Cellphone Recordings for Evidence: Does it help or hurt Uniformed Officers?

Nov 21, 2021

We live in a digital world where video and other recording devices are omnipresent in our everyday lives. We have come to accept this reality, and the courts have come to expect that the State will record their actions, with full disclosure of these recordings to all involved parties. Technology has evolved to the point where audio and video recording are simple and probable under most circumstances. The push for police body cameras, in conjunction with police vehicle recordings, is a result of the public and courts demanding a “silent witness” to police actions. Likewise, the court also expects an accurate recording of witness and suspect statements. This accuracy alleviates most arguments as to what was said and by whom, and the tone of the police-public interaction. The courts also expect photos or video footage which document where evidence was found and how it appeared at the time of police discovery.

In recent years, I have come across law enforcement agencies that are still taking handwritten statements, without photographs or video of crime scenes, or evidence. When questioned as to why they don’t use recording devices including cell phones, the answer is usually that it is against their agency policy to use a cell phone to record anything. I would counter that they all carry cellular phones, either personal or service-issued, and that they could have been conveniently accessed for crime scene documentation. Some officers have been of the understanding that their device could be seized by defence counsel if used for such purposes.

So let’s break down this ill-conceived notion.

Having been a police officer for over 30 years, I have never had the Court demand my cellular phone that I often used to record statements, search warrant scenes, and (document?) evidence. These recordings provide a digital time stamp and timeframe markers for counsel, but also my own notes. Conversely, on one occasion, I had the presiding judge and the defence counsel question why I never used my cell phone to record a crime scene, when a regular camera was not available. Furthermore, as an expert witness, I have often had to agree with defence counsel, who are impeaching the lack of digital recording by other police investigators, that recording a crime scene with any means necessary is the best practice. The preferred practice of digitally recording statements is also set out in two high profile commissions of inquiry regarding the police investigation of Dalton et al (2006) and David Milgaard. The only thing that law enforcement agencies must be cognizant of is that they must account for the storage and continued existence of digital evidence.

Now, let’s imagine a scenario where defence counsel wants your cell phone that you used to record a statement or crime scene. The first question would be, why? What is the probative value? The answer is none. The next question is how would they get your phone? Defence counsel has no extraordinary power to seize your phone. Could a judge order you to turn over your phone for examination? My opinion would be no, as your phone has no probative or evidentiary value. I would suggest the only action a judge could take is to order third party records, including such things as your cell phone logs, through an O’Connor Application made by defence counsel.

Finally, let’s look at the mechanics of taking a statement. The best statements are pure versions, with minimal interruptions by an investigator while a person recounts an event. If you digitally record this statement with a device, you can let the interviewee express their statement without interruption or contamination while the investigator actively listens. Active listening encourages the person being interviewed to continue speaking, instead of when an investigator constantly interrupts an interviewee, throwing them off their train of thought, and potentially contaminating the statement. um magni.

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