The Confrontation Clause of the Sixth
Amendment versus the Self-created Loss of the Privilege by consent, or at times
even by misconduct Examined in Illinois v. Allen
BY: Dr. Peter A. Barone, Esq.
It is
understood that an accused has the right to be present at his or her trial and
has the right, under the Confrontation Clause of the Sixth Amendment, but does
that same defendant have the right to be present during a trial when they
voluntarily and intentionally cause a disruption of the trial proceedings is an
important question that is addressed in the following assessment via the case
of Illinois v. Allen, 397 U.S. 337
(1970).
The
constitutional right of an accused to be present at his trial must be
considered in this context because in addition to that right there is also a
requirement that the dignity and decorum of the courtroom also be maintained and
upheld. An examination of The Confrontation Clause of the Sixth Amendment to
the United States Constitution provides that: "In all criminal
prosecutions, the accused shall enjoy the right to be confronted with the witnesses
against him.” (Klotter, 2000). The
Supreme Court has held that the Fourteenth Amendment makes the guarantees of
this clause obligatory upon the States Pointer v. Texas, 380 U.S. 400
(1965).
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. Lewis
v. United States, 146 U.S. 370 (1982). The question presented in this case,
Illinois v. Allen (1970 is whether an accused can claim the benefit of this
constitutional right to remain in the courtroom while, at the same time, he
engages in speech and conduct which is so noisy, disorderly, and disruptive
that it is exceedingly difficult or wholly impossible to carry on the trial.
Activities by the defendant such as these would not allow for a just and fair
trial for either the defense or the prosecution and could also be a designed
activity wherein the defendant is attempting to solicit a mistrial which would
be in the defendants favor due to the prosecution having to try the defendant
again at an additional cost of time and money.
In the
case of Illinois v. Allen, 397 U.S.
337 (1970), the Respondent, who was on trial for robbery, was removed from the
courtroom for repeated disruptive behavior and the use of vile and abusive
language directed at the trial judge, notwithstanding the judge's prior warning
that removal would follow another outburst. Appointed counsel represented
respondent during the period respondent was not allowed in the courtroom,
principally the presentation of the State's case. Having given some assurances
of good conduct, respondent was allowed to return to the courtroom while
appointed counsel presented his defense. Respondent was convicted. Following
the State Supreme Court's affirmance, respondent filed a petition for a writ of
habeas corpus in federal court, contending that he had been deprived of his
right under the Sixth and Fourteenth Amendments to confront the witnesses
against him. The District Court declined to issue the writ. The Court of Appeals
reversed, holding that a defendant's Sixth Amendment right to attend his own
trial was so "absolute" that, regardless of how unruly his conduct,
he could never be held to have lost that right so long as he insisted on it, as
respondent had.
The
Court of Appeals felt that the defendant's Sixth Amendment right to be present
at his own trial was so "absolute" that, no matter how unruly or
disruptive the defendant's conduct might be, he could never be held to have
lost that right so long as he continued to insist upon it, as Allen clearly
did. Therefore the Court of Appeals concluded that a trial judge could never
expel a defendant from his own trial, and that the judge's ultimate remedy,
when faced with an obstreperous defendant, like Allen, who determines to make
his trial impossible, is to bind and gag him. An assessment of the Court of
Appeals decision in this case appears to be bereft of logic in that if the
defendant acts in this manner during the trial how can the trial proceed and
how can any evidence be presented and heard or absorbed by the jury who has the
responsibility to make an informed decision as to the defendant being guilty
not guilty; with the logical answer being they cannot.
In
reviewing the appeal in this case Illinois
v. Allen (1970), the Supreme Court felt that they could not agree that the
Sixth Amendment, the cases upon which the Court of Appeals relied, or any other
cases of this Court so handicap a trial judge in conducting a criminal trial.
The broad dicta in Hopt v. Utah, supra, and Lewis v. United
States, 146 U.S. 370 (1892), that a trial can never continue in the
defendant's absence have been expressly rejected Diaz v. United States,
223 U.S. 442 (1912). The Supreme Court accepted instead the statement of Mr.
Justice Cardozo, who, speaking for the Court in Snyder v. Massachusetts,
291 U.S. 106 (1934), said: "No doubt the privilege of personally
confronting witnesses may be lost by consent, or at times even by
misconduct." 397 U.S. 343.
Although
mindful that courts must indulge every reasonable presumption against the loss
of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, U.S 464
(1938), the Court explicitly held that a defendant can lose his right to be
present at trial if, after he has been warned by the judge that he will be
removed if he continues his disruptive behavior, he nevertheless insists on
conducting himself in a manner so disorderly, disruptive, and disrespectful of
the court that his trial cannot be carried on with him in the courtroom. Once
lost, the right to be present can, of course. be reclaimed as soon as the
defendant is willing to conduct himself consistently with the decorum and
respect inherent in the concept of courts and judicial proceedings. Looking at
the situation which was presented to the trial court judge in the instant case
the decision by the Supreme Court made logical sense and afforded the defendant
with the opportunity to keep himself in the court room during the trial in a
normal capacity, have himself removed or be present in a less than comfortable
position yet still adhering to his Sixth Amendment Right.
It is
essential to the proper administration of criminal justice that dignity, order,
and decorum be the hallmarks of all court proceedings in our country. The
flagrant disregard in the courtroom of elementary standards of proper conduct
should not and cannot be tolerated. The Justices in their opinion believe that
the when a trial judge is confronted with disruptive, contumacious, stubbornly
defiant defendants must be given sufficient discretion to meet the
circumstances of each case.
No one
formula for maintaining the appropriate courtroom atmosphere will be best in
all situations. We think there are at least three constitutionally permissible
ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind
and gag him, thereby keeping him present; (2) cite him for contempt; (3) take
him out of the courtroom until he promises to conduct himself properly.
Therefore,
there can be no doubt whatever that the governmental prerogative to proceed
with a trial may not be defeated by conduct of the accused that prevents the
trial from going forward. Over a half century ago, this Court, in Diaz v.
United States, 223 U.S. 442, 223, 223 U.S. 457-458 (1912) approved to be
what the governing principle is. The Supreme Court quoted from Falk v.
United States, 15 App. D.C. 446 (1899), the case of an accused who
appeared at his trial but fled the jurisdiction before it was completed. The
court proceeded in his absence, and a verdict of guilty was returned. In
affirming the conviction over the accused's objection that he could not be
convicted in his absence, the Court of Appeals for the District of Columbia
said:
"It does
not seem to us to be consonant with the dictates of common sense that an
accused person should be at liberty, whenever he pleased, to break up a trial
already commenced which could, in the end, result in a mistrial benefiting him
and going against the prosecution. The practical result of such a proposition,
if allowed to be law, would be to prevent any trial whatever until the accused
person himself should be pleased to permit it. This would be a
travesty of justice which could not be tolerated. The Court does not appear to think
that any rule of law or constitutional principle leads to any conclusion that
would be so disastrous as well to the administration of justice as to the true interests of civil liberty” Falk v. United States, 15 App. D.C. 446 (1899).
The
question is one of broad public policy, whether an accused person, placed upon
trial for crime and protected by all the safeguards with which the humanity of
our present criminal law sedulously surrounds him, can with impunity defy the
processes of that law, paralyze the proceedings of courts and juries and turn
them into a solemn farce, and ultimately compel society, for its own safety, to
restrict the operation of the principle of personal liberty. Neither in
criminal nor in civil cases will the law allow a person to take advantage of
his own wrong.
To allow
the disruptive activities of a defendant like respondent to prevent his trial
is to allow him to profit from his own wrong. The Constitution would protect
none of us if it prevented the courts from acting to preserve the very
processes that the Constitution itself prescribes.
Of
course, no action against an unruly defendant is permissible except after he
has been fully and fairly informed that his conduct is wrong and intolerable,
and warned of the possible consequences of continued misbehavior. In reviewing
the instant case it is apparent that the record makes clear that respondent was
so informed and warned in this case. Thus, there can be no doubt that
respondent, by persisting in his reprehensible conduct, surrendered his right
to be present at the trial.
As the
Court points out, several remedies are available to the judge faced with a
defendant bent on disrupting his trial. He can have him bound, shackled, and
gagged; he can hold him in civil or criminal contempt; he can exclude him from
the trial and carry on in his absence. No doubt other methods can be devised I
join the Court's opinion, and agree that the Constitution does not require or
prohibit the adoption of any of these courses. The constitutional right to be
present can be surrendered if it is abused for the purpose of frustrating the
trial. Due process does not require the presence of the defendant if his
presence means that there will be no orderly process at all. However, I also
agree with the Court that these three methods are not equally acceptable. In
particular, shackling and gagging a defendant is surely the least acceptable of
them. It offends not only judicial dignity and decorum, but also that respect
for the individual which is the lifeblood of the law. It must be remembered
that the court is forced to make the decision that normally would not have to
be made but for the voluntary disruptive actions of the defendant. The
defendant is entering into this area of the court making the decision due to
the defendant’s unclean hands and the defendant cannot expect to be able to act
in this manner and have the entire trial process be derailed due to their petulant
child-like behavior.
A
suggestion would be that when a defendant is excluded from his trial, the court
should make reasonable efforts to enable him to communicate with his attorney,
and, if possible, to keep apprised of the progress of his trial. Once the court
has removed the contumacious defendant, it is not weakness to mitigate the
disadvantages of his expulsion as far as technologically possible in the
circumstances.
It is apparent
from the Court’s decision that a defendant can lose his right to be present at
trial if, following the judge's warning that he will be removed if his
disruptive behavior continues, he nevertheless insists on conducting himself in
such a disruptive manner that his trial cannot proceed if he remains in the
courtroom. He can reclaim the right to be present as soon as he is willing to
comport himself with decorum and respect. Pp. 397 U.S. 342 -343.
The
Court examined what a trial judge was confronted with, during a criminal trial,
by a defendant's disruptive conduct could do regarding the exercising of the
court’s discretion to meet the circumstances of the case during these types of
activities, and though no single formula is best for all situations, the Court
advised that there are at least three constitutionally permissible approaches
for the court's handling of an obstreperous defendant: (1) bind and gag him as
a last resort, thereby keeping him present; (2) cite him for criminal or civil
contempt; or (3) remove him from the courtroom, while the trial continues,
until he promises to conduct himself properly. Pp. 397 U.S. 343 -346.
The
decision of the court, which was based on the presented facts of this case, was
that the trial judge did not abuse his discretion, and the respondent, through
his disruptive behavior lost his right to confrontation under the Sixth and
Fourteenth Amendments of the United States Constitution.
References
Diaz v. United States, 223 U.S.
442, 223, 223 U.S. 457-458 (1912).
Falk v. United States, 15 App. D.C. 446 (1899).Hopt v. Utah, supra, and Lewis v. United States, 146 U.S. 370 (1892).
Illinois v. Allen, 397 U.S. 337 (1970).
Johnson v. Zerbst, 304 U.S. 458, U.S 464 (1938).
Klotter, J.C, (2000). Criminal Evidence 7th Ed. Cincinnati, OH: Anderson Publishing.
Lewis v. United States, 146 U.S. 370 (1892).
Pointer v. Texas, 380 U.S. 400 (1965).
Snyder v. Massachusetts, 291 U.S. 106 (1934).
