Forensic nurse examiners who have conducted forensic examinations in that jurisdiction are called by the prosecution to testify because they have provided an important service that contributed to a particular body of evidence. They are more or less incorporated into the prosecution case. It is, however, extremely important to understand that they do not work for the prosecutor and must remain independently objective and not feel responsible to tell anything but the truth. Whether the individual functions as a sexual assault nurse examiner (SANE), a death investigator, or any type of forensic nurse, he or she may have collected and evaluated information that will contribute to a larger body of information.

The forensic nurse is an educator and interpreter of the type of work we do and its protocols, standards, and procedures. By the time of the trial, the district attorney has determined that the case has merit and viability because of evidence of one kind or another. The forensic nurse should have an opinion about whether findings from the forensic examination could be consistent with the history provided by the patient, remembering that the history is only the patient’s version of the events, as told to us, and be honest enough to acknowledge that the findings could be equally consistent with something else, such as consensual sexual contact, a nonspecific finding, or a medical condition. The SANE cannot substantiate force or determine consent versus nonconsent, so the nurse must maintain total neutrality. The forensic nurse can never cross over into the providence of the jury by stating that a sexual assault occurred. Only the jury can make that determination. The forensic nurse examiner has been given a particular history, regarding an event, but has no idea whether that history is accurate. This is why the forensic nurse’s objectivity is paramount. The nurse should be unbiased and truthful to establish her or his credibility.

The SANE’s testimony will not usually be the single hinge on which the verdict decision rests. It will be a supporting part, in a large body of evidence, but not necessarily the only consideration. Each witness is a cog in the wheel. The role of the forensic nurse examiner is to tell the unbiased truth. The nurse was not present at the scene and did not witness the event firsthand; therefore, the intention of the nurse is to relay her or his findings in the documentation and photography, to ensure that each is a fair and accurate representation of the examination, and to reflect this in the testimony without editorializing. Although the forensic nurse does not want a guilty person to go free or a person who is not guilty to go to prison, the nurse should not even entertain the idea that she or he can be the judge or jury of any case. The nurse examiner should not be tempted have a stake in the case. To appear to be siding with one party or another will expose the nurse to be biased and taint the testimony, so the nurse should avoid disparaging comments on the witness stand about the defendant or the patient. The nurse may be competent at identifying findings and injuries, but the nurse cannot verify causation. The nurse may have opinions, but it is inappropriate for the forensic nurse examiner to declare that a sexual assault occurred, and the nurse could be disqualified for such a statement. Determining whether a sexual assault occurred is not the role of the testifying nurse. The forensic nurse should attempt to impress the court with professionalism, objectivity, and knowledgeable explanations of her or his exam findings. The nurse’s unbiased testimony, in combination with the other testimony offered in trial, will provide the clear information jurors need to reach a satisfactory decision. Testimony should be based in current literature and the training and experience of the examiner, because a peer, in the role of an opposing expert, may be challenging the nurse’s explanations.

A forensic nurse examiner may be called as a prosecution witness or a defense witness. However, most often the nurse will appear as part of the prosecution’s case if she or he has conducted the examination. As mentioned before, the SANE is “built in” to the prosecution’s case simply by the fact that she or he has conducted the forensic examination. That, however, does not mean that she or he must say only things that will benefit the prosecution. In essence, the forensic nurse examiner is testifying about the condition of the patient, the evidence that was collected, and the facts that the findings reveal. The opposition will often attempt to discredit the forensic nurse examiner and raise questions about the nurse’s credentials, making it appear that the nurse is biased for the prosecution. However, that is the job of the opposing side in our adversarial system, and the nurse should not take it personally. Despite a sound education and outstanding credentials, the opposing attorney may bring the credibility of forensic nurses into question because the nurse’s honest testimony will more than likely be damaging to one side or the other. It also could be beneficial to one or both sides. Some forensic nurse examiners/SANEs act as consultants for defense counsel. That shows definitive objectivity.

When the forensic nurse receives a subpoena, she or he should note certain details right away, such as the date of the trial. In many jurisdictions, the subpoena comes shortly before the trial or preliminary hearing. Subpoenas usually list the name of the defendant and not the name of the victim. If the work was primarily with the victim, the nurse may not know the name of the defendant. Look for the contact number of the witness coordinator’s officer and make contact promptly. The witness coordinator may be the source of communication regarding the trial appearance and continuations. The nurse should state that she or he is the forensic nurse who conducted the evidentiary examination and has received a subpoena. The nurse will be asked to provide the case number, which may be found in a prominent site on the subpoena along with the name of the prosecuting attorney. The witness coordinator will confirm who the prosecutor will be and verify the identity of the victim. Ordinarily the coordinator will establish the nurse’s availability for testifying within a certain time span and will ask whether the nurse will be on vacation or unavailable at certain times. The nurse should confirm the name and number of the prosecutor and make contact as soon as the chart and other materials from the case have been located. The prosecutor may only have the forensic exam report and might not be aware that the file contains consents, nurse’s notes, medication records, photographs, and other documents related to the patient. Make sure the prosecutor has a copy of all documents related to the case.

Generally a subpoena includes two checkboxes that refer to the courtroom appearance: (1) be in court, and (2) be on call. The nurse should request to be placed, “on call.” If, “be in court,” has been checked, the nurse should contact the DA and the witness coordinator and request be switched to “on call.” This way, the witness will not have to be in court until needed and will avoid hours of waiting in the hall. The prosecutor will provide an estimated time for the nurse’s appearance.

A subpoena may be issued for the preliminary hearing. Most of the time, the forensic nurse will not be expected to appear at a preliminary hearing; however, there are exceptions, so make sure you communicate with the DA. The preliminary hearing determines whether there was probable cause for the suspect’s arrest and if there is enough evidence for an indictment. There is no jury at this time. If an indictment is filed, then the matter goes to trial.

A pretrial conference may be held between the preliminary hearing and the trial. A subpoena may be received for that, too. A pretrial conference is used to review evidentiary issues before trial, but again, the forensic nurse may not be required to be present.

When the forensic nurse receives a subpoena for the actual trial, he or she should contact the prosecutor and the witness coordinator, keeping in mind that trials may be continued and continued and continued. Maintain ongoing and consistent communication so there is no ambiguity about what is happening. It is possible that, somewhere along the line, the defendant will plead and there will be no trial at all. When this occurs, the information should be filed with nurse’s other case records for subsequent reference.

Again, the on-call trial date status should be verified. The first day of the trial as listed on the subpoena will not necessarily be for testimony but the beginning of procedures. The first steps will be for motions and for jury selection. This may take a day or more, so the nurse’s testimony will most likely not be on that day but days later. Once the jury has been selected, the DA will have a better idea when the nurse will appear.

There is always a chance that the presence of the forensic nurse examiner may not be required. Photos and documentation will have been entered into evidence, and perhaps no further explanations or a court appearance will be necessary.

Potential witnesses should bring their subpoena to court on the prescribed day of appearance (it may even grant parking privileges in a restricted area or at no cost). Even after the trial is over, the witness should maintain the subpoena and file it with the chart. It is a useful document for recording the outcome of the case, including the details of sentencing.

Different types of witnesses may testify in a trial. The two types that most often involve the nurse are fact witness and expert witness. In either case, it is most important for the nurse to be nonbiased, objective, and scientific. The forensic nurse must be a witness, not an advocate. The role of a fact witness, as defined by Webster’s Revised Unabridged Dictionary (1998), is “To see or know by personal presence; to have direct cognizance of.” These witnesses have firsthand knowledge of a particular event. That role may apply to nurses who are testifying regarding the observations and direct contact with the patient. A fact witness may testify to things that she or he heard, seen, touched, tasted, or smelled and may give an opinion related to those things perceived by his or her senses.