TBA Law Blog


Posted by: Wade Davies on Jul 1, 2018

Journal Issue Date: Jul 2018

Journal Name: July 2018 - Vol. 54, No. 7

Is it still the law that if the prosecuting witness is not sequestered he or she has to testify first?

I usually try to write this column about something to which I think I know the answer. I’m not sure about this one.

The answer was clear back in 1903. In Smartt v. State, the Tennessee Supreme Court held that if the prosecuting witness was to be allowed to remain in the courtroom despite “the rule” of sequestration having been invoked, the State had to call the prosecuting witness first.[1] The purpose of this requirement was to prevent the witness from being able to listen to other prosecution witnesses and then conform his or her testimony with that of other witnesses.[2]

Back then, the rule also applied to the defendant. If the defendant was going to testify, the defendant had to be the first defense witness. The particular Tennessee statute that required the defendant to testify before any other defense witness was struck down by the United States Supreme Court in Brooks v. Tennessee.[3] But the importance of preventing other witnesses from listening to the trial and then tailoring their testimony has been confirmed repeatedly as necessary to ensure a fair trial.[4]

In a 1978 opinion in Mothershed v. State the Tennessee Court of Criminal Appeals confirmed that the state’s representative or prosecuting witness, if not sequestered, should have to testify first.[5] The prosecutor first rule has often been called the Smartt/Mothershed rule.

These cases were decided before the adoption of the Tennessee Rules of Evidence. Tennessee Rule of Evidence 615, which governs sequestration of witnesses, does not mention the order of witnesses. Both the original version and 1997 amended version of Rule 615 contain exceptions from sequestration for a party’s designated representative or a person essential to the presentation of the party’s cause. The Advisory Commission Comments to the 1997 amendment to Rule 615 make clear that in a criminal case the prosecuting attorney could designate a crime victim, a relative of a crime victim, or an investigating officer. A crime victim also has the constitutional right to be present at all proceedings where the defendant has the right to be present.[6]

The question, then, is whether the Smartt/Mothershed rule regarding order of witnesses survives the adoption of Rule 615. As it turns out, some cases say yes; others say no. I was thinking about this issue as a topic for this column when I told one of my partners that he had been incorrect recently to cite this rule because I thought the Court of Criminal Appeals had recently rejected the rule and overruled all of the post-rule cases citing Mothershed. I confidently cited him to the 2016 Court of Criminal Appeals opinion in State v. Beaty.[7] He just as confidently cited me to a recent Court of Criminal Appeals case citing MothershedState v. Naïve and correctly pointed out that the opinion shows no negative treatment by later cases.[8] In fact, there have been a number of cases holding that the Mothershed rule survived the adoption of the rules. In Beaty, the court detailed the history of those opinions. The court went on, though, to cite a 2010 Tennessee Supreme Court opinion under Rule 615 that says a party to the litigation will not be excluded and prevented from hearing testimony even if he or she intends to testify. Although the Tennessee Supreme Court did not directly address the Mothershed rule, the panel opinion in Beaty concludes that Mothershed is no longer good law because Rule 615 supplanted it. At least one opinion since has cited Beaty for the proposition that the Mothershed rule has been supplanted.[9]

On the other hand, there is a Tennessee Supreme Court opinion that has never been overruled by the court, which says if the prosecuting witness is to remain in the courtroom the State must examine that witness first.[10]

Under the circumstances, I think defense counsel could still move to require the State’s representative to testify first or be excluded. There is a well-reasoned but unpublished Court of Criminal Appeals opinion to the contrary versus a very old but also well-reasoned Tennessee Supreme Court case. And Rule 615 is silent about order. At the very least, even if Mothershed is no longer a rule, a trial court has discretion of the mode and order of interrogation and presentation and could require a witness to testify first if counsel made an appropriate showing of necessity such as the fact that the witness has discussed what to say with witnesses in that past.[11]

One last thought — sequestration from the courtroom may be less important now than trying to keep witnesses from hearing about what happens in the courtroom from one of the many ways to communicate on electronic devices.

Notes

  1. Smartt v. State, 112 Tenn. 539, 80 S.W. 586 (1903).
  2. State v. Reagan, No. M2002-01472-CCA-R3-CD at 17-18 (Tenn. Crim. App. May 19, 2004).
  3. Brooks v. Tennessee, 406 U.S. 605 (1972).
  4. See State v. Harris, 839 S.W.2d 54, 68 (Tenn. 1992).
  5. Mothershed v. State, 578 S.W.2d 96 (Tenn. Crim. App. 1978). In the opinion by Judge Daughtrey, the Court of Criminal Appeals found the error harmless, as had the Supreme Court in Smartt.
  6. Tenn. Const. Art. I, § 35.
  7. State v. Beaty, No. M2014-00130-CCA-R3-CD, 2016 Tenn. Crim. App. LEXIS 842, at *42-57 (Tenn. Crim. App. Nov. 8, 2016).
  8. State v. Naïve, No. M2012-00893-CCA-R3-CD (August 21, 2013). Again, the court found the error to be harmless.
  9. State v. Petty, No. M2016-01036-CCA-R3-CD, 2017 Tenn. Crim. App. LEXIS 892, at *30 (Crim. App. Oct. 5, 2017).
  10. Smartt v. State, 112 Tenn. 539, 551, 80 S.W. 586, 588 (1903).
  11. Tenn. R. Evid. Rule 611.

Wade Davies WADE DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.