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Note Taking by Jurors

November 7th, 2012
By Jessica Smith

The N.C. AOC’s website indicates that the current pay rate for jurors in North Carolina is $12 for the first day of service, $20 for days two through five; and if you serve for more than five days, you get a bonus: $40 for every day after day five. [Editor's Note: I discussed juror pay in some detail in this prior post.] Of course, serving jury duty is a civic responsibility. But sometimes we ask a lot of jurors, especially in long, complicated trials. When a case involves multiple counts, multiple defendants, a lot of scientific evidence, or charges spanning a long time period, it can be hard for jurors to keep track of the facts. Allowing note taking can help.

Over the years, a number of arguments have been asserted against allowing note taking by jurors. Among them are these: that the best note-taker may dominate jury deliberations; that jurors, not having an overview of the case, may include in their notes interesting sidelights and ignore important but boring facts; that dishonest jurors might falsify notes; that note taking draws the juror’s attention away from the witness’s demeanor; and that the notes may receive undue attention during deliberations. Wayne R. LaFave, et al, 6 Criminal Procedure 514 (3rd ed. 2007). On the flip side, note taking can be a valuable method of refreshing memory and may help focus jurors’ attention during the proceeding. Also, one leading commentator has suggested that any concerns with note taking can be addressed with appropriate jury instructions. LaFave, supra, at 514.

In North Carolina, jurors in criminal cases may be allowed to take notes. G.S. 15A-1228 provides that unless the judge directs otherwise, jurors may take notes and may take their notes into the jury room during deliberations. Whether to allow the jury to take notes and use them in the jury room during deliberations is a discretionary decision for the trial judge. State v. Crawford, 163 N.C. App. 122, 127 (2004) (trial court did not abuse its discretion by allowing note taking even though both parties later indicated that they preferred the jurors not take notes). The judge can prohibit note taking either on his or her own motion or on a motion by a party. G.S. 15A-1228; State v. Warren, 348 N.C. 80, 113 (1998) (no error where the trial court prohibited note taking on its own motion). The North Carolina Pattern Jury Instructions provide an instruction on note taking. N.C.P.I.—Crim. 100.30. When allowing note taking, some judges amplify the pattern, instructing the jurors:

  • that they are not required to take notes but may do so if they choose;
  • on the importance of observing the demeanor of the witnesses;
  • where notes should be left (on their seats during trial; in the jury room during deliberations);
  • that court personnel will ensure that no one examines the jurors’ notes;
  • that their notes will be kept under lock and key when not in use by the jurors; and
  • not to take notes on copies of exhibits because the exhibits may not be allowed into the jury room.

Additionally, some judges amend N.C.P.I.—Crim. 101.35 (Concluding Instructions) to remind the jurors that they may take their notes into the jury room but that none of them should give their notes or the notes of another juror undue significance.

My informal survey of judges indicates that practice on this issue varies. Some judges routinely allow note taking. Others allow it more sparingly or not at all.

One Response to “Note Taking by Jurors”

  1. James Soder says:

    Having been on both ends of the stick, both jury member, defendant and prosecution; I can still. Not understand why the law does not leave it to a jury member as to whether or not they want to make and utilize notes for themselves. I can how ever see limiting the use of notes in regard to influencing others. The jury should be even allowed to ask for notes, transcripts, even digital voice recording sense they are now, or should be immediately available. When I sat on a jury, the bias against a foreigner who was here legally was unnerving. Therefore I suggest that a jury should be able to make notes even in the jury room in order for them to try and remedy a breach of law that may be occurring with the jury. I was physically and emotionally threatened by two members of the jury I sat on. The Forman called in the deputy and tried to have me thrown out because I disagree with athe decision of not guilty against the defendant. In that case the judge also prevented clear and necessary information on the case. They told us we could not go to where the truck driver hit the motorcycle and killed a man. However I already knew that the street the truck driver turned on two was not the street he intended and was in fact less than a block long with nowhere to turn a truck around and that there was no loading dock at the degraded building. He had missed his legitimate turn by a block. I know the building and intersection because I had been investing in property and looked at that location just days before the trial. Remember a trial of peers” means people who know the community as well. We should never have been prevented from using our own information about the community, let alone restricting the prosecution from brining said information to the fore front. We juries are much brighter and more capable than the system allows for. Our social dynamic is also part of the jury of “peers.” My “peers” and yours are social and many of us increase our effectiveness in the community by note taking.

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