Skype: A New Way to Testify

In time, distance and illness may no longer excuse some witnesses from testifying in court. Courts are gradually becoming more accepting of the use of technology in courtrooms to promote efficiency and fairness at trial. However, while using technology, such as Skype, in the courtroom instead of in-person testimony may simply be another progressive step taken by courts into the twenty-first century, it also gives rise to legal controversy.

Rule 804 of the Federal Rules of Evidence provides an exception to the rule against hearsay when a witness is unavailable due to infirmity, unavoidable absence, or forfeiture. Furthermore, the Sixth Amendment to the United States Constitution gives criminal defendants the right to “confront” witnesses who testify against them. The defendants have the right to be present and in view while the witness testifies, and also enjoys the right to cross-examine such witness. When a witness is unable to testify in court, the defendant should have had an opportunity to cross-examine the witness in order for the admissibility of testimonial out-of-court statements.

Skype is a web-based service that allows individuals to make free Internet video phone calls. If one has a laptop or mobile phone with a solid Internet connection and a front-facing camera, they could reach another person, or people, almost anywhere in the world for a video phone call.

Recently, there have been a few instances in civil and criminal cases, where courts have allowed the use of Skype so a witness could testify. In one instance, Law Technology News reported that an out-of-state witness was allowed to testify against the government via Skype in a criminal case because the defendant could not afford the witness’s travel costs. There were a few technological glitches during the witness’s testimony due to a few brief Internet disconnections, yet there was a large flat screen television set up in the courtroom for the jury, and others in the courtroom, to see. This decision by the Georgia Superior Court raised Confrontation Clause issues because the witness’s testimony was technically made out of court. However, since the defendant is calling this witness to testify via Skype, his confrontation rights were not at risk. In another instance reported by the Wall Street Journal Law Blog, a bedridden man looking to extend a protection order against his estranged wife was allowed to testify from his home using Skype. The lawyer used his iPad for the Skype call so the judge and opposing attorney could watch the call. In spite of some connection issues during the testimony, those involved found that using Skype was more efficient and cost-effective than the accommodations needed to bring the witness into court.

It was only a matter of time before court adopted this advance in technology. Attorneys use information from Facebook and e-mail as evidence, for example, so it is not surprising that video conferencing technology is slowly being implemented into courtrooms. While it is understandable why some may hesitate to accept the use of such technology for evidentiary or constitutional reasons, courts already find some forms of video technology acceptable in pleas, depositions, and testimony from children. Furthermore, when one makes a Skype call, attorneys for both parties may direct or cross-examine the witness as they normally would during testimony in court, thus the Confrontation Clause argument is weakened. The use of Skype may also help in saving money for all parties by limiting travel or special accommodation expenses. However, some money is necessary in equipping courtrooms with adequate technology and service connections to make Skype calls run more smoothly. Nevertheless, if courts are able to work out the technological kinks in making Skype calls to out-of-court witnesses, this may be an effective and economical solution to problems of getting certain witnesses into the courtroom.