"Baby, Write This Down"1: Juror Note Taking During Trial

After participating in a study testing different juror reforms, Judge Michael McKeon of Auburn wrote

"To expect all jurors to process information in the same manner is not only ludicrous but in some respects dangerous."

He is now an advocate of the practice of allowing jurors to take notes during trial.  He participated in the Jury Trial Project of 2003 and the 91 trials of study showed that jurors are able to take trial notes and pay attention to the proceedings.  The study also showed that 75% of all jurors who were permitted to take notes thought that "note taking assisted them in recalling the evidence, understanding the law and reaching a decision."  The judge changed his policy from forbidding the practice of note taking to allowing it and encouraging judges to try it in their courtroom.

Another reason he supports this reform is that one juror thanked him for the note taking because she wouldn't have been able to process the evidence without taking some notes.  In addition, the judge compared listening to trial with listening to lectures in school and people are the same in both situations:  some can process and remember orally and don't take notes, some take a few notes, and some take copious notes.

He makes an excellent analogy.  In school and learning, society and teachers encourage taking notes because they can be used as a reference and note taking aids in active listening.  In law school, we are encouraged to take notes effectively, and it would be difficult for me to sit through a trial of multiple hours or days without being able to take notes because notes allow me to be active in the various subjects covered at a time and not have to keep it all in short term memory.  Without notes, I would be pressured to think and reason through at the same time as trying to commit facts to memory.  That kind of multitasking is far more difficult than allowing jurors to write down key points or people while listening to evidence.

I am in favor of this reform because it is logical to allow jurors to take notes as a refresher.  The limitations I would put on this reform are that jurors are not allowed to share their notes with other jurors and are not allowed to look at other jurors' notes.  The reasons for this are because of potential disadvantages covered briefly by an Austin prosecutor's blog post.  Jurors should not be allowed to compare notes as a record--they should still discuss the evidence orally and work through as a group discrepancies in memory instead of comparing written notes.  He mentions another disadvantage would be if jurors were too busy writing to evaluate a witness, but I think jurors are capable of fully evaluating and watching a witness while taking notes because the witness and overall experience will be so novel that the jury be interested in evaluating the credibility of the witness and taking a few notes to distinguish witnesses.  The judge's instruction should be clear that note taking should serve only as a memory aid, that notes are not to be shared, and that jurors only note take if they feel comfortable doing so.


----------------

1:  “Write This Down” by George Strait (1999)