The Rule of Sequestration is a common law rule that could be invoked by parties to a legal proceeding to exclude non-party witnesses from listening in on what other witnesses testified to.
This common law rule has been codified as Florida Statute 90.616 (“Exclusion of witnesses”) and states in relevant part that “At the request of a party the court shall order […] witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses.”
If requested by a party, the exclusion of witnesses from a proceeding is mandatory, as the rule uses the word shall.
Reporter’s Privilege?
Yes, Florida does have a Journalist’s privilege that can be invoked. See Florida Statute 90.5015. And I believe that a journalist would likely be able to avoid being forced to testify based upon this privilege; especially as it relates to the Casey Anthony case.
More importantly, to overcome the privilege, Baez and Co. would have to show:
- The information is relevant and material to unresolved issues that have been raised in the proceeding for which the information is sought;
- The information cannot be obtained from alternative sources; and
- A compelling interest exists for requiring disclosure of the information.
Given this high legal hurdle, it is unlikely that any reporter has information that would satisfy all three prongs.
What if?
But let’s assume for a minute that the privilege does not exist, could Baez really get a reporter excluded from sitting in on the trial by listing them on the witness list?
A black letter reading of the rule would appear to say yes, as exclusion is a mandatory requirement.
However, Gore Newspapers Company v. Reasbeck, 363 So. 2d 609 (Fla. 4th DCA 1978), an old opinion out of the Fourth District Court of Appeals (which predates the codification of F.S. 90.616), indicates that if the invocation of the rule is challenged by the witness or the opposing party, the judge must determine that the “rule” is being properly invoked.
In that case, the defense attorney declared that any person who walked in the room was a potential witness and asked the court to swear them in so that the rule of sequestration applied.
On appeal, the appellate court pointed out early on in the opinion that “the entire charade was simply a ruse by counsel for the defendant to exclude the press from that proceeding.” The court found that “the granting of the rule of sequestration was improper and that the trial judge erred in failing to exercise his discretion by denying the requested invocation of the rule.”
Exercise in Futility
So at the end of the day, it appears that the Defense team’s hijinks are just another exercise in futility. Even assuming Judge Perry does not strike their latest witness list, they are unlikely to overcome the reporter’s privilege and are even more unlikely to successfully invoke the Rule of Sequestration.
Moreover, it is abundantly clear that they are listing the reporter solely as a ruse to harass the reporter – not to mention make an end run around the First Amendment.
A Historical Note
(A little legal history, the Fifth District Court of Appeals was created by legislative act in 1979 and was carved out of the Fourth District Court of Appeals. So all Fourth District Court of Appeals decisions made prior to 1979 are binding on the Fifth District Court of Appeals.)
48 responses to “The Rule of Sequestration”
Yes, I agree it appears to be silly harassment but is the justification going to be something in the Maya Derkovic deposition vs. the taped and televised interview Kathi did with the “jailhouse snitch” as you called her.
Baez can hardly write that Kathi is mean to him and is always picking on him, as a reason to bring her on as a witness and keep her out of court. Can he?
Unfortunately for Baez, I think that Florida’s Journalist Privilege will prevent him from calling any reporter as a witness unless he can overcome the privilege, which I do not think he could.
Thank you – hooray! To say nothing of the deadline that is “way past”. Great to see an article on your blog – very timely – thank you!
At first blush I would agree. What if Baez had info that she was working as agent for the State? I know that is also a big hurdle. What if there was proof she conducted an interview with leading question provided by LE or gave privleged info to a witness?
This are what if questions, as I have no idea why Baez is calling her as a witness.
I’ve noticed the esteemed defense team tend to release these “bombshell” motions to (possibly) diffuse other more pertinent information related to the case. You know the important ones, like how about their expert’s reports (Reich and Logan) that were due today by 4 pm. Instead, everyone’s talking about Kathy Bellich as a possible witness for the defense. You’ve just explained why it won’t happen, or why it would be surpising if it did happen.
I guess it’s a game of strategy but IMO these two, the inept Baez and the has-been Mason, are failing miserably. Tranparently desperate IMO.
Richard, thanks for explaining WHY this will be “another NON EVENT” by the Defense, instead, it is getting Belich more publicity! She’s a hoot, like a “yip dog attached to the ankle you can’t get rid of or kick off!”
It would seem Baez would use his time more constructively, like trying to FIGURE OUT what he is going to tell a jury as the “COMPELLING REASON that KC didn’t call LE when she claimed Caylee was missing/murdered for 31 days!”He did promise on National TV repeatedly it will be explained during her trial! Garagos claimed there were “roving gangs that possibly could have murdered Lacy/Conner,” Baez is no Garagos, Scott Peterson paid a ton for that ridiculous excuse.
Mr Hornsby what do you make of the letter w/attachments from G.Stogsdill, Court Reporting Services to the Court? How do you think Judge Perry will handle it? In chambers? In court? Thank you very much
It is more of a business dispute than a legal problem for the case. At the end of the day, if the reporter will not accept the JAC rate, Baez will have to pay it out of pocket and collect whatever amount that JAC will pay of the total amount.
I thought the judge already ordered it to be paid.
Sorry, should have read ahead.
Richard, will the Anthony’s be kept out of the Courtroom? Since they will testify during the trial, then at the Penalty Phase, will they not be able to attend the trial?
IF NOT, what would keep GA/CA from watching it on IN SESSION as In Session is going to televise the trial? Those two have proven repeatedly to be dishonest, too late to depend on them to do the right thing.
Yes, they will likely have to stay out unless both the State and Defense agree to exempt them from the rule of sequestration.
Mr H
Would you be kind enough to give an opinion on a couple of hypotheticals.
Q Opening and closing arguments, not withstanding, is this Judge in your opinion, likely to allow Baez to indulge in his Atticus Finch mode when questioning witnesses. Im thinking of his constant references to the sunshine laws and how uniqe he feels this case is. Or does that all end when the trial gavel comes down.
Q What sort of warning does the Judge usually give to spectators or family when the more graphic testimony is about to be heard. I’m thinking of a scenario where someone walks out , comes back in then walks out again.
TIA
Most of Baez’s rhetoric will not be tolerated once the gavel comes down.
I have never had a judge give a warning before graphic evidence is presented. I assume it is because it would unnecessarily call attention to the evidence, probably to the detriment of the defendant.
Thanks Mr H
Just a side note, I realize the question was about the judge giving a warning about graphic testimony, but I have seen cases where the state has notified the victim’s family when there might be graphic evidence/testimony, such as a medical examiner’s testimony, so they can plan to sit that day out if they wish.
I was wondering, could Casey or her family members call Bozo on ineffective council? Bozo seems to be performing badly. He spends more time playing childish games, almost like he’s never been in a court room before. What’s sad is he brings all these other attorneys down, and I’m almost guessing his experts will be brought down. Jeff Ashton and Linda Drain Burdek are always so professional, I can just imagine during trial that Bozo is really going to look like a fool. This whole thing has been in the media and on the internet, there are people who are not lawyers that think Bozo is just totally over his head, could there be an appeal for ineffective council or not.
Richard, I would think you would be a little more informed of what has already taken place in this case. In a recent hearing, Mason brought up the difference in what JAC had agreed to pay and what Mr. Stogsdill charged. Judge Perry then approved the additional payment of around $900. There is no reason for Mr Stogsdill to sent the letter as the dispute or misunderstanding had been resolved in an Order for JAC to make full payment to him.
Gray, contrary to popular belief I do not keep up with every single event in the Casey Anthony case. So I was unaware of Judge Perry’s authorization. Regardless, the JAC rules state that in cases where the vendor has not executed a JAC contract, the attorney will have to pay the costs out of pocket and then seek reimbursement from JAC. Judge Perry just gave them a break, likely to speed things up.
Stogsdill had his name and company smeared in open court. He was basically called a liar. Good for him for not lying down and taking it. Sure he was paid his money and sure now all of his clients think he runs a dishonest business. Judge Perry may have given them a break but there will be someone reviewing this case and how the money was allocated. JB could find a bill in his lap for this at some point.
I am not necessarily disagreeing with you. However, I don’t recall (but as Gray points out I am very uninformed) the defense team ever actually calling out the court reporter’s office by name. Regardless, it reflects poorly on the defense team as it is their responsibility to settle any business disputes.
I apologize. I didn’t mean you very uninformed. Just on this issue you commented before you knew of the details. I am very uninformed also as whether Mr Stogsdill to date has turned over the completed transcripts to the defense. The last correspondence I read he refused to complete the “red tape” papers to request the JAC payment. ITA with you that I didn’t hear Mr. Mason say anything derogatory towards him as Mason went to bat to get all his fees paid to him.
Gray is only partially correct. Mason’s office sent an e-mail and Baez office sent an e-mail and neither one of them referred to being co-counsel and no-one who read the e-mails could have known they were related. Incompetence once again. Although one of them did refer to being paid by JAC, JAC is a Florida agency and it is unreasonable to expect that a court reporter in Tennessee would know or care what JAC is. What was never mentioned in either e-mail was that payment would be at a reduced rate which was the essence of the dispute. Baez then slandered the court reporters claiming that they agreed then reneged on JAC rates – an outright lie since rates were never mentioned by either Mason or Baez. Interesting that JAC forms were only sent to the court reporters once it was too late to back out. Competent lawyers have cc each other on all e-mail, have one co-ordinator of administrative matters and sign contracts with people they do business with – they should not need a lawyer to tell them about contract law.
Everything is public record. We knew who he meant. It’s been said before who they were using. While I’m not 100% he called him out by name, it doesn’t matter. The damage is done.
I wonder if Baez could get disbarred if he is found to be abusing the system simply to shut Kathi Belich up.
Well, technically he has not done anything wrong yet by listing a reporter. We are just assuming that he listed a reporter for the sole purpose of excluding a reporter.
Because even if he might be precluded from calling a reporter, there is nothing wrong in listing one.
It would only become an issue if he tried to enforce the “rule of sequestration” against a reporter he listed that the issue would be brought up.
I think it’s fair to characterize Kathi Belich as a “hostile witness” to the defense in which case I would have expected them to have taken her deposition prior to trial if they REALLY thought she had any “relevant and material” information which “cannot be obtained from alternative sources.” If they haven’t served her with a trial subpoena, she can go on a cruise to the Bahamas and visit New Zealand and otherwise make herself unavailable as a witness. It’s been known to happen…
Thanks for this timely article. Particularly nice that you cite cases and explain it all in such an understandable way.
Richard, the Defense listing K Belich as a witness reminded me of reading when the Defense was “hot on Kronk,” they listed Mr. Evan’s, Kronk’s attorney on their witness list. Mr. Evan’s was hopping mad, he thought it was ploy to leave Kronk without representation since if Mr. Evan’s was a witness, he couldn’t represent Kronk. Evan’s vowed to fight the Defense, but luckily, the Defense moved on to find SOD.
Well, there is no rule that says a lawyer has to stop representing someone just because they are listed as a witness in the same case their client is listed as a witness in.
That myth was claimed by Brad Conway when he used his self proclaimed status as a witness to require him to have to step down as attorney for George and CIndy Anthony.
The reality is that it is common (although infrequent) for lawyers of parties in cases to sometimes have to testify about certain matters. There are even cases where a defense attorney or prosecutor will testify during the trial (as opposed to at a pretrial hearing) about a specific issue.
A reoccurring example is a prosecutor who testifies as to what he told a witness who the defense claims was give special treatment. Other examples have to do with how certain documents or pieces of evidence were obtained.
Thanks for explaining that! Slipped my mind that Conway had too used that excuse with the Anthony’s!
Are there charges associated with filing a motion? If so, how much and who pays?
No, all filings in criminal cases are free of charge.
Thank you, Mr. Hornsby.
There are transactions under the name “Casey Marie Anthony”. Who is paying for those…the defense?
TY for taking the time to answer question.
Mr. Hornsby-
The defense has yet to explain the entire “nanny” story. It appears to me that the entire issue is being ignored.
I understand it’s the job of the defense to file motions to exclude evidence in an effort to find a way to poke holes in the states case.
Wouldn’t you agree, regardless of any other issues, the whole “nanny” thing will weigh heavy in the jury’s minds?
Mr. Hornsby,
Will this filing by the defense be granted? I do not see where justified the need to add these witnesses late, but I’m not a lawyer.
http://www.wesh.com/pdf/26889140/detail.html?utm_source=manual&utm_medium=facebook&utm_campaign=casey+updates
If what he says is accurate, I think he has shown good cause. He also makes a valid point about the timing of he State’s filings; however, he should file a motion to strike just as they have – rather than claim their violations as an excuse to also violate the court’s rulings.
With all of that said, I still don’t think he can call a reporter.
Thank you, I appreciate you taking the time to explain!
I enjoyed your opinions on the spoliation motion.
What am I missing here? The defense filed a new updated witness list naming an attorney by the name of Marvin Schecter as a witness. In this response they are saying the state should have ignored what they filed with the court and instead should have phoned them and they would have been told he has actually been removed from the list. Within 24 hours? The poster above already included the link, but I’ll provide it again. I don’t get it.
http://www.wesh.com/download/2011/0216/26889138.pdf
Richard,
I just want to thank you for taking the time to educate us, and/or, at least give your educated opinion. I wish you would stop by WEBSLEUTHS a little more often, we desperately need your attorney expertise over there!!
You are valued more than you know and thanks again!
Mr. Hornsby,
I am sorry to be ignorant to the comment, and i do appreciate what you noted however; usually when you start off your relate your “comment” to a particular event or related report however this did not? Has Baez or Mason for that matter made mention of excluding reporters from the Trial of the Century?
I do enjoy your work Mr. Hornsby so dont get me wrong.
Respectfully,
B-Man
Will he ever stop making an idiot out of himself? He’s so childish. He can’t win either way. The Guy is just bad luck.
Nevermind Mr. Hornsby, i am the idiot, one thing i must consider or what i need to do is to read updates on the case. Unfortunately being in Colorado i forget to read local news papers/websites so my bad, i understand now so please disregard my last post.
[…] Richard Hornsby, a legal analyst for WESH television station has written an article addressing the topic in case anyone was wondering if Jose Baez’s intention was to add Kathi Belich as a witness to keep her out of the court room during the trial and hopefully away from the Defense team as Kathi Belich has been more than disrespectful to Casey Anthony’s defense team in her attempt to report on the case. http://blog.richardhornsby.com/2011/02/the-rule-of-sequestration/ […]
Kathi Belich is doing her job with the blessing of her boss. I would say it is more important that the defense team has been disrespectful to the court.
Why does a reporter bother the defense team so much? Is she hitting a nerve with her questions? The “nerve” being that they have no real defense, that they have no chance of proving her “innocent”? She is asking the questions we all want to ask. At least all of us who see through the defense shennanagins that occur in every defense where there is no chance of “proving their client innocent”. With that said, since they have no defense, they will try to get every single thing thrown out that proves their client guilty, circumstancial or otherwise, which is what defense attorneys do.
Sounds to me like this defense “strategy” won’t work Kathi B. will be there to do her job.
Futile indeed.
Richard, can Casey cop an Alford plea on these charges? Over on Blink’s site, she’s saying that Casey can’t, because it’s a DP case.
I’ve learned that Blink doesn’t always know what she’s talking about, so your word on this is?
Thanks!
Mr.Hornsby,
Re: The article on wesh tv tonight . Do I understand you correctly?. Is being none compliant with the court in Florida, more the rule than the exeption?. A relatively minor thing, is this the norm in a capital murder case over there?. This happens quite often with this defense.