Should You Sequester Witnesses?

By Evidence ProfBlogger 

Texas Rule of Evidence 614 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 and, in civil cases, that person’s spouse;

(b) after being designated as the party’s representative by its attorney:

(1) in a civil case, an officer or employee of a party that is not a natural person; or

(2) in a criminal case, a defendant that is not a natural person;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) the victim in a criminal case, unless the court determines that the victim’s testimony would be materially affected by hearing other testimony at the trial.

So, can a defendant in a family violence case have a family-violence expert excluded from the courtroom when he testifies? That was the question addressed by the Texas Court of Appeals, Waco, in its recent opinion in Parrish v. State, 2021 WL 627934 (Tex.App. 2021).

In Parrish, Marcus Parrish was charged with assault family violence and sought to invoke Rule 614 to exclude a family-violence expert from the courtroom testimony. The judge denied his request, Parrish was convicted, and he appealed. On appeal, the court concluded thatthe Court of Criminal Appeals has held that a trial court is vested with discretion and may permit expert witnesses to be exempt from “the Rule,” so they may hear other witnesses testify and then base their opinions on such testimony….Prior to appellant’s testimony during the guilt-innocence phase of trial, appellant objected to the presence of Detective Michelle Starr of the Waco Police Department in the courtroom during his testimony, arguing that she is a fact witness in the case because she was the detective on the case, and because she drafted and signed the arrest-warrant affidavit. The State responded that Detective Starr had been designated as an expert in Assault Family Violence and that her presence was necessary to “observe the way [appellant] answers the questions and—and the way he behaves in the courtroom to be able to testify to that,” especially with regard to relationships between “assault family violence victims and perpetrators.”As noted above, the Court of Criminal Appeals has held that the trial court is vested with discretion and may permit expert witnesses to be exempt from “the Rule” so they may hear other witnesses testify and then base their opinions on such testimony….Therefore, in line with these cases, we find no abuse of discretion. The purpose articulated by the State regarding Detective Starr’s testimony—allowing a domestic violence expert to take appellant’s testimony into account when offering her opinion—falls within the exemptions provided for in the rule.

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