MODULE 9 Prevention through Documentation Project

1. MODULE 9Prevention through Documentation Project Report Writing and Testifying in Court CONTRIBUTORS: Vincent Iacopino, MD, PhD, Physicians for Human Rights Alejandro Moreno, MD, JD, Boston Center for Refugee Health and Human Rights Uwe Jacobs PhD, Survivors International Kathleen Allden, MD, Indochinese Psychiatric Clinic PtD Project (IRCT, HRFT, REDRESS, PHR)

2. Module 9 Outline • Written reports • General Considerations • Content • Conclusions • Guidelines for Medical Evaluations of Torture and Ill Treatment (Istanbul Protocol, Annex IV) • Inconsistencies • Providing testimony in court • Court testimony guidelines and maxims • Mock Judicial Proceeding PtD Project (IRCT, HRFT, REDRESS, PHR)

3. Written Reports • Purpose: • Document evidence of torture and ill treatment and effectively communicate this evidence to adjudicators • Provide expert opinions on degree to which his/her findings correlate with individual’s allegation of abuse • Each written report and oral testimony represents opportunity for clinicians to educate adjudicators on physical, psychological evidence of torture PtD Project (IRCT, HRFT, REDRESS, PHR)

4. Written Reports • Contexts for medial reports/testimony: • Prosecution in national or international courts of alleged perpetrators • Claims for reparation • Challenging credibility of statements extracted by torture • Identifying need for further care and treatment • Identifying national and regional practices of torture in human rights investigations • Support of allegations of torture in asylum applications PtD Project (IRCT, HRFT, REDRESS, PHR)

5. Written Reports • Considerations for written reports: • Conducted with objectivity and impartiality • Do not over-interpret the findings and thus diminish quality of evidence • Define medical terminology, no jargon • Clinicians should • have specific training in forensic documentation of torture and other forms of physical and psychological abuse • have knowledge of local prison conditions and torture methods • review all relevant materials • not include in written reports or oral testimony any opinion(s) that cannot be defended under oath or during cross-examination • Any discrepancies should be pursued to point of clarity PtD Project (IRCT, HRFT, REDRESS, PHR)

6. Written Reports • Considerations for written reports: • Physical and psychological evaluations of alleged torture victims may provide important confirmatory evidence of torture. However, absence of such physical evidence does not suggest that torture did not occur as such acts of violence against persons frequently leave no marks or permanent scars • Historical information such as descriptions of torture devices, body positions and methods of restraint, descriptions of acute and chronic wounds and disabilities, and identifying information about perpetrators and the place(s) of detention very useful in corroborating applicant’s allegations of torture. PtD Project (IRCT, HRFT, REDRESS, PHR)

7. Written Reports • Considerations for written reports: • In clinician’s interpretation of findings, he/she should relate various categories of evidence, i.e., physical and psychological evidence of torture, and historical information as well. • Effective written reports and oral testimony require accurate and effective communication skills • Quality of any testimony, whether written or oral, can only be as good as the interview and examination that was conducted PtD Project (IRCT, HRFT, REDRESS, PHR)

8. Content of Written Reports • The examiner should • Document physical and psychological evidence of injury and abuse • Correlate degree of consistency between examination findings and specific allegations of abuse by patient • Correlate degree of consistency between individual examination findings with knowledge of torture methods used in a particular region and common after-effects • Render expert interpretation of findings of medical-legal evaluations and provide expert opinion regarding possible causes of abuse in court hearings, criminal trials and civil proceedings • Use information obtained in appropriate manner to enhance fact finding and further documentation of torture PtD Project (IRCT, HRFT, REDRESS, PHR)

9. Content of Written Reports • Medical expert qualifications: • List educational and professional qualifications • Highlight prior experience examining survivors of torture and trauma and any experience working with individuals who suffer from common psychological symptoms such as PTSD and Major Depression • Participation in training and seminars related to torture survivors • Attach a copy of curriculum vitae • May be helpful to refer to clinician’s application of Istanbul Protocol standards in his or her medical evaluation • Source of case referral and reason for the evaluation • Note whether the evaluation was conducted on a pro bono basis • List of any background documents read beforehand if required PtD Project (IRCT, HRFT, REDRESS, PHR)

10. Content of Written Reports • Generally a written report contains: • Account of event(s) as described in Module 3 • Description by individual of his or her physical and psychological symptoms and signs at the time of alleged ill-treatment, and account of how symptoms evolved with or without medical treatment • Description of individual’s physical and mental health at time of interview(s) andhow they have changed with treatment. • Note of any medical treatment in detention, or any treatment that was requested but denied • Account of the physical and psychological findings frominterview(s) • Professional opinion on likely causes of findings, discussing other relevant possible causes attributed to torture • Summary and conclusions of overall evaluation • Any relevant recommendations for additional tests, consultations, and/or need for treatment services. PtD Project (IRCT, HRFT, REDRESS, PHR)

11. Content of Written Reports • Some trial attorneys and judges have objected to affidavits in which medical professionals recite information provided by the alleged torture victim to the professional • Clinician should be careful to state only that individual “states” or “reports” that a specific incident occurred PtD Project (IRCT, HRFT, REDRESS, PHR)

12. Content of Written Reports • Written reports should comment on: • Emotional state of person during interview • Symptoms, history of detention and torture, and personal and family history prior to torture • Factors such as the onset of specific symptoms in relation to the trauma, the specificity of any particular psychological findings, as well as patterns of psychological functioning • Additional factors such as forced migration, resettlement, difficulties of acculturation, language problems, loss of home, family, social status, as well as unemployment • If formal psychiatric diagnosis is given, reasons should be explained PtD Project (IRCT, HRFT, REDRESS, PHR)

13. Content of Written Reports • Conclusion:opinion on extent to which all sources of medical evidence corroborate individual’s specific allegation of torture and ill treatment • Additional sources of information may include: • Copies of previous court decisions about individual • Correspondence from other health professionals to whom patient has been referred • Country-specific information on torture and ill treatment practices • Account of event(s) as described by the individual • Notes on individual’s description of his or her physical and mental health • Records of psychological and physical findings from the interview(s) • Results of any clinical investigations • Recommendations for further treatment PtD Project (IRCT, HRFT, REDRESS, PHR)

14. Guidelines for Medical Reports PtD Project (IRCT, HRFT, REDRESS, PHR) 1. Relevant case information 2. Clinician’s qualifications 3. Statement regarding veracity of testimony 4. Background information 5. Allegations of torture and ill treatment 6. Physical symptoms and disabilities 7. Physical examination 8. Psychological history/examination 9. Photographs

15. Guidelines for Medical Reports PtD Project (IRCT, HRFT, REDRESS, PHR) 10. Diagnostic test results 11. Consultations 12. Interpretation of physical and psychological findings 13. Conclusions and recommendations 14. Statement of truthfulness (for judicial testimonies) 15. Statement of restrictions on the medical evaluation/investigation (for subjects in custody) 16. Clinician’s signature, date, place 17. Relevant appendices

16. Inconsistencies • Torture survivors may have difficulties recalling and recounting specific details of their torture experience(s) because of: • Factors directly related to torture experience • Factors related to psychological impact of torture • Cultural factors • Factors related to interview conditions or barriers of communication • Inconsistencies that are attributable to an individual’s torture experience may, in fact, support an individuals allegations of abuse, rather than undermine it • It is extremely important for clinicians to clarify all inconsistencies prior to report writing or testifying in court PtD Project (IRCT, HRFT, REDRESS, PHR)

17. Testifying in Court • Purpose: Present oral material that has been submitted in written report and respond to questions from lawyers and adjudicators • Clinicians should: • Anticipate challenges to his/her testimony • Bring all relevant sources of evidence to court • To extent possible, educate court about physical and/or psychological evidence of torture • Proceedings usually include: • Certifying the clinician as an expert witness • Direct examination by the alleged victim’s attorney • Cross-examination by the opposing attorney • “Redirect” questions by the alleged victim’s attorney PtD Project (IRCT, HRFT, REDRESS, PHR)

18. Testifying in Court • Possible responses to challenges regarding clinician’s cross-cultural knowledge: • Expertise that he/she has with respect to culture in question • Cross-cultural research on psychological trauma and symptomatology indicating valid application of, for example, PTSD criteria across cultures • Skills in clinical listening and assessment which allow exploration of cross-cultural experience without being a specialist in particular culture • Common sense and face value components of the assessment process. (i.e. marked emotional distress on recounting the alleged torture and ill treatment) PtD Project (IRCT, HRFT, REDRESS, PHR)

19. Testifying in Court • Providing opinions on an individual’s credibility: • Finding of credibility is a legal matter; responsibility of the judge • Expert witness is one resource that judge draws upon to make determination • Clinician need not feel compulsion to make that determination for the judge, and, indeed, judges may resent an expert who tries to do so • Clinician should respond to attorney’s and the judge’s questions on credibility as thoroughly and professionally as possible and let judge arrive at his/her own conclusion PtD Project (IRCT, HRFT, REDRESS, PHR)

20. Testifying in Court • Some general guidelines for oral testimony • Do not “react” to provocative statements • Clarify questions that you do not understand before providing an answer • Answer questions directly and succinctly. However, take the opportunity, when available, to editorialize and educate • Do not offer opinions on subjects about which you are not qualified to comment • Speak clearly, slowly, and make eye contact with whomever you are speaking. • See Stanley Brodsky’s Testifying in Court: Guidelines and Maxims for the Expert Witness; and The Expert Witness: More Maxims and Guidelines for Testifying in Court. PtD Project (IRCT, HRFT, REDRESS, PHR)

21. Mock Judicial Proceeding • Group Activity: “testifying in court” using evaluation findings from Modules 7 and 8. • Students should use their written findings as the basis for their expert testimony. • Ideally, each student should have an opportunity to practice testifying on their medical evaluation findings for at least one case. • One or more students should assume the role of the medical expert and one or more students should assume the role on a cross-examining lawyer (or prosecutor/judge). PtD Project (IRCT, HRFT, REDRESS, PHR)

22. Mock Judicial Proceeding • Consider the following questions for the “cross-examining lawyer”: • Describe your qualifications as a clinician, in general, and as an expert on the psysical and psychological evidence of torture. • Were you paid to conduct this evaluation? • Did the attorney you are working with prepare you for this court hearing? • Describe your primary findings (physical and psychological). • What are the possible causes of the findings you described? Are there other possibilities? PtD Project (IRCT, HRFT, REDRESS, PHR)

23. Mock Judicial Proceeding • Consider the following questions for the “cross-examining lawyer:” • Is it possible that the physical injuries were self-inflicted, by another inmate, or in the course of a struggle with police/security forces.? • Is it possible that other traumatic experience which happened before or after the alleged torture are the cause of the detainees psychological symptoms? • Was a proper chain of custody maintained for the collection of evidence? • What are your conclusions regarding the detainee’s allegations of torture and ill treatment? PtD Project (IRCT, HRFT, REDRESS, PHR)

24. Mock Judicial Proceeding • Consider the following questions for the “cross-examining lawyer:” • Did you find the detainee credible? Why or why not? • Were there any inconsistencies observed in your evaluation? How do you explain these? • How do you know that the detainee is not faking the symptoms that he/she alleges? • Do you have any additional recommendations? PtD Project (IRCT, HRFT, REDRESS, PHR)