Contemporaneous Notes

In my practice, I spend a lot of time guiding or assessing investigations. It is important to always bear in mind that when conducting an investigation, the investigator should consider how their work would be viewed if it had to be assessed by a Court or Tribunal. This applies to investigations of misconduct generally, harassment, or anything else. Ultimately, if a decision is challenged, a Court or Tribunal is not only considering the conclusion, but the process. In recent years, it has been confirmed repeatedly that employers have a duty of fairness in the course of an investigation.

When an investigation is contemplated, employers must remember that the purpose is to determine what happened. It is an investigation, and not a prosecution. All of the evidence will be assessed; this includes documentary evidence, and evidence given by witnesses. With respect to the latter, it is critical that there be a clear record of what they said.

When conducting an interview, an investigator must determine how to create a detailed and accurate record of the discussion. In some contexts, a record will be appropriate. That is not always possible or appropriate, however. If no recording will be used, then taking good notes is a must. And the most reliable notes are those taken contemporaneously. Otherwise, they will be subject to the frailties of the interviewer's memory, which will only be exacerbated over time.

"Contemporaneous" notes should be taken during the interview. Notes should be written throughout the discussion, with the note-taker writing down questions and answers as they are spoken. They can be typed if that is more efficient.

Contemporaneous Notes should not be changed without an extremely compelling reason. "Corrections" to fix spelling or grammatical issues, or to make the notes more legible, are acceptable but the original version of the notes should be kept in case there is any issue regarding the nature of any changes that were made. Other than fixing such issues, notes of an interview should not be changed. Doing so will raise serious concerns regarding the accuracy of the notes and the legitimacy of any conclusion reached by the investigator.

Modifying contemporaneous notes would be an example of witness impeachment. The prior statement, which in this context would be the original notes, could be put to the witness, who would then have to explain the change. If the original notes do not exist, then the cross-examiner would have to assess the physical or digital notebook and look for any evidence of tampering.

That is a difficult question, as there are so many tools for taking notes, and many ways for "changing" the date and time of a document. Some applications will allow you to see a history of changes. In some cases, we could have a forensic analysis of the document performed, which could reveal changes and the timing thereof.

Contemporaneous notes of an interview in the course of an investigation are a crucial piece of evidence, particularly when there is some dispute over what was said. A good practice is to take notes during the interview and then have the witness review and sign them before they leave, confirming their accuracy. It will then be hard for the witness to change their story later. However, the interviewer should also not change their evidence after the original contemporaneous notes have been made. They can always be supplemented, but should not be changed in any way that would change their meaning.