Florida/Georgia Personal Injury & Workers Compensation

...Chamberlain argues that this ruling was reversible error. We disagree. *1100 The rule of sequestration provides: At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses.... § 90.616(1), Fla....

...The purpose of the rule of sequestration is "to avoid a witness coloring his or her testimony by hearing the testimony of another," thereby discouraging "fabrication, inaccuracy and collusion." Charles W. Ehrhardt, Florida Evidence § 616.1, at 506 (1998 ed.). Section 90.616(2)(c), Florida Statutes (1997), allows an exception to the rule of sequestration for "[a] person whose presence is shown by the party's attorney to be essential to the presentation of the party's cause." This exception is applied most...

...As admitted by Rose, this testimony was permissible as provided for by the statute and precedents of this Court. See Mansfield, 758 So.2d at 649; Bonifay, 680 So.2d at 419-20. We conclude no reversible error has been demonstrated. Addressing the second part of this claim, Rose recognizes that section 90.616, Florida Statutes (1997), provides: (2) A witness may not be excluded if the witness is: ....

...igation," the trial court did not abuse its discretion in exempting the expert witnesses from the rule. Id. [11] In 1990 (before we decided Burns but apparently after the case was tried), the Florida Legislature codified the rule of sequestration in section 90.616, Florida Statutes. See ch. 90-174, § 2, at 743, Laws of Fla. Section 90.616, Florida Statutes (2006), states in pertinent part: (1) At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection (2). § 90.616(1), Fla. Stat. (2006). While our decisions under the common law emphasized the discretionary nature of the decision to sequester witnesses, section 90.616 adopts the view that sequestration is demandable *663 as a matter of right. Charles W. Ehrhardt, Florida Evidence § 616.1, at 655 (2008 ed.). Nevertheless, the codified rule of sequestration also includes categories of witnesses who may not be excluded. See § 90.616(2), Fla. Stat. (2006). As one of those categories, section 90.616(2)(c) provides that a court may not exclude "[a] person whose presence is shown by the party's attorney to be essential to the presentation of the party's cause." § 90.616(2)(c), Fla. Stat. (2006). We have recognized that in applying the exception in section 90.616(2)(c) for those persons whose presence is shown to be essential to the presentation of the cause of one of the parties, "the trial court `has wide discretion in determining which witnesses are essential.'" Knight, 746 So.2d at 430 (quoting Charles W. Ehrhardt, Florida Evidence § 616.1, at 509 (1998 ed.)); see also Strausser v. State, 682 So.2d 539, 541 (Fla.1996) (citing § 90.616(2)(c) and finding no abuse of discretion in allowing the mental health expert to remain present in the courtroom while the defendant testified). Under section 90.616(2)(c), the burden is on the party seeking to avoid sequestration of a witness to demonstrate why the presence of the witness is essential....

...We reasoned that because a main issue in Strausser was the sanity of the defendant at the time of the crime, the trial court may have reasonably concluded that the expert's presence during the defendant's testimony was "essential to the presentation of the ... cause." Id. at 541 (quoting § 90.616(2)(c), Fla....

...s expert witness Dr. McClaren to remain in the courtroom during all of the testimony of the defense's penalty phase witnesses. I would specifically conclude that in this case the trial court's ruling was error. As the majority correctly recognizes, "section 90.616 adopts the view that sequestration is demandable as a matter of right." Majority op. at 662-63. Although sequestration is demandable as a matter of right, section 90.616(2)(c) provides that a court may not exclude a witness who is shown to be "essential." Further, the majority also correctly recognizes that "the burden is on the party seeking to avoid sequestration of a witness to demonstrate why the presence of the witness is essential." Majority op....

...der their presence essential. If such a reason were adequate to excuse a witness from the rule of sequestration, then all experts would be exempt from the rule. There is no authority for such a blanket exception to the rule of sequestration. Rather, section 90.616(2)(c) requires the party seeking an exception from the rule for its witness to "show" that the witness's presence is "essential to the presentation of the party's cause." As to the trial court's exercise of its discretion, the trial court failed to make any findings on whether Dr....

...avenue available" to the State to rebut the defense's evidence of mental mitigation through expert testimony. See Burns, 609 So.2d at 606. Moreover, the State did not and could not explain why Dr. McClaren's presence was essential as required under section 90.616(2)(c)....

...To avoid any error in the future, the trial court should follow several steps in considering whether to exempt an expert witness from the rule of sequestration to ensure that discretion is being exercised in a manner consistent with both the rule and section 90.616(2)(c)....

...Finally, once the trial court makes such a finding, it should then determine the portion of the testimony during which the presence of the witness is essential. Adherence to these guidelines, and a rejection of a blanket exception to the rule of sequestration, best serves to uphold the trial court's discretion, the rule, and section 90.616(2)(c)....

...without merit. Davis next argues that appellate counsel was ineffective for not raising on direct appeal that the trial court allowed, over objection, the mother of the victim to remain in the courtroom after testifying. This claim is without merit. Section 90.616, Florida Statutes (1995), provides an exception to the rule of sequestration for a minor child victim's parent, and Davis has been unable to establish how the trial judge abused his discretion in allowing the victim's mother to remain in the courtroom....

...at 606 (citation omitted) A main issue in the present case was Strausser's sanity at the time of the crime and the trial court may reasonably have concluded that Walczak's presence during Strausser's testimony was "essential to the presentation of the ... cause." § 90.616(2)(c), Fla.Stat....

...The purpose of the rule of sequestration is "to avoid a witness coloring his or her testimony by hearing the testimony of another," thereby discouraging "fabrication, inaccuracy and collusion." Charles W. Ehrhardt, Florida Evidence § 616.1, at 506 (1998 ed.). Section 90.616(2)(c), Florida Statutes (1997), allows an exception to the rule of sequestration for "[a] person whose presence is shown by the party's attorney to be essential to the presentation of the party's cause." This exception is applied most...

...surveillance, while the helicopter pilot only became involved at the end. Moreover, Smith's recitation of Detective Ojeda's trial testimony recounted the same subject matter in great detail. [9] Although Knight is correct that the 1990 enactment of section 90.616, a statutory rule of sequestration, superseded the common law standard of "sound judicial discretion" in determining whether a witness should be excepted from the rule, Randolph, 463 So.2d at 191, the trial court still has the discreti...

...the subpoena issued. (g) Subpoena of Minor. Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor's testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor....

invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing tiiatthe

to whom the sequestration rule did not apply. § 90.616(2)(a), Fla. Stat. (2009). Furthermore, Tandem

...s rebuttal witness after appellees concluded their case. First Union cited section 90.704 of the Florida Evidence Code, which permits an expert witness to base an opinion on facts or data made known to him or her at the trial. First Union also cited section 90.616(2)(c) of the Florida Evidence Code that a person whose presence is shown by the party's attorney to be essential to the presentation of the party's cause, should not be excluded from the courtroom by the witness-sequestration rule....

...proceedings and not to matters which should have been litigated and determined in the foreclosure action. [9] $5,000,000.00 less $124,953.00 equals $4,875.047.00, which is $111,440.00 less than the total mortgage indebtedness of $4,986,487.00. [10] § 90.616, Fla....

...A party may also arrange for a stenographic transcription at that party's own initial expense. (8) Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor's testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor....

...SUBPOENA (a)-(g) [No change] (h) Subpoena of Minor. Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor's testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor....

............................... Address Florida Bar No. ............ Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor's testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor....

................................. Address Florida Bar No. .............. Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor's testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor....

.................................. Address Florida Bar No. ............... Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor's testimony, or *958 that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor....

................................. Address Florida Bar No. ............... Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor's testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor....

................................. Address Florida Bar No. .............. Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor's testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor....

............................... Address Florida Bar No. ............. Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor's testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor....

.................................... Address Florida Bar No. ................. Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor's testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor....

.............................. Address Florida Bar No. ............ Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during *961 the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor's testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor....

Spencer v. State, 133 So.2d 729 (Fla.1961)). Section 90.616(2)(c), Florida Statutes (1997), allows an exception

presentation of the state’s case. We agree. Section 90.616, Florida Statutes (2009), provides: (1) At

...our. In addition, two alternate jurors were chosen. B. The Guilt Phase The trial commenced on January 9, 2012. Larkin invoked the rule to exclude witnesses from the courtroom, and the jury was sworn in. See § 90.616, Fla....

Sequestration The trial judge applied section 90.616, Florida Statutes (“Rule of Sequestration”)

codified at section 90.616, Florida Statutes (2018), and titled “Exclusion of Witnesses.” Section 90.616(1) provides:

invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that

invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that

the accused. See Art. I, § 16(b), Fla. Const.; § 90.616(2)(d), Fla. Stat. (1999). While next-of-kin have

an officer nor an employee of appellee, and section 90.616(2)(b), Florida Statutes (1991), clearly provides

determined that her presence was prejudicial. § 90.616(2)(d), Fla. Stat.

defense witness. Commonly called “the rule,” section 90.616, Florida Statutes (2004), provides: (1) At

invocation of the rule of sequestration of section 90.616, Florida Statutes, except on a showing that

pretrial motion, we find any error to be harmless. Section 90.616, Florida Statutes (2009), provides: (1) At

...When the guardian ad litem gave her report, cross-examination by the parties should have been allowed. At the start of the hearing, the daughter invoked the rule of exclusion of witnesses. The trial court denied that request. The request should have been granted. The Evidence Code provides: 90.616 Exclusion of witnesses....

...(d) In a criminal case, the victim of the crime, the victim's next of kin, the parent or guardian of a minor child victim, or a lawful representative of such person, unless, upon motion, the court determines such person's presence to be prejudicial. § 90.616, Fla. Stat. (2008) (emphasis added). The parties, of course, were not subject to exclusion. Id. § 90.616(2)(a)....

invoked the sequestration rule set forth in section 90.616 of the Florida Statutes. The trial court told

of sequestration of witnesses, pursuant to section 90.616, Florida Statutes (2015), but the Commission

from hearing the testimony of other witnesses. § 90.616(1), Fla. Stat. (2014). Witness sequestration is

Fla. Const. This right has been codified in section 90.616(2)(d), Florida Statutes (2017), which provides

invocation of the rule of sequestration of section 90.616, Florida Statutes, except upon a showing that

federal rule by enacting section 90.616, Florida Statutes (Supp.1990). Section 90.616 provides that upon the