EvidenceProf Blog

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

Sunday, January 31, 2010

Private Eyes Are Watching You: Sixth Circuit Finds Sequestration Of Defense Private Investigator Proper Under Rule 615

Federal Rule of Evidence 615 provides that

At the request of a party the court shall 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, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.

You are a trial judge and have decided to order witnesses excluded. Defense counsel argues that the order should not apply to the defense's private investigator because the investigator interviewed several government witnesses and could provide immediate insight to their cross-examinations if allowed to remain in the courtroom. How should you rule under Federal Rule of Evidence 615(3)? That was the answer facing the Sixth Circuit in its recent opinion in United States v. McClendon, 2010 WL 272878 (6th Cir. 2010).

The facts in McClendon were as listed above, with  Brian McClendon on trial for offenses related to his role in the robbery of an armored car guard at a Wal-Mart store and a subsequent drug conspiracy funded by the fruits of that robbery. After defense counsel asked that the private investigator be allowed to remain in the courtroom, the District Court denied this request, instead choosing to provide McClendon's counsel with frequent breaks to discuss the case with the investigator and allow the investigator to obtain transcripts from the other witnesses.

After McClendon was convicted, he appealed on this and other grounds, and the Sixth Circuit found that the district court did not err in this regard.  According to the Sixth Circuit,

We find that the District Court's modifications allowed McClendon's investigator to participate significantly in his defense and that the investigator's presence was not "essential." These frequent breaks provided ample opportunity for the private investigator to assist McClendon's counsel. Additionally, the Court gave the investigator materials, such as access to the transcripts of witness testimony, that allowed him to aid defense counsel in the impeachment of witnesses and strategic defense planning. The District Court acted appropriately within its discretion. The decision to exclude the private investigator, and instead provide other modifications, did not prejudice McClendon's right to a fair trial.

I agree with the Sixth Circuit's conclusion and think that this was a good example of a court making reasonable accommodations despite finding that Federal Rule of Evidence 615(3) was inapplicable. Of course, this begs the question of what the Sixth Circuit would have done if the district court did not make such accommodations. I have seen defendants make Fifth and Sixth Amendment challenges to trial court decisions under Federal Rule of Evidence 615 (see, e.g., United States v. Edwards, 526 F.3d 747 (11th Cir. 2008), but I have never seen them succeed. I wonder what would happen, though, in the case of a person whose presence is very important but not quite essential?



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