Witness sequestration during trial can extend even to lawyers talking with the accused in mid-testimony, says Fairfax criminal lawyer

Witness sequestration orders (also known as the rule on witnesses) are always granted when I request them at trial, sometimes with judicial modifications. As a Fairfax criminal lawyer, I know that the right to such orders is codified at Virginia Code § 19.2-265.1 and Virginia Rule of Evidence 2:615. The foregoing Virginia Code and Rule of Evidence provisions address physically excluding witnesses from the courtroom except for when they testify (with such exceptions as allowing the defendant and alleged victim to be present, and, under the foregoing evidentiary rule, giving the trial judge discretion to “allow one expert witness for each party to remain in the courtroom”). The purpose of the rule on witnesses is to prevent witnesses from modifying their testimony in order to comport with or respond to what other witnesses have testified to, and what other evidence has already been presented at trial. Judges are permitted to exercise sound judicial discretion, as well, to bar lawyers from talking with their witnesses during trial, so that the lawyers do not share with those witnesses the evidence that has already been testified to, or do not otherwise coach or direct those witnesses in response to the trial testimony and evidence that has already been presented. Warmouth v. Commonwealth of Virginia, 29 Va. App. 476, 485 (1999).

What happens with any witness sequestration order if my Virginia criminal defense lawyer’s efforts to reach my witnesses was unsuccessful until trial has started?

When a Virginia criminal defense lawyer requests a witness sequestration order, the attorney needs to be ready to suggest the terms and conditions of such a ruling, lest the rule on witnesses comes back adversely to bite the defense. For instance, in Warmouth, 29 Va. App. 476, after the defense asked for a rule on witnesses, the judge proclaimed to the witnesses present: “I do not want you to discuss anything at all with any of the three attorneys involved in the case. From here on, you are off limits to the attorneys.” That foregoing admonition presented a challenged to Warmouth’s Virginia criminal attorney, who had not yet had a chance to talk with two witnesses who had not yet appeared for the trial. “The trial court refused to allow defense counsel to talk with these witnesses. Warmouth contends that this ruling violated his Sixth Amendment right to assistance of counsel… However, in the absence of a showing of proper cause or of prejudice that would result from a denial of access, we find no reversible error in the trial court’s denial of access in this case.” Warmouth 29 Va. App. 484-85.

Must my Virginia criminal trial judge exercise sound judicial discretion concerning a rule on witnesses?

Virginia trial judges may bar lawyers from talking with witnesses in the middle of their testimony

As a Fairfax criminal lawyer, I have heard police during witness sequestration orders attempt to speak with prosecutors during trial breaks when their testimony is still ongoing, whether they are in the middle of direct or cross examination. The permissibility of such efforts depends on such factors as the contents of the trial judge’s sequestration order and the subject of the mid-testimony discussion (for instance on the one hand asking the prosecutor to confirm when the judicial recess will end, versus seeking to modify direct examination or coaching about cross examination). The federal Supreme Court in 2026 confirmed that the federal Constitution’s Sixth Amendment means that when a criminal defendant is in the middle of testifying — even if that testimony is to continue into the next day — the court may bar the defendant and their lawyer from discussing their testimony that has started and not concluded, so long as the criminal defense attorney and defendant are still permitted to discuss other aspects of the case (for instance issues of the order of defense witnesses and excusing any defense witnesses, and possible sentencing). Villareal v. Texas, 146 S.Ct. 756 (2026).

Fairfax criminal lawyer Jonathan Katz keeps on top of (and challenges) the relevant evidence, applicable law, and appellate opinions in pursuing your best defense against Virginia felony, misdemeanor and DUI prosecutions. A great start to your Virginia criminal defense can begin with your initial free in-person strictly confidential consultation with Jon Katz about your court-pending prosecution, by contacting us at 703-383-1100, jon@KatzJustice.com, and (text) 571-406-7268.