§ 19.06 OUT-OF-COURT SEPARATION OF WITNESSES

• Jurisdiction: United States

§ 19.06. OUT-OF-COURT SEPARATION OF WITNESSES

Because the policy underlying Rule 615 would be defeated if, after testifying, a witness discussed her testimony with other witnesses,²⁸ courts often give an instruction "making it clear that witnesses are not only excluded from the courtroom but also that they are not to relate to other witnesses what their testimony has been and what occurred in the courtroom."²⁹ As the Supreme Court has noted, the "judge's power to control the progress and, within the limits of the adversary system, the shape of the trial includes broad power to sequester witnesses before, during, and after their testimony."³⁰

Such an order may prohibit spectators from telling a prospective witness what has taken place in court. Thus, it is improper for a detective to telephone daily a prosecution witness, informing her of the testimony of witnesses who had preceded her.³¹

Attorneys. The trial court has inherent authority to prohibit attorneys from consulting with a witness during recesses if the witness is currently being examined.³² According to the Supreme Court, "[s]equestering a witness over a recess called before testimony is completed serves the purpose of preventing improper attempts to influence the testimony in light of the testimony already given. Applied to nonparty witnesses who were present to give evidence, the orders were within sound judicial discretion."³³ As discussed in the next section, a different situation arises when the client is the witness.

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Notes:

^[28] See Perry v. Leeke, 488 U.S. 272, 281 (1989) ("It is a common practice for a judge to instruct a witness not to discuss his or her testimony with third parties until the trial is completed.").

^[29] United States v. Johnston, 578 F.2d 1352, 1355 (10th Cir. 1978). This authority derives from Rule 611(a) if not Rule 615. See United States v. Solorio, 337 F.3d 580, 592 (6th Cir. 2003) ("[W]hile the purpose of the rule is apparent; its purview is not. Circuits have split on the question of whether 'the scope of Rule 615 extends beyond the courtroom. . . ."). Compare United States v. Sepulveda, 15 F.3d 1161, 1176 (1st Cir. 1993) (stating that Rule 615 authorizes a trial court to " 'order witnesses excluded' only from the courtroom proper") (citation omitted), with United States v. Prichard, 781 F.2d 179, 183 (10th Cir. 1986) (stating that a "sequestration order pursuant to Fed.R.Evid. 615 requires not only that witnesses be excluded from the courtroom, but that...