§ Rule 615. Sequestration of witnesses

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Rule 615. Sequestration of witnesses

At the request of a party or on its own motion, the court may order witnesses sequestered so that they cannot learn of the testimony of other witnesses. This section does not authorize sequestration of the following:

(1) a party who is a natural person or the guardian of a party who is a minor or an incapacitated person;

(2) an officer or employee of a party which is not a natural person (including the Commonwealth) designated as its representative by its attorney; or

(3) a person whose presence is shown by a party to be essential to the presentation of the party's cause.

Comment: Pa.R.E. 615 differs from F.R.E. 615. Pa.R.E. 615 uses the term “sequestration” instead of “exclusion” and substitutes “learn of” for “hear” in the first sentence. It also puts sequestration within the discretion of the court rather than making it mandatory upon motion of a party. Finally, Pa.R.E. 615 adds the guardian of a minor or incapacitated person to the first category of persons whom the court may not sequester.

Sequestration, i.e., barring a witness from the courtroom during the testimony of other witnesses and prohibiting direct and indirect communication both in and out of the courtroom is designed to discourage and expose fabrication, collusion, inaccuracies and inconsistencies. 1 McCormick, Evidence, § 50 (4th ed. 1992). Placing it within the discretion of the trial court is in conformity with Pennsylvania law. See Commonwealth v. Albrecht, 510 Pa. 603, 511 A.2d 764 (1986) (the decision of the trial court on whether or not to sequester a witness will not be reversed absent a clear abuse of discretion). Examples of abuse of discretion may be found in Commonwealth v. Fant, 480 Pa. 586, 391 A.2d 1040 (1978) and Commonwealth v. Turner, 371 Pa. 417, 88 A.2d 915 (1952)(refusal to sequester detectives who allegedly witnessed inculpatory statement).

The three categories of persons listed in Pa.R.E. 615 whom the court may not sequester are akin to those in the Federal Rule, with some slight differences. Clause (1) covers natural persons who are parties; their exclusion would raise constitutional problems of confrontation and due process. The inclusion of guardians of parties who are minors or incapacitated persons is consistent with Pa.R.Civ.P. 2027 (minors) and 2053 (incapacitated persons), which place the conduct of actions on behalf of those parties under the supervision and control of their guardians. Clause (2) applies to the designated representatives of a party that is not a natural person. The parenthetical phrase relating to the Commonwealth does not appear in F.R.E. 615(2); it is meant to make clear that in a criminal case, the prosecution has a right to have the law enforcement agent primarily responsible for investigating the case at the counsel table to assist in presenting the case, even though the agent will be a witness. See Notes of the Committee on the Judiciary, Senate Report No. 93-1274, and Advisory Committee Notes to F.R.E. 615(2). Clause (3) refers to persons such as the one who handled the transaction involved in the case or an expert relied upon by counsel for advice in managing the litigation.

The trial court has discretion in choosing a remedy for violation of a sequestration order. See Commonwealth v. Smith, 464 Pa. 314, 346 A.2d 757 (1975). Remedies include ordering a mistrial, forbidding the testimony of the offending witness, or an instruction to the jury. Commonwealth v. Scott, 496 Pa. 78, 436 A.2d 161 (1981).

The provisions of Pa.R.E. 615 are subject to the control of the trial court under Pa.R.E. 611(a).