Return to CALJIC Part 1-2 – Contents
F 1.05 n1 Juror Note Taking: Research Notes.
See Annotation, Taking and use of trial notes by jury, 14 ALR3d 831 and Later Case Service; see also, Annotation, Taking and use of trial notes by jury, 36 ALR5th 255 and Later Case Service.
F 1.05 n2 Juror Note Taking: Required Upon Request.
Regardless of whether the trial court has a sua sponte duty to give CJ 1.05 on note taking, it is error to fail to give the instruction upon request. (People v. Pitts (90) 223 CA3d 606, 879-80 [273 CR 757]; see also People v. Morris (91) 53 C3d 152, 214-15 [279 CR 720] [better practice to give CJ 1.05 but no sua sponte duty].)
But see FORECITE F 1.05 n6; F 102 Note 4.
F 1.05 n3 Juror Note Taking: Destruction Of Notes At End Of Trial.
The commentary to the ABA Standards for Criminal Justice, Discovery and Trial by Jury (3rd ed 1996), Std. 15-3.5 p. 206 states: “The judge should collect the notes at the end of the trial. Notes should be used by the jurors for the purposes of deliberation only, and they are to be destroyed.”
California law does not specifically address this issue, but as a matter of common practice, jurors are often allowed to take their juror notes home with them at the conclusion of the trial.
However, allowing the jurors to take their notes home or destroying the juror notes could potentially implicate federal constitutional due process principles by precluding the defendant from obtaining evidence which might be relevant to juror misconduct during a motion for a new trial or during a separate habeas proceeding.
F 1.05 n4 Whether Court Must Inform Jury It May Request Readback Of Testimony.
See FORECITE F 17.50a.
F 1.05 n5 Court Must Inform Jury It May Request Readback Of Testimony.
“In order to implement a jury’s right to be fully apprised of the evidence and to protect the defendant’s right to a fair trial, the jury must be informed it may request a readback of testimony.” (People v. Montaque DEPUBLISHED (2002) 95 CA4th 1241 [116 CR2d 353, 357].) “The court need not utilize CALJIC Nos. 1.05 or 17.43 for this purpose, but it must, in some fashion, inform the jurors that the readback procedure exists.” (Id.)
See FORECITE F 17.50a.
F 1.05 n6 Note-Taking: Whether A Judge “Must Inform” Jurors “At Beginning Of Trial”
The Use Note to CJ 1.05, citing People v. Whitt (1984) 36 C3d 724, 747, advises that (1) a note taking instruction is not required sua sponte and (2) such an instruction may be given at “the outset or at the conclusion of trial, or both.” However, Rule 2.1031 states that the judge – at the beginning of trial – “must inform” the jurors that they may take notes and provide them with “materials suitable for that purpose.” Whitt expressly declined to decide whether a note-taking instruction was required. (But see People v. Morris (1991) 53 C3d 152, 214-15 [better practice to instruction but no sua sponte duty].)
See also FORECITE F 0.50a; CHK V.
NOTE: California by enactment of PC 1137 has “given implicit statutory approval” to juror note-taking. (People v. Whitt, 36 C3d at 747.)
F 1.05a Juror Note Taking: Advisement That Argument Of Counsel May Not Be Read-Back To The Jury
*Add the following to CJ 1.05:
A request for read-back of the arguments of counsel may be refused. Therefore, you may be required to rely solely upon your own recollection or notes as to what was said during argument.
Points and Authorities
CJ 1.05 informs the jurors that they may take notes at their own discretion and that the trial transcript of relevant proceedings will be read-back at the jurors request. From this instruction, the jurors could conclude that a read-back of all proceedings is available and, therefore, not take notes under the assumption that the transcript could be read-back. However, the jury has no right to a read-back of the arguments of counsel. (See People v. Gordon (90) 50 C3d 1223, 1260 [270 CR 451].) The jurors should, therefore, be advised that they may have to rely on their own memories or notes regarding the arguments of counsel.
ALTERNATIVE FORM:
“If you want to take notes during the course of the trial you may do so. However, it 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 you’re taking of notes does not interfere with your listening to and considering all of the evidence. Also, if you take notes, do not discuss them with anyone before you begin your deliberations. Do not take the notes with you at the end of the day. Be sure to leave them in the jury room.
If you choose not to take notes, remember it is your own individual responsibility to listen carefully to the evidence. You must not give this responsibility to someone who is taking notes. We depend upon the independent judgment of all members of the jury; you must each individually take responsibility for remembering the evidence in this case.
You will notice that we do have an official court reporter making a record of the trial. However, although the testimony may be read-back orally if necessary, we will not have typewritten transcripts of this record available for use in reaching your decision in this case.
Points and Authorities
Adaption of Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. # 3, pp. 8-9.
F 1.05b Juror Note Taking: Confidentiality
*Modify CJ 1.05 ¶ 3, last sentence, to provide as follows. [Added language is capitalized; deleted language is between <<>>:]
Notes are for the note-taker’s own personal use in refreshing his or her recollection of the evidence AND MUST REMAIN CONFIDENTIAL.
[YOUR JUROR NOTES MAY BE SHOWN TO OR DISCUSSED WITH OTHER JURORS AFTER DELIBERATIONS HAVE COMMENCED.]
Points and Authorities
One of the recognized dangers from allowing juror note taking is that a juror’s notes — which may be inaccurate, incomplete, or misleading — may influence the other jurors. (People v. Whitt (84) 36 C3d 724, 726 [205 CR 810].) Therefore, the jurors should be instructed that their notes are to be confidential. (See State v. Waddell (96) 661 NE2d 1043 [75 Ohio St. 3d 163].)
The ABA Standard on note-taking by jurors provides as follows:
“During the trial of the case, the jurors should be permitted to make notes and keep these notes with them when they retire for their deliberations.
a. The 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.
b. The jurors should be informed at the beginning of the trial that, at the close of the deliberations, all juror notes will be collected and destroyed.”
(ABA Standards for Criminal Justice, Discovery and Trial by Jury (3rd ed 1996), Std. 15-3.5 p. 203.) This standard contemplates that the confidentiality of juror notes does not extend to showing notes to other jurors. (See also Bauguess v. Paine (78) 22 C3d 626, 641 [150 CR 461] [jury was instructed not to share their notes with anyone, including fellow jurors “until the case is finally submitted to you…”].)
CJ 1.05 fails to expressly convey any requirement of confidentiality and, therefore, should be revised as set forth in the first sentence of the above instruction. The last sentence of the above instruction is bracketed to allow for modification depending upon how the jurors will be instructed on the issue of sharing their notes with other jurors.
F 1.05c Juror Note Taking: Jury Notes On The Jury Instructions
*Add to CJ 1.05:
However, as I previously instructed you, do not take notes regarding any jury instructions which I have or may, in the future, give to you. You may request written instructions and should abide by those written instructions.
Points and Authorities
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. (See People v. Morales (90) 559 NYS2d 869 [159 AD2d 2d 86] [defendant deprived of a fair trial when trial judge permitted jurors to take notes, over objection, during supplemental charge].) In California, there is a similar danger, especially if the jury opts not to request copies of the written instructions.
F 1.05d Juror Note Taking: Juror’s Right To Take Notes On Counsel’s Argument
*Modify the third sentence of the third paragraph of CJ 1.05 as follows [added language is capitalized:]
Notes are for the note-taker’s own personal use in refreshing his or her recollection of the evidence, OPENING STATEMENTS AND ARGUMENTS OF COUNSEL [OR VIEW OF THE SCENE].
Points and Authorities
PC 1137 implicitly approves juror note taking of “the testimony and other proceedings on the trial…” (See People v. Thompson (88) 45 C3d 86, 119 [246 CR2d 245].) Presumably “other proceedings” include matters such as a jury view of the scene, the opening statements and closing arguments of counsel. (However, the jurors must not take notes on the instructions. See FORECITE F 1.05c.)
Accordingly, CJ 1.05 should be modified so that it is not limited to the testimony.
NOTE: The jury has no right to a readback of the arguments of counsel. (See FORECITE F 1.05a.)