Palmer v. Valdez

. McKEOWN, Circuit Judge,

concurring in part and dissenting in part:

The Seventh Amendment right to a jury trial in civil cases is a bedrock principle of our civil justice system. Here, the district court presented Will Moses Palmer with a classic Hobson’s choice: If Palmer wished *971 to present evidence through telephonic testimony, the district court demanded that he waive his constitutional right to a jury trial; if he opted to present his case to a jury, the district court would forbid him from examining his witnesses through telephonic testimony. Because the district court presented Palmer with an unconstitutional condition, I respectfully dissent. I concur in the majority’s determination that the district court did not abuse its discretion in denying Palmer’s motion for the appointment of counsel.

I. Background

The majority disposition has left unsaid some important details. Palmer brought a pro se suit against defendants — prison officials at Salinas Valley State Prison — alleging that he was maliciously and unconstitutionally beaten during two separate incidents in December 2002. His case depended largely on the testimony of eyewitnesses who allegedly viewed the beatings. When Palmer arrived for the first day of his trial, Palmer informed the district court that his witnesses were not present. The court determined that the witnesses had not been properly served. Palmer informed the court that he could not “even present [his] case” without the witnesses and requested a continuance of the trial. Defense counsel objected, arguing that all six defendants were present, their witnesses were subpoenaed, and the case was “ready to go.” The district court declined to grant a continuance.

Concerned that he could not adequately present his ease, Palmer brought up an option the district court had offered to him the day before 1 — the opportunity to present some of his witnesses via telephonic testimony, so long as he opted for a bench trial instead of a trial by jury. The district court responded by asking if Palmer wanted to waive a jury trial and present his witnesses via telephone. Defendants acquiesced in the waiver. Palmer responded, “I don’t really have a choice, Your Honor. Yes.” The district court remarked, “You do have a choice. You can go forward with the jury trial right now if you want, or you can waive it. I don’t care. It’s up to you.” Of course, were Palmer to proceed with a jury trial, it would be without his key witnesses. Consequently, Palmer agreed to waive his right to a jury trial, proceeded with a bench trial, and took the judge up on the option of telephonic testimony. The district court ultimately determined that Palmer failed to establish an Eighth Amendment violation and ruled in favor of defendants.

II. Analysis

As the Supreme Court has observed, “the right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment.” Jacob v. City of New York, 315 U.S. 752, 752-53 , 62 S.Ct. 854 , 86 L.Ed. 1166 (1942). Like other constitutional rights, the right to a jury trial may be waived. Solis v. County of Los Angeles, 514 F.3d 946, 953 (9th Cir.2008). However, “[a] right so fundamental and sacred to the citizen ... should be jealously guarded by the courts.” Jacob, 315 U.S. at 752-53 , 62 S.Ct. 854 . And, “courts should indulge every reasonable presumption against waiver.” Solis, 514 F.3d at 953 (internal citations omitted). With that presumption in mind, I turn to Palmer’s appeal.

The district court offered Palmer a benefit — the opportunity to present witnesses via telephonic testimony — in exchange for *972 his agreement to waive his constitutional right to a jury trial. Palmer does not disagree with the prison officials that the district court could have refused to allow telephonic testimony in the first place. Indeed, from an evidentiary and court administration standpoint, the decision whether to permit witnesses to testify via telephone was undoubtedly within the district court’s discretion. See Fed.R.Civ.P. 43(a) & Advisory Comm. Notes on 1996 Amendments (permitting contemporaneous transmission of testimony from location outside the court for good cause). But this case does not present an eviden-tiary or administrative issue. Rather, it demands consideration of a question the majority disposition conspicuously avoids — whether the district court could properly condition Palmer’s right to a jury trial on the form of testimony. Although from what can be gleaned from the record, the district court was apparently trying to accommodate Palmer, those good intentions came unhinged when the ultimate choice offered was pegged to Palmer’s constitutional right under the Seventh Amendment.

Under the doctrine of unconstitutional conditions, the Supreme Court has explained that “even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely.” Perry v. Sindermann, 408 U.S. 593, 597 , 92 S.Ct. 2694 , 33 L.Ed.2d 570 (1972). Specifically, the government cannot condition a benefit on a basis that infringes upon an individual’s constitutionally guaranteed interest. Id. The reasoning behind the doctrine is sound: A court cannot allow the government to accomplish through a condition something it cannot demand outright. See id.

To determine whether the government has violated the unconstitutional conditions doctrine, the court must look to whether the condition placed upon the receipt of a benefit “further[s] the end advanced as the justification for the prohibition.” Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 837 , 107 S.Ct. 3141 , 97 L.Ed.2d 677 (1987). In other words, the “government cannot impose a condition for a reason not germane to one that would have justified denial” of the benefit. Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L.Rev. 1413, 1460 (1989).

The district court offered no rationale for its link between permission to use telephonic testimony and a bench trial. Indeed, it is difficult to divine a legitimate reason under this circumstance as to why use of telephonic testimony was conditioned on waiver of a jury trial. The only possible link between the district court’s condition and a total ban on telephonic testimony would result from an assumption that judges, as opposed to juries, are better equipped to deal with telephonic testimony. Thus, the argument would go, the risks of telephonic testimony — particularly a potentially diminished ability to discern witnesses’ credibility — would be less acute in a bench trial than in a trial before a jury. This argument is flawed because the law gives no edge to judges in assessing credibility.

“Under our system of jurisprudence a properly instructed jury of citizens decides whether witnesses are credible. The trial judge is deemed to have no special expertise in determining who speaks the truth.” United States v. Cravero, 530 F.2d 666, 670 (5th Cir.1976); see also United States v. Giampa, 758 F.2d 928, 935 (3d Cir.1985); United States v. Blasco, 581 F.2d 681, 684-85 (7th Cir.1978). Thus, the jury would be no more disadvantaged than the judge in evaluating the demeanor of a witness ap *973 pearing via telephone or video. One might posit that in an ideal world having the fact-finder view the witnesses in person permits a better evaluation of credibility. Rule 43 of the Federal Rules of Civil Procedure essentially adopts this approach. But, even that assumption is not universally held. See Richard L. Marcus, Completing Equity’s Conquest? Reflections on the Future of Trial Under the Federal Rules of Civil Procedure, 50 U. Pitt. L.Rev. 725, 757-62 (1989).

Use of both contemporaneously transmitted and pre-recorded testimony has been sanctioned by the Supreme Court, circuit courts, the Federal Rules of Civil Procedure, and the Federal Rules of Evidence. Federal Rule of Civil Procedure 43(a) contemplates the very circumstance that arose here: “For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.” The Notes to the 1996 Amendments to Rule 43 underscore the benefits of presenting live testimony, but make no distinction between cases involving a judge and those with a jury.

Contemporaneously transmitted telephonic and audiovisual testimony is utilized in many different scenarios. For example, in a criminal case, the Supreme Court approved the use of one-way closed circuit television testimony by a child victim of sexual abuse. Maryland v. Craig, 497 U.S. 836 , 110 S.Ct. 3157 , 111 L.Ed.2d 666 (1990). The Ninth Circuit has also acknowledged the propriety of telephonic testimony in the civil arena. In Zolotukhin v. Gonzales, 417 F.3d 1073, 1076 (9th Cir.2005), we criticized an immigration judge’s refusal to permit the telephonic testimony of petitioner’s expert. We have also explicitly approved the use of telephonic testimony by the Securities and Exchange Commission during the course of disciplinary proceedings: “Nor do we agree with [the] suggestion that the ... credibility findings are undermined because [the witness] testified at the hearing by telephone.” Alderman v. S.E.C., 104 F.3d 285 , 288 n. 4 (9th Cir.1997).

The discovery and evidentiary rules provide opportunity for another form of out-of-court testimony — the electronic presentation of pre-recorded testimony taken at depositions. Federal Rule of Civil Procedure 30(b) allows for the recording of depositions by “audio, audiovisual, or stenographic means.” And deposition testimony — whether simply recorded or taken via telephone or video — is often presented at trial to highlight an admission by a party opponent, see Fed.R.Evid. 801(d)(2), or where the witness is unavailable, see Fed.R.Evid. 804. These provisions make no distinction between bench trials and those involving a jury. The point is that while live testimony is preferred, our system is set up to make specific use and accommodation of testimony via electronic means.

Absent insurmountable logistical considerations or some compelling reason — none of which is present here — -I see no germane reason to distinguish between a bench trial and a jury trial in determining whether to allow telephonic testimony. Because limiting Palmer to a bench trial was unrelated to legitimate reasons for a total ban on telephonic testimony, the district court violated Palmer’s Seventh Amendment right to a jury trial by burdening this right with an unconstitutional condition.

In response to the majority’s focus on what it considers to be Palmer’s lack of diligence in obtaining witnesses for trial, the district court’s sanction for this delay should not have been grounded on a constitutional choice. And, the fact that *974 Palmer did not object on constitutional grounds to the jury waiver option simply signals the obvious — as Palmer put it, at that point, he had no choice. Participation in a bench trial can hardly constitute “knowing consent” if it was driven by an unconstitutional condition.

Typically, the final stage of analysis would be whether the error was harmless. However, the government did not make that argument. In fact, at oral argument, counsel for the government explicitly conceded this point. By hanging its hat on the sole issue of whether there was error, the government waived any argument that the error was harmless. United States v. Varela-Rivera, 279 F.3d 1174, 1180 (9th Cir.2002). I would reverse and remand for a new trial.

. The district court originally initiated a conversation about the possibility of telephonic testimony because one of Palmer's desired witnesses refused to leave the prison to testify.