You’ve Been Subpoenaed

As a medical student, you hear about doctors having to give evidence in court from time to time. But until you experience it yourself, it all seems a bit surreal and even perhaps a little romanticised…depending on which television show you watch!

Since beginning my internship, I have been on the receiving end of two subpoenas.  When I first received a subpoena I was rather naive as to what this meant, apart from knowing it was a legal document to be taken seriously.  My purpose in writing this blog post is to help others on the receiving end of their first subpoena so that they might have a better idea of what this is, what to do about it and what to expect on their first day in Court.

1. What is a subpoena?

The Federal Court of Australia website describes a subpoena as “an order requiring a person (called the addressee) to attend at court to give evidence, or to produce a document or thing to the Court, or do both things”.  The subpoena served to you will have tick-boxes listed on the front which will state if you are ordered to attend to give evidence, produce documents or things, or both.  There will be a date, time and location listed on the subpoena detailing when and where you will need to attend to give evidence.

2. Do I have to go when the subpoena states I should be there?

Yes.  Failure to comply with a subpoena without lawful excuse is a contempt of Court and you “may be dealt with accordingly”, which could result in your arrest.  Scary, I know.

In addition, you must continue to attend from day to day unless you have been excused by the Court, or until the hearing of the matter is completed.  This could mean you will need to be available for a period of 1-2 weeks at a time.

3. Who can I speak to about the subpoena, for instance, if I am going to be away at the time, or if I live rurally?

You can phone the Office of the Director of Public Prosecutions (the DPP) for advice on what to do about this.  The DPP were very helpful when I called, as the court date listed on my subpoena was the first day of an interstate holiday I had planned 6 months in advance, before relocating to a rural town!   If you live rurally, a teleconference from a local courthouse may be able to be arranged to avoid the need for long distance travel.

4. Shoud I get legal advice?

I suggest that you should speak to your medical defence organisation (MDO) for advice – I received very helpful advice on what to expect on the day and how things may run.  They were also able to advise me on general phrases that are best to avoid (for example, “to be honest” or “honestly”, which imply that you are not honest at other times) and to simply stick to the facts and not make any inferences or assumptions, or offer opinions if you are not sure.  It is ok to say “I don’t know” or “I don’t remember”.

5. What is the court day like and what am I expected to do?

You will be nervous, but remember (in most cases where doctors are required to give evidence in court) it is not YOU on trial, but rather the legal teams are wanting your expert opinion about matters in the case.

Dress in smart clothing, (or look “killa”, as a girlfriend had been described by her incarcerated boyfriend in the ‘The Prison Show’ on 3D radio recently).

Arrive 30 minutes early and wait outside the court…then be prepared to wait…and wait…and return the next day…and wait…!

You will be asked on arrival of your preference for making an affirmation, or swearing an oath on the bible or another religious text, that you will tell “the truth, the whole truth and nothing but the truth”.  More information about the difference between an affirmation and an oath can be found at Courts and Tribunals Victoria.

When your time to give evidence arises, you will be escorted into the court (perhaps with a security guard) who will take you to the witness box where you will remain standing until you make your affirmation or swear your oath.

The legal team who has requested your presence will ask you a series of questions, often beginning with more open questions to allow you to describe an event or situation, followed by more closed questions (requiring yes/no answers).  Just answer the questions asked of you truthfully, and say if you don’t know.

Take your time; if you are given evidence to review (for example, photographs) or have notes with you, take the time you need to look at them and think properly before answering a question.

6. Other tips

In your normal medical practice, ensure that you keep good records – always.  You never know when something may become a court case.  There may be some situations where you know that more than likely, a situation is going to end up in court, so in those situations, take great care in documenting times, dates and all findings including positive and negative findings on history and examination.

If you still aren’t sure, touch base again with your medical defence organisation for further advice.

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7 thoughts on “You’ve Been Subpoenaed

  1. Couple of Qs

    (i) How flexible is the Court?

    We’re all busy and especially in rural areas having a doctor hanging around the Court for 1-2 weeks will impact significantly on the health of the community – and the financial health of the doctor who is generating no income whilst ‘on hold’

    Does the clerk of the court try to accommodate a day/time for your appearance and can a written submission be made if being asked for eg: summary of notes?

    (ii) are there any courses on forensic medicine / proper medical terminology

    I was taught to describe a cut as an ‘incisional wound’ not a laceration – they mean different things. Similarly training in forensic medical exam eg: alleged rape requires a degree of training to get things done right. Can you suggest avenues for registrars looking to learn more?

    (iii) Was it scary?

    I think I know the answer to that. But I am betting the advice from your MDO was invaluable and helped defray the nerves to a degree…

    Good post

    • Hi Tim,

      Thanks for reading and thanks for asking such good questions! Here are my answers:

      (i) The court in my case was actually quite flexible and understanding, as the case was occurring just as removalists were booked to move us to the Eyre Peninsala (i.e. far, far away and at a stressful/busy time in our lives!) They were willing to look into a video link up from a local courthouse, but in the end I was able to attend in Adelaide and was ‘only’ required for 2 days (waiting around for most of it and only actually giving evidence for about 10 minutes). Having said that, they gave me the impression that the timing and waiting was mostly “out of their hands” (for example, if the prosecution and defence teams weren’t agreeing on a piece of evidence and were taking their time to come to a conclusion) so I suppose it would depend on the teams that you have to deal with at the time and how understanding they will be of your work committments. One would hope that the rules could be bent just a tad for rural doctors!

      (ii) I am sure that there are courses available on forensic medicine, but not sure about courses that teach doctors about proper ‘legal speak’ when giving evidence. I am just not sure of the forensic medicine courses that are available (or known to be good) – I would be very interested to hear if anybody can recommend such courses. As for the avenues for training in forensic medical examinations for sexual assault, there is Yarrow Place in Adelaide (http://www.yarrowplace.sa.gov.au/healthprof_training.htm). I have not done this course, but have been advised that you do need training in this before you can conduct such an examination, to ensure that it is all done properly and that the evidence is admissable in court.

      (iii) YES it was scary! But you are right in saying that having some advice on what to expect beforehand and the main “dos and don’ts” was extremely helpful.

      Thanks again!

  2. Yeah, the Yarrow Place course is supposed to be good. I did my FME stuff for sexual assault in Tasmania when doing Dip Obs. It was taught by the people from the Melbourne forensic centre (see more at http://www.vifm.org) – very good and involved going along to Court and being a witness (all mock, but useful)

    This blog post from the powerful Andy Buck/Amit Maini duo of etmcourse.com fame is useful – on injury description in the ED

    http://www.edtcc.com/blog/2013/8/2/injury-description-in-the-emergency-department.html

  3. Great post.
    Having been to court a lot (as a witness, not a defendant), it is a foreign environment, and it pays to get some tips before heading in.

    Re: flexibility
    In general you’ll have a contact within the OPP as well as the Police Officer in charge of the case. If you make it clear that you’ve got limited availability due to clinical responsibilities, they’ll generally try very hard to accommodate and make sure you’re not sitting around for ages. Also, if you work in a hospital, make sure you let HR/Medical Staffing and your departmental roster person aware that you won’t be showing up due to court!

    Re: Forensic training
    Not sure if they still offer it, but I did a 6 month non-ED term as the Clinical Forensic Medicine Registrar at the Victorian Institute of Forensic Medicine (http://www.vifm.org) during my ED training. It was by far the best rotation (ED or otherwise) I’ve done in my entire medical career, and was a superb learning experience in all things forensic and court related. In this job you regularly go to court as an expert witness and get to learn the ins & outs of the medico-legal system. Can’t recommend it highly enough for those interested. I think GP trainees can apply as well. Not sure if other states offer something similar

    Re: scary
    Imagine being a lawyer who’s never been inside a hospital before and being asked to come into an operating theatre to give a legal opinion on a medical case to the head of surgery while they’re elbows deep in a bowel resection, and being forced to stand up on a stool, alone, in the middle of the operating theatre, with everyone in the room staring at them. They’d s*#t themselves. It’s only scary because it’s a foreign environment and we don’t know the “rules”. The main rule is: the lawyers will ask the questions, but direct your answers to the judge (in a Magistrates/County court) case, or the jury (in a Supreme court case). That’s who you’re there to speak to, the lawyer is just a conduit for questioning.

    Magistrate court cases are usually for testing the evidence, to see if it’s worth taking to trial, (they are often called “committal hearings” as if they’re successful and the magistrate thinks it’s worth taking to trial, the defendant is “committed to stand trial” at a later date). There’s no jury in a magistrates court. So in the magistrates courts I often found the lawyers to be more aggressive, ruder and much more abrupt, as they’re testing out the evidence and testing out what sort of witness you’ll be. Once they get to a higher court, the tone changes, as the lawyers don’t want to be seen to be being mean to the nice young doctor who’s taken time out from their busy practice to come to court, in front of a jury. If you go to a committal hearing, and then get called back for the trial, make sure they give you a copy of the transcript from the committal as they can be months to years later, and you don’t want to contradict what you’ve said previously under oath.

    Don’t be afraid to say you don’t understand the question, and ask for it to be repeated. Don’t guess, hypothesise, extrapolate or estimate without stating clearly that this is what you’re doing (and it’s best to avoid doing this at all, as they’ll usually pull you up on this), and try not to be drawn into a line of questioning whereby you contradict yourself. If you don’t know the answer, just say “I don’t know”. Also, do not give an opinion outside of your field of expertise. If you must, state clearly your level of training/experience on that topic and that it is outside your field of expertise.

    Good lawyers are expert wordsmith’s, and are experts at phrasing questions in manners that necessitate answers coming out in certain ways, and they often want a concrete opinion when it’s just not possible, because medical cases are full of so many variables, which can be befuddling, so don’t feel bad if they keep hammering you for a single, concrete opinion on a topic that you think has several possible explanations! And as Mel said, you’re there to help out as a witness, you’re not on trial!

    And thanks for the link Tim, also available here: http://etmcourse.com/injury-description-in-the-ed/

    Andy

  4. I’ve done the Yarrow Place short course and highly recommend it. Good run through of sexual assault but also a full days training in general forensic medicine and even a fake morning in court with expert witness training with a real judge and cut throat defence lawyers! There were actually quite a few ED registrars there mainly for that part.

    We can do forensic examinations rurally, but there are issues with the chain of evidence so it really did sound difficult in terms of that and you would need to liaise carefully with the local cops. Mainly being no where to store it, especially if you took samples etc if the victim hadn’t decided whether to go ahead with charges – this isnt possible to do rurally unfortunately. Taking evidence etc wasn’t the hard part!

    Good excuse for a weekend in Adelaide Mel 😉

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