3.3Sequestration of Witness

On its own motion or at the request of a party, “the court may order witnesses excluded [from the courtroom¹] so that they cannot hear other witnesses’ testimony.” MRE 615. However, a party who is a natural person, a non-natural party’s representative, or a person essential to presenting a party’s claim or defense may not be excluded. Id. See also MCL 600.1420.

A victim of a crime has the right to attend the trial and all other proceedings related to that crime. Const 1963, art 1, § 24. However, if the victim is a witness, the court may, for good cause, sequester the victim until he or she first testifies. MCL 780.761; MCL 780.789 (juvenile proceedings). The victim must not remain sequestered once he or she testifies. MCL 780.761; MCL 780.789.²

A.Violation of Sequestration Order

The trial court has discretion to exclude or allow the testimony of a witness that has violated a sequestration order. People v Nixten, 160 Mich App 203, 209-210 (1987). However, excluding a witness’s testimony for violating a sequestration order “is an extreme remedy that should be sparingly used.” People v Meconi, 277 Mich App 651, 654 (2008). Other possible remedies include holding the offending witness in contempt,³ and allowing cross-examination of the witness concerning the violation. Id.

In Meconi, the trial court abused its discretion by excluding the victim’s testimony for violating the sequestration order when the violation “resulted from an innocent mistake,” and the victim “only heard short opening statements, not testimony[.]” Meconi, 277 Mich App at 654-655. Compare with People v Allen, 310 Mich App 328, 347 (2015), rev’d on other grounds 499 Mich 307 (2016),⁴ where the trial court did not abuse its discretion by excluding the testimony of a witness who violated the court’s sequestration order where its decision was based on the witness’s violation of the sequestration order and defense counsel’s violation of the court’s scheduling order (counsel failed to provide notice of the witness).