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State v. Mason, 709 N.W.2d 638 (Neb. 2006)

Case (cite)
State v. Mason, 709 N.W.2d 638 (Neb. 2006)
Type of proceeding
Type of claim
Type of claim (second claim)
Expert evidence ruling reversing or affirming on appeal:
What was the ruling?
Correct to Admit
Type of evidence at issue:
Firearms identification
Defense or Prosecution Expert
Name of expert(s) who were the subject of the ruling
Mark S. Bohaty
Summary of reasons for ruling
Defendant argues the trial court erred in admitting the firearms testimony and specifically that the trial court erred by putting the burden on the defendant to prove unreliaiblity and failing to give adequate analysis of its reasons for admitting th evidence. The court concludes the trail court did not abuse its discretion by admitting the testimony. The court explains that the party opposing the expert has the burden to sufficiently call into question the reliability of the testimony before the burden shifts to the proponent to show it is reliable. The trial court properly followed this rule. Further, the court holds that although the trial court's analysis wasn't "as extensive as might have been appropriate in a more complicated case," it was nonetheless adequate here. The type of testimony here was not novel or new and was routine making an extensive Daubert analysis less necessary. This type of testimony has been commonly admitted in Nebraska. The court also concludes that "that the foundation established by the State supported the court's conclusions that Bohaty was qualified to testify as a firearms expert, that the methodologies used by Bohaty could be applied to the evidence in this case, and that Bohaty's testimony was more probative than prejudicial."
The jurisdiction’s standard for expert admissibility at the time – list all that apply: (Frye), (Daubert), (Post-2000 Rule 702), (Other)
Second standard
Rule 702
Did lower court hold a hearing
Names of prosecution expert(s) two testified at hearing
Names of defense expert(s) who testified at hearing (or None).
Discussion of 2009 NAS Report (NAS2009)
Discussion of 2016 PCAST report (PCAST)
Discussion of error rates / reliability
Frye Ruling
Limiting testimony ruling
Language imposed by court to limit testimony
Ruling based in prior precedent / judicial notice
Daubert ruling emphasizing – which factors – (list 1-5)
Ruling on qualifications of expert
Ruling on 702(a) – the expert will help / assist the jury
Ruling on 702(b) – the testimony is based on sufficient facts or data
Ruling on 702(c) – the testimony is the product of reliable principles and methods
Ruling on 702(d) – reliable application of principles and methods to the facts of the case


“In the present case, Mason filed an initial motion in limine challenging Bohaty’s testimony. The motion in limine was a general challenge which failed to specify the aspects of Bohaty’s testimony that Mason asserted to be unreliable. In reaction to the initial motion in limine, the court ordered Bohaty to submit himself for deposition and ordered Mason to specify the inadequacies of the expert’s testimony. The court thus aided Mason in sufficiently calling into question aspects of Bohaty’s testimony.”




In the present case, the court in its order gave reasons why it found that Bohaty’s testimony was reliable. Although the court’s analysis was not as extensive as might have been appropriate in a more complicated case, given the subject matter at issue, the court’s analysis was adequate. In Zimmerman, we acknowledged that the Daubert model recognizes that “a range of reasonable methods exists for distinguishing reliable expert testimony from false expertise.”


The type of ballistics and firearms testimony that Bohaty presented in this case was not novel and is fairly routine in cases involving the use of firearms. Therefore, the Daubert analysis did not need to be as extensive as it might have been if the testimony involved more complicated, less routine methods of testing.


Similar to the expert testimony in Leibhart, the type of ballistics and firearms testimony to which Bohaty testified in this trial has commonly been admitted in this state. See, State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998); State v. Kula, 252 Neb. 471, 562 N.W.2d 717 (1997); State v. Perrigo, 244 Neb. 990, 510 N.W.2d 304 (1994); State v. Carter, 241 Neb. 645, 489 N.W.2d 846 (1992); State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990); State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988). Expert testimony similar to that given in this case has been found reliable under a Daubert analysis in other jurisdictions.