Delaware Trial Handbook § 12:7. SEQUESTRATION OF WITNESSES

At the request of a party or upon the court’s own motion, a court, in its discretion, may order sequestration of witnesses so that they cannot hear the testimony of other witnesses.57 The purpose of sequestration is to prevent one witness’s testimony from being influenced or shaped by the testimony of other witnesses.58 Moreover, by allowing exposure of differences in testimony, sequestration functions as a simple yet effective device for the detection of inconsistencies and fabrications.59

Sequestration is generally ordered for the benefit of the opposing party, not the party calling the witnesses.60 A request for sequestration should be made out of the presence of the jury,61 preferably before any witnesses have testified, although such a motion can be made at a later time, as the need arises.62

Any sequestration order may not include (1) a party to the action who is a natural person; (2) an officer or employee of a party to the action that is not a natural person, designated as its representative by its attorney; or (3) a person whose presence is shown by a party to be essential to the presentation of the cause.63 In a criminal case, the chief investigative police officer, being an officer of the State and often an important trial aid to the prosecutor, may be exempted from a sequestration order.64 Expert witnesses may also be exempted from any sequestration order, since their opinions are often based upon the testimony of other witnesses, and so their presence does not conflict with the policies underlying sequestration.65  By statute in criminal trials the victim and his or her family may not be excluded from the courtroom during any stage of a proceeding absent a showing of good cause by the defendant.65.1

Upon entering a sequestration order, the trial court should expressly  admonish the witnesses not to discuss  their own testimony or the testimony of any other witnesses with any other person   until after the trial has concluded.66 Violation of a sequestration order does not preclude the witness from testifying unless the violation was deliberately procured by the party calling the witness.67 Further, the admission of testimony of a witness who violated a sequestration order is not reversible error absent a showing of actual prejudice.68 To determine whether violation of a sequestration order has caused prejudice, a court should consider (i) the seriousness of the violation, (ii) its impact on the witness’s testimony, and (iii) its probable impact on the outcome of the trial.69

57. D.R.E. 615; Condon v. State, 597 A.2d 7, 13 (Del. 1991), cert. denied, 128 L. Ed. 2d 53 (U.S. 1994); Hamann v. State, 565 A.2d 924, 929 (Del. 1989); Van Arsdall v. State, 486 A.2d 1, 9 (Del. 1984), vacated on other grounds, 475 U.S. 673 (1986); Young v. State, 431 A.2d 1252, 1254 (Del. 1980), cert. denied, 454 U.S. 972 (1981); Holmes v. State, 422 A.2d 338, 340 (Del. 1980); Shields v. State, 374 A.2d 816, 821 (Del. 1977), cert. denied, 434 U.S. 893 (1977); Derrickson v. State, 321 A.2d 497, 499 (Del. 1974); Grace v. State, 314 A.2d 169, 169-70 (Del. 1973); Morris v. Morris, No. 360, 1991, slip op. at 2, Walsh, J. (Del. May 8, 1992) (ORDER), disposition reported at 610 A.2d 726 (Del. 1991) (TABLE); Scott v. State, No. 299, 1989, slip op. at 3, Holland, J. (Del. June 7, 1990) (ORDER), disposition reported at 577 A.2d 755 (Del. 1990) (TABLE).

58. Martin v. State, 433 A.2d 1025, 1035 (Del. 1981), cert. denied, 454 U.S. 1151 (1982); Grace v. State, 314 A.2d 169, 170 (Del. 1973); Scott v. State, No. 299, 1989, slip op. at 3, Holland, J. (Del. June 7, 1990) (ORDER), disposition reported at 577 A.2d 755 (Del. 1990) (TABLE).

59. Grace v. State, 314 A.2d 169, 170 (Del. 1973).

60. Morris v Morris, No. 360, 1991, slip op. at 2, Walsh, J. (Del. May 8, 1992) (ORDER), disposition reported at 610 A.2d 726 (Del. 1991) (TABLE).

61. State v. McAllister, Cr. A. Nos. IN-91-05-2034-2035, slip op. at 4, Herilhy, J. (Del. Super. Dec. 9, 1991), aff’d mem., 630 A.2d 1102 (Del. 1993).

62. Derrickson v. State, 321 A.2d 497, 499 (Del. 1974).

63. D.R.E. 615; Hamann v. State, 565 A.2d 924, 929-30 (Del. 1989); Burke v. State, 484 A.2d 490, 497 (Del. 1984).

64. Taylor v. State, 849 A.2d 405, 408 (Del. 2004); Hamann v. State, 565 A.2d 924, 929-30 (Del. 1989);  Van Arsdall v State, 486 A2d 1 (Del. 1984), vacated on other grounds, 475 U.S. 673 (1986); Burke v. State, 484 A.2d 490 (Del. 1984); Grace v. State, 314 A.2d 169 (Del. 1973). See also Condon v. State, 597 A.2d 7 (Del. 1991), cert. denied, 511 U.S. 1008 (1994) (court has discretion to permit two investigating officers to be exempted from sequestration order where the crimes occurred in two different jurisdictions and the officers had investigated separate incidents).

65. Scott v. State, No. 299, 1989, slip op. at 3, Holland, J. (Del. June 7, 1990) (ORDER) (Del. June 7, 1990), disposition reported at 577 A.2d 755 (Del. 1990)(TABLE). See also D.R.E. 615, commentary.

65.1. 11 Del. C. § 3512.

66. Fountain v. State, 382 A.2d 230, 231 (Del. 1977).

67. Derrickson v. State, 321 A.2d 497, 500 (Del. 1974); Young v. State, 431 A.2d 1252, 1254 (Del. 1980), cert. denied, 454 U.S. 972 (1981). Cf. Williams v. State, 494 A.2d 1237, 1242-43 (Del. 1985) (prosecutor’s discussion with sequestered witness during break in testimony not prejudicial per se).

68. Derrickson v. State, 321 A.2d 497, 500 (Del. 1974); Fountain v. State, 382 A.2d 230, 231 (Del. 1977).

69. Dunham v. State, No. 298, 1984, slip op. at 2, Horsey, J. (Del. Mar. 27, 1985) (ORDER), disposition reported at 497 A.2d 786 (Del. 1985) (TABLE).

© 2010  David L. Finger