(dissenting).
I agree there was a violation of the witness-sequestration order in the present case. Under the order, only the District Attorney (or the Assistant District Attorney trying the case) could interview the witnesses during the trial. In my opinion, the District Attorney improperly delegated his interview privilege to the Chief of Detectives of the Alexandria Police Department.
I cannot agree, however, that a mistrial should be granted. Insofar as it is pertinent to this case, Article 775 of the Louisiana Code of Criminal Procedure provides that a mistrial shall be ordered when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to secure a fair trial.
The objective of witness-sequestration is to prevent witnesses from being influenced by the testimony of other witnesses and to strengthen the roll of cross-examination in exposing false testimony. The primary purpose of the instruction limiting discussion of the case to the district attorney and defense counsel is to prohibit the witnesses from discussing the case with each other. State v. Raymond, 258 La. 1, 245 So.2d 335 (1971); State v. Lewis, 250 La. 876, 199 So.2d 907 (1967); Bennett, Work of Appellate Courts, 31 La.L.Rev. 376. No suggestion has been made in the present case that the prior testimony has been disclosed to any witness. Hence, the objective of the sequestration has not been defeated.
It is well established in this state and elsewhere that the enforcement of a witness-sequestration rule rests in the sound discretion of the trial court. State v. Rouse, 256 La. 275, 236 So.2d 211 (1970); State v. Coleman, 254 La. 264, 223 So.2d 402 (1969); 53 Am.Jur., Trial, § 33, pp. 48-49.
*713In my opinion, the trial judge properly exercised his discretion when he ruled:
“The violation of the rule of sequestration has probably been on both parties, the violation by the witness herself discussing the case and a qualified violation by the state for sending someone other than talking to the witness personally— from what I’ve heard, I don’t believe that of itself this is prejudicial and I am not going to grant the motion for a mistrial. I do want to note that the future course of evidence can be controlled to some extent in an effort to prevent harm or prejudice to the defendant arising out of the witness having given this statement. In other words it is the ruling of the Court that the state should not profit by possibly having obtained a statement from this witness and possible impeachment of the witness based on that statement or possible contradictory content in the statement, will be regulated by the Court.”
As I construe the ruling, the trial judge condemned the violation and agreed to protect the defense from any prejudice as a result of the violation, even to the extent ■of barring use of the statement if it became necessary. Although the contempt power was available, the trial judge did not use it, possibly because there was no decision of this Court holding that the District Attorney’s interview privilege was non-delegable. See LSA-C.Cr.P. Art. 764, Comment (b).
Insofar as I can determine, no mistrial has ever been granted for a violation of a witness-sequestration order. On analysis, a mistrial appears to be an inappropriate remedy. See Cruz v. People 149 Colo. 187, 368 P.2d 774 (1962); Annot., Witness— Violation of Exclusion Order, 14 A.L.R. 3rd 16, 114-116. In the present case, for example, the identical situation will exist on the new trial as on the original trial. The trial judge can do no more to protect the rights of the defendant than he has already done.
In denying a mistrial for a District Attorney’s violation in Cruz v. People, supra, the Colorado Supreme Court aptly stated:
“No authority is cited in support of the contention that if there in fact be a violation of the exclusion rule a mistrial is the proper penalty, and it is indeed difficult to perceive just how a mistrial would remedy the mischief, if any, resulting from this alleged violation. The long standing rule followed by this Court is that even though there be an intentional violation of an exclusion order, it is still within the sound discretion of the trial court to permit the offending witness to testify, and we know of no instance where a mistrial has been approved as a proper penalty for such violation.”
*715See also State v. Jordan, 151 La. 293, 91 So. 740 (1922).
For the reasons assigned, I respectfully dissent.