Ohio R. Evid. 615
Ohio. R. Evid. 615
Proposed Staff Note (2019 Amendment)
Evid.R. 615
The amendment to Evid.R. 615 was made to comply with the 2017 amendment to Article I, Section 10a of the Ohio Constitution, also known as Marsy's Law.
Staff Note (July 1, 2003 amendment)
Rule 615 Separation and Exclusion of Witnesses
The amendment changed the title of the rule from Exclusion of Witnesses to better reflect its subject matter, divided the rule into divisions to enhance clarity, and made a grammatical correction in new division (B)(2) (former division (B)). No substantive changes were intended by these modifications. Substantively, the amendment established requirements of specificity and notice for orders that regulate communications and contact by or with witnesses during a hearing.
Ohio courts have long exercised authority to order the "separation" of witnesses in order to limit the possibility that the witnesses' testimony might be influenced by the accounts of other witnesses. As originally adopted, Evid. R. 615 followed the federal model in addressing only one kind of separation order, that is, orders excluding witnesses from the courtroom during the testimony of other witnesses. Additional forms of separation were used in Ohio long before adoption of the rule, including, for example, orders limiting out-of-court contact between witnesses, or between witnesses and third-parties. Ohio courts have continued to employ these devices in the years since adoption of the rule. While the rule makes exclusion from the courtroom mandatory on the motion of a party, it is well established that trial courts continue to possess broad and flexible discretion in deciding what additional forms of separation, if any, are appropriate. The breadth of the discretion is reflected in the variety of different separation orders to be found in reported cases and in trial court practice. The variety of separation orders is accompanied by correspondingly diverse views among lawyers and courts (and sometimes among judges in the same court) regarding what additional forms of separation are generally appropriate or ought routinely to be imposed.
In practice, it is most common for trial courts to enter highly abbreviated orders on the subject. Normally a party will move for the "separation" (or "exclusion") of witnesses, and the court will respond with a general statement that the motion is granted. This is usually followed by an announcement to the gallery that prospective witnesses should leave the courtroom and by a statement that the parties are responsible for policing the presence of their own witnesses. Though some courts then orally announce additional limitations on communications to or by witnesses, the far more usual approach is simply to assume that the generic order of "separation" adequately conveys whatever limitations have been imposed.
The brevity of the rule and of most separation orders has led to "confusion about how far the scope of a bald Rule 615 order extends," United States v. McMahon, 104 F.3d 638, 648 (4th Cir.1997) (dissenting opinion). Some courts, in Ohio and elsewhere, have suggested that at least some additional forms of separation are implicit even in generally stated orders. This approach, however, entails significant issues of fair warning, since the "implicit" terms of an order may not be revealed to the parties or witnesses until after the putative violation has occurred. That is especially so when the "violation" involves conduct or communications about which there is a great diversity of opinion and practice. (Indeed, even among jurisdictions that follow this approach, there is disagreement as to what additional restrictions are necessarily implied in a generic separation order.) The imposition of sanctions without advance warning that the conduct is sanctionable raises obvious due-process concerns. Moreover, an "implicit-terms" approach is inconsistent with the principle that separation of witnesses beyond exclusion from the courtroom is neither automatic nor a matter of right: if witnesses and parties are bound by implicit additional restrictions whenever exclusion is ordered, then the additional restrictions are in fact automatic and non-discretionary.
The amendment rejects an "implicit-terms" approach and adopts instead the narrower rule employed by several Ohio courts and by what appears to be a majority of other jurisdictions that have addressed the question. Under this rule, generally-stated or "bald" separation orders are effective only to order the exclusion of witnesses from the courtroom during the testimony of other witnesses. See, e.g., State v. Rogers (Ohio App., 4th Distr., Nov. 15, 2000), unreported, 2000 WL 1728076, at *6-*7, app. dism. (2001), 91 Ohio St. 3d 1471. See also U.S. v. Rhynes (4th Cir. 2000), 218 F.3d 310, 321 n. 13 (en banc); State v. Brown (Conn. App. 1999), 741 A.2d 321, 325; In re H.S.H. (Ill. App. 2001), 751 N.E.2d 1236, 1241-1242. A separation order does not forbid other conduct by witnesses, such as being present during opening statements or discussing the case with other witnesses outside the courtroom. To the extent that a trial court, in the exercise of its discretion, determines to order forms of separation in addition to exclusion, it remains free to do so, but it can do so only by making the additional restrictions explicit and by giving the parties notice of the specific additional restrictions that have been ordered. Notice to the parties is required because, with the exception of contempt, sanctions for violation of the rule tend to have their greatest effect on the parties, rather on the witnesses.
The amendment does not define the standards for ordering forms of separation in addition to exclusion, or the kinds of additional separation that are permissible. Nor does the amendment address the matter of sanctions when a separation order has been violated. These subjects have long been committed to the sound discretion of trial courts to be exercised flexibly within well-established limits. See, e.g., State v. Smith (1990), 49 Ohio St.3d 137, 142 (excluding testimony as a sanction is proper only if the party calling the witness "consented to, connived in, [or] procured" the violation, or had knowledge of the witness's disobedience and failed to take affirmative steps to prevent it). The amendment does not change the law on these subjects.
Staff Note (July 1, 2001 Amendment)
Evidence Rule 615 Exclusion of Witnesses
Divisions (1) - (3) of the previous rule were redesignated as divisions (A) - (C). Clarifying punctuation was inserted immediately before division (A), and in division (C) a masculine reference was replaced with gender-neutral language. No substantive change was intended by either of these amendments.
The substantive amendment added division (D) to the rule recognizing a new category of witnesses who are not subject to an order excluding them from hearing the testimony of other witnesses. In particular, the amended rule permits the victim of an offense to be present at a criminal proceeding regarding the offense to the extent that the victim's presence is authorized by statute enacted by the General Assembly. The right of a victim to be present is limited to those persons who are "victims" within the meaning of the constitutional provisions regarding victims' rights. See Ohio Const., Art. I, §10 a. The amendment is designed to harmonize the rule with the provisions of R.C. 2930.09, which permits a victim to be present at any stage of a criminal proceeding conducted on the record (other than a grand jury proceeding) when the defendant is present, "unless the court determines that exclusion of the victim is necessary to protect the defendant's right to a fair trial."
Ordinarily, rules governing witness sequestration would be regarded as "procedural" matters within the meaning of the Modern Courts Amendment, Ohio Const., Art. IV, §5(B), so that a rule of practice and procedure (such as Evid. R. 615) would prevail over an inconsistent statute on the same subject (such as R.C. 2930.09). In this instance, however, the statute involves an exercise of the General Assembly's power under the victims' rights provisions of the Ohio Constitution. Ohio Const., Art. I, §10 a. It is at least arguable that legislation enacted under the authority of section 10 a is not displaced or rendered ineffective by reason of its inconsistency with a rule of practice and procedure. The amendment is intended to eliminate the conflict between the statute and the rule by deferring to the statutory right of a victim to be present at criminal proceedings. The deference extends only to the right of a victim to be present, and only in criminal proceedings. Moreover, whatever the statutory definition of "victim," the rule exempts from sequestration only those persons who are permitted by statute to be present and who are "victims" within the meaning of Article I, Section 10 a of the Ohio Constitution. These limitations correspond to the extent of the General Assembly's power under the victims' rights provisions of the constitution.
The principal object of witness sequestration orders is to minimize the risk that a witness's testimony will be materially affected by hearing the testimony of other witnesses. Neither the statute nor the amended rule impairs the ability of trial courts to deal effectively with this risk when it exists. Under the statute (as well as under the constitution), the victim's right to be present is limited by the defendant's right to a fair trial. Thus, exclusion of a victim-witness would be permissible in cases in which the trial court is persuaded that the victim-witness's testimony would be altered by reason of the witness's presence during the testimony of other witnesses.
Proposed Staff Note (2019 Amendment)
Evid.R. 615
The amendment to Evid.R. 615 was made to comply with the 2017 amendment to Article I, Section 10a of the Ohio Constitution, also known as Marsy's Law.