NYS Public Health Legal Manual: A Guide for Judges, Attorneys ...

§ 1.127 NEW YORK STATE PUBLIC HEALTH LEGAL MANUAL
The exercise of a judge’s authority to permit remote appearances
remains governed by statutes that address specific areas of testimony.
Insofar as the defendant in a criminal case is concerned, CPL
§ 182.20(1) authorizes such appearances “except an appearance at a
hearing or trial” (and requires the consent of the defendant for any
such remote appearance). Were a public health emergency to lead to
a need for a criminal defendant to appear remotely at a trial, and
assuming that the remote appearance satisfied the requirements of
the Confrontation Clause, the appearance could be had only if the
Governor exercised his or her power during a state disaster emergency
to suspend CPL § 182.20.
The Confrontation Clause, by its terms, does not apply to civil cases,
and the courts have found no absolute right to confrontation in civil
trials. See Pope v. Pope, 198 A.D.2d 406 (2d Dep’t 1993) [no right
for prisoner to appear personally at civil trial in which he or she is a
party]. Civil trials are instead governed by general principles of due
process, and a denial of confrontation would be one element in a
determination of whether a party received a fair trial. See, e.g., Beeley
v. Spencer, 309 A.D.2d 1303, 1305-06 (4th Dep’t 2003) [examining
impact on fairness of personal injury trial of statements of
eyewitnesses being introduced without their testimony]. Issues of
remote appearances in civil trials due to public health emergencies
may best be handled by obtaining the consent of the parties.
[1.127] D. Protection of Court Personnel
[No applicable statutes or rules]
Commentary
Outbreaks of contagious diseases can put judges and nonjudicial
court personnel at risk if the participants in court proceedings have
those contagious diseases. One option is to bar the presence of such
infected individuals from the courthouse. This can be done by
adjourning proceedings involving litigants who are known to have
an infectious disease, or by getting infected individuals to voluntarily
absent themselves physically from the courtroom where the pro-
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