Shackling Or Physical Restraint Of Defense Witness: Issues And Instructions

(July 2002)

by Thomas Lundy

    While shackling defense witnesses may be less prejudicial to the accused than shackling defendants because it does not directly affect a presumption of innocence, nevertheless it may seriously harm the defendant by undermining the credibility of the witness. Therefore, if security measures such as physical restraints are employed for a defense witness, many of the same considerations which apply to the defendant should be evaluated.

    The following article discusses: 1) the propriety of physically restraining defense witnesses; 2) possible cautionary instructions if restraints are permitted; and 3) related issues.

    A trial judge’s discretion to keep a defendant restrained is "sharply limited." (See State v. Roberts (NJ 1965) 206 A2d 200, 203.) There must be "sound reason" for the exercise of this discretion and a "strong case of necessity." (Ibid.) The judge must hold a hearing, however informal, and state on the record out of the jury’s presence his or her reasons for shackling the defendant, whether they are based on evidence from trial, information obtained from criminal records, or statements made by law enforcement officers. (Roberts, 206 A2d 200, 203; see also State v. McKay (NV 1946) 165 P 2d 389; Gray v. State (TX 1924) 268 SW 941; Hall v. State (IN 1928) 159 NE 420.) Additionally, "in any case where the trial judge, in the exercise of sound discretion determines that the defendant must be handcuffed or shackled, it is of the essence that he instruct the jury in the clearest and most emphatic terms that it give such restraint no consideration whatever in assessing the proofs and determining guilt." (Roberts, 206 A2d 200, 205.)

    A similar procedure should be used when the prospect arises that a defense witness will appear before the jury in physical restraints. (State v. Smith (NJ 2002) 787 A2d 276, 281 [error to allow the defense witness to testify in handcuffs; although defense counsel did not object to the witness testifying in restraints, appellate court held the potential prejudice was so great that the trial court, absent a record demonstrating a threat of violence or other exceptional circumstances, should have sua sponte had the restraints removed]; see also Harrell v. Israel (7th Cir. 1982) 672 F2d 632, 635 ["concomitant to the defendant’s right to appear before the jury without physical restraints is his right to have his witness appear that way also"]; see also generally Wharton’s Criminal Procedure (13th Ed. 1989) § 435, pp. 852-54 and § 436 pp. 858-59 [restraints could undermine the credibility of the defense witness].) While there is some debate among the cases as to whether a due process consideration is involved when a witness is shackled, there is agreement regarding the potential prejudice inherent in such an appearance. (See United States v. Adams (11th Cir. 1993) 1 F3d, 1566, 1584; Woods v. Thieret (7th Cir. 1993) 5 F3d, 244, 246-247; United States v. Carter (D.C. Cir. 1975) 522 F2d 666, 677; People v. Ceniceros (CA 1994) 26 CA4th 266, 275-278 [31 CR2d 303]; State ex rel. McMannis v. Mohn (WV 1979) 254 SE2d 805, 811.) 

    In addition, the American Bar Association (ABA) has promulgated the following standards:

(b) The court should not permit a defendant or witness to appear at trial in the distinctive attire of a prisoner, unless waived by defendant.

(c) No defendant should be removed from the courtroom, nor should defendants and witnesses be subject to physical restraint while in court unless the court has found such restraint necessary to maintain order.

(d) . . . Whenever physical restraint or removal of a defendant or witness occurs in the presence of jurors trying the case, the court should instruct those jurors that such restraint or removal is not to be considered in assessing the proof and determining guilt.

[Control, Restraint or Removal of Defendants and Witnesses, A.B.A. Standards for Criminal Justice 15-3.2 (3d ed. 1996) (emphasis added).] (See also State v. Jones (NJ 1974) 328 A2d 41 [citing tentative draft of ABA standard for guidance, Custody and Restraint of Defendants and Witnesses, A.B.A. Projection Standards for Criminal Justice 4.1 (tentative draft 1968)); State v. Jamaal W., (WV 2000) 543 SE2d 282, 287 [citing earlier version of this ABA standard, Standard 15-3.1 (2d ed. 1986)].)

    At the very least, the jury should be instructed that such restraints have no bearing on the witness’s credibility or the determination of defendant’s guilt. (Smith, 787 A2d at 282; cf. People v. Duran (CA 1976) 16 C 3d 282, 291-292 [127 CR 618] [when visible restraints must be imposed on the defendant the court shall instruct the jury sua sponte that such restraints should have no bearing on the determination of the defendant’s guilt].)

    If the court finds that restraining a defense witness is justified, it may be necessary to take reasonable precautions to minimize any prejudicial effects to the defendant. (See, e.g., U.S. v. DeLuca (1st Cir. 1998)137 F3d 24, 31 [reasonable safeguards must be adopted by the trial court to minimize any risk of infringement upon the fundamental rights of the accused]; U.S. v. Paccione (2nd Cir. 1991) 949 F2d 1183, 1192-93; U.S. v. Tutino (2nd Cir. 1989) 883 F2d 1125, 1132-33; U.S. v. Thomas (2nd Cir. 1985) 757 F2d 1359, 1364.) For example, the jury may be instructed that shackling of incarcerated witnesses is a common practice (cf. U.S. v. Tutino (2nd Cir. 1989) 883 F2d 1125, 1133; see also People v. Ayala (CA 2000) 23 C4th 225, 251 [96 CR2d 682] [instruction that use of metal detectors was the judge’s "policy"].)

CAVEAT: The decision whether to request a cautionary instruction requires careful evaluation. One view is that such an instruction will unduly emphasize the factor sought to be limited. (See FORECITE National™ 297.3.2 [Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter].) On the other hand, the above referenced California Attorneys For Criminal Justice FORUM article suggests that such instructions should be requested. "Many colleagues believe that you should request an instruction on any unusual security to eliminate jury speculation and request it early in the proceedings. Especially is this true when you know the jury is aware of the security measures. In one case the court, over objection, gave the choice between having an extra bailiff in a two defendant case or having leg braces. Defendants and counsel choose leg braces. Counsel, believing the jurors would notice the braces, proposed that the court instruct the jury that whenever there are two defendants in a case, either there will be two bailiffs or the defendants can chose instead to wear leg braces. In that case, the defendants were allowed to show the jury the bottom of the brace to minimize the mystery of the device, the feeling being that the jurors might intentionally or unintentionally notice the brace, so why not diminish the curiosity and speculation factors." (20 California Attorneys For Criminal Justice FORUM # 2 at p. 42.)

    Any instruction cautioning the jury regarding security measures will be more effective if it convinces the jury that the security measure was imposed as a matter of normal procedure rather than because of this individual witness.

    You must not consider, for any purpose, the fact that physical restraints have been placed on _____________ (name of defense witness). These restraints have no bearing on the credibility of the witness or the determination of whether the defendant has been proven guilty. It is [a normal routine procedure] [the policy of this court] to physically restrain witnesses who are incarcerated at the time of their testimony. In deciding the issues in this case, disregard the physical restraints entirely.

[Source: FORECITE National™.]

    You are undoubtedly aware of the security measures employed inside and outside the courtroom, such as screening people before they enter, placement of deputies inside and outside the courtroom, or using physical restraints on incarcerated witnesses while they testify. Such security measures are normal procedures which are routinely used in every case. They have nothing to do with the credibility of the witness or your determination of whether the defendant has been proven guilty. You must not discuss or consider for any purpose such security measures.

[Source: FORECITE National™.]

    You must not discuss or consider the fact that incarcerated witnesses were restrained during the trial. Such security measures are normal procedures which are routinely used in every case. They have nothing to do with this particular defendant.

[Source: FORECITE National™.]

    It is my policy to have incarcerated defense witnesses physically restrained during their testimony.

    You must not view this policy as a reflection on either party or any of the witnesses. It is solely a matter of my personal policy.

[See People v. Ayala (CA 2000) 23 C4th 225, 251 [96 CR2d 682].]

    Ladies and gentlemen of the jury, as you can see the witness is shackled. This is a customary practice that has nothing to do with the defendant or witnesses in this case. Therefore, you can see that it would be very unfair for you to somehow hold this against the defendant, when it has nothing to do with [him] [her] at all. As a result, I instruct you that you may not consider the shackling at all. Do not consider it as evidence of anything and do not permit it to enter into your view of the evidence or your later deliberations.

[Source: Adapted from an example in a California Attorneys For Criminal Justice article by Howard W. Gillingham. (See 20 California Attorneys For Criminal Justice FORUM No. 2 at p. 42, fn 16).]

    Some additional issues related to physical restraints and shackling are listed below. Discussion of these issues may be found at  "Related Issues" or click on the links below.

Shackling: Requirement Of Good Cause (FORECITE National™ 17.1.1 [Propriety Of Security].)

Improper For Court To Defer To Others Regarding Whether Shackling Or Other Security Measures Should Be Used (FORECITE National™ 17.2.1.2.)

Shackling: Violent Nature Of Charge Insufficient To Justify Physical Restraints In Courtroom (FORECITE National™ 17.2.1.3.)

Improper To Shackle At Penalty Phase Of Capital Trial Based Solely On Conviction At Guilt Trial (FORECITE National™ 17.2.1.4.)

Use Of Electric Shock ("Stun") Belt As Compromising Defendant’s Ability To Participate In His Or Her Own Defense (FORECITE^® National 17.2.3.1.)

Courtroom Security: Necessity Of Repeating Presumption Of Innocence (FORECITE National™ 17.1.5.)

Courtroom Security: Effectiveness Of Instruction (FORECITE National™ 17.1.6.)

Courtroom Security: Request Or Sua Sponte (FORECITE National™ 17.1.7.)

Courtroom Security: No Instruction Over Objection (FORECITE National™ 17.1.8.)

Courtroom Security: Lack of Objection May Waive Issue For Appeal (FORECITE National™ 17.1.9.)

Failure To Instruct Upon Security Measures: Standard of Prejudice (FORECITE National™ 17.1.11.)

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Shackling Or Physical Restraint Of Defense Witness: Issues And Instructions: RELATED ISSUES

FORECITE National™

VOLUME 14 - CHAPTER 297

PRACTICE NOTE: Cautionary/limiting instructions may actually heighten the prejudice that they were meant to alleviate. (See e.g., People v. Garcia (CA 1984) 160 CA3d 82, 93 [206 CR 468] ["A strong argument can be made that [an admonition to disregard the defendant's courtroom behavior] does little to dispel prejudice and instead only serves to emphasize an unruly defendant's conduct"]; see also U.S. v. Brawner (DC Cir. 1994) 32 F3d 602, 605 [defense counsel should be free to make as little of the admission by defendant of a prior felony conviction as possible].) As a matter of trial strategy, it may be decided that a limiting instruction would only serve to emphasize the conviction, and hence no admonition may be requested. (Ibid.; see also People v. Elmore (MI 1979) 285 NW2d 417, 420 [trial court properly refused defense request for cautionary instruction because it would emphasize defendant's outburst].)

    "One experienced judge has compared a limiting instruction to an act of throwing a skunk into the jury box and telling the jury not to smell it." (Alexander, MAINE JURY INSTRUCTIONS MANUAL 4-14 [Limited Purpose Evidence-Limiting Instructions] (Lexis, 1999). This merely emphasizes the need to balance the need for limiting instructions against the risk of prejudice. The primary prejudice is that the limiting instruction may give undue significance to the evidence in the jury’s mind. (Ibid.)

    See also FORECITE National™ 26.5.3.2 [Ineffectiveness Of Limiting Instruction As To Uncharged Acts Or Crimes] Available to subscribers.  To become a subscriber, click here.

    See also FORECITE National™ 272.5.4 [Inability Of Limiting Instruction To Cure Highly Prejudicial Misconduct During Summation/Closing Argument] Available to subscribers.  To become a subscriber, click here.

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.12 [Appeal] Available to subscribers.  To become a subscriber, click here.

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VOLUME 3 - CHAPTER 17

PRACTICE NOTE: Generally, courtroom security is permitted as a precautionary measure. However, security measures which will be apparent to the jury may only be imposed if the trial court makes a finding that there is good cause for the added security measure. The finding of good cause must balance the need for security against the potential prejudicial impact upon the defendant on a case-by-case basis. (See e.g., Holbrook v. Flynn (1986) 475 US 560, 568-69 [106 SCt 1340; 89 LEd2d 525] [presence of four uniformed state troopers in first row of spectator section at trial not inherently prejudicial where justified by State's need to maintain custody over defendants].)

    For example, as to shackling, both the Due Process Clause and the 6th Amendment's Confrontation Clause require that "no person shall be tried while shackled and gagged except as a last resort." (Illinois v. Allen (1970) 397 US 337, 344 [90 SCt 1057; 89 LEd2d 525].) Although restraining a defendant in front of the jury is not a per se due process violation, a trial judge should exercise discretion to impose restrictions only when "confronted with disruptive, contumacious, [and] stubbornly defiant defendants." (Id. at 343.) The constitutionally permissible purpose for imposing such restraints is "to maintain order in the courtroom and the integrity of the trial process in the face of an 'actual obstruction of justice.'" (Codispoti v. Pennsylvania (1974) 418 US 506, 513 [94 SCt 2687; 41 LEd2d 912] (plurality opinion).) "Shackling, restraining or even removing a respondent from the courtroom must be limited to cases urgently demanding that action, based upon a balancing of the defendant's rights to be present and to have an impartial jury with the need for orderly administration of justice." (Tyars v. Finner (9th Cir. 1983) 709 F2d 1274, 1284; see also U.S. v. Ives (9th Cir. 1974) 504 F2d 935, 941; Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 57:1).)

See Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities] Available to subscribers.  To become a subscriber, click here.

See also generally, FORECITE National™ 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.] Available to subscribers.  To become a subscriber, click here.

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FORECITE National™

VOLUME 3 - CHAPTER 17

PRACTICE NOTE: The trial court must exercise its discretion in determining whether good cause for shackling of the defendant has been presented. The trial court must not abdicate its decision-making responsibility to others such as the Sheriff's Department or correctional officers to determine whether the defendant should be shackled in court. (See People v. Hill (CA 1998) 17 C4th 800, 841-42 [72 CR2d 656]; see also People v. Thomas (NY 1986) 510 NYS2d 460 [erroneous for court to defer to correctional officers’ request without making factual determination as to necessity]; People v. Vivigliotti (NY 1994) 611 NYS2d 413, [shackling was reversible error where only basis in record for use of restraint was report of Sheriff’s Department]; State v. Canty (CT 1992) 613 A2d 1287, 1294-95 [error to defer to sheriff on issue of handcuffing defendant]; Whittlesey v. State (MD 1995) 665 A2d 223, 249-50 [issue of shackling may not be delegated to courtroom security personnel].)

    See also FORECITE National™ 17.2.1.4 [Improper To Shackle At Penalty Phase Of Capital Trial Based Solely On Conviction At Guilt Trial] Available to subscribers.  To become a subscriber, click here.

See Manual On Recurring Problems In Criminal Trials [14. Jurors Seeing Defendant In Handcuffs] Available to subscribers.  To become a subscriber, click here.

See also Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities] Available to subscribers.  To become a subscriber, click here.

See also generally, FORECITE National™ 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.] Available to subscribers.  To become a subscriber, click here.

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FORECITE National™

VOLUME 3 - CHAPTER 17

    17.2.1.3    Shackling: Violent Nature Of Charge Insufficient To Justify Physical Restraints In Courtroom

PRACTICE NOTE: It is error to order the defendant to be physically restrained based only on violent nature of crime charged rather than on behavior of defendant while in custody. (See Long v. State (TX 1991) 823 SW2d 259, 282; see also State v. Grinder (WI 1995) 527 NW2d 326, 329.)

See Manual On Recurring Problems In Criminal Trials [14. Jurors Seeing Defendant In Handcuffs] Available to subscribers.  To become a subscriber, click here.

See also Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities] Available to subscribers.  To become a subscriber, click here.

See also generally, FORECITE National™ 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.] Available to subscribers.  To become a subscriber, click here.

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VOLUME 3 - CHAPTER 17

17.2.1.4    Improper To Shackle At Penalty Phase Of Capital Trial Based Solely  On Conviction At Guilt Trial

PRACTICE NOTE: "The mere fact that a jury convicted a defendant of first degree murder is not a sufficient basis for a decision to shackle him during the penalty phase. The trial court should look at the particular facts of the case and the conduct of the proceedings and should balance the need for safety and security in the courtroom against the potential for prejudice." (Lovell v. State (MD 1997) 702 A2d 261, 271).

    See also FORECITE National™17.2.1.2 [Improper For Court To Defer To Others Regarding Whether Shackling Or Other Security Measures Should Be Used]. Available to subscribers.  To become a subscriber, click here.

See Manual On Recurring Problems In Criminal Trials [14. Jurors Seeing Defendant In Handcuffs] Available to subscribers.  To become a subscriber, click here.

See also Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities]. Available to subscribers.  To become a subscriber, click here.

See also generally, FORECITE National™ 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.] Available to subscribers.  To become a subscriber, click here.

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VOLUME 3 - CHAPTER 17

PRACTICE NOTE: Electric shock belts have been viewed as an alternative to shackling of the defendant because the belt cannot be seen by the jury and, hence, does not have the potential danger of adversely influencing the jury. However, the potential that the electric shock belt may impair the defendant's ability to participate in his or her own defense may be much greater than with shackles. The shock which is administered to the defendant by the belt is so powerful that it can immobilize the defendant and frequently may induce self defecation and self urination. (See People v. Garcia (97) 56 CA4th 1349, 1354 [66 CR2d 350].) The electric current will "completely short circuit the skeletal muscle nerve system...Skeletal muscle is reduced to a functionless mass and the body will be unable to move or retain posture. The victim simply collapses." (J.M. Robinson, et al., "Electric Shock Devices and Their Effects on the Human Body," 30 Medicine, Science and the Law, 285, 299 (Oct. 1990 British Academy of Forensic Science).)

    A short shock of only 3-5 seconds will leave the person "dazed and weak for at least five, perhaps fifteen, minutes. Such effects are readily claimed by manufacturers in advertising and instruction sheets and have been verified by American police. [Citation.]" (Id. at 298.)

    Besides paralysis and pain, there are lasting adverse health effects. The fall and convulsions from the shock can lead to head injuries and a variety of wounds from impacts with nearby blunt objects. (Id. at 295-96.) The electrodes often leave welts which can take up to six months to heal. (Ann-Marie Cusac, "Stunning Technology," The Progressive (July 1996) p. 18.)

    Hence, a defendant wearing the electric shock belt during trial may be preoccupied with the possibility of being shocked. Moreover, because counsel often must be in physical contact with the defendant, counsel is also at risk of being shocked. (See 30 Med.Sci.Law, supra, at 299.) Thus, both the defendant and counsel will be preoccupied with protecting themselves from the potential pain and adverse health effects of the electric shock belt, thus inhibiting meaningful confidential courtroom communication between the defendant and counsel. Such a result implicates the defendant's right to due process, a fair trial by jury and to effective assistance of counsel under the 5th, 6th and 14th Amendments to the United States Constitution. (See FORECITE National™ 300.1.17 [Fair Opportunity To Defend] Available to subscribers.  To become a subscriber, click here.; see also Hawkins v. Comparet-Cassani (9th Cir. 2001) 251 F3d 1230, 1239-40 [use of stun belt "obviously prejudices a defendant’s 6th Amendment’s guarantee of a fair trial" but potential prejudice must be weighed against the prejudicial effect of other methods of preventing violence in the courtroom]; [NF] People v. Mar REV GTD (6/2/00, S086611) 77 CA4th 1284, 1293 [92 CR2d 771] [a stun belt is a physical restraint within the meaning of People v. Duran (76) 16 C3d 282 [127 CR 618]].)

BRIEFING AVAILABLE: Click here. [Brief Bank # B-813.] Available to subscribers.  To become a subscriber, click here.

MOTION AVAILABLE: For a copy of a motion to preclude the use of an electric shock belt, click here. [Motion Bank # M-3009]. [This motion also appeared in the California Attorneys For Criminal Justice FORUM, Vol. 26, No. 1 (February 1999), p. 21-25.] Available to subscribers.  To become a subscriber, click here.

Amnesty International's report "Cruelty In Control? The Stun Belt and Other Electro-Shock Equipment In Law Enforcement" (6/8/99) contains useful support for "REACT belt" arguments. It is available from Amnesty International for $8.95, or visit their website at http://www.amnesty-usa.org.

See also Manual On Recurring Problems In Criminal Trials [14. Jurors Seeing Defendant In Handcuffs] Available to subscribers.  To become a subscriber, click here.

See also Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities]. Available to subscribers.  To become a subscriber, click here.

See also generally, FORECITE National™ 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.]. Available to subscribers.  To become a subscriber, click here.

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FORECITE National™

VOLUME 3 - CHAPTER 17

PRACTICE NOTE: Whenever the jury is given a cautionary instruction regarding security measures the instruction should remind the jurors of the presumption of innocence. (See e.g., Castillo v. Stainer (9th Cir. 1992) 983 F2d 145, 147; U.S. v. Milner (9th Cir. 1992) 962 F2d 908, 911-12; Jones v. Meyer (9th Cir. 1990) 899 F2d 883.)  This is so because one of the potential sources of prejudice for security measures is that the jury will convict based on its perception that the defendant is predisposed to commit crimes. (See e.g., Illinois v. Allen (1970) 397 US 337 [990 SCt 1057; 25 LEd2d 353].)

See Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities] Available to subscribers.  To become a subscriber, click here.

See also generally, FORECITE National™ 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.] Available to subscribers.  To become a subscriber, click here.

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VOLUME 3 - CHAPTER 17

PRACTICE NOTE: It has been suggested that cautionary instructions may, in some circumstances, be insufficient to cure the prejudice. (See e.g., Devitt, et al. Federal Practice and Instructions (1992 Ed.) § 5.05, p. 260 ["cautionary instruction simply emphasizes the defendant’s status as a prisoner"]; see also FORECITE National™ 297.3.2 [Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter].) Available to subscribers.  To become a subscriber, click here.

See Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities]. Available to subscribers.  To become a subscriber, click here.

See also generally, FORECITE National™ 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.] Available to subscribers.  To become a subscriber, click here.

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VOLUME 3 - CHAPTER 17

PRACTICE NOTE: There are conflicting views as to whether cautionary instructions on security measures should be given sua sponte (on the court's own motion.)

    People v. Duran (CA 1976) 16 C3d 282, 291-92 [127 CR 618] held that the trial court is required to instruct sua sponte that restraints should have no bearing on the determination of the defendant's guilt when such restraints are visible to the jury. (See also Thomas v. Nevada (NV 1978) 584 P2d 674, 677; State v. Roberts (NJ 1965) 206 A2d 200, 205; State v. Thompson (TN 1991) 832 SW2d 577, 581 [in cases involving the use of shackles in the view of the jury, a limiting instruction is a fundamental safeguard, and the trial court's duty to give such an instruction does not depend on a request by the defendant]; State v. Smith (TN 1982) 639 SW2d 677, 681; Willocks v. State (TN 1976) 546 SW2d 819, 822 [sua sponte duty to instruct that shackling should in no way influence the determination of guilt or innocence or the assessment of punishment].)

    On the other hand, there are situations where a defendant would not want the jury cautioned for strategic reasons. Consequently, some jurisdictions have specifically declined to impose upon the trial court the mandatory responsibility of giving such an instruction when the defendant fails to request one. (See Patterson v. Estelle (5th Cir. 1974) 494 F2d 37, 38; Wilson v. McCarthy (9th Cir. 1985) 770 F2d 1482, 1485; State v. Stewart (MN 1979) 276 NW2d 51, 63 ["decision to instruct the jury on the use of restraints is left with defense counsel. We believe this to be the better rule since any imposition of a requirement of sua sponte instructions by the trial court transfers the trial strategy from defense counsel to the trial judge"]; People v. Young (NY 1992) 586 NYS2d 805; State v. Paige (NC 1986) 343 SE2d 848, 858; State v. Cassel (WI 1970) 180 NW2d 607, 612.)

    In any event, regardless of whether the instruction is required sua sponte or only on request, it should not be given over objection. (See FORECITE National™ 17.1.8 [Courtroom Security: No Instruction Over Objection] Available to subscribers.  To become a subscriber, click here.)

See Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities] Available to subscribers.  To become a subscriber, click here.

See also generally, FORECITE National™ 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.] Available to subscribers.  To become a subscriber, click here.

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VOLUME 3 - CHAPTER 17

PRACTICE NOTE: A cautionary instruction regarding security measures should not be given over objection by defendant. Such an instruction may unduly emphasize the security measures and have an adverse impact on the trial strategy of defense counsel. Nevertheless, some cases such as People v. Duran (CA 1976) 16 C3d 282, 291-92 [127 CR 618] have held that the trial court is required to instruct sua sponte that restraints should have no bearing on the determination of the defendant's guilt when such restraints are visible to the jury. However, these cases should not preclude the defendant from affirmatively objecting to or waiving the instruction should counsel determine that it would unduly heighten the prejudice. (See FORECITE National™ 16.1.6 [Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice] [discussing whether jurors are capable of following cautionary and limiting instructions] Available to subscribers.  To become a subscriber, click here.) Such a limiting instruction is for the benefit of the defendant and therefore should be subject to waiver upon specific objection to the instruction. (See FORECITE National™ 4.3.2.3 [Cautionary/Limiting Instruction Should Not Be Given Over Defendant's Objection: Defendant May Waive "Beneficial" Instruction] Available to subscribers.  To become a subscriber, click here.)

See Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities] Available to subscribers.  To become a subscriber, click here.

See also generally, FORECITE National™ 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.] Available to subscribers.  To become a subscriber, click here.

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FORECITE National™

VOLUME 3 - CHAPTER 17

PRACTICE NOTE: The use of physical restraints or other security measures in the trial court cannot normally be challenged for the first time on appeal. (See People v. Majors (CA 1998) 18 C4th 385, 406 [75 CR2d 684].) The defendant's failure to object and make a record below waives the claim for appeal. (Ibid.; see also People v. Tuilaepa (CA 1992) 4 C4th 569, 583 [15 CR2d 382]; Gude v. State (GA 1994) 445 SE2d 355, 357 [when court entertains objection, and defense counsel makes none, the issue is not preserved for appeal].)

    See also FORECITE National™  4.1 [The Basic Rule: Instruction Issues Should Be Raised At Trial] Available to subscribers.  To become a subscriber, click here.

See Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities] Available to subscribers.  To become a subscriber, click here.

See also generally, FORECITE National™ 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.] Available to subscribers.  To become a subscriber, click here.

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VOLUME 3 - CHAPTER 17

PRACTICE NOTE: The refusal of a cautionary instruction regarding security measures may be federal constitutional error requiring a new trial. For example, if physical restraints are visible to the jury, then the failure to caution the jury regarding the restraints rises to the level of federal constitutional error for which the Chapman (Chapman v. California (1967) 386 US 18 [87 SCt 824; 17 LEd2d 705]) standard of prejudice applies. (See Duckett v. Godinez (9th Cir. 1995) 67 F3d 734, 748 [defendant denied due process when required to wear shackles in presence of sentencing jury]; People v. Jackson (CA 1993) 14 CA4th 1818, 1827-30 [18 CR2d 586]; Hicks v. State (GA 1991) 409 SE2d 82 [failure to instruct on the use of restraints was reversible error].)

See Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities] Available to subscribers.  To become a subscriber, click here.

See also generally, FORECITE National™ 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.].  Available to subscribers.  To become a subscriber, click here.

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