705.11Exclusion of Witnesses [Rule 615]

The Basic Rule

Rule 615 – Exclusion of Witnesses

G.S. 8C-615 (re-formatted for clarity).

This entry provides a brief summary of Rule 615 for reference. For a more detailed discussion about witness sequestration, including the procedures for requesting it, designating exempted witnesses, and seeking sanctions for violations, see the related Trial entry on Witnesses and Subpoenas: Sequestering a Witness. See also Jessica Smith, “Sequestration of Witnesses,” North Carolina Superior Court Judges’ Benchbook, Dec. 2011.

Legal Overview

The exclusion of witnesses, commonly referred to as “sequestering” witnesses, is authorized by both Rule 615 and G.S. 15A-1225 (“Exclusion of Witnesses”). The two rationales for sequestering witnesses during a trial are to prevent later witnesses from attempting to tailor their testimony to match up to a previous witness and to assist the trier of fact in detecting testimony that is “less than candid.” See State v. Conoway, 339 N.C. 487 (1995); State v. Johnson, 128 N.C. App. 361 (1998).

The judge may order sequestration of witnesses at the request of a party or on the court’s own motion. See G.S. 8C-615 (“at the request of a party” or “of its own motion”); G.S. 15A-1225 (“upon motion of a party”); State v. Stanley, 310 N.C. 353 (1984) (trial judge has authority to “sequester witnesses before, during, and after their testimony”).

The decision to exclude witnesses (other than the classes of witnesses specifically exempted from the rule – see below) is left to the sound discretion of the court, allowing the judge “to take into account such things as the physical setting of the trial. However, the practice should be to sequester witnesses on request of either party unless some reason exists not to.” G.S. 8C-615, Official Commentary. See State v. Jackson, 309 N.C. 26 (1983) (order to sequester is issued in sound discretion of trial judge); State v. Willard, 293 N.C. 394 (1977) (grant or denial of motion to sequester is within discretion of trial court).

The sequestration order may apply to some or all of the witnesses, and may apply to the entire trial or only to certain portions of it. See State v. Garcell, 363 N.C. 10 (2009); State v. Stanley, 310 N.C. 353 (1984).

There are four types of witnesses who may not be excluded under this rule:

1. A party who is a natural person (e.g., the defendant). G.S. 8C-615; see also G.S. 15A-832(e) (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).
2. An officer/employee of a party that is not a natural person (e.g., a business or the state) who has been designated as the representative of that party (e.g., a manager of the business or the lead investigator in the case). See United States v. Parodi, 703 F.2d 768 (4th Cir. 1983).
3. A person whose presence is shown by a party to be essential to the presentation of his cause (e.g., an expert witness who needs to hear the testimony of another witness in order to form his or her final opinion). See State v. Jones, 337 N.C. 198 (1994); State v. Stanley, 310 N.C. 353 (1984)
4. A person whose presence is determined by the court to be in the interests of justice (e.g., the parent of a young child who is testifying). See G.S. 15A-1225; State v. Weaver, 117 N.C. App. 434 (1994).

If a witness violates the court’s sequestration order, the judge may respond with sanctions such as excluding the witness’s testimony or holding the witness in contempt. See Holder v. United States, 150 U.S. 91 (1893). The judge also may instruct the jury that it should consider the sequestration violation when weighing the credibility of the witness’s testimony. See id.; State v. Wilson, 322 N.C. 117 (1988).