Note Taking by Jurors

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 (3^rd 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.