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Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 18 - CHAPTER 309

Macro 309.9      Trial Procedures

    Macro 9.1   Public Trial
    Macro 9.2   Courtroom Security
    Macro 9.3   Fair Opportunity To Defend

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

VOLUME 18 - CHAPTER 309

    This instruction is required by the federal constitutional right to a public trial (6th and 14th Amendments) which requires that all proceedings be open to the public unless good cause for closure is shown or the defense waives the public trial right. (Waller v. Georgia (1984) 467 US 39, 49, n 9 [107 SCt 2210; 81 LEd2d 31]; cf. McKaskle v. Wiggins (1984) 465 US 168, 177-178, fn 8 [104 SCt 944; 79 LEd2d 122]; see also English v. Artuz (2nd Cir. 1998) 164 F3d 105; Braun v. Powell (7th Cir. 2000) 227 F3d 908, 917-20; Wharton’s Criminal Procedure (13th Ed. 1989) § 391.)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: FORECITE National™ Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also FORECITE National™ Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for FORECITE National™ Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See FORECITE National™ 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See FORECITE National™ 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    309.9.2    Courtroom Security

    This instruction is required by the federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments) which require that the trial jurors be fair and unbiased.  (McDonough Power Equipment, Inc. v. Greenwood (1984) 464 US 548, 554 [104 SCt 845; 78 LEd2d 663]; Patton v. Yount (1984) 467 US 1025, 1031-35 [104 SCt 2885; 81 LEd2d 847].) These rights also require the prosecution to prove every essential fact and element of the charge beyond a reasonable doubt. (See Neder v. U.S. (1999) 527 US 1 [119 SCt 1827; 144 LEd2d 35] ; In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368].)

    These rights are implicated if the imposition of security measures shifts or lessens the prosecution’s burden of proof by suggesting to the jury that the court believes the defendant is guilty or prejudices the jury against the defendant by implying that he/she is an escape or security risk or is dangerous.

    Courtroom security procedures which are utilized without an adequate showing of need implicate the federal constitution. Both the due process clause (5th and 14th Amendments) and the confrontation clause (6th and 14th Amendments) of the federal constitution 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; 25 LEd2d 353]; see also 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]; Spain v. Rushen (9th Cir. 1989) 883 F2d 712, 721.)

    If courtroom security is properly used the failure to give effective cautionary and limiting instructions implicates the defendant’s federal constitutional rights under the Fifth, Sixth and Fourteenth Amendments to due process and a fair trial by jury by:

    1.    Undermining the presumption of innocence if the jury relies 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; 25 LEd2d 353] [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 (1976) 425 US 501, 512 [96 SCt 1691; 48 LEd2d 126] [state may not compel an accused to stand trial in prison garb]; U.S. v. Childress (DC Cir. 1995) 58 F3d 693, 704-05.)

    2.    Eroding the fairness and impartiality of the trial by suggesting that the judge, who presumably ordered that the security measures by imposed, believes the defendant is guilty. (See FORECITE National™ Constitutional Macro 5.4 [Instructions That Express An Opinion About The Guilt Of The Defendant].)

    3.    Prejudicing the defendant in the eyes of the jury by implying that he/she is a dangerous person.

    4.    Courtroom security also implicates the defendant’s federal constitutional privilege against self-incrimination under the Fifth and Fourteenth Amendments by suggesting to the jury that the defendant may attempt to escape, thus improperly implying a consciousness of guilt. (See FORECITE National™ 17.1.2 [Courtroom Security: Sources Of Prejudice To The Defendant].)

    5.    Impairing the defendant's ability to confer and communicate with counsel thus implicating the federal constitutional right to counsel (6th and 14th Amendments). (See FORECITE National™ 300.27.1.2 [Right To Communication With Counsel At Trial]; see also Zygadlo v. Wainwright (11th Cir. 1983) 720 F2d 1221, 1223; Eaddy v. People (CO 1946) 174 P2d 717, 718.)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: FORECITE National™ Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also FORECITE National™ Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for FORECITE National™ Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See FORECITE National™ 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See FORECITE National™ 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    309.9.3    Fair Opportunity To Defend

    The fundamental fairness guarantee of the Due Process Clause (5th and 14th Amendments) requires that the defendant be afforded a full and fair trial in which there is a fair opportunity to defend. (See e.g., Michelson v. United States (1948) 335 US 469, 476 [69 SCt 213; 93 LEd2d 168] [character evidence denied defendant a "fair opportunity to defend"]; see also Jackson v. Virginia (1979) 443 US 307, 314 [99 SCt 2781; 61 LEd2d 560]; Chambers v. Mississippi (1973) 410 US 284, 294 [93 SCt1038; 35 LEd2d 297]; Strickland v. Washington (1984) 466 US 668 [104 SCt 2052; 80 LEd2d 674] [ineffective counsel inquiry turns on "the fundamental fairness of the proceeding whose result is being challenged]; Cooper v. Oklahoma (1996) 517 US 348, 369 [116 SCt 1373; 134 LEd2d 498] ["fundamental fairness"]; State v. Thomas (NJ 1991) 586 A2d 250, 253 [fundamental fairness demanded DNA testing].)

    The Supreme Court has long emphasized the federal Constitution's "overriding concern with the justice of the finding of guilt." (United States v. Agurs (1976) 427 US 97, 112 [96 SCt 2392; 49 LEd2d 342].) In particular, the Due Process Clause guarantees for every defendant the right to a trial that comports with basic tenets of fundamental fairness. (Lassiter v. Department of Soc. Servs. (1981) 452 US 18, 24-25 [101 SCt 2153; 68 LEd2d 640]; see also Turner v. Louisiana (1965) 379 US 466, 471-72 [85 SCt 546; 13 LEd2d 424]; In re Murchison (1955) 349 US 133, 136 [75 SCt 623; 99 LEd2d 942].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: FORECITE National™ Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also FORECITE National™ Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for FORECITE National™ Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See FORECITE National™ 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See FORECITE National™ 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.