§615 Exclusion of Witness

• Library: Evidence Restated Deskbook (2021 Ed.)

§615 Exclusion of Witness

A. General Rule. The trial court may, in its discretion, exclude witnesses from the courtroom and disqualify a witness from testifying for violating the rule of exclusion.

B. Disqualification. Disqualification from testifying is generally not warranted unless there is proof that a witness violated the rule with the consent, connivance, or procurement of the party or counsel calling the witness.

C. Right to be Present. Persons who have a right to be present in the courtroom, even if the trial court excludes witnesses, include:

1. a party litigant;

2. a next friend or guardian ad litem of a minor child in an action brought on behalf of or against a minor child; and

3. a victim of a crime covered by § 595.209, RSMo Supp. 2016.

D. Discretion to Allow to Be Present. Persons who a trial court may allow to be present in the courtroom, even if the trial court excludes witnesses, include the following who are essential to the presentation of the party's cause:

1. A person designated by a corporate party to be its representative—it will normally be an abuse of discretion to exclude the designated representative

2. An expert witness

3. A prosecuting witness

Notes

A. General rule

A request by a party for the exclusion of witnesses from the courtroom during a proceeding is often referred to as "Invoking the Rule" or "The Rule." It has long been a part of Missouri law. Grab ex rel. Grab v. Dillon, 103 S.W.3d 228, 234 (Mo. App. E.D. 2003).

But use of such language as "I desire to invoke the rule" may not clearly indicate to witnesses that they are not to be in the courtroom after the court grants the motion. Counsel needs to be sure that the court states that fact to the witnesses after the request is granted. See Sturdivant Bank v. Wright, 168 S.W. 355, 358–59 (Mo. App. E.D. 1914).

Exclusion of witnesses is normally not a matter of right. Crews v. Kansas City Pub. Serv. Co., 111 S.W.2d 54 (Mo. 1937). Rather, it is a matter to be decided by the trial court in its discretion. It often is granted "'so that [witnesses will] not be privy to testimony provided by other witnesses'" with the decision being reviewed for abuse of discretion. State v. Jones, 134 S.W.3d 706, 715 (Mo. App. S.D. 2004) (quoting State v. Lawrence, 64 S.W.3d 346, 353 (Mo. App. S.D. 2002)).

We think [a rule of discretion rather than right] is the better view because it never has been considered necessary by courts or lawyers to enforce the rule in all cases, and it might be used to unnecessarily delay and obstruct trials. Courts should not arbitrarily refuse to enforce it, but neither should litigants or lawyers be permitted to arbitrarily require it. The propriety of the exercise of discretion to refuse its enforcement must necessarily be determined in the light of the circumstances of the particular case.

Crews, 111 S.W.2d at 60.

The discretion to exclude also includes the discretion to exclude from the courtroom during pretrial hearings. State v. Allen, 274 S.W.3d 514, 521 (Mo. App. W.D. 2008).

But if the exclusion prevents a witness from testifying, an opponent may not draw an adverse inference from the witness's failure to testify. Bair v. Faust, 408 S.W.3d 98, 103–04 (Mo. banc 2013) (the plaintiff was excluded from the courtroom); Calvin v. Jewish Hosp. of St. Louis, 746 S.W.2d 602, 605 (Mo. App. E.D. 1988); Barnes v. Kissell, 861 S.W.2d 614, 620 (Mo. App. W.D. 1993) (the defendant's only expert medical witness was excluded from the courtroom).

B. Disqualification

Remedy or sanction if the rule of exclusion is violated

A court has the discretion to disqualify a witness from testifying if the rule of exclusion is violated by that witness. State v. Jones, 134 S.W.3d 706, 715 (Mo. App. S.D. 2004); State v. Sexton, 929 S.W.2d 909, 914 (Mo. App. W.D. 1996); see also Stanford v. Morgan, 588 S.W.2d 89, 93 (Mo. App. W.D. 1979) (no abuse of discretion in refusing to allow a witness to testify who sat through two days of trial).

But a violation of the rule does not automatically warrant disqualification. "To the contrary, it is only when certain 'special circumstances exist' that a trial court should exclude the testimony of a witness who violates the witness exclusion rule." Jones, 134 S.W.3d at 715 (citations omitted). Thus, for example, exclusion was not warranted when a witness was not advised of the rule or of any order of the court excluding witnesses from the courtroom. Sturdivant Bank v. Wright, 168 S.W. 355, 358–59 (Mo. App. E.D. 1914).

Generally must show violation with the consent, connivance, or procurement of the party or attorney calling the witness

Generally, special circumstances only exist to disqualify a witness from testifying when "there is proof that the witness violated the rule with 'the consent, connivance or procurement of the party or counsel calling him.'" State v. Jones, 134 S.W.3d 706, 715 (Mo. App. S.D. 2004); State v. Lawrence, 64 S.W.3d 346, 353 (Mo. App. S.D. 2002) (both quoting State v. Griffen, 978 S.W.2d 445, 447 (Mo. App. S.D. 1998)); see also Keith v. Wilson, 6 Mo. 435 (1840); O'Bryan v. Allen, 8 S.W. 225, 226–27 (Mo. 1888).

This proof does not exist merely by showing that counsel for a party failed to exercise diligence in seeing to it that witnesses obeyed the exclusion order because "the enforcement of its orders is entirely with the court itself, through its own ministerial officers, the sheriff and his deputies, or the court bailiff." Brown v. McDaniel, 120 S.W. 642, 643 (Mo. App. E.D. 1909).

Thus, it was held that the...