Civil Litigation Criminal Law Legal Topics Litigation Strategy Trial Strategy

Witnesses In or Out of the Courtroom?

One more trial decision for you: Do you want to keep nonparty witnesses out of the courtroom while other witnesses testify or let them stay and listen in?

On motion, usually at the beginning of trial, the judge may exclude nonparty witnesses from the courtroom while other witnesses testify under Evid C §777.  Note that a party, and a designated officer or employee of a party that’s not a natural person, can’t be excluded. Evid C §777(b)-(c).

There are sound reasons and advantages to excluding witnesses from the courtroom while other witnesses testify, or invoking the “rule on witnesses” as it is sometimes called, including that it

  • Keeps witnesses from being influenced, consciously or unconsciously, by the testimony of other witnesses;  
  • Prevents your opponent’s witnesses from tailoring their testimony; and
  • Prevents accusations by your opponent that your witnesses have tailored their testimony.

The principal disadvantage is that it’s sometimes useful and efficient for witnesses to refer to other testimony. If your witnesses haven’t seen the trial, they can’t comment on what other witnesses said unless you feed them that information during your direct examination. Witnesses may also recognize important matters in other witnesses’ testimony that you may not have fully grasped.

If you do decide to ask that a witness be kept out, and your motion is granted, make sure to ask the judge to admonish all witnesses, either directly or through counsel, not to discuss their testimony with other witnesses until the trial is over.

Because witness evidence is often crucial, CEB has you covered with everything you need to know about calling, recalling, and excluding witnesses in Effective Introduction of Evidence in California, chap 6.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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