§ 29-2004 — Jury; how drawn and selected; alternate jurors

Nebraska § 29-2004

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

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(1) All parties may stipulate that the jury may be selected up to thirty-one days prior to the date of trial. The stipulation must be unanimous among all parties and evidenced by a joint stipulation to the county court.
(2) In all cases, except as may be otherwise expressly provided, the accused shall be tried by a jury drawn, summoned, and impaneled according to provisions of the code of civil procedure, except that whenever in the opinion of the court the trial is likely to be a protracted one, the court may, immediately after the jury is impaneled and sworn, direct the calling of additional jurors, to be known as alternate jurors.
(3)(a) The court may impanel up to six alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties.
(b) Alternate jurors must have the same qualifications and shall be selected and sworn in the same manner as any other juror.
(c) Unless a party objects, alternate jurors shall replace jurors in the same sequence in which the alternates were selected. An alternate juror who replaces a juror has the same authority as the other jurors.
(4) The alternate jurors shall take the proper oath or affirmation and shall be seated near the regular jurors with equal facilities for seeing and hearing the proceedings in the cause, and shall attend at all times upon the trial of the cause in company with the regular jurors. They shall obey all orders and admonitions of the court, and if the regular jurors are ordered to be kept in the custody of an officer during the trial of the cause, the alternate jurors shall also be kept with the other jurors.
(5)(a) The court may retain alternate jurors after the jury retires to deliberate, except that if an information charging a violation of section 28-303 and in which the death penalty is sought contains a notice of aggravation, the alternate jurors shall be retained as provided in section 29-2520 .
(b) The court shall ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged. If an alternate replaces a juror after deliberations have begun, the court shall instruct the jury to begin its deliberations anew.
(6)(a) Each party is entitled to the following number of additional peremptory challenges to prospective alternate jurors:
(i) One additional peremptory challenge is permitted when one or two alternates are impaneled;
(ii) Two additional peremptory challenges are permitted when three or four alternates are impaneled; and
(iii) Three additional peremptory challenges are permitted when five or six alternates are impaneled.
(b) The additional peremptory challenges provided in this subsection may only be used to remove alternate jurors.
(7) In construing and applying this section, courts shall consider Federal Rule of Criminal Procedure 24 and case law interpreting such rule.

Legislative History

Source: G.S.1873, c. 58, § 466, p. 825; R.S.1913, § 9107; C.S.1922, § 10132; C.S.1929, § 29-2004; Laws 1933, c. 38, § 1, p. 242; C.S.Supp.,1941, § 29-2004; R.S.1943, § 29-2004; Laws 1996, LB 1249, § 2; Laws 2002, Third Spec. Sess., LB 1, § 6; Laws 2015, LB268, § 14; Referendum 2016, No. 426; Laws 2020, LB881, § 20. Cross References: Change of venue, criminal case pending in county with population of four thousand or less without adequate facilities for jury trials, see section 25-412.01. For drawing and selection of jurors, see Jury Selection Act, section 25-1644. Annotations: 1. Discharge 2. Miscellaneous 1. Discharge A court may discharge a juror for cause after it learned that the defendant's affiliate attempted to talk to the juror during the trial and the juror provided conflicting testimony when questioned about the event. State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021). In a trial for first degree sexual assault, the trial court had discretion to discharge a juror following the close of evidence given the following facts: (1) the juror, on the first day of trial after the jury was sworn, alerted the court of his reluctance to serve on the jury given his upbringing and criminal history; (2) the court had questioned the juror and determined that the juror could remain impartial; (3) the court, after giving its instructions, sua sponte, raised concerns about the juror's lack of attentiveness during trial; and (4) the juror's criminal record, which the State proffered in support of its motion for discharge, indicated that the juror had misrepresented his criminal history in the juror qualification form. State v. Huff, 298 Neb. 522, 905 N.W.2d 59 (2017). This section, governing the discharge of a juror after the jury is sworn, and not section 29-2006, 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). Under this section, a court may discharge a regular juror because of sickness and replace him or her with an alternate juror. State v. Hilding, 278 Neb. 115, 769 N.W.2d 326 (2009). In a trial for attempted murder, assault, and other crimes, a juror who was mistakenly seated on the jury despite having been stricken by the State was a "regular juror," within the meaning of this section, and thus, the juror could be replaced by an alternate when the mistake was discovered. State v. Aguilar, 268 Neb. 411, 683 N.W.2d 349 (2004). Under this section, a trial court may replace a juror with an alternate juror after finding that the original juror could not be fair and impartial. State v. Smith, 13 Neb. App. 404, 693 N.W.2d 587 (2005). 2. Miscellaneous On the State's motion at the close of evidence to strike a seated juror for cause, in a prosecution for first degree sexual assault, the State had the burden to show that the challenged juror was biased, was engaged in misconduct, or was otherwise unable to continue to serve. State v. Huff, 298 Neb. 522, 905 N.W.2d 59 (2017). When a defendant, through diligence, is able to discover a reason to challenge a juror, the objection to the juror must be made at the time of voir dire. State v. Huff, 298 Neb. 522, 905 N.W.2d 59 (2017). Verdict of jury will be set aside where evidence is clearly insufficient to sustain it. Prichard v. State, 135 Neb. 522, 282 N.W. 529 (1938). Accused cannot waive right to trial by jury. Michaelson v. Beemer, 72 Neb. 761, 101 N.W. 1007 (1904). Challenge to array or motion to quash panel must be in writing and should point out grounds relied upon. Strong v. State, 63 Neb. 440, 88 N.W. 772 (1902). Jurors may be summoned for trial of criminal case when no regular panel is present. Carrall v. State, 53 Neb. 431, 73 N.W. 939 (1898). In criminal trials, jurors are not judges of the law. Parrish v. State, 14 Neb. 60, 15 N.W. 357 (1883).