Does “The Rule” of Sequestration Apply Before Trial?

Rule 615, often called simply “The Rule”, is titled “Exclusion of Witnesses”.  “The Rule” is short for The Rule of Sequestration.   Importantly, Rule 615 is found in the Tennessee Rules of Evidence.  The Tennessee Rules of Evidence “govern evidence rulings” and “apply in all trials.”  Tenn. Rules of Evidence 101 and Advisory Commission Comments. Thus, Rule 615 applies to trial, and states as follows:

At the request of a party the court shall order witnesses, including rebuttal witnesses, excluded at trial or other adjudicatory hearing. In the court’s discretion, the requested sequestration may be effective before voir dire, but in any event shall be effective before opening statements. The court shall order all persons not to disclose by any means to excluded witnesses any live trial testimony or exhibits created in the courtroom by a witness. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) a person designated by counsel for a party that is not a natural person, or (3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause. This rule does not forbid testimony of a witness called at the rebuttal stage of a hearing if, in the court’s discretion, counsel is genuinely surprised and demonstrates a     need for rebuttal testimony from an unsequestered witness.

Rule 615 unequivocally only applies at trial and to trial testimony, and even then, the Rule is not absolute.  The Advisory Commission Comments reiterate this point and note that the Rule applies to “courtroom testimony” and to “what witnesses say in court.”  Moreover, the Advisory Commission Comments specifically state that the Rule applies to “courtroom testimony” and “does not prohibit a witness from reviewing depositions of other witnesses before testifying.”