Robin Bresky and Randall Burks, The Law Offices of Robin Bresky, Boca Raton. (Photo: Courtesy Photo)

As the coronavirus (COVID-19) pandemic brings many public institutions to a halt, people will continue needing to seek justice. "The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay," Art. I, Section 21, Fla. Const. Florida's courts are exploring how to continue administering justice during a public health emergency.

On March 17, the Florida Supreme Court issued Administrative Order AOSC20-15, requiring the chief judge of each judicial circuit to direct the judges "to reschedule, postpone or cancel all non-essential and noncritical court proceedings and events unless the chief judge determines that such other specific proceedings or events can be effectively conducted remotely using telephonic or other electronic means available in the subject jurisdiction without the necessity of in-person court appearances."

That AOSC20-15 expanded upon AOSC20-13 of March 13, where the Florida Supreme Court issued emergency procedures to mitigate the effect of COVID-19 by temporarily suspending jury trials, grand jury proceedings, and jury selection proceedings. AOSC20-13 also allows the chief judge of each judicial circuit to "establish temporary procedures for the use, to the maximum extent feasible, of communication equipment for the conducting of proceedings by remote electronic means." Thus, "all rules of procedure, court orders, and opinions applicable to court proceedings that limit or prohibit the use of communication equipment for the conducting of proceedings by remote electronic means are suspended" from March 16 to March 27, 2020, or as provided by subsequent order. On March 24, the Supreme Court issued AOSC20-17, which extends most provisions of the previous three emergency orders through April 17 or as may subsequently be ordered. It also includes new suspensions or temporary modifications of certain provisions of certain rules of civil and criminal procedure and family law forms. The Supreme Court's emergency orders are available at www.FloridaSupremeCourt.org/Emergency along with related orders and messages from Florida's trial courts and courts of appeal.

One of the limitations of existing rules apparently suspended by the Supreme Court's AOSC20-13 is the portion of Fla. R. Jud. Admin. rule 2.530(d) which allows for telephonic testimony in evidentiary hearings, but only "if all parties consent or if permitted by another applicable rule of procedure." The apparent suspension of that restriction is contrary to the intent of 2.530(d) as originally adopted in 1985, when the Florida Supreme Court emphasized that telephonic testimony would be allowed only "with the consent of all the parties" and that "all parties have an absolute right to prohibit the taking of testimony of a witness by communication equipment." See The Florida Bar Re Rules of Judicial Administration, 462 So. 2d 444, 445 (Fla. 1985) (e.s.).

The Supreme Court was wise to insist on that absolute right because the finder of fact should be "fully able to observe the demeanor of the witness." See Rogers v. State, 40 So. 3d 888, 890 (Fla. 5th DCA 2010). The finder of fact must have an "opportunity to view the witnesses, to observe their demeanor and conduct on the witness stand. The appearance and reaction of the witnesses … and their general demeanor often substantially influence the degree of credibility accorded their testimony." See Powell v. Weger, 97 So. 2d 617, 619 (Fla. 1957). The presumption of correctness that appellate courts afford to a judge's or jury's findings is largely based on the "recognition of their opportunity to personally hear the witnesses and observe their demeanor in the act of testifying. The absence of this opportunity leaves a gap in the proper procedure of trial." See Bradford v. Found. & Marine Construction Co., 182 So. 2d 447, 449 (Fla. 2d DCA 1966).

"Moreover, it is the function of the trial judge, whose observations are firsthand, to determine the competency of a witness to testify," as in Kaelin v. State, 410 So. 2d 1355, 1356-57 (Fla. 4th DCA 1982). To determine competency to testify, the "trial judge [must have] the opportunity to view the witness, to observe manner, demeanor and presence of mind."

Thus, as Florida's judicial circuits issue temporary administrative orders regarding COVID-19, we hope they will not require conducting evidentiary hearings by telephone. As of this writing, in Palm Beach County the 15th Judicial Circuit (15thcircuit.com) will allow only essential functions at courthouses and, when possible, those proceedings will be held remotely using communication equipment. Nonessential proceedings will be suspended unless the matter may be effectively conducted remotely. In Broward County, the 17th Judicial Circuit (www.17th.flcourts.org) issued AO 2020-23-Temp, suspending normal operations through April 17 except for certain mission critical events and proceedings. In Miami-Dade County, the Eleventh Judicial Circuit (jud11.flcourts.org) facilities are closed to the public except for access required for emergency or mission critical court matters (such as, inter alia, emergency hearings, Baker Act proceedings, and domestic violence filings), and the chief judge announced on March 23 that the circuit is actively preparing to move to virtual court appearances which will include videoconferencing technology.

If a judge sets a telephonic evidentiary hearing, we recommend that trial counsel should move for a continuance or at least move to conduct the hearing via two-way video because a visual form of communication such as "closed circuit television is a permissible substitute for in-court testimony to permit the [finder of fact] to observe the demeanor of the witness in making its credibility determinations." See Cann v. State, 958 So. 2d 545, 548 (Fla. 4th DCA 2007). Even with live video, however, "visual problems can develop … It is incumbent upon the trial judge to monitor such problems and to halt the procedure if these problems threaten … the observation of the witness's demeanor." See Harrell v. State, 709 So. 2d 1364, 1372 (Fla. 1998). If video equipment is not available or the judge insists on receiving testimony by telephone, trial counsel should make an objection to preserve this issue for appellate review.

Normally, counsel would also have to ensure that a notary public is physically present with each witness to confirm the identity and administer the oath, see Rule 2.530(d)(3); but the Florida Supreme Court issued an emergency order on March 18, temporarily allowing notaries in Florida to administer an oath in Florida by "audio-video communication technology," provided the notary can positively identify the witness. If a witness is outside of Florida, the witness may also consent to being put on oath by a Florida notary via audio-video communication technology. To preserve the record for production of transcripts, it is best to have a court reporter present in each of the remote locations to clearly hear the witnesses and lawyers at each site.

In sum, the courts' emergency procedures should protect the litigants' ability to preserve a proper record for appeal. Consistent with Rule 2.530(d), we hope the courts will avoid receiving testimony by telephone unless all parties give informed consent or another applicable rule specifically allows it.

Robin Bresky and Randall Burks, of The Law Offices of Robin Bresky in Boca Raton, are appellate attorneys who handle appeals and litigation support in state and federal courts throughout Florida. The firm also provides estate planning, probate, and estate and trust administration. They can be reached at [email protected] or 561-994-6273.