Taking jury notes is the norm in most courtrooms, but it’s up to the judge

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21 Jan. – A notepad and pen are available in most courtrooms in the region waiting for sitting jurors to help collect evidence presented at trial. But taking notes isn’t a guarantee, and in Ohio it’s up to the courts.

In fact, jury trial practices differ from judge to judge, some a little and others a lot, which is noticeable when one spends a lot of time in court hearings and jury trials.

In a courtroom in Warren County Common Pleas, jurors are not only given notebooks, but also allowed to ask questions of witnesses – a rarity in the state.

Juror note-taking is the norm locally, and it has been in the memory of lawyers who have been practicing for 20 years or more.

Most recently, Butler County Visiting Common Pleas Judge Daniel Hogan disallowed note-taking after a jury sat down for the trial of former auditor Roger Reynolds. Hogan started with the standard guidelines for the jury’s preliminary procedure and did not go into taking notes.

Hogan told a juror who asked if they could take notes that he was on the side of not taking notes and looked to the prosecution and defense to argue otherwise. They did not.

Hogan declined to comment on his note-taking practice until after Reynolds’ sentencing in February.

Judge Jennifer McElfresh, a general plea judge in Butler County for nine years and a long-time assistant district attorney for the county, said she can’t recall a single trial in which the taking of notes for a jury was not allowed.

“I haven’t practiced in courts where they couldn’t take notes and I allow them to take notes. But it’s really up to the discretion of the court, the Supreme Court has ruled in several cases,” she said.

McElfresh and other judges typically deal with the practice directly from the law based on Ohio jury instruction guidelines.

“It does say that jurors were not allowed to take notes for some time. Initially there was some concern that it would divert jurors’ attention from what was actually happening in the courtroom,” McElfresh said.

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There’s also another theory that some say isn’t helpful because a juror’s notes would be more important than a juror’s memory, she said.

Others believe that notes help with recall, especially in a complicated case. She is one of them.

“It’s important that you (jurors) remember that it’s meant to recall that particular juror and that it should be used as a mnemonic and not a verbatim account of the testimony,” McElfresh said.

Jury notebooks are under the supervision of the court during the trial. They are not something that a juror can put in his purse or pocket to judge at home or during the lunch hour. They have an identification marker specific to each juror, and they collected and redistributed before and after court.

Notebooks are allowed in the room during deliberations, then collected and shredded when the trial is over, which is part of standard jury instruction.

“I’m a note-taker myself,” McElfresh said. “For me it depends on how you learn. Some people are better at just listening and seeing. I like to accommodate both types of learning so the judges can make the best decision.”

Butler County Common Pleas Judges Keith Spaeth, Greg Howard, and Dan Haughey all allow note-taking during jury trials. All say they are also minute-takers and believe that the jurors should be given the same chance as proof-testers.

Spaeth said court practices are often common in the county where the judge was elected and his law career began.

“But we do warn people, you can get so caught up in taking minute notes that you don’t observe their body language and attitude and really try to get a handle on it. Are there (signs) that this person isn’t telling the truth? Spaeth said.

Taking notes is also not required, and judges say some choose not to write anything in the spiral notebooks.

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Some take little or none at all. Then others ask the bailiff for a second notebook,” Spaeth said.

Warren County Common Pleas Judge Donald Oda II changed his policy regarding jurors taking notes in recent years after serving on a three-judge panel in a murder trial.

“Judge Peeler, Judge Kirby and I listened to the testimony, deliberated and reached a verdict. All three of us were taking notes all the time, as most judges do, and I found these notes to be helpful to us during our deliberations made our discussions on the matter much more productive,” said Oda.

“Allowing jurors to take notes improves the deliberation process, and with better deliberation you hopefully get better verdicts,” Oda said.

Jurors sometimes ask questions

Warren County Common Pleas Judge Time Tepe is one of the few in the region that also allows jurors to question witnesses within the bounds of the law. Oda said this is not a practice he plans to adopt.

“While I’ve seen from Judge Tepe that it gets good questions from the jurors, I’m more concerned about the impact than not asking a question a juror is submitting — questions about past convictions or hearsay testimony, for example. If I ask some questions from the jurors, but not all of them… I’m afraid this may play a role in the jurors’ assessment of the case. I also don’t ask questions in a jury trial. I let the lawyers handle all questions ,’ Oda said.

In Tepe’s courtroom, after a witness testifies, the bailiff hands out cards to jurors who can then write a question for that witness. Questions are not required and the cards are signed. After the questions are collected, both parties consult with the judge. Tepe then reads out the jury questions that he felt were appropriate.

For now, Tepe is the only area judge to give the jury a more established role in the trial with questioning. A 2020 survey by the Ohio Jury Management Association found that only 26 of the 95 judges who responded allowed jurors to ask questions of witnesses.

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Tepe, who was elected to the bench in 2017 after practicing law for 31 years, began considering the practice a few years after becoming a judge. After hearing the idea from a northern Ohio judge, Tepe adopted the policy in the fall of 2019.

He plans to continue the practice and his philosophy is to give the jury the tools it needs to make a decision.

Tepe said that as a practicing attorney, he encountered judges who wouldn’t allow note-taking.

“I just don’t like limiting jurors,” Tepe said. “My philosophy is that we should make it easier for the jury in any way we can. Let’s give them the information they need to make a fair decision.”

He added that allowing jurors to ask questions is part of that philosophy.

“I know lawyers don’t like it sometimes,” Tepe said. “And people get confused because lawyers always get a change before the question is read to object. As with any question put to a witness, the judge is the one who decides which questions are appropriate.”

It’s a matter of finding out the truth, Tepe said.

“The lawyers might try to avoid certain questions. I’ve noticed jurors ask really good questions,” Tepe said. “My goal is to get a fair trial for both sides. You want a jury to make a fair decision, and my goal is to help them reach that conclusion. They are the tests of fact, so why bother don’t give them as much information and the tools they need to do it?”

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CRIME & SECURITY REPORTS

Lauren Pack has been a court and crime reporter in Butler County and the region for nearly 30 years, covering hundreds of criminal cases and trials in Butler, Warren, and Preble counties. Sign up for more from her via our weekly Crime & Safety Report email newsletter. magazine-news.com

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