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VOLUME 3 - CHAPTER 16
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16.12 Disruptive Spectators In The Courtroom

    16.12.1 Removal Of Disruptive Spectator: Cautionary Instruction
    16.12.2 Improper To Clear Courtroom In Response To Outburst By Single Spectator
    16.12.3 Remarks Of Spectators: Cautionary Instruction

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RATIONALE: The defendant may be prejudiced if the jury concludes a disruptive spectator is associated with the defendant. Hence, a cautionary instruction may be appropriate.

POINTS AND AUTHORITIES: As with disruptive conduct on the part of the defendant (see NCJIC 18.7 [Disruptive Defendant]), the jury may be influenced by the removal of a disruptive spectator from the courtroom. "Due process requires that the accused receive a fair trial by an impartial jury free from outside influences." (Shepard v. Maxwell (1966) 384 US 333, 362 [86 SCt 1507, 16 LEd2d 600]; see also Irvin v. Dowd (1961) 366 US 717, 722 [81 SCt 1639, 6 LEd2d 751] [right to be tried "by a panel of impartial ‘indifferent’ jurors [whose] verdict must be based upon the evidence developed at trial"]; Norris v. Risley (9th Cir. 1990) 918 F2d 828, 833 [presence of women wearing "Women Against Rape" buttons constituted "informal accusation [which] was not susceptible to traditional methods of refutation"]; Woods v. Dugger (11th Cir. 1991) 923 F2d 1454, 1459-60 [presence of correctional officers in audience during trial conveyed message to jury that officers wanted defendant convicted and sentenced to death].)

   If a person in the courtroom, who is not a participant, engages in behavior which prejudices the defendant, the defendant’s federal constitutional rights to due process and trial by jury (5th, 6th and 14th Amendments) are implicated by an impermissible erosion of the presumption of innocence. (See Norris v. Risley (9th Cir. 1990) 918 F2d 828, 834.) Moreover, the defendant’s federal constitutional rights to confront and cross-examine witnesses (6th and 14th Amendments) are also implicated. (Ibid.)

    Additionally, if the jurors believe that the removed person is associated with the defendant this may cause the jury, by association, to conclude that the defendant is potentially dangerous. (See e.g., NCJIC 34.5.2 [Suppression Or Fabrication Of Evidence By Third Party: Requirement That Defendant Authorized The Third Party's Conduct]; see also NCJIC 17.1.2 [Courtroom Security: Sources Of Prejudice To The Defendant].)

    A curative instruction may be requested as a fall back position if the mistrial motion is denied. (See State v. Lozada (NJ 1992) 608 A2d 407, 415 [court issued curative instruction]; U.S. v. Petary (8th Cir. 1988) 857 F2d 458, 463 [court promptly admonished jury to disregard remarks]; see also NCJIC 16.12.3 [Remarks Of Spectators: Cautionary Instruction].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 7.3; 7.5].

PRACTICE NOTE: Making the record. Obviously, the conduct of the spectators will normally not be a part of the record. Hence, when objecting, counsel should "make a record of exactly what happened in the courtroom and why those actions prejudiced [the defendant]. For example, if there was an outburst from a member of the audience, describe for the record what was said, by whom, how loudly, how it must have been heard by the jury, the jurors’ reactions, and why the event was particularly prejudicial to [the defendant]." (Hollander & Bergman, Everytrial Criminal Defense Resource Book (West 1999) 8:2, p. 8-3.) An example of such a description may be found in Messer v. Kemp (11th Cir. 1985) 760 F2d 1080, 1086.

RESEARCH NOTE:

Annotation, Emotional Manifestations By Victim Or Family Of Victim During Criminal Trial As Ground For Reversal, New Trial, Or Mistrial, 31 ALR4th 229.

    Certain spectators have been removed because of their conduct.  Do not permit such conduct by the spectators to affect your judgment as to the merits of the case.

[See generally Irvin v. Dowd (1961) 366 US 717 [81 SCt 1639, 6 LEd2d 751]; Woods v. Dugger (11th Cir. 1991) 923 F2d 1454; Messer v. Kemp (11th Cir. 1985) 760 F2d 1080.]

SAMPLE INSTRUCTION # 2: [Outburst By Family Member Of Victim]:

    Ladies and gentlemen of the jury the outburst which you observed during the testimony of ________________ as you know (because he testified in the beginning of the case) was (caused by] the father of the deceased child involved in this case. He was allowed to stay in the courtroom because he had requested to stay in the courtroom after his testimony. It is not unusual for family members to be allowed to see and observe a trial. From his testimony obviously he knows nothing about the facts that relate to any guilt or innocence* of the defendant and his outburst should have no weight whatsoever with your determination as to the guilt or innocence of this defendant. You are to act only on the evidence as produced to you either by physical evidence or from sworn testimony from the stand and not from any outburst by a member of the family of anyone who is deceased or is the recipient of a crime. Now I would like to know if there are any of you who feel this would in any manner bother you or affect you in acting as a juror under the instructions of the court at the end of this trial? Are there any who have any feelings whatsoever, and I want you to be very frank and candid with me on this. If you feel that it might in any manner affect your consideration of the case I would like for you to let me know. (No response from the jurors).

    I’m going to ask you then to disregard completely any passion or demonstrations shown by this father and I will charge you again at the end of the case, but I now want you to determine that your verdict will not in any manner be affected by any outburst in the courtroom.

* But see NCJIC 270.2.12 ["Guilt Or Innocence" Comparison Undermines Presumption Of Innocence].

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PRACTICE NOTE: A clearing of the entire courtroom in response to an outburst by a single spectator is improper. (See e.g., State v. Ware (MN 1993) 498 NW2d 454, 458 [only the disruptive spectators should have been removed, a clearing of the courtroom was not necessary].)

    See also NCJIC 17.7.4 [Closing Of Courtroom].

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Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 3 - CHAPTER 16

RATIONALE: Jurors are to decide the case based upon the evidence admitted and may not consider statements or comments from spectators.

POINTS AND AUTHORITIES: The jury may be exposed to potentially prejudicial comments or statements from spectators in the courtroom. To assure that the jury understands that such statements or comments are not evidence and to remind the jury that the case should be decided based on the evidence and nothing else, a cautionary instruction may be appropriate. (See NCJIC 16.12.1 [Removal Of Disruptive Spectator: Cautionary Instruction].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 7.3; 7.5].