Update - Volume 13, Number 7, 2000

Tips for Medical Professionals Called as Witnesses

By Victor I. Vieth¹

Given the nature of the crime, medical professionals are often called as witnesses in cases of child abuse.  Although the stress of testifying cannot be eliminated completely, medical professionals can make the process less painful by adhering to the following tips.

Before the subpoena

Medical professionals can lessen the chance of testifying by building a sound case that is more difficult for defense counsel to challenge.  First, physicians should provide "accurate, detailed, and legible documentation of their findings..."²  A detailed report signals your thoroughness to the defense attorney and will make it more difficult for her to cross-examine you.  On the contrary, a report with holes will make you an easy target.  In one case, a physician testified that the sexual assault victim was crying and otherwise visibly upset as she described being attacked.  On cross-examination, the defense attorney pointed out that the physician did not mention these facts in her report.  The defense attorney then solicited from the doctor the number of sexual assault examinations she conducts in a given month and the fact that nearly a year had passed since the examination in this case.  The insinuation, of course, was that this careless doctor could have been mistaken in her description of the victim's emotions.   The defense attorney would not have been able to score these points if the physician had prepared a more detailed report.

Second, physicians should make liberal use of consultants.  Using a consultant notifies the jury of the extreme care taken in reaching a diagnosis of child abuse.   If you are in a small, rural community you may want to take advantage of software that will enable you to link to other medical professionals and to forward colposcope photos or other documents to a consulting physician.

Third, physicians who work regularly with child abuse victims should function as part of a multi-disciplinary team.  This will enable you to get acquainted with your community's law enforcement officers, social workers, and prosecutors and to make sure that efforts are not duplicative.  Even in small, rural communities, effective MDT's can be developed.³

After the subpoena

In preparing to testify, the medical professional may wish to consider the following six tips.  First, know what type of witness you are.  A medical professional may testify as a lay witness, an expert witness, or both A lay witness testifies as to facts he or she observed.  When a doctor describes the victim's demeanor, for example, the medical professional is testifying as a lay witness.  An expert is someone who as a result of training or experience can render opinions or otherwise educate the jury.  When a medical professional testifies that a child's injuries are consistent or inconsistent with the history provided, expert testimony is being provided.

Second, know what court you will be testifying in.  If you are testifying in a civil child protection action, for example, the purpose of the proceeding is to protect the child.  The prosecutor may only have to establish that a child was abused and not identify a particular perpetrator.  A civil action is likely to be tried only to a judge and the courtroom may be closed to outsiders.  If the judge is knowledgeable about medical issues, you may have to explain less than would be the case in a jury trial.   The proceeding may also be more relaxed.  As one commentator notes, the medical professional's "first step is to define the reason for going (to court)"⁴

Third, know your case file.  Understand going into the proceeding that a good defense attorney may have spent hours reviewing the medical records in a given case and is prepared to ask you hard questions.  To meet the challenge, the witness must be equally well-versed with these records.  As noted by other commentators, "nothing will relieve the anxiety of the expert witness more than a thorough review of all existing documents, medical records, radiographs, and pertinent medical literature.   The witness who is ill prepared will be easily foiled by an opposing counsel who is prepared."⁵

Fourth, know the prosecutor.  There is nothing unethical about meeting with the prosecutor and discussing your testimony in advance of trial.  As noted by another commentator, "face to face conferences between attorneys and expert witnesses are always desirable, and rarely impossible."⁶  If new to the process of testifying in court, you may want to ask the prosecutor if there is another trial coming up in which medical testimony will be offered and if you can sit in on the trial to get a feel of what the process will be like.

Fifth, know opposing counsel.  If an opposing counsel or investigator contacts you, it may be wise to speak with these representatives of the defendant.  If not, opposing counsel will attack you as an advocate for the prosecution as opposed to an advocate for justice.  If you speak with one of these representatives, promptly follow up the conversation with a letter documenting what was said in the conversation.   Close the letter by writing "if you feel I have inaccurately summarized our conversation or have left out anything or importance to this  case, please let me know immediately."

If the other attorney has never contacted you, it may be wise to call or write the defense counsel and ask if he has any questions for you.  This may give you a sense of the attorney's demeanor and may give the defense attorney first hand knowledge of your expertise and, to this end, may make a plea more likely.  Many defense attorneys will be put on edge by your decision to contact them and will feel you must have a great deal of confidence in your diagnosis.  More importantly, this initiative, if communicated to the jury, makes you look like less of an advocate and more like a professional interested in finding the truth.

Sixth, know the defense expert.  Don't be afraid to cal the defense expert who has been hired to debunk your diagnosis.  Again, this shows you are not a hired gun but are interested in finding out the truth.  If there is a chance you have erred, you sincerely want to know this.  If the defense expert refuses to talk to you, write him or her a letter expressing your desire to consult and your reasons for doing so.  The prosecutor may be able to use this information to show your reasonableness as well as the unreasonableness of the opposing expert.  If the other expert does speak with you, promptly write the expert a letter summarizing your conversation and asking him or her to clarify or correct any misunderstanding you may have of the expert's position.  If the defense expert testifies contrary to the information provided to you in the conversation, you and your letter may be used to impeach the expert's testimony.

When testifying

When the battle is engaged, the testifying medical professional may benefit from the following tips. First, know what your credentials are so that you can sell yourself to the jury.  It is true that, "generally, physicians and other licensed or certified health care professionals have sufficient training and experience to express a medical opinion to help the judge or jury understand the medical aspects of the case.   Therefore, in most situations, an individual with a medical degree will qualify as an expert witness."⁷  However, the weight given a physician's testimony may be determined by factors such as experience.⁸  Some defense experts may have an impressive list of publications and other academic credentials but no longer practice medicine.  If the victim is a child and you have ongoing experience in diagnosing and treating children, this fact alone may distinguish you from the opposing expert.  When the prosecutor asks you about your experience in treating injured children, be ready to give an answer.  Does your clinic keep records of how many patients you see in a given year and, or these, how many are children?  If not, you may wish to develop this sort of record keeping.  You may also wish to keep track of the child abuse-related conferences you attend and journals you subscribe to in an effort to keep current in the field.

Second, use language a lay person can understand.  The average educational level of jurors is eighth grade.  You must testify accordingly.  Think of how you explain to patients, including children, the condition of their bodies.  Employ these same tactics when explaining your diagnosis of child abuse to the jury.  As one commentator notes, "the very tools used by physicians in the office and classroom to simplify understanding are of value in the courtroom."⁹

Third, paint a "word picture" for the jury.  Think of methods to describe medical conditions or phenomena in a manner the jury can understand.  One pediatrician likens a child's brain to a bowl of covered Jello.  As the bowl is shaken, the Jello cracks and, if it continues to be shaken, turns into liquid.  This is what happens to a baby's brain when it is shaken.  I had a case where a doctor was explaining about the injuries he found on a child's buttocks.  The defendant claimed the bruises occurred because the child was constipated and sat for a long time on the toilet.  I asked the doctor to explain why the defendant's explanation could not account for the child's injuries.  Turing to the jury, the doctor said, "if you have sat on a toilet, you know that when you leave the bathroom you do not have bruises, much less the pattern of bruises this child has.  The buttocks are natural shock absorbers, they can receive some impact and not leave a bruise.  That's why we sit on our butts for a long time and not get injuries."  This was an explanation the jury could understand because the witness likened it to the juror's own everyday experiences.

Fourth, don't go out on a limb.  It is difficult, for example, to diagnose child sexual abuse simply by looking at the child's injuries.  History is the critical component.¹⁰  Examiners "usually cannot 'tell by looking' whether sexual molestation has or has not occurred.   The history from the child remains the most important factor in making that determination..."¹¹

Fifth, make liberal use of exhibits and demonstrations to illustrate your testimony.  We live in a media age in which jurors are used to ten-second sound bites complete with color and moving pictures.  When presenting complex testimony, it is important to use exhibits or other tools to make the point clear for the jury.  A simple diagram of female genitalia can be invaluable in explaining the location, size and pattern of vaginal injuries.  Charts and models may also be more effective than simply showing the jury graphic photos of vaginal tearing.  Many companies sell slides or other materials that can be used by medical professionals when testifying.

When using exhibits or demonstrations, make sure the prosecutor is aware of what you will be doing at the trial.  The prosecutor will likely want to alert the judge as to the material or models you will be using.  The prosecutor can also alert you as to case law in your jurisdiction that may inhibit the use of some models.

Before developing any exhibits, visit the courtroom you will be testifying in.  Find out how close you will be sitting form the jury.   This will help in determining the size of the charts or models you will be using.  In addition, find out the technological capabilities of the courtroom.  If there is no screen or other convenient mechanism to display imagery, it may not be wise to bring slides or computer graphics to the courtroom.

Conclusion

The stress of testifying can never be eliminated.  However, this stress can be greatly reduced when a medical professional properly documents the case and devotes time before and while on the witness stand to maximize the opportunity to achieve justice.

¹ Director, APRI's National Center for Prosecution of Child Abuse
² Charles Felzen Johnson, The Use of Charts and Models to Facilitate a Physician's Testimony in Court, 4 CHILD MALTREATMENT 228 (1999).
³ See Victor I. Vieth, In My Neighbor's House:   A Proposal to Address Child Abuse in Rural American, 22 HAMLINE LAW REVIEW 143 (1998).
⁴ Ludwig & Barton, The Physician's Role in Court in CHILD ABUSE:  A MEDICAL REFERENCE:  SECOND EDITION 441 (EDS. LUDWIG AND KORNBERG 1992).
⁵Id.at 443.
⁶ John E.B. Myers, Medicolegal Aspects of Child Abuse, in MEDICAL DIAGNOSIS AND MANAGEMENT 440 (REECE ED 1994) (citations omitted).
⁷ MONTELEONE & BRODEUR, CHILD MALTREATMENT SECOND EDITION 597 (1998).
⁸ Id.
⁹ Johnson, supra note 2 at 229.
¹⁰ See generally, Adams & Wells, Normal Versus Abnormal Genital Findings in Children:  How Well Do Examiners Agree?, 17 CHILD ABUSE AND NEGLECT 663 (1993).
¹¹ Id. at 673.