Zoom! Zoom! Zoom! Only One Witness In The Room (For Remote Trial Testimony)

By: Peter J. Gallagher (LinkedIn)

Just before the pandemic turned nearly all New Jersey courtrooms virtual, the Appellate Division issued its decision in Pathri v. Kakarlamath, which dealt with the standards trial courts should use to assess a party’s request to appear remotely for trial. I wrote about it here “Before Applying a 30-Year Old Decision to Modern Technology, A New Jersey Court References A Musical From the 1890’s.” Who knew at the time how timely that decision would become?

Now the Appellate Division has revisited the issue (minus theatrical references). In D.M.R. v. M.K.G., the Appellate Division acknowledged the issues courts have faced since Pathri , and addressed the challenge of ensuring that remote hearings are as fair as possible:

Little did we know that within two months our entire court system would begin to rapidly transform from in-person to virtual court proceedings, utilizing various remote video and telephonic platforms, in an effort to continue operations amid the social distancing measures necessitated by the COVID-19 pandemic. Since that time, New Jersey Courts have operated primarily remotely via platforms like Zoom, Microsoft Teams, and telephone conferences, with the goal of preserving the quality of justice our courts have traditionally striven to provide when court was conducted in-person. Trial courts and staff have undertaken a herculean effort in rising to this unprecedented challenge. However, despite their efforts, the formality of the courtroom can fall away. Everyone may not have the same access to technology. These proceedings often involve unrepresented litigants unfamiliar with court proceedings, which presents its own challenges now amplified by the virtual proceeding. Moreover, judges do not have the same mechanisms to control the proceeding that they would have in a live courtroom

It was “through this lens” that the Appellate Division addressed the issues in D.M.R.

D.M.R. involved a final restraining order hearing. This post will not delve too deeply into the facts, but some reference is necessary for context. Plaintiff and defendant had “a dating relationship.” After it ended, an incident occurred between the two that led plaintiff to obtain an ex parte temporary restraining order against plaintiff, his former girlfriend. The trial court chose to conduct the final restraining order hearing via Zoom.

During the Zoom hearing, neither party was represented by counsel. During his testimony, plaintiff mentioned that his mother was sitting right next to him. (His mother must have been off camera because the court did not suggest that it was aware of her presence until plaintiff mentioned her.) The judge advised plaintiff that his mother would not help him out and needed to remain quiet, but did not instruct plaintiff’s mother to leave the room (virtual or otherwise). Plaintiff’s mother, who was a witness to the incident between plaintiff and defendant, later testified at the hearing on her son’s behalf. The judge gave defendant the opportunity to question plaintiff and his mother, but defendant refused.

Defendant then testified on her own behalf. After her direct testimony, the judge and plaintiff each questioned defendant.

After the hearing, the judge granted the final restraining order.

Defendant appealed, arguing, among other things, that her due process rights were violated during the hearing. The Appellate Division agreed, in part because plaintiff’s mother was in the room with him while plaintiff testified. As the court noted:

Although there are obvious, understandable challenges facing judges who seek to administer effective trials using videoconferencing technology, court directives and due process must nevertheless be maintained. Specifically, each witness must be alone while remotely testifying. The purpose of sequestration is to discourage collusion and expose contrived testimony. The presence of plaintiff’s mother throughout this trial was problematic. Additionally, the parties should not address one another directly, as they did here. These longstanding guardrails remain in place alongside technological advances so that courts may continue to fairly and effectively serve the public amid a grave public health crisis.

(citation omitted). The court further held that the judge’s questioning of plaintiff’s mother crossed the “fine line that separates advocacy from impartiality.” While it acknowledged that, in a bench trial, a judge is allowed to examine witnesses to clarify testimony, aid the court’s understanding, elicit facts, and assure efficient control of the trial, the judge must take care to avoid being perceived as an advocate for one side or the other. The Appellate Division held that the trial court crossed this line with some of its questioning, both of plaintiff’s mother and of defendant herself.

The Appellate Division vacated the final restraining order.

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