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Univ. of South Carolina School of Law

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Tuesday, July 6, 2010

Designated Hitter: Supreme Court Of North Dakota Deems Pre-Sequestration Designation The "Better Practice" Under Rule 615

Similar to its federal counterpart, North Dakota Rule of Evidence 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 on its own motion. This rule does not authorize exclusion of (i) a party who is a natural person, or (ii) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (iii) a person whose presence is shown by a party to be essential to the presentation of the party's caused.

It is well established under both Federal Rule of Evidence 615 and state counterparts that the government's case agent can qualify as "an officer or employee of a party that is not a natural person designated as its representative by its attorney." But what if the government doesn't designate its case agent as its representative at the time that the defendant moves for sequestration? That was the question kind of answered by the Supreme Court of North Dakota in its recent opinion in State v. Wanner, 2010 WL 2598296 (N.D. 2010).

In Wanner,  Sonny Wanner was convicted of criminal mischief for willfully damaging property owned by another.

At the start of the trial, Wanner moved to sequester witnesses, and the trial court granted Wanner's motion. Lieutenant Shirey sat at the State's table during the first day of trial and prior to his own testimony. Wanner objected when Lieutenant Shirey was called to testify. After Lieutenant Shirey testified, Wanner argued the sequestration order should have prevented Lieutenant Shirey from testifying because he was present during other witnesses' testimony and the State failed to designate Lieutenant Shirey as its representative. Wanner requested a mistrial or a curative instruction to the jury. The State argued that under N.D.R .Ev. 615(ii), the trial court cannot exclude an officer because the rule allows the State to have a representative present. The trial court denied the motion for a mistrial and noted that the information Lieutenant Shirey heard was redundant and cumulative. The court stated, "I don't think that he's heard anything that anybody's surprised about, so I don't think there's any harm." The trial court also refused to give Wanner his proposed curative jury instruction on the grounds the State had not violated the sequestration order.

After he was convicted, Wanner appealed, claiming, inter alia, that the trial court erred in denying his motion for a mistrial. The Supreme Court of North Dakota noted that courts consistently have found that a case agent such as Lieutenant Shirey can qualify as "an officer or employee of a party that is not a natural person designated as its representative by its attorney." But the problem for the prosecution was that it did not timely designate Lieutenant Shirey as its representative. According to the court, "[a]lthough the rule does not mandate a formal designation of a representative at a particular time, we conclude the better practice is to designate a representative at the time a party moves for sequestration."

The North Dakota Supremes ultimately found, however, that there was no reason to reverse Wanner's conviction because he failed to prove prejudice. Specifically, the court found that

Wanner has not alleged that the other witnesses' testimony influenced Shirey's testimony, or that the testimony prevented Wanner from detecting falsities or credibility issues. Wanner has failed to show that Lieutenant Shirey's testimony was influenced by prior testimony he heard, or that Wanner was prejudiced by Lieutenant Shirey's testimony.

But would the court have ruled differently if Wanner could have proved prejudice? The court merely indicated that the "better practice" was for a party to designate a representative at the time that the opposing party moves for sequestration. So, it's the "better practice," but is it required? I guess that we will have to wait for a case involving prejudice for the full answer.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/07/615--state-v-wanner----nw2d------2010-wl-2598296nd2010.html

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