Court has discretion to reject expert testifying remote
State v Lansing 262 N.J. 329
On leave granted, the court reviewed a Law Division order denying defendant’s motion to permit his expert to testify remotely at an evidentiary hearing in this criminal matter without the State’s consent and at his jury trial. The motion was based on the expert’s medical condition and desire to remain at home to care for his ill spouse.
At issue were the seemingly conflicting provisions of: (1) Rule 1:2-1(b), which authorizes the trial court to allow testimony in open court by contemporaneous transmission from a different location upon a showing of good cause and with appropriate safeguards; and (2) the October 27, 2022 Order of the Supreme Court which provides that evidentiary hearings in criminal matters shall proceed in person, unless all parties consent to proceed virtually, and that criminal jury trials shall proceed in person.
The court held that Rule 1:2-1(b) and the October 27, 2022 Order can be read harmoniously. While the October 27, 2022 Order establishes a general framework for how the many categories of proceedings heard in our courts will take place in light of the lessening need for the restrictions imposed in response to the COVID-19 emergency, the Order does not limit the authority granted to the trial courts in Rule 1:2-1(b) to permit the remote testimony of individual witnesses at proceedings that will otherwise take place in person.
The trial court, therefore, had the authority to hear motion by defendant to permit his expert to testify remotely in this criminal matter at an evidentiary hearing without the State’s consent and at his jury trial. The factors established in Pathri v. Kakarlamath, 462 N.J. Super. 208, 216 (App. Div. 2020), issued prior to both the adoption of Rule 1:2-1(b) and the issuance of the October 27, 2022 Order, are useful guidelines for deciding “good cause” and “appropriate safeguards” under the Rule.
The court also held that the trial court properly exercised its discretion when it denied defendant’s motion, in light of the technical and complicated nature of the expert’s expected testimony, the prevalent role video evidence will play at the hearing and trial, the difficulty the State would have in cross-examining defendant’s expert during remote testimony, the physical proximity of defendant’s expert to the courthouse and his ability to travel, defendant’s knowledge of the expert’s desire to testify remotely when he retained the expert, and the absence of medical evidence establishing that appropriate safeguards would be insufficient to protect the expert were he to testify in person. A-1592-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
APPROVED FOR PUBLICATION
October 3, 2024
APPELLATE DIVISION
TYRELL S. LANSING,
Defendant-Appellant.
________________________
Submitted August 27, 2024 – Decided October 3, 2024
Before Judges Gooden Brown, DeAlmeida and Vinci.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Morris County,
Indictment No. 21-12-0895.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Alison Perrone, Deputy Public Defender, of
counsel and on the brief).
Robert J. Carroll, Morris County Prosecutor, attorney
for respondent (Tiffany M. Russo, Assistant
Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
DeALMEIDA, J.A.D.Defendant Tyrell S. Lansing, on leave granted, appeals from the
September 18, 2023 order of the Law Division denying his motion to allow his
expert witness to testify remotely at an evidentiary hearing and at his jury trial.
We affirm.
I.
In 2021, a grand jury indicted defendant, charging him with: (1) first-
degree murder, N.J.S.A. 2C:11-3(a)(1); (2) second-degree possession of a
firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); (3) second-degree
possession of a handgun without a permit, N.J.S.A. 2C:39-5(b)(1); (4) second-
degree possession of a handgun by a certain person, N.J.S.A. 2C:39-7(b)(a);
and (5) fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-
3(f)(1).
The charges arise from a shooting death on a Morristown street in the
early morning hours of August 18, 2021. Investigators recovered video
footage from the morning of the shooting. During its case-in-chief, the State
intends to present a reconstruction of the shooting using the video footage to
identify defendant as the shooter. To create the reconstruction, the State
retained an expert in photogrammetry, a scientific field involving the use of
photography in surveying and mapping to measure the distance between
objects. In December 2022, the State's expert produced a report containing
2
A-1592-23visualizations and graphics he will testify constitute a reconstruction of the
shooting. In addition to photogrammetry, the State's expert used forensic
video analysis, bullet trajectory analysis, and other sciences in his report.
Defendant subsequently retained an expert who specializes in forensic
video analysis to review the report of the State's expert, issue a report, and
testify at an Olenowski hearing challenging the admissibility and reliability of
the State's expert's report, and at trial, if necessary.1 Defendant's expert spent
more than forty hours reviewing discovery. At the time the trial court issued
the order under appeal, he had not issued a report.
Before he was retained, defendant's expert informed defendant's counsel
that he would have to testify virtually at any evidentiary hearing or trial
because he has a heart condition, was recovering from surgery, and is the
primary caregiver for his seriously ill spouse. Accordingly, in August 2023,
defendant moved for leave to have his expert testify remotely.
In support of the motion, defendant submitted an affidavit from his
counsel stating that the expert suffers from atrial fibrillation and at the time of
the application was recovering from hernia surgery. According to the
affidavit, the expert is also the sole caregiver for his spouse, who has
1 State v. Olenowski, 253 N.J. 133 (2023) (establishing the standards for
admission of expert testimony at criminal and quasi-criminal trials).
3
A-1592-23undergone chemotherapy, multiple surgeries, and other treatments for cancer
and is limited in performing her daily life functions. The expert assists his
spouse with all of her daily activities, preparing a six-meal-per-day regimen to
meet her dietary needs, ensuring her physical safety, and dispensing her
medications. Due to his spouse's immunocompromised state, the expert will
not risk exposure to viruses, including COVID-19. The affidavit was not
accompanied by medical evidence detailing the expert's condition or that of his
spouse or offering the opinion that the expert should avoid appearing in public.
The expert lives in Dutchess County, New York, approximately an hour-and-a-
half drive from Morristown, where the hearing and trial would take place, and
is able to make that trip.
The State declined to consent to the expert's remote testimony and
opposed defendant's motion.
On September 18, 2023, the trial court issued a comprehensive written
decision denying the motion. The court first addressed the apparent tension
between Rule 1:2-1(b), which permits testimony by contemporaneous
transmission on a showing of good cause and with appropriate safeguards, and
the October 27, 2022 Order of the Supreme Court (2022 Order), which directs
that criminal jury trials shall proceed in person and that evidentiary hearings in
criminal matters shall proceed in person unless the parties consent to a virtual
4
A-1592-23proceeding. The trial court rejected the State's contention that in light of the
2022 Order, the court could not permit defendant's expert to testify remotely at
the evidentiary hearing without the State's consent and could not permit his
remote testimony at trial under any circumstances. The court concluded that
the 2022 Order, the last in a series of orders in which the Supreme Court
addressed the framework for court operations during the COVID-19
emergency, is "temporary in nature," unlike Rule 1:2-1(b). In addition, the
trial court reasoned that because defendant is seeking to have only one witness
testify remotely, and not to have the entire evidentiary hearing and trial
conducted remotely, the Rule, and not the 2022 Order, controls.
In its analysis of the "good cause" and "appropriate safeguards"
standards set forth in the Rule, the trial court applied the factors established in
Pathri v. Kakarlamath, 462 N.J. Super. 208, 216 (App. Div. 2020), which was
issued prior to both the adoption of Rule 1:2-1(b) and the issuance of the 2022
Order. The trial court found that the intended testimony of defendant's expert
concerned "the heart of the matter" in dispute between the parties: the
identification of defendant as the shooter. While defendant's expert had not
yet issued a report, the trial court found that, although not necessarily
disputing the reliability of the underlying science used by the State's expert,
defendant's expert will dispute the methods the State's expert used in analyzing
5
A-1592-23the evidence and creating the reconstruction. The trial court found that "the
anticipated testimony will be offered to address sharply disputed facts, that is,
whether the State's expert testimony is admissible at trial, and if so, the
reliability of that evidence." The court found that the anticipated testimony of
defendant's expert will be "significantly important to the anticipated
Olenowski hearing as well as to the trial itself if the court deems the expert
testimony admissible."
In addition, the trial court found that the anticipated testimony of
defendant's expert "is likely to be extensive, highly technical, and significantly
disputed . . . ."2 The court also found that the credibility of defendant's expert,
and an assessment of his knowledge, skill, experience, and training will be at
issue, both at the evidentiary hearing and at trial.
The court also found that "[i]t is reasonable to assume both experts will
be extensively cross-examined regarding their reports and opinions, and
allowing the defense expert to appear virtually may hinder the ability of the
2 As noted above, at the time that the trial court issued its decision,
defendant's expert had not issued a report. During the pendency of this appeal,
the expert issued a report. We granted defendant's motion to supplement the
record with the report, which we have reviewed. Although defendant argues
that the report highlights the non-technical character of the expert's intended
testimony, our review supports the trial court's characterization of the expert's
intended testimony as extensive, highly technical, and raising disputed issues.
6
A-1592-23State to zealously cross-examine the witness." In support of this finding, the
court noted that
although certain material can be forwarded to the
defense expert in advance, it is difficult to anticipate
every potential area of cross-examination prior to
hearing direct testimony. If certain material has not
been previously provided to the expert, cross-
examination may be limited. Further, uploading
certain material in advance may serve to alert the
witness of potential areas of cross-examination and
place the State at a disadvantage.
The court found that even though it, and not a jury, will be the factfinder
at the evidentiary hearing, the State will be at a disadvantage because of the
highly technical nature of the expected testimony. Presentation of remote
testimony to the jury at trial would, the court found, make the difficult task of
assessing the expert's credibility considerably more problematic.
The trial court found that defendant's expert could make the trip to
Morristown to testify with minimal financial burden to the Public Defender's
Office. In addition, the court found requiring the expert to appear in person
would not delay the hearing or trial, given his proximity to the courthouse.
The court recognized that denial of defendant's motion may require him
to retain a new expert. However, it found that the expert's desire not to appear
in person was readily foreseeable, as the expert was aware of his medical
condition and the need to care for his spouse at the time he was retained.
7
A-1592-23Although the court stated that it appeared the expert did not inform defendant's
counsel of his desire to testify remotely until after he was retained, defendant's
merits brief states that the expert notified defendant's counsel before he was
retained. The court concluded that any delay in retaining a new expert in the
event that the motion is denied will be attributable to the defense.
Finally, the court found that, although the concerns raised by defendant's
expert were legitimate, accommodations, such as masking, clear screens, and
social distancing, could lessen the risk of contracting an infection while
testifying in person.3
A September 18, 2023 order memorialized the trial court's decision.
On October 27, 2023, we denied defendant's motion for leave to appeal
the September 18, 2023 order.
On January 23, 2024, the Supreme Court granted defendant's motion for
leave to appeal, and summarily remanded the matter for our consideration.
Defendant raises the following argument.
THIS COURT SHOULD REVERSE THE TRIAL
COURT'S DECISION DENYING DEFENDANT'S
MOTION TO PERMIT HIS EXPERT WITNESS TO
TESTIFY REMOTELY.
3 The court did not address steps the expert could take to arrange for
professional care for his spouse during his live testimony.
8
A-1592-23II.
A trial judge has broad discretion in controlling the courtroom and court
proceedings. State v. Pinkston, 233 N.J. 495, 511 (2018); State v. Jones, 232
N.J. 308, 311 (2018). "[W]e apply the abuse of discretion standard when
examining the trial court's exercise of that control." Jones, 232 N.J. at 311.
A trial court abuses its discretion "by relying on an impermissible basis,
by relying upon irrelevant or inappropriate factors, by failing to consider all
relevant factors, or by making a clear error in judgment." State v. S.N., 231
N.J. 497, 500 (2018); see also State v. Chavies, 247 N.J. 245, 257 (2021).
"[A] functional approach to abuse of discretion examines whether there are
good reasons for an appellate court to defer to the particular decision at issue."
State v. R.Y., 242 N.J. 48, 65 (2020) (quoting Flagg v. Essex Cnty. Prosecutor,
171 N.J 561, 571 (2002)) (alteration in original). "When examining a trial
court's exercise of discretionary authority, we reverse only when the exercise
of discretion was 'manifestly unjust' under the circumstances." Newark
Morning Ledger Co. v. N.J. Sports & Exposition Auth., 423 N.J. Super. 140,
174 (App. Div. 2011) (quoting Union Cnty. Improvement Auth. v. Artaki,
LLC, 392 N.J. Super. 141, 149 (App. Div. 2007)).
The advent of the COVID-19 emergency in the State in March 2020
necessitated adjustments to the longstanding practice of almost all proceedings
9
A-1592-23taking place in-person in our courts. "Experience with the various video
conferencing and live streaming applications employed during that emergency
laid the groundwork for rule adoptions providing for the use of these
technologies in appropriate circumstances." Pressler & Verniero, Current N.J.
Court Rules, cmt. 1 on R. 1:2-1 (2025). One such rule, adopted effective
September 1, 2021, was Rule 1:2-1(b). That rule provides:
Contemporaneous Transmission of Testimony. Upon
application in advance of appearance, unless otherwise
provided by statute, the court may permit testimony in
open court by contemporaneous transmission from a
different location for good cause and with appropriate
safeguards.
[R. 1:2-1(b).]
During the COVID-19 emergency, the Supreme Court also issued a
number of orders concerning the conduct of court proceedings. On November
18, 2021, the Court issued an order "to provide a framework for transition
from almost all in-person proceedings to a future that uses technology to
provide expanded options for access, participation, timeliness, and justice.
That Order stipulated proceedings that must continue in person and those that
could or would proceed virtually." Pressler & Verniero, Current N.J. Court
Rules, cmt. 1 on R. 1:2-1 (2025).
With the COVID-19 emergency lessening in severity, the Court issued
the 2022 Order. In that Order, the Court stated,
10
A-1592-23[t]his Order updates the framework for those court
events that are to be conducted in person and those
that in general will proceed in a virtual format.
Informed by experience, it establishes a more
sustainable approach to court operations in order to
optimize access, participation, and the timely
administration of justice.
. . . .
[W]ith expanded vaccination and treatment options,
public health authorities agree that the virus poses less
of a threat. In light of those changed circumstances,
the Court has concluded all COVID-19 restrictions in
court locations while maintaining the option for
people to wear masks at their choice. In addition,
judges also routinely exercise discretion to permit
individuals to participate virtually as necessary for
health and other reasons.
[2022 Order, preamble (emphasis added).]
With respect to criminal matters, the Court ordered, in relevant part, that
Criminal jury trials shall continue to proceed in
1. person.
2. The following matters will generally proceed in
person but may proceed virtually with the consent of
all parties; consent of a party will not be required if
that party is absent and unreachable:
a. CRIMINAL: . . . evidentiary hearings . . . .
[2022 Order, paragraphs 1-2 (a).]
We reject the State's argument that paragraphs 1-2(a) of the 2022 Order
preclude the trial court from allowing defendant's expert to testify remotely at
11
A-1592-23the evidentiary hearing without the State's consent and at trial in any
circumstances. The Supreme Court has the authority to "make rules governing
the administration of all courts in the State and, subject to law, the practice and
procedure in all such courts." N.J. Const. art. VI, § 2, ¶ 3. The Court's "[r]ule-
making authority may be exercised by the promulgation of formal rules to be
included in the published Rules of Court . . . . It may also be exercised in the
form of general directives or specific orders." In re Yaccarino, 101 N.J. 342,
351 (1985) (citation omitted).
Both Rule 1:2-1(b) and the 2022 Order were promulgated under the
Supreme Court's constitutional authority and address the use of remote
testimony in criminal proceedings. Our comparison of these authorities
revealed no conflict in their provisions. The 2022 Order provides a general
framework for how the many categories of proceedings heard in our courts
generally will take place. Criminal jury trials will take place in person, as will
evidentiary hearing in criminal matters, unless both parties consent to a virtual
hearing. Issued after Rule 1:2-1(b) was adopted, the 2022 Order does not
mention the rule, limit its provisions, or contradict its terms. To the contrary,
in its preamble, the 2022 Order recognizes that "judges also routinely exercise
discretion to permit individuals to participate virtually as necessary for health
and other reasons." This is a reference to the authority that judges exercise
12
A-1592-23under Rule 1:2-1(b). As we understand the 2022 Order, it establishes that
criminal jury trials and evidentiary hearings (in the absence of consent by all
parties) will proceed in person, but the trial court retains its authority to permit
remote testimony by witnesses at those proceedings where "good cause" is
shown and "appropriate safeguards" are imposed.
Defendant did not request the entire evidentiary hearing or his jury trial
be held remotely. Those proceedings will take place in person. He requested
only that his expert be permitted to testify remotely at those proceedings due to
the medical conditions of the expert and his spouse. The trial court was,
therefore, authorized to entertain defendant's request under Rule 1:2-1(b).4
Rule 1:2-1(b) was adopted after our courts experienced more than a year
of remote proceedings necessitated by the COVID-19 emergency. We issued
our opinion in Pathri, on which the trial court relied when applying the Rule,
in January 2020, before the COVID-19 emergency reached New Jersey. We
acknowledge that when we issued Pathri, we did not have the benefit of the
experience that informed the Court when it adopted Rule 1:2-1(b). The factors
set forth in Pathri, however, were based in part on a federal rule of civil
4 We see no support in the record for the trial court's characterization of the
2022 Order as temporary. While paragraph 10 of the Order indicates that it
"remains subject to ongoing review and potential future refinement," nothing
in the Order indicates that it expires after a stated period.
13
A-1592-23procedure which mirrors Rule 1:2-1(b) and are useful guidelines for deciding
"good cause" and "appropriate safeguards" under the Rule.
In Pathri, one of the parties had moved out of the country after filing a
complaint for divorce. 462 N.J. Super. at 212. Shortly before the scheduled
trial date, he moved to appear and testify remotely via contemporaneous video
transmission because he was unable to obtain a visa to return to the United
States. Ibid. The trial court denied the motion. Ibid.
On appeal, in the absence of a court rule or Supreme Court Order
addressing virtual testimony, we held that "we see no reason why a family
judge could not permit testimony by contemporaneous video transmission in
appropriate circumstances." Id. at 214. Relying in part on a federal rule of
civil procedure that permitted virtual testimony "[f]or good cause in
compelling circumstances and with appropriate safeguards," id. at 215 (citing
Fed. R. Civ. P. 43(a)), we established seven factors to be considered by a trial
court when deciding whether to permit a witness to testify remotely. We held
that a judge should consider: (1) "the witness' importance to the proceeding;"
(2) "the severity of the factual dispute to which the witness will testify;" (3)
"whether the factfinder is a judge or a jury;" (4) "the cost of requiring the
witness' physical appearance in court versus the cost of transmitting the
witness' testimony in some other form;" (5) "the delay caused by insisting on
14
A-1592-23the witness' physical appearance in court versus the speed and convenience of
allowing the transmission in some other manner;" (6) "whether the witness'
inability to be present in court at the time of trial was foreseeable or
preventable;" and (7) "the witness' difficulty in appearing in person." Id. at
216.
We explained that the logic of the first factor is that "[t]he greater the
witness' importance in the dispute, the heavier should be the burden of
excusing in-person testimony. But, if the witness is merely conveying some
information of relatively minor importance, or if the witness is a custodian of
records, or the like, the burden ought not be onerous." Ibid.
The second factor "dovetail[s]" with the first factor. Ibid. Where a
witness intends to testify with respect to a dispute "that goes to the heart of the
matter," in-person testimony is favored. Ibid. This is particularly true where
the credibility of the witness will be a significant factor and the "factfinder is
better served in its truth-finding function by having testimony in person rather
than by contemporaneous transmission." Id. at 217-18.
The identity of the factfinder, the third factor, is material to determining
whether to permit remote testimony. "In many instances a judge would [more]
likely overcome whatever barrier to ascertaining the witness' credibility and
15
A-1592-23demeanor is created by contemporaneous video transmission than would a jury
of laypersons not accustomed to weighing testimony in any form." Id. at 218.
The fourth factor weighs the costs associated with producing the witness
in person against the costs associated with providing remote testimony. "That
would not only include the travel and lodging expenses necessarily incurred
but other costs, such as the impact on a party's income caused by a loss of time
from work." Ibid. "Judges should consider whether the cost of insisting on in-
person testimony is simply not worth whatever the impact on the factfinder's
assessment of the witness or, for that matter, what it is the parties are fighting
over." Id. at 218-19. "The delay in the case's disposition is also a factor." Id.
at 219.
With respect to foreseeability, we observed that "[a] sudden business trip
or family member's illness may require a party to travel abroad at or around
the time of a trial . . . ." Ibid. Thus, "a judge may inquire as to the
circumstances that led to that trip and determine whether the witness was faced
with the unavoidable consequence of being outside the jurisdiction at the time
of trial." Ibid. "In making the determination whether to permit testimony by
contemporaneous video transmission, a judge has a right to know what steps
[the moving party] took in advance . . . to avoid the need for the relief now
sought . . . and assess the bona fides of that party's actions." Ibid. We noted
16
A-1592-23that "[a] witness' health may also cause the type of difficulty that would inure
in favor of" remote testimony. Id. at 219 n.7.
With respect to appropriate conditions that may be imposed, we noted
that
[t]he judge, for example, may require a particular size
monitor or multiple monitors in the courtroom for the
transmission, as well as insist on a particular framing
of what the video transmits (in other words, whether
the image is not just of the witness' face but also
enough of his body so that the judge could better
appreciate his overall demeanor). The judge has the
right to expect a clear video and audio, and that the
remote witness testify from a place suitable to the
solemnity of the proceeding. Copies of documents
that the parties expect to show the witness should be
forwarded to that location in advance.
[Id. at 220-21.]
We have carefully reviewed the record and conclude that the trial court
properly considered each of the Pathri factors and made findings with respect
to each factor that are supported by the record. The technical and complicated
nature of the expert's expected testimony, the prevalent role video evidence
will play when determining whether the State's expert's opinion is admissible
and, if so, credible, the difficulty the State would have in cross-examining
defendant's expert, the physical proximity of defendant's expert to the
courthouse, defendant's knowledge of the expert's desire to testify remotely
when he retained the expert, and the absence of medical evidence requiring
17
A-1592-23remote testimony, all support the conclusion that the trial court did not
mistakenly exercise its discretion when denying defendant's motion.
Affirmed.
18
A-1592-23
