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LEGAL ISSUES: Testifying as a Fact Witness

You may be called as a fact witness, that is, required to testify regarding observations, findings, and diagnosis regarding a child you treated. In general, photographs are admissible in court when they help describe the findings. You also may be asked to give an opinion regarding findings and diagnoses. For example, a physician treating a child for bruises, abrasions, fractures, or other injuries may be asked to give an opinion as to whether such injuries were inflicted or accidental.

In order to reduce courtroom waiting time, try to work out an arrangement with the attorney to be called when the court is ready for your testimony.

Hearsay Evidence
line spacer Hearsay refers to courtroom testimony regarding statements made by another person outside of court. Usually hearsay is not allowable and is restricted because it is seen as less reliable evidence. Because the individual who made the statement is not testifying to it, the speaker's credibility cannot be assessed and the speaker cannot be cross-examined. There are many exceptions to the hearsay rule, and the law regarding admission of hearsay is complex and interpretations may vary. All exceptions are based on the premise that the statement was made under circumstances that bolster its reliability. That is, the statement was made under a circumstance in which the speaker is less likely to lie. For example, a statement made when someone is dying (a dying declaration) is deemed more likely to be truthful.

Medical records indicating disclosures of abuse and medical testimony regarding patient information given as part of a routine or case history are often allowed in court as exceptions to hearsay rules. This can be critical to the prosecution or defense of a case, particularly if the victim does not testify. In order to allow the medical provider to testify to the excepted hearsay, the medical record should document the child's exact words as well as the exact words the medical provider used to question the child.

Be prepared to testify to the following information regarding medical records:

  • They were made in the ordinary course of business and at the time of the examination
  • They are consistent with routinely followed procedures
  • How and where records are maintained and who has access to them
  • How (or if) the documentation may reflect exceptions to the hearsay rules

Statements for Purpose of Medical Diagnosis and Treatment
line line The hearsay exception presumes that a person seeking medical care and treatment understands that telling the medical provider the truth is in his or her best interest. This exception is particularly useful in child abuse cases. One must remember, however, that only information relevant to the diagnosis and treatment will be allowed.

Be prepared to testify that the child/ adolescent understood that he/she was seeing you for medical assistance. This awareness should be documented in the record. For example, you can document the question "Do you know why you are here today?" Then document the child/adolescent's answer and any follow-up comments you make. You may also want to document efforts to emphasize to the child/adolescent the importance of being truthful so that you can address the child/adolescent's medical needs.

Because testimony under this exception is limited to information relevant to diagnosis and treatment, many courts will not allow the medical provider to testify to the child/adolescent's statements regarding the identity of the abuser. If you document and can explain why identity of the perpetrator is related to the child/ adolescent's medical treatment, the likelihood for admitting this testimony is increased. For example, an Emergency Department physician may need to know the identity of the abuser to permit safe discharge of the patient. The identity of the perpetrator with known or suspect diseases or infections may be related to tests that should be administered to the child/adolescent. While many or even most courts will not allow this testimony, be prepared to offer it.

Excited Utterance or Spontaneous Disclosure
line spacer Statements made in response to an unusual and startling event are deemed to be more reliable under the hearsay exception. In addition to requirements that the event must be shocking and uncommon, the statement must be made about the event and during a timeframe when the speaker is still under the influence of the event.

Traditionally, this exception was applied only to statements immediately following the event, for example to a witness at the scene or to Emergency Department personnel directly after the event. Increasingly, however, this exception is being applied to statements made much later but while the speaker is still under the influence of the event. In some child abuse cases, the disclosure has been identified as the startling event, or it has been recognized that the child made the statement at the first safe opportunity. Potentially, courts could allow statements made months after the assault because the characteristics of a child's response to sexual abuse frequently include a delay and a spontaneous utterance.

Statements may be made to you that meet the requirements of the excited utterance exception. Document the specific words the child/adolescent used and that the child/adolescent was in an excited state.

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Legal Issues: Overview  Legal Issues: Consent by Mature or Emancipated Minors  Legal Issues: Protective Custody  Legal Issues: Medical Records  Legal Issues: Confidential and Privileged Communication  Legal Issues: Subpoenas  Legal Issues: Judicial System  Legal Issues: Testifying as a Fact Witness   Legal Issues: Testifying as an Expert  Legal Issues: Testifying in Court  Legal Issues: Additional Resources 

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On this page:
Hearsay Evidence
Statements for Purpose of Medical Diagnosis and Treatment
Excited Utterance or Spontaneous Disclosure