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LEGISLATURE OF NEBRASKA
ONE HUNDRED NINTH LEGISLATURE
SECOND SESSION
LEGISLATIVE BILL 789
Introduced by Bosn, 25.
Read first time January 07, 2026
Committee: Judiciary
A BILL FOR AN ACT relating to the Nebraska Evidence Rules; to amend1
section 27-804, Reissue Revised Statutes of Nebraska; to provide for2
an exclusion from the hearsay rule for a statement offered against a3
party that wrongfully caused the declarant's unavailability; to4
harmonize provisions; and to repeal the original section.5
Be it enacted by the people of the State of Nebraska,6
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Section 1. Section 27-804, Reissue Revised Statutes of Nebraska, is1
amended to read: 2
27-804 (1) Unavailability as a witness includes situations in which3
the declarant: 4
(a) Is exempted by ruling of the judge on the ground of privilege5
from testifying concerning the subject matter of the declarant's his6
statement; or 7
(b) Persists in refusing to testify concerning the subject matter of8
the declarant's his statement despite an order of the judge to do so; or9
(c) Testifies to lack of memory of the subject matter of the10
declarant's his statement; or 11
(d) Is unable to be present or to testify at the hearing because of12
death or then existing physical or mental illness or infirmity; or13
(e) Is absent from the hearing and the proponent of the declarant's14
his statement has been unable to procure the declarant's his attendance15
by process or other reasonable means. 16
A declarant is not unavailable as a witness if the declarant's his17
exemption, refusal, claim of lack of memory, inability, or absence is due18
to the procurement or wrongdoing of the proponent of the declarant's his19
statement for the purpose of preventing the witness from attending or20
testifying. 21
(2) Subject to the provisions of section 27-403, the following are22
not excluded by the hearsay rule if the declarant is unavailable as a23
witness: 24
(a) Testimony given as a witness at another hearing of the same or a25
different proceeding, or in a deposition taken in compliance with law in26
the course of the same or a different proceeding, at the instance of or27
against a party with an opportunity to develop the testimony by direct,28
cross, or redirect examination, with motive and interest similar to those29
of the party against whom now offered; 30
(b) A statement made by a declarant while believing that the31
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declarant's his death was imminent, concerning the cause or circumstances1
of what the declarant he believed to be the declarant's his impending2
death; 3
(c) A statement which was at the time of its making so far contrary4
to the declarant's pecuniary or proprietary interest, or so far tended to5
subject the declarant him to civil or criminal liability or to render6
invalid a claim by the declarant him against another, that a reasonable7
person man in the declarant's his position would not have made the8
statement unless such person he believed it to be true. A statement9
tending to expose the declarant to criminal liability and offered to10
exculpate the accused is not admissible unless corroborating11
circumstances clearly indicate the trustworthiness of the statement;12
(d)(i) A statement concerning the declarant's own birth, adoption,13
marriage, divorce, legitimacy, relationship by blood, adoption, or14
marriage, ancestry, or other similar fact of personal or family history,15
even though declarant had no means of acquiring personal knowledge of the16
matter stated; or (ii) a statement concerning the foregoing matters, and17
death also, of another person, if the declarant was related to the other18
by blood, adoption, or marriage or was so intimately associated with the19
other's family as to be likely to have accurate information concerning20
the matter declared; or 21
(e) A statement offered against a party that wrongfully caused, or22
acquiesced in wrongfully causing, the declarant's unavailability as a23
witness, and did so intending that result; or 24
(f) (e) A statement not specifically covered by any of the foregoing25
exceptions but having equivalent circumstantial guarantees of26
trustworthiness, if the court determines that (i) the statement is27
offered as evidence of a material fact, (ii) the statement is more28
probative on the point for which it is offered than any other evidence29
which the proponent can procure through reasonable efforts, and (iii) the30
general purposes of these rules and the interests of justice will best be31
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served by admission of the statement into evidence. A statement may not1
be admitted under this exception unless the proponent of it makes known2
to the adverse party, sufficiently in advance of the trial or hearing to3
provide the adverse party with a fair opportunity to prepare to meet it,4
the proponent's his intention to offer the statement and the particulars5
of it, including the name and address of the declarant.6
Sec. 2. Original section 27-804, Reissue Revised Statutes of7
Nebraska, is repealed. 8
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