DOES ONE WITNESS GET TO LISTEN TO THE OTHER WITNESSES TESTIFY AT A PRELIMINARY HEARING?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
State v. Francis, 145 P.3d 48 (Kan. 2006).
This case answers the following question:
Does one witness get to listen to the other witnesses testify at a preliminary hearing?
The issue in this case is whether one witness gets to listen to the other witnesses testify at a preliminary hearing. Sequestration of witnesses on a request of the defendant or the State is mandatory at preliminary hearings.
In this case, Hollingsworth shot and killed Johnson in June 1997. After being released on bond, Hollingsworth was shot and killed in February 1998. Prior to being released on bond, Francis and others had gone to a bail bonding company to try to pay the bond for Hollingsworth. The group made statements that indicated the bondsman would only be on the bond for a few days, until “they find his body.” Later, after hearing of Hollingsworth’s death, the bondsman called the TIPS hotline. The night Hollingsworth was released on bond, he was at Harrah’s with his mother and his mother’s friend. They left Harrah’s around 3am. Hollingsworth was in the backseat, his mother was driving, and the friend was in the passenger seat of their car. As their car was getting off an exit ramp, another car with bright lights drove up close beside them. Hollingsworth’s mother recognized Francis as a passenger in the car. The other car shot at Hollingsworth, and when the gunfire stopped, his mother pulled into a nearby gas station. The friend ran inside the gas station to get help. Hollingsworth was bleeding, and he was taken by ambulance to the hospital, where he was later pronounced dead. A shoebox of ammunition and multiple guns were found in Francis’ residence. Francis was convicted of first-degree murder. He appeals the conviction, citing numerous errors.
Sequestration of witnesses on a request of the defendant or the State is mandatory at preliminary hearings. However, sequestration is not a right at trial, but is determined by the discretion of the trial court. In the absence of evidence that the presence of the witness prejudiced the defendant, the trial court’s decision will not be reversed. In this case, the State requested at the preliminary hearing that the case detective be allowed to remain in the courtroom to assist during trial. The defense counsel objected because he did not want any credibility imputed on the detective because of his association with the prosecution table. He also objected because he did not want the detective, as a witness, to listen to the other witnesses and adjust his testimony based on what he heard from them. On appeal, Francis argues that he was prejudiced by the detective’s continuous presence in close proximity to the prosecution table. However, Francis never voiced these concerns on the record at trial. Since there is no evidence of where the detective was in the courtroom, no prejudice to Francis can be shown.
The Supreme Court of Kansas affirmed the decision of the lower court. The court found that witnesses are not required to be sequestered at trial, unlike at a preliminary hearing, if the defendant or the State requests it. The case detective was not required to be sequestered at trial, and no prejudice was found by allowing him to remain in the courtroom.