dissenting.
I dissent only from that part of the opinion which holds that the misconduct alleged in the affidavits of two jurors and one alternate requires that the cause be remanded and the trial court directed to conduct a further evidentiary hearing to determine whether what was said by the jurors during the presubmission discussions prejudiced the plaintiff.
Neb. Rev. Stat. § 27-606(2) (Reissue 1989) severely restricts the evidence which can be considered in determining whether juror misconduct or prejudice occurred. Only evidence of “extraneousprejudicial information ... improperly brought to the jury’s attention” or “outside influence” improperly brought to bear upon any juror may be considered as the basis for remanding the cause in this case. (Emphasis supplied.) In this case there was neither.
As we said in Rahmig v. Mosley Machinery Co., 226 Neb. *851423, 455, 412 N.W.2d 56, 77 (1987):
In Neb. Evid. R. 606(2), the important phrase is “extraneous prejudicial information,” and within that phrase the crucial word is extraneous, which means “existing or originating outside or beyond : external in origin : coming from the outside . . . brought in, introduced, or added from an external source or point of origin.” Webster’s Third New International Dictionary, Unabridged 807 (1981).
I believe the majority opinion erroneously equates presubmission discussion among some of the jurors with extraneous prejudicial information or outside influence. It then declares that “[a]nything short of silence is juror misconduct” and appears to adopt a per se rule requiring the trial court in such cases to conduct extensive evidentiary hearings to determine whether prejudice occurred.
An example as to how this statute is applied in juror misconduct cases is found in Watkins v. Taylor Seed Farms, Inc., 295 Ark. 291, 748 S.W.2d 143 (1988). In the Watkins case, it was alleged that two jurors had made these comments in the presence of the jury:
(1) The first woman said, “W.B. ‘Tuffy’ Howard, (appellants’ attorney), got custody of some children for a man and after the man got custody of the children, he murdered them.” (2) A second woman replied, “Yes, that’s the kind of man he is.” These two jurors, whom Seymour claimed had made the remarks, also testified as a part of appellants’ offer of proof. The first one, Mary Seale, denied having made any statements about Howard, but did remember hearing someone make them. The second juror, Donna Cornelison, testified that the jurors had discussed the attorneys but that she did not make nor recall any remarks, as those described by Seymour, having been made in the presence of the jury.
295 Ark. at 292, 748 S.W.2d at 144.
The Arkansas court held that this was not evidence of extraneous prejudicial information that had improperly been brought to the jury’s attention. The court concluded by saying:
Nonetheless, Rule 606(b) ensures that jury deliberations *852should remain secret, unless it becomes clear that the jury’s verdict was tainted by a showing of extraneous prejudicial information or some improper outside influence. The evidence the appellants proffer here is not included in the exception under Rule 606(b), and, therefore, allowing the testimony, we believe, would violate the public policy that protects the privacy of the jury room.
295 Ark. at 294-95, 748 S.W.2d at 145.
While the older cases seem to support the rule that the trial court is required to admonish the jury that they are not to discuss the case among themselves until it has been submitted to them, some of the modern cases indicate the rule is not universal. In United States v. Klee, 494 F.2d 394, 395-96 (9th Cir. 1974), the court stated:
In support of a motion for a new trial, Klee presented an affidavit of one of the jurors which says that eleven of the fourteen jurors (including alternates) discussed the case during recesses and that nine of the jurors expressed premature opinions about Klee’s guilt. If the affidavit is true, the jurors disregarded the court’s admonition.
While we are aware that most judges give similar admonitions to juries, we have never had occasion to pass upon either the propriety of or the necessity for such an admonition. The circuits are not in agreement on the question. See, e. g., Winebrenner v. United States, 8 Cir., 1945, 147 F.2d 322; 23A C.J.S. Criminal Law § 1361 (1961). But cf. United States v. Carter, 10 Cir., 1970, 430 F.2d 1278, 1279; Rotolo v. United States, 5 Cir., 1968, 404 F.2d 316, 317; United States v. Viale, 2 Cir., 1963, 312 F.2d 595, 602.
(Emphasis supplied.)
, In United States v. Viale, 312 F.2d 595, 602 (2d Cir. 1963), the court stated:
It has never been the law of this circuit that the trial judge must, admonish the jurors not to discuss the case among themselves, although it has been the practice of most of the judges to suggest that it is advisable to refrain from such discussion until the case is concluded. Compare *853Myres v. United States, 8 Cir., 174 F.2d 329. In any event, we hold that the trial judge did not commit any error in this matter, especially since counsel did not request such an instruction, and since such an instruction was in fact given the second day of the trial.
It seems to me that the showing made by the plaintiff at the hearing on the motion for new trial in this case falls far short of the clear and convincing evidence that is required as a basis for remanding the cause.
Generally, the misconduct alleged in the affidavits offered by the plaintiff pertains to discussions that took place among certain of the jurors prior to the case’s being submitted to the jury for deliberation. The plaintiff offered five affidavits at the hearing on the motion for new trial. Four of the affidavits were from three jurors. The fifth affidavit was from an alternate juror who did not participate in the deliberations. Two of the affidavits related only to the thought processes of the jury and how the evidence and the instructions of the court influenced the verdict. These two affidavits clearly were inadmissible. A second affidavit from Gerald Klug, one of these jurors, mentioned discussion among a few jurors in the jury room as to how they felt certain factors were affecting the probable outcome of the trial. This affidavit contained a statement that “at no time were specific conclusions drawn from these comments.”
The affidavit of Pamela Bahn stated in part:
At each recess, Judge Clark instructed us not to discuss the case with our fellow jurors or others to make certain of a fair trial. However, unfortunately, several of the other jurors disregarded the Court’s instruction. Up until the last two days of the trial there was a lot of discussion regarding either the lawyers’ conduct or aspects of the case .... The comments were like one of the lawyers kept twitching with his hair, or, boy, this lawyer was good---- ,
Sharon L. Foster, who was the alternate juror, stated in her affidavit:
In my opinion some of the jurors violated the judge’s repeated instructions not to discuss the case until deliberations____
*854. . . The comments were in reference to the lawyers and doctors as well as Mrs. Hunt. These comments pertained to perceived competence or incompetence of all parties involved. A comment was made about Mrs. Hunt’s business management style.
(Emphasis omitted.)
The affidavits reveal that the jurors felt great sympathy for the plaintiff, who, without question, received a serious injury as a result of complications following the arteriogram procedure. They also show that on the basis of the evidence and the instructions, the jury was compelled to return a verdict for the defendants.
It is also clear from the affidavits that the alleged jury misconduct consisted only of discussions among the jurors themselves about such matters as the attorneys’ performance at trial and the case as presented by the evidence at the trial. There are no allegations that the jury considered extraneous prejudicial information or that outside influence was improperly brought to bear upon any juror.
There is no question that the jury’s disregard of the trial court’s admonition not to discuss the case prior to submission for deliberation was improper. The issue is whether there has been a sufficient showing by clear and convincing admissible evidence of misconduct and prejudice to require that the cause be remanded and further hearings held.
In State v. McDonald, 230 Neb. 85, 94, 430 N.W.2d 282, 288 (1988), this court held that where jury misconduct “involves juror behavior only, the burden to establish prejudice rests on the party claiming the misconduct.” In McDonald, evidence of alleged jury misconduct was presented at the hearing on the defendant’s motion for new trial. That evidence consisted of testimony by defense trial counsel’s wife that she overheard two jurors discussing evidence which had been presented at trial. We affirmed the trial court’s finding that the defendant was not prejudiced by the jury’s misconduct.
In this case, the majority opinion cites no case where the jury was properly admonished and instructed, but presubmission discussion of the case by the jurors was found to be so *855prejudicial as to require a new trial or a further hearing. Most of the cases cited in the majority opinion which found prejudice involved the jury’s considering extraneous information or being improperly influenced by outside sources.
In holding that the cause should be remanded and an evidentiary hearing held to determine what was said during presubmission discussion by some of the jurors and whether those discussions prejudiced the plaintiff, the majority cites State v. Steinmark, 201 Neb. 200, 266 N.W.2d 751 (1978). However, the Steinmark case involved alleged jury misconduct by consideration of extraneous prejudicial information during deliberation.
“ ‘Extraneous influence’ has been construed to cover publicity received and discussed in the jury room, consideration by the jury of evidence not admitted in court, and communications or other contact between jurors and third persons, including contacts with the trial judge outside the presence of the defendant and his counsel. By contrast, evidence of discussions among jurors, intimidation or harassment of one juror by another, and other intra-jury influences on the verdict... is not competent to impeach a verdict.”
United States v. Wilson, 534 F.2d 375, 378-79 (D.C. Cir. 1976), quoting Government of Virgin Islands v. Gereau, 523 F.2d 140 (3d Cir. 1975).
It is clear from the affidavits submitted at the hearing on the plaintiff’s motion for new trial that the only misconduct which the plaintiff alleges occurred was the jury’s violation of the trial court’s admonition not to discuss the case prior to deliberation. There are no allegations that any juror considered extraneous information or was improperly influenced by outside sources.
Winebrenner v. United States, 147 F.2d 322 (8th Cir. 1945), described as a seminal case in the majority opinion, was decided by a divided court. In that case the trial court had incorrectly instructed the jury that it was permissible for the jurors to discuss the case among themselves before the case had been submitted to them. In his dissent to the majority opinion which ordered that the judgments be reversed and the cause remanded for a new trial, Judge Woodrough observed that “[n]o normal *856honest Americans ever worked together in a common inquiry for any length of time with their mouths sealed up like automatons or oysters.” 147 F.2d at 330. He further stated, “The defendants had no right to, and I assume they had no interest to have the jurors subjected to extraordinary, suspicious and unnatural silence among themselves.” Id.
The trial court’s order overruling the plaintiff’s motion for a new trial and its not conducting a further hearing on the matter of the alleged jury misconduct were within the trial court’s discretion and should not be overturned except for an abuse of discretion. State v. Robbins, 207 Neb. 439, 299 N.W.2d 437 (1980); United States v. Nance, 502 F.2d 615 (8th Cir. 1974). See, also, U.S. v. Cuthel, 903 F.2d 1381 (11th Cir. 1990); United States v. Edwards, 696 F.2d 1277 (11th Cir. 1983); United States v. Campbell, 684 F.2d 141 (D.C. Cir. 1982); United States v. Wilson, supra.
I would affirm the judgment of the district court.
Grant, J., joins in this dissent.