Can a party compel a witness to appear in-person for trial in New Jersey on a Civil Matter ?
Updated: Jul 22, 2021
The following matters will be conducted remotely using video and/or phone
options only with the consent of all parties in New Jersey:
(1) sentencing hearings in Criminal, Family, and Municipal matters;
(2) juvenile delinquency adjudications;
(3) evidentiary hearings and bench trials in Criminal matters;
(4) evidentiary hearings and trials in Municipal matters that involve a reasonable likelihood of a jail sentence or loss or suspension of license; (5) termination of parental rights trials; and
(6) hearings for an adjudication of incapacity and appointment of a permanent
Otherwise, because the ability of the Judiciary to livestream remotely conducted court events is limited by finite available resources, Civil, Family, General Equity, Probate, Special Civil Part, and Municipal matters will not be livestreamed, absent a showing of good cause in a particular matter, with the judge to make that determination. See Directive #12-20 issued on April 27, 2020.
“Our court rules do not provide for testimony by way of contemporaneous video transmission, but they don't prevent it either.” Pathri v. Kakarlamath, 462 N.J. Super. 208, 212 (N.J. Super. 2020).
Parthri is a civil case that conducted the most recent and in-depth analysis regarding this specific issue. There, the plaintiff, one who sought to appear virtually, submitted a motion in limine to testify from India. The trial court in Parthri denied plaintiff’s motion in limine on the basis that it would “inhibit [the defendant’s] ability to assess plaintiff’s testimony and credibility.” Id at 212.
Ultimately, the Appellate Division vacated and remanded the trial court’s decision to simply require a “do-over” because the Appellate Division thought that precedent was lacking for it to pave the way for a groundbreaking decision. The analysis in Parthi, however, should be considered as well as the trial court’s decision to deny plaintiff’s motion in limine.
As Parthri notes, this issue was only analyzed in two other cases: (1) State v. Santos, 210 N.J. 129 (2012); which relied on (2) Aqua Marine Products, Inc. v. Pathe Computer Control Systems Corp. 229 N.J. Super 264 (App. Div. 1988). The Appellate recognizes the shortcomings of the Santos court relying on Aqua Marine which was decided in 1988, a time before Skype, Zoom, and FaceTime were merely an imagination.
In elaborating on Aqua Marine’s “exigent circumstances” and “certainty in the witnesses’ identity” requirement, the Parthri court, for the first time, elaborated upon eight (8) factors for our courts to consider:
1) the witness' importance to the proceeding;
2) the severity of the factual dispute to which the witness will testify;
3) whether the factfinder is a judge or a jury;
4) the cost of requiring the witness' physical appearance in court versus the cost of transmitting the witness' testimony in some other form;
5) the delay caused by insisting on the witness' physical appearance in court versus the speed and
6) convenience of allowing the transmission in some other manner;
7) whether the witness' inability to be present in court at the time of trial was foreseeable or preventable; and
8) the witness' difficulty in appearing in person.
The first factor speaks for itself. The greater the witnesses’ importance in the dispute the heavier the burden should be in excusing in-person testimony. Id at 216.
As for the second factor, the Pathri court opined that the burden should be greater if the testimony goes to the “heart of the matter.” For instance, if the witness's testimony goes toward authenticating a document under the business records exception to the hearsay rule, such is more distant from the "heart of the matter" than a witness who is alleging fault of the torts in question.
The Parthri court suggests that for the third factor a Judge is in a better position to evaluate a witness’s credibility virtually than a layperson. Absent a jury trial, this factor would weigh in favor of a remote proceeding.
As for the fourth factor “whatever costs are associated with requiring the witness to appear in person should be weighed against the cost of the contemporaneous video transmission.” Id at 218. That would not only include the travel and lodging expenses necessarily incurred but other costs, such as the impact on a party's income caused by a loss of time from work. Id.
For the sake of brevity, writer is refraining from personal evaluations of the remaining factors.
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