§ 19.01 INTRODUCTION

• Jurisdiction: United States

§ 19.01. INTRODUCTION

Courts do not want witnesses hearing the testimony of other witnesses. Federal Rule 615, which governs the exclusion of witnesses from the courtroom, addresses this issue.¹ Often known simply as "the rule on witnesses," it is intended to preclude the "tailoring" of testimony.² "The efficacy of excluding or sequestering witnesses has long been recognized as a means of discouraging and exposing fabrication, inaccuracy, and collusion."³ In short, "sequestration helps to smoke out lying witnesses."⁴

Under Rule 615, the trial judge may exclude witnesses sua sponte. Upon request of a party, exclusion is mandatory. The rule may not apply to rebuttal witnesses, at least unexpected impeachment witnesses.⁵ Several exceptions are discussed below.

--------

Notes:

^[1] The Civil Rules contain a provision on the separation of witnesses during discovery proceedings. See Fed. R. Civ. P. 26(c)(1)(E) recognizing court's authority to designate "the persons who may be present while the discovery is conducted").

^[2] Geders v. United States, 425 U.S. 80, 87 (1976) ("The aim of imposing 'the rule on witnesses' is twofold. It exercises a restraint on witnesses 'tailoring' their testimony to that of earlier witnesses; and it aids in detecting testimony that is less than candid.").

^[3] Fed. R. Evid. 615 advisory committee's note.

^[4] United States v. Rhynes, 218 F.3d 310, 317 (4th Cir. 2000).

^[5] See United States v. Hargrove, 929 F.2d 316, 320-21 (7th Cir. 1991) ("The testimony of Baker did not contravene [Rule 615's] purpose. Baker was a surprise witness whom the government did not intend to call until Michael Beckett testified that the police pressured him to falsely identify Hargrove as his source for cocaine. The government called Baker solely to testify to the lack of police coercion and not to the substance of what Michael Beckett had said...