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Rule amendment sets standards for remote hearings

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Creates presumption that shorter, non-evidentiary hearings would be allowed

remote depositionA procedural rule amendment to make it easier to get remote non-evidentiary hearings lasting up to 30 minutes and also to set standards for remote evidentiary hearings has been endorsed by the Rules of Judicial Administration Committee.

The amendment to Rule of Judicial Administration 2.530 was in the works before the COVID-19 pandemic hit but took on a special urgency since last March when most non-criminal in-person court proceedings were halted.

Sandy Solomon, who chaired the subcommittee that prepared the final draft, said there are three parts to the amendments: one addressing non-evidentiary hearings; one addressing evidentiary hearings; and one addressing the swearing of witnesses. The rule also deals with the definition of audio and audio/video communications.

“There is a favorable presumption that for non-evidentiary hearings in which all parties consent or another rule of procedure permits or a hearing is scheduled for 30-minutes or less, that you should grant the right to have a hearing by audio or audio/video communications, so that the burden is on showing good cause to deny the request if you have consent, permission from another [procedural] rule, or the hearing is of limited duration,” Solomon said.

For evidentiary matters “we allowed [electronic] testimony to be taken if all parties consent or if permitted again by another applicable rule of procedure,” he said. The rule requires the motion for such an audio or audio/video hearing to set out reasons, costs, the value of the testimony, travel, and other factors.

“In the non-evidentiary matters, you have to show good cause to deny the request for [the hearing], so the objector has the burden,” Solomon said. “[For evidentiary hearings] you have to show good cause as to why the testimony should be allowed…and here are the factors that apply.”

The current rule allows remote hearings in non-evidentiary hearings at the discretion of the judge who must consider any objections from the parties. It allows a judge to approve remote hearings up to 15 minutes in evidentiary matters, except in criminal, juvenile, and appellate proceedings, unless a party shows good cause in opposition.

The amendment originally proposed that administration of the oath could be accomplished remotely if the witness has a government-issued photo ID or other appropriate documentation that would be described on the record. After discussion, that was changed to allowing the testimony after the witness’s identity was confirmed.

In response to a question, Solomon also said the rule would apply to depositions, although again other procedural rules would take precedence.

“I don’t think it [the proposed amendment] is limited to in-court testimony because some rules allow depositions as testimony,” Solomon said.

Committee member Keith Park, who worked on the amendments since their inception, noted that the rules of civil procedure allow the taking of depositions after filing a notice and without judicial approval, and those would control in civil cases.

He also said the evidentiary rules allow for the constitutional right to confront witnesses in juvenile and criminal proceedings, an issue that doesn’t arise in non-evidentiary hearings. It also is why the rule allows other procedural rules to take precedence.

Committee member Tom Hall questioned the original language requiring a government photo ID for remote witnesses, noting he’s remotely testified as an expert witness in other states and has never been asked for an ID. He also said that adds an extra step not required for in-person testimony.

The committee agreed to change the language to allow a witness to testify when the person administering the oath confirms the person’s identity.

The committee approved the proposed rule on first reading 23-3. It will come back for second reading at the committee’s June meeting. If approved there, it will be published for comments and reviewed by the Board of Governors, and then submitted to the Supreme Court.

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