Chapter 16

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16.8 Juror Notetaking

16.8.3 How Juror Notes Should Be Used

    16.8.3.1 Juror Note Taking: Notes Not To Take Precedence Over Recollection
    16.8.3.2 Juror Notetaking: Admonition To Have Testimony Readback To Resolve Conflicts Between Notes And Recollection
    16.8.3.3 Juror Notetaking: Notes Are Not Evidence
    16.8.3.4 Views Of Jurors Who Took Notes Should Not Be Given Greater Weight Or Consideration
    16.8.3.5 Juror Notetaking: Quality Of Notes Should Not Affect Weight Of A Juror's Opinion
    16.8.3.6 Memory Or Notes Of One Juror Not To Take Precedence Over Another
    16.8.3.7 Jurors Not To Discuss Notes Before Commencement Of Deliberations
    16.8.3.8 Jurors Should Not Give Added Weight To Evidence Simply Because Some Jurors Have Taken Notes On It
    16.8.3.9 Jurors Should Be Permitted But Not Required To Share Their Notes With The Other Jurors During Deliberations
    16.8.3.10 No Juror Notes: Availability Of Readback

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16.8.3.1 Juror Notetaking: Notes Not To Take Precedence Over Recollection

RATIONALE: Jurors should be advised not to favor notes over recollection because jurors’ note taking skills differ, and some juror notes may be incomplete or inaccurate.

POINTS AND AUTHORITIES: Most jurisdictions either instruct jurors to give their own memories precedence over notes, or not to accord greater weight to their notes than to than their memories. (See e.g., Yeager v. Greene (App. DC 1985) 502 A2d 980, 988; see also People v. DiLuca (NY 1982) 448 NYS2d 730, 734 [court must instruct jurors not to permit note-taking to distract them from ongoing proceedings and that jurors who do not take notes should rely on their independent recollection of the evidence and not be influenced by fact that another juror has taken notes]; State v. Triplett (WV 1992) 421 SE2d 511, 518 [juror who takes notes should still rely on memory in recalling the testimony]; 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Special Inst. 5 [Notetaking] (1997); MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 7/1/97 302.01 [Duties Of Judge And Jury] ¶ 6, sent. 4.) (Missouri Supreme Court Publications, 3rd ed. 1987).)

See also NCJIC 16.8.3.6 [Memory Or Notes Of One Juror Not To Take Precedence Over Another].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 6.7; 7.1].

RESEARCH NOTES:

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].

SAMPLE INSTRUCTION # 1:

Your notes only are intended to be a help to your memory. They should not take precedence over your own independent recollection of the evidence.

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

SAMPLE INSTRUCTION # 2:

Do not assume that your notes, or those of any other juror, are more accurate than your own recollection.

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

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16.8.3.2 Juror Notetaking: Admonition To Have Testimony Read Back To Resolve Conflicts Between Notes And Recollection

RATIONALE: If the jurors believe that they themselves must resolve a discrepancy between recollection and juror notes, there is a danger that the resolution will be inaccurate. There is no way to predict in every case whether a discrepancy is the result of inaccurate note taking or recollection; each have their own fallacies and can be inaccurate. Accordingly, care should be taken to assure that the jurors understand their right to a readback of testimony to resolve discrepancies.

POINTS AND AUTHORITIES: See Yeager v. Greene (App. DC 1985) 502 A2d 980, 988 [jury must be reminded that should any discrepancy exist between their recollection of the evidence and their notes, they should request that record of the proceedings be read back]; People v. Tucker (NY 1990) 550 NYS2d 1, 1-2 [cautionary instruction directed jurors to request reinstruction to resolve any contradiction between their recollections and their notes as to the law]; Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2:27 [Charging The Jury-Exhibits, Notes, Etc. In Deliberating Room] p. 81 (West, 1999) [better practice is to inform the jurors that they should ask to have testimony read back in order to resolve discrepancy between notes and recollection].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 6.7; 7.1].

RESEARCH NOTES:

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].

SAMPLE INSTRUCTION:

If there is a discrepancy between your notes and your own memory of the testimony which cannot be resolved, or if you simply cannot remember a portion of the testimony, you should consider asking to have the testimony read back to you. [If the discrepancy or lack of recollection concerns any fact essential to your decision on a required element of the charge, you must ask for a readback of the testimony.]

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16.8.3.3 Juror Notetaking: Notes Are Not Evidence

RATIONALE: An admonition that juror notes must be differentiated from evidence is necessary to assure that jurors recognize that it is the trial evidence, not their notes, that controls.

POINTS AND AUTHORITIES: "[T]o prevent the jurors from placing improper importance on their notes, a court can instruct the jury that jurors' notes are not to be considered as evidence..." (Price v. State (TX 1994) 887 SW2d 949, 954.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 6.7; 7.1; 7.3].

RESEARCH NOTES:

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].

SAMPLE INSTRUCTION # 1:

Juror notes taken during trial are not evidence.

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

SAMPLE INSTRUCTION # 2:

Understand that your notes are for your personal assistance, but they never will be evidence in the case. The evidence is what you hear in the testimony or what comes to you in the form of documents or physical exhibits admitted by the Court.

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

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16.8.3.4 Views Of Jurors Who Took Notes Should Not Be Given Greater Weight Or Consideration

RATIONALE: It is likely that some jurors will not take notes while others will. Absent instruction, the note-taking jurors may become more dominant or influential simply because of their notes.

POINTS AND AUTHORITIES: See Yeager v. Greene (App. DC 1985) 502 A2d 980, 988; see also Marshall, "A View from the Bench: Practical Perspectives on Juries," 147 U. Chi. Legal F. 153 (1990) [differences in note taking experience and skill create a danger that more skilled note takers will become the dominant jurors].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 6.7; 7.1; 7.3].

RESEARCH NOTES:

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].

SAMPLE INSTRUCTION # 1:

You should not be influenced by the fact that some jurors have taken more extensive or detailed notes than others. You must not give greater weight or consideration to a juror because he or she has taken notes. Similarly, you must not giver lesser weight or consideration to the opinion of a juror because he or she did not take notes.

SAMPLE INSTRUCTION # 2:

Those jurors who do not take notes should rely on their own memory of the evidence and should not be influenced by the fact that another juror has taken notes, since the notes only are for the note taker's personal use in refreshing his or her memory of the evidence.

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

SAMPLE INSTRUCTION # 3:

Do not assume that juror notes are an accurate record of the testimony and evidence presented at trial.

SAMPLE INSTRUCTION # 4:

Jurors may choose to supplement your observations and recollections by note taking or rely solely on your observations and recollections. The views of jurors who have taken notes should not be given greater weight simply because they took notes.

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

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16.8.3.5 Juror Notetaking: Quality Of Notes Should Not Affect Weight Of A Juror's Opinion

RATIONAL: Because of the likelihood that a some members of the jury may be more skilled note takers than the other members, and that some jurors will take significantly more organized or detailed notes than others, it is important to emphasize that equal consideration be given to the views of all jurors regardless of the quality of their notes.

POINTS AND AUTHORITIES: Marshall, "A View from the Bench: Practical Perspectives on Juries," 147 U. Chi. Legal F. 153 (1990) [differences in note taking experience and skill create a danger that more skilled note takers will become the dominant jurors].

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

RESEARCH NOTES:

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].

SAMPLE INSTRUCTION:

You should not be influenced by the fact that some jurors have taken more extensive or detailed notes than others. You must not give greater weight or consideration to a juror because he or she has more extensive or organized notes. Similarly, you must not giver lesser weight or consideration to the opinion of a juror because he or she took few or less organized notes than other jurors.

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16.8.3.6 Memory Or Notes Of One Juror Not To Take Precedence Over Another

RATIONALE: Jurors may assume that their own notes should take precedence over the notes or memory of other jurors. Therefore, instruction to keep an open mind in this regard may be appropriate.

POINTS AND AUTHORITIES: 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Trial Instruction 2.1 [Notetaking-Permitted] (1997).

See also NCJIC 16.8.3.5 [Quality Of Notes Should Not Affect Weight Of A Juror's Opinion].

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

RESEARCH NOTES:

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].

SAMPLE INSTRUCTION # 1:

Do not assume that any particular note you may have taken is necessarily more accurate than your memory or the notes or memories of other jurors. It is possible that your notes may not be completely accurate.

SAMPLE INSTRUCTION # 2:

    In this case you have been permitted to take notes during the course of the trial, and most of you -- perhaps all of you -- have taken advantage of that opportunity and have made notes from time to time.

    You will have your notes available to you during your deliberations, but you should make use of them only as an aid to your memory. In other words, you should not give your notes any precedence over your independent recollection of the evidence or the lack of evidence; and neither should you be unduly influenced by the notes of other jurors.

    I emphasize that notes are not entitled to any greater weight than the memory or impression of each juror as to what the testimony may have been.

[Adapted from 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Trial Instructions 2.1 [Notetaking Permitted] (1997).]

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16.8.3.7 Jurors Not To Discuss Notes Before Commencement Of Deliberations

RATIONALE: Pre-deliberation disclosure or discussion of notes may constitute premature deliberation based on an incomplete presentation of the case. This may improperly influence the jurors, precluding fully objective and open-minded consideration of subsequently presented evidence and arguments.

POINTS AND AUTHORITIES: Premature discussion of the case is jury misconduct which may undermines the presumption of innocence. (See NCJIC Constitutional Macro 309.7.6 [Premature Deliberations Or Formulation Of Opinion]; see also NCJIC 300.10.5 [Trial By Jury: Premature Discussion Or Deliberation Undermines Prosecution's Burden].) Therefore, when instructing the jury on note taking, it may be appropriate to include an admonition against discussing the notes before deliberations. (See Bauguess v. Paine (CA 1978) 22 C3d 626, 641 [150 CR 461] [jury instructed not to share notes with anyone, including fellow jurors "until the case is finally submitted to you..."]; see also State v. Triplett (WV 1992) 421 SE2d 511, 518-19; and see Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 3 [Notetaking By Jurors], alternative B (1988).)

See NCJIC 10.2.6 [Admonition Not To Converse During Voir Dire].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.6; 7.5].

RESEARCH NOTES:

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].

SAMPLE INSTRUCTION # 1:

If you take notes, do not discuss them with anyone before you begin your deliberations.

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

SAMPLE INSTRUCTION # 2:

I mentioned earlier that you must not discuss the case among yourselves until you begin to deliberate at the end of the trial, but by the same token if you begin to compare notes before the end of trial then that’s a form of deliberation. So, for the same reason, you must not look at each other’s notes or compare notes during the trial. So, if you miss something that you were trying to write down you can't look at your neighbor and say ‘what was that?’ Don't do that. It's from your notes and your notes only.

For this purpose each of you will be given a clipboard and note pad and pencil after opening statements. When you get the pad write only your name on the front sheet, just your name, so that we will know who it belongs to and then begin your notes on the second sheet; that way there is always a cover sheet and no one can inadvertently see your notes.

[State v. Triplett (WV 1992) 421 SE2d 511, 519.]

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16.8.3.8 Jurors Should Not Give Added Weight To Evidence Simply Because Some Jurors Have Taken Notes On It

RATIONALE: Jury note taking creates the risk that whatever facts or evidence jurors record in their notes will be given added weight above what that fact or evidence would otherwise deserve.

POINTS AND AUTHORITIES: See generally 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL (1997) SI 5 [Notetaking]; see also MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 3.09 [Notes Taken By Jurors] sent. 6 (West, 4th ed. 1999).

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

RESEARCH NOTES:

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].

SAMPLE INSTRUCTION:

Merely because another juror may have taken notes on certain evidence is not a reason to give that evidence greater weight.

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16.8.3.9 Jurors Should Be Permitted But Not Required To Share Their Notes With The Other Jurors During Deliberations

RATIONALE: Juror notes are primarily for the purposes of aiding the note-taker’s memory of trial testimony. Therefore jurors must feel free to record notes in whatever fashion benefits them. However, jurors may alter the format and censor the content of their notes if they believe those notes may be subject to scrutiny by other jurors, or by attorneys, or even by the public or news media. Such self-censorship undermines the utility of juror notes as an aid to memory. Such concerns also increase the effort jurors must invest in note-taking, heightening the danger that note-taking will distract jurors from trial testimony.

POINTS AND AUTHORITIES: "[Juror] notes should be used by the juror solely for the juror's purposes during the deliberations, and should be made available to other jurors solely at the discretion of the juror taking the notes. No person, other than the juror taking the notes, should have the right to view the notes." (American Bar Association, ABA Standards for Criminal Justice Discovery and Trial by Jury (ABA, 3rd ed., 1996), Std. 15-3.5 p. 203; see also 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; Price v. State (TX 1994) 887 SW2d 949, 953-54.)

See also NCJIC 16.8.1.6 [Destruction Of Notes At End Of Trial].

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

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 6.7; 7.1; 7.3].

RESEARCH NOTES:

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].

SAMPLE INSTRUCTION # 1:

Your notes are for your own personal use in refreshing your recollection of the evidence. You need not disclose or discuss your notes with the other jurors unless you choose to do so. Your notes will remain confidential after trial.

SAMPLE INSTRUCTION # 2:

Your juror notes may be shown to or discussed with other jurors after deliberations have commenced.

SAMPLE INSTRUCTION # 3:

Do not disclose or discuss your notes with any other juror until you begin your deliberations. You may disclose and discuss your notes with the other jurors during deliberations but you are not required to do so.

SAMPLE INSTRUCTION # 4:

During deliberations, if you choose to do so, you may use your notes and discuss them with other jurors. However, you must not discuss or share your notes with any other juror until you begin your deliberations.

[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.]

SAMPLE INSTRUCTION # 5:

During the trial I have permitted jurors to take notes. You may take your notes with you to the jury room and use them during your deliberations if you wish.

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

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16.8.3.10 No Juror Notes: Availability Of Readback

RATIONALE: If the jurors are not permitted to take notes during trial, it is especially important that the jurors be aware of the availability of a readback of selected testimony.

POINTS AND AUTHORITIES: See NCJIC 16.8.2.6 [Juror Notetaking: Advising Jury As To Availability Of Readback Of Testimony].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 6.7; 7.1].

RESEARCH NOTES:

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].

SAMPLE INSTRUCTION:

If you cannot recall a part of the testimony, or if you are uncertain or unable to agree about a part of the testimony, you may request that the testimony be read to you.