Rule 26.2 Testimony by Video Conference

(a) Testimony by Video Conference. Notwithstanding Rule 26(a), with the court’s prior approval, the parties may agree to take testimony from a witness in an evidentiary proceeding by contemporaneous video conference presented in open court. For purposes of this rule an evidentiary proceeding is one in which live oral testimony is taken.

(b) Contemporaneous Video Conference. Contemporaneous video conference means a conference among people at different places using an interactive technology that sends and receives video, voice/audio, and data signals so that two or more individuals or groups can communicate with each other contemporaneously using cameras, audio microphones, audio speakers, and computer monitors, and similar technology that meets the technical requirements established pursuant to subdivision (h).

(c) Written Notice Required for Trial Testimony. The party intending to submit testimony at trial by video conference must give written notice to the court at least 14 days prior to the proceeding or on such shorter notice to which the parties agree and for which the court finds good cause, provided that notice is otherwise consistent with any notice required by Rule 26. This notice must:

(1) include a description of the how the testimony will be taken and how the requirements of subdivision (f) of this rule will be satisfied;

(2) inform the court as to the other parties’ consent and agreement;

(3) include a signed waiver by the defendant of any claims as to waiver of confrontation rights at trial related to the physical presence of the witness providing video conference testimony.

(d) Express Waiver by Defendant on the Record. Before approving video-conference testimony, the court must address the defendant directly in open court and determine that the defendant understands that by agreeing to the use of video-teleconference testimony, the defendant expressly waives any claims as to that component of confrontation rights related to the physical presence of the witness providing video conference testimony. The court must determine that the defendant’s waiver and agreement are knowingly and voluntarily given. In the colloquy, among any other advisements or inquiries within the court’s discretion, the court must:

(1) Inquire as to whether the defendant had adequate time to discuss waiver and agreement with counsel—including the pros and cons of permitting testimony of a witness by video conference; and

(2) Advise the defendant that the waiver is the defendant’s sole personal decision; that the attorney cannot make that decision without the defendant’s express agreement; and that the waiver and agreement is final and binding, and once given and accepted by the court, may not be withdrawn without good cause as provided in subdivision (g).

(e) Party Responsible for Coordinating. The party seeking to introduce testimony by video conference is responsible for coordinating the technology for viewing into the courtroom, including any costs. However, to the extent available, and with consent of the court, court technologies may be used in the preparation or presentation of the testimony provided by the provisions of this rule.

(f) Manner of Taking Video Conference Testimony. The witness providing video conference testimony must be visible to the court, the defendant, counsels, jury, and others physically present in the courtroom.

(1) The witness appearing remotely must be located in a courtroom, government office, law office, or other suitable place conducive to the taking of testimony as approved by the court.

(2) A video conference technician is the only person allowed in the presence of the remote witness unless the court, in its discretion, determines that another person may be present. Any person present with the witness must be identified for the record, and issues associated with their presence addressed, prior to the taking of the testimony.

(3) The court and the witness must be able to see and hear each other simultaneously and communicate with each other during the proceeding.

(4) The defendant, counsel from both sides, and the witness must be able to see and hear each other simultaneously and communicate with each other during the proceeding.

(5) A defendant who is represented by counsel must be able to consult privately with defense counsel during the proceeding.

(6) Direct examination and cross-examination of the witness will proceed in the same manner as permitted at trial.

(7) A verbatim record of the testimony must be taken in the same manner as for other testimony.

(g) Withdrawal of Agreement and Waivers for Video Conference Testimony. A party may withdraw its agreement and waivers associated with video conference testimony only upon good cause shown, and as found by the court. In the determination of whether good cause is presented, the court may consider the following among other factors:

(1) The timing or juncture in the case at which the withdrawal is requested;

(2) Prejudice that would result to either party in consequence of the withdrawal, in terms of availability or unavailability of witnesses; undue hardship or inconvenience to witnesses; or additional costs that would be borne by either party in consequence of the withdrawal;

(3) Undue delay in case progress, or waste of judicial resources resulting from the withdrawal;

(4) Whether reasonable alternatives are available to secure the subject witness’s testimony other than by video conference;

(5) The adequacy of the court’s initial colloquy with the defendant regarding the defendant’s waiver and agreement, if raised in the motion for withdrawal.

(6) Whether the defendant was represented by counsel at time of waiver and agreement and the time of the request to withdraw, including defendant’s assistance of counsel pertaining to the waiver and agreement;

(7) Whether the defendant’s waiver and agreement to video testimony was given knowingly and voluntarily;

(8) The failure or inadequacy of the technology employed or to be employed, in the course of presentation of the witness’ testimony; and

(9) Any other material factor relevant to whether good cause is presented for withdrawal from the waiver and agreement for video testimony previously given to, and accepted by the court.

(h) Technical Standards. The Supreme Court by Administrative Order will establish technical standards that must be applied in all proceedings under this rule.