I was a juror in a recent civil trial regarding an accident case. I was surprised that I was not allowed to take notes during the trial. Although I could go home every night during the trial. I really believe I could have done a better job with the deliberations if I took notes. Why wasn’t I allowed to take notes during the trial?
Uniform Court Rule 22 NYCRR § 220.10 expressly allows a presiding judge to permit jurors to take notes during trial. The court rule states that the presiding judge should decide whether or not to allow note taking after the jury is sworn in and before opening statements. (However case law appears to modify this rule by allowing the judge to permit note taking at any time before the end of the trial.)
This author has never seen a civil trial in state court (federal court rules are different) in which the judge has allowed note taking by jurors. There are numerous reasons for this.
Rules for Juror Note Taking
First, the Court needs to supply paper and pen to all jurors who want to take notes. Second, it is up to the court officers overseeing jury security to take possession of and secure the notes at the end of every court session. Third, the judge will instruct the juror taking notes to only use the notes for refreshing that individual juror’s recollection. Fourth, the judge will instruct jurors to ask the court reporter to read back testimony of witnesses if there is any discrepancy about the recall of testimony during jury deliberation. Fifth, the court officer overseeing the jury collects jurors’ notes at the end of the case. The judge, parties or lawyers can never read the notes.
Attorneys and judges alike worry that these instructions will be ignored. If the instructions are ignored, the case would then be tried through the viewpoint of the one or two jurors taking notes during the trial, not six people working together. Judges worry that one or two note takers during trial may have a bias not revealed during jury selection. Then other jurors not taking notes may take the word of the juror taking notes and believe that person.
Practical Problems
Jury trials have many potential problems. One problem you highlight is jury sequestration. Judges do not sequester civil juries. So when jurors go home every night during a trial, the juror might discuss the case with their families or roommates. (Jurors could easily see discussion of the case as innocent sharing of the events of a person’s day.) Jurors may be tempted to discuss the case with each other before they are allowed to discuss it at the end of the case. But they cannot deliberate until the judge’s final instructions on the applicable law.
Almost all judges do not allow jurors to take notes. It is not a perfect solution. But not allowing note taking eliminates the possibility of many other problems.
By James Santner, Esq.
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