Parr, Royse M.

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University of Tulsa College of Law

Tulsa Law Review Volume 1 Issue 1 1964 Criminal Law: Restraint of the Accused during Trial Royse M. Parr Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr  Part of the Law Commons Recommended Citation Royse M. Parr, Criminal Law: Restraint of the Accused during Trial, 1 Tulsa L. J. 54 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol1/iss1/9 This Casenote/Comment is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact megan-donald@utulsa.edu. TULSA LAW JOURNALCmINAL LAW: RESTRAINT OF THE AccusED DUNG TIALIt is often necessary for a criminal defendant to be restrainedin some manner during trial. The main danger created by re-straining the defendant by such means as shackles, chains, orarmed guards is that prejudice might be formed in the mindsof the jurors upon viewing the accused before them. They mightinfer that the defendant, guilty or not of this charge, is obvious-ly bad or he would not be so restrained. The jury might ask,'Why should we believe the defense of this man who is noteven trusted by the judge and sheriff?" By his appearance, thedefendant may possibly be a silent witness agast himself.The spirit of the law is that even though a person is ac-cused of a heinous crime, as long as his intent is to properlydefend the charges against him, he will be allowed to do sounrestrained. Blackstone stated:~. .. LAJnd it is laid down in our ancient books that, thoughunder an indictment of the highest nature, he must be broughtto the bar without irons or any manner of shackles or bonds,unless there be evident danger of an escape, and then hemay be secured with irons."'Modern practice has been to allow restraint of the accusedin more instances than the "evident danger of an escape" notedby Blackstone.2 It was ruled in Way v. United States" that a de-fendant could be restrained to prevent his escape, prevent himfrom injuring others, or to maintain a quiet and peaceable trial.Restraint of the defendant is a matter within the discretionof the trial court in most jurisdictions. Reversible error willresult only when the trial court clearly abused its discretion, orwhen the defendant was actually prejudiced before the jury.4The Oklahoma Court of Criminal Appeals first considered theproblem of restraint in DeWolf v. State. The defendant was heldto 'have been properly shackled during his entire trial for themurder of a policeman. The appellate court remarked that theextent of restraint during trial is to be goverened by: (1) Thecharacter of the accused. (2) His disposition toward being aviolent and dangerous person. (3) His record for escapes andpossibilities of attempts to release him from custody. (4) Thepossibility his misconduct could obstruct the work of the court.The court gave support to the view that armed guards, wherefeasible, should be resorted to instead of handcuffs and shackles.In its next session after the DeWolf decision, the Oklahomalegislature added a clause to the then existing statute on restraint.14 BLAcxsToNE, ComwENTAXUEs *322.2Ibid.8285 F.2d 253 (10th Cir. 1960).4 State v. Brooks, 352 P.2d 611, 613 (Hawaii 1960).5 95 Okla.Cr. 287, 245 P.2d 107 (1952).[Vol. 1, No. 11Parr: Criminal Law: Restraint of the Accused during TrialPublished by TU Law Digital Commons, 1964NOTES AND COMMENTSThe statute previously read: "... ENlor can a person chargedwith a public offense be subjected before conviction to any morerestraint than is necessary for his detention to answer the charge."6The following clause vas added: ".... and in no event shall hebe tried before a jury while in chains and shackles."rThe Oklahoma Court of Criminal Appeals, through JudgeNix, gave bristling support to the new statute in its first court test,French v. State,8 in which a murder conviction was reversed.The accused had appeared before the jury handcuffed, his armsshackled to a six-inch leather belt around his body, and withthree armed guards accompanying him. Judge Nix colorfullycondemned the restraint of the defendant by stating:"Though biologically speaking, man may be an animal, itwas never intended that he be treated as such in the realmof criminal jurisprudence. If we permitted the subjection ofman to such treatment before the courts of our land, we havepaved the way for him to be tried while tied to a log or ina steel cage, as well as chains and shackles. Barbarism hasbeen abandoned and must never be permitted to creep backthrough the crevices created by lenient rules of law."9The French case holds that the "modem reasoning" whichmotivated the amended statute is essentially: (1) One chargedwith a crime is entitled to appear in court with free use of hismental and physical facilities. (2) The inherent right, that everydefendant is presumed innocent until proven guilty, would beviolated if an accused is shackled or chained. That this is only oneview is indicated by State v. Hashimoto'0 which placed more re-liance on the judgment of jurors who witness a handcuffed de-fendant than the Oklahoma legislature presumably did when itchanged the statute. The court remarked that:'It is reasonable to assume that a jury panel, particularlywhen found acceptable to the parties, as it was the case here,is composed of men and women of average intelligence andcircumspection as to their sworn duty as jurors to examine,in consonance with the court's instructions on the governinglaw, the evidence presented and render a fair, unbiased andimpartial verdict. It is a farfetched conjecture that jurorsunder oath would spontaneously harbor prejudice immed-iately upon seeing a defendant brought to court in man-acles.""Because chains and shackles cannot be used by the Oklahoma6 2 ORLA. STAT. § 15 (1951).7 22 OxLA. STAT. § 15 (1961).8 377 P.2d 501 (Okla.Cr. 1962).9 Id. at 504.10 377 P.2d 728 (Hawaii 1962).11Id. at 734.196432Tulsa Law Review, Vol. 1 [1964], Iss. 1, Art. 9https://digitalcommons.law.utulsa.edu/tlr/vol1/iss1/9TULSA LAW JOURNALcourts, the only practical method left to restrain the defendantis by the use of guards. The close proximity of such guards couldalso prejudice a defendant before the jury. The Missouri SupremeCourt considered this type of restraint in State v. Johnstone.12 Thedefendant, charged with first degree robbery, made statementsthat he intended to create a disturbance during the trial. It wasruled proper to have two deputies not in uniform who had con-cealed weapons as a reasonable precaution for maintenance oforder and retention of custody of the defendant. These deputieswere stationed a considerable distance from the counsel tableand appeared to be a part of the courtroom officials. This pro-cedure lessened the opportunity for prejudice to form in the mindsof the jurors.Since 1871,23 ninety-five appellate opinions have consideredthe problem of restraint. Only nine of these cases were re-versed on appeal.14 No federal appellate court has reversed anylower court's decision, and the United States Supreme Court hasnot yet written any decision concerning courtroom restraint.An appellate court should be informed why the trial courtallowed the restraint of the accused. Such reasons do not usudllyappear in the record because judges have seldom explained theirrulings to the jury. A hearing should be granted to afford the de-fendant an opportunity to rebut any allegations of necessity forrestraint. This should be done out of the presence of the jury soas to not further prejudice the accused. The most desirable meth-od is to hold a hearing prior to the trial by jury. The only casein which this practice is reported to have been followed is Peoplev. Bryant.'5 Bryant was a jail escapist who was confronted withseveral felony charges. Upon request of the district attorney,the trial court conducted a hearing in the nature of a trial withouta jury to determine if the restraint was necessary. The witnesseswere cross-examined by the defense which was given an oppor-tunity to introduce evidence. It was concluded that the proofsubmitted and testimony given clearly indicated that there wereimperative reasons for the handcuffing. The appellate court com-mented that it is of paramount importance that the trial courtstate its reasons for its action in allowing such restraint.12335 S.W.2d 199 (Mo.), cert. denied 364 U.S. 842, 81 Sup.Ct. 81,5 L.Ed.2d 66 (1960).13 The first appellate court case in this country involving restraint wasPeople v. Harrington, 42 Cal. 165 (1871) in which the defendants weretried in irons without evident necessity for the crime of robbery.14 Each of the nine cases that has been reversed on appeal is brieflysummarized here with the exception of the Harrington case found in note13. Defendant was convicted of simple robbery and was brought into courthandcuffed when it was not necessary. Montoya v. People, 345 P.2d 1062(Colo. 1959). It was improper to have brought accused charged with break-ing and entering with intent to commit a misdemeanor into court clothedas a convict and in chains in the presence of the jury when he had not beenpreviously convicted of a crime. Shultz v. State, 179 So. 764 (Fla. 1938).['Vol. 1, No. I3Parr: Criminal Law: Restraint of the Accused during TrialPublished by TU Law Digital Commons, 1964NOTES AND COMMENTSThe procedure followed in the Bryant case could be adoptedin any jurisdiction without the necessity of statutory change. Allthat is necessary is that counsel for either the defense or theprosecution request the hearing, and that the trial court grantsuch a hearing in exercising its sound judicial discretion. Thecourts should not be hesitant in granting such a hearing unlessit is obviously a delaying tactic. Of course, there is no need forsuch a hearing in Oklahoma unless it is attempted to undulyrestrain the defendant by other means than chains or shackles.The appellate courts frequently resort to the practice ofholding that they will not infer prejudice in restraint cases unlessthe prejudice is sustained by circumstances in the record. Thispresents the defendant with a seemingly insurmountable hurdlebecause he has no way of actually proving that the jurors formedprejudices. Counsel cannot dissect the mind of a juror and includeits contents in his appeal brief. Usually, the only apparent courseopen to him is to object to the restraint, and 'hope for a sympa-thetic hearing on appeal. This seldom happens. Although thehearing would demonstrate abuse of discretion, it lends nothingto a determination of the effect of restraint on the jury. It issubmitted that the "effect on the jury" test is unrealistic, un-workable, and should be abandoned. The state of mind of eachjuror cannot possibly be perceived through the mere printed wordof the transcript or appeal brief.Without a hearing, it is possible that the most harmlessDefendant's rape conviction was improper because two of his witnesses,who had been brought from the state prison, were manacled during trial.State v. Coursolle, 97 N.W.2d 472 (Minn. 1959). The Missouri SupremeCourt first announced the rule that there must be some reason based onthe conduct of the prisoner at the time of the trial to authorize his handsto be chained in irons. Although the defendant had assaulted a person inthe same courtroom three months previously, his conviction of first degreemurder was reversed because of undue restraint. State v. Kring, 64 Mo. 591(1877), reed 107 U.S. 221, 2 Sup.Ct. 443, 27 L.Ed. 506 (1883) onlyin reference to an ex post facto law. The rule announced in the Kring casewas applied, and a reversal was granted because the court permitted thesheriff to keep defendants shackled during the empaneling of the jury. Statev. Rice, 149 S.W.2d 347 (Mo. 1941). Defendant, charged with the crimeof murder, was improperly brought before the jury on two instances hand-cuffed with his arms shackled to a six-inch leather belt around his body,and escorted by three armed guards. See note 5 supra. Several errors wereruled on for reversal in State v. Smith, 8 Pac. 343 (Ore. 1883), oneof which was that defendant was tried with irons on his feet. He hadkilled a penitentiary officer. The court noted the Harrington and Kringdecisions. In State v. Williams, 50 Pac. 580 (Wash. 1897), the defendant,charged with burglary, and his witnesses were both manacled in thecourtroom, and the former at a view of the allegedly burglarized premises.The court stated that there was no impelling necessity for this restraintwhich may have to some extent deprived the prisoner of the free and calmuse of all his faculties.155 Misc.2d 446, 166 N.Y.Supp.2d 59 (Richmond County Ct. 1957),aff'd 12 App.Div.2d 654, 210 N.Y.Supp.2d 800 (1960).196414Tulsa Law Review, Vol. 1 [1964], Iss. 1, Art. 9https://digitalcommons.law.utulsa.edu/tlr/vol1/iss1/9

Criminal Law: Restraint of the Accused during Trial

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Criminal Law: Restraint of the Accused during Trial

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