Arrington v. DaimlerChrysler Corp.

Alice Robie Resnick, J.,

dissenting.

{¶ 42} There is nothing in the law that even comes close to providing support, sanction, or justification for the trial court’s massive order in this case, which *550requires over 400 workers’ compensation claimants suffering from asbestos-related occupational diseases to try their claims by prerecorded videotape. There is no cogent argument for requiring an objecting litigant to demonstrate actual prejudice in order to defend centuries of trial practice against the obvious misuse of a modern procedural rule that is designed for cautious application in particular cases. And while perhaps reflective in its ingenuity, there is nothing circumspect about an order that resolves a case-management problem by compelling an entire class of workers’ compensation claimants to proceed en masse to trial by videotape upon the justification that their claims share the generic right-to-participate issue that qualifies every R.C. 4123.512 appeal to common pleas court.

{¶ 43} “[T]he courtroom in Anglo-American jurisprudence is more than a location with seats for a judge, jury, witnesses, defendant, prosecutor, defense counsel and public observers; the setting that the courtroom provides is itself an important element in the constitutional conception of trial, contributing a dignity essential to ‘the integrity of the trial’ process. Craig v. Harney [1947], 331 U.S. 367, 377 [67 S.Ct. 1249, 91 L.Ed. 1546]. As Mr. Justice Black said, in another context: ‘The very purpose of a court system is to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures.’ ” Estes v. Texas (1965), 381 U.S. 532, 561, 85 S.Ct. 1628, 14 L.Ed.2d 543 (Warren, C.J., concurring), quoting Cox v. Louisiana (1965), 379 U.S. 559, 583, 85 S.Ct. 476,13 L.Ed.2d 487 (Black, J., dissenting).

{¶ 44} “ ‘Trial by jury,’ in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and empanelled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence. * * *

{¶ 45} “Lord Hale, in his History of the Common Law, c. 12, ‘touching trial by jury,’ says: ‘Another excellency of this trial is this, that the judge is always present at the time of the evidence given in it.’ ” Capital Traction Co. v. Hof (1899), 174 U.S. 1, 13-14, 19 S.Ct. 580, 43 L.Ed. 873.

{¶ 46} To the same effect, this court has recognized for over 150 years that “a jury, properly speaking, is an appendage of a court, a tribunal auxiliary to the administration of justice in a court, that a presiding law tribunal is implied, and that the conjunction of the two is the peculiar and valuable feature of the jury trial * * *.” Lamb v. Lane (1854), 4 Ohio St. 167, 179.

*551{¶ 47} This constellation of operative relationships that inheres in the centralized live trial belies any suggestion that trial by videotape is simply a new and more efficient technique for presenting evidence. The jury trial in American jurisprudence “is an extremely complex network of communications which, in large measure, depend for their existence on the very simultaneity in time and space which videotape is designed to transcend. Thus, the introduction of videotape into the trial proceeding disturbs a great many interdependent communications relationships — relationships which have evolved from social values, historical traditions and constitutional protections. These social values, historical traditions and constitutional protections define parameters for compatibility for the use of videotape in the judicial process.” Doret, Trial by Videotape — Can Justice Be Seen to Be Done? (1974), 47 Temple L.Q. 228, 267.

{¶ 48} This is not to suggest that the use of videotape trials should be summarily rejected or that Civ.R. 40 or Sup.R. 13(B) is facially invalid. But the nature and extent of authority bestowed upon the trial judge under these rules must be defined with respect to the essential elements of the trial process, which include the facilitation of accurate fact-finding, the elicitation of truth, the exposure of falsehood, and the preservation of public confidence in our judicial system. “Thus, in determining the intent behind Civ.R. 40 and C.P.Sup.R. 12(B) [now Sup.R. 13(B) ], the state and federal Constitutions are an indication as to the permissible procedure to be used by a trial court.” Fantozzi v. Sandusky Cement Prods. Co. (1992), 64 Ohio St.3d 601, 608-609, 597 N.E.2d 474. Other-. wise, the perceived economy of modern technology may soon come to displace our sense of justice.

{¶ 49} The majority attempts to assuage such fears by cautioning that “in the great majority of cases, even those not presenting discrete factual or legal issues, the preferred practice remains to permit all parties — and particularly plaintiffs— the right to testify live before a jury when the party so requests.” But the majority’s decision and analysis belie its own caveat. Aside from the magnitude of the order in this case, the majority has set the stage for a series of successive countywide decrees of similar nature and scope and thus for a statewide practice that requires all workers’ compensation claimants who seek to participate in the fund for an asbestos-related occupational disease to try their cases in common pleas court by way of prerecorded videotape. And in doing so, the majority conducts an entirely uncritical, one-sided analysis in which appellant’s position is reduced to the right of a prisoner to be present at his or her civil trial in “three dimensions” and only the perceived advantages of trial by videotape are considered.

{¶ 50} The majority’s analysis begins with the statement that the jury right in this case is statutory, not constitutional, “and therefore may be constrained.” *552But nothing in the statute purports to constrain that right. R.C. 4123.512 simply confers a right to trial by jury without qualification. Nor do the rules portend any variation of their standards of applicability depending on the source of a jury right.

{¶ 51} The majority then relies on Bustillo v. Hilliard (C.A.7, 2001), 16 Fed.Appx. 494, 2001 WL 894274, for the proposition that the right to trial by jury does not include “an unqualified right to participate in a trial live rather than by videotape” or “entitle Arrington to give his testimony in three dimensions.” In so doing, the majority reduces all the essential elements of a jury trial to the conditional right of a prisoner to be physically present at the trial of his or her civil claims.

{¶ 52} The appellant in Bustillo was a federal prisoner. At the time of his trial against the former manager of the control unit at the federal prison in Marion, Illinois, Bustillo was housed in a federal prison in Florence, Colorado, “which replaced Marion as the place where the nation’s most violent and incorrigible inmates are confined.” He was “serving life without possibility of parole for murder, attempted murder, and additional violent crimes committed while in less-secure prisons.” He was required to remain in prison and participate in his civil trial in East St. Louis by videoconferencing because “[t]he chances of escape and mayhem were minimized by ensuring that he stayed put during trial.” Id. at 495, 2001 WL 894274 at *1.

{¶ 53} As the court explained, “Nothing in the Constitution or the federal rules gives a prisoner entitlement to that extra dimension [of physical presence], if for good reasons the district judge concludes that trial can be conducted without it.” Id. James Arrington, however, is not a prisoner. He has not forfeited any rights or protections under the law by virtue of being incarcerated, because he is not incarcerated. And there is no concern that he might escape, because he is not confined.

{¶ 54} More important, the trial in Bustillo was conducted live, not by prerecorded videotape. It was held in a courtroom before a jury and in the presence of a presiding judge, all of whom saw and heard the evidence as it was presented. Only Bustillo and some of his witnesses were required to participate by video link. Thus, the court explained, “Bustillo participated in the trial; he testified, presented evidence, examined adverse witnesses, looked each juror in the eye, and so on. Jurors saw him (and he, them) in two dimensions rather than three.” Id. at 495, 2001 WL 894274 at *1.

{¶ 55} Arrington is claiming not that he was denied a right to be physically present at a live trial but that he was denied a live trial in the first place. By its inconsistent uses of the term “live” to describe both Bustillo’s physical presence at trial and the nature of the historical jury trial, the majority manages to *553conflate two distinct aspects of the right with correspondingly distinct considerations.

{¶ 56} The majority continues nonetheless to find that “Arrington’s complaints of prejudice from being confined to two dimensions are speculative. Given that his refusal to record evidence led to the dismissal of the case before the presentation of any evidence, his claim of prejudice is purely theoretical.”

{¶ 57} But the whole point of the rules is to ensure that a videotape trial is ordered only “in an appropriate case.” Sup.R. 13(B)(2). Accordingly, a determination as to whether the parties will be prejudiced by a videotape trial must be made before the order is entered. It is reversible error for a trial court to order a prerecorded videotape trial without first determining that there are compelling reasons for doing so “and that no cognizable prejudice will be suffered by the parties.” Fantozzi, supra, 64 Ohio St.3d at 609, 597 N.E.2d 474. Thus, Arrington’s claim of prejudice cannot be found to be “speculative” or “theoretical” merely because “his refusal to record evidence led to the dismissal of the case before the presentation of any evidence.”

{¶ 58} The most revealing aspect of the majority’s analysis, however, lies in its attempt to find some support for the trial court’s wholesale application of the rules to an entire class of workers’ compensation cases. According to the majority, “[t]he trial court’s decision to conduct trial by video is unusual in its scope, but it is not beyond the pale of orders by other courts in other cases or beyond the boundaries of our prior case law.” Relying on Fantozzi and State v. Moffitt (1975), 133 Vt. 366, 340 A.2d 39, the majority concludes that “[t]he trial court’s order here was thus not one without support in the law.” Nothing could be further from the truth.

{¶ 59} Fantozzi involved an order to videotape a single trial. The case did in fact proceed to trial by videotape, which lasted several days, and the jury returned a verdict in favor of the plaintiff. We vacated the judgment and remanded the cause for a new trial, finding that the trial court had failed to reflect in a journal entry that it considered the factors set forth in former C.P.Sup.R. 12(B)(2). Id. at 610, 597 N.E.2d 474. Thus, we never decided in Fantozzi that even that single case was “an appropriate case” for videotaping.

{¶ 60} We did, however, discuss the considerations that must precede a videotape-trial order:

{¶ 61} “[Former] C.P.Sup.R. 12(B)(2) provides in pertinent part: ‘In determining whether to order a videotape trial, the trial judge, after consultation "with counsel, shall consider the costs involved, the nature of the action and the nature and amount of testimony.’ (Emphasis added.) The word ‘shall’ is mandatory rather than directory and requires the court to consider the factors after consultation with counsel. This interpretation of the rule is proper in light of the *554state and federal constitutional significance which we recognize is placed upon the right to a trial by jury.

{¶ 62} “Accordingly, it is reversible error for a trial court to order a prerecorded videotape trial over the objection of all parties in an action unless the court reflects in a journal entry that it has, pursuant to C.P.Sup.R. 12(B), consulted with the attorneys for the parties and considered the costs involved, the nature of the action and the nature and amount of testimony, that these factors taken together indicate a compelling reason to conduct the trial by videotape and that no cognizable prejudice will be suffered by the parties. * * * The reviewing court should also consider any other factors that may have induced the trial court to order videotaping, with the underlying premise being that the trial court, under such circumstances, should be extremely cautious in entering such an order.” (Citations omitted.) Id. at 609, 597 N.E.2d 474.

{¶ 63} Fantozzi therefore requires a case-specific finding of necessity while providing safeguards against the indiscriminate use of the rules. How the majority can conclude that a sweeping decision to mandate prerecorded videotape trials in over 400 asbestos-related workers’ compensation cases lies within the boundaries of our prior case law is beyond comprehension.

{¶ 64} The majority’s reliance on Moffitt, 133 Vt. 366, 340 A.2d 39, is equally unavailing. Not only did Moffitt involve the videotaping of just one driving-under-the-influence trial, but the parties in that case, along with their counsel, stipulated in advance of trial that the testimony of all witnesses would be presented to the jury by videotape. It was only after the cause was tried by videotape and the defendant was convicted that he decided on appeal to challenge the procedure as inherently unfair. The court ultimately concluded that “there is nothing inherently prejudicial in videotaping witness testimony for trial purposes where, as here, the defendant has consented thereto and the dictates of proper courtroom procedure have been followed.” (Emphasis added.) Id. at 370, 340 A.2d 39.

{¶ 65} The majority has therefore been unable to identify any decision from any appellate court in which even a single case was found to be an appropriate case for ordering a prerecorded videotape trial over the objection of a party.

{¶ 66} The majority also relies on certain law review articles to support its broad interpretation of the rules. In so doing, however, the majority presents an incomplete picture of the literature. It touts what some commentators perceive to be the advantages of videotaped evidence, but ignores a host of important questions and valid concerns that have been raised in regard to its large-scale use. It makes only terse references to these concerns as Arrington’s “complaints” or “claims of prejudice,” each time dismissing them out of hand as “speculative,” “theoretical,” “generic,” or “amorphous.”

*555{¶ 67} For example, the majority mentions some of the more favorable results of certain studies that were conducted to gauge the reactions of jurors to actual videotrials that were held in Ohio and California in 1973. In so doing, the majority relies on an article by Diane M. Hartmus, Videotrials (1996), 23 Ohio N.L.Rev. 1, which sets forth the jurors’ impressions of videotaped evidence as reported by the researchers who conducted the studies but not the researchers’ concerns about the potential implications of its extended use. Id. at 9-10, 340 A.2d 39.

{¶ 68} In their own article, however, the researchers were careful to point out that while the jurors’ responses were generally favorable to videotaped evidence, some important questions remained unanswered. They explained, in particular, that “[p]erhaps the most fundamental issue is the differential impact, if any, of live versus videotaped trial testimony upon jury decision making. Time and again in the jurors’ responses there appears a more or less explicit belief that there is a difference in the outcome of a trial decisionmaking process produced by live versus taped testimony.” Bermant, Chappell, Crockett, Jacoubovitch, and McGuire, Juror Responses to Prerecorded Videotape Trial Presentations in California and Ohio (1975), 26 Hastings L.J. 975, 994.

{¶ 69} Accordingly, two authors of Juror Responses explained in a companion article:

{¶ 70} “Underlying the position set forth by the proponents of PRVTT [prerecorded videotape trials] rests an unexamined assumption, namely that the use of the medium represents a simple substitution in the means of transmitting information. For example, Guy Kornblum [Videotape in Civil Cases (1972), 24 Hastings L.J. 9, 15] states that ‘[videotaped material is merely a new method of presenting evidence.’ In this view, the essential features of evidence are assumed to remain invariant under changes in the means by which the evidence is presented. But this uncritical assumption about the direct substitutability of media is generally untenable. Whether it holds for PRVTT, or even for less complete uses of videotape, must be demonstrated.” Bermant and Jacoubovitch, Fish Out of Water: A Brief Overview of Social and Psychological Concerns About Videotaped Trials (1975), 26 Hastings L.J. 999,1000-1001.

{¶ 71} One problem arises from the fact that the video camera is innately selective. “Because the camera becomes the juror’s eye on the participants, it locks the juror’s perspective in important ways: the jurors are no longer free to look around the setting of the trial and determine their own priorities for assessing what is relevant and what is not. Videotaping is, therefore, an unavoidably inscoping, manipulative translation of the live confrontational situation.” Id. at 1001.

*556{¶ 72} Another problem lies in the fact that some of the touted benefits of prerecorded videotape trials may actually contain their greatest disadvantages. Or stated differently, some of the supposed weaknesses of live trials may well embody their greatest strengths. For example, the majority contends that the editing out of improper questions and inadmissible testimony constitutes a primary advantage of videotrials over live trials. Yet this is hardly a foregone conclusion.

{¶ 73} “Objections and the striking of inadmissible evidence engender an appreciation by jury and spectators that not all information is legitimate for purposes of legal fact-finding, and that the judge presides to insure that the rules of fair play are followed. The sustaining of an objection, the reprimand of a witness or an attorney by the judge, and in general all the procedural work that PRVTT proponents would put backstage, instruct the laymen on the differences between everyday resolution of disputes and the formal procedures by which trial proceedings are governed. The metamessage — ‘Not everything goes here — we .have a set of rules that prescribe proper conduct and they will be followed,’ — may be lost in a seamlessly edited videotape shown in a courtroom from which the judge, attorneys, plaintiff, defendant, and witnesses are absent. Observation of confrontations stemming from errors may be an important instructional device for those unfamiliar with the judicial process.

{¶ 74} “A similar point may apply in the case of interruptions and delays of various sorts that would be eliminated or minimized by PRVTT. While aggravating and wasteful of precious court time, they nevertheless carry the metamessage: ‘We will not cut our procedures short for the sake of efficiency or expediency. This is the most deliberate process in our social structure, and we will not betray it — we have time to be fair.’ Of course this may be only one of many implicit messages in protracted proceedings. But the value of this metamessage and the cost of forgoing it for a presentation that is pre-timed to the split second have yet to be ascertained.” Id. at 1008-1009.

{¶ 75} The majority also lists as one of the perceived advantages to videotaped evidence the “reduction in the potential for mistrial, including unintentional judicial influence on the jury.” ¶ 35. The problem, however, is that videotrials do not just remove the potential for improper judicial influence on the jury — they remove the judge. As a result, they remove “one of the most immediate disincentives to committing perjury, evading questions, or otherwise not cooperating with the examiner.” Trial by Videotape, supra, 47 Temple L.Q. at 251. And since the presence of the judge during questioning “contributes to the veracity of the testimony given by witnesses, loss of judicial presence may sacrifice one of the fundamentals of the judicial process.” Id. at 263.

*557{¶ 76} Nor can the value of live testimony in assessing credibility be doubted. For centuries, the personal appearance of witnesses before a factfinder has been deemed a cornerstone of our judicial process and indispensable to the ascertainment of truth. See Natl. Labor Relations Bd. v. Dinion Coil Co. (C.A.2, 1952), 201 F.2d 484, 487-490. “Demeanor is of the utmost importance in the determination of the credibility of a witness. The innumerable telltale indications which fall from a witness during the course of his examination are often much more of an indication to judge or jury of his credibility and the reliability of his evidence than is the literal meaning of his words.” Govt. of Virgin Islands v. Aquino (C.A.3, 1967), 378 F.2d 540, 548.

{¶ 77} As explained by Judge Learned Hand, “the carriage, behavior, bearing, manner and appearance of a witness — in short, his ‘demeanor’ — is a part of the evidence. The words used are by no means all that we rely on in making up our minds about the truth of a question that arises in our ordinary affairs, and it is abundantly settled that a jury is as little confined to them as we are. They may, and indeed they should, take into consideration the whole nexus of sense impressions which they get from a witness. This we have again and again declared, and have rested our affirmance of findings of fact of a judge, or of a jury, on the hypothesis that this part of the evidence may have turned the scale.” Dyer v. MacDougall (C.A.2, 1952), 201 F.2d 265, 268-269. See, also, Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 461 N.E.2d 1273 (“The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony”).

{¶ 78} In fact, one of the most ardent supporters of increased court-related use of videotape has been compelled to admit that “videoconferencing is not a neutral medium and that it potentially might manipulate how jurors perceive the demean- or of remote witnesses.” Roth, Lais,sez-Faire Videoconferencing: Remote Witness Testimony and Adversarial Truth (2000), 48 U.C.L.A. L.Rev. 185, 188.

{¶ 79} These are all valid concerns, and they cannot be ignored or dismissed on the basis of the cautious optimism that has been generated by the preliminary results of a few limited studies conducted over 30 years ago. Like the case law and the rules themselves, the literature suggests that we proceed with extreme caution in sanctioning the increased use of prerecorded videotape trials, especially when they are compulsory. There is nothing in the law, or in our experience, that supports this sudden leap to mass videotrials.

{¶ 80} For these reasons, I respectfully dissent.

Pfeifer and O’Donnell, JJ., concur in the foregoing dissenting opinion.