You may have seen the video called "Order in the Classroom." The piece, the work of the National Jury Trial Innovations Project, offers a quick and humorous take on what a college course would look like if it were run with all of the constraints of a trial. In the video, the students/jurors look on with surprise, anger, and bewilderment as the professor ticks through each of the class rules that parallel a trial rule, including..."and you can't take notes to remind yourself of what you heard or what you thought was important." Thankfully, some things have changed since that 1998 production. Note-taking is now fairly common in American courtrooms. In the federal system, it is at the court's discretion, and even officially encouraged in some circuits like the 7th. Note-taking is also promoted through the ABA's Principles for Juries and Jury Trial, Standard 13(A): "Jurors should be allowed to take notes during the trial." Despite that general acceptance, however, notes still aren't uniform, and U.S. Legal notes that they are not allowed in 37 percent of state court trials.
If a gap remains, that is a shame, because accumulating evidence shows that note-taking helps -- not just taking the notes, but reviewing them as well. A recent study (Thorley, 2016) written up in ScienceDaily, shows that note-taking and note review makes jurors less likely to forget critical evidence, and that has an impact on verdicts. Dr. Craig Thorley of the University of Liverpool asked 144 mock jurors to view an American murder trial. Some were allowed to take notes, some were allowed to take notes and review those notes, and some were not allowed to take notes. Dr. Thorley found that the process of taking notes enhanced jurors' memory of the evidence, and reviewing those notes helped even more. "This research emphasizes the importance of note-taking as an aid to remembering trial evidence," Dr. Thorley notes, "but also shows that permitting jurors to review their notes, which is something courts do not typically do, further enhances their memory of trial evidence. I would therefore strongly recommend courts permit jurors to take notes during a trial and then give jurors time to review them prior to reaching a verdict." These results suggest a potential supplement to ABA's Standard 13(A): Instead of requiring jurors to leave their notes in the jury box as some judges do, jurors should be allowed to take and review those notes when they are in the jury room during breaks. In this post, I will share a few thoughts on advocating for note-taking before the bench as well as adapting to note-taking on the jury.
Before the Bench:
Of course, there might be circumstances where you don't want your jury to take notes: for example, when the broad and easy story favors you but the details don't. In these cases you would want your jury to take a more heuristic "big picture" route to your decision, a route that is facilitated in the absence of notes. When, however, you feel that a better and more specific understanding of the facts favors you, then you will want jurors to be able to take notes.
When it is discretionary, counsel should feel comfortable advocating for notes during a pretrial conference. After all, one reason a judge might not allow juror note-taking in trial is that the attorneys have not asked. In making that request, make use of the ABA Standard 13(A), and you should also take a look at the case United States v. Causey, F.3d (7th Cir. March 28, 2014): "A judge would not try a bench trial without the ability to take notes, even though the trial transcript can be generated post‐trial. It is difficult to understand why jurors should not have the same opportunity to take notes." In addition, I believe that for many judges, it would also help to cite the research, including studies like Dr. Thorley's showing that note-taking and note review both increase comprehension of critical evidence. While some judges are skeptical that notes will be a distraction or will be treated as evidence itself, it is worth pointing out that the research accounts for those possible drawbacks and finds that the net effect is beneficial.
Before the Jury:
When your jury is allowed to take notes, there are a couple of ways you should adapt.
Notice the Note-takers
Watching the jury is irresistible, but as I've written before, it can be a fool's errand to try and figure out what they're thinking at any given moment. One thing that you can tell, however, is who is taking notes and when. Of course, you won't know exactly what they write -- they could be doodling after all. But if you pay attention over time, a pattern is likely to emerge based on when they write. The note-takers are likely to be more sensitive to the details and are likely to retain more of what they hear, and both factors will make them more influential during deliberations. If you see someone write down a critical fact, make a note of that. Later when referring to that fact in closing, look directly at the person who wrote it down.
Make Note-taking Easier and More Predictable
What helps those who are taking notes and perhaps encourages the less experienced note-taking? One word: structure. Be explicit about your main points. Enumerate: There are three reasons, six chapters to this story, four key pieces of evidence on this point. Employ an order and a breakdown that is not just clear to you, but clear to your listeners as well. Use structuring devices such as chunks or chapters, or the well-known 'rule of three.' If they are encouraged to take notes, jurors are better able to build their own structure which contributes to their own understanding of the broad story and where the specific details fit in. The more you can control that process, the better.