In a hearing where witnesses will testify, it is common for an attorney to ask the court to “invoke the Rule.” This shorthand refers to the Rule of Sequestration, which has been applied for centuries dating back to England’s common law courts. See Hernandez v. State, 4 So. 3d 642, 661 (Fla. 2009).
Many attorneys invoke the Rule of Sequestration without any real understanding of the Rule, where it is codified, the exceptions, or how the Rule even operates. An embarrassing number of attorneys (sometimes including attorneys wearing black robes) know little or nothing about the proper application of the Rule, except that witnesses have to wait outside the courtroom during trials and evidentiary hearings.
The purpose of the Rule of Sequestration is to help ensure a fair trial by preventing witnesses from tailoring their testimony to that of earlier witnesses. See Gore v. State, 599 So. 2d 978, 986 (Fla. 1992). This safeguard against collusion helps identify false testimony and discourages fabrication and inaccuracy. See Hernandez, 4 So. 3d at 661-62.
In Florida, the Rule of Sequestration was codified as part of the Florida Evidence Code in 1990. Under section 90.616, Florida Statutes, a party may request or the court on its own may order witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses. A party has the right to demand sequestration of witnesses. See Hernandez, 4 So. 3d at 662-63.
There are statutorily recognized and judicially expanded exceptions to the Rule of Sequestration. Florida law generally follows the Federal Rule of Sequestration, which is found in Rule 615 of the Federal Rules of Evidence. See Goodman v. West Coast Brace & Limb, Inc., 580 So. 2d 193, 195 (Fla. 2d DCA 1991).
Parties to a legal case are never excluded by the Rule. See Fla. Stat. § 90.616(2)(a). This includes nominal parties to the case and the person who brough the action. See Goodman, 580 So. 2d at 195-96. The party exemption does not extend to all real parties in interest, such as potential heirs. See Benjamin v. Tandem Healthcare, Inc., 93 So. 3d 1076, 1083 (Fla. 4th DCA 2012). The party exemption also includes parents in a juvenile delinquency proceeding. See J.R. v. State, 923 So. 2d 1269 (Fla. 1st DCA 2006).
Companies and corporations that are parties to a civil can identify a representative that is also exempt from the Rule. See Fla. Stat. § 90.616(2)(b).
In a criminal case, the Rule does not apply to the victim, the victim’s next of kin, or the parent or guardian of a minor child victim, unless that person’s presence is found to be prejudicial. See Fla. Stat. § 90.616(2)(d). This exception is rooted in the Florida Constitution, which expressly allows the next of kin for homicide victims to be informed, to be present, and to be heard, to the extent that right does not interfere with the Constitutional rights of the accused. See Gore v. State, 599 So. 2d 978, 985-86 (Fla. 1992).
Many judges and attorneys believe that the Rule flatly does not apply to expert witness. This is not correct. Instead, the statute provides that a witness may not be excluded if that person’s presence is shown by the party’s attorney to be “essential to the presentation” of a party’s case. See Fla. Stat. § 90.616(2)(c). Courts often do find that expert witnesses are essential and allow them to remain in the courtroom. See Davis v. Gilchrist County Sheriff’s Office, 280 So. 3d 524, 530 (Fla. 1st DCA 2019).
The essential witness exception, however, is not nearly as “automatic” as many believe. Trial courts are “afforded wide discretion” in determining which witnesses are “essential.” Id. The attorney seeking to avoid sequestration has the burden to demonstrate how and why the presence of the witness is essential. See Hernandez, 4 So. 3d at 663.
To show that a person is essential, a witness must have “specialized knowledge or intimate knowledge of the facts of the case that a party's attorney could not effectively function without the presence and aid of the witness... .” See Goodman v. West Coast Brace & Limb, Inc., 580 So. 2d 193, 195 (Fla. 2d DCA 1991).
Improperly excluding a witness, if prejudicial, can result in a new hearing or trial. See, e.g., Goodman, 580 So. 2d at 196. However, even an improper decision to exclude an expert may be “harmless error” where the attorney could simply ask the expert to assume certain facts. See, e.g., Hernandez, 4 So. 3d at 664; Davis, 280 So. 3d at 530.