Thursday, March 16, 2006

Is Witness Sequestration Always Sensible?

The hubbub over Carla J. Martin has us wondering: How sensible is it to adopt a blanket policy of witness sequestration? (It's not sensible, of course, for attorneys to memorialize their flagrant violations of sequestration orders in their own e-mails, but that's another kettle of fish.)

In federal cases (both civil and criminal), a trial court may sequester witnesses on the court's own motion, and must do so on any party's request, under Fed. R. Evid. 615. Typically, sequestration orders not only bar witnesses from physical presence in the courtroom while other witnesses are testifying, but also prohibit lawyers and parties from communicating the substance of one witness's testimony to another witness who has yet to take the stand. Rule 615 exempts witnesses in a few specific categories from sequestration (e.g., parties). But the exceptions are narrowly drawn.

Rationales for sequestration include the understandable desire not to equip witnesses with the means to tailor their testimony to match (or contradict) the evidence offered by other witnesses. This rationale is at its strongest, we think, for witnesses testifying to matters of brute fact. It's more tempting, perhaps, to lie about about a fact, if the witness can somehow know before he takes the stand that his false account will stand uncontradicted (as least by witnesses having testified so far). It is also easier to concoct a factual untruth, and to have it roll trippingly from the tongue, if a witness knows the lay of the evidentiary land in advance and therefore possesses both the information and the lead time necessary for the honing of effective dissimulations. On issues of pure fact, in short, it may often be a good idea to maximize the witness's actual and perceived risks of getting caught, if he tells what might be shown up as a bald-faced lie.

(We've been assuming, however, that the prevaricating witness always goes last. Sometimes he goes first -- a circumstance that tends to undermine the rationale for sequestration. Disclosure of misleading testimony from previous witnesses might actually help in preparing honest witnesses to give effective responsive testimony. But let's leave that issue to one side.)

Even in the context of purely factual testimony, of course, it's questionable whether sequestration is an effective method of achieving its goals. In most litigation, the contours of any important factual disputes are likely to be familiar to everybody, well in advance of trial (and thus before any sequestration order takes effect). This is especially so in civil cases, where the factual issues have usually been explored at length in discovery. Even during trial, after a sequestration order has been entered, litigators still have a million ways of signaling information about the record during witness preparation, without literally or explicitly reporting on what previous witnesses have said.

The rationale for sequestration seems considerably weaker, meanwhile, for opinion testimony (whether offered by lay witnesses or experts). Take the witnesses Carla Martin allegedly coached: aviation security witnesses who would have testified not so much about any actual event or occurrence, but rather, in the subjunctive, about what consequences would have flowed for airport security practices, if Zacarias Moussaoui had warned the feds about 9/11. There's little chance that any witness would be caught in an outright lie about that issue, because the testimony would consist of transparently speculative opinion involving counterfactual conditionals, not matters of brute observational fact. There would be a problem, to be sure, if Martin orchestrated the testimony of the aviation security witnesses, but that problem doesn't seem to be a sequestration problem, so much as it's a mouthpiece problem. We don't want lawyers telling witnesses what their factual testimony (or their opinions) should be. But that's a different issue from telling them what the testimony of other witnesses actually is.

As regards most expert opinion, meanwhile, any benefit from sequestration is considerably diluted, at least in federal court, by the requirement, in both civil and criminal proceedings, that any expert testimony be disclosed in advance of trial. Sequestration may still prevent experts from anticipating questions based on evidence elicited from lay witnesses, or from other experts in cross-examination. But that's not necessarily a good thing. The modern federal trend is decidedly toward full and transparent disclosure of expert opinion in advance of trial. That trend has a lot going for it. It helps to define what aspects of complex opinion testimony are in genuine dispute. That, in turn, enables the parties, at least in theory, to develop legible presentations that engage the central issues in a rational and methodologically defensible way. That is, disclosure helps to foster rational debate, as opposed to litigation via ambush and surprise.

Are there strong countervailing considerations militating in favor of sequestration for experts? Maybe we could think of some if we tried. But we're skeptical they'd be convincing.

Update 3/17/06: Judge Brinkema has now approved a request by prosecutors to offer substitute witnesses untainted by contact with Carla Martin, according to a CNN report.

Will they also be untainted by the massive media coverage this controversy has now attracted? Does sequestration amount to much more than a charade at this point? Massaoui's lawyers, as quoted in the CNN story, seem to have a point: "The existence of such a person [unacquainted with the publicity] is difficult, if not impossible, to imagine, and assurances that there is a rock at the FAA under which that person has been found should be greeted with the skepticism it plainly deserves," defense counsel said in their papers.

We do now know that speculative testimony won't be running completely rampant -- at least not in theory. From the CNN story:
In her order, Brinkema limited the scope of what the untainted government aviation witness can tell the jury.

They may be questioned to describe "what United States government 'could' have done to prevent the attacks had the defendant disclosed in August 2001 the facts that he admitted in pleading guilty," Brinkema said.

The witnesses may not testify "as to what the United States government 'would' have done with this information. That type of testimony would be unduly speculative and misleading to the jury," Brinkema said.
We'll watch with interest to see how well that line can really be drawn.


Anonymous writes ...

Re: Carla Martin, in the media and blogger's rush to judgment here, is it possible that one very important fact was overlooked? Is it possible that David Novak, who was the prosecutor responsible for advising the FAA/TSA witnesses of the court's sequestration order, (and by extension, Ms. Martin-who was representing those witnesses) actually LIED to a federal judge?

That instead of having the judge blame him for failing at any time to advise, mention, provide a copy of or otherwise refer to the SO to Ms. Martin or any of his witnesses, up through the first week of trial-and that Ms. Martin was in virtual constant contact with him the whole month of February and through the first week of trial-that he had to "destroy" her in the courtroom, so that when she was finally allowed to speak, no one would believe her, as her credibility would be nil? Is such prosecutorial conduct and conspiracy possible? Did the Department of Justice "shut her up" with a 7 month long criminal investigation just so she would NOT TALK? And was there even more? Did David Novak KNOWINGLY violate the courts SO?

Carla Martin was not in court when the SO, both oral and written was issued. The SO was never put onto the docket sheet. The only way she would have known about it was through David Novak-but he wasn't telling-because he was coaching his government witnesses 4 days before the trial started and then again 2 days before the trial started.

You see, that's why each side in a legal case get the chance to tell their side of the story-believe it or not, prosecutors can actually have an agenda to cover up the real truth of the matter-and the real truth here was that David Novak lied and engaged in pervasive misrepresentation(with the able assistance of Spencer and Raskin) and coverup in order to protect himself, as he wants to be the next federal judge in the Eastern District of Virgina.

Sec. Chertoff of the DHS "hand picked" Novak for the job-and of course, his boss Paul McNulty, is now the Deputy AG of DOJ.

Since prosecutorial misconduct charges are going to be filed against him and the other 2 prosecutors next week with the Department of Justice, it would seem that Novak's career trajectory just may be disrupted.

Good riddance

6:25 AM  

Post a Comment

<< Home

Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.