Reporter’s Notes

Rule 17 is added to make clear that a Family Court judge or magistrate in any action or proceeding under the Family Rules may require or permit a witness or party to testify or participate by telephone. The rule is based on former V.R.F.P. 4(g)(1), adopted for proceedings under Rule 4 in 1995 and now abrogated because replaced by the new rule. The purpose of the rule is to provide a uniform practice that meets constitutional standards in all actions or proceedings under the Family Rules. The clause, “except as otherwise provided by statute,” has been incorporated in Rules 17(a) and (b) to make clear that statutory provisions giving the court more or less discretion to permit telephonic participation or testimony control. See, e.g., 15B V.S.A. § 316(a), (f).

Rule 17(a)(1) permits the court to require a party or witness to testify or participate by telephone despite the objection of that party or witness only if two factors are present: The court must find that the testimony or participation is necessary and that physical presence is either impossible or substantially burdensome to the state. In addition, the standards of subdivision (b) must be met.

Under Rule 17(a)(2), on motion of a party or its own motion, the court may permit that party or a witness to participate or testify by telephone. The new rule departs from former V.R.F.P. 4(g)(1)(B) by omitting the onerous requirement of that rule that the court find that “exceptional circumstances require” allowance of the testimony. The new rule is also subject to the standards of subdivision (b), however, which as noted below requires other findings before permission may be granted.

Rule 17(b) makes clear that certain conditions must be met before the court may require or permit telephonic participation or testimony. The court must be satisfied as to the identity of the witness and the proper administration of the oath, whether by the court over the telephone or by an officer present with the witness; that adequate opportunity for examination and cross-examination is provided whether a party participates or a witness testifies by telephone; and that the technology is adequate to permit effective communication. In addition, the court must find that there will be a full and fair presentation of the evidence and that no party or witness will be substantially prejudiced by the procedure. Rule 17(b)(4) changes former V.R.F.P. 4(g)(1)(C)(iv) by explicitly providing that “full and fair presentation” includes “assessment of the credibility of any witness”-language intended to make clear that the court can insist on the presence of the witness whenever credibility may be in issue.

Together, these required findings and conditions are intended to assure that an order for telephone participation satisfies the standards of Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976), in which the Supreme Court held that due process in noncriminal proceedings requires the importance of the private interest affected by the challenged procedure, the risk of an erroneous deprivation under the challenged procedure, and the effectiveness of any additional procedural safeguards that might be employed to be weighed against the government’s functional, fiscal, and administrative interests.

In a number of cases, courts in other states have upheld required telephonic participation under the Mathews standard. See, e.g., In re Juvenile Appeal, 446 A.2d 808 (Conn. 1982) (putative father incarcerated in California could be required to testify and be cross-examined by speaker phone in Connecticut termination of parental rights hearing even though demeanor deemed to be of great importance due to hostility of opposing witness); State ex rel. Juvenile Dep’t of Lane County v. Stevens, 786 P.2d 1296 (Or. Ct. App.), review denied, 792 P.2d 104 (Or. 1990) (father required to testify by telephone in termination of parental rights proceeding); Casey v. O’Bannon, 536 F. Supp. 350 (E.D. Pa. 1982 ) (due process not violated by requirement of telephonic hearing for state public assistance applicants unable to travel to regional hearing sites); Babcock v. Employment Division, 696 P.2d 19 (Or. Ct. App. 1985) (unemployment compensation claimant was not denied due process by telephonic hearing where documentary evidence could be presented by mail in advance and opportunity for crossexamination was afforded); In re Plunkett, 788 P.2d 1090 (Wash. Ct. App. 1990) (prisoner not denied due process in disciplinary hearing where he sat with hearing officer and heard and could have cross-examined witnesses presented by telephone). But see Dey v. Edward G. Smith & Assocs., 719 P.2d 1206 (Idaho 1986) (due process violated where telephonic unemployment compensation hearing was interrupted by either deliberate or inadvertent disconnections). The cases are collected in Annot., 85 A.L.R.4th 476 (1991) (state courts); 88 id. 1094 (1991) (public welfare); 90 id. 532 (1991) (unemployment compensation); 9 A.L.R.5th 451 (1993) (prison discipline).

Telephone participation has been permitted in a number of cases over due process objections. See, e.g., Elson v. State, 633 P.2d 292 (Alaska Ct. App. 1981), aff’d on other grounds, 659 P.2d 1195 (Alaska 1983) (sentence appeal); People v. Williams, 333 N.W.2d 577 (Mich. Ct. App. 1983) (pretrial competency hearing); In re W.J.C., 369 N.W.2d 162 (Wis. Ct. App. 1985) (civil mental health commitment hearing). But see Archem, Inc. v. Simo, 549 N.E.2d 1054 (Ind. Ct. App. 1990) (telephone cross-examination of witness violated due process where testimony in chief had been presented through video deposition).

Rule 17 provides a framework within which the court may determine the appropriateness of requiring or permitting telephone participation on a case-by-case basis, consistent with Mathews and these decisions. The rule assumes that the party opposed to telephone participation has significant substantive interests and a strong procedural interest in a fair and full presentation of the evidence. Accordingly, the rule comes into play only when the state’s interests are strong as well. Under Rule 17(a)(1), a party may be required to accept the potentially less effective means of serving those interests only when the state cannot otherwise meet its obligation to resolve the dispute, or cannot do so without bearing substantial burdens. Under Rule 17(a)(2), a party may be permitted to impose those less effective means upon an opponent only when the state’s interests are affected by a slightly broader range of “exceptional circumstances.”

Rule 17(b) requires the court to balance the remaining Mathews factors–risk of deprivation and effectiveness of additional safeguards–in the circumstances of each case. Clauses (1)-(3) represent safeguards that will assure a full and fair hearing for each party without unduly burdening the state. Clause (4) in effect requires a finding that there is not a substantial risk of deprivation in the circumstances.

Reporter’s Notes-2019 Amendment

V. R.F.P. 17, providing for telephonic testimony and participation in the Family Division, is amended by deleting the present text of the rule and promulgating new subdivisions (a)-(d) providing that V.R.C.P. 43.1 applies in family division proceedings other than juvenile proceedings under V.R.F.P. 1, subject to specific provisions for certain statutory mental-health and guardianship proceedings.