June 09, 2020 Articles

Will COVID-19 Make “Unavailable” Witnesses Available?

As pandemic emergency orders begin to expire, courts will need to turn to preexisting rules or amendments of those rules for authority to continue the use of remote witness testimony.

By David C. Kent

The COVID-19 pandemic has had tremendous effects on all segments of society, including the judicial system. Although most courthouses around the country shut down to daily traffic, judges and practitioners quickly adapted to using technology for online communication to find ways to resume business. While some hearings continued to occur at the courthouse, most occurred by telephone or live-streaming connections. Indeed, some courts even established their own YouTube channels to make their proceedings available to anyone with an internet connection. Courts everywhere continue to see the promise of technology realized to one degree or another, raising the question of how those experiences may affect trial practice, and specifically remote witness testimony, once in-person trials resume.

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