Module 9: Report Writing and Testifying in Court

Module 9 Answers

  1. Answer: A, B, C, E, F

    Expert medical reports and testimony can be of value in all of the contexts listed with the exception of D. As the Istanbul Protocol makes clear, a medical evaluation does not exclude the possibility that the alleged torture took place. Medical evaluations should not be used to “prove” that law enforcement officials, or any other alleged perpetrator, is innocent of alleged acts or torture and ill treatment.

  2. Answer: A

    The purpose of written reports and oral testimony is to assess claims, document evidence of torture and ill-treatment, and effectively communicate this evidence to adjudicators. Clinical evaluations are often critical in enabling adjudicators to make accurate and just decisions in medico-legal cases by providing an assessment of the degree of consistency between allegations of torture and ill treatment and physical and psychological evidence.

  3. Answer: F

    All of the items listed may represent relevant qualifications.

  4. Answer: A

    Qualifying as a medical expert depends on relevant knowledge and skills for both physical and psychological evidence of torture. Physicians who are not psychiatrists may qualify as experts on psychological evidence of torture and ill treatment as symptoms of depression and anxiety are common in general populations and many primary care physicians can acquire the knowledge and skills to diagnose these conditions and initiate appropriate care. The diagnosis of trauma-related disorders such as PTSD requires more specific training and experience for all clinicians, including psychiatrists, psychologists and clinical social workers.

  5. Answer: B

    The evaluating clinician should review the alleged victim’s affidavit (declaration) and any relevant medical or legal materials that the alleged torture victim has presented to the court, as it generally includes information that may be compared with the clinician’s evaluation. Any discrepancies that may arise should be pursued with the individual and/or the individual’s attorney to a point of clarity. Adjudicators often interpret inconsistent testimony as a lack of credibility on behalf of the alleged torture victim, when, in fact, such inconsistencies are often related to the presence of psychological, cultural, linguistic or other factors.

  6. Answer: E

    All of the items listed are true.

  7. Answer: E

    All sources of information listed above can and should be used to corroborate allegations of torture and ill treatment as long as the medical evaluator deems them to be relevant and credible.

  8. Answer: A

    Adjudicators are often unaware of the complexities of effective documentation of torture and ill treatment and their decisions may be influenced by pre-existing prejudice. Clinicians can and should take the opportunity to educate adjudicators on physical and psychological evidence of torture and ill treatment, i.e. explaining likely causes of inconsistencies, the sensitivity and specificity of physical findings and diagnostic tests, the utility and limitations of psychological instruments and diagnoses, the significance of historical evidence, etc.

  9. Answer: A

    First evaluations may be less convincing in a court of law than those conducted by clinicians with extensive experience. It is therefore advisable to conduct one’s first evaluation(s) under the supervision or of a more experienced evaluator.

  10. Answer: A

    Historical information may be very useful in corroborating an individual’s allegations of torture because it indicates first-hand knowledge of the alleged experience.

  11. Answer: B

    Istanbul Protocol guidelines include recommendations for care when they are clinically indicated. This is a professional duty independent of the immediate objectives of the legal team.

  12. Answer: A

    The clinician’s interpretation of findings and conclusions on the possibility of torture and ill treatment should be based on all categories of corroborating evidence, including physical and psychological evidence, historical information, and any other relevant resource materials.

  13. Answer: F

    All of the considerations listed support the credibility of an individual’s allegations or torture and ill treatment and, if relevant, may be included in the clinician’s written reports and oral testimony. Note that inconsistencies that are attributable to an individual’s torture experience may, in fact, support an individual’s allegations of abuse, rather than undermine it.

  14. Answer: B

    Credibility is not an all-or-nothing concept – there is a continuum between the absolute truth and the complete fabrication of events, with at least three points in-between: a) a mixture of falsehood and truth; b) conscious or subconscious exaggeration – saying that the ill-treatment was more frequent and more severe than actually happened; and c) genuine errors arising from mistakes and misunderstandings. Clinicians should try to identify potential reasons for exaggeration or fabrication, keeping in mind that fabrications may require detailed knowledge about trauma-related symptoms and findings that individuals rarely possess.

  15. Answer: H

    Inconsistencies may result from a number of factors that may be directly related to the torture and ill treatment or to the psychological and/or neurological symptoms that result from torture and ill treatment. Interview conditions and cross cultural factors may be significant factors as well. Clinicians should be familiar with such factors to effectively explain any inconsistencies observed.

  16. Answer: A

    Adjudicators and cross-examining attorneys may dismiss the medical expert’s findings on the basis of “hear-say” evidence, i.e. that the medical expert is stating a fact that was simply reported to him or her. A statement qualifying the veracity of testimony is therefore advisable.

  17. Answer: B

    While PTSD and MDD are common among survivors of torture, the diagnosis of either one is not cause-specific. Experiences other than torture and ill treatment also may be the cause of these diagnoses or sub-threshold symptoms.

  18. Answer: E

    All of the guidelines listed are relevant considerations for oral testimony by medical experts.

  19. Answer: E

    It is common in medico-legal contexts for the clinician to be asked whether psychological symptoms were caused by the alleged torture and ill-treatment or other traumatic experiences that may have occurred before or after the alleged events. Clinicians should note temporal relationships between the onset of symptoms and the alleged torture and ill-treatment and subsequent trends in psychological symptoms in relation to external stressors. They should also consider content-specific symptoms that may relate to the alleged torture and ill-treatment such as: the content of nightmares, triggers for intrusive recollection, reliving experiences, and avoidance reactions.

  20. Answer: B

    In court, the finding of credibility is a legal matter that is the responsibility of the judge. The expert witness is one resource that the judge draws upon to make that determination. The clinician need not feel the compulsion to make that determination for the judge, and, indeed, judges may resent an expert who tries to do so. What the clinician can do is address any observed inconsistencies and answer the questions of the attorneys and the judge as thoroughly and professionally as possible, along with his/her opinion about credibility, and let the judge arrive at his/her own conclusion.

Written Reports

General Considerations

The purpose of written reports and oral testimony is to assess claims, document evidence of torture and ill-treatment, and effectively communicate this evidence to adjudicators. The purpose is not to “prove” or “disprove” the individual’s allegations of abuse. The health professional provides expert opinions on the degree to which the his/her findings correlate with the individual’s allegation of abuse. Clinical evaluations are often critical in enabling adjudicators to make accurate and just decisions in medico-legal cases. In addition, each written report and oral testimony represents an opportunity for clinicians to educate adjudicators on physical and psychological evidence of torture.

Expert medical reports and testimony can be of value in an number of different contexts:

  • The prosecution in national or international courts of perpetrators alleged to be responsible for torture
  • Claims for reparation
  • Challenging the credibility of statements extracted by torture
  • Identifying the need for further care and treatment
  • Identifying national and regional practices of torture in human rights investigations
  • Support of allegations of torture in asylum applications.

Medico-legal (or forensic) evaluations should be conducted with objectivity and impartiality, and this should be reflected in written reports and testimony. The evaluations should be based on clinical expertise and professional experience. As mentioned in Module 2, the ethical obligation of beneficence demands uncompromising accuracy and impartiality in order to establish and maintain professional credibility. When gathering information to prepare a report, it is important not to over-interpret the findings and so diminish the quality of the evidence. That is to say, however sympathetic the health professional may be to the individual, the report or certificate should not say more than can be supported by the evidence and the level of competence of the report writer to interpret it, or the case might be undermined.

Clinicians who conduct evaluations of alleged torture victims should have specific essential training in forensic documentation of torture and other forms of physical and psychological abuse. They should also have knowledge of prison conditions and torture methods used in the particular region where the individual was imprisoned and the common after-effects of torture. The written reports and oral testimony should be factual and carefully worded. Jargon should be avoided. All medical terminology should be defined so that it is understandable to lay persons. Many words have a specific meaning in medico-legal reports that differ from their use in everyday speech, such as ‘history’ or ‘laceration’. It may be necessary to append a glossary to the report, so that readers do not misinterpret some of the words by applying their everyday definitions.

The clinician should review the declaration (testimony) and any relevant medical or legal materials that the alleged torture victim has presented to the court, as it generally includes information that may be compared with the clinician’s evaluation. Any discrepancies that may arise should be pursued with the individual and/or the individual’s attorney to a point of clarity. Adjudicators often interpret inconsistent testimony as a lack of credibility on behalf of the alleged torture victim, when, in fact, such inconsistencies are often related to the presence of psychological, cultural, linguistic or other factors.

Effective written reports and oral testimony not only require knowledge of torture and its after-effects, but they also require accurate and effective communication skills. Such skills are not typically part of clinical training. Written reports and oral testimony of clinicians should not include any opinion(s) that cannot be defended under oath or during cross-examination. Furthermore, the quality of any testimony, whether written or oral, can only be as good as the interview and examination conducted.

Physical and psychological evaluations of alleged torture victims may provide important confirmatory evidence that a person was tortured. However, the absence of such physical evidence should not be construed to suggest that torture did not occur, since such acts of violence against persons frequently leave no marks or permanent scars. Historical information such as descriptions of torture devices, body positions and methods of restraint, descriptions of acute and chronic wounds and disabilities, and identifying information about perpetrators and the place(s) of detention may be very useful in corroborating an individual’s allegations of torture. In the clinician’s interpretation of findings, he/she should relate various categories of evidence, i.e., physical and psychological evidence of torture, and historical information as well

Providing Testimony in Court

The main purpose of appearing in court is to present orally the material that has been submitted in the written report and to respond to questions from lawyers and adjucators. A judge may admit a written report into evidence without the health professional appearing in court personally. However, the judge may give the report limited weight or even refuse to accept the written document if the health professional does not appear in court because there is no opportunity for cross examination. For this reason, and because the oral testimony can more strongly substantiate the consistency with the clinician’s own testimony, it is preferable for the clinician to appear in court personally.

The tone and style of the hearing may vary considerably depending on the case, the judge, and the lawyers involved in the case. It is best for the health professional to be prepared for a challenging and even adversarial attitude, although this may not be the case. Prior to the court date, the individual’s attorney should arrange a meeting with the assessor to discuss the clinician’s testimony and to review the specific questions that the attorney might ask.

The clinician should bring to court all of the evidence that has been used in the affidavit, such as diagnostic imaging films, laboratory test reports, photographs and neuropsychological assessment reports.

Once in court, the first step is certifying the clinician as an expert witness. An expert witness is someone who, by virtue of knowledge, training, education, or experience, qualifies to offer expert testimony with regard to a particular subject area. Often, this certification will be a fairly simple process, with the clinician’s curriculum vitae serving as the basis for expertise. On other occasions, the judge or cross-examining attorney may challenge the clinician’s expertise. They may ask about the clinician’s specific area of expertise (e.g., torture, trauma, psychology, diagnosis). It is helpful to have considered this in advance with the attorney of the alleged victim and to arrive at a definition of expertise consistent with the clinician’s background and the needs of the case. Experience in assessing and working with trauma victims of any kind is, for example, relevant background.

The clinician’s testimony usually consists of a period of direct examination by the alleged victim’s attorney, during which time the clinician’s findings are presented, followed by cross-examination by the opposing attorney, and subsequent redirected questioning by the alleged victim’s attorney. Court proceedings may very considerably. In some cases, the judge will interject his/her own questions at any point in the proceeding. Sometimes there will be very little questioning from the judge and cross-examining attorney, and sometimes there will be very extensive questioning. Questions may take the form of information-seeking, and the attorney may present the clinician with the opportunity to educate the court about physical and/or psychological evidence of torture, as well as about this particular individual’s case.

Questions may also take the form of challenges to the clinician’s findings or the basis for those findings. One line of questioning commonly taken is: “How do you know what happened to the alleged victim? Do you have first hand knowledge? Aren’t you simply reporting what the alleged victim told you?” This question provides the clinician with an excellent opportunity to educate the court about the sources of his/her knowledge, including all of the components which go into the evaluation of physical and psychological evidence and the relevance of any additional historical information, including consistency of symptomatology with that seen in other traumatised patients and with commonly accepted professional standards such as the DSM-IV or ICD-10 and other diagnostic criteria. It may also be helpful to refer to the clinician’s application of Istanbul Protocol standards in his or her medical evaluation.

Another area of questioning may relate to cross-cultural factors: “What do you know about the respondent’s culture, about his/her country, or about how psychological response to trauma manifests in that culture?” Here, the clinician may refer to the analysis presented earlier concerning cross-cultural factors in assessment. The clinician can mention 1) expertise that he/she has with respect to the culture in question; 2) cross-cultural research on psychological trauma and symptomatology indicating the valid application of, for example, PTSD criteria across cultures; 3) skills in clinical listening and assessment which allow exploration of cross-cultural experience without being a specialist in that particular culture; and 4) common sense and face value components of the assessment process. This last factor should not be underestimated. When an alleged victim breaks into tears, explains how she was raped, nearly suffocated, threatened with death and says she is afraid that this may happen again, one need not be a cross-cultural expert to draw conclusions about her mental status.

In court, the finding of credibility is a legal matter that is the responsibility of the judge. The expert witness is one resource that the judge draws upon to make that determination. The clinician need not feel the compulsion to make that determination for the judge, and, indeed, judges may resent an expert who tries to do so. What the clinician can do is answer the questions of the attorneys and the judge as thoroughly and professionally as possible, along with his/her opinion about credibility, and let the judge arrive at his/her own conclusion. Indeed, there are many other factors in addition to expert testimony that go into the final decision.

Some general guidelines for oral testimony include the following:

  • Do not “react” to provocative statements.
  • Clarify questions that you do not understand before providing an answer.
  • Answer questions directly and succinctly. However, take the opportunity, when available, to editorialize and educate.
  • Do not offer opinions on subjects about which you are not qualified to comment.
  • Speak clearly, slowly, and make eye contact with whomever you are speaking.

Two excellent resources for any clinician preparing to testify in court are Stanley Brodsky’s Testifying in Court: Guidelines and Maxims for the Expert Witness and The Expert Expert Witness: More Maxims and Guidelines for Testifying in Court. Dr. Brodsky prepares the psychological expert for the most aggressive cross-examination of the expert’s credentials and conclusions. Perhaps the most helpful aspect of the books is the presentation of attitudes and appreciation of one’s own credentials as an expert, as well as exact phrasing to counter potential efforts to impeach one’s testimony. Though these guidelines and maxims were developed for psychological experts who testify in the United States, they may apply to other judicial proceedings. See Court Testimony Guidelines and Maxims [1], appended to this Module.

Content of Written Reports

The examiner should be prepared to address the following in his or her written report or affidavit:

  • Assess possible injury and abuse, even in the absence of specific allegations by individuals, law enforcement or judicial officials;
  • Document physical and psychological evidence of injury and abuse;
  • Correlate the degree of consistency between examination findings and specific allegations of abuse by the patient;
  • Correlate the degree of consistency between individual examination findings with the knowledge of torture methods used in a particular region and their common after-effects;
  • Render expert interpretation of the findings of medico-legal evaluations and provide expert opinion regarding possible causes of abuse in court hearings, criminal trials and civil proceedings;
  • Use information obtained in an appropriate manner to enhance fact finding and further documentation of torture.

First, the affidavit should recite the educational and professional qualifications of the medical professional. Prior experience examining survivors of torture and trauma should be highlighted, as should any experience working with individuals who suffer from common psychological symptoms such as PTSD and Major Depression. In addition, the professional’s participation in training (such as this Model Curriculum) and seminars relating to torture survivors should be included. If the professional is working in consultation with, or under the supervision of, other medical professionals or specialists, those professionals should also be listed. If the professional conducted the examination on a pro bono basis, or was referred to the case through a human rights organisation, these facts should be included. A copy of the medical professional’s resume or curriculum vitae (CV) should be attached to the affidavit. Some courts may require that the expert witness list the reason for the interview, who requested it, and a list of any background documents read beforehand.

Generally a written report contains the following components:

  • The account of the event(s) as described by the individual. As explained in Module 3 [1], this should detail events during arrest and conditions of any detention (e.g. prolonged solitary confinement) since these conditions in themselves may produce physical and psychological sequelae. The account should further detail specific events and methods of torture, both physical and psychological, during actual interrogation. If there are internal inconsistencies in the narrative, or if it contradicts testimony given elsewhere (for example, to a legal adviser), this must be explained.
  • A description by the individual of his or her physical and psychological symptoms and signs at the time of alleged ill-treatment, and an account of how these symptoms evolved with or without medical treatment.
  • A description of the individual’s physical and mental health at the time of the interview(s) and, if he or she has been seen over a period of time, how they have changed with treatment and as a consequence of concurrent events.
  • A note of any medical treatment in detention, or any treatment that was requested but denied.
  • An account of the physical and psychological findings from the interview(s). This should include the demeanour at different times of the process (including any contact before and after the interview(s)), the results of any psychological assessments, a detailed account of the physical examination, and the results of any investigations performed.
  • The professional opinion on the likely causes of these findings, discussing other relevant possible causes of those lesions attributed to torture. There should also be a summary, and the conclusions of the overall evaluation. (Note: it is advisable to separate the findings and the opinion into separate sections, as this makes it clear to any court which is which.)
  • Provide any relevant recommendations for additional tests, consultations, and/or the need for treatment services.

Depending on the intended forum, a summary of the findings of other team members could also be needed, or each might need to provide a separate report. Copies of x-rays, photographs or other reports also can be attached to the affidavit where appropriate and available.

Some trial attorneys and judges have objected to affidavits in which medical professionals recite information provided by the alleged torture victim to the professional. It is generally preferable for the medical professional to avoid a detailed recitation of every statement made to him/her by the individual. The individual’s own affidavit in the case will provide those details. Some statements will, of course, need to be included in order to explain the medical professional’s conclusions. To the extent that the professional needs to include this information to explain the basis for his/her conclusions, the professional should be careful to state only that the individual “states” or “reports” that a specific incident occurred. Such an approach is the safest, because, even if the professional believes the individual, the clinician is only reporting “hearsay” information. Failure to use such language has sometimes been used to undermine the credibility of medical affidavits.

When writing reports, health professionals should comment on the emotional state of the person during the interview, symptoms, history of detention and torture, and personal and family history prior to torture. Factors such as the onset of specific symptoms in relation to the trauma, the specificity of any particular psychological findings, as well as patterns of psychological functioning should be noted. Additional factors such as forced migration, resettlement, difficulties of acculturation, language problems, loss of home, family, social status, as well as unemployment should be described. If a formal psychiatric diagnosis is given, the reasons should be explained. See Clinical Interpretation, Module 6 [2], for a more detailed discussion of the interpretation of psychological evidence of torture.

Appendix: Court Testimony Guidelines and Maxims

The following principles or “maxims” are excerpted from two books by Stanley Brodsky that outlines guidelines for expert witness testimony in court. Maxims 1-61 are excerpted from: Brodsky, Stanley L. Testifying in Court: Guidelines and Maxims for the Expert Witness. American Psychological Association, Washington, DC. 1991; pp. 1-208. Maxims 62-104 are excerpted from: Brodsky, Stanley L. The Expert Expert Witness: More Maxims and Guidelines for Testifying in Court. American Psychological Association, Washington, DC. 1999; pp. 1-197.

  1. The Admit – Deny: Handle loaded and half-truth questions by first admitting the true part in a dependent clause and then strongly denying the untrue part in an independent clause.
  2. Advocacy: The “Bought Expert” Accusation: Respond to implications of being a bought expert by showing awareness of the issue and assertively presenting the foundations of your objectivity.
  3. Advocacy: The Pull to Affiliate: Check and recheck that routine pulls toward affiliation are not diminishing the impartiality of the expert role.
  4. Becoming Current: Review current literature on the topic about which you will testify.
  5. Burden of Proof and Degree of Certainty: Burdens of proof and degrees of defined certainty are legal concepts. Do not accept, define, or incorporate them into clinical, psychological, or scientific testimony (unless you really know what you are doing.)
  6. Challenges to Experience: Insufficient Experience: When challenged about insufficient experience, keep track of the true sources of your expertise.
  7. Challenges to Experience: Challenges to Experience: Be prepared to present the bases for generalizability of findings and demographic communalities in your testimony.
  8. The Case Against Experience: Challenges to professional experience should be met with a knowledge of the literature and affirmations of the worth of your own experience.
  9. Changing your Mind: Do not change a professional opinion on the basis of a cross-examination. Your opinions should always arise from your data.
  10. Child Sexual Abuse: Lying and Fantasy: Questions about children’s lying and fantasies should be answered with open acknowledgement of their existence and the ways in which the clinical examination rules them out as causes of the allegations of abuse.
  11. Child Sexual Abuse: Anatomically detailed dolls: In the controversial area of anatomically detailed dolls in the assessment of child sexual abuse, witnesses should know both the criticisms and supporting data, as well as the requisite professional competencies that accompany their use.
  12. Client Dissimulation: Clinic considerations: Challenges about clients faking bad or faking good should be met with affirmative statements of clinical validity, sensitivity, and vigilance for client dissimulation.
  13. Client Dissimulation: Research Considerations: Research on client dissimulation should be known and used in clinical work and testimony. Enough of the research findings are equivocal that caution in evaluations and witness statements are always in order.
  14. Collaborative Criticism: Criticize your field as requested, but be poised and matter-of-fact and look for opportunities to regain control.
  15. Concepts and Definitions: Good definitions are necessary but not sufficient bases for answering fundamental questions. Broader conceptual understanding is needed.
  16. Courtroom as Place Identity: Witnesses often feel like aliens in the courtroom. The solution is to be present often and to develop a sense of place identity.
  17. Credentialing: Facts: Prepare a list of professionally relevant and complete qualifying questions for the attorney to use in the opening of the direct examination.
    1. Education: Where, when, what degrees, specialities, relevant courses, postdegree formal education;
    2. Employment: What positions, what level or rank, what responsibilities, when and for how long, current position;
    3. Licensure or certifications;
    4. Memberships in professional or scientific societies: At what level, for how long, offices held;
    5. Honors, awards, and recognitions;
    6. Publications and presentations: Articles, chapters, books, talks, editorships;
    7. Grants: Subjects of study, source of funding, amount, how long, results;
    8. Skills: From workshops, supervision, postdegree training; Consultantships;
    9. Speciality knowledge: Of what methods, clientele, topics, how acquired;
    10. Experience: What kind, what populations, what role, how relevant to court case.
  18. Credentialing: Challenges: Comfortably agree with accurate challenges to your credentials. Offer narrative explanations only when they are nondefensive and unforced.
  19. Culturally different clients: Culture does affect the assessment of psychopathology. Witnesses should be culture educated while still clearly identifying and affirming the conventional foundations of their testimony.
  20. The direct examination: Meet with the attorney prior to the direct examination and be involved in preparing the questions.
  21. Disaster relief: After a disaster during testimony, correct the error as soon as you can. If you cannot, let it go.
  22. DSM[1] Cautions: Do not be befuddled if you do not know specific DSM cautions. Do affirm the underlying principles of such cautions in which you believe.
  23. Elder abuse and neglect: Testimony about elder abuse calls for a mixture of specific expertise and visible empathy.
  24. Employment discrimination: In equal opportunity cases, plaintiff witnesses need to focus on social context and defense witnesses on objective comparisons.
  25. Examiner Effects: Cross-examinations about examiner effects call for the witness to explain how training and standardized procedures diminish such effects.
  26. Fishing expeditions: When the attorney fishes for ignorance and insecurities, keep your knowledge limits clearly in mind.
  27. Fraternisation during the trial: Neither fraternize nor discuss any element of the case with opposing counsel, other witnesses, clients, or jurors.
  28. Freud as an expert witness: When testifying about something in which you believe, testify in a manner that shows that you believe in it.
  29. The historic hysteric gambit[2]: The historic hysteric gambit is an indication that nothing else has worked for the attorney. Respond with poise, either declining to discuss the historical events or dismissing them as obsolete and not applicable.
  30. How you know what you know: From the earliest stage of legal activity, be certain to have mastered the foundations of your knowledge and role.
  31. Humor: If you are humorous at all on the witness stand, keep it gentle, good-natured, and infrequent.
  32. The idealism hazard: When minimum professional standards are the issue, do not become a visionary advocate of idyllic and rarely attainable services.
  33. Intimidation: When attorneys try to intimidate, respond with controlling answers, proper manners, and clinical reflections.
  34. Just before the court appearance: Explicitly relax or engage in productive work just before your court appearance.
  35. The language of testimony: General principles: Effective language usage comes about when the witness personalizes answers, varies the format, uses narrative well, and produces convincing spoken and transcribed testimony.
    1. Personalize your own testimony
    2. Be wary of the format of your answers
    3. Look for opportunities to give fairly long, narrative answers during cross examinations
    4. Use pronouns purposefully
  36. The language of testimony: Fluent testimony: Gain control of fluency on the witness stand.
    1. Vary the loudness
    2. Speak slowly
    3. Stress syllables
    4. Ease into your breath pattern
  37. The learned treatise gambit: Never accept the learned treatise as expertise unless you are master of it.
  38. The limits of expertise: Agree to be an expert only when genuine expertise is present.
  39. Listening well: Listen with care to the wording of the attorneys’ questions and use this knowledge in the interests of precision and control.
  40. Negative Assertions: When the time is right to disagree with cross-examination questions, do so with strength, clarity, and conviction.
  41. Orientation to the Courtroom: Effective witnesses are familiar with expected trial procedures, interpersonal transactions, and the dynamics of testifying.
  42. Power and Control on the Witness Stand: The Process: Cross-examining attorneys will use substantive and psychological means to gain control over witnesses. Witnesses, in turn, need to be free of such control to perform well and feel good about their testimonies.
  43. Power and Control: Time and the Art of Testifying: Take a breath and explicitly think about questions that require thought.
  44. Power and Control: Gaze and Eye Contact: Look at the jury during narrative answers and avoid being captured in eye contact by the cross-examining attorney.
  45. Power and Control: Personal Space: Make the courtroom environment familiar and create an opportunity for control by sitting tall and owning personal space.
  46. The Primary Source Gambit: If you do not know primary sources, worry not. Instead, stay with current knowledge and clinical conclusions.
  47. Probes for Guilt and Shame: Cross-examination probes for guilt and shame are effective only if you respond with guilt and shame. Stay on-task and nondefensive.
  48. The Professional Witness: Talented professional witnesses can model authoritative expertise for other experts. They are described as:
    1. always interesting to watch and hear;
    2. able to reconfirm statements of their findings from practical experience;
    3. truly abreast of the latest literature;
    4. skilled at neutralizing vicious cross-examination attacks,
    5. composed and relaxed.
  49. Psychotherapists as Expert Witnesses: It is normal for psychotherapists to be reluctant or ambivalent when testifying about their clients. Testimony should include the strengths of the participant-observer role and the extended opportunities to observe their clients.
  50. The Push-Pull: When the cross-examination question is true but is asked in a pushy and negative manner, consider agreeing strongly.
  51. Quiet Moments on the Stand: Quiet times on the stand can be used to observe carefully, stretch personal limits, and incorporate successes.
    1. Anticipate difficult questions
    2. Observe with safety: Unchallenged times on the stand give you a chance to look carefully at courtroom dynamics and processes;
    3. Experiment;
    4. Hold the moment.
  52. The Rumpelstiltskin Principle: Know the names and faces of the attorneys, judge, and other participants in the courtroom events.
  53. Saying “I don’t know”: When you truly do not know, say so.
  54. Scientist Challenges: Both the teeming masses and esteemed scientific standards cross-examinations should be met with a comfortable affirmation of accepted and meaningful standards of practice.
  55. The Star Witness Fantasy: A witness’s self-centeredness about the importance of personal testimony can serve as blinders that interfere with clarity, self-assurance, and nondefensiveness.
  56. Termination of Parental Rights: The heated emotionality of termination of parental rights hearings calls for exceptionally well-prepared and constructive testimony.
  57. Transformative Moments: Key moments can positively and negatively transform the credibility and acceptance of testimony.
  58. The Well-Dressed Witness: Dress for court in clothes that are familiar, comfortable, and professional.
  59. When it is over: Make the last impression a good one.
  60. When your Attorney is Indifferent or Incompetent: With indifferent attorneys, be assertive. With incompetent attorneys, decline the case or educate them.
  61. While Lawyers Fuss: When lawyers fuss, stay uninvolved.
  62. Ziskin & Faust Are Sitting on the Table: The Ziskin and Faust reviews have an adversarial component and consequently may not meet the respected minority test. Nevertheless, they have made us more accountable and that can be acknowledged constructively.
  63. Arbitrary Pigeonholes: Do not allow your reports or testimony to be recast into simple-minded and arbitrary groupings of the attorney’s choice.
  64. Asked and Answered: When the court limits what you can explain, neither panic nor become angry or defensive; rather, testify as confidently as you can within those constraints.
  65. Back to One: Self-critical judgements and zealous attachments to the results distract from effective testimony. Seek to become authentically yourself as a professional and as a witness.
  66. Bulletproofing: The techniques here are not an impenetrable shield for unprepared witnesses. Weaknesses in methodology can and should be exposed by competent probing in the adversarial process.
  67. Confabulations: Never make up answers, keep your answers carefully within the context of what you know and remember, and never automatically reply within attorneys’ frames of reference.
  68. Context: 1. Choosing a Phrase: Keep the context of your assessments and findings as a foreground issue in expert testimony.
  69. Context: 2. Minor Gaps: When minor gaps are questioned, answer matter-of-factly, and in the context of the natures of psychological evaluations and findings of the case.
  70. Daubert Hearings: Under Daubert, professional and scientific experts should be prepared with peer-reviewed research to defend the nature of their theories, principles and methodologies.
  71. Discovery and Discoveries: Never accept attorney condensation, summary, or conclusions as your only working materials. The expert’s responsibility is to review and assess the case personally and professionally.
  72. Ethics in Expert Witness Testimony: Keep your ethical priorities in order. Attending to scientific and professional truths always comes before responsibility to the court, and these court obligations always precede responsibilities to retaining counsel and to protecting one’s self-esteem.
    1. Assume a special responsibility to be fair and accurate;
    2. Avoid partisan distortion or misrepresentation;
    3. Actively disclose all sources of information;
    4. Be prepared to distinguish between one’s own expert testimony and legal issues and facts.
  73. Evasive Responses: Hopeless but Not Serious: In the normal and inevitable moments of feeling pulled toward evasiveness, concentrate carefully, and answer the difficult question.
  74. Experience Does Not Count: Do not defend experience itself as proof of being accurate in forensic conclusions. Instead, report your career experience if asked and address the specific skills and means of reaching your conclusion.
  75. Expert Witness as Master Teacher: Part of being a great witness is to be a great teacher on the witness stand, and being a great teacher is the result of concerted effort.
    1. Dynamic communication. Static presentation of findings leave to the jury and occasionally the judge the burden of making the content meaningful.
    2. Styles of relating on the stand that involve the audience. Some witnesses have the impact of a bag of concrete mix. They need other ingredients to be useful. Ineffective witness-teachers are so wrapped up in themselves and their results that they do not connect with the courtroom audience. Unwrapping one’s knowledge with the pleasure and adventure of unwrapping holiday gifts permits the jury to feel they are part of what is happening.
    3. Clear Communication. It is not necessary to employ the academic tool of using eight elegant words when one clear, simple word will do. If it is not understood, most of the time it will not be accepted. I say ‘most of the time’ because sometimes cases come up in which no juror can truly understand the complexity of the issues.
    4. Authenticity about who you are as a scientist or professional. Witnesses who are bad teachers strain to be something they are not, and find that courtroom pressures misshape them. For all of the above advice about what to do, the overriding rule is to seek ways to be on the witness stand that present you at your natural best.
  76. Floccinaucinihilipilification: Anticipate cross-examination efforts to portray essential elements of your testimony as worthless.
  77. For Better and Worse: Overprepare: As in marriage, personal complacency can keep you from coping effectively with courtroom strife.
  78. Gender Labels: In the difficult moments in which women are patronized on the witness stand, they may gain control by restating their status as doctors without being strident and within the context of the questioning.
  79. Illusory Documentation: Do not construct illusory support for opinions or methods and do not be intimidated by such illusory constructions by attorneys.
  80. Inflammatory Questions: Inflammatory questions are best answered with calm explanations that demonstrate a confident sense of professional competence. Do not heat up on the stand.
  81. Integrity Checks: Challenges to one’s impartiality may be addressed by having calculated (for intrinsic reasons) the percentage of times one’s expert opinions are contrary to those of retaining attorneys.
  82. Internet Vulnerabilities: When confronted with your own fanciful and playful remarks, place them in context as fanciful and playful.
  83. It Would Be So Nice If You Weren’t Here: Whether it indeed would be nicer if one were not on the stand comes powerfully from the sense of shunning imposed by the attorneys and the witness’s own internal self-assessments. Our transient self-judgments in response can be shaped and aided by experience and successes.
  84. Language: It’s a Virus: Listen well: To ward off language viruses, you need to be ‘much, much better’ at discerning meaning of words and phrases.
  85. The Last Word: When the attorney comments on one’s testimony, having the ‘last word’ can empower the witness and reduce a sense of helplessness.
  86. Lawyer Bashing: Avoid anti-lawyer jokes and quips on the witness stand. They are high-risk comments, to be reserved for rare and exactly fitting moments.
  87. Lay Witnesses: Hostile attacks on one’s character are best met with clear affirmations of worth and restatements of the essential issues.
  88. Offensive Language: Flagrantly offensive language never has to be met passively. Options include going to the judge, recording statement, confronting the speaker, consulting with colleagues, withdrawing from the case, or using the information as part of one’s testimony.
  89. Personal Attacks: Scholarly preparation, composure, and negative assertions are preferred responses to personal attacks.
  90. Practice Answers: Maintaining integrity on the stand calls for careful listening, avoidance of anticipatory answers, and staying faithful to your findings and knowledge.
  91. Pulling and the Push-Pull: Pulling in a push-pull exchange is an art that requires non-defensive responding and meaningful practice.
  92. Real and Apparent Ambiguities: Real ambiguities exist in understanding and interpreting behaviours of defendants and litigants. Opposing experts who disagree with you are not necessarily corrupt, dim or myopic.
  93. Reconstructing Your Testimony: Assumptions about what and how you are communicating on the stand need to be checked and rechecked.
  94. Shifts in Testifying and Consulting Expertise: Evaluating experts can legitimately give up their roles as expert witnesses to become jury or trial consultants, but should never assume both roles, or shift from jury or trial consultants to becoming testifying experts.
  95. Silent Treatments: Silence becomes us when we are not intimidated by it in cross-examination and can use it comfortably toward our own effective testimony.
    1. Silences are not the opposite of speech, but rather the environment surrounding spoken language.
    2. Silences serve the function of contrast or emphasis of spoken language.
    3. Lengthy silences can be attention grabbing.
    4. Silence helps you put thoughts into words and to experience a greater awareness of yourself and the courtroom.
    5. Silence is a central part of turn-yielding behaviors and is part of turn-requesting in conversations as well.
  96. Sleight of Hand: Witnesses are not obliged to answer all questions that appear to be related to their fields. Instead, witnesses need to attend to the direct applicability of the question and the extent to which the substance truly falls within their expertise.
  97. Social Construction of Illnesses and Disorders: Psychological disorders and labels are socially constructed, and the prepared expert knows the nature and limits of the constructs.
  98. Taints: Questions about allegations of misconduct should be met forthrightly, indignantly and openly.
  99. Tape Recording of Evaluations: Evaluations that are tape-recorded may be useful for maintaining an accurate and accountable record of questions and statements of both examiners and subjects.
  100. Telephone and Videotape Testimony: Rather than feeling dis-empowered by the absence of visual cues in telephone and videotape testimony, seek by practice and training to master your performance in the medium.
  101. To Cry, to Faint: Address fears of crying and fainting on the stand by habituating to the courtroom, by drawing on an ally, by gaining perspective, and by calling for a break in your testimony, if necessary.
  102. Traps of Common Sense: Do not be immediately agreeable to affirmation of common sense until you have thought through the specific meanings of the questions for your data, conclusions, and opinions.
  103. Trivial Pursuits: Attorneys’ pursuit of trivial topics during depositions is neither a cause for catastrophizing nor concern. Answer without suspiciousness as much as you can without jeopardizing the limits of your expertise.
  104. Ultimate Opinion Testimony: Ultimate issue testimony should be approached with caution and considered a rare event that is dependent on the situation.
  105. What I Don’t and Do Like to See in an Expert Witness: Decide for yourself what it is you dislike in yourself as an expert and what you like. Then, take active steps to diminish the aspects that do not work and enhance the ones that do.

[1] DSM: Diagnostic and Statistical Manual of Mental Disorders.
[2] Meaning, the attorney resorts to attacking the whole discipline or profession of the witness.

Module 9 Presentation: Report Writing and Testifying in Court


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Inconsistencies

Torture survivors may have difficulties in recalling and recounting the specific details of the torture experience and other parts of the history for several important reasons. Clinicians should be familiar with such factors as they can manifest as inconsistencies in the interview. Difficulty recalling and recounting may be related to factors:

  • Factors directly related to the torture experience
  • Factors related to the psychological impact of torture
  • Cultural factors
  • Factors related to interview conditions or barriers of communication

It is extremely important for clinicians to clarify all inconsistencies prior to the report writing or testifying in court. Inconsistencies that are attributable to an individual’s torture experience may, in fact, support his or her allegations of abuse, rather than undermine it. Sometimes an individual’s account may conflict with one given previously, for example, to a legal adviser or other nonmedical interviewer. The medico-legal report should identify these inconsistencies and, if they are relevant, explain them. The report is a legal record of the interviews and should not be amended to minimise these inconsistencies if this reduces the report’s accuracy.

Sometimes a individual will say that an injury was caused by torture when clearly that is not the case. This may be because of a misunderstanding. For example, the person might not be aware of scars across the upper back from childhood chickenpox. When these are pointed out by a health professional, the might say they are the result of torture, believing all scars were a consequence of torture. Another individual may be claiming deliberately that a wound was caused by torture, knowing this is not the case. Perhaps he or she has no scarring from torture but thinks he or she will not be believed without some physical evidence. In this situation the health professionals should document the individual’s attribution, the heath professional’s opinion, and the likely reasons for the difference of opinions. In the context of a complete medical evaluation of both physical and psychological evidedence, the presence of other corroborating physical and psychological evidence will aid in assessing the overall veracity of an individual’s allegations. A false opinion supporting the individual’s attribution must never be given.

It is sometimes suggested that physical evidence is the result of self-inflicted injuries. True self-inflicted wounds are usually of two main types. One is where a person is deliberately harming him- or herself to support a false claim of assault. Such wounds are generally superficial and within easy reach of the dominant hand. Very rarely an accomplice might be asked to cause a wound in a place the person cannot reach, such as in the middle of the back. The other form of self-harm is where the person has a mental illness. Such wounds can be complex, but generally the underlying mental health problem can be identified during the interview. Occasionally a person will have wounds from an unsuccessful suicide attempt in detention, perhaps a desperate response to an intolerable situation. Although the person might be unwilling initially to disclose the true cause of the wounds, if the clinincians responds by using sensitive questioning, he or she will normally say what happened.

Self-Assessment and Quiz

  1. In which of the following contexts may expert medical reports and testimony be of value?
    1. Prosecution of alleged perpetrators
    2. Challenging the credibility of statements extracted by torture
    3. Reparations and rehabilitation of alleged victims
    4. Exonerating law enforcement officials accused of torture and ill treatment
    5. Human rights investigations
    6. Medical assessments of asylum applicants
    7. All of the above
  2. Regardless of the context of a medical evaluation, the purpose of written reports and oral testimony by medical experts is to assess the degree to which physical and psychological findings correlate with the individual allegations of abuse.
    1. True
    2. False
  3. Which of the following may be relevant qualifications for medical expertise on physical and/or psychological evidence of torture?
    1. Medical education and clinical training
    2. Psychological/psychiatric training
    3. Experience in documenting evidence of torture and Ill-treatment
    4. Relevant training courses and seminars
    5. Relevant publications and presentations
    6. All of the above
  4. Physicians who are not psychiatrists may qualify as experts on psychological evidence of torture and ill treatment:
    1. True
    2. False
  5. Clinicians should not review the alleged victim’s affidavit as it may create a bias for the evaluating clinician.
    1. True
    2. False
  6. Which of the following are true about written reports and oral testimony?
    1. They require accurate and effective communication skills
    2. They should be factual and carefully worded; jargon should be avoided
    3. They should not include any opinion(s) that cannot be defended under oath or during cross-examination
    4. The quality can only be as good as the interview and examination conducted
    5. All of the above
  7. Which of the following sources of information should not be used as a reference to a medical evaluation or torture and ill treatment?
    1. Client affidavit of alleged torture and ill treatment
    2. NGO (non-governmental organization) Human rights reports
    3. Government reports on torture and ill treatment practices
    4. Medical records following the alleged torture and ill treatment
    5. None of the above
  8. Written reports and oral testimony represent an opportunity for clinicians to educate adjudicators on physical and psychological evidence of torture and ill treatment.
    1. True
    2. False
  9. Clinicians who are conducting their first medical evaluation may enhance the accuracy and credibility of their evaluation by conducting the evaluation under the supervision of, or having it formally reviewed by, a more experienced clinician.
    1. True
    2. False
  10. Historical information such as descriptions of torture devices, body positions and methods of restraint, descriptions of acute and chronic wounds and disabilities, and identifying information about perpetrators and the place(s) of detention may be very useful in corroborating an individual’s allegations of torture.
    1. True
    2. False
  11. The need for medical and/or psychological care should be noted in your medical evaluation only when the alleged torture victim’s attorney requests it.
    1. True
    2. False
  12. The clinician’s interpretation of findings and conclusions, should relate various categories of evidence, i.e., physical and psychological evidence of torture, and historical information as well.
    1. True
    2. False
  13. Which of the following considerations support the clinical assessments of credibility and argue against the possibility of malingering or simulation?
    1. Lack of over-endorsement of physical and/or psychological symptoms
    2. Lack of a suspiciousness or defensiveness
    3. Consistency between the observed affect of the interviewee and the content of the evaluation.
    4. Consistency between an individual’s pre-torture personality and the meaning the individual assigns to his or her torture/ill treatment experiences
    5. Inconsistencies that are attributable to an individual’s torture experience
    6. All of the above
  14. Exaggeration of psychological symptoms usually indicates that the individual’s allegation of torture and ill treatment are false.
    1. True
    2. False
  15. Which of the following may be helpful in explaining inconsistencies in the alleged victim’s account of torture and ill treatment?
    1. Disorientation during torture, blindfolding, drugging, and lapses of consciousness
    2. Neurological or psychological memory disturbances
    3. Feelings of guilt or shame
    4. Cultural differences in the perception of time
    5. Lack of trust in the examining clinician and/or interpreter
    6. Fear of reprisals
    7. Lack of privacy during the interview
    8. All of the above
  16. It is often helpful to include a statement on the veracity of testimony in a written medical report, such as: “I personally know the facts recited below, except as to those stated on information and belief, which I believe to be true.”
    1. True
    2. False
  17. The presence of diagnostic criteria for PTSD or Major Depressive Disorder (MDD) provides stronger evidence of torture and/or ill treatment than sub-threshold symptoms of these diagnoses.
    1. True
    2. False
  18. Which of the following are important considerations for clinicians who provide testimony on torture and ill treatment in court?
    1. Do not “react” to provocative statements.
    2. Clarify questions that you do not understand before providing an answer.
    3. Do not offer opinions on subjects about which you are not qualified to comment.
    4. Speak clearly, slowly, and make eye contact with whomever you are speaking.
    5. All of the above
  19. Which of the following can help to distinguish psychological symptoms caused by torture and ill treatment versus other traumatic experiences or losses?
    1. Temporal relationships between the onset of psychological symptoms and the alleged torture and ill-treatment
    2. Trends in psychological symptoms in relation to external stressors
    3. Content of nightmares and intrusive recollections
    4. Triggers for intrusive recollection, reliving experiences, and avoidance reactions
    5. All of the above
  20. Istanbul Protocol guidelines for medical evaluations of alleged torture and ill treatment include a formal assessment of the individual’s credibility.
    1. True
    2. False

Module 9: Report Writing and Testifying in Court

Objectives

  • To understand how to convey physical and psychological evidence in a written medical report
  • To be familiar with the content of written forensic reports
  • To be able to formulate appropriate interpretations and conclusions in a medical report and convey them to adjudicators
  • To be able to address the problem of inconsistencies in an individual’s case
  • To be familiar with general guidelines in providing expert medical testimony in court
  • Written reports
    • General Considerations
    • Content of Written Reports
    • Conclusions
    • Guidelines for Medical Evaluations of Torture and Ill-treatment (Istanbul Protocol, Annex IV)
    • Inconsistencies
  • Providing testimony in court
    • Court testimony guidelines and maxims
  • Course Evaluation

Discussion Topics

  • Group Activity: Mock Judicial Proceeding: see below
  • Discussion on international and country-specific challenges for torture prevention and accountability
  • Discussion on the role of health professionals in improving:
    • Investigation and documentation of torture and ill-treatment
    • Country-specific measures for torture prevention and accountability
    • The protection and promotion of human rights
  • Develop a plan of action with short-term and long-term strategies for torture prevention and accountability
  • Course evaluation

Teaching Formats

  • Group Activity: Students will have the opportunity to practice “testifying in court” on their evaluation findings from Modules 7 [1] and 8 [2]. They should have written up their findings (as individuals or small groups) for both (or one as per the instructor) in advance of the Module 9 class so they can use it for their expert testimony. Ideally, each student should have an opportunity to practice testifying on their medical evaluation findings for at least one case. Depending on the time available instuctors should consider the following options:
    • Student groups can be divided so that there are between 2 and 4 students per group. The instructor(s) should periodically check on each group to assess progress and address any questions or concerns that may arise. One or more students should assume the role of the medical expert and one or more students should assume the role of a cross-examining lawyer (or prosecutor/judge). Consider the following questions for the “cross-examining lawyer:”
      • Describe your qualifications as a clinician, in general, and as an expert on the physical and psychological evidence of torture.
      • Were you paid to conduct this evaluation?
      • Did the attorney, with whom you are working, prepare you for this court hearing? If so, how?
      • Describe your primary findings (physical and psychological).
      • What are the possible causes of the findings you described? Are there other possibilities?
      • Is it possible that the physical injuries were self-inflicted, by another inmate, or in the course of a struggle with police/security forces.?
      • Is it possible that other traumatic experience which happened before or after the alleged torture are the cause of the detainees psychological symptoms?
      • Was a proper chain of custody maintained for the collection of evidence?
      • What are your conclusions regarding the detainee’s allegations of torture and ill-treatment
      • Did you find the detainee credible? Why or why not?
      • Were there any inconsistencies observed in your evaluation? How do you explain these?
      • How do you know that the detainee is not faking the symptoms that he/she alleges?
      • Do you have any additional recommendations?
    • If there is adequate time, both cases (Case #01 and #02) should be presented and each student should have the opportunity to assume the role of the medical expert and the cross-examining lawyer at least once. If there is insufficient time, it may be advisable to have half of the students work on Case #01 and the other half work on Case #02.
    • Alternatively, one or two demonstration(s) may be conducted for the entire class and students asked to volunteer for the role of the medical expert and the cross-examining lawyer. The instructor may choose to have students work in teams to ensure that each student has an opportunity to serve as medical expert and the cross-examining lawyer.
    • A single demonstration evaluation by the instructor may be another possibility, with student interaction during and/or at the end of the testimony.
    • Individual online users of the Model Curriculum may review all materials contained in Modules 9 complete their own medical report and answer practice with a friend to answer the suggested questions by the cross-examining lawyer above.
  • Individual Research/Assignment:
    • Individual online users of the Model Curriculum may review all materials contained in Modules 9 complete their own medical report and answer practice with a friend to answer the suggested questions by the cross-examining lawyer above.
    • Discuss international and country-specific challenges for torture prevention and accountability.
    • Discuss on the role of health professionals in improving:
      • Investigation and documentation of torture and ill-treatment
      • Country-specific measures for torture prevention and accountability
      • The protection and promotion of human rights D
    • Provide a plan of action with short- and long-term strategies for torture prevention and accountability.
  • Journal Entry: (Instructor to assign; Write a few paragraphs — no more than a page)
    • Respond to one or more of the Discussion Topics
    • What is the overall value of this course and how can it be improved?
  • Course Evaluation:
    • Students may be asked to fill out an anonymous course evaluation as per the instructor
    • The class should be given the opportunity to provide feedback as a group as well.

Primary Resources

  • The Istanbul Protocol, Chapters IV, V, IV and Annex IV
  • The Medical Documentation of Torture
  • Medical Investigation and Documentation of Torture: A Handbook for Health Professionals
  • Examining Asylum Seekers