§ 19.08 SANCTIONS

• Jurisdiction: United States

§ 19.08. SANCTIONS

Rule 615 does not specify what sanctions may be imposed if a witness violates an exclusion order. There are several possible remedies: (1) excluding the witness's testimony, (2) holding the witness in contempt, and (3) permitting comment to the jury regarding the witness's failure to obey the order.³⁹ Declaring a mistrial is a possible, but unlikely, sanction for a violation.

Although cases indicate that exclusion of the witness's testimony lies within the trial court's discretion, courts are hesitant to employ this sanction in the absence of connivance.⁴⁰ The exclusion of defense witnesses in criminal cases implicates a defendant's constitutional right to present a defense.⁴¹ While the Supreme Court has upheld the exclusion of a defense witness's testimony as an appropriate sanction under some circumstances, the Court also indicated that exclusion is not always constitutional.⁴²

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Notes:

^[39] See Holder v. United States, 150 U.S. 91, 92 (1893) (The witness's "testimony is open to comment to the jury by reason of his conduct."); People v. Melendez, 102 P.3d 315, 319 (Colo. 2004) ("Sanctions for violations of sequestration orders fall into three general categories: (1) citing the witness for contempt; (2) permitting counsel or the court to comment to the jury on the witness's non-compliance as a reflection on his or her credibility; and (3) precluding the witness's testimony.").

^[40] See United States v. Washington, 653 F.3d 1251, 1269 (10th Cir. 2011) ("our precedent indicates that a party's culpability in the violation of a sequestration order is a significant factor in determining whether admission or exclusion of the witness is the proper remedy for the violation"); United States v. Cropp, 127 F.3d 354, 363 (4th Cir. 1997) ("The remedy of exclusion is so severe that it is generally employed only when there has been a showing that a party or a party's counsel caused the violation. Because exclusion of a defense witness impinges upon the right to present a defense, we are quite hesitant to endorse the use of such an extreme remedy.").

^[41] See People v. Melendez, 102 P.3d 315, 321-22 (Colo. 2004) ("[T]he trial court did not make an adequate inquiry into whether the sequestration violation actually occurred. It simply accepted the prosecution's assertions. The record contains no verification that Curry was actually in the...