...And Nothing But the Truth MDTs and Medical Expert Witnesses: Collaborating for Justice

1. ...And Nothing But the TruthMDTs and Medical Expert Witnesses: Collaborating for Justice Roger A. Canaff, Senior Attorney APRI, NCPCA Alexandria, Virginia

2. SANE and Physician Based Examiner Programs: A Great Advance • Why Forensic Examiner Programs? • Comfort and Care. • Consistent and Competent Evidence Collection. • Expert Testimony on Human Anatomy and Tissue. • Forensic Examiners and MDTs. • FE’s have an Appropriate but Limited Role! • NEUTRALITY is EVERYTHING.

3. The Basics- What to Keep in Mind • Forensic Medicine leads to court- it’s an eventuality, not a possibility. • Forensic witnesses may be fact, expert or both. • All duties of the forensic medical professional must be conducted with an eye toward the legal process. • Proper collection, documentation. • No interest in the outcome of the case.

4. Forensic Examiners-What you are from the legal perspective • Experts in the area of physical, sexual assault/abuse. • Unbiased, scientific examiners whose job it is to make forensic evaluations about human anatomy/tissue and report on them neutrally. • Confident experienced professionals with nothing to gain or lose from any particular case.

5. Forensic Examiners- What you are not from the legal perspective • Law enforcement officers, or individuals who are in any way answerable to or responsible to any law enforcement agency. • Victim Advocates in any way except to provide care and comfort (within the nursing role) to victims of sexual assault.

6. Medical Experts and MDTs • Medical Experts can be a part of the MDT, but should have a unique role. • Provide feedback to the team. • HIV prophylaxis. • STD prevention. • Emergency contraception. • Address patient concerns, legal concerns from the hospital standpoint (HIPAA, etc.) • Medical experts should not get caught up in the ‘get the bastard’ routine!

7. Protocol, Documentation, Chain of Custody • Read, know and live protocol! • Documentation. • Be familiar, complete meticulously. • Quote rather than paraphrase information. • Leave nothing to question. • Chain of Custody. • Are there C of C guidelines in protocol? • Document everything in adherence to guidelines.

8. Statements- Patient to Examiner • Statements made to medical personnel are often very important in trial- must be recorded verbatim. • How the statement is documented by the medical provider influences whether the statement will be admissible. • Record not only the words, but surrounding details as well.

9. Excited Utterance “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Federal Rule of Evidence 803(2)

10. Establishing An Excited Utterance • Was this a ‘startling event?’ • How much time has elapsed between the event and the statement? • How will you document the “excited” state? • Consider “rekindled excitement” if applicable.

11. Present Sense Impression “A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” Federal Rule of Evidence 803(1)

12. Statements for Medical Diagnosis “Statements made for the purposes of medical diagnosis or treatment and describing medical history, or past and present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Federal Rule of Evidence 803(4)

13. Medical Diagnosis • Statement comes in because of the presumed desire to tell doctors and medical providers the truth. • Must know that person hearing the statement is a medical professional- how are you dressed, how do you introduce yourself?

14. State of Mind “A statement of the declarant’s then existing state of mind, emotion, sensation, of physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) but not including a statement of memory or belief to prove the fact remembered or believed.” Federal Rule of Evidence 803(3)

15. What the Forensic Professional Should Expect As a Witness • Courtesy and respect from lawyers. • Meet personally with experts prior to trial. • Explain process and expert’s role- frame questions and ask for help in anticipating issues. • Keep lines of communication open to minimize intrusion on time. • Help experts prepare for cross, legal challenges to anticipated testimony.

16. What is Expected of the Forensic Medical Witness • Candid, neutral and scientifically based opinions on the evidence. • Communicate early and often • Experts determines limits of science. Lawyer determines limits of the law. • Never testify ‘cold’. Eliminate surprises. • Confident, composed testimony in court. • Preparation above all. • Speak to the jury, help them understand the medical evidence. Work with the lawyer to get the truth across.

17. Pretrial Duties- Continued • Speaking to the Prosecutor • in most cases, FEs are prosecution witnesses. • prosecutors have the most knowledge of and faith in FE methodology, even when reports are normal. • FE evidence is usually relevant when there are physical findings, but not always.

18. Pretrial Duties- Continued • Speaking to the Prosecutor- Pretrial Contact. • prosecutor should contact FE either prior to or at the time of the issuance of the subpoena, or before to discuss the case. • If subpoena has gone out but no effort at contact is made, FE should call the prosecutor who subpoenaed her. • No expert should testify ‘cold’. • It is not inappropriate or biased to reach out to a lawyer who has sub’d you.

19. Pretrial Contact with Prosecutor • Educate the Prosecutor • go over the entire exam • explain exam methodology • help the prosecutor anticipate the issues • define anatomical terms, and the equipment used • colposcope, Woods Lamp, Toludine Blue, etc. • Tanner stages, ano-genital anatomy • Prosecutor must be comfortable with the terms!

20. Pretrial Contact w/ Defense Attorney • Never abdicate the duty to speak to a defense attorney if asked. • Expert testimony can be stricken if witness refuses to speak to opposing counsel • As an unbiased, expert witness, you have a duty to discuss your anticipated opinion with both attorneys on the case • Remember, you could be called by the prosecution, the defense, or both

21. The Expert and the Lawyer- Interviewing Ground Rules • Experts meet in person • your work is serious, you should be taken seriously. DNA, Ballistics experts meet in person. • Experts meet on their turf • arrange for meetings at your offices, hospital, etc. • Make sure that the meeting place and time are comfortable and familiar to you.

22. Interviewing Ground Rules- Cont. • Experts meet formally • meetings with attorneys should be prepared for, and supervised if necessary. • Experts meet once* • Do not agree to fragmented interviews, where the lawyer wants ‘some information now and maybe some later’.

23. General Interviewing Tips • Don’t agree to telephone interviews. • Be aware of the word choices you make in describing findings. • NEVER assume that you are ‘off the record’ with an attorney. • Let the rules apply to both prosecution and defense- relax them when trust is earned. • Stand firm on unfair interviewing tactics.

24. Trial Preparation • Practice saying the medical terms you’ll be using! • If you have a tongue for medical terminology, great. If not- PRACTICE. • Address Errors BEFORE trial. • Your responsibility is to the lawyer who subpoenaed you. • Keep lines of communication open, even night before trial. • Dress conservatively- remember the stereotypes and don’t play into them!

25. Practice Reciting CV and Credentials • gets you used to hearing your voice in the courtroom. • Impresses the jury right off with your grasp of your own professional background. • Bolsters your confidence as you hear yourself recite your hard work and training.

26. Testifying Tips • Kill Them With Kindness • don’t be defensive, no matter what • pleasant, professional manner in the face of rude/rabid questioning makes you shine • Two standard attacks: • (For nurses) You’re ‘just’ a nurse • You’re a cop in disguise

27. Other Points to Consider • Explaining the Absence of Findings May Be More Important than Explaining Findings! • Non-genital trauma can be more important- don’t overlook marks, redness, swelling, ANYTHING on the body.

28. General Considerations • FEs are NOT legal advocates. • Best way to assure that justice is done is to let the evidence (including your expert opinion) speak for itself. • Remember the transcript! • Never lose your cool, even when justified.