EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, May 14, 2008

Exclusion Is A Privilege: Eleventh Circuit Notes That There's No Right To Witness Sequestration

The Eleventh Circuit's recent opinion in United States v. Edwards, 2008 WL 1932136 (11th Cir. 2008), notes that while a party can move to have a witness excluded from the courtroom under Federal Rule of Evidence 615, a party has no constitutional right to have such a motion granted.  In Edwards, the prosecution claimed that Charles E. Edwards was running a Ponzi scheme while he claimed that he was running a legitimate corporation that provided management services to payphone owners.  Prior to trial, Edwards moved under Federal Rule of Evidence 615 for the district court to sequester all potential prosecution witnesses, including those witnesses who purported to be the victims in the case.  Rule 615 provides that:  "At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present."

The district court denied Edwards' motion under the fourth listed exception because he sought to exclude witnesses who purported to be victims.  Pursuant to the Crime Victims' Rights Act (CVRA), 18 U.S.C. Section 3771(a)(3), a crime victim has "[t]he right not to be excluded from any...public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding."  After Edwards was convicted, he appealed to the Eleventh Circuit.

The basis of Edwards' appeal was not that he had established by clear and convincing evidence that testimony by the victims would be materially altered but instead that Federal Rule of Evidence 615 "is constitutionally based and that the district court's invocation of the CVRA to deny his motion denied him his Fifth Amendment due process right to a fair trial and his Sixth Amendment right of confrontation."  The Eleventh Circuit rejected this argument "for one simple reason: A criminal defendant has no constitutional right to exclude witnesses from the courtroom."  Instead, it is within a trial court's discretion to decide whether to grant a motion for sequestration under Federal Rule of Evidence 615, and its decision will only be reversed if it abused that discretion.



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