EvidenceProf Blog

Ten Years Have Got Behind You: Court Of Appeals Of Ohio Admits 14 Year-Old Assault Conviction Under Rule 609(B)

Like its federal counterpart, Ohio Rule of Evidence 609(B) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement, or the termination of community control sanctions, post-release control, or probation, shock probation, parole, or shock parole imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

Moreover, the Advisory Committee's Note to Federal Rule of Evidence 609 provides that

Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness.

In its recent opinion in State v. Jones, 2010 WL 3839437 (Ohio App. 3 Dist. 2010), The Court of Appeals of Ohio, Third District, found that the prosecution properly impeached the defendant with his prior conviction that was more than ten years old. I disagree.

In Jones, Timothy A. Jones was convicted of felonious assault based upon an attack that he allegedly committed while he was in a correctional center awaiting trial on charges stemming from a separate incident. At trial, the prosecution impeached him through, inter alia, evidence of his 1986 conviction for felonious assault.

After he was convicted, Jones appealed, claiming, inter alia, that this impeachment was improper. The Court of Appeals of Ohio, Third District, disagreed, finding that

the record indicates that in conformity with Evid.R 609(B) the prosecution supplied Jones with ample written notice via multiple discovery-related filings that it intended to impeach Jones with convictions older than ten years giving Jones sufficient opportunity to contest the use of the evidence at trial.

After reviewing the record, we cannot conclude that the prosecution elicited testimony from Jones about his prior felony convictions other than for the permissible purpose of impeaching Jones' credibility. Further, we note that the assault giving rise to this case occurred between two inmates while residing in a correctional facility. Therefore, any prejudice to Jones concerning evidence of his prior felony convictions was lessened due to the fact that Jones was serving time in jail on a prior felony conviction at the time of trial. Accordingly, we do not find that the trial court abused its discretion in permitting the prosecution to cross-examine Jones about his prior felony convictions. Jones' third assignment of error is overruled.

Okay, so the prosecution provided notice, but did the probative value of the conviction substantially outweigh its prejudicial effect? The court's opinion didn't address the five factors courts usually use in making this determination, so I will address them in this post.

First, the conviction was for assault a crime of violence, so the conviction did not have much probative value on the issue of Jones' credibility as a witness, making the first factor cut against admission. Second, the conviction was about 14 years old, reducing the probative value of the conviction because Jones could have been rehabilitated. That said, Jones had continued conflict with the law as evidenced by his incarceration on other charges, meaning that he likely had not been rehabilitated, meaning that the second factor neither favored nor cut against admission.

Third, the crime underlying the prior conviction -- felonious assault -- was the same as the crime charged: felonious assault. This greatly increased the prejudicial effect of the prior conviction because of the fear that the jury would misuse the prior conviction as propensity character evidence rather than as impeachment evidence. Moreover, I don't see how the fact that Jones was already serving time in jail lessened the prejudicial effect of the conviction. If anything, I think it increased it. Thus, the third factor strongly cut against admission.

Fourth, Jones' testimony was extremely important in establishing who started the fight, and because Jones may have been wary of taking the witness stand if his prior conviction were deemed admissible (especially give factor three). Thus, the fourth factor cut against admission. That said, Jones' credibility was central to the determination of guilt or innocence because it was basically his word against the other inmate's word. Thus, the fifth factor favored admission, meaning that, as is usually the case, the fourth and fifth factors counterbalanced.

Thus, the way I see it, 3 factors favored inadmissibility, 1 factor was neutral, and 1 factor favored admissibility. Even if the court's analysis of these five factors was somewhat different, I don't see how the court could have found that the probative value of the conviction substantially outweighed its prejudicial effect. I thus think that the court's ruling was erroneous.

-CM

Striking Out: Minnesota Court Permits Jury Impeachment Regarding Whether Jurors Considered Stricken Testimony

Like its federal counterpart, Minnesota Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention, or whether any outside influence was improperly brought to bear upon any juror, or as to any threats of violence or violent acts brought to bear on jurors, from whatever source, to reach a verdict. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

A witness testifies at trial, and the trial court later strikes that testimony. Defense counsel then moves for a mistrial, and the trial court denies the motion but issues a curative instruction instructing the jury to disregard the stricken testimony. The defendant thereafter moves for a mistrial. Should the State be able to introduce an affidavit by the jury foreperson stating that the jury honored the curative instruction? According to the recent opinion of the Court of Appeals of Minnesota in State v. Paquin, 2010 WL 3853342 (Minn.App. 2010), the answer is "yes," despite Rule 606(b). I disagree. 

In Paquin, Richard Dean Paquin, II was charged with first- and third-degree criminal sexual conduct for acts committed against his girlfriend's brother, K.L., from April 2001 through July 2003. At trial,

The county attorney's victim-witness coordinator, T.D., testified that she took notes during an interview with D.L. T.D. testified that D.L. stated during the interview that “[appellant] told her not to go into his top drawer[,][but] [s]he went into his top drawer, and she found his pornography.” This testimony contradicted D.L.'s statements that she bought the pornography and that there was no place in the apartment she shared with appellant where appellant forbade her to go. On cross-examination, T.D. stated that her notes on this subject were not included in the summary provided to the defense. The district court found “a discovery violation.” In determining a remedy, the district court considered a continuance, but determined that additional investigation was not necessary. The court considered appellant's attorney's request for a mistrial, but stated that while the error was obvious, it was not so prejudicial to warrant a mistrial. The district court concluded that “the prejudice, although concerning, ... c[ould] be cured by a curative instruction or by re-calling [D.L.]” The court instructed the jury: “You are to disregard the testimony of [T.D.] as it relates to any alleged statement by [D.L.] that [appellant] instructed her not to go into [his] top dresser drawer."

After he was convicted, Paquin moved for a new trial, in part, because of the state's failure to disclose T.D.'s notes. The court, however, denied Paquin's motion, finding

that the curative instruction was the appropriate remedy. The court found that the state should have provided the defense with its notes, but chose not to in order to "'save a little something' for possible impeachment at trial. This is a trial by surprise tactic that is discouraged by the open discovery rules." The district court concluded, however, that the “nondisclosure [ ] was not so serious and prejudicial that [appellant's] right to a fair trial was denied.” The court based this conclusion on

an affidavit of [the jury] foreperson....submitted to show ‘whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror[.]’ From the [ ] affidavit, it appears that the jury did not engage in any improper deliberations in violation of court orders. [FN1]

FN1. The state included the affidavit as an exhibit with its submission in opposition to appellant's new-trial motion. The district court accepted the affidavit under Minn. R. Evid. 606(b). Rule 606(b) provides that while a juror may not testify as to any matter occurring during the jury's deliberations, to the effect of anything upon a juror's mind, or emotions influencing a juror in reaching a verdict, a juror may provide an affidavit as to “whether extraneous prejudicial information was improperly brought to the jury's attention.” The affidavit here indicates that the jury did not discuss information that the district court ordered the jury to disregard and that the jury did not base its verdict on information that the district court ordered the jury to disregard. The affidavit falls under the exception to rule 606(b).

 

The Court of Appeals of Minnesota thereafter affirmed this decision. This doesn't make any sense to me. Extraneous prejudicial information is “information that was not admitted into evidence but nevertheless bears on a fact at issue in the case.” See, e.g., Robinson v. Polk, 438 F.3d 350, 363 (4^th Cir. 2006). But the evidence in Paquin was admitted into evidence, even though it was later stricken. In such circumstances, courts consistently have deemed the jury's consideration or nonconsideration of such evidence to be internal to the jury deliberation process and thus not a proper topic for jury impeachment. See, e.g., Bradford v. City of Los Angeles, 21 F.3d 1111 (9^th Cir. 1994).

If this were not the case, nearly every verdict would be subject to jury impeachment, which would defeat the very purpose of the jury impeachment rule. It is hard to think of a trial where some evidence, question, or testimony was not admitted and later stricken. If jurors could testify or submit affidavits concerning whether they considered the stricken evidence, question, or testimony, jurors would be subjected to continual harassment by the losing party.

-CM 

In Conclusion: Ninth Circuit Finds Public Records Exception Doesn't Cover Legal Conclusions

Federal Rule of Evidence 803(8)(C) provides an exception to the rule against hearsay for

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth...in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. 

In its opinion in Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988), the Supreme Court found that Rule 803(8)(C) covers not only factual findings but also factually based conclusions and opinions contained in public reports. But does the Rule also cover legal opinions in such reports? That was the question addressed by the recent opinion of the Ninth Circuit in Sullivan v. Dollar Tree Stores, Inc., 2010 WL 3733576 (9th Cir. 2010).

In Sullivan, Christina Sullivan, the Plaintiff, was the full-time Store Manager of the Pasco Factory 2-U store. Factory 2-U, however, eventually filed for Chapter 11 bankruptcy, and a bankruptcy court approved the sale of Factory 2-U's existing leasehold on the Pasco store to Dollar Tree. Sullivan thereafter filled out an application for employment with Dollar Tree, and Dollar Tree hired her as an assistant manager of the soon-to-be-opened Dollar Tree store at the same Pasco location.

From September 2004 until May 2005, Plaintiff worked as assistant manager at the Pasco Dollar Tree without incident. In May 2005, Plaintiff's mother experienced serious health problems, and Plaintiff provided assistance and care for her. Dollar Tree granted Plaintiff some amount of unpaid leave but less than Plaintiff requested. Plaintiff either quit or was fired in late May or June 2005.

Plaintiff eventually contacted the [Department of Labor] [("DOL")], which initiated an investigation of whether Dollar Tree had violated the [Family and Medical Leave Act [("FMLA")]. The DOL concluded that Dollar Tree's actions had violated the FMLA and informed the parties of its conclusion. During the negotiations that followed, Dollar Tree offered Plaintiff reinstatement to her former position at the Pasco store, a partial payment of $5,000 toward lost wages, and certain other benefits such as accrued sick leave. Although Plaintiff had sought more than $20,000 in lost wages, she accepted the offer and began work again on April 14, 2006.

After her reinstatement, Plaintiff continued working at the Pasco Dollar Tree store until she quit voluntarily in December 2006. Soon thereafter, Plaintiff filed [an] action in federal court seeking the full amount of her lost wages.

A key issue in the action was whether Dollar Tree was a successor in interest to Factory 2-U for FMLA purposes, and the DOL report stated in relevant part that

Dollar Tree Stores, Inc., a covered employer, is considered a "successor in interest" to the covered employer Factory 2-U Stores, Inc. The circumstances of the transition that occurred between the two companies coincide with six out of eight factors that determine a "successor in interest." These factors are: 1) the same retail business operation continued; 2) the same rental space was used; 3) most of the same personnel continued to work; 4) the store continued to employ retail salespeople who worked during regular hours; 5) the same supervisory personnel continued with the opening of the Dollar Tree store; and 6) the products continued to include clothing along with other personal, gift and household items.

The district court found that this portion of the report was inadmissible hearsay because Federal Rule of Evidence 803(8)(C) does not cover legal conclusions, found that Dollar Tree was not a successor in interest under the FMLA, and granted summary judgment to Dollar Tree.

Sullivan thereafter appealed, and the Ninth Circuit noted that in Rainey, the Supreme Court found that Federal Rule of Evidence 803(8)(C) covers factually based conclusions and opinions but "express[ed] no opinion on whether legal conclusions contained in an official report are admissible as "findings of fact" under Rule 803(8)(C). The court then noted that

Only one circuit court has addressed that open question at any length. In Hines v. Brandon Steel Decks, Inc., 886 F.2d 299, 302 (11th Cir.1989), the Eleventh Circuit held that "Rule 803(8)(C) does not provide for the admissibility of the legal conclusions contained within an otherwise admissible public report." "Legal conclusions are inadmissible because the jury would have no way of knowing whether the preparer of the report was cognizant of the requirements underlying the legal conclusion and, if not, whether the preparer might have a higher or lower standard than the law requires."...That court "caution[ed], however, that the amorphous line between ‘factual’ and ‘legal’ conclusions may obscure a practical analysis under this rubric."...The Fourth Circuit has agreed, albeit without analysis. See Zeus Enters., Inc. v. Alphin Aircraft, Inc., 190 F.3d 238, 243 (4th Cir .1999) (“The NTSB order involved no factual determinations and was strictly a legal ruling. As such, the NTSB order was not admissible under Rule 803(8)(C).").

The Ninth Circuit decided to agree with these courts, concluding that

Pure legal conclusions are not admissible as factual findings. In the context of a summary judgment motion, a conclusion of law by a third-party investigator does not, by itself, create a genuine issue of material fact for the obvious reason that a legal conclusion is not a factual statement and for the reasons explained by the Eleventh Circuit.

-CM

Oh, God!: Court Of Appeals Of Texas Precludes Jury Impeachment Regarding Juror Saying God Sent Jury To Make A Decision

A defendant is on trial for three counts of aggravated sexual assault of a child and one count of indecency with a child by sexual contact. After deliberating for less than a day, the jury sends the judge a note stating that the jury is "hung." Without objection from either side, the judge instructs the jury to "please continue with your deliberations." And the jury does indeed continue to deliberate...for a few minutes, before coming back with a verdict. In those few minutes, a female juror tells the foreperson that God sent the jury to make a decision and that it was the jury's duty to do so; thereafter, the jury compromises, finding the defendant guilty on two counts and not guilty on two counts. After he is convicted, should the defendant be able to present evidence of what transpired in those few minutes? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Orozco v. State, 2010 WL 3782198 (Tex.App.-San Antonio 2010), the answer is "no."

In Orozco, the facts were as stated above, with Ralph Orozco, Jr. being the defendant.

After the verdict was entered, Orozco's counsel and the prosecutor spoke to several jurors. According to Orozco, specifically his counsel's affidavit admitted during the hearing on the motion for new trial, one or more jurors related that the foreperson did not "think the defendant was guilty but he didn't know if he was innocent." However, after a female juror told the foreperson God had sent the jury to make a decision and it was the jury's duty to do so, the jury compromised, finding Orozco guilty on two counts and not guilty on two counts, which allowed the jurors to be released from service. Counsel also stated in her affidavit that a juror, the same one that told the foreperson about the jury's duty, told her the foreperson was gay and this disgusted the juror. 

Orozco sought to present evidence of this jury misconduct, but the Court of Appeals of Texas, San Antonio, found it was inadmissible under Texas Rule of Evidence 606(b), which provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

Texas Rule of Evidence 606(b) is Texas' counterpart to Federal Rule of Evidence 606(b), and the Advisory Committee's Note to the federal rule clearly indicates that jurors can't testify that a verdict was a compromise verdict. Orozco responded that the application of Rule 606(b) violated his right to due process, but the court again disagreed, noting that the U.S. Supreme Court rejected a similar argument in Tanner v. United States, 483 U.S. 107 (1987), in which it found that application of Rule 606(b) to preclude allegations that jurors got drunk, used and sold drugs, and fell asleep during deliberations did not violate the defendants' constitutional rights.

-CM

Return To Sender: Ninth Circuit Finds Western Union Check Payable To Defendant Qualified As Co-Conspirator Admission

Federal Rule of Evidence 801(d)(2)(E) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

Sometimes a co-conspirator admission under this Rule looks like a classic co-conspirator admission. For example, if Carl tells Fred, "Dan and I are going to rob a bank tomorrow, will you drive the getaway car?" the statement looks like a classic co-conspirator admission. Other times, a co-conspirator admission doesn't look like a classic co-conspirator admission but is still admissible under the Rule. For example, in its recent opinion in United States v. Webster, 2010 WL 3784829 (9th Cir. 2010), the Ninth Circuit found that a Western Union check payable to the defendant qualified as a co-conspirator admission.

In Webster,

Undercover officer Mike Gilluly of the Billings Police Department developed a relationship with an informant who made several controlled buys from Richard Todd. In May 2005, Gilluly purchased three ounces of crystal methamphetamine directly from Todd, who was arrested and charged with drug crimes. Additional information led to four more arrests.

One of the arrestees was Lamar Webster, who was charged with (1) conspiracy to possess with intent to distribute methamphetamine, (2) possession with intent to distribute over 500 grams of methamphetamine, (3) money laundering conspiracy, and (4) money laundering. The two money laundering counts against Webster were "based on Webster's alleged receipt of the $300 wire transfer from his co-conspirators."

To prove this fact, the prosecution presented into evidence

a $300 Western Union check payable to "Lamar Webster" issued on December 23, 2003, and cashed at the same Hayward store. The check also identifies Billings, Montana, as the check's place of origin. The check is signed by "Lamar Webster" as payee.

After he was convicted, Webster appealed, claiming, inter alia, that this check was inadmissible hearsay, but the Ninth Circuit disagreed, finding that

The recipient's name is admissible under Federal Rule of Evidence 801(d)(2)(E) as an admission by a party-opponent-a co-conspirator statement made in the course and furtherance of the conspiracy. Testimony established that the senders of the wire transfer were Webster's co-conspirators and the wire transfer was relevant to the conspiracy.

-CM

Sympathy For The Devil?: Court Of Criminal Appeals Of Texas Finds Evidence Of Defendant's Conversion To Satanism Admissible To Prove Future Dangerousness

A defendant has been convicted of murdering a victim in the course of committing or attempting to commit aggravated sexual assault. The prosecution is now trying to get the jury to sentence the defendant to death, and, in an attempt to prove his future dangerousness, it seeks to present evidence that the defendant is a Satanist. How should the court rule? According to the recent opinion of the Court of Criminal Appeals of Texas in Davis v. State, 2010 WL 3782212 (Tex.Crim.App. 2010), such evidence is admissible. I disagree.

The facts in Davis were basically as stated above. The defendant, Irving Davis, was actually initially convicted and sentenced to death in 2002, but the Court of Criminal Appeals of Texas reversed Davis' death sentence in 2007, resulting  in a new punishment hearing in 2008. While on death row, Davis became a Satanist. Before trial,

anticipating that the state would "attempt to offer into evidence expert testimony indicating Defendant's religious beliefs," [Davis] filed a motion in limine asking the trial court to bar testimony on that subject. At the hearing on the motion in limine, defense counsel argued that the state should not be allowed to get into "the issue of satanism" because it was not relevant, it would violate his rights to freedom of religion and freedom of association, and its probative value was outweighed by any prejudicial effect.

In response, the prosecutor claimed that

the state intended to introduce [Davis]'s prison records, writings, drawings, and "a pentagram that is etched into his body that was either carved or burned" to show that, in 2006, [Davis] had declared that he had been a Satanist since 2005. The prosecutor added, "We have evidence that will come in through our expert witness that he will testify about satanists and illegal activities and violent activities that have been committed on the part of satanists." The prosecutor explained that "there is no need for the State to prove that the Defendant himself engaged in all of those illegal violent acts, only that the group is known to do that, and that the Defendant is a member of that group." The prosecutor further stated that [Davis]'s “belief in satanism is being offered as evidence of his character, to show his belief systems” and how they relate to future-dangerousness; the issues of character and future dangerousness "are at the heart of the sentencing phase in a capital murder case." Following the parties' arguments, the trial court granted the motion in limine "until such time as [the state's] expert can establish outside the hearing of the Jury that, in fact, there is a propensity in this organization or this faith or this religion...for illegal activities or an [sic] engaging in violent activities."

Thereafter,

The state's expert witness, Donald Vaughn Haley,...testified on voir dire examination outside the presence of the jury that Satanism advocates violence, as evidenced by the discussion of human sacrifice in The Satanic Bible and the "rituals of destruction" contained in The Satanic Rituals. Haley also gave several examples of people who committed murder and mutilation "in the name of Satan." Over defense counsel's objections on relevance and the First Amendment, the trial court ruled that Haley would be permitted "to testify in the area of the satanic religion" and that "all of that evidence is relevant to the issue of future dangerousness and it is outside the protection of the First Amendment." [Davis] also filed written objections to the court's ruling, arguing that the evidence was "irrelevant" and that its admission violated Rule 403 and his rights of freedom of religion and freedom of association under the First Amendment of the United States Constitution.

Haley subsequently gave in depth testimony about Satanism as it bore upon the issue of Haley's future dangerousness. After the jury again sentenced Davis to die, he appealed, and the Court of Criminal Appeals affirmed, finding (1) that "the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing merely because those beliefs and associations are protected by the First Amendment;" and (2) that Haley's testimony was relevant of Davis' future dangerousness and that its probative value was not substantially outweighed by the danger of unfair prejudice under Texas Rule of Evidence 403.

But what if Davis had made his argument under a different rule of evidence? Texas Rule of Evidence 610 provides that:

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.

If Davis raised this Rule, the problem would have been that the prosecution was using evidence of his Satanism to prove his future dangerousness, not to impeach him. This, however, leads us to Texas Rule of Evidence 404, which precludes the admission of propensity character evidence. As I noted in a previous post,

let's look at the opinion of the Third Circuit in Government of the Virgin Islands v. Petersen, 553 F.2d 324 (3rd CIr. 1977).  There, a Rastafarian man appealed his conviction for two counts of second degree murder by claiming that the trial court erred by precluding him from presenting testimony that Rastafarians believe in nonviolence.  The Third Circuit rejected this argument, finding that,

-"A person may or may not act in accordance with a professed belief; it is the observation of the defendant's behavior over a length of time which is the recognized basis for both reputation and opinion testimony....This longstanding limitation reflects an accommodation between logical relevance on the one hand and the desire to avoid prejudice, confusion, surprise and consumption of trial time on the other. We believe that the appropriate means to elicit opinion testimony under the rule is to inquire directly as to the witness' opinion concerning the relevant character trait of the accused. The district court did not err in refusing to admit the proffered testimony."

In other words, evidence of an individual's religious or anti-religious beliefs should be inadmissible to prove that the individual had a propensity to act non-violently or violently. Thus, because the Texas Rules of Evidence do apply to the sentencing phases of trials in Texas, if Davis had raised Texas Rule of Evidence 404 in response to Haley's testimony, the court should have deemed it inadmissible as propensity character evidence under Texas Rule of Evidence 404.

(For some interesting comments about the opinion, check out this post by Eugene Volokh at The Volokh Conspiracy).

-CM

Sequestered In Memphis: Court Of Criminal Appeals Of Tennessee Sets Forth Rules For Expert/Designated Representative Sequestration

Similar to its federal counterpart, Tennessee Rule of Evidence 615 provides that

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.

-CM