27-606. Rule 606. Competency of juror as witness; at the trial; inquiry into the validity of verdict or indictment.

(1) A member of the jury may not testify as a witness before that jury in the trial of the case in which he is sitting as a juror. If he is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

(2) Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him indicating an effect of this kind be received for these purposes.

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Annotations

1. Scope

2. Juror testimony permitted

3. Juror testimony not permitted

4. Miscellaneous

1. Scope

Subsection (2) of this section does not allow a juror's affidavit to impeach a verdict on the basis of jury motives, methods, misunderstanding, thought processes, or discussions during deliberations. State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002).

Subsection (2) of this section provides two exceptions to the general prohibition against juror testimony regarding any effect on the juror's mental state. A juror may testify regarding (1) whether extraneous prejudicial information was brought to the jury's attention or (2) whether any outside influence was improperly brought to bear upon any juror. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).

Subsection (2) of this section prohibits admission of a juror's affidavit to impeach a verdict on the basis of the jury's motives, methods, misunderstanding, thought processes, or discussions during deliberations which enter into the verdict. Kopecky v. National Farms, Inc., 244 Neb. 846, 510 N.W.2d 41 (1994).

Subsection (2) of this section prohibits inquiry into a jury's votes. State v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993).

Under the provisions of subsection (2) of this section, a juror may testify as to whether "extraneous prejudicial information was improperly brought" to his or her attention, but no evidence may be received as to the effect of any statement upon a juror's mind, its influence one way or another, or the mental processes of a juror in connection therewith. State v. McDonald, 230 Neb. 85, 430 N.W.2d 282 (1988); Simants v. State, 202 Neb. 828, 277 N.W.2d 217 (1979).

Subsection (2) of this section controls inquiries into the validity of a verdict reached by a jury. State v. Roberts, 227 Neb. 489, 418 N.W.2d 246 (1988).

Juror's misconduct does not irrebuttably presume prejudice; this section inquires into validity of verdict when extraneous prejudicial information may have been brought to jury's attention. Ellis v. Far-Mar-Co, 215 Neb. 736, 340 N.W.2d 423 (1983).

When polling the jury, the trial court is not required to go beyond the procedure specified in section 25-1124 by inquiring into the basis for the jury's determination of the percentage of a party's negligence, because such inquiry would invade the province of the jury. Anis v. BryanLGH Health System, 14 Neb. App. 372, 707 N.W.2d 60 (2005).

2. Juror testimony permitted

At hearing on motion for new trial, affidavits of jurors were admissible only to show that presubmission discussions took place over 5 days of 7-day trial. Other comments in the affidavits were inadmissible. Hunt v. Methodist Hospital, 240 Neb. 838, 485 N.W.2d 737 (1992).

Subsection (2) of this section does not bar the use of a juror affidavit to establish that a jury made a transpositional error in completing verdict forms in the consolidated trial of cases against multiple defendants. Harmon Cable Communications v. Scope Cable Television, 237 Neb. 871, 468 N.W.2d 350 (1991).

Subsection (2) of this section permits use of a juror's affidavit to establish that the jury considered prejudicial information emanating from a source other than evidence presented at trial. Zeeb v. Delicious Foods, 231 Neb. 358, 436 N.W.2d 190 (1989); Rahmig v. Mosley Machinery Co., 226 Neb. 423, 412 N.W.2d 56 (1987).

3. Juror testimony not permitted

Juror affidavits cannot be used for the purpose of showing a juror was confused. Facilities Cost Mgmt. Group v. Otoe Cty. Sch. Dist., 298 Neb. 777, 906 N.W.2d 1 (2018).

A trial court's duty to hold an evidentiary hearing on a substantiated allegation of jury misconduct does not extend into matters which are barred from inquiry under subsection (2) of this section. State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).

A juror who failed to disclose during voir dire that he had an uncle who had been murdered did not bring in extraneous information. Juror statement asserting that the jury did not follow instructions during deliberations was properly excluded under subsection (2) of this section because it did not involve extraneous information. State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002).

A juror's intradeliberational statements, when based on personal knowledge not directly related to the litigation at issue, do not constitute extraneous information within the meaning of subsection (2) of this section. Leavitt ex rel. Leavitt v. Magid, 257 Neb. 440, 598 N.W.2d 722 (1999).

Under subsection (2) of this section, juror's intradeliberational statements, when based on juror's personal knowledge not directly related to the litigation at issue, do not constitute "extraneous" information. Under subsection (2) of this section, juror's statements regarding experiences with inflated insurance claims and the juror's cousin's accident were not "extraneous" information. Information that has been excluded from jury consideration by a motion to strike does not constitute "extraneous" information under subsection (2) of this section. Nichols v. Busse, 243 Neb. 811, 503 N.W.2d 173 (1993).

While pursuant to subsection (2) of this section a juror's affidavit may be used to show that in reaching its verdict the jury considered prejudicial information emanating from a source other than the evidence presented at trial, such an affidavit may not be used to show a jury's misunderstanding of the law as such misunderstanding inheres in the verdict. State v. Meyer, 236 Neb. 253, 460 N.W.2d 656 (1990).

This section prohibits a juror's affidavit to impeach a verdict on the basis of jury motives, methods, misunderstandings, thought processes, or discussions during deliberations, which enter into the verdict. Rahmig v. Mosley Machinery Co., 226 Neb. 423, 412 N.W.2d 56 (1987).

A juror's understanding of the instructions constitutes neither extraneous, prejudicial information nor outside influence improperly brought to the jury's attention. In re Estate of Haddix, 211 Neb. 814, 320 N.W.2d 745 (1982).

The trial court properly refused to admit affidavits of jurors dealing with their understanding of their instructions or the way they reached their verdict. Such matters inhere in the verdict and the proffered testimony is inadmissible under this section. Lambertus v. Buckley, 206 Neb. 440, 293 N.W.2d 110 (1980).

4. Miscellaneous

The jury's consideration of a defendant's failure to testify is barred from inquiry under subsection (2) of this section. State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).

Because there is no constitutional right to obtain information about a jury's deliberations, a court's discretion under section 25-1635 to disclose juror information for good cause shown after a verdict should be tempered by the restrictions imposed under subsection (2) of this section. Golnick v. Callender, 290 Neb. 395, 860 N.W.2d 180 (2015).

A juror's knowledge about the burden of proof is personal knowledge that is not directly related to the litigation at issue and is not extraneous information. Malchow v. Doyle, 275 Neb. 530, 748 N.W.2d 28 (2008).

In the absence of a timely objection pursuant to subsection (2) of this section, a court may apply the rule sua sponte. State v. Williams, 253 Neb. 111, 568 N.W.2d 246 (1997).

Under subsection (2) of this section, extraneous material or information considered by a jury may be deemed prejudicial without proof of actual prejudice if the material or information relates to an issue submitted to the jury and there is a reasonable possibility that the extraneous material or information affected the verdict to the detriment of a litigant. Loving v. Baker's Supermarkets, 238 Neb. 727, 472 N.W.2d 695 (1991).

The defendant bears the burden of proving jury misconduct, and the inability to inquire as to how evidence affected a juror's mind does not require that the burden be shifted to the state as the defendant may inquire as to whether any extraneous prejudicial information was improperly brought to the attention of the jury. State v. Woodward, 210 Neb. 740, 316 N.W.2d 759 (1982).