Annotations

• 1. Reversible error

• 2. Not reversible error

• 3. Miscellaneous

• 1. Reversible error

• The basic purpose of this section is to preserve the right to a fair trial by shielding the jury from improper contact by others and restricting the opportunities for improper conduct by jurors during the course of their deliberations. In the absence of express agreement or consent by the defendant, a failure to comply with this section by permitting the jurors to separate after submission of the case is erroneous, creates a rebuttable presumption of prejudice, and places the burden upon the prosecution to show that no injury resulted. State v. Barranco, 278 Neb. 165, 769 N.W.2d 343 (2009).

• Under this section, after submission of a criminal case to the jury, the defendant has the right to have the jury kept together until the jury agrees on a verdict or is discharged by the court, and this right may be waived only by specific agreement or consent of counsel for the parties. In the absence of express agreement or consent by the defendant, a failure to comply with this section by permitting the jurors to separate after submission of the case is erroneous, creates a rebuttable presumption of prejudice, and places the burden upon the prosecution to show that no injury resulted. State v. Bao, 263 Neb. 439, 640 N.W.2d 405 (2002).

• The defendant has a right to have the jury kept together from the submission to it of a criminal case until they agree on a verdict or are discharged by the court. State v. Robbins, 205 Neb. 226, 287 N.W.2d 55 (1980).

• Communication by county attorney to juror was reversible error. Olsen v. State, 113 Neb. 69, 201 N.W. 969 (1925).

• On trial for felony after case has been submitted to jury, it is error to permit court reporter to read testimony of witnesses for prosecution to jury in absence of defendant's counsel. Bartell v. State, 40 Neb. 232, 58 N.W. 716 (1894).

• Use of statute in jury room during deliberation vitiates verdict. Harris v. State, 24 Neb. 803, 40 N.W. 317 (1888).

• Bailiff, by remaining in jury room during time of considering verdict, vitiates verdict. Gandy v. State, 24 Neb. 716, 40 N.W. 302 (1888).

• 2. Not reversible error

• The determination of whether or not a jury should be sequestered during the trial of a criminal case is left to the discretion of the trial court and, absent an abuse of that discretion or evidence of jury tampering or misconduct, that decision will not be reversed on appeal. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).

• The obtaining of affidavits from jurors was an acceptable means of obtaining the necessary facts for a hearing to determine whether there had been improper juror conduct or communication in a criminal trial. State v. Robbins, 207 Neb. 439, 299 N.W.2d 437 (1980).

• The determination of whether or not a jury should be sequestered during recess of a criminal trial rests with the discretion of the trial court and, absent an abuse of that discretion or evidence of jury tampering or misconduct, that decision will not be reversed on appeal. State v. Myers, 205 Neb. 867, 290 N.W.2d 660 (1980).

• Whether or not a jury should be sequestered during the trial of a criminal case is left to the sound discretion of the court. State v. Bautista, 193 Neb. 476, 227 N.W.2d 835 (1975).

• An admonition is not required each time the jury is permitted to separate. Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689 (1951).

• Right to have jury kept together after submission of case may be waived. Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533 (1946).

• Where prosecution adjourned for illness of juror, order overruling defendant's objections after twenty-six day adjournment was not reversible error. Penn v. State, 119 Neb. 95, 227 N.W. 314 (1929).

• Separation of jury during recesses of court while trial is in progress and before final submission and permitting jurors to go home at close of day's service in court is within discretion of court. Wesley v. State, 112 Neb. 360, 199 N.W. 719 (1924).

• Postponement for twenty-one days, after state had made case in chief, permitting jury to separate, was not error where no misconduct of juror is shown. Ossenkop v. State, 86 Neb. 539, 126 N.W. 72 (1910).

• Fact that deputy sheriff was called as witness does not disqualify him from having charge of jury. Van Syoc v. State, 69 Neb. 520, 96 N.W. 266 (1903).

• Objection based on mere inference that jury was allowed to separate, raised for first time in Supreme Court, is unavailing. Coil v. State, 62 Neb. 15, 86 N.W. 925 (1901).

• Where one juror separated from others after submission but no one communicated with him during separation, it was not ground for new trial. Spaulding v. State, 61 Neb. 289, 85 N.W. 80 (1901).

• Assignment of error on ground of separation of jury is not sufficient unless it alleges they were not admonished, or failed to comply with their duty. Langford v. State, 32 Neb. 782, 49 N.W. 766 (1891).

• Separation of jury before submission, known to prisoner and counsel, but not disclosed to judge until after verdict, is not ground for new trial. Polin v. State, 14 Neb. 540, 16 N.W. 898 (1883).

• 3. Miscellaneous

• Prejudice arising from the failure to comply with the requirements of this section does not alter the prejudice analysis required by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015).

• A defendant waives his or her right under this section to have the jury kept together by failing to object to the jury's separation, overruling State v. Robbins, 205 Neb. 226, 287 N.W.2d 55 (1980). State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011).

• Under this section, the defendant has the right to have the jury kept together until the jury agrees on a verdict or is discharged by the court. State v. Barranco, 278 Neb. 165, 769 N.W.2d 343 (2009).

• Although this section states that the bailiff, as the officer having the jury in his or her charge, shall not make "any communication" to jurors except to ask whether they have agreed upon a verdict, some incidental communication between the bailiff and jurors beyond that specified under this section will unavoidably occur. When such communication is limited to simple, practical matters of logistics, such as the location of the facilities used for deliberations, such communication is not likely to be prejudicial to the defendant or deny the defendant a fair trial. But while communications concerning administrative matters may not be prejudicial, when communications involve matters of law, the risk of prejudice is present and communication by the bailiff to jurors on such matters is improper. State v. Floyd, 272 Neb. 898, 725 N.W.2d 817 (2007).