Monday, August 25, 2014

Telephone Testimony

Lots of times witnesses may have travel issues which makes it hard for them to get to court.  The question is:  Can they testify by phone?  Like many things in the law, the answer appears to be maybe.  This was the issue in Byrd v. Nix 548 So.2d 1317 (Miss. 1989).  In this case, the trial judge refused to allow a witness to testify via telephone and was affirmed on appeal.  Here is the relevant language:

"In the absence of exigency or consent, telephonic testimony generally has not been allowed. See e.g., Aqua Marine Products, Inc. v. Pathe Computer Control Systems Corp., 551 A.2d 195, 200, 229 N.J.Super. 264 (1988) (remanded for a new trial because the lower court allowed telephonic testimony in the absence of special circumstances); Rose v. State, 294 Ark. 279, 742 S.W.2d 901, 905 (1988) (the court excluded the testimony of an out-of-state police officer in a Miranda hearing); Sherman v. Com. Unemp. Compensation Bd. of Review, 114 Pa.Cmwlth. 424, 539 A.2d 23, 25 (1988) (the court held that absent regulations governing telephonic hearings, it could not uphold evidence adduced therein over proper and timely objection of a claimant); State ex rel. Juvenile. Dept. of Multnomah County v. Gates, 86 Or.App. 631, 740 P.2d 217, 218 (1987) (the court reversed a trial court order allowing the telephonic testimony of out-of-state caseworkers and a psychologist in an action brought to terminate parental rights, reasoning that testimony by telephone was not authorized by statute or procedural rule, and denial of an opportunity to observe the witnesses was manifestly prejudicial).        

In recognizing the different positions taken on the matter, we hold that the admissibility of telephonic testimony is within the sound discretion of the trial judge and is not reversible unless such discretion is abused. In the instant case the facts do not evince that the trial judge abused his discretion in not allowing Dr. Selby to testify by telephone. The judgment of the lower court, therefore, is affirmed. We find no merit to the remaining statements of issue."

From reading the above, it is largely within the discretion of the judge to allow this type of testimony but is to be discouraged since there is no opportunity to observe the witness.  Best advice I can give is file a motion and getting a ruling if at all possible before hand.  The witness better have an emergency and be of necessity to your case if this is not possible.  This is one area the Rules Committee needs to add a rule to address.    

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