27-104. Rule 104. Preliminary questions; questions of admissibility, generally; relevancy conditioned on fact; hearing of jury; testimony by accused; weight and credibility.

(1) Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the judge, subject to the provisions of subsection (2) of this section.

(2) When the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

(3) Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness, if he so requests.

(4) The accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case.

(5) This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

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Annotations

1. Qualification of witness as expert

2. Miscellaneous

1. Qualification of witness as expert

Per subsection (1) of this section, a trial court's factual finding concerning a determination whether a witness qualifies as an expert under section 27-702 will be upheld on appeal unless clearly erroneous. State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996).

A trial court's ruling regarding a witness' qualification as an expert will be upheld unless such ruling is clearly erroneous. State v. Stahl, 240 Neb. 501, 482 N.W.2d 829 (1992); In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992); State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).

Whether a witness is qualified to testify as an expert under section 27-702 is a preliminary question of admissibility for a trial court under subsection (1) of this section. State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).

Subsection (1) of this section serves as a guidepost under parental termination cases regarding whether a witness is qualified to testify as an expert. In re Interest of Phoebe S. and Rebekah S., 11 Neb. App. 919, 664 N.W.2d 470 (2003).

Under subsection (1) of this section, the trial court's admission of testimony by banker as expert witness regarding security agreement was not an abuse of discretion. Skiles v. Security State Bank, 1 Neb. App. 360, 494 N.W.2d 355 (1992).

2. Miscellaneous

In a criminal case, the Nebraska rules of evidence do not apply to hearings to determine preliminary questions of admissibility, including suppression hearings. State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014).

This section was never intended to treat preliminary questions of admissibility differently than Fed. R. Evid. 104(a). State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014).

Unlike its counterpart in the Federal Rules of Evidence, subsection (1) of this section requires a court to first determine whether evidence is admissible under the hearsay rules before considering whether it is properly authenticated. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

A trial court has broad discretion in determining how to perform its gatekeeper function, and nothing prohibits it from hearing a Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), motion during trial. State v. Aguilar, 268 Neb. 411, 683 N.W.2d 349 (2004).

A hearing on preliminary matters concerning admissibility of evidence shall be conducted when the interests of justice require, or when a defendant is a witness, if the defendant so requests. State v. Olsan, 231 Neb. 214, 436 N.W.2d 128 (1989).

At a hearing to suppress evidence, the court, as the trier of fact, is the sole judge of the credibility of witnesses and the weight to be given to their testimony and other evidence. The Supreme Court will uphold the trial court's finding of fact in a suppression hearing unless those findings are clearly wrong. State v. Vann, 230 Neb. 601, 432 N.W.2d 810 (1988).

Whether the State has established a prima facie case of conspiracy, thereby constituting anything within execution or furtherance of the common purpose as the act of every coconspirator, is a preliminary question for the trial court. State v. Copple, 224 Neb. 672, 401 N.W.2d 141 (1987).

Pursuant to subsection (3) of this section, the voluntariness of a statement is first determined by the trial court as a matter of law out of the presence of the jury. If the court finds the statement to be voluntary and admissible, the question of voluntariness is submitted to the jury which, by appropriate evidence, must be satisfied that the statement is voluntary. State v. Bodtke, 219 Neb. 504, 363 N.W.2d 917 (1985).