A Party’s Trial Testimony by Contemporaneous Video Transmission

Pathri v. Kakarlamath, 462 N.J. Super. 208 (App. Div. 2020). This was a matrimonial matter. Both spouses came to the United States from India. Shortly after plaintiff filed this suit for divorce, he moved back to India. Shortly before trial, plaintiff sought the right to testify from India by contemporaneous video transmission, because he was unable to get a visa to come to the United States to testify in person. The Family Part denied the motion because it would inhibit the judge’s ability to assess plaintiff’s credibility. Plaintiff sought and was granted leave to appeal, and today the Appellate Division reversed in an opinion by Judge Fisher.

Judge Fisher began by noting that “[o]ur court rules do not provide for testimony by way of contemporaneous video transmission, but they don’t prevent it either.” He cited several contexts in which videotaped, or even telephonic, testimony is permitted.

The Family Part had relied on Aqua Marine Products, Inc. v. Pathe Computer Control Systems Corp., 229 N.J. Super. 264 (App. Div. 1988). That case involved testimony by telephone, which (unlike what plaintiff proposed here) involved “the presentation of remote testimony heard but not seen.” There, the Appellate Division developed a two-part test that allowed telephonic testimony only in “special situations in which there is either exigency or consent and in which the witness’ identity and credentials are known quantities ”

In State v. Santos, 210 N.J. 129 (2012), the Supreme Court, in dicta, noted that the Court Rules neither “expressly require” live, in-person testimony nor “directly prohibit remote testimony by telephone.” Santos suggested that the Aqua Marine two-part test involving exigency and certainty of the identity of the witness needed to be satisfied. Thus, today’s decision proceeded on the assumption that the two-part test would govern in this somewhat different context as well.

Judge Fisher noted that, in the 30 years since Aqua Marine, we entered the age of such things as Skype and FaceTime. Such “extraordinary advancements in technology” and the “dramatically different circumstances” that led to the request here called for the allowance of contemporaneous video testimony. Federal Rule of Civil Procedure 43(a), which was amended in 1996 to allow trial testimony via contemporaneous video transmission “for good cause in compelling circumstances and with appropriate safeguards,” supported that result as well, Judge Fisher said.

The court then proceeded to discuss a list of factors that should be considered in deciding whether to grant an application to testify at trial in this fashion. Indeed, roughly half the opinion was dedicated to that subject, giving trial courts ample guidance. The Appellate Division did not decide that plaintiff was entitled to testify remotely here, but remanded the matter to the Family Part for further briefing by the parties and consideration by that court.

In a footnote, Judge Fisher observed that “[t]he notion that a judge as factfinder has a critical need to view the witness face to face, or observe the witness’ body language in person, in order to make findings about the witness’ credibility and demeanor may be greatly exaggerated. Many bench trials are conducted by placing the witness in a box below and to the immediate left or right of the judge, who is left to consider the witness’ demeanor while looking at the side of the witness’ face.” Video testimony with the witness facing a camera full on may actually afford a better chance to assess credibility than is normally the case in a bench trial, Judge Fisher said.

Gilbert and Sullivan fans (I am among them) will appreciate Judge Fisher’s references, in the very first paragraph of his opinion, to The Pirates of Penzance. There, he observed that, in most respects, the Court Rules are “the very model of a modern” set of civil guidelines. But because the Rules did not answer the question presented here, the Appellate Division “feeling ‘plucky and adventury,'” like the model Major-General in that light opera, went ahead and answered the question as best it could.