NE Code § 27-403 (2021)
2021 Nebraska Revised Statutes|Chapter 27 - Courts; Rules of Evidence|27-403 - Rule 403. Exclusion of relevant evidence; reasons.

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, generally 2. Unfair prejudice, particular cases 3. Discretion of trial court 4. Photographs of victims 5. Miscellaneous 1. Unfair prejudice, generally In the context of this section, unfair prejudice means an undue tendency to suggest a decision based on an improper basis. Unfair prejudice speaks to the capacity of some concededly relevant evidence to lure the fact finder into declaring guilt on a ground different from proof specific to the offense charged, commonly on an emotional basis. State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020). Under this section, even evidence that is relevant is not admissible 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. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017). 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); State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006). 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). 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); Brown v. Farmers Mut. Ins. Co., 237 Neb. 855, 468 N.W.2d 105 (1991); Lincoln Grain v. Coopers & Lybrand, 216 Neb. 433, 345 N.W.2d 300 (1984). 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). 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). 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). 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. Unfair prejudice, particular cases While the fact that a defendant was acquitted of sexual assault charges in a prior prosecution does not affect the threshold admissibility of the evidence under section 27-414, it is relevant to the undue prejudice analysis conducted under that section and under this section. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020). The defendant's statements about family abuse do not bear a significant risk of unfair prejudice. State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018). The defendant's statements in which he referenced "'gang-banging'" in his past and not believing in God carried a risk of unfair prejudice, but the risk was not significant given the isolated and brief nature of the statements in the context of the 2-hour interview. State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018). In a will contest, the trial court did not abuse its discretion in receiving into evidence a video showing the execution of an earlier will; the video was neither unfairly prejudicial nor cumulative. In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (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). Coercive police activity is a necessary predicate to a court’s finding that a confession is not voluntary under the Due Process Clause of the 14th Amendment. But a statement allegedly obtained solely by private citizens through coercion or duress can be challenged as inadmissible because the danger of prejudice outweighs any probative value. State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014). A criminal defendant to a driveby shooting failed to show that the admission of photographs showing him and others with guns was unfairly prejudicial under this section. State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013). The probative value of prior drug sales to show identity was not substantially outweighed by their prejudicial value, and the defendant was not unfairly prejudiced when the similarities between the prior acts and the charged crime were overwhelming and the jury was instructed on the limited use of the evidence to prove identification. State v. Payne-McCoy, 284 Neb. 302, 818 N.W.2d 608 (2012). 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). 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). 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's 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). On question of witness's 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). 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). 3. Discretion of trial court An appellate court reviews for an abuse of discretion a trial court's evidentiary rulings on the admissibility of a defendant's other crimes or bad acts under subsection (2) of this section or under the inextricably intertwined exception to the rule. State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019). Only rarely, and in extraordinarily compelling circumstances, will an appellate court, from the vista of a cold appellate record, reverse a trial court's on-the-spot judgment concerning the relative weighing of probative value and unfair effect to determine whether relevant evidence should be excluded. State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016). 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); Seeber v. Howlette, 255 Neb. 561, 586 N.W.2d 445 (1998); 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). 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). 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). 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). 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). 4. Photographs of victims Gruesome crimes produce gruesome evidence, but the State may generally choose its evidence to present a coherent picture of the facts of the crimes charged. State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019). An appellate court reviews the court’s admission of photographs of a victim’s body for abuse of discretion. State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014). If the State lays proper foundation, photographs that illustrate or make clear a controverted issue in a homicide case are admissible, even if gruesome. State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014). The admission of photographs of a gruesome nature rests largely with the discretion of the trial court, which must determine their relevancy and weigh their probative value against their prejudicial effect. State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014). The admission of photographs of a gruesome nature rests largely within the discretion of the trial court, which must determine their relevancy and weigh their probative value against their prejudicial effect. In a homicide prosecution, a court may receive photographs of a victim into evidence for the purpose of identification, to show the condition of the body or the nature and extent of wounds and injuries to it, and to establish malice or intent. State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012). 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). 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). 5. Miscellaneous Under this section and sections 27-701 and 27-702, a witness may not give an opinion as to a defendant's guilt or how the case should be decided, but, rather, must leave the conclusions to be drawn by the trier of fact, because such opinions are not helpful. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017). A court should exclude an expert's opinion when it gives rise to conflicting inferences of equal probability, so the choice between them is a matter of conjecture. An expert opinion which is equivocal and is based upon such words as "could," "may," or "possibly" lacks the certainty required to sustain the burden of proof of causation for which the opinion has been offered. State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015). An expert does not have to couch his or her opinion in the magic words of "reasonable certainty," but it must be sufficiently definite and relevant to provide a basis for the fact finder's determination of a material fact. State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015). 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). 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). 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); State v. Williams, 247 Neb. 878, 530 N.W.2d 904 (1995); State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987); Wagner v. Union Pacific RR. Co., 11 Neb. App. 1, 642 N.W.2d 821 (2002). 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). 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). 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). 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). 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). 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). 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).