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Point of Law

Francisco Ed. Lim

Internet ‘no good’ for video testimony?

Francisco Ed. Lim

November 28, 2017

Our Rules of Court on Evidence does not contain any provision sanctioning video testimony. Understandably so because when the Rules of Court was promulgated in 1964, the technology was not yet in place.

Things have drastically changed, though. We now live in a digital world where almost everything can be done electronically or through the internet.
The question posed to me is whether the court will allow witnesses in a criminal case to testify through video testimony.

This is not the first time that the question has cropped up. In the Amapatuan trial arising from the Maguindanao massacre in 2009, the private prosecutors asked the trial judge to allow some prosecution witnesses to testify via video conferencing. The defense lawyer for the Ampatuans objected, arguing that there was nothing in the rules that allowed the presentation of witnesses through video conference.

Video conferencing has been recognized in other jurisdictions as a valid procedure for a witness to testify. For example, the Canadian Criminal Code allows a witness to testify via means of technology under certain conditions. In the United States, the Supreme Court ruled that a sexual abuse victim may testify via one way closed-circuit television (CCTV) without violating the accused’s right to confront the witness pursuant to Sixth Amendment of the US Constitution (Maryland v Craig, 497 US. 836 [1990]).

Video conference has also been recognized as a valid means in international courts, particularly those dealing with crimes against humanity and related crimes. In the International Criminal Tribunal for the Former Yugoslavia (ICTY), the court allowed witnesses to testify via video conference upon finding that their inability to go to the place of trial was due to medical reasons or fear that the witnesses might be prosecuted if they go to the trial itself. In the International Criminal Tribunal for Rwanda (ICTR), the court allowed a witness to testify via video conference due to illness or because of travel restrictions imposed by the witness’ employer.

Not known to many, our Supreme Court, in 2000, has taken the same direction when it approved the Rule on Examination of a Child Witness, which allows a child who is a victim or witness to testify via live-link television testimony.

Subsequently, or in 2001, the Supreme Court took the matter farther when it promulgated the Rules on Electronic Evidence (REE). The REE expanded the coverage of electronic testimony to civil cases. A year or so thereafter, the Supreme Court further widened the coverage of the REE to criminal cases. In particular, Section 1 of Rule 10 of the REE provides that “[a]fter summarily hearing the parties…, the court may authorize the presentation of testimonial evidence by electronic means. Before so authorizing, the court shall determine the necessity for such presentation and prescribe terms and conditions as may be necessary under the circumstance, including the protection of the rights of the parties and witnesses concerned.

Undoubtedly, we have rules in place that allow testimony via video conferencing, videotelephony or similar means. The rules give our courts broad discretion to prescribe terms and conditions to safeguard the rights of the parties, especially the rights of the accused under the Constitution.

The real challenge on the ground is infrastructure. For example, there may be issues on the reliability of the internet system. Equally important is whether the court has the internet connection, technical personnel, software and similar equipment to receive testimony of witnesses via video conferencing.

In short, to paraphrase Jack Ma’s language, is the infrastructure of our country and court system still “no good” to allow video testimony as authorized by our rules on evidence?

You be the judge.