By Shira Zucker

Last summer, those who tuned in to watch live telecasts of the George Zimmerman murder trial witnessed the prosecution fumble through an embarrassing technological snag.  The prosecution’s cross-examination of a defense witness who appeared remotely via Skype was interrupted when dozens of other Skype users “jammed” the chatline.  According to at least one source, pranksters had posted the witness’s Skype username to the online community 4chan and the username was broadcast on national television.  After a barrage of distracting “pings,” the judge aborted the Skype testimony and ordered that it continue via speakerphone.

Remote testimony is not new to courtrooms.  Back in 1990, the Supreme Court ruled in Maryland v. Craig that testimony by an alleged child sex abuse victim via Closed-Circuit Television (CCTV) did not violate the Confrontation Clause of the Sixth Amendment.  An increasing number of trial courts have since ruled that live web-based video interviews in criminal trials do not impinge the defendant’s right to confront witnesses against him.  Notably, the CCTV technology used in Craig transmits a closed signal.  Arguably, web-based technologies could increase the risk of interference with the defendant’s right of cross-examination or the jury’s ability to adequately assess the witness’s body language and demeanor, due to the threat of technical glitches or unsecure networks.

In civil trials, where the Confrontation Clause is not an issue, judges have the discretion to permit witnesses to testify remotely via telephone or videoconferencing pursuant to Federal Rule of Civil Procedure 43(a). The rule allows contemporaneous transmission where there is (1) good cause (2) compelling circumstances, and (3) appropriate safeguards.  The Advisory Committee interprets the good cause and compelling circumstances elements as generally requiring unexpected circumstances like an accident or an illness.  However, courts interpreting Rule 43 have found good cause and compelling circumstances where the witness would be seriously inconvenienced by travelling great distances in order to testify.

The more interesting inquiry in light of the Zimmerman debacle is what might constitute and “appropriate safeguard” for videoconference technology under 43(a).  The Advisory Committee Notes generally provide that safeguards must ensure accurate identification of the witness, protection against influence by persons present with the witness, assurance of accurate transmission, and that “[o]ther safeguards should be employed to ensure that advance notice is given to all parties of foreseeable circumstances that may lead the proponent to offer testimony by transmission.” In Virtual Architecture, Ltd. v. Rick, the District Court for the Southern District of New York examined these and other safeguards in assessing the propriety of web-based video testimony. It noted that, at one point in questioning, a witness indicated that the video feed from the courtroom had ceased, but the jury reported that they were still able to see and hear the audio and the video transmission throughout the witness’s testimony. Because the jury could see and hear the transmission throughout, the witness’s failed signal did not negate the presence of sufficient safeguards.

Perhaps it’s time for the Advisory Committee to revise its list of appropriate safeguards by adding, for example, protecting witness’ usernames from live broadcast.