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self-study / Criminal Law

Oct. 30, 2017

Security concerns in the courtroom

Jacqueline A. Connor

ADR Services, Inc.

1507 7th St. Suite 580
Santa Monica , CA 90401

Phone: (310) 266-6034


USC Law School

Jacqueline A. Connor is a retired judge of the Los Angeles County Superior Court.

The objective of this article is to familiarize bench officers and lawyers with steps a trial court can take to ensure security in the courtroom. Readers will learn about how a criminal defendant's right to a fair trial must not be compromised by security measures, the "manifest need" standard which must be satisfied prior to the use of restraints in a jury trial, and the applicable standards in non-jury proceedings and in employing other security procedures.


A trial court has broad power to maintain courtroom security and orderly proceedings. People v. Virgil, 51 Cal. 4th 1210 (2011); People v. Hayes, 21 Cal. 4th 1211 (1999). A defendant has a right to be tried in an atmosphere free of partiality unless circumstances support added security precautions. Kennedy v. Cardwell, 487 F.2d 101 (6th Cir. 1973). Penal Code Section 688 reflects this balance, providing, "No person charged with a public offense may be subjected ... to any more restraint than is necessary for his detention."

In deciding whether restraints may be necessary, the court may take into account factors traditionally relied upon in gauging potential security problems and risk of escape. Factors can include evidence establishing that the defendant is a flight risk, a safety risk, or that he or she is likely to disrupt the proceedings or otherwise engage in nonconforming behavior. People v. Gamache, 48 Cal. 4th 347 (2010). A defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury's presence, unless there is a showing of a "manifest need for such restraints." People v. Simon, 1 Cal. 5th 98 (2016); People v. Duran, 16 Cal. 3d 282 (1976); People v. Billie, 10 Cal. App. 5th 434 (2017).


Upon a proper showing, the trial court is vested with the authority to order physical restraints most suitable to the attendant circumstances. Simon; Duran. The trial court has a sua sponte duty to initiate proceedings to ensure a due process determination of necessity. Duran. While a court need not conduct a formal hearing (People v. Cox, 53 Cal. 3d 618 (1991)), a showing in support of a determination to impose restraints must appear as a matter of record. Duran. A confederate's possession of a handcuff key, hearsay evidence of the defendant's possible access to one, and a deputy's testimony of the defendant's "high escape risk" status were sufficient to support a finding of a risk the defendant "might attempt" an escape. People v. Sheldon, 48 Cal. 3d 935 (1989).

The decision belongs to the court and cannot be delegated to law enforcement. People v. Ervine, 47 Cal. 4th 745 (2009); People v. Hill, 17 Cal. 4th 800 (1998). The trial court, not security personnel, must make an independent determination as to the need for restraints. See People v. Mar, 28 Cal. 4th 1201 (2002); Small v. Superior Court, 79 Cal. App. 4th 1000 (2000). If restraints are used which are visible to the jury, the court must advise the jury that the restraints have no bearing on a determination of guilt. Duran. In Illinois v. Allen, 397 U.S. 337 (1970), the U.S. Supreme Court stated, "there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like [the defendant]: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly."

The California Supreme Court in People v. Ward, 36 Cal. 4th 186 (2005), found that in the absence of a timely objection allowing the trial court an opportunity to set out the reasons for a leg brace, a defendant's complaint was not preserved on appeal. A defendant must thus object to the use of physical restraints or the issue is waived on appeal. People v. Stankewitz, 51 Cal. 3d 72 (1990).

The prosecution carries the burden of ensuring that the record demonstrates a manifest need for restraints. People v. Prado, 67 Cal. App. 3d 267 (1977). The defendant need not show prejudice. The error is reversible unless the prosecution proves beyond a reasonable doubt that the error did not contribute to the verdict. People v. Soukomlane, 162 Cal. App. 4th 214 (2008). However, the unjustified shackling of a defendant is harmless when the shackles were not visible to the jury, and there was no impairment of the defendant's ability to communicate with counsel and participate in his defense. Ervine.

Jury Trial Standards

Shackles visible to the jury can affect the credibility with which jurors view a testifying defendant. See Deck v. Missouri, 544 U.S. 622 (2005); accord People v. McDaniel, 159 Cal. App. 4th 736 (2008). Shackles may also affect a defendant's mental state during trial. They may cause the defendant to feel confused, frustrated or embarrassed, impairing their mental faculties. They may impair a defendant's ability to cooperate or communicate with counsel and may inhibit a defendant's willingness to take the stand and testify on his or her own behalf. Hill.

The California Supreme Court noted that, "[m]anifest need arises only upon a showing of unruliness, an announced intention to escape, or evidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained." Cox. The requirement of "manifest need" applies also to shackling defense witnesses. People v. Allen, 42 Cal. 3d 1222 (1986); People v. Ceniceros, 26 Cal. App. 4th 266 (1994).

The nonconforming behavior must appear as a matter of record and the imposition of restraints in the absence of a record showing violence or the threat of violence is an abuse of discretion. Cox. The determination cannot be based on rumor and innuendo. People v. Combs, 34 Cal. 4th 821 (2004).

"Manifest need" was fairly strictly construed in the past to require evidence of disruptions and violence in the courtroom. The California Supreme Court broadened this requirement to allow the court to properly consider a defendant's conduct outside the courtroom. People v. Hawkins, 10 Cal. 4th 920 (1995). Hence, presently the basis for a finding of manifest need is not restricted to actions by the defendant inside the courtroom. Simon; People v. Livaditis, 2 Cal. 4th 759 (1992); Cox.

A defendant's outbursts against transportation deputies and a pattern of agitation outside court constituted sufficient "manifest need," despite numerous appearances without disruption. People v. Hamilton, 41 Cal. 3d 408 (1985). No "manifest need" was shown merely by the court's consideration of the defendant's size and the seriousness of the charges. People v. Rich, 45 Cal. 3d 1036 (1988).

A recent case held the trial court's efforts to balance the right of self-representation and security was met and manifest need was shown. The pro per defendant (with advisory counsel) had a history of violence: He had attacked other inmates when serving a federal prison term for stabbing another person and puncturing their lung, and while waiting trial he was found to possess razor blades and attacked fellow inmates. The court had defendant shackled and one hand cuffed. Defendant was dressed in civilian clothing, one had was free for note taking, the prosecutor offered to remain seated at counsel table, no sidebars were conducted in the presence of the jury, defendant was provided runners to deliver exhibits to witnesses, the handcuffs were covered with black masking tape, counsel table had a black drape, and the jurors were admonished not to consider as evidence anything regarding restraints. Billie.

Non-Jury Trial Standards

Pursuant to Duran, subsequent cases refer to the dignity of the individual, respect for the court and integrity of the system to extend the rule, under a lesser showing for non-jury proceedings. See People v. Fierro, 1 Cal. 4th 173 (1991); Solomon v. Superior Court, 122 Cal. App. 3d 532 (1981). React belts, like shackles, pose serious medical risks, and may impair a defendant's capacity to concentrate on the events in the courtroom, and interfere with the ability to assist counsel. Mar.

Manifest need requirements were applied in mentally disordered offender hearings. See People v. Fisher, 136 Cal. App. 4th 76 (2006); People v. Vance, 141 Cal. App. 4th 1104 (2007). In Small, the appellate court assumed without discussion, based on Fierro, that Duran applied to pretrial proceedings but found sufficient manifest need. Duran also has been applied to preliminary hearings (Solomon; Fierro), though Fierro stated, "while the dangers of unwarranted shackling at the preliminary hearing are real, they are not as substantial as those presented during trial. Therefore, a lesser showing than that required at trial is appropriate."

The "lesser showing" has also been applied to a jurisdictional hearing in juvenile court. In re DeShaun M., 148 Cal. App. 4th 1384 (2007). A blanket policy of shackling juveniles due to inadequate security in court facilities without individualized findings has been held to be improper. Tiffany A. v. Superior Court, 150 Cal. App. 4th 1344 (2007). Nonetheless, a lesser showing is needed than would be required in a jury trial. In re DeShaun M.

A blanket policy requiring leg-shackling of pretrial detainees in a first appearance in a large unsecured courtroom was upheld based on a legitimate government interest in security. It was the least obtrusive means to provide safety and left an option for a defendant to move the court to remove the shackles and otherwise make an individualized determination whether circumstances warranted the removal of shackles. U.S. v. Howard, 480 F.3d 1005 (9th Cir. 2007).

A blanket policy for shackling all pretrial detainees appearing in front of judges for all nonjury appearances based on prior security incidents and understaffing was rejected in United States v. Sanchez-Gomez, 859 F.3d 649 (9th Cir. 2017) (en banc). The 9th U.S. Circuit Court of Appeals found that, to order shackling, a trial court mustm, "make an individualized decision that a compelling government purpose would be served and that shackles are the least restrictive means for maintaining security and order."

The 9th Circuit decision in Sanchez-Gomez is contrary to existing U.S. Supreme Court law on the same topic. Deck noted that the common law rule establishing the right to be free from restraints did not apply at, "'the time of arraignment,' or like proceedings before the judge," and, "was meant to protect defendants appearing at trial before a jury." The decisions of the lower federal courts, although persuasive and entitled to great weight, are not binding on state courts, even on federal questions. People v. Bradley, 1 Cal. 3d 80 (1969); People v. Weeks, 165 Cal. App. 4th 882 (2008).

Other Security Measures

"Neither due process nor any other constitutional right of a criminal defendant mandates a hearing on the necessity for courtroom or courthouse security" involving security screening or stationing additional security personnel in the courtroom. Hayes; People v. Jenkins, 22 Cal. 4th 900 (2000). The presence of guards need not be interpreted as a sign that a defendant is particularly dangerous or culpable. Jurors may as easily interpret their presence as protecting those inside the courtroom from disruptions emanating from outside the trial court. People v. Stevens, 47 Cal. 4th 625 (2009). Unless the numbers involved are unreasonable, the presence of officers in the courtroom need not be justified. Duran.

Security procedures such as screening outside the courtroom, metal detectors, magnetometer searches, or the presence of court personnel are not inherently prejudicial and need not be justified by evidence of imminent threats to the security of the court. See People v. Marks, 31 Cal. 4th 197 (2003); Jenkins.

However, a trial court cannot have a routine policy of stationing an officer at or near the witness stand when a defendant testifies. The court must balance the interests of security with a guarantee of fundamental fairness, and should state the reasons on the record why this security measure outweighs prejudice to a testifying defendant. Upon request, the court should give a cautionary instruction to jurors either at the time of testimony or with closing instructions advising jurors to disregard security measures related to defendant's custodial status. People v. Hernandez, 51 Cal. 4th 733 (2011).


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