The issue of whether forensic clinicians have to testify, and if so, who determines whether they testify as a fact witness or an expert witness is one that we discuss regularly in these circles. I’ve written about it before; nothing in that post has changed. What I want to emphasize is that there are many areas in which clinicians and program managers lack control when it comes to testimony. But there is plenty over which you do have control. I would submit that in anticipating future testimony, a program has the ability responsibility to:
- Ensure that baseline education of all staff meets the minimum standards of practice as agreed upon in the field (to the extent that there is consensus, and understanding that some areas of practice lack consensus);
- Ensure that policies and procedures are in place, regularly reviewed, and again, consistent with the standards of practice as agreed upon in the field (see caveat in #1);
- Ensure that practices within the program have both a clinical rationale and an evidence base to support their use, particularly where consensus or guidance is lacking;
- Ensure that there is a quality assurance process in place so that if any mistakes were made, or a clinician deviated from policy, that issue is identified up front and the program has the opportunity to learn and grown from that issue;
- Ensure that the program’s medical director and institution’s administration understand that testimony is a part of practice and staff need to be compensated for their time*;
- Ensure that testimony prep happens–the exact questions may be unknown, but one can certainly anticipate the foundational questions and practice answering them ahead of time;
- Ensure that testimony is peer-reviewed–program managers and senior staff members should go to court with less experienced staff and provide feedback on that testimony afterward (please–not while still at the courthouse). But seriously–no one is so experienced that they can’t afford some peer-review on their testimony.
- Ensure that if there are opportunities to observe the testimony of someone more experienced, staff take advantage of it and go. Testimony is not something one learns during the mock trial portion of the SANE/SAFE/SAMFE course. That is the place one is oriented to testimony. Honing testimony skills happens over the course of years, and there’s no better way to improve than to watch and to do.
I’m certain I haven’t covered everything, so by all means, add your own feedback in the comments. I love these conversations.
*It is not the responsibility of the prosecutor’s office to pay you for your time on the stand (or prepping to take the stand) unless they are hiring you as an expert on a case where you are not the treating clinician. If you’ve worked out this agreement with them in your community, fine, but it’s still not their responsibility. It should absolutely be the responsibility of the clinical program, and if you are spending your money on shiny new camera systems or other equipment, and not paying staff for expected activities, like continuing education and testimony, that is a fail in my book. Yep, I said it.
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