Sunday, October 14, 2012

Case o' The Week: Ninth Stops Short of Sequestration Cliff - Valencia-Riascos, FRE 615, Witness Sequestration and "Case Agents"

A government witness who is allowed to sit in during the entire trial, hear all defense cross-examinations before testifying, and alter his or her testimony in response – that’s called a violation of Federal Rule of Evidence 615, and probably a due process violation, to boot.

(Unless the witness is a cop – in which case, the proper term is, “case agent.”)

The Honorable Judge Susan Graber
United States v. Valencia-Riascos, 2012 WL 4826968 (9th Cir. Oct. 11, 2012), decision available here.

Players: Decision by Judge Graber (left). Hard-fought and creative challenge by Ass’t Federal Defender Rebecca Pennell, Federal Defenders of E. Wa. & Idaho.

Facts: Valencia-Riascos tussled with ICE Agent Miller while being fingerprinted in custody. Id. at *1. He was charged with a Section 111 assault. Id. 

At trial, Valencia-Riascos objected under Federal Rule of Evidence (FRE) 615 to Agent Miller’s presence in the courtroom, asking that he be barred as a witness or – alternatively – required to testify first. Id. The district court denied those requests, allowing Agent Miller to be designated as a “case agent.” Agent Miller testified at the close of the prosecution’s case-in-chief as the only eyewitness to the assault. Id. 

 The district court additionally refused to give the defendant’s requested jury instruction, cautioning the jury not to give any added weight to the testimony of a law enforcement witness. Id.

Issue(s): “Defendant Nilson Herney Valencia–Riascos appeals the district court's denial of his requests to limit the courtroom presence of a law enforcement officer who was the prosecution's main witness. Defendant argues that the district court abused its discretion and denied him due process by declining to exclude the officer from the courtroom, by allowing the officer to sit at the prosecution's table, and by declining to require the officer to testify first.” Id. at *1.

Held: “We affirm. Federal Rule of Evidence 615 requires a district court to permit a designated officer to be present during trial. Any related decisions are discretionary. No abuse of discretion or due process violation occurred in this case.” Id.  

Of Note: The core FRE 615 holding is disappointing, but not without precedent. See id. at *1. The new aspect of this frustrating “case agent” law is Rebecca’s creative challenge based on the “Justice for All Act of 2004 / CrimeVictims’ Rights Act (‘CVRA’).” Id. The defense argued that the 2004 CVRA supplemented FRE 615 (enacted in 1974). Id. at *2. Specifically, Valencia-Riascos correctly argued that the CVRA allows victim-witnesses to observe the trial when the district court determines that testimony by the victim will not be “materially altered if the victim heard other testimony at that proceeding.” Id. (There was no such finding in this case). 

Judge Graber, unfortunately, disagreed, extends a holding from a 2006 Ninth decision, and concludes that a cop/victim/witness can attend a trial either as a FRE 615 case agent or as a CVRA “victim.” Id. at *3.  

How to Use: FRE 615 “case agent” fiction is a galling rule that allows cops to hear the defense cross, learn the theory of the defense, and – “adjust” – their testimony accordingly. To help us fight this unfair advantage, Valencia-Riascos gives us a shred of helpful dicta: “[W]e observe that it may be good practice to require case agent witnesses to testify first, but we decline to adopt a presumption that would deprive the prosecution of the opportunity to present its own case without interference.” Id. at *4 (footnote omitted).

Note that there remains an unexplored corner of the “case agent” rule – the defendant here did not “challenge the constitutionality of [FRE 615],” and under the circumstances of this case the Court saw “no due process violation.” Id. at *3. A general, constitutional, due process challenge to FRE 615’s “case agent” gambit arguably remains unresolved in the Ninth. But see contra United States v. Charles, 456 F.3d 249, 258-60 (1st Cir. 2006).  
For Further Reading: Cramped readings of FRE 615’s sequestration rule (like the case-agent routine) make for tainted witnesses, bad fact-finding, and trials that don’t get at the truth. For a compelling argument urging a broad reading of FRE 615, see Sarah Chapman Carter, Exclusion of Justice: The Need for a Consistent Application of Witness Sequestration Under Federal Rule of Evidence 615, 30 Univ. Dayton L.Rev. 63 (2004).

Image of the Honorable Judge Susan Graber from

Steven Kalar, Federal Public Defender N.D. Cal.   Website at


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