Monday, May 25, 2020
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.
But can a judge use Rule 615 to do more than sequester witnesses from the courtroom? The recent opinion of the United States District Court for the District of New Mexico in United States v. Baca, 2020 WL 1325118 (D.N.M. 2020), does a deep dive into Rule 615.
According to the court,
Rule 615 seeks to preserve evidence's integrity by preventing one witnesses' testimony from influencing another witness's statements....
Despite witness sequestration's deep origins,...courts vary in their interpretations of modern rule 615's scope. Some courts rely on the rule's literal language - “the court must order witnesses excluded so that they cannot hear other witnesses' testimony,” Fed. R. Evid. 615 - to describe a rule applicable only to hearing another witness' testimony in the courtroom....
Other courts read rule 615 more broadly, extending rule 615's application beyond the courtroom and beyond case-in-chief testimony. Courts have, for instance, concluded that rule 615's prohibition on “hearing” other witnesses' testimony precludes reading transcripts of that testimony....
Other courts, including the United States Court of Appeals for the Tenth Circuit, read rule 615 to prohibit witnesses from discussing testimony and trial even outside the courtroom.
The court then
agree[d] with those courts taking broad approaches to rule 615. Permitting witnesses to overhear the substance of others' testimony in argument or any other form would defeat rule 615's anti-tailoring, anti-fabrication, and anti-collusion aims....The Court s[aw] no great difference between hearing witnesses' recount trial events and testimony, contrary to the Tenth Circuit's sequestration requirements, and hearing that testimony in the courtroom, and between hearing attorneys or other witnesses summarize such testimony in arguments before or after trial, and observing the testimony in trial. In the Court's view, effectuating rule 615's purposes requires the rule's application to opening arguments and similar courtroom discussions.
Finally, the court noted that "[c]ourts also disagree whether rule 615's rationale applies equally to direct and rebuttal witnesses." The court then
adopt[ed] the approach consistent with its attitude toward sequestration during events other than trial testimony, and reasons that the risks of tailoring, fabrication, and collusion do not shrink because a witness takes the stand for rebuttal rather than for a case-in-chief. That, through rebuttal, attorneys hope to address and to potentially undermine opposing witnesses bolsters rather than reduces the reasons for rule 615's extension through rebuttal.