CRIMINAL PROCEDURAL RULES COMMITTEE

ADOPTION REPORT

Amendment of Pa.R.Crim.P. 644

Note Taking By Jurors

On December 3 , 2021, effective April 1 , 202 2 , upon recommendation of the Criminal Procedural Rules Committee, the Court amended Rule 644 to clarify (1) that jurors are permitted to take notes during trial regardless of the duration of the trial and (2) that “trial” includes opening statements and closing arguments for purposes of note taking. The Committee has prepared this Adoption Report describing the rulemaking

process. An Adoption Report should not be confused with Comments to the rules. See Pa.R.J.A. 103, Comment. The statements contained herein are those of the Committee,
not the Court.

Pa.R.Crim.P. 644 (Note Taking by Jurors) was adopted in 2005 and largely based

o n Pa.R.C iv .P. 223.2 (Conduct of the Jury Trial. Juror Note Taking), which was adopted

in 2003. However , there were several differences between Pa.R.C iv .P. 223.2 and
Pa.R.Crim.P. 644. Fir st, Pa.R.Civ.P. 223.2 permi t t ed j urors to take notes during “the proceedings” for use in deliberations

, while Pa.R.Crim.P. 644 permit ted note taking “during trial.” Second, Pa.R.Civ.P. 223.2 allowed a judge the discretion to permit note taking in trials lasting more than two days , while Pa.R.Crim.P. 644 require d the judge to allow jurors to take notes in trials lasting more than two days but left to the judge’s

discretion whether to permit note takin g in trials of shorter duration. B oth Pa.R.Civ.P.
223.2 and Pa.R.Crim.P. 644 contain ed prohibitions against note taking during the judge’s

char ge but were silent as to opening statements and closing arguments

.

The Criminal Procedural Rules Committee a nd the Civil Procedural Rules Committee formed a joint subcommittee to discuss the merits of reducing these differences and bring ing greater consistency to t he rules. T he joint subcommittee made

two recommendations : (1 ) the two

- day threshold for juror note taking should be removed ; and (2) t he rules should c larif y that note taking is permitted during opening statements and closing arguments.

Two

- D ay Trial Time L imitation

After receiving the joint subcommittee’s recommendations, t he Committee

discuss ed the extent of the trial judge’s discretion in allo wing juror note taking. Prior to the present amendment, Pa.R.Crim.P. 644 required a presiding judge to permit note taking in trials lasting more than two days but grant ed the judge discretion in trials lasting

less than two days

. The Committee questioned why this time limit was chosen and whether it was an arbitrary limitation. In reviewing the history of Pa.R.Crim.P. 644, it was2

noted that when first adopted, there was some skepticism that not e taking by jurors was

either neces sary or beneficial. As a compromise

, note taking was not permitted during trials lasting less than two days , reasoning that short trials are generally less complex

, while not e taking was permitted during longer trials

, w hich are presumably more complicate d.

The Committee noted that courts have become more accustomed to juror note taking, recognizing the benefits while observing that few of the problems originally feared

with the practice have occurred

. Thus t he Commit tee agreed with the joint subcommit t ee that

, regardless of the length of the trial or its complexity, jurors should be allowed to take

notes and that the two

- day limitation should be eliminated.

Note Taking During Opening S tatements and Closing Arguments

In examining the joint subcommittee’s recommendation, several Committee members shared juror observations. First, taking notes during opening statements aided the jurors in familiarizing themselves with the theories that we re going to be presented during the trial . Those notes also helped them organize their thoughts in anticipation of hearing the evidence

. Second , jurors found that taking notes during closing arguments aided in recalling those arguments. Additionally , it appeared that jurors had no trou ble distinguishing between evidence and argument

.

The Committee also observed that n ote taking throughout the trial , rather than only during the presentation of evidence, offers sever al benefits. First, liberal allowance of

note taking demonstrate s respect for and trust in the jurors and their ability to perform

their duties

. Second, note taking ke eps attorneys accountable; if jurors take notes, attorneys need to take greater care to avoid discrepanc ies between the opening

state ment and what evidence is presented. To the concern that opening statements may
include references to evidence that is ultimately precluded, curative instructions are a n available remedy

— it was also noted that there are instances during the presentation of

evidence wh en testimony can be stricken. Finally, it was observed that the federal courts permit jurors to take notes during all parts of a trial. 1

As a result of these discussions, the Committee concl uded that note taking should be permitted during both openings and closings in addition to during the presentation of evidence. Note taking

, however

, will still be precluded during the judge’s charge.

The Committee published this proposal for comment. S ee 50 Pa.B. 3576 (July 18, 2020). One comment was received objecting to note taking during openings and

1 Note taking by jurors in federal court is permitted at the discretion of each judge.

The directive appears to be set forth in pattern jury instructions and not pursuant to rule.3

closings. No post

- publications responsive revisions were made to the proposal for the

reasons contained herein. This amendment becomes effective April 1 , 2022.