12.10Defendant’s Conduct and Appearance at Trial
1.Generally
“The United States Constitution and the Michigan Constitution each guarantee that a criminal defendant receives due process of law.” People v Horton, 341 Mich App 397, 401 (2022),citing US Const, Am XIV; Const 1963, art 1, § 17. “Implicit in this guarantee is that each criminal defendant enjoys the right to a fair trial, and essential to a fair trial is the defendant’s right to be presumed innocent.” Horton, 341 Mich App at 401; see also In re Winship, 397 US 358, 364 (1970) (due process entitles an accused to the presumption of innocence). “Under the presumption of innocence, guilt must be determined solely on the basis of the evidence introduced at trial rather than on official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.” Horton, 341 Mich App at 401; see also Taylor v Kentucky, 436 US 478, 485 (1978). Thus, “a criminal defendant generally has the right to appear before the court with the appearance, dignity, and self-respect of a free and innocent [person.]” People v Payne, 285 Mich App 181, 187 (2009) (quotation marks and citation omitted).
“A defendant is entitled to a fair trial but not a perfect one for there are no perfect trials.” People v Serges, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). In Serges, “for safety reasons, the trial court gave defendant a choice between wearing a mask or sitting at a distance from his trial counsel.” Id. at ___. “Defendant chose to wear a mask.” Id. at ___. “While defendant’s nose and mouth were covered by a cloth mask, his eyes and upper face were visible.” Id. at ___. Further, “the witnesses removed their masks when they were on the stand and testifying. When defense counsel cross-examined the witnesses, he also removed his mask.” Id. at ___. “Nothing blocked the witnesses’ view of defendant during trial in this case nor interfered with his view of the witnesses testifying.” Id. at ___. However, the defendant “insist[ed] that, because he had to wear a mask, the witnesses were allowed to provide testimony without viewing him.” Id. at ___. On appeal, the defendant argued “that requiring him to either wear a mask or sit six feet away from his attorney denied him a fair trial” because “the wearing of a mask may have impacted in the minds of the jurors the presumption of innocence[.]” Id. at ___.
While “historically wearing a face mask, such as bandits wearing bandanas over their faces, evidences criminality,” the Serges Court noted that “at the time of [defendant’s] trial, wearing masks had become a normal part of functioning in society.” Id. at ___. “Face masks were being worn in conformity with national, if not global, safety protocols against the COVID-19 pandemic.” Id. at ___. Moreover, the Serges Court observed that a “cloth mask covering only part of defendant’s face is not the same as a barrier to view.” Id. at ___(rejecting defendant’s suggestion “that the jury likely disregarded the presumption of innocence because he wore a mask covering his nose and mouth.”) “Defendant remained physically in the room with the witnesses, they could see him, he could see them, and they underwent cross-examination by his unmasked counsel.” Id. at ___. Because the defendant “presented nothing to overcome the presumption that jurors are impartial,” the Court of Appeals was “not persuaded that defendant suffered a violation of his fair-trial right.” Id. at ___.
The defendant’s right to a fair and impartial trial generally requires that the defendant not appear before the jury in jail or prison clothes. Estelle v Williams, 425 US 501, 504-505 (1976) (recognizing the right of criminal defendants to be tried in civilian clothing). Defendants are “entitled to wear civilian clothes rather than prison clothing” because it is important that a defendant “be brought before the court with the appearance, dignity, and self-respect of a free and innocent man.” People v Shaw, 381 Mich 467, 474 (1969) (quotation marks and citation omitted) (stating that the trial court generally has no discretion in this matter).“A defendant’s timely request to wear civilian clothing must be granted.” People v Harris, 201 Mich App 147, 151-152 (1993) (noting, however, that an exception is permissible where the defendant’s clothing is not recognizable as jail or prison garb).
“[T]he main concern regarding a defendant attending trial while wearing a jail jumpsuit is that his right to be presumed innocent would be affected because jurors might presuppose guilt from the fact the defendant was in jail.” People v Serges, ___ Mich App ___, ___ (2024). However, “[t]here is no authority . . . that viewing a video in which the defendant is seen in jail garb would so undermine the presumption of innocence as to violate the constitutional guarantees of due process.” People v Horton, 341 Mich App 397, 402 (2022) (observing that “the jury briefly saw a video of the defendant wearing jail garb but only saw him wearing civilian clothing when in person at trial”); see also Serges, ___ Mich App at ___ (holding that a brief statement by a potential juror—a deputy sheriff—”regarding defendant being in jail did not affect the fairness of defendant’s trial or undermine the presumption of innocence equivalent to being required to go through an entire trial dressed in jail garb”).
MCR 6.009 governs the procedure regarding the use of restraints on a criminal defendant in court proceedings that are or could be before a jury.1 Specifically, MCR 6.009 provides:
(A) Instruments of restraint, such as handcuffs, chains, irons, or straitjackets, cloth and leather restraints, and other similar items, may not be used on a defendant during a court proceeding that is or could have been before a jury unless the court finds, using record evidence, that the use of restraints is necessary due to one of the following factors:
(1) Instruments of restraint are necessary to prevent physical harm to the defendant or another person.
(2) The defendant has a history of disruptive courtroom behavior that has placed others in potentially harmful situations or presents a substantial risk of inflicting physical harm on himself or herself or others as evidenced by recent behavior.
(3) There is a founded belief that the defendant presents a substantial risk of flight from the courtroom.
(B) The court’s determination that restraints are necessary must be made outside the presence of the jury. If restraints are ordered, the court shall state on the record or in writing its findings of fact in support of the order.
(C) Any restraints used on a defendant in the courtroom must allow the defendant limited movement of the hands to read and handle documents and writings necessary to the hearing. Under no circumstances should a defendant be restrained using fixed restraints to a wall, floor, or furniture.
(D) If the court determines restraints are needed, the court must order restraints that reflect the least restrictive means necessary to maintain the security of the courtroom. A court should consider the visibility of a given restraint and the degree to which it affects an individual’s range of movement. A court may consider, but is not limited to considering, participation by video or other electronic means; the presence of court personnel, law enforcement officers, or bailiffs; or unobtrusive stun devices.”
Freedom from shackling in the presence of the jury is an important component of a fair trial. People v Dixon, 217 Mich App 400, 404 (1996). “[T]he use of shackles at trial ‘affront[s]’ the ‘dignity and decorum of judicial proceedings that the judge is seeking to uphold.’” Deck v Missouri, 544 US 622, 631 (2005), quoting Illinois v Allen, 397 US 337, 344 (1970). Absent a showing of manifest need for restraints, appearing shackled or handcuffed before a jury may adversely affect a defendant’s constitutional presumption of innocence, People v Dunn, 446 Mich 409, 425 n 26 (1994); interfere with a defendant’s ability to communicate with his attorney, Allen, 397 US at 344; and interfere with a defendant’s ability to participate in his or her own defense (by freely choosing to testify), Deck, 544 US at 631.
“[G]iven their prejudicial effect, due process does not permit the use of visible restraints if the trial court has not taken account of the circumstances of the particular case.” Deck, 544 US at 632. A defendant may appear before the jury shackled only on a finding, supported by record evidence, that it is necessary to prevent escape or injury to persons in the courtroom or to maintain order. Dunn, 446 Mich at 425. The decision is discretionary with the trial court, and the trial court should consider the totality of the circumstances, including the defendant’s background. Dixon, 217 Mich App at 404-405. A decision to restrain a defendant may be based on information from the Department of Corrections or a county jail. Id. at 405.
“‘[T]he Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial.’” People v Arthur, 495 Mich 861, 862 (2013) (quoting Deck, 544 US at 629, with added emphasis, and holding that “the trial court did not violate the defendant’s due process rights by ordering [him] to wear leg shackles” in light of his reported escape attempt and his history of physical violence; “the court sought to shield the defendant’s leg restraints from the jury’s view[, and] . . .no juror actually saw the defendant in shackles”). See also Mendoza v Berghuis, 544 F3d 650, 654-656 (CA 6, 2008)2 (the defendant’s due process rights were not violated where his leg restraints were concealed from the jury by “skirting both counsel tables with brown paper for the duration of the trial,” and where he was unshackled to testify); People v Payne, 285 Mich App 181, 186 (2009) (“even if a trial court abuses its discretion and requires a defendant to wear restraints, the defendant must show that he suffered prejudice as a result of the restraints to be entitled to relief;”; if the jury was unable to see shackles on the defendant, no prejudice occurs.
A defendant’s constitutional rights are not violated when jurors see him or her shackled during transport to or from the courtroom. Mendoza, 544 F3d at 655-656. See also United States v Moreno, 933 F2d 362, 368 (CA 6, 1991) (discussing the reasonableness of transporting defendants with restraints).
“The trial court did not unconstitutionally ‘nullify’ the defendant’s right to self-representation by declining to remove the defendant’s leg shackles.” Arthur, 495 Mich at 862. “While a defendant’s right to self-representation encompasses certain specific core rights, including the right to be heard, to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at times, the right to self-representation is not unfettered.” Id., citing McKaskle v Wiggins, 465 US 168, 174, 176-178 (1984). “That the defendant elected to relinquish his right of self-representation rather than exercise that right while seated behind the defense table does not amount to a denial of the defendant’s right of self-representation.” Arthur, 495 Mich at 862 (citation omitted).
The court may also face the question whether it is proper to handcuff or otherwise restrain witnesses. “[T]he propriety of handcuffing or shackling a testifying witness is subject to the same analysis as that for defendants[.]” People v Banks, 249 Mich App 247, 256-258 (2002) (holding that the trial court abused its discretion to control trial proceedings and infringed on the defendant’s right to a fair trial by ordering an alibi witness to be handcuffed without facts on the record to support the need to restrain the witness).
“[I]f a defendant is unruly, disruptive, rude, and obstreperous, a trial court is within its discretion to gag a defendant when repeated warnings have been ineffective.” People v Conley, 270 Mich App 301, 309 (2006) (holding that the defendant was not denied his right to a fair trial when, after he interrupted the court proceedings on several occasions, the trial judge threatened to tape his mouth shut if he continued to make disruptive verbal outbursts).
There are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant: (1) binding and gagging, and thereby keeping the defendant present; (2) holding the defendant in contempt; and (3) removing the defendant from the courtroom until defendant promises properly conduct. Allen, 397 US at 343-344. In some situations, binding and gagging might be the most fair and reasonable way to handle a defendant who is disruptive, although these procedures should be used only “as a last resort.” Id. at 344.
1.Failure to Appoint Foreign Language Interpreter3
The lack of simultaneous translation as provided for in MCL 775.19a may implicate a defendant’s rights to due process of law guaranteed by the United States and Michigan Constitutions. People v Gonzalez-Raymundo, 308 Mich App 175, 188 (2014), citing US Const, Am V; US Const, Am XIV; Const 1963, art 1, § 17. “Specifically, a defendant has a right to be present at a trial against him, . . . and a defendant’s lack of understanding of the proceedings against him renders him effectively absent[;]” furthermore, “lack of simultaneous translation impairs a defendant’s right to confront witnesses against him and participate in his own defense.” Gonzalez-Raymundo, 308 Mich App at 188.
2.Disruptive Conduct of Defendant
A defendant has the constitutional right to be present at his or her trial, which includes voir dire. US Const, Am VI; Const 1963, art 1, § 20; Allen, 397 US at 338; People v Buie (On Remand) (Buie IV), 298 Mich App 50, 56-57 (2012). Michigan law requires that a defendant charged with a felony be present at his or her trial. MCL 768.3. However, neither the constitutional nor the statutory right to be present is absolute. People v Kruger, 466 Mich 50, 54 n 9 (2002). When the conduct of the defendant disrupts the administration of justice, the court has the authority to examine the circumstances of the case and take appropriate action. Id. at 54. “Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself [or herself] consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.” Allen, 397 US at 343.
A trial court’s decision to remove a defendant from the courtroom during trial is reviewed for an abuse of discretion. See Buie IV, 298 Mich App at 58-59 (holding that the defendant’s removal from the courtroom following a single interruption of voir dire was not justified).
In People v Kammeraad, 307 Mich App 98, 100, 120 (2014), a competent defendant “defiantly refused to participate in the process or to accept any and all services, regularly interrupted the courts with his denunciation of the justice system, made far-fetched claims that had no basis in fact or law, and refused to answer questions posed to him by the courts.” Id. at 120. “Furthermore, [the] defendant defiantly showed up in inappropriate attire and in a wheelchair that was not needed, given that he was ambulatory, accused the courts of being derelict in their duties, needlessly demanded an interpreter, as it [was] quite evident that defendant [was] fluent in the King’s English, and generally engaged in disrespectful, disorderly, and disruptive behavior.” Id. Therefore, the defendant forfeited his right to be present and was properly excluded from the courtroom during his trial. Id. at 100, 149-150..
A defendant may waive his or her right to be present by failing to appear for trial. People v Woods, 172 Mich App 476, 479 (1988). Two elements are necessary for a valid waiver of the right to be present at trial: (1) specific knowledge of the right, and (2) an intentional decision to abandon the right. Buie IV, 298 Mich App at 57; Woods, 172 Mich App at 479.
“A defendant’s voluntary absence from the courtroom after trial has begun waives his right to be present and does not preclude the trial judge from proceeding with the trial to conclusion.” People v Swan, 394 Mich 451, 452 (1975). See also Buie IV, 298 Mich App at 58-59 (the defendant, who “specifically asked to be excused from the courtroom[,]” could not be found to have voluntarily waived his right to be present because “[t]he record [was] silent[] . . . as to whether he was ever specifically apprised of his constitutional right to be present[;]” nor did the defendant waive his right to be present by interrupting voir dire, because his removal following his single interruption of the proceedings was not justified).
The test for determining whether a defendant’s absence from a part of a trial requires reversal of his or her conviction is whether there is any reasonable possibility of prejudice. People v Armstrong, 212 Mich App 121, 129 (1995); see also Buie IV, 298 Mich App at 59-60 (the defendant’s absence “for only a short period during voir dire” before he agreed to behave and was allowed to return did not result in any reasonable possibility of prejudice, where the “evidence of [the] defendant’s guilt was overwhelming” and he was present for the remainder of trial).
The trial court is not required to advise the defendant that he or she has a right to testify, or to obtain a waiver of that right on the record. People v Harris, 190 Mich App 652, 661-662 (1991).
A defendant may have the right to be taken off antipsychotic drugs before testifying unless the court finds that he or she presents a risk to himself or herself, or others. See Riggins v Nevada, 504 US 127, 134, 137 (1992) (holding that a defendant has a due process liberty interest in freedom from the involuntary administration of anti-psychotic drugs).
1 MCR 6.009 is applicable to felony, misdemeanors, and juvenile matters through MCR 6.001(A)-(C).
2 Although the decisions of lower federal courts may be followed if considered persuasive, Michigan state courts are not bound by them. People v Gillam, 479 Mich 253, 261 (2007).
3 See Section 1.7 for discussion of foreign language interpreters.