Remote Testimony of Witness at Trial

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There is something about seeing a witness live in trial; seeing them walk into a courtroom and swear to tell the truth. Credibility can be assessed while the witness is giving their testimony. As technology becomes more of a daily requirement, live testimony – as we know it – could soon be changing. Similar to FED. R. Civ. P. 43(a), Illinois Supreme Court Rule 241, adopted Oct. 4, 2011, addresses the use of videoconferencing technology in civil cases.

Illinois Supreme Court Rule 241 states, “The court may, for good cause shown in compelling circumstances and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location.”

Live testimony in court is extremely important for a case. Certain circumstances, however, arise where a witness is unable to attend trial. Examples of this are accident or illness. When this happens a witness might still be able to testify from a remote location. Per the rule, “good cause and compelling circumstances may be established if all parties agree that testimony should be presented by contemporaneous transmission; however, the court is not bound by a stipulation and can insist on live testimony.”

If permitted to provide testimony through contemporaneous transmission, it is important to ensure accurate identification of the witness and protect against influences of people who might be present with the witness at the remote location.

On Feb. 20, 2014, the Washington Court of Appeals Division II issued a decision upholding the use of Skype in Marriage of Swaka 319 P.3d 69 (2014). In Marriage of Swaka, the relocating parent resided in Spain with her children while awaiting trial. Before trial, the mother requested she, her fiancé and other witnesses be allowed to testify via Skype due to the incredible burden of traveling to the United States. The trip would not only be costly, but it would also remove her children from school and greatly disrupt their lives with various other circumstances. As a result, there was great concern about what else would happen if she brought herself and the children to Washington.

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Similarly in a case where remote testimony was allowed, the United States District Court for the Southern District of New York explained in detail the precautions it took to ensure the efficiency of the technology Virtual Architecture, Ltd. v. Rick, C.A. No. 08 Civ. 5866 (SHS), 2012 U.S. Dist. LEXIS 151118, at * 6-7 (S.D.N.Y. Feb. 7, 2012). The plaintiff made the necessary arrangements for the videoconference to begin at a set time. The court excused the jury and spoke to the witness to establish that he was able to see the bench, the jury box and the attorneys when they approached a designated spot to ask questions. The court confirmed the quality of the video and audio transmission on a large screen displaying the witness’s face, upper body and surroundings. After the jury returned, the witness was sworn in and direct, cross and redirect examination took place. A slight, non-disruptive time delay occurred between the asking of questions and the answering of questions. Nonetheless, the jury was able to observe the witness’s demeanor and responsiveness. The court was “comfortable that the technology enabled the witness to observe and comprehend ‘the very ceremony of the trial and the presence of the factfinder’” and that the jury received a close equivalent to the witness’s physical presence in the courtroom.

If your case may require a witness to testify remotely, there are various technological items that need to be addressed. The most important item to consider is the platform to be used for viewing the remote witness. The Circuit Court of Cook County has a mobile videoconferencing system that is currently available in the Daley Center. Currently, litigants are allowed to use it at no cost. The cart is mobile and can easily be moved between courtrooms. The judge will need to be the one that requests this information. Another potential platform is Skype. However, many courts might not be set up for this type of interaction. Therefore, it is important to test the system prior to the time of actual proceedings. You will want to ensure the Internet connection is at its strongest. There are various other platforms, such as Adobe Connect, Remote Counsel and Vidyo just to name a few. We will explore Adobe Connect further in a future article. Obviously the best option is videoconferencing. Most videoconferencing equipment allows the transmission of computer images, such as exhibits or PowerPoint slides, and can be used to view exhibits.

Videoconferencing and web conferencing are constantly improving. There are various platforms available that will achieve a secure connection to a witness that needs to testify for trial. Time will tell if courts will be more receptive to modern transmission of trial testimony in cases where a witness cannot appear on the stand in the courtroom.

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