Private Eyes, Take 2: Tenth Circuit Case Reveals Different Treatments Of Private Detectives And Governmental Case Agents Under Rule 615

A few weeks ago, I posted an entry about Federal Rule of Evidence 615, which 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.

That post dealt with the recent opinion in United States v. McClendon, 2010 WL 272878 (6th Cir. 2010), in which the Sixth Circuit found, inter alia, that defense counsel's private investigator was not an "essential" person under Rule 615(3). The recent opinion of the Tenth Circuit in United States v. Lott, 2010 WL 529310 (10th Cir. 2010), reveals how courts treat governmental case agents under Rule 615 and raises questions about the Rule's fairness.

In Lott, Johnny Marton Lott sought a certificate of appealability from the Tenth Circuit to challenge the district court's denial of his motion to vacate, set aside, or correct his sentence for various drug-related crimes. Lott alleged, inter alia, that his attorney rendered ineffective assistance by failing to seek sequestration of the government's case agent, Detective Phil Long, during his trial under Federal Rule of Evidence 615. According to the Tenth Circuit,

The Rule requires courts to sequester witnesses at the request of a party, but contains exceptions for “an officer or employee of a party which is not a natural person designated as its representative by its attorney” and “a person whose presence is shown by a party to be essential to the presentation of the party's cause.” Fed.R.Evid 615(2)-(3). Detective Long, as the government's case agent and “the person most knowledgeable about the facts,” Dist. Ct. Op. at 7, would have fallen in either or both of these categories, had Mr. Lott's counsel made a motion under Rule 615. Therefore, counsel's performance on this issue was not deficient, and thus Mr. Lott cannot establish that he received ineffective assistance of counsel.

According to the Notes of Committee on the Judiciary, Senate Report No. 93-1277, which accompanied Rule 615, however, Long likely did not fall under Rule 615(3). That Report indicated that

Many district courts permit government counsel to have an investigative agent at counsel table throughout the trial although the agent is or may be a witness. The practice is permitted as an exception to the rule of exclusion and compares with the situation defense counsel finds himself in--he always has the client with him to consult during the trial. The investigative agent's presence may be extremely important to government counsel, especially when the case is complex or involves some specialized subject matter. The agent, too, having lived with the case for a long time, may be able to assist in meeting trial surprises where the best-prepared counsel would otherwise have difficulty. Yet, it would not seem the Government could often meet the burden under rule 615 of showing that the agent's presence is essential. (emphasis added). Furthermore, it could be dangerous to use the agent as a witness as early in the case as possible, so that he might then help counsel as a nonwitness, since the agent's testimony could be needed in rebuttal. Using another, nonwitness agent from the same investigative agency would not generally meet government counsel's needs.

This problem 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. (emphasis added)

In other words, a governmental case agent likely does not qualify under Rule 615(3), but he does qualify under Rule 615(2) because he is the officer or employee of a party which is not a natural person -- the government. Conversely, as the Sixth Circuit found in McClendon, a private investigator hired by defene counsel likely does not qualify under Rule 615(3), and he does not qualify under Rule 615(2) because he is the employee of a natural person.

So, is there  justification for treating a governmental case agent differently from defense counsel's private investigator? According to the aforementioned Notes of Committee on the Judiciary, Senate Report No. 93-1277, the government's situation with its case agent compares with defense counsel's situation with his client. But is that really the case? Presumably, the case agent knows most or all of the details of the prosecution case, from forensic evidence to proposed testimony. Conversely, the defendant knows his proposed testimony and some of the details of his case, but I would argue that he knows much less than a governmental case agent or a private investigator hired by defense counsel. In McClendon, defense counsel argued that his private investigator interviewed several government witnesses and could have provided immediate insight to their cross-examinations if allowed to remain in the courtroom. Could the typical defendant provide a similar service?

-CM