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Torture

Follow-up

Many infectious diseases can be transmitted by sexual assault, including sexually transmitted diseases such as gonorrhoea, chlamydia, syphilis, HIV, hepatitis B and C, herpes simplex and Condyloma acuminatum (venereal warts), vulvovaginitis associated with sexual abuse, such as trichomoniasis, Moniliasis vaginitis, Gardnerella vaginitis and Enterobius vermicularis (pinworms), as well as urinary tract infections.

Appropriate laboratory tests and treatment should be prescribed in all cases of sexual abuse. In the case of gonorrhoea and chlamydia, concomitant infection of the anus or oropharynx should be considered at least for examination purposes. Initial cultures and serologic tests should be obtained in cases of sexual assault, and appropriate therapy initiated. Sexual dysfunction is common among survivors of torture, particularly among victims who have suffered sexual torture or rape, but not exclusively. Symptoms may be physical or psychological in origin or a combination of both and include:

  • Aversion to members of the opposite sex or decreased interest in sexual activity;
  • Fear of sexual activity because a sexual partner will know that the victim has been sexually abused or fear of having been damaged sexually. Torturers may have threatened this and instilled fear of homosexuality in men who have been anally abused. Some heterosexual men have had an erection and, on occasion, have ejaculated during non-consensual anal intercourse. They should be reassured that this is a physiological response;
  • Inability to trust a sexual partner;
  • Disturbance in sexual arousal and erectile dysfunction;
  • Dyspareunia (painful sexual intercourse in women) or infertility due to acquired sexually transmitted disease, direct trauma to reproductive organs or poorly performed abortions of pregnancies following rape.

Many infectious diseases can be transmitted by sexual assault, including sexually transmitted diseases such as gonorrhoea, chlamydia, syphilis, HIV, hepatitis B and C, herpes simplex and Condyloma acuminatum (venereal warts), vulvovaginitis associated with sexual abuse, such as trichomoniasis, Moniliasis vaginitis, … Continue reading →

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International Supervisory Machinery and Complaints Procedures

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Apendix I: Sample Psychological Evaluations

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Conclusions

At the end of the report, the health professional must give his or her opinion of the totality of his or her findings, both physical and mental. He or she can say how strongly the findings support or do not support the allegations. The report may have corroborative value when it is added to the other evidence in the case.

All the available information should then be brought together in order to prepare the final report, including:

  • Copies of any previous court decisions about the individual
  • Correspondence from other health professionals to whom the patient has been referred
  • Background information about the situation in the country to which the allegations of torture relate (e.g. from the UNHCR (United Nations High Commissioner for Refugees) or Amnesty International)
  • The account of the event(s) as described by the individual
  • Notes on the individual’s description of his or her physical and mental health
  • Records of the psychological and physical findings from the interview(s)
  • The results of any clinical investigations
  • Recommendations for further treatment

This will then allow the health professional to give an opinion of the likelihood that the alleged victim had been tortured in the way that he or she described, to the standard of proof required by the appropriate forum. Ultimately, the court decides whether the individual is credible, but health professionals must not ignore the issue. 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:

  1. A mixture of falsehood and truth, e.g. a fabricated history of a recent detention added to a genuine one in the past
  2. Conscious or subconscious exaggeration – saying that the ill-treatment was more frequent and more severe than actually happened
  3. Genuine errors arising from mistakes and misunderstandings. The health professional should then make a final statement summarising the opinion.

The components of written reports are elaborated throughout this Curriculum. The following guidelines are based on the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Istanbul Protocol”), Appendix IV. These guidelines are not intended as a fixed protocol. Rather, they should be applied with due consideration to the purpose of an individual evaluation and a reasonable assessment of available resources. Please note that assessments of physical and psychological evidence of torture and ill-treatment may be conducted by one or more clinicians depending on their qualifications.

Guidelines for Medical Evaluations of Torture and Ill Treatment

(see Istanbul Protocol [1] Annex IV)

Case Information

Date of Evaluation:……………………… Exam. Requested By (Name/Position):…………
Case ID/Report #: ……………………… Duration of Evaluation: ……Hours ……Minutes
Subject’s Given Name:..………………… Birth Date:………… Birth Place………………
Subject’s Family Name:..………………… Gender: female / male
Reason for Exam…………………… Subject’s ID#:……………………………………
Clinician’s Name:……………………….. Interpreter Yes/No: Name:…..……………………
Informed Consent: Yes/No; If “No,” Provide Reason:…..……………………………
Subject Accompanied By (Name/Position):…………………………………..…………………
Person(s) Present During Examination (Name/Position):……………………..…………………
Subject Restrained During Exam: Yes/No; If “Yes,” How/Why?……………………………………….
Medical Report Transferred to (Name/Position/ID#):…………………………………………….
Transfer Date: …………………….. Transfer Time: …………………….
Medical Evaluation/Investigation Conducted without Restriction (For Subjects in Custody): Yes/No
Provide Details of Any Restrictions:…………………………………..……………………

Clinician’s Qualifications (For Judicial Testimonies)

  1. Medical Education and Clinical Training
  2. Psychological/Psychiatric Training
  3. Experience in Documenting Evidence of Torture and Ill-treatment
  4. Regional Human Rights Expertise Relevant to the Investigation
  5. Relevant Publications, Presentations and Training Courses
  6. Provide Curriculum Vitae

Statement Regarding Veracity of Testimony (For Judicial Testimonies)

For example: “I personally know the facts recited below, except as to those stated on information and belief, which I believe to be true. I would be prepared to testify to the above statements based on my personal knowledge and belief.”

Background Information

  1. General Information: (age, occupation, education, family composition, etc.)
  2. Past Medical History
  3. Review of Prior Medical Evaluations of Torture and Ill-treatment:
  4. Psychosocial History Pre-Arrest

Allegations of Torture and Ill-treatment

  1. Summary of Detention(s) and Abuse
  2. Circumstances of Arrest and Detention
  3. Initial and Subsequent Places of Detention: (chronology, transportation, and detention conditions)
  4. Narrative Account of Ill-treatment of Torture: (in each place of detention)
  5. Review of Torture Methods

Physical Symptoms and Disabilities

  1. Describe the development of acute and chronic symptoms and disabilities and the subsequent healing processes.
  2. Acute Symptoms and Disabilities
  3. Chronic Symptoms and Disabilities

Physical Examination

  1. General Appearance
  2. Skin
  3. Face/Head
  4. Eyes/Ears/Nose/Throat
  5. Oral Cavity/Teeth
  6. Chest/Abdomen (including vital signs)
  7. Genitourinary System
  8. Musculoskeletal System
  9. Nervous System (Central and Peripheral)

Psychological History/Examination

  1. Methods of Assessment
  2. Current Psychological Complaints
  3. Post-Torture History
  4. Pre-Torture History
  5. Past Psychological/Psychiatric History
  6. Substance Use and Abuse History
  7. Mental Status Examination
  8. Assessment of Social Functioning
  9. [Psychological Testing]
  10. [Neuropsychological]

Photographs

Diagnostic Test Results (see Appendix I for indications and limitations)

Consultations

Interpretation of Finding

  1. Physical Evidence:
    1. Correlate the degree of consistency between the history of acute and chronic physical symptoms and disabilities with allegations of abuse.
    2. Correlate the degree of consistency between physical examination findings and allegations of abuse. (Note: the absence of physical findings does not exclude the possibility that that torture or ill-treatment was inflicted.)
    3. Correlate the degree of consistency between examination findings of the individual with knowledge of torture methods and their common after-effects used in a particular region.
  2. Psychological Evidence:
    1. Correlate the degree of consistency between the psychological findings and the alleged report of torture.
    2. Provide an assessment of whether the psychological findings are expected or typical reactions to extreme stress within the cultural and social context of the individual.
    3. Indicate the status of the individual in the fluctuating course of trauma-related mental disorders over time; i.e. what is the time frame in relation to the torture events and where in the course of recovery is the individual.
    4. Identify any coexisting stressors impinging on the individual (e.g. ongoing persecution, forced migration, exile, loss of family and social role, etc.) and the impact these may have on the individual.
    5. Mention physical conditions that may contribute to the clinical picture, especially with regard to possible evidence of head injury sustained during torture and/or detention.

Conclusions and Recommendations

  1. Statement of opinion on the consistency between all sources of evidence cited above (physical and psychological findings, historical information, photographic findings, diagnostic test results, knowledge of regional practices of torture, consultation reports, etc.) and allegations of torture and ill-treatment.
  2. Reiterate the symptoms and/or disabilities that the individual continues to suffer as a result of the alleged abuse.
  3. Provide any recommendations for further evaluation and/or care for the individual.

Statement of Truthfulness (For Judicial Testimonies)

For example, “I declare under penalty of perjury, pursuant to the laws of (XX country), that the foregoing is true and correct and that this affidavit was executed on X/X/X at (City), (State or Province).”

Statement of Restrictions on the Medical Evaluation/Investigation (For Subjects in Custody)

For example, “The undersigned clinician(s) personally certify that they were allowed to work freely and independently, and permitted to speak with and examine (the subject) in private, without any restriction or reservation, and without any form of coercion being used by the detaining authorities;” or alternatively: “The undersigned clinician(s) had to carry out his/her/their evaluation/investigation with the following restrictions:…”

Clinician’s Signature, Date, Place

Relevant Appendices

e.g. Clinician’s Curriculum Vitae, Anatomical Drawings for Identification of Torture and Ill-treatment, Photographs, Consultations, and Diagnostic Test Results, among others.

In the process of correlating the degree of consistency between physical and psychological findings and allegations of abuse, it is helpful to use the following terms (adapted from IP, §125):

  • Not consistent: The finding could not have been caused by the trauma described. (If this term is used in a medico-legal report, the writer should explain why the individual’s account is considered to be credible, if that is the case, despite this inconsistency.
  • Consistent with: The finding could have been caused by the trauma described, but it is non-specific and there are common alternative possible causes.
  • Highly consistent: The finding could have been caused by the trauma described and there are few other possible causes. (Depending on the level of proof required by the court, such findings may be sufficient to corroborate the individual’s testimony.)
  • Typical of: This phrase is used for lesions that are ‘highly consistent’ with the attribution and additionally the appearance is one that is usually found with this type of trauma (for example, cigarette burns).
  • Diagnostic of: This finding could not have been caused in any way other than that described. (This is strongly supportive of the individual’s account, but does not, by itself, confirm that torture has occurred because the status of the perpetrator and the purpose of the assault are also relevant.)

Quelle

  • [1] https://phrtoolkits.org/downloads/?did=22

At the end of the report, the health professional must give his or her opinion of the totality of his or her findings, both physical and mental. He or she can say how strongly the findings support or do not … Continue reading →

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History of Torture

Torture has been practiced throughout history. The Romans, Jews, Egyptians and many other cultures in history included torture as part of their justice system. Romans had crucifixion, Jews had stoning and Egyptians had desert sun death. All these acts of torture were considered necessary (as to deter others) or good (as to punish the immoral).

Medieval and early modern European courts used torture, depending on the accused’s crime and social status. Torture was deemed a legitimate meens to extract confessions or to obtain the names of accomplices or other information abbout a crime. Often, defendants already sentenced to death would be tortured to force them to disclose the names of accomplices. Torture in the Medieval Inquisition began in 1252 and ended in 1816 when a papal bull (formal statement by the Pope) forbade its use.

Universal prohibition against torture was realized only in the aftermath of WWII in 1948 and the UN Convention on Torture against Torture was adopted by the UN General Assembly considerably later in 1984.

Torture has been practiced throughout history. The Romans, Jews, Egyptians and many other cultures in history included torture as part of their justice system. Romans had crucifixion, Jews had stoning and Egyptians had desert sun death. All these acts of … Continue reading →

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Role of the health professional in the team

Health professionals who encounter survivors of torture may do so in different capacities, and they may thus have slightly different but convergent duties:

  • The health professional who is asked to examine an individual expressly for the purpose of providing a medical opinion in a report for a court or other judicial body will be fulfilling a forensic (medico-legal) role.
  • A health professional who is acting as a care giver to an individual and who in the course of routine work notes signs and symptoms of ill-treatment, or to whom the individual complains of being previously subjected to ill-treatment, may need to make an accurate medical record of the findings in the medical notes.
  • A health professional who forms part of a team visiting places of detention may record findings of ill-treatment in individuals, but this information may be used more generally in a report on the place of detention without actually forming part of a medico-legal report.
  • Health professionals in primary care or emergency departments to whom the individual complains of ill-treatment or who note signs of torture. In such cases the health professional may not necessarily have to write a report, but may just need to know how to make a proper examination and a good set of medical notes, which document the care.
  • Health professionals in hospitals or clinics who may be asked by, for example, police or military, to examine a detainee.
  • Health professionals examining individuals in a specialist centre for survivors of torture

The first and foremost concern for the health professional is the immediate health and well-being of the torture survivor. Health professionals may have a therapeutic role in treating the patient, or a forensic role in establishing the possible causes and origins of injuries and trauma. There are concerns that having a dual role may create the perception of bias in the reporting. The health professional should therefore ensure that the individual is receiving any necessary medical care, taking into account that:

  • Care includes immediate treatment and long-term rehabilitation for survivors of torture.
  • Forms of torture may be used that are psychological or otherwise leave no persisting physical signs. It must always be emphasised that the absence of physical or psychological findings can never be considered to be evidence that ill-treatment did not occur.
  • A psychological assessment of the individual should take place, noting any psychological effects that may be the result of torture or other ill-treatment.
  • The strongest evidence supporting the allegation of torture is often of a medical or psychological nature. The health professional should record any external or physical evidence of injury or abuse and any psychological symptoms and signs.

Health professionals who encounter survivors of torture may do so in different capacities, and they may thus have slightly different but convergent duties: The health professional who is asked to examine an individual expressly for the purpose of providing a … Continue reading →

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International Codes

Many UN documents address the specific ethical obligations of doctors and other health professionals, for example in Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; Standard Minimum Rules for the Treatment of Prisoners; and the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (The Istanbul Protocol). These documents stress that it is a gross contravention of health care ethics to participate, actively or passively, in torture or other ill-treatment, or condone it in any way. Medical services must be provided for all patients without discrimination. They reinforce the ethical obligations of health professionals to act in the best interests of patients.

Many UN documents address the specific ethical obligations of doctors and other health professionals, for example in Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees Against Torture and … Continue reading →

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Trust

Trust is an essential component of eliciting an accurate account of abuse. Earning the trust of someone who has experienced torture or other forms of abuse requires active listening, meticulous communication, courtesy and genuine empathy and honesty. Clinicians must have the capacity to create a climate of trust in which disclosure of crucial, though perhaps very painful or shameful, facts can occur. It is important to be aware that those facts are sometimes intimate secrets that the person may reveal at that moment for the first time.

Clinicians should explain what to expect in the evaluation. The clinician should also be mindful of the tone, phrasing and sequencing of questions (sensitive questions should be asked only after some degree of rapport has been developed) and should acknowledge the interviewee’s ability to take a break if needed or to choose not to respond to any question.

Trust is an essential component of eliciting an accurate account of abuse. Earning the trust of someone who has experienced torture or other forms of abuse requires active listening, meticulous communication, courtesy and genuine empathy and honesty. Clinicians must have … Continue reading →

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Regional Mechanisms

A number of regional human rights treaties have also been developed within the Council of Europe (CoE), the Organisation of American States (OAS) and the African Union (AU).[1] The rights protected by these treaties derive from, and are similar to, those of the Universal Declaration of Human Rights, but each treaty has developed unique approaches when seeking to implement them. The principal instruments referred to here are:

  • the European Convention on Human Rights
  • the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment
  • the American Convention on Human Rights
  • the Inter-American Convention to Prevent and Punish Torture
  • the African Charter on Human and Peoples’ Rights.

The European Court of Human Rights, the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, the African Commission on Human Rights and the (soon to be established) African Court on Human Rights are responsible for monitoring state-compliance with their respective treaties. These bodies examine allegations of torture on the same level as other alleged human rights violations. However, the CoE has also created a specific body for preventing torture in its member states.

The European Committee for the Prevention of Torture (CPT) was set up under the 1987 Council of Europe European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment. It is composed of as many independent and impartial members as there are states parties to the Convention and may be assisted by ad hoc experts. Currently all members of the CoE have also ratified the European Convention for the Prevention of Torture. The CPT conducts periodic and ad hoc visits in any places under the jurisdiction of a contracting state where persons are deprived of their liberty by a public authority. States parties are obliged to provide the CPT with access to its territory and the right to travel without restriction; full information on the places where persons deprived of their liberty are being held; unlimited access to any place where persons are deprived of their liberty, including the right to move inside such places without restriction; and other information which is necessary for the CPT to carry out its task.[2] The CPT is also entitled to interview, in private, persons deprived of their liberty and to communicate freely with anyone whom it believes can supply relevant information. The report on the visit and detailed recommendations sent to the government are confidential unless the government concerned decides that they can be published. In practise, most reports have been made public.

[1] Formerly the Organisation for African Unity (OAU).

[2] Article 8, European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment 1987.

A number of regional human rights treaties have also been developed within the Council of Europe (CoE), the Organisation of American States (OAS) and the African Union (AU).[1] The rights protected by these treaties derive from, and are similar to, … Continue reading →

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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.

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. … Continue reading →

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