Last week I posted about the process for handling questions from jurors while they are in deliberations. I noted that Neb.Rev.Stat. § 25-1116 requires that the Judge contact the parties or their counsel about the question. The Nebraska Supreme Court has clearly stated that this is the process to be followed (See Nebraska Depository Inst. Guar. Corp. v. Stastny, 243 Neb. 36, 497 N.W.2d 657 (1993); In re Estate of Corbett, 211 Neb. 335, 318 N.W.2d 720 (1982); Breiner v. Olson, 195 Neb. 120, 237 N.W.2d 118 (1975)). But what happens when the Court fails to do so? Reversible error right? In the words of Lee Corso, not so fast my friend.
In State v. Owen, 7 Neb.App. 153 (1998), the trial court received two written questions from the jurors as they deliberated. After receiving the first questions the Judge contacted the attorneys, formulated a response and sent it to the jury. Interesting, the attorney for the defendant requested that each side be allowed an additional five minutes of argument in light of the question posed. That request was denied. The jury later provided another question in follow up to its first. This time, the Judge did not convene the lawyers. Rather, the Judge simply provided the “look at your other instructions” response to the jurors. The jury then returned a verdict against the defendant.
On appeal the Nebraska Court of Appeals noted that the Judge erred in not contacting the parties or their counsel. The Court also noted, however, “if it clearly appears that prejudice did not and could not flow therefrom, then the error is without prejudice and is not grounds for reversal.” Owen, 7 Neb.App. at 162, citing, Brodersen v. Traders Ins. Co., 246 Neb. 688, 523 N.W.2d 24 (1994). In finding no prejudice flowing from the trial court’s actions the Court of Appeals pointed out that the trial court did not present any new instruction but merely noted that the questions could be answered by rereading the prior instructions.