Sunday, September 11, 2016

Requirement to make transcript or detailed notes of statement

Criminal disclosure often but not way includes transcripts or at least detailed notes of recorded statements. Such transcripts or detailed notes can form a basis for cross-examination of a witness – they do not govern but they can be put to a witness and if absolutely necessary the actual recording can be played.

But what if no transcript or detailed note is prepared? It appears counsel is required to prepare such transcript or note themselves. (I have had such transcripts prepared for years). Failing to produce such material can lead to a valid ineffective assistance claim.

The Court in R. v. R.S., 2016 ONCA 655 says:

[20] Trial counsel was provided with a CD of M.S.'s statement to the police. He watched the CD, but did not have a transcript of her statement prepared or make notes that would allow him to locate any particular part of the statement should the need arise during the trial. Counsel acknowledged in his cross-examination that he was not in a position to put any part of M.S.'s statement to her at trial should the need arise. Counsel's inadequate preparation effectively rendered M.S.'s statement to the police useless as a tool in her cross-examination. There were material inconsistencies between that statement and M.S.'s testimony.

Of the Law Societies of Upper Canada and Nunavut

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