Federal Rule of Evidence (FRE) 615 governs the exclusion of witnesses from the courtroom so that they may not hear the testimony of other witnesses. It makes exclusion mandatory upon the request of a party, or the court sua sponte. When the request is made, the court lacks the discretion to deny the request subject to four exceptions: one for natural persons who are parties in the action; one for an "officer or employee of a party" that is not a natural person; one for a person shown to be "essential" to a party's presentation of the party's case; and one for a person authorized by statute to be present.

Presently, FRE 615 is the subject of amendments proposed by the Advisory Committee on Evidence Rules, after a lengthy review and discussion process, and approved by the Judicial Conference Committee on Rules of Practice and Procedure on June 7, 2022. It is being amended to alert the courts and parties about the possibility of issuing a witness exclusion order, frequently referred to as sequestration orders, that extends beyond the courtroom, and the hearing of trial testimony; and to clarify that the exception for party representatives is limited to one designated agent for each party. If approved by the Judicial Conference, U.S. Supreme Court and Congress, the amendments will take effect on Dec. 1, 2023.

The pendency of these amendments to the federal witness sequestration rule suggests a revisiting of New York's sequestration rule, which this column will undertake.