"THE" RULE: MODERNIZING THE POTENT, BUT OVERLOOKED, RULE OF WITNESS SEQUESTRATION.

• Author: Capra, Daniel J.

TABLE OF CONTENTS INTRODUCTION 4 I. "THE" RULE: A BRIEF HISTORY 9 II. CONSTRUING RULE 615: STRICT VS. EXPANSIVE CONSTRUCTION 15 A. The Plain Language Approach 15 B. An Expansive Reading of Rule 615 19 C. A Clash of Titans: A Textualist vs. A Purposive Approach to Rule Construction 24 III. THE ATTORNEY PARADOX 34 A. A Sequestration Free Pass for Attorneys: The Fourth Circuit Approach 35 B. Counsel Bound by Sequestration Protections 39 C. Allowing Counsel to Disclose Trial Testimony to a Prospective Witness: The Merits and Demerits 42 IV. GOOD HOUSEKEEPING: THE DESIGNATED REPRESENTATIVE EXCEPTION 46 A. The Single-Representative Interpretation of Rule 615(b) 50 B. Multiple Entity Representatives 52 C. Changing Horses During the Race: A Designated Representative Relay 57 V. MODERNIZING RULE 615 58 A. Rule 615 Mandates Physical Exclusion Only, with the Express Possibility of Additional Orders 60 B. Automatic Protection Beyond the Courtroom 63 CONCLUSION 67 "[S]equestration is (next to cross-examination) one of the greatest engines that the skill of man has ever invented for the detection of liars in a court of justice." (1) INTRODUCTION

Starting with its illustration in the Apocrypha and continuing into the modern day both in courtrooms and in ubiquitous criminal procedurals, one evidence rule has proven so powerful that it has become known as "THE" Rule of Evidence. (2) The rule of witness sequestration demands that multiple witnesses to the same events be examined separately from one another to prevent them from, consciously or subconsciously, tailoring their testimony to ensure that it remains consistent. (3)

Suppose that a defendant is on trial for arson in federal court. (4) He claims that he was innocently walking by the building in question when he heard an explosion and ran from the fire. But the government has two witnesses--friends who were originally detained as suspects in the arson investigation after they were found together in the vicinity of the burning building. These two witnesses quickly implicated the defendant and offered to cooperate with the prosecution, claiming that they observed the defendant running out of the building shortly before it erupted in flames. Their testimony will be critical to the defendant's fate. The defendant moves to sequester the government witnesses until they testify at trial, and the court states, "Yes, I am invoking the Rule. All government and defense witnesses shall be excluded from trial until they testify." The first government eyewitness testifies and gives a detailed account of when and where he spotted the defendant running from the building. Consistent with the trial court's sequestration order, the second witness is not present in court during this testimony. After the court recesses for the evening, however, the first eyewitness texts his friend and describes his testimony in detail. The next day, the friend testifies, adhering closely to the details provided in the text.

Has there been a violation of the rule of witness sequestration? In many jurisdictions, the answer is yes because one witness communicated the substance of his trial testimony to another excluded witness, enabling him to tailor his testimony. (5) In many others, there is no violation of the witness sequestration rule simply because both government witnesses remained physically absent from the courtroom during the trial. (6) In these jurisdictions, testimonial tailoring is permissible notwithstanding the trial court's invocation of "the Rule"--so long as it occurs beyond the courtroom doors. (7)

The principle of witness sequestration or separation ensures accurate fact finding by enabling litigants to uncover deception or error revealed by distinctions among witness accounts. (8) The credibility of the key testimony given by the government witnesses in the illustration above would have been seriously undermined had they offered differing descriptions of the man they saw running from the building or varying versions of the time and place at which they observed him. For this reason, American courts have long recognized the importance of witness sequestration to the fair operation of trial proceedings: "it will make available the raw reactions and the individual recollection of each witness unaided by the stimulation of the evidence of any other witness." (9)

Witness sequestration is, thus, conceptually simplistic and famously mighty. Perhaps due to its time-honored pedigree and universal acceptance, sequestration is somewhat taken for granted--commonly invoked at the inception of hearings or trial proceedings with only a brief reference to "the Rule" or a court order of "separation" or "sequestration." (10) Once the Rule has been invoked, lawyers know that prospective witnesses--with a few notable exceptions--must exit the courtroom until called to testify. (11) Federal Rule of Evidence 615 sets forth the right to sequestration applicable in federal proceedings. (12) Consistent with its common law ancestors, Rule 615 demands that testifying witnesses be "excluded" from a trial or hearing upon request so that they cannot "hear" the testimony of other witnesses. (13)

Remaining physically present during the testimony of other witnesses is, of course, not the only means by which a prospective witness might adapt her testimony to match that of other witnesses. Prospective witnesses might coordinate outside of the trial proceeding prior to testifying. Or a witness who has already given testimony might communicate the substance of her testimony to an upcoming witness during a recess in the proceedings, as exemplified by the illustration above. As technology has advanced, the potential methods available for extra-tribunal access to trial testimony have multiplied exponentially. A witness might email, text, or tweet about the content of her testimony. Daily trial transcripts can be churned out at warp speed, providing prospective witnesses with a real-time window into court proceedings. (14) Moreover, the recent specter of COVID-19 has spawned new and creative methods for trying cases and holding hearings in a socially distanced manner--and these new methods can provide new ways to access trial testimony. (10) Now, a prospective witness might obtain the Zoom invitation to a virtual trial proceeding and listen in on daily testimony. Some districts have posted trial proceedings on YouTube for anyone to watch. (16) Or a prospective witness might enter a courtroom into which remote trial proceedings are being streamed to maintain distance among trial participants.

Witness exclusion from trial proceedings utterly fails to provide the important safeguard against testimonial tailoring if prospective witnesses are permitted to access trial testimony from outside the courtroom. Indeed, in the famous case of Sheppard v. Maxwell, (11) the Supreme Court recognized that witness sequestration is undermined when prospective witnesses are given access to the content of trial testimony:

[T]he court should have insulated the witnesses. All of the newspapers and radio stations apparently interviewed prospective witnesses at will, and in many instances disclosed their testimony. A typical example was the publication of numerous statements by Susan Hayes, before her appearance in court, regarding her love affair with Sheppard. Although the witnesses were barred from the courtroom during the trial the full verbatim testimony was available to them in the press. This completely nullified the judge's imposition of the rule. (18) For this reason, several federal circuits hold that a trial judge's invocation of Rule 615 not only requires the physical exclusion of prospective witnesses from the courtroom, but also operates automatically to preclude witnesses from accessing or being provided trial testimony while they remain outside of court. (19) These courts emphasize the fundamental purpose of sequestration and an interpretation of Rule 615 that allows litigants to realize the full and intended benefit of a witness sequestration order. (20) Without such protection beyond the courtroom doors, these courts posit that the time-honored and fundamental sequestration right becomes a dead letter. (21)

Not all federal courts interpret Rule 615 so broadly. Several circuits have adopted a textualist or plain language approach to the meaning and scope of Rule 615. (22) In these federal courts, an order entered under "Rule 615" accomplishes only what the terminology chosen for the Rule describes: the physical exclusion of prospective witnesses from the courtroom. (23) These courts highlight the notice problem created by an expansive interpretation of orders entered under Rule 615 that proscribes extra-tribunal witness conduct not covered in the language of the Rule. (24) According to these circuits, punishing litigants or witnesses for transgressing unexpressed restrictions on their conduct outside the courtroom raises problems of fundamental fairness. (25) Thus, in the circuits adopting a plain language interpretation of Rule 615, trial courts must do more than invoke Rule 615 to extend protection beyond the courtroom doors; they must enter specific orders detailing the precise witness conduct that they intend to limit. (26) In these jurisdictions, our hypothetical arson defendant's conviction would not be subject to attack, even though the second key witness against him received trial testimony.

Accordingly, there is a divide among the federal courts about the import of an order entered pursuant to Rule 615 that threatens the fundamental sequestration right as well as the uniform application of the Federal Rules of Evidence. The sequestration protection enjoyed by litigants in one federal circuit differs sharply from that enjoyed by litigants in another operating under an identical district court order. And neither approach to trial court orders entered under the existing language of Rule 615 is satisfactory. The...