Trial-Only Confrontation Rights and Expanded Medical-Diagnosis Hearsay in Nebraska Mental Health Commitments: Commentary on In re Interest of M.S., 320 Neb. 451 (2025)

I. Introduction

The Nebraska Supreme Court’s decision in In re Interest of M.S., 320 Neb. 451 (2025), is a significant contribution to the law governing civil commitment proceedings under the Nebraska Mental Health Commitment Act (the “Act”), Neb. Rev. Stat. §§ 71‑901 to 71‑963. The opinion clarifies the scope of confrontation rights in commitment cases, refines the application of the hearsay exception for medical diagnosis or treatment, and reaffirms the evidentiary and substantive standards for finding a person “mentally ill and dangerous” and for ordering inpatient treatment and forced medication as the least restrictive alternative.

The case arose from a petition to commit M.S., a former law enforcement officer with a history of serious mental illness and firearm ownership. After an incident at her daughter’s home involving a declared possession of a handgun, kicking at doors, and statements perceived as paranoid and tied to the FBI, the State sought her commitment as a “mentally ill and dangerous person” under § 71‑908. The Mental Health Board of the Fourth Judicial District ordered commitment and authorized forced medication. The district court, on de novo review, affirmed. M.S. then appealed to the Nebraska Supreme Court.

On appeal, M.S. advanced three main clusters of arguments:

1. Her statutory and constitutional confrontation rights were violated, particularly during the hearing on her motion to continue, and by the admission of certain hearsay at the commitment hearing.
2. The Mental Health Board improperly received and relied on hearsay—both family members’ statements relayed through her psychiatrist and the results of psychological testing performed by another clinician.
3. The evidence was insufficient, under the clear-and-convincing standard, to support findings that she was (a) mentally ill as diagnosed, (b) “mentally ill and dangerous” under § 71‑908, and (c) subject to commitment and forced medication as the “least restrictive alternative” under § 71‑925.

The Nebraska Supreme Court, in an opinion by Justice Papik, affirmed. In doing so, it established an important new rule: the confrontation rights conferred by § 71‑954 in mental health commitment proceedings are trial rights, equivalent to Sixth Amendment confrontation rights in criminal cases, and do not extend to pretrial hearings, such as hearings on motions to continue. The Court also clarified the scope of the medical-diagnosis hearsay exception as applied to statements by family members to mental health professionals in commitment proceedings.

II. Summary of the Opinion

The Court structured its analysis around three core issues:

1. Confrontation at the continuance hearing. The Court held that the confrontation rights in § 71‑954—expressly made “equivalent” to Sixth Amendment and Nebraska constitutional confrontation rights—are trial-only rights, and therefore do not apply to pretrial hearings in mental health commitment proceedings. The Board therefore did not violate M.S.’s statutory confrontation rights when it heard and relied on testimony from her psychiatrist at the motion-to-continue hearing without affording cross-examination.
2. Confrontation and hearsay at the commitment hearing.
   • As to the psychiatrist’s testimony about psychological testing conducted by another doctor (Dr. Gillespie), the Court assumed that even if there was confrontation or hearsay error, any error was harmless because the challenged testimony was cumulative of other, properly admitted evidence that M.S. could “fake good” and conceal her symptoms.
   • As to statements by M.S.’s children relayed through the psychiatrist, the Court held those statements were admissible under the medical-diagnosis-or-treatment hearsay exception, § 27‑803(4). It also held that any confrontation challenge was not preserved because M.S. objected only on hearsay grounds at trial.
3. Sufficiency of the evidence on commitment and treatment. Applying its deferential “clear and convincing evidence” review, the Court held that:
   • There was sufficient evidence to support the psychiatrist’s diagnosis of bipolar I disorder, manic with psychosis, thus satisfying the statutory definition of “mentally ill” in § 71‑907.
   • There was clear and convincing evidence that M.S. was “mentally ill and dangerous” under § 71‑908(1), because her illness led her to act in ways that placed family members in reasonable fear of “substantial risk of serious harm,” even without explicit threats or past serious violence.
   • Inpatient hospitalization with outpatient follow-up, and authorization of forced medication via long-acting injectable antipsychotic, constituted the least restrictive alternative, given M.S.’s history of treatment noncompliance and firearm access.

The judgment of the district court was therefore affirmed in full; the commitment order and treatment plan, including forced medication, remained in place.

III. Detailed Analysis

A. Standards of Review and the Structure of Mental Health Appeals

The Court began by reiterating the distinctive two-tier appellate structure in Nebraska mental health commitment cases:

• District court review: Under In re Interest of S.J., the district court reviews the Mental Health Board’s decision de novo on the record—it reweighs the evidence and reaches its own factual and legal determinations, constrained only by the written and transcribed record from the Board.
• Nebraska Supreme Court (and Court of Appeals) review: The Supreme Court does not conduct its own de novo review. Instead, it affirms unless, as a matter of law, the district court’s decision is not supported by clear and convincing evidence. Put differently, the question becomes:

  Viewing the evidence in the light most favorable to the State, could any rational trier of fact have found the statutory elements for commitment by clear and convincing evidence?

This mirrors the criminal “sufficiency of the evidence” standard (State v. Falcon) but adjusts the burden from “beyond a reasonable doubt” to “clear and convincing evidence,” as recognized in In re Interest of T.W.. The Court again defines “clear and convincing” (drawing on Benjamin S. v. Crystal S.) as evidence that produces a firm belief or conviction in the fact-finder, higher than a preponderance but below reasonable doubt.

On evidentiary questions where no discretion is involved (e.g., whether certain facts meet the requirements of a hearsay exception), the Court applies de novo review as a matter of law, following State v. Boswell. This is important in this case because the admissibility of the family members’ statements and testing results turned on a pure application of the Rules of Evidence.

B. Confrontation Rights in Mental Health Commitment Proceedings

1. Statutory framework: § 71‑954

At the time of the proceedings, § 71‑954 stated that a commitment subject:

“shall have the right at a hearing held under the Nebraska Mental Health Commitment Act … to confront and cross-examine adverse witnesses and evidence equivalent to the rights of confrontation granted by Amendments VI and XIV of the United States Constitution and Article I, section 11, of the Constitution of Nebraska.”

The statute thus incorporates, by reference, traditional confrontation rights from:

• The Sixth Amendment to the U.S. Constitution (“the accused shall enjoy the right … to be confronted with the witnesses against him”), and
• Neb. Const. art. I, § 11 (“the accused shall have the right … to meet the witnesses against him face to face”).

Nebraska precedent holds that the state constitutional confrontation right is coextensive with the federal right (State v. Smith), and that § 71‑954 extends equivalent confrontation protections to respondents in mental health commitment hearings (In re Interest of S.B.).

2. New holding: Confrontation rights are “trial rights” and do not apply to pretrial hearings

The central new rule of In re Interest of M.S. appears in the Court’s treatment of the denial of confrontation at the motion-to-continue hearing. M.S. argued that she had a statutory right to confront and cross-examine her psychiatrist when the State opposed her motion for a 90‑day continuance. The Board allowed the State to call and question the psychiatrist, then cut off the proceeding and denied the motion to continue without affording M.S. cross-examination or a Board vote on the record.

The Court rejected M.S.’s confrontation claim by expressly importing criminal confrontation doctrine:

• Citing State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009), the Court reaffirmed that federal Confrontation Clause rights are “trial rights” that do not extend to pretrial hearings in state proceedings.
• Daly itself rested on U.S. Supreme Court authority, including:
  • Kentucky v. Stincer, 482 U.S. 730 (1987)
  • Pennsylvania v. Ritchie, 480 U.S. 39 (1987)
  • United States v. Matlock, 415 U.S. 164 (1974)
  all of which emphasize that the Confrontation Clause is designed to regulate the trial procedure by which guilt (or the central adjudicative issue) is determined, not preliminary procedural hearings.

Crucially, the Court reads § 71‑954’s reference to “equivalent” rights as parallel in scope to the Sixth Amendment. Since the Sixth Amendment rights do not apply to pretrial hearings, the equivalent statutory rights in mental health cases also do not apply to pretrial motions:

“Section 71‑954 grants confrontation rights in mental health commitment proceedings ‘equivalent’ to those in criminal cases. Accordingly, we conclude that the confrontation rights set forth in § 71‑954 are trial rights that do not extend to pretrial hearings in mental health commitment proceedings.”

On this reasoning, M.S. had no statutory confrontation right at the continuance hearing—even though the outcome of that hearing affected her ongoing deprivation of liberty.

3. Issues left open

The Court was careful to expressly state what it was not deciding:

• It did not decide whether the Board’s choice to hear only the State’s witness and to cut off cross-examination, on a matter directly affecting M.S.’s liberty, violated other procedural protections. That is, it left open whether due process or other statutory rights might constrain the Board’s pretrial practices.
• It did not decide M.S.’ separate argument that due process was violated because the Board chair, rather than a majority of Board members, effectively resolved the motion to continue. The Court declined to address that point because it was mentioned but not assigned as error—illustrating Nebraska’s strict rule that only errors both specifically assigned and argued are reviewable (see State v. Price).

Thus, while the opinion definitively limits confrontation rights to the final commitment “trial,” it does not bless the Board’s pretrial procedures as constitutionally sound. Those questions remain available for more squarely presented challenges.

4. Practical impact of the new confrontation rule

This holding has several important implications:

• Defense strategy: Respondents cannot rely on § 71‑954 to demand confrontation rights at pretrial hearings (e.g., motions for continuance, discovery motions). They must instead invoke:
  • general due process protections,
  • any specific procedural rights in the Act or local rules, and
  • ordinary evidentiary rules (if applicable).
• Board procedure: Mental health boards retain more flexibility in handling preliminary motions, but they should expect heightened scrutiny under general due process standards, especially when pretrial decisions significantly prolong involuntary confinement.
• Advocacy on appeal: Counsel must be meticulous in assigning and arguing due process issues separately from confrontation issues, or they risk forfeiting review.

C. Hearsay and Confrontation at the Commitment Hearing

1. The psychologist’s testing (Dr. Gillespie) and harmless error

The State’s primary medical witness, psychiatrist Dr. Sidney Kauzlarich, testified that:

• A team psychologist, “Dr. Gillespie,” had performed objective psychological testing on M.S.
• The testing results showed that M.S. could “present very well while still being very ill,” tended to deny even minor flaws, and exhibited such high defensiveness that a firm diagnostic conclusion from that testing alone was impossible.

M.S. objected when the State elicited the specific results of Gillespie’s testing, on two grounds:

• Confrontation: She had no opportunity to confront or cross-examine Gillespie.
• Hearsay: The testing report was out-of-court testimonial material being offered for its truth, through another witness.

The Board overruled the objections and allowed the testimony. On appeal, the Supreme Court chose not to definitively resolve whether admission of this testimony violated confrontation or hearsay rules. Instead, it invoked the harmless error doctrine:

• The Court acknowledged that, in both criminal and civil cases, including mental health commitments, errors in admitting evidence (even of constitutional dimension) are harmless if:
  • the challenged evidence is cumulative of other properly admitted evidence, and
  • there is other competent evidence supporting the judgment.
  See Worth v. Kolbeck, 273 Neb. 163, and State v. Bradley, 236 Neb. 371.
• Here, before the disputed testimony, Dr. Kauzlarich had already—without objection—testified that:
  • the team conducted psychological testing because M.S. “may have some doubts that she even has these problems,” and
  • the testing “confirms that [M.S.] is good at covering up” and that she “did what we call ‘fake good.’”

Those unchallenged statements conveyed the same essential point: M.S. could conceal her symptoms from clinicians, appearing well while ill. Because the later, objected-to details from the test results added little substantively, they were cumulative. The Court therefore held that any evidentiary or confrontation error in admitting detailed test-result testimony was harmless.

Significance: The opinion confirms that harmless-error analysis, including the “cumulative evidence” rule, applies in civil commitment cases to:

• constitutional claims (e.g., confrontation violations), and
• ordinary evidentiary errors.

This offers the State some protection against reversal on evidentiary grounds, provided it presents multiple independent strands of evidence supporting key inferences.

2. Family members’ statements and the medical-diagnosis hearsay exception

The more consequential hearsay ruling concerns statements from M.S.’s children, relayed through Dr. Kauzlarich. He testified that:

• M.S.’ children reported she had become more isolative and more paranoid, and they had grown fearful of her.
• Her daughter described the May 2024 incident (M.S. arriving with a gun, expressing concerns about safety, later kicking at doors, making FBI-related statements, and sounding “out of touch with reality”).
• Her son expressed fear of retaliation and stated that M.S. had been paranoid for some time and was concealing symptoms during treatment.

M.S. objected on hearsay grounds. She did not, however, object on confrontation grounds to this portion of the testimony—an omission that proved dispositive as to confrontation.

a. Preservation of confrontation objections

The Court reiterated an important procedural rule from State v. Britt and State v. Childs:

• Confrontation and hearsay objections, though related, are distinct grounds.
• Objecting on hearsay does not preserve a confrontation claim for appeal.
• An objection based on one specific ground, if overruled, does not preserve review on a different ground not articulated to the trial tribunal.

Because M.S. never raised a confrontation objection to the family-member statements, the Supreme Court declined to review any confrontation claim regarding that testimony.

b. Substantive hearsay ruling: § 27‑803(4)

As to hearsay, the Court applied Neb. Rev. Stat. § 27‑803(4) (Cum. Supp. 2024), the hearsay exception for statements:

“made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”

This is commonly called the medical diagnosis or treatment exception. It has several features:

• It applies regardless of whether the declarant is available to testify.
• It historically rests on the assumption that people seeking medical help have a strong motive to be truthful about their condition, which gives their statements special reliability.

The Court emphasized two important prior rulings:

• Vacanti v. Master Electronics Corp., 245 Neb. 586 (1994): The exception is not limited to patient-physician conversations. Its scope can extend to other declarants, so long as their statements are reasonably pertinent to diagnosis or treatment.
• In re Interest of B.R., 270 Neb. 685 (2005): Statements by a family member can fall within the exception if:
  • the circumstances show the declarant’s purpose was to assist in providing medical diagnosis or treatment;
  • the content of the statements was reasonably pertinent to such diagnosis or treatment; and
  • a doctor would reasonably rely on such statements in diagnosing or treating the patient.

Here, the Court applied those principles and concluded the exception applied:

• Dr. Kauzlarich testified he spoke with M.S.’ family to obtain information he could not reliably get from a psychotic or guarded patient.
• He used this information to formulate a diagnosis (bipolar I disorder, manic with psychosis) and to develop a treatment plan (including medication, inpatient and outpatient arms, and firearm-related safety conditions).
• The family’s statements about paranoia, isolation, fear, and specific events were clearly relevant to understanding the severity, course, and functional impact of her psychiatric condition.
• Because the family regularly interacted with M.S., it was reasonable for him to rely on their accounts.

Under those circumstances, the Court held that the family members’ statements to Dr. Kauzlarich were made for the purpose of enabling medical diagnosis and treatment and were reasonably relied upon in that role. They were therefore admissible under § 27‑803(4).

c. Significance and limits

This ruling has tangible effects:

• Evidence-building for the State: County attorneys and mental health boards may more comfortably rely on treating clinicians to relay family observations without always calling every family member as a separate witness—so long as:
  • the statements were clearly given to assist diagnosis or treatment, and
  • the clinician actually relied on them.
• Scope of the exception in mental health: The opinion reinforces that the medical-diagnosis exception fully applies to mental health contexts (Tilson v. Tilson; State v. Mora) and is not restricted to physical ailments.
• Confrontation concerns unresolved: Because confrontation was not preserved, the Court did not reach whether these kinds of statements are “testimonial” for Sixth Amendment purposes under Crawford v. Washington and progeny. That question—whether statements to a treating clinician in anticipation of possible commitment are “for purposes of prosecution”—remains open in Nebraska.

D. Substantive Requirements for Commitment and Forced Treatment

1. Mental illness: § 71‑907

Section 71‑925(1) requires the State to prove, by clear and convincing evidence, that a subject is “mentally ill and dangerous.” “Mentally ill” is defined in § 71‑907 as:

“having a psychiatric disorder that involves a severe or substantial impairment of a person’s thought processes, sensory input, mood balance, memory, or ability to reason which substantially interferes with such person's ability to meet the ordinary demands of living or interferes with the safety or well-being of others.”

The evidence of mental illness was relatively uncontroversial:

• Dr. Kauzlarich diagnosed M.S. with bipolar I disorder, manic episode with psychotic features, with a history of generalized anxiety disorder and major depressive disorder with psychotic features.
• His treatment plan, admitted into evidence without objection, listed “bipolar I disorder, manic with psychosis” as her diagnosis.
• M.S. herself acknowledged she had “a mental illness” and needed medication, though she questioned aspects of her past treatment and contemplated a potential malpractice action.

M.S. argued the diagnosis lacked adequate support because it was based on a “brief evaluation” and allegedly unspecified observations. The Court rejected this argument, noting:

• A licensed psychiatrist and mental health professional is competent to testify about a patient’s mental condition and diagnosis (In re Interest of Tweedy).
• Assessing the credibility of experts and weighing conflicting medical inferences is the role of the trier of fact, not the appellate court (Morris v. Dall).

Given the uncontroverted expert testimony and treatment records, the Court held that a rational trier of fact could clearly and convincingly find that M.S. met the statutory definition of “mentally ill.”

2. “Mentally ill and dangerous”: § 71‑908

The more contested issue was whether M.S. was “mentally ill and dangerous” under § 71‑908, which defines that phrase as a mentally ill person who, because of such illness:

(1) Presents “a substantial risk of serious harm to another person or persons within the near future as manifested by evidence of recent violent acts or threats of violence or by placing others in reasonable fear of such harm”; or
(2) Presents “a substantial risk of serious harm to himself or herself within the near future” as manifested by suicide attempts/threats or inability to provide for basic human needs (food, shelter, essential medical care, and safety).

The word “or” between subsections (1) and (2) is disjunctive, as confirmed in Mann v. Mann. It is sufficient if either prong is proven by clear and convincing evidence.

The district court found M.S. dangerous under both prongs. The Supreme Court chose to ground its affirmance under § 71‑908(1): substantial risk of serious harm to others “as manifested … by placing others in reasonable fear” (emphasis added).

a. Evidence of dangerousness to others

Key evidence supporting dangerousness included:

• Firearm possession and conduct at the daughter’s home:
  • M.S., a former law enforcement officer, owned firearms.
  • On a morning in May 2024, she arrived unannounced at her daughter’s home, wearing a cross-body bag, and told her daughter she had brought a gun.
  • Despite reassurance that the daughter was fine and no one else was in the home, M.S. later returned, kicked at the back door, yelled at the front door for a neighbor (“Where are my kids? Where is my daughter and daughter-in-law?”), and referenced the FBI and a person named “Kelso” being removed, saying something “big” was going to happen.
  • The daughter testified she was “very concerned [M.S.] has [a] gun while under this state,” characterized her as “out of touch with reality” and “unpredictable,” and requested admission and evaluation “for the safety of others.”
• Family fear and perception of risk:
  • Both children expressed to Dr. Kauzlarich that they had become fearful for their own safety and for others around M.S., particularly the neighbor who was the focus of M.S.’ demands and the son who was “keeping” her guns.
  • The son specifically feared retaliation and reported that M.S. had long been paranoid and had concealed symptoms in treatment.
• Psychiatrist’s risk assessment:
  • Dr. Kauzlarich opined that M.S. “could be a danger to herself and to others,” citing as risk factors:
    • the recent firearm-related incident at the daughter’s home, and
    • her history of stopping medication and missing appointments, then failing to seek help when she became “more psychotic.”
  • He noted that while M.S. appeared voluntarily compliant during hospitalization, her illness impaired her insight such that, historically, she did not reliably seek treatment when ill.

b. Role of timing and prior acts

A longstanding principle in Nebraska commitment law, reaffirmed here, is that dangerousness must be assessed as of the time of the hearing:

• In re Interest of O.S., 277 Neb. 577 (2009), holds that the focus is on present condition, but that prior acts and statements are probative of current mental state and future risk, so long as they reasonably predict future dangerousness.

M.S. argued that by the time of the Board hearing she was stable, compliant with medication (including a long-acting injectable), willing to give up firearms, and not currently threatening or harming anyone. The Court acknowledged that at-the-hearing stability is relevant but found that:

• The May 2024 incident was only about two weeks old at the time of the hearing.
• There was a documented pattern of stopping medication and failing to follow through with treatment, correlated with worsening symptoms and alarming behavior.
• The presence of firearms and unresolved paranoia, even amid apparent current cooperation, still reasonably generated fear and projected future risk if treatment lapsed again.

Given that § 71‑908(1) can be satisfied by “placing others in reasonable fear” of serious harm, the Court held that a rational fact-finder could clearly and convincingly find M.S. “mentally ill and dangerous.” Importantly, the statute does not require:

• a completed act of serious violence, or
• a specific verbal threat to kill or seriously injure.

It is enough that, because of mental illness, the subject’s behavior reasonably creates a substantial risk and places others in reasonable fear of serious harm in the near future.

3. Least restrictive alternative and forced medication: § 71‑925

Once mental illness and dangerousness are established, the State must also prove, under § 71‑925(1)(b), that:

• neither voluntary hospitalization nor other less restrictive treatment alternatives are available, or
• if available, they would not suffice to prevent the harm described in § 71‑908.

Section 71‑925(6) further requires that:

• The treatment order must represent “the appropriate available treatment alternative that imposes the least possible restraint upon the liberty of the subject.”
• The Board must consider “all treatment alternatives,” including those proposed by the subject or counsel.
• Inpatient hospitalization is a “treatment alternative of last resort.”

M.S. argued:

• Her present voluntary compliance with the treatment plan (including long-acting injectable antipsychotic) showed that compulsion was unnecessary.
• Less restrictive alternatives—such as purely voluntary outpatient treatment—were adequate, especially given her stated willingness to sell her guns.

The Court, however, deferred to the district court and Board’s acceptance of Dr. Kauzlarich’s competing assessment:

• He recommended a combined inpatient and outpatient plan, with authority for forced medication if necessary.
• He regarded long-acting injectable antipsychotic medication as crucial, due to:
  • her past noncompliance with oral medications,
  • missed appointments (partly related to insurance loss, but also related to symptom denial and lack of insight), and
  • her tendency to under-report or conceal symptoms.
• He believed that without a commitment order, there was a significant risk that M.S. would discontinue treatment once she felt better, repeating the cycle that led to the recent crisis.
• He also cited firearms as a factor supporting the need for formal commitment—because “a mental health commitment would take the gun out of her hand” and legally bar firearm ownership.

The Board’s treatment order mirrored the recommended plan:

• Continued stabilization on an inpatient unit.
• Mandatory compliance with prescribed medications, including short- and long-term injectables, with authority to impose medication “against patient’s will, if necessary, on both an inpatient and outpatient basis.”
• Transition to outpatient psychiatric services and appropriate community-based housing upon discharge.

The Supreme Court held there was clear and convincing evidence to support:

• That inpatient hospitalization (followed by outpatient care) was the least restrictive effective alternative under the circumstances.
• That the Board had “considered all treatment alternatives,” including voluntary options M.S. herself proposed.
• That no lesser alternative than forced medication would suffice to manage the risk arising from her illness and history of noncompliance.

In practice, the Court’s analysis gives considerable deference to:

• Expert psychiatric judgment about the reliability of current voluntary compliance as a predictor of future behavior, and
• Board decisions to authorize forced medication where past noncompliance and lack of insight are well documented.

IV. Precedents Cited and Their Role in the Decision

A. Confrontation and mental health proceedings

• State v. Daly, 278 Neb. 903 (2009) – Confrontation rights are “trial rights,” not applicable to evidentiary hearings on admissibility (Daubert/Schafersman hearings). This case provided the template for limiting § 71‑954 to trial-type hearings in commitment proceedings.
• In re Interest of S.B., 263 Neb. 175 (2002) – Construed the predecessor of § 71‑954 (then § 83‑1058) to apply confrontation-equivalent rights in mental health commitment hearings, specifically restricting telephonic testimony. M.S. builds on this by clarifying when those rights attach.
• State v. Smith, 286 Neb. 856 (2013) – Held that Nebraska’s confrontation clause is interpreted coextensively with the Sixth Amendment. This supports the Court’s reliance on federal confrontation doctrine.

B. Hearsay and the medical-diagnosis exception

• Vacanti v. Master Electronics Corp., 245 Neb. 586 (1994) – Recognized that the medical-diagnosis exception extends beyond direct patient-to-physician communications to include other declarants, if reasonably pertinent to diagnosis/treatment.
• In re Interest of B.R. et al., 270 Neb. 685 (2005) – Applied the exception to statements by family members of a child, articulating the now-applied test: purpose to assist treatment, pertinence to diagnosis, and reasonable reliance by the doctor.
• Tilson v. Tilson, 307 Neb. 275 (2020); State v. Mora, 298 Neb. 185 (2017) – Confirmed that the exception covers mental health diagnosis and treatment.
• State v. Swartz, 318 Neb. 553 (2025) – Recently applied the same rule under the updated numbering of § 27‑803(4) and underscored that the declarant’s state of mind can be inferred from the overall circumstances.

C. Standards of review and burden of proof

• In re Interest of S.J., 283 Neb. 507 (2012) – Established that district courts review Mental Health Board decisions de novo on the record, while appellate courts review only for sufficiency of clear and convincing evidence as a matter of law.
• In re Interest of T.W., 314 Neb. 475 (2023) – Explained that mental health commitment review borrows from criminal sufficiency standards but operates under a clear-and-convincing, not beyond-reasonable-doubt, burden.
• Benjamin S. v. Crystal S., 313 Neb. 799 (2023) – Provided the precise articulation of the “clear and convincing evidence” standard.
• State v. Falcon, 319 Neb. 911 (2025) – Reiterated the “any rational trier of fact” formulation for sufficiency review, which the Court adapted to the clear-and-convincing context.

D. Dangerousness and use of past acts

• In re Interest of O.S., 277 Neb. 577 (2009) – Clarified that while the focus in commitment is on the subject’s condition at the time of the hearing, prior acts and statements are probative of that present condition and predictive of future dangerousness, if reasonably linked.

E. Harmless error

• Worth v. Kolbeck, 273 Neb. 163 (2007) – In a civil context, held that erroneous admission of evidence is harmless if cumulative and if other competent evidence supports the judgment.
• State v. Bradley, 236 Neb. 371 (1990) – Stated that evidentiary error, even of constitutional dimension, is harmless if the evidence is cumulative and the remaining evidence supports the conviction.

V. Clarifying Key Legal Concepts and Terminology

1. Confrontation Clause vs. hearsay rules

• Confrontation Clause: A constitutional right (Sixth Amendment and Neb. Const. art. I, § 11) giving a criminal accused—and, by extension under § 71‑954, a commitment respondent—the right to face and cross-examine adverse witnesses at trial.
• Hearsay: An out-of-court statement offered to prove the truth of what it asserts. Generally inadmissible unless it falls within an exception (e.g., statements for medical diagnosis or treatment).
• Key distinction: A statement can be hearsay but not “testimonial” (and thus not raise confrontation issues), or it can be non-hearsay but still implicate confrontation (if testimonial and offered substantively). Preservation of each objection requires distinct, explicit grounds.

2. “Trial right” nature of confrontation

The Confrontation Clause regulates adversarial fact-finding at trial—the point at which liberty or liability is formally adjudicated. Pretrial hearings (motions to continue, suppression hearings, Daubert hearings) may involve important rights but are governed mainly by due process and evidentiary rules, not confrontation guarantees. In re Interest of M.S. extends that principle to mental health commitment proceedings: the statutory confrontation right attaches at the final commitment hearing, not at preliminary motion practice.

3. Clear and convincing evidence

“Clear and convincing” is an intermediate standard of proof used in civil cases where especially weighty interests are at stake (e.g., parental rights, involuntary commitment). It requires:

• Evidence that generates a firm belief or conviction in the mind of the fact-finder.
• More than a “more likely than not” showing, but less than proof beyond a reasonable doubt.

4. “Mentally ill and dangerous”

Being “mentally ill” (§ 71‑907) is not sufficient, by itself, for commitment. The individual must also be “dangerous” under § 71‑908, which focuses on:

• The degree of risk (substantial),
• The severity of potential harm (serious physical harm to self or others), and
• The temporal proximity (within the near future).

Dangerousness can be shown by:

• Recent violence or explicit threats, or
• Behavior that reasonably causes others to fear such serious harm (as in M.S.).

5. Least restrictive alternative and forced medication

• Least restrictive alternative: The commitment system must choose the treatment that adequately manages the risk while imposing the smallest necessary restriction on liberty (e.g., outpatient care over inpatient care when sufficient).
• Forced medication: Court-ordered authority to administer psychotropic drugs, even over objection, when needed to treat the illness and mitigate dangerousness, subject to statutory and constitutional safeguards.

6. Harmless error and cumulative evidence

• Harmless error: An error in the trial process that does not affect the judgment’s outcome or substantial rights of the party.
• Cumulative evidence: Evidence that essentially duplicates facts already proven by other admissible evidence. Admission of cumulative evidence, even if erroneous, often is deemed harmless.

VI. Broader Impact and Future Implications

1. Clarified procedural rights in commitment cases

By definitively classifying § 71‑954 confrontation rights as trial-only, the Court provides clear guidance to:

• Boards that they are not obliged under § 71‑954 to afford confrontation at pretrial motion hearings, though due process constraints remain.
• Defense counsel that they cannot rely on confrontation doctrine for pretrial challenges and must instead invoke other procedural protections and be precise in preserving issues for appeal.

2. Expanded use of family statements in medical evidence

The robust application of the medical-diagnosis exception to family-member statements in a mental health commitment setting will:

• Facilitate reliance on treating clinicians as conduits for family-observed behavior and history.
• Reduce the procedural complexity of calling multiple lay witnesses when their statements were clearly given to help the doctor diagnose and treat.
• Potentially increase the evidentiary weight of collateral sources in establishing dangerousness and noncompliance patterns.

3. Emphasis on risk prediction over present calm

The case underscores that present cooperation with treatment and apparent calm at a hearing do not preclude a finding of dangerousness, where:

• Recent serious incidents,
• Documented treatment noncompliance, and
• Access to lethal means (firearms)

together indicate a substantial risk of serious harm in the near future. This predictive, risk-management orientation is characteristic of civil commitment jurisprudence, but M.S. illustrates it in the context of firearm ownership and psychotic illness.

4. Forced medication and the role of insight

The decision affirms that lack of insight into one’s illness and history of stopping medication can justify both commitment and forced medication, even where the subject expresses current willingness to comply. Courts may defer to psychiatric assessments that voluntary compliance is fragile or likely to dissolve once external monitoring wanes.

5. Unresolved constitutional questions

Several constitutional issues remain for future litigation:

• Whether, and under what circumstances, statements to clinicians by family or patients during court-ordered evaluations are “testimonial” under Crawford and thus subject to confrontation limits when introduced at a hearing.
• The precise contours of procedural due process at pretrial commitment hearings, especially where a Board chair effectively rules without a majority vote or without affording cross-examination.
• Interactions between mental health commitments used, in part, to remove firearms and constitutional protections related to firearms possession—questions not addressed in M.S. but latent in the facts.

VII. Conclusion

In re Interest of M.S. is a pivotal decision in Nebraska mental health law. It:

• Establishes that the confrontation rights granted by § 71‑954 are limited to the commitment trial and do not reach pretrial hearings, aligning mental health procedure with criminal confrontation doctrine.
• Strengthens the application of the medical-diagnosis-or-treatment hearsay exception to statements by family members in mental health commitments, provided those statements genuinely aid diagnosis and treatment and are reasonably relied upon by clinicians.
• Reaffirms, under a clear-and-convincing standard, the substantive grounds for finding a person “mentally ill and dangerous,” particularly using the “placing others in reasonable fear” prong of § 71‑908(1).
• Validates the use of inpatient hospitalization and forced medication as the least restrictive alternative where a subject’s history demonstrates noncompliance, limited insight, and access to dangerous instrumentalities such as firearms.

Taken together, these rulings deepen the integration of criminal-law procedural concepts into civil commitment practice while simultaneously expanding the evidentiary tools available to the State through medical and collateral testimony. They reinforce the preventive, risk-focused nature of civil commitment, and they highlight the need for careful, well-preserved objections and assignments of error by counsel seeking to challenge the deprivation of liberty that commitment entails.