Is Skype Testimony Allowed In Court?
Posted Wednesday, June 11, 2014 by Christopher L. Thayer
Traditionally, all witnesses are required to testify live in Washington courts, even if this means substantial inconvenience for the witnesses. On occasion, witnesses have been allowed to testify by telephone, but this has been a rare exception, as there is a concern that the judge and/or jury cannot see the witness to assess his or her credibility. Moreover, there is the possibility that the person on the phone could misrepresent who they are (i.e., claim to be “Joe Smith”, when in fact he is not), or that they could be coached by someone else in the room. These concerns have caused testimony by telephone to be relatively rare. However, new technologies are changing this.
In the first reported decision on this issue in Washington, the Court of Appeals (Division II), affirmed the trial court’s ruling which allowed a party to testify via Skype video conference in a divorce proceeding. In re Marriage of Swaka, 319 P.3d 69 (2014). In this case, the mother had moved to Spain with the parties’ children. She asked the trial court to allow her to testify via Skype in order to avoid the cost of travel and the disruption to her children. The trial court noted that Civil Rule 43 authorizes testimony by “contemporaneous transmission” where it can be shown there is “good cause” and “compelling circumstances with appropriate safeguards”. The Court of Appeals found that, under the unique circumstances of this case, that it was appropriate for the trial court to authorize the mother to testify via Skype. With technology making videoconferencing more common in the business world, it is likely that testimony via Skype (or similar video conferencing software) will become more commonplace in the courtroom.
So, how do we feel about that? As a litigation lawyer, I can say that coordinating the schedules (and travel) of witnesses to testify at trial can be a huge logistical challenge – and expensive. Experts do not fly in from out of state for free. Any reasonable measure that helps decrease the cost of litigation is worth looking at in my opinion. But, there are always tradeoffs and risks. Even with high-definition video, I think it is safe to assume that some of the “impact” of testimony will be lost when it is shown on video. There is some intangible value, some “presence” factor, that plays into a person testifying live. When you are in a room with someone who is visibly uncomfortable in trying to explain his or her conduct, or re-live a traumatic event – you can feel it in the room. Do you get the same effect watching the same testimony on video? In my opinion, not quite. Also, you have to deal with the uncertainty of technology – which has a tendency to fail us at the most inopportune moments. If a video feed drops, you may have lost your chance to present a witness, and it can make you as the attorney look “unprofessional”. There can also be a problem if the video feed drops while a witness is being cross-examined. Just when you have the witness backpedalling and having difficulty explaining some inconsistency in their story – the video feed drops. By the time the video feed is reestablished, the witness may have composed themselves or even had a chance to talk to someone else.
My thought is that Skype testimony definitely has its place in the modern courtroom. It can save money and time for our clients and avoid significant inconvenience for witnesses. But, I would caution against it where a particular witness may be providing strong emotional testimony – for fear that some of that may be lost on the screen. I would also be wary of allowing Skype testimony for key witnesses who may be subject to significant cross examination. Please share your thoughts.