CACI 102 Taking Notes During the Trial

California Civil Jury Instructions CACI

102 Taking Notes During the Trial

You have been given notebooks and may take notes during the trial. Do not take the notebooks out of the courtroom or jury room at any time during the trial. You may take your notes into the jury room during deliberations.

You should use your notes only to remind yourself of what happened during the trial. Do not let your note-taking interfere with your ability to listen carefully to all the testimony and to watch the witnesses as they testify. Nor should you allow your impression of a witness or other evidence to be influenced by whether or not other jurors are taking notes. Your independent recollection of the evidence should govern your verdict, and you should not allow yourself to be influenced by the notes of other jurors if those notes differ from what you remember.

[The court reporter is making a record of everything that is said. If during deliberations you have a question about what the witness said, you should ask that the court reporter’s records be read to you. You must accept the court reporter’s record as accurate.]

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]].

Directions for Use

This instruction may be given as an introductory instruction or as a concluding instruction after trial. (See CACI No. 5010, Taking Notes During the Trial).

The bracketed paragraph should not be read if a court reporter is not being used to record the trial proceedings.

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

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 § 3.97 (Cal CJER 2019)