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FACILITATING A LEGAL OBJECTIVE


May 6, 2013
By Brad Smith

1165 words – MR

Note taking can make or break a case

by Brad Smith

I dealt with hundreds of police officers in 13 years as a prosecutor, usually at pre-trial interviews and later at trial. They ranged in experience from senior members to new recruits and many impressed me with their professionalism and dedication.

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Modern policing calls for intelligent, dedicated professionals capable of doing a difficult job in a way that gets results and will withstand scrutiny in the trial arena. The officers I dealt with usually had certain characteristics that contributed to their success in giving evidence in court, including very good note taking habits.

Good note taking is crucial for two reasons.

  1. It can help the credibility of the officer giving evidence at trial.

  2. It promotes the proper administration of criminal justice by helping to prove facts.

Conversely, sloppy note taking can devastate the credibility of a witness and seriously, if not fatally, undermine the successful prosecution of the case.

{Good note taking crucial}

A criminal trial’s prosecution evidence is like a multi-chapter story. If one or more of the chapters are missing, it gives defence opportunities to argue that the judge should accept some alternative interpretation – one which will typically involve a reasonable doubt as to the guilt of the accused.

If too many chapters are missing, the story eventually does not make sense and the prosecution fails. Each police officer giving evidence contributes to the development and understanding of the story that forms the basis for the prosecution evidence.

The challenge for a prosecutor is to put the case together and tell the story in evidence. The challenge for defence is to take the case apart and show that the story is missing chapters, such that there is a reasonable doubt as to the guilt of the accused, or that the story as a whole does not make sense.

One way defence can raise a reasonable doubt is through cross-examination of the police officer witness about personal diligence, competence or both, in taking notes. For a recent internationally reported and stark example of this, consider how defence for South African Olympic athlete Oscar Pistorius shredded the credibility of the lead police investigator in the proceedings to determine if he should be granted bail in connection with charges that he murdered his girlfriend.

In the classic example, the wind up questioning by defence in cross-examination usually begins something like this:

Defence: You’ve been a professional police officer for X number of years?

Witness: Yes

Defence: And so you are familiar with the importance of thorough note taking?

Witness: Yes

By this stage, the judge, prosecutor and usually the witness all know where the defence questioning is headed. These seemingly innocuous opening questions are usually followed by several others along the same lines. The questions will typically suggest answers that the witness must agree with to avoid looking incompetent or foolish. They usually include:

  • The importance of thorough note taking formed part of the police officer’s training.

  • Proper note taking is important because it formally documents matters that are relevant to the investigation.

  • There was no impediment to the ability to document such matters, if not contemporaneously, then later.

Having thus ensnared the witness by gaining agreement with this series of reasonable statements, defence will move to the real point of this area of cross-examination:

  • Other than because of poor note taking or incompetence, or both, the fact that the witness has testified to something significant which is not noted cannot have a reasonable explanation.

This calls into question the credibility of the witness (on this point and perhaps generally) and whether whatever the testimony was about even occurred.

At this point in the cross-examination defence will have effectively challenged the credibility of the witness in that he or she will have agreed to the expected norm (thorough note taking) and been shown to have deviated from it (by failing to record something significant). In doing so, defence will have laid the groundwork for later arguing to the judge that the evidence of the witness about some (usually important) matter should be treated with caution, or even rejected.

That is a simplistic demonstration of what can be a very subtle, protracted defence exercise. I have sat through cases in which this type of defence tactic has been employed and can say it was always obviously uncomfortable for the witness. If their credibility is undermined to such an extent that the judge subsequently comments adversely upon it in reasons for judgment, fair or not, it will remain in the written decision long after the case is over. Significantly, we can expect this to become more prevalent as judges become increasingly active in holding police witnesses accountable for sloppy note taking.

{Importance for the case}

If a witness is discredited on important matters it can seriously, if not fatally, undermine the ability to successfully prosecute a case. That is an unfortunate outcome in any case, but particularly when it involves serious offences, high-level targets and occurs after the investment of much investigative and prosecutorial time and resources.

These issues often play out in court in the context of allegations that one or more of the constitutional rights of the accused, as guaranteed in the Charter, have been violated, such that evidence should be excluded (or some other remedy such as a stay of proceedings be granted). This is important because it is part of another reality of modern policing in Canada, namely that the trial often appears to be more a trial of the police investigation than a trial of the accused. This is not really surprising.

When the evidence against the accused is overwhelming, the obvious defence strategy is to get the evidence establishing guilt ruled inadmissible. Usually the most effective way to accomplish that objective is to establish one or more violations of the Charter rights of the accused.

It is easy to see how the defence can be expected to seize upon something like sloppy note taking in implementing such a strategy. If defence is successful in having the evidence establishing guilt ruled inadmissible it invariably proves fatal to the prosecution of the case.

{Conclusion}

Sloppy note taking is bad for the in-court credibility of the police witness. It undermines the successful prosecution of the case.

The good news for the competent note taker is that when you are cross-examined by defence, it will likely not be along the line of the questioning outlined above. You can always expect to be tested about your recollection of matters, but you will have the benefit of detailed notes to refer to. Cross-examination will not be an uncomfortable experience (or at least not be as uncomfortable as it would otherwise be). You will find the judge describing you as a credible witness. Importantly, rather than creating gaps in the story, your evidence will provide necessary detail, thereby facilitating a very important legal objective – the proper determination of criminal charges on the merits.

BIO

Brad Smith is a former senior federal prosecutor who now practises criminal, regulatory and civil litigation at Affleck Hira Burgoyne LLP (www.ahb-law.com) in Vancouver.


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