Monday, October 15, 2012


Under the common law from time immemorial witnesses are barred from listening to the testimony of other witnesses during a trial. This is known as the rule of Witness Sequestration which Clearwater Criminal Defense Attorneys often invoke by motion after a Jury is sworn but but before the first witness testifies. The reasoning behind Witness Sequestration is that a witness who hears other testimony during a trial will be influenced by that testimony adding to the possibility of collusion or falsification of evidence.

Here's an excerpt of Florida's codification of the common law rule on witness sequestration:
90.616 Exclusion of witnesses. 
At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses .....except in a criminal case, the victim of the crime, the victim’s next of kin, the parent or guardian of a minor child victim, or a lawful representative of such person, unless, upon motion, the court determines such person’s presence to be prejudicial.
federal case agents like zacherie zacharian do not have to abide by Witness Sequestration rules as do other witnesses in criminal trials Federal Court in Tampa Bay the Middle District of Florida
Degas, Zacherie Zacharian,1886
Under Florida law even the victim of a crime is not guaranteed a seat during the trial if it may be prejudicial to a fair trial. As the goal of every criminal trial should be to give the Defendant a fair trial you'd think that this rule of witness sequestration would be common to every court in Florida, but the rule does not always apply in Federal trials though Federal Rules of Evidence 615 is similarly written.

In Federal criminal trials the Assistant United States Attorney trying a case selects a Government "case agent" who sits with the prosecutor throughout the entire trial, listening to all of the evidence, then testifies.

Here is a recent email received from a fellow lawyer and budding socialist, Steven Kalar, Senior Litigator, Federal Defender's Office, San Francisco:
Comrades:    It is an aggravating thing, to have the government's key witness sit through a trial, watch all of your crosses, and adapt his or her testimony in response. That's what happens when a government witness is designated as a "case agent"--  a regrettable exception to the sequestration procedures in Federal Rule of Evidence 615.  The case of Valencia-Riascos illustrates this unfair government gambit. U. S. v. Valencia-Riascos (9th Cir. Oct.11, 2012). In Valencia-Riascos, the "case agent" was an ICE Agent named Miller. Miller was the only witness to an assault alleged against the defendant. Agent Miller was not only allowed to sit and watch the entire trial, but was also allowed to testify last (after hearing all the crosses). The district judge even refused to give the (relatively standard) cautionary instruction about law enforcement witnesses.    
Assistant Federal Defender Rebecca Pennell went after the sequestration rulings under Federal Rule 615, alleging a due process violation... Judge Graber, unfortunately, was unpersuaded in all respects (though she threw us a little helpful scrap of dicta at the end of the case). 
Although this California opinion is not binding in the Middle District of Florida in Tampa, the Courts in Florida follow a similar rule allowing government case agents to avoid the rule of sequestration. Your Clearwater Criminal Defense Lawyer agrees that fair trials in Florida Courts require fair rules of criminal procedure, shouldn't Federal Courts require case agents to either testify before hearing all the evidence or leave the courtroom like other witnesses?