Defense for the Defense...

Many forensic examiners perform sexual assault exams and then testify for the Prosecution in the resulting case. They testify as a fact witness regarding their exam process and/or they testify as an expert witness offering their opinion in the case. Few forensic nurse examiners offer their services testifying for the Defense.

I've asked some forensic nurses why they shy away from assisting the Defense. Some are afraid of conflict of interest and some feel they wouldn't do the Defense justice (believing the accused is guilty).  Others see working for the Defense as an adversarial role against another practitioner.

As someone who frequently assists the Defense in cases, I feel no conflict of interest nor do I see the role as adversarial. The case is a case, like any other in the justice system. Both parties deserve to have the best information presented in court.

When I'm asked to assist the Defense in a case, I make it clear to the Defense that any information I provide is just as available to the Prosecution. I am an unbiased examiner with nothing to prove. I wish neither to exonerate the accused nor convict her or him. All I hope I can do is shed clarity on the case from an unbiased view.

In the course of reviewing a case, I do look over other the physician's or forensic nurse's examination and if there are pieces lacking I do point them out. If there are excellent credentials and documentation, I point that out as well. If it's an examiner's first time performing an exam, then I look at their training process, their education and professional experience and I explain on the stand that everyone has to have their very first 'solo' exam. How else would we get to be seasoned experts in the future?

The Prosecution has learned to ask me questions that knock out the suggestion that a 'first' exam is inadequate. I (personally) abhor a Defense approach that tries to highlight this, and try to extinguish it before it starts. What is most important is to ensure that the examiner has had the proper education, training and preceptorship to perform the exam. What is also important is to highlight that the forensic examiner/nurse was the person that  performed the exam, not me.  S/he was the one who saw the patient. S/he is the one who can best determine what it is they saw.

It is important however that forensic examiners are ethical concerning information they provide about their exam. I've personally heard forensic nurses testify they visualized 'sperm' in the vaginal vault without using a microscope. I've heard physicians testify that they are sure a patient was raped because of existing genital injury. Such statements are improper and not evidence based. There is no way to tell a patient was raped unless the examiner was actually there to visualize what happened. Even photographs and video can be misleading, and evidence can be planted just as easily as it can be absent. Objectivity and accuracy are key. Document only what you see. Make statements that contain scientific evidence, or state what you may have experienced anecdotally... but you must say it is 'in your experience' and not fact.

When I am contracted by the Defense, in addition to reviewing the forensic examiner's CV and the exam s/he performed, I review pretrial statements, photographs of not only the patient's physical  examination but those of the crime scene. I review statements from investigators. I review statements from the accused. I obtain as much as I can of the patient's medical record including lab results and any medications the patient is taking. I also review the DNA and trace evidence obtained from the kit, and any toxicology results obtained from the plaintiff and/or the accused. It is essential to gather as much information as possible in order to present to the Defense, and to the courtroom, accurate information concerning the case from an unbiased perspective.

Serving as a Defense expert witness is both rewarding and eye opening and it will forever change how you personally look at a case. It will also improve how you practice. In many ways it is "peer review" on a legal stage, but that is nothing to be afraid of if you practice ethically and honestly.

Before you turn down a Defense case, think seriously on whether or not you should accept it. There are many supportive examiners who are willing to help you learn the role. Testifying for the Defense is not traversing the 'dark side' as many may elude. It is simply a path that exists on the other side of the coin.

And the courtroom is metal's the edge.

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*Disclaimer: This blog is solely the opinions and experiences expressed by the author and in no way reflects the opinions, policies or beliefs of the U.S. Government, the DoD or United States Navy.