Contemporaneous Notes

An interesting development in New Jersey has settled the issue of production of notes taken by law enforcement officers during the course of an investigation. That state's attorney general has directed that contemporaneous notes written by police now must be transmitted to the prosecutor. This is a step forward for the rights of criminal defendants in NJ.

'The term "contemporaneous notes" means any notation, whether handwritten, typed, entered into an electronic note-taking device or audio recorded, that describes or memorializes the note taker’s personal perception of what transpired in the course of a witness interview or that memorializes the officer’s personal observations at the scene of the crime.'

Previously, when a police report was introduced in court and the defense attorney would ask for the officer's notes, the standard response would be "My notes were incorporated wholesale into the report now before the court. Pursuant to departmental policy, those notes were destroyed."

Not only must those notes now be turned over but they must be clearly labeled and identified as part of the police case upon which the proseuction will rely. The term "notes" does not include confidential information or attorney work product. If this material is contained within the material provided to the prosecutor, it should be identified as such by the transmitting agency.

The directive came about after the New Jersey Supreme Court handed down a decision dealing with the production of contemporaneous notes. This decision says in part, that when notes aren't made available to the defense either because they were lost or destroyed, the jury may make an adverse inference regarding the state's case.