MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
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Part IV. Enforcement Of Orders During Trial - Part IV(F)  Disruptive Defendant

        Part IV(F)    Disruptive Defendant: General Principles
        Part IV(F) 1 Defendant Should Be Warned
        Part IV(F) 2 Options Available To Court
        Part IV(F) 3 Removal Of Defendant From Courtroom
        Part IV(F) 4 Shackling And Gagging Of Defendant

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

18.7.1 Disruptive Defendant: Cautionary/Limiting Instruction

A disruptive defendant may not be permitted by his or her behavior to obstruct the orderly progress of a trial.

Illinois v. Allen, 397 U.S. 337 (1970)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

Before taking action against a disruptive defendant, the court should warn the defendant of the consequences of his or her continued disruptive behavior.

Illinois v. Allen, 397 U.S. 337 (1970)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

After a disruptive defendant has been warned, the trial court has these options:

1. cite the defendant for contempt;

2. remove the defendant from the courtroom until the defendant promises to conduct himself or
    herself properly; or

3. permit the defendant to remain in court but have him or her bound and gagged.

Illinois v. Allen, 397 U.S. 337 (1970)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

The court may order the removal of a defendant from the courtroom if the defendant interrupts the proceedings. The court should state that the defendant may return anytime after he or she assures the court that there will be no further disturbance.

United States v. Munn, 507 F.2d 563 (10th Cir. 1974)
United States v. Kizer, 569 F.2d 504 (9th Cir. 1978)
Scurr v. Moore, 647 F.2d 854 (8th Cir. 1981)

If a defendant who is appearing pro se disrupts the proceedings, the court should first warn the defendant that if there is any further disruption the court will deny him or her the right to proceed pro se and will direct standby counsel to take over. If there is any further disruption, the court should direct standby counsel to take over. If the defendant continues to be disruptive, he or she may then be removed form the courtroom.

Badger v. Cardwell, 587 F.2d 968 (9th Cir. 1978)

If a defendant is removed from the courtroom, electronic arrangements should be made so that the defendant can hear the proceedings.

United States v. Munn, 507 F.2d 563 (10th Cir. 1974)

After being ejected, a disruptive defendant may reclaim the right to be present by assuring the court that he or she will not engage in inappropriate conduct.

Badger v. Cardwell, 587 F.2d 968 (9th Cir. 1978)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

If a defendant's behavior disrupts court proceedings, the court may keep the defendant in the courtroom and have him or her shackled or gagged, or both, in order to prevent a continuation of the disruptive behavior.

Bibbs v. Wyrick, 526 F.2d 226 (8th Cir. 1975)
United States v. Theriault, 531 F.2d 281 (5th Cir. 1976)    

In making the decision to shackle a defendant, the court may take into consideration the defendant's past conduct in the courtroom, prior escapes from custody, disruptive conduct in other proceedings, and prison disciplinary record.

United States v. Theriault, 531 F.2d 281 (5th Cir. 1976)

The court may not delegate the decision whether to shackle the defendant to the marshal, but may rely on the marshal's advice.

United States v. Apodaca, 843 F.2d 421 (10th Cir. 1988)

If the court orders that a defendant be shackled or shackled and gagged, the court must make a full statement on the record of the reasons for such action. The defendant and his or her counsel should be given an opportunity to respond to the reasons presented and to try to persuade the court that such measures are unnecessary.

United States v. Theriault, 531 F.2d 281(5th Cir. 1976)
United States v. Apodaca, 843 F.2d 421 (10th Cir. 1988)

If a defendant is shackled, the court should take precautions, such as bringing the defendant to the courtroom out of the presence of the jury, to ensure that any prejudicial effect is minimized.

United States v. Apodaca, 843 F.2d 421 (10th Cir. 1988)
Gilmore v. Armontrout, 861 F.2d 1061 (8th Cir. 1988)
United States v. Battle, 173 F.3d 1343 (11th Cir. 1999)

See Part II(C) 14 [Jury-Related Problems: Jurors Seeing Defendant In Handcuffs].