Public Health Law Map - Beta 5 - Medical and Public Health Law Site

the jury may be out of the room for more than half of the trial.
2. Invoking the “Rule”
The procedure known as “invoking the rule”— a rule of civil procedure that allows a
party to request that a witness be prevented from hearing the testimony of other
witnesses in the trial—can be distressing to witnesses. The intent is to prevent
witnesses from refreshing their memory or shaping their testimony to fit other
testimony. The rule is particularly frustrating to health care practitioners acting as
expert witnesses. They will be asked to testify about the validity of other testimony
that they are prevented from hearing. Since the attorneys are free to paraphrase the
words of other witnesses, perhaps putting a different cast on them, the expert may be
in the position of condemning another physician for something the physician did not
say or do.
3. Cross-Examination
Cross-examination is the process of elucidating the truth through the examination of
the contested information by adversary attorneys. The best example of cross-
examination is the examination of witnesses. Each attorney questions the witness in
turn, and each is allowed to requestion the witness on matters brought out by
subsequent questioners. This may take a few minutes or several weeks, depending on
the complexity of the testimony. In theory, this relentless questioning eventually
flushes out the truth. This theory, however, is predicated on the assumption that the
adversaries are sufficiently well versed in the technicalities of the witness’s
testimony to recognize the truth when it makes an appearance. In practice, cross-
examination of witnesses frequently illuminates little more than the relative acting
skills of the examining attorneys and the witness.
4. The Hearsay Rule
Few other concepts in law arise so often and yet are so inadequately understood as
the concept of hearsay. The hearsay rule is important in the medical setting because
the admissibility of the medical record into the court as evidence is governed by the
hearsay rule. A basic understanding of this rule is necessary to an understanding of
the legal significance of medical recordkeeping protocols. The hearsay rule holds
that one person cannot testify about the truth of what another person said. Witnesses
can testify only as to what they heard the person in question say. For example, a
nurse may testify that she heard Dr. Jones say, “I must have been drunk to have
nicked that patient’s intestine!” The jury could accept this as evidence of what Dr.
Jones said but not as evidence that she was drunk or had nicked the intestine. These
facts would need to be proved through the testimony of Dr. Jones herself or the
testimony of appropriate expert witnesses.
The hearsay rule arises from the need for counsel to cross-examine every witness and
document to determine its truthfulness. If a statement made out of court is
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