Colo. R. Evid. 615
(Federal Rule Identical.)
CRE 615
Annotation Law reviews. For article, "A Deposition Primer, Part I: Setting Up the Deposition", see 11 Colo. Law. 938 (1982). For article, "Rule 615: Exclusion of Witnesses", see 24 Colo. Law. 1299 (1995). Policy reasons for sequestration rule are to prevent a witness from conforming his testimony to that of another and to discourage fabrication and collusion. Martin v. Porak, 638 P.2d 853 (Colo. App. 1981). Purpose of rule is accomplished under rule's terms by ordering witnesses to withdraw from courtroom until called; however, to make rule effective, court may also direct witnesses not to discuss case with each other. People v. Brinson, 739 P.2d 897 (Colo. App. 1987). This rule applies only to witnesses, not attorneys. Thus, an attorney's discussion of one witness's testimony with a prospective witness does not violate the rule. People v. Villalobos, 159 P.3d 624 (Colo. App. 2006). A court has discretion, in appropriate circumstances, to grant an exception allowing a witness to impeach the testimony of a criminal defendant after hearing the defendant's testimony. Trial court properly granted exception to sequestration order by allowing prosecution's toxicologist to hear defendant's testimony and testify in response thereto. People v. Scarlett, 985 P.2d 36 (Colo. App. 1998). For the purposes of determining who may be excluded from a pretrial deposition, CRCP 26(c)(5) and not this rule controls. Hamon Contractors, Inc. v. District Court, 877 P.2d 884 (Colo. 1994). When denial of sequestration mandates new trial. A trial court's error in denying a sequestration request does not mandate a new trial unless the requesting litigant demonstrates that the error constitutes sufficient prejudice to amount to an abuse of discretion. Martin v. Porak, 638 P.2d 853 (Colo. App. 1981); Williamson v. Sch. District No. 2, 695 P.2d 1173 (Colo. App. 1984). Corporation's officers allowed to remain in courtroom. Although witnesses who are officers of a party-corporation are not formally designated as representatives, the trial court may still allow the witnesses to remain in the courtroom. Jefferson-Western Corp. v. Chefas, 670 P.2d 431 (Colo. App. 1983). Rule prohibits the sequestration of an officer or employee of a nonnatural party who has been duly designated as its representative. People v. Cheeks, 682 P.2d 484 (Colo. 1984). Determination of whether there has been a violation of a sequestration order and the penalty or sanction to be imposed are all matters resting within the discretion of the court. People v. P.R.G., 729 P.2d 380 (Colo. App. 1986). Where trial court simply ordered district attorney to tell his witnesses not to talk to each other about their testimony, the sequestration order had not been violated when prosecutor talked to his witnesses in a group prior to presentation of any evidence. People v. Brinson, 739 P.2d 897 (Colo. App. 1987). It is in the trial court's discretion to determine the appropriate penalty for a violation of a sequestration order. People v. Johnson, 757 P.2d 1098 (Colo. App. 1988). In determining whether to impose sanctions for violation of sequestration order, court must consider three things: (1) The involvement, or lack thereof, of a party or his counsel in the violation of the order; (2) the witness' actions and state of mind in his violation of the order and whether the violation was inadvertent or deliberate; and (3) the subject matter of the violation in conjunction with the substance of the disobedient witness' testimony. People v. P.R.G., 729 P.2d 380 (Colo. App. 1986). Test applied in People v. Melendez, 80 P.3d 883 (Colo. App. 2003), aff'd on other grounds, 102 P.3d 315 (Colo. 2004). The supreme court modified the first factor set forth above to require evidence of the party's or counsel's consent, connivance, procurement, or knowledge regarding the violation before a sanction can be imposed against that party. People v. Melendez, 102 P.3d 315 (Colo. 2004). In determining whether to impose sanctions for violation of a sequestration order, the trial court must consider, in addition to other things, the subject matter of the violation in conjunction with the substance of the testimony of the disobedient witness. Also, in order to prevail, the defendant must show that the witness' testimony would have been different but for the conversation which violated the court's order. People v. Johnson, 757 P.2d 1098 (Colo. App. 1988). Sanctions for violation of a sequestration order, in addition to a mistrial, fall into three categories: (1) Citing the witness for contempt; (2) permitting comment on the witness' noncompliance in order to reflect on his credibility; or (3) refusing to let the witness testify or striking his testimony. People v. P.R.G., 729 P.2d 380 (Colo. App. 1986). It was an abuse of discretion to impose the extreme sanction of witness exclusion without an inquiry into the factors governing the imposition of such a sanction, and, in particular, without evidence that the defense was at fault for the violation. People v. Melendez, 80 P.3d 883 (Colo. App. 2003), aff'd, 102 P.3d 315 (Colo. 2004). Prejudice resulting from violation of a sequestration order must be shown in order to require granting of a mistrial. People v. P.R.G., 729 P.2d 380 (Colo. App. 1986). A victim's right to be present at all critical stages of the criminal justice process under Const. Art. II § 16 a and § 24-4.1-302.5(1)(d) takes precedence over a party's right to sequester witnesses under this rule. The father of a murder victim who testified in the defendant's trial was wrongly excluded from subsequent portions of the trial. People v. Coney, 98 P.3d 930 (Colo. App. 2004). Applied in People v. Beltran, 634 P.2d 1003 (Colo. App. 1981).