ARCHIVED QUESTIONS & ANSWERS
see more recent Q&A May a person be convicted of homicide if the victim's body is never found? Yes. With no body, prosecutors must rely on other evidence to establish that the crime alleged occurred and the defendant committed it. Both direct evidence--such as confessions and eyewitness testimony--and circumstantial evidence--such as blood stains and testimony of related events--may be used. The U.S. Supreme Court first acknowledged that a person could be convicted of homicide without a body in 1834. Of course, in modern cases, DNA evidence may be critical. In a recent Montana case, prosecutors alleged that Martell severely beat the victim, Red Dog, then threw his body into the mostly frozen Missouri river. Witnesses testified to the beating. Searchers were unable to find Red Dog's body, but did find his ripped jacket and bloody sweatshirt. A hunter testified to seeing blood stains in the road where the beating occurred. Prosecutors also relied on Martell's written statement admitting that he instigated the fight and had told his partner in the beating that they "couldn't let [Red Dog] go" alive. In another case, prosecutors alleged that Moore shot Brisbin in Moore's camper. Witnesses said Moore had called Brisbin and asked him to come to the camper; he hadn't been seen since nor his body found. Within two days of Brisbin's disappearance, Moore cleaned blood from his camper, discarded bullets and carpet, covered and repaired bullet holes, and spilled battery acid in the camper in an effort to cover and clean stains. A bullet was found under the floor of the camper. (The shooting and conviction occurred before DNA analysis became available.) On appeal, the court agreed with prosecutors that Moore's actions showed consciousness of guilt, much like evidence of flight after a crime, and the evidence was relevant to the jury's decision because it "tended to prove" both the commission of the crime and Moore's responsibility. Other cases have turned on testimony about death threats and years of domestic abuse, blood-spatter evidence, a bloodstained revolver, bits of tissue, recent life insurance purchases on the victim, and elaborate lies told to explain the victim's disappearance. In your stories, keep in mind that where there is no body, you must show that the crime occurred--that is, the victim is probably dead--as well as showing that your character committed the crime. The evidence you rely on must go directly to the heart of the case, the res gestae or "things done." Put the missing person in direct contact with the defendant, as with Martell's beating of Red Dog, or Moore's phone call to Brisbin. If you use physical evidence from the homicide scene, put both victim and killer together at or near the scene. Complicate matters by involving another person, as in Red Dog's murder, or with evidence suggesting that the victim often disappeared on his own for weeks at a time. Show that the killer had the opportunity to dispose of the body--or frustrate detectives with evidence that he had no time to hide it. Because bodyless cases are hard to prove, they often turn cold. Your story may benefit from a tenacious detective or prosecutor, a forensic analyst, or a determined relative. Find ways to put your witnesses in a position where they need to talk--or need to stay silent. In real life, no body sometimes means no conviction. But in fiction, it can make for a terrific story. Can a child testify in a criminal trial? Yes, but very young children must first be found competent to testify. In Idaho, Joseph Duncan was set to stand trial for murdering a woman, her boyfriend, and her teenage son, and kidnaping her two younger children for sex; he later killed the younger boy but was captured in Montana with the girl, who is now nine. Idaho law requires a judge to interview privately any child under ten to determine competency. Days before trial, the judge found the girl competent to testify. Some states establish competency review requirements by statute, while others rely on case law. Most states require that witnesses under ten be interviewed to determine their competency, either before trial or during trial but outside the presence of the jury. Older children’s competency may also be challenged, if the lawyer opposing the testimony files a motion asking the court to determine competency. In the Duncan case, the nine year old is the only living witness to a triple homicide; the judge determined her competency before trial because of the potential effect on plea discussions and trial if she were unable to testify. The issue in determining competency is whether the minor witness has the ability to 1) understand the obligation to tell the truth, and 2) to accurately relate events seen, heard, or experienced. (The same rules apply to adult witnesses whose mental capacity is in question.) Those criteria are broken down further into these elements: • Capacity to observe. • Sufficient intelligence. • Adequate memory. • Ability to communicate. • Awareness of the difference between truth and falsehood. • Appreciation of the obligation to tell the truth in court. Judges are trained to use age-appropriate terms and measures. A young child may say that if she lies she’ll be punished, or if he doesn’t tell the truth, God won’t love him any more. In most cases, that’s enough. In Washington State, a three year old was allowed to testify about abuse that occurred when she was two, because she met the basic criteria for competence as to the subject of her testimony. Obviously, she could not be asked more complex questions that a seven or ten year old could understand and respond to, but she demonstrated her understanding of the difference between the truth and a lie, and the importance of telling the truth; the judge concluded that she had the necessary ability to observe and communicate what had happened to her. However, it’s entirely possible that another three year old or an older child might not be found competent. When a child is unable to testify, their prior statements to parents, counselors, doctors, or law enforcement may be admissible at trial under some circumstances. I’ll look at that issue in another column. As a direct result of the Idaho court’s competency decision in Duncan’s case, on the day jury selection was scheduled to begin, Duncan pled guilty in state court to three charges of first degree homicide and three charges of first degree kidnaping. He was immediately sentenced to life in prison without parole on the kidnaping charges. Federal prosecutors plan to try him on additional kidnaping and homicide charges for taking the two young children to Montana where he molested both and killed the boy. If he is not sentenced to death on the federal charges, Idaho may still seek the death penalty on the Idaho homicides. Duncan said he wanted to spare the family and community any more pain. It's unlikely that he would have pled guilty without the nine year old's testimony. Two other states are still considering charges for unrelated crimes. The possibility that a child will testify can add a lot of drama and tension to a case. You can use that possibility, the competency evaluation, and the trial testimony to complicate your plot and add layers to your story. May a felon vote? Forty-eight states and the District of Columbia bar incarcerated persons from voting. (Only Maine and Vermont permit prisoners to vote.) But what happens after an offender is released? In thirty-six states, felons on probation or parole may not vote. But even after a felon serves his complete sentence-- becoming an ex-felon -- eleven states bar at least some felons from voting for life. (Limited exceptions are available if a person is pardoned or a conviction expunged, complicated processes that are rarely invoked.) In recent years, several states have overturned their bans, and the trend to restore the vote may continue. Supporters of the lifetime voting ban say it's a tool in fighting crime, enforcing punishment, and ensuring that full sentences are served, including payment of fines and restitution. Opponents say the ban impedes re-entry and re-integration into society. A person who cannot vote is less likely to feel part of his community, and may have less respect for its laws. To an ex-felon determined to put the past behind him, the ban is a continuing obstacle to rehabilitation. The sentence represents the debt to society; once it's served, the debt is paid and full civil rights should be restored automatically. Ex-felons' votes were a major issue in Florida in the 2000 presidential election, leading to a challenge to the ban, which was upheld. Verification of felon lists became a political hot potato in Florida in 2004, and also played a role in the litigation that followed Washington State's hotly disputed 2004 election for governor. The voting ban also has racial implications. The Sentencing Project, http://www.sentencingproject.org/issues_03.cfm, estimates that the ban makes 13% of black men ineligible to vote, and keeps 4.7 million Americans from the polls. Other rights limited in some states include gun ownership, jury service, and holding public office. Some states permit a felony conviction to be considered in employment or in licensing. Crime writers can use the bans in political thrillers, or to heighten the complications for an ex-felon seeking to reestablish a normal life. A man tries to explain to his new wife or his children why he can't vote, serve on a jury, or teach his son to hunt while keeping his troubled past a secret. What are concurrent and consecutive sentences? When a person is convicted of multiple offenses, the judge must impose sentence for each offense. The judge may require the sentences to be served concurrently, meaning at the same time, or consecutively, one after the other. The factors a judge considers: -- Did the offenses arise from the same conduct? Concurrent sentences are typically imposed on offenses arising from the same incident, where the defendant's actions violate multiple statutes. Example: a woman convicted of theft by forging her employer's signature on a check is also convicted of forgery for the same act. Concurrent sentences are likely. -- Did the defendant intend to commit separate crimes? Say our forger then then destroyed a bank letter inquiring into the resulting overdraft. In covering up her theft by forgery, she committed a second crime, mail destruction. Consecutive sentences are likely. -- Was the defendant previously sentenced, in any court, to a sentence not yet completed? If she was on probation for a previous forgery -- or an unrelated crime, such as assault -- consecutive sentences are likely. In addition, her probation will be revoked, requiring her to complete her prior sentence. -- Were multiple incidents committed against the same victim? If our embezzler forged multiple checks over a period of months, she clearly had time to contemplate her actions and stop her criminal behavior. Again, consecutive sentences are likely. Particulars vary from state to state. Some states mandate consecutive sentences for certain offenses, e.g., DUI and vehicular homicide (or any crime charged as the result of a death or injury the defendant caused while intoxicated). This is a legislative expression of public policy, based on the seriousness of the crimes. As always, the nature of the crime, the impact on the victim and community, and the defendant's criminal history are major considerations. And, as in any two-for-one deal, the higher sentence controls. Thus, if a two-year and a five-year sentence are imposed concurrently, the defendant remains subject to state control for five years. Life sentences may be consecutive, and a sentence for another offense may be consecutive to a life sentence. This reflects a policy of imposing the sentence appropriate to the crime, regardless of the likelihood of the defendant actually serving it. In addition, such sentencing serves the philosophical roles discussed in an earlier column of rehabilitation, retribution, and deterrence. Deferred and Suspended Sentences What is a deferred sentence? A judge has discretion to defer or postpone imposing sentence for a specified time, with conditions, in exchange for a guilty plea. Essentially, the judge reserves authority to impose a sentence. At the end of the deferral period, if the offender has met all conditions, charges are dismissed. In most states, the conviction becomes confidential information available to law enforcement and the courts, but not to the public. But if the offender fails to meet the conditions -- e.g., commits another offense or fails to complete a treatment program -- the judge may revoke the deferral and impose sentence. Deferrals are usually limited to traffic offenses, misdemeanors, or first-time, nonviolent felonies. Actor Macauley Culkin received a deferred sentence and a fine for possession of anti-depressants without a prescription and marijuana. What is a suspended sentence? A judge may impose sentence but suspend a portion, e.g., a ten year sentence with all but two years suspended. The offender must serve the two years, although in many state systems, time served can be reduced for good behavior. During the suspended period, the offender remains on supervised probation, with conditions. The judge may reimpose the rest of the sentence if the offender violates the terms of his release and probation. The time suspended hangs over his or her head, as an incentive, until the full sentence expires. Conditions may include limited jail time, work release, payment of court costs, a fine, or restitution, treatment, community service, house arrest, or other terms aimed at rehabilitating the offender while protecting the victim and society. Revocation and resentencing: If a condition is violated, the prosecutor where the case was originally handled files a petition to revoke the deferred or suspended sentence. Where possible, the case returns to the sentencing judge. The judge schedules a revocation hearing to determine whether the conditions were violated. The prosecutor's burden of proof is usually "by clear and convincing evidence," a lower standard than "beyond a reasonable doubt," the standard for conviction. If a violation is found, the judge may continue the original sentence, modify the conditions of release, impose a sentence where sentencing was deferred, or impose all or part of a suspended sentence. What about plea agreements? The prosecutor and defense counsel may negotiate a plea agreement. Typically, the prosecutor agrees to recommend a specific sentence in exchange for the defendant's agreement to plead guilty to some or all of the charges, or to lesser charges. In some cases, the prosecutor may agree to simply not oppose the defendant's request for a particular sentence. But plea agreements are not binding on judges, and it's not uncommon for a judge to reject an agreed-on recommendation and impose a stiffer sentence. Defendants are now advised, usually in writing, that a particular sentence is not guaranteed, and that the defendant may not withdraw the plea if the judge rejects the recommendation. Judges typically question defendants before accepting guilty pleas, and may refuse a plea if the defendant denies guilt or does not appear to understand the process. A judge may also refuse a plea if he or she believes the seriousness of the case does not warrant dismissed or reduced charges. Some states require signed waivers or plea agreements. A typical agreement includes the defendant's acknowledgment that: -- the plea is voluntary and is not the result of force, threats, or promises; -- defense counsel has explained the right to trial and the effect of waiving that right; and that he or she: -- is satisfied with the services of defense counsel, has been properly represented, and has had ample time to prepare a defense; -- is not suffering any emotional or mental disability and is not impaired by drugs, alcohol, or prescription medication; and -- fully understands what he or she is doing. Many states allow a defendant to withdraw a plea before judgment is entered on a showing of "good cause," such as the judge's misstatement of the maximum sentence possible or the defendant's lack of proper mental capacity. Pleas may be withdrawn after judgment if new, exculpatory evidence emerges. While the public sometimes disparages plea agreements, agreements save time and money in a heavily-pressured judicial system. Prosecutors trade the risk of an acquittal for a certain conviction, and defendants exchange the risk of conviction for time and liberty. Some states limit the offenses in which agreements may be made. For example, New Jersey limits plea agreements in cases of driving under the influence of drugs or alcohol. Increasingly, victims are given a more active role in plea negotiations. What is the right to a speedy trial? The United States Constitution, Article VI, says: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trail, by an impartial jury...." State constitutions provide the same guarantee. The Supreme Court established guidelines for analyzing speedy trial claims in Barker v. Wingo (1972). The Court recognized that delay skews the fairness of the entire judicial system. The government must diligently pursue charges it brings, and cannot leave them hanging, unresolved, over a defendant's head. The remedy is dismissal of the charges. Four factors must be balanced, based on the case facts: (1) Length of delay. The trigger period varies by state, running roughly 90 to 200 days from arrest, indictment, or custody to trial. Length alone is not typically dispositive; shorter delays may violate the right, while longer delays may be permitted. (2) Reasons. Delays are charged to the party responsible. A defendant cannot complain about a delay attributable to him or his conduct or condition - e.g., a postponement he requested, time to brief a motion he filed, a rescinded plea, or his unavailability for trial because he fled the jurisdiction or was mentally ill. Once he demonstrates sufficient delay attributable to the State, the burden shifts to the State to prove the lack of prejudice. The defendant then has a final chance to establish prejudice. The Speedy Trial Act of 1974 specifies what delays will be counted in federal prosecutions. Even if the threshhold delay is not shown, the defendant may still demonstrate prejudice. Courts have held that intentional delay by the State may eliminate that need. (3) Assertion of the right. To preserve the right, the defendant must assert it before trial. The prosecution may request a signed waiver, e.g., before requesting a mental exam or when new evidence is discovered. Waivers are usually time-limited. As in the Beltway Sniper case, the trial judge may order the right waived because of trial complications, logistics, and expected length. (4) Prejudice. Courts recognize that prejudice can be hard to show. The three traditional bases - the problems speedy trial is intended to prevent - are: 1) pretrial incarceration; 2) anxiety and concern; and 3) impairment of the defense, particularly from the death of witnesses and fading memories. What is res judicata? Said "race" or "rez ju-duh-KAH-ta, " the phrase means "a thing adjudged." Once a matter has been decided, it cannot be relitigated. A person who has had a full opportunity to litigate an issue may not wait and raise the issue in a separate case, hoping that a second bite of the apple will taste better. To establish that a judgment on the merits of a case is res judicata in the present case, four criteria must be met: 1) both cases must involve the same parties, or persons "in privity" with parties to the earlier case -- that is, persons standing in the same shoes; 2) the subject matter of the action must be the same; 3) the legal issues must be the same and relate to the same subject matter; and 4) the parties must have the same "capacity" or relationship to the subject matter and issues. In a recent Montana case, prisoner Brown joined other inmates in a case called Quigg, alleging that the state Department of Corrections (DOC) improperly transferred inmates to institutions that did not provide treatment, training, or rehabilitation opportunities. While Quigg was pending in the trial court, Brown was denied parole because he had not completed mandatory sex offender treatment - treatment not available in the private prison to which he'd been transferred. He sued, asking that the DOC be ordered to transfer him back to the state prison where he could obtain treatment. The Supreme Court held that Quigg was not res judicata, even though Brown was a party, because no final judgment had been issued. Brown was free to pursue his own claims. Brown also argued that the issues he raised differed because he claimed to be irreparably injured and demanded transfer; the state replied that Brown's arguments could have been made in Quigg. The Supreme Court did not decide that question; it may arise later, particularly if the two cases are decided differently. Brown v. Department of Corrections, 2005 MT 58, 108 P.3d 498. Res judicata also applies in civil cases. The doctrine could be used in a mystery or crime story involving an old case that's been reopened after a person has already been found guilty in a criminal proceeding or liable for monetary damages in a civil suit. When a law school, law firm, or court sponsors a 10K run, it's often called Res Judicata. Who says lawyers don't have a sense of humor? What is voir dire? Said "vwahr deer" or "vwahr dyer," the phrase means "to speak the truth." I think of it as show and tell. The first phase of jury selection, voir dire is the process of questioning potential jurors. Lawyers meld the responses with other information and their own gut reaction to decide whether to challenge or accept a potential juror. Voir dire is also the jurors' first glimpse of the facts of a case. The judge or lawyers introduces the case with a brief summary. The lawyers' questions reveal some of the anticipated evidence and issues. A skillful lawyer selects the facts given to subtly influence the jury, using the doctrine of primacy -- we tend to remember and believe what we heard first. Voir dire has two core purposes: -- to root out prejudgment that prevents a juror from giving a case a fair hearing; and -- to detect beliefs and perspectives that may affect how a juror views the evidence. Naturally, each side wants jurors likely to sympathize with their position, and tailors questions accordingly. In a vehicular homicide case fueled by alcohol, both prosecutor and defense counsel will ask if potential jurors have been convicted of alcohol-related driving offenses, or have lost friends or relatives to drunk drivers, but phrase their questions differently. Prosecutors look for a sense of indignation and anger. Defense lawyers often remind jurors of reasonable doubt and the presumption of innocence. Either side may engage jurors in a conversation about beliefs and attitudes. Potential jurors may be sent questionnaires with their summons for jury duty, asking general information or questions customized for a specific case. In a products liability suit, questionnaires asked potential jurors' experience with plumbing failures and insurance claims. In recent years, some judges -- especially federal judges -- have taken more control of voir dire. Judges often ask general questions themselves, leaving the lawyers to follow up on individual responses. The move is both an attempt to control the length of trial and to prevent invasive or wandering questions. Voir dire is usually complete the first morning of trial. In more complex cases, jury selection can take several days. Pretrial publicity affects length -- the more attention a case receives, the longer jury selection takes. The goal is not to find jurors who know nothing about the case, but to find jurors who can keep an open mind until they've heard all the evidence and seen all the witnesses. Voir dire also refers to a short questioning, by the judge or counsel, to determine a witness's competence to testify. For example, before a witness testifies about something she saw, the other lawyer may be allowed to ask foundation questions about where the witness was standing, the lighting, and her sight. Before a young child testifies, the judge may ask questions to determine his ability to understand and tell the truth. What is Habeas Corpus? This Latin phrase (HAY-bee-us KOR-pus) means "bring me the body," and refers to a process allowing a person held by the government to challenge the legality of his or her custody. The right to habeas corpus is an important check on governmental power. It is guaranteed by the United States Constitution, Art. I, Sect. 9: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Historically termed The Great Writ, Habeas corpus originated in English common law, and arose from the rights to personal freedom recognized in the Magna Carta (1215). Parliament adopted the Habeas Corpus Act in 1679. President Lincoln suspended habeas during the Civil War, to permit the detention of rebel soldiers. Habeas is used to challenge detention where there has been no criminal conviction and sentence, or to challenge the physical conditions of detention. It may not be used to attack the validity of an indictment, conviction, or sentence, unless constitutional issues are raised. Though rare, habeas may also be used in civil proceedings involving child custody. Procedure -- A person in custody files a petition seeking a writ, a court order commanding a government official to take specific action. -- The court reviews the petition for legal sufficiency, that is, to determine whether, if the facts alleged are proven, the restraint is illegal. -- If so, the writ is issued to the custodian and the petitioner must be brought to court for a hearing on the facts. -- The judge then determines whether detention is illegal or conditions unreasonable. -- The judge may order release or modify any restrictions on custody. Statutory time limits for filing petitions may be set. Abuses have led courts to limit the exercise of the right to petition, when the same issues are raised repeatedly in the same or different courts. Uses: Habeas is commonly used to assert constitutional violations at trial, such as inadequate counsel or violation of the right to due process. Some states allow habeas challenges when bail is denied, if the denial cannot be appealed. The procedure is also used to challenge the denial of good time, loss of jailhouse privileges, or lack of access to medical treatment, and in some extradition proceedings. A state prison inmate petitioned for habeas corpus seeking relief from restrictions imposed as discipline for participating in a demonstration and disobeying direct orders from corrections officers. Although he got his hearing, relief was denied because the restrictions were not "cruel and unusual" under the circumstances and officials had latitude in designing policies to preserve order and discipline among inmates. Habeas corpus petitions were filed in two much-publicized cases arising after 9/11. Both ultimately reached the United States Supreme Court. In Hamdi v. Rumsfield, an American citizen taken into custody in Afghanistan challenged his detention as an "enemy combatant." The Supreme Court held that he was denied due process of the law when he was not told the grounds for his detention or given a fair opportunity to challenge it. Similarly, in Rasul v. Bush, the Supreme Court held that non-citizens from countries not at war with the U.S. had the right to challenge their detention and assert constitutional violations through petitions for habeas corpus. Habeas has also been sought by reporters jailed for contempt of court for refusing to disclose their sources to law enforcement or other government officials. What constitutes probable cause to search or arrest? A case of suspected homicide: A woman is missing. Her husband's alibi for the time his wife disappeared can't be corroborated. He admits having a girlfriend. A neighbor calls police to report recent digging in the backyard. When police arrive, the husband is packed and ready to go. Do police have probable cause to arrest him or to obtain a warrant to search the home? Probable cause is a reasonable belief, based on facts, that evidence of a particular crime will be found in a particular place to be searched, or that a particular person is responsible for a particular crime -- in this case, homicide. "Mere suspicion" is not enough. The husband's behavior is merely suspicious. That his alibi can't be confirmed and that he is involved with another woman do not establish reasonable factual grounds to believe that a crime has been committed, or to link him to it. But the third factor -- the backyard digging -- is sufficient grounds to get a warrant to search the yard. When the yard is dug up and the missing woman's body or clothing is found, the hole is evidence of a crime, linked to the husband, and establishes probable cause for his arrest. If -- before the yard was excavated -- the neighbor claimed that the day the wife disappeared, she saw the husband carrying a shovel to the backyard, visibility was good, and she sees reasonably well, then the facts show: 1) evidence linking the digging to a crime, and 2) evidence linking the husband to the digging and the crime. Probable cause to search and to arrest would exist even before the yard was excavated. If she'd seen him struggle with the weight of a large bundle or her dog dragged home a scarf belonging to the victim, the showing of probable cause would be even stronger. The case of the suspected drug dealer: Police go to Bateman's apartment to question him about a suspected drug deal. When the door opens, they see Bateman drop a marijuana pipe. While standing with him in the doorway, officers see other drug paraphernalia in the living room. An officer detects a strong odor of smoke. Officers ask if anyone else is in the apartment; Bateman says he doesn't think so. Officers then hear a voice in the kitchen. An officer walks into the kitchen, finds it covered in smoke and soot, and sees a man he recognizes as a convicted drug dealer with an outstanding arrest warrant. After officers enter the apartment, they see a tobacco tin filled with what appears to be marijuana on the living room table. Do officers have probable cause for a warrant to search the apartment for drugs? Yes. They saw a pipe and other paraphernalia. They smelled, then saw, evidence of cooking but no food, with a known drug dealer in the kitchen. These facts establish a reasonable belief that evidence of drug dealing will be found in the apartment. Do officers have probable cause to arrest Bateman on the spot? Yes, for possession of marijuana. If possession of drug paraphernalia is illegal in that state, he can be arrested on that charge as well. A search warrant was obtained and a meth lab found in a closet off the kitchen. Only then did officers have probable cause to arrest Batement for illegal manufacture of drugs. (Facts adapted from State v. Bateman, 2004 MT 281, 323 Mont. 280, 99 P.3d 656.) Are witnesses in a murder trial held somewhere in the courthouse until called so they don't taint each other's testimony? In both criminal and civil cases, either side may ask the judge to exclude witnesses from the courtroom until after they testify. Some judges don't wait to be asked, but ask counsel if they want to invoke "the witness exclusion rule." Exceptions are sometimes made for spouses, depending on the nature of their testimony, its importance to the case, and whether the opposing lawyer believes the spouse is likely to lie or be influenced by other testimony. Witnesses excluded from the courtroom are free to roam as long as they can be reached on short notice to testify. (Cell phones have reduced witness waiting time significantly.) Witnesses for the state may be allowed to wait in the prosecutor's office, which is usually in or near the courthouse. A defense lawyer whose office is close to the courthouse might park a witness there. Some courthouses have small conference rooms in the public area where lawyers can confer with clients (if they aren't in custody) or witnesses, and a witness might be left to wait there. Many courthouses don't have that extra space. The courtroom bailiff -- responsible for security -- is in charge of making sure excluded witnesses don't enter the courtroom. Judges may order lawyers to instruct their witnesses not to talk to or come in contact with witnesses who have not yet testified. Judges may sanction lawyers whose witnesses intentionally or repeatedly violate any part of an exclusion or "no contact" order. In either criminal or civil cases, a junior lawyer ("second chair") or a legal assistant might babysit a nervous witness or sit in the hallway with a witness who feared being confronted. Witnesses can't be sequestered -- meaning confined to a specific room against their will -- because that's an unconstitutional restriction on a person's liberty. Two exceptions: 1) a witness whom police have probable cause to believe would go into hiding or flee the jurisdiction could be "held as a material witness;" and 2) a witness who might be harmed by others, such as an informant, could be "held in protective custody." Legal standards governing these exceptions vary from state to state and in the federal system. Site contents © Leslie Ann Budewitz webmaster@lawandfiction.com 1395 
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