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Government of Virgin Islands v. Edinborough

decided: June 9, 1980.

GOVERNMENT OF THE VIRGIN ISLANDS
v.
EDMUND EDINBOROUGH, APPELLANT



ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS (Cr. No. 78-209)

Before Adams, Maris and Sloviter, Circuit Judges.

Author: Sloviter

Rule 615 of the Federal Rules of Evidence provides for the sequestration of witnesses when requested by one of the parties. In this appeal we are asked to hold that the failure of the district court to sequester a witness is, without more, reversible error. Because we find that the action of the district court resulted in no prejudice to the defendant, we will affirm the judgment of the district court.

I.

Defendant Edmund Edinborough was charged with raping the 13 year old daughter of his former wife on two occasions.*fn1 At his bench trial before the district court, the only witnesses testifying were the defendant himself, the 13 year old prosecutrix and the mother of the prosecutrix. The young girl was the first witness called, at which time the following colloquy took place:

THE COURT: All right, let's proceed, call whichever witness you want first.

(U. S. ATTORNEY): Call (the prosecutrix).

(DEFENSE COUNSEL): May we have sequestration, please?

THE COURT: Is her mother in court?

(U. S. ATTORNEY): Yes.

THE COURT: No, I am not going to put the mother out while the child is testifying.

Defendant's counsel made no attempt to explain the basis for the requested sequestration and he did not thereafter move to exclude the testimony of the mother which was elicited later in the proceeding.

Defendant was convicted on all counts and sentenced to concurrent terms of imprisonment ranging from five to eight years.*fn2 The only ground raised on appeal is the court's failure to direct sequestration of the witness. Defendant argues that under Federal Rule of Evidence 615, sequestration of a witness is mandatory when a party makes a request, and the court's ...


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