California Civil Jury Instructions (CACI) (2017)

5010. Taking Notes During the Trial

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5010.Taking Notes During the Trial
If you have taken notes during the trial, you may take your notebooks
with you into the jury room.
You may use your notes only to help you remember what happened
during the trial. Your independent recollection of the evidence should
govern your verdict. You should not allow yourself to be influenced by
the notes of other jurors if those notes differ from what you remember.
At the end of the trial, your notes will be [collected and
destroyed/collected and retained by the court but not as a part of the
case record/[specify other disposition]].
New April 2004; Revised February 2005, April 2007, December 2007
Directions for Use
If CACI No. 102, Taking Notes During the Trial, is given as a pretrial instruction,
the court may also give this instruction as a concluding instruction.
In the last paragraph, specify the court’s disposition of the notes after trial. No
statute or rule of court requires any particular disposition.
Sources and Authority
• Juror Notes. Rule 2.1031 of the California Rules of Court.
“Because of [the risks of note-taking], a number of courts have held that a
cautionary instruction is required. For example, [one court] held that the
instruction should include ‘an explanation . . . that [jurors] should not permit
their note-taking to distract them from the ongoing proceedings; that their notes
are only an aid to their memory and should not take precedence over their
independent recollection; that those jurors who do not take notes should rely on
their independent recollection of the evidence and not be influenced by the fact
that another juror has taken notes; and that the notes are for the note taker’s
own personal use in refreshing his recollection of the evidence. The jury must
be reminded that should any discrepancy exist between their recollection of the
evidence and their notes, they should request that the record of the proceedings
be read back and that it is the transcript that must prevail over their notes.’ ”
(People v. Whitt (1984) 36 Cal.3d 724, 747 [205 Cal.Rptr. 810, 685 P.2d 1161],
internal citations and footnote omitted.)
• “In People v. Whitt, we recognized the risks inherent in juror note-taking and
observed that it is ‘the better practice’ for courts to give, sua sponte, a
cautionary instruction on note-taking. Although the ideal instruction would
advert specifically to all the dangers of note-taking, we found the less complete
instruction given in Whitt to be adequate: ‘Be careful as to the amount of notes
that you take. I’d rather that you observe the witness, observe the demeanor of
that witness, listen to how that person testifies rather than taking copious notes
. . . . [I]f you do not recall exactly as to what a witness might have said or you
disagree, for instance, during the deliberation [sic] as to what a witness may
have said, we can reread that transcript back . . . . ’ ” (People v. Silbertson
(1985) 41 Cal.3d 296, 303 [221 Cal.Rptr. 152, 709 P.2d 1321], internal citations
and footnote omitted.)
Secondary Sources
Wegner, et al., California Practice Guide: Civil Trials & Evidence, Ch. 7-D, Jury
Management During Trial—Jurors’ Notes, ¶ 7:41 et seq. (The Rutter Group)
Deskbook on the Management of Complex Civil Litigation, Ch. 2, Case
Management, § 2.81[5] (Matthew Bender)
28 California Forms of Pleading and Practice, Ch. 326, Jury Instructions, § 326.32
(Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) § 4.97 (Cal CJER