Chapter 17

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17.3 Courtroom Security: Miscellaneous Issues

    17.3.1 Shackling Or Physical Restraint Of Defense Witness Or Other Restraint Of Defense Witness
    17.3.2 Appearance Of Defendant In Prison Uniform Or Jail Clothing/Jail Clothes
    17.3.3 Presence Of Additional Security Personnel
    17.3.4 Cameras And Tape Recordings Ordered Forbidden From Courtroom
    17.3.5 Stand-Up Metal Detectors
    17.3.6 Shackling Or Physical Restraint Of Defense Witness Or Other Restraint Of Defense Witness: Propriety/Cautionary Instructions
    17.3.7 Courtroom Security: Self-Representation -- Exclusion Of Pro Se Defendant From Sidebar Conferences

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17.3.1 Shackling Or Physical Restraint Of Defense Witness: Propriety/Cautionary Instructions

RATIONALE: While shackling defense witnesses may be less prejudicial to the accused than shackling defendants, because it does not directly affect a presumption of innocence, it nevertheless 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.

POINTS AND AUTHORITIES: 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.)

While shackling defense witnesses may be less prejudicial to the accused than shackling defendants, because it does not directly affect a presumption of innocence, it nevertheless has the potential to harm the defendant by detracting from the witness's credibility. (See State v. Smith (NJ 2002) 787 A2d 276 [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].)

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. (See e.g., U.S. v. Tutino (2nd Cir. 1989) 883 F2d 1125; People v. Ayala (CA 2000) 23 C4th 225 [96 CR2d 682]; see also NCJICNational 17.4.3 [If The Court Orders Juror Anonymity, Cautionary Procedures And Instruction May Be Necessary].)

RESEARCH NOTES:

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

SAMPLE INSTRUCTION # 1:

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.

SAMPLE INSTRUCTION # 2:

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.

SAMPLE INSTRUCTION # 3:

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.

SAMPLE INSTRUCTION # 4:

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].]

SAMPLE INSTRUCTION # 5:

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 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.

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17.3.2 Appearance Of Defendant In Prison Uniform Or Jail Clothing/Jail Clothes

PRACTICE NOTE: "It is prejudicial for a defendant to be required to appear in court in a prison uniform." [Footnote omitted.] (Wharton’s Criminal Procedure (13th Ed. 1989) § 435, p. 855.)

RESEARCH NOTES:

Annotation, Propriety And Prejudicial Effect Of Compelling Accused To Wear Prison Clothing At Jury Trial -- Federal Cases, 26 ALR Fed. 535.

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

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17.3.3 Presence Of Additional Security Personnel

PRACTICE NOTE: Added security personnel in the courtroom may have the same adverse impact on the jury as physically restraining the defendant. For example, it has been held error to parade the defendant before the jurors accompanied by court officers. (People v. Lopez (NY 1994) 616 NYS2d 42). However, the presence of additional security personnel seated in the courtroom has been held to be nonprejudicial. (See Holbrook v. Flynn (1986) 475 US 560 [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].)

RESEARCH NOTES:

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

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17.3.4 Cameras And Tape Recordings Ordered Forbidden From Courtroom

RATIONALE: As with other security measures, the jury could prejudicially infer that the banning of cameras and tape recorders is a result of the defendant’s violent character or because defendant is guilty.

POINTS AND AUTHORITIES: As with to closing the courtroom or imposing security measures, the jury may speculate from the exclusion of cameras and tape recordings from the courtroom that there is a need for secrecy which is attributable to the defendant. (See generally NCJIC 17.1.2 [Courtroom Security: Sources Of Prejudice To The Defendant].) Accordingly, the best approach would be to affirmatively instruct the jury that the exclusion is for purposes of efficiency and to avoid distraction rather than the need for secrecy. (See NCJIC 17.1.4 [Instruction Should Inform Jury That Security Measures Are Normal Procedures].)

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

RESEARCH NOTES:

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

SAMPLE INSTRUCTION # 1:

You may have noticed that spectators have been prohibited from using cameras and tape recorders in this courtroom. The use of such electronic devices is prohibited because it might be distracting to you, the attorneys, the witnesses, and/or the court.

SAMPLE INSTRUCTION # 2:

As a matter of court policy, spectators are precluded from using cameras and tape recorders in the courtroom. This ban is a normal procedure used in every case. It has nothing to do with this defendant.

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17.3.5 Stand-Up Metal Detectors

RATIONALE: Because they may be prejudicial to the defendant in many ways, stand-up metal detectors should not be used without a showing of good cause. If good cause is shown, a cautionary instruction should inform the jury that the metal detectors are a normal procedure and have nothing to do with the defendant.

POINTS AND AUTHORITIES: It has been held that metal detectors may be used in court. For example, People v. Hayes (99) 21 C4th 1211, 1267-69 [91 CR2d 211] held that the trial court may order or allow the screening of all persons who enter the courtroom during jury selection and that such screening may include the use of hand-held metal detecting wands, patdown of outer clothing, examination of bags and purses for weapons, locking the courtroom door, and positioning an extra deputy in the courtroom with two additional deputies outside the courtroom. The Hayes court held that such procedures may be utilized without first holding a hearing as to whether the security measures are necessary. The court held that neither due process nor any other constitutional right of a criminal defendant require a hearing on the necessity for courtroom or courthouse security. The court relied on the fact that the use of security personnel is not so inherently prejudicial as to require justification by a state interest specific to trial. (See Holbrook v. Flynn (86) 475 US 560, 569 [106 SCt 1340; 89 LEd2d 525]; People v. Duran (76) 16 C3d 282, 291, fn 8 [127 CR 618]; see also People v. Jenkins (2000) 22 C4th 900, 995-97 [95 CR2d 377] [unlike shackling, security measures such as metal detectors or additional security personnel are not inherently prejudicial and need not be justified by compelling evidence of imminent threats to court security].)

Nevertheless, there are several sources of prejudice to the defendant when the jury becomes aware of security measures such as stand-up metal detectors. First, the jurors may conclude that the defendant is a dangerous person from whom the jury must be protected. Second, the metal detectors may suggest to the jury that the defendant could attempt to escape, thus implying a consciousness of guilt. Third, the very existence of security measures suggests to the jury that the court, who presumably ordered that the security measures be imposed, believes the defendant is guilty. Hence, although stand-up metal detectors may serve an important and necessary function, their presence may be prejudicial to the defendant.

This potential prejudice should require a showing of good cause for use of such devices. (See NCJIC 17.1.1 [Propriety Of Security].) And if they are used, an appropriate cautionary instruction should be given informing the jurors that these procedures are normal and are used in every case and do not reflect upon the individual defendant. (See NCJIC 17.4.3 [If The Court Orders Juror Anonymity, Cautionary Procedures And Instruction May Be Necessary]; see also U.S. v. Paccione (2nd Cir. 1991) 949 F2d 1183, 1192; U.S. v. Halliburton (9th Cir. 1989) 870 F2d 557.) For example, in People v. Mendez UNPUBLISHED (G011406), the court held that it is within the sound discretion of the trial court to utilize a stand-up metal detector at the door to the courtroom. At the same time, the court of appeal recognized the importance of giving an "extremely fair" admonition to the jury to not draw any adverse inferences from the presence of the metal detector was given. (See also People v. Jenkins (1987) 196 CA3d 394, 402 [241 CR 827] [instruction regarding the increase in courtroom security "would seem to have been appropriate upon request"].)

See also NCJIC 17.1.3 [Courtroom Security: Necessity Of Instruction].)

CAVEAT: As with most cautionary or limiting instructions, counsel will have to determine whether the benefits of the instruction outweigh the danger that it might unduly emphasize the prejudicial matter. (See NCJIC 17.2.2 [Shackling/Physical Restraint Of Defendant: Instructions].)

RESEARCH NOTES:

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

SAMPLE INSTRUCTION # 1:

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.

SAMPLE INSTRUCTION # 2:

    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 (CA 2000) 23 C4th 225, 251 [96 CR2d 682].]

SAMPLE INSTRUCTION # 3:

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.

SAMPLE INSTRUCTION # 4:

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.

SAMPLE INSTRUCTION # 5:

You must not consider the fact that there is a stand-up metal detector at the door to the courtroom. Such security measures are normal and should have no bearing on your determination of whether or not the defendant has been proven guilty beyond a reasonable doubt.

SAMPLE INSTRUCTION # 6:

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.

SAMPLE INSTRUCTION # 7:

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.

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17.3.6 Shackling Or Physical Restraint Of Defense Witness Or Other Restraint Of Defense Witness: Propriety/Cautionary Instructions

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.

While shackling defense witnesses may be less prejudicial to the accused than shackling defendants, because it does not directly affect a presumption of innocence, it nevertheless has the potential to harm the defendant by detracting from the witness's credibility. (See State v. Smith (NJ 2002) 787 A2d 276 [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.) 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.

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; see also People v. Duran (CA 1976) 16 C 3d 282, 291-292 [127 CR 618] [when visible restraints must be imposed the court shall instruct the jury sua sponte that such restraints should have no bearing on the determination of the defendant's guilt].)

RESEARCH NOTES:

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

SAMPLE INSTRUCTION # 1:

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 of whether the defendant has been proven guilty. It is a normal routine procedure 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.

SAMPLE INSTRUCTION # 2:

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.

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17.3.7 Courtroom Security: Self-Representation -- Exclusion Of Pro Se Defendant From Sidebar Conferences

PRACTICE NOTE: Exclusion of a pro se defendant from sidebar conferences may create the perception in the mind of the jury that the defendant is dangerous or not to be trusted. Even though a pro se defendant’s physical presence at sidebar conferences is not an absolute constitutional requirement, trial courts must "explore every avenue to ensure that defendants can participate in sidebars to the fullest extent possible without compromising courtroom security." (State v. Davenport (NJ 2003) 827 A2d 1063, 1075.) If it is determined that safety concerns preclude the defendant’s physical presence at sidebars, the trial court can make "minimal use of standby counsel as a conduit, by sending the jury to the jury room and having the discussion in open court" or could provide the defendant with a wireless listening device whereby he can sit at counsel table and listen to what is being discussed at sidebar. Additionally, the trial court must place in the record the security concerns that necessitate barring the defendant from sidebars. ( State v. Davenport, 827 A2d 1063, 1075.)