A Noteworthy Cause: The Debate of Jurors Taking Notes During Trials

Introduction:

Deriving from the English common law, trial by jury has been a standard of the American judicial system since the country’s founding. Although the practice of trial by a jury of one’s peers has been codified since the ratification of the 6th Amendment in 1791, jurors’ roles and rights have changed over time. Recently, jury members have started taking notes during trials; the practice is expressly allowed in eleven states but in most jurisdictions and in federal courts it is up to the purview of the judge whether or not to allow jurors to take notes.[1] Recent surveys have indicated that around 37% of the time note taking is not allowed in court.[2] With this practice being so common, the effects and repercussions of note taking in court should be examined and studied to make sure that the legal system is still functioning justly while also making jurors’ jobs easy and practical.

Arguments Against Juror Notetaking

Arguments against note taking in court are generally based in distrust of jurors’ intelligence. Some critics of juror note taking worry that jurors might hyperfocus on trivial aspects of court proceedings and overlook more critical information or the main points in arguments presented in trial. Additional arguments say that jurors can be distracted or distract their fellow jurors when taking notes, damaging the jurors ability to reach a fully informed decision. Some argue that, due to the quick nature of trials, jurors are incapable of taking comprehensive notes. Others argue that jurors will take more notes at the beginning of trials than at the end, favoring the prosecution in criminal cases and plaintiffs in civil cases. Studies have supported this argument, finding that half of jurors that took notes wrote down more at the beginning of the trial than at the end.[3] It should be noted, however, that some jurors reported taking the most comprehensive notes when the first witness was questioned, meaning that they took notes not only on the first side’s questioning, but also on the cross-examination from the other side.[4] Other arguments against juror note taking stem from when literacy rates were lower and critics believed that literate jurors would have a disproportionate influence when compared to illiterate jurors that served beside them. In modern days with the literacy rate in the United States being much higher, this argument has evolved into believing that some jurors might have more skills in note taking than others due to their job or experience in education.[5] Critics of this argument note that in most juries there is an influential member or a natural leader who takes control of the deliberations.[6] Additionally, it has been noted that well educated white males usually dominate jury deliberations and that jurors are typically influenced by the jury foreman, meaning that factors completely unrelated to one’s note taking are also important when it comes to jury deliberations.[7] Studies have also indicated that jurors that take notes tend to be less influenced by other jurors, meaning that if all jurors were allowed to and did take notes, influence by all other jury members would be less prevalent in deliberations and potentially undermine the influence of certain demographics taking control of deliberations.[8] It has also been shown that most jurors do not change their mind during deliberations so it is unclear whether any of these factors would greatly influence the actual outcome of cases, or if they would merely influence the deliberation processes.[9]

Arguments For Juror Notetaking

Critics have noted that it is both hypocritical and unfair that lawyers, judges, the press, the defendant, and even the general public watching are allowed to take notes but the people who should know the case the best, the jurors, are sometimes barred from taking notes. Additionally, in studies where jurors were allowed to take notes all that were given the choice to opted in, showing that many jurors would prefer the ability to take notes rather than relying on their memory in deliberations.[10] The most obvious argument in support of jurors being allowed to take notes is that it can aid juror recall. Most trials take around two days of proceeding, meaning juries have to take in a lot of legal information, as well as facts and details about the case. Note taking has been shown to aid memory not only because jurors can refer to their notes when deliberating, but also – as many educators can attest to – because the process of taking notes helps people retain information better. Without note taking jurors’ recall of evidence has been shown to be factually incorrect and makes jurors rely on single jurors that might have better retention skills.[11] Although juries are generally allowed to ask questions to the judge about recalling facts of the case, this process can be lengthy as United States v. Richard (2007) established in the Ninth Circuit Court that when the jury requests to re-hear witness testimony, the entire testimony must be replayed even if the question was about merely a part of it.[12] Having notes about witness testimony that jurors could refer to would help speed the process of deliberation and ease the burden of relistening to a witness’ entire testimony. In general, the ease of deliberation has been linked with jurors taking notes, with jurors who took notes during their trial rating the quality of their deliberations as better than jurors who were not allowed to take notes.[13] Additionally, studies note that jurors who took notes found their cases less difficult to decide.[14]

Conclusion

Although jury duty is called a civic duty by many legal professionals, most people find it to be cumbersome and irritating. Many people feel this way because it requires them to take time off from work, and although there are protections in place so people cannot lose their jobs for taking time off from work for jury duty, many people face financial burdens from missing work, even if it is for a single day.[15]If note taking makes the deliberation process more efficient – or even less confusing and irritable for jurors – it should be allowed. Lawyers, a majority of judges, and organizations such as the American Bar Association recommend that jurors should be able to take notes, and when presented with the opportunity, most jury members opt to take notes during trials.[16] This right could be protected either by Congress stepping in and passing a law similar to those already enacted in eleven states that allow this practice, or judges giving the power to allow jurors to take notes. The benefits have been shown in court and the drawbacks are inconsequential in comparison. When put into perspective, it seems logical that this practice should be allowed.