Use of Notes by a Witness During Interrogation: Where Is the Boundary Between Personal Memories and Someone Else’s Script

The issue of using written materials during interrogation increasingly arises in criminal proceedings related to public procurement, economic crimes, official activities, and other complex categories of cases.

Such proceedings often concern events that occurred several years ago and involve a significant volume of documents, contracts, financial calculations, and official correspondence. Under these conditions, it is natural for a witness to need to recall certain circumstances. At the same time, the process must ensure that the testimony remains the result of the witness's personal perception, not a reproduction of information of unknown origin.

The practical significance of this issue lies in the fact that even formally admissible evidence may lose its persuasiveness if there are reasonable doubts about the manner in which it was formed. That is why modern judicial practice increasingly pays attention not only to the formal admissibility of evidence but also to the quality of the procedure for obtaining and examining it.

What the Criminal Procedure Code Says

The Criminal Procedure Code of Ukraine does not contain a direct prohibition on the use of written notes by a witness during interrogation. At the same time, procedural law assumes that evidence consists of factual data obtained in the manner prescribed by law, and the court must examine evidence directly.

According to Article 23 of the CPC of Ukraine, the court examines evidence directly, and the testimony of participants in criminal proceedings is obtained during the court session. According to Article 94 of the CPC, no evidence has predetermined force, and the court evaluates each piece of evidence in terms of relevance, admissibility, reliability, and sufficiency in conjunction with other evidence.

Therefore, the use of notes cannot automatically mean the inadmissibility of testimony. At the same time, the court must establish whether the notes only help restore the witness's memory or actually replace their personal recollections. If the source of such notes is unknown or they contain information whose origin cannot be verified, this may affect the assessment of the testimony's reliability.

Equally important is the adversarial principle enshrined in Article 22 of the CPC. Each party must have the opportunity to question the witness about the content of the notes, clarify who prepared them, when they were created, from what sources the information contained therein originates, and why the witness uses them during interrogation. Only under such conditions is the effective realisation of the right to defence ensured.

ECtHR Standards: Not Only the Form but Also the Quality of the Evidentiary Procedure Matters

The European Court of Human Rights adopts a comprehensive approach to this issue. Its practice is based on the principle that it is necessary to assess the fairness of criminal proceedings as a whole, rather than focusing on individual pieces of evidence.

In the decision Jaupi v. Albania, the Court noted that the fairness of a trial depends not only on the opportunity to question a witness but also on the circumstances under which the testimony is formed, the source of the information provided by the witness, and the existence of procedural guarantees allowing for verification of its reliability.

In the case Ayetullah Ay v. Türkiye, the ECtHR emphasised that when assessing the fairness of criminal proceedings, the court must consider the quality of the evidence. This includes whether the defence had the opportunity to challenge its authenticity and object to its use, and whether the circumstances of obtaining the evidence raise doubts about its reliability or accuracy. The Court also stressed that the burden of proof lies with the prosecution, and any doubts must be interpreted in favour of the accused.

Particular importance is attached to the Grand Chamber's decision in Schatschaschwili v. Germany, which formulated the general approach to assessing the fairness of criminal proceedings. The Court emphasised that even individual procedural shortcomings do not automatically constitute a violation of Article 6 of the Convention. It is necessary to evaluate the entire trial process, taking into account whether the defence had a real opportunity to challenge the evidence and whether compensatory procedural guarantees existed.

Why the Origin of Notes Is Crucial

The mere fact of using written notes does not indicate that a witness is providing false information. However, if their authorship or origin remains unknown, there is a risk that the witness is actually reproducing information formed by other persons, rather than their own memories.

That is why the court must clarify who prepared the relevant notes, when they were created, for what purposes they were used, and whether they reflect the witness's own perception. If such circumstances remain unverifiable, this does not necessarily lead to the inadmissibility of testimony but certainly affects its evidentiary value.

At the same time, it is important that the defence has the opportunity to examine such notes, question the witness about their content, and express objections. Such a procedural opportunity ensures the realisation of the principle of equality of arms and complies with the standards of Article 6 of the Convention.

Is Court Intervention Sufficient?

In cases where doubts arise during an interrogation about a witness's use of written materials, the court should not limit itself to merely acknowledging their existence.

An appropriate procedural response involves establishing the origin of the notes, clarifying the purpose of their use, ensuring the parties have the opportunity to ask relevant questions, examining the notes, and allowing objections to be raised. Only after these steps can the court assess the evidentiary value of the testimony in conjunction with other materials from the criminal proceedings.

This approach balances two important goals of criminal procedure. On the one hand, it accounts for the objective features of human memory and the complexity of certain criminal proceedings. On the other hand, it guarantees that testimony remains the result of the witness's personal perception, rather than a reproduction of information whose reliability cannot be verified.

Thus, the current criminal procedural legislation of Ukraine does not establish an automatic prohibition on a witness's use of written notes during interrogation. The decisive factor is not merely the use of notes, but compliance with procedural guarantees that ensure the possibility to verify their origin, question the witness accordingly, and evaluate the testimony in connection with other evidence.

Additionally read — verification of the origin and completeness of evidence: how to protect the principle of equality of arms.

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