Be clear and honest: First responder tenets for serving as a trial witness
First responders must be clear about their observations and follow key documentation guidelines to be considered as a credible witness
First responders may be called as witnesses in criminal and civil trials, but few are truly prepared to be a star witness on a high-profile case, such as the Derek Chauvin murder trial.
Though such high-profile cases are rare, cases of more local importance are not so infrequent. After all, first responders are frequently first on scene, and it’s important they understand that their actions and observations can have a significant impact on those involved in the incident if legal issues emerge.
If called as a witness, the first responder’s memories will paint the picture of the scene for the judge or jury. It is critical that their memory be clear, accurate and complete. They cannot possibly know what aspects of the scene or statements of an individual will be important years later. Therefore, responders must learn to document not only facts that appear critical but also those that may seem unimportant at the time.
Here we’ll explore a checklist for first responders who respond to incidents that may end up in criminal or civil court.
Lawsuits and criminal cases are all about reconstructing what was lost – the truth. The observations of first responders are critical to reconstructing accident scenes and crime scenes. Unfortunately, first responders do not always appreciate their roles in being first on scene to an incident that is about to become overcrowded with other responders, media and bystanders.
While first responders are often focused on the patient or the cause of the emergency, such as a fire, there is always more happening on scene. And we must remember that the people involved in the incident are not focused on the environment around them. They are concerned with their loved one or their own personal issues. They are not observing critical pieces of information that could be relevant in a later trial.
Most first responders are not used to being cross-examined on their reports or questioned on their written statements. Many EMS providers often feel that their reports are useless portions of medical records, and many firefighters often assume that no one will read most of the reports. However, the proper documentation of your observations can mean the difference between freedom and a life in prison for another individual or between an injured party being compensated for injuries and losing a civil suit.
Some first responders do not appreciate their roles because they assume that the police will properly document the scene. Unfortunately, police often fail to write complete reports, interview witnesses or document the scene. Police are notorious for their poor documentation of events that did not seem important to them.
Therefore, never underestimate your role and the importance you can play in assisting others to obtain justice or avoid an unjust result. Do not be lazy and fail to write proper reports. The time you spend could mean so much to someone else later one. Just as importantly, it could help you to avoid looking like the fool if you are deposed or placed on the witness stand.
First responders are not limited to writing only medical reports or completing fire reports. They should become accustomed to completing incident reports in order to document non-medical or non-fire-related matters. Do not let anyone tell you that you are prohibited from writing down what you saw, heard or even smelled. You are a professional and should be prepared to be a professional observer.
Your primary goals for proper documentation can be summarized as follows: Be accurate, be complete and be clear. While writing such reports are an art, flowery language is not necessary. Instead, short and unambiguous statements are best used to document any fact or observation.
Additional suggestions for the documentation:
- Start your documentation as soon as possible. Your memory will fail you even days later, despite what you think. Most attorneys will tell you that the memories of witnesses lose reliability when recalled even days later.
- Note the date you wrote every report and every update to the report.
- Document facts and observations only. Your role as a witness is not to provide an opinion. Your opinion will immediately put you at odds with the facts and bring in to question everything that you claim to have witnessed.
- Write chronologically. Start at the beginning of your involvement, from the dispatch to radio traffic to arriving on scene and until the end of your interactions with the incident. Walk yourself through the timeline. The more complete your reports, the more credible your reports. If your report becomes unclear as to the order of events your report could be harmful to the truth.
- Document the time markers you have access to report, even beyond the dispatch, arrival and departure time. Never estimate a time, but if you must, acknowledge in writing that the time is estimated.
- Document missing information. If you think there is a fact that you should have observed or recalled, but you did or cannot, then document the absence of such observation or recollection.
- Never provide an opinion or guess.
- Never exaggerate or be emotional in your documentation. For example, using a phrase that “I was shocked to observe” or “I could not believe that” are inappropriate and inflammatory.
- Never lie.
- Write down every detail of the event, regardless of whether you think it is important or significant. There is nothing insignificant in a criminal or civil matter.
- Never withhold something of importance, even if you think it will result in an undesired outcome. If you are discovered to have covered up a fact or intentionally withheld the information, you could potentially be charged with obstruction of justice or a similar crime.
- Avoid double negatives. For example: “The officer didn’t not restrain the individual.” Just write: “The officer restrained the individual.”
- Never black anything out on a report. Cross out a mistake if it is written in hand.
- Use quotation marks where appropriate. Specifically, if you heard something and it is an exact quote that you recall without question, place the matter in quotes.
- Do not delete a completed report. Do not edit a completed report. Instead, draft a supplemental report and note any corrections to the underlying report in the supplemental report. Note: If you add facts that occurred in a certain sequence, clearly state when that fact occurred and where it should be added in the underlying report.
- Note every detail of the scene that was changed from the moment you arrived.
- If you made comments to the police or other individuals, document what you told them.
- If you interviewed anyone to obtain facts, identify these persons in your report.
- Include photos. If you took pictures, attach them to a report. State how many pictures you took and where they were stored. Never delete any picture you took of a scene. Attach it to any report you write or make sure it is properly filed and stored.
- Document abnormalities. If you have time to observe the crowd on certain events, consider documenting anything atypical. For example, arson investigators would be very interested in knowing about excited witnesses or those yelling at firefighters not to extinguish the fire.
In the process of documentation, remember that your words matter. If you write words such as “might have” or “could have,” that means you are unsure. If you state that you “believe” something, then perhaps your belief is incorrect.
That being said, be honest. If you “think” you heard something said, then state as much – as opposed to stating it as a fact. For example, if you heard someone state, “I killed him,” document it as such. If you state that he said, “something like he killed him,” that means you are uncertain, which is OK, if you are, in fact, uncertain. You must be honest. Your memory could be called into question years later. You need to be able to state that if you documented using “absolute words,” then you were absolutely positive of what you wrote down when you wrote it.
Beyond the incident report
Other rules exist outside of the incident report itself. These are as follows:
- Public comments: Stay off social media. Do not speak about the matter with friends or the press. If the scene seems like it is going to be a news story, stay out of the news. What you say will come back to you. Everything you write, say, text and email will eventually be revealed.
- HIPAA: HIPAA and state privacy laws also may require confidentiality. Generally speaking, what you learn from a patient’s condition or statements about a patient from someone else is likely offered a qualified protection. Unless the patient specifically provides permission to provide details, do not offer them without a judge-signed subpoena. In some states, a subpoena issued by an attorney and even a district attorney (criminal prosecutor) is not sufficient to waive the patient’s right to confidentiality. Make sure that you seek an attorney’s opinion as to your ability to provide testimony before appearing to provide testimony.
- Alignment: Although there will only be one medical report, there can be numerous witnesses to an incident. Therefore, if two providers are on scene, both should document what they saw. With any luck, your facts will align. Nothing is worse than having your partner called to rebut the facts you provided under oath.
- Review: When your report is finished, present it to a superior officer or even an attorney. Another viewpoint is always helpful. If something needs to be changed, added or clarified, do it afterward.
Fulfill your role
Becoming a keen observer and a seasoned report-writer are critical skills of a first responder. While you may underestimate the importance of this role, attorneys and the public will not. You can serve those you protect in an additional way by fulfilling this most important role and becoming an expert at incident documentation.