MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
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Part V(B). Witnesses - Part V(B) 5. Witnesses: Exclusion Of Witnesses From Courtroom

        Part V(B)5    Exclusion Of Witnesses From Courtroom: General Principles

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(B) 5    Exclusion Of Witnesses From Courtroom: General Principles

CAVEAT: See Publication Preface and Caveats.

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24.2.2.2 Jury Must Not Consider Demeanor Of Witness While Not Testifying

FRE 615 mandates that witnesses be excluded from the courtroom at the request of any party.

Government of the Virgin Islands v. Edinborough, 625 F.2d 472 (3d Cir. 1980)

The circuits are split over who has the burden to show prejudice from the failure to sequester a witness. The majority require the movant to show prejudice, but a few circuits place the burden on the government to prove that failure to sequester was harmless.

United States v. Jackson, 60 F.3d 128 (2d Cir. 1995)

Ordinarily, when FRE 615 is invoked, the government is permitted to have one case agent in the courtroom during trial.

United States v. Farnham, 791 F.2d 331 (4th Cir. 1986)
Scott v. Fort Bend County, 870 F.2d 164 (5th Cir. 1989)
But see United States v. Jackson, 60 F.3d 128 (2d Cir. 1995) (judge has discretion to permit more than one case agent in courtroom)

The federal agent in charge of the preparation of a criminal case for trial may not be excluded from the courtroom even though that agent is to be a government witness. Any prejudice from the presence of that witness while others are testifying can be prevented by requiring the government to present the testimony of that agent at an early stage of its case.

In re United States, 584 F.2d 666 (5th Cir. 1978)
United States v. Mitchell, 733 F.2d 327 (4th Cir. 1984)

It is reversible error to refuse a timely FRE 615 request to permit only one of two federal agents to remain in the courtroom during trial if the result is that the second agent hears the testimony of the first agent before testifying himself or herself.

United States v. Farnham, 791 F.2d 331 (4th Cir. 1986)
But see United States v. Jackson, 60 F.3d 128 (2d Cir. 1995)

If a witness violates the court's exclusion order, it is within the discretion of the court to prohibit that witness from testifying.

United States v. Calhoun, 510 F.2d 861 (7th Cir. 1975)
United States v. Bizzard, 674 F.2d 1382 (11th Cir. 1982)

When a witness fails to obey the court's exclusion order, the court may exclude the testimony of that witness entirely or may permit that witness to testify only as to matters about which he or she has not heard the testimony of other witnesses.

Nick v. United States, 531 F.2d 936 (8th Cir. 1976)

It is a violation of the rule of exclusion of witnesses for counsel to take notes of the testimony of witnesses and then relay the substance of these notes to other witnesses.

United States v. Wodtke, 711 F.2d 86 (8th Cir. 1983)