The Civil Litigator

JurisdictionColorado,United States
CitationVol. 8 No. 10 Pg. 1970
Publication year1979
8 Colo.Law. 1970
Colorado Lawyer

1979, October, Pg. 1970. The Civil Litigator


Vol. 8, No. 10, Pg. 1970

The Civil Litigator

Sequestration---A Few Observations and a Modest Proposal

The Facts

A precondition to the rendition of sound legal advice is an understanding of the facts.

The skills of the litigator are rarely sought until a human relationship has turned sour, and vital personal or financial interests are perceived to be at stake and in conflict with an adversary. In this milieu, ascertainment of the facts or the truth is frequently an elusive goal. It is always a difficult task. As advocates, we frequently proclaim that there is only one tolerable version of the facts, but this state of affairs rarely, if ever, exists.

It is problematical at best whether the "truth" surrounding the most amiable relationship is capable of being reconstructed from the memories of the participants after the passage of even a relatively short period of time. If John and Mary Whiteacre(fn1) were asked on their fifth (and presumably blissful) wedding anniversary to recount how they fell in love, even a desire to be gracious to one another would probably produce disparate versions of the facts.

Indeed, to determine whether a man is faithfully recounting what happened in his past (even in the most benign setting), it is essential to balance his actual memory against what he presently has to gain or lose from the story he is willing to tell. The most honest witness (consciously or unconsciously) wishes to justify his present feelings about life and will, therefore, usually do his best to recount the past in a manner consistent with his felt sense of personal dignity and his stake in the controversy.

To get at the facts and to attempt to reconstruct the whole with a healthy regard for the conscious and unconscious forces that play a part in everyone's memory, it is essential that the event at issue be reconstructed, witness by witness, and that each witness's version or memory of the event be obtained without the benefit or influence of another's memory. Rule 615 of the Federal Rules of Evidence (F.R.E.) provides a solution toward achieving this goal in the trial arena. Sequestration is demandable as a matter of right. Rule 615 of the proposed Colorado Rules of Evidence will accomplish, when promulgated, the same objective.

In civil litigation, the facts face their first litmus test during discovery. When the time for trial arrives, sequestration of witnesses is still a useful tool, but arguably this technique for seeking out the truth may then be too much too late. Why, then, should not a similar rule of sequestration be applicable with regard to oral depositions? It is, but we suggest that it can be improved.

An Historical Sidelight

The practice of separating witnesses in order to detect falsehood and to get at the truth by exposing inconsistencies has a long and rich history. Professor Wigmore reports that the story of Daniel's judgment in Susanna's case became a powerful argument in the courts of England, and was a favorite text used by those who wished to establish their innocence.(fn2) It deserves to be recalled:

The History of Susanna, vv. 36-34 (Apocrypha) [Two elders coveted Susanna, a very fair woman and pure, the wife of Joacim; they tempted her, but she resisted; then they plotted, and charged her with...

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