Chapter 6 - § 6.1 • EXCLUSION OF WITNESSES

• Jurisdiction: Colorado

§ 6.1 • EXCLUSION OF WITNESSES

Colorado

➢ General. "At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause." CRE 615.

➢ Purpose. Sequestration orders are tools to prevent witnesses from conforming their testimony to that of others, to discourage fabrication and collusion, and to aid the court in detecting false testimony. People v. Melendez, 102 P.3d 315, 319 (Colo. 2004); People v. Wood, 743 P.2d 422, 429 (Colo. 1987); People v. Villalobos, 159 P.3d 624, 629 (Colo. App. 2006); Martin v. Porak, 638 P.2d 853, 854 (Colo. App. 1981).

➢ Matter of Right. Sequestration, absent the exceptions in CRE 615, is a matter of right for either litigant. Melendez, 102 P.3d at 319; Williamson v. School Dist. No. 2, 695 P.2d 1173, 1175 (Colo. App. 1984); Martin v. Porak, 638 P.2d 853, 854 (Colo. App. 1981).

➢ Designated Representatives. The trial court does not have the discretion to sequester a non-natural party's designated representative under CRE 615(2), since both natural persons and non-natural parties are entitled to have one potential witness who is not subject to sequestration. People v. Cheeks, 682 P.2d 484 (Colo. 1984).
➢ Scope. The trial court has some discretion in applying the exceptions to CRE 615, and the trial court properly allowed two witnesses to remain in the courtroom who, though not formally designated as "representatives," were officers of the party corporation. Jefferson-Western Corp. v. Chefas, 670 P.2d 431, 432 (Colo. App. 1983).

➢ Witnesses Not to Discuss Testimony. The trial court may direct witnesses not to discuss the case with one another, but where witnesses were talked to as a group by an attorney prior to any presentation of evidence, no violation under the terms of the order occurred. People v. Brinson, 739 P.2d 897 (Colo. App. 1987). Mistrial is a possible, but rarely justified sanction, however, and the disqualification of witness testimony is a severe sanction that should only be imposed after careful consideration. Melendez, 102 P.3d at 319. Before it may consider possible sanctions, the trial court must first determine

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