Carton, Mintz and Meanor. The opinion of the court was delivered by Carton, P.J.A.D.
Defendant was convicted on charges of armed robbery of one Bennett and one Narkiewicz. His principal contention on appeal and the only one in which we find merit is that the trial court committed reversible error in denying his motion for mistrial on the ground that there had been a violation of the trial court's sequestration order.
The general rule is that the determination whether to grant an order of sequestration in a criminal trial rests in the discretion of the trial judge. See 6 Wigmore, Evidence , (3d ed. 1940), § 1837 et seq.; Annotation, "Prejudicial effect of improper failure to exclude from courtroom or to sequester or separate state's witnesses in criminal case," 32 A.L.R. 2d 358 (1953). The same rule has been held to apply as to remedial action which should be taken by the trial judge when it appears the order has been violated. See Annotation, "Effect of witness's violation of order of exclusion," 14 A.L.R. 3d 16 (1967); 53 Am. Jur., Trial , § 33 at 48 (1945).
The appellate courts of this State have carefully circumscribed the exercise of the trial court's discretion with respect to the procedure to be followed where there has been a timely application for sequestration. They have not hesitated to order a new trial regardless of whether actual prejudice was demonstrable where such motion for sequestration has been arbitrarily denied. State v. Duffen , 104 N.J. Super. 302, 303 (App. Div. 1969). Cf. State in the Interest of W.O. , 100 N.J. Super. 358, 363 (App. Div. 1968); State v. Hines , 109 N.J. Super. 298, 307 (App. Div. 1970), certif. den. 56 N.J. 248 (1970), cert. den. 400 U.S. 867, 91 S. Ct. 108, 27 L. Ed. 2d 106 (1970).
The reason for such a mandatory rule is that a showing of prejudice "would be virtually impossible to make, for no one can tell how the later witnesses' testimony might have differed had the motion been allowed." State v. DiModica , 40 N.J. 404, 413 (1963).
A somewhat different approach has been adopted where the court has granted sequestration but the sequestration order has been violated. In that situation we think the rule should properly be that in the absence of prejudice to defendant, such a violation does not constitute reversible error. State v. Smith , 55 N.J. 476, 485 (1969), cert. den. 400 U.S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970); State v. Michalis , 99 N.J.L. 31, 34 (Sup. Ct. 1923). See State v. Williams , 29 N.J. 27, 46-47 (1959), where it is suggested that fault on the part of the State may be a factor to be considered.
A mistrial is a drastic remedy. Such a remedy should be resorted to only where manifest injustice would otherwise result. State v. DiRienzo , 53 N.J. 360, 383 (1969). For instance, in State v. Smith, supra , where two State witnesses spoke generally to one another and disregarded the sequestration order, a mistrial was denied. The court noted that the motion was untimely made; that there had been no fault on the part of the State, and no showing of prejudice to defendant.
It remains to apply these principles to the facts in this case. At the request of defense counsel, the witnesses for both sides were ordered sequestered. The trial judge explained the order in this fashion:
That means each witness will be called in to testify and no other witness will be in court listening to any of the other witnesses testifying as they do testify.
One of the victims, Bennett, was the first to testify before the jury. After briefly describing the robbery and events leading up to it, his testimony and that of the other victim, Narkiewicz, was then taken on voir dire because the identification of defendant was in issue. Bennett testified first on the voir dire. When his testimony was concluded, the trial judge directed in clear terms that this witness was not to talk to any witness as to what had occurred "nor or during the course of the trial when you're called before the jury. You're not to discuss it with William Narkiewicz or anybody else; do you know that?" Bennett responded in the affirmative. Parenthetically, we observe that it would have been preferable if the trial judge had made the admonition applicable to all witnesses.
Narkiewicz then testified on voir dire. His testimony was interrupted by a lunch recess. After the recess, defense counsel inquired of him whether he had discussed his morning testimony with anyone. He acknowledged that he had spoken with the prosecutor and that Bennett, as well as the arresting officer and two other persons whose identity was unknown to him, were present. Although stating that he and the prosecutor did not directly discuss his morning testimony, he related that they were "laying the facts on the line." He added that there had been some ...