Federal Evidence Review

Eleventh Circuit notes exception to FRE 615 general witness exclusion rule, in United States v. Edwards, 526 F.3d 747 (11th Cir. 2008)

Most of the time, a party can ask or the court can order that witnesses be excluded during a trial to prevent them from hearing testimony and evidence, under FRE 615 . According to the drafters, FRE 615 promotes the well-established principle that sequestering witnesses “discourage[es] and expos[es] fabrication, inaccuracy, and collusion.” Advisory Committee Notes (1972) (citation omitted). The Eleventh Circuit recently highlighted one of four exceptions under FRE 615.

In Edwards, the defendant was prosecuted for a Ponzi scheme - committing wire fraud based on offering investments for coin-operated phones which were leased back for a guaranteed rate of return. The enterprise went bankrupt. Before trial, the court denied the defendant’s motion in limine to exclude from the courtroom several government witnesses, including victims of the fraud scheme. After his conviction, the defendant claimed he did not receive a fair trial when the court failed to exclude the witnesses before their testimony.

The circuit concluded the defendant received a fair trial. One of the four exceptions under FRE 615 applied. That exception allows “a person authorized by statute to be present.” Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771, the victim has “[t]he right not to be excluded from any ... public court proceeding.” 18 U.S.C. § 3771(a)(3). The trial court may, consistent with the Act, exclude a victim witness if it finds by clear and convincing evidence that the witness’s testimony “would be materially altered if the victim heard other testimony at that proceeding.” Edwards, 526 F.3d at 758 (quoting 18 U.S.C. § 3771). The circuit also rejected the defendant’s claim that the failure to sequester the victim-witnesses deprived him of his “Fifth Amendment due process right to a fair trial and his Sixth Amendment right of confrontation” since “[a] criminal defendant has no constitutional right to exclude witnesses from the courtroom.” Edwards, 526 F.3d at 758.

Unless an exception applies, witnesses are typically excluded before they testify. The four exceptions under FRE 615 in which exclusion is not authorized include:

1. a party who is a natural person, or
2. an officer or employee of a party which is not a natural person designated as its representative by its attorney, or
3. a person whose presence is shown by a party to be essential to the presentation of the party’s cause, or
4. a person authorized by statute to be present."

As the Edwards decision indicates, the Crime Victims’ Rights Act falls within the fourth exception of FRE 615.