Rule 615  Exclusion of witnesses.  At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion.  This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause. [L 1980, c 164, pt of §1; gen ch 1985]

 

RULE 615 COMMENTARY

 

  This rule is identical with Fed. R. Evid. 615, the Advisory Committee's Note to which points out that "the efficacy of excluding or sequestering witnesses has long been recognized as a means of discouraging and exposing fabrication, inaccuracy, and collusion."  See 6 Wigmore §§1837-1841 (Chadbourn rev. 1976); Harkins v. Ikeda, 57 H. 378, 557 P.2d 788 (1976); State v. Leong, 51 H. 581, 583, 465 P.2d 560, 562 (1970).

  The authorities differ, however, on whether such exclusion is subject to judicial discretion or is mandatory on a motion of any party.  The present rule adopts the latter position.  This modifies prior Hawaii case law, which has held that exclusion of witnesses is discretionary.  Hawaiian Ocean View Estates v. Yates, 58 H. 53, 564 P.2d 436 (1977); Yoshitomi v. Kailua Tavern, Ltd., 39 H. 93, 98 (1951).

  The present rule does not address the question of the appropriate judicial penalty in the event of violation by a witness of an exclusion order, as this is a procedural rather than an evidentiary concern.  However, the Hawaii Supreme Court addressed this point and held in Yoshitomi that the trial court's refusal to admit the testimony of a witness who had disobeyed the exclusion order was within the scope of sound judicial discretion.  39 H. at 98-99.  In Leong, however, the court distinguished Yoshitomi by implication, holding that the trial court's refusal in a criminal case to admit the testimony of a defense witness who had violated the exclusion rule constituted reversible error, violating the defendant's "constitutional right to have witnesses testify in his favor."  51 H. at 586, 465 P.2d at 562-63.

 

Case Notes

 

  No abuse of discretion where witness was not scheduled to testify and had observed part of the trial.  71 H. 347, 791 P.2d 392 (1990).

  Purpose of rule is to codify practice of sequestering witnesses to discourage or expose fabrication, inaccuracy, and collusion.  73 H. 331, 832 P.2d 269 (1992).

  Witness whose presence shown to be essential.  4 H. App. 498, 669 P.2d 163 (1983).

  The defendant had the burden of proving there was either prejudice or an abuse of discretion.  7 H. App. 488, 782 P.2d 886 (1989).

  Permitting officer-witness to view a diagram that had previously been marked by other witnesses did not violate the trial court’s witness sequestration order issued pursuant to this rule; as the officer responsible for recovering and documenting evidence during the search and seizure, officer had no reason to be influenced by or rely upon markings made by other witnesses, and trial court took sufficient remedial action by permitting defendant to cross-examine officer about officer’s viewing of the diagram. 114 H. 162 (App.), 158 P.3d 280 (2006).

 

 

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