The practice of allowing jurors to take written notes during trial is more widely accepted than it used to be, especially with cases becoming increasingly complex and lengthy in duration. In most (but not all) jurisdictions, whether members of a jury are allowed to take notes will depend upon the judge’s discretion. One judge may generally permit note-taking, while another who does not normally sanction the practice may do so at the request of counsel. One judge may permit notes to be taken on an individual basis, while another judge may only allow it if the case is extremely complicated and/or there are many parties involved.
Do Jurors’ Notes Really Help?
Clients often ask if the notebooks and legal pads jurors fill up during the days and weeks of trial truly help deliver a favorable outcome to their side. Unfortunately, the mere practice of jurors taking notes does not improve the chances of a successful verdict for your client. Just because jurors take notes does not mean those notes are thorough or that they support your case. What note-taking does is allow for more accurate memories of the information that best aligns with the jurors’ attitudes and beliefs.
The following outlines several of the pros and cons of juror note-taking.
Advantages of Juror Note-Taking
- Reducing Inaccurate Memories. Research indicates that taking handwritten notes means a person will have a better chance of retaining the information he/she heard. The American Bar Association’s stance on note-taking is, “Individuals tend to be better able to recall events and testimony if they have taken notes at that time; the very process of writing things down helps encode the events in one’s memory.”
- Enhance Memory Recall. Notes can assist jurors in refreshing their memories and enhance their ability to recall or double-check their recollection of important evidence, especially witness testimony. In our experience, jurors often forget who’s who or who said what, and they turn to their notes (and the notes of their fellow jurors) to reconcile that information.
- Appeals to Different Learning Styles. Not everybody is an auditory learner, so allowing the option to take notes appeals to jurors with different learning styles (e.g., visual, auditory, kinesthetic, etc.) and you are likely to have a mix of styles in your panel.
Disadvantages of Juror Note-Taking
- Incorrect Information Captured. Incorrect information may be written down, or jurors will doodle and not pay attention if they have notepads. (We have seen some pretty interesting “artwork” on the notepads we collect from our mock jurors!)
- Notes Trump Other Jurors’ Memories. Jurors will attach too much significance to their notes and attach too little significance to their independent memories. Moreover, those who took notes, or those who took the best notes, may dominate jury deliberations. In our mock trials, we have seen situations where one juror who took meticulous notes controls deliberations with his or her version of how things happened. That’s why instructions like those below are important for a judge to administer.
- Focusing on the Trivial. There is an assumption that jurors cannot make the distinction between important and trivial evidence. Writing down (and potentially focusing on) every little thing makes it difficult for a jury to reach a rational verdict.
Methods to Improve the Use of Note-Taking
Many courts have concluded that concerns regarding note-taking can be overcome with proper directives from the judge. For instance, a judge may instruct jurors that:
- Notes are not evidence; rather, notes should only be used as an aid to jurors’ memories. Jurors’ notes should not be given greater weight than their independent recollections.
- Deliberations should not be influenced by the mere fact that another juror (or jurors) has taken notes.
- Jurors are required to leave their notes in the courtroom/deliberation room at the end of each day, and they should not show their notes to one another until deliberations.
- They do not have to take notes. Notepads are available if they choose to use them.
Should Note-Taking be Permitted During a Mock Trial or Trial?
In order to replicate the conditions our clients typically encounter at trial, Litigation Insights allows jurors to take hand-written notes throughout presentations and does not allow the notes to leave the “courtroom.” We provide the same instructions a judge would use as noted above.
At trial, however, advocating for or against juror note-taking should be considered on a case-by-case basis, and it is important to carefully weigh the advantages and disadvantages of it with your team before petitioning a judge who does not allow note-taking to change his or her mind.
By: Jessica Baer, M.A. – Consultant