Invoking the Rule: Why Most Witnesses Are Not Permitted to Watch the Trial

 In Criminal

Trials can be stressful, so it’s only natural for defendants and victims alike to want their witnesses in court supporting them. Unfortunately, that’s not always possible. What many people do not realize is that most trial witnesses – people who are expected to testify —will not be allowed in the courtroom and will be prohibited from discussing the case until after the trial is over if “the Rule” has been invoked by either side. That could include family members, friends, and co-workers. The rule that keeps them out of court is not designed to deprive them of support. It is meant to ensure that witnesses will testify based on their own recollection of events. This prevents a witnesses testimony from being influenced by the testimony of another witness.

Invoking the Rule in Texas

In Texas, there is a procedure called “invoking the Rule,” which allows the prosecution or defense to request that witnesses be prevented from hearing the testimony of other witnesses. The purpose of the so-called “witness rule” — which actually refers to the Texas Rules of Evidence: Rule 614 Exclusion of Witnesses — is to ensure that witnesses testify only about things that they have actual knowledge. It prevents them from being influenced, tainted or tailoring their testimony to fit that of a previous witness.

It’s important, however, to point out that there are four groups who are exempt from the witness rule and permitted to stay in the courtroom:

(a) a party who is a natural person and, in civil cases, that person’s spouse;

(b) after being designated as the party’s representative by its attorney:

(1) in a civil case, an officer or employee of a party that is not a natural person; or

(2) in a criminal case, a defendant that is not a natural person;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) the victim in a criminal case, unless the court determines that the victim’s testimony would be materially affected by hearing other testimony at trial

Generally speaking, defendants, investigators assigned to the state and defense, expert witnesses and victims are exempt from the rule and are permitted to stay in the courtroom.

Invoking the Rule in Federal trials

Witnesses may also be excluded under the Rule in federal court. The Rule is codified under Federal Rules of Evidence Rule 615. There are four exceptions that allow certain individuals to remain in the courtroom after the Rule has been invoked. They are:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

What happens when the Rule has been invoked?

The Rule can be invoked at any point in the trial, but generally it is invoked before the first witness testifies. When either side requests that the “rule be invoked,” the judge will then instruct all the witnesses, except the parties or those who are exempt, to leave the courtroom and not to discuss the case with anyone, except the attorneys involved or their investigators.

When is the Rule lifted?

The Rule is lifted when the evidence and testimony has concluded. Witnesses are able to watch closing arguments and wait on a verdict. 

What happens if the Rule is violated?

Failure to comply with the judge’s instructions can result in the witness held in contempt of court, which could include jail time or a fine. It could also result in a mistrial or could be used for grounds of an appeal.

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