After the jury has been impaneled and sworn, the trial shall proceed in the following order: (1) The counsel for the state must state the case of the prosecution and may briefly state the evidence by which he expects to sustain it; (2) the defendant or his counsel must then state his defense and may briefly state the evidence he expects to offer in support of it; (3) the state must first produce its evidence; the defendant will then produce his evidence; (4) the state will then be confined to rebutting evidence, unless the court for good reason in furtherance of justice, shall permit it to offer evidence in chief; (5) when the evidence is concluded, either party may request instructions to the jury on the points of law, which shall be given or refused by the court, which instructions shall be reduced to writing if either require it; (6) when the evidence is concluded, unless the case is submitted without argument, the counsel for the state shall commence, the defendant or his counsel follow, and the counsel for the state conclude the argument to the jury; (7) the court after the argument is concluded shall immediately and before proceeding with other business charge the jury, which charge or any charge given after the conclusion of the argument shall be reduced to writing by the court, if either party requests it before the argument to the jury is commenced; and such charge or charges or any other charge or instruction provided for in this section, when so written and given, shall in no case be orally qualified, modified or in any manner explained to the jury by the court; and all written charges and instructions shall be taken by the jury in their retirement and returned with their verdict into court, and shall remain on file with the papers of the case.
Notes of Decisions
Cited in
16
cases (
2 in the last 5 years), 1933–2022 · leading case:
State v. Gales, 694 N.W.2d 124 (Neb. Ct. App. 2005).
State v. Gales, 694 N.W.2d 124 (Neb. Ct. App. 2005).
· cites it 3× “However, Neb. Rev. Stat. § 29-2016 (6) (Reissue 1995), which generally governs trial procedure in criminal cases, provides that “when the evidence is concluded, unless the case is submitted without argument, the counsel for the state shall commence, the defendant or his counsel…”
State v. Hunt, 371 N.W.2d 708 (Neb. 1985).
· cites it 8× “He argues that Neb.Rev.Stat. § 29-2016 (Reissue 1979) mandates that the prosecutor define in the State's opening statement the elements of the crime with which a criminal defendant is charged and that the prosecutor in this case failed to so do.”
State v. Lierman, 305 Neb. 289 (Neb. 2020).
· cites it 2× “First, we observe that Neb. Rev. Stat. § 29-2016 (Reissue 2016) sets forth the procedure that a trial court should follow in conducting a criminal trial.”
State v. Hankins, 441 N.W.2d 854 (Neb. 1989).
· cites it 3× “Under the Code of Criminal Procedure, specifically Neb. Rev. Stat. § 29-2016 (6) (Reissue 1985), the appropriate procedure for closing arguments in criminal cases is that “when the evidence is concluded, unless the case is submitted without argument, the counsel for the state…”
State v. Coomes, 309 Neb. 749 (Neb. 2021).
· cites it 2× “11 This is so because the order of proof is “a rule of practice, not of law, and departures are allowed 6 State v.”
State v. Drinkwalter, 493 N.W.2d 319 (Neb. 1992).
· cites it 4× “Neb.Rev.Stat. § 29-2016 (Reissue 1989), which provides for the order of procedure for a criminal trial, does not require that a preliminary instruction be given to the jury.”
State v. Pratt, 249 N.W.2d 495 (Neb. 1977).
· cites it 4× “Section 29-2016(4), R.R.S.1943, provides that after the State has produced its evidence and the defendant has produced his evidence, "the state will then be confined to rebutting evidence, unless the court for good reason in furtherance of justice, shall permit it to offer…”
State v. Fahlk, 524 N.W.2d 39 (Neb. 1994).
· cites it 2× “Ordinarily, a trial proceeds in the following order: “[T]he state must first produce its evidence; the defendant will then produce his evidence; . . . the state will then be confined to rebutting evidence, unless the court for good reason in furtherance of justice, shall permit…”
State v. Santos-Romero, 974 N.W.2d 624 (Neb. Ct. App. 2022).
· cites it 2× “He relies on Neb. Rev. Stat. § 29-2016 (Reissue 2016), which provides the order of proce- dure for jury trials, including that after closing arguments are concluded, the court “shall immediately and before proceeding with other business charge the jury.”
Small v. State, 85 N.W.2d 712 (Neb. 1957).
· cites it 2× “Section 29-2016, R. R. S. 1943, provides in part: “After the jury has been impaneled and sworn, the trial shall proceed in the following order: * * * (4) the state will then be confined to rebutting evidence, unless the court for good reason in furtherance of justice, shall…”
Hampton v. State, 28 N.W.2d 322 (Neb. 1947).
· cites it 2× “Section 29-2016, R. S. 1943, provides that after defendant has produced his evidence, the state will be confined to rebutting evidence, unless the court for good reason in furtherance of justice shall permit it to offer evidence in chief.”
State v. Howard, 168 N.W.2d 370 (Neb. 1969).
“§ 29-2016 (4), R. R. S. 1943. In this case, the voice identification was made after the witness had heard the defendant testify in open court.”
— Neb. Rev. Stat. § 29-2016(4) — 1 case
State v. Pratt, 249 N.W.2d 495 (Neb. 1977).
“Section 29-2016(4), R.R.S.1943, provides that after the State has produced its evidence and the defendant has produced his evidence, "the state will then be confined to rebutting evidence, unless the court for good reason in furtherance of justice, shall permit it to offer…”
— Neb. Rev. Stat. § 29-2016(6) — 2 cases
State v. Gales, 694 N.W.2d 124 (Neb. Ct. App. 2005).
“However, Neb. Rev. Stat. § 29-2016 (6) (Reissue 1995), which generally governs trial procedure in criminal cases, provides that “when the evidence is concluded, unless the case is submitted without argument, the counsel for the state shall commence, the defendant or his counsel…”
State v. Hankins, 441 N.W.2d 854 (Neb. 1989).
“Under the Code of Criminal Procedure, specifically Neb. Rev. Stat. § 29-2016 (6) (Reissue 1985), the appropriate procedure for closing arguments in criminal cases is that “when the evidence is concluded, unless the case is submitted without argument, the counsel for the state…”
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