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People v. Whitt8/27/1984
ense causing or compelling the accused to speak when he would not otherwise do so. Here, however, the informant was not a government agent. There is no hint in the record of any other fact which rendered Whitt's statements involuntary. Thus, they were properly admitted into evidence.
IV.
(See fn. 17.) Whitt next contends that the guilt verdicts must be reversed due to the trial court's failure to give, sua sponte, a cautionary instruction on jury notetaking.
Although section 1137 implicitly approves the practice of juror note-taking, Whitt argues that the dangers inherent in this practice demand a cautionary instruction whenever the practice is allowed.
Several decisions from other jurisdictions have discussed this issue. In People v. DiLuca (1982) 85 App.Div.2d 439 [448 N.Y.S.2d 730], a New York court summarized the arguments against note-taking. There is a possibility that "more significance will be placed by the jurors on their notes, which may be inaccurate, incomplete or misleading, than on their own independent recollection. The notes may accentuate irrelevancies and ignore more substantial issues and evidence . . . . juror with the best notes will unduly influence and possibly mislead the other jurors." (Id., at p. 734.) Furthermore, note-taking may "distract the jurors' attention from the proceedings. Instead of listening to important testimony, the jurors may be jotting down notes on a different and less important point. While taking notes, the jurors may also not pay sufficient attention to the behavior of witnesses and may thus be unable to properly assess their credibility." (Ibid.) A federal court has voiced similar concerns. (United States v. Maclean (3d Cir. 1978) 578 F.2d 64, 66.)
Because of these risks, a number of courts have held that a cautionary instruction is required. For example, the DiLuca court held that the instruction should include "an explanation . . . that [jurors] should not permit their note-taking to distract them from the ongoing proceedings; that their notes are only an aid to their memory and should not take precedence over their independent recollection; that those jurors who do not take notes should rely on their independent recollection of the evidence and not be influenced by the fact that another juror has taken notes; and that the notes are for the note taker's own personal use in refreshing his recollection of the evidence. The jury must be reminded that should any discrepancy exist between their recollection of the evidence and their notes, they should request that the record of the proceedings be read back and that it is the transcript that must prevail over their notes." (People v. DiLuca, supra, 448 N.Y.S.2d at p. 735.)
The DiLuca court upheld the trial court's decision to permit note-taking, but found error in its failure to give this cautionary instruction. The error was found to require reversal because there was not "overwhelming evidence" in support of the verdict. (Id., at p. 735.)
California, in contrast to New York and other jurisdictions, has given implicit statutory approval to note-taking. (§ 1137; see generally Annot. (1967) 14 A.L.R.3d 831.) However, it cannot be said that by enacting this statute the Legislature has determined that note-taking is free from the risks described in Diluca, or that a cautionary instruction is not appropriate. For the reasons stated in DiLuca and Maclean, the better practice is to give such an instruction.
However, whether the trial court was required to so instruct in this case need not be decided since the trial court gave an instruction which included the cautionary warnings Whitt urges. The trial judge asked the ju
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