§ 29-2001 — Trial; presence of accused required; exceptions

Nebraska § 29-2001

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

No person indicted for a felony shall be tried unless personally present during the trial. Persons indicted for a misdemeanor may, at their own request, by leave of the court be put on trial in their absence. The request shall be in writing and entered on the record of the court.

Legislative History

Source: G.S.1873, c. 58, § 464, p. 825; R.S.1913, § 9104; C.S.1922, § 10129; C.S.1929, § 29-2001; R.S.1943, § 29-2001; Laws 2018, LB193, § 57. Annotations: 1. Felony 2. Misdemeanor 3. Miscellaneous 1. Felony Court may not, without notice to and in absence of defendant and his counsel, orally instruct the jury while it is deliberating on the verdict. Strasheim v. State, 138 Neb. 651, 294 N.W. 433 (1940). In felony case, not capital, defendant, out on bail, may waive right to be present during some of proceedings. Scott v. State, 113 Neb. 657, 204 N.W. 381 (1925). Person, convicted of felony, and represented by counsel, cannot, as matter of right, insist on being present either at time of filing, argument or ruling on motion for new trial. Davis v. State, 51 Neb. 301, 70 N.W. 984 (1897). Prisoner must be present at time verdict is received. Dodge v. People, 4 Neb. 220 (1876); Burley v. State, 1 Neb. 385 (1871). 2. Misdemeanor A person charged with a misdemeanor may, upon his request, be put on trial in his absence. Koop v. City of Omaha, 173 Neb. 633, 114 N.W.2d 380 (1962). In a misdemeanor case, presence of defendant when verdict is received may be waived. Hyslop v. State, 159 Neb. 802, 68 N.W.2d 698 (1955). Defendant, charged with misdemeanor, who voluntarily absents himself from courtroom when jury returns verdict, his counsel being present, waived right to be present. Peterson v. State, 64 Neb. 875, 90 N.W. 964 (1902). 3. Miscellaneous A defendant waived the right to be present at trial by voluntarily leaving the courtroom during witness testimony. State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021). A defendant may waive his or her rights under this section through his or her knowing and voluntary absence at trial. State v. Zlomke, 268 Neb. 891, 689 N.W.2d 181 (2004). Defendant has a right to be present at all times when any proceeding is taken during trial, but that right may be waived, and only by the defendant, personally. State v. Red Kettle, 239 Neb. 317, 476 N.W.2d 220 (1991). Defendant has no right in common law or the Constitution to be present in chambers while jury instructions are formulated by counsel and the trial judge. State v. Bear Runner, 198 Neb. 368, 252 N.W.2d 638 (1977). Presence of accused at trial being once shown by record is presumed to have continued unless contrary is made to appear. Bolln v. State, 51 Neb. 581, 71 N.W. 444 (1897). Section does not apply to hearings on motions and demurrers before commencement of trial. Miller v. State, 29 Neb. 437, 45 N.W. 451 (1890). Voluntary unnoticed absence of prisoner during examination of witness where witness was reexamined upon prisoner's return, was not ground for new trial. Hair v. State, 16 Neb. 601, 21 N.W. 464 (1884). View of scene of crime should be made in presence of accused. Fillion v. State, 5 Neb. 351 (1877); Carroll v. State, 5 Neb. 31 (1876).