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.