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Paediatricians in the courtroom: Becoming an expert witness

2017; Wiley; Volume: 53; Issue: 5 Linguagem: Inglês

10.1111/jpc.13527

1440-1754

Catherine Skellern,

Ethics in medical practice

At various times within their professional career, a paediatrician can expect to be asked to provide evidence within legal proceedings. In some instances, the provision of evidence will be limited to providing a report but in some cases it may require attendance in court to provide oral evidence. A subpoena is a legal order compelling a witness to produce documents, attend court or both.1 Failure to comply with the subpoena can result in penalties being applied to the witness. For many paediatricians, this type of professional experience may make them feel anxious or even resentful of having to participate in such proceedings. These feelings may arise because being compelled to provide evidence in court takes the medical specialist well outside of their usual familiar working environment into what may appear to be a complex and confusing experience. An understanding of the procedures and rules that govern legal proceedings may help the medical witness improve their ability to be helpful to the court. Being able to provide reliable evidence in court should be considered a useful and important skill for paediatricians and can also be taught to paediatricians-in-training. In a criminal matter, the first legal hearing that may involve the paediatrician as a witness is a committal hearing. This is an initial testing of evidence in front of a judge to determine if the evidence is sufficient to commit the matter for trial. In some jurisdictions, the paediatrician may not be asked to appear in this process and in others the committal can involve a vigorous testing of evidence, similar to what occurs later in the trial however with no jury present. Criminal proceedings adopt the adversarial process with defense and prosecution each presenting to the court their witnesses who provide their account of events, which is then tested by the other side, with a judge acting as an impartial referee between the two sides in the proceedings and the jury as the 'tribunal-of-fact'. This tribunal-of-fact determines whether the accused is found guilty, using the standard of proof of 'beyond reasonable doubt'. In the criminal courts, the burden of proof is for the prosecution to prove their case rather than defense having to prove innocence of the accused. The rules of law that govern legal proceedings are aimed to ensure fairness. The ancient Greek god Themis (Fig. 1) is considered the personification of divine law, and in her human form is often used to represent the power of the court to impose sanctions and represent the legal processes used in criminal matters of weighing evidence to determine guilt. Inside the courtroom, proceedings are formal which reflects the gravity of matters before the court and the penalties that can be imposed on the guilty. It is essential that as a participant the paediatrician understands and abides by the rules and conventions, which govern these proceedings. This should be reflected in how a professional witness is dressed, how they prepare for these proceedings and how they interact with the legal professionals in the courtroom. Participating in these proceedings under legal subpoena should not be given less priority than other tasks that are the responsibility of the paediatrician. The paediatrician should ensure that they are available at the time specified or negotiated with legal counsel who have called the paediatrician as a witness and ensure other medical responsibilities are delegated to others during that time. Mobile phones and pagers should be off when the courtroom is entered. As professional witnesses, the courts are generally respectful of other commitments that a medical specialist may have which may make them unavailable at certain times to attend court. Legal counsel or investigators will generally be willing to organise a date and time that is more suitable, with some discussion prior to the hearing. An expert witness is needed to help the tribunal-of-fact (which is a jury, in a jury trial) understand information that is beyond ordinary knowledge. This requires the judge (who decides on matters of law) to consider whether the particular issue before the court falls into an area of specialised knowledge. To varying extents, paediatricians, by virtue of their medical training, have specialist knowledge, however, the expertise between paediatricians will vary depending on their field of practice and experience in the field. It is recognised that courts are cautious in using experts in legal proceedings. In surveys of the judiciary, judges have expressed anxieties about relying on expert witnesses. They have recognised there are risks of excessive influence on the court from impressive and articulate experts, risks of introducing a misunderstanding by the jury, and risks of bias from partiality with the 'side' that have called them as a witness. In some instances, experts have introduced poor quality opinion methodology and analysis of facts into the court proceedings.3 What the courts want is assistance with fact-finding, interpretation of information, informed reliable perspectives and trustworthy, authoritative guidance. They seek experts who are honest, with integrity and lack of bias to supply neutral non-partisan evidence in the form of facts and opinions, not speculation, to assist court decision-making. This requires the expert to let go of being an advocate and maintain a clear appreciation of the purpose of the legal process. The processes used in the courtroom to test evidence is designed to identify any weaknesses, flaws, biases or assumptions which may reduce the reliability of the opinion provided by the expert to the court. As such, it is essential that the paediatrician should expect their evidence to be tested rather than simply provide an opinion and expect the court to accept it automatically as fact. The testing of evidence is an essential part of the legal process to enable the facts to be established for the truth to emerge and exists as a check-and-balance within the legal system. There are differences in law and the rules of expert evidence between different State, Territory and Commonwealth jurisdictions. Some jurisdictions have Uniform Evidence Acts whilst the common law of evidence applies in others (QLD, SA, WA). All jurisdictions have civil procedure rules that regulate expert evidence given in legal cases involving lawsuits. Some, but not all, have explicit codes of conduct that expert witnesses are required to acknowledge and adhere to, others have developed practice notes or directions to guide experts in contributing to legal proceedings.5 The judicial summary once it is available may also provide some feedback from the judges perspective about your evidence in the context of the overall proceedings. This can be accessed from The Australasian Legal Information Institute website (http://www.austlii.edu.au) which contains judgments on cases including judicial comment on evidence heard within proceedings. Giving evidence is a professional skill and like other professional skills, is built over time. Having an understanding of legal processes in the courtroom, rules of evidence and the experts role within the proceedings can be useful to prepare for the experience which is to assist the court in their fact-finding task. This overview provides a useful starting point for the paediatrician-in-training to begin developing their skills as an expert witness. These skills can be further developed by observing an experienced colleague and if available, by gaining experience through moot court proceedings such as through medico-legal organisations, university faculties and health organisations providing training and education in forensic medicine.