THE COURTS

Title 231—RULES OF
CIVIL PROCEDURE

PART I. GENERAL

[231 PA. CODE CH. 200]

Order Amending Rule 223.2 of the Pennsylvania Rules of Civil Procedure; No. 724 Civil Procedural Rules Doc.

[51 Pa.B. 7860]
[Saturday, December 18, 2021]

Order

Per Curiam

 And Now, this 3rd day of December, 2021, upon the recommendation of the Civil Procedural Rules Committee; the proposal having been published for public comment at 49 Pa.B. 3885 (July 27, 2019):

 It is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule 223.2 of the Pennsylvania Rules of Civil Procedure is amended in the following form.

 This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective April 1, 2022.

Annex A

TITLE 231—RULES OF CIVIL PROCEDURE

PART I. GENERAL

CHAPTER 200. BUSINESS OF COURTS

Rule 223.2. Conduct of the Jury Trial. Juror Note Taking.

 (a)(1) [Whenever a jury trial is expected to last for more than two days, jurors, except as otherwise provided by subdivision (a)(2), may take notes during the proceedings and use their notes during deliberations.

 Official Note: The court in its discretion may permit jurors to take notes when the jury trial is not expected to last for more than two days.]

 Jurors shall be permitted to take notes during the presentation of evidence, opening statements, and closing arguments and use their notes during deliberations.

 (2) Jurors [are not] shall not be permitted to take notes when the judge is instructing the jury as to the law that will govern the case.

 (b) The court shall give an appropriate cautionary instruction to the jury prior to [the commencement of the testimony before the jurors] opening statements. The instruction shall include:

 (1) Jurors are not required to take notes and those who take notes are not required to take extensive notes[,];

 (2) Note taking should not divert jurors from paying full attention to the evidence and evaluating witness credibility, the opening statements, or the closing arguments;

 (3) Notes are merely memory aids and are not evidence or the official record[,];

 (4) Jurors who take few or no notes should not permit their independent recollection of the evidence to be influenced by the fact that other jurors have taken notes[,];

 (5) Notes are confidential and will not be reviewed by the court or anyone else[,];

 (6) A juror may not show his or her notes or disclose their contents to other jurors until deliberations begin, but may show the notes or disclose the contents during deliberations[,];

 (7) Jurors shall not take their notes out of the courtroom except to use their notes during deliberations[,]; and

 (8) All juror notes will be collected after the trial is over and immediately destroyed.

 Official Note: It is recommended that the trial judge instruct the jurors along the following lines:

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 those who take notes are not required to take extensive notes.

Remember that one of your responsibilities as a juror is to observe the demeanor of witnesses to help you assess their credibility. If you do take notes, 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.

You may also take notes while the attorneys' present their opening statements and when they will make their closing arguments about the evidence at the end of the trial. Again, if you do take notes, do not become so involved with note taking that it distracts from paying attention to the remainder of the opening statement or hearing all of the closing argument.

Your notes may help you refresh your recollection of the [testimony and] evidence as well as the attorneys' opening statements or their closing arguments. Your notes 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 are not evidence or the official record.

Those of you who do not take notes should not permit your independent recollection of the evidence to be influenced by the fact that other jurors have taken notes. 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.

Each time that we adjourn, your notes will be collected and secured by court staff. Jurors shall not take their notes out of the courtroom except to use their notes during deliberations.

A juror may not show his or her notes or disclose their contents to other jurors until deliberations begin, but may show the notes or disclose their contents during deliberations. The only notes you may use during the deliberations are the notes you write in the courtroom during the proceedings on the materials distributed by the court staff.

Your notes are completely confidential and will not be reviewed by the court or anyone else. After the trial is over, your notes will be collected by court personnel and immediately destroyed.

 (c) The court shall

 (1) provide materials suitable for note taking,

 Official Note: The materials provided by the court are the only materials that jurors may use for note taking.

 (2) safeguard all juror notes at each recess and at the end of each trial day, and

 (3) collect all juror notes as soon as the jury is dismissed and, without inspection, immediately destroy them.

 (d)(1) Neither the court nor counsel may (i) request or suggest that jurors take notes, (ii) comment on their note taking, or (iii) attempt to read any notes.

 (2) Juror notes may not be used by any party to the litigation as a basis for a request for a new trial.

 Official Note: A court shall immediately deny a litigant's request that juror notes be placed under seal until they are reviewed in connection with a request for a new trial on any ground, including juror misconduct. The notes shall be destroyed without inspection as soon as the jury is dismissed.

ADOPTION REPORT

Amendment of Pa.R.Civ.P. 223.2

 On December 3, 2021, the Supreme Court amended Pennsylvania Rule of Civil Procedure 223.2 to clarify and expand when note taking by jurors is permitted during trial. The Civil Procedural Rules Committee has prepared this Adoption Report describing the rulemaking process. An Adoption Report should not be confused with Comments to the rules. See Pa.R.J.A. 103, Comment. The statements contained herein are those of the Committee, not the Court.

 The Civil Procedural Rules Committee received a request for rulemaking to clarify the parameters set forth in Pa.R.Civ.P. 223.2 as to when jurors may take notes during the course of a trial. The requester pointed out that the rule had been generally interpreted to permit note taking during witness testimony only, but not during opening statements and closing arguments. The rule expressly prohibits note taking during the reading of the jury charge only; there is no similar express prohibition on note taking during opening statements and closing arguments. Thus, whether note taking was permitted during opening statements and closing arguments was open to interpretation.

 Pa.R.Civ.P. 223.2 was adopted in 2003, initially on a temporary basis, and made permanent in 2005. Subdivision (a)(1) of the rule permitted jurors to take notes during ''the proceedings'' if a trial was anticipated to last more than two days but did not specify or define the term ''proceedings.'' As noted above, the term had been generally interpreted to permit juror note taking only when witnesses are testifying during trial and not during opening statements and closing arguments. For trials anticipated to last two days or less, the rule permitted jurors to take notes subject to the trial judge's discretion. Subdivision (a)(2) expressly prohibited note taking during the reading of the jury charge.

 The Committee initially proposed the amendment of Pa.R.Civ.P. 223.2 in three respects. First, in subdivision (a)(1), the term ''proceedings'' was replaced with ''the presentation of evidence'' to closely hew to the current understood practice of permitting note taking during the testimony of witnesses. In addition, the parameters of the rule were expanded to permit note taking during closing arguments. The proposal did not extend note taking to opening statements because the nature of opening statements can include information that may ultimately not be supported by the evidence presented or even entered into evidence. The proposal continued the prohibition of note taking during the reading of the jury charge.

 Second, subdivision (a)(1) was modified to replace the permissive ''may'' with ''shall be permitted.'' The use of the permissive ''may'' in the rule offered the opportunity for variation in procedure. To ensure a uniform practice throughout the Commonwealth, all jurors should be permitted to take notes subject to the parameters of the rule. The rule would continue to place no obligation on the part of jurors to take notes, but the authority for jurors to use this tool for deliberations would be expressly permitted.

 Third, subdivision (b) was also modified to include a cautionary juror instruction that note taking should not divert jurors' attention from, inter alia, the closing arguments. Those requirements were also incorporated into the suggested jury instruction set forth in the comment following the rule text.

 The Committee published the proposal, see 49 Pa.B. 3885 (July 27, 2019), and received four comments, both in support of and opposed to the proposal. Those supporting the proposal either supported it as drafted or suggested opening note taking to all portions of the trial, including opening statements. Those opposing the proposal either objected to expanding note taking to closing arguments because closing arguments are not evidence and are not always factually accurate, or believed that note taking should be limited to the presentation of evidence only.

 To those commenters opposed to expanding note taking, the Committee believed that the benefit of expanding note taking to engage jurors more fully in the trial and hold attorneys accountable for accurate advocacy far outweighed any potential for inaccuracies. Moreover, the concern that note taking is not always accurate, while certainly true in some instances, was considered speculative when considered as a whole.

 The Criminal Procedural Rules Committee, which was also examining whether Pa.R.Crim.P. 644 governing note taking in criminal trials should be similarly clarified, suggested forming a joint subcommittee to resolve any potential differences in the approach to juror note taking. The Civil Procedural Rules Committee agreed.

 The joint subcommittee made two recommendations: (1) juror note taking should be permitted in all trials regardless of its anticipated length of time; and (2) juror note taking should be permitted during opening statements and closing arguments.

Two-Day Trial Time Limitation

 After receiving the joint subcommittee's recommendations, the Committee discussed the extent of the trial judge's discretion in allowing juror note taking. Prior to the present amendment, Pa.R.Civ.P. 223.2 required a presiding judge to permit note taking in trials lasting more than two days, but granted the judge discretion in trials lasting less than two days. The Committee questioned why this time limit was chosen and whether it was an arbitrary limitation. In reviewing the history of Pa.R.Civ.P. 223.2, it was noted that when first adopted, there was some skepticism whether note taking by jurors was necessary or beneficial. As a compromise, the two-day limitation was imposed because it was reasoned that trials lasting less than two days would be more simple and not necessitate note taking; longer trials were deemed more complicated and thus jurors could benefit from the ability to take notes if they so desired.

 The Committee noted that courts have become more accustomed to juror note taking, recognizing the benefits while observing that few of the problems originally feared with the practice have occurred. Thus, the Committee agreed with the joint subcommittee that, regardless of the length of the trial or its complexity, jurors should be allowed to take notes and that the two-day limitation should be eliminated.

Note Taking During Opening Statements and Closing Arguments

 In examining the joint subcommittee's recommendation, several Committee members noted the observations shared by the joint subcommittee members on juror note taking. First, taking notes during opening statements aided the jurors in familiarizing themselves with the theories that were going to be presented during the trial. Those notes also helped them organize their thoughts in anticipation of hearing the evidence. Second, jurors found that taking notes during closing arguments aided in recalling those arguments. Additionally, it appeared that jurors had no trouble distinguishing between evidence and argument.

 The Committee also noted that the joint subcommittee observed that note taking throughout the trial, rather than only during the presentation of evidence, offered several benefits. First, liberal allowance of note taking demonstrates respect for and trust in the jurors and their ability to perform their duties. Second, note taking keeps attorneys accountable; if jurors take notes, attorneys need to take greater care to avoid discrepancies between the opening statement and the evidence presented. To the concern that opening statements may include references to evidence that is ultimately precluded, curative instructions are an available remedy. It was also noted there are instances during the presentation of evidence when testimony can be stricken. Finally, it was observed that the federal courts permit jurors to take notes during all parts of a trial.¹

 As a result of these discussions, the Committee concluded that note taking should be permitted during both opening statements and closing arguments in addition to during the presentation of evidence. Note taking, however, should be precluded during the judge's charge to the jury.

 This amendment has been adopted in tandem with the amendment to Pa.R.Crim.P. 644 to clarify and expand juror note taking during opening statements, the presentation of evidence, and closing arguments in criminal proceedings. In doing so, the parameters of juror note taking have been made uniform for all jury trials. The amendment becomes effective April 1, 2022.

[Pa.B. Doc. No. 21-2107. Filed for public inspection December 17, 2021, 9:00 a.m.]

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¹ Note taking by jurors in federal court is permitted at the discretion of each judge. The directive appears to be set forth in pattern jury instructions and not pursuant to rule. See, e.g., Section 1.9 of the Model Jury Instructions for the United States Court of Appeals for the Third Circuit, https://www.ca3.uscourts.gov/sites/ca3/files/1_Chaps_1_2_3_2017_Oct.pdf.

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