This is the third of three posts about police note taking.

In this, Part 3, I discuss the effect sloppy police note taking can have on the outcome of a criminal trial.

The trial of the police investigation

If a prosecution witness is discredited at trial 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 so when it involves serious offences, with high-level targets, 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 Canadian Charter of Rights and Freedoms, has been violated, such that evidence should be excluded (or that some other remedy such as a stay of proceedings should be granted). This is important because it is part of another reality of modern policing in Canada, namely that a criminal 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 strategy for a criminal defence lawyer is to get the evidence establishing guilt ruled inadmissible. Usually the most effective way to accomplish that objective is for defence counsel to establish one or more violations of the constitutional rights of the accused.

It is easy to see how sloppy police note taking is something criminal defence lawyers can be expected to seize upon in implementing such a strategy. And, if defence counsel ultimately is successful in having the evidence establishing guilt ruled inadmissible, it invariably proves fatal to the prosecution of the case.

Conclusion

Sloppy police note taking is bad for the in-court credibility of a police witness. It undermines the successful prosecution of a case. If you are a police officer, the good news if you are a diligent and competent note taker is that when you are cross-examined by criminal defence lawyers it will likely not be along the lines of the questioning outlined in my Part 2 post on this topic. 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 by defence counsel will not be an uncomfortable experience (or at least not as uncomfortable as it otherwise would be). You are more likely to find the judge describing you as a credible witness. And importantly, rather than creating gaps in the story of the case, your evidence will provide necessary detail, thereby facilitating a very important legal objective – the proper determination of criminal charges on the merits.

[Note: This post is the third part of an article I authored for the Canadian national policing magazine Blueline; reprinted with permission in The Notebook, newsletter of Atlantic Women in Law Enforcement.]

This is the second of three posts about police note taking.

In this, Part 2, I discuss the classic way in which a poor note taker can expect to find his or her credibility under attack in a criminal trial.

A typical cross-examination on police note taking

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

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

Witness: Yes

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

Witness: Yes

By this stage, the judge, the prosecutor, and usually the witness, all know where the defence counsel’s questioning is headed. These seemingly innocuous opening questions usually precede several others along the same lines. These questions typically will suggest answers the witness has to agree with to avoid looking incompetent or foolish. They usually getting the witness to agree that:

• The importance of proper 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 counsel will move to the real point of this area of the cross-examination. The police officer can expect that defence counsel will ultimately suggest that:

• Other than because of poor note taking or incompetence, or both, the fact that he or she has testified to something significant which is not noted cannot have a reasonable explanation;
• This calls into question the credibility of the police officer (on this point and perhaps generally) and whether whatever the testimony was about even occurred.

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

The above is simply an abbreviated narration of what can be a very subtle, protracted exercise by defence counsel. Having been counsel in cases in which this type of tactic has been employed, I can say it was always an obviously uncomfortable experience for the police officer. And, if the credibility of the police officer is undermined to such an extent that the judge subsequently comments adversely upon it in reasons for judgment, fair or not, it is something which remains part of the written decision, and can have consequences which continue long after the case is over. Significantly, we can expect this to become more prevalent as judges become increasingly active in holding police officers accountable for sloppy and poor note taking.

Next time…

Next time, in Part 3, I will discuss the effect sloppy police note taking can have on the outcome of a criminal trial.

[Note: This post is the second part of an article I authored for the Canadian national policing magazine Blueline; reprinted with permission in The Notebook, newsletter of Atlantic Women in Law Enforcement.]