At page 293 Applying rule 615 to rebuttal witnesses and harmless error25 citing cases“to prevent witnesses from 'tailoring' their testimony to that of earlier witnesses and to aid in detecting testimony that is less than candid.”
- United States v. Ortiz, No. 24-11032 (5th Cir. May 20, 2026).unpublishedNonetheless, there is one here in that Dr. Hail was an expert, and experts are ordinarily exempt from the Rule, which the district court recognized when deciding to allow Dr. Hail to testify. 54 conversation during cross-examination.” 353…
- W. Towboat Co. v. Vigor Marine LLC, No. 2:20-cv-00416 (W.D. Wash. June 25, 2021).Vigor also moves for exclusion of non-exempt witnesses after they testify. 6 U.S. v. Ell, 718 F.2d 291, 293 (9th Cir. 1983).
- Emma Spring v. Timothy R. Bradford, No. CV-17-0068-PR (Ariz. Oct. 23, 2017).published Under Rule 615(c), a court is not authorized to exclude “a person whose presence a party shows to be essential to presenting the party’s claim or defense.” ¶14 The purpose of Rule 615 is “to prevent witnesses from ‘tailoring’ their testimo…
- State Of Washington v. Phonsavanh Phongmanivan, No. 66858-7 (Wash. Ct. App. June 24, 2013).unpublishedFurther, Dalit testified consistently with a 21 718 F.2d 291, 293-94 (9th Cir. 1983). 22 ER 615; Adams. 76 Wn.2d at 659 . -11- NO. 66858-7-1/12 statement she gave the police shortly after the shooting and her defense interview.
- Larson v. Palmateer, 515 F.3d 1057 (9th Cir. 2008).published The purpose of witness exclu- sion is “to prevent witnesses from ‘tailoring’ their testimony to that of earlier witnesses and to aid in detecting testimony that is less than candid.” United States v. Ell, 718 F.2d 291, 293 (9th Cir. 1983).
- United States v. Emerson Seschillie, 310 F.3d 1208 (9th Cir. 2002).published “The purpose of this rule is to prevent witnesses from ‘tailoring’ their testimony to that of earlier witnesses.” United *1213 States v. Ell, 718 F.2d 291, 293 (9th Cir.1983).
- United States v. Ward, 18 F. App'x 502 (9th Cir. 2001).unpublishedUnited States v. Ell, 718 F.2d 291, 293 (9th Cir. 1983).
- United States v. Jackson, 60 F.3d 128 (2d Cir. 1995).publishedSee Brewer, 947 F.2d at 411 (“ ‘[W]hen a court fails to comply with Rule 615, prejudice is presumed and reversal is required unless it is manifestly clear from the record that the error was harmless or unless the prosecution proves harmles…
- United States v. Jackson, 60 F.3d 128 (2d Cir. 1995).publishedSee Brewer, 947 F.2d at 411 (" '[W]hen a court fails to comply with Rule 615, prejudice is presumed and reversal is required unless it is manifestly clear from the record that the error was harmless or unless the prosecution proves harmles…
- United States v. Jeffrey James Brewer, 947 F.2d 404 (9th Cir. 1991).published “The rule makes the exclusion of witnesses a matter of right and the decision is no longer committed to the court’s discretion as it once was.” United States v. Ell, 718 F.2d 291, 292 (9th Cir.1983).
Show 12 more citing cases
- United States v. Vickie J. Wylie, 919 F.2d 969 (5th Cir. 1990).published United States v. Ell, 718 F.2d 291, 293 (9th Cir.1983); United States v. Lamp, 779 F.2d 1088, 1095 (5th Cir.), cert. denied, 476 U.S. 1144 , 106 S.Ct. 2255 , 90 L.Ed.2d 700 (1986); see 6 J.
- Colorado Nat'l Bankshares, Inc. v. Comm'r, 92 T.C. 246 (Tax Ct. 1989).publishedRule 145(b) states that the Court may issue a contempt citation or take “other measures” that are appropriate “in the circumstances.” The range of sanctions available to the Court includes: (1) Strike testimony, such as those parts influen…
- United States v. Clinton Bramlet, 820 F.2d 851 (7th Cir. 1987).publishedGeders v. United States, 425 U.S. 80, 87 , 96 S.Ct. 1330, 1334 , 47 L.Ed.2d 592 (1976); United States v. Ell, 718 F.2d 291, 293 (9th Cir.1983).
- United States v. Shaver, 607 F. Supp. 2d 1168 (S.D. Cal. 2009).publishedSee United States v. Ell, 718 F.2d 291, 293 (9th Cir.1983).
- United States v. Shaver, 566 F. Supp. 2d 1192 (S.D. Cal. 2008).publishedSee United States v. Ell, 718 F.2d 291, 293 (9th Cir.1983).
- Milicevic v. Fletcher Jones, No. 03-15954 (9th Cir. Mar. 28, 2005).published(holding that although “prejudice is presumed” “when a court fails to comply with Rule 615,” harmless error analysis is nonetheless appropriate)
- Marina Milicevic v. Fletcher Jones Imports, 402 F.3d 912 (9th Cir. 2005).published(holding that although “prejudice is presumed” “when a court fails to comply with Rule 615,” harmless error analysis is nonetheless appropriate)
- United States v. Jeffrey H. Collins, 340 F.3d 672 (8th Cir. 2003).published See United States v. Ell, 718 F.2d 291, 293 (9th Cir.1983).
- United States v. Ervin Kindle, 925 F.2d 272 (8th Cir. 1991).publishedSee United States v. Ell, 718 F.2d 291, 293 (9th Cir.1983).
- United States v. Percy Love, III, No. 16-10066 (9th Cir. Nov. 21, 2018).unpublished(explaining Rule 615 sequestration orders still apply after a witness finishes testifying)
- United States v. Carl Emmitt Prichard, 781 F.2d 179 (10th Cir. 1986).published(presumption of prejudice, rebuttable by preponderance of evidence that error was harmless)
- State v. Perkins, 686 P.2d 1248 (Ariz. 1984).published(cases where the court improperly refuses to order the exclusion of witnesses at a defendant’s request are “not controlled by those Ninth Circuit cases that consider the appropriate remedy when a witness violates an excl…)
At page 292 Witness sequestration as a matter of right under rule 6159 citing casesdiscussing fact witnesses
- Breeden v. Vyas, No. 3:20-cv-30157 (D. Mass. Sept. 27, 2024).(discussing fact witnesses)
- United States v. Dolores Fernando Cocoa-Tapia, United States of Am. v. Jacinto Orozco-Morales, 29 F.3d 635 (9th Cir. 1994).unpublishedId. at 405 (citing United States v. Ell, 718 F.2d 291, 292 (9th Cir.1983)).
- Baine v. State, 606 So. 2d 1076 (Miss. 1992).published(a party holds a nondiscretionary right of witness exclusion)
- United States v. Jeffrey James Brewer, 947 F.2d 404 (9th Cir. 1991).published “The rule makes the exclusion of witnesses a matter of right and the decision is no longer committed to the court’s discretion as it once was.” United States v. Ell, 718 F.2d 291, 292 (9th Cir.1983).
- State v. Elmaleh, 782 P.2d 886 (Haw. App. 1989).publishedA. Under HRE Rule 615, a witness sequestration order will issue upon a request of a party, which is “a matter of right.” United States v. Ell, 718 F.2d 291, 292 (9th Cir. 1983); see also Commentary to HRE Rule 615.
- Douglas v. State, 525 So. 2d 1312 (Miss. 1988).publishedU.S. v. Perry, 815 F.2d at 1105-06 (7th Cir.1987); U.S. v. Ell, 718 F.2d 291, 292 (9th Cir.1983); U.S. v. Ortega-Chavez, 682 F.2d 1086, 1089 (5th Cir.1982); U.S. v. Avila-Macias, 577 F.2d 1384 , 1389 (9th Cir.1978).
- Sanford v. CBS, INC., 594 F. Supp. 713 (N.D. Ill. 1984).publishedE.g., United States v. Ell, 718 F.2d 291, 292 (9th Cir.1983); see also Advisory Committee Notes to Rule.
- United States v. Julio Ernesto Arias-Santana, 964 F.2d 1262 (1st Cir. 1992).published(under Rule 615, witness sequestration order is a matter of right)
- State v. Hill, 1999 ND 26, 590 N.W.2d 187.publishedSee, e.g., United States v. Ell, 718 F.2d 291, 292 (9th Cir.1983).
At page 294 “when a court fails to comply with rule 615, prejudice is presumed and reversal is required unless it is manifestly clear from the record that the error was harmless or unless the prosecution proves harmless error by a preponderance of the evidence.”1 citing case
- United States v. Thaddeus Lawrence Lach, 50 F.3d 17 (9th Cir. 1995).unpublished(applying harmless error analysis to Rule 615 violations)
Other citing cases
- United States v. Gittens, 39 M.J. 328 (1994).published
- People v. Fecht, 701 P.2d 161 (Colo. Ct. App. 1985).published
v.
Henrietta Faye ELL, Defendant/Appellant
Henrietta Faye Ell appeals her conviction for uttering an altered government check. Ell contends that the district court committed reversible error during trial when it allowed the rebuttal testimony of government witnesses who were permitted to remain in the courtroom during the testimony of other witnesses. The defendant had requested that they be excluded pursuant to Rule 615 of the Federal Rules of Evidence. We agree that it was error for the district court not to exclude the witnesses from the courtroom upon defendant’s request. We remand for a finding of whether allowing the testimony was harmless error.
FACTS
On April 16,1982, defendant Ell cashed a United States Treasury check in the altered amount of $867.63. Government records indicated that the check had been made out for the sum of $67.63. Ell testified that when she received the check in the mail, the amount was already $867.63, and that she was not aware that the check had been altered at the time she cashed it. After a two-day jury trial, Ell was convicted of the felony of uttering an altered check. 18 U.S.C. § 495.
At trial, three of the prosecution’s witnesses were Roberta DesRosier; Diana Wippert, Ell’s sister-in-law; and Merlin Wippert, Ell’s brother. During Ms. Wippert’s testimony, Ell noticed that DesRosier, who had already testified in the prosecution’s case-in-chief, was still present in the courtroom. The prosecution indicated that DesRosier might later be called as a rebuttal witness. Ell moved to have DesRosier excluded from the courtroom during the testimony of the other witnesses. The court denied the motion on the ground that DesRosier had already testified in the casein-chief. Similarly, Ell’s requests to have Diana Wippert and Merlin Wippert excluded from the courtroom after their testimony in the prosecution’s case-in-chief were also denied. Ell renewed her objections when Ms. Wippert and DesRosier were allowed to give rebuttal testimony. Ell additionally moved for a mistrial and later for a new trial on the sequestration issue. These motions were also denied.
I. Application of Rule 615
Rule 615 of the Federal Rules of Evidence provides in pertinent part: “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 on its own motion .... ” (Emphasis added). The rule makes the exclusion of witnesses a matter of right and the decision is no longer committed to the court’s discretion as it once was. Fed.R. Evid. 615 advisory committee note; United States v. Warren, 578 F.2d 1058, 1076 (5th Cir.1978) (en banc), modified on other grounds, 612 F.2d 887 (5th Cir.1980) (en banc), cert. denied, 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980). This circuit and others have applied the rule to rebuttal witnesses, although it is not clear from the cases whether the rebuttal witnesses also testified in the prosecution’s case-in-chief. See United States v. Ortega-Chavez, 682 F.2d 1086, 1089-90 (5th Cir.1982); United [*293] States v. Avila-Macias, 577 F.2d 1384, 1389 (9th Cir.1978).
The Government urges that Rule 615 is not applicable to rebuttal witnesses when those witnesses have already given testimony in the case-in-chief. It asserts that exclusion is not required because the jury will have the opportunity to weigh the credibility of the rebuttal testimony in light of the testimony previously given by the witness in the case-in-chief. We reject this contention. The purpose of the rule is to prevent witnesses from “tailoring” their testimony to that of earlier witnesses and to aid in detecting testimony that is less than candid. Geders v. United States, 425 U.S. 80, 87, 96 S.Ct. 1330, 1334, 47 L.Ed.2d 592 (1976). These concerns are just as valid for a rebuttal witness who has already testified in the case-in-chief as they are for a primary witness. A witness may wish to tailor rebuttal testimony to conform to that of other witnesses as well as to cover up inconsistencies in earlier testimony that have been revealed by the other witnesses. See 6 J. Wigmore, Evidence § 1840 (Chadbourn rev. 1976) (“[The time for sequestration] continues for each witness after he has left the stand, because it is frequently necessary to recall a witness in consequence of a later witness’ testimony.”). Thus, we hold that it was error for the district court to refuse to exclude the government witnesses from the courtroom upon Ell’s request.
II. Harmless Error
The Government next contends that even if it was error for the district court not to exclude the government witnesses, the error is not reversible since Ell has failed to demonstrate any significant prejudice.
This court has yet to adopt a standard of review for a trial court’s noncompliance with Rule 615. This case is not controlled by those Ninth Circuit cases that consider the appropriate remedy when a witness violates an exclusionary order issued pursuant to Rule 615. Those cases commit to the discretion of the trial court the appropriate sanction for a witness’ violation of an exclusionary order. United States v. Robbins, 579 F.2d 1151, 1154 (9th Cir.1978); United States v. Avila-Macias, 577 F.2d at 1389; United States v. Oropeza, 564 F.2d 316, 326 (9th Cir.1977), cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 788 (1978). In the above cases, the district court fully complied with Rule 615; the witnesses individually violated the court order issued pursuant to the rule. In the case at bar, however, the court failed to comply with Rule 615 when it refused to issue the exclusionary order.
A number of circuits have held that the district court’s erroneous denial of an exclusion request does not mandate reversal absent a showing of prejudice. See, e.g., Wood v. Southwestern Bell Telephone Co., 637 F.2d 1188, 1194 (8th Cir.), cert. denied, 454 U.S. 837, 102 S.Ct. 142, 70 L.Ed.2d 118 (1981); Virgin Islands v. Edinborough, 625 F.2d 472, 474 (3d Cir.1980); United States v. Warren, 578 F.2d at 1076. Other courts have suggested, without reaching the question, that noncompliance with the rule may mandate automatic reversal. United States v. Burgess, 691 F.2d 1146, 1157 (4th Cir.1982); State v. Dimodica, 40 N.J. 404, 192 A.2d 825, 830 (1963). Finally, several states have adopted an approach which presumes that a violation of the rule prejudiced the defendant and thus requires reversal unless the contrary is manifestly clear from the record or unless the prosecution proves that there was no prejudice. See State v. Roberts, 126 Ariz. 92, 94, 612 P.2d 1055, 1057 (1980) (in banc); Reynolds v. State, 254 Ark. 1007, 1009, 497 S.W.2d 275, 277 (1973); Montos v. State, 212 Ga. 764, 766, 95 S.E.2d 792, 794 (1956); Givens v. State, 657 P.2d 97, 100 (Nev.1983).
We choose to adopt the last approach. Witness sequestration cases present the sort of situation in which it is grossly unfair to place the burden on the defendant to establish prejudice. It may be impossible to tell how a witness’ testimony would have differed had the defendant’s motion to exclude been granted. Therefore, we hold that when a court fails to comply with Rule 615, prejudice is presumed and reversal is re[*294] quired unless it is manifestly clear from the record that the error was harmless or unless the prosecution proves harmless error by a preponderance of the evidence. See United States v. Castillo, 615 F.2d 878, 883 (9th Cir.1980) (violation of evidentiary rule judged by “more probably than not harmless” standard).
On the basis of the record before us, we cannot conclude as a matter of law that allowing the rebuttal testimony of DesRosier and Ms. Wippert after they had been permitted to listen to the testimony of the other witnesses was harmless error. The credibility of both witnesses was at issue. Their rebuttal testimony may have served to rehabilitate them in the eyes of the jury. Therefore, we remand to the district court for a finding of whether the error was harmless. The prosecution will have the burden of proving harmless error by a preponderance of the evidence. Upon the district court’s determination, the case will be returned to this panel.
REMANDED.