State v. Hairston, 298 Neb. 251

On July 30, 2015, shots were fired into an Oldsmobile in Omaha; a silver Saturn (registered to Lafferrell Matthews) was identified as the shooter vehicle. Matthews later told police Hairston and Nico Wofford were passengers.\
Matthews testified that Hairston fired multiple shots from the front passenger seat; Hairston testified he was elsewhere and did not shoot.\
Two DVDs of a surveillance video (original and a slowed/enlarged redacted version) were admitted into evidence and played for the jury without objection.\
During deliberations the jury used a court-provided laptop to view a mirror/reversed image of the surveillance video; jurors reported seeing details they had not noticed before.\
Hairston sought a new trial alleging (1) juror misconduct because jurors viewed a mirrored image of admitted evidence (extraneous prejudicial information), and (2) prosecutorial misconduct because the prosecutor told a defense witness (Kayla Cash) she could be prosecuted for perjury if she testified, causing her to invoke the Fifth. The district court denied a new trial and refused an evidentiary hearing.\
The Nebraska Supreme Court affirmed, holding no abuse of discretion in denying a new trial or evidentiary hearing.

Issue	Hairston’s Argument	State’s Argument	Held
Juror misconduct — jury viewed mirrored/reversed image of admitted surveillance video during deliberations	Viewing the reversed image allowed jurors to rely on evidence or details not presented at trial (extraneous prejudicial information)	Jurors only re-examined evidence admitted at trial; laptop viewing did not create or introduce new facts	Viewing the reversed image was a permissible, more critical examination of admitted evidence, not extraneous information; no serious misconduct shown; no evidentiary hearing required
Prosecutorial misconduct — prosecutor warned witness about perjury prosecution	Prosecutor’s admonition intimidated Cash into invoking Fifth and prevented defense testimony, warranting a new trial	The prosecutor gave a permissible warning about penalties for perjury; Cash declined to testify on advice of counsel, not due to threats	Warning about perjury penalties was not shown to be a threat or intimidation; no prosecutorial misconduct; no evidentiary hearing required

State v. Hoerle, 297 Neb. 840 (standard for reviewing denial of new trial) (discretionary review).\
State v. Cardeilhac, 293 Neb. 200 (burden to prove juror misconduct and requirement for evidentiary hearing if serious misconduct is shown).\
State v. Thomas, 262 Neb. 985 (definition of "extraneous prejudicial information").\
State v. Ammons, 208 Neb. 797 (prosecutorial intimidation of defense witness can require new trial).\
United States v. Risken, 788 F.2d 1361 (Eighth Circuit: warning about perjury penalties permissible so long as it does not threaten or intimidate).\
People v. Collins, 49 Cal.4th 175 (juror use of personal computer to diagram evidence was permissible critical examination, not extraneous information).\
People v. Turner, 22 Cal. App. 3d 174 (use of magnifying glass to scrutinize admitted photo was allowable critical examination).\
State v. McSwine, 292 Neb. 565 (framework for evaluating prosecutorial misconduct claims).