Rules of Criminal Procedure  Criminal Procedure Rule 45: Disruptive defendant

A judge may direct that a defendant be removed from the courtroom during trial if the defendant’s behavior becomes so disruptive that the trial cannot proceed in an orderly manner. The judge shall make findings on the record describing the disruptive behavior and explaining how the trial cannot proceed in an orderly manner. At the request of the defendant, the judge shall instruct the jury that the defendant’s removal and absence are not to be considered by the jury.

(i) By defendant’s request. If a defendant in custody refuses to be brought into the courtroom or requests to be absent from the courtroom, the trial may proceed without the defendant’s presence, in the discretion of the judge.

(ii) Based on prior conduct. If the defendant’s prior actions provide a substantial basis for the judge to believe that the defendant’s behavior will be so disruptive that the trial cannot proceed in an orderly manner, the judge may request an assurance of good behavior from the defendant. If the defendant declines to provide an assurance of good behavior, the trial may proceed without the defendant’s presence, in the discretion of the judge.

(iii) Jury instruction. At the request of the defendant, the judge shall instruct the jury that the defendant’s absence is not to be considered by the jury.

A defendant absent from trial under this rule shall be advised that the defendant will be admitted to the courtroom upon request and assurances of good behavior. The judge shall periodically inquire of the defendant, outside the presence of the jury, whether the defendant wishes to be admitted to the courtroom and is willing to provide assurances of good behavior. The defendant shall be provided with the means to contemporaneously hear and, whenever possible, view the proceedings remotely.

(2023)

This rule sets forth the procedures by which a judge may remove a defendant from trial because of the defendant’s disruptiveness. The rule first became effective in 1979, and these amendments bring it into conformity with the procedures in the overwhelming majority of jurisdictions that address the matter and the current experience of Massachusetts courts with remote participation. The changes from the prior rule are 1) the elimination of references to shackling or gagging a disruptive defendant, 2) the addition of a provision for the corollary problem of a defendant who refuses to enter or requests to leave the courtroom, 3) the addition of a provision for remote hearing or viewing of courtroom proceedings by a defendant who is absent under the rule, and 4) the elimination of references to gender.

This rule does not address unusual security measures a judge may in the exercise of discretion determine are necessary. See Commonwealth v. Brown, 364 Mass. 471, 478-480 and nn 18-20 (1973) (listing factors a judge might consider in assessing whether unusual security precautions are necessary); Commonwealth v. Martin, 424 Mass. 301, 307-310 (1997) (reiterating Brown’s recommendations that such measures should be initially agreed to by custodial authorities and the parties, and that absent such agreement the judge should have a hearing with the defendant and counsel on the record to set forth reasoning for such measures); and Commonwealth v. Rocheleau, 90 Mass. App. Ct. 634, 637 (2016) (Trial judge’s observations that defendant was “large” and in custody and that the ground floor courtroom had a publicly accessible back door were not particularized findings that “the defendant threatened violence, behaved in a threatening or disruptive manner, or otherwise posed an evident risk of flight” which could support any unusual security measures, though error was harmless.). When necessary, unusual security measures “should be accomplished in the least obtrusive and disruptive manner, with an effort made to minimize any adverse impact.” Standard 6-3.2 of the American Bar Association’s Criminal Justice Standards – Special Functions of the Trial Judge, 3rd Ed., 2000 (“Security in court facilities”).

A criminal defendant has a fundamental right to be present at trial guaranteed by both the Federal and state constitutions. See Illinois v. Allen, 397 U.S. 337, 338 (1970) (“One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial.”); Commonwealth v. Bergstrom, 402 Mass. 534, 543 (1988) (“[I]t is a mainstay of constitutional jurisprudence in the Commonwealth that a defendant has a corollary right to be present personally throughout his trial.”). The defendant also has a right as a matter of due process to be present at all critical stages of the proceedings. United States v. Gagnon, 470 U.S. 522, 526 (1985) (citing Snyder v. Massachusetts, 291 U.S. 97 (1934)). See also Mass. R. Crim. P. 18 (Presence of Defendant).

The defendant’s right to be physically present at trial, however, can be forfeited by misconduct or waived by consent. Allen, 397 U.S. at 338. If the misconduct involves disruption or threatened disruption in the courtroom, the defendant can be removed from the courtroom. Mass. R. Crim. P. 45(a). If a defendant in custody refuses to enter the courtroom or requests to leave the courtroom, the defendant can thereby waive the right to be physically present and the trial may proceed in the defendant’s absence. Mass. R. Crim. P. 45(b). In either case, the decision is committed to the sound discretion of the trial judge. Commonwealth v. Scionti, 81 Mass. App. Ct. 266, 277 (2012). However, a judge should make particularized findings before allowing the trial to proceed in the defendant’s absence. Rocheleau, 90 Mass. App. Ct. at 637.

Removal of Defendant

The first sentence of this rule comes verbatim from Standard 6-3.8 of the American Bar Association’s Criminal Justice Standards – Special Functions of the Trial Judge, 3rd Ed., 2000 (“The disruptive defendant”). While the Standard (first published in 1971-72) then states that removal is “preferable to gagging or shackling the disruptive defendant,” the overwhelming majority of jurisdictions whose rules address remedies a judge may take to control a disruptive defendant now mention only removal. See, e.g., Fed. R. Crim. P. 43(c)(1)(C). This amendment eliminates the language that “Removal is preferable to gagging or shackling the disruptive defendant,” because of the extraordinary danger presented by restricting the airway of an uncooperative or highly agitated person, because of the experience of so many other jurisdictions, and because removal and remote observation is a much safer and now more readily available alternative.

Before a judge removes a defendant because of disruptive behavior, the defendant must be warned that removal may occur if the disruptive behavior continues. Commonwealth v. Chubbuck, 384 Mass. 746, 751 (1981) (defendant must be “appropriately warned and continu[e] his disruptive behavior despite such warning”). See also Commonwealth v. Senati, 3 Mass. App. Ct. 304, 307-308 (1975) (No abuse of discretion when trial judge removed defendant from courtroom after defendant’s outbursts before the jury and his repeated refusal to answer the judge whether he would remain silent during closing arguments). The judge removing a defendant for disruptive behavior must make particularized findings describing the behavior and explaining how the trial cannot proceed in an orderly manner due to it. A description is required as behavior may not otherwise be apparent from the record.

A judge who removes a defendant from the courtroom must advise the defendant that the defendant may return upon providing assurances of proper behavior. Commonwealth v. North, 52 Mass. App. Ct. 603, 618 (2001) (Judge’s handling of defendant’s removal was “exemplary” where court “firmly established that such tactics [of inappropriate outbursts] would not be countenanced, but promptly allowed the defendant the opportunity to return upon a promise of good behavior.”). Upon the defendant’s request, the jury must be instructed not to consider the defendant’s absence from the trial.

Absence of Defendant

A defendant in custody may choose to be absent from the trial by refusing to enter the courtroom or by requesting to leave the courtroom and can thereby waive the right to be physically present at trial. While the judge has discretion to proceed with the trial in the defendant’s absence, because the right to be physically present at one’s trial is fundamental, its waiver must be knowing and voluntary. Commonwealth v. L’Abbe, 421 Mass. 262, 268-269 (1995) (Defendant’s daily colloquy with judge and signing a statement each day regarding waiver of his presence was an adequate waiver even at a capital trial.). A defendant who is simply absent without explanation has not thereby waived the right to be physically present at trial. Commonwealth v. Nwachukwu, 65 Mass. App. Ct. 112, 118 (2005) (Defendant who left courtroom at the instruction of inexperienced trial counsel after the judge ordered sequestration of the witnesses did not thereby waive right of physical presence at trial.). A defendant must be competent to waive the right to be physically present at trial, which requires the same level of competency as that required to stand trial. L’Abbe, 421 Mass. at 268-269.

If the defendant’s prior actions provide a substantial basis for the judge to believe that the defendant’s behavior will be so disruptive that the trial cannot proceed in an orderly manner, the judge may request an assurance of good behavior. If the defendant refuses to provide such assurances, the judge has the discretion to proceed with the trial in the defendant’s absence. In this instance, the judge need not bring the defendant into the courtroom for a warning that the trial will nevertheless proceed because this would create the very risk the judge seeks to avoid. Scionti, 81 Mass. App. Ct. at 277 (Trial judge’s proceeding with trial without first bringing defendant in for a warning that trial would continue in his absence was not an abuse of discretion when defendant repeatedly refused to be brought in, judge gave defendant multiple opportunities to be brought into the courtroom, and judge arranged for a communications system for defendant to remotely hear courtroom proceedings.). As with removal of a disruptive defendant, the court should make particularized findings setting forth the defendant’s prior actions that provide the substantial basis to believe that the defendant’s behavior will be so disruptive that the trial cannot proceed in an orderly manner.

The removal of a pro se defendant implicates the fundamental right of self-representation as well as the right to be present at trial. Faretta v. California, 422 U.S. 806, 834-835 n 46 (1975) (“the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct”); Commonwealth v. Means, 454 Mass. 81, 92 n 18 (2009). Removing a pro se defendant from the courtroom necessarily means that the defendant forfeits not only the right to be physically present at trial but also the right of self-representation.

Rights of Defendant

Whenever the defendant is absent upon the defendant’s request, the judge must advise the defendant that the defendant may be admitted upon request. Whenever the defendant is absent by removal or because of prior actions, the judge must advise the defendant that the defendant may be admitted upon providing assurances of good behavior. The judge must periodically inquire of the defendant, outside the presence of the jury, whether the defendant wishes to be admitted to the courtroom and is willing to provide assurances of good behavior. See North, 52 Mass. App. Ct. at 618 and n 15 (“The judge firmly established that such [disruptive] tactics would not be countenanced, but promptly allowed the defendant the opportunity to return upon a promise of good behavior” by “sending a note through the court officers after only a few minutes inquiring whether the defendant was prepared to come back and sit quietly.”). The absent defendant must be provided means to hear and, if it is possible, observe proceedings in the courtroom. See Scionti, 81 Mass. App. Ct. at 281 (noting judge’s arrangement for audio link between court room and defendant’s cell, and for presence of second attorney outside defendant’s cell to facilitate communication between defendant and trial counsel).

(1979)

Rule 45 is drawn from § 6.8 of the ABA Standards Relating to the Function of the Trial Judge (Approved Draft, 1972), but differs in that the rule requires that at the time of removal the defendant is to be informed of his right to return upon his request and assurance of good conduct. Section 4.1 of the ABA Standards Relating to Trial by Jury (Approved Draft, 1968) in part provides the basis of subdivision (a). See Fed.R.Crim.P. 43(b)(2); Rules of Criminal Procedure (U.L.A.) Rule 713(b)(3) (1974). 

This rule, in conjunction with Rules 43-44, Summary Contempt and Contempt, provides a means of dealing with obstreperous defendants. In many cases the measures provided by this rule may be viewed as less drastic than invocation of the contempt power to control the unruly defendant. 

While the sixth and fourteenth amendments guarantee the right of a defendant to confront the witnesses against him in a state criminal proceeding, that right has been held by the Supreme Court to be less than absolute. In Snyder v. Massachusetts, 291 U.S. 97 (1934), the Court indicated that there was “[n]o doubt the privilege [of personally confronting witnesses] may be lost by consent or at times even by misconduct.” Id. at 106. In Illinois v. Allen, 397 U.S. 337 (1970), a unanimous Court affirmed the principle that the sixth amendment right to confront witnesses can be forfeited. 

Subdivision (a)

The Allen Court recognized three methods of dealing with an obstreperous defendant as constitutionally permissible: (1) binding and gagging the defendant while present in the courtroom; (2) citing the defendant for contempt; or (3) removing the defendant from the courtroom until he promises to conduct himself properly. Id. at 343-44. 

While gagging, shackling and other unusual measures are obviously less offensive to the defendant’s right to be present at trial than his removal, such measures are not without attendant difficulties: 

These displays tend to create prejudice in the minds of the jury by suggesting that a defendant is a bad and dangerous person whose guilt may be virtually assumed; they may interfere with a defendant’s thought processes and ease of communication with counsel; intrinsically they give affront to the dignity of the trial process. 

Commonwealth v. Brown, 364 Mass. 471, 475 (1973) (Footnote omitted). While Brown dealt specifically with defendants who presented unusual security risks, the potential for prejudice to the unruly defendant is no less real, albeit mitigated perhaps by the fact that the jury will have observed the disruptive behavior and not presume guilt of the offense charged. In either case, “[w]hen special restraints are imposed, the judge’s charge to the jury should seek to quell prejudice by reasoning and warning against it.” Commonwealth v. Brown, supra at 476. Accord Commonwealth v. Cavanaugh, 371 Mass. 46, 58 (1977). See ABA Standards Relating to Trial by Jury § 4.1(c) (Approved Draft, 1968); ABA Standards Relating to the Function of the Trial Judge § 5.3(b)(ii) (Approved Draft, 1972). 

In Commonwealth v. Senati, 3 Mass.App.Ct. 304 (1975), on facts similar to Illinois v. Allen, supra, the Appeals Court approved the practice of removing a defendant who refuses to observe standards of courtroom decorum. Section 6.8 of the ABA Standards Relating to the Function of the Trial Judge (Approved Draft, 1972) endorses this practice as preferable to gagging or shackling the disruptive defendant. 

Whether the obstreperous defendant is restrained or removed, the trial judge is to state his reasons for such action on the record. See Commonwealth v. Brown, supra at 479; ABA Standards Relating to the Function of the Trial Judge § 5.3(b)(i) (Approved Draft, 1972). 

Subdivision (b)

The defendant who has been removed from the courtroom is accorded certain rights by this subdivision. First, the defendant is to be kept present in the court building while his trial is in progress. This is not intended to be read literally, but rather only to require that the defendant be kept in custody within reasonable proximity to the court, i.e., in a jail or police station adjacent to the courthouse. 

Further, the defendant is to be given the opportunity of learning of the progress of his trial through his counsel at reasonable intervals. ABA Standards Relating to the Function of the Trial Judge § 6.8 (Approved Draft, 1972). Where feasible, the defendant should be provided with means to monitor the proceedings. See concurring opinion of Justice Brennan in  Illinois v. Allen, 397 U.S. 337, 351 (1970). 

Secondly, the defendant is to be advised at the time of his removal of his continuing right to return upon his request and assurance of good behavior. ABA Standards, supra. 

Finally, and notwithstanding the defendant’s failure to request return, he is to be returned to the courtroom periodically and advised that he will be permitted to remain upon the giving of assurances of good behavior. To the ABA Standards, supra, is added the provision that the defendant is to be returned with the jury not present.