Welcome to the IAFN SAFE TA Webinar: Effective and Ethical Court Testimony SAFETA Best Practice Webinar Series EFFECTIVE AND ETHICAL COURT TESTIMONY The audio portion of this meeting is being delivered over the telephone, you will need to dial the following phone number: 800 275 6556 and use VD86875 as your verbal entry code. IAFN requests that you e mail the names of any non registered attendees who may be sharing this webinar experience with you so we can track attendance. Please send additional attendee names to INFO@IAFN.ORGtoday. Thank you in advance for your help and cooperation! This project was supported by Grant No. 2011 TA AX K021 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this presentation are those of the authors and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women. Jennifer Long Director Jenifer Markowitz Medical Advisor 1 2 1
This project was supported by Grant No. 2009-TA-AX-K024 awarded by the U.S. Department of Justice, Office on Violence Against Women (OVW). The opinions, findings, conclusions, and recommendations expressed in this presentation are those of the author(s) and do not necessarily reflect the views of OVW. WHAT IS A PROSECUTOR? The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. WHAT IS A PROSECUTOR? as such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. 2
WHAT IS A PROSECUTOR? He may prosecute with earnestness and vigor indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one Berger v. U.S., 295 U.S. 78, 88 (1935) MAINTAINING A DEFENSIBLE PRACTICE WHAT IS A DEFENSIBLE PRACTICE? One that is supported by clinical experience, current research, and accepted practice standards. 3
KEY ASPECTS OF A DEFENSIBLE PRACTICE HOW DO YOU KNOW WHAT YOU KNOW? What is the foundation for your clinical knowledge? How do you explain your knowledge base? WHY DO YOU DO WHAT YOU DO? Understand why you are doing what you are doing and how it fits within your scope of practice. Falling back on protocol or routine is an insufficient response. 4
KNOW THE STANDARDS Know the practice standards, protocols, and guidelines that inform your practice. Be familiar with your state nurse practice act and how your own practice falls within its bounds. OWN THE FULL PATIENT ENCOUNTER The medical-forensic exam begins at triage and ends when the patient is discharged. Picking and choosing the aspects of the patient encounter you want to be involved with may leave you vulnerable. DON T PRACTICE IN A VACUUM A quality assurance (QA) process that involves another trained individual [medical doctor (MD) or nurse)] reviewing all of your charts and photos with identified benchmarks is critical. There is no way of knowing you are meeting the basic needs of the patient or performing the skills of the role competently if your practice isn t scrutinized. 5
EMBRACE EVALUATION Part of professional nursing practice is being evaluated on your practice (according to the American Nurses Association). If you are a forensic nurse, you must be evaluated specifically in that role; it should be annual and documented. BELONG TO YOUR ORGANIZATION PROVIDING EVIDENCE-BASED, ETHICAL TESTIMONY 6
SCIENTIFIC LIMITS What does the science tell us? Evidence base: what do we know and what has been proven? How do our ethical obligations define our role in court? 1. MAINTAIN CURRENCY What can you do to make sure your practice and/or knowledge base is as current as possible? Read peer-reviewed journals (e.g. Journal of Forensic Nursing). Engage in continuing education Network with colleagues. Engage in peer review/qa/quality improvement (QI). 2. ANALYZE SCIENTIFIC SOURCES What are the scientific sources you use and are they: Current with the state of the science? Scientifically sound? Generally accepted as reliable among the profession (e.g. adequate sample size; reproducible results)? 7
3. KNOW YOUR LIMITS Know your limits and consider how they will impact your testimony: Think about what you can comfortably say and what you may not be comfortable saying (and convey that on prep with the subpoenaing attorney). Can you back up your opinions with the science and/or your clinical experience? Don t rush to expert testimony: allow yourself the experience of fact witness testimony. If the subpoenaing attorney wants to qualify you as an expert and you have concerns, share them during pretrial preparation. 4. TESTIFY TRUTHFULLY Acknowledge errors in your record or gaps in your knowledge. Do not make things up; If you don t know, I don t know is the only appropriate response. Refrain from speculation. Ensure that any statistics you are using are accurate. 5. TESTIFY OBJECTIVELY But don t forget to testify as a clinician, because, evidence collection or no, that s what you are. And don t allow anyone to pressure you into providing testimony you don t agree with or are uncomfortable with. It s your job to help judges and juries understand what you know, not to make anyone s case. 8
6. REMEMBER: TESTIMONY IS FOREVER Prior testimony can be used to impeach you on the stand. Evolving opinions (opinions that have changed based on emerging science or clinical experience), are explainable and underscore your currency as an expert. Revolving opinions (opinions that change based on who you re testifying for) will weaken your effectiveness as an expert. PREPARING TO BE A WITNESS BEFORE YOU GET TO COURT There are things you can do to prepare yourself as an effective witness: Review your medical record if you re testifying as the treating clinician. Create/update your curricula vitae (CV) and make sure the subpoenaing lawyer has it and has reviewed it with you. Know what information is out there about you: you will be Googled. 9
YOUR ONLINE PRESENCE Many people have an online presence: the Internet is a treasure trove of information about you. Once it s out there, it s tough to remove. Google yourself and see what comes up: quotes in articles, handouts from talks, your program s website. Many attorneys now conduct Internet searches of all witnesses. YOUR ONLINE PRESENCE Facebook, LinkedIn--what do your pages say about you (and is it something you want heard in court)? Blogs and other sites like Flickr and Twitter provide open access to people looking for information. RULES FOR SOCIAL NETWORKING Don t comment on a patient ever. Aside from the breach of ethics and potential Health Insurance Portability and Accountability Act (HIPAA) violations, many institutions also have social networking policies that also forbid this. 10
RULES FOR SOCIAL NETWORKING Don t comment on any aspect of a trial in which you are/were a witness your testimony, the attorneys, the judge or courtroom staff, the jury or people viewing the trial. RULES FOR SOCIAL NETWORKING Assume everything you write is public. Online privacy is relative. Don t put anything online you wouldn t want to be cross-examined on. RULES FOR SOCIAL NETWORKING Remember: getting something permanently removed from the internet is extremely difficult. You may have deleted the post or the picture, but somewhere out there is a cached version of it, and it can be found. 11
RULES FOR SOCIAL NETWORKING If you are a program manager, consider a social networking policy, or explore your parent organization s policy and train staff on it regularly. RULES FOR SOCIAL NETWORKING If you have any questions about your use of social networking, please refer to the National Council of State Boards of Nursing s White Paper: A Nurse s Guide to the Use of Social Media. Available at https://www.ncsbn.org/social_media.pd f PRETRIAL PREPARATION 12
PREPARING FOR TESTIMONY Ensure that you know who is subpoenaing you, what type of case it is (criminal vs. civil), when the case will be tried, and where you need to go. PREPARING FOR TESTIMONY Contact the subpoenaing attorney to arrange time for pretrial prep. Ideally this will be done in person, but even phone prep can be useful if that is the only option. PREPARING FOR TESTIMONY Review your record. It is critical to be familiar with the record prior to taking the stand. If photos will be part of the testimony, make sure that they are organized for trial so that it s easy for you to identify injury and anatomy. 13
PREPARING FOR TESTIMONY Know what counsel wants from your testimony. What can you teach the judge or jury in this case? Are you able to testify to what counsel wants? Will you be testifying as a fact or expert witness (or both)? COURT BASICS Arrive early. Dress as if you are going to a job interview: suit, closed toed shoes, conservative makeup and nails, minimal jewelry. Bring something to do: you will be waiting. 14
IT IS YOUR JOB TO EDUCATE THE JUDGE/JURY/PANEL MEMBERS. TESTIMONY ISSUES Problem areas: Inability to define basic terms. Inability to articulate clinical decisionmaking. Straying from science or experience. If you re giving an opinion, it must be supported by current and credible research OR by sufficient clinical experience. VULNERABILITY Some areas of vulnerability simply shouldn t be: Attire. Knowledge of case and medical record. Refusal to talk to opposing counsel. Inappropriate comments or interactions. 15
THE BEST TESTIMONY IS Plainly worded. Simple. Concise. Peer reviewed. Jennifer Gentile Long Director 2001 S Street NW, Suite 500 Washington, DC 20009 P: (202) 558 0029 C: (202) 596 4223 F: (202) 393 1918 jlong@aequitasresource.org www.aequitasresource.org Jenifer Markowitz Medical Advisor 2001 S Street NW, Suite 500 Washington, DC 20009 P: (202) 596 4224 F: (202) 393 1918 jmarkowitz@aequitasresource.org www.aequitasresource.org 16