The special aspect of a trial is you are able to have a neutral judge (who is a lawyer) hear the unique facts of your case and receive evidence in the form of exhibits (documents) and live testimony from witnesses before applying the relevant law and deciding your case. This does not occur with appeals to a higher court. However, there are times when key witnesses simply cannot come to court to testify because of infirmity or distance (some may even live abroad) so they need to testify by phone if possible. This blog explores the problem with witness telephonic testimony and the process to get approval for a witness to testify by phone.
As an initial consideration, you should always want to have all witnesses appear in court and testify in person. Even hostile witnesses that support the other side! Why? If your case has reached trial, the stakes are high. For this reason, and if you think about it, it is obvious that a person’s testimony may not match their body language. We have all said in some way in our lives “we are not mad” when our body language and tone of our voice clearly say we are angry, really angry. In court, seasoned judges consider whether a witnesses’ body language and other verbal and non-verbal cues make their testimony credible. A big portion of family law evidence comes down to he-said, she-said and witness’ credibility determination is key (are they squirming in their chair, do they have compressed speech, are gritting their teeth or making a fist?).
If you do not have the witness present, the judge will not see all of the non-verbal signals the witness is making. And every experienced trial attorney has changed the way they ask questions or ordering of questions to try to fully develop the witness’s body language with the way they are answering the questions so the judge can get a true sense of the witness. This wins cases. Ultimately, in the ideal world at trial (or hearing) all witnesses should be present or you are not maximizing all your lawyer can do for winning your case. Sometimes a single witness (or a party) is so genuine or fake this wins the case. The moral of the story is you want witnesses to appear in court.
So that said, the realities of life still sometimes dictate a witness whose testimony is necessary cannot appear for trial. What can be done? Can they testify by phone? In certain cases, such as where two states have child custody proceedings pending relating to the same children, there are specific statutes1 that allow witnesses to testify by phone and the court has wide discretion to allow the same.2 In the balance of cases, Indiana has an administrative rule that must be followed to attempt to have a witness appear telephonically.3
To be successful under this rule and its process, you have to carefully prepare your case in advance because a motion for a witness to testify by phone must be filed and served (on opposing counsel) at least thirty days before trial. But that is not the end of it. The opposing party has seven days after they are served with a motion to testify by phone for a witness to object. The court then has a hearing to determine if it will allow the same. However, the rule allows the court to consider motions not made on time and grant the same if good cause is shown. This might be a new witness that was just discovered. Trial courts are not generally receptive to tardy motions because the party and/or their attorney did not prepare in advance. That said, if it is obvious a party or witness cannot appear, such as a mother or father is on military deployment, the attorneys may reach an agreement to a witness testifying by phone and seek an order from the court to allow it. This saves time, money, and better utilizes court resources.
Ultimately, trial courts (be they a divorce court or general civil litigation court) have vast discretion to allow a witness to testify by phone to effectuate justice. So for instance, a key witness who cannot appear but has key knowledge about what is in the children’s best interests if custody is in dispute, will probably be allowed to testify by phone. Skilled attorneys know how to access a variety of legal tools, such as a motion to testify by phone, to make your best case. This blog was written by advocates at Dixon & Moseley, P.C. who handle divorce and custody cases, as well as appeals, across the state. This blog is written for general educational purposes. It is not intended to be legal advice or a solicitation for services. It is an advertisement.