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Members of the Philadelphia bench and bar have expressed mixed reactions to the news that soon — and for at least the next three years — jurors in major criminal trials will be able to take notes on the proceedings. Some feel that the changes to Rule of Criminal Procedure 644 announced last week by the Pennsylvania Supreme Court didn’t come as any surprise, given the facts that Pennsylvania’s is the only U.S. jurisdiction that does not allow juror note-taking in criminal trials and that civil juries in the state have been able to do so since 2003. Others worry that opening the door to criminal jury note-taking will create a host of logistical and legal problems. And there are those who argue against juror note-taking in criminal trials, stressing the need for juries to devote themselves fully to judging witnesses’ demeanors. Lynne Abraham, district attorney of Philadelphia, said that her years as a judge give her a different view on the subject than some criminal practitioners might hold. “Generally, I favor it,” she said, but added later, “I know that logistic and legal problems are going to be created.” Philadelphia Common Pleas Judge D. Webster Keogh, who supervises the city’s criminal trial division, said he thinks there are valid arguments both for and against the rule change, but believes that criminal judges will be able to conform the note-taking practice to their area of law when the new rule takes effect in August, just as civil judges did two years ago. But veteran Philadelphia criminal defense attorney Daniel-Paul Alva and Montgomery County District Attorney Bruce L. Castor Jr. both asked why a system that wasn’t broken needed to be fixed. “I’m against it, to be perfectly honest,” Alva said of criminal juries’ taking notes during trials. “It’s tough enough to keep a jury’s attention in today’s world.” “The bottom line,” Castor said, “is that I want jurors paying attention to what’s going on in the courtroom — not looking down at their laps.” The Supreme Court adopted the new Rule 644 in an order issued June 30. Justice Russell M. Nigro dissented, as he did when the court adopted Rule of Civil Procedure 223.2, which gave civil juries the freedom to take notes. Nigro did not write to explain his objections, nor did he return a call for comment. Rule 644 mirrors Rule 223.2 on several fronts, including a three-year sunset provision requiring the court to re-evaluate the wisdom of criminal juror note-taking in 2008. (The three-year clock on the civil rule is up next year.) The rule also states that a trial must last more than two days before courts are required to permit note-taking, although judges may decide to allow note-taking in shorter trials. While the rule gives jurors the freedom to take notes, it does not require note-taking. It specifically states that neither the court nor the attorneys may “request or suggest that jurors take notes, comment on the jurors’ note-taking, or attempt to read any notes.” The rule also forbids note-taking during the judge’s final charge. All notebooks must be kept in the court’s custody; they are not to leave the courtroom except to go into the deliberation room with the juror. The notebooks are to be collected at the close of the trial and destroyed. Keogh said that in allowing jurors to take notes during trials, criminal judges need to pay attention to instructions contained in the rule that they tell jurors not to let their note-taking overshadow their observations of the trial unfolding. Keogh suggested that after proceedings are resumed following any break, criminal judges remind jurors not to let the note-taking get in the way of determining the reliability of witnesses’ testimony. He said he has not heard from any civil judges he knows of negative impacts following the implementation of Rule 223.2. Abraham said the new rule could mean more work for criminal judges and court officers, especially when it comes to high-profile trials. She is particularly concerned about the security of the notes during breaks and immediately following the trial — if they are not closely watched, she said, a member of the public or the media might try to gain access to them. And once the notes are created, she said, some might argue that they are public record. “I know a reporter’s going to try to say, ‘We should be able to see those notes,’” Abraham said. She added that her office plans to discuss such potential problems with the committee, but acknowledged the possibility that implementation of the rule as currently written could lead to a wide range of appeals in years to come. Alva, who is vice chair of the Philadelphia Bar Association’s Board of Governors, said that while he’s spoken to fellow criminal defense attorneys who are both for and against the new rule, the majority he’s been in contact with join him in his skepticism. The first thing criminal trial attorneys are taught to do is look at the jury, Alva noted. But when he tries cases in federal courts, he notices that there are always one or two jurors who can’t take their eyes off their notes. As for trying a case in common pleas court, he said, “with the major metropolitan jury pool that we’re pulling from, attention is everything.” Castor said he can already foresee the “likelihood … that jurors won’t be paying attention to the nuances in the courtroom because they’re too anxious to write things down.” And both Alva and Castor worried about the power fastidious note-takers might have in the deliberations room over jurors who did not take such copious notes. Christopher Lilienthal contributed to this report.

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