Last amended July 1, 2023 · Last verified July 1, 2026
Effective Date: July 1, 2015
Amended: July 1, 2023
The July 1, 2015 amendment adopts a new rule – Civ.R. 43 – heretofore designated within the Ohio rules as “Reserved”. The new rule is modeled on Fed.R.Civ.P. 43. Division (A) recognizes the availability of modern electronic transmission facilities by specifically authorizing live open court testimony from a location outside the courtroom. Consistent with Fed.R.Civ.P. 43(c) division (B) provides that a court may, in its discretion, consider facts presented by affidavit in deciding a motion.
The July 1, 2023, staff note for Civ.R. 39 suggests factors sensibly discussed when considering remote proceedings using this rule.
The new division (D)(2) is added to explicitly provide “long-arm” jurisdiction over a witness testifying in open court remotely, whether from inside or outside Ohio. Some means is needed to handle perjury or more common issues, such as a witness who refuses to answer a proper question. This new division explicitly gives the presiding judicial officer the same authority with a virtual witness as is available when a witness testifies in person in the court. The court, counsel, and pro se litigants should be mindful of two practical concerns when using virtual witnesses: first, it may be appropriate not only to require the witness to affirm on the record that the witness understands he or she has submitted to the authority of the Ohio court, but also to require the witness to display a driver’s license or other photographic identification if he or she is not known or recognizable to those in the court; and second, counsel or pro se litigants should inform witnesses of these requirements ahead of the remote testimony to prevent misunderstanding by the witness, delay of the proceedings, or possible exclusion of the witness.
Division (A) states the default: witness testimony at trial or a hearing is taken in open court unless a statute, the Rules of Evidence, the Civil Rules, or another Supreme Court rule says otherwise, though the court may permit testimony in open court by remote presence for good cause and with appropriate safeguards. Division (B) requires a request to testify remotely to be discussed among counsel and unrepresented parties and filed with the court by the deadline in the case scheduling order, or at least thirty days before trial or the hearing, unless the court permits later notice for good cause.
Division (C) lets the court decide a motion that relies on facts outside the record by affidavit, or by hearing the matter wholly or partly on oral testimony or depositions. Division (D) allows the oath or affirmation to be administered in a way that lets the administering person verify the witness's identity at the time, and requires every witness testifying remotely, including from outside Ohio, to affirm on the record that the witness has submitted to the Ohio court's jurisdiction for purposes of enforcing the oath, including any possible perjury charge arising from the testimony.
Yes, for good cause and with appropriate safeguards under Rule 43(A), but a request to testify remotely must generally be filed by the deadline in the case scheduling order or at least thirty days before trial.
Rule 43(C) lets the court decide it on affidavits, or hear the matter wholly or partly through oral testimony or depositions.
That the witness has submitted to the jurisdiction of the Ohio court for purposes of enforcing the oath or affirmation, including any perjury charges that might arise from the testimony.