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Univ. of South Carolina School of Law

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Monday, August 15, 2011

Mommie Dearest: 10th Circuit Finds District Court Erred In Excluding Testimony Of Mother Who Ignored Sequestration Order

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.

So, let's say that a trial court enters an order of sequestration pursuant to Rule 615, but a witness remains in the courtroom during other testimony. But let's say that the witness does this without the knowledge of the party calling her. Should the court allow the witness testify? According to the recent opinion of the Tenth Circuit in United States v. Washington, 2011 WL 3455826 (10th Cir. 2011), the answer is "yes."

In Washington, Deandre Laron Washington was convicted of one count of witness tampering. That "conviction stemmed from Mr. Washington's alleged part in a murder-for-hire scheme wherein he was hired by Ronald Irving to kill a local law enforcement officer prior to that officer testifying in a drug case against Mr. Irving."

At the outset of the trial, the district court invoked the Rule of Sequestration, ordering that "anyone who is in the courtroom, except the parties, who [is] going to be a witness in the case or potentially be a witness must excuse themselves now." themselves now."

Thereafter, Sean Warrior testified as a defense witness. Subsequently,

On cross-examination, the government tried to discredit Sean Warrior's testimony by suggesting that it may have been the product of witness intimidation. In particular, the government asked whether his mother, Ms. Warrior, had been threatened at gunpoint during a home invasion roughly a month prior to trial, implying that he may have been coerced into testifying favorably for the defense.

Terry Warrior, Sean's mother, was in the courtroom for this testimony. Defense counsel was apparently unaware that Terry Warrior was in the courtroom during her son's testimony, and he later tried to call her to "testify to the fact that no threat was made during the robbery, which would serve to undermine the government's suggestion that Sean Warrior's testimony was coerced." The district court, however, precluded her from testifying because she violated the order of sequestration entered pursuant to Federal Rule of Evidence 615.

After he was convicted, Washington appealed, claiming, inter alia, that this ruling was erroneous. In addressing this issue, the Tenth Circuit initially noted that

When a violation of the Rule of Sequestration occurs,..."this alone does not render the witness' [s] testimony inadmissible."....Rather, when a sequestration order is disregarded, "it is within the district court's discretion to admit or exclude the witness's testimony."...However, "[e]xclusion of a witness'[s] testimony is 'an extreme remedy' that 'impinges upon the right to present a defense,' and thus should be employed sparingly."

Some of our sister circuits have indicated that exclusion is appropriate primarily where the witness has remained in court with the "consent, connivance, procurement or knowledge" of the party seeking his testimony,...i.e., where such a party has knowingly or intentionally effectuated a violation of the order.

The Tenth Circuit then noted that "[a]lthough we may not have formally adopted this rule, our precedent indicates that a party's culpability in the violation of a sequestration order is a significant factor in determining whether admission or exclusion of the witness is the proper remedy for the violation." Moreover, it noted that "our circuit has made clear that '[p]robable prejudice should be shown for such exclusion to occur."

Applying these standards to the case before it, the Tenth Circuit thus found that the district court erred in precluding Terry Warrior from testifying because

Although Ms. Warrior was unquestionably present for the testimony of her son, and, as the district court noted, this was the only testimony that would have had any relevance to her own statements, this does not in-and-of-itself warrant exclusion....In this case, the record is devoid of any of the factors noted above that justify exclusion of a witness. There are no indicia of "consent, connivance, procurement or knowledge" of Ms. Warrior's violation by defense counsel,...and the district court never paused to conduct even a semblance of a "probable prejudice" inquiry....Consequently, we agree with Mr. Washington that the district court abused its discretion by "mechanistically exclud[ing] the testimony upon finding a violation of the Rule." 

That said, the court found that this error was harmless and thus affirmed Washington's conviction.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/08/615-us-v-washington-f3d-2011-wl-3455826ca10-okla2011.html

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