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1.DEALING WITH THE DISRUPTIVE DEFENDANT 2. DEFENDANT’S FORFEITURE OF RIGHT OF RIGHT TO BE PRESENT AT TRIAL - MN Bench Book - Trial Procedures & Practices for Judges
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1.DEALING WITH THE DISRUPTIVE DEFENDANT 2. DEFENDANT’S FORFEITURE OF RIGHT OF RIGHT TO BE PRESENT AT TRIAL

From MN Bench Book - Trial Procedures & Practices for Judges

1. A DEFENDANT HAS THE RIGHT TO BE PRESENT DURING THE TRIAL AND TO CONFRONT THE WITNESSES AND EVIDENCE AGAINST HIM.

That right can be waived either explicitly:
A. Through a waiver on the record, or
B. Implicitly by conduct of the defendant that disrupts the trial or proceeding or indicates disrespect for the authority of the court.
Misconduct on the part of the defendant, who “...After warning, engages in conduct which ‘tends to interrupt the orderly procedure of the court and the due course of the trial is considered to be a valid, implicit waiver of the right to be present.[1]

2. THE TRIAL JUDGE SHOULD USE A SERIES OF ESCALATING SANCTIONS AND CONTROL METHODS IN AN ATTEMPT TO CONTROL A DISRUPTIVE DEFENDANT.[2]

A. A RECORD SHOULD BE MADE OF THE SPECIFIC BEHAVIOR OF THE DEFENDANT THE JUDGE WANTS TO STOP.
B. A RECORD SHOULD BE MADE OF THE SPECIFIC INSTRUCTIONS GIVEN BY THE JUDGE TO THE DEFENDANT AND THE DEFENDANT’S ATTORNEY REGARDING THE DEFENDANT’S BEHAVIOR THE JUDGE WANTS TO STOP.</b>
C. ESCALATING SANCTIONS AND CONTROL METHODS IN AN ATTEMPT TO CONTROL A DISRUPTIVE DEFENDANT INCLUDE:
  1. Having one or more conferences at the bench with the defendant’s attorney describing the defendant’s behavior and directing the attorney to speak with his client about the behavior that should be stopped.
  2. Taking a recess and allowing the defendant’s attorney to sp;eak to defendant about behavior to be stopped,
  3. Speaking to the defendant outside the presence of the jury about the behavior that is to stop and informing the defendant of the consequences of the failure to do so,
  4. Specifically informing the defendant that if the behavior does not stop the judge will speak to the defendant in the presence of the jury about the behavior that is to be stopped.
  5. If the behavior persists speaking to the defendant in the presence of the jury about the behavior that is to be stopped.
  6. If the behavior continues the judge can either shackle[3] or remove[4] the defendant from the courtroom.

3. SHACKLING OR REMOVING THE DEFENDANT

A. The judge make a record of the physical and verbal behavior of the defendant that the judge is attempting to stop.
B. The judge should also make a record of the directions given by the judge to the defendant’s attorney and the defendant to control the defendant.
C. FACTORS TO CONSIDER IN DECIDING TO SHACKLE, RESTRAIN OR REMOVE THE DEFENDANT[5]
  1. The use of restraints or removal must be imminently necessary,
  2. The restraints must be reasonable and the least coercive under the circumstances.
  3. The court need not wait for the defendant’s conduct in the courtroom to actually disrupt the proceedings and instead may infer the immediate necessity from the defendant’s attributes or prior conduct.
  4. The court should consider the following factors in determining the necessity of restraints or removal:[6]
  5. The seriousness of the present charge against the defendant,
  6. The defendant’s temperament and character, his age and physical attributes,
  7. The defendant’s past record, past escapes and attempted escapes, and evidence of a present plan to escape,
  8. Threats to harm others or cause a disturbance,
  9. Self-destruction tendencies,
  10. The risk of mob violence or of an attempted revenge by others,
  11. The possibility of rescue by other offenders still at large,
  12. The size and mood of the audience,
  13. The nature and physical security of the courtroom, and
  14. The adequacy and availability of alternate remedies. . . .
D. If the defendant is shackled or removed from the courtroom the judge should give the defendant an opportunity each day to have the shackles removed or to return to the courtroom upon the defendant’s promise to behave.
E. If the defendant is Pro Se at trial and, because of his disruptive behavior is removed from the courtroom, the judge must appoint counsel to represent the defendant in his absence at trial.[7]
F. If the defendant is removed from the courtroom the defendant should be allowed to monitor the trial and testimony and argument produced in the courtroom via an audio and if possible also a video connection.
G. When a court orders restraints or removes the defendant fromt the courtroom, the court must state its reasons on the record outside the presence of the jury.[8]
H.Failure to make findings on the record regarding the need for restraints or removal is error.[9]
I. If the restraint is apparent to the jury or if the judge removes the defendant, and the defendant request, the judge must instruct the jury that the restraint or removal must not be considered in reaching the verdict [10]



References:

  1. Minn.R.Crim.P. 26.03, Subd. 1.(2)2.Presence Waived
  2. State v. Stewart, 276 NW2d 51 (Minn. 1979); State v. Ware, 498 NW2d 454 (Minn. 1993).
  3. State v. Shoen, 578 N.W.2d 708 (Minn. 1998); Minn.R. Crim.P. 26.03, Subd. 2c.
  4. Minn.R.Crim.P. 26.03, Subd. 1.(2)2.Presence WaivedState v. Holland, 421 N.W.2d 382, Minn.App.,1988., Illinois v. Allen, 397 U.S. 337, (1970)
  5. State v. Shoen, 578 N.W.2d 708 (Minn. 1998),State v. Holland, 421 N.W.2d 382, Minn.App.,1988., Illinois v. Allen, 397 U.S. 337, (1970)
  6. Id
  7. State v. Holland, 421 N.W.2d 382, Minn.App.,1988., Illinois v. Allen, 397 U.S. 337, (1970)
  8. Id
  9. Id,
  10. Minn.R.Crim.P.26.03, Subd. 2d