The Sequester: Court of Appeals of Kentucky Applies Rule 615 to a Non-Witness

Similar to its federal counterpart, Kentucky 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 on 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; or

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

As its language makes clear, Rule 615 only allows for the sequestration of witnesses. So, what happens if a judge orders witnesses sequestered, a non-witness affiliated with a party remains in the courtroom, and that non-witness then informs prospective witnesses about prior testimony? That was the dilemma addressed by the Court of Appeals of Kentucky in its recent opinion in Sturgill v. Sturgill, 2014 WL 891277 (Ky.App. 2014).

Sturgill involved a divorce action. Before a final hearing for the dissolution of the marriage was held, "the trial judge ordered the witnesses who were to testify to leave the courtroom pursuant to Kentucky Rules of Evidence (KRE) 615." While Mr. Sturgill's witnesses left the courtroom, his counsel instructed two people to remain; one of those people was Barbara Bohannon.

After Ms. Sturgill concluded her case in chief, her counsel informed the court that one of the witnesses, Neal Oren, observed Ms. Bohannon in the hallway talking to Mr. Sturgill's witnesses about Ms. Sturgill's testimony. Counsel for both parties and the trial judge questioned Mr. Oren about what he heard. He testified that he heard Ms. Bohannon state that the pictures used as exhibits looked staged and that Ms. Bohannon said something about $170,000.

Ms. Bohannon was then called to the witness and corroborated Oren's testimony. Ms. Sturgill's attorney thus moved to have these witnesses excluded, and the court granted the motion. 

Mr. Sturgill later appealed, prompting the Court of Appeals of Kentucky to note that

The specific purpose of the separation of witnesses rule is to prevent witnesses from hearing the testimony of other witnesses:  

The reason for the adoption of the rule is to prevent the witnesses excluded from hearing the testimony of other witnesses with the possible result that the testimony of the others might lead the witness to answer in such manner as to conform with other testimony, even though, as is often the case, the witness herself is not conscious of this subtle influence.  Smith v. Miller, 127 S.W.3d 644, 646 (Ky.2004).

The court then concluded that

Although KRE 615 does not contemplate this specific scenario, a non-witness who discusses Ms. Sturgill's testimony with witnesses waiting to testify and who are outside the courtroom, the trial judge has discretion over evidentiary matters. In this case, the judge questioned Mr. Oren and Ms. Bohannon and found that Mr. Sturgill's witnesses had been tainted. We find no error.

-CM