As a litigator, there may be times in your practice when a witness is not available or unwilling to come to court to testify. Typically you would take the witness’ deposition and attempt to introduce it pursuant to Rule 804 of the Tennessee Rules of Evidence, as the declarant is unavailable. However, there may be times that you are unable to take the deposition of a witness due to time or other constraints. One solution may be to have the witness testify telephonically. The question is: will the courts allow a witness to testify by telephone?
Pursuant to Rule 43.01 of the Tennessee Rules of Civil Procedure, “In all actions at law or equity, the testimony of witnesses shall be taken pursuant to the Tennessee Rules of Evidence. Also, for good cause shown in compelling circumstances and with appropriate safeguards a court may permit presentation of testimony in open court by contemporaneous audiovisual transmission from a different location.” In other words, Tennessee law permits testimony by telephone in only a handful of narrowly drawn circumstances. There are specific statutes allowing telephonic testimony in child support cases. See Tenn. Code Ann. 24-7-121(d) and Tenn. Code Ann. 36-5-2316(f). In the absence of some specific statutory authority allowing the testimony of witnesses by telephone, you must show three things to the court for them to consider allowing testimony outside of the courtroom, which include (1) good cause; (2) compelling circumstances; and (3) appropriate safeguards. Please note that the court can only permit presentation of testimony by contemporaneous “audio-visual transmission from a different location.” This rule does not specifically contemplate nor allow telephonic testimony absent a visual component.
The Tennessee Supreme Court has addressed the reasons why live, in-person testimony is more desirable than remote testimony. Kelly v. Kelly, 445 SW3d 685 (2014) explains this preference: “(1) It assists the trier of fact in evaluating the witness’ credibility by allowing his or her demeanor to be observed firsthand; (2) It helps establish the identity of the witness; (3) It impresses upon the witness the seriousness of the occasion; (4) It assures that the witness is not being coerced during testimony; (5) It assures that the witness is not referring to documents improperly; and (6) In cases where required, it provides for the right of confrontation of witnesses.”
In the Kelly case, neither party objected to the fact that the witness was testifying by telephone, therefore the same was allowed. The Supreme Court went on to address the scope of review that appellate courts should employ when reviewing testimony provided by telephone. The court of appeals had earlier decided that it could review the witness’s credibility de novo, as if the witness had testified by deposition because the trial court had lacked the ability to view the witness while testifying, therefore reducing the trial court’s ability to weigh the witness’ credibility. The Supreme Court disagreed with the court of appeals and found that appellate courts should treat telephonic testimony the same as live testimony and that the trial court should be given the appropriate deference in the weight that it ascribes to the witness testimony. In the recent case of Yocum v. Yocum, 2015 WL 9028131 (Tenn. Ct. App. 2015), there was no agreement for the witness to testify telephonically. In fact, the witness was the husband who was party to the divorce action. In Yocum, the trial court barred husband from testifying via telephone during the divorce trial when wife refused to waive her right to object to such testimony, as husband had been given four months of advance direction to appear in person. The court of appeals first noted that “[a]dmissibility or exclusion of evidence rests within the sound discretion of the trial court which should be reversed only for abuse of that discretion.” Austin v. City of Memphis, 684 SW2d 624, 634 (Tenn. Ct. App. 1984). The court of appeals went on to quote Rule 43.01 of the Tennessee Rules of Civil Procedure and the Kelly case mentioned above and affirmed the trial judge’s decision to prohibit husband from testifying.
In Yocum, husband testified in several prior hearings by telephone. However, when the trial court set a date for the final hearing, it specifically ordered that the husband “shall be physically present at the final divorce hearing.” Husband objected to appearing in court because he worked overseas and was worried that he would lose his job if he came to court.
So, what comprises good cause, compelling circumstances and appropriate safeguards? It appears that there are no Tennessee cases that specifically address this question. However, pursuant to the Yocum case, the trial court will be given broad discretion to make this decision. Therefore, it will be important to file a pre-trial motion to allow a witness to testify outside of court. Joshua L. Rogers
