Saturday, March 26, 2011
Federal 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 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.
D.C. does not have codified rules of evidence, but it has adopted Rule 615 in its case law. And, as the language of Rule 615 and the recent opinion of the D.C. Court of Appeals in Marshall v. United States, 2011 WL 1044594 (D.C. 2011) (Download Marshall), make clear Rule 615 is not self-executing but instead requires the request of a party.
In Marshall, Bruce E. Marshall was convicted of aggravated assault while armed, mayhem while armed, and related offenses. After he was convicted, Marshall appealed, claiming, inter alia, that two witnesses for the prosecution were present in the courtroom during a pretrial hearing at which a detective testified about the case; he argued that the prosecutor representing the government at the pretrial hearing should have recognized the two men as government witnesses and taken steps to keep them out of the courtroom.
The D.C. Court of Appeals found that Marshall's argument was governed by Federal Rule of Evidence 615. And, according to the court, "[t]he rule on witnesses...is not self-executing. The federal courts have consistently interpreted Rule 615 of the Federal Rules of Evidence to require a party to request the sequestration of witnesses 'in order to claim any protection' from the rule." The court thereafter explained the rationale for this requirement, noting that
Particularly in a busy urban court system like ours, in which trial courtrooms are often filled with people unfamiliar to the presiding judge, the parties are in a far superior position to know whether anyone present in the courtroom is a potential witness in the case and to bring the issue to the judge's attention. Indeed, only through the entry of an order invoking the rule on witnesses can a trial judge exercise his or her discretion to set the specific contours of the rule as necessary to effectuate its purpose in light of the circumstances presented in a particular case. The rule on witnesses thus is in effect only if the trial court, acting on its own or at the request of a party, has affirmatively invoked the rule.
Therefore, because Marshall did not request sequestration, his appeal was without merit.