Lights, Camera, Action: Videoconference Trial Testimony

• Videoconferencing in Criminal Proceedings
• A Juvenile Defense Attorney's Perspective

By Stuart G. Mondschein

With the computer and video industries expanding - and the prices for hardware and services declining - more attorneys may incorporate these technologies into their trial work. Technology previously afforded only by large firms now is accessible to smaller firms.

While videotape has long offered the chance to present witnesses at trial who are unable to appear in court,¹ videotape has distinct disadvantages. Often, the proponent of the testimony must reveal his or her trial strategy weeks in advance of the trial. In addition, objections can be cumbersome on videotape. For example, when objections are raised before trial, and the videotape is edited, the end product often is choppy. If objections are raised at trial, the interruptions can annoy the jury. In addition, the lack of interaction between attorneys and witnesses in the courtroom can make the videotaped testimony dull. Still, cost and expert witnesses' availability often force attorneys to present videotaped testimony.

Today, because of the lower cost of technology, there is a viable alternative to videotaped testimony. Two-way videoconferencing is a practical way to present live courtroom testimony of witnesses from remote locations. Although videoconferencing is not cheap, and in some cases may not be less expensive than bringing an expert across country or travelling to a video deposition, it still has its advantages. Videoconferencing presents an expert the opportunity to testify without leaving home, making it possible to use experts who otherwise are unwilling to testify. This live testimony holds the jury's attention. While videoconferencing has been used for depositions, it is only recently that the costs of portable equipment have come down enough to be considered for live courtroom testimony in civil cases.

Videoconferencing in Wisconsin's Judicial System

Over the last few years, several counties have introduced live video testimony capabilities for limited purposes, primarily in juvenile and criminal proceedings. Video allows counties to address safety concerns and save money by limiting the need to move participants to the courtroom from jails or juvenile facilities for appearances. In Milwaukee County videoconferencing provides two-way appearance links between the Children's Court Center and the juvenile facilities at Lincoln Hills and Wales. In the Milwaukee County Criminal Justice Facility, closed circuit television capability exists between the jail and the preliminary hearing court, the intake court and the high security courtroom.

Several other counties now have or are planning similar capabilities. In Wood County there is a videoconference link between the courthouse and a local mental health facility. In Dodge County videoconference links are planned between the courthouse and state corrections facilities to ease safety and transportation problems. In Green County, a single-judge county, Judge W.M. McMonigal actively promotes the development of courtroom video technology. Green County has installed video arraignment capabilities and a video presentation system compatible with live videoconferencing.

For many single-judge counties, the prospect of intercourt live video-conferencing has great potential given that judges regularly travel long distances to other counties, often for short hearings and proceedings. According to John Voelker, a senior policy analyst with the Director of State Courts, the Wisconsin Supreme Court is exploring the possibility of a pilot project to set up one county with full-scale video-conferencing to develop statewide guidelines. Despite increasing interest, according to Voelker fewer than 10 county court systems use jail-to-courtroom links, and none have full-time courtroom videoconferencing capabilities to outside remote locations for civil testimony.

Videoconferencing in Civil Cases

While most of the activity has been in the criminal and juvenile areas, video-conferencing also may be used in civil cases. Section 807.13(2) of the Wisconsin Statutes provides that in civil actions a court may admit oral testimony through live audiovisual means subject to cross-examination when the applicable statutes or rules permit, ² when the parties so stipulate ³ or the proponent shows good cause to the court. ⁴ In granting permission the court may consider:

• whether any undue surprise or prejudice would result; ⁵
• whether the proponent is unable to procure the physical presence of the witness; ⁶
• the convenience of the parties and the proposed witness, and the cost of producing the witness in relation to the importance of the offered testimony; ⁷
• whether the procedure would allow effective cross-examination including the use of documents; ⁸
• the importance of presenting the testimony of witnesses in open court to allow the observation of the witness's demeanor; ⁹ and
• whether the quality of the communication is sufficient to understand the testimony. ¹⁰

There also is a "catch all" category of considerations that the court may use to grant permission, ¹¹ and the statute allows the court great flexibility in deciding whether to allow videoconference testimony where a stipulation is not made.

Section 807.13(4) guides the reporting of telephonic conferences. Although by its terms this section is not specifically applicable to live audiovisual presentations, it provides some guidance for presenting videoconference testimony. For example, it requires that the court reporter be in simultaneous communication with all parties whether in the physical presence of any of them ¹² and, with the exception of scheduling conferences and pretrial conferences, that proceedings be conducted so as to allow for public access.¹³

Equipment in the Courtroom

In what appears to be a Dane County Circuit Court first, a pediatric infectious disease expert from California testified recently in a medical negligence case via a two-way videoconference hookup. Based on jury feedback, the results were effective. From a technology perspective, the arrangements were relatively easy.

The first step in presenting videoconference testimony in the medical negligence case noted above was to install integrated services digital network (ISDN) telephone lines ¹⁴ in the Dane County Courthouse through the local telephone provider. These lines can handle more information than conventional telephone lines. To present a reasonable quality image, three ISDN lines probably are required. In this case, the local telephone company installed the ISDN lines to the telephone switching room at the Dane County Courthouse and required a minimum one-month rental for them.

With three ISDN lines, picture quality was good but not as clear as a videotape's. There was sufficient image detail so the jury could see witnesses blink, swallow hard or roll their eyes. While there was a slight delay between the question and response, it was not distracting.

Once installed, the court administrator arranged to run wires from the switching room to the assigned courtroom. These remained in place for future use following the trial. The cost of the wire itself was nominal. Pulling the wires to the courtroom in most buildings is relatively uncomplicated and inexpensive: most buildings have chases or drop ceilings through which to route the wires. Some courthouses already may contain the necessary wiring from the telephone switching room to a courtroom. In courthouses where internal wiring is difficult, it still is a relatively simple matter to bring the necessary wires through the hallways or into a window temporarily.

In the Dane County case, once the wires reached the courtroom, a contract videoconferencing company assumed the process. The wires were connected to a portable videoconferencing unit that consisted of a conventional large-screen television, a small well-camouflaged camera on top of the television and a videoconferencing unit that looked like a conventional VCR. The equipment was unobtrusive and easily fit on a standard rolling television cart.

The camera was focused on the place where the questioning attorney would stand. The television screen was arranged to face the jury. Additional monitors can be arranged for the judge and other counsel. If only one screen is used, the participants must move so that all participants can see it.

The Remote Location

A videoconferencing facility is required near the witness's location. Most universities and many hospitals already have videoconferencing centers. There also are commercial videoconferencing service facilities. In this case, the witness was a physician associated with a hospital that had its own videoconferencing center.

Videoconferencing centers are conference rooms prewired with cameras and transmitting equipment. Because of the difficulty in precisely timing the testimony of witnesses during a trial, consider reserving a large block of time; only the time that is used probably will be billed.

At the appointed hour, a telephone connection is made between the courtroom and the remote videoconferencing facility using the ISDN lines. The courtroom television then shows the witness and the witness sees the courtroom. Conventional microphones wired through the videoconference equipment and the television speakers bring sound to both locations. Although not used in the Dane County case, "kill switches" are available for the judge to resolve an objection or interrupt testimony. A special document camera can display documents between the locations, although it is best to provide witnesses duplicates of any documents that might be needed in court. Prenumbering document pages keeps all participants "on the same page."

Cost

The total expense for presenting an afternoon of trial testimony including one month of ISDN service from the phone company, a two-week rental of the video equipment, installation of courthouse wiring and rental of remote videoconference center time was approximately $2,200. This arrangement and expense allowed for the presentation of additional video testimony at any point during the trial.

The Advantage of Live Videoconferencing

While it usually is best to present a witness in court, jurors are accustomed to watching television and easily focus their attention on the screen. The videoconference presentation maintains more jury interest than videotape due to attorney participation in the courtroom. The proponent attorney can tailor questions to the actual trial testimony presented before the videoconference witness's testimony rather than present a tape that may in some significant respect no longer fit the facts of the case. The judge also can deal with objections without any unusual disruption.

Videoconferencing, while certainly not cheap, can make sense when compared to an expert witness's "all-day" charge, travel expenses and travel time. Medical witnesses in particular, with their hefty hourly rates and the demands on their time, are good candidates for videoconferencing testimony. In addition, when a witness is important and travel is inconvenient, the lawyer can use videoconferencing to prepare the witness for trial.

Conclusion

While videoconferencing is not a substitute for presenting a good witness in the courtroom, in the appropriate situation it is a useful and potentially cost-effective tool for trial. Attorneys should add it to the options they consider in deciding how distant witnesses and parties to the proceeding can be presented.

Endnotes

¹ See Wis. Stat. §885.40 et seq.

² Wis. Stat. §807.13(2)(a).

³Wis. Stat. §807.13(2)(b).

⁴ Wis. Stat. §807.13(2)(c).

⁵ Wis. Stat. §807.13(2)(c)(1).

⁶ Wis. Stat. §807.13(2)(c)(2).

⁷ Wis. Stat. §807.13(2)(c)(3).

⁸ Wis. Stat. §807.13(2)(c)(4).

⁹ Wis. Stat. §807.13(2)(c)(5).

¹⁰ Wis. Stat. §807.13(2)(c)(6).

¹¹ Wis. Stat. §807.13(2)(c)(8).

¹² Wis. Stat. §807.13(4).

¹³ Wis. Stat. §807.13(4)(d).

¹⁴ Each ISDN line in this case consisted of a pair of two conventional telephone wires so that six conductors were required for three ISDN lines. ISDN service is available from Ameritech in about 90 percent of the telephone exchanges in the state. Besides ISDN, there are other transmission formats available, but ISDN seems to be the cheapest and most flexible today.

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