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State v. Jascalevich

Decided: March 14, 1978.

STATE OF NEW JERSEY, PLAINTIFF,
v.
MARIO JASCALEVICH, DEFENDANT. IN THE MATTER OF APPLICATION OF MYRON FARBER AND THE NEW YORK TIMES COMPANY RE: SEQUESTRATION



Arnold, J.c.c. (temporarily assigned).

Arnold

This matter came before the court on a motion by Myron Farber, a reporter, and The New York Times Company, to exempt Myron Farber from the provisions of an order of sequestration entered by this court on January 17, 1978, as part of the pretrial order.

The facts show that Farber has written articles for the New York Times about this matter, commencing in January 1976. According to an article printed in the New York Times (hereinafter the Times) on January 8, 1976, Farber showed Joseph Woodcock, the Bergen County Prosecutor at that time, a deposition not in the State's file and provided additional information that convinced the prosecutor to reopen an investigation into some deaths that occurred at Riverdell Hospital.

Prior to the commencement of this trial, which involves some of those deaths, this court required both the State and defendant to provide lists of prospective witnesses to the court and to each other. Such a list was submitted on behalf

of defendant on November 10, 1977. The name of Myron Farber appeared on defendant's list.

A pretrial conference was held by this court on January 17, 1978. The State requested that all fact witnesses be sequestered. The court directed that all witnesses be sequestered as set forth in the pretrial order. A subpoena ad testi ficandum was served on Farber on March 1, 1978. A hearing was held before this court on March 2, 1978, at which time counsel for defendant represented, as an officer of the court, that Farber had relevant and competent information and that he intended to call him as a witness, and demanded that he be sequestered in accordance with the order. The court ruled preliminarily that defendant's right to a fair trial required that Farber should not be exempt from the sequestration order. The court observed that in no sense was the Times prevented from fully reporting any of the happenings in open court. The court also suggested that it would allow Farber to attend the proceedings if he would testify in an incamera proceeding prior to the openings and again at the close of the State's case. Farber refused the court's offer. It may be noted the assistant prosecutor does not at present object to excluding Farber from the prohibitions of the sequestration order. The articles of January 7 and January 8, 1976 were marked in evidence. For the purpose of the hearing, the court permitted the Times to become a party to the application, and an affidavit of A. M. Rosenthal, executive editor of the Times , was submitted in opposition to the court's order of sequestration as it pertains to Farber.

The Times and Farber contend that he should be exempt from the order of sequestration. They assert that under the laws of this State and the First Amendment to the Constitution of the United States, Farber is entitled to be present throughout the trial and should not be sequestered.

To separate or sequestrate witnesses is termed by most courts as "putting the witness under the rule." A trial judge may exclude witnesses from the courtroom during the trial and may direct that they shall be examined out of the

hearing of one another, or may direct that they shall be separated from one another. This is within the trial judge's discretion and is not a matter of right. It has been held that this discretion must be exercised in such a way as not to deprive the accused of his right to a fair and impartial trial.

The purpose of the rule is to discover truth, detect and expose falsehood. This, of course, is accomplished by preventing testimony of one witness from being influenced by another -- that is, for the purpose of preventing witnesses from shaping their testimony to match that given by other witnesses within their hearing. The purpose is expressed in an Alabama case:

The manifest purpose of the rule is to secure the truth and promote the ends of justice; to have the recollection of the individual witness, of the facts which he may testify to, uninfluenced by the testimony of other witnesses, or, in the case of experts, the opinion of the expert, uninfluenced by the evidence of ...


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