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EvidenceProf Blog
Editor: Colin Miller

Central District of Illinois Finds Rule 615(b) Only Covers One Officer/Employee

By Colin Miller

Federal Rule of Evidence 615 states 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.

So, can a party that is not a natural person designate more than one officer or employee to be exempt from sequestration under Rule 615(b)? That was the question addressed by the United States District Court for the Southern District of Illinois in its recent opinion in United States v. Sheffler, 2021 WL 2742742 (C.D.lll. 2021).

In Sheffler,  the defendants sought an order sequestering non-party witness under Rule 615. In response,

The Government d[id] not object to the exclusion of witnesses as requested. The Government claim[ed], however, that the parties and parties’ representatives, Federal Bureau of Investigation Special Agents Angela Bray and Price McCarty, [we]re exempt from this requirement. 

In response, the court,

determined that the Government will be adequately represented by one case agent at trial. Rule 615(b) refers to “an officer or employee” who is designated as the “party’s representative.” Rule 615(b) does not refer to multiple individuals serving as the party’s representative. Because of the pandemic, there remains a strong interest in minimizing the number of people in the Courtroom. Accordingly, the Defendants’ motion is granted as to sequestration of witnesses.

Interestingly, the government and/or the court didn’t address whether one FBI agent could qualify for exclusion under Rule 615(b) and the other could qualify for exclusion under Rule 615(c).

-CM