Evidence Notes File 7

LAW 6330 (4 credits)
Professor Pedro A. Malavet

7.0 Direct and Cross-Examination

7.1 Direct and Cross

Cross-reference the materials on the Mechanics of Trial in Chapter 1.

• [CB] Recall that litigants ordinarily present testimony by means of direct examination. *** The lawyer develops background information about the witness; she places him at the scene and establishes personal knowledge; in the case of the expert witness, she develops the basis of his expertise. Only then does the focus shift to substantive matters. Particularly when it comes to substance, recall that direct examination means (for the most part) nonleading questions, as FRE 611(c) makes clear. The aim is to bring out what the witness has to say, and the attorney should not put words in his mouth or testify for him. But the system is not rigid, and the bar against leading the witness on direct is not absolute. Consider now the exceptions to the pattern.
• [CB] 1. When necessary to develop testimony. FRE 611(c) contemplates direct examination of a witness by leading questions when these "may be necessary to develop his testimony." Thus, usually the questioner is permit- [558] ted to lead a witness who is (a) very young, hence apprehensive, uncomprehending, or confused, (b) timid, reticent, reluctant, or frightened, (c) ignorant, uncomprehending, or unresponsive, or (d) infirm. Of course the danger of leading seems especially great for people of such description, but where the choice is to run the risks posed by this form of examination or to do without the knowledge of such witnesses, the risks become acceptable.
• [CB] 2. When the witness is uncooperative. FRE 611(c) also contemplates direct examination by leading questions when the witness is "hostile" or "an adverse party" or "identified with an adverse party."
• [CB] 3. When the Rule is more trouble than it is worth. Sometimes requiring nonleading questions on direct is simply not worth the trouble. On preliminary matters, for example, leading questions save time and are allowed:
• [CB] The same is true of matters that are not contested. Even though there may be no formal stipulation between the parties, all participants may know that certain points will not be seriously disputed, and on such matters leading questions may be allowed simply to save time.
• [CB] 4. When memory seems exhausted. Perhaps the most important and potentially troublesome instance in which leading questions are permissible on direct is the situation in which the memory of the witness seems exhausted. *** "refresh his recollection." Usually that means that the lawyer gently reminds the witness of something he has said before, perhaps in a written statement or affidavit or in a deposition, and FRE 612 expressly recognizes this technique: In time-honored tradition, the lawyer hands the statement to the witness, asks him to read it, and then asks whether "his memory is now refreshed." If he says yes, the lawyer proceeds with questioning on the subject at hand and elicits the desired information.
• [CB, B. Cross-examination] Recall that, in the process of presenting testimony, cross-examination follows direct. Here the adverse party (against whom the direct testimony is offered) begins the process of testing, limiting, and rebuttal. Here the lawyer rather than the witness is the focus; here the substantive points are largely contained in the questions themselves, as the answers confirm or acknowledge what the questions in effect assert. *** Only in rare instances must the cross-examiner avoid leading the witness: She cannot lead when the witness is her own client (or aligned with her client), as happens when (for example) plaintiff in a civil case calls the defendant to testify and defense counsel then "cross-examines."

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence

• (c)  Leading Questions.  Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony.  Ordinarily, the court should allow leading questions:
  • (1)  on cross-examination; and
  • (2)  when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

• Malavet:
  • You cannot think of this in mechanical terms. This is an area where canned outlines may prove to be overly simplistic and downright misleading. It is the attorney's relationship with the witness, in his capacity as representative of a party, i.e., within the context of each person's role in the case, that determines if we should vary the "ordinary" rule that direct examination is by non-leading questions and cross-examination is by leading questions. To give you more background on this, let me quote from the multi-volume Federal Evidence collection:
• Hornbook Explanation:
  Usually the mode of cross-examination is leading questions, as indeed the very term "cross-examination" implies. This is not always true, however, as there are three important exceptions: First, Rule 611(b) requires the questioner to proceed "as if on direct examination" when he ranges beyond the scope of direct during cross-examination. Under Rule 611(c), he should then use non-leading questions, unless the witness is an adversary, or he can establish during this extended questioning that one of several other exceptions apply. Second, when a party in a civil action calls his adversary as a witness, the usual modes of questioning are reversed: The "direct" examination will be by leading questions, and the "cross-examination" (conducted by the witness' own counsel) will be by non-leading questions. [A good example of this was provided by Problem 2-G at page 84.] Third, when the calling party is permitted for some other reason to put leading questions on direct examination ­for example, when the witness is "identified with" his adversary under Rule 611(c), or proves "hostile" under that provision-it will often be appropriate to confine the cross-examiner to non-leading questions. This is not invariably true, however, as a witness may be "hostile" to both parties, or may be unable to testify helpfully without being asked leading questions, in which case it will be appropriate to allow both the calling party on direct and his adversary on cross to put leading questions.
  • Louisell & Mueller, Federal Evidence § 336 (footnotes omitted, emphasis added).
• [CB] One aim of cross-examination is to develop the substance of the story as the adverse party hopes that the jury will see it-to recast the story presented by the calling party. Another is to limit or confine the impact of the testimony of the witness. Yet another is to impeach the credibility of the witness. The line between these functions sometimes disappears, but in what follows the focus is on tactics that generally aim to confine and limit the effect of adverse testimony.
  

Baker v. State: Refreshing Recollection

Case Excerpts, with my commentary in bold type. Do you get the impression that someone here was showing off their command of classic literature?

• Colloquy between the court and counsel
  • Mr. Harlan: He can refresh his recollection if he looks at the report.
  • The Court: He can’t refresh his recollection from someone else’s report, Mr. Harlan.
  • Mr. Harlan: I would object, Your Honor. Absolutely he can.
  • The Court: You might object, but–
  • Mr. Harlan: You are not going to permit the officer to refresh his recollection from the police report?
  • The Court: No. It is not his report . . . . He says he does not know who it was before. So, he can’t refresh his recollection if he does not know simply because someone else put some name in there.
  • Mr. Harlan: He has to read it to see if it refreshes his recollection, Your Honor.
  • The Court: We are reading from a report made by two other officers which is not the personal knowledge of this officer.
  • Mr. Harlan: I don’t want him to read from that report. I want him to read it and see if it refreshes his recollection.
• Had the appellant herein sought to offer the police report as a record of past recollection on the part of Officer Bolton, it is elementary that she would have had to show, inter alia, that the report had either been prepared by Officer Bolton himself or had been read by him and that he can now say that at that time he knew it was correct. Absent such a showing, the trial judge would have been correct in declining to receive it in evidence.
• Not so with Present Recollection Revived! *** It is the difference between evidence and non-evidence. Of such mere stimuli or memory-prods, McCormick says, “[T]he cardinal rule is that they are not evidence, but only aids in the giving of evidence.”
• When we are dealing with an instance of Present Recollection Revived, the only source of evidence is the testimony of the witness himself. The stimulus may have jogged the witness’s dormant memory, but the stimulus itself is not received in evidence. ***The opposing party, of course, has the right to inspect the memory aid, be it a writing or otherwise, and even to show it to the jury.
• In solid accord with both the psychological sciences and the general common law of evidence, Maryland has long established it that even when a writing of some sort is the implement used to stir the embers of cooling memory, the writing need not be that of the forgetful witness himself, need not have been adopted by him, need not have been made contemporaneously with or shortly after the incident in question, and need not even be necessarily accurate. The competence of the writing is not in issue for the writing is not offered as evidence but is only used as a memory aid . . . .
• Not only may the writing to be used as a memory aid fall short of the rigorous standards of competence required of a record of past recollection, the memory aid itself need not even be a writing. What may it be? It may be anything.10 It may be a line from Kipling or the dolorous refrain of “The Tennessee Waltz”; a whiff of hickory smoke; the running of the fingers across a swatch of corduroy; the sweet carbonation of a chocolate soda; the sight of a faded snapshot in a long-neglected album. All that is required is that it may trigger the Proustian moment. It may be anything which produces the desired testimonial prelude, “It all comes back to me now.” Of just such possibilities did Learned Hand speak in United States v. Rappy, 157 F.2d 964, 967 (2d Cir. 1946):
• Anything may in fact revive a memory: a song, a scent, a photograph, an allusion, even a past statement known to be false.
• The United States Court of Appeals for the Ninth Circuit addressed the same issue in Jewett v. United States, 15 F.2d 955 (1926), and concluded, at 956:
• [I]t is quite immaterial by what means the memory is quickened; it may be a song, or a face, or a newspaper item, or a writing of some character. It is sufficient that by some material operation, however mysterious, the memory is stimulated to recall the event, for when so set in motion it functions quite independently of the actuating cause . . . .

James Julian, Inc. v. Raytheon Co. (Woodshedding)

Arguments FOR disclosure:
(1) The documents are not work-product;
(2) Even if they are work-product, privileges are waived when documents are used to prepare witnesses to testify, according to FRE 612.

• [The issue:] production of a binder of materials prepared by counsel for Julian for purposes of review by Julian's officers in preparation for their deposition testimony.]
• [Malavet:
  • Note that to the extent that we have company officers being prepared for testimony by company counsel, these communications are covered by the attorney-client privilege. The question is, are the documents subject to privilege.]
• [CB] The binder, which was not reviewed by the Court, contains: 1) selected documents obtained from RSC through discovery; 2) documents obtained by Julian from the public records of the Delaware Solid Waste Authority through a Freedom of Information Act request; and 3) documents prepared byJulian during the course of the project. [It is important to note that the documents were not written by counsel, just selected and organized by them].
• [Malavet:
  • both the selection AND the ordering are work product. After class students asked if production of the selected documents, in no particular order, would be acceptable. In other words, can we separate the selection from the ordering. The court in this case appears to have ordered the binders produced in the form in which they were presented to the witnesses. However, if faced with involuntary disclosure, counsel may wish to argue for the lesser of the evils by producing the selection of documents, but not the order. This allows opposing counsel the opportunity to examine the documents, and to use their content, without overly disclosing the mental processes of the counsel that prepared the binders.
• [CB They are Work-Product] The binder contains a small percentage of the extensive documents reviewed by plaintiff's counsel. In selecting and ordering a few documents out of thousands counsel could not help but reveal important aspects of his understanding of the case. Indeed, in a case such as this, involving extensive document discovery, the process of selection and distillation is often more critical than pure legal research. There can be no doubt that at least in the first instance the binders were entitled to protection as work product. [FRCP 26(b)(3)].
• [CB] There is no doubt that Rule 612(2) [FRE 612] constituted a major departure from the settled rule that the use of a privileged document to refresh a witness' memory only constituted a waiver of the privilege if it occurred at the time of testimony. The precise issue presented by the Raytheon defendants' motion is [486] whether in extending the rule to include documents used to refresh a witness' memory before testifying Congress intended to include all such documents or only those not subject to claims of privilege.
• [CB] As enacted, Rule 612 does limit the expansion of prior law, not, as plaintiff suggests, by exempting privileged documents, but by conditioning disclosure on the discretionary approval of the district court. It would thus appear that Congress left the task of striking a balance between the competing interests of full disclosure and the maintenance of confidentiality for case by case determination.
• [CB] Thus, for example, the court in Wheeling-Pittsburgh Steel Corp. v. Underwriters Laboratories, Inc., 81 F.R.D. 8 (N.D. Ill. 1978), held that the use of privileged documents to refresh a witness' recollection prior to testimony served as an effective waiver of the privilege.
• [CB: Other Examples of Waiver] [A]ccord, Marshall v. United States Postal Service, 88 F.R.D.348 (D.D.C. 1980) (unsigned affidavit prepared by attorney from interview notes used to refresh recollection at deposition); Williamson v. Puritan Chemical Corp., 80 Civ. 1698 (S.D.N.Y. March 6,1981) (statement made to counsel and reviewed prior to testifying); Peck & Peck, Inc. v. Jack LaLanne, 76 Civ. 4020 (S.D.N.Y. Jan. 12, 1978) (use of privileged investigative report to refresh recollection prior to testimony).
• [CB] *** Without reviewing those binders defendants' counsel cannot know or inquire into the extent to which the witnesses' testimony has been shaded by counsel's presentation of the factual background. The instant request constitutes neither a fishing expedition into plaintiff s files nor an invasion of counsel's "zone of privacy." Plaintiff's counsel made a decision to educate their witnesses by supplying them with the binders, and the Raytheon defendants are entitled to know the content of that education.

Rule 612. Writing Used to Refresh a Witness’s Memory

• (a)  Scope.  This rule gives an adverse party certain options when a witness uses a writing to refresh memory:
  • (1)  while testifying; or
  • (2)  before testifying, if the court decides that justice requires the party to have those options.
• (b)  Adverse Party’s Options; Deleting Unrelated Matter.  Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony.  If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party.  Any portion deleted over objection must be preserved for the record.
• (c)  Failure to Produce or Deliver the Writing.  If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order.  But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or — if justice so requires — declare a mistrial.

• Malavet:
  • Note that the court takes depositions to be included within the term "testifying". This is supported by FRCP 30(c): "Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence except Rules 103 and 615."
  • One alternative to the 612 argument would be to argue "necessity" under FRCP 26(b)(3).
  • In reviewing the recent caselaw, I found a general distaste on the part of courts to order production of attorney-client privileged or work-product privileged material under FRE 612(2). A similar reticence is definitely NOT found with regard to 612(1). Nevertheless, if the proper showing is made under FRE 612(2), production will be ordered. In fact, most of the cites to the case are positive. The proper showing, generally speaking, is that the witness used the documents to refresh his/her recollection (or otherwise to affect the content of his/her testimony).

Here is the relevant passage from legislative discourse, collected by the casebook authors, which suggests that Congress may NOT have intended to require waiver of applicable privileges:

• Mr. WHITE [Texas]: If . . . a party to the personal injury action asks for the work of an attorney on matters on which the party has [to] refresh his memory before he [comes] to the trial, then would the adverse attorney and adverse party have the opportunity to inspect that work?
• Mr. HUNGATE [Missouri]: . . . I understand -- and if I am in error, some other members of the [House Judiciary] committee can correct me -- the attorney's work product would not be subject to that inspection.
• [Mr. WHITE:] If it was used to refresh the memory of a witness would it then not be subject to inspection?
• [Mr. HUNGATE:] If it was used while testifying. If it were used before testifying there are different limitations on it.
• Mr. WHITE: You see, the way it reads, it says "before testifying." In other words, if you use it before testifying then it is a memory refresher.
• Mr. HUNGATE: It can become a discretionary matter with the court in that case. The rule was originally broader than this, as I recall it. We have tried to narrow the past rule, the rule [at] one point could have meant bringing in everything you used to refresh your memory, and the committee has sought to restrict that. You could use the classic examples, for instance, of patent cases or antitrust cases where you might have several large railroad boxcars full of documents, and to force them to be brought in could prove to be harassment.
• Mr. WHITE: Does not the chairman's own interpretation mean that at the court's discretion the court could insist that the adverse party bring to the opponent the material on which the witness refreshed his memory, is that correct?
• Mr. HUNGATE: The gentleman is raising a good point, because I think the gentleman is putting two legal concepts at each other's throats, one would be perhaps the original work product of the attorney, and I am not qualified to say that this is paramount, but it was not meant to repeal the attorney-client relationship, and, let me add, this does not write that out of its present existence. It does not do away with it. What we concentrated upon was in these extremely long cases where there would be lots and lots of documents, and where it would be a harassment to have them all brought in. . . . .
• Mr. WHITE: Is not this then a change in the rule, a change from the general evidentiary rules in the Federal courts?
• Mr. HUNGATE: That is not the case, as I understand it.
• Mr. WHITE: Presently in civil actions or personal injury actions, using the same hypothetical question, can an opponent obtain the material on which a witness refreshed his memory before he comes to testify, before the case?
• Mr. HUNGATE: He could not do so.
• Mr. WHITE: So this is a radical change. The point I am trying to make is that this is an inconsistency, that a man would have to produce the writings that he had used prior to coming to testify, whatever he refreshed his memory on, but he probably could not use the same writing in that regard, if these were self-serving to him. The lawyer's own work product would then be subject to inspection if it was used to refresh the memory of a witness, and thus you have intruded into a very established rule of law.
• Mr. HUNGATE: However, we come back to the fact that this does not wipe out the other sections of the law, or the law as it exists regarding the privilege of attorney client relationships, or their work products.
• 120 Cong Rec 2381-1382 (Feb. 6, 1974).

Notes:

• Note 4 makes the point that oral communications will receive the most protection under either attorney-client or work-product privileges. But consider if this is a reasonable substitute in complex, document-intensive cases.
• Malavet:
  • An old note explained that 18 USC § 3500, known as the Jencks Act, entitles a criminal defendant to certain statements made by government witnesses, but it is a trial right, and only attaches after the witness testifies.
  • Even if it overcomes privileges, the rule is discretionary as to pre-testimony documents. You can always ask the witness if their testimony is based on any document. Likewise, at at deposition you can ask about documents that might be relevant to the case generally. But asking "describe for me each document that you reviewed in preparation for today's deposition" would be an objectionable question.
• [CBNote 7 has the required showing] Cf. Sporck v. Peil, 759 F.2d 312, 317-319 (3d Cir.) (in securities fraud suit, plaintiff's attorney tried to find out, during deposition of defendant, which documents he reviewed in preparation; selection of documents used in this way was indeed protected by work product, and conditions set by FRE 612 were not satisfied, because counsel "failed to establish either that petitioner relied on any documents in giving his testimony, or that those documents influenced his testimony," and "[w]ithout first eliciting the testimony, there existed no basis for asking petitioner the source of that testimony"; yet if counsel does elicit testimony, he may then ask "which, if any, documents informed that testimony," and work product doctrine would not be implicated), cert. denied, 474 U.S. 903 (1985).

7.2 Excluding Witnesses

"The Rule On Witnesses"
Non-party witnesses should be excluded from the courtroom to prevent them from hearing each other's testimony. [FRE 615]

United States v. Greschner, 802 F.2d 373 (10th Cir. 1986) (witnesses may be directed not to speak privately with one another during trial).

Case: Susanna and the Elders: Why we have the rule

• [CB] [Daniel said:] "Separate these men and let me cross-examine them."
• [CB; The cross-examination of Elder one] "Where were you in the garden, what kind of tree were you standing under, when you saw them together?"
  "It was an ash tree," said the wretched man.
  [CB; The cross-examination of Elder two] Tell me, now, where exactly were you in the park, what tree were you standing under, when you saw them carrying on together?"
  "It was a pear tree," said the elder.
• [Insert the Perry Mason musical score].
• [CB] The whole assembly began to shout and cheer the young man because he had convicted them of perjury out of their own mouths. They punished them, in accordance with the law, with the same penalty they had planned to inflict on their sister-Israelite. They gagged them and led them off and hurled them into a chasm, and there the angel of the Lord burned them with flames. And so an innocent life was saved that day.
• Malavet:
  • Biblical fire and brimstone notwithstanding, the story illustrates why we preclude witnesses from watching each others testify, or perhaps even from speaking to each other until after they testify at trial: because it keeps them from coordinating their stories, or otherwise tailoring their testimony to fit with, or directly to contradict, someone else's.
  • I pointed out in class that when a witness is found to have lied about something (or to have been mistaken about one fact) that does not require the automatic rejection of their entire testimony. But, catching a witness in a lie is a very effective method of totally discrediting them.
  • My thanks for Mr. Welch [a student during a prior semester] for providing expert opinion that Ash and Pear trees are unmistakably different. Nevertheless, I am not sure that I would want to stake my life on the distinction between a Black, Blue, Green, Red or White Ash tree, on the one hand, and a Bradford, Callery or Common Pear tree, on the other.

Problem 7-A: Daily Transcripts (Why we have contempt rules)

As you noted in class, the wording of the order would be important. But remember the PIG RULE!

Nice people have nice things done onto them ... pigs get slaughtered.

• Malavet:
  • Consider the following order, that I wrote during class, with some slight modifications:
  • The witnesses are hereby forbidden from:
    Listening to another witness' testimony at trial, before they themselves testify, or otherwise finding out the substance of another witness' expected or actual testimony, prior to giving their own testimony at trial.
  • The attorneys are hereby enjoined from assisting a witness in obtaining information in violation of this order.
  • IF the order is violated: Exclusion of the witness' testimony is NOT automatic. The alternatives are:
    • Exclusion of the witness' testimony altogether, at the discretion of the Court
    • The testimony may be admitted, subject to jury instruction that it should be weighed in light of their ill-gotten knowledge
    • The witness may have their testimony limited. For example, the expert in this case may be precluded from making any use of information obtained from the transcripts as the basis of his opinion, and/or, may not in any way comment on the testimony of other experts given at the trial (note that an expert would be allowed to answer questions such as, "if expert X testified as follows, would you disagree?").

Authors' Comments on the Problem:

• (1) Does a blanket exclusion order (likely including a directive telling witnesses not to talk to one another and to stay out of court while others testify) bar use of daily transcripts to prepare witnesses? Surely the answer is yes: The plain purpose of the order is to keep a witness from learning (before he testifies) the substance of other testimony in the case. No doubt a carefully crafted order would contain some all-inclusive clause telling witnesses not to "inform themselves by any means" of testimony previously presented. But even without such language, counsel should understand well enough the intent to block such access.
• (2) Does a blanket order apply to experts who would or might be exempt under Exception (3)? Clearly yes. Like FRE 615 itself, Exemption (3) is not "self-executing," which means a party must claim it and satisfy the court that the conditions of the Exemption are satisfied.
• (3) Does FRE 615 authorize an order barring such use of daily transcripts? Pretty clearly it should be so construed, even though the literal language does not go that far. Cases construing it to authorize orders prohibiting one witness, after completing his testimony, from talking to another witness who is sequestered, support this generous construction.
• On points (1) and (2) above, see Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1372-1374 (5th Cir. 1981) (in copyright infringement suit, rejecting contention that literary expert was "impliedly exempt" from "general sequestration order applicable to all witnesses," for FRE 703 "does not furnish an automatic basis for exempting an expert from sequestration" and defense "never sought an exemption" in this case). On point (2) above, see Morvant v. Construction Aggregates Corp., 570 F.2d 626, 629-630 (3d Cir. 1977) (party bears responsibility for demonstrating that a particular witness is essential to presentation of the cause within Exception 3). On point (3), see the Greschner case (note 2 after the case).

Notes:

• [CB] 4. Does FRE 615 authorize the court to direct witnesses not to confer privately? See United States v. Greschner, 802 F.2d 373, 375-376 (10th Cir. 1986) (yes), cert. denied, 480 U.S. 908 (1987). Does it authorize the court to direct counsel not to convene meetings with several witnesses at once, in preparation for their testimony? [I think yes.] What about an order directing counsel not to convey to one witness the substance of testimony given by another? [As we discussed, this one is touchy. On a theoretical level, I think that the court does have the authority to instruct counsel to refrain from conveying the testimony. However, as you noted in class, such orders would be difficult to enforce.]
  
• ["Essential to the presentation" of a cause.] [FRE 615[B](3)]
  • [CB] Also exempt from exclusion by FRE 615(3) is a person shown to be "essential to the presentation" of a cause. Wouldn't the elders in the trial of Susanna be essential to the presentation of the prosecutor's case?
    More generally, what kinds of witnesses likely qualify under the language in exemption 3? In criminal trials, investigative agents generally qualify. See United States v. Parodi, 703 F.2d 768, 773-775 (4th Cir. 1983) (rejecting arguments that an investigator should be (a) excluded because he coached other witnesses by nodding or shaking his head, and (b) required to testify first). Experts also commonly fit exemption 3, though not always. Compare United States v. Burgess, 691 F.2d 1146, 1157 (4th Cir. 1982) (psychiatrists for defense and prosecution both allowed to remain in court) with Miller v. Universal City Studios, 650 F.2d 1365, 1372-1374 (5th Cir. 1981) (doubting that expertise provides "automatic basis" for exemption, and suggesting that literary expert in copyright infringement suit might not qualify), and with United States v. Farnham, 791 F.2d 331, 335 (4th Cir. 1986) ("singular phrasing" in exemption 3 means that only one of two FBI agents remain in courtroom).
• [Exclusion NOT Automatic]
  • [CB] If a witness disobeys the order of withdrawal, while he may be proceeded against for contempt and his testimony is open to comment to the jury by reason of his conduct, he is not thereby disqualified, and the weight of authority is that he cannot be excluded on that ground merely, although the right to exclude under particular circumstances may be supported as within the sound discretion of the trial court.
• Holder v. United States, 150 U.S. 91, 92-93 (1893). Modern authority makes it clear that violating a sequestration order does not automatically call for excluding the testimony of the witness. See Government of Virgin Isl ands v. Edinborough, 625 F.2d 472, 474 (3d Cir. 1980).
• [Prejudice: Prejudice must be found in order to justify both exclusion from trial or some other sanction, and to justify reversal when a sanction is not imposed. The question is, how much: ]
  • [CB] Compare United States v. Ell, 718 F.2d 291, 293-294 (9th Cir. 1983) (FRE 615 could be read as (a) requiring a showing of prejudice, (b) requiring automatic reversal, or (c) raising a presumption of prejudice; choosing the latter, court comments that "prejudice is presumed and reversal is required unless it is manifestly clear" that the error was harmless or prosecutor proves harmless error by a preponderance) with United States v. Greschner, 802 F.2d 373, 375-376 (10th Cir. 1986) (defendant must show "probable prejudice or an abuse of discretion" when witness violates sequestration order and trial court lets him testify).
• [FRE 615[B](1): Parties: ]
  • [CB] In our system, crime victims are not parties. The state or federal government as prosecuting authority acts on behalf of "the people" or "the State" or "the United States" on behalf of all citizens and the larger body politic. Hence victims are not covered by FRE 615's exemption for "parties." Nor are victims normally categorized as persons "essential to the presentation of a case," and this exemption in FRE 615 is far more often applied to case agents and experts.
• Malavet:
  • Under difficult circumstances, Judge Matsch, who presided over the Oklahoma City Bombing case reluctantly followed a so-called "victims protection" statute after initially excluding the survivors who were going to testify, and even then he conducted voir dire (questioning outside the hearing of the jury), to make sure that the witnesses were not having an effect on each other's testimony. This discussion is at the the notes.
  • This only reinforces the rule that witnesses must be placed "under the Rules" upon party request, or may be so placed at the initiative of the court, unless an express rules or statutory exception can be found. The courts should not (and will not) make up their own exceptions, and, as illustrated by Problem 7-B, exceptions should be narrowly construed.

Superseded in the 8th Edition
Problem 7-B: The Sisters (Moved to Notes).

Note that the women are the daughters of the victim and thus neither the "victim" nor the parents of a minor who is a victim. Accordingly, they do not fit within existing Arkansas Rules exceptions.

• [Your casebook authors tell us:] What the court actually did.
  The problem rests on a 1996 Arkansas case, where the reviewing court did reverse the conviction. Here is the court's language:
• We find appellant has demonstrated prejudice. This case was decided by the jury upon the conflicting testimonies presented as regards the issue of appellant's intent when he shot the victim. It illustrates the need for the witness-exclusion rule to prevent the possibility of any of the victim's daughters from shaping her testimony to that of a preceding witness. Accordingly, we reverse the judgment of conviction and remand for a new trial. The following points of asserted error are addressed since they are likely to arise on retrial.
• Solomon v. State, 913 S.W.3d 288, 290-291 (Ark. 1996).

[Naturally, at the retrial, everyone will know what to say. So you might ask yourselves if the remedy of remanding for a new trial is in fact adequate.]

• [Notes, CB] 4. Would it be a good idea to vest in prosecutors the power to withhold an exemption from a crime victim? See Utah Rule 615(d) (exempting victim from sequestration "where the prosecutor agrees with the victim's presence"). [Note that this awkward phrasing is intended to suggest that a victim is subject to a statutory exemption from the Rule on Witnesses, i.e., they cannot be excluded from the courtroom during testimony, UNLESS the prosecution does not want them in the courtroom.] And see Cassell, Balancing the Scales of Justice: The Case for and the Effects of Utah's Victim's Rights Amendment, 1994 Utah L. Rev. 1373, 1392 (prosecutors obtained this provision to deal with "circumstances in which, if a victim was present during trial, a defense attorney might convince ajury that the victim's testimony was irretrievably tainted from hearing the testimony of other witnesses").

Rule 615. Excluding Witnesses

• [1]  At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. 
• [2]  Or the court may do so on its own.
• [3]  But this rule does not authorize excluding:
  • (a)  a party who is a natural person;
  • (b)  an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;
  • (c)  a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
  • (d)  a person authorized by statute to be present.

Examples of statutory exceptions:

• 18 U.S.C. §3510: provides that federal courts shall not exclude "any victim of an offense" from a trial merely because he may testify during sentencing. Note how the Federal exceptions tend to favor the victims, but not necessarily their next of kin.
• Florida goes farther: Fla. Evidence Code § 90.616 Exclusion of witnesses.
  • (1) At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection (2).
  • (2) A witness may not be excluded if the witness is:
    • (a) A party who is a natural person.
    • (b) In a civil case, an officer or employee of a party that is not a natural person. The party's attorney shall designate the officer or employee who shall be the party's representative.
    • (c) A person whose presence is shown by the party's attorney to be essential to the presentation of the party's cause.
    • (d) In a criminal case, the victim of the crime, the victim's next of kin, the parent or guardian of a minor child victim, or a lawful representative of such person, unless, upon motion, the court determines such person's presence to be prejudicial.