DWI Defendant Alleges Violation of New Jersey Rules Regarding Sequestration of Witnesses

Witness impeachmentThe legal systems of the U.S., New Jersey, and other states have developed rules and procedures regarding trials. The New Jersey Rules of Evidence (NJRE) establishes standards for the admissibility of various types of evidence, including testimony and documentary evidence, as well as procedures for questioning witnesses at trial. Any party to a case can ask the court to sequester witnesses, meaning that witnesses expected to testify at trial cannot see other witnesses’ testimony or discuss the case with others. The Appellate Division ruled last year on a driving while intoxicated (DWI) defendant’s claim that prosecutors violated a sequestration order in State v. McMahon.

NJRE 615 simply states that any party may request an order for sequestration of witnesses, or that the court can issue such an order on its own motion. This means that witnesses must remain outside of the courtroom during other witnesses’ testimony, and that they cannot discuss their upcoming testimony with other witnesses. Courts may hold witnesses in contempt if they violate a sequestration order. In a 1992 decision, Morton Bldgs. v. Rezultz, the New Jersey Supreme Court described “the purpose of sequestration” as being “to discourage collusion and expose contrived testimony.”

Rule 615 of the Federal Rules of Evidence goes into more detail about exceptions to sequestration. A defendant, for example, cannot be sequestered from their own case. Anyone found by the court to be “essential to presenting the party’s claim or defense” also cannot be sequestered. The federal rule is not binding in New Jersey state courts, but it is useful for a general understanding of how the rule works.
Police officers stopped the defendant in McMahon for speeding. According to the court opinion, they claimed they saw a “cup of liquid” in the vehicle’s front-seat cup holder, which the defendant allegedly admitted was “scotch whiskey.” The officers testified that the defendant had “a strong odor of alcohol on his breath” and exhibited other “indicia of…inebriation.” The defendant was charged with DWI, refusal to submit to breath testing, and other traffic offenses.

At the beginning of a probable cause hearing, the municipal court judge excluded the prosecution’s radar evidence, but allowed it to present the officers’ testimony about their observations of the defendant. The court also granted the defendant’s motion to sequester the state’s witnesses—i.e., the arresting officers.

The defendant objected to the prosecutor speaking to the witnesses prior to the probable cause hearing, stating “concern that his adversary would coach the witnesses.” The court overruled this objection, but allowed the defendant’s counsel to be present when the prosecutor spoke to the officers. The purported violation of the sequestration order was one of the defendant’s points on appeal.

The Appellate Division affirmed the lower court ruling, finding that the attorney presented a sequestered witness can still talk to them about their testimony. It further found that “there was no evidence that the prosecutor coached the witnesses,” although it did not state what kind of evidence might satisfy that standard.

If you are facing charges of alleged DWI in a New Jersey municipal court, DWI attorney Evan Levow can guide you through the court process, help you understand your rights, and prepare the best possible defense for your case. Please contact us today online or at (877) 593-1717 to schedule a free and confidential consultation to discuss your case with a member of our team.

More Blog Posts:

Can a New Jersey DWI Defendant Claim “Insanity” in Court? New Jersey DWI Attorney Blog, February 13, 2017

Allegations of Record Tampering Could Affect 20,000 New Jersey DWI Convictions, New Jersey DWI Attorney Blog, December 12, 2016

New Jersey Appellate Court Considers DWI Defendant’s “Confusion” Defense, New Jersey DWI Attorney Blog, August 16, 2016

Photo credit: Eric Chan from Palo Alto, United States [CC BY 2.0], via Wikimedia Commons.