F 337 Witness In Custody Or Physically Restrained

TABLE OF CONTENTS
F 337 Inst 1 (a-c) Cautionary Instruction Regarding Physical Restraints
F 337 Inst 2 (a-d) Shackling Or Physical Restraint Of Defense Witness: Propriety/Cautionary Instructions
F 337 Inst 3 (a & b) Cautionary Instruction Regarding Shackling and Courtroom Security
F 337 Inst 4 (a-c) Cautionary Instruction Regarding Stationing Of Bailiff(s) Or Deputy(s) Near Defendant Or Defense Witness
F 337 Note 1 Courtroom Security And Physical Restraints Distinguished
F 337 Note 2 Courtroom Security: Necessity Of Repeating Presumption Of Innocence

Return to Series 300 Table of Contents.

F 337 Inst 1 (a-c) Cautionary Instruction Regarding Physical Restraints

*Replace CC 337 with:

Alternative a:

Ladies and gentlemen of the jury, as you can see [the witness 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 consider, for any purpose, the fact that physical restraints have been placed on the defendant. These restraints have no bearing on the credibility of the defendant or the determination of whether (he/she) has been proven guilty. It is [a normal routine procedure] [the policy of this court] to physically restrain defendants who are in court at the time of their trial. In deciding the issues in this case, disregard the physical restraints entirely.

Alternative c:

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

Points and Authorities

CALCRIM Deficiency—CALCRIM 337 is inadequate in that it does not make any effort to counter the possible conclusion that the jurors may draw regarding the defendant’s dangerousness. (See FORECITE F 101.1 Inst 1.) Alternative a, above, was adapted from an example in a CACJ article by Howard W. Gillingham. (See 20 CACJ Forum No. 2 at p. 42, fn 16.)

Normal Procedure: See F 101.1 Inst 1.

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).) However, 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.)

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.

NOTES

Failure to Instruct Upon Shackling: Standard Of Prejudice.—(See FORECITE F 1.04 n7.)

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

CALJIC NOTE: See FORECITE F 1.04a.

F 337 Inst 2 (a-d) Shackling Or Physical Restraint Of Defense Witness: Propriety/Cautionary Instructions

Alternative a:

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 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.

Alternative b:

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.

Alternative c:

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.

Alternative d:

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.]

Points and Authorities

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.

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 (1994) 26 CA4th 266, 275-278; 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, ABA 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 (1976) 16 C 3d 282, 291-292 [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 (2000) 23 C4th 225.)

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.

F 337 Inst 3 (a & b) Cautionary Instruction Regarding Shackling And Courtroom Security

Alternative a:

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.

Alternative b:

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.

Points and Authorities

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.)

People v. Hayes (1999) 21 C4th 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 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 (1986) 475 US 560, 569 [89 LEd2d 525; 106 SCt 1340]; People v. Duran (1976) 16 C3d 282, 291, fn 8; see also People v. Jenkins (2000) 22 C4th 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].)

Nevertheless, the prejudicial implications from the use of courtroom security should justify an appropriate cautionary instruction informing the jurors that these procedures are normal and are used in every case and do not reflect upon the individual defendant. (See FORECITE F 101.1 Inst 2; see also People v. Jenkins (2000) 22 C4th 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 (10/21/2005, 9th Cir. No. 03-16653) 427 F3d 653 [allowing spectators to wear buttons depicting the decedent interfered with right to a fair trial by impartial jury free from outside influences].)

Regarding the language repeating the presumption of innocence, see FORECITE F 337 Note 1.

(See also FORECITE F 101.1 Note 3.)

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.)

CALJIC NOTE: See FORECITE F 1.04b.

F 337 Inst 4 (a-c) Cautionary Instruction Regarding Shackling And Courtroom Security

*Replace CC 337 with:

Alternative a:

Ladies and gentlemen of the jury, as you can see [an extra] [a bailiff] has been stationed near [defendant] [__________(witness)] during [trial] [his/her testimony]. This is a customary practice that has nothing to do with the [defendant] [witness]. 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 this fact 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 consider, for any purpose, the fact that [an extra] [a bailiff] has been stationed near [defendant] [__________(witness)] during [trial] [his/her testimony]. This has no bearing on the credibility of the [defendant] [witness] or the determination of whether the defendant has been proven guilty. It is [a normal routine procedure] [the policy of this court]. In deciding the issues in this case, disregard this fact entirely.

Alternative c:

You must not discuss or consider the fact that [an extra] [a bailiff] has been stationed near [defendant] [__________(witness)] during [trial] [his/her testimony]. Such security measures are normal procedures which are routinely used in every case. They have nothing to do with this particular [defendant] [witness].

Points and Authorities

CALCRIM Deficiency — Despite its conclusion in People v. Hernandez (2011) 51 CA4th 733, 741 that the practice stationing a deputy/bailiff near the defendant during his testimony was not inherently prejudicial, the Supreme Court in People v. Stevens (2009) 47 CA4th 625 cautioned that “the trial court must exercise its own discretion in ordering such a procedure and may not simply defer to a generic policy.” The Supreme Court explained: “The [trial] court may not defer decisionmaking authority to law enforcement officers, but must exercise its own discretion to determine whether a given security measure is appropriate on a case-by-case basis. [Citations.] . . . [T]he trial court has the first responsibility of balancing the need for heightened security against the risk that additional precautions will prejudice the accused in the eyes of the jury . . . The trial court should state its reasons for stationing a guard at or near the witness stand and explain on the record why the need for this security measure outweighs potential prejudice to the testifying defendant. In addition, 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.” [Emphasis added.] (Stevens, supra, 47 CA4th at p. 642.)

However, CALCRIM 337 is inadequate as a cautionary instruction because it does not make any effort to counter the possible conclusion that the jurors may draw regarding the dangerousness of the defendant or defense witness. (See FORECITE F 101.1 Inst 1.) Alternative a, above, was adapted from an example in a CACJ article by Howard W. Gillingham. (See 20 CACJ Forum No. 2 at p. 42, fn 16.)

Normal Procedure: See 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.

F 337 Note 1 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 337 Note 2 Courtroom Security: Necessity Of Repeating Presumption Of Innocence

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].)

CALJIC NOTE: See FORECITE F 1.04 n15.