Apart from two statutory mechanisms discussed below, there is no specified procedure for determining how or when in-court testimony may be presented in the form of a videotaped deposition or live, closed-circuit television in civil or criminal cases.86 The decision whether to permit televised testimony is within the discretion of the court.87 For example, a court may choose to reject a request to present live, televised testimony in favor of written deposition testimony.88
If a court decides to permit televised testimony, the court may impose conditions to avoid presenting the evidence in a manner which may create a danger of unfair prejudice. For example, when a plaintiff in a personal injury action is too ill to testify at trial, the court may require that, if not detrimental to the plaintiff’s health, the plaintiff be videotaped in street clothes, sitting in a chair (as opposed to a hospital bed), with any medical equipment not necessary for the plaintiff’s health not included in the picture.89
In any criminal case or hearing on delinquency, upon motion of the Deputy Attorney General prior to trial and with notice to the defense, the court may order all questioning of any witnesses under the age of twelve years to be videotaped at a location designated by the court. The Deputy Attorney General, the defendant’s attorney and any persons whose presence would contribute to the welfare and well-being of the witness must be present along with, if the court permits, the person necessary for operating the equipment. Only the attorneys or a defendant acting pro se may question the child. The court must permit the defendant to observe and hear the videotaping of the witness in person, but, upon motion by the State, the court may exclude the defendant, providing that the defendant is able to observe and hear the witness and communicate with his or her attorney. The court must insure that (1) the recording is both visual and oral and is recorded on film or videotape or by other electronic means; (2) the recording equipment was capable of making an accurate recording, the operator was competent to operate such equipment and the recording is accurate and not altered; (3) each voice on the recording is identified; and (4) each party is afforded an opportunity to view the recording before it is shown in the courtroom.90 If the court orders videotaped testimony of a witness, the witness may not be compelled to testify in court at the trial or upon any hearing for which the testimony was taken. At the trial or upon any hearing, a part or all of the videotaped deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence. As in the case of a standard transcribed deposition, if only a part of the videotaped deposition is offered in evidence by a party, an adverse party may require the proponent to offer all of it which is relevant to the part offered, and any party may offer other parts. Objections to deposition testimony or evidence or parts thereof and the grounds for the objection must be stated at the time of the taking of the deposition.91
In cases of crimes .involving sexual or physical abuse of a child victim less than eleven years old, a court may order that the testimony of the child victim be taken outside the courtroom and shown in the courtroom by means of a closed-circuit television if (1) the testimony is taken during the proceeding, and (2) the judge determines that testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.92 Only the prosecuting attorney, the attorney for the defendant and the judge may question the child.93 Only the prosecuting attorney, the attorney for the defendant, the operators of the closed-circuit television equipment and any person whose presence, in the opinion of the court, contributes to the well-being of the child, including a person who has dealt with the child in a therapeutic setting concerning the abuse, may be in the room with the child when the child testifies.94 During the child’s testimony by closed-circuit television, the judge and the defendant must remain in the courtroom.95 However, the judge and the defendant are allowed to communicate with persons in the room where the child is testifying by any appropriate electronic method.96 These provisions do not apply if the defendant is acting pro se.97
86. For rules relating to the use of deposition testimony at trial generally, see § 12:13.
87. See D.R.E. 611(a) (court has control over mode of presenting evidence); McLeod v. McLeod, C.A. No. N11C-03-111 MJB (Del. Super. Mar. 31, 2015) (permitting expert to testify at trial via videoconference); Brandin v. Deason, 941 A.2d 1020, 1026 n.21 (Del. Ch. 2007). Cf. In re Heller, 669 A.2d 25, 32 (Del. 1995) (trial court did not abuse its discretion in declining to permit character witnesses to testify by telephone).
88. See Cede & Co. v. Technicolor, Inc., C.A. Nos. 7129 & 8358, slip op. at 1-2, Allen, C. (Del. Ch. Sept. 6, 1989).
89. In re Asbestos Cases, C.A. No. 77C-ASB-2, Taylor, J. (Del. Super. Oct. 3, 1991). See also Cronin v. A.C, & S. Co., Inc., C.A. No. 82C-DE-91, Taylor, J. (Del. Super. June 25, 1987) (ORDER) (permitting use of videotaped deposition of since-deceased plaintiff where the picture was not unduly prejudicial and where there was no evidence that the plaintiff manipulated the surroundings to the detriment of the defendants).
90. 11 Del. C. § 3511(a).
91. 11 Del. C. § 3510.
92. 11 De1. C. § 3514(a)(1).
93. 11 Del. C. § 3514(a)(2).
94. 11 Del. C. § 3514(b)(1).
95. 11 Del. C. § 3514(b)(2).
96. 11 Del. C. § 3514(b)(3).
97. 11 Del. C. § 3514(c).
© 2010 David L. Finger