949 N.W.2d 799
Neb. Ct. App.2020Background
- Victim J.E., age 4, alleged her grandfather Robert E. Edwards, Sr. digitally penetrated her at a public pool on June 19, 2017; a forensic interview and medical exam showed injuries consistent with digital penetration.
- Law enforcement interviewed Edwards; he denied wrongdoing and was later arrested and charged with first-degree child sexual assault (Neb. Rev. Stat. § 28-319.01).
- Before trial the district court admitted (a) testimony about prior bad acts against the victim’s sister and cousin under § 27-414, (b) J.E.’s out-of-court statements as excited utterances and under the medical-diagnosis exception, and (c) expert testimony by Dr. Susan Greenwald about “grooming” without a full Daubert/Schafersman reliability analysis.
- The court denied Edwards’ motion to suppress his statements, finding the contacts were noncustodial and Miranda warnings were not required.
- A jury convicted Edwards and he was sentenced to 25–30 years’ imprisonment; on appeal the Nebraska Court of Appeals reversed and remanded for a new trial, holding the trial court failed to perform its Daubert/Schafersman gatekeeping regarding grooming testimony.
- The court upheld admission of J.E.’s statements (excited utterance and medical-treatment exception) and found suppression was properly denied; it also held double jeopardy did not bar retrial because the total evidence (including the erroneously admitted grooming testimony) was sufficient to support the verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of expert "grooming" testimony (Daubert/Schafersman) | Greenwald was qualified; grooming testimony is relevant and assists the jury | Grooming theory is unreliable, untested, not peer-reviewed, prejudicial; court failed to perform Daubert gatekeeping | Court reversed: trial court failed to perform required Daubert/Schafersman analysis; admission was prejudicial error and requires new trial |
| Admission of prior bad-act evidence under § 27-414 | Prior offenses against sister and cousin are similar and probative to show pattern; admissible under statute | Prior acts are unfairly prejudicial and not properly limited | Court admitted evidence re: sister and cousin at trial; on appeal Edwards waived challenge to some testimony by failing to preserve § 27-414 objections; trial rulings otherwise sustained |
| Admissibility of J.E.’s out-of-court statements (hearsay) | Statements to parents and forensic interviewer are admissible as excited utterances and under medical-diagnosis/treatment exception | Hearsay; double-hearsay problems; investigator presence taints medical-purpose claim | Court held parents’ testimony admissible as excited utterances and interviewer-to-medical examiner statements admissible under medical-diagnosis/treatment exception; Peters’ relay to Greenwald likewise admissible |
| Motion to suppress Edwards’ statements (Miranda/custody) | Statements were voluntary and noncustodial; Miranda not required | Statements were product of custodial interrogation without Miranda warnings and should be suppressed | Court found Edwards was not in custody during encounters shown on bodycam; denial of suppression upheld |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (trial court gatekeeping requirement for scientific expert testimony)
- Schafersman v. Agland Coop., 262 Neb. 215 (Neb. 2001) (Nebraska application of Daubert standards)
- Miranda v. Arizona, 384 U.S. 436 (1966) (Miranda warnings required when custodial interrogation occurs)
- State v. Jedlicka, 297 Neb. 276 (Neb. 2017) (scope of medical-diagnosis/treatment hearsay exception in child-abuse context)
- State v. Simmer, 304 Neb. 369 (Neb. 2019) (Daubert gatekeeping and expert admissibility principles)
- Gonzales v. Nebraska Pediatric Practice, 26 Neb. App. 764 (Neb. Ct. App. 2019) (trial court must make specific on-record findings when performing Daubert analysis)
- State v. Henley, 363 Or. 284 (Or. 2018) (reversal where grooming evidence admitted without prior reliability determination)