NE Code § 27-801 (2021)
2021 Nebraska Revised Statutes|Chapter 27 - Courts; Rules of Evidence|27-801 - Rule 801. Definitions; statement, declarant, hearsay; statements which are not hearsay.

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 "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).