prosecuting child abuse - mercy...knowingly causes child less than 18 to suffer physical or mental...
TRANSCRIPT
PROSECUTING CHILD ABUSE
Dan Patterson Prosecuting Attorney Greene County Prosecutor’s Office July 18, 2017
Testifying as a State Witness
A Prosecutor IS NOT a Medical Malpractice Attorney YOU ARE NOT BEING SUED
YOUR PATIENTS NEED YOU
THE JUSTICE SYSTEM NEEDS YOU
Our Mission
To be ministers of justice working to ensure that justice is achieved fairly, effectively and efficiently through advocacy and community leadership.
HOW CAN YOU TELL THE DIFFERENCE BETWEEN A CHILD ABUSE PROSECUTOR AND A MALPRACTICE ATTORNEY?
1. There are no known incidents of a health care professional appearing on a subpoena for what purports to be a child abuse case just to be served with a lawsuit alleging malpractice.
2. The child abuse prosecutors who work at the Greene County Prosecutor’s Office practice no civil law whatsoever. We do not sue doctors or mental health professionals.
“THE EXPERT WITNESS IS NOT IN COURT TO CONVICT ANYONE. THE EXPERT WITNESS IS NOT IN COURT TO DEFEND ANYONE. THE EXPERT WITNESS IS NOT IN COURT TO JUSTIFY ANOTHER PERSON’S ACTIONS. THE EXPERT WITNESS IS NOT IN COURT TO EXCUSE, BLAME, ACQUIT OR CONDEMN. THE EXPERT WITNESS IS IN COURT SIMPLY TO EDUCATE.” PAUL STERN, SENIOR DEPUTY PROSECUTING ATTORNEY FOR SNOHOMISH COUNTY, WASHINGTON
WHO AM I EDUCATING? 1. The investigating officer/Childrens’ Division investigator
2. The assistant prosecuting attorney handling the case. 3. Twelve jurors who convinced both parties and the Court
of the following: that they don’t know any of the parties or witnesses in
the case; that they don’t know anything about the subject that
will be discussed (DFS workers, etc...); that they don’t have any training or education in child
abuse.
Basic Criminal Procedure
ARREST CHARGING PRELIMINARY HEARING DISCOVERY TRIAL
Privileged Communication Not Recognized, 210.140, RSMo
Any legally recognized privileged communication, . . ., shall not apply to situations involving known or suspected child abuse or neglect and shall not constitute grounds for failure to report as required or permitted by sections 210.110 to 210.165, to cooperate with the division in any of its activities pursuant to sections 210.110 to 210.165, or to give or accept evidence in any judicial proceeding relating to child abuse or neglect
Testifying as a State Witness
A Prosecutor IS NOT a Medical Malpractice Attorney YOU ARE NOT BEING SUED YOUR PATIENT NEEDS YOU THE JUSTICE SYSTEM NEEDS YOU
HIPAA Exceptions, Release, or Court order
HIPAA CHILD ABUSE EXCEPTIONS
160.203(c) - HIPAA Rules do NOT apply to mandated reporting of child abuse, investigation or intervention.
164.512(e) – permits disclosures pursuant to court orders and investigative subpoenas.
164.512(c) – permits disclosures authorized or required by law and necessary to prevent serious harm to the victim or other potential victims, OR the victim consents
164.512(g) – permits disclosure to medical examiners
164.512(f) – permits disclosures to law enforcement similar to 164.512.(c)
RULES FOR CRIMINAL CASES DIFFERENT THAN CIVIL CASES
Your testimony cannot be presented at trial by deposition
Sixth Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Sixth Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Define Physical Injury
Doctor
Nurse
Children’s Division
Law Enforcement
Physical Injury Definitions
Medical Definition: “injury” means, “the damage or wound of trauma”
Criminal Code: “physical injury means, “slight impairment of any function of the body or temporary loss of use of any part of the body”
Medical: damage or wound from trauma?
Medical: damage or wound from trauma?
Criminal Code: slight impairment of any function of the body???
Child Abuse Statutes Physical Injury means:
“physical pain, illness, or any impairment of physical condition,
including but not limited to: bruising, lacerations, hematomas, welts, or permanent or temporary
disfigurement and impairment of any bodily function.”
Chapter 568 Abuse or Neglect of a Child – 568.060
Class D Felony – up to 7 years imprisonment Class B felony – up to 15 years imprisonment
Serious Physical Injury Class A felony – up to life imprisonment
Endangering the Welfare of a Child in the First Degree – 568.045 Class D felony – up to 7 years imprisonment
Endangering the Welfare of a Child in the Second Degree – 568.050 Class A misdemeanor – up to 1 year jail
Abuse or Neglect of a Child – 568.060
Knowingly causes child less than 18 To suffer physical or mental injury
To be placed in a situation where child may suffer physical or mental injury
Recklessly causes abusive head trauma Serious physical injury to the head or brain caused by any means,
including but not limited to… Shaking
Jerking
Pushing
Pulling
Slamming
Hitting
Kicking
Mental injury
An injury to the intellectual or psychological capacity or the emotional condition of a child as evidenced by an observable and substantial impairment of the ability of the child to function within his or her normal range of performance or behavior
Endangering the Welfare of a Child – 568.045 and 568.050
FIRST DEGREE Knowingly acts in
a manner that creates a substantial risk to the life, body, or health of a child less than seventeen years old
SECOND DEGREE With criminal
negligence acts in a manner that creates a substantial risk to the life, body, or health of a child less than seventeen years old
Expert Witness v. Lay Witness
Lay Witness Facts Personal Observations Personal Knowledge
Expert Witness Opinion Basis For Opinion
Knowledge and Experience Hearsay
Educator
Medical Testimony: Bridge between medical and legal worlds
Medical and Social History Consistent to different providers Consistent or inconsistent with injuries Who said what, when? Safety of child
Differential Diagnosis Does the medical injury = a legal injury? Timing of injury/symptoms Sentinel injuries
THREE RULES FOR TESTIFYING AS AN EXPERT
1. Educate
2. Simplify
3. Be objective YOUR SPECIALIZED KNOWLEDGE BASE QUALIFIES YOU AS AN EXPERT, YOUR ABILITY TO EDUCATE THE JURY WITH AN UNAFFECTED AIR MAKES YOU INVALUABLE AS A WITNESS.
TESTIFYING TIPS FOR EXPERT WITNESSES (taken from the book Preparing and Presenting Expert Testimony in Child Abuse Litigation,, Paul Stern, Sage Publications 1997.)
1. LOOKS COUNT: Court is formal, there is a presumption of respect for an expert witness when you walk into the room, we want to take advantage of that. Do not wear pro-kid attire, we don’t want defense attorney to be able to argue to the jury that you are a zealot who would say anything “to help the children.”
2. DEMEANOR COUNTS: It is most important for jurors to feel they can trust you, speak with confidence so that they can have confidence in what you say. Be polite to attorneys for both sides.
3. BE PREPARED: Review your materials before coming into the courtroom, if you begin flipping through your reports to find simple information, the jurors trust and confidence in you will begin to wane.
4. TELL THE TRUTH: Even if it helps the other side, you must be seen as objective and not a “hired gun.” If an answer requires more information than the defense attorney allows for, it is my job to come back and get the rest of the answer. Part of telling the truth is being allowed to give a full answer.
TESTIFYING TIPS FOR EXPERT WITNESSES
5. BE YOURSELF: The exchange of information between you and the attorney should flow like a conversation, behave like you would outside of court, do what is comfortable for you. If you get the chance, observe another expert testify before you appear on your first subpoena.
6. SPEAK ENGLISH: No matter how helpful your information is to this case, if you don’t say it in a way that jurors understand, it is lost. Talk at a 8th or 9th grade level. Explain as you would to a young patient. When you do use a specialized term, please define it right away. Use comparisons. -EXAMPLE: if you are talking about a colposcope, you could
explain that it is merely a pair of binoculars mounted on a stick with a really strong flashlight on it that magnifies.
–EXAMPLE: if you are trying to describe the force it took to create a physical injury, compare it to the child falling from a three story building without breaking his fall.
TESTIFYING TIPS FOR EXPERT WITNESSES
7. KNOW YOUR AUDIENCE: The attorney may tell you what she learned about individual jurors in jury selection (education level, employment, interests) so that you can tailor your analogies and examples to something the jurors know about.
8. SAY IT THREE TIMES: Repetition is key, especially with new concepts. Don’t get frustrated if a question is repeated, it is not because we are not listening to you. Take advantage of different way you can illustrate a concept; say it verbally, show it with visuals, use of demonstrations.
9. GET MORE THAN ONE OPINION INTO YOUR TESTIMONY: If you consulted with other experts, say so. It lends more credibility to what you are saying.
10. USE THE LITERATURE: If you are familiar with an article in a professional journal that is on point, bring it up and say how it helped you form your opinion in this case.
11. BE THE WITNESS; DON’T TRY TO BE THE LAWYER: Don’t try to answer the question you think the attorney should have asked, but didn’t. There may be a good reason that question wasn’t asked, or maybe there isn’t a good reason, but you still can only answer the question that is asked.
12. CALL US: We always appreciate calls from people who are concerned about children. There are many cases where we cannot make a charging decision until we hear the opinion of the doctor, nurse, counselor or therapist who treated the child.
TESTIFYING TIPS FOR EXPERT WITNESSES
Pretrial Preparation Pretrial Meeting with the Assistant Prosecutor. We will come to your
office to meet with you. Review of elements of the crime she must prove and how your
testimony relates to it. You may have input as to how best to present this evidence.
Input from you on what you are comfortable testifying to and what you are not (speculative or limits of professional qualifications)
Suggested reading materials for the attorney Weak points you see in your testimony or the case itself. Suggest and or prepare visual aids that help you educate Review of exhibits the prosecutor has already gathered for your input. Examples: crime scene photos, photos of injuries Review other expert reports. Preparation for cross-examination
Child Protector App Childrens’ Mercy
FREE in the Apple and Android App stores Funded by a Childrens’ Justice Act Task Force
grant For medical personnel, law enforcement, child
welfare Assists in evaluating potential child abuse victims Decision Tree for further treatment/investigation Realistic animations of mechanisms of injury Descriptions of medical findings Organized by type of injury
Child Protector App Childrens’ Mercy
QUESTIONS?
