Ohio Civ.R. 43

As amended through October 29, 2024

Rule 43 - Taking Testimony

(A)In open court At trial or hearing, the witnesses' testimony shall be taken in open court unless a statute, the Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise. For good cause and with appropriate safeguards, the court may permit testimony in open court by remote presence.

(B)Notice A request to present testimony remotely shall be discussed among counsel and unrepresented parties and filed with the court no later than the deadline set in the case scheduling order or thirty days before the trial or hearing, unless for good cause the court permits later notice.

(C)Evidence on a motion When a motion relies on facts outside the record, the court may hear the matter on affidavits or may hear it wholly or partly on oral testimony or on depositions.

(D)Oath or Affirmation

(1) The oath or affirmation of the witness may be administered in a manner that allows the person authorized to administer it to verify the identity of the witness at the time it is administered.

(2) Every witness testifying remotely, including those outside this state, in a trial or other proceeding in open court in Ohio must affirm on the record that the witness has submitted to the jurisdiction of the Ohio court for the purpose of enforcement of his or her oath or affirmation, including any consideration of perjury charges arising from such testimony.

Ohio. Civ.R. 43

Effective:7/1/2015; amended effective 7/1/2023.

Staff Note (July 1, 2015 Amendment)

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.

Staff Note (July 1, 2023 Amendment)

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.