§ 29-2005 — Peremptory challenges

Nebraska § 29-2005

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

Except as otherwise provided in section 29-2004 for peremptory challenges to alternate jurors:
(1) Every person arraigned for any crime punishable with death, or imprisonment for life, shall be admitted on his or her trial to a peremptory challenge of twelve jurors, and no more;
(2) Every person arraigned for any offense that may be punishable by imprisonment for a term exceeding eighteen months and less than life, shall be admitted to a peremptory challenge of six jurors;
(3) In all other criminal trials, the defendant shall be allowed a peremptory challenge of three jurors; and
(4) The attorney prosecuting on behalf of the state shall be admitted to a peremptory challenge of twelve jurors in all cases when the offense is punishable with death or imprisonment for life, six jurors when the offense is punishable by imprisonment for a term exceeding eighteen months and less than life, and three jurors in all other cases.

Legislative History

Source: G.S.1873, c. 58, § 467, p. 826; R.S.1913, § 9108; Laws 1915, c. 166, § 1, p. 337; C.S.1922, § 10133; C.S.1929, § 29-2005; Laws 1933, c. 38, § 2, p. 243; C.S.Supp.,1941, § 29-2005; R.S.1943, § 29-2005; Laws 1981, LB 213, § 1; Laws 2015, LB268, § 15; Referendum 2016, No. 426; Laws 2020, LB881, § 21. Annotations: Depriving a defendant in a criminal proceeding of the peremptory challenges to which he or she is statutorily entitled is structural error. State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005). Where two or more offenses are properly joined, a trial court does not err in limiting the defendant to the number of peremptory challenges statutorily available for the most serious of the offenses, and a defendant is not entitled to additional peremptory challenges because the indictment charges separate offenses in separate counts. State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992). Where imprisonment authorized was for a period of one year, only three peremptory challenges could be demanded. State v. Abboud, 181 Neb. 84, 147 N.W.2d 152 (1966). Counsel have right to put pertinent questions on voir dire examination of jurors to aid in the exercise of right of peremptory challenge. Oden v. State, 166 Neb. 729, 90 N.W.2d 356 (1958). Order of exercise of peremptory challenges rested in discretion of trial court. Callies v. State, 157 Neb. 640, 61 N.W.2d 370 (1953); Sherrick v. State, 157 Neb. 623, 61 N.W.2d 358 (1953). Where both state and defendant waived peremptory challenge, objection to disqualification of juror who had read newspaper article was waived. Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689 (1951). Peremptory challenges are not to be exercised until jurors have been passed for cause. Fetty v. State, 119 Neb. 619, 230 N.W. 440 (1930); Mathes v. State, 107 Neb. 212, 185 N.W. 425 (1921); Rutherford v. State, 32 Neb. 714, 49 N.W. 701 (1891). Order in which challenges shall be made is left to sound discretion of trial court. Johnson v. State, 88 Neb. 565, 130 N.W. 282 (1911); Gravely v. State, 45 Neb. 878, 64 N.W. 452 (1895). Failure to exercise right of peremptory challenge is waiver of any disqualification then known to exist. Morgan v. State, 51 Neb. 672, 71 N.W. 788 (1897); Curran v. Percival, 21 Neb. 434, 32 N.W. 213 (1887).