SC Lawyer, March 2010, #1. Who Can Stay and Who Must Go: The Tension Between Witness Sequestration and the Right of Crime Victims to Be Present.

• Author: By Elizabeth Van Doren Gray and Tina Cundari

South Carolina Lawyer

2010.

SC Lawyer, March 2010, #1.

Who Can Stay and Who Must Go: The Tension Between Witness Sequestration and the Right of Crime Victims to Be Present

South Carolina Lawyer March 2010 Who Can Stay and Who Must Go: The Tension Between Witness Sequestration and the Right of Crime Victims to Be Present By Elizabeth Van Doren Gray and Tina Cundari I. INTRODUCTION

In February 2009, a federal district court judge in Missoula, Montana, prepared to begin a trial in what has been described as the largest environmental criminal prosecution in United States history. The case was United States v. W.R. Grace et al., 597 F.Supp.2d 1157 (D. Mont. 2009). The trial was expected to last three to five months. The defendants were W.R. Grace and seven of its current and former employees. One of those former employees was a South Carolina man.

The charges concerned events that happened in the 1970s and 1980s at a mining operation in Libby, Montana. The mine was used to extract vermiculite, a mineral used in potting soil and attic insulation. But there was a problem with the vermiculite in Libby: It was contaminated with asbestos. The asbestos had to be removed, and during the removal process, asbestos fibers were released into the air.

In connection with this operation, the defendants were charged in 2005 with conspiring to release asbestos into the air, knowingly placing residents of Libby and surrounding communities in imminent danger of death or serious bodily injury. According to the indictment, one of the objects of the conspiracy was to violate the Clean Air Act. But the relevant provision of the Clean Air Act did not go into effect until 1990, and the mine closed in 1989.

If a crime had been committed, who were its victims? The government contended that the victims were all Libby residents who had asbestos-related illnesses. Some of those residents were prepared to testify at trial.

The Crime Victims' Rights Act, 18 U.S.C. § 3771, gives victims the right to be present at trial. At the same time, however, Rule 615 of the Federal Rules of Evidence provides that at the request of a party, the court must exclude witnesses from the courtroom before they testify.

This article will discuss the tension between a victim's right to be present at trial and a defendant's right to have witnesses excluded from the courtroom, and will recount how one judge-the Hon. Donald W. Molloy, who presided over the W.R. Grace trial in Montana-resolved the competing interests.

II. THE LAW

A. The Crime Victims' Rights Act

According to the Act, a crime victim is "a person directly and proximately harmed as a result of the commission of a Federal offense. . . " 18 U.S.C. § 3771(e) (2006). A victim has "[t]he right to reasonable, accurate, and timely notice of any public court proceeding. . . involving the crime. . . " 18 U.S.C. § 3771(a)(2). In addition, a victim has "[t]he right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding." 18 U.S.C. § 3771(a)(3). The prosecution must "make [its] best efforts to see that crime victims are notified of, and accorded" these rights. 18 U.S.C. § 3771(c)(1).

B. Federal Rules of Criminal Procedure

The Federal Rules of Criminal Procedure were amended in 2008 to reflect the mandates in the Crime Victims' Rights Act. According to the rules, "[t]he government must use its best efforts to give the victim reasonable, accurate, and timely notice of any public court proceeding involving the crime." Fed. R. Crim. P. 60(a)(1). Further, "[t]he court must not exclude a victim from a public court proceeding involving the crime, unless the court determines by clear and convincing evidence that the victim's testimony would be materially altered if the victim heard other testimony at that proceeding." Fed. R. Crim. P. 60(a)(2).

"In determining whether to exclude a victim, the court must make every effort to permit the fullest attendance possible by the victim and must consider reasonable alternatives to exclusion." Id. "The reasons for any exclusion must be clearly stated on the record." Id.

C. Federal Rules of Evidence

The Federal Rules of Evidence require that upon request of a party, the court must exclude witnesses from the courtroom before they testify. Fed. R. Evid. 615. The rule is designed to prevent witnesses from tailoring their testimony based on what prior witnesses have said and to...