1. Testifying in Court Ann S. Botash, MD, FAAP
Module IX: Testifying in Court
Preparing this module for presentation:
This module can be given in its current form; however, of all the modules, this one will vary the most from country to country according to the local laws and policies. In order to make this module more effective, the instructor will need to spend time prior to the training to tailor this module according to:
1) the specific laws and practices in the host country, and
2) your audience: having any prosecutors or magistrates in the audience will greatly strengthen this module.
Slides are effective for trainings in the United States. For presentations outside the U.S., these slides can be deleted or read through more quickly just for edification.

2. Objectives
List important legal elements of medical documentation in child abuse.
Explain the steps in working with attorneys to prepare for court.
Describe how to testify in court.
The objectives of this module will be to:
1. List important legal elements of medical documentation in child abuse.
2. Explain the steps in working with attorneys to prepare for court.
3. Describe how to testify in court.
Ask the participants: “Raise your hand if you have ever testified in court before?” and then say that you look forward to learning from them about their experiences in court.

3. Case Discussion
9-year-old girl says she was raped by her uncle last month. Her mother brings her to the district health center and the doctor says her genital exam is normal.
Mother brings child to the police who then go question the uncle. The uncle says that the girl wanted to have sex with him, and therefore he did nothing wrong.
This case can be discussed in two ways:
If there are police, prosecutors, or magistrates in the audience, or
If the audience is only medical professionals.
1. If there are police, prosecutors, or magistrates in the audience:
Read the case, and then ask the following questions to the participants who are police, prosecutors, or magistrates. These are the same questions from the baseline survey, and they serve as a good base for the participants from different disciplines to educate each other and stimulate conversation. If you organized your training with the help of law enforcement, you can choose to have that person present this information to the participants at this point in the presentation:
Please explain to us the procedures for what happens in a case like this:
-Does the uncle get arrested? If not, what the are reasons why?
-If he gets arrested, where is he taken and kept until the trial? Can he be bailed out until trial?
-How soon, on average, does the trial take place – days? Weeks? Months? Years?
-What is the youngest age a child can testify in court?
-For children old enough to testify in court, are they always required to testify in trial? In front of the alleged perpetrator?
-What are the procedures on the day of trial: Would the procedures be considered child-friendly? In what ways? Where do the child and the perpetrator wait (ie. together in a line outside the court?). Who is allowed to be in the courtroom to watch? Do people in the audience make comments aloud that can be heard by the child?
-What percentage of defendants have an attorney? In cases where the alleged perpetrator has no attorney, are they the ones asking questions of the child victim? Are there any types of questions they are not allowed to ask? How often does the child recant when their alleged abuser is the one questioning them?
-What evidence does a magistrate need to reach a guilty verdict – in this above case, and in other cases?
-What are the types of penalty for a guilty verdict? Jail – how long? Probation? Just paying a fine?
-If the alleged abuser is 12 or 15 and is found guilty, what is his penalty? Same jail as adults? A “home” for troubled youth? Who runs these homes and how are they monitored?
-In what ways do the courts help protect the child once the perpetrator is eventually released – ie. are there orders of protection?
2. If the audience is only medical professionals:
a. Depending on the responsiveness of the participants, you can ask the following question directly and have them answer it and discuss it, or you can ask it rhetorically and then immediately give the answer: “Do you need to testify if the girl had no injuries?” Answer: Yes, we should testify because we can explain to the court that a normal exam does not mean that there was no abuse.
b. When the exam is normal, the prosecutor should ask you: “Was the child’s genital exam consistent with her disclosure of sexual abuse?” Your answer will be “Yes.” …. though a strong defense attorney will ask “Well, isn’t it also true that the child’s genital exam was consistent with not being abused,” to which you will also have to reply “Yes.”
You will also be able to explain to the prosecutor about other medical, mental health, and psychosocial issues that concern you about the child’s safety and give them suggestions for what questions to ask.
Regardless of the disciplines represented in your audience:
As the participants answer each question, feel free to draw parallels to your own court system, especially in terms of acknowledging that our procedures and policies are not always child-friendly and how this can increase the stress for the child who is preparing to testify.
Teaching points:
-These cases are tough. Courts were designed for adults, not kids, and this makes it more difficult for children to feel comfortable to tell the truth which then hinders our ability to protect them.
-Begin to think of each step of the process and explore whether there are ways we can improve the child-friendliness of the court while maintaining the rights of all involved, including the accused, and adhering to the current laws.
-This case only highlights a few issues – we will discuss additional issues through the rest of this module.

4. Medical Record Documentation
Who is in the room
What questions were asked prior to disclosure
Use quotes only if really a quote
Document findings objectively, presence and absence
Document “why” tests/evidence not done
Avoid terms that may be interpreted differently
If you make a mistake in documentation…then what?
Writing a detailed medical note is the first step to helping you have an easier time in court. Why?
1. A detailed note shows the court that you were very complete in your assessment and did not just rush to a conclusion that the child was abused; and
2. Depending on how your court system works, there can be a delay of weeks, months or years before you finally testify, and you will forget the important details that helped lead you to the conclusion that the child was abused.
When you document a disclosure, you should document who is in the room, what questions were asked prior to the disclosure, how did this disclosure come about. Was it spontaneous or was it prompted by very specific focused questions.
You should only use quotes if it is really a quote. Exactly what did the child say and in response to what. Quotes can help because it helps the reader imagine the child saying those exact words.
Document the findings objectively and whether or not there are findings. If there are not any findings, then those are also objective. Document why the tests and evidence collection were not done, and avoid any terms that might be interpreted differently. So you don’t necessarily want to use a term that is used frequently in a legal situation. For example, I never use the word, “intact”, to describe a hymen because intact to legal people, and to regular people, and even medical people, think that means that it is completely untouched, that the hymen is intact and untouched. That is not necessarily what we mean. We just mean that there are no findings. We should just document that the findings are normal and there is a normal hymen.
If you make a mistake in documentation, that is a situation that often leads to a very prolonged testimony for you. You are going to be sitting there explaining why you wrote something incorrect, meaning you documented the wrong side of the body, you documented the wrong side of the hymen, used the wrong hands on the clock, thought the child was supine and by the time you wrote the note you thought the child was prone and you wrote the 12 o’clock and 6 o’clock in the opposite positions. That does happen and you need to re-document in those situations. It is much easier to re-document and allow the lawyer to point that out in court rather than have it come up as an issue that you have to go through yourself in testimony. The lawyer can just point it out and go right through it much more quickly.

5. Definitions Confidential Communication Privileged Communication
Information kept private between individuals
Example: between medical provider and patient
Privileged Communication
Confidential communication that a magistrate or judge can not compel a witness to tell
In most countries, information regarding child abuse is neither confidential nor privileged
These are two terms used in some countries; however, it is important that participants know the exact definitions of the terms being used by the prosecutors and magistrates in your region. We sometimes think we’re saying and meaning the same thing, but we could be mistaken.
Communication between a physician and a patient is always considered confidential; however, child abuse suspicion is an exception to the confidentiality laws. Privileged communication means that a disclosure cannot be compelled in court.

6. Sharing Privileged Communication
Despite the physician-patient privilege, assume that medical records involving cases of child abuse will become available to lawyers and magistrates in a criminal or civil legal matter.
Do not assume you can and should turn over records to police, lawyers, or others without determining if authorization exists.
When contacted by a lawyer, determine whether you are authorized to talk to the lawyer before releasing information.
Any information turned over to one party will be turned over to all parties.
In almost every country, despite the physician-patient privilege you can assume that medical records involving cases of child abuse will become available in a criminal or civil legal matter.
You can’t assume that you can and should turn over the records to the police, attorneys, or others without determining if authorization exists. So even though most of the time you will have to turn those over, you really should stop and make a determination about whether or not they actually do have rights to those records – involves contacting our attorneys here at the hospital to make sure that we have all the appropriate releases in place.
When contacted by an attorney, you need to determine whether you are authorized to even speak to the attorney before releasing information. Authorization again in those cases again usually means a release of information from the parent who has actual rights to release that information.
Any information that you do turn over will be turned over to all parties. And that is just a general rule in terms of any of these cases that are going to court. If you are called to testify, you should be sent a subpoena for testimony. Subpoenas may be issued by a grand jury or by a court. Attorneys will often issue subpoenas on behalf of a court. However, they all must be signed and usually these are signed by a judge, not just an attorney.

7. Coordinating with Attorney
Give a contact phone number
Ask to be sure that they received all written materials, including any statements you may have provided
Assist the attorney as much as possible
Ask to be “on call” on the day of trial
Ask to be “on call” on the day of trial:
Many courts have long waiting times and it is not always certain that a case will be hear before the magistrate; therefore, if possible, have the attorney keep you “on call” – call your cell phone once it is certain what time you will testify (this works if the court is 30-40min from the hospital).

8. The attorney for the prosecution calls, but you are too busy to meet…
What should you do?
What are the risks of not meeting with the prosecuting attorney?
What if the defense attorney calls you and wants to talk to you?
You need to meet with or speak with the attorney before the trial because it is going to make a huge difference in the case. If you don’t you are going to get to court and be unprepared. You can potentially really damage the case. You can potentially really help the case by giving whatever insight you have, particularly if you have testified before and you can see some areas that a defense attorney might ask questions. You can help guide things a little bit. The other thing that happens sometimes is that you have been subpoenaed to testify by the prosecution and the defense has your name on the witness list and they call you.
We have to talk to the person who has sent the subpoena, but we aren’t under any obligation to talk to the other side, whoever that may be. In most cases, if you are the person who saw the child you are being requested by the prosecution to testify. In our case, we do not speak in any substantive way to the defense attorney.

9. Preparing to Testify Create a file of information on the case.
Ask for a subpoena.
Is it family or criminal court?
Review the case file/medical record.
Memorize a few details.
Check for consistencies in the record.
Contact the attorney and/or social services to consult.
Review pertinent literature.
Update your curriculum vitae and review it for your qualifications.
So what are the first steps when you are going to be testifying?
Create a file of information on the case. Some people only keep the medical record. Some people keep a separate file. If you keep a separate file, you should be aware that it can be subpoenaed for your testimony. And so anything in a personal file can be used. I used to keep a separate file because we didn’t have everything electronically and it was a lot easier than trying to pull a record. I no longer do that because we have everything on computer.
If you are called by an attorney, you should ask for a subpoena. You should make sure whether you are dealing with Family or Criminal Court.
A subpoena protects you so that when you are traveling to wherever, you are going there as part of your work. So that if anything happens to you, it protects you and it also keeps track of your time; so that if you are employed somewhere, they know where you are. It also protects you in terms of what you disclose. You have now been subpoenaed by the court to disclose something. You are not just showing up and saying whatever you feel like saying, which could be a violation of privacy.
You should review the case, file, and the medical record prior to going into court. I always try to memorize a few details the second before I go into court because I have such a short term memory. So I have the date that I saw the child in my head, their birth date, and a few details about what happened. I look myself for inconsistencies and consistencies in the record because I know they are going to be pointed out, and I try to be really cognizant of those before I go in the room. I can look at the record several times and I still don’t remember unless I look right before I go in. So I look at it again right before I go in.
I always have contacted the attorney well before testifying. Sometimes you don’t get the subpoena until a few days before. You should really work with your local law enforcement, district attorney’s office and Family Court attorneys to help you with that. So that as soon as they are planning to call you to testify, they contact you so that you have some time to prepare your schedule. But you want to contact that attorney to consult with them. You want them to know what you know. And don’t assume that they know what you know. Even though they have the record, they don’t necessary know all the details or understand all the medical jargon that was put in the chart. You also may be able to help them with steps within the case. It may be that this is a child who has for example genital warts, and maybe they think the genital warts are really important to the case. You could point out to them that a child under the age of 2 years with genital warts may be a sign of maternal transmission. Maybe they didn’t know that and you can save everyone a lot of time and money by getting that information to them ahead of time.
Review the pertinent literature almost every time before you go to court unless you do this a lot. Just so you have this on the tip of your tongue so that if you are asked a question that has to do with an opinion, you can base it on evidence. You should also update your CV and make sure you review it. There is nothing worse than getting in there and having them ask for things off your CV and you don’t even remember your own CV. Already you don’t look quite so bright in front of the jury.

10. Definitions
Subpoena – a written order from the court that requires a hospital to deliver medical records to court, or requires witnesses to come to court to testify.
Subpoenas may be delivered to your place of work. You are required to appear even if you do not personally receive it.
Delete this slide if your baseline survey revealed that the host country does not use subpoenas.
The subpoena may require an individual to appear in court or may require an individual to bring records to court. If you are asked to bring records to court, you probably should have a second type of subpoena for the records. This is a completely different type of subpoena than for you specifically.
The subpoena may be delivered to your place of work. You are required to appear even if you do not personally receive it. This is true even if you are on vacation and you are not there. If a subpoena appears, your place of work should be alerted to the fact that they need to notify you as soon as it appears so that you can contact the attorney and talk about the fact that you are currently on holiday.

11. Can they subpoena…? Can your personal notes be subpoenaed? Yes No
What about releasing photographs?
Can you bring a copy of the records with you?
Can your personal notes be subpoenaed?
Yes
What about releasing photographs?
Yes, if it’s part of the medical record.
Can you bring a copy of the records with you?
Depends on the policies of your hospital and the court.

12. The U.S. Judicial System Criminal Court Civil Court
Addresses interests of the state
Prosecutor pursues charges against the suspect
Prosecuting attorney and defendant’s counsel are present
Victim is a witness. In U.S. if child is under the age of 9 years cannot testify without qualification to testify
Statute of limitations limits timeframe for prosecution
Civil Court
In New York, family court is charged with adjudicating violations of Social Services Law that prohibit child abuse
LEGAL ISSUES: The Judicial System
Child abuse cases may be addressed in civil court, criminal court, or both. While varying theories of criminal justice abound, criminal courts review evidence and, when determined guilty, hold violators accountable, typically through fines, probation, or incarceration. In civil courts, other remedies are sought to resolve conflicts or disputes. Courts are established on federal, state, and local levels. Jurisdiction and procedure vary at each level.
Criminal Court
Criminal courts address the interest of the state. Consequently, the prosecutor, on behalf of the state, pursues charges against the suspect or defendant. The state is represented by the prosecuting attorney (district attorney) and the defendant by counsel he or she has hired, or if the defendant is determined to be indigent, by counsel appointed by the court. The victim is not represented by counsel in criminal court. The victim is a witness who, like other witnesses, can provide relevant, material testimony. In New York State, children under the age of nine cannot testify under oath until qualified to testify by the court.
The purpose of Family and Criminal Court are really entirely different. There are different rules and procedures for each court. For Family Court, the child abuse case determines if the child has been abused and if so, protect the child from further abuse. The focus is on the child. Whereas in Criminal Court, it is determined whether someone has committed a crime, violated a criminal statute, and if so, penalize the offender. So the focus is on the offender. There are two different foci for the two different types of judicial systems.
In New York State, Civil Court is the same as Family Court. Civil Court is charged with adjudicating violations of Social Services Law that prohibit child abuse through child abuse and neglect proceedings brought by counsel for social services departments. It is Social Services that bring the cases to court. Child Protective Services, Department of Family Services, or whatever it is called where you live, is the actual petitioner. In Criminal Court, the District Attorney prosecutes in the name of the people of the State of New York. That is the difference between the two.

13. U.S. Criminal Court The burden of proof is beyond reasonable doubt
Witnesses can be “fact” or “expert”
Out of court statements are considered “hearsay”
Defendant’s rights: fair trial, presumed innocent, right to confront the accuser
Double jeopardy
In Criminal Court, the burden of proof is beyond reasonable doubt. So it is a little bit harder to prove a case against an offender. Witnesses can be a “fact” witness or an “expert” witness.
Out of court statements can be used and they are considered “hearsay”. There are exceptions to “hearsay” which I will talk about in a minute.
Defendants have specific rights: right to a fair trial, right to be presumed innocent, and they have the right to confront the accuser. Those are just some. And then there are also the double jeopardy rules that you cannot be prosecuted twice for the same allegation.

14. U. S. Criminal Court: Grand Jury
Case is presented to Grand Jury (16-23 jurors) to determine need for trial:
File an indictment (for misdemeanor or felony charges);
Vote a "No True Bill" (dismiss the case or not indicted);
Return the case to Criminal Court (file misdemeanor charges only and refer the case back to the lower court);
Remove the action to the Family Court (file charges against a juvenile aged to be prosecuted in the Family Court rather than treat the juvenile as an adult to be prosecuted in the Superior Court).
In Criminal Court, cases go to Grand Jury first. It is presented to Grand Jury to determine if there is a need for a trial. The jury, which isn’t the same as the twelve jurists, can be up to 23 jurors. Grand jury is easier – only the prosecutor asks questions. The grand jury can file an indictment for misdemeanor or felony charges. It can vote a “No True Bill” which is to dismiss the case or to not indict the case.
It can return the case to Criminal Court or refer the case back to lower court. And it can remove the action to Family Court, particularly if it is a juvenile with the intent to try the child as an adult through Grand Jury. It can be removed to Family Court instead. The child can be prosecuted as a juvenile in Family Court.

15. U.S. Civil Court
Inherent in both statute and case precedent is the belief that the best interest of the child is most often served when that child remains with his or her own family.
Burden of proof is much lower than criminal court.
Hearsay evidence may be more acceptable.
Child witness less likely to testify.
Other situations: custody and visitation disputes that involve child abuse allegations; lawsuits against alleged abusers or against third parties for damages resulting from the abuse or the failure of the third party to meet their obligation to protect the child from abuse, including failure to meet legal obligations to report.
Civil Court is again very different. The burden of proof is lower than in Criminal Court. It is inherent in both statute and case precedent that the best interest of child is most often served when that child remains with his or her own family. So the rules for Civil Court and for Child Protective in general is to keep families together as much as possible.
In Civil Court, “hearsay” evidence may actually be more acceptable than in Civil Court. The child witness may be less likely to testify, it really depends on your area. They are more likely to testify in some areas.
Civil Court might include custody and visitation disputes that involve child abuse allegations. There may be lawsuits against alleged abusers or against third parties for damages resulting from the abuse or the failure of the third party to meet their obligation to protect the child from abuse, including failure to meet legal obligations to report. So all of that takes place in Civil Court.

16. Testifying Fact Witness Expert Witness Hearsay evidence
Required to testify regarding observations, findings and diagnosis regarding a child you treated.
Expert Witness
Testify regarding matters that would be outside the normal scope of knowledge and experience of the judge or jury.
Opinion, hypothetical or dissertation testimony.
Hearsay evidence
Refers to courtroom testimony regarding statements made by another person outside of court.
When you are called to testify, you may be called as a “fact” witness or an “expert” witness. A “fact” witness is anyone who basically observed the child in whatever situation. For medical providers, that would be the doctor who saw the child. In that case, if you are called to testify you really are required to testify regarding your observations. What were your findings; what was the diagnosis; what did the child say to you; what did you treat the child with. Even as a “fact” witness you are entitled to have an opinion as the doctor who saw this child.
As an “expert” witness, you are called to testify regarding matters that would be outside the normal scope of knowledge and experience of the jury or Grand Jury. Expert witnesses are asked hypothetical types of situations. So you may have seen the child and still be a “fact” witness but if you are going to be asked hypothetically if the child were exposed to this, this, and this, would that cause findings for abuse? And even though this particular child may not have seen that, you are there to educate the jury. That is the way I think of the expert witness.
In some cases, an expert witness could be a child abuse doctor who did see the child as well, so they could also be the fact witness. In our county, as the child abuse doctor who testifies as a person who saw the child, I would not automatically be an expert witness unless they are going to go ahead and ask us these hypothetical questions and ask us for what they would call a dissertation, a testimony where we would be teaching the jury. There is a slight difference there. In our county it makes a difference because we can bill as experts but not as fact witnesses. Actually we can bill for anything, but we can’t actually get paid as fact witnesses.

17. Hearsay Evidence Exceptions
Excited utterances (startling event)
Fresh complaint of rape
State of mind exception
Medical diagnosis of treatment (Must document that the child understands the nature, purpose and need for accuracy of the exam. Document how the information disclosed is pertinent to the diagnosis and treatment.)
Child hearsay exception
Ohio v. Roberts and Crawford v. Washington
Legal Issues in Child Abuse and Neglect Practice. John E. B. Myers. Sage Publications. 2nd Edition.
Hearsay evidence refers to courtroom testimony regarding statements made by another person outside of court. This comes into play as medical providers when the child discloses to you. If a child discloses to you and that child is not going to be testifying about their disclosure in the courtroom, you may be the only person who has the ability and power to testify about what the child has said. The idea is the child testified to you in good faith as their doctor and therefore the hearsay evidence would be allowed because there would be no reason to think the child would say something that is untrue to their own doctor.
Hearsay evidence exceptions include: Anytime there is an excited utterance such as when a child says something out of fear, or it just happened and it is a fresh complaint and they excitedly say what happened. There is also a state of mind exception which kind of goes with those two that it just happened and the person doesn’t have enough time to make it up. Then there is the exception I just talked about - medical diagnosis of treatment. In those situations, you can’t just walk into a courtroom and say the child told me because I am their doctor.
You really should document that when the child told you that they actually understood the nature, the purpose and the need for accuracy of the exam. That is something that should be done early on in the history part of the examination when you are talking with the child, building rapport, asking them why they are here, what the purpose of the exam is, and why they need to be truthful about things. Make sure they understand the truth and then you can document how the information is disclosed pertinent to the diagnosis and treatment. That will suffice for hearsay evidence.
There is also a child hearsay exception. The Ohio vs Roberts Supreme Court case is the one that allows hearsay evidence. There is the Crawford vs Washington case which actually talks about a child or an adult in a situation of being interviewed by a medical person, and that disclosure could be considered testimonial and not really for the purpose of the medical examination. That is why these other things are really important: Documenting that the child understands the nature, purpose and need for accuracy of the exam; documenting how the information is disclosed in relationship to the diagnosis and treatment. Because if it is perceived by the court that the child came to you as a referral, for example, from the police, and they are sitting in your exam room because the police sent them there. They know they just left the police station and they know that’s why they are there or a reasonable person might assume that what they tell you would be used in a legal situation. If a reasonable person assumes that, then what they have told you is considered testimonial and it does not meet the hearsay exception. It is a little bit confusing and it has taken me awhile to figure out exactly what that means. There are some websites that go through all the various legal situations leading to Crawford vs Washington.
Read more: "Child Abuse and the Law - Hearsay Evidence" -

18. Testifying in Court Appearance/attire
Procedure for testimony (direct and cross examination)
Communicate effectively (the truth, of course)
Recognize that the system is adversarial
Stop and think before answering
Appearance and attire depend on the expectations of your local community.
In Criminal Court, there will be a direct examination where you will be asked specific questions by the district attorney or by the prosecuting attorney in Criminal Court. In Civil Court, you will be asked by the child protective attorney.
Cross examination is when the defendant’s attorney asks questions. Usually those are more of a yes or no type answer and you do not get an opportunity to do the “yes, but…” and give more information.
“Communicate effectively”. What does that mean? That means speak loudly, enunciate, look at the audience, look at the jurors, look them in the eyes, look at the attorney who is speaking to you. And of course, tell the truth. Always go there knowing the system is adversarial. The point is to try to disqualify you, discredit you sometimes. It is not a personal vendetta against you but if the attorney can use something that you have done that somehow helps them with their case, it may seem like it is adversarial or directed toward you but it is not meant to be that way. I always stop to think before answering. Some people say don’t think about it too much, just tell the truth. I always think about it because I know how this works. They are leading to a specific conclusion and a series of questions leads to a specific conclusion. You want to know when the cross examiner is asking you a specific question where do you think they are going with that. You have to give the truth but you might be able to, just by a long enough pause, alert your prosecuting attorney, in re-cross, to come back to that. That has happened to me a few times. I will pause, look over at the prosecuting attorney, and then later they will say, “It seems like you had something else to say when they brought this up….” They didn’t know exactly what I had to say but I gave them enough of a hint that there was more to the answer than just yes or no. They were able to re-cross. You have to answer yes or no though if you are being asked a direct question that is a yes or no answer.

19. Testifying in Court Ask to repeat questions if unclear
Answer yes or no if asked direct questions
Ask to see record if you do not remember
Do not give opinion beyond area of expertise
Think about your “demeanor”
You can ask to see the record if you don’t remember. I do that a lot. Try to be careful, be very careful, about not giving an opinion beyond your area of expertise. You will get tripped up if you try to do that. Also think about your demeanor because you are being asked questions that seem adversarial. It is probably not a good idea to joke around. I have occasionally done it. It hasn’t come back to haunt me but I usually feel badly afterward. There is someone sitting there in the room who is the defendant, who deserves a fair trial. I don’t think it is a good idea to joke around with that person in the room. They will probably not think you are funny.

20. What are your resources?
Come prepared with a list of references on the tip of your tongue.
Adams, Kellogg, Berenson, Berkoff and others
OK to use your experience to give an opinion.
Opinions should be based on a reasonable degree of medical certainty.

21. What is a reasonable degree of medical certainty?
Not 100%
Based on the literature
Based on common medical knowledge
Based on your experience
In U.S. Court, doctors are asked what they believe the diagnosis is with a “reasonable degree of medical certainty.” You should not get asked “Doctor, isn’t is possible that…..?” Your attorney should object, because almost anything is possible, but that doesn’t mean it is reasonable.
What is a “reasonable degree?” It’s difficult to say. One interpretation (used especially in physical abuse): A reasonable degree of medical certainty that a child was physically abused means that (1) not only are the injuries consistent with having been inflicted, but also (2) there are no other explanations that reasonably explain the findings.

22. Cross Examination
You are repeatedly asked the same question about the examination being normal.
No “Yes, buts” are allowed in cross.
Prosecution should be prepared for re-cross when this happens.
The opposing attorney will often only ask yes/no questions in order to help paint a misleading picture. If you feel that only saying yes or no would paint a misleading picture, you can try saying “I can not answer that question as a yes/no question.” The magistrate may allow you to explain in certain situations, other times perhaps not. Regardless, your attorney will then know to ask you about this issue when it’s their turn again so that you can explain what you need.

23. Inappropriate Questions
Have you ever been abused?
How much money are you being paid?
Questions beyond your scope of practice.
Have you ever been abused?
Your attorney should object to this question. If they don’t object, you can try objecting to the magistrate saying that this has nothing to do with whether the child was abused.
How much money are you being paid?
Every professional deserves to get paid for their time – the exact amount is irrelevant.
Questions beyond your scope of practice.

24. The Afterthoughts Second guessing your answers
Remember, you were not the only witness
Ask the attorney to call you with the verdict
Track your trials
I know this happens to me every single time - I second guess or I wish I had said this, or I wish I had thought about this before I testified, or I wish I had talked to the attorney about that before court. The thing to do is to remember that you weren’t the only witness in the case. It is a whole package deal; it’s a show that is being put on by the attorney and you don’t really have control over it. You only have control over what you say at the moment; you don’t have control over the questions being asked of you that force you down a certain path. That is the system. I try to always make sure that the attorney plans to call me with the verdict afterward.

25. What about the media?
Whatever you say can and will be used against you.
Less is more.
Do not discuss the case with anyone.
Children deserve privacy; thus, we should not talk to the press about our patients.

26. Summary Preparation should start the minute you see the patient.
Testimony is more than about the facts.
Expert opinions—require research.
Maintaining a professional demeanor is critical.
Assisting with appropriate questions prior to the trial is also critical.
Advocate for the truth—not necessarily on one side or the other.
Remember that preparation begins the minute you see the patient and then when you write a good detailed note. There are more than just the facts that need to come out. There are opinions that require you to do some research. Maintaining a professional demeanor is critical. Assisting with appropriate questions before the trial is also critical. Advocate for the truth, not necessarily one side or the other.
There is more information on ChildAbuseMD.com.