The Difference Between Serving as a Fact Witness vs. Expert Witness

Articles | Forensic Nursing | Master of Science in Nursing

Evidence collected by forensic nurses can be instrumental in building a case against a defendant.

Forensic nurses are often subpoenaed to testify in court cases, especially where physical abuse has occurred. Such was the case for Jenifer Markowitz, who recently testified in a 2018 court-martial against 14-year Army veteran Jay Guerrero. Guerrero was accused of strangling his wife, Daisy, during an argument. Mrs. Guerrero blacked out and lost bladder control during the incident.

Markowitz offered expert testimony that loss of bladder control during strangulation can signify that the brain is ceasing to function properly and that death could be imminent, according to the Stars and Stripes article, “Former Army Garrison Stuttgart Provost Marshal Sent to Prison for Choking Wife.”

Daisy Guerrero survived, and her husband was found guilty, resulting in prison time and forfeiture of pay and benefits consummate with a dishonorable discharge from the armed services.

Becoming a forensic nurse is not a decision to be taken lightly. Nurses regularly tend to see the worst side of humanity. Both compassion and impartiality are crucial skills for forensic nurses. They need to simultaneously make a victim of abuse or assault feel safe and comfortable during an exam and also maintain an objective, unbiased attitude when called to testify in court.

Forensic Nurses and Court Testimony

When abuse, assault, rape or other violent crime is committed, a court case almost inevitably follows. A forensic nurse’s duty is to collect evidence of injury from a victim’s body, retrieve any potential DNA evidence and fully document all injuries according to a strict procedure. Once collected and documented, that evidence can be instrumental in building a case against a perpetrator.

When prosecutors build a case against a defendant, the forensic nurse who collected the initial evidence may be subpoenaed to appear in court and offer testimony in a juvenile, family, criminal, civil or even probate courtroom, according to nurse Janet L. Murphy in her paper, “When Clinicians Are Summoned to Testify in Court: Orientation to the Process and Suggestions on Preparation.”

In some cases, writes Murphy, depositions may take place outside the courtroom in a structured environment and be used in court later. Testimony in a deposition is still sworn testimony.

Nurses likely to be subpoenaed should plan to be both well prepared and confident.

“Reducing fear and anxiety in the provision of testimony can be accomplished,” Karen S. Neill writes in her Journal of Forensic Nursing article, “Serving as a Witness in the Court: Trials, Testimony, and Truth.”

“Being well prepared is a cornerstone to being able to testify with confidence. Knowing the current research evidence base is critical to preparation. Learning how to read and understand research, translate evidence to practice and communicate findings requires diligence and commitment to excellence in the forensic nursing role.”

Testifying as Either a Fact Witness or Expert Witness

When forensic nurses are is subpoenaed, the question becomes whether they will testify as fact witnesses or expert witnesses.

A fact witness is called upon only to verify facts pertinent to the case. Expert witnesses, on the other hand, may be asked to tell the court what their expertise leads them to believe in the case at hand.

In its blog post, “Difference Between an Expert Witness and a Regular Witness,” Trials.Laws.com describes a factual witness as “an individual who is knowledgeable towards the facts of the case through a direct participation or observation of the intricacies involved.”

In contrast, expert witnesses are authorized to give their opinion about the case while testifying. They may also assist the court to understand the complex technical knowledge that lies at the heart of their testimony, according to the Psychological Center for Expert Evaluations Inc. blog post “Expert Witness vs. Fact Witness.”

“Doctors and other clinical practitioners, such as forensic psychologists, may find that their testimony sometimes straddles the gray area of fact and expert witness,” according to the article. “For example, you may be questioned on what you did and what the subject did, like a fact witness, and then asked to state an opinion like an expert witness. For this reason, be sure to consult with the counsel in the case to review your position in the case before you testify.”

Finally, a forensic nurse may be called upon to serve as an expert consultant for the court, for either the defense or the prosecution. As a consultant, according to Consolidated Consultants’ blog post, “The Sexual Assault Nurse Examiner (SANE) as Consultant,” a nurse can suggest other experts who might help the case. For example, if a strand of hair is collected from the clothing of a rape victim, the SANE consultant can suggest that the prosecution subpoena the lab analyst who sequenced the hair’s DNA.

Testifying as a forensic nurse is an intensive process. Impartiality and objectivity are important forensic nurse expert witness qualifications. Forensic nurses are increasingly being called upon to testify specifically because of their reputation for being impartial on the stand.

Duquesne University Master of Science in Nursing Program

Students enrolled in Duquesne’s online Forensic Nursing Master of Science in Nursing (MSN) program have an opportunity to learn the knowledge and skills necessary to serve as either a factual or expert witness in court cases involving their patients. Duquesne also offers online Family Nurse Practitioner and Nursing Educator MSN programs.

Graduates may go to work directly in their field as forensic nurses, family nurse practitioners, or nurse educators, or they may choose to pursue a post-master’s certificate (PMC). For more information, contact Duquesne University today.

 

Sources:

Former Soldier Sent to Prison for Choking Wife – Stars and Stripes

When Clinicians Are Summoned to Testify in Court – Sage Journals

Serving as a Witness in the Court – NursingCenter.com

Difference Between Expert and Regular Witness – Trial.Laws.com

Expert Witness vs. Fact Witness – Psychological Center for Expert Evaluations, Inc.

SANE as Defense Consultant – Consolidated Consultants