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I have read that witnesses in a court are allowed to refer to notes when they are testifying, but, without regard as to why they might feel a need to, are they allowed to take notes while they are being questioned?

(Inspired by the question What remedies can a witness use to satisfy the "all the truth" portion of his oath? here on Law.SE, but I am not looking for any specific country.)

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I've never heard of a rule specifically addressing this in the , but I expect most courts would disallow it.

I suspect a court would believe that the note-taking would be a distraction to the witness, whose focus should be on listening to the questions and providing truthful answers. The note-taking may be perceived as a distraction from the testimony for others in the courtroom, as well.

If I were examining the witness, I would probably be entitled to see what the notes say, dragging out the witness's examination. Then the witness would want to take notes about my questions about her notes, and I'd want to see those notes, and you can see how it can get out of control.

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    I don't know whether note taking is or is not allowed, but in your scenario I would think that you are being an ass and your request to see the notes would be denied. Why do you think you are entitled to see them (maybe you are and I don't know). However, some witnesses are disabled and can not comprehend verbal questions. I am confident the judge would order attorneys to submit their questions to the witness in writing. I am pretty sure judges would make reasonable acommodations for disabled participants.
    – emory
    Apr 12, 2023 at 20:33
  • An interesting take!
    – bdb484
    Apr 12, 2023 at 20:37
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    I think in many cases, a witness who asked to take notes when asked simple questions that shouldn't require particular thought should be viewed with suspicion as wanting to keep track of which lies they'd told. On the other hand, a witness who was asked how many green different colors of woozle he'd seen, and who remembered all the woozles he'd seen and their colors, but hadn't counted the unique colors, might reasonably request something with which to write down all the different woozle colors so as to be able to count them.
    – supercat
    Apr 12, 2023 at 20:59
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    @supercat Yes, I think the general gist of your comment is correct: one could easily enough invent a scenario where note taking makes sense, but in the normal course, the court is going to look askance at such a request.
    – bdb484
    Apr 13, 2023 at 1:03
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    @TRiG Keep in mind that the witness is generally doing the bulk of the talking. Counsel asks you open-ended questions, and you answer them. If you miss something or get distracted, you can ask for questions to be repeated or rephrased. You shouldn't have any long lawyer soliloquies to have to focus through.
    – bta
    Apr 13, 2023 at 23:06
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By "referring to notes", I don't believe that means notes that have been taken by the witness during the trial. In certain cases, the witness can refer to notes prepared ahead of time to refresh their memory about something. They can't simply read content directly from the notes, though, they have to have an "independent recollection" of the facts. "Notes" here can actually refer to more than just something the witness wrote for the purposes of the trial, it could also be a report, a photograph, or a physical item. As an example, in State v. Brown, 350 N.C. 193 (1999) a witness saw a letter she had previously written, which refreshed her memory about certain statements she had made.

If this is done during testimony, Rule 612 of the Federal Rules of Evidence enables the opposing party to inspect the notes in question, cross-examine the witness about the notes, and enter any relevant portions of the notes into evidence. That means you have to be careful about what notes you use because if you (for example) had notes of a conversation between yourself and your attorney, you would waive attorney-client privilege the moment you use them on the stand.

From a practical standpoint, I'd imagine this makes it very difficult for a witness to take notes while on the stand. Opposing counsel will see you with notes, they'll demand they be turned over for inspection, and now you don't have anything to write on any more.

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  • Yes, I also understood referring to notes to be pre-prepared notes. I suppose a reporter's notebook could be used where it is easy to tear off pages. Apr 13, 2023 at 12:11
  • @AndrewMorton True, but if you're constantly handing over your notes, you can't read them any more so that makes them kind of pointless. I'd also expect a judge (and possibly opposing counsel) to get aggravated about how all these extra procedures are slowing down the process. You'd need a very specific and compelling reason to justify the extra hassle.
    – bta
    Apr 13, 2023 at 22:35

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