a series of questions regarding whether or not he knew
persons reputed to be involved in organized crime. Id.
VI. SEQUESTRATION; N.J.R.E. 615
In State v. Tillman, 122 N.J. Super. 137 (App. Div.
1973), certif. denied, 62 N.J. 428 (1973), the Appellate
Division reversed a judgment of conviction because of the
prosecutor’s violation of a sequestration order. In essence,
the prosecutor discussed the facts of the case with a
witness, who had previously testified, in the presence of
another witness who was to testify the next day. The
prosecutor’s explanation for his action was that he
thought he had the right to do so and that he was not
limited in talking with his witnesses. The Court held
that what occurred went far beyond a simple interview of
witnesses. Even if the witnesses did not speak directly to
one another but merely listened to the prosecutor, the
necessary effect was to violate both the letter and the spirit
of the sequestration order.
The prosecutor’s desire to interview his witnesses did
not excuse the violation of the order. That could readily
be accomplished by interviewing the witnesses out of the
presence of each other. Violation of the sequestration
order may result in (1) a mistrial; (2) refusal to permit the
witness to testify; or (3) calling the disobedience of the
order to the attention of the jury as bearing on the
credibility of the witness involved. Id. Ordinarily, a trial
court should grant a motion to sequester witnesses.
In State v. Horton, 199 N.J. Super. 368 (App. Div.
1985), defendant’s mother, the most important (in
terms of knowledge of defendant’s whereabouts) of six
alibi witnesses in a robbery identification case,
unintentionally violated a sequestration order and sat in
court during the testimony of the first alibi witness. The
trial court precluded her from testifying. The Appellate
Division reversed defendant’s conviction, ruling that
there is no automatic exclusion rule based on a witness’
inadvertent violation of a sequestration order. State v.
Horton, supra. Rather, said the court, less drastic
remedies should be considered, such as calling the
disobedience of the order to the jury’s attention as
bearing on the issue of credibility. See also, State v. Ross,
189 N.J. Super. 67, 71 (App. Div. 1983) (witness
sequestration order itself does not violate any right of a
defendant). Exclusion of the testimony of a criminal
defense witness should be a last resort. State v. Dayton,
292 N.J. Super. 76, 91 (App. Div. 1996).
Sanctions, including an adverse instruction to the
jury, should not be imposed for mere technical violations
of a sequestration order. In State v. Singleton, 158 N.J.
Super. 517 (App. Div. 1978), certif. denied, 79 N.J. 470
(1978), a sequestration order was entered. However, a
witness and his wife met a detective in the courthouse.
The detective was not aware that the witness testified at
a prior suppression hearing or that a sequestration order
was entered by the trial court. The witness and his spouse
began to discuss with the detective the bail situation of
the witness’s son who was incarcerated on unrelated
charges. This conversation was continued in the presence
of an investigator. During the conversation, the witness
revealed that he recanted his prior statement, inculpating
the defendant, because one of the witness’s friends was
also a friend to the defendant’s father. The assistant
prosecutor trying the case then came on the scene and the
witness repeated the statements he made to the detective
and investigator. There was no discussion of the witness’s
prior or prospective testimony. The trial court denied the
defendant’s motion to exclude the testimony of the
detective and the witness and also declined to inform the
jury of the violation of the sequestration order. The court
did order that neither witness could testify regarding
threats made to the witness. Id. The Appellate Division
held that this was an appropriate remedy because the
violation “was merely technical” and there was no
showing of prejudice to the defense.The necessity of a trial court’s granting a belated
defense motion for sequestration was considered in State
v. Modica, 73 N.J. Super. 1 (App. Div. 1962), aff’d 40
N.J. 404 (1963). In that case, after the State examined
one of three identification witnesses the defendant moved
to exclude the other two witnesses from the courtroom.
The trial court denied the motion. The Appellate
Division, in holding that this ruling did not constitute
prejudicial error, stated that ordinarily in a criminal case,
a motion to seclude the State’s witnesses from the
courtroom prior to their actually testifying should be
granted. See State v. Williams, 29 N.J. 27, 46 (1960).
However, the court in Modica further ruled that the
granting or denial of such a motion is for the sound
discretion of the trial judge under the circumstances of
the particular case. In the case before the court, the
defendant’s motion was not made until after the direct
examination of the State’s first witness had been
completed and was limited to excluding the other two
identification witnesses during the cross-examination.In State v. Talbot, 135 N.J. Super. 500, 512 (App.
Div. 1975), aff’d 71 N.J. 160 (1976), it was ruled that
the trial court did not abuse its discretion in excepting
from a sequestration order a police officer needed to assist
the prosecutor.