Posted: July 11, 2024
Rules of Evidence – Comment Period Closed August 25, 2024
URE.0615 Excluding Witnesses. Amend. Changes are proposed to conform closely (but not completely) to recent amendments made to FRE 615. The proposed amendments clarify that witnesses may be excluded “from the courtroom or from a place where they can see or hear the proceedings;” specify that only “one” “officer or employee of a party that is not a natural person” be exempt from exclusion “if that officer or employee has been designated as the party’s representative by its attorney;” and add a new subparagraph (b) to clarify that the court may make other orders to “prohibit disclosure of trial testimony to excluded witnesses,” and to “prohibit excluded witnesses from accessing trial testimony.”
Subsection (a) adds language that is missing from the FRE 615. Expanding the scope of the rule to include “a place where they can see or hear the proceedings” makes sense given that it is not uncommon to see evidentiary hearings conducted in Utah courts via a video conference systems.
Subsection (b) contains substantive additions to the rule, but is also in line with the existing practice of many Utah trial judges who enter orders that excluded witnesses “are not to discuss their testimony” with other witnesses, or other orders with similar intent.
However, subsection (b) needs to be understood and interpretted to be consistent with constitutional principles of due process and the right to the effective assistance of counsel in criminal cases.
New information or unexpected testimony that is presented at trial may require the attorney to discuss such testimony with potential rebuttal witnesses or expert witnesses. It is important to note that subsection (a) is mandatory (“the court must order witnesses excluded…”), whereas subsection (b) is discretionary (“[t]he court may also, by order…”).