217 Conn. 553 | Conn. | 1991
The principal issues of this appeal are whether jurors maybe permitted to take notes during a trial and, if so, whether the trial court is required to preserve those notes for purposes of an appeal. We hold that the trial court has discretion to permit note-taking by the jurors, and that the notes are for the confidential use of the jurors only and should not be preserved.
The plaintiff appeals from the judgment of the trial court rendered upon a jury verdict in her favor in the amount of $2000. The plaintiff claims that the court: (1) improperly permitted the jurors to take notes during the trial and to use those notes during their deliberations;
The plaintiff first claims that the trial court improperly permitted the jurors to take notes during the trial and to use them during deliberations. We disagree.
At the beginning of the trial, the court informed the jurors that they would be permitted to take notes, but cautioned them regarding the proper use of the notes.
Although the plaintiff claims that both she and the defendants objected to the court’s initial instruction permitting such a procedure, the record does not reflect any such objection. Furthermore, the plaintiff’s only exception to the court’s final instruction in this regard was that the court should have made it clearer that the notes were not evidence and were to be used only to refresh the jurors’ recollection of the evidence.
We acknowledge that the long-standing judicial understanding in this state has been to bar jurors from taking notes during a trial and, a fortiori, from using such notes in their deliberations. Although we have been unable to discover any particular Connecticut case or rule of practice as the source of that understanding, it may stem from what has been thought to be a common law rule forbidding such a practice. Yet, the origins of such a common law rule are “as obscure as the origin of the jury itself”; comment, “Taking Note of Note-Taking,” 10 Colum. J.L. & Soc. Probs. 565, 574 (1973-74); which has been described by the same commentator as “shrouded in the mists of common law antiquity.” Comment, 10 Colum. J.L. & Soc. Probs., supra, 565. “ ‘In the standard texts on jury trial such as History of Trial By Jury by William Forsyth . . . and Trial By Jury by Robert von Moschzisker, late Chief Justice of Pennsylvania, nothing can be found as to the origin or reason for this rule.’ 55 Dick. L. Rev. 335 (1951).” Comment, 10 Colum. J.L. & Soc. Probs., supra, 574 n.43.
The origin of the understanding in this state may lie in an overly broad reading of Clark v. Whitaker, 18 Conn. 543 (1847), on which the plaintiff in this case relies. In that case, a document used to refresh the recollection of two witnesses, but never introduced into
Whatever the source of that understanding, however, we now abandon it, and conclude that a trial court has discretion to permit jurors to take notes during the trial. We reach that conclusion on the basis of three considerations: (1) the overwhelming weight of authority supporting such discretion; (2) a critical evaluation of the arguments for and against such a procedure; and (3) sound judicial policy and our abiding faith in the common sense of jurors.
The vast majority of jurisdictions that have considered the issue entrust the decision of whether jurors should be permitted to take notes to the sound discretion of the trial court. The federal courts are virtually unanimous;
The principal arguments against such a procedure are that: (1) the best note-taker will dominate the jury; (2) since jurors are not trained in note-taking, they will focus on trivial matters to the detriment of vital facts; (3) a dishonest juror may falsify his notes; (4) debate within the deliberation room over whose notes are more accurate will detract from the deliberation process; and (5) the process of taking notes will distract jurors from watching and listening to the witnesses and will cause them to miss testimony. Ill A.B.A. Standards for Criminal Justice, supra, p. 15.85; D. Petroff, “The Practice of Jury Note Taking—Misconduct, Right, or Privilege?” 18 Okla. L. Rev. 125, 130 (1965).
Each of these arguments, however, carries with it a legitimate response. (1) It is likely that certain jurors will be more influential with their colleagues than others in any event, and unlikely that the process of note-taking alone will distort the deliberative process. (2) Jurors are no less trained in note-taking than people in other walks of life who often rely on notes to record and recollect their perceptions, and the risk that a case may turn on an imperfect or faulty set of notes is no greater than that it may turn on an imperfect or faulty memory. (3) A dishonest juror may equally “falsify” his memory, and the presence of the other jurors’ notes may well be more persuasive in correcting that falsity. (4) There is no more risk that jurors’ notes will prompt debate over whose notes are better than reliance solely on the jurors’ memories will prompt debate on whose memory is better. (5) The risk that taking notes may distract a juror is no greater than the possibility that taking notes may increase the juror’s attention to the testimony.
Finally, considerations of sound judicial policy and faith in the common sense of jurors lead us to conclude that a trial judge should have the discretion to permit such a procedure. The human memory is fallible, and notes may significantly aid in recalling evidence. Judges sitting as trial courts routinely take notes, as do students, business persons, journalists and people in all walks of life who are intent on being able to recall later the specifics of what they see and hear. As a matter of ordinary human experience, we usually have no compunctions about the ability of these people to engage
Applying these principles to the facts of this case, we conclude that the trial court was within its discretion in permitting the jurors to take notes. The plaintiff does not claim, nor do we perceive, any abuse of that discretion.
II
The plaintiff next claims that the trial court improperly refused to preserve the jurors’ notes for purposes of appellate review. Relying on the familiar principle that a trial court has no discretion to refuse to mark an exhibit for identification; see, e.g., State v. Silva, 201 Conn. 244, 253, 513 A.2d 1202 (1986); Duncan v. McTiernan, 151 Conn. 469, 470, 199 A.2d 332 (1964); she argues that this refusal was manifestly improper requiring reversal because it deprived her of the ability to demonstrate on appeal that the notes improperly affected the verdict. This claim is without merit.
First, the plaintiff’s argument incorrectly assumes that there would be something improper about the notes of the jurors affecting the verdict. Implicit in our conclusion in Part I of this opinion that the jurors were
Second, collecting and preserving jurors’ notes would be inconsistent with the purpose of permitting jurors to take notes in the first place. That purpose is to enable any individual juror, if he sees fit, to make a private, confidential written record of his thoughts, perceptions and questions so that he may better be able to recall the evidence and to engage in deliberations at the appropriate time. That is the reason the authorities have held that the notes are confidential to their maker and only to be disclosed to the other members of the jury. See United States v. Maclean, supra, 66. Requiring that the notes be preserved would create the impermissible risk that jurors who wish to take notes would be inhibited from doing so.
Third, the plaintiff’s argument founders on the well established rule “ ‘which excludes, as immaterial, evidence as to the expressions and arguments of the jurors in their deliberations and evidence as to their own motives, beliefs, mistakes and mental operations generally, in arriving at their verdict.’ ” (Emphasis added.) Aillon v. State, 168 Conn. 541, 550, 363 A.2d 49 (1975), quoting C. McCormick, Evidence (2d Ed.) § 68, pp. 148-49. Thus, jurors may not, in the context of an attempt to set aside a verdict on the ground of improper jury conduct, give testimony that implicates their mental processes; Aillon v. State, supra, 551-52; which are insulated from the scrutiny of others. Examining the notes they took during the course of the trial would be a direct threat to the proper insulation of those processes. If the notes may not be examined, therefore, they should not be preserved and collected.
Ill
The plaintiff’s final claim, namely, that the verdict was inadequate as a matter of law, requires little discussion. The plaintiff argues that the award was sufficiently low so as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption, particularly since the jury answered a particular interrogatory that her injuries were caused by the defendant’s negligence. We disagree.
We give great weight and every reasonable presumption to the trial court’s refusal to set aside a verdict in response to a claim of inadequacy of the verdict. Todd v. Glines, 217 Conn. 1, 5, 583 A.2d 1287 (1991). The test is whether the award falls within the uncertain limits of just damages or whether it is so inadequate that it shocks the sense of justice and compels the conclusion that it was the product of partiality, prejudice, mistake or corruption. Id., 5-6.
We have fully reviewed the record in this case. Suffice it to say that the extent and source of the plaintiff’s injuries were seriously contested. There was
Nor do the jury’s answers to the special interrogatories help the plaintiff. The plaintiff claims that “the jury specifically found, in answering interrogatory number [2]
The judgment is affirmed.
In this opinion the other justices concurred.
The plaintiff also alludes in her brief to an alternate claim, namely, that the court improperly instructed the jury in the use of its notes. This claim, however, is made only in the heading of the plaintiffs argument, and the plaintiffs brief is bereft of any further mention of it. Therefore, although we discuss, infra, the nature of the instructions that a trial court should give in connection with note-taking by jurors, we consider the plaintiffs claim of improper instructions to have been abandoned for failure to brief it. Czamecki v. Plastics Liquidating Co., 179 Conn. 261,262 n.l, 425 A.2d 1289 (1979).
The named defendant was operating a vehicle owned by his mother, Barbara Friedman, whom the plaintiff sued under the family car doctrine. We refer herein to the named defendant as the defendant.
The defendant had filed a special defense of contributory negligence, alleging that the plaintiff stopped her vehicle suddenly without giving a signal or warning.
The plaintiff also claimed in her motion to set aside the verdict that the court should not have permitted the jurors to ask questions during the trial. The plaintiff has not pursued that claim in this appeal, but we today decide that issue in Spitzer v. Haimes & Co., 217 Conn. 532, 587 A.2d 105 (1991).
After informing the jurors that they would be permitted to ask questions of the witnesses, the court stated: “In the first case I did this a couple of months ago. When I spoke with the jurors afterward they said they felt a little frustrated because they were’t able to take notes. And the case went over a weekend. Monday we don’t try cases because we have motions. And they said, we would like to have been able to jot down our questions because we sort of forgot them. In other words, we had a question in mind and then things went on and on and lunch and so forth. How about giving us some paper so we can make some notes.
“So we are going to do that, have some paper to take notes. Then we run into some jurors [who] try to take a lot of notes, and I sort of try to discourage that and try to sort of suggest to you, although it is up to you, it is your pencil and your paper, but try to suggest to you that you not take a lot of notes. Rather concentrate on the witnesses. You are here to size up these witnesses. It seems to me that if you spend all your time taking notes, detailed notes, you are going to be distracted and not be able to concentrate as much as you should on the witnesses.
“So some of the jurors have basically confined their note-taking to questions that they feel like asking, and of course they tend to sometimes scratch them out because it gets asked by someone else. But as I say, it is up to you but just keep in mind that that is your primary mission.
“The other, I guess you could say hesitancy about letting jurors take notes in the past has been a fear that one juror with some very nice notes would attempt to dominate the discussion and get in the jury room. And there will be a question, did the witness say this, and one juror will say, yeah, I have it right here in my notes. This is it. I’m a great notetaker and this is the way it is. And the decision is supposed to be reached by six people, all reasoning and working together. So that has always sort of been the fear behind not letting jurors take notes. I don’t happen to think it holds too much water myself, but that is a little background on the matter of questions and notes.”
The court stated as follows: “I mentioned recollection, and that brings up the question of notes. We said at the beginning of the case that we prefer that you basically concentrate on the witness, and in a sense keep the notes to remind you of questions that you wanted to ask the witnesses, as you’ve done here. The theory always being, that if a person was too busy making notes, he or she might lose the sense of what the witness was saying. As you know, because we spent some time yesterday, you really have to size up the witnesses. Because you’re going to be deciding who to believe, and who not to believe. The thinking has always been, not that you all were—because I know that you all paid attention, to the witness on the stand—but the theory militating against taking notes was that a person would start scribbling ferociously and forget to concentrate on the witness. Not that you’ve done that.
“But, the other fear was that some notetaker, a good notetaker, a real top notetaker, in the jury room, if you’re all sitting around saying T think witness X said this, and witness Y said this,’ that the top notetaker would say ‘Wait a minute, ladies and gentlemen, I’ve got it down here in my notes. This is it. I’m a great notetaker, and this is exactly what happened.’ No further discussion on that. That should not happen, of course.
“It’s the 6 jurors. It’s their joint recollection of what happens. So in that sense, I suppose, you really don’t need your notes, while you’re deliberating. But on the other hand, it’s up to you. If you think they’d be helpful, please take them with you. But remember, it’s your recollection that counts because sometimes notes are not as accurate as we hope they would be.
“So, as I say, you can come back and ask, if there’s a question about what a witness has said, don’t hesitate to ask.”
The plaintiff stated in pertinent part as follows: “With regard to their notes . . . my exception is I think it should have been stronger, I have no objection to [their] taking their notes into the deliberation room if Your Honor tells them in no uncertain terms that their notes are not evidence, their verdict has to be based on the evidence and the law and their notes can be useful insofar as it refreshes their recollection of the evidence.”
See United States v. Oppon, 863 F.2d 141,148-49 (1st Cir. 1988) (practice within trial court’s discretion); United States v. Vaccaro, 816 F.2d 443, 451 (9th Cir.). cert. denied sub nom. Alvis v. United States, 484 U.S. 914, 108 S. Ct. 262, 98 L. Ed. 2d 220 (1987) (“decision of whether to allow the jury to take notes is left entirely to the discretion of the trial court”); United States v. Polowichak, 783 F.2d 410, 413 (4th Cir. 1986) (matter is within
See Reece v. Simpson, 437 So. 2d 68,69 (Ala. 1983) (Pattern Jury Instruction 1.15, APJI-Civil, gives jurors legal right to take notes during trial); State v. Marquez, 135 Ariz. 316, 321, 660 P.2d 1243 (1983) (Arizona Rules of Criminal Procedure 18.6 [c]; preliminary instruction provides jurors with permission to take notes); People v. Guzman, 45 Cal. 3d 915, 948, 755 P.2d 917,248 Cal. Rptr. 467 (1988), cert. denied, 488 U.S. 1050,109 S. Ct. 882, 102 L. Ed. 2d 1005, reh. denied, 493 U.S. 960,110 S. Ct. 380,107 L. Ed. 2d 365 (1989) (implicit statutory authorization for jurors to take notes); Billings v. People, 171 Colo. 236, 244-45, 466 P.2d 474 (1970) (matter of juror note-taking within sound discretion of court); Kelley v. State, 486 So. 2d 578, 583 (Fla.), cert. denied, 479 U.S. 871, 107 S. Ct. 244, 93 L. Ed. 2d 169 (1986) (whether to allow jurors to take notes and use them during deliberation is question within sound discretion of trial court); Post-Tensioned Construction, Inc. v. VSL Corporation, 143 Ga. App. 148,149, 237 S.E.2d 618 (1977) (“[t]he regulation of a juror’s note-taking is addressed to the sound discretion of the trial court”); Estate of Whittington v. Emdeko Housewares, 96 Ill. App. 3d 1007, 1014, 442 N.E.2d 26 (1981) (no cases forbidding note-taking by a juror of his own volition; counsel cannot request or suggest a jury take notes; “statute [Ill. Rev. Stat. (1979) c. 78, ¶ 36] appears to grant jurors an absolute right to take notes”); Underwood v. State, 535 N.E.2d 507, 518 (Ind.), cert. denied, 493 U.S. 900, 110 S. Ct. 257,107 L. Ed. 2d 206, reh. denied, 493 U.S. 985, 110 S. Ct. 524,107 L. Ed. 2d 524 (1989) (juror note-taking is matter within discretion of trial court and clear error must be shown to establish an abuse of that discretion); State v. Post, 286 N.W.2d 195, 202-203 (Iowa 1979) (jurors may disclose to each other contents of their notes); State v. Jones, 222 Kan. 56, 61, 563 P.2d 1021 (1977) (“the fact a juror takes notes during trial does not create error per se; a defendant must show that there has been prejudice of his substantial rights”); Travis v. Commonwealth, 457 S.W.2d 481, 482 (Ky. 1970) (juror note-taking should be encouraged); Dillon v. State, 27 Md. App. 579, 581-84,
Although we discuss the issue of the confidentiality of the jurors’ notes in Part II of this opinion, we note here that we also agree with the suggestion of the court in United States v. Maclean, 578 F.2d 64, 66 (3d Cir. 1978), that the court should make clear to the jurors that they must not disclose the contents of their notes except to their fellow jurors.
The plaintiff properly preserved this claim for appeal. The defendants requested that the court collect and preserve the jurors’ notes, and the plaintiff specifically joined in that request and in the defendants’ exception to the refusal of the trial court to do so.
The plaintiff inadvertently referred in her brief to interrogatory number 4, rather than number 2. It is clear, however, that this is a typographical error, since the response to interrogatory number 2 is the only response that is consistent with the context of the plaintiff’s argument. Indeed, the response to interrogatory number 4 undercuts the plaintiff’s argument.