Section 6.16 “The Rule”

• Library: Criminal Practice 2012 Supp

A. (§6.16) “The Rule”

Although there is no codified rule governing sequestration or exclusion of witnesses, it continues to be standard practice to exclude witnesses from the preliminary hearing until they have testified. The associate circuit judge may exclude witnesses—for or against the prisoner—who have not testified and may cause the witnesses to be kept separate and prevented from speaking with one another. Section 544.360, RSMo 2000. Defense counsel should request the exclusion of witnesses while a witness is testifying and might also consider requesting that the judge order the witnesses to be kept separate to prevent them from conversing with each other. The authority relevant to these requests, in addition to § 544.360, is § 544.280, RSMo 2000, which provides that the order of conducting the hearing shall be the same as in the trial of criminal cases before circuit judges.

As discussed in §6.8 above, § 595.209.1(1), RSMo Supp. 2004, allows for victims of certain crimes “to be present at all criminal justice proceedings” (including preliminary hearing) “even if the victim is called to testify . . . as a witness in the case.” Therefore, a court may refuse to exclude these witnesses at the preliminary hearing. But counsel may wish to ask the court to require the prosecutor to present the victim first in such a case to minimize the adverse impact on the accused of the victim hearing evidence in court before testifying. When the victim hears other evidence before testifying, it...