By The Honorable Earl G. Penrod

IN MANY TRIALS, witnesses are required to remain outside the courtroom during the case and are prohibited from hearing or discussing the testimony of other witnesses. A Motion to Exclude/Separate/Sequester Witnesses typically is granted at the beginning of the trial and witnesses are advised of the specific requirements in the order.

The purpose of excluding witnesses from the courtroom and prohibiting communication among witnesses during trial is to avoid having the testimony of one witness influenced, intentionally or inadvertently, by the testimony of other witnesses.

When there is an Order of Separation/Sequestration in a criminal trial, the defendant will be permitted to remain in the courtroom during the entire trial, regardless of whether the defendant will testify. Also, most jurisdictions allow the state/prosecution to designate one representative, such as the lead or investigating officer, to remain in the courtroom throughout the trial, even if that person will testify at some point.

Separation/Sequestration Orders are relatively common, but the specific restrictions may differ from jurisdiction to jurisdiction. Even a conscientious and experienced law enforcement witness may run into a problem in a particular court or in a specific case.

For example, sometimes a police officer on the witness stand is asked whether he or she has talked to anyone about the case. If the officer interprets the question to be an inquiry about a possible violation of the Separation/Sequestration Order, the officer may deny any conversation or communication. However, the order does not prohibit an officer from communicating with the prosecuting attorney, and the officer may have talked to witnesses and others during the investigation of the case. Therefore, the defense attorney may follow up the denial with questions about the officer’s previous conversations with the prosecuting attorney or communications held as part of the investigation. Even though the officer can explain what was meant by the earlier denial, the exchange is not to the officer’s advantage.

Another potential problem may surface when the officer arrives to testify after the trial has commenced, and the officer has not been made aware of the existence of or specifics of an Order of Separation/Sequestration. Most officers understand the inadvisability of walking into a courtroom while another witness is on the stand, but officers should also appreciate that there may be other less obvious mandates imposed by the order.

TIP TO TESTIFY: Every police officer witness must be aware of Orders of Separation/Sequestration and comply with
the restrictions and requirements.

The Honorable Earl G. Penrod is a Judge of the Gibson Superior Court in Indiana.

This article originally appeared in the October 2016 issue of The LEL.