Why Courtrooms Are Terrible Classrooms
Think of the best class you ever took – the most interesting, engaging, effective learning experience of your life. Now think about the worst – the most boring, ineffective attempt at education that you’ve ever received. What do the two of them have in common?
Both probably paid more attention to effective teaching than the average trial.
Evaluated by any objective standard, trials do a poor job at educating juries about the facts and issues in dispute. The rules that govern how jurors receive information during trial are largely the product of tradition, not design. To the extent that judges grapple with the consequences of changing those practices, they often make arguments or display attitudes that would be considered bizarre in any other context. And the result is often a process that disserves litigants and leaves jurors feeling confused and skeptical about the whole endeavor.
Don’t believe me? Let’s consider some basic pedagogical issues and their cumulative impact at trial.
I. Repetition
What’s the easiest way to remember something? Hear it more than once. When teachers want students to learn key facts or skills, they repeat them many times across many lectures. This is not just about helping students who are absent or not paying attention. Repetition strengthens recall and understanding for everyone. Can you still quote portions of the Gettysburg address or recite the Pythagorean Theorem from grade school? How many times did you need to hear them for that to happen?
But at trial, repetition is a dirty word. Under Fed. R. Evid. 403, a federal court has broad discretion to exclude relevant evidence as “cumulative,” that is to say, evidence that duplicates other evidence already admitted. [1] Similar rules exist in state jurisdictions. And these are not dead letter rules. Many judges are quick to cut off witness examinations as “repetitive” the instant that a key event is recounted more than once. Indeed, in some courtrooms, it’s exceedingly common to hear a judge remark “move on to something else” or “we’ve been over this” at every available opportunity.
On some level, this is understandable. A highly prepared judge may go into a case already familiar with the facts in dispute and the testimony that is likely to be elicited at trial. In that position, hearing the expected testimony even twice may be extremely boring. But juries start trials very cold, without even knowing the names of the parties or witnesses. Under these circumstances it is simply unfair to expect them to absorb information that they only hear a single time.
II. Notetaking
If the rules prevent jurors from hearing key evidence over and over again, they’re probably encouraged to take good notes, right? Well, not exactly.
As students, we are encouraged, sometimes even required to take notes. It is broadly recognized that notetaking is more than simply an aid to memory – it is also a tool by which people achieve understanding. Listening to speech and writing down a word or phrase that allows you to recall its most important points requires you to understand and internalize that speech in a way that simply nodding along does not.
Because of this, notetaking is not generally controversial. And yet courts in the United States view juror notetaking with deep skepticism. While most courts grudgingly permit the practice today, some do not. And the model instructions in many jurisdictions actively discourage the practice, cautioning jurors about the “dangers” of taking notes and encouraging them to rely upon their recollection instead. For example, the Court of Appeals for the Fifth Circuit offers two options for trial judges to choose from:
Option 1:
Remember at all times, you are the judges of the facts. You have not been allowed to take notes during this trial. You must rely on your memory.
Option 2:
Remember at all times, you are the judges of the facts. You have been allowed to take notes during this trial. Any notes that you took during this trial are only aids to memory. If your memory differs from your notes, you should rely on your memory and not on the notes. The notes are not evidence. If you did not take notes, rely on your independent recollection of the evidence and do not be unduly influenced by the notes of other jurors. Notes are not entitled to greater weight than the recollection or impression of each juror about the testimony.
So, this is pretty strange stuff. When have you ever heard anyone say: “Be sure to rely on your memory, not your notes?” In literally every other aspect of your life, if there is a dispute between your recollection and your notes, you rely on your notes. That’s literally why you took them.
What is the theory behind all of this? To the extent that there is any, you can get a sense of it in old decisions like United States v. Davis, [2] where, after noting that a trial judge had rebuked several jurors after they “persistently and diligently took notes of all of the testimony” at trial, an appellate court reviewing the case remarked:
[T]he practice is an improper one. It gives the juror taking notes an undue influence in discussing the case when he appeals to his notes to settle conflicts of memory. Without corrupt purpose, his notes may be inaccurate, or meager or careless, and loosely deficient, partial, and altogether incomplete. With a corrupt purpose, they may be false in fact, entered for the purpose of misleading or deceiving his fellows when he comes to appeal to them. There is no protection against such dangers except to forbid the practice.
This too, is pretty wacky. And while that decision is a century old, the Fifth Circuit instructions demonstrate how courts to this day still boldly assert that jurors who took detailed notes are not a more reliable source about what happened at trial than jurors who wrote nothing down.
But let’s get real: they obviously are. A juror who took notes on testimony was at least trying to pay attention. A juror who wrote nothing down may very well have been daydreaming or outright asleep. And apart from notes, do you know what is also “inaccurate, careless, or meager?” The memory of someone who didn’t take any notes!
III. Transcripts
So, courts don’t want jurors to hear the same thing more than once and actively encourage them not to write things down. Can the jury at least ask to review important testimony again if their verdict absolutely depends on it? Well once again, it’s complicated.
We don’t generally have video replay at trial – that’s reserved for crucial matters like football games. But there are stenographers who write down everything that is said and prepare a transcript. And jurors can ask for the transcript. But they often will not be given it. Instead, the “preferred” practice is for the jury to be called back into the courtroom to hear small portions of the transcript read – just once – out loud. After that, they’re hustled back into to jury room to resume deliberations.
While some courts have permitted jurors to be given transcripts – in case, you know, they want to read something more than once – the practice is strangely controversial. Like notetaking, it comes with a whole set of warnings and unusual instructions. For example, in United States v. Lujan, [3] the Court of Appeals for the Ninth Circuit described the appropriate instructions to give a jury when furnishing a transcript:
The instruction cautioned the jury that the transcript would not serve as a substitute for their memory or assessment of witness credibility. The jury was admonished to weigh all the evidence and not to use the transcript to focus on any portion of the trial. Finally, the trial court instructed the jury the transcript was not authoritative and the juror's memory should prevail.
There is a real irony in an appellate court describing a transcript as “not authoritative,” with respect to what happened at trial. Appellate courts overrule trial judge decisions based on what they read in the transcript. But the Court of Appeals genuinely considered this a very serious issue. How can I be sure? Because three years later it actually reversed a conviction because a jury was given a transcript without any “warnings” about how to use it.
In United States v. Hernandez, [4] a defendant was convicted of illegally possessing a firearm. One of the key witnesses was a police officer named Sadar. The jury wanted to carefully scrutinize the officer’s testimony, but to hear the Court of Appeals tell it, the trial judge just could not be bothered:
After trial, during deliberation, the jury requested by note to hear Sadar's testimony again. The request was made on a Friday after only a short period of deliberation. The court urged the jurors to rely on their collective memories to determine the facts of the case. The jury relayed that its final decision was based on Sadar's testimony and asked the court to reconsider its request.
Again, the court urged the jurors to rely on their recollections, and if they could not, then to narrow the request. The jury responded that it specifically wanted to hear Sadar's testimony regarding his encounter with the suspect at the gate and his description of the suspect. The court informed the jury that it would comply with its request, but that it should continue to deliberate. Following the weekend, on Monday, the court provided the jury with the entire transcript of Sadar's testimony, including both direct and cross-examination. [5]
The Court of Appeals had no problem with the trial court’s original “come on – just go with what you remember” approach. Instead, the Court of Appeals held that the ultimate decision to provide the jury with the transcript was totally unacceptable and required a new trial. Why? Well:
[W]e expressed our concern that in the privacy of a jury room, a jury, unsupervised by the judge, might repeatedly replay crucial moments of testimony before reaching a guilty verdict. To avoid the possibility of this undue emphasis, the preferred method of rehearing testimony is in open court, under the supervision of the court, with the defendant and attorneys present.
* * *
[T]he district court in this case failed to take sufficient precautions to avoid undue emphasis. The jury clearly indicated by note that its final decision turned on Sadar's testimony, specifically his description of the suspect. Because of the jury's obvious intent to emphasize a specific portion of the transcript, the district court permitted undue emphasis when it failed to admonish the jury to weigh all the evidence and to instruct that the transcript was not authoritative.
Again, this is some pretty strange stuff. If testimony is “crucial” to the outcome of a case, the jury really ought to “replay” it, “emphasize it,” and otherwise study it to determine the proper result. That’s not “undue” anything; it is simply prioritizing which evidence matters and which evidence does not.
So, what’s the upshot of all of this? Juries are often expected to learn things despite hearing them only once. They are encouraged not to take notes and/or not to rely upon them. And to the extent that they ask to review key testimony, they often receive it only after overcoming resistance from the court and with strange instructions not to put “undue emphasis” upon it. This is not a good way to learn anything.
You will sometimes see trial lawyers spend enormous amounts of time and energy attempting to simplify or streamline trial presentation. This can come across as condescending, as though attorneys believe that jurors are fools who cannot understand complex facts or arguments. But that is not the case. Jurors are tasked with a difficult job under conditions that are uniquely bad for learning. Even the brightest and most studious people would struggle to achieve a just result. Short of reforming the rules and/or changing these conditions, trial lawyers are left with the next best thing – making their presentations as clear, persuasive, and memorable as they possibly can and repeating key facts as often as they are permitted. If courtrooms are terrible classrooms, you need to be the best teacher you possibly can.
[1] See, e.g., Leefe v. Air Logistics, Inc., 876 F.2d 409, 410 (5th Cir. 1989) (“It is within the power of the district court to exclude testimony that is repetitious and cumulative of testimony already before the court.”).
[2] 103 F. 457, 470 (C.C.W.D. Tenn. 1900).
[3] 936 F.2d 406, 412 (9th Cir. 1991)
[4] 27 F.3d 1403 (9th Cir. 1994).
[5] Id. at 1405.
