F 204 Defendant Physically Restrained

SERIES 200 POST-TRIAL: INTRODUCTORY

F 204 Defendant Physically Restrained

TABLE OF CONTENTS
F 204 Inst 1 Consideration Of Effect Of Physical Restraints On Defendant’s Demeanor
F 204 Inst 2 (a-g) Cautionary Instruction Regarding Physical Restraints
F 204 Inst 3 (a-f) Cautionary Instruction: Courtroom Security
F 204 Inst 4 Courtroom Security: Necessity Of Repeating Presumption Of Innocence

Return to Series 200 Table of Contents.

F 204 Inst 1 Consideration Of Effect Of Physical Restraints On Defendant’s Demeanor

*Add to CC 204:

However, you may consider the effect of the physical restraints on the defendant’s demeanor [while testifying] [and] [in the courtroom].

The physical restraints may have made it more difficult for the defendant to appear natural and relaxed.

Points and Authorities

It is improper for the judge to imply that the jurors must reach a decision. (See FORECITE F 100.7 Inst 1; but see People v. Anderson (2007) 152 CA4th 919, 929.)

Identification Of Parties – See FORECITE F 100.2 Note 1.

WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 204 Inst 2 (a-g) Cautionary Instruction Regarding Physical Restraints

*Replace CC 204 with:

Alternative a:

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.

Alternative b:

You must not discuss or consider the fact that the defendant was 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.

Alternative c:

It is my policy to have the defendant restrained during the trial.

Therefore, you can expect that the defendant will be restrained when the trial begins, and will be so 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 restraints in this courtroom, or the absence of restraints in 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 [adapted for shackling].]

Alternative d:

The fact that the defendant was restrained 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.

Alternative e:

You are undoubtedly aware that the defendant is restrained. 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.

Alternative f:

You must not consider the fact that the defendant is restrained. 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.

Alternative g:

You must not consider the fact that the defendant is restrained. 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.

Points and Authorities

CALCRIM 204 is inadequate in that it does not make any effort to dilute the possible conclusion that the jurors may draw regarding the defendant‘s dangerousness. It should be replaced with one of the samples above.

Propriety Of Using Physical Restraints On Defendant—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; Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 2012) § 75:1).)

Sources Of Prejudice—There are several sources of prejudice to the defendant when the jury becomes aware of security measures.

A. Undermining Of Presumption Of Innocence By Disparagement Of Defendant’s Character

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 (1976) 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.)

B. Consciousness Of Guilt

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.) 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 CALCRIM 105.)

C. Trial Judge‘s Comment On Defendant‘s Guilt

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 FORECITE CG 5.4.1 and 5.4.2].)

D. Impairment Of Defendant‘s Ability To Communicate With Counsel

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 (1991) 1 C4th 173, 220; see also Spain v. Rushen (9th Cir. 1989) 883 F2d 712, 721.)

E. Rights To Confrontation And A Fair Jury

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].)

Necessity Of Instruction— If security measures such as shackling are apparent to the jury a cautionary instruction may be appropriate. (See e.g., People v. Duran (1976) 16 C3d 282, 291-92.)

Reference To Restraints As Routine, Normal Or Customary—See FORECITE F 101.1 Inst 1.

Identification Of Parties—See FORECITE F 100.2 Note 1.

WARNING! Federal constitutional claims may be lost without proper federalization— To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 9.2 [Courtroom Security]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

CAVEAT: The decision whether to request such an instruction requires careful evaluation as to whether it will unduly emphasize the factor sought to be limited. (See FORECITE PG X(E)(19)(2) and PG X(E)(19)(3).) On the other hand, the above referenced CACJ 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 CACJ FORUM # 2 at p. 42.)

NOTES

Failure to Instruct Upon Shackling: Standard Of Prejudice—(See FORECITE F 204 Note 4; F 204 Note 7.)

Instruction Regarding Courtroom Security—See FORECITE F 204 Inst 3 for instructions regarding courtroom security.

CALJIC NOTE: See FORECITE F 1.04a.

F 204 Inst 3 (a-f) Cautionary Instruction: Courtroom Security

Sample Instruction a:

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.

[Source: Adapted from People v. Ayala (2000) 23 C4th 225, 251].

Sample Instruction b:

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 c:

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 d:

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.

[Source: Adapted from an example in a CACJ article by Howard W. Gillingham. (See 20 CACJ Forum No. 2 at p. 42, fn 16.)]

Sample Instruction e:

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 f:

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.

Points and Authorities

Propriety Of Courtroom Security Procedure— People v. Hayes (1999) 21 CA4th 1211, 1267-69, 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 requires 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 (1986) 475 US 560, 569 [89 LEd2d 525; 106 SCt 1340]; People v. Duran (1976) 16 CA3d 282, 291, fn 8; see also People v. Jenkins (2000) 22 CA4th 900, 995-97 [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].)

Propriety Of Instructions—The California Supreme Court has authorized cautionary instructions on courtroom security: “We emphasize that the trial court should give such a cautionary instruction when the defendant requests it, or should explain on the record the reasons why it has been refused.” (People v. Hernandez (2011) 51 CA4th 733, 744; see also People v. Stevens (2009) 47 CA4th 625, 642 [“…although we impose no sua sponte duty for it to do so, the court should consider, upon request, giving a cautionary instruction, either at the time of the defendant’s testimony or with closing instructions, telling the jury to disregard security measures related to the defendant’s custodial status. [Citation]].”) Similarly, in People v. Jenkins (1987) 196 CA3d 394, 402, the court—though finding no sua sponte duty to instruct the jury regarding an increase in courtroom security—observed that such an instruction “would seem to have been appropriate upon request.” (Ibid.; cf. U.S. v. Halliburton (9th Cir. 1989) 870 F2d 557, 560.)

Moreover, in crafting such an instruction counsel may seek to inform the jurors that the security procedures are normal, used in every case and do not reflect upon the individual defendant. (See, e.g., People v. Goodwin (1997) 59 CA4th 1084, 1091, fn3 [suggesting that the jurors should be admonished that anonymous jury procedure is required in all criminal cases and has nothing to do with any particular defendant]; see also People v. Jenkins (2000) 22 CA4th 900, 996-97 [security devices not prejudicial where jury considered them routine or, at most, necessary to maintain order among the spectators]; U.S. v. Paccione (2nd Cir. 1991) 949 F2d 1183, 1192; U.S. v. Halliburton (9th Cir. 1989) 870 F2d 557; cf., Musladin v. Lamarque (4/8/2005, 9th Cir. No. 03-16653) 403 F3d 1072 [allowing spectators to wear buttons depicting the decedent interfered with right to a fair trial by impartial jury free from outside influences].)

See also FORECITE F 101.1 Inst 1 and Inst 2.

Reference To Normal, Customary Or Routine Procedure—See FORECITE F 101.1 Inst 1.

Identification Of Parties—See FORECITE F 100.2 Note 1.

FORECITE CG 9.2 [Courtroom Security]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

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 FORECITE F 2.002a.] (See also CAVEAT to FORECITE F 204 Inst 2.)

NOTES

See also FORECITE F 204 Inst 2 for instruction regarding physical restraints and/or increased courtroom security.

Stand-Up Metal Detectors— 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 appeals recognized that 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. Ayala (2000) 23 C4th 225, 253 [trial court instructed jury to draw no adverse inferences from use of metal detector, and that it was a matter of the court’s personal policy and not a reflection upon the defendant or the witnesses]; but see CAVEAT regarding the potential danger that such cautionary instructions will unduly emphasize the prejudicial matter (F 2.002a).)

CALJIC NOTE: See FORECITE F 2.008a.

F 204 Inst 4 Courtroom Security: Necessity Of Repeating Presumption Of Innocence

*Add at end of courtroom security instruction:

Please remember the presumption of innocence. You must consider the defendant to be not guilty and vote to acquit (him/her) unless the prosecution has proven every [essential fact and] element of the charge beyond a reasonable doubt by properly admitted evidence.

The [restraint of defendant] [courtroom security] has no bearing whatsoever on whether the prosecution [has met] [will meet] this burden.

Points and Authorities

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].)

Identification Of Parties—See FORECITE F 100.2 Note 1.

WARNING! Federal constitutional claims may be lost without proper federalization—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 9.2 [Courtroom Security]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

CALJIC NOTE: See FORECITE F 1.04 n15.