New Jersey Criminal Defense Attorney Blog
At the beginning of the COVID-19 crisis, the New Jersey courts were all but closed. Slowly, the Courts began to resume operations with proceedings being conducted virtually via Zoom and Microsoft Teams. The COVID-19 experience introduced these virtual tools into the courts, and they still remain in use on a fairly wide scale. Many Superior Court matters are still being heard via Zoom or Teams, and our trial judges have been given a fair amount of discretion to decide when a matter can be heard virtually. The majority of municipal court matters are being heard via Zoom. It appears that we now have a hybrid system which includes virtual and live proceedings as judges, attorneys and parties have all realized that virtual platforms can be used to make our courts run more efficiently. However, our courts have also found that there are some proceedings (other than trials) that simply cannot be conducted via Zoom.
Our Appellate Division recently considered the limits of Zoom proceedings in State v. Lansing (A-1592-23, 10/3/24). There, the defendant moved for an order allowing his expert to testify remotely at a pre-trial evidentiary hearing, and at trial. The subject of the testimony was photogrammetry, which is a scientific field involving the use of photography in surveying and mapping to measure distances between objects. The experts were also expected to testify concerning forensic video analysis, bullet trajectory analysis, and related subjects. The testimony was obviously highly technical, and was very significant since it went to the admissibility of the State’s evidence at trial and the identity of the defendant as the perpetrator of the underlying offenses. Prior to being retained, the defense expert informed counsel that he would have to testify remotely at any pre-trial hearings and/or at trial, both because of personal health issues and the fact that he was the primary caregiver for his seriously ill spouse. The expert lived in New York State, approximately 1 1/2 hours from Court. The State refused to consent and opposed the defendant’s motion.
The Trial Court found that the expert testimony at issue went to the heart of the case since it concerned issues of admissibility and identification evidence. The testimony would also have a significant impact on the case since it went directly to whether or not the State’s expert testimony was admissible at trial, as well as its reliability. Additionally, the testimony would be very technical and heavily disputed. As such, the credibility of the witnesses and an assessment of their knowledge, skill and experience would be at issue, and virtual testimony would make such a determination very difficult both for a judge acting as a factfinder at a pretrial hearing and a jury of lay persons at trial. The trial court also anticipated extensive cross-examination, which could be hindered by a remote appearance. Further, the trial court found that an in-person appearance would not result in an unreasonable financial burden or any undue delay since the defense expert lived relatively close to the courthouse. Moreover, the defense expert informed counsel that his testimony would have to be remote prior to his retention in the case. Thus, counsel could not claim that they were surprised by this issue. Finally, any health-related concerns that the defense expert had could be addressed by reasonable accommodations such as masking, clear screens and social distancing. Against this backdrop, the trial court denied the defense motion to allow its expert to testify remotely.
The Appellate Division affirmed, noting that the trial court’s analysis properly employed the following factors developed through prior caselaw that are used to analyze requests to allow remote testimony: (1) the witness’s importance to the proceedings; (2) the severity of the factual dispute to which the witness will testify; (3) whether the factfinder is a judge or jury; (4) the cost of requiring an in-person appearance relative to allowing testimony in another format; (5) the delay caused by insisting on an in-person appearance relative to the speed and convenience of allowing the witness to testify in another format; (6) whether the witness’s inability to be present was forseeable; and (7) the witness’s difficulty in appearing in-person. In affirming, the Appellate Division found that the trial court correctly employed these factors in its analysis of defense counsel’s request for remote testimony.
The message is clear – Zoom and Teams are great tools that can make court proceedings more efficient, but there are times when in-person testimony is critical and cannot be dispensed with.
James S. Friedman is a New Jersey criminal defense attorney based in New Brunswick. Mr. Friedman represents individuals with criminal charges in the New Jersey Superior Court in all counties, all New Jersey municipal courts, and in all three New Jersey vicinages of the the United States District Court. If you have charges in any of these courts, call Mr. Friedman to discuss your case and your options.
