Error to Imply That Juror Notes Are per se Less Accurate than Reporter’s
March 11th, 2021

It is well established that the jurors have a right to request readback of testimony during their deliberations. (See e.g., People v. Triplett (2020) 48 Cal.App.5th 655, 662 [If the jury requests transcripts, the court should remind the jury of the right to request readback and to advise the court whether there is any testimony they want read].)


The final paragraphs of CC 104, 202, and CC 222 advise the jurors of their right to request a readback of testimony with the admonition that “you must accept the (court reporter’s record/court’s recording)as accurate.”

However, there is no legal basis for requiring a juror to accept the court reporter’s notes over the juror’s own recollection and/or notes. (See e.g., People v. Smith (2005) 135 CA4th 914, 925 [assuming juror notes were “accurate”].) To the contrary, the cases and Rules of Court recognize the fallibility of the court reporter’s record by providing comprehensive procedures to correct it. (See e.g., Calif. Rules of Court Rule 35.2 [Certifying The Trial Record For Accuracy]; People v. Huggins (2006) 38 C4th 175, 191 [“punctuation supplied by the court reporter failed to accurately reflect the meaning conveyed …”]; People v. Coley (1997) 52 CA4th 964, 972; People v. Williams (1994) 30 CA4th 1758, 1764-65 [court reporter’s transcription of oral instructions is not an adequate substitute for copies of the written instructions]; Little v. U.S. (10th Cir. 1934) 73 F2d 861, 864 [recognizing the reality that the reporter may make “a mistake in the reading of … shorthand symbol[s] …”] see also Anne Graffam Walker, Language at Work in the Law: The Customs, Conventions, and Appellate Consequences of Court Reporting, in LANGUAGE IN THE JUDICIAL PROCESS (Judith N. Levi & Anne Graffam Walker eds., 1990) at page 203.)

Therefore, the jurors should be free to rely on their own recollection of the testimony even if it conflicts with the reporter’s notes.

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