Craig's Court: A Weird Event In A Strange Case

Posted May 10, 2004

Here is one more reason not to exclude the press and public from courtrooms. It is way too rough on legal analysts. Today, out of nowhere, the alleged victim showed up in the courthouse and was escorted into the courtroom. We all thought she was there to testify -- perhaps a rebuttal witness for the prosecution on the still unconcluded Rape Shield issue -- maybe as a witness on the critical pre-trial motions regarding the admissibility of her purported suicide attempts or her alleged drug and alcohol abuse.

However, as we speculated on the above possibilities and its implications, word came from State Court Administrator Karen Salaz who approached us in the courtroom hallway to which the media is relegated. Ms. Salaz heard from DA spokeswoman Krista Flanagan that the complaining witness was only there to observe. Say what? We thought there were expert witnesses -- mental health professionals on the stand -- opining about what the alleged victim did and what it all means. How in the world could she sit in court and witness that? Karen had no answers.

Colorado, like every other jurisdiction I know, has a rule of law which excludes witnesses from hearing what other witnesses have to say under oath. It is called Colorado Rule of Evidence 615 and it provides as follows:

    EXCLUSION OF WITNESSES

    At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.

Considerable case law sets forth the common sense reason for the rule. The purposes of a sequestration order are to prevent a witness from conforming his or her testimony to that of other witnesses and to discourage fabrication and collusion. People v. Melendez, App.2003, 80 P.3d 883, rehearing denied, certiorari granted 2003 WL 22838573.

The purpose of the rule which allows any party to move for sequestration of witnesses, is to prevent testimony of one witness from being influenced by that of another, and is accomplished under rule's terms by ordering witnesses to withdraw from courtroom until called; however, to make rule effective, court may also direct witnesses not to discuss case with each other. People v. Brinson, App.1987, 739 P.2d 897. Policy reasons for sequestration rule are to prevent witness from conforming his testimony to that of another and to discourage fabrication and collusion. Martin v. Porak, App.1981, 638 P.2d 853.

It is not 100 percent clear that the Rule 615 is mandatory when a pre-trial motion, not subject to the formal rules of evidence, are being argued. But the vast majority of judges enforce this rule if requested at any pre-trial hearing. Wouldn’t it have been shocking to have a bunch of witnesses sitting in the front row as Detective Winters laid out the prosecution case at the preliminary hearing?

Speaking of Detective Winters, he has been an advisory witness for the prosecution on parts of this case. Cops and DA Investigators routinely perform this function. An advisory witness satisfies CRE 615(3) as cited above. There is a remote possibility that the prosecution argued and the court accepted the accuser's designation as an advisory witness on these limited issues so personal to her. After all, who would be in a better position to assist the prosecution than her with these intimate details of her life?

One other possibility is that no one objected to her presence. As you can read above, Rule 615 is not self-executing. Some party or the judge has to make the request. Maybe this was defense strategy. Sometimes, as a trial attorney, I want certain witnesses to hear what certain other witnesses or I have to say.

Listening to a witness is one thing. Listening to argument is another. While witnesses are generally excluded from hearing other witnesses at trial, they are generally allowed to come into court to witness closing argument. Perhaps that is what happened here. We learned late in the day that the court found time to hear and apparently argue the critical pre-trial motions regarding the admissibility of her purported suicide attempts and her alleged drug and alcohol abuse. My best guess is that she was allowed to come in and listen to the argument about these matters so personal to her.

That guess is based in part on the length of time she was in there (two hours) although that still seems pretty long for arguments on even these several contentious topics. Also, I happened to be there in the courthouse hallway when she came out and left while court apparently continued. She looked shaken. Her expression was not happy. Neither was she composed and stoic like she appeared to me after the conclusion of her rape shield hearing testimony. The bottom line -- it is all speculation. Such are the frustrations of closed courtrooms for legal analysts.

Craig Silverman is a legal analyst for 7NEWS. He will be contributing his thoughts on the Kobe Bryant case in the months to come. He works for the downtown Denver law firm of Silverman and Olivas, P.C., which you can contact through their Web site or by calling (303) 595-0529. You can read Craig's bio here.

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