SUMMARY OPINION
PER CURIAM:
Larry Darnell Cohee was tried by jury and convicted of Unlawful Delivery of a Controlled Substance in violation of 63 O.S.Supp. 1994, § 2 — 401(B)(1), in the District Court of Carter County, Case No. CF-95-156. In accordance with the jury’s recommendation the Honorable Lee Card sentenced Cohee to [212]*212ten years imprisonment and fined him $20,-000. Cohee appeals from this Judgment and Sentence.
After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we have determined that neither reversal nor modification is required under the law and evidence. However, in Proposition I Cohee contends that it was reversible error to permit a juror to take his notes into the jury room. We address Proposition I to clarify the law in this area. In addition, this case raises the more general question of the appropriate role and function of the jury in criminal cases. Across the country, courts are expanding trial techniques and procedures to encourage the development of informed, capable juries.1 This Court has considered this issue and believes that juries are a valuable resource which can be used more effectively. To that end, we hereby adopt the guidelines attached to this Opinion, and encourage district courts to follow these guidelines when conducting jury trials in criminal cases.
The separate opinions suggest the guidelines are an inappropriate attempt at legislation. We disagree. As our colleagues admit, the guidelines restate settled law or “basic, common sense principles of courtesy and management” and are nothing new. We do not seek to exceed our jurisdiction by creating laws or imposing new duties on trial courts. Rather, we recognize that, although these procedures are within a trial court’s discretion, our current piecemeal system may leave courts confused when deciding which procedures to use in any given trial. This case is an excellent example; the practice of juror note-taking is the subject of several published and unpublished eases and trial courts, as here, habitually and needlessly create trial practice based on dicta. Recently, a trial court sought to impanel dual juries in a co-defendant case; this practice is within the trial court’s discretion, but time and money were wasted in appealing that decision to this Court.2 These examples illustrate a systemic, recurring problem — trial courts simply do not know whether this Court sanctions these trial procedures, and are understandably reluctant to risk reversal by embracing them. In adopting today’s guidelines, we attempt to address this widespread problem of trial practice. The restatement of possible trial practices is not an attempt at legislation and addresses the issue before the Court.
In Proposition I Cohee claims the trial court erred in allowing a juror to bring his notes from the trial into the jury room during deliberations. We initially note that Cohee agreed on the record to allow jurors to take their notes into the jury room. He has thus waived consideration of all but plain error. In Glazier v. State3 this Court approved the general practice of jurors taking notes during trial. Cohee relies on Glazier for his claim that it was plain error for jurors to bring their trial notes with them while deliberating. This reliance is misplaced. Although Glazier comments that jurors should not be allowed to take notes into the jury-room while deliberating,4 that comment was dicta. As that opinion made clear, jurors did not take their notes into the jury room, and that issue was not before the Glazier court. After reconsidering the issue, we repudiate our dicta in Glazier. Use of notes may aid the jury during their deliberations. We find that jurors may benefit from notes in several ways: (1) jurors may follow the proceedings more closely and pay more attention as they take notes for later use; (2) jurors’ memories may be more easily and reliably refreshed during deliberations; (3) jurors may make fewer requests to have portions of trial transcript read back during deliberations; and (4) the ability to use their notes may result in increased juror morale and satisfaction.
[213]*213Glazier relied on 22 O.S.1991, § 893, which enumerates material which may be allowed in the jury room during deliberations, including written instructions, the verdict forms, and documentary evidence. That statute says nothing about jury notes. Co-hee claims the statute explicitly restricts the materials available to the jury during deliberations. On the contrary, the statute mentions neither physical evidence nor audio nor video recordings, although both are commonly sent back with the jury to aid in their deliberations. The Legislature clearly intended the statute to include material that must be given to the jury, not to limit the materials which the jury may find helpful. We have determined that jurors’ notes may aid them in their deliberations. In keeping with our guidelines calling for more effective, informed, and involved juries in criminal cases, we hold that jurors may take their notes into the jury room during deliberations. Cohee’s Proposition I is denied.
Decision
The Judgment and Sentence of the trial court is AFFIRMED.
CHAPEL, P.J., STRUBHAR, V.P.J., and JOHNSON, J., concur.
LANE, J., concurs in result.
LUMPKIN, J., concurs in part and dissents in part.
ATTACHMENT I: GUIDELINES
GUIDELINES GOVERNING JURIES IN CRIMINAL TRIALS
A.The following Guidelines are set forth for use at the discretion of the trial court, in order to allow for more effective use of juries and strengthen the institution of the jury trial in criminal proceedings.
Guideline 1. Time Management.
A. After the trial court ascertains from counsel how long each case is expected to take the court may, at its discretion, set reasonable time limits on the presentation of evidence or the length of the trial. The trial court may inform the jury how long the trial is expected to last, and should continue to inform the jury of any schedule changes as the trial progresses.
B. The trial court may, at its discretion, ensure that as far as possible the jury is not kept waiting while court and counsel hold hearings on motions, go over instructions, or attend to other out-of-court business. The trial court may arrange its docket to minimize interruptions during criminal trials.
C. In cases with numerous trial exhibits, especially documents, the trial court may, at its discretion, manage and control the documents used at trial. The trial court may (1) assign only one number to each exhibit; (2) provide copies of documents to jurors after their introduction into evidence, and (3) provide an index of admitted exhibits for the jury’s use.
D. The trial court may, at its discretion, determine a schedule for jury deliberations and inform the jury of this schedule before deliberations begin.
Comment: The trial court may determine whether the jury will deliberate during the evenings or on weekends, outside normal court hours. The court may ask jurors which schedule they would prefer.
Guideline 2. Impaneling Dual Juries.
Free access — add to your briefcase to read the full text and ask questions with AI
SUMMARY OPINION
PER CURIAM:
Larry Darnell Cohee was tried by jury and convicted of Unlawful Delivery of a Controlled Substance in violation of 63 O.S.Supp. 1994, § 2 — 401(B)(1), in the District Court of Carter County, Case No. CF-95-156. In accordance with the jury’s recommendation the Honorable Lee Card sentenced Cohee to [212]*212ten years imprisonment and fined him $20,-000. Cohee appeals from this Judgment and Sentence.
After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we have determined that neither reversal nor modification is required under the law and evidence. However, in Proposition I Cohee contends that it was reversible error to permit a juror to take his notes into the jury room. We address Proposition I to clarify the law in this area. In addition, this case raises the more general question of the appropriate role and function of the jury in criminal cases. Across the country, courts are expanding trial techniques and procedures to encourage the development of informed, capable juries.1 This Court has considered this issue and believes that juries are a valuable resource which can be used more effectively. To that end, we hereby adopt the guidelines attached to this Opinion, and encourage district courts to follow these guidelines when conducting jury trials in criminal cases.
The separate opinions suggest the guidelines are an inappropriate attempt at legislation. We disagree. As our colleagues admit, the guidelines restate settled law or “basic, common sense principles of courtesy and management” and are nothing new. We do not seek to exceed our jurisdiction by creating laws or imposing new duties on trial courts. Rather, we recognize that, although these procedures are within a trial court’s discretion, our current piecemeal system may leave courts confused when deciding which procedures to use in any given trial. This case is an excellent example; the practice of juror note-taking is the subject of several published and unpublished eases and trial courts, as here, habitually and needlessly create trial practice based on dicta. Recently, a trial court sought to impanel dual juries in a co-defendant case; this practice is within the trial court’s discretion, but time and money were wasted in appealing that decision to this Court.2 These examples illustrate a systemic, recurring problem — trial courts simply do not know whether this Court sanctions these trial procedures, and are understandably reluctant to risk reversal by embracing them. In adopting today’s guidelines, we attempt to address this widespread problem of trial practice. The restatement of possible trial practices is not an attempt at legislation and addresses the issue before the Court.
In Proposition I Cohee claims the trial court erred in allowing a juror to bring his notes from the trial into the jury room during deliberations. We initially note that Cohee agreed on the record to allow jurors to take their notes into the jury room. He has thus waived consideration of all but plain error. In Glazier v. State3 this Court approved the general practice of jurors taking notes during trial. Cohee relies on Glazier for his claim that it was plain error for jurors to bring their trial notes with them while deliberating. This reliance is misplaced. Although Glazier comments that jurors should not be allowed to take notes into the jury-room while deliberating,4 that comment was dicta. As that opinion made clear, jurors did not take their notes into the jury room, and that issue was not before the Glazier court. After reconsidering the issue, we repudiate our dicta in Glazier. Use of notes may aid the jury during their deliberations. We find that jurors may benefit from notes in several ways: (1) jurors may follow the proceedings more closely and pay more attention as they take notes for later use; (2) jurors’ memories may be more easily and reliably refreshed during deliberations; (3) jurors may make fewer requests to have portions of trial transcript read back during deliberations; and (4) the ability to use their notes may result in increased juror morale and satisfaction.
[213]*213Glazier relied on 22 O.S.1991, § 893, which enumerates material which may be allowed in the jury room during deliberations, including written instructions, the verdict forms, and documentary evidence. That statute says nothing about jury notes. Co-hee claims the statute explicitly restricts the materials available to the jury during deliberations. On the contrary, the statute mentions neither physical evidence nor audio nor video recordings, although both are commonly sent back with the jury to aid in their deliberations. The Legislature clearly intended the statute to include material that must be given to the jury, not to limit the materials which the jury may find helpful. We have determined that jurors’ notes may aid them in their deliberations. In keeping with our guidelines calling for more effective, informed, and involved juries in criminal cases, we hold that jurors may take their notes into the jury room during deliberations. Cohee’s Proposition I is denied.
Decision
The Judgment and Sentence of the trial court is AFFIRMED.
CHAPEL, P.J., STRUBHAR, V.P.J., and JOHNSON, J., concur.
LANE, J., concurs in result.
LUMPKIN, J., concurs in part and dissents in part.
ATTACHMENT I: GUIDELINES
GUIDELINES GOVERNING JURIES IN CRIMINAL TRIALS
A.The following Guidelines are set forth for use at the discretion of the trial court, in order to allow for more effective use of juries and strengthen the institution of the jury trial in criminal proceedings.
Guideline 1. Time Management.
A. After the trial court ascertains from counsel how long each case is expected to take the court may, at its discretion, set reasonable time limits on the presentation of evidence or the length of the trial. The trial court may inform the jury how long the trial is expected to last, and should continue to inform the jury of any schedule changes as the trial progresses.
B. The trial court may, at its discretion, ensure that as far as possible the jury is not kept waiting while court and counsel hold hearings on motions, go over instructions, or attend to other out-of-court business. The trial court may arrange its docket to minimize interruptions during criminal trials.
C. In cases with numerous trial exhibits, especially documents, the trial court may, at its discretion, manage and control the documents used at trial. The trial court may (1) assign only one number to each exhibit; (2) provide copies of documents to jurors after their introduction into evidence, and (3) provide an index of admitted exhibits for the jury’s use.
D. The trial court may, at its discretion, determine a schedule for jury deliberations and inform the jury of this schedule before deliberations begin.
Comment: The trial court may determine whether the jury will deliberate during the evenings or on weekends, outside normal court hours. The court may ask jurors which schedule they would prefer.
Guideline 2. Impaneling Dual Juries.
In a case where co-defendants are charged, the trial court may, at its discretion, order two juries impaneled, one for each co-defendant. Both juries will be seated in the jury box and the evidence pertaining to both defendants will be presented to both juries simultaneously. Evidence admissible as to one co-defendant shall be presented to that defendant’s jury only.
Comment: This procedure is intended to balance, in appropriate cases, defendants’ rights to separate trials and speedy trials, and concerns of fairness and judicial economy.
Guideline 3. Jury Questionnaires; Confidentiality.
The trial court may, upon request of the parties and at its discretion, allow a written juror questionnaire to be sent to members of [214]*214the jury pool before voir dire commences, and may allow the results of that questionnaire to be used in voir dire. The trial court must examine and approve the questions contained in the questionnaire. The court shall keep all jurors’ home and business telephone numbers confidential unless good cause is shown to the court which would require such disclosure.
Guideline 4. Juror Preparation.
A. Immediately after the jury is sworn, the trial court may, at its discretion, instruct the jury concerning its duties and conduct, the order of the proceedings, the procedure by which jurors may submit written questions of witnesses or the court as set forth in subsection (C) of this Guideline, and the elementary legal principles that will govern the proceedings.
Comment: Section 831 of Title 22 O.S.1991 provides the order for criminal trial proceedings, beginning with the reading of the Information. The Court of Criminal Appeals has previously determined that § 831 does not provide exclusive directions for the order of trial, and has promulgated introductory jury instructions to be given after the jury is sworn. Instructions 1-7, 1-8, Oklahoma Uniform Jury Instructions, Criminal (2nd). In addition to these instructions, jurors may be informed of the elements of the offense and affirmative defenses, if any, of which a defendant has given notice. In technical or complicated cases, these instructions may include a glossary of terms or other information which would assist jurors in understanding the evidence. This information may help prepare jurors to understand the issues, determine the facts and weigh evidence as the trial progresses.
B. The court may, at its discretion, instruct the jurors that they may take notes regarding the evidence presented. The court shall provide materials for this purpose. In its discretion, the court may allow documents and exhibits to be included in notebooks after their admission into evidence for juror use during the trial, if the documents and exhibits would aid jurors in performing their duties. Jurors shall have access to then-notes and notebooks during recesses, discussions and deliberations. After the jury has returned a verdict, the notes shall be collected and destroyed by the bailiff or clerk and such notes shall not be used or referenced in any subsequent proceedings on appeal.
Comment: Jurors may take notes during the proceedings, and trial courts are encouraged to provide notebooks to facilitate juror notetaking. Jurors may take then-notes to the jury room to aid in then-deliberations. Cohee v. State, No. F-96-329 (Okl.Cr.1997).
Comprehensive juror notebooks may significantly assist jurors in understanding and remembering evidence in complex or lengthy cases. Decisions involving the contents of juror notebooks are within the trial court’s discretion. A juror notebook provided by the court should include space for individual notes but may include, as appropriate: (1) a copy of the preliminary jury instructions; (2) witnesses’ names, photographs, or biographies, where appropriate; (3) copies of documents after then-admission into evidence and an index of exhibits; (4) a glossary of technical terms; (5) a copy of the court’s final instructions; and (6) space in which jurors may take notes. Any preliminary instructions should be removed and replaced by the final instructions before the jury receives final instructions.
C.The trial court may, at its discretion, instruct jurors that they may submit to the court written questions directed to witnesses or the court. Jurors should be informed (1) any questions directed to witnesses must be in writing and unsigned; (2) counsel will have the opportunity to review and object to such questions outside the presence of the jury; (3) questions will be asked by the court or counsel at the trial court’s discretion; (4) jurors should not discuss questions among themselves, but each juror should determine independently if he or she has quéstions of a witness; and (5) trial Guidelines do not permit some questions to be asked, and jurors should not attach any significance to a ques[215]*215tion’s rejection. The trial court may prohibit or limit submission of juror questions.
Comment: Allowing jurors to ask questions encourages active juror participation in the fact-finding process and improves juror comprehension. A juror with a question should give it to the bailiff at recess or signal the bailiff before the witness leaves the witness stand. The bailiff will present the written question to the court. Where appropriate, jury questions may be answered by stipulation or testimony. If the court determines the question calls for inadmissible evidence, the question should be neither read nor answered. This procedure may (1) clarify information and avoid confusion; (2) reveal juror confusion or misconduct; and (3) help jurors remain more alert and focused on the proceedings.
D. The trial court may instruct the jury that it may submit questions to the court during deliberations, and that the court will attempt to answer those questions as fully as the law permits.
Comment: The jury may submit questions during deliberations. The trial court should inform counsel, propose a response, and offer counsel the opportunity to object or suggest a response. The court may either call the jury to the jury box or return a written answer as appropriate. As far as possible consistent with the law, the court’s response should attempt to answer the jury’s questions using clear and plain language.
E. The trial court may emphasize the importance of using clear and understandable language when addressing the jury.
Guideline 5. Assisting Jurors at Impasse.
If the jury advises the trial court that it has reached an impasse in its deliberations, the court may, in the presence of counsel, inquire of the jurors to determine whether the court and counsel can assist the jurors in their deliberations. The trial court may direct that further proceedings occur as appropriate based on the jurors’ response.
Comment: After a jury reports it has reached an impasse, the trial court may give the Allen instruction, which encourages the jurors to continue deliberations and reach a verdict. Allen v. United States, 164 U.S. 492,17 S.Ct. 154, 41 L.Ed. 528 (1896); OUJI-CR 10-11 (2nd). In particular cases, before giving an Allen instruction the trial court may, at its discretion, inquire what issues divide the jury, and offer some assistance if it is legally and practically possible and if jurors, through the foreman, indicate such assistance would help them reach a verdict. The trial court’s offer of assistance should not be coercive or suggestive. In order to avoid any chilling effect on deliberations, any individual juror concerns should remain anonymous, and the foreman should present all issues dividing the jury to the trial court. Avenues of assistance which trial court and counsel might pursue include: giving additional instructions or clarifying earlier instructions; directing additional closing argument; and reopening the evidence for limited purposes. This provision is not intended to allow the court or counsel to assist in deliberations, but merely to provide further instruction, argument, or evidence as it may aid the jury, who will then retire to continue deliberation. Under no circumstances should counsel or the court engage in a dialogue with jurors or suggest a resolution to the issue except as permitted within the range of argument. Aiding juries which request help may improve the chances of a verdict and avoid needless mistrials.5 This procedure should supplement, not replace, the Allen instruction.
Guideline 6. Post-Deliberation Procedures.
A. The trial court may thank the jurors for their service. At its discretion, the trial court may regularly survey jurors regarding their responses to jury duty in general and their experiences during this particular trial.
B. In cases exposing jurors to extreme violence, perversion, or other evidence likely to induce substantial juror stress, the trial [216]*216court may, at its discretion, meet with the jury immediately after the close of trial. Jurors should have the opportunity to discuss their shared experience as well as individual feelings and reactions. The trial court may advise jurors of the signs and symptoms of stress, and inform jurors about community mental health, counseling and other resources.
C. In cases where jurors express apparently reasonable concerns about the dangers of retaliation for jury service during or after trial, the trial court may, at its discretion, meet with the jury and refer jurors to law enforcement authorities as appropriate.
Comment: Criminal trials may involve disturbing evidence or be accompanied by threats or remarks from persons connected with parties in the ease. Trial courts should be sensitive to these issues, and attempt to address juror concerns or feelings of stress and anxiety by referring jurors to community organizations or law enforcement agencies as appropriate. Trial courts should not take the place of counselors. Trial courts should address these concerns after the jury has completed deliberations and returned its verdict.
D. At its discretion, the trial court may instruct jurors that, after discharge, they are free to discuss the ease, but that if jurors do not wish to speak about the case to the court, counsel, the media or the public they need not do so. The trial court may offer to meet with jurors, thank them personally, and answer general questions as far as the law and judicial ethics permit.