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

From MN Bench Book - Trial Procedures & Practices for Judges

A. SUMAMARY OF PROCEDURE TO FOLLOW IN DEALING WITH DISRUPTIVE DEFENDANT

1. The trial judge should use a series of escalating sanctions and control methods in an attempt to control a disruptive defendant.

2. A record should be made of the specific behavior of the defendant the judge wants to stop.

3. 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.

Escalating sanctions and control methods can include;[1]

  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 speak 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[2] or remove the defendant from the courtroom.


B. The General Rule

Minn. R. Crim. P. 26.03, subd. 1(2) provides: the further progress of a trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to waive his right to be present whenever... a defendant after warning engages in conduct which is such as to justify his being excluded from the courtroom because it tends to interrupt the orderly procedure of the court and the due course of the trial. As an alternative to exclusion, the court may use all such methods of restraint as will ensure the orderly procedure of the court and the due course of the trial.

When a defendant insists on interrupting for the purpose of addressing jurors even when told it is not his time to do so he may be removed from the courtroom.[3] Under these circumstances the defendant waives his right to confrontation. [4]

C. Defendant Cannot Make His/Her Own Mistrial

Neither in criminal nor in civil cases will the law allow a person to take advantage of his own wrong. To allow the destructive activities of a defendant like respondent to prevent his trial is to allow him to profit from his own wrong. The constitution would protect none of us if it prevented the courts from acting to preserve the very process the constitution itself prescribes. [5]

D. Response to Disruption Can Cause Mistrial in Some Circumstances

In State v. Stewart the court clarified that first, the use of restraints must be imminently necessary and second, the restraints must be reasonable and the least coercive under the circumstances. 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. The court should consider various factors in determining the necessity of restraints. These factors may include the seriousness of the present charge against the defendant, the defendant’s temperament and character, his age and physical attributes, his past record, past escapes and attempted escapes, and evidence of a present plan to escape, threats to harm others or cause a disturbance, self-destruction tendencies, the risk of mob violence or of an attempted revenge by others, the possibility of rescue by other offenders still at large, the size and mood of the audience, the nature and physical security of the courtroom, and the adequacy and availability of alternate remedies. . . .When a court orders such restraints, it must state its reasons on the record outside the presence of the jury. Failure to make findings on the record regarding the need for restraints is error. [6]

More than you ever wanted to know about contempt: judicial contempt versus the crime of contempt. [7]

Courts considering a contempt penalty should determine at their earliest convenience whether the purpose of the contempt proceeding is remedial or punitive, and whether the nature of the contemptuous conduct at issue is direct or constructive.

E. How To Address Disruptive Behavior

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 explictly through a waiver on the record or impicitily 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 “[a]fter 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.[8]

1. The trial judge should use a series of escalating sanctions and control methods in an attempt to control a disruptive defendant.

2. A record should be made of the specific behavior of the defendant the judge wants to stop.

3. 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.

The trial judge should use a series of escalating sanctions and control methods in an attempt to control a disruptive defendant.[9] These 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 speak 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, outside presence of the jury, 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[10] or remove the defendant from the courtroom.

F. Shackling A Defendant

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.

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.

Factors to Consider in Deciding to Shackle or Restrain a Defendant[11]
  1. The use of restraints 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:[12]
a. The seriousness of the present charge against the defendant,
b. The defendant’s temperament and character, his age and physical attributes,
c. The defendant’s past record, past escapes and attempted escapes, and evidence of a present plan to escape,
d. Threats to harm others or cause a disturbance,
e. Self-destruction tendencies,
f. The risk of mob violence or of an attempted revenge by others,
g. The possibility of rescue by other offenders still at large,
h. The size and mood of the audience,
i. The nature and physical security of the courtroom, and
j. The adequacy and availability of alternate remedies. . . .

When a court orders restraints, it must state its reasons on the record outside the presence of the jury.[13]

Failure to make findings on the record regarding the need for restraints is error.[14]

If the restraint is apparent to the jury, and the defendant request, the judge must instruct the jury that the restraint must not be considered in reaching the verdict [15]

G. Jury Instructions Regarding Disruptive Defendants

When the Defendant makes an inappropriate verbalization:
"You just [describe behavior, e.g., heard the defendant speak to the witness]. The defendant's statements are not evidence in this case. You must disregard any statement that the defendant makes in this courtroom unless [he/she] is testifying as a witness."

When the Defendant Requires Restraining:
"You may notice that the defendant [describe restraints, e.g., is wearing handcuffs in the courtroom]. You must not consider this fact in deciding the issues in this case. It is not evidence in this case and should not be discussed by you in your deliberations. It has no bearing on defendant's guilt or innocence."

When Inappropriate Conduct by the Defendant Requires His/Her Removal:
"You may notice that the defendant is no longer in the courtroom. The defendant's absence is unrelated to [his/her] guilt or innocence and is not evidence in the case. You must not consider this fact in deciding the issues in this case."

Comments

Defendants sometimes disrupt the orderly process of trial with inappropriate verbal or physical conduct. The Benchbook for U.S. District Court Judges suggests a protocol for handling disruptive defendants.[16] Whether and how to instruct the jury will depend on the type and severity of the defendant's misconduct as well as the court's response to that misconduct.

First, in the case of a verbal outburst, the court may simply want to direct the jury to disregard it. For example, in Norde v. Keane[17] the Second Circuit quoted from the state court's caution to the jury after the defendant's outburst:

Now ladies and gentleman, you just heard the defendant yell out in the courtroom. He's been instructed by me not to do that. And I am going to instruct you to disregard any statements that the defendant makes in this courtroom[] other than if he should take the stand and testify. Just disregard it.

In Norde, the Second Circuit held that the defendant's rights had been protected, but disapproved the trial court's further elaboration to the jury discussing the defendant's expressed desire to be represented by a different lawyer.[18]

Second, in some cases, the defendant's conduct may prompt the court to order the disruptive defendant restrained. Such action does not necessarily violate the defendant's rights, but it may prejudice the defendant in the eyes of the jury.[19] To the extent possible, the court should rely on restraints not visible to the jury. In Wilson v. McCarthy, 70 F.2d 1482 (9th Cir. 1985), the Ninth Circuit held that the trial court was not required to instruct the jury concerning the shackles used on the defendant in the absence of a defense request. Nevertheless, an instruction may be helpful. In Szuchon, the Third Circuit noted that the trial court had "carefully instructed the jury to remain focused solely on the evidence."[20]

Finally, in some cases, the defendant's disruptive behavior may be so severe and persistent that the trail court removes the defendant from the courtroom. [21] The court should then instruct the jury that the absence is not related to the defendant's guilt on the charges and is not evidence in the case. The court must permit the absent defendant to communicate with counsel, either directly during the proceedings or at least at frequent intervals. In addition, if possible, the court should arrange a connection - video or at least audio - to allow the absent defendant to observe the court proceedings.

H. Allowing defendant to be unshackled or returned to the Courtroom

The trial judge should give a defendant, who has been, gagged, shackled or removed from the courtroom, daily opportunities to agree to behave in the courtroom and no longer be subject to the restriction. The judge should do this at the beginning of court in the morning and again after the noon recess.

References:

  1. State v. Stewart, 276 NW2d 51 (Minn. 1979); State v. Ware, 498 NW2d 454 (Minn. 1993).
  2. State v. Shoen, 578 N.W.2d 708 (Minn. 1998); Minn.R. Crim.P. 26.03, Subd. 2c.
  3. State v. Jones, 247 N.W.2d 427 (Minn. 1976).
  4. State v. McRae, 371 N.W.2d 66 (Minn. App. 1985).
  5. State v. Ming Sen Shiue, 326 N.W.2d 648 (Minn. 1982), quoting Illinois v. Allen, 397 U.S. 337 (1970).
  6. State v. Shoen, 578 N.W.2d 708 (Minn. 1998).
  7. State v. Tatum, 556 N.W.2d 541 (Minn. 1996) (remedial, punitive, direct, indirect, and the crime of contempt).
  8. Minn.R.Crim.P. 26.03, Subd. 1.(2)2.Presence Waived
  9. State v. Stewart, 276 NW2d 51 (Minn. 1979); State v. Ware, 498 NW2d 454 (Minn. 1993).
  10. State v. Shoen, 578 N.W.2d 708 (Minn. 1998); Minn.R. Crim.P. 26.03, Subd. 2c.
  11. State v. Shoen, 578 N.W.2d 708 (Minn. 1998).
  12. Id
  13. Id
  14. Id,
  15. Minn.R.Crim.P.26.03, Subd 2d
  16. Benchbook for U.S. District Court Judges § 5.01 (March 2000 rev.)
  17. Norde v. Keane, 294 F.3d 401, 405 (2d Cir. 2002)
  18. 294 F.3d at 412.
  19. See Szuchon v. Lehman, 273 F.3d 299 (3d Cir. 2001); see also Deck v. Missouri, 125 S. Ct. 2007 (2005); Illinois v. Allen, 39 U.S. 337 (1970).
  20. 273 F.3d at 315; see also United States v. Taylor, 562 f.2d 1345 (2d Cir. 1977) (noting that the trial court had cured possible prejudice after jurors inadvertently observed the defendants in manacles through cautionary instruction "pointing out that the reason for some defendants (not identified by the court) being in custody while others were not was the some defendants were able to afford bail and others were not and that the jury was to draw no inference from whether or not a defendant was able to afford bail"); United States v. Larkin, 417 F.2d 61 (1st Cir. 1969) (noting that trial court gave cautionary instruction after jurors observed the defendant being transported in handcuffs, directing the jury to disregard the fact that defendant was in custody and "that such custody was not unusual in this kind of case and had no bearing on defendant's guilt or innocence").
  21. Benchbook, § 5.01.