§ 25-1115 — Instructions; oral explanation prohibited; failure to reduce instructions to writing; failure of court to perform duty; effect

Nebraska § 25-1115

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

No oral explanation of any instruction authorized by the preceding sections shall, in any case, be allowed, and any instruction or charge, or any portion of a charge or instructions, given to the jury by the court and not reduced to writing, as aforesaid, or a neglect or refusal on the part of the court to perform any duty enjoined by the preceding sections, shall be error in the trial of the case, and sufficient cause for the reversal of the judgment rendered therein.

Legislative History

Source: Laws 1875, § 5, p. 77; R.S.1913, § 7854; C.S.1922, § 8798; C.S.1929, § 20-1115; R.S.1943, § 25-1115. Annotations: 1. Error 2. Miscellaneous 1. Error 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 this section and section 25-1116 and is improper. State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002). An oral explanation of an instruction is not allowed. Omey v. Stauffer, 174 Neb. 247, 117 N.W.2d 481 (1962). Oral explanation of instruction in negligence action was error. Owen, Admr. v. Moore, 166 Neb. 226, 88 N.W.2d 759 (1958). To predicate error on giving of oral instruction, objection must be made at the time of giving thereof. Danze v. Stange, 165 Neb. 227, 85 N.W.2d 295 (1957). The giving of oral instructions in regard to principles of law applicable is reversible error. Anderson v. Evans, 164 Neb. 599, 83 N.W.2d 59 (1957). Trial court's oral statement to jury out of presence of counsel that negligence of defendant must be concurrent, and that the jury could not apportion damages, was erroneous as "oral instruction." Dow v. Legg, 120 Neb. 271, 231 N.W. 747 (1930), 74 A.L.R. 5 (1930). At conclusion of charge, court said "The instruction asked by defendant is refused"; this was not prejudicial. McMartin v. State, 95 Neb. 292, 145 N.W. 695 (1914). 2. Miscellaneous Directing a jury to reread properly given instructions is not an instruction as contemplated by this section. In re Petition of Omaha Pub. Power. Dist., 268 Neb. 43, 680 N.W.2d 128 (2004). Court may orally advise jury as to limited purpose for which testimony is received. Grandsinger v. State, 161 Neb. 419, 73 N.W.2d 632 (1955). Prohibition against oral instructions was not violated. Segebart v. Gregory, 160 Neb. 64, 69 N.W.2d 315 (1955). Trial court's explanation of legal term on voir dire examination of jury was not required to be in writing. Rakes v. State, 158 Neb. 55, 62 N.W.2d 273 (1954). Statements of court herein were not oral modifications of instructions. Grammer v. State, 103 Neb. 325, 172 N.W. 41 (1919). Section is mandatory; applies to both civil and criminal cases. Ehrlich v. State, 44 Neb. 810, 63 N.W. 35 (1895). Where giving of written instructions is waived, objection will not be considered on appeal. Fitzgerald v. Fitzgerald, 16 Neb. 413, 20 N.W. 269 (1884). Judge should not make oral statement to jury during trial. Republican Valley R. R. Co. v. Arnold, 13 Neb. 485, 14 N.W. 478 (1882). In order to obtain relief concerning oral instructions, the appellant must demonstrate that it was prejudiced by the trial court's actions. State v. McDaniel, 17 Neb. App. 725, 771 N.W.2d 173 (2009). This section has not been construed so as to require a trial court to reduce to writing all the admonitions which it may be proper to give the jury while the trial is in progress. State v. Claycamp, 14 Neb. App. 675, 714 N.W.2d 455 (2006). 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).