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. SourceLaws 1975, LB 279, § 11. Annotations1. Probative value2. Relevancy determined3. Admissibility4. Miscellaneous1. Probative valueAn 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 determinedThe 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).3. AdmissibilityA 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. MiscellaneousIn 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).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).