Commentary: Standards for taking telephone testimony at trial.

• Author: Finerty, John

Byline: John Finerty

Securing a witness's attendance at trial is usually routine when the witness is also a party. Getting a third party witness to testify, however, can be more challenging. Attorneys typically have subpoena power, but subpoenas are of limited use when the witnesses are out of state or out of the country.

Telephone testimony may be an option in some cases. The recent case of Hamid v. Gonzales, Case Nos. 04-1600 and 04-2013 (7th Cir., Aug. 2, 2005), challenged a ruling from an immigration judge that refused to allow expert testimony by telephone. Although immigration cases are unique in that they operate under rules different from those that apply in state or federal court, this case makes an important point about telephone testimony.

Case Background

The petitioner in Hamid v. Gonzales was a Palestinian resident of Syria who faced deportation proceedings here as a result of pleading guilty to fraud and theft charges. He sought asylum under the United Nation's Convention Against Torture, arguing he would be persecuted and tortured if returned to Syria. The immigration judge (IJ) and the Board of Immigration Appeals (BIA) that heard his case denied his request.

Hamid petitioned the U.S. Court of Appeals for the Seventh Circuit seeking to reverse the BIA on the basis that the hearing procedures denied him due process because the judge refused to allow an expert witness to testify by telephone from London. In support of his petition, Hamid submitted to the IJ affidavits from a professor of Middle Eastern history at Tel Aviv University and from the president of the Syrian Human Rights Committee in London.

The affidavits discussed the general political situation in Syria, that government's routine use of torture, and the military service requirement that, presumably, Hamid would have been subject to. Hamid asked that the IJ allow his expert in London to testify by telephone at his immigration hearing. The IJ denied the request without explanation.

The Seventh Circuit affirmed the IJ's decision, holding that denying an expert the opportunity to offer oral testimony, in addition to a written submission, does not deny a petitioner due process in an immigration appeal. In some cases, however, refusing to permit live testimony may deprive an asylum applicant of a meaningful opportunity to be heard.

For example, the IJ in Kerciku v. INS, 314 F.3d 913 (7th Cir. 2003), denied live testimony and cut off much of the applicant's own...