Labor Logic

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John D. Finerty, Jr.

Securing a witness’s attendance at trial is usually routine when the witness is also a party. Getting a third party witness to testify, however, can be more challenging.

Attorneys typically have subpoena power, but subpoenas are of limited use when the witnesses are out of state or out of the country.

Telephone testimony may be an option in some cases. The recent case of Hamid v. Gonzales, Case Nos. 04-1600 and 04-2013 (7th Cir., Aug. 2, 2005), challenged a ruling from an immigration judge that refused to allow expert testimony by telephone. Although immigration cases are unique in that they operate under rules different from those that apply in state or federal court, this case makes an important point about telephone testimony.

Case Background

The petitioner in Hamid v. Gonzales was a Palestinian resident of Syria who faced deportation proceedings here as a result of pleading guilty to fraud and theft charges.

He sought asylum under the United Nation’s Convention Against Torture, arguing he would be persecuted and tortured if returned to Syria. The immigration judge (IJ) and the Board of Immigration Appeals (BIA) that heard his case denied his request.

Hamid petitioned the U.S. Court of Appeals for the Seventh Circuit seeking to reverse the BIA on the basis that the hearing procedures denied him due process because the judge refused to allow an expert witness to testify by telephone from London. In support of his petition, Hamid submitted to the IJ affidavits from a professor of Middle Eastern history at Tel Aviv University and from the president of the Syrian Human Rights Committee in London.

The affidavits discussed the general political situation in Syria, that government’s routine use of torture, and the military service requirement that, presumably, Hamid would have been subject to. Hamid asked that the IJ allow his expert in London to testify by telephone at his immigration hearing. The IJ denied the request without explanation.

The Seventh Circuit affirmed the IJ’s decision, holding that denying an expert the opportunity to offer oral testimony, in addition to a written submission, does not deny a petitioner due process in an immigration appeal. In some cases, however, refusing to permit live testimony may deprive an asylum applicant of a meaningful opportunity to be heard.

For example, the IJ in Kerciku v. INS, 314 F.3d 913 (7th Cir. 2003), denied live testimony and cut off much of the applicant’s own testimony. In Podio v. INS, 153 F.3d 506 (7th Cir. 1998), the judge interrupted the testimony of the applicant and entirely excluded corroborative testimony from his siblings. In Niam v. Ashcroft, 354 F.3d 562 (7th Cir. 2004), the judge disallowed both the expert’s oral testimony and his affidavit. In Hamid’s case, however, the judge only excluded oral testimony but allowed the expert’s affidavit and report.

Analysis

Live testimony is preferable to written submissions in most cases. See Whitlock v. Johnson, 153 F.3d 380 (7th Cir. 1998). The court in Hamid, however, made an important point about telephone testimony of expert witnesses in particular. That is, oral testimony is important to allow a finder of fact to assess credibility by observing the witness’s expressions, mannerisms and other indicators of truthfulness. According to the court, however, "observable factors like demeanor and tone of voice are less important when it comes to expert witnesses, whose reliability is supposed to be based on their expertise rather than on what they claim to have witnessed."

In other words, the credibility of the underlying assertions by the expert were at issue, not its method of delivery. Denying the expert the opportunity to offer oral testimony did not, therefore, deprive Hamid of a meaningful opportunity to be heard.

Wisconsin Law on Telephone Testimony

Section 807.13(2) controls whether a Wisconsin court may allow telephone testimony during an evidentiary hearing. The statute specifically requires a showing of "good cause." To evaluate good cause, the statute requires a court consider 8 factors:

• 1. Whether any undue surprise or prejudice would result;

• 2. Whether the proponent has been unable, after due diligence, to procure the physical presence of the witness;

• 3. The convenience of the parties and the proposed witness, and the cost of producing the witness in relation to the importance of the offered testimony;

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  4. Whether the procedure would allow full effective cross-examination, especially where availability to counsel of documents and exhibit available to the witness would affect such cross-examination;

• 5. The importance of presenting the testimony of witnesses in open court, where the finder of fact may observe the demeanor of the witness, and where the solemnity of the surroundings will impress upon the witness the duty to testify truthfully;

• 6. Whether the quality of the communication is sufficient to understand the offered testimony;

• 7. Whether a physical liberty interest is at stake in the proceeding; and

• 8. Such other factors as the court may, in each individual case, determine to be relevant.

For more information on presenting trial testimony by telephone or for assistance with trial issues generally, contact John D. Finerty, Jr. at Michael Best & Friedrich LLP at (414) 225-8269 or by email.