Rule 26 Taking Testimony

REPORTER’S NOTE Rule 26(a) states the tradition that testimony of witnesses must be taken in open court, unless otherwise provided by a statute or by these rules. It bears noting that the federal Advisory Committee developed proposals reviewed by the United States Supreme Court in 2002 to permit courts to use remote transmission of live testimony. However, the Supreme Court rejected that proposal because of constitutional concerns over the defendant's constitutional right of confrontation. In a statement issued for the Court, Justice Scalia wrote that "virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to attack real ones." Subpart (b) authorizes, as provided in 5 V.I.C. § 3509, a video recorded admission or confession, if otherwise admissible, is admissible as evidence in any criminal proceeding. Subpart (c) implements 5 V.I.C. § 3510, which provides that testimony of minors who are the victims of sexual or child abuse, in certain proceedings the testimony of a minor 16 years of age or younger may be taken by contemporaneous examination and cross-examination in a room near the courtroom and out of the presence of the jury, defendant and public, and communicated contemporaneously to the courtroom by means of two-way closed-circuit television, if the procedures required by the statute are followed, the required findings are made by the court, the specified conditions are implemented, and a video recording is made of the proceedings.