Mis-trial first time around. I let a person I'd subpoenaed but decided not to use to testify stay in the courtroom to watch the first trial. Now I want to use that person in the re-trial.

Can someone give me some authority to convince my judge to let me since the Rule had been invoked the first time.

Thanks.

There is even some authority supporting the court's power to enter a judgment in favor of the aggrieved party.[FN21] These are drastic remedies that impose significant hardship on a party that loses the testimony of a key witness.[FN22] Imposition of such a sanction may be appropriate where the prejudice associated with violation of the exclusion order cannot otherwise be mitigated by permitting attack on the witness' credibility[FN23] or where the violation was procured with the connivance of a party.[FN24] However, disqualification of an important witness[FN25] under less compelling circumstances may be an abuse of discretion.[FN26]
29 Fed. Prac. & Proc. Evid. § 6246

See also 29 Fed. Prac. & Proc. Evid. § 6244 (where trial court refused request to invoke the rule: "it might be argued that those witnesses should be disqualified from retestifying. But if those witnesses are precluded from testifying on the grounds they remain tainted, valuable evidence may be lost and the cost of vindicating Rule 615 rights becomes even higher. The limited authority on point sensibly refuses to impose such a sanction on the party whose witnesses might be disqualified for what is, in effect, the error of the trial court.[FN20] This is consistent with a much more substantial body of authority that usually declines to disqualify a witness even where the court has ordered witnesses sequestered and the court's order is violated.[FN21]")

U.S. v. Jimenez, 780 F.2d 975 (11th Cir. 1986)(where witness read other witness's testimony from prior trial: no abuse of discretion in failing to either declare a mistrial or strike witness's testimony)