Esaw v. Friedman

• Decision Date: 26 February 1991
• Docket Number: No. 13865,13865
• Parties: Adria ESAW v. Stephen C. FRIEDMAN et al.
• Court: Connecticut Supreme Court

Page 1164

586 A.2d 1164

217 Conn. 553

Adria ESAW v. Stephen C. FRIEDMAN et al.

No. 13865.

Supreme Court of Connecticut.

Argued Dec. 14, 1990.

Decided Feb. 26, 1991.

Dennis M. Laccavole, Bridgeport, for appellant (plaintiff).

J. Kevin Golger, Fairfield, for appellees (defendants).

Before SHEA, GLASS, HULL, BORDEN and FRANCIS X. HENNESSY, JJ.

BORDEN, Associate Justice.

The principal issues of this appeal are whether jurors may be 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; ¹ (2) should have marked the jurors' notes for identification; and (3) should have set aside the verdict as inadequate. We affirm the judgment.

This appeal arose out of an accident in 1985 in which an automobile operated by the named defendant, Stephen C. Friedman, ² struck an automobile operated by the plaintiff, Adria Esaw, from the rear. The plaintiff had slowed down for traffic prior to entering the Connecticut Turnpike from an entrance ramp. The plaintiff claimed that as a result of the defendant's negligence she suffered the following injuries: acute injury to her cervical and lumbar spine; severe headaches, vertigo and nausea; severe pain and numbness in her arms, shoulders and chest, radiating into her legs, knees and feet; and an aggravation of a prior neck and back injury. The jury answered interrogatories finding the defendant negligent, and the plaintiff 20 percent contributorily negligent. ³ The jury awarded damages of $2500 to the plaintiff, reduced by $500 attributable to her contributory negligence, for a net award of $2000. The plaintiff moved to set aside the verdict claiming, inter alia, that the verdict was inadequate and that the court should not have permitted the jurors to take notes during the trial or to take those notes into the jury deliberation room. ⁴ The plaintiff also moved for an additur. The court denied the motions and rendered judgment in accordance with the verdict. The plaintiff appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book 4023.

I

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. ⁵ In its final instructions at the end of the trial, the court again referred to its initial instructions permitting the jurors to take notes and repeated its warnings to them regarding the use of the notes. ⁶

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. ⁷ Thus, it is plain that the plaintiff did not raise an objection on the record to the procedure of note-taking by the jurors until she moved to set aside the verdict. Although in other circumstances such a belated objection might preclude review, in this case we exercise our appellate discretion to review the plaintiff's claim because of its importance to the proper management of trials by trial judges. Thus, it is in the interests of justice and the public welfare that the issue be decided. See Kravanewsky v. Zoning Board of Appeals, 160 Conn. 397, 401, 279 A.2d 567 (1971).

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 evidence, was mistakenly given to the jury and affected the verdict. Id., at 545. The court stated: "The jury room cannot be guarded with too much vigilance and jealousy. Courts must reject all evidence not received on the trial, and must repel every foreign influence, which may affect the minds of the jury." Id., at 549. This court reiterated that principle in Gimelli v. Waterbury Cadillac Co., 109 Conn. 722, 727, 145 A. 563 (1929), where certain preliminary pleadings were mistakenly given to the jury. Neither Clark nor Gimelli, however, can properly be read as bearing on the issue of note-taking by jurors; it can hardly be said that a juror's own notes, reflecting the thoughts or questions that may have arisen in his mind during the trial or reflecting his attempts to preserve in writing his recollections of the evidence, constitute a "foreign influence, which may affect the minds of the jury." Clark v. Whitaker, supra.

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; ⁸ and our sister states nearly so. ⁹ Indeed, the American Bar Association Standards for Criminal Justice provide that jurors should have the right to do so even without the permission of the trial judge. "Jurors may take notes regarding the evidence presented to them and keep these notes with them when they retire for their deliberations. Such notes should be treated as confidential between the juror making them and the other jurors." III A.B.A. Standards for Criminal Justice § 15-3.2 (2d Ed.1980). The commentary to this section states that "[t]he thrust of this standard is to permit note taking by jurors as a matter of right without permission of the court." III A.B.A. Standards for Criminal Justice § 15-3.2, Id., commentary, p. 15.84. By contrast, rule 513(e) of the Uniform Rules of Criminal Procedure leaves the matter to the trial court's discretion. See III A.B.A. Standards for Criminal Justice, supra.

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. III A.B.A. Standards for Criminal Procedure 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.

We need not decide whether, in the abstract, the risks involved in the process of note-taking by jurors outweigh or are outweighed by the benefits that may flow therefrom. We are convinced "that...