In this case the Supreme Court permits court testimony by telephone. It’s a mental health case, so there are points of distinction, but it should probably be at least a blip on a civil trial lawyer’s radar.

A statute requires that two doctors testify for the State at a commitment hearing. In this case one of them was out of town, the patient refused a continuance, so the court took his testimony by phone. The patient appealed the resulting commitment order.

The Court of Appeals reversed, deciding that although commitment hearings are civil a patient’s due process rights include a Sixth Amendment right of confrontation. The telephone failed Sixth Amendment analysis.

The Supreme court vacates that opinion and affirms the commitment order. Commitment hearings are civil. The Sixth Amendment does not apply to civil proceedings. Instead, a due-process analysis applies. Telephonic testimony “does not significantly increase the risk” of an incorrect result. The witness on the phone was “subject to full cross-examination.” In addition, the patient’s lawyers already had his report and his testimony largely overlapped that of the doctor who gave live testimony.

Some context is useful. Commitment proceedings, theoretically civil, are handled by county attorneys and public defenders, which means that for purposes of strategy and tactics they have turned into what those folks know: criminal cases. The lower courts have to some extent been caught up in that mood. This opinion is perhaps not so much a call for wider civil use of the telephone as a reminder that commitment really is a civil proceeding.

It will, though, be cited by lawyers who for various reasons can’t or don’t want to show the jury their witness. Of course, taking trial testimony by phone is not unheard of and in administrative hearings bureaucrats do it all the time. And this case deals with a bench proceeding, not a jury trial. But this is the direction the courts want to take us, toward trials as administrative hearings – short and simple, in rooms with a few people and, increasingly, a lot of machines. In theory all finders of fact are entitled to consider the witness’s demeanor, etc., even with experts, and we know that juries pay a lot of attention to that (thus the defendants who show up for trial sporting their first suit, tie, and shave). That used to be an argument in favor of using juries. And anybody who’s tried cases will wonder about that “subject to full cross-examination” idea. Mustn’t question progress, though.

(link to opinion)