Authors

  1. Markowitz, Jenifer ND, RN, WHNP-BC, SANE-A, DF-IAFN

Article Content

This is my love letter to the courtroom, a statement certain to confound. For many, the courtroom feels miles away from patient care. It is adversarial and at times combative. It is tense and intimidating-confusing for the uninitiated. However, for a nurse with a nontraditional career path, one that has bypassed hospital wards, critical care units, and emergency departments, it is the perfect place to hone the craft of nursing.

 

To call me a student of testimony would be inaccurate. I'm a student of nursing, even some 25 years after completing my doctorate. Although I spend much of my professional life teaching prosecutors and defense counsel how to better use medical experts, teaching clinicians how to provide effective and ethical testimony, consulting on civil and criminal cases, and providing expert testimony, that work is grounded less in the study of testimony and more in the study of nursing. It is a deep and articulable understanding of nursing and its foundations that shapes the work I do. To bring my best into the courtroom, nursing must infuse every aspect of the work: knowledge of laws and regulations that guide nursing practice; application of practice standards relative to the issues in a specific case; an understanding of principles of anatomy, physiology, pharmacology, and pathology as they relate to specific facts; and a clear grasp of the evidence base within the scientific literature.

 

Standing firm within my role as a nurse benefits the entire legal process. Although other disciplines may misunderstand (or misrepresent) the role of the forensic nurse, believing that we are an arm of the investigation or there solely to make the prosecution's case for instance, the reality is that forensic nursing is, by definition, a wholly objective healthcare discipline, committed to science and the principles of the profession, and not any one investigation or court outcome. That objectivity ensures that all sides have access to forensic nursing testimony. Staying true to the science means being freed from the pressures of proving anyone's case and, instead, educating the fact-finders (judges or juries) about interpersonal violence, mechanisms of injury, patient care processes, examination findings, and other aspects of the work that we do. It helps judges understand our role as clinicians and not investigators, which can expand the content of our testimony to certain hearsay statements in cases where we were the treating clinician. Moreover, being grounded in nursing as we testify allows us to draw upon our professional foundations during cross-examination, when questions can leave even the most seasoned witness feeling personally attacked. It allows us to provide clinical rationales for patient care decisions, discuss the evidence base for opinions, and concede to gaps where the science has left our relatively young profession without all the answers-because we are a young profession, and there are still many things to be learned. Forensic nursing testimony must make plain the limits of our knowledge base, that we do not have all the answers yet, as individual clinicians or as a profession-not because nurses are incurious or have no scientific discipline of our own, but because as with all science, ours is constantly evolving.

 

Testimony is the place where we must defend our practice and knowledge base. Every time we take the stand, we are tested-how well are we able to articulate the limitations of the scientific literature on genital injury after consensual intercourse? How clear are our explanations about the impact of anoxia on the brain? As a nurse, teaching is elemental-each time we testify, we must evaluate how effectively we have deployed those skills, in working with counsel to assist them in applying the science to the facts in the case and in speaking directly with the fact-finders, conveying critical information to help them reach an appropriate verdict. Every court appearance is an opportunity to enhance our abilities, no matter how long we have been working as a forensic nurse. In the same way that hands-on patient care improves clinical performance, each court appearance improves testimony. More so when we are available to provide the same quality of mentoring in the courtroom that we provide our colleagues in the clinical arena. Testimony, like the medical-forensic examination, benefits from peer review and evaluation. Having a more experienced colleague review the specifics of testimony, including clarity of explanations, cadence, and tone, is invaluable. Our patients should not luck into forensic nurses who can provide skilled court testimony-they deserve forensic nurses who put as much thought and effort into the work that happens in the courtroom as the work that happens in the exam room.

 

For those who feel they are too novice to be proficient in the courtroom, I would submit that regardless of the length or breadth of your curriculum vitae, there are ways you can substantially enhance your capabilities on the stand through simple pretrial preparation: articulate the clinical rationales for the decisions you make with patients; discuss the ways in which your role is grounded in nursing; prepare to be an effective teacher by ensuring you can explain jargon and complex concepts; identify the supporting science for opinions you will be providing and, if it exists, any science that challenges all or part of your opinion (and why it does not apply in this case), and, most importantly, read. Reading is not an optional aspect of forensic nursing practice. Reading ensures that we are able to grow our practices as the science develops and evolves. It allows us to improve on patient care practices, implement enhanced techniques for evidence collection and injury identification, refine our understanding and expectations in medical-forensic examination findings, and yes-testify more accurately and with greater clarity as the body of science that guides our work continues to take shape.

 

The definition of success for the forensic nurse in the courtroom can be confusing. Success is getting up and doing the thing when you are petrified of speaking in public, getting cross-examined, and going back for more. Success is preparing for your fortieth trial like it's your first because all patients deserve that. Success is holding fast when you are being pressed hard on the stand to just go a step farther in your opinion, although the science does not support it. Success is maintaining perspective through the process, recognizing the humanity in everyone involved in the trial, from the lives that are irrevocably changed on both sides of the courtroom to our own potential for secondary trauma, which we risk when we are repeatedly exposed to accounts of violence. Like in the clinical arena, the courtroom teaches us critical lessons each time we step foot through its doorways: There is always an opportunity for professional growth; being mentored and mentoring make us better in incalculable ways; and if we do not take care of ourselves and each other, our practice and our patients will suffer.