Main Rule: Oral and Direct Testimony
Both parties in a lawsuit and other individuals may be required to testify in Norwegian courts. The general rule is that the person must appear in court in person and give their testimony directly to the court.
Exception: Remote Testimony (Digital Testimony)
In some cases, parties and witnesses may testify via video or telephone instead of appearing in person. Ultimately, it is the court that decides whether someone may give digital testimony, and whether it should be by video or telephone. The court will assess whether it is “appropriate and prudent” for the testimony to be given digitally. A typical situation where remote testimony is considered appropriate is when the person lives far from the court. Since the COVID-19 pandemic, testimony by video and/or telephone has become more common, partly because courts acquired better technical equipment and because judges and lawyers became more accustomed to digital hearings.
Exception: Recorded Testimony
Another exception to the main rule of direct testimony is so-called recorded testimony. This means that the witness appears in court and is asked relevant questions at a time before the trial begins. The interview is recorded with audio and video and is then played back during the trial.
Recorded testimony is used less frequently than remote testimony. It can be practical if there is a risk that the party or witness will not be able to attend the trial, for example, due to serious illness.
When Can Testimony Be Written?
It is common for parties and witnesses to write down what they wish to say to the court. Sometimes, lawyers may ask a witness to write answers to specific questions and wish to submit this to the court. This can be useful for several reasons. Anyone who is to testify in court should refresh their memory before the hearing. The court may also require witnesses to prepare and conduct necessary investigations. It may also be practical to obtain a written statement if the witness is located in another country and it is uncertain whether they can or will attend the trial.
The starting point is that such written statements can be submitted to the court, but the person must also appear in person or digitally. The reason is that the parties’ lawyers and the judge must have the opportunity to ask the witness questions.
Written statements can only replace oral testimony if (1) the parties in the case agree, or (2) it is impossible to examine the person who gave the written statement, and it does not conflict with the purpose of the law. In assessing whether it conflicts with the law’s purpose, the court will, among other things, consider whether the opposing party has had the opportunity to question the witness at an earlier stage.
There is a distinction between written statements made “for the purpose of the case” and other written statements. If a written statement is prepared with the intention of being used in the current case, the above limitations apply. If notes, emails, or similar documents were not prepared for use in the current case—for example, if they were created long before the dispute arose—they may be used as evidence regardless of whether the opposing party consents and regardless of whether the person appears as a witness.
What About Audio Recordings and Transcripts?
In recent years, there has been a growing trend of meetings, conversations, or similar being recorded, and some wish to submit these audio recordings or transcripts to the court.
Audio recordings can be good and reliable evidence. For example, they can clarify what was actually said in a meeting if the participants disagree or do not remember. However, audio recordings or transcripts will not in themselves replace oral testimony. If someone wishes to submit an audio recording as evidence, it will often still be relevant to call the persons on the recording as witnesses during the trial.
The same distinction applies to audio recordings as to written statements, namely whether the recording was made for the purpose of the case or not. The purpose of the recording is therefore important in determining whether it can be used as evidence without the consent of the opposing party or without the person on the recording also being called as a witness.
It is also important to be aware that the person making the recording is responsible for ensuring that it is done in accordance with the law. For example, it is prohibited under the Penal Code to make secret audio recordings of conversations between others. If the recording was made illegally, the main rule is that it cannot be used as evidence in court. The same applies to transcripts of such recordings. The court may also refuse to accept audio recordings as evidence if they were obtained in an “improper manner” (even if not illegal). In this assessment, the court may consider whether the other persons in the recording were aware that the conversation/recording was being made.
Our Lawyers Are Specialists in Litigation and Dispute Resolution
Litigation and dispute resolution before the courts have always been a central part of Hjort’s practice. We regularly appear in court and are experts in the rules for presenting evidence and other procedural matters. We always ensure that our clients’ interests are safeguarded throughout the entire legal process.
