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Try to remember life before law school. Ever heard of a tort? If so, you probably thought it was something to eat. How about "contributory negligence" or "punitive damages"? Maybe on L.A. Law, but it is unlikely you understood the meaning of any significant legal terminology.

Now, try to remember your confusion during the first year of law school. Bad memories? Although some of you may be in denial, the truth is, it probably took four hours to read your first case because you had to locate every other word in Black's Law Dictionary. More importantly, you were more inclined than the average juror to retain information because law students are actually interested in, perhaps even excited about, learning the intricacies of the legal system. Most law students take notes in every class to encourage information recall.

Now, imagine yourself as an average juror, without law school training or enthusiasm for the law, and possibly without undergraduate school or a high school diploma. You have never heard of the plaintiff, the defendant, or the facts of the case, and the judge expects you to remember what each witness said after five full days of trial, without taking notes. Sound difficult? Proponents of jury note taking think so.

The origin of trial by jury has long baffled historians. In History of Trial by Jury, William Forsythe wrote that the origin of the jury "is lost in the night of time." J. Kendall Few, In Defense of Trial by Jury, 9 (1993)(quoting William Forsythe, History of Trial by Jury,(Lenox Hill Publishing Co. 2d ed. 1878)). Some historians believe that in the earliest civilized period the jury system evolved among the Greeks and was brought to England by the Romans. Id. Other historians believe Alfred the Great invented the jury system between 871 and 899 A.D. Id.

Despite conflicting opinions on the origin of trial by jury, all historians appear to agree the laws of King Henry II (1154-1189)and the Magna Carta of King John in 1215 A.D. spurred the development of the modern jury system. Id. at 10. Henry II, King of England, granted his subjects the right to a jury trial, but jurors were often punished for unpopular verdicts. Id. at 10, 18. On June 15, 1215, the Magna Carta, called the "Symbol of Freedom Under Law", banned the practice of punishing jurors for unpopular verdicts. Id. at 18. The 39th clause provided

No freeman shall be seized, or imprisoned, or dispossessed, or outlawed, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land.

Id. at 1.

In 1468, Sir John Fortescue, Chief Justice of the King's Bench, proclaimed trial by jury "the most rational and effective method for discovering the truth." Id. at 27. Despite public enthusiasm for the jury system, anti-jury forces virtually eradicated English jury trials in the mid-to-late 19th century and the early 20th century. Id. The William Owen trial in 1752 was the beginning of the downfall of civil jury trial in England. Id. Unable to identify the author of an allegedly libelous pamphlet describing the House of Commons as employing "tyrannical acts of oppression", the House directed the Attorney General to prosecute the printer(s) or publisher(s) of the pamphlet. Id. at 289, 292. Mr. Owen, a book seller, was tried on July 6, 1752, and the defense attorney argued that Mr. Owen was the printer, not the author of the pamphlet. Id. at 292. The jury, comprised of grocers, drapers and merchants, courageously found Mr. Owen not guilty of seditious libel. Id. at 293.

The British Parliament never recovered from the William Owen trial. In 1852, the Common Law Procedure Act introduced the possibility of trial by judge, rather than jury. Id. at 438. In 1883, the Supreme Court Rules provided that "the right to a civil jury trial was limited to actions for slander, libel, false imprisonment, malicious prosecution, seduction and breach of promise of marriage." Id.

Criminal jury trials are also extremely rare in England. Id. In the mid-19th century, most criminal cases were redistributed into magistrate courts. Id. By 1962, magistrates had jurisdiction over embezzlement, certain theft, receiving offenses, criminal damage, serious assaults, forgery, attempted suicide, and certain burglary offenses. Id.

In the United States, the right to trial by jury is guaranteed by the sixth and seventh amendments to the Federal Constitution. In 1788, Thomas Jefferson stated that trial by jury is "the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution." Am. Jury Trial Found., The Spirit of America, 3 (1995). The right to trial by jury is rarely found in other parts of the world. J. Kendall Few, In Defense of Trial by Jury, 441-448 (1993). Allowing jury trials has been described as a "human face on the law". Ariz. Sup. Ct. Comm. on the More Effective Use of Jurors, Jurors: The Power of 12, 1 (1994).

The American Bar Association, Brookings Symposium, recently identified five virtues of the civil jury system in an effort to support a strong commitment to jury reform. A.B.A./Brookings Symposium, Charting the Future for the Civil Jury System, 8-10 (1992). First, the group stressed that jury trial is a valuable process for decisionmaking and an effective means for arriving at a fair resolution of disputed facts. Id. at 8. Second, they argued that a jury provides protection against potential abuse of power by government, judges, or other powerful entities. Id. at 9. Third, the group noted the jury introduces broadly based community values to dispute resolution. Id. Fourth, they urged that the jury provides a check on the bureaucratization and professionalization of the legal system. Id. at 10. Finally, the group reasoned that the jury system provides a means for legitimizing the outcome of dispute resolution and facilitating public understanding and confidence in the legal system. Id.

Despite fundamental support for jury trial in the American system of jurisprudence, increasing public criticism of jury trial procedures has spurred efforts to improve the system. Ariz. Supr. Ct. Comm. on the More Effective Use of Jurors, Jurors: The Power of 12, 1 (1994). By 1995, courts and bar associations in twenty seven states had established task force committees to review jury service, jury trials, and jury verdicts in an attempt to modernize rules which have not substantially changed in the past 200 years. Id.; Mark Curriden, Jury Reform, A.B.A. J., 73 (Nov. 1995). Arizona and California, the leading states in the area of jury reform, recently proposed radical changes to improve the jury system. Ariz. Supr. Ct. Comm. on the More Effective Use of Jurors, Jurors: The Power of 12, (1994); Final Report of the Cal. Blue Ribbon Comm. on Jury System Improvement (1996).

A principal concern among proponents of jury reform is the low-level of juror retention and comprehension of court instructions and evidence, leading to unjust verdicts. Id. Juror note taking is one tool suggested to improve juror attention, retention and understanding during trial. Id.

The California Blue Ribbon Commission on Jury System Improvement proposed the following model rule on juror note taking:

Jurors shall be permitted to take written notes in all civil and criminal cases. The trial judge shall inform jurors of their right to take written notes at the beginning of the trial. After the verdict and before the jury is discharged, the trial judge shall determine in his or her discretion whether juror notebooks, if any, must be turned into the court or may be retained by the jurors.

Final Report of the Cal. Blue Ribbon Comm. on Jury System Improvement, 122 (1996). Proponents of jury note taking argue jurors should not be expected to understand and remember facts and issues presented during lengthy, complex litigation. Ariz. Supr. Ct. Comm. on the More Effective Use of Jurors, Jurors: The Power of 12, 2 (1994). Instead, they should be allowed to take notes during trial to facilitate jury deliberation. Id.

In a time when illiteracy was common, courts traditionally resisted juror note taking. Woodcock, Note Taking By Jurors, 55 Dickinson L. Rev. 335 (1951). In 1872, the Supreme Court of Indiana stated that "the juror is to register the evidence, as given, on the tablets of his memory, and not otherwise." Cheek v. State, 35 Ind. 492, 495 (In. 1872). In Cheek, two jurors, over the objection of the defendant and prohibition by the court, took notes during trial. Id. at 494. The court held that juror misconduct entitled the defendant, who was indicted for first-degree murder, to a new trial. Id. at 495.

In Indianapolis & St. Louis R.R. Co. v. Miller, 71 Ill. 463, 465 (Ill. Supr. 1874), the Supreme Court of Illinois held that courts should not allow attorneys to direct jury members to record, "with pencil and paper", damage amounts to be used in the jury room. However, the court reasoned that jurors could take notes of their own accord. Id.

Typically, early courts believed that undue weight would be given to the opinions of one or two men on an average jury with the ability to take notes. See Cheek; Indianapolis & St. Louis R.R. Co.; Miller v. Commonwealth, 175 Ky. 241 (1917). Courts reasoned that jurors unable to take notes would question their own memories and opinions when faced with written discourse of the trial. See e.g., Cheek; Indianapolis & St. Louis R.R. Co.; Miller. Courts feared that if the note taking juror erred while writing and the other jurors relied on his opinion, the verdict could be altered. See e.g., Cheek; Indianapolis & St. Louis R.R. Co.; Miller.

In United States v. Davis, 103 F. 457, 470 (C.C.W.D. Tenn. 1900), the court held that the practice of juror note taking was improper. The court reasoned that

[W]ithout a corrupt purpose, his notes may be inaccurate, or meager or careless, and loosely deficient, partial, and altogether incomplete. With a corrupt purpose, they may be false in fact, entered for the purpose of misleading or deceiving his fellows when he comes to appeal to them. There is no protection against such dangers except to forbid the practice.

Id.

Courts also believed that note taking jurors would concentrate heavily on writing and fail to observe witness testimony. See Thornton v. Weaber, 112 A.2d 344, 347 (Pa. Supr. 1955); Cheek. Thus, gaps in the juror's notes could cause faulty reasoning in the jury room. See Thornton; Cheek. Further, courts speculated that a juror taking notes would appear more alert and informed than jurors not taking notes, and "a juror hurriedly scribbling notes" might divert other jurors' attention from the trial. See Thornton; Cheek.

Opponents of jury note taking continue to embrace arguments articulated by courts over one hundred years ago. However, as literacy among Americans has increased throughout the years, more courts have begun to accept note taking by jurors as a valid tool. See U.S. v. Carlisi, 32 F.Supp. 479, 483 (E.D.N.Y. 1940). Proponents of jury note taking argue that note taking aids juror comprehension and recall of important facts in evidence, results in greater juror satisfaction with the trial and verdict, and leads to a more just verdict. Larry Heuer and Steven Penrod, Juror Notetaking and Question Asking During Trials, 18 Law & Hum. Behav., 123 (1994).

Advocates of note taking also argue that jurors should be encouraged to actively participate in the trial process. A.B.A./ Brookings Symposium, Charting a Future for the Civil Jury System, (1996). Advocates reason that courts should utilize modern methods of communication and recognize tools available to assist jurors in reaching cogent decisions. Id.

Today, an overwhelming majority of states, as well as the District of Columbia, allow juror note taking. Only four states, New Mexico, Louisiana, Pennsylvania, and South Dakota, have statutes which specifically prohibit note taking by jurors. Further, the number of states with statutes or rules allowing note taking has risen from nine states in 1960 to 21 states in 1996.

The Pennsylvania State Courts consistently and vehemently argue against note taking by jurors. In Thornton v. Weaber, 112 A.2d 344, 347 (Pa. Supr. 1955), the court held that a trial judge should not instruct a jury to take notes on monetary amounts mentioned by the judge during the course of trial. The court found that note taking is generally forbidden in Pennsylvania and reasoned that jurors might develop a distorted view of the case by emphasizing one feature over other features. Id. at 348.

Despite Pennsylvania's solid policy against note taking, in Fisher v. Strader, 160 A.2d 203 (Pa. Supr. 1960), the court held that note taking by jurors during trial did not constitute prejudicial error where notes were not present in the jury room. The court found that juror misconduct during trial did not warrant a new trial in the absence of prejudice to the rights of parties involved. Id. at 204.

Similarly, in State v. Matthieu, 527 So.2d 530 (La. App. 1988), the court held that despite a Louisiana rule prohibiting note taking, the trial court's failure to instruct jurors not to refer to notes during deliberations was not a prejudicial error, absent proof that jurors relied on notes in reaching a verdict. Further, in State v. Ledet, 298 So.2d 761 (La. App. 1974), the Louisiana court found that notes taken and referred to by a juror did not constitute reversible error.

The holdings in Thornton, Matthieu, and Ledet suggest that even in states which prohibit note taking, courts hesitate to set aside verdicts when faced with violations of the note taking rule. Although Ohio allows jury note taking, in Corbin v. City of Cleveland, 56 N.E.2d 214 (Ohio Supr. 1944), the court reversed the judgment of the Court of Common Pleas based on evidence of an extensive statement by the trial judge advocating note taking by jurors. The court reasoned that "such conduct on the part of the court could easily be interpreted by the jurors as indicating that it is a part of their duty as jurors to take notes..." Id. at 215. In 1944, Ohio had not fully accepted the idea of jury note taking and the court frowned on judicial persuasion in the absence of a request by either party. Id.

Today, the majority of courts allow, and may even encourage, juror note taking. In United States v. Campbell, 138 F. Supp. 344 (N.D. Io. 1956), the court granted a jury's request to take notes while the court reporter reviewed testimony of six witnesses. The Appellate Court upheld the trial court's ruling and stressed that

[O]nly... in an exceptional situation should a juror be stopped by the court from taking notes on his own volition, and...only in an exceptional situation should the request of the jury for leave to take notes be denied.

Id. at 353.

Although none of the federal district courts have promulgated statutes or rules concerning note taking, the general rule in the federal courts is it is within the sound discretion of the trial judge to allow the jury to take notes during trial and to use them during deliberations. See U.S. v. Johnson, 584 F.2d 148 (6th Cir. 1978); U.S. v. Rhodes, 631 F.2d 43 (5th Cir. 1980); U.S. v. Anthony, 565 F.2d 533 (8th Cir. 1977); U.S. v. Riebold, 557 F.2d 697 (10th Cir. 1977); and U.S. v. Braverman, 522 F.2d 218 (7th Cir. 1975). In U.S. v. Chiarella, 184 F.2d 903 (2d Cir. 1950), Judge Learned Hand held that although the dangers of note taking appear "far-fetched", forbidding jurors to take notes of evidence during trial is also a matter of judicial discretion. Judge Hand noted that the question has not generally been whether the trial judge must permit the practice, but whether he must forbid it. Id. at 907.

Significantly, empirical research on the effect of juror note taking on the trial process provides support for advocates of an active, rather than traditionally passive, jury process. Psychological research suggests that taking notes potentially increases comprehension and/or recall. Lynne ForsterLee, et al., Effects of Notetaking on Verdicts and Evidence Processing in a Civil Trial, 18 Law & Hum. Behav., 568 (1994). Compared to non-notetakers, jurors taking notes exhibit superior recall and an "enriched subjective experience." David L. Rosenhan, et al., Notetaking Can Aid Juror Recall, 18 Law & Hum. Behav., 59 (1994). Further, research suggests note taking may help reduce juror frustration and lead to significant improvements in juror performance. Robert MacCoun, Improving Jury Comprehension in Criminal and Civil Trials, 1 (1995).

Interestingly, the authors of Notetaking Can Aid Juror Recall noted the results for jurors who declined to take notes equaled the positive results for jurors permitted to take notes. Although in-depth study was impossible due to the small pool of note-decliners, the authors concluded that jurors who decided against taking notes either possessed alternate skills for memorizing and comprehending information, or that the opportunity to take notes, rather than note taking itself, elevated recall. Id.

Not all studies find note taking helpful. Results from one national field study on juror note taking failed to support the theory that juror notes aid memory or increase satisfaction with the trial or verdict. Larry Heuer and Steven Penrod, Juror Notetaking and Question Asking During Trials, 18 Law & Hum. Behav., 121 (1994). However, the authors concluded that several oft-cited disadvantages of juror note taking are also unsupported. Id. The study demonstrated that note taking jurors do not distract other jurors, nor do they exert undue influence over non-notetakers. Id. at 138. Further, juror notes represented an accurate record of the trial, jurors did not appear to overemphasize evidence noted during trial, and juror notes did not produce a distorted view of the case. Id. at 137.

Juror note taking appears to have little, if any, downside. States that disallow note taking should eliminate the prohibition. Courts that only allow juror note taking upon juror request should inform jurors at the beginning of the trial of their right to take notes.

The process of trial by jury is a frontier for development and improvement. Juror note taking appears to be helpful, and should therefore be encouraged. The adoption of a rule similar to California's Model Rule would be a positive step. Courts could also provide the materials and equipment necessary for note taking. If courts allow jury note taking, why not provide a desk-type chair in the jury box, so that jurors are better able to write? Why not allow jurors to read the transcript of the trial? Why not allow the trial to be videotaped for juror review during deliberations? Why not allow jurors to ask questions? In the search for a more effective jury system, all these questions should be considered and answered by courts and task force committees around the country.

Try again to imagine your first year of law school. What if your school did not allow you to take notes or ask questions in class? Would your exam grades represent justice, or simply an inability to fully develop your knowledge of the law?