§ 19.03 Exception: Designated Officers and Employees

• Jurisdiction: United States

§ 19.03 Exception: Designated Officers and Employees

Rule 615 provides that a designated officer or employee of a party that is not a natural person (e.g., corporation, government) may not be excluded from the trial, even though that person may be called as a witness. The party's attorney designates the representative.¹⁵

Investigating officer. The Senate Judiciary Committee construed this exception to permit an "investigative agent" to remain during a criminal trial, notwithstanding the possibility that the detective or case agent may be called as a witness: "The investigative agent's presence may be extremely important to government counsel, especially when the case is complex or involves some specialized subject matter. The agent, too, having lived with the case for a long time, may be able to assist in meeting trial surprises where the best-prepared counsel would otherwise have difficulty."¹⁶

Nevertheless, the trial judge has authority under Rule 611¹⁷ to require the investigative agent to testify "at an early stage of the government's case if he remains the government's designated representative under Rule 615."¹⁸ A court, however, does not have the same authority with respect to the testimony of a criminal defendant.¹⁹ A request for the presence of a second investigating agent is governed by the exception for essential persons and involves a discretionary decision.²⁰

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Notes:

^[15] See Fed. R. Evid. 615 advisory committee's note ("As the equivalent of the right of a natural-person party to be present, a party which is not a natural person is entitled to have a representative present. Most of the cases have involved allowing a police officer who has been in charge of an investigation to remain in court despite the fact that he will be a witness. Designation of the representative by the attorney rather than by the client may at first glance appear to be an inversion of the attorney-client relationship, but it may be assumed that the attorney will follow the wishes of the client, and the solution is simple and workable.") (citations omitted).

^[16] S. Rep. No. 1277, 93d Cong., 2d Sess., reprinted in 1974 U.S.C.C.A.N. 7051, 7072.

^[17] Fed. R. Evid. 611(a) ("The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence . . . .").

^[18] In re United States, 584 F.2d 666, 667 (5th Cir. 1978). See also Carter v. State, 610 S.E.2d 181, 183-84 (Ga. App. 2005) ("We have reached a point where the...