Legal Issues : Testifying as a Fact Witness
You may be called as a fact witness, that is, required to testify regarding observations, findings, and diagnosis regarding a child you treated. In general, photographs are admissible in court when they help the witness describe the findings. For more information, see: DOCUMENTATION: Photographic Documentation.
To reduce courtroom waiting time, try to work out an arrangement with the attorney to be called when the court is ready for your testimony. Some family courts in New York State allow for virtual testimony. This must be discussed with a representative of the agency that issued the subpoena.
Hearsay Evidence
Hearsay refers to courtroom testimony regarding statements made by another person outside of court. Usually, hearsay is not allowable and is restricted because it is seen as less reliable evidence because the speaker's credibility cannot be assessed, and the speaker cannot be cross-examined. There are exceptions to the hearsay rule, and the law regarding admission of hearsay is complex and interpretations may vary. All exceptions are based on the premise that the statement was made under circumstances that bolster its reliability. That is, the statement was made under a circumstance in which the speaker is less likely to lie.
Medical records indicating disclosures of abuse and medical testimony regarding patient information given as part of a routine or case history are often allowed in court as exceptions to hearsay rules. This can be critical to the prosecution or defense of a case, particularly if the victim does not testify. To allow the medical provider to testify to the excepted hearsay, the medical record should document the child's exact words (in quotes) as well as the exact words the medical provider used with the child prior to their statement.
Be prepared to testify to information regarding pertinent medical records including:
- Statements in quotes were made in the ordinary course of business and at the time of the evaluation
- The documentation is consistent with routinely followed procedures
- How and where records are maintained and who has access to them
Statements for Purpose of Medical Diagnosis and Treatment
The hearsay exception presumes that a person seeking medical care and treatment understands that telling the medical provider the truth is in their best interest. This exception is particularly useful in child abuse cases. However, only information relevant to the diagnosis and treatment will be allowed.
Be prepared to testify that the child/adolescent understood that they were seeing you for a medical evaluation.
Because testimony under this exception is limited to information relevant to diagnosis and treatment, many courts will not allow the medical provider to testify to the child/adolescent's statements regarding the identity of the alleged perpetrator. If you document and can explain why identity of the alleged perpetrator is related to the child/ adolescent's medical treatment, the likelihood for admitting this testimony is increased. For example, an Emergency Department physician may need to know the identity of the alleged perpetrator to facilitate safe discharge of the patient. An alleged perpetrator with known or suspected diseases or infections may have influenced your medical decision making in terms of tests offered to the child/adolescent. While most courts will not allow this testimony, be prepared to offer it.
Excited Utterance or Spontaneous Disclosure
to be more reliable under the hearsay exception. In addition to requirements that the event must be shocking and uncommon, the statement must be made about the event and during a timeframe when the speaker is still under the influence of the event. This statement is called a spontaneous utterance.
Traditionally, this exception was applied only to statements immediately following the event, for example to a witness at the scene or to Emergency Department personnel directly after the event. Increasingly, however, this exception is being applied to statements made much later but while the speaker is still under the influence of the event.
Courts may allow statements made months or years after the assault because the characteristics of a child's response to sexual abuse frequently include a delayed disclosure.
Statements may be made to you that meet the requirements of the excited utterance exception. Document the specific words the child/adolescent used, and that the child/adolescent was in an excited state.
