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. SourceLaws 1975, LB 279, § 13. Annotations1. Unfair prejudice2. Cumulative testimony3. Miscellaneous1. Unfair prejudiceUnder 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).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).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).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 testimonyA 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).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).3. MiscellaneousExercise 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).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).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).