The Rule of Sequestration is a common law rule that could be invoked by parties to a legal proceeding to exclude non-party witnesses from listening in on what other witnesses testified to.
This common law rule has been codified as Florida Statute 90.616 (“Exclusion of witnesses”) and states in relevant part that “At the request of a party the court shall order […] witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses.”
If requested by a party, the exclusion of witnesses from a proceeding is mandatory, as the rule uses the word shall.
Yes, Florida does have a Journalist’s privilege that can be invoked. See Florida Statute 90.5015. And I believe that a journalist would likely be able to avoid being forced to testify based upon this privilege; especially as it relates to the Casey Anthony case.
More importantly, to overcome the privilege, Baez and Co. would have to show:
- The information is relevant and material to unresolved issues that have been raised in the proceeding for which the information is sought;
- The information cannot be obtained from alternative sources; and
- A compelling interest exists for requiring disclosure of the information.
Given this high legal hurdle, it is unlikely that any reporter has information that would satisfy all three prongs.
But let’s assume for a minute that the privilege does not exist, could Baez really get a reporter excluded from sitting in on the trial by listing them on the witness list?
A black letter reading of the rule would appear to say yes, as exclusion is a mandatory requirement.
However, Gore Newspapers Company v. Reasbeck, 363 So. 2d 609 (Fla. 4th DCA 1978), an old opinion out of the Fourth District Court of Appeals (which predates the codification of F.S. 90.616), indicates that if the invocation of the rule is challenged by the witness or the opposing party, the judge must determine that the “rule” is being properly invoked.
In that case, the defense attorney declared that any person who walked in the room was a potential witness and asked the court to swear them in so that the rule of sequestration applied.
On appeal, the appellate court pointed out early on in the opinion that “the entire charade was simply a ruse by counsel for the defendant to exclude the press from that proceeding.” The court found that “the granting of the rule of sequestration was improper and that the trial judge erred in failing to exercise his discretion by denying the requested invocation of the rule.”
Exercise in Futility
So at the end of the day, it appears that the Defense team’s hijinks are just another exercise in futility. Even assuming Judge Perry does not strike their latest witness list, they are unlikely to overcome the reporter’s privilege and are even more unlikely to successfully invoke the Rule of Sequestration.
Moreover, it is abundantly clear that they are listing the reporter solely as a ruse to harass the reporter – not to mention make an end run around the First Amendment.
A Historical Note
(A little legal history, the Fifth District Court of Appeals was created by legislative act in 1979 and was carved out of the Fourth District Court of Appeals. So all Fourth District Court of Appeals decisions made prior to 1979 are binding on the Fifth District Court of Appeals.)