Report No. 185

"Protocol for Satellite Transmissions:

1. Two-way audio/visual transmissions.- Two-way audio and visual transmissions shall be provided for each witness.

2. Color transmissions. Transmissions both to and from the place where the witness testifies shall be in color.

3. Persons present with witnesses. Spectators and counsel will not be allowed in the room where the witness testifies. Present with the witness shall be a courtroom deputy clerk of the United District Court from where the transmission originates, a court reporter, if necessary, and any technical staff needed for the satellite transmission.

The courtroom deputy clerk will administer the oath to the witness, hand him any documents which the witness is asked to refer to during his/her testimony and perform such other duties and functions as a courtroom deputy clerk would normally perform.

4. Documents to be shown to the witness.- The party calling the witness shall furnish the Document Depository at least seven (7) working days prior to the transmission a list of all documents to which the witness will be asked in direct examination. The Document Depository will provide the courtroom deputy clerk at the district where the witness will appear copy of all such documents with sufficient time in advance for these to be available when the testimony is scheduled to commence.

Any documents needed for cross-examination or redirect which are not available at the site of the testimony when cross-examination commences shall be shown to the witness via satellite or copy thereof transmitted by telecopier.

5. Telephone and telecopier.- There shall be available in the courtroom, for coordinating any necessary technologic aspects or any other matters that may arise during the satellite transmission, the following telephone number: (809) 766- 5448. The party calling the witness shall provide a headset/headphones compatible with the existing telephone equipment. A telecopier capable of using the same telephone number shall also be placed in the courtroom by the party calling the witness.

There shall also be available in the room where the witness is to give his testimony a telephone with a headset/headphones compatible with the equipment and a telecopier. It shall be the responsibility of the party calling the witness to provide this equipment, to ensure it is in place and in working condition in time for the transmission and to pay all expenses related to its use.

The party calling the witness shall advise the Court of the number(s) of the telephone and telecopier (if different) to be used in the district where the witness is to appear. This shall be done no later than fifteen (15) calendar days before the satellite transmission is scheduled to commence.

6. Additional Equipment. In addition to the technical equipment needed for the transmission to be carried out, the party calling the witness shall also provide the following, at its own expense.

a. Courtroom in Puerto Rico.

1. In addition to the existing monitors, an IN monitor and an OUT monitor from and to the location where the witness is present.

2. A screen to be placed on the witness stand where the witness would sit.

3. In addition to the existing cameras and monitors, one remote control camera to be placed on the witness stand focusing on the questioning attorney and another focusing on the presiding judge, each one with its corresponding monitor.

4. Switcher(s) for the additional cameras.

b. Room where witness is present.

1. Monitor for the witness to see the pertinent person(s), documents and/or exhibits in the courtroom.

2. Adequate sound for the witness to hear any matters originating in Puerto Rico including headphones if necessary.

7. Coordinating technical matters in this district.- Any coordination on technical matters needed for the courtroom in Puerto Rico shall be made through Mr. Jaime Sotomayor, this Court's audio and video technician.

8. Coordinating with other district(s).- The party calling the witness shall advise this Court, at least fifteen (15) calendar days prior to commencing each satellite transmission, the address in each district where the transmission will be originated and the intended date(s) for each transmission.

It shall be the responsibility of the party calling the witness to coordinate in those other district(s) all necessary personnel and logistical matters to allow for a timely and smooth transmission. This includes securing the attendance of the courtroom deputy clerk, court reporter if necessary and ensuring all equipment is in place and in working condition prior to the transmission.

9. Safeguarding transmission.- No person shall make or allow to be made any recording/videotape or copy of a recording/videotape of the satellite transmission except by written order of this Court in which case such recording/videotape made shall be the sole property of the Court. Necessary measures (encoding or scrambling) shall be taken by the party calling the witness to ensure that persons other than those in the courtroom are not able to watch, hear, or otherwise monitor the satellite transmission. Implementation of effective prophylactic measures to ensure this are a condition for allowing the satellite transmissions.

10. Cost.- The entire cost of the procedures authorized herein, the necessary technical equipment as well as all logistical arrangements attendant to these procedures shall be borne by the party calling the witness. This includes any expenses associated with necessary delays or adjournments and those warranted to complete cross-examination; provided, however, that any abuse of crossexamination, including repetitive or cumulative questioning, or any unnecessary prolonging of the testimony by repetitive, long or frivolous objections will result in allocation of costs due to delays to the party responsible.

11. Cancellation of testimony.- In the event of cancellation of the testimony of any witness, the cost associated therewith shall be borne by the party calling the witness. If the cancellation was avoidable or resulted from matters within the cancelling party's control, the calling party shall bear the cost. Should the witness not be available to testify for a valid reason, the party having control over the witness shall advise the party calling the witness immediately or else the cancelling party will bear all costs associated with the cancellation.

12. Subpoena and option to testify in Puerto Rico.- Any party seeking to compel 408 the testimony of any witness pursuant to the procedures set forth herein shall serve upon the witness a subpoena at least fifteen (15) calendar days in advance of the intended transmission.

A witness subpoenaed to testify by way of a satellite transmission may elect to testify instead at trial in Puerto Rico in which case all expenses related to such attendance shall be borne by the party calling the witness. This option, however, must be notified to the calling party at least seven (7) calendar days in advance of the date for the transmission in which case the calling party may either decline the option or the party having control over the witness will bear the cost of any expenses related to the aborted satellite transmission if these could not be avoided, e.g., pre-production costs.

13. Recalling of witnesses.- A witness who testifies via satellite will not be allowed to subsequently appear in person at trial. His/her subsequent testimony will be either by way of satellite transmission or deposition. In the event it is by way of satellite transmission, the calling party shall bear all associated expenses."

The above judgment convicting the accused was affirmed by the Supreme Court of Appeal of Florida State in David Harel v. State of Florida, No 90114 on 23.4.98 (709, So. 2d. 1364 = 23 Fla. L. Weekly 2236) (Harding J delivered the judgment and Kogan CJ, Overton, Shaw, Wells and Anstead JJ concurred). The State Supreme Court held that the defendant's right to physically confront his accusers under the Confrontation Clause is not absolute and there are certain exceptions where a defendant's right to face-to-face confrontation will give way to conductors of public policy on the necessities of the case.

Exceptions are only permitted when the reliability is otherwise assured, and reliability can be exhibited through the other three elements of confrontation, the oath, cross-examination, and observation of witnesses' demeanour. For the virtual picture via image on a screen in the Court for the purposes of the Confrontation Clause, in order to qualify as an exception, the proposed procedure must (1) be justified, on a case-specific-finding based on important interests, public policies, or necessities of the cases, and (2) must satisfy the other three elements of confrontation, that is, the oath, cross-examination, and observation of the witnesses' demeanour.

Here, the witnesses were living beyond the subpoena power of the Court and there was no way to compel their appearance in Court, one witness was in poor health and could not make the trip to US and both witnesses were absolutely essential to the case as they were the victims of the crime. Depositions to perpetuate testimony are analogous to satellite procedure to provide live testimony subject to Confrontation Clauses, and the proper approach for determining when the satellite procedure is appropriate is similar to that made under the rules providing circumstances under which and the procedure by which a party can take a deposition to perpetuate testimony for those witnesses that are found to be unavailable.

For the party who, in a criminal case, moves for satellite testimony, it is incumbent to (1) verify or support by affidavits of credible persons that a prospective witness resides beyond the Court's territorial jurisdiction or is unable to attend or is prevented from attending a trial or hearing, and (2) establish that witness's testimony is material and necessary to prevent a failure of justice. Upon such a showing, the trial Judge shall allow the satellite procedure that affords live, contemporaneous opportunity to cross-334 examine the witness and allows the jury to observe the witness's demeanour during exchange.

In case the parties are in conflict as to whether satellite proceeding or a deposition to perpetuate testimony is more appropriate, the decision shall be left open to the discretion of the trial Judge based on whichever procedure the Judge feels will be better to serve justice. Procedure in presenting testimony via satellite satisfied the safeguards of the Confrontation Clause of oath, cross-examination, and observation of witness's demeanour and thus, witness's testimony was sufficiently reliable; out-of-country witnesses were placed under oath by State Court client, defence had an opportunity to cross-examine the witnesses, jury could observe the witnesses as they testified, witnesses could see the jury, and witnesses were subject to possible penalty for perjury.

Oath required by the Confrontation Clause is only effective if the witness can be subjected to prosecution for perjury upon making a knowingly false statement. To ensure that the possibility of perjury is not an empty threat for witnesses that testify via satellite from outside US, in order for the oath requirement of Confrontation Clause to be met, it must be established that there exists an extradition treaty between the witness's country and the US and that such treaty permits extradition for the crime of perjury.

Extradition treaty exists between US and Argentina for perjury, and this, testimony of Argentina witnesses via satellite, satisfies oath requirement of Confrontation Clause. Due to possible audio and visual problems that can develop with satellite transmission of witnesses testimony, the trial Judge must monitor such problems and halt the procedure if problems threaten the reliability of the cross-examination or the observation of the witnesses' demeanour requirements of the Confrontation Clause.

For the above reasons, the Supreme Court of Florida dismissed the appeal and confirmed the conviction. Harding J concluded, stating that courts 'cannot sit idling by, in a cocoon of yester years':

"Our Court is mindful of the importance of today's decision. Yet, we are also mindful that our society, and indeed the world, is in the midst of the Information Age. Computers are the norm in American households and businesses; an infinite amount of information is available at our fingertips through the Internet; and satellite technology allows us to travel the world without ever leaving our living rooms.

The legal profession has also benefited from these technological innovations. Legal research that once took hours or days is now available in seconds through computer and Internet databases. Clients can reach their attorneys anywhere in the world through the use of cellular and video innovations. The list goes on and on.

Indeed, our very own court takes pride in the recent technological advancements that have been made. Oral arguments before the Court are broadcast live via satellite throughout the state. These same arguments can be viewed online, along with the parties' briefs. The Florida Supreme Court Website has received worldwide acclaim for opening up the courthouse doors to the general public. All of these steps provide greater access to the judicial system, which in turn increases public trust and awareness.

That being said, it becomes quite clear that the courtrooms of this State cannot sit idly by, in a cocoon of yesteryear, while society and technology race towards the next millennium. Fortunately, the courtrooms of this State have not been idle, nor are they speeding at a reckless pace. Recent changes in the courtroom have included the use of audiotape stenographers as well as video transmission of first appearances, arraignments, and appellate oral arguments, just to name a few.

We recognize that there are generally costs associated with change. Nevertheless, technological changes in the courtroom cannot come at the expense of the basic individual rights and freedoms secured by our constitutions. We are confident that the procedure approved today, when properly administered, will advance both the access to and the efficiency of the justice system, without compromising the expectation of the safeguards that are secured to criminal defendants.

Our nation's Constitution is a living document that has stood the test of time and change. This point is exemplified by the fact that our Constitution is still viable toda.- some two hundred-plus years after our country's birth. There was no way the founders of this nation could have foreseen the innovations that would take place throughout our country's lifetim.- changes that, up to this point, have included advances in communication, electricity, train, airplane, and automobile transportation, and even space exploration. Nor can we predict today the changes yet to come. But we can say with certainty that our Constitution, as well as this great nation, can endure any future changes while at the same time ensuring that individual rights and liberties will be upheld.

Accordingly, for the reasons stated above, we answer the certified question in the negative and approve the result that was reached by the Third District Court of Appeal."

Video conferencing in UK (Family Division) Practice Direction: (2002 (1) W.L.R. 406)

In the United Kingdom, in the Family Division, procedure for video conferencing has been laid down by means of a Practice Direction issued by the Senior District Judge, Mr. Gerald Angel, with the approval of Justice Dame Elizabeth Butler-Sloss P. It reads as follows:

"1. Video conferencing facilities are available in the Royal Courts of Justice ("RCJ") in Court 38. In proceedings pending in the Principal Registry of the Family Division which are to be heard in the RCJ or in First Avenue House and in which it is desired to use these facilities, the following procedure should be observed.

2. (a) Directions for the video conferencing hearing should be given by an order made in the proceedings. The order may be made without attendance, provided all parties consent.

(b) The order should specify, in general terms, the purpose of the hearing and give the date, time, place and duration of the hearing and the place or country with which the link is to be effected.

(c) Availability of the facilities must be ascertained prior to the order being made fixing the appointment.

This can be done by communicating with those responsible for managing the video conference facility in the RCJ, ("the video managers.- Roger Little and Norman Muller, telephone 020 7947 6581; fax 020 7947 6613). If the order is made at a hearing, the court associate or clerk will be able to make the telephone call to ascertain an available date. For orders to be made without attendance, the parties must ascertain the availability of the facilities prior to submitting the application. (d) In every case, the parties must communicate with the video managers as soon as possible after the order has been made to ensure that all the necessary arrangements for the telephone link to be established are settled well in advance of the appointed date.

3. Where in any case the main hearing may be delayed because video conferencing facilities at the RCJ are not conveniently available, consideration should be given to using the video conferencing facilities at the Bar Council or the Law Society. If facilities away from the RCJ are to be used, it will be the responsibility of the party applying for the video conferencing hearing to make all the necessary arrangements with the video conferencing provider.

4. Issued with the approval of Dame Elizabeth Butler-Sloss P."

We may also refer to the UK Criminal Procedure and Investigations Act, 1996 which deals with Television links and video recordings. (see http://www.hmso.gov.uk/acts/acts1996/96025--n.htm)

So far as making a provision in the Evidence Act in regard to videoconferencing, we are of the view that the time is not ripe enough to introduce any provision in this behalf. A reading of the provision introduced in other countries shows that first there must be facilities in the trial Courts for videoconferencing and they must be fool-proof. Further, considerable expense is involved in providing these facilities.

So far as contempt law is concerned, we have seen that Australia and New Zealand have a bilateral arrangement which is reflected in the Rules. The judgment from USA shows that so far as perjury is concerned, there must be extradition treaties with the States in which the witness is resident. In Singapore, we find, the facilities are restricted to proceedings other than criminal proceedings.

In the light of these problems, we are of the view that at an appropriate point of time, we can bring a separate law relating to Television links as in Singapore or New Zealand, with such modifications as may be necessary.

Video recordings:

Sometimes, evidence is sought to be produced by a statement recorded by video. Here several safeguards are necessary to be taken to see that there is no tampering of the video-record. Further, as it is a prerecorded video-cassette, it may not be useful to produce such evidence in a criminal trial because the accused has a right to see that prosecution evidence is recorded in his presence. (In the case of a live-video-recording by tele-conference, this right may remain adequately safeguarded.)

Section 30 of the Prevention of Terrorism Act, 2002 makes special provision for protection of witnesses.

In UK, Section 23(3) of the Criminal Justice Act, 1988 make some provision in this behalf. This is applicable to a person who 'does not give evidence through fear or because he is kept out of the way'.

We do not think it necessary to make any separate provision in regard to pre-recorded video-cassette evidence inasmuch as the existing provisions can take care of the correctness or veracity of such evidence.

In the 69th Report (see Chapter 24) after some discussion, it was pointed out in para 24.4 that the section is not happily worded (as stated by Woodroffe and Amir Ali) in so far as it implies a mandatory rule that the contents of documents can never be proved by oral evidence. In certain circumstances, the contents of documents may be proved by oral evidence, when such evidence of their contents is admissible as secondary evidence (see Section 63(5))(See also sections 91 and 92). However, it was said that it is a minor point, not calling for amendment.

We would, however, think that this is not a minor point and we propose Section 59 be amended as follows:

"59. Proof of facts by oral evidence

(1) Subject to the provisions of sub-section (2), all facts may be proved by oral evidence.

(2) Save as otherwise expressly provided under this Act, the contents of documents or electronic records shall not be proved by oral evidence."

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