hearsay rule in Nebraska

2009COCONSPIRATOR EXCEPTION TO HEARSAY Hudson argues that the trial court committed reversible error when it allowed the State to offer testimony by Johnson under the coconspirator exception to the hearsay rule, § 27-801(4)(b). "`[B]efore 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. Gutierrez, 272 Neb. 995, 1018 , 726 N.W.2d 542, 565 (2007), quoting State v. Bobo, 198 Neb. 551 , 253 N.W.2d 857 (1977).

2009COCONSPIRATOR EXCEPTION TO HEARSAY Hudson argues that the trial court committed reversible error when it allowed the State to offer testimony by Johnson under the coconspirator exception to the hearsay rule, § 27-801(4)(b). "`[B]efore 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. Gutierrez, 272 Neb. 995, 1018 , 726 N.W.2d 542, 565 (2007), quoting State v. Bobo, 198 Neb. 551 , 253 N.W.2d 857 (1977).

2001App. 621, 616 N.W.2d 810 (2000), and State v. Martin, 239 Neb. 339 , 476 N.W.2d 536 (1991), or the hearsay exception for medical diagnosis and treatment, see Vacanti v. Master Electronics Corp., 245 Neb. 586 , 514 N.W.2d 319 (1994), and State v. Dyer, 245 Neb. 385 , 513 N.W.2d 316 (1994).

2001App. 621, 616 N.W.2d 810 (2000), and State v. Martin, 239 Neb. 339 , 476 N.W.2d 536 (1991), or the hearsay exception for medical diagnosis and treatment, see Vacanti v. Master Electronics Corp., 245 Neb. 586 , 514 N.W.2d 319 (1994), and State v. Dyer, 245 Neb. 385 , 513 N.W.2d 316 (1994).

2016The true test is not when the exclamation 63 See, U.S. v. Paulino, 13 F.3d 20 (1st Cir. 1994); U.S. v. Williams, 837 F.2d 1009 (11th Cir. 1988); United States v. Rosenstein, 474 F.2d 705 (2d Cir. 1973); State v. Henry, supra note 9 ; State v. Draganescu, supra note 3 . 64 See State v. Henry, supra note 9 . 65 See, United States v. Rosenstein, supra note 63 ; State v. Henry, supra note 9 . 66 See State v. Henry, supra note 9 . 67 See State v. Hughes, 244 Neb. 810 , 510 N.W.2d 33 (1993). 68 See State v. Hale, 290 Neb. 70 , 858 N.W.2d 543 (2015). - 22 - was made, but whether, under all the circum

2016The true test is not when the exclamation 63 See, U.S. v. Paulino, 13 F.3d 20 (1st Cir. 1994); U.S. v. Williams, 837 F.2d 1009 (11th Cir. 1988); United States v. Rosenstein, 474 F.2d 705 (2d Cir. 1973); State v. Henry, supra note 9 ; State v. Draganescu, supra note 3 . 64 See State v. Henry, supra note 9 . 65 See, United States v. Rosenstein, supra note 63 ; State v. Henry, supra note 9 . 66 See State v. Henry, supra note 9 . 67 See State v. Hughes, 244 Neb. 810 , 510 N.W.2d 33 (1993). 68 See State v. Hale, 290 Neb. 70 , 858 N.W.2d 543 (2015). - 22 - was made, but whether, under all the circum

1993The Court of Appeals affirmed Tlamka’s conviction, citing State v. Plant, 236 Neb. 317 , 461 N.W.2d 253 (1990), and other Nebraska decisions for the proposition that the requirements of spontaneity and contemporaneousness for the excited utterance exception to the hearsay rule are relaxed for child-declarants.

1993The Court of Appeals affirmed Tlamka’s conviction, citing State v. Plant, 236 Neb. 317 , 461 N.W.2d 253 (1990), and other Nebraska decisions for the proposition that the requirements of spontaneity and contemporaneousness for the excited utterance exception to the hearsay rule are relaxed for child-declarants.

2022TRAIL Cite as 312 Neb. 843 his or her fellow conspirators, and the commonality of inter- ests gives some assurance that the statements are reliable. 74 Whether or not a conspiracy has been charged in the informa- tion, 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, to prevent the danger of hearsay evi- dence being lifted by its own bootstraps. 75 Our review of the record demonstrates the district court was aware of Trail’s concerns and i

2022TRAIL Cite as 312 Neb. 843 his or her fellow conspirators, and the commonality of inter- ests gives some assurance that the statements are reliable. 74 Whether or not a conspiracy has been charged in the informa- tion, 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, to prevent the danger of hearsay evi- dence being lifted by its own bootstraps. 75 Our review of the record demonstrates the district court was aware of Trail’s concerns and i

2022Stat. § 27-801 (4)(b)(v) (Reissue 2016), a statement is not hearsay if it is “a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” Under the coconspirator exception to the hearsay rule, the declarant conspirator who partners with oth- ers in the commission of a crime is considered the agent of 69 Id. 70 Id. 71 Brief for appellant at 23. 72 Id. 73 State v. Hudson, 279 Neb. 6 , 775 N.W.2d 429 (2009). - 886 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports STATE V.

2022Stat. § 27-801 (4)(b)(v) (Reissue 2016), a statement is not hearsay if it is “a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” Under the coconspirator exception to the hearsay rule, the declarant conspirator who partners with oth- ers in the commission of a crime is considered the agent of 69 Id. 70 Id. 71 Brief for appellant at 23. 72 Id. 73 State v. Hudson, 279 Neb. 6 , 775 N.W.2d 429 (2009). - 886 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports STATE V.

2022State v. Nolt, 298 Neb. 910 , 906 N.W.2d 309 (2018).

2019It may be subsequent to the 5 Id. 6 Id. 7 State v. Nolt, 298 Neb. 910 , 906 N.W.2d 309 (2018). - 161 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports PANTANO v. AMERICAN BLUE RIBBON HOLDINGS Cite as 303 Neb. 156 event if there was not time for the exciting influence to lose its sway.8 The true test 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.9 “Relevant facts include the declarant’s manifestation of stress, such as ‘“yelling,”’ and the declarant

1999In State v. Copple, 224 Neb. 672 , 401 N.W.2d 141 (1987), abrogated on other grounds, State v. Reynolds, 235 Neb. 662 , 457 N.W.2d 405 (1990), we held that statements made by coconspirators could be admitted even when the conspiracy was not charged in the information. *310 However, 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....”’ Copple, 224 Neb. at 693 , 401 N.W.2d at 156 .

1999In State v. Copple, 224 Neb. 672 , 401 N.W.2d 141 (1987), abrogated on other grounds, State v. Reynolds, 235 Neb. 662 , 457 N.W.2d 405 (1990), we held that statements made by coconspirators could be admitted even when the conspiracy was not charged in the information. *310 However, 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....”’ Copple, 224 Neb. at 693 , 401 N.W.2d at 156 .

2021The State responds by claiming that although the record contains hearsay statements, which are out-of-court statements made by a human declarant that are offered in evidence to prove the truth of the matter asserted, see State v. Draganescu, 276 Neb. 448 , 755 N.W.2d 57 (2008), and which are not admissible without exception, statements made for purposes of medical diagnoses or treatment are excepted from the hearsay rule by Neb.

2021The State responds by claiming that although the record contains hearsay statements, which are out-of-court statements made by a human declarant that are offered in evidence to prove the truth of the matter asserted, see State v. Draganescu, 276 Neb. 448 , 755 N.W.2d 57 (2008), and which are not admissible without exception, statements made for purposes of medical diagnoses or treatment are excepted from the hearsay rule by Neb.

2016In a later written order, the district court ruled on McMillion’s motion in limine, finding that the statements S.M. made during therapy sessions fall under an exception to the hearsay rule and - 696 - Decisions of the Nebraska Court of A ppeals 23 Nebraska A ppellate R eports STATE v. McMILLION Cite as 23 Neb.

2016In a later written order, the district court ruled on McMillion’s motion in limine, finding that the statements S.M. made during therapy sessions fall under an exception to the hearsay rule and - 696 - Decisions of the Nebraska Court of A ppeals 23 Nebraska A ppellate R eports STATE v. McMILLION Cite as 23 Neb.

2004In concluding that the victim’s statement in Olesen was inadmissible, the Eighth Circuit stated that the hearsay exception for statements made for purposes of medical treatment “is bottomed upon the premise that a patient’s ‘selfish motive’ ... in receiving the proper treatment guarantees the trustworthiness of the statements made to her physician.” 164 F.3d at 1098 .

2003As such, the Eighth Circuit held that the hearsay exception should be applied “only when the prosecution is able to demonstrate that the victim’s motive in making the statement was consistent with the purpose of promoting treatment.” Id. at 1098 .

2001The Court, reasoning that the hearsay rule may not be applied mechanistically to exclude evidence that bore persuasive assurances of trustworthiness and that was critical to the accused’s defense, concluded that the exclusion of the third party’s statements constituted a violation of “traditional and fundamental standards of due process.” Id.

1993Therefore, “where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Chambers v. Mississippi, 410 U.S. at 302 .

2000The Court in Wright noted that the Confrontation Clause "bars admission of some evidence that would otherwise be admissible under an exception to the hearsay rule." 497 U.S. at 814 , 110 S.Ct. 3139 .

2000The Court in Wright noted that the Confrontation Clause “bars admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.” 497 U.S. at 814 .

1993See, Flores, supra; United States v. Rasmussen, 790 F.2d 55 (8th Cir. 1986) (adding a third element to the analysis for statements against penal interests, which element requires a finding of trustworthiness for statements wherein the declarant implicates the accused, is intended to satisfy the accused’s confrontation rights); Olson, supra; State v. Palser, 238 Neb. 193 , 469 N.W.2d 753 (1991) (declining to infer reliability even though the statement fell within the exception for.statements against penal interests).

1991However, under the conflicting evidence here, there is no inference of reliability, and to meet the constitutional confrontation clause reliability standards the statement must possess some “particularized guarantees of trustworthiness.” See Olson v. Green, 668 F.2d 421 (8th Cir. 1982).