Nebraska Revised Statute 27-404

Chapter 27 Section 404

27-404.

Rule 404. Character evidence; not admissible to prove conduct; exceptions; evidence of other crimes, wrongs, or acts; standard of proof; sexual assault; provisions applicable.

(1) Evidence of a person's character or a trait of his or her character is not admissible for the purpose of proving that he or she acted in conformity therewith on a particular occasion, except:

(a) Evidence of a pertinent trait of his or her character offered by an accused, or by the prosecution to rebut the same;

(b) Evidence of a pertinent trait of character of the victim of the crime offered by an accused or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor. In a sexual assault case, reputation, opinion, or other evidence of past sexual behavior of the victim is governed by section 27-412; or

(c) Evidence of the character of a witness as provided in sections 27-607 to 27-609.

(2) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(3) When such evidence is admissible pursuant to this section, in criminal cases evidence of other crimes, wrongs, or acts of the accused may be offered in evidence by the prosecution if the prosecution proves to the court by clear and convincing evidence that the accused committed the crime, wrong, or act. Such proof shall first be made outside the presence of any jury.

(4) Regarding the admissibility in a civil or criminal action of evidence of a person's commission of another offense or offenses of sexual assault under sections 28-319 to 28-322.04, see sections 27-413 to 27-415.

Source

Annotations

  • 1. Character evidence

  • 2. Prior bad act evidence

  • 3. Probative value determination

  • 4. Effect of remoteness

  • 5. Miscellaneous

  • 1. Character evidence

  • Although subsection (1)(a) of this section allows the accused to offer evidence of a pertinent trait of his or her character and allows the prosecution to rebut that evidence, section 27-405 limits the manner in which the evidence may be admitted. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).

  • Subsections (a) and (b) of this section are mutually exclusive. When an accused couples a claim of self-defense with evidence that the victim was the first aggressor, the accused does not interject the issue of the accused's character. State v. Jackson, 258 Neb. 24, 601 N.W.2d 741 (1999).

  • Under subsection (1)(a) of this section, evidence of the character trait of honesty is admissible in a prosecution for bribery and conspiracy to commit bribery. State v. Vogel, 247 Neb. 209, 526 N.W.2d 80 (1995).

  • Where a defendant claims that the act of killing a victim was the result of a violent and overriding reaction to a homosexual approach by the victim, evidence of the victim's prior similar homosexual activities may be admissible under certain circumstances as corroborative of the defendant's claim that there was a lack of deliberation or premeditated malice on his or her part necessary to convict of first degree murder. State v. Escamilla, 245 Neb. 13, 511 N.W.2d 58 (1994).

  • Evidence of a murder victim's homosexuality may be admissible as corroborative of a defendant's claim of self-defense from a homosexual assault, provided such evidence as tendered is probative of that defense. State v. Lowe, 244 Neb. 173, 505 N.W.2d 662 (1993).

  • The trial court did not err in admitting evidence implying a romantic relationship between defendant and the female host of a party at which defendant broke the jaw of another man to rebut defendant's claimed motive of self-defense. State v. Stueben, 240 Neb. 170, 481 N.W.2d 178 (1992).

  • Subsection (1)(b) of this section allows the accused in a criminal case to offer evidence of a pertinent trait of character of the victim of the crime for the purpose of proving the victim acted in conformity therewith on a particular occasion. State v. Lewchuk, 4 Neb. App. 165, 539 N.W.2d 847 (1995).

  • 2. Prior bad act evidence

  • Evidence that in the weeks before a shooting, the defendant in a murder case threatened the shooting victims several times was inextricably intertwined with the shooting and not subject to this section. State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).

  • The evidence of a charge of sexual assault of a child and of charges of child abuse was not inextricably intertwined. Had the charge of first degree sexual assault of a child been tried separately from the four counts of child abuse, subsection (2) of this section would have prevented evidence of child abuse from being presented in a trial for sexual assault of a child and would have prevented evidence of sexual assault of a child from being presented in a trial for child abuse. Defense counsel was ineffective for failing to oppose joinder of the charges. State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013).

  • When the defendant was tried for first degree sexual assault of a child and child abuse in the same trial, counsel was ineffective for failing to request limiting instructions based on subsection (2) of this section limiting evidence of sexual assault to the sexual assault charge and evidence of child abuse to the child abuse charges. State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013).

  • Photographs of the defendant and others with guns taken near the time of a driveby shooting were intrinsic evidence corroborating testimony that the defendant had access to and was in possession of a .22-caliber rifle and were not inadmissible under subsection (2) of this section. State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013).

  • Evidence of previous drug sales in which the buyer reached the defendant at the same telephone number, the defendant always used the same "street code" to arrange crack cocaine sales, the defendant directed the buyer to a location, and the defendant personally delivered crack cocaine was admissible to show identity under subsection (2) of this section. The prior acts were overwhelmingly similar to the crime charged, bore the same signature, and were independently relevant, and because a person other than the defendant delivered the crack cocaine, the identity of the perpetrator was at issue. The prior sales were inadmissible to show motive and intent; they were only relevant to motive on the logic the defendant had sold cocaine before and therefore did so again, and intent was not at issue. State v. Payne-McCoy, 284 Neb. 302, 818 N.W.2d 608 (2012).

  • Under subsection (3) of this section, an appellate court will affirm a trial court's ruling that the defendant committed an uncharged extrinsic crime or bad act if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found with a firm conviction the essential elements of the uncharged crime. State v. Kofoed, 283 Neb. 767, 817 N.W.2d 225 (2012).

  • Evidence of prior crimes was not so similar, unusual, or distinctive so as to support its independent relevance on the issue of identity and was inadmissible. State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).

  • Pursuant to subsection (2) of this section, where there are an overwhelming number of significant similarities between the other crime and the charged offense or offenses, the evidence of the other crime may be admitted, and any dissimilarities merely go to the weight of the evidence. State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).

  • Subsection (2) of this section prohibits the admissibility of relevant evidence for the purpose of proving the character of a person in order to show that he or she acted in conformity therewith; or, stated another way, the rule prohibits the admission of other bad acts evidence for the purpose of demonstrating a person's propensity to act in a certain manner. State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011).

  • Bad acts that form the factual setting of the crime in issue or that form an integral part of the crime charged are not subject to this section. State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010).

  • Evidence of a plaintiff's prior bad acts may be admitted, pursuant to subsection (2) of this section, where it rebuts the plaintiff's evidence of damages. Sturzenegger v. Father Flanagan's Boys' Home, 276 Neb. 327, 754 N.W.2d 406 (2008).

  • Evidence of prior bad acts which is relevant for any purpose other than to show the actor's propensity is admissible under subsection (2) of this section. Evidence that is offered for a proper purpose is often referred to as having "special" or "independent relevance," which means its relevance does not depend on its tendency to show propensity. Sturzenegger v. Father Flanagan's Boys' Home, 276 Neb. 327, 754 N.W.2d 406 (2008).

  • Bad acts that form the factual setting of the crime in issue or that form an integral part of the crime charged are not covered under subsection (2) of this section. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).

  • Where evidence of other crimes is so blended or connected with the ones on trial so that proof of one incidentally involves the others, or explains the circumstances, or tends logically to prove any element of the crime charged, it is admissible as an integral part of the immediate context of the crime charged. When the other crimes evidence is so integrated, it is not extrinsic and therefore not governed by this section. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).

  • Bad acts that form the factual setting of the crime in issue or that form an integral part of the crime charged are not part of the coverage under Neb. Evid. R. 404(2), subsection (2) of this section. State v. Wisinski, 268 Neb. 778, 688 N.W.2d 586 (2004).

  • This section specifically prohibits the admission of other bad acts evidence for the purpose of demonstrating a person's propensity to act in a certain manner. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).

  • Pursuant to subsection (2) of this section, evidence admitted did not constitute Neb. Evid. R. 404 evidence of prior bad acts. The evidence introduced was part of the factual setting of the crime. State v. Aguilar, 264 Neb. 899, 652 N.W.2d 894 (2002).

  • Where uncharged misconduct is not evidence of prior bad acts, this section does not apply. State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002).

  • The defendant's statements to neighbors and coworkers prior to the murder that he wanted to hurt or kill the victim do not constitute prior bad act evidence. State v. Canbaz, 259 Neb. 583, 611 N.W.2d 395 (2000).

  • Pursuant to subsection (2) of this section, this is a rule of inclusion rather than exclusion. Pursuant to subsection (2) of this section, the evidence of other crimes need not be identical to the act charged to be admissible. State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997).

  • The mere fact a criminal defendant has been charged with previous crimes is not legal evidence of other crimes, wrongs, or acts, let alone clear and convincing evidence that the accused committed the alleged crimes, wrongs, or acts. State v. McBride, 250 Neb. 636, 550 N.W.2d 659 (1996).

  • Subsection (2) of this section is an inclusionary rule permitting the use of relevant, specific acts for all purposes except to prove character of a person in order to show that such person acted in conformity with character. State v. Perrigo, 244 Neb. 990, 510 N.W.2d 304 (1994); State v. Kenny, 224 Neb. 638, 399 N.W.2d 821 (1987); State v. Robb, 224 Neb. 14, 395 N.W.2d 534 (1986); State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985); State v. Craig, 219 Neb. 70, 361 N.W.2d 206 (1985).

  • Subsection (2) of this section is an inclusionary rule permitting the use of relevant other crimes, wrongs, or acts for all purposes except to prove character of a person in order to show that such a person acted in conformity with that character; it may be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in determining the accused's guilt of the offense in question. State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993); State v. Kern, 224 Neb. 177, 397 N.W.2d 23 (1986).

  • Under subsection (2) of this section, the acts of a third person are irrelevant and inadmissible for proof of motive or intent of an actor. The "other crimes, wrongs, or acts" must be those of the accused. State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993).

  • In prosecution for incest, testimony of both the victim and her brother was relevant and material to prove opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake, all legitimate purposes for admitting testimony of prior bad acts. State v. Martin, 242 Neb. 116, 493 N.W.2d 191 (1992).

  • Subsection (2) of this section is an inclusionary rule permitting the use of uncharged misconduct evidence if the evidence is relevant for any purpose other than to show a defendant's propensity or disposition to commit the crime charged. State v. Hernandez, 242 Neb. 78, 493 N.W.2d 181 (1992).

  • It is firmly established that subsection (2) of this section is a rule of inclusion which permits the use of relevant other crimes, wrongs, or acts for all purposes except to prove the character of a person in order to show that such person acted in conformity with that character. State v. Styskal, 242 Neb. 26, 495 N.W.2d 313 (1992); State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).

  • Subsection (2) of this section permits evidence of other crimes, wrongs, or acts if such is relevant for a purpose other than to show a defendant's propensity or disposition to commit the crime charged. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992); State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990); State v. Methe, 228 Neb. 468, 422 N.W.2d 803 (1988).

  • Evidence of other crimes is not admissible unless there is sufficient evidence that the crimes were actually committed and that defendant committed them to warrant submission to a jury if the other crimes had been charged. State v. Timmerman, 240 Neb. 74, 480 N.W.2d 411 (1992).

  • Under subsection (2) of this section, prior transactions involving defendant's acceptance of stolen property in exchange for drugs are relevant and admissible to establish defendant's knowledge that the property which is the subject of the prosecution is, in fact, stolen. State v. Messersmith, 238 Neb. 924, 473 N.W.2d 83 (1991).

  • In prosecution for first degree sexual assault of defendant's infant granddaughter, evidence of similar sexual conduct with stepdaughter 27 years earlier under extremely similar circumstances held admissible to show absence of mistake or accident. State v. Stephens, 237 Neb. 551, 466 N.W.2d 781 (1991).

  • Subsection (2) of this section allows the admission of evidence of other crimes, wrongs, or acts for the purpose of establishing identity or a particular method of operation. State v. Evans, 235 Neb. 575, 456 N.W.2d 739 (1990).

  • Under subsection (2) of this section, evidence of other criminal acts which involve or explain the circumstances of the crime charged, or are integral parts of an overall occurrence, may be admissible. It is competent for the prosecution to put in evidence all relevant facts and circumstances which tend to establish any of the constituent elements of the crime with which the accused is charged, even though such facts and circumstances may prove or tend to prove that the defendant committed other crimes. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).

  • It is well established that subsection (2) of this section is an inclusionary rule permitting the use of relevant evidence of other crimes, wrongs, or acts for purposes other than to prove the character of a person in order to show that such person acted in conformity with that character. Thus, this section permits evidence of other crimes, wrongs, or acts if such is relevant for a purpose other than to show defendant's propensity or disposition to commit the crime charged. State v. Donhauser, 231 Neb. 114, 435 N.W.2d 186 (1989); State v. Stewart, 219 Neb. 347, 363 N.W.2d 368 (1985).

  • Evidence of prior bad acts is an attempt to show character contrary to subsection (1) of this section. State v. Lenz, 227 Neb. 692, 419 N.W.2d 670 (1988).

  • Subsection (2) of this section is an inclusionary rule of evidence permitting the use of relevant other crimes, wrongs, or acts for the purposes enumerated. Evidence of prior uncharged sexual assault was admissible to show location, scheme, plan, and motive. State v. Nesbitt, 226 Neb. 32, 409 N.W.2d 314 (1987).

  • This section is an inclusionary rule which permits the use of relevant other crimes, wrongs, or acts if such is relevant for any purpose other than to show defendant's propensity or disposition to commit the crime charged. Certain tape-recorded statements were admissible to show why witness failed to promptly report her accusations against the defendant. State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).

  • Under this section, a defendant's attempted intimidation or intimidation of a State's informant or witness is relevant evidence concerning the defendant's conscious guilt that a crime has been committed, and is a circumstance from which an inference may be drawn that the defendant is guilty of the crime charged. State v. Clancy, 224 Neb. 492, 398 N.W.2d 710 (1987).

  • The admissibility of evidence of other crimes lies largely within the discretion of the trial court. State v. Baker, 218 Neb. 207, 352 N.W.2d 894 (1984).

  • Evidence that the defendant was previously involved in a marijuana harvesting scheme is not admissible to prove a later, unconnected, possession charge. State v. Coca, 216 Neb. 76, 341 N.W.2d 606 (1983).

  • Past patterns of behavior are admissible in cases involving termination of parental rights, when relevant to motive, opportunity, intent, preparation, plan, knowledge, and absence of mistake or accident. In re Interest of Hollenbeck, 212 Neb. 253, 322 N.W.2d 635 (1982).

  • In trial on charges of assault where knife was used in assault, evidence that defendant had earlier the same day struck someone with his fists was not admissible under this section since it did not tend to prove intent, motive, opportunity, preparation, plan, knowledge, identity, or absence of mistake or accident as to assault with knife. State v. Stewart, 209 Neb. 719, 310 N.W.2d 706 (1981).

  • Evidence of prior shotgun assault of intended victim's family clearly admissible under this section. State v. Harper, 208 Neb. 568, 304 N.W.2d 663 (1981).

  • Evidence of prior criminal acts was admissible to explain the circumstances of the crime charged, to explain the failure of the victim to make a prompt complaint, and to show a continuous pattern of sexual conduct by the defendant toward both his sons. State v. Hitt, 207 Neb. 746, 301 N.W.2d 96 (1981).

  • Evidence of prior similar offenses properly received in a nonjury child abuse action where an element of the crime involved motive and criminal intent. State v. Morosin, 200 Neb. 62, 262 N.W.2d 194 (1978).

  • Evidence of bank account shortages admissible to prove intent in forgery conviction. State v. Metzger, 199 Neb. 186, 256 N.W.2d 691 (1977).

  • Insufficient funds checks evidencing crimes other than one defendant charged with were admissible to show guilty knowledge and course of conduct. State v. Costello, 199 Neb. 43, 256 N.W.2d 97 (1977).

  • Evidence of defendant's prior conviction held admissible to confirm identity, motive, and method of operation. State v. Moore, 197 Neb. 294, 249 N.W.2d 200 (1976).

  • Evidence of other bad acts falls into two categories under subsection (2) of this section, according to the basis of the relevance of the acts: (1) evidence which is relevant only to show propensity, which is not admissible, and (2) otherwise relevant (nonpropensity) evidence, which is admissible. State v. Sutton, 16 Neb. App. 185, 741 N.W.2d 713 (2007).

  • Evidence of other crimes which is relevant for any purpose other than to show the actor's propensity is admissible under subsection (2) of this section. State v. Sutton, 16 Neb. App. 185, 741 N.W.2d 713 (2007).

  • Subsection (2) of this section prohibits the admission of evidence of other bad acts for the purpose of demonstrating a person's propensity to act in a certain manner. State v. Sutton, 16 Neb. App. 185, 741 N.W.2d 713 (2007).

  • The admissibility of evidence under subsection (2) of this section must be determined upon the facts of each case and is within the discretion of the trial court. State v. Sutton, 16 Neb. App. 185, 741 N.W.2d 713 (2007).

  • Pursuant to subsection (2) of this section, an absolute identity in every detail is not required for evidence of other bad acts to be admissible under this section for the proper purpose of establishing identity, and the question is whether the acts are so similar, unusual, and distinctive that it could reasonably be found that they bear the same signature. State v. Bockman, 11 Neb. App. 273, 648 N.W.2d 786 (2002).

  • Prior conduct which is inextricably intertwined with the charged crime is not considered extrinsic evidence of other crimes or bad acts and is not rendered inadmissable by this section. State v. Powers, 10 Neb. App. 256, 634 N.W.2d 1 (2001).

  • Pursuant to subsection (2) of this section, proof of a signature of a crime from other bad acts is a proper purpose. State v. Gray, 8 Neb. App. 973, 606 N.W.2d 478 (2000).

  • In a defendant's trial for sexual assault of a minor, evidence of the defendant's physical violence against the family was admissible under subsection (2) of this section because the evidence explained why the victim failed to report the defendant's abuse. State v. Egger, 8 Neb. App. 740, 601 N.W.2d 785 (1999).

  • Pursuant to subsection (2) of this section, identity means a particular method of operation or little more than the logical conclusion which flows from other crimes evidence advanced in proof of plan, design, scheme, or modus operandi. State v. Wade, 7 Neb. App. 169, 581 N.W.2d 906 (1998).

  • The Nebraska Evidence Rules apply at a hearing conducted pursuant to subsection (3) of this section, and a criminal defendant is entitled to a full evidentiary hearing on the admissibility of prior bad acts evidence under subsection (3) of this section. State v. Wilson, 5 Neb. App. 125, 556 N.W.2d 643 (1996).

  • Pursuant to subsection (2) of this section, an accused may offer evidence of prior crimes, wrongs, or acts of a third party for a purpose other than proving the propensity of the person to commit the crime charged. State v. Gardner, 1 Neb. App. 450, 498 N.W.2d 605 (1993).

  • Under subsection (2) of this section, evidence regarding defendant's past drug dealings with informant was admissible to show knowledge and intent of defendant to commit the crime charged. State v. Benitez, 1 Neb. App. 310, 493 N.W.2d 353 (1992).

  • 3. Probative value determination

  • Pursuant to subsection (2) of this section, the probative value of evidence of a prior shooting by the defendant was substantially outweighed by its prejudice when the shooting was an isolated act occurring 29 days before the present alleged crime and a jury acquitted the defendant of committing the shooting. State v. Kirksey, 254 Neb. 162, 575 N.W.2d 377 (1998).

  • Pursuant to subsection (2) of this section, evidence of other crimes, wrongs, or acts may be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in determining the accused's guilt of the offense in question. State v. Buechler, 253 Neb. 727, 572 N.W.2d 65 (1998).

  • 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. Subsection (2) of this section is subject to the overriding protection of section 27-403. State v. Perrigo, 244 Neb. 990, 510 N.W.2d 304 (1994).

  • In reviewing the admission of prior acts, the reviewing court should consider the relevance of the evidence, the purpose for its introduction, and the probative value balanced against its potential for unfair prejudice. State v. Farrell, 242 Neb. 877, 497 N.W.2d 17 (1993).

  • Where a police officer testified to an informant's drug purchase from a third party who went to defendant's home prior to completion of the transaction, the potential for unfair prejudice outweighs its probative value. However, the erroneously admitted evidence was cumulative and harmless beyond a reasonable doubt where there was other properly admitted evidence showing intent to deliver cocaine in accord with the circumstantial evidence of past delivery. State v. Hernandez, 242 Neb. 78, 493 N.W.2d 181 (1992).

  • Evidence admissible under subsection (2) of this section is limited by section 27-403, which provides for the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of, among other things, unfair prejudice. For purposes of subsection (2) of this section, it is sufficient that the evidence be of similar involvement reasonably related to the charged conduct and be presented in a manner in which prejudice does not outweigh its probative value. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).

  • Under subsection (2) of this section, evidence of prior acts is admissible if relevant unless it is unfairly prejudicial in the sense that it tends to make the conviction of the defendant more probable for an incorrect reason. State v. Christian, 237 Neb. 294, 465 N.W.2d 756 (1991).

  • In reviewing the actions of a trial court in admitting evidence of other crimes under subsection (2) of this section to determine if there was unfair prejudice in the admission of the evidence, an appellate court considers (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted. State v. Yager, 236 Neb. 481, 461 N.W.2d 741 (1990); State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990); State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989); State v. Doremus, 2 Neb. App. 784, 514 N.W.2d 649 (1994).

  • Under subsection (2) of this section, evidence of other crimes, wrongs, or acts may be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in determining the accused's guilt of the offense in question. State v. Ruyle, 234 Neb. 760, 452 N.W.2d 734 (1990).

  • This section is subject to the overriding protections of section 27-403. 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).

  • Subsection (2) of this section is subject to the overriding protection of section 27-403 which states that evidence of other acts must be excluded if, among other things, the probative value of the evidence of other acts is substantially outweighed by the danger of unfair prejudice to the defendant. State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985).

  • 4. Effect of remoteness

  • Pursuant to subsection (2) of this section, while remoteness in time may weaken the value of prior bad acts evidence, such remoteness does not, in and of itself, necessarily justify exclusion of that evidence. State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).

  • The question of remoteness in time for the purposes of subsection (2) of this section is a matter within the discretion of the trial court. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992); State v. Keithley, 218 Neb. 707, 358 N.W.2d 761 (1984).

  • The question of whether evidence of other conduct otherwise admissible under the provisions of subsection (2) of this section is too remote in time is largely within the discretion of the trial court. While remoteness in time may weaken the value of the evidence, such remoteness does not, in and of itself, necessarily justify exclusion of the evidence. Remoteness, or the temporal span between a prior crime, wrong, or other act offered as evidence, goes to the weight to be given to such evidence and does not render the evidence of the other crime, wrong, or act irrelevant and inadmissible. State v. Yager, 236 Neb. 481, 461 N.W.2d 741 (1990); State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (1989); State v. Rincker, 228 Neb. 522, 423 N.W.2d 434 (1988).

  • The admissibility of evidence concerning other conduct under subsection (2) of this section must be determined upon the facts of each case; no exact limitation of time can be fixed as to when other conduct tending to prove intent to commit the offense charged is remote. State v. Rincker, 228 Neb. 522, 423 N.W.2d 434 (1988).

  • 5. Miscellaneous

  • Intrinsic evidence, or evidence necessary to tell a complete story of the crime, is admissible to provide the context in which the crime occurred. State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).

  • Evidence can be properly admitted to explain the victim's failure to make a prompt complaint. State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010).

  • The term "pertinent" as used within the context of subsection (1)(b) of this section is synonymous with the term "relevant" as used in section 27-401. State v. Floyd, 277 Neb. 502, 763 N.W.2d 91 (2009).

  • Whether subsection (2) of this section or section 27-608(2) applies to the admissibility of other-acts evidence depends on the purpose for which the proponent introduced the other-acts evidence. Subsection (2) of this section applies when extrinsic evidence is offered as relevant to a material issue in the case. Section 27-608(2) applies when extrinsic evidence is offered to impeach a witness, to show the character of the witness for untruthfulness— in other words, where the only theory of relevance is impeachment by prior misconduct. So, because section 27-608(2) affects only evidence of prior instances of conduct when properly relevant solely for the purpose of attacking or supporting a witness' credibility, it in no way affects the admission of evidence of such prior acts for other purposes under subsection (2) of this section. Sturzenegger v. Father Flanagan's Boys' Home, 276 Neb. 327, 754 N.W.2d 406 (2008).

  • In a prosecution for child abuse, evidence of previous abuse of a child is admissible to show absence of accident only if the state shows by a preponderance of the evidence that there is a connection between the defendant and the child's injuries. State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007).

  • In a murder trial, evidence of the defendant's returning from a city and of a vehicle the defendant drove being burned in a field in that city was intrinsic to the crimes for which he was charged. Accordingly, the trial court did not err in admitting this evidence without first conducting a hearing pursuant to this section. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).

  • Intent was not a fact of consequence and therefore cannot provide a basis for independent relevance of the other crimes evidence. Opportunity was not a fact of consequence and therefore cannot provide a basis for independent relevance of the other crimes evidence. No logical reason was articulated as to why motive was a fact of consequence, and therefore, motive cannot provide a basis for independent relevance of the other crimes evidence. While identity was a fact of consequence, evidence of identity lacked probative value and thus could not be admitted for a proper purpose. State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).

  • Pursuant to subsection (2) of this section, the admissibility of other crimes evidence must be determined upon the facts of each case and is within the discretion of the trial court. Clear and convincing evidence that the accused committed the crime is presented when there is sufficient evidence to warrant submission to a trier of fact if the accused had been charged with the crimes. Subsection (2) of this section considers whether the (1) evidence was relevant for some purpose other than to prove the character of a person to show that he or she acted in conformity therewith, (2) probative value of the evidence is substantially outweighed by its potential for unfair prejudice, and (3) trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted. Henceforth, the proponent of evidence offered pursuant to subsection (2) of this section shall, upon objection to its admissibility, be required to state on the record the specific purpose or purposes for which the evidence is being offered and that the trial court shall similarly state the purpose or purposes for which such evidence is received. A limiting instruction given upon receipt of prior bad acts evidence shall state the purpose or purposes for which such evidence was received. State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).

  • Pursuant to subsection (3) of this section, because it was the victim's report, not the occurrence or nonoccurrence of the claimed events which provided the motive, a separate rule 404(3) hearing had no application. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).

  • Evidence admissible under subsection (2) of this section may be excluded under section 27-403 if its probative value is substantially outweighed by other considerations. This section is a rule of inclusion, rather than exclusion, and permits the use of relevant bad acts for all purposes except to prove the character of a person to show that the person acted in conformity with that character. The admission of evidence of other acts under subsection (2) of this section is reviewed by considering whether the evidence was relevant, whether the evidence had a purpose, whether the probative value of the evidence outweighed its potential for unfair prejudice, and whether the trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted. State v. Carter, 246 Neb. 953, 524 N.W.2d 763 (1994).

  • The purposes set forth in subsection (2) of this section are illustrative only and not intended to be exhaustive or mutually exclusive. State v. Perrigo, 244 Neb. 990, 510 N.W.2d 304 (1994).

  • In prosecution for possession of cocaine and methamphetamine, evidence as to whether defendant had ever used cocaine is improper. State v. Friend, 230 Neb. 765, 433 N.W.2d 512 (1988).

  • In order to preserve an objection to the admission of evidence under subsection (2) of this section, an objection must be made at the time the evidence is offered. State v. Blair, 227 Neb. 742, 419 N.W.2d 868 (1988).

  • Evidence of conviction of a crime is, in some respects, more limited than under former section, but is not restricted to felonies as such. State v. Lang, 197 Neb. 47, 246 N.W.2d 608 (1976).

  • An appellate court's analysis under subsection (2) of this section considers (1) whether the evidence was relevant for some purpose other than to prove the character of a person to show that he or she acted in conformity therewith, (2) whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice, and (3) whether the trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted. State v. Sutton, 16 Neb. App. 185, 741 N.W.2d 713 (2007).

  • A trial court is under no obligation to make express findings in rulings pursuant to this section. State v. Dreimanis, 8 Neb. App. 362, 593 N.W.2d 750 (1999).

  • This section does not prohibit the mention of prior convictions. State v. Dreimanis, 8 Neb. App. 362, 593 N.W.2d 750 (1999).

  • To determine if there was unfair prejudice in admitting evidence of other crimes under this section, an appellate court considers (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted. State v. Dreimanis, 8 Neb. App. 362, 593 N.W.2d 750 (1999).

  • An appellate court reviews the admission of other acts under subsection (2) of this section by considering (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted. State v. Wade, 7 Neb. App. 169, 581 N.W.2d 906 (1998).

  • Subsection (2) of this section is a rule of inclusion, rather than exclusion, and it permits the use of evidence of prior activity except to prove the character of a person in order to show that the person acted in conformity with that character. State v. Wade, 7 Neb. App. 169, 581 N.W.2d 906 (1998).