Can You Swear in a Witness Over the Telephone?

Telephone depositions are a common occurrence for many court reporters - and are perhaps more common than these reporters would like. Some of the problems associated with telephone depositions - not being able to hear the witness, garbled speech, poor phone connection, several participants who all sound alike and don't identify themselves - make an already challenging assignment all the more difficult.

The fact that 32 states do not have any rules or regulations offering guidance on telephone depositions only compounds the problem. Yet the primary question isn't whether the reporter can report a telephonic deposition. Rather the more critical question is can the court reporter swear in the witness over the telephone if the witness is not in the reporter's presence?

To answer this question, JCR surveyed the current presidents of the 50 affiliated state associations and the District of Columbia. Keep in mind this article is based on the responses we received from the survey. We did not check each state's regulations. If you believe our information is incorrect, please let us know.

State Practice

Generally, for those states with rules or guidance on telephonic depositions, the reporter must be in the presence of the witness in order to swear in the witness. If the reporter is not with the witness, a notary must be in his or her presence to administer the oath.

Texas rule 199.1(b) on "Depositions by telephone or other remote electronic means" reads: "A party may take an oral deposition by telephone or other remote electronic means if the party gives reasonable prior written notice of intent to do so. For the purposes of these rules, an oral deposition taken by telephone or other remote electronic means is considered as having been taken in the district and at the place where the witness is located when answering the questions. The officer taking the deposition may be located with the party noticing the deposition instead of with the witness if the witness is placed under oath by a person who is present with the witness and authorized to administer oaths in that jurisdiction."

An advisory opinion from the state attorney general confirms this for Wyoming reporters in that the reporter must be in the room to swear in the witness or the reporter must have someone else do it. Washington's rules are even more specific in that the reporter and the witness must be in the same place. Illinois follows Washington's example, as the state Supreme Court amended rule 206 in December 1999 to allow for depositions by telephone, videoconference or other remote electronic means. As a result, the deponent must be in the presence of the officer administering the oath and taking the deposition.

In Florida, based on an opinion from the attorney general, you can't swear in a witness over the phone, except for police officers. Florida Supreme Court Rule 1.310(c) offers further clarification: "The amendment requires the deponent to be sworn by a person authorized to administer oaths in the deponent's location and who is present with the deponent."

A few states, though, permit greater latitude. Alaska's court rules governing telephone depositions allow reporters to administer the oath over the phone. In Missouri, Russell Welder explains that you "cannot swear a witness over the telephone unless the attorneys agree on the record that you can. Of course, if the reporter and the witness are in the same room and the attorneys are on the phone, that's acceptable."

A similar practice occurs in South Carolina. "The court reporter is supposed to be with the deponent," says Deborah Dusseljee, RPR. "However, the attorneys can stipulate to a waiver of that. And the attorneys do use that waiver." A slightly different method is used in New Mexico. Melissa Correa, RPR, says, "If the attorneys present stipulate that we may swear the person in (on the record), somebody has to be present with the deponent to verify the identity of the person being deposed."

But what about in those states with no rules on administering an oath by telephone? "In those areas where there are no rules or CSRs are commissioned to swear in witnesses, you probably should follow the notarial rules," explains Diane Dorwart, RPR, chair of NCRA's Committee on Professional Ethics. The National Notary Association has no guidelines regarding the swearing in of a witness over the telephone, but its Code of Ethics requires that the oath be administered in the presence of the witness. Also, NCRA Public Advisory Opinion 36 states that if there are no applicable laws, rules, regulations or case law addressing the reporter's obligations, the reporter can report the deposition of a witness over the telephone so long as that witness has been sworn in by a duly authorized oathgiver in the presence of the witness.

Ethical Questions

Do practices such as those in Missouri and South Carolina in which the attorneys stipulate to a waiver regarding the oath violate NCRA's Code of Ethics? No. NCRA members are required to conform to the accepted practices set forth in Advisory Opinions to the extent that such practices are consistent with their own applicable state and local laws, rules and regulations. However, in those states that do not have rules or regulations on this topic and the attorneys wish to waive the notarial requirement and stipulate that the oath given by the reporter, not in the presence of the witness, has the same force and effect as if administered in the presence of the witness, the reporter would be in violation if he or she agrees to the stipulation.

NCRA Director Laurel Eiler, RMR, has come across this problem several times in Tennessee, as attorneys have requested that she swear in a witness in another state and have stipulated that she can. Her reply: "Respectfully, that's not within your purview. For example, you could stipulate that I don't have to have a driver's license to drive my car to the deposition. But I don't think the policeman who stops me and arrests me will be very impressed with your stipulation."

"After that, they usually reply, 'Oh,'" she says, "and not much else." She offers three solutions to the problem: 1. Get a reporter to take the deposition with the witness. 2. Get an authorized oathgiver to swear in the witness. 3. When the witness is not in the reporter's presence and there is no notary in the witness's presence, if local rules allow, suggest that all parties, including the witness, stipulate on the record that the testimony is being given as if under oath. And if none of those options suffice? "We don't do the deposition," she says.

Nonverbals

Another common problem involves attorneys taking part in a deposition by telephone requesting that the reporter include in the transcript nonverbal communications, such as an attorney passing a note to a witness or gestures. NCRA Public Advisory Opinion 31 provides some guidance, touching upon three key questions. Can the reporter:

1. Include his or her personal observations in the record?
2. Record times during the proceeding?
3. Inform or not inform counsel appearing by telephone that certain people are entering or leaving the deposition room?

In brief, NCRA's Committee on Professional Ethics believes that a reporter's description on the official record of nonverbal communications, events or gestures violates Provisions 1, 2 and 3 of the Code of Ethics. Recording times during proceedings and reporting the presence, arrival or departure of persons at a proceeding may be done if it is consistent with state or local law or local custom and usage. Otherwise, the reporter should refrain from these practices as well in order to safeguard the reporter's role as an impartial "officer of the court."

As the Opinion states, "The role of the court reporter in reporting a proceeding is to preserve the spoken word on the record and not to function as a factual witness for one party to the proceeding. When a reporter is intentionally placed in the position of being a factual witness at the direction of counsel for one party to the proceeding, that reporter may be viewed as an advocate for one party over the others. The reporter thus loses the impartiality mandated by Provision 1."

One unusual situation where the reporter might want to include nonverbal communications or events in the record is where the witness is deaf or hard-of-hearing and the questions are being propounded through a sign language interpreter. Since interpreters frequently only work for 20-minute intervals, there is usually more than one, and it might be wise to clarify on the record prior to the commencement of the proceedings if the parties wish to have the change of interpreters noted in the record each time the change occurs. In a similar situation, the witness may be deaf or hard-of-hearing but may be able to voice the answers. The reporters should request that a statement be made on the record indicating this is occurring.

When working in the freelance field vs. those reporters who are employed by an administrative body that dictates what rules they must follow, the reporter must remain an impartial party in all proceedings. To allow one party to mandate the reporter's role in a proceeding diminishes the credibility of the record the reporter is making as well as the professional credibility of the reporter.

Does your state have any laws, court rules or guidelines regarding telephone depositions?