Atkinson v. State, 74--590
| Citation | 317 So.2d 807 |
| Decision Date | 25 July 1975 |
| Docket Number | No. 74--590,74--590 |
| Parties | Leonard Earl ATKINSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
James C. Dauksch, Jr., of Dauksch & Brownlee, Orlando, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
At the commencement of appellant's criminal trial the court ordered the sequestration of all witnesses. Subsequently, deeming two of appellant's alibi witnesses to have violated the order of sequestration, or 'rule' as it is frequently called, the judge disqualified them from testifying. We hold that under the facts of this case such was prejudicial error requiring the judgment to be reversed and appellant to be afforded a new trial.
At the commencement of the trial, after the jury had been selected and sworn, the court ordered the sequestration of the witnesses, or as it is more commonly called, 'put the witnesses under the rule'. The judge instructed the witnesses that they were required to remain out of the courtroom at all times except when called to testify, and that both before and after testifying they should not discuss any of the facts of the case among themselves nor discuss with any other witness who had previously testified the nature or substance of his testimony. Although cautioning the witnesses as to the penalties for violation of the order, the judge explained that the order did not prohibit them from discussing the case with counsel for either the State or the defendant.
The court's order of sequestration was in accordance with a time honored practice designed to prevent the shaping of testimony by hearing what other witnesses say, Taylor v. United States, 388 F.2d 786 (9th Cir. 1967), such practice having its roots in antiquity. See, 6 Wigmore, Evidence §§ 1837 et seq. (3rd Ed. 1940). Although at different times courts have, in the exercise of discretion, actually separated the witnesses from one another so as to preclude all conversation between them, separation to this extent is rarely done since it is not only impractical but serves no useful purpose so long as the prospective witnesses abide by the court's instructions. This is in recognition of the fact that conversations between prospective witnesses on matters unrelated to the facts of the case are not harmful and need not be prohibited. They were not prohibited in the instant case.
Appellant's defense was alibi, for which he had three witnesses. After the first witness had testified, the State objected to appellant calling the remaining two, alleging they had violated the court's order of sequestration. It developed, upon the court's voir dire examination of five persons purporting to have knowledge of the alleged violation (including the two prospective alibi witnesses) that the only proof relating at all to the State's allegation merely established that the two prospective alibi witnesses had been conversing with one another, a fact which each readily admitted. However, there was not the slightest evidence developed which contradicted their emphatic denial of having discussed the case or their possible testimony. Nevertheless, and without more, the court ruled that appellant's two prospective alibi witnesses were disqualified from testifying.
At the outset, we question whether there was a valid basis for the court's apparent conclusion that the witnesses had violated the rule of sequestration as there is a total absence of any proof to that effect. Neither the court's expressed instructions in this case, nor the commonly accepted construction of the rule's requirements prohibit absolutely all conversation between or among prospective witnesses. It is only conversation relating to the facts of the case which is proscribed. While the judge was not bound to accept as true the prospective witnesses' denial of a violation of the rule, there does not appear to be any basis for him to assume, in the absence of other proof, that the prospective witnesses had in fact violated the court's rule. Though we are inclined to disagree with the court's conclusion, our decision in this case does...
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Del Monte Banana Co. v. Chacon
...judge finds it necessary, the jury can be removed and a short informal hearing on the matter can be held. 2 See, e.g., Atkinson v. State, 317 So.2d 807 (Fla. 4th DCA 1975), cert. denied, 330 So.2d 21 If the judge is satisfied that no violation has occurred, the trial should proceed with no ......
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Johnson v. Canteen Corp., 87-338
...or among prospective witnesses. It is only conversation relating to the facts of the case which is proscribed." Atkinson v. State, 317 So.2d 807, 808 (Fla. 4th DCA 1975), cert. denied, 330 So.2d 21 (Fla.1976). Here, the conversation between Dr. Hutson and Dr. Ehlert pertained to the former'......
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Judd v. State, 4D99-2942.
...however, was decided prior to Dumas and Steinhorst, and we follow the decisions of the supreme court. Consistent with Atkinson v. State, 317 So.2d 807 (Fla. 4th DCA 1975), the court in Dumas held that the trial court could not preclude a witness from testifying in violation of the rule unle......
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Cokely v. State
...316, 318 (Fla. 1st DCA 2003) (citing Steinhorst, 412 So.2d at 336). In Dumas, our supreme court held, consistent with Atkinson v. State, 317 So.2d 807 (Fla. 4th DCA 1975), that it was error to preclude a witness who violated the rule of sequestration from testifying unless the trial court c......