consider yourself served - mercy

CONSIDER

YOURSELF SERVEDDan Patterson

Greene County Prosecuting Attorney

July 19, 2018

You arrive at work and find a subpoena

You wonder:

1. Should I just throw the subpoena away and not show up?

2. Can I decline the subpoena or get out of going?

3. Do I have any say in when this court appearance is scheduled?

4. If I have to go, am I compensated for my time?

5. Does testifying about a patient’s medical problems violate HIPAA?

6. Does it matter that I got the subpoena in the mail?

Yes, we (and the child victim) really need you!

Treating Medical Providers – Critical Fact Witnesses

• Called to testify to first-hand knowledge of:

• Medical history provided;

• Statements made by child;

• Examination of child (injuries or lack of visible injuries);

• Diagnosis; and

• Treatment.

• While you are not called as an expert, you can offer objective opinion testimony based on your expertise.

HIPAA allows you to testify

• 160.203(c) - HIPAA rules do not apply when the “provision of State law . . . provides for the reporting of . . . child abuse . . . or for the conduct of . . . investigation, or intervention.”

• This broadly worded exception to HIPAA’s privacy protections permit:

• “reporting” and

• disclosure of information to those conducting “investigation” and “intervention” in CAN cases.

Missouri law empowers you to testify

Section 210.140, RSMo.

• [The doctor/patient privilege] shall not apply to situations

involving known or suspected child abuse or neglect and shall not

constitute grounds for

• Failure to report . . .,

• Failure to cooperate with the [Children’s] division . . . , or

• To give . . . evidence in any judicial proceeding . . .

KEY INFORMATION

• Case number

KEY INFORMATION

• Case number

• Assistant Prosecutor

KEY INFORMATION

• Case number

• Assistant Prosecutor

• Defendant name

KEY INFORMATION

• Case number

• Assistant Prosecutor

• Defendant name

• Date/time of start of trial

KEY INFORMATION

• Case number

• Assistant Prosecutor

• Defendant name

• Date/time of start of trial

• Who to call for information

WHY APPEARANCE TIMES ARE UNCERTAIN

• Jury Trial Dockets

• Unlike office appointments

• More like trauma triage

Responding to a State Subpoena

• Reply right away –

• We will do our best to accommodate your schedule and conflicts.

• Deposition settings usually flexible

• Trial testimony more difficult

• We can provide you relevant medical records ahead of time.

You help the jury apply the law to medical facts

• As a witness you are an objective educator

• Your description of the child’s injuries you observed, or lack of injury, allows

jury to:

• Understand important information:

• Mechanism of injury

• Age of injury, or relative ages of injuries

• Identify inconsistent medical histories

• Apply definitions of: abuse, neglect, physical injury, serious physical injury, etc.

Can’t Prosecutor Just Use a Deposition?

Confrontation Clause Requires Your Presence

“in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”

6th Amendment, U.S. Constitution

We will accommodate you . . .

and we make house calls

• Contact you prefer

• Pretrial meetings

• Will come to you

• Need you to educate us

• Work with you to identify photographs/exhibits

• Determine what you can and cannot testify to

• Prepare you for cross examination

What about of Cross Examination . . .

• Remember you are an expert in your field you are not the lawyer

1 Rule and 6 Tips for Testifying

Rule: Tell the truth

1. Prepare

2. Understand the Question

3. Think before Answering

4. Answer the Question

5. Don’t play lawyer

6. Remember your audience

We Need You to Stop Child Abuse

• We understand this is not something you look forward to

• We appreciate this is not your job

• We will do everything we can to reasonably accommodate you

• We will help you be as prepared and comfortable as possible

• Prosecuting CAN is prevention work

• We appreciate the public service you are providing incidental to your work

QUESTIONS?

Dan Patterson

Greene County Prosecuting Attorney

dpatterson@greenecountymo.gov