1323 Order rescinding rule 644; promulgating new rule 644; amending rule 646, and approving the revision of the comment to rule 647; no. 323 criminal procedural rules; doc. no. 2
[234 PA. CODE CH. 6] Order Rescinding Rule 644; Promulgating New Rule 644; Amending Rule 646, and Approving the Revision of the Comment to Rule 647; No. 323 Criminal Procedural Rules; Doc. No. 2 [35 Pa.B. 3917] The Criminal Procedural Rules Committee has prepared a Final Report explaining the June 30, 2005 rescission of current Rule of Criminal Procedure 644 (Note Taking by Jurors); promulgation of new Rule of Criminal Procedure 644 (Note Taking by Jurors); amendments to Rule of Criminal Procedure 646 (Materials Permitted in Possession of the Jury); and revision of the Comment to Rule of Criminal Procedure 647 (Request for Instructions, Charge to the Jury, and Preliminary Instructions). New Rule 644, which will be effective August 1, 2005, permits jurors to take notes during criminal trials on a three-year trial basis, and establishes the procedures for note taking. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this 30th day of June, 2005, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 33 Pa.B. 2164 (May 3, 2003), and a Final Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that
(1) Rule of Criminal Procedure 644 is rescinded;
(2) new Rule of Criminal Procedure 644 is promulgated;
(3) Rule of Criminal Procedure 646 is amended; and
(4) the Comment revision to Rule of Criminal Procedure 647 is approved; all in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective August 1, 2005.
Mr. Justice Nigro dissents.
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] (Reserved).
[The jurors shall not be permitted to take notes during the course of the trial.
Comment This rule codifies the present Pennsylvania practice that discourages note taking by jurors. Cf. Fisher v. Strader, 160 A.2d 303 (Pa. 1960); Thornton v. Weaber, 112 A.2d 344 (Pa. 1955) (both involving civil cases); Commonwealth v. Fontaine, 128 A.2d 131 (Pa. Super. 1956) (involving a criminal case).]
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, and replaced by new Rule 644.
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. [1477] 1478 (March 18, 2000).
Final Report explaining the rescission of present Rule 644 published with the Court's Order at 35 Pa.B. 3919 (July 16, 2005).
Rule 644. Note Taking by Jurors.
(A) When a jury trial is expected to last for more than two days, jurors shall be permitted to take notes during the trial 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 unrepre- sented, 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 paying full attention to the evidence and evaluating witness credibility;
(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.
(C) This rule is rescinded three years from the effective date.
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 is a temporary rule promulgated for the purpose of assessing whether juror note taking in criminal cases is beneficial to the system of justice in Pennsylvania.
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.
Your notes may help you refresh your recollection of the testimony and 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.
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. 3919 (July 16, 2005).
Rule 646. Material Permitted in Possession of the Jury.
* * * * * (C) The jurors shall be permitted to have their notes for use during deliberations.
Comment This rule prohibits the jury from receiving a copy of the indictment or information during its deliberations. The rule also prohibits the jury from taking into the jury room any written or otherwise recorded confession of the defendant. In Commonwealth v. Pitts, 450 Pa. 359, 301 A.2d 646, 650 n. 1 ([Pa.] 1973), the Court noted that ''it would be a better procedure not to allow exhibits into the jury room which would require expert interpretation.''
The 1999 amendment to paragraph (B) makes it clear that the trial court is prohibited from sending written jury instructions with a jury for use during deliberations. See Commonwealth v. Karaffa, 551 Pa. 173, 709 A.2d 887 ([Pa.] 1998), in which the Court held it was reversible error to submit written jury instructions to the jury.
The 1996 amendment adding ''or otherwise recorded'' in paragraph (B)(2) is not intended to enlarge or modify what constitutes a confession under this rule. Rather, the amendment is only intended to recognize that a confession can be recorded in a variety of ways. See Commonwealth v. Foster, 425 Pa. Super. 61, 624 A.2d 144 ([Pa. Super.] 1993).
Paragraph (C) was added in 2005 to make it clear that the notes the jurors take pursuant to Rule 644 may be used during deliberations.
* * * * * Official Note: Rule 1114 adopted January 24, 1968, effective August 1, 1968; amended June 28, 1974, effective September 1, 1974; Comment revised August 12, 1993, effective September 1, 1993; amended January 16, 1996, effective July 1, 1996; amended November 18, 1999, effective January 1, 2000; renumbered Rule 646 March 1, 2000, effective April 1, 2001; amended June 30, 2005, effective August 1, 2005.
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. [1477] 1478 (March 18, 2000).
Final Report explaining the amendment concerning jurors' notes published with the Court's Order at 35 Pa.B. 3919 (July 16, 2005).
Rule 647. Request for Instructions, Charge to the Jury, and Preliminary Instructions.
* * * * * Comment * * * * * Paragraph (D), added in 1985, recognizes the value of jury instructions to juror comprehension of the trial process. It is intended that the trial judge determine on a case by case basis whether instructions before the taking of evidence or at anytime during trial are appropriate or necessary to assist the jury in hearing the case. The judge should determine what instructions to give based on the particular case, but at a minimum the preliminary instructions should orient the jurors to the trial procedures and to their duties and function as jurors. In addition, it is suggested that the instructions may include such points as note taking, the elements of the crime charged, presumption of innocence, burden of proof, and credibility. Furthermore, if a specific defense is raised by evidence presented during trial, the judge may want to instruct on the elements of the defense immediately after it is presented to enable the jury to properly evaluate the specific defense. See also Pennsylvania Suggested Standard Criminal Jury Instructions, Chapter II (1979).
Official Note: Rule 1119 adopted January 24, 1968, effective August 1, 1968; amended April 23, 1985, effective July 1, 1985; renumbered Rule 647 and amended March 1, 2000, effective April 1, 2001; Comment revised June 30, 2005, effective August 1, 2005.
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. [1477] 1478 (March 18, 2000).
Final Report explaining the Comment revision concerning the note taking instruction published with the Court's Order at 35 Pa.B. 3919 (July 16, 2005).
FINAL REPORT1 New Pa.R.Crim.P. 644; Amendments to Pa.R.Crim.P. 646; and Revision of the Comment to Pa.R.Crim.P. 647 Juror Note Taking On June 30, 2005, effective August 1, 2005, upon the recommendation of the Criminal Procedural Rules Committee, the Court rescinded current Rule of Criminal Procedure 644 (Note Taking by Jurors); promulgated new Rule of Criminal Procedure 644 (Note Taking by Jurors); amended Rule of Criminal Procedure 646 (Materials Permitted in Possession of the Jury); and approved the revision of the Comment to Rule of Criminal Procedure 647 (Request for Instructions, Charge to the Jury, and Preliminary Instructions). New Rule 644 permits jurors to take notes during criminal trials on a three-year trial basis, and establishes the procedures for note taking.
I. INTRODUCTION
New Rule 644 and the correlative rule changes are the result of lengthy discussions, extensive and thorough research, and a nationwide evolution in the manner in which jury trials are conducted in both the criminal and civil sides of the courts.
The prohibition on juror note taking was the product of several common misconceptions held by many members of the judiciary and individuals who work within the judicial system concerning how jurors should approach trials to ensure impartial findings: jurors should be passive, and should not be permitted to take or use notes, or ask questions, during trial and deliberations; jurors should be ''clean slates'' and wipe all their life experiences, prejudices, and biases away at the start of trial; jurors should be ''recorders'' and should remember all information that is presented from case orientation through instructions, facts, and charges; and jurors should remain open-minded throughout the trial process. In the last twenty or so years, the extensive research into these misconceptions and studies of juror note taking has revealed that, in reality, active learners learn better, and for example, if jurors take a more active role during the trial process, they better learn about the trial procedures and the facts of the case they are trying; jurors have their lifetime of experiences, prejudices, and biases, and they view the trial through these experiences; people do not and cannot remember everything, and although they may like to recall all that is presented to them during a trial, their memories are selective; and jurors begin to construct a ''story'' in their minds from the moment they begin to hear information concerning the trial.
II. BACKGROUND
During the past several years, the Committee has visited and revisited the concept of jury trial innovations generally, and specifically the issue of note taking by jurors. The Committee's interest in this review is kindled annually by the correspondence we receive from members of the bench, bar, and public suggesting that the prohibition on note taking should be removed. In fact, each time another jurisdiction has changed their rules, statutes, or case law to specifically authorize jurors to take notes during trial, one regular correspondent has sent a request to the Committee to consider proposing that the note taking prohibition be lifted.
The Committee's current ''re-review'' of the note taking issue was undertaken in light of several factors: Pennsylvania is the only jurisdiction that does not permit note taking by jurors in criminal cases and to have an explicit prohibition on note taking by jurors; the issue of note taking by jurors has been receiving a lot of attention from the Legislature, the media, and some Pennsylvania trial judges;2 and the members' own favorable experiences with note taking in other jurisdictions, including the federal courts. In addition, during the time of this re-review, the Court adopted the Civil Procedural Rules Committee's proposal permitting juror note taking in civil cases. See Pa.R.Civ.P. 223.2.
A. Committee Rule History
The issue of jurors taking notes was before the Committee as early as 1965 when the Committee suggested to the Court that note taking by jurors should be permitted in the discretion of the judge. However, after further consideration of this issue, including a thorough review of the case law,3
In a well-reasoned opinion the Supreme Court of Indiana spoke to this subject as follows: ''The juror is to register the evidence, as it is given, on the tablets of his memory, and not otherwise. Then the faculty of the memory is made, so far as the jury is concerned, the sole depository of all the evidence that may be given; unless a different course be consented to by the parties, or the court. Burrill Cir. Ev (2d ed.) 108 and note (a). The jury should not be allowed to take the evidence with them to their room, except in their memory. It can make no difference whether the notes are written by a juror or by some one else. Jurors would be too apt to rely on what might be imperfectly written, and thus make the case turn on part only of the facts. (Cheek v. State, 35 Ind. 492, 495.)''
In Fontaine, the Superior Court reaffirmed the note taking prohibition articulated by the Supreme Court. Finally, in Fisher v. Strader, the Supreme Court reaffirmed its decision in Thornton v. Weaber, again relying on Cheek. (Note: on December 21, 2001, Indiana Rule 20 (Preliminary Instructions) that recognizes juror note taking by requiring trial courts to give the instruction that jurors may take notes was adopted, effective January 1, 2003, after the Indiana Courts since 1970 had eroded the holding in Cheek finding no authority in support of the rule prohibiting juror note taking announced in Cheek. See Stevenson v. State, 742 N.E.2d 463 (Ind. 2001), Maxie v. State, 481 N.E.2d 1087 (Ind. 1985), and Dudley v. State, 263 N.E.2d 161 (Ind. 1970)).
although recognizing that benefits might inure to the judicial process through discretionary permission to take notes, when warranted by the type of evidence presented and accompanied by the proper instructions, the Committee in June 1967 reversed its recommendation explaining to the Court the Committee's view that a blanket prohibition would be easier to administer. In 1984 during a review of the jury trial rules, the Committee recommended to the Court that the rule prohibition concerning note taking by jurors be changed to a permissive rule that would allow jurors to take notes,4 but the Court declined to adopt the recommendation.B. Research
The Committee also researched other jurisdictions' rules, statutes, and case law, particularly our sister states;5 consulted the studies and reports by ''jury innovation experts;''6 and had a presentation by some experts in the field on the current practices nationwide for note taking and other jury innovations.7 All this research has revealed that note taking has been well accepted by the bench, bar, jurors, and parties, has had a positive effect on the trials in which it has been used, and has not caused problems or interruptions or delays in the trial process.
III. DISCUSSION OF RULE CHANGES
A. New Rule 6448
Because the prohibition on note taking by jurors has remained unchanged since 1968, and to emphasize the change to permit note taking, current Rule 644 prohibiting note taking has been rescinded, and new Rule 644 permitting note taking by jurors and establishing the procedures to effectuate note taking was promulgated.
Paragraph (A)
When the Committee published its explanatory Report for comment,9 proposed paragraph (A) provided that juror note taking would be permitted in every case, and the jurors would decide for themselves whether to take notes. At the request of the Court that new Rule 644 conform with the provisions of Civil Rule 223.2, paragraph (A) has been modified to incorporate the same mandatory/discretionary distinction based on the anticipated length of trial as provided in Civil Rule 223.2(a)(1) and the Note, so jurors are permitted to take notes in all cases lasting three days or longer, and in cases lasting two days or less, juror note taking is permitted only in the discretion of the trial judge.
Paragraphs (A)(1) through (A)(8) set forth the requirements for juror note taking. Paragraph (A)(1) prohibits the jurors from taking notes during the judge's charge at the conclusion of the trial. This requirement was added to conform with Civil Rule 223.2(a)(2).
Paragraph (A)(2) requires the court to provide suitable note taking materials to the jurors, and that these ''court supplied'' materials are the only materials the jurors may use for note taking. This paragraph makes it clear that the jurors are not permitted to bring outside materials for note taking. For example, a juror could not bring in his or her laptop computer or palm pilot to ''store'' his or her notes--a practice the Committee thinks would be distracting to other jurors and problematic for the court to control the notes and protect the confidentiality of the notes.
Paragraphs (A)(4), (5), and (6) require the jurors' notes to remain in the custody of the court at all times, spell out when the jurors may have access to their notes, and emphasize the notes of the jurors are confidential and the use of the notes is limited to deliberations. These paragraphs make it clear that the notes of the jurors are the property of the court, and safeguard against misuse, whether intended or unintended, of the notes by ensuring the notes are maintained by the court.
Paragraphs (A)(3) and (A)(8), added to Rule 644 to conform with Civil Rule 223.2(d)(1) and (d)(2), are cautionary provisions that specifically prohibit the attorneys or the defendant from suggesting the jurors take notes or trying to read the notes, and from using the notes for post-trial challenges.
Finally, paragraph (A)(7) requires that, before the verdict is announced, the jury must return their notes to the court, and the court personnel must destroy the jurors' notes upon discharge of the jury. This procedure ensures confidentiality of the notes, and also prevents the notes from becoming the subject of appeals.
Paragraph (B)
Paragraph (B) requires that the judge instruct the jurors about taking notes during the trial. Because of the significant change in practice the new procedure establishes, paragraph (B)(1)--(7) sets forth specific areas of instruction, comparable to the requirements set forth in Civil Rule 223.2(b), including: 1) taking notes is the juror's decision; 2) the importance of not allowing the note taking to interfere with the juror's observation of the proceedings; 3) parameters for using the notes; 4) confidentiality, security, and destruction of the notes. This is the minimum information the judge must explain to the jurors during the instructions.
The Comment augments the jury note taking instructions required by the new rule by setting forth a suggested set of jury instructions related to the jurors taking notes,10 instructions we believe will provide guidance to the judges as they prepare their juror instructions in this new and important area of procedure.
Paragraph (C)
Paragraph (C) sets forth the three-year sunset provision the Court has imposed to provide adequate opportunity to study juror note taking in criminal cases.
B. Correlative Changes: Rules 646 (Material Permitted in Possession of the Jury) and Rule 647 (Request for Instructions, Charge to the Jury, and Preliminary Instructions)
The Committee also is recommending correlative changes to Rules 646 and 647. Rule 646 includes a new paragraph (C) that makes it clear the jury may take their notes with them for use during deliberations. The Comment to Rule 647 has been changed to also include as ''suggested preliminary instructions'' that the trial judge include instructions on note taking.
[Pa.B. Doc. No. 05-1323. Filed for public inspection July 15, 2005, 9:00 a.m.] _______
1 The Committee's Final Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Committee's explanatory Final Reports.
2 See, for example, Pennsylvania Bar Association Civil Litigation Update, Hon. Thomas King Kistler & Hon. Terrence R. Nealon, Juror Note-taking in Civil Trials: An Idea Whose Time Has Come, Volume 5, No. 2 (Spring 2002), at 12.
3 The prohibition on note taking in Pennsylvania evolved from three cases: Thornton v. Weaber, 380 Pa. 590, 112 A.2d 344 (1955); Commonwealth v. Fontaine, 183 Pa. Super. 45, 128 A.2d 131 (1956);and Fisher v. Strader, 399 Pa. 222, 160 A.2d 203 (1960). In Thornton v. Weaber, the Supreme Court firmly established the note taking prohibition with favorable reference to the Indiana Supreme Court's decision in Cheek v. State, 35 Ind. 492 (1871):
4 See Committee's Explanatory Report at 14 Pa.B. 3359 (September 29, 1984). At that time, the Committee was exploring various jury innovations and had been conducting limited, controlled experiments (by the judges on the Committee, with the consent of the parties, followed by exit questionnaires) with juror questions and tape recorded jury instructions.
5 New York; New Jersey; Delaware; Maryland; West Virginia; Ohio; Massachusetts; and Kentucky.
6 See, e.g., Larry Heuer and Steven Penrod, ''Increasing Juror Participation in Trials Through Notetaking and Question Asking,'' 79 Judicature 256 (1996), Larry Heuer and Steven Penrod, ''Tweaking Commonsense,'' 3 Psych. Pub. Pol. and L. 259 (1997), G. Thomas Munsterman, Paula L. Hannaford, and G. Marc Whitehead, Jury Trial Innovations at pp. 141-143 (1997), American Judicature Society, Toward More Active Juries: Taking Notes and Asking Questions (1991), B. Michael Dann, ''Learning Lessons and Speaking Rights: Creating Educated and Democratic Juries, 68 Ind. L.J. 1229 (1993), B. Michael Dann, ''Free the Jury,'' 23 NO.1 Litigation 5 (1996).
7 The presenters were G. Thomas Munsterman, Director for Jury Studies at the National Center for State Courts, Hon. B. Michael Dann, Visiting Fellow at the National Institute of Justice, and Hon. Barry Schneider, Trial Judge in Phoenix, AZ.
8 New Rule 644 is substantively in conformity with Civil Rule 223.2 thereby providing a standard, uniform procedure for juror note taking in civil and criminal cases. However, because the Criminal Rules and Civil Rules historically have been different in style and format, Rule 644 is stylistically and cosmetically consistent with the Criminal Rule format.
9 See 33 Pa.B. 2165 (May 3, 2003).
10 The Handbook of Pennsylvania Trial Judges also advocates note taking and includes a suggested jury note taking instruction that is similar to the suggested note taking instruction the Committee has included in the new Rule 644 Comment.
