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United States District Judge Leonie M. Brinkema recently barred the government from calling key witnesses in the penalty phase of the terrorism trial of Zacarias Moussaoui. The court found that a government lawyer, Carla J. Martin, had violated the judge’s pretrial sequestration order by improperly coaching defense witnesses. Judges can exclude witness if sequestration is violated Witness sequestration orders under Federal Rule of Evidence 615 are not unusual. However, it is unusual for them to garner so much public attention. As a closer look at Rule 615 reveals, judges are well within their powers to exclude witnesses in response to violations of sequestration orders. Moreover, a lawyer who knowingly facilitates a violation of the order may be subject to criminal contempt. Rule 615 provides that the court, either at the request of a party or on its own motion, may issue an order excluding witnesses from the courtroom so that they cannot hear the testimony of other witnesses before they testify. The purpose of Rule 615 is to prevent witnesses from tailoring their testimony and to aid in detecting dishonesty. See U.S. v. Collins, 340 F.3d 672, 681 (8th Cir. 2003). The rule codifies trial judge’s common law powers to prevent “the influencing of a witness’ testimony by another witness.” U.S. v. Solorio, 337 F.3d 580, 592 (6th Cir. 2003), quoting U.S. v. Rugiero, 20 F.3d 1387, 1392 (6th Cir.), cert. denied, 513 U.S. 878 (1994). In addition to barring potential witnesses from the courtroom, a sequestration order may also bar these witnesses from following the trial proceedings in other ways, such as reading court transcripts. The Rule 615 order issued by Brinkema on Feb. 22, 2006, contained such a provision. Brinkema’s order also recognized that Rule 615 exempts parties and case agents from sequestration orders. See U.S. v. Riddle, 193 F.3d 995 (8th Cir. 1999) (case agents exempted). The rule provides that sequestration orders may not bar: (1) a party who is a natural person, (2) a representative for a party which is not a natural person, or (3) “a person whose presence is shown by a party to be essential to the presentation of the party’s cause[.]” See Milicevic v. Fletcher Jones Imps. Ltd., 402 F.3d 912, 915-16 (9th Cir. 2005) (attorney may be exempted as party’s representative). It also exempts victims and victim representatives who are authorized to be present by statute. The courts have held that an expert may be “a person whose presence is . . . essential to the presentation of the party’s cause.” As such, some experts may be allowed to remain in the courtroom during other witnesses’ testimony. See Fed. R. Evid. 615(3) advisory committee notes. See U.S. v. Seschillie, 310 F.3d 1208 (9th Cir. 2002) (trial judge had erred by barring the defense expert from the courtroom). Similarly, the court has discretion to permit the parent of a young witness to be present in the courtroom as a person whose presence is “essential” to the presentation of the case. See, e.g., Govt. of the Virgin Islands v. Edinborough, 625 F.2d 472 (3d Cir. 1980). The court has wide discretion in fashioning an appropriate remedy for a Rule 615 violation. See U.S. v. Collins, 340 F.3d 672, 680-81 (8th Cir. 2003); U.S. v. Cropp, 127 F.3d 354, 363 (4th Cir. 1997) (citing Holder v. U.S., 150 U.S. 91, 93 (1893)). Commonly, judges do exactly what Brinkema did. They will bar the witness from testifying if the witness violated the sequestration order. See, e.g., U.S. v. Tedder, 403 F.3d 836, 840 (7th Cir. 2005). Judges, however, have other options. See generally U.S. v. Solorio, 337 F.3d 580, 593-594 (6th Cir. 2003). A violation of a sequestration order does not automatically bar a witness’s testimony. See Holder, supra; U.S. v. Davenport, No. 99-1210, 2000 U.S. App. Lexis 21204, at 10 (6th Cir. Aug. 14, 2000) (unpublished). Judges can choose to allow opposing counsel to cross-examine the witness regarding the inappropriate conduct and in that way highlight for the jury the problems with the witness’s credibility. See, e.g., U.S. v. Posada-Rios, 158 F.3d 832 (5th Cir. 1998). Additionally, judges may hold the offending witnesses and lawyers in contempt and instruct the jurors regarding the violation. Finally, courts can limit the scope of a witness’s testimony so as to avoid any prejudice arising from violation of the sequestration order. Some courts will only bar the testimony of witnesses if the lawyers knew of the sequestration violation at the time it took place. See U.S. v. Gibson, 675 F.2d 825 (6th Cir. 1982). These courts are reluctant to impose an exclusion order unless there has been an intentional violation of their orders. See U.S. v. Hobbs, 31 F.3d 918 (9th Cir. 1994) (it was an error for a court to exclude testimony of two defense witnesses who entered the courtroom without defense counsel’s knowledge). However, other courts will freely exclude witnesses, especially if they believe that the witnesses or counsel were reckless in failing to comply with the court’s order. See, e.g., U.S. v. McMahon, 104 F.3d 638, 645 (4th Cir. 1997) (“studied ignorance” is no defense to contempt for violating Rule 615 order). There are times when the prosecution should be particularly careful about heeding a court’s sequestration order. For example, in U.S. v. Casas, 356 F.3d 104 (1st Cir. 2004), the government agent was in the courtroom at the beginning of trial when the court introduced each of the defendants to the jury. If the defense had made a timely objection, it could have argued that the agent’s subsequent identification of the defendant was tainted. It is important that the parties consider whether they should ask for orders beyond the typical Rule 615 order. For example, opening statements can also taint a witness’s testimony. Technically, Rule 615 only refers to barring a witness from listening to other witness “testimony.” See U.S. v. Brown, 547 F.2d 36 (3d Cir. 1976). It is best for the parties to seek a supplemental order excluding a witness from the courtroom during counsel’s opening remarks. Similarly, the circuits have split on the question of whether “the scope of Rule 615 extends beyond the courtroom to permit the court to preclude out-of-court communication between witnesses about the case during trial.” Charles Alan Wright and Victor James Gold, 29 Federal Practice & Procedure � 6243, at 61 (1997). Some courts construe the rule to also prohibit witnesses from discussing their testimony, or what has occurred at trial, with other witnesses who have not yet testified. U.S. v. Salcido-Luzania, No. 92-2399, 1999 U.S. App. Lexis 5882 (10th Cir. March 31, 1999) (unpublished); U.S. v. Greschner, 802 F.2d 373, 375-76 (10th Cir. 1986). Yet others will not construe a Rule 615 order so broadly. See U.S. v. Scharstein, 531 F. Supp. 460 (E.D. Ky. 1982). For example, some courts have held that a standard Rule 615 order does not in itself bar witnesses from being in the same holding cell where they can easily discuss their testimony. For these courts, a supplemental order from the judge is required. See, e.g., U.S. v. Collins, 340 F.3d 672, 681 (8th Cir. 2003). It is widely accepted that courts have the power to issue such supplemental orders but they must be requested. See U.S. v. Sepulveda, 15 F.3d 1161, 1176 (1st Cir. 1993), cert. denied, 512 U.S. 1223 (1994). A lesson to be learned from the ‘Moussaoui’ case If there is a broad sequestration order, counsel must be careful not to violate it in preparing witnesses or in having case agents question witnesses. As happened in Moussaoui’s penalty-phase trial, if a government representative conveys to a witness what other witnesses have said, or how their testimony needs to fit into the government’s overall case, there can be a breach of the sequestration order. See U.S. v. Salcido-Luzania, No. 97-2399, 1999 U.S. App. Lexis 5882 (10th Cir. March 31, 1999) (unpublished). Yet not all courts read Rule 615 as directly applying to the lawyer’s witness preparation. For example, in U.S. v. Rhynes, 218 F.3d 310 (4th Cir. 2000) (en banc), the trial judge excluded a key defense witness because of what he perceived to be a violation of his sequestration order. On appeal, Rhynes convinced the en banc court that the judge had erred and that his counsel’s conduct in preparing the witness for his upcoming testimony did not violate the sequestration order in a manner that merited the sanction imposed. In a lengthy opinion reversing the conviction, the court held that the lawyer’s conduct did not violate the sequestration order because of the lawyer’s ethical duties to prepare his case for trial. Nonetheless, Judge Paul V. Niemeyer’s dissent highlighted how counsel’s involvement in violating a sequestration order is not just a technical violation. Rather, if counsel intentionally acts as a “go-between” for prospective witnesses, such conduct is a serious violation of professional standards. Finally, counsel must be alert as to the potential impact of improper communications between courtroom spectators and sequestered witnesses. While courts do not generally mention contact with courtroom spectators in their orders, such a clear instruction can also help to prevent witness tampering. See U.S. v. Vallie, 284 F.3d 917 (8th Cir. 2002). As one court observed, “It is not at all uncommon for trial attorneys to treat sequestration orders under Rule 615 in a nonchalant manner, but a cavalier approach is not advisable.” U.S. v. Williams, 136 F.3d 1166, 1169 (7th Cir. 1998). Brinkema’s actions in Moussaoui’s trial have made this abundantly clear. The outcome of any case, including a high-profile one, can depend upon a thorough understanding of Rule 615 and the law of sequestration orders. Laurie L. Levenson is a professor of law, William M. Rains Fellow and director of the Center for Ethical Advocacy at Loyola Law School, Los Angeles.

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