By Dr. Ken Broda Bahm:
So you’re conducting a deposition or cross-examination: Where is the witness? Are they right there in the room with you, or are they many miles away in a room with their computer? With the pandemic still raging across the U.S., many are social distancing their testimony via Zoom or other web-conferencing platforms. Instead of being in a crowded conference room or courtroom, they are alone in a separate space in front of their laptop. Or, perhaps I should say, presumably alone. A consulting colleague of mine, Dan Dugan, recently shared his experience of discovering that a remotely testifying witness was being coached by someone off camera. “The offending person was ‘caught’ because the coaching was audible,” he notes, but “It doesn’t take a genius, though, to figure out silent, discreet, and undetectable ways to provide answers to a witness in remote proceedings, like a person behind the camera with hand signals, head nods, a white board to write on.”
Others have shared that concern. In a recent article in News Law, Jennifer Lapinski, Robert Hirschhorn, and Lisa Blue note not only the potential for off-camera coaching, but also the possibility for a witness to be surreptitiously looking at documents or notes without the questioner knowing it. While these authors use that risk as a reason to avoid online testimony, and online trials altogether, I believe that it is a reason to question remote witnesses carefully about the presence or absence of any off-camera resources. In this post, I’ll look at the reasons for asking and offer some ideas on the questions you should ask.
Why You Should Ask
In any testimony, there are all kinds of ways that a witness who wants to can lie and cheat. They can memorize the scripted answers from their lawyer, they can look at documents that they deny having reviewed, and they can lie. Even the little earpieces we saw in the movie The Runaway Jury are theoretically available. What prevents more witnesses from being dishonest? Not just a fear of getting caught, but also a fear of having to put oneself at risk through perjury.
That is the traditional choice that is offered to a witness: The lawyer knows, “If I ask the right question, then you will be faced with the choice of either telling me the truth, or perjuring yourself.” Just knowing that the question is likely to be asked will also serve as a deterrent, as many witnesses are told, “Don’t review that…because we know you’re going to be asked what you reviewed.” Of course, there is no guarantee of truthfulness, and if a witness choses to be a true sociopath, they may still do what they want and then lie about it. But putting the witnesses on record about their resources is the best solution we have, and the solution we rely on in every other instance of possible witness dishonesty.
What You Should Ask
It some cases, it may be enough to ask the question as an overview:
Now, Mr. Smith, with this arrangement, I can see you on the camera, but I cannot see what is on the table in front of you, what else may be on the monitor of your computer, and what else is within your total field of vision. Do you have anything in your immediate environment — anything that is visible to you or otherwise available to you — that you will using to aid you in answering the questions I will be asking you today?
Am I correct in assuming that it is just you in front of your laptop, with no one else and nothing else helping you answer these questions?
Am I correct in my belief that the only information you will be looking at during this testimony are documents that I share with you and ask you to look at?
Where you have a reason to be suspicious you may want to dig deeper beyond that overview:
Do you have any notes in front of you?
Do you have any notes anywhere in this room?
Are you alone in this room?
Is anyone other than the four of us on this Zoom conference able to hear your responses?
If your lawyer is physically with you, can I request that your lawyer join us on her laptop as well?
Do you have any windows or programs open on your laptop other than Zoom?
Do you have any posters or white boards in the room you are now in?
Do you have the ability to rotate your camera 360 degrees so I can just see the space that you are in?
If anything changes during this testimony and information does become available from some source in your environment, will you let me know?
Of course, a witness could lie in response to any of these questions, but just as with other forms of cheating, there is a high cost to that. If it does come out that a witness has lied, you will certainly want them to have laid the perjury-predicate by denying it.
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Other Posts on Online Trials and Testimony:
- Adapt to Remote Communication (Including Testimony)
- Online Trials: Expect Both Challenges and Opportunities
- Prepare for Your Zoom Hearing
Image Credit: Picture taken by the author.