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Friday, April 27, 2012

Hamprecht v Hamprecht, 2012 WL 1367534 (M.D.Fla.) [Germany] [Testimony By Video]

In Hamprecht v Hamprecht, 2012 WL 1367534 (M.D.Fla.) Marian Hamprecht filed a petition which alleged that his minor child was being unlawfully retained in the Middle District of Florida by his wife and the child's mother, Stephanie Hamprecht, who had restricted their son's ability to return to his habitual residence of Germany. He moved under Fed.R.Civ.P. 43(a) to be permitted to testify via video conference from Germany for the May 4th hearing. According to the petitioner's declaration attached to his motion, he was in fear of returning  to the United States because his life was threatened by an individual claiming that "his group" was hired to kill him. He claimed that he alerted the police, fled his home in Florida, hid out of sight,  and returned to Germany with his two oldest children four days later.  He also claimed that the additional expense of international travel to attend the hearing was unnecessary and would require petitioner to leave his two oldest children in Germany. He asserted that his request would not prejudice  respondent, and proposed that if respondent's counsel wishes to show petitioner a  document during cross examination, counsel may provide that document to the witness  prior to his testimony. Petitioner also proposed that he would be represented  by U.S. counsel at the hearing and by German counsel in Germany, ensuring that proceedings would run smoothly and that the Court's orders  adhered to.   Respondent, characterized petitioner's motion as nothing more than an improper attempt to avoid subjecting himself to a proper in-person cross examination by respondent's counsel and a proper credibility evaluation by the Court,  and called petitioner's fear baseless. Respondent supported her opposition by attaching the "full" police report which included the following relevant  facts: (1) the alleged incident occurred at approximately 8:30 AM but the petitioner did not call the police until 6:48 PM; (2) petitioner was unable to describe the subject, his vehicle, or provide any  information to assist in identifying him ; and (3) petitioner failed to follow up with the police and the case was closed as "Victim Unwilling to Proceed" . Respondent asserted, and petitioner admitted, that on the day following the incident  petitioner went golfing.  Respondent also claimed that petitioner could not show any hardship from the expense of travel because of his salary and asked theCourt to judicially notice that Germany, as a member of the European Union, is part of the U.S. Visa Waiver 
Program, which allows citizens of certain countries to enter the United States for ninety 
days without the need for any prior visa to be arranged.   Petitioner's reply focused on the "full" police report and in support attached a declaration from his attorney who asserted that the report did not accurately reflect the communications he had with Detective Nolen and stated in relevant part: (1) he spoke only once with Detective Nolen on January 13, 2012 and during that conversation Detective Nolen informed him that the police were seriously investigating petitioner's claim and the police were aware of  and investigating a group of people who had been making similar threats; (2) at the conclusion of the call they made tentative plans to discuss the matter again in two weeks but Detective Nolen did not call him back or take him up on his offer to communicate with petitioner; (3) during the call, Detective Nolen did not state that the investigation would be closed if they did not talk again within two weeks; (4) until receiving respondent's opposition he had not seen a "full" police report and as of that date believed that the police investigation remained open; and (5) the ten day letter sent by Detective Nolen was sent to petitioner's German counsel and not to Mr. Scott.  

The district court observed that Rule 43(a) permits "for good cause shown in compelling circumstances and upon appropriate safeguards" the "contemporaneous transmission" of testimony to a hearing from a "different location." The Advisory Committee Notes make clear that there is a decided preference for live testimony in open court: “Contemporaneous transmission of testimony from a different  location is permitted only on showing good cause in compelling circumstances.  The importance of presenting live testimony in court cannot be forgotten. The  very ceremony of trial and the presence of the factfinder may exert a powerful  force for truthtelling. The opportunity to judge the demeanor of a witness  face-to-face is accorded great value in our tradition. Transmission cannot be  justified merely by showing that it is inconvenient for the witness to attend  the trial.” As an example of "compelling circumstances," the Notes offer "unexpected reasons,  such as accident or illness" but, even these should be  balanced against the advantages and disadvantages of rescheduling the trial. The Notes add that "[o]ther possible justifications for remote transmission must be approached cautiously."The Court was not convinced that petitioner established good cause or compelling circumstances and denied his motion.