NE Code § 27-401 (2021)
2021 Nebraska Revised Statutes|Chapter 27 - Courts; Rules of Evidence|27-401 - Rule 401. Relevant evidence, defined.

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. Relevance generally 3. Relevancy in particular cases 4. Review 5. 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); State v. Oliva, 228 Neb. 185, 422 N.W.2d 53 (1988). 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). 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). 2. Relevance generally Relevance is a relational concept and carries meaning only in context. Evidence may be irrelevant if it is directed at a fact not properly an issue under the substantive law of the case or if the evidence fails to alter the probabilities of the existence or nonexistence of a fact in issue. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017). To be admitted at trial, evidence must be relevant, meaning 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. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017). 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). 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). 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). 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). 3. Relevancy in particular cases Testimony regarding controlled substances seized from the defendant's home was relevant to corroborate testimony of eyewitness and two jailhouse informants in a murder trial, where the eyewitness testified that she purchased marijuana from the defendant on the night of the incident, the first informant testified that the defendant told him that drugs were found during the search of his house, and the second informant testified as to the defendant's statements about the substances seized from his house. State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020). To determine whether a statement by a law enforcement official in a recorded interview is relevant for the purpose of providing context to a defendant's statement, a court first considers whether the defendant's statement itself is relevant, whether it makes a material fact more or less probable. If the defendant's statement is itself relevant, then a court must consider whether the law enforcement statement is relevant to provide context to the defendant's statement. To do this, a court considers whether the defendant's statement would be any less probative in the absence of the law enforcement statement. If the law enforcement statement does not make the defendant's statement any more probative, it is not relevant. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017). The relevance of DNA evidence depends on whether it tends to include or exclude an individual as the source of a biological sample. Nebraska case law generally requires that DNA testing results be accompanied by statistical evidence or a probability assessment that explains whether the results tend to include or exclude the individual as a potential source. State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015). Unless the State presents the statistical significance of DNA testing results that shows a defendant cannot be excluded as a potential source in a biological sample, the results are irrelevant. They are irrelevant because they do not help the fact finder assess whether the defendant is or is not the source of the sample. And because of the significance that jurors will likely attach to DNA evidence, the value of inconclusive testing results is substantially outweighed by the danger that the evidence will mislead the jurors. State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015). 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). 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). 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). 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). Evidence of risk-of-procedure or risk-of-surgery discussions with the patient is generally irrelevant and unfairly prejudicial where the plaintiff alleges only negligence, and not lack of informed consent. Hillyer v. Midwest Gastrointestinal Assocs., 24 Neb. App. 75, 883 N.W.2d 404 (2016). 4. Review 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). 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). 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). 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. Wagner v. Union Pacific RR. Co., 11 Neb. App. 1, 642 N.W.2d 821 (2002). 5. 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). 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).