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.
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.]