"THE" RULE: MODERNIZING THE POTENT, BUT OVERLOOKED, RULE OF WITNESS SEQUESTRATION.

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Date: Oct. 2021
From: William and Mary Law Review(Vol. 63, Issue 1)
Publisher: College of William and Mary, Marshall Wythe School of Law
Document Type: Article
Length: 23,599 words
Lexile Measure: 2190L

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Abstract :

Starting with its illustration in the Apocrypha and continuing into the modern day both in courtrooms and in ubiquitous criminal procedurals, one evidence rule has proven so powerful that it has become known as "THE" Rule of Evidence. The rule of witness sequestration demands that multiple witnesses to the same events be examined separately from one another to prevent them from, consciously or subconsciously, tailoring their testimony to ensure that it remains consistent. Witness sequestration is conceptually simplistic and famously mighty. Yet, this bedrock protection against inaccurate trial testimony is imperiled by conflicting interpretations of Federal Rule of Evidence 615, the Rule that provides sequestration protection in federal court. In some circuits, the Rule is narrowly construed in accordance with its plain language to prohibit witnesses only from remaining physically present in the courtroom during testimony. Under this view, the Rule offers no protection against testimonial tailoring outside the courtroom. Yet, remaining physically present during the testimony of other witnesses is not the only means by which a prospective witness might adapt her testimony to match that of other witnesses. Although extra-tribunal witness coordination has always been possible, the explosion in technology and the recent specter of COVID-19 have multiplied exponentially options for testimonial tailoring beyond the courtroom doors. For this reason, some circuits construe terse "Rule 615" orders broadly to prohibit witness collaboration and access to testimony beyond the trial setting. Although these circuits afford the full complement of sequestration protection, their expansive construction of succinct "Rule 615" orders generates fairness concerns about inadequate notice of proscribed witness behavior. This Article details the competing interpretations of Rule 615 orders adopted by the federal courts and examines the merits and demerits of each approach. It further elucidates the philosophical divide reflected in the circuit split, exposing the textualist and purposive theories of rule construction animating the opposing views. The Article ultimately proposes detailed alternatives for revising Rule 615, offering draft language that could be adopted to memorialize either of the federal approaches to witness sequestration in amended rule text.

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Gale Document Number: GALE|A684683456