Testimony Before the Jury

Testimony Before the Jury

Rule 43(a) puts trial testimony in the courtroom. At trial, the witnesses' testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, the civil rules, or other rules adopted by the Supreme Court provide otherwise.¹ One narrow exception follows: for good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.² The default and its exception make sense once you see where testimony falls in a jury trial and what the jury does with it.

Testimony arrives in the middle of a trial whose order is settled. Before any witness is called, counsel give opening statements. These are not arguments. They are a brief roadmap in which counsel explains the nature of the case, names the witnesses she intends to call, previews what they are expected to say, and describes what she believes the evidence will prove.³ Counsel must be careful about what she promises, because the jury is as likely to remember promises broken as promises kept.⁴ The plaintiff then calls and examines her witnesses and submits documents as exhibits, and the defendant's counsel may cross-examine. After the plaintiff completes her case, the defendant calls and examines his witnesses, subject to cross-examination by the plaintiff's counsel.⁵ Strict rules of evidence confine all of this questioning, but those rules belong to the Evidence course and not to Civil Procedure.⁶

The open-court default follows from the jury's job. The jury decides questions of fact, and credibility, meaning how far each witness should be believed, is one of them. The judge decides only whether the law allows relief on the facts the jury finds.⁷ In the federal system, the Constitution itself commits the trial of facts in a civil cause to the jury. When either party invokes its Seventh Amendment right, the jury becomes the principal factfinder, charged with weighing the evidence, judging the credibility of witnesses, and reaching a verdict, and its factual determinations as a general rule are final.⁸ A judgment about believability draws on things a transcript does not carry: how a witness speaks, where she hesitates, and how she answers when challenged. Testimony in open court puts the witness before the jurors who must judge her and before opposing counsel, who may cross-examine her on the spot. The courtroom is the setting in which the jury can do the work the system assigns to it.

The opening clause of Rule 43(a) lets a federal statute or rule prescribe a different method of taking testimony, and where one does, it controls. The remote-testimony clause is a separate exception. It leaves the testimony in open court and changes only where the witness sits. Its key word, contemporaneous, means the testimony reaches the courtroom as it is given, so the jury receives live testimony from elsewhere and not a recording. Three conditions govern the request: good cause, compelling circumstances, and appropriate safeguards.⁹ The first two keep the exception from displacing the default. If a witness's preference or a party's convenience could satisfy them, the exception would swallow the rule, and jurors would lose their look at witnesses in cases where nothing prevented it. The rule does not list the safeguards. A sensible measure of them is whether the jury still gets a sworn witness whom it can see and hear and whom the opposing party can cross-examine.

Both scenes involve a distant witness and a request for video, so distance does not decide the motion. The obstacle does. A wish to avoid a drive is a convenience, and the rule requires compelling circumstances. A hospitalization that makes travel impossible once the trial has begun is the kind of circumstance the rule has in view. The usual exam error is to treat any remote witness, or any efficiency gained from video, as enough to displace the default. A stem that has a witness appear by video describes proper testimony only if the court first found good cause in compelling circumstances and put safeguards in place.

Three smaller provisions of Rule 43 sit beside the open-court rule. When the rules require an oath, a solemn affirmation suffices, so a witness may affirm instead of swearing.¹⁰ When a motion relies on facts outside the record, the court may hear the matter on affidavits, or wholly or partly on oral testimony or on depositions; this provision governs motions and not testimony before the jury.¹¹ And the court may appoint an interpreter of its choosing, fix reasonable compensation to be paid from funds provided by law or by one or more parties, and tax that compensation as costs.¹²