Nebraska Rules of Evidence – LessonsinLaw.com

27-101. Rule 101. Scope.

These rules govern proceedings in the courts of the State of Nebraska, except to the extent and with the exceptions stated in section 27-1101.

Source:Laws 1975, LB 279, § 1.

Annotations
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

When a state evidence rule is substantially similar to a corresponding federal rule of evidence, state courts may look to federal decisions interpreting the corresponding federal rule for guidance in construing the state rule. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

At a juvenile adjudication hearing, the admissibility of evidence is governed by the customary rules of evidence used in trials without a jury. The Nebraska Evidence Rules do not apply at a dispositional hearing. The requirements of due process control a dispositional hearing and the type of evidence which may be used by the State. In re Interest of O.L.D. and M.D.D., 1 Neb. App. 471, 499 N.W.2d 552 (1993).

27-102. Rule 102. Purpose and construction.
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

Source:Laws 1975, LB 279, § 2.

Annotations
Ruling on admissibility of evidence are discretionary with the trial judge. State v. King, 197 Neb. 729, 250 N.W.2d 655 (1977).

27-103. Rule 103. Rulings on evidence; effect of erroneous ruling; objection; offer of proof; record of offer and ruling; hearing of jury; plain error.
(1) Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and:

(a) In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if a specific ground was not apparent from the context; or

(b) In case the ruling is one excluding evidence, the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked.

(2) The judge may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. He may direct the making of an offer in question and answer form.

(3) In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

(4) Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the judge.

Source:Laws 1975, LB 279, § 3.

Annotations
1. Offer of proof

2. Timely objection

3. Substantial rights

4. Miscellaneous

1. Offer of proof

In order to predicate error upon a ruling of the court refusing to permit a witness to testify, or to answer a specific question, the record must show an offer to prove the facts sought to be elicited. State v. Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008); Sturzenegger v. Father Flanagan's Boys' Home, 276 Neb. 327, 754 N.W.2d 406 (2008).

Subsection (1)(b) of this section allows an appellate court to find error in an exclusionary ruling when the substance of the evidence was apparent from the context even without an offer of proof. State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2006).

Pursuant to subsection (1)(b) of this section, error may not be predicated upon a ruling of a trial court excluding testimony of a witness unless the substance of the evidence to be offered by the testimony was made known to the trial judge by offer or was apparent from the context within which the questions were asked. In order to predicate error upon a ruling of the court refusing to permit a witness to testify, or to answer a specific question, the record must show an offer to prove the facts sought to be elicited. Anderson by and through Anderson/Couvillon v. Nebraska Dept. of Soc. Servs., 253 Neb. 813, 572 N.W.2d 362 (1998).

In order to preserve any error before the Supreme Court, the party opposing a motion in limine which was granted must make an offer of proof outside the presence of the jury unless the evidence is apparent from the context in which the questions were asked. Thrift Mart v. State Farm Fire & Cas. Co., 251 Neb. 448, 558 N.W.2d 531 (1997).

In order to preserve error before the Supreme Court, the party opposing a motion in limine which was granted must make an offer of proof outside the presence of the jury unless the evidence is apparent from the context within which the questions were asked. McCune v. Neitzel, 235 Neb. 754, 457 N.W.2d 803 (1990).

Where, on objection, a ruling excluding evidence is made, an offer of proof is generally a prerequisite to our review on appeal unless it is apparent from the context within which the question was asked that the answer would have been material and competent. Hulse v. Schelkopf, 220 Neb. 617, 371 N.W.2d 673 (1985); State v. Schroder, 218 Neb. 860, 359 N.W.2d 799 (1984).

In an offer of proof, only the substance of excluded testimony must be disclosed. If the substance of the evidence is apparent from the context in which the question is asked, an offer of proof is not necessary. Birkel v. Hassebrook Farm Serv., 219 Neb. 286, 363 N.W.2d 148 (1985).

Error may not be predicated on district court's failure to admit evidence if no offer of proof is made. Morris v. Laaker, 213 Neb. 868, 331 N.W.2d 807 (1983).

Where no offer of proof was made error cannot be predicated on a ruling excluding evidence. Schwartz v. Selvage, 203 Neb. 158, 277 N.W.2d 681 (1979).

Where evidence is excluded, an offer of proof is generally a prerequisite to review on appeal. State v. Fonville, 197 Neb. 220, 248 N.W.2d 27 (1976).

Pursuant to subsection (1)(b) of this section, a party's failure to make an offer of proof or ensure the record reflected the substance of excluded witnesses' testimony prevents appellate review of the trial court's exclusion of the testimony. Zuco v. Tucker, 9 Neb. App. 155, 609 N.W.2d 59 (2000).

2. Timely objection

The defendant failed to preserve for appellate review a challenge to the admission of exhibits reoffered at his second habitual criminal hearing following remand when counsel's only stated ground for the objection was that he was not the counsel of record at the original hearing and was not sure the proper objections were made to the exhibits at the original hearing. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).

Unless an objection to offered evidence is sufficiently specific to enlighten the trial court and enable it to pass upon the sufficiency of such objection and to observe the alleged harmful bearing of the evidence from the standpoint of the objector, no question can be presented therefrom on appeal. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).

Under subsection (1)(a) of this section, when counsel for a party specifically states in the trial court that he has no objection to the introduction of certain documents, he cannot on appeal urge that they were improperly certified or authenticated and, for that reason, not admissible. Jacobson v. Higgins, 243 Neb. 485, 500 N.W.2d 558 (1993).

The duty rests on defendant, after denial of a motion to suppress, to object at trial to the admission of the evidence and to state the specific grounds of the objection if a specific ground is not apparent from the context in which the objection was made. State v. Farrell, 242 Neb. 877, 497 N.W.2d 17 (1993).

In a criminal trial, after a pretrial hearing and order overruling a defendant's motion to suppress evidence, the defendant must perform the additional procedural step of objecting at trial to the admission of the evidence which was the subject of the suppression motion in order to preserve the question of admissibility for appeal. State v. Rodgers, 237 Neb. 506, 466 N.W.2d 537 (1991); State v. Mahlin, 236 Neb. 818, 464 N.W.2d 312 (1991); State v. Pointer, 224 Neb. 892, 402 N.W.2d 268 (1987).

Objection was not timely when it was made after the exhibit was received in evidence. Objection to the admission of evidence is not timely unless it is made at the earliest opportunity after the ground for the objection becomes apparent. State v. Rodgers, 237 Neb. 506, 466 N.W.2d 537 (1991).

If a party does not make a timely objection to evidence under subsection (1)(a) of this statute, the party waives the right on appeal to assert prejudicial error in the reception of such evidence. State v. Todd, 226 Neb. 906, 416 N.W.2d 13 (1987).

Defendant did not preserve, for appeal, alleged error in trial court's overruling his motion to suppress physical evidence, where defendant did not object at trial to the receipt of the evidence, but stipulated to its introduction. State v. Roggenkamp, 224 Neb. 914, 402 N.W.2d 682 (1987).

3. Substantial rights

In a civil case, to constitute reversible error, admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about such evidence admitted or excluded. Equitable Life v. Starr, 241 Neb. 609, 489 N.W.2d 857 (1992); Huffman v. Huffman, 236 Neb. 101, 459 N.W.2d 215 (1990); Alliance Nat. Bank v. State Surety Co., 223 Neb. 403, 390 N.W.2d 487 (1986).

Under subsection (1) of this section, alleged error in the exclusion of offered testimony is of no avail if the same testimony, or testimony to the same effect, had been, or was afterward, allowed to be given by the same witness. Rose v. City of Lincoln, 234 Neb. 67, 449 N.W.2d 522 (1989).

An error is prejudicial unless it can be said that the error was harmless beyond a reasonable doubt. State v. Lenz, 227 Neb. 692, 419 N.W.2d 670 (1988).

Error may be predicated on a ruling excluding evidence if a substantial right of the party is affected and the substance of the evidence is apparent from the context. Lincoln East Bancshares v. Rierden, 225 Neb. 440, 406 N.W.2d 337 (1987).

Exclusion of the statement of the insurance adjuster affected the plaintiff's substantial right to present reliable evidence on causation. Bump v. Firemen's Ins. Co., 221 Neb. 678, 380 N.W.2d 268 (1986).

With regard to the rule that error may not be predicated upon a ruling excluding evidence unless a substantial right of the party is affected and unless "the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked", it would be an unusual circumstance where an offer of proof would not be required in order to enable the trial court, and the appellate courts, to know what the evidence is which the questioner seeks to elicit. State v. Eldred, 5 Neb. App. 424, 559 N.W.2d 519 (1997).

Under subsection (1)(b) of this section, a substantial right of plaintiff was not affected by the trial court's refusal to admit plaintiff's alleged rebuttal evidence. Stern v. On Time Freight Sys., 1 Neb. App. 302, 493 N.W.2d 348 (1992).

4. Miscellaneous

While on rulings admitting evidence the focus is on the ground for exclusion urged at trial, on rulings excluding evidence, the focus is on whether the substance of the evidence was made known at trial. As a result, the rule that one may not on appeal assert a ground for excluding improperly admitted evidence that differs from that urged in the objection made to the trial court, State v. Bray, 243 Neb. 886, 503 N.W.2d 221 (1993), does not come into play when dealing with evidence which was improperly excluded. Cockrell v. Garton, 244 Neb. 359, 507 N.W.2d 38 (1993).

A true objection does not wander among the Nebraska Evidence Rules in the hope of eventually ending its odyssey at the doorstep of a particular rule of evidence; in seeking to exclude evidence, counsel must adhere to a basic and straightforward approach: tell the court the reason why the evidence is inadmissible. State v. Coleman, 239 Neb. 800, 478 N.W.2d 349 (1992).

To preserve a claimed error in the admission of evidence, a party must make a timely objection which specifies the ground of the objection to the offered evidence. State v. Cox, 231 Neb. 495, 437 N.W.2d 134 (1989).

A party is barred from asserting a different ground for his objection to the admission of evidence on appeal than was offered before the trier of fact. Rocek v. Department of Public Institutions, 225 Neb. 247, 404 N.W.2d 414 (1987).

An exhibit offered at trial but not received by the trial court is required to be included in the record in order to allow an appellate court— an alleged error in refusing to receive the exhibit is properly raised in an appeal— effectively review the court's decision. Dinges v. Dinges, 16 Neb. App. 275, 743 N.W.2d 662 (2008).

27-104. Rule 104. Preliminary questions; questions of admissibility, generally; relevancy conditioned on fact; hearing of jury; testimony by accused; weight and credibility.
(1) Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the judge, subject to the provisions of subsection (2) of this section.

(2) When the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

(3) Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness, if he so requests.

(4) The accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case.

(5) This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

Source:Laws 1975, LB 279, § 4.

Annotations
1. Qualification of witness as expert

2. Miscellaneous

1. Qualification of witness as expert

Per subsection (1) of this section, a trial court's factual finding concerning a determination whether a witness qualifies as an expert under section 27-702 will be upheld on appeal unless clearly erroneous. State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996).

A trial court's ruling regarding a witness' qualification as an expert will be upheld unless such ruling is clearly erroneous. State v. Stahl, 240 Neb. 501, 482 N.W.2d 829 (1992); In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992); State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).

Whether a witness is qualified to testify as an expert under section 27-702 is a preliminary question of admissibility for a trial court under subsection (1) of this section. State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).

Subsection (1) of this section serves as a guidepost under parental termination cases regarding whether a witness is qualified to testify as an expert. In re Interest of Phoebe S. and Rebekah S., 11 Neb. App. 919, 664 N.W.2d 470 (2003).

Under subsection (1) of this section, the trial court's admission of testimony by banker as expert witness regarding security agreement was not an abuse of discretion. Skiles v. Security State Bank, 1 Neb. App. 360, 494 N.W.2d 355 (1992).

2. Miscellaneous

Unlike its counterpart in the Federal Rules of Evidence, subsection (1) of this section requires a court to first determine whether evidence is admissible under the hearsay rules before considering whether it is properly authenticated. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

A trial court has broad discretion in determining how to perform its gatekeeper function, and nothing prohibits it from hearing a Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), motion during trial. State v. Aguilar, 268 Neb. 411, 683 N.W.2d 349 (2004).

A hearing on preliminary matters concerning admissibility of evidence shall be conducted when the interests of justice require, or when a defendant is a witness, if the defendant so requests. State v. Olsan, 231 Neb. 214, 436 N.W.2d 128 (1989).

At a hearing to suppress evidence, the court, as the trier of fact, is the sole judge of the credibility of witnesses and the weight to be given to their testimony and other evidence. The Supreme Court will uphold the trial court's finding of fact in a suppression hearing unless those findings are clearly wrong. State v. Vann, 230 Neb. 601, 432 N.W.2d 810 (1988).

Whether the State has established a prima facie case of conspiracy, thereby constituting anything within execution or furtherance of the common purpose as the act of every coconspirator, is a preliminary question for the trial court. State v. Copple, 224 Neb. 672, 401 N.W.2d 141 (1987).

Pursuant to subsection (3) of this section, the voluntariness of a statement is first determined by the trial court as a matter of law out of the presence of the jury. If the court finds the statement to be voluntary and admissible, the question of voluntariness is submitted to the jury which, by appropriate evidence, must be satisfied that the statement is voluntary. State v. Bodtke, 219 Neb. 504, 363 N.W.2d 917 (1985).

27-105. Rule 105. Limited admissibility.
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the judge, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

Source:Laws 1975, LB 279, § 5.

Annotations
While the giving of a limiting instruction is mandatory when requested, it is within the trial court's discretion whether to give a limiting instruction contemporaneously with the testimony or in the general instructions to the jury. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).

27-106. Rule 106. Remainder of or related writings or recorded statements; action of judge.
(1) When part of an act, declaration, conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other. When a letter is read, all other letters on the same subject between the same parties may be given. When a detached act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood, or to explain the same, may also be given in evidence.

(2) The judge may in his discretion either require the party thus introducing part of a total communication to introduce at that time such other parts as ought in fairness to be considered contemporaneously with it, or may permit another party to do so at that time.

Source:Laws 1975, LB 279, § 6.

Annotations
When prior testimony of a witness is introduced out of context and leaves a false impression, additional evidence, even if otherwise inadmissible, may be introduced to qualify and explain the previous testimony. Nickell v. Russell, 260 Neb. 1, 614 N.W.2d 349 (2000).

Because this section is concerned with the danger of admitting a statement out of context, additional evidence is admissible only if it qualifies or explains the previous testimony. Under this section, when defense counsel leaves a false impression, the trial court may allow the use of otherwise inadmissible evidence to clarify or complete an issue opened up by defense counsel. Under this section, the trial court must determine whether the additional evidence which the proponent seeks to admit is relevant to the issues in the case and the trial court need admit only that part of the evidence which qualifies or explains the evidence offered by the opponent. In applying this section, once relevance of the additional evidence has been established, the trial court must address the second half of the test for admissibility, and should do so by asking: (1) Does it explain the admitted evidence? (2) Does it place the admitted evidence in context? (3) Will admitting it avoid misleading the trier of fact? (4) Will admitting it ensure a fair and impartial understanding of all the evidence? State v. Schrein, 244 Neb. 136, 504 N.W.2d 827 (1993).

Under this section the admission of evidence is not a matter of right, but rests with the sound discretion of the court. State v. Coffman, 227 Neb. 149, 416 N.W.2d 243 (1987).

Generally, the rule of completeness is concerned with the danger of admitting a statement out of context. When this danger is not present, it is not an abuse of discretion to fail to require the production of the remainder or, if it cannot be produced, to fail to exclude the evidence. Chirnside v. Lincoln Tel. & Tel. Co., 224 Neb. 784, 401 N.W.2d 489 (1987).

The general rule regarding admissibility of tape recordings is that they are admissible as evidence of such conversations and in corroboration of oral testimony, provided proper foundation is laid. The rule of completeness is concerned with danger of admitting a statement out of context. Where this danger is not present it is not an abuse of discretion to fail to require production of the entire statement. State v. Manchester, 213 Neb. 670, 331 N.W.2d 776 (1983).

27-201. Rule 201. Judicial notice of adjudicative facts; kinds of facts; when discretionary; when mandatory; opportunity to be heard; time of taking notice; instructing jury.
(1) This rule governs only judicial notice of adjudicative facts.

(2) A judicially noticed fact must be one not subject to reasonable dispute in that it is either (a) generally known within the territorial jurisdiction of the trial court or (b) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(3) A judge or court may take judicial notice, whether requested or not.

(4) A judge or court shall take judicial notice if requested by a party and supplied with the necessary information.

(5) A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

(6) Judicial notice may be taken at any stage of the proceeding.

(7) In a civil action or proceeding, the judge shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the judge shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

Source:Laws 1975, LB 279, § 7.

Annotations
1. Adjudicative fact

2. Judicial notice

3. Miscellaneous

1. Adjudicative fact

Adjudicative facts within the meaning of this section are simply the facts as developed in a particular case, as distinguished from legislative facts, which are established truths, facts, or pronouncements that do not change from case to case but apply universally. Hagelstein v. Swift-Eckrich, 257 Neb. 312, 597 N.W.2d 394 (1999).

A fact is adjudicative if the fact affects the determination of a controverted issue in litigation. State v. Vejvoda, 231 Neb. 668, 438 N.W.2d 461 (1989).

To be judicially noticed, a fact must be uniform and fixed with no doubt as to the fact itself or that it is a matter of common knowledge. Indoor Recreation Enterprises, Inc. v. Douglas, 194 Neb. 715, 235 N.W.2d 398 (1975).

2. Judicial notice

A court may judicially notice adjudicative facts, which are not subject to reasonable dispute, at any stage of the proceeding. Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008).

An appellate court may take judicial notice of a document, including briefs filed in an appeal, in a separate but related action concerning the same subject matter in the same court. Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008).

In interwoven and interdependent cases, an appellate court may examine its own records and take judicial notice of the proceedings and judgment in a former action involving one of the parties. Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008).

The formal introduction into evidence of a court's own prior proceedings should be done by individually noticing those elements considered relevant and competent for the issues presented. Strunk v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 821 (2006).

A juvenile court has a right to examine its own records and take judicial notice of its own proceedings and judgment in an interwoven and dependent controversy where the same matters have already been considered and determined. In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003).

When cases are interwoven and interdependent and the controversy involved has already been considered and determined by the court in a former proceeding involving one of the parties now before it, the court has the right to examine its own records and take judicial notice of its own proceedings and judgments in the former action. Appellate courts in this state may take judicial notice of a document, including briefs filed in an appeal, in a separate but related action concerning the same subject matter in the same court. Jessen v. Jessen, 259 Neb. 644, 611 N.W.2d 834 (2000).

A trial court cannot take judicial notice of disputed allegations. In re Interest of N.M. and J.M., 240 Neb. 690, 484 N.W.2d 77 (1992).

A trial court may use appropriate judicial notice in resolving a motion for summary judgment. Gottsch v. Bank of Stapleton, 235 Neb. 816, 458 N.W.2d 443 (1990).

The existence of court records and certain judicial action reflected in a court's records are an appropriate subject for judicial notice. Gottsch v. Bank of Stapleton, 235 Neb. 816, 458 N.W.2d 443 (1990).

An entire trial record cannot be said to fall within the definition of a judicially noted fact as set out in subsection (2) of this section. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).

When a fact is neither generally known within the trial court's territorial jurisdiction nor capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, judicial notice of an adjudicative fact is improper. State v. Vejvoda, 231 Neb. 668, 438 N.W.2d 461 (1989).

In a suit on a promissory note, the trial court may take judicial notice of a security agreement signed by the parties contemporaneously with the note when the agreement had been attached as an exhibit to a petition in a separate subsequent action between the same parties and in the same court. State Security Savings Co. v. Pelster, 207 Neb. 158, 296 N.W.2d 702 (1980).

Defendant's claim that a city prosecutor is without authority to prosecute using wiretap evidence was rejected and court took judicial notice of the status and official positions of public officers in the court's jurisdiction. State v. Kolosseus, 198 Neb. 404, 253 N.W.2d 157 (1977).

When offering evidence from prior hearings in a proceeding to terminate parental rights, papers requested to be noticed must be marked, identified and made a part of the record. Testimony must be transcribed, properly certified, marked, and made a part of the record. In re Interest of Tabitha J., 5 Neb. App. 609, 561 N.W.2d 252 (1997).

3. Miscellaneous

Existence of court records and certain judicial action reflected in a court's record are, in accordance with this section, facts which are capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned. Hagelstein v. Swift-Eckrich, 257 Neb. 312, 597 N.W.2d 394 (1999); State v. Dandridge, 255 Neb. 364, 585 N.W.2d 433 (1998).

The existence of court records and certain judicial action reflected in a court's record are, in accordance with subsection (2)(b) of this section, facts which are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. A court may, therefore, judicially notice existence of its records and the records of another court, but judicial notice of facts reflected in a court's records is subject to the doctrine of collateral estoppel or of res judicata. Dairyland Power Co-op v. State Bd. of Equal. and Assessment, 238 Neb. 696, 472 N.W.2d 363 (1991).

Judicial notice of facts reflected in a court's records is subject to the doctrine of collateral estoppel or of res judicata. Gottsch v. Bank of Stapleton, 235 Neb. 816, 458 N.W.2d 443 (1990).

Judicial notice of an adjudicative fact is a species of evidence, which, if relevant as an ultimate fact or a fact from which an ultimate fact may be inferred, is received without adherence to the Nebraska Evidence Rules otherwise applicable to admissibility of evidence and establishes a fact without formal evidentiary proof. State v. Vejvoda, 231 Neb. 668, 438 N.W.2d 461 (1989).

When neither of the alternative tests prescribed in subsection (2) of this section is satisfied, judicial notice of an adjudicative fact is improper. Everson v. O'Kane, 11 Neb. App. 74, 643 N.W.2d 396 (2002).

27-301. Rule 301. Presumptions in general.
In all cases not otherwise provided for by statute or by these rules a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.

Source:Laws 1975, LB 279, § 8.

Annotations
In all cases not otherwise provided for by statute or by such rules, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence. This rule applies to the rebuttable presumption that an opinion regarding loss of earning capacity expressed by a vocational rehabilitation counselor appointed or selected pursuant to section 48-162.01(3) is correct. Variano v. Dial Corp., 256 Neb. 318, 589 N.W.2d 845 (1999).

The regulatory presumption contained in Neb. Admin. Code tit. 469, ch. 2, section 2-009.07B4 (1985), that the gratuitous transfer of an applicant's home within two years before moving into a different facility is presumed to be the transfer of a resource to qualify for public assistance, does not come within the ambit of this section of the Nebraska Evidence Rules. Meier v. State, 227 Neb. 376, 417 N.W.2d 771 (1988).

The "presumption of undue influence" is not a presumption within the ambit and meaning of section 27-301. Anderson v. Claussen, 200 Neb. 74, 262 N.W.2d 438 (1978).

A presumption of undue influence in executing deeds is not a presumption contemplated by this section and the burden of proof on the issue of undue influence remains on the contestant. Golgert v. Smidt, 197 Neb. 667, 250 N.W.2d 628 (1977).

In contested will case, the "presumption of undue influence" is not a presumption within the ambit and meaning of this section. McGowan v. McGowan, 197 Neb. 596, 250 N.W.2d 234 (1977).

27-302. Rule 302. Applicability of federal law in civil cases.
In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which federal law supplies the rule of decision is determined in accordance with the federal law.

Source:Laws 1975, LB 279, § 9.

27-303. Rule 303. Presumptions in criminal cases; scope; submission to jury; instruction to jury.
(1) Except as otherwise provided by statute, in criminal cases, presumptions against an accused, recognized at common law or created by statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt, are governed by this rule.

(2) The judge is not authorized to direct the jury to find a presumed fact against the accused. When the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge may submit the question of guilt or of the existence of the presumed fact to the jury, if, but only if, a reasonable juror on the evidence as a whole, including the evidence of the basic facts, could find guilt or the presumed fact beyond a reasonable doubt. When the presumed fact has a lesser effect, its existence may be submitted to the jury if the basic facts are supported by substantial evidence, or are otherwise established, unless the evidence as a whole negatives the existence of the presumed fact.

(3) Whenever the existence of a presumed fact against the accused is submitted to the jury, the judge shall give an instruction that the law declares that the jury may regard the basic facts as sufficient evidence of the presumed fact but does not require it to do so. In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge shall instruct the jury that its existence must, on all the evidence, be proved beyond a reasonable doubt.

Source:Laws 1975, LB 279, § 10.

Annotations
When a trial court instructs a jury on an inference regarding a specific fact or set of facts, the instruction must specifically include a statement explaining to the jury that it may regard the basic facts as sufficient evidence of the inferred fact, but that it is not required to do so; the instruction must also explain that the existence of the inferred facts must, on all the evidence, be proved beyond a reasonable doubt. State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011).

References to "presumptions" in this section necessarily include "inferences." Instructions as to presumptions in criminal cases must conform to the requirements of this section. State v. Parks, 245 Neb. 205, 511 N.W.2d 774 (1994).

Under subsection (3) of this section, whenever the jury in a criminal trial is instructed as to the presumption of possession found in section 28-1212, the jury must also be instructed that it is not required to accept the presumption. State v. Stalder, 231 Neb. 896, 438 N.W.2d 498 (1989).

27-401. Rule 401. Relevant evidence, defined.
Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Source:Laws 1975, LB 279, § 11.

Annotations
1. Probative value

2. Relevancy determined

3. Admissibility

4. Miscellaneous

1. Probative value

An airline ticket stub found in the defendant's pocket, which showed that the defendant had a seat on a flight from Los Angeles, California, to Las Vegas, Nevada, and from which it could be inferred that he lied to a state trooper about driving straight back to Michigan from Washington, was probative of the defendant's consciousness of guilt and, thus, relevant in the prosecution for possession of a controlled substance with intent to deliver. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Unlike general denials of guilt, a defendant's exculpatory statements of fact that are proved to be false at trial are probative of the defendant's consciousness of guilt. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Because the exercise of judicial discretion is implicit in determinations of relevancy and admissibility under this section, the trial court's decision will not be reversed absent an abuse of discretion. For evidence to be relevant under this section, all that must be established is a rational, probative connection, however slight, between the offered evidence and a fact of consequence. Snyder v. Contemporary Obstetrics & Gyn., P.C., 258 Neb. 643, 605 N.W.2d 782 (2000).

If an expert's testimony lacks probative value, the testimony is irrelevant and is inadmissible. State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).

Evidence is probative if it tends in any degree to alter the probability of a material fact. State v. Rowland, 234 Neb. 846, 452 N.W.2d 758 (1990).

This section requires only that the degree of probativeness be something more than nothing. State v. Hankins, 232 Neb. 608, 441 N.W.2d 854 (1989).

Evidence is probative if it tends in any degree to alter the probability of a material fact. State v. Oliva, 228 Neb. 185, 422 N.W.2d 53 (1988).

While prosecutorial need alone does not mean probative value outweighs prejudice, the more essential the evidence, the greater its probative value, and the less likely that a trial court should order the evidence excluded. State v. Bostwick, 222 Neb. 631, 385 N.W.2d 906 (1986).

Relevance, as used in the code, embraces concepts the court formerly referred to as competent or material. Jones v. Tranisi, 212 Neb. 843, 326 N.W.2d 190 (1982).

Relevant evidence is evidence having a tendency to make the existence of any fact of consequence in the action more probable or less probable than it would be without the evidence. Herman v. Midland Ag. Service, Inc., 200 Neb. 356, 264 N.W.2d 161 (1978).

2. Relevancy determined

The term "pertinent" as used within the context of section 27-404(1)(b) is synonymous with the term "relevant" as used in this section. State v. Floyd, 277 Neb. 502, 763 N.W.2d 91 (2009).

Evidence is "relevant" if it tends in any degree to alter the probability of a material fact. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Evidence of a defendant's consciousness of guilt is relevant as a circumstance supporting an inference that the defendant is guilty of the crime charged. When the evidence is sufficient to justify an inference that the defendant acted with consciousness of guilt, the fact finder can consider such evidence even if the conduct could be explained in another way. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Relevancy of evidence requires only that the degree of probativeness be something more than nothing. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

The exercise of judicial discretion is implicit in determining the relevance of evidence, and a trial court's decision regarding relevance will not be reversed absent an abuse of discretion. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

In the absence of competent evidence establishing that merely possessing material dealing with adult heterosexual fellatio somehow leads to engaging in pedophilic homosexual fellatio, evidence of possession of such material is not relevant. Sexually explicit materials shown to a victim are relevant, if there is testimony that some of the materials in the exhibit were used in an attempt to arouse. In the absence of competent evidence establishing that possession of an advertisement for male homosexual videotapes somehow leads to engaging in pedophilia, the materials are not relevant to whether defendant committed the crime of first degree sexual assault. State v. Lee, 247 Neb. 83, 525 N.W.2d 179 (1994).

To be relevant, evidence must be rationally related to an issue by a likelihood, not a mere possibility, of proving or disproving an issue to be decided. Brown v. Farmers Mut. Ins. Co., 237 Neb. 855, 468 N.W.2d 105 (1991).

Evidence of prior acts was relevant to the charge of trespassing, because it tended to show the defendant had notice he was not welcome to return. State v. Babajamia, 223 Neb. 804, 394 N.W.2d 289 (1986).

Witness' statement held relevant to show defendant's conduct, demeanor, statements, attitude, and relation toward the crime. State v. Martin, 198 Neb. 811, 255 N.W.2d 844 (1977).

The exercise of judicial discretion is implicit in determinations of relevancy under this section and prejudice under section 27-403, and a trial court's decision under these evidentiary rules will not be reversed absent an abuse of discretion. State v. Schmidt, 16 Neb. App. 741, 750 N.W.2d 390 (2008); State v. Kuhl, 16 Neb. App. 127, 741 N.W.2d 701 (2007).

3. Admissibility

A photograph is admissible in evidence if the photograph's subject matter or contents are depicted truly and accurately at a time pertinent to the inquiry and the photograph has probative value as relevant evidence. State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992).

In order to admit a coconspirator's act as evidence against a defendant-coconspirator being tried for a crime other than the conspiracy itself, the trial court must first determine whether the State has proved a prima facie case that (1) a conspiracy existed, (2) the defendant and the witness were members of the conspiracy, and (3) the witness' act was done during and in furtherance of the conspiracy. State v. Copple, 224 Neb. 672, 401 N.W.2d 141 (1987).

When the testimony sought to be impeached was cumulative, it was not error for the court to refuse to admit testimony on the reputation for truthfulness of one of four witnesses who testified to the same facts. Ocander v. B-K Corporation, 206 Neb. 287, 292 N.W.2d 567 (1980).

Admission of irrelevant evidence is harmless error unless, when with other evidence properly adduced, it affects substantial rights of the adverse party. State v. Rathburn, 195 Neb. 485, 239 N.W.2d 253 (1976).

4. Miscellaneous

In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was the proximate cause of the plaintiff's alleged injuries. Karel v. Nebraska Health Sys., 274 Neb. 175, 738 N.W.2d 831 (2007).

Exercise of judicial discretion is implicit in determinations of relevancy and admissibility. Gerhold Concrete Co. v. St. Paul Fire & Marine Ins., 269 Neb. 692, 695 N.W.2d 665 (2005).

Because the exercise of judicial discretion is implicit in determinations of relevancy and admissibility under this section and section 27-403, the trial court's decision will not be reversed absent an abuse of discretion. Snyder v. Case and EMCASCO Ins. Co., 259 Neb. 621, 611 N.W.2d 409 (2000); Seeber v. Howlette, 255 Neb. 561, 586 N.W.2d 445 (1998); State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997).

It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts, and the trial court's decision will not be reversed absent an abuse of that discretion. State v. Carter, 246 Neb. 953, 524 N.W.2d 763 (1994).

27-402. Rule 402. Relevant evidence admissible; exceptions; irrelevant evidence inadmissible.
All relevant evidence is admissible except as otherwise provided by the Constitution of the United States or the State of Nebraska, by Act of Congress or of the Legislature of the State of Nebraska, by these rules, or by other rules adopted by the Supreme Court of Nebraska which are not in conflict with laws governing such matters. Evidence which is not relevant is not admissible.

Source:Laws 1975, LB 279, § 12.

Annotations
Evidence of a prior accident was not admissible when the plaintiff failed to show how the prior accident was substantially similar to the accident at issue. Holden v. Wal-Mart Stores, Inc., 259 Neb. 78, 608 N.W.2d 187 (2000).

The injection of evidence into a trial that one party's losses may be covered by insurance may substantially outweigh any probative value of such evidence when the injection occurs merely to indicate the employment of a witness and when the injection of insurance could have been prevented by merely substituting for the injection of insurance a stipulation that the witness is an agent of the insured. Stumpf ex rel. Selzer Nintendo of America, Inc., 257 Neb. 920, 601 N.W.2d 735 (1999).

Pursuant to subsection (2) of this section, evidence of other bad acts which is relevant for any purpose other than to show the actor's propensity to commit the act is admissible under subsection (2) of section 27-404. Subsection (2) of section 27-404 divides evidence of other bad acts into two categories according to the basis of relevance of the acts: (1) Relevant only to show propensity, which is not admissible, and (2) otherwise relevant (nonpropensity), which is admissible. If evidence of other bad acts is admitted into evidence, the court, if requested, must give a limiting instruction. On appeal, an analysis of subsection (2) of section 27-404 considers whether the (1) evidence was relevant for some purpose other than to prove the character of a person to show that he or she acted in conformity therewith, (2) probative value of the evidence is substantially outweighed by its potential for unfair prejudice, and (3) trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted. State v. McManus, 257 Neb. 1, 594 N.W.2d 623 (1999).

Judicial discretion is a factor involved in admissibility of evidence under this section and section 27-403. State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998).

In an eminent domain action, an expert's use of the wrong measure of damages in formulating just compensation would not assist the jury either in understanding the evidence or in determining a fact in issue and, therefore, is not relevant. Lantis v. City of Omaha, 237 Neb. 670, 467 N.W.2d 649 (1991).

Rule 402 of the Nebraska Evidence Rules permits the admission of relevant evidence only. State v. Robertson, 219 Neb. 782, 366 N.W.2d 429 (1985).

Where a defendant has detailed a plan or scheme to commit a crime and ultimately carries out that plan or scheme, evidence concerning the same is admissible to show the defendant's plan and intent to commit the alleged crime. State v. Plymate, 216 Neb. 722, 345 N.W.2d 327 (1984).

An expert witness retained by one party may be compelled or will be allowed to testify to a matter of opinion upon request of the opposing party. IAFF Local 831 v. City of No. Platte, 215 Neb. 89, 337 N.W.2d 716 (1983).

27-403. Rule 403. Exclusion of relevant evidence; reasons.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Source:Laws 1975, LB 279, § 13.

Annotations
1. Unfair prejudice

2. Cumulative testimony

3. Miscellaneous

1. Unfair prejudice

Most, if not all, evidence offered by a party is calculated to be prejudicial to the opposing party; only evidence tending to suggest a decision on an improper basis is unfairly prejudicial. State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).

Under this section, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).

The fact that evidence is prejudicial is not enough to require exclusion under this section, because most, if not all, of the evidence a party offers is calculated to be prejudicial to the opposing party; it is only the evidence which has a tendency to suggest a decision on an improper basis that is unfairly prejudicial under this section. State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).

Under this section, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, but only evidence tending to suggest a decision on an improper basis is unfairly prejudicial. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).

The fact that evidence is prejudicial is not enough to require exclusion under this section, because most, if not all, of the evidence a party offers is calculated to be prejudicial to the opposing party; it is only evidence which has a tendency to suggest a decision on an improper basis that is unfairly prejudicial under this section. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).

It is only the evidence that has a tendency to suggest a decision on an improper basis that is unfairly prejudicial under this section. State v. Long, 264 Neb. 85, 645 N.W.2d 553 (2002).

In the context of this section, "unfair prejudice" means an undue tendency to suggest a decision based on an improper basis. State v. Canbaz, 259 Neb. 583, 611 N.W.2d 395 (2000); Seeber v. Howlette, 255 Neb. 561, 568 N.W.2d 445 (1998).

It is only the evidence which has a tendency to suggest a decision on an improper basis that is unfairly prejudicial under this section. Although evidence may be relevant, this section provides that it may be excluded if the evidence is more prejudicial than probative. Evidence admissible under section 27-404(2) may be excluded under this section if its probative value is substantially outweighed by other considerations. State v. Carter, 246 Neb. 953, 524 N.W.2d 763 (1994).

While most, if not all, evidence offered by a party is calculated to be prejudicial to the opposing party, only evidence tending to suggest a decision on an improper basis is "unfairly prejudicial" and a concern under this section. State v. Perrigo, 244 Neb. 990, 510 N.W.2d 304 (1994); State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992); State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).

Although it appears that the results of the DNA profile test are generally accepted in the relevant scientific communities, the probative value of population genetics probability must also be considered, and the trial judge must determine if the potentially prejudicial effect upon the jury exceeds the probative value of the evidence. State v. Houser, 241 Neb. 525, 490 N.W.2d 168 (1992).

In the context of this section, "unfair prejudice" means an undue tendency to suggest a decision on an improper basis. Brown v. Farmers Mut. Ins. Co., 237 Neb. 855, 468 N.W.2d 105 (1991).

Most, if not all, items which one party to an action offers in evidence are calculated to be prejudicial to the opposing party; therefore, it is only unfair prejudice with which this section is concerned. In the context of this section, such prejudice means a tendency to suggest a decision on an improper basis. State v. Yager, 236 Neb. 481, 461 N.W.2d 741 (1990).

The gruesome nature of photographs alone will not keep them from the trier of fact under this statute, so long as the probative value of the photographs is not outweighed by the prejudicial effect. State v. Hankins, 232 Neb. 608, 441 N.W.2d 854 (1989).

Section 27-404 is subject to the overriding protections of this section. Trial court in first degree murder case did not err in receiving testimony about a prior robbery in which the defendant was involved because it established a motive and also because its probative value outweighed the danger of unfair prejudice. State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).

Any relevance to witness' testimony concerning status of her husband's lawsuit and compromise settlement with plaintiff in current suit was outweighed by the danger of unfair prejudice, confusion, or misleading the jury. London v. Stewart, 221 Neb. 265, 376 N.W.2d 553 (1985).

In the context of this section, unfair prejudice means a tendency to suggest a decision on an improper basis. Lincoln Grain v. Coopers & Lybrand, 216 Neb. 433, 345 N.W.2d 300 (1984).

The admission of photographs of a gruesome nature rests largely within the sound discretion of the trial court, which must determine their relevancy and weigh their probative value against their possible prejudicial effect. Photographs of a homicide victim may be received upon proper foundation for purposes of identification, to show the condition of the body, the nature and extent of the wounds or injuries, and to establish malice or intent. State v. Rowe, 210 Neb. 419, 315 N.W.2d 250 (1982).

Where injured victim of defendant's assault with a gun was defendant's wife, she was competent to testify where the jury had prior knowledge of her condition. State v. Martin, 198 Neb. 811, 255 N.W.2d 844 (1977).

On question of witness' credibility, refusal of trial court to permit evidence as to whether or not he had beaten his niece was not abuse of discretion. State v. Fonville, 197 Neb. 220, 248 N.W.2d 27 (1976).

Generally, the State may choose its evidence: The prosecutor's choice will generally survive an analysis pursuant to this section when a defendant seeks to force the substitution of an admission for evidence creating a coherent narrative of his thoughts and actions in perpetrating the offense for which he is being tried. State v. McDaniel, 17 Neb. App. 725, 771 N.W.2d 173 (2009).

In an incest case, the court did not abuse its discretion in allowing evidence of sexual activity occurring between the defendant and his daughter before they moved to Nebraska and evidence that the defendant could not be excluded as the father of his daughter's child. State v. Aguilar-Moreno, 17 Neb. App. 623, 769 N.W.2d 784 (2009).

Even if statements made by the declarant while sleeping were relevant, their prejudicial nature outweighed their probative value. In re Interest of Jamie P., 12 Neb. App. 261, 670 N.W.2d 814 (2003).

Only evidence which has a tendency to suggest a decision on an improper basis is unfairly prejudicial under this section. State v. Dreimanis, 8 Neb. App. 362, 593 N.W.2d 750 (1999).

2. Cumulative testimony

A trial court's evaluation of the admissibility of expert opinion testimony is essentially a four-step process. The court must first determine whether the witness is qualified to testify as an expert. It must examine whether the witness is qualified as an expert by his or her knowledge, skill, experience, training, and education. If it is necessary for the court to conduct an analysis under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), then the court must determine whether the reasoning or methodology underlying the expert testimony is scientifically valid and reliable. To aid the court in its evaluation, the judge may consider several factors, including, but not limited to, whether the reasoning or methodology has been tested and has general acceptance within the relevant scientific community. Once the reasoning and methodology has been found to be reliable, the court must determine whether the methodology can properly be applied to the facts in issue. In making this determination, the court may examine the evidence to determine whether the methodology was properly applied and whether the protocols were followed to ensure that the tests were performed properly. Finally, the court determines whether the expert evidence and the opinions related thereto are more probative than prejudicial, as required under this section. State v. Tolliver, 268 Neb. 920, 689 N.W.2d 567 (2004).

3. Miscellaneous

Exercise of judicial discretion is implicit in determinations of relevancy and admissibility. Gerhold Concrete Co. v. St. Paul Fire & Marine Ins., 269 Neb. 692, 695 N.W.2d 665 (2005).

Because the exercise of judicial discretion is implicit in determinations of relevancy and admissibility under section 27-401 and this section, the trial court's decision will not be reversed absent an abuse of discretion. Snyder v. Case and EMCASCO Ins. Co., 259 Neb. 621, 611 N.W.2d 409 (2000).

It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under this section and subsection (2) of section 27-404. State v. McManus, 257 Neb. 1, 594 N.W.2d 623 (1999).

Because the exercise of judicial discretion is implicit in determinations of relevancy and admissibility under section 27-401 and this section, the trial court's decision will not be reversed absent an abuse of discretion. Seeber v. Howlette, 255 Neb. 561, 586 N.W.2d 445 (1998).

For purposes of applying this section, probative value is a relative concept which involves a measurement of the degree to which the evidence persuades the trier of fact that the particular fact exists and the distance of the particular fact from the issues of the case. Seeber v. Howlette, 255 Neb. 561, 586 N.W.2d 445 (1998).

Judicial discretion is a factor involved in admissibility of evidence under this section and section 27-402. State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998).

For the purpose of this section, probative value is a relative concept. The probative value of a piece of evidence involves a measurement of the degree to which the evidence persuades the trier of fact that the particular fact exists and the distance of the particular fact from the issues of the case. State v. Williams, 247 Neb. 878, 530 N.W.2d 904 (1995).

If evidence of a prior conviction is relevant to establish elements of another crime, and if the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, the State may prove a prior conviction in any permissible manner. State v. Perrigo, 244 Neb. 990, 510 N.W.2d 304 (1994).

The mere mention of the word "polygraph," when the jury is informed that no such test was given, is not, by itself, sufficiently misleading or confusing that otherwise relevant evidence must be excluded. State v. Walker, 242 Neb. 99, 493 N.W.2d 329 (1992).

Trial court erred in admitting evidence of defendant's previous conviction for similar offense in trial for first degree sexual assault, requiring judgment to be reversed and cause remanded for new trial. State v. Welch, 241 Neb. 699, 490 N.W.2d 216 (1992).

The trial judge has broad discretion in determining the admissibility of evidence under this section, because he or she is in the best position to assess the impact and effect of evidence based upon what he or she perceives from the live proceedings of a trial, while an appellate court can only receive a cold record. State v. Dixon, 240 Neb. 454, 482 N.W.2d 573 (1992).

It is the duty of a trial court to expedite the trial as much as is possible without infringing upon the rights of the parties to a complete and orderly examination of all the facts and circumstances connected with the case. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).

In order to preserve an objection to the admission of evidence, an objection must be made at the time the evidence is offered. State v. Blair, 227 Neb. 742, 419 N.W.2d 868 (1988).

Probative value is a relative concept and involves a measurement of the degree to which the evidence persuades the trier of fact that a particular fact exists and the distance of that particular fact from the ultimate issue in the case. State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).

Where the need for impeachment is small or nonexistent and the danger that the prior inconsistent statement will be considered substantively is great, the statement should be excluded. State v. Price, 202 Neb. 308, 275 N.W.2d 82 (1979).

Relevant evidence is to be excluded only if there is danger of unfair prejudice, confusion, misleading the jury, undue delay, waste of time, or needless accumulation of evidence. Herman v. Midland Ag. Service, Inc., 200 Neb. 356, 264 N.W.2d 161 (1978).

The exercise of judicial discretion is implicit in determinations of relevancy under section 27-401 and prejudice under this section, and a trial court's decision under these evidentiary rules will not be reversed absent an abuse of discretion. State v. Schmidt, 16 Neb. App. 741, 750 N.W.2d 390 (2008); State v. Kuhl, 16 Neb. App. 127, 741 N.W.2d 701 (2007).

For purposes of applying this section, probative value is a relative concept which involves a measurement of the degree to which the evidence persuades the trier of fact that the particular fact exists and the distance of the particular fact from the issues of the case. Wagner v. Union Pacific RR. Co., 11 Neb. App. 1, 642 N.W.2d 821 (2002).

A trial court is justified in taking an active role in enforcing this section in summary proceedings such as for protection orders. Zuco v. Tucker, 9 Neb. App. 155, 609 N.W.2d 59 (2000).

27-404. Rule 404. Character evidence; not admissible to prove conduct; exceptions; evidence of other crimes, wrongs, or acts; standard of proof; sexual assault; provisions applicable.
(1) Evidence of a person's character or a trait of his or her character is not admissible for the purpose of proving that he or she acted in conformity therewith on a particular occasion, except:

(a) Evidence of a pertinent trait of his or her character offered by an accused, or by the prosecution to rebut the same;

(b) Evidence of a pertinent trait of character of the victim of the crime offered by an accused or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor. In a sexual assault case, reputation, opinion, or other evidence of past sexual behavior of the victim is governed by section 27-412; or

(2) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(3) When such evidence is admissible pursuant to this section, in criminal cases evidence of other crimes, wrongs, or acts of the accused may be offered in evidence by the prosecution if the prosecution proves to the court by clear and convincing evidence that the accused committed the crime, wrong, or act. Such proof shall first be made outside the presence of any jury.

(4) Regarding the admissibility in a civil or criminal action of evidence of a person's commission of another offense or offenses of sexual assault under sections 28-319 to 28-322.04, see sections 27-413 to 27-415.

Source:Laws 1975, LB 279, § 14; Laws 1984, LB 79, § 2; Laws 1993, LB 598, § 1; Laws 2009, LB97, § 7.

Annotations
1. Character evidence

2. Prior bad act evidence

3. Probative value determination

4. Effect of remoteness

5. Miscellaneous

1. Character evidence

Although subsection (1)(a) of this section allows the accused to offer evidence of a pertinent trait of his or her character and allows the prosecution to rebut that evidence, section 27-405 limits the manner in which the evidence may be admitted. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).

Subsections (a) and (b) of this section are mutually exclusive. When an accused couples a claim of self-defense with evidence that the victim was the first aggressor, the accused does not interject the issue of the accused's character. State v. Jackson, 258 Neb. 24, 601 N.W.2d 741 (1999).

Under subsection (1)(a) of this section, evidence of the character trait of honesty is admissible in a prosecution for bribery and conspiracy to commit bribery. State v. Vogel, 247 Neb. 209, 526 N.W.2d 80 (1995).

Where a defendant claims that the act of killing a victim was the result of a violent and overriding reaction to a homosexual approach by the victim, evidence of the victim's prior similar homosexual activities may be admissible under certain circumstances as corroborative of the defendant's claim that there was a lack of deliberation or premeditated malice on his or her part necessary to convict of first degree murder. State v. Escamilla, 245 Neb. 13, 511 N.W.2d 58 (1994).

Evidence of a murder victim's homosexuality may be admissible as corroborative of a defendant's claim of self-defense from a homosexual assault, provided such evidence as tendered is probative of that defense. State v. Lowe, 244 Neb. 173, 505 N.W.2d 662 (1993).

The trial court did not err in admitting evidence implying a romantic relationship between defendant and the female host of a party at which defendant broke the jaw of another man to rebut defendant's claimed motive of self-defense. State v. Stueben, 240 Neb. 170, 481 N.W.2d 178 (1992).

Subsection (1)(b) of this section allows the accused in a criminal case to offer evidence of a pertinent trait of character of the victim of the crime for the purpose of proving the victim acted in conformity therewith on a particular occasion. State v. Lewchuk, 4 Neb. App. 165, 539 N.W.2d 847 (1995).

2. Prior bad act evidence

Evidence of prior crimes was not so similar, unusual, or distinctive so as to support its independent relevance on the issue of identity and was inadmissible. State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).

Pursuant to subsection (2) of this section, where there are an overwhelming number of significant similarities between the other crime and the charged offense or offenses, the evidence of the other crime may be admitted, and any dissimilarities merely go to the weight of the evidence. State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).

Subsection (2) of this section prohibits the admissibility of relevant evidence for the purpose of proving the character of a person in order to show that he or she acted in conformity therewith; or, stated another way, the rule prohibits the admission of other bad acts evidence for the purpose of demonstrating a person's propensity to act in a certain manner. State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011).

Bad acts that form the factual setting of the crime in issue or that form an integral part of the crime charged are not subject to this section. State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010).

Evidence of a plaintiff's prior bad acts may be admitted, pursuant to subsection (2) of this section, where it rebuts the plaintiff's evidence of damages. Sturzenegger v. Father Flanagan's Boys' Home, 276 Neb. 327, 754 N.W.2d 406 (2008).

Evidence of prior bad acts which is relevant for any purpose other than to show the actor's propensity is admissible under subsection (2) of this section. Evidence that is offered for a proper purpose is often referred to as having "special" or "independent relevance," which means its relevance does not depend on its tendency to show propensity. Sturzenegger v. Father Flanagan's Boys' Home, 276 Neb. 327, 754 N.W.2d 406 (2008).

Bad acts that form the factual setting of the crime in issue or that form an integral part of the crime charged are not covered under subsection (2) of this section. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).

Where evidence of other crimes is so blended or connected with the ones on trial so that proof of one incidentally involves the others, or explains the circumstances, or tends logically to prove any element of the crime charged, it is admissible as an integral part of the immediate context of the crime charged. When the other crimes evidence is so integrated, it is not extrinsic and therefore not governed by this section. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).

Bad acts that form the factual setting of the crime in issue or that form an integral part of the crime charged are not part of the coverage under Neb. Evid. R. 404(2), subsection (2) of this section. State v. Wisinski, 268 Neb. 778, 688 N.W.2d 586 (2004).

This section specifically prohibits the admission of other bad acts evidence for the purpose of demonstrating a person's propensity to act in a certain manner. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).

Pursuant to subsection (2) of this section, evidence admitted did not constitute Neb. Evid. R. 404 evidence of prior bad acts. The evidence introduced was part of the factual setting of the crime. State v. Aguilar, 264 Neb. 899, 652 N.W.2d 894 (2002).

Where uncharged misconduct is not evidence of prior bad acts, this section does not apply. State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002).

The defendant's statements to neighbors and coworkers prior to the murder that he wanted to hurt or kill the victim do not constitute prior bad act evidence. State v. Canbaz, 259 Neb. 583, 611 N.W.2d 395 (2000).

Pursuant to subsection (2) of this section, this is a rule of inclusion rather than exclusion. Pursuant to subsection (2) of this section, the evidence of other crimes need not be identical to the act charged to be admissible. State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997).

The mere fact a criminal defendant has been charged with previous crimes is not legal evidence of other crimes, wrongs, or acts, let alone clear and convincing evidence that the accused committed the alleged crimes, wrongs, or acts. State v. McBride, 250 Neb. 636, 550 N.W.2d 659 (1996).

Subsection (2) of this section is an inclusionary rule permitting the use of relevant, specific acts for all purposes except to prove character of a person in order to show that such person acted in conformity with character. State v. Perrigo, 244 Neb. 990, 510 N.W.2d 304 (1994); State v. Kenny, 224 Neb. 638, 399 N.W.2d 821 (1987); State v. Robb, 224 Neb. 14, 395 N.W.2d 534 (1986); State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985); State v. Craig, 219 Neb. 70, 361 N.W.2d 206 (1985).

Subsection (2) of this section is an inclusionary rule permitting the use of relevant other crimes, wrongs, or acts for all purposes except to prove character of a person in order to show that such a person acted in conformity with that character; it may be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in determining the accused's guilt of the offense in question. State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993); State v. Kern, 224 Neb. 177, 397 N.W.2d 23 (1986).

Under subsection (2) of this section, the acts of a third person are irrelevant and inadmissible for proof of motive or intent of an actor. The "other crimes, wrongs, or acts" must be those of the accused. State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993).

In prosecution for incest, testimony of both the victim and her brother was relevant and material to prove opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake, all legitimate purposes for admitting testimony of prior bad acts. State v. Martin, 242 Neb. 116, 493 N.W.2d 191 (1992).

Subsection (2) of this section is an inclusionary rule permitting the use of uncharged misconduct evidence if the evidence is relevant for any purpose other than to show a defendant's propensity or disposition to commit the crime charged. State v. Hernandez, 242 Neb. 78, 493 N.W.2d 181 (1992).

It is firmly established that subsection (2) of this section is a rule of inclusion which permits the use of relevant other crimes, wrongs, or acts for all purposes except to prove the character of a person in order to show that such person acted in conformity with that character. State v. Styskal, 242 Neb. 26, 495 N.W.2d 313 (1992); State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).

Subsection (2) of this section permits evidence of other crimes, wrongs, or acts if such is relevant for a purpose other than to show a defendant's propensity or disposition to commit the crime charged. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992); State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990); State v. Methe, 228 Neb. 468, 422 N.W.2d 803 (1988).

Evidence of other crimes is not admissible unless there is sufficient evidence that the crimes were actually committed and that defendant committed them to warrant submission to a jury if the other crimes had been charged. State v. Timmerman, 240 Neb. 74, 480 N.W.2d 411 (1992).

Under subsection (2) of this section, prior transactions involving defendant's acceptance of stolen property in exchange for drugs are relevant and admissible to establish defendant's knowledge that the property which is the subject of the prosecution is, in fact, stolen. State v. Messersmith, 238 Neb. 924, 473 N.W.2d 83 (1991).

In prosecution for first degree sexual assault of defendant's infant granddaughter, evidence of similar sexual conduct with stepdaughter 27 years earlier under extremely similar circumstances held admissible to show absence of mistake or accident. State v. Stephens, 237 Neb. 551, 466 N.W.2d 781 (1991).

Subsection (2) of this section allows the admission of evidence of other crimes, wrongs, or acts for the purpose of establishing identity or a particular method of operation. State v. Evans, 235 Neb. 575, 456 N.W.2d 739 (1990).

Under subsection (2) of this section, evidence of other criminal acts which involve or explain the circumstances of the crime charged, or are integral parts of an overall occurrence, may be admissible. It is competent for the prosecution to put in evidence all relevant facts and circumstances which tend to establish any of the constituent elements of the crime with which the accused is charged, even though such facts and circumstances may prove or tend to prove that the defendant committed other crimes. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).

It is well established that subsection (2) of this section is an inclusionary rule permitting the use of relevant evidence of other crimes, wrongs, or acts for purposes other than to prove the character of a person in order to show that such person acted in conformity with that character. Thus, this section permits evidence of other crimes, wrongs, or acts if such is relevant for a purpose other than to show defendant's propensity or disposition to commit the crime charged. State v. Donhauser, 231 Neb. 114, 435 N.W.2d 186 (1989); State v. Stewart, 219 Neb. 347, 363 N.W.2d 368 (1985).

Evidence of prior bad acts is an attempt to show character contrary to subsection (1) of this section. State v. Lenz, 227 Neb. 692, 419 N.W.2d 670 (1988).

Subsection (2) of this section is an inclusionary rule of evidence permitting the use of relevant other crimes, wrongs, or acts for the purposes enumerated. Evidence of prior uncharged sexual assault was admissible to show location, scheme, plan, and motive. State v. Nesbitt, 226 Neb. 32, 409 N.W.2d 314 (1987).

This section is an inclusionary rule which permits the use of relevant other crimes, wrongs, or acts if such is relevant for any purpose other than to show defendant's propensity or disposition to commit the crime charged. Certain tape-recorded statements were admissible to show why witness failed to promptly report her accusations against the defendant. State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).

Under this section, a defendant's attempted intimidation or intimidation of a State's informant or witness is relevant evidence concerning the defendant's conscious guilt that a crime has been committed, and is a circumstance from which an inference may be drawn that the defendant is guilty of the crime charged. State v. Clancy, 224 Neb. 492, 398 N.W.2d 710 (1987).

The admissibility of evidence of other crimes lies largely within the discretion of the trial court. State v. Baker, 218 Neb. 207, 352 N.W.2d 894 (1984).

Evidence that the defendant was previously involved in a marijuana harvesting scheme is not admissible to prove a later, unconnected, possession charge. State v. Coca, 216 Neb. 76, 341 N.W.2d 606 (1983).

Past patterns of behavior are admissible in cases involving termination of parental rights, when relevant to motive, opportunity, intent, preparation, plan, knowledge, and absence of mistake or accident. In re Interest of Hollenbeck, 212 Neb. 253, 322 N.W.2d 635 (1982).

In trial on charges of assault where knife was used in assault, evidence that defendant had earlier the same day struck someone with his fists was not admissible under this section since it did not tend to prove intent, motive, opportunity, preparation, plan, knowledge, identity, or absence of mistake or accident as to assault with knife. State v. Stewart, 209 Neb. 719, 310 N.W.2d 706 (1981).

Evidence of prior shotgun assault of intended victim's family clearly admissible under this section. State v. Harper, 208 Neb. 568, 304 N.W.2d 663 (1981).

Evidence of prior criminal acts was admissible to explain the circumstances of the crime charged, to explain the failure of the victim to make a prompt complaint, and to show a continuous pattern of sexual conduct by the defendant toward both his sons. State v. Hitt, 207 Neb. 746, 301 N.W.2d 96 (1981).

Evidence of prior similar offenses properly received in a nonjury child abuse action where an element of the crime involved motive and criminal intent. State v. Morosin, 200 Neb. 62, 262 N.W.2d 194 (1978).

Evidence of bank account shortages admissible to prove intent in forgery conviction. State v. Metzger, 199 Neb. 186, 256 N.W.2d 691 (1977).

Insufficient funds checks evidencing crimes other than one defendant charged with were admissible to show guilty knowledge and course of conduct. State v. Costello, 199 Neb. 43, 256 N.W.2d 97 (1977).

Evidence of defendant's prior conviction held admissible to confirm identity, motive, and method of operation. State v. Moore, 197 Neb. 294, 249 N.W.2d 200 (1976).

Evidence of other bad acts falls into two categories under subsection (2) of this section, according to the basis of the relevance of the acts: (1) evidence which is relevant only to show propensity, which is not admissible, and (2) otherwise relevant (nonpropensity) evidence, which is admissible. State v. Sutton, 16 Neb. App. 185, 741 N.W.2d 713 (2007).

Evidence of other crimes which is relevant for any purpose other than to show the actor's propensity is admissible under subsection (2) of this section. State v. Sutton, 16 Neb. App. 185, 741 N.W.2d 713 (2007).

Subsection (2) of this section prohibits the admission of evidence of other bad acts for the purpose of demonstrating a person's propensity to act in a certain manner. State v. Sutton, 16 Neb. App. 185, 741 N.W.2d 713 (2007).

The admissibility of evidence under subsection (2) of this section must be determined upon the facts of each case and is within the discretion of the trial court. State v. Sutton, 16 Neb. App. 185, 741 N.W.2d 713 (2007).

Pursuant to subsection (2) of this section, an absolute identity in every detail is not required for evidence of other bad acts to be admissible under this section for the proper purpose of establishing identity, and the question is whether the acts are so similar, unusual, and distinctive that it could reasonably be found that they bear the same signature. State v. Bockman, 11 Neb. App. 273, 648 N.W.2d 786 (2002).

Prior conduct which is inextricably intertwined with the charged crime is not considered extrinsic evidence of other crimes or bad acts and is not rendered inadmissable by this section. State v. Powers, 10 Neb. App. 256, 634 N.W.2d 1 (2001).

Pursuant to subsection (2) of this section, proof of a signature of a crime from other bad acts is a proper purpose. State v. Gray, 8 Neb. App. 973, 606 N.W.2d 478 (2000).

In a defendant's trial for sexual assault of a minor, evidence of the defendant's physical violence against the family was admissible under subsection (2) of this section because the evidence explained why the victim failed to report the defendant's abuse. State v. Egger, 8 Neb. App. 740, 601 N.W.2d 785 (1999).

Pursuant to subsection (2) of this section, identity means a particular method of operation or little more than the logical conclusion which flows from other crimes evidence advanced in proof of plan, design, scheme, or modus operandi. State v. Wade, 7 Neb. App. 169, 581 N.W.2d 906 (1998).

The Nebraska Evidence Rules apply at a hearing conducted pursuant to subsection (3) of this section, and a criminal defendant is entitled to a full evidentiary hearing on the admissibility of prior bad acts evidence under subsection (3) of this section. State v. Wilson, 5 Neb. App. 125, 556 N.W.2d 643 (1996).

Pursuant to subsection (2) of this section, an accused may offer evidence of prior crimes, wrongs, or acts of a third party for a purpose other than proving the propensity of the person to commit the crime charged. State v. Gardner, 1 Neb. App. 450, 498 N.W.2d 605 (1993).

Under subsection (2) of this section, evidence regarding defendant's past drug dealings with informant was admissible to show knowledge and intent of defendant to commit the crime charged. State v. Benitez, 1 Neb. App. 310, 493 N.W.2d 353 (1992).

3. Probative value determination

Pursuant to subsection (2) of this section, the probative value of evidence of a prior shooting by the defendant was substantially outweighed by its prejudice when the shooting was an isolated act occurring 29 days before the present alleged crime and a jury acquitted the defendant of committing the shooting. State v. Kirksey, 254 Neb. 162, 575 N.W.2d 377 (1998).

Pursuant to subsection (2) of this section, evidence of other crimes, wrongs, or acts may be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in determining the accused's guilt of the offense in question. State v. Buechler, 253 Neb. 727, 572 N.W.2d 65 (1998).

If evidence of a prior conviction is relevant to establish elements of another crime, and if the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, the State may prove a prior conviction in any permissible manner. Subsection (2) of this section is subject to the overriding protection of section 27-403. State v. Perrigo, 244 Neb. 990, 510 N.W.2d 304 (1994).

In reviewing the admission of prior acts, the reviewing court should consider the relevance of the evidence, the purpose for its introduction, and the probative value balanced against its potential for unfair prejudice. State v. Farrell, 242 Neb. 877, 497 N.W.2d 17 (1993).

Where a police officer testified to an informant's drug purchase from a third party who went to defendant's home prior to completion of the transaction, the potential for unfair prejudice outweighs its probative value. However, the erroneously admitted evidence was cumulative and harmless beyond a reasonable doubt where there was other properly admitted evidence showing intent to deliver cocaine in accord with the circumstantial evidence of past delivery. State v. Hernandez, 242 Neb. 78, 493 N.W.2d 181 (1992).

Evidence admissible under subsection (2) of this section is limited by section 27-403, which provides for the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of, among other things, unfair prejudice. For purposes of subsection (2) of this section, it is sufficient that the evidence be of similar involvement reasonably related to the charged conduct and be presented in a manner in which prejudice does not outweigh its probative value. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).

Under subsection (2) of this section, evidence of prior acts is admissible if relevant unless it is unfairly prejudicial in the sense that it tends to make the conviction of the defendant more probable for an incorrect reason. State v. Christian, 237 Neb. 294, 465 N.W.2d 756 (1991).

In reviewing the actions of a trial court in admitting evidence of other crimes under subsection (2) of this section to determine if there was unfair prejudice in the admission of the evidence, an appellate court considers (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted. State v. Yager, 236 Neb. 481, 461 N.W.2d 741 (1990); State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990); State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989); State v. Doremus, 2 Neb. App. 784, 514 N.W.2d 649 (1994).

Under subsection (2) of this section, evidence of other crimes, wrongs, or acts may be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in determining the accused's guilt of the offense in question. State v. Ruyle, 234 Neb. 760, 452 N.W.2d 734 (1990).

This section is subject to the overriding protections of section 27-403. Trial court in first degree murder case did not err in receiving testimony about a prior robbery in which the defendant was involved because it established a motive and also because its probative value outweighed the danger of unfair prejudice. State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).

Subsection (2) of this section is subject to the overriding protection of section 27-403 which states that evidence of other acts must be excluded if, among other things, the probative value of the evidence of other acts is substantially outweighed by the danger of unfair prejudice to the defendant. State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985).

4. Effect of remoteness

Pursuant to subsection (2) of this section, while remoteness in time may weaken the value of prior bad acts evidence, such remoteness does not, in and of itself, necessarily justify exclusion of that evidence. State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).

The question of remoteness in time for the purposes of subsection (2) of this section is a matter within the discretion of the trial court. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992); State v. Keithley, 218 Neb. 707, 358 N.W.2d 761 (1984).

The question of whether evidence of other conduct otherwise admissible under the provisions of subsection (2) of this section is too remote in time is largely within the discretion of the trial court. While remoteness in time may weaken the value of the evidence, such remoteness does not, in and of itself, necessarily justify exclusion of the evidence. Remoteness, or the temporal span between a prior crime, wrong, or other act offered as evidence, goes to the weight to be given to such evidence and does not render the evidence of the other crime, wrong, or act irrelevant and inadmissible. State v. Yager, 236 Neb. 481, 461 N.W.2d 741 (1990); State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (1989); State v. Rincker, 228 Neb. 522, 423 N.W.2d 434 (1988).

The admissibility of evidence concerning other conduct under subsection (2) of this section must be determined upon the facts of each case; no exact limitation of time can be fixed as to when other conduct tending to prove intent to commit the offense charged is remote. State v. Rincker, 228 Neb. 522, 423 N.W.2d 434 (1988).

5. Miscellaneous

Evidence can be properly admitted to explain the victim's failure to make a prompt complaint. State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010).

The term "pertinent" as used within the context of subsection (1)(b) of this section is synonymous with the term "relevant" as used in section 27-401. State v. Floyd, 277 Neb. 502, 763 N.W.2d 91 (2009).

Whether subsection (2) of this section or section 27-608(2) applies to the admissibility of other-acts evidence depends on the purpose for which the proponent introduced the other-acts evidence. Subsection (2) of this section applies when extrinsic evidence is offered as relevant to a material issue in the case. Section 27-608(2) applies when extrinsic evidence is offered to impeach a witness, to show the character of the witness for untruthfulness— other words, where the only theory of relevance is impeachment by prior misconduct. So, because section 27-608(2) affects only evidence of prior instances of conduct when properly relevant solely for the purpose of attacking or supporting a witness' credibility, it in no way affects the admission of evidence of such prior acts for other purposes under subsection (2) of this section. Sturzenegger v. Father Flanagan's Boys' Home, 276 Neb. 327, 754 N.W.2d 406 (2008).

In a prosecution for child abuse, evidence of previous abuse of a child is admissible to show absence of accident only if the state shows by a preponderance of the evidence that there is a connection between the defendant and the child's injuries. State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007).

In a murder trial, evidence of the defendant's returning from a city and of a vehicle the defendant drove being burned in a field in that city was intrinsic to the crimes for which he was charged. Accordingly, the trial court did not err in admitting this evidence without first conducting a hearing pursuant to this section. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).

Intent was not a fact of consequence and therefore cannot provide a basis for independent relevance of the other crimes evidence. Opportunity was not a fact of consequence and therefore cannot provide a basis for independent relevance of the other crimes evidence. No logical reason was articulated as to why motive was a fact of consequence, and therefore, motive cannot provide a basis for independent relevance of the other crimes evidence. While identity was a fact of consequence, evidence of identity lacked probative value and thus could not be admitted for a proper purpose. State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).

Pursuant to subsection (2) of this section, the admissibility of other crimes evidence must be determined upon the facts of each case and is within the discretion of the trial court. Clear and convincing evidence that the accused committed the crime is presented when there is sufficient evidence to warrant submission to a trier of fact if the accused had been charged with the crimes. Subsection (2) of this section considers whether the (1) evidence was relevant for some purpose other than to prove the character of a person to show that he or she acted in conformity therewith, (2) probative value of the evidence is substantially outweighed by its potential for unfair prejudice, and (3) trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted. Henceforth, the proponent of evidence offered pursuant to subsection (2) of this section shall, upon objection to its admissibility, be required to state on the record the specific purpose or purposes for which the evidence is being offered and that the trial court shall similarly state the purpose or purposes for which such evidence is received. A limiting instruction given upon receipt of prior bad acts evidence shall state the purpose or purposes for which such evidence was received. State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).

Pursuant to subsection (3) of this section, because it was the victim's report, not the occurrence or nonoccurrence of the claimed events which provided the motive, a separate rule 404(3) hearing had no application. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).

Evidence admissible under subsection (2) of this section may be excluded under section 27-403 if its probative value is substantially outweighed by other considerations. This section is a rule of inclusion, rather than exclusion, and permits the use of relevant bad acts for all purposes except to prove the character of a person to show that the person acted in conformity with that character. The admission of evidence of other acts under subsection (2) of this section is reviewed by considering whether the evidence was relevant, whether the evidence had a purpose, whether the probative value of the evidence outweighed its potential for unfair prejudice, and whether the trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted. State v. Carter, 246 Neb. 953, 524 N.W.2d 763 (1994).

The purposes set forth in subsection (2) of this section are illustrative only and not intended to be exhaustive or mutually exclusive. State v. Perrigo, 244 Neb. 990, 510 N.W.2d 304 (1994).

In prosecution for possession of cocaine and methamphetamine, evidence as to whether defendant had ever used cocaine is improper. State v. Friend, 230 Neb. 765, 433 N.W.2d 512 (1988).

In order to preserve an objection to the admission of evidence under subsection (2) of this section, an objection must be made at the time the evidence is offered. State v. Blair, 227 Neb. 742, 419 N.W.2d 868 (1988).

Evidence of conviction of a crime is, in some respects, more limited than under former section, but is not restricted to felonies as such. State v. Lang, 197 Neb. 47, 246 N.W.2d 608 (1976).

An appellate court's analysis under subsection (2) of this section considers (1) whether the evidence was relevant for some purpose other than to prove the character of a person to show that he or she acted in conformity therewith, (2) whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice, and (3) whether the trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted. State v. Sutton, 16 Neb. App. 185, 741 N.W.2d 713 (2007).

A trial court is under no obligation to make express findings in rulings pursuant to this section. State v. Dreimanis, 8 Neb. App. 362, 593 N.W.2d 750 (1999).

This section does not prohibit the mention of prior convictions. State v. Dreimanis, 8 Neb. App. 362, 593 N.W.2d 750 (1999).

To determine if there was unfair prejudice in admitting evidence of other crimes under this section, an appellate court considers (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted. State v. Dreimanis, 8 Neb. App. 362, 593 N.W.2d 750 (1999).

An appellate court reviews the admission of other acts under subsection (2) of this section by considering (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted. State v. Wade, 7 Neb. App. 169, 581 N.W.2d 906 (1998).

Subsection (2) of this section is a rule of inclusion, rather than exclusion, and it permits the use of evidence of prior activity except to prove the character of a person in order to show that the person acted in conformity with that character. State v. Wade, 7 Neb. App. 169, 581 N.W.2d 906 (1998).

27-405. Rule 405. Method of proving character; reputation or opinion; specific instances of conduct.
(1) In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(2) In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.

Source:Laws 1975, LB 279, § 15.

Annotations
Although subsection (1)(a) of section 27-404 allows the accused to offer evidence of a pertinent trait of his or her character and allows the prosecution to rebut that evidence, this section limits the manner in which the evidence may be admitted. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).

This section limits the defendant's evidence of character to evidence of opinion or reputation. But even when a defendant improperly offers specific instances of his or her good conduct, the prosecution may not counter by offering evidence of specific instances of bad conduct. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).

Under this section, the prosecution's rebuttal witnesses may testify only to reputation or opinion. The witnesses may not be used to prove that specific instances of conduct occurred. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).

When character is not an element of the crime or a defense, this section dictates that the only inquiry that can be made into specific instances of conduct is through cross-examination of the defendant's character witnesses, and during cross-examination, the prosecutor is limited to an inquiry whether the witness has heard of a given fact, misdeed, or criminal conviction. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).

The language of this section changes the prior case law rule, that evidence of a homicide victim's propensity for violence ordinarily is admissible only in the form of reputation testimony, so that when character is an essential element of a charge, claim, or defense, it will also be admissible. State v. Sims, 213 Neb. 708, 331 N.W.2d 255 (1983).

Defendant's character witness was properly cross-examined on specific instances of defendant's prior convictions. State v. Eynon, 197 Neb. 734, 250 N.W.2d 658 (1977).

Under subsection (2) of this section, the accused in a criminal case may offer evidence of specific instances of conduct of the victim of the crime for the purpose of proving the victim was the first aggressor to substantiate the accused's self-defense claim. State v. Lewchuk, 4 Neb. App. 165, 539 N.W.2d 847 (1995).

The type of character evidence admissible under this section and section 27-608 does not include the opinion of an expert witness regarding the truthfulness of another witness based upon purported scientific studies. State v. Maggard, 1 Neb. App. 529, 502 N.W.2d 493 (1993).

27-406. Rule 406. Habit; routine practice; admissibility; method of proof.
(1) Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

(2) Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.

Source:Laws 1975, LB 279, § 16.

Annotations
Evidence was insufficient to show a routine or habit within the meaning of this section, because a single incident did not establish a routine, and the relevance of the evidence depended on the claim that the actor engaged in a deliberate volitional act, not a habit. State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).

Admissibility of habit evidence depends on the trial judge's evaluation of the particular facts and is thus reviewed for an abuse of discretion. Borley Storage & Transfer Co. v. Whitted, 271 Neb. 84, 710 N.W.2d 71 (2006).

The precise contours of how frequently and consistently a behavior must occur to rise to the level of habit cannot be easily defined or formulated, and as with other areas of relevancy, admissibility depends on the judge's evaluation of the particular facts of the case. The exercise of judicial discretion is implicit in determinations of relevancy and admissibility under this section, and as a result, the trial court's decision will not be reversed absent an abuse of discretion. Under this section, the trial court determines whether the predicate evidence necessary to prove conduct by habit has been introduced. Habit may be shown by opinion or specific instances of conduct. It is within the trial court's discretion to determine if there is sufficient foundation for a witness to give his or her opinion about an issue in question. Habit evidence is relevant because such evidence makes it more probable that the person acted in a manner consistent with that habit. Hoffart v. Hodge, 9 Neb. App. 161, 609 N.W.2d 397 (2000).

27-407. Rule 407. Subsequent remedial measures.
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. Negligence or culpable conduct, as used in this rule, shall include, but not be limited to, the manufacture or sale of a defective product.

Source:Laws 1975, LB 279, § 17; Laws 1978, LB 665, § 7.

Annotations
The determination of feasibility includes a consideration of whether an action would have been effective and practical. McDermott v. Platte Cty. Ag. Socy., 245 Neb. 698, 515 N.W.2d 121 (1994).

This section does not require exclusion of evidence concerning subsequent repairs, alterations, or precautions, when such evidence is offered for the purpose of impeachment affecting credibility of the witness impeached. Rahmig v. Mosley Machinery Co., 226 Neb. 423, 412 N.W.2d 56 (1987).

Evidence of subsequent acts is admissible on the issue of feasibility of precautionary measures, if controverted. In this case, testimony to the effect that erection of snow fences would not have been a feasible precautionary measure could properly be rebutted by evidence that, subsequent to the incident giving rise to this action, snow fences were erected. Kurz v. Dinklage Feed Yard, Inc., 205 Neb. 125, 286 N.W.2d 257 (1979).

"Feasibility" as used in this section includes effectiveness and practicality as well as possibility. Kurz v. Dinklage Feed Yard, Inc., 205 Neb. 125, 286 N.W.2d 257 (1979).

27-408. Rule 408. Compromise and offers to compromise.
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Source:Laws 1975, LB 279, § 18.

Annotations
A notice of acquisition sent to a landowner prior to beginning condemnation proceedings constitutes a privileged communication during statutorily required negotiations and, thus, may be excluded pursuant to this section. In re Application of SID No. 384 of Douglas County, 259 Neb. 351, 609 N.W.2d 679 (2000).

Although evidence of insurance is admissible for some other purposes under section 27-411, where evidence is directed solely at showing the amount for which a party settled with its insurer and where there is no showing that they had represented the value of the damaged and discarded products to be less than was claimed in the suit or for which it obtained judgment, the evidence is an inadmissible compromise or settlement pursuant to this section. Delicious Foods Co. v. Millard Warehouse, 244 Neb. 449, 507 N.W.2d 631 (1993).

Agreement on less than all issues of a dispute that is being negotiated will normally be treated as an offer to compromise under this section. Pribil v. Koinzan, 11 Neb. App. 199, 647 N.W.2d 110 (2002).

27-409. Rule 409. Payment of medical and similar expenses.
Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

Source:Laws 1975, LB 279, § 19.

27-410. Rule 410. Guilty plea; nolo contendere; offered plea; withdrawn plea; inadmissible; exceptions.
Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal action, case, or proceeding against the person who made the plea or offer. This rule shall not apply to the introduction of voluntary and reliable statements made in court on the record in connection with any of the foregoing pleas or offers when offered for impeachment purposes or in a subsequent prosecution of the declarant for perjury or false statement.

Source:Laws 1975, LB 279, § 20.

Annotations
The evidentiary rule provided in this section, that a withdrawn guilty plea is not admissible in any civil or criminal action or proceeding against the person who made it, does not apply to the sentencing stage of a criminal proceeding. State v. Klappal, 218 Neb. 374, 355 N.W.2d 221 (1984).

Under some circumstances a plea of guilty entered by the defendant in a criminal action may be used against him as an admission in a subsequent action involving the same subject matter; a violation of a statute or ordinance enacted in the interest of public safety, while not negligence per se, is evidence of negligence. Schaefer v. McCreary, 216 Neb. 739, 345 N.W.2d 821 (1984).

The fact of conviction resulting from a nolo contendere plea may be used in a subsequent proceeding. In re Interest of Verle O., 13 Neb. App. 256, 691 N.W.2d 177 (2005).

27-411. Rule 411. Liability insurance.
Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

Source:Laws 1975, LB 279, § 21.

Annotations
The remote potential for bias of a witness on the basis of sharing the same insurance carrier as the defendant must be balanced against the prejudicial effect of its admission. Reimer v. Surgical Servs. of the Great Plains, P.C., 258 Neb. 671, 605 N.W.2d 777 (2000).

Although evidence of insurance is admissible for some other purposes under this section, where evidence is directed solely at showing the amount for which a party settled with its insurer and where there is no showing that they had represented the value of the damaged and discarded products to be less than was claimed in the suit or for which it obtained judgment, the evidence is an inadmissible compromise or settlement pursuant to section 27-408. Delicious Foods Co. v. Millard Warehouse, 244 Neb. 449, 507 N.W.2d 631 (1993).

Where the existence of insurance coverage is not relevant to any issue in the case, evidence of such coverage is inadmissible. Kresha v. Kresha, 216 Neb. 377, 344 N.W.2d 906 (1984).

Inadvertent mention of plaintiff's lack of health insurance is not prejudicial error requiring mistrial where it is not shown that jury inferred that plaintiff was incapable of paying expenses. Where indemnification of defendants does not logically follow from the fact that plaintiff lacked health insurance, it cannot be said that defendants were prejudiced. Bailey v. AMISUB, 1 Neb. App. 56, 489 N.W.2d 323 (1992).