EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, January 21, 2012

Unsequestered Witness: Southern District Of Florida Finds No Need For New Trial Despite Rule 615 Violation

Federal Rule of Evidence 615 provides that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

So let's say that this witness sequestration rule is violated. What should the court do? According to the recent opinion of the United States District Court for the Southern District of Florida in United States v. McQueen, 2012 WL 163885 (S.D. Fla. 2012), there are 3 options.

In McQueen, Alexander McQueen was convicted of conspiring "to injure, oppress, threaten, and intimidate inmates at [a state prison] in the free exercise and enjoyment of the rights and privileges secured to them by the Constitution and law of the United States, namely, the right to be free from cruel and unusual punishment." Moreover, McQueen and Steven Dawkins were convicted of knowingly falsifying and making false entries in records with the intent to impede, obstruct and influence the investigation and proper administration of a matter within the jurisdiction of the Federal Bureau of Investigation.

After they were convicted, McQueen and Dawkins file a motion for a new trial, claiming a violation of Federal Rule of Evidence 615. Specifically, "[d]uring cross-examination of a Government witness, it was learned that incarcerated Government witnesses had been placed in the same cell together prior to and after testifying at trial, and spoke to each other about the case." The defendants claimed that they were "entitled to a new trial because the Court erroneously denied a motion for mistrial based on a violation of the witness sequestration rule of Federal Rule of Evidence 615."

The Eleventh Circuit disagreed, concluding that

As the Court explained at the time the issue arose during the trial, the Eleventh Circuit has identified three sanctions at a court's disposal when the witness sequestration rule is violated: a citation for contempt; allowing thorough cross-examination before the jury on the facts of the violation; or striking the testimony given—the most serious of the three sanctions. See United States v. Jimenez, 780 F.2d 975, 980 (11th Cir.1986) (citing United States v. Blasco, 702 F.2d 1315, 1327 (11th Cir.1983)). The undersigned applied the standards enunciated in Jimenez, and seeing no "connivance by the witness or counsel to violate the rule,"...found thorough cross-examination about the violation sufficient to cure the violation. The Court sees no reason to deviate from its initial decision now.



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