Sequestration of witnesses

   In my years on the bench, I have found that at the start of almost every criminal or civil trial and at hearings when witnesses are to be called, a motion to sequester witnesses is made by one side or the other or both. Invariably the motion is granted. I would daresay that all of my fellow judges rule the same way.

    There are some very important reasons for this and accordingly I present the following.

    The word “sequestration” comes to us from the Latin word “sequestrare,” which means to “place in safekeeping.”

    As to witnesses, it describes the legal term for the removal of potential witnesses from the courtroom until it is their turn to testify and informing them that they shouldn’t discuss the case with or reveal their testimony to any other witness.

      This is a procedure, which goes back to biblical times and is sometimes called putting a witness “under the rule.”

The United States Supreme Court has described the purpose of sequestration as follows:

       “The aim of imposing the rule on witnesses is twofold. It exercises a restraint on witnesses tailoring their testimony to that of earlier witnesses and it aids in detecting testimony that is less than candid.”

Under both the Federal and Michigan Rules of Evidence, there are three exceptions to sequestration: (1) a party who is a natural person; (2) an officer or employee of a party who is not a natural person designated as its representative by its attorney; (3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause.

      An example of the third exception is when the officer in charge in a criminal case is allowed to stay in the courtroom to help the prosecutor.

If a witness violates a sequestration order there are three recognized sanctions: (1) contempt; (2) permitting cross examination as to the violation; (3) precluding the witness from testifying.

     Witness sequestration has proven to be an effective way of determining the truth and has been called one of the “greatest engines” that man has invented to gauge the individual honesty of each witness.

For a very interesting perspective on all of this, I recommend “Sequestration Of Lay Witnesses And Experts” by my former evidence law professor Ralph Slovenko available online.

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