MESA COUNTY DISTRICT ATTORNEY

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MESA COUNTY DISTRICT ATTORNEYS OFFICE
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MISSION

• To see that the guilty are convicted and the
  innocent protected. To prosecute violent
  criminals relentlessly in order to ensure that
  all citizens are protected from violence. To
  ensure that justice is served equally for all
  citizens.

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Why have this course?

• Cohesive working relationship.
• Prosecutors rely upon medical opinions for
  charging decisions.
• Facilitate smooth working relationships.
• Our job is not done until conviction- arrest and
  clearing a case does not cut it.
• The better and more professional reports are-
  results in our jobs being done more efficiently,
  effectively and professionally.

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Medical ReportsRelevancy to Criminal Prosecution

• Statements made by victims
• Injuries suffered by victim
• Diagnosis
• Serious Bodily Injury determinations
• Element of crime that must be proven- often
  C.O.V.
• Statements made by Defendant
• Injuries suffered by Defendant
• Intoxication of alcohol and/or drugs
• Observations
• Statements made by children, observations,
  findings

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How are medical reports used by law enforcement?

• Arrest decisions
• Assess potential defenses
• Make determinations of follow-up investigation

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How are medical reports used by Prosecutors?

• Charging Decision
• Anticipate defenses
• Identify potential evidentiary problems
• Evaluate what evidence is admissible
• Assess what can and cannot be proven BRD
• Get a feel for the case
• Phlebotomists- blood draw

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How are medical reports used by defense attorneys?

• To plan, evaluate, and create defense
• To investigate further
• To fill in holes, gaps
• Establish lack of follow-up
• Establish lack of investigation
• Lack of documented intoxication or odor of alcohol

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How are your reports used by a jury?

• Juries generally do not receive a copy of your
  report.
• Defense counsel will question you about specific
  points in your report in front of the jury-
  little context will be given, so jury will become
  confused. AVOID THIS.
• Expectations of jury- expect professional,
  objective and thorough evaluations and treatment.
  

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Professional Courtesies

• Subpoenas- service of process
• Accessibility
• Preparation for Court
• Interviews
• Telephone Contact
• What is the best way to communicate?
• Scheduling for Court

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Subpoenas from prosecution

• Process of subpoena
• Substance of subpoena
• Waiver of service- return acknowledgement to DA
• Contact with prosecutor
• Scheduling

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Subpoenas from Defense
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Preparing for Court

• Talk to Prosecutor
• Review reports/evidence prior to meeting
• Go over testimony in advance
• Review any anticipated exhibits that you may need
  to identify/admit- understand the standard
• Determine any demonstrative evidence
• Talk about what to wear

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Pretrial Interviews

• Prosecution
• Defense

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Expectations

• Contact with prosecutor
• Familiarity and review of reports
• Scheduling for interviews/court
• Trial Testimony
• Exhibits in court

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Testifying

• Be prepared
• Jury knows nothing
• Review reports
• Tell the truth
• Keep your voice up
• Listen to the entire question before answering
• Answer out loud
• Correct mistakes
• Know prior to court what is or is not admissible
• Do not fight with defense counsel
• Dont just agree with defense counsel

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Testifying

• Be fair
• Be objective
• Dont get personal

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Expert Witness andOpinion Testimony
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Medical Opinions/Diagnosis

• "Bodily injury" means physical pain, illness, or
  any impairment of physical or mental condition.
• "Serious bodily injury" means bodily injury
  which, either at the time of the actual injury or
  at a later time, involves a substantial risk of
  death, a substantial risk of serious permanent
  disfigurement, a substantial risk of protracted
  loss or impairment of the function of any part or
  organ of the body, or breaks, fractures, or burns
  of the second or third degree.

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Opinions

• Experts have qualifications and opinions.
• For each opinion, there must be a bases for such
  opinion- education, training and experience.
• Defense will cross examine you on opinion and
  bases of the opinion

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MANDATORY REPORTINGDOMESTIC VIOLENCE
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Domestic Violence- Mandatory ReportingC.R.S.
12-36-135

• It shall be the duty of every licensee who
  attends or treats a bullet wound, a gunshot
  wound, a powder burn, or any other injury arising
  from the discharge of a firearm, or any injury
  caused by a knife, an ice pick, or any other
  sharp or pointed instrument that the licensee
  believes to have been intentionally inflicted
  upon a person, or any other injury the licensee
  has reason to believe involves a criminal act,
  including injuries resulting from domestic
  violence

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Failure to Report Domestic ViolenceC.R.S.
12-36-135

• Any licensee who fails to make a report as
  required by this section commits a class 2 petty
  offense and upon conviction thereof, shall be
  punished by a fine of not more than three hundred
  dollars, or by imprisonment in the county jail
  for not more than ninety days, or by both such
  fine and imprisonment.

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Reporting Domestic ViolenceLiabilityC.R.S.
12-36-135(2)

• Any licensee who, in good faith, makes a report
  pursuant to subsection (1) shall have immunity
  from any liability, civil or criminal, that might
  otherwise be incurred or imposed with respect to
  the making of such report, and shall have the
  same immunity with respect to participation in
  any judicial proceeding resulting from such
  report.

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Physician/Patient RelationshipDomestic
ViolenceC.R.S. 12-36-135(3)

• Any licensee who makes a report pursuant to
  subsection (1) of this section shall not be
  subject to the physician-patient relationship
  described in C.R.S. 13-90-107(1)(d), as to the
  medical examination and diagnosis. Such licensee
  make be examined as a witness, but not as to any
  statements made by the patient that are the
  subject matter of C.R.S. 13-90-107(1)(d).

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Domestic Violence (for purposes of mandatory
reporting C.R.S. 12-36-135)

• Domestic violence means an act of violence upon
  a person with whom the actor is or has been
  involved in an intimate relationship.
• Domestic violence also includes any other crime
  against a person or any municipal ordinance
  violation against a person or against property,
  when used as a method of coercion, control,
  punishment, intimidation, or revenge directed
  against a person with whom the actor is or has
  been involved in an intimate relationship.

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Intimate RelationshipC.R.S. 12-36-135

• Intimate relationship means a relationship
  between spouses, former spouses, past or present
  unmarried couples, or persons who are both the
  parents of the same child regardless of whether
  the persons have been married or have lived
  together at any time.

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MANDATORY REPORTINGCHILD ABUSECHILD NEGLECT
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Reporting of Child Abuse/Neglect

• Reasonable cause to know or suspect that a child
  has been subjected to abuse or neglect
• OR
• Observed the child being subjected to
  circumstances or conditions which would
  reasonably result in abuse or neglect
• IMMEDIATE REPORTING

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Mandatory Reporting Child Abuse/NeglectC.R.S.
19-3-304

• Except as otherwise provided, any person
  specified in subsection (2) of this section who
  has reasonable cause to know or suspect that
  child has been subjected to abuse or neglect or
  who has observed the child being subjected to
  circumstances or conditions which would
  reasonably result in abuse or neglect shall
  immediately upon receiving such information
  report or cause a report to be made of such fact
  to the county department or local law enforcement
  agency.

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Failure to ReportChild Abuse/NeglectC.R.S.
19-3-204(4)

• Any person who willfully violates the provisions
  of subsection (1) of this section
• commits a Class 3 Misdemeanor and shall be
  punished as provided in C.R.S. 18-1.3-501
• Shall be liable for damages proximately caused
  thereby

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Child Abuse/NeglectPersons required to report
C.R.S. 19-3-304(2)

• Physician or surgeon, including a physician in
  training
• R.N. or L.P.N.
• Hospital personnel engaged in the admission, care
  or treatment of patients
• Mental health professional
• Psychologist
• Physical therapist
• Pharmacist

• Child health associate
• Medical examiner or coroner
• Dentist
• Osteopath
• Optometrist
• Chiropractor
• Chiropodist or podiatrist
• Social worker
• Others see hand-out

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Child Abuse/Neglect C.R.S. 19-1-103

• (1)(a) "Abuse" or "child abuse or neglect", as
  used in part 3 of article 3 of this title, means
  an act or omission in one of the following
  categories that threatens the health or welfare
  of a child(I) Any case in which a child
  exhibits evidence of skin bruising, bleeding,
  malnutrition, failure to thrive, burns, fracture
  of any bone, subdural hematoma, soft tissue
  swelling, or death and either Such condition or
  death is not justifiably explained the history
  given concerning such condition is at variance
  with the degree or type of such condition or
  death or the circumstances indicate that such
  condition may not be the product of an accidental
  occurrence(II) Any case in which a child is
  subjected to unlawful sexual behavior as defined
  in section 16-22-102(9), C.R.S.(see next slide)
• (III) Any case in which a child is a child in
  need of services because the child's parents,
  legal guardian, or custodian fails to take the
  same actions to provide adequate food, clothing,
  shelter, medical care, or supervision that a
  prudent parent would take. The requirements of
  this subparagraph (III) shall be subject to the
  provisions of section 19-3-103.

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Child Abuse/Neglect C.R.S. 19-1-103

• (IV) Any case in which a child is subjected to
  emotional abuse. As used in this subparagraph
  (IV), "emotional abuse" means an identifiable and
  substantial impairment of the child's
  intellectual or psychological functioning or
  development or a substantial risk of impairment
  of the child's intellectual or psychological
  functioning or development.(V) Any act or
  omission described in section 19-3-102(1)(a),
  (1)(b), or (1)(c) (Neglected or dependent child
  following slide)
• (VI) Any case in which, in the presence of a
  child, or on the premises where a child is found,
  or where a child resides, a controlled substance,
  as defined in section 18-18-102(5), C.R.S., is
  manufactured or attempted to be
  manufactured(VII) Any case in which a child
  tests positive at birth for either a schedule-I
  controlled substance, as defined in section
  18-18-203, C.R.S., or a schedule-II controlled
  substance, as defined in section 18-18-204,
  C.R.S., unless the child tests positive for a
  schedule-II controlled substance as a result of
  the mother's lawful intake of such substance as
  prescribed.

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Unlawful Sexual Behavior

• See hand-out

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Neglected or dependent child

• See handout

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Reporting- At Risk AdultC.R.S. 26-3.1-102

• An immediate oral report of abuse should be made
  or caused to be made within twenty-four hours to
  the county department or during non-business
  hours to a local law enforcement agency
  responsible for investigating violations of state
  criminal laws protecting at-risk adults by any
  person specified in paragraph (b) of this
  subsection (1) who has observed the mistreatment
  or self-neglect of an at-risk adult or who has
  reasonable cause to believe that an at-risk adult
  has been mistreated or is self-neglected and is
  at imminent risk of mistreatment or self-neglect.

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Lack of reporting

• Immediate reporting is required
• Willful failure report is a crime
• Failure to report can be prosecuted
• The DAs office is running across more cases
  involving a lack of reporting

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Reporting

• If physicians come across information from person
  other than patient- report!
• Information may come from parents, caretaker,
  neighbor or other source.