Who actually has to attend a trial in person these days?

Written by Kate Adams, Esq.

Edited by Bill Pfund, Esq.

With the ever changing world we live in testimony in person is moving toward becoming a thing of the past for certain non-critical witnesses. A new rule that went into effect on March 15 addresses the need to embrace technology and its use in our civil trials.

Virginia Supreme Court Rule 1:27 provides guidance to the court and litigants as to when and what witnesses should be permitted to testify through an audiovisual link as opposed to in person at trials and hearings. The discretion to allow testimony to be presented in this manner and what witnesses it applies to, as with most rules is left to the court’s discretion. However, the rule contains some strong language directing the court that certain non-critical lay witnesses should be permitted to testify by using a live audio visual link.

The new rule states that the court “should” enter an order permitting live testimony by means of audiovisual technology in this following circumstances.

  1. Upon consent of all parties
  2. If the lay witnesses is more than 100 miles from the hearing location
  3. If the witnesses is a superintendent of a hospital for the insane more than 30 miles from the place of trial,
  4. If the witness is a physician, surgeon, dentist, chiropractor, registered nurse, physician’s assistant or nurse practitioner who, in the regular course of his or her profession, treated or examined any party to the proceeding,
  5. If the witness is in any public office or service the duties of which prevent his attending court

Under this new rule parties and expert witnesses are still viewed as being critical to the outcome of the case and therefore, are still viewed as necessary to appear in person to offer testimony. The rule however does provider that under “exceptional circumstances” the court may permit audio visual testimony of parties and expert witnesses.

When a witness does not fall into the categories listed above where the court “should” permit live testimony by means of audiovisual technology subsection (d) provides that any party may move for leave to present live testimony by audiovisual means and the court in its discretion should consider the following when making the determination.

  1. Whether the ability to evaluate the credibility and demeanor of the person who would testify remotely is critical to the outcome of the proceeding, and
  2. Whether the non-moving party has demonstrated that face-to-face cross-examination is necessary because the issues the witness may testify about may be determinative of the outcome.

One of the caveats to an out of state witness providing testimony by audio visual means is the requirement of written consent before testimony can be taken. Under subsection (e)(2) a witness testifying outside the commonwealth must before testifying sign a written consent asserting they will provide testimony under oath, expressly agree to be subject to the penalties of perjury under Virginia law, and be subject to the courts orders as though the witness was physically present in the courtroom, and consent to personal jurisdiction for the enforcement of perjury laws and orders relating to testimony.

The cost and responsibilities for making the technological arrangements to conduct live audio visual testimony is the sole responsibility of the party offering testimony in this manner. The rule clearly states that any failure to ensure the technology works property will not constitute grounds for a continuance.

Although there has been some guidance on this issue in the past this new rule provides the judges and litigants with a comprehensive map as to how and when audiovisual testimony should be permitted. With the advances in technology more and more testimony will be conducted in this manner which will assist in obtaining cooperation with witnesses who don’t want to be inconvenience by traveling to court.

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