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

Annotations

1. Admissibility in particular cases

2. Miscellaneous

1. Admissibility in particular cases

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 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).

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).

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).

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).

2. Miscellaneous

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).

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).

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).

Under this section, all relevant evidence is admissible unless there is some specific constitutional or statutory reason to exclude such evidence. Furstenfeld v. Pepin, 23 Neb. App. 155, 869 N.W.2d 353 (2015).