“A lawyer must be quick to move for the exclusion of witnesses not authorized to be in court when another witness testifies”
“The court has the power, in the trial of a case, to exclude witnesses from the courtroom during the examination of other witnesses. This rule applies to trial [in both] civil and criminal cases” (Francisco, Evidence).
“The object of such order is obviously to elicit the truth by securing the testimony not influenced by the statements of other witnesses or the suggestions of counsel, as well as to prevent the collusion and concert of testimony among witnesses” (Francisco, Evidence).
The excluded witness is not prohibited from testifying but simply disallowed to be present while other witnesses testify.
This is to prevent the excluded witness from listening to the testimonies of others thereby avoiding testimonies based on another’s perception.
Based on the original provision of the 1989 Rules on Evidence, “the judge may exclude from the court any witness not at the time under examination, so that he may not hear the testimony of other witnesses” (Section 15, Rule 132).
The original provision gave the impression that the judge has the absolute discretion to exclude any and all witnesses in the courtroom, the reason being that the Rule did not provide the list of persons who are allowed to be present during the examination of a witness.
While maintaining the general intent of the original provision, the 2019 amendments to the Rules on Evidence supplied a list of those who cannot be excluded in the courtroom, namely:
(a) a party who is a natural person;
(b) a duly designated representative of a juridical entity which is a party to the case;
(c) a person whose presence is essential to the presentation of the party’s cause; or (d) a person authorized by a statute to be present (Section 15, Rule 132).
In addition, the amendments now expressly allow the judge to order the exclusion of witnesses upon his or her initiative or on the motion of any party.
The list of those not authorized to be excluded was taken from the United Stated Federal Rules of Evidence (Section 615).
“Expert witnesses are excluded from the operations of the rule. In most cases, their evidence is not based upon the conclusion which they form from the testimony, but upon hypothetical questions or an assumed state of facts…” (Francisco, Evidence).
“[H]ence, it is not necessary that they should listen to the testimony of other witnesses. But if there is any reason to apprehend (believe) that expert witnesses are… to be influenced by the testimony of other witnesses, they should be treated in the same manner” (Francisco, Evidence citing Jones on Evidence and Johnson v. State, 10 Tex. App 571).
“The rule does not apply to an agent of the party, when the presence of such agent is necessary, as when the agent has gained such familiarity with the facts that his presence is necessary for the proper management of the action or defense” (Francisco, Evidence citing Ryan v. Couch, 66 Ala. 244).
The agent may also be treated as the equivalent of a representative of a juridical entity which is a party to the case now allowed to be present in court by reason of the amendments.
However, “corporate agents not necessary to conducting the case may be excluded” (Francisco, Evidence citing St. Louis…Co. v. Cox, 221 S.W. 1043).
“Ordinarily, witnesses called to testify to another witness’ character for truth and veracity are exempted from the rule” (Francisco, Evidence citing 14 Ency. of Evidence 596).
However, it is the author’s view that if a witness will testify on the notoriety of another then the other witnesses on the same subject matter will have to be excluded.
“In criminal cases, policemen, detectives, or other police officers, may in the court’s discretion, be exempted from the rule, especially where it appears that their presence is required in the courtroom either to guard prisoners on trial or in assisting in the prosecution of the case” (Francisco, Evidence citing 14 Ency. of Evidence 596).
A person who is not a witness but present in the courtroom may afterwards be called to testify if counsel did not previously know that it would be necessary to call him; but the court may decline to allow the witness to testify if the testimony is merely cumulative and if there was no reason given for the failure to call him on the witness stand (see Francisco, Evidence citing 88 C.J.S. 174).
There is nothing in the Rule that prohibits the counsel of record to inquire from the witnesses, inside the courtroom, to verify or validate the statements of the adverse party’s witnesses.
The information can later be used to cross-examine other witnesses.
The prevailing rule is that a witness who violates the order of the court “without the consent, connivance, or procurement of the party calling him or of the counsel representing such party, [will] not [be]… rendered incompetent to testify… [T]he party calling him cannot… be rightfully deprived of the testimony of such witness” (Francisco, Evidence citing 53 Am. Jur. 48-49).
However, “a disobedient witness may be punished for contempt of court, and his disobedience may be considered as affecting his credibility [if he later testifies].” If it could not be foreseen that a disobedient witness would be needed to testify, he or she may give rebutting testimony (Francisco, Evidence citing 53 Am. Jur. 48-49).
In the case of Design Sources International, Inc. and Kenneth Sy v. Lourdez Eristingcol, the principal issue is whether the Regional Trial Court (RTC) committed grave abuse of discretion in issuing assailed Orders disallowing petitioners from presenting Stephen as their witness (G.R. No. 193966, February 19, 2014).
The controversy arose from the objection of the respondent’s counsel to the presentation of Stephen as the petitioners’ witness considering that Stephen was already inside the courtroom during the presentation of witness (petitioner) Kenneth (G.R. 193966, February 19, 2014).
However, as aptly found by the Court of Appeals, the respondent failed to substantiate her claim that there was a prior request for the exclusion of other witnesses during the presentation of Kenneth.
She did not even allege in her Comment that there was any such request (G.R. 193966, February 19, 2014).
“Excluding future witnesses… at the time another witness is testifying, or ordering that these witnesses be kept separate from one another, is primarily to prevent them from conversing with one another. The purpose is to ensure that the witnesses… [are not] influenced by the testimonies of the others.”
“However, without any motion from the opposing party or order from the court, there is nothing… that prohibits a witness from hearing the testimonies of other witnesses… [N]othing in the records… would show that there was an order of exclusion from the RTC, or that there was any motion from respondent’s counsel to exclude other witnesses… prior to or even during the presentation of the testimony of Kenneth.”
Without any prior order or at least a motion for exclusion from any of the parties, a court cannot simply allow or disallow the presentation of a witness solely on the grounds that the latter heard the testimony of another witness.
It is the responsibility of the respondent’s counsel to protect the interest of his client during the presentation of other witnesses (G.R. 193966, February 19, 2014).
Hence, a lawyer must be quick to move for the exclusion of witnesses not authorized to be in court when another witness testifies.
The lawyer’s inaction or delay in moving to exclude witnesses may be considered a failure to protect the interest of his or her client.
