Sequestration of Witnesses

• Jurisdiction: Maryland

IV. Sequestration of witnesses

Both the State and the defense should make a motion to sequester witnesses. See Md. Rule 5-615. This rule, which is also referred to as the "rule on witnesses," precludes the vast majority of potential witnesses from being in the courtroom prior to his or her testimony so that the witness cannot know of the testimony of other witnesses ahead of time. In Perry v. Leeke, 488 U.S. 272 (1989), the Supreme Court stated: "[W]itnesses may be sequestered to lessen the danger that their testimony will be influenced by hearing what other witnesses have to say, and to increase the likelihood that they will confine themselves to truthful statements based on their own recollections." Id. at 281-82.

If the sequestration rule is violated, opposing counsel should make a motion to preclude that witness from testifying. If the witness has already testified prior to the attorney learning of the sequestration violation, the attorney should make a motion to strike the testimony. If the motion to preclude testimony or motion to strike testimony is denied, the attorney may make a motion for a mistrial.

If the motion for a mistrial is denied, or the issue is not discovered until after the jury renders a guilty verdict, the defendant should make a 10-day motion for a new trial. If the issue is not discovered until after sentencing, the defendant should file a 90-day motion for a new trial or a one-year motion for a new trial based on newly discovered evidence. If the motion for a new trial is denied, the defendant should raise the issue on appeal. If the issue is not discovered until after one year after sentencing, the defendant should file a petition for post-conviction relief.

A. Exclusion of witnesses prior to their testimony

1. Required exclusion

Under Md. Rule 5-615(a), if a party requests exclusion of witnesses before testimony begins, the trial court must order witnesses excluded or sequestered prior to their testimony.

2. Criminal agency witnesses, i.e., identification witnesses

Within the trial court's discretion, an identification witness may be excluded before the defendant appears in court to ensure that the witness is not making an identification solely because that person is the defendant.

3. Continuation of exclusion even after witness testimony

The trial court may continue the exclusion of a witness, following the witness's testimony, if the witness is likely to be re-called later.

B. Non-exclusion

1. Defendant

The defendant may not...