Taking written and recorded statements

Three days after the break-in, Ruth Lindqvist comes to the Port Ardent police station to give a formal statement. She has run Lakeshore Hardware for twenty-two years and has never been inside a police interview room before. She is nervous and slightly annoyed: she has already told the story four times, to the night officer, to her insurer, to her staff and to her husband. The detective explains why this time is different. 'This is the version that goes to court,' he says. 'If anything in it is wrong, or different from what you told us before, I'd rather we find out now than have a lawyer find it for us in a year.'

A statement is a formal record of what a person says about an incident, made in a way that allows it to be used later in court. This lesson covers statements from witnesses and victims and, more briefly, the special rules that apply to statements from suspects. It explains the difference between notes of what someone said and a formal statement, the main ways statements are taken, what makes a statement reliable and admissible, and how statements are checked against each other.

Notes of what was said versus formal statements

An officer's notes often record what witnesses and suspects said, sometimes word for word. Those notes are evidence of what the officer heard. A formal statement is different: it is the person's own account, adopted by them, usually by signing a written document or by swearing or affirming to its truth on a recording. The difference matters in court. A witness can be asked whether a formal statement is accurate and can be confronted with it if their testimony differs. Notes made by an officer can show what the officer heard, but the witness may say the officer misheard or misunderstood.

Formal statements are taken when an incident is serious enough that the witness or victim will probably testify, when the account is complex, or when there is a risk the witness will later change the story, become unavailable or be pressured. For minor incidents, many agencies rely on the officer's notes and report. For the Lakeshore Hardware case, formal statements are taken from the owner, Ruth Lindqvist, and the neighbour, Mira Osei. The taxi driver and the restaurant patrons gave brief accounts recorded in officers' notes.

Ways of taking a statement

Statements can be taken in several ways, and agencies' policies specify which method to use for which kinds of case. The trend in both countries has been strongly toward audio and video recording, because a recording captures the exact words, the questions asked, the person's demeanour and the conditions of the interview, and removes disputes about what was said.

When an officer writes the statement, the greatest danger is that it ends up in the officer's words rather than the witness's. A witness who said 'I saw a guy run out' should not be recorded as saying 'I observed a male exiting the premises.' The statement should use the witness's vocabulary, including slang and uncertainty: 'I think he had a bag, maybe.' Questions the officer asked should be recorded too, either in question-and-answer form or by noting where a passage was prompted by a question. Otherwise a reader cannot tell which details the witness offered freely and which came in response to a suggestion.

In Canada, a recorded statement can be given special weight if it meets the conditions set out by the Supreme Court in R. v. B. (K.G.) (1993). If the witness is told about the importance of telling the truth and the consequences of lying, swears an oath or makes a solemn affirmation, and the statement is video recorded in full, the statement may later be admitted for the truth of its contents if the witness recants at trial. Such statements are commonly called KGB statements, and many services take them from key witnesses in serious cases. Section 715.1 of the Criminal Code allows a video-recorded statement of a witness under eighteen, made within a reasonable time after the offence, to be admitted if the witness adopts it while testifying.

Taking a statement step by step

Whatever the method, the process of taking a formal statement from a witness or victim follows similar steps. It overlaps with the PEACE interview model from lesson 7, because a statement is normally the product of an interview.

• Prepare: review what is already known, decide on the method, arrange an interpreter or support person if needed, and choose a quiet, private place.
• Introduce: explain who you are, why the statement is being taken, how it will be used and that the person may be called to testify. Record the person's full identifying details and how they were confirmed.
• Free account: let the person tell what happened in their own words, without interruption, as in the free recall phase of an interview.
• Questions: probe each part of the account with open questions, then clarify details with closed questions, avoiding leading questions.
• Record: write down or record the account in the person's words, including the questions asked.
• Review: read the statement back, or have the person read it, and invite corrections. Corrections are made by drawing a single line through the error and having the person initial the change, as in a notebook.
• Adopt: the person signs each page and the end of the statement, or confirms the recording is true, and the officer records the date, time, place and the names of everyone present.

Two things should never happen. The officer should never write a statement from the notes and ask the witness to sign it without reading it, and should never leave out information the witness gave because it does not fit the investigation's theory. Both have contributed to wrongful convictions. A statement that the witness has read, corrected and adopted, in their own words, with the questions recorded, is far stronger evidence, and far harder to attack, than one that reads as if the officer wrote it.

Statements from suspects

Statements from people suspected of a crime raise legal issues that this course can only introduce; the criminal procedure and investigations courses cover them in depth. The central concerns are that a suspect's statement must be voluntary and that the suspect's constitutional rights must be respected. A statement obtained by threats, promises, oppression or trickery that would shock the community, or in violation of the right to counsel, may be excluded from evidence, and the whole case may collapse with it.

In Canada, the common law confessions rule requires the Crown to prove beyond a reasonable doubt that a statement by an accused to a person in authority was voluntary; the Supreme Court set out the modern test in R. v. Oickle (2000). Section 10(b) of the Charter gives a detained person the right to retain and instruct counsel without delay and to be told of that right. Officers give a caution that the person is not obliged to say anything and that anything said may be given in evidence, and a secondary caution if the person has already spoken to other officers. The time each caution and rights advisement was given, the exact words used and the person's response must be recorded.

The probationary officer arrested Kyle Brandt at 2:29 a.m. Her notes record that she informed him of the reason for his arrest and his right to counsel at 0236 hrs and cautioned him at 0237 hrs, and that he said, 'I want a lawyer. I'm not saying anything.' She stopped there and asked no questions about the break-in. In the cruiser, on the way to the station, he said without being asked, 'That old lady's tools aren't even worth that much.' She wrote the words down exactly, with the time, and noted that the remark was unprompted. Whether it can be used will be decided by the court, but it can only be considered if it was recorded accurately and the circumstances were documented.

Comparing statements

Investigators routinely compare a witness's different accounts: the first account at the scene, the formal statement, any later statements and eventually the testimony. Some differences are normal: a later account may be fuller because the witness had time to think, or less detailed because memory has faded. Other differences are significant, such as a detail that appears for the first time after the witness read about the case on social media, or a key fact that changes. All differences must be disclosed. Identifying them early allows investigators to ask the witness about them and to understand the evidence before the defence does.

The detective compares Mira Osei's first account, from the doorstep recording, with her formal statement given two days later. The program below uses Python's difflib module, which compares two texts line by line, to show which statements were removed, added or kept between the two versions.

import difflib

first = """I heard glass smash and went to the window.
I saw a guy run out of the store and go toward Pine.
He had a white hoodie with the hood up.
I think he had a bag, maybe.
He was young, maybe twenties, and tall.
He ran a bit funny, like his leg hurt.""".splitlines()

formal = """I heard glass smash and went to the window.
I saw a guy run out of the store and go toward Pine.
He had a white hoodie with the hood up.
He had a black backpack and was holding a crowbar.
He was young, maybe twenties, and tall.
He ran a bit funny, like his leg hurt.
I saw on the community group online that someone saw him on Pine.""".splitlines()

for line in difflib.ndiff(first, formal):
    if line.startswith(("- ", "+ ")):
        print(line)
same = sum(1 for line in difflib.ndiff(first, formal) if line.startswith("  "))
print(f"{same} of {len(first)} first-account lines unchanged")

- I think he had a bag, maybe.
+ He had a black backpack and was holding a crowbar.
+ I saw on the community group online that someone saw him on Pine.
5 of 6 first-account lines unchanged

The comparison shows that most of the account is unchanged, but two differences need attention. In her first account Ms. Osei said she thought the man had 'a bag, maybe'; in her formal statement she says he had a black backpack and was holding a crowbar. On the doorstep, the probationary officer had asked her the leading question 'He had a crowbar, didn't he?', to which she replied that she was not sure. The crowbar may now be a genuine memory, or it may be the product of that question and of what she has heard since. The new final line shows that she has read a social media post about the case, a likely source of contamination. The detective does not try to resolve these differences. He records them, asks her about them neutrally, documents her answers and ensures that both versions and the doorstep recording are disclosed.

Statements and the people who give them

Giving a statement can be stressful, especially for victims. Officers should explain the process, allow breaks, offer water and, for victims of violent or sexual crimes, offer a support person and information about victim services. People have the right to a copy of their statement in most circumstances, although agencies may delay providing it during an active investigation. Witnesses should be told that they may be contacted by the defence, that they may choose whether to speak with defence counsel, and that they should not discuss their evidence with other witnesses.

Officers should also be careful about what they tell witnesses. Telling a witness that the suspect has confessed, that other witnesses saw the same thing or that the suspect has a long record can change the witness's account and confidence. Promises should never be made about the outcome of the case. And no one should ever be offered a benefit in exchange for a statement without the involvement of a supervisor and, usually, the prosecutor, because inducements can make a statement unreliable and must be disclosed.