1. MODULE 9 Prevention through Documentation Project
Report Writing and Testifying in Court
CONTRIBUTORS:
Vincent Iacopino, MD, PhD, Physicians for Human Rights
Alejandro Moreno, MD, JD, Boston Center for Refugee Health and Human Rights
Uwe Jacobs PhD, Survivors International
Kathleen Allden, MD, Indochinese Psychiatric Clinic
PtD Project (IRCT, HRFT, REDRESS, PHR)

2. Module 9 Outline Written reports General Considerations Content
Conclusions
Guidelines for Medical Evaluations of Torture and Ill Treatment (Istanbul Protocol, Annex IV)
Inconsistencies
Providing testimony in court
Court testimony guidelines and maxims
Mock Judicial Proceeding
PtD Project (IRCT, HRFT, REDRESS, PHR)

3. Written Reports Purpose:
Document evidence of torture and ill treatment and effectively communicate this evidence to adjudicators
Provide expert opinions on degree to which his/her findings correlate with individual’s allegation of abuse
Each written report and oral testimony represents opportunity for clinicians to educate adjudicators on physical, psychological evidence of torture
PtD Project (IRCT, HRFT, REDRESS, PHR)

4. Written Reports Contexts for medial reports/testimony:
Prosecution in national or international courts of alleged perpetrators
Claims for reparation
Challenging credibility of statements extracted by torture
Identifying need for further care and treatment
Identifying national and regional practices of torture in human rights investigations
Support of allegations of torture in asylum applications
PtD Project (IRCT, HRFT, REDRESS, PHR)

5. Written Reports Considerations for written reports:
Conducted with objectivity and impartiality
Do not over-interpret the findings and thus diminish quality of evidence
Define medical terminology, no jargon
Clinicians should
have specific training in forensic documentation of torture and other forms of physical and psychological abuse
have knowledge of local prison conditions and torture methods
review all relevant materials
not include in written reports or oral testimony any opinion(s) that cannot be defended under oath or during cross-examination
Any discrepancies should be pursued to point of clarity
PtD Project (IRCT, HRFT, REDRESS, PHR)

6. Written Reports Considerations for written reports:
Physical and psychological evaluations of alleged torture victims may provide important confirmatory evidence of torture. However, absence of such physical evidence does not suggest that torture did not occur as such acts of violence against persons frequently leave no marks or permanent scars
Historical information such as descriptions of torture devices, body positions and methods of restraint, descriptions of acute and chronic wounds and disabilities, and identifying information about perpetrators and the place(s) of detention very useful in corroborating applicant’s allegations of torture.
PtD Project (IRCT, HRFT, REDRESS, PHR)

7. Written Reports Considerations for written reports:
In clinician’s interpretation of findings, he/she should relate various categories of evidence, i.e., physical and psychological evidence of torture, and historical information as well.
Effective written reports and oral testimony require accurate and effective communication skills
Quality of any testimony, whether written or oral, can only be as good as the interview and examination that was conducted
PtD Project (IRCT, HRFT, REDRESS, PHR)

8. Content of Written Reports
The examiner should
Document physical and psychological evidence of injury and abuse
Correlate degree of consistency between examination findings and specific allegations of abuse by patient
Correlate degree of consistency between individual examination findings with knowledge of torture methods used in a particular region and common after-effects
Render expert interpretation of findings of medical-legal evaluations and provide expert opinion regarding possible causes of abuse in court hearings, criminal trials and civil proceedings
Use information obtained in appropriate manner to enhance fact finding and further documentation of torture
PtD Project (IRCT, HRFT, REDRESS, PHR)

9. Content of Written Reports
Medical expert qualifications:
List educational and professional qualifications
Highlight prior experience examining survivors of torture and trauma and any experience working with individuals who suffer from common psychological symptoms such as PTSD and Major Depression
Participation in training and seminars related to torture survivors
Attach a copy of curriculum vitae
May be helpful to refer to clinician’s application of Istanbul Protocol standards in his or her medical evaluation
Source of case referral and reason for the evaluation
Note whether the evaluation was conducted on a pro bono basis
List of any background documents read beforehand if required
PtD Project (IRCT, HRFT, REDRESS, PHR)

10. Content of Written Reports
Generally a written report contains:
Account of event(s) as described in Module 3
Description by individual of his or her physical and psychological symptoms and signs at the time of alleged ill-treatment, and account of how symptoms evolved with or without medical treatment
Description of individual’s physical and mental health at time of interview(s) and how they have changed with treatment.
Note of any medical treatment in detention, or any treatment that was requested but denied
Account of the physical and psychological findings from interview(s)
Professional opinion on likely causes of findings, discussing other relevant possible causes attributed to torture
Summary and conclusions of overall evaluation
Any relevant recommendations for additional tests, consultations, and/or need for treatment services.
Depending on the intended forum, a summary of the findings of other team members could also be needed, or each might need to provide a separate report. Copies of x-rays, photographs or other reports also can be attached to the affidavit where appropriate and available.
PtD Project (IRCT, HRFT, REDRESS, PHR)

11. Content of Written Reports
Some trial attorneys and judges have objected to affidavits in which medical professionals recite information provided by the alleged torture victim to the professional
Clinician should be careful to state only that individual “states” or “reports” that a specific incident occurred
PtD Project (IRCT, HRFT, REDRESS, PHR)

12. Content of Written Reports
Written reports should comment on:
Emotional state of person during interview
Symptoms, history of detention and torture, and personal and family history prior to torture
Factors such as the onset of specific symptoms in relation to the trauma, the specificity of any particular psychological findings, as well as patterns of psychological functioning
Additional factors such as forced migration, resettlement, difficulties of acculturation, language problems, loss of home, family, social status, as well as unemployment
If formal psychiatric diagnosis is given, reasons should be explained
PtD Project (IRCT, HRFT, REDRESS, PHR)

13. Content of Written Reports
Conclusion: opinion on extent to which all sources of medical evidence corroborate individual’s specific allegation of torture and ill treatment
Additional sources of information may include:
Copies of previous court decisions about individual
Correspondence from other health professionals to whom patient has been referred
Country-specific information on torture and ill treatment practices
Account of event(s) as described by the individual
Notes on individual’s description of his or her physical and mental health
Records of psychological and physical findings from the interview(s)
Results of any clinical investigations
Recommendations for further treatment
PtD Project (IRCT, HRFT, REDRESS, PHR)

14. Guidelines for Medical Reports
1. Relevant case information
2. Clinician’s qualifications
3. Statement regarding veracity of testimony
4. Background information
5. Allegations of torture and ill treatment
6. Physical symptoms and disabilities
7. Physical examination
8. Psychological history/examination
9. Photographs
The following guidelines for medical reports is included in Appendix IV of the Istanbul Protocol.
These guidelines are not intended as a fixed protocol. Rather, they should be applied with due consideration to the purpose of an individual evaluation and a reasonable assessment of available resources.
Note that assessments of physical and psychological evidence of torture and ill treatment may be conducted by one or more clinicians depending on their qualifications.
PtD Project (IRCT, HRFT, REDRESS, PHR)

15. Guidelines for Medical Reports
10. Diagnostic test results
11. Consultations
12. Interpretation of physical and psychological findings
13. Conclusions and recommendations
14. Statement of truthfulness (for judicial testimonies)
15. Statement of restrictions on the medical evaluation/investigation (for subjects in custody)
16. Clinician’s signature, date, place
17. Relevant appendices
PtD Project (IRCT, HRFT, REDRESS, PHR)

16. Inconsistencies
Torture survivors may have difficulties recalling and recounting specific details of their torture experience(s) because of:
Factors directly related to torture experience
Factors related to psychological impact of torture
Cultural factors
Factors related to interview conditions or barriers of communication
Inconsistencies that are attributable to an individual’s torture experience may, in fact, support an individuals allegations of abuse, rather than undermine it
It is extremely important for clinicians to clarify all inconsistencies prior to report writing or testifying in court
PtD Project (IRCT, HRFT, REDRESS, PHR)

17. Testifying in Court
Purpose: Present oral material that has been submitted in written report and respond to questions from lawyers and adjudicators
Clinicians should:
Anticipate challenges to his/her testimony
Bring all relevant sources of evidence to court
To extent possible, educate court about physical and/or psychological evidence of torture
Proceedings usually include:
Certifying the clinician as an expert witness
Direct examination by the alleged victim’s attorney
Cross-examination by the opposing attorney
“Redirect” questions by the alleged victim’s attorney
PtD Project (IRCT, HRFT, REDRESS, PHR)

18. Testifying in Court
Possible responses to challenges regarding clinician’s cross-cultural knowledge:
Expertise that he/she has with respect to culture in question
Cross-cultural research on psychological trauma and symptomatology indicating valid application of, for example, PTSD criteria across cultures
Skills in clinical listening and assessment which allow exploration of cross-cultural experience without being a specialist in particular culture
Common sense and face value components of the assessment process. (i.e. marked emotional distress on recounting the alleged torture and ill treatment)
PtD Project (IRCT, HRFT, REDRESS, PHR)

19. Testifying in Court Providing opinions on an individual’s credibility:
Finding of credibility is a legal matter; responsibility of the judge
Expert witness is one resource that judge draws upon to make determination
Clinician need not feel compulsion to make that determination for the judge, and, indeed, judges may resent an expert who tries to do so
Clinician should respond to attorney’s and the judge’s questions on credibility as thoroughly and professionally as possible and let judge arrive at his/her own conclusion
PtD Project (IRCT, HRFT, REDRESS, PHR)

20. Testifying in Court Some general guidelines for oral testimony
Do not “react” to provocative statements
Clarify questions that you do not understand before providing an answer
Answer questions directly and succinctly. However, take the opportunity, when available, to editorialize and educate
Do not offer opinions on subjects about which you are not qualified to comment
Speak clearly, slowly, and make eye contact with whomever you are speaking.
See Stanley Brodsky’s Testifying in Court: Guidelines and Maxims for the Expert Witness; and The Expert Witness: More Maxims and Guidelines for Testifying in Court.
PtD Project (IRCT, HRFT, REDRESS, PHR)

21. Mock Judicial Proceeding
Group Activity: “testifying in court” using evaluation findings from Modules 7 and 8.
Students should use their written findings as the basis for their expert testimony.
Ideally, each student should have an opportunity to practice testifying on their medical evaluation findings for at least one case.
One or more students should assume the role of the medical expert and one or more students should assume the role on a cross-examining lawyer (or prosecutor/judge).
PtD Project (IRCT, HRFT, REDRESS, PHR)

22. Mock Judicial Proceeding
Consider the following questions for the “cross-examining lawyer”:
Describe your qualifications as a clinician, in general, and as an expert on the psysical and psychological evidence of torture.
Were you paid to conduct this evaluation?
Did the attorney you are working with prepare you for this court hearing?
Describe your primary findings (physical and psychological).
What are the possible causes of the findings you described? Are there other possibilities?
PtD Project (IRCT, HRFT, REDRESS, PHR)

23. Mock Judicial Proceeding
Consider the following questions for the “cross-examining lawyer:”
Is it possible that the physical injuries were self-inflicted, by another inmate, or in the course of a struggle with police/security forces.?
Is it possible that other traumatic experience which happened before or after the alleged torture are the cause of the detainees psychological symptoms?
Was a proper chain of custody maintained for the collection of evidence?
What are your conclusions regarding the detainee’s allegations of torture and ill treatment?
PtD Project (IRCT, HRFT, REDRESS, PHR)

24. Mock Judicial Proceeding
Consider the following questions for the “cross-examining lawyer:”
Did you find the detainee credible? Why or why not?
Were there any inconsistencies observed in your evaluation? How do you explain these?
How do you know that the detainee is not faking the symptoms that he/she alleges?
Do you have any additional recommendations?
PtD Project (IRCT, HRFT, REDRESS, PHR)