Monday, August 27, 2012
Federal Rule of Evidence 615 is a funny little rule of evidence. It 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.
In Geders v. United States, 425 U.S. 80 (1976), the Supreme Court observed that the practice of sequestering witnesses, which goes back to "our inheritance of the common Germanic law," serves two purposes: it "exercises a restraint on witnesses 'tailoring' their testimony to that of earlier witnesses; and it aids in detecting testimony that is less than candid." But is Federal Rule of Evidence 615 in fact a rule of witness sequestration, or is it merely a rule of witness exclusion? That's the topic taken up in the forthcoming article, Following the Rules: Exclusion of Witnesses, Sequestration and "No-Consultation Orders, by Richard Underwood, a professor at the University of Kentucky College of Law.As Professor Underwood notes in the introduction to his piece,
What is the little problem with language when we are dealing with Rule 615? The Rule says exclusion of witnesses. It does not say sequestration of witnesses. As we shall see, many lawyers and judges seem to think these terms mean different things. Other lawyers and judges, and even treatise writers, use the terms interchangeably. This can lead to some unfortunate, and ugly, misunderstandings at trial. And, misunderstandings can lead to distrust, which can hurt clients, and hurt lawyers’ reputations.
So, what are some of these misunderstandings? First, can judges use Rule 615 to preclude witnesses from reviewing transcripts of earlier testimony before they testify? As Professor Underwood points out, that is what the judge did in the Zacarias Mousssaoui prosecution as well as in the George Huguely prosecution (which I discussed here). Or can witnesses themselves confer in between their testimony? Some courts say "no," while other courts, such as the Supreme Court of Kentucky in Woodward v. Commonwealth, 219 S.W.3d 723 (Ky. 2007), conclude that Rule 615 "makes separation in the courtroom mandatory, but makes no mention of witnesses interacting outside the courtroom."
Second, once a witness is on the stand, can the judge use Rule 615 to prevent an attorney from conferring with an already called witness about the substance of the witness’s testimony, the likely cross-examination, or the like? Some courts say "yes," while other courts, like Florida courts, say that Rule 615 grants judges no such authority. That said, Florida courts do find that judges can prevent such conferring pursuant to Florida's counterpart to Federal Rule of Evidence 611, which allows judges to "exercise reasonable control over the mode and order of examining witnesses and presenting evidence...."