[The following is based upon a student comment in the University of Chicago Law Review. Recall that Mr. Zeidenberg read a law review article, followed the arguments, and ended up on the wrong side of a suit for copyright infringement. The stakes are even higher when it comes to placing yourself or your witness in danger of spending time in a Chinese prison. So, even though the following poses a possible exception to the inability to depose Chinese witnesses, I’d think that it would still be best to go through the proper diplomatic channels by submitting a letter rogatory.]
A possible exception to the inability to depose Chinese witnesses is presented in Matthew Tokson’s University of Chicago Law Review comment, “Virtual Confrontation: Is Videoconference Testimony By An Unavailable Witness Constitutional?” 74 U. Chi. L. Rev. 1581. Videoconference can be further defined as two-way video testimony where both sides can see, hear, and converse with each other. As U.S. law currently stands, there is a split between the Circuit Courts as to the constitutionality of two-way video testimony. The 11th Circuit has found that two-way videoconference violates the Confrontation Clause of the 6th Amendment of the Constitution, and the 2nd Circuit has found that two-way videoconference technology does not violate the Confrontation Clause. Tokson argues that two-way videoconference testimony and depositions should be constitutional to further the public policy of providing “reliable and crucial evidence at trial” in cases where foreign witnesses are the key to such crucial evidence.
In lengthy footnote 162, Tokson argues that deposition and testimony by two-way videoconferencing of willing Chinese witnesses would be a way to get around the required letter rogatory because the foreign officer issuing the oath would be located in America rather than in China. I can’t help but think that this advice is very dangerous for Chinese witnesses. Tokson is correct that China has concerns about foreigners administering oaths in China. But, Tokson misses the more crucial point that China likely has very real concerns about Chinese citizens swearing oaths to foreigners. If a Chinese citizen was caught swearing an oath to an officer of the U.S. in China, I can’t help but think that the Chinese citizen would face a more severe punishment than the officer. Why should the result be any different with regards to the officer’s location?
Lesson: Best not to play with technicalities in a young legal system when the freedom of your witness is at stake.