Start with Nebraska Evidence Rules (Neb. Rev. Stat. §§ 27-101 et seq.). In Nebraska, Nebraska evidence practice is organized under the Nebraska Evidence Rules (Neb. Rev. Stat. §§ 27-101 et seq.). Relevance starts at Neb. Rev. Stat. §§ 27-401, 27-403; hearsay starts at Neb. Rev. Stat. §§ 27-801, 27-802. That is the question this guide answers for evidence law. Authenticity is a separate fight under Neb. Rev. Stat. §§ 27-901, 27-902. Depositions at trial: Neb. Ct. R. § 6-1327 and Neb. Rev. Stat. § 25-1273 govern civil deposition use at trial. Criminal discovery follows Neb. Rev. Stat. § 29-1912; deposition testimony at trial requires Neb. Rev. Stat. § 27-804(2)(a) with unavailability under § 27-804(1).
General standards of admissibility
Nebraska starts every evidence dispute with relevance and unfair prejudice. Under Neb. Rev. Stat. §§ 27-401, 27-403, evidence is relevant when it has any tendency to make a fact of consequence more or less probable, and relevant evidence is still excluded when its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time. Preliminary questions of admissibility are for the court; conditional relevance and limited-purpose instructions keep otherwise-usable proof from becoming a Trojan horse for propensity or truth-of-the-matter use.
Nebraska's 27- numbering mirrors FRE rule numbers with a chapter prefix. Party admissions appear in § 27-801(4) rather than a separate 801(d) subdivision label.
Practice tip: articulate the theory of relevance in one sentence before citing the exception. Lawyers who lead with "it's a business record" without explaining what fact the record proves often lose the 403 balance even when the hearsay foundation is clean.
Character evidence
Character evidence in Nebraska is governed by Neb. Rev. Stat. §§ 27-404, 27-405. The default rule is familiar: evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. The same body of law then carves out the classic exceptions — essential-element character, accused-opens-the-door reputation or opinion, and other-acts evidence offered for a non-propensity purpose such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
Other-acts notice, 403 balancing, and limiting instructions do most of the real work. In criminal cases, prosecutors who dump prior misconduct without a specific non-propensity theory invite reversal; defense counsel who open the door to good-character testimony without anticipating rebuttal create the very propensity inference the rules were designed to police.
Nebraska character-evidence opinions
State v. Oldson
State v. Oldson, 293 Neb. 718 (2016)
…d, commonly on an emotional basis. 15. Evidence: Intent. If character evidence is admitted for a proper pur- pose, then, ipso facto, it is not admitted for the purpose of showing propensity. 16. Trial: Appeal and Error. A defendant may not gain an advantage on appeal by failing to pursue strategies at trial to minimize prejudice. 17. Constitutional Law: Trial: Juries: Witnesses…
On character evidence, State v. Oldson speaks to the Nebraska dispute in this passage: "Evidence: Intent. If character evidence is admitted for a proper pur- pose, then, ipso facto, it is not admitted for the purpose of showing propensity. 16. Trial: Appeal and Error." The surrounding opinion shows how the court applied that language to the record.
State of Nebraska, Appellee, v. Kimberly Sue Faust, Appellant
State of Nebraska, Appellee, v. Kimberly Sue Faust, Appellant, 265 Neb. 845 (2003)
…995) and §§ 27-404 and 27-405. Section 27-404 explains when character evidence is admissible and provides in part: (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…
On character evidence, State of Nebraska, Appellee, v. Kimberly Sue Faust, Appellant speaks to the Nebraska dispute in this passage: "995) and §§ 27-404 and 27-405. Section 27-404 explains when character evidence is admissible and provides in part: (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" The surrounding opinion shows how the court applied that language to the record.
Sturzenegger v. FATHER FLANAGAN'S BOYS'HOME
Sturzenegger v. FATHER FLANAGAN'S BOYS'HOME, 276 Neb. 327 (2008)
…gation of Sturzenegger's allegations; (7) allowing improper character evidence of Sturzenegger; (8) allowing evidence of specific bad acts of Sturzenegger; (9) allowing questioning of Sturzenegger based upon inadmissible evidence that was not supported by later witnesses at trial; (10) allowing cross-examination and evidence based on Sturzenegger's superseded pleadings; (11) al…
On character evidence, Sturzenegger v. FATHER FLANAGAN'S BOYS'HOME speaks to the Nebraska dispute in this passage: "gation of Sturzenegger's allegations; (7) allowing improper character evidence of Sturzenegger; (8) allowing evidence of specific bad acts of Sturzenegger; (9) allowing questioning of Sturzenegger based upon inadmissible evidence that was not supported by later witnesses at trial" The surrounding opinion shows how the court applied that language to the record.
State v. Vazquez
State v. Vazquez, 319 Neb. 192 (2025)
…f the recorded interview, (3) failing to object to improper character evidence, (4) asking and failing to object to improper questions about veracity, (5) failing to impeach certain witnesses, (6) failing to conduct effective voir dire, (7) failing in miscellaneous other ways, and (8) failing to present effective evidence and argument at sentencing. 27 See, e.g., Middleton v. R…
On character evidence, State v. Vazquez speaks to the Nebraska dispute in this passage: "f the recorded interview, (3) failing to object to improper character evidence, (4) asking and failing to object to improper questions about veracity, (5) failing to impeach certain witnesses, (6) failing to conduct effective voir dire, (7) failing in miscellaneous other ways, an" The surrounding opinion shows how the court applied that language to the record.
State of Nebraska, Appellee, v. Donna McPherson, Appellant
State of Nebraska, Appellee, v. Donna McPherson, Appellant, 266 Neb. 715 (2003)
…and sexually explicit videos were prohibited as rule 404(2) character evidence, see *720 Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), and (2) whether Roger’s statement was admissible at trial. In reviewing the first issue, the court divided the evidence at issue into two categories: (1) material seized which included the sexual devices and sexually explicit…
State of Nebraska, Appellee, v. Donna McPherson, Appellant is worth reading on Nebraska character evidence because the court put the point in its own words: "Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), and (2) whether Roger’s statement was admissible at trial." Use that passage as the starting point, then read the facts that precede it.
State of Nebraska, Appellee, v. Roger McPherson, Appellant
State of Nebraska, Appellee, v. Roger McPherson, Appellant, 266 Neb. 734 (2003)
…) whether the evidence seized was prohibited as rule 404(2) character evidence, see Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), and (2) whether Roger’s statement was admissible at trial. In reviewing the first issue, the court divided the evidence at issue into two categories: (1) material seized which included the sexual devices and sexually explicit vide…
State of Nebraska, Appellee, v. Roger McPherson, Appellant is worth reading on Nebraska character evidence because the court put the point in its own words: "Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), and (2) whether Roger’s statement was admissible at trial." Use that passage as the starting point, then read the facts that precede it.
State of Nebraska, Appellee, v. Harold Jay Trotter, Appellant
State of Nebraska, Appellee, v. Harold Jay Trotter, Appellant, 262 Neb. 443 (2001)
…ter’s ex-spouses, the jury would have been left with little character evidence other than evidence of Tammy’s history with her other children. Evidence was presented at trial tending to show that Tammy had a history of neglecting or mistreating her children. Tammy’s mother testified that Tammy voluntarily gave her and her husband guardianship of Tammy’s first child, A.C., after…
Nebraska opinions such as State of Nebraska, Appellee, v. Harold Jay Trotter, Appellant are cited where character evidence is disputed. The court stated: "Tammy’s history with her other children. Evidence was presented at trial tending to show that Tammy had a history of neglecting or mistreating her children. Tammy’s mother testified that Tammy voluntarily gave her and her husband guardianship of Tammy’s first child, A.C." That is the language to brief; the rest of the decision supplies the procedural posture.
State of Nebraska, Appellee, v. Barry Vogel, Appellant
State of Nebraska, Appellee, v. Barry Vogel, Appellant, 247 Neb. 209 (1995)
…pted rule 404(1)(a) as controlling the admissibility of the character evidence, but raised the question of whether the character trait of honesty was pertinent to the crimes charged of bribery and conspiracy. Vogel’s counsel argued that such testimony was always admissible to support a defendant’s reputation for truth and honesty in the community. The trial court disagreed and…
Nebraska opinions such as State of Nebraska, Appellee, v. Barry Vogel, Appellant are cited where character evidence is disputed. The court stated: "Vogel’s counsel argued that such testimony was always admissible to support a defendant’s reputation for truth and honesty in the community." That is the language to brief; the rest of the decision supplies the procedural posture.
How the Nebraska rule applies
Apply the Nebraska authorities in order. The facts are simplified so the statute and the standard are visible.
A lawyer in Nebraska wants to offer a medical record, a party email, and a statement the declarant made while believing death was imminent.
- Clear relevance and unfair prejudice under Neb. Rev. Stat. §§ 27-401, 27-403.
- If the email is the opposing party's, test Neb. Rev. Stat. § 27-801(4)(b) before the hearsay definition in Neb. Rev. Stat. §§ 27-801, 27-802.
- For the medical record, lay the business-records foundation in Neb. Rev. Stat. § 27-803(6) and the treatment purpose in Neb. Rev. Stat. § 27-803(4).
- For the deathbed statement, meet Neb. Rev. Stat. § 27-804(2)(b), then authenticate every exhibit under Neb. Rev. Stat. §§ 27-901, 27-902.
Nebraska keeps hearsay, character, and authenticity on different rules inside the Nebraska Evidence Rules (Neb. Rev. Stat. §§ 27-101 et seq.). Winning one does not win the others.
Hearsay: start with the definition
Most hearsay objections in Nebraska are won or lost on the definition, not on an exception. Under Neb. Rev. Stat. §§ 27-801, 27-802, hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Non-hearsay purposes — verbal acts, effect on the listener, notice, circumstantial evidence of state of mind, and impeachment — remain available when the proponent can articulate them without asking the jury to believe the declarant.
Layered hearsay (hearsay within hearsay) requires an exception or exclusion for each layer. Machine-generated data and non-assertive conduct sit outside the hearsay definition in FRE-aligned jurisdictions, but they still need authenticity and, often, expert or business-records foundations.
Nebraska hearsay opinions
State v. Draganescu
State v. Draganescu, 276 Neb. 448 (2008)
…cu's pocket after his arrest, admissible under the residual hearsay exception? We spell out our holding with some specificity in the following pages, but briefly stated, it is this: We hold that the State Patrol did have probable cause to stop the vehicle. We further hold that the State Patrol had probable cause to search the van following a canine sniff. Finally, although the…
State v. Draganescu is worth reading on Nebraska hearsay because the court put the point in its own words: "We spell out our holding with some specificity in the following pages, but briefly stated, it is this: We hold that the State Patrol did have probable cause to stop the vehicle. We further hold that the State Patrol had probable cause to search the van following a canine sniff." Use that passage as the starting point, then read the facts that precede it.
State of Nebraska, Appellee, v. Darrell J. Vaught, Appellant
State of Nebraska, Appellee, v. Darrell J. Vaught, Appellant, 268 Neb. 316 (2004)
…nation and that he asked her what had happened to her. Over hearsay objections, he testified that the victim said that “her Uncle DJ put his finger in her pee-pee.” His examination indicated that the victim’s “hymen was intact.” Dr. Cathy Hudson testified that she saw the victim a few days later for a more thorough examination, including the use of a colposcope. The colposcopic…
State of Nebraska, Appellee, v. Darrell J. Vaught, Appellant is worth reading on Nebraska hearsay because the court put the point in its own words: "Over hearsay objections, he testified that the victim said that “her Uncle DJ put his finger in her pee-pee.” His examination indicated that the victim’s “hymen was intact.” Dr." Use that passage as the starting point, then read the facts that precede it.
Alliance National Bank & Trust Company, a National Banking Association, Appellee, v. State Surety Company, a
…would receive [its] money.” Over State Surety’s objection (hearsay), Bilstein also testified about Arntt’s statements made to him as a loan officer for the bank, representations concerning four inventoried vehicles for which the bank was never paid, namely: 1. A1978 Ford van; balance on note — $5,737. Statement: On October 19, 1981, Arntt said the van was involved in a sale at…
Nebraska opinions such as Alliance National Bank & Trust Company, a National Banking Association, Appellee, v. State Surety Company, a are cited where hearsay is disputed. The court stated: "Over State Surety’s objection (hearsay), Bilstein also testified about Arntt’s statements made to him as a loan officer for the bank, representations concerning four inventoried vehicles for which the bank was never paid, namely: 1. A1978 Ford van; balance on note — $5,737." That is the language to brief; the rest of the decision supplies the procedural posture.
State of Nebraska, Appellee, v. Steven Jacob, Appellant
State of Nebraska, Appellee, v. Steven Jacob, Appellant, 242 Neb. 176 (1993)
…is connection not only that the statements are inadmissible hearsay, but that their receipt into evidence compromised Jacob’s right to confrontation as guaranteed by the U.S. and Nebraska Constitutions. 1. Statement to Supervisor Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the tr…
Nebraska opinions such as State of Nebraska, Appellee, v. Steven Jacob, Appellant are cited where hearsay is disputed. The court stated: "Jacob’s right to confrontation as guaranteed by the U.S. and Nebraska Constitutions. 1." That is the language to brief; the rest of the decision supplies the procedural posture.
State of Nebraska, Appellee, v. Gregory T. Neujahr, Appellant
State of Nebraska, Appellee, v. Gregory T. Neujahr, Appellant, 248 Neb. 965 (1995)
…pocket were a controlled substance and in admitting certain hearsay testimony. State v. Neujahr, 95 NCA No. 20, case No. A-94-663 (not designated for permanent publication). For the reasons cited below, we reverse the decision of the Court of Appeals and remand the cause to that court with direction that it reinstate the jury’s verdict. *967 STATE’S ASSIGNMENTS OF ERROR ON FURT…
State of Nebraska, Appellee, v. Gregory T. Neujahr, Appellant is worth reading on Nebraska hearsay because the court put the point in its own words: "State v. Neujahr, 95 NCA No. 20, case No. A-94-663 (not designated for permanent publication). For the reasons cited below, we reverse the decision of the Court of Appeals and remand the cause to that court with direction that it reinstate the jury’s verdict." Use that passage as the starting point, then read the facts that precede it.
Daniel Koehler, Personal Representative of the Estate of Tracy L. Koehler, Deceased, Appellee, v. Farmers Alliance
…over Farmers' objections that it lacked foundation and was hearsay. Neither party requested a limiting instruction with respect to exhibit 4. The jury returned a verdict for Koehler in the amount of $25,000. Following the verdict, Koehler filed a motion and application for attorney fees under § 44-359, which allows the court to award attorney fees in cases brought upon an insu…
Practitioners open Daniel Koehler, Personal Representative of the Estate of Tracy L. Koehler, Deceased, Appellee, v. Farmers Alliance when Nebraska hearsay turns on the distinction in this sentence: "Farmers' objections that it lacked foundation and was hearsay. Neither party requested a limiting instruction with respect to exhibit 4. The jury returned a verdict for Koehler in the amount of $25,000." Do not lift it out of the facts the court was deciding.
State of Nebraska, Appellee, v. Jeremy C. Sheets, Appellant — Miller-Lerman, J., concurring
…be excluded because it does not fall within a firmly rooted hearsay exception, I agree. With respect to the majority’s analysis that the statement should be excluded as inadmissible hearsay because it lacks particularized guarantees of trustworthiness under the second prong of the test as articulated in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), I c…
Practitioners open State of Nebraska, Appellee, v. Jeremy C. Sheets, Appellant — Miller-Lerman, J., concurring when Nebraska hearsay turns on the distinction in this sentence: "I agree. With respect to the majority’s analysis that the statement should be excluded as inadmissible hearsay because it lacks particularized guarantees of trustworthiness under the second prong of the test as articulated in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed." Do not lift it out of the facts the court was deciding.
Party admissions
Statements of an opposing party are among the most important routes around the hearsay bar. Nebraska treats them under Neb. Rev. Stat. § 27-801(4)(b). Nothing about the statement need be against interest, contemporaneous, or based on personal knowledge — the theory is adversarial, not reliability-based. A party cannot complain that his own words are unreliable when offered against him.
Scope questions dominate practice: the party's own statement; adopted statements (including silence in circumstances where a reasonable person would deny); statements by authorized speakers; agent or employee statements on matters within the scope of the relationship; and, in criminal conspiracy cases, coconspirator statements during and in furtherance of the conspiracy. A defendant generally cannot introduce his own exculpatory out-of-court statement as a "party admission" against himself — the rule runs one way.
Nebraska party-admission opinions
Marc A. LOMBARDO, Appellant and Cross-Appellee, v. Michael J. SEDLACEK, M.D., Appellee and Cross-Appellant.
…the summary judgment hearing his first set of requests for admission and the psychiatrist's responses, and in erroneously relying on the psychiatrist's affidavit that allegedly was not in evidence. II. BACKGROUND 1. COMPLAINT Marc A. Lombardo, pro se, sued his former psychiatrist, Michael J. Sedlacek, for medical malpractice. Lombardo alleged that Sedlacek was negligent in fai…
On party admissions, Marc A. LOMBARDO, Appellant and Cross-Appellee, v. Michael J. SEDLACEK, M.D., Appellee and Cross-Appellant. speaks to the Nebraska dispute in this passage: "II. BACKGROUND 1. COMPLAINT Marc A. Lombardo, pro se, sued his former psychiatrist, Michael J. Sedlacek, for medical malpractice." The surrounding opinion shows how the court applied that language to the record.
Bryan Wibbels, Appellee, v. Kenneth Fred Unick, Conservator for the Estate of Fred Unick, Appellant, Town & Country
…ces of a party’s failure to respond timely to a request for admission, pursuant to Neb. Disc. R. 36 (rev. 1986). Bryan Wibbels commenced an action against Fred Unick and claimed that Unick, as lessor, failed to pay Wibbels, as lessee, an amount due under their farmland lease. Coop filed its petition of intervention in Wibbels’ suit on September 24,1985, and alleged that, relyin…
Nebraska opinions such as Bryan Wibbels, Appellee, v. Kenneth Fred Unick, Conservator for the Estate of Fred Unick, Appellant, Town & Country are cited where party admissions is disputed. The court stated: "Neb. Disc. R. 36 (rev. 1986). Bryan Wibbels commenced an action against Fred Unick and claimed that Unick, as lessor, failed to pay Wibbels, as lessee, an amount due under their farmland lease." That is the language to brief; the rest of the decision supplies the procedural posture.
Conley v. Brazer
Conley v. Brazer, 278 Neb. 508 (2009)
…stating that the Brazers had not responded to requests for admissions, copies of which were attached to the affidavit. The Brazers objected on the ground of relevance, and the court reserved ruling. In an order entered on September 5, 2008, the district court received certain exhibits on which it had reserved ruling, including the transcript of testimony at the temporary injun…
On party admissions, Conley v. Brazer speaks to the Nebraska dispute in this passage: "Brazers had not responded to requests for admissions, copies of which were attached to the affidavit. The Brazers objected on the ground of relevance, and the court reserved ruling." The surrounding opinion shows how the court applied that language to the record.
Omaha Street Railway Company v. Samuel Elkins
Omaha Street Railway Company v. Samuel Elkins, 39 Neb. 480 (1894)
…conflict. The following cases are directly in favor of the admission of the evidence: Magill v. Kauffman, 4 S. & R. [Pa.], 317; Howard v. Patrick, 38 Mich., 795; Sneed v. State, 47 Ark., 180; Lowe v. State, 86 Ala., 47; People v. Devine, 46 Cal., 46. The other side of the case is not without considerable support. Gerhauser v. North British & Mercantile Ins. Co., 7 Nev., 174, i…
Omaha Street Railway Company v. Samuel Elkins is worth reading on Nebraska party admissions because the court put the point in its own words: "The following cases are directly in favor of the admission of the evidence: Magill v. Kauffman, 4 S. & R. [Pa.], 317; Howard v. Patrick, 38 Mich., 795; Sneed v. State, 47 Ark., 180; Lowe v. State, 86 Ala., 47; People v. Devine, 46 Cal., 46." Use that passage as the starting point, then read the facts that precede it.
Palmtag v. Republican Party of Neb.
Palmtag v. Republican Party of Neb., 315 Neb. 679 (2024)
…ry judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. 10. Actions: Proof. Successful suits are not limited to those c…
Practitioners open Palmtag v. Republican Party of Neb. when Nebraska party admissions turns on the distinction in this sentence: "ry judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is enti" Do not lift it out of the facts the court was deciding.
Robert Howard, Appellant, v. State Farm Mutual Automobile Insurance Company, Appellee
…hat it is organized as a mutual company. State Farm made an admission, of sorts, when it stated during voir dire examination that “State Farm is a mutual company so it’s not really a corporation . . . .” An examination of Howard’s State Farm insurance policy reveals that State Farm did hold itself out to be a mutual company. This, of course, is not the insurance policy of the q…
On party admissions, Robert Howard, Appellant, v. State Farm Mutual Automobile Insurance Company, Appellee speaks to the Nebraska dispute in this passage: "State Farm made an admission, of sorts, when it stated during voir dire examination that “State Farm is a mutual company so it’s not really a corporation . . . ." The surrounding opinion shows how the court applied that language to the record.
George W. Martin v. George A. Sanford
George W. Martin v. George A. Sanford, 129 Neb. 212 (1935)
…t be proved by testimony on oath and not by declarations or admissions not on oath. One of the exceptions to this rule is that the declarations of a party to the record, or of one identified in interest with him against his interest, are, as against such party, admissible in evidence.” 1 Ency. of Evidence, 504. The testimony which plaintiff offered was plainly not within the fo…
Nebraska opinions such as George W. Martin v. George A. Sanford are cited where party admissions is disputed. The court stated: "One of the exceptions to this rule is that the declarations of a party to the record, or of one identified in interest with him against his interest, are, as against such party, admissible in evidence.” 1 Ency. of Evidence, 504." That is the language to brief; the rest of the decision supplies the procedural posture.
Tracy C. Rewick v. Dierks Lumber & Coal Company
Tracy C. Rewick v. Dierks Lumber & Coal Company, 109 Neb. 300 (1922)
…financial condition of • defendant, and were receivable as admissions against interest-on the plainest principles. They showed the net assets of the company, which tended to establish the value of the stock, as well as the price plaintiff was entitled to receive under his contract. These-statements, being records of defendant, procured and acted upon by it, as correct statemen…
Practitioners open Tracy C. Rewick v. Dierks Lumber & Coal Company when Nebraska party admissions turns on the distinction in this sentence: "They showed the net assets of the company, which tended to establish the value of the stock, as well as the price plaintiff was entitled to receive under his contract." Do not lift it out of the facts the court was deciding.
Business records
The business-records exception under Neb. Rev. Stat. § 27-803(6) is the everyday path for medical charts, employment files, bank statements, and maintenance logs. The foundation requires a record made at or near the time by — or from information transmitted by — someone with knowledge; kept in the course of a regularly conducted activity; and made as a regular practice. A custodian or other qualified witness (or a qualifying certification where the jurisdiction allows it) lays the foundation. The opponent may still attack lack of trustworthiness when the source or method of preparation indicates unreliability — litigation-driven reports are the classic failure mode.
Do not confuse authenticity with the business-records exception. You still need to show the exhibit is what you claim it is; the hearsay exception then answers why the out-of-court assertions inside it may be considered for their truth.
Nebraska business-records opinions
State v. Draganescu
State v. Draganescu, 276 Neb. 448 (2008)
…at are merely the visual counterparts to routine electronic business records are usually hearsay, but they can be admissible under the business records exception.[52] Here, the State did not attempt to lay foundation for the business records exception. The court, however, admitted exhibit 20 under the residual hearsay exception. We agree with Draganescu that the district court…
On business records, State v. Draganescu speaks to the Nebraska dispute in this passage: "Here, the State did not attempt to lay foundation for the business records exception. The court, however, admitted exhibit 20 under the residual hearsay exception." The surrounding opinion shows how the court applied that language to the record.
James E. Crowder and Jenevieve A. Crowder, Husband and Wife, Appellees and Cross-Appellants, v. Aurora Co-Operative
…ed that Comer’s November 10 memorandum did not qualify as a business record. The second Co-op exhibit was a written summary of scale tickets for each corn delivery at the elevator during September, October, and November 1983. Co-op’s three-page summary was set out in columnar form, showing the date, total bushels of corn received daily at the co-op, the time of day of each rece…
Practitioners open James E. Crowder and Jenevieve A. Crowder, Husband and Wife, Appellees and Cross-Appellants, v. Aurora Co-Operative when Nebraska business records turns on the distinction in this sentence: "Comer’s November 10 memorandum did not qualify as a business record. The second Co-op exhibit was a written summary of scale tickets for each corn delivery at the elevator during September, October, and November 1983." Do not lift it out of the facts the court was deciding.
Henry Misle, Cotrustee of the Ben Misle Trust, Appellee and Cross-Appellant, v. Julius Misle and Abram Misle
…o Sidney. At trial, the district court refused to admit the business records of Misle Chevrolet’s successor corporation and the testimony of the successor corporation’s records custodian, Sheryl Pierson, which would have allegedly shown that the trust corpus was deficient due to an alleged double distribution to Sidney. The district court thereafter ordered Julius and Abram to…
Nebraska opinions such as Henry Misle, Cotrustee of the Ben Misle Trust, Appellee and Cross-Appellant, v. Julius Misle and Abram Misle are cited where business records is disputed. The court stated: "Misle Chevrolet’s successor corporation and the testimony of the successor corporation’s records custodian, Sheryl Pierson, which would have allegedly shown that the trust corpus was deficient due to an alleged double distribution to Sidney." That is the language to brief; the rest of the decision supplies the procedural posture.
Bobbie Brooks, Incorporated, Appellant, v. Maurice Hyatt, Appellee
Bobbie Brooks, Incorporated, Appellant, v. Maurice Hyatt, Appellee, 195 Neb. 596 (1976)
…m personal knowledge as to the method of preparation of the business records of Bobbie Brooks, Inc. He also testified that, prior to 1970 when the record-keeping was centralized, all subsidiaries and divisions of Bobbie Brooks, Inc., used the same system *598of preparing business records. In addition, Segal testified that he observed Stacy Ames’ record-keeping procedures in 196…
Practitioners open Bobbie Brooks, Incorporated, Appellant, v. Maurice Hyatt, Appellee when Nebraska business records turns on the distinction in this sentence: "Bobbie Brooks, Inc. He also testified that, prior to 1970 when the record-keeping was centralized, all subsidiaries and divisions of Bobbie Brooks, Inc., used the same system *598of preparing business records." Do not lift it out of the facts the court was deciding.
Omaha World-Herald Co. v. Nielsen
Omaha World-Herald Co. v. Nielsen, 220 Neb. 295 (1985)
…sed. First, that the trial court erred in admitting certain business records introduced by the appellee. Second, that the deposition of appellant, read into evidence at trial, established that appellant did not owe the amounts in controversy, and thus the verdict was against the weight of evidence and should be reversed. Third, that the distributorship agreement had been orally…
Practitioners open Omaha World-Herald Co. v. Nielsen when Nebraska business records turns on the distinction in this sentence: "First, that the trial court erred in admitting certain business records introduced by the appellee." Do not lift it out of the facts the court was deciding.
In Re Interest of Gloria F., a Child Under 18 Years of Age. State of Nebraska, Appellee, v. Walter R., Appellant
…er to testify regarding statements in her case file via the business record exception; and (3) granting the continued detention order, because the hearing deprived appellant of his due process rights. Juvenile cases are reviewed de novo on the record, and the appellate court is required to reach a conclusion independent of the trial court’s findings; however, where the evidence…
Practitioners open In Re Interest of Gloria F., a Child Under 18 Years of Age. State of Nebraska, Appellee, v. Walter R., Appellant when Nebraska business records turns on the distinction in this sentence: "er to testify regarding statements in her case file via the business record exception; and (3) granting the continued detention order, because the hearing deprived appellant of his due process rights. Juvenile cases are reviewed de novo on the record, and the appellate court is r" Do not lift it out of the facts the court was deciding.
State v. Walker
State v. Walker, 953 N.W.2d 65 (2020)
…ence: Records: Hearsay: Proof. 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 - 293 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports STATE v. WALKER Cite as…
Practitioners open State v. Walker when Nebraska business records turns on the distinction in this sentence: "Records: Hearsay: Proof. 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." Do not lift it out of the facts the court was deciding.
Important hearsay exceptions that do not require unavailability
Three present-sense and mental-state exceptions carry most of the remaining traffic in Nebraska trial practice.
Excited utterance — Neb. Rev. Stat. § 27-803(2). A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. Timing is elastic; composure defeats the exception even minutes after the event, while visible distress can preserve it for hours.
Present sense impression — Neb. Rev. Stat. § 27-803(1). A statement describing or explaining an event or condition made while or immediately after the declarant perceived it. Contemporaneity is strict — seconds and minutes, not hours — and excitement is not required.
Then-existing mental, emotional, or physical condition — Neb. Rev. Stat. § 27-803(3). Statements of then-existing state of mind (including intent and plan) come in; statements of memory or belief offered to prove the fact remembered generally do not. Intent-to-meet-another-person cases remain the hardest applications.
Declarant unavailable
When the declarant is unavailable under Neb. Rev. Stat. § 27-804(1), Nebraska opens a second suite of exceptions. Unavailability typically includes privilege, refusal to testify despite court order, lack of memory, death or then-existing infirmity, and absence despite reasonable efforts to procure attendance. The proponent bears the burden of proving unavailability with specific facts — a bare assertion that the witness "could not be found" is not enough.
Former testimony under Neb. Rev. Stat. § 27-804(2)(a) is the workhorse once unavailability is shown: testimony given as a witness at a trial, hearing, or lawful deposition, offered against a party who had an opportunity and similar motive to develop it by direct, cross, or redirect. Criminal confrontation analysis runs in parallel and is not satisfied merely because a hearsay exception applies.
Dying declarations
Dying declarations under Neb. Rev. Stat. § 27-804(2)(b) remain a narrow but decisive exception in homicide and, in many jurisdictions, civil cases involving the cause or circumstances of what the declarant believed to be impending death. The foundational showing is the declarant's belief that death was imminent — not that death in fact followed within any particular time — plus a statement concerning the cause or circumstances of what the declarant believed to be the impending death. Courts police coaching and narrative expansions aggressively.
Nebraska dying-declaration opinions
Stephen Binfield, in error v. The State of Nebraska
Stephen Binfield, in error v. The State of Nebraska, 15 Neb. 484 (1884)
…The second point is, that “the court erred in admitting the dying declaration of Wendall Tillman to be read in evidence.” I quite agree with counsel that “dying declarations, to be used in evidence must be made not only in articulo ’ mortis, but under the sense of impending death, and that the party was of such a state of mind that he had a clear understanding of the contents o…
On dying declaration, Stephen Binfield, in error v. The State of Nebraska speaks to the Nebraska dispute in this passage: "The second point is, that “the court erred in admitting the dying declaration of Wendall Tillman to be read in evidence." The surrounding opinion shows how the court applied that language to the record.
John T. Mathews v. State of Nebraska
John T. Mathews v. State of Nebraska, 111 Neb. 593 (1924)
…the hospital and only two or three days after she made the dying declaration which was reduced' to writing. And it is apparent that the evidence of Mr. Fleming, as reflecting Miss McDermott’s declarations, contained material matter, which is not found in the written declaration nor in Dr. Henry’s evidence. From his evidence it appears that, after declaring she was going to die…
Practitioners open John T. Mathews v. State of Nebraska when Nebraska dying declaration turns on the distinction in this sentence: "And it is apparent that the evidence of Mr. Fleming, as reflecting Miss McDermott’s declarations, contained material matter, which is not found in the written declaration nor in Dr. Henry’s evidence." Do not lift it out of the facts the court was deciding.
Harry Williams v. State of Nebraska
Harry Williams v. State of Nebraska, 103 Neb. 710 (1919)
…witness, nor offer to prove by the witness that there was a dying declaration, and there is no showing that deceased made a dying declaration. The record is free from error, and the judgment is Affirmed.
Nebraska opinions such as Harry Williams v. State of Nebraska are cited where dying declaration is disputed. The court stated: "The record is free from error, and the judgment is Affirmed." That is the language to brief; the rest of the decision supplies the procedural posture.
Maurice Fitzgerald, in error v. The State of Nebraska, in error
Maurice Fitzgerald, in error v. The State of Nebraska, in error, 11 Neb. 577 (1881)
…ll bo considered. Objection is made to the admission of the dying declaration of Daniel McNeill as evidence, upon the ground that it does not appear that he had given up all hope of living at the time he made the same. From necessity, the dying declaration of a deceased person is admissible in evidence where the death of the deceased is the subject of the charge, and the circum…
Nebraska opinions such as Maurice Fitzgerald, in error v. The State of Nebraska, in error are cited where dying declaration is disputed. The court stated: "Objection is made to the admission of the dying declaration of Daniel McNeill as evidence, upon the ground that it does not appear that he had given up all hope of living at the time he made the same." That is the language to brief; the rest of the decision supplies the procedural posture.
Everett Edwards v. State of Nebraska
Everett Edwards v. State of Nebraska, 79 Neb. 251 (1907)
…econd, because the court erred in admitting in evidence the dying declarations of the deceased. The first contention is based upon the fact that the language of section 6 of the criminal code under which the charge is made is as follows: “Any physician or other person who shall administer, or advise to be administered to any pregnant woman with a vitalized embryo, or foetus, at…
Practitioners open Everett Edwards v. State of Nebraska when Nebraska dying declaration turns on the distinction in this sentence: "econd, because the court erred in admitting in evidence the dying declarations of the deceased. The first contention is based upon the fact that the language of section 6 of the criminal code under which the charge is made is as follows: “Any physician or other person who shall a" Do not lift it out of the facts the court was deciding.
Leon A. Clark v. State of Nebraska — Rose, J., dissenting
Leon A. Clark v. State of Nebraska — Rose, J., dissenting, 114 Neb. 818 (1926)
Rose, J., dissenting. I dissent from the ruling that dying declarations are inadmissible in evidence except.in prosecutions for felonious homicides. Evidence of this character consists of statements by a person conscious of certain and immediate death. The common law once sanctioned proof of dying declara*821tions in both civil and criminal cases. The solemnity of approa…
On dying declaration, Leon A. Clark v. State of Nebraska — Rose, J., dissenting speaks to the Nebraska dispute in this passage: "Rose, J., dissenting. I dissent from the ruling that dying declarations are inadmissible in evidence except.in prosecutions for felonious homicides. Evidence of this character consists of statements by a person conscious of certain and immediate death." The surrounding opinion shows how the court applied that language to the record.
Frederick A. Edwards v. State of Nebraska
Frederick A. Edwards v. State of Nebraska, 113 Neb. 698 (1925)
…te, over defendant’s objections, introduced in evidence the dying declaration of Miss Holman. The declaration, which is “exhibit 5,” follows: “Omaha, Nebraska. “Lillian Holman, 18 years old Dec. 11, 1923. Edward Hazen is responsible for my condition, he said he was a ball-player, not now working, he must be about 22 years old, went out to Dorsey’s chicken hut on West Center St.…
On dying declaration, Frederick A. Edwards v. State of Nebraska speaks to the Nebraska dispute in this passage: "Miss Holman. The declaration, which is “exhibit 5,” follows: “Omaha, Nebraska. “Lillian Holman, 18 years old Dec. 11, 1923." The surrounding opinion shows how the court applied that language to the record.
Medical diagnosis or treatment statements
Statements made for medical diagnosis or treatment under Neb. Rev. Stat. § 27-803(4) cover medical history, past or present symptoms, and their general cause when reasonably pertinent to diagnosis or treatment. The exception is not limited to treating physicians; statements to nurses, EMTs, and consulting clinicians can qualify when the diagnostic purpose is genuine. Fault and identity remain the usual battleground: "I was hit by a car" is often pertinent; "the light was green" usually is not; abuser identity in child-abuse and domestic-violence cases is heavily litigated.
Nebraska medical-statement opinions
State of Nebraska, Appellee, v. Darrell J. Vaught, Appellant
State of Nebraska, Appellee, v. Darrell J. Vaught, Appellant, 268 Neb. 316 (2004)
…s statements made by a declarant patient for the purpose of medical diagnosis or treatment under Neb. Rev. Stat. § 27-803(3) (Cum. Supp. 2002) and (2) trial counsel had provided ineffective assistance by failing to object to such testimony on confrontation grounds. The Court of Appeals rejected both assignments of error. *319 The following additional information with respect to…
Nebraska opinions such as State of Nebraska, Appellee, v. Darrell J. Vaught, Appellant are cited where medical diagnosis hearsay is disputed. The court stated: "Neb. Rev. Stat. § 27-803(3) (Cum. Supp. 2002) and (2) trial counsel had provided ineffective assistance by failing to object to such testimony on confrontation grounds. The Court of Appeals rejected both assignments of error." That is the language to brief; the rest of the decision supplies the procedural posture.
In Re Interest of B.R. Et Al., Children Under 18 Years of Age. State of Nebraska, Appellee, v. Billy B., Appellant
…s hearsay. The court overruled Billy’s objections under the medical diagnosis exception to hearsay. Overby then went on to testify, without objection, the foster mother had reported that B.R. did not want her foster father to read her a story in bed and that E.B. and N.B. became very tense with their legs when the foster mother attempted to clean their genital areas. Overby opi…
In Re Interest of B.R. Et Al., Children Under 18 Years of Age. State of Nebraska, Appellee, v. Billy B., Appellant is worth reading on Nebraska medical diagnosis hearsay because the court put the point in its own words: "The court overruled Billy’s objections under the medical diagnosis exception to hearsay. Overby then went on to testify, without objection, the foster mother had reported that B.R. did not want her foster father to read her a story in bed and that E.B. and N.B." Use that passage as the starting point, then read the facts that precede it.
State v. Swartz
State v. Swartz, 318 Neb. 553 (2025)
…arsay rule does not exclude statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the incep- tion or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. 13. ____: ____. Whether a statement was both taken and given in cont…
State v. Swartz is worth reading on Nebraska medical diagnosis hearsay because the court put the point in its own words: "arsay rule does not exclude statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the incep- tion or general character of the cause or external source thereof insofar as reasonably perti" Use that passage as the starting point, then read the facts that precede it.
State v. Jedlicka
State v. Jedlicka, 900 N.W.2d 454 (2017)
…er 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 Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2016). 3. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. An ineffective assistance of counsel claim is raise…
Nebraska opinions such as State v. Jedlicka are cited where medical diagnosis hearsay is disputed. The court stated: "Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2016). 3. Effectiveness of Counsel: Postconviction: Records: Appeal and Error." That is the language to brief; the rest of the decision supplies the procedural posture.
Milo P. Vacanti, Appellant, v. Master Electronics Corporation, a Nebraska Corporation, Appellee
…r the hearsay exception for statements made for purposes of medical diagnosis or treatment. Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 1989). We disagree. Rule 803(3) provides an exception, regardless of the availability of the declarant, for “[statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present sympt…
Nebraska opinions such as Milo P. Vacanti, Appellant, v. Master Electronics Corporation, a Nebraska Corporation, Appellee are cited where medical diagnosis hearsay is disputed. The court stated: "Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 1989). We disagree." That is the language to brief; the rest of the decision supplies the procedural posture.
State v. Herrera
State v. Herrera, 289 Neb. 575 (2014)
…in making the statements was to assist in the provision of medical diagnosis or treat- ment and (2) that the statements were of a nature reasonably pertinent to medical diagnosis or treatment by a medical professional. 14. Rules of Evidence: Hearsay. Statements admissible under Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2008), need not be made to a physician. 1…
On medical diagnosis hearsay, State v. Herrera speaks to the Nebraska dispute in this passage: "Rules of Evidence: Hearsay. Statements admissible under Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2008), need not be made to a physician." The surrounding opinion shows how the court applied that language to the record.
In re Interest of Xandria P.
In re Interest of Xandria P., 311 Neb. 591 (2022)
…er a statement was both taken and given in contemplation of medical diagnosis or treatment is a factual finding made by the court in determining the admissibility of the evidence under Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2016). 8. Juvenile Courts: Evidence: Appeal and Error. In a juvenile case, just as in a civil case, the admission or exclusion of eviden…
Practitioners open In re Interest of Xandria P. when Nebraska medical diagnosis hearsay turns on the distinction in this sentence: "Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2016). 8. Juvenile Courts: Evidence: Appeal and Error." Do not lift it out of the facts the court was deciding.
State v. Hearnes
State v. Hearnes, 34 Neb. Ct. App. 182 (2026)
…a statement was both taken and given in contempla- tion of medical diagnosis or treatment is a factual finding made by the trial court in determining the admissibility of the evidence. 5. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef- fective assistance of trial counsel may be determined on direct appeal is a question of law. 6. ____: ____. In reviewing c…
State v. Hearnes is worth reading on Nebraska medical diagnosis hearsay because the court put the point in its own words: "Effectiveness of Counsel: Appeal and Error. Whether a claim of inef- fective assistance of trial counsel may be determined on direct appeal is a question of law. 6. ____: ____." Use that passage as the starting point, then read the facts that precede it.
Use of depositions at trial
Neb. Ct. R. § 6-1327 and Neb. Rev. Stat. § 25-1273 govern civil deposition use at trial. Criminal discovery follows Neb. Rev. Stat. § 29-1912; deposition testimony at trial requires Neb. Rev. Stat. § 27-804(2)(a) with unavailability under § 27-804(1).
Deposition use is always a two-layer problem: procedural permission to read or play the deposition, plus a hearsay path (often former testimony, party admission, or impeachment). Counsel who satisfy the civil or criminal procedure rule but skip the evidence-rule foundation invite a sustained objection; counsel who have a hearsay exception but failed to preserve the deposition under the procedural rule face the same result. Video designations, counter-designations, and completeness objections should be teed up before the jury is seated.
Nebraska deposition / former-testimony opinions
Ronald J. Maresh, Personal Representative of the Estate of John Michael Maresh, Deceased, Appellee, v. State of
…a), precluded this lawsuit; (2) admitting into evidence the deposition testimony of plaintiff’s expert witness William Berg, Ph.D.; and (3) determining that the manner in which the State attempted to mark the edge of the highway during the construction project constituted a breach of duty which was a proximate cause of the decedent’s death. In our review of a proceeding under t…
On deposition / former testimony, Ronald J. Maresh, Personal Representative of the Estate of John Michael Maresh, Deceased, Appellee, v. State of speaks to the Nebraska dispute in this passage: "William Berg, Ph.D.; and (3) determining that the manner in which the State attempted to mark the edge of the highway during the construction project constituted a breach of duty which was a proximate cause of the decedent’s death." The surrounding opinion shows how the court applied that language to the record.
State of Nebraska, Appellee, v. Lora L. McKinney, Appellant
State of Nebraska, Appellee, v. Lora L. McKinney, Appellant, 273 Neb. 346 (2007)
…he defendant may request the court to allow the taking of a deposition of any person .'. . who may be a witness in the trial of the offense.” Section 29-1917 further provides that “[t]he court may order the taking of the deposition when it finds the testimony of the witness . . . [m]ay be material or relevant to the issue to be determined at the trial of the offense[.]” Also Mc…
Practitioners open State of Nebraska, Appellee, v. Lora L. McKinney, Appellant when Nebraska deposition / former testimony turns on the distinction in this sentence: "Section 29-1917 further provides that “[t]he court may order the taking of the deposition when it finds the testimony of the witness . . . [m]ay be material or relevant to the issue to be determined at the trial of the offense[." Do not lift it out of the facts the court was deciding.
Margaret L. Sikyta, Appellant and Cross-Appellee, v. Arrow Stage Lines, Inc., Appellee and Cross-Appellant
…e to grab ahold of the seat by me.” MARGARET SIKYTA’S TRIAL Depositions and Sikyta’s Back Problems. In her deposition, Margaret Sikyta stated that she had never seen a physician for back pain before the bus accident, although she did state that she had seen Dr. William Fulcher for “pain in [her] hip area once” before the accident. The morning that trial commenced, the parties’…
On deposition / former testimony, Margaret L. Sikyta, Appellant and Cross-Appellee, v. Arrow Stage Lines, Inc., Appellee and Cross-Appellant speaks to the Nebraska dispute in this passage: "MARGARET SIKYTA’S TRIAL Depositions and Sikyta’s Back Problems. In her deposition, Margaret Sikyta stated that she had never seen a physician for back pain before the bus accident, although she did state that she had seen Dr." The surrounding opinion shows how the court applied that language to the record.
State of Nebraska, Appellee, v. Kevin L. Allen, Appellant
State of Nebraska, Appellee, v. Kevin L. Allen, Appellant, 252 Neb. 187 (1997)
…ed that Allen was the shooter. The State introduced Minor’s deposition testimony which corroborated Perry’s trial testimony. Security photographs were introduced that verify Allen was present at a North Omaha Kwik Shop on August 20 and that Perry and the South Family Blood’s van were at Goodies purchasing gas at 7:35 p.m. that evening. The police lab identified nine latent prin…
Nebraska opinions such as State of Nebraska, Appellee, v. Kevin L. Allen, Appellant are cited where deposition / former testimony is disputed. The court stated: "Allen was the shooter. The State introduced Minor’s deposition testimony which corroborated Perry’s trial testimony." That is the language to brief; the rest of the decision supplies the procedural posture.
Janice H. Menkens, Appellant, v. James T. Finley and Arron W. Finley, Appellees
Janice H. Menkens, Appellant, v. James T. Finley and Arron W. Finley, Appellees, 251 Neb. 84 (1996)
…James T. Finley and Arron W. Finley to testify by videotape deposition rather than requiring the witness to personally appear and testify before the jury. Menkens also claims the trial court erred in overruling her objections to certain testimony of the Finleys’ medical witness, Dr. Duane W. Krause. *86 We reverse the trial court’s judgment and remand the cause to the district…
Janice H. Menkens, Appellant, v. James T. Finley and Arron W. Finley, Appellees is worth reading on Nebraska deposition / former testimony because the court put the point in its own words: "James T. Finley and Arron W. Finley to testify by videotape deposition rather than requiring the witness to personally appear and testify before the jury." Use that passage as the starting point, then read the facts that precede it.
Deloris Anderson, Appellant, v. the Transit Authority of the City of Omaha, a Political Subdivision of the State of
…ection with its business and in admitting into evidence the depositional testimony of a passenger on the bus. The findings of the trial court in an action under the Political Subdivisions Tort Claims Act have the effect of jury findings and will not be disturbed on appeal unless clearly wrong. Stauffer v. School Dist. of Tecumseh, 238 Neb. 594, 473 N.W.2d 392 (1991); Kumar v. D…
Nebraska opinions such as Deloris Anderson, Appellant, v. the Transit Authority of the City of Omaha, a Political Subdivision of the State of are cited where deposition / former testimony is disputed. The court stated: "The findings of the trial court in an action under the Political Subdivisions Tort Claims Act have the effect of jury findings and will not be disturbed on appeal unless clearly wrong. Stauffer v. School Dist. of Tecumseh, 238 Neb. 594, 473 N.W.2d 392 (1991); Kumar v." That is the language to brief; the rest of the decision supplies the procedural posture.
Wendy Olson, Appellant, v. Paul S. Sherrerd, M.D., and Family Ear, Nose and Throat Clinic, P.C., Appellees
…ons, and in not allowing her to take the videotaped “trial” deposition of one of her treating physicians. We conclude that Wendy failed to preserve her assignments of error addressing the causation instruction and her motion for discovery sanctions. Concerning the denial of the taking of the videotaped “trial” deposition, Wendy failed to show that the deposition would have been…
Wendy Olson, Appellant, v. Paul S. Sherrerd, M.D., and Family Ear, Nose and Throat Clinic, P.C., Appellees is worth reading on Nebraska deposition / former testimony because the court put the point in its own words: "We conclude that Wendy failed to preserve her assignments of error addressing the causation instruction and her motion for discovery sanctions." Use that passage as the starting point, then read the facts that precede it.
Walton v. PATIL
Walton v. PATIL, 279 Neb. 974 (2010)
…fied the court that she intended to enter into evidence the deposition testimony of her expert witness, Leon J. Ravvin, M.D. This deposition was taken by Patil's counsel. Patil objected to the use of the deposition, and on April 9, 2008, 5 days before a trial on the merits, the court announced its decision to disallow Ravvin's deposition because it was taken for discovery purpo…
On deposition / former testimony, Walton v. PATIL speaks to the Nebraska dispute in this passage: "Leon J. Ravvin, M.D. This deposition was taken by Patil's counsel." The surrounding opinion shows how the court applied that language to the record.
Authenticity: why it matters and how to prove it
Authenticity is not a hearsay doctrine and it is not optional. Under Neb. Rev. Stat. §§ 27-901, 27-902, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Self-authenticating categories — certified public records, newspapers, acknowledged documents, trade inscriptions, and (where adopted) certified domestic records of a regularly conducted activity — shorten the path, but most trial exhibits still need a sponsoring witness, distinctive characteristics, chain of custody, or process-or-system evidence.
Nebraska agricultural and trucking cases turn on authenticated scale tickets, maintenance logs, and ELD data under Neb. Rev. Stat. § 27-901 before § 27-803(6) business-record foundations are reached.
Why authenticity gets its own section in every Nebraska trial notebook:
- It is a condition precedent. An unauthenticated exhibit never reaches the relevance, hearsay, or privilege analysis in a useful way — the jury never properly considers it.
- Digital evidence multiplies the failure modes. Screenshots, social-media posts, text threads, and cloud downloads require hash values, account attribution, metadata, or a percipient witness who saw the content created or received.
- Chain of custody is authenticity by another name. Drugs, firearms, biological samples, and seized devices are excluded when the links from seizure to lab to courtroom are broken, even if a hearsay exception would otherwise apply to a lab report.
- Business-records shortcuts do not replace authentication. A custodian can explain record-keeping practices and still fail if nobody can say the particular PDF or printout is the record of this patient, this account, or this machine.
- Self-authentication is narrow. Counsel who wave a notarization or a letterhead and skip the rest of Rule 901-style analysis often lose when the document's contents are disputed.
Practical authentication checklist for Nebraska trials: identify the exhibit; choose a 901 method or a 902 category; line up the sponsoring witness or certificate; preserve chain-of-custody testimony for physical and digital items; and separate the authenticity objection from any hearsay objection so the court rules on each.
Nebraska authenticity opinions
STATE of Nebraska, Appellee, v. Sami S. MRZA, Appellant.
STATE of Nebraska, Appellee, v. Sami S. MRZA, Appellant., 926 N.W.2d 79 (2019)
…ugh he assigns multiple errors, we focus on two issues: the authentication requirement for "Snapchat" evidence and the prosecutor's comment on Mrza's use of an interpreter. Because the evidence was properly authenticated, trial counsel did not perform deficiently in failing to object to it. We find no plain error in the prosecutor's closing argument, but determine that the reco…
Practitioners open STATE of Nebraska, Appellee, v. Sami S. MRZA, Appellant. when Nebraska authentication turns on the distinction in this sentence: "Snapchat' evidence and the prosecutor's comment on Mrza's use of an interpreter. Because the evidence was properly authenticated, trial counsel did not perform deficiently in failing to object to it." Do not lift it out of the facts the court was deciding.
State v. Draganescu
State v. Draganescu, 276 Neb. 448 (2008)
…led that (1) the evidence was relevant; (2) it was properly authenticated by testimony that the ticket stub was found on Draganescu's person after he was arrested; and (3) it was admissible under the residual hearsay exception. Draganescu argues that the court erred in all three rulings. (a) Standard of Review In proceedings where the Nebraska Evidence Rules apply, the admissib…
Practitioners open State v. Draganescu when Nebraska authentication turns on the distinction in this sentence: "Draganescu's person after he was arrested; and (3) it was admissible under the residual hearsay exception. Draganescu argues that the court erred in all three rulings." Do not lift it out of the facts the court was deciding.
State of Nebraska, Appellee, v. Romona Anglemyer, Also Known as Romona Werner, Appellant
…ich rule provides, in relevant part: (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 conf…
Practitioners open State of Nebraska, Appellee, v. Romona Anglemyer, Also Known as Romona Werner, Appellant when Nebraska authentication turns on the distinction in this sentence: "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." Do not lift it out of the facts the court was deciding.
State of Nebraska, Appellee, v. Gregory G. Hall, Appellant
State of Nebraska, Appellee, v. Gregory G. Hall, Appellant, 270 Neb. 669 (2005)
…foundation. The documents are simply certified, they’re not authenticated. The statute in this particular area calls for an authenticated document in order for it to be valid. The case law in this particular area accepts certified copies of this Court’s judgment, but has continuously upheld that out-of-state documents have to be authenticated, and those documents are not authen…
Nebraska opinions such as State of Nebraska, Appellee, v. Gregory G. Hall, Appellant are cited where authentication is disputed. The court stated: "The documents are simply certified, they’re not authenticated. The statute in this particular area calls for an authenticated document in order for it to be valid." That is the language to brief; the rest of the decision supplies the procedural posture.
C. Harold Ostler, Appellee and Cross-Appellant, v. City of Omaha Et Al., Appellants and Cross-Appellees
…ter in the district court on the ground that “ no duly authenticated transcript of the proceedings, contained the final order and the decision sought to be set aside, vacated and reversed was filed with the Petition in Error ” as required by sections 25-1905 and 25-1906, R. R. S. 1943. There is no question but that our law requires an authenticated transcript to confe…
On authentication, C. Harold Ostler, Appellee and Cross-Appellant, v. City of Omaha Et Al., Appellants and Cross-Appellees speaks to the Nebraska dispute in this passage: "Petition in Error *” as required by sections 25-1905 and 25-1906, R. R. S. 1943." The surrounding opinion shows how the court applied that language to the record.
State of Nebraska, Appellee, v. Donell King, Appellant
State of Nebraska, Appellee, v. Donell King, Appellant, 272 Neb. 638 (2006)
…ent of Corrections on the ground that such records were not authenticated and constituted hearsay. The district court also sustained King’s objection, on grounds of hearsay and lack of authentication, to an unsigned “Report of Proceedings” purportedly held on October 25, 2004, in the circuit court for Cook County, Illinois. The court also sustained King’s foundation and hearsay…
On authentication, State of Nebraska, Appellee, v. Donell King, Appellant speaks to the Nebraska dispute in this passage: "Corrections on the ground that such records were not authenticated and constituted hearsay." The surrounding opinion shows how the court applied that language to the record.
W. E. Hewit v. Bank of Indian Territory
W. E. Hewit v. Bank of Indian Territory, 64 Neb. 463 (1902)
…proves, itself, and is admissible as evidence without other authentication. *4692. -: -: Declaration or Counsel. But the authenticity of a volume which it is claimed contains the statutes of a foreign state or territory, can not be established by the mere declaration of counsel as to what the volume is. 3.-: -: Appropriate Evidence. The appropriate evidence of the written laws…
W. E. Hewit v. Bank of Indian Territory is worth reading on Nebraska authentication because the court put the point in its own words: "Declaration or Counsel. But the authenticity of a volume which it is claimed contains the statutes of a foreign state or territory, can not be established by the mere declaration of counsel as to what the volume is. 3.-: -: Appropriate Evidence." Use that passage as the starting point, then read the facts that precede it.
Florence Gill, Appellant, v. John S. Hrupek, Doing Business as Johnny Hrupek’s Cafe, Appellee — Carter, J., dissenting
…of exceptions in a case tried in the district court must be authenticated by the certificate of the clerk of such court to entitle it to be considered in the Supreme Court. If a purported bill of exceptions has not been so authenticated, its contents will not be examined or considered by this court for any purpose. * The practice is firmly established and has been consisten…
Florence Gill, Appellant, v. John S. Hrupek, Doing Business as Johnny Hrupek’s Cafe, Appellee — Carter, J., dissenting is worth reading on Nebraska authentication because the court put the point in its own words: "Supreme Court. If a purported bill of exceptions has not been so authenticated, its contents will not be examined or considered by this court for any purpose." Use that passage as the starting point, then read the facts that precede it.
Practice checklist
- State the relevance theory in one sentence before naming an exception.
- Run the 403 / unfair-prejudice balance explicitly for other-acts and graphic exhibits.
- For character or other-acts evidence, identify the non-propensity purpose and request a limiting instruction on the record.
- Decide whether an out-of-court statement is hearsay for the purpose offered before hunting exceptions.
- Lay business-records foundations with time, knowledge, regular practice, and custodial qualifications — or a qualifying certification.
- Prove unavailability with specific facts before offering former testimony or dying declarations.
- Treat deposition use as procedure-plus-hearsay; designate and counter-designate early.
- Authenticate every exhibit under Neb. Rev. Stat. §§ 27-901, 27-902 (or the self-authentication path) before arguing hearsay.
- Preserve chain of custody for physical and digital evidence with named custodians.
- Search LawDiver for recent Nebraska appellate evidence opinions before mediation or motions in limine.
Contents
- General standards of admissibility
- Character evidence
- Hearsay: start with the definition
- Party admissions
- Business records
- Important hearsay exceptions that do not require unavailability
- Declarant unavailable
- Dying declarations
- Medical diagnosis or treatment statements
- Use of depositions at trial
- Authenticity: why it matters and how to prove it
- Practice checklist
- Frequently asked questions
Frequently asked questions
What is the primary evidence source in Nebraska?
Nebraska applies the Nebraska Evidence Rules (Neb. Rev. Stat. §§ 27-101 et seq.). Nebraska codified FRE-based rules in Neb. Rev. Stat. §§ 27-401 et seq.; numbering tracks federal rules with a 27- prefix.
How do Nebraska courts decide relevance and unfair prejudice?
Under Neb. Rev. Stat. §§ 27-401, 27-403, evidence must make a fact of consequence more or less probable, and the court may exclude relevant evidence when unfair prejudice, confusion, or waste of time substantially outweighs its probative value.
Are party admissions hearsay in Nebraska?
Party-opponent statements under Neb. Rev. Stat. § 27-801(4)(b) are generally excluded from the hearsay ban (or treated as an exception, depending on local drafting). They may be offered against the party who made or adopted them without showing unavailability.
What foundation is required for business records?
Under Neb. Rev. Stat. § 27-803(6), show a record made at or near the time from someone with knowledge, kept in the course of a regularly conducted activity, as a regular practice, through a custodian, qualified witness, or allowed certification — subject to trustworthiness attack.
When can I use a deposition at trial in Nebraska?
Neb. Ct. R. § 6-1327 and Neb. Rev. Stat. § 25-1273 govern civil deposition use at trial. Criminal discovery follows Neb. Rev. Stat. § 29-1912; deposition testimony at trial requires Neb. Rev. Stat. § 27-804(2)(a) with unavailability under § 27-804(1).
Why is authenticity separate from hearsay?
Authenticity asks whether the item is what you claim it is; hearsay asks whether out-of-court assertions inside it may be used for their truth. You can lose on either ground independently. Nebraska authenticity practice starts with Neb. Rev. Stat. §§ 27-901, 27-902.
Where do dying declarations and medical statements fit?
Dying declarations under Neb. Rev. Stat. § 27-804(2)(b) require belief in impending death and concern the cause or circumstances of that believed death. Medical statements under Neb. Rev. Stat. § 27-803(4) require a genuine diagnostic or treatment purpose and reasonable pertinence to care.