The Fourth Circuit Rules on Rule 615-Adjacent Conduct
Federal Rule of Evidence 615 provides that
At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;
(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
(d) a person authorized by statute to be present.
While Rule 615 only literally covers excluding witnesses from the courtroom, judges also frequently go beyond Rule 615 such as informing witnesses that they must not discuss their testimony with other witnesses in the case. So, if a defendant claims that the trial judge erred in connection with Rule 615-adjacent conduct, how should an appellate court rule? That was the question addressed by the Fourth Circuit in its recent opinion in United States v. Ali, 2021 WL 1050003 (4th Cir. 2021).
In Hassan Ali, Hassan Ali led a band of thieves on a spree of armed robberies in July 2013. At trial, after a witness testified, the judge informed counsel that she would “instruct the rest of the witnesses not to discuss their testimony with other witnesses after they g[o]t off the witness stand.” Subsequently, after one of Ali’s co-defendant’s testified, the court released him “for the day but failed to instruct him not to discuss his testimony with the other co-defendants.”
After he was convicted, Ali appealed, claiming that this was error. In response, the Fourth Circuit began by noting that
Federal Rule of Evidence 615 governs the exclusion and sequestration of witnesses at trial. It requires the district court at the request of a party to “order witnesses excluded so that they cannot hear other witnesses’ testimony.”…This rule exists “to prevent the possibility of one witness shaping his testimony to match that given by other witnesses at the trial.”…Rule 615 itself “serves only to exclude witnesses from the courtroom.”…This interpretation follows common sense because it is only in the courtroom that a witness’s speech is “testimony.” When a court has denied a request to remove a witness from the courtroom, we have not required the defendant to show prejudice but rather have applied the rule “strictly” and vacated the conviction.
But the court then added that
When the complained-of conduct falls outside the Rule’s text, however, this presumption does not apply. District courts frequently employ their discretionary authority to strengthen their sequestration orders outside of the courtroom….In such circumstances, we have not presumed prejudice and have required a greater showing by the defendant that he was harmed by out-of-courtroom conversations between witnesses….Several sister circuits have done the same. See Engelmann, 701 F.3d at 878 (remanding for an evidentiary hearing when there were no factual findings on which to determine prejudice); Solorio, 337 F.3d at 594 (requiring defendant to show prejudice); United States v. Green, 293 F.3d 886, 891-92 (5th Cir. 2002) (same); Virgin Islands v. Edinborough, 625 F.2d 472, 474 (3d Cir. 1980) (same).
The reasons for this different treatment are manifold. First, the Rule’s text mandates courtroom exclusion of witnesses upon request; it leaves no discretion to the district court. Any further measures, however, imposed by the court are matters of discretion, not of right, and thus deserve the kind of deference we generally afford to questions of trial management….Second, hearing in real time the lawyers’ questions and the witnesses’ responses presents the scenario most susceptible to the sort of testimonial tailoring that the court cannot remedy. But when witnesses are relying on memory during out-of-court conversations, they are more likely to transmit mistaken or incomplete recollections and thus more likely to be caught on a thorough cross-examination by the defendant’s lawyer. Finally, this differential treatment aligns with our approval of different remedies for violations of a sequestration order depending on the circumstances and the severity of the violation.
Applying this analysis, the Fourth Circuit found that there was new prejudice and affirmed Ali’s conviction.
-CM