212.1Sequestering a Witnesses
Key Concepts
- Trial court has broad authority to order sequestration to ensure accurate and truthful testimony from each witness.
- Sequestration order can extend beyond trial to include conduct outside the courtroom or at pre-trial hearings.
- Violation of a sequestration order is punishable as contempt or by other sanctions such as exclusion of testimony.
Sequestration of Witnesses
Sequestering witnesses is designed to serve two purposes: (i) to prevent a later witness from tailoring his or her testimony to that of a prior witness; and (ii) to assist the finder of fact in detecting unreliable testimony. See State v. Harrell, 67 N.C. App. 57 (1984); State v. Jackson, 309 N.C. 26 (1983). Sequestration of witnesses until they testify is authorized by both G.S. 15A-1225 and Rule of Evidence 615, which allow sequestration upon motion of either party or the court’s own motion. However, Rule 615 does not authorized the exclusion of the following four types of witnesses:
1. A party who is a natural person.
Thus, the defendant may not be sequestered. Sequestration of the victim is not prohibited under the statute. However, if the victim is going to be called as a witness, “every effort” should be made to permit the “fullest attendance possible” by the victim, as long as it does not otherwise interfere with the defendant’s right to a fair trial. G.S. 15A-832(e).
2. An officer or employee of a party that is not a natural person designated as its representative by its attorney.
This exception allows a person such as a police officer or other lead case agent to remain in the courtroom, if that person is designated by the prosecutor as the representative of the state. See United States v. Parodi, 703 F.2d 768 (4th Cir. 1983) (determining that investigating officer qualified for a substantially similar exception under Rule 615 of the Federal Rules of Evidence).
3. Person whose presence is shown by a party to be essential to the presentation of his cause.
This category likewise allows a lead case officer to remain in court, but it also applies to witnesses such as an expert who needs to hear the testimony of another witness in order to render his opinion. See State v. Jones, 337 N.C. 198 (1994) (allowing officer to remain in court as a person who presence was essential to presenting the state’s case); State v. Stanley, 310 N.C. 353 (1984) (allowing a DSS worker and a juvenile case officer to remain in courtroom during victim’s testimony, as both were instrumental in preparing the case and necessary to assist in the examination of the witness).
4. A person whose presence is determined by the court to be in the interest of justice.
For example, the court may determine that in the interest of justice it will allow the parent or guardian of a young child to remain in court while the child testifies, even if that person may also testify later. See State v. Weaver, 117 N.C. App. 434 (1994); see also G.S. 15A-1225 (allowing, but not mandating, presence of parent or guardian while minor child testifies). The Official Commentary to Rule 615 states that when relying upon this exception, “the court should state the reasons supporting its determination that the presence of the person is in the interest of justice.”
Procedure and Order
A motion to sequester witnesses should ordinarily be made before trial and in writing, but no statute prohibits making the request after the jury is empaneled. See State v. Mason, 295 N.C. 584 (1978). As noted in the Official Commentary to Rule 615, sequestration is recommended "as a means of discouraging and exposing fabrication, inaccuracy and collusion." See State v. Wilds, 133 N.C. App. 195 (1999); State v. Anthony, 354 N.C. 372 (2001). However, the trial judge’s decision to grant or deny sequestration is discretionary, and it will be reversed only upon a showing of abuse of discretion. See State v. Fullwood, 323 N.C. 371 (1988); vacated on other grounds, 494 U.S. 1022 (1990); State v. Harrell, 67 N.C. App. 57 (1984).
If sequestration is ordered, the court has broad authority to tailor its order to meet the needs of the particular case, even reaching outside the courtroom. For example, the court may order that witnesses not interact with each other before trial or while waiting outside of the courtroom, and it may also sequester witnesses during pre-trial motions hearings. See Geders v. United States, 425 U.S. 80 (1976) (recognizing broad authority of court to sequester witnesses before, during and after their testimony); State v. Stanley, 310 N.C. 353 (1984) (similar holding); State v. Jackson, 309 N.C. 26 (1983) (court could order separation before trial of two cell-mates); State v. Hyde, 352 N.C. 37 (2000) (court had discretion to allow or deny sequestration during pretrial motions hearing); State v. Byrd, 67 N.C. App. 168 (1984) (judge has discretion regarding sequestration of witnesses at trial and probable cause hearings).
Violation of a Sequestration Order
Witnesses who violate the court’s sequestration order are subject to sanctions, including contempt of court. See Holder v. United States, 150 U.S. 91 (1893). Additionally, the court may remedy the violation by instructing the jury to consider the violation in assessing the credibility of the witness’s testimony, or by permitting cross-examination regarding the violation. See State v. Wilson, 322 N.C. 117 (1988). The court may also exclude (or strike) the witness’s testimony or even declare a mistrial, though such remedies are usually reserved for only the most egregious violations which result in prejudice to the defendant. See State v. Howell, 343 N.C. 229 (1996) (state’s inadvertent violation of sequestration order did not warrant mistrial); State v. McGraw, 137 N.C. App. 726 (2000) (defendant failed to show prejudice, judge had discretion in how to address minor violation of sequestration order).
Excluding a defense witness
If a defense witness is prohibited from testifying as a sanction for violating a sequestration order, the defendant will likely argue on appeal that this violated his constitutional right to present a defense, particularly if the violation by the witness happened without the defendant’s knowledge or participation. See, e.g., United States v. Cropp, 127 F.3d 354 (4th Cir. 1997). However, a number of North Carolina cases have approved of excluding the witness’s testimony in such cases, and found no abuse of discretion or prejudice to the defense. See, e.g., State v. Williamson, 122 N.C. App. 229 (1996); State v. Williamson, 110 N.C. App. 626 (1993); State v. Sings, 35 N.C. App. 1 (1978).
Nevertheless, given the risk that such an exclusion could potentially result in issues on appeal, a lesser sanction may be preferable in some cases. For example, depending on the circumstances, aggressively cross-examining the witness about the fact that he or she remained in court and listened to the other witness testify so they could "get their story straight” might be very effective with the jury.
