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§ 2-105. Bill of exceptions, making, preserving, transcribing, and delivery of record of trial or other proceeding.

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   (A) Making and Preserving Record.

   (1) "Court reporting personnel," as defined in Neb. Ct. R. § 1-204(A)(1), shall in all instances make a verbatim record of the evidence offered at trial or other evidentiary proceeding, including but not limited to objections to any evidence and rulings thereon, oral motions, and stipulations by the parties. This record may not be waived.

   (2) Upon the request of the court or of any party, either through counsel or pro se, the court reporting personnel shall make or have made a verbatim record of anything and everything said or done by anyone in the course of trial or any other proceeding, including, but not limited to, any pretrial matters; the voir dire examination; opening statements; arguments, including arguments on objections; any motion, comment, or statement made by the court in the presence and hearing of a panel of potential jurors or the trial jury; and any objection to the court's proposed instructions or to instructions tendered by any party, together with the court's rulings thereon, and any posttrial proceeding.

   (B) Transcribing and Delivery of Record; the Bill of Exceptions.

   (1) How Ordered, Contents, and Per-Page Rate.

   (a) Appellant shall file a request to prepare a bill of exceptions in the office of the clerk of the district court at the same time the notice of appeal is filed. At the same time, appellant shall deliver a copy of the request to the court reporting personnel.

   (b) The request shall specifically identify each portion of the evidence and exhibits offered at any hearing which the party appealing believes material to issues to be presented to the Supreme Court for review. The court reporting personnel shall prepare only those portions specified in the request for preparation of the bill of exceptions. If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the bill of exceptions must include all evidence relevant to the finding or conclusion. The appellant shall serve a copy of the request upon the appellee.

   (c) If the appellee believes additional evidence should be included in the bill of exceptions, the appellee shall, within 10 days after service of the request for bill of exceptions filed by the appellant, file a supplemental request for preparation of bill of exceptions. The request shall be filed with the clerk of the district court, and a copy shall be delivered simultaneously to the court reporting personnel by the appellee.

   (d) The bill of exceptions shall contain only matters of evidence or exhibits which are necessary for a determination of the issues on appeal.

   (e) The per‑page fee to which an official court reporter or privately contracted court transcriber is entitled, as prescribed by the Supreme Court pursuant to Neb. Rev. Stat. § 25‑1140.09 and set forth in Neb. Ct. R. § 1-219, shall be $3.25 per page for an original copy of a bill of exceptions and 50 cents per page for each additional copy, with numbering to begin with the cover page. Except in those cases where payment is to be made by a governmental agency, the State of Nebraska, or any political or governmental subdivision thereof, the court reporting personnel responsible for making the record shall advise appellant of the approximate cost of the bill of exceptions immediately after receipt of the request for preparation of the bill of exceptions. Appellant shall deposit the estimated cost with the court reporting personnel within 14 days after receipt of the estimate. Court reporting personnel shall retain the deposit in a separate trust account until the bill of exceptions is filed with the clerk of the district court. When the bill of exceptions is filed by the court reporting personnel responsible for making the record, he or she shall immediately refund any excess payment to the appellant. If additional compensation is due, appellant shall pay the additional amount within 10 days after receipt of a statement for the additional amount. A similar procedure shall be followed if an appellee requests a supplemental bill of exceptions, with the appellee being responsible for payments. If appellant fails to timely make the required deposit of the estimated cost of preparation, court reporting personnel shall forthwith file a notice of such failure with the clerk of the district court, who shall transmit a file-stamped copy thereof to the Clerk of the Supreme Court. Thereafter, unless leave of the appellate court for an extension of time is granted for good cause shown, the appeal shall proceed as if no bill of exceptions had been requested.

   (f) The party requesting the preparation of the bill of exceptions may, at any time before the bill of exceptions is completed, file with the clerk of the district court and serve upon the court reporting personnel a statement advising the court reporting personnel that settlement has been reached. Upon receipt of such statement, court reporting personnel shall cease any further work upon the bill of exceptions or, if applicable, immediately notify the private transcriber to cease further work upon the bill. Court reporting personnel shall be entitled to payment by the party ordering such bill of exceptions for the work performed up to the time that such notice was served upon the court reporting personnel and rules with regard to payment of the fees to the official court reporter or privately contracted court transcriber for the bill of exceptions, as otherwise provided herein, shall apply.

   (2) Delivery of Copy of Request. The clerk of the district court shall deliver a copy of each request filed, with attachments and endorsements thereon, to the Clerk of the Supreme Court, together with the notice of appeal.

COMMENT
   It is the responsibility of the attorney or pro se party to deliver a copy of the request to the official court reporter or courtroom clerk.

   (3) Preparation and Delivery by Court Reporting Personnel.

   (a) The bill of exceptions shall be filed with the clerk of the district court as soon as possible. The bill of exceptions must be filed within the following time limits unless an extension of time is approved by the Supreme Court in accordance with these rules:

                        Civil cases or criminal trials ............... 7 weeks
                        Guilty or nolo contendere pleas .......... 3 weeks
Preparation of the bill of exceptions shall commence from the date the notice of appeal is filed with the clerk of the district court. The clerk shall serve a copy of the notice of appeal on the court reporting personnel forthwith.

   (b) In each case appealed to the Supreme Court, court reporting personnel shall prepare or have prepared an original of the bill of exceptions; the original, together with all documentary and other evidence, shall be filed with the clerk of the district court. Court reporting personnel may retain the bill of exceptions until the deposit is made in compliance with § 2‑105(B)(1)(e).

   (i) The official court reporter or privately contracted transcriber shall prepare one or more write‑protected 3½‑inch computer disks, DVD’s, or CD’s containing the bill of exceptions, exclusive of exhibits, with line and page numbers corresponding to those of the original bill of exceptions. Such disks, DVD’s, or CD’s shall be formatted in Microsoft Word, or, if such formatting cannot be accomplished, in ASCII text (standard) or (stripped). An adhesive label shall be affixed to each computer disk legibly identifying the case caption, docket and page or case numbers, disk number (1 of 2, etc.), the format utilized, and the name of the reporter or private transcriber. The first line of the label shall be left blank. DVD’s and CD’s shall be marked in an appropriate manner with the same information as that required above for disks. Such disks, DVD’s, or CD’s and a photocopy of the cover page of Volume 1 of the bill of exceptions shall be mailed to the Clerk of the Supreme Court on the date when the bill of exceptions is filed in the district court. The bill of exceptions text may also be transmitted to the Clerk of the Supreme Court via e‑mail attachment sent to NSC.BOE@nebraska.gov and shall meet the formatting guidelines set out above. The subject line of such e‑mail transmission shall include the case name, trial court number, and Supreme Court or Court of Appeals case number, if available. Regardless of the transmission option utilized, each transmission shall be limited to a single bill of exceptions. Such disks, DVD’s, CD’s, or e‑mail attachments shall be for the exclusive use of the Supreme Court and authorized court personnel.

   (ii) Any official court reporter or privately contracted transcriber who lacks the technological capability to comply with § 2-105(B)(3)(b)(i) shall include in the bill of exceptions a separate certificate so stating.

   (c) If the official court reporter or privately contracted transcriber is unable to prepare and certify a bill of exceptions, or if a bill of exceptions cannot be prepared and certified under provisions contained elsewhere in these rules, the bill of exceptions shall be prepared under the direction and supervision of the trial judge and shall be certified by the judge and delivered to the clerk of the district court.

   (d) Upon receipt of the bill of exceptions, the clerk of the district court shall forthwith file it and notify all parties or their attorneys of record and the Clerk of the Supreme Court of the date of such filing. When filed with the clerk of the district court, such bill of exceptions becomes the official bill of exceptions in the case and shall not be altered or marked in any fashion or be disassembled for any purpose. The clerk of the district court shall file the bill of exceptions in the office of the Clerk of the Supreme Court within 5 days after a case has been placed on the Supreme Court's proposed call for argument, or at such earlier time as the Clerk of the Supreme Court may request.

   (4) Extension of Time for Preparation of Bill of Exceptions.

   (a) Where a bill of exceptions has been ordered according to law and these rules by the timely filing of a request, and the court reporting personnel are unable to prepare or have prepared and file the bill of exceptions with the clerk of the district court within the times fixed by § 2-105(B)(3), the Supreme Court may grant additional time for preparation of the bill of exceptions.

   (b) A request for additional time for preparation of the bill of exceptions may be made by any party to the action. The request shall be made either by motion, which must be submitted to the Supreme Court as provided in § 2-106, or by the stipulation of all parties to the action. The motion or stipulation must be accompanied by the original copy of the affidavit of the court reporting personnel setting forth the following information:

   (i) the work performed in court since the receipt of the request on which extension is being requested;

   (ii) the number of requests on hand on the date of receipt of the request on which extension is being requested;

   (iii) the estimated total pages comprising the bill of exceptions, together with the number of pages completed as of the date the extension is requested;

   (iv) the amount of time spent on clerical or stenographic duties for the appointing judge;

   (v) the hours and dates spent in the performance of work for other than the appointing judge;

   (vi) any illnesses or family emergencies contributing to the need for the requested extension;

   (vii) any vacation time used since the receipt of the request on which extension is being requested; and

   (viii) the method of preparing the bill of exceptions; e.g., prepared by the official court reporter, note‑reader used, dictated by the reporter and prepared by a typist, or prepared by a privately contracted court transcriber.

   (c) A request for extension must be made not later than 7 days prior to the expiration of the time originally prescribed, or not later than 7 days prior to the expiration of an extension previously granted. Each such request shall bear the approval of the appointing judge. A first extension will not be routinely granted.

   (d) Except for exceptional cause, no more than one 2‑week extension of the time originally prescribed will be granted.

   (5) Amendments to the Bill of Exceptions. The parties in the case may amend the bill of exceptions by written agreement to be attached to the bill of exceptions at any time prior to the time the case is submitted to the Supreme Court. Proposed amendments not agreed to by all the parties to the case shall be heard and decided by the district court after such notice as the court shall direct. The order of the district court thereon shall be attached to the bill of exceptions prior to the time the case is submitted to the Supreme Court. Hearings with respect to proposed amendments to a bill of exceptions may be held at chambers anywhere in the state. If the judge shall have ceased to hold office, or shall be prevented by disability from holding the hearing, or shall be absent from the state, such proposed amendments shall be heard by the successor judge, or by another district judge in the district, or by a district judge in an adjoining judicial district.

   (6) Form of the Bill of Exceptions.

   (a) The bill of exceptions shall have an index, which shall be the first item in the first volume. The index shall show:

   (i) each witness in the order called, and for whom called, and the initial page of the direct, cross, redirect, and recross examination,

   (ii) motions to dismiss or to instruct a verdict and any other motions of major import, and stipulations, together with the rulings of the court thereon, and the page or pages where made and ruled on, and

   (iii) all exhibits, with a description, and the initial page where marked, offered, ruled on, and found.

   (b) The certificate of the official court reporter or privately contracted court transcriber shall immediately follow the index in the first volume of the bill of exceptions.

   (c) The paper used in the bill of exceptions shall be 8½ by 11 inches and of suitable weight and quality as to make the printing thereon easily legible. If computer-generated, the bill of exceptions shall be in not smaller than 12-point Courier, Arial or Helvetica, or Times or Times New Roman font, double spaced, with not less than 12 points of leading. If typewritten, the bill of exceptions shall be double spaced, using nothing smaller than 12-point type. Each volume shall be bound on the lefthand side with either a wire or a plastic spiral. The pages, no matter how many volumes, shall be numbered consecutively, and no volume shall contain over 250 pages. If the record is of such size that it requires more than one volume, then all volumes shall be as nearly of equal size as possible. Each page of the bill of exceptions shall have line numbers in the left‑hand margin from 1 to 25, inclusive, and the lines of typing shall be placed to correspond therewith. No margin line shall exceed ½ inch from the righthand edge of the page. The full name of each witness and whether the examination is direct, cross, or further examination shall be stated at the top of each page of the witness' testimony. Each volume must be an original copy and must have a cover and back; the cover shall be of flexible and the back of rigid material. Exhibits are to be marked in numerical order, irrespective of the party producing them, and shall show the date on which they were marked. The sequential numbering of exhibits shall begin with the first hearing held in the case and continue until final disposition. The same number shall not be given to more than one exhibit in any case. If the pages of a multipage exhibit are not otherwise numbered, the official court reporter or private transcriber shall number the pages in sequence and shall in all instances mark such an exhibit so as to indicate the number of pages it contains. Ordinarily, exhibits or papers contained in the bill of exceptions should be placed in the record immediately following where they are ruled on by the court. If exhibits are frequently referred to in the testimony, they should be inserted in the record in such a manner as to be easily removed; for instance, by placing them in an attached envelope. If the exhibits are of such character or so numerous that to insert them in any volume containing testimony would make the volume cumbersome and difficult to handle while reading, then such exhibits should be contained in a separate volume. If exhibits are of such character that they cannot be inserted in a bound volume, then they should separately accompany the record. Whether in separate volumes or separately accompanying the record, all exhibits should be properly identified as part of the record in the official court reporter's or private transcriber's certificate. Except for documents, which term includes photographs and taped video and sound recordings, the bill of exceptions shall contain no item of physical evidence. The term "physical evidence" means any nondocumentary items as defined above and includes, but is not limited to, items such as weapons, contraband, wearing apparel, models, money, and body fluids. The party offering any nondocumentary item of physical evidence shall substitute therefor a photograph, not larger than 8½ by 11½ inches, which fairly and accurately depicts the item. If the party offering an item of nondocumentary evidence fails to provide a suitable substitute photograph, the court reporting personnel shall cause one to be made at the offering party's expense. The court reporting personnel shall in all instances preserve the nondocumentary item of physical evidence and shall make it available to the Supreme Court upon request. The bill of exceptions shall be visually neat. No typing errors or corrections shall be unduly noticeable. All corrections and additions shall be on the same line as the rest of the typed line; no insertion is permitted in the space between two lines of type. Corrections shall not be written in.

   (7) Video and Audio Exhibits and Depositions in the Nebraska Supreme Court.

   (a) Video exhibits and video depositions may be submitted to the court on either videotape or DVD. The court shall maintain video equipment capable of playback of VHS videotape and DVD‑Video.

   (i) The standard videotape for the Nebraska Supreme Court shall be VHS. If any other videotape, e.g., Beta, is presented to the court as an exhibit or deposition which is not able to be played back on VHS equipment, the party submitting the videotape shall provide at his or her own expense the appropriate equipment for playback.

   (ii) DVD's shall be created in a manner which will allow playback on standard DVD‑Video players and the format used to create the DVD, e.g., .mpeg, .avi, .mov, etc., must be stated on the DVD. If a DVD is presented to the court as an exhibit or deposition which is not able to be played back on the court's DVD‑Video equipment, the party submitting the DVD shall provide at his or her own expense the appropriate equipment for playback.

   (b) Audio exhibits and depositions may be submitted to the court on a cassette tape or an Audio CD or CD‑R in either .mp3 or .wav format. The court shall maintain equipment capable of audio playback of cassette tapes and Audio CD's and CD‑R's in .mp3 or .wav format. If any other type of audio recording is presented to the court which cannot be played back on the equipment maintained by the court, the party submitting the audio recording shall provide at his or her own expense the appropriate equipment for playback.

   (8) Delivery of the Bill of Exceptions to the Supreme Court; Certain Evidence Excluded. Upon request by counsel or the Clerk of the Supreme Court, the clerk of the district court shall send bound volumes and exhibits of the bill of exceptions to the Clerk of the Supreme Court. The clerk of the district court shall not be required to send any exhibits which may not be sent by United Parcel Service or the U.S. mail. It shall be the duty of the party wishing such exhibit, or an exhibit which is large and cumbersome, to be brought to the Supreme Court to arrange and pay for transporting the exhibit to the Supreme Court Clerk and to arrange and pay for return thereof to the clerk of the district court; provided, however, that if a request for such an exhibit is made by the Supreme Court, the appellant shall arrange and pay for transporting the exhibit to the Supreme Court Clerk and to arrange and pay for return thereof to the clerk of the district court. Under no circumstances shall the clerk of the district court send to the Clerk of the Supreme Court contraband, drugs, firearms, or other weapons, unless specifically requested to do so by the Supreme Court.

   (9) Applicability to Appeals From Tribunals Other Than District Court. These rules shall apply to all appeals and error proceedings where specific provision is not made by law for a bill of exceptions. Any court reporting personnel approved by the court, board, or tribunal from which the appeal or error proceedings is taken may attend and record the trial or proceedings and prepare a bill of exceptions, certified to be true and complete by such court reporting personnel, and file the same with the chief clerical officer of such court, board, or tribunal. Proposed amendments not agreed to shall be heard and determined by such court, board, or tribunal as provided in § 2‑105(B)(5). The completed bill of exceptions shall be filed in the reviewing court within the time provided by law and, if no time be fixed, before the case is submitted to the reviewing court.

   (10) Bills of Exceptions From Other Tribunals Filed in District Court. The clerk of the district court shall promptly forward any bill of exceptions from another tribunal filed in the district court to the court reporting personnel serving the district court judge to whom the case is assigned. Said court reporting personnel shall review the bill of exceptions for the purpose of determining whether it has been prepared in compliance with § 2-105(B)(6). If in the opinion of the court reporting personnel the bill of exceptions has not been so prepared, the court reporting personnel shall advise the judge to whom the case is assigned for such action as the judge deems appropriate.

   (11) Criminal Cases. In all criminal cases where a defendant shall feel himself or herself aggrieved by any decision of the district court, he or she may order a bill of exceptions, and the ordering, preparing, signing, filing, correcting, and amending thereof shall be governed by the rules established in such matters in civil cases. In criminal cases where the sentence is capital punishment, the clerk of the district court in which the conviction was had shall notify the court reporting personnel, who shall prepare the bill of exceptions as expeditiously as possible, but in no event to exceed the time limitations prescribed in § 2-105(B)(3)(a), unless an extension for such later filing is granted by the Supreme Court.

   (12) Statement of Cost. The certificate of the official court reporter or private transcriber shall include a statement of the cost of the bill of exceptions and a showing that such amount is one permitted to be charged by § 2-105(B)(1)(e) and Neb. Ct. R. § 1-219.

   (13) Case Stated. The parties may by agreement state the case to be presented to this court on appeal. The case stated shall briefly recite the facts out of which the questions of law arise, and also any substantial conflict in the evidence as to any fact involved. It shall separately identify and quote the rulings of the court complained of, with so much of the record as will fully show the law question involved in such ruling and the exceptions and contentions of the parties thereon. The case stated shall constitute the bill of exceptions. It must be allowed and certified by the judge who tried the case, filed with the clerk of the district court, made a part of the record of the district court as in other cases, and included therein when the transcript of the record is filed in this court.

Rule 5(C)(1) and (K) amended May 28, 1992; Rule 5(F)(3) amended November 25, 1992; Rule 5(A)(2) amended February 18, 1993; Rule 5(F)(3) amended May 26, 1993; Rule 5(J), (K), (L), and (M) amended September 14, 1994; Rule 5 amended in its entirety February 1, 1995; Rule 5(B)(6)(c) amended September 25, 1996; Rule 5(B)(3)(b) amended September 20, 2000; Rule 5(B)(3)(b)(i) amended June 5, 2002; Rule 5(B)(3)(d) amended Dec. 22, 2004; Rule 5(B)(1)(e) and (B)(12) amended June 22, 2005; Rule 5(B)(3)(b) and (B)(7) amended October 26, 2005; Rule 5(B)(3)b(i) amended January 19, 2006; Rule 5(B)(3)b(i) amended February 23, 2006; Rule 5(B)(6)(c) amended March 22, 2006; Rule 5(B)(1)(e) amended June 4, 2008, effective June 18, 2008. Renumbered and codified as § 2-105, effective July 18, 2008; § 2-105(B)(3)(b)(i) amended December 10, 2008; § 2-105 amended June 9, 2010.

This page was last modified on Thursday, January 10, 2013