27-414. Criminal use; evidence of similar crimes in sexual assault cases.
(1) In a criminal case in which the accused is accused of an offense of sexual assault, evidence of the accused's commission of another offense or offenses of sexual assault is admissible if there is clear and convincing evidence otherwise admissible under the Nebraska Evidence Rules that the accused committed the other offense or offenses. If admissible, such evidence may be considered for its bearing on any matter to which it is relevant.
(2) In a case in which the prosecution intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the accused, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.
(3) Before admitting evidence of the accused's commission of another offense or offenses of sexual assault under this section, the court shall conduct a hearing outside the presence of any jury. At the hearing, the rules of evidence shall apply and the court shall apply a section 27-403 balancing and admit the evidence unless the risk of prejudice substantially outweighs the probative value of the evidence. In assessing the balancing, the court may consider any relevant factor such as (a) the probability that the other offense occurred, (b) the proximity in time and intervening circumstances of the other offenses, and (c) the similarity of the other acts to the crime charged.
(4) This section shall not be construed to limit the admission or consideration of evidence under any other section of the Nebraska Evidence Rules.
Source
Annotations
1. Procedure
2. Miscellaneous
1. Procedure
The trial court did not err in admitting evidence under this section using the following procedures: (1) hearing testimony from the accused's prior victims prior to trial, comparing the testimony to the current charges, making a conditional ruling of admissibility, and prohibiting the State from mentioning or presenting evidence of the prior assaults at trial until after the evidence of the current alleged victims, and (2) after the State presented evidence of the current victims at trial and gave notice of its intent to present evidence under this section, making a final determination of admissibility outside the presence of the jury. State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013).
This section requires a hearing outside the presence of the jury before the court admits evidence of the accused's commission of another offense of sexual assault, but it does not impose any time requirement as to when the hearing must be held. State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013).
A hearing on prior bad acts evidence is not required if the evidence forms the factual setting of the charged offenses and is necessary to present a complete and coherent picture of the facts. State v. Kelly, 20 Neb. App. 871, 835 N.W.2d 79 (2013).
2. Miscellaneous
Because the standard set forth as to the question of whether allegations of sexual assault were proved for purposes of this section is lower than the standard of proof the State is held to in prosecuting those allegations, the principles of collateral estoppel do not bar the admission of such evidence in the situation where the defendant was acquitted of the prior allegations. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
Despite the prejudice inherent in allegations of sexual assault, the Legislature enacted this section permitting the admission of such evidence. Assuming that this evidence met the balancing test of this section, the Legislature set no limitation on a fact finder's use of this evidence. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
Under section 27-404, other types of character or bad acts evidence are presumed to be inadmissible, and where admissible for one or more of the particular purposes as set forth by section 27-404, the evidence may be considered only for those purposes. Thus, while section 27-404 is a rule of exclusion, this section is a rule of admissibility. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
Under this section, assuming that notice and hearing requirements are met and the evidence survives a more-probative-than-prejudicial balancing test, evidence of prior sexual assaults are admissible if proved by clear and convincing evidence. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
While the fact that a defendant was acquitted of sexual assault charges in a prior prosecution does not affect the threshold admissibility of the evidence under this section, it is relevant to the undue prejudice analysis conducted under this section and under section 27-403. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
This section allows evidence of prior offenses of sexual assault to prove propensity. State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013).
Under the plain language of subsection (3)(c) of this section, the court is to compare the similarity of the other acts to the crime charged. State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013).
The question whether evidence of other conduct is too remote in time is largely within the discretion of the trial court. Remoteness, in and of itself, does not necessarily justify exclusion of evidence. State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012).
This section does not violate the Ex Post Facto Clauses of the federal and state Constitutions. State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012).
Under this section, evidence of a prior sexual assault is admissible if there is clear and convincing evidence otherwise admissible under the Nebraska Evidence Rules. As such, this section governs the admissibility of evidence, not its sufficiency. State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012).
This section does not change the law regarding acts which are inextricably intertwined to the charged offenses, so that acts that were not considered extrinsic and therefore not subject to section 27-404 before are not extrinsic and not subject to this section now. State v. Kelly, 20 Neb. App. 871, 835 N.W.2d 79 (2013).
Trial court did not abuse its discretion in admitting evidence of a prior sexual assault where the defendant admitted to committing the earlier offense, both offenses involved young boys, and both occurred at a time when the defendant was acting as a babysitter for the boys. State v. Craigie, 19 Neb. App. 790, 813 N.W.2d 521 (2012).