Zimmerman Trial : Sequestration of Witnesses and Possible Violation By Defense Witness
by John M. Phillips
Twitter has been abuzz over the past day over whether the Zimmerman defense team violated the sequestration order, also called the “exclusionary rule,” as a defense witness attended portions of the trial before his testimony. Because the trial is being live simulcast, the proof is evident in replays of trial.
The rule on sequestration (or exclusion) of witnesses is designed to avoid fabrication and collusion. It does not generally apply to parties, victims and immediate family of victims. It can be extended or constricted by the judge.
It has traditional roots in the Bible’s Old Testament:
Are you such fools, you sons of Israel? Have you condemned a daughter of Israel without examination and without learning the facts?”And Daniel said to them, “Separate them far from each other, and I will examine them.
-Book of Susanna (verses 48–64), Apocrypha of the Old Testament, Revised Standard Version
The story of Susanna has been cited by courts throughout the world, throughout history, as a principle example of the importance of not allowing witnesses to influence each other. Let each memory stand on its own.
Zimmerman’s friend, financial supporter and key witness sat in Court before his own testimony. He then told the jury he loved Zimmerman like a son, spent about $1,700 in clothes so that he could show “respect for the process” and also wrote a check for $2,500 and contributed $500 to Zimmerman’s defense. Despite experts saying you need close familial relationship for voice identification, Donnelly testified, that, “There’s absolutely no doubt in my mind that it’s George Zimmerman.” After his testimony, prosecutors claimed unfair surprise and asked Judge Debra Nelson to exclude his statements. Prosecutor Richard Mantei said the defense failed to inform the prosecution that Donnelly was going to testify on the 911 call. During his deposition, he denied having listened to the recording. The judge denied striking his testimony.
Evidence reveals he sat in Court. Not only that, but he sat in Court during crucial witness testimony. The defense usually has the obligation to make sure its witnesses follow the rule. The State should have reported it and made it an issue for the judge. Bailiffs and court personnel are also tuned into these concerns. The ball was dropped. The question is was this a violation and what is the remedy?
Was this a violation?
The extent of the violation depends on what the “evidence” shows- what he saw, what he heard. Sometimes there is no harm from a witness hearing attorney argument or even other witness testimony. Some error is harmless. However, it appears that Donnelly attended crucial witness testimony. Watch here-
Witnesses should avoid the courtroom at all costs while the exclusion order exists. He was under an order to do so. That order should have been conveyed by defense counsel. Was the order was not specific enough to force this witness out of the courtroom when other witnesses were on the stand? I don’t think so. I force them out- every time, no matter what. I won’t even let them sit by the door and kicked a spouse out of the courthouse who kept listening to the crack in the door.
What is the remedy?
The Court must reveal everything and determine if it undermined fairness. If so, a new trial may be in order. Sanctions may also be allowed.
This video, shows Donnelly sitting in trial listening to testimony. We think this needs to be handled now. It may have jeopardized the fair trial of this case.
Incidentally, Donnelly also testified he taught Zimmerman how to tie a tie. Something must have been lost in translation there, too.