The issue presented in this pre-trial suppression motion is whether an expert prosecution witness should be exempted from a sequestration order to assist the prosecutor in her cross-examination of defendant's expert, where the State has not been provided with the defense expert's updated medical reports.
The relevant facts are as follows. Immediately before defendant's psychiatrist was to testify, the prosecutor requested that the State's expert be allowed to remain in the courtroom to assist her with her cross-examination despite an earlier sequestration order. The prosecutor's request was based on her inability to conduct an effective unassisted cross-examination since she had not been provided with the testifying psychiatrist's recent reports in time to review them with the State's expert.
The State maintains that no prejudice to defendant will result. In support of her request the prosecutor argues that the State's psychiatrist would not be influenced by hearing the testimony of defendant's psychiatrist because the proposed testimony of each expert is contradictory to the other. Additionally, any delay occasioned by the time required to review
the latest reports with her expert would be eliminated. This court disagrees.
To separate or sequestrate witnesses is termed by most courts as "putting the witness under the rule." A trial judge may sequester a witness if he deems it appropriate; it is a matter of discretion, not a matter of right. State v. Jascalevich, 158 N.J. Super. 488, 492, 386 A.2d 466 (Law Div.1978).
The purpose of the rule is to discover truth and to detect and expose falsehood. As Professor Wigmore's treatise summarizes:
The process of sequestration consists merely of preventing one prospective witness from being taught by hearing another's testimony . . .
6 Wigmore on Evidence § 1838 at 461 (Chadbourn rev. 1976).
It is well-settled in our case law that sequestration orders may be denied where there is a "sound basis" for such denial. State v. DiModica, 40 N.J. 404, 192 A.2d 825 (1963); State v. Hines, 109 N.J. Super. 298, 263 A.2d 161 (App.Div.1970), certif. den. 56 N.J. 248, 265 A.2d 703 (1970). In Hines, the court held that there was a sound basis for excepting the Chief of County Detectives from an order granting a defense motion to sequester prosecution witnesses since because of his knowledge and preparation of the case, he was a necessary trial aide, was fully aware of all aspects of the case prior to trial, and his testimony was already on record. Id. 109 N.J. Super. at 307, 263 A.2d 161.
New Jersey case law has recognized that virtually any lay witness may be sequestered. In State v. Barts, 132 N.J.L. 74, 84, 38 A.2d 838 (Sup.Ct.1944), the court noted that ". . . The wisdom of excluding the lay witness generally is so apparent as to require no discussion of the point, and it is obvious ...