THE COURTS
Title 234—RULES OF
CRIMINAL PROCEDURE
[234 PA. CODE CH. 6]
Order Amending Rule 644 of the Pennsylvania Rules of Criminal Procedure; No. 534 Criminal Procedural Rules Doc.
[51 Pa.B. 7863]
[Saturday, December 18, 2021]
Order Per Curiam
And Now, this 3rd day of December, 2021, upon the recommendation of the Criminal Procedural Rules Committee, the proposal having been published before adoption at 50 Pa.B. 3576 (July 18, 2020):
It is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule 644 of the Pennsylvania Rules of Criminal 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 on April 1, 2022.
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.
(A) [When a jury trial is expected to last for more than two days, jurors] Jurors shall be permitted to take notes during [the trial] opening statements, the presentation of evidence, and closing arguments for their use during deliberations. [When the trial is expected to last two days or less, the judge may permit the jurors to take notes.]
(1) The jurors shall not take notes during the judge's charge at the conclusion of the trial.
(2) 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.
(3) The court, the attorney for the Commonwealth, and the defendant's attorney, or the defendant if unrepresented, shall not request or suggest that jurors take notes, comment on the jurors' note taking, or attempt to read any notes.
(4) The notes of the jurors shall remain in the custody of the court at all times.
(5) 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.
(6) The notes of the jurors shall be confidential and limited to use for the jurors' deliberations.
(7) Before announcing the verdict, the jury shall return their notes to the court. The notes shall be destroyed by court personnel without inspection upon the discharge of the jury.
(8) The notes shall not be used as a basis for a request for a new trial, and the judge shall deny any request that the jurors' notes be retained and sealed pending a request for a new trial.
(B) The judge shall instruct the jurors about taking notes during the trial. At a minimum, the judge shall instruct the jurors that:
(1) the jurors are not required to take notes, and those jurors who take notes are not required to take extensive notes;
(2) note taking should not divert jurors from evaluating witness credibility or from paying full attention to the evidence [and evaluating witness credibility], opening statements, and closing arguments;
(3) the notes merely are memory aids, not evidence or the official record;
(4) the 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) the jurors may not show their notes or disclose the contents of the notes to other jurors until deliberations begin, but may show the notes or disclose the contents during deliberations;
(6) the jurors may not take their notes out of the courtroom except to use their notes during deliberations; and
(7) the jurors' notes are confidential, will not be reviewed by the court or anyone else, will be collected before the verdict is announced, and will be destroyed immediately upon discharge of the jury.
Comment: [This rule was adopted in 2005 to permit the jurors to take notes during the course of any trial that is expected to last more than two days. Pursuant to this rule, except for trials expected to last two days or less, 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). This rule was originally adopted as a temporary rule for the purpose of assessing whether juror note taking in criminal cases is beneficial to the system of justice in Pennsylvania. As the rule has found favor with the bench, bar, and public, the sunset provision of paragraph (C) has been rescinded and the rule has been made permanent.]
The judge must instruct the jurors concerning the note taking. Paragraph (B) sets forth the minimum information the judge must explain to the jurors. 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 the questions being asked the witness and the answers being given by the witness.You may also take notes during the opening statements and closing arguments of the attorneys. Again, if you do take notes, do not become so involved with note taking that it prevents you from paying attention to the remainder of the opening statement or closing argument.Your notes may help you refresh your recollection of the [testimony and] evidence as well as the attorneys' opening statements and 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 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 neither I nor any member of the court's staff will read your notes, now or at any time in the future. 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 (B)(6), the jurors are not permitted to remove the notes from the courtroom during the trial.
Pursuant to paragraph (A)(7), 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 June 30, 2005, effective August 1, 2005. New Rule 644 adopted June 30, 2005, effective August 1, 2005; amended August 7, 2008, effective immediately amended December 3, 2021, effective April 1, 2022.
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).
Final Report explaining the provisions of new Rule 644 allowing note taking by jurors published with the Court's Order at 35 Pa.B. 3917 (July 16, 2005).
Final Report explaining the August 7, 2008 amendments making permanent the provisions of Rule 644 allowing note taking by jurors published with the Court's Order at 38 Pa.B. [4506] 4606 (August 23, 2008).
Adoption Report explaining amendments permitting note taking by jurors during the presentation of evidence, opening statements, and closing arguments published with the Court's Order at 51 Pa.B. 7864 (December 18, 2021).
ADOPTION REPORT
Amendment of Pa.R.Crim.P. 644 Note Taking By Jurors
On December 3, 2021, effective April 1, 2022, upon recommendation of the Criminal Procedural Rules Committee, the Court amended Rule 644 to clarify (1) that jurors are permitted to take notes during trial regardless of the duration of the trial and (2) that ''trial'' includes opening statements and closing arguments for purposes of note taking. The 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.
Pa.R.Crim.P. 644 (Note Taking by Jurors) was adopted in 2005 and largely based on Pa.R.Civ.P. 223.2 (Conduct of the Jury Trial. Juror Note Taking), which was adopted in 2003. However, there were several differences between Pa.R.Civ.P. 223.2 and Pa.R.Crim.P. 644. First, Pa.R.Civ.P. 223.2 permitted jurors to take notes during ''the proceedings'' for use in deliberations, while Pa.R.Crim.P. 644 permitted note taking ''during trial.'' Second, Pa.R.Civ.P. 223.2 allowed a judge the discretion to permit note taking in trials lasting more than two days, while Pa.R.Crim.P. 644 required the judge to allow jurors to take notes in trials lasting more than two days but left to the judge's discretion whether to permit note taking in trials of shorter duration. Both Pa.R.Civ.P. 223.2 and Pa.R.Crim.P. 644 contained prohibitions against note taking during the judge's charge but were silent as to opening statements and closing arguments.
The Criminal Procedural Rules Committee and the Civil Procedural Rules Committee formed a joint subcommittee to discuss the merits of reducing these differences and bringing greater consistency to the rules. The joint subcommittee made two recommendations: (1) the two-day threshold for juror note taking should be removed; and (2) the rules should clarify that note taking is 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.Crim.P. 644 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.Crim.P. 644, it was noted that when first adopted, there was some skepticism that note taking by jurors was either necessary or beneficial. As a compromise, note taking was not permitted during trials lasting less than two days, reasoning that short trials are generally less complex, while note taking was permitted during longer trials, which are presumably more complicated.
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 shared juror observations. 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 observed that note taking throughout the trial, rather than only during the presentation of evidence, offers 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 what evidence is 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 that 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 openings and closings in addition to during the presentation of evidence. Note taking, however, will still be precluded during the judge's charge.
The Committee published this proposal for comment. See 50 Pa.B. 3576 (July 18, 2020). One comment was received objecting to note taking during openings and closings. No post-publications responsive revisions were made to the proposal for the reasons contained herein. This amendment becomes effective April 1, 2022.
[Pa.B. Doc. No. 21-2108. Filed for public inspection December 17, 2021, 9:00 a.m.] _______
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.
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