Sunday, October 3, 2010
Sequestered In Memphis: Court Of Criminal Appeals Of Tennessee Sets Forth Rules For Expert/Designated Representative Sequestration
At the request of a party the court shall order witnesses, including rebuttal witnesses, excluded at trial or other adjudicatory hearing. In the court's discretion, the requested sequestration may be effective before voir dire, but in any event shall be effective before opening statements. The court shall order all persons not to disclose by any means to excluded witnesses any live trial testimony or exhibits created in the courtroom by a witness. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) a person designated by counsel for a party that is not a natural person, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause. This rule does not forbid testimony of a witness called at the rebuttal stage of a hearing if, in the court's discretion, counsel is genuinely surprised and demonstrates a need for rebuttal testimony from an unsequestered witness.
In its recent opinion in State v. Fowler, 2010 WL 3774413 (Tenn.Crim.App. 2010), the Court of Criminal Appeals of Tennessee noted that one set of rules applies to expert witnesses, another set of rules applies to designated representatives, and still another set of rules applies to witnesses who are both expert witnesses and designated representatives.
In Fowler, Reginald Fowler was charged with aggravated arson. At trial,
Investigator Travis Kincaid testified that he was employed with the City of Knoxville Fire and Explosion Investigation Unit. He was a former U.S. Marshal, a certified fire and explosive investigator firefighter, and a paramedic. After voir dire by the Defendant, Investigator Kincaid was accepted as an expert in fires and their origins.
Kincaid thereafter rendered testimony tending to indicate that Fowler committed the charged arson. After Kincaid testified, Fowler moved to have the trial court exclude him from the courtroom pursuant to Tennessee Rule of Evidence 615. The trial court denied his motion, and, after he was convicted, Fowler appealed, claiming, inter alia, that the trial court erred in failing to exclude Kincaid pursuant to Rule 615.
In response, the Court of Criminal Appeals of Tennessee noted that
subsection (3) [of Rule 615] allows an expert witness to remain in the courtroom to assist counsel in understanding opposing testimony or to learn relevant facts available only through hearing testimony....An expert witness may need to hear the substance of other witnesses' testimony in order to formulate an opinion or to respond to another expert witness....
In addition, the State's designated representative is allowed to remain in the courtroom pursuant to subsection (2)....The State's designated representative may be the victim of a crime, the family member of a victim of a crime, or an investigating officer....A designated representative or prosecuting witness, however, is required to testify before other witnesses...Unlike expert witnesses, whose exception from sequestration is a matter of judicial discretion, the exception from sequestration of the State's designated representative is a matter of right....When a State's designated representative does not testify first, the Defendant is entitled to relief only if the Defendant can show prejudice as a result....In order to show prejudice, a Defendant must show that a witness improperly changed his testimony after hearing other witnesses testify....In contrast, an expert witness who remains in the courtroom may generally testify after hearing other witnesses' testimony.
According to the court, "Investigator Kincaid was not only the State's designated representative, but he was also the State's expert witness." Thus,
Investigator Kincaid was properly allowed to remain in the courtroom pursuant to the sequestration exceptions embodied within Rule of Evidence 615. As an expert witness, Investigator Kincaid was permitted to testify after hearing other witnesses' testimony. Moreover, the Defendant has failed to show how he was prejudiced as a result of Investigator Kincaid testifying after [other witnesses]. As an expert witness, Investigator Kincaid's testimony was based in part upon his reports, which were filed before the trial. Although the Defendant claims that Investigator Kincaid testified to more information than was contained in his report, Investigator Kincaid personally investigated the scene of the crime and related the details of his observations. Nothing in the record suggests that Investigator Kincaid changed his testimony after hearing other witnesses. As a result, the Defendant has failed to show prejudice, and he is not entitled to relief on this issue.
In other words, when a witness is both an expert witness and a designated representative, the court cannot exclude him under Rule 615, and he can testify after other witnesses as long as the other party can prove prejudice.