25-1116. Instructions after retirement.

After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed as to any part of the law arising in the case, they may request the officer to conduct them to the court where the information upon the point of law shall be given, and the court may give its recollection as to the testimony on the point in dispute in the presence of or after notice to the parties or their counsel.

Source

Annotations

1. Testimony or instructions

2. Presence of parties or counsel

3. Miscellaneous

1. Testimony or instructions

Heightened procedures are required when a court considers a jury’s request under this section to rehear testimony that was presented in the form of an audio or video recording. State v. Vandever, 287 Neb. 807, 844 N.W.2d 783 (2014).

“Testimony” for purposes of this section encompasses evidence authorized as “testimony” under section 25-1240, that is, as live testimony at trial by oral examination or by some substitute for live testimony, including but not limited to, affidavit, deposition, or video recording of an examination conducted prior to the time of trial for use at trial. State v. Vandever, 287 Neb. 807, 844 N.W.2d 783 (2014).

Reading by court reporter of portions testimony requested was compliance with statute. Graves v. Bednar, 171 Neb. 499, 107 N.W.2d 12 (1960).

Court may permit reading of testimony by official court reporter. Shiers v. Cowgill, 157 Neb. 265, 59 N.W.2d 407 (1953).

If trial judge substantially misstates the testimony in giving his recollection, it is error, but to predicate error on failure to make a complete statement, request should be made for a further or fuller statement. Barton v. Shull, 70 Neb. 324, 97 N.W. 292 (1903).

At request of jury, court may give its recollection of evidence; if misstated, it is error. Official reporter may, at request of jury, and in presence of court read testimony. Darner v. Daggett, 35 Neb. 695, 53 N.W. 608 (1892); Stephens & Roberts v. Patterson, 29 Neb. 697, 46 N.W. 154 (1890).

Trial court on its own motion may recall jury and give additional instruction. Jessen v. Donahue, 4 Neb. Unof. 838, 96 N.W. 639 (1903).

2. Presence of parties or counsel

The failure of the court to notify counsel of a jury's question is reversible error only if prejudice results. Facilities Cost Mgmt. Group v. Otoe Cty. Sch. Dist., 298 Neb. 777, 906 N.W.2d 1 (2018).

If it becomes necessary to give further instructions to the jury during deliberation, the proper practice is to call the jury into open court and to give any additional instructions in writing in the presence of the parties or their counsel. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).

If it becomes necessary to give further instructions to the jury during deliberation, the proper practice is to call the jury into open court and to give any additional instructions in writing in the presence of the parties or their counsel. State v. Jackson, 264 Neb. 420, 648 N.W.2d 282 (2002).

A directive from the court to a deadlocked jury to keep deliberating which is given orally without notice to the parties or their counsel violates section 25-1115 and this section and is improper. State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002).

When it becomes necessary for the court to give further instruction to the jury while it is deliberating, the proper practice is to call the jury into open court and to give any additional instructions in writing in the presence of the parties or their counsel. Nebraska Depository Inst. Guar. Corp. v. Stastny, 243 Neb. 36, 497 N.W.2d 657 (1993).

Although trial court technically violated section by giving written reply to jury's request for definition out of presence of counsel, appellant could not show prejudice and thus error was harmless error. In re Estate of Corbett, 211 Neb. 335, 318 N.W.2d 720 (1982).

The reading by an official court reporter, after the jury has retired for deliberation, of testimony of a witness examined on trial is proper so long as such action is in the presence of or after notice to the parties or their counsel. Bakhit v. Thomsen, 193 Neb. 133, 225 N.W.2d 860 (1975).

Further instructions to or communications with jury after it has retired should be in open court in presence of parties or counsel. Taulborg v. Andresen, 119 Neb. 273, 228 N.W. 528 (1930), 67 A.L.R. 642 (1930).

If a judge delivers to a jury an Allen charge orally and without notice to the parties or their counsel, then the State bears the burden of proving that the defendant was not prejudiced by the improper communication between judge and jury. State v. Owen, 1 Neb. App. 1060, 510 N.W.2d 503 (1993).

3. Miscellaneous

If, in answer to request, further instructions are sent to jury room, record should show consent. Martin v. Martin, 76 Neb. 335, 107 N.W. 580 (1906).