Sequestration of Expert Witnesses

Sequestration of witnesses serves two related policies: (1) to prevent witnesses from tailoring testimony in light of the testimony of other witnesses, and (2) to permit discovery of false testimony and other credibility problems. ee 29 Charles Alan Wright and Victor James Gold, Federal Practice and Procedure, § 6242 (1997)

In Texas, Civil Rule 267 and Evidence Rule 614 provides for sequestration of witnesses. “Although an expert witness may typically be found exempt under the essential presence exception, experts are not automatically exempt.” Drilex Systems, Inc. v. Flores, 42 Tex. S. Ct. J. 1121, 1122-1125 (Aug 1999). In Drilex, the party never established and the trial court never made a finding that the expert witness was in fact exempt under the rule. In Texas, if a witness is not exempt from the rule, he is not free to discuss the case with another witness outside the courtroom or to be in the courtroom.

Out of Court Conversations Among Witnesses

Texas is exceptionally strict on the sequestration rule. Other courts are not so quick to condemn any witness to witness conversation. The Federal Rule, like many state rules, requires the court to exclude witnesses when requested by a party so “they cannot hear the testimony of other witnesses.” See 29 Charles Alan Wright and Victor James Gold, Federal Practice and Procedure, § 6242 (1997) for an analysis of the conflicting federal decisions – whether Fed. R. Evid. 615 precludes out-of-court communications between the witnesses during trial.

Some federal courts have concluded the plain language of the federal rule is inapplicable because witnesses’ out-of-court communications during trial do not permit one witness to “hear the testimony of another witness” as specified in the language of the rule. See State v. Buchholz, 2004 ND 77 http://www.court.state.nd.us/court/opinions/20030275.htm for an example of a state court so ruling.

Other federal courts have concluded out-of-court communications between witnesses are precluded in order to promote the policies of Fed. R. Evid. 615, which might be frustrated if witnesses could collude outside of court. Wright and Gold, at § 6243.

Regardless whether there is a specific rule, the trial court has discretion to preclude witnesses’ out-of-court communications during trial as a function of the court’s general powers to manage the conduct of the trial. So the wise thing to do if you want to eliminate all witness to witness conversation is to ask for specific language in the court rule granting a Rule 615 order to extend to hearing out of court communications as well as in court communications.

Rebuttal Witnesses

In North Dakota, the Rule 615, Exclusion of Witnesses, reads:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order on its own motion. This rule does not authorize exclusion of (i) a party who is a natural person, or (ii) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (iii) a person whose presence is shown by a party to be essential to the presentation of the party’s cause.

EXPLANATORY NOTE

Rule 615 is taken from Rule 615 of the Federal Rules of Evidence. It provides that it is mandatory for a court to exclude witnesses when so requested by a party. The mandatory demand of this rule marks a departure from prior North Dakota law, which was that the exclusion of witnesses was a matter within the court’s discretion. Tice v. Mandel, 76 N.W.2d 124 (N.D. 1956).

SOURCES: Minutes of Procedure Committee: March 24-25, 1988, page 12; December 3, 1987, pages 15-16; June 3, 1976, page 5; October 1, 1975, page 6. Rule 615, Federal Rules of Evidence; Rule 615, SBAND proposal.

Leonard Bucklin was chairman of the (SBAND) Procedure Committee which was the source of the rule.

In State of North Dakota v. Hill, 1999 ND 26, the North Dakota court pointed out that the rule did not usually apply to rebuttal witnesses and stressed that:

“It is within the trial court’s discretion to permit a witness to testify even though the witness has heard prior testimony in spite of a sequestration order, and the court’s decision will not be overturned unless the court has abused its discretion. Burks v. Oklahoma Pub. Co., 81 F.3d 975, 980 (10th Cir.), cert. denied, 117 S.Ct. 302 (1996); United States v. Shurn, 849 F.2d 1090, 1094 (8th Cir. 1988).”

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