SEQUESTERING EXPERT WITNESSES IN DRUNK DRIVING TRIALS

Most experienced trial lawyers will always request the trial court to sequester the adversary’s witnesses. Literally, the word “sequester” means to place apart or segregate. The purpose of this type of trial application is to prevent a potential witness who is present in the courtroom from obtaining a “schooling” from the testimony of a prior witness. Absent some special circumstances, applications of this nature are generally granted. One of those exceptions relates to a litigant’s expert and that is so because an expert has the ability to assist the trial lawyer to develop and analyze facts presented by the adverse party, so as to allow an effective cross-examination.

Last week, the Appellate Division reversed a drunk driving (DWI/DUI) case, where a municipal court judge sequestered a defendant’s expert. The basis of the municipal court judge’s ruling was that the defendant’s lawyer could take notes of the government’s expert and then collaborate with the defendant's expert before cross-examination began. Although a Law Division Judge endorsed that rationale on an appeal from the defendant’s municipal court conviction the Appellate Division disagreed and reversed the conviction.