PG VII(I) Constitutional Grounds, Section 9

PG VII(I)(b) Grounds For All Cases—Capital and Non-Capital

TABLE OF CONTENTS
CG 9 Trial Procedures
CG 9.1 Public Trial
CG 9.2 Courtroom Security
CG 9.2.1 Anonymity Of Victim/Witness: Propriety Of Withholding Identity Of Witness From Defense
CG 9.2.2 Defendant In Jail Clothes
CG 9.3 Fair Opportunity To Defend
CG 9.4.1 Codefendants: Generally
CG 9.4.2 Misconduct By Co-Counsel
CG 9.5 Voir Dire
CG 9.6 Spectator Misconduct

Return to Constitutional Grounds Table of Contents.

CG 9 Trial Procedures.

CG 9.1 Public Trial.

[Use FORECITE CG 1.5.]

CG 9.2 Courtroom Security.

CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)

*Insert bold text into Points and Authorities:

This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)

Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by failing to assure the jurors will 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; Young v. Callahan (1st Cir. 1983) 700 F2d 32 [forcing defendant to sit in the prisoner’s dock throughout the trial without justification violates due process].)

If courtroom security is properly used, failure to give effective cautionary and limiting instructions will abridge the constitutional provision referenced in paragraph 1, above, 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.

(3) Courtroom security also implicates the defendant’s federal constitutional privilege against self-incrimination under the 5th and 14th Amendments by suggesting to the jury that the defendant may attempt to escape, thus improperly implying a consciousness of guilt. [See FORECITE CG 5.16.]

(4) Impairing the defendant’s ability to confer and communicate with counsel thus implicating the federal constitutional right to counsel (6th and 14th Amendments). (See Zygadlo v. Wainwright (11th Cir. 1983) 720 F2d 1221, 1223; Eaddy v. People (CO 1946) 174 P2d 717, 718.) [See also FORECITE CG 1.10.]

This request is also based on the 14th Amendment’s Due Process Clause which is violated by:

(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]

(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITE CG 6.4.]

Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]

If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE (PG VII(I)(c)][Constitutional Grounds: Death Penalty].)

CG 9.2.1 Anonymity Of Victim/Witness: Propriety Of Withholding Identity Of Witness From Defense.

(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)

*Insert bold text into Points and Authorities:

Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by implying the defendant is guilty and a dangerous person. (See Alvarado v. Superior Court (2000) 23 C4th 1121, 1135-36; see also Estelle v. Williams (1976) 425 US 501, 504-505 [circumstances which imply the defendant’s guilt undermines the presumption of innocence]; Felts v. Estelle (9th Cir. 1989) 875 F2d 785 [same].) [See FORECITE CG 9.2.]

This request is also based on the 14th Amendment’s Due Process Clause which is violated by:

(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]

CG 9.2.2 Defendant In Jail Clothes.

(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)

*Insert bold text into Points and Authorities:

Forcing a defendant to stand trial in jail clothing or imposing physical restraints may violate the Due Process and the 6th Amendment right to trial by jury by undermining the presumption of innocence. (Estelle v. Williams (1976) 425 US 501, 504-505; see also Felts v. Estelle (9th Cir. 1989) 875 F2d 785 [failure to provide indigent pro per defendant with suitable civilian clothing until six days after trial began violated the Due Process Clause and the presumption of innocence].)

[See also FORECITE CG 9.2.]

This request is also based on the 14th Amendment’s Due Process Clause which is violated by:

(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]

CG 9.3 Fair Opportunity To Defend.

See FORECITE CG 4.6; see also FORECITE CG 4.1, 4.3, and 5.3.

CG 9.4.1 Codefendants: Generally.

See FORECITE CG 2.7.

CG 9.4.2 Misconduct By Co-Counsel.

(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)

*Insert bold text into Points and Authorities:

Actions of counsel for a codefendant may violate a defendant’s constitutional rights. (See e.g., United States v. Al-Muqsit (8th Cir. 1999) 191 F3d 928 [comment by codefendant’s counsel regarding defendant’s failure to testify violated defendant’s right to a fair trial, if not the 5th Amendment privilege against self incrimination]; United States v. Mayfield (9th Cir. 1999) 189 F3d 895 [defendant was denied his 6th Amendment right to confront the witnesses against him by the codefendant elicitation of a police officer’s inculpatory testimony about a reliable police informant and by the introduction of the codefendant’s out-of-court statement against defendant]; People v. Estrada (1998) 63 CA4th 1090 [outrageous and continuous misconduct by codefendant’s counsel violated defendant’s right to due process].)

This request is also based on the 14th Amendment’s Due Process Clause which is violated by:

(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]

CG 9.5 Voir Dire.

(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)

*Insert bold text into Points and Authorities:

Although a trial judge has broad latitude in structuring and conducting voir dire, a defendant’s 6th Amendment right to an impartial jury and 14th Amendment right to due process requires that the court ask sufficient questions during voir dire so that “fundamental fairness” is guaranteed. (Mu’min v. Virginia (1991) 500 US 415, 114 L.Ed.2d 493; Turner v. Murray (1986) 476 US 28, 36, n. 9; People v. Wilborn (1999) 70 CA4th 339; Britz v. Thieret (7th Cir. 1991) 940 F2d 226, 232).)

Comments by the trial court during jury selection may violate a defendant’s rights to a fair and impartial jury and due process of law as well. (See, e.g., People v. Mello (2002) 97 CA4th 511 [direction to prospective jurors that, if they harbored racial bias against the African American defendant, they should lie under oath and make up some other reason to be excused, was grave error and violated due process].)

The erroneous limitation or impairment of the exercise of peremptory challenges or challenges for cause may violate the 6th Amendment right to an impartial trial and/or the Due Process Clause of the 14th Amendment. “Although peremptory challenges are not constitutionally required, due process may be violated by a system of challenges that is skewed toward the prosecution if it destroys the balance needed for a fair trial.” (United States v. Harbin (7th Cir. 2001) 250 F3d 532; United States v. Nelson (2nd Cir. 2002) 277 F3d 164; VanSickel v. White (9th Cir. 1999) 166 F3d 953; United States v. Underwood (7th Cir. 1997) 122 F3d 389; Ross v. Oklahoma (1988) 487 US 81.)

The failure to excuse biased jurors for cause violates the Due Process Clause and the 6th Amendment right to a fair trial before an impartial jury. (Dyer v. Calderon (9th Cir. 1998) (en banc)151 F3d 970; Mach v. Stewart (9th Cir. 1997) 129 F3d 495; Johnson v. Armontrout (8th Cir. 1992) 961 F2d 748; Burton v. Johnson (10th Cir. 1991) 948 F2d 1150.)

The Equal Protection and Due Process Clauses prohibit a prosecutor from excluding qualified and unbiased persons from the jury on the grounds of race or sex, regardless of defendant’s race and sex. (Batson v. Kentucky (1986) 476 US 79; Powers v. Ohio (1991) 499 US 400; J.E.B. v. Alabama (1994) 511 US 127; McClain v. Prunty (9th Cir. 2000) 217 F3d 1209; Turner v. Marshall (9th Cir. 1997) 121 F3d 1248.)

This request is also based on the 14th Amendment’s Due Process Clause which is violated by:

(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]

CG 9.6 Spectator Misconduct.

(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)

*Insert bold text into Points and Authorities:

Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by allowing spectator misconduct to violate the defendant’s right to a fair trial. (See e.g., Woods v. Dugger (11th Cir. 1991) 923 F2d 1454; Norris v. Risley (9th Cir. 1990) 918 F2d 828.)