By Donald L. Swanson

Like many attorneys, I’ve recently participated electronically in many court hearings, mediations and trials. That participation is via Zoom and similar platforms (I’ll refer to all, collectively, as “Zoom”).

The Zoom technology is wonderful!  It is revolutionizing litigation processes.  And the resulting changes are here to stay: that’s because the Zoom changes are helpful, efficient and highly effective.

But the Zoom changes raise interesting (and solvable) issues.  For example, witness availability is a crucial factor in hearsay provisions of the Federal Rules of Evidence.  So, what qualifies as witness “unavailability” in a Zoom trial?

HEARSAY RULES

When Availability Is Irrelevant

Federal Evidence Rule 803 says, “The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness” (emphasis added).  Rule 803 identifies 24 such hearsay exceptions, including:

• present sense impression
• excited utterance
• then-existing mental, emotional, or physical condition
• statement made for medical diagnosis or treatment
• recorded recollection
• records of a regularly conducted activity
• public records
• certificates of marriage, baptism, and similar ceremonies
• etc.

When Unavailability Is Required

Federal Evidence Rule 804(b) says, “The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness” (emphasis added).  Rule 804(b) identifies five such hearsay exceptions:

• former testimony
• statement under belief of imminent death
• statement against interest
• statement of personal or family history
• statement offered against a party that wrongfully caused the declarant’s unavailability

Unavailability—The Criteria

Federal Evidence Rule 804(a) says, “A declarant is considered to be unavailable as a witness if the declarant . . . ” (emphasis added).  Rule 804(a) identifies five categories of unavailability as follows, with the pertinent one for our discussion highlighted:

• the witness is exempted from testifying because a privilege applies
• the witness refuses to testify despite a court order to do so
• the witness does not remember the subject matter
• the witness cannot be present or testify because of death, infirmity, or physical or mental illness
• the witness is absent and cannot be compelled to attend or testify.

None of these criteria apply when a party, in an effort to prevent a witness from testifying, causes the witness to be unavailable.

ZOOM AND AVAILABILITY

Zoom technologies raise a new set of issues around this question: how do hearsay rules for an “unavailable” witness work in a Zoom trial? 

Examples of such issues are these:

1. How can a witness be compelled “by process or other reasonable means” (Rule 804(a)(5)) to attend and testify electronically in a Zoom trial?
2. What would a subpoena say to compel the attendance of a witness electronically at a Zoom trial?
3. When a witness from New Mexico is subpoenaed to testify electronically in a Zoom trial before a court in New Hampshire, can the New Hampshire court issue the subpoena?
4. What happens when the witness attempts to attend a Zoom trial electronically but can’t get the technology to work to gain access?

Such issues will, undoubtedly, be easily and quickly solved.  But until the solutions are identified and settled, witness availability will provide one more set of uncertainties and headaches that a litigator must manage in trial preparations. 

Conclusion

Zoom technologies are revolutionizing litigation processes.  And the efficiencies and effectiveness of those technologies mean that Zoom changes are hear to stay.

One fallout from Zoom changes involves rules for the in-person testimony of a witness at trial, along with associated evidence rules on witness availability. 

Solutions to such issues will be simple and easily achieved. It will be interesting to see what solutions the courts develop. 

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