Can Witnesses Hear Each Other Testify at Preliminary Hearings?

No, one witness does not get to listen to other witnesses testify at a preliminary hearing if sequestration is requested. In State v. Francis, 145 P.3d 48 (Kan. 2006), the Kansas Supreme Court addressed the issue of witness sequestration during preliminary hearings and trials, making it clear that sequestration of witnesses is mandatory during preliminary hearings if requested by the defense or prosecution.

Key Points from State v. Francis:

1. Mandatory Sequestration at Preliminary Hearings:

   • Sequestration of witnesses means that they are required to remain outside the courtroom so they cannot hear the testimony of other witnesses. In preliminary hearings, if either the defendant or the State requests sequestration, it is mandatory that the witnesses be sequestered. This ensures that witnesses cannot hear and adjust their testimony based on what others say.

2. Discretionary Sequestration at Trial:

   • Unlike at the preliminary hearing, sequestration at trial is not mandatory. It is left to the discretion of the trial court to decide whether witnesses will be sequestered. The court is only required to do so if a party makes a request and the court finds it appropriate.

3. Case Background:

   • In State v. Francis, the defendant, Francis, objected to a detective remaining in the courtroom during the preliminary hearing. Francis was concerned that the detective’s presence could give him an opportunity to hear other witness testimonies and adjust his own testimony accordingly. Despite this objection, the trial court allowed the detective to stay. Francis later argued on appeal that this prejudiced his case.

4. Court’s Decision:

   • The Kansas Supreme Court ruled that at preliminary hearings, sequestration is required if either party requests it, which protects the integrity of the hearing by preventing witnesses from tailoring their testimony. However, at trial, sequestration is not an automatic right and is determined by the trial court’s discretion.

   • In Francis’ case, no specific prejudice was shown, as there was no clear record of where the detective sat during the trial or any evidence that his presence influenced the outcome. Thus, the court upheld the trial court's decision.

5. Prejudice Requirement:

   • If the sequestration rule is not followed, the defendant must show that this failure prejudiced the case in some way. In this instance, Francis was unable to demonstrate that the detective’s presence caused any prejudice, and the court did not reverse the decision.

Conclusion:

Witnesses are not allowed to listen to each other's testimony during a preliminary hearing if sequestration is requested by either the defense or the prosecution. Sequestration is mandatory during preliminary hearings upon request, but at trial, it is subject to the discretion of the court. In State v. Francis, the court emphasized that while witness sequestration is a right at preliminary hearings, a failure to show prejudice caused by a lack of sequestration at trial will not result in the reversal of a decision.