2017 Boyd-Graves Conference October 6-7, 2017

Hyatt Regency Reston Reston, Virginia HUNTON & WILLIAMS LLP

HUNTON(\I 2200 PENNSYLVANIA AVENUE. NW WILLIAMS WASHINGTON. D.C. 20037-1701 951 EAST BYRD STREET RICHMOND. VA. 23219

STUART A. RAPHAEL DIRECT DIAL: 202 • 419 • 2021 MOBILE 202 • 419 • 2021 EMAIL: [email protected]

September 13, 2017 FILE NO 99997.Cl32775

Via E-Mail

Boyd-Graves Conference Members

Re: 2017 Boyd-Graves Conference

Dear Members:

I am pleased to present the Conference Booklet, containing the committee reports and other materials that we will consider at our 2017 meeting at the Hyatt Regency Reston on October 6 and 7. Our committees have worked hard during the year to prepare their reports and recommendations.

The Boyd-Graves Conference will make a recommendation for a statutory or rule change only if there is a consensus. Please review the materials in advance of the Conference to be better prepared to discuss your comments, concerns, and suggestions. The Conference enjoys a superb reputation with the General Assembly, the Virginia judiciary, and members of the bar. Preserving that reputation depends on our carefully vetting proposals for change.

In that regard, I call your attention to the Boyd-Graves Conference Mission Statement at Tab 1. It provides in part that by accepting an invitation to attend, each member agrees to set aside what might benefit his or her particular practice in favor of a solution in the best interests of all involved in civil litigation in Virginia.

ard to seeing you at the 2017 Boyd-Graves Conference. We are also planning a reception and dinner on Friday, which I hope you can attend.

ATLANTA AUSTIN BANGKOK BEIJING BRUSSELS CHARWTTE DALLAS HOUSTON LONDON LOS ANGELES MIAMI NEW YORK NORFOLK RALEIGH RICHMOND SAN FRANCISCO TOKYO TYSONS WASHINGTON www.hunton.com BOYD-GRAVES CONFERENCE Hyatt Regency Reston Reston, Virginia October 6-7, 2017

AGENDA

SESSIONS: Friday, October 6 2:00 p.m. — 5:00 p.m.

Saturday, October 7 9:00 a.m. — Noon

RECEPTION: Friday, October 6 6:00 p.m.

DINNER: Friday, October 6 7:00 p.m. (Business Attire)

Acknowledgement

The Boyd-Graves Conference expresses its heartfelt appreciation to the

Virginia Bar Association for its extensive support of the Conference. Although the

Conference is not part of the VBA, the VBA makes its staff available for administrative support of Conference activities. The Boyd-Graves members especially thank the staff of the VBA for their outstanding contributions to the success of this Conference. TABLE OF CONTENTS AND AGENDA

Friday, October 6, 2017

Topic Time Tab Page

Introductions 2:00 p.m. 1 2 Stuart A. Raphael, Conference Chair

Minutes of 2016 Conference 2:10 p.m. 2 6 John A.C. Keith, Conference Secretary

Conference Arrangements 2:15 p.m. Stuart A. Raphael

Legislative Report 2:20 p.m. 3 12 Professor Hamilton Bryson

Rules of Evidence Update 2:30 p.m. 4 40 R. Lee Livingston, Chair Professor Kent Sinclair

Appeals of right 2:50 p.m. 5* 68 Monica T. Monday

Live testimony by video 3:15 p.m. 6* 75 Charles F. Hilton

ESI Discovery 3:30 p.m. 7* 201 David P. Corrigan

Releasing joint-contract obligees 3:45 p.m. 8* 205 Wyatt B. Durrette, Jr.

Preserving error on reconsideration motions 3:55 p.m. 9 208 Elizabeth Guilbert Perrow

Sanctions under Rule 4:12(d) 4:15 p.m. 10 214 J. Tracy Walker, IV

Preserving objections in final orders 4:35 p.m. 11 222 Frank K. Friedman

Review of no-contempt findings 4:50 p.m. 12 230 James O'Keeffe

i * denotes carryover topic

Saturday, October 7, 2017

Topic Time Tab Page

Relaxing the assignment-of-error rules 9:00 a.m. 13 243 L. Steven Emmert

Court reporter certification 9:20 a.m. 14 247 Philip C. Coulter

Rule-to-show-cause procedure 9:35 a.m. 15* 254 The Hon. Dennis J. Smith

Attorney-issued subpoenas under UIDDA 9:50 a.m. 16 258 Arthur E. Schmalz

Time computation in Rules 1:7 and 4:15 10:05 a.m. 17 275 Sandra J. Havrilak

Proving attorney's fees 10:20 a.m. 18 281 John R. Walk

Expert disclosures 10:40 a.m. 19 289 David N. Anthony

Rule on witnesses in depositions 10:50 a.m. 20* 292 David J. Gogal

Discovery objections 11:05 a.m. 21 307 Thomas W. Williamson, Jr.

Revising Code § 17.1-625 11:25 a.m. 22 315 Stephen C. Price

Party-patient subpoenas of medical records 11:40 a.m. 23 335 Cathleen Kailani Memmer

Best Report Award 11:50 a.m. Presented by Conference Chair

Concluding Remarks 11:55 a.m. Stuart A. Raphael, Conference Chair

ii * denotes carryover topic

Tab 1

1 MISSION STATEMENT The Boyd-Graves Conference seeks to improve the quality of civil justice in Virginia. It does so through scholarly study and discussion among experienced civil trial lawyers, judges, legislators, and educators, leading to recommendations for changes to the rules and statutes governing the civil justice system in Virginia. The credibility of the Boyd-Graves Conference is maintained by reporting only on areas in which its members have expertise. Invitations to participate in the Conference are issued based upon demonstrated competence in civil litigation, with a view to fostering balance and diversity in practice areas, in gender and ethnic backgrounds, in geographic dispersion throughout Virginia, and in representation of various firm sizes and practice groups. The Boyd-Graves Conference does not represent or advocate the interests of any group or constituency. The independence of the Conference depends on the good faith of the members’ voting their conscience. Members must sometimes subordinate the private interests of the groups to which they belong, or even their own practice area, to the greater good. By accepting an invitation to participate in the Boyd-Graves Conference, each member pledges to uphold these principles. HISTORY More than three decades ago, Thomas V. Monahan, past-president of both the Virginia Bar Association and the Virginia Trial Lawyers Association, invited a small group of experienced civil trial lawyers to a meeting at the Tides Inn in Irvington to discuss potential changes in the rules and procedures applicable to the trial of civil cases in Virginia state courts. Those invited to attend the initial meeting included lawyers from across Virginia who practiced in both large and small firms. A deliberate effort was made to secure a balance between those who primarily represented plaintiffs in civil trials and those who typically represented defendants. From the outset, the focus of the Conference was the identification and discussion of problems encountered in State court civil litigation, with the objective of reaching a consensus concerning needed changes in either the Rules of Court or the Code of Virginia. Whenever a consensus was reached, the resulting recommendation was made directly to the Supreme Court or to the General Assembly. The Conference, which initially took its name from the site of the meetings, came to be known as the Tides Inn Conference. In its formative years, the Conference worked closely with T. Munford Boyd, Edward S. Graves, and Leigh B. Middleditch, Jr., who had served as advisors to the Virginia Code Commission during the 1977 transition of the Code of Civil Procedure from Title 8 to Title 8.01. Because of their significant contribution to the success of the Conference, the name was changed to the Boyd- Graves Conference.

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2 The Conference soon outgrew the Tides Inn, and for many years its annual meetings have been rotated to locations throughout the Commonwealth. What began as informal face-to-face meetings on the sofas of a small lounge at the Tides Inn is now a carefully planned event attended by more than 100 lawyers, judges, professors, and legislators. The Conference is governed by a Steering Committee and a Chair, who generally serves for two years. The Conference has a familial relationship with the Virginia Bar Association, which serves as the repository of the Conference’s records and financial resources and provides invaluable administrative support. Membership in the Conference continues to be by invitation only. We endeavor to facilitate a full and open discussion of issues by maintaining a roundtable configuration and by limiting the number of participants. Larger numbers tend to constrain the individual participation that has been so vital to the work of the Conference. There are no term limits, but neither are there permanent members. Even those who are most active are regularly rotated off the membership rolls to make room for new participants. The Membership Committee attempts to maintain a balance of representation from the various civil litigation practice disciplines, selecting individuals with experience, reputation, and demonstrated ability to contribute to the work of the Conference, as well as a willingness to put aside what benefits his or her particular practice in favor of a solution in the best interests of all involved in civil litigation in Virginia. Although the Boyd-Graves Conference has become larger and more structured, it has remained true to its heritage. At each meeting, the members are invited to suggest topics for future consideration. Other study requests have come from judges, from lawyers who are not currently members of the Conference, and from legislators or legislative committees. The Boyd-Graves Conference feels a particular affinity for the Civil Litigation Section of the Virginia Bar Association, with which it shares members and many common professional interests; members of the Civil Litigation Section are invited to suggest potential topics for study. The Steering Committee evaluates each suggested topic and decides which should be approved for consideration at the next meeting of the Conference. The Conference Chair has the responsibility of appointing a committee to study each of the approved topics. Committee members frequently include lawyers who are not members of the Conference but who are willing to contribute their expertise to its work. Each committee is expected to complete its work and to submit a report of its findings and recommendations to the Conference Chair in advance of the annual meeting. These reports are published in the form of an agenda booklet that is distributed to each member of the Conference in advance of the annual meeting. The agenda booklet was once distributed in paper form. Beginning in 2014, the Conference has distributed the booklet in electronic form only. Each report is presented to the Conference by the committee chair and, after discussion and possible modification of the committee’s recommendations, the Conference votes to approve or disapprove those recommendations. The

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3 Conference will make a recommendation for a statutory or rule change only if there is a consensus. A simple majority is not sufficient. Although the question of whether there is a consensus is left to the discretion of the Conference Chair, the overwhelming majority of the participants (at least two-thirds) must agree before a recommendation for change will be made. The 2017 meeting of the Boyd-Graves Conference will convene at the Hyatt Regency, in Reston, Virginia, on October 6-7, 2017. In addition to the issues carried over from 2016, the Conference will consider a variety of topics, both procedural and substantive, relating to the handling of civil litigation in Virginia state courts. As it has done for more than three decades, the Conference will work toward reaching consensus recommendations that reflect the best of the creative talents of its members.

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Tab 2

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Boyd­Graves Conference Minutes of the Meeting of the Full Conference

University of Virginia Darden School of Business

September 30, 2016

Chairman Stuart Raphael called the meeting to order at 2:00 p.m. After introductions, the Conference members took turns introducing themselves. The Chairman recognized new members and welcomed them to the Conference. The death of Brad Chandler, long time member of the Conference, was noted. He will be greatly missed. The Chairman thanked the legislators attending the Conference: Senator Obenshain, Delegates Habeeb and Loupassi. The Chairman expressed our gratitude to the Virginia Bar Association staff, Brenda Dillard, Assistant Executive Director, and Caitlin McElway, for their excellent efforts in supporting the work of the Conference. Jim Guy, Virginia Bar Association President, and Jeff Palmore, the VBA lobbyist, were also recognized. The Chairman thanked the sponsors for their financial support of the Conference. Legal pads were circulated for members to record their suggestions for topics to study in 2017. Finally, Mr. Raphael announced that nominations for membership in the Conference were due to the Membership Committee by November 1, 2016.

Approval of 2015 Minutes (Tab 2). The Conference approved the minutes of the 2015 meeting.

Conference Arrangements . The Chairman reported that next year’s conference will be held at the Reston Hyatt on October 6 and 7, 2017. Mr. Raphael concluded his remarks by emphasizing the importance of committees’ meeting as early as possible to begin their study and to complete their reports in a timely fashion. He exhorted the members to make the work of the Boyd­Graves Conference a priority.

Legislative Report (Tab 3). Professor Hamilton Bryson presented the legislative report. Professor Bryson skipped over the successful proposals and talked about the proposals for legislation which were unsuccessful. The proposal to extend the Priest-Penitent Communications Privilege to the individuals seeking counseling and advice was derailed in the Senate Courts of Justice Committee because of concerns that it would protect child abusers. The proposals which came from the Landini case, which dealt with a clerk’s responsibility to accept a pleading for filing regardless of when the statutory fees had been paid, was opposed by the Clerk’s Association and ultimately withdrawn. The proposal relating to life insurance coverage after divorce was held over. Three new rules have either been approved and promulgated or are now pending before the Supreme Court of Virginia. The proposal to restate the rule that the clerk must accept and file a pleading when tendered, regardless of whether the statutory fees are paid, was passed over by the Advisory Committee on Rules of Court and the proposed modification to the uniform pretrial scheduling order, section 3, was refused as being contrary to the statutory 30­day time limit.

Evidence Committee Report (Tab 4). The report of the Evidence Committee was presented by Lee Livingston, Chair, and Ken Sinclair. Mr. Livingston thanked the Committee for its hard

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work and Professor Sinclair pointed out that The Guide to the Rules of Evidence in Virginia was once again Virginia CLE’s top selling publication. Rule 2:408 has been rewritten to provide that all communications in settlement are privileged in line with a Boyd­Graves Conference recommendation. A note was added about undisclosed expert opinions in the Committee’s notes on Rule 2:702. Professor Sinclair also pointed out a proposed change to Rule 2:803.1 implementing the provisions of a 2016 statute which makes a hearsay exception for victims of child sex abuse.

Application of Rule 4:5(b)(6) to Governmental Entities (Tab 5). Harry Ware presented the Committee’s report, which recommended no action.

Amending Assignments of Error (Tab 6). Steve Emmert, Committee Chair, announced his Committee’s decision not to recommend a rule change specifically allowing amendments to assignments of error. The Committee’s conclusion was that the court already has the power to amend pursuant to Rule 1:8.

Probate Appeal Procedure (Tab 7). This Committee, chaired by Steve Price, considered whether it would be a good idea to have a single probate appeal procedure in which both probate and construction of a will could be considered. The Committee concluded that such a procedure would create as many problems as it would solve. Thus, the Committee did not recommend an amendment to Code § 64.2­445.

Service of Subpoena on Registered Agent of Foreign Entity . Tom Williamson chaired this Committee that studied the recent Supreme Court of Virginia opinion, Yelp, Inc. v. Hadeed Carpet Cleaning, Inc. , 770 S.E.2d 440 (Va. 2015). Yelp held that Virginia courts lack statutory authority to enforce a subpoena seeking production of documents located outside of Virginia, which subpoena was served upon the registered agent of the foreign corporation authorized to do business in Virginia. Two bills were introduced in the 2016 General Assembly session seeking to reverse the majority opinion in Yelp so as to provide Virginia courts with the authority to enforce subpoenas served upon foreign business entities to obtain documents located out of the state. The bills are House Bill No. 175 and Senate Bill No. 172. The Committee recommended supporting both bills with additional language inserted to limit the application of the statutes “to the extent consistent with due process.” After extended discussion, the Conference voted to approve both recommendations.

Update on Va. Code § 20­107.1 – Permitting Life Insurance to be Ordered Post­Divorce (Tab 9). Sandy Havrilak presented the Committee’s report, which included minor revisions to the Committee’s proposal from 2015 as suggested by the Family Law Coalition. This proposal can now go forward.

Virginia’s Medical Records Statute, Va. Code § 8.01­413 (Tab 10). This Committee studied possible amendments to Virginia’s medical records statute specifically in relation to problems created by the emergence of electronic medical records. Wallace Wason presented the Committee’s report. There is a legislative stakeholder group which has been holding monthly meetings on this subject, but has not yet completed its work. The Committee’s report contained 2

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a document containing the latest version of the negotiations between the medical records company and hospital representatives and the VTLA. The Conference voted to endorse the concepts reflected in this document, found at page 188 of the conference materials.

Offer of Judgment (Tab 16). David Harless presented the report of this Committee, which concluded that adoption of a rule analogous to Federal Rule of Civil Procedure 68 would not achieve any useful purpose.

ESI (Tab 12). David Corrigan chaired this Committee and presented the report with a recommended amendment to Rule 4:1(b)(7) to encourage the parties to meet and confer on key aspects of ESI. After extended discussion, the Conference voted to carry the subject over to next year.

Eminent Domain­Pretrial Order (Tab 13). John Walk reported for this Committee, which recommended revising the pretrial scheduling order to make expert disclosures mandatory in eminent domain cases without the necessity of propounding a typical expert interrogatory and several other suggested changes. The Committee’s proposed changes to Rule 1:18 were approved with the language “if requested in discovery” remaining in the proposal.

Code § 8.01­273­Demurrers (Tab 14). This Committee studied the potential inconsistency between case law and Va. Code § 8.01­273(B). Steven Sayers presented the Committee’s report, which addressed the so­called “waiver rule” requiring that when a demurrer is sustained to an amended pleading which does not incorporate or refer to any of the allegations that were set forth in a prior pleading, only the allegations contained in the amended pleading to which the demurrer was sustained will be considered. Code § 8.01­273(B) seems to go the other way. Accordingly, the Committee recommended a change to the code section to permit a plaintiff to challenge the sustaining of the demurrer to the original pleading if the amended pleading incorporates or refers to the earlier pleading. The Committee’s recommendation was approved by consensus.

Rule on Witnesses in Deposition (Tab 15). David Gogal presented the Committee’s report. They studied whether the Virginia rules should be clarified with regard to whether the “rule on witnesses” applies to pretrial depositions and also whether witnesses should be precluded from reading the transcript of a de benne esse deposition. The Committee recommended amendment of Rule 4:5 to exclude adherence to Rule 2:103 and Rule 2:615. The Committee also recommended an amendment to Rule 4:1(c) regarding protective orders, allowing them “to ensure the integrity of the proceeding.” After a lively discussion of these issues, the Conference voted to carry this topic over to next year and possibly expand it.

The Conference recessed for the day.

October 1, 2016

The Chairman called the Conference to order at 9:00 a.m.

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Regulation of Court Reporters (Tab 11). Philip Coulter, Committee Chair, described the current patchwork of regulations, standards and statutes that relate to quality standards for court reporters in Virginia. The Committee recognizes the need to establish uniform standards to further the goal of quality court reporting and a framework or mechanism to enforce such standards. Their conclusion was that this important task exceeds the scope of Boyd­Graves’ ambit and should be handled by a state wide study commission to be appointed by the Chief Justice, which would be comprised of all of the constituencies interested in this subject. The Committee asks that it remain in place to further these worthwhile objectives.

Appeals of Right in Civil Cases in the Court of Appeals (Tab 17). Monica Monday gave this Committee’s report that studied expanding the Virginia Court of Appeals’ jurisdiction to provide a right of appeal in all civil cases. The Committee requested that the matter be carried over to next year to permit additional time for study.

Wrongful Death Beneficiaries (Tab 18). The Committee’s report was presented by Lee Livingston. The Committee studied Code § 8.01­53, which sets out classes of beneficiaries who are entitled to recover damages under the Wrongful Death Act. The Committee recommended amendment of § 8.01­53 to include adopted children and stepchildren as class 1 beneficiaries. After much discussion, it was voted to carry this topic over to next year.

Live Testimony by Video (Tab 19). Frank Hilton chaired this Committee and gave its report. The topic of live testimony by video turned out to be more complicated than the Committee initially thought. The Committee was of the unanimous belief that remote witness testimony will eventually become a fact of modern civil litigation, but requested that the Conference carry this matter over until next year.

Code §§ 8.01­35.1 and 11­10­Release of One Defendant in Legal Malpractice Case Without Releasing Other Co­Defendant (Tab 20). Wyatt Durrette’s Committee studied the attempt to correct the result in Cox v. Geary by the adoption of Code § 8.01­35.1. This issue was initially studied in 2007 by the Conference, which took no action because no problems had yet surfaced. Subsequently, at least one case has arisen in which the application of Code § 8.01­35.1 to legal malpractice cases was an issue. The Committee recommended amending the statute to address legal malpractice cases and carrying over the study to consider whether other changes should be required to address other pitfalls inherent in these situations. The entire topic was carried over to next year.

Property Held by Entireties – Evans v. Evans (Tab 21). Roscoe Stevenson III presented the report of this Committee in which he presented a rousing criticism of the case of Evans v. Evans decided by the Supreme Court of Virginia in 2015. In that case, the Supreme Court of Virginia held that a deed from only one tenant by the entireties to the other tenant by the entireties (his wife) was effective to convey all of the property to wife. The Committee proposed an amendment to Code § 55­20.2 requiring signatures by both spouses in order to convey property held by the entireties. After discussion, the proposal was amended to add at the beginning of proposed Code § 55­20.2(B) the language “except as otherwise provided by law.” And also to

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add the words “a deed” before the words “signed by both spouses as grantors” at the end of the proposed amendment. The proposal, as amended, passed unanimously.

Drone Legislation­HB 878 (Tab 22). Committee Chair, Tracy Walker, presented the report. The Committee was asked by Delegate Albo to study this bill and make recommendations for the 2017 session. The proposed bill is based upon invasion of privacy. But the Committee favored a more narrow provision, which sounded in trespass, not privacy. After discussion, the Conference voted on whether to respond to Delegate Albo by stating that in the opinion of the Boyd­Graves Conference, the proposed legislation is unnecessary. This course of action was approved by consensus. The Conference next considered whether to offer narrower language for consideration by the General Assembly. This proposal failed.

Rule 4:15(d) – Brandon v. Cox (Tab 23). Elizabeth Perrow chaired this Committee and presented its report. In Brandon v. Cox , the Supreme Court of Virginia ruled that upon a motion for reconsideration the party seeking an appeal must show on the record that the court had an opportunity to rule on the issue presented. The Committee’s recommendation involved changes to Rule 4:15(d) requiring that a motion for reconsideration shall be heard orally only if it includes a written certification that the motion presents matters upon which the court has previously had an opportunity to rule. The matter was carried over at the Committee’s request after consultation with appellate lawyers at the Conference.

Domicile and Residency Requirements for Divorce (Tab 24). Laurie Forbes presented the Committee’s report. The issue studied by the Committee was whether the phrase “civilian employees of the United States” as used in several statutes includes foreign service officers. The Committee felt that the inclusion of foreign service officers in this term should be clarified and recommended amendments to § 8.01­328.1 and § 20­97. The proposal was approved by consensus.

Disclosing Liability Limits on Homeowner’s Policies . John McGavin chaired this Committee and gave the report. The Committee recommended proposing an amendment to the code by adding § 8.01­417.01 permitting disclosure of certain homeowner’s insurance and personal injury liability insurance policy limits. Their recommendation follows the amendment in 2015 to the Code permitting disclosure before suit of the limits of liability under an auto insurance policy. The proposal passed by consensus.

Codification of Requirements for Rule to Show Cause . This report was withdrawn and will be carried over.

In his concluding remarks, Chairman Raphael announced that the best report award goes to Tracy Walker for his report on drone legislation. The Chairman further thanked the members of the Conference for their attendance and dedication to the work of the conference.

The Conference was adjourned.

Minutes by Conference Secretary, John A. C. Keith 5

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Tab 3

11 MEMORANDUM To: The Boyd-Graves Conference From: Hamilton Bryson Date: September 11, 2017 Re: Legislative Report We would like to acknowledge and thank Delegate Manoli Loupassi, Delegate Les Adams, Delegate Christopher Collins, Delegate James A. Leftwich, and Delegate Randall Minchew and Senator Jennifer Wexton and Senator Scott Surovell for introducing and supporting our legislative proposals in the General Assembly and David Cotter and Kristen Walsh, of the Virginia Code Commission, and Jeffrey Palmore and his team, for coordinating the legislative efforts of the Virginia Bar Association on behalf of the Boyd-Graves Conference. Without this great team of learned members of the bar, nothing would have happened. I. Successful Proposals for Legislation: A. The proposal relating to requiring life insurance coverage upon a divorce was passed as a new§ 20-107.1:1. (HB2289; SB1081; 2017 Va. Acts, ch. 797) B. The extension of personal jurisdiction of state courts for divorce cases to civilian employees of the federal government working abroad, similar to military personnel, was passed as amendments to§§ 8.01-328.1 and 20-97. (HB1737; 2017 Va. Acts, ch. 480) d. Both parties to a tenancy by the entirety must now be the grantors of a deed separating the tenancy by a new § 55-20.2(B). (HB2050; 2017 Va. Acts, ch. 38) ~· I D. The poliFY limits of personal injury and homeowners' insurance can now be obtained before filing an action under a new § 8.01-417.01. (HB1641; 2017 Va. Acts, ch. 44)

E. Filing ~n :amended pleading following a demurer do~s not I waive objections made to the first pleading for the purposes of an appeal, pursuant.to an atnend:J;Ilent to § 8~01-273(B),

1 (HB1816; 2017 Va. ,Acts, ch. 755) · · , ·.I · , , · ·, I II. Unsuccessful: Proposals for Legislation: i i I The proposal 1 td compel foreign businesses to produce documents ahd information located out of state, SB814, which was in response to the decision in Yelp, Inc. v. Hadeed Carpet Cleaning, Inc. wa:s defeated in the Senate Courts of Justice Committee. III. Successful PrQ'posals for Rules of Court: I I I i . . A. When a condemnor initiates discovery, it is liable only for the reasonable discovery costs of the condemriee. This amendment to Rule 4:1(b)(4)(D) e~imiriates the possibility for abusive· litigation and· discovery practices by condemnees. , . : · ·· I_'

B. Rules 5:24 and 5A: 17 were amended to state the time for filing appeals bonds is not jurisdictional. ' • · · · . ·• ! .• 1 • · •• ·• · I • . . I . :I ' ,,

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il I 12 C. A new Rule 1: 18B was promulgated to provide a sep~.rate Uniform Pretrial Scheduling Order for Use in Eminent Domain Proceedings. IV. Other Matters of Interest:

Rule 1:5 was clarified as to the signing of pleadings and motions by prose litigants and as to the withdrawal of counsel.

13 LIS> Bill Tracking> HB2289 > 2017 session Page 1 of2

HB 2289 Divorce or dissolution of marriage; award of life insurance. another bill? .James A. "Jay" Leftwich I all patrons ... notes I add to my profiles ----·------S'ummm:y as enacted with Governor's Recommendatirm: (all summaries)

Award of life insurance upon divorce or dissolution of marriage. Provides that where an order for spousal support or separate maintenance has been entered by the court, the court may order a party to maintain an existing life insurance policy, designate the other party as beneficiary, allocate the premium cost of life insurance between the parties, and order the insured party to facilitate the provision of certain information from the insurer to the beneficiary. The bill sets out factors to be considered by the court when making such an award and provides that any obligation or requirement under any such court order ceases upon the termination of the party's obligation to pay spousal support or separate maintenance. As introduced, this bill was a recommendation of the Boyd-Graves Conference.

Full text: 01/11/17 House: Presented and ordered printed 171016220 pdf 02/01/17 House: Printed as engrossed 171016220-E pdf 02/15/17 Senate: Committee substitute printed 171 05354D-S I pdf 02/24/17 House: Bill text as passed House and S~nate (HB2289ER) pdf 04/05/17 !louse: Reenrbllr;;d bill text (HB2289ER2) pdf 04/05/17 Governor: Acts of Assembly Chapter text (CHAP0797) pdf

Alne!UI{Jlellfs: 1 House amendments 1 1 :1; I, II' 1 1 ,! ! Governor's recommendatior\'

Status: 01/11/17 House: Presented and ordered printed 1710 1622D I. ': OI/1 1117 House: Ref~rred'to'Cornmittee for Courts of Justice 01/16117 House: Assigned'courts sub: Civil Law 01125/17 House: SubdommHtee recomm~n'ds reporting with amt:mdn1dnt (9~ Y 0-N) 01/27/17 House: Repbrt~d,' trom Coutts of Justi1e with amendment (21-Y' O~N) ·. ' 1 1 01/31/17 Hotise: Read first time • " 11 02/01/17 House: Rehd s~cdnd time ' I I i! : I I I ' ' i 02/01/17 House: 'corrtmittee amendment agreed to' . " 1 :.I I ,'.; 02/01/17 House: Engrossed by House as amended HB2289E 02/01/17 House: Printed as engrossed 1710 1622D-E 02/02/17 House: Read third time and passed House BLOCK VOTE (95-Y 0-N) 02/02/17 House: VOTE: BLOCK VOTE PASSAGE (95-Y 0-N) 02/03/17 Senate: Constitutional reading dispensed 02/03/17 Senate: Referred to Committee for Courts of Justice 02/15/17 Senate: Repmted trom Colllts ofJustice with substitute (12-Y 3-N) 02/15/17 Senate: Committee substitute printed 17105354D-S1 02/17 I 17 Senate: Constitutional reading dispensed (39-Y 0-N) 02/20/17 Senate: Read third time 02/20/17 Senate: Reading of substitute waived 02/20/17 Senate: Committee substitute agreed to 171053540-S 1 02/20/17 Senate: Engrossed by Senate- committee substitute HB2289S 1 02/20/17 Senate: Passed Senate with substitute (36-Y 4-N) 02/21/17 House: Placed on Calendar 02/21117 House: Senat~ substitute agreed to by House 171053540-S1 (96-Y 0-N) 02/21/17 House: VOTE: ADOPTION (96-Y 0-N) 02/24/17 House: Enrolled 02/24/17 House: Bill text as passed House and Senate (HB2289ER) 02/24/17 House: Signed by Speaker I ,,, ' ' I '

I I II 14 http://leg1.state.v~:tis/cgi~bl~legp504.exe?ses=17l&typ=bil&val=hb2289 7/26/2017 Bill Tracking- 2017 session> Legislation Page 1 of6

CHAPTER 797 An Act to amend and reenact§ 20-107.3 ofthe Code of Virginia and to amend the Code of Virginia by adding a section numbered 20-107.1: 1. relating to award oflife insurance upon divorce or dissolution ofmarriage. [H 2289] Approved April 5, 2017

Be it enacted by the General Assembly of Virginia:

1. That§ 20-107.3 of the Code of Virginia is amended and reenacted and that the Code of Virginia is amended by adding a section numbered 20-107.1:1 as follows:

§ 20-107.1: 1. Court may decree as to maintenance oflife insurance policy.

A. Upon entry ofa decree providing for (i) the dissolution ofa marriage, (ii) a divorce, whether from the bond of matrimony or from bed and board, or (iii) separate maintenance, where an order for spousal support or separate maintenance has been entered by the court, the court may order a party to (a) maintain any existing life insurance policy on the insured party's life that was purchased during the marriage, is issued through the insured's employment, or is within effective control ofthe insured, provided that the party so ordered has the right to designate a beneficiary and that the payee has been designated as a beneficiary ofsuch policy during the marriage and the payee is a party with an insurable interest pursuant to subsection Bof§ 38.2-301; (b) designate the other party as beneficiary ofall or a portion ofthe death benefit ofsuch life insurance for so long as the insured party so ordered has an obligation to pay spousal supportto the other party, provided that the party so ordered has the right to designate a beneficiary and that the payee has been designated as a beneficiary ofsuch policy during the marriage and the payee is a party with an insurable interest pursuant to subsection B of§ 38.2-301 in accordance with the terms ofthe policy; (c) allocate the premium cost ofsuch life insurance between the parties, provided that all premiums shall be billed to the policyholder; and (d) order the insured party to execute all appropriate forms or written consents to require the insurer to provide information to the party beneficiary as to the good standing of the policy and the maintenance ofthat party as beneficiary to the extent required by the order entered pursuant to this section. Any obligation or requirement under such an order shall cease upon the termination ofthe party's obligation to pay spousal support or separate maintenance.

B. In making a determination under subsection A, the court shall consider:

1. The age, health, and insurability ofthe insured party;

2. The age and health ofthe payee spouse;

3. The cost ofthe life insurance policy;

4. The amount and term ofthe award ofspousal support or separate maintenance;

5. The prevailing insurance rates at the time ofthe order;

6. The ability ofeither spouse to pay the premium cost ofthe life insurance; and

7. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair order.

C. Upon motion ofeither party, any order entered pursuant to this section may be modified upon a material change ofcircumstances, including a change in marital status ofthe payor spouse, and in consideration ofthe factors set forth in subsection B. This provision shall not permit the change in marital status ofthe payor spouse to be considered as a factor under§ 20-107.1 or considered a material change in circumstances in any proceeding related to the modification ofspousal support.

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D. Nothing in this section shall be construed to create an independent cause of action on the part ofany beneficiary against the insurer or to require an insurer to provide information relating to such policy to any person other than the policyholder without the written consent ofthe policyholder or unless ordered by the court.

E. Nothing in this section shall be construed to require an insurance company to renew or reinstate any insurance policy other than as provided in such insurance policy.

F. In the event a group policy issued by an employer that is subject to a court order pursuant to this section is terminated or canceled by the employer or there is an involuntary change in employment by the payor causing the policy to no longer be in effect, such circumstances shall not be the basis ofany finding ofcontempt against the payor arising out ofan order entered pursuant to this section.

G. This section shall not apply to any second to die insurance policies on the lives of the payor and payee.

H In the case ofa term life insurance policy that has the ability to convert to a permanent policy, the court shall not impose an obligation to pay for such a conversion.

§ 20-107.3. Court may decree as to property and debts of the parties.

A. Upon decreeing the dissolution of a marriage, and also upon decreeing a divorce from the bond of matrimony, or upon the filing with the court as provided in subsection J of a certified copy of a final divorce decree obtained without the Commonwealth, the court, upon request of either party, (i) shall determine the legal title as between the parties, and the ownership and value of all property, real or personal, tangible or intangible, of the parties and shall consider which of such property is separate property, which is marital property, and which is part separate and part marital property in accordance with subdivision A 3 and (ii) shall determine the nature of all debts of the parties, or either of them, and shall consider which of such debts is separate debt and which is marital debt. The court shall determine the value of any such property as of the date of the evidentiary hearing on the evaluation issue. The court shall determine the amount of any such debt as of the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, and the extent to which such debt has increased or decreased from the date of separation until the date of the evidentiary hearing. Upon motion of either party made no less than 21 days before the evidentiary hearing the court may, for good cause shown, in order to attain the ends of justice, order that a different valuation date be used. The court, on the motion of either party, may retain jurisdiction in the final decree of divorce to adjudicate the remedy provided by this section when the court determines that such action is clearly necessary, and all decrees heretofore entered retaining such jurisdiction are validated.

1. Separate property is (i) all property, real and personal, acquired by either party before the marriage; (ii) all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party; (iii) all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and (iv) that part of any property classified as separate pursuant to subdivision A 3. Income received from separate property during the marriage is separate property if not attributable to the personal effort of either party. The increase in value of separate property during the marriage is separate property, unless marital property or the personal efforts of either party have contributed to such increases and then only to the extent of the increases in value attributable to such contributions. The personal efforts of either party must be significant and result in substantial appreciation of the separate property if any increase in value attributable thereto is to be considered marital property.

2. Marital property is (i) all property titled in the names of both parties, whether as joint tenants, tenants by the entirety or otherwise, except as provided by subdivision A 3, (ii) that part of any property classified as marital pursuant to subdivision A 3, or (iii) all other property acquired by each party during the marriage which is not separate property as defined above. All property including that portion of pensions, profit-sharing or deferred compensation or retirement plans of whatever nature, acquired by either spouse during the marriage, and before the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, is presumed to be marital property in the absence of satisfactory evidence that it is separate property. For purposes of this section marital property is presumed to be jointly owned unless there is a deed, title or other clear indicia that it is not jointly owned.

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3. The court shall classifY property as part marital property and part separate property as follows:

. a. In the case of income received from separate property during the marriage, such income shall be marital property only to the extent it is attributable to the personal efforts of either party. In the case of the increase in value of separate property during the marriage, such increase in value shall be marital property only to the extent that marital property or the personal efforts of either party have contributed to such increases, provided that any such personal efforts must be significant and result in substantial appreciation of the separate property.

For purposes of this subdivision, the nonowning spouse shall bear the burden of proving that (i) contributions of marital property or personal effort were made and (ii) the separate property increased in value. Once this burden of proof is met, the owning spouse shall bear the burden of proving that the increase in value or some portion thereof was not caused by contributions of marital property or personal effort.

"Personal effort" of a party shall be deemed to be labor, effort, inventiveness, physical or intellectual skill, creativity, or managerial, promotional or marketing activity applied directly to the separate property of either party.

b. In the case of any pension, profit-sharing, or deferred compensation plan or retirement benefit, the marital share as defined in subsection G shall be marital property.

c. In the case of any personal injury or workers' compensation recovery of either party, the marital share as defined in subsection H shall be marital property.

d. When marital property and separate property are commingled by contributing one category of property to another, resulting in the loss of identity of the contributed property, the classification of the contributed property shall be transmuted to the category of property receiving the contribution. However, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, such contributed property shall retain its original classification.

e. When marital property and separate property are commingled into newly acquired property resulting in the loss of identity of the contributing properties, the commingled property shall be deemed transmuted to marital property. However, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, the contributed property shall retain its original classification.

f. When separate property is retitled in the joint names of the parties, the retitled property shall be deemed transmuted to marital property. However, to the extent the property is retraceable by a preponderance of the evidence and was not a gift, the retitled property shall retain its original classification.

g. When the separate property of one party is commingled into the separate property of the other party, or the separate property of each party is commingled into newly acquired property, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, each party shall be reimbursed the value of the contributed property in any award made pursuant to this section.

h. Subdivisions A 3 d, e and f shall apply to jointly owned property. No presumption of gift shall arise under this section where (i) separate property is commingled with jointly owned property; (ii) newly acquired property is conveyed into joint ownership; or (iii) existing property is conveyed or retitled into joint ownership. For purposes of this subdivision A 3, property is jointly owned when it 'is titled in the name of both parties, whether as joint tenants, tenants by the entireties, or otherwise.

4. Separate debt is (i) all debt incurred by either party before the marriage, (ii) all debt incurred by either party after the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, and (iii) that part of any debt classified as separate pursuant to subdivision A 5. However, to the extent that a party can show by a preponderance of the evidence that the debt was incurred for the benefit of the marriage or family, the court may designate the debt as marital.

5. Marital debt is (i) all debt incurred in the joint names of the parties before the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, whether incurred before or after the date of the marriage, and (ii) all debt incurred in either party's name after the date of the

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marriage and before the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent. However, to the extent that a party can show by a preponderance of the evidence that the debt, or a portion thereof, was incurred, or the proceeds secured by incurring the debt were used, in whole or in part, for a nonmarital purpose, the court may designate the entire debt as separate or a portion of the debt as marital and a portion of the debt as separate.

B. For the purposes of this section only, both parties shall be deemed to have rights and interests in the marital property. However, such interests and rights shall not attach to the legal title of such property and are only to be used as a consideration in determining a monetary award, if any, as provided in this section.

C. Except as provided in subsection G, the court shall have no authority to order the division or transfer of separate property or marital property, or separate or marital debt, which is not jointly owned or owed. However, upon a finding that separate property of one party is in the possession or control of the other party, the court may order that the property be transferred to the party whose separate property it is. The court may, based upon the factors listed in subsection E, divide or transfer or order the division or transfer, or both, of jointly owned marital property, jointly owed marital debt, or any part thereof. The court shall also have the authority to apportion and order the payment of the debts of the parties, or either of them, that are incurred prior to the dissolution of the marriage, based upon the factors listed in subsection E.

As a means of dividing or transferring the jointly owned marital property, the court may transfer or order the transfer of real or personal property or any interest therein to one of the parties, permit either party to purchase the interest of the other and direct the allocation of the proceeds, provided the party purchasing the interest of the other agrees to assume any indebtedness secured by the property, or order its sale by private sale by the parties, through such agent as the court shall direct, or by public sale as the court shall direct without the necessity for partition. All decrees entered prior to July 1, 1991, which are final and not subject to further proceedings on appeal as of that date, which divide or transfer or order the division or transfer of property directly between the parties are hereby validated and deemed self-executing. All orders or decrees which divide or transfer or order division or transfer of real property between the parties shall be recorded and indexed in the names of the parties in the appropriate grantor and grantee indexes in the land records in the clerk's office of the circuit court of the county or city in which the property is located.

D. In addition, based upon (i) the equities and the rights and interests of each party in the marital property, and (ii) the factors listed in subsection E, the court has the power to grant a monetary award, payable either in a lump sum or over a period of time in fixed amounts, to either party. The party against whom a monetary award is made may satisfy the award, in whole or in part, by conveyance of property, subject to the approval of the court. An award entered pursuant to this subsection shall constitute a judgment within the meaning of§ 8.01-426 and shall not be docketed by the clerk unless the decree so directs. An award entered pursuant to this subsection may be enforceable in the same manner as any other money judgment. The provisions of§ 8.01-382, relating to interest on judgments, shall apply unless the court orders otherwise.

Any marital property, which has been considered or ordered transferred in granting the monetary award under this section, shall not thereafter be the subject of a suit between the same parties to transfer title or possession of such property.

E. The amount of any division or transfer of jointly owned marital property, and the amount of any monetary award, the apportionment of marital debts, and the method of payment shall be determined by the court after consideration of the following factors:

1. The contributions, monetary and nonmonetary, of each party to the well-being of the family;

2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;

3. The duration of the marriage;

4. The ages and physical and mental condition of the parties;

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5. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivision A (1), (3) or (6) of§ 20-91 or§ 20-95;

6. How and when specific items of such marital property were acquired;

7. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;

8. The liquid or nonliquid character of all marital property;

9. The tax consequences to each party;

10. The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and

11. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.

F. The court shall determine the amount of any such monetary award without regard to maintenance and support awarded for either party or support for the minor children of both parties and shall, after or at the time of such determination and upon motion of either party, consider whether an order for support and maintenance of a spouse or children shall be entered or, if previously entered, whether such order shall be modified or vacated.

G. In addition to the monetary award made pursuant to subsection D, and upon consideration of the factors set forth in subsection E:

1. The court may direct payment of a percentage of the marital share of any pension, profit -sharing or deferred compensation plan or retirement benefits, whether vested or nonvested, which constitutes marital property and whether payable in a lump sum or over a period of time. The court may order direct payment of such percentage of the marital share by direct assignment to a party from the employer trustee, plan administrator or other holder of the benefits. However, the court shall only direct that payment be made as such benefits are payable. No such payment shall exceed 50 percent of the marital share of the cash benefits actually received by the party against whom such award is made. "Marital share" means that portion of the total interest, the right to which was earned during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent.

2. To the extent permitted by federal or other applicable law, the court may order a party to designate a spouse or former spouse as irrevocable beneficiary during the lifetime of the beneficiary of all or a portion of any survivor benefit or annuity plan of whatsoever nature, but not to include a life insurance policy except to the extent permitted by § 20-1 o7.1: 1. The court, in its discretion, shall determine as between the parties, who shall bear the costs of maintaining such plan.

H. In addition to the monetary award made pursuant to subsection D, and upon consideration of the factors set forth in subsection E, the court may direct payment of a percentage of the marital share of any personal injury or workers' compensation recovery of either party, whether such recovery is payable in a lump sum or over a period of time. However, the court shall only direct that payment be made as such recovery is payable, whether by settlement, jury award, court award, or otherwise. "Marital share" means that part of the total personal injury or workers' compensation recovery attributable to lost wages or medical expenses to the extent not covered by health insurance accruing during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent.

I. Nothing in this section shall be construed to prevent the affirmation, ratification and incorporation in a decree of an agreement between the parties pursuant to§§ 20-109 and 20-109.1. Agreements, otherwise valid as contracts, entered into between spouses prior to the marriage shall be recognized and enforceable.

J. A court of proper jurisdiction under § 20-96 may exercise the powers conferred by this section after a court of a foreign jurisdiction has decreed a dissolution of a marriage or a divorce from the bond of matrimony, if (i) one of the 19 httn://leQ l.state. va. us/c2"i-bin/le2"n504.exe? 171 +ful+CH A P0797 7/?()/?017 Bill Tracking- 2017 session> Legislation Page 6 of6

parties was domiciled in this Commonwealth when the foreign proceedings were commenced, (ii) the foreign court did not have personal jurisdiction over the party domiciled in the Commonwealth, (iii) the proceeding is initiated within two years of receipt of notice ofthe foreign decree by the party domiciled in the Commonwealth, and (iv) the court obtains personal jurisdiction over the parties pursuant to subdivision A 9 of§ 8.01-328.1, or in any other manner permitted by law.

K. The court shall have the continuing authority and jurisdiction to make any additional orders necessary to effectuate and enforce any order entered pursuant to this section, including the authority to:

1. Order a date certain for transfer or division of any jointly owned property under subsection C or payment of any monetary award under subsection D;

2. Punish as contempt of court any willful failure of a party to comply with the provisions of any order made by the court under this section;

3. Appoint a special commissioner to transfer any property under subsection C where a party refuses to comply with the order of the court to transfer such property; and

4. ModifY any order entered in a case filed on or after July 1, 1982, intended to affect or divide any pension, profit­ sharing or deferred compensation plan or retirement benefits pursuant to the United States Internal Revenue Code or other applicable federal laws, only for the purpose of establishing or maintaining the order as a qualified domestic relations order or to revise or conform its terms so as to effectuate the expressed intent of the order.

L. If it appears upon or after the entry of a final decree of divorce from the bond of matrimony that neither party resides in the city or county of the circuit court that entered the decree, the court may, on the motion of any party or on its own motion, transfer to the circuit court for the city or county where either party resides the authority to make additional orders pursuant to subsection K or to carry out or enforce any stipulation, contract, or agreement between the parties that has been affirmed, ratified, and incorporated by reference pursuant to§ 20-109.1.

Legislative Information System

20 htto://legl.state.va.us/cgi-bin/lego504.exe?l7l+ful+CHAP0797 7/2()0017 LIS> Bill Tracking> HB1737 >2017 session Page 1 of 1

HB 1737 Civilian employees and foreign service officers; personal another bill? jurisdic~ion over a person, domicile, etc. Christopher E. Collins I all patrons ... notes I add to my profiles

Summary as introduced: Personal jurisdiction over a person; domicile and residential requirements for suits for annulment, affirmance, or divorce; civilian employees and foreign service officers. Extends to all civilian employees of the United States, where current law applies to foreign service officers, certain requirements for a court to exercise personal jurisdiction over a person stationed in a territory or foreign country and establishing domicile in the Commonwealth for the purposes of an annulment, affirmance, or divorce. This bill is a recommendation of the Boyd-Graves Conference.

Full text: 01/07/17 House: Prefiled and ordered printed; offered 01/11117 171003860 pdf 02/23/17 House: Bill text as passed House and Senate (HB 1737ER) pdf 03/13/17 Governor: Acts of Assembly Chapter text (CHAP0480) pdf

Status: 01107117 House: Prefiled and ordered printed; offered 01111117 171003860 01107/17 House: Referred to Committee for Courts of Justice 01/13/17 House: Assigned Courts sub: Civil Law 01/23/17 House: Subcommittee recommends reporting (8-Y 0-N) 01127117 House: Reported from Courts ofJustice (21-Y 0-N) 01131117 House: Read first time 02/01/17 House: Read second time 02/01117 House: Passed by temporarily 02/01117 House: Engrossed by House 02/02/17 House: Read third time and passed House BLOCK VOTE (95-Y 0-N) 02/02/17 House: VOTE: BLOCK VOTE PASSAGE (95-Y O~N) 02/03/17 Senate: Constitutional reading dispensed 02/03/17 Senate: Referred to Committee for Courts of Justice 02/15/17 Senate: Reported from Courts of Justice (15-Y 0-N) 02/17117 Senate: Constitutional reading dispensed (39-Y 0-N) 02/20/17 Senate: Read third time 02/20/17 Senate: Passed Senate (3 9-Y o~ N) 02/20/17 Senate: Reconsideration of Senate passage agreed to by Senate ( 40-Y 0-N) 02/20/17 Senate: Passed Senate ( 40-Y 0-N) 02/23/17 House: Enrolled 02/23117 House: Bill text as passed House and Senate (HB 1737ER) 02/23/17 House: Signed by Speaker 02/24/17 Senate: Signed by President 02/28/17 House: Enrolled Bill communicated to Governor on 2/28/17 02/28/17 Governor: Governor's Action Deadline Midnight, March 27, 2017 03/13117 Governor: Approved by Governor-Chapter 480 (effective 7/1117) 03/13/17 Governor: Acts of Assembly Chapter text (CHAP0480)

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CHAPTER480 An Act to amend and reenact§§ 8.01-328.1 and 20-97 ofthe Code of Virginia, relating to personal jurisdiction over a person; domicile and residential requirements for suits for annulment, affirmance, or divorce; civilian employees and foreign service officers. [H 1737] Approved March 13,2017

Be it enacted by the General Assembly of Virginia:

1. That§§ 8.01-328.1 and 20-97 of the Code of Virginia are amended and reenacted as follows:

§ 8.01-328.1. When personal jurisdiction over person may be exercised.

A. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person's:

1. Transacting any business in this Commonwealth;

2. Contracting to supply services or things in this Commonwealth;

3. Causing tortious injury by an act or omission in this Commonwealth;

4. Causing tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth;

5. Causing injury in this Commonwealth to any person by breach of warranty expressly or impliedly made in the sale of goods outside this Commonwealth when he might reasonably have expected such person to use, consume, or be affected by the goods in this Commonwealth, provided that he also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this Commonwealth;

6. Having an interest in, using, or possessing real property in this Commonwealth;

7. Contracting to insure any person, property, or risk located within this Commonwealth at the time of contracting;

8. Having (i) executed an agreement in this Commonwealth which obligates the person to pay spousal support or child support to a domiciliary of this Commonwealth, or to a person who has satisfied the residency requirements in suits for annulments or divorce for members of the armed forces or foreign service officers civilian employees of the United States, including foreign service officers, pursuant to § 20-97. provided that proof of service of process on a nonresident party is made by a law-enforcement officer or other person authorized to serve process in the jurisdiction where the nonresident party is located,; (ii) been ordered to pay spousal support or child support pursuant to an order entered by any court of competent jurisdiction in this Commonwealth having in personam jurisdiction over such person,; or (iii) shown by personal conduct in this Commonwealth, as alleged by affidavit, that the person conceived or fathered a child in this Commonwealth;

9. Having maintained within this Commonwealth a matrimonial domicile at the time of separation of the parties upon which grounds for divorce or separate maintenance is based, or at the time a cause of action arose for divorce or separate maintenance or at the time of commencement of such suit, if the other party to the matrimonial relationship resides herein; or

10. Having incurred a liability for taxes, fines, penalties, interest, or other charges to any political subdivision of the Commonwealth.

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Jurisdiction in subdivision 9 is valid only upon proof of service of process pursuant to § 8.01-296 on the nonresident party by a person authorized under the provisions of§ 8.01-320. Jurisdiction under clause (iii) ofsubdivision 8-fiii1 of this subsection is valid only upon proof of personal service on a nonresident pursuant to§ 8.01-320.

B. Using a computer or computer network located in the Commonwealth shall constitute an act in the Commonwealth. For purposes of this subsection, "use" and "computer network" shall have the same meanings as those contained in§ 18.2-152.2.

C. When jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him; however, nothing contained in this chapter shall limit, restrict, or otherwise affect the jurisdiction of any court of this Commonwealth over foreign corporations-whie:h that are subject to service of process pursuant to the provisions of any other statute.

§ 20-97. Domicile and residential requirements for suits for annulment, affirmance, or divorce.

No suit for annulling a marriage or for divorce shall be maintainable, unless one of the parties was at the time of the filing of the suit and had been for at least six months preceding the filing of the suit an actual bona fide resident and domiciliary of this Commonwealth, nor shall any suit for affirming a marriage be maintainable, unless one of the parties be domiciled in, and is and has been an actual bona fide resident of, this Commonwealth at the time of filing such suit.

For the purposes of this section only:

1. If a member of the armed forces of the United States has been stationed or resided in this Commonwealth and has lived for a period of six months or more in this Commonwealth next preceding the filing of the suit, then such person shall be presumed to be domiciled in and to have been a bona fide resident of this Commonwealth during such period of time.

2. Being stationed or residing in the Commonwealth includes, but is not limited to, a member of the armed forces being stationed or residing upon a ship having its home port in this Commonwealth or at an air, naval, or military base located within this Commonwealth over which the United States enjoys exclusive federal jurisdiction.

3. Any member of the armed forces of the United States or any foreign service officer civilian employee of the United States, including any foreign service officer, who (i) at the time the suit is filed is, or immediately preceding such suit was, stationed in any territory or foreign country and (ii) was domiciled in the Commonwealth for the six­ month period immediately preceding his being stationed in such territory or country, shall be deemed to have been domiciled in and to have been a bona fide resident of the Commonwealth during the six months preceding the filing of a suit for annulment or divorce.

4. Upon separation of the husband and wife, the wife may establish her own and separate domicile, though the separation may have been caused under such circumstances as would entitle the wife to a divorce or annulment.

Legislative Information System

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HB 2050 Tenancy; severance by the entireties by written instrument. another bill? Les R. Adams I all patrons. ... notes I add to my profiles

Summary as passed House: (all summaries)

Severance of tenancy by the entireties by written instrument. Clarifies that a husband and wife may own real or personal property as tenants by the entirety for as long as they are married. The bill provides that, in order to sever a tenancy by the entireties by written instrument, the instrument must be a deed that is signed by both spouses as grantors of the property. This bill is in response to Evans v. Evans, Record No. 141277, 772 S.E.2d 576, 2015 Va. LEXIS 84 (20 15), and, as introduced, was a recommendation of the Boyd-Graves Conference.

Full text: 01110/17 House: Prefiled and ordered printed; offered 01111117 171007220 pdf 01125/17 House: Printed as engrossed 171007220-E pdf 02/10/17 House: Bill text as passed House and Senate (HB2050ER) pdf 02/17/17 Governor: Acts of Assembly Chapter text (CHAP0038) pdf

Amendments: House amendments

Status: 01110/17 House: Prefiled and ordered printed; offered 01111117 171007220 01110/17 House': Referred to Committee for Courts of Justice 01/16117 House: Assigned Courts sub: Civil Law 01118117 House: Subcommittee recommends reporting with amendment (9-Y 0-N) 01/20/17 House: Reported from Courts of Justice with amendment (21-Y 0-N) 01124117 House: Read first time 01125117 House: Read second time 01125117 House: Committee amendment agreed to 01125/17 House: Engrossed by House as amended HB2050E 01125/17 House: Printed as engrossed 171007220-E 01126/17 House: Read third time and passed House BLOCK VOTE (99-Y 0-N) 01126/17 House: VOTE: BLOCK VOTE PASSAGE (99-Y 0-N) 01127/17 Senate: Constitutional reading dispensed 01/27/17 Senate: Referred to Committee for Courts of Justice 02/06/17 Senate: Reported from Courts of Justice (13-Y 0-N) 02/07/17 Senate: Constitutional reading dispensed ( 40-Y 0-N) 02/08/17 Senate: Read third time 02/08/17 Senate: Passed Senate (39-Y 0-N) 02/10/17 House: Enrolled 02/10/17 House: Bill text as passed House and Senate (HB2050ER) 02/10/17 House: Signed by Speaker 02/13/17 Senate: Signed, by President 02/13/17 House: Enrolled Bill communicated to Governor on 2/13/17 02/13117 Governor: Governor's Action Deadline Midnight, February 20, 2017 02/17/17 Governor: Approved by Governor-Chapter 38 (effective 7 /1117) 02117/17 Governor: Acts of Assembly Chapter text (CHAP0038)

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CHAPTER38 An Act to amend and reenact§ 55-20.2 ofthe Code of Virginia, relating to severance oftenancy by the entireties by written instrument. [H 2050] Approved February 17, 20 17

Be it enacted by the General AssemblyofVirginia:

1. That§ 55-20.2 of the Code of Virginia is amended and reenacted as follows:

§ 55-20.2. Tenants by the entireties in real and personal property; certain trusts.

A. Any husband and wife may own real or personal property as tenants by the entireties for as long as they are married. Personal property may be owned as tenants by the entireties whether or not the personal property represents the proceeds of the sale of real property. An intent that the part of the one dying should belong to the other shall be manifest from a designation of a husband and wife as "tenants by the entireties" or "tenants by the entirety."

B. Except as otherwise provided by statute, no interest in real property held as tenants by the entireties shall be severed by written instrument unless the instrument is a deed signed by both spouses as grantors.

C. Notwithstanding any contrary provision of§ 64.2-747, any property of a husband and wife that is held by them as tenants by the entireties and conveyed to their joint revocable' or irrevocable trusts, or to their separate revocable or irrevocable trusts, and any proceeds of the sale or disposition of such property, shall have the same immunity from the claims of their separate creditors as it would if it had remained a tenancy by the entirety, so long as (i) they remain husband and wife, (ii) it continues to be held in the trust or trusts, and (iii) it continues to be their property, including where both spouses are current beneficiaries of one trust that holds the entire property or each spouse is a current beneficiary of a separate trust and the two separate trusts together hold the entire property, whether or not other persons are also current or future beneficiaries of the trust or trusts. The immunity from the claims of separate creditors under this subsection may be waived as to any specific creditor, including any separate creditor of either spouse, or any specifically described property, including any former tenancy by the entireties property conveyed into trust, by the trustee acting under the express provision of a trust instrument or with the written consent of both the husband and the wife.

Legislative Information System

25 httn://leQ"l.state.va.us/cQ"i-hin/leim504.exe?171 +ful+CHA POO"iR 7/?()/?017 LIS> Bill Tracking> HB1641 > 2017 session Page 1 of 1

HB 1641 Insurance policy limits; disclosure, homeowners or personal injury another bill? liability insurance. G. Manoli Loupassi I all patrons ... notes I add to my profiles

Summary as introduced:

Disclosure of insurance policy limits; homeowners or personal injury liability insurance; personal injury and wrongful death actions. Allows an injured person, the personal representative of a decedent, or an attorney representing either to request the disclosure of the liability limits of a homeowners insurance policy or personal injury liability insurance policy prior to filing a civil action for personal injuries or wrongful death from injuries sustained at the residence of another person. The party requesting this information shall provide the insurer with (i) the date the injury was sustained; (ii) the address of the residence at which the injury was sustained; (iii) the name of the owner of the residence; (iv) the claim number, if available; (v) for personal injury actions, the injured person's medical records, medical bills, and wage-loss documentation pertaining to the injury; and (vi) for wrongful death actions, (a) the decedent's death certificate; (b) the certificate of qualification of the personal representative of the decedent's estate; (c) the names and relationships of the statutory beneficiaries of the decedent; (d) medical bills, if any; and (e) a description of the source, amount, and payment history of the claimed income loss for each beneficiary. The bill provides that in personal injury actions, the insurer only has to disclose liability limits if the amount of the injured person's medical bills and wage lossesequals or exceeds $12,500. The bill also provides that disclosure of a policy's limits shall not constitute an admission that the alleged injury is subject to the policy. This bill is a recommendation of the Boyd-Graves Conference.

Full text: 01104/17 House: Prefiled and ordered printed; offered 01111117 171 00466D pdf 02/10/17 House: Bill text as passed House and Senate (HB1641ER) pdf 02/17/17 Governor: Acts of Assembly Chapter text (CHAP0044) pdf

Status: 01104/17 House: Prefiled and ordered printed; offered 01/11117 17100466D 01/04/17 House: Referred to Committee for Courts of Justice 01/13/17 House: Assigned Courts sub: Civil Law 01118/17 House: Subcommittee recommends reporting (9-Y 0-N) 01/20/17 House: Reported from Courts of Justice (21-Y 0-N) 01/24/17 House: Read first time 01/25/17 House: Read second time and engrossed . 01/26/17 House: Read third time and passed House BLOCK VOTE (99-Y 0-N) 01/26/17 House: VOTE: BLOCK VOTE PASSAGE (99-Y 0-N) 01/27/17 Senate: Constitutional reading dispensed 01/27117 Senate: Referred to Committee for Courts of Justice 02/06/17 Senate: Reported from Courts ofJustice (15-Y 0-N) 02/0711 T Senate: Constitutional reading dispensed ( 40-Y 0-N) 02/08/17 Senate: Read third time 02/08/17 Senate: Passed Senate (39-Y 0-N) 02110117 House: Enrolled 02/10/17 House: Bill text as passed House and Senate (HB 1641ER) 02/10/17 House: Signed by Speaker 02/13/17 Senate: Signed by President 02/13/17 House: Enrolled Bill communicated to Governor on 2/13/17 02/13/17 Governor: Governor's Action Deadline Midnight, February 20, 2017 02/17117 Governor: Approved by Governor-Chapter 44 (effective 7 /1/17) 02/17117 Governor: Acts of Assembly Ghapter text (CHAP0044)

26 httn://le~:!l.state.va.us/c2:i-bin/le2:n504.exe?ses=171 &tvn=h1l&val=hh 1641 7/?n/?017 Bill Tracking- 2017 session> Legislation Page 1 of2

CHAPTER44 An Act to amend the Code of Virginia by adding a section numbered 8.01-417.01. relating to disclosure of homeowners insurance or personal injury liability insurance policy limits; personal injury and wrongful death actions. [H 1641] Approved February 17,2017

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding a section numbered 8.01-417.01 as follows:

§ 8.01-417.01. Disclosure ofcertain homeowners insurance and personal injury liability insurance policy limits.

A. After written notice ofrepresentation by an attorney ofan individual injured at the residence ofanother, such attorney, or an individual injured at the residence ofanother ifsuch individual is not represented by counsel, may, prior to the filing ofa civil action for personal injuries sustained at the residence ofanother, request in writing that the insurer ofthe residence disclose the limits ofliability ofany homeowners insurance policy or any personal injury liability insurance policy that may be applicable to the claim. The requesting party shall provide the insurer with the date the injury was sustained; the address ofthe residence at which the injury was sustained; the name of the owner ofthe residence; and the claim number, ifavailable. The requesting party shall also submit to the insurer the injured person's medical records, medical bills, and wage-loss documentation, if applicable, pertaining to the claimed injury. Ifthe total ofthe medical bills and wage losses submitted equals or exceeds $12,500, the insurer shall 1'respond in writing within 30 days ofreceipt ofthe request and shall disclose the limits ofliability at the time the injury was sustained ofall such policies, regardless ofwhether the insurer contests the applicability ofthe policy to the injured person's claim. Disclosure ofthe policy limits under this section shall not constitute an admission that the alleged injury or damage is subject to the policy. Information concerning the insurance policy is not by reason ofdisclosure pursuant to this subsection admissible as evidence at trial.

B. After written notice ofrepresentation by an attorney ofthe personal representative ofthe estate ofa decedent who died as a result ofan injury sustained at the residence ofanother, such attorney, or the personal representative of the estate ofa decedent who died as a result ofan injury sustained at the residence ofanother ifsuch personal representative is not represented by counsel, may, prior to the filing ofa civil action for wrongful death as a result ofan injury sustained at the residence ofanother, request in writing that the insurer· ofthe residence disclose the limits ofliability ofany homeowners insurance policy or any personal injury liability insurance policy that may be applicable to the claim. The requesting party shall provide the insurer with the date the injury was sustained; the address ofthe residence at which the injury was sustained; the name of the owner ofthe residence; and the claim number, ifavailable. The requesting party shall also submit to the insurer the death certificate ofthe decedent; the certificate ofqualification ofthe personal representative ofthe decedent's estate; the names and relationships of the statutory beneficiaries of the decedent; medical bills, if any, supporting a claim for damages under subdivision 3 of § 8.01-52; and, if at the time the request is made a claim for damages under clause (i) ofsubdivision 2 of§ 8.01-52 is anticipated, a description of the source, amount, and payment history ofthe claimed income loss for each beneficiary. The insurer shall respond in writing within 30 days ofreceipt ofthe request and shall disclose the limits ofliability at the time the injury was sustained ofall such policies, regardless ofwhether the insurer contests the applicability ofthe policy to the personal representative's claim. Disclosure of the policy limits under this section shall not constitute an admission that the alleged death or other damage is subject to the policy. Information concerning the insurance policy is not by reason ofdisclosure pursuant to this subsection admissible as evidence at trial.

C. As used in subsections A and B, "insurer" does not include the insurance agency or the insurance agent representing the homeowner as the authorized representative or agent with respect to any homeowners insurance policy or any personal injury liability insurance policy.

27 http://leg1.state.va.us/cgi-bin/legp504.exe?171 +ful+CHAP0044 7/26/2017 LIS> Bill Tracking> HB1816 > 2017 session Page 1 of 1

HB 1816 Demurrers; amended pleadings. another bill? J. Randall Minchew I all patrons ... notes I add to my profiles

Summary as introduced: Demurrers; amended pleadings. Requires that an amended pleading filed after a demurrer to an earlier pleading has been sustained incorporate or refer to the earlier pleading being amended in order to preserve the right to stand on the earlier pleading. This bill is a recommendation of the Boyd-Graves Conference.

Full text: 01/09117 House: Prefiled and ordered printed; offered 01111117 17100721D pdf 02/23/17 House: Bill text as passed House and Senate (HB 1816ER) pdf 03/24/17 Governor: Acts of Assembly Chapter text (CHAP0755) pdf

Status: 01109117 House: Prefiled and ordered printed; offered 01111/17 17100721D 01/09/17 House: Referred to Committee for Courts of Justice 01116117 House: Assigned Courts sub: Civil Law 01/18/17 House: Subcommittee recommends reporting (9-Y 0-N) 01/20/17 House: Reported from Courts of Justice (21-Y 0-N) 01/24117 House: Read first time 01/25/17 House: Read second time and engrossed 01126117 House: Read third time and passed House BLOCK VOTE (99-Y 0-N) 01/26/17 House: VOTE: BLOCK VOTE PASSAGE (99-Y 0-N) 01127/17 Senate: Constitutional reading dispensed 0 I /27117 Senate: Referred to Committee for Courts of Justice 02/15/17 Senate: Reported from Courts of Justice (15-Y 0-N) 02/17117 Senate: Constitutional reading dispensed (39-Y 0-N) 02/20/17 Senate: Read third time 02/20/17 Senate: Passed Senate (39-Y 0-N) 02/20/17 Senate: Reconsideration of Senate passage agreed to by Senate ( 40-Y 0-N) 02/20/17 Senate: Passed Senate (40-Y 0-N) 02/23/17 House: Enrolled 02/23/17 House: Bill text as passed House and Senate (HB 1816ER) 02/23/17 House: Signed by Speaker 02/24117 Senate: Signed by President 02/28117 House: Enrolled Bill communicated to Governor on 2/28117 02/28/17 Governor: Governor's Action Deadline Midnight, March 27, 2017 03/24/17 Governor: Approved by Governor-Chapter 755 (effective 7/1117) 03/24/17 Governor: Acts of Assembly Chapter text (CHAP0755)

28 7/')f./7017 Bill Tracking- 2017 session> Legislation Page 1 of 1

CHAPTER 755 An Act to amend and reenact§ 8. 01-273 ofthe Code of Virginia, relating to demurrers; amended pleadings. [H 1816] Approved March 24, 2017

Be it enacted by the General Assembly of Virginia:

1. That§ 8.01-273 of the Code of Virginia is amended and reenacted as follows:

§ 8.01-273. Demurrer; form; grounds to be stated; amendment.

A. In any suit in equity or action at law, the contention that a pleading does not state a cause of action or that such pleading fails to state facts upon which the relief demanded can be granted may be made by demurrer. All demurrers shall be in writing and shall state specifically the grounds on which the demurrant concludes that the pleading is insufficient at law. No grounds other than those stated specifically in the demurrer shall be considered by the court. A demurrer may be amended as other pleadings are amended.

B. Wherever a demurrer to any pleading has been sustained, and as a result thereof the demurree has amended his pleading, he shall not be deemed to have waived his right to stand upon his pleading before the amendment, provided that (i) the order of the court shows that he objected to the ruling of the court sustaining the demurrer and (ii) the amended pleading incorporates or refers to the earlier pleading. On any appeal of such a case the demurree may insist upon his original earlier pleading before the amendment, and if the same be held to be good, he shall not be prejudiced by having made the amendment.

Legislative Information System

29 http://leg1.state.va.us/cgi-bin/legp504.exe?171 +ful+CHAP0755 7/26/2017 LIS > Bill Tracking > SB814 > 2017 session Page 1 of 1

SB 814 Foreign business entities; services of summons for witness or another bill? subpoena duces tecum. Scott A. Surovelll all patrons ... notes I add to my profiles

Summary as introduced: Services of summons for witness or subpoena duces tecum on foreign business entities. Allows the court to enforce compliance with a summons for witness or a subpoena duces tecum served on the registered agent of a foreign business entity registered with the State Corporation Commission to transact business in the Commonwealth, regardless of whether the foreign business entity is a party to the underlying case. This bill is in response to the Supreme Court of Virginia decision in Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., Record No. 140242, 770 S.E.2d 440 (20 15) and is a recommendation of the Boyd-Graves Conference.

Full text: 11/02116 Senate: Pre filed and ordered printed; offered 01111/17 17100731 D pdf

Status: 11102/16 Senate: Prefiled and ordered printed; offered 01/11117 171007310 11/02/16 Senate: Referred to Committee for Courts of Justice 01/16/17 Senate: Failed to report (defeated) in Courts of Justice ( 4-Y 8-N)

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30 htto://leg 1.state.va.us/cgi-bin/legp504.exe?ses=171&typ=bil&val=sb814 1119/2017 Bill Tracking- 2017 session> Legislation Page 1 of 1

17100731D SENATE BILL NO. 814 Offered January 11,2017 Prefiled November 2, 2016 A BILL to amend the Code of Virginia by adding in Article 5 ofChapter 14 of Title 8.01 asection numbered 8.01- 410.1. relating to service ofsummons for witness or subpoena duces tecum on registered agent ofa foreign business entity.

Patron-- Surovell

Referred to Committee for Courts of Justice

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding in Article 5 of Chapter 14 of Title 8.01 a section numbered 8.01- 410.1 as follows:

§ 8.01-410.1. Service of'summonsfor wiY.ness'or subpoena duces tecum on foreign business entities.

When a summons for a witness or subpoena duces tecum is served on the registered agent of a foreign business entity that is authorized or registered by or with the State Corporation Commission to transact business in the Commonwealth under any applicable provision ofTitle 13.1 or Title 50, the court may enforce compliance with suqh summons or subpoena, regardless ofwhether the foreign business entity is a party to the underlying case, to the extent consistent with due process. .. ' · !~ I: ·~ ..J This section in no way limits the right ofthe foreign b_Usiness entity to apply to the court to quash or otherwise modifY such summons or >Subpoena. ::. . , ·· · · ·1, :

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31 http://leg 1.state.va.us/cgi-bin/legp504.exe?171 +ful+SB814 1/15/2017 Last amended by Order dated Friday, February 26, 2010; effective May 3, 2010.

RULES OF SUPREME COURT OF VIRGINIA PART FOUR PRETRIAL PROCEDURES, DEPOSITIONS AND PRODUCTION AT TRIAL

Rule4:1. General Provisions Governing Discovery.

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents, electronically stored information, or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission.

(b) Scope ofDiscovery. Unless otherwise limited by order of the court in accordance with these Rules, the scope of discovery is as follows:

(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Subject to the provisions of Rule 4:8 (g), the frequency or extent of use of the discovery methods set forth in subdivision (a) shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation. The court may act upon its own initiative after reasonable notice to counsel of record or pursuant to a motion under subdivision (c).

(2) Insurance Agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person (which includes any individual, corporation, partnership or other association) carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments maqe to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement.

32 (3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this Rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(l) of this Rule and prepared in anticipation oflitigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation ofhis case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 4: 12(a)(4) apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

( 4) Trial Preparation: Experts; Costs - Special Provisions for Eminent Domain Proceedings. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(l) of this Rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A) (i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) A party may depose any person who has been identified as an expert whose opinion may be presented at trial, subject to the provisions of subdivision (b)(4)(C) of this Rule concerning fees and expenses. (iii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this Rule, concerning fees and expenses as the court may deem appropriate.

(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in

33 anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only upon a showing Of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent and expenses incurred in responding to discovery under subdivisions (b)(4)(A)(ii), (b)(4)(A)(iii), and (b)(4)(B) of this Rule; and (ii) with respect to discovery obtained under subdivision (b)( 4)(A)(iii) of this Rule the court may require, and with respect to discovery obtained under subdivision (b)( 4)(B) of this Rule the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

(D) Notwithstanding the provisions of subdivision (b)(4)(C) of this Rule, the condemnor in eminent domain proceedings, when it initiates discovery, shall pay all reasonable costs thereof, including 'vVithout limitation the cost and expense of those experts discoverable under subdivision (b) of this Rule. The condemnor shall be deemed to have initiated discovery if it uses, or gives notice of the use of, any discovery method before the condemnee does so, even though the condemnee subsequently engages in discovery.

(5) Limitations on Discovery in Certain Proceedings. In any proceeding (1) for separate maintenance, divorce, or annulment of marriage, (2) for the exercise of the right of eminent domain, or (3) for a writ ofhabeas corpus or in the nature of coram nobis; (a) the scope of discovery shall extend only to matters which are relevant to the issues in the proceeding and which are not privileged; and (b) no discovery shall be allowed in any proceeding for a writ of habeas . corpus or in the nature of coram nobis without prior leave of the court, which may deny or limit discovery in any such proceeding. In any proceeding for divorce or annulment of marriage, a notice to take depositions must be served in the Commonwealth by an officer authorized to serve the same, except that, in cases where such suits have been commenced and an appearance has been made on behalf of the defendant by counsel, notices to take depositions may be served in accordance with Rule 1:12.

(6) Claims of Privilege or Protection of Trial Preparation Materials.

(i) When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subjectto protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information

34 RULES OF SUPREME COURT OF VIRGINIA PART FIVE THE SUPREME COURT G. PROCEDURE FOLLOWING PERFECTION OF APPEAL

Rule5:24. Security for Appeal.

(a) Compliance With Forms.- All security for appeal required under Code§ 8.01-676.1 shall substantially conform to the forms set forth in the Appendix to this Part Five. (b) Procedure Concerning Defects.- The time for initially filing the appeal bond or letter of credit prescribed by Code§ 8.01-676.1 (B) is not jurisdictional under Code§

8.01-676.1 (P). No appeal shall be dismissed because of a defect in any appeal bond or irrevocable letter of credit unless an appellee, within 21 days after the issuance of the certificate pursuant to Ru~e. 5:23, files with the clerk of this Court a statement in writing ' I '• of the defects in the bond or irrevocable letter of credit, and unless the appellant fails to correct such defects, if any, within 21 days after such statement is filed. If the appellant

'·,. _.r, ·1 .. 1 ·. :: .: I i ' ' I : fails to correct such defects within such period of 21 days, an appellee may move that the appeal be dismissed and it shall be dismissed unless the appellant satisfies this Court that the bond or irrevocabl~ letter of credit, either as originally given or as amended, has been filed in the required form. ,. ' .,

Promulgated by Order dated April30, 2010; effective July 1, 2010. Last amended by Order dated November 1, 2016; effective January 1, 2017.

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35 RULES OF SUPREME COURT OF VIRGINIA PART FIVE A THE COURT OF APPEALS F. PROCEDURE FOLLOWING PERFECTION OF APPEAL

Rule 5A:17. Security for Appeal.

(a) Form for Security.- All security for appeal required under Code§ 8.01- 676.1 shall substantially confonn to the forms set forth in the Appendix to this Part Five A. (b) Security for Appeal; Defects. -Whenever an appellant files an appeal bond or irrevocable letter of credit, he shall contemporaneously give notice in writing of said filing to counsel for appellee. The time for initially filing the appeal bond or letter of

credit prescribed bv Code § 8.01-676.1 (A) and (B) is not juri~dictional under Code § 8.01-676.1 (P). No appeal shall be dismissed because of defect in any n_ppeal bond or irrevocable letter of credit unless an appellee, within 21· days after the giving of such notice, files with the clerk ofthe Court of Appeals a statement in writing of the defects in the bond or irrevocaBle letter of credit, and unless the appellant fails to correct such defects, if any, within 21 days after such statement is filed. If the appellant fails to correct such defects within 2 1' days; an appellee may move that the appeal be dismissed and it shall be dismissed unless the appellant satisfies the Court of Appeals that the bond or irrevocable letter of ~redit, either as origirtally given or as amended, has been filed as I. 1 required by law. •

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Promulgated b)'Order dated April30, 2010; effective July 1', 2010. Last amended by, Or,d,er dated November 1, 2016; effective January 1, 2017.

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36 RULES OF SUPREME COURT OF VIRGINIA PART ONE RULES APPLICABLE TO ALL PROCEEDINGS

Rule 1:5. Counsel and Parties Appearing Without Counsel.

.{ill ffiWhen used in these Rules, the word "counsel" includes a partnership, a professional corporation or an association of members of the Virginia State Bar practicing under a firm name. ill When such firm name is signed to a pleading, notice or brief, the name of at least one individual member or associate of such firm must be signed to it. Papers filed electronically may be signed electronically or by inclusion of a digital image of the signature, as provided in Rule 1:17. Signatures to briefs and petitions for rehearing may be printed or typed and need not be in handwriting. ill Service on one member or associate ofsuch firm shall constitute service on the firtn. 'SetVice is not required to be made on foreign attorneys . .{hl "Counsel of recon;r: includes ~counsel or party who has signed a pleading in the case or who has notified the other parties and the clerk in writing that he or she appears in the case, or has endorsed a draft order of the court as provided in Rule 1 : 13. (c) As required by Code § 8.01-271.1, a party who is not represented by an attornev- including a person cotifined in a state or local correctional facilitv proceeding

PIQ_~e- shall sign every pleading~m'otion, or Q_theLp!!J;_,_er that he or she set'ves or tiles, and shall state his o'r her addres1s.': @ ill Couns~l of iecord shall not withdraw from a case except by leave of court aftern6ti6e to thti client of the time and place of a motion for leave to withdraw. (2) Any order permitting withdrawal shall state the name, Virginia State Bar nhmbel< office adch;ess and telephone numbet' of the attorney or law firm being substituted as cot1nsel of record for the party, along with any electronic mail (emaH) address and ariv' facsfmile humber regularly used for business purposes bv such 'counsel: or · (3) ifreplatemehtbounsel is not being designated at the time df

37 withdrawal by an attorney or law firm, the order permitting withdrawal shall state the address and telephone number of the formerlv represented partv for use in subsequent mailings or service of papers and notices. and the prose partv shall be deemed counsel of record. (e) As required bv Code §§ 8.0 l-319(A) and 16.1-88.03. anv party not represented by counsel who has made an app§arance in tbe case shall rromptlv file with the clerk of the court in which the action is pending a written statement of his or her place of residence and mailing address, and shall inform the clerk in writing ofanv changes of residence and mailing address during the pendency of the action. l'he clerk and all pmiies to the action mav rely on the last written statement filed as aforesaid.

Last amended by Order dated November 1, 2016; effective January 1, 2017.

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EVIDENCE COMMITTEE REPORT

– Fall 2017 –

The GUIDE TO THE RULES OF EVIDENCE IN VIRGINIA contains the full text of the Virginia Rules of Evidence adopted by the Supreme Court of Virginia and enacted into law by the General Assembly. As revised by the Conference's Evidence Committee in the summer of 2017, the 2017-2018 Edition – which will be published this fall by Virginia CLE – retains the format of the recent editions of the Guide and includes notes from cases decided prior to adoption of the Rules, as well as numerous updated citations and descriptions of recent case law. This year, legislative amendments and revised Rules of Evidence are included through August 18, 2017

Evidence Committee Members W. Coleman Allen, Esq. Richard A. Conway, Esq. Catherine French, Esq. Hon. D. Arthur Kelsey Hon. Victor V. Ludwig Monica T. Monday, Esq. John D. McGavin, Esq. Thomas W. Williamson, Jr. Prof. Kent Sinclair, Project Reporter R. Lee Livingston, Esq., Chair

HIGHLIGHTS OF UPDATES TO THE GUIDE FOR 2017-2018

Set forth below are the developments in Virginia Evidence Law that "made the cut" for inclusion in the next edition of the Guide.

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Rule 2:102. SCOPE AND CONSTRUCTION OF THESE RULES

These Rules state the law of evidence in Virginia. They are adopted to implement established principles under the common law and not to change any established case law rendered prior to the adoption of the Rules. Common law case authority, whether decided before or after the effective date of the Rules of Evidence, may be argued to the courts and considered in interpreting and applying the Rules of Evidence. As to matters not covered by these Rules, the existing law remains in effect. Where no rule is set out on a particular topic, adoption of the Rules shall have no effect on current law or practice on that topic.

NOTES

This scope provision of the Virginia Rules of Evidence reflects important policy decisions that undergird the application of the Rules, and played an important part in the process by which they were approved. Three important aspects of the operation of the Rules of Evidence are reflected in Rule 2:102: (1) the basic premise of the Rules is a restatement of traditional Virginia doctrine, without substantive change; (2) on various specific evidentiary issues that are not directly addressed in the Virginia Rules of Evidence, prior doctrine continues to apply, whether it was derived from case law or statutes; and (3) even on topics addressed by a particular Rule of Evidence, prior case law interpretations of the doctrine embodied by the Rule may be cited by counsel, and relied on by the trial court, in the process of interpreting and applying the text of the Virginia Rule of Evidence as it has been adopted. See generally Campos v. Commonwealth, 67 Va. App. 690, 706-08, 800 S.E.2d 174, 183 (2017); Creamer v. Commonwealth, 64 Va. App. 185, 767 S.E.2d 226 (2015).

[Provisionally the Evidence Committee has included in the 2017-2018 edition of the Guide a cite to the Court of Appeals' decision in Campos v. Commonwealth, which gives an extensive discussion of the use to be given pre-existing case law when a court is construing a Rule of Evidence. If an appeal is granted in Compos, this reference may be deleted going forward.]

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41 While the hierarchy of authority in Virginia controlling the definition of evidentiary principles is not directly stated in Virginia Rule of Evidence 2:102, as in the past, if there is a provision in the Code of Virginia specifically addressing an evidentiary doctrine, that statute will control. This is reflected in the legislation approving the effectiveness of the Virginia Rules of Evidence, in particular Virginia Code § 8.01-3, which is the general enabling statute for Rules of Court in Virginia. In addition, throughout the Virginia Rules of Evidence, where the Rule text implements an existing statute—either verbatim or in a slightly reworded fashion to implement the statutory provisions in Rule form—the caption for the particular Rule states expressly the code provision from which the Rule of Evidence is derived.

Rule 2:103. OBJECTIONS AND PROFFERS NOTES

Subdivision (a). Virginia requires a timely objection to evidence, argument, or rulings, and in the case of exclusion of proof, a proffer must be made to create a reviewable record of the excluded matter. Objections and proffers must be specific, see Maxwell v. Commonwealth, 287 Va. 258, 754 S.E.2d 516 (2014); Arnold v. Wallace, 283 Va. 709, 725 S.E.2d 539 (2012); Clinton v. Commonwealth, 204 Va. 275, 130 S.E.2d 437 (1963), rev’d on other grounds, 377 U.S. 158 (1964), and timely asserted. Creamer v. Commonwealth, 64 Va. App. 185, 767 S.E.2d 226 (2015) (proffers); Wright v. Commonwealth, 23 Va. App. 1, 473 S.E.2d 707 (1996); Marlowe v. Commonwealth, 2 Va. App. 619, 347 S.E.2d 167 (1986). Absent a proper offer of proof, an appellate court generally will not consider whether exclusion of evidence was error. Williams v. Harrison, 255 Va. 272, 497 S.E.2d 467 (1998); Ray v. Commonwealth, 55 Va. App. 647, 688 S.E.2d 879 (2010). See Galumbeck v. Lopez, 283 Va. 500, 722 S.E.2d 551 (2012). Rules 5:25 and 5A:18 of the Rules of the Supreme Court of Virginia govern appellate review of claims of error. See Wright v. Norfolk & W. Ry., 245 Va. 160, 168, 427 S.E.2d 724, 728 (1993) (purpose of doctrine explained); Jones v. Ford Motor Co., 263 Va. 237, 559 S.E.2d 592 (2002) (“objection; foundation” not sufficient to permit appellate review of the basis for expert testimony). On the issue of whether the grounds for an --3--

42

objection are apparent from the context, see Solomon v. Atlantic Coast Line Railroad Co., 187 Va. 240, 46 S.E.2d 369 (1948) (objection sufficient where the grounds are patent); Smith v. Commonwealth, 165 Va. 776, 182 S.E. 124 (1935) (same); Evans v. Commonwealth, 161 Va. 992, 170 S.E. 756 (1933) (reason for objection should be assigned but not fatal where the ground would be “immediately apparent”); see also Menefee v. Commonwealth, 189 Va. 900, 55 S.E.2d 9 (1949); Saunders v. Commonwealth, 186 Va. 1000, 45 S.E.2d 307 (1947); Davis v. Commonwealth, 161 Va. 1037, 171 S.E. 598 (1933); Joyner v. Commonwealth, 10 Va. App. 290, 392 S.E.2d 822 (1990). On the issue of co-parties joining or benefitting from objections of another party, see Linnon v. Commonwealth, 287 Va. 92, 752 S.E.2d 822 (2014) (“one party may not rely on the objection of another party to preserve an argument for appeal without expressly joining in the objection.” Id. at 102, S.E.2d at 828).

Failure to object generally is a waiver. Burns v. Board of Supervisors, 227 Va. 354, 315 S.E.2d 856 (1984); see Carter v. Commonwealth, 800 S.E.2d 498, 504 (June 22, 2017)(applying waiver principle to statements made in closing argument and failure promptly to object and move for a mistrial); Maxwell v. Commonwealth, 287 Va. 258, 267-68, 754 S.E.2d 516, 520-21 (2014); Zook v. Commonwealth, 31 Va. App. 560, 525 S.E.2d 32 (2000) (discretion of trial court). Offering an exhibit without first requesting redaction may be a waiver of any objection to parts of its content. Commonwealth v. Jenkins, 255 Va. 516, 499 S.E.2d 263 (1998). If a party does not have a reasonable opportunity to object to a specific item of evidence before it is presented, a prompt motion to strike the objectionable proof from the record may be made. See Bitar v. Rahman, 272 Va. 130, 630 S.E.2d 319 (2006); Kondaurov v. Kerdasha, 271 Va. 646, 629 S.E.2d 181 (2006); Vasquez v. Mabini, 269 Va. 155, 606 S.E.2d 809 (2005) (civil expert testimony); Countryside Corp. v. Taylor, 263 Va. 549, 561 S.E.2d 680 (2002); see also Commonwealth v. Amos, 287 Va. 301, 754 S.E.2d 304 (2014); Va. Code § 8.01-384. The Rule continues the existing and well-established practice of allowing counsel, upon approval of the trial court, “to make a continuing objection to a related series of questions in order to avoid the necessity of repetitious objection.” Rodriguez v.

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43 Commonwealth, 18 Va. App. 277, 286, 443 S.E.2d 419, 425 (1994), aff’d, 249 Va. 203, 454 S.E.2d 725 (1995).

* * * *

Rule 2:401. DEFINITION OF “RELEVANT EVIDENCE”

“Relevant evidence” means evidence having any tendency to make the existence of any fact in issue more probable or less probable than it would be without the evidence.

NOTES

This Rule of Evidence defines relevance and is consistent with traditional and current case law. See Gamache v. Allen, 268 Va. 222, 601 S.E.2d 598 (2004); McNeir v. Greer-Hale Chinchilla Ranch, 194 Va. 623, 628, 74 S.E.2d 165, 169 (1953). The court used similar language in Hardy v. Commonwealth, 110 Va. 910, 922, 67 S.E. 522, 527 (1910): “However remote or insignificant a fact may be, if it tends to establish a probability or improbability of a fact in issue, to make it more or less probable, it is admissible.” Accord Ravenwood Towers, Inc. v. Woodyard, 244 Va. 51, 56, 419 S.E.2d 627, 630 (1992) (citing cases); see Barkley v. Wallace, 267 Va. 369, 595 S.E.2d 271 (2004) (medical bills admitted on non-damage issues); Marsh v. Commonwealth, 32 Va. App. 669, 530 S.E.2d 425 (2000) (relevance of voice exemplars). In a criminal case, “[e]vidence which has no tendency to prove guilt, but only serves to prejudice an accused, should be excluded on the ground of lack of relevancy.” McMillan v. Commonwealth, 277 Va. 11, 22, 671 S.E.2d 396, 401 (2009).

The language used in Virginia Rule of Evidence 2:401, “any fact in issue” appears to have a meaning similar to the phraseology used in most other jurisdictions: “any fact that is of consequence to the determination of the action.” This is sometimes referred to as the "materiality" element of relevance. See Commonwealth v. Proffitt, 292 Va. 626, 634, 792 S.E.2d 3, 7 (2016)(evidence tending to prove a matter that is properly in issue is material). The language of the Rule as adopted reflects that, in Virginia, as in all other states, the fact that the evidence is offered to prove need not

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44

be an ultimate issue in the case. For example, in Goodloe v. Smith, 158 Va. 571, 584, 164 S.E. 379, 383 (1932), the court stated, “It is not necessary . . . that the evidence should bear directly upon the issue. It is admissible if it . . . constitutes a link in the chain of proof.” Regarding the relevance and admissibility of "corroborating" evidence, see Proffitt, 292 Va. at 638, 792 S.E.2d at 9 (such evidence will not be material unless the evidence sought to be corroborated itself supports the allegation or the point in issue).

* * * *

Rule 2:403. EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, MISLEADING THE JURY, OR NEEDLESS PRESENTATION OF CUMULATIVE EVIDENCE

Relevant evidence may be excluded if:

(a) the probative value of the evidence is substantially outweighed by (i) the danger of unfair prejudice, or (ii) its likelihood of confusing or misleading the trier of fact; or

(b) the evidence is needlessly cumulative.

NOTES

Unfair prejudice. This Rule of Evidence recognizes the power of the court to exclude otherwise admissible evidence as unduly prejudicial. See, e.g., Commonwealth v. Proffitt, 292 Va. 626, 635-36, 792 S.E.2d 3, 7 (2016); Gamache v. Allen, 268 Va. 222, 227, 601 S.E.2d 598, 601 (2004) (exclusion where prejudicial impact substantially outweighs legitimate probative value); General Motors Corp. v. Lupica, 237 Va. 516, 522, 379 S.E.2d 311, 315 (1989) (citing cases). Virginia courts have long been careful to assess the prejudicial impact of proffered evidence, and this review has been endorsed by the Supreme Court of Virginia. For example, in Seilheimer v. Melville, 224 Va. 323, 328, 295 S.E.2d 896, 898 (1982), the court stated: “The trial judge, in his discretion, had the responsibility of weighing the probative value of the evidence on this main issue against . . . its possible --6--

45 prejudicial effect.” See Jackson v. Commonwealth, 267 Va. 666, 594 S.E.2d 595 (2004) (direct, eyewitness testimony); Yazid Abunaaj v. Commonwealth, 28 Va. App. 47, 502 S.E.2d 135 (1998) (admission of evidence of HIV infection).

Virginia law generally favors admission of all relevant evidence. See generally Rules 2:401 and 2:402, and the several cases cited in Notes accompanying those provisions. Thus, the present Rule calls for the exclusion of relevant evidence only when its probative value is substantially outweighed by unfair prejudice. Egan v. Butler, 290 Va. 62, 772 S.E.2d 765 (2015); Norfolk & Portsmouth Belt Line R.R. v. Wilson, 276 Va. 739, 667 S.E.2d 735 (2008); Gamache v. Allen, 268 Va. 222, 601 S.E.2d 598 (2004); Brown v. Commonwealth, 3 Va. App. 182, 187, 348 S.E.2d 849, 852 (1986) (exclusion of otherwise relevant evidence where the prejudice is shown to “substantially outweigh” the probative value of the evidence).

The Virginia Supreme Court has recognized that probative evidence obviously prejudices the opponent in the sense that it makes it more likely the opponent will lose. Stockton v. Commonwealth, 227 Va. 124, 143, 314 S.E.2d 371, 383 (1984). Prejudice in this sense does not justify exclusion of the evidence. Proffitt, 292 Va. at 639, 792 S.E.2d at 9; Egan, 290 Va. at 72- 73, 772 S.E.2d at 771. The prejudice that the cases are concerned with is the improper use of or reaction to evidence by suggesting an improper basis for decision such as racial antipathy. See, e.g., Shelby Ins. Co. v. Kozak, 255 Va. 411, 497 S.E.2d 864 (1998) (reference to alcohol history unduly prejudicial where it played no role in the current case). Similar discretion exists to review admission of photographs, which may be gruesome or shocking. Walton v. Commonwealth, 256 Va. 85, 501 S.E.2d 134 (1998); see Dandridge v. Marshall, 267 Va. 591, 594 S.E.2d 578 (2004) (proof that a plaintiff spent money on an “assault weapon” instead of additional medical care).

Confusion of the issues and misleading the jury. In Farley v. Commonwealth, 20 Va. App. 495, 498, 458 S.E.2d 310, 312 (1995), the court stated: “Among the policy considerations that weigh against admitting probative evidence are: (1) its prejudice unfairly outweighs its probative value; (2) its admission is unnecessarily time consuming; and (3) it is confusing and will

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46

likely mislead the jury.” See Cherry v. D.S. Nash Constr. Co., 252 Va. 241, 244, 475 S.E.2d 794, 796 (1996); Spurlin v. Richardson, 203 Va. 984, 990, 128 S.E.2d 273, 278 (1962) (misleading the jury); Davis v. Commonwealth, 34 Va. App. 257, 540 S.E.2d 513 (2001) (drug courier profiles). Virginia requires that, when a defendant claims that a third party committed the offense, the defendant’s evidence must clearly or directly point to that individual as the guilty party in order to be admissible. See Ramsey v. Commonwealth, 63 Va. App. 341, 757 S.E.2d 576 (2014).

Being unnecessarily time consuming and cumulative evidence. Virginia judges have long had the authority to limit prolonged examination of a witness in order to expedite proceedings. Locke v. Commonwealth, 149 Va. 447, 141 S.E. 118 (1928). Useless repetition of cumulative proof need not be condoned. Parsons v. Commonwealth, 154 Va. 832, 846, 152 S.E. 547, 552 (1930). In general a party may offer multiple forms or sources of evidence to establish a matter, and the fact that offered evidence is "cumulative to some extent" will not preclude its consideration by the trier of fact. Egan, 290 Va. at 73, 772 S.E.2d at 771 (evidence that was "sufficiently different in kind and degree" from other admitted evidence was not "needlessly cumulative"). See Proffitt, 292 Va. at 640-41. 792 S.E.2d at 10 (discussing the distinction between corroborative evidence and cumulative evidence). Similar considerations are reflected in the trial judge’s power to limit redirect examination to avoid repetition of testimony. See Hardyman v. Commonwealth, 153 Va. 954, 151 S.E. 286 (1930); Wilson v. Wooldridge, 118 Va. 209, 86 S.E. 872 (1915). Control over recall of witnesses reflects similar policies vesting discretion in the trial judge. Tate v. Bank of the State of N.Y., 96 Va. 765, 32 S.E. 476 (1899); Howel v. Commonwealth, 46 Va. [5 Gratt.] 664 (1848).

* * * *

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47 Rule 2:404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES

NOTES

* * * *

Subdivision (a)(2). Introduction of evidence of a pertinent character trait of the victim where the defendant argues self- defense is permitted by Virginia law. Carter v. Commonwealth, 800 S.E.2d 498, 501-02 (June 22, 2017)(threats allegedly made by the victim); Barnes v. Commonwealth, 214 Va. 24, 197 S.E.2d 189 (1973); Canipe v. Commonwealth, 25 Va. App. 629, 491 S.E.2d 747 (1997); see Randolph v. Commonwealth, 190 Va. 256, 56 S.E.2d 226 (1949). The prosecution may offer proof of the victim’s character for pertinent traits only after the defendant has put the victim’s character in issue. Lee v. Commonwealth, 188 Va. 360, 365-66, 49 S.E.2d 608, 610-11 (1948). Evidence pertaining to the victim of a criminal sexual assault is controlled by the statute embodied in Rule 2:412. See also Epperly v. Commonwealth, 224 Va. 214, 294 S.E.2d 882 (1982) (to establish death of victim). On the character of the victim, see Luck v. Commonwealth, 30 Va. App. 36, 515 S.E.2d 325 (1999). On the issue of how recent the victim's conduct must be in order to be admissible, see Carter, 800 S.E.2d at 503 ("the ultimate issue becomes whether such evidence of prior conduct was sufficiently connected in time and circumstances" as to be probative of present character). The court has discretion to determine how many prior acts of the victim will be received. Id. (allowing recent acts but excluding events years earlier).

* * * *

There are several other exceptions to the general rule excluding evidence of prior conduct of the accused under Virginia case law. Evidence of “other crimes” is relevant and admissible if it tends to prove any element of the offense charged. Thus, evidence of other crimes is allowed when it tends to prove motive, intent, or knowledge of the defendant. Guill, 255 Va. at 138, 495 S.E.2d at 491; Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805; see McGowan v. Commonwealth, 274 Va. 689, 652 S.E.2d 103 (2007); Pryor v. Commonwealth, 276 Va. 312, 661 S.E.2d 820 (2008) (incidents after the crime unduly prejudicial as bad acts --9--

48

offered to show identification of the perpetrator); see also Slaughter v. Commonwealth, 49 Va. App. 659, 644 S.E.2d 89 (2007) (other acts admissible to show intent); Thomas v. Commonwealth, 44 Va. App. 741, 607 S.E.2d 738 (2005) (crime scene facts and motive); Mughrabi v. Commonwealth, 38 Va. App. 538, 567 S.E.2d 542 (2002) (showing state of mind and intent to defraud). Evidence of other crimes, wrongs, or acts may also be introduced to show such things as relationship, identification, preparation, general plan or scheme, and absence of mistake or accident, where the probative value for such a purpose outweighs the prejudice to the defendant. Ortiz v. Commonwealth, 276 Va. 705, 667 S.E.2d 751 (2008); Rodriguez v. Commonwealth, 249 Va. 203, 454 S.E.2d 725 (1995); Woodfin v. Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 380-81 (1988). Concerning the admission of other crimes proof to show a “common plan,” see Severance v. Commonwealth, 67 Va. App. 629, 645, 799 S.E.2d 329, 336 (2017)("common plan or scheme"); Scates v. Commonwealth, 262 Va. 757, 553 S.E.2d 756 (2001) (this ground for admission requires such a concurrence of common features that the various acts in the present case are naturally to be explained as part of a general plan of which they are the individual manifestations); Satcher v. Commonwealth, 244 Va. 220, 230-31, 421 S.E.2d 821, 827-28 (1992); McWhorter v. Commonwealth, 191 Va. 857, 870-71, 63 S.E.2d 20, 26 (1951).

Evidence of other crimes must address a matter genuinely in dispute. See generally Guill v. Commonwealth, 255 Va. 134, 495 S.E.2d 489 (1998); Cooper v. Commonwealth, 31 Va. App. 643, 525 S.E.2d 72 (2000) (nexus requirement in general scheme); Barlow v. Commonwealth, 26 Va. App. 421, 494 S.E.2d 901 (1998); Blaylock v. Commonwealth, 26 Va. App. 579, 496 S.E.2d 97 (1998); Bullock v. Commonwealth, 27 Va. App. 255, 498 S.E.2d 433 (1998).

* * * *

Concerning the similarity of prior crimes used to show the identity of the perpetrator of the crime on trial, see Rose v. Commonwealth, 270 Va. 3, 613 S.E.2d 454 (2005); Minor, 267 Va. at 171, 591 S.E.2d at 65; Powell v. Commonwealth, 267 Va.

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49 107, 141, 590 S.E.2d 537, 558 (2004); Turner v. Commonwealth, 259 Va. 645, 651, 529 S.E.2d 787, 790-91 (2000); Chichester v. Commonwealth, 248 Va. 311, 326, 448 S.E.2d 638, 649 (1994) (“Proof of modus operandi is competent evidence where there is a disputed issue of identity.”); Spencer v. Commonwealth, 240 Va. 78, 90, 393 S.E.2d 609, 616, cert. denied, 498 U.S. 908 (1990). See also Severance, 67 Va. App. at 647, 799 S.E.2d at 337.

Rule 2:606. COMPETENCY OF JUROR AS WITNESS

Upon inquiry regarding the validity of a verdict or indictment, a juror is precluded from testifying as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon any juror’s mind or emotions as influencing any juror to assent to or dissent from the verdict or indictment or concerning any juror’s mental processes in connection therewith.

A juror may testify only as to questions regarding extraneous prejudicial information improperly brought to the jury’s attention as a result of conduct outside the jury room, or whether any improper influence was brought to bear upon any juror from a source outside the jury room.

NOTES

Virginia law holds that the testimony and affidavits of jurors are generally inadmissible to impeach their verdict, especially where the ground of impeachment is their own misconduct. Phillips v. Campbell, 200 Va. 136, 141, 104 S.E.2d 765, 768 (1958); see Fuller v. Commonwealth, 190 Va. 19, 55 S.E.2d 430 (1949) (juror misunderstanding of instructions did not affect verdict); see also Caterpillar Tractor Co. v. Hulvey, 233 Va. 77, 82, 353 S.E.2d 747, 750 (1987); Evans-Smith v. Commonwealth, 5 Va. App. 188, 206, 361 S.E.2d 436, 446 (1987). Hearsay affidavits of jurors are not admissible in a motion for a new trial, but may require the trial court to investigate by summoning one or more jurors to testify under oath in open court. Commercial Union Ins. Co. v. Moorefield, 231 Va. 260, 265, 343 S.E.2d 329, 333 (1986); see Jenkins v. Commonwealth, 244 --11--

50

Va. 445, 423 S.E.2d 360 (1992) (alleged speculation about parole by jurors during deliberations did not warrant further investigation by trial court); Litz v. Harman, 151 Va. 363, 144 S.E. 477 (1928) (quoting affidavits).

[The Committee studied background materials supplied by Professor Sinclair and recognized the United States Supreme Court's recent decision cited below as a landmark – immediately applicable in criminal cases and likely to be extended to civil cases as well. A new paragraph was added to the Notes, accordingly.] The United States Supreme Court has held that state evidence rules such as Virginia's Rule 2:606, which bar use of evidence of juror misconduct absent an extraneous influence brought into the jury room, are generally constitutional. It has held that evidence of drug and alcohol use by jurors during a felony trial does not rise to the level of information the Constitution requires be available to challenge a verdict, Tanner v. United States, 483 U.S. 107, 122-27 (1987), and that lying responses in voir dire about a juror's lack of bias are also shielded from inquiry under Rule 606 provisions. Warger v. Shauers, 135 S. Ct. 521, 525-27 (2014). However, in 2017 the Supreme Court held that "where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 869 (2017)(the Constitution required that the ban on inquiry into jury deliberations under Rule 606 must give way to the right of a defendant to explore disparaging comments about the treatment of women by Hispanic men, made during deliberations on a charge that a Hispanic defendant was guilty of unlawful sexual contact and harassment of two women). Whether this constitutionally protected right to use such evidence will be extended to statements about gender, national origin, religion, or other constitutionally-suspect classifications, was not addressed in Peña-Rodriguez.

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51 Rule 2:613. PRIOR STATEMENTS OF WITNESS

NOTES

* * * * Subdivision (a)(ii). Virginia has long permitted the use of prior inconsistent statements to impeach. Russell v. Commonwealth Transp. Comm’r of Va., 261 Va. 617, 544 S.E.2d 311 (2001); Cassady v. Martin, 220 Va. 1093, 266 S.E.2d 104 (1980); Neblett v. Hunter, 207 Va. 335, 150 S.E.2d 115 (1966). Virginia statute and case law have required that a foundation be laid on cross-examination before extrinsic evidence of a prior inconsistent statement was admissible. Neblett, 207 Va. at 340, 150 S.E.2d at 119; Wickham & Northrop v. Turpin, 112 Va. 236, 70 S.E. 514 (1911); Gordon v. Funkhouser, 100 Va. 675, 42 S.E. 677 (1902); Davis v. Franke, 74 Va. (33 Gratt.) 413 (1880); Unis v. Charlton, 53 Va. (12 Gratt.) 484 (1855); Va. Code §§ 8.01-403, -404, 19.2-268.1; see Proctor v. Commonwealth, 40 Va. App. 233, 578 S.E.2d 822 (2003); see also Newton v. Commonwealth, 29 Va. App. 433, 512 S.E.2d 846 (1999). A statement may be used if comparison of the prior and present contexts shows that it is arguably inconsistent. See Jones v. Commonwealth, 50 Va. App. 437, 650 S.E.2d 859 (2007); Russell, 261 Va. 617, 544 S.E.2d 311.

Certain statements will not be available for impeachment because their use in evidence is barred by other Virginia statutes— see Va. Code §§ 46.2-379 (DMV reports), 19.2-270 (certain statements of accused given as a witness in prior proceedings); Frazier v. Commonwealth, 268 Va. 412, 601 S.E.2d 624 (2004)—or by the Constitutions of the United States or the Commonwealth. See, e.g., New Jersey v. Portash, 440 U.S. 450 (1979).

For a discussiondefinition of “collateral statements,” see Seilheimer v. Melville, 224 Va. 323, 326-27, 295 S.E.2d 896, 898 (1982). See also Massey v. Commonwealth, 67 Va. App. 108, 126, 793 S.E.2d 816, 825 (2016)(addressing collateral inconsistent statements).

* * * *

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52

Rule 2:701. OPINION TESTIMONY BY LAY WITNESSES

NOTES

* * * *

On the need for medical testimony, see Summers v. Syptak, 2017 Va. LEXIS 102, at *9-10 (July 20, 2017); Nichols v. Kaiser Found. Health Plan, Inc., 257 Va. 491, 514 S.E.2d 608 (1999). Cf. Mullin v. Mullin, 45 Va. App. 289, 610 S.E.2d 331 (2005) (mother’s lay opinion on physical condition of child).

Rule 2:702. TESTIMONY BY EXPERTS

NOTES

Subdivision (a)(i). Expert testimony is admissible not only when scientific knowledge is required, but when experience and observation in a special calling give the expert knowledge of a subject beyond that of persons of common knowledge and ordinary experience. Online Res. Corp. v. Lawlor, 285 Va. 40, 736 S.E.2d 886 (2013) (expert tendered for testimony on executive compensation based on stock prices need not be expert in stock valuation).

The Virginia Code provision implemented in this Rule of Evidence governs in civil cases. The Virginia Code section and Rule authorize expert testimony in any situation where it would be helpful to the trier of fact. See Keesee v. Donigan, 259 Va. 157, 524 S.E.2d 645 (2000); Breeden v. Roberts, 258 Va. 411, 518 S.E.2d 834 (1999); Holmes v. Doe, 257 Va. 573, 515 S.E.2d 117 (1999) (testimony on general principles); see also Norfolk S. Ry. v. Bowles, 261 Va. 21, 539 S.E.2d 727 (2001); Hoar v. Great E. Resort Mgmt., Inc., 256 Va. 374, 506 S.E.2d 777 (1998). On medical-related testimony, see Summers v. Syptak, 2017 Va. LEXIS 102, at *9-10 (July 20, 2017)(the causal connection between alleged malpractice and exacerbation of preexisting conditions is a complicated medical question not within the understanding of a lay person); Norfolk & W. Ry. v. Keeling, 265

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53 Va. 228, 576 S.E.2d 452 (2003) (biomechanical testimony about conditions of the inner ear); John v. Im, 263 Va. 315, 559 S.E.2d 694 (2002) (brain injury); Sami v. Varn, 260 Va. 280, 535 S.E.2d 172 (2000); Phillips v. Southeast 4-H Educ. Ctr., Inc., 257 Va. 209, 510 S.E.2d 458 (1999); Nichols v. Kaiser Found. Health Plan, Inc., 257 Va. 491, 514 S.E.2d 608 (1999); Combs v. Norfolk & W. Ry., 256 Va. 490, 507 S.E.2d 355 (1998); see also Dagner v. Anderson, 274 Va. 678, 651 S.E.2d 640 (2007); Christian v. Surgical Specialists of Richmond, Ltd., 268 Va. 60, 596 S.E.2d 522 (2004). But see Fitzgerald v. Commonwealth, 273 Va. 596, 643 S.E.2d 162 (2007) (testimony of licensed professional counselor); Conley v. Commonwealth, 273 Va. 554, 643 S.E.2d 131 (2007) (testimony by licensed clinical social worker). An expert need not be licensed to practice the discipline in the Commonwealth unless subject-specific statutes so provide. See Commonwealth v. Allen, 269 Va. 262, 609 S.E.2d 4 (2005) (sexual predator expert proof statute changed after trial). On the issue of whether expert testimony is required in a case involving medical care, see Webb v. Smith, 276 Va. 305, 661 S.E.2d 457 (2008) (failure to perform one of two agreed-upon procedures); Coston v. Bio-Medical Applications of Va., Inc., 275 Va. 1, 5, 654 S.E.2d 560, 562 (2008) (defective treatment chair). Regarding testimony by chiropractors and podiatrists on medical issues, see Virginia Code § 54.1-2900 (including “diagnosis” of physical conditions), § 8.01-401.2:1 (precluding testimony of podiatrists as expert witnesses in medical malpractice proceedings against a doctor of medicine or osteopathic medicine), and § 8.01-401.2 (authorizing a doctor of chiropractic, or a physician assistant or nurse practitioner, when properly qualified, to testify as an expert as to etiology, diagnosis, prognosis, treatment, treatment plan, and disability, including anatomical, physiological, and pathological considerations within the scope of the practice of chiropractic as defined in § 54.1-2900) or the scope of physician assistant or nurse practitioner activities authorized pursuant to § 54.1-2952, but precluding a physician assistant or nurse practitioner from testifying as an expert witness in a medical malpractice action for or against (i) a doctor of medicine or osteopathic medicine regarding the standard of care of a doctor of medicine or osteopathic medicine or (ii) a defendant health care provider regarding causation).

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54

Reasonable certainty and medical diagnosis. Expert opinion is properly offered when “based on a reasonable degree of professional certainty.” See, e.g., Norfolk S. Ry. v. Bowles, 261 Va. 21, 539 S.E.2d 727 (2001) (ergonomics). In medical testimony, a requirement that the conclusion be expressed to “a reasonable degree of medical probability” is often stated. See Fruiterman v. Granata, 276 Va. 629, 668 S.E.2d 127 (2008). Several decisions have discussed the requirements set forth in Virginia Code § 8.01- 399 for the testimony of treating physicians, and have addressed the distinction between statements that convey medical diagnoses, which must be expressed to a reasonable degree of medical probability, and statements that are “factual in nature,” to which the standard does not apply. See generally Graham v. Cook, 278 Va. 233, 682 S.E.2d 535 (2009); King v. Cooley, 274 Va. 374, 650 S.E.2d 523 (2007); Holmes v. Levine, 273 Va. 150, 639 S.E.2d 235 (2007); Pettus v. Gottfried, 269 Va. 69, 606 S.E.2d 819 (2005). When an expert examines facts and circumstances leading to an injury, an opinion as to the cause of the injury is not rendered factually unsupported by the possibility of another cause. See generally Ford Motor Co. v. Bartholomew, 224 Va. 421, 429-30, 297 S.E.2d 675, 679-80 (1982). However, where a medical witness purported to give a differential diagnosis eliminating all possible causes of death until only one remained, reliance upon a medical examiner's conclusions which did not address other possible causes made the differential diagnosis testimony inadmissible. Toraish v. Lee, 797 S.E.2d 760, 763-65 (2017)(in accord with medical practice, geneticist could rely on a medical examiner's findings, but absent findings by the other expert excluding other possible causes of death, the trial witness' differential diagnosis on the cause of death was inadmissible). See also Virginia Board of Medicine v. Zackrison, 67 Va. App. 461, 476-77, 796 S.E.2d 866, 873-74 (2017)(applying evidentiary standards by analogy in an administrative proceeding, a doctor facing disciplinary charges was qualified as an expert and should have been permitted to testify in her own behalf).

Subdivision (a)(ii). The basic requirement that the trier of fact may need the assistance of expertise is stated in many Virginia cases. See, e.g., Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 296, 362 S.E.2d 32, 42 (1987); Compton v. Commonwealth, 219 Va. 716, 250 S.E.2d 749 (1979); Neblett v. --16--

55 Hunter, 207 Va. 335, 150 S.E.2d 115 (1966); Grasty v. Tanner, 206 Va. 723, 146 S.E.2d 252 (1966). This requirement remains applicable in criminal cases, not controlled by Virginia Code § 8.01- 401.3(A). See Velazquez v. Commonwealth, 263 Va. 95, 557 S.E.2d 213 (2002) (sexual assault nurse examiner’s testimony); see also Payne v. Commonwealth, 277 Va. 531, 674 S.E.2d 835 (2009) (behavior of alcoholics); Bell v. Commonwealth, 264 Va. 172, 563 S.E.2d 695 (2002) (future dangerousness in capital murder cases); Askew v. Commonwealth, 40 Va. App. 104, 578 S.E.2d 58 (2003) (police officer’s opinion relating to personal use of drugs or intent to sell).

Subdivision (b). Velazquez v. Commonwealth, 263 Va. 95, 557 S.E.2d 213 (2002); Cantrell v. Commonwealth, 229 Va. 387, 395-96, 329 S.E.2d 22, 28 (1985); Spruill v. Commonwealth, 221 Va. 475, 479, 271 S.E.2d 419, 421 (1980). Expert testimony concerning the veracity of witnesses is not admissible. See James v. Commonwealth, 254 Va. 95, 97, 487 S.E.2d 205, 206 (1997); see also Payne v. Commonwealth, 292 Va. 855, 866, 794 S.E.2d 577, 582-83 (2016)65 Va. App. 194, 776 S.E.2d 442 (2015) (detective’s opinion that the defendant was truthful and innocent was properly excluded).

* * * *

Rule 2:703. BASIS OF EXPERT TESTIMONY

NOTES

Subdivision (a). Virginia Code § 8.01-401.1 governs civil actions and is implemented in Rule 2:703(a). It allows experts to base opinion testimony on any material normally considered in the discipline involved, even if that information would be inadmissible in evidence. See Reid v. Boyle, 259 Va. 356, 527 S.E.2d 137 (2000); Holmes v. Doe, 257 Va. 573, 515 S.E.2d 117 (1999) (testimony on general principles); see also State Farm Mut. Auto. Ins. Co. v. Kendrick, 254 Va. 206, 491 S.E.2d 286 (1997) (party may qualify as expert).

Expert testimony is admissible in civil cases when it is based on an adequate factual foundation. Countryside Corp. v. Taylor,

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263 Va. 549, 561 S.E.2d 680 (2002); see Va. Code §§ 8.01-401.1, - 401.3; Bussey v. E.S.C. Rests., Inc., 270 Va. 531, 620 S.E.2d 764 (2005); Lawson v. Doe, 239 Va. 477, 482-83, 391 S.E.2d 333, 336 (1990); Clark v. Chapman, 238 Va. 655, 664-65, 385 S.E.2d 885, 891 (1989). Expert testimony is inadmissible if it is speculative, founded on assumptions that have no basis in fact, or is without a direct, causal relationship to the allegations in the case. Holiday Motor Corp. v. Walters, 292 Va. 461, 483, 790 S.E.2d 447, 458 (2016)(expert testimony predicated upon "two unfounded assumptions" without evidentiary foundation from testing or analysis was inadmissible); Hyundai Motor Co. v. Duncan, 289 Va. 147, 766 S.E.2d 893 (2015). See Funkhouser v. Ford Motor Co., 285 Va. 272, 736 S.E.2d 309 (2013) (testimony based solely on prior circumstances that were not similar to the case at bar); Blue Ridge Serv. Corp. v. Saxon Shoes, Inc., 271 Va. 206, 624 S.E.2d 55 (2006) (causation of fire damage); Vasquez v. Mabini, 269 Va. 155, 606 S.E.2d 809 (2005) (testimony on loss of earning capacity); Countryside Corp., 263 Va. 549, 561 S.E.2d 680; John v. Im, 263 Va. 315, 559 S.E.2d 694 (2002); see Gilbert v. Summers, 240 Va. 155, 159-60, 393 S.E.2d 213, 215 (1990); Cassady v. Martin, 220 Va. 1093, 1100, 266 S.E.2d 104, 108 (1980); see generally CNH America LLC v. Smith, 281 Va. 60, 704 S.E.2d 372 (2011) (adequate foundation needed; failure to perform tests: unsupported factual assumptions). Additionally, expert testimony is inadmissible if the expert fails to consider all the variables that bear upon the inferences to be deduced from the facts observed. John, 263 Va. 315, 559 S.E.2d 694; Griffin v. Spacemaker Group, Inc., 254 Va. 141, 146, 486 S.E.2d 541, 544 (1997); Tittsworth v. Robinson, 252 Va. 151, 154, 475 S.E.2d 261, 263 (1996).

In civil cases, Virginia Code § 8.01-401.1 as set forth above allows an expert to rely on inadmissible material in forming an opinion. For cases discussing the extent to which an expert may rely on hearsay in forming an opinion, see Boyce v. Commonwealth, 279 Va. 644, 691 S.E.2d 782 (2010); Lawrence v. Commonwealth, 279 Va. 490, 689 S.E.2d 748 (2010); Commonwealth v. Garrett, 276 Va. 590, 667 S.E.2d 739 (2008). Reliance upon hearsay by an expert in forming an opinion does not render that hearsay admissible on direct examination, regardless of whether the hearsay involves opinions or fact statements. --18--

57 Lawrence, 279 Va. 490, 689 S.E.2d 748. See generally Commonwealth v. Wynn, 277 Va. 92, 671 S.E.2d 137 (2009). While Virginia Code § 8.01-401.1 and Rule 2:703 permit experts to rely on inadmissible material in forming opinions, where the entire basis for an expert’s testimony was a collection of prior events that were not substantially similar to those in the pending case, it was not error to rule the proffered testimony inadmissible, because it was necessarily based on assumptions with an insufficient factual basis and had too many missing variables to permit expert testimony. Funkhouser v. Ford Motor Co., 285 Va. 272, 736 S.E.2d 309 (2013). The fact that an expert’s testimony relies on calculations prepared by others goes to the weight of the testimony, not to the witness’s qualification as an expert. Online Res. Corp. v. Lawlor, 285 Va. 40, 736 S.E.2d 886 (2013) (“reliable stock valuations” by others used in damage calculation). When an expert examines facts and circumstances leading to an injury, an opinion as to the cause of the injury is not rendered factually unsupported by the possibility of another cause. See generally Ford Motor Co. v. Bartholomew, 224 Va. 421, 429-30, 297 S.E.2d 675, 679-80 (1982). However, where a medical witness purported to give a differential diagnosis eliminating all possible causes of death until only one remained, reliance upon a medical examiner's conclusions which did not address other possible causes made the differential diagnosis testimony inadmissible. Toraish v. Lee, 797 S.E.2d 760, 763-64 (2017)(in accord with medical practice, geneticist could rely on a medical examiner's findings, but absent findings by the other expert excluding other possible causes of death, the trial witness' differential diagnosis on the cause of death was inadmissible).

Rule 2:803. HEARSAY EXCEPTIONS APPLICABLE REGARDLESS OF AVAILABILITY OF THE DECLARANT

NOTES

Exception (0). Virginia’s traditional treatment of admissions as a key exception to the hearsay rule is embodied in this Rule. Subpart (A)–party’s own admission, Atkins v. Commonwealth, 800 S.E.2d 827, 831-32 (2017) ("Tweets" posted on the Twitter --19--

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social media platform and cellular telephone text messages as admissions of the person who sent them); Goins v. Commonwealth, 251 Va. 442, 470 S.E.2d 114 (1996); Tyree v. Lariew, 208 Va. 382, 158 S.E.2d 140 (1967); McCarter v. Commonwealth, 38 Va. App. 502, 566 S.E.2d 868 (2002); subpart (B)–adoptive admissions, Lynch v. Commonwealth, 272 Va. 204, 630 S.E.2d 482 (2006); Prince v. Commonwealth, 228 Va. 610, 324 S.E.2d 660 (1985); Clemmer v. Commonwealth, 208 Va. 661, 159 S.E.2d 664 (1968); subpart (C)–admission by personal representative, Gaines’s Adm’r v. Alexander, 48 Va. (7 Gratt.) 257 (1851), or designated speaking agent. Although an agent employed for the purpose of making a statement may qualify under subdivision (C), very few employees are hired to be speaking agents. Subpart (D) reflects Virginia case authority admitting the statements of employees and other “non-speaking agents” only on matters within the sphere of their responsibilities and during the term of their employment. Turner v. Norfolk S. Ry., 205 Va. 691, 139 S.E.2d 68 (1964); Barr v. S.W. Rodgers Co., 34 Va. App. 50, 537 S.E.2d 620 (2000).

Excluded are “admissions of an agent made after the completion of the transaction in which he was engaged.” Bankers Fire Ins. Co. v. Henderson, 196 Va. 195, 83 S.E.2d 424 (1954). The general rule is that a company is not bound by the “declarations or admissions of any of its servants beyond the immediate sphere of their agency, and during the transaction of the business in which they are employed.” Blue Ridge Light & Power Co. v. Price, 108 Va. 652, 655, 62 S.E. 938, 939 (1908). Subpart (E)—statements of co-conspirators are admitted under Virginia case law. Floyd v. Commonwealth, 219 Va. 575, 249 S.E.2d 171 (1978); Berger v. Commonwealth, 217 Va. 332, 228 S.E.2d 559 (1976); Anderson v. Commonwealth, 215 Va. 21, 205 S.E.2d 393 (1974). The Confrontation Clause operates as a restriction on admissibility of co-defendant and co-conspirator statements. See generally Crawford v. Washington, 541 U.S. 36 (2004) (clause bars use of “testimonial statements” unless declarant is unavailable and opponent had opportunity to cross- examine the statement previously); Dearing v. Commonwealth, 259 Va. 117, 524 S.E.2d 121 (2000); Lilly v. Commonwealth, 258 Va. 548, 523 S.E.2d 208 (1999); Bass v. Commonwealth, 31 Va. App. 373, 523 S.E.2d 534 (2000). The requirement for --20--

59 independent evidence of the existence of the conspiracy has been recognized in Virginia. Donahue v. Commonwealth, 225 Va. 145, 300 S.E.2d 768 (1983). This rule is subject to Virginia Code § 8.01-418, which allows pleas of guilty or nolo contendere to be admitted as evidence in certain civil actions. See Mikhaylov v. Sales, 291 Va. 349, 784 S.E.2d 286 (2016) (plea of guilty to assault charge was admissible in later civil action but did not estop the defendant from denying the occurrence or extent of any alleged assault). Cf. Santen v. Tuthill, 265 Va. 492, 578 S.E.2d 788 (2003) (general district court guilty plea not available for impeachment after appeal to circuit court). See generally Gray v. Rhoads, 268 Va. 81, 597 S.E.2d 93 (2004) (applicability of Va. Code § 8.01-404, use of prior statements as admissions).

* * * *

Exception (2). A statement comes within the excited utterance exception to the hearsay rule, and is admissible to prove the truth of the matter stated, when the statement is spontaneous and impulsive, prompted by a startling event, and is made at such time and under such circumstances as to preclude the presumption that it was made as the result of deliberation. Goins v. Commonwealth, 251 Va. 442, 470 S.E.2d 114 (1996); Braxton v. Commonwealth, 26 Va. App. 176, 493 S.E.2d 688 (1997). In addition, the declarant must have firsthand knowledge of the startling event. Synan v. Commonwealth, 67 Va. App. 173, 183- 84, 795 S.E.2d 464, 469-70 (2017); Goins, 251 Va. at 460, 470 S.E.2d at 126. The decision whether the statement qualifies as an excited utterance lies within the discretion of the trial court. Clark v. Commonwealth, 235 Va. 287, 292, 367 S.E.2d 483, 486 (1988). Admissible excited utterances may either describe an event or relate to it, and must be made at any time during the duration of the condition of excitement. Doe v. Thomas, 227 Va. 466, 318 S.E.2d 382 (1984); Goins v. Commonwealth, 218 Va. 285, 237 S.E.2d 136 (1977); Esser v. Commonwealth, 38 Va. App. 520, 566 S.E.2d 876 (2002) (startling event need not be the crime itself); see Perry v. Commonwealth, 58 Va. App. 655, 712 S.E.2d 765 (2011); see also Hicks v. Commonwealth, 60 Va. App. 237, 725 S.E.2d 748 (2012) (response of gunshot victim to a question, given before any opportunity to deliberate or prevaricate, qualified as excited utterance). See Synan, 67 Va. App. at 184, 795 S.E.2d at 469 (in deciding whether to apply the excited --21--

60

utterance exception, a trial court can consider relevant, but not necessarily dispositive, the lapse of time between the event and declaration and whether the statement was made impulsively on the declarant's own initiative or in response to a question).

* * * *

[As noted at the outset of the Committee's report to the Conference, we have included references to the important Court of Appeals decision in Campos v. Commonwealth, subject to whatever modifications may be necessary if the Supreme Court of Virginia takes the case on further appeal. The Committee used the occasion to re-study some of the prior case law on the hearsay exception for statements made for medical diagnosis and treatment, and slightly recast the Note in light of that study.]

Exception (4). This subdivision of the Rule allows use of statements "made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, “or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” On the issue of an incarcerated person’s statements during substance abuse assessments, offered into evidence by him under this exception, see Lawlor v. Commonwealth, 285 Va. 187, 738 S.E.2d 847 (2013) (under reliability test included in the exception, no abuse of discretion to exclude statements where the rationale of the exception for medical diagnosis or treatment did not apply). Virginia case law admits in evidence a patient’s statements concerning past pain, suffering, and subjective symptoms for the purpose of establishing “the basis of the physician’s opinion as to the nature of the injuries or illness.” Cartera v. Commonwealth, 219 Va. 516, 518, 248 S.E.2d 784, 786 (1978); see Jenkins v. Commonwealth, 254 Va. 333, 492 S.E.2d 131 (1997). Case law before adoption of the Virginia Rules of Evidence allowed admission of a patient’s statements concerning past pain, suffering, and subjective symptoms for the purpose of establishing “the basis of the physician’s opinion as to the nature of the injuries or illness.” Cartera v. Commonwealth, 219 Va. 516, 518, 248 S.E.2d 784, 786 (1978); see Jenkins v. Commonwealth, 254 Va. 333, 492 S.E.2d 131 (1997). The first case after adoption of Rule 2:803(4),

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61 Lawlor v. Commonwealth, 285 Va. 187, 243, 738 S.E.2d 847, 878 (2013), held that there was no abuse of discretion in excluding an incarcerated person’s statements made during substance abuse assessments in prison, where the rationale of the exception for medical diagnosis or treatment did not apply. In Campos v. Commonwealth, 67 Va. App. 690, 713-15, 800 S.E.2d 174, 186- 87 (2017), the Court of Appeals held the exception applicable where a sexual assault nurse had forensic as well as health-care duties to the patient, and authorized receiving under this exception – in the context of intra-familial sexual abuse – a statement by a juvenile victim identifying the perpetrator.

* * * *

Rule 2:804. HEARSAY EXCEPTIONS APPLICABLE WHERE THE DECLARANT IS UNAVAILABLE

NOTES

Exception (b)(1) states Virginia law as it presently exists. Sapp v. Commonwealth, 263 Va. 415, 559 S.E.2d 645 (2002); Longshore v. Commonwealth, 260 Va. 3, 530 S.E.2d 146 (2000); Gray v. Graham, 231 Va. 1, 341 S.E.2d 153 (1986); Director General of Railroads v. Gordon, 134 Va. 381, 114 S.E. 668 (1922); Schneider v. Commonwealth, 47 Va. App. 609, 625 S.E.2d 688 (2006); see Massey v. Commonwealth, 67 Va. App. 108, 122-23, 793 S.E.2d 816, 823 (2016)(if a witness dies after testifying at a preliminary hearing, the transcript of that testimony may be read into evidence at trial if certain safeguards are met): Hicks v. Commonwealth, 60 Va. App. 237, 725 S.E.2d 748 (2012) (prior testimony may be described by a witness who was present, if “the person who seeks to relate the testimony can state the subject matter of the unavailable witness’s testimony with clarity and in detail”). Former testimony meeting the requirements noted in this Rule of Evidence is admissible, whether given a civil or criminal proceeding. Gray, 231 Va. at 5 n.3, 341 S.E.2d at 155 n.3. The former testimony must be accurately and reliably reported. See Saunders v. Commonwealth, 38 Va. App. 192, 562 S.E.2d 367 (2002) (report of preliminary hearing testimony using an interpreter); see also Va. Code § 19.2-165. In accord with existing law, in a civil case the evidence may be used --23--

62

against a person who participated in the prior proceeding personally or through a privy. In this context, the terms “privy” and “privity” are not limited to their meaning in the field of property law. Gray, 231 Va. at 6, 341 S.E.2d at 156. In Nero v. Ferris, 222 Va. 807, 284 S.E.2d 828 (1981), the court noted that “[w]hile privity generally involves a party so identical in interest with another that he represents the same legal right, a determination of just who are privies requires a careful examination into the circumstances of each case.” Id. at 813, 284 S.E.2d at 831. Virginia cases such as Fisher v. Commonwealth, 217 Va. 808, 232 S.E.2d 798 (1977), and Director General of Railroads v. Gordon, 134 Va. 381, 114 S.E. 668 (1922), speak of “substantial identity of parties,” which has meant that not all parties must be the same, so long as the party against whom the testimony would be used in the later proceeding was a participant in the earlier one. Virginia case law also follows the common law approach which requires “substantial identity of issues” at the former proceeding and the current trial. Shifflett v. Commonwealth, 218 Va. 25, 235 S.E.2d 316 (1977); Fisher v. Commonwealth, 217 Va. 808, 232 S.E.2d 798 (1977). The “substantially the same” test does not require that “all the issues (any more than all the parties) in the two proceedings must be the same, but at most that the issue on which the testimony was offered in the first suit must be the same as the issue upon which it is offered in the second.” Gray, 231 Va. at 6, 341 S.E.2d at 156; see Morgan v. Commonwealth, 50 Va. App. 369, 650 S.E.2d 541 (2007) (opportunity for prior cross-examination); see also Va. R. 4:7; Longshore v. Commonwealth, 260 Va. 3, 530 S.E.2d 146 (2000) (cross-examination by former counsel sufficient); Saunders v. Commonwealth, 38 Va. App. 192, 562 S.E.2d 367 (2002).

Rule 2:901. REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the thing in question is what its proponent claims.

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63 NOTES

* * * *

Internet communications. On the foundation for communications over the Internet, including identification of persons communicating under pseudonyms, see Bloom v. Commonwealth, 262 Va. 814, 554 S.E.2d 84 (2001) (identification of communicator under the preponderance of evidence standard was sufficiently supported by factual details and demonstrated knowledge of prior communications, brought to the trial court by direct and circumstantial evidence as well as avowal of counsel).

Tweets and Text Messages. For a discussion exemplifying the foundation sufficient to show by a preponderance of the evidence that "Tweets" posted through a Twitter social media account established in the criminal defendant's name, and 20 cellular telephone text messages extracted from his phone, were made by the defendant against whom they were offered – and hence were party admissions qualifying under that exception to the hearsay rule – see Atkins v. Commonwealth, 800 S.E.2d 827, 831 (2017).

* * * * Digital images. The Supreme Court has held that a proper foundation is laid for admission of electronic files containing digital images or motion pictures by testimony of the technician who copied the materials—without change—from a party’s computer hard drives, and at trial identified the photographs and video clips offered as accurate representations of the digital reproduction she made of the hard drives. Midkiff v. Commonwealth, 280 Va. 216, 694 S.E.2d 576 (2010); see also Lee v. Commonwealth, 28 Va. App. 571, 577, 507 S.E.2d 629, 632 (1998) (oral testimony based upon review of electronic records maintained on a computer).

* * * *

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64

Rule 2:902. SELF-AUTHENTICATION.

Additional proof of authenticity as a condition precedent to admissibility is not required with respect to the following:

* * * * (6) Certified records of a regularly conducted activity. (a) In any civil proceeding where a business record is material and otherwise admissible, authentication of the record and the foundation required by subdivision (6) of Rule 2:803 may be laid by (i) witness testimony, (ii) a certification of the authenticity of and foundation for the record made by the custodian of such record or other qualified witness either by affidavit or by declaration pursuant to Code § 8.01-4.3, or (iii) a combination of witness testimony and a certification. (b) The proponent of a business record shall (i) give written notice to all other parties if a certification under this section will be relied upon in whole or in part in authenticating and laying the foundation for admission of such record and (ii) provide a copy of the record and the certification to all other parties, so that all parties have a fair opportunity to challenge the record and certification. The notice and copy of the record and certification shall be provided no later than 15 days in advance of the trial or hearing, unless an order of the court specifies a different time. Objections shall be made within five days thereafter, unless an order of the court specifies a different time. If any party timely objects to reliance upon the certification, the authentication and foundation required by subdivision (6) of Rule 2:803 shall be made by witness testimony unless the objection is withdrawn. (c) A certified business record that satisfies the requirements of this Rule shall be self-authenticating and requires no extrinsic evidence of authenticity. (d) A copy of a business record may be offered in lieu of an original upon satisfaction of the requirements of Code § 8.01- 391(D) by witness testimony, a certification, or a combination of testimony and a certification.

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65

NOTES

* * * *

Subdivision (6). This provision implements legislation approved by the General Assembly in 2014—new Virginia Code § 8.01-390.3 and an amendment to § 8.01-391(D)—creating a procedure for authenticating a business record and laying the required foundation for its receipt by use of a sworn certificate of the custodian or other qualified witness, in lieu of live testimony, in instances where the opponent does not object that procedure. The procedure is applicable in both civil and criminal only in civil cases, and authorizes use of an affidavit or a declaration sworn pursuant to Virginia Code § 8.01-4.3 in order to provide the necessary foundational showings.

* * * *

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Tab 5

67 Monica T. Monday iii GENTRY LOCKE [email protected] Attorneys P: (540)983 -9405 F: (540)983-9400

September 6, 2017

Via email: stuart.a.raphael(a~~gmail.com

Stuart A. Raphael, Esquire 3018 N. Quincy St. Arlington, Va. 22207

Re: Boyd-Graves Conference Committee Report on Appeals ofRight in the Court ofAppeals of Virginia

Dear Stuart:

Our study committee members are Lori Lord, Sona Rewari, Jay O'Keeffe, Tracy Walker, Steve Emmert, and Kent Sinclair. Our committee was charged with studying whether there should be an appeal of right in all criminal and civil cases in the Court of Appeals of Virginia. This issue was carried over from last year to permit further study.

Background and Jurisdiction of Virginia's Appellate Courts To frame the issue, we provide some background on the Court of Appeals of Virginia, the Supreme Court of Virginia, and the jurisdiction of those courts.

Until 1985, the Supreme Court of Virginia was the sole appellate tribunal in Virginia. Effective January 1, 1985, the General Assembly created the Commonwealth's intermediate appellate court —the Court of Appeals of Virginia. Va. Code § 17.1-400(A). The Court was originally composed of ten judges, but now has eleven members. Id. The judges sit in panels of three in designated locations in the Commonwealth. Va. Code § 17.1-400(A) and (B).

The Court of Appeals has limited appellate jurisdiction. It has jurisdiction to hear appeals of all criminal and traffic cases, except those where a sentence of death has been imposed, and concealed weapon permit cases. Va. Code § 17.1-406(A). There is no right of appeal in these cases; they are heard by petition. Id. When the Court of Appeals denies a petition for appeal in a criminal case, it provides an order with an explanation of the reasons for the denial. Va. Code § 17.1-407(D). When the Court of Appeals grants an appeal, it later issues a reasoned order or opinion by a panel of the Court. Va. Code § 17.1-413.

The Court of Appeals hears appeals of right in workers' compensation cases, juvenile and domestic relations cases, and appeals involving administrative agencies other than the State Corporation Commission. Va. Code §§ 17.1-405 and 407(B). It also has original jurisdiction to

10 Franklin Road SE, Suite 900 Roanoke, VA 24011 • PO Box 40013 Roanoke, VA 24022-0013 Toll Free: 866.983.0866 //8093448v 1 68 i~i~ GENTRY LOCKS

September 6, 2017 Page 2

issue writs of mandamus, prohibition, and habeas corpus in any case over which the court would have appellate jurisdiction,l Va. Code § 17.1-404, as well as writs of actual innocence based on non-biological evidence. Va. Code § 19.2-327.10.

The Supreme Court has seven justices. Va. Code § 17.1-300. It has appellate jurisdiction over decisions of the Court of Appeals, and those appeals are brought by petition. Va. Code § 8.01- 670. However, the decisions of the Court of Appeals are generally final in traffic and misdemeanor cases where no incarceration is imposed, in domestic relations matters, and in cases originating before administrative agencies and the Virginia Workers' Compensation Commission. Va. Code § 17.1-410(A). The Supreme Court may review those decisions only if it finds that the case involves a substantial constitutional question as a determinative issue or matters of significant precedential value. Va. Code § 17.1-410(B). In all other civil cases, the Supreme Court has appellate jurisdiction, and those appeals are initiated by petition for appeal.

The Supreme Court grants approximately 15-20% of petitions for appeal in civil cases, excluding those dismissed due to jurisdictional procedural defects. The grant rate for criminal appeals, which have already been reviewed in the Court of Appeals, is 8-10%.2 When the Supreme Court refuses a petition for appeal on the merits, it issues a simple order stating that there is no reversible error. When the Supreme Court grants a petition for appeal, it later issues a reasoned order or an opinion after full Court review.

Appeals of right to the Supreme Court are available only in death penalty cases, State Corporation Commission appeals, Judicial Inquiry &Review Commission appeals, and Virginia State Bar disciplinary cases. Va. Code § 17.1-406(B) and Va. Code § 17.1-902. The Supreme Court has original jurisdiction to issue writs of mandamus, prohibition, habeas corpus, and actual innocence petitions based upon biological evidence. Va. Code § 17.1-309 and Va. Code § 19.2- 327.2.

The Role of the Intermediate Appellate Court "The legal systems in most states initially contemplated a single appellate court that served" the functions of correcting error and developing the law for future application.3 However, during the

'In practice, the Court of Appeals has declined to exercise its original jurisdiction over writs of habeas corpus "absent exceptional circumstances." White v. Garraghty, 2 Va. App. 117, 123 (1986). Z The precise grant rates for civil and criminal cases vary depending on the specific data examined. 3 The Role ofState Intermediate Appellate Courts: Principlesfor Adapting to Change, p.2(Nov. 2012) (self-styled as "A White Paper produced by the Council of Chief Judges of the State Courts of Appeal" — hereafter referred to as "'White Paper").

69 //8093448v 1 GENTRY LOCKS

September 6, 2017 Page 3 twentieth century, the increased workload of the single appellate court necessitated the addition of an intermediate appellate court to enable states to timely resolve appeals:

But throughout the twentieth century, appellate courts experienced significant increases in workload as a result of various factors, including population growth, expanded post-conviction and appellate rights in criminal cases, increases in legislation and government regulation, expansion of appellate jurisdiction to include the review of agency decisions, and a societal trend toward resolving social and economic controversies through the legal system. The burgeoning workload resulted in a backlog of appellate cases and a growing lack of confidence in the judicial system.4

The purpose of an intermediate appellate court like the Court of Appeals of Virginia is to relieve the workload of the state's highest court and to ensure the timely resolution of appeals by serving as an error-correction courts Thus, intermediate appellate courts are often called the "workhorses" of the modern appellate system.b

Appellate Court Structure in Other States "The majority of states have one or more intermediate appellate courts (IACs), with over ninety such courts nation-wide."~ All but nine states have an intermediate appellate court. The nine states that do not have an intermediate appellate court are too sma11 in either size or population to support an additional appellate court.$ In fact, when the creation of an intermediate appellate court for Virginia was being debated, Virginia was the only state of its size without an intermediate appellate court.9 In larger states, intermediate appellate courts may have multiple courts or divisions.lo

4 Id. 5 Id. at pp.l -2. 6 Id. at p.l . Id. 8 The states that do not have an intermediate appellate court are: Delaware, Maine, Montana, New Hampshire, Rhode Island, South Dakota, Vermont, West Virginia, and Wyoming. Additionally, the District of Columbia does not have an intermediate appellate court. 9 S. McCullough and M. Decker, The Court of Appeals of Virginia Celebrates Thirty Years of Service to the Commonwealth, 50 U. Rich. L. Rev. 217, 218 (2015). to The states with multiple intermediate appellate courts or divisions include: Arkansas, Arizona, California, Colorado, Florida, Georgia, Illinois, Kentucky, Louisiana, Michigan, Mississippi, Missouri, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Tennessee, Texas,

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The jurisdiction of intermediate appellate courts varies from state to state but, in most states, intermediate appellate courts have plenary jurisdiction. According to the National Center for State Courts,ll the appellate courts of the modern state judiciary include an intermediate appellate court with mandatory review and a court of last resort with discretionary review:

The most common structure for a state appellate court system involves one court of last resort with largely discretionary review, commonly called a supreme court, and one intermediate appellate court with largely mandatory review. Because of this jurisdiction, the intermediate appellate court is the court of final review for the vast majority of state court appeals.

Even in states with an intermediate appellate court, death penalty appeals are usually heard only in the state's highest court.12

Scope of Committee Discussion and Input The committee benefited from the input of several legislators and judges. We also considered the 1994 report by the judiciary committee of The Virginia Bar Association titled Appellate Review in Virginia. This report, which was kindly provided by Professor Sinclair, summarized the findings of a two-year study of the appellate process in Virginia. We also reviewed several articles and resources that are referenced in footnotes. Finally, we considered data regarding the number of appellate filings and dispositions in the Supreme Court of Virginia and Court of Appeals of Virginia.

In addressing the issue whether the Court of Appeals' limited jurisdiction should be expanded to provide all litigants an appeal of right, we did not consider what resources, if any, would be required to effectuate such an expansion. That question is not within the expertise and knowledge of the Committee. Nevertheless, anecdotal information suggests that, with some staffing and other adjustments, the Court of Appeals has the capacity to handle such an expansion.

and Washington. NCSC Appellate Court, Table 2.1(c), http://ncsc.org/Microsites/SCO/home/list- of-tables.aspx. 11 National Center for State Courts, Appellate Procedure Resource Guide, http://www.ncsc. org/Topics /Appellate/Appellate-Procedure/Resource-Guide.aspx. 12 White Paper, p.4.

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September 6, 2017 Page 5

The Committee recommends an expansion of the Court of Appeals' jurisdiction A slim majority of the committee (4-3) recommends an expansion of the Court of Appeals' jurisdiction to include an appeal of right in all cases except death penalty appeals. As this is not a unanimous recommendation, the committee wants its different views expressed here to provide a foundation for debate among the full Conference.

Those who favor the jurisdictional expansion of the Court of Appeals believe that it will improve access to justice, better utilize our judicial resources, and modernize Virginia's appellate system. They raise the following points:(1) it is a fundamental issue of fairness that all litigants have one automatic right of appeal;(2) members of the public may perceive that they are not getting their day in court at the appellate level because civil litigants who have an appeal refused by the Supreme Court of Virginia only receive an order refusing their appeal with no reason given;(3) criminal defendants should have an appeal of right given the liberty interests at stake; (4) litigants may perceive that some meritorious appeals are not getting granted by the Supreme Court through the petition process, particularly as the grant rate for petitions is low (somewhere between 8-20% depending on the type of case and the incidence of procedural default); (5) the error-correcting function of the Supreme Court of Virginia may prevent it from taking all of the appeals that it would want to take in order to explain or develop the law;(6) in the modern state judiciary, a litigant usually does, and should, have an automatic right of review by the appellate court; (7) the Court of Appeals of Virginia may be the most appropriate forum to handle error- correction cases, leaving the Supreme Court of Virginia to handle significant matters of precedence, novel questions of law, and issues involving the development of the law; and (8) given the full plate of judicial and administrative duties that fall on the Supreme Court of Virginia and the resources available at the Court of Appeals, our entire appellate system could operate more efficiently and effectively by giving the Court of Appeals plenary jurisdiction.

Those in the minority do not believe that an expansion of the Court of Appeals' jurisdiction is necessary, principally because our court system is not broken. They raise the following points: (1) we have an excellent, well-run appellate judiciary and, for those Committee members who have practiced in different states, Virginia's judicial system is far superior to those in other jurisdictions; (2) neither the Supreme Court of Virginia nor the Court of Appeals of Virginia currently suffers from a significant backlog of cases, and both courts issue opinions in a prompt and appropriate fashion (most appeals in the Supreme Court resolve within 12-15 months from the date of filing a notice of appeal, and appeals in the Court of Appeals are often disposed of on an even shorter time-frame); (3) it could significantly increase the cost to litigants because a large number of litigants who otherwise would not appeal to the Supreme Court might exercise their appeal of right to the Court of Appeals of Virginia, and litigants who are not successful in the Court of Appeals could also petition the Supreme Court for review;(4) it would increase the cost to litigants by requiring preparation of the record and the filing of a joint appendix in all cases; (5) adding an additional layer of appellate review will add another 12-18 months to the

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full appellate process if an appeal is taken to the Supreme Court after disposition by the Court of Appeals, thereby delaying finality in those cases;(6) because cases would be resolved by three- judge panels in the Court of Appeals of Virginia, there is the potential for panel disagreements, which will result in more en Banc reviews at the intermediate court level as well as another appeal to the Supreme Court where the disagreement will be finally resolved; (7) there is no meaningful distinction between giving a civil litigant a right to a full appeal with a panel of the Court of Appeals and having a writ panel of the Supreme Court of Virginia consider the merits of a petition for discretionary appeal; and (8) a right of appeal may increase the number of meritless appeals.

Alternative proposals Additionally, the committee debated two alternative proposals, but no consensus was reached about a recommendation that either proposal be adopted. First, the Court of Appeals could have discretionary review of all appeals except those which are now available as an appeal of right. Second, the Supreme Court could give reasoned orders when it refuses a petition for appeal.

Conclusion If the Conference votes in favor of expanding the jurisdiction of the Court of Appeals, we recommend that the issue be studied by an organization (legislative or bar) to determine how it can be implemented. We welcome the debate of the Conference on this important issue.

Very truly yours,

GENTRY LOCKS

Monica T. Monday

MTM:st cc: L. Steven Emmert K. Lorraine Lord James J. O'Keeffe, IV Sona Rewari Kent Sinclair J. Tracy Walker, IV

73 //8093448v 1

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74 Gregory T. St. Ours WHARTON ALDHIZER & WEAVERPLC P. Marshall Yoder Charles F. Hilton ATIORNEYS AT LAW Derek J. Brostek Daniel L. Fitch Ginger T. Chapman Thomas E. Ullrich James L. Johnson Stephan W. Milo 100 SOIITH MAsON STREET Ashley H. Waterbury Humes J. Franklin, III P.O. Box 20028 Alexandra E. Humphreys Jeffrey R. Adams HARRISONBURG, VIRGINIA 22801-7528 Lucas I. Pangle Lauren R. Darden WWW.WAWLAW.COM

TELEPHONE Donald E. Showalter (Retired) HARRISONBURG (540) 434-0316 Glenn M. Hodge (Retired) STAUNTON(540)885-0199 Reply to the Harrisonburg office FAX (540) 434-5502

WRITER'S DIRECT DIAL: (540) 438-5301 WRITER'S E-MAIL: [email protected]

September 12, 2017

VIA ELECTRONIC A.1AJL: [email protected] Stuart A. Raphael, Esq. Hunton & Williams, LLP 2200 Pennsylvania A venue, NW Washington, DC 20037

Re: Should the Virginia Code and/or the Rules of the Supreme Court permit live testimony by video?

Dear Stuart:

Our committee was tasked in 2016 to study the topic set out in the subject line immediately above. The committee as constituted initially consisted of the Honorable Everett A. Martin, Jr., P. Brent Brown, Esq., Thomas J. Curcio, Esq., John D. McGavin, Esq., Sandra M. Rohrstaff, Esq., Carlyle "Randy" Wimbish, Esq., and myself. At my request, you permitted the ad hoc addition of the Honorable Marilyn Goss in order to bring family law experience to the committee, along with Professor Fred Lederer ofthe Marshall-Wythe School of Law as a non­ voting member (insofar as Professor Lederer is not a member of the Boyd Graves Conference) based on hi s extensive study and experience on this topic. The committee convened twice by telephone and twice by Skype in 2016 and in person on February 20 2017. 1

Looking into this topic further, we discovered there to be a good amount of material on the subject. See attachments A-D. Of special note is Professor Lederer's article "The Legality and Practicality of Remote Witness Testimony", The Practical Litigator, September 2009, attachment B.

Our starting point for study was F.R.Civ.P. 43, Taking Testimony, which states:

(a) In Open Court. At trial, the witnesses' testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise. For good cause in compelling circumstances and with appropriate

1 Thanks to Tom Albro for the use of his conference room on Presidents Day when his office was closed.

75 September 12, 2017 Page2 safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.

The substance ofFederal Rule 43(a) has been in place since 1996 and the Revisers' Notes are robust. However, upon reviewing this and other resources, we quickly realized that Virginia already has in place three statutes that address certain aspects of our committee's assigned topic, Code sections 17.1-513.2 applicable to civil proceedings in circuit courts), 16.1-93.1 (applicable 2 to ivi l proceedings in general district courts ) and 19.2-3.1(B). Section 17.1-513.2 (emphasis added), provides:

Notwithstanding any other provision of law, in any civil proceeding in which a party or a witness is incarcerated or when otherwise authorized by the court, the court may, in its discretion, conduct any hearing using a telephonic communication system or an electronic audio and video communication system to provide for the appearance of any parties and witnesses. Any electronic audio and video communication system used to conduct such a hearing shall meet the standards set forth in subsection B of§ 19.2-3.1.

Section 19.2-3.l(B) states:

Any two-way electronic video and audio communication system used for an appearance shall meet the following standards:

1. The persons communicating must simultaneously see and speak to one another; 2. The signal transmission must be live, real time; 3. The signal transmission must be secure from interception through lawful means by anyone other than the persons communicating; and 4. Any other specifications as may be promulgated by the Chief Justice of the Supreme Court.

Based on these three statutes, it seemed to the committee that the philosophy behind the Virginia statues (although somewhat vague as to the extent they may apply to civil testimony in general) compared to F.R.Civ.P. 43(a) leans more toward a relaxed use of remote witness testimony than the federal system.

With that in mind, we examined several issues, including:

2 Code section 16.1-93.1 (applicable to civil proceedings in general district courts) mirrors section 17.1-513.2:

Notwithstanding any other provision oflaw, in any proceeding under this chapter in which a party or witness is incarcerated or when otherwise authorized by the court, the court may, in its discretion, conduct any hearing using a telephonic communication system or an electronic audio and video communication system to provide for the appearance of any parties and witnesses. Any electronic audio and video communication system used to conduct such a hearing shall meet the standards set forth in subsection B of§ 19.2-3 .1. 2 76 September 12, 2017 Page 3

• The administration of oaths to remote witnesses • Would remote testimony under oath by a person not authorized to administer oaths in Virginia be subject to objection • Would remote testimony under oath by a person not authorized to administer oaths in Virginia be competent for consideration by the factfinder • Issues of notice to opposing parties • Handling of exhibits • Subpoenas/compulsory attendance • Types of civil cases to which this applies (would it apply to some domestic cases where children are witnesses?) • Technical issues, such as the size and number of video screens • Encryption of the transmission • Creation of the record • Should there be a picture-in-picture feed • Should any move toward this be done first on a limited, test, basis in one or more jurisdictions of differing sizes • Would a remote witness be subject to prosecution for perjury in a Virginia court • Should considerations for remote testimony be included in a statute, rule, or the circuit and general district court bench books

Judge Martin graciously undertook to draft a statute to bring audio visual testimony into the civil aspects of the circuit and general district courts of the Commonwealth. The text of the proposed statute unanimously recommended by our committee is as follows. An addendum to this report further explains the committee's rational for various provisions of the proposed statute:

Testimony by Audiovisual Technology

A. In any civil trial or proceeding, with the agreement of all parties, the court shall permit live testimony by any party or witness by any means of audiovisual technology.

B. In the absence of the agreement of all parties, the court may permit a party in any civil trial or proceeding to present live testimony by a witness, other than a party or retained expert, by means of audiovisual technology upon such conditions as the court may impose. A party intending to present such testimony shall file written notice of such intent to do so at least 15 days in advance of the trial or proceeding. Any party objecting to such testimony shall file any objection at least 5 days before trial or proceeding, and the objections shall be ruled on before the day of trial or proceeding upon the motion of the proponent of the witness. For good cause shown, the court may permit such testimony when notice is given less than 15 days before the trial or proceeding. 3 77 September 12, 2017 Page4

C. It is the responsibility of the party offering testimony by audiovisual technology to supply the necessary equipment or to insure that the necessary equipment exists in the courtroom, and the failure to do so is not a ground for a continuance.

D. Any oath administered to a party or witness testifying by means of audiovisual technology shall be deemed to have been administered within the Commonwealth.

As I told you a few weeks ago, I am unable to attend the conference this year in order to attend my son's wedding. Brent Brown, however, has graciously agreed to present the committee report in my absence. On behalf of our entire committee, therefore, I respectfully request the conference to endorse the work of the committee and report out the proposed statute as a recommendation of the Boyd-Graves Conference for 2017.

Respectfully submitted,

Charles F. Hilton

CFH/dfm Attachments

17018161

4 78 ADDENDUM

A. In any civil trial or proceeding. with the agreement o[all parties. the court shall permit live testimony by any party or witnes. by any means o{audiovisua/ t •chnology.

Committee note: The committee believes that courts should allow audiovisual testimony if the parties agree. Presuming such an agreement, there should be no prejudice to the parties of witnesses.

B. Tn the absence o[the agreement o[ all parties, the court may permit a party in any civil trial or proceeding to present live testimony by a witn e.~ s. other than a party or retained expert, by means ofa udiovisual technology upon such conditions as the court mav impose. A party intending to present such testimony shall tile wrillen notice ofs uch intent to do so at lea I 15 days in advance ofthe trial or proceeding. A nv party objecting to su h testimony shall fiL e any objection at least 5 days b {or -> trial or proceeding. and the objections shall be ruled on before the day of'trial or proceeding upon the motion o[the proponent o(Lhe witness. For good au e shown. the court maypermit u h te ·timony when. notice is given less than 15 days before the trial or proceeding.

Committee note: Absent agreement under subparagraph A, the committee believes that any party could potentially block the use of A V testimony simply by non-agreement. The committee believes that permitting such an unfettered result would run contrary to social and cultural trends which the courts of the Commonwealth should acknowledge and accommodate. Thus, subsection B gives the court discretion to permit A V testimony even absent agreement of the parties.

The court's discretion, however, is not without limitation. First, the court's discretion does not extend to parties or retained experts. This limitation was included to protect a party's ability to assure that the trier of fact is permitted to see and judge in person those two categories of important witnesses.

Second, because of the absence of agreement, to protect against surprise, 15 days pretrial notice is required (unless the court allows less than fifteen days for good cause shown) with opposing parties having a right to object. The discretion of allowing less than 15 days notice is intended to address unforeseen exigencies that make in-person attendance of a witness unfeasible or impractical, yet promote judicial economy by perhaps avoiding a continuance, nonsuit or other scheduling disruption.

. It is the responsibility o[the party offe ring testimony by audiovi. ual technology to supply the necessary equipment or to insure that the necessary equipment exists in the courtroom. and th failure to do so is not a ground for a continuance.

Committee note: Subsection C is intended to make clear that it is the responsibility for providing the correct working technology on the party offering AV testimony and that the risk and consequences of any failure of such technology is solely on that party.

D. Anv oath administered to a party or witness testifYing bv means o[audiovisual technology ·hall be deemed to have been administered within the ComnwnMea Lth.

79 Committee note: The committee acknowledges that, from a theoretical standpoint, subsection D presents the greatest conceptual challenge to administration of the court system under this statute. The committee believes that violation of the oath by a witness located in Virginia presents little issue in terms of remedies for perjury or contempt. However, how would a charge of perjury be prosecuted in Virginia courts based on an oath administered outside of Virginia? Could a charge of perjury or contempt be pursued in another jurisdiction? These questions raise several fundamental and Constitutional questions that the committee could not resolve analytically and that may merit federal legislation or a model statute promulgated under a multi­ state compact. Those avenues are not open to the committee, nor were they part of the committee's charge. However, having studied the issue in depth, it is yet the committee's belief that the manifestation of such concerns is such a practical rarity that the potential for mischief arising from this subsection is minimal and these potential issues should not be an impediment to enactment of the statute.

80 Closed-circuit television witness examination

Reporter 61 A.L.R.4th 1155

The ALR databases are made current by the weekly addition of relevant new cases as available from the publisher.

Document Type: Annotation

JURISDICTIONAL TABLE OF STATUTES AND CASES

TABLE OF REFERENCES

ARTICLE OUTLINE

Text

[*I] Preliminary Matters

[*1] Introduction [*la] Scope

This annotation 1 collects and analyzes the cases in which the courts have determined whether "live" closed-circuit television2 may be used to present the testimony of a witness who is not physically present within the courtroom.

A number of jurisdictions may have constitutional provisions or legislative enactments bearing upon the subject matter of this annotation. Since any legislative enactments are discussed herein only to the extent that they are reflected in the reported cases within the scope of this annotation, the reader is advised to consult the most recent enactments of the particular · jurisdiction of interest.

[*lb] Related matters

Index to Annotations, Closed-Circuit Television

Index to Annotations, Confrontation of Witnesses

Index to Annotations, Criminal Law

This annotation supersedes the annotation at 80 A.L.R.3d 1212.

2 Although the precise manner in which a closed-circuit television examination is conducted varies from case to case, generally it involves the instantaneous transmission of images and voices over the television cameras and monitors, with parties at either end of the circuit able to hear and be heard, see and be seen, by each other. In this regard, the examination of a witness over closed-circuit television differs from the use of videotape depositions at trial in that the deposition is not being given at the same time it is being presented to the jury. For a collection of cases dealing with the use of videotape depositions in state civil trials, see 66 A.L.R.3d 637.

81 A I 61 A.L.R.4th 1155, *lb

Index to Annotations, Cross-Examination

Index to Annotations, Due Process

Index to Annotations, Videotapes

Index to Annotations, Witnesses

Propriety of Allowing Witness to Hold Stuffed Animal, Doll, Toy or Other Comfort Item During Testimoqy, 82 A.L.R.6th 373

Constitutional and Statutory Validity of Judicial Videoconferencing, 115 A.L.R.5th 509

Permissibility of testimony by telephone in state trial, 85 A.L.R.4th 476

Admissibility of visual recording of event or matter other than that giving rise to litigation or prosecution, 41 A.L.R.4th 877

Condition interfering with accused's view of witness as violation of right of confrontation, 19 A.L.R.4th 1286

Permissibility and standards for use of audio recording to take deposition in state civil case, 13 A.L.R.4th 775

Use of videotape to take deposition for presentation at civil trial in state court, 66 A.L.R.3d 637

Admissibility of videotape film in evidence in criminal trial, 60 A.L.R.3d 333

Admissibility in evidence of sound recording as affected by hearsay and best evidence rules, 58 A.L.R.3d 598

Admissibility of sound recordings in evidence, 58 A.L.R.2d 1024

Admissibility of evidence of complaint or details of complaint by alleged victim of rape or other similar offense as affected by fact that she is not a witness or is incompetent to testify because of age or other reason, 157 A.L.R. 1359

Physical condition or conduct of party, his family, friends, or witnesses during trial, tending to arouse sympathy of jury, as ground for continuance or mistrial, 131 A.L.R. 323

Conduct of party in courtroom tending improperly to influence jury as ground for reversal or new trial, 57 A.L.R. 62

Mental condition as affecting competency of witness, 26 A.L.R. 1491

Construction and Application of Sixth Amendment Confrontation Clause -- Supreme Court Cases, 83 A.L.R. Fed. 2d 385

Page 2 of 52

82 61 A.L.R.4th 1155, *lb

Validity, Construction, and Application of Crime Victims' Rights Act (CVRA), 18 U.S.C.A. § 3771, 26 A.L.R. Fed. 2d 451

Validity, construction, and application of Child Victims' and Child Witnesses' Rights Statute (18 U.S.C.A. § 3509), 121 A.L.R. Fed. 631

Recording of testimony at deposition by other than stenographic means under Rule 30(b )( 4) of Federal Rules of Civil Procedure, 16 A.L.R. Fed. 969

Cook, Constitutional Rights of the Accused, 2d Ed

Federal Procedure, L. Ed., Discovery and Depositions § 26:122

Federal Procedural Forms, L. Ed.§§ 23:171-23:173

Boster, Videotape in the Courtroom: Effects in Live Trials. 14 Trial 49 (1978)

German, Videotape Evidence At Trial. 6 Am J Trial Advocacy (1982)

Kaminski, Videotape in the Courtroom: Responses to Editing Techniques. 14 Trial 38 (1978)

Murray, Use of Videotape in Preparation and Trial of Lawsuits. 11 The Forum 1152 (1976)

[*2] Summary and comment [*2a] Generally

The proposed courtroom use of "live" closed-circuit television is of relatively recent origin, and like many technological developments, it offers several advantages and creates a number of difficulties for a legal system unaccustomed to the use of such methods and unsure of the extent of the ramifications of the technique. Perhaps the greatest barrier to the use of "live" closed-circuit television, at least in criminal trials, is that the absence of the witness from the courtroom may infringe upon the defendant's right to confrontation, guaranteed under the Sixth and Fourteenth Amendments to the United States Constitution, and under certain state constitutions. Federal and most state constitutional confrontation requirements apply specifically to criminal proceedings and have been held to have two purposes: first, and primarily, to secure the opportunity of cross-examination; and second, to obtain the benefit of the moral impact of the court atmosphere as it affects the witness' demeanor. 3

The presentation of testimony via "live" closed-circuit television offers the advantage of allowing a busy expert witness to testify from his own place of work without expending time traveling to and from the courtroom or waiting to be called, as well as the advantage of facilitating the testimony of a witness who is emotionally traumatized, for example, a child witness who allegedly was sexually abused by the defendant. Because of these advantages, the technique is likely to become more widespread in the future and courts will be required to

3 See Am. Jur. 2d, Criminal Law§ 720.

Page 3 of 52

83 61 A.L.R.4th ll55, *2a develop rules and guidelines governing its use. While general trial procedure is governed in most states by practice statutes or court rules, trial courts are generally given a wide discretion in the conduct of trials,4 and, absent a specific state statute or rule prohibiting testimony via closed-circuit television, or possibly a provision banning all cameras and similar equipment from the courtroom, the question whether- to allow the use of the technique may fall within the trial court's broad discretion. Similarly, federal trial courts may be called upon to 'exercise such discretion since neither the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, nor the Federal Rules of Evidence, specifically address the issue of "live" closed-circuit televised testimony.

It has been held that in the absence of explicit legislative authority a trial court does not possess the inherent power to promulgate a procedure which substitutes examination by closed-circuit television of the state's principal witness in a criminal trial for the traditional in-court examination ( § 3). The courts in a number of cases dealing with this issue have expressed the view that the use of "live" closed-circuit television to present the testimony of a witness who is not physically present within the courtroom does not constitute an inherent violation of the defendant's right to confront witnesses against him, as guaranteed under the Sixth and Fourteenth Amendments to the United States Constitution, and certain state constitutions ( § 4).

In determining whether the admission of testimony by a witness who is not present within the courtroom, by means of "live" closed-circuit television, violates the defendant's right of ) confrontation, the courts have set forth a number of minimal constitutional guidelines that must be satisfied or followed in order to admit such testimony without infringing upon the defendant's right of confrontation. It has been held or recognized in several criminal cases that the admission of testimony by means of "live" closed-circuit television may not be in violation of the defendant's right to confront witnesses against him, where it is established that the presentation of such testimony is necessitated due to a compelling state interest or the need to protect the witness from further emotional trauma ( § 5). There is also authority to the effect that the admission of testimony by a witness who is not present within the courtroom, by means of "live" closed-circuit television, may not be in violation of the defendant's right of confrontation, where it is shown that infringement of the defendant's right is as minimally intrusive as possible ( § 6). Other minimal constitutional guidelines include a showing that during the witness' testimony the defendant was able to privately communicate with his attorney ( § 7); that the cameras which recorded the testimony were focused in such a way as to provide the jury with a clear image of the witness, examiner, and any other person present within the examination room ( § 8); and that the manner in which the witness' testimony was transmitted to the court room instilled in the witness a sense of the seriousness of his testimony ( § 9). It has been held that a state statute which allowed the use of closed-circuit television cameras to present the testimony in a sexual abuse case of a victim under the age of 12 did not violate the separation of powers provided under the state constitution ( § 10). Also, it has been

4 See Am. Jur. 2d, Trial § 30.

Page 4 of 52

84 61 A.L.R.4th 1155, *2a

held that the admission of testimony by a witness who is not present within the courtroom, by means of "live" closed-circuit television, does not violate provisions of the Code of Professional Responsibility, which prohibits publicity or public advertising by a lawyer calculated to attract clients, or the Code of Judicial Conduct, which prohibits the televising of court proceedings, since the use of such television to present the evidence was not the type of television proscribed by either of the codes ( § 11). In several criminal cases involving the prosecution for sexual abuse of a minor, it has been held that under the particular circumstances the admission into evidence of a child witness' testimony, presented "live" by means of closed-circuit television, did not violate the defendant's right of confrontation ( § 12[a]). However, where it was found that the defendant, who was charged with the sexual assault of a minor, was not able to privately confer with his counsel during the use of "live" closed-circuit television to present the testimony of a child witness, it was held that the defendant's right of confrontation as provided under the Sixth and Fourteenth Amendments to the United States Constitution and the relevant provision of a certain state constitution was violated ( § 12[b]). It has also been held that the '1ive" presentation of an expert witness' testimony via closed-circuit television, in which the expert described from his laboratory the nature of the substance, marijuana, found in the defendant's possession, was constitutional, the court determining that the defendant's right of confrontation and due process rights were not violated and that the use of such evidence did not violate various codes of conduct ( § 13).

[*2b] Practice pointers In criminal cases in which the defendant has been charged with sexually abusing a minor, the prosecution, in arguing in support of a motion to remove the child witness from the courtroom and to allow the child's testimony to be transmitted into the courtroom by means of "live" closed-circuit television, may want to present expert witnesses to establish that the child witness would undergo further emotional trauma if compelled to testify in the courtroom in the presence of the defendant. In such cases, the prosecution may want to introduce the opinion of a psychologist or psychiatrist who could testify as to the particular emotional effect testifying in the courtroom would have upon the child witness, and how testifying under such conditions might cause the child witness' testimony to be less than accurate.5

Also, the introduction of testimony of other attorneys who are experienced in litigating child sexual abuse cases, eliciting from them the various problems they have observed with regard to placing the child in the courtroom to testify in the presence of the defendant, may prove to be beneficial in establishing the need for examining the child witness via "live" closed-circuit television. 6

Introducing the testimony of an expert in the field of videotape equipment and closed-circuit television might effectively support a motion calling for the use of "live" closed-circuit

5 See State v Sheppard (1984) 197 NJ Super 411,484 A2d 1330.

6 See State v Sheppard (1984) 197 NJ Super 411, 484 A2d 1330.

Page 5 of 52

85 61 A.L.R.4th 1155, *2b

television to present the testimony of a certain witness. The expert should explain how the proposed procedure would operate, and perhaps actually demonstrate the proposed procedure before the court.7

[*II] General Principles

[*2.] 5 Trial court possesses inherent power to authorize procedure

CUMULATIVE CASES Cases:

A federal district court in criminal prosecution had inherent power to order form of testimony by television prior to amendment of civil procedural rule governing taking of testimony so as to allow for provision of testimony at trial by television. Fed. Rules Civ. P. 43, 28 U.S.C.A. U.S. v. Gigante, 971 F. Supp. 755 (E.D.N.Y. 1997), aff'd, 166 F.3d 75, 51 Fed. R. Evid. Serv. 1 (2d Cir. 1999).

Trial court had discretion to determine whether important public policy considerations of protecting child witness from harm permitted her to testify via closed-circuit television in her mother's trial for attempted first-degree murder, arson causing personal injury, and aggravated child abuse, arising from with incident in which mother allegedly poured gasoline over child and set child on fire, where child was 15 years old when charged events occurred, child was undeniably impaired both cognitively and emotionally, and it was undisputed that testifying in person before her mother would cause child substantial harm. State v. Tarrago, 800 So. 2d 300 (Fla. Dist. Ct. App. 3d Dist. 2001), reh'g en bane denied, (Dec. 5, 2001).

There are three foundational findings a trial court must make before allowing a child victim witness to testify by closed-circuit television: ( 1) hear evidence and determine use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify, (2) find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant, and (3) find that the emotional distress suffered by the child witness in the presence of defendant is more than de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify. K.S.A. 22-3434. State v. Bejarano, 202 P.3d 39 (Kan. Ct. App. 2009).

Trial court may utilize two-way, interactive video technology to take trial testimony, pursuant to court rule, if: (1) the defendant is either present in the courtroom or has waived the right to be present, (2) there is a showing of good cause, and (3) the parties consent. MCR 6.006(C). People v. Buie, 291 Mich. App. 259, 804 N.W.2d 790 (2011), appeal granted, 489 Mich. 938, 797 N.W.2d 640 (2011).

Trial court's finding in murder prosecution arising from death of defendant's infant daughter as alleged result of child abuse, that victim's two older minor siblings would suffer more than

7 See State v Sheppard (1984) 197 NJ Super 411,484 A2d 1330.

Page 6 of 52

86 61 A.L.R.4th 1155, *2. de minimis emotional strain if forced to testify in presence of defendant and her male cohabitant rather than testifying by closed-circuit television, was sufficiently supported by testimony of court-appointed psychologist who interviewed, tested, and observed siblings. U.C.A.1953, 76-5-109(2)(a), 76-5-203(1); Rules Crim. Proc., Rule 15.5(2). State v. Widdison, 2001 UT 60, 28 P.3d 1278 (Utah 2001).

To some extent, a trial court's decision to allow a witness to testify by video conference is left to the reasonable discretion of the court. Kramer v. State, 2012 WY 69, 277 P.3d 88 (Wyo. 2012).

[*3] Trial court does not possess inherent power to authorize procedure

In the following case, the court held that in the absence of statutory authority, the trial court does not possess the inherent power to substitute examination by closed-circuit television of the state's principal witness for an in-court examination.

In Hochheiser v Superior Court (1984, 2d Dist) 161 Cal App 3d 777, 208 Cal Rptr 273, a criminal trial for lewd conduct with a minor, the court held that in the absence of explicit legislative authority, the trial court lacks the inherent power to promulgate a procedure which substitutes examination of the state's principal witness by closed-circuit television for the long-established in-court examination. The court stated that such a far-reaching innovation in a criminal trial was more appropriately left to the legislature for initial consideration. The court rejected the argument that pursuant to a statute which provided in pertinent part that the court shall exercise reasonable control over the mode of interrogation of a witness so as to make such interrogation as rapid, as distinct, and as effective for the ascertainment of the truth as may be possible, and to protect the witness from undue harassment or embarrassment, the trial court was empowered to order the complaining victims to testify via closed-circuit television, finding that the power conferred upon trial judges was limited to the control of the type and form of questioning of a witness, not the witness' presence or absence in the courtroom. Also, the court rejected the argument that the closed-circuit television procedure was expressly mandated under a statute which provided in substance that in any prosecution for lewd conduct with a minor the trial court shall consider the needs of the child victim and shall do whatever is necessary and constitutionally permissible to prevent psychological harm to the child victim. It was reasoned by the reviewing court that it could not imply from the broad language in the statute that the legislature intended such a fundamental change in the law which would abrogate traditional statutory rights to the presence of the testifying witness in the courtroom with the defendant.

CUMULATIVE CASES Cases:

In prosecution for murder arising out of defendant's stabbing of woman with whom he lived, trial court erred in permitting victim's five-year-old and nine-year-old children to testify on closed circuit television in judge's chambers with both counsel present. Such testimony was

Page 7 of 52

87 61 A.L.R.4th 1155, *3 not authorized by statute permitting testimony of child witnesses via closed circuit television "[i]n prosecutions for aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, or child abuse, or in any action alleging an abused or neglected child," since none of enumerated offenses was involved; children were not victims and action was murder prosecution, not action alleging abuse or neglect. Moreover, testimony was not admissible apart from statute, since legislature had considered issue of protection of child witnesses and had delineated with precision those limited circumstances which, on appropriate findings, would prevail over defendant's right to face-to-face confrontation. State v Nutter (1992) 258 NJ Super 41, 609 A2d 65.

[*4] Testimony not inherent violation of confrontation clause

The following cases support the view that the admission of testimony by a witness who is not present within the courtroom, by means of "live" closed-circuit television, does not constitute an inherent violation of the defendant's right to confront witnesses against him, as guaranteed under the Sixth and Fourteenth Amendments to the United States Constitution and the relevant provisions of certain state constitutions.

KENTUCKY

Commonwealth v Willis (1986, Ky) 716 SW2d 224

MINNESOTA

State v. Sewell, 595 N.W.2d 207 (Minn. Ct. App. 1999), review denied, (Aug. 25, 1999)

MISSOURI

Kansas City v McCoy (1975, Mo) 525 SW2d 336, 80 ALR3d 1203

NEBRASKA

State v Warford (1986) 223 Neb 368, 389 NW2d 575, 61 ALR4th 1141

NEW JERSEY

State v Sheppard (1984) 197 NJ Super 411, 484 A2d 1330

NEW YORK

People v Algarin (1986) 129 Mise 2d 1016, 498 NYS2d 977 People v Henderson (1986) 132 Mise 2d 51, 503 NYS2d 238

In determining whether the use of closed-circuit television to present the testimony of the prosecution's primary witness against the defendant in a child sexual assault case violated the defendant's rights under the confrontation clause as provided for in the Sixth and Fourteenth Amendments to the United States Constitution and the state constitution, the court in State v

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Warford (1986) 223 Neb 368, 389 NW2d 575, 61 ALR4th 1141, recognized that the presentation of such testimony was proper where certain minimal constitutional guidelines were adhered to.

The court in People v Algarin (1986) 129 Mise 2d 1016, 498 NYS2d 977, held that a statute which authorized, but did not require, the examination of emotionally traumatized child victims by live two-way closed-circuit television outside of the physical presence of the defendant, who was charged with multiple counts of rape, sodomy, and sexual abuse, did not violate the defendant's right of confrontation under the Sixth and Fourteenth Amendments of the United States Constitution and the state constitution.

CUMULATIVE CASES Cases:

Confrontation clause of Federal Constitution's Sixth Amendment does not absolutely prohibit a child witness in a child abuse case from testifying against defendant at state criminal trial, outside defendant's physical presence, by one-way closed-circuit television, because (1) face-to-face confrontation with witnesses appearing at trial is not an indispensable element of Sixth Amendment's confrontation guarantee, since (a) in certain narrow circumstances, competing interests, if closely examined, may warrant dispensing with confrontation at trial, and (b) the word "confront," as used in confrontation clause, cannot simply mean face-to-face confrontation, for clause would then, contrary to United States Supreme Court's decisions in prior cases, prohibit admission of any accusatory hearsay statement made by an absent declarant -- a declarant who is as much a "witness against" a defendant as one who actually testifies at trial, (2) this interpretation of confrontation clau~e is consistent with Supreme Court's prior cases holding that other Sixth Amendment rights must be interpreted in context of necessities of trial and the adversary process, and (3) where it is necessary to protect a child witness from trauma that would be caused by testifying in physical presence of defendant, at least where such trauma would impair child's ability to communicate, confrontation clause does not prohibit use of a procedure that, despite absence of face-to-face confrontation, insures reliability of evidence by subjecting it to rigorous adversarial testing, and thereby preserves essence of effective confrontation, given that a state's interest in physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court; thus, to extent that a proper finding of necessity for alleged child abuse victims to testify under a state's statutory one-way closed-circuit television procedure has been made, admission of such testimony is consonant with confrontation clause, where, under statutory procedure, ( 1) determination must be made that such child witness will suffer such serious emotional distress that child cannot reasonably communicate, and (2) all elements of confrontation right, other than face-to-face confrontation, have been preserved by facts that child witnesses testified under oath, were subject to full cross-examination, and were able to be observed as they testified by judge, jury, and defendant. Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666, 30 Fed. R. Evid. Serv. 1 (1990).

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89 61 A.L.R.4th 1155, *4

Although closed-circuit television should not be considered a commonplace substitute for in-court testimony by a witness, two-way closed-circuit television testimony does not necessarily violate the Sixth Amendment, and, upon a finding of exceptional circumstances, a trial court may allow a witness to testify via two-way closed-circuit television when this furthers the interest of justice. U.S.C.A. Const. Amend. 6. U.S. v. Gigante, 166 F.3d 75 (2d Cir. 1999).

In assessing the safeguards for contemporaneous transmissions of testimony, courts focus on whether the testimony was made in open court, under oath, and whether the opportunity for cross examination was available. Fed.Rules Civ.Proc.Rule 43(a), 28 U.S.C.A. F.T.C. v. Swedish Match North America, Inc., 197 F.R.D. 1 (D.D.C. 2000). Allowing child who was not victim to testify by two-way closed-circuit television, in prosecution for torture, second-degree murder, and child abuse causing death, on ground that child, having witnessed crimes committed against her brother, would be traumatized by facing defendant in court, did not violate defendant's rights under Confrontation Clause, in light of state's important public policy interest in protecting minor witnesses from such trauma, whether victims or not. U.S. Const. Amend. 6. People v. Lujan, 211 Cal. App. 4th 1499, 2012 WL 6573078 (2d Dist. 2012). In civil dependency proceeding seeking to have two children declared dependent children, juvenile court had inherent power to order use of one-way closed-circuit television to take testimony of children outside presence of their parents, in order to ensure its truthfulness, notwithstanding absence of any express statutory authorization for such procedure. In re AmberS. (1993, 1st Dist) 15 Cal App 4th 1260, 19 Cal Rptr 2d 404, 93 CDOS 3558, 93 Daily Journal DAR 6087, modif den (Cal App 1st Dist) 93 CDOS 4405 (because case was not criminal prosecution, it did not involve express right of confrontation guaranteed by federal and state constitutions to criminal defendants and, although parent in civil dependency proceeding does have constitutional due process right to confront and examine witnesses, parent did not claim any such violation).

Neither the Confrontation Clause nor the statute relating to testimony of child witnesses via closed-circuit television requires the actual receipt of evidence before permitting a child to testify via that procedure. U.S.C.A. Const.Amend. 6; West's C.R.S.A. § 16-10-402(1)(a)(II); Rules Crim.Proc., Rule 12(b)(4). People v. Ujaama, 2012 COA 36, 302 P.3d 296 (Colo. App. 2012), cert. denied, 2013 WL 2233872 (Colo. 2013). See Rural Hicks-Bey v United States (1994, Dist Col App) 649 A2d 569, § 12[a]. See People v Schmitt (1990, 4th Dist) 204 Ill App 3d 820, 149 Ill Dec 913, 562 NE2d 377, app den (Ill) 156 Ill Dec 567, 571 NE2d 154, § 12[a]. A two-way closed-circuit television arrangement does not compromise a defendant's state constitutional right to meet witnesses face-to-face. West's A.I.C. Const. Art. 1, § 13. Harris v. State, 964 N.E.2d 920 (Ind. Ct. App. 2012).

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In prosecution of defendant for sexual abuse of two daughters of his girlfriend, trial court did not err in allowing victims' brother to be examined via closed-circuit television where child psychologist who evaluated child stated that testifying in defendant's presence would be so traumatic for child that he could not be counted on to give actual truthful testimony; defendant's basic right of confrontation was preserved, while minor was protected. State v Rupe (1995, Iowa) 534 NW2d 442.

In prosecution of juvenile for delinquent act of attempted aggravated rape of five-year-old child, statutory scheme which permitted young victim to testify at trial via closed circuit television, keeping defendant out of victim's sight and hearing, albeit under conditions that enabled him to consult with his attorney during cross examination, would be authorized "when justice requires" and would not be unconstitutional infringement on right of confrontation. State in interest of R.C. (1987, La App 2d Cir) 514 So 2d 759, cert den, stay vac (La) 516 So 2d 128.

See Wildermuth v State (1987) 310 Md 496, 530 A2d 275, motion gr, cert gr (US) 107 LEd 2d 830, 110 S Ct 834, § 12[a].

Defendant's right to confrontation was not violated when trial court allowed part of sexual assault victim's examinati~n to take place by way of closed-circuit television outside of physical presence of defendant and jury where victim: (1) suffered from learning disabilities and psychological trauma stemming from sexual abuse that began when she was two years old; (2) had been attacked in manner so horrible that any individual would be frightened by sight and presence of her attacker; (3) would likely have been unable to testify had she not been sequestered; and (4) would have suffered long-term mental and emotional difficulties from being forced to testify in front of defendant. People v. Burton, 219 Mich. App. 278, 556 N.W.2d 201 (1996).

See State v Crandall (1990) 120 NJ 649, 577 A2d 483, § 12[a].

See People v Rivera (1988) 141 Mise 2d 1031, 535 NYS2d 909, § 12[a].

See People v Cintron (1990) 75 NY2d 249, 552 NYS2d 68, 551 NE2d 561, § 12[b].

See In re Stradford (1995, NC App) 460 SE2d 173, app dismd, review den 341 NC 650, 462 SE2d 525, § 12[a].

See Hightower v State (1987, Tex App Eastland) 736 SW2d 949, § 12[a].

Permitting victim in child molestation prosecution to testify by closed-circuit television, after child was unable to testify in dependent's presence, did not violate defendant's rights to confront witnesses against him, present defense, or have jury trial. State v. Foster, 81 Wash. App. 444, 915 P.2d 520 (Div. 1 1996), review granted, 130 Wash. 2d 1001, 925 P.2d 989 (1996) and aff'd, 135 Wash. 2d 441, 957 P.2d 712 (1998).

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91 61 A.L.R.4th 1155, *5

[*5] Minimal constitutional guidelines; compelling state interest

The courts in the following cases held or recognized that the use of "live" closed-circuit television to present the testimony of a witness who is not physically present within the courtroom may not be in violation of the defendant's right to confront witnesses against him, as guaranteed under the Sixth and Fourteenth Amendments to the United States Constitution, and the relevant provisions of certain state constitutions, where it is shown that there is a compelling state interest or need to protect the witness from emotional injury.

The court in State v Warford (1986) 223 Neb 368, 389 NW2d 575, 61 ALR4th 1141, recognized that closed-circuit television testimony may be admitted without infringing upon a defendant's right of confrontation under the Sixth and Fourteenth Amendments of the United States Constitution and the state constitution, where there is a showing of compelling need to protect the witness from further injury. It was pointed out that there must be a particularized showing on the record that the child witness would be further traumatized or would be intimidated by testifying in the courtroom in front of the defendant, the court adding that without such a showing the use of closed-circuit television would not withstand constitutional scrutiny.

In determining whether to grant the prosecution's motion pursuant to statute for the use of "live" closed-circuit television in transmitting the testimony of the prosecution's primary witness, a child, in a criminal trial for rape, sodomy, and sexual abuse, the court in People v Algarin (1986) 129 Mise 2d 1016, 498 NYS2d 977, weighed the compelling state interest involved with the protection of the emotional well-being of child sex-offense victims and the need for their testimony to insure successful prosecutions against any infringement of the defendant's right of confrontation arising from the Sixth and Fourteenth Amendments of the United States Constitution and similar language found within the state constitution.

Stating that it concurred with the decision in People v Algarin (1986) 129 Mise 2d 1016, 498 NYS2d 977, upholding the constitutionality of a statute which provided for the admission of testimony by a child in a criminal trial for sexual abuse, via "live" closed-circuit television, the court in People v Henderson (1986) 132 Mise 2d 51, 503 NYS2d 238, recognized that the compelling state interest in protecting the emotional well-being of child sex-offense victims more than outweighed the minimal infringement upon the defendant's right of confrontation.

CUMULATIVE CASES Cases:

State's interest in protecting child witnesses from trauma of testifying in child abuse case would be sufficiently important to justify use of state's special procedure, permitting judge to receive by one-way closed circuit television testimony of alleged child abuse victim on determining that child's courtroom testimony would result in child suffering serious emotional distress such that he or she could not reasonably communicate, provided state makes adequate

Page 12 of 52

92 61 A.L.R.4th 1155, *5

showing of necessity in individual case; use of one-way closed circuit television procedure, where it is necessary to further important state interest, would not impinge on confrontation clause's truth-seeking or symbolic purposes. Maryland v. Craig, 497 U.S: 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666, 30 Fed. R. Evid. Serv. 1 (1990).

Under Confrontation Clause, before permitting use of closed-circuit television testimony at trial, court must hear evidence and make specific findings, in context of instant case, that use of television system is required to further important public purpose offered by state. U.S.C.A. Const.Amend. 6. Gentry v. Deuth, 381 F. Supp. 2d 614 (W.D. Ky. 2004), judgment vacated on other grounds, 381 F. Supp. 2d 630 (W.D. Ky. 2004), order made absolute, 381 F. Supp. 2d 634 (W.D. Ky. 2005).

While recognizing that the primary purpose of the confrontation clause is to secure to a defendant the ability to cross-examine witnesses against him, and that this right was not denied defendant in child molestation and sexual abuse case when child victim testified from another room by means of closed-circuit television, court nonetheless found Arizona statute allowing such testimony to be unconstitutional as applied, where lower court failed to require showing or to make finding that there was compelling need to remove prosecution witness from jury's presence, and in effect ignored another purpose of confrontation clause -- the ability to assess demeanor. State v Vess (1988, App) 157 Ariz 236, 756 P2d 333.

Before permitting a witness to testify via two-way videoconference, the trial court must make a case-specific determination that the denial of the defendant's confrontation right is necessary to further an important public interest; if the trial court finds such an interest, it must ensure the rel~ability of the remote testimony. U.S.C.A. Const.Amend. 6. State v. Rogerson, 2014 WL 5394488 (Iowa 2014).

Trial court did not abuse its discretion during child molestation trial when it found that the content of mental health counselor's testimony was sufficient to support a finding of compelling need for each child, for purposes of statute allowing alleged victims of illegal sexual activity who are 12 years of age or younger to testify through closed circuit television or taped video. KRS 421.350. Kurtz v. Com., 172 S.W.3d 409 (Ky. 2005).

See Wildermuth v State (1987) 310 Md 496, 530 A2d 275, motion gr, cert gr (US) 107 LEd 2d 830, 110 S Ct 834, § 12[a].

See Commonwealth v Bergstrom (1988) 402 Mass 534, 524 NE2d 366, § 12[b].

See People v Cintron (1990) 75 NY2d 249, 552 NYS2d 68, 551 NE2d 561, § 12[b].

Under New York statute, child sexual abuse victim could testify by closed-circuit TV only if court held testimonial hearing to determine child's vulnerability and court made finding that clear and convincing evidence showed that severe mental or emotional harm would ensue if child was compelled to testify in presence of accused; absent such hearing, child could not be

Page 13 of 52

93 61 A.L.R.4th 1155, *5

allowed to testify by closed-circuit TV. People v Rivera (1990, 1st Dept) 160 App Div 2d 439, 554 NYS2d 125, app den 76 NY2d 795, 559 NYS2d 1000, 559 NE2d 694. When permitting a child witness to testify via closed circuit television (CCTV), the trial judge must find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; denial of face-to-face confrontation is not needed to further the state interest in protecting the child witness from trauma unless it is the presence of the defendant that causes the trauma. Code 1976, § 16-3-1550(E). State v. Bray, 342 S.C. 23, 535 S.E.2d 636 (2000).

[*6] Infringement minimally intrusive

In the following case, the court recognized that the admission of testimony by a witness who is not present within the courtroom, by means of closed-circuit television, may not be in violation of the defendant's right to confront witnesses against him, if it is shown that infringement of the confrontation clause caused by the presentation of such testimony is as minimally intrusive as possible. The court in State v Warford (1986) 223 Neb 368, 389 NW2d 575, 61 ALR4th 1141, in determining whether the use of closed-circuit television to present the testimony of the prosecution's primary witness against the defendant in a child sexual assault case violated the defendant's rights under the confrontation clause as provided for in the Sixth and Fourteenth Amendments to the United States Constitution and state constitution, recognized that the state must establish that the actual use of such a new evidentiary tool would be as minimally intrusive as possible. CUMULATIVE CASES Cases: See People v Cintron (1990) 75 NY2d 249, 552 NYS2d 68, 551 NE2d 561, § 12[b].

[*7] Private communication between defendants and counsel

The court in the following case recognized that the admission of testimony by a witness who is not present within the courtroom, by means of closed-circuit television, may not be in violation of the defendant's right to confront witnesses against him, providing that it is possible for the defendant to communicate privately with his attorney during the witness' testimony. In determining whether under the particular circumstances the use of closed-circuit television to present the testimony of the prosecution's primary witness against the defendant in a child sexual assault case violated the defendant's rights under the confrontation clause as provided for in the Sixth and Fourteenth Amendments to the United States Constitution and state constitution, the court in State v Warford (1986) 223 Neb 368, 389 NW2d 575, 61 ALR4th 1141, recognized that in order for the presentation of such testimony to avoid being unconstitutional, the defendant must be able to communicate with his attorney at all times during the witness' testimony.

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94 61 A.L.R.4th 1155, *7

CUMULATIVE CASES Cases:

See State v Davis (1988) 229 NJ Super 66, 550 A2d 1241, § 12[a].

[*8] Proper transmission of image

In the following cases, the courts held or recognized that the admission of testimony by a witness who is not present within the courtroom, by means of "live" closed-circuit television, may not be in violation of the defendant's right to confront witnesses against him, providing that the cameras are focused in such a way as to provide the jury with a clear image of the witness, examiner, or anyone else present within the examination room. Recognizing that in some instances a child could testify by means of videotape and closed-circuit television, against a defendant who was charged with first-degree sexual assault, without infringing upon the defendant's right to confront the witnesses against him, the court in State v Warford (1986) 223 Neb 368, 389 NW2d 575, 61 ALR4th 1141, stated that for such testimony to be admissible the camera used at trial to record the examination of the witness must show a complete view of the witness and the examiner. The court said that the camera should be so situated that persons viewing the examination in the courtroom would be able to see the witness, the examiner, and any other person (other than the cameraman) present in the room where the examination was being conducted.

In determining whether the use of "live" closed-circuit television in transmitting the testimony of the prosecution's primary witness, a child, in a criminal trial for rape, sodomy, and sexual abuse, violated the defendant's right of confrontation under the Sixth and Fourteenth Amendments of the United States Constitution and the state constitution, the court in People v Algarin (1986) 129 Mise 2d 1016, 498 NYS2d 977, recognized that the closed-circuit television procedure to be used must be capable of providing the opportunity to observe the witness' demeanor by providing clear and accurate sounds and images to the defendant, the judge, the jury, and the public. CUMULATIVE CASES Cases:

See Commonwealth v Bergstrom (1988) 402 Mass 534, 524 NE2d 366, § 12[b].

Any distortion in prosecution witness' testimony via interactive television (lTV) by occasional transitory and insignificant static-type interference with video image and slight time delay between questions and answers did not preclude effective cross-examination or interfere with jury's assessment of witness' demeanor. State v. Sewell, 595 N.W.2d 207 (Minn. Ct. App. 1999), review denied, (Aug. 25, 1999).

See State v Davis (1988) 229 NJ Super 66, 550 A2d 1241, § 12[a].

See People v Rivera (1988) 141 Mise 2d 1031, 535 NYS2d 909, § 12[a].

Page 15 of 52

95 61 A.L.R.4th 1155, *9

[*9] Impressing upon witness seriousness of testimony

The court in the following case recognized that the admission of testimony by a witness who is not present within the courtroom, by means of "live" closed-circuit television, may not be in violation of the defendant's right to confront the witnesses against him, where the manner in which the witness' testimony is transmitted to the courtroom instills in the witness a sense of the seriousness of the testimony.

Determining whether the use of "live" closed-circuit television in transmitting the testimony of the prosecution's primary witness, a child, in a criminal trial for rape, sodomy, and sexual abuse, infringed upon the defendant's right of confrontation under the Sixth and Fourteenth Amendments of the United States Constitution and the state constitution, the court in People v Algarin (1986) 129 Mise 2d 1016, 498 NYS2d 977, recognized that the admission of such testimony was constitutional where the closed-circuit television procedure was capable of impressing upon the witness the seriousness of the matter, to thus insure truthfulness.

[*10] Testimony not inherent violation of separation of powers doctrine In the following case, the court held that a state statute which allowed the use of closed-circuit television cameras to present testimony in a criminal sexual abuse case of a victim under the age of 12, did not violate the separation of powers doctrine provided under the state constitution. In Commonwealth v Willis (1986, Ky) 716 SW2d 224, a criminal action for two counts of first-degree sexual abuse, the court reversed an order denying a request to ~ake the testimony of a 5-year-old sexual abuse victim pursuant to a state statute which permitted the use of television cameras to present the testimony in a sexual abuse case of a victim under the age of 12, holding that the statute did not violate the separation of powers doctrine as enunciated in the state constitution. The court determined that because the statute provided the trial court judge with total discretion as to the use of the provisions of law, there was no invasion of any judicial power.

[*11] Codes of responsibility

In the following case, the court held that the admission of testimony by a witness who is not present within the courtroom, by means of "live" closed-circuit television, does not violate provisions of the Code of Professional Responsibility, which prohibits publicity or public advertising by a lawyer calculated to attract clients, or the Code of Judicial Conduct, which prohibits the televising of court proceedings, since the use of such television to present the evidence was not the type of television proscribed by either of the codes. The court in Kansas City v McCoy (1975, Mo) 525 SW2d 336, 80 ALR3d 1203, an appeal from a conviction for possession of marijuana in violation of a municipal ordinance, held that the admission into evidence of an expert witness' testimony, presented over closed-circuit television, as to the nature of the substance found in the defendant's possession, did not violate

Page 16 of 52

96 61 A.L.R.4th 1155, *11

a provision of the Code of Professional Responsibility (DR 2-101) which banned publicity or public advertising by a lawyer calculated to attract clients or a provision of the Canon 3(A)(7) of the Code of Judicial Conduct prohibiting the televising of court proceedings. Observing that the closed-circuit television was not available for general view by the public, the court held that the type of projection of the counsel's image and voice employed in the case was not the type of "television" proscribed by either the Code of Professional Responsibility or the Code of Judicial Conduct, the latter of which, the court noted, provided that a trial judge might authorize the use of electronic and photographic means for the presentation of evidence.

[*11.] 5 As alternative to in-court screen to block view

The following authority considered the use of closed-circuit television witness examination as an alternative to an in-court screen blocking the witness's view of the defendant.

CUMULATIVE CASES Cases:

Placement of large white screen between victim and defendant while victim testified in open court to the charged acts denied defendant a fair trial on charges of battery and lewd and lascivious molestation of a child under the age of 12; statute authorizing use of closed circuit television to shield a minor victim from contact with a defendant did not authorize the shielding method employed by trial court, and that method was inherently prejudicial. West's F.S.A. § 92.54(1). Overholt v. State, 110 So. 3d 530 (Fla. 4th DCA 2013).

Screen placed in courtroom to block defendant and child victim from seeing each other during victim's testimony at trial for sexual assault, which was inherently prejudicial to defendant's right to a fair trial, was not justified by an essential state interest specific to defendant's trial, even though protection of children from harm was a compelling state interest, and there was testimony that victim could suffer serious psychological harm if forced to view defendant face to face; trial court had available another equally effective method of protecting victim that would not have been inherently prejudicial to defendant, specifically the use of videotaped or closed-circuit television procedures. Neb.Rev.Stat. § 29-1926. State v. Parker, 276 Neb. 661, 757 N.W.2d 7 (2008).

[*III] Admissibility of Testimony by Particular Witnesses

[*12] Children or minors [*12a] Held to be constitutional

In the following criminal cases involving the prosecution for sexual abuse of a minor, it has been held that the admission into evidence of a child witness' testimony, presented "live" by means of closed-circuit television, did not violate the defendant's right of confrontation, as guaranteed under the Sixth and Fourteenth Amendments to the United States Constitution and certain state constitutions.

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In State v Sheppard ( 1984) 197 NJ Super 411, 484 A2d 1330, a criminal trial for sexual assault of a minor, the court held that the planned video arrangement for presenting the testimony of the child victim did not violate the defendant's right of confrontation under the Sixth Amendment of the United States Constitution and the relevant provision of the state constitution. The prosecution proposed at the time of trial to place the child, the prosecuting attorney, defense counsel, and a cameraman in a room near the courtroom, which was equipped with video and audio systems; that the defendant, judge, jury, and public would remain in the courtroom and see and hear the child's testimony through monitors placed appropriately in the courtroom; and that private communication between the defendant and his attorney would be possible through an audio connection. At the hearing to determine whether to grant the prosecution's application for closed-circuit television testimony, the prosecution offered several expert witnesses in support of the application. A forensic psychiatrist testified that the avoidance of an in-court appearance through the use of video equipment would improve the accuracy of the child's testimony, because the child, when placed in the courtroom setting with the accused present, might become fearful, guilty, anxious, and traumatized, and thus the truthfulness of her testimony would be mitigated. Two attorneys with substantial experience in the prosecution of child sexual abuse cases testified to the difficulties associated with the child victim testifying, pointing out that in most of the cases they handled the emotional condition of the child prevented him or her from testifying and thus most cases resulted in generous plea agreements. The final witness for the prosecution was a video expert, who testified that the video equipment to be used at the trial of this matter would provide instant transmission of images and voices from a remote room to the courtroom, providing more than acceptable clarity. Stating that the confrontation clause was not implacable in its demands, and might be subject to exceptions, the court concluded that the use of videotaped testimony in the present case was permissible, since it was accepted fact that only a modest erosion of the clause, if any, would take place. The court explained that tht; child, through the use of video, would not be obliged to see the defendant or to be exposed to the usual courtroom atmosphere, but nevertheless, the defendant as well as the judge, the jury, and the spectators, would be able to hear her clearly, and that an adequate opportunity for cross-examination would be provided. Moreover, it was noted that the trial court possessed broad discretion in determining the proper limitations of cross-examination of a witness, and that in the present case there would be no curtailment of cross-examination, only a restriction upon the means of transmitting questions and answers. Furthermore, the court expressed the view that no rule requires eye contact between the defendant and the witness testifying against him, and that sometimes eye contact is not possible even in the courtroom due to the distances involved. The reviewing court concluded that despite the fact that the child had stated that she could testify, the concern which the trial court had for her, and for all children, dictated a different course, when that course would not significantly impair the rights of the defendant. Additionally, it was determined that the defendant had waived his right of confrontation by threatening to kill the child victim if she revealed that he had sexually abused her. Ruling that a statute which authorized, but did not require, the examination of emotionally traumatized child victims by "live" two-way closed-circuit television outside the physical

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presence of the defendant, who in the present case was charged with multiple counts of rape, sodomy, and sexual abuse, did not violate the defendant's right of confrontation under the Sixth and Fourteenth Amendments of the United States Constitution and the state constitution, the court in People v Algarin (1986) 129 Mise 2d 1016, 498 NYS2d 977, reasoned that under the circumstances the use of "live" two-way closed-circuit television was an acceptable method of balancing the interests of the children and the rights of the defendant while at the same time affording the jury the maximum opportunity to ascertain the truth by listening to the witnesses and observing their demeanor. Pursuant to statute, the following procedure was utilized upon a determination that a particular child was a vulnerable child witness: a "testimonial" room for conducting the examination of the child witness was set up in the robing room located immediately behind and connected to the main courtroom; in addition to the child witness, the attorneys for the prosecution and one attorney for the defense were also within the "testimonial room"; the other defense attorney was seated beside the defendant at the counsel table in the courtroom; the image and voice of the child witness, as well as those of the attorneys, were transmitted live by means of closed-circuit television to the courtroom, where the judge, jury, defendant, his other attorney and the public could listen to the testimony and observe the demeanor of the witness, and simultaneously, the voice of the judge as well as the images of the jury and the defendant were transmitted to the "testimonial room"; and a two-way private communication system was set up from the defense table in the courtroom to the "testimonial room" so that immediate conversations could take place among the defendant and his attorneys. The court rejected the argument that in order to satisfy the confrontation clause the defendant must be given the opportunity to physically confront the witness against him, stating that while a literalistic reading of the confrontation clause would entitle the defendant to confront every witness against him in person in court, an adequate opportunity for cross-examination-satisfied the clause even in the absence of physical confrontation, and that the confrontation guaranteed ~y the clause was not necessarily one in a courtroom. Moreover, the court found that it was demonstrated that the closed-circuit television equipment used in the case at bar had the capacity to present clear and accurate sounds and images. The court reasoned that since it had been held that videotape testimony was sufficiently similar to live testimony to permit the jury to properly perform its function, 8 then instantaneous closed-circuit television must surely satisfy the dictates of the confrontation clause. It was further reasoned by the court that even if it was assumed that the operation of the statute resulted in some diminution of the right of confrontation, nearly every authority acknowledged that this right, though expressed in absolute terms, was subject to exceptions. Observing that it has been held that safeguarding the psychological well-being of a minor and protecting minors who have been victims of sex crimes from further trauma and embarrassment were "compelling" state interests,9 the court concluded that in the present case, the compelling state interests involved with the protection of the emotional well-being of child sex-offense victims and the need for their testimony to insure successful prosecutions more than outweighed any infringement of

8 See People v Moran, (1974, 1st Dist) 39 Cal App 3d 398, 114 Cal Rptr 413.

9 See Globe Newspaper Co. v Superior Court for County of Norfolk (1982) 457 US 596, 73 LEd 248, 102 S Ct 2613, 8 MediaL R 1689.

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the defendant's right of confrontation arising out of the selective utilization of closed-circuit television.

CUMULATIVE CASES Cases:

In determining whether a state has made an adequate showing of the necessity of using a special procedure which permits a child witness in a child abuse case to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant, without a violation of the confrontation clause of the Federal Constitution's Sixth Amendment -- which clause provides that, in all criminal prosecutions, the accused has the right to be confronted with the witnesses against the accused -- a trial court's requisite finding of necessity must be a case-specific one; where the special procedure involves testimony by one-way closed-circuit television, the trial court must (1) hear evidence and determine whether use of the closed-circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify, and (2) if the court is to find the procedure necessary, find that (a) the child witness would be traumatized not by the courtroom generally, but by the presence of the defendant, and (b) the emotional distress suffered by the child witness in the presence of the defendant would be more than mere nervousness or excitement or some reluctance to testify. Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666, 30 Fed. R. Evid. Serv. 1 (1990).

In prosecution under New York law for sodomy, sexual abuse, and endangering the welfare of a child, defendant's right to confront witnesses was not infringed by use of two-way closed circuit television during minor's testimony; trial court made a sufficient showing of necessity justifying use of procedure in best interests of child witness. U.S. Canst. Amend. VI. Jelinek v. Costello, 247 F. Supp. 2d 212 (E.D. N.Y. 2003).

Permitting 12-year-old kidnapping victim to testify via two-way closed circuit television did not violate defendant's right of confrontation, where district court's in camera interview with victim and expert testimony indicated that victim was afraid of defendant and would be traumatized if required to testify in defendant's presence, and jury was instructed not to consider fact that child testified by closed circuit television. U.S.C.A. Canst. Amend. 6; 18 U.S.C.A. § 3509(b)(1)(B)(ii). U.S. v. Weekley, 130 F.3d 747, 1997 FED App. 348P (6th Cir. 1997).

Compelling circumstances justified minor child's testimony by live two-way closed-circuit television rather than in open court in action against child's biological father for outrage and battery based on biological father's alleged sexual abuse of child, where district court examined child and concluded it would be too traumatic to have her testify in the courtroom. Fed.Rules Civ.Proc.Rule 43, 28 U.S.C.A. Parkhurst v. Belt, 567 F.3d 995 (8th Cir. 2009).

Allowing child abuse victim to testify from outside the courtroom via closed circuit television did not violate defendant's Sixth Amendment rights; defendant was representing himself which

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meant victim would be subjected not only to defendant's presence in courtroom, but also to his questioning her, face to face, about traumatic events and victim's therapist testified about psychological trauma to victim from personal contact with defendant. U.S.C.A. Const.Amend. 6. U.S. v. Brown, 528 F.3d 1030 (8th Cir. 2008).

Findings that three alleged victims of child sexual abuse were unable to testify in open court in defendants' presence ''because of fear," thus meeting statutory requirement for testimony by closed-circuit television, were not clearly erroneous where: ( 1) 5-year-old girl could not speak when called to testify, and stated in chambers that she was afraid to speak in front of her uncles; (2) 6-year-old was found sobbing outside courtroom and affirmed in chambers that she was crying out of fear of her uncles; (3) 9-year-old was so fearful before testifying that guardian ad litem would have had to pull her into courtroom; and (4) children's therapist testified that victims believed "if they walked in the courtroom today that their uncles would attack them." U.S. v. Rouse, 111 F.3d 561, 46 Fed. R. Evid. Serv. (LCP) 559 (8th Cir. 1997), reh'g and suggestion for reh'g en bane denied, (May 29, 1997) and cert. denied, 118 S. Ct. 261, 139 L. Ed. 2d 188 (U.S. 1997).

Record established need for 8-year-old victim of sexual abuse to testify by closed-circuit television where: (1) child's guardian said that child expressed fear of being in same room as defendant during trial; (2) child's counsel testified that child had said that if defendant were in courtroom when child went there to testify, child would run out of room and that child would probably not be able to tell jury and full courtroom about abuse; and (3) child's foster mother testified that child began to wet and soil his pants, would not sleep without light, and would check all windows and doors to make sure they were locked. LaBayre v. State of Iowa, 97 F. 3d 1061 (8th Cir. 1996), cert. denied, 117 S. Ct. 1003, 136 L. Ed. 2d 882 (U.S. 1997).

In prosecution for aggravated sexual abuse of defendant's six-year old daughter, in which victim testified by means of two-way closed circuit television, placement of television monitor behind and to victim's left, rather than in her field of vision as she testified, did not violate defendant's rights under Confrontation Clause; monitor was large, and positioned so that victim could easily see it from where she sat and its presence was called to her attention, and jury was able to observe whether victim looked at monitor during her testimony. U.S.C.A. Const. Amend. 6; 18 U.S.C.A. §§ 224l(c), 3509(b)(1). U.S. v. Etimani, 328 F.3d 493 (9th Cir. 2003).

In prosecution for murder of daughter, son was properly allowed to testify by closed circuit television where court considered expert testimony as to likely effect of testifying and concluded child would be unable to testify in open court due to presence of defendant and would suffer emotional trauma from testifying. United States v Quintero (1994, CA9 Ariz) 21 F3d 885, 94 CDOS 2436, 94 Daily Journal DAR 4651.

In prosecution for sexual abuse involving two young girls aged 8 and 7, District Court's order allowing child witnesses to testify by closed-circuit television was supported by its findings

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that, from observing children and hearing testimony of licensed counselor, court did not believe they would be able to testify in courtroom, and that, as counselor testified, there was substantial likelihood of emotional trauma, characterized as severe, that would result. Trial court's findings satisfied requirements of 18 U.S.C.A. § 3509 (b)(1)(B), which authorizes two-way closed-circuit television testimony in child abuse cases under certain circumstances, and constitutional requirements of Maryland v Craig. Together, statute and Craig require case-specific finding that closed-circuit television testimony is necessary for child because child would suffer more than de minimis fear or trauma, and in fact would be unable to testify because of such fear or trauma, brought on by physical presence of defendant. United States v Carrier (1993, CAlO Wyo) 9 F3d 867, cert den (US) 62 USLW 3691.

Under the Child Victims' and Child Witness' Rights Act, district court did not violate defendant's right of confrontation under Sixth Amendment by allowing her 13-year-old daughter to testify by closed-circuit television in defendant's trial for producing and possessing pornographic images of daughter; daughter's counselor testified that daughter said she was scared to go to court, that daughter exhibited such fear through engaging in self-mutilation, panicking at sound of defendant's voice, and obsessing about her proximity to defendant in courtroom, and that daughter's distress and anxiety exceeded that of any other child that she had counseled. U.S.C.A. Const.Amend. 6; 18 U.S.C.A. § 3509(b)(l)(B). U.S. v. Fee, 491 Fed. Appx. 151 (11th Cir. 2012).

In prosecution of father for sexual abuse of 9-year-old daughter, victim's testimony by closed-circuit television was proper where judge considered chronological age, developmental level, and degree of emotional and psychological injury that she had already suffered and would likely suffer if forced to testify in court. Reutter v State (1994, Alaska App) 886 P2d 1298.

State statute properly allowed child victim of sexual abuse to testify via videotape. Curtis v State (1990) 301 Ark 208, 783 SW2d 47.

Allowing child who was not victim to testify by two-way closed-circuit television, in prosecution for torture, second-~egree murder, and child abuse causing death, on ground that child, having witnessed crimes committed against her brother, would be traumatized by facing defendant in court, did not violate defendant's rights under Confrontation Clause, in light of state's important public policy interest in protecting minor witnesses from such trauma, whether victims or not. U.S. Const. Amend. 6. People v. Lujan, 211 Cal. App. 4th 1499, 2012 WL 6573078 (2d Dist. 2012).

Evidence that child victim would suffer great emotional distress if forced to testify, to the point that she might not be able to provide a useful account of events for the jury, did not violate defendant's Confrontation Clause rights and was sufficient to support order allowing victim to testify via closed-circuit television at trial for unlawful sexual intercourse with a minor 10 years old or younger; social worker's considered opinion, reached after conversations with the

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victim, was that the victim would be impaired, and opinion of victim's mother, even if based on instinct, buttressed the social worker's view in that she knew her daughter best. U.S.C.A. Const.Amend. 6; West's Ann.Cal.Penal Code§§ 288.7, 1347. People v. Powell, 194 Cal. App. 4th 1268, 2011 WL 1601756 (6th Dist. 2011).

Trial court did not violate defendant's federal confrontation clause rights by allowing child witness to testify via closed-circuit television (CCTV), in prosecution for first degree murder, child abuse resulting in death, and tampering with physical evidence; child's therapist testified tha~ child would be traumatized psychologically if he were made to testify in front of defendant, child testified via CCTV from the court's chambers, defense counsel was present in chambers, the court and the prosecution helped the jury see and hear child during his testimony, the court allowed defense counsel to cross-examine child fully, and defendant had two-way communication with counsel during direct and cross-examination. U.S.C.A. Const.Amend. 6; West's C.R.S.A. § 16-10-402. People v. Phillips, 2012 COA 176, 315 P.3d 136 (Colo. App. 2012).

Evidence supported trial court's determination that having ten-year-old victim testify in front of defendant, who was her mother, would cause her emotional distress that would render her unable to reasonably communicate, as necessary to justify having victim testify via closed-circuit television outside defendant's physical presence, in prosecution for sexual assault on a child and other offenses; social worker who provided therapy to victim testified that it would traumatize victim greatly to testify in defendant's physical presence, and that 70 to 80 percent of victim's trauma in testifying in defendant's physical presence would be associated with seeing defendant, and having to testify in front of defendant. West's C.R.S.A. § 16-10-402. People v. Rodriguez, 209 P.3d 1151 (Colo. App 2008), cert. granted, (June 22, 2009).

Evidence that victims of sexual assault, five and three years old at time of assault, had been threatened with violent harm by defendant and were "deathly afraid" of him was clear and convincing evidence of need to videotape victims' testimony outside presence of defendant in order to preserve accuracy and reliability of victims' testimony, and such videotaping therefore did not violate defendant's federal and state constitutional rights to confront witnesses against him or to due process of law. U.S.C.A. Canst. Amends. 5, 6, 14; C.G.S.A. Canst. Art. 1, § 8; C.G.S.A. § 54-86g. State v. Alterisi, 47 Conn. App. 199, 702 A.2d 651 (1997).

In prosecution for sexual assault and risk of injury involving 6-year-old child, court properly allowed child to testify outside defendant's presence, even though court failed to use talismanic words "compelling need," where record clearly showed court engaged in proper inquiry before making necessary finding. State v Ells (1995) 39 Conn App 702, 667 A2d 556, app den 235 Conn 940, 669 A2d 577.

Given that the core evidence of neglect included testimony about the mother's fear-inducing threats to, and extreme physical discipline of, fifteen-year-old child and about trauma the child suffered as a result, mother did not have right to be present in person for child's testimony at

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the neglect hearing and, instead, it was sufficient that child testified before the judge while her mother watched and listened via closed-circuit television with an opportunity for cross-examination. In re K.S., 966 A.2d 871 (D.C. 2009).

Taking five-year-old sexual abuse victim's testimony by way of closed circuit television during prosecution and after victim had already begun her testimony was not error; unsuccessful attempt to get courtroom testimony was added assurance that welfare of victim permitted, if not compelled, remote testimony, and by beginning testimony in courtroom in defendant's presence, trial court at least attempted to afford usual trial confrontation before deciding to use closed circuit television. Williams v. U.S., 859 A.2d 130 (D.C. 2004).

Defendant's confrontation rights were not violated when the trial court allowed child victim to testify outside the presence of defendant, during sexual abuse prosecution; trial court found that allowing the victim to testify via closed circuit television was necessary due the victim's · continued fear of testifying in front of defendant, the fact that the victim ran away and spent the night on the street rather than go to court and testify, and the fact that child victim was experiencing psychological trauma from testifying in front of defendant, her father. U.S.C.A. Const.Amend. 6. Ahmed v. U.S., 856 A.2d 560 (D.C. 2004).

In prosecution of defendant for carnal knowledge and of taking indecent liberties with minor victim, and despite absence of statute go_verning the matter, trial court did not violate defendant's right to confrontation of witnesses when it allowed victim to testify at trial over closed-circuit television, where trial court had found that (1) victim would be traumatized by presence of defendant in courtroom, and emotional distress suffered by victim in his presence was more than de minimis, (2) victim was withdrawn, hesitant, and slow in answering at time of initial hearing, in presence of defendant, and (3) when defendant was placed behind one- or two-way glass panel in second phase of hearing to determine victim's competency to testify, victim did testify and stated that she was afraid of defendant. Rural Hicks-Bey v United States ( 1994, Dist Col App) 649 A2d 569.

In prosecution for sexual battery on child, trial court erred in allowing 5-year-old victim to testify via closed-circuit television without first making case-specific findings as to justification for such departure from normal procedure, as required by statute; by implication, however, admission of such testimony by child witness would not infringe defendant's constitutional right to confrontation if statutory requirements were met. Hopkins v. State, 632 So. 2d 1372 (Fla. 1994), reh'g denied, (Mar. 31, 1994).

Trial court's denial of defendant's request to have child victim testify in the presence of the jury was not an abuse of discretion, in prosecution for sexual battery on a person less than twelve years of age and lewd and lascivious molestation; psychologist testified that child would suffer considerable trauma from both testifying in court and testifying in the presence of defendant, child's testimony was presented by closed circuit television, and the closed circuit television allowed the jury to observe the demeanor of victim in making its credibility

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determinations. U.S.C.A. Const.Amend. 6; West's F.S.A. § 92.54. Cann v. State, 958 So. 2d 545 (Fla. Dist. Ct. App. 4th Dist. 2007).

In proceeding to terminate mother's parental rights, mother was not deprived of her due process right to confront witnesses when court permitted children to testify via closed circuit television; psychologist testified that children's post traumatic stress syndrome could be worsened unless they were permitted to testify via closed circuit, and mother had opportunity to hear testimony, see witnesses, and consult with her counsel. U.S.C.A. Canst. Amend. 14. In Interest ofC.W.D., 232 Ga. App. 200,501 S.E.2d 232 (1998), reconsideration denied, (Apr. 14, 1998) and cert. denied, (Sept. 18, 1998).

Trial court's findings with respect to minor victim's inability to testify in the courtroom in defendant's presence were sufficient to support its order permitting victim to testify outside the courtroom via closed-circuit television, in accordance with statute governing testimony of child victims; although trial court did not invoke the precise and complete statutory language that child would have suffered severe emotional distress likely to cause her to suffer severe adverse effects, its abbreviated finding that victim would suffer serious emotional distress was sufficient. S.H.A. 725 ILCS 5/106B-5(a)(2). People v. Bryant, 909 N.E.2d 391 (Ill. App. Ct. 4th Dist. 2009). ·

Testimony of child protection investigator that if child, who was victim of sexual abuse, were to testify in front of defendant, who was his grandfather, child would believe that he was betraying defendant and that if child were forced to testify in front of defendant, child could suffer such emotional distress that he would be unable to reasonably communicate was sufficient to justify allowing the child to testify via closed circuit television, pursuant to Child Shield Act, where court conducted case-specific inquiry, and nothing in the record contradicted protection worker's opinion. S.H.A. 725 ILCS 5/106B-5 et seq. People v. VanBrocklin, 293 Ill. App. 3d 156, 227 Ill. Dec. 637, 687 N.E.2d 1119 (2d Dist. 1997), reh'g denied, (Dec. 24, 1997) and appeal denied, 178 Ill. 2d 594, 232 Ill. Dec. 852, 699 N.E.2d 1037 (1998).

In prosecution for aggravated criminal sexual abuse, six-year-old victim was properly allowed to testify by means of closed circuit television, under rule permitting procedure if child will suffer emotional distress, where child's mother testified she felt child could not testify in courtroom in front of jurors because child was very shy and embarrassed, and that child could not communicate verbally with state's attorney during their first two meetings. People v. Scott, 284 Ill. App. 3d 336, 219 Ill. Dec. 868, 672 N.E.2d 376 (4th Dist. 1996).

In prosecution for aggravated criminal sexual assault involving defendant's five-year-old daughter, trial court did not deprive defendant of fair trial and his constitutional rights by determining that it was in victim's best interests to testify by closed-circuit television, and permitting her to testify by closed-circuit television from judge's chambers, despite defendant's claim that court's conclusion was based solely on presumption that certain class of witnesses would be traumatized if required to testify in open court. Although investigator for department

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of children and family services did comment on how children in general react to testifying in sexual abuse cases, he also specifically testified that he was familiar with victim and that, in his opinion, she would react negatively to testifying in open court before 12 strangers. Moreover, court protected defendant's right to fair trial by describing to jury portions of victim's behavior that jury could not observe on television monitor. Additionally, court also complied with all statutory requirements. Court initially determined use of closed-circuit television was in victim's best interests, and defendant was permitted to be present in chambers while victim testified and was afforded opportunity to fully cross-examine. Finally, none of state's evidence pertaining to victim's best interest was contradicted. People v Ely (1993, 5th Dist) 248 Ill App 3d 772, 188 Ill Dec 651, 618 NE2d 1221.

In prosecution for criminal assault, victim, who was 10-year-old adopted daughter, was properly allowed to testify on closed circuit television where expert testimony was adequate to support finding that child would suffer severe emotional distress likely to cause her to suffer severe adverse effects. Statute was not unconstitutionally vague by use of specified terms since they were commonly used words with ordinary an~ popularly understood meanings. People v Weninger (1993, 3d Dist) 243 Ill App 3d 719, 183 Ill Dec 224, 611 NE2d 77.

In prosecution for criminal sexual assault, trial court properly permitted nine-year-old victim to testify via closed circuit television from judge's chambers, in presence of prosecutor, defense counsel, defendant, judge, and victim's mother, while testimony was transmitted instantaneously to courtroom for jury to view. Testimony did not violate defendant's right of confrontation where defendant was afforded face-to-face confrontation with witness and opportunity to cross-examine him. Jury was also given adequate opportunity to assess witness' demeanor. Further, pursuant to state statute, state was not required to show that closed circuit procedure was "necessary," but rather, that procedure was in "best interest of child." People v Schmitt (1990, 4th Dist) 204 Ill App 3d 820, 149 Ill Dec 913, 562 NE2d 377, app den (Ill) 156 Ill Dec 567, 571 NE2d 154.

Allowing child victim to testify at trial via closed-circuit television did not deny defendant his right to confrontation under federal or state constitution; despite fact that victim was not physically present in the courtroom, defendant conducted a lengthy cross-examination of defendant during trial, defendant could see his accuser, and she could see him and the jury. U.S.C.A. Const.Amend. 6; West's A.I.C. Const. Art. 1, § 13; West's A.I.C. 35-37-4-8. Harris v. State, 964 N.E.2d 920 (Ind. Ct. App. 2012).

See State v Rupe (1995, Iowa) 534 NW2d 442, § 4.

See State v Eaton (1989) 244 Kan 370, 769 P2d 1157, § 12[b].

Substantial evidence supported trial court's findings in support of its order permitting child victim to testify via closed-circuit television, rather than in person before defendant in the courtroom, and, thus, defendant's right of confrontation was not violated, in prosecution for

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rape and aggravated indecent liberties with a child; child victim's psychotherapist and her social worker testified that if child victim, who was unable to testify at defendant's first trial, which resulted in a hung jury, was required to again testify in court before defendant, it could be very traumatizing to child victim, and trial judge had benefit of observing child victim's terror on witness stand during defendant's first trial, and recalled difficulty she had testifying at first trial. U.S.C.A. Const.Amend. 6; K.S.A. Const.Bill of Rights, § 10; K.S.A. 22-3434. State v. Bejarano, 202 P.3d 39 (Kan. Ct. App. 2009). Defendant was not deprived of his constitutional right to confrontation, when child who was alleged victim of rape and indecent liberties was allowed to testify by closed-circuit television; trial court found that victim would "shut down" in court because of defendant's presence, and would be prevented from communicating reasonably with counsel and the jury. U.S. Const. Amend. VI; K.S.A. 22-3434. State v. Spurlock, 52 P.3d 371 (Kan. Ct. App. 2002).

For purposes of statute allowing admission of videotaped testimony of a child victim, trial court must make individualized finding that in-court, face-to-face testimony by child victim would so traumatize the child as to render the child unavailable, or would prevent the child from reasonably communicating. K.S.A. 22-3433. State v. Correll, 25 Kan. App. 2d 770, 973 P.2d 197 (1998). Allowing 15-year-old victim, who was defendant's daughter and was between five and ten years old at time of alleged offenses, to testify through closed circuit television was not abuse of discretion in prosecution for sodomy; court found that due to nature of testimony and age of victim that face-to-face arrangement would inhibit victim to a degree that jury's search for truth would be clouded. KRS 421.350. Danner v. Com., 963 S.W.2d 632 (Ky. 1998), cert. denied, 119 S. Ct. 529 (U.S. 1998). Defendant's right to confrontation was not violated in sexual abuse prosecution when 10-year-old victim was permitted to testify through closed circuit television, where defendant was permitted to remain in the same room with the victim during her testimony. U.S.C.A. Const. Amend. 6; Const. § 11. Stringer v. Com., 956 S.W.2d 883 (Ky. 1997), cert. denied, 118 S. Ct. 1374, 140 L. Ed. 2d 522 (U.S. 1998). See George v Commonwealth (1994, Ky) 885 SW2d 938, § 12[b]. Defendant charged with second degree cruelty to a juvenile failed to establish prejudicial error in trial court's permitting child victim to testify by closed-circuit television without first allowing defendant an opportunity to conduct an independent psychiatric examination of child; expert who testified regarding child's ability to testify in the presence of defendant testified that procedures employed would not differ depending on who hired them to provide testimony, and defendant failed to demonstrate any prejudice to her defense. State v. Day, 158 So. 3d 120 (La. Ct. App. 3d Cir. 2014). Rape defendant waived his constitutional right to confront victim by stipulating at show-cause hearing that child victim could testify outside the courtroom via closed-circuit television. U.S. Const. Amend. 6. State v. Marcantel, 756 So. 2d 366 (La. Ct. App. 3d Cir. 1999).

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Introduction of child's testimony via closed circuit television, regarding alleged sexual abuse, did not violate defendant's constitutional right of confrontation in aggravated rape prosecution, where expert testified that child, if forced to testify before her father/defendant about the repulsive events, would be severely distressed and unable to communicate reasonably. U.S.C.A. Const. Amend. 6; LSA-R.S. 15:283. State v. Thomas, 711 So. 2d 808 (La. Ct. App. 2d Cir. 1998). See State in interest ofR.C. (1987, LaApp 2d Cir) 514 So 2d 759, cert den, stay vac (La) 516 So 2d 128, § 4. Statute allowing child sexual abuse victim to testify from outside courtroom and outside presence of defendant via live closed-circuit television did not violate defendant's constitutional right to confront witness where there were specific findings by trial court that testimony by child victim in courtroom would result in "child suffering serious emotional distress that child cannot reasonably communicate," and where procedure would not deny defendant's right to be present at all critical stages of his trial and thereby deny federal due process, since defendant could see witness as she testified, could hear questions asked of her and her responses, and could communicate with his lawyer in order to convey information or suggest questions to ask; however, in prosecution for child sexual abuse in which alleged child victim was permitted to testify via live closed-circuit television pursuant to statute, conviction would be reversed where testimony by "counselor-psychologist" that testimony in open court would be "a very frightening experience" for child and testimony by social worker that child would be "intimidated" and "would not be able to answer questions emotionally traumatic for her" in front of father would not support findings that testimony in open court "will result in child suffering serious emotional distress" as required by statute. Wildermuth v State ( 1987) 310 Md 496, 530 A2d 275, motion gr, cert gr (US) 107 LEd 2d 830, 110 S Ct 834. Trial court's decision to permit eight-year-old alleged victim to testify using one-way witness screen, which would prevent alleged victim from seeing defendant, did not violate defendant's right to confront the witnesses against him in prosecution for first-degree criminal sexual conduct and disseminating sexually explicit matter to a minor; alleged victim had expressed fear of defendant, and court found that testifying face to face with defendant would cause alleged victim to regress in her therapy. U.S.C.A. Const.Amend. 6; M.C.L.A. §§ 722.675, 750.520b. People v. Rose, 289 Mich. App. 499, 808 N.W.2d 301 (2010), appeal granted, 488 Mich. 1034, 793 N.W.2d 235 (2011), order vacated, 490 Mich. 929, 805 N.W.2d 827 (2011) and appeal denied, 490 Mich. 929, 805 N.W.2d 827 (2011). In action against juvenile for criminal sexual conduct upon six-year-old girl, trial court's determination that use of two-way closed circuit television hook up for presentation of child's testimony was necessary to protect child from trauma was supported by findings that child needed protection, that she suffered from nightmares and was not able to cope with situation, that offense was of grievous nature and that child would experience trauma; thus, need for procedure outweighed defendant's right to face-to-face confrontation. Re Vanidestine (1990) 186 Mich App 205, 463 NW2d 225.

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Requiring defendant to view the testimony of murder victim's children via closed-circuit television and to communicate with his trial counsel during that testimony through another lawyer did not deny defendant a fair trial and was permitted by statute, providing that, if court finds that the presence of defendant during child's testimony would psychologically traumatize child so as to render the child unavailable to testify, the court may order that the testimony be taken in manner that defendant can see and hear testimony of the child in person and communicate with counsel, but the child cannot see or hear the defendant. M.S.A. § 595.02, subd. 4(2)(c). State v. Manley, 664 N.W.2d 275 (Minn. 2003).

Requiring defendant to view the testimony of murder victim's children via closed-circuit television and to communicate with his trial counsel during that testimony through another lawyer did not deny defendant a fair trial and was permitted by statute, providing that, if court finds that the presence of defendant during child's testimony would psychologically traumatize child so as to render the child unavailable to testify, the court may order that the testimony be taken in manner that defendant can see and hear testimony of the child in person and communicate with counsel, but the child cannot see or hear the defendant. M.S.A. § 595.02, subd. 4(2)(c). State v. Manley, 658 N.W.2d 550 (Minn. 2003).

Trial court properly allowed four-year-old sexual abuse victim to testify via two-way videotape process where child testified that she feared defendant. State v Ross (1990, Minn App) 451 NW2d 231, cert den (US) 112 LEd 2d 79.

Evidence was sufficient to establish that there was substantial likelihood that minor victims would suffer traumatic and emotional distress if compelled to come to court and testify so as to allow victims' testimony via closed circuit television; parents testified as to victims' fears and anxiety regarding testifying, both victims feared defendant because of threats which he made at time of abuse, and court advocate and child advocacy center testified regarding victims' fear of coming to court with everyone looking at them and seeing defendant, so testimony established that both children were frightened of defendant, more than just being case of nervousness. Bradley v. State, 921 So. 2d 385 (Miss. Ct. App. 2005).

Confrontation Clause was not violated in trial for aggravated sexual assault when trial court permitted child victim to testify via closed circuit television, based on child's fear of testifying in defendant's presence and testifying in courtroom; testimony was under oath, extensive cross-examination was conducted, and jury and defendant observed victim's demeanor; statutory requirements for having child testify via closed circuit television in such a case were satisfied where child testified at hearing that she would not be able to talk about incident if defendant was present, and child's counselor testified that child would be unable to testify either in front of defendant or in front of jury. U.S. Const. Amend. 6; N.J.S.A. 2A:84A-32.4. State v. Smith, 158 N.J. 376, 730 A.2d 311 (1999).

Statute permitting court to order that testimony of child be taken by closed circuit television in child abuse cases, if witness is 16 years of age or younger and there is substantial likelihood

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that witness would suffer severe emotional or mental distress if required to testify in open court, was not facially violative of confrontation clause, where court made findings that use of closed circuit television was necessary to protect welfare of witness, that child would be traumatized by defendant's presence, and that emotional distress child suffered in defendant's presence would be more than mere nervousness, excitement, or reluctance to testify; moreover, statute was not unconstitutional as applied, where court, although it did not find that child feared jury, did find that child feared defendant, and defendant failed to request that cliild testify in open court or waive his right to be present in courtroom so that child could testify there; finally, although court was required to conduct thorough, face-to-face interview with child and make detailed findings regarding objective manifestations of child's fear, court was no~ required to order psychiatric examination of child; thus, court's findings that there would be severe emotional distress if child were required to testify in open court, that child would cry in defendant's presence, and that child did not eat or sleep upon being confronted with possibility of testifying, were sufficient to meet constitutional standards. State v Crandall (1990) 120 NJ 649, 577 A2d 483.

Before allowing an adult support person to sit in close proximity to a young child while the child testifies against a defendant before a jury, the defendant should be given the opportunity to suggest alternatives, such as a recess to enable the witness to regain composure or testimony by closed-circuit television. N.J.R.E. 611(a). State v. T.E., 342 N.J. Super. 14, 775 A.2d 686 (App. Div. 2001).

Defendant's constitutional right to confront witnesses was not violated in prosecution for sexual assault when trial court allowed child victim to testify by closed circuit television, where trial court made specific findings regarding likelihood that victim would suffer distress if required to testify in open court, defendant had full video view of victim, and defendant could confer with his counsel, who was in room with victim. State v Davis (1988) 229 NJ Super 66, 550 A2d 1241.

In prosecution for sexual abuse of 6-year-old girl, who refused to answer questions if defendant or jury was present, and who was likely to suffer severe emotional harm if forced to answer, girl would be declared vulnerable witness and permitted to testify via closed circuit television which maintained both letter and spirit of confrontation clause by permitting witness to see defendant and vice versa. P~ople v Rivera (1988) 141 Mise 2d 1031, 535 NYS2d 909.

Trial court in prosecution for multiple counts of child sexual abuse properly allowed 8-year-old complainant to testify by closed-circuit television, whe_re both court's own inquiry and testimony of social worker supported finding that child was vulnerable witness. People v Watt (1994) 84 NY2d 948, 620 NYS2d 817, 644 NE2d 1373.

Allowing vulnerable child victim to testify via closed-circuit television outside defendant's physical presence did not violate defendant's federal and state constitutional right to confront the witnesses against him, in prosecution for sexual abuse in the first degree; evidence

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established the likelihood that the child would suffer severe mental or emotional harm if required to testify in the defendant's physical presence as required by statute, the child testified by way of two-way closed circuit television, so that she could see the defendant during her testimony, and the defendant could see her, and defendant was cross-examined by defendant. U.S.C.A. Const.Amend. 6; McKinney's Canst. Art. 1, § 6; McKinney's CPL § 65.00 et seq. People v. Beltran, 970 N.Y.S.2d 289 (App. Div. 2d Dep't 2013).

Six-year-old victim of sexual conduct was properly permitted to testify at bench trial via closed circuit television, even though expert testimony was not presented, based on court's observations of child and testimony of two witnesses as to severe emotional or mental harm that child was likely to suffer if she testified in defendant's presence. McKinney's CPLR 6501 et seq. People v. Paramore, 732 N.Y.S.2d 410 (App. Div. 1st Dep't 2001).

Child sexual abuse victim was vulnerable witness, and hence was statutorily entitled to testify via two-way closed circuit television; manner of commission of offense of which defendant was accused of committing was particularly heinous, defendant occupied position of authority with respect to witness, and defendant admonished victims that he would go to prison if they divulged what had occurred, and social worker who counseled female victim opined that if she were to testify in court with defendant present, she would suffer severe mental or emotional harm. McKinney's CPL §§ 65.10, 65.20, subd. 9(a, c, g). People v. Pierce, 698 N.Y.S.2d 753 (App. Div. 3d Dep't 1999).

Clear and convincing evidence, including testimony of rape victim's mother, psychologist, and mental health caseworker, sustained trial court's finding that victim was "vulnerable child witness" and should testify via closed-circuit television. U.S. Canst. Amend. 6; McKinney's CPL § 65.20, subd. 9. People v. Biavaschi, 697 N.Y.S.2d 53 (App. Div. 1st Dep't 1999).

Child victim of sexual offenses was properly allowed to testify by closed circuit television based on testimony of expert in child abuse and that of victim's mother, which collectively established, by clear and convincing evidence, four of twelve factors cited in law as reasons for such testimony. People v Ramos (1994, 2d Dept) 203 App Div 2d 599, 611 NYS2d 216.

In prosecution for various offenses including sexual abuse of child, defendant's right to confrontation was not violated by fact that six-year-old victim and victim's eight-year-old sister testified by means of live, two-way, closed-circuit television where social worker who specialized in working with sexually abused children testified that children felt abandoned by both parents and would be particularly susceptible to psychological harm if required to testify in open court or in physical presence of defendant. People v Guce (1990, 2d Dept) 164 App Div 2d 946, 560 NYS2d 53, app den 76 NY2d 986, 563 NYS2d 775, 565 NE2d 524.

Defendant's rights under the Sixth Amendment's Confrontation Clause and the North Carolina Constitution were not violated by allowing 11-year-old victim to testify outside defendant's presence via closed-circuit television (CCTV), in prosecution for felony child abuse and other

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offenses; defendant's trial counsel had a full opportunity to cross-examine victim when he was on the stand, defendant was able to observe the proceedings in real time, and there was a phone in the room so that defendant could cause a signal to flash on the phone on defense counsel's table to indicate he wished to speak with his attorney. U.S.C.A. Const.Amend. 6. State v. Lanford, 736 S.E.2d 619 (N.C. Ct. App. 2013).

Child sexual abuse victim's testimony at trial through use of one-way closed circuit television did not violate defendant's right to confrontation; procedure required that child witness be competent to testify and testify under oath, defendant retained full opportunity for contemporaneous cross-examination, and jury and defendant were able to view witness' demeanor. U.S.C.A. Const.Amend. 6; West's N.C.G.S.A. § 15A-1225.1. State v. Jackson, 717 S.E.2d 35 (N.C. Ct. App. 2011). In prosecution for sexual abuse of 6-year-old and 7-year-old victims, trial court did not abuse its discretion in authorizing closed-circuit testimony by victims, since they testified under oath and were subject to full cross-examination, and their demeanor was observable at all times. In re Stradford (1995, NC App) 460 SE2d 173, app dismd, review den 341 NC 650, 462 SE2d 525. In prosecution for rape of three boys, evidence was sufficient that victims would suffer serious emotional distress if they were to testify in presence of defendant and in permitting testi.mony by closed-circuit television after clinical psychologist met with each child three times, explained his background of working with sexually abused children, and stated his opinion with sufficient certainty that trauma would result from children's confrontation with perpetrator. State v Sibert (1994, Adams Co) 98 Ohio App 3d 412, 648 NE2d 861, motion den 71 Ohio St 3d 1479, 645 NE2d 1258. In dependency and custody proceedings concerning 5-year-old daughter of father who allegedly sexually abused her, trial court properly allowed daughter's testimony to be presented via closed-circuit television, where parents were able to remain in courtroom with television monitor enabling them to observe and hear cross-examination and direct examination of daughter, and closed-cricuit system enabled parents' counsel to raise objections to testimony as well as confer with parents during questioning if necessary. Re Burchfield (1988, Athens Co) 51 Ohio App 3d 148, 555 NE2d 325.

Prior to ordering that a child's testimony be taken outside the presence of the criminal defendant and shown in the courtroom either by closed-circuit television or by pre-recorded video deposition, the trial court must take evidence and find: (1) that the use of the special procedure is necessary to protect the welfare of the particular child witness; (2) that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; and (3) that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimus, i.e., more than mere nervousness or excitement or some reluctance to testify. 22 Okl.St.Ann. § 753. Young v. Macy, 2001 OK 4, 21 P.3d 44 (Okla. 2001), as corrected, (Jan. 23, 2001).

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Commonwealth presented sufficient evidence that child victim would suffer serious emotional distress that would substantially impair victim's ability to reasonably communicate if victim had to testify in presence of defendant in trial for rape and related offenses, and, thus, trial court properly allowed victim to testify via closed-circuit television; psychotherapist testified that victim suffered from depression, suicidal thoughts, and post-traumatic stress disorder which likely would impact her ability to testify effectively, and psychotherapist testified that the presence of defendant in the courtroom with victim would send victim into an emotional tailspin. 42 Pa.C.S.A. § 5985. Com. v. Charlton, 2006 PA Super 149, 902 A.2d 554 (2006).

Preliminary hearing at which child sexual abuse complainant testified via closed circuit television in a room separate from courtroom proceedings was not a critical stage requiring allowance of defendant's presence, and thus defendant's confrontation rights were not violated by precluding him from obtaining access to information about the minor victim's medical and psychological history; defendant retained the opportunity to cross-examine the eight-year-old child via his counsel, and both defendant and the fact finder retained the ability to observe the child throughout her testimony. U.S.C.A. Const.Amend. 6; Const. Art. 1, §

42 Pa.C.S.A. § 5985. Com. v. Williams, 84 A.3d 680 (Pa. 2014).

When permitting a child witness to testify via closed circuit television (CCTV), the trial judge must find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; denial of face-to-face confrontation is not needed to further the state interest in protecting the child witness from trauma unless it is the presence of the defendant that causes the trauma. Code 1976, § 16-3-1550(E). State v. Bray, 342 S.C. 23, 535 S.E.2d 636 (2000).

Family court judge permissibly relied solely on the testimony of victim's treating physician in allowing the State to present the victim's testimony via closed-circuit television in proceeding against juvenile charged with first degree criminal sexual conduct with a minor; physician had conducted 18 treatment sessions with the victim, and stated the victim would be unlikely to talk at all in the juvenile's presence. In Interest of Cisco K., 332 S.C. 649, 506 S.E.2d 536 (Ct. App. 1998).

Trial court made required case-specific finding of necessity for videotaped testimony of child witnesses in child molestation prosecution where trial court found that group of six children would be traumatized by testifying in defendant's presence in open court. State v. Lewis, 324 S.C. 539,478 S.E.2d 861 (Ct. App. 1996), reh'g denied, (Dec. 23, 1996) and cert. denied, (June 5, 1997).

Admission of the closed circuit television testimony of 13-year-old victim and six-year-old witness in child sexual abuse case did not tend to brand defendant with unmistakable mark of guilt and thus did not violate his due process rights by impairing his presumption of innocence, particularly in light of jury instruction stating that procedure was authorized by statute "in these types of cases," which suggested procedure arose merely from general desire to protect

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children from intimidating courtroom environment. U.S.C.A. Canst. Amend. XIV Marx v. State, 987 S.W.2d 577 (Tex. Crim. App. 1999), cert. denied, 1999 WL 297705 (U.S. 1999). Trial court in prosecution for kidnapping and sexual abuse of child victim properly invoked state statute allowing testimony by closed-circuit television for child victim's testimony, where court made findings, required by both statute and constitutional right of confrontation, that television testimony was necessary to child's welfare, that witness would be traumatized by presence of defendant, and that child would suffer more than de minimus emotional distress in direct confrontation. Hightower v State (1991, Tex Crim) 822 SW2d 48. Allowing child witness to testify by closed-circuit television did not violate defendant's Confrontation Clause constitutional rights; child was unavailable to testify due to undue psychological or physical harm at trial, trial court determined that use of closed-circuit television to present testimony was necessary to protect child's welfare, that child would be traumatized by being forced to testify in presence of defendant who murdered child's mother, and that emotional distress child would suffer would be more than de minimis and more than mere nervousness, excitement, or reluctance to testify, and testimony was presented live via closed-circuit television, and defendant cross-examined child at trial. U.S.C.A. Const.Amend. 6; Vernon's Ann.Texas C.C.P. art. 38.071. Gaitan v. State, 257 S.W.3d 1 (Tex. App. Fort Worth 2008).

Allowing child victim to testify from room adjacent to courtroom, with video of testimony projected into courtroom, with only lawyers and judge physically present with victim in room did not violate defendant's right of confrontation; in earlier hearing, victim became very emotional and belligerent, refused to testify, repeatedly said he was getting light-headed, said he could not breathe and said he only wanted to leave, and said he was not going to answer any more questions, but in video testimony, he was more composed and responded fully to questions, and ample safeguards were in place to pr?tect defendant's confrontation rights while protecting victim from trauma of testifying in defendant's presence. U.S.C.A. Const.Amend. 6. Belt v. State, 227 S.W.3d 339 (Tex. App. Texarkana 2007), reh' g overruled, (June 12, 2007). Record supported constitutionally required findings necessary for minor victim to testify by closed-circuit television in trial for aggravated sexual abuse, where licensed professional counselor testified that victim did not want to have to testify in front of defendant, who was her father, that victim would probably become very upset and anxious if she testified with defendant in courtroom, that victim would become anxious and shut down when asked about testifying at trial, that there was strong possibility that victim would be traumatized by testifying in front of defendant, and that victim had recently wet bed, which counselor attributed to victim's anxiety about testifying. U.S.C.A. Const.Amend. 6; Vernon's Ann.Texas C.C.P. art. 38.07( §§ 1, 3. Barnes v. State, 165 S.W.3d 75 (Tex. App. Austin 2005), reh'g overruled, (May 12, 2005).

Evidence was sufficient in trial to terminate parental rights to justify child's testimony by remote televised broadcast; caseworker testified at pretrial hearing that child was fearful of

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parents, it would be difficult for child to testify before parents, child's mental state could digress, and use of televised broadcast was necessary for child's welfare. U.S.C.A. Const. Amend. 6. In Interest of R.V., Jr., 977 S.W.2d 777 (Tex. App. Fort Worth 1998).

Practice of using closed-circuit televised testimony of child witness when trial court finds it is necessary for individual witness' well-being does not violate defendant's due process rights or constitutional guarantee to be presumed innocent. U.S.C.A. Const. Amends. 5, 14; Vernon's Ann. Texas C.C.P. art. 38.071, § 1. Marx v. State, 953 S.W.2d 321 (Tex. App. Austin 1997), petition for discretionary review granted, (Nov. 26, 1997).

In prosecution for aggravated sexual assault of child, presentation of victim's and his brother's testimony by closed-circuit television did not violate defendant's confrontation right where, inter alia, defendant had threatened to kill both brothers, witness was very afraid of defendant, defendant had beaten both boys, and in therapist's opinion, making victim testify in defendant's presence would set back victim's treatment and recovery. Ruiz v. State, 939 S.W.2d 245 (Tex. App. Austin 1997).

In prosecution for aggravated sexual assault, "necessity" for permitting closed-circuit testimony by child was established by findings that child was seven years old at time of trial, defendant was chi.ld's father, child would not be able to verbalize in defendant's presence, and face-to-face confrontation would be traumatic and not in child's best interest. Driggers v. State, 940 S.W.2d 699 (Tex. App. Texarkana 1996), reh'g overruled, (Mar. 17, 1997) and petition for discretionary review refused, (Sept. 10, 1997).

In prosecution of defendant for aggravated sexual assault on his own child, evidence supported findings necessary for child to testify via closed circuit television and thus defendant's Sixth Amendment right to confrontation was not violated. Trial court made specific findings that closed circuit procedure was necessary to protect welfare of child; that child would be traumatized by presence of defendant and not by courtroom generally; and that emotional distress suffered by child would be more than mere nervousness. These findings were supported by testimony of physician that source of child's trauma in testifying would be presence of defendant, that child had been severely sexually and emotionally abused, that she would be further traumatized if forced to testify in presence of defendant and that she could suffer long-term psychological harm from face-to-face confrontation with defendant. Dufrene v State (1993, Tex App Houston (14th Dist)) 853 SW2d 86, petition for discretionary review ref (Oct 20, 1993).

Trial court properly allowed seven-year-old witness to murder of witness' sister to testfy via two-way closed-circuit television in trial of alleged murderer, where witness had seen killing and defendant had threatened to kill witness. Gonzales v State (1991, Tex App San Antonio) 822 SW2d 189, remanded (Apr 15, 1992).

In prosecution for aggravated kidnapping and indecency with child, statute which allowed testimony of child to be taken outside courtroom and televised by closed-circuit equipment

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back to courtroom to be seen by court and finder of fact was constitutional, and procedure used in this trial was constitutional and satisfied Sixth Amendment confrontation requirement, where (1) child victim's testimony was given in presence of attorneys for state, defendant's attorney, court reporter, judge, and video equipment operator; (2) testimony was televised by closed circuit to two monitors, one for defendant and one for jury; (3) defendant was permitted to interrupt questioning to confer with attorney and attorney could interrupt questioning to confer with defendant; and (4) defendant was not required to be personally present during cross-examination since he was personally present in open court with jury while child testified on television, which was shown contemporaneously with the testimony; defendant's request for two-way radio or telephone communication with attorney was properly denied in view of trial court's assurances that testimony would be promptly interrupted when defendant and attorney wished to confer. Statute did not prohibit judge and court reporter's presence in room with child at time of testimony nor did statute require that video camera operator be hidden from child's view. Hightower v State (1987, Tex App Eastland) 736 SW2d 949. Trial court's finding in murder prosecution arising from death of defendant's infant daughter as alleged result of child abuse, that victim's two older minor siblings would suffer more than de minimis emotional strain if forced to testify in presence of defendant and her male cohabitant rather than testifying by closed-circuit television, was sufficiently supported by testimony of court-appointed psychologist who interviewed, tested, and observed siblings. U.C.A.1953, 76-5-109(2)(a), 76-5-203(1); Rules Crim. Proc., Rule 15.5(2). State v. Widdison, 2001 UT 60, 28 P.3d 1278 (Utah 2001).

Use of two-way closed-circuit testimony of children, with respect to testimony of defendant's daughter and defendant's son, did not violate defendant's constitutional right to confront witnesses, in prosecution for sexual abuse of daughter, though camera was directed away from defendant, and the son and daughter therefore could not see defendant while they testified. U.S.C.A. Const.Amend. 6; Const. Art. 1, § 8; West's V.C.A. § 18.2-67.9. Roadcap v. Com., 50 Va. App. 732, 653 S.E.2d 620 (2007). Child sexual abuse victim was unavailable, within meaning of statute allowing for children to testify via closed-circuit television, where expert testimony showed that there was a substantial likelihood that child would suffer severe emotional trauma if forced to testify in open court. West's V.C.A. § 18.2-67.9. Parrish v. Com., 38 Va. App. 607, 567 S.E.2d 576 (2002).

Testimony of child victim of alleged sexual molestation by one-way closed circuit television did not improperly impact presumption of innocence so as to deny defendant his right to due process; defendant had opportunity to cross-examine child and to argue that child's story was inaccurate, and the o~ly evidence the jury did not see was child's reactions to defendant if she had testified in his presence. U.S.C.A. Const. Amend. 14; West's RCWA 9A.44.150. State v. Foster, 135 Wash. 2d 441, 957 P.2d 712 (1998). To the extent that trial court deviated from the West Virginia's statutory requirements for closed-circuit television testimony when allowing a child victim to testify using two-way

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television, those deviations either were with the consent of defense counsel or had no adverse effect on the defendant's right of confrontation; prior to trial, the court conducted a hearing to determine the child victim's competency and ability to testify in open court, and heard evidence from two different master level psychologists, both of which found the child victim competent to testify, but unable to testify in open court with defendant present. U.S.C.A. Const.Amend. 6; West's Ann.W.Va.Code, 62-6B-3(b, d). Ault v. Waid, 654 F. Supp. 2d 465 (N.D. W. Va. 2009) (applying West Virginia law).

[*12b] Held to be unconstitutional

In the following case, a criminal trial for sexual assault of a minor, the court held that under the particular circumstances, the employment of "live" closed-circuit television to present the testimony of a child witness, who was the alleged victim, violated the defendant's right of confrontation, where the "live" closed-circuit television procedure employed did not provide the defendant with the opportunity to communicate privately with his attorney during the testimony of the child witness, did not serve a compelling state need, and failed to show a complete view of the witness or examiner. In State v Warford (1986) 223 Neb 368, 389 NW2d 575, 61 ALR4th 1141, the court determined that the use of "live" closed-circuit television to present the testimony of the prosecution's primary witness, a child, against the defendant in a child sexual-assault case violated the defendant's rights to confront the witnesses against him, finding that the procedure by which closed-circuit television was allowed by the trial court to be used did not require the prosecution to stay within minimal constitutional guidelines. The examination of the child was conducted in the judge's chambers, where a camera was set up to videotape the examination and cross-examination. The judge and counsel for the parties joined the child witness in chambers for the direct examination, while the defendant and the jury viewed the examination on video equipment set up in the courtroom. The defendant did not have any means of communicating with his attorney during this part of the proceeding, nor could the judge monitor what was happening in the courtroom. Upon the failure of the prosecuting attorney to have the child demonstrate with the use of dolls what had happened between her and the defendant, the trial court granted the prosecution permission to allow a therapist question the child within chambers while the judge, counsel for both parties, the defendant, and the jury watched on television monitors in the courtroom. After the completion of the therapist's direct examination, the defense counsel was allowed in chambers to cross-examine the child, and then the prosecuting attorney conducted the redirect examination. At no time did the judge have any means by which he could exercise control over the examination of the witness or interrupt the questioning to rule on objections made by the defendant. The court stated that the record before it did not reveal a compelling need to protect the child witness from further injury, nor did it show that the attempt to examine the child in open court was frustrated by the child's failure to co-operate. It was pointed out by the court that there must be a particularized showing on the record that the child would be further traumatized or was intimidated by testifying in the courtroom in front of the defendant, and that without such a showing the use

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of closed-circuit television would not withstand constitutional scrutiny. Noting that the defendant was in the courtroom while his attorney was in chambers where the child witness was testifying, the court concluded that leaving the defendant with no means of communicating with his attorney unduly inhibited his confrontation right and was therefore constitutionally objectionable. Also, the court found that even when the attorneys for both sides and the judge had returned to the courtroom, the defendant did not have a meaningful opportunity to confront the witness because the court had no control over the examination process carried out by the therapist. Additionally, the court found that the camera which was used at the trial to record the examination of the witness frequently failed to show a complete view of the witness and examiner. CUMULATIVE CASES Cases: In murder prosecution, prosecutor would not be permitted to have four-year-old son of victim testify outside courtroom by use of closed-circuit television procedure in which prosecutor and defense counsel would question child outside courtroom and process would be viewed inside courtroom by court and jury on television screen. Applicable case law permits use of closed-circuit television only where necessary to protect child from trauma caused by testifying in physical presence of defendant and in case at bar, child was traumatized by courtroom setting, or became so nervous among strangers that he could not speak; there was no indication that child's apparent trauma was defendant-generated. Government of Virgin Islands v Riley (1990, DC VI) 750 F Supp 727, 31 Fed Rules Evid Se:rv 1003, reconsideration den (DC VI) 754 F Supp 61, 31 Fed Rules Evid Serv 1253. Allowing child witness to testify by closed-circuit television in prosecution for abusive sexual contact, without complying with statutory requirements, if violation of defendant's Sixth Amendment confrontation clause rights, was not harmless error, since need for confrontation was critical in light of child's equivocal testimony, stating, inter alia, that someone other than defendant had abused her sister, and by fact that child provided the only eye-witness testimony of alleged sexual abuse by defendant, while remaining evidence against defendant was of questionable value. U.S.C.A. Const. Amend. 6; 18 U.S.C.A. §§ 2244(a)(1), 3509. U.S. v. Moses, 137 F.3d 894, 49 Fed. R. Evid. Serv. (LCP) 163, 1998 FED App. 68P (6th Cir. 1998). In child sexual abuse prosecution, trial court's finding, after alleged victim had begun in-court testimony, that child was afraid both of defendant and of testifying in front of jury in courtroom was insufficient to warrant use of two-way closed-circuit television as substitute for live testimony, thus violating defendant's Sixth Amendment confrontation right; court had to find that witness's fear was predominantly from defendant rather than from combination of factors, and fact that closed-circuit television was two-way rather than one-way did not obviate need for such finding. U.S.C.A. Const.Amend. 6; 18 U.S.C.A. §§ 1153, 2241(c), 2246(2)(B), 3509(b)(l)(B)(i). U.S. v. Bordeaux, 400 F.3d 548 (8th Cir. 2005). In prosecution for aggravated sexual abuse of child, finding that child was unable to testify in big courtroom because of her fear of combination of defendant, jury, and prosecutor was

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legally insufficient to support use of closed-circuit television during child's testimony, and thus use of closed-circuit television violated Sixth Amendment right of confrontation; child's fear of participants and large courtroom in general, rather than defendant, was inadequate to support finding of necessity. U.S. Canst. Amend. VI. U.S. v. Bear, 357 F.3d 730 (8th Cir. 2004).

In state court prosecution for capital sexual battery in which five-year-old victim was permitted to testify by closed circuit television, state trial court failed to make sufficient individualized findings about possibility of harm to victim to reliably conclude that it was necessary for her testify outside of defendant's presence in violation of his rights under confrontation clause to meet face to face all those who appear and give evidence at trial. No one at trial appeared to have considered defendant's confrontation clause rights. State's motion for use of closed circuit television did not mention necessity, nor even request that, victim testify outside defendant's presence, and there was no discussion during hearing on state's motion about whether there would be danger of significant traumatization to victim if defendant stayed in courtroom during her testimony. There was nothing to indicate that she was afraid of defendant or that testifying by closed circuit television would enhance protection she needed. Thus, there was no support in record for proposition that state demonstrated, or trial court articulated, any reason to justify victim's separation from defendant during her testimony. Cumbie v. Singletary, 991 F.2d 715 (11th Cir. 1993).

Trial court's placement of a visual barrier between defendant and 14-year-old victim at trial for sexual assault on a child departed from requirements of statute establishing procedure to use in certain circumstances when child witnesses testify; trial court dispensed with defendant's right to face-to-face confrontation with victim, who, because of her age, was not eligible for special protection, trial court did not limit itself to authorized closed-circuit television procedure, and trial court did not allow defendant to observe victim's demeanor and body language, thus depriving defendant of an opportunity to aid counsel in effectively cross examining victim. West's C.R.S.A. § 16-10-402. People v. Mosley, 167 P.3d 157 (Colo. Ct. App. 2007).

In prosecution for sexual battery on child less than 12 years of age in which trial judge, as provided by statute, allowed child-victim to testify via closed circuit television from judge's chambers while defendant remained in courtroom with jury, oral relay system whereby defendant was required to communicate with counsel by oral messages delivered to chambers by bailiff, violated defendant's right to assistance of counsel under state constitution and infringed on privacy of attorney-client communications, and could have resulted in violation of attorney-client privilege. Myles v. State, 602 So. 2d 1278 (Fla. 1992).

Trial court's placement of a screen between defendant and minor victims while victims testified at defendant's trial on charges of lewd and lascivious molestation on a child under age 12 was inherently prejudicial, and thus violated defendant's due process right to a fair trial; statute authorizing use of closed circuit television to shield a minor victim from contact with a defendant did not authorize a partition such as the screen, and use of the screen lent undue

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credibility to the victims. U.S.C.A. Const.Amends. 6, 14; West's F.S.A. § 92.54. McLaughlin v. State, 79 So. 3d 226 (Fla. Dist. Ct. App. 4th Dist. 2012). Trial judge in prosecution for capital sexual battery could not cure hearing judge's failure to make required statutory findings for admission of videotaped testimony by child victim of sexual abuse by making additional findings based upon his reading of transcript of testimony given at hearing. U.S.C.A. Const. Amend. 6; West's F.S.A. § 92.53(7). Ritchie v. State, 720 So. 2d 261 (Fla. Dist. Ct. App. 1st Dist. 1998). In prosecution for sexual battery on person under age of 12, trial court erred in allowing victim to testify by closed-circuit television outside presence of defendant, as authorized by statute, where decision was based on testimony of mother and child that child would be frightened if she were required to testify in presence of defendant, which did not satisfy U.S. Supreme Court standards. Lewis v. State, 626 So. 2d 1073 (Fla. Dist. Ct. App. 1st Dist. 1993). In prosecution for sexual abuse upon child, trial court erroneously allowed child to testify initially in court, only to then remove her to judge's chambers from which child continued testimony via closed-circuit television, where procedure created appearance that judge felt child was afraid of defendant and prejudiced defendant's right to fair trial, where prejudice was especially harmful due to negative aspersion cast upon credibility of defendant, who subsequently testified concerning circumstances surrounding statement he gave to police, which was pivotal evidence against defendant, and where trial court failed to specifically find substantial likelihood that child would suffer at least moderate emotional or mental harm if required to testify in court. Spoerri v. State, 561 So. 2d 604 (Fla. Dist. Ct. App. 3d Dist. 1990). Order requiring defendant to write out questions to be asked of child victim on cross-examination by defendant's standby counsel rather than directly ask victim his questions violated defendant's right of confrontation, in prosecution for lewd conduct in which victim testified via closed circuit television per trial court's order, as there was no evidence supporting trial court's finding that child would suffer serious emotional trauma that would substantially impair victim'-s ability to communicate if he were to testify in defendant's presence, as necessary to justify having victim testify via closed circuit television, and since there was no evidence supporting use of closed circuit television, there was no evidence supporting order preventing defendant from personally cross-examining victim. U.S.C.A. Const.Amend. 6. State v. Folk, 151 Idaho 327, 256 P.3d 735 (2011). Error in depriving defendant of his constitutional right to "face to face" confrontation, under law in effect at time of trial, by permitting alleged five-year-old victim to testify by closed circuit television pursuant to Child Shield Act was not harmless beyond reasonable doubt where trial judge, who acted as finder of fact, believed victim's testimony and relied heavily on it, and State had previously been unable to elicit testimony from victim in defendant's presence. People v. Dean, 175 Ill. 2d 244, 222 Ill. Dec. 413, 677 N.E.2d 947 (1997). Confrontation clause of state constitution providing that defendant had right to meet witnesses face to face would be violated by closed circuit testimony of child victim of offense. People v Fitzpatrick (1994) 158 Ill 2d 360, 198 Ill Dec 844, 633 NE2d 685, reh den (Apr 4, 1994).

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Allowing nine-year-old sexual assault victim to testify via closed-circuit television violated defendant's rights to confrontation and counsel, and was contrary to statute, where defendant was not provided a mean of electronic communication with persons in the room where the victim was testifying. U.S. Canst. Amend. VI; S.H.A. 725 ILCS 51106B-5(a)(2), (f) (2000 Bar Ed.) People v. Fletcher, 328 Ill. App. 3d 1062, 263 Ill. Dec. 312, 768 N.E.2d 72 (5th Dist. 2002).

Trial court's act in allowing alleged child victims to testify via closed-circuit television violated defendant's rights under Confrontation Clause in prosecution for felony murder and abuse of a child; psychologist's report stating that the alleged child victims would suffer psychological injury if they were to testify in the courtroom focused completely on whether the witnesses would be capable of testifying in the presence of their parents, who were on trial for same offenses, not any perpetrator, and there was no evidence related to defendant that the alleged child victims would be traumatized by testifying against her. U.S.C.A. Const.Amend. 6; K.S.A. Const.Bill of Rights,§ 10; K.S.A. 22-3434. State v. Boyd, 127 P.3d 998 (Kan. 2006).

In prosecution for indecent liberties with child and aggravated criminal sodomy, live closed circuit televised testimony of 7-year-old girl was improperly admitted where court made no individualized determination that child-victim witness required special protection, although state statute which provided for admission of such testimony was capable of constitutional application where state would establish by clear and convincing evidence that to require child to testify in open court would so traumatize child as to prevent child from reasonably communicating to jury or render child unavailable to testify. State v Eaton (1989) 244 Kan 370, 769 P2d 1157.

Allowing 11-year-old half-sister of 8-year-old victim of sexual abuse to testify against father by closed-circuit television was reversible error under statute that allowed sexual-abuse victim under age of 12 to testify by television, and especially where psychiatric nurse had testified that witness could testify in father's presence, but that she would be more traumatized than average child by doing so. George v Commonwealth (1994, Ky) 885 SW2d 938.

Decision to allow nine-year-old victim of alleged sexual assault to testify in prosecution for aggravated rape by two-way video television and without appearing in courtroom, as allowed under statute, violated defendant's rights under confrontation clause where no specific finding was made that victim would suffer emotional distress due to presence of defendant. State v. Wright, 690 So. 2d 850 (La. Ct. App. 3d Cir. 1997).

In prosecution for rape and indecent assault and battery of two minor children, trial court improperly allowed children to testify outside physical presence of defendant by means of simultaneous closed-circuit television; statute which allowed procedure for child witnesses under 15 years of age who were alleged to be victims of, or witnesses to, various criminal acts violated confrontation guarantees of state constitution and Sixth Amendment of United State Constitution. Constitutional guarantees were to be interpreted as stating broad and general

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121 61 A.L.R.4th 1155, *12b principles of government and no principal distinction could be drawn between child witness and any other class whom the legislature might deem in need of special treatment. However, the court noted: "while we do not say that testimony videotaped outside the physical presence of the jury never can be utilized, we conclude that the procedures utilized in this case fall short on two additional grounds. Thus, as stated, in addition to the denial of the defendant's right to be present and to confront the witnesses against him, the quality of the transmission of the videotapes used was insufficient to allow the jury properly to fulfill their responsibilities. Further, in the absence of a waiver, the Commonwealth must show, by more than a mere preponderance of evidence, a compelling need for use of such procedure. Such a compelling need could be shown where, by proof beyond a reasonable doubt, the recording of the testimony of a child witness outside the courtroom (but in the presence of the defendant) is shown to be necessary so as to avoid severe and long lasting emotional trauma to the child." Commonwealth v Bergstrom (1988) 402 Mass 534, 524 NE2d 366.

Letting child victim testify over closed circuit television in aggravated sexual assault prosecution, without any attempt to find other means to accommodate victim's fears, violated defendant's Sixth Amendment right of confrontation. U.S.C.A. Canst. Amend. 6; N.J.S.A. 2C:14-2, subd. a. State v. Smith, 310 N.J. Super. 140, 708 A.2d 436 (App. Div. 1998), certification granted, 155 N.J. 587, 715 A.2d 990 (1998).

In prosecution of nursery school teacher for sexual offenses involving nursery school children, in-chamber proceedings by which children testified by closed circuit television were conducted in manner so far removed from proper standards of impartially in presenting testimony of child witnesses that defendant was denied fair and impartial trial. Trial judge, in televised view of jury, played ball with children, held them on his lap and knee at times, whispered in their ear and had them do same, and encouraged and complimented them. Judge also unduly interfered with defense counsels' cross-examination of children and often took charge of questioning, which in many instances was overly suggestive. For all appearances, state's witnesses became judge's witnesses, and thus required atmosphere of bench's impartiality was lost. State v Michaels (1993, App Div) 264 NJ Super 579, 625 A2d 489.

See State v Nutter (1992) 258 NJ Super 41, 609 A2d 65, § 3.

Statute allowing vulnerable child witness in sex crime case to testify by live, two-way, closed-circuit television outside courtroom did not facially violate defendant's constitutional right of confrontation, where it allowed cross-examination of witness by defendant and evaluation of witness's demeanor by trier of fact, and where it required clear and convincing evidence that as result of extraordinary circumstances, witness was likely to suffer severe mental or emotional harm if required to testify without use of closed-circuit television; nevertheless, trial court committed prejudicial error in permitting five-year-old witness in subject action to testify by closed-circuit television, where court based its finding that witness was vulnerable on its own "close" observation of child during two hours on stand, without taking testimony from child's family members, psychotherapist, or others regarding child's

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mental state, and without otherwise establishing sufficient record evidence of witness's vulnerability to enable reviewing court to determine that requisite showing of vulnerability was clearly and convincingly made. People v Cintron (1990) 75 NY2d 249, 552 NYS2d 68, 551 NE2d 561.

See People v Rivera (1990, 1st Dept) 160 App Div 2d 439, 554 NYS2d 125, app den 76 NY2d 795, 559 NYS2d 1000, 559 NE2d 694, § 5.

· In prosecution for child endangerment by day-care providers, statutes allowing children to testify by closed-circuit television failed to guarantee defendants' right to confront accusers with face-to-face confrontation, and therefore case would be remanded for new trial. Commonwealth v Louden (1994, Pa) 638 A2d 953, digest op at (Pa) 13 PLW 17.

Finding that it was necessary for child victim of alleged sexual abuse to testify via closed circuit television (CCTV) was not supported by sufficient evidence, where trial judge failed to interview child directly, social worker who saw child only eight times testified generally about child's intimidation by courtroom setting, but pointed to nothing specific about her fear of defendant, social worker was not an expert in child sexual abuse, and child's mother conceded that child loved defendant and consjdered him to be her best friend. Code 1976, § 16-3-1550(E). State v. Bray, 335 S.C. 514, 517 S.E.2d 714 (Ct. App. 1999), cert. granted, (Nov. 5, 1999).

[*13] Experts

In the following case, involving the prosecution for violation of a municipal ordinance prohibiting the possession of marijuana, the court held that the admission into evidence of an expert witness' testimony, presented "live" over closed-circuit television, as to the nature of the substance found in the defendant's possession, did not violate the defendant's right of confrontation, his due process rights, or any ethical codes.

On appeal from a conviction for possession of marijuana in violation of a municipal ordinance, the court in Kansas City v McCoy (1975, Mo) 525 SW2d 336, 80 ALR3d 1203, held that the admission into evidence of an expert witness' testimony, presented over closed-circuit television, as to the nature of the substance found in the defendant's possession, was not error and did not violate the rights of the defendant or the principles of legal ethics. While the judge, the defendant, and attorneys for both prosecution and defense were present in the courtroom, the expert testified from a crime laboratory office at which the director and assistant director of the laboratory and two other chemists were present. The electronic equipment used in the presentation consisted of two stationary television cameras, two monitors, and two microphones in the courtroom, and a camera, monitor, and microphone in the laboratory. All parties involved could see and hear each other, the transmission of images and voices being instantaneous and the picture clear and distinct. The defendant contended that the confrontation clause of the Sixth Amendment to the United States Constitution required that the witness be physically

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present in court, and that the testimony was not admissible for the reason that due to the fact that the witness was not physically present such evidence was not the best evidence. Referring to precedent which established that the requirement of the physical presence of the witness in the courtroom must occasionally give way to considerations of public policy and the necessities of the case, 10 and that an adequate opportunity for cross-examination satisfied the confrontation clause even in the absence of physical confrontation, 11 the court declared that to require the physical presence of an expert witness against one .accused of violating a municipal police regulation would be to require more than was demanded by the confrontation clause rights of an accused in many instances of prosecutions for felonies. While the witness was not physically present in the courtroom, the court noted, his image and voice were there for purposes of examination and cross-examination, for the defendant and the witness to see and hear each other, and for the trier of fact to observe the demeanor of the witness. The court also rejected the defendant's argument that he was denied due process of law, guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, in that a television camera was within 10 feet of him and in that a microphone on the counsel table within 2 feet of him inhibited private communication with his counsel, thereby creating a "circus atmosphere" in the courtroom, observing that the defendant and his counsel did confer privately notwithstanding the close proximity of the microphone and that those conversations were not recorded. Finally, the court rejected the defendant's contention that the involuntary reproduction of defense counsel's image and voice was contrary to a provision of the Code of Professional Responsibility (DR 2-101) which banned publicity or public advertising by a lawyer calculated to attract clients and to Canon 3(A)(7) of the Code of Judicial Conduct prohibiting the televising of court proceedings. Observing that the closed-circuit television was not available for general view by the public, the court held that the type of projection of the counsel's image and voice employed in the case was not the type of "television" proscribed by either the Code of Professional Responsibility or the Code of Judicial Conduct, the latter of which, the court noted, provided that a trial judge might authorize the use of electronic and photographic means for the presentation of evidence.

CUMULATIVE CASES Cases:

Trial court could not take testimony of doctor and expert in DNA analysis by two-way, interactive video technology, in prosecution for first-degree criminal sexual conduct (CSC), pursuant to rule permitting trial court to take such testimony if certain requirements were met, where there was no showing of good cause, there was no showing of consent and defendant objected to procedure, and defendant did not waive his constitutional right to confront two

10 See Mattox v United States (1895) 156 US 237, 39 LEd 409, 15 S Ct 337, wherein the witnesses had died and were thus unavailable at the time of trial, and the court held that the admission into evidence of the witnesses' prior testimony did not violate the defendant's right of confrontation, for the reason that a technical adherence to the letter of a constitutional provision could occasionally be carried further than was necessary to the just protection of the accused, and further than the safety of the public will warrant

11 See Douglas v Alabama (1965) 380 US 415, 13 LEd 934, 85 S Ct l074.

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124 61 A.L.R.4th 1155, *13 witnesses. U.S.C.A. Const.Amend. 6; MCR 6.006(C)(2). People v. Buie, 285 Mich. App. 401, 775 N.W.2d 817 (2009).

When resident of state psychiatric center elected to be present in courtroom, during hearing on question whether anti-psychotic medication could be administered, physician could give testimony from remote location via two way closed circuit television, without violating Confrontation Clause or state bill of rights. U.S.C.A. Const.Amend. 6; McKinney's Const. Art. 1, § 6. In re Sawyer, 13 Misc. 3d 497, 823 N.Y.S.2d 641 (Sup 2006).

[*13.] 5 Other particular witnesses

CUMULATIVE CASES Cases:

Admission of witness' testimony via two-way, closed-circuit television from a remote location did not violate defendant's Sixth Amendment right of confrontation, where witness was fatally ill and was part of witness protection program, and defendant was too ill to participate in distant deposition; testimony preserved salutary effects of in-court testimony, and testimony afforded greater protection of defendant's rights than would have been provided by pretrial deposition, which also would have been permissible under the circumstances. U.S.C.A. Const. Amend. 6; Fed. Rules Cr. Proc. Rules 2, 15, 57(b), 18 U.S.C.A. U.S. v. Gigante, 166 F.3d 75 (2d Cir. 1999).

Permitting federal government to have testimony of physically-ill government informant witness, who was in federal witness protection program, taken at trial through closed-circuit television would not violate defendant's constitutional right to confrontation and would satisfy requirements of Federal Rules of Criminal Procedure; closed-circuit system permitted witness and defendant to see and hear each other, while jury, court, and counsel would simultaneously see witness and defendant, and deposition of witness was not appropriate due to requirement to disclose witness' address and whereabouts and due to defendant's own poor health precluding him from traveling to deposition. U.S.C.A. Const.Amend. 6; Fed.Rules Cr.Proc.Rules 2, 15(b), 57, 18 U.S.C.A.; Fed.Rules Civ.Proc.Rule 43, 28 U.S.C.A. U.S. v. Gigante, 971 F. Supp. 755 (E.D.N.Y. 1997).

Absent any showing, in prosecution for, inter alia, conspiring to kill United States nationals, that proposed testimony of an alleged terrorist being detained at Guantanamo Bay, Cuba, would be material, admissible, non-cumulative, and competent, no exceptional circumstances existed as required to obtain the potential witness's testimony through closed circuit television (CCTV) or a deposition; the witness admitted that much of the material in his written statement consisted of assertions and understandings that were not based on his personal knowledge, defense counsel admitted that a majority of the statement had nothing to do with defendant's trial, the witness's explanations regarding the "brevity cards" and the theory of bayat were cumulative of other evidence, and there was nothing to indicate that the witness knew or could have known what might have been disclosed to defendant by other leaders of the terrorist

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organization. Fed.Rules Cr.Proc.Rule 15, 18 U.S.C.A.; Fed.Rules Evid.Rule 602, 28 U.S.C.A. U.S. v. Abu Ghayth, 2014 WL 1613197 (S.D. N.Y. 2014).

In products liability action against manufacturer of power saw alleging that saw, as designed, manufactured, and sold, was unreasonably dangerous, district court did not abuse its discretion in quashing deposition testimony of former employee of manufacturer who had supervised design of saw prototype for mass production, or in refusing to allow his testimony via closed circuit television at location removed from courthouse, where witness was obviously well known to defendant and its attorney, and defendant's attorney created problem through his lack of diligence in failing to obtain witness' deposition in timely fashion. Failure to obtain witness' deposition in timely manner should not have been rewarded by allowing witness to deliver his testimony through closed-circuit television at location removed from scene of trial. Ross v Black & Decker, Inc. (1992, CA7 Ill) 977 F2d 1178, CCH Prod Liab Rep P 13360.

Witness who resided in Oklahoma would be permitted to testify for plaintiff via live video feed at hearing held in the District of Columbia, considering that defendants had adequate notice of witness' appearance as a live witness, and there was no material difference between live testimony and the live video testimony. Fed.Rules Civ.Proc.Rule 43(a), 28 U.S.C.A. F.T.C. v. Swedish Match North America, Inc., 197 F.R.D. 1 (D.D.C. 2000).

Granting government's motion to allow witness to testify by live closed-circuit television (CCTV) in defendant's trial on various terrorist-related offenses furthered interests of justice, since government characterized testimony of witness as critical to its truth-seeking function and it was important that government be able to present the material and relevant evidence in its search for truth. U.S.C.A. Const.Amend. 6; Fed.Rules Cr.Proc.Rule 15, 18 U.S.C.A. U.S. v. Mostafa, 14 F. Supp. 3d 515 (S.D. N.Y. 2014).

In prosecution for sexual assault and abuse, trial court did not err in denying state's motion to allow 17-year-old mentally impaired victim to testify by closed-circuit television where statute allowing such procedure applied only to minors, defined as persons under 15 years of age; had legislature intended to include child's developmental age, it should have done so explicitly. State ex rei. Romley v Superior Court (1995, App) 184 Ariz 351, 909 P2d 418, 192 Ariz Adv Rep 47.

Trial court acted within its discretion in burglary trial in allowing witness to testify live by satellite video from another state; witness's father, who owned burglarized condominium, was suffering from physical problems due to recent heart surgery, witness was taking care of his father in Michigan and running his father's business, and trial court concluded that, as a result, witness was unable to attend trial. Slawinski v. State, 895 So. 2d 483 (Fla. Dist. Ct. App. 4th Dist. 2005).

In prosecution for unspecified crime, trial court erred in making insufficient findings of fact before allowing victim to testify by closed-circuit television, and court further erred in refusing

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to allow defendant to have instantaneous communications with his attorney during victim's closed-circuit testimony; relay system employed at trial (whereby defendant was accompanied by certified legal intern who could carry messages to defense counsel) was inadequate and violated defendant's constitutional right to assistance of counsel. Coney v. State, 643 So. 2d 654 (Fla. Dist. Ct. App. 3d Dist. 1994 ). Evidence was sufficient to establish that defendant, during trial that resulted in his conviction on three counts of first-degree criminal sexual conduct and other crimes, consented to the admission of witness testimony by two-way, interactive video; defendant's counsel stated to the· trial court that she would leave the technological proceeding to the court's discretion, following counsel's statement the trial court had a member of its information technology staff explain how the video equipment worked, physician who examined the victims testified without further complaint from defendant's counsel, State's DNA expert testified without further complaint from defendant's counsel, and defendant did not object on the record. MCR 6.003(1), 6.006(C). People v. Buie, 491 Mich. 294, 817 N.W.2d 33 (2012).

Presentation of prosecution witness' testimony through use of interactive television (lTV) was akin to use of videotaped deposition testimony, and thus authorized under rules of criminal procedure, where witness had recently undergone surgery, and witness' treating physician informed court that witness would be unable to travel for three months; procedure did not violate defendant's confrontation rights, where defense counsel had unfettered opportunity to cross-examine witness, physical movements of witness were hampered by neck brace, 121 stitches in his throat, and a screw in his cervical spine, and video image gave jury opportunity to evaluate demeanor of witness. U.S. Const. Amend. 6; 49 M.S.A, Rules Crim.Proc., Rules 21.01, 21.06, subd. 1. State v. Sewell, 595 N.W.2d 207 (Minn. Ct. App. 1999), review denied, (Aug. 25, 1999). Alleged sexual abuse victim was not entitled to testify via closed circuit television outside presence of his former teacher at proof hearing to determine quantum of damages to be awarded to alleged victim's parents, who individually and on behalf of alleged victim, brought civil action for damages against teacher; while taking testimony via closed circuit television was allowed under Child Sexual Abuse Act where a child-victim was 16 years of age or younger, alleged victim was 21 years of age at time of hearing. N.J.S.A. 2A:61B-1, subd. e(l, 2, 4). A.B. v. Y.Z., 184 N.J. 599, 878 A.2d 807 (2005). Trial court had authority under its general powers in second-degree assault prosecution to allow prosecution witness, found to be elderly, infirm, and physically incapable of traveling interstate to appear in court, to testify via live, two-way television, subject to cross-examination; there was no explicit or implicit statutory prohibition, practice did not offend federal or New York confrontation clauses given preservation of essential safeguards of testimonial reliability, and even assuming that face-to-face meeting requirement was violated, public policy of protecting witness's well-being could justify it. U.S.C.A. Const.Amend. 6; McKinney's Const. Art. 1, § 6; McKinney's Judiciary Law § 2-b(3). People v. Wrotten, 14 N.Y.3d 33, 896 N.Y.S.2d 711, 923 N.E.2d 1099 (2009), petition for cert. filed (U.S. Mar. 12, 2010).

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127 61 A.L.R.4th 1155, *13.

Trial court had authority under its general powers in second-degree assault prosecution to allow prosecution witness, found to be elderly, infirm, and physically incapable of traveling interstate to appear in court, to testify via live, two-way television, subject to cross-examination; there was no explicit or implicit statutory prohibition, practice did not offend federal or New York confrontation clauses given preservation of essential safeguards of testimonial reliability, and even assuming that face-to-face meeting requirement was violated, public policy of protecting witness's well-being could justify it. U.S.C.A. Const.Amend. 6; McKinney's Const. Art. 1, § 6; McKinney's Judiciary Law § 2-b(3). People v. Wrotten, 14 N.Y.3d 33, 896 N.Y.S.2d 711, 923 N.E.2d 1099 (2009), cert. denied, 2010 WL 2243754 (U.S. 2010). **** Comment: The United States Supreme Court in Wrotten v. New York, 2010 WL 2243754 (U.S. 2010), denied certiorari from People v. Wrotten, 14 N.Y.3d 33, 896 N.Y.S.2d 711, 923 N.E.2d 1099 (2009), cert. denied, 2010 WL 2243754 (U.S. 2010), in which the Court of Appeals of New York reversed an intermediate appellate court and held that a trial judge had the authority under its general powers to allow a prosecution witness, found to be elderly, infirm, and physically incapable of traveling interstate to appear in court, to testify via live, two-way video, subject to cross-examination. The Court of Appeals further held that this witness's testimony did not violate the defendant's rights under the Confrontation Clause. The Court of Appeals remitted the case to the lower court for consideration of the facts and all other issues raised but not determined on appeal. One judge dissented on the grounds that the trial judge lacked the authority to permit the testimony in the absence of any express legislative authorization. A second dissenting judge asserted that the majority's opinion was also "wrong" on the constitutional issue. Justice Sotomayor filed a statement in which she agreed with the denial of certiorari in light of the interlocutory posture of the case. She emphasized, however, that the denial of certiorari did not constitute a ruling on the merits or express an opinion as to the importance of the constitutional question presented. Justice Sotomayor stated that the constitutional question was not obviously answered by Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666, 30 Fed. R. Evid. Serv. 1 (1990), in which the Court held that the Confrontation Clause did not categorically prohibit a child witness in child abuse case from testifying against the defendant by one-way closed circuit television. The use of video testimony in the instant case arose in a "strikingly different context that in ,"Justice Sotomayor noted. Trial court had discretion, in criminal prosecution for murder in the first and second degrees, burglary, arson, larceny and insurance fraud, to permit defense witness, a county deputy sheriff in Florida, to testify via live, two-way video conference during trial; witness's police assignment would not permit him sufficient leave to attend trial in New York, with the use of live, two-way video, the witness would be subject to cross-examination before the jury, making the testimony reliable, defendant did not object to use of video to facilitate two-way live testimony for witness, and particular form of conferencing was reliable, accurate and widely used in society and commerce. McKinney's Const. Art. 1, § 6; McKinney's Judiciary Law § 2-b(3). People v. Novak, 971 N.Y.S.2d 197 (County Ct. 2013).

Page 48 of 52

128 61 A.L.R.4th 1155, *13.

Under unique circumstances of case in which three witnesses were intimidated by large group of defendant's friends and family, it was within trial court's power under Confrontation Clause to utilize two-way, closed-circuit television procedure for witnesses to testify in prosecution for murder, felonious assault, and having weapons while under a disability, where witness's testimony was critical to state's case, trial court was understandably concerned that witnesses were able to testify in a neutral setting, procedure was necessary to further public policy of justly resolving case, while at same time protecting well-being of witnesses, and preserved reliability of their testimony. U.S.C.A. Const.Amend. 6; Const. Art. 1, § 10. State v. Johnson, 2011-0hio-3143, 958 N.E.2d 977 (Ohio Ct. App. 1st Dist. Hamilton County 2011).

Allowing victim to testify via closed circuit television (CCTV) did not violate juvenile's confrontation clause rights in delinquency proceedings based on charge of assault with intent to commit criminal sexual conduct; in addition to having mental functioning of seven or eight year old, victim also suffered from hereditary immune system disorder placing her at risk of severe swelling of any body part during periods of illness or stress, and there was substantial evidence that victim would suffer emotional distress if forced to testify in juvenile's presence. U.S.C.A. Const. Amend. 6; Const. Art. 1, § 14; Code 1976, § 16-3-1550(E). In re Robert D., 340 S.C. 12, 530 S.E.2d 137 (Ct. App. 2000).

Testimony of 75-year-old witness suffering from medical problems by two-way closed-circuit television did not violate confrontation clause; procedure utilized by State to present testimony preserved characteristics of in-court testimony including that witness was sworn, he was subject to full cross-examination, he testified in full view of jury, trial court, and defense counsel, and he gave testimony under eye of defendant herself, and witness's tenuous health situation, documented by letters from his treating cardiologist, was exceptional circumstance. U.S.C.A. Const.Amends. 6, 14. Stevens v. State, 234 S.W.3d 748 (Tex. App. Fort Worth 2007).

JURISDICTIONAL TABLE OF STATUTES AND CASES (Go to beginning)

JURISDICTIONAL TABLE OF STATUTES AND CASES

UNITED STATES CODE

Fed. Rules Civ. P. 43 Fed. Rules Cr. Proc. Rules 2, 15, 57(b) Fed.Rules Civ.Proc.Rule 43 Fed.Rules Civ.Proc.Rule 43(a) Fed.Rules Cr.Proc.Rule 15 Fed.Rules Cr.Proc.Rules 2, 15(b), 57 Fed.Rules Evid.Rule 602 Rule 30(b )( 4) of Federal Rules of Civil Procedure CALIFORNIA

Cal.Penal Code §§ 288.7, 1347

Page 49 of 52

129 61 A.L.R.4th 1155, *13 .

KENTUCKY

Commonwealth v Willis (1986, Ky) 716 SW2d 224

MINNESOTA

State v. Sewell, 595 N.W.2d 207 (Minn. Ct. App. 1999), review denied, (Aug. 25, 1999)

MISSOURI

Kansas City v McCoy (1975, Mo) 525 SW2d 336, 80 ALR3d 1203

NEBRASKA

Neb.Rev.Stat. § 29-1926 State v Warford (1986) 223 Neb 368, 389 NW2d 575, 61 ALR4th 1141

NEW JERSEY

State v Sheppard (1984) 197 NJ Super 411, 484 A2d 1330

NEW YORK

People v Algarin (1986) 129 Mise 2d 1016, 498 NYS2d 977 People v Henderson (1986) 132 Mise 2d 51, 503 NYS2d 238

WEST VIRGINIA

W.Va.Code, 62-6B-3

OTHER REFERENCES

Am. Jur. 2d, Criminal Law § 720 Am. Jur. 2d, Trial § 30

TABLE OF REFERENCES(Go to beginning)

Annotations See the related annotations listed in § 1 [b]

REFERENCES The following references may be of related or collateral interest to the user of this annotation.

Am. Jur. 2d, Witnesses §§ 416, 417, 463, 464 Foundation for contemporaneous videotape evidence, 16 Am. Jur. Proof of Facts 3d 493 Video Technology, 58 Am. Jur. Trials 481 Videotape Evidence, 44 Am. Jur. Trials 171 Using or challenging a "Day-in-the-life" documentary in a personal injury lawsuit, 40 Am. Jur.

Page 50 of 52

130 61 A.L.R.4th 1155, *13.

Trials 249 Planning and producing a ''Day-in-the-life" videotape in a personal injury lawsuit, 39 Am. Jur. Trials 261 The Use of Videotape in Civil Trial Preparation and Discovery, 23 Am. Jur. Trials 95 25 Am. Jur. Pleading and Practice Forms, Witnesses, Forms 1-4 ·

ARTICLE OUTLINE (Go to beginning)

I. Preliminary Matters

§ 1 Introduction § 1[a] Scope § 1[b] Related matters

§ 2 Summary and comment § 2[a] Generally § 2[b] Practice pointers

II. General Principles

§ 2.5 Trial court possesses inherent power to authorize procedure

§ 3 Trial court does not possess inherent power to authorize procedure

§4 Testimony not inherent violation of confrontation clause

§ 5 Minimal constitutional guidelines; compelling state interest

§ 6 Infringement minimally intrusive

§ 7 Private communication between defendants and counsel

§ 8 Proper transmission of image

§ 9 Impressing upon witness seriousness of testimony

§10 Testimony not inherent violation of separation of powers doctrine

§11 Codes of responsibility

§ 11.5 As alternative to in-court screen to block view

III. Admissibility of Testimony by Particular Witnesses

§ 12 Children or minors § 12[a] Held to be constitutional § 12[b] Held to be unconstitutional

Page 51 of 52

131 61 A.L.R.4th 1155, * 13.

§ 13 Experts

§ 13.5 Other particular witnesses American Law Reports 4th © 1980-1991 by The Lawyers Co-operative Publishing Company © 2015 West Group

Page 52 of 52

132 The Legality And Practicality Of Remote Witness Testimony

r Fredric Lederer

Eventually, the question may be whether phy­ sical presence is really necessary at all.

Courts, government agencies, and law firms have used videoconferencing for multiple purposes for many years. Fredric Lederer Today, the confluence of greatly improved technology is Chancellor Professor of Law and Director, Center for Legal and CourtTechnology, William at decreasing cost and increasing travel costs and diffi­ & Mary School of Law. This article was originally culty now make videoconferencing especially appealing. prepared in a slightly different form for Among other uses, videoconferencing can be employed distribution at the 2008 ABA Annual Meeting for: as part of a Criminal Justice Section program of • Law firm administration; the same name. He can be reached at filede@ wm.edu. Law firm hiring, as demonstrated by Law School Connect. A joint effort by the Center for Legal and Court Technology and Courtroom Connect, Law School Connect provides videoconferencing to over 50 law schools so that students may be interviewed by legal employers for summer and permanent positions. See www.lawschoolconnect.com; Alternative dispute resolution and settlement; • Remote appearances at pretrial matters, trials, ad­ ministrative hearings, and appeals; and • Education and training.

The Practical Litigator I 19

133 20 I The Practical Litigator September 2009

Deciding whether to use remote appearance tech­ Understanding the technology is not as impor­ nology requires familiarity with the technology and tant as understanding its implications. Modern qual­ its costs, the quality of use, and the legal, human, ity commercial videoconferencing presents a high­ and practical matters that accompany videoconfer­ quality image, fully synchronized with the audio. encing. This article is designed to give you a basic In other words, a person's voice is fully coordinated introduction to the topic. The Center for Legal and with lip movements. Subject to the availability of Court Technology (CLCT) has been a pioneer in the communication lines, equipment can be highly the legal uses of video conferencing for many years, portable. Commercial standard videoconferencing and this article is based on that experience. does not use satellite technology and thus does not Although videoconferencing has been accepted need to originate in a television studio. We distin­ for many applications, the critical legal issue that guish quality commercial technology from low-cost accompanies remote appearances is whether its computer-based conferencing that often has video use by the prosecution in criminal cases to pres­ in a small window with the image sometimes at low ent remote government witness testimony violates resolution or an inadequate frame rate, resulting in the Confrontation Clause. I address general back­ jerky movements. ground as well as the general issue of remote testi­ High-end videoconferencing equipment per­ mony of various kinds. mits the concurrent transmission of computer images, whether of digital documents or of Pow­ TECHNOLOGY • Much of the following is tak­ erPoint or similar electronic slides. In such a case, en in various forms from Fredric I. Lederer, The Po­ the video can be displayed on one screen and the tential Use rf Courtroom Technology in Major Terrorism computer data on another. In the CLCT context, Cases, 12 Wm. & Mary Bill Rts.J. 887 (2004) with a remote witness would appear on a large screen updating as appropriate. Modern video conferenc­ behind the witness stand while the data being dis­ ing uses either ISDN (Integrated Services Digital cussed by the witness would be shown to the jury Network, which can be thought of as high band­ on their individual flat screen monitors. width telephone lines), or IP (Internet Protocol) Absent such features, document cameras or fax data connections. New high-end commercial level technology may be used for expeditious two-way equipment customarily has both connection capa­ document viewing. Television cameras that show a bilities. In its most basic form, a single location­ picture of any document or object placed below its to-location connection ("point-to-point") consists television camera can be used to show documents. at each end of a camera, microphone, and visual The newest major development in videocon­ display (e.g., TV screen), and the "codec" (the vid­ ferencing is "HD," high definition. High definition eo-conferencing hardware). Each end's equipment images are detailed enough to allow a judge to see must be connected to either an Internet connec­ sweat on the forehead of a witness. HD does re­ tion or the ISDN connections. "Multi-point" con­ quire, however, HD-capable equipment on each nections are possible, customarily with the use of end as well as adequate communication connec­ a "master control unit" (MCU) or the use of com­ tions ("bandwidth"). Very high end "telepresence" mercial "bridging" services. CLCT is unique with solutions such as those available from CISCO are the potential capability of hosting five or more very close to science fiction in terms of technology independent concurrent video conferences in Wil­ permitting one to feel in the same room as the re­ liam & Mary's McGlothlin Courtroom. ~ote party.

134 Remote Witness Testimony I 21

IP-based video conferencing is increasingly the history that remote testimony has been given from type used. If the user has the necessary bandwidth a retirement community. available for normal law firm or court purposes, for example, the connection is effectively free. Howev­ IMPACT ON FACT-FINDERS • Video confer­ er, IP-based videoconferencing may provide vari­ encing customarily works well from a technological able quality depending upon whether other users perspective. However, its pragmatic and legal utility use the same Internet bandwidth for their own have long been controversial. Insofar as the CLCT purposes during the video conferencing use. ISDN­ has been able to ascertain, remote appearances ap­ based videoconferencing requires specialized com­ pear to be treated by courtroom participants just as munications lines and can be thought of as costing if those persons were physically in the courtroom. about three times the cost of a normal phone call Some years ago we conducted two separate scien­ of the same duration (for a non-HD call) plus the tifically controlled experiments conducted over two monthly line subscription cost. ISDN tends to give academic years under the supervision of then Wil­ a more dependable connection but is being increas­ liam & Mary psychology professor Kelly Shaver. ingly abandoned in favor of the less expensive IP They demonstrated that in civil personal injury method of connection. jury trials in which damage verdicts relied upon the Although there are a number of videoconfer­ testimony of medical experts, there was no statisti­ encing manufacturers, perhaps the best known are cally significant difference in verdict whether the Polycom, Tandberg, and LifeSize, all of which are experts were physically in the courtroom or else­ CLCT Participating Companies (those that have where, at least so long as witness images are dis­ equipment installed in CLCT's McGlothlin Court­ played life-size behind the witness stand, and the room and with which we are familiar). Most people witness is subject to cross-examination under oath. are familiar with videoconferencing using either Years of non-controlled experiments in criminal large fiat panels or televisions; desktop models are Laboratory Trials suggest that the same result ap­ now available and Polycom now offers an HD unit plies to merits witnesses in criminal cases. that can also serve as a computer monitor. Even if the William & Mary results are con­ Personal computer-based videoconferencing firmed in other experiments, however, there are has been in use for some years, but ordinarily we questions for which we have no answer. Likely the have not found it to give a good enough picture most important of these concern the willingness for important legal usages in which credibility and of remote witnesses to lie when testifYing remotely. similar factors are critical. We have had good suc­ We do not know whether the psychological separa­ cess in remote motion experiments with Polycom's tion from the courtroom that unavoidably accom­ PC-based PVX software solution, except that com­ panies remote testimony affects the willingness to puter firewall issues may present difficult technical lie. One of the reasons used to justifY remote testi­ problems for some users. On September 13, 2008, mony by abused young children is the need to insu­ our 2008 Center for Legal and Court Technology late them from the fear that can accompany being Laboratory Trial successfully incorporated quality in the same courtroom with the defendant. Does remote testimony to the courtroom by an elderly the same removal affect other witnesses, and if so, witness who testified from her retirement commu­ how? Note that although physical absence from the nity apartment using a laptop with the PVX soft­ courtroom might make it easier psychologically to ware and a standard cable Internet connection. lie, such an ease does not necessarily mean that a We believe that this may have been the first time in witness would lie.

135 22 I The Practical Litigator September 2009

If so, would "confronting" a remote witness federal military appeals cases, United States v. Sala­ with an immediately present high-resolution image zar, 44 MJ. 464 (C.A.A.F. 1996), and United States of the defendant while the witness testifies coun­ v. Rockwood, 52 MJ. 98 (C.A.A.F. 1999), judges of teract any effects of the physical absence? In short, the United States Court of Appeals for the Armed the use of videoconferencing for remote court ap­ Forces have appeared remotely as part of the pearances, particularly for remote witness testimo­ Court's hearing of actual cases in the McGlothlin ny, raises human and potential legal issues not yet Courtroom, a practice that has also been used in resolved. Although these issues are likely critical for one form or another in at least the Second, Tenth, remote witness testimony, they do not necessarily and D.C. Circuits, as well as in courts in other na­ affect other forms of remote participation. Our ex­ tions, such as the High Court of Australia. Video­ periments were conducted with conditions such as confirencing Links Federal Courts and Public, The Third the location of the witness being fixed. We do not Branch Gune 8th 1998) http:/ /www.uscourt. .gov/ know what the consequences would be if they were ttb/jun98ttb/vid o.htrnl (lOth and D.C. Circuits); to be varied. As a result, our courtroom designs err Robin Topping, Hearings Linked By Videoco'!ftrenc­ on the side of safety by following the design pro­ ing, Newsday, Apr. 23, 1997, at A29 (2d Circuit); tocol used in the experiments. At the same time, Mark Pazniokas, Video Justice Is Catching On In, Legal we prefer this methodology as a matter of policy. Circles, Hartford Courant, May 7, 1997, at A3 (2d We believe that technology should be as invisible as Circuit). possible and should not alter traditional trial prac­ One of the most interesting CLCT experimen­ tice if possible. Having a remote witness appear tal uses of videoconferencing was to permit the re­ where the in-court witness sits appears intuitively mote appearance of a prosecutor at trial. The 2001 desirable. experimental terrorism CLCT Laboratory Trial, Happily, these are not significant issues for United States v. Linsor, involved a bombing of a Unit­ many video conferencing uses. They are impor­ ed States military aircraft in England. We assumed tant, however for remote witness testimony. a substantial amount of cooperation from United Kingdom officials, so much so that it made sense for REMOTE PARTICIPANTS • Most civil and a British barrister acting for the prosecution to con­ criminal trial courtroom use of videoconferencing duct the direct examination of a key government to date has involved remote witnesses, or in appel­ witness who himself appeared live from Canberra, late cases, remote judges or counsel. Administrative Australia. Having filed an appropriate motion with hearings such as Social Security disability hearings the Court to permit his appearance, British Barris­ have used video conferencing for both remote judg­ ter Jeremy Barnett appeared remotely from Leeds es and remote claimants and their representatives. on a 40-inch diagonal flat screen plasma display Past CLCT experiments have made substantial placed on the prosecution table and conducted an use of the technology for trial participants gener­ outstanding direct and redirect of the defendant's ally. Perhaps the most straightforward use of the primary accomplice. His examination was both technology is to permit judges or counsel to appear professional and successful; the videoconferencing remotely for motion or other arguments. In 1999, nature of the examination seemed to have no ad­ the CLCT demonstrated how a remote judge could verse consequence. Although we consider Mr. Bar­ preside remotely from the United States District nett's examination as a successful proof of concept, Court for the District of Oregon over a jury trial in the ordinary case it seems self-evident that coun­ in Williamsburg, Virginia. In two United States sel will wish to be in the courtroom, even if they

136 Remote Witness Testimony I 23 examine a remote witness. This may be subject to eign law, as the law of the forum ordinarily gov­ change as society increasingly accommodates it­ erns privileges. However, we assumed that we were self to burgeoning technology, or as sufficient need unable to extradite the lawyer, either as a legal or arises. Indeed, in the 2005 experimental Labora­ practical matter. Without the ability to compel tes­ tory Trial, In re Blossom & Blossom, an international timony in the United States, we were left with the parental child custody trial, our CLCT court and need to comply with foreign law. The Australian a Monterrey, Mexico, court agreed to jointly take lawyer would testifY if the Australian and British evidence from each other in an effort to reach a courts determined that he could do so without vio­ common custody result. Counsel, witnesses, and lating his duty as a lawyer. Accordingly, we held the judges used videoconferencing to connect to each first known three-court concurrent hearing. Using other's courtroom. the CLCT Tandberg videoconferencing systems, In the 2003 Courtroom 21 Laboratory Trial, the courtroom was connected to Queensland, United States v. Stanhope, the prosecution was faced Australia, and Leeds, England. The prosecution with a case-determinative proof problem. The de­ argued Australian law to Australia, English law to fendant had been indicted for trying to finance an England, and the Federal Rules of Evidence to the al Qaeda strike in the United States. She had sent presiding judge in Williamsburg, the Honorable a valuable oil painting to Dubai where it had been James Spencer, United States DistrictJudge for the sold to an Australian art collector for a substantial Eastern District of Virginia. Mter all three courts sum of gold. The gold was effectively converted to ruled seriatim that the respective national privilege U.S. dollars and transmitted through the Hawala did not apply (using what amounted to a crime/ money transfer system to Cairo, thence to Beirut, fraud exception), in Queensland the lawyer was and from Beirut to London and then Berlin. In Ber­ directed to testifY and did so remotely to Williams­ lin the money was conveyed to the United States to burg. Although the probability of such a hearing in buy a minority interest in a United States firm so the near future seems unlikely, it is indeed possible, as to support al Qaeda operatives. The prosecution and videoconferencing appears to be the most use­ was able to trace the funds back to Dubai and the ful way of accommodating the varied practical, painting from the United States to Dubai. How­ legal, and political issues involved. In Stanhope, no ever, in the absence of the art collector, who had judge sat outside his or her own court, let alone na­ disappeared, the prosecution could not connect the tion. Although the time zones were extremely both­ painting and the money. The art collector, however, ersome, especially for our Australian colleagues, had sought legal advice from his Australian solici­ the hearing was far more efficient than any other tor while they were both in London and had fully mechanism that we could envision. As we increas­ communicated all of the necessary evidentiary de­ ingly are forced to deal with courts abroad, particu­ tails to the lawyer. If the prosecution could obtain larly the courts of allied nations, hearings similar the testimony of the lawyer, the art collector's state­ to the one we held in Stanhope may be highly desir­ ment would be admissible as a declaration against able. interest under Federal Rule of Evidence 804(b)(3). The lawyer claimed the attorney-client privilege THE LEGAL SITUATION FOR REMOTE under Australian, British, and United States law. WITNESS TESTIMONY • The most wide­ With the lawyer in a United States district court spread and accepted use of videoconferencing in courtroom, the Federal Rules of Evidence would the courtroom is remote witness testimony. Au­ have applied, likely without any application of for- thorized in federal civil cases by Federal Rule of

137 24 I The Practical Litigator September 2009

Civil Procedure 43(a), remote testimony has been defense sought to call a very large number of wit­ used in state and federal courts in the United States nesses. Early in the case the trial judge suggested and courts abroad, especially in Australia. See, e.g., that many of the witnesses might best testify via Chief Justice M.EJ. Black, A Court-Based National videoconferencing. The defense adopted the judge's Videocoriferencing Network for Taking Evidence and Aid­ suggestion and formally proposed the taking of tes­ ing in Administration, presentation during The First timony from 25 or more witnesses. The witnesses Worldwide Common Law Judiciary Conference were to be located primarily in Antigua, Jamaica, (May 29, 1995). It has also seen successful use in Washington State, and Louisiana. Most, but not the International Criminal Tribunal for the Former all, would be mitigation sentencing witnesses, and Yugoslavia. Information Technology in An Inter­ a number would replace the defense-proposed use national Criminal Court, a videotape presented at of videotaped deposition/ statement evidence pre­ the 2002 Australian Institute of Judicial Adminis­ viously opposed by the prosecution. The Fairfax tration 3rd AIJA Technology for Justice Conference Circuit Court is a Courtroom 21 Court Affiliate. by the Honorable David Hunt, of the International (CLCT was originally named the Courtroom 21 Criminal Tribunal for the Former Yugoslavia (on Project, a name still used for courtroom purposes, file with the Courtroom 21 Project). See also Sanja including the Courtroom 21 Court Affiliates.) The Kutnjak Ivkovic, Justice by the International Criminal Clerk's Office appointed CLCT to serve as Execu­ Tribunal for the Former Yugoslavia, 3 7 Stan.]. lnt'l L. tive Agent to determine the feasibility of remote 255, 286 (200 1) ("The ICTY in the Tadic case, for testimony and, should the court so order it, to im­ example, . . . provided eleven witnesses with the plement it. opportunity to testify via videoconferencing from Initial CLCT actions proceeded on concurrent a location in the former Yugoslavia"). Its use in tracks: determining whether such testimony was American criminal cases, however, has been con­ technologically, logistically, and financially pos-. troversial. sible, and whether foreign testimony could be law­ fully obtained. The first concern, although highly Defense Testimony time-consuming, was straightforward and eventu­ Because the Bill of Rights protects defendants ally yielded a determination of practicality and fi­ against government action, there is no Constitu­ nancial savings. Remote locations were located in tional prohibition on remote defense testimony. In federal court facilities in the United States and po­ any jurisdiction, however, there may be a court rule tentially adequate commercial facilities were locat­ or statutory constraint. Both the utility and diffi­ ed in Antigua andJamaica. CLCT Deputy Direc­ culty of such testimony can be seen from the trial tor for Courtroom Design and Technology Martin in Commonwealth v. Malva. Gruen and I surveyed the Chesapeake Courthouse Malva was the capital trial of the younger of and determined what would need to be done to the two "Washington snipers." Charged with mur­ implement videoconferencing in the courtroom. der "in the commission of an act of terrorism,'' We determined a probable minimum cost savings Malva's prospects for a favorable verdict were dim. of $12,539.26 over the cost of transporting to Vir­ The evidence against him was overwhelming. In ginia those witnesses able to travel, a financial sav­ addition to attempting to counter the prosecution's ings that did not address the fact that a number of case in chief on the merits, the defense needed to potential witnesses, including Malva's mother, were present especially probative evidence on capital not necessarily able to travel to testify. Letter from sentencing if it was to avoid a death sentence. The Chancellor Professor of Law & Director, Court-

138 Remote Witness Testimony I 25

room 21 Fredric I. Lederer to The Honorab1ejane issue is its very legality. Ordinarily, debate about the Marum Roush, Fairfax Circuit Court (October 15, legality of remote testimony centers on its constitu­ 2003)(originally available at http:! /www. ·o.fairfax. tionality under the Sixth Amendment. That issue is va. us/ courts/ cases/ pdf! r l 0 L603 other.pc!Q. moot if the court is estopped by statute from per­ The second proved to be quite interesting. Be­ mitting the testimony, although such a statute may cause the Antigua andjamaica witnesses were not raise compulsory process issues. A review of Vir­ in the United States, obtaining permission for them ginia's statutory law suggests that there is no affir­ to testifY was a diplomatic matter. As the Office of mative statutory authority for such testimony. Such International Affairs of the Department ofJustice's law as has been enacted could reasonably be read Criminal Division assists only prosecutors in ob­ to prohibit it. Va. Code Ann. § 19.2-3.1, Personal taining evidence abroad in support of our Mutual appearance by two-way electronic video and audio Legal Assistance Treaties, we were left to other de­ communication; standards ("Where an appearance vices to obtain that testimony even though we were is required or permitted before a magistrate, intake seeking the evidence on behalf of the court in the officer, or, prior to trial, before a judge, the appear­ interest of expediting trial and lowering its cost to ance may be by ... use of two-way electronic video the taxpayer. We contacted and obtained support and audio communication"); Va. Code Ann. §1 7.1- from the State Department, which was prepared 513.2, Use of telephonic communication systems to obtain permission from the foreign governments or electronic video and audio communication sys­ involved and, if necessary, to ensure the presence tems to conduct hearing ( ... in any civil proceeding ... of a consular officer when the testimony was taken. the court may, in its discretion, conduct any hear­ The issue of where the oath was to be administered ing using ... an electronic audio and video com- was raised by State Department representatives, an munication system to provide for the appearance' issue for which we had no adequate answer. We of any parties and witnesses)(emphasis added). The could potentially have had the oath administered judge's decision not to permit the remote testimo­ remotely from Virginia, a consular official could ny in large part because of the government's op­ have administered it in the originating location, or position raises an interesting question. As the court both. Because the evidence was to be presented by failed to specifY her reasons in greater detail it is the defense, we assumed that the oath issues, how­ unclear whether the decision was on policy or eq­ ever important, would in actuality be moot as the uitable grounds or whether she had considered any defense would be unable to assert error should the potential legal error as moot when the request was case go to appeal. Whether the testimony would be a defense one and unopposed by the prosecution. lawful under Virginia law was not a matter within Accordingly, remote testimony for any criminal our concern, although it may well have proven the case, terrorism or not, is dependent at the very least determinative issue. upon the absence of a prohibitive statute or rule. Ultimately, the prosecution opposed the defense Without such legal authority, the issue is at least request. The judge then ruled against the defense left to the court's discretion. Far better would be request for remote testimony stating, among other affirmative authority similar either to Fed. R. Civ. matters, that she would not grant the motion over P 43(a) or the more comprehensive authority found government objection. in other jurisdictions such as Victoria, Australia. Upon reflection, I believe that the Malva case il­ Victoria Evidence (Audio Visual and Audio Link­ lustrates some of the critical issues raised by remote ing) Act 1997 section 3 (Act No. 4/1997, Victoria, testimony in criminal cases generally. The threshold Australia) inserting into the Evidence Act 1958,

139 26 I The Practical Litigator September 2009

new section 42G. The legality of the witness oath is know it and who are not, we do not even have a a matter of consequence. In the absence of treaty, baseline for this determination. there is no clear way to know whether an oath is Interestingly, the District of Columbia Cir­ legally valid in the sense that a prosecution for per­ cuit has summarily rejected an attack on remote jury may result. Is a crime committed when one testimony in a civil case because of the oath issue. perjures oneself in one country while testifYing in El-Hadad v. United Arab Emirates, 496 F. 3d 658, 668- a trial in another? Whose law has been violated? 69 (D.C. Cir. 2007), cert. denied, 128 S. Ct. 1872 And do we care about the probability that a for­ (2008). eign nation would actually prosecute? In the semi­ Before returning to the more usual prosecu­ nal case in this area, State v. Harrell, 709 So.2d 1364 tion use of such evidence, it is worthwhile to briefly (Fla.), cert. denied, 525 U.S. 903 (1998), the Florida examine the one area in which an attempt by the Supreme Court· held that the treaty between the defense to use remote testimony is constitution­ United States and Argentina permitted the po­ ally unique, the Constitution's compulsory process tential extradition to the United States for trial of clause. Argentine witnesses testifYing by two-way satellite against a Florida defendant. !d. at 13 71. The Flori­ Sixth Antendment Compulsory da Supreme Court opined that perjury was punish­ Process Clause able under both Florida and Argentine law. It is not The Compulsory Process Clause provides sim­ entirely clear that the respective statutes punishing ply that, "In all criminal prosecutions, the accused false statements in each jurisdiction necessarily ex­ shall enjoy the right ... to have compulsory process tended to a false statement in Argentina made inci­ for obtaining witnesses in his favor .... " In Cham­ dent to a criminal trial in another nation. bers v. Mississippi, 410 U.S. 284 (1973), the Supreme Note that these questions arise even when it is Court held the clause to be sufficient to override the defense that is attempting to use remote testi­ a state prohibition on declarations against inter­ mony. Given the usual posture of such evidence est when on the facts of the case the evidence was attempts, it seemed ironic to have the prosecution probative and necessary. Although it may as yet oppose remote testimony for fear that it could not be premature to argue that Chambers gives rise to a adequately cross-examine the remote witness, pres­ generalized right to present probative evidence for ent adequate witness demeanor to the jury, or be a criminal defendant, such a claim is not unreason­ . aware of potential witness tampering abroad - able. If remote testimony is sufficiently probative claims one ordinarily hears from the defense. This and trustworthy, the defense ought to have a consti­ raises one of the key questions about such testi­ tutional right to it, even if barred by rule or statute. mony: Should it ever be used? At the same time, I Indeed, in Malvo, the defense argued compulsory would note that of the real concerns (witness tam­ process as a ground for the proposed remote testi­ pering does not seem to be one; it can take place mony. When the judge asked counsel whether he anywhere), technology can cope with almost all was arguing that she might have a duty to provide of them. The one critical concern that appears to remote testimony from anywhere in the world when be beyond our ability to adequately ascertain is, as otherwise justified, he ducked the question in favor previously discussed, whether remote testimony is of a response based on the court's likely financial more likely to yield intentionally false testimony. As savings. His better answer would have been "Yes." we seem to be unable to be able to tell even with If the defense has a legitimate need for evidence in-court witnesses who are telling the truth as they and that evidence is available, in a system that pays

140 Remote Witness Testimony I 27 for witness travel, there seems to be no reason to tant concerns and in light of them no one, to the reject remote testimony, especially if the result is to best of my knowledge, has seriously suggested the either entirely foreclose obtaining the evidence or routine use of remote testimony in criminal cases to present it through the more expensive and less - although the Supreme Court's 2009 decision useful means of a deposition. that prosecution use of forensic laboratory reports Proposed defense use of remote testimony is violates the Confrontation Clause, Melendez-Diaz v. believed to be relatively rare. Given the option, the Massachusetts, 129 S. Ct. 2527 (2009), would justify prosecution likely would be a more frequent user, remote analyst testimony if that proved constitu­ but the prosecution must face the Sixth Amend­ tional. What has been suggested is a criminal ana­ ment's Confrontation Clause. log to Federal Rule of Civil Procedure 43(a). When Remote Prosecution Testhnony the Advisory Committee on the Federal Rules of The usual intended use of remote testimony in Criminal Procedure issued its major rules amend­ a criminal case is to supply prosecution evidence. ment recommendations in 2002, it recommended One can reasonably assume that this would be the that Federal Rule of Criminal Procedure 26 be norm for many cases, especially terrorism cases in­ amended to add proposed Rule 26(b): volving foreign witnesses. The complicated nature of major cases also suggests that there may be need "In the interest of justice, the court may authorize for distant witnesses who are called to testifY only contemporaneous, two-way video presentation in very briefly to lay pro forma evidentiary founda­ open court of testimony from a witness who is at a tions. In the Me Veigh case, for example, 27 witness­ different location if: es who testified during the morning session were ( 1) the requesting party establishes exceptional cir­ phone company employees flown in from around the country to authenticate hundreds of pages of cumstances for such transmission; phone records, each testifYing for only a few min­ (2) appropriate safeguards for the transmission are utes. One witness was on the stand for just 50 sec­ used; and onds. Michael Fleeman, Me Veigh Phone Trial Retraced (3) the witness is unavailable within the meaning of Prosecutors Call 2 7 to Recount Calls for Explosives, Rental Federal Rule of Evidence 804(a)(4)-(5)." Truck, Pittsburgh Post Gazette, May 8, 1997, at AS.

This might better be done by remote testimony http://www.suprcmc .ourtu .gov/ordcrs/c Ul"­ that could result in large cost savings while mini­ torders/&cr02p.pdf mizing the inconvenience caused to the witnesses. The fundamental question in this area is wheth­ In its notes, the committee favorably compared er prosecution-proffered remote witness testimony the use of remote testimony to traditional deposi­ can or should be received in evidence. Remote tion evidence. Id. A criminal deposition ordinarily testimony has been attacked as an inadequate sub­ permits the accused to be present in the same room stitute for in-court physical testimony. Concerns range from the already noted issue of the effect of with the witness. In an unusual although not un­ physical absence from the courtroom influencing precedented act, the Supreme Court, withjustices truth-telling to the inability to determine demean­ Breyer and O'Connor dissenting, refused to trans­ or to the expressed critical need for the witness to mit the proposed rule to Congress. lnstead,Justice face the defendant in open court. These are impor- Scalia opined:

141 28 I The Practical Litigator September 2009

''As we made clear in [Maryland v. ] Craig ... , a pur­ vides the circumstances under which and the pro­ pose of the Confrontation Clause is ordinarily to cedure by which a party can take a deposition to compel accusers to make their accusations in the perpetuate testimony for those witnesses that are defendant's presence - which is not equivaient to found to be unavailable. . .. making them in a room that contains a television "Thus, in all future criminal cases where one of set beaming electrons that portray the defendant's the parties makes a motion to present testimony image. Virtual confrontation might be sufficient to via satellite transmission, it is incumbent upon the protect virtual constitutional rights; I doubt wheth­ party bringing the motion to (1) verify or support er it is sufficient to protect real ones." by the affidavits of credible persons that a prospec­ tive witness resides beyond the territorial jurisdic­ http:/ /www.supremccounus.go our- tion of the court or may be unable to attend or wrde1·s/ frcr02p.pd:t: be prevented from attending a trial or hearing and (2) establish that the witness's testimony is material The Court's failure to forward the Rule simply and necessary to prevent a failure of justice. Upon deprived the federal courts of affirmative authori­ such a showing, the trial judge shall allow for the zation for remote testimony, leaving United States satellite procedure. district judges to make case-by-case individual de­ " ... However, some important caveats exist in cisions when remote testimony is proposed. The regards to the oath, cross-examination, and ob­ Court's action, however, clearly signals the severe servation of the witness's demeanor. First, an oath doubts held by many of its members as to at least is only effective if the witness can be subjected to the desirability of remote testimony. prosecution for perjury upon making a knowingly In State v. Harrell, supra, the Supreme Court false statement.... To ensure that the possibility of of Florida held that neither the state nor federal perjury is not an empty threat for those witnesses Constitution prohibited remote testimony by the that testify via satellite from outside the United eyewitness victims of the crime when they testified States, it must be established that there exists an ex­ against the defendant by two-way satellite televi­ tradition treaty between the witness's country and sion from Argentina. The Court found sufficient the United States, and that such a treaty permits necessity, reliability, and precautions to have been extradition for the crime of perjury. ... present and provided guidance for future cases: "We also acknowledge that possible audio and visual problems can develop with satellite transmis­ "We are mindful of the possible difficulty in de­ sion. It is incumbent upon the trial judge to moni­ termining when the satellite procedure should be tor such problems and to halt the procedure if employed. We are also aware of the possibility that these problems threaten the reliability of the cross­ such a procedure can be abused. Therefore, we are examination or the observation of the witness's de- establishing the following guidelines to aid in mak­ meanor." ing this decision. The determination is not simply a mathematical calculation, based on the number !d. at 709 So.2d 1370-72. of alleged public policy interests or state interests. Rather, the proper approach for determining when Ironically, the Eleventh Circuit, having sustained the satellite procedure is appropriate involves a Harrell's conviction in Harrell v. Butterworth, 251 finding similar to that of rule 3.190G) of the Flori­ F. 3d 926 (11th Cir. 2001 ), held unconstitutional on da Rules of Criminal Procedure. Rule 3.190G) pro- direct appeal the conviction of a federal defendant

142 Remote Witness Testimony I 29 at whose trial two prosecution witnesses testified by lack of a finding of necessity for the remote testi­ video conferencing from Australia. In an en bane mony and that its case, unlike Yates, involved nation­ opinion, a majority of the court in United States al security. A prosecutor arguing for use of remote v. Yates, 438 F.3d 1307 (11th Cir. 2006)(en bane) government testimony can argue two differing po­ soundly condemned remote prosecution testimony sitions: that modern remote testimony satisfies the as violating the confrontation clause. The federal Sixth Amendment confrontation clause per se or courts are divided on whether remote testimony that on the specific facts of the case there is suffi­ can satisfy the confrontation clause. Compare, e.g., United States v. Gigante, 166 F. 3d 7 5 (2d Cir. 1999), cient justification for the procedure, citing Maryland cert. denied, 528 p.S. 1114 (2000) (sustaining use) v. Craig, 497 U.S. 836, 850 (1990) and its require­ with United States v. Yates, supra and United States v. ment that "denial of such confrontation is neces­ Bordeaux, 400 F.3d 548 (8th Cir. 2005). sary to further an important public policy and only More recently, the Fourth Circuit sustained the where the reliability of the testimony is otherwise legality of a live two-way videoconferenced deposi­ assured." Abu-Ali, supra, at 528 F.3d 242. tion conducted from Saudi Arabia to Virginia in a terrorism case. United States v. Abu Ali, 528 F. 3d 210 It is worth noting that absent videoconferencing, (4th Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009): the testimony of unavailable witnesses in a crimi­

"A live, two-way video link was used to transmit the nal case may be had only by deposition or hearsay. proceedings to a courtroom in Alexandria. This Although the Supreme Court's decision in Crawford permitted Abu Ali and one of his attorneys to s~e v. Washington, 541 U.S. 36 (2004), prohibits pros­ and hear the testimony contemporaneously; it also ecutorial use of "testimonial hearsay," it does not allowed the Mabahith officers to see and hear Abu ban other forms of hearsay. Presumably, live cross­ Ali as he testified. A court reporter in Alexandria examination of a remote witness under oath, com­ transcribed the testimony in real time, and both plete with demeanor evidence, would be superior the witnesses and Abu Ali were videotaped during to hearsay. the depositions, so that the jury could see their re­ actions. The trial court presided over the deposi­ tion testimony of the Mabahith officials from the CONCLUSION • Videoconferencingis improving courtroom in Alexandria, ruling on objections as constantly. State-of-the-art "telepresence" installa­ they arose. Furthermore, Abu Ali was able to com­ tions can almost duplicate being in a room with a municate via cell phone with his defense counsel distant participant. At some point, it will be difficult in Saudi Arabia during the frequent breaks in the even to realize that a law firm colleague, opposing proceedings. In addition, the court was willing to counsel at a settlement meeting, or remote hearing stop the depositions if Abu Ali's counsel in Saudi participant, isn't within a few physical feet. We are Arabia wanted to consult with their client." in a transition stage in which our legal system has not yet fully adapted to even the present realities !d. at 528 F.3d 239 of videoconferencing, let alone what is to come. At At footnote 12 of the opinion, the court distin­ some point we will have to decide when, if ever, guished Yates on the grounds both that the 11th Cir­ physical presence is truly mandated and, as tech­ cuit's decision was the result of the district court's nology improves, why.

143 30 I The Practical Litigator September 2009

ARTICLES OF POTENTIAL INTEREST IN CHRONOLOGICAL ORDER

Laurie L. Levenson, Courtroom Demeanor: The Theater rif the Courtroom) 92 Minn. L. Rev. 573 (2008). Frank M. Walsh and Edward M. Walsh, Effective Processing or Assembly-Line Justice? The Use rif Telecoriferencing in Asylum Removal Hearing~ 22 Geo. lmmigr. LJ. 259 (2008). Comment: Christine L. Olson, Accusations from Abroad: Testimony rif Unavailable Witnesses via Live Two- Wcry Videocoriferencing Does Not Violate the Corifrontation Clause rif the Sixth Amendment) 41 U.C. Davis L. Rev. 1671 (2008). Martin Davies, Bypassing the Hague Evidence Convention: Private International Law Implications rif the Use rif Video and Audio Coriferencing Technology in Transnational Litigation) 55 Am.]. Comp. L. 205 (2007).

Zachary M. Hillman, Pleading Guilty and Video Telecoriference: Is a Drfondant Constitutionally «Present)) when Plead­ ing Guilty by Video Telecoriference?, 7]. High Tech. L. 41 (2007).

Comment, Anthony Garofano, Avoiding Virtual Justice: Video- Telecoriference Testimony In Federal Criminal Trial~ 56 Cath. U.L. Rev. 683 (2007).

Comment, Matthew]. Tokson, Virtual Corifrontation: Is Videocoriference Testimony by an Unavailable Witness Con­ stitutional?, 74 U. Chi. L. Rev. 1581 (2007). •

Fredric Lederer, It)s Prime Time .for Videocoriferencing in Court) Legal Technology News) October 11, 2006.

Aaron Haas, Videocoriferencing in Immigration Proceedings) 5 Pierce L. Rev. 59 (2006).

Aaron Harmon, Recent Development: Child Testimony Via Two- Wcry Closed Circuit Television: A New Perspective on Maryland v. Craig in United States v. Turning Bear and United States v. Bordeaux) 7 N.C.J.L. & Tech. 157 (2005).

Anne Bowen Poulin, Criminal Justice and Videocoriferencing Technology: The Remote DrfondantJ 78 Tul. L. Rev. 1089 (2004).

Nancy Gertner, Videocoriferencing: Learning Through Screen~ 12 Wm. & Mary Bill Rts.J. 769 (2004).

Amy S. Moeves & Scott C. Moeves, Two Roads Diverged: A Tale rif Technology and Alternative Dispute Resolution) 12 Wm. & Mary Bill of Rts.J. 843 (2004).

Fredric Lederer, The Potential Use rif Courtroom Technology in Major Terrorism Case~ 12 Wm. & Mary Bill Rts.J. 887 (2004).

Richard D. Friedman, Remote Testimorl)iJ 35 U. Mich.]. L. Reform 695 (2002).

Lynn Helland, Remote Testimony: A Prosecutor's Perspective) 35 U. Mich. LJ. 719 (2002).

Michael D. Roth, Commen~ Laissez-Faire Videocoriferencing: Remote Witness Testimony And Adversarial Truth) 48 UCLA L. Rev. 185 (2000).

To purchase the online version of this article, go to www.ali-aba.org and click on "Publications."

144 RECEIVED

JAN -. B 2014 ~ UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA 'I'ONY R. MOORE CLERK WESTERN DISTRICT dF LOUISIANA LAFAYETTE DIVISION U:FAYETTE. LOUISIANA

IN RE: ACTOS® (PIOGLITAZONE) MDL No. 6:11-md-2299 PRODUCTS LIABILITY LITIGATION JUDGE DOHERTY This Document Applies To: Allen, et. al. v. Takeda Pharmaceuticals MAGISTRATE JUDGE HANNA North America, Inc., et al. (Case No. 12-cv-00064)

MEMORANDUM RULING: MOTION TO ALLOW LIVE TESTIMONY VIA CONTEMPORANEOUS TRANSMISSION

This multidistrict litigation arises from product liability claims against the manufacturer

and marketer of Actos® and other drugs containing pioglitazone. Pending before this Court is

the Plaintiffs' Motion to Allow Live Testimony Via Contemporaneous Transmission. 1 For the

following reasons, the Plaintiffs' Motion will be GRANTED.

The trial of this, the bellwether case, within this multidistrict litigation, is scheduled to

begin on Monday, January 27, 2014. The Plaintiffs have moved for leave of CoUI1 to present

testimony via contemporaneous video transmission for certain witnesses who are Defendants'

cun-ent or former employees and whom Defendants, on December 23, 2013, declared will not be

among those witnesses Defendants can produce at the January 27, 2014 trial. While the

Plaintiffs' Memorandum does not include a list of the specific witnesses whose live video

testimony they seek, this CoUI1 assumes the witnesses recently identified to the Special Masters

at the Court's request, are those who are the subject of the instant motion.2 The Plaintiffs have

1 Rec. Doc. 3786. This motion has been urged on behalf of the Plaintiffs. The Plaintiffs' Memorandum in support is found at Rec. Doc. 3786-1 ["Memorandum"]; the Defendants' Memorandum in opposition is found at Rec. Doc. 3800 ["Opposition"].

2 These witnesses are: Corporate Representatives for Eli Lilly and Company, Takeda Pharmaceuticals International Inc., Takeda Pharmaceuticals U.S.A. Inc. (tka Takeda Pharmaceuticals North America Inc.), Takeda Pharmaceutical Company Limited, Takeda Pharmaceuticals LLC, Takeda Development Center America (tka 1 145 I not identified which of these witnesses' depositions, discovery or otherwise, might have been taken; they have not given this Court any particularized explanation of the testimony each witness is expected to proffer, the reason the witness is unavailable, or the purpose of each witness' testimony. Rather, Plaintiffs have simply asserted they wish to present live testimony by certain witnesses alleged to be former and current employees of Defendants, who are beyond this Court's ability to compel their attendance at trial in Lafayette, Louisiana, and whose testimony the Defendants have only recently declared they do not intend to present live at trial.3

The Defendants' opposition does not reflect any challenge to the Plaintiffs' assertions that: (a) there exist individuals the Plaintiffs seek to call as live witnesses at trial; (b) these witnesses are current and former employees of the Defendants; (c) these individuals are outside of the subpoena power of this Court to compel live appearance in Lafayette, Louisiana; and (d) the Defendants do not intend to use, or have not been able to use successfully, whatever influence, sway, or control they might have over such individuals to induce their voluntary appearance at trial.

I. Authority to Permit Live Testimony by Contemporaneous Transmission from a · Different Location

Rule 43 of the Federal Rules of Civil Proced1,1re establishes the rule that witness testimony at trial must be taken in open court, but grants federal courts the authority to permit

Takeda Global Research & Development Center Inc.), Takeda California Inc. (fka Takeda San Diego, Inc. (TSD)), and a corporate representative to testify regarding the organizational structure of all Takeda entities; together with specific witnesses: Chris Valosky; Chris Caggiano; Rich Daly; Virginia Blocki; Dan Orlando; Robert Spanheimer; Lawrence Mick Roebel; Mondira Bhattacharya; Anna Van Troostenberg; Glynn Belcher; David Recker; Claire Thoro; Doug Cole; Larry Ellingson; and Yasuchika Hasegawa. See Special Masters' Submission of Information [Rec. Doc. 3816].

3 See Special Masters' Submission of Information [Rec. Doc. 3816] filed January 6, 2014. The Scheduling Order, as amended, required the parties identify their will call witii.esses no later than January 2, 2014 (including a declaration as to which of those witnesses would be testifying live at trial). [Rec. Doc. 2657] When it came to this Comt's attention, in mid-December, that the Defendants were refusing to disclose to the Plaintiffs which of their current and former employees they would be bringing to trial, this Court, through the Special Masters, ordered both parties to declare which witnesses they would be bringing live on or before December 23, 2013.

2

146 appearance "in open court by contemporaneous transmission from a different location."

Specifically:

At trial, the witnesses' testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in of en court by contemporaneous transmission from a different location.

Thus, this Court has the authority to grant the Plaintiffs' request, but only upon a showing of good cause, compelling circumstances, and with approp1iate safeguards. The 1996 Advisory

Committee Notes - addressing the decision to grant this authority - noted the exception was not intended to swallow the rule:

The importance of representing live testimony in court cannot be forgotten. The very ceremony of trial and the presence of the factfinder may exert a powerful force for truthtelling. The opportunity to judge the demeanor of a witness face-to-face is accorded a great value in our tradition. Transmission cannot be justified merely by showing that it is inconvenient for the witness to attend the trial.

Consequently, as a practical matter, once a federal court finds circumstances exist justifying contemporaneous transmission of witness testimony from a location outside of the courtroom, a party must either (a) obtain voluntary agreement of the witness to attend trial by video conference or (b) issue a subpoena to compel the witness' appearance and testimony from that location.

Rule 45 of the Federal Rules of Civil Procedure governs issuance of subpoenas and recently received a substantial revision that took effect approximately one month ago, on

December 1, 2013. Pursuant to Rule 45, this Comt now, may issue a subpoena to a witness to

4 Fed. R. Civ. Pro. 43(a).

3

147 appear and testify; 5 the subpoena may be served at any place within the United States;6 and it

may command a person to attend a trial either: r

(A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or

(B) within the state where the person resides, is employed, or regularly transacts business in person, if the person (i) is a party or a party's officer; or (ii) is commanded to attend a trial and would not incur substantial expense. 7

II. Analysis

During the course of these proceedings, this Court repeatedly has advised the parties and

their counsel that this Court agrees with their collective, oft-stated desire for the parties not to

lose control of their case and not to allow this matter to become mired in the pretrial litigation

process, and takes seriously its duty to move these matters toward resolution as judiciously,

expeditiously, inexpensively, and responsibly as possible. It is of no moment to tbis Court

whether these proceedings are resolved by trial in this Court, amicably among the parties, or by remand to transferor courts for trial; it is impoqant only that this Court complete its assigned task

of managing pretrial procedures in a timely, judicially-efficient, and fair manner. As the multidistrict litigation proceeding assigned to this Court includes some 2,800 cases originating from across the United States, and moves in tandem with an even larger number of cases within various state courts across the United States, the task presented for both this Court and the parties is a complex, and multifaceted one. The parties, by agreement and based upon their respective choices, selected the use of "bellwether trials" as a means to aid this Court and them in their respective tasks. This Court, at the time, experienced celiain reservation as to their selection,

5 Fed. R. Civ. Pro. 45(a)(l)(A)(iii).

6 Fed. R. Civ. Pro. 45(b)(2).

7 Fed. R. Civ. Pro. 45(c)(l).

4

148 suggesting other less expensive and less cumbersome means might be more advantageous, but acquiesced to the parties' desire for "bellwether" trials. Thus, tllis Comi and the pru.iies began down the path of selection of and preparation of those cases agreed upon by the parties for trial as "bellwether trials" and we now come to the point of trial of the first agreed-upon "bellwether" trial. The first two cases selected originate from New York and Ohio, respectively, and are scheduled for Januru.·y 27, 2014 and April14, 2014. All involved parties waived any objection as to venue. Consequently, a case originating from New York- i.e. the Plaintiff(s) reside(s) in New

York - filed against Defendants, which have their principle places of business, generally, in lllinois, Indi';llla, _and California, by way of operation of the multidistrict litigation process, agreement ofthe parties, and respective choice of each party, finds itself being tried ill a Court in

Lafayette, Louisiana, which is in neither the state of origin of the matter, nor where any defendant maintains a principal place of business. Again, this court notes this tum of events came to be only by way of the paliies' choice, agreement, and expressed desire. Thus, the situation at hand creates circumstances which, outside the multidistrict litigation context, would likely not often arise, if at all, and would be highly unusual; however, within the multidistrict litigation context have become quite commonplace. Thus, the challenge for the Courts and parties engaged within a multidistrict litigation proceeding is to fashion the most efficient, judiciously sound and fair manner to perform the tasks assigned by Congress. 8

Good Cause. From the outset, counsel were advised this Court was open to re­ examination of old habits and routines which might have grown within the multidistrict litigation context that perhaps have, in some instances, created the types of Gordian knots that can lead to the stasis this Court and the paliies seek to avoid. Consequently, this Couli has made it clear

8 See 28 U.S.C. § 1407.

5

149 :fi:om the outset this Court would be open to consideling new ways of accomplishing the shared

goals of the Court and the parties to move this matter forward, consistent with the requirements

of due process, and within the applicable rules of procedure, using all available tools. After

setting the initial bellwether trial date for November, 2014, which setting allowed for the

commencement of discovery, this Court urged the parties to consider and discuss a number of

alternatives to the standard bellwether process. After months of seemingly fruitful discussions

and negotiations, together with considerable assistance and effort expended by the Special

Masters, the parties reported to this Court in Janua1y, 2013 that no agreement would be possible; that the Defendants insisted upon the use -of the standa1·d bellwether trial process; and that in light of that decision, Plaintiffs desired the first bellwether case be tlied in January 2014.

Shortly thereafter, this Court established a pilot bellwether program and issued the first of two scheduling orders, setting a series of bellwether trials, as the Defendants desired, and setting the first bellwether trial to begin Monday, January 27, 2014, as the Plaintiffs desired, with no

objection being lodged by any party.

This Court having considered the scope of these proceedings, the number of plaintiffs, the amount of discovery that will be required, and the time necessary to complete pre-tlial preparations, hereby establishes a Pilot Bellwether Program ["PBP"]. The PBP establishes a stream-lined trial preparation schedule for a minimum of two Pilot Bellwether trials. This Court is aware that the schedule established herein will place extraordinary burdens on this Court, counsel, and the parties. Nonetheless, this abbreviated schedule is imposed so as to serve the very important goal of moving these proceedings towa1·d completion of this Court's responsibilities in a reasonable timeframe.9

The Scheduling Order established deadlines, and set rules for discovery and pretrial preparation that accommodated the selected January 24, 2014 trial date, including specifications for the types of claims that would be eli,gible to be tried in the Pilot Bellwether Program; requiring that

9 Rec. Doc. 2359, at 1.

6

150 general discovery, document production, core discovery, and bellwether-specific discovery proceed simultaneously; required expert identification and the production of expert reports before discovery had been completed; and instmcted counsel to make significant efforts to produce witnesses for trial, rather than relying on deposition testimony. The parties have risen to the occasion, conducting discovery, document. production, and motion practice in a fashion which now brings us to the commencement of trial in open court as scheduled. In order to accomplish this laudable goal, this Court has been receiving weeki¥ oral reports from the Special

Masters, who have been tirelessly working with the parties facilitating the ongoing progress and forward movement of this case, and reporting to this Court on the progress of discovery and on difficulties that might have arisen, and any disputes that those difficulties might have triggered, as well as repmting on the agreements the parties have reached in their ongoing, good faith efforts to comply with this Court's deadlines, as well as the deadlines of numerous state courts in which Actos®-related litigation is pending and simultaneously proceeding to trial. This Court, also, has made itself immediately and continuously available to provide contemporaneous guidance, prompt rulings, and any requested input so as to, also, facilitate the forward progress of the matter at hand. 10 Among the agreements reached by counsel, and reported to this Court by the Special Masters, was the parties' agreement to delay the taking of certain and multiple discovery depositions until after the previously-set October 1 discovery deadline in order to accommodate serious scheduling conflicts which had developed for counsel in August and

September, and the parties' agreement to limit the number of trial depositions that could be taken by the Plaintiffs during the two months immediately prior to the commencement of trial on

January 27, 2014. With certain grave reservatiqns, this Court accepted the noted agreements.

10 The Court notes, once again, its appreciation to and recognition of counsel's outstanding efforts in these proceedings on behalf of their respective clients.

7

151 It should be noted at the outset this Comi responded to the pa1ties' expressed concern that

"with MDL cases often we lose control of our cases" by agreeing to adopt a "from the bottom up and not top-down" approach, allowing the pa1ties to "control their cases" by agreement, with guidance provided by the Special Masters and within the broad confines established by the

Court. Consequently, those agreements reached by the parties were and are shown great deference by tllis Comi whenever possible. The "broad confines" laid out by the Court are reflected within the orders of this Court and particularly relevant to this inquiry, the Scheduling

Order initially issued on February 19, 2013.ll Most importantly for purposes of this motion, in light of the time constraint created by the parties' agreements and choices, the Scheduling Order imposed the requirement upon both parties to assist trial preparation by bringing as many witnesses to trial as possible, rather than relying on depositions:

In an effort to streamline trial preparation as much as possible, the Court expects the parties to make significant efforts to produce witnesses for 12 tria/rather than relying 011 deposition testimony.

Significantly, according to the Plaintiffs, the witnesses Plaintiffs now wish to call live via contemporaneous transmission are all current or former employees of one or more of the

Defendants. There is no indication, from either party, of what efforts were made to produce or obtain voluntary agreement from the witnesses to appear at trial, in accordance with the instructions of this Court, however, this Court assumes the Plaintiffs would not be requesting such extraordinary relief if voluntary cooperation were a viable option. As previously noted, given the unique posture of this case, the parties were given notice and instructed that each was to "make significant effmi[ s] to produce witnesses at trial" ill. order to better facilitate trial preparation and best utilize the time available for trial preparation. The order was not limited to

11 Rec. Doc. 2359.

12 Id. at 5 (emphasis in original).

· 8

152 their own witnesses, given the self-induced time constraints. The Plaintiffs now argue that from

Defendants' December 23, 2013 declaration, it has only now become apparent a significant number of cunent or fanner employees of the various Defendants, necessary to the Plaintiffs' case, are not being brought to trial by the Defendants and, therefore, would be unavailable to the

Plaintiffs at ni.al without application of the processes provided by Rules 43 and 45 of the Federal

Rules of Civil Procedure. In response, the Defendants have made no effort to explain whether the witnesses are themselves unwilling to appear for trial; whether the Defendants have asked them to appear; whether the Defendants have chosen not to ask them appear; or how, if at all, the

Defendants have attempted to comply with tllis Court's Scheduling Order. Though lacking tllis information, this Court will assume the Defendants made at least some effort to comply with their obligation to make "significant efforts" to produce their own employees and fonner employees for trial and that, for whatever reason, they were unable to an·ange those appearances at trial.

Ideally, all witnesses would appear in Open Court and testify before the trier of fact; however, as the Federal Rules of Civil Procedure and its comments reflect, even in normal circumstances thls is not always possible. When not possible the rules first provided for depositions whlch could be read in Open Court, and as technology progressed, so did the rules, allowing for video depositions which could be played in Open Court, thus, allowing the witness to appear before the trier of fact at ni.al in this more beneficial fashion. Again, as technology has continued to evolve, so have the applicable rules, now allowing witnesses to appear in open court by "contemporaneous transmission from different location," but only "for good cause in compelling circumstances, and with appropriate-safeguards" and with the Corni's permission. As the comments caution, this evolution provides a tool to be used only when it serves "truth­ telling" and is not to be used when it would disserve that same "truth-telling" function of trial. 9

153 Consequently, the rule, itself, builds in and requires safeguards to protect the institution established by our founding fathers and which has, over time, been further fashioned through the lens of expedence and the evolution of technology. Rule 43 of the Federal Rules of Civil

Procedure allows for testimony in open court by "contemporaneous transmission from a different location," and Rule 45 provides the mechanisms to assure that appearance. It is this/these mechanisms the Plaintiffs wish to employ.

This Court sees the use of live tdal testimony as an essential aspect of tdal, thus its early instruction to counsel to facilitate such live testimony. This Court- for these purposes and based on past performance -, will assume the parties, despite what this Court believes to be the best efforts on all sides, simply were unable to make the necessary arrangements for producing the necessa1y witnesses at trial. Under these circumstances, and for the reasons described above and more fully explained below within the ~iscussion of the compelling circumstances whic~ exist, this Court finds good cause exists for using live witness testimony via contemporary transmission in order to best serve the trier of fact, and to protect the parties' trial date, as well as to protect the integrity of subsequent tdal dates currently pending in these proceedings .

. Compelling Circumstances. In this multidistdct litigation - a procedural fonnat in which large numbers of cases are aggregated in one district and under one judge for pretdal preparations, which was created by Congress and implemented by the Judicial Multidistrict

Panel, not necessarily voluntarily selected by the pruties - the parties are in full agreement the use of a bellwether tdal program is an appropriat~ and, they agree, necessary part of the pretdal preparations oftliee MDL proceedings. Not only is there no dispute as to this issue, the parties, themselves, selected the bellwether process. The expressed desirable and appropriate goal of employing a series of bellwether trials is reflected by the nomination of those cases for trial that can help generate infonnation for the use of "the parties and the court to determine the nature 10

154 and strength of the claims, whether they can be fairly developed and litigated on a group basis

·and what range of values the cases may have if resolution is attempted on a group basis."13

Consequently, the verdict in the bellwether hi.als, and in particular this first bellwether trial set to begin on January 27, 2014, will be used in this representative manner, and therefore, this first bellwether trial should present the testimonial evidence of both sides as fairly and completely as possible. The circumstances under which this first case has proceeded toward trial have reflected the goal inherent in the bellwether process; however, the bellwether process itself has created certain challenges to that goal, as well. The Plaintiffs' argument suggests they have not been and will not be able to obtain the necessary video trial depositions of the large number of defense witnesses they have only now learned the Defendants will not be able to produce at hial and whom they need in order to try their case properly, due to the Defendants' December

23, 2013 declaration, and the change to the scheduling order reflecting the attorneys' and witnesses' scheduling difficulties experienced over the past several months which resulted, in part, from the reality that the Defendants' counsel and witnesses have been participating in

Actos®-related state court litigation throughout the United States, thus, (a) making it impossible for the Plaintiffs to complete discovery and schedule the necessary depositions in this case; and

(b) resulting in the parties "still taking discovery depositions until a few days ago;" and (c) additionally, arguing the large number of motions filed plimarily by the Defendants in this case has had the effect of delaying resolution of select motions until the last weeks before trial; and

(d) the patties' continue to present disputed video depositions for evidentiaty resolution by this

Court. Consequently, notwithstanding their and the Court's best efforts, it is clear the parties and this Court simply will not be able to rule on the very large number of additional video deposition

13 MANuAL FOR COMPLEX LITIGATION,§ 22.315 (4th Ed. 2013).

11

155 transcripts and objections that would be required if the Plaintiffs were not pe1mitted to use the procedures established in Rules 43 and 45 to present live testimony at trial via contemporaneous transmission as to the recently identified cun·ent and former employees of the Defendants who the Defendants now declare they will not produce in Open Court. Consequently, for all the reasons noted above, and for the reasons contained in the discussion which follows, this Court finds the Plaintiffs have demonstrated there exists a compelling need for contemporaneous transmission of live testimony fi:om a different location of those current and former employees whom on December 23, 2013 they learned Defendants would not produce at trial. 14

This Court further notes that under the circumstances at hand, Rules 43 and 45 of the

Federal Rules of Civil Procedure are not being used in lieu of the more desirable live testimony in Open Court at the location of the Court, rather are being employed to more closely provide

"live" testimony in Open Court when the witnesses camzot appear in Open Court at the location of the Court and when video depositions are not a viable means of securing the appearance of those witnesses. Thus, this Court finds the employment to Rules 43 and 45 of the Federal Rules of Civil Procedure, under these circumstances, and for the good cause shown - would benefit and not undermine the inherent goal of our system of justice established by our forefathers, of the "powerful force of truth-telling." Under the circumstances at hand, the employment of Rule

43 is not because "it is inconvenient for the witnesses to attend trial," rather, this Court assumes the Defendants have made the ordered effort to make available those witnesses over whom they have control or sway. Consequently, the employment of Rule 43 is because, this Court assumes, the witnesses are not available for production in Lafayette, Louisiana by the Defendants as instructed by the Court within its Scheduling Order. Again, .this Court notes the Scheduling

14 See fn 3.

12

156 Order was specifically tailored to the unique challenges presented by the bellwether process within a multi district litigation, as well as the tmique time constraints necessitated by the parties' choices made within the IviDL process.

Additionally, this Court notes that, particularly at this stage of the proceedings, allowing contemporaneous live transmission likely would be substantially less expensive, and faster, than use of video depositions when one considers not only the time and expense required to take the video depositions, but also the attorney time and expense inherent in identifying deposition excerpts, making objections to those excerpts, and the time required to make the necessary mlings by the Court on those objections, as well as the time and expense of editing by a

·videographer after the Rulings are made. It is not, also, lost on this Court this expense of time by the attorneys would, now, be required at a time most critical in and for trial preparation- the two to three weeks immediately before commencement of trial. As Defendailts have only on

December 23, 2013, declared which witnesses they are able to produce, it seems without question time will not allow the full process involved with the taking and use of video depositions to be employed. For these reasons, as well as all noted above and which follow, this

Court, again, finds the spirit and intent of Rules 43 and 45 of the Federal Rules of Civil

Procedure are served by the process the Plaintiffs have proposed.

This Court has searched for and has not located any controlling jurispmdence issued by either the United States Supreme Court or the United States Court of Appeal for the Fifth Circuit or any other Circuit, on the issue presented by the Plaintiffs' motion, nor have the parties directed this Court to any such jurisprudence. Moreover, in the 17 years since Rule 43 was amended to provide specifically for the possibility of contemporaneous transmission of

13

157 testimony, if not the only decision directly applying Rule 43 in the context of a multidistrict litigation, certainly the most on point, is In re Vioxx Products Liability Litigation. 15

Judge Fallon, in Vioxx, adopted a five-factor test that originally was articulated in fu re

Washington Public Power Supply System Securities Litigation, 16 also, a multidistrict litigation decision, issued in 1988, several years before the ~996 amendment to Rule 43 setting out the good cause/compelling circumstances standard that this Court is bound to apply. Of the five factors used by Judge Fallon to evaluate whether compelling circumstances existed that would justify an order permitting conteniporaneous transmission oflive testimony,17 three cannot easily be applied by this Court to the facts of this case because neither party has provided this Court with the information necessary to determine who has control over the missing witnesses, why they aren't appearing, or what benefit accmes to the defense if they do not appear live at trial. 18

However, this case differs from both Washington Public Power Supply System Securities and Vioxx, as this Court issued a Scheduling Order specifically tailored to first bellwether trials instructing all pat1ies to "make significant efforts to produce witnesses for trial rather than relying on deposition testimony" in "an effort to streamline trial preparation as much as possible." The witnesses iu play, the Plaintiffs have indicated, and Defendants do not dispute,

15 439 F.Supp.2d 640 (E.D.La 2006) (Fallon, J.).

16 :MDL No. 551, 1988 WI.. 525314 (W.D.Wash. 8/9/1988).

17 Those five factors are: (1) control exerted over the witness by the defendant; (2) the complex, multi­ party, multi-state nature of the litigation; (3) the apparent tactical advantage, as opposed to any real inconvenience to the witness, that the defendant is seeking; (4) the lack of any true prejudice to the defendant; and (5) the flexibility needed to manage a complex multi-district litigation. See id. at 643, citing In re Washington Public Power Supply System Sec. Litig., MDL No. 551, 1988 WL 525314 (W.D.Wash. 8/9/1988).

18 As the dynamics in the instant case would appear to be similar to those in Vioxx, this Court would feel justified in making certain reasonable assumptions about the point and purpose of these witnesses' unavailability; however, such assumptions are not necessary because there are ample other reasons to justify granting the Plaintiffs' motion. Suffice it to say, the Defendants have not pointed this Court to any evidence that they will be harmed (other than perhaps tactically) by having their employees and former employees appear live by videoconference rather than by videotaped deposition.

14

158 are all cun:ent or former employees of the Defendants. Given this Com1's instruction to counsel that they should "make significant efforts to produce witnesses for trial . . ." and as the

Defendants' com1sel now do riot include these witnesses as among the ones they will be able to produce at trial, this Court- again, based on past compliance with this Court's orders by the

Defendants' counsel - will assume the witnesses, all former and cun:ent employees of the defendant companies, cannot appear in Lafayette, Louisiana for the January 27, 2014, trial. As noted, the Plaintiffs argue, and the Defendants do not dispute, the relevant witnesses are all cun:ent or former employees of Defendants, therefore, this Court assumes the Defendants would have whatever control or sway which might be available over the relevant witnesses.

Furthermore, as the witnesses are all outside the immediate subpoena power of this Com1 as to appearance at trial in Lafayette, Louisiana, without employment of the procedures established in

Rules 43 and 45 of the Federal Ru:les of Civil Procedure, which allow for appearance in open court by way of contemporaneous transmission from another location, the Plaintiffs cannot command the wit11esses' appearance in open cou11 in any way other than the contemporaneous transmission via video transmission or video deposition - which time now will not allow.

Additionally, this Com1 notes, as the witnesses are not disputed to be cun:ent or former employees of the Defendants, and, as it is the Plaintiffs who argue application of Rules 43 and

45, the risk of the Plaintiffs using Rules 43 and 45 as a trial strategy to avoid live appearance, likely, is not at play. Nor will this Com1 assume that the Defendants' failme to produce cm-fent

(and, if possible, former) employees is being employed as a trial strategy, as doing so would be a direct violation of this Com1's Scheduling Order.

As this Court has ah·eady acknowledged, the remaining two factors - the fact that this is a . . complex, multi-state, multidistrict litigation that requires flexible management- clearly weigh as heavily in favor of granting the Plaintiffs' motion as they did in both Vioxx and Washington 15

159 Public. Even more persuasive IS the point that, under the circumstances present in this bellwether case, contemporaneous transmission of live witness testimony will better allow the jury to more realistically "see" the live witness along with "his hesitation, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration/' without editing or the unavoidable esthetic distance created by a video deposition and, thus, more fully and better satisfy the goals of live, in-person testimony, while avoiding the short-comings of either written or video deposition testimony perhaps recorded weeks or months earlier, prior to whatever developments might have occurred between the time the deposition was recorded and the time the testimony by video deposition is presented at trial. 19 Furthermore, a trial, itself, is a dynamic, ever evolving 'process and the use of contemporaneous transmission of live testimony better allows for the witness and counsel to be responsive to the inevitable, unexpected developments and shifts that always occur during trial. In so doing, the jury is better and not less served as the witnesses - with the employment of Rules 43 and 45 - will be able to contemporaneously and most relevantly comment on the newest developments in real time and unedited watching and judging the witnesses as the trial unfolds - a possibility unavailable with previously recorded testimony or earlier more limited technology. Further, use of "live" contemporaneous transmission grants the trier of fact - here, the jury - the added advantage inherent in observing testimony in open court that is truly contemporaneous and part of the whole trial experience, thus, better reflects the fluid dynamic of the trial they are experiencing, and, better serves the goal of "truth telling."

!9 See Vioxx, 439 F.Supp.2d at 644, citing Arnstein v. Porter. 154 F.2d 464, 470 (2d Cir. 1946).

16

160 III. Defendants' Arguments

The Defendants have made three primary arguments opposing the Plaintiffs' motion.

Two will be addressed below; the third, opposing use of the In re Washington factors, is moot because this Court has not adopted those factors as determinative in this analysis.

A. Plaintiffs are trying to use Rule 43 to Expand the Scope of Rule 45 Subpoena Power

The Defendants begin their opposition to the Plaintiffs' Motion by misreading both Rule

43 and Rule 45, and by failing to read them in conjunction as part of the Federal Rules of Civil

Procedure. Specifically, the Defendants argue the 2013 amendments to Rule 45 pennit a Court to order a person to "attend a trial" only under certain circumstances, and that those circumstances do not include an order to "show up someplace" to have their testimony transmitted, via video transmission, to a courtroom "somewhere else."

It certainly is true that Rule 45 makes no mention of transmission of testimony via video to a courtroom, either to approve the issuance of subpoenas for such a purpose, nor to disapprove them; instead, Rule 43 allows for appearance "in open court" by such contemporaneous transmission, and Rule 45 provides the mechanism to secure such appearance. Nothing in Rule

45, itself, indicates the Rule must be read in the vacuum Defendants argue; to the contrary, Rule

45 ·must be read in tandem with Rule 43 and as a part of an harmonious whole that is the Federal

Rules of Civil Procedure. Rule 43 defines an appearance "at trial" in "open court," as including

"testimony in open court by contemporaneous transmission from a different location;"20 Rule 45 grants the mechanism to assure that appearance "in open court" by way of video transmission.

2°Fed. R. Civ. Pro. 43(a).

17

161 Rule 43 reads in pertinent part:

(a) IN OPEN COURT. At trial, the witnesses' testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise. For good cause in compelling circumstances and with appropriate safeguards, t/te court may permit testimony in oren cow·t by COiltemporaneous 'transmission from a different location?

Thus, the Defendants' argument is both myopic and flawed. A fair reading of the definition in

Rule 43 of an appearance 'IN OPEN COURT" "at trial," specifically includes an appearance via live transmission, together with a fair reading of the scope of activities pe1mitted to be ordered by subpoena under Rule 45 (specifically, a person may be ordered to "attend a trial"), establishes that the two Rules embrace and address the concept of appearance at "trial" to include contemporaneous live transmission from another location at the location of the Court. One would not argue that when using a written deposition or video deposition the witness is not appearing at trial "by way of deposition," at the location of the trial, notwithstanding the fact that the deposition was taken at another location. Nor would one argue Rule 45 would not allow the use of a subpoena to assure that "appearance by deposition." Here, contemporaneous transmission is now equally incorporated as proper trial procedure and an acceptable means of appearing at court and trial, as were written and video depositions, respectively, in the past. The subpoena power of Rule 45 of the Federal Rules of Civil Procedure is merely employed to facilitate yet another, now permitted, trial procedure and method of appearance. However, just as with video deposition when first embraced by the Federal .Rules of Civil Procedure, certain safeguards and requirements - as discussed above - must be found and permission granted by the

Court for contemporaneous transmission to be employed.

21 Fed. R. Civ. Pro. 43(a) (emphases added).

18

162 The Defendants' argued interpretation of the safeguards required for use of Rule 43 would nru.row the scope of the authodty granted to federal courts 'by allowing contemporaneous transmission only when the absent witness agrees to appear voluntarily; that is not the limitation(s) included within Rule 43 ofthe Federal Rules of Civil Procedure. No such limitation appears on the face of Rule 43, nor is found within the comments addressing the Rule, and this

Court will not impose such an unjustified gloss on the rule by judsprudential fiat.

For all the reasons discussed herein, this Court finds the Federal Rules of Civil Procedure specifically authodze a court to issue an order permitting contemporaneous transmission of live witness testimony as well as the issuance of a subpoena to compel such an appearance by a witness (within the location limits and under the conditions defined by Rule 45) for the purpose ofthe transmission efhis or her contemporaneous testimony at tdal, if the requirements included within both rules are heeded. This conclusion fmiher is bolstered by the expressed overarching policy detennination that the Federal Rules of Civil Procedure are to be "construed to secure the just, speedy, and inexpensive determination of any action or proceeding,"22 and this Court finds to allow the application of Rules 43 and 45 of Federal Rules of Civil Procedure, under the circumstances at hand, will for the reasons noted, aid in securing the just, speedy and less expensive determination of this proceeding.

B. No "good cause" or "compelling circumstances"

The Defendants argue good cause and compelling circumstances cannot be shown in this case, relying heavily on a number of decisions issued throughout the United States in which Rule

43 motions were denied.Z3 This Court has reviewed each of the cited cases and finds that none

22 Fed. R. Civ. Pro. 1.

23 See, e.g., Pahner v. Valdez, 560 F.3d 965 (9th Cir. 2009); Niemeyer v. Ford Motor Co .. 2012 WL 5199145 (D.Nev. 10/18/2012); Rodriguez v. SGLC, Inc., 2012 WL 3704922 (E.D.Cal. 8/24/2012); Garza- Castille v. Guajardo-Ochoa, 2012 WL 15220 (D.Nev. 1/4/2012); Cross v. Wyeth Phanns.. Inc., 2011 WL 2517211 19

163 involves a bellwether trial, within the context of a multidistrict litigation, nor do any present

comparably complex and unique circumstances as are present here, nor do any reflect the choices

made and agreements of the parties that exist in this matter, thus, making this case starkly

distinguishable fi·om the cases the Defendants cite. In the absence of any strongly persuasive

argument, this Court finds Defendants cases unpersuasive and distinguishable and further finds

that better guidance is provided by the other MDL cases discussed above, and the Rules

themselves. Tlns Comt further notes Rule 45 became applicable as amended after each of the

cases cited by Defendants/4 and after Rule 43 was amended to allow for appearance at trial by

way of contemporaneous video transmission fi·om another location.

Finally, the Defendants argue that the 1996 Advisory Committee Notes to Rule 43

· describe circumstances under which contemporaneous transmission from another location would

be permissible under the rule, as well as several circumstances under which contemporaneous

transmission of live witness testimony would not be permissible. Again, none of the

circumstances described in the Advisory Committee Notes are sufficiently similar to the ones

involved in this case for this Comt to assume those comments were intended to address a

situation such as the one at hand?5 Moreover, notwithstanding the Defendants' argmnent, the

Advisory Committee Notes are not intended to be, nor does this Court interpret them as

providing, an exclusive list of the "compelling circumstances" under which contemporaneous

(M.D.Fla. 6/23/2011); Matovski v. Matovski, 2007 WL 1575253 (S.D.N.Y. 5/31/2007); Dagen v. CFC Gro. Holdings Ltd., 2003 WL 22533425 (S.D.N.Y. 1117/2003).

24 See Vioxx, Washington Public. See also In re San Juan Dupont Plaza Hotel Fire Litigation, 129 F.R.D. 424 (D.P.R. 1990) (Acosta, J.)

25 For instance, "The most persuasive showings of good cause and compelling circumstances are likely to arise when a witness is unable to attend trial tor unexpected reasons, such as accident or illness" .... "Other possible justifications for remote transmission must be approached cautiously. Ordinarily depositions, including video depositions, provide a superior means of securing the testimony of a witness who is beyond the reach of a trial subpoena ..." Rule 43, Advisory Committee Notes, 1996 Amendment.

20

164 transmission of live testimony may be pennitted. The Notes do not discuss circumstances

comparable to the ones present in this case and, therefore, this Court does not find they are

controlling, nor persuasive, on the instant motion. Rather, one need only look to history to be

reminded the tools provided by the Federal Rules of Civil Procedure do and have over history

granted the parties the ability for innovation, change, and evolution reflecting the evolution of

relevant and available technology, which is necessary for the trial process to remain relevant in

an ever-changing litigation and technological landscape in order to best "secure the just, speedy

and inexpensive determination of any action or proceeding."

CONCLUSION

For the foregoing reasons, the Plaintiffs' Motion to Allow Live Testimony Via

Contemporaneous Transmission is hereby GRANTED under the following conditions and

safeguards:

I. THE COURT WILL COORDINATE COMMUNICATIONS WITH OTHER FEDERAL COURTHOUSES.

Magistrate Judge Hanna is hereby appointed to oversee and coordinate communications

with other federal comthouses, as well as with the information technology personnel employed

by the Clerk of Court for the Western District of Louisiana.

Absent further order of the Court, all witnesses shall appear at the nearest United States

Courthouse where they could be compelled to attend trial by subpoena under Fed.R.Civ.P. 45.

All witnesses will be required to abide by the local rules of the court where the transmission

originates insofar as attire, use of electronic devices, and public access is concerned. The party

calling the witness shall advise this Comt, at least fifteen (15) calendar days prior to trial, the

identity of the witness, the name of the courthouse in each district where the transmission will be

21

165 originated and the intended date(s) for each transmission. The Court will coordinate with the other districts to arrange for a specific location for the transmission and use of equipment

It shall be the responsibility of the party calling the witness to coordinate in those other district(s) all necessary personnel and logistical matters to allow for a timely and smooth transmission. This includes securing the attendance of a certified court reporter, providing the court reporter a copy of this protocol and insuring all exhibits have been timely provided to the court reporter as more fully set forth below.

II. THE COURTROOM IN LAFAYETTE, LOillSIANA

A. Additional Equipment

1. In addition to the existing evidence monitors, a video feed to and fi·om the location where the witness is present.

2. A movable screen to be placed in the courtroom to the right of the presiding judge such that the witness views the podium where the questioning attorney will conduct his or her examination and the entirety of the jury. A remotely operated camera will be mounted atop the screen.

3. A remote control operated locally that maneuvers the camera on the screen that is preset to allow the witness to see the Court, any lawyer who objects and the questioning attorney in rapid sequence.

4. The IT personnel will use their best efforts to present legible copies of exhibits to the witness through electronic means dependent upon capacity and local rules in the distant location. However, counsel are to provide backup paper copies of the exhibits intended to be presented to the witnesses in accordance with the procedure below.

22

166 B. Instructions for behavior in the Courtroom.

1. The Court, the Parties and Counsel will occupy their usual places in the

courtroom.

2. The Distant Witness.

a. Replaced by 65-inch screen in the courtroom ("witness screen").

b. Witness screen facing podium and jury box.

c. Full torso frontal image on witness screen at all times.

d. If technically feasible, the witness will be presented with all exhibits electronically. If not technically feasible, the witness will be presented a paper copy of the exhibit by the court repmier on instmction from counsel or the Comi .

e. Admitted exhibits and evidence shown electronically to the witness (pending mling on admissibility) will be shown on all courtroom screens with the exception of the image on the · witness screen, i.e., the witness will be displayed on the witness screen at all times.

3. Questioning attomey

a. Will address screen as if witness were on stand.

b. Normal rules for addressing the witness apply, i.e., face the witness, stand behind the podium, etc.

4. Side bars and objections

a. When side bar is allowed by the Court, the jury's sound will be automatically cut off as well as the sound to the distant location.

b. The witness hears all objections unless instructed by the Court, pursuant to a party's request.

III. THE COURTROOM OR OTHER LOCATION FROM WHICH TRANS:MISSION IS ORIGINATING

23

167 A. Persons present with witnesses. Spectators and counsel will not be allowed in the

room where the witness testifies. Present with the witness shall be a ce1tified comt

reporter and any court technical staff needed for the transmission.

B. Additional Equipment

1. Monitors for the witness to see the pertinent person(s), document and/or exhibits in the comtroom.

2. Adequate sound for the witness to hear any matters originating in Lafayette,

Louisiana shall be made through Mr. Brent Norris, this CoUii's audio and video technician.

C. Instructions for the Witness' Behavior

1. rhe witness will sit facing the camera.

2. A monitor will be placed in front of the witness such that the courtroom proceedings can be seen.

3. During questioning, the witness will have a full view of the attorney at the podium and the jury.

4. During objections, the witness will see a view of the courtroom well focusing on each attorney addressing the Court or the Judge when speaking.

5. Due to technical reasons, the monitor should not be "blacked out" for any reason.

Should there be a need for the witness not to look into hi~ monitor, the camera on the witness screen will pan to a neutral location and the audio will be muted if necessary.

6. The witness will see the Judge in the monitor whenever the presiding Judge addresses him or her, i.e., instruct or question. (Judge must address camera located over the witness screen).

24

168 7. Whenever feasible, documents or evidence will be shown to the witness electronically. If not feasible, documents available at the witness' location will be handed to the witness by the com1 reporter only on instruction by the Court or counsel.

D. Duties of Com·t Reporter

1. Identify for the record who is present with the witness before he or she starts to testify. The comtroom deputy in Lafayette will administer the oath to the witness. The court repmter in the place of transmission will provide the witness any documents which the witness is asked to refer to during his/her testimony and perform such other duties and functions as the

Com1 or counsel require.

'2. Stenographically record the arrival/departure times of the witness, the beginning/ending times of testimony and recesses, and the description of exhibits admitted or shown to witness. At the conclusion of the testimony, provide this record with all the exhibits to the Clerk of Com1, Western District of Louisiana, ATTN: Christine Guidry.

3. Breaks- In the event of a break, except as set forth below, the witness will remain in the room in the presence of the court reporter without communication to or from any person or other source. If there is an extended break the witness will be permitted to go to the rest room and be provided with lunch at the cost ofthe parties.

4. Instruct witness not" to talk to counsel during breaks unless allowed by the Court.

5. The court reporter in Lafayette will transcribe the testimony as the official record.

IV. MISCELLANEOUS INSTRUCTIONS

A. Documents to be shown to the witness. The party calling the witness shall furnish the comt reporter, at least two (2) worldng days prior to the transmission all documents, properly labeled and indexed, about which the witness will be asked in direct examination.

25

169 Any documents needed for cross-examination or redirect, and that are not available at the site of the testimony when cross-examination commences, shall be shown to the witness via electronic means if feasible.

B. Cost. The entire cost of the procedures authorized herein, any technical equipment that must be obtained as well as all logistical arrangements attendant to these procedures shall be home by the party calling the witness. This includes any expenses associated with necessary delays or adjournments and those wa.l.Tanted to complete cross-examination; provided, however, that any abuse of cross-examination, including repetitive or cumulative questioning, or any unnecessary prolonging of the testimony by repetitive, long or frivolous objections will result in allocation of costs due to delays to the party responsible.

C. Cancellation of testimony. In the event of cancellation of the testimony of any witness, the cost associated therewith shall be borne by the party calling the witness. If the cancellation was avoidable or resulted from matters within the cancelling party's control, the calling party shall bear the cost. Should the witness not be available to testify for a valid reason, the pmiy having control over the witness shall advise the paliy calling the witness immediately or else the cancelling party will bear all costs associated with the cancellation. . . D. Subpoena and option to testify in Lafayette, Louisiana. Any pat.iy seeking to compel the testimony of any witness pursuant to the procedures set forth herein shall serve upon the witness a subpoena at least ten (1 0) calendar days in advance of the intended testimony.

A witness subpoenaed to testify by way of a satellite transmission may elect to testify instead at trial in Lafayette, Louisiana, in which case all expenses related to such attendance shall be borne by the party calling the witness. This option, however, must be notified to the calling pat.iy at least seven (7) calendar days in advance of the date for the transmission in which case the calling party may either decline the option or the party having control over the witness will 26

170 bear the cost of any expenses related to the aborted video testimony if these could not be avoided.

E. Recalling of witnesses. A witness who testifies via video will not be allowed to subsequently appear in person at trial. His/her subsequent testimony, if allowed by the Court, will be either by way of subsequent video or deposition. In the event it is by way of video, the calling party shall bear all associated expenses.

THUS DONE AND SIGNED this --=...... ="'-----

27

171 ARTICLE: Bypassing the Hague Evidence Convention: Private International Law Implications of the Use of Video and Audio Conferencing Technology in Transnational Litigation Spring, 2007

Reporter 55 Am. J. Comp. L. 205

Length: 14704 words

Author: MARTIN DAVIES*

* Admiralty Law Institute Professor of Maritime Law, Tulane Law School; Director, Tulane Maritime Law Center. I thank Courtney Kent of the Tulane Law School class of 2004 for her research assistance on an earlier version of this project.

Highlight

New technologies for video and audio conferencing have made it possible to take testimony or depositions directly from witnesses in remote locations. This article considers the private international law issues that arise when a witness in one country gives evidence directly via conferencing technology to a court in another. The probative force of evidence given remotely from another country is affected if there is no effective sanction for perjury or contempt by the witness, or if the witness claims a privilege that would not be available in the jurisdiction where the court sits. The Hague Evidence Convention makes no provision for such situations, which must therefore be resolved by national law. This article undertakes a comparative analysis of the relevant law in several common law countries and stresses the need for a uniform international solution. Unless the Hague Evidence Convention provides that solution, it will become superseded in practice, at least so far as the evidence of witnesses is concerned.

Text [*205]

I. Introduction

Technological developments are changing the way that litigation is conducted. ''High tech" courtrooms are becoming increasingly common, with electronic filing and case management systems, electronic access to legal authorities and case records, laptop ports and wireless Internet routers, presentation of evidence on computer monitors and display screens and remote appearances via video-conferencing. 1 [*206] These developments are particularly

1 Fredric Lederer, Intro~uction : What Have We Wrought?, 12 Wm. & Mary Bill Rts. J. 637 (2004); Ros MacDonald & Anne Wallace, Review of the Extent of Courtroom Technology in Australia, 12 Wm. & Mary Bill Rts. J. 649 (2004); Richard Magnus, The Confluence

172 I 55 Am. J. Co~p. L. 205, *207 significant for transnational litigation because they can dramatically reduce the cost and difficulty of bringing evidence from one part of the world to another. 2 For example, it is now possible to conduct video conferences over the Internet, with the result that counsel or a witness can appear before a "high tech" courtroom from any place in the world where there is an Internet-linked computer and a webcam. 3 The use of these new technologies to reach across national borders raises many issues of private international law that have not yet been fully articulated. The purposes of this Article are to consider the private international law implications of using video-and audio-conferencing technology in civil proceedings to take depositions or testimony remotely from witnesses in foreign countries, to identify the issues that must be addressed and to suggest possible solutions. 4 Some of the issues are small ones about the way in which evidence must be taken, but they raise larger questions about the probative force of evidence taken in this manner, questions that must be resolved if the technology is to be as effective legally as it is technically.

Taking a witness's deposition or testimony directly from a remote foreign location allows the parties and the court to bypass the slow and cumbersome procedure of sending a letter of request to the judicial authorities of the foreign country under the Hague Evidence Convention, 5 or a letter rogatory to a non-Convention country. 6 The Convention was made in 1970, when video-and audio-conferencing [*207] technology was still a theoretical possibility rather than a practical reality. As a result, it requires the judicial authorities of one Contracting State to act as the eyes, ears and mouth of the courts in another Contracting State, taking evidence as their surrogate. The Convention provides for a letter of request to be sent from a judicial authority

of Law and Policy in Leveraging Technology: Singapore Judiciary's Experience, 12 Wm. & Mary Bill Rts. J. 661 (2004); Julian Borkowski, Court Technology in Canada, 12 Wm. & Mary Bill Rts. J. 681 (2004); Jeremy Barnett, The United Kingdom, 12 Wm. & Mary Bill Rts. J. 687 (2004); Nancy Gertner, High Tech Courtrooms, 49 Boston B.J. 8 (2005); Lucille M. Ponte, The Michigan Cyber Court: A Bold Experiment in the Development of the First Public Virtual Courthouse, 4 N.C. J. L. & Tech. 51 (2002).

2 See, e.g., Idoport Pty Ltd v. National Australia Bank (2000) 49 N.S.W.L.R. 51 (ordering use of Technology Court despite defendant's opposition because of the time and money that would be saved).

The Supreme Court of Singapore conducts bankruptcy petitions and criminal pre-trial conferences using the JusticeOnLine System, a web-based video-conferencing system that allows Bankruptcy Registrars to conduct chamber hearings via video conference with attorneys using desktop computers in their offices. See http://app. supremecourt.gov.sg/default.aspx?pg1D=361 (last visited July 11, 2006).

4 Video-conferencing is widely used in the criminal process, particularly for arraignments and in connection with child abuse cases. Henry H. Perrett, Video Depositions, Transcripts and Trials, 43 Emory L.J. 1071, 1077-78 (1994). The absence of the witness from the courtroom may infringe upon the defendant's right to confrontation, guaranteed under the Sixth and Fourteenth Amendments to the U.S. Constitution and under some state constitutions. This article is concerned only with civil proceedings with an international element. For a consideration of the use of video-conferencing technology in criminal proceedings, see generally, Anne Bowen Poulin, Criminal Justice and Videoconferencing Technology: The Remote Defendant, 78 Tul. L. Rev. 1089 (2004).

5 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, Mar. 18, 1970, 23 U.S.T. 2555, 847 U.N.T.S. 231 (hereafter Hague Evidence Convention). The Hague Evidence Convention appears as a Note to 28 U.S.C. §1781 and is available at http://hcch.e-vision.nl/index en .php?act=conventions.text&cid=82 (last visited June 2, 2006).

6 See, e.g., U.S. v. Paraffin Wax, 2255 Bags, 23 F.R.D. 289 (E.D.N.Y., 1959).

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173 55 Am. J. Comp. L. 205, *207 in one country to a competent authority in another country, 7 asking the latter to obtain evidence on behalf of the former. The witness is examined by the competent authority in the country where he or she is to be found, according to that country's law about methods and procedures, 8 but using the questions or statement of subject matter set out by the requesting court in the letter of request. 9 The results of the examination are then sent back in documentary form by the executing authority to the requesting court. 10 If the witness is in a foreign country that is not party to the Hague Evidence Convention, the procedure to obtain international judicial assistance is even more cumbersome and unwieldy. A letter rogatory is sent from the court in the United States to the court in the country where the witness is to be found, asking that court to take the witness's evidence. 11 The country receiving the letter rogatory is under no obligation to comply with the request; requests rest entirely upon the comity of courts toward one another and customarily embody a promise of reciprocity. 12 Often, the letter must be sent through diplomatic channels, requiring the participation of two foreign ministers and sometimes two justice ministers. 13 Given the slow and costly nature of the Hague Evidence Convention procedure and the process for letters rogatory, it is hardly surprising that litigants in the United States have shown a marked preference for using the more familiar techniques in the Federal Rules of Civil Procedure in international cases. 14 That option is only [*208] open because of the decision of the Supreme Court of the United States in Societe Nationale Industrielle Aerospatiale v. United States District Court. 15 In Aerospatiale, the Supreme Court held that the Hague Evidence Convention does not provide the exclusive procedures for obtaining documents and information located within the territory of a foreign country that is party to the Convention, and

7 Hague Evidence Convention, supra note 5, arts. I, 6. The request is sent to the designated Central Authority in the receiving country (id., art. 2), which forwards it to the authority competent to execute it (id., art. 6) unless it (the Central Authority) considers that the request does not comply with the requirements of the Convention (id., art. 5).

8 Id. art. 9.

9 Id. art. 2(f).

10 Id. art. 13. The documents establishing the execution of the Letter of Request are sent back through the Central Authority (see supra note 7) through which they were sent. ld.

II 22 C.F.R. §92.54 (defining "letters rogatory").

12 I d.

13 Andreas F. Lowenfeld, International Litigation and the Quest for Certainty, 1994-I Recueil des Cours 9, 245 (1995); Robert C. O'Brien, Compelling the Production of Evidence by Non-Parties in England under the Hague Convention, 24 Syracuse J. Int'l L. & Com. 77, 80 (1997). The letter may be sent either by the court directly or by the State Department on behalf of the court. 28 U.S.C. §178l(a),(b).

14 Richard M. Dunn & Raquel M. Gonzalez, The Thing About Non-U.S. Discovery for U.S. Litigation: It's Expensive and Complex, 67 Def. Couns. J. 342, 342-43 (2000). Most courts take the view that the party seeking the application of the Hague Evidence Convention procedures, rather than those of the Federal Rules, bears the burden of persuasion. In re Automotive Refinishing Paint Antitrust Litigation, 358 F.3d 288, 305 (3d Cir. 2004), Tulip Computers Intern. B.V. v. Dell Computer Corp., 254 F.Supp.2d 469, 474 (D.Del. 2003), In re Vitamins Antitrust Litigation, 120 F.Supp.2d 45, 51 n.7 (D.D.C. 2000) (collecting cases), Valois of America, Inc. v. Risdon Corp., 183 F.R.D. 344, 346 (D. Conn. 1997); Bodner v. Paribas, 202 F.R.D. 370, 372-73 (E.D.N.Y., 2000).

15 482 U.S. 522, 107 S.Ct. 2542 (1987).

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174 55 Am. J. Comp. L. 205, *208 that parties to U.S. litigation are free to use the procedures set out in the Federal Rules of Civil Procedure instead.

The Aerospatiale decision was severely criticized, both within the United States 16 and outside, 17 for being overly parochial by allowing use of domestic procedures instead of the internationally-agreed Hague Evidence Convention. Nevertheless, the principle for which it stands has since been adopted sub silentio by all those countries that are party to the Hague Evidence Convention but which have also, like the United States, made provision for video-or audio-conferenced testimony in transnational cases. Several Convention countries now have video-conferencing facilities in their courtrooms 18 and have made provision for testimony to be taken directly by video-link. 19 In order to take advantage of the speedier, cheaper, conferencing procedures in their domestic law, Convention countries must necessarily take the Aerospatiale position that recourse to the procedures in the [*209] Hague Evidence Convention is not mandatory. 20 To put the same point the other way around, any country that insists that the Hague Evidence Convention is mandatory and exclusive cannot use video-conferencing to take evidence directly from a witness in a Convention country, but must still use the cumbersome letter of request process. 21 For countries in that position, the only possible solution is to amend the Hague Evidence Convention by a Protocol making provision for the issues raised by the new technology.

16 See, e.g., Roger C. Wilson, The Hague Evidence Convention in U.S. Courts: Aerospatiale and the Path Not Taken, 17 Ga. J. Int'l & Comp. L. 591 (1987); James G. Dwyer & Lois A. Yurow, Taking Evidence and Breaking Treaties: Aerospatiale and the Need for Common Sense, 21 Geo. Wash. J. Int'l L. & Econ. 439 (1988); George A. Hermann, The Hague Evidence Convention in the Supreme Court: A Critique of the Aerospatiale Decision, 63 Tul. L. Rev. 525 (1989); Steven R. Swanson, Comity, International Dispute Resolution Agreements and the Supreme Court, 21 Law & Pol'y Int'l Bus. 333, 359-63 (1990); Andrew N. Vollmer, Revive The Hague Evidence Convention, 4 ILSA J. Int'l & Comp. L. 475 (1998).

17 See, e.g., William R. Slomanson, The U.S. Supreme Court and the Hague Evidence Convention, 37 Int'l & Comp. L.Q. 391 (1988).

18 See, e.g., the description of the "Technology Courts" at the Supreme Court of Singapore, one of the most technologically advanced courts in the world, available at http://app.supremecourt.gov.sg/default.aspx?pgiD=361 (last visited June 2, 2006). Singapore is not a member of the Hague Conference on Private International Law but has adopted the Hague Evidence Convention without Chapter II, which deals with the taking of evidence by diplomatic officers, consular agents and commissioners. See Hague Conference on Private International Law, Status Table Convention #20, available at http://hcch.e-vision.nl/index en.php?act=conventions.status&cid=82 (last visited June 23, 2006) (hereafter Status Table #20).

19 Australia: Federal Court of Australia Act 1976 (Cth), ss. 47 A-47F, Fed. Ct. Rules, 0. 69A, r. 13. Singapore: Evidence Act (Sing.), s. 62A. U.K.: C.P.R. Part 32.3.

20 One distinguished European commentator has asserted that most signatories do take the view that the Convention is not exclusive, although no citations are provided in support of that proposition. Rolf Stumer, Some European Remarks on a New Joint Project of the American Law Institute and UNIDROIT, 34 Int'l Law. 1071, 1073 (2000).

21 France and Germany seem to have taken that position, at least at one time. Hague Conference on Private International Law: Report on the Second Meeting of the Special Commission on the Operation of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, 24 I.L.M. 1668, 1678 (1985) (stating that German experts then considered the Convention to be exclusive); Brief of Amicus Curiae the Republic of France in Support of Petitioners, in Supreme Court Proceedings in Societe Nationale Industrielle Aerospatiale v. United States District Court, 25 I.L.M. 1475, 1526 (1986) (stating that under French law, the Convention is exclusive).

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175 55 Am. J. Comp. L. 205, *209

Amendment of the Hague Evidence Convention is desirable even for those countries that have effectively bypassed it, such as the United States, because many of the issues raised by the taking of testimony directly from remote locations would be resolved more smoothly and with greater international uniformity by agreement on a Protocol. Addressing the legal issues raised by video-and audio-conferencing technology is not just a matter of updating the Hague Evidence Convention, however: the same issues must be addressed when dealing with countries such as Canada, which are not party to the Convention. 22 Legislation is necessary to make effective provision for the use of video-and audio-conferenced testimony and depositions taken remotely from foreign countries, whether or not the country in question is party to the Hague Evidence Convention.

Section II of this Article considers when and how U.S. courts can take testimony and depositions from witnesses in foreign countries by video or audio conference. Section III undertakes a comparative analysis of the key issues that are raised when taking the testimony of willing witnesses, namely the administration of the oath and sanctions for perjury and contempt. Section IV deals with the issues raised when the witness in the foreign country is unwilling to give evidence. Section V deals briefly with the impact that the new technology has on jurisdictional questions.

[*210]

II. Taking Evidence from Witnesses Abroad: U.S. Provisions

A. Direct Testimony by Video or Audio Link from Remote Location

Rule 43(a) of the Federal Rules of Civil Procedure was amended in 1996 to permit "presentation of testimony in open court by contemporaneous transmission from a different location." 23 The amendment removed the doubt that had formerly existed about whether testimony given by video-link or telephone was "taken orally in open court" for the purposes of Rule 43(a). 24

Under the amended version of Rule 43(a), the court may only permit "contemporaneous transmission" evidence "for good cause shown in compelling circumstances and upon appropriate safeguards." 25 The Advisory Committee notes accompanying the 1996 amendment

22 Canada has also made provision for video-linked testimony and videotaped depositions. Fed. Cts. Rules, SOR/98-106, s. 32 (court hearing), s. 88(2) (examination out of court). Canada is not party to the Hague Evidence Convention. Status Table #20, supra note 18.

23 Fed. R. Civ. P. 43(a). "Contemporaneous transmission" includes live video-conferencing link. See, e.g., Norris v. Shiley, Inc., No. Civ.A. 97-1953, 1999 WL 1487499 (W.D. Pa., 1999) (evidence given by expert in California at trial in Pennsylvania by live video-conference under Rule 43(a)).

24 See Murphy v. Tivoli Enterprises, 953 F.2d 354 (8th Cir. 1992) (telephone testimony not taken "in open court"). Compare Official Airlines Guides, Inc. v. Churchfie1d Publ'ns, Inc., 756 F.Supp. 1393, 1399 n.2 (D.Or. 1990), affd on other grounds 6 F.3d 1385 (9th Cir. 1993) (permitting telephone testimony under prior version of Rule 43(a)).

25 Fed. R. Civ. P. 43(a).

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176 55 Am. J. Comp. L. 205, *210 took a very conservative v1ew of what would amount to "compelling circumstances," suggesting that foreseeable difficulty in attending at trial (such as, for example, in the case a witness living far from the forum court) would not be sufficient. 26 Some courts have followed that advice to the letter, holding that inconvenience to the witness in attending the trial at the court-room is not sufficient in itself to justify allowing her or him to give evidence by "contemporaneous transmission," 27 particularly if that inconvenience was apparent from the early stages of preparation for trial. 28 Other courts have been less cautious, accepting difficulty or inconvenience for the witness to attend in person as sufficient in itself to justify permitting testimony to be taken by "contemporaneous transmission." 29 In one [*211] case, the court noted that its interpretation of revised Rule 43(a) was at odds with that of the Advisory Committee, but suggested that the courts are now more receptive to new technology than the Committee was in 1996. 30

When the witness is in a foreign country, other factors may be relevant to the "good cause" inquiry, in addition to the inconvenience to the witness of traveling to court. For example, in Dagen v. CFC Group Holdings Ltd., 31 the U.S. District Court for the Southern District of New York quoted the Advisory Committee Notes in acknowledgment of the importance of presenting live testimony in court, but nevertheless gave permission for five witnesses to give testimony by telephone from Hong Kong, citing as reasons for doing so the cost of international travel, the impact on the defendants' business in Hong Kong if most of their staff were required to attend court in New York and possible difficulties for the witnesses in obtaining visas for entry to the United States. 32

26 Id., Advisory Committee notes to 1996 amendment.

27 Gulino v. Board of Educ. of City School Dist. of City of New York, No. 96 Civ. 8414(CBM), 2002 WL 32068971 (S.D.N.Y. 2003) (refusing to allow witness to testify by telephone or video-conference when only reason given for application was inconvenience to witness in traveling from California to New York); In re Henson, 289 B.R. 741, 743 (Bankr. N.D. Cal. 2003) (denying bankruptcy debtor's motion for leave to appear at trial by video-link when only reason given was that he had moved to Canada and would "likely still be there" at time of trial).

28 Air Turbine Technology, Inc. v. Atlas Copco, A.B., 217 F.R.D. 545 (S.D. Fla. 2003), aff'd 410 F.3d 701,712-14 (Fed. Cir. 2005) (refusing order requiring non-U.S. citizen witnesses to give video-conferenced testimony from Sweden because (inter alia) "Plaintiff has known from the early stages of this case that witnesses from outside of the United States would be testifying at trial").

29 Beltran-Tirado v. I.N.S., 213 F. 3d 1179 (9th Cir. 2000) (fact that witness lived in Missouri but trial was to be in San Diego amounted to "good cause" for Rule 43(a)); F.T.C. v. Swedish Match North America, Inc., 197 F.R.D. I (D.D.C. 2000) (same; witness in Oklahoma, trial in Washington, D.C.). See also Adam v. Carvalho, 138 Fed. Appx. 7, 8-9 (9th Cir. 2005) (unpublished disposition); Alderman v. S.E.C., 104 F.3d 285, 288 n.4 (9th Cir. 1997) (witness's credibility not undermined by fact that she testified by telephone); Carmody v. ProNav Ship Management, Inc., 224 F.R.D. 111, 115 (S.D.N.Y. 2004) (recalling witness who had given evidence in court in New York for further evidence by video-conference after he had returned home to Maine); Wood v. Valley Forge Life Insurance Co., No. 4:05-CV-00124GTE, 2006 WL 897656, 2 (E. D. Ark. 2006) (no prejudice to party in having its witness give video-conferenced testimony from Puerto Rico to court in Arkansas).

30 Swedish Match North America, 197 F.R.D. at 2.

31 No. 00 Civ. 5682(CBM), 2003 WL 22533425 (S.D.N.Y. 2003).

32 Id. at 1-2.

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177 55 Am. J. Cornp. L. 205, *211

Courts have displayed greater reluctance to allow testimony by "contemporaneous transmission" under Rule 43(a) when the remote witness is also a party to the action. 33 Personal impression is a crucial factor in persuasion, which is particularly relevant in the case of a witness who is also a party. 34 Also, remote testimony by a party witness may create difficulties for that party's attorney, who must choose between being present with her or his client and therefore being remote from the judge, jury and opposing counsel, or being present in court but remote from her or his client and thus unable to offer private advice and counsel. 35 Nevertheless, video-conferenced testimony has been allowed even from a party witness when other circumstances justify the need. 36

[*212] Many states have a rule similar in form to the original version of Federal Rule of Civil Procedure 43(a), stipulating only that testimony be "taken orally in open court." 37 In contrast, several states have made provision for transmission of testimony from witnesses in remote locations, often by emulating the 1996 federal amendment. 38 In those states that do not make specific provision for transmission of testimony from remote locations, the courts remain in the same state of doubt about allowing "contemporaneous transmission" testimony as federal courts were in before 1996: 39 some permit video-conferenced or telephone testimony under a rule equivalent to the pre-1996 federal Rule 43(a); 40 others do not. 41 Similarly, in those states that permit transmission of testimony from a remote location, state courts mirror the

33 Edwards v. Logan, 38 F.Supp.2d 463, 467 (W.O. Va. 1999); Rusu v. U.S. I.N.S., 296 F.3d 316, 322 (4th Cir. 2002); In re Henson, 289 B.R. 741, 743 (Bankr. N.D. Cal. 2003).

34 Edwards, 38 F.Supp.2d at 467.

35 Rusu v. U.S. I.N.S., 296 F.3d 316, 322 (4th Cir. 2002) (describing "Catch-22" for party witness's attorney).

36 See, e.g., Thornton v. Snyder, 428 F.3d 690, 697-99 (7th Cir. 2005) (allowing video-conferenced testimony by state prison inmate who was plaintiff in action based on 42 U.S.C. §1983 because of plaintiff's "extremely high escape risk").

37 See, e.g., Ala. R.Civ.P. 43(a); 16 Ariz. Rev. Stat. R.Civ.P. 43(f); Ga. Code Ann., §9-ll-43(a); Haw. R.Civ.P. 43(a); Idaho R.Civ.P. 43(a); 34 Ind. Code app. r. 43(A); Kan. Code Civ.P. §60-243(a); Ky. C.R. 43.04(1); Minn. R.Civ.P. 43 .0l(a); Miss. R.Civ.P. 43(a); N.M. R.Civ.P. 1-043(A); R.I. Super. R.Civ.P. 43(a); S.C. R.Civ.P. 43(a); S.D. Codified Laws §l5-6-43(a); Utah R.Civ.P. 43(a); Vt. R.Civ.P. 43(a); Wash. Super. Ct. Civ.R. 43(a)(l).

38 See, e.g., Ark. R.Civ.P. 43(a) (2005) ("contemporaneous transmission"); Colo. R.Civ.P. 43(i) (2005) ("absentee testimony"); D.C. Sup.Ct. R.Civ.P. 43(a) (1997) ("contemporaneous transmission"); Me. R.Civ.P. 43(a) (2005) ("contemporaneous transmission"); Mass. R.Civ.P. 30A(k) (2002) ("evidence by audio-visual recording"); Nev. R.Civ.P. 43(a) (2005) ("contemporaneous transmission"); N.D. R.Civ.P. 43(a) (1999) ("contemporaneous transmission"); W.Va. R.Civ.P. 43(a) (1996) ("contemporaneous transmission"); Wis. Stat. Ann. §807.13(2) (2006) ("telephone or live audio-visual means"); Wyo. R.Civ.P. 43(a) (1997) ("contemporaneous transmission").

39 See supra note 24.

40 In re M.H. 2004-001987, 120 P.3d 210 (Ariz. App. Div. l, 2005); Kroupa v. Indus. Claim Appeals Office of State of Colo., 53 P.3d 1192 (Colo. App. 2002); Sabhari v. Sapari, 576 N.W.2d 886, 894-95 (S.D. 1998). See also Esparza v. Skyreach Equipment, Inc., 15 P.3d 188, 192-93 (Wash.App. Div. I, 2000) (implying but not deciding that telephone or videotape testimony would be permissible under Washington rules).

41 Simpson v. Rood, 830 A.2d 4 (Vt. 2003); Rinehart v. Rinehart, 2000 Guam 14. See also Barry v. Lindner, 81 P.3d 537 (Nev. 2003), decided before Nevada amended Nev. R.Civ.P. 43(a) to allow for "contemporaneous transmission": see supra note 38.

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178 55 Am. J. Comp. L. 205, *212 federal courts' doubts about whether convenience to the witness is sufficient reason in itself to allow transmission of her or his testimony. 42

B. Depositions from Remote Locations

Rule 32(a)(3)(B) of the Federal Rules of Civil Procedure permits the deposition of a witness to be used ''by any party for any purpose" if the witness is more than 100 miles from the place of hearing or is outside the United States. Most states have equivalent provisions permitting depositions to be taken from witnesses who are outside the state. 43 Federal Rule 28(b) makes special provision for how depositions [*213] are to be taken when the deponent is in another country, setting out four options for administration of the oath to the deponent. 44 Although some issues of private international law obviously arise whenever a deposition is taken in a foreign country, those issues are not particularly difficult when deponent and authorized officer are together in the same place. Similarly, videotaping of depositions does not raise any complex legal issues in itself; it is merely another "non-stenographic" means of recording the witness's testimony. 45

In contrast, more complex legal issues are raised when the deponent is giving evidence in one country but the deposition is being recorded in another. That possibility arises because federal Rule 30(b )(7) permits depositions to be taken by telephone "or other remote electronic means."

42 In re Guardianship/Conservatorship of Van Sickle, 694 N.W.2d 212, 218 (N.D. 2005) (convenience to the witness not sufficient in itself).

43 See, e.g., Ala. R.Civ.P. 32(a)(3)(B); Alaska R.Civ.P. 32(a)(3)(B); Ark. R.Civ.P. 32(a)(3)(B); Fla. R.Civ.P. 32(a)(3)(B); Haw. R.Civ.P. 32(a)(3)(B); Idaho R.Civ.P. 32(a)(3)(B); Kan. Code Civ.P. §60-232(a)(3)(B); La. Code Civ.P. §1450(a)(3)(B); Minn. R.Civ.P. 32.01(c)(2); Miss. R.Civ.P. 32(a)(3)(B); Nev. R.Civ.P. 32(a)(3)(B); N.J. R. Ct. 4:16-l(c); N.M. R.Civ.P. 1-032(A)(3)(b); N.Y. Civ.Prac. L.R. 31l7(a)(3)(ii); N.D. R.Civ.P. 32(a)(3)(B); S.C. R.Civ.P. 32(a)(3)(B); Tenn. R.Civ.P. 32.0l(3)(B); Wis. Stat. §804.07(l)(c)l.b. (2001).

44 The deposition may be taken: (1) pursuant to any applicable treaty or convention, such as the Hague Evidence Convention, or (2) pursuant to a letter of request (whether or not captioned as a letter rogatory), or (3) on notice before a person authorized to administer oaths in the place where the examination is held, either by U.S. or local law, or (4) before a person commissioned by the court. Fed. R. Civ. P. 28(b).

45 The Federal Rules of Civil Procedure permit depositions to be "recorded by sound, sound-and-visual, or stenographic means." Fed. R. Civ. P. 30(b)(2). Fed. R. Civ. P. 30 was amended in 1970 and 1980 to allow for recording of depositions by means other than stenographic means. When the amendments were made, the rule was Fed. R. Civ. P. 30(b)(4). After further amendments in 1993, the relevant rule became Fed. R. Civ. P. 30(b)(2). Garonzik v. Whitman Diner, 910 F. Supp. 167, 170 n.l (D.N.J., 1995). The practice of videotaping of depositions became more widespread after 1993, when Fed. R. Civ. P. 30(b)(2) was amended to allow either party unilaterally to notice a video deposition, without stipulation or court approval. Michael J. Henke & Craig D. Margolis, The Taking and Use of Video Depositions: An Update, 17 Rev. Litig. 1, 6-7 (1998). As long ago as 1990, it was said that: '1n modem litigation the videotaping of depositions is becoming the norm rather than the exception." Masinga v. Whittington, 792 S.W.2d 940, 941 (Tex. 1990). Most states permit videotaping of depositions. See, e.g., 16 Ariz. Rev. Stat. R.Civ.P. 30(b)(4); Ark. R.Civ.P. 30(b)(3); D.C. Sup.Ct. R.Civ.P. 30(b)(2); Fla. R.Civ.P. 1.310(b)(4); Ga. Code Ann., §9-11-30(b)(4); Haw. R.Civ.P. 30(b)(2); IlL S.Ct. R. 206(g); Iowa R.Civ.P. 1.701(4); Kan. Code Civ.P. §60-230(b)(2); La. Code Civ.P. § 1440 (1990); Neb. Disc. R. 30(8); Neb. J.Ct. R.Civ.P. 30(b)(2); N.M. R.Civ.P. l-030(B)(2); N.Y. Ct. Rules, §202.15; 12 Okla. Stat. §3230(C)(3) (2005); Or. R.Civ.P. 39(C)(4); State ex rei. Anderson v. Miller, 882 P.2d 1109 (Or. 1994); R.I. Super. R.Civ.P. 30(b)(2); S.D. Codified Laws §l5-6-30(b)(4) (2005); Tex. R.Civ.P. 199.l(c); Vt. R.Civ.P. 30(b)(4); Wash. Super. Ct. Civ.R. 30(b)(4); W.Va. R.Civ.P. 30(b)(4); Wyo. R.Civ.P. 30(b)(4).

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179 55 Am. J. Comp. L. 205, *213

46 Several states have similar provisions allowing a witness in a remote location to be deposed by telephone or video-link. 47 One early federal decision raised doubts about whether [*214] Rule 30(b)(7) authorizes remote depositions from outside the United States, 48 but that view has been roundly condemned, 49 and there are many examples of depositions being taken remotely from foreign countries. 50 It has been held that a deposition taken remotely from a foreign country must also comply with the requirements of federal Rule 28(b ), which regulates the procedure for taking the deposition of a person in a foreign country. 51 One possibility for complying with Rule 28(b) is to take the deposition before a person authorized to administer oaths "in the place where the examination is held." 52 In the context of remote depositions under Rule 30(b )(7), that possibility raises the question of where the examination is "held" when the deponent is in one country and the recording of the deposition is in another. The question of the administration of the oath is considered in more detail in Section III, but for present purposes it suffices to observe that Rule 30(b)(7) provides that a deposition taken by telephone or other "remote electronic means" is taken in the district and at the place where the deponent is to answer questions. That suggests that the deposition complies with Rule 28(b)(3) if the oath is administered by someone authorized to do so in the U.S. district where the court is 53 or by someone authorized [*215] to do so in the country

46 Fed. R. Civ. P. 30(b)(7). This paragraph was first introduced in 1980 to permit depositions by telephone. Advisory Committee Notes, Fed. R. Civ. P. 30. It was amended in 1993 to permit depositions by "other remote electronic means." Id.

4 7 See, e.g., Alaska R.Civ.P. 30(b)(7); Ark. R.Civ.P. 30(b)(7); Cal. Code. Civ. Proc. §2025.310(a) (2004); Cal. R. Ct. 333; Colo. R.Civ.P. 30(b)(7); Conn. R. Super. Ct.§ 13-30(g); D.C. Sup.Ct. R.Civ.P. 30(b)(7); Ga. Code Ann. , §9-ll-30(b)(4); Haw. R.Civ.P. 30(b)(7); Tll. S.Ct. R. 206(h); Kan. Code Civ.P. §60-230(b)(6); La. Code Civ.P. § 1436.1 (2003); Minn . R.Civ.P. 30.02(g); Nev. R.Civ.P. 30(b)(7); N.M. R.Civ.P. 1-030(8)(7); N.Y. Civ.Prac. L.R. 3113(d) (2004); Okla. Stat. §3230(C)(6) (2005); R.I. Super. R.Civ.P. 30(b)(7); Tex. R.Civ.P. 199.1 (b); Vt. R.Civ.P. 30(b)(7); W.Va. R.Civ.P. 30(b)(8); Wyo. R.Civ.P. 30(b)(7).

4 K Jahr v. IU Int'l Corp., 109 F.R.D. 429, 432 n.3 (M.D.N.C. 1986) ("questionable" whether remote depositions outside United States authorized by Rule 30(b)(7)).

49 See, e.g., Loucas G. Matsas Salvage & Towage Maritime Co. v. Mrr Cold Spring, Nos. CTV.A. 96-0621, Civ.A. 96-0931, 1997 WL I 02491 at 1 n.l (E. D. La. 1997) ("strongly disagreeing" with "the speculation in Jahr'').

50 See, e.g., Anguile v. Gerhart, Civ. A. No. 93-94, 1993 WL 414665 (D.N.J. 1993) (deponent in Gabon); Rehau, Inc. v. Colortech, Inc., 145 F.R.D. 444, 446 (W.O. Mich. 1993) (deponents in Germany and Sweden); Loucas G. Matsas Salvage & Towage Maritime Co. v. Mrr Cold Spring, Nos. CIV.A. 96-0621 , Civ.A. 96-0931 , 1997 WL 102491 (E.D. La. 1997) (deponent in Poland); Sheehan v. Anderson, No. Civ.A. 98-5516, 1999 WL 1241087 (E.D. Pa. 1999) (deponent in Germany); Advani Enterprises, Inc. v. Underwriters at Lloyds, 2001 A.M.C. 660 (S.D.N.Y. 2000) (deponent in Egypt); Normande v. Grippo, 52 Fed.R.Serv.3d 182 (S .D.N.Y. 2002) (deponent in Brazil); U.S. v. Philip Morris USA, Inc., No. Civ.A. 99-2496(GK), 2004 WL 3253681 (D.D.C. 2004) (deponent in Australia); Watkins Syndicate at Lloyd's of London v. Polar Air Cargo, Inc., No. 03Civ.5290RCCDFE, 2004 WL 1622038 (S.D.N.Y. 2004) (deponent in Switzerland); Regal Electronics, Inc. v. Pulse Engineering, Inc., No. 503CV1296JW(RS), 2005 WL 3454\38 (N.D. Cal. 2005) (deponent in India). See also Unisuper Ltd. v. News Corp., No. Civ.A. 1699-N, 2006 WL 375433 at 2 (Del. Ch. 2006) (deponents in Australia).

5 1 Advani Enterprises, Inc. v. Underwriters at Lloyds, 2001 A.M.C. 660, 663 (S .D.N.Y. 2000) (remote depositions from Egypt "procedurally defective" unless they comply with Rule 28(b)).

5 2 Fed. R. Civ. P. 28(b)(3).

53 Note that this may not be the place within the United States where the questions are posed. Advisory Committee Notes to 1980 amendment, Fed. R. Civ. P. 30 ("The final sentence is added to make it clear that when a deposition is taken by telephone it is taken in the district and at the place where the witness is to answer the questions rather than that where the questions are propounded'').

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180 55 Am. J. Comp. L. 205, *215 where the deponent is. 54 Many states that have made provision for remote depositions have also provided that such depositions are effectively "taken in" two locations, both where the deponent is and where the court is. 55 In contrast, several states provide that the deposition is taken where the deponent answers, 56 which means that the authorized officer must be present in the same place, unless the parties agree otherwise. 57 Some states have made no provision about the location of the deposition, which obviously leaves open this important question. 58

The party seeking to take depositions from a remote location by telephone or video-link must establish a legitimate reason for its motion, without needing necessarily to show hardship to the witness in attending within the district of the forum. 59 The party opposing remote deposition then has the burden of establishing good cause why the deposition should not be conducted by telephone or other electronic means. 60 Generally, leave to take depositions by telephone or other remote electronic means should be granted liberally. 61

In Clem v. Allied Van Lines Intern. Corp., it was held that where the proposed deponent is the plaintiff, he or she must show extreme hardship before being allowed to make her or his deposition remotely [*216] by telephone or other electronic means, because he or she selected the forum and can properly be required to appear for deposition in that forum. 62 Although Clem has been followed, 63 there is another, more liberal, line of cases, allowing even

54 In contrast, Fed. R. Civ. P. 28(a), which deals with depositions within the United States, merely provides that depositions must be taken ''before" an authorized officer. As a result, a Rule 30(b)(7) remote deposition is inadmissible if the deponent is in one place within the United States and the authorized officer is in another, unless the parties agree on that procedure. Aquino v. Automotive Service Industry Ass'n, 93 F.Supp.2d 922, 923-24 (N.D. Ill. 2000) (remote deposition from within the United States "before" officer elsewhere in United States "technically inadmissible" without agreement); Hudson v. Spellman High Voltage, 178 F.R.D. 29, 32 (E.D.N.Y. 1998) (parties agreed that notary public need not be present with witness as required by Rule 28(a)).

55 See, e.g., Alaska R.Civ.P. 30(b)(7); D.C. Sup.Ct. R.Civ.P. 30(b)(7); Ga. Code Ann., §9-11-30(b)(4); Haw. R.Civ.P. 30(b)(7); Kan. Code Civ.P. §60-230(b)(6); Minn. R.Civ.P. 30.02(g); Okla. Stat. §3230(C)(6) (2005); R.I. Super. R.Civ.P. 30(b)(7); Tex. R.Civ.P. 199.1(b); W.Va. R.Civ.P. 30(b)(8).

56 See, e.g., Ark. R.Civ.P. 30(b)(7); Colo. R.Civ.P. 30(b)(7); Conn. R. Super. Ct. §13-30(g); Ill. S.Ct. R. 206(h); Nev. R.Civ.P. 30(b)(7); Vt. R.Civ.P. 30(b)(7); Wyo. R.Civ.P. 30(b)(7).

57 See supra note 54. Some states make explicit provision to that effect. See, e.g., Nev. R.Civ.P. 30(b)(7); N.Y. Civ.Prac. L.R. 3113(d).

58 See, e.g., Cal. Code. Civ. Proc. §2025.310(a) (2004); Cal. R. Ct. 333; La. Code Civ.P. §1436.1 (2003); N.M. R.Civ.P. 1-030(B)(7).

59 Cressler v. Neuenschwander, 170 F.R.D. 20, 21 (D.Kan. 1996); Fireman's Fund Ins. Co. v. Zoufaly, No. 93 Civ. 1890(SWK), 1994 WL 583173 at I (S.D.N.Y. 1994); Cacciavillano v. Ruscello, Inc., No. Civ.A. 95-5754, 1996 WL 745291 at 3 (E.D. Pa. 1996); Advani Enterprises, Inc. v. Underwriters at Lloyds, 2001 A.M. C. 660, 662 (S.D.N.Y. 2000); Brown v. Carr, 236 F.R.D. 311, 312 (S.D. Tex. 2006).

60 Jahr v. IU Int'l Corp. 109 F.R.D. 429, 431 (M.D.N.C. 1986); Advani Enterprises, Inc. v. Underwriters at Lloyds, 2001 A.M.C. 660, 662 (S.D.N.Y. 2000); Loughin v. Occidental Chern. Corp., 234 F.R.D. 75, 76 (E.D. Pa. 2005); Brown, 2006 WL 1409043 at 1.

6\ Jahr, 109 F.R.D. at 431; Normande v. Grippo, 52 Fed.R.Serv.3d 182 (S.D.N.Y. 2002); Brown, 236 F.R.D. at 312.

62 102 F.R.D. 938, 940 (S.D.N.Y. 1984).

63 U.S. v. Rock Springs Vista Development, 185 F.R.D. 603 (D.Nev. 1999) (applying Clem to non-resident intervenors); Sampathachar v. Federal Kemper Life Assurance Co., No. Civ.A. 03-5905, 2004 WL 2743589 (E.D. Pa. 2004).

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181 55 Am. J. Comp. L. 205, *216 non-resident plaintiffs to be deposed remotely upon a showing of hardship or inconvenience. 64

One factor that may be relevant in taking depositions remotely from other countries is the need for translation. If the witness cannot give evidence in English, so that translators must be used, or if her or his English is poor, or if documents must be translated into English, a deposition by telephone or other remote electronic means may be inappropriate. 65

III. Willing Witnesses: The Oath, Perjury and Contempt

A. Introduction

Most countries require witnesses to give sworn testimony, either by taking an oath or by giving a solemn affirmation. 66 The purpose of requiring sworn testimony is simple. Sworn testimony is regarded as more reliable and hence of greater probative effect than unsworn testimony, both because of the internal psychological stimulus to truthfulness that swearing an oath has on the witness, and also because of the external stimulus of the threat of sanctions for perjury. 67 In the common law world, at least, a witness can only be punished for giving false testimony if that testimony was sworn. 68 Within the limits set by privileges such as the privilege against self-incrimination, the witness can also be compelled by the court to answer a question, with the [*217] threat of punishment for contempt of court as the sanction for refusal. 69

The need to administer an oath to a witness giving testimony by telephone or video-link from another country raises several legal issues. First and most fundamentally, there is the question of who is to administer the oath. Is it to be an official of the court in the receiving country, or some public official in the country where the witness actually speaks? Secondly, if the witness lies during sworn testimony, which country's law of perjury applies: that of the country where the testimony is received, or that of the country where it is given? Thirdly, can the witness be held in contempt of court for refusing to answer a question when he or she is not physically present before the court?

64 Anguile v. Gerhart, Civ. A. No. 93-94, 1993 WL 414665 at 2-3 (D.N.J. 1993); Rehau, Inc. v. Colortech, Inc., 145 F.R.D. 444, 446 (W.D. Mich. 1993) (plaintiff's corporate officers); Normande v. Grippo, 52 Fed.R.Serv.3d 182 (S.D.N.Y. 2002).

65 American Intern. Telephone, Inc. v. Mony Travel Services, Inc., 203 F.R.D. 153, 155 (S.D.N.Y. 2001); Dubai Islamic Bank v. Citibank, N.A., No. 99 Civ. 1930(RMB), 2002 WL 1149699 at 15 (S.D.N.Y. 2002); In re Handy & Harman Refining Group, Inc., 295 B.R. 179, 183 (Bankr. D.Conn. 2003).

66 See, e.g., Australia: Evidence Act 1995 (Cth), s. 21(1); Canada: Federal Court Rules, SOR/98-1 06, s. 282(2); Singapore: Oaths and Declarations Act, c. 211, ss. 4, 5; U.S.: Fed. R. Evid. 603 (1987). Hereafter, any reference to an oath should be taken to include a reference to an affirmation, as it does in the U.S. Code. 1 U.S.C. §1 (1951).

67 For a historical account of the requirement of sworn testimony, see 27 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §6041 (2d ed. 1987).

68 See infra note 90 and accompanying text. Compare, for example, Swiss law, which makes it an offense to give false testimony even if unsworn: Marianne Roth, False Testimony in International Commercial Arbitration: A Comparative View, 7 N.Y. Int'l L. Rev. 147, 159-61 ( 1994), citing Schweizerisches Strafgesetzbuch, arts. 306-09.

69 See infra Section III(d) for a consideration of the sanctions for contempt.

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182 55 Am. J. Comp. L. 205, *217

B. Administering the Oath or Affirmation

Some countries regard the administration of oaths within their territory as raising issues of sovereignty. According to one view of sovereignty, the concept is deductive and monolithic. 70 Sovereignty is indivisible: a state possesses it in full or not at all, and any chipping away at the rights that flow from sovereign status is a threat to sovereignty itself. 71 The right to administer oaths and the complementary right to punish perjury are seen by some countries as sovereign rights, with the result that the exercise of those rights by foreign judicial or consular officers without permission is regarded as being a violation of sovereignty. 72 In such countries, the oath must be administered by a local official or, at the very least, permission must be sought from the local judicial authorities before an oath can be administered by an official from the country hearing the witness's testimony. 73

Another view of sovereignty regards it not as a monolithic whole but as a kind of ''bundle of competences," a basket of rights 4nd duties that may vary from country to country and from time to time. 74 According to that view, the administration of an oath by a foreign judicial [*218] officer does not necessarily threaten sovereignty, which can survive undiminished despite the exercise of rights by another country within the territory of the country where the witness gives evidence. 75

Because both views of sovereignty can be found in practice, any country preparing to take evidence remotely from a foreign country must make provision for both alternatives, as must any future Protocol to the Hague Evidence Convention. Provision must be made both for the oath to be administered by local officials in the country where the witness is to give evidence and, in the alternative, for the oath to be administered remotely from the country where the testimony is to be heard. 76

70 This view of sovereignty has been described as the "chunk theory." Michael Ross Fowler & Julie Marie Bunck, Law, Power and the Sovereign State 64-69 (1995).

71 Id. at 64, quoting Inis L. Claude, Jr., National'Minorities: An International Problem 32 (1955) for "in full or not at all."

72 William H. Baker, Obtaining Evidence: International Discovery Techniques - The Taking of Evidence Abroad for Use in American Courts, in International Business Litigation and Arbitration 2003, 173, 183 (2003).

73 See U.S. State Department Circular, Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, available at http://travel.state.gov/law/info/judicial/judicial 689.html (last visited June 2, 2006).

74 This has been described as the "basket theory." Fowler & Bunck, supra note 70, at 70-80, quoting Hans Blix, Sovereignty, Aggression and Neutrality 11-12 (1970) for "bundle of competences."

75 Hague Evidence Convention, supra note 5, arts. 16 & 17, provide that a diplomatic officer, consular agent or judicial commissioner from another Contracting State may take evidence in a Contracting State if that State has given its permission generally or in a particular case. The United States and the United Kingdom have both given permission generally. Status Table #20, supra note 18 ("The United States declares that evidence may be taken in the United States under Articles 16 and 17 without its prior permission"); Oaths and Evidence (Overseas Authorities and Countries) Act 1963 (U.K.), s. 1 ("Any person appointed by a court or other judicial authority of any foreign country shall have power in the United Kingdom to administer oaths for the purpose of taking evidence for use in proceedings, not being criminal proceedings, carried on under the law of that country").

76 Or possibly even both: see Edmonton (City) v. Lovat Tunnel Equipment, Inc., 260 A.R. 259, para. 23 (2000, Alta.) (Lee, J.) (ordering oath to be administered via video-conference and also at the witness's locale).

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183 55 Am. J. Comp. L. 205, *218

If the country from which the transmission is to be made does not object to the administration of oaths by foreign judicial officers, a deponent can be sworn either at the place of transmission or remotely from the United States by someone authorized to do so in the U.S. district where the court is. 77 That is also true for some, but not all, state courts; some states require the oath to be administered at the place of transmission. 78 If the deposition is to be transmitted from within the limits of an American consulate, embassy or legation, the oath can be administered to the deponent by a consular officer or the secretary of the embassy or legation. 79 Alternatively, if the deposition is to be transmitted from somewhere outside American diplomatic premises, the oath can be administered by a person commissioned by the court in the United States to take the deposition and administer the oath. 80

A witness giving direct testimony to a court in the United States from within American diplomatic premises can be sworn by the relevant [*219] diplomatic officials, just as ·a deponent can, 81 but there is no provision specifically authorizing the court in the United States to commission someone to administer an oath or affirmation to a witness who is to testify from outside diplomatic premises, 82 nor is there any provision specifically authorizing the judge or clerk of the court to administer the oath remotely from the United States. The provisions of the U.S. Code authorizing justices, judges, clerks of court and their deputies to administer oaths are cast in general terms, without reference to location, and without any requirement that the person to whom the oath is administered be "before" the judge or clerk. 83 Similarly, Federal Rule of Evidence 603 requires the witness to declare by making an oath before testifying that he or she will testify truthfully, but it does not specify that the oath must be made in the physical presence of the person administering the oath. 84 Thus, it may be possible for the judge or clerk in the United States to administer the oath remotely to a witness in a foreign country, but it would be preferable if that were spelled out explicitly in the legislation, as it is in other countries. Similarly, it would be preferable if the U.S. legislation were to make it clear that a person other than a diplomatic official can be commissioned to administer oaths to witnesses (other than deponents) outside U.S. diplomatic premises. For example, the Federal Court of Australia Act 1974 (Cth), s. 47E provides:

77 See supra notes 52-54 and accompanying text.

78 See supra notes 56-57 and accompanying text.

79 22 U.S.C. §4215 (1994) (consular officer); 22 U.S.C. §4221 (1998) (consular officer or secretary of embassy or legation). See, e.g., Madanes v. Madanes, 199 F.R.D. 135, 141-42 (S.D.N.Y., 2001).

80 22 C.F.R. §92.53 (1995); Fed. R. Civ. P. 28(b)(4). The commission to take the deposition brings with it the power to administer an oath or affirmation. Id.

81 See supra note 79.

82 22 C.F.R. §92.53 (1995) and Fed. R. Civ. P. 28(b)(4) refer only to a "commission to take depositions" (emphasis added).

83 28 U.S.C. §§459 (justices and judges), 953 (clerks of court and their deputies).

84 Fed. R. Evid. 603 (1987).

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r 55 Am. J. Comp. L. 205, *219

An oath to be sworn, or an affirmation to be made, by a person (the remote person) who is to give testimony by video link, audio link or other appropriate means in accordance with this Part may be administered:

(a) by means of the video link, audio link or other appropriate means in a way that, as nearly as practicable, corresponds to the way in which the oath or affirmation would be administered if the remote person were to give testimony in the courtroom or other place where the Court or the Judge is sitting; or

(b) if the Court or the Judge allows another person who is present at the place where the remote person is located to administer the oath or affirmation - by that other person.

If the country from which the transmission is to be made does object to the administration of oaths by foreign judicial officers, then the court receiving the testimony or deposition must send a request to the judicial officers in the country in question, asking them to administer [*220] the oath. If the country is party to the Hague Evidence Convention, the request may be sent under the Convention, which permits contracting states to request other contracting states to obtain evidence "or to perform some other judicial act." 85 If the country in question is not party to the Convention, the request must be sent by ordinary letter rogatory. So far as the United States is concerned, these procedures may also have to be used for direct testimony transmitted from outside American diplomatic premises, if a generous reading of the relevant provisions of the U.S. Code does not permit the judge or clerk to administer the oath or affirmation remotely from the United States.

Because the appropriate procedure for administering the oath differs so much according to the attitude taken by the country from which the transmission is to take place, it is obviously important to determine in advance which method must be used. Sensibly, the U.K.'s Practice Direction on video-conferencing places the burden on the person arranging the transmission to make inquiries and to inform the court of what procedure must be followed:

Some countries may require that any oath or affirmation to be taken by a witness accord with local custom rather than the usual form of oath or affirmation used in England and Wales. The VCF [video conference facility] arranging party must make all appropriate prior inquiries and put in place all arrangements necessary to enable the oath or affirmation to be taken in accordance with any local custom. That party must be in a position to inform the court what those inquiries were, what their outcome was and what arrangements have been made. If the oath or affirmation can be administered in the manner normal in England and Wales, the VCF

85 Hague Evidence Convention, supra note 5, art. 1. There is very little authority on the interpretation of "other judicial act." The Special Commission Report in 1989 described a request by Canada for the experience of other jurisdictions in interpreting the expression "other judicial act" in art. 1, and gave the brief reply: "'other judicial act' referred to any act which had legal effect. An example might be the need to obtain an official consent to a marriage from a party residing abroad." Hague Conference on Private International Law: Special Commission Report on the Operation of the Hague Service Convention and the Hague Evidence Convention, 28 I.L.M. 1556, 1566-67 (1989).

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185 55 Am. J. Comp. L. 205, *220

arranging party must arrange in advance to have the appropriate holy book at the remote site. The associate will normally administer the oath. 86

Under U.S. law, evidence cannot be taken from a witness who has not made the relevant oath, 87 which means that the benefits of [*221] linking technology are lost altogether if the oath cannot be administered effectively. One possible response is to improve the provisions for administering the oath. Another is to accept testimony from remote foreign locations, even though it is unsworn, giving it appropriately less weight. For example, the Federal Court of Australia Act 1974 (Cth), s. 47A provides:

(2) The testimony must be given on oath or affirmation unless:

(a) the person giving the testimony is in a foreign country; and

(b) either:

(i) the law in force in that country does not permit the person to give testimony on oath or affirmation for the purposes of the proceeding; or

(ii) the law in force in that country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceeding; and

(c) the Court or the Judge is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation.

(3) If the testimony is given otherwise than on oath or affirmation, the Court or the Judge is to give the testimony such weight as the Court or the Judge thinks fit in the circumstances.

Even if the oath can be administered effectively, it may be almost meaningless if the witness cannot be punished for lying under oath. The probative value of sworn testimony depends in part on the possibility of sanctions for perjury. In the context of testimony or a deposition transmitted from a remote location in a foreign country, the next question is that of which country can or should punish the witness for lying under oath.

C. Perjury

If the witness gives false testimony under oath, he or she has lied in one country but has interfered with the judicial process in another. Whether that amounts to perjury in either country depends, of course, upon the definition of the offense in those countries. From the point of view of the country where the testimony is given, the main issue is whether lying under oath to the courts of another country amounts to perjury. From the point of view of the country where the evidence is received, there are two main issues: first, whether a statement

86 C.P.R. Part 32, Practice Direction - Written Evidence, Annex 3 (Video Conferencing Guidance), para. 16, available at http://www.lcd.gov.uk/civillprocrules fin/contents/practice directions/pd part32.htm (last visited June 2, 2006).

87 Fed. R. Evid. 603 (1987).

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186 55 Am. 1. Comp. L. 205, *221 made in another country can amount to perjury at all, and [*222] secondly, if so, whether there is any justification for an extra-territorial exercise of criminal jurisdiction. If the false testimony amounts to perjury in both jurisdictions, the further question arises of which country should punish the lying witness. If false testimony would not amount to perjury in either jurisdiction, the probative value of any witness's testimony is obviously diminished.

An example may help to illustrate these issues. Imagine a witness in Sydney, Australia, giving testimony directly by video-link in proceedings before a U.S. federal court in New Orleans, Louisiana. The oath is administered by the clerk of the court in New Orleans, and sworn on a Bible brought to the video-conferencing facility in Sydney by the witness herself. 88 The witness deliberately lies under cross-examination. Has she committed perjury in New Orleans? Has she committed perjury in Sydney?

The relevant Australian prohibition against perjury reads as follows: 89

Any person who in or in connection with any judicial proceeding makes any false statement on oath concerning any matter which is material to the proceeding, knowing the statement to be false or not believing it to be true, is guilty of perjury and liable to penal servitude for 10 years.

The relevant American provision is 18 U.S.C. §1621, 90 which provides:

Whoever-

( 1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true ...

. . . is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.

[*223] The Australian provision makes it an offense to make a false statement under oath in or in connection with "any judicial proceeding." There would be room for doubt about whether it would apply to foreign legal proceedings, 91 were it not for the fact that the statute, rather

88 Recall that this procedure is not clearly authorized by U.S. law. See supra notes 82-84 and accompanying text.

89 Crimes Act 1900 (N.S.W.), s. 327(1).

90 There are two provisions in the U.S. Code relating to perjury, 18 U.S.C. §§1621, 1623. For an examination of the distinctions between them, see Joseph Shifer, Perjury, 43 Am. Crim. L. Rev. 799, 813-16 (2006).

9 1 In Bayer, A.G. v. Minister for Health (1988) 13 I.P.R. 225, 296, Young, J. of the Supreme Court of New South Wales doubted whether perjury committed by a witness giving evidence by video-link from Massachusetts could successfully be prosecuted in New South Wales. This observation was made prior to the reforms made in New South Wales in 2000: see infra note 93.

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187 55 Am. J. Comp. L. 205, *223 unusually, contains a specific "localizing" provision. 92 The localizing section provides that an offense is committed for the purposes of the Act if all elements of the offense exist, disregarding geographical considerations, and if some elements of the offense are committed in the state of New South Wales, whether or not it has any effect there. 93 Both of those requirements are satisfied in our example. If one ignores any geographical considerations, all elements of the offense exist, because the witness made a false statement under oath in a judicial proceeding. Although the offense had no effect in New South Wales, it was committed there. 94 Thus, the witness committed perjury under New South Wales law by lying to the American court.

The American provision explicitly states that it applies to statements made outside the United States, but it also applies only to statements made under oath ''before a competent tribunal, officer or person." Purely as a textual matter, in order to hold the lying witness guilty of perjury, it would be necessary to hold that she was ''before" the clerk of the court in New Orleans who administered the oath to her, for the purposes of 18 U.S.C. §1621. If the transmission were to take place from the U.S. consulate in Sydney after an oath administered by a U.S. consular official, the witness's lies would undoubtedly amount to perjury. 95 More fundamentally, if the witness was guilty of perjury under U.S. law, it would still be necessary to find some justification, recognized in international law, for applying the U.S. statute extra-territorially to conduct occurring in Australia.

[*224] That justification could be found either in the objective territorial principle, which justifies the exercise of criminal jurisdiction when conduct outside the territory has an adverse effect within the territory, 96 or alternatively in the protective principle, by which the exercise

92 Localizing provisions expressly state the territorial and extra-territorial application of a statute. See David Kelly, Localising Rules in the Conflict of Laws (1974); Peter Nygh & Martin Davies, Conflict of Laws in Australia 40-42, para. [3.22] (7th ed. 2002); Stuart Dutson, The Territorial Application of Statutes, 22 Monash U. L. Rev. 69 (1996).

93 Crimes Act 1900 (N.S.W.), s.lOC, added by Crimes Legislation Amendment Act 2000 (N.S.W.), s.3, Sch. 1, para. 3.

94 See Crimes Act 1900 (N.S.W.), s.10B(2) (''The place in which an offence is committed is the place in which the physical elements of the offence occur").

95 22 U.S.C. §4221, which provides that perjury committed in U.S. diplomatic premises after administration of an oath by a consular or embassy official (see supra note 79 and accompanying text) may be "charged, proceeded against, tried, convicted and dealt with in any district of the United States, in the same manner, in all respects, as if such offense had been committed in the United States." See, e.g., U.S. v. King, 552 F.2d 833, 841 (9th Cir. 1976); Madanes v. Madanes, 199 F.R.D. 135, 141-42 (S.D.N.Y. 2001).

96 The territorial principle bases the exercise of criminal jurisdiction on the place where the offense is committed. Christopher L. Blakesley, Introduction: Brief Overview of the Traditional Bases of Jurisdiction over Extraterritorial Crime, in International Criminal Law 33 (M. Cherif Bassiouni ed., 2d ed. 1998); Frank Tuerkheimer, Globalization of U.S. Law Enforcement: Does the Constitution Come Along?, 39 Hous. L. Rev. 307, 315-18 (2002). Subjective territoriality applies in the standard situation where the offense or an element of it occurs within the state asserting jurisdiction; objective territoriality applies when conduct outside the territory has an adverse effect within the territory. Id. In the United States, the objective territorial principle is often associated with Holmes I.'s observation in Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 560 (1911) ("Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect, if the state should succeed in getting him within its power.").

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of criminal jurisdiction is based on a threat to important national interests. 97 By lying under oath in Sydney, the witness intended to have an adverse effect on the judicial proceedings in New Orleans, and the integrity of those proceedings is an important national interest of the United States.

Thus, it seems likely that the witness in our example has committed perjury in both New South Wales and Louisiana, and both would have justification for punishing her. Which jurisdiction should do so? As a matter of international law, it is not clear which country's sovereignty should yield when jurisdiction is asserted by both, because there are no general principles of customary international law governing such situations. 98 In cases of concurrent jurisdiction, however, the territoriality principle would probably be regarded as paramount. 99 That would produce the result that New South Wales would have the primary right to punish the lying witness, with the United States having the right to do so only if New South Wales did [*225] not. 100 However, it must be acknowledged that such a result is far from certain.

Concurrent criminal jurisdiction gives rise to the unattractive prospect of double or conflicting liability. 101 In the absence of established international law principles, the best way of avoiding that possibility is by way of international treaty, bilateral double tax treaties being perhaps the most familiar example. 102 In the context presently under consideration, the Hague Evidence Convention is the obvious vehicle for international cooperation. If the Convention is ever to be amended by Protocol making provision for video and audio linking technology, that Protocol should resolve any possible conflicts created by concurrent jurisdiction, by clearly allocating responsibility for punishment of perjury, either to the country in which the testimony is given or to that in which it is received. Considerations of practical convenience suggest that it should be the country where the testimony is given that has primary responsibility to punish the lying witness. However, the probative force of the witness's testimony is diluted to some

97 See Tuerkheimer, supra note 96, at 318-19; Michael Akehurst, Jurisdiction in International Law, 46 Brit. Y.B. oflnt'l L. 145, 157-59 (1974). The protective principle overlaps the objective territorial principle but differs from it in that it is not necessary for the acts in question to have any actual effect within the territory, provided there is a threat to national interests. See, e.g., U.S. v. Khalje, 658 F. 2d 90, 92 (2d Cir. 1981) (jurisdiction based on protective principle where no actual effects in U.S. to justify use of objective territorial principle).

98 Louis Henkin, International Law: Politics, Values and Functions, General Course on Public International Law, 216 Recueil des Cours 9, 282-85 (1989-IV); M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Tnt'] L. 81, 82 (2001) ("Private international law has not yet developed rules or criteria of sufficient clarity to consider priorities in the exercise of criminal jurisdiction whenever more than one state claims jurisdiction"); Akehurst, supra note 97, 168 ('1nternationallaw ... does not provide for choosing among competing bases of jurisdiction to prescribe rules of conduct").

99 Henkin, supra note 98, 282-83, 310-11; Akehurst, supra note 97, at 168.

100 See, e.g., U.S. v. Reagan, 453 F. 2d 165 (6th Cir. 1971) (defendant charged under U.S. law of voluntary manslaughter committed on a U.S. vessel in German port; German authorities had considered charging defendant but decided not to do so; court said U.S. was justified in punishing because there had been no assertion of jurisdiction by the local sovereign, Germany).

101 Akehurst, supra note 97, at 167-69.

102 Tapio Puurunen, The Legislative Jurisdiction of States Over Transactions in International Electronic Commerce, 18 J. Marshall J. Computer & Info. L. 689, 712 (2000).

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189 55 Am. J. Comp. L. 205, *225 small extent by the fact that the court in the receiving country must rely on the authorities in the transmitting country to respond to the lying witness's wrongdoing. Nevertheless, that seems to be an unavoidable consequence of accepting testimony from someone who is beyond the court's physical jurisdiction.

If false sworn testimony only constitutes perjury under the law of one of the two countries involved, problems of concurrent jurisdiction are avoided. 103 Administering the oath is still a meaningful process in such a case, as there is still the threat of some legal sanction if the witness lies although, as noted above, that threat is diluted if it is the transmitting country and not the receiving one that makes the witness's conduct an offense.

What would the position be if our example were reversed? If the lying witness were in New Orleans and the receiving court were in Sydney, it seems that the witness would not have committed perjury under either New South Wales law or U.S. law. There is room for doubt about whether the New South Wales provision would apply on its face to a false statement made in New Orleans as part of judicial [*226] proceedings in Sydney. 104 The statute's localizing section requires some element of the offense to be committed in the state of New South Wales. 105 The offense consists of the act of making a false statement under oath: being seen or heard to do so by judge or jury is not an element of the offense. If that is right, then it seems that there is no perjury under New South Wales law in the reversed example. There would clearly be no perjury under U.S. law if the oath was administered to the New Orleans witness remotely by the court official in Sydney, because no "law of the United States authorized [that] oath to be administered" for the purposes of 18 U.S.C §1621. The United States has declared that evidence may be taken in the United States under the Hague Evidence Convention without its prior permission, 106 but that does not amount to a law of the United States authorizing the Australian official to administer the oath. The witness is permitted to give her testimony voluntarily for use in the Australian proceedings because of 28 U.S.C. § 1782(b), 107 but that does not amount to a law authorizing the administration of an oath for the purposes of 18 U.S.C §1621.

If the witness cannot be punished in either country for lying under oath, her oath is essentially meaningless. It should follow that the witness's testimony should be given no more weight

103 See, e.g., R. v. Dix, 224 A.R. 50, 51-52 (1998, Alta.) (testimony to be given by witness in New York via video-link to court in Alberta; no sanction for perjury under Canadian law but lying under oath would constitute perjury by New York law).

104 In Bayer, A. G. v. Minister for Health (1988) 13 I.P.R. 225, 296, Young, J. of the Supreme Court of New South Wales doubted whether perjury committed by a witness giving evidence by video-link from Massachusetts could successfully be prosecuted in New South Wales.

105 See supra note 93 and accompanying text.

106 See supra note 75.

107 This chapter does not preclude a person within the United States from voluntarily giving his testimony or statement, or producing a document or other thing, for use in a proceeding in a foreign or international tribunal before any person and in any manner acceptable to him." 28 U.S.C. §1782(b).

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190 55 Am. 1. Comp. L. 205, *226

than if it were unsworn. 108 However, if the oath in the reversed example were to be administered by a federal district judge or clerk of the court in the United States pursuant to a letter of request from the Australian court, 109 then the witness would have lied having taken an oath before a U.S. judicial officer, which would be sufficient to amount to perjury under 18 U.S.C. §1621. The probative weight of her evidence in the Australian proceedings would therefore be enhanced, which would be reason enough in itself for the Australian court to request a judge in New Orleans to administer the oath rather than doing so itself remotely.

[*227] These two examples should serve to highlight the issues that countries must consider while waiting (perhaps indefinitely) for an international solution by way of Protocol to the Hague Evidence Convention. Because the relevant perjury statutes obviously vary greatly from country to country, there are many different possibilities, which may affect the weight that can be given to the witness's testimony. Before a court decides to accept remote testimony from a witness in a foreign country, it should make an assessment of the relevant perjury laws in both jurisdictions in order to determine what weight should be given to the witness's testimony. 110 So far as legislation is concerned, any country making provision for sworn testimony to be taken by linking technology from a witness in a foreign country should spell out whether its offense of perjury applies to such a witness, and if so, how. Just as importantly, in order to give effective assistance to foreign courts, countries should articulate whether and how their local laws of perjury apply to witnesses giving evidence in foreign proceedings. Section 131 (1.1) of Canada's Criminal Code provides an example:

Every person who gives evidence under subsection 46(2) of the Canada Evidence Act [which provides for evidence to be given in Canada by video-link in the "virtual presence" of a court outside Canada] ... commits perjury who, with intent to mislead, makes a false statement knowing that it is false, whether or not the false statement was made under oath or solemn affirmation . . . so long as the false statement was made in accordance with any formalities required by the law of the place outside Canada in which the person is virtually present or heard.

This provision operates on the assumption that the oath or affirmation is administered to the witness by the foreign court in accordance with its local law, 111 but it also makes it clear beyond doubt that lying to the foreign court constitutes perjury under Canadian law. That should obviate the need for (and the difficulties created by) an extra-territorial assertion of criminal jurisdiction by the country taking the evidence.

108 See, e.g., R. v. Dix, 224 A.R. 50, 52 (1998, Alta.) (weight of video-conferenced evidence affected if no sanction for contempt).

109 The district court of the district where a person is to be found may order that person to give her testimony for use in a foreign tribunal; if the order does not prescribe the practice or procedure to be that of the foreign country, the testimony is taken in accordance with the Federal Rules of Civil Procedure. 28 U.S.C. § 1782(a).

110 See, e.g., R. v. Dix, 224 A.R. 50, 51-52 (1998, Alta.) (assessing whether video-conferenced evidence from New York to Alberta would be governed by legislation in either jurisdiction). lll Canada therefore appears to subscribe to the "basket" theory of sovereignty: see supra note 74 and accompanying text.

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[*228]

D. Contempt

In most common law jurisdictions, the power to punish for contempt of court is part of the court's inherent power. 112 Refusal by a witness to answer a question constitutes contempt, 113 unless that refusal is protected by some privilege or other legal justification. 114 There can be little doubt that it would amount to contempt (prima facie, at least) for a witness giving evidence by video or audio link to refuse to answer a question, because the contempt power extends to conduct beyond the confines of the courtroom. 115 A distinction is often made between direct and indirect contempt, the former taking place in the presence of the court and the latter occurring outside that presence. 116 It is quite possible that contempt occurring via video or audio link should properly be regarded as direct, because the witness is in the "virtual presence" of the court, 117 and the refusal to answer can be seen or heard directly by the court, 118 which thus need not rely on other evidence to establish that the contempt occurred. 119

112 Australia: Re Colina; Ex parte Tomey (1999) 200 C.L.R. 386, 395; Canada: MacMillan Bloedel Ltd v. Simpson, [1995] 4 S.C.R. 725, 754; U.K.: Ahnee v. D.P.P. [1999] 2 A.C. 294, 303 (P.C.) (appeal taken from Mauritius); U.S.: Ex parte Robinson. 86 U.S. (10 Wall) 5,05, 510 (1873) (''The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power''); Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123, 2132 (1991). As a result, the contempt power is one of the least-regulated areas of judicial power. Joel M. Androphy & Keith A. Byers, Federal Contempt of Court, 61 Tex. B.J. 16, 18 (1998).

113 See, e.g., Australia: Hancock v. Lynch [1988] V.R. 173; U.K.: A.-G. v. Mulholland [1963] 2 Q.B. 477 (C.A.); U.S.: Jacobsen v. State, 384 N.E. 2d 1041 (Ind. App. 1979); State v. Brooks, 352 P. 2d 611, 614-15 (Hi, 1960); 28 U.S.C. §1826. Answering falsely as a means of avoiding the question amounts to perjury but not contempt. Australia: Coward v. Stapleton (1953) 90 C.L.R. 573, 578-79; U.S.: State ex rei. Lepper v. Kinder, 14 S.W. 3d 674, 677 (Mo. App., 2000).

114 See, e.g., Australia: Evidence Act 1995 (Cth), s.128(2) (court cannot require witness to answer in cases of self-incrimination); U.S.: Harris v. U.S., 382 U.S. 162, 86 S.Ct. 352 (1965) (privilege against self-incrimination).

115 See, e.g., Cooke v. U.S., 267 U.S. 517,45 S.Ct. 390 (1925); Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477 (1968); International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552 (1994); Young v. U.S. ex rei. Vuitton et Fils, S.A., 481 U.S. 787, 107 S.Ct. 2124 (1987), all dealing with out-of-court activity alleged to amount to contempt.

116 The distinction is particularly important in the United States, where summary adjudication is permissible for direct, but not indirect, contempt. Cooke, 267 U.S. at 534,45 S.Ct. at 394; International Union, 512 U.S. at 833, 114 S.Ct. at 2560. Not all direct contempts can be punished summarily; because serious con tempts are criminal, they must be tried before a jury, even if direct. Bloom, 391 U.S. at 198, 88 S.Ct. at 1480.

117 Canada Evidence Act 1985, s.46 speaks of a witness giving evidence by video-link as being in the "virtual presence" of the court.

118 One old case held that contempt occurs in the presence of the court when it is committed within the "ocular view" of the court. People v. McDonald, 233 Ill. App. 389 (Ill. App. 1st Dist. 1924).

119 This is one of the hallmarks of the distinction between direct and indirect contempt. See, e.g., Bloom v. Illinois, 391 U.S. 194, 204, 88 S.Ct. 1477, 1483 (1968) (''Before the 19th century was out, a distinction had been carefully drawn between contempts occurring within the view of the court, for which a hearing and formal presentation of evidence were dispensed with, and all other con tempts where more normal adversary procedures were required.")

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[*229] Even if not direct, it is clearly indirect contempt, even though committed in another country. 120

The main practical problem lies not in determining whether contempt has been committed, but in finding some effective means of sanctioning the witness's contempt if it does occur. It seems inconceivable that the court could order extra-territorial sanctions without some cooperation on . the part of the country where the witness's contempt occurred, a possibility that will shortly be considered in more detail. The court could order sanctions within its own territory that would take effect if the witness were later to enter that territory, but the impact of that threat on the witness would necessarily be muted, much less than the threat of immediate sanction that faces a witness physically present before the court. As a result, the probative force of the witness's testimony may be lessened. Indeed, some commentators have argued that evidence given by video-link must always be regarded as hearsay because of considerations such as these. 121 This seems too hasty and extreme a conclusion. 122 More suitably pragmatic was the attitude expressed by the Alberta Court of Queen's Bench in R. v. Dix: 123

It is true that difficulties may be encountered if the witness fails to answer proper questions or is otherwise uncooperative ... In my view, the fact that such difficulties might arise is not a principled reason to refuse this application in the circumstances of this case. If difficulties do arise, they can be met during the course of the evidence. As an extreme example, the evidence could be considered of no weight or the procedure could be discontinued.

The problem of enforcement and the related problem of probative force could both be overcome if the witness's refusal to answer were to amount to contempt by the law of the country where the evidence is given. This cannot be achieved quite as easily as making a deliberately false answer amount to perjury in the country where the answer [*230] is given. By refusing to answer the foreign court's questions, the witness does not act in contempt of any of the courts in the country where the refusal occurs. Even if the oath is administered to the witness by a local judicial official, it is by no means clear that a refusal to answer would amount to contempt, given that no judicial proceedings are taking place before that official. Although contempt is usually regarded as part of the court's inherent power, legislation is the only sure way of making a refusal to answer amount to contempt in the country where it takes place. Again, the Canadian legislation provides an example of how this might be done. Section 50(1.2) of the Canada Evidence Act 1985 provides:

120 See, e.g., Blackmer v. U.S., 284 U.S. 421, 52 S.Ct. 252 (1932) (refusal to comply with U.S. subpoena abroad amounted to contempt); U.S. v. Thompson, 319 F. 2d 665 (2d Cir. 1963) (same).

J2J Martin Dockray, Evidence by Television, 109 Law Q. Rev. 561, 563 (1992).

122 Cross on Evidence §13270 n.15 (John D. Heydon ed., 5th Aust. ed. 1996) rightly says that Dockray's view (supra note 121) "cannot be correct." See also Butera v. D.P.P. (Vic.) (1987) 164 C.L.R. 180, 186; B v. Dentists Disciplinary Tribunal [1994]1 N.Z.L.R. 95, 109.

123 224 A.R. 50, 54 (1998, Alta.). See also Lamesa Holdings, B .V. v. Commissioner for Taxation, unreported, Fed. Ct. Austl., Sackville, J., 30 July 1998, cited in Nygh & Davies, supra note 92, at 316 n.85 (video-link may be appropriate even when witness's credibility is likely to be challenged but all depends on circumstances of the case).

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193 55 Am. J. Comp. L. 205, *230

When a party or witness gives evidence under subsection 46(2) [which provides for evidence to be given in Canada by video-link in the "virtual presence" of a court outside Canada], the Canadian law relating to contempt of court applies with respect to a refusal by the party or witness to answer a question ... as ordered under that subsection by the court or judge.

If a refusal to answer does constitute contempt by the law of the place where it takes place, then there is the possibility of concurrent jurisdiction, because that refusal probably constitutes contempt in the place where the court sits, as well. The overlap should not cause any problems in practice,_though, as the court receiving the evidence should presumably be satisfied if the contempt is sanctioned by the country where the witness gives the evidence, and should take action itself only if the other country declines to do so. 124

More difficult questions arise if the witness invokes a privilege to justify a refusal to answer. Which country's laws should govern the availability of that privilege: those of the country in which the court sits, or those of the country where the witness gives the evidence? Consider, for example, the case of a journalist in Los Angeles, California, giving sworn testimony by video-link in proceedings before the High Court of Justice in London. The journalist is asked to reveal the source of information she used to write a particular story, but she refuses to do so. Under English law, that refusal would amount to contempt of court, as there is no privilege protecting journalists from disclosing their sources of information in court proceedings. 125 Under California law, however, the journalist could not be adjudged in contempt for refusing - to disclose her source. 126 Should the English [*231] court hold the journalist in contempt or should it recognize the witness's Californian right to refuse to answer?

The Hague Evidence Convention has a ready answer to this question in the context of examination of a witness pursuant to a letter of request. Article 11 provides that the witness may refuse to give evidence if she has a privilege to do so either under the law of the country where she is testifying or under the law of the country where the court making the request sits. 127 Thus, if our Californian witness were giving evidence to a Californian judge in Los Angeles pursuant to a letter of request from the court in London, she would most probably be entitled

124 See supra notes 99 and 100 and accompanying text.

125 A.-G. v. Mulholland, [1963] 2 Q.B. 477 (C.A.). The position is the same in Australia: see McGuinness v. A.-G. (Vic.) (1940) 63 C.L.R. 73; Independent Commission Against Corruption v. Cornwall (1993) 38 N.S.W.L.R. 207.

126 Cal. Evid. Code §1070 (1995), generally known as the "journalist's shield law." Strictly speaking, this provision does not create a privilege but merely an immunity from being adjudged in contempt. See Delaney v. Superior Court, 789 P. 2d 934, 939 n.6 (Cal. 1990). Thus, § 1070 does not prevent the use of other sanctions for refusal of a journalist to make discovery when he or' she is a party to a civil proceeding, for example. However, journalists do enjoy qualified privilege under California law in these circumstances as well. Mitchell v. Superior Court, 690 P. 2d 625 (Cal. 1984).

127 Hague Evidence Convention, supra note 5, art. ll. The privilege by the law of the requesting country (i.e., the country where the court sits) is available only if it has been specified in the letter of request or has been confirmed by the requesting authority at the instance of the requested authority. Id., art. ll(b).

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194 55 Am. 1. Comp. L. 205, *231 to refuse to answer. 128 That certainly seems to be the most desirable outcome, 129 and any future Protocol to the Hague Evidence Convention dealing with video-or audio-linked testimony should extend art. 11 to give the same protection to witnesses giving testimony by video or audio link.

Until that happens, however, the availability of privileges must be governed by the private international law of the court receiving the evidence. The general rule in common law countries is that the lex fori governs questions about evidence. 130 Academic commentators generally take the view that, in the absence of some relevant statutory provision, questions of compellability and privilege fall [*232] within the general rule and so are governed by the lex fori. 131 If that is so, then the High Court of Justice should regard the Californian witness in our example as being in contempt of court for refusing to answer the question put to her.

Although the English court's ability to sanction the witness effectively is limited, it still seems undesirable that she should be exposed to the risk of being found guilty of contempt by doing something in California which California law expressly says does not amount to contempt. At the very least, the position in relation to contempt and privilege should be explained to the witness before she takes the oath and begins to give her video-linked testimony. A better solution would be for countries unilaterally to adopt a rule similar to the Hague Evidence Convention, article 11, providing that a witness cannot be sanctioned for contempt for refusing to answer by virtue of a privilege available either by the law of the country where the testimony is given or by the lex fori. 132

IV. Unwilling Witnesses

Obviously, the only difference between willing witnesses and unwilling witnesses is in the need for compulsion. If an unwilling witness can be compelled to attend some place in another

128 Assuming, of course, that the word "privilege" in art. 11 is not to be construed strictly because, strictly speaking, the Californian witness does not have a privilege to withhold information about her sources: see supra note 126: However, the fact that the Californian statute provides that the witness cannot be punished for contempt for refusing to answer should surely be sufficient for the purposes of art. 11.

129 See, e.g., Kurt Riechenberg, The Recognition of Foreign Privileges in United States Discovery Proceedings, 9 Nw. J. Int'l L. & Bus. 80 (1988) and Christopher F. Dugan, Foreign Privileges in U.S. Litigation, 5 J. Tnt'! L. & Prac. 33 (1996), both arguing for the recognition of foreign privileges in the similar context of refusal to comply with U.S. discovery requests.

130 Australia: John Pfeiffer Pty Ltd v. Rogerson (2000) 203 C.L.R. 503, 542. U.K.: Bain v. Whitehaven & Furness Junction Rly Co. (1850) H.L.C. 1, 19; 10 E.R. I, 8; Korner v. Witkowitzer, [1950] 2 Q.B. 128, 162-63; In the Estate of Fuld, Deed. (No.3), [1968] P. 675, 694-95; 1 Albert V. Dicey & John H.C. Morris, The Conflict of Laws, p. 157, Rule 17 (Lawrence Collins et at. eds., 13th ed. 2000). U.S.: Societe Intemationale Pour Participations Industrielles et Commerciales, S.A. v. Brownell, 357 U.S. 197, 213, 78 S.Ct. 1087, 1096 (1958); Boersma v. Amoco Oil Co., 658 N.E.2d 1173, 1175, 1181 (Ill. App. 1 Dist. 1995); Restatement (Second) of Conflict of Laws §127 (1971).

131 I Dicey & Morris, supra note 130, p. 166, para. 7-024; Adrian Briggs, The Conflict of Laws 34 (2002).

13 2 In the United Kingdom, the Hague Evidence Cpnvention approach (privilege under either law: see supra text accompanying note 127) is applied whenever testimony is taken in the U.K. pursuant to a letter of request, whether or not that request was sent from a Convention country. Evidence (Proceedings in Other Jurisdictions) Act 1975, s. 3(l)(b). However, that stantte does not apply to the situation where evidence is given by video-link from or to the U.K.

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195 55 Am. J. Comp. L. 205, *232 country from which a transmission of his or her testimony or deposition can be sent, then his or her evidence can be taken from that remote location in the same way as that used for willing witnesses. A federal court may issue a subpoena requiring the appearance of a U.S. citizen or resident who is in a foreign country, 133 and refusal to obey that subpoena constitutes contempt of court, 134 but the court has no subpoena powers over foreign citizens in foreign countries. 135 Thus, if the witness is a foreigner, a U.S. court must ask for assistance from the courts in the foreign country to compel him or her to appear in a place from which the U.S. court can take that evidence by video or audio link.

[*233] Unfortunately, such a request can probably not be made under the Hague Evidence Convention in its existing form. Article 10 provides that in executing a Letter of Request under the Convention, the requested authority shall apply the same methods of compulsion in the same way as it would in an equivalent domestic matter. 136 Article 1 provides that a Letter of Request may be sent to request the competent authority to obtain evidence "or to perform some other judicial act," 137 but it goes on to provide that:

The expression "other judicial act" does not cover the service of judicial documents or the issuance of any process by which . . . orders are executed or enforced ...

It seems likely that a subpoena would amount to a "judicial document" or a "process" for the execution or enforcement of an order. 138 "Other judicial acts" of this kind are excluded from the Hague Evidence Convention because they fall within the purview of another convention, the Hague Service Convention. 139 The Hague Service Convention merely facilitates service abroad of "a judicial or extrajudicial document"; 140 it does not confer any powers on

133 28 U.S.C. § 1783.

134 Blackmer v. U.S., 284 U.S. 421, 52 S.Ct. 252 (1932); U.S. v. Thompson, 319 F. 2d 665 (2d Cir. 1963).

135 Gillars v. U.S., 182 F.2d 962, 978 (D.C. Cir. 1950); Air Turbine Technology, Inc. v. Atlas Copco, A.B., 217 F.R.D. 545, 546 (S.D. Fla. 2003), aff'd 410 F.3d 701 (Fed. Cir. 2005).

136 Hague Evidence Convention, supra note 5, art. 10.

137 Id., art. 1. There is very little authority on the interpretation of "other judicial act." The Special Commission Report in 1989 described a request by Canada for the experience of other jurisdictions in interpreting the expression "other judicial act" in art. 1, and gave the brief reply: '"other judicial act' referred to any act which had legal effect. An example might be the need to obtain an official consent to a marriage from a party residing abroad." Hague Conference on Private International Law: Special Commission Report on the Operation of the Hague Service Convention and the Hague Evidence Convention, 28 I.L.M. 1556, 1566-67 (1989).

138 There was unanimous agreement at the Hague that the broad and all-inclusive term "other judicial act" should be restricted to exclude service of documents and enforcement of judgments, which were the subject of separate draft Conventions, and also provisional and protective measures such as injunctions, restraining orders, forced sales and receiverships, since they involve the discretion of the court having jurisdiction over the person. See Philip W. Amram, Explanatory Report, in Hague Conference on Private International Law: Practical Handbook on the Operation of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters 20, 21-22 (!985). Subpoenas would seem to be related to the latter group.

139 Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 16, 1965, 20 U.S.T. 361, T.I.A.S. 6638 (hereafter Hague Service Convention). The Hague Service Convention is available at http://hcch.e-vision.nl/index en.php?act=conventions.text&cid=17 (last visited July 7, 2006).

140 Hague Service Convention, supra note 139, art. 1.

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Contracting States that they would not already have by their own law. If a court has power to issue a "judicial document" under its own domestic law, the Hague Service Convention enables that document to be served abroad in other Convention countries. 141 However, if the court does not have power to issue a "judicial document," nothing in the Hague [*234] Service Convention confers that power. Because U.S. courts do not have power under U.S. law to issue subpoenas to foreign nationals in foreign countries, 142 there can be no document to be served abroad under the Hague Service Convention.

Because the Hague Evidence Convention does not apply to "the service of judicial documents," it cannot be used as the vehicle for requesting a foreign court to subpoena an unwilling witness unless that court is also asked to take the witness's evidence. The requesting court in one Convention country cannot send a Letter of Request to the competent authority in another Convention country, asking it merely to subpoena an unwilling witness to attend for examination via video or audio link.

The Hague Evidence Convention should be amended to enable this result to be achieved. The required change is purely textual, because it is clear from art. 1o ' that the parties to the Convention have no philosophical or conceptual objection to the use of compulsion by the executing country to assist the process of the requesting court. All that is needed is to make it clear in art. 1 that ~ subpoena compelling the attendance of an unwilling witness is a "judicial act" for which a Letter of Request may be sent.

Until these amendments are made, all that can be done is for countries - even Convention countries - to send letters rogatory outside the Convention framework, seeking assistance to compel the attendance of the unwilling witness, and to hope that the receiving country is willing and able to implement a request to subpoena the attendance of a witness to give video-or audio-linked testimony to a court in another country. Once again, Canada seems to have made appropriate provision to cover this situation (perhaps because it is not party to the Hague Evidence Convention). Section 700.1(1) of the Canadian Criminal Code provides:

If a person is to give evidence under ... subsection 46(2) of the Canada Evidence Act [which provides for evidence to be given in Canada by video-link in the "virtual presence" of a court outside Canada] ... at a place within the jurisdiction of a court ... where the technology is available, a subpoena shall be issued out of the court to order the person to give that evidence at such a place.

The use of letters rogatory is unavoidable in the case of unwilling witnesses, because few countries, if any, would be prepared to allow the courts of another country to exercise direct powers of compulsion within their territory. Nevertheless, requesting a foreign country to subpoena a witness to give video-or audio-linked evidence is still [*235] preferable to

141 See generally Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 108 S.Ct. 2104 (1988).

142 See supra note 135 and accompanying text.

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197 55 Am. J. Comp. L. 205, *235 requesting that country's judicial authorities to examine the witness themselves. Although the letter rogatory procedure is equally slow and cumbersome in both cases, the end result is markedly different. Video-or audio-linked testimony or deposition allows the witness to be examined in sight of the court, with the opportunity to make some assessment of his or her demeanor and to change the flow of questions in the light of his or her responses. 143 In contrast, a letter rogatory requesting the judicial authorities in the foreign country to take the witness's evidence on behalf of the requesting court produces merely a written account of the witness's responses to a fixed list of questions stipulated in advance. 144

V. Impact on Jurisdictional and Venue Questions Increasingly, private international law issues arise in the context of a challenge to jurisdiction or venue, rather than during a trial of the merits of the case. 145 It might seem at first sight that new techniques and procedures for taking evidence could only be relevant at the trial stage of proceedings, but that is not so. Ease of access to the evidence of witnesses is one of the factors taken into account by most courts when they are considering an application for stay or dismissal of proceedings on forum non conveniens grounds. 146 If key witnesses are in another country, the court may be more inclined to stay or dismiss the action if it takes the view that hearing their evidence will be costly or inconvenient. 147 That attitude may have been appropriate when travel was costly and the cumbersome procedures of the Hague [*236] Evidence Convention provided the only alternative, but it is rapidly becoming anachronistic. 148 The easier it becomes to take evidence directly by video or audio link to witnesses in foreign countries, or by remotely-transmitted deposition, the less impact the factor of availability of witnesses should have on the question whether a court should exercise jurisdiction.

143 Nancy Gertner, Videoconferencing: Learning Through Screens, 12 Wm. & Mary Bill Rts. J. 769,775 (2004) ("[Video-conferencing] enables an off-site witness to testify 'live' during a trial, to be examined in real time by the lawyers, with the trial judge presiding, in front of the jury.").

144 In its present form, the Hague Evidence Convention suggests (but does not require) that the Letter of Request should specify "the questions to be put to the persons to be examined or a statement of the subject-matter about which they are to be examined." Hague Evidence Convention, supra note 5, art. 3(f). For an example of a litigant asking for depositions to be taken even after a foreign court had taken evidence under the Hague Convention, see Minebea Co. Ltd v. Papst, 370 F.Supp.2d 302 (D.C.D.C. 2005).

145 See, e.g., Briggs, supra note 131, at v: "When the world loses its fascination with jurisdictional issues- something it shows no sign of doing any day soon- it will be time to write a different book; but the broad issue of jurisdiction is where today's litigators focus their attention."

146 U.S.: Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843 (1947) (listing factors, including "the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses"); U.K.: Spiliada Maritime Corp. v. Cansulex Ltd [1987] A.C. 460, 478 (Lord Goff) ("Connecting factors ... will include ... factors affecting convenience or expense (such as availability of witnesses) ... ");Australia: Voth v. Manildra Flour Mills Pty Ltd (1990) 171 C.L.R. 538, 565 (adopting "connecting factors" stated by Lord Goff in Spiliada, despite rejecting Spiliada test for burden of persuasion).

147 See, e.g., Alfadda v. Fenn, 159 F. 3d 41, 47 (2d Cir. 1998) (comparing cost of French witnesses appearing in French or Saudi Arabian court with cost of bringing them to U.S.); Ravelo Monegro v. Rosa, 211 F. 3d 509, 514 (9th Cir. 2000) (comparing cost of taking U.S. witnesses to Dominican Republic with cost of bringing Dominican witnesses to U.S.).

148 See Martin Davies, Time to Restate the Federal Forum Non Conveniens Analysis, 77 Tul. L. Rev. 309 (2003).

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198 55 Am. J. Comp. L. 205, *236

In the past few years, there have been signs that judicial attitudes are changing. It is no longer unusual to see a court taking into account the possibility of taking evidence by video or audio link when considering an application for forum non conveniens dismissal 149 or venue transfer. 150 Although the possibility of hearing evidence remotely does not always persuade the court to keep the case, by any means, the very fact that the factor is now routinely taken into account shows how the new technology affects jurisdictional and venue inquiries. 151

VI. Conclusion

It is trite but true to observe that technological change often outpaces the ability of the law, to keep up with it. Although some countries have made provision in their domestic law for evidence to be [*237] taken using video-or audio-linking technology, the very fact that the technology provides a link between countries demands a cooperative solution for international cases. Without cooperation on such matters as perjury, contempt and privileges, the probative force of evidence taken remotely from a witness in a foreign country may be less than that of evidence given by witnesses who are physically present in court. We have seen that some countries have implemented the kind of reforms that are called for by this need for cooperation, Canada and Australia being notable examples. Even so, the ideal solution is not unilateral national action, however well crafted, but an internationally uniform treatment. If the Hague Evidence Convention is not amended by Protocol to produce that internationally uniform result, it will slowly but surely become a dead letter, at least so far as the evidence of witnesses is concerned. There will be an international renaissance of the Aerospatiale attitude, and the Convention procedures will simply be ignored in favor of the cheaper, speedier and far more effective alternative provided by the new technology. Copyright (c) 2007 The American Society of Comparative Law, Inc. The American Journal of Comparative Law

149 See, e.g., DiRienzo v. Philip Services Co., 294 F.3d 21, 31 (2d Cir. 2002); In re Corel Corp., Inc. Securities Litigation, 147 F. Supp.2d 363, 366 (E.D. Pa. 2001); Colantonio v. Hilton Intern. Co., No. Civ.A 03-1833, 2004 WL 1810291 at 6 (E.D. Pa. 2004); In re Bridgestone/Firestone, Inc., 305 F.Supp.2d 927, 935 (S.D. Ind. 2004), vacated and remanded on other grounds 420 F.3d 702 (7th Cir. 2005); Ward v. Kerzner Intern. Hotels Ltd, No. 03-23087-CIV-JORDAN, 2005 WL 2456191 at 4 (S .D. Fla. 2005); Davis Intern., L.L.C. v. New Start Group Corp., No. Ci v.A. 04-1482 GMS, 2006 WL 839364 at I 0 (D. Del. 2006); In re Factor VIII or IX Concentrate Blood Products Liability Litigation, 408 F.Supp.2d 569, 584-86 (N.D. Ill. 2006).

150 See, e.g., Carron v. Holland America Line-Westours, Inc., 51 F.Supp.2d 322, 327 (E.D.N.Y. 1999); Longo v. Wal-Mart Stores, Inc., 79 F.Silpp.2d 169, 171-72 (E.D.N.Y. 1999); Rick ex rei. Estate of Rick v. Stevens, 145 F.Supp.2d I 026, I 038 (N.D. Iowa, 2001 ); Zidon v. Pickrell, 344 F.Supp.2d 624, 635 (D.N.D. 2004); Erb v. Roadway Exp., Inc., No. 4:05-CV-0011, 2005 WL 1215955 (M.D. Pa. 2005); Intercoast Capital Co. v. Wailuku River Hydroelectric Ltd. Partnership, No. 4:04-CV-40304, 2005 WL 290011 at 11 (S.D. Iowa 2005); Erickson v. Hertz Corp., No. Civ. 05-1690, 2006 WL 1004385 at 2 (D. Minn. 2006); Max Rack, Inc. v. Hoist Fitness Systems, Inc., No. 2:05-CV-784, 2006 WL 640497 (S.D. Oh. 2006).

15 1 See, e.g., Rubin v. Automotive Investments, L.L.C., No. Civ.A. 04-1579, 2005 WL 1478404 at 2 (E.D. La. 2005); Strategic Value Master Fund, Ltd. v. Cargill Financial Services, Corp., 421 F.Supp.2d 741, 769 (S .D.N.Y. 2006); Int'l Adm 'rs , Inc. v. Pettigrew, 430 F.Supp.2d 890, 900 (S .D. Iowa, 2006) (considering and rejecting significance of factor). The possibility of using linking technology to present the evidence of witnesses in the United States to foreign courts has also occasionally been given as a reason in favor of forum non conveniens dismissal of proceedings in a U.S. court. See, e. g Colantonio v. Hilton Intern. Co ., No. Civ.A 03-1833,2004 WL 1810291 at 6 (E.D. Pa. 2004); Davis Intern., L.L.C. v. New Start Group Corp., No. Civ.A. 04-1482 GMS, 2006 WL 839364 at 10 (D. Del. 2006).

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200 BOYD-GRAVES CONFERENCE Report of the Committee on Discovery of Electronically Stored Information The recent changes to the Federal Rules of Civil Procedure, most notably Fed. R. Civ. P. 26(b)(1), with respect to electronically stored information (“ESI”), led to the creation of this Committee prior to the 2016 Boyd-Graves Conference. At that conference, the Committee proffered certain changes to Rule 4:1(b)(7) related to the discovery of ESI. Those changes were not recommended for adoption, and instead the Committee was asked to re-visit the proposed rule changes in order to address concerns raised at the conference. On March 29, 2017 the Committee met to discuss the proposed rule changes and the critiques raised during the conference. As an initial matter, the Committee agreed that establishing guidelines regarding ESI discovery did not unequally favor either plaintiffs or defendants. The Committee then proposed, and ultimately adopted, the following changes to its 2016 amendment: 1. The Committee specified that a party anticipating the need for an ESI protocol must propose an ESI protocol within 21 days of being served with the request, or within 28 days if the request is served contemporaneously with the Complaint. This time period is consistent with the requirements set forth in Rules 4:8(d) and 4:9(b)(ii) of the Rules of Supreme Court of Virginia, which govern a party’s duty to timely respond to Interrogatories and Requests for Production of Documents.

2. The Committee amended the requirement for the disclosure of ESI custodians to include the disclosure of persons with knowledge of the party’s custodians and the location of any ESI.

3. The Committee clarified each party’s duty to “attempt to meet” within 15 days of service of the protocol in order to discuss any issues related to the proposed protocol. Thus, as a result of its joint deliberation, thought, and effort, the Committee proposes that Rule 4:1(b)(7) 1 of the Rules of Supreme Court of Virginia be amended as follows. Deleted text has been struck through, while proposed text has been underlined.

1 Rule 4:9(b)(iii)(B)(2) states: “If a request does not specify the form or forms for producing electronically stored information, or if a responding party objects to the requested form or forms of production, a responding party must produce the information as it is ordinarily maintained if it is reasonably usable in such form or forms, or must produce the information in another form or forms in which it is reasonably usable. A party need not produce the same electronically stored information in more than one form.”

201 PART FOUR PRETRIAL PROCEDURES, DEPOSITIONS AND PRODUCTION AT TRIAL

Rule 4:1. General Provisions Governing Discovery.

…

(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these Rules, the scope of discovery is as follows:

…

(7) Electronically Stored Information. A party need not provide discovery of electronically stored information (“ESI”) from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show has the burden of showing that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 4:1(b)(1). The court may specify conditions for the discovery, including allocation of the reasonable costs thereof.

If the party receiving a discovery request anticipates that it will require the production of ESI and that an ESI protocol is needed, then within 21 days of being served with the request, or within 28 days of service of requests served with the Complaint, the receiving party shall propose an ESI protocol which should address: (A) an initial list of custodians or the person(s) with knowledge of the party’s custodians and the location of ESI, (B) a date range, (C) production specifications, (D) search terms, and (E) the identification and return of inadvertently revealed privileged materials. If the proposed protocol is not acceptable, the parties shall in good faith attempt to meet within 15 days from service of the protocol on the party requesting the ESI. If, after 15 days from service of the protocol, the parties are unable to agree to limits on the discovery of the ESI, on motion to compel discovery or for a protective order, the court shall, in its discretion, determine appropriate limitations or conditions on the ESI request, if any, including allocation of the reasonable costs thereof.

202 Respectfully submitted by:

David P. Corrigan, Esq. (Committee chair) The Hon. David B. Carson W. Coleman Allen, Jr., Esq. Jonathan T. Blank, Esq. Stephen D. Busch, Esq. John A.C. Keith, Esq. Anne B. McCray, Esq. M. Bryan Slaughter, Esq.

203

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204 DURRETTECRUMPPLC ATTORNEYS AND CouNSELORS AT LAw

Wyatt B. Durrette, Jr. Direct Dial 804.775.6809 [email protected] August 31, 2017

VIA EMAIL

Stuart A. Raphael, Esquire Chairman, Boyd-Graves Conference

Re: Potential amendments addressing whether Code§§ 8.01-35.1 and 11-10, adequately protect all parties when one defendant, sued along with others for breach of contract, settles his individual case

Dear Stuart:

The participating members of my Subcommittee are:

The Honorable Bradley B. Cavedo William E. Glover, Esq. Gary C. Hancock, Esq. Kevin V. Logan, Esq. Malcolm P. McConnell, Esq. Donna Miller Rostant, Esq. Nathan J.D. Veldhuis, Esq.

Other than Nathan Veldhuis, the Subcommittee members were the same as last year's members. During the initial conference call for the Subcommittee, we discussed the results of our work last year just to focus everyone again on the nature of the potential issues.

Briefly, last year we focused on a problem from a real situation presenting the question of whether in a legal malpractice case, the amendments to § 8.01-35.1 protected a defendant in a multiple defendant malpractice suit from releasing joint tortfeasors if that defendant settled. In the course ofthat effort, we also considered whether§ 11-10 et seq. solved the potential problem if § 8.01-35.1 did not. We did not consider whether any other professional liability suits presented a similar problem, or whether § 11-10 et seq. had issues itself due to the term "creditor" in the statute, or any other possible issues with these sections.

Therefore, our Subcommittee recommended last year that our scope of study be expanded to consider whether any changes are needed to either portion of the code to cover the situation where multiple defendants are sued for breach of contract in any context, and one or more of the defendants wishes to settle their individual case. You then appointed us to do that.

Bank of America Center • 16th Floor • llll East Main Street • Richmond, VA 23219 Tel: 804.775.6900 • Fax: 804.775.6911205 • www.durrettecrump.com Stuart A. Raphael, Esquire Re: Potential Amendments August 31, 2017 Page 2

To address these issues, we divided into two groups. One group studied the issues associated with § 8.01-35.1, while the other group considered whether changes needed to be made to§ 11-10 et seq.

Fortunately, the Supreme Court of Virginia removed the doubt that existed with respect to § 8.01-35.1 by its opinion in Willian H Gordon Assocs. v. Heritage Fellowship, 291 Va. 122 (20 16), interpreting that section to apply to suits for tangible and intangible property damages whether in ·contract or tort. Gordon made it clear that § 8.01-35.1, as amended, would encompass both tort and contract actions. Therefore, the Subcommittee recommends no changes to the existing statute.

As for § 11-10 et seq., members of the Subcommittee and especially the panel focusing on these sections queried between 150-200 attorneys throughout the Commonwealth, via email and conversations, only to learn that not one had experienced any issues with the interpretation of that section. Therefore, since the Subcommittee knows of no issues arising from settlements with one or more of the parties jointly liable on contracts covered by these sections, no recommendation to change existing law will be made.

We appreciate the opportunity to serve the Conference in this capacity.

WBDJr/rww cc: The Honorable Bradley B. Cavedo William Glover, Esq. Gary C. Hancock, Esq. Kevin V. Logan, Esq. Malcolm P. McConnell, Esq. Donna Miller Rostant, Esq. Nathan Veldhuis, Esq.

Bank of America Center • 16th Floor • 1111 East Main Street • Richmond, VA 23219 Tel: 804.775.6900 • Fax: 804.775.6911206 • www.durrettecrump.com

Tab 9

207 208 209 210 211 212

Tab 10

213

M E M O R A N D U M

TO: Stuart A. Raphael, Chair Boyd-Graves Conference

FROM: Thomas E. Albro Lawrence B. Cann, III Lawrence D. Diehl Peter C. DePaolis Richard H. Ottinger Sona Rewari A. Benjamin Spencer J. Tracy Walker, IV

DATE: June 8, 2017

RE: Boyd-Graves Conference Committee Report on Rule 4:12

EXECUTIVE SUMMARY

Our committee was asked to study whether Rule 4:12(d) should be amended to adopt the view advocated by then-Justice Kinser’s concurrence in Brown v. Black, 260 Va. 305 (2000), that sanctions for the complete failure to respond to discovery need not be preceded by an order compelling discovery. Our committee recommends that the rule be so amended.

As set forth in more detail below, our recommendation is based on the following considerations:

• As set forth by a leading commentator referring to the substantially similar provision in the parallel federal rule on discovery sanctions, “[t]he misconduct at which subdivision (d) is directed consists of a party’s complete failure to respond … to a discovery request. Such a complete failure strikes at the very heart of the discovery system, and threatens the fundamental assumption on which the whole apparatus of discovery system was designed, that in the vast majority of instances, the discovery system will be self- executing.” Brown, 260 Va. at 315 (quoting 7-37 Moore’s Federal Practice - Civil, § 37.90).

214 Report on Rule 4:12 June 8, 2017 Page 2

• Requiring the violation of a prior order as a predicate for the award of sanctions invites mischief and undermines the integrity of the judicial system. The rule, as now interpreted, rewards rather than deters unprofessional conduct.

• While the rule provides for the award of expenses and fees caused by the failure to respond to discovery, requiring two motions and two court appearances to obtain sanctions in those rare cases when they are warranted necessarily results in delay. With crowded dockets, obtaining a sanctions award may prove impractical, and thus improper conduct may go unsanctioned.

• The trial court bench in Virginia is well qualified to exercise sound discretion in discovery matters, including the award of sanctions when warranted. Allowing trial courts to directly impose the sanctions enumerated in Rule 4:12(b)(2)(A), (B), and (C) without a prior order in those rare circumstances where sanctions are warranted empowers the trial court bench to more effectively and efficiently manage cases. Anecdotal evidence suggests that the direct imposition of sanctions is a needed tool.

BACKGROUND

A. Rule 4:12

Rule 4:12 governs the remedies available when a party fails to properly respond to discovery.

Rule 4:12(b) governs incomplete discovery responses. It provides, in pertinent part:

(b) Failure to Comply With Order. (2) Sanctions by Court in Which Action Is Pending. If a party or an officer, director, or managing agent of a party or a person designated under Rule 4:5(b) (6) or 4:6(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this Rule or Rule 4:10, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence; (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing

215 Report on Rule 4:12 June 8, 2017 Page 3

the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; . . . In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. Rule 4:12(d), in turn, governs the complete failure to respond to discovery. It provides: (d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party or an officer, director, or managing agent of a party or a person designated under Rule 4:5(b) (6) or 4:6(a) to testify on behalf of a party fails (1) to appear before the officer who is to take his deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 4:8, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 4:9, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this Rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 4:1(c).

B. Brown v. Black

Prior to the Supreme Court’s decision in Brown, it was widely understood that, faced with a complete failure to respond to discovery, a trial court had discretion to impose the sanctions enumerated in Rule 4:12(b)(A), (B), and (C) even in the absence of a preceding order compelling discovery. See, e.g., Cooper v. Cenric Servs., Inc., 36 Va. Cir. 518 (Richmond 1995). Brown held otherwise.

Brown involved two related personal injury actions. When the plaintiffs failed to respond to interrogatories, the defendants moved to compel responses, or in the alternative, to dismiss the plaintiffs’ motions for judgment with prejudice. Id. at 307. Notably, the plaintiffs failed to respond to the defendants’ motions or even appear at the hearing on the motions. The trial court granted the defendants’ motions and dismissed the plaintiffs’ motions for judgment. Id. at 308.

216 Report on Rule 4:12 June 8, 2017 Page 4

The plaintiffs then moved for reconsideration, arguing that Rule 4:12 authorizes a trial court to dismiss a motion for judgment only if a plaintiff has failed to obey a discovery order. Id. The trial court declined to change its ruling. Id.

On appeal, the Supreme Court reversed. Noting that Rule 4:12(d) permits a circuit court to take actions authorized under Rule 4:12(b)(2)(A), (B), and (C), the four-Justice majority held that the actions in (A), (B), and (C) are authorized only “when a party has failed ‘to obey an order to provide or permit discovery.’” Id. at 310. “Thus, we conclude that the limitation on the circuit court’s power to impose sanctions specified in paragraphs (A), (B), and (C) of Rule 4:12(b)(2), that a party has failed to obey an order to provide or permit discovery, necessarily restricts the circuit court’s exercise of those powers under Rule 4:12(d). Id. at 311.

In her concurring opinion, Justice Kinser, joined by Justice Lacy and Justice Lemons, set forth her view that by requiring violation of a prior order as a predicate for imposing the sanctions authorized by Rule 4:12(b)(2)(A), (B), and (C), the majority had misinterpreted Rule 4:12(d). As explained by Justice Kinser, Rule 4:12(a) and (b) govern incomplete discovery responses, whereas Rule 4:12(d) governs the more egregious circumstance where there has been complete failure to respond to discovery. Id. at 313. “Once the predicate requiring violation of an order regarding discovery is imported to subsection (d), that subsection is subsumed entirely into subsection (b)(2) and, consequently, rendered meaningless.” Id. at 314. Thus, the three justice-concurrence construed Rule 4:12(d) to allow the imposition of sanctions even absent a prior order compelling discovery.

C. Kapur v. Kapur

In Kapur v. Kapur, Record Nos. 0363-08-4 and 0950-08-4, 2009 Va. App. LEXIS 234 (May 19, 2009), in an opinion authored by then-Judge McClanahan, the Court of Appeals revisited the Supreme Court’s holding in Brown. Kapur was an appeal from a divorce case. The husband appealed from, among other things, a sanctions order that precluded him from testifying at a hearing on spousal support, child support, and equitable distribution after twice failing to appear for his scheduled deposition. Id. at *8. No prior discovery order preceded the sanction.

On appeal, the wife, relying on Justice Kinser’s concurrence in Brown, urged the Court of Appeals “to apply the plain language of Rule 4:12(d) which does not contain the same provision as Rule 4:12(b)(2) requiring the prior issuance of an order compelling discovery before sanctions may be imposed.” Id. at *11, n. 8. The Court of Appeals declined the wife’s invitation, but expressed its reluctance in so doing. It noted that the wife’s argument “was amply supported by the plain language of the rule and by federal cases interpreting Federal Rule of Civil Procedure 37, which the Court noted in Brown is ‘substantially similar to Rule 4:12.’” Id. (citing cases supporting the position that a trial court has discretion to award sanctions even absent entry of a prior discovery order).

COMMITTEE ANALYSIS

The committee considered two interrelated issues: (1) which of the two constructions given Rule 4:12 is more in keeping with expectations of the administration of civil justice in

217 Report on Rule 4:12 June 8, 2017 Page 5

Virginia, and (2) whether there is any need to amend Rule 4:12 regardless of which construction might be preferable.

Notably, the committee members lacked any direct personal experience with circumstances where Rule 4:12(d) might come into play, and it is hoped that such situations are rare. But the need to amend Rule 4:12 can be discerned from hypothetical constructs and anecdotal evidence.

Of considerable concern to the committee is that the construction given Rule 4:12(d) seemingly invites a party to engage in discovery abuse because it allows one “free pass” before any sanctions can be awarded. That is not an idle concern. It was echoed by circuit court judges interviewed by committee members and it has been noted in decisions from other jurisdictions. See, e.g., AL Barnett & Son, Inc. v. Marine Wholesale, Inc., 611 F.2d 32, 35 (3rd Cir. 1979) (“Litigants may oppose discovery requests by seeking a protective order from the court; they cannot be permitted to frustrate discovery by refusing to comply with a proper request. For courts to permit litigants to disregard the responsibilities that attend the conduct of litigation would be tantamount to encouraging dilatory tactics.”) (citations and quotations omitted).

Kapur amply illustrates this concern. The wife in Kapur made two efforts to depose her husband. On two separate occasions, he failed to appear. The parties proceeded to a hearing on support and equitable distribution and, as a sanction for the husband’s conduct, the trial judge barred him from testifying on the matters at issue. But, because there was no prior order compelling the husband’s deposition, the husband’s conduct was effectively excused.

Circuit court judges interviewed by committee members expressed concern that there are a small number of bad actors who perceive that they can “play” the system and delay proceedings by failing to respond to discovery until entry of an order. Often these individuals provide discovery responses on the eve of scheduled hearings on their opponents’ discovery motions. While costs and fees can be awarded to address this type of recalcitrant behavior, such awards cannot remediate the delay occasioned by the failure to respond to discovery and often do not fully compensate a party for the full costs occasioned by the conduct. Allowing trial courts a wider range of tools to address this type of behavior would be a stronger deterrent to repeat offenders.

Significantly, the committee could not identify any downside in amending the Rule to allow for the direct award of sanctions. There is little expectation that a change will result in a rush of motions seeking sanctions and, in any event, courts wield their authority sparingly and can award sanctions only where just.

The trial court bench in Virginia is well qualified to exercise sound discretion in discovery matters. Allowing trial courts to directly impose the sanctions enumerated in Rule 4:12(b)(2)(A), (B), and (C) without a prior order in those rare circumstances where sanctions are warranted empowers the trial court bench to more effectively and efficiently manage cases.

In considering this matter, the committee observed that Rule 4:12, as written, makes explicit reference to interrogatories, depositions, and requests for inspection, but not document

218 Report on Rule 4:12 June 8, 2017 Page 6 requests. A similar omission exists in the parallel federal rule. It is unclear why document requests would be omitted from the rule. To the extent Rule 4:12 is amended, the committee recommends that specific reference be made to document requests.

PROPOSED AMENDMENT TO RULE 4:12(d)

For all of these reasons, the committee recommends that the Conference adopt and recommend the following proposed amendment to Rule 4:12:

(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Production or Inspection.

If a party or an officer, director, or managing agent of a party or a person designated under Rule 4:5(b)(6) or 4:6(a) to testify on behalf a party fails (1) to appear before the officer who is to take his deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 4:8, after proper service of the interrogatories, (3) to serve a written response to a request for production or inspection submitted under Rule 4:9, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may order any of the sanctions listed in take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this Rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 4:1(c).

Some committee members suggested that the amendment state more explicitly that sanctions may be awarded even in the absence of a prior order. Thus, the committee also prepared the following alternative language for consideration by the Conference:

(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Production or Inspection. If a party or an officer, director, or managing agent of a party or a person designated under Rule 4:5(b) (6) or 4:6(a) to testify on behalf of a party fails (1) to appear before the officer who is to take his deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 4:8, after proper service of the interrogatories, or (3) to serve a written response to a request for production or inspection submitted under Rule 4:9, after proper service of

219 Report on Rule 4:12 June 8, 2017 Page 7

the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may order, regardless of whether any prior order to compel has been issued or violated by the delinquent party’s conduct, any of the sanctions listed in take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this Rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 4:1(c).

220

Tab 11

221 WOODS ROGERS ATTORNEYS AT LAW

FRANK K. FRIEDMAN (540) 983-7692 [email protected]

August 28, 2017

Stuart A. Raphael, Esq. Solicitor General Office of the Attorney General 202 North Ninth Street Richmond, VA 23219

Re: Review of the law regarding the specificity with which an objection must be stated in a final order in order to preserve it for appellate review

Dear Mr. Raphael:

Thank you for the opportunity to Chair the Committee assigned to explore the topic of specificity and objections to final orders. The Committee was comprised of the following individuals: Hon. Lisa B. Kemler, Brian N. Casey, William Harty, Joseph P. Rapisarda, Jr. and Arthur E. Schmalz. Our group met via conference calls on May 11, 2017, and June 14, 2017. The following is a compilation of our research, comments, and recommendations.

I. General Overview of Relevant Rules and Statutes.

We were asked to "study the state of the law regarding the specificity with which an objection must be stated in a final order in order to preserve it for appellate review." The relevant rules and statutes essentially require that a litigant give the trial court a meaningful opportunity to rule upon a given point. Rule 5:25 states:

Rule 5:25. Preservation of Issues for Appellate Review. No ruling of the trial court, disciplinary board, or commission before· which the case was initially heard will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling except for good cause shown or to enable this Court to attain the ends of justice. A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to preserve the issue for appellate review.

Rule SA: 18, relevant to the Court of Appeals of Virginia, states:

Rule 5A:18. Preservation of Issues for Appellate Review. No ruling ofthe trial court or the Virginia Workers' Compensation Commission will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the

{2227448-1, 900000-00133-01} P.O. Box 14125, Roanoke, Virginia 24038-4125 10 S. Jefferson Street, Suite 1400, Roanoke, Virginia 24011 p (540) 983-7600 • T' (540) 983-7711 www.woodsrogers.com Charlottesville • Danville 222• Lynchburg • Richmond • Roanoke Stuart A. Raphael, Esq. August 28, 2017 Page 2

ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice. A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to preserve the issue for appellate review.

As this committee was asked to focus on "specificity," it is notable that both rules require objections to be made with "reasonable certainty." There is also a temporal requirement: at the time of the ruling.

Of particular emphasis to appellate practitioners, the Rules ofthe Supreme Court of Virginia require an appellant (or cross-appellant) to provide an "exact reference" to the pages in the record "where the alleged error has been preserved." Rules 5: 17( c), SA: 12(c). This suggests that the assignment of error needs to look a lot like the objection lodged- or the argument made - in the record.

At the same time, Virginia Code§ 8.01-384 introduces a somewhat more forgiving policy when it comes to memorializing previously raised legal arguments:

§ 8.01-384. Formal exceptions to rulings or orders of court unnecessary; motion for new trial unnecessary in certain cases.

A. Formal exceptions to rulings or orders of the court shall be unnecessary; but for all purposes for which an exception has heretofore been necessary, it shall be sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objections to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection shall not thereafter prejudice him on motion for a new trial or on appeal. No party, after having made an objection or motion known to the court, shall be required to make such objection or motion again in order to preserve his right to appeal, challenge, or move for reconsideration of, a ruling, order, or action of the court. No party shall be deemed to have agreed to, or acquiesced in, any written order of a trial court so as to forfeit his right to contest such order on appeal except by express written agreement in his endorsement of the order. Arguments made at trial via written pleading, memorandum, recital of objections in a final order, oral argument reduced to transcript, or agreed written statements of facts shall, unless expressly withdrawn or waived, be deemed preserved therein for assertion on appeal ....

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(emphasis added.) This statute is notable for its assurance that if a position has been taken by a litigant and made known to the court (and is not actively abandoned), the position should be preserved. To the extent a statute conflicts with a Rule of Court, the statute prevails. Helms v. Manspile, 277 Va. 1, 7 (2009).

The statute further confirms that one way to preserve an objection is by "recital of objections in a final order ... " Thus, while lodging objections to a final order appears to be an effective method of preservation, the statute appears to make the practice unnecessary to the extent a clear and proper objection or motion is already preserved in the record. With that said, a common practice among practitioners - out of an "abundance of caution" - is to append pertinent objections to a final order.

Our committee was asked to review the state of the law and to set forth best practices, which will be done below. Our committee did not feel the rules or statutes in this area need to be amended, as our study failed to turn up any significant recurring problems with the existing process. However, we did identify several situations in which the dictates ofVa. Code§ 8.01- 384 do not provide clear guidance as to how to preserve an objection. These situations also will be discussed below.

II. General Overview of the Components of a Preserved Objection.

Lengthy outlines, treatises and articles discuss the intricacies of waiver and preservation issues. We will not attempt to provide an exhaustive list of preservation rules here, but a brief summary. The nutshell requirements for preserving an objection include:

• memorialize the objection on the record (by final order or otherwise), 1 • make the point with sufficient specificity that the court is afforded a meaningful opportunity to rule,2 • obtain a ruling, 3

1 The appellate court generally cannot rule upon an objection unless there is proof in the record that it was raised. This requires counsel to ensure that relevant transcripts or statements of proceedings are filed with the court. See Rule 5: 11. The appellant bears the burden of providing the appellate court with a record upon which it can review the judgment appealed from, including the evidence adduced at trial, the arguments made below, and the bases for the lower court's rulings. See Prince Seating Corp. v. Rabideau, 275 Va. 468,470-71 (2008). Objections stated outside the presence of the court reporter, must be properly restated on the record. See Galumbeck v. Lopez, 283 Va. 250 (2012) (improper proffer.) 2 "A party must state the grounds for an objection 'so that the trial judge may understand the precise question or questions he is called upon to decide."' Scialdone v. Commonweaelth, 279 Va. 422,437 (2010) (quoting Jackson v. Chesapeake & Ohio Ry. Co., 179 Va. 642, 651 (1942)); see also Wright v. Norfolk & W. Ry. Co., 245 Va. 160, 167 (1993); Marshall v. Goughnour, 221 Va. 265, 269 (1980). 3 If a court takes a ruling under advisement and fails to rule on it, counsel must remind the court of its position and seek a ruling. See Nusbaum v. Berlin, 273 Va. 385, 404 (2007) (stating objection, but specifically noting that counsel was not asking the court to reconsider its ruling, did not preserve points raised in objection); Lenz v. Comm., 261 Va. 451,463 (2001) (failure to obtain ruling on pretrial motion waived issue on appeal); Hoke v. Comm., 237 Va. 303, 306 (1989) (failure to renew change of venue motion that had not been ruled on constituted waiver).

{2227448-1, 900000-001 33-01} 224 Stuart A. Raphael, Esq. August 28, 2017 Page 4

• object at an appropriate time (i.e., when the court can act upon the objection),4 and • object for the "right" reason and request the proper relief sought. 5

A mis-step at any stage of these requirements can result in a waiver of an appeal point.

As both Va. Code§ 8.01-384 and case law confirm, even if proper objections are made, they can be waived or abandoned. 6 However, case law suggests that- as far as signing final orders is concerned- a very clear and express statement is required to abandon a previously preserved objection.7

Virginia Code§ 8.01-384 does alleviate the urgency of"reiterating" a previously-made objection on a final order. There were cases in the past where a simple "seen and objected to" in response to a final order constituted a waiver- because the record did not otherwise reflect or contain the basis of the objection. 8 These cases caused an uproar and briefly triggered a movement where litigants appended and listed every conceivable objection to all final orders. Again, under Va. Code§ 8.01-384 such duplication is generally unwarranted.

While it is usually safe to rely on prior objections,9 there are cases where a litigant can raise and preserve an objection in early proceedings only to lose the objection based on "changed circumstances."1° For this reason, it remains a proper- and wise- practice to attach objections to final orders. Again, Va. Code§ 8.01-384 states:

4 Scialdone, 279 Va. at 437; Johnson v. Raviotta, 264 Va. 27, 32-33 (2002) ("An objection must be made ... at a point in the proceeding when the trial court is in a position, not only to consider the asserted error, but also to rectify the effect of the asserted error"); Morgen Indus., Inc. v. Vaughan, 252 Va. 60, 67 (1996). 5 King v. Sowers, 252 Va. 71, 76-77 (1996) (objecting to a jury instruction on one ground at trial does not permit a different objection to the same instruction on appeal.) As a corollary to the requirement of objecting for the "right reason," the appellant also must seek appropriate relief in the trial court. See Rose v. Jaques, 268 Va. 137, 158 (2004) (when a litigant objected to the improper argument of counsel, but failed to request the relief of a limiting instruction or mistrial, the objection was waived.) 6 Graham v. Cook, 278 Va. 233, 248 (2009); Helms v. Manspile, 277 Va. 1, 6 (2009). 7 See Cashion v. Smith, 286 Va. 327,335-36 (2013); Johnson v. Hart, 279 Va. 617, 623-24 (2010). 8 See Herring v. Herring, 33 Va. App. 281, 286 (2000); Konefal v. Konefal, 18 Va. App. 612, 615 (1994); Lee v. Lee, 12 Va. App. 512, 516 (1991.) 9 See e.g., Chawla v. Burger Busters, Inc., 255 Va. 616, 621-23 (1998); Stuarts Draft Shopping Center, L.P. v. S-D Assocs., 251 Va. 483, 489 (1996). 10 Even if a litigant initially preserved an objection, a court's subsequent ruling may alter the context of the objection. In Riverside Hospital v. Johnson, 272 Va. 518 (2006) defendant filed a motion in limine objecting to certain statistical evidence. The trial court admitted the evidence specifically because it related to plaintiff's punitive damages claim. However, at the close of evidence, plaintiff non-suited the claim for punitive damages. Because defendant did not renew the motion to exclude the evidence or ask for a limiting instruction, the objection was deemed to be waived. I d. at 526; see also United Leasing Corp. v. Lehner Family Bus. Trust, 279 Va. 510, 518- 19 (20 10) (party cannot stand on prior motion to strike after introducing new evidence.)

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No party, after having made an objection or motion known to the court, shall be required to make such objection or motion again in order to preserve his right to appeal, challenge, or move for reconsideration of, a ruling, order, or action of the court.

Thus, it is an acceptable practice not to append previously made objections to a final order under the statute. It remains a "best practice" to object to a final order- and the majority of appellate practitioners encourage that an objection reflect that the objection is made "for the reasons stated in [the briefs, motions, and arguments contained in the] record, including but not limited to ..." the central issues targeted for appeal.

III. Specificity in Objections.

We were asked to review the "specificity" required of an objection appended to a final order. The rule regarding the specificity of any objection is that it must be sufficient to put the trial court on notice of the argument and provide the court an opportunity to rule intelligently on the issue. If an objection is not stated with reasonable certainty, the issue will not be considered on appeal. 11 The issue of specificity tends to be decided on a case-by-case basis. However, claiming that a ruling is "contrary to the law and the evidence" is inadequate to preserve an issue for appeal and has become the classic example of an insufficiently specific objection. 12 Similarly, a broad objection may not cover a much finer point. For example, an objection to the foundation of an entire medical chart does not encompass an objection to specific opinions in individual documents. 13

The "specificity" requirements of assignments of error are similarly nebulous- and potentially dangerous. Again, the key is putting the court on notice ofthe mistake by "lay[ing a] finger on the error."14 However, if an overly specific error is assigned, this can exclude or waive broader appeal points. 15 Because the appellant, in its petition and brief, must provide an "exact reference" to the pages in the record "where the alleged error has been preserved," Rules 5: 17( c) and SA: 12( c), the same considerations apply to preserving the error in the trial court.

11 See Arnold v. Wallace, 283 Va. 709, 714 (2012) (an objection to the foundation of an entire chart does not encompass an objection to specific opinions in individual documents.); Rose v. Jaques, 268 Va. 137, 152-53 (2004) (although defendant objected to questioning of witness by opposing counsel, defendant did not object to questioning of witness by trial court and thus waived objection.) 12 Rules 5:25; 5A: 18; see also Va. Elec. & Power Co. v. Hylton, 292 Va. 92, 104 & n. 1 (20 16) (a party need only give the trial court "sufficient 'notice of the substance of the objection."' (quoting Landrum v. Chippenham & Johnston Willis Hasps., Inc., 282 Va. 346, 353 n. 7 (2011)). 13 Arnold, 283 Va. at 714. 14 Loughran v. Kincheloe!, 160 Va. 292, 297 (1933). 15 John Crane, Inc. v. Bristow, Record No. 120947 (Va. Oct. 25, 2013) (unpublished order) (specific assignment of error relating only to one theory does not apply to new theory after the law changes while the appeal is pending.)

226 {2227448-1, 900000-00133-01} Stuart A. Raphael, Esq. August 28, 2017 Page 6

Despite the vagueness of the specificity requirement, we are not aware of a significant problem in application of the rule. Our committee did not identify any specific rule or statute that requires amendment in this field.

IV. Identifying Other Final Order Problems.

Our committee did identify a potential problem dealing with objections to final orders and the "opportunity to rule." This arises when a party's objection to a court's action appears for the first time in the final order. The question is: by simply objecting to an action by the Court in the final order, has the trial court been given an opportunity to rule on the objection? In most cases, the problem will not arise because plaintiff will argue A, the defense will argue Z, and when the court rules Z, the plaintiff's opposing position -A- is already memorialized in the record. A more challenging issue occurs when the court raises a "new" issue or finding in its final order/letter opinion which the parties have not previously discussed. Put another way, what happens when the plaintiff argues A&B, the defense argues C&D, and the trial court rules A, B and Q- or maybe just Q? If the defense merely objects to Q in the final order for three good reasons, but does nothing more, has the Court been given an opportunity to rule on the objection that is sufficient to preserve the objection?

This problem is occurring from time to time- and has resulted in many appellate attorneys urging litigants who lost below on a "Q-type ruling" to file a motion for reconsideration to be sure to raise points and give the court an opportunity to rule on the "new issue." Even this course is fraught with some danger. E.g., Brandon v., Cox, 284 Va. 251 (20 12). In Cox, the plaintiff filed a motion for reconsideration raising new arguments, but never requested or obtained a ruling from the trial court. Because the Court failed to rule on the motion within 21 days as prescribed by Rule 1:1, the new points were deemed waived on appeal. 16

The committee did want to bring this final order issue to the Conference's attention. The problem of a "new issue" appearing in the final order or opinion arises rarely- but it can be a thorny one when it does come up. There is a line of cases that says that a "late" objection is preserved if it is made at the first available opportunity - and that could be used to suppmi an objection made for the "first time" in the final order. 17 However, arguably, if a motion for reconsideration is not filed, the court has not really had a chance to change its ruling. The best

lG See also, Newport News Shipbuilding Empls. Credit Union v. Busch, Record No. 150678 (Va. June 16, 2016) (unpublished order); but see Majorana v. Crown Central Petroleum Cmp., 260 Va. 521, 525 & fn 1 (2000) (issues preserved in motion for reconsideration that is considered and denied.) We are aware that Rule 4: 15(d) makes it potentially difficult to obtain a ruling on a motion for reconsideration, insofar as it prohibits a litigant from noticing such a motion for hearing. Because that issue is the subject of another Boyd-Graves Committee study, our report does not address it to any significant degree. l? Va. Code§ 8.01-384 and case law allow for objections at the first available opportunity. Comm. v. Amos, 287 Va. 301 (2014); Maxwell v. Comm., 287 Va. 258 (2014). By analogy, the Rules ofthe Supreme Court allow a litigant who has lost in the Court of Appeals to raise assignments of error to "actions taken by" the Court of Appeals (i.e., new rulings not previously raised.) Rule 5: 17( c)(l)(ii).

{2227448-1, 900000-00133-01} 227 Stuart A. Raphael, Esq. August 28, 2017 Page 7 practice would be to file for reconsideration to give the court an opportunity to rule on specific objections. 18 At the same time, Va. Code§ 8.01-384 states that lodging an objection in a final order should be sufficient to preserve it. 19

Our committee, at the present time, does not see a widespread problem in this area, but merely a potential dilemma. We do not have any statutory or rule changes to recommend at the present time.

I would like to thank the members of the Committee for their dedicated, insightful and thoughtful consideration of this complicated issue.

Very truly yours,

WOODS ROGERS PLC ~~~~ Frank K. Friedman FKF:lgh

18 See e.g., Bratton v. Selective Insur. Co., 290 Va. 314, 326-27 (2015); Weidman v. Babcock, 241 Va. 40, 44 (1991). If the objectionable ruling is pati of a final order and the trial court may not have sufficient time to rule on the motion to reconsider within the 21-day period under Rule 1: 1, then, to avoid a potential waiver under Cox, the moving party may also consider filing a motion to suspend or modify the final order until the motion for reconsideration has been decided. There appears to be no limitation on setting such a hearing under Rule 4: 15(d). 19 In Nusbaum, supra, however, due process objections appear to have been appended to the final order, but no ruling was actually requested relating to the objections. 273 Va. at 404. The Supreme Court found the objections deficient. 273 at 404-06.

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Tab 12

229 MEMORANDUM

To: Boyd-Graves Conference

From: Jay O’Keeffe, Committee Chair Cindra M. Dowd Reeves Mahoney J. Lee E. Osborne Bruce E. Titus Barbara S. Williams

Re: Report of Committee on Lee v. Spoden

Date: September 7, 2017

Executive Summary Our committee was asked to study whether any rule or Code change is warranted to address the situation in Lee v. Spoden, 290 Va. 235 (2015). In Lee, the Supreme Court held that a trial court’s determination on a show-cause motion that the ex-husband was not in contempt of a property-settlement agreement precluded the ex-wife’s later breach-of-contract and breach-of-fiduciary-duty claims. Our committee considered the issue and does not believe that a rule or Code change is warranted.

Background

Given our charge, it’s helpful to begin by reviewing (1) Lee v. Spoden, 290 Va. 235, 240 (2015), (2) the nature of the contempt remedy in Virginia, (3) a few idiosyncrasies of domestic-relations practice.

1

230 1. In Lee v. Spoden, 290 Va. 235 (2015), the Supreme Court held that a finding of no contempt can have res judicata effect. Our analysis starts with the Court’s decision in Lee v. Spoden, 290 Va. 235 (2015). In 1994, Paul Lee started Strategic Health Care Co., Inc. (the “Company”). Id. at 240. The next year, he married Lisa Spoden and granted her a 50% ownership interest in the Company. Ibid. Nine years later, the Company purchased real estate in Florida. Ibid. In 2009, Spoden filed for divorce. Ibid. Lee and Spoden signed a term sheet that functioned as a property- settlement agreement. Ibid. The term sheet provided that:

o Spoden would turn her 50% interest in the Company over to Lee;

o The Company would hire Spoden as Senior Vice President of Business Development;

o The Company would continue to employ Spoden’s assistant; and

o The Company would continue to own the Florida property, but Spoden would “direct [its] use.” Upon the sale of the property, Spoden would receive all proceeds after payment of taxes and fees. Id. at 240-41. The term sheet was incorporated, but not merged, into the final divorce decree. Id. at 241. In 2013, Spoden sued Lee and the Company, alleging breach of contract and breach of fiduciary duty. Ibid. She claimed that they had violated the term sheet by:

o Preventing Spoden from functioning as Senior Vice President of Business Development;

o Taking improper deductions from her paycheck;

2

231 o Failing to reimburse her assistant for expenses that other employees were reimbursed for; and

o Listing the Florida property for sale without Spoden’s knowledge or permission. Ibid. Spoden sought a declaratory judgment, injunctive relief, and damages. Ibid. Lee and the Company demurred to Spoden’s claims for injunctive relief and damages arising from the alleged breach of fiduciary duty, but not to her claim for damages arising from the alleged breach of contract. Ibid. At the demurrer hearing, the trial court noted, sua sponte, “that the appropriate vehicle for Spoden’s breach of fiduciary duty, declaratory judgment, specific performance, and permanent injunction claims was a rule to show cause why Lee should not be held in contempt for violating the divorce decree.” Id. at 241-42. In its order, the trial court stated that those claims “may be raised in a rule to show cause” and that Spoden “shall file the petition for a rule to show cause within 30 days.” Id. at 242. The trial court also allowed Spoden to amend her complaint to assert her breach-of-contract claim. Ibid. Spoden filed an amended complaint. Two weeks later, she filed a petition for a rule to show cause against both Lee and the Company. In her petition, Spoden alleged that Lee had intentionally violated the term sheet by, among other things:

o Preventing Spoden from functioning as Senior Vice President of Business Development;

o Taking improper deductions from her paycheck; o Failing to reimburse her assistant for expenses that other employees were reimbursed for; and

3

232 o Listing the Florida property for sale without Spoden’s knowledge or permission. Ibid. These were, of course, also the bases of the original complaint. After hearing evidence, the trial court made several fact findings and concluded that Lee had not violated the term sheet. Ibid. In a written order, it held that the Company was not bound by the term sheet because it was a signatory to neither the divorce decree nor the term sheet itself. Ibid. The trial court stated that the Company had the right to sell the Florida property. Ibid. After the final order in the contempt proceeding was entered, the Company sold that property. Ibid. Lee and the Company moved for summary judgment on Spoden’s breach-of-contract claim, asserting res judicata. Id. at 242-43. They argued that Spoden was precluded from relitigating the issues that the trial court had already decided in the contempt proceeding. Id. at 243. Since those issues formed the basis of her breach-of- contract action, Lee and the Company asked the trial court to enter summary judgment in their favor or, in the alternative, to limit Spoden to litigating only issues not already decided in the contempt proceeding. Ibid. The trial court denied their motion and the matter proceeded to trial, where Spoden argued that Lee and the Company had sold the Florida property in bad faith. Ibid. She moved to exclude evidence of the ruling from the contempt proceeding giving them express permission to sell the Florida property. The trial court excluded evidence of that ruling on the ground that it was too prejudicial, ibid,

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233 and the jury returned a verdict in Spoden’s favor, id. at 244. Lee and the Company appealed, arguing (among other things) that the trial court had erred by denying their motion for summary judgment and by excluding evidence of the contempt ruling. Id. at 245. The Supreme Court agreed in a unanimous opinion. It explained that, under Virginia law, claim preclusion is governed by Rule 1:6, which states: A party whose claim for relief arising from identified conduct, a transaction, or an occurrence, is decided on the merits by a final judgment, shall be forever barred from prosecuting any second or subsequent civil action against the same opposing party or parties on any claim or cause of action that arises from that same conduct, transaction or occurrence, whether or not the legal theory or rights asserted in the second or subsequent action were raised in the prior lawsuit, and regardless of the legal elements or the evidence upon which any claims in the prior proceeding depended, or the particular remedies sought. Id. at 246-47 (quoting Va. Sup. Ct. R. 1:6(a)). The Court explained that the contempt proceeding had been decided on the merits by a final judgment. Id. at 247-48. It ruled that Spoden and Lee were parties to both the contempt proceeding and breach-of-contract proceeding, and that the Company was in privity with Lee, its sole shareholder. Id. at 248. Both proceedings concerned the same conduct, transaction, or occurrence, as they both alleged breaches of the term sheet. Id. at 249. The Court thus held that “Spoden’s decision to pursue contempt charges against Lee for his alleged violations of the Term Sheet and her failure to appeal from the adverse ruling in the contempt proceeding preclude[d] her from

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234 pursuing any further claims against Lee based on those same violations.” Id. at 249-50 (footnote call omitted) (emphasis added). Spoden argued that the trial court had ordered her to pursue the rule to show cause. The Supreme Court disagreed, finding that it was “readily apparent that the trial court merely stayed its decision on the demurrer to allow her to seek a rule to show cause, if she so desired.” Id. at 249 n.10. The Court observed that one of Spoden’s claims had not been litigated in the contempt proceeding: Her contention that the Company had sold the Florida property in bad faith. Id. at 250. That sale occurred after the trial court’s ruling in the contempt proceeding, so it could not have been the subject of Spoden’s claims in that proceeding. Ibid. It was therefore governed by collateral estoppel. Thus, although Spoden’s claim could go forward, “any findings necessarily made by the trial court in the contempt proceeding [would] be given binding and preclusive effect on any issue for which they may be relevant.” Ibid. The Court also held that the trial court had erred by excluding evidence of the contempt ruling. Id. at 251-52. It therefore reversed the trial court’s judgment, entered partial final judgment in favor of Lee and the Company, and remanded the case for further proceedings. Id. at 254.

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235 2. Virginia’s appellate courts lack jurisdiction to hear an appeal from a trial court’s refusal to find civil contempt. To appreciate Lee’s implications, it’s necessary to consider the unique nature of the contempt remedy. Courts enjoy the inherent authority to punish contempt. Parham v. Commonwealth, 60 Va. App. 450, 455 (2011) (Kelsey, J.). That power is founded on the need to enforce judicial orders, as well as the fundamental necessity to preserve the public’s respect. Id. at 455-56. The elements of a contempt application are (1) a court order with definite terms (2) that was served on the contemnor and (3) which the contemnor violated willfully or in bad faith. E.g., 1-47 Va. Remedies § 47-2 (2016). No Virginia appellate case establishes the burden of proof that applies to civil contempt. 1-10 Va. Civil Benchbook § 10.04[d] (2016). In federal court, the complainant bears the burden of proving civil contempt by clear-and-convincing evidence. In re GMC, 61 F.3d 256, 258 (4th Cir. 1995). At common law, a litigant had no right to appeal from either (1) a trial court’s finding of contempt, or (2) its refusal to find contempt. Jenkins v. Mehra, 281 Va. 37, 43 (2011). Instead, deciding contempt petitions and imposing punishment was the sole province of each court. Ibid. This lack of appellate review was considered necessary to protect the power and dignity of each individual court. Id. at 43-44. By statute, the General Assembly has abrogated the common-law rule to allow appeals from findings of contempt. Id. at 45-47. This law has been in effect in one form or another since 1826. It has allowed appeals from

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236 judgments for civil contempt implicitly since 1908, and explicitly since 1979. Id. at 46-47. It is currently embodied in Code § 19.2-318. The General Assembly has not, however, passed a coordinate statute allowing for an appeal of a trial court’s refusal to find contempt. Three statutes could theoretically be read to grant a right to such an appeal: Virginia Code §§ 19.2-318,1 8.01-670(A)(3),2 and 17.1-405.3 Virginia’s appellate courts have analyzed each statute and determined that none of them does. Jenkins, 281 Va. at 45- 51 (neither Code § 19.2-318 nor Code § 8.01-670(A)(3) authorizes such an appeal); Newton v. Jones, 66 Va. App. 20, 22-23 (2016) (Code § 17.1-405 does not authorize such an appeal).

3. Family-law practitioners often rely on petitions for a rule to show cause. Lee’s holding is particularly important for family-law practitioners. That’s because in the family-law context, a separation or property-settlement agreement is often incorporated into the final divorce decree. If one spouse refuses to comply with the terms of the agreement, this

1 Code § 19.2-318 provides, in relevant part, that “[f]rom a judgment for any civil contempt of court an appeal may be taken to the Court of Appeals.” 2 Code § 8.01-670(A)(3) provides, in relevant part, that “any person may present a petition for an appeal to the Supreme Court if he believes himself aggrieved … [b]y a final judgment in any … civil case.” 3 Code § 17.1-405 provides, in relevant part: “Any aggrieved party may appeal to the Court of Appeals from … [a]ny final judgment, order, or decree of a circuit court involving … [a]ny other domestic relations matter arising under Title 16.1 or Title 20[.]”

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237 leaves the other spouse with two options: They can pursue either (1) a breach-of-contract action or (2) a petition for a rule to show cause. Most of the members of our committee do not practice domestic-relations law. We therefore conducted an informal study of lawyers and judges in different regions of the Commonwealth. We learned that family-law practitioners often use a petition for a rule to show cause to enforce a separation agreement, although practices seem to vary by region. This preference for a rule to show cause is understandable, because a contempt proceeding can be resolved more quickly than a full-blown breach-of-contract action, and time can be of the essence in cases involving custody and support obligations. Also, a trial judge has access to a broad array of remedies in a contempt proceeding, some of which can be quite persuasive. In fact, some members of the bar perceive that, in certain parts of the Commonwealth, judges may even push lawyers to pursue this option. The trial court’s demurrer ruling in Lee, and Spoden’s interpretation of it, are consistent with this impression. See Lee, 290 Va. at 241-42 & 249 n.10. Before Lee, it seems to have been generally accepted in parts of the family-law bar that if a petition for a rule to show cause should prove unsuccessful, the aggrieved spouse would retain the option to bring a breach-of- contract action. Lee has debunked this theory. The decision has been the subject of some discussion amongst the domestic-relations bar. For example, it was analyzed at length during the VTLA’s Advanced Family Law Retreat earlier this year.

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238 Potential problems resulting from Lee v. Spoden Our committee identified three potential problems that result from the holding in Lee v. Spoden. We ultimately determined that none warrant a rule or Code change. First, as noted, there is a perception that some trial judges push litigants to pursue contempt remedies rather than traditional civil actions. This would be problematic insofar as appellate review is more limited in the show- cause context. Our committee, however, found no evidence that judges are forcing litigants to pursue contempt remedies. The judges we consulted uniformly recognized a litigant’s right to pursue a breach-of-contract action, even if they sometimes questioned the wisdom of that decision. And even if judges do impose some pressure on litigants in some cases, intentionally or otherwise, it’s normal to require a lawyer to resist some amount of pressure from the bench to protect her client’s interests. Finally, to the extent that there is a problem with judges pushing litigants to pursue contempt rather than breach- of-contract remedies, that is a problem independent of Lee, and one that is not easily remedied by a rule or Code change. Second, some family-law practitioners have expressed concern that actions for contempt and breach of contract have different elements, and they may have different burdens of proof. As such, it seems odd that a refusal to hold a party in contempt would have res judicata effect on a later breach-of-contract action. While this may be true, as far as it goes, the Court’s analysis in Lee remains fundamentally correct: Notwithstanding any difference in the technical elements

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239 of the two claims, the trial court necessarily decided the factual question of whether Lee or the Company had breached the term sheet when it rendered its contempt ruling. The burden-of-proof issue is thornier because the petitioner’s burden in a civil contempt proceeding remains unsettled. That said, the trial court in Lee did not side with the husband because Spoden had failed to meet her burden of proof. Rather, it affirmatively found that Lee had not breached the term sheet. Lee, 290 Va. at 242 (“After hearing the evidence and argument from the parties, the trial court made several factual findings and concluded that Lee had not violated the Term Sheet.”). Finally, there seems to be something inherently unbalanced in allowing appeals from a finding of civil contempt, but not from a refusal to find civil contempt. This is highlighted by the Lee Court’s aside faulting Spoden for not appealing the trial court’s finding of no contempt, id. at 249-50—even though such a finding is not appealable. To be sure, this concern has intuitive resonance. But that resonance is countered by the fact that the current system has been in effect for more than a century. If it has been causing problems in practice, our committee did not identify them, and those problems certainly were not a result of Lee. The proponent of any change to an appellate regime that has been functioning in place for more than 100 years—and that is based on a common-law rule going back further than that—bears a heavy burden of persuasion. In our judgment, we did not identify a set of circumstances adequate to meet that burden. Even if we had, it is by no means clear that appellate review of a no- contempt finding would have much practical utility. An

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