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.