Free Response - District Court of Arizona - Arizona

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Daniel P. Struck, Bar #012377 Rachel Love Halvorson, Bar #019881 J ONES, S KELTON & H OCHULI, P.L.C. 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Telephone No.: (602) 263-1700 Facsimile No.: (602) 263-1784 E-Mail: [email protected]; [email protected] Attorneys for Defendants, Corrections Corporation of America and Stolc IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Cheryl Allred Plaintiff, v. Corrections Corporation of America, Inc.; Bruno Stolc Defendants. DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION IN OPPOSITION TO JUROR NOTE TAKING NO. CIV 03-2343 PHX-DGC

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Defendants, Corrections Corporation of America ("CCA") and Warden Bruno Stolc, through counsel, hereby respond to Plaintiff's Motion to prohibit the jurors from taking notes during trial. Plaintiff seeks to prohibit the jurors from taking notes during a ten- to twelve-day trial in which at least twenty-seven (27) witnesses will testify and at least sixty (60) exhibits will be offered into evidence. Plaintiff's reasons for not permitting the jurors to take notes at trial are that the jurors could be unskilled note takers, could be dishonest in their note taking, might be distracted and may be unable to focus on the "important" evidence. Plaintiff's mistrust of the jury as a basis for prohibiting juror note taking is inappropriate. Permitting the jury to take notes during trial is not a new or novel practice. It is well settled in the Ninth Circuit that trial judges have discretion to permit jurors to take notes during trial. See N INTH C IRCUIT M ANUAL OF M ODEL

Case 2:03-cv-02343-DGC

Document 165

Filed 01/17/2006

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J URY INSTRUCTIONS, C IVIL, Preliminary Instruction 1.11, Taking Notes; United States v. Baker, 10 F.3d 1374, 1402 (9 th Cir. 1993); J URY C OMMITTEE OF THE N INTH C IRCUIT , A M ANUAL ON J URY T RIAL P ROCEDURES, § 3.4 (1998); see also A RIZ.R.C IV.P. 39(d) (providing that jurors in Arizona Superior Courts have access to their juror notes and notebooks during recesses, discussions and deliberations). Juror note taking is valuable not only in refreshing a juror's memory as to the evidence presented throughout the trial, it may help jurors concentrate on the proceedings and to prevent their attention from wandering. See United States v. D.R. Maclean, 578 F.2d 64, 66 (3d Cir. 1978) (as cited by Plaintiff regarding concerns of note taking but permitting juror note taking when instructed that notes are only aids to memory, are not conclusive, should not be given precedence over independent recollections of fact and should not distract them from the ongoing proceedings). This will be a long trial. Granted, the basic issues of this case are not complex. The jury will decide: (1) whether Plaintiff was raped; (2) if so, whether Defendants were negligent; and (3) damages, if Plaintiff was raped and Defendants were negligent. Despite the simplicity of the basic issues in the case, the case turns on Plaintiff's credibility. A substantial amount of evidence will be presented on the issue of credibility. Much will pertain to very specific variations and conflicting evidence provided by Plaintiff herself as to the details of the alleged rape. This evidence will come to the jury in the form of witness testimony and voluminous medical, mental health and prison/jail institutional records. With respect to liability and damages issues, there will be testimony from numerous witnesses. The exhibits offered on the issues of liability and damages also will be numerous and lengthy. Because of the length of the trial, the number of witnesses to be presented and the voluminous document exhibits to be offered, the jury should be permitted to take notes during trial in order to aid the jurors in recalling witness 2

Case 2:03-cv-02343-DGC

Document 165

Filed 01/17/2006

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testimony and document exhibit content. Defendants have requested that the Ninth Circuit Model Preliminary Instruction 1.11 (Taking Notes) be given. This instruction specifically instructs the jury that note taking is optional, to not let note taking distract from listening to the evidence and to use the notes only to assist in recalling the evidence. Because the jury will understand that note taking will be only to aid the particular juror in recalling the evidence, there is no danger, as Plaintiff asserts, that incorrect or dishonest note takers will unduly influence the other jurors during deliberations. Based upon the foregoing, Defendants respectfully request this Court deny Plaintiff's Motion in Opposition to Juror Note Taking. DATED this 17th day of January, 2006. J ONES, S KELTON & H OCHULI, P.L.C. By s/ Rachel Halvorson Daniel P. Struck Rachel Love Halvorson 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants, Corrections Correction of America and Stolc Filed electronically with the United States District Court, District of Arizona this 17 th day of January, 2006. COPY mailed even date to: Leon Schydlower, Esq L AW O FFICE O F L EON S CHYDLOWER 210 North Campbell Street El Paso, Texas 79901 and

24 25 26 Brett Duke, Esq. L AW O FFICES OF B RETT D UKE 4157 Rio Bravo El Paso, Texas 79902 Attorneys for Plaintiff, Cheryl Allred s/ Carol S. Madden Case 2:03-cv-02343-DGC Document 165 Filed 01/17/2006 3 Page 3 of 3