Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

This case raises several important questions not the least of which is: does 
a criminal defendant have a due process right to insist upon the 
sequestration of witnesses -- such that the victim must leave the courtroom 
when she is not testifying?

In this case - the trial judge ordered witnesses to leave during opening 
statements.  The victim did not leave because the advocate told her she did 
not have to leave.  The defendant filed a motion for a mistrial which was 
granted.  The court then forbade the victim to testify again at the new trial 
on the theory her testimony was tainted.

The appellate court here reversed that decision holding that striking the 
victim's testimony was an abuse of the court's discretion.

The important aspect of this decision is the concurring opinion where a judge 
writes separately to emphasize several points:

1.  The accused does NOT have a due process right to insist that witnesses be 
sequestered.  This is a "right" derived from a rule or a statute.  Rules and 
statutes are trumped by victims' constitutional rights, which in Michigan 
include the constitutional right to be present during all aspects of the 
trial.  In short -- the only one with a constitutional claim in this dispute 
is the victim.  (this is the same argument that should be made when the 
accused seeks pretrial "discovery" of a victim's private records.  There is 
NO constitutional right to "discovery" of third-party files and the victim 
DOES enjoy a constitutional right to privacy in her records.  Thus, such 
requests should be summarily denied on the theory the constitution trumps the 
defendant's nonconstitutionally-based request for access.

2.  The court emphasizes that although the prosecutor AGREED to the 
sequestration order, the prosecutor's waiver of the victim's right to be 
present is invalid because the right belongs ONLY to the victim - not the 
prosecutor.

3.  The court explains how the legislature can only IMPLEMENT and ENFORCE 
constitutionally-granted rights for victims -- they cannot create, reduce or 
modify them.  Thus, one cannot interpret a rule or statute that creates 
sequestration rights for the accused as somehow implicitly taking away the 
constitutional right of a victim to be present.

Wendy Murphy


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v NICHOLAS A. MECONI, 
Defendant-Appellee.

No. 273040

COURT OF APPEALS OF MICHIGAN

2008 Mich. App. LEXIS 184


January 24, 2008, Decided

 
NOTICE: 
THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE 
MICHIGAN COURT OF APPEALS REPORTS.

PRIOR HISTORY:  [*1] 
   Wayne Circuit Court. LC No. 06-100055.

JUDGES: Before: Servitto, P.J., and Sawyer and Murray, JJ. SAWYER, J. 
(concurring).

OPINION BY: Christopher M. Murray

OPINION
MURRAY, J.
The prosecution was granted leave to appeal from the trial court's order 
denying leave to appeal a district court order excluding the testimony of the 
victim. On appeal, the prosecution argues that the trial court erred in 
excluding the victim's testimony because the victim had a constitutional 
right to be present at all portions of the trial. Const 1963, art 1, ß524. 
Alternatively, the prosecution argues that even if there is no such 
constitutional right, the trial court still abused its discretion in 
excluding the testimony. Although we do not necessarily disagree with the 
first argument, we believe this case is more prudently resolved through 
acceptance of the second argument.
Background
On September 16, 2005, Nikki Kleinsorge was visiting the home of Rose Meconi, 
who is Kleinsorge's aunt, and defendant's mother. Defendant eventually 
arrived at the house and was angry about Kleinsorge's presence. Kleinsorge 
alleged that defendant grabbed her and threw her from the front porch. 
Kleinsorge allegedly landed on her right arm and fractured her  [*2] right 
elbow.
Defendant was scheduled to be tried in the 25th District Court in Lincoln 
Park. At the outset of the bench trial, the district court ordered that the 
witnesses be sequestered as follows:
 
   Anyone who is scheduled to testify, may testify, anticipates, probably 
could, please stand, leave the courtroom, do not discuss your anticipated 
testimony, nor your completed testimony until released by the Court.

 
The prosecutor and defense attorney proceeded to make brief opening 
statements. At the conclusion of opening statements, the prosecutor called 
Kleinsorge as his first witness. At that time, the court realized that 
Kleinsorge had remained in the courtroom during opening statements. When 
asked by the judge why she did not exit the courtroom before the opening 
statement, Kleinsorge indicated that she was instructed to remain by "the 
crime victim's woman that's here," i.e., the crime victim's advocate. The 
district court ultimately declared a mistrial, finding that, although neither 
the prosecutor nor defense counsel were at fault for the occurrence, 
Kleinsorge nevertheless "ha[d] some taint" and the Court had no other method 
to rectify the problem. The district court subsequently precluded  [*3] 
Kleinsorge from testifying at the new trial, again concluding that Kleinsorge 
was tainted and that there was no way to remedy that taint and still allow 
the witness to testify.
On appeal the circuit court entered an order reversing the district court's 
order excluding Kleinsorge's testimony. The circuit court indicated that the 
district court's order violated the victim's right to be present during trial 
pursuant to Const 1963, art 1, ß 24. However, the circuit court reconsidered 
its prior determination, vacated the order and denied the prosecutor's 
application for leave to appeal. As a result, Kleinsorge's testimony remained 
excluded from trial. The prosecutor subsequently filed an application for 
leave to appeal to this Court, which we granted.
Analysis
It is our duty to refrain from deciding constitutional issues when a case can 
be decided on other grounds. Wayne County v Hathcock, 471 Mich 445, 456 n 10; 
684 NW2d 765 (2004). As explained below, regardless of whether there exists a 
constitutional right for the victim to remain in attendance throughout a 
trial, the trial court's decision to exclude the victim's testimony was, 
under the facts presented, outside the principle range of  [*4] outcomes. 
People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
The purposes of sequestering a witness are to "prevent him from 'coloring' 
his testimony to conform with the testimony of another," People v Stanley, 71 
Mich App 56, 61; 246 NW2d 418 (1976), and to aid "in detecting testimony that 
is less than candid." Geders v United States, 425 U.S. 80, 87; 96 SCt 1330; 
47 LEd 2d 592 (1976). Additionally, the United States Supreme Court has 
recognized three sanctions that are available to a trial court to remedy a 
violation of a sequestration order: "(1) holding the offending witness in 
contempt; (2) permitting cross-examination concerning the violation; and (3) 
precluding the witness from testifying." United States v Hobbs, 31 F3d 918, 
921 (CA 9, 1994), citing Holder v United States, 150 U.S. 91, 92; 14 SCt 10; 
37 LEd 1010 (1893). Although usually stated in the context of a defense 
witness' exclusion in a criminal case, courts have routinely held that 
exclusion of a witness' testimony is an extreme remedy that should be 
sparingly used. See, e.g., United States v Smith, 441 F3d 254, 263 (CA 4, 
2006); Hobbs, supra.
If the victim in this case had a constitutional right to be present  [*5] for 
the entire trial proceedings, as aptly suggested by the concurrence, the 
trial court certainly would have abused its discretion in precluding the 
testimony. However, even if the victim did not have such a right, 1 the trial 
court still abused its discretion by imposing such a severe sanction. It is 
undisputed that the violation of the sequestration order resulted from an 
innocent mistake. The trial court repeatedly remarked that it did not find 
fault with anyone, as neither defense counsel, the prosecutor, nor the trial 
court saw the victim sitting in the courtroom. That the violation was not 
purposeful is a significant mitigating factor. So is the fact that the victim 
only heard short opening statements, not testimony, as MRE 615 specifically 
provides for sequestration of witnesses "so that they cannot hear the 
testimony of other witnesses" (emphasis added). See, also, Stanley, supra. 
Finally, this was a scheduled bench trial, and the trial court would 
certainly be capable of determining the victim's credibility knowing that she 
heard the opening statements. In light of these mitigating factors, the trial 
court abused its discretion in implementing the most severe sanction. 

1   We  [*6] quickly point out to the reader that this means that we are only 
assuming that the victim does not have such a constitutional right.
Reversed and remanded for further proceedings consistent with this opinion. 
We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ Deborah A. Servitto

CONCUR BY: David H. Sawyer

CONCUR
SAWYER, J. (concurring).
Although I agree with the result reached by the majority, and do not 
necessarily disagree with its reasoning, I write separately because I believe 
we should address the substantive issue raised. We are asked in this appeal 
to determine whether a crime victim may be sequestered despite their right, 
under Const 1963, art 1, ß 24(1) to be present at "trial and all other court 
proceedings the accused has the right to attend." I would hold that a victim 
may not be involuntarily sequestered.
Defendant was charged with aggravated assault, MCL 750.81a, against his 
cousin, Nikki Kleinsorge. At the outset of the bench trial in 25th District 
Court, the trial court ordered that the witnesses be sequestered. Although 
other witnesses left, Kleinsorge did not leave, apparently on the advice of 
the crime victim's advocate. Kleinsorge's presence in the courtroom was not 
discovered  [*7] until after both the prosecutor and the defense attorney 
made their opening statements and Kleinsorge was called as the prosecutor's 
first witness.
Defendant moved for a mistrial based upon the violation of the sequestration 
order, arguing that the victim had heard the defense's opening statement and, 
therefore, was "prepared" for her testimony. The trial court granted the 
mistrial. Thereafter, defendant moved to exclude Kleinsorge's testimony at 
the new trial because, having heard the opening statement at the original 
trial, she knew defendant's trial strategy, a description of the expected 
testimony of defense witnesses, and other evidence defendant intended to 
introduce. The trial court granted the motion, excluding Kleinsorge's 
testimony at trial. The prosecutor sought an interlocutory appeal to the 
circuit court, which ultimately denied the prosecutor's application for leave 
to appeal. This Court thereafter granted the prosecutor's application for 
leave to appeal to this Court.
The sequestration of witnesses is addressed by both court rule and statute. 
First, MRE 615 provides as follows:
 
   At the request of a party the court may order witnesses excluded so that 
they cannot hear the  [*8] testimony of other witnesses, and it may make the 
order of its own motion. This rule does not authorize exclusion of (1) a 
party who is a natural person, or (2) an officer or employee of a party which 
is not a natural person designated as its representative by its attorney, or 
(3) a person whose presence is shown by a party to be essential to the 
presentation of the party's cause.

 
Next, MCL 780.761, which is part of the Crime Victim's Rights Act, 
specifically addresses the issue of the sequestration of a victim who will be 
called as a witness:
   The victim has the right to be present throughout the entire trial of the 
defendant, unless the victim is going to be called as a witness. If the 
victim is going to be called as a witness, the court may, for good cause 
shown, order the victim to be sequestered until the victim first testifies. 
The victim shall not be sequestered after he or she first testifies.

 
There is little doubt that the trial court's order sequestering the victim 
before her testimony (i.e., during opening statements) was consistent with 
both the rule of evidence and the statute. But the inquiry does not end there 
because there is also a constitutional provision establishing  [*9] certain 
rights for the victims of crime.
Const 1963, art 1, ß 24 provides in pertinent part as follows:
 
   (1) Crime victims, as defined by law, shall have the following rights, as 
provided by law:
* * *
The right to attend trial and all other court proceedings the accused has the 
right to attend.
* * *
(2) The legislature may provide by law for the enforcement of this section.

 
This constitutional provision clearly grants the victim the right to be 
present at the entire trial to the same extent as the defendant is so 
entitled. And it is undisputed that a defendant has the right to be present 
during opening statements. The question before us then becomes whether the 
grant of authority to the legislature to "provide by law" for the enforcement 
of the constitutional provision carries with it the grant of authority to 
restrict the otherwise absolute grant of a right to the victim to be present 
during the entire trial. I conclude that it does not.
Defendant first argues that the constitutional provision does not authorize a 
victim to disobey a sequestration order. This argument, however, is 
backwards. The question is not whether the constitution authorizes a 
violation of a sequestration order, but  [*10] whether a statute or court 
rule may authorize sequestration despite the constitutional provision.
Defendant next argues that the impingement upon the victim's right to attend 
the trial caused by the sequestration was minimal as opening statements took 
less than four minutes. Not only does this argument overlook the fact that in 
many cases the exclusion would be longer than four minutes, but it also 
overlooks the fact that the constitution grants a right to the victim to be 
present during all proceedings, not almost all proceedings or all but four 
minutes of the proceedings.
Defendant also argues that the prosecutor's argument ignores the fact that 
MCL 780.761 expressly authorizes sequestration of the victim prior to the 
victim's testimony. Defendant argues that there can be no violation of the 
constitution because the sequestration order is authorized by statute. I am 
not aware of any authority, nor does defendant cite any authority, for the 
proposition that a constitutional provision may be violated if such violation 
is authorized by statute. Indeed, as Justice Taylor observed in People v 
Moore, 470 Mich 56, 81 n 3; 679 NW2d 41 (2004) (Taylor, J., dissenting), it 
is "a fundamental axiom  [*11] of American law, rooted in our history as a 
people and requiring no citations to authority, that the requirements of the 
Constitution prevail over a statute in the event of a conflict." See also 
Marbury v Madison, 5 U.S. 137, 177; 2 L Ed 60; 1 Cranch 137 (1803) ("an act 
of the legislature, repugnant to the constitution, is void").
Similarly, defendant's argument that there could be no violation of the 
victim's rights because the prosecutor expressly agreed to the sequestration 
order is without merit. There is no provision in Const 1963, art 1, ß 24 for 
the prosecutor to waive the victim's right to attend the trial. The right for 
the victim to attend the trial belongs to the victim, not the prosecutor. 
Therefore, it is the victim, not the prosecutor, who may waive that right. 
And there is no indication in this case that the victim waived her right to 
attend the entire trial.
This, then, brings us back to the question we originally posed: does Const 
1963, art 1, ß 24, by its own terms, authorize the Legislature to restrict 
the victim's right to attend the entire trial? Questions of constitutional 
and statutory interpretation are both questions of law that are reviewed de 
novo. People v McCuller, 479 Mich 672, 681; 739 NW2d 563 (2007).  [*12] 
Although defendant never squarely addresses this issue in his brief, I 
believe that we must address it given the importance of this issue. And, in 
doing so, I reject the conclusion that MCL 780.761 validly grants the trial 
court the authority to sequester the victim.
Const 1963, art 1, ß 24(2) grants the Legislature the authority to "provide 
by law for the enforcement of this section." As always, to interpret the 
meaning of the constitution, we first look to the words actually used in the 
constitution. That is, we look to the plain meaning of the words used, as the 
people would understand them at the time of ratification. Co Rd Ass'n of 
Michigan v Governor, 474 Mich 11, 15; 705 NW2d 680 (2005). The provision at 
issue here clearly and unambiguously authorizes the Legislature to enact 
legislation to enforce the constitutional provision. There is no grant of 
authority to diminish the constitutional right. The primary definition of 
"enforce" is "to put or keep in force; compel obedience to." Random House 
Webster's College Dictionary. The Legislature's authorizing a trial judge to 
exclude a victim from a portion of the trial hardly compels obedience to a 
constitutional provision that grants  [*13] the victim the right to attend 
the entire trial.
Rather, the clearer and more logical interpretation of ß 24(2) is that the 
Legislature is authorized to enact laws that enforce and uphold the various 
rights granted in ß 24(1). For example, among the other rights granted in ß 
24(1), the victim has the right to be informed of the defendant's release 
from incarceration. Section 24(2) presumably authorizes the Legislature to 
enact a statute which determines who is obligated to inform the victim of the 
defendant's release, how that notice is to be given to the victim, and when 
that information is to be given to the victim. In short, the Legislature is 
constitutionally tasked with the job of implementing the rights granted in ß 
24, not defining them.
Finally, defendant argues that the victim's presence during opening 
statements violated his due process rights under the federal constitution. 
Defendant cites no authority that establishes a federal constitutional right 
for a criminal defendant to have the prosecution witnesses sequestered. The 
prosecutor, on the other hand, provides ample authority for the proposition 
that a failure to sequester witnesses is not a due process violation. See,  
[*14] e.g., Bell v Duckworth, 861 F2d 169 (CA 7, 1988), and State v 
Beltran-Felix, 922 P2d 30 (Utah App, 1996).
In sum, I conclude that Const 1963, art 1, ß 24(1) grants the victim the 
right to be present at the entire trial to the same extent that the defendant 
has a right to be present. This includes the right to be present at portions 
of the trial that occur before the victim testifies, including opening 
statements. This constitutional right cannot be limited by statute and is not 
limited by the federal constitution. Accordingly, the trial court erred in 
ruling that Kleinsorge cannot testify at trial because Kleinsorge cannot be 
sequestered from any portion of the trial (or at least not from those 
portions that defendant has a right to attend).
/s/ David H. Sawyer


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