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Univ. of South Carolina School of Law

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Tuesday, May 6, 2014

Sequestered in Alabama: Court of Criminal Appeals of Alabama Finds No Problem With Denial of Later Sequestration Motion

Similar to its federal counterpartAlabama Rule of Evidence 615 provides that

At the request of a party the court may 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,

(2) an officer or employee of a party which is not a natural person designated as its representative by its attorney,

(3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or

(4) a victim of a criminal offense or the representative of a victim who is unable to attend, when the representative has been selected by the victim, the victim's guardian, or the victim's family.

Rule 615 makes no mention of timing. So, what happens if a party makes a sequestration motion after some, but not all, witnesses have testified? That was the question addressed by the Court of Criminal Appeals of Alabama in Wiggins v. State, 2014 WL 1744091 (Ala.Crim.App. 2014).

In Wiggins, David Wiggins was charged with murdering Kyle Cavins during the course of a robbery and robbing Jonathan Beasley. At trial, after the State's first two witnesses completed their testimony, the following occurred:  

[Defense counsel]: Your Honor, at this time I would invoke the rule.  

The Court: It's too late.

The Rule in question was Rule 615, and the judge's refusal to sustain defense counsel's invocation of it formed the partial basis for Wiggins's appeal. 

In addressing Wiggins's appeal, the court noted that there was no Alabama precedent on the issue but that

The Oklahoma Court of Criminal Appeals has specifically addressed whether the denial of a untimely motion to invoke the witness-sequestration rule constituted reversible error....In finding no reversible error, the court stated:  

"Appellant requested the rule after the State had called the second of its three witnesses. The trial court denied the request telling Appellant it was too late. In Kelsey v. State, 744 P.2d 190, 193 (Okla.Cr.1987), the defense did not request the rule of sequestration until the fourth of six state witnesses. This Court held that the better practice would have been for the trial court to either invoke the rule upon request or grant appropriate exceptions consistent with the exercise of sound discretion. However, as the request of defense counsel was not timely and no showing of prejudice was made, we refused to find reversible error. The rationale of Kelsey is applicable to the present case. It would have been better for the trial court to either invoke the rule of sequestration or grant an appropriate exception. However, in light of defense counsel's failure to make a timely request and in the absence of any showing of prejudice by Appellant, we cannot say that reversible error occurred." Davis v. State, 792 P.2d 76, 85 (Okla.Crim.App.1990). See also Jay M. Zitter, J.D., Prejudicial Effect of Improper Failure to Exclude From Courtroom or to Sequester or Separate State's witnesses in Criminal Case, 74 A.L.R.4th 705 (1989); J.A. Bock, Effect of Witness' Violation of Order of Exclusion, 14 A.L.R.3d 16 (1967). There is no indication that Wiggins was prejudiced by the circuit court's failure to grant his untimely motion to invoke the witness-sequestration rule. Accordingly, Wiggins is due no relief on this claim.

Applying this precedent, the Wiggins court concluded that

There is no indication that Wiggins was prejudiced by the circuit court's failure to grant his untimely motion to invoke the witness-sequestration rule. Accordingly, Wiggins is due no relief on this claim.

-CM

http://lawprofessors.typepad.com/evidenceprof/2014/05/similar-to-its-federal-counterpartalabama-rule-of-evidence-615provides-that-at-the-request-of-a-party-the-court-may-order-w.html

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