraska Evidence Rules in the hope of eventually ending its odyssey at the doorstep of a particular rule of evidence; in seeking to exclude evidence, counsel must adhere to a basic and straightforward approach: tell the court the reason why the evidence is inadmissible. State v. Coleman, 239 Neb. 800, 478 N.W.2d 349 (1992).

To preserve a claimed error in the admission of evidence, a party must make a timely objection which specifies the ground of the objection to the offered evidence. State v. Cox, 231 Neb. 495, 437 N.W.2d 134 (1989).

A party is barred from asserting a different ground for his objection to the admission of evidence on appeal than was offered before the trier of fact. Rocek v. Department of Public Institutions, 225 Neb. 247, 404 N.W.2d 414 (1987).

5. Miscellaneous

The Nebraska Supreme Court has excused an attorney’s failure to object in circumstances where the need to object was not reasonably apparent. In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).

While on rulings admitting evidence the focus is on the ground for exclusion urged at trial, on rulings excluding evidence, the focus is on whether the substance of the evidence was made known at trial. As a result, the rule that one may not on appeal assert a ground for excluding improperly admitted evidence that differs from that urged in the objection made to the trial court, State v. Bray, 243 Neb. 886, 503 N.W.2d 221 (1993), does not come into play when dealing with evidence which was improperly excluded. Cockrell v. Garton, 244 Neb. 359, 507 N.W.2d 38 (1993).

An exhibit offered at trial but not received by the trial court is required to be included in the record in order to allow an appellate court— where an alleged error in refusing to receive the exhibit is properly raised in an appeal— to effectively review the court's decision. Dinges v. Dinges, 16 Neb. App. 275, 743 N.W.2d 662 (2008).

27-104. Rule 104. Preliminary questions; questions of admissibility, generally; relevancy conditioned on fact; hearing of jury; testimony by accused; weight and credibility.

(1) Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the judge, subject to the provisions of subsection (2) of this section.

(2) When the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

(3) Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness, if he so requests.

(4) The accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case.

(5) This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

Source:Laws 1975, LB 279, § 4.

Annotations

1. Qualification of witness as expert

2. Miscellaneous

1. Qualification of witness as expert

Per subsection (1) of this section, a trial court's factual finding concerning a determination whether a witness qualifies as an expert under section 27-702 will be upheld on appeal unless clearly erroneous. State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996).

A trial court's ruling regarding a witness' qualification as an expert will be upheld unless such ruling is clearly erroneous. State v. Stahl, 240 Neb. 501, 482 N.W.2d 829 (1992); In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992); State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).

Whether a witness is qualified to testify as an expert under section 27-702 is a preliminary question of admissibility for a trial court under subsection (1) of this section. State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).

Subsection (1) of this section serves as a guidepost under parental termination cases regarding whether a witness is qualified to testify as an expert. In re Interest of Phoebe S. and Rebekah S., 11 Neb. App. 919, 664 N.W.2d 470 (2003).

Under subsection (1) of this section, the trial court's admission of testimony by banker as expert witness regarding security agreement was not an abuse of discretion. Skiles v. Security State Bank, 1 Neb. App. 360, 494 N.W.2d 355 (1992).

2. Miscellaneous

In a criminal case, the Nebraska rules of evidence do not apply to hearings to determine preliminary questions of admissibility, including suppression hearings. State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014).

This section was never intended to treat preliminary questions of admissibility differently than Fed. R. Evid. 104(a). State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014).

Unlike its counterpart in the Federal Rules of Evidence, subsection (1) of this section requires a court to first determine whether evidence is admissible under the hearsay rules before considering whether it is properly authenticated. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

A trial court has broad discretion in determining how to perform its gatekeeper function, and nothing prohibits it from hearing a Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), motion during trial. State v. Aguilar, 268 Neb. 411, 683 N.W.2d 349 (2004).

A hearing on preliminary matters concerning admissibility of evidence shall be conducted when the interests of justice require, or when a defendant is a witness, if the defendant so requests. State v. Olsan, 231 Neb. 214, 436 N.W.2d 128 (1989).

At a hearing to suppress evidence, the court, as the trier of fact, is the sole judge of the credibility of witnesses and the weight to be given to their testimony and other evidence. The Supreme Court will uphold the trial court's finding of fact in a suppression hearing unless those findings are clearly wrong. State v. Vann, 230 Neb. 601, 432 N.W.2d 810 (1988).

Whether the State has established a prima facie case of conspiracy, thereby constituting anything within execution or furtherance of the common purpose as the act of every coconspirator, is a preliminary question for the trial court. State v. Copple, 224 Neb. 672, 401 N.W.2d 141 (1987).

Pursuant to subsection (3) of this section, the voluntariness of a statement is first determined by the trial court as a matter of law out of the presence of the jury. If the court finds the statement to be voluntary and admissible, the question of voluntariness is submitted to the jury which, by appropriate evidence, must be satisfied that the statement is voluntary. State v. Bodtke, 219 Neb. 504, 363 N.W.2d 917 (1985).

27-105. Rule 105. Limited admissibility.

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the judge, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

Source:Laws 1975, LB 279, § 5.

Annotations

Because evidence of other acts submitted for a proper purpose may at the same time lead the jury to infer bad character and employ propensity reasoning, the trial court must, if requested by the defendant, instruct the jury to focus only on the proper purpose of the evidence. State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).

While the giving of a limiting instruction is mandatory when requested, it is within the trial court's discretion whether to give a limiting instruction contemporaneously with the testimony or in the general instructions to the jury. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).

27-106. Rule 106. Remainder of or related writings or recorded statements; action of judge.

(1) When part of an act, declaration, conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other. When a letter is read, all other letters on the same subject between the same parties may be given. When a detached act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood, or to explain the same, may also be given in evidence.

(2) The judge may in his discretion either require the party thus introducing part of a total communication to introduce at that time such other parts as ought in fairness to be considered contemporaneously with it, or may permit another party to do so at that time.

Source:Laws 1975, LB 279, § 6.

Annotations

Under the "rule of completeness" in this section, a party is entitled to admit the entirety of an act, declaration, conversation, or writing when the other party admits a part and when the entirety is necessary to make it fully understood. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

When prior testimony of a witness is introduced out of context and leaves a false impression, additional evidence, even if otherwise inadmissible, may be introduced to qualify and explain the previous testimony. Nickell v. Russell, 260 Neb. 1, 614 N.W.2d 349 (2000).

Because this section is concerned with the danger of admitting a statement out of context, additional evidence is admissible only if it qualifies or explains the previous testimony. Under this section, when defense counsel leaves a false impression, the trial court may allow the use of otherwise inadmissible evidence to clarify or complete an issue opened up by defense counsel. Under this section, the trial court must determine whether the additional evidence which the proponent seeks to admit is relevant to the issues in the case and the trial court need admit only that part of the evidence which qualifies or explains the evidence offered by the opponent. In applying this section, once relevance of the additional evidence has been established, the trial court must address the second half of the test for admissibility, and should do so by asking: (1) Does it explain the admitted evidence? (2) Does it place the admitted evidence in context? (3) Will admitting it avoid misleading the trier of fact? (4) Will admitting it ensure a fair and impartial understanding of all the evidence? State v. Schrein, 244 Neb. 136, 504 N.W.2d 827 (1993).

Under this section the admission of evidence is not a matter of right, but rests with the sound discretion of the court. State v. Coffman, 227 Neb. 149, 416 N.W.2d 243 (1987).

Generally, the rule of completeness is concerned with the danger of admitting a statement out of context. When this danger is not present, it is not an abuse of discretion to fail to require the production of the remainder or, if it cannot be produced, to fail to exclude the evidence. Chirnside v. Lincoln Tel. & Tel. Co., 224 Neb. 784, 401 N.W.2d 489 (1987).

The general rule regarding admissibility of tape recordings is that they are admissible as evidence of such conversations and in corroboration of oral testimony, provided proper foundation is laid. The rule of completeness is concerned with danger of admitting a statement out of context. Where this danger is not present it is not an abuse of discretion to fail to require production of the entire statement. State v. Manchester, 213 Neb. 670, 331 N.W.2d 776 (1983).

27-201. Rule 201. Judicial notice of adjudicative facts; kinds of facts; when discretionary; when mandatory; opportunity to be heard; time of taking notice; instructing jury.

(1) This rule governs only judicial notice of adjudicative facts.

(2) A judicially noticed fact must be one not subject to reasonable dispute in that it is either (a) generally known within the territorial jurisdiction of the trial court or (b) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(3) A judge or court may take judicial notice, whether requested or not.

(4) A judge or court shall take judicial notice if requested by a party and supplied with the necessary information.

(5) A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

(6) Judicial notice may be taken at any stage of the proceeding.

(7) In a civil action or proceeding, the judge shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the judge shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

Source:Laws 1975, LB 279, § 7.

Annotations

1. Adjudicative fact

2. Judicial notice

3. Miscellaneous

1. Adjudicative fact

In determining whether to adjudicate children as to their father, the juvenile court could not take judicial notice of the mother's admission that domestic violence occurred between her and the father in the home, because the admission consisted of adjudicative facts which the father disputed and such facts were not subject to any test by the father at the time of the mother's admission. In re Interest of Lilly S. & Vincent S., 298 Neb. 306, 903 N.W.2d 651 (2017).

Adjudicative facts within the meaning of this section are simply the facts as developed in a particular case, as distinguished from legislative facts, which are established truths, facts, or pronouncements that do not change from case to case but apply universally. Hagelstein v. Swift-Eckrich, 257 Neb. 312, 597 N.W.2d 394 (1999).

A fact is adjudicative if the fact affects the determination of a controverted issue in litigation. State v. Vejvoda, 231 Neb. 668, 438 N.W.2d 461 (1989).

To be judicially noticed, a fact must be uniform and fixed with no doubt as to the fact itself or that it is a matter of common knowledge. Indoor Recreation Enterprises, Inc. v. Douglas, 194 Neb. 715, 235 N.W.2d 398 (1975).

A finding that the population of Grand Island, Nebraska, would certainly be a fact "generally known within the territorial jurisdiction" of the Hall County District Court, and thus, it would be an adjudicative fact subject to judicial notice. State v. Johnson, 31 Neb. App. 207, 979 N.W.2d 123 (2022).

2. Judicial notice

An appellate court may examine its own records and take judicial notice of the proceedings and judgment in a former action involving one of the parties, and it may take judicial notice of a document, including briefs filed in an appeal, in a separate but related action concerning the same subject matter in the same court. Western Ethanol Co. v. Midwest Renewable Energy, 305 Neb. 1, 938 N.W.2d 329 (2020).

While a court may judicially notice its own records under this section, testimony must be transcribed, properly certified, and marked and documents must be marked and identified and each made part of the record so that an appellate court may review the admissibility of each noticed item. In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261 (2017).

A court may judicially notice adjudicative facts, which are not subject to reasonable dispute, at any stage of the proceeding. Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008).

An appellate court may take judicial notice of a document, including briefs filed in an appeal, in a separate but related action concerning the same subject matter in the same court. Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008).

In interwoven and interdependent cases, an appellate court may examine its own records and take judicial notice of the proceedings and judgment in a former action involving one of the parties. Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008).

The formal introduction into evidence of a court's own prior proceedings should be done by individually noticing those elements considered relevant and competent for the issues presented. Strunk v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 821 (2006).

A juvenile court has a right to examine its own records and take judicial notice of its own proceedings and judgment in an interwoven and dependent controversy where the same matters have already been considered and determined. In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003).

When cases are interwoven and interdependent and the controversy involved has already been considered and determined by the court in a former proceeding involving one of the parties now before it, the court has the right to examine its own records and take judicial notice of its own proceedings and judgments in the former action. Appellate courts in this state may take judicial notice of a document, including briefs filed in an appeal, in a separate but related action concerning the same subject matter in the same court. Jessen v. Jessen, 259 Neb. 644, 611 N.W.2d 834 (2000).

A trial court cannot take judicial notice of disputed allegations. In re Interest of N.M. and J.M., 240 Neb. 690, 484 N.W.2d 77 (1992).

A trial court may use appropriate judicial notice in resolving a motion for summary judgment. Gottsch v. Bank of Stapleton, 235 Neb. 816, 458 N.W.2d 443 (1990).

The existence of court records and certain judicial action reflected in a court's records are an appropriate subject for judicial notice. Gottsch v. Bank of Stapleton, 235 Neb. 816, 458 N.W.2d 443 (1990).

An entire trial record cannot be said to fall within the definition of a judicially noted fact as set out in subsection (2) of this section. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).

When a fact is neither generally known within the trial court's territorial jurisdiction nor capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, judicial notice of an adjudicative fact is improper. State v. Vejvoda, 231 Neb. 668, 438 N.W.2d 461 (1989).

In a suit on a promissory note, the trial court may take judicial notice of a security agreement signed by the parties contemporaneously with the note when the agreement had been attached as an exhibit to a petition in a separate subsequent action between the same parties and in the same court. State Security Savings Co. v. Pelster, 207 Neb. 158, 296 N.W.2d 702 (1980).

Defendant's claim that a city prosecutor is without authority to prosecute using wiretap evidence was rejected and court took judicial notice of the status and official positions of public officers in the court's jurisdiction. State v. Kolosseus, 198 Neb. 404, 253 N.W.2d 157 (1977).

When offering evidence from prior hearings in a proceeding to terminate parental rights, papers requested to be noticed must be marked, identified and made a part of the record. Testimony must be transcribed, properly certified, marked, and made a part of the record. In re Interest of Tabitha J., 5 Neb. App. 609, 561 N.W.2d 252 (1997).

3. Miscellaneous

Existence of court records and certain judicial action reflected in a court's record are, in accordance with this section, facts which are capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned. Hagelstein v. Swift-Eckrich, 257 Neb. 312, 597 N.W.2d 394 (1999); State v. Dandridge, 255 Neb. 364, 585 N.W.2d 433 (1998).

The existence of court records and certain judicial action reflected in a court's record are, in accordance with subsection (2)(b) of this section, facts which are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. A court may, therefore, judicially notice existence of its records and the records of another court, but judicial notice of facts reflected in a court's records is subject to the doctrine of collateral estoppel or of res judicata. Dairyland Power Co-op v. State Bd. of Equal. and Assessment, 238 Neb. 696, 472 N.W.2d 363 (1991).

Judicial notice of facts reflected in a court's records is subject to the doctrine of collateral estoppel or of res judicata. Gottsch v. Bank of Stapleton, 235 Neb. 816, 458 N.W.2d 443 (1990).

Judicial notice of an adjudicative fact is a species of evidence, which, if relevant as an ultimate fact or a fact from which an ultimate fact may be inferred, is received without adherence to the Nebraska Evidence Rules otherwise applicable to admissibility of evidence and establishes a fact without formal evidentiary proof. State v. Vejvoda, 231 Neb. 668, 438 N.W.2d 461 (1989).

When neither of the alternative tests prescribed in subsection (2) of this section is satisfied, judicial notice of an adjudicative fact is improper. Everson v. O'Kane, 11 Neb. App. 74, 643 N.W.2d 396 (2002).

27-301. Rule 301. Presumptions in general.

In all cases not otherwise provided for by statute or by these rules a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.

Source:Laws 1975, LB 279, § 8.

Annotations

The concept referred to as a "presumption of undue influence" in will contests is not a true presumption. In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015).

The trial court did not err in refusing a proposed instruction on a presumption of undue influence where both the contestant and the proponent had met their respective burdens of production of evidence. In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015).

In all cases not otherwise provided for by statute or by such rules, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence. This rule applies to the rebuttable presumption that an opinion regarding loss of earning capacity expressed by a vocational rehabilitation counselor appointed or selected pursuant to section 48-162.01(3) is correct. Variano v. Dial Corp., 256 Neb. 318, 589 N.W.2d 845 (1999).

The regulatory presumption contained in Neb. Admin. Code tit. 469, ch. 2, section 2-009.07B4 (1985), that the gratuitous transfer of an applicant's home within two years before moving into a different facility is presumed to be the transfer of a resource to qualify for public assistance, does not come within the ambit of this section of the Nebraska Evidence Rules. Meier v. State, 227 Neb. 376, 417 N.W.2d 771 (1988).

The "presumption of undue influence" is not a presumption within the ambit and meaning of section 27-301. Anderson v. Claussen, 200 Neb. 74, 262 N.W.2d 438 (1978).

A presumption of undue influence in executing deeds is not a presumption contemplated by this section and the burden of proof on the issue of undue influence remains on the contestant. Golgert v. Smidt, 197 Neb. 667, 250 N.W.2d 628 (1977).

In contested will case, the "presumption of undue influence" is not a presumption within the ambit and meaning of this section. McGowan v. McGowan, 197 Neb. 596, 250 N.W.2d 234 (1977).

27-302. Rule 302. Applicability of federal law in civil cases.

In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which federal law supplies the rule of decision is determined in accordance with the federal law.

Source:Laws 1975, LB 279, § 9.

27-303. Rule 303. Presumptions in criminal cases; scope; submission to jury; instruction to jury.

(1) Except as otherwise provided by statute, in criminal cases, presumptions against an accused, recognized at common law or created by statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt, are governed by this rule.

(2) The judge is not authorized to direct the jury to find a presumed fact against the accused. When the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge may submit the question of guilt or of the existence of the presumed fact to the jury, if, but only if, a reasonable juror on the evidence as a whole, including the evidence of the basic facts, could find guilt or the presumed fact beyond a reasonable doubt. When the presumed fact has a lesser effect, its existence may be submitted to the jury if the basic facts are supported by substantial evidence, or are otherwise established, unless the evidence as a whole negatives the existence of the presumed fact.

(3) Whenever the existence of a presumed fact against the accused is submitted to the jury, the judge shall give an instruction that the law declares that the jury may regard the basic facts as sufficient evidence of the presumed fact but does not require it to do so. In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge shall instruct the jury that its existence must, on all the evidence, be proved beyond a reasonable doubt.

Source:Laws 1975, LB 279, § 10.

Annotations

When a trial court instructs a jury on an inference regarding a specific fact or set of facts, the instruction must specifically include a statement explaining to the jury that it may regard the basic facts as sufficient evidence of the inferred fact, but that it is not required to do so; the instruction must also explain that the existence of the inferred facts must, on all the evidence, be proved beyond a reasonable doubt. State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011).

References to "presumptions" in this section necessarily include "inferences." Instructions as to presumptions in criminal cases must conform to the requirements of this section. State v. Parks, 245 Neb. 205, 511 N.W.2d 774 (1994).

Under subsection (3) of this section, whenever the jury in a criminal trial is instructed as to the presumption of possession found in section 28-1212, the jury must also be instructed that it is not required to accept the presumption. State v. Stalder, 231 Neb. 896, 438 N.W.2d 498 (1989).

27-401. Rule 401. Relevant evidence, defined.

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Source:Laws 1975, LB 279, § 11.

Annotations

1. Probative value

2. Relevance generally

3. Relevancy in particular cases

4. Review

5. Miscellaneous

1. Probative value

An airline ticket stub found in the defendant's pocket, which showed that the defendant had a seat on a flight from Los Angeles, California, to Las Vegas, Nevada, and from which it could be inferred that he lied to a state trooper about driving straight back to Michigan from Washington, was probative of the defendant's consciousness of guilt and, thus, relevant in the prosecution for possession of a controlled substance with intent to deliver. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Unlike general denials of guilt, a defendant's exculpatory statements of fact that are proved to be false at trial are probative of the defendant's consciousness of guilt. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Because the exercise of judicial discretion is implicit in determinations of relevancy and admissibility under this section, the trial court's decision will not be reversed absent an abuse of discretion. For evidence to be relevant under this section, all that must be established is a rational, probative connection, however slight, between the offered evidence and a fact of consequence. Snyder v. Contemporary Obstetrics & Gyn., P.C., 258 Neb. 643, 605 N.W.2d 782 (2000).

If an expert's testimony lacks probative value, the testimony is irrelevant and is inadmissible. State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).

Evidence is probative if it tends in any degree to alter the probability of a material fact. State v. Rowland, 234 Neb. 846, 452 N.W.2d 758 (1990); State v. Oliva, 228 Neb. 185, 422 N.W.2d 53 (1988).

This section requires only that the degree of probativeness be something more than nothing. State v. Hankins, 232 Neb. 608, 441 N.W.2d 854 (1989).

While prosecutorial need alone does not mean probative value outweighs prejudice, the more essential the evidence, the greater its probative value, and the less likely that a trial court should order the evidence excluded. State v. Bostwick, 222 Neb. 631, 385 N.W.2d 906 (1986).

2. Relevance generally

Relevance is a relational concept and carries meaning only in context. Evidence may be irrelevant if it is directed at a fact not properly an issue under the substantive law of the case or if the evidence fails to alter the probabilities of the existence or nonexistence of a fact in issue. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

To be admitted at trial, evidence must be relevant, meaning evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

The term "pertinent" as used within the context of section 27-404(1)(b) is synonymous with the term "relevant" as used in this section. State v. Floyd, 277 Neb. 502, 763 N.W.2d 91 (2009).

Evidence is "relevant" if it tends in any degree to alter the probability of a material fact. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Relevancy of evidence requires only that the degree of probativeness be something more than nothing. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

To be relevant, evidence must be rationally related to an issue by a likelihood, not a mere possibility, of proving or disproving an issue to be decided. Brown v. Farmers Mut. Ins. Co., 237 Neb. 855, 468 N.W.2d 105 (1991).

Relevance, as used in the code, embraces concepts the court formerly referred to as competent or material. Jones v. Tranisi, 212 Neb. 843, 326 N.W.2d 190 (1982).

Relevant evidence is evidence having a tendency to make the existence of any fact of consequence in the action more probable or less probable than it would be without the evidence. Herman v. Midland Ag. Service, Inc., 200 Neb. 356, 264 N.W.2d 161 (1978).

3. Relevancy in particular cases

Testimony regarding controlled substances seized from the defendant's home was relevant to corroborate testimony of eyewitness and two jailhouse informants in a murder trial, where the eyewitness testified that she purchased marijuana from the defendant on the night of the incident, the first informant testified that the defendant told him that drugs were found during the search of his house, and the second informant testified as to the defendant's statements about the substances seized from his house. State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020).

To determine whether a statement by a law enforcement official in a recorded interview is relevant for the purpose of providing context to a defendant's statement, a court first considers whether the defendant's statement itself is relevant, whether it makes a material fact more or less probable. If the defendant's statement is itself relevant, then a court must consider whether the law enforcement statement is relevant to provide context to the defendant's statement. To do this, a court considers whether the defendant's statement would be any less probative in the absence of the law enforcement statement. If the law enforcement statement does not make the defendant's statement any more probative, it is not relevant. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

The relevance of DNA evidence depends on whether it tends to include or exclude an individual as the source of a biological sample. Nebraska case law generally requires that DNA testing results be accompanied by statistical evidence or a probability assessment that explains whether the results tend to include or exclude the individual as a potential source. State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).

Unless the State presents the statistical significance of DNA testing results that shows a defendant cannot be excluded as a potential source in a biological sample, the results are irrelevant. They are irrelevant because they do not help the fact finder assess whether the defendant is or is not the source of the sample. And because of the significance that jurors will likely attach to DNA evidence, the value of inconclusive testing results is substantially outweighed by the danger that the evidence will mislead the jurors. State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).

Evidence of a defendant's consciousness of guilt is relevant as a circumstance supporting an inference that the defendant is guilty of the crime charged. When the evidence is sufficient to justify an inference that the defendant acted with consciousness of guilt, the fact finder can consider such evidence even if the conduct could be explained in another way. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

In the absence of competent evidence establishing that merely possessing material dealing with adult heterosexual fellatio somehow leads to engaging in pedophilic homosexual fellatio, evidence of possession of such material is not relevant. Sexually explicit materials shown to a victim are relevant, if there is testimony that some of the materials in the exhibit were used in an attempt to arouse. In the absence of competent evidence establishing that possession of an advertisement for male homosexual videotapes somehow leads to engaging in pedophilia, the materials are not relevant to whether defendant committed the crime of first degree sexual assault. State v. Lee, 247 Neb. 83, 525 N.W.2d 179 (1994).

A photograph is admissible in evidence if the photograph's subject matter or contents are depicted truly and accurately at a time pertinent to the inquiry and the photograph has probative value as relevant evidence. State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992).

In order to admit a coconspirator's act as evidence against a defendant-coconspirator being tried for a crime other than the conspiracy itself, the trial court must first determine whether the State has proved a prima facie case that (1) a conspiracy existed, (2) the defendant and the witness were members of the conspiracy, and (3) the witness' act was done during and in furtherance of the conspiracy. State v. Copple, 224 Neb. 672, 401 N.W.2d 141 (1987).

Evidence of prior acts was relevant to the charge of trespassing, because it tended to show the defendant had notice he was not welcome to return. State v. Babajamia, 223 Neb. 804, 394 N.W.2d 289 (1986).

Witness' statement held relevant to show defendant's conduct, demeanor, statements, attitude, and relation toward the crime. State v. Martin, 198 Neb. 811, 255 N.W.2d 844 (1977).

Evidence of risk-of-procedure or risk-of-surgery discussions with the patient is generally irrelevant and unfairly prejudicial where the plaintiff alleges only negligence, and not lack of informed consent. Hillyer v. Midwest Gastrointestinal Assocs., 24 Neb. App. 75, 883 N.W.2d 404 (2016).

4. Review

The exercise of judicial discretion is implicit in determining the relevance of evidence, and a trial court's decision regarding relevance will not be reversed absent an abuse of discretion. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Because the exercise of judicial discretion is implicit in determinations of relevancy and admissibility under this section and section 27-403, the trial court's decision will not be reversed absent an abuse of discretion. Snyder v. Case and EMCASCO Ins. Co., 259 Neb. 621, 611 N.W.2d 409 (2000); Seeber v. Howlette, 255 Neb. 561, 586 N.W.2d 445 (1998); State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997).

It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts, and the trial court's decision will not be reversed absent an abuse of that discretion. State v. Carter, 246 Neb. 953, 524 N.W.2d 763 (1994).

The exercise of judicial discretion is implicit in determinations of relevancy under this section and prejudice under section 27-403, and a trial court's decision under these evidentiary rules will not be reversed absent an abuse of discretion. State v. Schmidt, 16 Neb. App. 741, 750 N.W.2d 390 (2008); State v. Kuhl, 16 Neb. App. 127, 741 N.W.2d 701 (2007).

Because the exercise of judicial discretion is implicit in determinations of relevancy and admissibility under this section, the trial court's decision will not be reversed absent an abuse of discretion. Wagner v. Union Pacific RR. Co., 11 Neb. App. 1, 642 N.W.2d 821 (2002).

5. Miscellaneous

In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was the proximate cause of the plaintiff's alleged injuries. Karel v. Nebraska Health Sys., 274 Neb. 175, 738 N.W.2d 831 (2007).

Exercise of judicial discretion is implicit in determinations of relevancy and admissibility. Gerhold Concrete Co. v. St. Paul Fire & Marine Ins., 269 Neb. 692, 695 N.W.2d 665 (2005).

When the testimony sought to be impeached was cumulative, it was not error for the court to refuse to admit testimony on the reputation for truthfulness of one of four witnesses who testified to the same facts. Ocander v. B-K Corporation, 206 Neb. 287, 292 N.W.2d 567 (1980).

Admission of irrelevant evidence is harmless error unless, when with other evidence properly adduced, it affects substantial rights of the adverse party. State v. Rathburn, 195 Neb. 485, 239 N.W.2d 253 (1976).

27-402. Rule 402. Relevant evidence admissible; exceptions; irrelevant evidence inadmissible.

All relevant evidence is admissible except as otherwise provided by the Constitution of the United States or the State of Nebraska, by Act of Congress or of the Legislature of the State of Nebraska, by these rules, or by other rules adopted by the Supreme Court of Nebraska which are not in conflict with laws governing such matters. Evidence which is not relevant is not admissible.

Source:Laws 1975, LB 279, § 12.

Annotations

1. Admissibility in particular cases

2. Miscellaneous

1. Admissibility in particular cases

The relevance of DNA evidence depends on whether it tends to include or exclude an individual as the source of a biological sample. Nebraska case law generally requires that DNA testing results be accompanied by statistical evidence or a probability assessment that explains whether the results tend to include or exclude the individual as a potential source. State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).

Unless the State presents the statistical significance of DNA testing results that shows a defendant cannot be excluded as a potential source in a biological sample, the results are irrelevant. They are irrelevant because they do not help the fact finder assess whether the defendant is or is not the source of the sample. And because of the significance that jurors will likely attach to DNA evidence, the value of inconclusive testing results is substantially outweighed by the danger that the evidence will mislead the jurors. State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).

Evidence of a prior accident was not admissible when the plaintiff failed to show how the prior accident was substantially similar to the accident at issue. Holden v. Wal-Mart Stores, Inc., 259 Neb. 78, 608 N.W.2d 187 (2000).

The injection of evidence into a trial that one party's losses may be covered by insurance may substantially outweigh any probative value of such evidence when the injection occurs merely to indicate the employment of a witness and when the injection of insurance could have been prevented by merely substituting for the injection of insurance a stipulation that the witness is an agent of the insured. Stumpf ex rel. Selzer Nintendo of America, Inc., 257 Neb. 920, 601 N.W.2d 735 (1999).

In an eminent domain action, an expert's use of the wrong measure of damages in formulating just compensation would not assist the jury either in understanding the evidence or in determining a fact in issue and, therefore, is not relevant. Lantis v. City of Omaha, 237 Neb. 670, 467 N.W.2d 649 (1991).

Where a defendant has detailed a plan or scheme to commit a crime and ultimately carries out that plan or scheme, evidence concerning the same is admissible to show the defendant's plan and intent to commit the alleged crime. State v. Plymate, 216 Neb. 722, 345 N.W.2d 327 (1984).

Evidence of risk-of-procedure or risk-of-surgery discussions with the patient is generally irrelevant and unfairly prejudicial where the plaintiff alleges only negligence, and not lack of informed consent. Hillyer v. Midwest Gastrointestinal Assocs., 24 Neb. App. 75, 883 N.W.2d 404 (2016).

2. Miscellaneous

Judicial discretion is a factor involved in admissibility of evidence under this section and section 27-403. State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998).

Rule 402 of the Nebraska Evidence Rules permits the admission of relevant evidence only. State v. Robertson, 219 Neb. 782, 366 N.W.2d 429 (1985).

An expert witness retained by one party may be compelled or will be allowed to testify to a matter of opinion upon request of the opposing party. IAFF Local 831 v. City of No. Platte, 215 Neb. 89, 337 N.W.2d 716 (1983).

Under this section, all relevant evidence is admissible unless there is some specific constitutional or statutory reason to exclude such evidence. Furstenfeld v. Pepin, 23 Neb. App. 155, 869 N.W.2d 353 (2015).

27-403. Rule 403. Exclusion of relevant evidence; reasons.

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Source:Laws 1975, LB 279, § 13.

Annotations

1. Unfair prejudice, generally

2. Unfair prejudice, particular cases

3. Discretion of trial court

4. Photographs of victims

5. Miscellaneous

1. Unfair prejudice, generally

In the context of this section, unfair prejudice means an undue tendency to suggest a decision based on an improper basis. Unfair prejudice speaks to the capacity of some concededly relevant evidence to lure the fact finder into declaring guilt on a ground different from proof specific to the offense charged, commonly on an emotional basis. State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020).

Under this section, even evidence that is relevant is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

Most, if not all, evidence offered by a party is calculated to be prejudicial to the opposing party; only evidence tending to suggest a decision on an improper basis is unfairly prejudicial. State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).

Under this section, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).

The fact that evidence is prejudicial is not enough to require exclusion under this section, because most, if not all, of the evidence a party offers is calculated to be prejudicial to the opposing party; it is only the evidence which has a tendency to suggest a decision on an improper basis that is unfairly prejudicial under this section. State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009); State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).

Under this section, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, but only evidence tending to suggest a decision on an improper basis is unfairly prejudicial. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).

It is only the evidence that has a tendency to suggest a decision on an improper basis that is unfairly prejudicial under this section. State v. Long, 264 Neb. 85, 645 N.W.2d 553 (2002).

In the context of this section, "unfair prejudice" means an undue tendency to suggest a decision based on an improper basis. State v. Canbaz, 259 Neb. 583, 611 N.W.2d 395 (2000); Seeber v. Howlette, 255 Neb. 561, 568 N.W.2d 445 (1998); Brown v. Farmers Mut. Ins. Co., 237 Neb. 855, 468 N.W.2d 105 (1991); Lincoln Grain v. Coopers & Lybrand, 216 Neb. 433, 345 N.W.2d 300 (1984).

It is only the evidence which has a tendency to suggest a decision on an improper basis that is unfairly prejudicial under this section. Although evidence may be relevant, this section provides that it may be excluded if the evidence is more prejudicial than probative. Evidence admissible under section 27-404(2) may be excluded under this section if its probative value is substantially outweighed by other considerations. State v. Carter, 246 Neb. 953, 524 N.W.2d 763 (1994).

While most, if not all, evidence offered by a party is calculated to be prejudicial to the opposing party, only evidence tending to suggest a decision on an improper basis is "unfairly prejudicial" and a concern under this section. State v. Perrigo, 244 Neb. 990, 510 N.W.2d 304 (1994); State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992); State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).

Most, if not all, items which one party to an action offers in evidence are calculated to be prejudicial to the opposing party; therefore, it is only unfair prejudice with which this section is concerned. In the context of this section, such prejudice means a tendency to suggest a decision on an improper basis. State v. Yager, 236 Neb. 481, 461 N.W.2d 741 (1990).

Generally, the State may choose its evidence: The prosecutor's choice will generally survive an analysis pursuant to this section when a defendant seeks to force the substitution of an admission for evidence creating a coherent narrative of his thoughts and actions in perpetrating the offense for which he is being tried. State v. McDaniel, 17 Neb. App. 725, 771 N.W.2d 173 (2009).

Only evidence which has a tendency to suggest a decision on an improper basis is unfairly prejudicial under this section. State v. Dreimanis, 8 Neb. App. 362, 593 N.W.2d 750 (1999).

2. Unfair prejudice, particular cases

While the fact that a defendant was acquitted of sexual assault charges in a prior prosecution does not affect the threshold admissibility of the evidence under section 27-414, it is relevant to the undue prejudice analysis conducted under that section and under this section. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).

The defendant's statements about family abuse do not bear a significant risk of unfair prejudice. State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018).

The defendant's statements in which he referenced "gang-banging" in his past and not believing in God carried a risk of unfair prejudice, but the risk was not significant given the isolated and brief nature of the statements in the context of the 2-hour interview. State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018).

In a will contest, the trial court did not abuse its discretion in receiving into evidence a video showing the execution of an earlier will; the video was neither unfairly prejudicial nor cumulative. In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015).

Unless the State presents the statistical significance of DNA testing results that shows a defendant cannot be excluded as a potential source in a biological sample, the results are irrelevant. They are irrelevant because they do not help the fact finder assess whether the defendant is or is not the source of the sample. And because of the significance that jurors will likely attach to DNA evidence, the value of inconclusive testing results is substantially outweighed by the danger that the evidence will mislead the jurors. State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).

Coercive police activity is a necessary predicate to a court’s finding that a confession is not voluntary under the Due Process Clause of the 14th Amendment. But a statement allegedly obtained solely by private citizens through coercion or duress can be challenged as inadmissible because the danger of prejudice outweighs any probative value. State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).

A criminal defendant to a driveby shooting failed to show that the admission of photographs showing him and others with guns was unfairly prejudicial under this section. State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013).

The probative value of prior drug sales to show identity was not substantially outweighed by their prejudicial value, and the defendant was not unfairly prejudiced when the similarities between the prior acts and the charged crime were overwhelming and the jury was instructed on the limited use of the evidence to prove identification. State v. Payne-McCoy, 284 Neb. 302, 818 N.W.2d 608 (2012).

The mere mention of the word "polygraph," when the jury is informed that no such test was given, is not, by itself, sufficiently misleading or confusing that otherwise relevant evidence must be excluded. State v. Walker, 242 Neb. 99, 493 N.W.2d 329 (1992).

Trial court erred in admitting evidence of defendant's previous conviction for similar offense in trial for first degree sexual assault, requiring judgment to be reversed and cause remanded for new trial. State v. Welch, 241 Neb. 699, 490 N.W.2d 216 (1992).

Although it appears that the results of the DNA profile test are generally accepted in the relevant scientific communities, the probative value of population genetics probability must also be considered, and the trial judge must determine if the potentially prejudicial effect upon the jury exceeds the probative value of the evidence. State v. Houser, 241 Neb. 525, 490 N.W.2d 168 (1992).

Section 27-404 is subject to the overriding protections of this section. Trial court in first degree murder case did not err in receiving testimony about a prior robbery in which the defendant was involved because it established a motive and also because its probative value outweighed the danger of unfair prejudice. State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).

Any relevance to witness's testimony concerning status of her husband's lawsuit and compromise settlement with plaintiff in current suit was outweighed by the danger of unfair prejudice, confusion, or misleading the jury. London v. Stewart, 221 Neb. 265, 376 N.W.2d 553 (1985).

On question of witness's credibility, refusal of trial court to permit evidence as to whether or not he had beaten his niece was not abuse of discretion. State v. Fonville, 197 Neb. 220, 248 N.W.2d 27 (1976).

In an incest case, the court did not abuse its discretion in allowing evidence of sexual activity occurring between the defendant and his daughter before they moved to Nebraska and evidence that the defendant could not be excluded as the father of his daughter's child. State v. Aguilar-Moreno, 17 Neb. App. 623, 769 N.W.2d 784 (2009).

Even if statements made by the declarant while sleeping were relevant, their prejudicial nature outweighed their probative value. In re Interest of Jamie P., 12 Neb. App. 261, 670 N.W.2d 814 (2003).

3. Discretion of trial court

An appellate court reviews for an abuse of discretion a trial court's evidentiary rulings on the admissibility of a defendant's other crimes or bad acts under subsection (2) of this section or under the inextricably intertwined exception to the rule. State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).

Only rarely, and in extraordinarily compelling circumstances, will an appellate court, from the vista of a cold appellate record, reverse a trial court's on-the-spot judgment concerning the relative weighing of probative value and unfair effect to determine whether relevant evidence should be excluded. State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).

Exercise of judicial discretion is implicit in determinations of relevancy and admissibility. Gerhold Concrete Co. v. St. Paul Fire & Marine Ins., 269 Neb. 692, 695 N.W.2d 665 (2005).

Because the exercise of judicial discretion is implicit in determinations of relevancy and admissibility under section 27-401 and this section, the trial court's decision will not be reversed absent an abuse of discretion. Snyder v. Case and EMCASCO Ins. Co., 259 Neb. 621, 611 N.W.2d 409 (2000); Seeber v. Howlette, 255 Neb. 561, 586 N.W.2d 445 (1998); State v. Schmidt, 16 Neb. App. 741, 750 N.W.2d 390 (2008); State v. Kuhl, 16 Neb. App. 127, 741 N.W.2d 701 (2007).

It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under this section and subsection (2) of section 27-404. State v. McManus, 257 Neb. 1, 594 N.W.2d 623 (1999).

Judicial discretion is a factor involved in admissibility of evidence under this section and section 27-402. State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998).

The trial judge has broad discretion in determining the admissibility of evidence under this section, because he or she is in the best position to assess the impact and effect of evidence based upon what he or she perceives from the live proceedings of a trial, while an appellate court can only receive a cold record. State v. Dixon, 240 Neb. 454, 482 N.W.2d 573 (1992).

It is the duty of a trial court to expedite the trial as much as is possible without infringing upon the rights of the parties to a complete and orderly examination of all the facts and circumstances connected with the case. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).

A trial court is justified in taking an active role in enforcing this section in summary proceedings such as for protection orders. Zuco v. Tucker, 9 Neb. App. 155, 609 N.W.2d 59 (2000).

4. Photographs of victims

Gruesome crimes produce gruesome evidence, but the State may generally choose its evidence to present a coherent picture of the facts of the crimes charged. State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019).

An appellate court reviews the court’s admission of photographs of a victim’s body for abuse of discretion. State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).

If the State lays proper foundation, photographs that illustrate or make clear a controverted issue in a homicide case are admissible, even if gruesome. State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).

The admission of photographs of a gruesome nature rests largely with the discretion of the trial court, which must determine their relevancy and weigh their probative value against their prejudicial effect. State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).

The admission of photographs of a gruesome nature rests largely within the discretion of the trial court, which must determine their relevancy and weigh their probative value against their prejudicial effect. In a homicide prosecution, a court may receive photographs of a victim into evidence for the purpose of identification, to show the condition of the body or the nature and extent of wounds and injuries to it, and to establish malice or intent. State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012).

The gruesome nature of photographs alone will not keep them from the trier of fact under this statute, so long as the probative value of the photographs is not outweighed by the prejudicial effect. State v. Hankins, 232 Neb. 608, 441 N.W.2d 854 (1989).

The admission of photographs of a gruesome nature rests largely within the sound discretion of the trial court, which must determine their relevancy and weigh their probative value against their possible prejudicial effect. Photographs of a homicide victim may be received upon proper foundation for purposes of identification, to show the condition of the body, the nature and extent of the wounds or injuries, and to establish malice or intent. State v. Rowe, 210 Neb. 419, 315 N.W.2d 250 (1982).

5. Miscellaneous

Under this section and sections 27-701 and 27-702, a witness may not give an opinion as to a defendant's guilt or how the case should be decided, but, rather, must leave the conclusions to be drawn by the trier of fact, because such opinions are not helpful. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

A court should exclude an expert's opinion when it gives rise to conflicting inferences of equal probability, so the choice between them is a matter of conjecture. An expert opinion which is equivocal and is based upon such words as "could," "may," or "possibly" lacks the certainty required to sustain the burden of proof of causation for which the opinion has been offered. State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).

An expert does not have to couch his or her opinion in the magic words of "reasonable certainty," but it must be sufficiently definite and relevant to provide a basis for the fact finder's determination of a material fact. State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).

The relevance of DNA evidence depends on whether it tends to include or exclude an individual as the source of a biological sample. Nebraska case law generally requires that DNA testing results be accompanied by statistical evidence or a probability assessment that explains whether the results tend to include or exclude the individual as a potential source. State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).

A trial court's evaluation of the admissibility of expert opinion testimony is essentially a four-step process. The court must first determine whether the witness is qualified to testify as an expert. It must examine whether the witness is qualified as an expert by his or her knowledge, skill, experience, training, and education. If it is necessary for the court to conduct an analysis under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), then the court must determine whether the reasoning or methodology underlying the expert testimony is scientifically valid and reliable. To aid the court in its evaluation, the judge may consider several factors, including, but not limited to, whether the reasoning or methodology has been tested and has general acceptance within the relevant scientific community. Once the reasoning and methodology has been found to be reliable, the court must determine whether the methodology can properly be applied to the facts in issue. In making this determination, the court may examine the evidence to determine whether the methodology was properly applied and whether the protocols were followed to ensure that the tests were performed properly. Finally, the court determines whether the expert evidence and the opinions related thereto are more probative than prejudicial, as required under this section. State v. Tolliver, 268 Neb. 920, 689 N.W.2d 567 (2004).

For purposes of applying this section, probative value is a relative concept which involves a measurement of the degree to which the evidence persuades the trier of fact that the particular fact exists and the distance of the particular fact from the issues of the case. Seeber v. Howlette, 255 Neb. 561, 586 N.W.2d 445 (1998); State v. Williams, 247 Neb. 878, 530 N.W.2d 904 (1995); State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987); Wagner v. Union Pacific RR. Co., 11 Neb. App. 1, 642 N.W.2d 821 (2002).

If evidence of a prior conviction is relevant to establish elements of another crime, and if the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, the State may prove a prior conviction in any permissible manner. State v. Perrigo, 244 Neb. 990, 510 N.W.2d 304 (1994).

In order to preserve an objection to the admission of evidence, an objection must be made at the time the evidence is offered. State v. Blair, 227 Neb. 742, 419 N.W.2d 868 (1988).

While prosecutorial need alone does not mean probative value outweighs prejudice, the more essential the evidence, the greater its probative value, and the less likely that a trial court should order the evidence excluded. State v. Bostwick, 222 Neb. 631, 385 N.W.2d 906 (1986).

When the testimony sought to be impeached was cumulative, it was not error for the court to refuse to admit testimony on the reputation for truthfulness of one of four witnesses who testified to the same facts. Ocander v. B-K Corporation, 206 Neb. 287, 292 N.W.2d 567 (1980).

Where the need for impeachment is small or nonexistent and the danger that the prior inconsistent statement will be considered substantively is great, the statement should be excluded. State v. Price, 202 Neb. 308, 275 N.W.2d 82 (1979).

Relevant evidence is to be excluded only if there is danger of unfair prejudice, confusion, misleading the jury, undue delay, waste of time, or needless accumulation of evidence. Herman v. Midland Ag. Service, Inc., 200 Neb. 356, 264 N.W.2d 161 (1978).

Where injured victim of defendant's assault with a gun was defendant's wife, she was competent to testify where the jury had prior knowledge of her condition. State v. Martin, 198 Neb. 811, 255 N.W.2d 844 (1977).

Admission of irrelevant evidence is harmless error unless, when with other evidence properly adduced, it affects substantial rights of the adverse party. State v. Rathburn, 195 Neb. 485, 239 N.W.2d 253 (1976).

27-404. Rule 404. Character evidence; not admissible to prove conduct; exceptions; evidence of other crimes, wrongs, or acts; standard of proof; sexual assault; provisions applicable.

(1) Evidence of a person's character or a trait of his or her character is not admissible for the purpose of proving that he or she acted in conformity therewith on a particular occasion, except:

(a) Evidence of a pertinent trait of his or her character offered by an accused, or by the prosecution to rebut the same;

(b) Evidence of a pertinent trait of character of the victim of the crime offered by an accused or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor. In a sexual assault case, reputation, opinion, or other evidence of past sexual behavior of the victim is governed by section 27-412; or

(c) Evidence of the character of a witness as provided in sections 27-607 to 27-609.

(2) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(3) When such evidence is admissible pursuant to this section, in criminal cases evidence of other crimes, wrongs, or acts of the accused may be offered in evidence by the prosecution if the prosecution proves to the court by clear and convincing evidence that the accused committed the crime, wrong, or act. Such proof shall first be made outside the presence of any jury.

(4) Regarding the admissibility in a civil or criminal action of evidence of a person's commission of another offense or offenses of sexual assault under sections 28-316.01 and 28-319 to 28-322.05, see sections 27-413 to 27-415.

Source:Laws 1975, LB 279, § 14; Laws 1984, LB 79, § 2; Laws 1993, LB 598, § 1; Laws 2009, LB97, § 7; Laws 2019, LB519, § 2; Laws 2020, LB881, § 2.

Annotations

1. Character evidence

2. Prior bad act evidence

3. Probative value determination

4. Effect of remoteness

5. Miscellaneous

1. Character evidence

This section codifies the common-law tradition prohibiting resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt. State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).

Under subsection (1) of this section, proof of a person's character is barred only when in turn, character is used in order to show action in conformity therewith. State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).

Although subsection (1)(a) of this section allows the accused to offer evidence of a pertinent trait of his or her character and allows the prosecution to rebut that evidence, section 27-405 limits the manner in which the evidence may be admitted. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).

Subsections (a) and (b) of this section are mutually exclusive. When an accused couples a claim of self-defense with evidence that the victim was the first aggressor, the accused does not interject the issue of the accused's character. State v. Jackson, 258 Neb. 24, 601 N.W.2d 741 (1999).

Under subsection (1)(a) of this section, evidence of the character trait of honesty is admissible in a prosecution for bribery and conspiracy to commit bribery. State v. Vogel, 247 Neb. 209, 526 N.W.2d 80 (1995).

Where a defendant claims that the act of killing a victim was the result of a violent and overriding reaction to a homosexual approach by the victim, evidence of the victim's prior similar homosexual activities may be admissible under certain circumstances as corroborative of the defendant's claim that there was a lack of deliberation or premeditated malice on his or her part necessary to convict of first degree murder. State v. Escamilla, 245 Neb. 13, 511 N.W.2d 58 (1994).

Evidence of a murder victim's homosexuality may be admissible as corroborative of a defendant's claim of self-defense from a homosexual assault, provided such evidence as tendered is probative of that defense. State v. Lowe, 244 Neb. 173, 505 N.W.2d 662 (1993).

The trial court did not err in admitting evidence implying a romantic relationship between defendant and the female host of a party at which defendant broke the jaw of another man to rebut defendant's claimed motive of self-defense. State v. Stueben, 240 Neb. 170, 481 N.W.2d 178 (1992).

Subsection (1)(b) of this section allows the accused in a criminal case to offer evidence of a pertinent trait of character of the victim of the crime for the purpose of proving the victim acted in conformity therewith on a particular occasion. State v. Lewchuk, 4 Neb. App. 165, 539 N.W.2d 847 (1995).

2. Prior bad act evidence

Evidence is not an "other act" under subsection (2) of this section where it only tends to logically prove an element of the crime charged and does not give rise to a propensity inference. State v. Wheeler, 314 Neb. 282, 989 N.W.2d 728 (2023).

In a criminal case, subsection (1) of this section operates as a broad exclusionary rule of relevant evidence that speaks to a criminal defendant's propensity to have committed the crime or crimes charged. The purpose of subsection (1) of this section is that propensity evidence, despite its relevance, creates the risk of a decision by the trier of fact on an improper basis. State v. Wheeler, 314 Neb. 282, 989 N.W.2d 728 (2023).

In a criminal case, subsection (2) of this section operates as an inclusionary rule of evidence. It provides that evidence of other crimes, wrongs, or acts may be admissible for purposes other than propensity. Proof of another distinct substantive act is admissible under subsection (2) of this section when there is some legal connection between the two upon which it can be said that one tends to establish the other or some essential fact in issue. State v. Wheeler, 314 Neb. 282, 989 N.W.2d 728 (2023).

This section's restriction on evidence of other crimes, wrongs, or acts did not apply when evidence of the defendant's pandering of another victim was inextricably intertwined with the evidence of the charged crimes. State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).

Subsection (2) of this section does not apply to evidence of a defendant's other crimes or bad acts if the evidence is inextricably intertwined with the charged crime. Inextricably intertwined evidence includes evidence that forms part of the factual setting of the crime, or evidence that is so blended or connected to the charged crime that proof of the charged crime will necessarily require proof of the other crimes or bad acts, or if the other crimes or bad acts are necessary for the prosecution to present a coherent picture of the charged crime. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).

Upon objection to evidence offered under subsection (2) of this section, the proponent must state on the record the specific purpose or purposes for which the evidence is being offered, and the trial court must similarly state the purpose or purposes for which it is receiving the evidence. A trial court must then consider whether the evidence is independently relevant, which means that its relevance does not depend upon its tendency to show propensity. Additionally, evidence offered under subsection (2) of this section is subject to the overriding protection of section 27-403, which requires a trial court to consider whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Finally, when requested, the trial court must instruct the jury on the specific purpose or purposes for which it is admitting the extrinsic acts evidence under subsection (2) of this section, to focus the jurors' attention on that purpose and ensure that it does not consider it for an improper purpose. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).

Evidence of a defendant's threat against an individual that he shot 2 days later was inextricably intertwined with the shooting. State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).

The State cannot introduce other acts that are relevant only through the inference that the defendant is by propensity a probable perpetrator of the crime. State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).

While this section may prevent the admission of other acts evidence for propensity purposes as a protection of the presumption of innocence, it does not follow that the State violates due process by adducing testimony that could result in the revelation of other acts if the defense chooses to pursue certain lines of questioning on cross-examination. State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).

In prosecution for intentional child abuse resulting in death, evidence of the child's prior injuries while in the defendant's care was admissible, because those injuries were inextricably intertwined with the fatal injuries. State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).

Evidence that in the weeks before a shooting, the defendant in a murder case threatened the shooting victims several times was inextricably intertwined with the shooting and not subject to this section. State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).

The evidence of a charge of sexual assault of a child and of charges of child abuse was not inextricably intertwined. Had the charge of first degree sexual assault of a child been tried separately from the four counts of child abuse, subsection (2) of this section would have prevented evidence of child abuse from being presented in a trial for sexual assault of a child and would have prevented evidence of sexual assault of a child from being presented in a trial for child abuse. Defense counsel was ineffective for failing to oppose joinder of the charges. State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013).

When the defendant was tried for first degree sexual assault of a child and child abuse in the same trial, counsel was ineffective for failing to request limiting instructions based on subsection (2) of this section limiting evidence of sexual assault to the sexual assault charge and evidence of child abuse to the child abuse charges. State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013).

Photographs of the defendant and others with guns taken near the time of a driveby shooting were intrinsic evidence corroborating testimony that the defendant had access to and was in possession of a .22-caliber rifle and were not inadmissible under subsection (2) of this section. State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013).

Evidence of previous drug sales in which the buyer reached the defendant at the same telephone number, the defendant always used the same "street code" to arrange crack cocaine sales, the defendant directed the buyer to a location, and the defendant personally delivered crack cocaine was admissible to show identity under subsection (2) of this section. The prior acts were overwhelmingly similar to the crime charged, bore the same signature, and were independently relevant, and because a person other than the defendant delivered the crack cocaine, the identity of the perpetrator was at issue. The prior sales were inadmissible to show motive and intent; they were only relevant to motive on the logic the defendant had sold cocaine before and therefore did so again, and intent was not at issue. State v. Payne-McCoy, 284 Neb. 302, 818 N.W.2d 608 (2012).

Under subsection (3) of this section, an appellate court will affirm a trial court's ruling that the defendant committed an uncharged extrinsic crime or bad act if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found with a firm conviction the essential elements of the uncharged crime. State v. Kofoed, 283 Neb. 767, 817 N.W.2d 225 (2012).

Evidence of prior crimes was not so similar, unusual, or distinctive so as to support its independent relevance on the issue of identity and was inadmissible. State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).

Pursuant to subsection (2) of this section, where there are an overwhelming number of significant similarities between the other crime and the charged offense or offenses, the evidence of the other crime may be admitted, and any dissimilarities merely go to the weight of the evidence. State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).

Subsection (2) of this section prohibits the admissibility of relevant evidence for the purpose of proving the character of a person in order to show that he or she acted in conformity therewith; or, stated another way, the rule prohibits the admission of other bad acts evidence for the purpose of demonstrating a person's propensity to act in a certain manner. State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011).

Bad acts that form the factual setting of the crime in issue or that form an integral part of the crime charged are not subject to this section. State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010).

Evidence of a plaintiff's prior bad acts may be admitted, pursuant to subsection (2) of this section, where it rebuts the plaintiff's evidence of damages. Sturzenegger v. Father Flanagan's Boys' Home, 276 Neb. 327, 754 N.W.2d 406 (2008).

Evidence of prior bad acts which is relevant for any purpose other than to show the actor's propensity is admissible under subsection (2) of this section. Evidence that is offered for a proper purpose is often referred to as having "special" or "independent relevance," which means its relevance does not depend on its tendency to show propensity. Sturzenegger v. Father Flanagan's Boys' Home, 276 Neb. 327, 754 N.W.2d 406 (2008).

Bad acts that form the factual setting of the crime in issue or that form an integral part of the crime charged are not covered under subsection (2) of this section. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006); State v. Wisinski, 268 Neb. 778, 688 N.W.2d 586 (2004).

Where evidence of other crimes is so blended or connected with the ones on trial so that proof of one incidentally involves the others, or explains the circumstances, or tends logically to prove any element of the crime charged, it is admissible as an integral part of the immediate context of the crime charged. When the other crimes evidence is so integrated, it is not extrinsic and therefore not governed by this section. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).

This section specifically prohibits the admission of other bad acts evidence for the purpose of demonstrating a person's propensity to act in a certain manner. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).

Pursuant to subsection (2) of this section, evidence admitted did not constitute Neb. Evid. R. 404 evidence of prior bad acts. The evidence introduced was part of the factual setting of the crime. State v. Aguilar, 264 Neb. 899, 652 N.W.2d 894 (2002).

Where uncharged misconduct is not evidence of prior bad acts, this section does not apply. State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002).

The defendant's statements to neighbors and coworkers prior to the murder that he wanted to hurt or kill the victim do not constitute prior bad act evidence. State v. Canbaz, 259 Neb. 583, 611 N.W.2d 395 (2000).

Pursuant to subsection (2) of this section, evidence of other bad acts which is relevant for any purpose other than to show the actor's propensity to commit the act is admissible. Subsection (2) of this section divides evidence of other bad acts into two categories according to the basis of relevance of the acts: (1) Relevant only to show propensity, which is not admissible, and (2) otherwise relevant (nonpropensity), which is admissible. If evidence of other bad acts is admitted into evidence, the court, if requested, must give a limiting instruction. On appeal, an analysis of subsection (2) of this section considers whether the (1) evidence was relevant for some purpose other than to prove the character of a person to show that he or she acted in conformity therewith, (2) probative value of the evidence is substantially outweighed by its potential for unfair prejudice, and (3) trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted. State v. McManus, 257 Neb. 1, 594 N.W.2d 623 (1999).

Pursuant to subsection (2) of this section, this is a rule of inclusion rather than exclusion. Pursuant to subsection (2) of this section, the evidence of other crimes need not be identical to the act charged to be admissible. State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997).

The mere fact a criminal defendant has been charged with previous crimes is not legal evidence of other crimes, wrongs, or acts, let alone clear and convincing evidence that the accused committed the alleged crimes, wrongs, or acts. State v. McBride, 250 Neb. 636, 550 N.W.2d 659 (1996).

Subsection (2) of this section is an inclusionary rule permitting the use of relevant, specific acts for all purposes except to prove character of a person in order to show that such person acted in conformity with character. State v. Perrigo, 244 Neb. 990, 510 N.W.2d 304 (1994); State v. Kenny, 224 Neb. 638, 399 N.W.2d 821 (1987); State v. Robb, 224 Neb. 14, 395 N.W.2d 534 (1986); State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985); State v. Craig, 219 Neb. 70, 361 N.W.2d 206 (1985).

Subsection (2) of this section is an inclusionary rule permitting the use of relevant other crimes, wrongs, or acts for all purposes except to prove character of a person in order to show that such a person acted in conformity with that character; it may be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in determining the accused's guilt of the offense in question. State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993); State v. Kern, 224 Neb. 177, 397 N.W.2d 23 (1986).

Under subsection (2) of this section, the acts of a third person are irrelevant and inadmissible for proof of motive or intent of an actor. The "other crimes, wrongs, or acts" must be those of the accused. State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993).

In prosecution for incest, testimony of both the victim and her brother was relevant and material to prove opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake, all legitimate purposes for admitting testimony of prior bad acts. State v. Martin, 242 Neb. 116, 493 N.W.2d 191 (1992).

Subsection (2) of this section is an inclusionary rule permitting the use of uncharged misconduct evidence if the evidence is relevant for any purpose other than to show a defendant's propensity or disposition to commit the crime charged. State v. Hernandez, 242 Neb. 78, 493 N.W.2d 181 (1992).

It is firmly established that subsection (2) of this section is a rule of inclusion which permits the use of relevant other crimes, wrongs, or acts for all purposes except to prove the character of a person in order to show that such person acted in conformity with that character. State v. Styskal, 242 Neb. 26, 495 N.W.2d 313 (1992); State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).

Subsection (2) of this section permits evidence of other crimes, wrongs, or acts if such is relevant for a purpose other than to show a defendant's propensity or disposition to commit the crime charged. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992); State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990); State v. Methe, 228 Neb. 468, 422 N.W.2d 803 (1988).

Evidence of other crimes is not admissible unless there is sufficient evidence that the crimes were actually committed and that defendant committed them to warrant submission to a jury if the other crimes had been charged. State v. Timmerman, 240 Neb. 74, 480 N.W.2d 411 (1992).

Under subsection (2) of this section, prior transactions involving defendant's acceptance of stolen property in exchange for drugs are relevant and admissible to establish defendant's knowledge that the property which is the subject of the prosecution is, in fact, stolen. State v. Messersmith, 238 Neb. 924, 473 N.W.2d 83 (1991).

In prosecution for first degree sexual assault of defendant's infant granddaughter, evidence of similar sexual conduct with stepdaughter 27 years earlier under extremely similar circumstances held admissible to show absence of mistake or accident. State v. Stephens, 237 Neb. 551, 466 N.W.2d 781 (1991).

Subsection (2) of this section allows the admission of evidence of other crimes, wrongs, or acts for the purpose of establishing identity or a particular method of operation. State v. Evans, 235 Neb. 575, 456 N.W.2d 739 (1990).

Under subsection (2) of this section, evidence of other criminal acts which involve or explain the circumstances of the crime charged, or are integral parts of an overall occurrence, may be admissible. It is competent for the prosecution to put in evidence all relevant facts and circumstances which tend to establish any of the constituent elements of the crime with which the accused is charged, even though such facts and circumstances may prove or tend to prove that the defendant committed other crimes. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).

It is well established that subsection (2) of this section is an inclusionary rule permitting the use of relevant evidence of other crimes, wrongs, or acts for purposes other than to prove the character of a person in order to show that such person acted in conformity with that character. Thus, this section permits evidence of other crimes, wrongs, or acts if such is relevant for a purpose other than to show defendant's propensity or disposition to commit the crime charged. State v. Donhauser, 231 Neb. 114, 435 N.W.2d 186 (1989); State v. Stewart, 219 Neb. 347, 363 N.W.2d 368 (1985).

Evidence of prior bad acts is an attempt to show character contrary to subsection (1) of this section. State v. Lenz, 227 Neb. 692, 419 N.W.2d 670 (1988).

Subsection (2) of this section is an inclusionary rule of evidence permitting the use of relevant other crimes, wrongs, or acts for the purposes enumerated. Evidence of prior uncharged sexual assault was admissible to show location, scheme, plan, and motive. State v. Nesbitt, 226 Neb. 32, 409 N.W.2d 314 (1987).

This section is an inclusionary rule which permits the use of relevant other crimes, wrongs, or acts if such is relevant for any purpose other than to show defendant's propensity or disposition to commit the crime charged. Certain tape-recorded statements were admissible to show why witness failed to promptly report her accusations against the defendant. State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).

Under this section, a defendant's attempted intimidation or intimidation of a State's informant or witness is relevant evidence concerning the defendant's conscious guilt that a crime has been committed, and is a circumstance from which an inference may be drawn that the defendant is guilty of the crime charged. State v. Clancy, 224 Neb. 492, 398 N.W.2d 710 (1987).

The admissibility of evidence of other crimes lies largely within the discretion of the trial court. State v. Baker, 218 Neb. 207, 352 N.W.2d 894 (1984).

Evidence that the defendant was previously involved in a marijuana harvesting scheme is not admissible to prove a later, unconnected, possession charge. State v. Coca, 216 Neb. 76, 341 N.W.2d 606 (1983).

Past patterns of behavior are admissible in cases involving termination of parental rights, when relevant to motive, opportunity, intent, preparation, plan, knowledge, and absence of mistake or accident. In re Interest of Hollenbeck, 212 Neb. 253, 322 N.W.2d 635 (1982).

In trial on charges of assault where knife was used in assault, evidence that defendant had earlier the same day struck someone with his fists was not admissible under this section since it did not tend to prove intent, motive, opportunity, preparation, plan, knowledge, identity, or absence of mistake or accident as to assault with knife. State v. Stewart, 209 Neb. 719, 310 N.W.2d 706 (1981).

Evidence of prior shotgun assault of intended victim's family clearly admissible under this section. State v. Harper, 208 Neb. 568, 304 N.W.2d 663 (1981).

Evidence of prior criminal acts was admissible to explain the circumstances of the crime charged, to explain the failure of the victim to make a prompt complaint, and to show a continuous pattern of sexual conduct by the defendant toward both his sons. State v. Hitt, 207 Neb. 746, 301 N.W.2d 96 (1981).

Evidence of prior similar offenses properly received in a nonjury child abuse action where an element of the crime involved motive and criminal intent. State v. Morosin, 200 Neb. 62, 262 N.W.2d 194 (1978).

Evidence of bank account shortages admissible to prove intent in forgery conviction. State v. Metzger, 199 Neb. 186, 256 N.W.2d 691 (1977).

Insufficient funds checks evidencing crimes other than one defendant charged with were admissible to show guilty knowledge and course of conduct. State v. Costello, 199 Neb. 43, 256 N.W.2d 97 (1977).

Evidence of defendant's prior conviction held admissible to confirm identity, motive, and method of operation. State v. Moore, 197 Neb. 294, 249 N.W.2d 200 (1976).

Following a rule 404 hearing, witnesses were allowed to testify about threatening statements made by the defendant to witnesses as the defendant was being escorted from the courtroom to the courthouse elevator; evidence of other crimes, wrongs, or acts may be admissible to demonstrate a defendant's consciousness of guilt. State v. Johnson, 31 Neb. App. 207, 979 N.W.2d 123 (2022).

The defendant's statement that the abuse between her and her husband was "50/50" was not evidence of prior bad acts in violation of this section, but, rather, was inextricably intertwined with the charged crime and admissible to present a coherent picture of the assault. State v. Cavitte, 28 Neb. App. 601, 945 N.W.2d 228 (2020).

Subsection (2) of this section does not apply to evidence of a defendant's other crimes or bad acts if the evidence is inextricably intertwined with the charged crime. State v. Kelly, 20 Neb. App. 871, 835 N.W.2d 79 (2013).

Although it is proper to admit evidence of other wrongs which constitutes intrinsic evidence intertwined with the charged offense, where the challenged evidence does not include any showing linking the defendant to the other wrongs evidence, it is not intrinsic evidence intertwined with the charged offense. State v. Thomas, 19 Neb. App. 36, 798 N.W.2d 620 (2011).

Evidence of other bad acts falls into two categories under subsection (2) of this section, according to the basis of the relevance of the acts: (1) evidence which is relevant only to show propensity, which is not admissible, and (2) otherwise relevant (nonpropensity) evidence, which is admissible. State v. Sutton, 16 Neb. App. 185, 741 N.W.2d 713 (2007).

Evidence of other crimes which is relevant for any purpose other than to show the actor's propensity is admissible under subsection (2) of this section. State v. Sutton, 16 Neb. App. 185, 741 N.W.2d 713 (2007).

Subsection (2) of this section prohibits the admission of evidence of other bad acts for the purpose of demonstrating a person's propensity to act in a certain manner. State v. Sutton, 16 Neb. App. 185, 741 N.W.2d 713 (2007).

The admissibility of evidence under subsection (2) of this section must be determined upon the facts of each case and is within the discretion of the trial court. State v. Sutton, 16 Neb. App. 185, 741 N.W.2d 713 (2007).

Pursuant to subsection (2) of this section, an absolute identity in every detail is not required for evidence of other bad acts to be admissible under this section for the proper purpose of establishing identity, and the question is whether the acts are so similar, unusual, and distinctive that it could reasonably be found that they bear the same signature. State v. Bockman, 11 Neb. App. 273, 648 N.W.2d 786 (2002).

Prior conduct which is inextricably intertwined with the charged crime is not considered extrinsic evidence of other crimes or bad acts and is not rendered inadmissable by this section. State v. Powers, 10 Neb. App. 256, 634 N.W.2d 1 (2001).

Pursuant to subsection (2) of this section, proof of a signature of a crime from other bad acts is a proper purpose. State v. Gray, 8 Neb. App. 973, 606 N.W.2d 478 (2000).

In a defendant's trial for sexual assault of a minor, evidence of the defendant's physical violence against the family was admissible under subsection (2) of this section because the evidence explained why the victim failed to report the defendant's abuse. State v. Egger, 8 Neb. App. 740, 601 N.W.2d 785 (1999).

Pursuant to subsection (2) of this section, identity means a particular method of operation or little more than the logical conclusion which flows from other crimes evidence advanced in proof of plan, design, scheme, or modus operandi. State v. Wade, 7 Neb. App. 169, 581 N.W.2d 906 (1998).

The Nebraska Evidence Rules apply at a hearing conducted pursuant to subsection (3) of this section, and a criminal defendant is entitled to a full evidentiary hearing on the admissibility of prior bad acts evidence under subsection (3) of this section. State v. Wilson, 5 Neb. App. 125, 556 N.W.2d 643 (1996).

Pursuant to subsection (2) of this section, an accused may offer evidence of prior crimes, wrongs, or acts of a third party for a purpose other than proving the propensity of the person to commit the crime charged. State v. Gardner, 1 Neb. App. 450, 498 N.W.2d 605 (1993).

Under subsection (2) of this section, evidence regarding defendant's past drug dealings with informant was admissible to show knowledge and intent of defendant to commit the crime charged. State v. Benitez, 1 Neb. App. 310, 493 N.W.2d 353 (1992).

3. Probative value determination

Pursuant to subsection (2) of this section, the probative value of evidence of a prior shooting by the defendant was substantially outweighed by its prejudice when the shooting was an isolated act occurring 29 days before the present alleged crime and a jury acquitted the defendant of committing the shooting. State v. Kirksey, 254 Neb. 162, 575 N.W.2d 377 (1998).

Pursuant to subsection (2) of this section, evidence of other crimes, wrongs, or acts may be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in determining the accused's guilt of the offense in question. State v. Buechler, 253 Neb. 727, 572 N.W.2d 65 (1998).

If evidence of a prior conviction is relevant to establish elements of another crime, and if the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, the State may prove a prior conviction in any permissible manner. Subsection (2) of this section is subject to the overriding protection of section 27-403. State v. Perrigo, 244 Neb. 990, 510 N.W.2d 304 (1994).

In reviewing the admission of prior acts, the reviewing court should consider the relevance of the evidence, the purpose for its introduction, and the probative value balanced against its potential for unfair prejudice. State v. Farrell, 242 Neb. 877, 497 N.W.2d 17 (1993).

Where a police officer testified to an informant's drug purchase from a third party who went to defendant's home prior to completion of the transaction, the potential for unfair prejudice outweighs its probative value. However, the erroneously admitted evidence was cumulative and harmless beyond a reasonable doubt where there was other properly admitted evidence showing intent to deliver cocaine in accord with the circumstantial evidence of past delivery. State v. Hernandez, 242 Neb. 78, 493 N.W.2d 181 (1992).

Evidence admissible under subsection (2) of this section is limited by section 27-403, which provides for the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of, among other things, unfair prejudice. For purposes of subsection (2) of this section, it is sufficient that the evidence be of similar involvement reasonably related to the charged conduct and be presented in a manner in which prejudice does not outweigh its probative value. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).

Under subsection (2) of this section, evidence of prior acts is admissible if relevant unless it is unfairly prejudicial in the sense that it tends to make the conviction of the defendant more probable for an incorrect reason. State v. Christian, 237 Neb. 294, 465 N.W.2d 756 (1991).

In reviewing the actions of a trial court in admitting evidence of other crimes under subsection (2) of this section to determine if there was unfair prejudice in the admission of the evidence, an appellate court considers (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted. State v. Yager, 236 Neb. 481, 461 N.W.2d 741 (1990); State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990); State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989); State v. Doremus, 2 Neb. App. 784, 514 N.W.2d 649 (1994).

Under subsection (2) of this section, evidence of other crimes, wrongs, or acts may be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in determining the accused's guilt of the offense in question. State v. Ruyle, 234 Neb. 760, 452 N.W.2d 734 (1990).

This section is subject to the overriding protections of section 27-403. Trial court in first degree murder case did not err in receiving testimony about a prior robbery in which the defendant was involved because it established a motive and also because its probative value outweighed the danger of unfair prejudice. State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).

Subsection (2) of this section is subject to the overriding protection of section 27-403 which states that evidence of other acts must be excluded if, among other things, the probative value of the evidence of other acts is substantially outweighed by the danger of unfair prejudice to the defendant. State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985).

4. Effect of remoteness

Pursuant to subsection (2) of this section, while remoteness in time may weaken the value of prior bad acts evidence, such remoteness does not, in and of itself, necessarily justify exclusion of that evidence. State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).

The question of remoteness in time for the purposes of subsection (2) of this section is a matter within the discretion of the trial court. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992); State v. Keithley, 218 Neb. 707, 358 N.W.2d 761 (1984).

The question of whether evidence of other conduct otherwise admissible under the provisions of subsection (2) of this section is too remote in time is largely within the discretion of the trial court. While remoteness in time may weaken the value of the evidence, such remoteness does not, in and of itself, necessarily justify exclusion of the evidence. Remoteness, or the temporal span between a prior crime, wrong, or other act offered as evidence, goes to the weight to be given to such evidence and does not render the evidence of the other crime, wrong, or act irrelevant and inadmissible. State v. Yager, 236 Neb. 481, 461 N.W.2d 741 (1990); State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (1989); State v. Rincker, 228 Neb. 522, 423 N.W.2d 434 (1988).

The admissibility of evidence concerning other conduct under subsection (2) of this section must be determined upon the facts of each case; no exact limitation of time can be fixed as to when other conduct tending to prove intent to commit the offense charged is remote. State v. Rincker, 228 Neb. 522, 423 N.W.2d 434 (1988).

5. Miscellaneous

Evidence that one of the victims was previously shot—allegedly by the defendant's cousin—established that there was a long-standing feud between that victim and the defendant, and, thus, was inextricably intertwined with the present murders. State v. Mabior, 314 Neb. 932, 994 N.W.2d 65 (2023).

Evidence that one of the victims was previously shot—allegedly by the defendant's cousin—was not evidence under this section because it was inextricably intertwined with the present murders. State v. Mabior, 314 Neb. 932, 994 N.W.2d 65 (2023).

Subsection (3) of this section has no application where the evidence of the prior shooting is not evidence under this section. State v. Mabior, 314 Neb. 932, 994 N.W.2d 65 (2023).

Under this section, other types of character or bad acts evidence are presumed to be inadmissible, and where admissible for one or more of the particular purposes as set forth by this section, the evidence may be considered only for those purposes. Thus, while this section is a rule of exclusion, section 27-414 is a rule of admissibility. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).

Intrinsic evidence, or evidence necessary to tell a complete story of the crime, is admissible to provide the context in which the crime occurred. State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).

Evidence can be properly admitted to explain the victim's failure to make a prompt complaint. State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010).

The term "pertinent" as used within the context of subsection (1)(b) of this section is synonymous with the term "relevant" as used in section 27-401. State v. Floyd, 277 Neb. 502, 763 N.W.2d 91 (2009).

Whether subsection (2) of this section or section 27-608(2) applies to the admissibility of other-acts evidence depends on the purpose for which the proponent introduced the other-acts evidence. Subsection (2) of this section applies when extrinsic evidence is offered as relevant to a material issue in the case. Section 27-608(2) applies when extrinsic evidence is offered to impeach a witness, to show the character of the witness for untruthfulness⁚ in other words, where the only theory of relevance is impeachment by prior misconduct. So, because section 27-608(2) affects only evidence of prior instances of conduct when properly relevant solely for the purpose of attacking or supporting a witness' credibility, it in no way affects the admission of evidence of such prior acts for other purposes under subsection (2) of this section. Sturzenegger v. Father Flanagan's Boys' Home, 276 Neb. 327, 754 N.W.2d 406 (2008).

In a prosecution for child abuse, evidence of previous abuse of a child is admissible to show absence of accident only if the state shows by a preponderance of the evidence that there is a connection between the defendant and the child's injuries. State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007).

In a murder trial, evidence of the defendant's returning from a city and of a vehicle the defendant drove being burned in a field in that city was intrinsic to the crimes for which he was charged. Accordingly, the trial court did not err in admitting this evidence without first conducting a hearing pursuant to this section. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).

Intent was not a fact of consequence and therefore cannot provide a basis for independent relevance of the other crimes evidence. Opportunity was not a fact of consequence and therefore cannot provide a basis for independent relevance of the other crimes evidence. No logical reason was articulated as to why motive was a fact of consequence, and therefore, motive cannot provide a basis for independent relevance of the other crimes evidence. While identity was a fact of consequence, evidence of identity lacked probative value and thus could not be admitted for a proper purpose. State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).

Pursuant to subsection (2) of this section, the admissibility of other crimes evidence must be determined upon the facts of each case and is within the discretion of the trial court. Clear and convincing evidence that the accused committed the crime is presented when there is sufficient evidence to warrant submission to a trier of fact if the accused had been charged with the crimes. Subsection (2) of this section considers whether the (1) evidence was relevant for some purpose other than to prove the character of a person to show that he or she acted in conformity therewith, (2) probative value of the evidence is substantially outweighed by its potential for unfair prejudice, and (3) trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted. Henceforth, the proponent of evidence offered pursuant to subsection (2) of this section shall, upon objection to its admissibility, be required to state on the record the specific purpose or purposes for which the evidence is being offered and that the trial court shall similarly state the purpose or purposes for which such evidence is received. A limiting instruction given upon receipt of prior bad acts evidence shall state the purpose or purposes for which such evidence was received. State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).

Pursuant to subsection (3) of this section, because it was the victim's report, not the occurrence or nonoccurrence of the claimed events which provided the motive, a separate rule 404(3) hearing had no application. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).

Evidence admissible under subsection (2) of this section may be excluded under section 27-403 if its probative value is substantially outweighed by other considerations. This section is a rule of inclusion, rather than exclusion, and permits the use of relevant bad acts for all purposes except to prove the character of a person to show that the person acted in conformity with that character. The admission of evidence of other acts under subsection (2) of this section is reviewed by considering whether the evidence was relevant, whether the evidence had a purpose, whether the probative value of the evidence outweighed its potential for unfair prejudice, and whether the trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted. State v. Carter, 246 Neb. 953, 524 N.W.2d 763 (1994).

The purposes set forth in subsection (2) of this section are illustrative only and not intended to be exhaustive or mutually exclusive. State v. Perrigo, 244 Neb. 990, 510 N.W.2d 304 (1994).

In prosecution for possession of cocaine and methamphetamine, evidence as to whether defendant had ever used cocaine is improper. State v. Friend, 230 Neb. 765, 433 N.W.2d 512 (1988).

In order to preserve an objection to the admission of evidence under subsection (2) of this section, an objection must be made at the time the evidence is offered. State v. Blair, 227 Neb. 742, 419 N.W.2d 868 (1988).

Evidence of conviction of a crime is, in some respects, more limited than under former section, but is not restricted to felonies as such. State v. Lang, 197 Neb. 47, 246 N.W.2d 608 (1976).

An appellate court's analysis under subsection (2) of this section considers (1) whether the evidence was relevant for some purpose other than to prove the character of a person to show that he or she acted in conformity therewith, (2) whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice, and (3) whether the trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted. State v. Sutton, 16 Neb. App. 185, 741 N.W.2d 713 (2007).

A trial court is under no obligation to make express findings in rulings pursuant to this section. State v. Dreimanis, 8 Neb. App. 362, 593 N.W.2d 750 (1999).

This section does not prohibit the mention of prior convictions. State v. Dreimanis, 8 Neb. App. 362, 593 N.W.2d 750 (1999).

To determine if there was unfair prejudice in admitting evidence of other crimes under this section, an appellate court considers (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted. State v. Dreimanis, 8 Neb. App. 362, 593 N.W.2d 750 (1999).

An appellate court reviews the admission of other acts under subsection (2) of this section by considering (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted. State v. Wade, 7 Neb. App. 169, 581 N.W.2d 906 (1998).

Subsection (2) of this section is a rule of inclusion, rather than exclusion, and it permits the use of evidence of prior activity except to prove the character of a person in order to show that the person acted in conformity with that character. State v. Wade, 7 Neb. App. 169, 581 N.W.2d 906 (1998).

27-405. Rule 405. Method of proving character; reputation or opinion; specific instances of conduct.

(1) In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(2) In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.

Source:Laws 1975, LB 279, § 15.

Annotations

Although subsection (1)(a) of section 27-404 allows the accused to offer evidence of a pertinent trait of his or her character and allows the prosecution to rebut that evidence, this section limits the manner in which the evidence may be admitted. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).

This section limits the defendant's evidence of character to evidence of opinion or reputation. But even when a defendant improperly offers specific instances of his or her good conduct, the prosecution may not counter by offering evidence of specific instances of bad conduct. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).

Under this section, the prosecution's rebuttal witnesses may testify only to reputation or opinion. The witnesses may not be used to prove that specific instances of conduct occurred. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).

When character is not an element of the crime or a defense, this section dictates that the only inquiry that can be made into specific instances of conduct is through cross-examination of the defendant's character witnesses, and during cross-examination, the prosecutor is limited to an inquiry whether the witness has heard of a given fact, misdeed, or criminal conviction. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).

The language of this section changes the prior case law rule, that evidence of a homicide victim's propensity for violence ordinarily is admissible only in the form of reputation testimony, so that when character is an essential element of a charge, claim, or defense, it will also be admissible. State v. Sims, 213 Neb. 708, 331 N.W.2d 255 (1983).

Defendant's character witness was properly cross-examined on specific instances of defendant's prior convictions. State v. Eynon, 197 Neb. 734, 250 N.W.2d 658 (1977).

Under subsection (2) of this section, the accused in a criminal case may offer evidence of specific instances of conduct of the victim of the crime for the purpose of proving the victim was the first aggressor to substantiate the accused's self-defense claim. State v. Lewchuk, 4 Neb. App. 165, 539 N.W.2d 847 (1995).

The type of character evidence admissible under this section and section 27-608 does not include the opinion of an expert witness regarding the truthfulness of another witness based upon purported scientific studies. State v. Maggard, 1 Neb. App. 529, 502 N.W.2d 493 (1993).

27-406. Rule 406. Habit; routine practice; admissibility; method of proof.

(1) Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

(2) Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.

Source:Laws 1975, LB 279, § 16.

Annotations

Evidence was insufficient to show a routine or habit within the meaning of this section, because a single incident did not establish a routine, and the relevance of the evidence depended on the claim that the actor engaged in a deliberate volitional act, not a habit. State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).

Admissibility of habit evidence depends on the trial judge's evaluation of the particular facts and is thus reviewed for an abuse of discretion. Borley Storage & Transfer Co. v. Whitted, 271 Neb. 84, 710 N.W.2d 71 (2006).

The precise contours of how frequently and consistently a behavior must occur to rise to the level of habit cannot be easily defined or formulated, and as with other areas of relevancy, admissibility depends on the judge's evaluation of the particular facts of the case. The exercise of judicial discretion is implicit in determinations of relevancy and admissibility under this section, and as a result, the trial court's decision will not be reversed absent an abuse of discretion. Under this section, the trial court determines whether the predicate evidence necessary to prove conduct by habit has been introduced. Habit may be shown by opinion or specific instances of conduct. It is within the trial court's discretion to determine if there is sufficient foundation for a witness to give his or her opinion about an issue in question. Habit evidence is relevant because such evidence makes it more probable that the person acted in a manner consistent with that habit. Hoffart v. Hodge, 9 Neb. App. 161, 609 N.W.2d 397 (2000).

27-407. Rule 407. Subsequent remedial measures.

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. Negligence or culpable conduct, as used in this rule, shall include, but not be limited to, the manufacture or sale of a defective product.

Source:Laws 1975, LB 279, § 17; Laws 1978, LB 665, § 7.

Annotations

The determination of feasibility includes a consideration of whether an action would have been effective and practical. McDermott v. Platte Cty. Ag. Socy., 245 Neb. 698, 515 N.W.2d 121 (1994).

This section does not require exclusion of evidence concerning subsequent repairs, alterations, or precautions, when such evidence is offered for the purpose of impeachment affecting credibility of the witness impeached. Rahmig v. Mosley Machinery Co., 226 Neb. 423, 412 N.W.2d 56 (1987).

Evidence of subsequent acts is admissible on the issue of feasibility of precautionary measures, if controverted. In this case, testimony to the effect that erection of snow fences would not have been a feasible precautionary measure could properly be rebutted by evidence that, subsequent to the incident giving rise to this action, snow fences were erected. Kurz v. Dinklage Feed Yard, Inc., 205 Neb. 125, 286 N.W.2d 257 (1979).

"Feasibility" as used in this section includes effectiveness and practicality as well as possibility. Kurz v. Dinklage Feed Yard, Inc., 205 Neb. 125, 286 N.W.2d 257 (1979).

27-408. Rule 408. Compromise and offers to compromise.

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Source:Laws 1975, LB 279, § 18.

Annotations

1. Evidence inadmissible

2. Evidence admissible

3. Miscellaneous

1. Evidence inadmissible

An admission against interest concerning an element of the disputed claim is not an exception to the general inadmissibility of conduct or statements made in settlement negotiations. McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 251 (2021).

Conduct or statements made in settlement negotiations are not admissible for another purpose to impeach a prior inconsistent statement. McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 251 (2021).

If a statement violates the Nebraska Evidence Rules governing compromise and offers to compromise, a trial court does not have discretion to admit the statement. McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 251 (2021).

A notice of acquisition sent to a landowner prior to beginning condemnation proceedings constitutes a privileged communication during statutorily required negotiations and, thus, may be excluded pursuant to this section. In re Application of SID No. 384 of Douglas County, 259 Neb. 351, 609 N.W.2d 679 (2000).

Although evidence of insurance is admissible for some other purposes under section 27-411, where evidence is directed solely at showing the amount for which a party settled with its insurer and where there is no showing that they had represented the value of the damaged and discarded products to be less than was claimed in the suit or for which it obtained judgment, the evidence is an inadmissible compromise or settlement pursuant to this section. Delicious Foods Co. v. Millard Warehouse, 244 Neb. 449, 507 N.W.2d 631 (1993).

Agreement on less than all issues of a dispute that is being negotiated will normally be treated as an offer to compromise under this section. Pribil v. Koinzan, 11 Neb. App. 199, 647 N.W.2d 110 (2002).

2. Evidence admissible

Documents are not immunized from admissibility merely by being strategically presented in the course of compromise negotiations, and a fact presented during compromise negotiations is not immunized if it was obtained from sources independent of the compromise negotiations. McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 251 (2021).

3. Miscellaneous

A court's determination of preliminary questions of fact conditioning the applicability of the exclusionary rule set forth in this section are reviewed for clear error. McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 251 (2021).

The exclusion set forth in this section does not distinguish between offers to settle and admissions of fact made during settlement negotiations. McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 251 (2021).

Whether a particular writing, conduct, or statement is made in or a product of compromise negotiations is largely a question of fact. McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 251 (2021).

Any relevance to witness' testimony concerning status of her husband's lawsuit and compromise settlement with plaintiff in current suit was outweighed by the danger of unfair prejudice, confusion, or misleading the jury. London v. Stewart, 221 Neb. 265, 376 N.W.2d 553 (1985).

27-409. Rule 409. Payment of medical and similar expenses.

Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

Source:Laws 1975, LB 279, § 19.

27-410. Rule 410. Guilty plea; nolo contendere; offered plea; withdrawn plea; inadmissible; exceptions.

Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal action, case, or proceeding against the person who made the plea or offer. This rule shall not apply to the introduction of voluntary and reliable statements made in court on the record in connection with any of the foregoing pleas or offers when offered for impeachment purposes or in a subsequent prosecution of the declarant for perjury or false statement.

Source:Laws 1975, LB 279, § 20.

Annotations

The evidentiary rule provided in this section, that a withdrawn guilty plea is not admissible in any civil or criminal action or proceeding against the person who made it, does not apply to the sentencing stage of a criminal proceeding. State v. Klappal, 218 Neb. 374, 355 N.W.2d 221 (1984).

Under some circumstances a plea of guilty entered by the defendant in a criminal action may be used against him as an admission in a subsequent action involving the same subject matter; a violation of a statute or ordinance enacted in the interest of public safety, while not negligence per se, is evidence of negligence. Schaefer v. McCreary, 216 Neb. 739, 345 N.W.2d 821 (1984).

The fact of conviction resulting from a nolo contendere plea may be used in a subsequent proceeding. In re Interest of Verle O., 13 Neb. App. 256, 691 N.W.2d 177 (2005).

27-411. Rule 411. Liability insurance.

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

Source:Laws 1975, LB 279, § 21.

Annotations

The remote potential for bias of a witness on the basis of sharing the same insurance carrier as the defendant must be balanced against the prejudicial effect of its admission. Reimer v. Surgical Servs. of the Great Plains, P.C., 258 Neb. 671, 605 N.W.2d 777 (2000).

Although evidence of insurance is admissible for some other purposes under this section, where evidence is directed solely at showing the amount for which a party settled with its insurer and where there is no showing that they had represented the value of the damaged and discarded products to be less than was claimed in the suit or for which it obtained judgment, the evidence is an inadmissible compromise or settlement pursuant to section 27-408. Delicious Foods Co. v. Millard Warehouse, 244 Neb. 449, 507 N.W.2d 631 (1993).

Where the existence of insurance coverage is not relevant to any issue in the case, evidence of such coverage is inadmissible. Kresha v. Kresha, 216 Neb. 377, 344 N.W.2d 906 (1984).

Inadvertent mention of plaintiff's lack of health insurance is not prejudicial error requiring mistrial where it is not shown that jury inferred that plaintiff was incapable of paying expenses. Where indemnification of defendants does not logically follow from the fact that plaintiff lacked health insurance, it cannot be said that defendants were prejudiced. Bailey v. AMISUB, 1 Neb. App. 56, 489 N.W.2d 323 (1992).

27-412. Sex offense cases; relevance of alleged victim's past sexual behavior or alleged sexual predisposition; evidence of victim's consent; when not admissible.

(1) The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subsections (2) and (3) of this section:

(a) Evidence offered to prove that any victim engaged in other sexual behavior; and

(b) Evidence offered to prove any victim's sexual predisposition.

(2)(a) In a criminal case, the following evidence is admissible, if otherwise admissible under the Nebraska Evidence Rules:

(i) Evidence of specific instances of sexual behavior by the victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(ii) Evidence of specific instances of sexual behavior of the victim with respect to the accused offered by the accused to prove consent of the victim if it is first established to the court that such behavior is similar to the behavior involved in the case and tends to establish a pattern of behavior of the victim relevant to the issue of consent; and

(iii) Evidence, the exclusion of which would violate the constitutional rights of the accused.

(b) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any victim is admissible if it is otherwise admissible under the Nebraska Evidence Rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of a victim's reputation is admissible only if it has been placed in controversy by the victim.

(3)(a) A party intending to offer evidence under subsection (2) of this section shall:

(i) File a written motion at least fifteen days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause, requires a different time for filing or permits filing during trial; and

(ii) Serve the motion on all parties and notify the victim or, when appropriate, the victim's guardian or representative.

(b) Before admitting evidence under this section, the court shall conduct a hearing in camera outside the presence of any jury.

(4) Evidence of the victim's consent is not admissible in any civil proceeding involving alleged:

(a) Sexual penetration when the actor is nineteen years of age or older and the victim is less than sixteen years of age; or

(b) Sexual contact when the actor is nineteen years of age or older and the victim is less than fifteen years of age.

Source:Laws 2009, LB97, § 3; Laws 2019, LB478, § 1.

Annotations

In a sexual assault prosecution, the trial court did not abuse its discretion in prohibiting the defendant from asking the complaining witness about an allegation that she made against a doctor regarding inappropriate touching during a prenatal examination. State v. Ali, 312 Neb. 975, 981 N.W.2d 821 (2022).

A trial court did not abuse its discretion in determining that the defendant could not question the victim about previous sexual encounters because they were not similar enough to be relevant. The victim's encounter with the defendant occurred when the defendant was 18 years old and the victim was 10 years old and involved sexual penetration; the victim's previous encounters involved sexual touching between other similarly aged children. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).

A false accusation of rape where no sexual activity is involved is itself not "sexual behavior" involving the victim, and such statements fall outside of the rape shield law. State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).

Before defense counsel launches into cross-examination about false allegations of sexual assault, a defendant must establish, outside of the presence of the jury, by a greater weight of the evidence, that (1) the accusation or accusations were in fact made, (2) the accusation or accusations were in fact false, and (3) the evidence is more probative than prejudicial. State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).

In limited circumstances, a defendant's right to confrontation can require the admission of evidence that would be inadmissible under the rape shield statute. State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).

Subject to several exceptions, subsection (1) of this section bars evidence offered to prove that any victim engaged in other sexual behavior and evidence offered to prove any victim's sexual predisposition in civil or criminal proceedings involving alleged sexual misconduct. State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).

The term "sexual behavior" under this section refers to specific instances of conduct and the term "sexual predisposition" refers to more generalized evidence in the form of opinion or reputation testimony about the complaining witness's character. But questions about the existence of a relationship between the complaining witness and a third party does not, by itself, implicate either type of evidence prohibited by this section. Evidence is not barred by this section simply because it might indirectly cause the finder of fact to make an inference concerning a complaining witness's prior sexual conduct. State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014).

This section is not meant to prevent defendants from presenting relevant evidence, but to deprive them of the opportunity to harass and humiliate the complaining witness and divert the jury's attention to irrelevant matters. State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014).

Pursuant to subdivision (2)(a) of this section, a court does not err in excluding evidence about a victim's sexual history prior to an assault when the State does not open the door to such evidence, when the evidence does not directly relate to the issue of consent, and when the evidence would not give the jury a significantly different impression of the victim's credibility. State v. McSwine, 24 Neb. App. 453, 890 N.W.2d 518 (2017).

27-413. Offense of sexual assault, defined.

For purposes of sections 27-414 and 27-415, offense of sexual assault means sexual assault under section 28-319 or 28-320, sexual abuse by a school employee under section 28-316.01, sexual assault of a child under section 28-319.01 or 28-320.01, sexual assault by use of an electronic communication device under section 28-320.02, sexual abuse of an inmate or parolee under sections 28-322.01 to 28-322.03, sexual abuse of a protected individual under section 28-322.04, sexual abuse of a detainee under section 28-322.05, an attempt or conspiracy to commit any of the crimes listed in this section, or the commission of or conviction for a crime in another jurisdiction that is substantially similar to any crime listed in this section.

Source:Laws 2009, LB97, § 4; Laws 2015, LB294, § 8; Laws 2019, LB519, § 3; Laws 2020, LB881, § 3.

27-414. 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.

(4) This 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.

Annotations

1. Procedure

2. Miscellaneous

1. Procedure

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 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).

A hearing on prior bad acts evidence is not required if the evidence forms the factual setting of the charged offenses and is necessary to present a complete and coherent picture of the facts. State v. Kelly, 20 Neb. App. 871, 835 N.W.2d 79 (2013).

2. Miscellaneous

Because the standard set forth as to the question of whether allegations of sexual assault were proved for purposes of this section is lower than the standard of proof the State is held to in prosecuting those allegations, the principles of collateral estoppel do not bar the admission of such evidence in the situation where the defendant was acquitted of the prior allegations. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).

Despite the prejudice inherent in allegations of sexual assault, the Legislature enacted this section permitting the admission of such evidence. Assuming that this evidence met the balancing test of this section, the Legislature set no limitation on a fact finder's use of this evidence. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).

Under section 27-404, other types of character or bad acts evidence are presumed to be inadmissible, and where admissible for one or more of the particular purposes as set forth by section 27-404, the evidence may be considered only for those purposes. Thus, while section 27-404 is a rule of exclusion, this section is a rule of admissibility. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).

Under this section, assuming that notice and hearing requirements are met and the evidence survives a more-probative-than-prejudicial balancing test, evidence of prior sexual assaults are admissible if proved by clear and convincing evidence. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).

While the fact that a defendant was acquitted of sexual assault charges in a prior prosecution does not affect the threshold admissibility of the evidence under this section, it is relevant to the undue prejudice analysis conducted under this section and under section 27-403. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).

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).

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).

This section does not change the law regarding acts which are inextricably intertwined to the charged offenses, so that acts that were not considered extrinsic and therefore not subject to section 27-404 before are not extrinsic and not subject to this section now. State v. Kelly, 20 Neb. App. 871, 835 N.W.2d 79 (2013).

Trial court did not abuse its discretion in admitting evidence of a prior sexual assault where the defendant admitted to committing the earlier offense, both offenses involved young boys, and both occurred at a time when the defendant was acting as a babysitter for the boys. State v. Craigie, 19 Neb. App. 790, 813 N.W.2d 521 (2012).

27-415. Civil case; evidence of crimes in sexual assault cases.

(1) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault, evidence of that party'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 party 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) A party who intends to offer evidence under this section shall disclose the evidence to the party against whom it will be offered, 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 a party'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.

(4) This 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, § 6.

27-501. Rule 501. Privileges recognized only as provided.

Except as otherwise required by the Constitution of the United States or the State of Nebraska or provided by Act of Congress, or the Legislature of the State of Nebraska, by these rules or by other rules adopted by the Supreme Court of Nebraska which are not in conflict with laws governing such matters, no person has the privilege to:

(1) Refuse to be a witness; or

(2) Refuse to disclose any matter; or

(3) Refuse to produce any object or writing; or

(4) Prevent another from being a witness or disclosing any matter or producing any object or writing.

Source:Laws 1975, LB 279, § 22.

Annotations

An expert witness retained by one party may be compelled or will be allowed to testify to a matter of opinion upon request of the opposing party. IAFF Local 831 v. City of No. Platte, 215 Neb. 89, 337 N.W.2d 716 (1983).

27-502. Omitted.

Note: Reference to Federal Rule 502 "Required reports privileged by statute" has been omitted. Nebraska Evidence Rules have no corresponding section and for that reason the Nebraska citation of section 27-502 has also been omitted.

27-503. Rule 503. Lawyer-client privilege; definitions; general rule of privilege; who may claim privilege; exceptions to the privilege.

(1) As used in this rule:

(a) A client is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him;

(b) A lawyer is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation;

(c) A representative of the lawyer is one employed to assist the lawyer in the rendition of professional legal services; and

(d) A communication is confidential if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

(2) A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (a) between himself or his representative and his lawyer or his lawyer's representative, or (b) between his lawyer and the lawyer's representative, or (c) by him or his lawyer to a lawyer representing another in a matter of common interest, or (d) between representatives of the client or between the client and a representative of the client, or (e) between lawyers representing the client.

(3) The privilege may be claimed by the client, his guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association or other organization, whether or not in existence. The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. His authority to do so is presumed in the absence of evidence to the contrary.

(4) There is no privilege under this rule:

(a) If the services of the lawyer are sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; or

(b) As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction; or

(c) As to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer; or

(d) As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or

(e) As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.

Source:Laws 1975, LB 279, § 23.

Annotations

The party asserting a lawyer-client privilege has impliedly waived it through his or her own affirmative conduct where (1) assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his or her defense. State v. Roeder, 262 Neb. 951, 636 N.W.2d 870 (2001).

If the district court determines a party asserting the attorney-client privilege has made out a prima facie claim, it shall (1) order the alleged protected material produced to the court, (2) order the asserting party to submit an index directing the court to the specific portions of each of the listed documents that allegedly constitute protected material, (3) privately review the material outside the presence of all counsel, (4) make a determination of whether the material is protected, and (5) seal the material for purposes of appellate review. Greenwalt v. Wal-Mart Stores, Inc., 253 Neb. 32, 567 N.W.2d 560 (1997).

In response to a motion to compel production, a party asserting the attorney-client privilege must make out a prima facie claim that the privilege applies by submitting a motion for protective order, in affidavit form, verifying the facts critical to the assertion of the privilege, which must (1) verify that it accurately describes each of the documents in question; (2) list the documents and provide a summary that includes (a) the type of document, (b) the subject matter of the document, (c) the date of the document, (d) the author of the document, and (e) each recipient of the document; and (3) state with specificity, in a nonconclusory manner, how each element of the asserted privilege or doctrine is met, to the extent possible, without revealing the information alleged to be protected. Greenwalt v. Wal-Mart Stores, Inc., 253 Neb. 32, 567 N.W.2d 560 (1997).

A communication concerning the date, time, and place of a scheduled trial is not confidential in nature and is not protected from disclosure by this section. State v. Hawes, 251 Neb. 305, 556 N.W.2d 634 (1996).

A litigant is not permitted to thrust his lack of knowledge into litigation as a foundation or condition necessary to sustain his claim against another while simultaneously retaining the lawyer-client privilege to frustrate proof of knowledge negating the very foundation or condition necessary to prevail on the claim asserted. League v. Vanice, 221 Neb. 34, 374 N.W.2d 849 (1985).

Under the provisions of this section, a communication between a lawyer and a client is not privileged if the services of the lawyer are sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a fraud. Doyle v. Union Ins. Co., 202 Neb. 599, 277 N.W.2d 36 (1979).

27-504. Rule 504. Physician-patient privilege; professional counselor-client privilege; definitions; general rule of privilege; who may claim privilege; exceptions to the privilege.

(1) As used in this rule:

(a) A patient is a person who consults or is examined or interviewed by a physician for purposes of diagnosis or treatment of his or her physical, mental, or emotional condition;

(b) A physician is (i) a person authorized to practice medicine in any state or nation or who is reasonably believed by the patient so to be or (ii) a person licensed as a psychologist under the laws of any state or nation who devotes all or a part of his or her time to the practice of psychology;

(c) A client is a person who consults or is interviewed by a professional counselor for professional counseling as defined in section 38-2118;

(d) A professional counselor is a person certified as a professional counselor pursuant to section 38-2132; and

(e) A communication is confidential if not intended to be disclosed to third persons other than those present to further the interest of (i) the patient in the consultation, examination, or interview, persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the physician, including members of the patient's family, or (ii) the client participating in professional counseling by a professional counselor.

(2)(a) A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purposes of diagnosis or treatment of his or her physical, mental, or emotional condition among himself or herself, his or her physician, or persons who are participating in the diagnosis or treatment under the direction of the physician, including members of the patient's family.

(b) A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made during counseling between himself or herself, his or her professional counselor, or persons who are participating in the counseling under the direction of the professional counselor, including members of the client's family.

(3) The privilege may be claimed by the patient or client, by his or her guardian or conservator, or by the personal representative of a deceased patient or client. The person who was the physician or professional counselor may claim the privilege but only on behalf of the patient or client. His or her authority so to do is presumed in the absence of evidence to the contrary.

(4)(a) There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for physical, mental, or emotional illness if the physician, in the course of diagnosis or treatment, has determined that the patient is in need of hospitalization or if a professional counselor deems it necessary to refer a client to determine if there is need for hospitalization.

(b) If the judge orders an examination of the physical, mental, or emotional condition of the patient, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise.

(c) There is no privilege under this rule as to communications relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he or she relies upon the condition as an element of his or her claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his or her claim or defense.

(d) There is no privilege under this rule in any judicial proceedings under the Nebraska Juvenile Code regarding injuries to children, incompetents, or disabled persons or in any criminal prosecution involving injury to any such person or the willful failure to report any such injuries.

(e) There is no privilege under this rule in any judicial proceeding regarding unlawfully obtaining or attempting to obtain (i) a controlled substance, (ii) a written or oral prescription for a controlled substance, or (iii) the administration of a controlled substance from a practitioner. For purposes of this subdivision, the definitions found in section 28-401 shall apply.

Source:Laws 1975, LB 279, § 24; Laws 1988, LB 273, § 1; Laws 1988, LB 790, § 1; Laws 1990, LB 571, § 1; Laws 1992, LB 1019, § 29; Laws 1993, LB 130, § 1; Laws 1994, LB 1210, § 2; Laws 2007, LB463, § 1117.

Cross References

Nebraska Juvenile Code, see section 43-2,129.

Annotations

Under subsection (4)(c) of this section, when plaintiff files a personal injury claim, he waives the physician-patient privilege as to all the information concerning the health and medical history relevant to the matters which plaintiff has put at issue. Vredeveld v. Clark, 244 Neb. 46, 504 N.W.2d 292 (1993).

A party attempting to exclude evidence on the basis of the physician-patient privilege has the burden of proving that the information obtained by the physician falls within the strict ambit of that rule of evidence. To be privileged, information obtained during the existence of a physician-patient relationship must be necessary for the physician to properly discharge his duties. A patient's privilege to prevent any other person from disclosing confidential communications extends only to communications made for the purposes of diagnosis or treatment of his physical, mental, or emotional condition. State v. Irish, 223 Neb. 578, 391 N.W.2d 137 (1986).

When mental condition is in issue, the physician-patient privilege is waived. Clark v. Clark, 220 Neb. 771, 371 N.W.2d 749 (1985).

Under the terms of this provision, when the mental condition of a parent is in issue, evidence from the parent's treating psychiatrist is admissible in a juvenile court proceeding to determine child custody. In re Interest of Spradlin, 210 Neb. 734, 317 N.W.2d 59 (1982).

Results of blood alcohol test conducted on blood sample taken from unconscious driver in hospital were inadmissible, under physician-patient privilege, in wrongful death action against driver. Branch v. Wilkinson, 198 Neb. 649, 256 N.W.2d 307 (1977).

This section provides a privilege for professional counsel-patient communications, but under subsection (4)(d), no privilege exists in criminal prosecutions for injuries to children. State v. McMillion, 23 Neb. App. 687, 875 N.W.2d 877 (2016).

Section 38-3131 does not nullify the rule set forth in subdivision (2)(a) of this section. In re Interest of Dennis W., 14 Neb. App. 827, 717 N.W.2d 488 (2006).

This section sets forth the physician-patient privilege that applies to individuals such as a licensed psychologist; such privilege is nullified in proceedings to hospitalize the patient for physical, mental, or emotional illness if the physician, in the course of diagnosis or treatment, has determined that the patient is in need of hospitalization. In re Interest of Dennis W., 14 Neb. App. 827, 717 N.W.2d 488 (2006).

The neglect of a child is an injury to the child's welfare and rights, and it constitutes one of the exceptions to the physician-patient privilege recognized in this section. Exception to physician-patient privilege in juvenile proceedings is not restricted to actions which occur inside the walls of the courtroom. In re Interest of J.S., 1 Neb. App. 518, 499 N.W.2d 89 (1993).

27-505. Rule 505. Husband-wife privilege; general rule of privilege; definitions; waiver; criminal cases; exceptions to the privilege.

(1) Neither husband nor wife can be examined in any case as to any confidential communication made by one to the other while married, nor shall they after the marriage relation ceases be permitted to reveal in testimony any such communication while the marriage subsisted except as otherwise provided by law. This privilege may be waived only with the consent of both spouses. After the death of one, it may be waived by the survivor.

For purposes of this section (a) a confidential communication shall mean a communication which is made privately by any person to his or her spouse with no intention that such communication be disclosed to any other person and (b) communication shall include any action on the part of a spouse if the action reasonably appears to have been intended to communicate a message from one spouse to the other.

(2) During the existence of the marriage, a husband and wife can in no criminal case be a witness against the other. This privilege may be waived only with the consent of both spouses.

(3) These privileges may not be claimed:

(a) In any criminal case where the crime charged is a crime of violence, bigamy, incest, or any crime committed by one against the person or property of the other or of a child of either or in any criminal prosecution against the husband for wife or child abandonment;

(b) In any case brought by either husband or wife against a third person relating to their marriage relationship or the interruption of or interference with such relationship; or

(c) In any case brought by either husband or wife against the other for divorce or annulment of the marriage or for support.

Source:Laws 1975, LB 279, § 25; Laws 1984, LB 696, § 1.

Annotations

1. Scope

2. Constitutionality

1. Scope

Subdivision (3)(a) of this statutory section, as amended in 1984, now permits a spouse to testify against the other spouse in any criminal case where the crime charged is a crime of violence. State v. Keithley, 227 Neb. 402, 418 N.W.2d 212 (1988).

In a prosecution for a crime of violence, the defendant's spouse may be called to testify against the defendant as to any matter, including confidential communications. State v. Burchett, 224 Neb. 444, 399 N.W.2d 258 (1986).

In a criminal case, a spouse may not testify when motion for new trial is still pending and when the testimony would occur during the time period during which the parties are barred from remarriage. State v. Palmer, 215 Neb. 273, 338 N.W.2d 281 (1983).

Spousal privilege may not be asserted in a case of sexual assault under section 28-319, R.R.S.1943, even though that statute does not use the term rape. State v. Vicars, 207 Neb. 325, 299 N.W.2d 421 (1980).

2. Constitutionality

The phrase "crime of violence" as used in this section is not unconstitutionally vague. The privilege against spousal testimony in a criminal case may be waived with the consent of both parties, and may not be claimed in any criminal case where the crime charged is a crime of violence. State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992).

Statute as amended in 1984 determined not to be ex post facto as applied to the defendant. State v. Burchett, 224 Neb. 444, 399 N.W.2d 258 (1986).

Amendment to section was neither unconstitutionally vague nor an ex post facto law. The clear meaning of statute is that the privilege may not be claimed where the crime charged is a crime of violence, bigamy, incest, or any crime committed by one against the person or property of another. Murder is a crime of violence under this section, and this section applies to all crimes of violence regardless of who the victim may be. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).

Abolition of the privilege preventing a spouse from testifying about any confidential communications made by one spouse to the other in crimes of violence does not constitute special legislation and does not grant a special privilege in violation of Neb. Const., Art. III, sec. 18, nor does it offend concepts of due process and equal protection. State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985).

27-506. Rule 506. Communications to clergyman; definitions; general rule of privilege; who may claim privilege.

(1) As used in this rule:

(a) A clergyman is a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him; and

(b) A communication is confidential if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

(2) A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual advisor.

(3) The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The clergyman may claim the privilege on behalf of the person. His authority so to do is presumed in the absence of evidence to the contrary.

Source:Laws 1975, LB 279, § 26.

27-507. Rule 507. Political vote; privilege.

Every person has a privilege to refuse to disclose the tenor of his vote at a political election conducted by secret ballot unless the vote was cast illegally.

Source:Laws 1975, LB 279, § 27.

27-508. Rule 508. Trade secrets; privilege; protective measures.

A person has a privilege, which may be claimed by him or his agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret owned by him, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. When disclosure is directed, the judge shall take such protective measures as the interests of the holder of the privilege and of the parties and the furtherance of justice may require.

Source:Laws 1975, LB 279, § 28.

Annotations

Procedure established for use by the Nebraska Public Service Commission when deciding whether to publicly disclose information which it has found to be relevant and necessary for its proceedings and which a party contends to be in the nature of a trade secret or confidential research, development, or commercial information. In re Application of Northwestern Bell Telephone Co., 223 Neb. 415, 390 N.W.2d 495 (1986).

Some factors to be considered in determining whether given information is one's trade secret are (1) the extent to which the information is known outside of his business, (2) the extent to which it is known by employees and others involved in his business, (3) the extent of measures taken by him to guard the secrecy of the information, (4) the value of the information to him and his competitors, (5) the amount of effort or money expended by him in developing the information, and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. In re Application of Northwestern Bell Tel. Co., 223 Neb. 415, 390 N.W.2d 495 (1986).

27-509. Rule 509. Secrets of state and other official information; general rule of privilege; who may claim privilege; procedure; effect of sustaining claim.

(1) The government has a privilege to refuse to give evidence and to prevent any public officer from giving evidence as to communications made by or to such public officer in official confidence when the public interest would suffer by the disclosure.

(2) The privilege may be claimed by the public officer sought to be examined, or by the chief officer of the department of government administering the subject matter which the evidence concerned. The required showing may be made in whole or in part in the form of a written statement. The judge may hear the matter in chambers, but all counsel are entitled to inspect the claim and showing and be heard thereon. The judge may take any protective measure which the interest of the government and the furtherance of justice may require.

(3) If the circumstances of the case indicate a substantial possibility that a claim of privilege would be appropriate but has not been made because of oversight or lack of knowledge, the judge shall give or cause notice to be given to the officer entitled to claim the privilege and shall stay further proceedings a reasonable time to afford opportunity to assert a claim of privilege.

(4) If a claim of privilege is sustained in a proceeding to which the government is a party and it appears that another party is thereby deprived of material evidence, the judge shall make any further orders which the interests of justice require, including striking the testimony of a witness, declaring a mistrial, finding against the government upon an issue as to which the evidence is relevant, or dismissing the action.

Source:Laws 1975, LB 279, § 29.

27-510. Rule 510. Identity of informer; rule of privilege; who may claim; exceptions; informer appearing as a witness; procedure; orders; legality of obtaining evidence.

(1) The government or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.

(2) The privilege may be claimed by an appropriate representative of the government, regardless of whether the information was furnished to an officer of the government, or of a state or subdivision thereof. The privilege may be claimed by an appropriate representative of a state or subdivision if the information was furnished to an officer thereof, except that in criminal cases the privilege shall not be allowed if the government objects.

(3)(a) No privilege exists under this rule if the identity of the informer or his interest in the subject matter of his communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer's own action, or if the informer appears as a witness.

(b) If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case or of a material issue on the merits in a civil case to which the government is a party, and the government invokes the privilege, the judge shall give the government an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing may be in the form of affidavits or testimony, as the judge directs. If the judge finds that there is a reasonable probability that the informer can give the testimony, and the government elects not to disclose his identity, the judge on motion of the defendant in a criminal case shall dismiss the charges to which the testimony would relate, and the judge may do so on his own motion. In civil cases, he may make any order that justice requires. Evidence submitted to the judge shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without an order of court. All counsel shall be permitted to be present at any stage at which counsel for any party is permitted to be present.

(c) If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the judge is not satisfied that the information was received from an informer reasonably believed to be reliable or credible, he may require the identity of the informer to be disclosed. The judge shall, on request of the government, direct that the disclosure be made in camera. All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage of proceedings under this subdivision except a disclosure in camera, at which no counsel or party shall be permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the government.

Source:Laws 1975, LB 279, § 30.

Annotations

A ruling made under the initial step of subdivision (3)(b) of this section, regarding whether an informer may be able to give testimony necessary to a fair determination, requires a court to use its judgment and thus exercise its discretion. An appellate court therefore reviews such a ruling for an abuse of discretion. State v. Blair, 300 Neb. 372, 914 N.W.2d 428 (2018).

The decision whether to reveal the identity of a confidential informant is controlled by this section, and judicial discretion is involved only to the extent this section makes discretion a factor in determining that question. Where this section commits a question at issue to the discretion of the trial court, an appellate court reviews the trial court's determination for an abuse of discretion. State v. Blair, 300 Neb. 372, 914 N.W.2d 428 (2018).

Under this section, the trial judge, after determining that the evidence of an informer may be relevant ("necessary to a fair determination of the issue of guilt or innocence"), holds an in camera hearing to determine whether "there is a reasonable probability that the informer can give the testimony"; if it is determined that the informer would be unable to give the testimony, the judge need not require that the informer's identity be disclosed. State v. Hankins, 232 Neb. 608, 441 N.W.2d 854 (1989).

The State has a limited privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law. State v. Wade, 7 Neb. App. 169, 581 N.W.2d 906 (1998).

Whether dismissal is required under this section in the case of an unknown informant depends upon the facts of each case. State v. Brown, 5 Neb. App. 889, 567 N.W.2d 307 (1997).

A sufficient showing was made pursuant to subsection (3)(b) of this section to mandate an in camera showing by the government as to whether an informer disclosed in a separate case was the informer in the present case, since the defendant had shown that such an in camera review was necessary to determine whether the State had waived the privilege of the informer's identity under subsection (3)(a) of this section. State v. Lomack, 4 Neb. App. 465, 545 N.W.2d 455 (1996).

27-511. Rule 511. Waiver of privilege by voluntary disclosure.

A person upon whom these rules confer a privilege against disclosure of a confidential matter or communication waives the privilege if he or his predecessor, while holder of the privilege, voluntarily discloses or consents to disclosure of any significant part of the matter or communication. This rule does not apply if the disclosure is itself a privileged communication.

Source:Laws 1975, LB 279, § 31.

27-512. Rule 512. Privileged matter disclosed under compulsion or without opportunity to claim privilege.

Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if the disclosure was (1) compelled erroneously or (2) made without opportunity to claim the privilege.

Source:Laws 1975, LB 279, § 32.

27-513. Rule 513. Comment on or inference from claim of privilege improper; jury instruction.

(1) The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.

(2) In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.

(3) Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.

Source:Laws 1975, LB 279, § 33.

Annotations

A person cannot prove he or she suffered ineffective assistance of counsel by his or her counsel's failure to call a witness who would have most likely invoked Fifth Amendment protections against self-incrimination, because the trial court would have barred the witness from testifying to avoid the witness from claiming privilege in the presence of the jury. State v. Britt, 310 Neb. 69, 963 N.W.2d 533 (2021).

A trial court may bar the testimony of a defendant's accomplice who seeks to exculpate the defendant by testifying as to events that are crucial regarding the defendant's culpability, but intends to invoke his or her Fifth Amendment privilege against self-incrimination during cross-examination. State v. Clausen, 307 Neb. 968, 951 N.W.2d 764 (2020).

Although a witness invoked his Fifth Amendment privilege in the jury's presence, no error was plainly evident from the record where the bill of exceptions did not contain evidence showing that the parties or the court knew the witness would invoke his privilege and where, after being given immunity, the witness testified and was subject to cross-examination. State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019).

A hearing to determine whether a privilege is claimed is not absolutely required to comply with the requirements of this section, but if held, it is straightforward in that it must provide the witness the opportunity to testify or invoke a privilege. The State may then offer immunity in exchange for the witness’s testimony. Finally, the trial court must decide whether the witness intends to testify and if it would be prejudicial to either the defendant or the State to call or not to call the witness. State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).

Pursuant to subsection (1) of this section, although the trial judge's comments were certainly unnecessary and ill advised, they did not permit the jury to draw an unfavorable inference from the defendant's failure to testify and adduce evidence. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).

A prosecutor's reference to the defendant's failure to make an exculpatory statement before the defendant is in custody does not violate the defendant's right to remain silent. State v. Gregory, 220 Neb. 778, 371 N.W.2d 754 (1985).

27-601. Rule 601. General rule of competency.

Every person is competent to be a witness except as otherwise provided in these rules.

Source:Laws 1975, LB 279, § 34.

Annotations

The question of the competency of a child witness rests largely within the discretion of the trial court, and that determination will not be disturbed in the absence of an abuse of discretion. State v. Guy, 227 Neb. 610, 419 N.W.2d 152 (1988).

No abuse of discretion to allow 5-year-old's testimony when conflicting testimony was caused by nature of defense counsel's questions, which created question of credibility and not competency. State v. Miner, 216 Neb. 309, 343 N.W.2d 899 (1984).

Except as specifically provided otherwise by the rules of evidence, every person is competent to be a witness about those things of which he has personal knowledge. Tuch v. Tuch, 210 Neb. 601, 316 N.W.2d 304 (1982).

Where injured victim of defendant's assault with a gun was defendant's wife, she was competent to testify where the jury had prior knowledge of her condition. State v. Martin, 198 Neb. 811, 255 N.W.2d 844 (1977).

27-602. Rule 602. Lack of personal knowledge; witness may not testify; evidence.

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of section 27-703, relating to opinion testimony by expert witnesses.

Source:Laws 1975, LB 279, § 35.

Annotations

Under this section and sections 27-701 and 27-702, it is improper for a witness to testify whether another person may or may not have been telling the truth in a specific instance. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

Under this section, lay witnesses may testify only as to factual matters based upon their personal knowledge. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

A party's "assumption" of a fact confesses the absence of personal knowledge of the fact. Sulu v. Magana, 293 Neb. 148, 879 N.W.2d 674 (2016).

Inadequate foundation for personal knowledge was cured on cross-examination when opposing counsel questioned witness regarding matter for own purposes beyond explaining or rebutting the original evidence. State v. Rieger, 260 Neb. 519, 618 N.W.2d 619 (2000).

It was not necessary for a police officer to remember the name of a person to whom he administered a photographic array in order to have personal knowledge of that person's photographic identification. State v. Rieger, 260 Neb. 519, 618 N.W.2d 619 (2000).

In establishing foundation for test results, a witness may not testify as to whether laboratory protocols were followed unless the witness has personal knowledge of the matter, i.e., the witness performed the test or witnessed the test being performed. State v. Jackson, 255 Neb. 68, 582 N.W.2d 317 (1998).

A witness testifying to objective facts must have had means of knowing the facts from the witness' personal knowledge. State v. Kirksey, 254 Neb. 162, 575 N.W.2d 377 (1998).

A witness may not testify about the custody procedures used by a police department unless evidence is introduced to show that he or she has personal knowledge of the matter. State v. Smith, 238 Neb. 111, 469 N.W.2d 146 (1991).

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. The record supported a conclusion that the deponent did not possess or could not articulate personal knowledge. State v. Irish, 223 Neb. 578, 391 N.W.2d 137 (1986).

Testimony concerning observations of conduct, behavior in terms of false perceptions, or mistaken ideas, is controlled by the personal knowledge provision of this section. State v. Norfolk, 221 Neb. 810, 381 N.W.2d 120 (1986).

27-603. Rule 603. Oath or affirmation.

Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so.

Source:Laws 1975, LB 279, § 36.

27-604. Rule 604. Interpreters.

An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation that he will make a true translation.

Source:Laws 1975, LB 279, § 37.

27-605. Rule 605. Competency of judge as witness.

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

Source:Laws 1975, LB 279, § 38.

Annotations

1. Judge as witness

2. Applicability

3. Objection

4. Miscellaneous

1. Judge as witness

Comments by the judge presiding over a matter are clearly not evidence, because a judge may not assume the role of a witness. In re Interest of J.K., 300 Neb. 510, 915 N.W.2d 91 (2018).

The trial judge may not assume the role of a witness, and comments made by the trial judge in such a capacity are not evidence. State v. Baird, 259 Neb. 245, 609 N.W.2d 349 (2000).

A judge presiding at a trial may not testify at that trial to establish the content of the court's record. Everson v. O'Kane, 11 Neb. App. 74, 643 N.W.2d 396 (2002).

This section does not prohibit a judge who presided over a defendant's plea and sentencing from later testifying at an evidentiary hearing on a defendant's motion for postconviction relief where the judge is not the presiding judge at the evidentiary hearing on postconviction relief. State v. Stevenson, 9 Neb. App. 316, 611 N.W.2d 126 (2000).

2. Applicability

The rule prohibiting the presiding judge from testifying as a witness in that trial applies not only to formal testimony but also to whenever the judge assumes the role of a witness. State v. Livingston, 244 Neb. 757, 509 N.W.2d 205 (1993).

This section does not apply to only formal testimony; it applies also whenever the judge assumes the role of a witness. State v. Rodriguez, 244 Neb. 707, 509 N.W.2d 1 (1993).

Statutory prohibition against a presiding judge's testifying at trial as a witness applies not only to formal testimony but applies whenever the judge assumes the role of a witness, and no objection need be made in order to preserve the point. State v. Rhoads, 11 Neb. App. 731, 660 N.W.2d 181 (2003).

3. Objection

Although the defendant did not object to the judge's comments, the timely objection requirement was inapplicable because the trial judge had assumed the role of a witness. Krusemark v. Thurston Cty. Bd. of Equal., 10 Neb. App. 35, 624 N.W.2d 328 (2001).

4. Miscellaneous

When the Nebraska Evidence Rules apply to an administrative hearing, those persons performing adjudicative functions are presumptively incompetent to testify. However, there are limits to an agency's power to shield its employees from a subpoena. An employee with unique knowledge indispensable to the adjudication may be subject to a subpoena. Central Platte NRD v. State of Wyoming, 245 Neb. 439, 513 N.W.2d 847 (1994).

Parties may not waive the disqualification of the judge presiding at the trial when he is a material witness or has personal knowledge of disputed evidentiary facts concerning the proceeding. Cline v. Franklin Pork, Inc., 210 Neb. 238, 313 N.W.2d 667 (1981).

This section prohibits appellate courts from treating statements of a trial judge as evidence of the condition of the trial court's docket. State v. Soltis, 11 Neb. App. 61, 644 N.W.2d 160 (2002).

27-606. Rule 606. Competency of juror as witness; at the trial; inquiry into the validity of verdict or indictment.

(1) A member of the jury may not testify as a witness before that jury in the trial of the case in which he is sitting as a juror. If he is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

(2) Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him indicating an effect of this kind be received for these purposes.

Source:Laws 1975, LB 279, § 39.

Annotations

1. Scope

2. Juror testimony permitted

3. Juror testimony not permitted

4. Miscellaneous

1. Scope

Intra-deliberational statements by a juror sharing pretrial community knowledge of the general reputation of the victim's family, which did not directly relate to a factual question in the case, and jurors' speculation about whether they would be in danger if they did not convict the defendant, was not extraneous information. State v. Allen, 314 Neb. 663, 992 N.W.2d 712 (2023).

In an evidentiary hearing regarding an alternate juror's impermissible presence and possible participation in deliberations of the jury, the court is allowed to question individual jurors and the alternate as to how, if at all, the alternate communicated to the jury and inquire as to individual jurors whether the alternate's outside influence was brought to bear upon them. State v. Madren, 308 Neb. 443, 954 N.W.2d 881 (2021).

Subsection (2) of this section does not allow a juror's affidavit to impeach a verdict on the basis of jury motives, methods, misunderstanding, thought processes, or discussions during deliberations. State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002).

Subsection (2) of this section provides two exceptions to the general prohibition against juror testimony regarding any effect on the juror's mental state. A juror may testify regarding (1) whether extraneous prejudicial information was brought to the jury's attention or (2) whether any outside influence was improperly brought to bear upon any juror. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).

Subsection (2) of this section prohibits admission of a juror's affidavit to impeach a verdict on the basis of the jury's motives, methods, misunderstanding, thought processes, or discussions during deliberations which enter into the verdict. Kopecky v. National Farms, Inc., 244 Neb. 846, 510 N.W.2d 41 (1994).

Subsection (2) of this section prohibits inquiry into a jury's votes. State v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993).

Under the provisions of subsection (2) of this section, a juror may testify as to whether "extraneous prejudicial information was improperly brought" to his or her attention, but no evidence may be received as to the effect of any statement upon a juror's mind, its influence one way or another, or the mental processes of a juror in connection therewith. State v. McDonald, 230 Neb. 85, 430 N.W.2d 282 (1988); Simants v. State, 202 Neb. 828, 277 N.W.2d 217 (1979).

Subsection (2) of this section controls inquiries into the validity of a verdict reached by a jury. State v. Roberts, 227 Neb. 489, 418 N.W.2d 246 (1988).

Juror's misconduct does not irrebuttably presume prejudice; this section inquires into validity of verdict when extraneous prejudicial information may have been brought to jury's attention. Ellis v. Far-Mar-Co, 215 Neb. 736, 340 N.W.2d 423 (1983).

When polling the jury, the trial court is not required to go beyond the procedure specified in section 25-1124 by inquiring into the basis for the jury's determination of the percentage of a party's negligence, because such inquiry would invade the province of the jury. Anis v. BryanLGH Health System, 14 Neb. App. 372, 707 N.W.2d 60 (2005).

2. Juror testimony permitted

At hearing on motion for new trial, affidavits of jurors were admissible only to show that presubmission discussions took place over 5 days of 7-day trial. Other comments in the affidavits were inadmissible. Hunt v. Methodist Hospital, 240 Neb. 838, 485 N.W.2d 737 (1992).

Subsection (2) of this section does not bar the use of a juror affidavit to establish that a jury made a transpositional error in completing verdict forms in the consolidated trial of cases against multiple defendants. Harmon Cable Communications v. Scope Cable Television, 237 Neb. 871, 468 N.W.2d 350 (1991).

Subsection (2) of this section permits use of a juror's affidavit to establish that the jury considered prejudicial information emanating from a source other than evidence presented at trial. Zeeb v. Delicious Foods, 231 Neb. 358, 436 N.W.2d 190 (1989); Rahmig v. Mosley Machinery Co., 226 Neb. 423, 412 N.W.2d 56 (1987).

3. Juror testimony not permitted

Juror affidavits cannot be used for the purpose of showing a juror was confused. Facilities Cost Mgmt. Group v. Otoe Cty. Sch. Dist., 298 Neb. 777, 906 N.W.2d 1 (2018).

A trial court's duty to hold an evidentiary hearing on a substantiated allegation of jury misconduct does not extend into matters which are barred from inquiry under subsection (2) of this section. State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).

A juror who failed to disclose during voir dire that he had an uncle who had been murdered did not bring in extraneous information. Juror statement asserting that the jury did not follow instructions during deliberations was properly excluded under subsection (2) of this section because it did not involve extraneous information. State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002).

A juror's intradeliberational statements, when based on personal knowledge not directly related to the litigation at issue, do not constitute extraneous information within the meaning of subsection (2) of this section. Leavitt ex rel. Leavitt v. Magid, 257 Neb. 440, 598 N.W.2d 722 (1999).

Under subsection (2) of this section, juror's intradeliberational statements, when based on juror's personal knowledge not directly related to the litigation at issue, do not constitute "extraneous" information. Under subsection (2) of this section, juror's statements regarding experiences with inflated insurance claims and the juror's cousin's accident were not "extraneous" information. Information that has been excluded from jury consideration by a motion to strike does not constitute "extraneous" information under subsection (2) of this section. Nichols v. Busse, 243 Neb. 811, 503 N.W.2d 173 (1993).

While pursuant to subsection (2) of this section a juror's affidavit may be used to show that in reaching its verdict the jury considered prejudicial information emanating from a source other than the evidence presented at trial, such an affidavit may not be used to show a jury's misunderstanding of the law as such misunderstanding inheres in the verdict. State v. Meyer, 236 Neb. 253, 460 N.W.2d 656 (1990).

This section prohibits a juror's affidavit to impeach a verdict on the basis of jury motives, methods, misunderstandings, thought processes, or discussions during deliberations, which enter into the verdict. Rahmig v. Mosley Machinery Co., 226 Neb. 423, 412 N.W.2d 56 (1987).

A juror's understanding of the instructions constitutes neither extraneous, prejudicial information nor outside influence improperly brought to the jury's attention. In re Estate of Haddix, 211 Neb. 814, 320 N.W.2d 745 (1982).

The trial court properly refused to admit affidavits of jurors dealing with their understanding of their instructions or the way they reached their verdict. Such matters inhere in the verdict and the proffered testimony is inadmissible under this section. Lambertus v. Buckley, 206 Neb. 440, 293 N.W.2d 110 (1980).

4. Miscellaneous

The jury's consideration of a defendant's failure to testify is barred from inquiry under subsection (2) of this section. State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).

Because there is no constitutional right to obtain information about a jury's deliberations, a court's discretion under section 25-1635 to disclose juror information for good cause shown after a verdict should be tempered by the restrictions imposed under subsection (2) of this section. Golnick v. Callender, 290 Neb. 395, 860 N.W.2d 180 (2015).

A juror's knowledge about the burden of proof is personal knowledge that is not directly related to the litigation at issue and is not extraneous information. Malchow v. Doyle, 275 Neb. 530, 748 N.W.2d 28 (2008).

In the absence of a timely objection pursuant to subsection (2) of this section, a court may apply the rule sua sponte. State v. Williams, 253 Neb. 111, 568 N.W.2d 246 (1997).

Under subsection (2) of this section, extraneous material or information considered by a jury may be deemed prejudicial without proof of actual prejudice if the material or information relates to an issue submitted to the jury and there is a reasonable possibility that the extraneous material or information affected the verdict to the detriment of a litigant. Loving v. Baker's Supermarkets, 238 Neb. 727, 472 N.W.2d 695 (1991).

The defendant bears the burden of proving jury misconduct, and the inability to inquire as to how evidence affected a juror's mind does not require that the burden be shifted to the state as the defendant may inquire as to whether any extraneous prejudicial information was improperly brought to the attention of the jury. State v. Woodward, 210 Neb. 740, 316 N.W.2d 759 (1982).

27-607. Rule 607. Who may impeach.

The credibility of a witness may be attacked by any party, including the party calling him.

Source:Laws 1975, LB 279, § 40.

Annotations

Under this section, the credibility of a witness may be attacked by any party, including the party calling the witness. A party may not, however, use the rule as an artifice for putting before the jury substantive evidence that is otherwise inadmissible. But evidence of a witness' bias, however, is substantive evidence that a party can present on direct or cross-examination. State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).

Although under this section "(t)he credibility of a witness may be attacked by any party, including the party calling him (or her)," a party may not use a prior inconsistent statement of a witness under the guise of impeachment for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible. State v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993).

A party does not vouch for the credibility of its witness. State v. Joy, 220 Neb. 535, 371 N.W.2d 113 (1985).

The credibility of a witness may be attacked by any party, including the party who called the witness. State v. Marco, 220 Neb. 96, 368 N.W.2d 470 (1985).

The rule allowing a party to impeach his own witness may not be used as an artifice by which inadmissible matter may be gotten to the jury through the device of offering a witness whose testimony is or should be known to be adverse in order, under the name of impeachment, to get before the jury for its consideration a favorable ex parte statement the witness had made. State v. Brehmer, 211 Neb. 29, 317 N.W.2d 885 (1982).

Where the need for impeachment is small or nonexistent and the danger that the prior inconsistent statement will be considered substantively is great, the statement should be excluded. State v. Price, 202 Neb. 308, 275 N.W.2d 82 (1979).

27-608. Rule 608. Evidence of character and conduct of witness; opinion and reputation evidence of character; specific instances of conduct; privilege against self-incrimination.

(1) The credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion, but subject to these limitations: (a) The evidence may refer only to character for truthfulness or untruthfulness, and (b) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(2) Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in section 27-609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness be inquired into on cross-examination of the witness (a) concerning his character for truthfulness or untruthfulness, or (b) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to matters which relate only to credibility.

Source:Laws 1975, LB 279, § 41.

Annotations

1. Credibility

2. Miscellaneous

1. Credibility

Subsection (2) of this section permits questioning during cross-examination only on specific instances of conduct not resulting in a criminal conviction. State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).

Subsection (2) of this section does not prohibit inquiry into specific instances of a witness' conduct; it only prohibits proof of that conduct by extrinsic evidence. State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010).

The application of subsection (2) of this section to exclude extrinsic evidence of a witness' conduct is limited to instances where the evidence is introduced to show a witness' general character for truthfulness. Evidence relevant to a material issue is not rendered inadmissible because it happens to include references to specific bad acts of a witness, and such evidence should be admitted where it is introduced to disprove a specific fact material to the case. Subsection (2) of this section does not bar evidence introduced to contradict—and which the jury might find to disprove—a witness's testimony as to a material issue of the case. Sturzenegger v. Father Flanagan's Boys' Home, 276 Neb. 327, 754 N.W.2d 406 (2008).

Whether section 27-404(2) or this section applies to the admissibility of other-acts evidence depends on the purpose for which the proponent introduced the other-acts evidence. Section 27-404(2) applies when extrinsic evidence is offered as relevant to a material issue in the case. This section applies when extrinsic evidence is offered to impeach a witness, to show the character of the witness for untruthfulness—in other words, where the only theory of relevance is impeachment by prior misconduct. So, because subsection (2) of this section affects only evidence of prior instances of conduct when properly relevant solely for the purpose of attacking or supporting a witness' credibility, it in no way affects the admission of evidence of such prior acts for other purposes under section 27-404(2). Sturzenegger v. Father Flanagan's Boys' Home, 276 Neb. 327, 754 N.W.2d 406 (2008).

Once a witness' character for truthfulness has been attacked, the prosecution may, under this section, adduce rebuttal evidence on that issue. State v. Gregory, 220 Neb. 778, 371 N.W.2d 754 (1985).

A prostitution offense does not substantially impugn credibility, since such conduct does not necessarily entail dishonesty or false statement and, therefore, it is not probative of untruthfulness. State v. Williams, 219 Neb. 587, 365 N.W.2d 414 (1985).

It is within the discretion of the trial court to admit character evidence to support the credibility of a witness whose credibility has been attacked by opinion or reputation evidence or otherwise. State v. Steinmark, 201 Neb. 200, 266 N.W.2d 751 (1978).

Whether a showing of inconsistent statements by a witness is an attack on credibility entitling the witness to present evidence of veracity is a matter for the discretion of the trial court. State v. King, 197 Neb. 729, 250 N.W.2d 655 (1977).

Specific instances of conduct of witness relative to credibility, other than conviction of crime, may not be proved by extrinsic evidence, but in discretion of court may be inquired into on cross-examination concerning character for truthfulness or untruthfulness. State v. Fonville, 197 Neb. 220, 248 N.W.2d 27 (1976).

To be admissible, reputation evidence of a witness's untruthfulness must embody the collective judgment of the community and must be derived from a group whose size constitutes an indicium of inherent reliability. The community in which the party has the reputation for untruthfulness must be sufficiently large; if the group is too insular, its opinion of the witness's reputation for untruthfulness may not be reliable because it may have been formed with the same set of biases. State v. Brooks, 23 Neb. App. 560, 873 N.W.2d 460 (2016).

2. Miscellaneous

Subsection (2) of this section does not affect the admissibility of evidence that has become relevant and admissible under the specific contradiction doctrine. State v. Carpenter, 293 Neb. 860, 880 N.W.2d 630 (2016).

Testimony of deputy sheriff was improper under this section. State v. Beermann, 231 Neb. 380, 436 N.W.2d 499 (1989).

Evidence of conviction of a crime is, in some respects, more limited than under former section, but is not restricted to felonies as such. State v. Lang, 197 Neb. 47, 246 N.W.2d 608 (1976).

A therapist's testimony that she observed the defendant look astonished when he explained to the therapist he had been charged with sexually abusing a minor and that the defendant denied the abuse to the therapist was inadmissible under subsection (2) of this section. State v. Egger, 8 Neb. App. 740, 601 N.W.2d 785 (1999).

The type of character evidence admissible under this section and section 27-405 does not include the opinion of an expert witness regarding the truthfulness of another witness based upon purported scientific studies. State v. Maggard, 1 Neb. App. 529, 502 N.W.2d 493 (1993).

27-609. Rule 609. Impeachment by evidence of conviction of crime; general rule; time limit; effect of pardon, annulment, or equivalent procedure; juvenile adjudications; pendency of appeal.

(1) For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination, but only if the crime (a) was punishable by death or imprisonment in excess of one year under the law under which he was convicted or (b) involved dishonesty or false statement regardless of the punishment.

(2) Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of such conviction or of the release of the witness from confinement, whichever is the later date.

(3) Evidence of a conviction is not admissible under this rule if the conviction has been the subject of a pardon, annulment, or other equivalent procedure which was based on innocence.

(4) Evidence of juvenile adjudications is not admissible under this rule.

(5) Pendency of an appeal renders evidence of a conviction inadmissible.

Source:Laws 1975, LB 279, § 42.

Annotations

1. Prior convictions

2. Miscellaneous

1. Prior convictions

Subsection (1) of this section applies not only to the questioning of an opposing party’s witnesses, but also to the questioning of the party’s own witnesses. State v. Castillo-Zamora, 289 Neb. 382, 855 N.W.2d 14 (2014).

For the purposes of this section, one has been convicted of a crime only after a finding of guilt, an imposition of a sentence, and the expiration of the time for appeal. Ipock v. Union Ins. Co., 242 Neb. 448, 495 N.W.2d 905 (1993).

Under subsection (2) of this section, cross-examination of a witness regarding the witness' previous felony convictions and the number thereof is proper, but only if 10 or fewer years have elapsed since the date of conviction or the release of the witness from confinement. State v. Kramer, 238 Neb. 252, 469 N.W.2d 785 (1991).

Prosecutor's further inquiry as to the nature of the defendant's previous conviction of false information after the defendant admitted his conviction was clearly improper and constituted reversible error. State v. Garza, 236 Neb. 202, 459 N.W.2d 739 (1990).

When a defendant testifies on his own behalf, the prosecuting attorney may question him as to his previous convictions for felony and the number thereof, but no details as to the nature of the charges or other details may be elicited or received. State v. Whiteley, 234 Neb. 693, 452 N.W.2d 290 (1990).

For proper impeachment under this section, although the State may elicit information concerning the number of a defendant's convictions within the last ten years, the State is prohibited from naming or identifying the crime underlying defendant's conviction and from inquiring into details surrounding the conviction. Whether a defendant's prior conviction is admissible for the defendant's impeachment is a preliminary question of admissibility to be determined in accordance with Neb. Evid. R. 104. State v. Olsan, 231 Neb. 214, 436 N.W.2d 128 (1989).

In attacking the credibility of a witness under this section by establishing that such witness has previously committed a felony or a crime involving dishonesty or a false statement, the inquiry must end there, and it is improper to inquire into the nature of the crime, the details of the offense, or the time spent in prison as a result thereof. State v. Johnson, 226 Neb. 618, 413 N.W.2d 897 (1987).

A conviction for the offense of issuing a bad check in violation of section 28-611 is, as a matter of law, a crime involving dishonesty or false statement. State v. Fleming, 223 Neb. 169, 388 N.W.2d 497 (1986).

If, upon questioning, a witness admits to a prior conviction, the inquiry should end there, and thereafter it is improper to inquire into the nature of the crime or the details of the offense. State v. Daugherty, 215 Neb. 45, 337 N.W.2d 128 (1983).

In the absence of something other than ordinary stealing, petit larceny is not a crimen falsi as contemplated by the phrase in this section; if such special circumstances exist, it is incumbent upon the prosecution to bring them to the court's attention. State v. Williams, 212 Neb. 860, 326 N.W.2d 678 (1982).

Evidence of conviction of a crime is, in some respects, more limited than under former section, but is not restricted to felonies as such. State v. Lang, 197 Neb. 47, 246 N.W.2d 608 (1976).

When a defendant testifies in a criminal trial in his or her own behalf, he or she is precluded from testifying regarding the details or the nature of the previous convictions because such information is not relevant to the defendant's credibility. The defendant may testify as to whether he or she has previous felony convictions or convictions involving dishonesty. State v. Howell, 26 Neb. App. 842, 924 N.W.2d 349 (2019).

While this section clearly allows a witness' credibility to be attacked with previous convictions, this section does not include pending charges. State v. White, 15 Neb. App. 486, 732 N.W.2d 677 (2007).

The fact of a felony conviction is properly used for impeachment under this section. Burke v. Harman, 6 Neb. App. 309, 574 N.W.2d 156 (1998).

Once a prior conviction has been established, the inquiry must end, and it is improper to inquire into the nature of the crime, the details of the offense, or the time spent in prison as a result thereof. State v. Edwards, 2 Neb. App. 149, 507 N.W.2d 506 (1993).

2. Miscellaneous

The prosecutor's improper further inquiry into codefendant's prior conviction was not unfairly prejudicial to defendant because such conduct and the trial court's failure to declare a mistrial did not materially influence the jury in a verdict adverse to a substantial right of the defendant. State v. Garza, 236 Neb. 215, 459 N.W.2d 747 (1990).

Evidence of juvenile adjudication is not admissible for purpose of impeachment. State v. Beach, 215 Neb. 213, 337 N.W.2d 772 (1983); State v. Caradori, 199 Neb. 691, 260 N.W.2d 617 (1977).

Where a criminal defendant testified in his own behalf, he was subject to the same rules of cross-examination as any other witness. State v. Pitts, 212 Neb. 295, 322 N.W.2d 443 (1982).

A conviction will not be set aside unless the defendant meets his burden of showing that the claimed error created not merely a possibility of prejudice but, rather, that it worked to his actual prejudice. State v. Gore, 212 Neb. 287, 322 N.W.2d 438 (1982).

Specific instances of conduct of witness relative to credibility, other than conviction of crime, may not be proved by extrinsic evidence, but in discretion of court may be inquired into on cross-examination concerning character for truthfulness or untruthfulness. State v. Fonville, 197 Neb. 220, 248 N.W.2d 27 (1976).

27-610. Rule 610. Religious beliefs or opinions.

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impaired or enhanced.

Source:Laws 1975, LB 279, § 43.

27-611. Rule 611. Mode and order of interrogation and presentation; control by judge; scope of cross-examination; leading questions.

(1) The judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (a) make the interrogation and presentation effective for the ascertainment of the truth, (b) avoid needless consumption of time, and (c) protect witnesses from harassment or undue embarrassment.

(2) Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The judge may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

(3) Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

Source:Laws 1975, LB 279, § 44.

Annotations

Fed. R. Evid. 611(a) is substantively identical to subsection (1) of this section. State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790 (2013).

The district court abused its discretion in permitting the jury to use during deliberations a demonstrative exhibit that concisely summarized the prosecutor’s case against the defendant without providing a limiting instruction. State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790 (2013).

When the object of cross-examination is to collaterally ascertain the accuracy or credibility of the witness, some latitude should be permitted, and the scope of such latitude is ordinarily subject to the discretion of the trial judge. State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007).

Pursuant to subsection (2) of this section, courts limit cross-examination of witnesses to the subject matter of direct examination and matters affecting the credibility of the witness. State v. McLemore, 261 Neb. 452, 623 N.W.2d 315 (2001).

Pursuant to subsection (2) of this section, courts limit cross-examination of witnesses to the subject matter of the direct examination and matters affecting the credibility of the witness. Pursuant to this section, the scope of cross-examination is necessarily limited by the scope of direct examination. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).

When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions; however, the trial court has broad discretion in declaring a witness hostile, and in order for the court to do so, the record should contain evidence supporting such hostility. Turner v. Welliver, 226 Neb. 275, 411 N.W.2d 298 (1987).

The extent, scope, and course of cross-examination rest within trial court's discretion, and rulings will not be disturbed on appeal absent an abuse of discretion. Fremont Nat. Bank & Trust Co. v. Beerbohm, 223 Neb. 657, 392 N.W.2d 767 (1986).

Judge may use discretion to allow leading questions in direct examination of witness who has a speech disability. State v. Brown, 220 Neb. 849, 374 N.W.2d 28 (1985).

Where a request for a physical examination of the injured party is made during the course of the trial, it rests within the sound discretion of the court whether such request is to be granted, and the ruling thereon will not be disturbed on appeal unless from all circumstances an abuse of discretion appears. Hoegerl v. Burt, 215 Neb. 752, 340 N.W.2d 428 (1983).

27-612. Rule 612. Writing used to refresh memory; rights of adverse party; matters unrelated; preservation for appeal; orders.

If a witness uses a writing to refresh his memory for the purpose of testifying, either before or while testifying, an adverse party is entitled to have it produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the judge shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the judge shall make any order justice requires.

Source:Laws 1975, LB 279, § 45.

Annotations

A party seeking access to a document used to refresh a witness' recollection bears the burden of establishing that the document sought was actually used by the witness to refresh recollection. State v. Schroder, 232 Neb. 65, 439 N.W.2d 489 (1989).

A precondition to the production and use by an adverse party of a witness' prior written statement is that the statement has been used by the witness to refresh his recollection. Rawlings v. Andersen, 195 Neb. 686, 240 N.W.2d 568 (1976).

This section requires production of not only documents used to refresh recollection in the courtroom while the witness is testifying, but also those writings the witness reviewed prior to giving testimony. State v. McMillion, 23 Neb. App. 687, 875 N.W.2d 877 (2016).

The purpose of the phrase "for the purpose of testifying" is to safeguard against wholesale exploration of an opposing party's files and to ensure that access is limited only to those writings which may fairly be said in fact to have an impact upon the testimony of the witness. State v. Jones, 6 Neb. App. 647, 577 N.W.2d 302 (1998).

27-613. Rule 613. Prior statements of witnesses; examining witness concerning prior statement; extrinsic evidence of prior inconsistent statement by witness.

(1) In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown or its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.

(2) Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in subdivision (4)(b) of section 27-801.

Source:Laws 1975, LB 279, § 46.

Annotations

This statute permits the introduction of evidence concerning prior inconsistent statements by a witness, subject to the limitation that the witness being impeached must be given an opportunity to explain or deny the prior inconsistent statement, and the opposite party must have an opportunity to interrogate the witness about the prior inconsistent statement. Further, the statement sought to be impeached cannot be about a collateral or immaterial matter. State v. Owens, 257 Neb. 832, 601 N.W.2d 231 (1999).

The foundational requirement of this section, that a witness to be impeached be given an opportunity to explain or deny an apparent inconsistent statement, does not apply to admissions or statements offered against a party to the action, if the admissions or statements were made by that party. Howard v. State Farm Mut. Auto. Ins. Co., 242 Neb. 624, 496 N.W.2d 862 (1993); Hyde v. Cleveland, 203 Neb. 420, 279 N.W.2d 105 (1979).

Trial court's initial error in not allowing the letter's author, which letter was introduced to impeach the author's trial testimony, to explain the letter's contents was corrected when counsel, through persistent questioning, was able to elicit explanatory testimony from the author. Harmon Cable Communications v. Scope Cable Television, 237 Neb. 871, 468 N.W.2d 350 (1991).

The victim is not a "party" to a criminal case for the purposes of impeachment by a prior inconsistent statement. State v. Antillon, 229 Neb. 348, 426 N.W.2d 533 (1988).

If the witness being impeached admits to the prior inconsistent statement, then he has been impeached and further extrinsic evidence is neither necessary nor generally allowed. State v. Johnson, 220 Neb. 392, 370 N.W.2d 136 (1985).

While proof of contradictory statements of a witness may be received in evidence for the purpose of aiding the jury in estimating the credibility of the witness, a party is not permitted to get before the jury, under the guise of impeachment, an ex parte statement of a witness by calling him to the stand when there is good reason to believe he will decline to testify as desired, and when in fact he only so declines. A mere refusal to testify or testimony negative in nature indicating a lack of testimonial information does not present grounds for impeaching the witness that affirmative testimony in favor of the opposite party gives for inquiry concerning prior statements contradictory of the testimony under oath at trial. State v. Brehmer, 211 Neb. 29, 317 N.W.2d 885 (1982).

Difference between this section and prior rule explained. State v. Packett, 206 Neb. 548, 294 N.W.2d 605 (1980).

The foundational requirement of this section, that a witness to be impeached be given an opportunity to explain or deny an apparently inconsistent statement, may be met either before or after the introduction of the impeaching evidence. State v. Price, 202 Neb. 308, 275 N.W.2d 82 (1979).

The requirement in subsection (2) of this section that a witness sought to be impeached by an alleged prior inconsistent statement must be afforded an opportunity to explain or deny the alleged prior inconsistent statement may be met either before or after the introduction of the extrinsic impeaching evidence. State v. Owens, 8 Neb. App. 109, 589 N.W.2d 867 (1999).

27-614. Rule 614. Calling and interrogation of witnesses by judge; objections.

(1) The judge may, on his own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

(2) The judge may interrogate witnesses, whether called by himself or by a party.

(3) Objections to the calling of witnesses by the judge or to interrogation by him may be made at the time or at the next available opportunity when the jury is not present.

Source:Laws 1975, LB 279, § 47.

Annotations

A party’s right to cross-examine witnesses under subsection (1) of this section was not violated where there was no request by either party to question either witness or present additional evidence and the court gave no indication that such a request would be denied. Torres v. Morales, 287 Neb. 587, 843 N.W.2d 805 (2014).

Subsection (2) of this section provides that the trial judge may interrogate witnesses, whether called by the judge or by a party; however, the trial judge should use this right sparingly. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).

Under the provisions of this section, the trial judge may interrogate witnesses, whether called by himself or by a party; objections to questions propounded by the court must be made at the time of trial. State v. Fix, 219 Neb. 674, 365 N.W.2d 471 (1985).

The right of a judge to interrogate a witness should be very sparingly exercised because, generally, counsel for the parties should be relied on and allowed to manage and bring out their own case, and at no time should the actions of the judge in this respect be such as to warrant any assertion that they were with a view to assistance of the one or the other party to the cause. State v. Brehmer, 211 Neb. 29, 317 N.W.2d 885 (1982).

Trial court did not err in failing to allow party to cross-examine witness following interrogation by judge where that party made no objection to record as made, and that party made no request to further interrogate witness. Baltes v. Hodges, 207 Neb. 740, 301 N.W.2d 92 (1981).

A trial court may, on its own motion, call witnesses and interrogate witnesses pursuant to this section. Scudder v. Haug, 201 Neb. 107, 266 N.W.2d 232 (1978).

Trial court erred in failing to allow party to cross-examine witness following interrogation by judge where counsel's request to examine or cross-examine any witnesses was denied. Hronek v. Brosnan, 20 Neb. App. 200, 823 N.W.2d 204 (2012).

Pursuant to subsection (1) of this section, a trial court must act impartially and not prejudicially in exercising the discretionary power given to judges under this section to call and to interrogate witnesses. Gernstein v. Allen, 10 Neb. App. 214, 630 N.W.2d 672 (2001).

27-615. Rule 615. Exclusion of witnesses; exceptions.

At the request of a party the judge shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and he may make the order on his own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.

Source:Laws 1975, LB 279, § 48.

Annotations

It is permissible for a law enforcement officer, who will also be called to testify, to be present during a trial, even where a sequestration order has been entered. State v. Freeman, 267 Neb. 737, 677 N.W.2d 164 (2004).

In an attorney disciplinary proceeding, the attorney's client who was also the complaining witness in the proceeding was an essential witness under subsection (3) of this section. State ex rel. NSBA v. Miller, 258 Neb. 181, 602 N.W.2d 486 (1999).

Sequestration order not violated by presence of State's psychiatrist who was not to be called as a witness at trial. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).

A psychiatrist or psychologist may be present in the courtroom in contravention of a sequestration order upon a showing that his or her presence is essential to the presentation of a party's case. State v. Jackson, 231 Neb. 207, 435 N.W.2d 893 (1989).

Defendant's request to sequester a witness who was the prosecutrix and victim, held properly denied under exception in subsection (3) hereof. State v. Eynon, 197 Neb. 734, 250 N.W.2d 658 (1977).

This section does not require a party to present evidence in order to show that a witness is essential. In re Interest of Gabriel B., 31 Neb. App. 21, 976 N.W.2d 206 (2022).

This section does not require that the witness have no other way to obtain the information needed except to be present in the courtroom. In re Interest of Gabriel B., 31 Neb. App. 21, 976 N.W.2d 206 (2022).

The general rule is that witnesses shall be excluded from a proceeding at the request of a party; this rule has certain exceptions, including a person whose presence is shown by a party to be essential to the presentation of its cause. In re Interest of Dennis W., 14 Neb. App. 827, 717 N.W.2d 488 (2006).

27-701. Rule 701. Opinion testimony by lay witnesses; when.

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

Source:Laws 1975, LB 279, § 49.

Annotations

1. Scope

2. Testimony permitted

3. Testimony not permitted

4. Miscellaneous

1. Scope

Because the credibility of witnesses is a determination within the province of the trier of fact, testimony that usurps that role is not helpful and thus is improper opinion testimony under this section and section 27-702. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

The abolition of the "ultimate issue rule" does not lower the bar so as to admit all opinions, because under this section and section 27-702, opinions must be helpful to the trier of fact. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

Under this section and section 27-702, opinion testimony, whether by a lay or expert witness, is permissible only if it is helpful to the trier of fact in making a determination of a fact in issue. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

Under this section and sections 27-403 and 27-702, a witness may not give an opinion as to a defendant's guilt or how the case should be decided, but, rather, must leave the conclusions to be drawn by the trier of fact, because such opinions are not helpful. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

Lay testimony should be excluded whenever the point is reached at which the trier of fact is being told that which it is entirely equipped to determine. State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).

Opinion testimony by a lay witness is generally admissible where it is necessary and advisable as an aid to the jury, but it should be excluded whenever the point is reached at which the trier of fact is being told that which it is itself entirely equipped to determine. Jershin v. Becker, 217 Neb. 645, 351 N.W.2d 48 (1984).

2. Testimony permitted

A police officer's testimony regarding the meanings of drug-related code words and jargon used by people involved in the distribution of crack cocaine could not be excluded in a prosecution for drug conspiracy on the basis it invaded the province of the jury. The officer's testimony was helpful, because the meanings of narcotics code words and phrases were not within the common understanding of most jurors, cyphering of the meaning and intent of cell phone calls involving the defendant was something the jury could not do without the interpretation of slang or code words used during the wiretapped calls, and there was proper foundation for the officer's testimony. State v. Russell, 292 Neb. 501, 874 N.W.2d 9 (2016).

Pursuant to this section, lay opinion is admissible to identify the substances in question in a drug prosecution. State v. Watson, 231 Neb. 507, 437 N.W.2d 142 (1989).

A person who is familiar with a signature may testify as to the validity of that signature. In re Estate of Villwok, 226 Neb. 693, 413 N.W.2d 921 (1987).

Parents and student may testify as to their opinion of best educative interest if rationally based on the perception of the witness and helpful to the determination of a fact in issue. In re Freeholder Petition, 213 Neb. 633, 330 N.W.2d 907 (1983).

A nonexpert with an intimate personal acquaintance may be allowed to testify as to the mental condition of a defendant pleading insanity. The jury may weigh and determine the credibility of the opinion testimony of a nonexpert witness as to the mental state of a defendant pleading insanity but the mere fact that the testimony is given by a nonexpert does not make it inadmissible if the witness had the necessary acquaintance with the defendant. State v. Myers, 205 Neb. 867, 290 N.W.2d 660 (1980).

3. Testimony not permitted

Under this section and sections 27-602 and 27-702, it is improper for a witness to testify whether another person may or may not have been telling the truth in a specific instance. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

This section does not permit a lay witness to render an opinion based upon obvious speculation or conjecture. Childers v. Phelps County, 252 Neb. 945, 568 N.W.2d 463 (1997).

Testimony of deputy sheriff was improper lay expert opinion regarding credibility of witness. State v. Beermann, 231 Neb. 380, 436 N.W.2d 499 (1989).

Opinion evidence by lay witness as to whether defendant in motor vehicle homicide case caused the collision was intended to decide the issue of causation for the jury, and thus was inadmissible under this section. The lay witness' function is only to describe what he or she has observed, and the trier of fact will draw a conclusion from the facts observed and reproduced by the witness. State v. William, 231 Neb. 84, 435 N.W.2d 174 (1989).

The mere odor of alcohol, standing alone, is not sufficient to justify either a lay witness or an expert rendering an opinion as to whether one is intoxicated in violation of law. State v. Johnson, 215 Neb. 391, 338 N.W.2d 769 (1983).

Opinion of police officer witness as to speed of vehicles involved in collision, where opinion based solely on fact of collision, and where witness did not see the collision and was not qualified as an expert, not admissible under this section because not rationally based on the perception of the witness. Belitz v. Suhr, 208 Neb. 280, 303 N.W.2d 284 (1981).

4. Miscellaneous

A defendant doctor's testimony was not hearsay, because it was limited only to his perception of another treating doctor's opinion, rather than providing the actual content of the other treating doctor's out-of-court statement. The defendant doctor had firsthand knowledge of the other treating doctor's statement, his belief as to the opinion was an inference that was rationally based on the context, and the testimony was helpful to an ultimate issue. Rodriguez v. Surgical Assocs., 298 Neb. 573, 905 N.W.2d 247 (2018).

The trial court is given discretion in determining whether a sufficient basis for a lay witness' opinion testimony has been established and such determination will not ordinarily be disturbed on appeal absent an abuse of that discretion. Harmon Cable Communications v. Scope Cable Television, 237 Neb. 871, 468 N.W.2d 350 (1991).

Any error in allowing a police technician to give a lay opinion as to what substances were located in the area of an assault victim was harmless in light of victim's eyewitness identification of the defendant. State v. Broomhall, 221 Neb. 27, 374 N.W.2d 845 (1985).

A trial court has great discretion to determine the qualification of a witness to state an opinion and will be reversed only for an abuse of that discretion. A witness may be qualified to give an opinion based upon managerial experience even without practical, personal experience. Schmidt v. J. C. Robinson Seed Co., 220 Neb. 344, 370 N.W.2d 103 (1985).

Lay witness opinion testimony concerning the identity of a person depicted in a photograph or video is admissible if there is evidence that the witness is better able to correctly identify the contents of the photograph or video than the jury. State v. Hickey, 27 Neb. App. 516, 933 N.W.2d 891 (2019).

27-702. Rule 702. Testimony by experts; when.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Source:Laws 1975, LB 279, § 50.

Annotations

1. When evidence is admissible

2. Evidence allowed

3. Trial court discretion

4. Miscellaneous

1. When evidence is admissible

When a court is faced with a decision regarding the admissibility of expert opinion evidence, the trial judge must determine at the outset, pursuant to the evidence rule governing expert witness testimony, whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. Pitts v. Genie Indus., 302 Neb. 88, 921 N.W.2d 597 (2019).

Because the credibility of witnesses is a determination within the province of the trier of fact, testimony that usurps that role is not helpful and thus is improper opinion testimony under section 27-701 and this section. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

The abolition of the "ultimate issue rule" does not lower the bar so as to admit all opinions, because under section 27-701 and this section, opinions must be helpful to the trier of fact. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

Under section 27-701 and this section, opinion testimony, whether by a lay or expert witness, is permissible only if it is helpful to the trier of fact in making a determination of a fact in issue. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

Under this section and sections 27-403 and 27-701, a witness may not give an opinion as to a defendant's guilt or how the case should be decided, but, rather, must leave the conclusions to be drawn by the trier of fact, because such opinions are not helpful. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

Under this section and sections 27-602 and 27-701, it is improper for a witness to testify whether another person may or may not have been telling the truth in a specific instance. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

A trial court can consider several nonexclusive factors in determining the reliability of an expert's opinion: (1) whether a theory or technique can be (and has been) tested; (2) whether it has been subjected to peer review and publication; (3) whether, in respect to a particular technique, there is a high known or potential rate of error; (4) whether there are standards controlling the technique's operation; and (5) whether the theory or technique enjoys general acceptance within a relevant scientific community. State v. Braesch, 292 Neb. 930, 874 N.W.2d 874 (2016).

Absent evidence that an expert's testimony grows out of the expert's own prelitigation research or that an expert's research has been subjected to peer review, experts must show that they reached their opinions by following an accepted method or procedure as it is practiced by others in their field. State v. Braesch, 292 Neb. 930, 874 N.W.2d 874 (2016).

Before admitting expert opinion testimony under this section, a trial court must determine whether the expert's knowledge, skill, experience, training, and education qualify the witness as an expert. If an expert's opinion involves scientific or specialized knowledge, a trial court must determine whether the reasoning or methodology underlying the testimony is valid (reliable). It must also determine whether that reasoning or methodology can be properly applied to the facts in issue. State v. Braesch, 292 Neb. 930, 874 N.W.2d 874 (2016).

To be admissible, an expert's opinion must be based on good grounds, not mere subjective belief or unsupported speculation. A trial court should not require absolute certainty in an expert's opinion, but it has discretion to exclude expert testimony if an analytical gap between the data and the proffered opinion is too great. State v. Braesch, 292 Neb. 930, 874 N.W.2d 874 (2016).

Fundamentally, it is always the burden of the proponent of the evidence to establish the necessary foundation for its admission, including its scientific reliability under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001). State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010).

A trial court should admit expert testimony if there are good grounds for the expert's conclusion notwithstanding the judge's belief that there are better grounds for some alternative conclusion. King v. Burlington Northern Santa Fe Ry. Co., 277 Neb. 203, 762 N.W.2d 24 (2009).

Absent evidence that an expert's testimony grows out of the expert's own prelitigation research or that an expert's research has been subjected to peer review, experts must show that they reached their opinions by following an accepted scientific method or procedure as it is practiced by others in their field. King v. Burlington Northern Santa Fe Ry. Co., 277 Neb. 203, 762 N.W.2d 24 (2009).

An expert's opinion must be based on good grounds, not mere subjective belief or unsupported speculation. "Good grounds" mean an inference or assertion derived by scientific method and supported by appropriate validation. King v. Burlington Northern Santa Fe Ry. Co., 277 Neb. 203, 762 N.W.2d 24 (2009).

Before admitting expert opinion testimony, a trial court must determine whether the expert's knowledge, skill, experience, training, and education qualify the witness as an expert. If the opinion involves scientific or specialized knowledge, trial courts must also determine whether the reasoning or methodology underlying the expert's opinion is scientifically valid. King v. Burlington Northern Santa Fe Ry. Co., 277 Neb. 203, 762 N.W.2d 24 (2009).

If the data underlying an expert's opinion involving scientific or specialized knowledge are so lacking in probative force and reliability that no reasonable expert could base an opinion on them, an opinion which rests entirely upon them must be excluded. King v. Burlington Northern Santa Fe Ry. Co., 277 Neb. 203, 762 N.W.2d 24 (2009).

In determining the admissibility of an expert's opinion, the court must focus on the validity of the underlying principles and methodology— not the conclusions that they generate. King v. Burlington Northern Santa Fe Ry. Co., 277 Neb. 203, 762 N.W.2d 24 (2009).

The relevant factors for assessing the reliability or scientific validity of an expert's opinion are whether (1) the theory or technique can be, or has been, tested; (2) the theory or technique has been subjected to peer review and publication; (3) there is a known or potential rate of error; (4) there are standards controlling the technique's operation; and (5) the theory or technique enjoys general acceptance within the relevant scientific community. King v. Burlington Northern Santa Fe Ry. Co., 277 Neb. 203, 762 N.W.2d 24 (2009).

Under the framework set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), the proponent of expert testimony must establish by a preponderance of the evidence that (1) the reasoning or methodology underlying an expert's testimony is scientifically valid and (2) the reasoning or methodology can be properly applied to the facts. King v. Burlington Northern Santa Fe Ry. Co., 277 Neb. 203, 762 N.W.2d 24 (2009).

Expert witness's background and research provided sufficient foundation for her opinion despite her statement that her opinion was her "best guess." Orchard Hill Neighborhood v. Orchard Hill Mercantile, 274 Neb. 154, 738 N.W.2d 820 (2007).

Under this section, a witness can testify concerning scientific, technical, or other specialized knowledge only if the witness is qualified as an expert. Jackson v. Brotherhood's Relief & Comp. Fund, 273 Neb. 1013, 734 N.W.2d 739 (2007).

An expert's opinion is ordinarily admissible under this section if the witness (1) qualifies as an expert, (2) has an opinion that will assist the trier of fact, (3) states his or her opinion, and (4) is prepared to disclose the basis of that opinion on cross-examination. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007); State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006); In re Interest of Aly T. & Kazlynn T., 26 Neb. App. 612, 921 N.W.2d 856 (2018).

In a bench trial, an expert's testimony will be admitted under Neb. Evid. R. 702 and given the weight to which it is entitled. City of Lincoln v. Realty Trust Group, 270 Neb. 587, 705 N.W.2d 432 (2005).

A trial court's evaluation of the admissibility of expert opinion testimony is essentially a four-step process. The court must first determine whether the witness is qualified to testify as an expert. It must examine whether the witness is qualified as an expert by his or her knowledge, skill, experience, training, and education. If it is necessary for the court to conduct an analysis under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), then the court must determine whether the reasoning or methodology underlying the expert testimony is scientifically valid and reliable. To aid the court in its evaluation, the judge may consider several factors, including, but not limited to, whether the reasoning or methodology has been tested and has general acceptance within the relevant scientific community. Once the reasoning or methodology has been found to be reliable, the court must determine whether the methodology can properly be applied to the facts in issue. In making this determination, the court may examine the evidence to determine whether the methodology was properly applied and whether the protocols were followed to ensure that the tests were performed properly. Finally, the court determines whether the expert evidence and the opinions related thereto are more probative than prejudicial, as required under Neb. Evid. R. 403, section 27-403. State v. Tolliver, 268 Neb. 920, 689 N.W.2d 567 (2004).

An expert does not need to have additional expertise in the science or theory underlying instruments used in his or her field; that the expert is trained to operate a device is sufficient foundation for admitting evidence produced by the device. State v. Aguilar, 268 Neb. 411, 683 N.W.2d 349 (2004).

Expert testimony is admissible if it assists the trier of fact to understand the evidence or to determine a fact in issue. State v. Buechler, 253 Neb. 727, 572 N.W.2d 65 (1998).

In determining whether an expert's testimony is admissible, a court considers four preliminary and interrelated questions: (1) Whether the witness qualifies as an expert pursuant to this section; (2) whether the expert's testimony is relevant; (3) whether the expert's testimony assists the trier of fact to understand the evidence or determine a controverted factual issue; and (4) whether the expert's testimony, even though relevant and admissible, should be excluded under section 27-403 because its probative value is substantially outweighed by the danger of unfair prejudice or other considerations. Robinson v. Bleicher, 251 Neb. 752, 559 N.W.2d 473 (1997).

There are four questions a court considers to determine the admissibility of expert testimony: (1) Does the witness qualify as an expert pursuant to this section? (2) Is the expert's testimony relevant? (3) Will the expert's testimony assist the trier of fact to understand the evidence or to determine a controverted factual issue? (4) Should the expert's testimony, even though relevant and admissible, be excluded in light of section 27-403? State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996).

Expert testimony which may be of assistance to the trier of fact is admissible even in areas where laypersons have competence to determine the facts. Coppi v. West Am. Ins. Co., 247 Neb. 1, 524 N.W.2d 804 (1994).

Expert testimony concerning a question of law is generally not admissible in evidence. Schmidt v. Omaha Pub. Power Dist., 245 Neb. 776, 515 N.W.2d 756 (1994).

If an expert's testimony lacks probative value, the testimony is irrelevant and is inadmissible. In determining admissibility of an expert's testimony, a court considers four questions: (1) Does the witness qualify as an expert? (2) Is the testimony relevant? (3) Will the testimony assist the trier of fact to understand the evidence or determine a controverted factual issue? (4) Should the testimony, even if relevant and admissible, be excluded in light of section 27-403? Relevance of an opinion is among the initial questions for a trial court in determining admissibility of an expert's opinion under this section. Reliability of an expert's testimony which is based on a scientific principle or on a technique or process which applies a scientific principle depends on general acceptance of the principle, technique, or process in the relevant scientific community. Under the standard of helpfulness required by this section, a court may exclude an expert's opinion which is nothing more than an expression of how the trier of fact should decide a case or what result should be reached on any issue to be resolved by the trier of fact. When an expert's opinion on a disputed issue is a conclusion which may be deduced equally as well by the trier of fact with sufficient evidence on the issue, the expert's opinion is superfluous and does not assist the trier in understanding the evidence or determining a factual issue. Whether a witness is an expert depends on the factual basis or reality behind a witness's title or underlying a witness's claim to expertise. Whether a witness is qualified to testify as an expert under this section is a preliminary question of admissibility for a trial court under section 27-104(1). State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).

The first question to be answered by a court considering admissibility of expert testimony under this section is whether the testimony is likely to assist the trier of fact; if the testimony will not be of assistance to the jury in its deliberations and relates to an area within the competency of ordinary citizens, the expert testimony is not admissible. Getzschman v. Miller Chemical Co., 232 Neb. 885, 443 N.W.2d 260 (1989).

Evidence of a test result cannot be characterized as "scientific" or qualify as "technical or other specialized knowledge," and thus within the purview of this provision, unless and until it is established that the test result demonstrates what it is claimed to demonstrate. State v. Borchardt, 224 Neb. 47, 395 N.W.2d 551 (1986).

Expert testimony should not be received if it appears the witness is not in possession of such facts as will enable him to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture. The witness should not be allowed to express an opinion on an inadequate basis or in respect to facts not disclosed to the jury. Priest v. McConnell, 219 Neb. 328, 363 N.W.2d 173 (1985).

Expert testimony which may be of assistance to the trier of fact is admissible even in areas where laymen have competence to determine the facts. Hegarty v. Campbell Soup Co., 214 Neb. 716, 335 N.W.2d 758 (1983).

The general rule is that expert testimony is admissible only if it will be of assistance to the jury in its deliberations and relates to an area not within the competency of ordinary citizens. State v. Ammons, 208 Neb. 812, 305 N.W.2d 812 (1981).

Before an expert opinion can be rendered, it must be shown that such an opinion is based upon scientific, technical, or other specialized knowledge which would assist the trier of fact to understand the evidence or to determine a fact in issue, and that the witness qualifies as an expert by reason of knowledge, skill, experience, training, or education. Northern Nat. Gas Co. v. Beech Aircraft Corp., 202 Neb. 300, 275 N.W.2d 77 (1979).

Whether one qualifies as an expert depends on the factual basis or reality underlying the witness's title or claim to expertise. The standard of care is not based on the title of the physician, but, rather, on the substance of the treatment. Testimony of qualified medical doctors cannot be excluded simply because they are not specialists in a particular school of medical practice. Instead, experts or skilled witnesses will be considered qualified if, and only if, they possess special skill or knowledge respecting the subject matter involved so superior to that of persons in general as to make the expert's formation of a judgment a fact of probative value. Hoffart v. Hodge, 9 Neb. App. 161, 609 N.W.2d 397 (2000).

2. Evidence allowed

In a trial for attempted murder, assault, and other crimes, the State's forensic expert was qualified to testify regarding gunshot residue found on the defendant's clothing, despite the fact that the expert did not have personal knowledge regarding the manner in which calibration substances or standards were manufactured; rather, it was enough that the expert was trained on gunshot residue testing and was qualified to accurately perform the tests. State v. Aguilar, 268 Neb. 411, 683 N.W.2d 349 (2004).

The testimony of a guardian ad litem in a custody modification proceeding was erroneously admitted as expert testimony when there was no showing she possessed any scientific, technical, or other specialized knowledge which would assist the trier of fact to understand the evidence or determine a fact in issue. Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d 541 (2004).

Trial court did not err in allowing police officer to testify as to how long THC remains in a person's system where the officer possessed extensive experience in the area of illegal narcotics and had received specific training in drug testing processes from a qualified examiner. Trial court did not err in allowing police officer to testify that a substance was marijuana where the officer had received approximately 20 hours of training in drug identification and illegal drugs and 100 hours of additional instruction in criminal investigation and evidence, the officer was experienced in undercover drug investigations and other drug control efforts, and his testimony was corroborated by a forensic chemist. State v. Stahl, 240 Neb. 501, 482 N.W.2d 829 (1992).

An architect's assessment that sidewalks are safer to walk on than grass is not the kind of determination which requires special skill, knowledge, or experience to make, as contemplated by this provision. Johannes v. McNeil Real Estate Fund VIII, 225 Neb. 283, 404 N.W.2d 424 (1987).

Testimony by a criminal investigator concerning fingerprints found at the scene of the crime is admissible, when relevant, as expert testimony. State v. Birge, 223 Neb. 761, 393 N.W.2d 713 (1986).

Remarks by the treating physician to the effect that the causes of aneurysmal bone cyst recurrences were largely unknown did not make his expert opinion as to the cause underlying plaintiff's recurrence inadmissible; the remarks were available for impeachment and were properly weighed by the trier of fact. Goers v. Bud Irons Excavating, 207 Neb. 579, 300 N.W.2d 29 (1980).

For a qualified expert to give an opinion of the speed of a vehicle, all necessary factors needed to establish an opinion should be supported by evidence. Nickal v. Phinney, 207 Neb. 281, 298 N.W.2d 360 (1980).

Self-styled retired burglar permitted to testify for State as expert for opinion on utility of articles in possession of defendant when apprehended. State v. Briner, 198 Neb. 766, 255 N.W.2d 422 (1977).

Auto manufacturer's expert witness entitled to present illustrative experiment and to testify regarding an ultimate issue of fact. Shover v. General Motors Corp., 198 Neb. 470, 253 N.W.2d 299 (1977).

Sufficient foundation existed for a doctor's expert opinion in his affidavit that a nursing home's actions or inactions did not cause a resident's injuries and subsequent death, so that the opinion could be considered by the trial court when deciding a motion for summary judgment where the affidavit and attached curriculum vitae established that the doctor, board certified in family and geriatric medicine, had regularly cared for residents of assisted living facilities and was qualified to evaluate the cause of injuries and death. Apkan v. Life Care Centers of America, 26 Neb. App. 154, 918 N.W.2d 601 (2018).

The trial court's admission of testimony by banker as expert witness regarding security agreement was not an abuse of discretion. Skiles v. Security State Bank, 1 Neb. App. 360, 494 N.W.2d 355 (1992).

3. Trial court discretion

In a bench trial, a trial court is not required to conclusively determine whether an expert's opinion is reliable before admitting the expert's testimony, because the court is not shielding the jury from unreliable evidence. The court has discretion to admit a qualified expert's opinion subject to its later determination after hearing further evidence that the opinion is unreliable and should not be credited. State v. Braesch, 292 Neb. 930, 874 N.W.2d 874 (2016).

A trial court does not have discretion to permit a witness who has not been qualified as an expert to testify to issues that require an expert’s opinion. Simon v. Drake, 285 Neb. 784, 829 N.W.2d 686 (2013).

A trial court, when faced with an objection under Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), must adequately demonstrate by specific findings on the record that it has performed the gatekeeping duty imposed by this section. A trial court adequately demonstrates that it has performed its gatekeeping duty when the record shows (1) the court's conclusion whether the expert's opinion is admissible and (2) the reasoning the court used to reach that conclusion, specifically noting the factors bearing on reliability that the court relied on in reaching its determination. Zimmerman v. Powell, 268 Neb. 422, 684 N.W.2d 1 (2004).

An appellate court reviews the record de novo to determine whether a trial court has abdicated the gatekeeping function imposed by this section; when the trial court has not abdicated its gatekeeping function, an appellate court reviews the trial court's decision to admit or exclude the evidence for an abuse of discretion. Zimmerman v. Powell, 268 Neb. 422, 684 N.W.2d 1 (2004).

In performing its gatekeeping duty, the trial court's discretion extends to deciding what factors are reasonable measures of reliability in each case. Zimmerman v. Powell, 268 Neb. 422, 684 N.W.2d 1 (2004).

The trial court does not have the discretion to abdicate its gatekeeping duty imposed by this section. Zimmerman v. Powell, 268 Neb. 422, 684 N.W.2d 1 (2004).

In performing its gatekeeping duty, the trial court has considerable discretion in deciding what procedures to use in determining if an expert's testimony satisfies. Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).

When a court is faced with a decision regarding the admissibility of expert opinion evidence, the trial judge must determine at the outset, pursuant to this section, whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology properly can be applied to the facts in issue. Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).

The trial court initially determines whether expert testimony will assist the trier of fact. Ketteler v. Daniel, 251 Neb. 287, 556 N.W.2d 623 (1996).

When a trial court is faced with an offer of a novel form of expertise, the trial court must determine whether the new technique or principle is sufficiently reliable. Evidence of a test result cannot be characterized as "scientific" or "technical" until it is established that the test result demonstrates what it claimed to demonstrate. State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994).

A trial court's ruling in receiving or excluding an expert's testimony which is otherwise relevant will be reversed only when there has been an abuse of discretion. McDonald v. Miller, 246 Neb. 144, 518 N.W.2d 80 (1994).

No exact standard is possible for fixing the qualifications of an expert or skilled witness, who will be deemed qualified if, and only if, he or she possesses special skill or knowledge respecting the subject matter involved so superior to that of men in general as to make his or her formation of a judgment a fact of probative value. A trial court's factual finding that a witness qualifies as an expert will be upheld on appeal unless clearly erroneous. Brown v. Farmers Mut. Ins. Co., 237 Neb. 855, 468 N.W.2d 105 (1991).

A trial court's factual finding pursuant to section 27-104(1) concerning a determination whether a witness qualifies as an expert under this section will be upheld on appeal unless clearly erroneous. The determination whether an expert's testimony or opinion will be helpful to a jury or assist the trier of fact involves the discretion of a trial court, whose ruling will be upheld on appeal unless the court abused its discretion. State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).

Absent an abuse of discretion, a trial judge's ruling regarding the admissibility of expert testimony will not be reversed. Palmer v. Forney, 230 Neb. 1, 429 N.W.2d 712 (1988).

It is within the trial court's discretion to determine whether there is sufficient foundation for an expert witness to give his opinion about an issue in question. Edwards v. Mount Moriah Missionary Baptist Church, 21 Neb. App. 896, 845 N.W.2d 595 (2014).

A trial court adequately demonstrates that it has performed its gatekeeping duty in determining the reliability of expert testimony when the record shows (1) the court's conclusion whether the expert's opinion is admissible and (2) the reasoning the court used to reach that conclusion, specifically noting the factors bearing on reliability that the court relied on in reaching its determination. Kirkwood v. State, 16 Neb. App. 459, 748 N.W.2d 83 (2008).

The mental health board did not abuse its discretion in receiving the opinion of a licensed psychologist on the subject's mental health when the psychologist evaluated the subject, qualified as an expert, and had an opinion which would assist the board. In re Interest of Michael U., 14 Neb. App. 918, 720 N.W.2d 403 (2006).

There is no exact standard for determining when one qualifies as an expert, and a trial court's factual finding that a witness qualifies as an expert will be upheld on appeal unless clearly erroneous. It is within the trial court's discretion to determine if there is sufficient foundation for a witness to give his or her opinion about an issue in question. A trial court's ruling in receiving or excluding an expert's opinion which is otherwise relevant will be reversed only when there has been an abuse of discretion. Hoffart v. Hodge, 9 Neb. App. 161, 609 N.W.2d 397 (2000).

4. Miscellaneous

In a bench trial, an expert's testimony will be admitted and given the weight to which it is entitled. Reiber v. County of Gage, 303 Neb. 325, 928 N.W.2d 916 (2019).

The trial court erred in permitting the plaintiff’s treating physician to testify against the plaintiff in a medical malpractice case when the physician had not been qualified as an expert. The ruling allowed the physician to provide expert testimony while denying the plaintiff an opportunity to discover facts related to the physician’s qualifications and the data underlying his opinions. The error was not harmless because jurors were likely to give more weight to the plaintiff’s own treating physician testifying against him. Simon v. Drake, 285 Neb. 784, 829 N.W.2d 686 (2013).

The horizontal gaze nystagmus test involves scientific knowledge and falls generally under the rules of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001). State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010).

To sufficiently call specialized knowledge into question under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), is to object with enough specificity so that the court understands what is being challenged and can accordingly determine the necessity and extent of any pretrial proceeding. State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010).

Trial courts are not required to delve into every possible error in the data underlying an expert's opinion involving scientific or specialized knowledge unless it is raised by the party opposing the admission of the expert's opinion. King v. Burlington Northern Santa Fe Ry. Co., 277 Neb. 203, 762 N.W.2d 24 (2009).

The first portion of analysis under Daubert v. Merrell Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), establishes the standard of reliability; the second portion assesses whether the scientific evidence will assist the trier of fact to understand the evidence or determine a fact in issue by providing a valid scientific connection to the pertinent inquiry as a precondition to admissibility. McNeel v. Union Pacific RR. Co., 276 Neb. 143, 753 N.W.2d 321 (2008).

Under the analysis in Daubert v. Merrell Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), expert testimony lacks "fit" when a large analytical leap must be made between the facts and the opinion. McNeel v. Union Pacific RR. Co., 276 Neb. 143, 753 N.W.2d 321 (2008).

Neb. Evid. R. 702 is part of a statutory scheme that governs the admissibility at trial of expert opinion testimony regarding the value of real estate. City of Lincoln v. Realty Trust Group, 270 Neb. 587, 705 N.W.2d 432 (2005).

The objective of the gatekeeping responsibility imposed by this section is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Schafersman v. Agland Coop, 268 Neb. 138, 681 N.W.2d 47 (2004).

It is not enough for the trial court to determine that an expert's methodology is valid in the abstract. The trial court must also determine if the witness has applied the methodology in a reliable manner. Carlson v. Okerstrom, 267 Neb. 397, 675 N.W.2d 89 (2004).

It is not enough that a witness is qualified as an expert. The trial court must also act as a gatekeeper to ensure the evidentiary relevance and reliability of the expert's opinion. Carlson v. Okerstrom, 267 Neb. 397, 675 N.W.2d 89 (2004).

For trials commencing on or after October 1, 2001, in trial proceedings, the admissibility of expert opinion testimony under the Nebraska rules of evidence should be determined based upon the standards first set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).

This section provides the requirements for admission of expert opinion testimony. Gittins v. Scholl, 258 Neb. 18, 601 N.W.2d 765 (1999).

The trial court erred in admitting the expert testimony of an economist on the issue of hedonic damages, as the economist did not qualify as an expert pursuant to this section. Anderson/Couvillon v. Nebraska Dept. of Soc. Servs., 248 Neb. 651, 538 N.W.2d 732 (1995).

Trial court erred in permitting police officer to testify as to administration of his various interrogation techniques. State v. Welch, 241 Neb. 699, 490 N.W.2d 216 (1992).

All conflicts in the evidence, expert or lay, and the credibility of the witnesses are for the jury and not the Supreme Court on review. Palmer v. Forney, 230 Neb. 1, 429 N.W.2d 712 (1988).

An allegation that an expert offered false testimony will not be sustained on a mere difference of expert opinion, and where opinion evidence of experts is in conflict, it becomes a question for the jury. Palmer v. Forney, 230 Neb. 1, 429 N.W.2d 712 (1988).

The determination of the truthfulness or accuracy of an expert's conclusions is for the jury. Palmer v. Forney, 230 Neb. 1, 429 N.W.2d 712 (1988).

Under these provisions, it is no longer necessary to have formal training in order to be considered as an expert witness; actual practical experience in the field can also qualify one as an expert in that field. State v. Hoxworth, 218 Neb. 647, 358 N.W.2d 208 (1984).

Under sections 27-702 and 27-705, an expert witness, qualified to be such, may testify in terms of opinion or inference without prior disclosure of underlying facts or data, the weight of such evidence being for the trier of facts. State v. Journey, 201 Neb. 607, 271 N.W.2d 320 (1978).

Possible modification of rule relating to opinion of investigator as to point of impact discussed but not applied retrospectively. Rawlings v. Andersen, 195 Neb. 686, 240 N.W.2d 568 (1976).

The trial court's admission of a doctor's testimony regarding "grooming" in a sexual assault of a child case, without performing its gatekeeping function under the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), framework, was prejudicial error. State v. Edwards, 28 Neb. App. 893, 949 N.W.2d 799 (2020).

An individual's summary judgment affidavit was not sufficient to meet the requirements to qualify him as an expert in regard to whether a roofing contractor's repairs were defective; the affidavit failed to set forth sufficient foundation for his opinion, because he included no references to his occupation, training, experience, qualifications, or education, and he failed to accurately describe the property he inspected and the methodology he employed during such inspection. Edwards v. Mount Moriah Missionary Baptist Church, 21 Neb. App. 896, 845 N.W.2d 595 (2014).

A medical expert's testimony concerning causes of the plaintiff's multiple myeloma was properly excluded. King v. Burlington Northern Santa Fe Ry. Co., 16 Neb. App. 544, 746 N.W.2d 383 (2008).

No analysis pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), is necessary where the party asserting error does not challenge the scientific validity and reliability of the guidelines set forth in the Manual on Uniform Traffic Control Devices. Kirkwood v. State, 16 Neb. App. 459, 748 N.W.2d 83 (2008).

A person appointed as guardian ad litem is not necessarily an expert on child welfare. The primary function of a guardian ad litem's report is for the guardian to demonstrate to the judge that the guardian has performed his or her duty. When a guardian ad litem's report does not contain objectionable hearsay, it is an efficient means of communicating the facts that the guardian has learned to the parties and to the judge, if properly admitted into evidence, but a report is not somehow made admissible because it was prepared by a guardian ad litem appointed by a court pursuant to a statute. Hearsay within such reports remains hearsay. Joyce S. v. Frank S., 6 Neb. App. 23, 571 N.W.2d 801 (1997).

In a prosecution for sexual assault of a child, an expert witness may not give testimony which directly or indirectly expresses an opinion that the child is believable, that the child is credible, or that the witness' account has been validated. State v. Doan, 1 Neb. App. 484, 498 N.W.2d 804 (1993).

27-703. Rule 703. Bases of opinion testimony by experts; when revealed; admissibility.

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Source:Laws 1975, LB 279, § 51.

Annotations

1. Scope

2. Miscellaneous

1. Scope

This section contemplates admission of an expert's opinion based on hearsay supplying the facts or data for that opinion, rather than requiring firsthand knowledge as the only source of information for an expert's opinion. State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002).

Under this section, an expert may rely on hearsay facts or data reasonably relied upon by experts in that field. The admission into evidence of an expert's appraisal report was prejudicial error. State Dept. of Roads v. Whitlock, 262 Neb. 615, 634 N.W.2d 480 (2001).

An expert is allowed to base his or her opinion on data obtained before the hearing at which the expert is to testify. Gittins v. Scholl, 258 Neb. 18, 601 N.W.2d 765 (1999).

An expert medical witness may base an opinion on the medical records of another treating doctor when the records are of a type reasonably relied upon by experts in the particular field. The mere fact that an expert relied on medical records, however, does not transform those records from inadmissible hearsay to admissible evidence. Vacanti v. Master Electronics Corp., 245 Neb. 586, 514 N.W.2d 319 (1994).

Experts may rely on hearsay facts or data reasonably relied upon by experts in the field as a basis for their opinion. Brown v. Farmers Mut. Ins. Co., 237 Neb. 855, 468 N.W.2d 105 (1991).

An expert may express an opinion in answering a hypothetical question, if the question and the opinion are based upon facts "perceived by or made known to him." Bernadt v. Suburban Air, Inc., 221 Neb. 537, 378 N.W.2d 852 (1985).

Generally, an expert witnesses' firsthand knowledge is a factor which may affect such witness' credibility and weight given to the testimony from such expert, but presence or absence of firsthand knowledge does not, by itself, necessarily establish preference or priority in evidentiary value. Gibson v. City of Lincoln, 221 Neb. 304, 376 N.W.2d 785 (1985).

An expert may base an opinion upon the otherwise inadmissible patient records of another treating doctor since the records are a type reasonably relied upon by experts in the particular field. Clark v. Clark, 220 Neb. 771, 371 N.W.2d 749 (1985).

Expert testimony should not be received if it appears the witness is not in possession of such facts as will enable him to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture. State v. Johnson, 215 Neb. 391, 338 N.W.2d 769 (1983).

2. Miscellaneous

The defendant doctor could testify to the opinion of another treating doctor to demonstrate the basis for his own opinion. Rodriguez v. Surgical Assocs., 298 Neb. 573, 905 N.W.2d 247 (2018).

When an assumption used by an expert is not proved untrue or to be without any basis in fact, whether the stated grounds for the assumption are credible is a jury question. Gary's Implement v. Bridgeport Tractor Parts, 281 Neb. 281, 799 N.W.2d 249 (2011).

In a hearing concerning an evaluation and treatment plan in a commitment proceeding, a report by a doctor did not constitute inadmissible hearsay. State v. Hayden, 233 Neb. 211, 444 N.W.2d 317 (1989).

The mere odor of alcohol, standing alone, is not sufficient to justify either a lay witness or an expert rendering an opinion as to whether one is intoxicated in violation of law. State v. Johnson, 215 Neb. 391, 338 N.W.2d 769 (1983).

Possible modification of rule relating to opinion of investigator as to point of impact discussed but not applied retrospectively. Rawlings v. Andersen, 195 Neb. 686, 240 N.W.2d 568 (1976).

27-704. Rule 704. Opinion on ultimate issue.

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

Source:Laws 1975, LB 279, § 52.

Annotations

This section abolished the "ultimate issue" rule in Nebraska. Reiber v. County of Gage, 303 Neb. 325, 928 N.W.2d 916 (2019).

Under this section, a witness may not give an opinion as to how the case should be decided, but, rather, must leave the conclusions to be drawn by the trier of fact, because such opinions are not helpful. Reiber v. County of Gage, 303 Neb. 325, 928 N.W.2d 916 (2019).

Under this section, the basic approach to opinions, lay and expert, is to admit them when helpful to the trier of fact. Reiber v. County of Gage, 303 Neb. 325, 928 N.W.2d 916 (2019).

The "ultimate issue rule," which prohibited witnesses from giving opinions or conclusions on an ultimate fact in issue because such testimony, it was believed, usurps the function or invades the province of the jury, was abolished in Nebraska by this section. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

Under this section, the basic approach to opinions, lay and expert, is to admit them when helpful to the trier of fact. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

An otherwise admissible expert's opinion is not objectionable because the opinion embraces an ultimate issue to be decided by the trier of fact. State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990); State v. Rotella, 196 Neb. 741, 246 N.W.2d 74 (1976).

This section must be read in conjunction with sections 27-702, and 27-401 to 27-403, for this section does not render all expert testimony admissible. Under this section, the test is not whether the expert's opinion or inference invades the province of the jury, but whether the opinion or inference is otherwise admissible and will assist the trier of fact to understand the evidence or determine a fact in issue under section 27-702. State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).

Auto manufacturer's expert witness entitled to present illustrative experiment and to testify regarding an ultimate issue of fact. Shover v. General Motors Corp., 198 Neb. 470, 253 N.W.2d 299 (1977).

Possible modification of rule relating to opinion of investigator as to point of impact discussed but not applied retrospectively. Rawlings v. Andersen, 195 Neb. 686, 240 N.W.2d 568 (1976).

27-705. Rule 705. Disclosure of facts or data underlying expert opinion.

The expert may testify in terms of opinion or inference and give reasons therefor without prior disclosure of the underlying facts or data, unless the judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Source:Laws 1975, LB 279, § 53; Laws 1982, LB 716, § 2.

Annotations

1. Testimony admissible

2. Testimony not admissible

3. Miscellaneous

1. Testimony admissible

This section permits admission of an expert opinion without prior disclosure of the underlying facts upon which the expert's opinion is based. An expert's opinion is ordinarily admissible if the witness (1) qualifies as an expert, (2) has an opinion that will assist the trier of fact, (3) states his or her opinion, and (4) is prepared to disclose the basis of that opinion on cross-examination. Gittins v. Scholl, 258 Neb. 18, 601 N.W.2d 765 (1999).

Under this section, an expert can be required to disclose on cross-examination the facts or data underlying his or her opinion; thus, an expert may be cross-examined for the purposes of testing and inquiring into the basis for his or her opinion. State v. Hankins, 232 Neb. 608, 441 N.W.2d 854 (1989).

Statute requires expert to disclose underlying facts and data if required by court but does not require court to allow testimony of all such facts and data. Expert may rely on factors not otherwise admissible, but such reliance will not affect their admissibility. Clearwater Corp. v. City of Lincoln, 207 Neb. 750, 301 N.W.2d 328 (1981).

A witness with experience in testing the type of metal from which a surgical instrument was made but not in testing surgical instruments as such, was qualified to give an opinion as an expert witness about the cause of a break in the surgical instrument. Danielsen v. Richards Mfg. Co., Inc., 206 Neb. 676, 294 N.W.2d 858 (1980).

Under this section, an expert witness may render an opinion without first disclosing the underlying data upon which that opinion is based. Northern Nat. Gas Co. v. Beech Aircraft Corp., 202 Neb. 300, 275 N.W.2d 77 (1979).

Under sections 27-702 and 27-705, an expert witness, qualified to be such, may testify in terms of opinion or inference without prior disclosure of underlying facts or data, the weight of such evidence being for the trier of facts. State v. Journey, 201 Neb. 607, 271 N.W.2d 320 (1978).

2. Testimony not admissible

Where cross-examination of an expert witness discloses there is no adequate factual basis for an expert's opinion, such opinion is irrelevant, is inadmissible, and should be stricken from consideration by a jury on proper motion of the party adversely affected by such irrelevant evidence. Sorensen v. Lower Niobrara Nat. Resources Dist., 221 Neb. 180, 376 N.W.2d 539 (1985).

Expert testimony should not be received, or if received should be stricken, if it appears that the witness is not in possession of such facts as will enable him to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture. Fletcher v. State, 216 Neb. 342, 344 N.W.2d 899 (1984).

Expert testimony should not be received if it appears the witness is not in possession of such facts as will enable him to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture. Clearwater Corp. v. City of Lincoln, 202 Neb. 796, 277 N.W.2d 236 (1979).

The valuation testimony of a landowner's expert witness should have been stricken where his testimony as to the value of the land has no adequate basis. Clearwater Corp. v. City of Lincoln, 202 Neb. 796, 277 N.W.2d 236 (1979).

3. Miscellaneous

An expert is not required to testify to the underlying facts or data before stating his or her opinion. Boyle v. Welsh, 256 Neb. 118, 589 N.W.2d 118 (1999).

A trial court may, either on its own motion or in response to an objection, require an expert to disclose the underlying facts or data upon which the opinion is to be based before permitting the expert to render his opinion. Forehead v. Galvin, 220 Neb. 578, 371 N.W.2d 271 (1985).

Although this rule substantially liberalizes the requirements for an expert witness, it does not mean that such a witness is no longer required to disclose the basis of an opinion if asked to do so by the court or on cross-examination, nor is the jury entitled to consider an opinion with no adequate basis. Dawson v. Papio Nat. N.R.D., 206 Neb. 225, 292 N.W.2d 42 (1980).

27-706. Rule 706. Judge appointed experts; procedure; compensation; disclosure of appointment; parties may call experts of own selection.

(1) The judge may on his own motion or on the motion of any party enter an order to show why expert witnesses should not be appointed, and may request the parties to submit nominations. The judge may appoint any expert witnesses agreed upon by the parties, and may appoint witnesses of his own selection. An expert witness shall not be appointed by the judge unless he consents to act. A witness so appointed shall be informed of his duties by the judge in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of his findings, if any; his deposition may be taken by any party; and he may be called to testify by the judge or any party. He shall be subject to cross-examination by each party, including a party calling him as a witness.

(2) Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the judge may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and by the opposing parties in equal portions to the clerk of the court in civil cases at a time fixed by the court and thereafter charged in like manner as other costs.

(3) In the exercise of his discretion, the judge may authorize disclosure to the jury of the fact that the court appointed the expert witness.

(4) Nothing in this rule limits the parties in calling expert witnesses of their own selection.

Source:Laws 1975, LB 279, § 54.

Annotations

If proposed expert testimony is fundamentally flawed by the expert's own admission, it is not an abuse of discretion for the trial court to refuse to appoint the expert under this section when there is no showing that this shortcoming in the expert's proposed testimony has been remedied. State v. Quezada, 20 Neb. App. 836, 834 N.W.2d 258 (2013).

27-707. Eyewitness identification and memory; expert witness; admissibility of testimony.

The testimony of an expert witness regarding eyewitness identification and memory may be admitted in any criminal or civil proceeding pursuant to the rules governing admissibility of evidence set forth in the Nebraska Evidence Rules.

Source:Laws 2020, LB881, § 4.

27-801. Rule 801. Definitions; statement, declarant, hearsay; statements which are not hearsay.

The following definitions apply under this article:

(1) A statement is (a) an oral or written assertion or (b) nonverbal conduct of a person, if it is intended by him or her as an assertion;

(2) A declarant is a person who makes a statement;

(3) Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted; and

(4) A statement is not hearsay if:

(a) The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement (i) is inconsistent with his or her testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, (ii) is consistent with his or her testimony and is offered to rebut an express or implied charge against him or her of recent fabrication or improper influence or motive, or (iii) identifies a person as someone the declarant perceived earlier; or

(b) The statement is offered against a party and is (i) his or her own statement, in either his or her individual or a representative capacity, (ii) a statement of which he or she has manifested his or her adoption or belief in its truth, (iii) a statement by a person authorized by him or her to make a statement concerning the subject, (iv) a statement by his or her agent or servant within the scope of his or her agency or employment, or (v) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

Source:Laws 1975, LB 279, § 55; Laws 2019, LB392, § 1.

Cross References

Electronic recordation of statements in custodial interrogation, admissibility, see sections 29-4501 to 29-4508.

Annotations

1. Hearsay

2. Not hearsay

3. Coconspirator statements

4. Impeachment and rehabilitation

5. Excited utterances

6. Miscellaneous

1. Hearsay

A declarant's out-of-court statement offered for the truth of the matter asserted is inadmissible unless it falls within a definitional exclusion or statutory exception. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).

Testimony about where a gun was found was inadmissible hearsay where the witness did not personally find the gun but learned about the location of the gun from his son. State v. Taylor, 287 Neb. 386, 842 N.W.2d 771 (2014).

Under subsection (3) of this section, a witness's previous out-of-court statements are inadmissible hearsay if they are offered for the truth of the matter asserted and do not fall within a definitional exclusion under subsection (4)(a) or a statutory exception. State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).

A written assertion offered to prove the truth of the matter asserted is a hearsay statement unless it falls within an exception or exclusion under the hearsay rules. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Pursuant to subsection (3) of this section, written summaries of the trial testimony of witnesses that contain statements that are offered to prove the truth of the matters asserted therein constitute hearsay and are inadmissible. Westgate Rec. Assn. v. Papio-Missouri River NRD, 250 Neb. 10, 547 N.W.2d 484 (1996).

Report made at request of defendant in regard to condition of waste disposal system was not admissible under subsection (4)(b)(iv) of this section, where person authorized to make report was employed for the purpose of giving technical advice to defendant. Kliment v. National Farms, Inc., 245 Neb. 596, 514 N.W.2d 315 (1994).

A witness's pretrial statement identifying a defendant as the perpetrator of a crime was hearsay pursuant to subsection (3) of this section and, therefore, was inadmissible. State v. Salamon, 241 Neb. 878, 491 N.W.2d 690 (1992).

An insurer's estimate of the cost of repairing damage to a vehicle, without further testimony by the insurer or the person making the repairs, is inadmissible hearsay testimony. State v. Larkin, 222 Neb. 398, 383 N.W.2d 804 (1986).

It is elementary that out-of-court statements offered to prove the truth of the matter asserted are hearsay. State v. Marco, 220 Neb. 96, 368 N.W.2d 470 (1985).

Taped interviews of an accused while under the influence of an inhibition-reducing drug did not relate to the mental state of the accused at the time of the acts charged and were, therefor, hearsay and inadmissible. State v. Rowe, 210 Neb. 419, 315 N.W.2d 250 (1982).

Where testimony of an out-of-court assertion made by someone other than the testifier is offered to prove the truth of the out-of-court assertion, and is partly damaging and partly helpful to the interests of the person who made the out-of-court assertion, it is hearsay and its admission is barred by this section. Belitz v. Suhr, 208 Neb. 280, 303 N.W.2d 284 (1981).

An exculpatory statement made by an accused to police one day after arrest is hearsay and inadmissible at trial before the accused testifies. State v. Pelton, 197 Neb. 412, 249 N.W.2d 484 (1977).

A therapist's testimony that she observed the defendant look astonished when he explained to the therapist he had been charged with sexually abusing a minor and that the defendant denied the abuse to the therapist was inadmissible as hearsay. State v. Egger, 8 Neb. App. 740, 601 N.W.2d 785 (1999).

2. Not hearsay

The evidence established that statements of the chief financial officer and an employee were made by agents of the company within the scope of their employment. Noah's Ark Processors v. UniFirst Corp., 310 Neb. 896, 970 N.W.2d 72 (2022).

Witness interview statements that were gathered as part of an investigation and were relied upon by the employer in making an employment decision were not hearsay, because they were not offered to prove the truth of the matter asserted. Baker-Heser v. State, 309 Neb. 979, 963 N.W.2d 59 (2021).

"Owe notes" offered to show that the owner of the writings possessed illegal substances for purposes of sale and distribution were not hearsay, because they were not offered to show that a recorded drug sale actually took place. State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017).

Statements offered to prove the declarant’s then-existing state of mind are not offered for the truth of the matter asserted. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).

A statement offered to prove its impact on the listener, instead of its truth, is offered for a valid nonhearsay purpose if the listener's knowledge, belief, response, or state of mind after hearing the statement is relevant to an issue in the case. State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).

A verbal act is a statement that has legal significance, i.e., it brings about a legal consequence simply because it was spoken. A nonhearsay purpose for offering a statement exists when a statement has legal significance because it was spoken, independent of the truth of the matter asserted. State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).

Apart from statements falling under the definitional exclusions and statutory exceptions, the admissibility of an out-of-court statement depends upon whether the statement is offered for one or more recognized nonhearsay purposes relevant to an issue in the case. State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).

Out-of-court statements of two unavailable witnesses who said they were at a restaurant at the time of the murder were offered for the purpose of proving that such statements were false, and thus, the trial court erred in excluding them as hearsay. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).

Where autopsy photographs are not oral or written assertions, nor are nonverbal conduct of a person, the photographs are demonstrative evidence and are not hearsay. State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002).

Pursuant to subsection (4)(b) of this section, in a suit instituted by the conservator of an estate of a protected person, statements made by the protected person are not hearsay. Ochs v. Makousky, 249 Neb. 960, 547 N.W.2d 136 (1996).

In an action against an estate, a statement made by the decedent constitutes a party admission, under subsection (4)(b) of this section. In re Estate of Krueger, 235 Neb. 518, 455 N.W.2d 809 (1990).

Under subsection (4)(b)(i) of this section, a statement of a party defendant is not hearsay. State v. Boham, 233 Neb. 679, 447 N.W.2d 485 (1989).

Included within the definition of a statement for hearsay purposes are oral or written assertions, but oral assertions contained in remarks section of police complaint report were not hearsay statements because they were not offered to prove the truth of the matter asserted. State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).

Testimony by police officers and social workers regarding statements made by declarants was offered to rebut a charge of recent fabrication, and was therefore admissible. In re Interest of D.J. et al., 224 Neb. 226, 397 N.W.2d 616 (1986).

A verbal act, which is an operative fact resulting in legal consequences, is not hearsay within the meaning of Neb. Evid. R. 801(3) and, therefore, is not inadmissible hearsay prohibited by Neb. Evid. R. 802. Alliance Nat. Bank v. State Surety Co., 223 Neb. 403, 390 N.W.2d 487 (1986).

A statement by a party's agent or servant within the scope of agency or employment offered against the party is not hearsay. Bump v. Firemen's Ins. Co., 221 Neb. 678, 380 N.W.2d 268 (1986).

Statement made in presence of allegedly estranged wife, by husband, to the effect that they were back together again, to which wife agreed "everything is going perfect," was admissible as an exception to the hearsay rule. In re Interest of M., 215 Neb. 383, 338 N.W.2d 764 (1983).

Testimony about a conversation offered to corroborate allegations that certain statements were made but not to prove that the statements were true is not hearsay. Gray v. Maxwell, 206 Neb. 385, 293 N.W.2d 90 (1980).

Where a conversation between two parties is introduced to show the nature of the relationship between the parties, and is not offered for the truth of those statements, the conversation is not hearsay. Murdoch v. Murdoch, 200 Neb. 429, 264 N.W.2d 183 (1978).

Text messages attributed to the victim were not hearsay where offered to show their effect on the defendant. State v. Wynne, 24 Neb. App. 377, 887 N.W.2d 515 (2016).

Where there was sufficient evidence to establish that the defendant authored the text messages attributed to him, those text messages, which were his own statements, were not hearsay. State v. Wynne, 24 Neb. App. 377, 887 N.W.2d 515 (2016).

Pursuant to subsection (1) of this section, a defendant's mother's utterance to a police officer, asking whether the officer was alone, was not a "statement" under the Nebraska Evidence Rules, was not offered for any truth of any matter, and was therefore not hearsay, in a prosecution for third degree assault on a law enforcement officer and second-offense resisting arrest; the utterance was not an assertion or declaration, but instead was an interrogatory seeking information and not asserting any particular fact. State v. Heath, 21 Neb. App. 141, 838 N.W.2d 4 (2013).

Pursuant to subsection (4)(b)(iv) of this section, a statement need not be one of fact to be admissible under the hearsay exception for statements made against a party's interest made by the party's agent or servant within the scope of his or her agency or employment. Gerken v. Hy-Vee, Inc., 11 Neb. App. 778, 660 N.W.2d 893 (2003).

In an oral contract dispute where defendant denied the existence of a contract, plaintiff introduced defendant's petition from another case as an admission against interest, since it applied to the same contract at issue and was signed by defendant's attorney on behalf of the company. Nichols Media Consultants, Inc. v. Ken Morehead Inv. Co., Inc., 1 Neb. App. 220, 491 N.W.2d 368 (1992).

3. Coconspirator statements

A conspirator recounting past transactions or events having no connection with what is being done in promotion of the common design cannot be assumed to represent those conspirators associated with him or her. State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).

Pursuant to subdivision (4) of this section, the necessary commonality of interests between conspirators is no longer present when the central purpose of the conspiracy has succeeded or failed. State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).

Pursuant to subsection (4) of this section, the definitional exclusion to the hearsay rule applies to the coverup or concealment of the conspiracy that occurs while the conspiracy is ongoing, just as it would to any other part of the conspiracy. State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).

Pursuant to subsection (4) of this section, to withdraw from a conspiracy such that statements of a coconspirator are inadmissible, the coconspirator must do more than ceasing, however definitively, to participate; rather, the coconspirator must make an affirmative action either by making a clean breast to the authorities or by communicating abandonment in a manner calculated to reach coconspirators, and must not resume participation in the conspiracy. State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).

Before the trier of facts may consider testimony under the coconspirator exception to the hearsay rule, a prima facie case establishing the existence of the conspiracy must be shown by independent evidence. State v. Hudson, 279 Neb. 6, 775 N.W.2d 429 (2009).

The coconspirator exception to the hearsay rule is applicable regardless of whether a conspiracy has been charged in the information or not. State v. Hudson, 279 Neb. 6, 775 N.W.2d 429 (2009).

The purpose of requiring independent evidence to establish a conspiracy is to prevent the danger of hearsay evidence being lifted by its own bootstraps, i.e., relying on the hearsay statements to establish the conspiracy, and then using the conspiracy to permit the introduction of what would otherwise be hearsay testimony in evidence. State v. Hudson, 279 Neb. 6, 775 N.W.2d 429 (2009).

To be admissible, the statements of the coconspirator must have been made while the conspiracy was pending and in furtherance of its objects. State v. Hudson, 279 Neb. 6, 775 N.W.2d 429 (2009).

A coconspirator's idle chatter or casual conversation about past events is generally not considered to be in furtherance of the conspiracy purposes of this section. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).

Statements made by a coconspirator in furtherance of avoiding capture or punishment are made in furtherance of the conspiracy within the meaning of this section. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).

Subsection (4)(b)(v) of this section governs only the admissibility of testimony about out-of-court statements made by a coconspirator—not the admissibility of all the other testimony offered by the same witness. It is irrelevant to the direct testimony of a coconspirator. There is no reason why a witness cannot testify to the existence of a conspiracy, and that the defendant was a participant, and then testify to out-of-court statements made by the alleged coconspirators. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).

The "in furtherance" language of this section is to be construed broadly. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).

To be admissible, the statements of a coconspirator must have been made while the conspiracy was pending and in furtherance of its objects. If the statements took place after the conspiracy had ended, or if merely narrative of past events, they are not admissible. In other words, for an out-of-court statement to be admissible under subsection (4)(b)(v) of this section, there must be evidence that there was a conspiracy involving the declarant and the nonoffering party and that the statement was made during the course and in furtherance of the conspiracy. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).

Pursuant to subsection (4)(b)(v) of this section, before the trier of fact may consider testimony under the coconspirator exception to the hearsay rule, a prima facie case establishing the existence of the conspiracy must be shown by independent evidence. State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999).

The prima facie proof of a conspiracy requisite to the introduction of evidence under subsection (4) of this section requires only enough evidence to take the question to the jury. State v. Hansen, 252 Neb. 489, 562 N.W.2d 840 (1997).

Pursuant to subsection (4) of this section, the Nebraska rules of evidence provide that a statement is not hearsay if the statement is offered against a party and is a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. State v. Conn, 12 Neb. App. 635, 685 N.W.2d 357 (2004).

4. Impeachment and rehabilitation

The fact that witnesses' memories conflict as to when, where, or how out-of-court statements were made may be relevant to the credibility of the witnesses' testimony, but it is not relevant for purposes of analyzing whether an out-of-court statement is a prior consistent statement. State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).

Pursuant to subdivision (4)(a)(ii) of this section, statements cannot be considered prior consistent statements offered to rebut a charge of fabrication when they are offered into evidence before any charge of fabrication was made. Werner v. County of Platte, 284 Neb. 899, 824 N.W.2d 38 (2012).

Where the State accused the defendant of fabricating his version of events to comport with the physical evidence found at the crime scene, the defendant's motive to fabricate could not have arisen until the defendant had knowledge of the substance of that evidence. Any statements consistent with the defendant's version of events and made before the defendant learned of this evidence were admissible as prior consistent statements under subsection (4)(a)(ii) of this section. State v. Neal, 265 Neb. 693, 658 N.W.2d 694 (2003).

Pursuant to subsection (4) of this section, an attempt at impeachment cannot be equated with charges of recent fabrication, improper influence, or improper motive. State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998).

Pursuant to subsection (4)(a) of this section, attempts at impeachment cannot be equated to charges of recent fabrication. State v. Buechler, 253 Neb. 727, 572 N.W.2d 65 (1998).

Pursuant to subsection (4)(a)(ii) of this section, the introduction of a declarant's consistent out-of-court statement to rebut charges of improper influence or recent fabrication is permitted only when the consistent statement was made prior to the alleged act of improper influence or recent fabrication. State v. Morris, 251 Neb. 23, 554 N.W.2d 627 (1996).

Prior inconsistent sworn statements previously characterized as hearsay available for the purpose of impeachment only are now substantive evidence of fact contained in the statement, provided the requirements prescribed by subsection (4)(a)(i) of this section are satisfied. Behm v. Northwestern Bell Tel. Co., 241 Neb. 838, 491 N.W.2d 334 (1992).

Since a prior consistent statement may be accorded substantive use only if it is used to rebut an express or implied charge, impeachment of the witness is a precondition. State v. Smith, 241 Neb. 311, 488 N.W.2d 33 (1992).

The victim is not a "party" to a criminal case for the purposes of impeachment by a prior inconsistent statement. State v. Antillon, 229 Neb. 348, 426 N.W.2d 533 (1988).

Under this section, evidence of a consistent statement is not hearsay if the declarant testifies and is subject to cross-examination and the statement is consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive. State v. Gregory, 220 Neb. 778, 371 N.W.2d 754 (1985).

As a result of Rule 801(4)(a) of the Nebraska Evidence Rules, what was previously characterized as hearsay available for the purpose of impeachment only has now become substantive evidence of fact contained in the statement provided the requirements prescribed by Rule 801(4)(a) are satisfied. A proceeding contemplated by Rule 801(4)(a) is a formal action before a judicial tribunal, as well as an action before a quasi-judicial officer or board, invoked to enforce or protect a right. State v. Johnson, 220 Neb. 392, 370 N.W.2d 136 (1985).

If an attack on the credibility of a witness through use of an inconsistent statement is accompanied by or interpretable as a charge of a plan or contrivance to give false testimony, proof of a prior consistent statement before the plan or contrivance was formed tends strongly to disprove that the testimony was the result of contrivance. State v. Johnson, 220 Neb. 392, 370 N.W.2d 136 (1985).

A prior inconsistent statement of a witness was admissible as substantive evidence when the statement was sworn testimony at a prior preliminary hearing. State v. Jackson, 217 Neb. 363, 348 N.W.2d 876 (1984).

A prior consistent statement is not admissible as substantive corroborative evidence unless it fits the exception of section 27-804(4)(a)(ii), R.R.S.1943. State v. Packett, 206 Neb. 548, 294 N.W.2d 605 (1980).

Circumstances under which prior inconsistent statements admissible explained. State v. Packett, 206 Neb. 548, 294 N.W.2d 605 (1980).

This section makes prior inconsistent statements of a witness admissible as substantive evidence only if they were made under oath. State v. Isley, 195 Neb. 539, 239 N.W.2d 262 (1976).

A prior consistent statement has no value as substantive evidence of the truth of its contents, nor as rehabilitation of the credibility of the witness, if it is made at the time when the witness clearly has a motive to fabricate; such statements are not admissible unless the statement has significant probative force bearing on credibility apart from mere repetition. State v. Anderson, 1 Neb. App. 914, 511 N.W.2d 174 (1993).

Where a prior statement is relevant and meets the statutory requirements of Neb. Evid. R. 801(4)(a)(ii), it is not rendered inadmissible because it was made after the impeaching statement. State v. Austin, 1 Neb. App. 716, 510 N.W.2d 375 (1993).

5. Excited utterances

Excited utterances are an exception to the hearsay rule, because the spontaneity of excited utterances reduces the risk of inaccuracies inasmuch as the statements are not the result of a declarant's conscious effort to make them. The justification for the excited utterance exception is that circumstances may produce a condition of excitement which temporarily stills the capacity for reflection and produces utterances free of conscious fabrication. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).

For a statement to be an excited utterance, the following criteria must be met: (1) There must be a startling event, (2) the statement must relate to the event, and (3) the declarant must have made the statement while under the stress of the event. An excited utterance does not have to be contemporaneous with the exciting event. An excited utterance may be subsequent to the startling event if there was not time for the exciting influence to lose its sway. The true test for an excited utterance is not when the exclamation was made, but whether, under all the circumstances, the declarant was still speaking under the stress of nervous excitement and shock caused by the event. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).

The period in which the excited utterance exception applies depends on the facts of the case. Relevant facts include the declarant's physical conditions or manifestation of stress and whether the declarant spoke in response to questioning. But a declarant's response to questioning, other than questioning from a law enforcement officer, may still be an excited utterance if the context shows that the declarant made the statement without conscious reflection. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).

Where there was testimony that immediately after a shooting, an eyewitness to the shooting was hysterical, screaming, and inconsolable, the eyewitness’s statements about the identity of the shooter were admissible under the excited utterance exception to hearsay. State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).

6. Miscellaneous

Where the translator of a defendant's out-of-court verbal or written statements from a foreign language to English is initially shown by the State to be qualified by knowledge, skill, experience, training, or education to perform such translation, and where the translator testifies at trial and is subject to cross-examination, the translation is admissible as nonhearsay under subdivision (4) of this section, and any challenges to the accuracy of the translation go to the weight of the evidence and not to its admissibility. State v. Martinez, 306 Neb. 516, 946 N.W.2d 445 (2020).

The State must prove by a greater weight of the evidence that a defendant authored or made a statement in order to establish preliminary admissibility as nonhearsay by a party opponent. State v. Savage, 301 Neb. 873, 920 N.W.2d 692 (2018).

When overruling a hearsay objection on the ground that testimony about an out-of-court statement is received not for its truth but only to prove that the statement was made, a trial court should identify the specific nonhearsay purpose for which the making of the statement is relevant and probative. State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010).

A party on appeal may not assert a different ground for an objection to the admission of evidence than was offered to the trial court. But an appellate court can consider whether the record clearly shows an exhibit was admissible for the truth of the matter asserted under a different rule from the one erroneously applied by the trial court when both parties had a fair opportunity to develop the record on the underlying facts. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

A party's possession of a written statement can be an adoption of what its contents reveal under circumstances that tie the party to the document in a meaningful way. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

A litigant's written opinion about the value of real property made for the purpose of a property tax protest is not relevant to its market value for the purpose of valuing an easement later taken by the State. Holman v. Papio-Missouri River Nat. Resources Dist., 246 Neb. 787, 523 N.W.2d 510 (1994).

Conviction for possession of marijuana with intent to distribute reversed where hearsay testimony of an alleged coconspirator improperly received. State v. Bobo, 198 Neb. 551, 253 N.W.2d 857 (1977).

27-802. Rule 802. Hearsay rule.

Hearsay is not admissible except as provided by these rules, by other rules adopted by the statutes of the State of Nebraska, or by the discovery rules of the Supreme Court.

Source:Laws 1975, LB 279, § 56; Laws 2000, LB 921, § 29.

Annotations

The Nebraska Evidence Rules provide that hearsay is admissible when authorized by the statutes of the State of Nebraska. In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019).

The language of section 25-1273.01, in combination with this section, indicates a clear intention by the Legislature to create an independent avenue to admit deposition testimony. Walton v. Patil, 279 Neb. 974, 783 N.W.2d 438 (2010).

A trial judge does not have discretion to admit inadmissible hearsay statements. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay ruling and reviews de novo the court's ultimate determination to admit evidence over a hearsay objection. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

With certain exceptions, hearsay evidence is not admissible. In re Interest of Constance G., 254 Neb. 96, 575 N.W.2d 133 (1998).

Medical reports produced out of court are hearsay. Vacanti v. Master Electronics Corp., 245 Neb. 586, 514 N.W.2d 319 (1994).

An insurer's estimate of the cost of repairing damage to a vehicle, without further testimony by the insurer or the repair person, is inadmissible hearsay testimony. State v. Larkin, 222 Neb. 398, 383 N.W.2d 804 (1986).

Facts of the case held to be sufficient to place young child's statement as within the hearsay exceptions. State v. Roy, 214 Neb. 204, 333 N.W.2d 398 (1983).

Hearsay evidence is not admissible except as otherwise provided by the statutes of the state. State v. Williams, 203 Neb. 649, 279 N.W.2d 847 (1979).

27-803. Rule 803. Hearsay exceptions; enumerated; availability of declarant immaterial.

Subject to the provisions of section 27-403, the following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it;

(2) A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition;

(3) A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will;

(4) Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment;

(5) A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him or her to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his or her memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party;

(6)(a) A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, other than opinions or diagnoses, made at or near the time of such acts, events, or conditions, in the course of a regularly conducted activity, if it was the regular course of such activity to make such memorandum, report, record, or data compilation at the time of such act, event, or condition, or within a reasonable time thereafter, as shown by the testimony of the custodian or other qualified witness or by a certification that complies with subdivision (11) or (12) of section 27-902 or with a statute permitting certification, unless the source of information or method or circumstances of preparation indicate lack of trustworthiness. The circumstances of the making of such memorandum, report, record, or data compilation, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight.

(b) A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, other than opinions or diagnoses, that was received or acquired in the regular course of business by an entity from another entity and has been incorporated into and kept in the regular course of business of the receiving or acquiring entity; that the receiving or acquiring entity typically relies upon the accuracy of the contents of the memorandum, report, record, or data compilation; and that the circumstances otherwise indicate the trustworthiness of the memorandum, report, record, or data compilation, as shown by the testimony of the custodian or other qualified witness. Subdivision (6)(b) of this section shall not apply in any criminal proceeding;

(7) Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of subdivision (6) of this section to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate a lack of trustworthiness;

(8) Upon reasonable notice to the opposing party prior to trial, records, reports, statements, or data compilations made by a public official or agency of facts required to be observed and recorded pursuant to a duty imposed by law, unless the sources of information or the method or circumstances of the investigation are shown by the opposing party to indicate a lack of trustworthiness;

(9) Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law;

(10) To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with section 27-902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation or entry;

(11) Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization;

(12) Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a member of the clergy, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter;

(13) Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones or the like;

(14) The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorized the recording of documents of that kind in that office;

(15) A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document;

(16) Statements in a document in existence thirty years or more whose authenticity is established;

(17) Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations;

(18) Statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice, to the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination. If admitted, the statements may be read into evidence but may not be received as exhibits;

(19) Reputation among members of his or her family by blood, adoption, or marriage, or among his or her associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of his or her personal or family history;

(20) Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located;

(21) Reputation of a person's character among his or her associates or in the community;

(22) Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the government in a criminal prosecution for purposes other than impeachment, judgments against a person other than the accused. The pendency of an appeal may be shown but does not affect admissibility;

(23) Judgments as proof of matters of personal, family, or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation; and

(24) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (a) the statement is offered as evidence of a material fact, (b) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and (c) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. A statement may not be admitted under this exception unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his or her intention to offer the statement and the particulars of it, including the name and address of the declarant.

Source:Laws 1975, LB 279, § 57; Laws 1999, LB 64, § 1; Laws 2014, LB788, § 7; Laws 2021, LB57, § 1; Laws 2023, LB50, § 3.

Annotations

1. Excited utterance

2. State of mind

3. Business record

4. Medical diagnosis

5. Residual hearsay

6. Miscellaneous

1. Excited utterance

For purposes of the excited utterance exception to the hearsay rule found in subsection (1) of this section, in making a preliminary determination that a shocking or startling event has taken place, a trial judge may consider hearsay evidence which itself fails to satisfy any exception. State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).

Where victim's statement appeared to be result of pressure exerted on her, necessary element of spontaneity was absent and statement was not admissible as excited utterance. State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994).

For a statement to qualify as an excited utterance under subsection (1) of this section, (1) there must have been a startling event, (2) the statement must relate to the event, and (3) the statement must have been made by the declarant while under the stress of the event. State v. Tlamka, 244 Neb. 670, 508 N.W.2d 846 (1993); State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990); State v. Lee, 216 Neb. 63, 341 N.W.2d 600 (1983).

For hearsay to be admissible as an excited utterance under subsection (1) of this section, statements need not be made contemporaneously with the exciting cause but may be made subsequent to it, provided there has not been time for the exciting influence to lose its sway and be dissipated. The key requirement is spontaneity, a showing that the statement was made without time for conscious reflection. The true test is not when the exclamation was made, but whether under all the circumstances of the particular exclamation the speaker may be considered as speaking under the stress of nervous excitement and shock produced by the act in issue. State v. Tlamka, 244 Neb. 670, 508 N.W.2d 846 (1993).

A statement made by victim exhibiting observable manifestations of stress qualified as an excited utterance although elapsed time between stressful event and statement was not established. The underlying theory of the excited utterance exception is that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993).

Because there was no showing that minor's statements were made while she was under the stress of a startling event, the trial court abused its discretion in admitting testimony of the babysitter as to what the minor told her. In re Interest of D.P.Y. and J.L.Y., 239 Neb. 647, 477 N.W.2d 573 (1991).

Statements made to police officer at scene of a crime resulting from young woman encouraging the speaker to cooperate did not fall within excited utterance exception to the hearsay rule. State v. Martin, 239 Neb. 339, 476 N.W.2d 536 (1991).

Under subsection (1) of this section, spontaneity is a key requirement for the excited utterance exception and is demonstrated by showing the statement was made without time for conscious reflection. State v. Sullivan, 236 Neb. 344, 461 N.W.2d 84 (1990).

A statement by a 4-year-old witness regarding child abuse and murder made in response to police questioning nearly 2 days after the events in question constitutes an excited utterance. The statement is also admissible under the residual hearsay exception. Under the excited utterance hearsay exception, a declarant's nervous state is relevant to the issue of whether the statement was made by the declarant while under the stress of the event. Under this exception, the crucial consideration is whether there has been time for conscious reflection. State v. Plant, 236 Neb. 317, 461 N.W.2d 253 (1990).

The determination as to the admissibility of an excited utterance generally rests within the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. In the case of small children, generally, the stress of a sexual assault is present for some time after an assault occurs, and the key requirement for admissibility is spontaneity. In re Interest of R.A. and V.A., 225 Neb. 157, 403 N.W.2d 357 (1987).

A statement made by a young boy to his mother shortly after a sexual assault is an excited utterance under subsection (1) of this section and thus an exception to the bar against hearsay. State v. Gonzales, 219 Neb. 846, 366 N.W.2d 775 (1985).

A statement to police officers made by a 7-year-old girl shortly after she was sexually assaulted and relating to the sexual assault, qualifies as an excited utterance. State v. Red Feather, 205 Neb. 734, 289 N.W.2d 768 (1980).

A spontaneous statement made at the time of the event by one who has personal knowledge of the subject matter of the statement may be admissible under this section if the statutory conditions precedent to admission are met. State v. Reed, 201 Neb. 800, 272 N.W.2d 759 (1978).

A child sexual assault victim's statements to parents were admissible as excited utterances under subdivision (1) of this section. State v. Edwards, 28 Neb. App. 893, 949 N.W.2d 799 (2020).

Pursuant to subsection (1) of this section, statements made by a victim of sexual assault to a neighbor after the victim walked several blocks to the neighbor's house and was visibly shaken and scared were admissible under this section. State v. Sanchez-Lahora, 9 Neb. App. 621, 616 N.W.2d 810 (2000).

2. State of mind

Pursuant to subsection (2) of this section, the state-of-mind exception to the hearsay rule allows the admission of extrajudicial statements to show the state of mind of the declarant only if the declarant's then existing state of mind is a material issue in the case. State v. Hansen, 252 Neb. 489, 562 N.W.2d 840 (1997).

Victim's extrajudicial declarations of fear of the defendant are admissible under the state of mind exception to the hearsay rule only if there is a manifest need for such evidence and it is relevant to a material issue in the case. The state of mind exception to the hearsay rule allows the admission of extrajudicial statements to show the state of mind of the declarant if the state of mind of the declarant at the time the statement was made is an issue in the case. State v. Drinkwalter, 242 Neb. 40, 493 N.W.2d 319 (1992).

As specifically provided under subsection (2) of this section, hearsay statements of memory offered to prove the fact remembered are not admissible under the state-of-mind exception. State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).

A declaration offered to show the defendant's state of mind which is too remote in point of time should be excluded as lacking probative value. State v. Harrison, 221 Neb. 521, 378 N.W.2d 199 (1985).

Hearsay statements made immediately prior to an incident which resulted in the death of the declarant are admissible as a statement of declarant's then existing state of mind and emotion to prove declarant's intent, plan, motive, or conduct. State v. Smith, 202 Neb. 501, 276 N.W.2d 104 (1979).

Where a statement is made indicating an intention to pay rent, the statement qualifies as a declaration of state of mind and is an exception to the hearsay rule. Barnes v. Milligan, 200 Neb. 450, 264 N.W.2d 186 (1978).

Statement of intent related to the destination and purpose of a journey admissible only if made at or near time of departure. Fite v. Ammco Tools, Inc., 199 Neb. 353, 258 N.W.2d 922 (1977).

Offered evidence of an utterance by accused suggesting his state of mind or emotion, held not admissible as exception to hearsay rule where such state of mind was not a material fact. State v. Pelton, 197 Neb. 412, 249 N.W.2d 484 (1977).

3. Business record

An exhibit composed of printouts from the county treasurer's official website and a letter from the treasurer setting forth the amount of delinquent taxes for a property, along with pages showing the tax billed each year, the tax paid, and the interest paid, fit within the business record exception to hearsay. AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212 (2020).

Nebraska's business record exception to hearsay is not a carbon copy of its federal counterpart. Unlike Fed. R. Evid. 803(6), subsection (5) of this section excludes opinions and diagnoses from the business record exception. So, an expert's opinions and medical diagnoses, as distinguished from factual statements, in an employer's file for an employee were not admissible under Nebraska's business record exception. Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).

The business record exception to hearsay is not limited to records created by the holder of the records. It applies to a memorandum, report, record, or data compilation. The term "data compilation" is broad enough to include records furnished by third parties with knowledge of the relevant acts, events, or conditions if the third party has a duty to make the records and the holder of the record routinely compiles and keeps them. Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).

Computerized printouts that are merely the visual counterparts to routine electronic business records are usually hearsay, but they can be admissible under the business records exception. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

The party seeking to admit a business record under the business records exception to the hearsay rule bears the burden of establishing foundation under a three-part test. First, the proponent must establish that the activity recorded is of a type that regularly occurs in the course of the business' day-to-day activities. Second, the proponent must establish that the record was made as part of a regular business practice at or near the time of the event recorded. Third, the proponent must authenticate the record by a custodian or other qualified witness. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).

The reason for excluding business records from the hearsay rule is their circumstantial guarantees of trustworthiness. The business records exception contemplates that certain events are regularly recorded as routine reflections of the day-to-day operations of a business so that the character of the records and their earmarks of reliability import trustworthiness. Thus, the recordation becomes a reliable recitation of the fact. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).

When computer-stored records satisfy the business records exception to the hearsay rule, preparing printouts for evidentiary purposes does not deprive the printouts of their character as business records. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).

For admissibility of a document as a business record, first, the activity recorded must be a type which regularly occurs in the course of the business' day-to-day activity. Second, the record must have been made as part of a regular business practice at or near the time of the event recorded. Third, the record must be authenticated by a custodian or other qualified witness. State v. Wright, 231 Neb. 410, 436 N.W.2d 205 (1989); Chalupa v. Hartford Fire Ins. Co., 217 Neb. 662, 350 N.W.2d 541 (1984).

Foundational requirements for admitting a document under the business records exception to the hearsay rule are set out in this case. State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).

A computer printout, disregarding pencil notations put on the document after the record was prepared, was admissible in evidence as a business record. Richards v. Arthaloney, 216 Neb. 11, 342 N.W.2d 642 (1983).

Because there was sufficient foundational testimony, admission of bank records under this section did not violate Neb. Const., Art. I, § 11. To admit bank records under this section, testimony of each individual teller or processor who handled the records is not necessary, but records may be admitted through foundational testimony of knowledgeable witnesses. State v. Spaulding, 211 Neb. 575, 319 N.W.2d 449 (1982).

The supervisor of all customer billing records was an appropriate witness with regard to explaining the compilation of data and conditions of how the billings were prepared, and his testimony was admissible as a qualified lay witness. City of Lincoln v. Bud Moore, Inc., 210 Neb. 647, 316 N.W.2d 590 (1982).

Subdivision (5)(b) of this section, on its face, does not apply to criminal proceedings. State v. Walker, 29 Neb. App. 292, 953 N.W.2d 65 (2020).

Subsection (5) of this section does not require a party offering business records to prove that the recordkeeping system is standard within the industry. State v. Ford, 1 Neb. App. 575, 501 N.W.2d 318 (1993).

4. Medical diagnosis

Statements having a dual medical and investigatory purpose are admissible under subdivision (4) of this section, only if the proponent of the statements demonstrates that (1) the declarant's purpose in making the statements was to assist in the provision of medical diagnosis or treatment and (2) the statements were of a nature reasonably pertinent to medical diagnosis or treatment by a medical professional. In re Interest of Xandria P., 311 Neb. 591, 973 N.W.2d 692 (2022).

The fundamental inquiry to determine whether statements, made by a declarant who knew law enforcement was listening, had a medical purpose is if the challenged statement had some value in diagnosis or treatment, because the patient would still have the requisite motive for providing the type of sincere and reliable information that is important to diagnosis and treatment. In re Interest of Xandria P., 311 Neb. 591, 973 N.W.2d 692 (2022).

The testimony of the forensic interview specialist and the recorded forensic interview itself provide adequate foundation for admitting a juvenile's recorded testimony under subdivision (4) of this section. In re Interest of Xandria P., 311 Neb. 591, 973 N.W.2d 692 (2022).

Testimony by an examining physician concerning a 10-year-old victim's diagnoses was admissible pursuant to the hearsay exception governing medical diagnosis or treatment, where the physician testified that she learned of the diagnoses while conducting a patient interview for the purpose of treating the victim during a visit to the emergency room following the underlying incident. The physician further testified that obtaining a patient history was an important part of her job and that she attempted to obtain a medical history from every patient she treated. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).

A sexual assault victim's statements to a sexual assault nurse examiner during an examination performed in an emergency room and to a doctor performing a followup examination that the defendant sexually abused her were admissible under the medical purpose hearsay exception. State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).

Statements made by a child victim of sexual assault to a forensic interviewer with a dual medical and investigatory purpose were admissible under subdivision (3) of this section when the forensic interviewer was in the chain of medical care and circumstantial evidence permitted an inference that the statements were made in legitimate and reasonable contemplation of medical diagnosis or treatment. State v. Jedlicka, 297 Neb. 276, 900 N.W.2d 454 (2017).

A statement is admissible under the medical purpose hearsay exception if gathered for dual medical and investigatory purposes, so long as the proponent demonstrates that (1) the declarant's purpose in making the statements was to assist in the provision of medical diagnosis or treatment and (2) the statements were of a nature reasonably pertinent to medical diagnosis or treatment by a medical professional. State v. Vigil, 283 Neb. 129, 810 N.W.2d 687 (2012).

A statement made by a child victim of sexual abuse to a forensic interviewer in a medical setting may be admissible under subsection (3) of this section, even though the interview has the partial purpose of assisting law enforcement's investigation of the crimes. State v. Vigil, 283 Neb. 129, 810 N.W.2d 687 (2012).

Where an individual is alleged to be the victim of sexual assault, statements reasonably pertinent to medical diagnosis and treatment of both physical and psychological trauma are admissible under subsection (3) of this section. State v. Vigil, 283 Neb. 129, 810 N.W.2d 687 (2012).

Whether a statement was both taken and given in contemplation of medical diagnosis or treatment is a factual finding made by the trial court in determining the admissibility of the evidence under subsection (3) of this section, and an appellate court reviews that determination for clear error. State v. Vigil, 283 Neb. 129, 810 N.W.2d 687 (2012).

Statements of a foster parent were properly admissible under subsection (3), where the evidence demonstrated that the statements were made to assist in the provision of medical diagnosis or treatment, that the statements were reasonably pertinent to such diagnosis and treatment, and that a doctor would reasonably rely on such statements. In re Interest of B.R. et al., 270 Neb. 685, 708 N.W.2d 586 (2005).

Pursuant to subsection (17) of this section, duly admitted learned treatises do not independently establish the standard of care in a medical malpractice action. They are merely evidence of the standard of care to the extent relied upon by the expert witness in direct examination, or called to the attention of the expert witness upon cross-examination. Breeden v. Anesthesia West, 265 Neb. 356, 656 N.W.2d 913 (2003).

As a general rule, the hearsay exception found in subsection (3) of this section applies to persons seeking medical assistance from persons who are expected to provide some form of health care. The rationale for the hearsay exception found in subsection (3) of this section is that reliability is assured by the likelihood that the patient believes that the effectiveness of the treatment will depend on the accuracy of the information provided. Vacanti v. Master Electronics Corp., 245 Neb. 586, 514 N.W.2d 319 (1994).

Statement made by victim to medical technicians which did not relate to diagnosis or treatment was not admissible under subsection (3) of this section. State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994).

Child's statements relating to the source of sexual abuse are admissible as an exception to the hearsay rule when it is clear that the comments relate to a medical condition and are offered in the context of a medical examination and diagnosis. State v. Roenfeldt, 241 Neb. 30, 486 N.W.2d 197 (1992).

Exculpatory statements made by an accused to a psychiatrist for diagnosis of accused's mental condition, insofar as they recite the accused's actions in relation to a crime, are not competent evidence of the truth of the statements. Statements are admissible only to show cause of mental condition and as are pertinent to diagnosis or treatment of mental condition. State v. Hardin, 212 Neb. 774, 326 N.W.2d 38 (1982).

Statements made to an emergency room physician in the course of questioning to ascertain the nature and cause of injury are admissible under section 27-803(3). Where those statements were made by a 7-year-old girl, approximately an hour after she had been sexually assaulted, and while she was still upset, anxious, and crying, and the statements related to the assault, they are also admissible as excited utterances. State v. Red Feather, 205 Neb. 734, 289 N.W.2d 768 (1980).

Pursuant to subdivision (3) of this section, a child sexual assault victim's statements, as relayed to a doctor by a forensic examiner and testified to by the doctor, were admissible even though they were double hearsay because each part of the combined statements conformed with an exception to the hearsay rule. State v. Edwards, 28 Neb. App. 893, 949 N.W.2d 799 (2020).

Pursuant to subdivision (3) of this section, statements made by a child victim of sexual abuse to a forensic interviewer in the chain of medical care may be admissible even though the interview has the partial purpose of assisting law enforcement. State v. Edwards, 28 Neb. App. 893, 949 N.W.2d 799 (2020).

Statements having a dual medical and investigatory purpose are admissible under subdivision (3) of this section only if the proponent of the statements demonstrates that (1) the declarant's purpose in making the statements was to assist in the provision of medical diagnosis or treatment and (2) the statements were of a nature reasonably pertinent to medical diagnosis or treatment by a medical professional. State v. Edwards, 28 Neb. App. 893, 949 N.W.2d 799 (2020).

Subdivision (3) of this section is based on the notion that a person seeking medical attention will give a truthful account of the history and current status of his or her condition in order to ensure proper treatment. State v. Edwards, 28 Neb. App. 893, 949 N.W.2d 799 (2020).

Under subdivision (3) of this section, the appropriate state of mind of the declarant may be reasonably inferred from the circumstances; such a determination is necessarily fact specific. State v. Edwards, 28 Neb. App. 893, 949 N.W.2d 799 (2020).

Under subdivision (3) of this section, the fundamental inquiry when considering a declarant's intent is whether the statement was made in legitimate and reasonable contemplation of medical diagnosis or treatment. State v. Edwards, 28 Neb. App. 893, 949 N.W.2d 799 (2020).

Under subdivision (3) of this section, a statement is generally considered admissible under the medical purpose hearsay exception if gathered for dual medical and investigatory purposes, as long as the statement, despite its dual purpose, was made in legitimate and reasonable contemplation of medical diagnosis and treatment. State v. Cheloha, 25 Neb. App. 403, 907 N.W.2d 317 (2018).

A therapist's testimony that she observed the defendant look astonished when he explained to the therapist he had been charged with sexually abusing a minor and that the defendant denied the abuse to the therapist did not qualify as an exception for medical diagnosis under subsection (3) of this section. State v. Egger, 8 Neb. App. 740, 601 N.W.2d 785 (1999).

Where a treating physician testifying for the State as an expert witness in the prosecution of a sexual assault has restated to the jury the victim's version of the alleged assault, and where the victim is capable of telling the jury her version of the alleged assault, the State cannot use subsection (3) of this section as a means of allowing a psychiatrist testifying as a subsequent expert witness to once again restate to the jury the victim's version of the alleged assault. State v. White, 2 Neb. App. 106, 507 N.W.2d 654 (1993).

Child sexual abuse victim's out-of-court statements, as restated at trial by emergency room physician who had treated the victim, identifying defendant as her abuser were admissible because the statements were made in the course of medical treatment for purposes of diagnosis. State v. Max, 1 Neb. App. 257, 492 N.W.2d 887 (1992).

5. Residual hearsay

To be admitted under the residual hearsay exception, a statement must have "equivalent circumstantial guarantees of trustworthiness" as other hearsay statements that are excepted from exclusion by a specific rule. The statement also must (a) be offered as evidence of a material fact, (b) be more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and (c) serve the general purposes of the rules of evidence and the interests of justice by its admission. Finally, the rule provides that a statement may not be admitted under the exception unless a notice requirement set forth in the rule is met. State v. Matteson, 313 Neb. 435, 985 N.W.2d 1 (2023).

Under the plain text of subsection (24) of this section, a trial court does not weigh the criteria set forth in the rule as part of some sort of balancing test. Rather, the text provides that a hearsay statement must satisfy each of five statutory requirements before it can be admitted under the residual hearsay exception. These five statutory requirements are thus "conditions precedent to admission" rather than "factors." State v. Matteson, 313 Neb. 435, 985 N.W.2d 1 (2023).

Pretrial notice of an intent to admit evidence under the residual hearsay exception is mandatory, and an adverse party's knowledge of a statement is not enough to satisfy the notice requirement. State v. Martinez, 306 Neb. 516, 946 N.W.2d 445 (2020).

In determining whether a statement is admissible under the residual exception to the hearsay rule, a court considers five factors: (1) a statement's trustworthiness, (2) the materiality of the statement, (3) the probative importance of the statement, (4) the interests of justice, and (5) whether notice was given to an opponent. In order for a statement to be admitted under the residual exception, the statement's proponent must notify the adverse party of his or her intent to offer the statement, as well as the particulars of the statement, sufficiently in advance of trial, not during trial, to provide the adverse party with a fair opportunity to prepare to meet it. State v. Castor, 262 Neb. 423, 632 N.W.2d 298 (2001).

Declarant's statement was inadmissible under subsection (22) of this section where record failed to establish declarant had personal knowledge regarding the subject matter of her testimony. State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993).

The residual hearsay exception is to be used rarely and only in exceptional circumstances. In connection with the residual hearsay exception, particularized guarantees of trustworthiness must be shown from the totality of the circumstances, which circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief. State v. Plant, 236 Neb. 317, 461 N.W.2d 253 (1990).

Under subsection (22) of this section, hearsay testimony may be admissible under certain conditions, provided adequate notice is given. The question of trustworthiness under subsection (22) of this section does not involve whether the witness is trustworthy, but, rather, involves whether the statement being reported by the witness is trustworthy. Although there is a distinction to be made between trustworthiness and credibility, the tests which are applied with regard to reviewing credibility must of necessity likewise apply with regard to trustworthiness. In re Estate of Severns, 217 Neb. 803, 352 N.W.2d 865 (1984).

6. Miscellaneous

Under subsection (17) of this section, certain published treatises, periodicals, or pamphlets may be admissible, but the foundational requirements must still be met. Jackson v. Brotherhood's Relief & Comp. Fund, 273 Neb. 1013, 734 N.W.2d 739 (2007).

Pursuant to subsection (23) of this section, reports may not be received in evidence for the purpose of a termination proceeding, nor relied upon by the court, unless they have been admitted without objection or brought within the provisions of this section as an exception to the hearsay rule. In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003).

Standard medical texts and other authorities may be used for the purpose of impeaching, contradicting, or discrediting a witness through cross-examination or during rebuttal testimony; however, such cannot be used as independent evidence of the opinions and theories advanced by the parties. Stang-Starr v. Byington, 248 Neb. 103, 532 N.W.2d 26 (1995).

Under subsection (7) of this section, admission into evidence of "records, reports, statements or data compilations made by a public official or agency of facts required to be observed and recorded pursuant to a duty imposed by law" does not apply to investigative reports prepared by, or orders and determinations of probable cause issued by, the Nebraska Equal Opportunity Commission. Humphrey v. Nebraska Public Power Dist., 243 Neb. 872, 503 N.W.2d 211 (1993).

Facts of the case held to be sufficient to place young child's statement as within the hearsay exceptions. State v. Roy, 214 Neb. 204, 333 N.W.2d 398 (1983).

Taped interviews of an accused by a psychiatrist while the accused was under the influence of an inhibition-reducing drug in which the accused described observations of the crime charged did not fall within this exception. State v. Rowe, 210 Neb. 419, 315 N.W.2d 250 (1982).

Somewhat similar provision in prior section construed. Laux v. Robinson, 195 Neb. 601, 239 N.W.2d 786 (1976).

Under the circumstances surrounding alleged statements made by the declarant while sleeping, the statements, as testified to by the declarant's sibling, were not excited utterances admissible under subsection (1) of this section and did not contain sufficient indicia of reliability to be admissible under subsection (23) of this section. In re Interest of Jamie P., 12 Neb. App. 261, 670 N.W.2d 814 (2003).

Pursuant to subsection (17) of this section, a videotape may be admissible pursuant to the learned treatise exception to the hearsay rule provided that sufficient foundation is laid for its admission. Hill v. Hill, 10 Neb. App. 570, 634 N.W.2d 811 (2001).

Pursuant to the language of Nebraska's learned treatise exception to the hearsay rule, a learned treatise is only admissible in conjunction with testimony by an expert witness. Hill v. Hill, 10 Neb. App. 570, 634 N.W.2d 811 (2001).

The proper foundation for admitting evidence as past recollection recorded under subsection (4) of this section should consist of a showing that (1) the witness has no present recollection of the facts, (2) the witness' memory is not refreshed upon reference to the document, (3) the document is an original memorandum made or adopted by the witness from personal observation, (4) the document was prepared or adopted by the witness contemporaneously with the event and was an accurate recording of the occurrence, and (5) the substance of the proffered writing is otherwise admissible. State v. Cervantes, 3 Neb. App. 95, 523 N.W.2d 532 (1994).

27-804. Rule 804. Hearsay exceptions; enumerated; declarant unavailable; unavailability, defined.

(1) Unavailability as a witness includes situations in which the declarant:

(a) Is exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of his statement; or

(b) Persists in refusing to testify concerning the subject matter of his statement despite an order of the judge to do so; or

(c) Testifies to lack of memory of the subject matter of his statement; or

(d) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(e) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.

A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.

(2) Subject to the provisions of section 27-403, the following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(a) Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or a different proceeding, at the instance of or against a party with an opportunity to develop the testimony by direct, cross, or redirect examination, with motive and interest similar to those of the party against whom now offered;

(b) A statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death;

(c) A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement;

(d)(i) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (ii) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared; or

(e) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact, (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. A statement may not be admitted under this exception unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

Source:Laws 1975, LB 279, § 58.

Annotations

1. Unavailability determination

2. Notice of unavailability

3. Admissibility of statements

4. Residual hearsay

5. Miscellaneous

1. Unavailability determination

Pursuant to subdivision (2)(c) of this section, a trial court cannot rely simply on the State's assurances of unavailability or on the declarant's invocation of the privilege against self-incrimination and the failure to call the declarant to testify as a result. Instead, before a declarant may be excused as unavailable based on a claim of privilege, the declarant must appear at trial, assert the privilege, and have that assertion approved by the trial judge. In addition, the witness must be exempted from testifying by a ruling of the court. State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).

When considering whether a good faith effort to procure a witness has been made under subdivision (1)(e) of this section, the proper inquiry is whether the means utilized by the proponent prior to trial were reasonable, not whether other means remain available at the time of trial or whether additional steps might have been undertaken. State v. Trice, 292 Neb. 482, 874 N.W.2d 286 (2016).

This section requires that when a witness appears at trial but refuses to testify, the trial court must order the witness to testify before determining that the witness is unavailable for trial. State v. Kitt, 284 Neb. 611, 823 N.W.2d 175 (2012).

The burden to establish a declarant's unavailability is on the party seeking to introduce the declarant's deposition testimony under the hearsay exception for deposition testimony of an unavailable witness. Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007).

The determination whether a witness is unavailable to appear at trial and give testimony, for purposes of the hearsay exception for deposition testimony of an unavailable witness, is within the discretion of the trial court. Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007).

Where the appellant submitted an insufficient record for the appellate court to review the trial court's alleged error in admitting deposition testimony under the unavailable witness exception, the trial court's ruling was affirmed because the appellate court had no way of knowing whether an expert's deposition testimony was cumulative or whether other evidence sustained the judgment. Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007).

Under subsection (1)(b) of this section, where it was clear from the record that a witness was intent on continuing to refuse the court's repeated requests to testify and that there was no sanction available that would compel the witness to testify because the witness was already serving a lengthy sentence, it was not a judicial abuse of discretion to conclude that the witness was unavailable, even though the court's instruction to testify was not couched in the specific language of an "order". State v. McHenry, 250 Neb. 614, 550 N.W.2d 364 (1996).

Child victims of abuse may be unavailable for purposes of the residual hearsay exception due to the trauma resulting from the abuse. State v. Plant, 236 Neb. 317, 461 N.W.2d 253 (1990).

The party seeking to introduce hearsay evidence pursuant to this section's exception must show that diligence was used to locate the witness and that the witness is unavailable. It is within the sound discretion of the trial court to determine whether the proponent has met this burden. State v. Jordan, 229 Neb. 563, 427 N.W.2d 796 (1988).

A witness is not unavailable under subsection (1)(e) of this section unless the prosecutorial authorities have made a good faith effort to obtain the witness' presence at trial. State v. Carter, 226 Neb. 636, 413 N.W.2d 901 (1987).

The requirement of unavailability for the admission of hearsay testimony under this section will not be regarded as satisfied if the proponent of the evidence has caused the unavailability. State v. Wiley, 223 Neb. 835, 394 N.W.2d 641 (1986).

A prerequisite to the admission of hearsay statements into evidence under these exceptions to the rule against hearsay is that the proponent of the statement must make a showing that the declarant is unavailable as a witness. It is within the discretion of the trial court to determine whether the unavailability of the witness has been shown. State v. Bothwell, 218 Neb. 395, 355 N.W.2d 506 (1984).

Testimony given by a witness at a prior trial is not to be considered hearsay if the declarant is unavailable as a witness. State v. Evans, 212 Neb. 476, 323 N.W.2d 106 (1982).

Pursuant to subsection (2)(a) of this section, the occurrence witness who lived in another state, and thus outside the subpoena power of the court, was unavailable to testify for the purposes of this section. The definition of "unavailability" in Neb. Ct. R. of Discovery 32(a)(3)(B) does not create different conditions for availability than subsection (1)(e) of this section. Burke v. Harman, 6 Neb. App. 309, 574 N.W.2d 156 (1998).

2. Notice of unavailability

An adverse party's knowledge of a statement is not enough to satisfy the notice requirement of subsection (2)(e) of this section. The proponent of the evidence must provide notice before trial to the adverse party of his or her intentions to use the statement to take advantage of the residual hearsay exception under subsection (2)(e) of this section. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

It is not enough that the adverse party is aware of the unavailable declarant's statement; the proponent of the evidence must provide notice to the adverse party of his or her intentions to use the statement in order to take advantage of the hearsay exception in subsection (2)(e) of this section. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).

Subsection (2)(e) of this section is not a firmly rooted hearsay exception for Confrontation Clause purposes. State v. Sheets, 260 Neb. 325, 618 N.W.2d 117 (2000).

It is not enough that the adverse party is aware of an unavailable declarant's statement; the proponent of the evidence must provide notice to the adverse party of his intention to use the statement in order to take advantage of hearsay exception in subsection (2)(e) of this section. Drew v. Walkup, 240 Neb. 946, 486 N.W.2d 187 (1992).

Under subsection (2)(e) of this section, it is not enough that the adverse party is aware of the unavailable declarant's statement; the proponent of the evidence must provide notice to the adverse party of his intentions to use the statement at trial. State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).

Section 27-804(2)(e), R.R.S.1943, requires actual notice of the intent to use the out-of-court statement. State v. Leisy, 207 Neb. 118, 295 N.W.2d 715 (1980).

3. Admissibility of statements

Statements made during plea negotiations are not against penal interest when the defendant is told the statements will not be used against him or her in any form. State v. McGee, 282 Neb. 387, 803 N.W.2d 497 (2011).

Neb. Ct. R. Disc. section 6-332 creates an exception to the hearsay rule as it applies to depositions, and a deposition need no longer satisfy the requirements of subdivision (2)(a) of this section to be admissible under the rules of discovery. Walton v. Patil, 279 Neb. 974, 783 N.W.2d 438 (2010).

Subsection (2)(c) of this section uses the term "statement" in a narrow sense to refer to a specific declaration or remark incriminating the speaker and not more broadly to refer to the entire narrative portion of the speaker's confession. To the extent subsection (2)(c) of this section encompasses inherently unreliable statements, it is not a firmly rooted hearsay exception for purposes of Confrontation Clause analysis. State v. Sheets, 260 Neb. 325, 618 N.W.2d 117 (2000).

Testimony falling within the parameters of subsection (2)(a) of this section is admissible because the opportunity to cross-examine, the administering of an oath, the solemnity of the occasion, and the accuracy of modern methods of recording testimony all combine to give former testimony a high degree of reliability. Nickell v. Russell, 260 Neb. 1, 614 N.W.2d 349 (2000).

Subsection (2)(a) of this section is a firmly rooted hearsay exception, and therefore testimony admitted thereunder does not violate the Confrontation Clause of the U.S. or Nebraska Constitution. State v. Carter, 255 Neb. 591, 586 N.W.2d 818 (1998).

An appellate court will affirm the trial court's ruling on whether evidence is admissible under subsection (2)(e) of this section unless the trial court has abused its discretion. State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998).

Subsection (2)(a) of this section is a firmly rooted hearsay exception. State v. Allen, 252 Neb. 187, 560 N.W.2d 829 (1997).

Per subsection (2)(a) of this section, the exception to the hearsay rule does not exclude depositions taken in compliance with law if the declarant is unavailable as a witness. The unavailability requirement of this statute must be read into Neb. Ct. R. of Discovery 32 (rev. 1996) so the Nebraska discovery rules do not create an additional exception to the hearsay rule. Menkens v. Finley, 251 Neb. 84, 555 N.W.2d 47 (1996).

In determining whether a statement is admissible under this section, a court considers five factors: (1) the statement's trustworthiness, (2) materiality of the statement, (3) probative importance of the statement, (4) interests of justice, and (5) whether notice of the statement's prospective use was given to the opponent. Under this section, a court must make a preliminary inquiry to determine whether a declarant had personal knowledge regarding the subject matter of the statement that is sought to be introduced pursuant to the residual exception to the hearsay rule. State v. McBride, 250 Neb. 636, 550 N.W.2d 659 (1996).

To be admissible as a statement against the declarant's penal interest, pursuant to subsection (2)(c) of this section, the proponent of the evidence must establish that the declarant is unavailable, and that the statement is against the declarant's penal interests. If the statement implicates a third party in the alleged crime, the proponent must also prove that the statement was trustworthy. State v. Hughes, 244 Neb. 810, 510 N.W.2d 33 (1993).

In determining whether evidence is admissible under subsection (2)(e) of this section, the residual exception to the hearsay rule, a court considers (1) a statement's trustworthiness, (2) the probative importance of the statement, (3) the materiality of the statement, (4) the interests of justice, and (5) whether notice of the statement's prospective use was given to opponent. An appellate court will affirm the trial court's ruling unless the trial court has abused its discretion. State v. Toney, 243 Neb. 237, 498 N.W.2d 544 (1993).

The essential element to the admission of a statement as a dying declaration pursuant to subsection (2)(b) of this section is that declarant be conscious of approaching death at the time of the making of the statement; although this is best shown by express communication of declarant to that effect, circumstances surrounding declarant's death may be sufficient. Declarant's statement was inadmissible under subsection (2)(e) of this section where record failed to establish declarant had personal knowledge regarding the subject matter of her testimony. State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993).

A wife's statement is not against her pecuniary interest because the statement might tend to incriminate her husband, exposing him to criminal prosecution and possible incarceration, resulting in loss of support previously provided by her husband. State v. Johnson, 236 Neb. 831, 464 N.W.2d 167 (1991).

A statement by a 4-year-old witness regarding child abuse and murder made in response to police questioning nearly 2 days after the events in question constitutes an excited utterance. The statement is also admissible under the residual hearsay exception. State v. Plant, 236 Neb. 317, 461 N.W.2d 253 (1990).

Statements made by decedent to her attorney in course of professional consultation held admissible under this section but not a statement made by decedent to a friend which had no equivalent guarantees of trustworthiness. State v. Beam, 206 Neb. 248, 292 N.W.2d 302 (1980).

The contents of a conversation that included what may have been a general statement of regret were not admissible under the exception to the hearsay rule set out in section 27-804(2)(c), R.R.S.1943. State v. Matthews, 205 Neb. 709, 289 N.W.2d 542 (1980).

Pursuant to subsection (2) of this section, an alleged verbal cancellation or discharge of a promissory note cannot be said to be against a decedent's pecuniary interest, because there was no evidence of discharge by one of the physical acts, as detailed in Uniform Commercial Code section 3-604(a)(i), nor was there a signed writing, as detailed in section 3-604(a)(ii), offered or received into evidence which purported to discharge the debt owed to the decedent. Haynes v. Dover, 17 Neb. App. 640, 768 N.W.2d 140 (2009).

4. Residual hearsay

Hearsay rulings under the residual hearsay exception are reviewed on appeal for an abuse of discretion. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

In determining admissibility under subsection (2)(e) of this section, a court must examine the circumstances surrounding the declaration in issue and may consider a variety of factors affecting trustworthiness of a statement. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).

In determining whether a statement is admissible under subsection (2)(e) of this section, the residual exception to the hearsay rule, a court considers five factors: a statement's trustworthiness, materiality of the statement, probative importance of the statement, interests of justice, and whether notice of the statement's prospective use as evidence was given to an opponent. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).

The trial court did not abuse its discretion in concluding that out-of-court statements were not sufficiently trustworthy to fall within the residual exception to the hearsay rule where the declarant was in police custody when the statements were made. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).

The court must make a preliminary inquiry to determine whether a declarant has personal knowledge regarding the subject matter of the statement that is sought to be introduced pursuant to subsection (2)(e) of this section, the residual exception to the hearsay rule. State v. Toney, 243 Neb. 237, 498 N.W.2d 544 (1993).

The residual hearsay exception is to be used rarely and only in exceptional circumstances. In connection with the residual hearsay exception, particularized guarantees of trustworthiness must be shown from the totality of the circumstances, which circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief. State v. Plant, 236 Neb. 317, 461 N.W.2d 253 (1990).

It is the duty of the proponent of a will, in the first instance, to make a prima facie case as to testamentary capacity; it then devolves upon the contestant to overcome the presumption arising therefrom, after which the burden of proving testamentary capacity by a preponderance of the evidence devolves upon the proponent. Under the residual hearsay exception, the proponent of the evidence has the burden of establishing each of the conditions of admissibility imposed by the rule. In re Estate of Schoch, 209 Neb. 812, 311 N.W.2d 903 (1981).

5. Miscellaneous

Whether a particular remark within a larger narrative is truly self-inculpatory—such that a reasonable person would make the statement only if believed to be true—is a fact-intensive inquiry requiring careful examination of all the circumstances surrounding the criminal activity involved. When considering statements of a mixed nature, the question is whether the statements have a net exculpatory versus net inculpatory effect. State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).

A “statement” within the meaning of subdivision (2)(c) of this section is a specific individual statement that a proponent offers into evidence rather than the entire narrative of which the statement is a part; subdivision (2)(c) uses the term “statement” in a narrow sense to refer to a specific declaration or remark incriminating the speaker and not more broadly to refer to the entire narrative portion of the speaker’s confession. State v. Phillips, 286 Neb. 974, 840 N.W.2d 500 (2013).

A defendant's due process rights are protected by the language of this section. State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003).

In determining whether there are corroborating circumstances which clearly indicate the trustworthiness of a statement tending to expose the declarant to criminal liability and offered to exculpate the accused, a court should examine all circumstances surrounding the making of the statement, as well as any other evidence which either supports or undermines its veracity. State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003).

In determining whether "other reasonable means" are available to secure the appearance of a witness so as to admit or not admit the deposition testimony of the witness, the court may consider the stakes in the litigation, the relative resources of the parties, the importance of the declarant's statement in the suit, the foreseeability of the need for the statement, the relative expense encountered in securing the declarant's trial or deposition testimony, the financial hardship on the proponent to secure the witness' personal appearance, and the hostility or animosity of the witness whose testimony is sought. Maresh v. State, 241 Neb. 496, 489 N.W.2d 298 (1992).

The opportunity to cross-examine was not unduly denied because questions the deposition witness refused to answer were about collateral matters and did not relate to the subject of the witness' direct examination. Burke v. Harman, 6 Neb. App. 309, 574 N.W.2d 156 (1998).

27-805. Rule 805. Hearsay within hearsay.

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

Source:Laws 1975, LB 279, § 59.

Annotations

Police complaint report admitted into evidence was not hearsay within hearsay because each part of the combined statements conformed with an exception to the hearsay rule. State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).

A child sexual assault victim's statements, as relayed to a doctor by a forensic examiner and testified to by a doctor, were admissible even though they were double hearsay because each part of the combined statements conformed with an exception to the hearsay rule. State v. Edwards, 28 Neb. App. 893, 949 N.W.2d 799 (2020).

27-806. Rule 806. Attacking and supporting credibility of declarant; opportunity to explain; examine declarant.

When a hearsay statement or a statement defined in subdivision (4)(b)(iii), (iv), or (v) of section 27-801 has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, is not subject to any requirement that he may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine him on the statement as if under cross-examination.

Source:Laws 1975, LB 279, § 60.

Annotations

Under this section, if a hearsay statement is admitted in evidence, a party may discredit the out-of-court declarant by utilizing recognized methods of impeachment. State v. Morrow, 273 Neb. 592, 731 N.W.2d 558 (2007).

Under this section, the declarant of a hearsay statement may be impeached by the introduction of a prior or subsequent statement made by the declarant that is inconsistent with the hearsay statement already admitted at trial. State v. Morrow, 273 Neb. 592, 731 N.W.2d 558 (2007).

27-901. Rule 901. Requirement of authentication or identification; general provision; illustrations and examples; enumerated.

(1) The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

(2) By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(a) Testimony that a matter is what it is claimed to be;

(b) Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation;

(c) Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated;

(d) Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances;

(e) Identification of a voice, whether heard first-hand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker;

(f) Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (i) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (ii) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone;

(g) Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept;

(h) Evidence that a document or data compilation, in any form, (i) is in such condition as to create no suspicion concerning its authenticity, (ii) was in a place where it, if authentic, would likely be, and (iii) has been in existence thirty years or more at the time it is offered;

(i) Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result; and

(j) Any method of authentication or identification provided by act of the Legislature or by other rules adopted by the Supreme Court which are not in conflict with laws governing such matters.

Source:Laws 1975, LB 279, § 61.

Annotations

1. Authentication generally

2. Particular cases

3. Miscellaneous

1. Authentication generally

A chief financial officer's testimony about exhibits satisfied the authentication requirement by providing sufficient information to show that the documents were what they purported to be. AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212 (2020).

This section requires authentication or identification of evidence sufficient to support a finding that a matter is what the proponent claims as a condition precedent for admission. But authentication or identification under this section is not a high hurdle. A proponent is not required to conclusively prove the genuineness of the evidence or to rule out all possibilities inconsistent with authenticity. If the evidence is sufficient to support a finding that the evidence is what it purports to be, the rule is satisfied. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).

This section does not impose a particularly high hurdle. If foundation is laid for the business records exception, then the authentication requirements of this section are also met. State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).

A proponent of evidence is not required to conclusively prove the genuineness of the evidence or to rule out all possibilities inconsistent with authenticity; if the proponent's showing is sufficient to support a finding that the evidence is what it purports to be, the proponent has satisfied the requirement of the authentication rule. State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011).

A proponent may authenticate a document under subsection (2)(a) of this section by the testimony of someone with personal knowledge that it is what it is claimed to be, such as a person familiar with its contents. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

This section does not impose a high hurdle for authentication or identification. A proponent of evidence is not required to conclusively prove the genuineness of the evidence or to rule out all possibilities inconsistent with authenticity. If the proponent's showing is sufficient to support a finding that the evidence is what it purports to be, the proponent has satisfied the requirement of subsection (1) of this section. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Under subsection (2)(d) of this section, a proponent may authenticate a document by circumstantial evidence, or its "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Unlike its counterpart in the Federal Rules of Evidence, section 27-104 requires a court to first determine whether evidence is admissible under the hearsay rules before considering whether it is properly authenticated. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

A document is properly authenticated by evidence sufficient to support a finding that the matter in question is what its proponent claims. State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).

A document may be authenticated under subsection (2)(a) of this section by testimony by one with personal knowledge that it is what it is claimed to be, such as a person familiar with its contents. State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).

A showing of specific authorship is not always necessary to authenticate a document. State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).

Proper authentication may be attained by evidence of appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances, sufficient to support a finding that the matter in question is what it is claimed to be. State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).

The authentication requirement does not demand that the proponent of a piece of evidence conclusively demonstrate the genuineness of his or her article, but only that he or she make a showing sufficient to support a finding that the matter in question is what its proponent claims. State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).

Even if direct, eyewitness testimony is absent, the contents of photographic evidence itself, together with such circumstantial or indirect evidence as bears upon the issue, may serve to explain and authenticate the evidence sufficiently to justify its admission pursuant to this section. State v. Anglemyer, 269 Neb. 237, 691 N.W.2d 153 (2005).

This section incorporates two traditional models of authenticating photographic evidence: the illustrative or "pictorial testimony" model, and the "silent witness" model. Under the illustrative model, a photograph, motion picture, videotape, or other recording is viewed merely as a graphic portrayal of oral testimony and is admissible only when a witness testifies that it is a correct and accurate representation of facts that the witness personally observed. Under the "silent witness" theory of admission, photographic evidence may draw its verification not from any witness who has actually viewed the scene portrayed, but from other evidence which supports the reliability of the photographic product. State v. Anglemyer, 269 Neb. 237, 691 N.W.2d 153 (2005).

If the proponent's showing is sufficient to support a finding that the evidence is what it purports to be, the proponent has satisfied the requirement of this section. State v. Wynne, 24 Neb. App. 377, 887 N.W.2d 515 (2016).

This section does not impose a high hurdle for authentication or identification. State v. Wynne, 24 Neb. App. 377, 887 N.W.2d 515 (2016).

A document is authenticated when evidence is presented that is sufficient to support a finding that the matter in question is what its proponent claims. State v. Taylor, 12 Neb. App. 58, 666 N.W.2d 753 (2003).

Requirements of "authentication" are governed by this section. A document is authenticated when evidence is presented that is sufficient to support a finding that the matter in question is what its proponent claims. State v. Miller, 11 Neb. App. 404, 651 N.W.2d 594 (2002).

2. Particular cases

The identity of a participant in a telephone conversation may be established by circumstantial evidence, such as the circumstances preceding or following the telephone conversation. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).

The proponent of the text messages is not required to conclusively prove who authored the messages; the possibility of an alteration or misuse by another generally goes to weight, not admissibility. State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).

Pursuant to subsection (1) of this section, the possibility of an alteration or misuse by another of an e-mail address generally goes to weight, not admissibility. State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).

In a trial for attempted murder, assault, and other crimes, the defendant's cousin was qualified to identify the defendant's handwriting in a notebook with information about types of guns where the cousin was familiar with the defendant's handwriting from the years they were friends and went to school together. State v. Aguilar, 268 Neb. 411, 683 N.W.2d 349 (2004).

A husband's familiarity with his wife's handwriting, acquired during the course of the marriage, satisfies the foundational requirements of this section. State v. Tyma, 264 Neb. 712, 651 N.W.2d 582 (2002).

Note found on defendant at time of arrest, which defendant identifies as "a note I wrote," may be admitted under subsection (2) of this section, which provides that an item of evidence may be authenticated or identified by testimony that a matter is what it is claimed to be. State v. Patman, 227 Neb. 206, 416 N.W.2d 582 (1987).

The purpose of this section is to require that evidence must be sufficient to support a finding that the matter in question is what its proponent claims. Making certain that the defendants uttered the exact words used in the assaults was not critical in ensuring that the voices the victim heard when the assaults took place were those of the defendants. State v. Ferris, 212 Neb. 835, 326 N.W.2d 185 (1982).

Where evidence showed that the defendant used his cell phone during the month of the murder; that in the period prior to the murder, there was contact between the cell phone attributed to the defendant and the telephone numbers of various family members and the defendant's girlfriend; that there was no evidence to suggest that anyone other than the defendant was using the cell phone in question at the time of the murder; that the content of the text messages and sequence of subsequent call contacts between the cell phone attributed to the defendant and the victim's cell phone were consistent with the timeline established for the murder; and that all outgoing contacts by the cell phone attributed to the defendant ceased just shortly before the murder occurred, the trial court did not abuse its discretion in overruling the defendant's objections with respect to his authorship of the text messages attributed to him. State v. Wynne, 24 Neb. App. 377, 887 N.W.2d 515 (2016).

3. Miscellaneous

A court must determine whether there is sufficient foundation evidence for the admission of physical evidence on a case-by-case basis. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Because authentication rulings are necessarily fact specific, a trial court has discretion to determine whether evidence has been properly authenticated. We review a trial court's ruling on authentication for abuse of discretion. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

The plain language of this section is directory rather than mandatory. State v. Anglemyer, 269 Neb. 237, 691 N.W.2d 153 (2005).

In order to establish evidence's sufficient probative force to prove an earlier conviction for the purpose of sentence enhancement, the evidence must, with some trustworthiness, reflect a court's act of rendering judgment. State v. Linn, 248 Neb. 809, 539 N.W.2d 435 (1995).

27-902. Rule 902. Self-authentication; when.

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

(1) A document bearing a seal purporting to be that of the United States, or of any state, district, commonwealth, territory, or insular possession thereof, or the Panama Canal Zone or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution;

(2) A document purporting to bear the signature in his or her official capacity of an officer or employee of any entity included in subdivision (1) of this section, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine;

(3) A document purporting to be executed or attested in his or her official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (a) of the executing or attesting person, or (b) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the judge may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification;

(4) A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with subdivision (1), (2), or (3) of this section or complying with any Act of Congress or the Legislature or rule adopted by the Supreme Court of Nebraska which are not in conflict with laws governing such matters;

(5) Books, pamphlets, or other publications purporting to be issued by public authority;

(6) Printed materials purporting to be newspapers or periodicals;

(7) Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin;

(8) Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments;

(9) Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law;

(10) Any signature, document, or other matter declared by Act of Congress and the laws of the State of Nebraska to be presumptively or prima facie genuine or authentic;

(11)(a) The original or a copy of a domestic record that meets the requirements of subdivision (6) of section 27-803, as shown by a certification of the custodian or another qualified person.

(b) Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record and must make the record and certification available for inspection so that the party has a fair opportunity to challenge them on the ground that the sources of information or the method or circumstances of preparation indicate a lack of trustworthiness;

(12) In a civil case, the original or a copy of a foreign record that meets the requirements of subdivision (11)(a) of this section, modified as follows: The certification must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of subdivision (11)(b) of this section;

(13) A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of subdivision (11)(a) or (12) of this section. The proponent must also meet the notice requirements of subdivision (11)(b) of this section; or

(14) Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of subdivision (11)(a) or (12) of this section. The proponent must also meet the notice requirements of subdivision (11)(b) of this section.

Source:Laws 1975, LB 279, § 62; Laws 2023, LB50, § 4.

Cross References

Ordinances of city of the primary class, see section 15-402.

Annotations

While not a high hurdle, it is still the burden of the proponent of the evidence to provide the court with sufficient evidence that the document or writing is what it purports to be.- VKGS v. Planet Bingo, 309 Neb. 950, 962 N.W.2d 909 (2021).

Under subsection (7) of this section, distinctive labels and brands are prima facie evidence of ownership or origin. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Under subsection (4) of this section, an out-of-state record of trial proceedings is self-authenticating if the document is authorized by law to be filed in court and its accuracy has been certified by court reporting personnel in compliance with a rule of the state's highest court which is harmonious with the Nebraska Supreme Court's corresponding rule of practice and procedure. State v. King, 272 Neb. 638, 724 N.W.2d 80 (2006).

Copies of judicial records related to a defendant's conviction and sentencing in another state that are certified by a deputy clerk for the clerk of the district court in that state as a true and correct copy of the original and impressed with the court's official seal are self-authenticating and do not require extrinsic evidence of authenticity for admission under this section. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).

No extrinsic authentication is required for admissibility of a copy of an official record certified by its authorized custodian, a court reporter, who has complied with the rules of the Supreme Court as to its certification. State v. Benzel, 220 Neb. 466, 370 N.W.2d 501 (1985).

The adoption of this section repealed section 25-1286 and therefor governs the admissibility of a court decree from another state. State v. Munn, 212 Neb. 265, 322 N.W.2d 429 (1982).

27-903. Rule 903. Subscribing witness testimony; when necessary.

The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.

Source:Laws 1975, LB 279, § 63.

27-1001. Rule 1001. Definitions; writings and recordings, photographs, original, and duplicate.

For purposes of this article the following definitions are applicable:

(1) Writings and recordings consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation;

(2) Photographs include still photographs, X-ray films, video tapes, and motion pictures;

(3) An original of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An original of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an original; and

(4) A duplicate is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original.

Source:Laws 1975, LB 279, § 64.

Annotations

A bank photocopy of a processed check qualifies as a duplicate under subsection (4) of this section. Equitable Life v. Starr, 241 Neb. 609, 489 N.W.2d 857 (1992).

27-1002. Rule 1002. Requirement of original; exception.

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress or of the Legislature of the State of Nebraska or by other rules adopted by the Supreme Court of Nebraska.

Source:Laws 1975, LB 279, § 65.

Annotations

This section is a rule of preference for the production of the original of a writing, recording, or photograph when the contents of the item are sought to be proved. Richter v. City of Omaha, 273 Neb. 281, 729 N.W.2d 67 (2007).

This "original writings" rule, which is sometimes inaccurately referred to as the "best evidence" rule, applies only if the party offering the evidence is seeking to prove the contents of a writing, recording, or photograph. State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).

The best evidence rule, which might more properly be called the "original writing" rule or, more correctly, the rule for "production of an original writing or document", is in reality a rule of preference for the production of the original of a writing, recording, or photograph when the contents of the item are sought to be proved. The original writing or "original document" rule does not set up a hierarchy for admissibility of evidence, but applies when a party seeks to prove material contents of a writing, recording, or photograph. The purpose of this section is the prevention of fraud, inaccuracy, mistake, or mistransmission of critical facts contained in a writing, recording, or photograph when its contents are an issue in a proceeding. By its terms, this section applies to proof of the contents of a recording. State v. Kula, 260 Neb. 183, 616 N.W.2d 313 (2000).

The original document rule does not set up a hierarchy for admissibility of evidence, but applies when a party seeks to prove material contents of a writing, recording, or photograph. The purpose of this section is the prevention of fraud, inaccuracy, mistake, or mistransmission of critical facts contained in a writing, recording, or photograph when its contents are at issue in a proceeding. Equitable Life v. Starr, 241 Neb. 609, 489 N.W.2d 857 (1992).

Not error to admit in evidence a transcription of a tape recording which was itself in evidence. State v. Martin, 198 Neb. 811, 255 N.W.2d 844 (1977).

By its terms, this section applies to proof of the contents of a recording. Chevalier v. Metropolitan Util. Dist., 24 Neb. App. 874, 900 N.W.2d 565 (2017).

The best evidence rule is a rule of preference for the production of the original of a writing, recording, or photograph when the contents of the item are sought to be proved. Chevalier v. Metropolitan Util. Dist., 24 Neb. App. 874, 900 N.W.2d 565 (2017).

The purpose of the best evidence rule is the prevention of fraud, inaccuracy, mistake, or mistransmission of critical facts contained in a writing, recording, or photograph when its contents are an issue in a proceeding. Chevalier v. Metropolitan Util. Dist., 24 Neb. App. 874, 900 N.W.2d 565 (2017).

The best evidence rule, also known as the original document rule, states that the original writing, recording, or photograph is required to prove the content of that writing, recording, or photograph. Flodman v. Robinson, 22 Neb. App. 943, 864 N.W.2d 716 (2015).

27-1003. Rule 1003. Admissibility of duplicate; when.

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

Source:Laws 1975, LB 279, § 66.

Annotations

A duplicate writing, as defined by subdivision (4) of section 27-1001, is admissible under this section to the same extent as an original writing without a showing that the original is lost or destroyed or is otherwise unavailable under the circumstances expressed in section 27-1004 regarding a lost or destroyed original. Equitable Life v. Starr, 241 Neb. 609, 489 N.W.2d 857 (1992).

The burden of raising an issue as to the authenticity of the original or the unfairness of the circumstances is on the party opposing admission. State v. Frederiksen, 224 Neb. 653, 400 N.W.2d 225 (1987).

Duplicates of defendant's bank checks were properly admissible where identified by bank official and authenticity of original checks not challenged. State v. Costello, 199 Neb. 43, 256 N.W.2d 97 (1977).

27-1004. Rule 1004. Admissibility of other evidence of contents; when.

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:

(1) All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

(2) No original can be obtained by any available judicial process or procedure; or

(3) At a time when an original was under the control of the party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and he does not produce the original at the hearing; or

(4) The writing, recording, or photograph is not closely related to a controlling issue.

Source:Laws 1975, LB 279, § 67.

Annotations

The language of this section, which carves out exceptions to the best evidence rule, makes exceptions for only specific instances of unavailability, such as where the original has been lost or destroyed, cannot be obtained by judicial means, or is not closely related to a controlling issue. State v. Kula, 260 Neb. 183, 616 N.W.2d 313 (2000).

Absent evidence of bad faith on the part of university officials, secondary evidence of test scores is admissible where it is shown that the original writings have been lost or destroyed. State ex rel. Mercurio v. Board of Regents, 213 Neb. 251, 329 N.W.2d 87 (1983).

The existence of a written employment contract, alleged by plaintiff and denied by defendant, was properly a question for the jury. Montgomery v. Quantum Labs, Inc., 198 Neb. 160, 251 N.W.2d 892 (1977).

27-1005. Rule 1005. Public records; contents, how proved.

The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with section 27-902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.

Source:Laws 1975, LB 279, § 68.

27-1006. Rule 1006. Voluminous writings, recordings, or photographs; summaries; availability; orders.

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The judge may order that they be produced in court.

Source:Laws 1975, LB 279, § 69.

Annotations

Requirements for admission of an exhibit into evidence pursuant to Neb. Evid. R. 1006 set out this case. Crowder v. Aurora Co-op Elev. Co., 223 Neb. 704, 393 N.W.2d 250 (1986).

This section had no application to an exhibit listing persons for whom building moving services had been performed with enumeration of dates and charges, but oral testimony by one who had personal knowledge of the facts laid appropriate foundation for its admission. Groenewold v. Building Movers, Inc., 197 Neb. 187, 247 N.W.2d 629 (1976).

27-1007. Rule 1007. Contents of writings, recordings, or photographs; how proved.

Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by his written admission, without accounting for the nonproduction of the original.

Source:Laws 1975, LB 279, § 70.

27-1008. Rule 1008. Functions of judge and jury.

When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the judge to determine. However, when an issue is raised (1) whether the asserted writing ever existed, or (2) whether another writing, recording, or photograph produced at the trial is the original, or (3) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.

Source:Laws 1975, LB 279, § 71.

Annotations

The existence of a written employment contract, alleged by plaintiff and denied by defendant, was properly a question for the jury. Montgomery v. Quantum Labs, Inc., 198 Neb. 160, 251 N.W.2d 892 (1977).

27-1101. Rule 1101. Applicability of rules; courts; proceedings generally; rules inapplicable; grand jury, miscellaneous proceedings; rules applicable in part.

(1) The Nebraska Evidence Rules apply to the following courts in the State of Nebraska: Supreme Court, Court of Appeals, district courts, county courts, and juvenile courts. The word judge when used in the rules shall mean any judge of any court to which the rules apply or other officer who is authorized by statute to hold any hearing to which the rules apply.

(2) The rules apply generally to all civil and criminal proceedings, including contempt proceedings except those in which the judge may act summarily.

(3) The rules with respect to privileges apply at all stages of all actions, cases, and proceedings.

(4) The rules, other than those with respect to privileges, do not apply in the following situations:

(a) Proceedings before grand juries;

(b) Proceedings for extradition or rendition; preliminary examinations or hearings in criminal cases; sentencing, granting or revoking probation, or imposing custodial sanctions; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise;

(c) Contested cases before an administrative agency under the Administrative Procedure Act unless a party to the case requests that the agency be bound by the rules of evidence applicable in the district court; or

(d) Proceedings before the Nebraska Workers' Compensation Court or the Small Claims Court.

Source:Laws 1975, LB 279, § 72; Laws 1984, LB 13, § 46; Laws 1991, LB 732, § 70; Laws 2016, LB1094, § 1.

Cross References

Administrative Procedure Act, see section 84-920.

Annotations

1. Proceedings exempt from rules

2. Miscellaneous

1. Proceedings exempt from rules

In a criminal case, the Nebraska rules of evidence do not apply to suppression hearings. State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014).

Preliminary examinations or hearings in criminal cases are exempt from application of the evidence rules under subsection (4)(b) of this section. State v. Peterson, 280 Neb. 641, 788 N.W.2d 560 (2010).

The Nebraska Workers' Compensation Court is not bound by the usual common-law or statutory rules of evidence. Sheridan v. Catering Mgmt., Inc., 252 Neb. 825, 566 N.W.2d 110 (1997).

Nebraska Evidence Rules do not apply in juvenile court dispositional hearings such as one to terminate parental rights. The requirements of due process control a proceeding to terminate parental rights and the type of evidence which may be used by the State in an attempt to prove that parental rights should be terminated. In re Interest of P.D., 231 Neb. 608, 437 N.W.2d 156 (1989).

The Nebraska Evidence Rules do not apply at a sentencing hearing. An affidavit may be used for purposes of sentencing if it is relevant to the sentence to be imposed. State v. Dillon, 222 Neb. 131, 382 N.W.2d 353 (1986).

Nebraska Evidence Rules do not apply to proceedings for the granting or revoking of probation. State v. Ozmun, 221 Neb. 481, 378 N.W.2d 170 (1985).

Statutory rules of evidence do not apply to, among other things, proceedings for extradition. In re Application of Mahan for Writ of Habeas Corpus, 211 Neb. 671, 319 N.W.2d 760 (1982).

The statutory rules of evidence, except those governing privilege, do not apply to proceedings for extradition. Dovel v. Adams, 207 Neb. 766, 301 N.W.2d 102 (1981).

The Board of Nursing is not bound by the law of evidence unless a party so requests. Scott v. State ex rel. Board of Nursing, 196 Neb. 681, 244 N.W.2d 683 (1976).

2. Miscellaneous

A suppression hearing is a preliminary hearing within the meaning of subdivision (4)(b) of this section. State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014).

The Nebraska Evidence Rules, sections 27-101 to 27-1103, do not apply in juvenile court dispositional hearings, such as one to terminate parental rights; however, they do provide guidance in determining the type of evidence which meets due process requirements. In re Interest of D.L.S., 230 Neb. 435, 432 N.W.2d 31 (1988).

27-1102. Rule 1102. Act, when effective.

These rules shall apply in all trials commenced after December 31, 1975.

Source:Laws 1975, LB 279, § 74.

27-1103. Rule 1103. Act, how cited.

These rules may be known and cited as the Nebraska Evidence Rules.

Source:Laws 1975, LB 279, § 73; Laws 2009, LB97, § 8; Laws 2020, LB881, § 5.

27-1201. Unanticipated outcome of medical care; civil action; health care provider or employee; use of certain statements and conduct; limitations.

(1) In any civil action brought by an alleged victim of an unanticipated outcome of medical care, or in any arbitration proceeding related to such civil action, any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence which are made by a health care provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim and which relate to the discomfort, pain, suffering, injury, or death of the alleged victim as a result of the unanticipated outcome of medical care shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest. A statement of fault which is otherwise admissible and is part of or in addition to any such communication shall be admissible.

(2) For purposes of this section, unless the context otherwise requires:

(a) Health care provider means any person licensed or certified by the State of Nebraska to deliver health care under the Uniform Credentialing Act and any health care facility licensed under the Health Care Facility Licensure Act. Health care provider includes any professional corporation or other professional entity comprised of such health care providers;

(b) Relative means a patient's spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, sister, stepbrother, stepsister, half brother, half sister, or spouse's parents. Relative includes persons related to the patient through adoptive relationships. Relative also includes any person who has a family-type relationship with the patient;

(c) Representative means a legal guardian, attorney, person designated to make health care decisions on behalf of a patient under a power of attorney, or any person recognized in law or custom as a patient's agent; and

(d) Unanticipated outcome means the outcome of a medical treatment or procedure that differs from the expected result.

Source:Laws 2007, LB373, § 1; Laws 2009, LB35, § 18.

Cross References

Health Care Facility Licensure Act, see section 71-401.

Uniform Credentialing Act, see section 38-101.

27-1301. Evidence of visual depiction of sexually explicit conduct; restrictions on care, custody, and control; Supreme Court; duties.

(1) In any judicial or administrative proceeding, any property or material that constitutes a visual depiction of sexually explicit conduct, as defined in section 28-1463.02, and which has a child, as defined in such section, as one of its participants or portrayed observers, shall remain constantly and continuously in the care, custody, and control of law enforcement, the prosecuting attorney, or the court having properly received it into evidence, except as provided in subsection (3) of this section.

(2) All courts and administrative agencies shall unequivocally deny any request by the defendant, his or her attorney, or any other person, agency, or organization, regardless of whether such defendant, attorney, or other person, agency, or organization is a party in interest or not, to acquire possession of, copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes a visual depiction of sexually explicit conduct, as defined in section 28-1463.02, and which has a child, as defined in such section, as one of its participants or portrayed observers, so long as the state makes the property or material reasonably available to the defendant in a criminal proceeding. Nothing in this section shall be deemed to prohibit the review of the proscribed materials or property by a federal court when considering a habeas corpus claim.

(3)(a) For purposes of this section, property or material are deemed to be reasonably available to a defendant if the state provides ample opportunity for inspection, viewing, examination, and analysis of the property or material, at a law enforcement or state-operated facility, to the defendant, his or her attorney, and any individual the defendant seeks to use for the purpose of furnishing expert testimony.

(b) Notwithstanding the provisions of this subsection, a court may order a copy of the property or material to be delivered to a person identified as a defense expert for the purpose of evaluating the evidence, subject to the same restrictions placed upon law enforcement. The defense expert shall return all copies and materials to law enforcement upon completion of the evaluation.

(4) On or before July 1, 2009, the Supreme Court shall adopt and promulgate rules and regulations regarding the proper control, care, custody, transfer, and disposition of property or material that constitutes a visual depiction of sexually explicit conduct, as defined in section 28-1463.02, and which has a child, as defined in such section, as one of its participants or portrayed observers, that has been received into evidence at any judicial or administrative proceeding. Among the issues addressed by these rules and regulations, the Supreme Court should devise procedures regarding the preparation and delivery of bills of exception containing evidence as described in this section, as well as procedures for storing, accessing, and disposing of such bills of exception after preparation and receipt.

Source:Laws 2009, LB97, § 22.