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LOS ANGELES — Cases often turn on the corroboration of one witness’s testimony by another witness. Where this is likely to occur, it is obviously essential for the courts to prevent witness collusion. Sequestration is the principal method courts use to isolate witnesses and safeguard their testimony. But how effective are witness sequestration orders in practice? Do they have the legal breadth to prevent crafty witnesses from colluding with each other if they’re bent on doing so? Are the remedial measures appropriate to deter flagrant violations of the orders? In 1975, Federal Rule of Evidence 615 vested a party with the power to ask the court to “order witnesses excluded so that they cannot hear the testimony of other witnesses.” The rationale behind the rule is straightforward and concise; it enables the court to ferret out fabricated testimony (by, say, a second witness who fails to corroborate testimony of a first witness) and prevents witnesses from otherwise tailoring their testimony to the testimony of other witnesses. Unfortunately, the parameters of the rule are insufficient to achieve the desired results. These days, it takes no imagination to contemplate one witness’s testimony being available for a sequestered witness even without the person sitting in court to hear it. Accordingly, courts have recently begun to enforce Rule 615 with this reality in mind, expanding the rule’s coverage to preclude even the sneakiest of witnesses from legally circumventing the rule. The Fifth Circuit U.S. Court of Appeals’ decision in Miller v. Universal City Studios, Inc., (1981) 650 F.2d 1365, illustrates the point. There, the district court had entered the standard sequestration order applicable to all witnesses. The defendant opportunistically interpreted the order narrowly, assuming it precluded a witness only from hearing another witness’s testimony. The defense — thinking it was within the rule’s dictates — gave its expert witness transcribed parts of testimony from other witnesses. The court found this to be a clear violation of the sequestration order and prohibited the expert from testifying. The court’s purpose is “to prevent the shaping of testimony by one witness to match that of another and to discourage fabrication and collusion.” Axiomatically, “the opportunity to shape testimony is as great with a witness who reads trial testimony as with one who hears the testimony in open court.” (This decision may have gone one step too far in a rather basic way. Since experts are not percipient witnesses, and their opinion normally depends on evidence provided by others, the expert in Miller should not have been sequestered in the first place.) Practically speaking, an attorney who suspects the other side of violating a witness sequestration order must use cross-examination to prove his case. Rarely will counsel catch the other side in the act or have access to any direct evidence of witness collusion. In cases with a sequestration order in place, counsel should ask hostile witnesses how they prepared for their day in court and if they reviewed any transcripts or discussed the case with any of the attorneys, parties or other witnesses. Courts will not normally entertain arguments from parties who violate even the spirit of the court’s order. Therefore, witnesses who meet and discuss testimony outside the courtroom or witnesses who read trial transcripts or discuss the trial with others in attendance routinely are found to violate Rule 615. See Reeves v. International Telephone and Telegraph Corp., 616 F.2d 1342 (5th Cir. 1980). That rule held that meeting and discussion of the case between 11 witnesses and counsel in preparation for testimony constituted a direct and flagrant violation of the sequestration order. See also United States v. McMahon, 104 F.3d 638 (4th Cir. 1997), which said a witness’s reading of trial transcripts and debriefing from his secretary about the trial’s progress violated the sequestration order. The courts recognize that “the sequestration order is a product of common sense and its purpose is obvious; it is not a subtle legal doctrine as to which [a party's] plea of ignorance might have some force.” Id at 644. Textual arguments notwithstanding, the purpose of Rule 615 governs its scope. Perhaps as important as finding an actual violation of a witness sequestration order is deciding on the appropriate sanction for such a violation. A witness’s violation of Rule 615 could radically alter the course of a trial, depending on the sanction imposed. The determination of the appropriate sanction is within the sound discretion of the trial court. The U.S. Supreme Court has recognized three types of sanctions for violating a sequestration order: (1) holding the offending witness in contempt; (2) permitting cross-examination concerning the violation; and (3) precluding the witness from testifying. See United States v. Hobbs, 31 F.3d 918, 921 (9th Cir. 1994), (citing Holder v. United States, 150 U.S. 91, 92 (1893)). Although trial courts are authorized to use all three, disqualification of a witness “should not be imposed lightly.” Id. “Unless the violation has somehow so discredited the witness as to render his testimony incredible as a matter of law, he should not be disqualified from testifying, since a refusal to permit him to testify penalizes the litigant rather than the disobedient witness himself.” Taylor v. United States, 388 F.2d 786 (9th Cir. 1967). Because a witness’s carelessness and resulting disqualification ultimately penalizes the litigant, it is the litigant’s behavior that generally determines how severely the courts will punish a violation of Rule 615. If the violation occurred with the “consent, connivance, procurement or knowledge of counsel,” the trial court may justifiably exclude the witness’s testimony. Reeves, supra at 1355. On the other hand, if the defendant or counsel has not participated in the violation of the order, the “exclusion of a witness is a strongly disfavored sanction because of the severe consequences it holds for the defendant.” United States v. Hobbs, 31 F.3d 918, 922 (9th Cir. 1994). The interpretation of Rule 615 to prohibit witness collusion, both inside and outside the courtroom, by spoken and written word, significantly reduces the likelihood that opportunistic testimony will reach the trier of fact. Additionally, by examining the motivation behind any violation of the rule, paying particular attention to whether the party or the witness generated the violation, courts have effectively constructed a remedial system that should effectively deter both the conniving and the careless would-be violator of the rule. It’s vital that witnesses are prepared by their lawyers to tell the truth, so that even the temptation to “compare notes” can be avoided. David T. Moran is a litigation associate at Manatt, Phelps & Phillips in Los Angeles.

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