Forensic psychology: Part 5: Supporting staff: Chapter 17

by Lois Roisine Ph.D., C.Psych. ^{Footnote 1} 

This chapter has been developed to provide some practical tips on presenting evidence in a courtroom setting, such as an inquest, hearing or trial. The following information is not, nor is it meant to be, exhaustive. As with any human interaction it is not possible to provide a cookbook approach to courtroom communication, but it is possible for the individual to be prepared with some general strategies and techniques.

For simplicity, the term court will be used as a generic term (unless otherwise specified) to cover the three types of judicial procedures: an inquest, a hearing and a trial.

Psychologists can become involved in the court process in three different ways:

• they may be requested to provide support for personnel who have been called to testify;
• they can be subpoenaed as a general witness; or
• they can be called as an "expert witness."

If you are approached to provide "expert witness" testimony, it would be wise to give careful consideration to the request before agreeing. As a criminal justice employee, it would be very easy to end up in a situation where you are in conflict with your employer.

Now that you have been subpoenaed to appear in court, it is important to understand the role you will play. In this section, you will be provided with information regarding two general types of testimony and the implications they will have on your testimony.

i) General testimony as a witness
Most witnesses who give testimony in court do so as a witness to an event, or because they have first-hand information about an event. In these cases, you will be asked to testify about what you saw, heard, or know about an event or situation at issue in court. To provide such testimony, you need not have any particular expertise. Indeed, this is how most witnesses testify in court. This type of testimony is most frequently required if the psychologist - or other witness - saw an event (e.g., a hostage taking) and is now being asked to testify.

When providing general testimony, witnesses can only relay first-hand information or knowledge of the situation or event in question. For example, you could not say that an offender told you that another offender told him that he was going to harm someone.

Also, when providing general testimony, you may not offer your opinion or thoughts about any matter. For example, you could testify that you saw an offender enter another offender's cell and then you heard shouting. However, you would not be allowed to testify that you thought the offenders were shouting.

ii) Testimony as an expert witness
As a psychologist, you may be called to testify as an expert witness. Rather than providing the court with first-hand information about a situation or event, an expert provides the court with testimony based on his or her specialized knowledge as an expert.

You can be qualified as an expert in an area based on your training, experience or knowledge. To be qualified as an expert, a lawyer will present the court with a copy of your curriculum vitae. You will then be asked a series of questions about the information on your vitae. Following this questioning, the court will determine whether to declare you an expert in some area (e.g., assessment and treatment of sex offenders). Once you are qualified as an expert, you will be able to provide your expert opinion regarding the matter at issue in court (for example, your expert opinion may be asked regarding whether you believe that the offender in question is likely to be at risk to harm others in society).

You should know that once you have provided the court with an expert opinion you will be expected, usually on cross-examination, to support your opinion with relevant information. Therefore, you must be careful to consider your opinion and be certain that you can support your opinion with the information you have gathered concerning the offender.

It is important to note that you should try to avoid being declared an expert in an area unless you truly have specialized knowledge in that area and are professionally competent. There are two reasons for this. First, you will be open to questions beyond your level of expertise. This may lead to a disastrous cross-examination experience. Second, putting yourself forward as an "expert" when you cannot demonstrate professional competence in the area may lead to ethical complaints against you based on a lack of competence. Be cautious!

When you receive a subpoena to attend court, you may experience a variety of feelings and thoughts. These experiences reflect the mind's reaction to a potentially stressful event. For individuals who have never given evidence, there is the fear of the unknown, while for individuals who have previously given evidence, old concerns may be triggered.

The types of thoughts and feelings you may experience include worrying about:

• not being able to present well on the stand;
• not being able to answer questions (i.e., being tongue tied);
• being embarrassed or ridiculed;
• being asked questions that you don't know the answers to;
• being asked about events that occurred a long time ago and not being able to remember what you did or said;
• feeling intimidated by the cross-examination process;
• feeling anxious about your performance both at the time of the event and now;
• feeling intimidated by the court room and the judicial process;
• fear that someone is looking for a scapegoat; and
• anxiety about facing the whole situation alone.

All of these reactions are normal and are to be expected.

You may experience a reactivation of emotional responses that occurred at the time of the event. Depending on the original incident, you may have nightmares, difficulty sleeping, intrusive thoughts, a change in your appetite, tension, headaches, stomach and bowel difficulties, or other stress symptoms.

You may experience a reactivation of emotional responses if, for example, the original event was a suicide and you were the person who found the victim. The call to the inquest might trigger the unpleasant feelings and memories you experienced at the time of the suicide. The symptoms generally subside within a few days, but can be frightening when they occur.

The most appropriate method of dealing with your reactions is to talk about what's happening to you with someone you trust. If the symptoms don't go away within a reasonable time, speak to a professional knowledgeable in the area of stress. They will suggest some specific strategies for dealing with your reactions. Keep in mind that your reactions are normal and related to the stressfulness of the situation. You are not losing your mind.

It is the unknown that frightens us! If you can go to the courtroom ahead of time, do so. This will allow you to become familiar with the courtroom setting. If at all possible, sit in on the court proceedings before you are called to give evidence. Or, in circumstances where you aren't allowed to observe the case in which you will give evidence, sit in on another case. This will allow you to acquaint yourself with courtroom procedures and see how other people present on the witness stand. You may wish to go into the courtroom when court is not in session. This will allow you to move freely around the area, to familiarize yourself with the setting and to desensitize yourself to the environment in a less threatening context. In some circumstances, the lawyer may prepare you for the experience by taking you into the court room, briefing you on what you can expect, or by asking you question which he or she expects will be asked in the courtroom.

Upon entering the witness-box, it is considered good manners to acknowledge the judge. Smile and quietly say, "good morning (or good afternoon)."

You will be asked to identify yourself and may be asked to give a summary of your work history and your professional credentials. You can read from your resume or curriculum vitae if you wish. If you are there as an expert witness, the court may request a copy of your resume or vitae to be filed as evidence.

Once on the stand, prior to giving your testimony, you may be asked by your lawyer or the organization's lawyer to read a request for protection under the Canada Evidence Act. This is to protect you, should you have to give evidence that might incriminate you in some fashion.

Generally, throughout your testimony, you will be standing in the witness-box. This means standing for a hour or two at a time — there is usually a recess mid-morning and mid-afternoon. Should extensive standing present a problem (for example, if you are feeling ill or are unable to stand for medical reasons), an explanation to the court about the situation will generally lead to an effort to try and provide you with a chair. It is wise to bring a box of tissues as you may need it, particularly if you are providing testimony where you were injured or threatened (e.g., if you were taken hostage). In such situations your feelings of vulnerability may be triggered.

If there is a recess during your testimony, you will be prohibited from discussing your testimony with others during that time period. During a trial recess, if you need to use a washroom, the procedure in some courts is to obtain assistance from a bailiff. This is generally not an issue during an inquest recess.

If you are correctional treatment staff and are accustomed to referring to offenders as clients, when on the stand in an adversarial situation, it is advisable to use the terms offenders or inmates, rather than clients. Referring to them (offenders) as clients, when other personnel refer to them as inmates, cons or offenders presents you as naive or overly supportive of the accused. Your testimony may be seen as less than objective and your credibility may be questioned.

During an inquest into the death of an offender you were treating, it may be preferable to refer to the deceased as your client. In these circumstances, it is appropriate to overtly demonstrate your support and concern for the offender.

The court system in Canada is an adversarial one. Evidence is presented and cross-examined by both parties in the case. In this context, it is expected that the lawyer will attack, ridicule and find the flaws and vulnerabilities in the witness's testimony. He or she will work actively to impair, diminish or destroy the credibility of the evidence and the witness.

The lawyer will highlight any problems or deficiencies in your testimony. The role of each lawyer is to get information from you that supports his or her case. These are the rules of the game, it is not a personal vendetta against you even though it may feel that way when you are on the stand.

Lawyers use a number of strategies to reach their goals including:

• asking the same question in a number of ways, hoping that you will contradict yourself;
• asking a question to which you partly agree and partly disagree, and then forcing you to provide a Yes or No answer;
• asking your opinion on a topic that is outside your area of knowledge or expertise (if you are testifying as an expert witness);
• asking a series of questions to which you do not know the answers (this is designed to make you feel foolish);
• asking the question in such a way to appear angry with you or to ridicule or demean you, hoping to goad you into reacting either angrily or causing you to recant or qualify your statements;
• pressuring you so that you feel hurried to answer;
• attempting to get you angry;
• quickly asking a series of questions to which you agree, then including one to which you do not agree;
• asking the occasional question that may seem irrelevant in order to make it difficult to know exactly where the lawyer is going with his/her questioning; and
• presenting you with hypothetical situations and asking you questions about them (this is most likely to happen if you are testifying as an expert witness, but it can happen during general inquest testimony).

Remember that either lawyer may have an agenda that is not necessarily in your best interest. Do not be lulled into a false sense of security that the lawyer is "on your side."

These cross examination techniques can elicit a number of feelings. For example, you may personalize the questioning and feel attacked or angry and respond accordingly. This style of questioning is designed to invoke these responses in you. When you are angry or anxious you do not think as clearly as you would normally. As a result, you may say something you would not have said in a calmer moment, or you appear to be less than rational and controlled in your responses.

Similarly, you may be asked a number of questions to which you do not know the answers. After repeating, "I don't know" many times, you begin to worry that you sound as though you don't know anything. This makes you feel anxious or embarrassed, and you may venture into answering questions that are outside your area of knowledge or expertise.

Remember, it is appropriate to state that you do not know and there are no limits on how many times you say it. If you don't know, you do not know — stay firm in your position. It is important that you never provide answers to questions if you do not actually know the answers. If you do, you will be "on thin ice" and a skilled lawyer may be able to lead you to provide answers that are inaccurate. This makes you particularly vulnerable to contradictions in testimony by other experts or other witnesses. Also, in some situations, lawyers and their clients have used such testimony as evidence that you are going beyond your area of competence — questioning your professional ethics.

Being a witness can be a stressful experience and, for many people, a situation with which they have little or no experience. The following are some common mistakes individuals make while on the stand, as well as some solutions that may be useful:

1. Hearing the first part of the question raised by the lawyer and answering before she/he completes the question. Be sure the lawyer is completely finished, pause a second to formulate your answer and then speak. This helps to avoid partially formed or inadequate answers.
2. Answering more than has been asked of you. Answer only what has been asked of you. Any information that you provide on the stand becomes part of your evidence and is open to cross-examination. Therefore, if you answer beyond the scope of the question, you have now opened an area where you can be further questioned by all parties.
3. Answering questions outside your area of knowledge or expertise. If you are asked a question and you do not have the knowledge to answer, it is quite appropriate to state "I do not know," or "that is outside my area of expertise."
4. Answering impulsively or not taking time to think about your answer before responding. Remember, the court will give you all the time you need (within reason). Poorly formed answers place you in the situation of having to back-track, explain and correct misperceptions. This behaviour decreases the perception of you as a credible witness.
5. Answering questions about someone else's behaviour, reports or testimony. For example, if the lawyer asks, "what do you think Mr. Smith meant when he said ...?" It is quite acceptable for you to say that you are unable to comment on what Mr. Smith was thinking and the lawyer will have to ask Mr. Smith what he meant. However, if you are testifying as an expert witness, it is permissible for a lawyer to ask you your opinion about another person's thoughts, behaviours, etc. If you feel unable to provide an opinion under such circumstances simply state, "I have no opinion."
6. Letting your prejudice or personal beliefs influence your testimony. The court wants the facts. What you saw, what you did, what you heard — or, if testifying as an expert, your expert opinion. You are a reporter. You need to provide the who, what, when, where and how of your observations and opinions. When testifying as a "witness," leave your personal beliefs out of your answers. The lawyer will attempt to capitalize on expressions of personal beliefs. This can place you in the situation of having to do something that is outside your area of expertise or make a commitment (during the inquest) to change something within the system over which you have no authority.
7. Being defensive. Don't defend your program or yourself. Present the facts even if they reflect negatively. It is acceptable to say we did it this way and that it "reflected the state of the art/our knowledge at th.at time. If we were doing it today with today's knowledge we might/would do it differently."

The cross-examination strategies lawyers use are designed to create stress for the witness, causing the witness to respond impulsively or rashly. These stressors can be managed by using the following techniques:

1. Use appropriate self-talk. Self-talk is the ongoing internal dialogue we hold with ourselves. We can learn to control the content of our self-talk and provide calming messages. The following are examples of calming self-talk. These positive messages give you a sense of control and mastery in the situation:
   i) "The goal of this exercise is to answer as honestly and accurately as possible. I will not be goaded."
   ii) "I can speak slowly! I don't need to feel rushed!"
   iii) "The lawyer is simply using this technique to make me angry. I won't respond."
2. Avoid negative and self-defeating self-talk. These negative messages make you feel angry, inadequate and incapable. For example:
   i) "I never know the right answer."
   ii) "I'm going to say something that makes me look stupid."
   iii) "The lawyer is out to get me. This is unfair. She/he has no right to do that."
3. Allow yourself time to respond. Remind yourself that when you pause to answer, what seems like forever to you is in reality only a few seconds at most. Repeat to yourself that you have time to answer, and that pausing before answering gives others the impression that you are giving a thoughtful and considered answer.
4. When you are being asked a question look at the questioner. This will help you to stay focused.
5. If you need time to think or if you didn't understand the question, ask the lawyer to repeat or rephrase the question. This will provide you with an opportunity to collect your thoughts and give you time to think of your answer. For example:
   i) "Are you asking me ... (and put the question into you own words)?"
   ii) "Are you asking me.. (and repeat the original question)?"
   iii) "Could you please repeat the question?"
6. If you are nervous and do not hear or understand a question, ask to have it repeated. Using calming self-talk may also be helpful:
   i) "I don't need to feel anxious. The court will wait for me to answer."
   ii) "The lawyer is simply using this technique to make me feel anxious. I will ask him/her to repeat it until I understand."
7. Remind yourself not to get angry. If you feel personally attacked, remind yourself that this is a strategy lawyers use to influence your answers. If you find yourself getting angry, remind yourself this is not the time to get angry. You can get angry later. Now is the time to stay calm. Self-talk works. Practise the techniques before you go to the courtroom.
8. If the situation for which you are testifying was particularly stressful (e.g., if you are appearing as a victim-witness), it is OK to cry or display other emotions. You may even ask the court for a moment to compose yourself if it is necessary. To help focus, remind yourself of the strength you had to survive the original situation.

When your testimony is over, one of your first questions will likely be, "how did I do?" Elicit feedback from someone who will provide supportive, caring feedback. If at all possible, get someone you trust to go to court with you or, if Employee Assistance is provided, make use of the service. As a psychologist, you will most likely want the support of another psychologist. Another psychologist is in a better position to provide you with more credible (to you) feedback on your performance. Peer support is more likely to enable you to step out of your role as psychologist and allow you to express your feelings of vulnerability.

You may need to vent. Now you can get angry if you need to. Find someone you trust, find an appropriate spot (if possible well away from the courtroom) and ventilate your feelings, express your anger, frustrations, relief, etc.

Now that the task is over, you will likely feel energized. Your body has been in a state of alertness and all your systems have been operating at peak arousal. It will take a little while for your system to return to normal. Get some exercise — take a walk, do some stretching. Allow your body to burn off the excess energy.

Eventually you will begin to feel tired, you've worked hard. Go home or back to your hotel room and have a good rest.

The next day you may find yourself needing to talk to someone, or you may find yourself feeling angry. This is not unusual. People need 24 to 48 hours to process stressful experiences. This may lead to some questions or feelings that you didn't feel the day before. Ventilate your feelings with someone you trust.

As identified in the Prior to the event section, old feelings may be reactivated. You may experience some sleep disturbances or other unpleasant feelings or memories. Talk with a trusted friend or family member. These reactions generally subside in a few days, but if they don't go away in a reasonable length of time speak with a knowledgeable professional. Again, be reminded that these are normal reactions and are related to the stressfulness of the situation.

Attending court is a stressful experience for most people. You can best prepare yourself before, during and after your courtroom experience by practising standard stress management techniques.

1. Maintain a balanced diet. Remember that your body is a machine that requires fuel. You would not run your high performance sports car on inferior fuel, so don't expect your body to perform in a high performance manner (e.g., under stress) with inferior fuel.
2. Ensure that you get adequate sleep. When you're tired, you do not think or react as efficiently as when you are rested. If you are having difficulty sleeping, a glass of warm milk will help. Avoid unprescribed medications as they can disrupt sleep patterns and may impair your cognitive abilities.
3. Exercise regularly. A brisk 20-minute walk each day helps our bodies to reduce the impact of stressful events.
4. Monitor your vices (caffeine, alcohol, nicotine, sugar). During times of stress, we have a tendency to increase the consumption of our favourite sin. Increasing ingestion of these substances places increased demand on our nervous systems and will exacerbate our stress reactions. Be especially careful immediately before your appearance on the stand.
5. Develop and use your support system. Don't be afraid to talk to a trusted friend or loved one. This is not a sign of weakness, it is a healthy coping technique.
6. Learn deep breathing as a relaxation technique (see Appendix A). Deep breathing is a meditative technique that works to reduce the impact of stress. When you train your body to relax on cue, a deep breath can calm you even during your testimony.

Much of the information provided above will prove useful for all personnel. The impending threat of a court appearance is extremely stressful and staff will need support in normalizing their reactions. Review of the above information and rehearsing strategies will help prepare witnesses for court and reduce their anxiety about the experience. This will be particularly important if this is the witness's first subpoena. The material has been summarized in a booklet for staff entitled When You've Been Called to Testify and can be obtained from the author.

Much of the most effective support work for others attending court is less dramatic. It involves ensuring that some basic needs are looked after. The following is a list of essential activities that can significantly reduce the stress of appearing in court:

1. Reassuring personnel that when they are subpoenaed as a result of their work- related activities, the cost of their appearance will be borne by their employer. There have been occasions where personnel have been incorrectly advised that they would have to pay their own expenses.
2. Check to ensure that single parents are able to make adequate baby-sitting arrangements. When you go to court, you are not sure exactly when you will give your testimony. You may have to wait for several days, a circumstance that is difficult for a single parent when the venue is out of town.
3. Where necessary, make arrangements for someone to pick up, drive the witness to the court and bring them home after. If this is not possible, help them make travel arrangements. When you are experiencing anxiety about being a witness you do not need the additional stress of worrying about where the court house is and how you will find it. Further, for some people, going to a strange city can be very intimidating.
4. Ensure that people know where to go when they arrive at the court house, where to park, and where to go for lunch. Most important, make sure they know what time they need to be there.
5. Ensure that the individuals involved in the court process are shielded from the media before, during, and after their appearance. There is usually an appointed member of the organization who provides the press with comments and updates. Personnel should be instructed that they have "no comment." Staff need to be warned that the media may attempt to anger them or elicit sympathy or some other emotion from them — they should respond again with "no comment."
6. Monitor the newspaper(s) to be able to respond to, or support, someone who has been misquoted or presented by the media in a manner that is demeaning or embarrassing.
7. Instruct staff to be careful about what they say while in public areas of the court and when they are at lunch, etc. They should not be discussing the case in any public setting as there may be members of the media, the other legal parties, or the "other side" who can over-hear their comments.
8. Where appropriate, provide support for personnel before, during and after their testimony. Too often, immediately following testimony, the witnesses are forgotten and left to fend for themselves. They may be emotionally high or drained, or may be physically exhausted or confused about their performance. For some people, the "crisis" is now over and it is at this point that their emotions take over. Don't forget some individuals may need someone to talk to the day after their testimony.

The role of the psychologist is to appraise management of the above issues. Depending on the work situation, the psychologist may provide the services directly or work in cooperation with the EAP (Employee Assistance Program) to ensure that the services are put in place. Provision of the above basic services can go a long way in reducing employee stress and all the concomitant problems that go with it.

The information and techniques in this chapter are not meant to be exhaustive, but rather to reflect some of the more common experiences and strategies people use when dealing with cross-examination.

None of us like to go to court, but when we must, it is best to be prepared. If you are likely to end up in the witness-box, familiarity is your best friend. Go to your local court house. Watch the proceedings. Learn about the process under non-threatening conditions. Remember, television does not provide a very accurate picture of what happens in a courtroom — few lawyers are Perry Mason.

Chapter 17 Appendix

Brodsky, S.L. (1991). Testifying in Court: Guidelines and Maxims for the Expert Witness. Washington, D.C.: American Psychological Association.

Pope, K.S., Butcher, J.N. & J. Seelen. (1993). The MMPI, MMPI-2 & MMPI-A in Court: A Practical Guide for Expert Witnesses and Attorneys. Washington, D.C.: American Psychological Association.

Tallent, N. (1993). "Forensic psychological evaluations," in Psychological Report Writing (pp.257-276). New Jersey: Prentice Hall.