The Clinician In Court

CLINICIAN IN COURTWHAT IS AN EXPERT WITNESS?WHY EXPERT EVIDENCENeither prosecutors nor magistrates possess all knowledgeEven if they do possess that knowledge it is not permissible to use this knowledge without it being PROVENEXPERT EVIDENCEOPINION evidence is generally excluded due to its irrelevance, as the court is as able to draw inferences from the facts as is another person.EXPERT OPINION evidence will be allowed when:Expert witnesses are by reason of their special knowledge and acquired skill, better qualified than the court to draw proper inferences;The expert can guide the court to a correct decision on questions falling within the expert’s fieldMEDICAL EXPERTISEFINDINGS OF FACTYOUR PERSONAL OBSERVATIONSEXPERT OPINIONSTHE INFERENCE YOU DRAW FROM THE FINDINGS OF FACTCHAIN OF EVIDENCEFor any expert evidence to be admissible it must relevant:Therefore must establish a chain of evidenceEach link between the crime scene, the perpetrator and the court process of evidence submission.DOCUMENTARY EVIDENCE AND THE J88In the matter of Cremer v AfdelingsraadVryburg1974 (4) SA 252 (NC) the court stated that a medical report completed by a doctor, for evidence purposes is not a public document. Hence as it is a private document the state will have to prove that it is Authentic, Original and it’s Contents.DOCUMENTARY EVIDENCE: ORIGINALThe rule in SA law is that the original version of the document must be submitted to court.Exceptions:Where corrections to the content are admitted (S v Makoba1980 (1) SA 99 (N).Where there is an acceptable explanation for the original not being available. (S v Ngezi1986 (2) SA 244 (E)The original has been lost or destroyed (S v Zungu1953 (4) SA 660 (N).It is impossible or inconvenient to produce the original (S v Zungusupra).The document is in the possession of the opposing party. (S v Miles 1978 (3) SA 407 (N) DOCUMENTARY EVIDENCE: AUTHENTICCan be proven by the author of the documentSomeone in who’s lawful control the document is,Someone who signed as a witnessThe person who can identify the signaturesomeone who found the documentDOCUMENTARY EVIDENCE: CONTENTSWhen a party wishes to prove the contents of a document it should prove the truthfulness of the contents… And proving the contents relates primarily to proving authenticity. Truth of contents can be done by way of viva voce evidence212 statementHearsay evidenceEVIDENCE LED IN ADULT RAPE CASESEvidence of victimFirst report witnessEye witnesses or other witnesses that may have observed the victimWitnesses testifying to chain of evidence e.g. police officersExpert EvidenceTrauma experts: e.g. Rape Trauma Syndrome other forms of trauma to explain behaviour in court e.g. regressionOffender Experts: e.g. CriminologistsForensic Sciences Evidence: e.g. DNA, Finger and foot prints, tyre tread, facial and voice, geology experts etcMedical Evidence: e.g. doctors, forensic nurses, nursesMEDICAL OBSERVATIONSFindings of factInjuries sustainedObservations of Mental conditionObservations of Emotional conditionCondition of clothingPhysical appearance Tanner Stage extremely important: at the time of report what did victim look like cases may take long to finalise: therefore tanner sets the sceneAge and if possible developmental levels of the childA COMPLETED J88IS INVALUABLEGood referenceCompleted chainIndicative of thorough examinationReflection of your expertiseEstablishes a good basis for your expert opinionFinding of fact cannot go challenged in court unless someone is called to testify that at the time of your medical examination he /she witnessed otherwiseCan be used to get other inferencesQUESTIONS INCOURTWhat type of penetration are the injuries consistent with?Are these injuries always present in women who have been sexually abused: Variants to your expertise (number of examinations conducted in career)What are the significance of the injuries?The age of the injuriesQUESTIONS IN COURTSignificance of oestrogen Types of hymen and the significance thereofSexually Transmitted diseases, your J88 could be the beginning of the chain and you could testify to its significance State what is the significance of STD’s in children : is it indicative of some form of abuseYour opinion and the basis for your opinionCONCERNSIncomplete J88Broken Chain of EvidenceYour registration number and contact detailsThe Section 212 statementAssumptions that court personnel know medical terms used (including the anatomy)Childhood development often overlooked (will touch on in the child lecture)The chronology of and the actual events in children often recorded as an adult would speakUse the exact words and if an interpreter is used details to be includedCONCERNSMake arrangements with your prosecutor/institutional arrangementsConsultations with prosecutors is valuable: preparation in setting the trend of the defenceBe positive and you will have a positive effect on your audienceRemember that you are the expert and you know more.Be confident: You are the expertYou may ask questions for clarityYou MUST substantiate Be assertiveCROSS EXAMINATION TACTICSTactic: Leading Questions (Questions that suggest the answer)Tactic: An aggressive and intimidating approachTactic: Overly Kind and flattering approachTactic: sarcasmTactic: DistortionPurpose: To lead the witness to a specific answer and possibly confuse the witnessPurpose: To get the witness to lose composurePurpose: To give the witness a false sense of securityPurpose: to create uncertainty and distract the witnessPurpose: To confuse the witness and place contradictions on recordTIPS FOR THE EXPERT WITNESSStick to the findings and opinions that fall within your area of expertiseBe preparedOwn your personal space in court: be confidentListen attentively to the questions be asked in light of the aforesaid tacticsDo not guess for an answer: you may consult references/ask for adjournment to obtain information/simply say I do not knowTIPS FOR THE EXPERT WITNESSBe aware of the “I do not know” response as it will invariably be used to challenge your expertise on the topic. Body language: you should exude confidence and maintain eye contactDo not become hostile with the cross examiner as it may be used to question your objectivity.Do not show that you are disheartened or disparaged: this may be used to argue that you were not a confident hence expert witness instead create the impression of visible control and effectiveness.THANK YOU& GOOD LUCKAdv Brandon LawrenceSenState Adv: Gauteng Provincial ManagerT: 012 845 6132F: 012 843 2132bglawrence@npa.gov.za084 427 4785