Just learned that our officers who take notarized witness statements and confessions do not keep notary books to log the signer's signature. Could that come back to bite us if a defendant denies that he signed the statement?

Notaries have to be bonded, and it might be a violation of their insurance agreement and their oath as a notary, not to keep a log (see Tx. Gov't Code 406.014). Advise them to comply with their rules from now on. As an evidentiary matter, you can always call the notary as a witness (assuming it's different from the arresting officer - and for many reasons, it should be, IMHO) and also get their booking information if done around the same time. You can also compare handwriting if necessary to prove who wrote a statement.

I may have missed something, but I see no legal requirement for a defendant's statement in 38.22 to be notarized, just that it comply with the warnings. I'm not saying it couldn't be notarized, but that if the lack of compliance with notary statutes becomes an issue, it should be an irrelevant one. Ditto for witness statements and 38.23 - just because a statement purported to be "notarized" doesn't mean it was legally required to be, so the argument that a notary wasn't in compliance with the law shouldn't have any bearing on whether the statement itself is admissible.

That is, of course, unless you are trying to prosecute for statements made "under oath" - in which case the validity of the notary (and the legality of the notary's actions) could be a fact issue.

Are the officers actually notaries or just administering an oath as peace officers? The Government Code section that authorizes them to administer oaths doesn't require that any kind of notary book be kept, any more than a judge has to have a notary book for search warrant affidavits he swears in. A notary book is something required for notaries, not for all swearing of affidavits.

Amen, sister.

I think you articulated it Andrea.

Thanks, Andrea - I was thinking in terms of notaries only and completely missed the obvious.

They are notaries. The issue would be an attack on an officer's credibility for failure to comply with the law herself.

As long as they were "notarizing" the statements as part of their official duties, then point out that they were following the law -- just the law regarding police officers as opposed to notaries.

I agree with Andrea's opinion, and merely write this concurring post to point out that you might talk to a notary about the log books--last time I had something notarized, the notary told me their regulations had been streamlined and many former recordkeeping requirements had been relaxed.

Notary Publics are only one of several categories of individual that can administer an oath under Government Code ch. 602. Magistrates can administer oaths; do they have to keep a log like a notary does under the terms of Chapter 402?

Janette A

The log requirement is specific to notaries. However, if another officer administers the Oath, he or she had better be able to identify his or her own legitimate signature. If they have a lousy memory, a log is one possibility. But it's not required.