To take note, or take not: Juror’s plight raises broader questions

A Wilson County jury foreman who recently found himself spending a week in jail for taking notes on his smartphone during the trial should have perhaps taken better notes while the judge was giving out instructions—the presiding judge, Milton Fitch, had explicitly barred jurors from using their phones during the civil trial.

The juror, Christopher Korfmann, was sentenced to 30 days for contempt of court and is currently free on bond.

But the case shines a spotlight on a tricky question for courtroom management—is the pursuit of justice aided by allowing jurors to take notes during a trial? And if so, what restrictions might be needed to ensure that such notes are used properly?

North Carolina law makes judges the masters of their own courtrooms in these matters. In criminal cases, jurors may make notes and take them into the jury room during deliberations—except where the judge, on a motion of her own or by either side, directs otherwise. The state’s rules of civil procedure have no analogous instruction, so note-taking in civil cases, as a matter of practice, has been left to the discretion of the presiding judge.

Both prosecutors and criminal defense attorneys across the state who spoke with Lawyers Weekly suggested that letting jurors take notes in criminal cases—subject to certain safeguards—was likely to help them manage all the pertinent facts in a case, especially in lengthy trials in which many witnesses might be called. But the attorneys were also leery about letting jurors use electronic devices for that purpose. (Korfmann was held in contempt for violating a prohibition on the use of smartphones.)

“Our cases are so complex and involve so many witnesses and involve pretty dense testimony that note-taking can enable a juror to more thoroughly understand the case by the time they reach the point of deliberations,” said Bruce Lillie, an assistant district attorney in Mecklenburg County whose team primary prosecutes violent crimes. “I see it as a tool, and a tool that can be valuable to them. I think we want jurors to be well informed on the facts of the case when they’re making their decision.”

Psychological studies generally tend to support the view that written notes make it easier to make sense of information later. In fact, the mere act of taking notes can help aid memory even if the notes are not actually available for reference later, because the notes make it easier to prioritize the most important facts when forming memories.

Criminal defense attorneys that spoke about the issue were equally approving of note-taking as a tool for improving the accuracy of jurors’ recollections during deliberations.

“I think it’s probably a good idea for jurors to take notes, because they’re human also, and they can’t remember everything and anything, especially if a trial takes weeks,” said Ben Deaver, a criminal defense attorney in Wilmington. “Just as a witness is allowed to look at his notes to refresh his recollection, I don’t see why a jury should be deprived of the same benefit.”

Paper, not plastic, please

As for judges’ attitudes towards allowing jurors to take notes, responses suggested that they can differ quite a bit from judge to judge. The most typical procedure would seem to be that judges allow jurors to take their own notes, subject to some restrictions. Judges will often address the issue when a jury is empaneled, although some may ask the jury about its preference or wait for a juror to make a request before addressing it.

Deaver said that jurors often come back and ask the court questions during deliberations, and recounted a story in which jurors asked the trial judge to clarify whether the defendant had originally been charged with leaving the scene of the accident.

“If they’d had the ability to take notes, they would have had that answer,” Deaver said. “And then it’s up the court to determine if they’re going to reveal something that was already spoken to them during the trial. In that case, the judge said to ‘rely on your memory.’”

The most common concern raised by both prosecutors and defense attorneys was the potential for impropriety if jurors are allowed to take notes on smartphones or tablets. Any notes, attorneys said, should ideally be limited to pen and paper, which can be easily confiscated whenever jurors leave the courtroom.

Lorrin Freeman, district attorney for Wake County, said that’s the practice in her courtrooms, and jurors are reminded “again and again” throughout the course of a trial about the importance of not using electronic devices.

“The suggestion of jurors taking notes on a tool that has access to the Internet is just fraught with problems because it’s clearly established under the law that jurors are not to have outside information,” Freeman said. “When a juror uses a smartphone or tablet to take notes, there is no manageable way to ensure that it’s only being used for that purpose. There’s no way to collect that at the end of the day and make sure that’s the only information in it.”

Studies into thinking processes suggest that, besides keeping jurors off the Internet, taking notes by hand is better for memory formation than taking them on a computer anyway, likely because the slower process of writing requires note-takers to think more actively about what they’re hearing.

Dewey Brinley, a criminal defense in Raleigh who generally approves of note-taking, raised another potential concern: If there are discrepancies among jurors’ recollections once they start deliberating, one juror’s set of notes might be given greater weight than another’s.

“If somebody takes really good notes, and they’re trying to persuade people based on what they’ve written down, that would be a concern,” Brinkley said. “I think notes are good, but to allow jurors to look at each other’s notes might be a problem during deliberations. You just don’t want anybody’s notes to trump anybody else’s during deliberation.”

Update: Korfmann has filed court documents in his defense in which he claims that jurors were never specifically instructed not to take notes or use electronic devices outside the courtroom.

Follow David Donovan on Twitter @NCLWDonovan