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OFFICERS AS WITNESSES


June 1, 2016
By Ian D. Scott and Joseph Martino

1718 words – MR

OFFICERS AS WITNESSES

Changing Notes

by Ian D. Scott and Joseph Martino

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What happens if a police officer remembers something after their notes are prepared and wishes to record it? Should they record it in their notes and, if so, where?

There is little doubt that it should be recorded. Notes, once made, are not carved in stone. They can even be changed. But if they are changed or additions are made, the officer should record the date of the change or addition, and most importantly the reason for it. In other words, the officer should be in a position to explain why a change or addition was made when giving evidence at trial.

It is perfectly understandable for an officer, while viewing the scene of an accident or a crime, or while speaking to somebody about the incident, to suddenly remember something that he or she forgot to record. It is important to stress, however, that the officer’s memory must be his or her own and not that of someone else’s.

Undoubtedly, defence counsel will attempt to attack a change or addition to the notes as a deliberate fabrication or an error. That attempt at impeachment is perfectly proper. Defence counsels’ duty is to use every legitimate tool at their disposal to obtain an acquittal for their client. While allegations of impropriety or sloppiness can be upsetting for anyone answering questions under oath, officers in their role as professional witnesses should keep in mind that defence counsel are fulfilling their duty to thoroughly test the evidence against their client.

The following illustrates the type of cross-examinations that could be carried out by an experienced defence counsel:

  1. You investigated this (incident) on (date) approximately six months ago?

  2. Yes.

  3. And in the intervening period, you have investigated at least a half dozen other complaints?

  4. Yes.

  5. Your purpose in preparing notes is to record what you observed so that you can refresh your memory when you are called upon later to give your evidence?

  6. Yes.

  7. To ensure that you will give a fair and accurate account of the events, you try to make comprehensive notes of everything that you observed?

  8. Yes, everything that is relevant.

  9. And if it is relevant, you make a practice of recording it carefully in your notes?

  10. Yes.

  11. And you did so on this occasion?

  12. Yes.

  13. Now you testified that you saw…?

  14. Yes.

  15. And you considered that to be an important and relevant piece of evidence in this case?

  16. Yes.

  17. Will you now show us where you recorded that observation in your notebook?

  18. I didn’t record it.

  19. You are asking the court (and jury) to believe that although it was important and relevant to this investigation and you always record in your notebook what is important and relevant to an investigation, you did not do so this time?

If the officer’s notes are not comprehensive but rather only a brief summary of his observations, then he may be subjected to the following examination:

  1. Your purpose in preparing notes is to record what you observed so that you can refresh your memory when you are later called upon to testify?

  2. Yes.

  3. You said that you wrote down only what you considered to be important?

  4. Yes.

  5. That means that you did not write down everything that you saw – only what you thought was important?

  6. Yes.

  7. So that if something happened that you did not consider important, you did not write it down?

  8. Yes.

  9. Now I am going to suggest to you that the following happened…

  10. I cannot recall that.

  11. Of course you cannot recall that because the only thing that you can recall is what you wrote down in your notes?

  12. All I can say is that I do not recall that.

  13. And that is simply because, as you said earlier, you have investigated at least a half dozen other complaints in the meantime and that you made notes to assist you in recalling what happened?

If an officer wants to demonstrate to the court that he or she is an impartial investigator and is attempting to be open and forthright with the court, the officer should record everything, whether it is helpful to the case or not. If the only information recorded is solely relevant to the officer’s belief in the guilt of the accused, he or she leaves oneself open to an attack by defence counsel on the bias of the investigation. The defence will suggest that the investigation centred only on the accused and did not consider whether any other person was the actual perpetrator.

How should police officers go about preparing their notes?

Where two officers have observed the same event, it is only natural for them to be concerned about the notes that they are preparing. They will invariably find themselves on the horns of a dilemma. If the notes are not exactly the same, defence counsel will probably stress each minor discrepancy suggesting that their observations and recollection of the events are faulty. On the other hand, if the notes are very similar, then undoubtedly defence counsel will suggest that the officers collaborated in preparing a single version of the events.

For many years, police forces in Canada encouraged police officers to collaborate when making notes of the event provided that the notes were made while the events were fresh in their minds and provided that the notes contained only what each has observed. This practice is no longer considered by either British or Canadian authorities to be proper. In the United Kingdom, as a result of comments made by a judge in a constitutionally based judicial review of a police shooting investigation conducted by the Independent Police Complaints Commission about the practice of conferring, the Association of Chief Police Officers (`ACPO’) recently changed its practice in this area. In its November 2009 edition of the , and adopted in its 2011 edition, the ACPO amended its provision addressing officers’ providing of accounts in the post deployment stage. It now reads that in general officers should not confer with others before making their accounts because “the important issue is to individually record what their honestly held belief of the situation was at the time force was used.”

The Ontario Court of Appeal also considers collaboration by police officers as improper. In Barrett (1993), 82 C.C.C. (3d) 266 (Ont. C.A.), reversed on other grounds[1995] 1 S.C.R. 752 (S.C.C.), the Court criticized the practice of one officer taking notes and the other reading the notes over and confirming the truth of the notes. It was held that the proper practice is for each officer to make his or her own independent set of notes.

The inherent danger of collaborating in making notes is obvious. People do not necessarily witness an event in exactly the same way. In fact, what happens is that each of us extracts out of an observation what impresses us the most. As stated by the original author of this text when he was Commissioner of the 2008 Manitoba Taman Inquiry at page 137 of his report:

The danger that an officer may accept the recollection of a colleague because of the officer’s own misgivings as to what he or she actually saw may be heightened when the other officer is a senior officer. The British Psychological Society recently completed a scientific study on memory in relation to the courtroom process: Guidelines on Memory and the Law. British Psychological Society Research Board, “Guidelines on Memory and the Law:

Recommendations from the June 2008, Revised April 2010. Acknowledging the law’s strong reliance on witness recall, the Society recognized the potential of one’s recollection being tainted by various factors including two people discussing an event and that influence will vary depending on the relationship between the two parties. In other words, the officers may unconsciously and quite innocently try to reconstruct an event from their combined memories and believe they witnessed something when, in fact, they did not.

In a recent Supreme Court of Canada decision deciding that officers had no right to confer with a lawyer before writing their notes in SIU investigations, the majority referred to excerpts from the Taman Inquiry, and concluded that officers have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation: Schaeffer v. Wood, 2013 SCC 71 (S.C.C.).

There is no reason why each should not commit to their own separate notes their own recollection of the events. There will undoubtedly be marked discrepancies, but is there anything wrong with that? Surely no judge or jury would say to themselves that “because there are certain differences, all of the testimony is to be discredited”. Indeed, the lack of differences in recollection may render an officer’s testimony suspect.

Our system of justice expects that each witness appearing before the court will testify as to what he or she actually saw and heard. Frailties of observation or recollection are not only recognized but are expected. By encouraging police officers to collaborate on their notes, we may be encouraging them to unconsciously fabricate evidence.

BIO

Reproduced by permission of Carswell, a division of Thomson Reuters Canada Limited. Excerpted from <Salhany’s Police Manual of Arrest, Seizure and Interrogation,> Eleventh Edition,
by Ian D. Scott, and Joseph Martino, (978-0-7798-6718-9) – extract: Chapter 5 Interviewing Witnesses, Section 6 pp. 311-322,


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