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16.8 Juror Notetaking

    16.8.1 Juror Notetaking: Procedural Issues

    16.8.1.1 Juror Notetaking: Permitted In Discretion Of The Court
    16.8.1.2 Courts May Not Require Jurors To Take Notes
    16.8.1.3 Benefits Of Juror Notetaking
    16.8.1.4 Disadvantages Of Juror Notetaking
    16.8.1.5 Deciding Whether Or Not To Oppose Juror Notetaking
    16.8.1.6 Juror Notetaking: Destruction Of Notes At End Of Trial
    16.8.1.7 Juror Notetaking: Due Process Grounds For Preserving Juror Notes
    16.8.1.8 Juror Notetaking: Federal Circuit Model Instructions And Notes 

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RATIONALE: The trial court in its discretion may determine that note taking by jurors will be permitted.

POINTS AND AUTHORITIES: The power of trial courts to authorize jurors to take notes is well established. Case law both explicitly confirms this power and implies its existence by conferring broad discretion on trial judges courts to allow and to prohibit juror note taking. (See e.g., State v. Wilson (OH 1996) 659 NE2d 292, 303 [trial court did not err in supplying jurors with notebooks and in instructing jurors that they could take notes during trial]; State v. Williams (OH 1992) 610 NE2d 545, 547-48 [court did not abuse its discretion in allowing jurors to take notes during trial and use their notes during deliberations]; American Bar Association, ABA Standards for Criminal Justice Discovery and Trial by Jury (ABA, 3rd ed., 1996) Std. 15-3.5 p. 203 ["during the trial of the case, the jurors should be permitted to make notes and keep these notes with them when they retire for their deliberations"]; but see U.S. v. Baker (9th Cir. 1993) 10 F3d 1374 [trial judge did not abuse discretion in declining to allow juror note taking in a case involving a 16-month trial period].)

    Accordingly, the jury is often generally instructed that it may take notes.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.5].

RESEARCH NOTES:

See also A Manual On Jury Trial Procedures [3.4.1 Notetaking By Jurors: General Principles].

See also Manual On Recurring Problems In Criminal Trials [15. Notetaking By Jurors].

See also generally, NCJIC 305.10.3 [Juror Notetaking].

See generally NCJIC 16.8.1.8 [Juror Notetaking: Federal Circuit Model Instructions And Notes].

    If you want to take notes during the course of the trial you may do so.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 3 [Notetaking By Jurors], alternative B (1988).]

    Because of the potential usefulness of taking notes, you may take notes during the presentation of evidence in this case.

[Price v. State (TX 1994) 887 SW2d 949, 954.]

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RATIONALE: Court mandated juror note taking is a disfavored practice, which arguably abridges defendants’ due process rights, by imposing a burden which could seriously interfere with some jurors’ ability to focus on the evidence. Since note-taking is more likely to distract less skilled note-takers than more skilled ones, mandatory juror note taking also creates inequalities between different jurors’ ability to hear trial proceedings, observe witness demeanor and perform other functions essential to the jury trial process.

POINTS AND AUTHORITIES: See e.g., U.S. v. Standard Oil Co. (7th Cir. 1963) 316 F2d 884, 896-97 [disapproving trial judge's compelling jurors to take notes, but holding that in this case compulsory note taking, even without advance notice to counsel before trial did not constitute reversible error].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.5].

See also A Manual On Jury Trial Procedures [3.4.1 Notetaking By Jurors: General Principles].

See also Manual On Recurring Problems In Criminal Trials [15. Notetaking By Jurors].

See also generally, NCJIC  305.10.3 [Juror Notetaking].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally NCJIC 16.8.1.8 [Juror Notetaking: Federal Circuit Model Instructions And Notes].

    If you want to take notes during the course of the trial you may do so.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 3 [Notetaking By Jurors], alternative B (1988).]

    If you don't want to use the notebooks, you don't have to.

[Price v. State (TX 1994) 887 SW2d 949, 950.]

    Note taking is permitted, but not required. Each of you may take notes. However, no one is required to take notes.

[Price v. State (TX 1994) 887 SW2d 949, 954.]

    You are permitted to take notes, if you wish, but you are not required to do so. By permitting you to take notes I am not urging or instructing you to do so.

[See generally Yeager v. Greene (App. DC 1985) 502 A2d 980, 988; Chambers v. State (IN 1981) 422 NE2d 1198, 1204; State v. Wilson (OH 1996) 659 NE2d 292, 303.]

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    16.8.1.3    Benefits Of Juror Notetaking

PRACTICE NOTE: Permitting jurors to take notes may improve the jury’s collective ability to fully and accurately review the trial evidence. "The reasons which favor permitting jurors to take notes during criminal and civil trials seem to this court both obvious and compelling. Notes assist jurors in recalling the evidence and the instructions, help some jurors to better understand and to focus attention on the testimony and evidence, aid jurors in organizing their thoughts during deliberations, and probably clarify issues during jury deliberations. Moreover, it seems likely that permitting jurors to take notes may insure a fuller discussion of relevant issues during jury deliberations." (Yeager v. Greene (App. DC 1985) 502 A2d 980, 989.)

    "There is empirical support for what would seem to be the self-evident propositions that (1) left only with their memories to rely upon, jurors' ability to accurately recall courtroom testimony is highly problematical, (2) note taking enhances recall even where the note taker does not retain his or her notes at the time recall is tested, (3) notes are a form of "external storage" available for review and reference at a later time, and (4) subjects who take notes and are provided with an opportunity to review them prior to a test of recall perform better than those who take notes and are not permitted to review them before such a test. A fortiori, it would appear that note takers who are able to retain their notes during a test of recall (e.g., jurors during jury deliberations after a trial) will be better able to remember what transpired than non-note takers." (Yeager v. Greene (App. DC 1985) 502 A2d 980, 989; see also Travis v. Commonwealth (KY 1970) 457 SW2d 481, 482 [juror note taking has become more common and should be encouraged, because as jury pools have become more educated, more jurors have note-taking skills, and the note-taking skills of those jurors have improved].)

See also A Manual On Jury Trial Procedures [3.4.1 Notetaking By Jurors: General Principles].

See also Manual On Recurring Problems In Criminal Trials [15. Notetaking By Jurors].

See also generally, NCJIC  305.10.3 [Juror Notetaking].

See generally NCJIC 16.8.1.8 [Juror Notetaking: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Disadvantages of juror note-taking which have been identified in case law and related scholarship include: "(1) jurors who take better notes will gain improper, disproportionate influence; (2) only a small number of jurors will be able to take notes because of the skills required; (3) inaccurate notes may be taken and relied upon; (4) jurors will be distracted from focusing on the testimony and evidence if they take notes; and (5) note taking may "prematurely inject jurors into the deliberative process." (Yeager v. Greene (App. DC 1985) 502 A2d 980, 990 [concluding these issues are remediable, and therefore do invalidate trial court discretion to permit jurors to take notes]; see also U.S. v. Baker (9th Cir. 1993) 10 F3d 1374, 1403 [concerns that jurors would be distracted from observing witnesses, would record the evidence selectively, or would rely on their own or other jurors' inaccurate notes justified trial court’s refusal to allow juror note taking during sixteen-month trial].)

See also A Manual On Jury Trial Procedures [3.4.1 Notetaking By Jurors: General Principles].

See also Manual On Recurring Problems In Criminal Trials [15. Notetaking By Jurors].

See also generally, NCJIC  305.10.3 [Juror Notetaking].

See generally NCJIC 16.8.1.8 [Juror Notetaking: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Whether or not to oppose juror note taking may depend on case specific factors. The benefits and risks of permitting juror note taking play out differently depending on the kinds of legal and factual distinctions defense counsel places before the jury, as well as jury composition and other considerations.

    For example where the defense asserts reasonable doubt based on a plausible but narrow factual scenario, note taking may increase the likelihood jurors will remember and fully consider that reasonable doubt scenario.

    On the other hand, if the defense turns on the credibility of a simple alibi, note taking may misdirect jurors’ attention away from relatively simple factual and credibility questions central to that alibi, toward the details of the charged offense. Detailed notes regarding such charged actions contribute nothing to the determination of whether the defendant was the perpetrator. Nevertheless, by reinforcing the negative emotional and moral tenor of the charged acts, such notes may well undermine jurors’ objectivity regarding the alibi issue.

See also A Manual On Jury Trial Procedures [3.4.1 Notetaking By Jurors: General Principles].

See also Manual On Recurring Problems In Criminal Trials [15. Notetaking By Jurors].

See also generally, NCJIC  305.10.3 [Juror Notetaking].

See generally NCJIC 16.8.1.8 [Juror Notetaking: Federal Circuit Model Instructions And Notes].

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RATIONALE: Destruction of juror notes immediately after trial is advocated in part because such notes may not be used to impeach a verdict under evidentiary rules which exclude evidence of the jurors’ thought processes during deliberations. E.g., FRE 606; see also Alexander, MAINE JURY INSTRUCTIONS MANUAL 4-6 [Instruction 5-B-Notetaking Allowed] (Lexis, 1999). Destruction of juror notes eliminates one possible source of juror intimidation. Fear of individual intimidation by defendants, co-defendants or victims, as well as fear of public censure all have potential chilling effects on juror deliberations. The possibility that notes will be scrutinized by the court or disclosed to interested parties or the public may discourage jurors from taking valid minority positions.

POINTS AND AUTHORITIES: It has been suggested that "jurors should be informed at the beginning of the trial that, at the close of the deliberations, all juror notes will be collected and destroyed." (American Bar Association, ABA Standards for Criminal Justice Discovery and Trial by Jury (ABA, 3rd ed., 1996), Std. 15-3.5 p. 203, 206; Yeager v. Greene (App. DC 1985) 502 A2d 980, 988; Chambers v. State (IN 1981) 422 NE2d 1198, 1204; State v. Wilson (OH 1996) 659 NE2d 292, 303.)

    But see NCJIC 16.8.1.7 [Due Process Grounds For Preserving Juror Notes].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.5; 6.7].

See also A Manual On Jury Trial Procedures [3.4.1 Notetaking By Jurors: General Principles].

See also Manual On Recurring Problems In Criminal Trials [15. Notetaking By Jurors].

See also generally, NCJIC  305.10.3 [Juror Notetaking].

See generally NCJIC 16.8.1.8 [Juror Notetaking: Federal Circuit Model Instructions And Notes].

    Your notes will be collected and destroyed after the trial. No one will be allowed to read them.

[See generally Yeager v. Greene (App. DC 1985) 502 A2d 980, 988; Chambers v. State (IN 1981) 422 NE2d 1198, 1204; State v. Wilson (OH 1996) 659 NE2d 292, 303.]

    At the end of the trial, after you have finished your deliberations, I will ask that each of you tear out your notes from your notebook and give them to your foreperson. In turn, I will ask the foreperson to give me your notes, and I will destroy them immediately after the return of your verdict. Again, neither I nor anyone else will look at any notes you have taken.

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PRACTICE NOTE: Notwithstanding some policy considerations favoring destruction of juror notes immediately after trial. (See NCJIC 16.8.1.6 [Destruction Of Notes At End Of Trial]) Destruction of juror notes may implicate the due process clause of the federal constitution and preclude defendants from obtaining evidence which might be relevant to juror misconduct. Certain kinds of evidence regarding external influences upon the jury deliberations or, in some jurisdictions, objectively verifiable statements or agreements by the jurors are admissible. (See NCJIC 288.4 [Defendant Should Be Permitted To Prove Juror Agreement To Disregard An Instruction].) Hence, there is a basis for requiring that juror notes be preserved to permit the defendant to pursue whatever avenues may be available on a motion for new trial, appeal or post-verdict writ proceeding. (See also NCJIC 300.1.16 [Unreliability Of Jury Verdict As Violation Of Due Process].)

See also A Manual On Jury Trial Procedures [3.4.1 Notetaking By Jurors: General Principles].

See also Manual On Recurring Problems In Criminal Trials [15. Notetaking By Jurors].

See also generally, NCJIC  305.10.3 [Juror Notetaking].

See generally NCJIC 16.8.1.8 [Juror Notetaking: Federal Circuit Model Instructions And Notes].

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See 1st Circuit Pattern Jury Instructions - Criminal 1.08.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.02.

See also 8th Circuit Model Jury Instructions - Criminal 1.06.

See also 9th Circuit Model Jury Instructions - Criminal 1.11.

See also 9th Circuit Model Jury Instructions - Criminal 7.3.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 2.2.

See also 11th Circuit Pattern Jury Instructions - Criminal TI 3.1.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 6.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 3.