Under what circumstances must a defendant have to testify with a police officer standing guard to protect the jury?

Jay Leiderman
By: Jay Leiderman
August 18 2016


In People v. Hernandez, (2009) 175 Cal. App. 4th 940, the defendant testified in his Assault with a deadly weapon trial.  He was in custody.  The bailiff took up a position standing directly behind the defendant while the defendant was testifying.  When defense counsel objected, the court overruled that objection, saying that was the court’s practice in every case, no matter how trivial.  The judge refused to even give a jury instruction admonishing the jury not to convict based on this.

Defense counsel urged that having an armed court officer positioned behind appellant not just when he was seated at counsel table but also while he testified “is akin to having him shackled in front of the jury.” The court disagreed, stating, “[a]nd, also, it’s a [section] 245 [violation] with a very bad injury. I was actually afraid you were going to have him stand up and point to something, and he would get really close to a juror. No, the deputy will sit back there. He’s not shackled, nothing.”

Id. at 953.

Analogizing this to shackling, they rule, “When an armed guard escorts a defendant to and from the stand and remains closely behind him during his entire testimony, it is difficult to avoid inferring that the court or some other well informed law enforcement authority sees a ‘need to separate a defendant from the community at large’ or views the defendant as dangerous.”  Absent a specific showing of a need to do this for courtroom security, the judge can’t permit this.

In Estelle v. Williams, the court held unconstitutional the practice of forcing a defendant to wear prison clothing when appearing before the jury, explaining that “the constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment” and “furthers no essential state policy.” (Estelle v. Williams, supra, 425 U.S. at pp. 504-505.) Courts have similarly recognized that a defendant may be prejudiced if required to appear before the jury with visible physical restraints. (Deck v. Missouri (2005) 544 U.S. 622, 630-631, 635 [161 L.Ed.2d 953, 125 S.Ct. 2007] (Deck); Illinois v. Allen (1970) 397 U.S. 337, 344 [25 L.Ed.2d 353, 90 S.Ct. 1057] (Allen); People v. Duran (1976) 16 Cal.3d 282, 290-291 [127 Cal.Rptr. 618, 545 P.2d 1322] (Duran).) “Visible shackling undermines the presumption of innocence and the related fairness of the factfinding process,” because it “suggests to the jury that the justice system itself sees a `need to separate a defendant from the community at large.'” (Deck, at p. 630, citing Estelle v. Williams, at p. 503, and quoting Holbrook, supra, 475 U.S. at p. 569.) It also diminishes the defendant’s right to counsel by interfering with his or her “`ability to communicate'” with counsel and the “ability to participate in his own defense, say, by freely choosing whether to take the witness stand on his own behalf.” (Deck, at p. 631, quoting Allen, supra, 397 U.S. at p. 344.) Use of visible physical restraints undermines the dignity of the courtroom, which “includes the respectful treatment of defendants.” (Deck, at pp. 631-632.) Additionally, “[s]hackles may affect a defendant’s mental state during trial” by causing the defendant to “`feel confused, frustrated, or embarrassed, thus impairing his mental faculties.'” (People v. Hill (1998) 17 Cal.4th 800, 846 [72 Cal.Rptr.2d 656, 952 P.2d 673], quoting Spain v. Rushen (9th Cir. 1989) 883 F.2d 712, 722.)

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Courts have recognized, however, that use of physical restraints is sometimes necessary and that “in certain extreme situations, `binding and gagging might possibly be the fairest and most reasonable way to handle’ a particularly obstreperous and disruptive defendant.” (Holbrook, supra, 475 U.S. at p. 568, quoting Allen, supra, 397 U.S. at p. 344; see Deck, supra, 544 U.S. at p. 632.) Due to the “possible prejudice in the minds of the jurors, the affront to human dignity, the disrespect for the entire judicial system which is incident to unjustifiable use of physical restraints, as well as the effect such restraints have upon a defendant’s decision to take the stand, … 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.” (Duran, supra, 16 Cal.3d at pp. 290-291.) “[D]ue process does not permit the use of visible restraints if the trial court has not taken account 955*955 of the circumstances of the particular case.” (Deck, at p. 632.) When visible physical restraints are used, the trial court has a duty to instruct the jury sua sponte that the “restraints should have no bearing on the determination of the defendant’s guilt.” (Duran, at pp. 291-292.)

Id at 955-56.

In this situation, where appellant’s credibility was a major factor in the trial, the deck was severely stacked against him. Unlike any other witness, appellant was escorted to and from the witness stand by an armed law enforcement officer who remained to guard him during his testimony, and who stood or sat immediately behind him when he was not testifying. The court told the jury nothing about how to interpret this close monitoring and so it was free to draw the obvious inferences that the court viewed him as potentially dangerous and he was therefore likely to have committed the charged assault. Indeed, the prejudice from the procedure could have affected jurors entirely without their awareness. (See Holbrook, supra, 475 U.S. at p. 570 [“Even though a practice may be inherently prejudicial, jurors will not necessarily be fully conscious of the effect it will have on their attitude toward the accused.”].)

Id. at 965.  [this portion applied to my case, described below] Here, though there may well be another witness that takes the stand guarded by armed Sheriffs, that witness, Rene Enriquez, a self-styled “kingpin” of the Mexican Mafia turned informant, is serving a double life sentence for multiple murders.  The inference will be that defendant is dangerous to the point of Enriquez, and that he warrants the same type of security as a double murderer.  Defendant has behaved perfectly at every court date and there is no reason to shackle him or have guards stand behind him while he testifies.  Accordingly, to have guards stand behind defendant would impinge upon his constitutional right to testify in his own defense.


This is from a court motion written by Attorney Jay Leiderman in a case involving Mexican Mafia defendants and street and prison gang extortion, drug trafficing, robbery and attempted murder (homicide) allegations.

See: http://www.vcstar.com/news/local/county/officials-say-arrests-of-mexican-mafia-are-effective-despite-revolving-door-ep-584436705-351259051.html

The case was the largest ever prosecution in the history of Ventura County.  Jay Leiderman represented the lead defendant.  His client faced 34 life terms and over a thousand years in prison.  He was sentenced to 27 years after pleading in the middle of a jury trial.

This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website: https://www.jayleiderman.com/contact/


5 thoughts on “Under what circumstances must a defendant have to testify with a police officer standing guard to protect the jury?

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    “You’re talking about a really bright, gifted kid in terms of all things Internet. And at some point after getting on the right path he could do some really good things,” Leiderman adds. “I feel that monitored Internet access for six years is a bit on the hefty side. It could sideline his whole life–his career path, his art, his skills. At some level it’s like taking away Mozart’s piano.”

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