Written by Elissa Bessonette, B.Sc, DVM
Nestled among the Rocky Mountains in Banff, Alberta, the IVFSA Court Testimony Workshop was attended by over 50 participants from around the world and included registered veterinary technicians, veterinarians, investigators and prosecutors. The afternoon was spent delving into the nuances, challenges and art of navigating the process of testifying; conversations provided tips on report writing, direct testimony, expert qualification, introduction of demonstrative evidence, cross-examination and court etiquette while offering comparisons between the Canadian and American judicial systems. Most animal related cases in Canada are tried in front of the Court, whereas in the United States, most cases are tried in front of a jury. For CASCMA’s Canadian focus the summary of the workshop will pertain to the Canadian system.
Despite the topic, the setting was informal allowing exploration of learning from different perspectives and levels of experience. Speakers included Drs. Melinda Merck and Margaret Doyle who are collaborating on the 3rd Edition of Veterinary Forensics with an anticipated release in 2027. Prosecutors Diane Balkin (USA) and Samina Dhalla (Canada) offered practical instruction on court proceedings with suggestions helpful for the seasoned and novice expert witness. The following summary is derived from notes taken during the Workshop using slides and comments from presenters Diane Balkin, Samina Dhalla, Dr. Melinda Merck and Dr. Margaret Doyle.
Role of the Expert Witness
The expert witness’s role is to provide testimony from the professional perspective, as a veterinarian, and give opinions on the case with respect to the presence of distress, duration of distress and in cases where it is relevant, the cause of death. You are considered a non-biased opinion regardless of who requested your presence in court. You will be asked at the time of your testimony if you are prepared to give fair, objective and non-biased evidence.
Expert witnesses are most often called by the Crown Prosecutor; however, the Defense may request your opinion as well. Know who you are talking to. If subpoenaed by the Prosecution (as is common), and the Defense contacts you, it is advised to request questions be emailed and tag the Prosecution on the email with any responses you provide. Defense will receive all reports, medical records and demonstrative evidence you have given to the Prosecution and often this is sufficient.
If you have not previously attended court for the purpose of testifying as an expert witness, feel free to contact the lawyer and let them know. Also, ask what field the lawyer intends to qualify you in at time of qualification. You cannot be qualified above your qualifications or experience level. For the most part, as a veterinarian, you will be qualified as an expert in the field of veterinary medicine. Ask for a list of questions they will be asking before you attend court but do not send the answers back to these questions (or they will need to provide this to the Defense). If you would like to see how court testimony generally flows, you can ask for previous court transcripts to understand the types of questions you may face (on direct and cross examination).
Navigating the Courthouse and Courtroom
It may seem obvious, however, this is one of those times where it is best if you know where to go and when to get there. Be sure to account for going through security. Remember to go through any bags you intend to bring and take out those syringes and needles you meant to put in the sharps container at work (from your foster animals at home, obviously). Dress professionally and show respect to the venue and the proceedings. Do not talk about the case to anyone while waiting to enter the court room. Follow the lead of the Court clerk when entering the Court room and pause when they pause. Leave belongings on a spectator bench. If you bring anything with you to the witness stand, you will need to ask if you can refer to it and it should have been disclosed to the Defense (no new info in Court). You can request copies of your Curriculum Vitae or any statement or report you provided to the Prosecution so that you may refer to it when you are being questioned but remember to ask for permission each time you want to refer to these documents to refresh your memory. Be prepared to stand in the witness box (wear comfortable shoes).
You are providing your professional opinion to the Court, so it is ideal to direct your answers to the Judge. Be calm, confident and professional. Your job is to educate, not advocate. Speak clearly and firmly using terms and definitions that are easily understood. Listen to the question carefully, if you cannot answer, say so or ask for the question to be reworded. Above all, do not lie. Stick to the facts and use neutral language (objective, not subjective).
Qualifying as an Expert
Before you even start on the case at hand, you will need to be qualified as an expert witness in the eyes of the Court. This amounts to a run through of your Curriculum Vitae. It is best to provide an up-to-date copy of your CV, and it is ideal to tailor this document to the situation. If you have previously been qualified as an expert witness, the cases you attended can be included in your CV. Any relevant professional development can also be listed, especially if it pertains to the case.
We are always learning. This is not a job interview, but it will feel similar in that your qualifications and experience will be assessed. For example, you might be asked how many cats you have examined over the last year if you are called on a case involving cats and you will be asked questions on your education and experience. Feel free to refer to your CV if you need to remind yourself of dates or details but remember to ask first. Defense may try to object to you as an expert, depending on the case material, (always a fun experience as a veterinarian to have someone deny that you are an expert in veterinary medicine, if not a DVM, then who?). If you have testified for the Prosecution in the past, be prepared that this may be pointed out as a bias. This should be waived by indicating that your obligation is to the court and to give fair, objective and non-biased evidence.
Don’t despair, even though it very much feels like you are on trial, you are not responsible for the outcome of the case. This is up to the lawyers and the judge. You are there to give your professional opinion based on your education and experience.
Direct Examination
Once you have qualified as an expert witness, the lawyer that retained you (subpoena) will be the one asking questions during the Direct Examination about the case (who, what, when, where, why). Tell the court, by answering questions posed, what happened to the animal in your expert opinion. Explain vet speak in common terms. If you need to look at your report to verify a detail, ask to refresh your memory. Using page numbers on your report when you write it will help you reference to the Court where in your report you are referencing. During your testimony, if there is an objection, stop talking. Wait for the lawyers to sort out their objection and proceed when directed. Ask for the question to be repeated if you don’t remember but often the lawyer will rephrase the question due to the objection.
To increase the value of your testimony, use demonstrative evidence. This could include wound and injury charts, body condition scoring charts or photographs. The witness (you) will need to identify the evidence provided and explain how you are familiar with the evidence and attest to the fact that the evidence is true and accurate. Questions will be open ended.
Cross Examination
Prosecution must turn over police reports, witness and defendant’s statements, all forensic reports, videos and photos to the Defense. Be aware of what was submitted. It is required that they must disclose any evidence that negates or decreases sentencing in the case. Once a plea has been entered, the court has 18 months to try the case. Any new disclosures at the time of trial can result in an adjournment (continuance) and risk that case being thrown out.
The purpose of cross examination is to create doubt and confuse the judge or jury. The Defense attorney’s goal is to mitigate their client’s guilt, and they will attempt to do this by showing witness bias. Creating reasonable doubt may be done by getting you to contradict your facts, point out information that was not in your report or demonstrate bias. As a point of potential confusion, lawyers generally do not understand differential diagnoses. Clarification of this matter can be achieved by explaining that the list of differential diagnosis is not a determination of opinion for the animal but possible diagnoses for the clinical symptoms. If not included in the medical record, the record would be incomplete, and you would have been negligent as a veterinarian.
If a question falls outside your expertise, make it clear you cannot comment on it as an expert (i.e. randomly asks about a horse when you have been strictly small animal practice). Cite authoritative texts, articles, opinions and standards. If you make changes to your report before the court date due to new information, you must reveal these changes prior to Court.
It is the job of the attorney to guide the testimony. Cross examination will feel like they are trying to trip you up. Answer the questions honestly and concisely. Don’t volunteer information, don’t guess, don’t argue and don’t embellish. The Prosecution will object if they feel they need to and can clarify responses on the Redirect. If they feel the line of questioning is not harmful to the direction of the case, they may let it play out. Remember, it is not up to you to win or lose the case, you are providing your expert, objective, unbiased opinion.
If you are asked if you are being paid, be honest. You are being paid for your time, not your opinion.
Don’t lie, best of luck.