THE COURTS
[234 PA. CODE CH. 6]
Note Taking by Jurors
[33 Pa.B. 2164] The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania rescind Pa.R.Crim.P. 644 (Note Taking by Jurors) that prohibits the jurors in a criminal trial from taking notes and replace it with a new Rule 644 (Note Taking by Jurors), and make correlative changes to Rules 646 (Material Permitted in Possession of the Jury) and 647 (Request for Instructions, Charge to the Jury, and Preliminary Instructions). Theses changes would provide the procedures for jurors to take notes during a criminal trial and use them during deliberations. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Report should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.
The text of the proposed rule changes precedes the Report. Additions are shown in bold; deletions are in bold and brackets.
We request that interested persons submit suggestions, comments, or objections concerning this proposal in writing to the Committee through counsel,
Anne T. Panfil, Chief Staff Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
5035 Ritter Road, Suite 800
Mechanicsburg, PA 17055
fax: (717) 795-2106
e-mail: criminal.rules@supreme.court.state.pa.usno later than Friday, June 6, 2003.
By the Criminal Procedural Rules Committee
JOHN J. DRISCOLL,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 6. TRIAL PROCEDURES IN COURT CASES
PART C(2). Conduct of Jury Trial Rule 644. [Note Taking by Jurors] (Rescinded).
[The jurors shall not be permitted to take notes during the course of the trial.]
[Comment This rule codifies the present Pennsylvania practice that discourages note taking by jurors. Cf. Fisher v. Strader, 160 A.2d 303 (Pa. 1960); Thornton v. Weaber, 112 A.2d 344 (Pa. 1955) (both involving civil cases); Commonwealth v. Fontaine, 128 A.2d 131 (Pa. Super. 1956) (involving a criminal case).]
Official Note: Rule 1113 adopted January 24, 1968, effective August 1, 1968; renumbered Rule 644 and Comment revised March 1, 2000, effective April 1, 2001. Rule 644 rescinded , 2003, effective , 2003.
Committee Explanatory Reports:
* * * * * Report explaining the proposed rescission of Rule 644 published at 33 Pa.B. 2166 (May 3, 2003).
Rule 644. Note Taking by Jurors.
(A) The judge shall instruct the jurors that they may take notes during the trial.
(B) The court shall provide materials to the jurors that are suitable for note taking. These are the only materials that may be used by the jurors for note taking.
(C) The notes of the jurors shall remain in the custody of the court at all times.
(D) The jurors may have access to their notes and use their notes only during the trial and deliberations. The notes shall be collected or maintained by the court at each break and recess, and at the end of each day of the trial.
(E) The notes of the jurors shall be confidential and limited to use for the jurors' deliberations.
(F) Before announcing the verdict, the jury shall return their notes to the court, and their notes shall be destroyed by court personnel.
Comment This rule was amended in 2003 to permit the jurors to take notes during the course of the trial. Pursuant to this amendment, the jury may take notes as a matter of right without the permission of the court. See, e.g., ABA Standards For Criminal Justice, Second Edition, Standard 15-3.2 (Note taking by jurors) (1980).
The judge must instruct the jurors concerning the note taking. At a minimum, the judge must explain that the jurors do not need to take notes and they should not permit note taking to interfere with their attentiveness. The judge also must emphasize the confidentiality of the notes.
It is strongly recommended the judge instruct the jurors along the lines of the following:
We will distribute notepads and pens to each of you in the event you wish to take notes during the trial. You are under no obligation to take notes and it is entirely up to you whether you wish to take notes to help you remember what witnesses said and to use during your deliberations.If you do take notes, remember that one of your responsibilities as a juror is to observe the demeanor of witnesses to help you assess their credibility. Do not become so involved with note taking that it interferes with your ability to observe a witness or distracts you from hearing other answers being given by the witness.Your notes may help you refresh your recollection of the testimony and should be treated as a supplement to, rather than a substitute for, your memory. Your notes are only to be used by you as memory aids and should not take precedence over your independent recollection of the facts.Those of you who do not take notes should not be overly influenced by the notes of other jurors. It is just as easy to write something down incorrectly as it is to remember it incorrectly and your fellow jurors' notes are entitled to no greater weight than each juror's independent memory. Although you may refer to your notes during deliberations, give no more or no less weight to the view of a fellow juror just because that juror did or did not take notes. Although you are permitted to use your notes for your deliberations, the only notes you may use are the notes you write in the courtroom during the proceedings on the materials distributed by the court staff.Each time that we adjourn, your notes will be collected and secured by court staff. Your notes are completely confidential and no one will ever be allowed to read them. After you have reached a verdict in this case, your notes will be destroyed immediately by court personnel. Pennsylvania Bar Association Civil Litigation Update, Juror Note-taking in Civil Trials: An Idea Whose Time Has Come, Volume 5, No. 2 (Spring 2002), at 12.Pursuant to paragraph (C), the jurors are not permitted to remove the notes from the courtroom during the trial.
Pursuant to paragraph (E), the judge must ensure the notes are collected and destroyed immediately after the jury renders its verdict. The court may designate a court official to collect and destroy the notes.
Official Note: Rule 1113 adopted January 24, 1968, effective August 1, 1968; renumbered Rule 644 and Comment revised March 1, 2000, effective April 1, 2001. Rule 644 rescinded , 2003, effective , 2003. New Rule 644 adopted , 2003, effective , 2003.
Committee Explanatory Reports:
Final report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. 1478 (March 18, 2000).
Report explaining the proposed new Rule 644 allowing note taking by jurors published at 33 Pa.B. 2166 (May 3, 2003).
Rule 646. Material Permitted in Possession of the Jury.
* * * * * (C) The jurors shall be permitted to have their notes for use during deliberations.
Comment * * * * * The 1996 amendment adding ''or otherwise recorded'' in paragraph (B)(2) is not intended to enlarge or modify what constitutes a confession under this rule. Rather, the amendment is only intended to recognize that a confession can be recorded in a variety of ways. See Commonwealth v. Foster, 624 A.2d 144 (Pa. Super. 1993).
Paragraph (C) was added in 2003 to make it clear that the notes the jurors take pursuant to Rule 644 may be used during deliberations.
* * * * * Official Note: Rule 1114 adopted January 24, 1968, effective August 1, 1968; amended June 28, 1974, effective September 1, 1974; Comment revised August 12, 1993, effective September 1, 1993; amended January 16, 1996, effective July 1, 1996; amended November 18, 1999, effective January 1, 2000 ; renumbered Rule 646 March 1, 2000, effective April 1, 2001; amended , effec- tive .
Committee Explanatory Reports:
* * * * * Report explaining the proposed amendment concerning jurors' notes published at 33 Pa.B. 2166 (May 3, 2003).
Rule 647. Request for Instructions, Charge to the Jury, and Preliminary Instructions.
* * * * *
Comment * * * * * Paragraph (D), added in 1985, recognizes the value of jury instructions to juror comprehension of the trial process. It is intended that the trial judge determine on a case by case basis whether instructions before the taking of evidence or at anytime during trial are appropriate or necessary to assist the jury in hearing the case. The judge should determine what instructions to give based on the particular case, but at a minimum the preliminary instructions should orient the jurors to the trial procedures and to their duties and function as jurors. In addition, it is suggested that the instructions may include such points as note taking, the elements of the crime charged, presumption of innocence, burden of proof, and credibility. Furthermore, if a specific defense is raised by evidence presented during trial, the judge may want to instruct on the elements of the defense immediately after it is presented to enable the jury to properly evaluate the specific defense. See also Pennsylvania Suggested Standard Criminal Jury Instructions, Chapter II (1979).
Official Note: Rule 1119 adopted January 24, 1968, effective August 1, 1968; amended April 23, 1985, effective July 1, 1985; renumbered Rule 647 and amended March 1, 2000, effective April 1, 2001; Comment revised , 2003, effective 2003.
Committee Explanatory Reports:
* * * * * Report explaining the proposed Comment revision concerning the note taking instruction published at 33 Pa.B. (May 3, 2003).
REPORT
New Pa.R.Crim.P. 644; Rescission of Current Rule 644; and Correlative Changes to Rules 646 and 647
NOTE TAKING BY JURORS Introduction
The Criminal Procedural Rules Committee is proposing to recommend the Court adopt new Rule 644 (Note Taking by Jurors) and make correlative changes to Rules 646 (Material Permitted in Possession of the Jury) and 647 (Request for Instructions, Charge to the Jury, and Preliminary Instructions) that would provide the procedures to permit note taking by jurors in a criminal jury trial, and would include provisions governing, inter alia, instructions by the court concerning note taking, confidentiality, and destruction of the jurors' notes prior to the announcement of the verdict.1 These changes are intended to facilitate jury trial procedures, and align the Pennsylvania ''note taking'' rule with the procedures in most other state and federal jurisdictions.2
Over the past several years, the Committee has visited and revisited the concept of jury trial innovations generally, and specifically the issue of note taking by jurors. The Committee has received correspondence each time another jurisdiction changes the rules or statutes or case law to allow jurors to take notes during trial, and from time to time we also have received correspondence from members of the bench suggesting that the ban on note taking should be removed. The issue of note taking by jurors also has been receiving a lot of attention by the Legislature, the media, and some Pennsylvania trial judges. In addition, in every Legislative session over the past several years, a bill that would provide for jurors to take notes during a trial has been introduced in the Senate.3
In view of the increased attention the issue note taking by jurors is receiving, recognizing that there is interest among members of the bench and bar in having this prohibition removed, and concluding, after a review of the studies on note taking, that note taking does serve as an aid to the jurors' comprehension without negative consequences, the Committee agreed that there should be procedures in place that would permit jurors to take notes and promote uniformity.
Discussion of Proposed Rule Changes
1. New Rule 644 (Note Taking by Jurors)
After the Committee agreed that the ban on note taking should be removed, we encountered some difficulty in determining how to incorporate this change in the Criminal Rules. Since the adoption of Rule 644 in 1968,4 the prohibition on juror note taking has not changed. The Committee concluded we should propose a completely new rule to emphasize the change. In addition, 1) recognizing that, although recent developments in trial practice have emphasized the necessity of developing procedures to improve jurors' comprehension, which includes permitting juror note taking, there continues to be some opposition to permitting note taking by jurors, 2) attempting to be sympathetic to the sensitivities surrounding this issue, and 3) being cognitive of the Court's goal of statewide uniformity, the Committee identified several areas that needed to be addressed to successfully advance this change.
The Committee first discussed the issue whether juror note taking should be permitted only when the trial judge permits it, or only when counsel agree, or in all cases. The Committee agreed if the decision to permit note taking in a particular case were left to the trial judge, this would neither foster nor promote uniformity and would be likely to create problems when, for example, a judge in one courtroom would permit the jurors to take notes in a case, but a judge in another judicial district, or even another court room in the same judicial district, would not permit the jurors to take notes in a similar type of case, or a case that would take roughly the same amount of time to complete, or a case with the same number of witnesses. The Committee also thought that if note taking only were permitted when counsel agree, the same type of problems would arise. Having fully considered and debated the merits of allowing the trial judges the discretion to decide in what cases to permit juror note taking, or counsel to agree to permit note taking by jurors, the Committee ultimately agreed that juror note taking should be permitted in every case, and the jurors should decide for themselves whether to take notes. Paragraph (A), therefore, would provide that the judge shall instruct the jurors that they may take notes during the trial, and the Comment would augment this new rule by setting forth suggested general topics for the trial judge to instruct the jury concerning note taking, including: 1) taking notes is the juror's decision; 2) the importance of not allowing the note taking to interfere with the juror's observation of the proceedings; 3) parameters for using the notes; and 4) confidentiality, security, and destruction of the notes.5
Paragraph (B) would require the court to provide suitable note taking materials to the jurors, and that these ''court-supplied'' materials are the only materials the jurors may use for note taking. This paragraph makes it clear that the jurors are not permitted to bring outside materials for note taking. For example, a juror could not bring in his or her own laptop computer or palm pilot to''store'' his or her notes, which would be distracting to other jurors and would be problematic for the court to control the notes and protect the confidentiality of the notes.
Paragraphs (C), (D), and (E) would require that the jurors' notes shall remain in the custody of the court at all times, spell out when the jurors may have access to their notes, and emphasize the notes of the jurors are confidential and the use of the notes is limited to deliberations. These paragraphs make it clear that the notes of the jurors are the property of the court, and safeguard misuse, whether intended or unintended, of the notes by ensuring the notes are maintained by the court.
Finally, paragraph (F) would require that before the verdict is announced, the jurors must return their notes to the court, and their notes must be destroyed. This will further protect the confidentiality of the notes, and also prevent the notes from becoming the subject of appeals, which we believe is an inappropriate use of the notes.
2. Correlative Changes: Rules 646 (Material Permitted in Possession of the Jury) and 647 (Request for Instructions, Charge to the Jury, and Preliminary Instructions)
The Committee also is proposing correlative changes to Rules 646 and 647. Rule 646 would be amended by the addition of a new paragraph (C) that would make it clear the jury may take their notes for use during deliberations, and the Comment to Rule 647 would be revised to include as ''suggested preliminary instructions'' the trial judge include instructions on note taking.
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1 Correlative to this proposal, the Committee is proposing the rescission of Rule 644 (Note Taking by Jurors) that, historically, has prohibited jurors in a criminal trial from taking notes.
2 From our research, it appears there are only two states that prohibit note taking by jurors, and Pennsylvania is one of them. The Federal Courts and the District of Columbia also permit jurors to take notes during a jury trial.
3 For example, in at least the last four legislative sessions, a bill has been introduced that would permit juror note taking. See, e.g., Senate Bill 97 (Printer's Number 96) Session of 2003. During previous sessions, the bill was not passed; in this current session, however, the Senate Bill 97 has passed the Senate and is now in the House for consideration.
4 Rule 644 originally was numbered 1113, but was renumbered 644 as part of the Court's March 18, 2000 Order that reorganized and renumbered the Criminal Rules.
5 The Committee learned the Handbook for Pennsylvania Trial Judges advocates note taking and includes a suggested jury note taking instruction. We agreed a similar suggested juror note taking instruction should be included in the new Rule 644 Comment because of the significant change in practice the new procedure would be. The Committee also agreed using similar language would be helpful for the judges.
[Pa.B. Doc. No. 03-819. Filed for public inspection May 2, 2003, 9:00 a.m.]
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