FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 3 - CHAPTER 17
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17.2 Shackling And Physical Restraint Of Defendant In Courtroom

    17.2.2 Shackling/Physical Restraint Of Defendant: Instructions

    17.2.2.1 Instruction That Shackling Is Routine Practice Not Related To Defendant

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 3 - CHAPTER 17

    17.2.2.1    Instruction That Shackling Is Routine Practice Not Related To Defendant

RATIONALE: 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 defendant.

POINTS AND AUTHORITIES: (See FORECITE National™ 17.4.3 [If The Court Orders Juror Anonymity, Cautionary Procedures And Instruction May Be Necessary]; see also 20 California Attorneys For Criminal Justice FORUM No. 2 at p. 42, fn 16.)

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.)

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

See Manual On Recurring Problems In Criminal Trials [14. Jurors Seeing Defendant In Handcuffs].

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

See also generally, FORECITE National™ 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. 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.