Motion to exclude nontestifying witnesses from courtroom
Motion to exclude nontestifying witnesses from courtroom
After the jury is chosen, and outside its presence, defense counsel will generally make a motion to exclude all witnesses from the courtroom until they testify. If there is any chance that two prosecution witnesses will be inconsistent in their testimony, exclusion of witnesses maximizes that possibility. It is particularly common to have more than one police officer testifying, and it is frequently useful to separate and cross-examine them about matters that do not appear in their reports. For example, representatives of the victim company who view computing from different perspectives (for instance, the head of security and the EDP auditor) may respond to the same question very differently owing to their job focus or to differences in customary jargon. Separation of these witnesses will make it easier to conduct such a cross-examination.
The suggestion that the motion be made out of the presence of the jury is premised on the fact that the jury dislikes being kept in the dark and will distrust the attorney every time he or she attempts to keep evidence from them. It is, of course, quite possible to attempt to counteract this reaction by putting forth questions on voir dire designed to elicit the response that the juror recognizes that the defendant has a right to keep from the jury certain types of evidence that the court has ruled inadmissible and that counsel would be negligent if he or she did not make such motions on their client's behalf. On the other hand, if counsel's chosen image is friend of the court acting to protect his or her own client by assuring that the rules are followed, making this motion in front of the jury may not be strategically dangerous.
Once a witness has testified, he or she may ask to hear the testimony that follows their own. Before consenting to such a request, counsel should keep in mind that this witness might be called in rebuttal. If it appears likely that denying the request will put counsel in a bad light before the jury, it may be wise to settle this question at the same time that counsel moves to exclude witnesses. A ruling by the court that no witnesses may return to the courtroom after their testimony can avoid any appearance of attempting to limit the flow of information during the trial.FN88