Rule 615--the rule of exclusion

If you handle any trial work, you’ll encounter “the rule.”?Lawyers will say something like, “I’d like to invoke the rule.”?They’re talking about Federal Rule of Evidence 615 or the state analogue.?If you’re a new lawyer or just haven’t dealt with disputes about the rule, then you might benefit from a little refresher.?

Of course, the point of the rule is to prevent witnesses from hearing other evidence and altering their testimony because of that other evidence.?So one point: don’t rely on the rule to exclude someone who isn’t a witness.?Perhaps you have another basis (e.g., the person is disruptive), but that isn’t a Rule 615 issue.??

The rule has some exceptions.?One that often leads to disagreements is a person whose presence is “essential to presenting the party’s claim or defense.”?For awhile in Arizona, some lawyers argued that an expert’s presence always was essential. Our Supreme Court rejected that argument in Spring v. Bradford, 243 Ariz. 167 (2017). Instead, you need to show that your expert’s presence or reading of trial testimony is essential. And you need to do so before the expert hears or reads the testimony!

“Great. My opponent violated the rule by giving transcripts to a witness. I’m entitled to a mistrial and sanctions, right?”?No.?Spring also explained that you must show prejudice from the violation. Federal courts take the same approach.?E.g., 29 Wright & Miller, Federal Practice & Procedure: Evidence § 6246 (2d ed. Apr. 2022 update).?You’ll more likely show prejudice when the violation relates to an important fact witness, rather than an expert. And you’ll probably need to show how the witness altered testimony after receiving the transcripts, etc.?[Regardless of who bears this burden, no judge will be happy if a lawyer violates the rule.?Just don’t do it.]

If the court won’t grant a mistrial or exclude the witness’ testimony, then think about other remedies. Maybe you cross-examine the witness about the violation or ask for an instruction/comment about it. 29 Wright & Miller, Federal Practice & Procedure: Evidence § 6246.?Jurors expect fair play; violating court orders isn’t fair.??

“The rule refers to excluding witnesses so ‘they cannot hear other witnesses’ testimony.’? Why is reading transcripts improper?”?Spring involved providing transcripts, and the Court said the rule prohibited it.?It’s a commonsense approach that federal courts also follow.?29 Wright & Miller, Federal Practice & Procedure: Evidence § 6243.?You violate the rule if a witness hears someone else’s testimony or reads transcripts.?Please don’t do that.??

You’re the lawyer.?You know what is expected.?Lay witnesses probably don’t.?It is important to remind your witnesses that they can’t listen to or review other witnesses’ testimony (assuming the court invokes the rule).?Don’t leave it to chance.?In this era of witnesses testifying via video links that are publicly accessible, your guidance is even more important.?

Now this post isn’t only about rule violations. Think about pragmatic approaches, too. In expert-intensive cases, lawyers often agree that their experts may review their counterparts’ testimony. Medical malpractice cases often include that agreement for standard of care and causation experts. Antitrust cases often allow competing economists to do so. Consider that stipulation if your case involves dueling experts.??

Finally, changes to Rule 615 are coming. The federal courts are poised to amend the rule to clarify that a party is entitled to one corporate representative who can attend trial. Organizational parties sometimes try to have multiple representatives appear at different times throughout trial. Another clarification is that the court may enter other orders to prohibit disclosing testimony to witnesses or allowing them to access testimony. Nearly every court agrees the existing rule implies that power, but this amendment eliminates any ambiguity. Here is a link to the contemplated amendments:

https://www.uscourts.gov/sites/default/files/preliminary_draft_of_proposed_amendments_-_august_2021_0.pdf