State v. Hairston, 298 Neb. 251

July 30, 2015 shooting: a Saturn passed an Oldsmobile and shots were fired; occupants of the Saturn fled. Lafferrell Matthews (owner/driver) later admitted Hairston and Wofford were passengers; Matthews testified Hairston fired from the front passenger seat.
State introduced surveillance video (two DVDs: original and a slowed/enlarged redacted version) into evidence and played them at trial without objection from Hairston.
Hairston testified he was elsewhere that day; a defense witness, Kayla Cash, invoked the Fifth Amendment on counsel’s advice and did not testify.
Jury convicted Hairston of unlawful discharge of a firearm and use of a weapon to commit a felony; after verdict, jurors reported using a laptop during deliberations to view a mirror/reversed image of the surveillance video and said the reversed view revealed details they had not noticed before.
Hairston moved for a new trial alleging (1) juror misconduct because jurors viewed a reversed image of the admitted video (extraneous prejudicial information) and (2) prosecutorial misconduct because the prosecutor allegedly warned Cash she could be prosecuted for perjury if she testified; district court denied the motion and declined an evidentiary hearing.
Nebraska Supreme Court affirmed, holding the jurors’ viewing of a reversed image did not introduce extraneous information and the prosecutor’s remarks (as alleged) were not an improper threat or intimidation.

Issue	Hairston’s Argument	State’s Argument	Held
Juror misconduct — jurors viewed reversed/mirror image of admitted surveillance video during deliberations	Jury’s manipulation created or exposed them to extraneous, prejudicial evidence not presented at trial, warranting a new trial	The reversed image was merely a different view of admitted evidence; no new or outside information was introduced	No misconduct; viewing was a permissible, more critical examination of admitted evidence; no new trial and no evidentiary hearing required
Prosecutorial misconduct — prosecutor warned Cash she could be prosecuted for perjury if she testified	Prosecutor’s admonition intimidated Cash and caused her to invoke Fifth Amendment, depriving Hairston of defense testimony	Alleged remark was a warning about perjury penalties, not a threat to prosecute for unrelated crimes; Cash declined on counsel’s advice	No misconduct shown; admonition was not improper threat/intimidation; denial of new trial affirmed

State v. Hoerle, 297 Neb. 840 (Neb. 2017) (standard: motion for new trial rests in trial court discretion)
State v. Cardeilhac, 293 Neb. 200 (Neb. 2016) (defendant bears burden to prove juror misconduct and prejudice; hearing required if showing tends to prove serious misconduct)
State v. Thomas, 262 Neb. 985 (Neb. 2002) (definition of "extraneous prejudicial information" and limits on juror testimony under §27-606)
State v. Ammons, 208 Neb. 797 (Neb. 1981) (prosecutorial intimidation of defense witnesses can violate due process)
People v. Collins, 49 Cal. 4th 175 (Cal. 2010) (juror’s use of personal computer to diagram admitted evidence was permissible critical examination, not acquisition of new facts)
United States v. Risken, 788 F.2d 1361 (8th Cir. 1986) (distinguishes permissible warnings about perjury from improper threats that intimidate witnesses)