The rules pertaining to statement writing also apply to giving oral evidence, with the exception that
there is less time to think during the latter.
The old adage of "Dress up, Stand up, Speak up and Shut up" still reigns.
There exists a basis of expectation that the professional man or woman will look the part. That the
quality of evidence given does not depend on twinset and pearls or shirt and tie is irrelevant. The
prejudices of the jury and justices should be recognised and catered for. The forensic witness is not
there to make a political or sociological point. He/she is there to aid the court in the administration
of justice. Suits and ties and smart skirts or dresses or suits worn according to the traditonally
accepted mode for your gender should be the norm.
Be prepared, locate your clinical records in advance.
Arrive at court in plenty of time if possible.
You may be allowed to refresh your memory from your statement before going into court. This
should be done to link the form and structure of your statement with the clinical notes from which it
was made. The statement is usually more succinct and ordered than the clinical notes, but the
evidence must be given by referral to the latter.
The FME will be allowed to refer to the contemporaneous clinical notes made at the time of the
examination whilst giving evidence. He/she will also be allowed to give evidence from memory.
Care must be taken where this varies from the clinical notes and the FME should be certain that no
confusion has arisen with other cases. Considering the time it takes to come to trial, it is quite
possible that the doctor has seen many hundreds of cases subsequent to the one in question, and any
confusion by the doctor which can be elicited by counsel could invalidate the value of the clinical
evidence.
The rules by which a witness is allowed to refresh memory are encapsulated in the case of R v
DaSilva (1990 1 All ER).
If the contemporaneous notes are lost it may be possible to refer to the statement. The judge in a
criminal trial has a discretion to permit a witness to refresh his memory even after beginning to give
evidence.
For this benefit to be given the judge be satisfied that:
1. The statement was made whilst the events recorded were fresh even if not contemporaneous.
2. The witness can no longer recall the events in question because of the lapse of time since the
event.
3. That the witness did not read the statement before going into the witness box.
4. That the witness wishes to read the statement before continuing.
The witness may then be allowed to refer to the statement in or out of the witness box, but in either
case must do so without communication, and on resuming evidence the statement must be removed
from him.
If the statement were made immediately after the examination, it could be considered to be
contemporaneous, though any discrepancy between the clinical notes and the statement would
increase the potential for doubt as to accuracy. A statement should include everything that is
appropriate to ease the course of justice but should be a considered and carefully constructed
document, and it does not lend itself to hurried preparation.
The question may arise as to contemporaneity of a document or statement, and it may be argued that
there is no hard and fast rule as to when the witness may be allowed to refresh his/her memory. It is
generally accepted that when a long time has elapsed between making a statement, fairly soon, but
not contemporaneously, after the events, the witness should be allowed to refresh his memory from
the statement before giving evidence.
With regard to professional medical witnesses the courts are often very accommodating in allowing
reference to a statement, and in many cases will actually draw the statement into the examination, or
more likely cross-examination. It is important that the form and content of the statement stands
scrutiny in public.
Posture in the witness box is also important. The witness may be asked if he/she wishes to sit. The
choice is open, but do not sit without being invited so to do. There is no need to sit or stand rigidly
to attention, but it is important to stand or sit without slouching or leaning. Such a posture not only
makes it easier to project the voice but also adds to the professionalism of the testimony.
Before reaching the witness box the professional witness should have rehearsed a number of things.
1. Whether the oath or affirmation is to be taken, and if the former, on which deity or authority the
oath will be sworn. If it is more comfortable to recite the appropriate words from memory or from
the printed cards, try and speak to the Court Clerk, prior to giving evidence to agree the procedure in
your particular case.
2. A verbal version of your profile, including who and what you are, your experience and
qualifications. It may be that at the beginning of the examination in chief, counsel will lead you
through this, but you may just be asked to tell the court who you are. A concise rehearsed passage
will immediately indicate that you are professionally prepared and will forewarn the jury that your
testimony will be in a similar state of health.
One difficulty in court is deciding to whom one should speak. It should be the "judges". In a crown
court that includes the jury who judge the facts and in the magistrates court, the bench.
Even experienced expert witnesses can find themselves entering into an exclusive dialogue with the
counsel asking questions, and that should be avoided.
One simple aid to achieve this has been suggested at the Expert Witness Seminar run by Bond-
Solon in London. Their suggestion is to stand with feet firmly pointing towards the judge. On being
asked a question by counsel the body can be partially rotated to present a receptive face towards the
advocate, and on responding the natural position can be resumed, the body swinging back towards
the judge. The limitations of these relatively small movements will usually mean that the response
to the question is projected somewhere between the judge and jury, hopefully satisfying both their
needs.
The voice should be projected, with an increase in volume but not tone if possible.
Due consideration should be given before answering, and the answer delivered in plain English in as
concise and as meaningful a manner as possible. As in statement writing use non specialist language
to translate technical terminology.
If a SWOT analysisf was done on being a witness there may be a tendency to see every question as a
Threat, when in fact each should be considered an Opportunity. The police surgeon is there to serve
justice; questions should be answered truthfully. Do not try to bias the answers to fit in with a
prejudicial view of the court case. It is for the jury to decide the outcome (or the bench).
Barristers are trained for the job, do not underestimate them, if it is not possible to answer a question
simply, say so.
Double questions are a frequent weapon of the advocate, they require clarification or two answers. If
possible give the hidden answer first and the prompted one second; an example follows.
The question asked was thus "you have seen the injuries suffered by the complanant, haven't you
doctor, and without doubt she came off worse in the exchange". A full answer should include the
fact that as the accused was not examined at the time no comparison can be made but, yes you did
see the complainant's injuries which you have described,
Other apocryphal examples are shown below and it must also be recognised that questions are
sometimes phrased as statements; failure to answer plainly may be an opportunity to the advocate.
"wasn't it at 4 o'clock in the morning doctor when you were tired?"
"didn't the examination only take 20 minutes doctor? you were obviously in a hurry"
"the examination took nearly 2 hours doctor didn't it? you must have been unsure of your findings" (Note that
the second "question" in this example was also phrased as a statement).
It is unusual for a competent professional medic to be pressurised in the witness box. If undue
pressure is being felt then an appeal to the justices in the case to allow the evidence to be given
fairly will usually achieve the necessary relief. It is important however to concede a point which has
a right to be adduced.
In most cases the police surgeon as a professional witness will not be party to the whole procedings.
It is not appropriate to start on a monologue introducing items which are irrelevent to the way that
the case is evolving. When the various stages of the examination are finished the doctor should then
stop speaking (hence "shut up"). The one exception relates to the doctor being left with a feeling
that the facts that were being introduced had been done so unfairly, or that a particular relevant
question concerning facts already covered was not asked. It is the responsibility of the professional
witness to bring the judge's attention to this problem. This may result in the jury being expelled
whilst a point of law is discussed. The responsibility of whether or not the presumed omission is
corrected has been passed on to the court and the FME will have behaved properly and fairly.
there is less time to think during the latter.
The old adage of "Dress up, Stand up, Speak up and Shut up" still reigns.
There exists a basis of expectation that the professional man or woman will look the part. That the
quality of evidence given does not depend on twinset and pearls or shirt and tie is irrelevant. The
prejudices of the jury and justices should be recognised and catered for. The forensic witness is not
there to make a political or sociological point. He/she is there to aid the court in the administration
of justice. Suits and ties and smart skirts or dresses or suits worn according to the traditonally
accepted mode for your gender should be the norm.
Be prepared, locate your clinical records in advance.
Arrive at court in plenty of time if possible.
You may be allowed to refresh your memory from your statement before going into court. This
should be done to link the form and structure of your statement with the clinical notes from which it
was made. The statement is usually more succinct and ordered than the clinical notes, but the
evidence must be given by referral to the latter.
The FME will be allowed to refer to the contemporaneous clinical notes made at the time of the
examination whilst giving evidence. He/she will also be allowed to give evidence from memory.
Care must be taken where this varies from the clinical notes and the FME should be certain that no
confusion has arisen with other cases. Considering the time it takes to come to trial, it is quite
possible that the doctor has seen many hundreds of cases subsequent to the one in question, and any
confusion by the doctor which can be elicited by counsel could invalidate the value of the clinical
evidence.
The rules by which a witness is allowed to refresh memory are encapsulated in the case of R v
DaSilva (1990 1 All ER).
If the contemporaneous notes are lost it may be possible to refer to the statement. The judge in a
criminal trial has a discretion to permit a witness to refresh his memory even after beginning to give
evidence.
For this benefit to be given the judge be satisfied that:
1. The statement was made whilst the events recorded were fresh even if not contemporaneous.
2. The witness can no longer recall the events in question because of the lapse of time since the
event.
3. That the witness did not read the statement before going into the witness box.
4. That the witness wishes to read the statement before continuing.
The witness may then be allowed to refer to the statement in or out of the witness box, but in either
case must do so without communication, and on resuming evidence the statement must be removed
from him.
If the statement were made immediately after the examination, it could be considered to be
contemporaneous, though any discrepancy between the clinical notes and the statement would
increase the potential for doubt as to accuracy. A statement should include everything that is
appropriate to ease the course of justice but should be a considered and carefully constructed
document, and it does not lend itself to hurried preparation.
The question may arise as to contemporaneity of a document or statement, and it may be argued that
there is no hard and fast rule as to when the witness may be allowed to refresh his/her memory. It is
generally accepted that when a long time has elapsed between making a statement, fairly soon, but
not contemporaneously, after the events, the witness should be allowed to refresh his memory from
the statement before giving evidence.
With regard to professional medical witnesses the courts are often very accommodating in allowing
reference to a statement, and in many cases will actually draw the statement into the examination, or
more likely cross-examination. It is important that the form and content of the statement stands
scrutiny in public.
Posture in the witness box is also important. The witness may be asked if he/she wishes to sit. The
choice is open, but do not sit without being invited so to do. There is no need to sit or stand rigidly
to attention, but it is important to stand or sit without slouching or leaning. Such a posture not only
makes it easier to project the voice but also adds to the professionalism of the testimony.
Before reaching the witness box the professional witness should have rehearsed a number of things.
1. Whether the oath or affirmation is to be taken, and if the former, on which deity or authority the
oath will be sworn. If it is more comfortable to recite the appropriate words from memory or from
the printed cards, try and speak to the Court Clerk, prior to giving evidence to agree the procedure in
your particular case.
2. A verbal version of your profile, including who and what you are, your experience and
qualifications. It may be that at the beginning of the examination in chief, counsel will lead you
through this, but you may just be asked to tell the court who you are. A concise rehearsed passage
will immediately indicate that you are professionally prepared and will forewarn the jury that your
testimony will be in a similar state of health.
One difficulty in court is deciding to whom one should speak. It should be the "judges". In a crown
court that includes the jury who judge the facts and in the magistrates court, the bench.
Even experienced expert witnesses can find themselves entering into an exclusive dialogue with the
counsel asking questions, and that should be avoided.
One simple aid to achieve this has been suggested at the Expert Witness Seminar run by Bond-
Solon in London. Their suggestion is to stand with feet firmly pointing towards the judge. On being
asked a question by counsel the body can be partially rotated to present a receptive face towards the
advocate, and on responding the natural position can be resumed, the body swinging back towards
the judge. The limitations of these relatively small movements will usually mean that the response
to the question is projected somewhere between the judge and jury, hopefully satisfying both their
needs.
The voice should be projected, with an increase in volume but not tone if possible.
Due consideration should be given before answering, and the answer delivered in plain English in as
concise and as meaningful a manner as possible. As in statement writing use non specialist language
to translate technical terminology.
If a SWOT analysisf was done on being a witness there may be a tendency to see every question as a
Threat, when in fact each should be considered an Opportunity. The police surgeon is there to serve
justice; questions should be answered truthfully. Do not try to bias the answers to fit in with a
prejudicial view of the court case. It is for the jury to decide the outcome (or the bench).
Barristers are trained for the job, do not underestimate them, if it is not possible to answer a question
simply, say so.
Double questions are a frequent weapon of the advocate, they require clarification or two answers. If
possible give the hidden answer first and the prompted one second; an example follows.
The question asked was thus "you have seen the injuries suffered by the complanant, haven't you
doctor, and without doubt she came off worse in the exchange". A full answer should include the
fact that as the accused was not examined at the time no comparison can be made but, yes you did
see the complainant's injuries which you have described,
Other apocryphal examples are shown below and it must also be recognised that questions are
sometimes phrased as statements; failure to answer plainly may be an opportunity to the advocate.
"wasn't it at 4 o'clock in the morning doctor when you were tired?"
"didn't the examination only take 20 minutes doctor? you were obviously in a hurry"
"the examination took nearly 2 hours doctor didn't it? you must have been unsure of your findings" (Note that
the second "question" in this example was also phrased as a statement).
It is unusual for a competent professional medic to be pressurised in the witness box. If undue
pressure is being felt then an appeal to the justices in the case to allow the evidence to be given
fairly will usually achieve the necessary relief. It is important however to concede a point which has
a right to be adduced.
In most cases the police surgeon as a professional witness will not be party to the whole procedings.
It is not appropriate to start on a monologue introducing items which are irrelevent to the way that
the case is evolving. When the various stages of the examination are finished the doctor should then
stop speaking (hence "shut up"). The one exception relates to the doctor being left with a feeling
that the facts that were being introduced had been done so unfairly, or that a particular relevant
question concerning facts already covered was not asked. It is the responsibility of the professional
witness to bring the judge's attention to this problem. This may result in the jury being expelled
whilst a point of law is discussed. The responsibility of whether or not the presumed omission is
corrected has been passed on to the court and the FME will have behaved properly and fairly.
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