On January 23, 2020, the New Jersey Appellate Division issued a published decision in a matter with which I am involved as to when a person may appear at trial and present testimony by way of contemporaneous video transmission. This decision is the Appellate Division’s attempt to fill the void regarding a unique and evolving issue in today’s technological landscape, as there is no clear legal guidance from regarding the standard for a person to appear remotely for testimony (excluding criminal trials, which have separate constitutional requirements).
The Supreme Court previously utilized what is known as the Aqua Marine test (named after a 1988 decision), which addressed when a person can appear telephonically to testify at a hearing or trial (that test rested mostly on whether an exigency exists requiring telephonic testimony). However, the Appellate Division in the instant matter indicated that technology has modernized greatly since Aqua Marine such that a new standard must be applied.
To that end, the Appellate Division enumerated seven (7) different factors for a trial court to consider when deciding whether to permit a person (even a party) to appear to testify by contemporaneous video transmission (i.e. videoconferencing):
- The witness’ importance to the proceeding;
- The severity of the factual dispute to which the witness will testify;
- Whether the factfinder is a judge or jury;
- The cost of requiring the witness’ physical appearance in court versus the cost of transmitting the witness’ testimony in some other form;
- The delay caused by insisting on the witness’ physical appearance in court versus the speed and convenience of allowing the transmission in some other manner;
- Whether the witness’ inability to be present in court at the time of trial was foreseeable or preventable; and
- The witness’ difficulty in appearing in person.
The Appellate Division held it is the trial judge’s responsibility to weigh all of these factors and decide as to whether a person may appear remotely for testimony. If the trial court permits the remote testimony, it may impose restrictions on same, including, for example, a large screen monitor showing the person’s full body image.
However, the Appellate Division did not apply the new standard to the facts at issue. Instead, the Court provided the parties and the trial judge a “do-over” wherein arguments can be made and a decision rendered based upon the new test. As stated by Vikki Ziegler and me in an article on law360.com, “The factors enumerated by the Appellate Decision provide additional guidance as to this modern-day legal issue which was not explicitly outlined by the court, statute or court rules clearly to date. This decision will likely impact out-of-state / out of country parties and their need to appear in-person to testify at a hearing or trial in the future.”