EvidenceProf Blog

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

Thursday, August 10, 2017

Should a Sequestration Order Prevent a Victim-Witness From Conferring With a Victim-Witness Specialist?

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.

Facially, then, Rule 615 is a rule of courtroom sequestration. If Elaine and Felicia are eyewitnesses to a murder and witnesses against the defendant at trial, defense counsel can move to have Elaine excluded from the courtroom when Felicia testifies and vice versa. The concern here is that a later witness might hear the testimony of an earlier witness and, consciously or unconsciously, tailor her testimony to the testimony of the earlier witness (e.g., Felicia might plan on saying that the day of the murder was a sunny day before hearing Elaine testify that it was a cloudy day).

Judges often expand the scope of sequestration under Rule 615. For instance, in United States v. Smith, 2017 WL 3393934 (6th Cir. 2017), the judge issed a "courtroom procedures and decorum" order under Rule 615, which stated that

[i]f witnesses are sequestered, counsel must assure that each witness called...understands that (s)he may not discuss the testimony (s)he expects to give or has given in the matter before the court...[and] should anyone attempt to discuss the testimony (s)he has given or expects to give...(s)he may not engage in such discussion.

So, what happens when a witness violates such an order by speaking to a victim-witness specialist?

In Smith, Devin Smith was convicted of three out of four counts of sex trafficking after an eight-day jury trial. One of the alleged witnesses, M.R.,

repeatedly testified that she did not recall details of a night where she purportedly saw Smith and a few other men go outside with two women, heard two gunshots, and did not see the women again. During the twenty-one minute recess, M.R. spoke with an FBI victim-witness specialist. The specialist had driven M.R. to court that day, and spoke with her during the recess to ask M.R. if she was feeling scared or intimidated. Outside the presence of the jury, Smith's counsel represented to the court that the specialist had told the prosecutor that she had a "come to Jesus" moment with M.R., and that Smith's counsel interpreted this to mean that the specialist told M.R. to change her testimony. In response, the Government informed the court that M.R. told the specialist that she was afraid of Smith and that Smith was intimidating her during her testimony. The Government did not dispute the "come to Jesus" conversation, but argued that the phrase did not mean that M.R. was going to change her testimony. Smith's counsel requested that a record be made of the conversation between M.R. and the specialist. The district court concluded that the specialist was in a "very different category from most people" because her job is to work with victims, and that although "maybe a record should be made...I don't think it's going to change anything."...The district court stated that if necessary, a record of the conversation could be made later but that the court was "not going to close things down to do that right now."... Defense counsel did not ask to make a record of the conversation later in the trial.

After the recess, the prosecutor "re-asked M.R. the questions she previously could not answer. M.R. answered the questions with information incriminating to Smith." Defense counsel was then allowed "to cross-examine M.R. about her conversation with the victim specialist."

Subsequent to being convicted, however, Smith claimed that M.R. should not have even been allowed to testify. The Sixth Circuit disagreed, concluding that

the district court is vested with considerable discretion in determining whether to permit a witness to testify despite violation of a sequestration order. Here, it is not apparent that M.R. received any coaching. Smith emphasizes the "come to Jesus" comment, but both the Government and M.R. disputed that the specialist told M.R. what to say. Indeed, M.R. testified that the specialist simply told her to tell the truth....Additionally, Smith does not argue that the Government intentionally sent the specialist to coach M.R. on her testimony....Most importantly, Smith's counsel was permitted to cross-examine M.R. about her conversation with the specialist.

Because the district court has broad discretion in enforcing sequestration orders and Smith cannot show that M.R.'s conversation with the victim specialist prejudiced his ability to receive a fair trial, we conclude that the district court did not abuse its discretion in permitting M.R. to testify despite violating the sequestration order.

I'm not sure about where I stand on this opinion. I also think it raises a broader question: Should a sequestration order ever prevent a victim/witness from being able to confer with a victim-witness specialist during the course of her testimony? This seems like the classic clash between victims' rights and defendants' rights, and it's tough to say which side has the better of the argument.

-CM

http://lawprofessors.typepad.com/evidenceprof/2017/08/federal-rule-of-evidence-615-provides-that-at-a-partys-request-the-court-must-order-witnesses-excluded-so-that-they-cann.html

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Comments

I think the Sixth Circuit got it right. The defendant got to cross examine over the discussion, and that is more than is typically afforded.

Posted by: FormerAgent | Aug 10, 2017 7:14:52 PM

I think they should not be allowed to confer with the advocate in the middle of testimony. There is too much temptation to offer tips to counter a poor showing.

Posted by: Robert | Aug 14, 2017 3:29:55 PM

Note that the discussion in question would not violate the FRE's 615 since the specialist was not a witness-to-be. Since the prosecutor could, no doubt, try to get the witness to testify truthfully, the prosecutor's specialist should be allowed to do so too.

Posted by: Fred Moss | Aug 16, 2017 3:38:29 PM

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