You are an expert in your field, but being an expert court witness is no easy task. How confident and capable are you in expressing your knowledge in front of:
- a judge?
- a jury?
- and under cross-examination?
In this interview with Jonathan Hak (a world class instructor on expert testimony), we discuss what are some ways to better prepare as an expert witness.
Your reputation and career can either make or break based on your court-room testimony. Yet very few experts have invested time in developing their testimony and documentation skills – both essential when on the stand.
I hope this in-depth interview will help better prepare you for when you next testify in court.
Mr. Jonathan W. Hak, Q.C.
Expert Witness & Investigator Testimony Instructor; Forensic Video Analysis Legal Instructor;
Barrister and Solicitor
https://www.jonathanhak.com
Read time: 20 minutes.
Introduction
By Rob Merriott
I recently had the pleasure to speak with and interview Jonathan W. Hak, Q.C. regarding expert testimony and his thoughts on notes and documentation.
Jonathan is a barrister and solicitor and law lecturer with over 30 years of experience as a Crown Prosecutor for the Alberta Crown Prosecution Service (ACPS) in Calgary, Alberta, Canada. He was appointed Queen’s Counsel in 2006.
Queen’s Counsel (Q.C.)
It is tradition in the province of Alberta to have the Lieutenant Governor in Council appoint lawyers who have made particular contributions to the legal profession or public life in the province as Queen’s Counsel. This is done under the authority of the Queen’s Counsel Act.
In his previous role as a Crown Prosecutor, he prosecuted major crimes including many homicides, and he continues to specialize in legal issues involving expert evidence, expert witnesses and digital evidence.
When Jonathan retired from the ACPS, the Calgary Sun wrote an article on the “loss of one of the province’s top prosecutors”.
He obtained his:
• Masters in Law from Cambridge University (UK)
• Bachelor of Laws from University of British Columbia (Canada)
• Bachelor of Science from California State University (USA)
• Diploma in Criminal Justice from Mount Royal University in Calgary (Canada).
Since concluding his service for the ACPS, Jonathan has transitioned into researching, writing, publishing, and teaching law on a full-time basis in Canada, the United States, the United Kingdom, Singapore and Hong Kong.
What is the equivalent status of a Canadian Crown Prosecutor in the United States?
A Crown Prosecutor in Canada is the USA equivalent of an Assistant United States Attorney (AUSA) or an Assistant District Attorney (ADA).
Mr. Hak is an expert in the legal field as it relates to expert testimony and presenting complex evidence like Digital Forensics, Cybercrime and Video Forensics in criminal and civil court.
It was certainly an honour to speak with Mr. Hak and gain some insight into his views on the topics of notes and documentation. Please enjoy my interview with him.
My Conversation with Jonathan Hak, Q.C.
Jonathan Hak Q.C.
Instructor on Expert Witness Testimony
Rob Merriott
Founder of
Forensic Notes
Jonathan:
It is rather difficult to summarize a 30-year career as a Crown Prosecutor. I considered it an honour and a privilege to engage in the search for the truth, to see that justice is done for both victims of crime and defendants, and to shepherd victims of crime and their families throughout the court process.
Though I prosecuted many complex and high-profile cases, it was never about me. It was about the cases and the people that were part of them.
Rob:
After concluding your service as a Crown Prosecutor, where did your career take you?
Jonathan:
I have been teaching at the post-secondary level for over 30 years. I have also been teaching in the area of technology law as it relates to forensic video analysis for LEVA (Law Enforcement and Emergency Services Video Association International Inc.) for over 19 years. Additionally, I developed and have been teaching courses in Courtroom Testimony for Expert Witnesses and Courtroom Testimony for Investigators in Canada and the United States. After my ACPS service, I focused on this teaching as my full-time work.
What is LEVA?
LEVA is a non-profit organization that provides advanced training and certification in the science of forensic video analysis.
Expert Witness Training Courses
Rob:
Can you provide further details about the courses you offer through your private training?
Jonathan:
Yes, I developed and teach two courses geared for the expert witness and investigative audience. I provide this training in the US and Canada, to federal, state/province, local law enforcement, forensic labs and other clients. I expect to provide some training in the UK soon.
- Courtroom Testimony for Investigators
- Courtroom Testimony for Expert Witnesses
Courtroom Testimony for Investigators
The investigators course is designed for investigators at all levels of experience.
Topics covered during the course include:
- Writing investigator notes and reports
- Preparation for courtroom testimony
- Disclosure issues
- The role of the investigator in court
- Investigator objectivity – avoiding tunnel vision and bias
- Strategies for effective direct examination
- Essential communication skills needed when presenting evidence to juries and judges (many areas are covered under this topic)
- Visual, multi-modal presentation of evidence
- Use of notes and investigative material
- Strategies for successfully handling cross-examination
- Avoiding being controlled by defence counsel
- Dealing with mistakes on the witness stand
- How to handle aggressive cross-examination; various strategies are discussed
- The investigator as affiant; Garofoli applications
- Moot court practice
Of particular interest to Digital Forensic Examiners and Video Forensic Analysts is my course for Expert Witnesses.
What is an Expert Witness?
Expert Witness Definition:
An expert witness is a person with specialized knowledge in a particular field who applies that expertise in a legal setting in order to assist in the search for the truth. Becoming an expert witness in any field is a significant accomplishment. It means that through your education, training and experience you have gained knowledge in a particular field of endeavor that is superior to that of the trier of fact.
~ Jonathan W. Hak, Q.C.
Courtroom Testimony for Expert Witnesses
The Expert Witness course is designed for any person who may be called as an expert witness in criminal or civil matters. This includes Digital and Video Forensic Examiners and Analysts, though the course is intended for experts in all areas of expertise.
Testifying as an expert for the first time can be a terrifying experience for many when they feel ill-prepared for what may occur during their testimony. Unfortunately, their fears can be valid without proper preparation and training.
Communication is vital. If all of the work the expert has done is not presented in an effective manner, then the full evidential value of the expert’s work may be lost.
Want to save your job? Your reputation?
Read Brett Shaver’s article “No job is finished until the paper work is done” on the importance of proper documentation!
The goal of the course is to teach experts how to become effective expert witnesses and to communicate their vital evidence in an effective and compelling manner so as to maximize its value when presented in court to a judge or jury.
The 3-day course covers the following topics:
- Preparation for courtroom testimony
- Drafting expert reports
- Peer Review
- The role of the prosecutor, defence attorney, judge and jury
- Trial procedure
- Becoming qualified as an expert witness for the first time
- Expert witness bias
- Drafting curriculum vitaes
- The role of the expert witness
- Strategies for effective direct examination
- Essential communication skills needed when presenting evidence to juries and judges (many areas are covered under this topic)
- Visual, multi-modal presentation of evidence
- Strategies for successfully handling cross examination
- Changing opinions
- Daubert hearings
- The role of the expert
Rob:
Can you explain what happens during Moot Court?
Jonathan:
Prior to the Expert Witnesses course, I ask participants to send me examples of curriculum vitaes and expert reports they have completed. During the course, we will then conduct moot court sessions with the writer of the document acting as the expert. Other participants will be asked to take on the role of defence and prosecutor.
Although this can be uncomfortable for the participant, the knowledge they gain from this moot court session is invaluable. Not to mention, it is better to feel uncomfortable in a friendly and safe environment than in court during a major criminal proceeding.
What is Moot Court?
Moot Court Definition:
Moot court allows participants to take part in a simulated court proceeding
Testifying as an Expert Witness in Court
Rob:
Do you have any advice for testifying as an expert?
Jonathan:
Far more than can be contained in this interview! A couple points to consider. You have to remember that when testifying, you are effectively having a conversation wherein your primary audience is the judge and jury. You want to talk naturally in a comfortable, informative and conversational manner.
The Judge and Jury are the audience, not the person asking the questions. The goal should be to find the truth.
When you are testifying as an expert, it is important to note that it is in general an open-book exam, meaning you can and should when needed refer to your notes and report for answers to questions asked during the trial.
Since you can seek permission to refer to your notes and report, it is preferable to refer to your notes to answer questions in a specific and detailed manner rather than to provide vague or non-specific answers.
For example, it is better to refer to your notes and state that a key piece of evidence (video, text message, etc.) occurred on January 12th, 2019 at 3:42 AM (PST) than to say it occurred around the beginning of the year at about 4am.
Rob:
What is the role of the expert witness in court?
Jonathan:
Expert witnesses have a duty to the court to provide fair, objective and non-partisan assistance.
Within your expert report, you might consider including something similar to:
“I understand that my duty as an expert witness is to assist the court by providing impartial, objective, unbiased and independent opinions uninfluenced by the party who has retained me or called me as a witness.”
Though not a legal requirement in most jurisdictions in Canada, or the United States, this statement of duty is central to the role of the expert witness. It should guide an expert through all facets of his/her work.
Rob:
How should you answer questions when you are unsure of the answer?
Jonathan:
Know your limits. If you are unsure of the answer, simply advise the Judge that you do not know the answer or, if appropriate, that the question is beyond your area of expertise.
Remember, you build up your reputation and credibility as an expert over time. However, you quickly ruin that reputation if you are caught speaking beyond your area of expertise. A damaged reputation can make any future testimony difficult.
Rob:
Do you have any testimonials or reviews from previous students who have taken your courses that you would like to share?
Jonathan:
The most common comment that I get from people who attend these courses is that they wished they had the courses earlier in their career. They are very popular courses that are well received.
Rob:
Where do you offer your Expert Witness training?
Jonathan:
My courses are offered in various locations in Canada and the United States. While many of them are closed registration courses, limited to members of the agency hosting the course, some are open registration. I list the open registration courses on my website. Agencies wishing to host a course can contact me at jonathan@jonathanhak.com
Documentation & Notetaking
Now that we know more about you, let’s get into questions specific to notetaking, documentation and how it relates to testifying in court as an expert.
Rob:
How valuable is proper notetaking during an investigation?
Jonathan:
Contrary to popular belief, although technically it is the defendant who is on trial, in reality it is the police investigation that is on trial.
This reflects the fact that the burden is on the Crown to prove its case beyond a reasonable doubt and the defence is entitled to, and should, take advantage of errors in the police investigation and the documentation of that investigation.
In my 30+ year career as a Crown Prosecutor with the Alberta Crown Prosecution Service, I conducted innumerable trials, most of which involved police witnesses and many of which involved forensic evidence. In that context, I have seen defence counsel cross examine police witnesses at length about their notes, sometimes to considerable effect.
Contrary to popular belief, although technically it is the defendant who is on trial, in reality it is the police investigation that is on trial.
~ Jonathan W. Hak, Q.C.
Jonathan:
Poorly created, drafted and preserved notes can, and have, resulted in the following:
- A judge finding that the officer’s testimony lacked credibility because it did not properly reflect what was recorded in the officer’s notes. In such cases, reasonable doubt can be raised on such fundamental issues as dates, times, events, opinions formed, evidence collected, and statements made.
- Where there is a contest between the testimony of the defendant and the officer, poor notes can result in the judge preferring the evidence of the defendant where it varies with that of the officer.
- An outright dismissal of a case because the Crown’s own case had so many internal problems that the defendant need not even testify.
- An officer looking rather foolish. Poorly created notes reflect poorly on the officer.
- An officer committing perjury when trying to fill in gaps in notes.
- An officer seemingly guessing about what should have been, but was not, recorded.
The defence does not have to prove anything. All they have to do is raise a reasonable doubt. When that doubt comes from the officer’s notes, or lack thereof, then there is effectively no trial on the merits of the investigation. The officer’s notes alone create the doubt needed to gain an acquittal.
The information above is the same for private investigators who likely don’t have the same experience testifying in court. As a result, detailed notes and documentation will help to calm the nerves and allow you to present the evidence you need.
The defence does not have to prove anything. All they have to do is raise a reasonable doubt. When that doubt comes from the officer’s notes, or lack thereof, then there is effectively no trial on the merits of the investigation. The officer’s notes alone create the doubt needed to gain an acquittal.
~ Jonathan W. Hak, Q.C.
Rob:
Can you explain how to properly take notes?
Jonathan:
Some fundaments aspects of police and forensic notetaking follow. These are discussed in my Courtroom Testimony for Investigators course.
- The purpose of producing investigator notes is to record pertinent observations during the course of an investigation. Such observations may include:
- dates and times specific events occurred
- dates and times noted observations were made
- details of events and observations
- witness information
- information regarding exhibits
- scene related data
- ongoing progress of investigation
In order for notes to be used in court, they must have been properly made and retained.
- Relevant considerations include:
– rough notes can be made at the scene but should be retained as part of disclosure (we don’t want to get sidetracked on disclosure arguments) - rough notes can be used to create more detailed notes provided the more detailed notes are made in a timely fashion
- notes should be written in chronological order
- this means that when additions are made to notes, add them at the end rather than modifying existing notes
- all modifications to notes should be noted, initialed and dated
- indicate the date and time notes are being made
- notes can be made in supplied notebooks or bound journals that have page numbers (or where you add page numbers)
- notes should not be made on loose sheets of paper (except for rough notes)
- notes can be made in electronic format but the same rules apply re additions or modifications
- only use electronic notes if you know how to use them properly
Lastly, notes should be made in English (or an appropriate official language). This may seem obvious but I had a case wherein an officer made notes in Greek. That would be perfectly acceptable if we were in Greece but as I recall, we were in Canada at the time.
Electronic Notes
Notes can be made in electronic format but the same rules apply re additions or modifications – only use electronic notes if you know how to use them properly
~ Jonathan W. Hak, Q.C.
Jonathan:
In my Courtroom Testimony for Investigators course, I explain that officers are entitled to an open-book exam when testifying. Therefore, the more complete and helpful the officer’s notes are, the more effective his/her testimony will be and the less fruitful cross examination may be.
If you know in advance that the test is open-book, why not properly prepare for it?
Open-Book Exam – Courtroom Testimony
If you know in advance that the test is open-book, why not properly prepare for it?
~ Jonathan W. Hak, Q.C.
Electronic Notes
Rob:
When discussing Electronic Notes, what would be examples of poorly created or preserved notes?
Jonathan:
An example would be notes that have been edited or otherwise do not properly reflect true content.
Rob:
If an Investigator decides to edit an Electronic Note they made previously, how can this be accomplished properly to ensure no issues in court?
Jonathan:
The reader must be alerted to the fact that an edit has been made, the details of the edit, and when the edit was made. The witness stand is not the time to reveal this information.
Rob:
Have you ever experienced any issues with electronic notes?
Jonathan:
I once had a patrol officer use OneNote (not normal for patrol) to record his observations at the scene. His notes and observations were very important, including the times things happened. Imagine my surprise when in cross, he admitted that he just put in guesstimates for times, even though the time was listed down to the seconds, for example, 8:03:14. So the notes looked good but were not accurate because the officer fiddled with them.
It comes down to the credibility of the investigator or expert testifying. If they say that the notes were contemporaneously written and not changed after the fact, then there would be no issues if the witness was viewed as credible within the courtroom. However, if the opposing party can cause doubt, then issues could arise.
Rob:
With Forensic Notes, the investigator can edit notes, but the original note is saved as a previous version for disclosure purposes. To adhere to ISO 17025 requirements and other standards, we will also be requesting that the investigator provide a reason for any changes made. In addition, each note is Digitally Signed and Timestamped by an independent timestamping authority which clearly shows when a note was saved.
Rob:
Do you feel these features safeguard investigators from having issues in court with electronic notes if their credibility is less than perfect?
Jonathan:
Yes. Objective proof is always advisable. It allows for the officer to have his/her final notes in the best form, without the need to explain edits as they are fully shown.
Rob:
If an investigator is not using specifically designed software, like Forensic Notes, what can they do to create electronic notes properly?
Jonathan:
The investigator would then use OneNote or any other program but then the credibility of the officer is very important as we need to believe the officer when he/she says the notes are accurate. With handwritten notes, we can see alterations. Not so with electronic notes that permit edits without an audit trail.
Rob:
What are your thoughts on people using Word, OneNote or Excel to record and capture notes?
Jonathan:
See my comment above. I have not had issues with OneNote (except for noted exception) but that is because the officers I have worked with have generally earned a reputation for being trustworthy. When using electronic notes, we should not put all of our eggs in the “credibility basket.” We should also be satisfied objectively that the notes are sound. Again, objective proof is important.
Rob:
What are your thoughts on investigators who say that you should not put too much into your notes as too many details give the opposing party more information to question you while on the stand?
Jonathan:
I have heard that myth for over 30 years. For expert reports too. The more detailed notes and expert reports are, the fewer questions there typically are since the document gives most of the answers. I would rather know as much as possible from the notes and expert report. It is not appropriate to reveal new and exciting stuff on the witness stand. Surprises often result in a trial being adjourned for disclosure issues or for the evidence of the witness to suffer greatly.
Rob:
What should you include in your notes?
Jonathan:
Drafting notes requires thoughtful consideration. The goal with notes is for them to properly reflect the work of the investigator, assist the investigator on the stand, and be of assistance to counsel.
Some investigators espouse a view that the less they include, the less they will be questioned on. That has not been my experience. I have found that comprehensive notes generally result in more focussed questioning rather than a shotgun approach. That benefits all in the process.
I have also seen notes that are overdone.
It is not necessary to put every warrant, photo, document, etc. in notes. Notes should not be a dumping ground for whatever the investigator comes across or does.
Use some judgment when determining what is needed to properly document your work. Just because you can put something in your notes doesn’t mean it has to be included.
600 pages of notes are not necessarily better than a carefully considered 200 pages.
Thoughtful consideration is required as to what should be included, with the caveat that being informative and helpful are the key.
Helpful Tip
Comparing court testimony to an open-book exam is a great analogy to consider when preparing your notes. Include everything in your notes you may need during your testimony but don’t include information outside of the scope of the investigation.
Including non-relevant data in your notes will make it more difficult to find an answer quickly. This is especially true when you are under pressure or feeling flustered on the stand.
Final Thoughts
Rob:
Any last comments?
Jonathan:
Depending on their integrity and quality, investigator notes can be either integral to successful testimony or a tool used to discredit both the witness and the investigation.
In my opinion, Forensic Notes has been designed to foster professional notetaking.
After all, the focus of the trial should be on the search for the truth, not whether the witness’s notes are up to snuff.
Using a tool such as Forensic Notes will help to ensure that we can focus on issues of importance and not get sidetracked on problematic notes.
Forensic Notes have been designed to help the user (and therefore the investigation) succeed.
