SERIES 100 PRETRIAL INSTRUCTIONS
F 102 JUROR NOTE TAKING
TABLE OF CONTENTS
F 102 Inst 1 Error To Imply That Juror Notes Are Per Se Less Accurate Than Reporter’s
F 102 Inst 2 Juror Note Taking: Right To Request Readback
F 102 Inst 3 (a & b) Juror Note Taking: Advisement That Argument Of Counsel May Not Be Readback To The Jury
F 102 Inst 4 Juror Note Taking: Juror’s Right To Take Notes On Counsel’s Argument
F 102 Inst 5 Juror Note Taking: Jury Notes On The Jury Instructions
F 102 Inst 6 Juror Note Taking: Confidentiality
F 102 NOTES
F 102 Note 1 Excessive Note Taking By Juror: Potential Prejudice
F 102 Note 2 Juror Note Taking: Destruction Of Notes At End Of Trial
F 102 Note 3 Juror Note Taking: Required Upon Request
F 102 Note 4 Note-Taking: Whether A Judge “Must Inform” Jurors “At Beginning Of Trial”
Return to Series 100 Table of Contents.
F 102 Inst 1 Error To Imply That Juror Notes Are Per Se Less Accurate Than Reporter’s
*Add to CC 102 [Point 2]:
You may request that the reporter’s notes be read to you. After hearing the court reporter’s record, each individual juror must decide what was said based on his or her recollection, any notes taken by that juror and the court reporter’s record. You are not bound to accept the court reporter’s record over your own individual recollection and/or notes.
Points and Authorities
See FORECITE F 104.5 Inst 1
Identification Of Parties—See FORECITE F 100.2 Note 1
F 102 Inst 2 Juror Note Taking: Right To Request Readback
*Add to CC 102, last paragraph as follows:
If any juror is uncertain about what the testimony was on a point under consideration, that juror may ask that the court reporter’s record be read to you.
Points and Authorities
Right To Readback Generally—Typically, the decision of whether to grant a request for readback need not be granted absolutely and is in the discretion of the court. (See e.g., People v. Smith (NY 1996) 637 NYS2d 279, 282; see also Robison v. State (TX 1994) 888 SW2d 473, 480-81 [the broad discretion afforded the trial court in responding to readback notes is also recognized by other state courts]; People v. Carr (IL 1977) 368 NE2d 128, 133; U.S. v. Akitoye (1st Cir. 1991) 923 F2d 221, 226.) The court may, in its discretion, grant the readback request, modify the request to either limit or expand the amount of testimony readback, or, in certain appropriate circumstances, and for reasons stated on the record, deny the readback. (See e.g., Alexander, Maine Jury Instructions Manual 8-2 [Readback of Evidence] (Lexis, 1999).) For example, in State v. Herbert (ME 1983) 455 A2d 925, 930-31, the following factors were set forth as relevant to the course of termination of a readback request: “(1) the length of the trial; (2) the complexity of the issues; (3) the number of witnesses; (4) the amount of testimony requested to be readback; (5) the amount of other testimony that in fairness to all parties should be readback with the requested readback; (6) the importance of the requested testimony; (7) the inconvenience and loss of time to the court that may result.”
The trial court should bear in mind that the preferable practice when the jury desires refreshment of memory is to grant the jury the right to have the readback of testimony in open court. (Ibid.) Hence, the trial judge normally has discretion in responding to readback requests by the jury.
Similarly, another court identified the following factors as relevant:
“The length of the requested readback is clearly a factor which must be considered. How recently the testimony was previously readback to the jury is another factor the court must take into account. The specificity of the readback request, the number of times the testimony has already been readback, and the amount of time the jury has had to digest and discuss the readback also appear to be relevant considerations. Finally, of course, the court must consider the positions of counsel prior to responding to any jury note.”
(People v. Smith (NY 1996) 637 NYS2d 279, 283.)
Hence, it has been held that the trial court may refuse a request for a readback for reasons such as the following: that the trial had been brief so that the testimony was fresh in the minds of the jurors; there existed the risk of confusion and boredom if rereading was permitted; the requested testimony was too “scattered”; the testimony should not be taken out of the context; “culling the testimony would, in effect, make the court a finder of fact.” (See U.S. v. Aubin (1st Cir. 1992) 961 F2d 980, 983.)
However, a categorical denial of a readback request may be subject to challenge. In some jurisdictions a readback may be required by statute (see e.g., State v. Myers (KS 1994) 872 P2d 236, 237) or as an inherent right of the jury. (See e.g., People v. Butler (1975) 47 CA3d 273, 283; State v. Redford (KS 1988) 750 P2d 1013, 1020; Willard v. State (WI 1928) 217 NW 651, 653.) Additionally, where a readback of important testimony is denied over objection by the defense, the defendant’s federal constitutional rights to fair trial by jury and due process (5th, 6th and 14th Amendments) may be implicated.
Hence, “[w]here a close judgment call is required, a justice should err on the side of responding favorably to a reasonable jury request… The convenience of the court should not be pursued at the cost of keeping the jurors confused.” (State v. Herbert (ME 1983) 455 A2d 925, 931; see also U.S. v. Escotto (2nd Cir. 1997) 121 F3d 81, 83 [there is a clear preference for readbacks of testimony whenever they are requested by deliberating jury]; State v. Sutkus (ME 1935) 182 A 15, 16 [there is a clear preference for readbacks of testimony in place of providing written statements to jury; State v. Richardson (NJ 1986) 506 A2d 43, 47 [“the decision of whether to grant a jury’s request for a readback of testimony rests within the sound discretion of the trial judge. However, such a request should be freely granted absent some unusual circumstance” ]; State v. Sciarra (RI 1982) 448 A2d 1215, 1220 [“trial justice should have at least inquired of the jury whether or not they wanted (a readback of the testimony)” ].)
As to the reading of testimony, PC 1138 gives the jury the right to a readback upon request. (People v. Frye (1998) 18 C4th 894, 1007; see also People v. Wader (1993) 5 C4th 610, 661; People v. Pride (1992) 3 C4th 195, 266; People v. Gordon (1990) 50 C3d 1223, 1259-60 ; People v. Butler (1975) 47 CA3d 273, 283-84.) Although the primary concern of PC 1138 is the jury’s right to be apprised of the evidence, a violation of the statutory mandate implicates a defendant’s right to a fair trial as well. (Frye, 18 C4th at 1007.) Therefore, it may be argued that the jury should be specifically instructed that they have a right to request a readback of testimony.
It is error for the judge to discourage the jury from exercising this right and it is reversible error for the trial court to improperly influence the jury to rescind its request for a readback of testimony. (See U.S. v. Criollo (2nd Cir. 1992) 962 F2d 241, 244 [policy of discouraging readback is not “particularly wise” ]; see also Criollo at 244 [announcing before jury deliberations began a prohibition against readbacks of testimony not harmless even in a very short trial]; People v. Litteral (1978) 79 CA3d 790, 797-78 [reversible error to refuse request for readback due to illness of reporter]; People v. Smith (MI 1976) 240 NW2d 202, 203 [instruction prior to deliberations that any request for readback of testimony would not be honored constituted prejudicial error]; People v. Hardy (NY 1986) 508 NYS2d 462, 463 [judge erred in denying jury’s request to have testimony of defense witnesses readback]; 8th Circuit Model Jury InstructionsC Criminal 1.06 [No Transcript Available Notetaking] (2000).)
Individual Juror Request Of Readback—A verdict of guilt requires the assent of each juror, each juror should be free to individually evaluate the record. (See generally FORECITE F 100.7 Inst 2.) Hence, an individual juror should be able to request a readback of testimony if there is a question about that juror’s notes.
Whether The Reporter’s Record Controls—See FORECITE F 104.5 Inst 1
Identification Of Parties— See FORECITE F 100.2 Note 1
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 6.7 [Reliability: Non-Capital Charge]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 7.8 [Right To Individual Juror Determination]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13
F 102 Inst 3 (a & b) Juror Note Taking: Advisement That Argument Of Counsel May Not Be Readback To The Jury
*Add the following to CC 102:
Alternative a:
A request for readback 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.
Alternative b:
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.
[Source: Adapted from Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. # 3, pp. 8-9.]
Points and Authorities
CALCRIM 102 and 202 inform the jurors that they may take notes at their own discretion but does not discuss whether the trial transcript of relevant proceedings will be read back at the jurors request.
On the other hand, CALCRIM 104, paragraph 5 states that:
The court reporter is making a record of everything said during the trial. If you decide that it is necessary, you may ask that the court reporter’s notes be read to you. You must accept the court reporter’s notes as accurate.
(See also CALCRIM 222.)
From these instructions, the jurors could conclude that a readback of all proceedings, including the arguments of counsel, will be available. However, the jury has no right to a readback of the arguments of counsel. (See People v. Gordon (1990) 50 C3d 1223, 1260.) The jurors should, therefore, be advised that they may have to rely on their own memories or notes regarding the arguments of counsel.
See also FORECITE F 102 Inst 4.
Identification Of Parties—See FORECITE F 100.2 Note 1
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 1.8 [Right Of Argument To The Jury]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 4.3 [Affirmative Defense: Right To Instruction]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13
CALJIC NOTE: See FORECITE F 1.05a.
F 102 Inst 4 Juror Note Taking: Juror’s Right To Take Notes On Counsel’s Argument
*Add to CC 102:
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 (1988) 45 C3d 86, 119.) 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 102 Inst 5.)
Accordingly, CALCRIM 102 should be modified so that it is not limited to the testimony.
Identification Of Parties—See FORECITE F 100.2 Note 1
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 1.8 [Right Of Argument To The Jury]
FORECITE CG 7.2 [Jury‘s Duty To Fully And Fairly Apply The Law]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13
NOTE: The jury has no right to a readback of the arguments of counsel. (See FORECITE F 102 Inst 3.)
CALJIC NOTE: See FORECITE F 1.05d
F 102 Inst 5 Juror Note Taking: Jury Notes On The Jury Instructions
*Add to CC 102:
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 (1990) 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.
Identification Of Parties—See FORECITE F 100.2 Note 1
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13
CALJIC NOTE: See FORECITE F 1.05c.
F 102 Inst 6 Juror Note Taking: Confidentiality
*Add to CC 101:
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 (1984) 36 C3d 724, 726.) Therefore, the jurors should be instructed that their notes are to be confidential. (See State v. Waddell (1996) 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 (1978) 22 C3d 626, 641 [jury was instructed not to share their notes with anyone, including fellow jurors “until the case is finally submitted to you…” ].)
CALCRIM 102 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.
Identification Of Parties—See FORECITE F 100.2 Note 1
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
FORECITE CG 7.8 [Right To Individual Juror Determination]
FORECITE CG 7.9 [Duty To Deliberate Fully And Fairly]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13
CALJIC NOTE: See FORECITE F 1.05b.
F 102 NOTES
F 102 Note 1 Excessive Note Taking By Juror: Potential Prejudice
PRACTICE NOTE: Notwithstanding the cautionary instruction on juror note taking, there may still be a danger of prejudice from allowing the jurors to take notes. While such prejudice may be difficult to establish, the California Supreme Court has suggested that prejudice could be shown by evidence that “one juror took copious notes and dominated deliberations or that jurors appeared not to be paying attention to the proceedings as they took notes on certain portions of testimony.” (People v. Thompson (1988) 45 C3d 86, 120.) Hence, counsel should be alert to excessive note taking. If there is such a juror, it may be appropriate to make a record of the matter and request further cautionary instruction regarding the potential causes of prejudice.
RESEARCH NOTES: Juror Note Taking
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.
CALJIC NOTE: See FORECITE F 1.05 n4.
F 102 Note 2 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.
CALJIC NOTE: See FORECITE F 1.05 n3
F 102 Note 3 Juror Note Taking: Required Upon Request
Regardless of whether the trial court has a sua sponte duty to give an instruction on note taking, it is error to fail to give the instruction upon request. (People v. Pitts (1990) 223 CA3d 606, 879; see also People v. Morris (1991) 53 C3d 152, 214-15 and CALCRIM 30 Bench Note [instruction on this topic has been recommended by the Supreme Court].)
But see FORECITE F 102 Note 4; F 1.05 n6.
CALJIC NOTE: See FORECITE F 1.05 n2
F 102 Note 4 Note-Taking: Whether A Judge “Must Inform” Jurors “At Beginning Of Trial”
See FORECITE F 1.05 n2.
