2020 Georgia Code
Title 24 - Evidence
Chapter 6 - Witnesses
Article 1 - General Provisions
§ 24-6-615. Exclusion of Witnesses

Except as otherwise provided in Code Section 24-6-616, at the request of a party the court shall order witnesses excluded so that each witness cannot hear the testimony of other witnesses, and it may make the order on its own motion. This Code section shall not authorize exclusion of:

1. A party who is a natural person;
2. An officer or employee of a party which is not a natural person designated as its representative by its attorney; or
3. A person whose presence is shown by a party to be essential to the presentation of the party's cause.

(Code 1981, §24-6-615, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

- Excluding witnesses, Fed. R. Evid. 615.

- For article, "Dancing with the Big Boys: Georgia Adopts (most of) the Federal Rules of Evidence," see 63 Mercer L. Rev. 1 (2011). For annual survey on evidence, see 65 Mercer L. Rev. 125 (2013).

ANALYSIS

• General Consideration
• Right of Sequestration
• Exceptions to Sequestration Rule
• Testimony of Witnesses Not Sequestered

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1873, § 3863, former Code 1882, § 3863, former Civil Code 1895, § 5280, former Penal Code 1895, § 1017, former Civil Code 1910, § 5869, former Penal Code 1910, § 1043, former Code 1933, § 38-1703, and former O.C.G.A. § 24-9-61 are included in the annotations for this Code section.

- Purpose of the rule of sequestration is to prevent a witness who has not testified, or who has not completed his or her testimony, from overhearing and having his or her testimony affected by the testimony of another witness. Poultryland, Inc. v. Anderson, 200 Ga. 549, 37 S.E.2d 785 (1946) (decided under former Code 1933, § 38-1703); Hall v. Hall, 220 Ga. 677, 141 S.E.2d 400 (1965); General Oglethorpe Hotel Co. v. Lanier, 99 Ga. App. 401, 109 S.E.2d 769 (1959) (decided under former Code 1933, § 38-1703); Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975); Byrd v. Brand, 140 Ga. App. 135, 230 S.E.2d 113 (1976) (decided under former Code 1933, § 38-1703); Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472 (1979); Lackey v. State, 246 Ga. 331, 271 S.E.2d 478 (1980) (decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703).

Import of former O.C.G.A. § 24-9-61 was to preserve the integrity of testimony with the ultimate goal of arriving at the truth; thus, the rule extended to communications, direct and indirect, between witnesses outside the courtroom. O'Kelley v. State, 175 Ga. App. 503, 333 S.E.2d 838 (1985) (decided under former O.C.G.A. § 24-9-61).

Purpose of the rule of sequestration was to prevent a witness who had testified from influencing the witness who had not. Whether the witness had been excused after testifying was of no relevance to the witness's duty to refrain from discussing the witness's testimony with another witness. Rogers v. State, 257 Ga. 590, 361 S.E.2d 814 (1987) (decided under former O.C.G.A. § 24-9-61).

Sequestration rule literally prohibits only witnesses from being examined in the hearing of each other. Johnson v. State, 258 Ga. 856, 376 S.E.2d 356 (1989) (decided under former O.C.G.A. § 24-9-61).

- Party's right to have the testimony of any witness, when material to the assertion of the party's rights, was unaffected by the provisions which related to the sequestration of witnesses. Higdon v. State, 46 Ga. App. 346, 167 S.E. 782 (1933) (decided under former Code 1933, § 38-1703); McCartney v. McCartney, 217 Ga. 200, 121 S.E.2d 785 (1961); Baker v. State, 131 Ga. App. 48, 205 S.E.2d 79 (1974) (decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703).

- Rule of sequestration did not prohibit discussions between an attorney for a party in the case and a prospective witness, at least so long as the attorney talked to the witness separately from the other witnesses and did not inform the witness of previous testimony. Norman v. State, 212 Ga. App. 105, 441 S.E.2d 94 (1994) (decided under former O.C.G.A. § 24-9-61).

- Rule of sequestration was not applicable to spectators and it is not designed to exclude nonwitnesses from the courtroom. Lackey v. State, 246 Ga. 331, 271 S.E.2d 478 (1980) (decided under former Code 1933, § 38-1703).

Trial court did not commit prejudicial error in allowing witnesses testifying on behalf of a child molestation victim to remain in the courtroom during the victim's testimony since the witnesses' testimony did not bolster the victim's testimony. Mullis v. State, 184 Ga. App. 525, 362 S.E.2d 90 (1987) (decided under former O.C.G.A. § 24-9-61).

- Rule of sequestration was not violated after victim/witness conversed with spectator during recess. Kirkland v. State, 173 Ga. App. 687, 327 S.E.2d 808 (1985) (decided under former O.C.G.A. § 24-9-61).

- In a juvenile court deprivation proceeding, evidence that father discussed his testimony with his mother before her testimony in violation of the rule of sequestration justified finding of contempt. In re A.L.L., 211 Ga. App. 767, 440 S.E.2d 517 (1994) (decided under former O.C.G.A. § 24-9-61).

Rule of sequestration was not violated by allowing a witness to testify who was in the courtroom at the time defendant attempted to plead guilty. Cook v. State, 221 Ga. App. 831, 472 S.E.2d 686 (1996) (decided under former O.C.G.A. § 24-9-61).

Sequestration of the victim's spouse was not required since, although the spouse's name appeared on the state's witness list originally, the spouse was removed from the list and did not testify. Edwards v. State, 224 Ga. App. 14, 479 S.E.2d 754 (1996) (decided under former O.C.G.A. § 24-9-61).

Even though a police officer, who was a witness for the state, spoke to defense witnesses during the trial, there was no violation of this rule, since there was no allegation that the officer spoke with the witnesses about their testimony or that any witness heard the officer's testimony. Bayer v. State, 230 Ga. App. 708, 497 S.E.2d 266 (1998) (decided under former O.C.G.A. § 24-9-61).

Procedure of the trial judge in allowing the victim to remain in the courtroom while a detective and polygraph examiner testified, and then letting the victim give the victim's own testimony was fully within the court's discretion and did not constitute reversible error. Shepherd v. State, 245 Ga. App. 386, 537 S.E.2d 777 (2000) (decided under former O.C.G.A. § 24-9-61).

Trial court did not violate former O.C.G.A. § 24-9-61 by permitting three prior difficult witnesses to remain in the courtroom together while the court instructed each of them on the limitation to be placed on their testimony since each was then examined out of the hearing of each other. Williams v. State, 277 Ga. 853, 596 S.E.2d 597 (2004) (decided under former O.C.G.A. § 24-9-61).

Because the target of the invocation of the rule of sequestration did not testify, the trial court's failure to enforce the rule against that person was not an abuse of discretion. Avren v. Garten, 289 Ga. 186, 710 S.E.2d 130 (2011) (decided under former O.C.G.A. § 24-9-61).

- Trial court erred in denying the defendant's request to invoke the rule of sequestration and, thus, the defendant was granted a new trial with regard to the defendant's driving under the influence conviction because the trial court did not use the court's discretion to decide that a witness could remain to assist the state or to allow testimony despite an infraction of the rule; the court simply held, incorrectly, that the rule of sequestration did not apply until the first witness was called for trial. Smith v. State, 324 Ga. App. 100, 749 S.E.2d 395 (2013).

- In a medical malpractice action, violation of an order on sequestration, indicated by defendant's expert when the expert revealed that defendant's attorney had discussed with the expert testimony of one of plaintiff's attorneys, did not warrant a new trial since the court gave curative instructions to the jury, admonishing defendant's attorney and advising that the violation could be considered in assessing the witness's credibility. Bean v. Landers, 215 Ga. App. 366, 450 S.E.2d 699 (1994) (decided under former O.C.G.A. § 24-9-61).

Appropriate remedy in a case where a witness violated the rule of sequestration when the witness spoke to another witness outside the courtroom was to admit testimony regarding the violation and failure to do so was reversible error. Childress v. State, 266 Ga. 425, 467 S.E.2d 865 (1996) (decided under former O.C.G.A. § 24-9-61).

- Once a witness who has been sequestered has testified and is excused and neither side intends to recall the witness, the witness can do as the witness pleases and leave or remain in the courtroom. Bigby v. State, 184 Ga. App. 94, 360 S.E.2d 751 (1987).

- Mutual observation of two witnesses outside the courtroom that they could not identify a suspicious party by one's shoes constituted only innocuous remarks which could not have been prejudicial even to appellant's codefendant, about whom the observation ostensibly related, especially given the fact that the two witnesses had already testified when their conversation took place. Almond v. State, 173 Ga. App. 423, 326 S.E.2d 798 (1985) (decided under former O.C.G.A. § 24-9-61).

Rule of sequestration was not violated when witnesses discuss their testimony outside of courtroom, as the rule only prevented a potential witness from being present in the courtroom while any other witness was testifying. Boyd v. State, 168 Ga. App. 246, 308 S.E.2d 626 (1983) (decided under former O.C.G.A. § 24-9-61).

- Witness's violation of the rule of sequestration when the witness spoke to another witness outside the courtroom was relevant to the issue of the witness's credibility and could be considered by the jury in assessing the credit to be given the testimony of the violator, irrespective of the violating witness's success in affecting the testimony of the other witness. Childress v. State, 266 Ga. 425, 467 S.E.2d 865 (1996) (decided under former O.C.G.A. § 24-9-61).

- Trial court did not abuse the court's discretion in sequestering defendant's wife when it appeared she would be called as a witness. Norman v. State, 255 Ga. 313, 338 S.E.2d 249 (1986) (decided under former O.C.G.A. § 24-9-61).

- Parent was not a party to criminal proceedings in which a juvenile was being tried as an adult and the court had discretion to grant a motion to sequester a parent who was a witness. Appling v. State, 221 Ga. App. 162, 470 S.E.2d 761 (1996) (decided under former O.C.G.A. § 24-9-61).

- In a prosecution for driving under the influence, the trial court did not abuse the court's discretion by sequestering defendant's expert on field sobriety evaluations during the presentation of the state's case. McNeil v. State, 229 Ga. App. 149, 493 S.E.2d 570 (1997) (decided under former O.C.G.A. § 24-9-61).

- In a negligence suit wherein a train patron was attacked and raped while exiting a train station, the trial court did not abuse the court's discretion by not forcing the plaintiff to either testify first or to leave the courtroom until the plaintiff testified after the rule of sequestration had been invoked as it was within the trial court's broad discretion to allow the plaintiff to remain in the courtroom during the presentation of the case and to testify at a later point in that presentation. MARTA v. Doe, 292 Ga. App. 532, 664 S.E.2d 893 (2008) (decided under former O.C.G.A. § 24-9-61).

- Denial of the plea in bar, which asserted double jeopardy grounds after the first trial of the defendant ended with the trial judge's sua sponte declaration of a mistrial due to a violation of the sequestration rule, was erroneous as there was no manifest necessity for a mistrial because there was no evidence that the rule was violated; even if two defense witnesses could have heard testimony from the witness stand, there was no evidence of prejudice from any presumed overhearing of testimony as there was no evidence showing that either of the witnesses would have changed their testimony to match that of other witnesses; and the mere absence of an objection to the mistrial, without more, did not constitute consent to the mistrial. Brown v. State, 354 Ga. App. 493, 841 S.E.2d 125 (2020).

- In the absence of an offer of proof as to expert's testimony, the appellate court could not review the defendant's claim of error based on the trial court's actions in invoking the sequestration rule and threatening the defendant's attorney and expert with contempt, whereupon the defendant's counsel withdrew the expert from the witness list so that the expert could remain in the courtroom and assist counsel during the state's case. Pittman v. State, 274 Ga. 260, 553 S.E.2d 616 (2001) (decided under former O.C.G.A. § 24-9-61).

- Defendant's counsel did not provide ineffective assistance because counsel did not object to the trial court's failure to admonish sequestered witnesses not to talk to each other as former O.C.G.A. § 24-9-61 did not prohibit the witnesses from having any contact, but merely prohibited them from discussing their testimony and/or the charges. Ogle v. State, 256 Ga. App. 26, 567 S.E.2d 700 (2002) (decided under former O.C.G.A. § 24-9-61).

Cited in Scott v. State, 332 Ga. App. 559, 774 S.E.2d 137 (2015).

Right of sequestration was absolute, subject only to the discretion of the trial judge in making exceptions thereto. Johnson v. State, 14 Ga. 55 (1853) (decided under former law); Bird v. State, 50 Ga. 585 (1874); Hughes v. State, 128 Ga. 19, 57 S.E. 236 (1907) (decided under former Code 1873, § 3863); Hill-Atkinson Co. v. Hasty, 17 Ga. App. 569, 87 S.E. 839 (1916); Blitch-Everett Co. v. Jackson, 29 Ga. App. 440, 116 S.E. 47 (1923) (decided under former Civil Code 1895, § 5280); Poultryland, Inc. v. Anderson, 200 Ga. 549, 37 S.E.2d 785 (1946); Montos v. State, 212 Ga. 764, 95 S.E.2d 792 (1956), overruled on other grounds, White v. State, 273 Ga. 787, 546 S.E.2d 514 (2001) (decided under former Civil Code 1910, § 5869); Smith v. State, 215 Ga. 51, 108 S.E.2d 688 (1959); Spurlin v. State, 222 Ga. 179, 149 S.E.2d 315 (1966) (decided under former Civil Code 1910, § 5869); Stuart v. State, 123 Ga. App. 311, 180 S.E.2d 581 (1971); Kendrick v. State, 123 Ga. App. 785, 182 S.E.2d 525 (1971) (decided under former Code 1933, § 38-1703); Rozier v. State, 124 Ga. App. 481, 184 S.E.2d 203 (1971); Bush v. State, 129 Ga. App. 160, 199 S.E.2d 121 (1973) (decided under former Code 1933, § 38-1703); Childers v. State, 130 Ga. App. 555, 203 S.E.2d 874 (1974); Parham v. State, 135 Ga. App. 315, 217 S.E.2d 493 (1975) (decided under former Code 1933, § 38-1703); Pearley v. State, 235 Ga. 276, 219 S.E.2d 404 (1975); James v. State, 143 Ga. App. 696, 240 S.E.2d 149 (1977) (decided under former Code 1933, § 38-1703); Whitfield v. State, 143 Ga. App. 779, 240 S.E.2d 189 (1977);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703).

Former O.C.G.A. § 24-9-61 gave either party the right to have witnesses sequestered, but it was subject to the discretion of the trial judge, who may make exceptions. Welch v. State, 251 Ga. 197, 304 S.E.2d 391 (1983) (decided under former O.C.G.A. § 24-9-61).

Trial court was vested with broad discretion in enforcement of the sequestration rule. Stevens v. State, 247 Ga. 698, 278 S.E.2d 398 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1982) (decided under former Code 1933, § 38-1703); Stephen W. Brown Radiology Assocs. v. Gowers, 157 Ga. App. 770, 278 S.E.2d 653 (1981);(decided under former Code 1933, § 38-1703).

Application of the rule of sequestration was within the sound discretion of the trial court. Wilson v. State, 158 Ga. App. 174, 279 S.E.2d 345 (1981) (decided under former Code 1933, § 38-1703).

Enforcement of former O.C.G.A. § 24-9-61 long had been vested in the discretion of the trial court. Croom v. State, 165 Ga. App. 676, 302 S.E.2d 598 (1983) (decided under former O.C.G.A. § 24-9-61).

Both parties have the right of sequestration of witnesses, but the enforcement of the rule is vested in the discretion of the trial court; the orderly presentation of evidence being a proper reason for an exception to the rule. Kelly v. State, 182 Ga. App. 7, 354 S.E.2d 647 (1987) (decided under former O.C.G.A. § 24-9-61).

State's explanation of the state's need for the deputy sheriff's assistance during trial can provide an acceptable reason for the trial court's exercise of the court's discretion in permitting the state's witness to remain in the courtroom and testify after another state witness has testified. Kelly v. State, 182 Ga. App. 7, 354 S.E.2d 647 (1987) (decided under former O.C.G.A. § 24-9-61).

- Trial court was not required to enforce the rule of sequestration until the presentation of evidence began. Blankenship v. State, 258 Ga. 43, 365 S.E.2d 265, cert. denied, 488 U.S. 871, 109 S. Ct. 183, 102 L. Ed. 2d 152 (1988) (decided under former O.C.G.A. § 24-9-61) Chastain v. State, 244 Ga. App. 84, 535 S.E.2d 25 (2000);(decided under former O.C.G.A. § 24-9-61).

Rule of sequestration did prohibit persons from remaining in courtroom during proceedings, but merely gave a right to either party to have the witnesses for the other party examined out of the hearing of each other. Stevens v. State, 247 Ga. 698, 278 S.E.2d 398 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1982) (decided under former O.C.G.A. § 24-9-61).

Witnesses may not be told what prior witnesses have said. O'Kelley v. State, 175 Ga. App. 503, 333 S.E.2d 838 (1985).

- In a garnishment proceeding, court did not err in denying plaintiff's request to sequester a witness (president of the judgment debtor) since the witness had been subpoenaed by plaintiff and when plaintiff did not announce or request that the witness be considered a hostile or an adverse witness. Travelers Ins. Co. v. Trans State, Inc., 172 Ga. App. 763, 324 S.E.2d 585 (1984) (decided under former O.C.G.A. § 24-9-61).

Failure of the district attorney to invoke sequestration of witnesses at the outset of the presentation of evidence constituted a ground for new trial. Parham v. State, 135 Ga. App. 315, 217 S.E.2d 493 (1975) (decided under former Code 1933, § 38-1703).

When the rule of sequestration was never invoked by either the state or defendant, the trial court did not err by permitting a witness to testify as a rebuttal witness for the state after the witness had sat through the trial and heard the testimony of the state's previous witnesses. Watson v. State, 222 Ga. App. 158, 473 S.E.2d 262 (1996) (decided under former O.C.G.A. § 24-9-61).

Trial counsel was not deficient in failing to properly invoke sequestration because the trial court did not abuse the court's discretion in allowing the state's expert to testify in rebuttal based in part on their review of the recorded testimony of the appellant's expert; accordingly, even if the appellant's counsel had invoked the rule of sequestration earlier in the trial, the court would not have abused the court's discretion in excepting the state's expert from the rule. Davis v. State, 299 Ga. 180, 787 S.E.2d 221 (2016).

- Since statute devolves upon each party who wishes to obtain the benefit of the rule to invoke the statute with respect to the separation of the witnesses of the party's adversary, the fact that the demand of the plaintiff was not entered until after one's own witnesses had testified would not militate against one's "right to have the witnesses of the other party examined out of the hearing of each other." Blitch-Everett Co. v. Jackson, 29 Ga. App. 440, 116 S.E. 47 (1923) (decided under former Civil Code 1910, § 5869).

When at the close of evidence for propounders of a will, the propounders moved that witnesses for the caveator be sequestered and this was opposed by the caveator, on the ground that the motion came too late, the court was correct in ordering that the witnesses be sequestered. Chedel v. Mooney, 158 Ga. 297, 123 S.E. 300 (1924) (decided under former Civil Code 1910, § 5869).

Judge may sequester witnesses on own motion. Meeks v. State, 51 Ga. 429 (1874) (decided under former Code 1873, § 3863).

- When a defendant could not have known whether the district attorney was going to call the FBI agent even though the defendant was listed on the indictment it cannot be held as a matter of law that the defendant waived defendant's objection to the witness being in the courtroom by not objecting until the witness was called. Parham v. State, 135 Ga. App. 315, 217 S.E.2d 493 (1975) (decided under former Code 1933, § 38-1703).

Application of the rule to a particular witness is within the sound discretion of the trial court and since the defendant did not object to allowing the victim's father to remain in the courtroom, the defendant thereby waived the issue on appeal; without a showing of manifest abuse of discretion, the trial judge's decision will not be disturbed. Earnest v. State, 262 Ga. 494, 422 S.E.2d 188 (1992) (decided under former O.C.G.A. § 24-9-61).

Defendant waived the defendant's argument regarding an alleged violation of the rule of sequestration, former O.C.G.A. § 24-9-61, caused by the courtroom sound system being loud enough to be heard in the hallway outside, by failing to object and continuing the defendant's examination of the witness. Watson v. State, 304 Ga. App. 128, 695 S.E.2d 416 (2010) (decided under former O.C.G.A. § 24-9-61).

- Since in all cases, either party shall have the right to have the witnesses of the other party examined out of the hearing of each other, the rule was applicable and mandatory in an interlocutory hearing for injunction. Poultryland, Inc. v. Anderson, 200 Ga. 549, 37 S.E.2d 785 (1946) (decided under former Code 1933, § 38-1703) Hall v. Hobbs, 107 Ga. App. 46, 129 S.E.2d 209 (1962);(decided under former Code 1933, § 38-1703).

- Requiring sequestration of plaintiff's expert witness during the videotaped testimony of defendant's expert witness was not error since plaintiff's expert had already been allowed to review a transcript of the testimony. Simonds v. Conair Corp., 185 Ga. App. 664, 365 S.E.2d 507 (1988) (decided under former O.C.G.A. § 24-9-61).

- When the rule of sequestration of witnesses is invoked by a defendant, it is the duty of the court to enforce the rule. Norman v. State, 121 Ga. App. 753, 175 S.E.2d 119 (1970), cert. denied, 401 U.S. 956, 91 S. Ct. 981, 28 L. Ed. 2d 240 (1971) (decided under former Code 1933, § 38-1703); Stuart v. State, 123 Ga. App. 311, 180 S.E.2d 581 (1971); Nance v. State, 123 Ga. App. 410, 181 S.E.2d 295 (1971) (decided under former Code 1933, § 38-1703); Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975); Pearley v. State, 235 Ga. 276, 219 S.E.2d 404 (1975) (decided under former Code 1933, § 38-1703); Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472 (1979); Simonton v. State, 151 Ga. App. 431, 260 S.E.2d 487 (1979) (decided under former Code 1933, § 38-1703); Mize v. State, 152 Ga. App. 190, 262 S.E.2d 492 (1979); Dampier v. State, 245 Ga. 427, 265 S.E.2d 565 (1980) (decided under former Code 1933, § 38-1703); 449 U.S. 938, 101 S. Ct. 337, 66 L. Ed. 2d 161; 245 Ga. 882, 268 S.E.2d 349 (1980) (decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);cert. denied,supplemented,(in light of Supreme Court opinion in Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980) (decided under former Code 1933, § 38-1703)).

- Refusal of the trial judge to grant sequestration when requested deprived the party of substantial and positive rights and was in absolute ground for new trial. Poultryland, Inc. v. Anderson, 200 Ga. 549, 37 S.E.2d 785 (1946) (decided under former Code 1933, § 38-1703); Smith v. State, 215 Ga. 51, 108 S.E.2d 688 (1959); Hall v. Hall, 220 Ga. 677, 141 S.E.2d 400 (1965) (decided under former Code 1933, § 38-1703); Stuart v. State, 123 Ga. App. 311, 180 S.E.2d 581 (1971); Rozier v. State, 124 Ga. App. 481, 184 S.E.2d 203 (1971) (decided under former Code 1933, § 38-1703); Childers v. State, 130 Ga. App. 555, 203 S.E.2d 874 (1974); James v. State, 143 Ga. App. 696, 240 S.E.2d 149 (1977) (decided under former Code 1933, § 38-1703); Whitfield v. State, 143 Ga. App. 779, 240 S.E.2d 189 (1977);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703).

- Fact that the witnesses were sequestered at a later stage of the trial did not cure the error of the court in refusing to invoke the rule of sequestration upon timely request prior to allowing the defendant's witnesses to testify. Hall v. Hobbs, 107 Ga. App. 46, 129 S.E.2d 209 (1962) (decided under former Code 1933, § 38-1703).

- Former O.C.G.A. § 24-9-61 authorized sequestration of a solitary defense expert witness to prevent the expert's hearing the testimony of the other witnesses. Accordingly, the trial court did not err in presenting defense counsel with a choice of whether to use the defense expert to assist in cross-examination or as a witness, but forbidding the expert's use for both roles. Greenway v. State, 207 Ga. App. 511, 428 S.E.2d 415 (1993) (decided under former O.C.G.A. § 24-9-61).

- Defendant did not show prejudice due to trial counsel's failure to invoke the rule of sequestration because the jury was informed of the earlier presence of the victim's father in the courtroom, defense counsel thoroughly cross-examined the father, and the trial court properly instructed the jurors on their role in resolving conflicts in the evidence and in determining the credibility of witnesses, the weight of the evidence, and whether a witness was impeached; thus, the jury was able to gauge the father's credibility and make a determination as to the weight, if any, it would give to the father's testimony. Pennington v. State, 313 Ga. App. 764, 723 S.E.2d 13 (2012) (decided under former O.C.G.A. § 24-9-61).

Trial counsel was not ineffective for failing to invoke the rule of sequestration at the beginning of the trial because the defendant failed to show any harm that resulted from the admission of the testimony of the victim's father; the evidence presented by both the state and the defense showed that the father's testimony about what happened did not conflict with the defendant's claim. Pennington v. State, 313 Ga. App. 764, 723 S.E.2d 13 (2012) (decided under former O.C.G.A. § 24-9-61).

Exceptions to Sequestration Rule

In general.

- Whether such witnesses should be instructed not to converse with other persons or with each other, and whether the witnesses who have been examined should be allowed to return to the room in which the others were waiting, were questions within the sound discretion of the trial judge, to be determined in the light of one's knowledge of the witnesses and of the case. Kelly v. State, 118 Ga. 329, 45 S.E. 413 (1903) (decided under former Civil Code 1895, § 5280); Turbaville v. State, 58 Ga. 545 (1877); Carson v. State, 80 Ga. 170, 5 S.E. 295 (1887) (decided under former Code 1873, § 3863); Talley v. State, 2 Ga. App. 395, 58 S.E. 667 (1907); Hudgins v. State, 13 Ga. App. 489, 79 S.E. 367 (1913) (decided under former Code 1882, § 3863);(decided under former Civil Code 1895, § 5280);(decided under former Penal Code 1910, § 1043).

Nothing prohibited anything other than the examination of witnesses out of the hearing of each other; former statute said nothing about other types of contact. Byrd v. Brand, 140 Ga. App. 135, 230 S.E.2d 113 (1976) (decided under former Code 1933, § 38-1703).

In the absence of some allegation of impropriety as the result of granting an exception to the sequestration order the court will not find prejudicial harm. Kendrick v. State, 123 Ga. App. 785, 182 S.E.2d 525 (1971) (decided under former Code 1933, § 38-1703); Smith v. State, 244 Ga. 814, 262 S.E.2d 116 (1979);(decided under former Code 1933, § 38-1703).

No harmful error was shown in a case when, after the witnesses have been sequestered, the solicitor general (now district attorney) interviewed a witness before placing the witness on the stand in the absence of an allegation that such witness was informed of what other witnesses had testified or what the witness was expected to testify. Smith v. State, 244 Ga. 814, 262 S.E.2d 116 (1979) (decided under former Code 1933, § 38-1703).

Trial court had discretion in permitting, upon request, counsel for one of the parties an opportunity to converse with a witness in the case for limited purposes, and that discretion will not be controlled unless abused. Smith v. State, 244 Ga. 814, 262 S.E.2d 116 (1979) (decided under former Code 1933, § 38-1703).

Orderly presentation of evidence was a proper reason for an exception to the rule of sequestration. Hardy v. State, 245 Ga. 673, 266 S.E.2d 489 (1980) (decided under former Code 1933, § 38-1703).

When the prosecutor stated that the prosecutor needed a witness for presentation of a case and that to require the witness to testify first would interfere with the orderly presentation of a case, the trial judge had discretion to except such witness from the rule of sequestration. Blalock v. State, 250 Ga. 441, 298 S.E.2d 477 (1983) (decided under former O.C.G.A. § 24-9-61); Fowler v. State, 179 Ga. App. 492, 347 S.E.2d 322 (1986); Denny v. State, 210 Ga. App. 406, 436 S.E.2d 526 (1993) (decided under former O.C.G.A. § 24-9-61);(decided under former O.C.G.A. § 24-9-61).

Former O.C.G.A. § 24-9-61 did not prohibit the state from stating the case and allegations in front of the witnesses prior to sequestration. Brewer v. State, 162 Ga. App. 228, 291 S.E.2d 87 (1982) (decided under former O.C.G.A. § 24-9-61).

Orderly presentation of evidence is a proper reason for permitting an unsequestered witness, who is assisting the prosecutor, to testify after other witnesses. Croom v. State, 165 Ga. App. 676, 302 S.E.2d 598 (1983) (decided under former O.C.G.A. § 24-9-61).

Based upon a showing by the state of some need not to call the unsequestered witness first, the trial court was authorized, in the court's discretion, to allow the unsequestered witness to be called to the stand after other witnesses have testified. Law v. State, 165 Ga. App. 687, 302 S.E.2d 570, aff'd, 251 Ga. 525, 307 S.E.2d 904 (1983) (decided under former O.C.G.A. § 24-9-61).

It was within the discretion of the trial court to make exceptions in regard to the sequestration of nonparty witnesses, and unless that discretion was abused it will not be reversed. Batten v. Batten, 182 Ga. App. 442, 356 S.E.2d 228 (1987) (decided under former O.C.G.A. § 24-9-61).

- Proper procedure in situations when the former statute had been invoked and a party needed the assistance of a witness during the prosecution of a case was to specifically request that the trial judge made an exception to the rule at the commencement of the evidence. Brown v. State, 150 Ga. App. 116, 257 S.E.2d 25 (1979) (decided under former Code 1933, § 38-1703); McCranie v. State, 151 Ga. App. 871, 261 S.E.2d 779 (1979);(decided under former Code 1933, § 38-1703).

- It was within the trial court's discretion to make exceptions to the sequestration rule, and unless that discretion had been abused the court's decision will not be reversed on appeal. Jones v. State, 75 Ga. App. 610, 44 S.E.2d 174 (1947) (decided under former Code 1933, § 38-1703); Dye v. State, 220 Ga. 113, 137 S.E.2d 465 (1964); Cooper v. Butler, 223 Ga. 797, 158 S.E.2d 244 (1967) (decided under former Code 1933, § 38-1703); Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975); Parham v. State, 135 Ga. App. 315, 217 S.E.2d 493 (1975) (decided under former Code 1933, § 38-1703); Disby v. State, 238 Ga. 178, 231 S.E.2d 763 (1977); Lloyd v. State, 146 Ga. App. 584, 246 S.E.2d 697 (1978) (decided under former Code 1933, § 38-1703); Davis v. State, 242 Ga. 901, 252 S.E.2d 443 (1979); Horton v. Wayne County, 243 Ga. 789, 256 S.E.2d 775 (1979) (decided under former Code 1933, § 38-1703); Ratliff v. State, 150 Ga. App. 695, 258 S.E.2d 324 (1979); McCranie v. State, 151 Ga. App. 871, 261 S.E.2d 779 (1979) (decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703).

- When a witness had been excepted from the sequestration rule, that witness should be presented first or explanation made to the trial court why the witness cannot be called first. Jones v. State, 75 Ga. App. 610, 44 S.E.2d 174 (1947) (decided under former Code 1933, § 38-1703); McCranie v. State, 151 Ga. App. 871, 261 S.E.2d 779 (1970); Walker v. State, 132 Ga. App. 274, 208 S.E.2d 5 (1974) (decided under former Code 1933, § 38-1703); Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975); Parham v. State, 135 Ga. App. 315, 217 S.E.2d 493 (1975) (decided under former Code 1933, § 38-1703); Pless v. State, 142 Ga. App. 594, 236 S.E.2d 842 (1977); James v. State, 143 Ga. App. 696, 240 S.E.2d 149 (1977) (decided under former Code 1933, § 38-1703); Whitfield v. State, 143 Ga. App. 779, 240 S.E.2d 189 (1977); Lloyd v. State, 146 Ga. App. 584, 246 S.E.2d 697 (1978) (decided under former Code 1933, § 38-1703); Davis v. State, 242 Ga. 901, 252 S.E.2d 443 (1979); Brown v. State, 150 Ga. App. 116, 257 S.E.2d 25 (1979) (decided under former Code 1933, § 38-1703); Ratliff v. State, 150 Ga. App. 695, 258 S.E.2d 324 (1979); Simonton v. State, 151 Ga. App. 431, 260 S.E.2d 487 (1979) (decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703).

Court may allow witness for prosecution to remain in courtroom in violation of the sequestration rule, if the prosecuting attorney stated that the witness was needed to aid in the presentation of the case and that in the orderly presentation of the case cannot testify first. Sweat v. State, 203 Ga. App. 290, 416 S.E.2d 845 (1992) (decided under former O.C.G.A. § 24-9-61).

Trial court did not abuse the court's discretion in defendant's criminal trial when the court denied defendant's sequestration request regarding one of the police officers involved in the arrest as the state's request that the officer stay in the court to assist was deemed reasonable given that defendant's trial counsel had the assistance of two other attorneys as well as a recent law graduate. Warren v. State, 281 Ga. App. 490, 636 S.E.2d 671 (2006) (decided under former O.C.G.A. § 24-9-61).

State's lead detective was properly excepted from the rule of sequestration as the state adequately demonstrated that the state needed the presence of the primary investigator in the courtroom for an orderly presentation of the case. Morgan v. State, 287 Ga. App. 569, 651 S.E.2d 833 (2007) (decided under former O.C.G.A. § 24-9-61).

Prosecutor requested that the chief investigating detective be excepted from the rule of sequestration to permit the detective to assist the prosecutor in presenting the case because of the detective's familiarity with the facts and the crime scene. In light of the prosecutor's request, allowing the detective to remain in the courtroom during the presentation of the state's case was not an abuse of discretion. Hollis v. State, 295 Ga. App. 529, 672 S.E.2d 487 (2009) (decided under former O.C.G.A. § 24-9-61).

Trial court did not abuse the court's discretion in allowing the lead investigative officer to stay in the courtroom throughout a defendant's marijuana possession trial, although the defendant invoked sequestration, because the prosecutor designated the officer as the state's prosecuting witness. Moreover, defense counsel made no objection at the time of the designation. Sirmans v. State, 301 Ga. App. 756, 688 S.E.2d 669 (2009) (decided under former O.C.G.A. § 24-9-61).

- When lead investigator testified first and was then permitted to remain in the courtroom during the remainder of the trial, and was twice recalled to the stand after having heard the testimony of the other witnesses, it was not an abuse of the trial court's discretion to permit the detective's testimony. Dunbar v. State, 209 Ga. App. 97, 432 S.E.2d 829 (1993) (decided under former O.C.G.A. § 24-9-61); Mitchell v. State, 222 Ga. App. 878, 476 S.E.2d 604 (1996);(decided under former O.C.G.A. § 24-9-61).

In a prosecution for child molestation, it was not an abuse of discretion to allow the mother of the victim to remain in the courtroom after the victim became upset while testifying. Peters v. State, 224 Ga. App. 837, 481 S.E.2d 898 (1997) (decided under former O.C.G.A. § 24-9-61).

- When a party to an action intended to be a witness personally and the court directs that the party's witnesses be separately examined, it was the proper rule, unless there be special reasons to the contrary, that such party should first be examined in the absence of the party's other witnesses, in order that the party may thereby be present, as was the party's right, during the whole trial of the party's case. Tift v. Jones, 52 Ga. 538 (1874) (decided under former Code 1873, § 3863); Georgia R.R. & Banking Co. v. Tice, 124 Ga. 459, 52 S.E. 916, 4 Ann. Cas. 200 (1905); Massey v. State, 220 Ga. 883, 142 S.E.2d 832 (1965) (decided under former Civil Code 1895, § 5280); Cochran v. State, 151 Ga. App. 436, 260 S.E.2d 391 (1979);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703).

In juvenile court trials the parents are parties and therefore not subject to sequestration. D.C.A. v. State, 135 Ga. App. 234, 217 S.E.2d 470 (1975) (decided under former Code 1933, § 38-1703).

When the plaintiff elects to call the plaintiff's own witnesses before testifying personally, the trial court has broad discretion to require either that the plaintiff testify prior to presenting the testimony of plaintiff's witnesses, or that the plaintiff be excluded from the courtroom prior to the time plaintiff chooses to testify. Barber v. Barber, 257 Ga. 488, 360 S.E.2d 574 (1987) (decided under former O.C.G.A. § 24-9-61).

- It is within the discretion of the trial judge to permit a witness to remain in the courtroom to assist either party and the action of the court in this respect will not be reviewed. Jones v. State, 75 Ga. App. 610, 44 S.E.2d 174 (1947) (decided under former Code 1933, § 38-1703); Justice v. State, 213 Ga. 166, 97 S.E.2d 569 (1957); Dye v. State, 220 Ga. 113, 137 S.E.2d 465 (1964) (decided under former Code 1933, § 38-1703); Ratliff v. State, 150 Ga. App. 695, 258 S.E.2d 324 (1970); Stuart v. State, 123 Ga. App. 311, 180 S.E.2d 581 (1971) (decided under former Code 1933, § 38-1703); Walker v. State, 132 Ga. App. 274, 208 S.E.2d 5 (1974); Parham v. State, 135 Ga. App. 315, 217 S.E.2d 493 (1975) (decided under former Code 1933, § 38-1703); James v. State, 143 Ga. App. 696, 240 S.E.2d 149 (1977);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703).

- Court may permit witnesses to remain in the courtroom to advise the opposite party, but the record must show that such was done for that purpose. Poultryland, Inc. v. Anderson, 200 Ga. 549, 37 S.E.2d 785 (1946) (decided under former Code 1933, § 38-1703); Montos v. State, 212 Ga. 764, 95 S.E.2d 792 (1956), overruled on other grounds, White v. State, 273 Ga. 787, 546 S.E.2d 514 (2001); Smith v. State, 215 Ga. 51, 108 S.E.2d 688 (1959) (decided under former Code 1933, § 38-1703); Spurlin v. State, 222 Ga. 179, 149 S.E.2d 315 (1966); Kendrick v. State, 123 Ga. App. 785, 182 S.E.2d 525 (1971) (decided under former Code 1933, § 38-1703); Childers v. State, 130 Ga. App. 555, 203 S.E.2d 874 (1974);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703).

- When the rule requiring sequestration is invoked and one of the witnesses is an officer of the court the judge may allow that witness to remain in the courtroom so as not to impair the efficiency of the court. Hoxie v. State, 114 Ga. 19, 39 S.E. 944 (1901) (decided under former Penal Code 1895, § 1017); Askew v. State, 3 Ga. App. 79, 59 S.E. 311 (1907); Poultryland, Inc. v. Anderson, 200 Ga. 549, 37 S.E.2d 785 (1946) (decided under former Penal Code 1895, § 1017); Montos v. State, 212 Ga. 764, 95 S.E.2d 792 (1956), overruled on other grounds, White v. State, 273 Ga. 787, 546 S.E.2d 514 (2001); Cornett v. State, 218 Ga. 405, 128 S.E.2d 317 (1962) (decided under former Code 1933, § 38-1703); Head v. State, 111 Ga. App. 14, 140 S.E.2d 291 (1965); Stuart v. State, 123 Ga. App. 311, 180 S.E.2d 581 (1971) (decided under former Code 1933, § 38-1703); Kendrick v. State, 123 Ga. App. 785, 182 S.E.2d 525 (1971); Bush v. State, 129 Ga. App. 160, 199 S.E.2d 121 (1973) (decided under former Code 1933, § 38-1703); Childers v. State, 130 Ga. App. 555, 203 S.E.2d 874 (1974); James v. State, 143 Ga. App. 696, 240 S.E.2d 149 (1977) (decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703).

- Court may permit the prosecutor in the indictment to remain at the state's counsel table to assist in the trial of the case, even though the prosecutor may be used as a witness. Norman v. State, 121 Ga. App. 753, 175 S.E.2d 119 (1970), cert. denied, 401 U.S. 959, 91 S. Ct. 981, 28 L. Ed. 2d 240 (1971) (decided under former Code 1933, § 38-1703); Howard v. State, 144 Ga. App. 31, 240 S.E.2d 589 (1977); McCranie v. State, 151 Ga. App. 871, 261 S.E.2d 779 (1979) (decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703).

One long-standing exception to the sequestration rule exists in criminal cases for the prosecutor, that is, the one who signs the indictment bringing the charges. The prosecutor may testify as a witness after other witnesses for the state have testified. Chastain v. State, 255 Ga. 723, 342 S.E.2d 678 (1986) (decided under former O.C.G.A. § 24-9-61); Anderson v. State, 200 Ga. App. 29, 406 S.E.2d 791 (1991); Jackson v. State, 222 Ga. App. 843, 476 S.E.2d 615 (1996) (decided under former O.C.G.A. § 24-9-61);(decided under former O.C.G.A. § 24-9-61).

- It is within the trial court's discretion to allow the prosecuting witness to remain in the courtroom as an exception to the sequestration rule. Jefferson v. State, 159 Ga. App. 740, 285 S.E.2d 213 (1981) (decided under former Code 1933, § 38-1703).

It is within the trial court's discretion to allow a prosecuting witness to remain in the courtroom as an exception to the sequestration rule. Law v. State, 165 Ga. App. 687, 302 S.E.2d 570, aff'd, 251 Ga. 525, 307 S.E.2d 904 (1983) (decided under former O.C.G.A. § 24-9-61).

Trial court may, in the court's discretion permit the prosecutor in the indictment to remain in the courtroom to assist in the trial of the case, even though the prosecutor may be used as a witness. Edwards v. State, 171 Ga. App. 264, 319 S.E.2d 101 (1984) (decided under former O.C.G.A. § 24-9-61).

It was within the trial court's discretion to allow a police officer who was the nominal prosecutor to remain in the courtroom based on the district attorney's statement that the officer's presence was necessary for the orderly administration of the state's case. Davis v. State, 239 Ga. App. 318, 521 S.E.2d 368 (1999), rev'd on other grounds, 273 Ga. 14, 537 S.E.2d 663 (2000) (decided under former O.C.G.A. § 24-9-61).

- Because the state's victim assistance coordinator was not a witness subject to sequestration, the trial court did not err in allowing the coordinator to remain in the courtroom during the trial. Clements v. State, 279 Ga. App. 773, 632 S.E.2d 702 (2006) (decided under former O.C.G.A. § 24-9-61).

- Allowing the state to reopen the state's case so a robbery victim could make an in-court identification based on the sound of defendant's voice did not violate the rule of sequestration since the victim was not recalled in order to further or alter the substance of defendant's own recounting of the incident in light of the substance of defendant's testimony but was recalled merely to testify about the similarity of the sound of defendant's voice to the sound of the gunman's voice during commission of the crime. Stith v. State, 201 Ga. App. 621, 411 S.E.2d 532 (1991) (decided under former O.C.G.A. § 24-9-61).

- Trial court's excepting a state's witness from the rule of sequestration and, having done so, not requiring the witness to testify first was not an abuse of discretion, since the witness testified only about post-arrest events and not about the crime itself. Mathews v. State, 183 Ga. App. 224, 358 S.E.2d 639 (1987) (decided under former O.C.G.A. § 24-9-61).

- Appellate courts have found no abuse of discretion when the trial court permits the investigating officer to remain in the courtroom to assist in the trial of the case and testify after other state witnesses have testified. Pless v. State, 142 Ga. App. 594, 236 S.E.2d 842 (1977) (decided under former Code 1933, § 38-1703); Lloyd v. State, 146 Ga. App. 584, 246 S.E.2d 697 (1978); Davis v. State, 242 Ga. 901, 252 S.E.2d 443 (1979) (decided under former Code 1933, § 38-1703); Brown v. State, 150 Ga. App. 116, 257 S.E.2d 25 (1979); Simonton v. State, 151 Ga. App. 431, 260 S.E.2d 487 (1979) (decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703).

When a witness police detective was permitted to remain in the courtroom to assist the prosecutor in spite of a sequestration order, and when during the course of the trial the prosecutor sent the detective to telephone another police officer witness whose presence was needed, the rule of sequestration was not violated. McGarl v. State, 165 Ga. App. 323, 301 S.E.2d 58 (1983) (decided under former O.C.G.A. § 24-9-61).

When defendants contended that it was improper to exempt from the sequestration order two prospective prosecution witnesses, the county sheriff and the police officer who investigated the case, it was held that these exceptions were not an abuse of the court's discretion as the sheriff never testified and the investigator was shown to be needed to assist the district attorney in the trial of the case, an approved exception. Welch v. State, 251 Ga. 197, 304 S.E.2d 391 (1983) (decided under former O.C.G.A. § 24-9-61).

Trial court may permit the investigating officer to remain at the counsel table and to testify at trial. Edwards v. State, 171 Ga. App. 264, 319 S.E.2d 101 (1984) (decided under former O.C.G.A. § 24-9-61).

Trial court is vested with the discretion to make an exception to the sequestration rule for the chief investigating officer and the discretion will not be reversed on appeal unless abused. Norman v. State, 255 Ga. 313, 338 S.E.2d 249 (1986); Watson v. State, 222 Ga. App. 814, 476 S.E.2d 96 (1996) (decided under former O.C.G.A. § 24-9-61).

Trial court did not abuse the court's discretion in allowing an investigator to sit at counsel table with the prosecutor after the rule of sequestration had been invoked, even though the investigator was the last witness to testify for the state, since the prosecutor stated the prosecutor needed the investigator's assistance during the trial and that to compel the investigator to testify first would require the state to present the state's case out of sequence. Mullen v. State, 197 Ga. App. 26, 397 S.E.2d 487 (1990) (decided under former O.C.G.A. § 24-9-61).

Trial court did not err in allowing an investigating officer to sit with the state's attorney during a trial as an exception to the rule of sequestration or in failing to require the officer to testify first as the trial court expressly recognized that the court was vested with discretion to do so; moreover, the investigating officer's testimony was primarily directed at the playing of the videotape interview with the child victim. Howse v. State, 273 Ga. App. 252, 614 S.E.2d 869 (2005) (decided under former O.C.G.A. § 24-9-61).

Despite the defendant's contrary claims on appeal, the trial court properly allowed the lead investigating officer to remain in the courtroom during the presentation of evidence, based on the prosecutor's statement that the officer was necessary to assist in the orderly presentation of the case. Stafford v. State, 288 Ga. App. 733, 655 S.E.2d 221 (2007), cert. denied, No. S08C0654, 2008 Ga. LEXIS 489 (Ga. 2008) (decided under former O.C.G.A. § 24-9-61).

Trial court did not err in permitting the state to have the investigating agent from the Georgia Bureau of Investigation remain in the courtroom at counsel table during the entire trial, thereby violating the rule of sequestration under former O.C.G.A. § 24-9-61. Since the state maintained that the state needed the presence of the primary investigator for the orderly presentation of the case, excepting the investigator from the rule of sequestration was within the trial court's discretion. Holloman v. State, 291 Ga. 338, 729 S.E.2d 344 (2012) (decided under former O.C.G.A. § 24-9-61).

Trial court's decision to allow the primary investigator to sit at the prosecution table during trial did not violate the rule of sequestration as the prosecutor explained that the investigator was needed to assist in the orderly presentation of the case. Moore v. State, 297 Ga. 773, 778 S.E.2d 210 (2015).

- Since the sheriff is an officer of the court and may be excepted from the rule of sequestration on the court's own initiative, it is not necessary to evaluate the state's asserted need for the assistance of the sheriff, as a demonstration of such was unnecessary to the court's exercise of discretion. Childs v. State, 257 Ga. 243, 357 S.E.2d 48, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406 (1987) (decided under former O.C.G.A. § 24-9-61).

- When it was necessary to offer a considerable body of technical information relating to the alleged eavesdropping device for jury consideration, and the solicitor (now district attorney) stated in the solicitor's place that the solicitor needed to confer with an expert in this field during the trial, it was not an abuse of discretion to allow such witness to remain in the courtroom after a motion for the sequestration of witnesses had in other respects been granted. Kendrick v. State, 123 Ga. App. 785, 182 S.E.2d 525 (1971) (decided under former Code 1933, § 38-1703).

Trial court did not err by refusing to allow defendant's accident reconstruction expert to hear the testimony of other witnesses, since the rule of sequestration was invoked, in view of the court's conclusion that granting the request would give the defense an unfair advantage. Bartell v. State, 181 Ga. App. 148, 351 S.E.2d 495 (1986) (decided under former O.C.G.A. § 24-9-61).

An expert is not automatically excepted from the rule on sequestration because ordinarily it is not necessary for the expert to hear the testimony of other witnesses in order to form an opinion. Bean v. Landers, 215 Ga. App. 366, 450 S.E.2d 699 (1994) (decided under former O.C.G.A. § 24-9-61).

- City or county police officer is not an officer of the court so as to merit an exception to the rule of sequestration as such. Head v. State, 111 Ga. App. 14, 140 S.E.2d 291 (1965) (decided under former Code 1933, § 38-1703); Bush v. State, 129 Ga. App. 160, 199 S.E.2d 121 (1973);(decided under former Code 1933, § 38-1703).

- In the absence of any such showing or statement of the solicitor general (now district attorney) and where the record is silent as to any reason a rape victim should be excepted from the rule of sequestration and allowed to remain in the courtroom, none will be assumed to exist. Massey v. State, 220 Ga. 883, 142 S.E.2d 832 (1965), cert. denied, 385 U.S. 36, 87 S. Ct. 241, 17 L. Ed. 2d 36 (1966) (decided under former Code 1933, § 38-1703).

Former O.C.G.A. § 24-9-61 did not prohibit discussions between attorney to the case and a prospective witness, at least so long as the attorney talked to the witness separately from the other witnesses and did not inform the witness of previous testimony. Ross v. State, 254 Ga. 22, 326 S.E.2d 194, cert. denied, 472 U.S. 1022, 105 S. Ct. 3490, 87 L. Ed. 2d 623 (1985) (decided under former O.C.G.A. § 24-9-61).

Testimony of Witnesses Not Sequestered

Liberal interpretation.

- Legislative statement that "no mere irregularity shall exclude the witness" imports that a liberal interpretation should be given when applying the former provisions. Pless v. State, 142 Ga. App. 594, 236 S.E.2d 842 (1977) (decided under former Code 1933, § 38-1703).

- When a sequestration order is violated, there is a presumption of injury to the rights of a party unless the contrary plainly appears. Hall v. Hobbs, 107 Ga. App. 46, 129 S.E.2d 209 (1962) (decided under former Code 1933, § 38-1703).

- When a witness was competent to testify, and the testimony was relevant, material, and necessary to an adequate defense of the charges against the defendant; only the witness's credibility as a witness, not the witness's competence, is affected by the witness's disregard of a sequestration order. Rooks v. State, 65 Ga. 330 (1880) (decided under former Code 1873, § 3863); Lassiter v. State, 67 Ga. 739 (1881); Bone v. State, 86 Ga. 108, 12 S.E. 205 (1890) (decided under former Code 1873, § 3863); May v. State, 90 Ga. 793, 17 S.E. 108 (1893); Hoxie v. State, 114 Ga. 19, 39 S.E. 944 (1901) (decided under former Code 1873, § 3863); McWhorter v. State, 118 Ga. 55, 44 S.E. 873 (1903); Phillips v. State, 121 Ga. 358, 49 S.E. 290 (1904) (decided under former Code 1873, § 3863); Davis v. State, 120 Ga. 843, 48 S.E. 305 (1904); Green v. State, 125 Ga. 742, 54 S.E. 724 (1906) (decided under former Penal Code 1895, § 1017); Carter v. State, 2 Ga. App. 254, 58 S.E. 532 (1907); Thomas v. State, 7 Ga. App. 615, 67 S.E. 707 (1910) (decided under former Penal Code 1895, § 1017); Whigby v. Burnham, 135 Ga. 584, 69 S.E. 1114 (1911); Benton v. State, 9 Ga. App. 291, 71 S.E. 8 (1911) (decided under former Penal Code 1895, § 1017); Higdon v. State, 46 Ga. App. 346, 167 S.E. 782 (1933); Edwards v. State, 55 Ga. App. 187, 189 S.E. 678 (1937) (decided under former Penal Code 1895, § 1017); McCartney v. McCartney, 217 Ga. 200, 121 S.E.2d 785 (1961); Hall v. Hobbs, 107 Ga. App. 46, 129 S.E.2d 209 (1962) (decided under former Penal Code 1895, § 1017); Hall v. Hall, 220 Ga. 677, 141 S.E.2d 400 (1965); Shelton v. State, 111 Ga. App. 351, 141 S.E.2d 776 (decided under former Penal Code 1895, § 1017); 382 U.S. 917, 86 S. Ct. 291, 15 L. Ed. 2d 232 (1965); Pippins v. State, 224 Ga. 462, 162 S.E.2d 338 (1968) (decided under former Penal Code 1895, § 1017); Kendrick v. State, 123 Ga. App. 785, 182 S.E.2d 525 (1971); Rozier v. State, 124 Ga. App. 481, 184 S.E.2d 203 (1971) (decided under former Penal Code 1910, § 1043); Baker v. State, 131 Ga. App. 48, 205 S.E.2d 79 (1974); Pearley v. State, 235 Ga. 276, 219 S.E.2d 404 (1975) (decided under former Penal Code 1910, § 1043); Still v. State, 142 Ga. App. 312, 235 S.E.2d 737 (1977); Watts v. State, 239 Ga. 725, 238 S.E.2d 894 (1977) (decided under former Penal Code 1910, § 1043); Banks v. State, 144 Ga. App. 471, 241 S.E.2d 587 (1978); Bryan v. State, 148 Ga. App. 428, 251 S.E.2d 338 (1978) (decided under former Code 1933, § 38-1703); Dudley v. State, 148 Ga. App. 560, 251 S.E.2d 815 (1978); International Ass'n of Bridge Ironworkers, Local 387 v. Moore, 149 Ga. App. 431, 254 S.E.2d 438 (1979) (decided under former Code 1933, § 38-1703); Smith v. State, 244 Ga. 814, 262 S.E.2d 116 (1979); Stroming v. State, 152 Ga. App. 129, 262 S.E.2d 193 (1979) (decided under former Code 1933, § 38-1703); Wright v. State, 246 Ga. 53, 268 S.E.2d 645 (1980); Jordan v. State, 247 Ga. 328, 276 S.E.2d 224 (1981) (decided under former Code 1933, § 38-1703); Blanchard v. State, 247 Ga. 415, 276 S.E.2d 593 (1981); Harper v. State, 249 Ga. 519, 292 S.E.2d 389 (1982), cert. denied,(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703).

When the rule of sequestration is violated, the violation goes to the credibility rather than the admissibility of the witness's testimony. Johnson v. State, 258 Ga. 856, 376 S.E.2d 356 (1989) (decided under former O.C.G.A. § 24-9-61); Lee v. State, 214 Ga. App. 164, 447 S.E.2d 323 (1994);(decided under former O.C.G.A. § 24-9-61).

Trial court did not abuse the court's discretion when the court permitted witnesses to testify after violating a sequestration order as the court gave a curative charge to the jury, informing the jury that the jury could consider the violation in assessing credibility. Mule v. State, 355 Ga. App. 239, 843 S.E.2d 894 (2020).

In criminal cases, the violation of the rule of sequestration of any witness either for the defense or for the prosecution goes to the credibility rather than to the admissibility of the witness's testimony. O'Kelley v. State, 175 Ga. App. 503, 333 S.E.2d 838 (1985) (decided under former O.C.G.A. § 24-9-61); State v. Marshall, 195 Ga. App. 535, 394 S.E.2d 379 (1990); Armstrong v. State, 209 Ga. App. 796, 434 S.E.2d 560 (1993), overruled on other grounds, Weathers v. State, 202 Ga. App. 849, 415 S.E.2d 690 (decided under former O.C.G.A. § 24-9-61); 202 Ga. App. 907, 415 S.E.2d 690 (1992);cert. denied,(decided under former O.C.G.A. § 24-9-61).

Violation of sequestration does not render the offending witness incompetent to testify; defendant's recourse is to seek instructions from the court informing the jury that the violation of the rule should be considered in determining the weight and credit to be given to the testimony of the witness. Bradford v. State, 182 Ga. App. 337, 355 S.E.2d 735 (1987) (decided under former O.C.G.A. § 24-9-61).

Trial court did not err by refusing to exclude the testimony of a state's witness for the witness's alleged violation of the rule of sequestration, as exclusion of testimony simply is not an appropriate remedy for a violation of the rule. Jefferson v. State, 256 Ga. 821, 353 S.E.2d 468, cert. denied, 484 U.S. 872, 108 S. Ct. 203, 98 L. Ed. 2d 154 (1987) (decided under former O.C.G.A. § 24-9-61).

Trial court did not err in denying defendant's motion for mistrial after the court learned that witnesses in the witness room had been discussing testimony with each other in violation of the rule of sequestration, since the only witness in the room who had not yet testified when these conversations allegedly occurred was a deputy who did not personally observe the crime but merely took the defendant into custody. Hicks v. State, 256 Ga. 715, 352 S.E.2d 762, cert. denied, 482 U.S. 931, 107 S. Ct. 3220, 96 L. Ed. 2d 706 (1987) (decided under former O.C.G.A. § 24-9-61).

Trial court did not abuse the court's discretion in allowing the state to present a witness in violation of the sequestration rule as defense counsel's cross-examination cast doubt upon the witness's testimony and the jury knew that the witness was present during previous testimony. Rakestrau v. State, 278 Ga. 872, 608 S.E.2d 216 (2005) (decided under former O.C.G.A. § 24-9-61).

Party's remedy for a violation of the sequestration rule is to request the trial court to charge the jury that the violation should be considered in determining the weight and credit to be given the testimony of the witness. Johnson v. State, 258 Ga. 856, 376 S.E.2d 356 (1989) (decided under former O.C.G.A. § 24-9-61).

- Generally, the testimony of a witness who has violated the rule of sequestration is admissible although the witness may be guilty of contempt. Stephen W. Brown Radiology Assocs. v. Gowers, 157 Ga. App. 770, 278 S.E.2d 653 (1981) (decided under former Code 1933, § 38-1703).

Even if the rule of sequestration has been violated, this does not automatically disqualify the witness or render the witness incompetent; the trial court is vested with broad discretion in this regard. Stancil v. State, 158 Ga. App. 147, 279 S.E.2d 457 (1981) (decided under former O.C.G.A. § 24-9-61); Hayes v. State, 175 Ga. App. 135, 332 S.E.2d 917 (1985);(decided under former O.C.G.A. § 24-9-61).

Because a witness did not expect to be called as a witness when the witness was present for the testimony of other witnesses, it seemed unlikely that the witness would have been observing their testimony with an eye toward the witness's own testimony, and the trial court did not abuse the court's discretion when the court allowed the witness to testify even though the witness violated the rule of sequestration. Franklin v. State, 306 Ga. 872, 834 S.E.2d 53 (2019).

- Witnesses who have not been called and put under the rule may testify in rebuttal of a prisoner's statement if the court is satisfied that the ends of justice require such testimony. Metropolitan St. R.R. v. Johnson, 90 Ga. 500, 16 S.E. 49 (1892) (decided under former Code 1882, § 3863); Keiley v. Bristol, 30 Ga. App. 725, 119 S.E. 334; 30 Ga. App. 801 (1923), cert. denied, Edwards v. State, 55 Ga. App. 187, 189 S.E. 678 (1937) (decided under former Civil Code 1910, § 5869); Ricks v. State, 209 Ga. 2, 70 S.E.2d 373 (1952); Dye v. State, 220 Ga. 113, 137 S.E.2d 465 (1964) (decided under former Code 1933, § 38-1703); Shelton v. State, 220 Ga. 610, 140 S.E.2d 839; 111 Ga. App. 351, 141 S.E.2d 776 (decided under former Code 1933, § 38-1703); 382 U.S. 917, 86 S. Ct. 291, 15 L. Ed. 2d 232 (1965); Pippins v. State, 224 Ga. 462, 162 S.E.2d 338 (1968) (decided under former Code 1933, § 38-1703); Stuart v. State, 123 Ga. App. 311, 180 S.E.2d 581 (1971); Still v. State, 142 Ga. App. 312, 235 S.E.2d 737 (1977), answer conformed to, Banks v. State, 144 Ga. App. 471, 241 S.E.2d 587 (1978), cert. denied, Stroming v. State, 152 Ga. App. 129, 262 S.E.2d 193 (1979) (decided under former Code 1933, § 38-1703); Jordan v. State, 247 Ga. 328, 276 S.E.2d 224 (1981); Blanchard v. State, 247 Ga. 415, 276 S.E.2d 593 (1981) (decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703).

After the trial court conducted an evidentiary hearing out of the presence of the jury before permitting a witness to testify as a rebuttal witness, and although the witness had not been present in the courtroom prior to the time at which the witness was called to testify, the witness admitted to having conversations with fellow officers who had already testified or been present during testimony, there was no abuse of discretion in permitting the witness to testify. Gibby v. State, 166 Ga. App. 413, 304 S.E.2d 518 (1983) (decided under former O.C.G.A. § 24-9-61).

When the assistant district attorney tried a case in another courtroom and was not present when the rule of sequestration was invoked, the fact that the assistant district attorney entered the courtroom and sat at the prosecution table, and was subsequently called to testify did not require the trial court to prohibit the assistant district attorney's testimony. Cheeks v. State, 203 Ga. App. 47, 416 S.E.2d 336, cert. denied, 203 Ga. App. 905, 416 S.E.2d 336 (1992) (decided under former O.C.G.A. § 24-9-61).

- Based upon a showing by the state of some need not to call the unsequestered witness first, the trial court is authorized, in the court's discretion, to allow the unsequestered witness to be called to the stand after other witnesses have testified. Jefferson v. State, 159 Ga. App. 740, 285 S.E.2d 213 (1981) (decided under former Code 1933, § 38-1703).

- Trial court did not err in allowing the owner of a burglarized house to testify without a cautionary instruction to the jury because the owner had violated the rule of sequestration by being present in court when the arresting officer testified; defendant did not show that the defendant insisted upon the rule until after the arresting officer had begun to testify, at which point it appeared the witnesses complied. Johnson v. State, 275 Ga. App. 21, 619 S.E.2d 731 (2005) (decided under former O.C.G.A. § 24-9-61).

- Exclusion of testimony offered by a witness who has remained in the courtroom after grant of a sequestration order is within the discretion of the trial court. May v. State, 90 Ga. 793, 17 S.E. 108 (1893) (decided under former Code 1882, § 3863); Groover v. Simmons, 161 Ga. 93, 129 S.E. 778 (1925); Star Jewelers, Inc. v. Durham, 147 Ga. App. 68, 248 S.E.2d 51 (1978) (decided under former Penal Code 1910, § 1043); Dowdy v. State, 154 Ga. App. 700, 269 S.E.2d 530 (1980);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703).

Disregard of a sequestration order may subject the offender to punishment for contempt. Hoxie v. State, 114 Ga. 19, 39 S.E. 944 (1901) (decided under former Penal Code 1895, § 1017); McWhorter v. State, 118 Ga. 55, 44 S.E. 873 (1903); Phillips v. State, 121 Ga. 358, 49 S.E. 290 (1904) (decided under former Penal Code 1895, § 1017); Rooks v. State, 65 Ga. 330 (1880); Lassiter v. State, 67 Ga. 739 (1881) (decided under former Penal Code 1895, § 1017). Bone v. State, 86 Ga. 108, 12 S.E. 205 (1890) See also Green v. State, 125 Ga. 742, 54 S.E. 724 (1906) (decided under former Code 1873, § 3863); Thomas v. State, 7 Ga. App. 615, 67 S.E. 707 (1919); Higdon v. State, 46 Ga. App. 346, 167 S.E. 782 (1933) (decided under former Code 1873, § 3863); Edwards v. State, 55 Ga. App. 187, 189 S.E. 678 (1937); McCartney v. McCartney, 217 Ga. 200, 121 S.E.2d 785 (1961) (decided under former Code 1882, § 3863); Rozier v. State, 124 Ga. App. 481, 184 S.E.2d 203 (1971); Baker v. State, 131 Ga. App. 48, 205 S.E.2d 79 (1974) (decided under former Penal Code 1895, § 1017); Pearley v. State, 235 Ga. 276, 219 S.E.2d 404 (1975); Watts v. State, 239 Ga. 725, 238 S.E.2d 894 (1977) (decided under former Penal Code 1910, § 1043); Bryan v. State, 148 Ga. App. 428, 251 S.E.2d 338 (1978); International Ass'n of Bridge Ironworkers, Local 387 v. Moore, 149 Ga. App. 431, 254 S.E.2d 438 (1979) (decided under former Penal Code 1910, § 1043);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703);(decided under former Code 1933, § 38-1703).

- By permitting persons actively interested in the result of the case to intermingle with witnesses who have been ordered to be sequestered there is a probability that their testimony may be influenced and molded to the prejudice of either of the parties in the cause. Hightower v. State, 14 Ga. App. 246, 80 S.E. 684 (1914) (decided under former Penal Code 1910, § 1043).

- Sequestered witness is not disqualified for reintroduction even though the witness may have heard other witnesses after testifying. Lyman v. State, 69 Ga. 404 (1882) (decided under former Code 1873, § 3863); Taylor v. State, 132 Ga. 235, 63 S.E. 1116 (1909);(decided under former Penal Code 1895, § 1017).

Since state's witnesses to whom sheriff talked were witnesses who had already testified, and, the sheriff, who was a witness, was allowed to stay in the courtroom by consent, and the witnesses involved for the state were not called to the stand again, there was no violation of the sequestration rule. Talley v. State, 2 Ga. App. 395, 58 S.E. 667 (1907) (decided under former Penal Code 1895, § 1017). Heywood v. State, 12 Ga. App. 643, 77 S.E. 1130 (1913) See also Hudgins v. State, 13 Ga. App. 489, 79 S.E. 367 (1913) (decided under former Penal Code 1910, § 1043); Finley v. State, 101 Ga. App. 61, 113 S.E.2d 144 (1960);(decided under former Penal Code 1910, § 1043);(decided under former Code 1933, § 38-1703).

Sequestered witness is not disqualified for reintroduction even though the witness may have heard other witnesses after testifying. Lyman v. State, 69 Ga. 404 (1882) (decided under former Code 1873, § 3863); Taylor v. State, 132 Ga. 235, 63 S.E. 1116 (1909);(decided under former Penal Code 1910, § 1043).

- Application of the former O.C.G.A. § 24-9-61 sequestration rule was discretionary, and the trial court did not err by allowing the defendant's wife to sit at the defense table and assist in the defendant's defense of a driving under the influence charge, thereby precluding the wife's testimony under the sequestration rule; moreover, if there was error, the defendant induced the error. The issues were explained to the defendant, the defendant and the wife considered the pros and cons of the wife's role as a witness, and they decided that the wife would not testify. Hernandez v. State, 297 Ga. App. 177, 676 S.E.2d 795 (2009) (decided under former O.C.G.A. § 24-9-61).

- Violation of the sequestration rule does not affect admissibility of the testimony, but the party's recourse is to seek instructions from the court informing the jury that the presence of the witness in the courtroom in violation of the rule should be considered in determining the weight and credit to be given to the testimony of the witness. Wright v. State, 246 Ga. 53, 268 S.E.2d 645 (1980) (decided under former Code 1933, § 38-1703); Jordan v. State, 247 Ga. 328, 276 S.E.2d 224 (1981);(decided under former Code 1933, § 38-1703).

RESEARCH REFERENCES

ALR.

- Exclusion from courtroom of expert witnesses during taking of testimony in civil case, 85 A.L.R.2d 478.

Scope and extent, and remedy or sanctions for infringement, of accused's right to communicate with his attorney, 5 A.L.R.3d 1360.

Effect of witness's violation of order of exclusion, 14 A.L.R.3d 16.

Counsel's reference, in presence of sequestered witness in state criminal trial, to testimony of another witness as ground for mistrial or reversal, 24 A.L.R.4th 488.

Prejudicial effect of improper failure to exclude from courtroom or to sequester or separate state's witnesses in criminal case, 74 A.L.R.4th 705.

Exclusion of witnesses under Rule 615 of Federal Rules of Evidence, 181 A.L.R. Fed. 549.