Thursday, February 19, 2015

On the exclusion of witnesses at trial and in depositions

In Vince v. Com., the Virginia Court of Appeals in an unpublished opinion by Judge Decker held that the defendant had an absolute right to the exclusion of witnesses (other than the "victim") from her criminal trial under Va. Code § 19.2-265.1, but that the trial court's error in allowing the Commonwealth's expert witness to remain in the courtroom to hear the defendant's testimony was harmless error.

In its discussion, the Court rejected analogies to Rule 615 of the Federal Rules of Evidence, which gives the trial court discretion that the Virginia statute explicitly does not.

The parallel statute for civil cases, Va. Code § 8.01-375, includes a partial exception for expert witnesses, but only "[w]here expert witnesses are to testify in the case" and "at the request of all parties," or when the case involves equitable distribution or child support or spousal support. 

The Rule was not always so in Virginia, evidently mandatory exclusion of witnesses on the motion of the parties became the law by way of an amendment to the Code in 1975, which makes one wonder why the legislature saw fit at that to eliminate judicial discretion on this issue, not a progressive decision in my view.

Arguably, the civil  statute applies during the taking of depositions by way of Rule 4:5(c), which provides that "[e]xamination and cross-examination of witnesses may proceed as permitted at trial." The federal rule on depositions Rule 30(c) excepts Rule 615 from the rules of evidence that apply during the taking of depositions. About this provision, the Rules Advisory Committee wrote:

"[T]he revision addresses a recurring problem as to whether other potential deponents can attend a deposition. Courts have disagreed, some holding that witnesses should be excluded through invocation of Rule 615 of the evidence rules, and others holding that witnesses may attend unless excluded by an order under Rule 26(c)(5). The revision provides that other witnesses are not automatically excluded from a deposition simply by the request of a party. Exclusion, however, can be ordered under Rule 26(c)(5) when appropriate; and, if exclusion is ordered, consideration should be given as to whether the excluded witnesses likewise should be precluded from reading, or being otherwise informed about, the testimony given in the earlier depositions. The revision addresses only the matter of attendance by potential deponents, and does not attempt to resolve issues concerning attendance by others, such as members of the public or press."

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