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

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

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

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

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

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

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

Source

Annotations

1. Offer of proof

2. Timely objection

3. Substantial rights

4. Specific objection

5. Miscellaneous

1. Offer of proof

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

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

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

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

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

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

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

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

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

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

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

2. Timely objection

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

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

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

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

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

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

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

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

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

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

3. Substantial rights

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

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

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

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

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

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

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

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

4. Specific objection

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

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

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

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

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

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

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

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

5. Miscellaneous

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

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

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