EvidenceProf Blog

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

Saturday, June 8, 2019

Looking at the Circuit Split Over Whether One or Two Prosecution Case Agents Can be Immunized From Witness Sequestration Under Rule 615(b)

Federal Rule of Evidence 615 states 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.

The purpose of this witness sequestration rule is to prevent later witnesses from hearing the testimony of earlier witnesses and perhaps consciously or unconsciously tailoring their testimony to the testimony of earlier witnesses. For example, assume that there are two eyewitnesses to a murder: Ed and Fred. Assume that Fred recalls the murderer wearing a green shirt and is in the courtroom when Ed testifies that the murderer was wearing a blue shirt. When Fred later testifies, he could consciously choose to testify that the murderer wore a blue shirt so that his testimony matches Ed's testimony. Alternatively, Ed's testimony could corrupt Fred's memory and cause him to testify about a blue shirt because that is now what he "remembers."

This is why Rule 615 allows a party to move to sequester most witnesses. As you can see, though, there are four exceptions. But there is a clear circuit split under the second exception.

In the recent case, United States v. Mario Martell Spencer (1) and Ahmed Osman Farah (2), Defendants, 2019 WL 2367096 (D.Minn. 2019), the defense moved (1) moved to permit defense investigator John Lageson to remain in the courtroom during witness testimony to assist with Farah’s defense, even though Lageson might be called by Farah as a witness at trial; and (2) to sequester all other witnesses.

This motion backfired. The court found that (1) the defense had failed to explain how Lageson was essential to presenting the defense under Rule 615(c); and (2) the prosecution had designated Special Agent Nathan Boyer and Sergeant David Swierzewski as its representatives under Rule 615(b), meaning that they could not be sequestered. According to the court, "[t]his exemption permits government case agents to sit at counsel table throughout a criminal trial."

As support for this conclusion, the court cited two prior opinions of the United States Court of Appeals for the Eighth Circuit allowing the government to designate a single case agent as its representative under Rule 615(b). What this means is I'm not actually sure there was support for the court to allow the prosecution to designate two special agents under Rule 615(b).

Outside of the Eighth Circuit, there's a circuit split on this issue. As the United States District Court for the Middle District of Alabama noted in United States v. McGregor,  2012 WL 235519 (M.D.Ala. 2012),

The circuit courts are divided as to which provision of Rule 615 permits multiple agents. The Fourth and Sixth Circuit Courts of Appeals have limited the government to one representative under Rule 615(b) and one “essential-presence” agent under Rule 615(c). United States v. Pulley, 922 F.2d 1283, 1286 (6th Cir.1991); United States v. Farnham, 791 F.2d 331, 335-36 (4th Cir.1986). By contrast, the Second Circuit Court of Appeals has permitted multiple representatives under Rule 615(b). United States v. Jackson, 60 F.3d 128, 134-35 (2d Cir.1995). The distinction between the two subsections is not merely academic. Rule 615(b) is a mandatory exception, whereas Rule 615(c) requires the government to make a showing that the second agent is essential to the presentation of its case.

It will be interesting to see whether there's an appeal in Farah and whether the Eighth Circuit ultimately rules on the issue of whether the prosecution can immunize one or two case agents from sequestration under Rule 615(b).



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One of the fictions the court has long recognized is the exception granted the 'case agent' from sequestration during testimony. The logic of excluding witnesses until they testify is obvious and has been articulated previously; however, no such rationale has been applied to the exception for the 'case agent' to be present to hear all the witnesses prior to his or her own testimony.

Posted by: Dan Arnold | Apr 21, 2022 6:51:01 PM

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