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  • Brian Foley

Montgomery County Criminal Defense Attorney - Texas Rules of Evidence Series RULE 614

Rule 614 is the only rule that is know by lawyers simply as "The Rule." You would think it would be something of paramount importance? Well I'm not sure that it is. I think that it became known as this because when a lawyer wants to invoke it they don't really want to have to explain what it means cause it is about to make some people mad that they have to leave the room.

When a lawyer invokes "The Rule" what they are doing is asking that the Trial Court exclude the witnesses from the courtroom so that they are not prejudiced or biased by the testimony of the other witnesses. For example one witness may not remember that the car of the defendant was green when it sped off from the bank. They might remember that it was blue. If that witness is present in the courtroom and watches 8 witnesses before them all say that the car was green then he or she may not testify to their memory but to the collective memory of the other witnesses at the trial. This would prevent an attorney from showing the discrepancy.

So lets talk about the exceptions. You didn't think there would be a blanket rule without exceptions did you? Come on, we're talking about lawyers here.

The first group of people who cannot be excluded form the courtroom during the trial are the parties themselves. In a criminal case this means the defendant and the prosecutor for the State. A victim is not considered a party to a criminal action they are merely a witness. There is an exception for victims under subsection (d) but it provides that "if the court determines that the victim's testimony would be materially affected by hearing other testimony at trial[]" then the victim can be excluded as well. I have been doing this for a long time and I have never seen a judge allow a victim to remain present in the courtroom other than to hear opening statements and closing arguments. Every other phase of the trial the victim and any testifying family members are excluded.

In a civil case you can have your wife or husband sit with you and the judge may not exclude them. Not sure what the rationale is here but thats the rule.

Corporations are not natural persons but they may have a representative for the corporation present in the proceedings if they are designated by the attorney.

Finally the most important exception to "The Rule" is "a person whose presence a party shows to be essential to presenting the party's claim or defense." What does this translate to in real life? Expert witnesses. You see an expert can rely on hearsay to form expert opinions even on matters that go to the ultimate issue like, "Is the county liable?" or "Is this guy criminally negligent?" (Preview of Rule 704).

An expert may sit in the courtroom to observe the reactions of a defendant to help determine if he is "malingering." Malingering is a term used typically in Capital Murder Cases to see if a defendant meets the definition of insanity or has diminished capacity or is suffering from mental retardation to the point that they are not eligible for the death penalty. Malingering basically means, "faking it."

An expert may observe another expert's testimony so that they may give advice on how to question the opposing expert on cross examination. They may consult with the lawyers on how to do this or be called as a rebuttal witness to cover areas where they feel the other side left out or misconstrued important information.

Rule 614. Excluding Witnesses At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person and, in civil cases, that person’s spouse;

(b) after being designated as the party’s representative by its attorney:

(1) in a civil case, an officer or employee of a party that is not a natural person; or

(2) in a criminal case, a defendant that is not a natural person;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) the victim in a criminal case, unless the court determines that the victim’s testimony would be materially affected by hearing other testimony at the trial.


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