At the request of a party, or sua sponte, the court may order witnesses excluded so that they cannot hear the testimony of other witnesses. The court may not exclude any parties to the action in a civil proceeding, or the defendant in a criminal proceeding.
This section is derived from Zambarano v. Massachusetts Turnpike Authority, 350 Mass. 485, 487, 215 N.E.2d 652, 653 (1966), and Mass. R. Crim. P. 21 (“Upon his own motion or the motion of either party, the judge may, prior to or during the examination of a witness, order any witness or witnesses other than the defendant to be excluded from the courtroom.”). See Commonwealth v. Therrien, 359 Mass. 500, 508, 269 N.E.2d 687, 693 (1971) (court may except from general sequestration order a witness deemed “essential to the management of the case”).
“Sequestration of witnesses lies in the discretion of the trial judge.” Zambarano v. Massachusetts Turnpike Auth., 350 Mass. at 487, 215 N.E.2d at 653. See Commonwealth v. Perez, 405 Mass. 339, 343, 540 N.E.2d 681, 683 (1989) (court has discretion to exempt a police officer in charge of the investigation from a sequestration order). Upon a violation of a sequestration order, a trial judge has discretion in taking remedial action. See, e.g., Custody of a Minor (No. 2), 392 Mass. 719, 726, 467 N.E.2d 1286, 1291 (1984) (trial judge may exclude testimony of person who violates sequestration order); Commonwealth v. Navarro, 2 Mass. App. Ct. 214, 223, 310 N.E.2d 372, 378 (1974) (“but even in a case where a violation of sequestration order is wilful a trial judge might for good reason prefer to invoke contempt proceedings rather than declare a mistrial”).
The second sentence of this section is derived from the Sixth and Fourteenth Amendments to the United States Constitution, and Article 12 of the Declaration of Rights of the Massachusetts Constitution. See also Commonwealth v. Nwachukwu, 65 Mass. App. Ct. 112, 117–120, 837 N.E.2d 301, 306–308 (2005). Civil litigants also have a right to be present during the trial. See White v. White, 40 Mass. App. Ct. 132, 141–142, 662 N.E.2d 230, 236–237 (1996).