Criminal Law

Excluding Witnesses from the Courtroom

In a criminal trial, either side can ask the judge to exclude witnesses from the courtroom while another witness testifies. This is usually done before the trial begins by filing a Motion for Sequestration. Essentially, each witness testifies without being influenced by other testimony. This reduces any chance of a witness tailoring their testimony to match someone else's testimony.

A sequestration order may also exclude out-of-court communications between witnesses. For example, a witness isn't allowed to read the transcript of another witness’s testimony. Basically, anything that involves one witness learning, prior to their own testimony, about another witness’s testimony can be forbidden.

Sequestration of witnesses differs from sequestration of a jury. Sequestered witnesses don’t go into the courtroom until it’s their turn to testify. Sequestered jurors don’t go home at the end of the day. Instead they have to stay in a hotel until the trial ends.

Exceptions to Witness Exclusion

Every state court and the federal courts have a witness exclusion rule. Although an order excluding witnesses generally applies to everyone, there are some exceptions, including:

  • Lead investigating law enforcement officer
  • Expert witnesses
  • Accused or defendant

A defendant has a constitutional right to be present in the courtroom during all the testimony. At the same time, the prosecution can have the lead investigator in the case sit at the counsel table to assist, even though the officer will be a witness. Usually the prosecution designates the officer as its representative. Finally, an expert witness who’s shown to be essential to the presentation of the case can stay in the courtroom throughout the trial.

A more complicated question arises when determining if the crime victim should be excluded or exempted. With the recent push for victims’ rights, several states exempt victims from exclusion orders. Nevertheless, a judge may exclude a victim if hearing other testimony might influence their testimony or if the defendant’s right to a fair trial is impaired.

If a witness violates a sequestration order, the trial court can impose a variety of penalties, including:

  • Witness disqualification and exclusion of their testimony
  • Order of contempt
  • Allowing cross-examination about the witness’s violation and credibility
  • Jury instructions about the witness’s violation and credibility

Disqualifying a witness is a penalty that’s not often used in criminal trials because it can interfere with a defendant’s constitutional right to put on a defense.

Excluding witnesses from the courtroom prevents a witness from influencing someone else's testimony. Separating witnesses is crucial to the ultimate goal of a criminal trial - discovering the truth.

Questions for Your Attorney

  • If I’m scheduled to testify, have I violated a sequestration order if someone attending the trial tells me about another witness’s testimony?
  • What happens if the attorney tells me about another witness’s testimony?
  • Can witnesses be excluded from pretrial matters?
  • Can two witnesses who’ve already testified talk about the trial? What happens if one of them is called back for additional testimony?
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