NE Code § 29-2016 (2021)
2021 Nebraska Revised Statutes|Chapter 29 - Criminal Procedure|29-2016 - Trial; order of procedure.

29-2016.  Trial; order of procedure.After the jury has been impaneled and sworn, the trial shall proceed in the following order: (1) The counsel for the state must state the case of the prosecution and may briefly state the evidence by which he expects to sustain it; (2) the defendant or his counsel must then state his defense and may briefly state the evidence he expects to offer in support of it; (3) the state must first produce its evidence; the defendant will then produce his evidence; (4) the state will then be confined to rebutting evidence, unless the court for good reason in furtherance of justice, shall permit it to offer evidence in chief; (5) when the evidence is concluded, either party may request instructions to the jury on the points of law, which shall be given or refused by the court, which instructions shall be reduced to writing if either require it; (6) when the evidence is concluded, unless the case is submitted without argument, the counsel for the state shall commence, the defendant or his counsel follow, and the counsel for the state conclude the argument to the jury; (7) the court after the argument is concluded shall immediately and before proceeding with other business charge the jury, which charge or any charge given after the conclusion of the argument shall be reduced to writing by the court, if either party requests it before the argument to the jury is commenced; and such charge or charges or any other charge or instruction provided for in this section, when so written and given, shall in no case be orally qualified, modified or in any manner explained to the jury by the court; and all written charges and instructions shall be taken by the jury in their retirement and returned with their verdict into court, and shall remain on file with the papers of the case.Source   G.S.1873, c. 58, § 478, p. 828;   R.S.1913, § 9119;   C.S.1922, § 10144;   C.S.1929, § 29-2016;   R.S.1943, § 29-2016. Annotations  1. Instructions 2. Opening statement 3. Misconduct 4. Admissibility of evidence 5. Procedure 1. Instructions Defendant may not predicate error on an instruction that is more favorable to him than is required by law. Stump v. State, 132 Neb. 49, 271 N.W. 163 (1937). Proper time to submit requested instructions is as early in trial as possible, but not later than close of evidence. Whitehall v. Commonwealth Casualty Co., 125 Neb. 16, 248 N.W. 692 (1933). It is the court's duty, on own motion, to instruct as to general rules of law; instruction desired should be submitted in writing. Osborne v. State, 115 Neb. 65, 211 N.W. 179 (1926). Examples of instructions on "reasonable doubt" given. Stehr v. State, 92 Neb. 755, 139 N.W. 676 (1913); Brown v. State, 88 Neb. 411, 129 N.W. 545 (1911); Clements v. State, 80 Neb. 313, 114 N.W. 271 (1907); Atkinson v. State, 58 Neb. 356, 78 N.W. 621 (1899); Maxfield v. State, 54 Neb. 44, 74 N.W. 401 (1898); Whitney v. State, 53 Neb. 287, 73 N.W. 696 (1898); Ferguson v. State, 52 Neb. 432, 72 N.W. 590 (1897). It is not error to refuse requested instruction when substance of it has been given. Graham v. State, 90 Neb. 658, 134 N.W. 249 (1912); Lillie v. State, 72 Neb. 228, 100 N.W. 316 (1904). Instruction should be applicable to precise question being tried. Flege v. State, 90 Neb. 390, 133 N.W. 431 (1911). Instructions on burden of proof where defense is insanity discussed. Davis v. State, 90 Neb. 361, 133 N.W. 406 (1911); Knights v. State, 58 Neb. 225, 78 N.W. 508 (1899); Snider v. State, 56 Neb. 309, 76 N.W. 574 (1898). Where circumstances surrounding homicide are proved, it is error to instruct that malice will be implied from killing. Davis v. State, 90 Neb. 361, 133 N.W. 406 (1911). Instruction on credibility of informers will not ordinarily apply to a county attorney, sheriff, or his deputy. Keezer v. State, 90 Neb. 238, 133 N.W. 204 (1911). Erroneous instruction, legal effect of which is practically same as one given on request of defendant, is generally not ground for reversal, unless clearly prejudicial to defendant. Coffman v. State, 89 Neb. 313, 131 N.W. 616 (1911). Trial court in giving instruction may describe offense in language of statute. Jones v. State, 87 Neb. 390, 127 N.W. 158 (1910). If court in its instructions purports to copy a section of criminal code, quotation should be correct. Boyer v. State, 84 Neb. 407, 121 N.W. 445 (1909). If an instruction is given when no testimony sustains it, and prejudice results, new trial will be granted. Parker v. State, 76 Neb. 765, 108 N.W. 121 (1906). It is duty of court to instruct as to rules of law governing disposition of criminal case whether requested or not. Young v. State, 74 Neb. 346, 104 N.W. 867 (1905); Martin v. State, 67 Neb. 36, 93 N.W. 161 (1903). Instructions must not conflict, must be construed together, and correctly state law. Higbee v. State, 74 Neb. 331, 104 N.W. 748 (1905); Bartley v. State, 53 Neb. 310, 73 N.W. 744 (1898). Where jury is not required to fix punishment, court's refusal to instruct as to penalty prescribed, or to permit that question to be argued to jury, is proper. Edwards v. State, 69 Neb. 386, 95 N.W. 1038 (1903). Instruction on circumstantial evidence approved. Lamb v. State, 69 Neb. 212, 95 N.W. 1050 (1903); Cunningham v. State, 56 Neb. 691, 77 N.W. 60 (1898). Instructions should be construed as a whole; one having no foundation in evidence is properly refused. Rhea v. State, 63 Neb. 461, 88 N.W. 789 (1902). Instructions, purporting to cover whole case, which fail to include all elements involved in issue, are erroneous. Dobson v. State, 61 Neb. 584, 85 N.W. 843 (1901); Bergeron v. State, 53 Neb. 752, 74 N.W. 253 (1898). Instruction which casts burden on defendant to prove defense is erroneous. Howell v. State, 61 Neb. 391, 85 N.W. 289 (1901). Instruction to jury that oath imposes no obligation to doubt where no doubt would have existed if no oath had been administered, and that they are not at liberty to disbelieve as jurors, if from the evidence they believe as men, was proper. Leisenberg v. State, 60 Neb. 628, 84 N.W. 6 (1900). Failure to number instructions is not reversible error if not excepted to when charge is given. Kastner v. State, 58 Neb. 767, 79 N.W. 713 (1899). Instruction as to credibility of witnesses, and refusal to give instruction which would have effect of withdrawing consideration of material evidence, discussed and sustained. Chezem v. State, 56 Neb. 496, 76 N.W. 1056 (1898). Assumption of facts stipulated as true by defendant, and instruction as to legal effect, was proper. Pisar v. State, 56 Neb. 455, 76 N.W. 869 (1898). Instruction on drunkenness as defense discussed. Latimer v. State, 55 Neb. 609, 76 N.W. 207 (1898). Quotation of main portion of section under which prosecution was instituted was not misleading. Instruction as to consideration of circumstances was proper. Mills v. State, 53 Neb. 263, 73 N.W. 761 (1898). Objection to instruction, because it contains two or more propositions, will not be considered, when made for first time in Supreme Court. Morgan v. State, 51 Neb. 672, 71 N.W. 788 (1897). Instruction, that burden is on accused to establish an alibi, is erroneous. Beck v. State, 51 Neb. 106, 70 N.W. 498 (1897). Error in refusal to give proffered instruction must affirmatively appear from inspection of entire record. Lauder v. State, 50 Neb. 140, 69 N.W. 776 (1897). Instructions must be applicable to facts, as well as a correct statement of law; to make failure to give instruction prejudicial, proper one must be submitted. Wells v. State, 47 Neb. 74, 66 N.W. 29 (1896). Instruction is erroneous if it infringes on province of jury or tends to shift burden of proof to accused. Haskins v. State, 46 Neb. 888, 65 N.W. 894 (1896). Instruction reciting material evidence which is not before jury is error. Williams v. State, 46 Neb. 704, 65 N.W. 783 (1896). Instruction, submitting question of fact material to issue, when there is no evidence to support finding of its existence, is error. Morearty v. State, 46 Neb. 652, 65 N.W. 784 (1896). Instructions on larceny, and reasonable doubt, discussed. Lawhead v. State, 46 Neb. 607, 65 N.W. 779 (1896). It is error to give instruction which assumes a material fact, evidence thereon being conflicting. Metz v. State, 46 Neb. 547, 65 N.W. 190 (1895). Repetition of proposition of law, not of such character as to prejudice rights of accused, was not reversible error. Dixon v. State, 46 Neb. 298, 64 N.W. 961 (1895). 2. Opening statement A prosecutor states a case as contemplated by this section when he or she outlines the nature of the proceeding against the defendant. State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985). Opening statement of county attorney was a sufficient compliance with statute. Morris v. State, 109 Neb. 412, 191 N.W. 717 (1922). Defendant may waive opening statement to jury. Pumphrey v. State, 84 Neb. 636, 122 N.W. 19 (1909). It is competent for county attorney, before introduction of evidence, to outline evidence which state expects to produce. Russell v. State, 62 Neb. 512, 87 N.W. 344 (1901). 3. Misconduct Alleged misconduct of officers in giving statements to newspaper reporters during trial is not ground for new trial unless prejudice is shown. Rogers v. State, 93 Neb. 554, 141 N.W. 139 (1913). Objection that prosecuting attorney is guilty of misconduct at the trial, prejudicial to defendant, must be taken at the time. It is primarily a question for trial court. Goldsberry v. State, 92 Neb. 211, 137 N.W. 1116 (1912). Arguments and insinuations not based upon competent evidence are improper. Kanert v. State, 92 Neb. 14, 137 N.W. 975 (1912). To review ruling on alleged misconduct of counsel, it must be excepted to at time. Hanks v. State, 88 Neb. 464, 129 N.W. 1011 (1911). In reviewing alleged misconduct of county attorney, decision by trial judge on conflicting evidence will not be disturbed unless clearly wrong. Holmes v. State, 82 Neb. 406, 118 N.W. 99 (1908); Harris v. State, 80 Neb. 195, 114 N.W. 168 (1907). Adverse ruling and exception thereto must be shown to review ruling on misconduct of attorney in arguing case. Hamblin v. State, 81 Neb. 148, 115 N.W. 850 (1908). Misconduct of counsel, so flagrant that neither retraction nor rebuke from court can entirely destroy its influence, is cause for new trial. Parker v. State, 67 Neb. 555, 93 N.W. 1037 (1903). Prosecuting attorney should not state to jury his belief in guilt of accused, unless based on evidence. Reed v. State, 66 Neb. 184, 92 N.W. 321 (1902). 4. Admissibility of evidence The trial court may in its discretion permit evidence in rebuttal which is not strictly rebuttal evidence. State v. Pratt, 197 Neb. 382, 249 N.W.2d 495 (1977); State v. Keith, 189 Neb. 536, 203 N.W.2d 500 (1973). It is within discretion of trial court to permit introducing of evidence in rebuttal that is not strictly rebutting and may permit state to offer further evidence-in-chief for good reason and in furtherance of justice. State v. Howard, 184 Neb. 461, 168 N.W.2d 370 (1969). On rebuttal, court may permit evidence of confession. Drewes v. State, 156 Neb. 319, 56 N.W.2d 113 (1952). It is within the discretion of the trial court to permit in rebuttal the introduction of evidence not strictly rebutting. Hampton v. State, 148 Neb. 574, 28 N.W.2d 322 (1947). Trial judge, in ruling upon objections to evidence, should refrain from expressing opinion concerning weight of evidence or credibility of witness. Johns v. State, 88 Neb. 145, 129 N.W. 247 (1910). Plea of guilty entered at preliminary upon advice of officer cannot be received in evidence over objections of defendant. Heddendorf v. State, 85 Neb. 747, 124 N.W. 150 (1910). Sufficiency of evidence, identifying defendant as perpetrator of crime, discussed. Buckley v. State, 79 Neb. 86, 112 N.W. 283 (1907). Court may permit a party to reopen case and introduce other evidence before close of trial. Blair v. State, 72 Neb. 501, 101 N.W. 17 (1904). Evidence admitted without objection, not necessarily injurious to defendant, is without prejudice. Lillie v. State, 72 Neb. 228, 100 N.W. 316 (1904). Test of admissibility of confession stated. State v. Force, 69 Neb. 162, 95 N.W. 42 (1903); Strong v. State, 63 Neb. 440, 88 N.W. 772 (1902). Confession, voluntarily made, is admissible when not prompted by any inducement. McNutt v. State, 68 Neb. 207, 94 N.W. 143 (1903); Reinoehl v. State, 62 Neb. 619, 87 N.W. 355 (1901); Coil v. State, 62 Neb. 15, 86 N.W. 925 (1901); Hills v. State, 61 Neb. 589, 85 N.W. 836 (1901). Prior statements of accused, as to how crime might be committed, were properly admitted. Keating v. State, 67 Neb. 560, 93 N.W. 980 (1903). Witness may be asked if he has known of defendant being arrested, defendant having offered evidence of good character. McCormick v. State, 66 Neb. 337, 92 N.W. 606 (1902). Where expert witnesses testify to manner and cause of death, and refer to and use exhibits, it is proper to admit exhibits. Savary v. State, 62 Neb. 166, 87 N.W. 34 (1901). Every fact which implies defendant's guilt is pertinent evidence to sustain such hypothesis. Jerome v. State, 61 Neb. 459, 85 N.W. 394 (1901). It is error to exclude evidence, tendency of which is to put an innocent look upon inculpatory circumstances. Burlingim v. State, 61 Neb. 276, 85 N.W. 76 (1901). Prior inconsistent statements of witness may be shown in rebuttal, to affect credibility. Tatum v. State, 61 Neb. 229, 85 N.W. 40 (1901). Submission to jury of theory which has no basis in evidence is error. Thompson v. State, 61 Neb. 210, 85 N.W. 62 (1901). Testimony of similar acts by defendant may be received to establish intent only. Knights v. State, 58 Neb. 225, 78 N.W. 508 (1899); Morgan v. State, 56 Neb. 696, 77 N.W. 64 (1898). Order of introducing testimony will not prevent defendant from introducing evidence to impeach witness used on rebuttal by state. Argabright v. State, 56 Neb. 363, 76 N.W. 876 (1898). Error cannot be predicated on admission of facts subsequently admitted. Whitney v. State, 53 Neb. 287, 73 N.W. 696 (1898). Objections to admission of testimony must be made at trial, and ruling had thereon. Dutcher v. State, 16 Neb. 30, 19 N.W. 612 (1884). 5. Procedure The appropriate procedure for closing arguments in criminal cases is provided by subsection (6) of this section. The trial court did not err in refusing to grant surrebuttal argument to the defendant, who had the burden of proof on the issue of insanity. State v. Hankins, 232 Neb. 608, 441 N.W.2d 854 (1989). Order of proof is discretionary with the trial court. Small v. State, 165 Neb. 381, 85 N.W.2d 712 (1957). Cautionary direction need not be in writing. Schriner v. State, 155 Neb. 894, 54 N.W.2d 224 (1952). Order in which a party shall introduce his proof is, to great extent, discretionary with trial judge, and court's action will not be reversed unless abuse of discretion is shown. Hukill v. State, 109 Neb. 279, 190 N.W. 867 (1922); Joyce v. State, 88 Neb. 599, 130 N.W. 291 (1911); Baer v. State, 59 Neb. 655, 81 N.W. 856 (1900). In larceny case, it is discretionary to permit state to withdraw announcement of rest, and prove ownership. Kurpgeweit v. State, 97 Neb. 713, 151 N.W. 172 (1915). County attorney under direction of court may procure the assistance of counsel to prosecute person charged with felony. McKay v. State, 90 Neb. 63, 132 N.W. 741 (1911); Johns v. State, 88 Neb. 145, 129 N.W. 247 (1910). Permission to put leading questions to witnesses of a party, where they appear hostile or unwilling, is in discretion of trial court. Ainlay v. State, 89 Neb. 721, 132 N.W. 120 (1911). In trial for felony, prosecution should examine in first instance witnesses who have knowledge of res gestae. Johnson v. State, 88 Neb. 328, 129 N.W. 281 (1911). Order permitting separation of jury in murder case for period of twenty-one days on account of quarantine of defendant's witnesses was not prejudicial error. Ossenkop v. State, 86 Neb. 539, 126 N.W. 72 (1910). Credibility of defendant as witness is tested by same rule as applied to other witnesses. Holmes v. State, 85 Neb. 506, 123 N.W. 1043 (1909). Answer, responsive to question asked, should not be stricken from record. Fouse v. State, 83 Neb. 258, 119 N.W. 478 (1909). Right to cross-examine is confined to matters brought out in direct examination. Poston v. State, 83 Neb. 240, 119 N.W. 520 (1909). On trial for felony, court may, in his discretion, exclude from courtroom all witnesses for state who are not being examined. Maynard v. State, 81 Neb. 301, 116 N.W. 53 (1908). Court may, in exercise of reasonable discretion, limit number of witnesses testifying to a fact, where a number have already testified thereto, and fact is not in dispute. Cate v. State, 80 Neb. 611, 114 N.W. 942 (1908). Dying declaration, in prosecution for homicide by procuring an abortion, admitted. Edwards v. State, 79 Neb. 251, 112 N.W. 611 (1907). Where it appears to court that a juror has failed to hear part of the evidence, witness should be required to repeat that part which juror failed to hear. Haddix v. State, 76 Neb. 369, 107 N.W. 781 (1906). It is error for judge to absent himself from courtroom, out of sight and hearing of parties, during the argument of counsel. Powers v. State, 75 Neb. 226, 106 N.W. 332 (1905); Palin v. State, 38 Neb. 862, 57 N.W. 743 (1894). Trial court has large though not unlimited discretion in granting or refusing permission to ask leading questions. Woodruff v. State, 72 Neb. 815, 101 N.W. 1114 (1904); Dinsmore v. State, 61 Neb. 418, 85 N.W. 445 (1901). Where party is cross-examined on a collateral matter, he cannot be subsequently contradicted as to his answer. Ferguson v. State, 72 Neb. 350, 100 N.W. 800 (1904). Moral insanity as a defense is not recognized in this state. Bothwell v. State, 71 Neb. 747, 99 N.W. 669 (1904). Length of time jury should be kept together rests in discretion of trial court. Jahnke v. State, 68 Neb. 154, 94 N.W. 158 (1903), reversed on rehearing 68 Neb. 181, 104 N.W. 154 (1905). Nonexpert may give opinion in regard to a matter, which men in general are capable of comprehending, when it is impossible to lay before jury all pertinent facts as witness saw it. Russell v. State, 66 Neb. 497, 92 N.W. 751 (1902). Trial court may limit number of witnesses to prove facts collateral to main issue. Biester v. State, 65 Neb. 276, 91 N.W. 416 (1902). Right of trial judge to cross-examine accused should be exercised sparingly. Leo v. State, 63 Neb. 723, 89 N.W. 303 (1902); Nightingale v. State, 62 Neb. 371, 87 N.W. 158 (1901). Court in charging jury is only required to state the law applicable to the facts proven. Strong v. State, 63 Neb. 440, 88 N.W. 772 (1902). As a general rule, reexamination should be limited to points arising out of cross-examination. George v. State, 61 Neb. 669, 85 N.W. 840 (1901). To justify conviction on circumstantial evidence, circumstances must be consistent with each other and inconsistent with any hypothesis of innocence. Smith v. State, 61 Neb. 296, 85 N.W. 49 (1901). Burden of proof in criminal case does not shift to accused. Williams v. State, 60 Neb. 526, 83 N.W. 681 (1900). Objection to question calling for incompetent testimony cannot be reserved until answer is received. Dunn v. State, 58 Neb. 807, 79 N.W. 719 (1899). Rule of res gestae applied to statements in murder case. Sullivan v. State, 58 Neb. 796, 79 N.W. 721 (1899). Preliminary to impeachment of a witness because of inconsistent statements at previous time, the attention of the witness should be called to the time and place where such alleged statements were made. McVey v. State, 55 Neb. 777, 76 N.W. 438 (1898). Nondirection will not work reversal, proper instruction not being requested. Maxfield v. State, 54 Neb. 44, 74 N.W. 401 (1898); Johnson v. State, 53 Neb. 103, 73 N.W. 463 (1897). Order in which a party shall introduce his proof is discretionary with trial court. Davis v. State, 51 Neb. 301, 70 N.W. 984 (1897). It is competent for witness on redirect examination to make clear matters left incomplete or obscure on cross-examination. Collins v. State, 46 Neb. 37, 64 N.W. 432 (1895). If information contains two counts, there being no evidence to sustain one, it is error to submit question to jury on that count. Botsch v. State, 43 Neb. 501, 61 N.W. 730 (1895). Limit to cross-examination respecting past life of witness, other than defendant, for purpose of affecting his credibility, rests with court. Hill v. State, 42 Neb. 503, 60 N.W. 916 (1894). It is only when there is total failure of proof, or where testimony is so weak or doubtful in character that a conviction could not be sustained, that trial court is justified in directing a verdict of not guilty. Wanzer v. State, 41 Neb. 238, 59 N.W. 909 (1894).