FOCUS COLUMNBy James R. Brandlin
A secure courtroom is the bedrock on which the rights of all participants in the justice system are based. Without courtroom security, rights like the ability to present evidence and to have a public trial with an impartial jury are severely undermined.
The objective of this article and self-study test is to educate bench officers and attorneys in civil and criminal cases regarding important issues of courtroom security. Readers will learn about the court's power and duty to preserve security. Security measures covered herein will include: searching and screening persons entering courthouses, engaging in extra security measures in appropriate cases and shackling criminal defendants attending court proceedings when necessary during jury trials and other hearings.
A bench officer has a duty to control his or her courtroom for purposes of security. "Certainly one of the highest judicial duties is reasonably to insure the safety and security of the court and its officers, litigants and attending public." In re Carvallo, 29 Cal.App.3d 983 (1973). The judge, and not the security provider, must decide the appropriate levels and types of security measures in the courtroom. People v. Hill, 17 Cal.4th 800 (1998).
In determining what security measures are appropriate, a careful balance must be struck that takes into consideration the safety of all people and the potential prejudice a security measure may have on the presumption of innocence and a fair and public trial. The court's power must be exercised with care and reason. See Hays v. Superior Court, 16 Cal.2d 260 (1940)
People have the right to be free from unreasonable searches and seizures under the Fourth Amendment, and this right is not extinguished at the courtroom door. Downing v. Kunzig, 454 F.2d 1230 (6th Cir. 1972). Nonetheless, given concerns about violence, individuals' rights here are greatly diminished and courts may order that anyone entering a courthouse pass through a metal detector. See McMorris v. Alioto, 567 F.2d 897 (9th Cir. 1978).
Weapons screening procedures at courthouses have been upheld both on the ground that people coming to a courthouse impliedly consent to being searched, and on the ground that they are permissible administrative searches conducted solely for safety purposes.
When weapons searches are used in criminal courtrooms, the question arises whether jurors might infer that the defendant on trial is dangerous, thus undermining the presumption of innocence.
The California Supreme Court has held that "use of a metal detector does not identify the defendant as a person apart or as worthy of fear and suspicion. ... No reflection upon defendant's guilt or innocence need be inferred from the use of a metal detector." People v. Jenkins, 22 Cal.4th 900 (2000). Moreover, as held by Jenkins, "Security measures that are not inherently prejudicial [such as use of metal detectors] need not be justified by compelling evidence of imminent threats to the security of the court."
Although there is a paucity of California cases on this subject, opinions from other jurisdictions fully support inspecting not just persons but also their effects for weapons. See Commonwealth v. Harris, 421 N.E.2d 447 (Mass. 1981), in which the court ruled that packages, briefcases, or other items carried by a person must be offered for inspection; Rhode Island Defense Attorneys Association v. Dodd, 463 A.2d 1370 (R.I. 1983), in which the court approved inspection of parcels, objects or briefcases brought into courthouse.
Other Security Measures
Screening for weapons is not the only security measure a court can take to ensure safety. Other permissible procedures include making special arrangements for jurors to enter and exit the courtroom through a private entrance to bypass the defendant's fellow gang members who are present in the courtroom; excluding gang members from court during the testimony of a witness; and protecting the judicial system from pressures that can be created by picketing near the courthouse with the intent, e.g., to interfere with the administration of justice or to influence a judge, juror, or witness in discharging his or her duty. People v. Miranda, 44 Cal.3d 57 (1987); People v. Esquibel, 166 Cal.App.4th 539 (2008); Penal Code Section 169; Cox v. State of Louisiana, 379 U.S. 559 (1965).
An additional security measure that can be used involves requiring everyone entering a courtroom to provide identification. Litigants in both criminal and civil cases have the right under the Sixth Amendment to a public trial; nonetheless, this right is not absolute and must sometimes give way to other concerns. Waller v. Georgia, 467 U.S. 39 (1984). Under Waller, if security measures totally exclude the public, the state must bear the heavy burden of showing a compelling interest for the exclusion, and must establish that other measures are inadequate to preserve safety. Requiring the public to show I.D. has been held to be appropriate when members of the audience are seen attempting to intimidate witnesses or when there is some other substantial public interest. See United States v. Brazel, 102 F.3d 1120 (11th Cir. 1997); Woods v. Kuhlmann, 977 F.2d 74 (2d Cir. 1992).
Yet another measure that has been repeatedly upheld in appropriate cases is having extra security personnel present in the courtroom during trials. See, e.g., People v. Marks, 31 Cal.4th 197 (2003).
Keeping in-custody criminal defendants restrained during court proceedings by means of handcuffs and other shackles can be justified under limited circumstances. Obviously, restrained defendants cannot effectively attack bench officers or other people present in the court and are unlikely to get very far if they try to escape.
The balance that must be struck here is to maintain security while not compromising the defendant's right to fair court proceedings. Appellate opinions draw sharp distinctions regarding the level of justification that must be given by the court to justify shackling depending on the type of proceeding that is at issue.
To justify shackling a defendant during a jury trial, an individualized showing of manifest need is required. As the California Supreme Court determined in People v. Cox, 53 Cal.3d 618 (1991), "'Manifest need' arises only upon a showing of unruliness, an announced intention to escape, or '[e]vidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained.'" If a court decides that the use of shackles or other restraints are necessary, the court should impose the least restrictive measure that would be effective to satisfy legitimate security concerns. People v. Mar, 28 Cal.4th 1201 (2002).
The restraint device used in Mar was the "REACT belt," which, although not visible to the jury, was capable of producing a debilitating 50,000-volt electrical charge that carried serious medical risks. The defendant elected to testify in his case and objected to wearing the device. His objection was overruled and he testified before the jury while wearing this stun belt. The Supreme Court reversed the defendant's conviction. The court expressed concern about the potential effect wearing this device had on the defendant since it was understandable that he may have feared an accidental activation and his demeanor and credibility before the jury was crucial.
Assuming that a proper showing of need was met, this result may very well have been different if the device was a "Stealth Belt," a passive restraint system similar to a seat belt that carries no medical risk, and that is also worn under the clothes and not visible to the jury. If restraints are visible to the jury, the court must advise the jury sua sponte that the restraints have no bearing on a determination of guilt. See California Criminal Jury Instruction No. 204.
The showing of manifest need must appear as a matter of record. Courts will not be afforded the normal presumption of correctness in their rulings in this regard and the defendant need not show prejudice. The failure to make a proper showing of a manifest need on the record will result in reversible error unless the prosecution can prove beyond a reasonable doubt that the error did not contribute to the verdict. People v. Suokomlane, 162 Cal.App.4th 214 (2008).
The primary reason for requiring such a high showing is the potential impact on jurors: "We believe that it is manifest that the shackling of a criminal defendant will prejudice him in the minds of the jurors. When a defendant is charged with any crime, and particularly if he is accused of a violent crime, his appearance before the jury in shackles is likely to lead the jurors to infer that he is a violent person disposed to commit crimes of the type alleged." People v. Duran, 16 Cal.3d 282 (1976). Shackles may also affect a defendant's mental state during trial and cause him or her to feel confused, frustrated and embarrassed and impair the defendant's ability to assist counsel and adversely affect his or her demeanor in front of the jury. People v. Hill, 17 Cal.4th 800 (1998).
The latest case from the U.S. Supreme Court on shackling in-custody defendants indicates that there is a historical distinction between the use of such security restraints in jury trials and nonjury proceedings. In Deck v. Missouri, 544 U.S. 622 (2005), the court held that the right to be free from shackling in a jury trial, absent the presence of a special need, is based on due process under the Fifth and 14th Amendments and that the constitutional "rule has deep roots in the common law."
However, Deck went on to state that "Blackstone and other English authorities recognized that the rule did not apply at 'the time of arraignment,' or like proceedings before the judge," concluding that the rule "was meant to protect defendants appearing at trial before a jury." Accord, in United States v. Howard, 480 F.3d 1005 (9th Cir. 2007), the court upheld shackling at federal pre-trial proceedings without an individualized showing because "[t]he policy at issue concerns only proceedings conducted without the presence of a jury."
The type of showing needed to shackle defendants in nonjury proceedings is unclear. The California Supreme Court in People v. Fierro, 1 Cal.4th 173 (1991), found that the policies underlying restrictions on the use of physical restraints in jury trials "have application to other proceedings." The Court of Appeal in Solomon v. Superior Court, 122 Cal.App.3d 532 (1981), found that the "The reasoning of Duran forbids physical restraint even at a preliminary examination in the absence of a showing of good cause."
However, Fierro declined to hold that the Duran standard of "manifest need" must be shown at preliminary hearings. Instead, Fierro held that defendants cannot be shackled at preliminary hearings absent "some showing of necessity," and that "a lesser showing than that required at trial is appropriate." Fierro did not specify what "lesser showing" would suffice. The magistrate's failure to articulate any justification for the use of physical restraints in Fierro was an abuse of discretion, but the irregularities at the preliminary hearing resulted in no prejudice at trial and the conviction was affirmed.
The rule regarding the shackling of minors facing criminal charges in juvenile court was articulated in Tiffany A. v. Superior Court, 150 Cal.App.4th 1344 (2007). Tiffany A. held that minors cannot be shackled in any juvenile court proceedings without an individualized showing of need, the same as in jury trials, even though no jurors are present in juvenile court. Yet, this ruling is not inconsistent with opinions upholding shackling adult defendants based on a lesser showing because of the special concerns of handling minors in court. As Tiffany A. concluded, "The objectives of the juvenile justice system differ from those of the adult criminal justice system, and thus justify a less punitive approach to those who stand accused."
James R. Brandlin is a Los Angeles Superior Court judge.
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