Can a Judge Properly Encourage Juror Notetaking?
June 12th, 2019

The practice of jury notetaking is approved by Penal Code § 1137, but the CSC has cautioned that notetaking creates risks that:


  1. More significance will be placed by the jurors on their notes than on their own independent recollection.
  2. Notetaking may accentuate irrelevancies and ignore more substantial issues and evidence.
  3. Notes could unduly influence other jurors.
  4. Notetaking may cause the juror not to pay sufficient attention to the behavior of witnesses.


In People v. Whitt (1984) 36 Cal. 3d 724, 746-47 the CSC acknowledged that other jurisdictions “found error in [a court’s] failure to give [a] cautionary instruction” regarding the risks of note-taking, but we merely opined that giving such an instruction is “the better practice.” Since then the Court has held that the trial court is not required to give such an instruction. (People v. Marquez (1992) 1 Cal.4th 553, 578.)


In People v. Gomez (Ruben P.) (2018) 6 Cal.5th 243 Gomez argued that by sternly advising the jury against “not taking enough notes,” the trial court “elevated the importance of juror notetaking over observation of the witnesses” and therefore interfered with the jury’s “unique and exclusive responsibility and power to evaluate the credibility of witnesses.” Gomez highlighted a number of admonitions by the trial judge, including that he would be “very discouraged” to “see jurors just sitting there with their notes in their lap and it won’t be recorded in your memories because you aren’t trying to take those notes”; that the “thing that infuriates [the trial court] the most about jurors is when they first go in to deliberations and the first hour or two [the court] get[s] a note sent out saying [the jury] want[s] a reread of the testimony …”; that jurors should “take a lot of notes”; and that taking notes was part of their “job in recording the information.”


The CSC rejected the defense arguments and concluded as follows:


Nonetheless, the CSC has held it is not necessary to instruct the jurors to be cautious about the use of notes. For example, in People v. Gomez (Ruben P.) (2018) 6 Cal.5th 243, the CSC concluded that:


  1. The trial court’s admonitions to jurors to take close notes could not be understood as an instruction to jurors that they should prioritize notetaking at the expense of their duty to make credibility determination.
  2. The court’s emphasis on notetaking did not direct the jury to elevate notetaking over observing witnesses and evidence, but rather served to caution the jury that notetaking can supplement credibility determinations and ensure that the jury deliberations would not be impeded by needless requests for readback of testimony.
  3. There was no risk the jury would be impeded from requesting readback if they determined they needed it. (Id. at 301.)


But see, Forecite F 102 JUROR NOTE TAKING