By Dr. Ken Broda-Bahm:
You may have seen the video called "Order in the Classroom." The piece, the work of the National Jury Trial Innovations Project, offers a quick and humorous take on what a college course would look like if it were run with all of the constraints of a trial. In the video, the students/jurors look on with surprise, anger, and bewilderment as the professor ticks through each of the class rules that parallel a trial rule, including..."and you can't take notes to remind yourself of what you heard or what you thought was important." Thankfully, some things have changed since that 1998 production. Note-taking is now fairly common in American courtrooms. In the federal system, it is at the court's discretion, and even officially encouraged in some circuits like the 7th. Note-taking is also promoted through the ABA's Principles for Juries and Jury Trial, Standard 13(A): "Jurors should be allowed to take notes during the trial." Despite that general acceptance, however, notes still aren't uniform, and U.S. Legal notes that they are not allowed in 37 percent of state court trials.
If a gap remains, that is a shame, because accumulating evidence shows that note-taking helps -- not just taking the notes, but reviewing them as well. A recent study (Thorley, 2016) written up in ScienceDaily, shows that note-taking and note review makes jurors less likely to forget critical evidence, and that has an impact on verdicts. Dr. Craig Thorley of the University of Liverpool asked 144 mock jurors to view an American murder trial. Some were allowed to take notes, some were allowed to take notes and review those notes, and some were not allowed to take notes. Dr. Thorley found that the process of taking notes enhanced jurors' memory of the evidence, and reviewing those notes helped even more. "This research emphasizes the importance of note-taking as an aid to remembering trial evidence," Dr. Thorley notes, "but also shows that permitting jurors to review their notes, which is something courts do not typically do, further enhances their memory of trial evidence. I would therefore strongly recommend courts permit jurors to take notes during a trial and then give jurors time to review them prior to reaching a verdict." These results suggest a potential supplement to ABA's Standard 13(A): Instead of requiring jurors to leave their notes in the jury box as some judges do, jurors should be allowed to take and review those notes when they are in the jury room during breaks. In this post, I will share a few thoughts on advocating for note-taking before the bench as well as adapting to note-taking on the jury.