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August 27, 2020

Trial practices and procedures of the New York City Office of Administrative Trials and Hearings during the COVID-19 pandemic


In United States v. Gigante, 166 F.3d 75, the United States Court of Appeals, Second Circuit, held that "even in the context of criminal proceedings, 'upon a finding of exceptional circumstances' a witness may be permitted to testify via two-way closed-circuit television when this furthers the interest of justice." The court then opined that the "COVID-19 pandemic presents such exceptional circumstances."

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judges Astrid B. Gloade and Faye Lewis, respectively, denied applications filed by Respondents to hold in-person trials rather than their conducting trials through videoconferencing. Both ALJs explained that OATH has long recognized that testimony may be taken by videoconferencing when there is a compelling need to do so.

Both ALJs found that the COVID-19 pandemic establishes compelling circumstances for holding remote trials and explained that OATH's current practices and procedures provide for conducting all trials remotely except when an ALJ determines, upon motion, that there is a particularized, compelling need for an in-person trial that can be conducted in compliance with applicable health and safety guidelines.

These rulings by the ALJs reflected the Order OATH's Chief Administrative Law Judge Joni Kletter* issued "due to the emergency circumstances caused by the continuing COVID-19 outbreak in the City of New York" wherein Chief ALJ Kletter stated, in pertinent part, that "All trials before the OATH Trials Division will be conducted by Cisco Webex (or a similar system approved by the OATH Trials Division) which is widely available at no additional cost" under the circumstances.

Finding that Respondents, respectively, failed to demonstrate "a particularized, compelling need for in-person trials" the ALJs opined that videoconferencing of the OATH proceeding would permit parties to submit evidence electronically and conduct direct and cross-examination of witnesses, whose demeanor would be readily observable on the video platform by the ALJ conducting the trial or the hearing. Accordingly, the ALJs denied the applications submitted by Respondents to them, respectively, to conduct their hearings in the form of in-person trials.

* See OATH Chief Judge’s Order addressing adjudications by OATH’s Trials Division during the COVID-19 outbreak.



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