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16.8 Juror Notetaking

    16.8.2 Instructions Regarding The Notetaking Process

    16.8.2.1 Cautionary Instruction On Juror Notetaking Required On Request
    16.8.2.2 Limited Purpose Of Juror Notetaking
    16.8.2.3 Juror Notetaking: One Juror Must Not Take Notes For Another
    16.8.2.4 Juror Notetaking Should Not Impair Jurors' Ability To Listen To And Consider All The Evidence
    16.8.2.5 Juror Notetaking: Individual Responsibility To Listen Carefully To Evidence Even If Juror Does Not Take Notes
    16.8.2.6 Juror Notetaking: Advising Jury As To Availability Of Readback Of Testimony
    16.8.2.7 Admonition To Limit Juror Notetaking To The Evidence And To Refrain From Recording Opinions About The Evidence In Notes
    16.8.2.8 Juror Notetaking Using Means Other Than Writing To Accommodate Juror Disabilities
    16.8.2.9 Juror Notetaking: Admonition To Refrain From Taking Notes Concerning The Jury Instructions
    16.8.2.10 Juror Notetaking On Counsel's Summations Or Arguments To The Jury
    16.8.2.11 Juror Notetaking: Advising Jury That Court May Refuse Readback Of Attorney Arguments To Jury
    16.8.2.12 Juror Notetaking: Notes Should Not Be Removed From Courtroom
    16.8.2.13 Repetition Of Instructions Regarding Juror Notetaking

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PRACTICE NOTE: Regardless of whether the trial court has a sua sponte duty to give cautionary instruction regarding note taking, it is error to fail to give the instruction upon request. (See People v. Morris (CA 1991) 53 C3d 152, 214-15 [279 CR 720] [better practice to give cautionary instruction on note taking, but no sua sponte duty exists]; People v. Silbertson (CA 1985) 41 C3d 296, 303 [221 CR 152]; People v. Pitts (CA 1990) 223 CA3d 606, 879-80 [273 CR 757].)

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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    16.8.2.2    Limited Purpose Of Juror Notetaking

RATIONALE: Jurors may not understand the purposes for which their notes may be used, or to limit the use of their notes to those purposes, unless they are so instructed.

POINTS AND AUTHORITIES: State v. Wilson (OH 1996) 659 NE2d 292, 303 [notes are to assist the jury]; Price v. State (TX 1994) 887 SW2d 949, 953-54 [trial court must determine if note-taking will help jurors].

    See also NCJIC 16.8.2.7 [Admonition To Limit Juror Notetaking To The Evidence And To Refrain From Recording Opinions About The Evidence In Their Notes].

    See also NCJIC 16.8.3.9 [Jurors Should Be Permitted But Not Required To Share Their Notes With The Other Jurors During Deliberations].

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].

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RATIONALE: Note taking is inherently individualized, reflecting impressions, interpretations and biases of the note taker. Allowing one juror to take notes for another interposes the note taker’s biases and perceptions between other jurors and the evidence.

POINTS AND AUTHORITIES: See e.g., Bolm v. Triumph Corp. (NY 1977) 397 NYS2d 498, 499-500 [trial judge committed reversible error by assigning one juror to record "key points" in jury charge].

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].

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RATIONALE: Jurors may become so busy taking notes as to certain evidence that their attention is diverted from other testimony and evidence.

POINTS AND AUTHORITIES: 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 [notes should not distract the juror from paying close attention to the ongoing testimony]; Price v. State (TX 1994) 887 SW2d 949, 953-54.

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].

    [I]t is difficult to take detailed notes and pay attention to what the witnesses are saying at the same time. If you do take notes, be sure that your taking of notes does not interfere with your listening to and considering all the evidence.

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

    Your primary objective is to hear evidence and testimony as it comes to you from the witness stand.

[State v. Wilson (OH 1996) 659 NE2d 292, 303.]

    Sometimes taking notes actually impedes one's ability to follow the testimony. If that's the case with you, simply put the notebooks aside and do not use them at all.

[Price v. State (TX 1994) 887 SW2d 949, 953-54.]

    I caution you that taking notes may interfere with your ability to observe the demeanor of witnesses and other events during the trial.

    If you choose to take notes, remember that notetaking may interfere with your ability to observe the evidence and witnesses as they are presented.

[See generally Yeager v. Greene (App. DC 1985) 502 A2d 980, 988; Price v. State (TX 1994) 887 SW2d 949, 953-54; Chambers v. State (IN 1981) 422 NE2d 1198, 1204; State v. Wilson (OH 1996) 659 NE2d 292, 303 [notes should not distract the juror from paying close attention to the ongoing testimony].]

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RATIONALE: Individual juror judgment may be undermined if a juror who does not take notes relies on other jurors who do.

POINTS AND AUTHORITIES: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 3 [Notetaking By Jurors], Alternative B (1988).

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].

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    16.8.2.6    Juror Notetaking: Advising Jury As To Availability Of Readback Of Testimony

RATIONALE: Readback of trial testimony may be preferable to authorization of juror note taking in that it avoids several dangers that note taking creates: These dangers include distraction of the jury from listening to the evidence, inaccuracies in jurors’ notes, distortions introduced into jurors’ notes by their individual biases and undue influence because of other jurors’ reliance on a particular jurors’ notes of proceedings.

    Moreover, if jurors are told that a read-back of testimony is available, this knowledge may reassure jurors that their notes need not cover every significant point. This instruction therefore frees jurors to focus fully on trial proceedings, and to avoid allowing note taking to distract them from this primary duty.

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

POINTS AND AUTHORITIES: "To prevent the jurors from placing improper importance on their notes, a court can instruct the jury...that in the event of disagreement, the jurors should request the disputed testimony be read from the official record." (Price v. State (TX 1994) 887 SW2d 949, 954; see also Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 3 [Notetaking By Jurors] (1988); NCJIC 16.8.3.2 [Jurors Should Consider Having Testimony Readback To Resolve Discrepancies Between Their Notes And Their Recollections]); but see NCJIC 16.8.2.11 [Advisement That Court May Refuse Readback Of Attorney Arguments To Jury]; see also NCJIC 284.1.2 [Readback Of Testimony: Deciding Whether To Grant Readback Request].)

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].

SAMPLE INSTRUCTION # 1 [Not Informing Of Read-Back Availability]:

    You will notice that we do have an official court reporter making a record of the trial. However, we will not have typewritten transcripts of this record available for use in reaching your decision in this case.

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

SAMPLE INSTRUCTION # 2 [Informing That Testimony May Be Read-Back]:

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RATIONALE: If jurors are permitted to include their comments, analysis or opinions in their notes there is a danger that this will promote premature deliberation or formation of opinions about the case.

POINTS AND AUTHORITIES: One of the recognized dangers of allowing juror note taking is that it may "prematurely inject jurors into the deliberative process." (Yeager v. Greene (App. DC 1985) 502 A2d 980, 990.) Hence, the jury should be instructed so as to limit this danger. (See also NCJIC 16.2.1 [No Premature Formation Of Opinion]; see also NCJIC 16.8.3.3 [Juror Notes Are Not Evidence].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.6; 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].

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

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RATIONALE: Alternative means of note taking needed by jurors with disabilities should be permitted, as long as that accommodation does not in some way prejudice the defendant. Refusal to accommodate excludes a class of people (those with certain kinds of disabilities) from juries. Such narrowing of jury composition is as likely to prejudice criminal defendants as would any distraction resulting from the use of alternative note taking procedures.

POINTS AND AUTHORITIES: Jurors with disabilities may need to use computers, braille writers, tape recorders or note-taking assistants. Denying these accommodations would be contrary to public policy, since it would exclude people with disabilities from jury service. It might also violate the American's With Disabilities Act of 1990 (42 USC 12101 et seq.) and/or comparable state statutes. It also restricts jury pool composition, making pools less than fully representative of the community. (See e.g., Alexander, MAINE JURY INSTRUCTIONS MANUAL 4-6 comment [Instruction 5-B-Notetaking Allowed] (Lexis, 1999) [alternative means of note-taking may be necessary to accommodate juror disability].)

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].

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RATIONALE: It is essential that jurors deliberate based on a single set of jury instructions. Jury instructions are closely crafted to differentiate elusive legal and analytical distinctions. Seemingly slight alterations in the wording of an instruction as given may significantly change its meaning. Therefore jury instructions should not be subjected to distortions arising from mistaken impressions or emphasis imparted through juror’s notetaking.

    Jurors cannot be expected to second-guess the technical legal and factual distinctions underlying an instructions’ final wording. Nor can they be expected to spontaneously see the dangers inherent in their taking independent notes on the instructions. Therefore, the trial court should emphasize that notetaking regarding jury instructions is prohibited.

POINTS AND AUTHORITIES: "The responsibility for explaining the law rests upon the court ... and not upon a designated lay juror who might or might not record statements of law accurately." (Bolm v. Triumph Corp. (NY 1977) 397 NYS2d 498, 499.)

    If the jurors are permitted to take notes regarding the jury instructions orally given by the judge, there is a danger that the jurors' notes will be inaccurate or incomplete thus resulting in an unreliable determination of the charge in violation of the state and federal constitutional principles of due process. (People v. Morales (NY 1990) 559 NYS2d 869, 869 [defendant deprived of a fair trial when trial judge permitted jurors to take notes, over objection, during supplemental charge].) This danger is heightened if the jury opts not to request copies of the written instructions. (But see People v. Tucker (NY 1990) 550 NYS2d 1, 1-2 [trial court did not err in permitting juror, over defendant's objection, to take notes during supplemental charge, where the trial court also gave cautionary instruction that any disagreement among jurors about law, especially a discrepancy between any juror's recollection and another juror's notes, required jury to request reinstruction].)

    See also NCJIC 16.8.3.3 [Juror Notes Are Not Evidence].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.2].

USE NOTE: It may cause the jurors to pay less attention to the oral rendition of instructions if they know that a written version will be available. Therefore, consideration should be given as to whether to give the unbracketed portion of the sample instruction. (See generally NCJIC 2.1.1 [Trend Toward Providing Jury With Written Instructions].)

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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    16.8.2.10    Juror Notetaking On Counsel’s Summations Or Arguments To The Jury

RATIONALE: Because the arguments or summation of counsel may not be read back to the jury, juror notes on the arguments may be particularly useful. On the other hand, the arguments are not evidence and notes on the arguments may give them undue emphasis.

POINTS AND AUTHORITIES: Because the trial court may refuse a request for readback of counsel's argument/summation, the jury should be permitted to take notes on the argument of counsel. (But see Price v. State (TX 1994) 887 SW2d 949, 954 [prohibiting note-taking regarding attorney arguments].)

    See NCJIC 16.8.2.11 [Advisement That Court May Refuse Readback Of Attorney Arguments To Jury].

    See NCJIC  284.2.4 [Readback: Arguments Of Counsel].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 11.4; 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].

SAMPLE INSTRUCTION # 1: [(Prohibiting Juror Note Taking Regarding Attorney Arguments]:

    Because of the potential usefulness of taking notes, you may take notes during the presentation of evidence in this case. However, you may not take notes during the arguments of the lawyers, or when the jury charge is read to you.

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

SAMPLE INSTRUCTION # 2: [Permitting Juror Note Taking Regarding Attorney Arguments]:

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RATIONALE: Jurors may wrongly conclude from instructions advising them that relevant proceedings may be read back, that attorney arguments may also be read back. This may cause the jurors to pay less attention to the arguments or take fewer notes than they would have if they had been aware that the arguments could not be read back.

POINTS AND AUTHORITIES: Standard jury instructions often inform jurors that they may take notes at their own discretion and that the trial transcript of relevant proceedings may be read back at the jurors request. (See e.g., CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 1.05. [Juror’s Use Of Notes] (West, 6th Ed. 1996).)  From such instructions jurors could incorrectly assume that a readback of all proceedings is available and pay less attention to or take fewer notes on the arguments of counsel. However, in some jurisdictions the jury has no right to a readback of the arguments of counsel. (See e.g., People v. Gordon (CA 1990) 50 C3d 1223, 1260 [270 CR 451]; see also People v. Turner (NY 1985) 488 NYS2d 271, 272; Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4:77 [General Instructions-Statements And Opinions Of Counsel And Court–Commentary] (West, 1999) [no read-back of opening statements].) Jurors should, therefore, be advised that they may have to rely on their own memories (and, where permitted, on their notes) regarding the arguments of counsel.

    See also NCJIC 284.2.4 [Readback: Arguments Of Counsel].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 11.4; 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].

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RATIONALE: Juror note taking outside of the courtroom (for example during a recess) creates the risk that discussions or occurrences outside the courtroom will affect the juror. Therefore jurors should be required to leave any notes inside the courtroom whenever they leave and should be admonished not to make any notes outside of court.

POINTS AND AUTHORITIES: Juror removal of notes from the courtroom or writing of notes outside the courtroom increases the likelihood that the notetaker will discuss or share those notes with other jurors prior to commencement of deliberations. Such discussions constitute a form of improper deliberation. (See e.g., Yeager v. Greene (App. DC 1985) 502 A2d 980, 988; Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 3 [Notetaking By Jurors] (1988); Chambers v. State (IN 1981) 422 NE2d 1198, 1204; State v. Wilson (OH 1996) 659 NE2d 292; Price v. State (TX 1994) 887 SW2d 949, 953-54.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.6; 7.3].

NOTE: This issue also implicates the juror's duty to refrain from forming opinions about the case prior to commencement of deliberations:

    See NCJIC 16.2.1.1 [Duty To Keep An Open Mind And Not Form Premature Opinions];

    See NCJIC 16.2.3 [Duty Not To Converse With Other Persons];

   See NCJIC 16.8.3.7 [Jurors Not To Discuss Notes Before Commencement Of Deliberations].

   See NCJIC 16.9.2.6 [Jurors Should Not Give Disproportionate Weight To Answers To Their Own Questions];

    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].

    Whenever there is a recess in the trial, please leave your notebooks and pencils on your seats. They will be left there during short recesses when I remain on the bench or the courtroom is locked, and they will be collected during overnight recesses and given to me to keep. At no time during or after the trial will anyone, including myself, look at any of your notes.

[Yeager v. Greene (App. DC 1985) 502 A2d 980, 988.]

    Do not take the notes with you at the end of the day. Be sure to leave them in the jury room.

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

    You are not permitted to take your notes out of the courtroom before the case is submitted to you for your deliberations. No one will read your notes while you are out of the courtroom.

[See generally Yeager v. Greene (App. DC 1985) 502 A2d 980, 981.]

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    16.8.2.13    Repetition Of Instructions Regarding Juror Notetaking

PRACTICE NOTE: Trial courts which authorize juror note taking should give cautionary instructions regarding such note taking at each phase of the trial. This repetition is necessary because some of the dangers note taking (such as interference with jurors’ direct attention to trial proceedings (see NCJIC 16.8.1.4 [Disadvantages Of Juror Notetaking]) are likely to creep back as note taking continues. Also, the restrictions on disclosing and using juror notes change as the trial progresses. Therefore it is important to remind jurors which restrictions apply at each stage. (See e.g., Price v. State (TX 1994) 887 SW2d 949, 954 [trial court must admonish jury at time it is impaneled on note-taking, and provide instructions on note-taking in jury charge at each phase of trial].)

    For example, while the note taking procedural instructions should logically be given before trial (see NCJIC 12.3.5 [Preliminary Instructions: Juror Notetaking]), the admonitions concerning use of the juror notes during deliberations (see NCJIC 16.8.2 [Instructions Regarding The Notetaking Process]) should logically be given in the final instructions prior to commencement of deliberations.

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].