§ 19.09 Key Points

• Jurisdiction: North Carolina

§ 19.09 Key Points

Often known simply as "the rule on witnesses," Rule 615 is intended to preclude the "tailoring" of testimony. The trial judge may exclude witnesses sua sponte. Upon request of a party, exclusion is mandatory. There are four exceptions:

Exception: parties. A party who is a natural person may not be excluded from the trial even though that party may be called as a witness. The Supreme Court has ruled, however, that a prosecutor may call the jury's attention to the fact that the defendant had the opportunity to hear all other witnesses testify and to tailor his testimony accordingly.

Exception: designated officers and employees. A designated officer or employee of a party which is not a natural person (e.g., corporation, government agency) may not be excluded. In criminal cases, the "investigative agent" falls within this category. However, the trial judge has authority under Rule 611 to require the investigative agent to testify at an early stage of the government's case if he remains the government's designated representative.

Exception: essential persons. Trial counsel often need an expert's advice when cross-examining the opponent's expert. The burden of establishing that a person is "essential" rests on the party who desires that person's presence at trial.

Exception: crime victims. The Victim's Rights and Restitution Act of 1990 and the Victim's Rights Clarification Act of 1997 permit a victim-witness to attend the trial unless the trial testimony would materially affect the witness's testimony.

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, 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."

Out-of-court separation of attorney and client. In Geders v. United States,⁴³ the Supreme Court...