Plug Pulled on Live Video Testimony

Real-life video transmission of important proceedings, such as the inauguration of the new president or the nitty-gritty body banging of football combatants in the Super Bowl, brings to one's living room details of events contemporaneously unfolding thousands of miles away. Thanks to masterful video technology the concept of a “ringside seat” has expanded to include one's own armchair or sofa. Events, statements, gestures, even body language can be transmitted and seen real-time or recorded for later viewing and reviewing. Close-ups bring us the proverbial “joy of victory and agony of defeat” written on the faces of those expressing exultation, sadness, anger, misery and frustration.

Televised Trials

In light of such capabilities and general acceptance by the public, have you ever wondered why real-time, live video transmission of trial testimony is not a mainstay in courtroom proceedings, especially where witnesses are located far away or logistics, inconvenience and expense make a personal appearance in court onerous, if not impossible? Suppose, for example, that an elderly, disabled witness in California can meaningfully contribute to the search for the truth in a New York trial, yet the rigors of travel are too physically oppressive, or the cost of the round-trip plus lodging is too expensive for one's limited income. Should that witness be permitted to testify live before the jury via high-resolution, large-size video monitors? Would that alternative make life in the courtroom easier in numerous scenarios?

Obviously, some important factors seem to be impeding a rush towards televised trials. A split decision by a New York appellate court, in the criminal case of People v. Wrotten, 2008 NY Slip Op 10226, 2008 WL 5396862 (App. Div., 1st Dep't, Dec. 30, 2008) amply reflects some of the tensions. The panel divided three to two, issuing informative opinions providing bench and bar with much to ponder. While Wrotten is a criminal case, the ramifications of the decision extend to civil litigation and potentially product liability cases. This two-part article will examine those ramifications.

Wrotten

The defendant was a home health aide who briefly cared for the complainant's wife before her transfer to a nursing home. Some two months later, the defendant, who maintained a relationship with the couple, came to the complainant's home and helped prepare snacks to bring to the wife. What happened next is a matter of sharp dispute. The 84-year-old complainant testified that defendant assaulted him with a hammer, demanded and took money from him and fled. The defendant, on the other hand, testified that the complainant grabbed her breasts and that, to get his hands off her, she “picked up something and hit him with it.” The defendant denied taking any money.

Prior to her trial for assault and robbery, the prosecution moved to have the complainant's testimony presented by television if he were unable to travel to New York without seriously endangering his health. The trial court granted the motion to the extent of ordering a hearing on whether there was a factual necessity to permit the televised testimony. Following the hearing, the trial judge determined that the prosecution had established by clear and convincing evidence that the complainant was unable to travel to New York without a serious risk to health. The court permitted prosecutors to present the complainant's testimony by a live, two-way television conference.

The conclusion of this article will discuss the issues raised by video testimony.

Michael Hoenig, a member of this Newsletter's Board of Editors, is a member of New York's Herzfeld & Rubin, P.C.

Real-life video transmission of important proceedings, such as the inauguration of the new president or the nitty-gritty body banging of football combatants in the Super Bowl, brings to one's living room details of events contemporaneously unfolding thousands of miles away. Thanks to masterful video technology the concept of a “ringside seat” has expanded to include one's own armchair or sofa. Events, statements, gestures, even body language can be transmitted and seen real-time or recorded for later viewing and reviewing. Close-ups bring us the proverbial “joy of victory and agony of defeat” written on the faces of those expressing exultation, sadness, anger, misery and frustration.

Televised Trials

In light of such capabilities and general acceptance by the public, have you ever wondered why real-time, live video transmission of trial testimony is not a mainstay in courtroom proceedings, especially where witnesses are located far away or logistics, inconvenience and expense make a personal appearance in court onerous, if not impossible? Suppose, for example, that an elderly, disabled witness in California can meaningfully contribute to the search for the truth in a New York trial, yet the rigors of travel are too physically oppressive, or the cost of the round-trip plus lodging is too expensive for one's limited income. Should that witness be permitted to testify live before the jury via high-resolution, large-size video monitors? Would that alternative make life in the courtroom easier in numerous scenarios?

Obviously, some important factors seem to be impeding a rush towards televised trials. A split decision by a New York appellate court, in the criminal case of People v. Wrotten , 2008 NY Slip Op 10226, 2008 WL 5396862 (App. Div., 1st Dep't, Dec. 30, 2008) amply reflects some of the tensions. The panel divided three to two, issuing informative opinions providing bench and bar with much to ponder. While Wrotten is a criminal case, the ramifications of the decision extend to civil litigation and potentially product liability cases. This two-part article will examine those ramifications.

Wrotten

The defendant was a home health aide who briefly cared for the complainant's wife before her transfer to a nursing home. Some two months later, the defendant, who maintained a relationship with the couple, came to the complainant's home and helped prepare snacks to bring to the wife. What happened next is a matter of sharp dispute. The 84-year-old complainant testified that defendant assaulted him with a hammer, demanded and took money from him and fled. The defendant, on the other hand, testified that the complainant grabbed her breasts and that, to get his hands off her, she “picked up something and hit him with it.” The defendant denied taking any money.

Prior to her trial for assault and robbery, the prosecution moved to have the complainant's testimony presented by television if he were unable to travel to New York without seriously endangering his health. The trial court granted the motion to the extent of ordering a hearing on whether there was a factual necessity to permit the televised testimony. Following the hearing, the trial judge determined that the prosecution had established by clear and convincing evidence that the complainant was unable to travel to New York without a serious risk to health. The court permitted prosecutors to present the complainant's testimony by a live, two-way television conference.

The conclusion of this article will discuss the issues raised by video testimony.

Michael Hoenig, a member of this Newsletter's Board of Editors, is a member of New York's Herzfeld & Rubin, P.C.