Tag Archives: defence counsel

Police Note Taking: Part 3 of 3

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.]

Police Note Taking: Part 2 of 3

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.]

Police Note Taking: Part 1 of 3

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

In this, Part 1, I discuss the importance of good police note taking in the context of telling the story of the case in evidence in a criminal trial.

Introduction

In 13 years as a prosecutor I dealt with hundreds of police officers during pre-trial interviews and at trial. These officers ranged in experience from new recruits to senior members. Many impressed me with their professionalism and dedication. They exemplified the reality that modern policing calls for intelligent, dedicated professionals who are capable of doing a difficult job in a way which gets results and withstands scrutiny in the arena of a criminal trial. These officers usually had certain characteristics which I believe contributed to their success at giving credible evidence in court. One characteristic they invariably shared was good note taking habits.

The importance of good police note taking

Good police note taking is important for two reasons. First, it invariably bolsters the credibility of the police officer giving evidence. Second, it promotes the proper administration of criminal justice by facilitating the proof of facts.

Conversely, sloppy police note-taking can be devastating to the credibility of the officer giving evidence and seriously, if not fatally, undermine the successful prosecution of the case.

The role of good police note taking in the telling of the story of the case 

The prosecution evidence in a criminal trial is like a multi-chapter story. If one or more of the chapters of the story is missing, it provides defence counsel with opportunities to argue that the judge or jury should accept some alternative interpretation of what the chapters mean, one which will undoubtedly involve a reasonable doubt as to the guilt of the accused. Also, if too many chapters are missing, invariably the story as a whole does not make sense and the prosecution fails. Each police officer giving evidence contributes to the development and understanding of the story which forms the basis for the prosecution evidence.

The challenge for a prosecutor is to put the case together, thereby telling the story of the case in evidence. The challenge for defence counsel is to take the case apart and show the story of the case is missing some or all of one or more chapters, such that it doesn’t make sense, creating reasonable doubt as to the guilt of the accused. One way defence counsel can raise a reasonable doubt is through cross-examination of the police officer about personal diligence, or competence, or both, in note taking.

Next time…

Next time, in Part 2, I will discuss the classic way in which a poor police note taker can expect to find his or her credibility under attack in a criminal trial. 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 first part of an article I authored for the Canadian national policing magazine Blueline; re-printed with permission in The Notebook, newsletter of Atlantic Women in Law Enforcement.]

Police expert evidence about blind couriers inadmissible

In February 2014, the Supreme Court of Canada released its decision in R. v. Sekhon 2014 SCC 15. It’s a case which involved the importation into Canada of 50 kg of cocaine. Border officers found the stash in a concealed compartment in a truck Mr. Sekhon was driving. The compartment was opened by a fob in Mr. Sekhon’s possession.

Mr. Sekhon was charged with importing cocaine and possessing it for the purpose of trafficking. He was convicted based in part on the evidence of a police officer’s opinion evidence about blind couriers (also known as blind mules). Mr. Sekhon appealed, first to the BC Court of Appeal, then to the Supreme Court of Canada. The result? Seven judges of the highest court said some aspects of the police officer’s opinion evidence about blind couriers was improper.

What are blind couriers?

They are people who are unknowingly used by others to carry drugs. It’s one reason airport notices warn about leaving your bags unattended.

The Crown witnesses at Mr. Sekhon’s trial included a senior police officer who had been involved in about 1,000 cases of importing cocaine over his 33-year career. The police officer testified as an expert on some aspects of the drug trade and provided his opinion about certain evidence in Mr. Sekhon’s case. When the police officer was testifying the prosecutor asked him about blind couriers. Ever encounter any blind couriers in those 1,000 cases? The answer the police officer gave? He’d heard of them, but never had one in any of his cases. In other words, the police officer testified there is no such thing as blind couriers.

The trial judge convicted Mr. Sekhon of importing cocaine and possessing it for the purpose of trafficking. In doing so, he relied partly on the police officer’s evidence about blind couriers.

Fast forward: five of the seven appeal judges at the Supreme Court of Canada decided the trial judge was wrong to do that. However, they also said it wouldn’t have changed the conviction. So, no new trial, Mr. Sekhon. The other two appeal judges disagreed with their colleagues on this aspect of the case. They would have given Mr. Sekhon another day in court.

Why do we need expert opinion evidence?

It can be invaluable. Used appropriately, it helps a judge or a jury understand the significance of certain evidence. It must be relevant. It must be necessary to help a judge or a jury. It must not be inadmissible for some other reason. And, it must be given by a properly qualified expert.

In cases involving cocaine importation, police officers routinely give expert opinion evidence. They can provide insights about the evidence based on what they’ve learned through training and experience. In such cases expert opinion evidence can really assist a judge or a jury. But, the judge must still do his or her best to ensure that the expert’s testimony remains within the proper boundaries of expert evidence.

Police expert opinions in drug cases aren’t technical or scientific

This is significant. It means police expert opinions in drug cases can’t be challenged in the same way as expert opinions about technical or scientific subjects. For example, you can’t challenge police experts about whether they arrived at their opinions through appropriate technical or scientific procedures. For the most part, the opinions of police experts are based upon on-the-job experience. For this reason alone, it’s very important for trial judges, prosecutors and defence lawyers to ensure they don’t allow the opinions of police experts to substitute for the decisions a judge or a jury has to make. Decisions about things like whether the accused person knew he or she was carrying drugs.

So what was the problem?

In Mr. Sekhon’s case the police officer’s evidence about “blind couriers” effectively enabled the officer to give an opinion on whether Mr. Sekhon knew he was carrying drugs. That question was central to the determination of the guilt or innocence of Mr. Sekhon. And, that opinion was based on the officer’s opinion about the guilt or innocence of other accused persons in past investigations. That was something which was clearly outside the permissible scope of expert opinion evidence.  The Supreme Court of Canada was right to say so.

Court rejects doublethink in sexual exploitation case

In January 2014, the British Columbia Court of Appeal released its decision in R. v. Rich 2014 BCCA 24 dismissing the appeal in a sexual exploitation case of a convicted sex offender seeking to avoid the immigration consequences of his sentence.

Immigration consequences of a sentence of more than two years

Mr. Rich was convicted of sexual exploitation for abuse involving his youngest daughter. He was sentenced to 2 1/2 years in prison. As a non-Canadian who had lived in Canada since a young boy, the sentence meant he was subject to potential deportation. That’s because the provisions then in effect of the federal Immigration and Refugee Protection Act allowed for deportation of non-citizens sentenced to more than 2 years in prison, without any right of appeal against a removal order.

Mr. Rich’s lawyer argued the sentencing judge should have taken the potential immigration consequences for his client into account when deciding the appropriate sentence. So far, so good. The court has previously decided it’s appropriate in BC for a sentencing judge to consider immigration consequences of a particular sentence. Mr. Rich’s problem was that immigration consequences can’t justify a sentence that would otherwise be unfit, and the sentencing judge found a sentence of less than 2 years was not appropriate.

Mental gymnastics

The argument Mr. Rich’s lawyer asked the appeal court to accept went like this. At the time of the hearing of Mr. Rich’s appeal, he had already been in custody for 10 months and was likely a good candidate for parole. If the appeal court replaced the original 2 1/2 year sentence with a suspended sentence followed by probation for 30 months (thereby treating Mr. Rich’s 10 months in custody as probation rather than imprisonment), for practical purposes, it would result in the same remaining punishment, but with 20 months of probation rather than 20 months of parole. This would have avoided any immigration consequences for Mr. Rich.

Wilful blindness, concealment and doublethink

The three appeal judges didn’t buy any of it. Writing for the court, Justice Groberman said that to do so would require the court to engage in an “odd sort of wilful blindness”. In language evocative of George Orwell’s dystopian novel 1984, Justice Groberman said it would be unseemly and inappropriate to engage in “that sort of concealment and doublethink”.

The BC Court of Appeal was right to accept the argument Mr. Rich’s lawyer asked them to accept. Judges, lawyers, accused persons and anyone else who might be interested must be able to read the decisions of our courts and understand why a particular case has been decided in a particular way. We must all be able to know why a particular sentence has, or has not, been imposed. Engaging in the kind of mental gymnastics urged upon the appeal court in this case would not have been good for justice.