spoken answers been communicated to the jury through the reading of a stenographic deposition transcript at cross-examination just after Bogdanoff made a statement the Bank believed was a material falsehood. On the other hand, at the other extreme, where the videotape captures (in an admittedly unique manner) the nonverbal event of Bogdanoff being coached by Windsor's counsel, or stuttering and stammering out an answer, or perspiring and looking altogether untrustworthy, the problem is that the "fact" proven by these events--that the probability is high that any statement made by Bogdanoff during trial is false--is so speculative and vague, that the evidence designated to prove this "fact" has little probative value.
The circumstances surrounding the introduction of the videotape were not auspicious: The Bank introduced the videotape at the end of its case-in-chief after it called its last witness; referred to the videotape only once before in cross-examination; had not up to that point suggested that it believed that there was evidence that there was a good probability that any one of Bogdanoff's material trial statements were false; and had laid no foundation up to that point for argument the that the tape would prove, through proof of material falsehood captured on videotape, that there was a good probability that any one of Bogdanoff's material trial statements were false and the result of the fabrication by Windsor's counsel. With these factors in mind, this court concluded that the probative value of the evidence that was uniquely conveyed by the videotape was on the low end of the range described above.
Having explained why this court awarded the videotape proferred by the Bank low probative value, the court will now explain why it properly concluded under Rule 403, that the proferred evidence's low probative value was outweighed by other relevant considerations.
The potential for unfair prejudice to Windsor was very high, given that the Bank's contention that Bogdanoff had fabricated testimony was based on its belief that Windsor's counsel had originated and participated in the "fabrication." Given that this was the basis upon which the Bank wanted to convince to the jury that Bogdanoff's testimony was generally unreliable, it is hard to imagine how the videotape could not be used for the purposes set out by the Bank in its motions without it constantly directing the jury's attention to Windsor's counsel's alleged wrongdoing.
Given that the Bank intended to prove to the jury that Bogdanoff made material misrepresentations because Windsor's counsel violated the law and the Code of Professional Ethics, the impact of the videotape would be dramatic and not easily cured by a limiting instruction. Second, as explained above, this court did not assume that the all the evidence contained in the videotape could be conveyed through other means; however, it did assume that some of the evidence in the videotape could be communicated through cross-examination based on the stenographic record, and that some of the evidence in the videotape would be lost if converted to stenographic transcription. This court did, therefore, conclude that the evidence that could be communicated only by videotape was of significantly less probative value than the evidence that could be communicated by stenographic means.
Furthermore, as has been already shown in the discussion of Hearst, it was not inappropriate for this court to refuse to admit videotaped evidence of low probative value because it would consume too much trial time, even if the trial was long and complex. See note 31 supra. In this case, the court was especially concerned over the fact that the Bank chose not to proffer the videotape until the end of the trial, instead of during cross-examination, which would have been the most obvious point in the trial for its introduction (assuming that the videotape had a legitimate role in this trial at all).
Finally, it must be noted that it is unclear to what extent information relating to Bogdnaoff's credibility would have mattered to the outcome of this case. When Plaintiff's original complaint included allegations of "tortious breach of contract " fraud, and a request for significant punitive damages, the jury would have been asked to choose Mr. Bogdanoff's version of events over a conflicting version presented by the Bank. However, because this court dismissed everything but Windsor's breach of contract claim, very little of the jury's factfinding relied on statements relating to events to which Bogdanoff was Windsor's sole witness. Ultimately, most of this case turned on the jury's evaluation of actions whose outward descriptions were not in dispute.
Drawing the jury's attention to Bogdanoff's demeanor during deposition would not have helped the jury to grapple with the heart of this case.
Given these reasons this court did not err in excluing relevant evidence of low probative value because of its concern for prejudicial effect and the time constraints presented by the trial.
E. Mr. Strauss Was Properly Excluded From the Courtroom
On October 10, 1991, Plaintiff made a sequestration request which this court granted pursuant to Fed. R. Evid. 615. See N.T. Oct 10 at 2. The court permitted Mr. Turko to remain in the courtroom pursuant to Fed. R. Evid. 615(1) (an officer of a party which is not a natural person may be designated by the party's counsel as its representative). On October 11, 1991, Defendant objected to the sequestration of Mr. Strauss on two grounds. First, the Bank argued that Fed. R. Evid. 615(3) permitted "a person whose presence is shown by a party to be essential to the presentation of the party's case" to be exempt from a sequestration order. See N.T. Oct. 11 at 3. Second, the Bank argued that Rule 615 may be unconstitutional:
This is no quarrel with your Honor's interpretation of the rule -- but . . . the rule itself constitutes, as applied to these facts, a deprivation of due process of law, equal protection of the laws and the protected right [under Pennsylvania law] . . . to consult with counsel.
This court will not accept the Bank's invitation to declare Rule 615 unconstitutional under the United States Constitution. This court shall, however, explain its reasons for refusing to recognize Mr. Strauss as a witness whose presence was "essential" to the Bank's case.
Although it is error for a district court to sequester a witness who is essential to a party's cause, the party who wishes to lift the sequestration order from a witness bears the burden of "supporting that allegation." Government of Virgin Islands v. Edinborough, 625 F.2d 472, 476 (3d Cir. 1980). The moving party must "show that the witness 'has such specialized expertise or intimate knowledge of the facts of the case that a party's attorney could not effectively function without the presence or aid of the witness . . . .'" U.S. v. Agnes, 753 F.2d 293, 307 (3d Cir. 1985), quoting Oliver B. Cannon and Son v. Fidelity and Cas. Co., 519 F. Supp. 668 (D. Del. 1981).
The word "essential" connotes necessary; not preferable, or better than some other state of affairs": That is why the exception in Rule 615 has most often been granted in cases where the sequestered witness is an expert of some sort--either an expert witness, or a lay witness who is also a lawyer or accountant. See, e.g., Cannon, 519 F.2d at 678 (court lifted sequestration for expert and lay witness who was an attorney); see also Morvant v. Construction Aggregates Corp., 570 F.2d 626, 629-30 (6th Cir. 1978), cert. dismissed, 439 U.S. 801 (1978) (expert witness is not automatically exempt from sequestration under Rule 615(3)). In this case, it is hard to see in what way Mr. Strauss was essential to the Bank's counsel in this case. It is unclear what difference it made that "Mr. Strauss possessed specialized expertise in banking areas that differed from Mr. Turko's specialties." Defendant's Memorandum at 28. It is probably true that all of the Banks' witnesses possessed different levels of skill in various material areas. Defendant stresses that Mr. Strauss necessarily had "intimate knowledge" of facts not available to Mr. Turko since he attended meetings that Mr. Turko did not attend. Id. at 29. It is clear from the cases above that the least weighty reason for considering a witness "essential" to a case is the factual knowledge he possesses; knowledge of facts at issue in the case is not expertise and can easily be communicated before and after trial.
One reason for this court's skepticism of the Bank's claims that Mr. Strauss was "essential" to its case is that when the Bank told the court of its concern over Mr. Strauss' exclusion from the courtroom, the court offered, over Windsor's objections, to allow the Bank to replace Mr. Turko with Mr. Strauss. See N.T. Oct. 11 at 6. There was never any indication from the Bank that Mr. Strauss could not perform Mr. Turko's job as the Bank's representative in court under Fed. R. Evid. 615(2) and simultaneously provide the "essential" services to his company that, according to Defendant, only Mr. Strauss could supply. Yet the Bank chose to forego Mr. Strauss' presence, which it deemed "essential," in exchange for Mr. Turko's presence, whose ability to serve under Rule 615(2) was apparently no better than Mr. Strauss'. See N.T. Oct. 11 at 7.
This court's decision to reject Defendant's Rule 615(3) request to lift Mr. Strauss' sequestration order was not erroneous.
For the reasons set forth in the foregoing sections, Defendant's Motion For Judgment As a Matter Of Law, or, in the alternative, For a New Trial is denied. An appropriate order follows.
Edward N. Cahn, J.
May 11, 1992
AND NOW, this 11th day of May, 1992, upon consideration of the defendant New Jersey National Bank's Motion for Judgment As a Matter of Law or, in the alternative, For a New Trial, and the plaintiff Windsor Shirt Company's response, IT IS ORDERED that the Motion is DENIED.
BY THE COURT:
Edward N. Cahn, J.