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2.10 Use Of Trial Notebooks By Jurors

    2.10.1 Contents Of Trial Notebooks
    2.10.2 Trial Notebooks Cautionary Instruction

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 1 - CHAPTER 2

PRACTICE NOTE: One case discussed the contents of jury notebooks as follows:

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 1 - CHAPTER 2

RATIONALE: There may be a significant danger of undue emphasis if only certain instructions are included in the jurors’ notebooks.

POINTS AND AUTHORITIES: The use of juror notebooks for the purpose of providing jurors with copies of relevant written documents is an accepted practice, especially in complex civil litigation. (See e.g., Consorti v. Armstrong World Indus. (2d Cir. 1995) 72 F3d 1003, 1008; Herr, Annotated Manual for Complex Litigation (West, 3rd ed, 1999), Section 22.42 (1995), American Bar Association "Public Comment Draft No. 6 Civil Trial Practice Standards" (May 1997) St. 2.) "In addition to holding exhibits provided to individual jurors during the trial... notebooks may provide jurors with information that will be helpful to them to organize and retain the information adduced during the trial, such as witness and exhibit list, pictures of witnesses, chronologies and time lines, glossaries...and excerpts from instructions." (Herr, Annotated Manual for Complex Litigation (West, 3rd ed, 1999) § 22, p. 159.)

    However, there is a danger that the material in the notebooks, especially the "excerpts from instructions" will be over-emphasized by the jury. (See generally NCJIC 2.1.5 [Impropriety Of Piecemeal Written Instructions].) At a minimum a stipulation of both parties as well as a cautionary instruction would seem to be advisable, if not required. (See NCJIC 25.2.1 [Cautionary Instruction: Exhibits], see also NCJIC 25.2.8 [Availability Of Exhibits During Deliberations]; see also  NCJIC 25.2.9 [Avoiding Undue Influence By Waiting To Give Jurors Exhibits Until They Request Them].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3].

PRACTICE NOTE: Refusal to allow the plaintiff in defamation action, on motion for new trial based on juror misconduct, to examine a notebook prepared at home by a juror and brought into jury deliberations, to determine whether the notebook contained extrinsic, extraneous, or other inappropriate matter, was an abuse of discretion and required remand. Such examination would not have involved the jurors' impeachment of their verdict, but would have investigated the use of extrinsic matter that may have created a probability of prejudice. (See Aron v. Brock (MD 1997) 703 A.2d 208, 224.)

USE NOTE: For additional samples see NCJIC 285.2.3 [Admonition That Supplemental Instructions Have No Greater Weight Than Original Instructions].

    You have been given a juror notebook containing certain [exhibits] [and] [instructions] [and] [________________]. Keep in mind that you should consider anything contained in your notebook together with all the other evidence and instructions. Do not consider anything in your notebook by itself or, out of context. Consider all the evidence and instructions together as a whole.

[Source: Adapted from 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 9.01 [Supplemental Instructions In Response To Juror Questions] ¶ 3 (1991).]

    You have been given a juror notebook containing certain [exhibits] [and] [instructions] [and] [________________]. You must weigh all the evidence and consider all the instructions. You must not give undue credence to any single part of the evidence or instructions.

[Source: Adapted from U.S. v. Betancourt (6th Cir. 1988) 838 F2d 168, 175.]

    You have been given a juror notebook containing certain [jury instructions] [exhibits] [___________________]. By providing this notebook I do not emphasize anything in it over any other part of the evidence or instructions received during this trial.

[See OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, 4 OJI 415.10 [Additional Instruction Of Matters Of Law] (Anderson, 2000).]

    You have been given a juror notebook containing certain [exhibits] [and] [instructions] [and] [________________]. Do not place undue emphasis on anything in your juror notebook. Those materials should be carefully considered along with all the other evidence and instructions.

[See generally Leach v. State (TN 1977) 552 SW2d 407; cf. TENNESSEE PATTERN INSTRUCTIONS - CRIMINAL, T.P.I.-Crim 43.13 [Supplemental Instruction No. [__]] (West, 5th ed. 2000).]