## Facts

- Federal defendants were prosecuted for kidnapping for ransom and murdering five people in the Los Angeles area.
- The government moved in limine to allow murder victims’ family members, including those expected to testify, to attend the entire trial.
- The district court denied the request and adopted a categorical policy excluding any victim or victim-relative who would testify from observing the trial until called; after testifying, the witness could remain. The same approach applied in the penalty phase.
- The district court stated the policy was intended to prevent collusive testimony and maintain courtroom decorum.
- The government sought mandamus relief in the court of appeals under the Crime Victims’ Rights Act (CVRA), asserting victims’ statutory right not to be excluded from public proceedings.

## Issues

1. Whether the CVRA permits a district court to exclude all victim-witnesses under a blanket sequestration policy without individualized findings.
2. Whether a victim-witness may be excluded only upon a clear and convincing evidentiary finding that the victim’s testimony would be materially altered by hearing other testimony and after considering reasonable alternatives.
3. Whether mandamus under the CVRA was an appropriate mechanism to correct the district court’s exclusion policy during an ongoing criminal trial.

## Decision

- The Ninth Circuit granted the mandamus petition in part and remanded.
- The court directed the district court to reconsider its exclusion policy under the CVRA rather than applying a categorical rule.
- The district court was required to determine, for any victim-witness proposed for exclusion, whether there was clear and convincing evidence the testimony would be materially altered by observing other testimony.
- The district court was also required to make every effort to permit the fullest attendance possible and to consider reasonable alternatives to exclusion.

## Legal Principles

- The CVRA gives crime victims a right not to be excluded from public court proceedings, including trial, even when the victim will testify.
- A victim-witness may be excluded only if the court finds by clear and convincing evidence that the victim’s testimony would be materially altered by hearing other testimony at the proceeding.
- Even when exclusion is otherwise permitted, the court must make every effort to allow the fullest attendance possible and must consider reasonable alternatives to exclusion.
- Federal Rule of Evidence 615’s sequestration regime yields to a statute authorizing a person’s presence; the CVRA supplies such statutory authorization for crime victims.
- CVRA mandamus provides an avenue for expedited appellate review to enforce victims’ statutory rights during a criminal case.

## Conclusion

The Ninth Circuit held that the CVRA does not allow blanket sequestration of victim-witnesses; exclusion requires individualized, clear-and-convincing findings of likely material alteration of testimony and consideration of alternatives that maximize victim attendance while protecting trial fairness.


In re Mikhel, 453 F.3d 1137 (9th Cir. 2006)