The efficacy of excluding or sequestering witnesses has long been recognized as a means of discouraging and exposing fabrication, inaccuracy and collusion. These are compelling reasons for exclusion in both criminal and civil trials. See 6 Wigmore §§ 1837-1838.
This rule, similar to both Alaska R. Civ. P. 43(g) (3), which it supersedes, and AS 09.20.180, differs in a few respects. First, it not only provides the court with the traditional power to order exclusion at the request of a party, but also provides that the court may order exclusion on its own motion. Secondly, it permits a party to request exclusion of any witness, not just a witness called by an adverse party. A witness called by a party may not be aligned with that party for all purposes, so that the party calling him may still have an interest in preventing him from hearing the testimony of other witnesses.
Federal Rule 615 makes exclusion upon request by a party a matter of right. Following the prevailing view, that expressed in AS 09.20.180, this rule permits the trial judge discretion in granting requests. The practical difference between the rules should be minimal, since there is rarely a good reason to deny a sequestration request; the procedure is simple and the possible benefit to be derived by a party is enormous. Inconsistent testimony as a result of sequestering witnesses gives rise to two possible inferences:
(1) that an honest mistake was made, suggesting inaccuracy to the factfinder, or,(2) that collusion or perjury has taken place. Both of these inferences may greatly influence the trial. Although it is often difficult to assess the likelihood that sequestration will elicit inconsistent testimony that could not be elicited from witnesses who heard each other testify, the possibility exists in virtually every case. The most honest witness may shade testimony, perhaps only subconsciously, to make it fit the pattern established by other witnesses. Only in exceptional circumstances are there sufficient reasons for denying exclusion.Several categories of persons are excepted from exclusion, by this rule.
(1) Exclusion of persons who are parties would raise a serious sixth amendment confrontation problem in criminal trials and present a fundamental fairness question even in civil cases. Under accepted practice they are not subject to exclusion. 6 Wigmore § 1841. (2) As the equivalent of the right of a natural-person (party) to be present, a party which is not a natural person is entitled to have a representative present. Most of the cases have involved allowing a police officer who has been in charge of an investigation to remain in court despite the fact that he will be a witness. See Dickens v. State, 398 P.2d 1008 (Alaska 1965). See also California Evidence Code § 777. (3) The final category contemplates such persons as an agent who handled the transaction being litigated or an expert needed to advise counsel in the management of the litigation. See 6 Wigmore § 1841, n.4. Whether the assistance of such a person is "essential" is something that the trial judge must decide by weighing the benefits of assistance to one party against the possible benefits of another party of excluding the person as a future witness. To assure that the rule works as intended, under normal circumstances the court should instruct the witnesses to refrain from discussing their testimony with other witnesses outside the courtroom.
Alaska Comm. R. Evid. 615