In a court-martial that stretches across several days, keeping witnesses from shaping their testimony to match what others have said becomes a continuous management problem rather than a single courtroom ruling. The rule that governs this is Military Rule of Evidence 615, and its application in a multi-day trial raises practical questions that a one-day proceeding never reaches. This article explains the rule, who it covers, who is exempt, and what changes when the trial does not finish in a single sitting.
Military Rule of Evidence 615 and Its Purpose
Military Rule of Evidence 615 governs the exclusion, or sequestration, of witnesses from the courtroom. Patterned on Federal Rule of Evidence 615, it provides that at a party’s request the military judge must order witnesses excluded so they cannot hear other witnesses’ testimony, and the judge may order exclusion on the judge’s own initiative. The aim is well established in military practice: sequestration discourages and exposes fabrication, inaccuracy, and collusion by preventing a witness from tailoring an account to fit testimony already heard.
When a party invokes the rule, exclusion is mandatory for covered witnesses. The judge does not weigh whether sequestration is a good idea; the request itself triggers the obligation, subject only to the recognized exemptions.
Who Cannot Be Excluded
The rule exempts four categories of persons from exclusion. First, a party who is a natural person cannot be excluded, which in a court-martial protects the accused’s right to be present. Second, in cases involving an entity rather than a person, one officer or employee designated as the party’s representative may remain; in the military setting this commonly allows an investigator or case agent assisting trial counsel to stay in the courtroom. Third, a person whose presence a party shows to be essential to presenting that party’s claim or defense may remain, which can cover an expert who must hear the evidence to form an opinion. Fourth, a person authorized by statute to be present is exempt.
That fourth category carries particular weight in modern courts-martial because of victims’ rights. Under Article 6b of the UCMJ, a victim of an offense has the right not to be excluded from a public hearing or proceeding. A military judge may exclude a victim only after receiving clear and convincing evidence that the victim’s testimony would be materially altered if the victim heard other testimony at the proceeding. This is a high bar, and it means the default in many cases is that a testifying victim remains present.
The Scope of the Order
Sequestration is not limited to physically removing a witness from the room. The order ordinarily prohibits excluded witnesses from learning the substance of testimony given in their absence. Spectators and others should not summarize testimony for sequestered witnesses, and both the parties and the judge are expected to guard against such transmission. The order can extend to instructing witnesses not to discuss their testimony with one another during recesses.
The rule applies most strictly during the contested merits phase. During sentencing, the exclusion of witnesses may be relaxed, reflecting the different character of that proceeding. Even in mixed-plea cases, the rule has application; for example, it can reach a providence inquiry where the accused’s responses function as judicial admissions and a contested trial on other offenses will follow.
What Multi-Day Trials Add
A multi-day court-martial multiplies the points at which the sequestration order can break down, and the rules therefore demand sustained attention rather than a single instruction. Several issues recur.
Overnight and weekend recesses are the chief risk. A witness who has not yet testified, or who is subject to recall, may encounter media coverage, social media discussion, or casual conversation about the day’s proceedings. A careful judge will instruct witnesses at each break not to read, watch, or discuss accounts of the testimony, and counsel should request that the instruction be repeated and tailored as the trial progresses.
Witness access to the record is a second concern. Daily transcripts, audio, or notes circulating among unit members can defeat sequestration just as surely as a witness sitting in the gallery. The order should be understood to reach these indirect channels.
A third issue is the witness who testifies early, is released, and is later recalled. Once released, a witness may have been exposed to intervening testimony, so counsel anticipating recall should ask the judge to keep that witness under the sequestration order rather than discharging the witness.
Remedies for a Violation
A violation of the sequestration order does not automatically bar the witness. The military judge has discretion to choose an appropriate response. Prejudice is assessed by examining whether the witness’s testimony was actually affected by the proceedings the witness improperly heard. Available remedies include allowing cross-examination on the exposure so the members can weigh credibility, giving a cautionary instruction, or in a serious case striking testimony or precluding the witness. The remedy is calibrated to the harm.
Practical Takeaways
In a multi-day military trial, sequestration under Military Rule of Evidence 615 is mandatory on request but bounded by four exemptions, with the accused and, in most cases, a testifying victim remaining present. The real work in a longer trial lies in sustaining the order across recesses, blocking indirect access to testimony, and managing recalled witnesses. Counsel should secure repeated and specific instructions, watch for exposure, and be ready to demonstrate or rebut actual prejudice if the order is breached, because the chosen remedy will turn on whether the testimony was genuinely tainted.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.