You Can Hold Me Down: Restraining the Defendant During Trial

In Stone Free, Jimi Hendix sang: “You can’t hold me down.” Perhaps it’s no surprise but criminal procedure doesn’t conform to Hendrix’s lyrics. As illustrated by the recent case State v. Stanley, a trial judge can restrain a criminal defendant during trial. Since I get a fair number of questions about a judge’s authority to do this and the proper procedure, I’ll use this post to address the issue.

G.S. 15A-1031 authorizes the use of physical restraints on a defendant (or witness) in the courtroom under certain circumstances. Specifically, it provides that a trial judge may order a defendant to be subjected to physical restraint in the courtroom when the judge finds the restraint to be reasonably necessary to maintain order, prevent the defendant’s escape, or provide for the safety of persons. If the judge orders a defendant restrained, the judge must:

• Enter in the record, out of the presence of the jury and in the presence of the person to be restrained and that person’s counsel, if any, the reasons for the judge’s action. G.S. 15A-1031.
• Give the restrained person an opportunity to object. Id.
• Unless the defendant or his attorney objects, instruct the jurors that the restraint is not to be considered in weighing evidence or determining the issue of guilt. Id.

If the restrained person contests the stated reasons for restraint, the judge must conduct a hearing and make findings of fact. Id.

A judge’s decision to employ restraints is reviewed for abuse of discretion. When exercising its discretion, a trial court may consider, among other things:

• the seriousness of the charge;
• the defendant’s temperament and character;
• the defendant’s age and physical attributes;
• the defendant’s past record;
• the defendant’s past escapes, attempted escapes, or evidence of a present plan to escape;
• the defendant’s threats to harm others or cause a disturbance;
• the defendant’s self-destructive tendencies;
• the risk of mob violence or of 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 alternative remedies.

See, e.g., State v. Stanley, __ N.C. App. __, 713 S.E.2d 196, 200 (2011). The alternative remedies will vary depending on the individual case but may include informing the defendant, out of the presence of the jury, of the required conduct and the consequences for failure to behave appropriately; ordering a recess to allow the defendant to calm down; or requiring additional court security personnel in the courtroom.

Although a trial judge may order the use of restraints, the appellate courts have expressed a preference against the practice, particularly the use of shackles. The North Carolina Supreme Court has stated that shackling of a defendant should be avoided because it may interfere with the defendant’s thought process, ability to communicate with counsel, and the dignity of the trial process; also it is likely to create a prejudice in the minds of the jurors, suggesting that the defendant is an obviously bad and dangerous person who is guilty. State v. Tolley, 290 N.C. 349, 366 (1976). Also, judges should be careful to avoid the use of restraints in a manner that could deprive a defendant of his or her right to a fair trial. State v. Simpson, 153 N.C. App. 807, 809 (2002) (referencing due process and fair trial guarantees of the Fourteenth Amendment to the United States Constitution and Art. I, Sec. 19 of the North Carolina Constitution).

Typically, the restraints used are wrist and/or ankle shackles. However, in extreme situations, other types of restraints may be required, such as securing the defendant to a chair or use of a mask. State v. Forrest, 168 N.C. App. 614, 621 (2005) (the trial court did not abuse its discretion by ordering that the defendant be handcuffed, secured to his chair, and use of a mask). To protect the defendant’s constitutional rights, the judge should undertake to prevent the jury from viewing the defendant in restraints. This may involve having the defendant brought to and from the courtroom outside of the presence of the jury; having the defendant brought to and from the witness stand outside of the presence of the jury; and using table skirts or other barriers to prevent the jury from seeing the defendant’s restraints.

And finally, if order and safety cannot be assured through the use of physical restraints or if restraints cannot be administered in a way that ensures a fair trial and the case is a non-capital one, the trial judge may need to consider removing the defendant from the courtroom. If you want to know more about trial in absentia, take a look my previous post here on that topic.