Reckless, Episode 1: Juror Note Taking in South Carolina

In last night's episode of "Reckless," defense attorney Jamie Sawyer sweet talks a court officer into allowing her to enter the courtroom of her murder trial before anyone else. While there, Sawyer replaces the jurors' pencils with pens that are presumably on their last leg. Later, when assistant district attorney Roy Rayder is interrogating a witness, the pens stop working. It's the kind of thing that you only see on TV, but what you do see in South Carolina courtrooms, at least in some cases, is juror note taking.

One of the questions I answered for the crew of "Reckless" was whether jurors are allowed to take notes in criminal trials in South Carolina. It used to be that the majority of jurisdictions precluded jurors from taking notes during trial. Gradually, however, the trend has shifted, and now the majority of jurisdictions allow such note taking. See Gregory E. Mize et al., The State-of-the-States Survey of Jury Improvement Efforts 31-43 (2007).

In South Carolina, the issue was resolved in State v. Trent, 106 S.E.2d 527 (S.C. 1959). In Trent, a murder trial, after the defendant was convicted, he appealed, claiming, inter alia, that the trial judge erred by allowing jurors to take notes during trial. In resolving the issue, the Supreme Court of South Carolina held that

In a number of States there are statutes permitting the taking of notes by jurors but the overwhelming weight of authority is to the effect that apart from statute the matter of note taking by jurors rests largely in the discretion of the trial Court....We are impressed with the soundness of this view. As are many other matters arising during a trial, much must be left to the common sense and good judgment of the trial Judge who in the exercise of his discretion will, of course, take into consideration the nature of the case and the extent to which notes are taken.

In subsequent cases, South Carolina courts have cited Trent for the proposition that it is within the trial judge's discretion to allow or disallow juror note taking. See, e.g., State v. South, 331 S.E.2d 775 (S.C. 1985) (using Trent to affirm a trial judge's decision to allow jury note taking at a murder trial).

Now, that's not to say that jurors are allowed to take notes at a majority of trials in South Carolina. Indeed, in the State-of-the-States Survey I cited above, it was found that South Carolina jurors are allowed to take notes in only 42% of civil trials and 27% of criminal trials. That said, I would guess that these percentages have risen in recent years and that juror note taking is disproportionately allowed in murder trials. One of the factors that judges take into account in deciding whether to allow juror note taking is the complexity of the trial, and murder trials, like the trials in Trent and South, tend to be more complex than other trials. Therefore, it seems logical that the jurors would have been allowed to take notes in the murder trial in the first episode of "Reckless"

-CM