How A Bible Story Inspired Federal Rules

If youre involved in a lawsuit, or you have been arrested and are facing a trial, how do you make sure that witnesses dont conspire to change their testimony to corroborate their preferred version of events? How do you ensure that one witnesss testimony wont inadvertently influence the testimony of another witness? In American courts, one answer is that you place the witnesses under something called the Rule. The Rule refers to a courts requirement that witnesses be excluded from the courtroom until its their turn to testify. The court may also prohibit the witnesses from talking to one another outside of the courtroom as part of placing them under the Rule. Today, the Rule is used in both state and federal courts, including in Federal Rule of Evidence 615. But the idea of sequestering witnesses to prevent the testimony of one from influencing anothers testimony is as ancient as the Bible.

The Rule is incorporated into the Federal Rules of Evidence as Rule 615. While state laws may incorporate a broader version of the Rule, such as one that expressly prohibits witnesses from talking to one another outside of the courtroom, Rule 615 only refers to excluding witnesses from the courtroom. Under Rule 615, if a party to a federal lawsuit requests that witnesses be placed under the Rule, then the court must exclude them from the courtroom so that they cant hear another witnesss testimony. There are a handful of exceptions to the exclusion of witnesses under Rule 615. For example, an individual who is a party to the lawsuit cant be excluded. But in general, the Rule excludes witnesses from the courtroom until its their turn to testify.

The modern version of the Rule included in the Federal Rules of Evidence is just the latest in a string of different versions stretching back millennia. Scholars point to the story of Susanna in an apocryphal portion of the book of Daniel in the Bible as an example of an early version of the Rule. In the story, two village elders conspired against a married woman named Susanna, because she refused to sleep with them. They falsely testified that they caught her with a young man, who escaped when they tried to capture him. As the villagers were leading Susanna to her death, the prophet Daniel stopped them, saying that the two elders were lying. To prove this, Daniel said that the two men should be questioned separately. He asked each elder what kind of tree they had found Susanna and the young man under. Each gave an answer so different from the other that it was obvious to everyone they had fabricated their accusation against Susanna.

Like many other rules in American law, the Rule has an ancient pedigree. But whereas a lawyer who relies on other rules may be backed up by only a few centuries of American and English common law, the lawyer who invokes the Rule is continuing a tradition that reaches back thousands of years.