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Motion for Telephonic Witness


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As Bruno says oppose the motion. Have you searched to see if the witness has been ruled questionable by any other court? Citing that case would provide you with some stronger ammo of why the witness must appear. I do not know who the plaintiff is, but a few JDBs have so many cases lined up against them that you could make the argument that they have have been shown to lack any trustworthiness and it would greatly prejudice you to not be able to conduct direct examination (Midland).

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File an objection to the motion. If there is an applicable rule or ststute, cite it. You can argue that you want to confront the witness in court so you can see their body language and make sure they aren't being coached by a team of lawyers or reading from notes.

A motion to preclude? Or Motion to Strike? Or just an Objection?

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Here is a Template I used:

 

 

HUEY PILOT

100 Airport Way

Nimbus, OR 97200

 

THE CIRCUIT COURT OF THE STATE OF OREGON

FOR WASHINGTON COUNTY

 

MIDLAND FUNDING LLC

A foreign corporation,

                        Plaintiff,

            vs.

HUEY PILOT,

                        Defendant

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Case No.: CxxxxxxxCV

 

DEFENDANT'S OBJECTIONS TO PROCEEDINGS

 

MEMORANDUM

 

 

DEFENDANT’S PROCEDURAL OBJECTIONS

 

Defendant objects to the testimony of any live witnesses by telephone. Plaintiff hasn't

 

previously made this request by motion allowing Defendant sufficient time per ORS 45.400(2)

 

and defense needs to have them testify in person to impeach a witness(s) by showing

 

contradictory statements.

 

 

Defendant cites ORS 45.400 (4)(B) pending issues the witness(s) or party will testify about

 

are so determinative of the outcome that face-to-face cross-examination is necessary.

 

 

Defendant is challenging their testimony and has the right to have them personally appear

 

citing ORS 45.400(4)(a) to evaluate the credibility and demeanor of the witness(s) or party in

 

person as it is critical to the outcome of the proceedings.

 

 

Telephone testimony is only allowed upon agreement of the parties, or by prior motion and

 

order, to allow.  Failure, of the witness(s) or party, to appear personally will result in

 

substantial prejudice to the proceedings. ORS 45.400(f).

 

Should Plaintiff move to have telephone testimony by witnesses allowed at Arbitration, it's not

 

timely, or appropriate nor provides constitutionally sufficient opportunity to test credibility of

 

witnesses and/or the substance of their testimony. Face-to-face testimony is necessary to

 

undo the false accuser, reveal coaching, and confirm identity of actual witness(s).

 

 

The primary guarantees embodied in the Confrontation Clause call out that a)  witness(s); will

 

testify under oath; B) witness(s) will submit to cross-examination; c) defense has the right of

 

"personal examination"

 

 

It is quite unjust, particularly as a pro se defendant, without staff or resources, to not be

 

afforded such an opportunity. Defendant is clearly prejudiced by violation of Defendants right

 

to confrontation.  It's unfair and an extraordinary abuse of the process.

 

 

 

 

 

 

 

Dated this 31st day of Jan, 2013

 

 

 

 

 

HUEY PILOT

100 Airport Way

Nimbus, OR 97200

 

 

 

 

Verification upon Oath or Affirmation

State of OREGON

County of WASHINGTON

Signed and sworn to (or affirmed) before me on Jan 29th, 2013 by Huey Pilot

 

____________________________

Notary Public - State of Oregon

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Beergoggles is your guy.  He's from AZ and  objected to the "telephonic witness" and won.   It's somewhere in the following thread. 

 

http://www.creditinfocenter.com/community/topic/311778-midlandarizona/

Thanks.....I try and pull from him as much as I can. :-) Also, no disclosure or list or name of a witness has been provided to me. In addition, the court documents specifically state that no telephonic appearances are allowed for trial. How can they not provide me with a witness AND request a motion for something no allowed?

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Hows this?

 

COMES the Defendant, appearing PRO SE to OBJECT the MOTION FOR WITNESS TELEPHONIC

 

APPEARANCE by the Plaintiff or Plaintiff’s attorney. The XXXXXX Justice Court of XXXXX County

 

specifically states on the ORDER SETTING FOR TRIAL that the court will NOT ALLOW telephonic

 

appearances for trial. Furthermore, the Defendant objects to the testimony of any witnesses by telephone.

 

The Defendant must be provided sufficient opportunity to test the credibility of the witness(s)

 

and/or the substance of their testimony. Face-to-face testimony is necessary to undo the false accuser,

 

reveal coaching, and confirm the identity of actual witness(s). The Defendant is clearly prejudiced by

 

violation of Defendants right to confrontation.  It's unfair and an extraordinary abuse of the process.

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Does this play here?

 

Rule 28©. Disqualification for interest

 

No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action.
 
The witness does have financial interest in the action.........
 
 
 
 
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Hows this?

 

COMES the Defendant, appearing PRO SE to OBJECT the MOTION FOR WITNESS TELEPHONIC

 

APPEARANCE by the Plaintiff or Plaintiff’s attorney. The XXXXXX Justice Court of XXXXX County

 

specifically states on the ORDER SETTING FOR TRIAL that the court will NOT ALLOW telephonic

 

appearances for trial. Furthermore, the Defendant objects to the testimony of any witnesses by telephone.

 

The Defendant must be provided sufficient opportunity to test the credibility of the witness(s)

 

and/or the substance of their testimony. Face-to-face testimony is necessary to undo the false accuser,

 

reveal coaching, and confirm the identity of actual witness(s). The Defendant is clearly prejudiced by

 

violation of Defendants right to confrontation.  It's unfair and an extraordinary abuse of the process.

Second attempt......Too much? :-)

 

COMES the Defendant, appearing PRO SE to OBJECT the MOTION FOR WITNESS TELEPHONIC

APPEARANCE by the Plaintiff or Plaintiff’s attorney. The XXXXX Justice Court of XXXXX County

specifically states on the ORDER SETTING FOR TRIAL that the court will NOT ALLOW telephonic

appearances for trial. Furthermore, the Defendant objects to the testimony of any witness(s) by telephone

for the following reasons:

 

1. Defendant has not subpoenaed the witness, but instead the Plaintiff offered to have their witness(s) testify.  Since the Plaintiff has offered the witness(s), the Plaintiff should be prepared to bring their witness(s) to testify in person, regardless of economic status.

 

2. The Defendant must be provided sufficient opportunity to test the credibility of the witness(s)

and/or the substance of their testimony. This can not be done telephonically as there is no way to judge body-language, observe facial-expressions, make eye-contact and/or reveal coaching.

 

3. By allowing the witness(s) to attend telephonically, neither the court nor Defendant has the ability to verify the named identity of the named witness(s). There is no way to prove the person phoning in who he/she says they are, the Plaintiff could substitute anyone. The Defendant reserves the right to face his accuser(s).

 

4. In addition, if notes are being referenced by the witness, per ARS 612.2 Arizona Rules of Evidence, “If a witness uses a writing to refresh memory for the purpose of testifying, an adverse party is entitled to have the writing produced at the hearing, to inspect it.” By appearing telephonically, the Defendant has no way to confirm if notes are, or are not, being referenced

 

In conclusion

It is quite unjust, particularly as a Pro Se Defendant, without staff or resources, to not be

 afforded such an opportunity. Defendant is clearly prejudiced by violation of Defendants right

 to confrontation.  It's unfair and an extraordinary abuse of the process.

 

The Defendant Respectfully asks the Court to Deny Plaintiffs Motion to Allow Witness to Appear by Telephone

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you read where the phone appearance is not allowed in your packet you received from the court.

 

from my motion

 

 

Statement of Facts
Defendant has not subpoenaed the witness, but instead the Plaintiff offered to have their witness testify,  since Plaintiff are the ones who offered, Plaintiff should have been prepared to bring their witness to testify in person.  
Legal Support
Rule 612.2 Arizona Rules of Evidence States
If a witness uses a writing to refresh memory for the purpose of testifying, an adverse party is entitled to have the writing produced at the hearing, to
inspect it.
 At this time the Defendant has received nothing from Plaintiff regarding this rule.

Conclusion
  There is no way to prove the person phoning in who he/she says they are The Plaintiff could substitute anyone. When questioning the witness the Court the Plaintiff, or the Defendant cannot see their facial expressions, cannot read their body language.   Witness could be coached by third parties.
The Defendant Respectfully asks the Court to Deny Plaintiffs Motion to Allow Witness to Appear by Telephone

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you read where the phone appearance is not allowed in your packet you received from the court.

 

from my motion

 

 

Statement of Facts

Defendant has not subpoenaed the witness, but instead the Plaintiff offered to have their witness testify,  since Plaintiff are the ones who offered, Plaintiff should have been prepared to bring their witness to testify in person.  

Legal Support

Rule 612.2 Arizona Rules of Evidence States

If a witness uses a writing to refresh memory for the purpose of testifying, an adverse party is entitled to have the writing produced at the hearing, to

inspect it.

 At this time the Defendant has received nothing from Plaintiff regarding this rule.

Conclusion

  There is no way to prove the person phoning in who he/she says they are The Plaintiff could substitute anyone. When questioning the witness the Court the Plaintiff, or the Defendant cannot see their facial expressions, cannot read their body language.   Witness could be coached by third parties.

The Defendant Respectfully asks the Court to Deny Plaintiffs Motion to Allow Witness to Appear by Telephone

Thanks BG.....And I did use some info from you, thanks! Are you saying Im being too detailed? Is stating the court document doesn't allow it simply enough? Am I going overboard? I tried going simple on my first pass (above), but not sure the best route here......

 

Also, is this title correct/ok for my Objection?

 

OBJECTION TO PLAINTIFF’S           

   MOTION FOR WITNESS

 TELEPHONIC APPEARANCE

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I would state the document and attach a copy to your opposition  and your title looks good.

 

Your Name here
Street
City, AZ
Zip code
Phone number
IN THE JUSTICE COURT OF XXXXXX PRECINCT COUNTY OF XXXXXXX, STATE OF ARIZONA
MIDLAND FUNDING LLC    
  NO. case number here
Plaintiff,


      Defendant's
           Opposition to Plaintiffs
      Motion to Appear by Telephone

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How do I best challenge this? I though I saw on the Court website that no telephonic witnesses were allowed, but I'm having trouble tracking it down......Also, should I get going challenging the Affidavit that lists the witness?

 

What case law did they use to support their motion?

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A while back there was a post from AZ explaing that the attorney for the JDB cited an unpublished AZ case (Brimacombe v. Charloff).  The details of that case were not the same as the JDB's reason for a telephonic witness. 

 

This was what I gleaned from reading the case:

 

In Brimacombe, the subpoenaed witness was not properly served because he was out of town.

"It is undisputed that the Brimacombe parties took the proper steps to secure Joyce’s appearance at trial, that through no fault of their own he was not properly served, and that they did not learn of the defect in service and Joyce’s unavailability until immediately prior to trial."

The Brimacombe parties didn't request a telephonic appearance in the beginning. It was only because Joyce was improperly served (through no fault of their own) because he out of town, didn't know he had been served, and couldn't get back to AZ in time for the trial that he was allowed to appear telephonically.

That's why the citation from the Brimacombe case says appearing in person would be a substantial burden. He couldn't get back to AZ in time.

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Here is something the az caselaw only allows telephonic witness in two situations 1: The witness is incarcerated and a vital witness to the party or 2: The witness was in a civil commitment action and was in the hospital for dire medical treatment where he could not leave the hospital. There was no other cases related to a civil case where it was allowed.

 

So here is something nice maybe you can add that statute.

 

 

redacted objection to motion and order to appear telephonically.doc

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Here is something the az caselaw only allows telephonic witness in two situations 1: The witness is incarcerated and a vital witness to the party or 2: The witness was in a civil commitment action and was in the hospital for dire medical treatment where he could not leave the hospital. There was no other cases related to a civil case where it was allowed.

 

So here is something nice maybe you can add that statute.

Ooo, that' good....Thanks ;o)

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Here is something the az caselaw only allows telephonic witness in two situations 1: The witness is incarcerated and a vital witness to the party or 2: The witness was in a civil commitment action and was in the hospital for dire medical treatment where he could not leave the hospital. There was no other cases related to a civil case where it was allowed.

 

So here is something nice maybe you can add that statute.

 

There was another case that I already quoted.  It involved a witness who didn't get a notice to appear, was out of town, and could not get back in time to be in court.

 

In any case, none of these apply to the JDB.  The JDB filed the lawsuit.  They claim they have witnesses.  Since they filed the lawsuit, they should have made the proper arrangements to get their witnesses to the court.

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I am also in Arizona.

 

Just thought I would mention that I recently filed my Opposition to Motion for Telephonic Witness (with info from Beer Goggles who got it denied in his case).  The Plaintiff filed a three page reply against the rules cited and objections made.  When I called the court yesterday about the status, I was told the judge approved the motion. 

 

My case is in Justice Court with a "judge" that just took over a few months ago.

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