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17.1 Courtroom Security: General Principles

    17.1.1 Propriety of Security
    17.1.2 Courtroom Security: Sources Of Prejudice To The Defendant
    17.1.3 Courtroom Security: Necessity Of Instruction
    17.1.4 Instruction Should Inform Jury That Security Measures Are Normal Procedures
    17.1.5 Courtroom Security: Necessity Of Repeating Presumption Of Innocence
    17.1.6 Courtroom Security: Effectiveness Of Instruction
    17.1.7 Courtroom Security: Request Or Sua Sponte
    17.1.8 Courtroom Security: No Instruction Over Objection
    17.1.9 Courtroom Security: Lack of Objection May Waive Issue For Appeal
    17.1.10 Making The Record To Show Prejudice From Courtroom Security
    17.1.11 Failure To Instruct Upon Security Measures: Standard of Prejudice

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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.)

See 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].

See also generally, NCJIC 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.].

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PRACTICE NOTE: There are several sources of prejudice to the defendant when the jury becomes aware of security measures.

    First, "the constitutional presumption of innocence may be undermined by the physical indicia of guilt..." (U.S. v. Childress (DC Cir. 1995) 58 F3d 693, 704.) The jurors may assume, from the use of security measures, that the defendant is a dangerous person. (See, e.g., U.S. v. Thomas (2nd Cir. 1985) 757 F2d 1359, 1364-65; U.S. v. Scarfo (3rd Cir. 1988) 850 F2d 1015, 1021-23.) This may undermine the presumption of innocence because the jury may rely on the defendant’s assumed bad character and propensity to commit violent crimes to convict even in the absence of proof beyond a reasonable doubt as to the defendant’s guilt of the charged crime. (See Illinois v. Allen (1970) 397 US 337, 344 [90 SCt 1057; 89 LEd2d 525] [shackling of defendant is likely to lead jurors to infer that he or she is a violent person disposed to commit crimes of the type alleged]; see also Estelle v. Williams (76) 425 US 501, 512 [96 SCt 1691; 48 LEd2d 126] [trial in prison garb is unconstitutional]; Spain v. Rushen (9th Cir. 1989) 883 F2d 712, 715, 721.)

    Second, security measures suggest to the jury that the defendant may attempt to escape, thus implying a consciousness of guilt. "'It is universally conceded today that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.' [Citation to Wigmore, Evidence.]" (U.S. v. Clark 8th Cir. 1995) 45 F3d 1247, 1250; see also NCJIC 34.2.1 [Consciousness Of Guilt Requires A Logical Chain Of Inferences].) Thus, as a matter of common sense, jurors will be likely to conclude that, if the defendant is an escape risk, the defendant is more likely to be guilty. (See generally NCJIC 34.3 [Flight].)

    Third, the very existence of security measures suggests to the jury that the judge, who presumably ordered that the security measures be imposed, believes the defendant is guilty. This is effectively a comment on the evidence by the judge which further undermines the presumption of innocence. Any comment by the court indicating belief in the defendant's guilt is highly prejudicial. (See NCJIC 16.14.3.5 [No Inference From Rulings Of The Court: Cautionary Instruction]; NCJIC 297.6.1 [Whether Inconsistent Verdicts Can Be Overturned On Appeal].)

    Communication between the defendant and counsel is an essential underpinning of the 6th Amendment right to counsel. "[T]he unjustified use of restraints could, in a real sense, impair the ability of the defendant to communicate effectively with counsel." (People v. Fierro (CA 1991) 1 C4th 173, 220 [3 CR2d 426]; see also Spain v. Rushen (9th Cir. 1989) 883 F2d 712, 721.)

    See also NCJIC 300.27.1 [Trial].

    Restraints also offends the confrontation clause and the right to a fair jury by impairing the defendant's ability to confront the prosecution witness. (Illinois v. Allen (1970) 397 US 337, 338 [90 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].

See also generally, NCJIC 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.].

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PRACTICE NOTE: If security measures such as shackling are apparent to the jury a cautionary instruction may be appropriate. (See e.g., People v. Duran (CA 1976) 16 C3d 282, 291-92 [127 CR 618].)

See Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities].

See also generally, NCJIC 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.].

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RATIONALE: A major source of prejudice from security measures stems from the likelihood that the jury will assume the security is directed toward the individual defendant who is on trial. Therefore, to be effective, a cautionary instruction should attempt to convince the jurors that the security measures are normal procedures in cases of this sort.

POINTS AND AUTHORITIES: See NCJIC 17.4.3 [If The Court Orders Juror Anonymity, Cautionary Procedures And Instruction May Be Necessary].

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

See Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities].

See also generally, NCJIC 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.].

    Ladies and gentlemen of the jury, as you can see [the defendant is shackled] [there are extra bailiffs] [__________]. 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 the [shackling] [extra bailiffs] [__________] 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] [extra bailiffs] [__________] 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.

    It is my policy to have everyone except jurors pass through a metal detector before entering the courtroom.

    Therefore, you can expect that a metal detector will be placed outside the courtroom when the trial begins, and it will remain throughout the course of the trial.

    The practices of other judges in this courthouse differ from courtroom to courtroom. You should not view the presence of a metal detector outside this courtroom, or the absence of one outside other courtrooms, as a reflection on either party or any of the witnesses.

    It is solely a matter of my personal policy.

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

    The fact that there was courtroom security during the trial is not to be discussed or considered by you. Such security measures are normal and routine and must not have any bearing on your determination of whether or not the defendant has been proven guilty beyond a reasonable doubt.

    You are undoubtedly aware of the security measures employed inside and outside the courtroom, such as screening people before they enter and the presence of [deputies] [bailiffs] [security personnel]. Such security measures are normal procedures which are routinely used in every case. They have nothing to do with the defendant or witnesses in this case. You must not discuss, or consider for any purpose, such security measures.

    You must not discuss or consider the fact that there was courtroom security 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.    

    You must not consider the fact that there are [metal detectors] [security devices] at the entrance to the [courtroom] [courthouse]. Such security measures are normal procedures which are used in every case. They have nothing to do with the defendant or witnesses in this case. You must not allow them to have any bearing on your determination of whether or not the defendant has been proven guilty beyond a reasonable doubt.

    You must not consider the fact that there are [metal detectors] [security devices] at the entrance to the [courtroom] [courthouse]. These security measures reflect the court's personal policy, and have nothing to do with the defendant or witnesses in this case. You must not allow the use of security measures to have any bearing whatsoever on your determination of whether or not the defendant has been proven guilty beyond a reasonable doubt.

[Source: NCJIC.]

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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].

See also generally, NCJIC 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.].

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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 NCJIC 297.3.2 [Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter].)

See Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities].

See also generally, NCJIC 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.].

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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 NCJIC 17.1.8 [Courtroom Security: No Instruction Over Objection].)

See Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities].

See also generally, NCJIC 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.].

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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 NCJIC 16.1.6 [Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice] [discussing whether jurors are capable of following cautionary and limiting instructions].) 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 NCJIC 4.3.2.3 [Cautionary/Limiting Instruction Should Not Be Given Over Defendant's Objection: Defendant May Waive "Beneficial" Instruction].)

See Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities].

See also generally, NCJIC 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.].

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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 NCJIC 4.1 [The Basic Rule: Instruction Issues Should Be Raised At Trial].

See Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities].

See also generally, NCJIC 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.].

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PRACTICE NOTE: The defendant should be allowed to make a record showing prejudice from shackling. (See Rhoden v. Rhoden (9th Cir. 1993) 10 F3d 1457, 1460.)

    See NCJIC 2.5.6 [Sufficiency Of Record On Appeal To Present Instructional Error To Reviewing Court].

    See also NCJIC 2.5.7 [Making Appellate Record As To Matters Which Cannot Be Recorded By Court Reporter].

See Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities].

See also generally, NCJIC 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.]

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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].

See also generally, NCJIC 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.].