Committee hears LB789 to codify forfeiture-by-wrongdoing hearsay exception

Lincoln — Sen. Carolyn Bosin told the Judiciary Committee that LB789 would adopt Nebraskaʼs version of the forfeiture-by-wrongdoing hearsay exception modeled on the federal rule so that prior statements by a witness who is later unavailable can be admitted if a defendant intentionally caused that unavailability.

"A defendant should not benefit from silencing a witness," Bosin said, describing the doctrine as particularly important in domestic-violence and human-trafficking cases where intimidation and coercion are common.

Prosecutors and the attorney generalʼs office supported the bill as a codification of a generally accepted evidentiary doctrine; Assistant Attorney General George Welch and deputy county prosecutors described how courts sometimes struggle to admit testimonial statements when witnesses later refuse to testify because of threats. Supporters said the bill would narrow inconsistent prosecutions and prevent intimidation from allowing defendants to avoid accountability.

Opponents — including the Nebraska Criminal Defense Attorneys Association and individual defense practitioners — argued the bill lacked clarity on procedures for proving that a defendant caused a witnessʼs unavailability, raised concerns about introducing evidence without a live witness for cross-examination and noted the proposed preponderance standard as different from criminal-burden norms. They suggested tighter drafting language or restricting the provision to narrowly defined circumstances, and asked the sponsor to consider suggested edits.

Senators asked questions about the burden of proof, how the factual predicate would be established at a pretrial hearing, and how the rule would interact with existing rules on unavailable witnesses. The sponsor said she would continue to work with opponents on clarifying language and process safeguards.