Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

SEPARATION OF WITNESSES (ME041)

Evidence Rule 615 -- Exclusion of Witnesses.

State v. Sanders 92 Ohio St. 3d 245, 260, 2001-Ohio-189 -- It is within a court's discretion whether or not to order witnesses not to discuss their testimony with other witnesses. Counsel must demonstrate a need for such a measure. Also see State v. Richey 64 Ohio St. 3d 353, 364-365, 1992-Ohio-44, noting witnesses may be cross-examined concerning any prior discussions.

State v. Curran, 166 Ohio App. 3d 206, 2006-Ohio-773 -- Witnesses sat together with a victim advocate, discussed events, and read each other's statements.  But because there were some inconsistencies in their accounts, they freely admitted what they had done on cross, and they had not discussed their testimony, the court did not abuse its discretion denying a mistrial.

Farris v. Kihm, Miami App. No. 201-CA-39, 2002-Ohio-2277 -- Petitioner seeking a civil protection order also sought protection on behalf of his wife, who did not petition separately. Wife qualifies as a party, and is not subject to separation order.

State v. Tichon (1995), 102 Ohio App. 3d 758, 764 -- "'The purpose of a separation order is "so that [witnesses] cannot hear the testimony of other witnesses," *** and tailor their testimony accordingly.'...'Thus, a spectator or witness may not tell a prospective witness what has taken place in court if the judge has ordered a separation of witnesses..'...A trial court's determination to allow a witness to testify despite a violation of its separation order will not be reversed on appeal, absent an abuse of discretion..." (Citations omitted.)

State v. Franklin (1991), 62 Ohio St. 3d 118, 127 -- Corrective measures open to the court when a separation order is violated include permitting the transgression to reflect upon the witness's credibility.

State v. Cox (1975), 42 Ohio St. 2d 200 -- Paragraph one of the syllabus: "Where, in a criminal case, a witness' disobedience of an order for a separation of witnesses is not by procurement or connivance of the party calling him, a trial court may not use such disobedience as the basis for its refusal to permit the witness to testify. (Paragraph one of the syllabus in Dickinson v. State, 39 Ohio St. 73, approved and followed.)" Also see State v. Slone (1974), 40 Ohio App. 2d 523.

State v. Smith (1990), 49 Ohio St. 3d 137, 142-143 -- Mere knowledge that a witness is in the courtroom does not amount to connivance or procurement of disobedience of separation order, though counsel should take affirmative steps to secure compliance.

Price v. Cleveland Clinic Foundation (1986), 33 Ohio App. 3d 301, 307 -- Although an attorney may violate the spirit, if not the letter of an order for sequestration of witnesses pursuant to Evidence Rule 615 by revealing evidence to his witnesses during a recess, that action does not necessitate a mistrial if it does not prevent a fair trial.

Oakwood v. Makar (1983), 11 Ohio App. 3d 46, 48-49 -- Court did not abuse its discretion by not allowing defense expert to remain in the courtroom and by allowing police officer and auditor to remain in the courtroom and then testify, by finding the officer to be "an officer or employee of party which is not a natural person designated as its representative by its attorney" and the auditor to be "a person whose presence is shown by a party to be essential to the presentation of his cause."

Lowry v. Lowry (1988), 48 Ohio App. 3d 184, 189-190 -- In a juvenile case, where the Juvenile Rules broadly define who is a party, a court does not abuse its discretion is refusing to order a separation when it does not appear that anyone who was not a party was present in the courtroom.

State v. Hannah (1978), 54 Ohio St. 2d 84, 90 -- When a police officer has been excepted from a separation order, it is not error to allow the witness to be recalled for a purpose which does not speak to a weakness in the state's case.

State v. Ruff (April 15, 1993), Franklin Co. App. No. 92AP-1625, unreported (1993 Opinions 1449) -- Error to have denied separation at hearing on a motion to withdraw a guilty plea which would have excluded witnesses who were an assistant prosecutor and a witness counsellor.

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