Witness For the Prosecution

A Star of Life is imposed over a hand holding a gavel.
JEMS composite image

The Paramedic’s Role in a Criminal Trial

Introduction

An important, often overlooked task a paramedic may undertake is testifying as a witness in a criminal trial. In most cases, a paramedic will be called to testify as a witness for the prosecution. Being subpoenaed to testify can be unnerving. Being ill-prepared to take stand can be dangerous.

The purpose of this article is to provide paramedics with an understanding and appreciation of their roles as prosecution witnesses by delving into the following areas:

  • The subpoena/pre-trial preparation
  • The EMS report
  • Frequently encountered legal/factual issues
  • Hearsay
  • Testifying in open court

The Subpoena/Pre-Trial Preparation

Many questions the subpoenaed paramedic may have can be easily answered by taking a cursory look at the subpoena itself.

A subpoena captioned “The United States of America” or “ People of the State of ABC” or, “City of XYZ” vs a named individual [or named individuals] is a tell that the paramedic is being called to testify in a criminal trial.

If the subpoena was sent or served by an attorney whose office is captioned as “U.S. Attorney” or “District Attorney,” “State’s Attorney,” or “Prosecuting Attorney,” the paramedic is being called as a witness for the prosecution. If, however, the subpoena was issued by the Public Defender’s office, a law firm or partnership, or a person titled, “Attorney at Law” or “JD,” the paramedic is being called as a potential defense witness.

Related

Every fire department and ambulance service should have subpoena policies or procedures in place carried out by a privacy officer. A proper subpoena should reference an adult patient’s name/minor patient’s initials and date of birth, or a date/time/location of treatment or a report number (Author’s note: the use of he/him/his assumes and includes all genders). Upon receiving the subpoena, the designated representative should contact the subpoenaing attorney in order to discuss the case and get a general sense of his paramedic’s prospective role in the trial.

Cases are not always litigated on their first “set for trial” date – and rarely begin on time. It is appropriate to ask an attorney to extend professional courtesy to a paramedic under his subpoena, keeping his witness on “stand-by” or “phone hold” – and to take into consideration the realities of the job’s 24/48, 1-2-3, Red-Gold-Black and Kelly Day calendar. The initial contact between the department and the attorney will often set the tone for their workability throughout the trial.

It is important that the department be open and accommodating with the attorney and to expect the same in return. This arrangement applies to both prosecutors and defense attorneys.

The Paramedic/Witness

Most persons who are called to the stand testify as lay witnesses – or as expert witnesses. The paramedic is in a unique position to be called to testify as both. 

Generally, a lay witness testifies about what he has observed through any or all of his senses, whereas an expert witness possesses specialized knowledge beyond that of a lay witness and if qualified, may offer an expert opinion as to some relevant factual or legal issue.

Paramedics routinely respond to crime scenes during or immediately after the commission of a crime, which makes important first-hand observers of witnesses, victims and offenders. As later discussed, paramedics, however, can and often do testify as experts – and render opinions as to their lay witness observations – and even the lay witness testimony of others.

Unlike police officers who are viewed both positively and negatively and whose tactics and actions are so highly scrutinized, paramedics are generally well-liked and their work is typically praised rather than criticized. Even doctors, who certainly can render the same expert opinions as paramedics, are regarded in many different ways. For these reasons, of those three professionals, paramedics are the always the witnesses of choice.

There are four types of lay witnesses: Eye, occurrence, circumstantial and statement:

Eyewitness: One who directly observed an event (Staged paramedic sees domestic battery suspect resisting arrest.)

Occurrence witness: One who observed some portion of an event. (A paramedic’s head-to-toe assessment of a domestic battery victim.)

Circumstantial witness: One who took note of something, which tends to prove or disprove an event. (Paramedic observes signs of forcible entry into the domestic battery victim’s broken-apart home.)

Statement witness: One who has heard a person make a statement that is admissible as either an exception to the hearsay rule or as non-hearsay, as later discussed infra. (Paramedic hears alleged batterer yell, “Tell them that it was an accident. You know I love you.”)

The paramedic should ask the prosecutor if he is being called as an expert witness and, by definition,  should expect to provide specialized information and offer professional opinions in order to assist the trier of fact [Judge or Jury] with understanding certain facts or issues.1

A prerequisite to testifying as an expert is being qualified as one. This means that the attorney offering the expert [known as the “proponent”] must first persuade the judge that his claimed expert possesses requisite education, training and experience – and in a field or area that is relevant to the trial.

In the case of a paramedic, the primary relevant field of expertise would be “prehospital emergency medical care,”  though depending upon the paramedic – and of course the case facts/issues – it could be firefighting, apparatus engineering, arson investigation, building construction and so forth.

Qualifying the paramedic as an expert is accomplished by presenting his career-related education, training and experience. Prior to trial, the paramedic may be asked to provide the prosecutor (who would be obligated to tender to opposing counsel) his curriculum vitae (CV) – which is a more-detailed resume. The CV should list all diplomas, degrees, licenses, certifications and awards the paramedic has earned.

Once a paramedic is tendered as an expert then questioned by both sides, the court will rule. If properly qualified, he will be accepted as an expert and may give expert opinion as to both physical evidence and testimony. The proponent may then ask the expert to render expert opinions “… within a reasonable degree of scientific certainty… “2 Unlike a lay witness, an expert witness may be asked to consider hypothetical questions, to critique another expert’s opinion and to comment on a lay witness’s sworn testimony. The proponent’s expert may be challenged by the opponent’s defense expert witness, creating the proverbial “battle of the experts.” The following are subjects about which the paramedic may be asked to render an expert opinion:

  • The existence of injuries (e.g., where, how many);
  • The nature of the injuries (e.g., entry/exit, laceration, avulsion, open/closed);
  • The seriousness of the injuries (e.g., full thickness; significant arterial blood loss, acute intercranial pressure, level one trauma, “10” rated pain);
  • The patient’s level of consciousness and responsiveness; coherence or impaired state (e.g., AVPU, GCS, CSS).

The EMS Report

EMT-B students are warned very early in their training that if you didn’t document it, it didn’t happen.3 But this is not entirely accurate. It would be impossible for a paramedic to document every detail of a paramedic call, especially those that do not pertain to prehospital, patient care. Can a paramedic testify to something not contained in his EMS report? Absolutely. After all, if something happened, then it happened. To be clear, a paramedic who testifies to the undocumented will face a verbal attack during cross examination, known as “impeachment by omission,” which the opponent will raise during closing statements.4

This type of impeachment is manageable, seasoned prosecutors know to preempt it by “fronting” any relevant omissions during direct examination. In most every trial, a witness who testifies about an event after having documented it will be fair game — and there always be something undocumented.  

Paramedics can also manage it by completing the narrative portion of the EMS report in a summary form. The author strongly recommends that the paramedic writing the narrative begins with “In summary.”

In this same vein, it is recommended that the paramedic writing the narrative refrain from using direct quotes. The better practice is to summarize any relevant statements. So long as the essence of the statement is documented, that is a summary and not direct quote is acceptable. This raises an important caveat: Anything said that has no discernable meaning, such as “Redrum. Redrum. Redrum,” may be directly quoted. Examples of ill-advised direct quotations vs. properly summarized versions:

  •  “I want to kill myself.” vs. ‘Patient spoke of suicide.’
  • “Only idiots wear seatbelts.” vs. ‘Patient had not been wearing his seatbelt.’
  • “My heart feels like it’s on fire.” vs. ‘Patient complained of a substernal burning sensation.’

The importance of proper documentation cannot be overstated. Most jurisdictions mandate paramedic reporting, as in the case of any indication of elderly or child abuse encountered during patient care.5

Ultimately, it is the testimony of a live witness – and not written words – that the trier of fact, judge or jury, will assess. If the paramedic is forthright and honest, even his undocumented testimony will be believed.

The following transcript excerpt is from a defense attorney’s cross-examination of the author’s paramedic. Not satisfied with having established impeachment by omission [given his EMS Report’s seven-word narrative {“Infant Full Arrest Code 26 to St. James”}], the attorney began to needle the paramedic, daring him to explain how he was able recall so much – and years later – given how none of it was documented. The author knew not to utter a peep.

The paramedic turned to the jury and said: “I’ve been a paramedic for over twenty-five years, and I can tell you this. I remember that call like it was yesterday, and I’ll remember it for the rest of  my life…”6

Frequently Encountered Legal/Factual Issues

In a criminal trial, the prosecution is obligated to prove beyond a reasonable doubt each and every element of the charged offense. A criminal offense consists of an act or series of acts (L. actus reus) and as a mental state (L. mens rea). As to the mental state component, the prosecution must prove – depending upon the charge – that the defendant acted recklessly, negligently, knowingly, intentionally, or with a specific intent (i.e., “the intent to kill”).

When it comes to proving crimes of violence, the prosecution will select the exhibits and present the testimony that best describe the nature and extent of the victim’s injuries – and through as many non-police witnesses as practicable.

Paramedics can establish a perpetrator’s intent, knowledge, or specific intent (to injure/to kill) by testifying to the number, depth, length, severity and location of their crime victim’s/patient’s traumatic injuries.  

Numerous stab wounds about a victim’s body demonstrate the intent to kill as does a single stab wound to a vital organ or major vessel. Defensive wounds to the victim’s arms, hands and fingers strongly suggest a purposeful, intentional attack. Paramedic testimony as to the location, mechanics and type of entrance wounds may elaborate upon other witness accounts – or in and of itself can establish a variety of things, including, for example, not only that a deadly weapon was used, but how, from where and even in what fashion it was likely brandished and used.

In short, the paramedic/witness is an important and often indispensable component of not only the prosecution’s case in chief, but also in rebuttal; to refute outlandish defense assertions or claims.

Affirmative Defenses

An affirmative defense may be raised by the accused in order to provide an excusable justification for his acts, rather than to deny  committing them. In layman’s terms, affirmative defenses are the “yes, I did it, but…” defenses.

The following are most common ones raised by the accused:

Insanity

The insanity defense is rooted in English Common Law. A defendant who avails himself of this affirmative defense will claim, depending upon the jurisdiction’s statutory provisions, that due to some mental illness/defect, he was unable to understand and appreciate the criminal nature of his conduct and/or control his impulses and/or conform his conduct to the law.7 To refute claims of insanity, the prosecution may call the paramedic to testify about a crime scene. A crime committed in secrecy, followed by flight, removal of evidence or concealment of identity suggests a perpetrator well aware of the nature of his wrongdoing, therefore perfectly sane. The paramedic’s scene size-up often reveals important details not only about the crime itself, but also as to the mental state of its alleged perpetrator.

To refute an insanity defense, prosecutors will point to the accused’s pre-crime planning and preparation and his post-crime actions, such as his denials, flight from the scene and destruction or removal of evidence. Paramedics can provide this testimony and from a unique, arguably more objective, perspective than either responding police officers or later arriving crime scene technicians.

Self-Defense

Under the law, a person is justified in his use of reasonable force to the extent that such force is necessary for him to repel or neutralize an aggressor.8 Prosecutors often call paramedics to describe the position and mental/emotional state of a patient encountered – and everything about traumatic wounds and injuries he assessed and treated.

Take for instance a crime victim who suffered a variety of defensive stab wounds to the hands and arms, or exclusively to his posterior, or was shot multiple times  from long-range, or a crime scene displaying no signs of struggle or theft. This is the type of evidence that can very effectively counter a defendant’s ‘mutual combat’ and ‘self-defense’ claims and rule out that it was merely a property crime that unintentionally went wrong.

Accident

The defense of accident, while technically not an affirmative defense, conceptually is quite similar in nature. The offender who avails himself of this defense may admit that he committed the act that caused injury/death yet insist that his acts were void of any intent, knowledge or purpose.

Injuries resulting from substantial and carefully directed force, multiple injuries or those inflicted over a protracted period of time can hardly be considered accidental in nature. While an outwardly distraught parent might say that the hot-water burns suffered by his child resulted from a terrible accident, if the child was forcibly immersed, the paramedic’s primary and secondary patient assessment (coupled with a careful scene size up) will prove what really happened.9

When it comes to affirmative defenses and claims of accident, it is often those subtle observations made of the scene, during the patient assessment, that will either corroborate them or refute them. For example, the paramedic who provided care to a young victim who suffered partial-thickness burns bearing an iron pattern could be called to testify certainly as an occurrence witness, but also as an expert, in order to offer an opinion that those injuries were not likely either self-inflicted or accidentally caused.

Hearsay

The single-most persuasive testimony that a paramedic can present at trial is by recounting statements, admissible through the varied exceptions to the hearsay rule. The classic definition of a hearsay statement is: “An out-of-court statement being offered at trial for the truth of the matter asserted therein.” 

Generally, a testifying witness may not recite the words of another. American jurisprudence is adversarial in nature, rooted in the principle of witness confrontation and cross-examination. Without the person who made a statement (known as the declarant) present in open court, neither he nor his words can be effectively and properly scrutinized. In the interests of fairness, hearsay statements are generally inadmissible at trial.

As with so many areas in the law, however, the rule prohibiting hearsay statements is subject to a variety of well-settled exceptions. Certain statements, made by certain declarants and under certain conditions are considered reliable and therefore may be admitted through the witness who heard them.

The following are notable exceptions to the hearsay rule; ones that may likely give rise to paramedic trial testimony:

Dying Declarations

One of the oldest exceptions to the hearsay rule, the dying declaration, presupposes that a person faced with impending death will usually speak truthfully. Rooted in religion, this exception to the hearsay rule is based upon the belief that one would never choose to “meet his maker” after having just lied.11

As with every hearsay exception, there are  requirements that must be met prior to a dying declaration being admitted into evidence. The requirements for its admission are set out in a checklist, known collectively as “the foundation.” The foundation for a dying declaration is as follows:

  1. The declarant made a statement that is relevant to an issue at trial;
  2. When the statement was made, the declarant had a sense of impending death;
  3. The statement describes or details the circumstances under which the declarant’s fateful/grave condition came about;
  4. The statement is factual in nature;
  5. The declarant was competent when the statement was made.12

The prosecution may establish the “sense of impending doom” element by eliciting something the declarant was told by a witness (“it doesn’t look good,”) by something the declarant said (“goodbye, cruel world,”) or by describing the ominous nature of the declarant’s injuries (multiple gunshot wounds to the thoracic cavity).

Most dying declarations concern either the identity of the person or persons who committed the fatal crime or its motive. Examples of dying declarations a witness might testify to are: “I can’t believe my own son shot me;” “Why didn’t she just take my wallet?” “’White pickup truck! White pickup truck!”

Spontaneous Declarations

A spontaneous declaration is defined as a statement made under the stress or excitement, which is caused by a startling event or condition.13 It stands to reason that with no time to reflect, embellish, filter or fabricate, whatever is blurted out is  presumed reliable, and thus may be introduced, by not only the witness who heard them but by the declarant himself. The foundation of a spontaneous declaration is as follows:

  1. A startling event occurred;
  2. The declarant had personal knowledge of or experienced the event;
  3. The declarant made a statement about the event;
  4. The statement was made when the declarant was affected by the startling nature of the event.14

Ideally, the declaration immediately followed or was reactive to the event. Even if not, so long as the statement was made within a reasonable time after the event and was the by-product of the declarant’s still-excited state, it may be deemed reliable, hence admissible at trial. Moreover, as with the dying declaration, the fact that a statement (He’s going to kill someone!) was made in response to a question – even a rhetorical one – (Am I seeing things?) will not necessarily render it inadmissible.

Similar to the dying declaration, the spontaneous declaration may establish the identity of the perpetrator(s) and his motive, though they are typically introduced to establish the time, place, sequence and nature of  the event itself. The author believes that more profanity-laced they are, the more persuasive they prove to be.

Treatment/Diagnosis Statements

Another important exception to the hearsay rule is found in any statements made for the purpose of receiving medical treatment or diagnosis.

Treatment/diagnosis statements are those statements made by the patient to a person rendering medical care, which relate to any facet of patient assessment and treatment. This exception to the hearsay rule holds that an individual has an incentive to be honest and forthright in response to questions that directly relate to his injurious or ill condition. Therefore, a patient’s history/assessment/ survey/treatment-related statements are considered reliable and admissible at trial. The foundation for treatment/diagnosis statements are as follows:

  1. The declarant was being treated as a patient;
  2. The declarant made a statement to a person treating him;
  3. The statement directly pertained to the treatment/diagnosis of that patient.15

This hearsay exception is certainly narrower than those previously described. For example, under this exception, a paramedic could testify that the patient told him that he was stabbed, where he was stabbed and with what. But since the identity of the perpetrator is not pertinent to treatment/diagnosis, the paramedic would probably not – under this exception to the hearsay rule – be allowed to testify to who the patient told him committed the stabbing. Though in light of what prehospital trauma life support (PHTLS) training suggests about the relationship between the gender of a stabber and the likely type of resulting stab wound, a paramedic just might be permitted to recite what the victim told him regarding the gender of the attacker.16

Statements Made By an Accused

Statements made by the defendant are admissible at trial as “non hearsay.” These statements generally fall under one of two categories: admissions and false exculpatory statements.

It is important to point out that in a criminal trial, the prosecution and only the prosecution may introduce out-of-court statements made by the accused. Not even the defendant, should he choose to testify at trial, may testify to statements he made prior to trial (such as denials or proclamations of his innocence) –  unless purposely baited out of him during cross-examination as a trial strategy.

Such out-of-court statements are considered non-hearsay rule if offered by the prosecution; yet if offered by the defendant and considered hearsay, it is inadmissible.17

Paramedics may encounter perpetrators at the scene of a call; ones who just can’t help themselves from offering outlandish excuses or making proud admissions to the crimes they just committed. 

Also, paramedics are routinely called to police lockups in response to arrestees seeking medical attention, only to find themselves playing the role of sounding board for a now-remorseful charged defendant. DUI-related motor vehicle crashes, are very often the result of an arrestees who, more times than not, claim they consumed “just one or two beers.”

The troubling statements paramedics endure are during domestic battery victim calls; those made by the disingenuous parents of a helpless, young child; the self-righteous, abusive spouse; his abused spouse who assumes all responsibility. The following are examples of statements about which a paramedic would  testify at trial:

“We told her to stop wetting the bed or else!”

“So, you’ve never smacked your wife? I guess I’m not a perfect husband like you.”

“I fall a lot. I am only sad because I am so clumsy.”

“Look at these (obviously upwardly inflicted) scratches on my arm. He did this to try and kill me!”

“He’s a good man. He’s just under a lot of stress all of the time.”

“I told you to stop.”

“I told him to stop.”

 “I tried to stop.”

Generally, a parent may be charged with child abuse or endangerment if his acts or omissions caused or created a risk of harm to his child. Under Illinois case law, as an example, a parent has an affirmative duty to protect his child from the threat posed by one who is abusive. Therefore, not only a parent who aided, abetted, or assisted his spouse (or another) in committing fatal child abuse may be held accountable and charged with first degree murder, but also the parent who knowingly remained idle – who chose not to say or doing anything at all – before during or after the infliction of the injuries that proved to be fatal.18 A statement made by a parent as to the harm he witnessed someone else do to his child would therefore constitute an admission of guilt by proving the requite mental state.

Incidentally, it is never the function of paramedics to advise a person of his constitutional rights. Miranda warnings are to be issued by law enforcement prior to questioning an in-custody person; when that person has become the focus of a police investigation. Miranda warnings are rarely issued on the street and contrary to every cop show on TV, are not automatically activated when an individual has been handcuffed.

Experienced prosecutors relish the opportunity to introduce false exculpatory statements into evidence. Simply put, false exculpatory statements are poor lies, pathetic excuses and lame deflections that some perpetrators can’t help but offer up. Some examples of the false exculpatory statements that the paramedic may hear (while seeing something completely different) are as follows:

“She fell into the bathtub…” (An infant, full-thickness burns, no splash marks, uniform burn line, buttocks/soles of feet intact.)

“It was an accident…” (The victim sustained multiple gunshot wounds.)

“This is the first time I ever hit him.” (A secondary assessment reveals numerous pattern bruises in various stages of healing.)

“I don’t remember anything… What you ask me, I don’t remember!” (Paramedics called (by victim) to the home. Victim bleeding out. Spouse standing over victim holding a bloody Providence oyster knife.)

“He fell down the stairs… ” (Victim’s face displays all three types of LeFort fractures, along with circumferential neck bruises.)

“My old man talks crazy all the time…” (Elderly unkempt patient who accuses dressy adult son (with an active felony narcotics case warrant) of stealing money and selling his belongings.)

“I had one beer…” (3 a.m., car vs. tree motor vehicle accident. Driver displays hypoglycemia symptoms, blood sugar level normal.)

“The police beat me up, that’s why I confessed.” (Arrestee, upon learning that he is being transported to the courthouse for a bond hearing demands medical attention. He complains of wrist pain and a primary assessment shows slight posterior wrist abrasions; no deformity or swelling. He refuses any prehospital treatment, but demands to be transported to the hospital.)

“I checked on him twenty minutes ago and he was just fine.” (Nursing home call…Patient declared a DOA by medical control, after crew reports obvious rigor mortis accompanied by livor mortis.)

“I’m not saying anything without a lawyer…” (Unresponsive toddler call. Babysitter’s reply to paramedic’s SAMPLE questions.)

Unlike admissions made to police investigators (confessions), false exculpatory statements rarely give rise to claims of coercion, threats, prolonged detention, deals or promises. The defense will either claim that they never made or were inaccurately/incompletely recorded or downplay them or just ignore them  altogether. From the prosecution’s perspective, false exculpatory statements are powerful evidence that bind the accused to their alleged crimes. The paramedic may be called to the stand not only as a lay witness to the making of a false exculpatory statement, but also as an expert witness, in order render an opinion as to whether its claims are consistent with/supported by the patient assessment and/or scene size-up. 

With the paramedic’s lay witness testimony and expert opinion, the prosecution can prove what happened, what did not happen; that the defendant attempted to lie about what he had done, because he knew that he had committed a crime.

Testifying in Open Court

Paramedics (and firefighters) are respected, well-liked and trusted, which is why prosecutors are eager to call them to as their witnesses and present them to the judge or jury for as many purposes as they are able.

Whenever appearing in court as a witness, the paramedic should be prepared to wear his dress uniform, though should ask the attorney who will be examining him how he should dress. After all, some ambulance services do not issue dress uniforms. A good rule of thumb is to dress professionally and conservatively, as if appearing for a formal job interview or if more comfortable, a crisp and clean duty uniform. As an important side note, the author strongly cautions any paramedic who receives a moving violation to never wear a dress or duty uniform to court, unless he wishes to be made an example to those in attendance not in uniform of how judges do not cut breaks to those who should know better than anyone that speeding is dangerous.   

While in the courtroom, the paramedic should display confidence and show reverence. There should be no slouching, finger-pointing, eye-rolling or fidgeting. It is inappropriate to argue or become hostile with an attorney. Criticizing a defense attorney or commenting on his client’s guilt will result in stern admonishment from the court.

If the testifying paramedic does not understand a question put to him, he should say so. When he cannot earnestly answer a “yes or no” question with a “yes or no,” he should say so. When a paramedic is asked if something is “possible” even though it may be improbable or highly unlikely, he should simply answer: “Yes. It’s possible.”

Keep in mind that after cross-examination, the prosecution will be given the opportunity for re­ direct examination (also referred to as rehabilitation), during which any testimony elicited during cross­ examination may be explained, qualified and placed in a proper context.19 For example:

Prosecutor: You were asked if XYZ was possible – and you answered “Yes.” Can you explain why you answered ‘Yes’?”

Witness: I answered yes because anything is possible.

Prosecutor: Fair enough. But, in your expert opinion, how likely is it that XYZ occurred?      

Witness: It is very unlikely that XYZ occurred.

The paramedic should refrain from offering information or adding things or embellishing or digressing, and instead just answer the question put to him. Consider what the author tells his potential witnesses – including his own clients – when preparing them to testify: “If he asks you what time it is, don’t ask, “Right now?” If you are asked how you knew the correct time, don’t tell him about where you bought your wristwatch and how much you paid for it.”

If an objection is made to a question, be it during direct or cross-examination, do not say anything until the judge has ruled on it. If the objection is sustained, you may not answer the question. If the objection is overruled, the judge will instruct you to answer the question. The paramedic should always look to the judge for direction and guidance (and the witness should always address him as either “judge” or “hour honor”).

OPQRST

Upon receiving a subpoena and up to the moment when the judge says, “Thank you. You may be excused,” the paramedic/witness should refer to the author’s OPQRST:

O – OPPORTUNITY. Testifying provides a paramedic an important opportunity. A paramedic/witness plays an important part in the truth-seeking process, which is the cornerstone of our criminal justice system. However flawed, that the accused can call upon his fellow citizens to judge him is remarkable. Criminal justice is highlighted in the Bill of Rights in the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments. Therefore, it is the duty of every paramedic called to testify – or summoned to jury duty, for that matter – to do so with care and attention.

P – PREPARATION. The  paramedic should never let an attorney put him on the witness stand “cold,” meaning without any preparation. The paramedic must understand what questions will be asked during direct examination and, to best extent possible, anticipate what cross-examination questions that direct examination testimony will likely generate.

Q – Ask QUESTIONS. The paramedic should know his pieces to the jigsaw puzzle the prosecutor is about to construct and how they connect with all of the other pieces and spaces. The author encourages the paramedic to ask the prosecutor about all facets of the case during his trial preparation. Doing so will assist both of them by providing the latter with insight and perspective that he had not contemplated.

R – Read/Remember your REPORT. As discussed, impeachment by omission (i.e., not including everything in the summary) is acceptable; impeachment by prior inconsistent statement or “coming off of your paper” is unacceptable. Unless for good cause, such as having discovered an error, the paramedic’s trial testimony should not wildly deviate from or outright contradict the information contained in his run report. Errors demand a detailed explanation, at a minimum with answers the following questions:

1. When did you discover it?

2. How do you know that it is an error?

3. What should it read?

4. How do you know that there are no other errors?

S – Keep it SIMPLE. Jurors and Judges want to hear from the paramedic. Criminal court judges spend the bulk of their careers listening to direct and cross examination of non-experts, mostly police officers. Jurors, who have come from many walks of life, are eager to learn about the paramedic witness; what he saw, what he heard and what he did. The paramedic’s perspective of a litigated event is unique; often the pivotal one to reaching a verdict. If the paramedic is engaging, the trier of fact will be locked in. If the paramedic either over-complicates or over-simplifies the event, he can expect to be tuned out, and his time on the stand to be cut short. Like an inaccurate pitcher or unfunny stage comedian, poor performance will get him the hook.

T – Be TRUTHFUL. If the paramedic readily admits omissions, openly concedes errors and acknowledges mistakes, his credibility will prevail. If he conceals, deceives, embellishes, fudges or fakes, not only will he and his entire testimony be viewed as suspect, but such folly may fatally poison the prosecution’s case.

Conclusion

Being called as a witness in a criminal trial is no different than the paramedic’s obligation to the patient. Through the prehospital care he renders on the scene and through his trial testimony, the paramedic can enhance his calling by effectively contributing to the pursuit of justice. It is therefore only fitting that the paramedic embraces the challenge and opportunity that a criminal trial subpoena presents.

Paramedics and prosecutors share many common bonds. They deal professionally with violence, represent the interests of victims and face human tragedy head on. In many ways, they are cut from the same cloth; down-to-earth types, often resorting to gallows humor, and having the capacity for compassion toward those to they are called upon to serve. Paramedics and prosecutors are ordinary people who take great pride in doing a tough job. 

Hopefully, the areas discussed in this article will assist and enhance both paramedics and prosecutors when their common paths cross.

Author’s disclaimer: This article is intended to provide insights and general perspectives, not to provide binding legal advice as to any case or controversy, not to countermand any fire department’s/EMS service’s protocols or directives, and not to supersede its jurisdiction’s governing authorities, procedures and protocols or practices.

References

1. Edward J. Inwinkelried, Evidentiary Foundations, (Charlottesville: The Michie Company, 1980), p. 136. (Hereinafter cited as Foundations).

2. Foundations, p. 141.

3. Norman E. McSwain, Jr, MD, et al, The Basic EMT Comprehensive Prehospital Patient Care. (St. Louis: Mosby Lifeline, 1997), pp. 321-2.

4. Edward W. Cleary and Michael H. Graham, Handbook of Illinois Evidence, 3rd Edition. (Boston, Little, Brown and Company, 1979), pp. 338-341. (Hereinafter cited as Handbook).

5. Mick J. Sanders, Mosby’s Paramedic Textbook, (St. Louis: Mosby Lifeline 1994), pp. 835, 851. (Hereinafter cited as Mosby’s).

6. People of the State of Illinois v. Latasha Johnson, 95CR-31421 (Jury Trial – Circuit Court of Cook County, Criminal Division, Sixth Municipal District), April 7, 1997.

7. The M’Naghten Rule; see also Henry Campbel Black, M.A., Black’s Law Dictionary. 5th Edition (St. Paul: West Publishing Company 1983), p. 405. (Hereinafter cited as Black’s); see also Illinois Complied Statutes 720 ILCS 5/6-2) (from Ch. 38, par. 6-2)

8. Foundations, p. 146.

9. Mosby p. 850.

10. Foundations, p. 368.

11. Jack H. Friedenthal and Michael Singer, The Law of Evidence. (Mineola, NY: The Foundation Press, 1985), pp. 138-9. (Hereinafter cited as Law); Handbook, pp. 466-7.

12. Foundations, p. 192.

13. Black’s, p. 728.

14. Foundations, p. 188.

15. Law, p. 113.

16. PHTLS Basic and Advanced Prehospital Trauma Life Support, 4th edition. (St. Louis: Mosby, 1999), p. 28.

17. Federal Rules of Evidence, 801 and 802 (Reprinted in Law, p. 311).

18. People of the State of Illinois v. Elijah Stanciel, et al and Barbara Peters, 606 NE2d 1201, 153 Ill.2d 218 (Illinois Supreme Court 1992); but also see People v. Pollock, 780 NE 2d 669 (Illinois Supreme Court 2002) {From the opinion’s opening, Background, paragraph: “…a Kewanee ambulance manned by two emergency medical technicians (EMTs) arrived…in response to a 911 call that a three-year-old child was not breathing.”}

19. Black’s, p. 664.

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