Juror Notetaking and Juror Questions - Part Two

By John DiMotto

In my last post, I initiated a blog about the degree of juror involvement during the trial.

In days gone by - the 1970's and earlier - jurors were told to watch and listen and at the end of the case deliberate and reach a verdict. They were not allowed to take notes of the testimony, they were not even given the jury instructions in writing for use or reference during deliberations. Jurors were expected to rely upon their "superior" memories. Period. The idea was that there should be no extraneous distractions.

Starting in the 1980's, judges came to the conclusion that juror notetaking - allowing jurors to take notes during a trial - would enhance their ability to "get it right." Not everyone has the same powers of recollection or memory as others. In those cases where a judge decides that jurors may take notes, jurors are, that they do not have to take notes but may do so. There is a standard instruction on the process. I expand upon it in my own instructions.

I tell jurors that they can but do not have to take notes. I tell them not to let notetaking distract them from both watching and listening to the witnesses. This is because evidence comes in via words and demeanor. I tell them they should be careful, if they take a lot of notes, not to miss what a witness is saying while the jurors are hurriedly writing down something they have just heard and to keep in mind that how the witnesses says something has evidentiary significance. This is akin to the phrase "a picture says a thousand words." I also tell them, per the standard instruction, that they can use their notes to refresh their recollection during deliberations. Recently, I have decided to add to the instruction that jurors should not consider the extent to which I take notes during the trial to be a sign as to what is or is not important testimony. This is because I am aware that jurors look to the judge for guidance and I do not want them to think that if I am writing something down it must be important and if not that it is not important. I tell them that what I am writing is for a different purpose than their's. Mine is pertinent to the legal determinations whereas their's is pertinent to factual findings. Yes, I do get a bit wordy in my explanation, but it fully addresses the issue and helps the jurors work their way through the "tunnel" of the trial on the way to the "light at the end of the tunnel" - deliberations.

Juror notetaking is an important tool to assist jurors in doing their job - arriving at a fair and just verdict.