NE Code § 29-2006 (2021)
2021 Nebraska Revised Statutes|Chapter 29 - Criminal Procedure|29-2006 - Challenges for cause.

29-2006.  Challenges for cause.The following shall be good causes for challenge to any person called as a juror or alternate juror, on the trial of any indictment: (1) That he was a member of the grand jury which found the indictment; (2) that he has formed or expressed an opinion as to the guilt or innocence of the accused; Provided, if a juror or alternate juror shall state that he has formed or expressed an opinion as to the guilt or innocence of the accused, the court shall thereupon proceed to examine, on oath, such juror or alternate juror as to the ground of such opinion; and if it shall appear to have been founded upon reading newspaper statements, communications, comments or reports, or upon rumor or hearsay, and not upon conversations with witnesses of the transactions or reading reports of their testimony or hearing them testify, and the juror or alternate juror shall say on oath that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that such juror or alternate juror is impartial and will render such verdict, may, in its discretion, admit such juror or alternate juror as competent to serve in such case; (3) in indictments for an offense the punishment whereof is capital, that his opinions are such as to preclude him from finding the accused guilty of an offense punishable with death; (4) that he is a relation within the fifth degree to the person alleged to be injured or attempted to be injured, or to the person on whose complaint the prosecution was instituted, or to the defendant; (5) that he has served on the petit jury which was sworn in the same cause against the same defendant and which jury either rendered a verdict which was set aside or was discharged, after hearing the evidence; (6) that he has served as a juror in a civil case brought against the defendant for the same act; (7) that he has been in good faith subpoenaed as a witness in the case; (8) that he is a habitual drunkard; (9) the same challenges shall be allowed in criminal prosecutions that are allowed to parties in civil cases.Source   G.S.1873, c. 58, § 468, p. 826;   R.S.1913, § 9109;   C.S.1922, § 10134;   C.S.1929, § 29-2006;   Laws 1933, c. 38, § 3, p. 243;   C.S.Supp.,1941, § 29-2006;   R.S.1943, § 29-2006;  Laws 2015, LB268, § 16;   Referendum 2016, No. 426.   Note: The changes made to section 29-2006 by Laws 2015, LB 268, section 16, have been omitted because of the vote on the referendum at the November 2016 general election. Annotations  1. Capital punishment 2. Opinion of juror 3. Relation to defendant 4. Other grounds 5. Miscellaneous 1. Capital punishment A court cannot determine whether a juror should be challenged for cause in accordance with subsection (3) of this section without advising a juror of the possible punishments and asking the juror his or her opinion on capital punishment. State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010). Subsection (3) of this section allows courts to question jurors about their beliefs regarding the death penalty. State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010). In a capital case, it is entirely permissible to exclude from jury service venirepersons whose views on capital punishment are such as to prevent or substantially impair their ability to impartially apply the law to the evidence. State v. Bradley, 236 Neb. 371, 461 N.W.2d 524 (1990). Pursuant to subsection (3) of this section, it is good cause to challenge one called for jury service in a capital case if his or her opinions are such as to prevent "finding the accused guilty"; thus, the venire may be examined to determine whether any juror has conscientious scruples against capital punishment such as to prevent or substantially impair the performance of his or her duties as a juror. State v. Hankins, 232 Neb. 608, 441 N.W.2d 854 (1989). A venireperson whose views on capital punishment are such as to prevent or substantially impair the performance of his or her duties as a juror may, under this provision, be constitutionally excused from jury service in a capital case. State v. Bird Head, 225 Neb. 822, 408 N.W.2d 309 (1987). A juror who opposes the death penalty may still be eligible to serve as a juror in a capital case as long as such juror is able and does swear to decide guilt or innocence on the evidence and law as given in the jury instructions. A juror who has indicated an inability to fairly and impartially determine guilt by refusing to subordinate his or her own personal views and obey the law of the state must be excused for cause. State v. Benzel, 220 Neb. 466, 370 N.W.2d 501 (1985). If juror has conscientious scruples against inflicting death penalty in murder case, he may be excused on challenge by state. Sharp v. State, 117 Neb. 304, 220 N.W. 292 (1928). Statement of juror, on trial of defendant charged with murder in first degree, that he would not join in verdict of guilty with death penalty, renders him incompetent. Johnson v. State, 88 Neb. 565, 130 N.W. 282 (1911). Right of person charged with capital offense to examine jurors on competency should not be unreasonably obstructed. Wilson v. State, 87 Neb. 638, 128 N.W. 38 (1910). State's attorney may ask juror on examination if he has conscientious scruples against capital punishment. Taylor v. State, 86 Neb. 795, 126 N.W. 752 (1910). Mere sentimental feelings against death punishment is not sufficient; juror must be so prejudiced against it that opinion would preclude him from finding defendant guilty. Haddix v. State, 76 Neb. 369, 107 N.W. 781 (1906); Rhea v. State, 63 Neb. 461, 88 N.W. 789 (1902). Provision making conscientious scruples against death penalty a ground of challenge for cause was not repealed by amendment of 1893, conferring on jury discretion to fix punishment for first degree murder at life imprisonment instead of death. Hill v. State, 42 Neb. 503, 60 N.W. 916 (1894). Statement of juror that his convictions are such as would preclude conviction of guilty on circumstantial evidence, when punishment is death, is ground for challenge. St. Louis v. State, 8 Neb. 405, 1 N.W. 371 (1879). 2. Opinion of juror Under subdivision (2) of this section, only if the juror's opinion was formed based upon conversations with witnesses of the transactions or reading reports of their testimony or hearing them testify is dismissal of the juror for cause mandatory. State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009). The district court did not err in retaining jurors who expressed opinions of guilt, which were not founded on witness testimony, and who testified they could render an impartial verdict. State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007). Subsection (3) of this section allows a juror to be successfully challenged for cause on the basis of his or her opinions regarding the death penalty only in those cases in which those opinions would prevent the juror from impartially weighing the evidence and reaching a conclusion as to the defendant's guilt or innocence on the basis of the evidence presented. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000). Opinion of juror based on reading newspapers did not disqualify him. Fugate v. State, 169 Neb. 420, 99 N.W.2d 868 (1959). Voir dire examination furnishes a defendant ample opportunity to establish whether prospective jurors have been prejudiced by newspaper articles. Kitts v. State, 153 Neb. 784, 46 N.W.2d 158 (1951). Opinion based upon newspaper reports does not afford cause for challenge, where it is shown that same will not interfere with juror in rendering fair and impartial verdict upon evidence, under instructions of the court. Ringer v. State, 114 Neb. 404, 207 N.W. 928 (1926); King v. State, 108 Neb. 428, 187 N.W. 934 (1922); Bridges v. State, 80 Neb. 91, 113 N.W. 1048 (1907). Juror, having formed opinion, is not disqualified in view of statement that he would disregard opinion and return fair and impartial verdict. King v. State, 108 Neb. 428, 187 N.W. 934 (1922). Where juror answers that evidence is necessary to remove opinion, such fact will not disqualify him, if opinion formed, and he is otherwise qualified, in accordance with statute. Whitcomb v. State, 102 Neb. 236, 166 N.W. 553 (1918). Challenge for cause, where juror has formed opinion founded on reading testimony of witnesses, should be sustained; statute is mandatory. Flege v. State, 93 Neb. 610, 142 N.W. 276 (1913). Mere fact that juror, otherwise competent, had feeling that white race was superior to colored race, of which defendant was one, did not render him incompetent. Johnson v. State, 88 Neb. 565, 130 N.W. 282 (1911). Hypothetical opinion, based solely on rumor and newspaper reports, may not disqualify. Barker v. State, 73 Neb. 469, 103 N.W. 71 (1905); Jahnke v. State, 68 Neb. 154, 94 N.W. 158 (1903), reversed on rehearing, 68 Neb. 181, 104 N.W. 154 (1905); Rottman v. State, 63 Neb. 648, 88 N.W. 857 (1902); Ward v. State, 58 Neb. 719, 79 N.W. 725 (1899). Juror is incompetent when he says it will require some evidence to remove his opinion, though he may also state that he can render impartial verdict under law and evidence. Owens v. State, 32 Neb. 167, 49 N.W. 226 (1891). Where juror answered he had no bias or prejudice against defendant, it was not error to sustain objections to other questions seeking to elicit remarks made about defendant. Gandy v. State, 27 Neb. 707, 43 N.W. 747, 44 N.W. 108 (1889). Juror, who admits having opinion, and does not state that he could render fair and impartial verdict, is incompetent. Thurman v. State, 27 Neb. 628, 43 N.W. 404 (1889). To render a juror incompetent in a criminal case on the ground of an opinion formed or expressed, it must appear that opinion was in reference to guilt or innocence of defendant. Fillion v. State, 5 Neb. 351 (1877). If venireman has formed opinion from reading testimony of witnesses, he is incompetent, though he swears to be able, notwithstanding, to render an impartial verdict on the law and evidence. Smith v. State, 5 Neb. 181 (1876). 3. Relation to defendant Under subdivision (2) of this section, the mere fact that a prospective juror is personally acquainted with the victim or the victim's family does not automatically disqualify a person from sitting on a criminal jury. State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009). In prosecution for forging note payable to a bank, challenge to juror on ground that his wife and brother were depositors in bank was properly overruled. Flannigan v. State, 127 Neb. 640, 256 N.W. 321 (1934). Juror, first cousin to accused, was properly excused as being a relation within fifth degree. Marion v. State, 20 Neb. 233, 29 N.W. 911 (1886). 4. Other grounds Counsel has right to put pertinent questions to prospective jurors to ascertain if there is ground for challenge for cause. Oden v. State, 166 Neb. 729, 90 N.W.2d 356 (1958). This section furnishes ample opportunity to establish whether prospective jurors have been prejudiced by reading newspaper article. Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689 (1951). Where competency of juror is challenged for first time after conviction, on ground that he had been convicted of felony and served term in penitentiary, such objection was waived. Reed v. State, 75 Neb. 509, 106 N.W. 649 (1906); Turley v. State, 74 Neb. 471, 104 N.W. 934 (1905). Court must be satisfied that juror is impartial; that, notwithstanding his opinion, he will render impartial verdict upon law and evidence. Lucas v. State, 75 Neb. 11, 105 N.W. 976 (1905). It is good cause for challenge that juror has served as juror in same court within two years. Coil v. State, 62 Neb. 15, 86 N.W. 925 (1901). Juror should be excused if court discovers least symptom of prejudice, though his formal answers bring him within letter of statutory qualification. Cowan v. State, 22 Neb. 519, 35 N.W. 405 (1887). 5. Miscellaneous Section 29-2004, governing the discharge of a juror after the jury is sworn, and not this section, which governs the disqualification of a juror for cause before the jury is sworn, governed the State's motion to "strike" the juror for cause after trial began. State v. Huff, 298 Neb. 522, 905 N.W.2d 59 (2017). Subsection (3) of this section does not violate either the 6th or the 14th Amendment to the U.S. Constitution. Subsection (3) of this section does not violate Article I, section 3, of the Nebraska Constitution. Subsection (3) of this section fully comports with the state constitutional provisions regarding impartial juries and due process found in Article I, sections 6 and 11. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000). Failure to insist on a ruling on a challenge for cause waives error in the denial of that challenge. State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992). Subsection (3) of this section held constitutional and serves to ensure that the petit jury is impartial. State v. Burchett, 224 Neb. 444, 399 N.W.2d 258 (1986). Death-qualified jury held constitutional. State v. Peery, 223 Neb. 556, 391 N.W.2d 566 (1986). This section does not violate the sixth or fourteenth amendment to the U.S. Constitution. State v. Rust, 223 Neb. 150, 388 N.W.2d 483 (1986). If several juries are picked at one time from a single jury panel for a series of trials, examination must be allowed if requested for good reason in subsequent trials in the series to determine if any jurors should be excused for cause. State v. Myers, 190 Neb. 466, 209 N.W.2d 345 (1973). Opportunity for prejudice or disqualification of juror is not sufficient to raise a presumption that they exist. Medley v. State, 156 Neb. 25, 54 N.W.2d 233 (1952); Fisher v. State, 154 Neb. 166, 47 N.W.2d 349 (1951). Question of competency of veniremen to sit in trial of criminal cannot be raised by motion for continuance. Seaton v. State, 106 Neb. 833, 184 N.W. 890 (1921). Error cannot be predicated on overruling challenge for cause, complaining party not having exhausted peremptory challenges. Kennison v. State, 83 Neb. 391, 119 N.W. 768 (1909); Brinegar v. State, 82 Neb. 558, 118 N.W. 475 (1908). Proceedings relative to impaneling jury, to be reviewable, should be preserved by bill of exceptions. Shumway v. State, 82 Neb. 152, 117 N.W. 407 (1908), opinion modified in 82 Neb. 165, 119 N.W. 517 (1909). If examination considered as whole, does not show incompetency, challenge is properly overruled. Keeler v. State, 73 Neb. 441, 103 N.W. 64 (1905). Failure to interrogate juror as to residence is waiver of that objection. Hickey v. State, 12 Neb. 490, 11 N.W. 744 (1882).