Witness Testimony Via Electronic Communication
In Florida, family courts waive the requirement that a witness appear in person to testify by allowing certain witnesses to provide their testimony by phone or video conference. Testifying in court can be difficult, especially if the witness lives out of state, so if you or a loved one are involved in a family law matter, it is important to contact an experienced family law attorney who can ensure that your rights are protected.
Rule 12.451
In general, Florida law requires that witnesses must be physically present in order to testify at a hearing or trial. However, according to the Family Law Rules of Procedure, courts may allow a witness to testify via contemporaneous audio or video communication equipment if:
- Both parties agree; or
- Upon reasonable notice, one party provides a written request showing good cause.
Furthermore, the request and notice must include the substance of the witness’s testimony, as well as an estimate on the length of the testimony. In order to ascertain whether good cause has been shown, courts must weigh all of the reasons stated in the request against the potential for prejudice against the other party. Trial courts are permitted to consider various factors in determining whether good cause exists, including the:
- Type and state of the proceeding;
- Presence or absence of constitutionally protected rights;
- Importance of the testimony to the resolution of the case;
- Amount in controversy;
- Relative cost or inconvenience of requiring the witness’s presence in court;
- Ability of counsel to use necessary exhibits;
- Limitations placed on the opportunity for opposing counsel and the finder of fact to observe the witness’s demeanor;
- Potential for unfair surprise;
- Witness’s affiliation with a party;
- Cost and availability of contemporaneous video testimony; and
- Existence of any other factors the court deems material to weighing the request.
Communication Equipment
Communication equipment is defined as a conference telephone or other electronic device that allows those participating to hear and speak to each other simultaneously. The equipment must also allow the conversations of all parties to be audible to everyone present and have the ability to make the witness visible to all participants during the testimony.
This is intended to ensure that the court maintains appropriate control over the equipment and the transmission of the testimony in the event that the judge is required to accommodate an objection or otherwise prevent prejudice.
Additional Requirements
Once a judge has determined that good cause exists to allow a witness in a family law matter to testify via telephone or video conference, the requesting party must ensure that before testimony can be given, a notary public or other authorized person will be present with the witness to administer the oath. Furthermore, the requesting party will be held responsible for the cost of using the communication equipment unless the court orders otherwise.
Litigation involving family members can be difficult, especially when there is contention regarding a witness. If you are considering a divorce or are engaged in custody proceedings, please contact the experienced West Palm Beach family law attorney William Wallshein to schedule a free consultation.
