Presentation of evidence - Exclusion of witnesses

Learning Outcomes

This article explains how the exclusion (sequestration) of witnesses operates under Federal Rule of Evidence 615 for MBE purposes, including:

• When a court must and may exclude witnesses from the courtroom, and how to spot mandatory versus discretionary sequestration in exam fact patterns.
• Which individuals are exempt from exclusion—natural-person parties, designated representatives of entities, essential witnesses, and statutorily authorized persons—and the policy reasons that justify keeping them in the courtroom.
• How courts determine whether a proposed witness is “essential” to presenting a claim or defense, with special attention to experts, case agents, and interpreters.
• How sequestration orders operate in practice, including common terms restricting witnesses’ physical presence, access to transcripts or media, and conversations about testimony during an ongoing proceeding.
• The range of consequences and sanctions for violating an exclusion order—contempt, impeachment, limiting or striking testimony, and mistrial—and how courts choose among them on abuse-of-discretion review.
• Typical MBE-style traps, such as improper exclusion of exempt persons, denial of a proper sequestration request, or automatic disqualification of a witness who violated an order.

MBE Syllabus

For the MBE, you are required to understand presentation-of-evidence rules on witness exclusion, with a focus on the following syllabus points:

• The purpose of excluding witnesses and its relationship to fact-finding
• The mandatory nature of exclusion upon request under FRE 615
• The specific exceptions for parties, designated representatives, essential witnesses, and statutorily protected persons
• The scope of sequestration orders and consequences of violations

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Under FRE 615, which of the following persons may a court NOT exclude from the courtroom upon a party's request?
   1. An expert witness expected to testify later in the trial.
   2. A fact witness who has already completed their testimony.
   3. An officer or employee of a corporate party designated as its representative.
   4. The lead investigator who worked closely with the prosecutor throughout the case.
2. The primary purpose of excluding witnesses under FRE 615 is to:
   1. Prevent witnesses from becoming confused by conflicting testimony.
   2. Prevent witnesses from tailoring their testimony to that of earlier witnesses.
   3. Expedite the trial process by reducing cumulative testimony.
   4. Protect sensitive information from being revealed prematurely.
3. Plaintiff sues Defendant Corp. for breach of contract. Plaintiff requests that all witnesses be excluded from the courtroom during testimony. Defendant Corp. designates its CEO, who has personal knowledge of the contract negotiations, as its representative at trial. The court must allow which person to remain?
   1. The Plaintiff only.
   2. The CEO only.
   3. Both the Plaintiff and the CEO.
   4. Neither the Plaintiff nor the CEO, if properly requested by the opposing party.

Introduction

Federal Rule of Evidence 615, often referred to as “The Rule” concerning witness exclusion or sequestration, addresses the practice of preventing witnesses from hearing the testimony of other witnesses during a trial or hearing. The core principle is to safeguard the integrity of witness testimony by minimizing the possibility that a witness might consciously or unconsciously change, “shade,” or tailor their account based on what they hear others say.

The rule generally requires the court, at a party's request, to order witnesses excluded so they cannot hear other witnesses' testimony. The court may also issue such an order on its own initiative. However, the rule recognizes certain categories of persons who cannot be excluded. Understanding those exceptions, and the practical operation of the rule, is essential for evidence questions on the MBE.

Key Term: Exclusion of Witnesses (Sequestering)
The process under FRE 615 whereby, typically at a party's request, prospective witnesses are ordered by the court to remain outside the courtroom so they do not hear the testimony of other witnesses.

Exclusion of witnesses is not about punishing or distrusting witnesses; it is a truth-finding device. If each witness testifies from their own memory rather than echoing what they have just heard, the trier of fact can better assess inconsistencies, credibility, and the independent value of each account.

Sequestration also relates to the court’s general power to control the mode and order of examining witnesses under FRE 611. Together, these rules give the judge tools to ensure fairness and avoid undue influence on testimony.

The General Rule – FRE 615

FRE 615 states that at a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony. Alternatively, the court may order exclusion on its own.

Two key points for exam purposes:

• If any party properly requests exclusion, the court has no discretion about whether to grant the request. Exclusion is mandatory (subject only to the listed exceptions).
• Even without a request, the court has discretion to sequester witnesses sua sponte if it believes doing so will aid the truth-finding process.

The core rationale is to prevent witnesses from being influenced by the testimony of others, thereby advancing the discovery of truth by ensuring more independent recollections.

On the MBE, if you see a party ask to “invoke the rule” or “ask that witnesses be excluded,” think FRE 615: the default is that all witnesses (other than exempt persons) must be kept out of the courtroom until they are called to testify.

Key Term: Sequestration Order
A court directive, usually under FRE 615, requiring witnesses (other than exempt individuals) to remain outside the courtroom and not learn about other witnesses’ testimony until their own testimony is complete.

Mandatory vs. Discretionary Exclusion

FRE 615 has both mandatory and discretionary aspects:

• Mandatory: When a party requests exclusion, the court must sequester witnesses, unless they fall within an exemption.
• Discretionary: The court may sequester witnesses even without a request, and it has discretion over how strictly to enforce the order (for example, whether to forbid witnesses from discussing testimony with each other during trial).

The judge may also tailor the order, for example:

• Excluding all fact witnesses but allowing one expert to remain as an “essential” person; or
• Excluding witnesses only during the portion of proceedings where others are testifying, then allowing them to remain afterward if they will not testify further.

For MBE purposes, when the facts say “the judge denied the request to exclude witnesses,” ask whether any exception to sequestration applies. If no exception applies, denying a proper request is error.

Persons Exempt from Exclusion

FRE 615 explicitly exempts certain categories of persons from an exclusion order. These individuals cannot be prevented from remaining in the courtroom, even if they will later testify.

1. A Party Who Is a Natural Person

   A party to the lawsuit who is an individual cannot be excluded. This reflects both the rule text and the defendant’s constitutional right to be present in a criminal case.

   • In a civil case, each individual party may remain in court.
   • In a criminal case, the defendant (as a natural person party) cannot be sequestered from the proceedings.

2. An Officer or Employee of a Party That Is Not a Natural Person (Designated Representative)

   For parties like corporations or government agencies, one officer or employee designated as the party's representative at trial cannot be excluded. This allows the entity to effectively participate in the trial through its chosen agent.

   • Typically, the entity’s attorney designates this representative (for example, a corporate CFO or government case agent).
   • Only one such representative is guaranteed under the rule, unless a statute or separate order allows more.

Key Term: Designated Representative
Under FRE 615, an officer or employee of a non-natural-person party (such as a corporation or government agency) who is designated to remain in court to represent the entity’s interests, even when other witnesses are excluded.

1. A Person Whose Presence Is Shown to Be Essential to Presenting the Party's Claim or Defense

   This category covers individuals whose presence is necessary to help counsel manage and present the case. Common examples include:

   • Expert witnesses who must hear other testimony to form or refine their opinions or to assist counsel;
   • The government’s “case agent” (e.g., the lead detective or federal agent) in a criminal prosecution who helps the prosecutor with the order of proof and exhibits;
   • A translator or specialist whose in-court assistance is necessary.

   The party wishing to keep such a person present bears the burden of demonstrating why the person is essential. The judge has genuine discretion here: FRE 615 does not automatically treat all experts or case agents as essential, but many courts routinely find them to be so.

Key Term: Essential Witness
A witness whose presence during other testimony is shown to be necessary to help a party present its claim or defense—for example, an expert who needs to hear testimony or a case agent assisting the prosecution.

1. A Person Authorized by Statute to Be Present

   Certain statutes grant specific individuals the right to be present during court proceedings, notwithstanding sequestration orders. FRE 615 respects these statutory mandates.

   A common example is crime-victim legislation that gives victims the right to attend the trial of the accused. Such statutes may themselves contain limits (for example, allowing exclusion if the victim’s presence would materially alter their testimony), but FRE 615 recognizes that, as a starting point, those statutorily authorized persons are exempt from exclusion.

Worked Example 1.1

In a complex fraud trial against Megacorp, the prosecution plans to call numerous fact witnesses. Megacorp designates its Chief Financial Officer (CFO) as its representative. The prosecution requests the exclusion of all witnesses. Can the court exclude Megacorp's CFO?

Answer:
No. Under FRE 615, an officer or employee of a party that is not a natural person, when designated as the party's representative, cannot be excluded. The CFO falls into this category, so the sequestration order must carve out the CFO.

Worked Example 1.2

During a personal injury trial, Plaintiff calls Witness A. Defendant requests that Witness B, Plaintiff's next scheduled witness, be excluded during Witness A's testimony. Plaintiff objects, stating that Witness B needs to hear Witness A to properly frame her own testimony. Should the court exclude Witness B?

Answer:
Yes, most likely. Defendant properly requested exclusion under FRE 615, making exclusion mandatory unless Witness B falls under an exception. Plaintiff’s assertion that Witness B needs to hear prior testimony “to frame her own testimony” directly contradicts the purpose of sequestration. Witness B does not appear to be a party, a designated representative, an essential person in the FRE 615 sense, or statutorily authorized to remain. The court should exclude her.

Additional Illustrations of the Exempt Categories

To solidify how the exceptions work, compare the following scenarios:

Worked Example 1.3

In a federal drug prosecution, the government moves to sequester all witnesses. The prosecutor also announces that Agent D, the lead DEA investigator, will be the government’s designated representative. The defense objects, arguing that Agent D is both a witness and a government employee and must therefore be excluded.

Answer:
The objection should be overruled. The government, as a non-natural-person party, may designate one officer or employee as its representative. Agent D may serve as the designated representative and remain in court, even though he will also testify. FRE 615 expressly permits this.

Worked Example 1.4

In a civil products-liability case, Plaintiff designates a medical expert. Plaintiff asks that the expert remain in the courtroom throughout the trial to hear all testimony. Defendant moves to exclude all witnesses under FRE 615. What should the court do?

Answer:
The court must grant the sequestration request in general but has discretion to find that the expert’s presence is “essential” to presenting Plaintiff’s case. If Plaintiff shows that the expert needs to hear the testimony (for example, to respond to defense experts or evaluate complex factual issues), the court may treat the expert as an essential witness and permit the expert to remain in the courtroom while other fact witnesses are excluded.

Worked Example 1.5

In a criminal trial, the victim of the charged assault wants to sit in the courtroom throughout the trial. The state has enacted a statute giving crime victims the right to attend any criminal proceeding related to the crime. The defense moves under FRE 615 to exclude all witnesses, including the victim. How should the court rule?

Answer:
The court must deny the motion as to the victim, because FRE 615 exempts persons authorized by statute to be present. The victim may remain in the courtroom under the state victim-rights statute, unless a separate statutory provision allows the court to exclude the victim to protect the integrity of the victim’s own testimony.

Scope of a Sequestration Order

On the MBE, FRE 615 issues are not limited to “who can stay in the courtroom.” You should also understand what a sequestration order covers and how strictly it is applied.

A typical order will include the following elements:

• Physical exclusion from the courtroom: Witnesses (other than exempt persons) are required to remain outside the courtroom until called to testify and may be directed not to re-enter after testifying if they may be recalled.
• No exposure to other testimony: The court may instruct sequestered witnesses not to read transcripts, watch recordings, or otherwise learn the content of earlier testimony.
• No discussion of testimony: Witnesses may be instructed not to discuss their testimony—or others’ testimony—with anyone, sometimes including lawyers or other witnesses, until their own testimony is complete.

FRE 615 itself speaks of exclusion so that witnesses “cannot hear” other testimony. Courts often interpret this to allow reasonable measures to prevent indirect exposure as well.

Important nuances:

• FRE 615 applies to witnesses, meaning people who may testify. Lawyers are not witnesses and are not sequestered.
• Exempt persons (parties, designated representatives, essential witnesses, and statutorily authorized individuals) may not be excluded, but the court can still instruct them not to discuss testimony with others.
• The rule applies at trials and evidentiary hearings, not to grand jury proceedings. Sequestration at depositions is governed by civil procedure rules, not FRE 615.

Scope and Consequences of Violation

The exclusion order typically applies not just to being physically present in the courtroom, but also to obtaining information about other testimony through means such as reading transcripts, watching recordings, or discussing testimony with others outside the courtroom. Violations, therefore, can include:

• A witness slipping into the courtroom despite the order;
• A witness reading trial transcripts or media reports about prior testimony; or
• A witness being coached with detailed summaries of prior testimony.

If a witness violates an exclusion order, the trial judge has discretion in fashioning a remedy. Potential remedies include:

• Holding the witness in contempt of court;
• Allowing the opposing counsel to cross-examine the witness about the violation to impeach credibility (for example, suggesting that the witness tailored testimony after hearing others);
• Striking the witness's testimony in whole or in part; or
• Declaring a mistrial in extreme cases where the violation causes significant prejudice that cannot be cured.

The choice of remedy depends on several considerations, including:

• Whether the violation was knowing or intentional, and whether the witness (or a party) is at fault;
• The degree of prejudice to the opposing party;
• Whether a lesser sanction (such as a strong credibility instruction or impeachment) can cure the harm.

Striking testimony or declaring a mistrial is a drastic remedy, usually reserved for significant, prejudicial violations—especially where a party or counsel orchestrated or tolerated the violation.

From an exam standpoint, remember:

• A violation of a sequestration order does not automatically disqualify the witness from testifying.
• The trial court has broad discretion in imposing sanctions, and appellate courts generally review such rulings for abuse of discretion.

Key Term: Sequestration Order
A court order directing that witnesses remain outside the courtroom and not be exposed to other testimony until their own testimony is complete, enforceable through a range of sanctions if violated.

Summary

FRE 615 provides a mechanism to prevent witnesses from hearing each other's testimony, aiming to preserve the integrity and independence of their accounts. Exclusion is mandatory upon a party's request, though the court can also order it on its own initiative. Key exceptions exist for natural-person parties, designated representatives of entity parties, persons essential to presenting a case, and those authorized by statute to be present (such as crime victims under victim-rights laws).

The scope of sequestration typically extends beyond physical presence to include restrictions on witnesses’ access to testimony in other forms and on their communication with others about the case. Violations do not automatically disqualify testimony, but they can result in sanctions ranging from impeachment to contempt, striking testimony, or, in extreme situations, mistrial.

Understanding who can be excluded, who cannot, and the consequences of violating an exclusion order is important for analyzing MBE fact patterns involving witness sequestration.

Key Point Checklist

This article has covered the following key knowledge points:

• FRE 615 governs the exclusion (sequestering) of witnesses at trials and evidentiary hearings.
• Purpose: To prevent witnesses from tailoring their testimony based on others’ testimony and to ensure independent recollections.
• At a party’s request, exclusion of witnesses is mandatory, subject only to the rule’s four explicit exemptions.
• Exempt persons include:
  • Parties who are natural persons;
  • Designated representatives of entity parties (one officer or employee);
  • Persons whose presence is essential to presenting a claim or defense; and
  • Persons authorized by statute to be present (e.g., crime victims under victim-rights statutes).
• The court may also sequester witnesses on its own initiative and may tailor the scope of the sequestration order.
• Sequestration orders can cover not only physical presence in the courtroom but also exposure to testimony through transcripts, recordings, or discussions.
• Violations of an exclusion order do not automatically bar a witness from testifying; the trial court has discretion in choosing appropriate sanctions.
• Possible sanctions include contempt, impeachment based on the violation, striking testimony, and, in extreme cases, mistrial.
• Trial courts’ decisions about sequestration and sanctions are generally reviewed for abuse of discretion.

Key Terms and Concepts

• Exclusion of Witnesses (Sequestering)
• Sequestration Order
• Designated Representative
• Essential Witness