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

Monday, May 4, 2009

Excuse Me: Seventh Circuit Finds That Rule 703 Does Not Create An Expert Exception To Witness Sequestration

Federal Rule of Evidence 615(3) states 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...(3) a person whose presence is shown by a party to be essential to the presentation of the party's cause.

Meanwhile Federal Rule of Evidence 703 states in relevant part that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing." In its recent opinion in United States v. Olofson, 2009 WL 1162468 (7th Cir. 2009), the Seventh Circuit had to answer the question of whether Rule 703 is...an...exemption for expert witnesses from Rule 615 sequestration." And it answered that question in the negative.

In Olofson, David Olofson was charge with knowingly transferring a machinegun on violation of 18 U.S.C. Section 922(o) based upon the jury's conclusion that a modified Colt AR-15rifle seized from him pursuant to a search warrant met the definition of a machine gun under 28 U.S.C. Section 5845(b) in that it was:

weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

The jury reached this conclusion after hearing the testimony of the prosecution's expert witness, who:

testified that he used military-grade ammunition the first time he test-fired the AR-15 with the selector switch in the unmarked position and that the gun fired only one round. Later, using civilian-grade ammunition, he conducted two more test-fires of the weapon in the unmarked mode. In one of those tests, he held the trigger down and the gun fired all of its ammunition (twenty rounds) before stopping. He also emptied two twenty-round magazines in five- or ten-round bursts by depressing, holding, and releasing the trigger several times. The government's expert stated that such firing capabilities did not result from a “hammer-follow” malfunction but rather were intended features of the gun. 

One person who did not hear this testimony was Olofson's gun expert, Len Savage because the court granted the prosecution's motion, over Olofson's objection to exclude him from the courtroom during its expert's testimony pursuant to Federal Rule of Evidence 615. In affirming this ruling, the Seventh Circuit rejected Olofson's argument that Federal Rule of Evidence 703 creates an automatic exemption for expert witnesses from Rule 615 sequestration, concluding that "merely because Rule 703 contemplates that an expert may render an opinion based on facts or data made known at trial does not necessarily mean that an expert witness is exempt from a Rule 615 sequestration order."

Moreover, the Seventh Circuit rejected Olofson's argument that Savage's presence during the prosecution expert's testimony was "essential" in this particular case because  

Olofson did not tell the district court (as he tells us on appeal) that Savage's presence was of critical import to his highly-technical defense that the AR-15 malfunctioned. Even assuming that he did make the argument, Olofson did not carry his burden of demonstrating essentiality. The defendant stated that Savage should be allowed to hear the government expert's testimony so that Savage could "rebut or add information" to any inaccurate testimony about malfunctions, but Olofson did not tell the district court why Savage's presence was necessary to achieve that end. Indeed, much of the data and malfunction information relied upon by the government's expert was already known to Savage due to the pre-trial disclosure of the government expert's reports, and Savage had the opportunity to respond to such materials during the defendant's case. Regarding any information which was not included in the reports but may have come into evidence during the testimony of the government's expert, Olofson had ample opportunity on direct examination for Savage to rebut, add to, or opine on the implications of such information by asking him to assume its existence. Although it might have been helpful or desirable for Savage to hear the government expert's testimony, Olofson did not show that Savage's presence was essential to the presentation of his case.



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The trial tactics smack of prosecution gamesmanship.

Posted by: Phil Cave | May 5, 2009 1:56:06 AM

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