Presentation of evidence - Exclusion of witnesses

Learning Outcomes

This article addresses the rule governing the exclusion (or sequestration) of witnesses during trial under Federal Rule of Evidence 615. After reading this article, you will understand the purpose of witness exclusion, when a court must exclude witnesses upon a party's request, which persons cannot be excluded, and the potential consequences of violating an exclusion order. This knowledge will help you analyze MBE questions involving witness sequestration.

MBE Syllabus

For the MBE, you are expected to know the rules concerning the presentation of evidence, including the exclusion of witnesses. Specifically, you should be prepared to:

  • Identify the purpose of excluding witnesses from the courtroom.
  • Recognize when witness exclusion is mandatory upon a party's request under FRE 615.
  • Identify the categories of persons who are exempt from an exclusion order.
  • Understand the scope and potential consequences of violating an exclusion order.

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. The core principle is to safeguard the integrity of witness testimony by minimizing the possibility that a witness might consciously or unconsciously 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 these exceptions and the operation of the rule is essential for evidence-based 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.

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. The rule's application is generally mandatory upon request, leaving little room for judicial discretion regarding whether to exclude, although discretion remains regarding the scope and enforcement.

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

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:

  1. A Party Who Is a Natural Person: A party to the lawsuit who is an individual cannot be excluded. This reflects the fundamental right of a party to be present during their own trial.
  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.
  3. A Person Whose Presence Is Shown by a Party to Be Essential to Presenting the Party's Claim or Defense: This category typically includes individuals like expert witnesses needed to advise counsel on the presentation of the case or the case agent (e.g., the lead detective) in a criminal prosecution who is needed to assist the prosecutor. The party wishing to keep such a person present bears the burden of demonstrating their essential nature.
  4. A Person Authorized by Statute to Be Present: Certain statutes might grant specific individuals (e.g., crime victims) the right to be present during court proceedings. FRE 615 respects these statutory mandates.

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(b), an officer or employee of a party that is not a natural person, when designated as the party's representative by its attorney, cannot be excluded. The CFO falls into this category.

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 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 argument that Witness B needs to hear Witness A "to properly frame her own testimony" directly contravenes the purpose of the rule, which is to prevent witnesses from tailoring testimony. Witness B does not appear to be a party, a designated representative, essential for presenting the claim (in the sense meant by the rule, like an expert advising counsel), or statutorily authorized to be present.

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 or discussing testimony with others outside the courtroom.

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).
  • Striking the witness's testimony entirely.
  • Declaring a mistrial (in severe cases).

The choice of remedy depends on the circumstances, including whether the violation was intentional and the degree of prejudice caused. Striking testimony is a drastic remedy generally reserved for significant, prejudicial violations.

Key Term: Designated Representative Under FRE 615(b), an officer or employee of a non-natural person party (like a corporation) chosen by the party's attorney to remain in court to represent the entity's interests, despite a general witness exclusion order.

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 sua sponte. Key exceptions exist for parties who are natural persons, designated representatives of entity parties, persons essential to presenting a case, and those authorized by statute to be present. Violation of an exclusion order can lead to various sanctions, determined at the court's discretion.

Key Point Checklist

This article has covered the following key knowledge points:

  • FRE 615 governs the exclusion (sequestering) of witnesses.
  • Purpose: To prevent witnesses from tailoring their testimony based on others'.
  • Exclusion is mandatory upon party request, or discretionary by the court.
  • Exempt persons: parties (natural persons), designated representatives (entities), essential persons, statutorily authorized persons.
  • Violation of an exclusion order can result in sanctions like contempt, impeachment, striking testimony, or mistrial.
  • The trial court has discretion in choosing the appropriate remedy for a violation.

Key Terms and Concepts

  • Exclusion of Witnesses (Sequestering)
  • Designated Representative
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