Testifying in a Legal Proceeding

Jerry R. DeMaio

As a medical professional involved in tactical operations, there is a strong chance that you will be called on to provide testimony in a legal setting. For instance, if you are providing support to a law enforcement team on a raid or an arrest, you might be asked to testify about the medical condition or injuries sustained by the suspect, victims, or officers—this may be true whether you treat the individuals on the scene or at an emergency department. If an operation involves the transfer of a detainee or prisoner, you might be called on to testify about the subject’s treatment or medical condition while in custody, or about the subject’s health or treatment during the transfer, especially if the subject claims that he or she was mistreated. There is also a chance that you may be asked to testify in a nonmedical capacity about what you saw, heard, or experienced during an operation or during your response to a scene. In any of these situations, knowing what to look for and how to prepare for your testimony will make you a more confident and effective witness.

This chapter outlines some of the basics of providing testimony in a legal setting. The chapter is intended not to make you an expert on the legal rules of procedure or evidence, but to give you the basic principles to help you learn what to look for on the scene, how to work with the lawyer to prepare for your testimony, and what to expect when you are on the stand, with the ultimate goal that you will be an effective witness in any legal proceeding in which you are called to testify. This chapter will not prepare you for every possible situation. Each case will involve different issues, every lawyer you work with will have unique idiosyncrasies, and every court will have slightly different procedures, so you will have to work out the details with the lawyer in each case. The concepts in this chapter, however, should be generally applicable. Testifying in court is a challenging experience for anyone, but with proper preparation, it does not have to be a painful one.

This chapter is written as if you will be a witness for the government in a criminal case, but be aware that that is not the only situation where you may be called to testify, even if the situation was one where you were directly working for or supporting a law enforcement agency. Depending on the circumstances, you might be called as a witness by the defendant in a criminal case or in a civil case. Remember that, despite the differences in the type of case, the same basic principles will apply to your role as a witness.

TESTIFYING IN COURT: AN OVERVIEW

If you are providing medical support to a police or other law enforcement agency, it is likely that, if you are called to testify, it will be in some portion of a criminal case, although it is possible that your testimony may be needed for other types of cases. Although the basics of testifying are generally the same regardless of the type of case, it is helpful to know a little about each type. In a criminal proceeding, as you are probably aware, the government brings charges against a defendant, whom the government has reason to believe has violated a criminal law. Most criminal cases are brought in a state court, but some criminal cases, including many fraud cases, weapons cases, drug cases, and national security cases, may be brought in U.S. federal court. The procedures in the two types of courts
will vary slightly, but the basic structure of the case should the same.

A civil case involves one party suing another party for some sort of relief, often monetary damages; the U.S. or a state government may be a party. One example of a civil case where you may be called to testify is a lawsuit where a suspect is suing an agency for a violation of his or her civil rights, such as mistreatment during arrest or detention. You may also be involved in a special kind of civil proceeding known as a habeas corpus proceeding, in which a defendant in custody, usually criminal, challenges the government’s constitutional basis for detention.

A third type of proceeding you may be involved in is an administrative proceeding, run by an administrative agency rather than a judicial court. A common example is an immigration case, where the government might be attempting to remove or deport someone from the country. Many aspects of these proceedings look like a criminal case, but they do not involve a violation of the criminal law and will not result in jail or prison time for the defendant.

Stages of the Proceeding

Unlike what happens on television, cases do not resolve themselves in 60 minutes. Depending on its seriousness and complexity, a criminal case may take weeks, months, or even years to resolve. In most cases, however, the basic stages are predictable. Several of these stages might require your testimony, and it is helpful to be familiar with them and their relationship to the case as a whole, because as the purposes of the hearings change, the scope and content of your testimony will often change as well. Knowing the basic procedural structure will also help you communicate with the lawyers and understand where your testimony will fit into the overall case.

Pretrial

A criminal case normally starts with an arrest, culminates in a trial, and, if the defendant is convicted, ends with sentencing (sentencing may also be followed by an appeal, but this chapter does not deal with appeals, as you will rarely, if ever be called to testify during the appellate process). However, to reach those milestones, many things must happen in between. After a defendant is arrested and detained, a series of hearings will take place quickly, normally within the first few days after the arrest. Defendants will normally have an “initial appearance” or “arraignment” where they are informed of the charges against them and appointed a lawyer if they do not have one and cannot afford one. There may also be a “probable cause hearing” or “preliminary hearing” to determine if there is sufficient evidence to proceed to trial. Additionally, a “detention hearing” may be held to determine what restrictions the defendant will be under while waiting for trial. In a detention hearing the judge will weigh factors such as whether the defendant is dangerous to the community and if there is a risk that the defendant will not show up for court if released, to determine whether the defendant will be in jail, will be on some sort of electronic monitoring, or must post bail (or none of these) before trial. Depending on the court, some or all of these events may be part of the same hearing. These initial hearings usually involve very few, if any, witnesses. Often a single police officer or agent will testify, but depending on the court and the judge, other testimony, including medical testimony, may be required.

In addition to the initial hearings, the court will often hold a series of other hearings prior to trial to resolve issues that must be decided before the trial can begin. Some of these hearings may be referred to as “evidentiary hearings,” “suppression hearings,” or simply “pretrial hearings.” Many pretrial hearings involve procedural issues that will only involve each side’s lawyers, but for some hearings, the court may require testimony from witnesses. If you give testimony at such a hearing, it will normally be heard by a judge, not a jury. The issues at pretrial hearings where your testimony may be required will often include whether a certain piece of evidence will be admissible at trial or whether the prosecution has violated the constitution or any laws that would prevent them from continuing the case. Be aware that if you testify at a pretrial hearing, you may need to testify again at trial.

Trial

The trial is the portion of the case with which you are probably most familiar. At a criminal trial, evidence is presented by the government in an attempt to prove that the defendant committed the crimes with which he or she is charged. The defendant may present evidence to attempt to counter or discredit the government’s theory of the case or may present evidence justifying the commitment of the crime (such as a “self-defense” argument). The defendant is not obliged to present evidence at all, and may choose not to, relying only on argument to poke holes in the government’s theory of the case. The evidence at trial may be heard either by a judge or by a jury, who will then decide if the defendant is guilty of the charged crimes. If you are called to testify, it is very likely that it will be during the trial phase of the case.

Sentencing/Disposition

The final phase that you should be aware of is the sentencing or disposition of the case. In a criminal case, the sentencing hearing will take place sometime after a defendant has been found by either a jury or a judge to be guilty of a crime. Normally, the judge will assess factors such as the nature of the crime, the defendant’s role in the
crime, the defendant’s criminal history, and other factors to determine an appropriate sentence. Again, depending on the court and the nature of the crime, your testimony may be required. If the crime is one where the jurisdiction authorizes the death penalty, the sentencing phase may look very similar to the trial, be tried in front of a jury, and require testimony.

Your Role

In any stage of the case, you may be called on to testify in one of several roles. In the medical field, you are probably most familiar with the use of a physician or other medical professional as an expert witness. This is a witness who normally does not have firsthand knowledge of the events of the case but, because of special knowledge, training, or education, is allowed to give an opinion about some issue to help educate the judge and jury. If you participate in a tactical operation as a medical professional, and you are asked to testify, there is a strong chance that you will be asked to give your professional medical opinion about something that happened. If that is the case, you must be prepared not only to give your opinion, but to be able to explain the basis of that opinion, including what facts you used and the analytical method by which you reached your conclusion.

Depending on the circumstances of the case and your role in it, you may also be called on to testify as a “fact witness,” or as some combination of a fact witness and an expert witness. A fact witness is someone who has personal knowledge of a relevant fact in the case, such as an eyewitness to a crime, or a coconspirator testifying against a former colleague. If you have taken part in a prisoner transfer, for instance, you might have observed the prisoner’s actions or heard comments he or she made outside of your medical evaluation or treatment. If what you saw or heard is relevant to the case, you might be asked to testify as a fact witness about it in addition to your medical testimony.

Whatever your role in testifying, it is important to remember where you fit into the overall picture. It is easy to want to try to win the case for “your side.” It is also easy to plan on sitting back and only answering the questions you are asked. Ideally, your role falls between these two—the case is not yours to win or lose, but you are not merely a passive player. Your goal should be to give complete and truthful testimony, and honest opinions, with regard to your portion of the case, regardless of which side calls you. As a fact witness, you will be providing an important piece of the puzzle of what happened. As an expert witness, you will be imparting your specialized knowledge to the judge and jury so that they can make a fully informed decision. In either case, your complete and honest testimony will be essential to the proper functioning of the justice system.

PREPARING FOR TESTIMONY AT THE SCENE

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