dissenting.
I respectfully dissent from the Court's conclusion that Jiosa is entitled to a new trial. I do not think that the trial court committed reversible error when it exelud-ed the testimony of the victim's mother, Peggy Morgan, after determining that she had violated an order separating the witnesses.1
The Court assumes for purposes of analysis that Morgan violated the separation of witness order when she overheard Jiosa's parents discussing the victim's testimony. The Court holds that despite Morgan's violation, she was entitled to testify because "there is no suggestion that Jiosa had anything to do with any violation of the order." Op. at 607.
*610In my view, mandating the admissibility of testimony in such cireamstances, first, is contrary to our evidence rules2 and, see-ond, fails to recognize the trial court's superior position when it comes to balane-ing fairly the respective interests of the parties3
It is true, as the Court points out, that some cases predating adoption of the Indiana Rules of Evidence support the proposition that a party moving to exclude a witness must show that the other party is at fault for the separation violation. However, we included no language in Evidence Rule 615 requiring a finding of fault before a witness may be excluded. In my view, that was because the Rule represents a change from the common law of separation orders.
The Rule's major change from the common law is that trial courts are now required to grant a separation order when a party requests one. This change removes some of the control over separation orders that trial courts enjoyed at common law and places that control with the parties.4 Retaining fault as a per se rule conflicts with this change in philosophy. If parties are now to have control, then the trial court needs a full range of sanctions to assure the parties exercise that control.
Put differently, if the trial court cannot exclude the testimony of a witness who violates a separation order unless the party offering the testimony is at fault, that party has absolutely no incentive to assure compliance with the order. Indeed, undermining the "parties in control" philosophy of the Rule, the incentive will be for parties to do as little supervising as possible. So long as "there is no suggestion [that they have] anything to do with any violation of the order," the trial court will be unable to exclude their witnesses' testimony.
Without the sanction that gives parties incentives to police their own witnesses, compliance with separation orders is jeopardized. For many witnesses, like Morgan here, the temptation to know what other witnesses are saying at trial will be great. Outside of the extraordinary cases where a contempt citation is possible, witnesses have little stake in complying with the rule on their own.
Of course, a party's "fault" should play a role in the trial court's analysis of the proper remedy for a violation of a separation order. Likewise, in appellate review of a trial court's exclusion remedy, fault on the part of the party offering the witness is an important factor to consider. But Rule 615 does not provide, and should not be interpreted to provide, that absent a showing of fault a court abuses its discretion per se if it excludes a witness who violates a separation order.
When there is an allegation that a separation order has been violated, it is the trial judge who conducts the investigation of whether a violation has occurred and, if so, whether the witness plans to condition his or her testimony based on what he or she learned. This is a quintessential trial management task, reflecting the fact that the trial judge is in the best position to evaluate whether testimony is to come in. Indeed, in Clark v. State, 480 N.E.2d 555, *611558 (Ind.1985) (DeBruler, J.), we said that "[ojlnee a separation of witnesses has been ordered, what to do about a violation of the order is a question which is to be resolved by a study of affected interests and their fair accommodation. The trial court's rulings will not be disturbed unless there is a clear abuse of that discretion." In Jordan v. State, 656 N.E.2d 816, 818 (Ind.1995), we said that "(tlhe determination of the remedy for any violation of a separation order is wholly within the discretion of the trial court.... We will not disturb a trial court's decision on such matters absent a showing of a clear abuse of discretion.", reh'y denied. In both those cases-and others like them-we found that the trial court properly exercised its discretion when it allowed witnesses to testify who had violated separation orders. We found this to be within the trial court's discretion because of its ability to balance fairly the interests of the parties. Clark, 480 N.E.2d at 558. Just as trial courts are in a superi- or position to decide when to allow such testimony, I believe they are in a superior position to decide when to exclude it.
The record shows that Morgan contacted the prosecutor in an attempt to confirm the description of the victim's testimony that she heard from Jiosa's father. She also told defense counsel that she would now offer testimony that she had not mentioned previously. These facts demonstrate that Morgan planned to change her testimony in response to her exposure to another witness's testimony. Moreover, she took these actions after hearing about the victim's testimony, which was the centerpiece of the State's case. This type of taint is precisely the harm that separation orders under Rule 615 are intended to prevent. From this record, the trial court could conclude that Morgan would improperly alter what she would say on the stand because of her exposure to this important testimony. The trial court should not be limited in its range of sanctions for such misconduct.
SHEPARD, C.J., concurs.
. Both the State and Jiosa asked the trial court to order that the witnesses be excluded from the courtroom and prohibited from discussing the case with each other. Indiana Rule of Evidence 615 mandates that a court give such a separation order when a party seeks one:
At the request of a party, the court shall order witnesses excluded so that they cannot hear the testimony of or discuss testimony with other witnesses, and it may make the order on its own motion. This rule does not authorize the exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its aitorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause.
. See Ind. Evidence Rule 615.
. See Clark v. State, 480 NE.2d 555, 558 (Ind.1985).
. Cf. Joyner v. State, 736 N.E.2d 232, 244 (Ind.2000) (noting that the defendant "acknowledged to the trial court that it was his responsibility to advise his witnesses not to talk about the case and to explain the separation order. .... Contrary to his contention in this appeal, [the defendant] was at least partially at fault for [the witness] violating the order.").