Hi everybody. Thank you all so much for being here and attending today's webinar. This webinar is being brought to you through IFN's Technical Assistance Project and we're very grateful to have Patty Powers with us today for this webinar. Okay. Just a couple of housekeeping items before we start today. Today's webinar is possible due to funding provided through the Office on Violence Against Women and the presenters of today's webinar have no financial relationships with ineligible companies to disclose. If you have multiple people watching today's webinar with you, please send a list of all attendees that have not formally registered for the webinar to safetya.forensicnurses.org and share the evaluation link with them. As a benefit of membership, IFN members are eligible to receive 1.5 contact hours for this continuing education activity. The International Association of Forensic Nurses is accredited as a provider of continuing nursing professional development by the American Nurses Credentialing Center's Commission on Accreditation. For IFN members to obtain CE for this activity, they are asked to attend the webinar in full and complete the post-activity webinar evaluation to obtain a certificate documenting the contact hours for this activity. For non-IFN members, with the completion of the post-activity webinar evaluation, you will receive a certificate of attendance. We will be placing the evaluation link in the chat close to the end of the webinar. Additionally, you will receive the evaluation link after the webinar has ended. And today's webinar is being recorded and will be available on the safetya website for viewing at a later date. IFN will send an announcement to all registered attendees once the webinar is available for viewing. And I wanted to just take a second to introduce myself. I'm Lacey Smith. I'm a forensic nursing specialist here at the International Association of Forensic Nurses, and I've been a forensic nurse for about six years now. And the majority of my practice has been in children's advocacy centers and sexual assault centers in rural South Georgia. And I want to turn it over to Patti to introduce herself. Thank you so much, Lacey. It sure is a pleasure to be here with you today. I'm Patti Powers. I'm a senior attorney advisor with Equitas. I've been with my colleagues at Equitas for just about nine years now. And prior to joining my colleagues here, I was a senior deputy prosecutor in Washington for 27 years. I supervised our sexual assault and domestic violence units three different times during my tenure and had the opportunity, with the support of many multidisciplinary professionals, including the clinicians that I was privileged to work with, to advance a high volume of cases to justice in criminal litigation. While I was still a prosecutor, I was appointed as an HQE Heilig expert for the United States Army at CID, the investigative division. And I had the chance also to consult on sexual assault and domestic violence cases in that regard. I mentioned that because I've had the opportunity to learn so much in my practice as a prosecutor, as well as a presenter, and hope to share that with all of you today. This is our graphic indicating some of the really important dimensions of Equitas, the innovation that we believe to be so important. Our effort is to sustain effective practices and promote systemic change to advance justice for all survivors. We present trainings on a local, regional, statewide, national, and sometimes international basis, and also curate a number of resources, many of which can be accessed on our website. We try to make sure that the guidance that we provide is practical, customizing strategies that really are tailored to the needs of practitioners. We work with prosecutors, sometimes medical professionals, law enforcement professionals, advocacy professionals, and many others in the areas of sexual assault, domestic violence, human trafficking, and stalking. This really summarizes some of what we do. As I mentioned earlier, there are several resources that are available on our website or by request. We have statutory compilations, which really can be an asset to take a look at the laws of other jurisdictions, as well as your own jurisdiction. And we're available 24-7 for consultation. It's like being back in the prosecutor's office, but it's an important resource, because not always do issues crop up during regular business hours, and we're very proud to always have an attorney advisor available. I've already mentioned our training events, many of which will be provided directly on our website, indicating training resources, and also very frequently will go out to our listservs as well. We work with many partnerships and initiatives, which are really important to the resources we're able to curate and provide, as we're able to stay in touch, in tune, with many developments in various areas of law throughout our country. The Fair Use Doctrine, I just went over that slide. Since we draw from the expertise of many other professionals, it's governed by the Fair Use Doctrine, which restricts the dissemination of this work. Thanks, Patty, and thank you so much for being here with me today. I'm really excited to get to present this webinar with you. Also wanted to go over our learning outcome for this webinar. At the conclusion of this activity, learners will have a better understanding of the testimony process and the roles of the attorney and the clinician in this process. Participants will be able to more effectively collaborate with each other to enhance the testimony process and identify ways that the Testimony Toolkit can facilitate this collaboration within their own communities. I want to take a second here just to talk about the Testimony Toolkit and why it was created. I think it's really important to note that the Testimony Toolkit was really created out of discussions and TA requests that have come in from clinicians and from attorneys related to the anxiety that surrounds court testimony. I think all of us can relate to that anxiety. Our goal with this toolkit was to help really prepare the clinician and the attorney for that collaboration with courtroom testimony and help alleviate some of that anxiety. The audience for this webinar and for the Testimony Toolkit is clinicians that will be performing the medical forensic exam and testifying in court, as well as attorneys that will be working with clinicians, whether that's as fact witness or as expert witnesses. I think what really is valuable about the Toolkit is that it really allows for an interaction to give a basis for clinicians and prosecutors and other attorneys to work with each other and also to learn from each other. I went through and put these slides in just so that you all could see the Table of Contents, the parts of the Testimony Toolkit that we're going to be referencing while we talk here so that you can go back and reference things that we've said while you're looking through the document as you begin to use it. It all begins when you as a clinician receive a subpoena. Subpoenas are generally issued by attorneys in the case. If you're involved in criminal litigation, the subpoena that you may receive will come from the prosecuting attorney. When you receive the subpoena, the first thing that you're going to note is that there's a date on the subpoena and there's language that basically requires your attendance. This may come as a surprise if you haven't been previously contacted by the prosecutor or another attorney who is requiring your presence. The important thing to know, though, when you see that date, it may or may not be the actual date of the hearing or the trial. In most cases, you still are going to have an opportunity to discuss that date with the prosecutor or other attorney requiring your presence. It's so important to provide information to the prosecutor or other attorney of what your scheduling needs are. You may have a work schedule that is not flexible. There may not be other members of your team available to cover for you. It's really important to ensure that information is shared with the prosecutor so that they can be as flexible as possible in working with you so you'll be able to testify at a convenient time. Sometimes it may be a defense attorney, and we're talking about criminal litigation now. It may be a defense attorney who is issuing the subpoena and requiring your attendance in court. Your response as a medical professional is going to be the same as it would be if you were subpoenaed by the prosecutor. A subpoena is a court order requiring attendance and is something that is respected by all clinicians. It is a good practice to notify the prosecutor if you're subpoenaed by the defense. This is information that can be shared with the prosecutor, and sometimes there may even be a case where you receive a subpoena from both the prosecutor and the defense attorney. This is information that should be shared. If this is a subpoena by the defense attorney, you may still wish to meet with the prosecutor who may also want to meet with you. This is perfectly appropriate in those cases. Some materials that the prosecutor is likely going to want for you to provide for them for criminal proceedings. Of course, records of all the care that you've provided as the clinician. You may have already given some of those records to law enforcement, and then the prosecutor may have some of those records already. But it is really important to talk with the prosecutor and make sure that they have copies of all of those medical records. And that includes even those records that might not have been requested, parts of the record that might not have been requested, making sure that the prosecutor knows about all the materials that are included in the medical record, including any handwritten materials or photographs. Also important that you provide the prosecutor with your resume or your CV. And that means that we have to keep our resumes and CVs up to date and ready to provide those to that prosecutor when they need it. Also, sensitive photographs. And we'll talk a little bit more about this on the next slide. But important to know policies and procedures in place for sensitive photographs and those policies and procedures that are in place for sharing medical records to make sure that we're following our policies and procedures when we're sending those records to the prosecutor. There certainly are some important privacy considerations that we need to discuss. In terms of presenting evidence obtained from intimate photographs, it's really important to strongly consider the use of illustrations or drawings for trial testimony, rather than presenting these anogenital photographs as evidence. Bear in mind that most members of the community who are on juries are not going to have medical expertise or a medical background. And by using an illustration of a body that the witness on the stand is going to be in the best possible position to explain to the jury where that injury is, as well as the context of the rest of the body. It's really important also to maintain patient privacy. And that means making sure that the security of photographs is protected. Many times it's noted in the medical record that there are intimate body photographs, but those aren't necessarily provided in discovery. Defense counsel and the prosecutor may have an opportunity to view them. This is something that is critical to your work as clinicians, protecting patient privacy, as well as a prosecutor's responsibility to protect the privacy of the victim in litigation to the fullest extent possible. The next thing that we want to talk about is meeting with the prosecutor to prepare to testify. For the clinician, of course, it is so important that we have reviewed our documentation, photographs, and any other medical records before we meet with the prosecutor, so that we can discuss any issues. Also important to remember that although, yes, the clinician is called to testify in that criminal proceeding, our main purpose is that we provided medical care and treatment for our patient. Also important to remember that although, yes, the clinician is called to testify in that criminal proceeding, our main purpose is that we provided medical care and treatment for our patient. We want to prepare to explain any medical terminology to the prosecutor while we're preparing and also prepare to explain that medical terminology to the jury. Also, I think I already said to advise the prosecutor of any issues with the examination as you go through and review your documentation. If the clinician notices any kind of issue, anything that you might want to discuss with the prosecutor ahead of time, anything that might have been missed or discrepancies with dates, times, anything like that, you would want to go ahead and be prepared to discuss that so that the prosecutor can understand exactly what the issue might be. And in turn, the prosecutor has responsibilities also. Everyone has busy schedules, clinicians and also prosecutors as well as other attorneys. But it's so important to everyone that we try to meet as early as possible, so that we're in a position to discuss what the status of this case is in litigation, and further to meet as early as possible. And to talk about scheduling, ensuring that the time and date of your testimony works for you and try to extend necessary flexibility to fellow professionals. Another very important part of a prosecutor's meeting with a clinician is going to be to review the questions that the prosecutor is planning to ask you. And if a clinician during this discussion certainly has an opportunity also to suggest additional questions that may be asked. As clinicians, you're the medical professionals. Prosecutors may not have the depth of your experience or insight into the issues presented by your care for your patient. So although a prosecutor is going to review their questions with you, you may want to suggest additional questions given your knowledge of the case. A prosecutor is also going to anticipate what defense counsel may ask you during cross-examination. Many times, prosecutors are very familiar with what are going to become the central issues in litigation, and so they're going to want to advise you of anticipated questions so that you can prepare for those questions when they're directed to you. Patty, we had a question in the Q&A. I thought this would be a good time to address that question. Andy asked, what if the prosecutor has not contacted you, but the defense does? Okay, I can provide some insight into that. If you haven't heard from the prosecutor, I think what you should consider doing is contacting the prosecutor. Many times, a prosecutor may be in court, but there are staff members within their offices who are able to get that message to the prosecutor that you'd like to have contact. And prosecutors are also going to want to meet with you as well as meet with other witnesses so that they can best prepare for your testimony as well. We are going to briefly talk about some topics to discuss when the clinician and prosecutor are meeting together. Patty, if you want to take a couple of these and I can take some. For sure. One definite subject that's going to come up is the process of testimony. And the prosecutor or other attorney calling you is going to talk about the questions that you're going to be asked, possible cross-examination questions, as well as whether or not they would like you to remain in attendance for any reason after your testimony. Sometimes in litigation it becomes necessary to recall a witness, but the prosecutor will know that there may be a possibility they'll discuss that with you. We'll be talking a little bit later on about how you might be qualified as an expert witness in that litigation. But this is a subject also that's going to come up in your initial meeting with the prosecutor, whether you're going to testify as a fact witness, as a clinician, or whether you're going to be called as an expert. And we'll talk about some of those details in just a few minutes. Trial objections. They can be startling when you're answering a question and an attorney rises and objects. That objection is going to be phrased sometimes in terms of relevancy, whether the testimony is material, and a number of other different reasons for an objection. At that point you should stop testifying and wait for the judge who's going to hear the argument of the attorneys and who then will rule. If that objection is overruled, you're going to be allowed to continue your testimony. If it's sustained, that means that particular topic of testimony should not be explored. Sometimes there is going to be a pretrial before the trial. The prosecutor or the other attorney calling you is going to tell you about any pretrial rulings that might impact your testimony. Things that, for example, a judge has ruled cannot come up in your testimony. That information is going to be shared with you. Sometimes demonstrative aids are going to be used. I spoke just a moment ago about those illustrative body diagrams, which can be very effective in conveying genital injuries and where they're placed, where they occur within your patient's body. That's going to be discussed with you in advance as well and shown to you. As medical professionals, you can certainly comment on that. Sometimes you might even be asked to provide your own demonstrative aid. These are just a few of the areas that are important. I also want to mention, again, potential defenses. The prosecutor is very close to the case that they've been working on in litigation and pretty much is going to be able to localize those issues and explore them with you in advance of your testimony. Your concerns as clinicians are extremely important to prosecutors. Prosecutors want to learn from you as medical professionals so that they can do their very best work for the victim, your patient, in this litigation. Also here, important for the clinician to discuss the patient's medical history. If there's anything in that medical history that you think is very pertinent, any medications or past procedures, anything like that you really want the prosecutor to know about, very important to discuss beforehand. Anything about your photographs or reports that is important for the prosecutor to know, any issues with photographs or reports. There are so many avenues that you can go down when thinking about those photographs and reports. And another just little thought that I had about demonstrative aids. I think I've seen in the past that there are times when maybe a speculum or an unused evidence kit might be emitted as a demonstrative aid. If there's something that you can do if there's something that you as the clinician feel would be important for you to use during your testimony, that would be the time to discuss it ahead of time to really weigh the pros and cons of using those types of demonstrative aids throughout the testimony process. Now in this part of the presentation, we're going to move on to talking about actually testifying. Lots of good content here. Jumped. Okay. Technical difficulties with ours. There we go. Some things that the clinician will likely testify about, of course, the the process of the medical forensic exam. And I think it's really important that although we feel the clinician feels like I know the process of that medical forensic exam, I can talk about that in my sleep. And likely we all can really practicing that out loud and preparing to explain the exam process in a way that the jury will be able to understand is so important. Being able to use terminology that a person who has no medical training is able to understand really just makes it more relatable. Any observations of the patient during the exam, specifically related to their demeanor when they're talking about their assault history, any statements made by the patient, especially any statements that are documented in quotations, things that the patient says that are very important or have in the clinician's mind a great impact on what they're telling you. Of course, likely testify about photographs, any photographs taken, your normal process for taking photographs and being able to explain why certain things are photographed and why certain things may not be. The process of evidence collection, the clinician should be able to explain their typical process for collecting evidence, the actual collection, packaging, sealing and storing. It's been my past experience that I've been presented with my sexual assault kit that I collected and been asked if this was the kit that I collected, if this is my signature and things of that nature. And of course, the chain of custody process, how chain of custody was maintained, and if there's any issues with the chain of custody, being able to explain that. Patty, you're muted. Yes. Prosecutors are not going to ask you about an opinion as to whether or not a sexual assault occurred or whether there was credibility associated with your patient. These are not permissible questions, so you're not going to be asked that. These are questions essentially that are left to the jury in their determination in the case. So we're going to talk, as I mentioned earlier, about the difference between a fact witness and an expert witness. And we're going to discuss this in a really important context because as medical professionals, you do have expertise, regardless of whether you're called for fact purposes or whether you're qualified as an expert. With regard to a fact witness, that is going to be an opportunity to provide information about the care that you provided to your patient. It's also going to include references to the observations that you made while providing care because that's part of your work, as well as conducting the medical forensic examination. If you are not qualified as an expert, you still are going to be asked about your professional qualifications, your educational background, and your clinical experience that you have that allows you to perform the work that you do for your patient. With regard to fact witnesses, there generally is not a requirement to present testimony at a pretrial hearing. But we never say never because there may be an issue related to your testimony that the court does need to preview at pretrial. But the prosecutor is going to explain all of this to you in that very important first meeting that you have. If you're called to testify as an expert, generally you're still going to talk about the care that you provided for your patient, your observations about their demeanor, the medical evaluation that you performed. You're still going to talk about that, but there may be additional questions after you're qualified as an expert. Sometimes attorneys are going to do that qualification at a pretrial hearing before the trial even comes up. Sometimes attorneys, with the permission of the court, may do that at the trial but outside of the presence of the jury. It's important to know though that once you're qualified as an expert, it's very important for prosecutors to still ask you those same questions in the presence of the jury so that they can come to know your expertise. So they know about your educational background, your clinical experience, whether or not you've authored any articles, what your role is in peer review. This is all information that the jury needs as well. Ultimately, as an expert, you may be asked to provide your opinion based upon your training and experience relevant to whether or not the history provided by your patient is consistent with your examination and the findings or absence of findings. This is an opinion question that can be asked in many different jurisdictions. And I think Patty did a great job of covering all of the nuances of what the clinician might testify about as a fact witness versus an expert witness. And breaking this down a little bit, you're going to be asked questions that really go back to your curriculum, your CV or your resume. And so this is a good opportunity for Lacey and I to really accentuate how important it is to keep that up to date. We all know the feeling of doing many trainings or attending many conferences and then not having a chance to put them on our CV or resume. And then we're called to testify in court. So there's a lot of work that goes into updating that CV. To the extent that it's possible, it's really a good practice to keep your CV updated. You're going to be asked about your educational background, the clinical experience that you've had. You may also be asked about your knowledge of relevant research, if this relates to a specific issue in a case. And whether you've been previously qualified as an expert, that doesn't really make a difference. You can still be qualified during this testimony. So even if you're asked a question, if you've previously been qualified as an expert and you have not, that still does not preclude your opportunity to be qualified as an expert in this proceeding. When the prosecutor is preparing with you for your testimony as an expert, they're going to review with you all of the qualification questions that are going to be asked so that you'll have a chance to go back to your resume or CV and refresh your memory as to all of the aspects of training that you've received and many of which you've also provided to fellow professionals. They're also going to talk about what questions they believe might be asked on cross-examination. Remember that the prosecutor and the defense attorney have likely also been involved in pretrial and the prosecutor is developing a sense of issues that the defense attorney might be choosing to surface during your examination. And so they're going to discuss that with you. With your help as medical professionals, what prosecutors want to do is determine the best possible questions to ask you that allow you to describe the care that you provided for your patient. And it's so important and something that we emphasize to prosecutors as well. It's important to refer to your work as work you do for your patient. You're still a medical professional, even though you're testifying in criminal litigation. If there's a defense expert who's going to be called, the prosecutor will have received a report from the defense expert or will have had an opportunity to speak with that expert and is going to potentially review information that the expert provided so that you can help them prepare for that examination critically. If there are pretrial rulings and if you were not involved in the pretrial, the prosecutor is going to want to discuss with you any rulings that might impact your testimony. As an example, there may have been what's called a motion in limine to restrict testimony about a certain area of a patient's medical history. For example, if the judge has ruled on that and has indicated that portion of the medical history cannot be presented, the prosecutor is going to let you know that. Generally, questions will not be asked about that area, but if anyone does ask a question that's been restricted in scope during that pretrial examination, there'll be an objection, which brings that to the court's attention. If you're qualified outside of the presence of the jury, whether it's at a pretrial or maybe even during the trial with the jury excused, the prosecutor is going to repeat those qualification questions, even though the court said that you can testify as an expert. The reason that we do this, as I mentioned before, we want to make very sure that the jury knows the full scope of your expertise so that when you're asked those ultimate opinion questions, the jury will understand how you have the expertise to reach the decision or the opinion that you're presenting. So it's information then that's critical for the jury to have, even though you might be required to repeat this information more than once. Yeah, and we've talked a little bit about some of the things that the clinician might be expected to provide to the jury about our academic and professional qualifications. Once again, I just want to say how important it is that although we think we are very familiar with our own CV and we know where we went to school and when we graduated and when we got all of our certifications, it is very easy to get on the stand and forget and just not be able to really articulate some of those things because you haven't looked over it. I think it's important that we all really go over our CV and practice it out loud so that you can really articulate that in a way that makes sense to the jury. Also, to be able to talk about the difference in being SANE trained and being SANE certified, you can absolutely be qualified as an expert without having a SANE certification. You can very much be qualified as an expert with SANE training. And to be able to explain the difference between the two, I think is really important. And I've often myself been asked the number of SANE exams I've completed. So having just an idea of that as well is just something to think about when you're going to be qualified as an expert. And you may be in a jurisdiction to where you might be able to have your CV or resume with you at the witness stand. That's another question to ask the prosecutor when you have that meeting. That way, if you can't remember a certain detail and want to make sure that you're accurate, you may ask if it's possible to refer to that document to refresh your recollection of that detail. But be sure to discuss that with the prosecutor during that meeting that you have. We're going to take just a quick overview of the testimony process that we touched upon a bit earlier. During direct examination, that's when you are initially called by the prosecutor or the attorney, other attorney who's calling you. And the prosecutor is going to ask you a number of questions. If you're testifying as an expert, they may ask you for these qualification statements. And the defense may have an opportunity. And generally, this part takes place outside of the presence of the jury. If you're being qualified at trial, the defense may have a chance to do what's called a voir dire of your qualifications. The jury is not going to be present, but the defense wants to ask questions touching upon your qualifications as well. Similarly, if you're being qualified at pretrial, as I mentioned a few minutes ago, the defense also has an opportunity to inquire about your qualifications and submit any argument that they desire before the judge makes that ruling. Direct examination is an important introduction to the jury of all the work that you did when you provided care for your patient on this occasion. Typically, non-leading questions are asked. We cannot ask leading questions on cross examination. That means for the most part, they're going to be open ended. Are you able to tell us about your contact with your patient on whatever the day and question is? They're going to be open ended. Sometimes your answer to a question is going to form the basis for the next question that the attorney is going to ask. And all they're doing is referring to your answer and asking you some follow-up questions to clarify or to present additional information. After direct examination is concluded, the other attorney then has the opportunity for cross-examination. It's so important to remember that you've already prepared your testimony, you know your case, you're able to talk about the work that you've done for your patient, and to some extent in meeting with the prosecutor, they've given you some insight potentially into questions that can be asked. It's important to remember that you really have prepared for cross-examination as well, even though you haven't previously met the attorney in question. In terms of cross-examination, it is appropriate and happens many times that defense counsel is going to use leading questions. Those are questions that may call for a yes or a no answer, and that may be somewhat uncomfortable for you as a witness, but remember that the prosecutor is going to have another opportunity to follow up on what's called redirect, and a prosecutor may go back to that question and ask it as an open-ended question, giving you the chance to provide that explanation that you were not able to earlier. So that's important to remember as you're being cross-examined. Redirect examination has to be limited to the scope of cross-examination, and all that means is the prosecutor can't bring up new questions that are outside of the scope or the purview of defense counsel's cross-examination. And again, they're not able to use leading questions, so these are going to be open-ended questions. And we already talked a little bit about this, but when the objection occurs, it doesn't mean that you as a witness have made a mistake. It simply means that an attorney has a concern about the content of that testimony and wants an opportunity to address their objection to the court before your testimony continues. It's generally permissible after the court rules on that objection. If you're not clear on what that question was, because it may have been really asked of you quite a few minutes before, it's okay in most jurisdictions to ask that question be repeated so that you can be very clear on what the question is. And really, a point that needs to be made with regard to all of your testimony is it's so important to understand the question before you answer the question. If you aren't sure about what this question is calling for, you should go ahead and ask for clarification and take an opportunity to think it through and to ensure that you're testifying accurately in response to the question that was asked. The focus of direct examination, and really it goes to the heart of your work as clinicians, it's going to be the care that you provided for your patient. It's very important to prosecutors that we focus on your integrity and your professionalism. Your work for the patient was done on a certain date and time. You're now, in a criminal case, going to describe what that work was. There's going to be attention given to the history of the assault that your patient provided. Many times, you're going to be asked about the demeanor of your patient while they provided that information to you. This may turn out to be evidence of trauma, which is important in the litigation. To the extent that it's possible, recording the exact words that your patient used can be very important to your testimony because it allows the prosecutor to focus on the exact words that your patient used rather than a summary of what your patient said. You're also going to be asked questions about the examination that you performed, the head-to-toe examination, the anal-genital examination. You're going to be asked to detail what you did in that regard, and you'll be asked whether or not any findings were noted. And you're going to be asked questions based upon the absence of findings and certainly questions if findings were present. If you're testifying as an expert, you may be asked, in addition, an opinion as to whether or not the history provided by your patient is consistent with the findings or the non-findings in terms of your examination. There may also be questions directed to your collection of medical forensic specimens, and it's really important to remember that this is part of the work that you do for your patient. It's not work that is undertaken for law enforcement. It is a professional service that you provide for your patient, and this work is provided based upon the history of the assault that they have given you. You're also going to be asked questions about discharge and planning, any psychological and physical harm or health risks that may be associated with the assault. And this is also an important part of your examination, and it's something that's important to prosecutors as well, because again, it emphasizes your work as care providers for patients. We have over and over again said, emphasizing that our work is care for the patient. And so important when we are talking, we're testifying that our language is patient-centered, that when we're describing the role of the forensic nurse, we're describing the medical forensic exam, that we're using neutral language, that we are very clear that collection of specimens is done for the patient. I typically like to phrase it as the collection of specimens is done at the request of the patient, of course, because we have asked for their consent before we collect those specimens. And then those chain of custody considerations are part of our work as the clinician. We are going to collect those specimens and maintain that chain of custody because that is what's best for our patient. We're not maintaining the chain of custody as a favor to law enforcement. We are maintaining that chain of custody because that is what's best for the care of our patient. Maintaining that we use the term patient when we are talking about the individual that we have provided care to, not using the term victim is what an important part of language as we are testifying in when we're referring to our patient in any sense is that we're using the term patient. I think cross-examination by the defense attorney is this part of testimony that is very nerve wracking for a lot of clinicians. Preparation for that cross-examination is so important. Talking with the prosecutor about those potential defense strategies and really going through that process, what the cross-examination looks like. And knowing that explanations can be given on redirect if needed. If the prosecutor feels that a redirect is warranted based on something that was asked in cross-examination by the defense attorney, then that will be the opportunity to give those explanations. And during that cross-examination, it can often feel like a personal attack a little bit on you because you're being asked all these questions, then there may not be the time to answer or it may not be appropriate to answer in the way that you feel like you could explain. It may be a yes or no question. And really you want to say maybe or yes, but or no, but. And that's when working with your prosecutor and having the opportunity to explain is so important. And we've already talked a little bit about this, but it really does bear repeating that when the prosecutor comes back, they can ask additional questions, but it has to be within the scope of cross-examination. There's always an exception to every rule. Sometimes the prosecutor may ask the court to reopen direct examination if they have a good reason to do it. This doesn't happen very frequently, but it is possible. The prosecutor is going to ask the questions really to clarify any issues that come up on cross-examination. And then the defense attorney may ask additional questions after that. But just think in terms of the process and the fact that you've been prepared for all of these various questions for the most part when you met with the prosecutor initially. And I think we have already talked about the fact that this redirect is going to be limited to what was discussed during cross. Right. So we have several slides after this one to discuss clinician and prosecutor attorney considerations for testifying about the medical forensic exam. Of course, there will be testimony related to the medical history, the assault history, the physical exam and collection of specimens and about discharge planning. So we'll start with medical history. It's so important for prosecutors to carefully review the medical history. There may be information in that history that prosecutors may not understand why that question was asked and how it connects to the medical examination. Also, there can be information contained within the medical examination that a prosecutor may have concerns about information just to use an example of past mental health treatment or therapy that may not be relevant or may cause some issues with regard to this particular case. A prosecutor is going to discuss that with you in your initial meeting, and they may also bring what's called a motion in limine, which means they're asking the court to restrict or prohibit reference to that certain part of the history so that you would not be asked about that. But medical history, it's important for prosecutors and clinicians because it's part of the work that you perform for your patient. And so generally, you're going to be asked some questions about aspects of that history. When we talk about the history of the assault, we know that the work that clinicians provide is guided by the history that the patient has been able to provide. Hopefully, you've had an opportunity to put the patient's words in quotation marks and to try to note as accurately as possible what their history of the assault is. The prosecutor is going to ask questions about what the importance of the history of the assault is, and it's going to give the clinician an opportunity to explain. It's what guides the physical examination that you then perform. It also is going to lay part of the foundation for the admission of expert opinion at a later point in your description, making sure that the patient's language is recorded to the fullest extent possible. And if you're able to also note any behavioral observations that stand out, what the demeanor was, this could also be an important aspect of evidence of trauma. Going back to that patient's demeanor, when we're describing, when we're documenting the history of assault, like Patty said, we of course want to make any notations about demeanor and being careful in our documentation that we are describing their demeanor, not describing what the patient is doing, if they're crying or the way they're sitting, things like that, not making assumptions about how they feel. And then we can accurately relay that during the process of testimony. Also important to be able to describe when the assault occurred, and why that's important for the examination, to be able to relay facility and jurisdictional policies and protocols about evidence collection timeframes. And if evidence was collected outside of those timeframes, why you as a clinician chose to do that, the identity of the assailant can be admitted into court based on our discharge planning. So being able to identify the relationship of the assailant to the patient and the patient's own words is very important. And being able to relay to the jury that the assault history is taken to guide that medical forensic exam, and it's not, it doesn't have an investigative nature. When we talk about the physical examination that clinicians perform, we're also talking again about the importance of the history of the assault, because that's what guides this physical examination. And the work as Lacey has been really accentuating the work is done for the patient with the consent of the patient. And that's very important, that we also provide information about obtaining the patient's consent, and how you provide information about every detail of the work that you anticipate doing, so that your patient knows what you're doing. The prosecutor needs to establish that you connect, you collected these specimens from the patient, and that the chain of custody is intact. And basically what that means, you're going to be asked questions about the collection process, about the packaging, how the swabs are maintained to preserve the integrity of the swabs, and what you do with the sexual assault kit, for example, after that evidence is taken. Where is it placed? Where is it held? Does anyone have access to that? And remember also, when you sign your signature or your initials and date it, it may ultimately in court, you may also be asked to identify your signature or your initials and your date on that packaging, when it's going to be offered into evidence in the trial. It's going to be marked as an exhibit, and you'll be asked to identify all of that. Now in cases that are older, you may need to take a little bit of time to go back in the event that there's been any change to your signature. But these are just important aspects of your testimony that you need to consider. Even though a prosecutor may use the language victim, your language still needs to be that of patient, because that is the person that you provided your care for, and they're still your patient, even if you're testifying in a criminal trial. The clinician should be prepared to discuss how the physical exam is conducted, just typically how you as a clinician conduct that physical exam. And that's a good recollection of that head-to-toe exam, exactly what you do, so that hopefully the attorney doesn't have to keep going back to you to ask questions about what you've done, and making sure that what you're explaining makes sense to the jury. Of course, be able to discuss any findings or non-findings, being able to explain why it's okay that there was no injury present, or if there is an injury present, what that can mean if you are qualified as an expert. Being able to explain your typical process for the collection of specimens, and of course, in the case that you're testifying about, if there are any issues that came out of collection of those specimens, or any issues with the process of packaging, sealing, storing those collected specimens. And then any adjuncts or techniques used by the clinician. So, things to think about here would be the use of toluene blue dye, the use of an alternate light source, or the use of an alternate technique to view the patient's hymen. Being able to explain those techniques in a way that makes sense to the jury, and being able to answer any questions that the attorney might have about those techniques and why they were used. Of course, if there was any issues, you would have wanted to have discussed those with the prosecutor ahead of time. In terms of discharge planning, as Lacey mentioned earlier, the identity of the person who has assaulted your patient, and they provided this information in the history, it may be admissible based upon what jurisdiction you're in. And it's really important to be, to talk with the prosecutor to determine if identity is going to be admissible in your jurisdiction. Sometimes, even if it's not admissible, sometimes in a pretrial, or through an offer of proof when the jury is excused, the prosecutor may still ask the court for an opportunity to address it. And typically, this is submitted as your need for this kind of information, because it helps you develop safety planning. When there's an intimate partner relationship, for example, and concern with the danger presented by this assault to your patient, it's something, identity is something that you need to know. And it may also require intervention and support resources that are important. But the prosecutor will be able to tell you whether or not you can testify to the identity of the perpetrator in your jurisdiction. Some additional things for the clinician as far as discharge planning is that the care of our patient and the information that we need to get from our patient is dependent on their medical needs. If they are in any kind of crisis and their safety needs that the information about the assault is needed to complete the exam. That's what guides the clinician's exam and we ask the relationship of the assailant so that we can complete safety planning. It's very important for us to think about this person who has assaulted our patient is someone that they live in a home with. How are we going to provide for their safety when they leave? Any consequences of untreated sexual assault of course infection, injury, pregnancy, PTSD, suicidal or homicidal ideation. We want to be able to explain those consequences and explain our follow-up and discharge planning to reflect those potential consequences and that really sets the clinician apart from a forensic technician. It shows that we are not just collectors of evidence that we are medical professionals providing medical care to a patient for the treatment of injury and potential infection things of that nature. One important point to just following up on Lacey's comment it does differentiate medical professionals from others and if there's an argument or some kind of an implication that the defense may be offering that you work or associated with law enforcement this is another really important point. In fact it's critical to be able to make this point about discharge planning as part of the work you do for your patient. When we talk about going forward it's so important for clinicians and prosecutors to meet as soon as possible after that subpoena is directed to the attention of the clinician. We had a great question come up earlier in chat about what if the prosecutor is not in contact. It's perfectly appropriate for the clinician to contact the prosecutor. Everyone has busy schedules both clinicians and prosecutors do but there's always time to meet with witnesses well in advance of a trial so that a really high level of preparation can occur and that kind of discussion is critical also to preparation for direct exam as well as cross-examination. It's important to really obtain information about the questions that clinicians are going to be asked and if you as a clinician have some additional ideas about information that's important that a prosecutor may not readily understand as a non-medical professional it's a great thing to make that known to the prosecutor. Lacey earlier talked about how important it is to explain medical terminologies so that can easily be understood. Ultimately the prosecutor is going to want to understand that terminology so that they can also explain this to a jury and ask questions that make that kind of testimony more understandable. At the heart of your work as clinicians again is the care that you provide for your patient. Your patient is still your patient even though different language may be used by a prosecutor or other attorneys in criminal litigation it doesn't change the reality of the work that you did and it's so important that's carried through your testimony. And I think another important point here is that as clinicians no matter what discipline we may be from part of what we do as clinicians is educate whether that be our patient or the prosecutor, the jury. The whole process of testifying is about really educating the jury about what we have done and what it means and as we're preparing for that testimony process when we're meeting with the attorney with the prosecutor we are helping them understand as well as them helping us understand the process of testimony. It's really a team a teamwork thing making sure that we are exchanging information back and forth so that this process is a lot easier for everyone. So we're going to talk briefly about how to use the testimony toolkit in your communities and then we will answer questions. I think some strategies for clinicians in our roles is that we can integrate this toolkit into our training into our onboarding process and into annual competencies. I know that in my own practice I've trained many nurses and other clinicians and they are all very nervous and I'm very nervous about testimonies. Going ahead and addressing that up front I think is a great strategy. Also sharing this and discussing it at your sexual assault response team meetings or your multidisciplinary team meetings so that the prosecutors that are involved in those teams are aware that it exists and that it can be used as a tool. Also meeting with your prosecution team to define a process and I think Karen mentioned earlier that you should call up your prosecution team and introduce yourself. Let them know that you're there, that you're a SANE and you're in their community. They may not even know that your program exists. Really making sure that the prosecution team knows about you as the clinician and about this testimony toolkit and how it can be used to prepare for trial. Also ensuring that our current facility policies align with the recommendations in the toolkit and within the national protocols, the adult adolescent protocol, pediatric protocol, those national best practices for sexual assault evidence collection kits and the national training standards. Oops, it took a while to get to that slide, then it left us, sorry about that. There are strategies for prosecutors as well. It's important for prosecutors to really familiarize themselves with the testimony toolkit and really incorporate this into training that's done for prosecutors, new prosecutors that may be joining sexual violence units within their office and annual training for prosecutors, making sure that everyone is on the same page and receives this very important. In particular, it's important for prosecutors who are handling sexual violence cases to have regular meetings within that unit and to explore together all of the benefits in working with clinicians and taking advantage of the toolkit, which really does have some viable and recommendations for really effective practices in terms of preparation for testimony and testimony. Prosecutors are also going to want to ensure that there's a protocol in place or a policy to make sure that clinicians are contacted. In many instances, it's possible to make contact with a clinician before the fact of the subpoena, and it really is a preferred practice because prosecutors are going to want to know what kind of timing works for you. If for example, you're out of the jurisdiction, you're totally unavailable, the prosecutor may want to consider and address a motion for continuance so that your testimony can still be presented. Getting that contact as early as possible is such an important thing to do for prosecutors as well as for the convenience of fellow professionals who are clinicians as well. And then trying to come together with cross-training. There can be some excellent trainings involving preparation for trial testimony and expert testimony involving both prosecutors as well as clinicians with an opportunity to practice some of those skills. If that's something that you haven't done in your jurisdiction, it's something to really talk with members of your team about because it really can be a great opportunity to have everyone together really discussing the benefits and the advantages that are noted within the testimony toolkit. We have a couple of questions in the Q&A. The first question is, we have a forensic nurse who works as an expert for the defense. One thing she points out every time is that the nurse is not certified. How would you counter that as an expert? One thing that a prosecutor may want to consider is asking that question of the witness because you can still provide testimony regardless of a certification. And it's important to ask about the content of the training and bring forward that additional information. Do you want to add to that, Lacey? Typically, like Patti said, it's helpful when the prosecutor can ask you about the difference and what the difference is between being SANE-trained and SANE-certified and the nuances of that. I think what I have done in the past and something that is not difficult to explain is that first, if your state does not require certification, then that is something that you can relay there. In my state, certification is not required to practice as a sexual assault nurse examiner. Also, understanding that certification is a choice for the individual clinician is not a requirement. I think really just explaining that, I think that's pretty adequate. Most of the time, I think if you relay that it's not a requirement in your state or in your jurisdiction, that's adequate. Do you have anything else, Patti? Yeah, I just I totally agree, Lacey. And I think it's important if this is coming up from the defense, the prosecutor is going to conduct the direct examination first and should fully explore all of the qualifications that are necessary. And I think in that manner can really diffuse the impact of that kind of inquiry coming up on cross-examination. The second question, and I'll add what Karen said here, discussing the details of the 40-hour course and all the training that we receive on the front end before we even get to the point of certification. Yes. Thank you, Karen. Our next question is about how to deal with a defense attorney asking questions. Sorry, I'm trying to read. Any recommendation on how to deal with the defense parties, especially the attorneys asking questions and with your attitude toward the response to a defense attorney? Okay. Well, first of all, it's regrettable that you had this, that you had that experience. Ordinarily, the defense is able to ask cross-examination questions based on direct and not to follow up with commentary as opposed to a question. My sense of your concern is that there would be a question and then some kind of a statement or commentary. A prosecutor has the opportunity to object because only questions can be asked on cross-examination. It's not a time for commentary or making statements. If such is the case, a prosecutor may even wish to address the court and ask that a comment can be struck. What I also gained from your question is the fact that you were doing what you should do, and that's sticking to the questions that were asked and answering those questions. And that's truly what your responsibility as a witness is. Yeah, and I think it's always important for the clinician to remember that although at times it can feel like a personal attack, it's not. You are there testifying as a witness and you're answering the questions that are asked. We should answer the questions that are asked of us regardless of who they are asked by with the same tone, with the same faith, meaning that we're a professional and we're answering the questions that are asked of us. It looks like the next question, and I'm reading this and absorbing this, and I know you're going to want to comment on this also, Lacey, but it sounds like sometimes, and we're all familiar with this happening, an examination may not have findings. And part of what a prosecutor, if this is criminal litigation, is going to ask you about is that question, if you're testifying as an expert, will ask you about the importance of the history provided by your patient, what examination you conducted, what the findings were, the non-findings, and ask you whether or not those findings or non-findings were consistent with the history. And I think Lacey addressed this earlier, that may be the case, that given what the history is, that findings would not be anticipated. And then an attorney would be able to ask you, you're saying that, and you can explain, given that history and what it was, why you would not express the findings. Yeah, and I also think it's important when we're talking about findings versus non-findings, which you've heard us use over and over in this webinar, is being careful with the word normal, that I like to use finding versus non-finding, and also really, if you're testifying as an expert, knowing the literature, knowing the literature about injuries in consensual and non-consensual sex, what's out there for you to reference back to in the process of your testimony. Okay, our next question is from Carol, and it's a great question. Thank you. Thank you, Karen. And one of the things that you're asking is, can you discuss the difference between obtaining a detailed history of the event versus interviewing the patient and having to document every word the patient states? For me, as an attorney who has served as a prosecutor, I think that the important point to make is that you're asking questions that are necessary to your work as a medical professional, and that's what would guide you in obtaining the detailed history. So that would be my legal perspective on it, and in that process, trying to record the exact language that your patient is using as closely as possible. I like to kind of talk about this in a way that relates getting a detailed history of the events with any other medical specialty. If a patient were to come into an emergency department and we are asking them questions about what brought them in today, we would not necessarily type furiously every single word that they said, but we would listen to what they are telling us, document in a logical sense what they're saying, and then put those high-impact statements in quotation marks. And that, I think, sets it apart from being investigative. We're not law enforcement. Our purpose is for medical treatment, so we are asking these questions to guide our medical treatment just like we would in any other medical specialty. I will come back to this question about the SANE-A versus SANE-P board certification. We'll come back to that one and let Patty address the next one. We have a question from Allie. Will the prosecuting attorney have information on whether or not DNA was present on the swabs, or is this not something that a SANE can testify to? That's a great question, too, Allie. Thank you. The prosecutor, in the context of all of the work that's been done on the case, is going to have knowledge. If there were swabs and if they were provided for forensic analysis at a crime laboratory and there is DNA, the prosecutor is going to know that. But what you're going to be asked about as a clinician is your role in obtaining the swabs. You're going to talk, as we discussed a few minutes ago, about the process of obtaining those specimens with the consent of your patient, how they were packaged, how the integrity of those swabs was maintained in the packaging, and who was provided that evidence. And then there will be other witnesses, law enforcement as an example, talking about receiving the items of evidence and arranging for their transmission to a crime laboratory for evaluation. So that would be your role in testimony as a clinician. The prosecutor is also going to call a laboratory analyst from the laboratory who's also part of the chain of custody. They're going to talk about receiving the evidence about the work they performed to determine the presence of DNA, whether that work was done pursuant to a protocol, if it was observed in the laboratory, if it was peer reviewed, and then they'll be asked what those findings are. So to get to the heart of your question, I think that will essentially be the testimony of the laboratory analyst as to the presence of DNA. Yes. And it's been my experience with testimony that I often do not know, even because I'm not present in the courtroom for whenever the lab technician or forensic technician testifies about the sexual assault evidence collection kit, I often don't know at all until maybe I talk with the prosecutor after. So for the question about the SANE-A or SANE-P board certification, you are correct in that the SANE-A and SANE-P are not board certifications. They are a certification exam and the Commission on Forensic Nursing Certification is currently actively pursuing accreditation. If you have specific things, questions about the IFN certification process, I'm going to drop the link to our FAQ page into the chat so that you can see there are multiple questions there about certification that I think will be a lot more helpful to you than what I can provide in the next few minutes. There's that link for you. The question about avoiding the use of normal. Yes, I personally do avoid the use of normal in my documentation. That, I think, like you said, is a personal practice, but I've found that it can be problematic. And like you said, what is normal? How does one even define what normal is, especially when we're talking about genital anatomy? There are so many variations of what is normal. I avoid that terminology and that's in my practice. Of course, I think for each clinician, we have to decide how we practice ourselves and what we're comfortable explaining. And I think it's always important if you have some kind of specific documentation that you do or you have a specific practice that as long as you're able to explain that, then that's all you shouldn't have to worry about. I would never, I don't ever recommend changing your practice just based on one person's opinion of practice. Patty, can someone decline to be an expert? OK, that's a very interesting question. Thank you for raising it. I presume that there had been a conversation had with the prosecutor or with the attorney that's calling you, who's asked you to provide expert testimony. And if in that process you have concerns about being qualified as an expert, that really is the time when I think you should discuss that with the attorney calling you. There's got to be communication. It sounds like you have some concerns. The concerns need to be respected. So it's I don't know what the specifics of the concerns would be, but they really need to be discussed. I think we have one more question in the chat. Yes, Janelle asked, would sorry, one second, it went away. Would it be advisable or not to meet with both prosecutor and defense counsel at the same time free trial? Well, if you're called if you're called by the prosecutor, ordinarily the prosecutor is going to arrange for you to meet with them sometimes, and this may vary in different jurisdictions. Sometimes a defense attorney may say, well, I'd like to meet with the clinician also. And usually the prosecutor is going to say, OK, but if you would like, the prosecutor can be there with you during that interview. So that's the way that I've seen it. I've seen it approached. If you're called by both the defense and the prosecutor, they may wish to speak with you at the same time. But really, typically this is going to come up with the attorney who's calling you will try to arrange a meeting with the other attorney if they want to speak with you. If the attorney speaks to you directly, it's always good to notify the prosecutor and work with the other attorney if it's the defense attorney to accommodate their request for an interview. All right, thank you all for your questions. Those are all great questions, good topics for us to discuss. This is our contact information. If you have further questions, please feel free to reach out to either myself or Patty or both of us. Thank you so much, everybody, for carving out time out of what we know to be very busy schedules. It was great having you all here, really appreciated your participation. And thank you in particular for the great questions that you asked that allowed us to address some of your concerns. And thank you, Lacey. It's just such a pleasure to work with you on this. Yes, thank you so much, Patty. This has been great and preparing for this has been great as well. Again, today's webinar is being supported through IFN's Technical Assistance Grant. Through that grant, IFN has the Safe TA website that houses various educational opportunities, resources, and national guiding documents. You can contact IFN with your request for technical assistance by directly calling our TA line, 1-877-879-7278, or by submitting a request form by clicking the request TA button on the website. And I did also want to mention that if you're an IFN member, we really would love for you all to do the IFN member survey. That is different than the CE survey that you're going to be doing here, but our member survey so that we can collect information from you about your member experience. I'm going to drop that in the chat if you're an IFN member interested in filling out that survey. And thank you all so much for being with us today. And this is one of our upcoming webinars on September 25th. We hope you'll join us for that webinar as well. Thank you all so much.

International Forensic Nurses

Office on Violence Against Women

Patty Powers

Lacey Smith

Testimony Toolkit

courtroom testimony

forensic nursing

medical forensic exams

continuing education

fact witnesses

expert witnesses

clinician-attorney collaboration