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F 1.04 n1 Defendant May Make Record Showing Prejudice From Shackling.
(See Rhoden v. Rowland (93) 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].)
F 1.04 n2 Cautionary Instruction On Shackling Should Not Be Given Over Defendant’s Objection.
People v. Duran (76) 16 C3d 282, 291-92 [127 CR 618] 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 (65) 86 NJ Super. 159 [206 A2d 200, 205]; Thomas v. Nevada (78) 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 (70) 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).)
F 1.04 n3 Decision Regarding Shackling Must Be Made By The Court.
People v. Hill (98) 17 C4th 800 [72 CR2d 656] 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.
F 1.04 n4 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 (98) 17 C4th 800 [72 CR2d 656]; State v. Muse (98) 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 1.04 n6 re: inability of shackled defendant to participate in bench conferences; FORECITE F 1.04 n7 [Standards Of Prejudice].)
F 1.04 n5 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 (98) 18 C4th 385, 406 [75 CR2d 684].) The defendant’s failure to object and make a record below waives the claim for appeal. (Ibid; see also People v. Tuilaepa (92) 4 C4th 569, 583 [15 CR2d 382].)
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 1.04 n2.)
F 1.04 n6 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 (98) 18 C4th 385, 406 [75 CR2d 684] [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 (59) 51 C2d 666, 672-3 [335 P2d 657]; People v. Jackson (80) 28 C3d 364, 309 [168 CR 603] [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 (92) 80 NY2d 247, 590 [604 NE2d 95]; People v. Roman (96) 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].)
F 1.04 n7 Failure to Instruct Upon Shackling: Standard Of Prejudice: Restraints Visible.
See FORECITE PG X(C)(22).
F 1.04 n8 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].)
F 1.04 n9 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.)
F 1.04 n10 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 [124 CR2d 161] [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 (97) 56 CA4th 1349, 1354 [66 CR2d 350].) 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 “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 Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 15 of the California Constitution. (See People v. Mar (2002) 28 C4th 1201 [124 CR2d 161] [a stun belt is a physical restraint within the meaning of People v. Duran (76) 16 C3d 282 [127 CR 618] 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 [124 CR2d 161] [manifest need must be shown before requiring defendant to wear stun belt while testifying].)
[See Motion Bank # M-3009 for 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.
F 1.04 n11 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].)
F 1.04 n12 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].)
F 1.04 n13 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.)
F 1.04 n14 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.
F 1.04 n15 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].)
See FORECITE F 2.008a Samples 2, 5 and 6.
F 1.04 n16 Courtroom Security: Whether Audience Seating Arrangement Necessitates Cautionary Instruction.
(See FORECITE F 0.50 n7.)
F 1.04a Cautionary Instruction Regarding Physical Restraints
*Modify CJ 1.04 to read as follows:
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.
Points and Authorities
CJ 1.04 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. (See FORECITE F 0.50b.) The above instruction was adapted from an example in a CACJ article by Howard W. Gillingham. (See 20 CACJ Forum No. 2 at p. 42, fn 16.)
CAVEAT: Of course, 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 (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 1.04 n7.)
Instruction Regarding Courtroom Security: See FORECITE F 2.008a for instruction regarding courtroom security.
F 1.04b Cautionary Instruction Regarding Shackling and Courtroom Security.
(See FORECITE F 2.008a.)
