Whether To Encourage Juror Note Taking At Trial?

While the practice varies, trial judges generally have discretion on whether jurors may take notes during the trial; recently the Seventh Circuit weighed in on this issue and encouraged that jurors be permitted to take notes as a recommended practice, in United States v. Causey, _ F.3d _ (7th Cir. March 28, 2014) (No. 13–1321); a survey of other jury instructions from around the country highlights different practices and model language

The Seventh Circuit recently had the opportunity to consider whether jurors should be encouraged to take notes at trial. The issue arose in the context of a challenge to the admission of photographs in a mortgage fraud trial.

Admitting Photographs Taken A Few Years After The Conspiracy Ended

In the mortgage fraud conspiracy trial, the government offered photographs of houses used in the scheme three to six years after the conspiracy ended and close to trial. After the defendants were convicted, they challenged the admission of the photographs at trial as irrelevant (since they were taken after the conspiracy ended), under FRE 401, or unfairly prejudicial (since some photographs showed the properties in disrepair), under FRE 403.

The Seventh Circuit concluded that the photographs “were relevant because they presented the jury with the layout, size, location and composition of the houses, and also aided various witnesses in explaining their experiences.” The circuit also found that the photographs were not unfairly prejudicial, despite showing the properties in disrepair since the parties had taken steps to mitigate the prejudice. These steps included reminders about when the photographs were taken, testimony about the condition of the properties, and a government chart “detailing which photos were taken and when.” Causey, _ F.3d at _.

The Seventh Circuit then explained:

We understand from statements the government made at oral argument that at least one mitigation effort, the chart, was necessary because jurors were not allowed to take notes during trial. While the decision whether to allow jurors to take notes remains in the discretion of the trial court, we have consistently encouraged the practice of allowing jurors to take notes and have acknowledged as much by incorporating the practice into the Seventh Circuit Pattern Criminal Jury Instructions. A judge would not try a bench trial without the ability to take notes, even though the trial transcript can be generated post‐trial. It is difficult to understand why jurors should not have the same opportunity to take notes.

Causey, _ F.3d at _ (citations omitted). The circuit noted the following model jury instruction:

  • Seventh Circuit Pattern Criminal Jury Instruction 3.18 (2012 ed) (“If you have taken notes during the trial, you may use them during deliberations to help you remember what happened during the trial. You should use your notes only as aids to your memory. The notes are not evidence. All of you should rely on your independent recollection of the evidence, and you should not be unduly influenced by the notes of other jurors. Notes are not entitled to any more weight than the memory or impressions of each juror.”) (Committee Comment: "This instruction is adapted from Seventh Circuit Pattern Civil Jury Instruction 1.07.")

The circuit also cited to two of its prior cases:

  • United States v. McGee, 612 F.3d 627, 633–34 (7th Cir. 2010) (suggesting juror note taking helps address the issue of the "jurors' attention and memory" waning)
  • Moore v. Knight, 368 F.3d 936, 941 (7th Cir. 2004) (reversing denial of writ of habeas corpus and noting that jurors’ faulty memories may have been influenced, in part, by the fact "that the jurors were not allowed to take notes" at trial)

Comparing The Practice In Other Jurisdictions

The practice and instructions given to jurors about taking notes varies depending on the jurisdiction. Most jurisdictions recognize that the trial judge has discretion on whether to allow the jury to take notes at trial. See, e.g., United States v. Bassler, 651 F.2d 600, 602 (8th Cir. 1981); United States v. Rhodes, 631 F.2d 43, 45 (5th Cir. 1980) ("Allowing jurors to take notes and use them during deliberations is a matter within the discretion of the trial court; absent abuse of discretion, the action of the trial court will not be disturbed.") (collecting cases); United States v. Maclean, 578 F.2d 64, 65-66 (3d Cir. 1978) (quoting The Report of the Judicial Conference Committee on the Operation of the Jury System, 26 F.R.D. 411, 424 (1960) ("Trial jurors should, in the discretion of the trial judge, be permitted to take notes for use in their deliberations regarding the evidence presented to them and to take these notes with 66*66 them when they retire for their deliberations. When permitted to be taken, they should be treated as confidential between the juror making them and his fellow jurors."); United States v. Johnson, 584 F.2d 148, 157-58 (6th Cir. 1978) ("It is within the sound discretion of the trial judge to allow the jury to take notes during the course of a trial and to use them during deliberations. ") (collecting cases); United States v. Riebold, 557 F.2d 697, 705–06 (10th Cir. 1977) ("the trial court did not abuse its discretion in allowing the jurors to take notes") (citing other cases).

Some judges have expressed concerns that juror note taking may distract them from following the evidence at trial. See, e.g., United States v. Baker, 10 F.3d 1374, 1403 (9th Cir. 1993) ("The district court articulated a number of reasons for denying the motion, including 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. The ongoing argument over the validity of these concerns is not for us to decide. The district court did not abuse its broad discretion in declining to allow juror notetaking."); United States v. Darden, 70 F.3d 1507, 1536-37 (8th Cir. 1995) ("Note taking by jurors is not a favored procedure. As we have stated, trial courts are properly concerned that the juror with the most detailed notes, whether accurate or not, may dominate jury deliberations. Id. The length and complexity of this trial does not diminish that concern. Indeed, in a long and complex trial the juror with the better notes may more easily dominate deliberations.") (citation omitted)

Comparing Other Model Jury Instructions

Some circuits, such as the Third, Fifth and Tenth Circuits, provide two model jury instructions, one permitting and one disallowing note taking. The following instructions are illustrative from other circuits:

  • Pattern Criminal Jury Instructions for the District Courts of the First Circuit (District Judge D. Brock Hornby), Instruction 1.08 (Notetaking) (2011) ("I am going to permit you to take notes in this case, and the courtroom deputy has distributed pencils and pads for your use. I want to give you a couple of warnings about taking notes, however. First of all, do not allow your note-taking to distract you from listening carefully to the testimony that is being presented. If you would prefer not to take notes at all but simply to listen, please feel free to do so. Please remember also from some of your grade-school experiences that not everything you write down is necessarily what was said. Thus, when you return to the jury room to discuss the case, do not assume simply because something appears in somebody's notes that it necessarily took place in court. Instead, it is your collective memory that must control as you deliberate upon the verdict. Please take your notes to the jury room at every recess. I will have the courtroom deputy collect them at the end of each day and place them in the vault. They will then be returned to you the next morning.")
  • Third Circuit Criminal Jury Instruction 1.05 (Note Taking by Jurors) (providing optional instructions for permitting or forbidding note taking)
  • Fifth Circuit Pattern Criminal Jury Instructions 1.02 (Note-Taking By Jurors) (2001) (providing optional instructions for permitting or forbidding note taking)
  • Sixth Circuit Pattern Criminal Jury Instructions 8.10 (Juror Notes) (June 13, 2011) ("(1) Remember that if you elected to take notes during the trial, your notes should be used only as memory aids. You should not give your notes greater weight than your independent recollection of the evidence. You should rely upon your own independent recollection of the evidence or lack of evidence and you should not be unduly influenced by the notes of other jurors. Notes are not entitled to any more weight than the memory or impression of each juror. (2) Whether you took notes or not, each of you must form and express your own opinion as to the facts of the case.")
  • Manual Of Model Criminal Jury Instructions for the District Courts Of The Eighth Circuit 1.06A (No Transcript Available -- Note-Taking) (2013) ("At the end of the trial you must make your decision based on what you recall of the evidence. You will not have a written transcript to consult, and it may not be practical for the court reporter to read [play] back lengthy testimony. You must pay close attention to the testimony as it is given. [If you wish, however, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. And do not let note-taking distract you so that you do not hear other answers by the witness.] [When you leave at night, your notes will be secured and not read by anyone.]") (brackets provide options; footnotes omitted)
  • Ninth Circuit Manual of Model Criminal Instructions 1.10 (Taking Notes) (2010) ("If you wish, you may take notes to help you remember the evidence. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note-taking distract you from being attentive. When you leave court for recesses, your notes should be left in the [courtroom] [jury room] [envelope in the jury room]. No one will read your notes. Whether or not you take notes, you should rely on your own memory of the evidence. Notes are only to assist your memory. You should not be overly influenced by your notes or those of your fellow jurors.")
  • Tenth Circuit Criminal Pattern Jury Instructions (Note-Taking by Jurors) (2011) (providing optional instructions for permitting or forbidding note taking)
  • Eleventh Circuit Pattern Jury Instructions, Special Instruction 5 (Note-taking) (2010) ("You’ve been permitted to take notes during the trial. Most of you – perhaps all of you – have taken advantage of that opportunity. You must use your notes only as a memory aid during deliberations. You must not give your notes priority over your independent recollection of the evidence. And you must not allow yourself to be unduly influenced by the notes of other jurors. I emphasize that notes are not entitled to any greater weight than your memories or impressions about the testimony.")

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