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self-study / Criminal Law

Controlling the Courtroom

Connor jacqueline web

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.

A judge presiding over a criminal case involving a pro per defendant must always walk a fine line. On the one hand, the judge must ensure the defendant is treated fairly and accorded due process, but on the other, the judge must maintain control of the courtroom, not allowing the defendant's unreasonable demands and disruptions to undermine judicial proceedings.

By reading this article and taking the self-study test, readers will learn about how a judge may maintain control of the courtroom in cases involving pro per defendants. Topics covered include the balance a judge must maintain, excluding a defendant from proceedings due to being disruptive or because of voluntary absences, and revoking pro per status.

The Balance

Trial judges should be aware of their demeanor with a pro per and caution against any suggestion of partiality. A defendant is entitled to an atmosphere free of partiality. Kennedy v. Cardwell, 487 F.2d 101 (6th Cir. 1973).

Although finding no prejudice warranting a reversal, the Court of Appeal in People v. Harbolt, 206 Cal. App. 3d 140 (1988), noted the validity of a pro per's complaint that the court favored the prosecution by assisting the district attorney while refusing to assist the pro per. Harbolt provided as an example an instance in which the court reminded the district attorney about calling certain witnesses to lay a foundation that had not been laid, while simply denying the defendant's motion to introduce evidence without comment when he had failed to lay a necessary foundation.

In People v. Clark, 3 Cal. 4th 41 (1992), however, similar pro per complaints were found baseless. The pro per claimed the trial court was biased against him due to its sua sponte objections and the increased number of objections sustained and comments made, as compared to the treatment of the prosecutor. Clark pointed out the objections were well-founded and acknowledged the strategy of the prosecution in deliberately not objecting despite adequate grounds.

The trial judge clearly has a duty and obligation to control the orderly process of court proceedings. Code of Civ. Proc. Sections 128(a), 177; People v. Hayes, 21 Cal. 4th 1211 (1999). This obligation extends to limitations and restrictions on cross-examination, and the control of unruly, disruptive defendants, pro per or otherwise. "Proper case management is essential to the overall administration of justice," hence a trial court may not allow a pro per defendant "to frustrate the orderly administration of justice under the umbrella of the right of self-representation." People v. Peyton, 229 Cal. App .4th 1063 (2014).

The U.S. Supreme Court in Faretta v. California, 422 U.S. 806 (1975), the seminal case that established a defendant's right to proceed in pro per, observed that "[t]he right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law."

Exclusion Due to Disruptions

"A criminal defendant has a right under the Sixth and Fourteenth Amendments to the federal Constitution, and under article I, section 15 of the California Constitution, to be present at his trial. ... A defendant also has statutory rights to be present under Penal Code sections 1043 and 977. ... The right to be present, however, is a right that is not absolute." People v. Howze, 85 Cal. App. 4th 1380 (2001). "Due process does not require the presence of the defendant if his presence means that there will be no orderly process at all." Illinois v. Allen, 397 U.S. 337 (1970).

The Penal Code specifically authorizes a judge to remove a disruptive defendant from the courtroom during a trial. Penal Code Section 1043(b) provides that the absence of the defendant after the trial has commenced will not prevent continuing the trial, including the return of a verdict, where: (1) after being warned by the judge that he will be removed if he continues his disruptive behavior, the defendant insists on conducting himself in a manner so disorderly, disruptive and disrespectful of the court that the trial cannot be carried on with him in the courtroom; or (2) any case not punishable by death where the defendant is voluntarily absent.

The court thus has the right to remove a defendant who, despite warnings, persists in unruly, contumacious behavior. People v. Hayes, 229 Cal. App. 3d 1226 (1991). A disruptive defendant waives his right to be present at trial. People v. Welch, 20 Cal. 4th 701 (1999). There are many cases on what constitutes a disruption justifying removal of a defendant.

"A trial court need not wait until actual violence or physical disruption occurs within the four walls of the courtroom in order to find a disruption within the meaning of [Penal Code] section 1043." People v. Price, 1 Cal. 4th 324 (1991). The defendant in Price, after announcing he would not appear before the jury in chains, walked out of the courtroom and declined to dress in civilian clothes to be returned to the courtroom. The Supreme Court found this disruption was sufficient to exclude the defendant from trial, because the defendant had recently assaulted officers during transportation to the courtroom, and the judge could reasonably anticipate that any effort to bring defendant to the courtroom against his will would endanger the safety of the transporting officers and of persons in the courtroom. (On the flip side, People v. Huggins, 38 Cal. 4th 175 (2006), held a court is not required to remove a defendant immediately upon the first disruption.)

In People v. Hayes, it was held the judge properly removed a defendant from trial after repeated outbursts during his mother's testimony. The defendant constantly interrupted the witness with profane comments, threatened counsel and an officer, and was repeatedly warned about his conduct. People v. Sully, 53 Cal.3d 1195 (1991), held there was no error in removing a defendant from trial when he walked out of the courtroom and told the judge and counsel that he would disrupt proceedings if he returned.

The common thread in many of these cases is that a judge may reasonably rely on a defendant's past behavior in determining whether disruptions are likely to continue.

Of course, the Penal Code also provides that a defendant excluded due to disruptive behavior after being warned by the judge "may reclaim his right to be present at the trial as soon as he is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts." Pen. Code Section 1043(c). In Sully, the defendant was not warned prior to being removed as required by the statute, but he was told he was entitled to be present in court at any and all times, provided he did not disrupt the proceedings. The Supreme Court in Sully held "A further, express warning was unnecessary in view of defendant's actual disruption of the trial and his expressed intention to do so again. Defendant was given the opportunity mandated by the statute to correct his errant behavior; he declined it. No more was required to justify his voluntary absence. [Penal Code s]ection 1043, like other provisions of law, does not require idle acts."

Voluntary Absences

Pro per defendants will sometimes voluntarily decide to not be present during trial proceedings, and after being convicted, raise the issue that their absence deprived them of their right to due process and to confront witnesses. But, Howze made it clear that "[a] defendant who voluntarily absents himself from a trial that has commenced in his presence cannot later complain when the trial continues to a verdict in his absence."

In non-capital cases, a defendant may voluntarily waive his presence. Pen. Code Sections 977, 1043. Even in capital cases, a defendant can waive his presence at a critical stage. Price; Welch.

The defendant's waiver of his or her right to be present at trial must be voluntary, knowing and intelligent. See People v. Robertson, 48 Cal. 3d 18 (1989). In Price, the defendant waived his presence on several occasions in order to participate in court-ordered recreation and to see a doctor. There was no involuntary waiver because the defendant was forced to choose between court and these other activities. There was no showing jail officials were implementing the court's orders of five hours per week of recreation in order to interfere with the trial.

Revocation of Pro Per Status

A court can (but is not required) to revoke a defendant's pro per status upon engagement in disruptive or obstructionist behavior. People v. Butler, 47 Cal. 4th 814 (2009). A defendant's pro per status originally could only be revoked for in-court disruptions. Ferrel v. Superior Court, 20 Cal. 3d 888 (1978). But, current cases support revocation of a pro per's status for out-of-court disruptions where they support a high likelihood of in-court disruptions. People v. Carson, 35 Cal. 4th 1 (2005); People v. Doss, 230 Cal. App. 4th 46 (2014).

In revoking pro per status due to obstructive behavior, in addition to considering "the nature of the misconduct and its impact on the trial proceedings," the judge should consider "the availability and suitability of alternative sanctions" because "[m]isconduct that is more removed from the trial proceedings, more subject to rectification or correction, or otherwise less likely to affect the fairness of the trial may not justify complete withdrawal of the defendant's right of self-representation." Carson. Under Carson, the court should also consider "whether the defendant has been warned that particular misconduct will result in termination of in propria persona status." And, "whether the defendant has 'intentionally sought to disrupt and delay his trial'" is also a relevant consideration but, ultimately, the key consideration is "the effect of the misconduct on the trial proceedings, not the defendant's purpose." "To be sure, self-representation cannot be terminated for forceful advocacy. [But, i]t can be terminated for repetitious personal attacks on the integrity of the trial court and other personnel." Peyton.

Finally, a defendant does not have a right to a continuance when pro per status is revoked and standby counsel takes over the case. Any disadvantage suffered by a defendant due to insufficient time to prepare is of the "defendant's own doing." People v. Davis, 189 Cal. App. 3d 1177 (1987), overruled on other grounds in People v. Snow, 44 Cal. 3d 216 (1987).


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