In a criminal trial, sequestration of witnesses refers to preventing witnesses who may testify in the trial from hearing the testimony offered by other witnesses. The purpose of the rule is to prevent witness testimony from being affected by hearing what an earlier testifying witness has said. Though a prosecutor may sometimes keep an investigator or other party essential to the presentation of the case at the prosecutor’s table during trial, that person should generally be called as the first witness in the State’s case if that person intends to testify at all. In the recent Tennessee case of State v. Cooper, M2013-01084-CCA-R3-CD (Tenn.Crim.App. 12-17-2014), the Court of Criminal Appeals reversed a conviction due to the State’s violation of this principle.

In the Cooper case, the Defendant was charged with DUI. Only two witnesses testified at trial. Both were police officers who had investigated the alleged crime and interacted with the Defendant at the crime scene. One of those police officers was selected by the prosecutor to remain at the prosecutor’s table during the course of the trial, to assist in the presentation of the State’s case. The prosecutor elected to call the other officer first. The Defendant objected to the order of the witnesses, noting that the officer who was to remain in the courtroom should testify first. The prosecutor incorrectly argued that there was no such rule and that he could call the witnesses in whatever order he preferred. The trial court overruled the Defendant’s objection.

By the time of the motion for new trial, the prosecutor had further researched the question and agreed that there had been a sequestration violation. However, the State argued at that motion and on appeal that no prejudice resulted from the violation.

The Court of Criminal Appeals agreed with the Defendant’s argument that the error harmed the defense of the case. The Defendant’s attorney was planning to impeach both of the witness during cross examination in a similar way and with similar information. By the State’s second witness being able to observe the cross examination of the first, defense counsel was unable to use his cross examination strategy on the first witness without disclosing and revealing the strategy to the second witness. Under the circumstances of this case, the Court of Criminal Appeals found the error merited reversal of the conviction and remand for a new trial.

For more information on rules applying to presentation of evidence at a criminal trial, contact The Lanzon Firm.