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WITNESS SEQUESTRATION - MN Bench Book - Trial Procedures & Practices for Judges
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WITNESS SEQUESTRATION

From MN Bench Book - Trial Procedures & Practices for Judges

Click on “TRIAL PROCEDURES & PRACTICES FOR JUDGES” above to return to main page


THE COURT HAS THE POWER, AT THE REQUEST OF EITHER PARTY, OR BY ITS OWN MOTION, TO EXCLUDE WITNESSES FROM THE COURTROOM FOR PARTS OR ALL OF A CASE.[1]

IN RESPONSE TO A MOTION OR REQUEST FOR THE SEQUESTRATION OF WITNESSES THE TRIAL COURT JUDGE SHOULD:

  1. MAKE A DEFINITE RULING ON A REQUEST FOR SEQUESTRATION OF WITNESSES,
  2. MAKE A RECORD OF SUCH RULINGS,
  3. MAKE A RECORD OF HOW THE SEQUESTRATION ORDER IS TO BE IMPLEMENTED,
  4. CLEARLY INDICATE ON THE RECORD WHO THE ORDER WILL APPLY TO .[2]
  5. EXPLAIN THE SEQUESTRATION ORDER TO EACH WITNESS WHO IS TO BE SUBJECT TO THE SEQUESTRATION ORDER SO THAT IF THERE IS A VIOLATION OF THE ORDER, THE COURT WILL BE IN A POSITION TO IMPOSE SANCTIONS FOR ITS VIOLATION.

“The basic purpose for sequestration of witnesses is to remove any possibility that a witness waiting to testify may be influenced consciously or subconsciously by the testimony of other witnesses and ‘to afford opposing counsel the opportunity of bringing out in cross-examination any discrepancies in the testimony of the various witnesses.’”[3] Minnesota courts, unlike Federal courts, are not required to grant a party’s sequestration request.[4] Judges should give greater deference to a party in a criminal case requesting witness sequestration.[5] Such requests should rarely be denied, unless they serve no purpose.[6] However, Minnesota and federal courts agree that “investigating officers, agents who were involved in the transaction being litigated, or experts essential to advise counsel in the litigation can be essential to the trial process and should not be excluded.”[7] Nevertheless, these witnesses if not excluded should be restricted from sitting at counsel’s table during the trial.[8]

Minnesota courts have done little to address the potential consequences for a violation of an order for witness sequestration. A violation of a sequestration order may be grounds to bar the testimony of the subsequent witness, a cautionary instruction or in the extreme, the granting of a new trial.[9]Several federal courts have considered this issue in great depth.[10] These courts have held that witnesses are not automatically barred from testifying just because they have violated a sequestration order.[11] In fact, ordinarily a violation of a sequestration order is not grounds to exclude a witness.[12] Upon notice that a witness has violated a sequestration order a trial judge has three choices: “(1) citing the guilty party for contempt; (2) allowing opposing counsel to cross-examine the witness as to the nature of the violation; or (3) striking the testimony already given or disallowing further testimony where the rule has been intentionally violated and actual prejudice results.”[13] For the most part a judge can choose whichever of these remedies they find most appropriate. The trial judge’s decision is overturned only upon the appearance of a clear abuse of discretion.[14]




References:

  1. MINN. R. EVID. 615; MINN. R. CRIM. P. 26.03, subd. 7. See e.g., Bunn v. U.S., 260 F.2d 313, 316 (8th Cir. 1958) (“where there was a possibility that the informer's testimony might be colored by that given by the agents of the bureau of narcotics on the witness stand, the court properly excluded [the informer] from the courtroom during [agents’] testimony”).
  2. State v. Erdman, 383 NW2d 331 (Minn. Ct. App 1986).
  3. State v. Miller, 396 N.W.2d 903, 906 (Minn. Ct. App. 1986); State v. Ellis, 271 Minn. 345, 364, 136 N.W.2d 384, 396 (1965).
  4. MINN. R. EVID. 615 advisory committee comment –1989. See also MINN. R. EVID. 615; MINN. R. CRIM. P. 26.03, subd. 7; FED. R. EVID. 615 (stating that exclusion of a witness at the request of a part is mandatory unless the witness is: "(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 the party's case or (4) a person authorized by statute to be present.").
  5. See State v. Jones, 347 N.W.2d 796, 802 (Minn. 1984); State v. Posten, 302 N.W.2d 638, 640 (Minn. 1981).
  6. State v. Jones, 347 N.W.2d 796, 802 (Minn. 1984); State v. Garden, 267 Minn. 97, 125 N.W.2d 591 (1963); Jenkins v. State, No. C9-94-2064, 1995 WL 165079, at *3 (Minn. Ct. App. Apr. 11, 1995) (unpublished); State v. Gibson, 1994 WL 714305, at *3 (Minn. Ct. App. Dec. 27, 1994) (unpublished).
  7. MINN. R. EVID. 615 advisory committee comment --1989. See e.g., Bunn v. U.S., 260 F.2d 313, 316 (8th Cir. 1958) (affirming judgment of the trial court not to sequester witnesses from the Bureau of Narcotics “who had procured the evidence against the defendant and who were, no doubt, of assistance to counsel for the Government at the trial”); State v. Jordan, 272 Minn. 84, 136 N.W.2d 601, 607 (Minn. 1965) (court was not required to exclude a potential witness from the courtroom when that potential witness’ presence was necessary for purposes of in-court identification of him by other witnesses).
  8. State v. Koskela, 536 N.W.2d 625, 630-31 (Minn. 1995); State v. Schallock, 281 N.W.2d 186, 187-88 (Minn. 1979). But see Flores-Rodriguez v. State, No. A03-713, 2004 WL 119876, at *2-*4 (Minn. Ct. App. Jan. 27, 2004) (unpublished) (denying relief from conviction where court sequestered officer during the part of the trial Defense counsel requested he be excluded from, but allowed him to sit at counsels table through the rest of the trial).
  9. Erdman, Supra
  10. Note that these decisions are based on Rule 615 of the Federal Rules of Evidence, not Rule 615 of the Minnesota Rules of Evidence.
  11. U.S. v. Gibson, 675 F.2d 825, 835-36 (6th Cir. 1982), cert. denied, 459 U.S. 972 (1982).
  12. See Holder v. U.S., 150 U.S. 91, 92 (1893); U.S. v. Atkins, 487 F.2d 257, 259 (1973).
  13. U.S. v. Eyster, 948 F.2d 1196, 1211 (11th Cir. 1991) (citing U.S. v. Lattimore, 902 F.2d 902, 903-04 (11th Cir.), cert. denied, 498 U.S. 905 (1990)). See also Holder v. U.S., 150 U.S. 91, 92 (1893); U.S. v. Eastwood, 489 F.2d 818, 821 (5th Cir. 1973); Braswell v. Wainwright, 463 F.2d 1148, 1152 (5th Cir. 1972).
  14. Nick v. U.S., 531 F.2d 936, 937 (8th Cir. 1976). See also U.S. v. Covington, 133 F.3d 639, 645 (8th Cir. 1998); U.S. v. Atkins, 487 F.2d 257, 259 (8th Cir. 1973); U.S. v. Suarez, 487 F.2d 236, 238 (5th Cir. 1973); U.S. v. Kiliyan, 456 F.2d 555, 560 (8th Cir. 1972). However, Judges have less discretion to bar witness testimony in criminal matters. The court should not bar a witness on this basis if one of the Defendant’s fundamental constitutional rights is at stake. See Dutton v. Brown, 812 F.2d 593, 602 (10th Cir. 1987); Braswell v. Wainwright, 463 F.2d 1148, 1157 (5th Cir. 1972).