New York Court Disallows Video Testimony

In an important ruling, New York’s Appellate Division, First Department recently held that, as a general rule, a trial court may not accept trial testimony that is conducted via video or teleconferencing because it violates the other party’s constitutional right to confront adverse witnesses. Although the Appellate Court acknowledged that there were limited exceptions to this rule, such as cases where testimony was sought from children that were victims of abuse, the majority of the split court still felt that a party’s right to confront adverse witnesses “face to face” outweighed other parties’ needs to adduce testimony from witnesses that could not appear in court either due to illness or inconvenience (such as where the complainants lived in Australia).

 

This ruling was rendered in the criminal law context, but apparently applies in the civil context as well, including cases dealing with small business or commercial litigation, personal injury or defective products lawsuits.  And this can have very real economic and other consequences, such as where one of the defendants to a defective products lawsuit is a foreign manufacturer or distributor, or where the “silent” partner of a small company is a venture capitalist who lives more than 6,000 miles away.

 

In the end, I am not convinced that face-to-face confrontation is uniquely able to reveal the truth, particularly given the technological advances that would render these witnesses in remote locations to view the entire courtroom – including their adversaries. To the contrary, I think that this ruling effectively dealt the search for truth a harsh blow, because it will prevent numerous important witnesses from telling their stories before juries.