Testifying at Trial by Skype | New Maryland High Court Opinion

skypeMaryland courtrooms are slow keeping up with the times.  This is not an altogether bad thing.  What happens in the courtroom matters and we should probably let society work out the kinks of technology and understand all of the potential unintended consequences before our judicial system leaps into the next big thing.

That said, geez.  It is 2014.  Can we get wi-fi in the courtrooms?  I can’t even get my phone on the Internet in some courthouses, like P.G. County Circuit Court  not to name any names.  We can e-file pleadings in federal court now and will be able to in state court at some point.  But we are about 15 years behind the curve.  Let’s not let the world get a full generation lead in technology over our courts.

One of the big issues that is increasingly getting attention is witnesses testifying at trial without actually showing up at trial.  Skype is the primary method that gets talked about, probably because its low cost makes it the most desirable.

Undoubtedly, this is a more complicated question when it comes to criminal cases because of that pesky Sixth Amendment’s Confrontation Clause.   The Supreme Court has made it pretty clear that face-to-face confrontation is an essential ingredient to meeting Confrontation Clause muster.  Is Skype or other video conferencing face-to-face?   I imagine we will one day all agree that it is but I can understand the court’s reluctance because a person’s freedom it at stake.

Civil courts are another matter.  In Attorney Grievance Commission of Maryland v. Agbaje, the Maryland Court of Appeals had to deal with a lawyer who entered into a real estate deal with a current client.  I started to write that I didn’t know this was improper but then I thought about it some more.  What if I asked a client who we got a settlement or verdict for to invest in some cockamamie business scheme.  That would technically be an ex-client and I would still know that was wrong.  Anyway, beyond that, he was accused of “dishonest, deceitful, and fraudulent” conduct in getting the client to invest the money in the first place.

The client was a United Kingdom resident who was in the UK.  She was willing to testify but unwilling to, understandably, fly 3,000 miles for it.   My read of the case is that they really needed the client’s testimony to disbar this lawyer.  So Assistant Bar Counsel asked the court to permit the client to testify at the proceeding by video conference via Skype because asking the client to travel internationally would impose upon her an undue hardship.

The court found:

[T]o the extent [the client] was unwilling or unable to appear personally, allowing her to testify over real-time video conference constituted a reasonable alternative… [T]here is no merit to Respondent’s claim that the hearing judge did not impose reasonable safeguards to ensure the integrity of [the client] testimony. Maryland Rule 5-611(a) affords trial judges broad discretion to control “the mode . . . of interrogating witnesses and presenting evidence so as to . . . make the interrogation and presentation effective for the ascertainment of the truth.” The record reflects that the hearing judge required [the client] to take the same oath to tell the truth that she would have taken had she appeared personally in the courtroom.  Moreover, the judge required her to survey the room in which she was testifying, with her video camera, to confirm that she was alone.

That all makes sense but the latter point seems silly.  You can survey the room to confirm the witness is alone but someone can then just as easily walk back in the room, right?

But the bigger point is the “broad discretion” one.  The court did not conclude that Skype may be used at trial.  It is just saying Maryland appellate courts will allow judges to make the call and the judge did not “abuse the broad discretion afforded to him.”

As the widespread use of this kind of technology continues to exponentially grow and as judges get more tech savvy, we are going to have judges going in many different directions until the court or the Maryland legislature makes a bright line rule.

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