For Doctors: Testifying in Court & Preparing Medical Reports for the Court

It has become apparent to prosecutors that most doctors in Jamaica are, like the average Jamaican citizen, are either fearful of testifying in the criminal courts or reluctant to attend court.

While some of your colleagues simply tell us, “I have more important things to do!” Which you may agree is unfortunate. The truth is participation in the justice system affects all our lives. No-one living in Jamaica is immune from crime. A doctor can be robbed, raped, killed or injured in a motor vehicle accident; shot, chopped and all these experiences involve the court.

I hope to alleviate the fears some of you may entertain and assure you that as prosecutors we are aware of the importance of the service you offer to the nation and we do respect your time. I will go through our expectations of you from the examination of the victim to testifying in court.

TESTIFYING IN COURT
WHAT DO WE DO TO ACCOMMODATE YOU?Admittedly, doctors are the only witnesses every court across the island gives priority. You may have the odd judge who refuses the prosecutor’s request to interpose the doctor immediately upon his or her arrival but that is the exception to the rule. Generally, doctors are the only witnesses we readily take out of sequence.

I assure that our judges and prosecutors recognize the importance of your profession. After all I would not like to be a patient who dies because my doctor had to go to court and wait all day to testify! The prosecutors and judges have an understanding and we do our best to eliminate or reduce the time doctors spend waiting to testify. We cannot guarantee that once you start testifying that you will be out of court quickly as that all depends on the nature of the case, the number of defendants and of course defence counsel!

Factors that might cause delay in the courts
There are also other factors that may result in delay on your arrival and in times of delay I ask that you bear with us. Examples of this are:

• The absence of the accused on your arrival.
• Absence or tardiness of a juror or jurors.
• Defence counsel is late – the judge will sometimes start your evidence without counsel but we still have to wait for counsel to conduct the cross examination
• Court may have started late and you arrived during the empanelling of the jury or the opening address.
• The judge’s summation in another case may have taken longer than anticipated
• The prosecutor was not informed of your arrival
  
  You might deem it a waste of your time if upon your arrival the accused man decides to plead guilty – defence counsel uses this as a strategy at times to see whether or not important will really attend then on their arrival the accused pleads guilty.

WHEN YOU ARE CALLED TO ATTEND COURT:

• We usually extend the courtesy of calling doctors to advise them of the court date instead of issuing summonses compelling your attendance – please co-operate with the police officers who call – their role is to contact the witnesses, secure their attendance and in your case – help to minimize wasting your time.
• Please ask the officer who contacts you for the name of the Prosecutor and which Court – please give the officer your contact number (preferably a cell number) so we can call to inform you whether or not you are still needed. You can also request the prosecutor’s cell number – most prosecutor's don’t mind.
• There will be the odd occasion when we are compelled to call you at short notice please bear with us as the court room is "the land of uncertainties."
• We will call to advise you whether or not we still need you to attend if the trial starts
• If you are overseas and we need you to return to testify the government will pay your airfare, ground transportation, hotel accommodation and meals for you. It is recommended that you leave a forwarding address as your evidence maybe crucial to the incarceration of the guilty or the liberation of the innocent.
• If you need transportation arrangements to be made for you – please advise the officer as well.
• If you encounter any difficulty – please contact the court or the DPP’s office as early as possible – the information can be communicated to the court.
• If you have been served with a summons to attend court and you fail to do so a warrant will be ordered for your arrest in order to secure your attendance – this is a last resort. However, the Crown usually requests subpoenas and warrants in circumstances where the doctor is being uncooperative. Occasionally the judge may decide to issue the warrant instead of staying execution. This is usually done in circumstances where no explanation for the doctor's absence forthcoming.
• Execution of the warrant on the doctor means you will either be remanded in custody or offered bail to return. You might be require to obtain suitable sureties like any other prisoner. IF your bail is extended and you fail to attend court, like any other prisoner your sureties will be required to pay the bond and a bench warrant will be issued for your arest. Once you testify the court will release you.

WHAT TO DO ON YOUR ARRIVAL AT COURT

• Please inform the police officer at the door that you are a doctor and ask him to inform the prosecutor of your presence.
• You will be invited into court – usually doctors are allowed to sit in the front of the court room – you will be directed – in courtrooms outside the Corporate Area you may be allowed to sit in counsel’s bench. To avoid embarassment allow the prosecutor or judge to advise you where to sit.

WHAT TO EXPECT WHEN TESTIFYING

• Please carry your notes – the original handwritten notes as well as the typed copy (if there is one) - even if you don’t end up using them or believe you have excellent memory.
• Please do not enter the witness box and proceed to open your file and read.
• You will be asked:
• your name is …
• You are a registered medical practitioner in the island of Jamaica
• You are attached to the UHWI
• On … (dated) did you examine … (patient)
• At the time of your examination you made notes
• Do you have those notes with you … yes
• Are you able to testify without the assistance of your notes (ALWAYS accept an invitation to refer to your notes. No-one will think you are a dunce who can't swot a report.
• At this point you must ask the permission of the court to refer to your notes … the court usually will allow you to
• If you forget to ask (depending on the Judge & Defence Counsel) Prosecuting Counsel might be allowed to ask you – did you seek the permission of the court to refer to your notes?

• NEVER EVER EVER refuse an offer to refer to your notes! No matter how well you think you know the file
• We do not expect you to memorise the report and we would much prefer if you read the information from the docket – a few doctors have destroyed strong cases by relying on their memory instead of referring to the report.
• Try to appreciate your purpose as a witness – you are regarded as an expert witness – your role is to explain the medical aspects of the case to the jury – you are not there to take sides with either the prosecution or defence – but to state your observations and to give your unbiased professional opinion.
• Be prepared to defend the findings you recorded
• Be confident in your responses. The cross examiner is almost always NOT a medical doctor, but more often than not is a lawyer trying to be clever!
• Suggestions by cross examining counsel are just that, SUGGESTIONS not statements of fact. Suggestions require fulsome responses so please give them.
• Remember the difference between possibilities and probabilities! Anything is possible and cross examining counsel will disguise fanciful possibilities as high probabilities in their suggestions.
• Where your conclusion differs from that of another medical practitioner, be prepared to support or defend your conclusion with fact or theories from your expertise
• If you realize at any stage during or prior to your testimony that you have made an error whether by act or omission please be prepared to say so and explain, if possible, how it was possible for such an error to have been made but please do not stand mute.
• You can expect to be questioned concerning your credentials, to the extent not covered by your patient's attorney. This is to raise doubts about your expertise by pointing out areas that are NOT your specialty
  
  Ø A doctor on testifying in court shall not decide legal questions by making up his mind that certain questions are improper and either refusing to answer or treating the question as if it were unimportant or insignificant, and therefore answering only in part.
  
  Ø If a doctor feels that a question is improper and there is no objection from counsel putting him on the witness stand, he may ask the Court whether he is bound to answer such question.
  
  Ø You will always be asked in examination in chief, “In your opinion doctor could the injuries you observed have been caused by a sharp instrument such as a … weapon used
  
  Ø In wounding matters you might be asked whether or not the injury was a defence wound, degree of force used, position of the attacker, position of victim etc.
  
  Ø We recommend that in sexual assault cases doctors weigh the consequences of their evidence so as not to lead the discussion to the character of the victim.
  
  Ø You should listen carefully to the questions being asked and answer them.
  
  Ø If you don’t understand the question please say so or ask counsel to repeat. Sometimes attorneys may be mistaken as to what exactly they mean to ask if you realize that that is what is happening you can coin your answer in a manner that explains or simply ask the attorney to clarify the question.
• Bear in mind that the jurors are usually lay men some of whom cannot read and some of us attorneys do not understand so explain all medical terms. Point out all areas to which you are referring as you testify
• Speak slowly and clearly because despite recent technological advances Judges are made to write the evidence word for word.
• Spell medical jargons for the benefit of all.
  
  
  Conclusion
  None of us are immune to crime. We all want justice. We all must play our part.

Presented to Medical Doctors at the University Hospital of the West Indies by Tanya Burke in 2007 at the invitation of Dr. Rhonda Hutson.