Deported Applicant Allowed to Testify via iPhone
Alrighty, dear readers, your humble blogger has a pop quiz for you.
Why do we have live testimony? Why can’t all witnesses call/Skype/Facetime in to trial or a hearing?
Most of the WCABs venues have some form of wi-fi available, and almost everyone is sporting a smart phone nowadays.
We already saw in the Simmons case that an adjuster was allowed to appear via Skype and in the Alvarez case, an applicant was allowed to testify via Skype at his own trial after being deported to Mexico.
Recently, the WCAB allowed a deported illegal alien applicant to testify at his own trial via a 4-inch iPhone screen.
In the case of Vargas v. Becker Construction, a recent panel decision, the WCAB did not disturb the WCJ’s allowing of a deported applicant to testify by iPhone. Your humble blogger is agreeable to the fact that we should avoid “gotchya” litigation in workers’ compensation matters. However, if credibility is in question, a WCJ needs to be able to observe applicant testify. Additionally, the WCJ should be able to have certainty that no one in the room is feeding answers or responses to the witness from behind the iPhone transmitting the testimony.
Practically speaking, this might be addressed by having the injured worker sit in front of floor-to-ceiling mirrors so that the trier of fact can confirm no one else is in the room. But the small screen of the iPhone presents its own problem – how is one to observe credibility on so small a screen, especially if the rest of the hearing room is to observe it as well?
Personally, if the world finally lost its mind and entrusted your humble blogger with a spot on the bench, I would think a phone is too small a device upon which to observe a witness’s testimony (and determine credibility).
It is not clear what the proper course of action is – do the federal and state constitutions’ guarantees of due process (including the ability to present and cross-examine witnesses) outweigh California’s interest in providing benefits to workers that for one reason or another are not present in the country (or state)?
What do you think, dear readers? Would defendants be willing to have their adjusters and employer witnesses avoid being dragged in from out-of-state if it meant that an applicant could prosecute his or her case from across the border? As much as your humble blogger is a fan of technology, somehow testimony over a hand-held iPhone screen doesn’t seem to meet the standard of decorum and substance of an in-person trial.