CORE CRIMINAL LAW SUBJECTS: Witnesses: Sequestration

2010 (September Term)

United States v. Lofton, 69 M.J. 386 (when asked, a military judge shall exclude witnesses from the courtroom so that they cannot hear the testimony of other witnesses; the purpose of the sequestration rule is to prevent witnesses from shaping their testimony to match another’s and to discourage fabrication and collusion). 


(court-martial spectators should not provide summaries of testimony to sequestered witnesses, and the parties and the military judge should be vigilant in preventing such incidents). 


(prejudice under the sequestration rule of MRE 615 is determined by considering whether the witness’s testimony was affected by the trial proceedings that the witness heard). 


United States v. Quintanilla, 63 M.J. 29 (Military Rule of Evidence 615 provides for the exclusion of witnesses at the request of either party).


United States v. Langston, 53 MJ 335 (MRE 615, “Exclusion of witnesses”, did apply to appellant’s providence inquiry in this mixed-pleas case because:  (1) appellant’s responses during providence inquiry were judicial admissions, the strongest form of proof in our legal system; (2) a full-fledged trial on the merits of contested offenses would follow the plea inquiry; and (3) the sentencing phase of the trial still had to occur).

(military judge’s erroneous decision not to sequester witnesses during appellant’s providence inquiry was harmless and did not materially prejudice appellant’s substantial rights where: (1) there was no reasonable possibility that one witness’s testimony was altered by what she heard during providence inquiry; (2) there was no dispute as to how certain offenses occurred or any conflict with appellant’s admissions during the providence inquiry; and (3) another witness adhered to her version of the events even after hearing appellant’s contrary statements made during the providence inquiry).



United States v. Spann, 51 MJ 89 (military judge erred in relying on 42 USC § 10606 as the basis for rejecting a motion to sequester a victim and her mother who were to testify on sentencing; see MRE 615).

United States v. Roth, 52 MJ 187 (sequestration and sanctions for violations of a sequestration order are matters within the discretion of the court, and such matters will be reviewed on appeal under an abuse of discretion standard).

(MRE 615 dealing with exclusion of witnesses from the court room is a rule of evidence which may be relaxed during the sentencing portion of the trial).

(military judge abused her discretion by excluding testimony of defense rebuttal witness during sentencing as a sanction for non-sequestration where:  (1) the witness was prepared to dispute a significant piece of evidence; (2) government counsel did not ask the witness to leave the room during government’s aggravation evidence, and there is nothing to suggest that defense counsel engaged in any deliberate or willful improper manner; (3) the ultimate sanction of excluding the witness’s testimony should be used ordinarily to punish intentional or willful disobedience of sequestration orders; (4) the government would not have been prejudiced by the testimony of the witness; and, (5) the issue upon which the witness would testify was important in sentencing, and it was fundamentally unfair to leave testimony of government witness unrebutted).

(the ultimate sanction of excluding a witness’s testimony should be used ordinarily to punish intentional or willful disobedience of the military judge’s sequestration orders).

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