Session 1-Testifying in Court PDF

Some Basic Guidelines On Presenting in Court CAP Professional Development Day: September 16, 2017 Andrew M. Haag, Ph.D. [email protected] Giving Credit: Portions of the Presentation have been inspired from Rosine (1995). Court Legal proceedings can transpire in numerous different settings: An inques...

Some Basic Guidelines On Presenting in Court CAP Professional Development Day: September 16, 2017 Andrew M. Haag, Ph.D. [email protected] Giving Credit: Portions of the Presentation have been inspired from Rosine (1995). Court Legal proceedings can transpire in numerous different settings: An inquest A trial Various hearings Investigations or inquiries So How Are Psychologists Involved With The Court Process? Psychologist can become involved in the court system in three different ways: They may be requested to provide support for personnel who have been called to testify They can be subpoenaed as a general witness They can be called an “expert” witness The Role Of A General Witness Most people who give testimony in court do so as a witness to an event. You are asked to testify about what you saw, heard, or know about an event or situation at issue in court You do not need any experience to provide such testimony This type of testimony is most frequent if a psychologist saw an event and is now being asked to testify A General Witness When providing general testimony, general witnesses can only relay first-hand information or knowledge of the situation/event In this type of testimony, you may not offer your opinion or thoughts about any matter An Expert Witness As a psychologist, you might be called to testify as an expert witness An expert provides the court with testimony based on his/her specialised knowledge as an expert Testimony As An Expert Witness One can be qualified as an expert in an area based on training, experience, or knowledge. To be qualified as an expert, a lawyer will present the court with a copy of your curriculum vitae. One can then expect that there will be a series of questions about the CV Following the questions and considerations, the court will determine whether to declare a psychologist as an expert in some area Testimony As An Expert Witness Once one is qualified as an expert, one will be able to provide expert opinion regarding a particular matter that is at issue in court Once one has be declared to be an expert, one will be expected, usually on cross-examination, to support one’s opinion with relevant information. Consider your opinion carefully: be certain that you can support your opinion Testimony As An Expert Witness One should avoid being declared an expert in an area unless you truly have specialised knowledge in the area and one is professionally competent. Putting oneself forward as an “expert” and not being able to demonstrate professional competence in an area may lead to ethical complaints against a psychologist based on a lack of competence. R. v. Mohan Supreme Court of Canada indicated that the admission of expert evidence depends on the following four criteria: 1. Relevance 2. Necessity in assisting the trier of fact 3. The absence of any exclusionary rule 4. A properly qualified expert. R. v. Abbey Supreme Court and hearsay evidence (case involved a psychiatrist). 1. 2. 3. 4. An expert opinion is admissible if relevant, even if it is based on second-hand evidence; Hearsay is admissible to show the information on which the expert opinion is based, not as evidence going to the existence of the facts on which the opinion is based; Where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion; Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist. Examples Of Topics For Psychologists As Expert Witnesses Sentencing and rehabilitation (dangerousness) Eyewitness identification (processes of memory) Techniques to enhance recall (hypnosis, guided imagery) Child custody (evaluation of the best interests of the child) Professional malpractice (failing the standard of care) Psychiatric and psychological evaluations Tips On Testifying In Court What To Expect In The Courtroom The unknown can be quite frightening. If you can go to the court room ahead of time, you should. If possible (i.e., allowed), one should sit on the proceedings before one is called to give evidence in Or, in circumstances where you are not allowed to sit in prior to your giving evidence, you might try and sit in on another case. This will acquaint you with court procedures and you can see how other present on the witness stand In some circumstances, the lawyer may prepare you for court by taking you into the courtroom, briefing you on what to expect, or by asking you questions that s/he expects will be asked in the court room What To Expect In The Courtroom When in the witness box, it is good manners to acknowledge the judge Smile and be polite/professional You will be asked to identify yourself If you are there as an expert witness, you can expect that your CV will be filed as evidence What To Expect In The Courtroom Generally, during your testimony in Alberta you can expect to stand in the witness box. This implies standing for sometimes long periods of time at once (i.e., hours at a time). Should extensive standing be a problem, one may request from the court to sit in a chair What To Expect In The Courtroom If there is a recess during your testimony, you can expect that you will be prohibited from discussing your testimony with others during the recess It is wise to refer to people by their legally recognised titles. For instance, if you are testifying about offenders, one should use the title offender or inmate as opposed to client. What To Expect In The Courtroom Calling an offender a client could present you as being overly supportive of the accused. Your testimony may be seen as less than objective and your credibility might be questioned. The above may be different during a coroner’s inquest where it may be preferential to use the title “client” as opposed to inmate, as this may convey a level of support or concern for the offender. The principle is that you ought to choose your words wisely What To Expect From Lawyers The court system in Canada is adversarial Evidence is presented and cross-examined by both parties in the case. One can expect the possibility that a lawyer will attack, ridicule, find flaws, and find vulnerabilities in a witness’ testimony One can expect that a lawyer will work to actively impair, diminish, or destroy the credibility of the evidence and the witness What to Expect In Terms of Examination In Court Lawyers will attempt to highlight any problems or deficiencies in your testimony The role of each lawyer is to get information that supports his or her case The above are the rules of the “game” any attacks are not a personal attack against you even though it may feel that way when you are on the stand Common Legal Strategies Asking the same question in a number of ways, hoping that you will contradict yourself Asking questions to which you partly agree or disagree and then force you into a yes or no answer Asking you about a topic that is outside your knowledge or expertise (if you are an expert witness) Asking you a series of questions to which you do not know the answers (designed to make you feel foolish) Asking you a question in such a way to appear angry with you or ridicule or demean you into reacting angrily or causing you to recant or qualify your statements Common Legal Strategies Pressuring you so that you feel hurried to answer Attempting to get you angry Quickly asking you a series of questions to which you agree, then including one to which you do not agree Asking the occasional question that may seem irrelevant in order to make it difficult to know exactly where the lawyer is going with his/her questioning Presenting you with hypothetical situations The Court Process Either lawyer may have an agenda that is not necessarily in your best interest Never believe that a lawyer is “on your side” unless you hired the lawyer What If I Don’t Know? If you do not know, say “I don’t know.” There are no limits to how many times that you say this Stay firm in your position if you do not know Don’t provide answers to questions if you do not actually know the answers – you will quickly be on “thin ice” and a skilled lawyer may be able to lead you to provide answers that are not accurate This will make you vulnerable to contradictions in your testimony and to the testimony of other expert witnesses or other witnesses Common Mistakes Made On The Stand Hearing the first part of the question raised by the lawyer and answering before s/he completes the question. Be sure that the lawyer is completely finished, pause a second to formulate your answer, and then speak Common Mistakes Made On The Stand Answering more than has been asked of you. Answer only what has been asked of you. Anything you say on the stand becomes part of your evidence and is open to cross examination. If you answer beyond the scope of the question, you have opened an area where you can be further questioned by all parties. Common Mistakes Made On The Stand Answering questions outside your area of knowledge or expertise. If you are asked a question and you do not have the knowledge to answer, it is quite appropriate to state “I don not know” or “that is outside my area of expertise.” Common Mistakes Made On The Stand Answering impulsively or not taking time to think about your answer before responding. The court will give you all the time you need within reason Poorly formed answers place you in a position of having to back track, explain, and correct misperceptions. This will decrease the perception that you are a credible witness. Common Mistakes Made On The Stand Answering questions about someone else’s behaviour, reports, or testimony. For example, if the lawyer asks, “what do you think Mr. Smith meant when he said…?” it is quite acceptable for you to say that you are unable to comment on what Mr. Smith was thinking and the lawyer will have to ask Mr. Smith what he meant. However, if you are testifying as an expert witness, it is permissible for a lawyer to ask you your opinion about another person’s thoughts, behaviours, etc. If you are not able to provide an opinion, simply state “I have no opinion.” Common Mistakes Made On The Stand Letting your prejudice or personal beliefs influence your testimony. The court wants the facts. What you saw, what you did, what you heard – or, if testifying as an expert, your expert opinion. You are, in essence, a reporter in that you provide the who, what, when, where, and how of your observations and opinions When testifying as a witness, you ought to leave your personal beliefs out of your answers Common Mistakes Made On The Stand Being defensive Don’t defend your programme or yourself Present the facts even if they reflect negatively It is acceptable to say that it “reflected the state of the art/our knowledge at the time. If we were doing it today with today’s knowledge we might/would do it differently.” Watch for... Lawyers will sometimes make a highlight of evidence that doesn't exist: You haven’t authored a single paper on… You are not a member of society “x” Attacks to your assumptions Know what your assumptions are and what empirical evidence you use to support them In you have published a major work in the area your are testifying on, don’t assume that your article is authoritative in the field Be balanced and forthright in your testimony - acknowledge the limitations of your position Requests From Lawyers Psychologists should treat requests from lawyers for client information like any other request for information: Carefully Requests from a lawyer meet the same conditions for “consent” that a request from any other party would have Requests From Lawyers The release of client information should be checked carefully/verified Should written consent be obtained, subsequent disclosure should be limited to boundaries set within the consent. Formal requests from a court for information are handled differently. May come as a subpoenas or a court order. The Subpoena a legal command to provide information or provide testimony. It can require both testimony and the disclosure of documents. From The Criminal Code... 698 (1) Where a person is likely to give material evidence in a proceeding to which this Act applies, a subpoena may be issued in accordance with this Part requiring that person to attend to give evidence. (2) Where it is made to appear that a person who is likely to give material evidence (a) will not attend in response to a subpoena if a subpoena is issued, or (b) is evading service of a subpoena, a court, justice or provincial court judge having power to issue a subpoena to require the attendance of that person to give evidence may issue a warrant in Form 17 to cause that person to be arrested and to be brought to give evidence. From The Criminal Code... 700 (1) A subpoena shall require the person to whom it is directed to attend, at a time and place to be stated in the subpoena, to give evidence and, if required, to bring with him anything that he has in his possession or under his control relating to the subject-matter of the proceedings. (2) A person who is served with a subpoena issued under this Part shall attend and shall remain in attendance throughout the proceedings unless he is excused by the presiding judge, justice or provincial court judge. Psychologists Are Not Protected By Legal Privilege In Canada There is essentially no information generated within a psychologist-client relationship that is out of reach of the courts. Judges are typically sensitive to the counsellors’ ethical responsibility to protect their clients’ confidentiality, and do not require us to breach confidentiality unless there are compelling reasons to do so. Responding to a Subpoena Know your organization’s policy and guidelines on client confidentiality and record-keeping If appropriate, contact the client for whom the subpoena pertains and advise that you have received a subpoena. Responding to A Subpoena/Court Order Be timely If you are in doubt about anything, consult with a lawyer before releasing subpoenaed information. Counsellors are also reminded that a decision to comply with court requests will not leave them legally vulnerable to a charge of breach of confidentiality. Disclosure needs to be limited to only the information requested Responding to A Subpoena/Court Order Never destroy information after receiveing a court order!!! This may be obstruction of justice or contempt of court. The Ontario Court of Appeal ruled that the shredding records is “manifestly Inappropriate.” R v Carosella (1995), 102 CCC (3d) 28 (Ont CA). Responding to A Subpoena/Court Order Sometimes there are requests for informational disclosure which may have significant negative consequences. A psychologist may resist compliance but, however, a psychologist will need to make a formal response indicating the rationale for any concerns - seek legal counsel Responding to A Subpoena/Court Order It is possible, if there are compelling reasons, in response to a particular subpoena, to file a motion to have it cancelled or modified. Alternatively, one could seek the guidance of the court on a particular subpoena. This will require the assistance of a lawyer. Responding to A Subpoena/Court Order If a subpoena or court order is not withdrawn or modified, then a psychologist must comply with the original request for disclosure with or without their client’s consent. Meeting With Lawyers After Subpoena In A Criminal Matter It is relatively common to meet with the lawyers of either side in high stakes criminal matters May be the Crown or defence