What is the Rule of Witnesses?
Are you such fools, you Israelites, to condemn a daughter of Israel
without investigation and without clear evidence?
– Daniel 13:48
Some rules of evidence are new inventions, aimed squarely at the trial of disputes in the modern era. Many others emerge out of the common law and first took shape in the 18th and 19th century. [1] But there is one rule of evidence that is far older. So old that it’s often just called “The Rule,” this evidentiary principle predates juries, trials, and much of what we consider law itself.
“The Rule,” sometimes also called the “Rule of Witnesses,” states that a testifying witness should not listen to what other witnesses say first. Its earliest known application dates from approximately 164 BC, in Chapter 13 of the apocryphal [2] Book of Daniel. The story goes something like this:
In the land of Babylon lived a married woman named Susanna. One day two wicked elders saw her bathing in the garden and attempted to proposition her. When she refused them, the two elders falsely accused Susanna of committing adultery with a young man whom they claimed ran away.
The people were all gung-ho to put Susanna to death when a young boy named Daniel came forward and decided to put the elders to the test. He made the people separate the elders so that they could not hear each other’s testimony. Then Daniel asked each elder what he saw. The first elder claimed to have seen Susanna in the arms of a man under a tiny mastic tree, little bigger than a shrub. The second elder claimed to have seen Susanna with the man under a giant, towering oak tree.
When the people heard the contradictory stories, they realized that the elders were lying, freed Susanna and put the elders to death for bearing false witness.
The separate examination of witnesses to detect contradiction, often citing to this story specifically, appears in some of the earliest judicial procedures in England. [3] As jury trials begin to take their modern form in the 15th century, records exist showing the continued use of this technique. [4] Indeed, Professor Wigmore in his eponymous treatise notes that there “is perhaps not testimonial expedient which, having as long a history, has persisted in this manner without essential change.” The United States Supreme Court agreed, calling it “a part of our inheritance of the common Germanic law.” [5]
Under the common law, the Rule of Witnesses was discretionary – a judge could choose whether or not to exclude witnesses from a trial prior to their testimony. [6] This was also the practice in the United States until the original adoption of the Federal Rules of Evidence in 1973. [7] But in adopting Federal Rule of Evidence 615, Congress went further, making preclusion of most witnesses mandatory if requested by a party. As such, in its modern form, the Rule reads as follows:
(a) Excluding Witnesses. At a party’s request, the court must order witnesses excluded from the courtroom so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(1) a party who is a natural person;
(2) one officer or employee of a party that is not a natural person, if that officer or employee has been designated as the party’s representative by its attorney;
(3) any person whose presence a party shows to be essential to presenting the party’s claim or defense; or
(4) a person authorized by statute to be present.
There are several key parts to note.
First, the modern rule effectively gives discretion to the Judge unless one of the parties demands exclusion – which can be done at any time. Once a demand is made, exclusion is required and the Judge effectively has no choice in the matter.
Second, the rule does not apply to the parties to a lawsuit (or in the case of a corporation, one person deemed to represent the corporation). In criminal cases this exception avoids violating the confrontation clause of the constitution, but is applied even in civil matters to ensure fairness and due process. Put another way, it’s hard to say that you had in your day in court when you weren’t even allowed to watch.
Third, there is an exception for a person “whose presence a party shows to be essential to presenting the party’s claim or defense.” While this might seem like a vague catch-all, in practice it generally means either a criminal investigator (in a criminal case) or an expert witness (in a complex civil case). The theory with respect to criminal investigators is that since the defense counsel “always has the client with him to consult during the trial,” the state should have the same privilege. [8]
Finally, there is an exception for a person “authorized by statute” to be present. This was added in 1998 after Congress passed legislation granting certain victims of crime the right to be present throughout trial. [9]
On its face, excluding witnesses from the courtroom is all well and good. But trials have come a long way since 164 BC, and one might naturally wonder about the many other ways that a witness might learn about another witness’s testimony. Can witnesses simply speak with each other outside the courtroom? Can an attorney send a witness the daily transcript so that they can read what other witnesses have said? Or can attorneys just tell witnesses during preparation about what testimony has already taken place?
Prior to 2023, the Courts of Appeals were split on many of these issues. For example, in U.S. v. Smith [10] two criminal defendants were on trial for conspiracy to distribute heroin and the court invoked the Rule of Witnesses pursuant to Rule 615. But late in the case, after the defense counsel sensed some chicanery, “[i]t was established that a police officer, at the order of the deputy chief, took notes throughout the trial and relayed this information to government witnesses waiting to testify.” [11] In spite of this, the Eighth Circuit found that there was no violation of the Rule, as it only required that the witnesses be physically excluded from the courtroom, not that they remain ignorant of what went in within it.
However, the Ninth Circuit rejected a similar argument in U.S. v. Robertson. [12] There the government allowed agents to review transcripts of prior testimony despite a Rule of Witnesses order. The government argued that “there is no Rule 615 violation for reviewing prior testimony from a transcript so long as the witness was not in the courtroom to hear that testimony.” The Ninth Circuit disagreed, holding that “[a]n exclusion order would mean little if a prospective witness could simply read a transcript of prior testimony he was otherwise barred from hearing. Therefore, we join those circuits that have determined there is no difference between reading and hearing testimony for purposes of Rule 615.” [13]
To resolve this split, Rule 615 was amended at the end of 2023 to add the following section:
(b) Additional Orders to Prevent Disclosing and Accessing Testimony. An order under (a) operates only to exclude witnesses from the courtroom. But the court may also, by order:
(1) prohibit disclosure of trial testimony to witnesses who are excluded from the courtroom; and
(2) prohibit excluded witnesses from accessing trial testimony.
This makes clear that, by default, a Rule of Witnesses order only prevents witnesses from physically being present in the courtroom, but that the court has discretion to also prohibit them from receiving anything about that testimony from other sources (counsel, transcripts, etc.).
So, what is the takeaway from all of this? The most critical is that nothing is automatic. If you are concerned that witnesses on the other side will collude on their testimony, you need to specifically ask that the court impose the Rule of Witnesses. You should also request that the court include in that order that witnesses not receive any information concerning prior testimony of other witnesses from any source, including counsel or transcripts.
There’s no guarantee that, like Daniel, you can have the other side’s lying witnesses put immediately to death. But properly utilized, the Rule of Witnesses can be as effective today in ferreting out deception as was over two thousand years ago.
[1] See 1 John Henry Wigmore, Wigmore on Evidence: Evidence in Trials at Common Law § 8 (surveying evidence developments from 1200 – 1930).
[2] Chapters 1-12 of Daniel are drawn from Hebrew and Aramaic sources and are incorporated into virtually every modern Christian Bible. Chapters 13-14 are found in the Greek Septuagint, but not the Hebrew or Aramaic texts of Daniel. Broadly speaking, Daniel Chapters 13-14 are considered canon by Catholic and Eastern Orthodox faiths, but not most Protestant denominations (since Martin Luther himself cut them from his translation). Some, but not all modern Bibles include them.
[3] Wigmore, supra n.1 at § 1837 n.7.
[4] Id. at § 1837 n.9.
[5] Geders v. United States, 425 U.S. 80, 87 (1976).
[6] 1 McCormick On Evid. § 50 (8th ed.).
[7] Holder v. United States, 150 U.S. 91, 92 (1893) (an order separating witnesses was “usually given” upon “the motion or suggestion of either party”).
[8] See Fed. R. Evid. 615 Commentary, Notes of Committee on the Judiciary, Senate Report No. 93–1277.
[9] See e.g., Crime Victims' Rights Act, 18 U.S.C. § 3771(a)(3) (2020).
[10] 578 F.2d 1227 (8th Cir. 1978).
[11] Id. at 1235.
[12] 895 F.3d 1206 (9th Cir. 2018).
[13] Id. at 1215.
