Sligar v. Bartlett

• Decision Date: 16 April 1996
• Docket Number: No. 83222,MID-CONTINENT,83222
• Citation: 1996 OK 144,916 P.2d 1383
• Parties: Jack D. SLIGAR, Jr. and Valerie Sligar, Husband and Wife, Appellees/Plaintiff, v. Flora BARTLETT and/or John Doe, individually and as personal representative of the Estate of Paul Bartlett, Deceased, and Flora Bartlett and/or John Doe as Administrator of the Estate of Paul Bartlett, Deceased, Appellants/Defendants, v.CASUALTY COMPANY, Appellant/Intervenor.
• Court: Oklahoma Supreme Court

Page 1383

916 P.2d 1383

1996 OK 144

Jack D. SLIGAR, Jr. and Valerie Sligar, Husband and Wife, Appellees/Plaintiff, v. Flora BARTLETT and/or John Doe, individually and as personal representative of the Estate of Paul Bartlett, Deceased, and Flora Bartlett and/or John Doe as Administrator of the Estate of Paul Bartlett, Deceased, Appellants/Defendants, v. MID-CONTINENT CASUALTY COMPANY, Appellant/Intervenor.

No. 83222.

Supreme Court of Oklahoma.

April 16, 1996.

Rehearing Denied May 22, 1996.

A. Mark Smiling, Scott R. Taylor, Wilburn, Masterson & Smiling, Tulsa, for Appellant, Flora Bartlett.

David Humphreys, Gerald L. Hofmeister, The Humphreys Law Firm, Tulsa, for Appellee, Jack D. Sligar, Jr.

SUMMERS, Justice:

Consideration of two questions will dispose of this appeal: (1) Did the trial court err in permitting jurors to take notes during a personal injury trial and use those notes during deliberations? (2) Did the trial court abuse her discretion in awarding Plaintiff a new trial after a Defendant's verdict? The answer to the first is no, but because the answer to the second is also no, for reasons we will explain, the order granting a new trial is affirmed.

The Plaintiff, Jack Sligar, sustained injury when his car was hit by a vehicle driven by the defendant, Paul Bartlett, deceased. Plaintiffs brought suit and a jury trial was held. During opening statements Plaintiff's counsel observed a juror taking notes and informed the trial court. The judge assured both parties that the notes would be confiscated before deliberations. However, when the jury went out to deliberate neither counsel reminded the trial court of the notetaking, and the court did not confiscate the notes. Apparently, the jury relied on the notes to some degree in reaching a verdict for the Defendant.

After discovering the content of the notes, in which a juror wrote that she "saw Jack in hall smoking--no limp sometimes," Plaintiffs moved for a new trial. The trial court granted the motion on the grounds that "the court should have confiscated the notes". Defendant appealed and the Court of Appeals reversed. The appellate court held it was within the trial court's discretion to permit jurors to take notes, citing State ex rel. Dept of Highways v. Lehman, 462 P.2d 649 (Okla.1969), and thus concluded that because notetaking is permissible, it was error for the trial court to have granted a new trial. We

have granted certiorari. We now vacate the Court of Appeals opinion and reinstate the trial court's grant of a new trial.

I. NOTETAKING BY JURORS

In civil cases Oklahoma departs from the common law rule and permits the issue of notetaking by jurors to be left to the discretion of the trial judge. In State ex rel. Dept. of Highways v. Lehman, supra, the trial court granted a new trial because a juror was permitted to take notes, and the defendant did not voice an objection because of the fear of resentment by that juror. Noting that a "vast majority" of jurisdictions have permitted notetaking, this Court held that notetaking could be permitted and was within the discretion of the trial court. Id. at 651.

It is known that trial judges, appellate judges and attorneys take notes during a trial or hearing to refresh their memory. Why should a juror be treated any differently? It is not a question of allowing the introduction into a jury room during deliberations of an outside memo or matter that has not come through the critical eye of the trial judge, such as a memo or matter that was excluded from or not introduced into evidence. The notes of a juror are merely an aid in determining what took place in the court room just the same as if he had used his power of recall or memory. It is common knowledge that all do not possess the same degree of retentiveness or recall. If a juror feels that it would aid in his rendering a more informed opinion upon the issues of the trial, there is no reason why this court should stand in his way. This rule is, of course, subject to the discretion of the trial judge in maintaining an atmosphere of a fair impartial trial. Id. at 651.

The case did not report that the juror took her notes into the deliberation room, but since the case did not report otherwise it is likely she did. Implicit in the ruling is that she could have done so permissibly. This ruling was upheld in Cleary Petroleum, Inc. v. Copenhaver, 476 P.2d 327, 329 (Okla.1970).

The Oklahoma Court of Criminal Appeals has held differently. In Glazier v. State, 514 P.2d 87 (Okla.Crim.App.1973) that Court held that it is within the discretion of the court to permit a juror to take notes, but such notes must never be used during deliberations. In White v. State, 552 P.2d 1161 (Okla.Crim.App.1976), a juror took notes taken during the trial into deliberations. The Court of Criminal Appeals held this error did not warrant reversal because the notes were not used during the deliberations.

At early common law jurors were not permitted to take notes because most were unable to read or write. Watkins v. State, 216 Tenn. 545, 393 S.W.2d 141, 144-145 (1965). The common law rule grew from a suspicion that a "lettered" juror would be revered, and thus excessively persuasive to the other jurors who could not read or write. To guard against this notetaking was prohibited. Id.

Currently, an overwhelming majority of both state and federal courts allow trial courts the discretion to decide whether notetaking by jurors would be beneficial in a particular case. ¹ In so doing, many have acknowledged the arguments against notetaking The principal arguments against notetaking are that (1) a good notetaker may dominate the jury, (2) a dishonest juror may falsify his or her notes and influence the outcome, and (3) the notetaking process may distract the jurors in the courtroom by allowing them to concentrate on notetaking rather than the evidence presented. Price v. State, 887 S.W.2d 949, 951 (Tex.Crim.App.1994); Esaw v. Friedman, 217 Conn. 553, 586 A.2d 1164, 1169 (1991); State v. Kipf, 234 Neb. 227, 450 N.W.2d 397, 414-415 (1990); United States v. Maclean, 578 F.2d 64, 66 (3rd Cir.1978).

and have determined that notetaking, particularly when guided by proper instructions from the bench, is helpful to jurors.

An analysis of these arguments reveals that each of the concerns may be unwarranted, or at the very least, alleviated by the giving of appropriate instructions. As for the problem of a dominating juror, this may happen regardless of whether notetaking occurs. The fact that notes were taken by a particular juror does not necessarily lead to the conclusion that the same juror will dominate the deliberations. As for a dishonest juror, the simple ability to take notes will not encourage dishonesty. If the juror is dishonest he or she may falsify his or her memory of the evidence. However, if the juror is not dishonest, but has trouble remembering the evidence, notetaking will help clarify the juror's memory. As for the risk that the juror will fail to focus on the evidence presented, the trial court should instruct the jury that notes are only a secondary means of remembering. The primary concern during the trial and the deliberations must be on the evidence and the witnesses. While notetaking might be distracting in some instances, we find it more likely that the taking of notes will help keep a juror focused on the testimony. See Esaw, 586 A.2d at 1169.

We find our ruling in Lehman still sound. We see no reason to refuse a juror the freedom to take notes, if in the discretion of the trial court the court believes that it would aid the jurors, particularly in a complicated matter. Judges and lawyers universally use notes as an aid to memory, and we see no need to treat a juror differently, as long as the trial court determines that notetaking would be helpful and would not disrupt the "atmosphere of a fair impartial trial." Lehman, at 651. ²

Our final observation on notetaking is that the notes are not to be included in the record on appeal. State v. Kipf, 234 Neb. 227, 450 N.W.2d 397, 415 (1990). The notes are to be treated as confidential between the juror and the other jurors. They must be destroyed in the presence of the Court immediately upon acceptance and filing of the verdict. Although failure to destroy the notes will not per se constitute reversible error, in the absence of some highly extraordinary circumstances there is no basis for appellate review of the juror's notes. Nor will they serve to impeach the jury's verdict. Esaw, 586 A.2d at 1170. To review a juror's notes would violate the sanctity of the deliberative process. Id. As the Ohio appellate court stated in State v. Williams, 80 Ohio App.3d 648, 610 N.E.2d 545, 548 (1992), the parties have "no more right to examine these writings than [they] do to interrogate the jurors about their verdict. The notations are personal to the jurors and will not be laid open for inspection and debate."

II. GRANT OF NEW TRIAL

Recently, in Propst v. Alexander, 898 P.2d 141, 144-145 (Okla.1995), we reviewed the standard used when considering a trial court's grant of a new trial. The bottom line is that the trial court is given wide discretion in granting a new trial. Propst, at 144; Austin v. Cockings, 871 P.2d 33, 34 (Okla.1994). Reversal of a trial court's grant of new trial can only be had when "the trial court has manifestly erred with respect to some pure, simple, and unmixed material question of law, and that except for such error the ruling of the trial court would not have been made." Propst, at 145, quoting Pfrimmer v. Johnson, 195 Okla. 33, 154 P.2d 765 (1944). Furthermore, when the new trial is granted by the same judge who tried the case, "a much stronger showing of error or abuse of discretion is required for this Court to reverse than if a party appeals from a refusal to grant a new trial." Propst, at 145.

We thus view the trial court's discretion in the grant of a new trial as broad. Because ...