The Rule of Sequestration

Casey Anthony’s defense team lists a local reporter as a witness as a ruse to try and preclude the reporter from covering the trial.

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:

  1. The information is relevant and material to unresolved issues that have been raised in the proceeding for which the information is sought;
  2. The information cannot be obtained from alternative sources; and
  3. 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.)

Author: Richard Hornsby

Orlando, Florida Criminal Defense Lawyer and DUI Attorney Richard Hornsby is Board Certified in Criminal Trial Law by the Florida Bar and represents clients throughout Central Florida in all criminal defense and DUI defense cases.

48 thoughts on “The Rule of Sequestration”

  1. 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!

  2. 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.



  3. 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.

  4. 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.

    1. 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.

  5. 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?


  6. 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.

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