State v. Herrera
289 Neb. 575
| Neb. | 2014Background
- Carlos and Jennifer Herrera were tried jointly for intentional child abuse causing serious bodily injury to their son A.H.; Carlos was convicted of the lesser-included offense and appealed.
- The State relied on expert testimony diagnosing A.H. with psychosocial short stature (PSS) to prove the element of "serious bodily injury."
- Two State experts (a geneticist/pediatrician and a child‑abuse pediatrician) testified that medical testing ruled out genetic/metabolic causes and that A.H. experienced a marked growth spurt after removal from the home, supporting a PSS diagnosis.
- Defense challenged PSS testimony under Daubert/Schafersman, sought admission of recorded forensic (Capstone) interviews to show suggestive questioning and shifting accounts, and objected to prior‑acts evidence (2005 fractures).
- The district court admitted the PSS expert testimony after a gatekeeping hearing, excluded full recorded interviews as hearsay (but allowed impeachment excerpts), and admitted prior‑acts evidence; on appeal the Nebraska Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of PSS expert testimony (Daubert/Schafersman) | State: PSS is a medically recognized diagnosis; experts used reliable differential‑diagnosis methodology and fit the facts. | Herrera: PSS is "junk science" and experts’ methodology/fit were unreliable. | Admitted: Court held experts qualified, methodology reliable, PSS generally accepted, and testimony fit the facts. |
| Admission of recorded Capstone interviews (hearsay / Rule 803(3)) | Herrera: Recordings offered not for truth but to show suggestive interviewing and changed statements; alternatively admissible under medical‑diagnosis exception. | State: Recordings are hearsay; defense failed to identify specific non‑hearsay excerpts or foundation for Rule 803(3). | Excluded in full: Court ruled recordings contained hearsay, defense should have offered specific excerpts; not admissible under Rule 803(3) here. |
| Use of defense expert to impeach interviewing technique | Herrera: Needed to show improper techniques contaminated children's statements. | State: Full tapes would be prejudicial/hearsay; limited excerpts appropriate. | Allowed in substance: Defense expert testified and quoted interviews to show suggestive techniques, so issue was presented to jury without full tapes. |
| Admission of prior acts (2005 injuries) under Rules 403/404 | Herrera: Prior‑acts evidence was more prejudicial than probative and should be excluded. | State: Prior injuries relevant to show chronic stress, intent, absence of accident, and support PSS theory. | Admitted: Pretrial ruling upheld; Herrera failed to renew contemporaneous objection at trial, waiving appellate review. |
Key Cases Cited
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (U.S. 1993) (federal gatekeeping standard for scientific expert admissibility)
- Schafersman v. Agland Coop, 262 Neb. 215 (Neb. 2001) (Nebraska adoption of Daubert factors)
- Casillas v. State, 279 Neb. 820 (Neb. 2010) (applying Daubert/Schafersman and gatekeeping role)
- Carlson v. Okerstrom, 267 Neb. 397 (Neb. 2004) (reliability of differential diagnosis)
- McNeel v. Union Pacific R.R. Co., 276 Neb. 143 (Neb. 2008) (expert “fit” analysis; large analytical leap undermines admissibility)
- State v. Vigil, 283 Neb. 129 (Neb. 2012) (Rule 803(3) and dual‑purpose interviews admissible when conducted in contemplation of medical diagnosis or treatment)