3/27/2023 0 Comments The witness controls![]() ![]() For instance, a virtual trial environment hinders counsel’s ability to identify, monitor, and control what notes or other materials are within the reach and/or view of a remote witness, and/or whether a witness is receiving emails, text messages, or other communications from an attorney or a party during an examination that would never occur in an actual courtroom. Virtual trials are more susceptible to improper witness and attorney interaction than typical, in-person trials. This shift in control can have significant implications for the outcome of a trial if not properly managed by counsel and the court. This gives witnesses a greater degree of control over what may be viewed by the attorneys, judge and jury than in a typical courtroom setting. This problem is compounded by the fact that, generally, witnesses testifying remotely are free to appear via a laptop, tablet, cell phone, or other device of their choice. When a witness appears remotely, the in-person opportunity to evaluate the witness’ demeanor, gestures, and other conduct that may assist the fact finder in making a credibility determination is substantially altered. It is universally recognized that the credibility of a trial witness is as important as the weight of the evidence in the record for the jury or judge to evaluate. Remote Testimony Shifts More Control to the Witness Given the near certainty that virtual trials will continue into 2021, we offer suggestions for establishing procedures to prevent any such issues from occurring. While no issues arose during our case, the experience revealed certain potential challenges associated with controlling witness conduct and attorney-client interactions in a virtual environment that simply are not present in the actual courtroom. While the parties quickly agreed with the court to proceed remotely in order to keep the previously scheduled trial date, minimal consideration was given at the time to the procedures that would govern the appearance and conduct of the remote witnesses during the trial. District Court for the Western District of Pennsylvania that was necessitated by the continuing impact of Covid-19. ![]() We recently completed a virtual bench trial in the U.S. ![]()
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