Unit.B.2.6. Forensic Expert Witness

[Unit.A.2.6.] [Unit.B.2.6.] [Unit.C.2.6.] [Unit.D.2.6.] [Unit.E.2.6.]

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"A nurse practicing in today's society is at increased risk for appearing in a court of law as a witness-either as a defendant, a plaintiff, a factual witness, or as an expert witness (Feutz, 1988). One reason for this is that today's society tends to approach problems solving through the legal system" (Leech Hofland, 1990, p. 212).

"A nurse needs to realize that cases are often won or lost on, not on the points of medicine or the law, but on the credibility of the parties involved" (Brooten, 1988, cited in Leech Hofland, 1990, p. 212).

"Educate Your Lawyer- Lawyers are not health experts. To win a case, the health professional must be an active participant, rather than assuming the lawyer will take care of everything (Halley, 1988; cited in Leech" Hofland, 1990, p. 212).

"Questioning your memory - As most malpractice cases don't come to trial until long after the incident that led to the suit, one cross-examination technique is to attack a nurse's ability to recall events that may be several years old" (Mandell, 1993, p. 22).

"Asking leading questions - questions that suggest their own answers - aren't allowed in direct examination, but are permitted in cross-examination" (Mandell, 1993, p. 22).

"Inconsistent statements- The plainiff's attorney may try to uncover inconsistencies between your trial testimony and statements you made during your deposition" (Mandell, 1993, p. 23).

"Trying to show that you're biased - The plainiff's attorney may try to show that your testimony is clouded by a bias in favor of the hospital or physicians" (Mandell, 1993, p. 23).

"The rehearsed answers' tactic- One of the oldest tricks in the book is for the plainiff's attorney to try to demonstrate that you rehearsed your testimony" (Mandell, 1993, p. 23).

"Showering you with kindness- Plainiff's attorneys are generally very polite to nurse witnesses" (Mandell, 1993, p. 23).

"Your advantage - The key advantage that you have over your attorney is that you know more about nursing and patient care than he does" (Mandell, 1993, p. 24).

Focus Points Reference

Leech Hofland, S.A. (1990). Testifying in court: How to develop credibility with the jury. Clinical Nurse Specialist, 4 (4), 212-216.

• Note the reference to 'when a witness has the right to address the judge' and 'Consider your appearance' (Leech Hofland, 1990, p. 213).

Mandell, M. S. (1993). The legal side: Surviving destructive crosexamination. American Journal of Nursing, 93 (6), 22-2.

• Note some of the tactics resorted to by lawyers in cross examination to impugn the credibility of a nurse's testimony (Mandell, 1993, p. 22).

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From 'forensic presentations' in the forensic sourcebooks the following presentations have been selected for this unit:

Unit.B.2.6. Forensic Expert Witness

[Unit.A.2.6.] [Unit.B.2.6.] [Unit.C.2.6.] [Unit.D.2.6.] [Unit.E.2.6.]

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This section will continually be added to with guest presentations from forensic experts locally, nationally and internationally and with student presentations.

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From 'forensic cases' in the forensic sourcebooks the following case studies have been selected for this unit

Unit.B.2.6. Forensic Expert Witness

[Unit.A.2.6.] [Unit.B.2.6.] [Unit.C.2.6.] [Unit.D.2.6.] [Unit.E.2.6.]

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From 'forensic experts' in the forensic sourcebooks the following panel of experts has been selected for this unit:

Unit.B.2.6. Forensic Expert Witness

[Unit.A.2.6.] [Unit.B.2.6.] [Unit.C.2.6.] [Unit.D.2.6.] [Unit.E.2.6.]

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Dr. Thomas Dalby

Forensic Psychologist

1. Who can be or (qualify to be) an expert witness?
2. Who are the players in Criminal Court?
3. What is the role of the expert witness?
4. How should I prepare for my testimony?
5. What are some do's and don't in the court room?
6. What are the most common mistakes people make as an expert witness.
7. How can you make this experience fun?
8. How do you prepare to give testimony?

1. Who can be or (qualify to be) an expert witness?

• Courts determine who is qualified to give expert testimony in any given case.
• This status gives the professional some special abilities (e.g. convert information taken from a third party into an opinion) that ordinary witnesses are not afforded.
• Each time a professional is offered by a lawyer as an expert they must be qualified by the judge no matter how many times they have appeared previously.
• The basis of this qualification is usually special training, education, knowledge, skills, experience, etc., possessed by the professional.
• An "expert' is someone who can provide opinion evidence to the court that is not readily accessible by the average lay person, and therefore may be of assistance to the court in rendering a decision.
• Even if the professional is qualified to provide an opinion the court may rule that the information they have come to provide is not outside the realm of "common sense" and will not allow the expert to give opinion evidence.

2. Who are the players in Criminal Court?

• The main participants in the court are: the accused; his/her legal counsel (defense); the Crown Prosecutor; the tier of Fact (judge and /or jury) and witnesses.

3. What is the role of the expert witness?

• The role of the expert witness is primarily of educator. That is the case when providing an opinion on general issues (alcohol or violence) or specifically about the accused the expert is to give information.

4. How should I prepare for my testimony?

• Experts should always know why they are being called to testify and the specific themes and issues that they will be (or may be) called upon to answer. · Preparation begins long before testimony with a thorough understanding e.g. the topic they will speak to as an expert (e.g., memory) or of the clinical case that they have been asked to address.
• Many guidelines for preparation and delivery of expert opinions are available the best of which is "Testifying in Court: Guidelines and Maxims for the Expert Witness" by Stanely L. Brodsky.
• Underlying the appearances in court is good communication with the lawyer who has asked for your attendance.

5. What are some Do's and Don't in the court room?

• Don't
• Don't argue with lawyers.
• Don't lose your cool.
• Don't answer questions outside the bounds of your knowledge.
• Do
• Do be prepared.
• Do make sufficient time in your schedule to allow unhurried participation in court.
• Do speak loudly and clearly.
• Do say "I don't know" when appropriate.

6. What are the most common mistakes professionals make as an expert witness.

• Novice and experienced experts make mistakes on the stand.
• For the novice these include unfamiliarity with the courtroom procedures and the scope of legal issues they are to influence (directly or indirectly).
• Novices lack confidence mostly based on their uncertainty about the environment they are in and they tend to (vastly) overestimate the abilities of lawyers (not all are Perry Mason or Matlock).
• Knowledge of the courtroom allows the expert to exert control over their testimony.
• With control comes confidence.
• Some experienced experts become too complacent with the courtroom and tend not to prepare to the level they should.
• Some experts also tend to believe (in a rather narcissistic vein) that it is they who are most important in the case and they will be deciding the case (wrong!).

7. How can you make this experience fun?

• When you consider the repetitive and unchallenging nature of most professional's daily work, the lively exchange of opinion and viewpoints in the courtroom can be exciting.
• There is never a need to be nervous with a prepared expert.
• Attitude and knowledge allow an expert to enjoy an intellectual exchange (which is rarely unpleasant).

8. How do you prepare to give testimony?

• Testimony Preparation
• Review relevant data, charts and record in detail.
• Interview directly the patient, witness, relatives,
• Alert patient, and others to purpose of the interview.
• Explain that the judge and/or the jury make the final decisions.
• Test appropriately, (IQ, personality, neuropsychology, behavioral assessment).
• Write formal report, then condense into easily carried notes.
• Review pertinent current literature on contested subject.
• Prepare your lawyer.
• Educate council about clinical elements of care.
• Correct unrealistic expectations.
• You prepare the lawyer - they don't prepare you- you let them know of major issues.
• Testimony Checklist
• Recall role of witness: to inform the court
• Clear sufficient time in schedule to permit unhurried participation in proceedings.
• Present testimony clearly, audibly and comprehensively, avoid jargon.
• Attempt to have impressive credentials spelled out and entered into the record.
• Avoid responding to discrediting cross-examination as a personal attack.
• Recall the stages of presentation: direct examination, cross-examination, redirect, recross.
• Anticipate the lawyer's questions - your responses will lay the foundation.
• Be ready for the "what if" situation questions.
• Attend to each specific question and remain within its scope when answering.
• Accept that I don't know is a perfectly appropriate answer when called for.
• Describe data first, interpret meaning and conclusions later.
• Relay information honestly regardless of side of case.
• Delay a moment before answering to permit reflection and objection from counsel.
• State when question cannot be answered.
• Remain alert to context, direction and implications of question.
• Beware of qualifying phrases, metaphors and analogies.
• Dress like you are going to a funeral, and hope it is not your own (black, navy, gray).

Dr. Thomas Dalby/97

Forensic Psychologist
Calgary, Alberta.

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