Article VI. Witnesses

219

Rule 615: Exclusion of witnesses.

At the request of a party the court shall order witnesses, including rebuttal witnesses, excluded at trial or other adjudicatory hearing. In the court's discretion, the requested sequestration may be effective before voir dire, but in any event shall be effective before opening statements. The court shall order all persons not to disclose by any means to excluded witnesses any live trial testimony or exhibits created in the courtroom by a witness. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) a person designated by counsel for a party that 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. This rule does not forbid testimony of a witness called at the rebuttal stage of a hearing if, in the court's discretion, counsel is genuinely surprised and demonstrates a need for rebuttal testimony from an unsequestered witness.

[Amended by order effective July 1, 1997.]

Advisory Commission Comments.

The Commission took a realistic view of the sequestration rule. If "The Rule"is to be meaningful, witnesses should not only be instructed to refrain from discussing their courtroom testimony, but lawyers and others should be instructed not to transmit what witnesses say in court. Note that rebuttal witnesses are covered by the proposal, contrary to current Tennessee practice.

This rule does not prohibit a witness from reviewing depositions of other witnesses before testifying.

Under subsection (3) in the final sentence, the court has discretion to allow a witness to remain in the courtroom or even at counsel table if the witness's presence is "essential to the presentation of the party's cause." Such a witness might be an expert witness a lawyer needs to help the lawyer understand opposing testimony. Also, an expert witness who is to learn facts only through hearing testimony in court could be allowed to sit in the courtroom under this subsection. See Rule 703.

If a witness inadvertently and unintentionally hears some trial testimony, the sense of the rule would permit the judge to allow the witness to testify if fair under the circumstances.

Advisory Commission Comments [1992].

Under Rule 101, the Evidence Rules apply to rulings in "trial courts."  Strictly speaking, Rule 615 is intended to apply only to sequestration of witnesses at trial. A lawyer who wishes to exclude nonparties from oral depositions must resort to T.R.Civ.P. 26.03(5), allowing on motion a protective order" that discovery be conducted with no one present except persons designated by the court."

Advisory Commission Comments [1997].

The amended rule contains three changes. One gives the court discretion to delay sequestration until after voir dire, perhaps because of a need to ask prospective jurors whether they know the witnesses.

The second change modifies the second category of persons not sequested. A "party that is not a natural person" includes, among other entities, a corporation and the State of Tennessee. Consequently, the prosecuting attorney could designate a crime victim, a relative of a crime victim, or an investigating officer. Like category (1), category (2) is a matter of right. Category (3), in contrast, is a matter of judicial discretion.

The third change is addition of a sentence at the end of the rule to give the court authority to make an exception for rebuttal witnesses. Such an exception requires, however, a dual showing of genuine surprise and demonstrable need.

Note that the rule prohibits disclosure of live testimony "by any means." A lawyer may mention subject matter to a witness not yet called, even though the subject matter has been raised by evidence. Care must be taken, however, to avoid implying to the potential witness what an earlier witness said from the stand.

Advisory Commission Comment [2004].

Expert witnesses generally should be considered “essential persons” and therefore should not be sequestered. In State v. Bane, 57 S.W.3d 411, 423 (Tenn. 2001), the Court stated:  “[W]e believe that the dangers Rule 615 is intended to prevent generally do not arise with regard to expert witnesses in any proceeding.”

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