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Criminal Jury Instructions

Criminal Jury Instructions Home

1.2-11 Note-Taking

Revised to June 12, 2009

Note: The trial court has discretion to permit the jurors to take notes, but if it is allowed a precautionary instruction must be given. Esaw v. Friedman, 217 Conn. 553 (1991).

You may, if you wish, take notes during the course of the trial. <Have the court officer or marshal distribute note pads and pencils.> You are not required to take notes, even if all of your fellow jurors do.

Let me emphasize some ground rules for you regarding note-taking. Notes are a sound tool to help you refresh your recollection during the deliberative phase of this trial; however, notes, by themselves, are not foolproof. If there is a conflict between your notes and your recollection, it is your recollection that must prevail.

Additionally, if there is a conflict between your recollection and the notes of a fellow juror, it is your recollection that should prevail. Your notes are not evidence. You will recall my earlier definition of what constitutes evidence. Your verdict must be based exclusively on evidence presented at trial and the principles of law given to you in my final instructions.

The note-taking process should not distract you from focusing on the witness because the credibility you ascribe to a witness is critical. It is essential that you do not allow note-taking to interfere with or to impede your ability to view the witness, to listen to him or her, and to size him or her up; that is to properly evaluate the witness. You should not be so preoccupied with taking notes that you overlook what the witness is saying and how that witness is saying it. You may find that note-taking may distract you from giving full attention to a witness. You will need to observe the demeanor of a witness while he or she is testifying. You will be able to get testimony played back to you during your deliberations, so you do not need to make your own record of exactly what was said.

There is no need to try to take a lot of notes or to take down the testimony word for word. You may not make or modify any notes outside of court. Note pads will be collected at the end of each trial day and kept secure and confidential by the marshal or court officer. No one will look at them.

Whatever notes you take are confidential. You are not to exchange or discuss your notes with your fellow jurors during the trial itself. You may discuss your notes, if you choose, during the deliberation phase. Just as you cannot discuss or deliberate this case among yourselves until the case has been completed, so too, you cannot exchange or discuss your notes until the trial has been completed.

There is no requirement, of course, that you take notes. This is an option to be exercised by each of you individually. Those of you who elect not to take notes will be no less conscientious than jurors who take notes.

The juror who takes few or no notes should not permit his or her individual recollection to be influenced by a juror whose notes may differ from that recollection. Notes are only a tool and are not always accurate. Do not assume that a voluminous note-taker is taking notes that are necessarily more accurate.

I take notes because I may be asked to rule on issues during the course of the evidence. Your decision whether to take notes at any point should not be influenced by my note-taking.

Finally, notwithstanding note-taking by you and your fellow jurors, do not hesitate to seek a reading of any portion of the testimony if you deem it essential during your deliberations.

Commentary

State v. Mejia, 233 Conn. 215, 228-29 (1995), applied the rule of Esaw v. Friedman, 217 Conn. 553, 556 (1991), to criminal trials. Juror note-taking is improper without the court's permission. State v. Collins, 38 Conn. App. 247, 255-60 (1995). In Collins, the court instructed the jurors that note-taking was prohibited because "written notes tend to take on a greater significance, in the jury room than they may deserve. . . . There are good note-takers, and there are bad note-takers. They also tend to cause a mind set, in the person of the taker of the notes." Id., 259 n.11. If the court does allow note-taking, the "court should instruct the jurors that their notes are merely aids to their memories and should not be given precedence over their independent recollection of the evidence, that a juror who has not taken notes should rely on his recollection of the evidence and should not be influenced by the fact that other jurors have done so, and that they should not allow their note-taking to distract them from paying proper attention to the evidence presented to them." Esaw v. Friedman, supra 217 Conn. 563.

Practice Book § 42-9 provides that "[t]he members of the jury may, in the discretion of the judicial authority, take notes and submit questions to be asked of witnesses during the trial of a criminal action." There is no appellate authority concerning the procedures to be used if the court allows the jury to submit questions for witnesses.
 


 

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