SERIES 200 POST-TRIAL: INTRODUCTORY
F 204 NOTES
TABLE OF CONTENTS
F 204 Note 1 Defendant May Make Record Showing Prejudice From Shackling
F 204 Note 2 Cautionary Instruction On Shackling Should Not Be Given Over Defendant’s Objection
F 204 Note 3 Decision Regarding Shackling Must Be Made By The Court
F 204 Note 4 Shackling: Potential For Prejudice Even When Jury Doesn’t See Shackles
F 204 Note 5 Defendant Must Object To Security Measures At Trial
F 204 Note 6 Physical Restraints May Abridge Defendant’s Right To Attend Side Bar Conferences
F 204 Note 7 Failure to Instruct Upon Shackling: Standard Of Prejudice: Restraints Visible.
F 204 Note 8 Shackling: Nature Of Crime Does Not Justify Shackling
F 204 Note 9 Shackling: Prejudice Is Heightened In Capital Trial
F 204 Note 10 Courtroom Security: Use Of Electric Shock Belt As Compromising Defendant’s Ability To Participate In His Or Her Own Defense
F 204 Note 11 Physical Restraints/Shackling Of Defendant: Failure To Object As Ineffective Assistance Of Counsel
F 204 Note 12 Improper Shackling Reversible Where At Least One Juror Saw The Shackles And Prosecution Evidence Was Not Overwhelming
F 204 Note 13 Courtroom Security: Self-RepresentationC Exclusion Of Pro Se Defendant From Sidebar Conferences
F 204 Note 14 Courtroom Security And Physical Restraints Distinguished
F 204 Note 15 Courtroom Security: Whether Audience Seating Arrangement Necessitates Cautionary Instruction
F 204 Note 16 Courtroom Security: Self-RepresentationC Exclusion Of Pro Se Defendant From Sidebar Conferences
F 204 Note 17 Anonymous Victim Or Witness
F 204 Note 18 Shackling Of Defense Witness
Return to Series 200 Table of Contents.
F 204 Note 1 Defendant May Make Record Showing Prejudice From Shackling
(See People v. Duran (1976) 16 C3d 282, 291-92; see also Rhoden v. Rowland (9th Cir. 1993) 10 F3d 1457 [matter remanded to allow showing of prejudice]; Rhoden v. Rowland (9th Cir. 1999) 172 F3d 633 [after remand habeas relief was granted based on improper shackling].)
CALJIC NOTE: See FORECITE F 1.04 n1.
F 204 Note 2 Cautionary Instruction On Shackling Should Not Be Given Over Defendant’s Objection
People v. Duran (1976) 16 C3d 282, 291-92 held that the trial court is required to instruct sua sponte that restraints should have no bearing on the determination of the defendant’s guilt when such restraints are visible to the jury. (See also State v. Roberts (1965) 86 NJ Super. 159 [206 A2d 200, 205]; Thomas v. Nevada (1978) 94 Nev. 605, 609 [584 P2d 674]; State v. Smith (Tenn. 1982) 639 SW2d 677, 681; Willocks v. State (Tenn. 1976) 546 SW2d 819, 822 [sua sponte duty to instruct that shackling should in no way influence the determination of guilt or innocence or the assessment of punishment]; State v. Thompson (Tenn. 1991) 832 SW2d 577, 581 [in cases involving the use of shackles in the view of the jury, a limiting instruction is a fundamental safeguard, and the trial court’s duty to give such an instruction does not depend on a request by the defendant].)
Other jurisdictions have specifically declined to impose upon the trial court the mandatory responsibility of giving such an instruction when the defendant fails to request one. (See Wilson v. McCarthy (9th Cir. 1985) 770 F2d 1482, 1485; State v. Stewart (Minn. 1979) 276 NW2d 51 [“decision to instruct the jury on the use of restraints is left with defense counsel. We believe this to be the better rule since any imposition of a requirement of sua sponte instructions by the trial court transfers the trial strategy from defense counsel to the trial judge.” ]; Patterson v. Estelle (5th Cir. 1974) 494 F2d 37, 38; State v. Cassel (1970) 48 Wis.2d 619, 625-26 [180 NW2d 607].)
However, regardless of whether such an instruction must be given sua sponte, the defendant should be permitted to affirmatively object to or waive the instruction should counsel determine that it would unduly heighten the prejudice. (See PG X(E)(19)(1) and (2) discussing whether jurors are capable of following cautionary and limiting instructions.) The party who benefits from a cautionary or limiting instruction may object to the instruction for tactical reasons. (See also FORECITE PG VI(C)(1.1).)
CALJIC NOTE: See FORECITE F 1.04 n2.
F 204 Note 3 Decision Regarding Shackling Must Be Made By The Court
People v. Hill (1998) 17 C4th 800, held that the trial court abdicated its decision-making responsibility and abused its discretion when it allowed the Sheriff‘s Department to determine that the defendant should be shackled in court.
CALJIC NOTE: See FORECITE F 1.04 n3.
F 204 Note 4 Shackling: Potential For Prejudice Even When Jury Doesn’t See Shackles
Even if the jury does not see the defendant’s shackles during trial there are other possibilities of prejudice in the use of unjustified restraints.Shackles may impair the defendant’s mental faculties, compromise his ability to cooperate or communicate with counsel, and inhibit his willingness to take the stand and testify on his own behalf. (People v. Hill (1998) 17 C4th 800; People v. Mar (2002) 28 C4th 1201 [stunbelt]; State v. Muse (1998) 967 SW2d 764 [voir dire in defendant’s absence violated right to be present; defendant had no opportunity to give advice or make suggestions to his lawyer, observe prospective jurors concerning their responses to personal and general matters, or participate in the peremptory challenges]; see also FORECITE F 204 Note 6 re: inability of shackled defendant to participate in bench conferences; FORECITE F 204 Note 4; F 204 Note 7 [Standards Of Prejudice].)
CALJIC NOTE: See FORECITE F 1.04 n4.
F 204 Note 5 Defendant Must Object To Security Measures At Trial
The use of physical restraints or other security measures in the trial court cannot be challenged for the first time on appeal. (People v. Majors (1998) 18 C4th 385, 406.) The defendant‘s failure to object and make a record below waives the claim for appeal. (Ibid.; see also People v. Tuilaepa (1992) 4 C4th 569, 583.)
However, there is a sua sponte duty to give a cautionary instruction when the defendant‘s shackles are visible to the jury. (See FORECITE F 204 Note 2.)
CALJIC NOTE: See FORECITE F 1.04 n5.
F 204 Note 6 Physical Restraints May Abridge Defendant’s Right To Attend Side Bar Conferences
When the defendant is physically restrained in such a manner that the restraints are not visible to the jury while the defendant is sitting, but would be visible if the defendant were to stand or walk in the presence of the jury, the restraints likely will prevent the defendant from attending “side bar” conferences. (See People v. Majors (1998) 18 C4th 385, 406 [recognizing the potential for error in such a situation but declining to assume prejudice from the defendant’s absence because the defendant himself stated that he did not wish to be present at the conferences].) Such a restriction could impact the defendant’s federal constitutional rights to due process and presence at trial if the side bar conferences relate to matters—other than purely legal issues—to which the defendant has a right to be privy. (See In re Dennis (1959) 51 C2d 666, 672-3; People v. Jackson (1980) 28 C3d 364, 309 [due process and right to be personally present is abridged if presence will be useful or of benefit to defendant and counsel].) For example, if the conference involves matters such as a juror note or communication (see e.g., Majors, 18 C4th at 406) or excusal of jurors on voir dire (see e.g., People v. Antommarchi (1992) 80 NY2d 247, 590 [604 NE2d 95]; People v. Roman (1996) 643 NYS2d 10 [665 NE2d 1050]) then the defendant’s absence may implicate due process. (See also Diaz v. U.S. (1912) 223 US 442, 455 [56 LEd 500; 32 SCt 250].)
CALJIC NOTE: See FORECITE F 1.04 n6.
F 204 Note 7 Failure to Instruct Upon Shackling: Standard Of Prejudice: Restraints Visible
If the restraints were visible to the jury, then the failure to caution the jury regarding the restraints rises to the level of federal constitutional error for which the Chapman standard of prejudice applies. (See People v. Jackson (1993) 14 CA4th 1818, 1827-30; see also Duckett v. Godinez (9th Cir. 1995) 67 F3d 734, 748 [defendant denied due process when required to wear shackles in presence of sentencing jury]; Rhoden v. Rowland (9th Cir. 1999) 172 F3d 633 [defendant denied due process when shackled without justification and shackling is visible to the jurors in courtroom].) “Because at least some of the jurors saw the shackles and because the shackles essentially branded Rhoden as having a violent nature in a case where his propensity for violence was a crucial issue, the shackles ‘had a substantial and injurious effect or influence in determining the jury’s verdict’ and thus did not constitute harmless error. [Citation, inter alia, Brecht v. Abrahamson (1993) 507 US 619, 637 [123 LEd2d 353; 113 SCt 1710].]” (Rhoden v. Rowland (9th Cir. 1999) 172 F3d 633, 637.)
Restraints Not Visible—When the restraints are not visible, harmless error may be found. However, there are many sources of potential prejudice even if the shackles are not seen by the jury. (See FORECITE F 1.04 n4 and F 1.04 n6.)
ALERT: See Deck v. Missouri (5/23/2005, No. 04-5293) ____ US ____ [161 LEd2d 953; 125 SCt 2007, 2015] [“…where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation …State must prove ‘beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict’ …” ].
F 204 Note 8 Shackling: Nature Of Crime Does Not Justify Shackling
Because the defendant is presumed innocent, shackling may not be based on the nature of the crime charged. (See e.g., State v. Finch (WA 1999) 975 P2d 967; see also Long v. State (TX 1991) 823 SW2d 259, 282 [error to order defendant shackled where order was based on violent nature of crime charged rather than on behavior of defendant while in custody]; State v. Grinder (WI 1995) 527 NW2d 326, 329 [record must show reasons for use of physical restraints].)
CALJIC NOTE: See FORECITE F 1.04 n8.
F 204 Note 9 Shackling: Prejudice Is Heightened In Capital Trial
Shackling is especially prejudicial in a capital trial where the jury typically must consider the likelihood that the defendant will pose a danger to others in the future. “Shackling sends a message to the jury that in the court‘s view, the defendant is so dangerous that he or she cannot be allowed to attend the proceedings, even with other security measures, without physical restraints.” (State v. Finch (WA 1999) 975 P2d 967, 1009.) Hence, the prejudice to the defendant in such a situation is undeniable. (Ibid.)
CALJIC NOTE: See FORECITE F 1.04 n9.
F 204 Note 10 Courtroom Security: Use Of Electric Shock Belt As Compromising Defendant’s Ability To Participate In His Or Her Own Defense
Electric shock belts have been viewed as an alternative to shackling of the defendant because the belt cannot be seen by the jury and, hence, does not have the potential danger of adversely influencing the jury. However, the potential that the electric shock belt may impair the defendant’s ability to participate in his or her own defense may be much greater than with shackles. (Cf. People v. Mar (2002) 28 C4th 1201 [improper to require defendant to testify while wearing a stun belt].) The shock, which is administered to the defendant by the belt, is so powerful that it can immobilize the defendant and frequently may induce self-defecation and self-urination. (See People v. Garcia (1997) 56 CA4th 1349, 1354.) The electric current will “completely short circuit the skeletal muscle nerve system…Skeletal muscle is reduced to a functionless mass and the body will be unable to move or retain posture. The victim simply collapses.” (J.M. Robinson, et al., “Electric Shock Devices and Their Effects on the Human Body,“ 30 Medicine, Science and the Law, 285, 299 (Oct. 1990 British Academy of Forensic Science).)
A short shock of only 3-5 seconds will leave the person A dazed and weak for at least five, perhaps fifteen, minutes. Such effects are readily claimed by manufacturers in advertising and instruction sheets and have been verified by American police. [Citation.]” (Id. at 298.)
Besides paralysis and pain, there are lasting adverse health effects. The fall and convulsions from the shock can lead to head injuries and a variety of wounds from impacts with nearby blunt objects. (Id. at 295-96.) The electrodes often leave welts which can take up to six months to heal. (Ann-Marie Cusac, “Stunning Technology,“ The Progressive (July 1996) p. 18.)
Hence, a defendant wearing the electric shock belt during trial may be pre-occupied with the possibility of being shocked. Moreover, because counsel often must be in physical contact with the defendant, counsel is also at risk of being shocked. (See 30 Med.Sci.Law, supra, at 299.) Thus, both the defendant and counsel will be pre-occupied with protecting themselves from the potential pain and adverse health effects of the electric shock belt, thus inhibiting meaningful confidential courtroom communication between the defendant and counsel. Such a result implicates the defendant’s right to due process, a fair trial by jury and to effective assistance of counsel under the 5th, 6th and 14th Amendments to the United States Constitution and Article I, §15 of the California Constitution. (See People v. Mar (2002) 28 C4th 1201 [a stun belt is a physical restraint within the meaning of People v. Duran (1976) 16 C3d 282 manifest need must be shown before such a restraint may be used].) [See Brief Bank # B-813 for additional briefing on this issue.]
Hence, a showing of necessity should be required before forcing the defendant to wear a stun belt. (See People v. Mar (2002) 28 C4th 1201 [manifest need must be shown before requiring defendant to wear stun belt while testifying].)
[See Motion Bank # M-3009 for a copy of a motion to preclude the use of an electric shock belt.] This motion also appeared in the CACJ Forum, Vol. 26, No. 1 (February 1999), p. 21-25.]
RESEARCH NOTE: Amnesty International’s report “Cruelty In Control? The Stun Belt and Other Electro-Shock Equipment In Law Enforcement” (6/8/99) contains useful support for “REACT belt” arguments. It is available from Amnesty International for $8.95, or visit their website at http://www.amnesty-usa.org.
CALJIC NOTE: See FORECITE F 1.04 n10.
F 204 Note 11 Physical Restraints/Shackling Of Defendant: Failure To Object As Ineffective Assistance Of Counsel
(See Roche v. Davis (7th Cir. 2002) 291 F3d 473, 483 [counsel’s failure to object on the record to the use of shackles and assure that they were out of the jury’s view was ineffective performance].)
CALJIC NOTE: See FORECITE F 1.04 n11.
F 204 Note 12 Improper Shackling Reversible Where At Least One Juror Saw The Shackles And Prosecution Evidence Was Not Overwhelming
(See Dyas v. Poole (9th Cir. 2002) 309 F3d 586 [because the case was close, an otherwise marginal bias created by the shackles may have played a significant role in the jury<'s decision].)
CALJIC NOTE: See FORECITE F 1.04 n12.
F 204 Note 13 Courtroom Security: Self-Representation—Exclusion Of Pro Se Defendant From Sidebar Conferences
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 should place in the record the security concerns that necessitate barring the defendant from sidebars. (State v. Davenport, 827 A2d at 1075.)
CALJIC NOTE: See FORECITE F 1.04 n13.
F 204 Note 14 Courtroom Security And Physical Restraints Distinguished
People v. Marks (2003) 31 C4th 197, 224, concluded that there is a distinction between shackling and the deployment of security personnel, and declined to impose the manifest need standard for the deployment of marshals inside the courtroom.
CALJIC NOTE: See FORECITE F 1.04 n14.
F 204 Note 15 Courtroom Security: Whether Audience Seating Arrangement Necessitates Cautionary Instruction
See FORECITE F 101.1 Note 3.
F 204 Note 16 Courtroom Security: Self-Representation—Exclusion Of Pro Se Defendant From Sidebar Conferences
See FORECITE F 100.3 Note 10.
F 204 Note 17 Anonymous Victim Or Witness
See FORECITE F 123 et al.
F 204 Note 18 Shackling Of Defense Witness
The Duran [People v. Duran (1976) 16 CA3d 282] rules for physical restraints apply to defense witnesses as well as to defendants. (People v. Ceniceros (1994) 26 CA4th 266, 277.) Duran stated: “The rules articulated hereinafter are applicable to the shackling of defendants and defense witnesses, since the considerations supporting use of physical restraints are similar in each instance. [Citation.] . . . [H]owever, the prejudicial effect of shackling defense witnesses is less consequential since ‘the shackled witness . . . [does] not directly affect the presumption of innocence.'” (People v. Duran, supra, 16 Cal.3d at p. 288, fn. 4.) Accordingly, inmate defense witnesses “cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints.” (Id. at pp. 290-291, fn. omitted.)
