Investigators at Counsel Table in Criminal Trials

Article overview: While a witness is under examination, the magistrate shall, upon motion of either party, exclude all potential and actual witness who have not been examined.

California Penal Code 867

While a witness is under examination, the magistrate shall, upon motion of either party, exclude all potential and actual witness who have not been examined.

The magistrate shall also order the witnesses not to converse with each other until they are all examined. The magistrate may also order, where feasible, that the witnesses be kept separated from each other until they are all examined.

This section does not apply to the investigating officer or the investigator for the defendant, nor does it apply to officers having custody of persons brought before the magistrate.

Either party may challenge the exclusion of any person under this section. Upon motion of either party, the magistrate shall hold a hearing, on the record, to determine if the person sought to be excluded is, in fact, a person excludable under this section.

The language in PC 1538.5(c)4 and Penal Code 867 expressly excludes investigators, including defense investigators, from those laws requiring judges to exclude witnesses during criminal proceedings. Additionally, investigators can stay in the courtroom while others testify EVEN IF the investigator is expected to be a future witness. We note there is no comparable statutory provision in the code covering civil trials.

Why counsel-table access matters

An investigator at counsel table can compare testimony with reports, track evidentiary inconsistencies and support immediate trial decisions. Counsel should identify the investigator’s function and make a clear statutory record instead of accepting a blanket exclusion that prevents the defense team from working effectively.

Related courtroom guidance appears in Expert Witness articles.

Related reading: For related context, read California Ethics Opinion Says No to Law-Firm Parties; Judge Byrdsong Is Pictured Attending Them, Field Sobriety Test Statistics and Admissibility, Uber’s Pennsylvania RICO Lawsuit Against Plaintiffs’ Attorneys.