Defense Objects to Zoom Testimony for Witness with COVID Symptoms; Judge Then Requires Witness COVID Test before Testifying in Person

By Emma Kantor

WOODLAND, CA – COVID-19 spread continues to affect proceedings in the courtroom, and specifically witnesses.

Joseph Lemay appeared remotely in front of Judge Dave Rosenberg in Yolo County Superior Court for a pre-hearing conference Tuesday, facing felony embezzlement and theft charges.

However, issues arose regarding the prosecution witness’ ability to be present in court.

This witness was exposed to two people who tested positive on Feb. 1 and Feb. 2. The witness had taken two tests that were negative on Feb. 2 and Feb. 9 but she did begin exhibiting symptoms Feb. 4.

The deputy district attorney told the court that the witness presented symptoms of “congestion, a cough, and recently developed a recurring bloody nose.”

Judge Rosenberg asked Deputy Public Defender Aram Davtyan what he thought about a witness testifying on Zoom, to which he responded, “I have an objection to that, your Honor. I am not going to agree to that.”

In apparent shock to this objection, Judge Rosenberg asked PD Davtyan if what he then wanted was to bring someone into court who might be contagious.

PD Davtyan reasoned that the witness could have been in a car accident and an exception would not have been made to allow the witness to testify over Zoom and there exists a dismiss and refile provision for circumstances of this nature.

Judge Rosenberg said there is an emergency order in place which gives him the authority to extend the deadline for the prelim, and the case will be continued.

However, PD Davtyan quickly interjected, stating he does not believe this is the case and that the judge does not have the authority under the emergency order.

The DDA agreed with Davtyan.

While the court does have some authority under the emergency order, it does not include the 60-day timeline, and thus Judge Rosenberg cannot continue the prelim, according to the lawyers.

Interestingly, Judge Rosenberg did reveal the court has found that witnesses testifying by Zoom present well.

“In fact it’s better for the court when they are on Zoom than in person… The court has no real problem with a witness testifying on Zoom. I don’t see how that affects your client’s rights under the law,” the judge insisted.

Davtyan argued this is not a new issue and the court needs to create a procedure because the pandemic has been ongoing for two years

If it was a new circumstance there should be some procedure for the court to rely on instead of creating an exception on the spot, the public defender said, adding that this COVID-specific situation is fixable with time and encouraged the prosecution to follow the provision to dismiss and refile.

Upon explaining that he has a very full calendar for the morning, Judge Rosenberg told the courtroom, “Let’s get to the bottom of it.”

After asking the People if this is a necessary and essential witness and, being told it is, he ultimately made the decision to confirm the preliminary hearing for the afternoon at 1:30 p.m.

Over the defense’s objection, Judge Rosenberg ruled he will not carve out an exception that is not in the law and thus will not allow the witness to testify via Zoom.

Judge Rosenberg also required this witness to take a rapid test before coming into court.

Therefore, if the prosecution is not able to continue with the prelim in the afternoon because their witness cannot be present, then they will have to dismiss and refile, which was the PD’s suggestion initially.

About The Author

Emma Kantor is a second year undergraduate student at UC Davis pursuing a bachelor of science degree in Managerial Economics. She is passionate about her education and advocating for others. She intends to attend law school after finishing her undergraduate degree.

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