In the courtroom, medical witnesses are held in high esteem by judges and juries. Medical providers are generally considered to be neutral, professional, and highly skilled; therefore, their testimony is given significant weight by the finders of fact in the legal system. One of the advantages of SANE programs is the willingness of nurses to testify in cases of sexual assault, and it should be an expectation of the role for all SANE nurses.
Types of Court Testimony
SANEs may be asked to testify in many different settings. It is important to know what is expected from each setting. This requires working closely with the attorney who has asked the SANE to testify.
Types of settings include—
Grand jury proceedings
SANE may be called to testify as either an expert or a fact witness. In either case, the SANE should testify clearly that a SANE’s duty is to provide comprehensive health care to patients, and evidence collection is a service to the patient.
SANEs as Fact Witnesses
A “fact witness” is a witness who testifies only about what they did and what they observed, and expresses no opinions in the case. A fact witness may also be asked questions about typical protocols used for the sexual assault exam, so the SANE should be very familiar with not only the exam done in the case, but also have a good understanding of the protocols that apply and the reasons for those protocols.
SANEs as Expert Witnesses
The definition of an “expert witness” in federal court, and in the vast majority of state courts, is a person with more knowledge and experience than an average juror on the subject matter. Education, training, and experience—or any combination of these three things—may be used to establish a witness as an expert for the case. This means that every SANE can be qualified as an expert witness on the subject of sexual assault exams and patient behavior. The primary difference between fact witnesses, who only testify about what they have seen, heard, or experienced, and expert witnesses is that in addition to this, expert witnesses educate and give their opinions to the judge or jury.
The SANE who is testifying as an expert witness should be prepared to testify about these different areas of specialized knowledge:
The SANE's qualifications as an expert witnesses, including education, training, any prior clinical experience, and whether it is general nursing or SANE experience.
Best practices for performing medical forensic examinations.
What happened during the sexual assault examination, explaining the presence or absence of findings.
Victim behavior and common victim presentation at the exam.
Mechanisms of injury and wounds.
Opinions based on the findings of the examination.
In addition to providing testimony, SANEs may be asked by attorneys to provide expertise by reviewing medical records and giving opinions.
Working With Prosecutors and Defense Attorneys
It is important for SANEs to understand that their role as a patient advocate does not conflict with their role as an impartial witness at a trial. The nurse who performs a medical forensic exam should be willing to talk to both prosecutors and defense attorneys about their examination. One good approach for a SANE program is to have a policy that encourages SANEs to meet with the attorneys on both sides of the case at the same time. When the attorney who is calling the SANE as a witness requests a meeting, include the attorney on the other side of the case. This way, both sides learn what they need to know about the upcoming SANE testimony, and there is full transparency for both attorneys. Nurses should consult with hospital or agency legal counsel before talking to outside attorneys to make sure they have proper consent for release of information from the patient. Usually, attorneys on both sides of a case receive a copy of the examination report. If that is true, any information in the report can be discussed. If the nurse has additional information about the patient, that is not included in the report, consent from the patient to disclose that information may be required.
SANE programs should make sure that nurses who are called to testify meet with the attorney who has requested their testimony before the trial or court hearing.
Prior to the trial or court hearing, the SANE should know—
Is the SANE testifying as a fact witness or expert witness?
What are potential subjects and questions that will be asked during the testimony on direct examination?
Does the SANE need to provide any records or photographs?
When will the SANE be expected to testify?
Will the SANE be expected to listen to other testimony?
What is likely to be asked on cross-examination by the opposing attorney?
Preserving Confidentiality of Patient Information
SANEs should respect the privacy and confidentiality of all patients. SANEs must strictly follow all HIPAA rules and any of the SANE’s employer’s protocols regulating the disclosure of patient information.
SANEs must not discuss a patient’s case with colleagues, other attorneys, or any other third party unless given permission to do so by the patient and by the attorney calling the SANE as a witness (if the SANE is under subpoena).
When a SANE receives a subpoena for patient records, the SANE should immediately contact the attorney for the SANE’s employer and seek guidance as to how to respond. Even if a valid subpoena for medical records is provided, there may be a duty to contact the patient to allow them an opportunity to challenge the subpoena before the records are released.90
Many courts have procedural rules that impact how and under what circumstances SANE's records must be provided. Some courts may require an in camera review by the court, which means that a judge must review the records to rule on what must be disclosed and to whom the disclosure must be made. The SANE may also be required, in some jurisdictions, to notify the patient that their medical records have been subpoenaed.
Working as an Expert Witness for Defense Attorneys
There is no prohibition against SANEs acting as expert witnesses for the defense. SANEs who are part of a team may have policies about testifying against other team members. Peer and case review are essential parts of a SANE program. Nurses need to be able to discuss and critique each other's work, with an expectation that the information will be kept confidential. (See section 9.2 Peer Review.) Working as an expert for both prosecution and defense demonstrates that the nurse is not inherently biased toward any specific side.
The Importance of Ethical Testimony
The SANE should keep in mind at all times that their testimony is public record and may be used by others on the issue of the credibility and competency of the SANE. As a citizen and as a professional with special training and experience, the SANE has an obligation to assist with the administration of justice when called upon to do so.
A SANE must not become an advocate or a partisan in the legal proceeding, and should work to maintain neutrality and objectivity.
A SANE should be adequately prepared and should testify honestly and truthfully.
The attorney for the party who calls the SANE as a witness should be informed of all favorable and unfavorable information developed by the SANE's evaluation of the case.
It is unethical for a SANE to accept compensation that is contingent on the outcome of the litigation.
A SANE testifying as an expert witness should review relevant medical and scientific data carefully and thoroughly before offering an opinion. If a SANE believes that the information provided is incomplete or inaccurate, the SANE should request additional information or clarification from attorneys or other relevant parties before agreeing to render an opinion. A SANE should never give an opinion that is outside the SANE’s area of expertise or is without an adequate medical basis.