FAILURE
OF POLICE TO PRESERVE NOTES[1]
You
have heard testimony that ___________________ failed to preserve
(his/her/their) original notes in this case. Law enforcement officers are required to
preserve contemporaneous notes of their interviews and observations at the
scene of a crime, even after producing their final reports. A defendant is entitled to test whether the
officer has accurately recorded statements and observations that were made
contemporaneously and also to test whether the final report and the officer’s
trial testimony are inaccurate because of some inconsistency with what the
officer recorded at the scene. When the
contemporaneous notes are not preserved, the defendant is deprived of this
opportunity to test the accuracy of the contemporaneous notes, the final report,
and the trial testimony.
[Insert Parties
Contentions, If Any]
It is for you the jury to decide the
credibility of the evidence presented. In
evaluating the officer’s credibility, you may infer that notes lost or destroyed
by an officer before trial contained information unfavorable or inconsistent
with that officer's trial testimony or final report. In deciding whether to draw this inference,
you may consider all the evidence in the case, including any explanation given
as to the circumstances under which the contemporaneous notes were lost or destroyed.
In the end, however, the weight to be
given to the testimony, and to the loss or destruction of the notes, is for
you, and you alone, to decide.
[1] This charge must be requested by a defendant, and when
given it should be molded, after conference with counsel, to the facts of the
case. State v. W.B., 205 N.J. 588 (2011). Note that the Court
stated in footnote 10 of W.B., "Every opportunity when contemporaneous
notes are lost or destroyed does not necessitate an adverse inference
charge." Id. at 608-09. The Court cited State v. P.S., 202 N.J.
232 (2010), for this proposition, but when the adverse inference charge may be
deemed inapplicable is not entirely clear. The issue will have to be addressed
on a case-by-case basis until the Court provides further guidance on the
subject.
[2] In State v. W.B, 205 N.J. 588, 608-09 (2011),
the Supreme Court held that the rule against destroying contemporaneous notes
would not be effective until 30 days after the opinion, which is May 27,
2011. This charge is inapplicable to
notes destroyed or lost before this date.
