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

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Tuesday, May 13, 2014

Sequestered Assets: Maine Federal Court Finds No Problem With Detective Sitting Next to Prosecutor Throughout Trial

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.

The recent opinion of the United States District Court for the District of Maine in Clark v. United States, 2014 WL 1870699 (D. Me. 2014), does a good job of disentangling Rule 615(b) from Rule 615(c).

In Clark, Matthew G. Clark filed a motion to vacate, set aside or correct his sentence following his conviction of possession of child pornography. Specifically, Clark complained that a detective sat with counsel for the government at trial and provided information to the prosecution only, thereby withholding evidence from him. His argument was that the detective should not have been permitted both to sit with the prosecution at trial and serve as a witness for the prosecution.

According to the court,

the First Circuit has held, pursuant to Fed.R.Evid. 615(b), that case agents who serve as witnesses may not be excluded from trial absent exceptional circumstances. United States v. Charles, 456 F.3d 249, 257–58 (1st Cir.2006) (quoting United States v. Machor, 879 F.2d 945, 953 & n. 2 (1st Cir.1989)) (noting the majority view that the Court's discretion to exclude case agents is "'severely curtailed'"). Petitioner has made no showing of exceptional circumstances or abuse of discretion by the Court in permitting the detective to sit with the prosecution at trial. Furthermore, Petitioner has not shown that the detective shared with the government any evidence that had not been provided to Petitioner. Because Petitioner's underlying claim has no merit, he cannot demonstrate either cause, i.e., that counsel provided ineffective assistance on this point, or prejudice sufficient to surmount the procedural default. 

As noted by the First Circuit in Charles,

Rule 615([c]), which provides for an indispensable person to sit at counsel table, but does not address Rule 615([b]), a separate provision providing for a case agent at counsel table without reference to indispensability. The government notes that the Senate Report on Rule 615 admits that it would be difficult to demonstrate that a case agent is indispensable. The report concluded:  

This problem [of whether to allow the case agent at counsel table] is solved if it is clear that investigative agents are within the group specified under the second exception made in the rule, for "an officer or employee of a party which is not a natural person designated as its representative by its attorney." It is our understanding that this was the intention of the House committee. It is certainly this committee's construction of the rule.

In other words, no showing of indispensability is needed for a representative to be protected from sequestration under Rule 615(b). Instead, a representative can only be excludd if the opposing party can demonstrate exceptional circumstances.

-CM

http://lawprofessors.typepad.com/evidenceprof/2014/05/federal-rule-of-evidence-615provides-that-at-a-partys-request-the-court-must-order-witnesses-excluded-so-that-they-canno.html

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