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 [...]