We’ve all seen police shows on TV where investigators keep witnesses or suspects away from each other so they can’t get together to keep their stories straight. For essentially the same reason, judges may do something similar with witnesses at trials, ordering them to stay away from the trial before they testify to keep them from hearing each other’s testimony. Witness exclusion orders (sometimes called witness sequestration or separation orders) may also forbid certain behavior outside of the courtroom. However, they can’t be used to prevent defendants or some other witnesses from attending the trial.
Sequestering a Witness: What Is It and Why Does it Happen?
When a witness is “sequestered” it just means that they’ve been excluded from the courtroom. Sequestering or excluding witnesses is normally intended to prevent them from tailoring their testimony to what other witnesses have said. This helps the jury figure out the truth by noticing inconsistencies in the testimonies of different witnesses.
When Do Judges Exclude Witnesses From the Courtroom?
Under federal court rules, judges must exclude witnesses whenever it’s requested by one of the parties (the defendant, the prosecutor, or, in a civil case, the person who filed the lawsuit). Federal judges can also decide on their own to exclude witnesses. (Fed. R. Evid. 615 (2023).)
States have similar rules. But in some states, judges aren’t required to grant a request to sequester witnesses; instead, they have the power to decide whether the order is needed.
Usually, judges order that witnesses be excluded at the beginning of trial before anyone testifies. But when it’s appropriate, a judge might decide to exclude witnesses after the trial has gotten underway, or during pretrial hearings.
Do Sequestration Orders Restrict What Witnesses Can Do Out of Court?
Many courts have concluded that the rules authorizing witness exclusion orders cover conduct outside the courtroom—like talking to other witnesses or reading transcripts of their testimony. (See United States v. Robinson, 895 F.3d 1206, 1215 (2018).) After all, what good does it do to exclude a witness from hearing testimony in court if they can just ask the witness later what they said or read a transcript of their testimony?
Nonetheless, in some jurisdictions, a witness exclusion order doesn’t automatically cover conduct outside of court. Often, in those jurisdictions, a judge can add specific restrictions to the order that cover out-of-court communications.
Are Any Witnesses Exempt From Exclusion Orders?
Criminal defendants have a constitutional right to be present in the courtroom during all the testimony. So even if they plan to take the stand, judges can’t exclude them. Federal and most state rules also exempt certain other witnesses from exclusion orders, including:
- any party, or the representative of a party that’s not a person (like the government)
- a witness whose presence at the trial is essential to a party’s case, such as the lead detective in a criminal case; or
- anyone who’s authorized to be at the trial under law.
Expert witnesses aren’t necessarily exempt from exclusion orders, but lawyers often argue that they need their help during the trial because of their specialized knowledge.
Some states give crime victims the right to attend the entire trial.
What Are the Penalties for Violations of Witness Exclusion Orders?
When witnesses violate exclusion orders, the judge may come up with appropriate measures, such as:
- allowing the lawyer for the other side to cross-examine the witness about the violation and challenge the witness’s credibility
- explaining to the jurors how they should evaluate the witness’s credibility in light of the violation
- citing the witness (and any lawyers who were responsible for the violation) for contempt of court
- disqualifying the witness from testifying, or
- declaring a mistrial, ordering a new trial, or reversing the judgment.
Most courts agree that judges shouldn’t use the last two types of penalties except in extraordinary situations where nothing else is sufficient to ensure a fair trial. When deciding whether to prevent the witness from testifying, a judge should consider (1) how serious the violation was, (2) whether allowing the witness to testify would probably affect the outcome of the trial, and (3) whether the party who called the witness was responsible for the violation.
Although it's up to the judge to decide how to deal with a violation, they have to be careful when it involves a defense witness: A defendant has a constitutional right to a fair trial and to present a complete defense. Barring defense witnesses from testifying could violate these rights when their testimony is important to the defense.
In the reverse scenario, where prosecution witnesses disobey the sequestration orders, judges might be more likely to impose harsh penalties on the prosecution, especially if the witnesses had help from government lawyers.
In one famous example, during Zacarias Moussaoui’s trial related to the 9/11 attacks, the judge ordered that witnesses could not attend or follow the trial (including by reading transcripts) before they testified. After a government lawyer provided seven key witnesses with transcripts of other witnesses’ previous testimony, the judge barred any testimony from those seven witnesses.