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Cautionary Instruction: Courtroom Security
SAMPLE INSTRUCTION # 1:
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 [96 CR2d 682] 2000 DAR 6037, 6059.]
SAMPLE INSTRUCTION # 2:
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 # 3:
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 # 4:
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 # 5:
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 # 6:
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
In People v. Jenkins (87) 196 CA3d 394, 402 [241 CR 827], 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 (99) 21 C4th 1211, 1267-69 [91 CR2d 211] 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 (86) 475 US 560, 569 [89 LEd2d 525; 106 SCt 1340]; People v. Duran (76) 16 C3d 282, 291, fn 8 [127 CR 618]; see also People v. Jenkins (2000) 22 C4th 900, 995-97 [95 CR2d 377] [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 0.50c; see also People v. Jenkins (2000) 22 C4th 900, 996-97 [95 CR2d 377] [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.)
Regarding the language repeating the presumption of innocence, see FORECITE F 1.04 n14.
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 1.04a.)
(See also FORECITE F 0.50 n7.)
See also, FORECITE F 1.04a 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 appeal 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 [96 CR2d 682] 2000 DAR 6037, 6059 [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 CAVEATregarding the potential danger that such cautionary instructions will unduly emphasize the prejudicial matter (F 2.002a).) [A copy of the Mendez opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-164.]