An Australian court has embraced the age of digital communications by allowing expert witness testimony to be delivered via Skype or other teleconferencing applications. Called remote witness evidence, the experimental practice has been utilized in select criminal courts over the past 12-months. Feedback on the procedure seems positive, particularly from expert witnesses who do not have to travel, but remote witness testimony is a long way from becoming widely accepted – particularly in the US.

Remote Expert Witness Testimony Useful in Australian Criminal Trials

Initiated to end the hours spent by police officers and other expert witnesses waiting at the courthouse, the driving force behind Australia’s experiment with remote testimony is efficiency in the legal system. Deputy Police Commissioner Catherine Burn touted the advantages of remote testimony by saying that time spent as a witness was “something that police have had a real frustration with for decades” before teleconferencing provided a solution. Prosecutors must notify the court that expert witnesses or police intend to present testimony remotely, and if the judge determines that the evidence is too contentious, the witness must still report to court in person.

In addition to trimming the time spent by expert witnesses, allowing remote testimony has two other notable advantages:

• Cost: Paying an expert witness to travel to a courthouse for testimony can get expensive – particularly if the expert is not local. Hiring an expert witness can be expensive, and costs such as flights, rented cars, meals, and hotel rooms can easily make the use of some experts too pricey for a number of criminal defendants.
• Expanded Access: With concerns over travel costs effectively eliminated, clients in a remote testimony environment have expanded access to a variety of experts. Over the course of Australia’s experiment with remote testimony, some cases featured testimony by experts in other parts of the country and even as far away as England.  With remote testimony in place, clients can rely on expert witnesses from virtually anywhere – providing the internet connection allows for easy teleconferencing.

Australian courts making use of remote testimony reported little to no problems with connectivity or communication quality, meaning introducing expert witness testimony via teleconference was not significantly different than doing so in person.

United States Unlikely to Welcome Remote Expert Witness Testimony

The concept of remote witness testimony is not uncontemplated by American jurisprudence.  The Supreme Court spoke directly to the issue in 2004’s Crawford v Washington, and directly rejected widespread use of remote testimony as being in violation of the Confrontation Clause of the Constitution. The Confrontation Clause gives every criminal defendant the right to physically confront, in court, any witness – including an expert witness – who offers evidence during trial. The Crawford opinion echoed the Court’s decision to reject a 2002 amendment to the Federal Rules of Evidence that would have allowed remote witness testimony based on concerns over the Confrontation Clause. The Supreme Court, setting the tone for the American legal system, has declined the opportunity to allow widespread use of remote expert witnesses, and it is unlikely the thinking will change dramatically despite technological advances that have made teleconferencing more affordable and reliable since the Court last weighed in.

Although the issue of remote testimony seems stagnant in the United States, it is not necessarily dead. Courts already allow limited use of teleconference testimony, typically reserved for situations in which the witness is intimidated by the defendant and unable to confront him in court – none of which would apply to use of experts. As technology improves teleconferencing – an innovation clearly not considered by the Constitution – Courts may begin to recognize that defendants are still able to confront a witness who testifies remotely. Legal scholars continue to keep the issue fresh (see articles here, here, and here), and it is possible, even likely, that a younger generation of judges who are more familiar with technology will be willing to open the door for remote testimony across the U.S.