View from the witness box: Testifying in court

A medical professional working in the child abuse and neglect field may be asked to appear in court as an expert witness for either the defence or the prosecution. This can be time-consuming, stressful, and disruptive to a regular practice. However, medical expertise is often critical to a case and helps the court understand current research and knowledge.

Preparing for court

If you are required to testify in court about a child abuse or neglect case, there are many steps you can take to ensure that the experience goes smoothly.

Dictate a full medical report at the outset. When you see a patient for the first time and you think the case may eventually require court testimony, you should promptly dictate a full report. The final report should be typed and dated. It should include the following:

• Who asked you to see the child.
• The length of time that you spent with the child and family. 
• Who was present during the history and physical exam.
• The history, word for word, including who said what. 
• The results of your examination. 
• Your diagnosis and how you arrived at it. 
• Your recommendations.

Keep detailed, accurate medical records. Many cases take a year or more to reach the courtroom and you may have little independent recollection of the case after that length of time. This makes your medical records critical. Ensure that all records are complete, clear, and legible, with all dates and times listed. Document all statements verbatim. Describe all injuries in detail.

Prepare to testify.[1] Some problems can be avoided with adequate preparation.

• Attend an interview with the lawyer who has called you to testify. This is essential. The lawyer can then tell you which questions he or she will be asking and advise you regarding the need for additional materials.
• Be careful what you take into the courtroom, as lawyers may ask to see anything that you bring. 
• Have an up-to-date CV and know what is in it. 
• If asked to do so, bring relevant articles to court. Know the field so that your testimony can reflect generally accepted medical facts. 
• Review the case in detail before going to court and also review any previous testimony that you have given on the matter. 
• Prepare visual aids if possible. People remember 80% of what they see and only 15% of what they hear. Visual presentations have much more impact. 
• Dress appropriately.

Your testimony

When you are called to take the stand, you will usually need to be approved as an expert witness. You should be prepared to answer any questions about your CV. It is important to be organized and to show that you have qualifications and experience in the specific area of interest. Mention all recent conferences you have attended and any previous court appearances you have made. Either side in the case may question you about your qualifications.

After your qualifications are discussed, the lawyer who called you will introduce the medical evidence or refer to medical evidence already presented. You may then be cross-examined about your testimony. Often this part of the case is stressful. Remember you are not there to take sides but to objectively present the medical evidence. In a court case, many different types of evidence are collected. You are there to address only the medical aspects of the case.

The role of the expert witness is one of considerable responsibility. You should see the court experience as an opportunity to educate the judge and/or jury. Your portrayal of the medical facts should be thorough and impartial.

Keep the following in mind while testifying:

• Stay in your area of expertise. Remember you are there to help the court understand complex issues.
• Keep your testimony balanced and accurate. You should give both points of view on a matter if they exist.
• Any statement you make in court should be of the same quality and reflect the same scholarship it would if you were making the statement at a scientific seminar or publishing it in a reputable journal.[2] 
• If you don’t know the answer to a question, don’t guess. Consider your answers carefully. Think before you speak.
• If you don’t understand the question, say so. 
• Provide answers only to the questions you are asked.
• Use language and terms that will be understood by the judge and/or jury.
• Speak up, speak clearly, speak simply. 
• Be polite and serious. Do not be argumentative. 
• Never say never or always. 
• Always tell the truth.

Whether you are testifying at the request of the defence or the prosecution, your testimony should be the same.

Irresponsible testimony by medical experts is a growing problem. Types of irresponsible testimony include the “expert” witness who lacks proper qualifications, the use of unique or very unusual interpretations of medical findings,[3] the flagrant misquoting of medical journals, the making of false statements, and the deliberate omission of pertinent facts. You may be asked to refute testimony by such an irresponsible expert.

As a physician providing medical evidence, you are not in court to win the case; that is up to the lawyers. Your role is to present scientific theory and knowledge clearly and in an impartial manner.[4]

Competing interests
None declared.

Jean Hlady, MD, FRCPC

Dr Hlady is director of the Child Protection Service Unit at BC’s Children’s Hospital, a clinical professor in the UBC Department of Pediatrics, and was a member of the Child Multi-disciplinary Team, British Columbia’s Children’s Commission 1996–2002.