The criminal justice system plays an important role in our society and should be taken seriously by all parties involved. There are usually serious consequences for people who are charged and tried for crimes, whether or not they committed the particular offence. The system relies on police officers to disclose their findings to the Crown in a timely manner so that the information can be communicated to the person charged with the offence. Anyone charged with an offence has a right to know the case against them. When an officer fails to disclose their observations or findings, then the accused person cannot not know the case against them ahead of time.
Allison Kravetsky and I recently successfully secured an acquittal for a person charged with a serious crime. There were four potential police witnesses, only one of whom took notes at the time of the offence.
New police officers are taught about the importance of taking notes while they are in training. Police officers investigate and solve many crimes over their careers, so remembering the details of one specific investigation can be difficult for them. Any police officer involved with a crime could be called to court to give evidence, often more than a year after the incident occurred. During that time period, the officer may be involved in many other investigations of similar circumstances.
Ms. Kravetsky’s research for this file led her to a case out of Ontario in which the Judge comments about a police witness giving evidence without the proper notes:
With respect to the question of credibility, it is my view that I cannot accept on a balance of probability that the accused actually did present herself as unsteady on her feet and confused to Jackson. The failure to note these observations is a serious omission and, as I have noted to counsel, it cannot be accepted. If it was ever an acceptable explanation, in this day of full disclosure it cannot be an acceptable explanation for a police officer to say ‘I did not note it because I would remember it’. It is necessary for the officer to at least somewhere, maybe not necessarily in his notebook, put the significant observations that he made. In my view, the absence of the questioned observations in his notebook lead to the conclusion that those observations were not, in fact, made at the time but are perhaps something that over the course of time the officer has come to believe that he saw. I cannot accept, on the balance of probabilities, that those observations were made.
R. v. Zack, 1999 CarsellOnt 6501
The comments above, along with some of the circumstances of our case, formed the basis of our defence. The officers had some memory of the incident, but could not be sure about the details. When questioned further, it became clear that at least one of the officers was attempting reconstructing his memory, rather than repeat his thoughts from that time. That is dangerous because memory does not get better over time, and human beings tend to fill-in or reconstruct lost memories so that they make sense. Ms. Kravetsky and I were able to argue that certain police officer’s memories might not be accurate, which, at least in part, lead to our client’s acquittal.
It is more important that police take notes of their observations than civilian witnesses. Police officers deal with hundreds or thousands of incidents over a career which could cause their memories of the individual events to be less reliable. Civilian witnesses don’t usually have many other similar experiences to negatively impact their memories.
If you have been involved in an incident involving the police, it is a good idea to take notes. You should include the date and time of the incident, and any other observations you made at the time. You should make the notes as close in time to the incident as possible, and write them down using a pen and paper. If you end up being a witness and you ask the Court to look at your notes to help refresh your memory, the Judge will usually make sure you took the notes at the time of the incident, and that they were made in your own handwriting. It can be very helpful to have a written reminder of what happened.
*note: the information on this page is for general knowledge and is not legal advice.