State v. Draper, 289 Neb. 777

Background

Peter Draper (grandfather) was convicted of intentional child abuse resulting in death and serious bodily injury after 2-year-old Joseph Rinehart, Jr. died; key eyewitness was the child’s mother, Laura Rinehart, who testified for the State in exchange for a lighter sentence.
Nancy Draper (Draper’s wife and the child’s grandmother) had confessed to investigators but her counsel informed the court she intended to invoke the Fifth Amendment if called at trial.
The State called Nancy before the jury, she invoked the privilege, the court informed her immunity would be granted, she continued to refuse to answer, and the prosecutor used leading questions to read inculpatory statements Nancy had given to investigators.
Draper objected, asked for a jury admonition and a posttrial instruction that no inference be drawn from Nancy’s invocation of the privilege; the court denied these requests and also did not allow Draper to cross-examine Nancy because she refused to testify.
Draper was convicted on both counts, moved for a new trial (denied), and appealed arguing violations of the Confrontation Clause, Neb. Evid. R. 513, and trial-court error in failing to give curative instructions.

Issues

Issue	Draper’s Argument	State’s Argument	Held
Whether the court erred in permitting Nancy to invoke the Fifth Amendment in front of the jury	Trial court should have avoided jury exposure under Neb. Evid. R. 513 and not call a witness known to invoke the privilege	State argued it planned to offer use immunity and § 27-513 was inapplicable once immunity was offered	Court: Error — privilege should have been claimed, absent extraordinary circumstances, outside jury view; no such circumstances existed
Whether continued leading questioning and reading of Nancy’s prior statements after she refused to testify violated rights	Prosecutor’s use of Nancy’s statements deprived Draper of ability to cross-examine and improperly placed critical weight on her refusal	State argued it sought nonprivileged testimony and offered immunity; denied Draper procured the refusal	Court: Error — permitting the prosecutor to read Nancy’s statements while she refused to testify violated the Confrontation Clause; Draper had no meaningful opportunity to cross-examine
Whether Draper was denied his Sixth Amendment right to confront witnesses by being prevented from cross-examining Nancy	Draper lacked any opportunity for cross-examination because Nancy gave no substantive answers; statements read by prosecutor were not subject to cross-examination	State claimed Draper waived the issue and was responsible for Nancy’s refusal	Court: Held Draper was deprived of confrontation rights; record did not establish Draper procured the refusal
Whether the trial court erred in refusing to admonish or give a curative jury instruction about Nancy’s invocation	Admonition or instruction was necessary and requested under § 27-513(3) to cure prejudice	State did not adequately cure the exposure and made closing references to Nancy’s refusal	Court: Error — failure to give admonition or the requested instruction was prejudicial and, combined with other errors, reversible

Key Cases Cited

Namet v. United States, 373 U.S. 179 (1963) (sets two-prong test when calling a witness expected to invoke privilege — prosecutorial misconduct or when inferences from refusal add critical weight)
Douglas v. Alabama, 380 U.S. 415 (1965) (reading a non-testifying witness’s statements to the jury can violate the Confrontation Clause where the defendant cannot cross-examine)
Delaware v. Van Arsdall, 475 U.S. 673 (1986) (cross-examination is critical to the factfinding process; limitations may require reversal depending on prejudice)
State v. Robinson, 271 Neb. 698 (2006) (interpreting Neb. Evid. R. 513 and advising courts to avoid jury exposure to privilege claims when practicable)
State v. Leibel, 286 Neb. 725 (2013) (discusses Confrontation Clause principles applied in Nebraska)

Conclusion: The Nebraska Supreme Court reversed and remanded for a new trial, concluding cumulative errors — allowing a known-privilege invocation before the jury, permitting the State to read Nancy’s statements while she refused to testify, and failing to give a curative instruction — violated Draper’s confrontation rights and Neb. Evid. R. 513 and were not harmless.