# Hernandez v. State

> Indiana Supreme Court · October 1, 1999 · 716 N.E.2d 948

URL: https://www.frixlaw.com/law-library/cases/9505671

## Case

- **Full name:** Rosalio HERNANDEZ, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below)
- **Court:** Indiana Supreme Court
- **Decided:** October 1, 1999
- **Citations:** 716 N.E.2d 948; 1999 Ind. LEXIS 885; 1999 WL 784074
- **Precedential status:** Published
- **Opinion:** Dissent by Boehm
- **Judges:** Sullivan, Shepard, Rule, Selby, Boehm, Dickson
- **Cited by:** 35 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9505671

## How later opinions describe it (automated extraction)

- concluding that testimony from prison officer that he was familiar with defendant and contents of his offend *878 er packet was sufficient to establish that defendant was person named in certified documentation of prior unrelated convictions
- concluding that testimony from prison officer that he was familiar with defendant and contents of his offender packet was sufficient to establish that defendant was person named in certified documentation of prior unrelated convictions
- concluding that testimony from prison officer that he was familiar with defendant and contents of his offend er packet was sufficient to establish that defendant was person named in certified documentation of prior unrelated convictions
- acknowledging that Rule 615 clause 3 is typically invoked for an expert witness rather than a fact witness
- holding that a prison guard, who was the only person that could assist in the cross-examination of inmates, was an “essential witness” under Rule 615

## Opinion text

*954 BOEHM, Justice,
dissenting.
I join in parts II and III of the Court’s opinion. However, I believe it was reversible error to permit Wallace to remain at the counsel table because Wallace did not meet the requirements of Evidence Rule 615(3) as an “essential witness.” I reach this conclusion for the reasons suggested by the majority in footnote 3. The trial court’s rulings as to the status of a potential witness as “essential” under Indiana Evidence Rule 615(3) are reviewed using an abuse of discretion standard. See Fourthman v. State, 658 N.E.2d 88, 90 (Ind.Ct.App.1995) (“[w]hether a witness fits in an exemption under Rule 615 is within the trial court’s discretion”). The trial court in this case appears to have relied on pre-Rules of Evidence case law “that a party has a right to choose one person to assist it in the presentation of [its] cause.” 1 Because the trial court’s ruling that Wallace was an “essential witness” was based on this incorrect view of the applicable law, it expressed no judgment on the degree to which Wallace was “essential” and therefore its ruling is not entitled to deference.
Indiana has little case law concerning the application of Rule 615, but the Indiana rule is nearly identical to that in some other jurisdictions, including the federal courts. 2 Accordingly, cases from these other jurisdictions interpreting Rule 615 provide useful guidance in construing the exceptions to Indiana Evidence Rule 615. The Advisory Committee Notes to Federal Rule of Evidence 615 state that the essential witness “category contemplates such persons as an agent who handled the transaction being litigated or an expert needed to advise counsel in the management of the litigation.” Generally, this exception has been applied to expert witnesses or witnesses who summarize large amounts of information “[b]ecause Rule 615 is designed to preclude fact witnesses from shaping their testimony based on other witnesses’ testimony ... [. I]t does not mandate the sequestration of expert witnesses who are to give only expert opinions at trial.” Opus 3 Ltd. v. Heritage Park, Inc., 91 F.3d 625, 629 (4th Cir.1996); see also Polythane Sys., Inc. v. Marina Ventures Int’l, Ltd., 993 F.2d 1201 , 1209 (5th Cir.1993); United States v. Ortiz, 10 F.Supp.2d 1058, 1061 (N.D.Iowa 1998) (to qualify as essential under Rule 615(3), the party must show that the “party’s attorney could not effectively function without the presence and aid of the witness,” not that the witness is merely helpful or desirable) (quoting Oliver B. Cannon & Son, Inc. v. Fidelity & Cas. Co., 519 F.Supp. 668, 678 (D.Del.1981)); 4 Jack B. Weinstein & Margaret A. Berger Weinstein’s Federal Evidence § 615.04[3][b] (2d ed.1999).
A fact witness — as opposed to one with necessary expertise — is to be excluded as a matter of the operation of the rule in the absence of some unusual circumstances. See Opus, 91 F.3d at 629 (“adherence to the sequestration rule is most important” with respect to “key fact witness[es]”). The trial court found no particular need for Wallace to assist counsel, and none is apparent to me.
Assuming an error occurred under Rule 615, the question remains whether it requires reversal and under what standard *955 we make that decision. Indiana has no precedent on these points. There are three standards in federal courts and courts of other states addressing errors in witness separation orders under rules identical or similar to our Rule 615. The majority of federal courts require the party objecting to the decision to show prejudice occurred as a result of the error. See United States v. Sykes, 977 F.2d 1242, 1245 (8th Cir.1992); United States v. Prichard, 781 F.2d 179, 183 (10th Cir.1986); Virgin Islands v. Edinborough, 625 F.2d 472, 474 (3d Cir.1980); United States v. Warren, 578 F.2d 1058, 1076 (5th Cir.1978) (en banc), modified on other grounds, 612 F.2d 887 (5th Cir.1980). Other courts require the party supporting the erroneous decision to show that the error was harmless. In other words, there is a presumption of prejudice that must be overcome before the erroneous decision may stand. See United States v. Jackson, 60 F.3d 128, 136-37 (2d Cir.1995); United States v. Brewer, 947 F.2d 404, 411 (9th Cir.1991); Uni ted States v. Pulley, 922 F.2d 1283, 1286 (6th Cir.1991); United States v. Farnham, 791 F.2d 331, 335 (4th Cir.1986); State v. Roberts, 126 Ariz. 92 , 612 P.2d 1055, 1057 (1980). Finally, at least one court has suggested that a violation of Rule 615 should result in an automatic reversal. See United States v. Burgess, 691 F.2d 1146, 1157 (4th Cir.1982).
Because there is no meaningful way to measure the harmfulness of the educational value to a witness who sits through the other witnesses’ testimony before taking the stand, I think that the correct approach is to presume prejudice when the trial court errs on a separation order. This can be overcome if the non-movant can show that no prejudice occurred. Here no such showing has been made. Accordingly, enforcement of the rule requires reversal in this ease.
DICKSON, J., concurs.
. Perhaps the trial court had Rule 615(2) in mind. Wallace’s presence would have been permitted under that rule as the representative of a party (the State) if he had remained an employee as of the time of trial. Wallace testified that although he worked for the Indiana State Prison at the time of the incident, at the time of trial he was employed by the Department of Justice. If he had continued to be employed by the State of Indiana, under the facts presented here, any formal failure to designate Wallace as the State’s representative at the trial would be at worst harmless error. Cf. Heeter v. State, 661 N.E.2d 612, 615 (Ind.Ct.App.1996).
. Federal Rule of Evidence 615 was amended in 1998 to create a fourth category of persons who may not be excluded under a separation order. These are ’’person[s] authorized by statute to be present.” Other than this addition, the only differences between the federal and Indiana rules are stylistic.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9505671. Public record. Not legal advice.