Rules of Criminal Procedure Criminal Procedure Rule 45: Removal of the disruptive defendant

Upon the direction of the trial judge, a defendant may be removed from the courtroom during his trial when his conduct has become so disruptive that the trial cannot proceed in an orderly manner. Gagging or shackling may be employed if the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, he shall enter into the record of the case the reasons therefor. Whenever physical restraint of a defendant or witness occurs in the presence of the jury trying the case, or whenever the defendant is removed, the judge, at the request of the defendant, shall instruct the jury that such restraint or removal is not to be considered in assessing the proof and determining guilt.

A defendant once removed shall be required to be present in the court building while the trial is in progress. At the time of his removal he shall be advised that he has the right to be returned to the courtroom upon his request and assurances of good behavior. Notwithstanding the failure of a defendant to request to be returned to the courtroom, he shall be returned to the courtroom at appropriate intervals in the absence of the jury, and shall be advised in open court that he will be permitted to remain upon the giving of assurances of good behavior.

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.